Hmeidan v. Rawahneh

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[Cite as Hmeidan v. Rawahneh, 2011-Ohio-6149.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT EDDIE HMEIDAN ET AL., Plaintiffs-Appellants, v. ZAID RAWAHNEH ET. AL., Defendants-Appellees. : : : : : : : : : JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. Case No. 2011CA00097 OPINION CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2010CV02284 JUDGMENT: Affirmed/Reversed in Part & Remanded DATE OF JUDGMENT: November 28, 2011 APPEARANCES: For Plaintiffs-Appellants For Defendants-Appellees G. IAN CRAWFORD 116 Cleveland Avenue, NW Suite 800 Canton, OH 44702 JOHN S. KAMINSKI KRISTEN S. MOORE Millennium Centre Suite 300 200 Market Avenue North P.O. Box 24213 Canton, OH 44701-4213 Stark County, Case No. 2011CA00097 2 Farmer, J. {¶ 1} On June 16, 2010, appellants, Eddie Hmeidan and Mimi Hmeidan, f.k.a. Mimi Hamdan, filed a complaint against appellees, Ziad Rawahneh and Goodtimes Pub & Drive Thru, Inc., stemming from appellee Rawahneh's purchase of Goodtimes Pub from appellants. The complaint alleged at issue were two promissory notes, one in the amount of $175,000.00 payable to appellant Eddie Hmeidan, and the second in the amount of $100,000.00 payable to appellant Mimi Hamdan, k.n.a. Mimi Hmeidan. Appellants alleged there remained an outstanding balance due and payable by appellees in the amount of $85,000.00. Appellants also alleged they loaned appellee Rawahneh amounts of $47,837.00 and $20,000.00 which are also outstanding. {¶ 2} On February 1, 2011, appellees filed a motion for summary judgment. By judgment entry filed March 30, 2011, the trial court granted the motion. {¶ 3} Appellants filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I {¶ 4} "THE TRIAL COURT ERRED BY GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT AS APPELLEES WERE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW." I {¶ 5} Appellants claims the trial court erred in granting summary judgment for appellees as there exists genuine issues of material fact as to Count I of their complaint. Appellants further claim Counts II and III were dismissed in error. We agree in part. Stark County, Case No. 2011CA00097 3 {¶ 6} Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211: {¶ 7} "Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274." {¶ 8} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35. {¶ 9} In Count I of their complaint, appellants claim appellees failed to make payments on a promissory note dated October 7, 2005 payable to appellant Eddie Hmeidan, attached to the complaint as Exhibit A. {¶ 10} In its judgment entry filed March 30, 2011, the trial court found the purchase agreement memorialized the fact that the purchase was predicated on one promissory note for $200,000.00 which had been paid in full: Stark County, Case No. 2011CA00097 4 {¶ 11} "The Court finds that the Purchase Agreement in this matter provides that its terms constitute all the terms of the agreement, stating: {¶ 12} "This Agreement and the schedules and exhibits hereto and the ancillary documents executed hereunder set forth the entire agreement and understanding supersede and cancel any and all prior discussions, correspondence, agreements, or understandings (whether oral or written) between the parties hereto with respect to such matters. {¶ 13} "Further, the Court finds that the Purchase Agreement clearly states that only one Promissory Note was contemplated and that the purchase price was a total of two hundred thousand dollars ($200,000.00). The Court finds that the Purchase Agreement is clear and unambiguous and requires no further interpretation." {¶ 14} We concur with the trial court's decision as it's clearly within the Supreme Court of Ohio's ruling in Ed Schory & Sons, Inc. v. Society National Bank, 75 Ohio St.3d 433, 440, 1996-Ohio-194: {¶ 15} " 'The Parol Evidence Rule was developed centuries ago to protect the integrity of written contracts.' Shanker, Judicial Misuses of the Word Fraud to Defeat the Parol Evidence Rule and the Statute of Frauds (With Some Cheers and Jeers for the Ohio Supreme Court) (1989), 23 Akron L.Rev. 2. The parol evidence rule is a rule of substantive law that prohibits a party who has entered into a written contract from contradicting the terms of the contract with evidence of alleged or actual agreements. Id. 'When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations Stark County, Case No. 2011CA00097 5 will not be admitted for the purpose of varying or contradicting the writing.' 