Sylvania Sav. Bank Co. v. Sunburst Car Care Centers, Inc.
| Citation | 12 OBR 403,467 N.E.2d 263,12 Ohio App.3d 97 |
| Parties | , 12 O.B.R. 403 SYLVANIA SAVINGS BANK CO., Appellee, v. SUNBURST CAR CARE CENTERS, INC. et al., Appellants. |
| Decision Date | 08 July 1983 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court
Where a defendant made a motion to dismiss at the conclusion of plaintiff's case, it had the option of standing on its exception to the overruling of the motion by the trial court or proceeding with its defense. If a defendant in such a position proceeds with a defense, introducing evidence on its own behalf, the defendant waives its right to rely on its original motion.
Norman E. Bischoff, Sylvania, for appellee.
Byron S. Choka, Louis J. Hattner and Thomas G. Zraik, Toledo, for appellants.
This matter comes to this court on appeal from judgment of the Court of Common Pleas of Lucas County, Ohio. Said court rendered final judgment against appellants on two notes, granted foreclosure on a real estate mortgage and ordered certain real estate sold. From that judgment appellants appeal, urging three assignments of error:
Hyman R. Swolsky, Martha M. Swolsky, Dan Tonkel and Selma Tonkel were partners in an Ohio partnership known as Tonkel Swolsky Enterprises (hereinafter "partnership"). Partnership owned a parcel of real estate upon which Charles Leslie, Jr. and Marilyn Leslie (hereinafter "Leslies") sought to build a car wash to be operated through the Leslies' corporation, Sunburst Car Care Centers, Inc. (hereinafter "corporation"). Partnership and Leslies are appellants herein. On June 22, 1978, partnership entered into a lease agreement with corporation for the lease of the parcel of real estate owned by partnership. On this same date (June 22, 1978), Leslies personally executed and delivered to appellee, Sylvania Savings Bank Co. (hereinafter "appellee"), one promissory note in the amount of $90,000 and, on November 21, 1979, another note in the amount of $26,717.28. Corporation was a co-maker on each note. As security for the $90,000 note the appellee required partnership (Swolskys and Tonkels) to execute and deliver to appellee a mortgage on the parcel of real estate owned by partnership. It is this mortgage that appellee seeks to foreclose.
As part of the entire transaction, appellee required that the lease agreement between partnership and corporation be assigned to appellee, and this was done on the same date (June 22, 1978), as the lease was signed and the transaction closed. In consideration of partnership giving the mortgage to appellee, partnership required that partnership be given notice by appellee of any default in payment by Leslies and corporation on the $90,000 note and, further, that partnership be given sixty days to cure any such default. The obvious reason for this was to enable partnership to protect its interest in the real property. Appellee agreed to this condition and, again, on the June 22 date, issued a letter to partnership confirming the understanding. This letter was addressed to partnership in care of one Joe Swolsky at 1806 Madison-Suite # 306, Toledo, Ohio.
Subsequently (and it is impossible from the record to tell exactly when, as no evidence was presented by appellee as to the precise date of default, nor does appellee's complaint allege such specific date), default apparently occurred, and on June 26, 1981, appellee filed its complaint for judgment on both notes and foreclosure of the mortgage. Corporation presented no defense. Leslies filed an answer denying default and denying personal liability, but presented no defense at trial. Partnership answered alleging that no notification of any default was sent to partnership in accordance with, and as required by, the agreement between appellee and partnership. At trial, partnership defended on this ground and all of the documents pertinent to the transaction were admitted into evidence. The court has thoroughly reviewed those documents and the entire transcript of proceedings and finds, therein, the information necessary to determine this appeal.
Partnership's Exhibit B is the lease agreement between partnership and corporation. That document, in its first paragraph, says:
"THIS LEASE was made and entered into this 22 day of June, 1978, by and between the TONKEL SWOLSKY ENTERPRISES, an Ohio Partnerhsip [sic ], the address of which is 2350 Woodville road, Oregon, Ohio 43616 ('Landlord'), and SUNBURST CAR CARE CENTER, INC., who [sic ] address is 5700 Southwyck Blvd., Toledo, Ohio ('Tenant')."
Article twenty-four of the agreement says:
Partnership's Exhibit C is the assignment of the lease agreement to appellee and says, in part, the following:
" * * * and TONKEL SWOLSKY ENTERPRISES, an Ohio Partnership whose address is 2350 Woodville Road, Oregon, Ohio 43616 as Lessor, * * *."
Both of these documents were in the possession of appellee on June 22, 1978, when appellee issued, under the same date, the following letter:
(Emphasis added.)
This letter was in accordance with the agreement between appellee and partnership and, further, in recognition of Article Eleven, Section 9, of the lease agreement (of which appellee was assignee and in possession of at the time of closing) which provided, in part, as follows:
"Loan documents shall provide that in the event of Tenants [sic ] default in the performance of any of the obligations denoted in such Loan documents, notice of such default shall be given by the holder of the Mortgage to Landlord and, without the requirement for the payment of penalty or the acceleration of payments, Landlord shall have not less than sixty (60) days after receipt of such notice to commence to remedy such default. * * * "
Thus it is clear from the face of the documents that partnership was entitled to notice of any default and that notice was to be given, as provided for in the documents and confirmed by appellee's letter, to partnership at a specific address.
Partnership (and Leslies by adoption), in their first assignment of error, contend that appellee, in its case in chief, presented no direct evidence as to any default and no evidence of notice of any default being given to partnership, as required by the parties' agreement. While appellee presented an official of the bank and has admitted into evidence the notes, mortgage, security agreement and financing statement involved in the transaction, there was no evidence presented (except maybe by innuendo) that any notice was given or that the notes were in default. Thus, partnership was quite right in making its motion to dismiss and that motion should have been granted by the trial court as appellee had failed, at that point, to prove two essential elements of its case, to wit: actual default and the sending of notice as required by agreement. Judgments supported by some competent, credible evidence going to all the essential elements of the case will...
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