COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72501 OSCAR CARTER : JOURNAL ENTRY : AND Plaintiff-appellant : OPINION : -vs- : : NEW BUCKEYE REDEVELOP. : CORP., ET AL. : : Defendants-appellees: DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CP-CV-294045 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: KENNETH D. MYERS, ESQ. JAMES H. HEWITT, ESQ. 701 Citizens Building Director of Law 850 Euclid Avenue City of East Cleveland Cleveland, Ohio 44114 14340 Euclid Avenue East Cleveland, Ohio 44112 DYKE, P.J.: Appellant, Oscar Carter, appeals the order of the trial court granting a dismissal in favor of defendant-appellees, New Buckeye Redevelopment Corporationand Buckeye Area Development Corporation. -2- The motion for dismissal was granted after the close of plaintiff- appellant's evidence at a bench trial, pursuant to Civ. R. 41(B)(2). For the following reasons, we reverse and remand. Buckeye Area Development Corporation ( BADC ) is a not for profit corporation. New Buckeye Redevelopment Corporation ( New Buckeye ) is a wholly owned subsidiary of BADC, which purchased and managed real estate for BADC. Oscar Carter served on the board of trustees of BADC. BADC became interested in purchasing the Laudis Building, located at 11902 Buckeye Road. Carter and his wife, Tandrea Carter, purchased this property in 1983. The minutes of the June 23, 1993 BADC board meeting state: BADC planned to obtain financing in part from a loan from Society Bank. The board approved the project, subject to receipt of an appraisal of the property which supports the purchase price of the property, as is. The minutes further state that Carter was present at the meeting, but did not participate in the vote. David Bailey of BADC testified that the board of trustees had authorized the project to go forward, subject to an appraisal. The next day, June 24, 1993, a document entitled, Offer to Buy Real Estate and Acceptance was signed by Carter and signed on behalf of New Buckeye by Skip Sipos. Skip Sipos was the secretary of New Buckeye and BADC, and executive director of BADC. Sipos testified that he was authorized to sign purchase agreements on behalf of New Buckeye. David Bailey, Chairman of the Board of BADC and Vice President of New Buckeye, testified that Sipos had the -3- authority to sign purchase agreements. The June 24 agreement was written by New Buckeye's attorney. The Offer to Buy Real Estate and Acceptance provided that New Buckeye agreed to buy and Carter agreed to sell the Laudis building for $97,500. The Buyer's offer would be open for acceptance by the seller until June 30, 1993. Seller was required to furnish marketable title by June 30, 1993, but would have thirty days after receipt of notice to remove title defects. The document stated the following concerning the condition of the premises: 4. . . .upon Buyer's completion of its warranties and covenants, Seller shall deposit into escrow its certification that Buyer has completed all required repairs, improvements and significant improvements to the Property as required as part of the Purchase Price. . . . 8. CONDITION OF THE PROPERTY: Seller warrants that the Property is being sold AS IS . . .Buyer understands that all code violations, current and future, become its sole responsibility upon the signing of this contract. . The document further provided that title shall transfer by recording the deed on or before July 30, 1993, unless the parties agreed otherwise. The "Offer to Buy . . ." contained an integration clause, which stated: This Agreement constitutes the entire agreement between the parties. The document did not state that the agreement was contingent upon approval by the board of directors, or upon obtaining an appraisal. The document stated that the property was not subject to any encumbrances, although in fact, there were three mortgages on the property. -4- The parties agreed to a two week extension of the closing date, until July 13, 1993, to allow New Buckeye to obtain a loan. New Buckeye never obtained a loan. Sometime in August, 1993, New Buckeye sent Carter a document entitled First Modification and Extension of Offer to Buy Real Estate and Acceptance . This document purported to modify the terms of the June 24, 1993 document by: (1) extending the closing date to October 30, 1993, (2) making the purchase of the property contingent upon Buyer's lender's acceptance of an environmental audit, (3) making the purchase contingent upon an appraisal of the property to support the purchase price; and other modifications. Carter refused to sign the modification. An environmental audit revealed the presence of heating oil tanks buried beneath the building. As a result of this audit, Society Bank turned down the loan. In a letter dated September 25, 1993, New Buckeye stated that it withdrew its offer to extend the closing date for acquisition of the property. Carter never attempted