Court of Appeals of Ohio, Eighth District, Cuyahoga
BESWICK GROUP NORTH AMERICA, L.L.C., ET AL. PLAINTIFFS-APPELLANTS
WESTERN RESERVE REALTY, L.L.C., ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Joseph A. Pfundstein.
ATTORNEYS FOR APPELLEES David M. Dvorin Lieberman, Dvorin
& Dowd, L.L.C. Cynthia A. Lammert Coakley & Lammert
Prominent Title Agency, L.L.C. Christopher P. Finney Finney
Law Firm, L.L.C.
BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and S.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
Appellant, the Beswick Group North America, L.L.C.
("BGNA"), appeals the grant of summary judgment in
favor of appellees, Western Reserve Realty, L.L.C, d.b.a.
Re/Max Traditions ("Re/Max"), David Reimer, and
Diane Armington, where the court determined that appellees
were entitled to commissions for the sale of commercial
property. BGNA argues there are unresolved material issues of
fact that preclude summary judgment. After a thorough review
of the record and law, this court affirms.
Factual and Procedural History
BGNA entered into two exclusive rights contracts with Re/Max
to market two adjoining commercial properties owned by BGNA
for sale or lease. The contracts were signed October 30,
2013. The contract terms were for six months, with provisions
that extended Re/Max's right to a six percent sales
commission for six months for any contract for sale that was
formed where the buyer was shown the property by Re/Max or
another agent during the initial contract term. Re/Max,
through its agents showed the properties and an offer was
made, and according to Re/Max, accepted by BGNA. However, the
closing date did not occur until November 12, 2014. BGNA
disputed that it owed Re/Max any commission on the sale.
Re/Max filed notice with the escrow company employed for the
sale and approximately $42, 000 was held by the company and
later deposited with the court. Re/Max also filed
broker's liens on the properties. The closing for the
property went forward and the property was transferred to a
BGNA filed suit against Re/Max, and two of its employees,
Reimer and Armington, on April 24, 2015. BGNA claimed that
appellees violated the exclusive rights contracts for the
sale or lease of the two commercial properties. BGNA also
asserted that appellees failed to properly furnish
information and market the properties such that at least one
missed closing occurred, and that appellees fraudulently
filed liens against the properties when they were sold by
another real estate broker after the exclusive rights
Appellees filed an answer and counterclaim as well as a
third-party complaint against Thomas Beswick, managing member
of BGNA, individually. The escrow company was also named as a
defendant, but it deposited the funds held by it with the
court and was dismissed. Discovery proceeded, but BGNA and
Beswick failed to respond to requests for admissions and
other discovery requests.
After this failure to respond, appellees filed a motion for
summary judgment on January 28, 2015. After no response was
filed by BGNA or Beswick, the court granted the motion in
March 2016. Appellant then filed a motion for relief from
judgment. Appellees filed motions for prejudgment interest,
release of deposited funds, punitive damages, and attorney
fees. However, BGNA filed a notice of appeal before these
motions were addressed. After the notice was filed, the trial
court ruled on the various motions, but later vacated the
rulings based on a lack of jurisdiction.
This court remanded the case for the limited purposes of
ruling on the pending motions and determining the validity of
the liens. The trial court granted appellees' motion for
prejudgment interest and for the release of funds, but
otherwise denied the motions. The trial court's entry can
be read to find in favor of Re/Max in the amount of $28, 500.
After allowing additional briefing, BGNA now assigns the
following error for review:
I. The trial court abused its discretion in denying
[BGNA's] motion to vacate judgment as there clearly was a
showing of excusable neglect in the motion.
II. The trial court erred in granting [appellees'] motion
for summary judgment as even with the evidence construed as
it was by the trial court, [appellees'] claim for a
commission failed as a matter of law.
III. The trial court erred in dismissing count two of
[appellant's] complaint as the trial court never
addressed the validity of the brokers [sic] lien filed by
[appellees] which to date has not been released by
[appellees] despite required to under Ohio Revised Code
Law and Analysis
Relief From Judgment
BGNA first argues that the trial court should have granted
its motion for relief from judgment. Civ.R. 60(B) provides an
avenue for relief from a final judgment when the moving party
shows that it has satisfied the requirement of the rule. To
prevail, the movant must demonstrate that: "(1) the
party has a meritorious defense or claim to present if the
relief is granted; (2) the party is entitled to relief under
one of the grounds stated in Civ.R. 60(B)(1)-(5); and (3) the
motion is made within a reasonable time * * *." GTE
Automatic Elec, Inc. v. ARC Industries, Inc., 47 Ohio
St.2d 146, 150, 351 N.E.2d 113 (1976). If the movant fails to
satisfy any of these requirements, it is not an abuse of the
court's discretion to overrule the ...