COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74434 KISS REALTY COMPANY : : ACCELERATED DOCKET PLAINTIFF-APPELLEE : : JOURNAL ENTRY vs. : : AND CRAIG LATSA : : OPINION DEFENDANT-APPELLANT : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 17, 1998 CHARACTER OF PROCEEDING: Civil appeal from Lakewood Municipal Court, Case No. 98 CVI 224. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiff-appellee: George Joseph, Esq. 12211 Madison Avenue Lakewood, Ohio 44107 For Defendant-appellant: Craig Latsa, pro se 4024 West 229th Street Fairview Park, Ohio 44126 -2- PER CURIAM: Plaintiff-appellee Kiss Realty Company filed an action in Lakewood Municipal Court seeking its commission from defendant- appellant Craig Latsa for the sale of a home. The case was heard before a magistrate, who issued findings of fact and conclusions of law. No objections were filed, and the trial court granted judgment for the appellee in the sum of $2,400, plus interest and costs. The appellant herein failed to file objections to the magistrate's decision and therefore may not assign as error on appeal the trial court's adoption of that decision. Harbeitner v. Harbeitner (1994), 94 Ohio App.3d 485. This principle is explicitly set forth in Civ.R. 53(E)(3)(b), which states: Objections shall be specific and state with particularity the grounds of objections. If the parties stipulate in writing that the magistrate's findings of fact shall be final, they may object only to errors of law in the magistrate's decision. Any objection to a finding of fact shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that fact or an affidavit of that evidence if a transcript is not available. A party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule. (Emphasis added.) See, also, Deegan v. Deegan (Jan. 29, 1998), Cuyahoga App. No. 72246, unreported; Schwartz v. Osiatynski (Dec. 18, 1997), Cuyahoga App. No.71968, unreported; Coleman v. Commercial Roofing (Oct. 30, 1997), Cuyahoga App. No.72564, unreported; Reech v. Reech (Jan. 3, 1997), Cuyahoga App. No.70241, unreported. The appellant's assignment of error is overruled. -3- Judgment affirmed. It is ordered that appellee recover of appellant 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 Lakewood Municipal 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. ______________________________ TIMOTHY E. McMONAGLE, J. ______________________________ JAMES D. SWEENEY, J. TERRENCE O'DONNELL, P.J., DISSENTS, WITH DISSENTING OPINION ATTACHED. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74434 -5- KISS REALTY : : Plaintiff-Appellee : DISSENTING : vs. : OPINION : CRAIG LATSA : : Defendant-Appellant : DATE: DECEMBER 17, 1998 JUDGE TERRENCE O'DONNELL DISSENTING: Although appellant did not specifically object to the magistrate's findings in the trial court, he clearly evidenced his objection to paying a $2400 real estate commission to the realtor after he sold his home himself two days before the listing expired; as I read the substantive law of contracts, in this specific case based on this contract and these facts, appellant is correct and should not be obligated to pay the real estate commission. Accordingly, I dissent. Craig Latsa, pro se, has appealed from a decision of the Lakewood Municipal Court which adopted the magistrate's findings of fact and conclusions of law and entered a $2400 judgment in favor of the Kiss Realty Company on its claim for payment of a real estate commission in connection with the sale of Latsa's residence pursuant to an exclusive listing agreement. For the reasons which follow, I believe we should reverse the decision of the municipal court and enter final judgment for Latsa on this claim. The evidence presented before the magistrate indicated that on March 13, 1997, Latsa signed a five-month exclusive right to sell agreement authorizing the Kiss Realty Company to sell his residence -2- on Cordova Avenue in Lakewood, Ohio. That listing expired on August 14, 1997. Latsa claimed in his brief that he orally gave specific showing instructions to the realty company demanding that a Kiss Realty representative be present during all showings, which he wanted reduced to writing, but the Kiss Realty Company never incorporated those terms into the written contract. Because he was anxious to sell, however, Latsa began to advertise the property himself, and on August 12, 1997, just two days before the listing agreement expired, he sold the home himself without assistance from the Kiss Realty Company. Upon learning of the sale, the Kiss Realty Company filed suit in the Lakewood Municipal Court to collect its commission. Following a hearing, the magistrate recommended a $2400 commission be paid to the Kiss Realty Company, and issued findings of fact and conclusions of law in support of its decision, which the court subsequently adopted. Latsa now appeals from the court's decision, contending the court entered judgment in favor of the Kiss Realty Company in violation of the statute of frauds, because the Kiss Realty Company negligently failed to reduce his showing instructions to writing. Although Latsa, who appears pro se, did not file objections to the magistrate's decision, the Kiss Realty Company did not timely file a