to tender a marketable deed. On May 30, 1993, Tandrea Carter executed a quitclaim deed, quitclaiming her interest in the property to appellant-Carter. The quitclaim deed was not filed until March 3, 1994. No appraisal of the value of the property ever took place. In December of 1993, Carter reported to the City of Cleveland that one of his tenants was selling drugs. As a result, the City gave Carter a notice of building code violations, and a notice that the City was going to board up the property. New Buckeye had not -5- done anything to remedy the housing code violations. The Cleveland Municipal Court granted a restraining order to prevent the property from being boarded up. All of the tenants left the building by March, 1994. Carter decided not to replace the tenants, because Carter could not afford the $15,000 plus needed to remedy the code violations. Society Bank filed a foreclosure action on the building, because Carter stopped making the mortgage payments. Carter admitted he had the financial means to make monthly mortgage payments, but not to pay off the entire mortgage debt. The property was sold for $20,000 at a Sheriff's auction in April, 1995. Count one of Carter's complaint alleged that the defendant- appellees failed to assume responsibility for housing code violations, as required by the June 24, 1993 agreement. Count two asserted that appellees failed to consummate the purchase of the building. Count three alleged that appellees removed appellant from the board of trustees of BADC in retaliation for appellant contacting a lawyer concerning the sale of the property. I. Appellant's first and second assignment of error are interrelated and will be discussed together. They state: THE TRIAL COURT ERRED IN HOLDING THAT THE PURCHASE AGREE- MENT WAS NOT A CONTRACT. THE TRIAL COURT ERRED IN NOT HOLDING THAT APPELLEES BREACHED THE PURCHASE AGREEMENT BY FAILING TO ASSUME -6- RESPONSIBILITY FOR VIOLATIONS AND BY FAILING TO TENDER PAYMENTS. In an action tried without a jury, upon motion, the trial court may dismiss the case after the plaintiff's presentation of evidence, if the plaintiff has shown no right to relief. Civ. R. 41(B)(2). Unlike a motion for directed verdict, the trial court may weigh the evidence. Bank One Dayton, N.A. v. Doughman (1988), 59 Ohio App.3d 60, Levine v. Beckman (1988), 48 Ohio App.3d 24. The dismissal will be set aside only if erroneous as a matter of law or against the manifest weight of the evidence. Id. The trial court stated that it granted appellees' motion for a dismissal on the grounds that the contract was subject to the approval of the board of directors, such approval was not obtained and therefore, no contract existed. Even if both parties signed a purchase agreement, if a condition precedent was not fulfilled, then no contract to sell existed. See Mumaw v. Insurance Co. (1917), 97 Ohio St. 1, Bilang v. Benson (1978), 62 Ohio App.2d 134, Riggs v. The Standard Slag Co. (Nov. 10, 1993), Summit App. No. 16199, unreported. Parol evidence is admissible to establish a condition precedent was orally agreed upon, although the condition precedent was not included in the contract language. Riggs, supra, Frankel Chevrolet Co. v. Snyder (1930), 37 Ohio App. 378. The parol evidence establishing a condition precedent does not contradict the terms of the document, but establishes a separate agreement that the document would only go into effect if certain contingencies occurred. Id. -7- Parol evidence is not admissible to establish a condition subsequent. A condition subsequent occurs when a contract was formed, but the parties agree that if certain contingencies occur, the contract will no longer be in effect. See Retterer v. Bender (1958), 106 Ohio App. 369. In this case, there was no evidence the parties agreed that board approval or an appraisal would be a condition precedent. Appellees asserted that board approval was a condition precedent, and as a member of the board, Carter was aware of this condition precedent. No one testified that as a board member, Carter should have been aware of this condition precedent. The board minutes indicated that Carter was present at the board meeting, but did not participate in the discussion concerning the property. While Carter may have been present at the meeting, it is unknown whether Carter was present when the Laudis building and/or the appraisal condition was discussed. The evidence did not show whether Carter was actually aware of the appraisal condition. Thus, the evidence did not show that the parties agreed that the purchase agreement would be subject to the condition precedent of an appraisal. Moreover, the testimony of Carter, Sipos and Bailey all indicated that the board did authorize Sipos to go forward with the project. The appraisal was a condition subsequent, rather than a condition precedent. As discussed above, parol evidence is not admissible to