[Cite as Johnson v. Miller, 2018-Ohio-3739.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           MADISON COUNTY




 GORDON E. JOHNSON, TRUSTEE OF                    :     CASE NO. CA2017-12-021
 THE JOHNSON FAMILY TRUST, et al.,
                                                  :            OPINION
         Plaintiffs-Appellees,                                  9/17/2018
                                                  :

   - vs -                                         :

                                                  :
 EMERY J. MILLER, INDIVIDUALLY AND
 AS TRUSTEE,                                      :

         Defendant-Appellant.                     :



         CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                            Case No. CVE20130262



James R. Cooper, 33 West Main Street, P.O. Box 4190, Newark, OH 43058-4190, for
plaintiffs-appellees

Emery J. Miller, 489 West Main St, Lot 19, Plain City, OH 43064, defendant-appellant, pro
se



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Emery J. Miller, appeals from the decision of the

Madison County Court of Common Pleas, which rendered judgment in favor of plaintiffs-

appellees, Gordon and Karen Johnson, Trustees of the Johnson Family Trust (collectively,

"the Johnsons") on the Johnsons' complaint on a promissory note and to foreclose
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mortgages. For the reasons described below, this court affirms the lower court's decision.

      {¶ 2} In 2007, Miller, a real estate broker and appraiser, learned of a farm for sale

in Madison County known locally as the "Oiler Farm." Miller attempted to purchase the Oiler

Farm but for reasons not in the record, the transaction never occurred.

      {¶ 3} Miller was acquainted with Attorney Todd Drown; the two worked together on

real estate transactions. In the summer of 2007, Miller began working with Drown on a plan

for Drown to purchase and develop the Oiler Farm property.

      {¶ 4} Drown arranged for financing to purchase the property. A bank loaned Drown

$110,000 towards the purchase. Drown provided the bank with a promissory note and first

mortgage on the property. To finance the remainder of the purchase price, Drown obtained

a loan for $95,000 from the Johnsons. Drown's father, Bill Drown, arranged this loan. Bill

had previously worked with the Johnsons on similar transactions involving loans for real

estate development.

      {¶ 5} Drown prepared the various legal documents that were executed by the

parties at the closing. Drown and Miller both executed a $95,000 promissory note in favor

of the Johnsons. The note was secured with a second mortgage on the Oiler Farm. Miller

provided additional security for the note by executing mortgages in favor of the Johnsons

on two separate Madison County parcels he owned. Drown thereafter acquired the Oiler

Farm. Miller earned a commission for brokering the deal.

      {¶ 6} Drown later filed for bankruptcy and no development occurred at the property.

The bank holding the first mortgage on Oiler Farm initiated foreclosure proceedings, which

resulted in a sale of the property. The Johnsons, holders of the second mortgage, received

$12,000 in proceeds from the foreclosure sale.

      {¶ 7} Meanwhile, the Johnsons received no payments on the note. The Johnsons

delivered a demand letter to Miller. Miller failed to cure. The Johnsons filed suit in 2013.

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Miller represented himself throughout the litigation. In 2017, after numerous continuances,

a bench trial occurred.

      {¶ 8} The Johnsons submitted into evidence the signed promissory note and

mortgage documents at issue in the case.        Miller did not dispute that he signed the

documents and admitted that he had not made any payments on the note. However, Miller

claimed that he executed the documents under duress while at the closing. Specifically,

Miller claimed that Drown told him at the closing that "Dad (meaning Bill Drown) said you

have to."

      {¶ 9} Karen Johnson testified that she was at the closing. She did not see Drown

at the closing, who had already signed the closing documents. Miller was at the closing

and showed her binders that depicted development plans for the Oiler Farm, which

impressed her. Miller willingly signed all the real estate documents at the closing.

      {¶ 10} The court found that the Johnsons were entitled to judgment on the

promissory note and further ordered that the mortgages on Miller's properties be foreclosed.

Miller appeals, raising two assignments of error.

      {¶ 11} Assignment of Error No. 1:

      {¶ 12} THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN HOLDING

THAT THE ALLEGED PROMISSORY NOTE WHICH DEFENDANT WAS FORCED TO

SIGN, AS WELL ALSO AS THE ALLEGED STATUTORY MORTGAGE DEFENDANT WAS

COERCED TO SIGN ON AUGUST 30, 2007, WERE AND ARE VALID, BINDING AND

SUBSISTING CONTRACTS, ENFORCEABLE UNDER OHIO LAW.

      {¶ 13} Miller argues that the court erred in finding that the parties entered into

enforceable agreements with respect to the promissory note and mortgages because there

was insufficient evidence of a meeting of the minds and the agreements were not supported

by consideration. The issue of whether a contract exists presents a mixed question of fact

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and law. DeHoff v. Veterinary Hosp. Operations of Cent. Ohio, Inc., 10th Dist. Franklin No.

02AP-454, 2003-Ohio-3334, ¶ 48-49; Rudd v. Online Resources, Inc., 2d Dist. Montgomery

No. 17500, 1999 Ohio App. LEXIS 2733, *9-10 (June 18, 1999); McSweeney v. Jackson,

117 Ohio App.3d 623, 632 (4th Dist.1996). This court reviews the application of the law to

the facts de novo. McSweeney at id. However, the appellate court defers to the factual

findings of the trial court if supported by some competent, credible evidence. Id.

