N. Frozen Foods, Inc. v. Moton

2014 Ohio 825

• Court: Ohio Court of Appeals
• Decided: March 6, 2014
• Docket: 99938
• Status: Published

Opinion

[Cite as N. Frozen Foods, Inc. v. Moton, 2014-Ohio-825.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99938

NORTHERN FROZEN FOODS, INC. PLAINTIFF-APPELLEE

vs.

RONALD E. MOTON, SR. DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-795157

BEFORE: Boyle, A.J., Jones, J., and Kilbane, J.

RELEASED AND JOURNALIZED: March 6, 2014 FOR APPELLANT

Ronald E. Moton, Sr., pro se 293 Second Avenue Mansfield, Ohio 44902

ATTORNEYS FOR APPELLEE

Donald A. Mausar Amanda Rasbach Yurechko Weltman, Weinberg & Reis Co., L.P.A. Lakeside Place, Suite 200 323 Lakeside Avenue, West Cleveland, Ohio 44113 MARY J. BOYLE, A.J.:

{¶1} Defendant-appellant, Ronald Moton, Sr. (“Moton”), appeals the trial court’s

decision granting judgment in favor of plaintiff-appellee, Northern Frozen Foods, Inc.,

d.b.a. Northern Haserot (“Northern Haserot”). He further appeals the trial court’s

decision denying his motion for change of venue and motion to dismiss. Finding no

merit to the appeal, we affirm.

Procedural History and Facts

{¶2} In November 2012, Northern Haserot commenced the underlying action,

seeking a judgment for the outstanding balance owed on an account held by Moton for

food products delivered to Moton’s company, “The King of Bar-B-Que Ribs Company,

Inc.” Northern Haserot attached a copy of the account application, an aged charge

payment summary, and the “Terms of Sale on Credit/Credit Agreement/Personal

Guarantee” (“the agreement”), which was signed by Moton. Northern Haserot alleged

that Moton owed $9,249.83 on the account plus interest at the rate of 18 percent per

annum from September 28, 2012.

{¶3} Relevant to this appeal, the agreement contains both a forum-selection

clause (identifying Cuyahoga County Court of Common Pleas as having venue and

jurisdiction) and a personal guaranty provision.

{¶4} In December 2012, Moton filed a single document, titled “answer, change

of venue, and motion for dismissal.” Moton denied “all complaints in the captive case”

and sought a change of venue, alleging that the Richland County Common Pleas Court was the only proper venue for the action. Moton further disputed his personal liability

based on his signing the agreement in his capacity as president of The King of Bar-B-Que

Ribs Company, Inc. and the basis of Northern Haserot’s authority to collect on invoices

that identify Brandt Meat Company and UniPro Foodservice as the party owed money —

entities other than Northern Haserot.

{¶5} Northern Haserot opposed the motion, arguing that Moton expressly

consented to the Cuyahoga County Court of Common Pleas jurisdiction when he executed

the agreement. It further argued that Moton’s motion provided no grounds to dismiss the

complaint and that Northern Haserot had sufficiently pled a claim for relief.

{¶6} The trial court ultimately denied Moton’s motion, and on February 5, 2013,

set the matter for a case management conference on February 27, 2013. Northern

Haserot subsequently moved for summary judgment on February 12, 2013. Moton did

not oppose the motion for summary judgment. Instead, on February 22, 2013, Moton

filed a “motion for opposition of the court scheduling of the conference,” arguing that the

court had no jurisdiction and disputing Northern Haserot’s legal authority to pursue an

action against him personally. Moton also filed a “motion for disqualification” of the

trial judge in the trial court, arguing that the trial court was “ignoring” his arguments by

virtue of the court not finding them compelling.

{¶7} On April 19, 2013, the trial court struck Moton’s improperly filed motion for

disqualification. On April 26, 2013, the court granted Northern Haserot’s unopposed

motion for summary judgment, ordering judgment in its favor and against Moton for $9,249.83 “with contractual interest at the rate of 18% per annum from September 28,

2012.” Moton now appeals, listing eight assignment of errors.

App.R. 16 and 12

{¶8} Preliminarily, we note that Moton’s brief filed with this court is very

difficult to decipher and does not comply with App.R. 16 in many respects, including a

lack of reference to the places in the record where each error is reflected (App.R.

16(A)(3)), no statement of the issues (App.R. 16(A)(4)), and the supporting arguments do

not clearly specify the contentions pertaining to each assignment of error or provide

citation to supporting legal authority (App.R. 16(A)(7)).

{¶9} Pursuant to App.R. 12(A)(2), an appellate court may disregard an

assignment of error because of such “lack of briefing.” Gaskins v. Mentor

Network-REM, 8th Dist. Cuyahoga No. 94092, 2010-Ohio-4676, ¶ 7, citing Hawley v.

Ritley, 35 Ohio St.3d 157, 519 N.E.2d 390 (1988). This rule is applicable to all parties

regardless of whether they proceed on a pro se basis. Id. at ¶ 8. Based on Moton’s

failure to comply with App.R. 16, we are free to disregard his purported assignments of

error. In the interest of justice, however, we will address what we discern to be his

assignments of error.

Summary Judgment

{¶10} In his first seven assignments of error, Moton appears to be challenging the

trial court’s award of summary judgment on three different grounds: (1) the sufficiency of

Northern Haserot’s evidence, namely, the account invoices; (2) the trial court’s refusal to reschedule a case management conference; and (3) the basis to impose personal liability

when Moton allegedly executed the contract only on behalf of his corporation.