establish a condition subsequent. -8- In summary, there was insufficient evidence to support the trial court's determination that the parties agreed to a condition precedent, and therefore no contract existed. Appellees argue that even if the purchase agreement was a binding contract, appellant was not entitled to specific performance. If a contract is comprised of mutual dependent promises, such as contained in the purchase agreement here, then a party is not in default until the other party tenders performance. Young v. Brookshire (1995), 101 Ohio App.3d 458. Tender of performance is not required, however, when the other party clearly can not or will not perform. Ritchie v. Cordray (1983), 10 Ohio App.3d 213. Even if tender of performance is not required, to obtain specific performance, a party must show he was ready and able to perform. George Wiedemann Brewing Co. v. Maxwell (1908), 78 Ohio St. 54, Hunting Valley Builders, Inc. v. Womens' Fed. Savings Bank (Aug. 23, 1990), Cuyahoga App. No. 57438, unreported. In the present case, appellant would have been able to file the quitclaim deed quitclaiming his wife's interest within thirty days notice. Appellant was unable to pay off the mortgages himself, and the purchase agreement did not make any provisions for payment of the mortgages from the escrow funds. Such a provision could be implied, however. The purchase price would have covered the mortgage debts. Appellant was not entitled to specific performance because he subsequently sold the property, and was unable to render specific performance. Appellee asserts that appellant failed to present -9- evidence as to the amount of monetary damages. In a contract action, even if a party fails to prove the amount of damages arising from the breach of contract, the party is entitled to nominal damages. Allen, Heaton & McDonald, Inc. v. Castle Farm Amusement (1949), 151 Ohio St. 522, 528, Toledo Group v. Benton Indus. (1993), 87 Ohio App.3d 798, 807. Failure to present evidence of monetary damages would not justify a dismissal in this case. Accordingly, these assignments of error are sustained. II. Appellant's third assignment of error states: THE TRIAL COURT ERRED IN MAKING INCONSISTENT RULINGS REGARDING PAROL EVIDENCE. In a bench trial, the court is presumed to have considered only relevant, material and competent evidence in arriving at its judgment, unless it affirmatively appears to the contrary. State v. Post (1987), 32 Ohio St.3d 380, 384. In this case, the trial court clearly based its decision on the parole evidence that a condition precedent existed. As discussed above, the evidence did not establish that a condition precedent existed, so the parole evidence was not admissible. The trial court erred in considering this evidence. Appellant asserts that the trial court should have allowed testimony of BADC's attorney, Mr. Douglass, who drafted the June 24, 1993 document. Appellant's attorney wished to ask Mr. Douglass whether the June 24 agreement had consideration and why the -10- conditions of board approval and appraisal were not written into the purchase agreement. The trial court properly upheld Mr. Douglass's refusal to testify as to privileged matters. R.C. 2317.02(A). There was no evidence that appellees authorized Douglass to make public or share with appellant any information concerning the purchase agreement. Cf. Hagwood v. Hagwood (1973), 33 Ohio Misc. 227. Whether the contract was supported by consideration was a question of law for the court. Appellant asserts that the trial court erred in disallowing Carter's testimony concerning whether the purchase agreement required appellees to assume responsibility for housing code viola- tions. Parol evidence is inadmissable to vary the unambiguous terms contained in a written contract. AmeriTrust Co. v. Murray (1984), 20 Ohio App.3d 333. The trial court did not err in excluding the privileged testimony of Attorney Douglass or excluding evidence purporting to interpret the unambiguous contract language. The trial court erred in considering the parole evidence of the alleged condition precedent. Accordingly, this assignment of error is sustained. III. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED BY CONFUSING THE SEVERAL ALLEGA- TIONS IN THE COMPLAINT AND THEN RULING THAT THERE WAS NO EVIDENCE TO SUPPORT THE ALLEGATIONS. -11- Appellant admits that there was not evidence to support the third count of his complaint. Appellant may be entitled to damages on the first and second counts of the complaint. Accordingly,this assignment of error is sustained. The decision of the trial court is reversed and remanded for further proceedings. -12- It is ordered that appellant recover of appellee its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. CORRIGAN, J., CONCURS. MCMONAGLE, J., CONCURS IN JUDGMENT ONLY ANN DYKE PRESIDING 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 .