Beswick Group N. Am., L.L.C. v. W. Res. Realty, L.L.C.

[Cite as Beswick Group N. Am., L.L.C. v. W. Res. Realty, L.L.C., 2017-Ohio-2853.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 104330

BESWICK GROUP NORTH
AMERICA, L.L.C., ET AL.
PLAINTIFFS-APPELLANTS

vs.

WESTERN RESERVE REALTY, L.L.C., ET AL.
DEFENDANTS-APPELLEES

JUDGMENT:
AFFIRMED

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

BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: May 18, 2017
ATTORNEY FOR APPELLANT

Joseph A. Pfundstein
P.O. Box 46449
Cleveland, Ohio 44146

ATTORNEYS FOR APPELLEES

David M. Dvorin
Lieberman, Dvorin & Dowd, L.L.C.
30195 Chagrin Boulevard, Suite 300
Pepper Pike, Ohio 44124

Cynthia A. Lammert
Coakley & Lammert Co., L.P.A.
1100 Superior Avenue, East, Suite 1314
Cleveland, Ohio 44114

Also Listed

For Prominent Title Agency, L.L.C.

Christopher P. Finney
Finney Law Firm, L.L.C.
4270 Ivy Pointe Boulevard, Suite 225
Cincinnati, Ohio 45245
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 motion. Id. An abuse of discretion is connoted by

a decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶8} Here, BGNA made the motion soon after the court entered judgment so

timing is not at issue. Therefore, BGNA had to show that it had a meritorious claim or

defense and that it satisfied at least one of the prerequisites under Civ.R. 60(B)(1)-(5).

BGNA argues that the judgment was entered against it as a result of excuseable neglect

under Civ.R. 60(B)(2). Its attorney asserted that he did see the electronic notification

that was sent when appellees filed their motion for summary judgment, and was unaware

it had been filed. However, this does not constitute excusable neglect. Garrett v. Gortz,

8th Dist. Cuyahoga No. 90625, 2008-Ohio-4369, ¶ 16 (“it was incumbent on him to check

the docket to keep informed of the progress of the case. The failure to * * * keep

informed of the progress of an ongoing case does not qualify as excusable neglect.”);

Roberts v. Roberson, 8th Dist. Cuyahoga No. 92141, 2009-Ohio-481, ¶ 19.

{¶9} The affidavit filed with BGNA’s motion does not raise a procedural

irregularity that would demonstrate excusable neglect as occurred in Am. Express Travel

Related Servs., Inc. v. Carleton, 10th Dist. Franklin No. 02AP-1400, 2003-Ohio-5950, ¶

15. There, the Tenth District found excusable neglect when a party failed to respond to a

motion for summary judgment that the party never received. Here, the affidavit of

BGNA’s attorney attests that the electronic notification that was sent must have gone to
his spam folder rather than his regular email inbox, so he never saw it. He averred that

the system was new, and that he would have responded had he seen the notification.

This would indicate that it was in fact delivered to him, but he did not take the necessary

steps to ensure prompt notification. That is more similar to this court’s Garrett case,

where a party was having ongoing mail service issues and did not take steps to keep

informed on the status of the case. Garrett at ¶ 16.

{¶10} Even if this did constitute some type of excusable neglect, BGNA does not

have a valid claim or defense. “A ‘meritorious defense’ means a defense ‘going to the

merits, substance, or essentials of the case.’” Wayne Mut. Ins. Co. v. Marlow, 2d Dist.

Montgomery No. 16882, 1998 Ohio App. LEXIS 2378 (June 5, 1998), citing Black’s Law

Dictionary, abridged, 290 (6th Ed.1991). BGNA, failed to respond to discovery

requests, and thus admitted all the essential elements of appellees’ breach of contract

claim. BGNA’s arguments to excusable neglect only involve its failure to file an

opposition to summary judgment. That is not the reason the trial court granted appellees’

motion. Appellees were able to show through BGNA’s admissions and their own

affidavits that BGNA breached the exclusive rights contracts and were owed a six percent

commission. BGNA’s claim that the closing occurred outside the six-month extension

period of the agreement is unavailing given its admissions as explained below.

Therefore, BGNA’s first assignment of error is overruled.

B. Summary Judgment
 {¶11} In its second assignment of error, BGNA argues that even though they failed

to respond to appellees’ motion for summary judgment, there are still material issues of

fact that prevent the court from determining that appellees are entitled to judgment.

{¶12} Summary judgment provides an abbreviated mechanism of resolving

disputes where there is no material issue to decide and one party is entitled to judgment as

a matter of law.

Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any material fact remains
to be litigated, (2) the moving party is entitled to judgment as a matter of
law, and (3) it appears from the evidence that reasonable minds can come to
but one conclusion, and viewing such evidence most strongly in favor of the
nonmoving party, that conclusion is adverse to the party against whom the
motion for summary judgment is made.

Camardo v. Reeder, 8th Dist. Cuyahoga No. 80443, 2002-Ohio-3099, ¶ 11. When a

motion for summary judgment is made and supported as provided in Civ.R. 56, “the

nonmoving party may not rest on the mere allegations of his pleading, but his response,

by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing

that there is a genuine triable issue.” Id. at ¶ 13. This court reviews a trial court’s

decision de novo — without deference — and conducts an independent review of the

matter.

{¶13} Here, the only evidence introduced to the trial court indicates that appellees

are entitled to judgment as a matter of law on BGNA’s claims against them and appellees’

claims against BGNA and Beswick. BGNA failed to submit any evidence to the trial

court supporting its position that there are material questions of fact. Therefore, we are
only guided by the affidavits submitted by Armington and Reimer, the admissions of

BGNA, and the pleadings.

{¶14} The affidavits establish that BGNA and Re/Max entered into exclusive

rights contracts to market two commercial properties. Re/Max employees marketed

those properties and received at least one offer from “3MB Capital.” In the request for

admissions sent to BGNA, Re/Max sought to have BGNA admit, among other things, that

it entered into the contracts, the properties were shown to the ultimate purchaser during

the contract terms, and BGNA accepted an offer from the purchaser during the pendency

of the exclusive rights contracts:

3. Admit that Defendants procured a buyer for your property located at
14814 Clifton Boulevard, Lakewood, Ohio who paid an amount over the
list price.
4. Admit that 3MB Capital made an offer to purchase the Archwood
Properties on or about November 3, 2013.

5. Admit that Thomas Beswick, on behalf of Plaintiff, accepted the offer
referenced in Request for Admission No. 4 on or about November 4, 2013.

6. Admit that Defendant David Reimer notified Thomas Beswick, on
behalf of Plaintiff, in early January 2014 that 3MB Capital wanted an
extension of the purchase agreement to give it time to obtain cash for the
purchase, or, alternatively, a release of the purchase agreement and return of
the $2,000 earnest money.

7. Admit that Thomas Beswick, on behalf of Plaintiff, did not respond to
Defendant David Reimer regarding 3MB Capital’s request for an extension
of the purchase agreement as referenced in Request for Admission No. 6.

8. Admit that Thomas Beswick, on behalf of Plaintiff, did not sign a
release of the 3MB Capital purchase agreement.
 9. Admit that Thomas Beswick, on behalf of Plaintiff, did not sign a
release of the Exclusive Right to Sell or Lease (Commercial) Agreement
with Defendant western Reserve Realty, LLC dba RE/MAX Traditions.

10. Admit that you sold the Archwood Properties to 3MB Capital on or
about November 12, 2014.

{¶15} As a result of BGNA’s failure to respond to these requests for admissions,

they were deemed admitted and considered by the trial court as such. Therefore, BGNA

admitted that it entered into an agreement with Re/Max, accepted an offer for purchase

above the listing price prior to the expiration of the agreement, and that Re/Max was

entitled to a six percent sales commission.

{¶16} These admissions are determinative on BGNA’s claims against Re/Max in

its first cause of action and Re/Max’s claims against BGNA.1

{¶17} While the closing may have taken place on November 12, 2014, the

admissions and affidavits of Reimer and Armington indicate that BGNA accepted the

offer for sale during the pendency of the exclusive rights contracts. Paragraph three of

the exclusive rights contracts in the record states,

After the termination of this Agreement or any extension thereof the
Broker’s authority shall continue for a six (6) month period as to any
prospective Purchaser or Tenant or any other person to whom this Property
was submitted during the term of this Agreement. If the Owner enters into
an Agreement of sale or lease for the Property with any person to whom
said Property was shown, presented or submitted by the Broker, or the
Owner or any other broker, during the term of this Agreement, the

BGNA separately assigns error to the grant of summary judgment and dismissal of its
1

second cause of action to determine the validity of the broker’s liens and the failure of appellees to
release those liens after the escrow company retained funds to cover any broker’s fees. Therefore,
the second cause of action will be addressed in that assignment of error.
 transaction shall be conclusively presumed to have been made by the
Broker, and the commission shall be paid by the Owner.

{¶18} The only evidence in the record is that BGNA entered into an agreement for

the sale of the property during the pendency of the agreement, but that the closing did not

take place until after the expiration of the agreement. The contract does not concern the

date of transfer of title, but the date a contract for sale is entered. With no contrary

evidence in the record, Re/Max showed that it was entitled to judgment as a matter of law

on its claims against BGNA. The claims against Beswick individually are not addressed

in BGNA’s appellate brief. Therefore, they do not appear to appeal the judgment in

favor of appellees on this claim. However, the claim involves the same harm and the

same damages to be satisfied from the funds deposited with the court. Therefore, there is

no reason to separately address them on appeal when BGNA did not.

{¶19} Therefore, BGNA’s second assignment of error is overruled.

C. Broker’s Liens Claim

{¶20} Finally, BGNA claims the trial court erred in granting summary judgment

and in not vacating its judgment on its second cause of action seeking the court to

determine the validity of the broker’s liens that appellees filed because the court never

addressed the validity of the liens.

{¶21} The trial court determined, pursuant to R.C. 1311.92(C), that the liens were

extinguished when the escrow company retained sufficient funds to cover any broker fees,

which it later deposited with the court. This statutory provision provides, “[w]hen funds

have been placed in escrow pursuant to division (A) of this section, the broker claiming a
broker’s lien under this section has an equitable lien on the escrowed funds, and the lien

recorded on the lien property shall be extinguished as a matter of law.” In fact, BGNA

readily admits that the closing went forward and ownership transferred to the new owner.

However, BGNA argues that appellees failed to file a release of the liens as required by

R.C. 1311.90(A)(1). That allegation was included in its complaint with references to that

code section. The affidavits filed by appellees and the admissions do not address this

cause of action. While portions of the cause of action are premised on BGNA’s

argument that any liens are invalid because appellees did not earn a commission, a portion

of this cause of action states specifically that appellees failed to file a release after BGNA

deposited sufficient funds. In its motion for summary judgment, appellees asserted that

because the property transferred, BGNA did not have standing to assert a cause of action

on behalf of the new owner concerning any existing encumbrances to title. Appellees

asserted that the property transferred to a new owner, and if any lien still remains on the

property, a cause of action enures to that new owner, not BGNA. There is no evidence in

the record that a lien exists on the property. The affidavit attached to the motion for

relief from judgment does not mention any liens. Records of two liens were attached to

BGNA’s complaint, but this does not speak to the continuing existence of the liens or

provide standing if the liens still exist on property no longer owned by BGNA.

{¶22} R.C. 1311.93 authorizes a cause of action against a broker that fails to

timely release a lien under R.C. 1311.90. However, the statute restricts a cause of action

to any person who has a legal or equitable interest in the lien property.
 Where the party does not rely on any specific statute authorizing invocation
of the judicial process, the question of standing depends upon whether the
party has alleged such a “personal stake in the outcome of the controversy,”
Baker v. Carr, 369 U.S. 186, 204, as to ensure that “the dispute sought to
be adjudicated will be presented in an adversary context and in a form
historically viewed as capable of judicial resolution.” Flast v. Cohen, 392
U.S. 83, 101.

Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

{¶23} Here, BGNA has not identified any legal or equitable interest it has in the

property. The property was purchased by another entity and title transferred prior to

BGNA filing its complaint. BGNA alleges, without support, that it has impacted its

credit. Even if this is true, the statute requires more than a showing of damages. It

requires a showing of a legal or equitable interest in the property, which BGNA has failed

to establish.

{¶24} Similarly, BGNA has not identified an interest in the property or stake in the

continued existence of the liens. Where a seller may be held liable for a continuing lien

that exists after transfer of real property to a buyer, the seller may have a stake in the

outcome because a seller may be liable to a buyer for valid, continuing liens that were not

released at closing. But here, the liens are no longer valid as a matter of law. By the

terms of R.C. 1311.92, those liens are no longer existing liens, and the buyer has a cause

of action against the broker if the broker fails to timely release any liens. R.C. 1311.93.

{¶25} BGNA failed to set forth the necessary elements for a valid cause of action

against appellees for their failure to timely release the liens. Further, BGNA is incorrect

when it states that the trial court did not address the validity of the liens. The court found
that the liens were no longer subsisting liens as a result of R.C. 1311.92. Appellees’

failure to file a release does not result in a cause of action capable of being sustained by

BGNA, but by the new owner where BGNA has not identified a legal or equitable interest

in the property after transfer.

{¶26} Therefore, the trial court did not err in granting summary judgment on

BGNA’s second cause of action or in denying BGNA’s motion for relief from judgment.

III. Conclusion

{¶27} Appellees demonstrated they were entitled to judgment as a matter of law

where they submitted affidavits and admissions determinative of the issues in the case.

BGNA offered nothing to contradict the evidence submitted by appellees. Therefore, the

trial court properly granted summary judgment to appellees. Further, BGNA failed to

show that the trial court abused its discretion in denying their motion for relief from

judgment.

{¶28} Judgment affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

EILEEN T. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR