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Berryhill v. Khouri

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 3, 2018

RUSTOM R. KHOURI, ET AL. DEFENDANTS-APPELLEES [Appeal by Robert Berryhill, Counterclaim Defendant-Appellant]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-10-721073

          FOR 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.



         {¶1} 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.

         I. Background and Facts

         {¶2} 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.

         Appellant's brief, p. 1.

         {¶3} 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.

         {¶4} 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 commercial docket.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} In Berryhill v. Khouri, 8th Dist. Cuyahoga No. 100173, 2014-Ohio-5041, ¶ 3 ("Berryhill I "), [1] 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.

         {¶10} 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, ...

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