Alami v. Khalid ( 2024 )

[Cite as Alami v. Khalid, 2024-Ohio-2456.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ALI ALAMI, :
Plaintiff-Appellant, :
No. 113140
v. :
HASSAN KHALID, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 27, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-915227
Appearances:
Guy E. Tweed, II, for appellant.
Michael A. Partlow, for appellees.
EILEEN T. GALLAGHER, J.:
Plaintiff-appellant, Ali Alami (“Alami”), appeals the denial of his motion
to enforce settlement agreement. He claims the following errors:
1. The trial court erred when it denied appellant’s oral motion for
default judgment based upon appellees’ failure to file a response in
contravention of Civ.R. 6(C)(1).
2. The trial court erred in finding that the equipment to be returned to
appellant did not include all items identified in Exhibit A of the
settlement agreement and in finding that all equipment was returned
to appellant.
3. The trial court erred in finding that appellant failed to meet his
burden of proving damages.
We affirm the trial court’s judgment.
I. Facts and Procedural History
In May 2019, Alami filed a complaint for replevin, money damages, and
unjust enrichment against defendants-appellees, Hassan Khalid (“Khalid”) and
Sahara Cuisine, Inc. (“Sahara”) (collectively “the defendants”). The complaint
alleged that Alami and Khalid entered into a joint venture to buy fruit and vegetable
processing equipment at auction. The auction took place at Miami University
(“Miami”). The complaint further alleged that although Alami purchased the
equipment and had it delivered to Khalid’s place of business, Khalid refused to
follow through with the joint venture and refused to turn the property over to Alami.
In the prayer for relief, Alami sought the return of the equipment, compensatory
damages resulting from the alleged loss of use of the equipment, and “other
equitable relief.” (Complaint p. 4.)
The parties entered into a settlement agreement in October 2021. In a
journal entry dated October 25, 2021, the court removed the case from the active
docket but retained jurisdiction until it received a final dismissal from the parties.
A final dismissal was never filed.
In February 2023, Alami filed a motion to enforce the settlement
agreement. In support of the motion, Alami submitted a separately-filed affidavit,
together with a copy of the settlement agreement, and a list of equipment that he
claimed was not returned as required by the settlement agreement. He also stated
in the affidavit that the missing equipment was worth $87,175.00, and that some of
the equipment the defendants returned was damaged in the amount of $76,500.00.
He, therefore, sought to recover $163,675.00 in damages as a result of the
defendants’ alleged breach of the settlement agreement.
The settlement agreement provides, in relevant part:
Know all men by these presents that in consideration of EIGHT
THOUSAND DOLLARS ($8,000.00) paid by PLAINTIFF TO
DEFENDANTS (the check shall be made payable to “HASSAN
KHALID”) by midnight December 3, 2021, DEFENDANTS agree to
return to PLAINTIFF all the property purchased by DEFENDANTS
from Miami University, which is the subject of the litigation between
the parties, to PLAINTIFF, with exception of a “CHILLER” that was
already sold by DEFENDANTS. This includes any and all equipment
and supplies. A copy of the list is attached hereto as Exhibit A. Plaintiff
shall be allowed to pick up the equipment from DEFENDANTS on or
before midnight on December 15, 2021. DEFENDANTS shall
cooperate in arranging a time and access to the equipment.
The list attached to the settlement agreement as Exhibit A includes a
list of 18 items. The 18 items are listed and described on the first three pages of
Exhibit A. The fourth page of Exhibit A includes a separate list of 19 items. Referring
to these 19 items, the top of the fourth page states:
Additional item list. WHICH [sic] WEREN’T & AREN’T INCLUDED
IN SAID AUCTION PURCHASE
I ALI H. ALAMI PICKED UP THESE ITEMS FROM THE
UNIVERSITY AT NO CHARGE TO ME.
The defendants did not file a brief in opposition to the motion for
settlement agreement. Nevertheless, the court held an evidentiary hearing on the
motion in June 2023. During the direct examination of Alami, his counsel made an
oral motion for default judgment, arguing that, pursuant to Civ.R. 6(C)(1), the
defendants waived any defense to the motion by failing to file a brief in opposition.
(Tr. 14.) The defendants, who were present at the hearing, had previously appeared
and defended against the action. Therefore, the trial court overruled the motion for
default and continued with the evidentiary hearing. (Tr. 14-15.)
Alami testified at the hearing that he paid for the equipment purchased
at the auction, but he did not present any documentation to corroborate his
testimony. He also admitted that the equipment was sold “as is,” meaning that there
were no warranties on any of the equipment. (Tr. 33.) Alami claimed the equipment
was in working condition when it was purchased and delivered to the defendants’
warehouse and that the defendants failed to return all the equipment listed in the
settlement agreement. Alami further insisted that the property that the defendants
did return had been damaged. Counsel asked Alami to quantify the diminution in
value of the equipment, and Alami replied: “I think it’s like 70,000, 60,000. I’m not
sure.” (Tr. 21.)
