[Cite as Fry v. Speelman, 2017-Ohio-5478.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF WAYNE ) 

JAMES R. FRY, et al. 

 Appellees/Cross-Appellants 

 v. 

GRACE A. SPEELMAN 

 Appellant/Cross-Appellee 

C.A. No. 16AP0001 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF WAYNE, OHIO 

CASE No. 2014 CVC-H 000512 

DECISION AND JOURNAL ENTRY 

Dated: June 26, 2017 

 

HENSAL, Presiding Judge. 

{¶1} Grace A. Speelman appeals from the judgment of the Wayne County Court of 

Common Pleas that granted summary judgment in favor of James and Dianne Fry. The Frys 

filed a cross-appeal, challenging part of the trial court’s judgment. For the reasons that follow, 

we reverse and remand the matter for further proceedings consistent with this decision. 

I. 

{¶2} This appeal concerns a right of first refusal and a landowner’s alleged failure to 

abide by its terms. James Fry is Grace Speelman’s nephew by marriage. In 2004, Mr. Fry and 

his wife purchased over 81 acres of farmland from Ms. Speelman. As a condition to that 

purchase, the parties executed a right of first refusal pertaining to an adjoining 8.47 acres of land, 

which the parties refer to as the “Frontage.” 

{¶3} The right of first refusal provided, in part, that if Ms. Speelman desired to sell the 

Frontage (or any portion thereof), she had to first notify the Frys in writing, who would then 
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have the option to purchase it for $10,000 per acre (“Option I”). If the Frys opted not to 

purchase the Frontage on those terms (or if they did not respond to the notice within 30 days), 

Ms. Speelman had the right to offer the Frontage (or any portion thereof) to a third-party 

purchaser. If she received a bona fide written offer that she was willing to accept, she was then 

required to provide a copy of that offer to the Frys, who would then have the right to purchase 

the Frontage on those terms, or refuse (“Option II”). 

{¶4} In 2014, Ms. Speelman transferred1

 the Frontage to her grandson, Michael 

Maurer, and his wife. There is no dispute that Ms. Speelman did not give the Frys the 

opportunity to purchase the Frontage before transferring it to the Maurers. Upon learning of the 

transfer through a newspaper, the Frys contacted the attorney who drafted the right of first of 

refusal. That attorney sent a letter to the attorney involved with the Maurer transaction. The 

letter explained that Ms. Speelman and the Frys executed a right of first refusal, and advised that 

the Frys wished to exercise their rights thereunder by purchasing the Frontage from the Maurers 

for $25,000 (the amount they believed the Maurers paid or agreed to pay Ms. Speelman). 

{¶5} When Ms. Speelman learned of the letter, she had the Maurers transfer the 

Frontage back to her “as quickly as [they] could.” The Frys filed suit shortly thereafter against 

Ms. Speelman and the Maurers, requesting, in part, that the trial court: (1) declare that they were 

entitled to exercise their rights under the right of first refusal; and (2) order Ms. Speelman and 

the Maurers to transfer the Frontage to them for no more than $25,000. Ms. Speelman filed a 

counterclaim, seeking a declaratory judgment as to the rights and obligations conferred by the 

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 The parties dispute whether Ms. Speelman sold the Frontage to the Maurers, or whether 

it was a donative transfer. We need not decide whether the transfer was by gift or by sale, as 

doing so is not necessary for purposes of our disposition of this appeal. We, therefore, use the 

term “transfer” in a general sense without intending to assign it legal significance. 
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right of first refusal. The Maurers were later dismissed as parties on the basis that they no longer 

had any interest in the Frontage. 

{¶6} The Frys moved for summary judgment, arguing that no genuine issue of material 

fact remained, and that they were entitled to specific performance under Option II, arguing that 

the court order the Frontage transferred to them for the sum of $25,000. Ms. Speelman also 

moved for summary judgment, arguing, in part, that because she never received a written offer 

from the Maurers, the right of first refusal under Option II was never triggered. 

{¶7} The trial court denied Ms. Speelman’s motion, dismissed her counterclaim, and 

granted summary judgment in favor of the Frys. In doing so, the trial court determined that the 

transfer of the Frontage to the Maurers triggered the right of first refusal, and that Ms. Speelman 

should have given the Frys the opportunity to purchase the Frontage under Option I for $84,700 

($10,000 per acre). Its order states, in part: 

[The Frys’] motion for summary judgment is granted. Judgment for [the Frys] in 

that they may offer [Ms. Speelman] $84,700 for the property and [Ms. Speelman] 

must accept the offer, if forthcoming. If no offer is forthcoming, [Ms. Speelman] 

may offer the property to a third-party and the Frys will have the option of 

matching the offer or [Ms. Speelman] may decline to offer the property to a thirdparty. 

{¶8} Ms. Speelman now appeals, raising two assignments of error for our review. The 

Frys have cross-appealed, raising one assignment of error. For ease of consideration, we will 

address Ms. Speelman’s assignments of error together. 

II. 

MS. SPEELMAN’S ASSIGNMENT OF ERROR I 

THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT 

ON THE FRYS’ CLAIM FOR SPECIFIC PERFORMANCE AND DENIED 

MRS. SPEELMAN’S MOTION FOR SUMMARY JUDGMENT ON THE 

BASIS THAT THE TRANSFER OF THE PROPERTY TO THE MAURERS 
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TRIGGERED THE RIGHT OF FIRST REFUSAL UNDER PARAGRAPH 

2.01(a) OF THE AGREEMENT. 

