COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74387 ROBERT O. GARNETT : ACCELERATED CASE : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION JUDITH L. KRAMER, ET AL. : : Defendants-Appellees : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 1, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CV-332259 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: ROBERT O. GARNETT (#0024990) 3645 Warrensville Center Road, #127 Shaker Heights, Ohio 44122 For Defendants-Appellees: LAWRENCE TUCKER (#0014071) Tucker & Cohen 407 Leader Building Cleveland, Ohio 44114 PER CURIAM: Plaintiff-appellant Robert Garnett ( appellant ) appeals from the trial court's order denying appellant's motion for summary judgment on defendant-appellee Judith Kramer's counterclaim for -2- eviction and back rent. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT'S MOTION FOR SUMMARY JUDGMENT. II. APPELLEE WAIVED THE STATUTORY NOTICE GIVEN BY HER AGENT, BY ACCEPTING FUTURE RENT. Finding appellant's first assignment of error to lack merit and his second assignment of error to be defective under App.R. 12(A)(2), the judgment of the trial court is affirmed. I. On November 15, 1984, appellant commenced an oral month-to- month tenancy whereby he became the commercial tenant of Suite 306 of the Center Farnsleigh Building, which is located at 20475 Farnsleigh Road, Shaker Heights, Ohio. On January 9, 1997, defendant-appellee Judith Kramer purchased the Center Farnsleigh Building from Center-Golfview Company. Judith Kramer orally appointed her children, defendants-appellees Roger Kramer and Sally Roseman, to act as her agents in the management of the Center Farnsleigh Building. Shortly after obtaining title to the Center Farnsleigh Building, Judith Kramer and her children decided to convert Suite 306 into storage space. In a letter dated February 26, 1997, Roger Kramer provided appellant with thirty days notice that appellant's month-to-month tenancy would not be renewed. On April 1, 1997, appellees hand-delivered to appellant a notice to vacate Suite 306 within three days. Appellant did not vacate Suite 306; instead, on March 27, -3- 1997, appellant filed the underlying lawsuit against several defendants,including Judith Kramer, Roger Kramer, and Sally Roseman ( appellees ). On August 20, 1997, after obtaining leave from the trial court, appellant filed an amended complaint. Appellant's amended complaint raised four causes of action: (1) nuisance and willful interference with covenant of quiet use and enjoyment; (2) willful interference with business relations; (3) negligent or intentional infliction of emotion distress; and (4) declaratory relief. On September 18, 1997, Judith Kramer filed her answer to appellant's amended complaint and a counterclaim against appellant. In her counterclaim, Judith Kramer sought the judicial eviction of appellant and back rent.1 On November 28, 1997, appellant filed a motion for summary judgment on Judith Kramer's counterclaim. On December 1, 1997, appellees filed four separate motions for summary judgment, one for each cause of action in appellant's amended complaint. On March 25, 1998, the trial court denied appellant's motion for summary judgment. On the same date, the trial court denied appellees' motions for summary judgment on appellant's first and second cause of action; however, the trial court granted summary judgment in favor of appellees on appellant's third and fourth claims. On March 26, 1998, appellant voluntarily dismissed his remaining claims against appellees. Judith Kramer's counterclaim 1 We note that although appellant remained in possession of Suite 306, he did not pay rent after April 1, 1997. -4- against appellant remained pending and proceeded to trial. On March 27, 1998, the trial court granted Judith Kramer a directed verdict on her counterclaim against appellant. The trial court awarded Judith Kramer Four Thousand Ninety-Two Dollars ($4,092.00) for back rent due. In addition, the trial court declared that Judith Kramer was entitled to immediate possession of Suite 306 and ordered that appellant leave those premises forthwith. II. In his first assignment of error, appellant contends that the trial court erred in denying appellant's motion for summary judgment on Judith Kramer's counterclaim. Under Civ.R. 56, summary judgment is only appropriate 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) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. See Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 359. -5- Appellant contends that he was entitled to judgment as a matter of law because the three-day notice to vacate Suite 306, which was served upon appellant pursuant to R.C. 1923.04(A), did not conform to the Statute of Frauds. Appellant argues that the statutory notice, which was signed by Roger Kramer and hand- delivered to appellant on April 1, 1997, was invalid because Roger Kramer was not lawfully authorized in writing to act as Judith Kramer's agent in this regard. R.C. 1335.04, which is Ohio's Statute of Frauds, provides: No lease, estate, or interest, either of freehold or term of years, or any uncertain interest of, in, or out of lands, tenements, or hereditaments, shall be assigned or granted except by deed, or note in writing, signed by the party assigning or granting it, or his agent thereunto lawfully authorized, by writing or by act and operation of law. (Emphasis added.) The Statute of Frauds only applies to the assignment or grant of an interest in land. The Statute of Frauds does not apply to the notice mandated by R.C. 1923.042, which is merely a procedural requirement and does not create, assign, grant, or even effectively 2 R.C. 1923.04(A) provides, in pertinent part: Except as provided in division (B) of this section, a party desiring to commence an action under this chapter shall notify the adverse party to leave the premises, for the possession of which the action is about to be brought, three or more days before beginning the action, by certified mail, return receipt requested, or by handing a written copy of the notice to the defendant in person, or by leaving it at his usual place of abode or at the premises from which the defendant is sought to be evicted. -6- terminate an interest in land. Contrary to appellant's argument, there is nothing in R.C. 1335.04, R.C. 1923.04, or the respective case law which requires that the three-day statutory notice under R.C. 1923.04 must be signed by the landlord or an agent with written authority or power of attorney. Appellant also argues that he was entitled to summary judgment as a matter of law because Roger Kramer did not have formal power of attorney to act as Judith Kramer's agent when he served appellant with the three-day notice to vacate Suite 306. Appellant contends that, pursuant to R.C. 1337.01 and R.C. 1337.04, any agency that deals with real estate must be executed with the same solemnities as a deed. R.C. 1337.01 provides: A power of attorney for the conveyance, mortgage, or lease of any interest in real property must be signed, attested, acknowledged, and certified as provided in section 5301.01 of the Revised Code. (Emphasis added.) R.C. 1337.04 states: A power of attorney for the conveyance, mortgage, or lease of an interest in real property must be recorded in the office of the county recorder of the county in which such property is situated, previous to the recording of a deed, mortgage, or lease by virtue of such power of attorney. (Emphasis added.) Under R.C. 1337.01 and R.C. 1337.04, in order to have the authority to convey, mortgage or lease a principal's interest in -7- real property, an agent must obtain a signed, attested, acknowledged,certified, and recorded power of attorney. However, an agent does not need such power of attorney to deliver the three- day notice required by R.C. 1923.04, which, as stated above, is procedural and does not directly affect interest in real property. Therefore, the trial court did not err in denying appellant's motion for summary judgment on Judith Kramer's counterclaim. Accordingly, appellant's first assignment of error is without merit and is overruled. II. Appellant's second assignment of error reads, verbatim: Appellee waived the statutory notice given by her agent, by accepting future rent. This assignment of error, and the corresponding argument, fails to identify the error upon which it is based. App.R. 12(A)(2) states: The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based * * *. We are unable to determine, and appellant does not identify, the substance of the alleged error or the specific grounds for review. Therefore, pursuant to App.R. 12(A)(2), this court exercises its option to disregard appellant's second assignment of error. Judgment affirmed. -8- It is ordered that appellees recover of appellant their 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. JAMES M. PORTER, PRESIDING JUDGE LEO M. SPELLACY, JUDGE KENNETH A. ROCCO, JUDGE N.B. This 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(B) 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 .