      {¶ 14} The "'[e]ssential elements of a contract include an offer, acceptance,

contractual capacity, consideration (the bargained for legal benefit and/or detriment), a

manifestation of mutual assent and legality of object and of consideration.'" Kostelnik v.

Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶16, quoting Perlmuter Printing Co. v. Strome,

Inc., 436 F.Supp. 409, 414 (N.D.Ohio 1976). To declare the existence of a contract, the

parties must consent to the contractual terms, there must be a meeting of the minds, and

the contract must be definite and certain. Episcopal Retirement Homes, Inc. v. Ohio Dept.

of Indus. Relations, 61 Ohio St.3d 366, 369 (1991).

      {¶ 15} Mutual assent is normally manifested by an offer by one party followed by an

acceptance by the other party. Ohmer v. Mel Farr Ford, 12th Dist. Butler No. CA2000-12-

252, 2001 Ohio App. LEXIS 3551, *6 (Aug. 13, 2001), citing McSweeney at 631;

Restatement of the Law 2d, Contracts, Section 22 (1981). Whether there has been a

manifestation of mutual assent or a meeting of the minds is a question of fact to be

determined from all the relevant facts and circumstances. Costner Consulting Co. v. U.S.

Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 15 (10th Dist.). The "manifestation of

assent may be made wholly or partly by written or spoken words, or by other acts or the

failure to act." Precision Concepts Corp. v. Gen. Emp. & Triad Personnel Servs., Inc., 10th

Dist. Franklin No. 00AP-43, 2000 Ohio App. LEXIS 3322 (July 25, 2000).

      {¶ 16} Competent and credible evidence established mutual assent.              The court

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accepted into evidence the executed promissory note and mortgage documents, all which

Miller admitted to signing. Karen Johnson testified that Miller appeared at the closing and

willingly signed all the documents. Through the documents, the parties' appearance at the

closing, and the signatures executing the documents, the parties demonstrated mutual

assent for the Johnsons to loan $95,000 to permit Drown to purchase the Oiler Farm, and

for Drown and Miller to provide the Johnsons with collateral to secure a promissory note in

the form of mortgages on the Oiler Farm and Miller's separate property. That the Johnsons

and Miller never personally discussed the terms of the agreement before arriving at the

closing is irrelevant to the issue of whether the parties understood and agreed to the terms

of the transaction while at the closing.

       {¶ 17} Competent, credible evidence also established sufficient consideration for the

agreements. The court found that Miller made efforts to obtain the Oiler Farm himself but

was unsuccessful. Miller had a business relationship with Drown and was significantly

involved in assisting Drown in obtaining the property. Miller made plans for developing the

property. Karen Johnson testified that Miller appeared at the closing and showed her

detailed materials concerning the development of the property. Miller told Johnson of a

plan to improve the property with a road and subdivide the land into building sites after the

road was constructed.     Miller obtained a commission for brokering the deal and was

positioned to earn additional commissions upon brokering sales of the developed property.

This evidence was more than sufficient to establish consideration.

       {¶ 18} Miller's assignment of error raises the issue of alleged duress or coercion in

signing the agreements although he does not expand upon the issue in his brief. The trial

court found that Miller's claim of duress failed for several reasons, including that the

statement "Dad says you have to" did not establish duress because Miller was free to walk

away from the closing without executing the documents. The court also found that Miller

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failed to allege coercive acts by the opposite party to the transactions, i.e., the Johnsons.

Competent, credible evidence supported the court's factual findings concerning the lack of

duress and Miller's lack of credibility on the subject. This court overrules Miller's first

assignment of error.

      {¶ 19} Assignment of Error No. 2:

      {¶ 20} THE TRIAL COURT [ERRED] IN FINDING THAT WILLIAM TODD DROWN,

AN OHIO ATTORNEY, A MAKER ON THE PROMISSORY NOTE, WAS THE SUBJECT

OF A BANKRUPTCY PROCEEDING. AT NO TIME WAS ANY EVIDENCE PUT BEFORE

THIS COURT THAT WILLIAM TODD DROWN WAS THE SUBJECT OF A BANKRUPTCY

PROCEEDING AT THE TIME HE VOLUNTARILY SIGNED THE PROMISSORY NOTE

AND RECEIVED $95,000 FROM PLAINTIFFS. AT FIRST GLANCE THIS ERROR MAY

APPEAR TO BE HARMLESS ERROR, BUT CONSIDERING THE FACT THAT THE

JUDGMENT ENTRY WAS DRAFTED BY COUNSEL FOR PLAINTIFFS, THE ERROR IS

CARELESS AND SLOPPY.

      {¶ 21} Miller's brief contains no argument concerning this assignment of error.

Regardless, bankruptcy proceedings involving Drown have no relevance to the issues

before the court on the Johnsons' complaint.         This court overrules Miller's second

assignment of error.

      {¶ 22} Judgment affirmed.


      RINGLAND, P.J., and PIPER, J., concur.




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