Best Motors, L.L.C. v. Kaba

[Cite as Best Motors, L.L.C. v. Kaba, 2023-Ohio-804.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
BEST MOTORS, LLC, :
Plaintiff-Appellee, :
Nos. 111459 and 111713
v. :
CHEICK KABA, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: March 16, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-935889
Appearances:
Fisher & Phillips, LLP and Komlavi Atsou, for appellee.
Cheick Kaba, pro se.
MICHAEL JOHN RYAN, J.:
Defendant-appellant, Cheick Kaba (“Cheick”), appeals the trial court’s
decision to grant summary judgment in favor of plaintiff-appellee, Best Motors,
LLC. After a thorough review of the law and facts of the case, we reverse the trial
court’s judgment.
According to the complaint filed in this matter, on May 26, 2020,
Cheick contacted Best Motors to inquire about selling a 2019 Toyota Land Cruiser,
VIN JTMCY7AJ4K40771**. Hani Atta (“Atta”), the owner of Best Motors, went to
Cheick’s house on Harvard Road in Cleveland to inspect the vehicle. According to
Atta, Cheick represented that he and his cousin, Bangaly Kaba (“Bangaly”), jointly
owned the vehicle but Bangaly had the vehicle’s certificate of title with him in New
York, where he resided.
The complaint alleges that after inspection, Atta and Cheick agreed on
a sale price of $46,000, but Cheick wanted a deposit. On June 16, 2020, Best Motors
paid a $2,000 cash deposit to Cheick to hold the car until Bangaly returned to
Cleveland with the vehicle’s title. The receipt for the $2,000 was made out to “Ben
Kaba.”
According to Atta, on July 1, 2020, he met with Cheick and Bangaly to
purchase the vehicle. The parties executed a simple bill of sale. Bangaly signed the
bill of sale as the seller, and Atta signed as the buyer on behalf of Best Motors. Best
Motors paid the remaining $44,000 via cashier’s check made out to Bangaly, which
was endorsed by Bangaly and cashed the same day. Bangaly turned over a standard
certificate of title, which listed the owner of the car as “Brandon A Trapp,” with an
address in South Amboy, New Jersey.
Also on July 1, 2020, Best Motors applied for an original certificate of title.
The next day, during the processing of the application, Best Motors was informed
that the vehicle came back as stolen. Atta filed a police report, and the car was seized
by the police.1 According to Atta, he was unable to recover the $46,000 from the
Kabas.
On August 12, 2020, Best Motors filed suit against Cheick and Bangaly
for breach of contract, unjust enrichment, fraud, civil theft, conversion, and civil
conspiracy. As part of the discovery process, Cheick was deposed. During his
deposition, Cheick invoked his Fifth Amendment privilege and refused to answer
questions about his relationship to Bangaly or the vehicle.
Best Motors moved for default judgment against Bangaly, which the
trial court granted. Best Motors moved for summary judgment against Cheick,
which Cheick opposed. In February 2022, the trial court granted Best Motor’s
motion for summary judgment. Best Motors filed an affidavit of damages requesting
$46,000 in compensatory damages, $13,569.50 in attorney fees, $492.80 in costs,
and, extraordinarily, $92,000 in punitive damages. Without a hearing or opinion,
the trial court awarded damages in the amount of $151,972.30, which included
$92,000 in punitive damages.
Cheick filed a timely notice of appeal, pro se, and raises four
assignments of error for review:
I. The Trial Court committed reversible error in granting Summary
Judgment in favor of Plaintiff without complying with the
1 Cheick and Bangaly were charged in Cuyahoga County Common Pleas Court with
three fourth-degree felonies: unauthorized use of a motor vehicle (R.C. 2913.03(A)),
grand theft (R.C. 2913.02(A)(3)), and securing records by deception (R.C. 2913.43).
Cheick pleaded no contest to an amended count of unauthorized use of a motor vehicle, a
first-degree misdemeanor, the remaining counts were nolled, and he was sentenced to
probation. There is an outstanding capias for Bangaly.
requirements of Civ.R. 56 and a factual and legal basis in support of the
Court’s [judgment].
II. The Trial Court abused its discretion in [s]ua [s]ponte denying of
[sic] Appellant’s Civ.R. 60(B) motion to set aside judgment without any
review and consideration to the factual and legal issues raised in
support of motion for relief from [j]udgment.
III. The Trial Court’s [m]onetary award of [j]udgment in the sum of
[$151,972.00] plus an interest of 3% per annum is contrary to law.
IV. The Trial Court erred in denying Appellant’s motion to quash
[j]udgment lien granted by the Court without complying with the
requirement of Ohio Civ.R. 50 and 62.
Law and Analysis
Standard of Review
We review summary judgment rulings de novo, applying the same
standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996). Under Civ.R. 56, summary judgment is appropriate when no
genuine issue exists as to any material fact and, in viewing the evidence most
strongly in favor of the nonmoving party, reasonable minds can reach only one
conclusion that is adverse to the nonmoving party, entitling the moving party
to judgment as a matter of law.
In a motion for summary judgment, the moving party carries an initial
burden of identifying specific facts that demonstrate their entitlement to summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If
the moving party fails to meet this burden, summary judgment is not appropriate;
if the moving party meets this burden, the nonmoving party has the reciprocal
burden to set forth specific facts demonstrating the existence of a genuine issue of
material fact for trial. Id. at 293. Summary judgment is appropriate if the
nonmoving party fails to meet this burden. Id.
As the reviewing court, we evaluate the record in a light most favorable
to the nonmoving party. Pavlick v. Cleveland Hts.-University Hts. Bd. of Edn., 8th
Dist. Cuyahoga No. 101570, 2015-Ohio-179, ¶ 7, citing Saunders v. McFaul, 71 Ohio
App.3d 46, 50, 593 N.E.2d 24 (8th Dist.1990). We resolve any doubts in favor of the
nonmoving party. Pavlick at id., citing Murphy v. Reynoldsburg, 65 Ohio St.3d 356,
358-359, 604 N.E.2d 138 (1992).
Best Motors’ Motion for Summary Judgment
Best Motors submitted the following evidence in support of its motion
for summary judgment:
1. Affidavit of Hani Atta
2. Exhibit 1-A: Receipt for $2,000 deposit to “Ben Kaba”
3. Exhibit 1-B: Bill of Sale - Snowmobile2
4: Exhibit 1-C: U.S. Bank Cashier’s Check for $44,000
5. Exhibit 1-D: Endorsed U.S. Bank Cashier’s Check for $44,000
6. Exhibit 1-E: Certificate of Title, Type: Standard, Title No.
AW788984, dated May 28, 2019
7. Exhibit 1-F: Best Motor’s Application for Certificate of Title to a
Motor Vehicle
8. Exhibit 1-G: Theft report
2 Printed on the face of the bill of sale are the words “Bill of Sale Snowmobile.”
9. Exhibit 1-H: Hani Atta’s Police Statement
10. Exhibit 2: Deposition of Cheick Kaba
Best Motors contends that the above exhibits are uncontroverted
evidence that it contracted with both Cheick and Bangaly to buy the Toyota Land
Cruiser. Best Motors claims that Cheick and Bangaly perpetrated a fraud upon the
company by representing that they jointly and legally owned the vehicle when the
vehicle was stolen and, moreover, the company relied on a false certificate of title for
the vehicle, which appeared on its face to be valid. Best Motors argues that Cheick
was unjustly enriched by the proceeds of the sale of the vehicle and that Cheick
conspired with Bangaly to sell the stolen car to Best Motors.
The documents attached to Best Motors’ motion for summary
judgment do not support its claims. Arguably, the only exhibit that supports Best
Motors’ claims is Atta’s affidavit, in which he averred that it was Cheick who
contacted Best Motors to sell the vehicle. According to Atta, when he went to
Cheick’s house to inspect the vehicle, Cheick represented that he owned the car with
his cousin, Bangaly. Atta further averred that he negotiated the sale price of the
vehicle with Cheick and gave Cheick the $2,000 deposit to hold the car until Bangaly
returned to Cleveland with the car title and extra key. Atta averred that he paid both
Cheick and Bangaly $44,000 for the vehicle via a cashier’s check, both Cheick and
Bangaly cashed the cashier’s check, and both Cheick and Bangaly provided the false
certificate of title to Best Motors.
Exhibit 1-A, the receipt for the $2,000 deposit, was made out to “Ben
Kaba,” not Cheick. Exhibit 1-B, the “Bill of Sale – Snowmobile,” which was the bill
of sale purportedly used in the transaction, listed only Bangaly as the seller and only
Bangaly signed the document as the seller. Exhibits 1-C and 1-D are the U.S. Bank
cashier’s check in the amount of $44,000, payable to “Bangaly Kaba” and endorsed
only by Bangaly.3
Exhibit 1-E, the certificate of title, lists the owner of the Toyota Land
Cruiser as “Brandon A Trapp,” with an address in South Amboy, New Jersey.4 The
type of title is listed on the certificate as “standard.” Likewise, Exhibit 1-F, Best
Motors’ application for an original certificate of title, lists the owner’s name as
Brandon A Trapp with the same New Jersey address.5
Atta’s self-serving affidavit was contradicted by the exhibits attached
to it. Thus, Best Motors has been unable to show that Cheick was present at any
point during the negotiation or sale of the vehicle, upon receipt or deposit of the
$44,000, or that he received any of the proceeds of the sale of the car. Best Motors
also has been unable to show that Cheick had knowledge the vehicle was stolen or
3 Best Motors does not dispute that the cashier’s check was endorsed by Bangaly.
4 Exhibit 1-G purports to show that the 2019 Toyota Land Cruiser had its original
title issued to “Brandon A Trapp” on May 28, 2019, and it was reported stolen in
Connecticut on June 22, 2019. A subsequent title, title number 15375102, was issued in
New Hampshire on December 17, 2019.
5 One could question whether Best Motors should have been on notice that it was
purchasing a false certificate of title.
there would be a problem with the certificate of title, which was in his cousin’s
possession in New York.
Best Motors further claims that Cheick is unable to show a genuine
issue of material fact exists for trial because he refused to answer questions during
his deposition. Best Motors appears to acknowledge Cheick’s right to invoke his
Fifth Amendment privilege but argues that Cheick cannot avoid his obligation under
Civ.R. 56 by asserting the privilege. According to Best Motors, Cheick is attempting
to leverage his refusal to answer deposition questions into a basis for creating a
factual dispute.
Cheick’s decision to invoke his Fifth Amendment privilege at
deposition does not relieve him from his reciprocal burden of demonstrating the
existence of a genuine issue of material fact for trial. Cheick’s reciprocal burden
under summary judgment was to set forth specific facts showing that there is a
genuine issue for trial. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264. He has met
that burden. Moreover, we note that the Supreme Court of Ohio has found that even
in a case where a nonmoving party fails completely to respond to a motion for
summary judgment, “summary judgment is improper unless reasonable minds can
come to only one conclusion and that conclusion is adverse to the nonmoving party.”
State ex rel. Dayton Legal News, Inc. v. Drubert, 2d Dist. Montgomery No. 24825,
2012-Ohio-564, ¶ 7, citing Morris v. Ohio Cas. Ins. Co., 35 Ohio St.3d 45, 47, 517
N.E.2d 904 (1988), citing Toledo’s Great E. Shoppers City, Inc. v. Abde’s Black
Angus Steak House No. III, Inc., 24 Ohio St.3d 198, 201-202, 494 N.E.2d 1101(1986). The burden was on Best Motors to establish the non-existence of any
material factual issues; Best Motors has failed to do so. Simply put, Best Motors’
own evidence establishes questions of fact for trial.
Under these circumstances, construing the evidence in favor of Cheick
as the nonmoving party, we conclude that there are genuine issues of material fact
that preclude summary judgment. Atta’s affidavit and the accompanying exhibits
were insufficient to establish that Best Motors is entitled to judgment as a matter of
law on its claims for breach of contract, unjust enrichment, fraud, civil theft,
conversion, and civil conspiracy. Therefore, the trial court erred in granting
summary judgment in favor of Best Motors.
The first assignment of error is sustained.
Considering the disposition of the first assignment of error, the
remaining assignments of error, which challenged actions the trial court took after
granting summary judgment, are moot.
The judgment award of $151,972 is hereby reversed, and this case is
remanded to the trial court for proceedings consistent with this opinion.
It is ordered that appellants recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
MICHAEL JOHN RYAN, JUDGE
LISA B. FORBES, P.J., and
MARY J. BOYLE, J., CONCUR