WAYNE GALLWITZ, EXECUTOR OF THE ESTATE OF GLEN GALLWITZ Plaintiff-Appellee -vs- ABBY NOVEL Defendant-Appellant
Case No. 10-CA-10
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
January 24, 2011
2011-Ohio-297
Julie A. Edwards, P.J.; W. Scott Gwin, J.; John W. Wise, J.
CHARACTER OF PROCEEDING: Civil Appeal from Knox County Court of Common Pleas Case No. 09T06-0361; JUDGMENT: Affirmed
For Plaintiff-Appellee
WILLIAM DOUGLAS LOWE Reese, Pyle, Drake & Meyer, P.L.L. 36 North 2nd Street P.O. Box 919 Newark, Ohio 43058-0919
For Defendant-Appellant
ABBY NOVEL 301 North Main Street P.O. Box 416 Utica, Ohio 43080
Edwards, P.J.
{¶1} Defendant-appellant Abby Novel appeals from the May 3, 2010 Judgment Entry of the Knox County Court of Common Pleas denying her Combined Motion to Dismiss and for Summary Judgment and granting the Motion for Summary Judgment filed by plaintiff-appellee Wayne Gallwitz, Executor of the Estate of Glen Gallwitz.
STATEMENT OF THE FACTS AND CASE
{¶2} On or about January 1, 2008, appellant Abby Novel executed a note stating that Glen Gallwitz, her stepfather, had loaned her $5,000.00 at 6% interest for a total of $10,000.00. Subsequently, on June 24, 2009, Gallwitz filed a complaint against appellant, demanding judgment against her in the amount of $10,000.00 plus interest.
{¶3} On July 22, 2009, appellant filed an answer. Appellant, in her answer, claimed that the money given to her on January 8, 2002 by Glen Gallwitz was a gift. Appellant further alleged that, on such date, she offered to pay Glen Gallwitz back, but was told that she did not have to do so because she had taken care of Gallwitz during his senior years and because her mother, Carrie Gallwitz, had allowed Gallwitz‘s grandson to live rent-free at a rental home owned by Carrie in Columbus. Appellant, in her answer, alleged that she had written out the loan note on her own initiative.
{¶4} After Glen Gallwitz died on July 2, 2009, his son appellee Wayne Gallwitz, the Executor of Glen Gallwitz‘s estate, was substituted as the party plaintiff.
{¶5} Appellant, on February 18, 2010, filed a Combined Motion to Dismiss and for Summary Judgment. Appellant, in her motion, alleged that a binding contract was not formed because there was no acceptance of the note by Glen Gallwitz and no meeting of the minds, and because there were no certain and definite terms as to
{¶6} “3. The money given to me on January 8, 2002 by Glen Gallwitz was a gift and repayment was waived.
{¶7} “4. The money given to me was used to manufacture a patented jewelry display design.
{¶8} “5. On January 8, 2002 I offered to pay Glen Gallwitz the money back after I manufactured and sold the first one thousand (1,000) jewelry display units and wrote the loan note offer out for Glen Gallwitz on my own initiative.
{¶9} “6. On January 8, 2002 Glen Gallwitz told me that I did not have to pay the money back to him because I had been good to him by helping to take care of him during his senior years including taking him to the doctor, taking him out for dinner & shopping and helping around the house.
{¶10} “7. On January 8, 2002 Glen Gallwitz also stated that the money he gave me was a gift because my Mother, Carrie Gallwitz, allowed Glen Gallwitz‘s grandson to live for free for several years at my Mother‘s rental home on Ohio State campus in Columbus, Ohio.”
{¶11} In response, appellee, on March 12, 2010, filed a Combined Motion for Summary Judgment and memorandum in opposition to appellant‘s motion.
{¶13} Appellant now raises the following assignments of error on appeal:
{¶14} “I. THE LOWER COURT ERRER (SIC) IN RULING PLAINTIFF-APPELLEE HAD A RIGHT TO RECOVERY BASED ON HOLDER IN DUE COURSE STATUS.
{¶15} “II. THE LOWER COURT ERRED IN RULING DEFENDANT-APPELLANT DID NOT HAVE A VIABLE FORMATION OF CONTRACT DEFENSE.
{¶16} “III. THE LOWER COURT ERRER (SIC) IN NOT GRANTING SUMMARY JUDGMENT TO DEFENDANT-APPELLANT.”
{¶17} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As such, we must refer to
{¶18} Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, 674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107, 662 N.E.2d 264.
{¶19} It is pursuant to this standard that we review appellant‘s assignments of error.
I
{¶20} Appellant, in her first assignment of error, argues that the trial court erred in holding that appellee had a right to recovery based on holder in due course status.
{¶21} Both parties cite to
{¶22}
{¶23} “Generally, the holder of a negotiable instrument * * * establishes a prima facie case for payment on a note where the note is placed in evidence and the makers’ signature(s) is (are) admitted.” Dryden v. Dryden (1993), 86 Ohio App.3d 707, 711, 621 N.E.2d 1216, 1219, citing
{¶24} As noted by appellee, Glen Gallwitz was the party in possession of the note executed by appellant at the time the case sub judice was filed. Appellant does not dispute that she signed the note. Glen Gallwitz was, therefore, the holder of the note and, upon production, was entitled to recover on the same unless appellant provided any defenses. While appellant cites to
{¶26} “(1) It is payable to bearer or to order…
{¶27} “(2) It is payable on demand or at a definite time.
{¶28} “(3) It does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money,…”
{¶29} In the case sub judice, the note contains an unconditional promise to pay a fixed amount of money, is payable on demand, only requires the payment of money and is payable “to bearer or to order.”
{¶30} In short, we find that the trial court did not err in holding that appellee had a right to recovery as a holder of the note.
{¶31} Appellant‘s first assignment of error is, therefore, overruled.
II
{¶32} Appellant, in her second assignment of error, argues that the trial court erred in holding that she did not have a “viable formation of contract defense.” Appellant
{¶33} “Acceptance” is the “drawee‘s signed agreement to pay the draft as presented.”
{¶34} Appellant also argues that there was no meeting of the minds because, on January 8, 2002, which is the date the note was signed, Glen Gallwitz contemporaneously told her that she did not have to repay him and that the money was a gift because she had been good to him and because appellant‘s mother, Carrie Gallwitz, had allowed Glen Gallwitz‘s grandson to live rent-free at Carrie‘s house near the Ohio State University. “The parole evidence rule states that ‘absent fraud, mistake or other invalidating cause, the parties’ final written integration of their agreement may
{¶35} Finally, appellant contends that the note is not enforceable because there are no certain and definite terms as to repayment. However, as is stated above, where no time for payment is stated on the instrument, an instrument is payable upon demand.
{¶36} Appellant‘s second assignment of error is, therefore, overruled.
III
{¶37} Appellant, in her third assignment of error, argues that the trial court erred in not granting summary judgment in her favor.
{¶38} Appellant specifically contends that her Motion for Summary Judgment should have been granted because appellee was not a holder in due course and did not have an automatic right to recovery by simply presenting the note and other evidence and because appellee failed to submit any evidence to show an acceptance of the note, a meeting of the minds and certain and definite contract terms. Appellant further argues that the trial court should have granted her motion because reasonable minds could only conclude that the money given to her by Glen Gallwitz was a gift, not a loan.
{¶40} Appellant‘s third assignment of error is, therefore, overruled.
{¶41} Accordingly, the judgment of the Knox County Court of Common Pleas is affirmed.
By: Edwards, P.J.
Gwin, J. and
Wise, J. concur
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JUDGES
JAE/d1005
WAYNE GALLWITZ, EXECUTOR OF THE ESTATE OF GLEN GALLWITZ Plaintiff-Appellee -vs- ABBY NOVEL Defendant-Appellant
CASE NO. 10-CA-10
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
2011-Ohio-297
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Knox County Court of Common Pleas is affirmed. Costs assessed to appellant.
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JUDGES