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The Huntington National Bank v. Bywood, Inc.

Court of Appeals of Ohio, Tenth District

May 16, 2017

The Huntington National Bank, Plaintiff-Appellee,
v.
Bywood, Inc., Defendant-Appellee, Ashraf Ettayem, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 12CV-1129

         On brief:

          Thomas R. Merry and Beth M. Miller, for plaintiff-appellee.

          Ashraf A. Ettayem, pro se.

         Argued:

          Beth M. Miller.

          Ashraf Ettayem.

         NUNC PRO TUNC [1]

          DECISION

          KLATT, J.

         {¶ 1} Defendant-appellant, Ashraf Ettayem, appeals a judgment of the Franklin County Court of Common Pleas that aided plaintiff-appellee, The Huntington National Bank ("Huntington"), in the execution of a judgment against Ettayem. Ettayem also challenges the trial court's ruling that he admitted the matters contained within Huntington's requests for admissions when he failed to timely respond to those requests. For the following reasons, we affirm in part and reverse in part the judgment aiding in the execution of a prior judgment. Because the trial court lacked the jurisdiction necessary to enter the judgment deeming the discovery requests admitted, we conclude that that judgment is void and a nullity.

         {¶ 2} On January 27, 2012, Huntington filed suit against Bywood, Inc. and Ettayem. In its complaint, Huntington alleged that it had extended to Bywood a business credit line loan and a business overdraft protection loan, and that Bywood had breached the terms of the contracts governing those loans. Additionally, Huntington alleged that Ettayem had executed and delivered to Huntington a guaranty covering both loans. Huntington sought judgment against Bywood and Ettayem for the amounts due on both loans.

         {¶ 3} Ultimately, the trial court granted Huntington summary judgment on its claims. In a judgment dated November 20, 2012, the trial court awarded Huntington damages in the amount of $56, 537.96, plus interest, late fees, and charges. Bywood and Huntington appealed the November 30, 2012 judgment to this court, and we affirmed it. Huntington Natl. Bank v. Bywood, Inc., 10th Dist. No. 12AP-994, 2013-Ohio-2780, ¶ 1, 11.

         {¶ 4} Huntington conducted debtor examinations of Ettayem on March 14, 2014 and May 1, 2015. During those examinations, Ettayem testified regarding The Limited Investment Group Corp. ("Limited"), a business that Ettayem incorporated in 2003. Ettayem explained that he served as Limited's president and chief executive officer. Limited employed no other officers and had no directors.

         {¶ 5} According to Ettayem, he owned 100 percent of the stock that Limited issued. Although a stock certificate for Ettayem's Limited shares existed, Ettayem did not have physical possession of it. To Ettayem's knowledge, the stock certificate was located in the business office of a commercial building that Limited had previously owned on Central Avenue. However, that building had been sold in July 2012 by a receiver appointed by the Franklin County Court of Common Pleas. Prior to the sale, the receiver had inspected the Central Avenue building's business office, but he did not find any Limited stock certificates.

         {¶ 6} Huntington used the information it had collected regarding Ettayem's ownership of Limited stock to file an ex parte motion in aid of execution of its November 20, 2012 judgment. Specifically, Huntington moved the trial court to (1) prohibit Ettayem from transferring, selling, or pledging his shares of stock in Limited and (2) issue a replacement stock certificate for Ettayem's Limited shares and turn that certificate over to the Franklin County Sheriff for levy and sale. The trial court granted Huntington's motion in a judgment entered April 8, 2016.

         {¶ 7} When Huntington sought the trial court's aid in execution of its judgment, Huntington raised with the trial court the parties' ongoing controversy over discovery. In December 2016, Huntington served upon Ettayem interrogatories, requests for admission, and requests for the production of documents. Ettayem objected to the discovery requests and moved to strike them. The trial court denied Ettayem's objections and motion to strike in an entry dated February 11, 2016. Ettayem appealed that denial by filing a timely notice of appeal. Despite the pendency of the appeal, Huntington asked the trial court to enter ...


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