[Cite as Solomon v. Harwood, 2011-Ohio-5268.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 96256

 ALEX A. SOLOMON, TRUSTEE

PLAINTIFF-APPELLANT 

CROSS-APPELLEE 

vs. 

 DALE HARWOOD, ET AL.

DEFENDANTS-APPELLEES 

and 

RESOURCE TITLE AGENCY, INC.

DEFENDANT-APPELLEE 

CROSS-APPELLANT 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CV-644729 and CV-664133 

BEFORE: Jones, J., Blackmon, P.J., and Celebrezze, J. 
RELEASED AND JOURNALIZED: October 13, 2011 

ATTORNEY FOR APPELLANT 

Harold Pollock 

Harold Pollock Co., L.P.A. 

5900 Harper Road, Suite 107 

Solon, Ohio 44139 

ATTORNEYS FOR APPELLEES 

For Dale Harwood, et al. 

Ronald A. Rispo 

Shawn W. Maestle 

Weston Hurd, L.L.P. 

The Tower at Erieview 

1301 East 9th Street, Suite 1900 

Cleveland, Ohio 44114

For David J. Horvath 

Nicholas D. Satullo 

Reminger Co., L.P.A. 

1400 Midland Building 

101 Prospect Avenue, West 

Cleveland, Ohio 44115

For Remah Mustafa 

Russell S. Bensing 

1350 Standard Building 

1370 Ontario Street 

Cleveland, Ohio 44113

For RBS Citizens 

Gregory P. Amend 

Kohrman Jackson & Krantz, P.L.L. 

1375 East Ninth Street 

One Cleveland Center, 20th Floor 
Cleveland, Ohio 44114 

Attorneys continued 

For RBS Citizens, N.A.

Kathleen A. Nitschke 

Ari H. Jaffe 

Giffen & Kaminski, L.L.C. 

1300 East Ninth Street 

Suite1600 

Cleveland, Ohio 44114 

For Resource Title Agency Inc. 

David M. Cuppage 

Climaco, Wilcox, Peca, Tarantino, Garofoli 

55 Public Square 

Suite 1950 

Cleveland, Ohio 44113 

 

LARRY A. JONES, J.: 

{¶ 1} Plaintiff-appellant, Alex Solomon, Trustee, appeals the trial court’s 

judgment in favor of defendants-appellees, Dale Harwood, Mukhless and Remah 

Mustafa, RBS Citizens N.A., David Horvath, and defendant-appellee cross- appellant, 

Resource Title Agency. For the reasons that follow, we affirm. 

Procedural History and Facts

{¶ 2} The facts and procedural history of this case are lengthy and convoluted.1 

 1

Since a single succinct statement of all the material facts is difficult given the number of 

parties and claims involved, we will discuss many of the facts pertinent to each party with our 

analysis of the legal issues. 
What is undisputed is that in 2003, real estate investor Dale Harwood purchased real 

property located at 1359 Adelaide Street in Westlake for $1.1 million. In August 

2005, Harwood contracted with Solomon to sell the property for only $595,000. In 

October 2005, Harwood allowed Solomon to take possession of the home prior to the 

sale, and the parties executed a written agreement by which Solomon was to pay $1,800 

per month in rent until the sale of the house could go through. The sale did not occur, 

however, because Harwood could not convey title free and clear. Solomon alleges he 

began to make improvements to the property shortly after moving in. 

{¶ 3} In October 2006, Washington Mutual Bank, the holder of the first mortgage 

on the property, began foreclosure proceedings. Solomon stopped paying rent in July 

2007. In September 2007, Solomon and Harwood entered into a second contract, 

whereby Solomon would buy the house for $575,000 through a “short sale” process that 

would be approved by Washington Mutual. The bank approved a short sale that 

contemplated a closing on or before November 3, 2007. Solomon, who at one time 

had enough cash to pay for the house outright, was now in need of a mortgage to 

finance the house. At this time, Harwood retained attorney David Horvath to represent 

his interests. 

{¶ 4} Solomon was unable to obtain the necessary financing, so he and Harwood 

entered into another agreement, this time extending the contract 30 days, until 

November 30, to obtain financing for a new purchase price of $525,000. On 

December 6, Harwood offered to extend the financing time limit an additional 14 days 

if Solomon met certain conditions. On December 13, Horvath faxed a letter to 
Solomon’s attorney, David Lynch, withdrawing the offer to sell. 