Benjamin Saul Regal (“Regal”), owner of Regal Equipment Inc.,
testified that Alami hired him to appraise the value of the equipment and to pick up
the equipment from Khalid’s warehouse. (Tr. 37.) According to Regal, his project
manager, Michael Schatz (“Schatz”), was present when Tesar Industries, a third-
party rigging company, picked up the equipment and delivered it to Regal’s
warehouse. (Tr. 37-38.) Regal testified that the missing equipment was worth
$85,975.00. (Tr. 41.) However, on cross-examination, he admitted that he
appraised the equipment without ever seeing it, and he did not explain the basis for
his valuations. (Tr. 42.)
Schatz testified that he is a member of an organization known as
“Equipment Appraisers of America,” but that he is not a licensed appraiser. (Tr. 51.)
According to Schatz, the equipment was “in pretty rough condition” when it was
recovered from the defendants’ warehouse. (Tr. 49.) Schatz admitted that Regal
appraised the missing items without seeing them and that the condition of the items
is an important factor to consider in the valuation. (Tr. 53-54.)
Khalid testified that Alami paid him the $8,000 due under the terms
of the settlement agreement. He stated that Alami bid on the equipment at auction,
but he (Khalid) paid the auctioneer price of $11,141.11 for the purchase of 18 pieces
of equipment. (Tr. 68.) Khalid verified documentation showing his account number
on the auction platform, GovDeals, Inc., and a wire transfer of $12,555 for the
purchase that included the auctioneer’s price and fees. (Tr. 68.) Khalid hired a
rigging company known as “TQL” to transport the 18 items he purchased to his
warehouse, and he verified the invoice from TQL for the delivery. (Tr. 70.) Khalid
inspected the 18 items before they were transported away from the auction. He
stated that because the equipment was not “hooked,” he could not determine
whether any of it worked. (Tr. 71.) He also stated that the equipment was sold “as
is,” and that it remained in his warehouse for four years before being turned over to
Alami. (Tr. 76.)
Khalid testified that when the equipment was later picked up pursuant
to the settlement agreement, it was in the same condition it was in when they
received it from Miami. Khalid further stated that he worked closely with Schatz,
who was present when the property was picked up, and that no one mentioned any
missing equipment at that time. (Tr. 75.) Khalid maintained that he complied with
his responsibilities under the settlement agreement and that he did not fail to turn
over any of the equipment.
The trial court found that the defendants complied with the terms of
the settlement agreement and returned all the property that they were required to
turn over. The court also concluded that the equipment turned over to Alami was
delivered in the same condition it was in when they purchased it from Miami and
that Alami failed to prove his claim for damage with certainty. Alami now appeals
the trial court’s judgment.
II. Law and Analysis
A. Default Judgment
In the first assignment of error, Alami argues the trial court erred in
failing to grant his oral motion for default judgment. He contends the trial court
failed to properly apply Civ.R. 6(C)(1) and that the defendants’ failure to file a brief
in opposition to his motion to enforce the settlement agreement constituted a waiver
of any defense to the motion.
Civ.R. 6(C)(1) governs the time in which briefs must be filed in
response to motions and provides:
Responses to a written motion, other than motions for summary
judgment, may be served within fourteen days after service of the
motion. Responses to motions for summary judgment may be served
within twenty-eight days after service of the motion. A movant's reply
to a response to any written motion may be served within seven days
after service of the response to the motion.
(Emphasis added.)
Where a statute employs the term “may” as opposed to the imperatives
“shall” or “must,” the term ‘may’ is construed as permissive, not mandatory. In re
Ormet Primary Aluminum Corp., 2011-Ohio-2377, ¶ 17, citing State ex rel. Niles v.
Bernard, 53 Ohio St.2d 31, 34 (1978) (“usage of the term ‘may’ is generally construed
to render optional, permissive, or discretionary the provision in which it is
embodied”). Therefore, the defendants were not required to file a brief in response
to the motion to enforce the settlement agreement, and their failure to file a response
brief, by itself, was not a waiver of their defenses to the motion.
Moreover, pursuant to Civ.R. 55(A), if the party against whom default
judgment is sought has appeared in the action, that party must be served with
written notice of the motion for judgment at least seven days prior to a hearing on
the motion. The defendants appeared in this action and filed an answer and
counterclaim. Therefore, they were entitled to written notice of a potential default
before the court could grant such a motion. And since the record is devoid of any
evidence that Alami provided the defendants with written notice of his intent to seek
a default judgment against them, the trial court properly overruled his oral motion
for default.
