Alan Tinnes v. Immobilaire Iv, Ltd.

• Decision Date: 13 February 2001
• Docket Number: 00AP-87,01-LW-0605
• Parties: Alan Tinnes et al., Plaintiffs v. Immobilaire IV, Ltd. et al., Defendants/Third-Party Plaintiffs-Appellants v. Christy S. Jerles et al., Third-Party Defendants-Appellees
• Court: Ohio Court of Appeals

Alan Tinnes et al., Plaintiffs v. Immobilaire IV, Ltd. et al., Defendants/Third-Party Plaintiffs-Appellants v. Christy S. Jerles et al., Third-Party Defendants-Appellees

No. 00AP-87

01-LW-0605 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

February 13, 2001

APPEAL from the Franklin County Court of Common Pleas.

Jeffrey C. Pettys, for appellants.

Law Offices of John F. Berry, and John F. Berry, for appellees.

OPINION

McCORMAC J.

Defendants/third-party plaintiffs-appellants, Immobilaire IV Ltd. ("Immobilaire IV"), David Davis, and Michael Davis, appeal from a judgment of the Franklin County Court of Common Pleas granting the summary judgment motion of third-party defendants-appellees, Christy Jerles, and the estate of Robert Jerles.

The facts giving rise to this appeal are somewhat lengthy. In 1996, Christy Jerles and her husband, Robert Jerles, now deceased (hereinafter, collectively the "Jerles") owned a parcel of improved real estate located at 6150 Sunbury Road in Westerville, Ohio. The improvements on the Sunbury Road property consisted of a building, which was subdivided into two separate businesses. The larger portion of the building had for several years been operated as a restaurant and sports bar, which included a second floor tavern and an outdoor patio. The smaller portion of the building was leased to Westerville Beverage, Inc, wherein Westerville Beverage, and subsequently Westerville Beverage's assignee, Alan Tinnes, operated a deli/carryout known as the Wine & Cheese Emporium, Ltd.

In May 1996, Immobilaire III, Inc. ("Immobilaire III"), a corporation organized and controlled by brothers David Davis and Michael Davis (hereinafter, collectively the "Davis brothers"), entered into a lease with the Jerles for the restaurant and sports bar portion of the Sunbury Road property. In November 1996, following an extensive remodeling project, the restaurant and bar reopened and began operating as Rush Creek Sports Bar & Grill II.

Thereafter, the Davis brothers decided to exercise an option in their lease, which gave them or a corporation controlled by them, the right to purchase the Sunbury Road property for $2,095,000. On May 22, 1997, a closing was held, whereby Immobilaire IV, a holding company created and controlled by the Davis brothers, purchased the Sunbury Road property. Financing for Immobilaire IV's purchase consisted of a $1,050,000 loan from National City Bank, and a $1,045,000 promissory note payable to the Jerles (hereinafter "note 1"). In addition to note 1, the Davis brothers also executed two additional promissory notes payable to the Jerles: a $50,000 promissory note ("note 2") to cover some incidental costs connected with the Davis brothers' remodeling of the bar and restaurant which the Jerles had paid, and a $23,000 promissory note ("note 3") to cover back rent owed by Immobilaire III under its lease of the bar and restaurant space. The brothers also executed a separate "Guaranty Agreement," by which they and Immobilaire III guaranteed the payment of notes 1 and 2.

On July 22, 1997, Immobilaire IV served Tinnes with notice to vacate the deli/carryout premises based on Westerville Beverage's breaches of its lease; the lease having been assigned to Immobilaire IV as part of its purchase of the subject property. Tinnes responded to the notice to vacate by filing a quiet title action on August_20, 1997. On February 28, 1998, Robert Jerles died. On March 31, 1998, the trial court issued a decision granting summary judgment for Tinnes on the grounds that the Jerles had waived or consented to all of Westerville Beverage's breaches of its lease.

On May 22, 1998, the Davis brothers and Immobilaire IV (hereinafter collectively "appellants"), with leave of court, filed a third-party complaint against Christy Jerles and the estate of Robert Jerles (hereinafter, collectively "appellees"), alleging appellees had fraudulently induced appellants into purchasing the Sunbury Road property. The crux of appellants' fraud allegations is that first during the negotiations, which proceeded Immobilaire III's lease of the restaurant and bar premises, then during the negotiations which proceeded appellants' purchase of the Sunbury Road property, appellees misrepresented that Westerville Beverage was in default on its lease for the deli/carryout space, and that if appellants purchased the subject property, they would be able to evict Westerville Beverage and its assignee, Tinnes, and operate the deli/carryout themselves at a considerable profit. Specifically, appellants allege that appellees, on several occasions prior to their purchase of the property orally misrepresented that Westerville Beverage and then Tinnes were subject to eviction from the Sunbury Road property due to Westerville Beverage having failed to timely pay its pro rata share of utilities and real estate taxes as required by its lease, and having assigned its lease to Tinnes without appellees approval, in violation of the lease. Appellants also point to an estoppel certificate executed by Christy Jerles on May 20, 1997, in connection with appellants' purchase of the Sunbury Road property, which provides that: "*** [Westerville Beverage] is currently past due with respect to payment of its agreed upon share of utilities and real estates [sic] taxes. In addition, the tenant has violated certain covenants in the Lease Agreement relating to assignment of the Lease."

According to appellants, their plan for repaying the debt incurred in purchasing the Sunbury Road property was dependent upon the profits from the operation of the deli/carryout, and that but for appellees' misrepresentations regarding appellants' ability to evict Westerville Beverage and Tinnes, they would not have agreed to purchase the property for $2,095,000.

By September 1, 1998, appellants were in default on the three promissory notes. Therefore, on November 16, 1998, appellees filed a counterclaim against appellants seeking judgments on the three promissory notes. On December 18, 1998, appellants filed a motion to dismiss appellees' counterclaim in which they raised their allegations of fraud as a defense to enforcement of the promissory notes. On January 29, 1999, the trial court issued a decision converting appellants' motion to dismiss into a motion for summary judgment.

On March 16, 1999, the trial court issued an entry which set April 16, 1999, as the final day for filing all motions for summary judgment and evidence in support thereof, and May 7, 1999, as the final day for submitting memorandum and evidence in opposition to all motions for summary judgment.

On April 16, 1999, appellees filed two motions for summary judgment: one seeking a judgment on their own counterclaims for judgment on the three promissory notes, and one seeking judgment on appellants' fraud claims.

On November 19, 1999, the trial court issued a decision denying appellants' motion for summary judgment and granting both of appellees' motions for summary judgment. The trial court filed an entry journalizing this decision on December 22, 1999.

On January 18, 2000, appellants filed a motion in the trial court pursuant to Civ.R. 60(B)(2) and (3) seeking relief from the judgment denying their motion for summary judgment and granting appellees' motions for summary judgment.

On January 19, 2000, appellants filed a notice of appeal from the trial court's judgment. In their appeal, appellants have assigned the following errors:

I. WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE APPELLANTS/THIRD-PARTY PLAINTIFFS RELIEF FROM JUDGMENT PURSUANT TO RULES 60(B)(2) AND 60(B)(3) OF THE OHIO RULES OF CIVIL PROCEDURE UPON DISCOVERY THAT THE THIRD-PARTY DEFENDANTS MISLEAD THE COURT THROUGH THE USE OF NON-EXISTENT "EVIDENCE."

II. WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO CONSTRUE CONTROVERTED FACTS IN FAVOR OF THE NON-MOVANT IN RULING ON THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.

III. WHETHER THE TRIAL COURT ERRED WHEN IT RULED THAT A FRAUDULENTLY INDUCED CONTRACT WAS A VALID AND ENFOREABLE OBLIGATION.

IV. WHETHER THE TRIAL COURT ERRED WHEN IT RULED THAT A FRAUDULENTLY INDUCED COGNOVIT PROMISSORY NOTE IS ENFORCEABLE.

V. WHETHER THE TRIAL COURT ERRED WHEN IT RULED THAT THE DEADMAN'S STATUTE RENDERED INADMISSIBLE STATEMENTS MADE BY A PARTY WHO DECEASED DURING THE PENDENCY OF THE INSTANT LITIGATION.

VI. WHETHER THE TRIAL COURT ERRED WHEN IT RULED THAT THE THIRD-PARTY PLAINTIFFS LACKED THE NECESSARY PRIVITY TO ARGUE THAT THEY DETRIMENTALLY RELIED ON THE ESTOPPEL CERTIFICATE AND THEREFORE COULD NOT RELY ON IT AS A WRITTEN DECEIT TO INDUCE THEM TO ENTER INTO THE TRANSACTION.

VII. WHETHER THE TRIAL COURT ERRED WHEN IT RULED INADMISSIBLE PAROL EVIDENCE OF PRIOR ORAL REPRESENTATIONS OF THE THIRD-PARTY DEFENDANTS WHICH INDUCED THE THIRD-PARTY PLAINTIFFS TO ENTER INTO A SERIES OF WRITTEN CONTRACTS.

VIII. WHETHER THE TRIAL COURT ERRED IN BARRING CONSIDERATION OF PAROL EVIDENCE THROUGH THE ENFORCEMENT OF AN INTEGRATION PROVISION IN A FRAUDULENTLY INDUCED CONTRACT.

IX. WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THIRD-PARTY PLAINTIFFS' CIV. R. 60(B)(5) RELIEF FROM JUDGMENT ON THE GROUND THAT SUMMARY JUDGMENT IN FAVOR OF THE THIRD-PARTY DEFENDANTS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

Appellants' first and ninth assignments of error both challenge the trial court's failure to grant appellants' Civ.R. 60(B) motion for relief from judgment and will therefore be addressed together.

The record reveals that the trial court has never ruled on appellants' Civ.R. 60(B) motion. Accordingly, there is no final appealable order pertaining to appellants' Civ.R. 60(B) motion for this court to review.

Appellants' first and ninth assignments of error are overruled.

We now turn...