Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
APPELLANT Robert J. Berryhill, pro se
ATTORNEYS FOR APPELLEES Mary Berryhill, pro se, Michael C.
O'Malley Cuyahoga County Prosecutor Mary M. Frey
Assistant County Prosecutor, Robert B. Weltman Weltman
Weinberg & Reis Co., L.P.A., Tracy K. Stratford, James R.
Wooley, Katie M. Mcvoy, Jones Day, Jennifer Armstrong, R.
Jeffrey Pollock, John R. Climac
BEFORE: Laster Mays, J., Keough, P.J., and Jones, J.
JOURNAL ENTRY AND OPINION
LASTER MAYS, J.
Counterclaim defendant-appellant, Robert J. Berryhill,
appeals the trial court's denial of his motion to reopen
judgment under Civ.R. 60(B). We affirm.
Background and Facts
According to appellant,
[T]he case arises from a dispute between partners over a
long-standing real estate partnership that was absent a
partnership agreement. The parties conducted themselves under
an oral agreement or understanding for over an eleven year
period, which resulted in the creation in excess of $300
million dollars in equity as a direct result of
[appellant's] relationships, knowledge and experience.
brief, p. 1.
The partnership referenced was between appellant and
defendants-appellees Rustom Khouri ("R. Khouri")
and R. Khouri's wife Mary Khouri ("M. Khouri and
collectively referred to as the "Khouris") as the
owners of defendant Carnegie Management and Development
Corporation ("Carnegie"), a commercial real estate
development company. According to the independent contractor
employment agreement governing the parties' relationship,
appellant was hired to serve as Carnegie's senior
vice-president. The executive compensation package included a
10 percent ownership interest in the limited liability
companies formed to hold each development project that
appellant secured and implemented.
Appellant was terminated in 2009 for illegally receiving
funds from one of the company's projects. In 2010,
appellant's wife Mary Berryhill ("M.
Berryhill") sued the Khouris, Carnegie, and the limited
liability companies, claiming entitlement to the 10 percent
profit distributions from the development deals created by
appellant. M. Berryhill v. Khouri, Cuyahoga C.P. No.
CV-10-721073 (Mar. 12, 2010). The case was assigned to the
The Khouris admitted that M. Berryhill was entitled to the
ownership interests but countered with several claims
including that appellant had been embezzling funds from
development projects. Appellees also asserted affirmative
defense and counterclaim that M. Berryhill assisted
appellant's fraud by allowing the limited liability
distributions to be placed in her name.
On December 21, 2011, the trial court granted partial summary
judgment for the Khouris barring recovery by M. Berryhill of
distributions for ownership interests earned after August 6,
2008, when the embezzlement began. The Khouris later filed a
second motion for partial summary judgment arguing that they
learned of appellant's false credentials during discovery
and would not have hired him if they had known.
The parties settled the case on December 21, 2012. On March
13, 2013, the Khouris filed to vacate the settlement and for
attorney fees on the ground that appellant and M. Berryhill
misrepresented their assets and ability to satisfy a
judgment. M. Berryhill, Cuyahoga C.P. No.
CV-10-721073, ¶ 9 (Mar. 12, 2010). The appellant and M.
Berryhill withdrew their initial opposition, and the trial
court vacated the settlement. Discovery was reopened, and
trial was scheduled.
On May 8, 2013, the trial court granted the second motion for
partial summary judgment finding that: (1) appellant
fraudulently induced appellees into entering the employment
contract by lying about his education and credentials; (2)
the misrepresentation was material and appellees relied on it
in entering into the employment contract and in including the
information in development project materials; (3) the
contract is void and M. Berryhill lacks any interest in the
limited liability companies; (4) M. Berryhill's claims
were barred and dismissed with prejudice; (5) appellant owed
$219, 796.45 for funds embezzled from one of the projects;
and (6) an evidentiary hearing would be held for attorney
fees and costs. On May 29, 2013, the trial court awarded
$693, 631.50 for attorney fees and $33, 170.47 for costs.
In Berryhill v. Khouri, 8th Dist. Cuyahoga No.
100173, 2014-Ohio-5041, ¶ 3 ("Berryhill I
"),  this court affirmed the trial court's
grant of summary judgment. Id. at ¶ 20. This
court also concluded "that the trial court did not abuse
its discretion in rendering the attorney fees award and the
award of costs." Id. at ¶ 31.
Defendants-appellees' motion for partial summary judgment
was filed on November 25, 2014. It reiterated as undisputed
facts, the importance of credentials to the position for
which appellant was hired, and stated the amounts appellant
received in salary, health benefits, expense reimbursements,