{¶ 5} On December 14, 2007, Solomon filed a mechanic’s lien against the 

property in the amount of $107,000. On December 17, he filed suit against the 

appellees, asserting various claims. He then filed two amended complaints. 

Solomon’s second amended complaint asserted the following claims against Harwood: 

specific performance (Count I), breach of contract (Count II), declaratory relief (Count 

III), promissory estoppel (Count IV), fraud and misrepresentation (Count V), and 

intentional and/or reckless infliction of emotional distress (Count XII). The complaint 

asserted the following claims against Harwood’s attorney, David Horvath: promissory 

estoppel (Count IV), fraud and misrepresentation (Count V), intentional and/or reckless 

infliction of emotional distress (Count XII), and legal malpractice (Count XIV). 

{¶ 6} The complaint asserted the following claims against the parties who 

eventually purchased the property, Mukhless and Remah Mustafa: declaratory relief 

(Count VI), tortious interference (Count VII), intentional and/or reckless infliction of 

emotional distress (Count XII). The complaint requested declaratory relief from the 

Mustafas’s mortgage holder, RBS Citizens (Count VI), and asserted the following 

claims against the title agency, Resource Title: breach of contract (Count IX), 

negligence (Count X), and breach of fiduciary duty (Count XI). 

{¶ 7} Solomon also set forth a claim titled “occupying claimant law” (Count 

XIII) asking for the fair market value of all improvements, although Solomon did not 

name a party to this count. Solomon further asked for a preliminary and permanent 

injunction against all the defendants. 
{¶ 8} Each of the appellees answered the amended complaint. Resource Title, 

the Mustafas, and Harwood filed counterclaims against Solomon. A long and arduous 

discovery process began. The appellees individually moved for summary judgment, 

which the court granted, without opinion. The trial court also discharged the 

mechanic’s lien Solomon had filed against the property and ordered him evicted from 

the property. The court subsequently granted the Mustafas’s counterclaim for eviction 

and Harwood’s counterclaim for breach of contract (failure to pay rent). 

{¶ 9} Harwood, the Mustafas, and Resource Title individually moved for 

summary judgment on the issue of damages. The trial court subsequently awarded 

Harwood compensatory damages of $97,829.88, punitive damages in the amount of 

$75,000, and attorney fees in the amount of $56,188.98; awarded damages to the 

Mustafas in the amount of $90,200.83; and awarded attorney fees and expenses to 

Resource Title in the amount of $52,832.35. 

Assignments of Error

{¶ 10} On appeal, Solomon raises eleven assignments of error for our review: 

“I. The trial court erred in granting summary judgment to appellees where 

appellees Harwood, Resource Title, and Horvath have unclean hands. 

“II. The trial court erred in granting summary judgment to Mustafa where 

Mustafa interfered with Solomon’s contract and took title to the property in 

violation of the doctrine of lis pendens with actual notice of Solomon’s interest in 

the property. 

“III. The trial court erred in granting summary judgment to appellees where 

genuine issues of fact and credibility exist regarding whether Harwood had 

anticipatorily breached the purchase agreement, and whether Solomon had 

financing to purchase the property and could have closed such transaction had 

Harwood not breached the contract the day preceding the scheduled closing. 
“IV. The trial court erred in enforcing indemnification agreement language in 

Resource’s standard conditions of escrow where the evidence established 

unequivocally that Resource breached its fiduciary duty and contractual 

responsibilities to Solomon to assist Harwood in avoiding his contractual 

obligations to Solomon and/or was negligent in terminating the escrow prematurely. 

“V. The trial court erred in granting summary judgment to Horvath where 

Solomon satisfied both the privity and malice prongs of Scholler, the question of 

whether malice existed was a jury issue, and Solomon provided expert testimony in 

support of his legal malpractice claim. 

“VI. The trial court erred in granting summary judgment to [RBS] as the validity 

of [RBS’s] mortgage deeds depends upon the erroneous summary judgment in 

favor of Mustafa. 

