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Sourial v. Nationwide Mutual Insurance Co.

Court of Appeals of Ohio, Tenth District

June 28, 2018

Samir Sourial, Plaintiff-Appellant,
v.
Nationwide Mutual Insurance Company, Defendant-Appellee.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CVH-6024

         On brief:

          Caryn Groedel & Associates, Co., LPA, Matthew S. Grimsley, and Caryn M. Groedel, for appellant.

          Bricker & Eckler LLP, Quintin F. Lindsmith, and Ali I. Haque, for appellee.

         Argued:

          Matthew S. Grimsley.

          Ali I. Haque.

          DECISION

          SADLER, J.

         {¶ 1} Plaintiff-appellant, Samir Sourial, appeals from a judgment of the Franklin County Court of Common Pleas in favor of defendant-appellee, Nationwide Mutual Insurance Company ("Nationwide"). For the reasons that follow, we affirm.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} In June 2008, Sourial was employed as an insurance agent for AAA Insurance when he was approached by Nationwide with an opportunity to join one of its agency programs. Sourial met with Nationwide Sales Manager Brad Bohn who encouraged Sourial to participate in Nationwide's Agency Capital Builder ("ACB") program, where he would receive training necessary for him to successfully operate a Nationwide Insurance Agency. According to Sourial, Bohn told him that when he successfully completed the ACB program, Nationwide would sell him an established book of business which would generate approximately $350, 000 per year in revenue. Sourial left his position with AAA to join Nationwide's ACB program.

         {¶ 3} Sourial consistently met the ACB program production requirements as measured by Direct Written Premium ("DWP"). Sourial eventually became one of the top producing employees in the ACB program for the region and the first to graduate the program. On his graduation, Nationwide paid Sourial compensation in the amount of $75, 000. Sourial intended to purchase a book of business and become a member of Nationwide's Replacement Agency Executive ("RAE") program. Sourial claims he repeatedly inquired of Bohn and his successor sales manager, Diana Graovac, about an available book of business to purchase. According to Sourial, Bohn falsely represented to him that no existing book of business was available for purchase and that Sourial would have to join the Account Executive ("AE") program, rather than the RAE program.

         {¶ 4} Sourial claims various Nationwide vice presidents and sales managers induced him to join the AE program by making false representations regarding his potential for success. In Sourial's affidavit filed in connection with his Civ.R. 56(F) motion, Sourial claims Nationwide management falsely represented the following:

[M]isrepresentations about the amount of money I would earn, that my pro forma and business plan were legitimate and accurate representations of what Nationwide expected my agency to earn, that Agency Executive Program agents easily meet their production requirements and complete the Program, that I would easily meet my Agency Executive Program production requirements, that if I acquired an existing book of business Nationwide would transfer me into the Replacement Agency Executive Program, that I would own my book of business and the books of business I acquired, and that if I ever left Nationwide, it would offer to purchase my book of business and the books of business I acquired.

(Aug. 30, 2017 Sourial Aff. at ¶ 7.)

         {¶ 5} Sourial executed the AE agreement in June 2010. Prior to signing the agreement, Sourial had spent several months reviewing the draft agreement as well as developing a pro forma business plan. The AE agreement required Sourial to meet a minimum production plan ("MPP"), as measured by DWP.[1] The AE agreement also contained the following provision:

It is agreed that no action, suit, proceeding at law or in equity shall be brought under this contract unless it is commenced and process is served within three years after the cause of action for which suit is brought.

(AE Agreement at ¶ 35.)

         {¶ 6} In addition to the contractual limitations period, the AE agreement contained an integration clause as follows: "The terms and conditions contained in this Agreement supersede all prior oral or written understandings between Agent and Nationwide and constitute the entire agreement between them concerning the subject matter of this Agreement." (AE Agreement at ¶ 38.)

         {¶ 7} On April 5, 2011, Sourial executed an amended AE agreement containing the following language: "By signing this Amendment, [Sourial] * * * waives all claims that he/she has or may have against Nationwide * * * as of the date of his/her execution of this Amendment." (Amendment to AE Agreement at 1.) The stated consideration for the release was an enhanced bonus schedule as set forth in the amendment.

         {¶ 8} On May 3, 2011, Sourial received a loan from Nationwide Bank, the proceeds of which Sourial used to purchase an existing book of business. According to Sourial, Graovac subsequently informed him the book of business he purchased was too small to allow him to transition into the RAE program, and the renewal DWP from the newly purchased book of business could not be counted towards his MPP for purposes of the AE program. Sourial claims he was falsely informed that there was not another existing book of business available for purchase.

         {¶ 9} In May 2012, Nationwide put Sourial on the production shortfall list because he had not met his MPP. According to Sourial, in the subsequent months, Nationwide transferred some of his existing book of business to another agent, which caused Sourial to fall further behind his MPP. Realizing his contract was subject to cancellation, on December 3, 2012, Sourial resigned his position with Nationwide. There is no dispute Nationwide subsequently made an early cancellation payment to Sourial of more than $130, 000. According to Sourial, however, Nationwide took over his existing book of business worth approximately $1, 300, 000.

