Fordyce v. Hattan , 2019 Ohio 3199 ( 2019 )

[Cite as Fordyce v. Hattan, 2019-Ohio-3199.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
SETH FORDYCE, et al. :
:
Plaintiffs-Appellants : Appellate Case No. 28342
:
v. : Trial Court Case No. 2016-CV-5856
:
KENNETH M. HATTAN, et al. : (Civil Appeal from
: Common Pleas Court)
Defendants-Appellees :
:
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OPINION
Rendered on the 9th day of August, 2019.
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BARRY W. MANCZ, Atty. Reg. No. 0011857, 2160 Kettering Tower, Dayton, Ohio 45423
Attorney for Plaintiffs-Appellants
STEPHEN E. KLEIN, Atty. Reg. No. 0014351 and PATRICK J. JANIS, Atty. Reg. No.
0012194, 124 W. Main Street, Troy, Ohio 45373
Attorneys for Defendants-Appellees
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HALL, J.
{¶ 1} The plaintiffs-appellants, Seth Fordyce and Fordyce Finishing Company,
LLC, appeal the trial court’s entry of summary judgment for the defendants-appellees,
Kenneth Hattan and Acquisition Services, LLC, on the appellants’ claims for
misrepresentation. We conclude that there was no justifiable reliance and that the claims
were barred by the applicable statute of limitations, and we affirm the trial court’s
judgment.
I. Facts and Procedural History
{¶ 2} This case involves the sale of a business and the seller’s claim that his broker
misrepresented to him the terms of the sale. The business was Fordyce Finishing
Company, LLC, owned by Seth Fordyce. (We will refer to them collectively as “Fordyce.”)
Fordyce hired Kenneth Hattan and his company, Acquisition Services, LLC, to be his
agent in the sale. (We will refer to them collectively as “Hattan.”) Hattan found a buyer in
Couch Business Development, Inc., and its owner David Couch. (We will refer to them
collectively as “Couch.”)
The negotiations
{¶ 3} On April 1, 2010, Hattan faxed Fordyce an exclusive right-to-sell agency
agreement for Fordyce to sign. Two months later, on June 21, Couch sent Fordyce a
letter of intent to purchase Fordyce’s business for $1.9 million. The letter, which had been
drafted by Couch’s attorney, provided that Fordyce would agree to provide consulting
services for six months after the closing—the first 280 hours at no cost to Couch and
additional hours at $50 per hour. The letter further provided that Fordyce would agree to
“take up to a 15% financial holdback position as required by the lending institution.”
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Fordyce had his attorney, Michael Sandner, review the letter and then Fordyce signed it.
{¶ 4} Couch then used the letter of intent to apply for a loan from Huntington
National Bank. Huntington at first rejected Couch’s application, but later the bank sent
Hattan and Couch an email telling them that the loan application would be reconsidered
if, among other things, Fordyce agreed to finance $515,000 of the purchase price and to
sign a full-term standby agreement that would preclude Fordyce from accepting payments
from Couch until Huntington’s loan was paid in full. There is no dispute that Hattan told
Fordyce about the first requirement, but there is a dispute as to whether Hattan told him
about the full-term standby agreement.
{¶ 5} In September, Huntington sent Couch a Commitment Letter agreeing to lend
him $1,128,000 over 16 years. Fordyce signed a “Statement of Seller’s Intent to Finance,”
stating that he was willing to finance up to $515,000 of the sale over a term of 10 years
and that he was “willing to sign a ‘Stand-by Agreement’ in favor of bank financing
provided.” Fordyce did not have his attorney review the Statement of Intent.
{¶ 6} At the same time, Fordyce’s attorney and Couch’s attorney were drafting,
reviewing, and revising several other agreements relating to the sale, including an Asset
Purchase Agreement (APA) and a Consulting Agreement. Sometime after September 15,
but before the closing, Fordyce and Couch signed the APA, which provided that $515,000
of the $1.9 million purchase price would be paid by a promissory note “payable upon such
terms and conditions to comply with the Purchaser’s banks’ requirements.” (Article
1.3(a)). The APA further provided that for six months after closing, Fordyce, under a
Consulting Agreement attached to the APA, would provide 280 hours of consulting
services at no cost and any additional hours at a rate of $35 per hour. (Article 9). The
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Consulting Agreement was not attached to the APA.