“VII. The trial court erred in disregarding the application of the occupying 

claimant law R.C. 5303.08, to the claims of Solomon. 

“VIII. The trial court erred in denying Solomon the right to a jury trial on 

damages. 

“IX. The trial court erred in discharging Solomon’s mechanic’s lien. 

“X. The trial court erred in awarding damages to appellees Harwood, Resource, 

and Mustafa, and all such awards must be vacated. Further, there was no lawful 

basis to render punitive damages against Solomon. 

“XI. The trial court erred in failing to issue findings of fact and conclusions of 

law.” 

{¶ 11} Each assignment of error addresses Solomon’s claims against a separate 

appellee or group of appellees; we will discuss the evidence relevant to each party in 

turn. 

Standard of Review

{¶ 12} We review an order granting summary judgment de novo, applying the 

same standard the trial court used. “Pursuant to Civ.R. 56, summary judgment is 
appropriate when (1) there is no genuine issue of material fact, (2) the moving party is 

entitled to judgment as a matter of law, and (3) reasonable minds can come to but one 

conclusion and that conclusion is adverse to the non-moving party, said party being 

entitled to have the evidence construed most strongly in his favor.” Zivich v. Mentor 

Soccer Club, Inc., 82 Ohio St.3d 367, 369, 1998-Ohio-389, 696 N.E.2d 201. 

Harwood

{¶ 13} In the first and third assignments of error, Solomon argues that the trial 

court erred in granting summary judgment to Harwood. Solomon claims that there 

was ample evidence to show that he was ready and willing to purchase the Adelaide 

property and, if not for Harwood’s misdeeds, he would have purchased the house. 

{¶ 14} The crux of Solomon’s argument on appeal is that an issue of fact remains 

regarding whether he was able to obtain the financing necessary to close the transaction 

in a timely fashion. To support his argument that he would have been able to close the 

transaction by the extension date, December 14, 2007, he attacks the credibility of his 

lender, Richard Gill, whom, Solomon claims, changed his story when he decided to 

“align” with the appellees. 

{¶ 15} A review of the voluminous record in this case shows that there is no 

genuine issue of material fact regarding whether Solomon was able to close the 

transaction by the close of business on December 14, 2007. Simply put, Solomon was 

not able to obtain the necessary financing to purchase the property within the time 

allotted by the purchase agreement and subsequent extension. 

{¶ 16} When Solomon applied for a mortgage to purchase the property in October 
2007, his application was denied. Harwood then extended the deadline an additional 

30 days to November 30, 2007. The parties executed an addendum, which stated 

that “[i]f Solomon has not provided funds sufficient to satisfy his reimbursement 

obligations under this Contract * * * the purchase agreement between Solomon and 

Harwood will be null and void.” 

{¶ 17} The purchase agreement expired on November 30, 2007. Solomon 

admitted at deposition that his attorney, David Lynch, informed him on December 1 that 

he did not yet have financing for the property. On December 6, Harwood offered by 

letter to extend the contract an additional 14 days, if Solomon agreed to pay $2,000 and 

return the offer letter after executing the “affirmation and acknowledgment” portion of 

the letter, agreeing to the terms of the extension. 

{¶ 18} It is undisputed that Solomon did not return Harwood’s offer letter. 

Solomon claims he signed the letter, but admits neither he nor his attorney ever returned 

the letter. Lynch avers that it was his understanding that the parties were dealing “in 

good faith,” thus, it was unnecessary to execute the offer letter. But, by the plain terms 

of the letter, it required a signature to take effect. On December 13, 2007, at 3:40 

p.m., Horvath sent a fax to Lynch withdrawing the December 6 offer. Based on these 

facts, the contract to purchase the property expired on November 30, 2007, and the 

failure to complete the transaction on or before the closing date resulted in the 

expiration of the contractual relationship. See Graines v. Wald & Fisher, Inc. (Mar. 

31, 1988), Cuyahoga App. No. 53640. 

