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Westlake Associates LLC v. C Supermarket

Court of Appeals of Ohio, Ninth District, Lorain

June 25, 2018

WESTLAKE ASSOCIATES LLC Appellee
v.
C SUPERMARKET Appellants

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 13-CV-180782

          PATRICK DICHIRO, Attorney at Law, for Appellants.

          THOMAS M. HORWITZ, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          SCHAFER, Presiding Judge.

         {¶1} Defendants-Appellants, Brar Brothers Enterprises LLC and Gurcharan Brar (collectively "Brar"), appeal the judgment of the Lorain County Court of Common Pleas entering judgment in favor of Plaintiff-Appellee, Westlake Associates, LLC ("Westlake"). We affirm.

         I.

         {¶1} Brar was the owner of a food market known as C Supermarket in Elyria, Ohio that it wished to sell. On or about January 25, 2012, Brar entered into a "Business Broker Finder's Fee Agreement" with Westlake to facilitate the sale of the business. Mahesh Inukurthi signed the broker agreement as President of Westlake.

         {¶2} Per the broker agreement, Westlake was to identify and introduce to Brar potential purchasers of C Supermarket. The broker agreement further stated that Brar was to compensate Westlake by commission in the event that Brar successfully closed on the sale of C Supermarket with a purchaser identified and introduced by Westlake. The broker agreement contained a non-circumvention clause that entitled Westlake to commission if, after the expiration of the one-year term of the agreement, Brar closed on the sale of C Supermarket with a purchaser initially identified or introduced by Westlake during the term of the agreement. The rate of commission was stated as a $25, 000.00 minimum plus any amount over a $345, 000.00 purchase price.

         {¶3} During the one year term of the broker agreement, Mr. Inukarthi, on behalf of Westlake, introduced three prospective purchasers to Brar. He introduced Samir Patel as a prospective purchaser sometime in February or March of 2012. Mr. Inukarthi and Mr. Patel both testified that Mr. Patel did not know Mr. Brar prior to this introduction. Mr. Brar testified, to the contrary, that he knew Mr. Patel before Mr. Inukarthi introduced them.

         {¶4} Mr. Patel began to discuss potential sale terms with Brar. However, the negotiations were slow and Mr. Patel did not purchase the business until April of 2013. Per the Agreement of Purchase and Sale of Assets and Management Agreement of April 3, 2013, Brar sold C Supermarket to Kanudo Inc. for $157, 000.00. Mr. Patel signed these agreements as "President" of Kanudo Inc. They eventually closed on the sale, and Mr. Patel commenced operation of C Supermarket.

         {¶5} Upon learning of the sale to Mr. Patel, which occurred after the expiration of the broker agreement, Westlake sought to invoke the non-circumvention clause and recover a $25, 000.00 commission from Brar under the broker agreement. Brar agreed that Westlake was entitled to commission in an amount much less than $25, 000.00, and argued that the broker agreement was rendered void when the parties entered a subsequent broker agreement wherein Westlake agreed to accept lower commission. On July 1, 2013, Westlake filed the current action against Brar alleging claims for receivership, breach of contract, promissory estoppel, unjust enrichment, and declaratory judgment[1].

         {¶6} The matter proceeded to a bench trial on September 25, 2014, which concluded that same day. Mr. Inukarthi testified at trial. In lieu of live testimony, the trial court admitted the deposition transcripts of Mr. Brar and Mr. Patel. Westlake objected to the admission of Brar's purported copy of the contested second broker agreement into evidence. The trial judge indicated that he would need to review the testimony in the deposition transcript of Mr. Brar before making his decision as to the admissibility of the second agreement. Taking the matter under advisement, the trial judge indicated that he would complete his review of the deposition transcript, evidence, and notes and he anticipated issuing a ruling as soon as the following day.

         {¶7} A period of thirty-two months passed before the trial court issued its decision on May 12, 2017. In the May 12, 2017 journal entry, the trial court found that Westlake established by a preponderance of evidence that Brar breached the broker agreement executed in January of 2012. The trial court further found that the evidence did not support Brar's claim that a second broker agreement was executed by both parties. Accordingly, the court granted Westlake judgment on its complaint in the amount of $25, 000.00. Brar filed a timely appeal of this matter raising two assignments of error for our review.

         II.

         Assignment of Error I

         The trial court erred by delaying the decision in the case for thirty-two (32) months whereby said delay caused prejudice to [Brar] because the delay caused the trial court to become unfamiliar with the case and forget ...


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