3 Corbin, Corbin on Contracts (1960) 357, Section 573. See, also, Charles A. Burton, Inc. v. Durkee (1952), 158 Ohio St. 313, 49 O.O. 174, 109 N.E.2d 265. {¶ 16} "As is apparent from the foregoing, the parol evidence rule will not be overcome by merely alleging that a statement or agreement made prior to an unambiguous written contract is different from that which is contained in the contract. Stated differently, 'an oral agreement cannot be enforced in preference to a signed writing which pertains to exactly the same subject matter, yet has different terms.' Marion, supra, 40 Ohio St.3d 265, 533 N.E.2d 325, paragraph three of the syllabus." {¶ 17} In further support of the trial court's decision, we fail to find that the alleged "second promissory note" would qualify under the best evidence rule (Evid.R. 1002): {¶ 18} "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio." {¶ 19} The trial court's decision is silent as to Counts II and III of the complaint. Appellees argued these counts were barred by appellants' failure to raise them as compulsory counterclaims in a previous action. Civ.R. 13(A) governs compulsory counterclaims and states the following: {¶ 20} "A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court Stark County, Case No. 2011CA00097 6 cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13." {¶ 21} In Rettig Enterprises, Inc. v. Koehler, 68 Ohio St.3d 274, 277, 1994-Ohio127, the Supreme Court of Ohio noted the following: {¶ 22} "In Geauga Truck & Implement Co. v. Juskiewicz (1984), 9 Ohio St.3d 12, 14, 9 OBR 61, 63, 457 N.E.2d 827, 829, this court stated that '[t]he two-pronged test for applying Civ.R. 13(A) is: (1) does the claim exist at the time of serving the pleading * * *; and (2) does the claim arise out of the transaction or occurrence that is the subject matter of the opposing claim.' If both prongs are met, then the present claim was a compulsory counterclaim in the earlier action and is barred by virtue of Civ.R. 13(A). Id." {¶ 23} Counts II and III of appellants' complaint allege the following in pertinent part: {¶ 24} "14. Following the original conveyance of Plaintiffs' former business to Defendants, Plaintiffs made a number of additional loans to Defendant Rawahneh in the aggregate amount of Forty-Seven Thousand Eight Hundred Thirty-Seven Dollars ($47,837.00). {¶ 25} "15. On or about October 12, 2005, Defendant Rawahneh verified his indebtedness to the Plaintiff Eddie Hmeidan for the aforesaid loans in writing. Stark County, Case No. 2011CA00097 7 {¶ 26} "17. Defendant Rawahneh has failed to make any payments to Plaintiffs on the aforesaid additional loan. {¶ 27} "18. The outstanding principal balance of the additional loan remains at Forty-Seven Thousand Eight Hundred Thirty-Seven Dollars ($47,837.00). {¶ 28} "22. On or about July 7, 2007, Plaintiff Eddie Hmeidan made what he was assured would be a 'short term' loan to Defendant Rawahneh in the aggregate amount of Twenty Thousand Dollars ($20,000.00). {¶ 29} "25. The present outstanding balance of the aforesaid additional loan is Tweny Thousand Dollars ($20,000.00)." {¶ 30} Both counts alleged the loans were made by appellant Eddie Hmeidan. {¶ 31} Appellees argue these claims are barred by Civ. R. 13(A) as they arose out of the same transaction involved in Goodtimes Pub & Drive Thru, Inc. v. Mimi Hmeidan, Stark C.P. No. 2009CV00486. In said case, Goodtimes Pub sued Mimi Hmeidan for breach of contract in failing to sell the subject real estate via an option agreement in a lease dated October 17, 2005. Goodtimes Pub alleged that it exercised the option under the lease on January 6, 2008. This 2009 lawsuit was filed on February 4, 2009. {¶ 32} The obvious issue is whether there is unanimity of interest. Although the sale of Goodtimes Pub is alleged in the matter sub judice, the claim of monies owed is only against an individual, appellee Rawahneh, and not an Ohio corporation. The lease in the 2009 lawsuit involved Mimi Hmeidan who is an appellant in this case. However, the allegations of Counts II and III are that appellant Eddie Hmeidan loaned the money to appellee Rawahneh for the continued operation of Goodtimes Pub. Although Stark County, Case No. 2011CA00097 8 Goodtimes Pub is named in this lawsuit, it is only alleged to be an obligor in Count I involving the first promissory note. {¶ 33} The same transaction test fails sub judice. There is no unanimity of interest, and the 2009 lawsuit was for specific performance of an option on a lease. Counts II and III in this case claim money owed to appellant Eddie Hmeidan, an unnamed party in the 2009 case. {¶ 34} We therefore conclude the trial court did not err as to Count I of appellants' complaint. In our de novo review of Counts II and III that were not addressed in the trial court's judgment entry, we find they are not barred under Civ.R. 13(A). {¶ 35} The sole assignment of error is granted in part as to Counts II and III. The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed in part, and reversed in part. By Farmer, J. Hoffman, P.J., and Edwards, J., concur. _s/ Sheila G. Farmer_____________ _s/ William B. Hoffman _________ s/ Julie A. Edwards____________ JUDGES [Cite as Hmeidan v. Rawahneh, 2011-Ohio-6149.] IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT EDDIE HMEIDAN ET. AL.., Plaintiffs-Appellants, v. ZAID RAWAHNEH ET. AL., Defendants-Appellees. : : : : : : : : : JUDGMENT ENTRY CASE NO. 2011CA00097 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed in part and reversed in part, and the matter is remanded to said court for further proceedings consistent with this opinion. Costs to be divided equally between the parties. _s/ Sheila G. Farmer_____________ _s/ William B. Hoffman _________ s/ Julie A. Edwards____________ JUDGES

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