{¶ 19} Notwithstanding the expiration of the contract, Solomon proposes that he 
still has a cause of action against Harwood because he would have been able to obtain 

financing by December 14, 2007. But the record belies that contention. Richard Gill, 

the “hard money” private lender Lynch contacted to finance the transaction, testified 

that Solomon failed to comply with the necessary prerequisites to obtain the loan, 

including submitting the loan application, disclosure forms, and sales contract, or 

Solomon’s tax returns, employment verification, credit reports, bank statements, and 

insurance information. Gill testified that he was “willing and able” to make the loan, 

but Solomon and Lynch “had not provided me with all the necessary documentation for 

me to make the loan commitment.” In fact, according to Gill, he and Solomon had not 

even discussed the basic terms and conditions of the loan, including the interest rate or 

length of the loan. 

{¶ 20} Thus, the trial court correctly granted summary judgment to Harwood. 

Moreover, there is no evidence that Harwood had “unclean hands” in dealing with 

Solomon. 

{¶ 21} Therefore, the first assignment of error is overruled as it relates to 

Harwood, and the third assignment of error is overruled in toto. 

Horvath

{¶ 22} In the first and fifth assignments of error, Solomon alleges that Harwood’s 

attorney, David Horvath, had “unclean hands” and committed legal malpractice against 

Solomon. 

{¶ 23} First, there is no evidence that Horvath had “unclean hands” in his 

relations with Solomon. There is nothing other than Solomon’s own unsupported 
allegations claiming that Horvath was somehow involved in nefarious activity in 

relation to his handling of the Adelaide property. Absent anything more, Solomon’s 

allegations cannot survive summary judgment. The first assignment of error is 

overruled as it relates to Horvath. 

{¶ 24} Next, Solomon argues that Horvath committed legal malpractice against 

him. We find no merit to this argument. 

{¶ 25} To establish a claim for legal malpractice, Solomon must show that 1) 

Horvath owed him a duty; 2) Horvath failed to conform to the standard of care required 

by law; and 3) there is a causal connection between the conduct complained of and the 

resulting damage or loss. Vahila v. Hall, 77 Ohio St.3d 421, 1997-Ohio-259, 674 

N.E.2d 1164. There is no evidence that Horvath ever represented Solomon; nor is 

Solomon arguing that Horvath was his attorney. Horvath represented Harwood, who 

was being sued by Solomon. Solomon was represented by his own counsel, David 

Lynch. 

{¶ 26} In Scholler v. Scholler (1984), 10 Ohio St.3d 98, 462 N.E.2d 158, the Ohio 

Supreme Court held that attorneys have a qualified immunity from liability to third 

parties for acts or omissions concerning the representation of a client. The Court 

found that “[a]n attorney is immune from liability to third persons arising from his 

performance as an attorney in good faith on behalf of, and with the knowledge of his 

client, unless such third person is in privity with the client or the attorney acts 

maliciously.” Id. at paragraph one of the syllabus. Solomon claims that his cause of 

action against Horvath should survive summary judgment because there is a question of 
fact whether the attorney acted with “malice.” But Solomon has set forth no evidence, 

other than unsupported allegations, that Horvath acted with any malice. 

{¶ 27} Solomon has also failed to set forth evidence that he and Harwood are in 

privity. To be in privity, Solomon would have to show that his and Harwood’s 

interests were the same, “such that representing the client is equivalent to representing 

the party alleging privity with the client.” Scholler at 103-104. Solomon and 

Harwood clearly had opposing interests; therefore, they were not in privity to each 

other. 

{¶ 28} Thus, the fifth assignment of error is overruled. 

Resource Title

{¶ 29} Resource Title Agency was the title agency that Harwood and Solomon 

were using in their attempts to complete the sale of the property. 

{¶ 30} In October 2007, during the time period in which Solomon was to gain 

financing to purchase the house, Solomon and Harwood caused an escrow to be opened 

at Resource Title and deposited the contract into escrow with the title agency. 

Solomon and Harwood executed two forms: “Standard Conditions of Settlement Agent” 

and “Acceptance of Escrow.” The Standard Conditions contained an indemnification 

clause whereby both buyer and seller agreed to hold the agency harmless from any loss 

or damage resulting from the termination or declinations and also indemnify the agency 

for “any loss, cost or damages including, without limitations, attorneys fees and costs of 

litigation.” 

{¶ 31} After the escrow was opened, Solomon and Harwood executed an 
“Escrow Instructions Addendum to Contract.” Pursuant to the addendum, Solomon 

deposited $200,000 of the purchase price into escrow. Resource Title then transferred 

the funds to Washington Mutual, in conformance with the agency’s standard processes. 

{¶ 32} Although the remainder of the funds were to be deposited with Resource 

Title prior to the extended closing date of December 14, 2007, Harwood never 

deposited those funds. Resource Title refunded the $200,000 deposit to Solomon. In 

its counterclaim, the title agency claimed that it incurred damages of $52,385.35 in 

attorney fees and litigation costs. 

{¶ 33} On appeal, Solomon alleges that the trial court erred in granting summary 

judgment in favor of Resource Title because the company had “unclean hands” (first 

assignment of error), and breached its fiduciary duty and contractual responsibilities to 

Solomon (fourth assignment of error). Solomon also claims that the trial court erred in 

awarding damages to the agency (tenth assignment of error). But there is no evidence 

that Resource Title acted improperly. When it became known to the title company that 

the purchase was not going to go through, the company refunded Solomon’s $200,000 

deposit. Moreover, Solomon executed the Standard Conditions form, which included 

an indemnification clause. Based on these facts, the trial court did not err when it 

granted summary judgment in Resource Title’s favor. 

{¶ 34} The first assignment of error is overruled as it relates to Resource Title. 

The fourth assignment of error is overruled in toto. As to the tenth assignment of 

error, it is discussed separately, infra. 

The Mustafas
{¶ 35} Mukhless and Remah Mustafa were the eventual purchasers of the 

Adelaide property. In the second assignment of error, Solomon argues that the trial 

court erred in granting summary judgment to the Mustafas because they interfered with 

his contract on the property and the doctrine of lis pendens should have applied to bar 

their possession of the property. 

{¶ 36} Although Solomon mentions in the heading to his second assignment of 

error that the Mustafas interfered with his contract with Harwood, he neither makes that 

argument nor supports it. App.R. 16(A)(7) provides that the appellant’s brief shall 

include “[a]n argument containing the contentions of the appellant with respect to each 

assignment of error presented for review and the reasons in support of the contentions, 

with citations to the authorities, statutes, and parts of the record on which appellant 

relies. * * *.” “It is not the duty of an appellate court to search the record for 

evidence to support an appellant’s argument as to any alleged error.” Rodriguez v. 

Rodriguez, Cuyahoga App. No. 91412, 2009-Ohio-3456, ¶7, citing State v. McGuire 

(Apr. 15, 1996), Preble App. No. CA95–01–001. Thus, we could, in our discretion, 

choose not to address Solomon’s contention that the Mustafas interfered with his 

contract. But in briefly addressing his arguments, there is no evidence that the 

Mustafas interfered with the contract Harwood had with Solomon. 

{¶ 37} In order to recover for a claim of intentional interference with a contract, 

one must prove (1) the existence of a contract, (2) the wrongdoer’s knowledge of the 

contract, (3) the wrongdoer’s intentional procurement of the contract’s breach, (4) the 

lack of justification, and (5) resulting damages. Kenty v. Transamerica Premium Ins. 
Co., 72 Ohio St.3d 415, 1995-Ohio-61, 650 N.E.2d 863, paragraph two of the syllabus. 

{¶ 38} Solomon has presented no evidence that the Mustafas knew of his contract 

with Harwood and that if they did know, they induced Harwood to breach the contract. 

The evidence presented shows that Harwood granted Solomon one extension and then 

offered to grant him a second extension to come up with financing for the house. 

Harwood contracted with the Mustafas on December 7, 2007, but that agreement was 

“subject to release from tenant.” Although the purchase agreement the Mustafas and 

Harwood executed occurred before December 14, the contract between Harwood and 

Solomon ended November 30, 2007. Thus, there was no contract between Harwood 

and Solomon for the Mustafas to interfere in. Solomon’s argument on this claim fails. 

{¶ 39} Finally, the doctrine of lis pendens does not apply to the case at bar. R.C. 