Standard of Review

{¶11} We review an appeal from summary judgment under a de novo standard.

Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). Accordingly,

we afford no deference to the trial court’s decision and independently review the record to

determine whether summary judgment is appropriate. N.E. Ohio Apt. Assn. v. Cuyahoga

Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997).

{¶12} Civ.R. 56(C) provides that before summary judgment may be granted, a

court must determine 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 the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party.

State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d

654 (1996).

{¶13} The moving party carries an initial burden of setting forth specific facts that

demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d

280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, summary

judgment is not appropriate, but if the movant does meet this burden, summary judgment will be appropriate only if the nonmovant fails to establish the existence of a genuine

issue of material fact. Id. at 293.

Satisfying Its Burden

{¶14} Moton does not appear to dispute the amount of money owed on the

account. Instead, he appears to dispute whether Northern Haserot satisfied its burden

demonstrating that it is entitled to judgment as a matter of law. We find no merit to his

argument.

{¶15} The record reveals that Northern Haserot obtained summary judgment after

establishing that Moton owed an outstanding balance of $9,249.83 on an account for

goods provided by Northern Haserot. Specifically, Northern Haserot produced a copy of

the agreement executed by Moton, a statement of the account, and the invoices

evidencing the outstanding balance. It further produced the affidavit of Joel Waters,

Northern Haserot’s authorized representative and custodian of records, who swore to the

outstanding balance, and that each of the invoices, including those containing a trade

name of “UniPro Foodservice” or “Brandt Meat Company, a Division of Northern

Haserot” were all due and owing. Moton never filed a brief in opposition opposing any

of this evidence.

{¶16} Accordingly, through the executed agreement, the copy of the invoices, and

the affidavit of Joel Waters, Northern Haserot produced evidence that it was entitled to

judgment as a matter of law.

Case Management Conference {¶17} Moton argues that the trial court erred in refusing to reschedule the case

management conference or in not allowing him to attend by telephone. It appears that

the trial court never held a case management conference in this case. Nevertheless, the

failure to do so did not prejudice Moton. Northern Haserot moved for summary

judgment on February 12, 2013. The trial court did not issue a ruling until beyond the

time afforded for Moton to oppose the motion. Given that Northern Haserot satisfied its

burden, the trial court properly granted its motion. Notably, Moton never filed a motion

seeking a continuance for additional time to respond.

Personal Liability

{¶18} Moton further argues that the trial court erred in finding him personally

liable on the account when he specifically wrote the title, “President,” next to his

signature on the agreement. Moton’s argument, however, ignores that the agreement

contained an express personal guaranty in the body of the agreement. Specifically, the

agreement provides in relevant part:

As a condition of Northern Frozen Foods, Inc., d.b.a. Northern Haserot, extending credit to Purchaser, the Undersigned hereby personally guarantees payment in full for all product or goods delivered by Northern Frozen Foods, Inc., d.b.a. Northern Haserot, plus service charges, collection costs, return check fees and attorney fees, and waive[s] any presentment, demand, protest and any other notice from Northern Frozen Foods, Inc., d.b.a. Northern Haserot regarding this guarantee of payment. It is further agreed that the use of titles with respect to individual signatures below shall have no legal significance and shall in no way be construed to relieve the individual guarantors of their personal obligations under this paragraph.

(Emphasis added.) {¶19} The issue of whether a note has been executed by a party in his individual or

representative capacity is a question to be determined from the consideration of the whole

instrument. Pensco Trust Co. v. H&J Props., L.L.C., 8th Dist. Cuyahoga No. 93826,

2010-Ohio-3610, ¶ 10. And here, based on the clear and express provision in the

agreement, Moton cannot escape personal liability by including his title next to his

signature. Notably, although Moton’s company is identified in the account application,

the agreement specifically identifies only Moton as the purchaser and guarantor under the

agreement.

{¶20} Accordingly, we find that the trial court properly granted judgment in favor

of Northern Haserot and against Moton in his individual capacity.

Venue and Jurisdiction

{¶21} In his final assignment of error, Moton argues that the trial court erred in

denying his motion to change venue and motion to dismiss for lack of jurisdiction. He

contends that Richland County — the place of his residence, his business, and where he

received all deliveries giving rise to the complaint — is the only proper venue. He

further implies that the Richland County Court of Common Pleas is the only court to have

personal jurisdiction over him. Moton’s arguments, however, lack merit.

{¶22} Moton expressly consented to venue being proper in Cuyahoga County

under the agreement. Moton has not disputed the validity of the forum-selection clause

during the proceedings. Instead, he has maintained that his health conditions precluded

him from conveniently appearing in Cuyahoga County. Based on the express forum-selection clause in the agreement, the trial court did not err in denying Moton’s

motion to change venue or in denying his motion to dismiss on personal jurisdiction

grounds. See Original Pizza Pan v. CWC Sports Group, Inc., 194 Ohio App.3d 50,

2011-Ohio-1684, 954 N.E.2d 1220, ¶ 10-12 (8th Dist.).

{¶23} Moton’s eight assignments of error are overruled.

{¶24} Judgment affirmed.

It is ordered that appellee recover of 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.

MARY J. BOYLE, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and MARY EILEEN KILBANE, J., CONCUR