Valspar Corp. v. Nguyen , 2012 Ohio 2710 ( 2012 )

[Cite as Valspar Corp. v. Nguyen, 2012-Ohio-2710.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
VALSPAR CORPORATION : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
-vs- :
: Case No. 11 CAE 12 0116
HUNG NGUYEN :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 10 CVH 03
0437
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 13, 2012
APPEARANCES:
For Appellant: For Appellee:
ESTER D. HARBER ANNE LITTLE
4153 Cadillac Ct., Suite E 24 Huber Village Blvd.
Columbus, OH 43232 Westerville, OH 43081
Delaney, P.J.
{¶1} Defendant-Appellant Hung Nguyen appeals the November 29, 2011
judgment of the Delaware County Court of Common Pleas granting the motion for
summary judgment of Plaintiff-Appellee Valspar Corporation.
{¶2} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall be
sufficient compliance with App.R. 12(A) for the statement of the reason
for the court's decision as to each error to be in brief and conclusionary
form.
The decision may be by judgment entry in which case it will not be
published in any form.
This appeal shall be considered in accordance with the aforementioned rule.
FACTS AND PROCEDURAL HISTORY
{¶3} Nguyen was the business manager for Wholesale Autobody Materials
Mobile Outlet, also known as WAMMO, LLC.
{¶4} Valspar is a Minnesota corporation that sells auto paints and equipment.
{¶5} On December 10, 2008, Valspar entered into an agreement with
WAMMO for the supply of goods to WAMMO. In order to secure the agreement,
Nguyen signed a Personal Guaranty Agreement on December 23, 2008. The
Personal Guaranty Agreement establishes the extension of credit from Valspar to
WAMMO in consideration of the Guarantor’s guarantee of payment. Nguyen signed
the Personal Guaranty Agreement as Guarantor. Under the Personal Guaranty
Agreement, Valspar may maintain a right of action against the Guarantor and the
Company jointly, the Company and Guarantor individually, or solely against the
Guarantor.
{¶6} On March 19, 2010, Valspar filed a Complaint for Breach of Contract with
Guarantee in the Delaware County Court of Common Pleas. Valspar named WAMMO
and Nguyen as defendants. Valspar claimed it was owed $47,138.58 for goods and
services credited to the defendants as of June 25, 2009. Nguyen answered the
Complaint and filed a Counterclaim against Valspar. Valspar dismissed the action
against WAMMO on July 21, 2010 without prejudice. The action remained pending
against Nguyen.
{¶7} Valspar filed its motion for summary judgment on November 4, 2010.
Nguyen responded to the motion. On November 29, 2011, the trial court granted
summary judgment in favor of Valspar. The trial court also found Nguyen’s
counterclaim to be moot and dismissed the same.
{¶8} It is from this judgment Nguyen now appeals.
ASSIGNMENTS OF ERROR
{¶9} Nguyen raises two Assignments of Error:
{¶10} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
SUMMARY JUDGMENT IN FAVOR OF APPELLEE AND AGAINST APPELLANT.
{¶11} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING
APPELLANT PERSONALLY LIABLE ON AN UNCONSCIONABLE AND
UNENFORCEABLE GUAURANTY.”
STANDARD OF REVIEW
{¶12} This matter is before the Court upon a ruling on a motion for summary
judgment. 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., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As
such, we must refer to Civ.R. 56(C) which provides, in pertinent part:
Summary judgment shall be rendered forthwith if the pleading,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case and written stipulations of
fact, if any, timely filed in the action, show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment
as a matter of law. * * * A summary judgment shall not be rendered
unless it appears from such evidence or stipulation and only from the
evidence or stipulation, that 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, such party being entitled to have
the evidence or stipulation construed most strongly in the party's favor.
{¶13} Pursuant to the above rule, a trial court may not enter summary
judgment if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio
St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280,
662 N.E.2d 264 (1996).
ANALYSIS
I., II.
{¶14} We will consider Nguyen’s first and second Assignments of Error
together. Nguyen’s argument on appeal focuses on the enforceability of the Personal
Guaranty Agreement. He raises multiple arguments to show there is a genuine issue
of material fact as to whether the Personal Guaranty Agreement is enforceable
against him for the debt of WAMMO. Upon our de novo review, we find reasonable
minds can only conclude Nguyen is personally liable under the terms of the Personal
Guaranty Agreement.
{¶15} A guaranty is a promise by one person to pay the debts of another. 52
Ohio Jurisprudence 3d, Guaranty and Suretyship, Section 3 . We review the Personal
Guaranty Agreement under the law of contracts. It is a fundamental principle in
contract construction that contracts should “be interpreted so as to carry out the intent
of the parties, as that intent is evidenced by the contractual language.” Skivolocki v.
East Ohio Gas Company, 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one
of the syllabus. A reviewing court should give the contract's language its plain and
ordinary meaning unless some other meaning is evidenced within the document.
Alexander v. Buckeye Pipe Line Company, 53 Ohio St.2d 241, 374 N.E.2d 146 (1978).
UNCONSCIONABILITY
{¶16} In his appeal, Nguyen argues the Personal Guaranty Agreement is not
enforceable against him because it contains unconscionable terms. We have
reviewed Valspar’s motion for summary judgment and Nguyen’s response filed in the
trial court. In the trial court briefing, Nguyen did not raise the issue of
unconscionability, but argues it for the first time on appeal. It is well established that a
party cannot raise any new issues or legal theories for the first time on appeal.” Dolan
v. Dolan, 11th Dist. Nos. 2000-T-0154 and 2001-T-0003, 2002-Ohio-2440, at ¶ 7,
citing Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975).
“Litigants must not be permitted to hold their arguments in reserve for appeal, thus
evading the trial court process.” Dover v. Carmeuse Natural Chemicals, 5th Dist. No.
10-CA-8, 2010-Ohio-5657, ¶77 quoting Nozik v. Kanaga, 11th Dist. No. 99-L-193,
2000 WL 1774136 (Dec. 1, 2000). We find that Nguyen therefore has waived review
of this issue by failing to raise it at the trial level.
PROBLEMS WITH THE PERSONAL GUARANTY AGREEMENT
{¶17} Nguyen next contends there are genuine issues of material fact as to the
Personal Guaranty Agreement itself.
{¶18} He first argues the Personal Guaranty Agreement is not enforceable
because it was not properly notarized. Nguyen signed the Personal Guaranty
Agreement. The Personal Guaranty Agreement contains a notary seal, is dated, and
is signed by a public notary. The “State of” and “County of” lines are left blank. “To
be properly executed, a personal guaranty need not be witnessed or notarized but
under the statute of frauds (R.C. 1335.05), it must be a writing which is signed by the
party to be charged.” Scherers Communication Inc. v. Natl. Media Marketing, Inc.,
10th Dist. No. 93APE09-1254, 1994 WL 129912 (Apr. 14, 1994) citing Loveland
Properties v. Ten Jays, Inc., 57 Ohio App.3d 79, 83 (1st Dist.1988). Thus, the
notarization issue does not affect the Personal Guaranty Agreement.
{¶19} Second, Nguyen seems to argue his copy of the Personal Guaranty
Agreement is not the same copy of the Agreement as held by Valspar based on
differences in electronically printed fax numbers on the Agreement attached to various
pleadings as exhibits. We find this argument meritless based on Nguyen’s answer to
Valspar’s Requests for Admissions. In Request No. 18, Nguyen admits he signed the
contract and personal guaranty attached to the complaint and the request as Exhibit
A. Exhibit A is the copy of the Personal Guaranty Agreement provided by Valspar.
Civ.R. 56(C) states, “[s]ummary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.”
CONFLICTING AFFIDAVITS
{¶20} In support of its motion for summary judgment, Valspar attached the
affidavit of David Skelley, a territory sales manager for Valspar. Nguyen attached his
own affidavit to his response to summary judgment. The affidavits factually conflict as
to whether Nguyen was acting on behalf or as an agent of WAMMO when he signed
the Personal Guaranty Agreement. The trial court agreed the “dueling” affidavits could
create a genuine issue of material fact, but concluded those facts did not affect the
claim against Nguyen as to his liability under the Personal Guaranty Agreement as a
matter of law. (Summary Judgment, Nov. 29, 2011.)
{¶21} A contract of guaranty is, “[a] collateral engagement for the performance
of the undertaking of another, and it imports the existence of two different and distinct
obligations -- one being that of the principal debtor and the other that of the guarantor.
The obligation of a guarantor is collateral and secondary to the obligation of the
principal debtor. * * * The principal debtor is not a party to the guaranty, and the
guarantor is not a party to the principal obligation. The undertaking of the former is
independent of the promise of the latter; and the responsibilities which are imposed by
the contract of guaranty differ from those which are created by the contract to which
the guaranty is collateral.” 52 Ohio Jurisprudence 3d, Guaranty and Suretyship,
Section 3, 239-240.
{¶22} The trial court held that any question as to the relationship Nguyen had
with WAMMO when the Personal Guaranty Agreement was entered into was moot in
consideration of the terms of the Personal Guaranty Agreement. We agree. Our
review of the terms of the Personal Guaranty Agreement, relevant law, and law cited
by the parties demonstrate there is no genuine issue of material fact as to Nguyen’s
liability under the Personal Guaranty Agreement.
{¶23} Nguyen’s first and second Assignments of Error are overruled.
CONCLUSION
{¶24} Based on our de novo review, we find that reasonable minds could only
conclude Nguyen to be liable under the terms of the Personal Guaranty Agreement.
Nguyen’s first and second Assignments of Error are overruled.
{¶25} The judgment of the Delaware County Court of Common Pleas is
affirmed.
By: Delaney, P.J.
Gwin, J. and
Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
PAD:kgb
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
VALSPAR CORPORATION :
:
Plaintiff - Appellee : JUDGMENT ENTRY
:
:
-vs- :
: Case No. 11 CAE 12 0116
HUNG NGUYEN :
:
Defendant - Appellant :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN