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Beswick Group North America, L.L.C. v. Western Reserve Realty, L.L.C.

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 18, 2017


         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-844723

          ATTORNEY FOR APPELLANT Joseph A. Pfundstein.

          ATTORNEYS FOR APPELLEES David M. Dvorin Lieberman, Dvorin & Dowd, L.L.C. Cynthia A. Lammert Coakley & Lammert Co., L.P.A.

          For 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. Gallagher, J.


          FRANK D. CELEBREZZE, JR., J.

         {¶1} 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.

         I. Factual and Procedural History

         {¶2} 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 new owner.

         {¶3} 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 contracts ended.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 Section 1311.92.

         II. Law and Analysis

         A. Relief From Judgment

         {¶7} 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 ...

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