brief in our court raising that issue and thus, I would assert it has been waived. The issue before us here concerns whether Latsa is obligated to pay a commission to the Kiss Realty Company when he sold his own home by himself. -3- Initially, the statute of frauds requires contracts for the sale of real estate to be in writing. R.C. 1335.05 states in part: No action shall be brought * * * upon a contract or sale of lands * * * or interest in or concerning them * * * unless the agreement upon which such action is brought * * * is in writing and signed by the party to be charged therewith. However, the fact that Latsa's showing instructions are not part of the written listing agreement in this case is not sufficient to render the contract void under the statute of frauds, because the parties entered an otherwise valid agreement. In Bell v. Dimmerling (1948), 49 Ohio St. 165, the Ohio Supreme Court considered a case similar to this one in which an owner claimed no obligation to pay a real estate commission because that owner had sold his property without the assistance of the real estate agent. The court in Bell quoted the language of that real estate agreement in its opinion, as follows: If you are successful in finding a purchaser for my property, or if the same is sold or exchanged during the term of your exclusive agency, or is sold within three months after the period of this agency to anyone with whom you have negotiated with respect to a sale during the period of this agency and of whom I have notice, I agree to pay a commission of 5% upon the price at which same may be sold or exchanged. The court in Bell stated in its syllabus: A written instrument, signed by the owner of real estate and accepted by a licensed real estate agent, which provides in substance that in consideration of the agreement of the agent to use his efforts to find a purchaser for such real estate he shall have the exclusive right for a specified time to sell the same and if the same is sold during such time the owner will pay a stated commission, becomes a contract binding on the owner when the agent does in fact use his efforts to find a purchaser, and if the owner sells the property during the time specified, he is liable to the agent for the payment of the stated commission. -4- Not surprisingly, the language in the listing agreement relating to the payment of commission in this case is similar to that used in Bell v. Dimmerling, supra; however, the negotiated commission rates, which the Kiss Realty Company hand wrote into the contract are italicized in the following language taken from the printed contract signed by Latsa: If you are successful in finding a purchaser for my/our property of [sic] the same is sold during the term of your exclusive agency, or is sold within three months after the period of this agency to anyone with whom you or your co-workers may have negotiated with respect to a sale during the period of this agency and of whom I have notice, I agree to pay you a commission of 3% if Kiss Realty sells prop. on a split 3 1/2% to each company total 7% upon the price at which same may be sold or exchanged. Thus this contract calls for payment of a real estate commission to the Kiss Realty Company upon the occurrence of two events, the terms of which are specified: 3% if Kiss Realty sells prop. on a split 3 1/2% to each company total 7%. Nowhere, however, did the Kiss Realty Company provide for its commission or a percentage to be paid if the owner sold the property himself. Since this contract provides for only two situations under which a commission is to be paid, but makes no provision for payment of a commission or a percentage upon sale of the property by the owner, it is ambiguous as to that circumstance, and that is the manner by which sale occurred in this case. Thus, the contract language here, while similar to that in Bell v. Dimmerling, supra, is not exactly the same and therefore, that case holding does not control the outcome of this case. Rather, the -5- ambiguity in this contract should be resolved against the drafter, the Kiss Realty Company. This conclusion is in accord with the holding in Central Realty Co. v. Clutter (1980), 62 Ohio St.2d 411, where the court considered a contract for the sale of real estate in which a realtor provided for a rate of commission if an owner sold the property, but not if another broker sold the property. The court there stated at 413: The ambiguity and doubt is to be resolved against the plaintiff. If the [realtor] wished to protect itself from the possibility of a sale by another broker, it could have explicitly provided for such an event. Without specific reference to such a possibility, the clause is ambiguous. The age-old maxim of ambiguitas contra stipulatorem est (an ambiguity is resolved against the stipulator) applies to the instant cause. Similarly, in this case, then, if the Kiss Realty Company wished to provide for a commission on the basis of Latsa's own sale of his home, it could have done so, but it did not. Since the contract ambiguity here must be resolved against the party who drafted the contract, the Kiss Realty Company cannot prevail in this case. Accordingly, I would vacate the judgment of the .