Razi v. Wedgewood Golf & Country Club , 2021 Ohio 4145 ( 2021 )

[Cite as Razi v. Wedgewood Golf & Country Club, 2021-Ohio-4145.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ALI RAZI : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellant : Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
WEDGEWOOD GOLF & : Case No. 21 CAE 07 0034
COUNTRY CLUB :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 20CVH090419
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 22, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JAMES R. LEICKLY DAVE LACKEY
400 South Fifth Street 153 South Liberty Street
Suite 200 Powell, OH 43065
Columbus, OH 43215
Delaware County, Case No. 21 CAE 07 0034 2
Wise, Earle, J.
{¶ 1} Plaintiff-Appellant, Ali Razi, appeals the June 10, 2021 judgment entry of
the Court of Common Pleas of Delaware County, Ohio, granting summary judgment to
Defendant-Appellee, Wedgewood Golf and Country Club.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellee is a private country club. In 2003, appellant entered into an
agreement with appellee for "equity" membership to the country club. Appellant was
required to pay a $30,000 initiation fee. Appellant believed under the terms of the
agreement, if he were to move and thus have to resign his membership, he would be paid
back his initiation fee at some point in time.
{¶ 3} Appellant moved and therefore resigned his membership in 2008. He was
never paid back.
{¶ 4} On September 25, 2020, appellant filed a complaint against appellee,
claiming breach of contract. The parties each filed motions for summary judgment. By
judgment entry filed June 10, 2021, the trial court denied appellant's motion, granted
appellee's motion, and entered judgment to appellee as a matter of law.
{¶ 5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 6} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
APPELLEE/DEFENDANT WEDGEWOOD'S MOTION FOR SUMMARY JUDGMENT
AGAINST APPELLANT/PLAINTIFF RAZI AND IN DENYING MR. RAZI'S MOTION FOR
SUMMARY JUDGMENT AGAINST WEDGEWOOD BECAUSE UNDER THE LAW SET
Delaware County, Case No. 21 CAE 07 0034 3
FORTH BY THE OHIO SUPREME COURT, A CONDITION PRECEDENT WAS NOT
CREATED IN THE CONTRACT THAT WOULD EXCUSE WEDGEWOOD'S
PERFORMANCE. THE CONTRACTUAL LANGUAGE CREATED A "PAY-WHEN-PAID"
PAYMENT ARRANGEMENT THAT IS NOT CONDITIONAL AS OPPOSED TO A
CONDITIONAL "PAY-IF-PAID" ARRANGEMENT THAT REQUIRES EXPRESS
CONDITIONAL LANGUAGE. CONDITIONS EXCUSE PERFORMANCE AND THUS
MUST BE EXPLICIT."
I
{¶ 7} In his sole assignment of error, appellant claims the trial court erred in
granting summary judgment to appellee. We disagree.
{¶ 8} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):
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. State ex. rel.
Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
Delaware County, Case No. 21 CAE 07 0034 4
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d
466, 472, 364 N.E.2d 267, 274.
{¶ 9} As an appellate court reviewing summary judgment motions, we must stand
in the shoes of the trial court and review summary judgments on the same standard and
evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506
N.E.2d 212 (1987).
{¶ 10} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.
15CA56, 2015-Ohio-4444, ¶ 13:
It is well established the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial.
Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). The standard for granting summary judgment is
delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party
seeking summary judgment, on the ground that the nonmoving party cannot
prove its case, bears the initial burden of informing the trial court of the basis
for the motion, and identifying those portions of the record that demonstrate
the absence of a genuine issue of material fact on the essential element(s)
of the nonmoving party's claims. The moving party cannot discharge its
initial burden under Civ.R. 56 simply by making a conclusory assertion the
nonmoving party has no evidence to prove its case. Rather, the moving
party must be able to specifically point to some evidence of the type listed
Delaware County, Case No. 21 CAE 07 0034 5
in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has
no evidence to support the nonmoving party's claims. If the moving party
fails to satisfy its initial burden, the motion for summary judgment must be
denied. However, if the moving party has satisfied its initial burden, the
nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to
set forth specific facts showing there is a genuine issue for trial and, if the
nonmovant does not so respond, summary judgment, if appropriate, shall
be entered against the nonmoving party." The record on summary
judgment must be viewed in the light most favorable to the opposing party.
Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.
{¶ 11} In his September 25, 2020 complaint, appellant alleged a breach of contract
for appellee's failure to repay his initiation fee of $30,000. As explained by this court in
Caley v. Glenmoor Country Club, 5th Dist. Stark Nos. 2013 CA 00012 & 2013 CA 00018,
2013-Ohio-4877, ¶ 59-61:
In order to succeed on a breach of contract claim, the plaintiff must
demonstrate that: (1) a contract existed; (2) the plaintiff fulfilled his
obligations; (3) the defendant breached his obligations; and (4) damages
resulted from this breach. Chaney v. Ramsey, 4th Dist. No. 98CA614, 1999
WL 217656, (Apr. 7, 1999), citing Doner v. Snapp, 98 Ohio App.3d 597,
600, 649 N.E.2d 42 (2nd Dist.1994).
Delaware County, Case No. 21 CAE 07 0034 6
" '[B]reach,' as applied to contracts is defined as a failure without
legal excuse to perform any promise which forms a whole or part of a
contract, including the refusal of a party to recognize the existence of the
contract or the doing of something inconsistent with its existence." Natl.
City Bank of Cleveland v. Erskine & Sons, Inc., 158 Ohio St. 450, 110
N.E.2d 598 (1953), paragraph one of the syllabus.
" 'When the facts presented are undisputed, whether they constitute
a performance or a breach of a written contract, is a question of law for the
court.' " Koon v. Hoskins, 4th Dist. No. 95CA497, 1996 WL 30018, (Jan.
24, 1996), fn. 5, quoting Luntz v. Stern, 135 Ohio St. 225, 20 N.E.2d 241(1939), paragraph five of the syllabus.
{¶ 12} As further explained by this court in 2291 Fourth LLC v. Advantage Credit
Union, Inc., 5th Dist. Richland No. 2021 CA 0022, 2021-Ohio-4021, ¶ 25:
"Common words appearing in a written instrument will be given their
ordinary meaning unless manifest absurdity results, or unless some other
meaning is clearly evidenced from the face or overall contents of the
instrument." Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374
N.E.2d 146 (1978) paragraph two of the syllabus. * * * "When a term of a
contract is determined to be ambiguous, then the determination of what the
actual terms were becomes a question of fact." Lake Erie Towing v. Troike,
6th Dist. Erie No. E-05-062, 2006-Ohio-5115, ¶13.
Delaware County, Case No. 21 CAE 07 0034 7
{¶ 13} Neither party retained a copy of the agreement signed by appellant.
Attached to appellee's October 19, 2020 answer is a copy of an "Application for
Membership" that appellant would have signed in 2003, along with the "Rules and
Regulations of Wedgewood Golf and Country Club" in effect at the time.
{¶ 14} The application specifically states above the signature line, "I understand
that upon acceptance for membership, initiation fees are not refundable."
{¶ 15} In the rules and regulations under "Membership Information," subsection B
states in pertinent part:
Upon resignation of a resident or social member or withdrawal by an
organization holding corporate membership, such membership shall be
returned to the Club for repurchase at such times as the Board of Directors
accepts from the waiting list or resells such membership to a new member
designated as a replacement for such resigning member[.] The resigning
golf member will be paid the amount set from time to time by the Board of
Directors of the initiation fee less a transfer fee of thirty percent (30%) of
such initiation fee. * * * The membership equity refund is the amount of the
membership initiation fee in effect on the day that the resigning member's
resignation was accepted by the Board of Directors or the membership
initiation fee in effect on the day that the resigning member's membership
is resold, whichever is less.
Delaware County, Case No. 21 CAE 07 0034 8
{¶ 16} In its November 12, 2020 motion for summary judgment, appellee argued
pursuant to the rules, it had an obligation to refund seventy percent of the initiation fee to
appellant if appellant reached the top of the "Equity Repayment List," and if a new
member chose to purchase an equity membership as the repayment funds came from
the new member's initiation fee. Appellee explained "[t]here have been no new members
opting for the equity category of membership for many years, and thus there is no
movement on that list and no funds to be used to repay former members." There are
seventy-five members on the repayment list ahead of appellant. Appellee argued the two
conditions are conditions precedent, and since the "conditions have never materialized,"
it is entitled to summary judgment on appellant's breach of contract claim.
{¶ 17} In his March 1, 2021 combined memorandum contra and motion for
summary judgment, appellant argued the agreement he signed was a "pay-when-paid"
contract and not a conditional "pay-if-paid" contract. In support of his argument, appellant
cites the case of Transtar Electric, Inc. v. A.E.M. Electric Services Corp., 140 Ohio St.3d
193, 2014-Ohio-3095, 16 N.E.3d 645, wherein the Supreme Court of Ohio explained the
following at ¶ 10-11:
Generally, there are two types of contractual provisions that establish
the manner by which a general contractor pays a subcontractor for the
subcontractor's work. A general contractor can make an unconditional
promise to pay the subcontractor, usually within a reasonable time to allow
the general contractor to be paid. An unconditional promise to pay is a pay-
Delaware County, Case No. 21 CAE 07 0034 9
when-paid payment provision. Such a promise is not dependent on or
modified by the owner's nonpayment.
Alternatively, the general contractor may make a conditional promise
to pay the subcontractor that is enforceable only if a condition precedent
has occurred. A conditional promise to pay is a pay-if-paid payment
provision. This provision requires the general contractor to pay the
subcontractor only if the owner pays the general contractor. Therefore, the
risk of the owner's nonpayment is transferred to the subcontractor.
(Citations omitted.)
{¶ 18} In reviewing the contract before it, the Transtar court found the
subcontractor agreed to be paid only if the general contractor was paid for the
subcontractor's work because the contract specifically stated payment to general
contractor was a condition precedent to subcontractor receiving payment. The contract
was a "pay-if-paid" arrangement that shifted the risk of non-payment to the subcontractor.
Id. at ¶ 24.
{¶ 19} Appellant argued the language in the agreement sub judice cited above in
¶ 15 was in no way conditional. The language did not include the words "condition
precedent" or other conditional terms such as "if." Appellant argued appellee's
interpretation of the agreement language shifts the risk of repayment to him. Appellant
further argued if the agreement was in fact a "pay-if-paid" agreement, summary judgment
was still appropriate because appellee has been paid membership fees since appellant's
resignation in 2008.
Delaware County, Case No. 21 CAE 07 0034 10
{¶ 20} In its March 11, 2021 combined reply to memorandum contra and
memorandum contra to motion for summary judgment, appellee cited the case of Caley,
supra, 2013-Ohio-4877, a country club membership case wherein the equity membership
initiation fee and the rules regarding repayment upon resignation were substantially
similar to this case and deemed not to be unconscionable. As noted by this court in Caley
at ¶ 63:
This Court has followed "the well-settled principle that a person who
is competent to contract and who signs a written document without reading
it is bound by its terms and cannot avoid its consequences." Hook v. Hook
(1982), 69 Ohio St.2d 234, 238, 23 O.O.3d 239, 431 N.E.2d 667. According
to the Ohio Supreme Court, the "legal and commonsensical axiom that one
must read what one signs survives" to this day. ABM Farms, Inc. v. Woods
(1998), 81 Ohio St.3d 498, 503, 692 N.E.2d 574. See, also, McAdams v.
McAdams (1909), 80 Ohio St. 232, 240–241, 88 N.E. 542 ("A person of
ordinary mind cannot be heard to say that he was misled into signing a
paper which was different from what he intended, when he could have
known the truth by merely looking when he signed.").
Accord Pettit v. Glenmoor Country Club, 5th Dist. Stark No. 2013CA00108, 2014-Ohio-
902.
Delaware County, Case No. 21 CAE 07 0034 11
{¶ 21} In its June 10, 2021 judgment entry granting summary judgment to appellee
and denying appellant's motion for summary judgment, the trial court determined the
contractual agreement between the parties included the language in both the application
and in the rules and regulations. Each party relied on these two documents in support of
their respective arguments. The trial court analyzed the language in the documents and
the cases cited by the parties in light of their respective arguments.
{¶ 22} The trial court determined the dispute between the parties focused on
whether appellee's obligations were conditional or absolute. The trial court found the
language of the rules and regulations to be "unequivocally conditional" regardless of
missing "condition precedent" language.
{¶ 23} The trial court determined appellee's obligation to pay appellant is
conditioned on appellee either: "(1) accepting a new equity member from the waiting list
or (2) selling a new membership designated as a replacement for Razi's equity
membership." The trial court concluded "[t]o date, neither of those events has occurred"
and therefore, appellant's breach of contract claim fails as a matter of law. Further,
appellant is not at the top of the repayment list. The trial court noted appellant was
correct, appellee's "payment obligation is absolute, but only upon the occurrence of the
two conditions precedent. Because neither condition has occurred, Wedgewood's
payment obligation has not yet arisen." The trial court addressed all of appellant's
arguments. We concur with the trial court's thorough analysis on all issues. While the
application clearly stated the initiation fee was not refundable, the rules provided for
partial repayment in the event of certain conditions, conditions which have yet to occur.
Delaware County, Case No. 21 CAE 07 0034 12
{¶ 24} Upon review, we find genuine issues of material fact do not exist, and the
trial court did not err in granting appellee's motion for summary judgment and in denying
appellant's motion for summary judgment.
{¶ 25} The sole assignment of error is denied.
{¶ 26} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Baldwin, P.J. and
Hoffman, J. concur.
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