         {¶ 10} On June 24, 2016, Sourial filed a complaint alleging the following claims for relief against Nationwide: fraudulent inducement in relation to the Career Builder Contract; fraudulent inducement in relation to the Executive Contract; intentional misrepresentation in relation to the Career Builder Contract and the Executive Contract; breach of the Career Builder Contract; breach of the Executive Contract; breach of the implied covenant of good faith and fair dealing; promissory estoppel; unjust enrichment; national origin based discrimination; and national origin based harassment.

         {¶ 11} On January 10, 2017, the trial court granted Nationwide's motion for judgment on the pleadings as to the claims for discrimination based on national origin and harassment. In so doing, the trial court noted in its decision that "in relation to all of [Sourial's] claims, except that for breach of the Executive Contract, Indiana substantive law shall apply. As to procedural law, Ohio law still applies to this matter." (Jan. 10, 2017 Decision at 3.) No appeal was taken from the trial court decision granting Nationwide's motion for judgment on the pleadings.

         {¶ 12} On June 19, 2017, Sourial filed a motion to compel discovery wherein Sourial sought, among other things, production of unredacted copies of the following documents: New Agent Program Scorecards; Production Shortfall Reports; Program Agent Management Reports; and Program Agent Production Status Reports. Sourial claimed the information in these documents provided evidentiary support for his fraud claims. On July 19, 2017, Sourial filed a motion to vacate the case schedule or, in the alternative, enlarge the case schedule 60 days from the date the trial court ruled on Sourial's motion to compel.

         {¶ 13} On July 28, 2017, Nationwide filed a motion for summary judgment as to Sourial's remaining claims. In support of the motion, Nationwide filed excerpts from the transcript of Sourial's deposition along with a large number of documents identified as exhibits therein.[2] On August 4, 2017, the trial court issued a decision denying Sourial's motion to compel and denying Sourial's motion to enlarge the case schedule. The trial court decision provides, in relevant part, as follows:

There is not much to say in regards to [Sourial's] motion. In it, [Sourial] asks the Court to issue an order compelling [Nationwide] to supplement numerous discovery responses. After reviewing this matter thoroughly, the Court is not inclined to grant [Sourial's] request. First, it is clear that [Nationwide] has rectified many of the issues that [Sourial] had since the filing of this motion. Second, [Sourial] has stated inadequate grounds upon which the Court would base an order compelling discovery. Since this is so, the Court finds [Sourial's] Motion to Compel to be not well-taken, and is hereby DENIED.

(Emphasis sic.) (Aug. 4, 2017 Decision at 1.)

         {¶ 14} On August 11, 2017, Sourial filed a combined motion to reconsider the trial court's August 4, 2017 decision denying Sourial's motion to compel and motion for an in camera inspection of the documents Nationwide had either refused to produce or redacted. On that same date, Sourial filed a Civ.R. 56(F) motion for a continuance to permit further discovery essential to Sourial's opposition to Nationwide's motion for summary judgment. Sourial did not, however, file a response to the motion for summary judgment.

         {¶ 15} On September 6, 2017, the trial court denied Sourial's Civ.R. 56(F) motion:

Once again [Sourial] asks the Court for more time due to a discovery dispute. In this motion, however, [Sourial] asks for more time due to a discovery dispute that [Sourial] previously lost. The Court is not going to grant [Sourial] any additional time to file a response to [Nationwide's] Motion for Summary Judgment. Due to the fact that [Sourial] has not filed a response to [Nationwide's] Motion for Summary Judgment within the time limit prescribed by rule, the Court will rule upon said motion sans response.

(Sept. 6, 2017 Decision at 2.)

         {¶ 16} On September 14, 2017, the trial court issued a decision and judgment entry granting Nationwide's motion for summary judgment as to Sourial's remaining claims. The trial court determined Sourial's claims for breach of contract were barred both by the contractual limitations period and the release. The trial court also determined the existence of a written agreement containing an integration clause and the release barred Sourial's quasi-contract claims for promissory estoppel and unjust enrichment. Finally, the trial court found the release barred Sourial's fraud claims. Accordingly, the trial court determined Nationwide was entitled to a judgment on these claims as a matter of law.

         {¶ 17} Sourial timely appealed to this court from the following trial court judgments: August 4, 2017 decision and entry denying Sourial's motion to compel and motion to vacate or enlarge the case schedule; September 6, 2017 decision and entry denying Sourial's motion for reconsideration, request for in camera inspection, and Civ.R. 56(F) motion; and the judgment entry issued September 14, 2017 granting Nationwide's motion for summary judgment.

         II. ASSIGNMENTS OF ERROR

         {¶ 18} Sourial sets forth the following eleven assignments of error:

[1.] The trial court erred and abused its discretion by denying Sourial's motion to compel in its entirety and effectively condoning Nationwide's impermissible redaction campaign.
[2.] The trial court abused its discretion by failing to compel Nationwide to un-redact and produce vital statistical data reflecting the failure rate of its AE Program agents.
[3.] The trial court erred by failing to compel Nationwide to Answer Interrogatory 1, which seeks the identity of person(s) responding to Interrogatories.
[4.] The trial court abused its discretion by failing to compel Nationwide to respond to Interrogatories seeking information pertaining to other program agents.
[5.] The trial court abused its discretion by failing to compel Nationwide to provide information pertaining to ...

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