2703.26 provides that “[w]hen a complaint is filed, the action is pending so as to charge 

a third person with notice of its pendency. While pending, no interest can be acquired 

by third persons in the subject of the action, as against the plaintiff’s title.” Solomon 

has alleged that the Mustafas acquired their interest in the Adelaide property prior to his 

lawsuit being filed. Therefore, R.C. 2703.26 does not apply. But even if a court 

were to find that the Mustafas acquired the interest after Solomon filed his complaint, 

lis pendens is not a substantive right. “It does not create a lien, but charges the 

purchaser with notice of the pending action. If applicable, it does not prevent persons 

from transacting an interest in the property subject to litigation”; rather, any conveyed 

interest becomes subject to the outcome of the pending litigation. (Internal citations 

omitted.) Cincinnati ex rel. Ritter v. Cincinnati Reds, L.L.C., 150 Ohio App.3d 728, 
2002-Ohio-7078, 782 N.E.2d 1225, appeal not allowed by 98 Ohio St.3d 1539, 

2003-Ohio-1946, 786 N.E.2d 901. Therefore, even if the doctrine did apply, it would 

not create a cause of action against the Mustafas. 

{¶ 40} Based on these facts, the trial court correctly granted summary judgment 

to the Mustafas, and the second assignment of error is overruled. 

RBS Citizens, N.A.

{¶ 41} RBS Citizens, N.A., was the Mustafas’s lender. RBS recorded two 

mortgages on the Adelaide property in February 2008. Solomon argues in his sixth 

assignment of error that “the same arguments that pertain to Mustafa pertain to [RBS].” 

 Again, Solomon claims that the doctrine of lis pendens invalidates the deed from 

Harwood to the Mustafas because the transfer occurred during the pendency of the court 

case. Since the Mustafas’s purchase of the property is null and void, Solomon argues, 

RBS’s mortgages are also void. RBS contends that the doctrine of lis pendens does 

not apply so the mortgages granted in favor of RBS were valid. 

{¶ 42} Because we have already found that the trial court correctly granted 

summary judgment in favor of the Mustafas, it follows that the trial court was correct in 

granting summary judgment to RBS. There is no evidence that the mortgages RBS 

granted to the Mustafas were void. 

{¶ 43} The sixth assignment of error is overruled. 

Occupying Claimant Law

{¶ 44} In the seventh assignment of error, Solomon argues that the trial court 

erred by failing to apply Ohio’s “occupying claimant law” to this case. R.C. 5303.08 
provides as follows: 

“A person who, without fraud or collusion on his part, obtained title to and is in 

the quiet possession of lands or tenements, claiming to own them, shall not be 

evicted or turned out of possession by any person who sets up and proves an 

adverse and better title, until the occupying claimant, or his heirs, is paid the 

value of lasting improvements made by the occupying claimant on the land, or by 

the person under whom he holds, before the commencement of suit on the 

adverse claim by which such eviction may be effected, unless the occupying 

claimant refuses to pay to the party establishing a better title the value of the 

lands without such improvements, on demand by him or his heirs, when such 

occupying claimant holds: 

“(A) Under a plain and connected title, in law or equity, derived from the records 

of a public office; 

(B) By deed, devise, descent, contract, bond, or agreement, from and under a 

person claiming a plain and connected title, in law or equity, derived from the 

records of a public office, or by deed authenticated and recorded; 

“(C) Under sale on execution against a person claiming a plain and connected 

title, in law or equity, derived from the records of a public office, or by deed 

authenticated and recorded; 

“(D) Under a sale for taxes authorized by the laws of this state; 

“(E) Under a sale and conveyance made by executors, administrators, or 

guardians, or by any other person, in pursuance of an order or decree of court, 

where lands are directed to be sold.” 

{¶ 45} According to Solomon, R.C. 5303.08 applies to this case because he was 

an equitable owner of the property based on the first purchase agreement he signed with 

Harwood. He argues he had “color of title” under the deed the parties deposited into 

escrow with Resource Title. 

{¶ 46} It is unclear whether Solomon is arguing that he was entitled to payment 

for the improvements he alleges he made to the property or that he should not have been 
evicted from the property. Nevertheless, R.C. 5303.08 does not apply to Solomon 

because he never gained title to the property. Although he and Harwood deposited the 

deed into escrow, Solomon never obtained the deed or title to the property. A 

purchaser, after delaying for many years to pay the purchase price, is not entitled to 

value of improvements. Mann v. Dun (1853), 2 Ohio St. 187. In addition, payment 

for lasting improvements, pursuant to R.C. 5303.08, can be awarded only if the 

occupying claimant acquired title to the disputed premises in a manner designated by 

the statute. Ohio Dept. of Adm. Serv. v. Morrow (1990), 67 Ohio App.3d 225, 586 

N.E.2d 259. 

{¶ 47} According to the original purchase agreement executed by the parties, 

Solomon was a lessee, who was charged with paying rent and utilities and maintaining 

the property. Thus, the trial court did not err in failing to apply R.C. 5303.08 to the 

case at bar. 

{¶ 48} The seventh assignment of error is overruled. 

Attorney’s Fees

{¶ 49} In the eighth assignment of error, Solomon claims the trial court erred in 

denying him the right to a jury trial on damages. 

{¶ 50} In this assignment of error, Solomon does not challenge that court’s 

decision to award attorney’s fees, instead, he merely claims that he had a right to a jury 

trial on the issue. But a litigant does not have a right to trial by jury to determine the 

amount of attorney’s fees. Digital & Analog Design Corp. v. N. Supply Co. (1992), 63 

Ohio St.3d 657, 590 N.E.2d 737, overruled on other grounds by Zoppo v. Homestead 
Ins. Co., 71 Ohio St.3d 552, 1994-Ohio-461, 644 N.E.2d 397. We also decline to 

review the amount of attorney’s fees awarded in this case, as Solomon does not dispute 

the amount of the award. 

{¶ 51} Therefore, the eighth assignment of error is overruled. 

Mechanic’s Lien

{¶ 52} In the ninth assignment of error, Solomon argues that the trial court erred 

in discharging his mechanic’s lien. Within this assignment of error, Solomon contends 

that he was the equitable owner of the property; therefore, he was authorized to perform 

work on the property or to hire someone else to do the work. 

{¶ 53} “The purpose of the mechanics’ lien law is to provide a contractor or 

material man with a means of obtaining a lien on real estate to secure a claim for labor 

performed or material supplied.” Thrush v. Thrush (Apr. 26, 1988), Union App. No. 

14-86-17. “A mechanics’ lien (1) gives a materialman an interest in the property to 

secure payment for materials and (2) fixes the order of priority for that payment.” 

Portco, Inc. v. Eye Specialists, Inc., 177 Ohio App.3d 139, 2008-Ohio-3154, 894 

N.E.2d 84, at ¶9. R.C. 1311.02 provides for the filing of a mechanics’ lien where labor 

has been performed on personal property, as follows: 

“Every person who performs work or labor upon or furnishes material in 

furtherance of any improvement undertaken by virtue of a contract, express or 

implied, with the owner, part owner, or lessee of any interest in real estate, or the 

owner’s, part owner’s, or lessee’s authorized agent, and every person who as a 

subcontractor, laborer, or material supplier, performs any labor or work or 

furnishes any material to an original contractor or any subcontractor, in carrying 

forward, performing, or completing any improvement, has a lien to secure the 

payment therefor upon the improvement and all interests that the owner, part 

owner, or lessee may have or subsequently acquire in the land or leasehold to 
which the improvement was made or removed.” 

{¶ 54} Mechanics’ liens can only properly attach where a contract exists. JC&F 

Invests., L.L.C. v. Housholder, Shelby App. No. 17-08-11, 2008-Ohio-5313. “[T]he 

statute requires by its terms, as a condition to the existence of a lien, that the labor be 

performed or material furnished by virtue of a contract, expressed or implied, with the 

owner * * *.” Id., citing Benes v. United States (C.A. 6, 1960), 276 F.2d 99. 

{¶ 55} The mechanic’s lien Solomon filed claimed a lien in the amount of 

$107,000. To support this amount, Solomon provided, during discovery, undated 

invoices that showed maintenance and repairs made to the property from October 2005 

to December 2007. He also submitted various receipts from The Home Depot and for 

landscaping supplies. 

{¶ 56} As discussed in the seventh assignment of error, although Solomon was 

the intended purchaser of the property, his status was that of a lessee. The lease the 

parties signed provided, in part, as follows: 

“ * * * 

“3. Lease amount with be Eighteen Hundred dollars per month, plus the cost of 

all necessary maintenance and repairs. Buyer will pay for all utilities including 

water and sewer while occupying this property during the lease. 

“ * * * 

“6. Buyer agrees to lease and maintain this property until the sale is completed. 

 * * *.” (Emphasis added). 

{¶ 57} In order for the mechanic’s lien to properly attach to the property, there 

had to be a contract for the renovations. But there was no contract between the parties, 
either express or implied, that provided Solomon would be compensated for 

improvements he made to the property. The only contract present in this case was the 

lease, which did not concern any renovations that Solomon would need to make, and, in 

fact, clearly states that Solomon is responsible for the cost of “all necessary 

maintenance and repairs.” See JC&F Invests. at ¶43. Therefore, the trial court did 

not err in discharging the mechanic’s lien. 

{¶ 58} Accordingly, the ninth assignment of error is overruled. 

Damages

{¶ 59} In the tenth assignment of error, Solomon claims that the trial court erred 

in awarding damages and in assessing punitive damages against him. However, once 

again, Solomon has failed to support his claims with citations to the record, case law, or 

statutes. See App.R. 12(A)(2) and 16(A)(7). Instead, he merely states in arguing this 

assignment of error, “all of the damage awards on this case are predicated upon 

determinations of liability which are erroneous. Therefore, all damage awards in this 

case must be vacated. Further, there were no valid grounds to impose punitive 

damages against Solomon for filing a lien.” That is his entire argument. 

{¶ 60} “An appellate court is not a performing bear, required to dance to each and 

every tune played on an appeal.” Rodriguez, supra, citing State v. Watson (1998), 126 

Ohio App.3d 316, 710 N.E.2d 340. Since it is not this court’s job to make Solomon’s 

arguments for him, we will not further address this assignment of error. The tenth 

assignment of error is overruled. 

Findings of Fact and Conclusions of Law
{¶ 61} Finally, Solomon claims in his eleventh assignment of error that the trial 

court erred in denying his motion for findings of fact and conclusions of law. But it is 

well settled in Ohio that a trial court is not required to issue a written opinion containing 

findings of fact and conclusions of law when ruling on a motion for summary judgment. 

 Tiefel v. Gilligan (1974), 40 Ohio App.2d 491, 495, 321 N.E.2d 247; Civ.R. 52. 

{¶ 62} The eleventh assignment of error is overruled. 

Cross-appeal

{¶ 63} Resource Title filed a notice of cross-appeal, assigning one error for our 

review. In its sole assignment of error, Resource Title claims the trial court committed 

reversible error in denying its motion for sanctions. 

{¶ 64} Our review of a trial court’s decision on a motion for sanctions is 

reviewed for an abuse of discretion. Mitchell v. W. Res. Area Agency on Aging, 

Cuyahoga App. Nos. 83837 and 83877, 2004-Ohio-4353, citing Cook Paving & Constr. 

Co. Inc. v. Treeline Inc., Cuyahoga App. No. 77408, 2001-Ohio-4235; Pisani v. Pisani 

(1995), 101 Ohio App.3d 83, 654 N.E.2d 1355. 

{¶ 65} Resource Title’s argument is puzzling. Resource Title moved for 

sanctions against Solomon and his attorney pursuant to R.C. 2323.51, which provides 

for award of attorney’s fees as sanction for frivolous conduct. Resource Title then 

moved for summary judgment on the issue of damages. The trial court granted the 

motion for summary judgment on the issue of damages and awarded Resource Title 

attorney’s fees and expenses in the amount of $52,832.35, which is the amount 

Resource Title requested. Pursuant to statute, Resource Title cannot recover more than 
reasonable attorney’s fees and expenses. Thus, there is nothing more the trial court 

could have awarded them, nor is Resource Title disputing the amount awarded to them 

pursuant to their summary judgment motion. 

{¶ 66} The trial court did not err in denying Resource Title’s motion for 

sanctions. Therefore, the cross-assignment of error is overruled. 

Judgment affirmed. 

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 Cuyahoga 

County Court of Common Pleas 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. 

 

LARRY A. JONES, JUDGE 

PATRICIA A. BLACKMON, P.J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR