Legal Memorandum: Waiver of Statute of Frauds Defense in OH

Issue: Under Ohio law, does a party waive the statute of frauds defense if it is not raised in the pleadings?

The statute of frauds is a requiring that certain agreements, including agreements for the sale of real estate, be in writing in order to be enforceable.  Ohio Rev. Code Ann. §§ 1335.04, .05 (Banks-Baldwin 1993).  Statute of frauds is an affirmative defense that must be set forth in the initial pleadings.  Ohio Civ. R. 8(C).  A party who fails to set forth the statute of frauds defense in the answer waives the defense.  Houser v. Ohio Historical Soc’y, 62 Ohio St. 3d 77, 79, 403 N.E.2d 965, 967 (1980); McSweeney v. Jackson, 117 Ohio App. 3d 623, 629, 691 N.E.2d 303, 306 (1996).

Thus, for example, in McSweeney, the statute of frauds was waived because the vendors failed to raise it as an affirmative defense.  Id., 117 Ohio App. 3d at 629, 691 N.E.2d at 306.  They failed to raise it at any time prior to trial.  Id.  In the purchaser’s action for specific performance of an oral contract to sell real estate, the vendors asserted for the first time in opening arguments that the agreement was unenforceable under the statute of frauds.  Id.  The court disagreed, and the appeals court affirmed.  Id., 117 Ohio App. 3d at 629-30, 691 N.E.2d at 306-07.  "[T]he trial court was correct in finding that [the sellers] waived the statute of frauds as an affirmative defense.  Id., 117 Ohio App. 3d at 630, 691 N.E.2d at 307.

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