The closing and post-closing
{¶ 7} The closing occurred on November 19, 2010. Fordyce, Hattan, and Couch
were present, but neither Fordyce’s nor Couch’s attorney was. Couch signed a
promissory note to Huntington for $1,128,000. He also signed a promissory note to
Fordyce (Seller Note) for $515,000, plus interest, which included this provision:
This Note shall be subordinate to the Promissory Note of the Huntington
National Bank and shall be payable upon the Promissory Note to Huntington
National Bank being paid in full, and the Maker shall make monthly
installments of $10,000 of principal and interest which shall be paid on the
1st day of each month beginning thirty (30) days from the date that the
Promissory Note to Huntington National Bank has been paid in full, and
shall continue to be paid until the entire unpaid principal balance and
accrued interest has been paid in full.
A draft of the Seller Note was reviewed by Fordyce’s attorney, and Fordyce read the
Seller Note at the closing. For his part, Fordyce signed a “Standby Creditor’s Agreement,”
referred to in the Statement of Intent that he had signed earlier. In the Standby
Agreement, Fordyce agreed, among other things:
1. To accept no further payments on the Standby Loan until Lender’s Loan
is satisfied[.]
***
3. To take no action to enforce claims against Standby Borrower on the
Standby Loan until Lender’s Loan is satisfied.
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***
8. Additional Loans made by Standby Creditor will be subject to the terms
of this Agreement, unless Lender agrees otherwise in writing[.]
{¶ 8} More than a week after the closing, Fordyce and Couch signed the
Consulting Agreement referred to in the APA. 1 The agreement contained the same
consulting terms as the APA but added a payment of $515,000:
(A) COUCH shall pay FORDYCE at the rate of Thirty Five Dollars and
00/100 ($35.00) per hour in excess of the Two Hundred (280) hours
included in the Asset Purchase Agreement in Article 9.
(B) COUCH shall additionally pay Consultant Five Hundred Fifteen
Thousand Dollars and 00/100 ($515,000.00), payable as follows:
(1) No payment shall be required due (sic) until the twenty fifth month
from the date of this Agreement.
(2) The annual payment to FORDYCE shall not exceed 10% of gross
sales of COUCH, unless at the sole discretion of COUCH.
(3) Notwithstanding, the entire balance of the consulting fee shall be
paid with interest thereon at three and nine tenths percent (3.9%) per
annum, paid on or before the 18th day of November, 2020.2
(4) The entire principal balance may be paid at any time without
1 Like the date on the APA, the date on the Consulting Agreement (November 19, 2010)
does not reflect the date that the agreement was actually signed. In an email that Hattan
sent Couch on December 1, 2010, Hattan says that he will see Fordyce the next day and
that he (Hattan) has “copies of the consulting agreement for signing.”
2 This date is six years before the maturity date of the Huntington Note.
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penalty.
According to Couch, the $515,000 payment in the Consulting Agreement was intended
to replace the $515,000 promissory note. The agreement was created by the joint efforts
of Fordyce’s attorney (Sandner) and Couch’s attorney. There were various drafts of this
document reviewed and revised by Sandner on behalf of Fordyce. Fordyce believes that
the Consulting Agreement was part of the sale, but he does not know why it was signed
separately from the other sale documents. Hattan was not involved in drafting the
Consulting Agreement. Hattan exchanged information between Fordyce and Couch but
was not consulting with Fordyce, Couch, or their attorneys about the terms of the
agreement.
{¶ 9} Couch understood the Consulting Agreement violated the bank’s Standby
Agreement. He said that the agreement was a “work-around” substitute for the $515,000
note in order to provide payment to Fordyce before the 16-year note to Huntington Bank
was paid. Couch’s attorney told him this was not unusual and that the agreement could
be structured to comply with the bank agreement. According to Couch, he, Fordyce, and
their attorneys all knew that the Consulting Agreement was a “work around” of the bank
limitations. On October 18, 2010, Fordyce’s attorney, Sandner, sent Fordyce an e-mail
about the agreement in which he told Fordyce: “If it is a ten year agreement then
paragraph 2 has a significant typo (It identifies it as a two year agreement). You don’t get
any money until after two years, and may not get much of anything at that time.” Fordyce
understood Sandner to mean that he was to begin receiving monthly payments after two
years.
{¶ 10} The Seller Note was never cancelled, and the existence of the Consulting
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Agreement was not disclosed to Huntington.
{¶ 11} In the six months that followed the closing, Fordyce provided the 280 hours
of consulting services required by the APA and Consulting Agreement. Two years after
the closing, Couch began making payments to Fordyce under the Consulting Agreement.
But the following year, Couch experienced financial difficulties and began making interest-
only payments. These payments, totaling around $70,000, were reflected in financial
documents provided to Huntington in 2014. When Huntington saw these payments, it
immediately told Couch that the payments were in violation of the Standby Agreement
and that if they were not stopped, Huntington would file suit. The next month, Couch
stopped making the payments to Fordyce.
Fordyce sues
{¶ 12} On November 16, 2016, Fordyce filed suit against Hattan for negligent and
fraudulent misrepresentation and for return of the commission that it had paid him. Hattan
moved to join Couch and Huntington as necessary parties. The motion was unopposed
and the parties were joined. Hattan filed a counterclaim and third-party claims against the
newly-joined parties for declaratory relief as to the interpretation and effect of the Seller
Note, Huntington Note, Standby Agreement, and Consulting Agreement.
{¶ 13} Huntington filed a motion for summary judgment on Hattan’s claims for
declaratory relief, and Hattan filed a motion for summary judgment on Fordyce’s claims.
Hattan argued that there was no genuine dispute that Fordyce’s reliance on Hattan’s
alleged misrepresentations and concealments of fact was not justified. Hattan further
argued that there was no genuine dispute that Fordyce was not damaged by his reliance
on any alleged misrepresentations and concealments of fact. Finally, Hattan argued that
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Fordyce’s claims were not brought within the four-year statute of limitations. In response,
Fordyce argued that Hattan’s status as an agent and fiduciary imposed a duty to disclose
the material facts of the sale, in particular the full-term standby creditor’s agreement, and
that his failure to do so rendered the agreements relating to the sale fraudulent. Fordyce
further argued that his reliance on Hattan’s alleged misrepresentations and concealments
of fact was justified. Finally, Fordyce argued that his claims were brought within four years
of his discovery of Hattan’s alleged misrepresentations and concealments of fact.
{¶ 14} The trial court granted Huntington’s summary-judgment motion and
dismissed Hattan’s claims against it. The court also granted Hattan’s summary-judgment
motion and entered judgment against Fordyce.
{¶ 15} Fordyce appeals.
II. Analysis
{¶ 16} Fordyce presents a single assignment of error for our review:
The Trial Court erred in sustaining Defendants Hattans’ Motion for
Summary Judgment and dismissing Plaintiffs’ Complaint.
Fordyce challenges the trial court’s conclusions on justifiable reliance and the statute of
limitations.
{¶ 17} Summary judgment should be entered when the moving party
demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is
entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in
favor of the nonmoving party, reasonable minds can come to but one conclusion, and that
conclusion is adverse to the party against whom the motion for summary judgment is
made. Civ.R. 56(C); Harless v. Willis Day Warehousing Co., 54 Ohio St. 2d 64, 375 N.E.2d
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46 (1978). We review a trial court’s entry of summary judgment de novo. Kooyman v.
Staffco Constr., Inc., 189 Ohio App. 3d 48, 2010-Ohio-2268, 937 N.E.2d 576, ¶ 13 (2d
Dist.).
A. No justifiable reliance
{¶ 18} In order to prevail on a claim for negligent or fraudulent misrepresentation,
a plaintiff must prove justifiable reliance. Baker v. Northwest Hauling, 6th Dist. Wood No.
WD-02-050, 2003-Ohio-3420, ¶ 17; see also Ajibola v. Ohio Med. Career College, Ltd.,
2d Dist. Montgomery No. 27975, 2018-Ohio-4449, ¶ 15, 31. “Reliance is justifiable if the
representation does not appear unreasonable on its face and if there is no apparent
reason to doubt the veracity of the representation under the circumstances.” AmeriFirst
Sav. Bank v. Krug, 136 Ohio App. 3d 468, 495, 737 N.E.2d 68 (2d Dist.1999). Justifiable
reliance, as contrasted with reasonable reliance, “ ‘is a matter of the qualities and
characteristics of the particular plaintiff, and the circumstances of the particular case,
rather than of the application of a community standard of conduct to all cases.’ ” Id. at
496, quoting Field v. Mans, 516 U.S. 59, 70-71, 133 L. Ed. 2d 351, 116 S. Ct. 437 (1995).
In determining whether there was justifiable reliance, “the court must inquire into the
relationship between the parties. * * * The court must consider the nature of the
transaction, the form and materiality of the representation, the relationship of the parties
and their respective means and knowledge, as well as other circumstances.” (Citations
omitted.) Mishler v. Hale, 2014-Ohio-5805, 26 N.E.3d 1260, ¶ 33 (2d Dist.). While
justifiable reliance is a question of fact, summary judgment is appropriate where the
factual materials, construed in the plaintiff’s favor, do not support a finding of justifiable
reliance. Id. at ¶ 33, 37.
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{¶ 19} Fordyce alleges that Hattan misrepresented when payment on the Seller’s
Note would begin. Fordyce says that he expressed concern to Hattan over the terms of
the Standby Agreement and that Hattan reassured him that the Standby Agreement was
a mere formality and that payment on the Seller Note would commence two years after
the closing, despite the clear, unequivocal prohibition against such payments in the Seller
Note and Standby Agreement. Fordyce says that Hattan told him that if payment did not
begin, he (Fordyce) could take action to enforce his claims against Couch. Fordyce
maintains that he relied on Hattan’s misrepresentation. But Hattan says that he told
Fordyce only that typically a lender in Huntington’s position would do one of three things:
refinance its loan after two years and pay off the seller’s loan, permit payments to be
made on the seller’s loan under a payment schedule, or permit payments to be made
when the borrower’s balance sheet improved. At any rate, says Hattan, Fordyce should
not have relied on his representations.
{¶ 20} There is no dispute that several documents contradicted Hattan’s
representations and that Fordyce signed two of them. Fordyce signed the Asset Purchase
Agreement, which stated that Couch would execute a promissory note “payable upon
such terms and conditions to comply with the Purchaser’s banks’ requirements.” Fordyce
also accepted Couch’s promissory note (Seller Note), which states that it “shall be
subordinate to the Promissory Note of the Huntington National Bank and shall be payable
upon the Promissory Note to Huntington National Bank being paid in full.” Moreover,
Fordyce signed the Standby Creditor’s Agreement, in which Fordyce agreed “[t]o accept
no further payments on the Standby Loan until Lender’s Loan is satisfied” and agreed
“[t]o take no action to enforce claims against Standby Borrower on the Standby Loan until
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Lender’s Loan is satisfied.” Given this evidence, reasonable minds could conclude only
that Fordyce was not justified in relying on Hattan’s representations as to when payment
on the Seller’s Note would begin.
{¶ 21} Before signing, Fordyce had a duty to read the documents and understand
the terms to which he would be bound. Compare Mishler, 2014-Ohio-5805, 26 N.E.3d
1260, at ¶ 36 (saying, in determining justifiable reliance, that it was significant that the
defendant, a licensed real estate salesperson, “had a duty to read the document he
signed and understand that he was bound by its terms”). “[P]arties to contracts are
presumed to have read and understood them and * * * a signatory is bound by a contract
that he or she willingly signed.” Preferred Capital, Inc. v. Power Eng. Group, Inc., 112
Ohio St. 3d 429, 2007-Ohio-257, 860 N.E.2d 741, ¶ 10. “A person of ordinary mind cannot
say that he or she is misled into signing an agreement that is different from the agreement
the person intended to sign, when that person could have ascertained what agreement
he was entering into by merely reading it when he signed it. If a person can read and is
not prevented from reading what he signs, then he alone is responsible for his omission
to read what he signs.” (Citations omitted.) W.K. v. Farrell, 167 Ohio App. 3d 14, 2006-
Ohio-2676, 853 N.E.2d 728, ¶ 20 (2d Dist.); White v. Smedley’s Chevrolet, 2d Dist.
Montgomery No. 26637, 2016-Ohio-968, ¶ 41 (quoting the same). It is a “legal and
common-sensical axiom that one must read what one signs.” ABM Farms v. Woods, 81
Ohio St. 3d 498, 503, 692 N.E.2d 574 (1998). There is no evidence here that Fordyce
could not read the documents or that he was prevented from reading them.
{¶ 22} While there was a principal-agent relationship between Fordyce and Hattan,
Fordyce knew that Hattan was not an attorney, which is why Fordyce had his attorney,
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Sandner, review and revise many of the sale documents. Sandner explicitly warned
Fordyce about the risk posed by the provision in the Seller Note that subordinated the
note to the bank loan, pointing out that payment of the Seller Note “is only conditionally
due upon payment to Huntington.” (September 16, 2010 Letter). Sandner also explained
the possible consequences: “If payment to Huntington is never made, payments never
commence under your Note. This presents a serious risk to you, as technically a default
on the note to Huntington will not only preclude you from being paid, but will preclude you
from being able to claim that those amounts are due.” Sandner told Fordyce that “[a]s this
is a significant issue, I think we should discuss.” Despite this warning from his attorney,
Fordyce chose to proceed with the deal.
{¶ 23} Given the circumstances in this case—particularly that Fordyce signed two
documents that plainly stated that no payment on the Seller Note would be made until the
bank was fully paid and that his attorney pointed out to him this risk—we conclude that
Fordyce was not justified in relying on contrary representations by Hattan, assuming that
they were made as claimed by Fordyce.
B. The statute of limitations has expired.
{¶ 24} Given our conclusion that Fordyce did not prove justifiable reliance, we
need not consider whether the statute of limitations on Fordyce’s claims has run, but we
nevertheless do so briefly.
{¶ 25} Fordyce does not dispute that Hattan’s alleged misrepresentations
occurred, at the latest, on the closing date, November 19, 2010. Nor does Fordyce dispute
that his misrepresentation claims were subject to a four-year statute of limitations. See
R.C. 2305.09(C) and (D); Luburgh v. Bishop, 2d Dist. Montgomery No. 25818, 2014-Ohio-
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236, ¶ 10, fn. 1 (negligent misrepresentation); Kudukis v. Mascinskas, 8th Dist. Cuyahoga
No. 81663, 2003-Ohio-1355, ¶ 15 (fraudulent misrepresentation). Fordyce commenced
this action in 2016. We agree with the trial court that for each misrepresentation claim the
limitations period began on November 19, 2010, and expired four years later in November
2014.
The claim for negligent misrepresentation
{¶ 26} A cause of action for negligent misrepresentation accrues, and the
limitations period begins to run, when the misrepresentation is made. Luburgh at ¶ 10, fn.
1; Flagstar Bank v. Airline Union’s Mtge. Co., 128 Ohio St. 3d 529, 2011-Ohio-1961, 947
N.E.2d 672, ¶ 27 (“A cause of action for professional negligence accrues when the act is
committed.”). Here, Hattan’s alleged misrepresentations occurred, at the latest, on
November 19, 2010. Clearly, the four-year limitations period had expired on Fordyce’s
claim for negligent misrepresentation.
The claim for fraudulent misrepresentation
{¶ 27} Because the discovery rule applies to claims for fraudulent
misrepresentation, a cause of action accrues, and the limitations period begins to run,
when the plaintiff discovers or, through the exercise of reasonable diligence, should have
discovered the fraud. Luburgh at ¶ 14, citing Investors REIT One v. Jacobs, 46 Ohio St. 3d
176, 546 N.E.2d 206 (1989), paragraph 2(b) of the syllabus. “When determining whether
the exercise of reasonable diligence should have discovered a case of fraud, the relevant
inquiry is whether the facts known ‘would lead a fair and prudent man, using ordinary care
and thoughtfulness, to make further inquiry * * *.’ ” Cundall v. U.S. Bank, 122 Ohio St. 3d
188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 29, quoting Hambleton v. R.G. Barry Corp., 12
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Ohio St.3d 179, 181, 465 N.E.2d 1298 (1984). As the Ohio Supreme Court has said, “ ‘the
standard requires only facts sufficient to alert a reasonable person of the possibility of
fraud.’ ” (Emphasis sic.) Id. at ¶ 30, quoting Palm Beach Co. v. Dun & Bradstreet, 106
Ohio App. 3d 167, 171, 665 N.E.2d 718 (1st Dist.1995). “ ‘[C]onstructive knowledge of
facts, rather than actual knowledge of their legal significance, is enough to start the statute
of limitations running under the discovery rule.’ ” (Emphasis sic.) Id., quoting Flowers v.
Walker, 63 Ohio St. 3d 546, 549, 589 N.E.2d 1284 (1992).
{¶ 28} Here, Fordyce, through the exercise of reasonable diligence, should have
discovered the fraud, at the latest, at the closing on November 19, 2010. Before the
closing, Hattan told Fordyce that payments on the Seller Note would begin two years after
the closing. At the closing, Hattan told Fordyce the same thing. But Fordyce knew that
the Asset Purchase Agreement, Seller Note, and Standby Agreement all said that there
would be no payment on the Seller Note until the bank loan was paid. The conflict
between Hattan’s representations (and the Consulting Agreement) and the Asset
Purchase Agreement, Seller Note, and Standby Agreement was sufficient to lead a fair
and prudent man, using ordinary care and thoughtfulness, to make further inquiry into
when payment would begin. Fordyce should have discussed the conflict in the documents
with his attorney.
III. Conclusion
{¶ 29} The trial court did not err by granting summary judgment for Hattan. The
sole assignment of error is overruled, and the trial court’s judgment is affirmed.
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FROELICH, J. and TUCKER, J., concur.
Copies sent to:
Barry W. Mancz
Stephen E. Klein
Patrick J. Janis
Wilburn L. Baker
Jeffrey J. Madison
Hon. Steven K. Dankof