MS. SPEELMAN’S ASSIGNMENT OF ERROR II 

THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT 

ON THE FRYS’ CLAIM FOR SPECIFIC PERFORMANCE AND ORDERED 

THAT MRS. SPEELMAN MUST ACCEPT THE FRYS’ OFFER OF $84,700 

FOR THE DISPUTED PROPERTY, IF FORTHCOMING, BECAUSE SUCH A 

RESULT IS HARSH AND OPPRESSIVE AND THERE IS NO EVIDENCE 

THAT THE FRYS HAVE BEEN DAMAGED BY THE RESCINDED 

TRANSFER. 

{¶9} In her first assignment of error, Ms. Speelman argues that the trial court erred 

when it denied her motion for summary judgment and entered judgment in favor of the Frys. 

She argues that the transfer of the Frontage to the Maurers did not trigger the right of first refusal 

under Option I because she never desired to sell the Frontage to the Maurers. In her second 

assignment of error, Ms. Speelman argues that the trial court erred by ordering specific 

performance because such a result is harsh and oppressive. As explained below, we need not 

address the merits of Ms. Speelman’s arguments because the trial court lacked authority to order 

specific performance under Option I. 

{¶10} “A party seeking summary judgment must specifically delineate the basis upon 

which summary judgment is sought in order to allow the opposing party a meaningful 

opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988), syllabus. Relatedly, “[a]

trial court cannot grant summary judgment on grounds not raised[.]” Huntington Natl. Bank v. 

Calvert, 9th Dist. Summit No. 25684, 2012 -Ohio- 2883, ¶ 20. 

{¶11} Here, the Frys requested specific performance under Option II, that is, to allow 

them to purchase the Frontage under the same terms as the Maurer transaction. They made this 

request in their motion for summary judgment no less than seven times. Nowhere in their 

motion did the Frys request that the trial court order specific performance under Option I. 
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Indeed, Ms. Speelman acknowledged this in her own motion for summary judgment,2 stating that 

“[the Frys] are not arguing for a right to purchase the property for $84,700, as provided [under 

Option I]. Instead, they seek to * * * purchase the property * * * [under Option II].” In their 

response to her motion, the Frys asserted that the trial court should order specific performance 

under Option I or Option II. That, however, does not alter the fact that their own motion was 

based upon – and requested relief under – Option II only. 

{¶12} Despite the fact that the Frys requested specific performance under Option II (i.e., 

the opportunity to purchase the Frontage for $25,000), the trial court ordered specific 

performance under Option I (i.e., holding that the Frys could offer to purchase the Frontage for 

$84,700, and that Ms. Speelman would have to accept that offer). Because the Frys’ motion for 

summary judgment was based upon – and requested relief under – Option II only, we hold that 

the trial court erred by ordering specific performance under Option I. Ms. Speelman’s 

assignments of error are sustained on that basis. 

THE FRYS’ ASSIGNMENT OF ERROR 

THE TRIAL COURT ERRED BY HOLDING MRS. SPEELMAN’S SALE OF 

THE DISPUTED PROPERTY TO THE MAURERS DID NOT TRIGGER THE 

RIGHT OF FIRST REFUSAL CONTAINED IN PARAGRAPH 2.01(b) OF THE 

AGREEMENT (“OPTION #2”). 

{¶13} In their sole assignment of error, the Frys argue that the trial court erred by 

holding that Ms. Speelman’s transfer of the Frontage to the Maurers did not trigger the right of 

first refusal under Option II. Our review of the trial court’s order, however, indicates that the 

trial court did not make a determination as to Option II. While the order does state that a genuine 

issue of material fact remained regarding the amount of consideration that the Maurers offered to 

 2

 We note that Ms. Speelman combined her motion for summary judgment with her brief 

in opposition to the Frys’ motion for summary judgment. 
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Ms. Speelman, it does not contain any meaningful analysis of Option II. This Court will not 

make a determination as to whether Ms. Speelman’s transfer of the Frontage to the Maurers 

triggered the right of first refusal under Option II in the first instance. Skidmore v. Natl. Bronze 

& Metals (Ohio) Inc., 9th Dist. Lorain No. 12CA010328, 2014-Ohio-4423, ¶ 16 (“[T]his Court 

generally will not decide issues in the first instance[.]”). Accordingly, the Frys’ assignment of 

error asserted on cross-appeal is overruled. 

III. 

{¶14} Ms. Speelman’s assignments of error are sustained on the basis that the trial court 

lacked authority to order specific performance under Option I. The Frys’ assignment of error 

asserted on cross-appeal is overruled. The judgment of the Wayne County Court of Common 

Pleas is reversed, and the matter is remanded for further proceedings consistent with this 

decision. 

Judgment reversed, 

and cause remanded. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 
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 Costs taxed to Appellees/Cross-Appellants. 

 

 JENNIFER HENSAL 

 FOR THE COURT 

CARR, J. 

TEODOSIO, J. 

CONCUR. 

APPEARANCES: 

ALETHA M. CARVE, Attorney at Law, for Appellant/Cross-Appellee. 

MATTHEW P. MULLEN, Attorney at Law, for Appellant/Cross-Appellee. 

J. DOUGLAS DRUSHAL and SARAH B. BAKER, Attorneys at Law, for Appellees/CrossAppellants.