The first assignment of error is overruled.
B. Settlement Agreement
In the second assignment of error, Alami argues the trial court erred
in its interpretation of the settlement agreement so as to exclude certain items listed
in Exhibit A that were subject to the obligations set forth in the settlement
agreement. In the third assignment of error, Alami argues the trial court’s finding
that he failed to prove his damages is against the manifest weight of the evidence.
We discuss these assigned errors together because they are closely related.
The standard of review applicable to rulings on a motion to enforce a
settlement agreement depends on the question presented. Turoczy Bonding Co. v.
Mitchell, 2018-Ohio-3173, ¶ 15 (8th Dist.); HSBC Bank USA, N.A. v. Rao, 2024-
Ohio-310, ¶ 11-12 (10th Dist.). A settlement agreement is a contract, and if the issue
is a matter of contract law, we determine whether the trial court’s judgment “is based
on an erroneous standard or a misconstruction of the law.” Continental W.
Condominium Unit Owners Assn. v. Howard E. Ferguson, 74 Ohio St.3d. 501, 502
(1996).
When the dispute involves a factual or evidentiary issue, we will not
disturb the trial court’s judgment if it is supported by competent, credible evidence.
Metron Nutraceuticals, L.L.C. v. Thomas, 2022-Ohio-79, ¶ 17 (8th Dist.), citing
Savoy Hospitality, L.L.C. v. 5839 Monroe St. Assocs., L.L.C., 2015-Ohio-4879, ¶ 28
(6th Dist.). This case involves issues of both contract law and fact.
In interpreting contracts, the court’s role is “to give effect to the intent
of the parties to the agreement.” Westfield Ins. Co. v. Galatis, 2003-Ohio-5849, ¶ 11,
citing Hamilton Ins. Servs. v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 273 (1999).
Where the contract terms are clear and unambiguous, we may
determine the parties’ rights and obligations from the plain language of the contract.
Aultman Hospital Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d. 51, 53 (1989).
If the language of a contract is plain and unambiguous, we must enforce the terms
as written, and we may not turn to evidence outside the four corners of the contract
to alter its meaning. Westfield Ins. Co. at ¶ 11.; Aultman Hospital Assn. at 53.
(“Intentions not expressed in the writing are deemed to have no existence and may
not be shown by parol evidence.”).
When considering the language of a particular contractual provision,
“[c]ommon words . . . will be given their ordinary meaning unless manifest absurdity
results or unless some other meaning is clear from the face or overall contents of the
agreement.” Cincinnati Ins. Co. v. Anders, 2003-Ohio-3048, ¶ 34, citing Alexander
v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978), paragraph two of the syllabus.
Alami argues the trial court erred in finding that certain items listed
in Exhibit A were expressly excluded from the terms of the agreement. As previously
stated, the settlement agreement states, in relevant part:
DEFENDANTS agree to return to PLAINTIFF all the property
purchased by DEFENDANTS from Miami University, which is the
subject of the litigation between the parties, to PLAINTIFF, with
exception of a “CHILLER” that was already sold by DEFENDANTS.
This includes any and all equipment and supplies. A copy of the list is
attached hereto as Exhibit A.
The contract terms are plain and unambiguous. The settlement
agreement clearly requires the defendants to turn over to Alami the equipment and
supplies according to the list outlined in Exhibit A. The fourth page of Exhibit A
attached to the settlement agreement plainly states:
Additional item list. WHICH [sic] WERE’NT & ARE’NT INCLUDED
IN SAID AUCTION PURCHASE
I ALI H. ALAMI PICKED UP THESE ITEMS FROM THE
UNIVERSTIY AT NO CHARGE TO ME
Nineteen items are listed under this language. Despite the typographical errors in
the language, it is clear that the 19 items listed on this page are not subject to the
obligations set forth in the settlement agreement because they were not included in
the “auction purchase,” and the defendants were not required to turn these items
over to Alami. Relying on this language, the trial court found that all the items Alami
claimed were missing were listed on the fourth page of Exhibit A and were, therefore,
excluded from the settlement agreement.
However, at the hearing, Alami identified a document introduced into
evidence as “Plaintiff’s Motion Exhibit 2” (“exhibit No.2”). He testified none of the
items listed in exhibit No. 2 were turned over to him. Most of the items listed in
exhibit No. 2 track the descriptions and order of the items listed on the fourth page
of Exhibit A. Moreover, none of these items appear on the first three pages of
Exhibit A that are subject to the terms of the settlement agreement. It is, therefore,
reasonable to infer that they were excluded from the settlement agreement because
they appear solely on the list of excluded items on the fourth page of Exhibit A.
There are, however, four items listed in exhibit No. 2 that are included
in the first three pages of Exhibit A and are not listed on the fourth page. Therefore,
these items were not among the items excluded on the fourth page of Exhibit A.
Those items include a “water disinfection monitor & control system,” a “Wedge
Maestro,” a “sink/packing combo,” and a “packing table.” These items were listed
as item nos. 2, 16, 15, and 14 on pages one and two of Exhibit A. Therefore, the trial
court erred as a matter of law in finding that these items were excluded with the
other items listed on page four of Exhibit A.
Nevertheless, the trial court also found that Alami failed to prove
damages with reasonable certainty. Damages for breach of contract must be proven
with reasonable certainty. KN Excavation L.L.C. v. Rockmill Brewery L.L.C., 2022-
Ohio-3414, ¶ 26 (5th Dist.); Kavalec v. Ohio Express, Inc., 2016-Ohio-5925, ¶ 37
(8th Dist.).
The trial court found that Alami failed to prove his damages with
reasonable certainty because the appraisers who testified regarding the valuation of
the equipment had never seen the equipment and admittedly were not aware of what
condition the equipment was in when it was originally purchased. Alami contends
that the court’s findings are against the manifest weight of the evidence.
In conducting a manifest-weight review of the evidence, we examine
the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses and determine whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of
justice that the judgment must be reversed and a new trial ordered. ABV Corp. v.
Cantor, 2023-Ohio-3363, ¶ 8 (8th Dist.), citing Eastley v. Volkman, 2012-Ohio-
2179, ¶ 20.
In determining whether the judgment is against the manifest weight
of the evidence, a reviewing court should make “every reasonable presumption in
favor of the judgment and the finding of facts.” Eastley at ¶ 20. If the evidence is
prone to more than one construction, we must give it the interpretation that is
consistent with the verdict and judgment and most favorable to sustaining the trial
court’s verdict and judgment. Calabrese Law Firm v. Christie, 2024-Ohio-579, ¶ 41
(8th Dist.), citing Seasons Coal v. Cleveland, 10 Ohio St.3d 77, (1984).
The uncontroverted evidence showed that the parties paid less than
$12,000 for all 18 items listed in the first three pages of Exhibit A and that the items
were sold in an “as is” condition. Yet, Alami claims the missing equipment, which
only accounts for some of the items, was valued at $85,975.00. This value is not
credible based on the amount paid for all the equipment and the fact that Alami’s
appraisers did not know the condition of the equipment because they had never seen
any of it either at the time it was purchased or at any time thereafter.
Alami also failed to prove his claim for damage to the equipment that
the defendants did turn over to him. Although Alami’s appraisers, Regal and Schatz,
testified as to the alleged value of the missing equipment, they did not provide any
testimony regarding the value of the items that were returned to Alami even though
they were available for inspection. Instead, Alami’s lawyer asked Alami to quantify
the diminution in value of the equipment, but he was not qualified as an expert or
appraiser, and he did not provide any basis for his opinion. He simply guessed, “I
think it’s like 70,000, 60,000. I’m not sure.” (Tr. 21.)
Again, the parties paid less than $12,000 for all the equipment.
Alami’s opinion regarding the diminution in value lacks credibility because it was
not based on any expertise or experience, nor was it based on any methodology of
appraisal. Indeed, the claimed loss in value is substantially more than the price paid
to buy all of the equipment.
The trial court erred as a matter of law in excluding certain items from
the terms of the settlement agreement. However, the error was harmless because
Alami failed to establish his claim for damages with reasonable certainty. Civ.R. 61
defines harmless error as follows:
No error in either the admission or the exclusion of evidence and no
error or defect in any ruling or order or in anything done or omitted by
the court or by any of the parties is ground for granting a new trial or
for setting aside a verdict or for vacating, modifying or otherwise
disturbing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.
An error is not prejudicial, i.e., does not affect substantial rights, “if its ‘avoidance
would not have changed the result of the proceedings.’” Goins v. Oliverio, 2010-
Ohio-3849, ¶ 10 (9th Dist.), quoting In re K.B., 2010-Ohio-1015, ¶ 21 (7th Dist.),
citing Fada v. Information Sys. & Networks Corp., 98 Ohio App.3d 785, 792, (2d.
Dist. 1994).
Even if the trial court had properly found that the defendants were
required to return the four items listed in exhibit No. 2 that were also listed on the
first three pages of Exhibit A, Alami failed to establish the value of the missing items
with reasonable certainty. Therefore, the trial court had no basis on which to grant
compensatory damages for the loss of the items and its error in excluding the four
items from the settlement agreement was harmless.
The second and third assignments of error are overruled.
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.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR