978-1285770178 Case Printout Case CPC-12-07

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Slip Copy, 2011 WL 303253 (Ohio App. 5 Dist.), 2011 -Ohio- 297

(Cite as: 2011 WL 303253 (Ohio App. 5 Dist.))

CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AU-

THORITY.

Court of Appeals of Ohio,

Fifth District, Knox County.

Wayne GALLWITZ, Executor of the Estate of Glen Gallwitz, Plaintiff-Appellee

Abby NOVEL, Defendant-Appellant.

No. 10-CA–10.

Decided Jan. 24, 2011.

(2) note was complete, even though it did not contain any schedule or time for repayment;

(3) acceptance of note was accomplished and valid contract was formed; and

(4) parol evidence rule barred the use of alleged contemporaneous oral statements to vary, contradict or supplement

the note.

56XI Actions

56k441 Right of Action

56k443 Title to Sustain Action

56k443(1) k. In General. Most Cited Cases

Where maker of note was the holder of note and died after filing action to recover, maker‘s estate was the holder

56VI Negotiability

56k155 k. Certainty as to Time of Payment. Most Cited Cases

Bills and Notes 56 157

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56k156 Certainty as to Amount Payable

56k157 k. In General. Most Cited Cases

gotiable instrument, even though note did not contain any schedule or time for repayment; note would be payable on

demand. R.C. §§ 1303.03(A), 1303.07(A).

[3] Bills and Notes 56 68

ered to maker. R.C. § 1303.46.

[4] Evidence 157 402

157 Evidence

Civil Appeal from Knox County, Court of Common Pleas, Case No. 09T06-0361.William Douglas Lowe, Reese,

Pyle, Drake & Meyer, P.L.L., Newark, OH, for plaintiff-appellee.

Abby Novel, Utica, OH, for defendant-appellant.

{¶ 2} On or about January 1, 2008, appellant Abby Novel executed a note stating that Glen Gallwitz, her stepfa-

ther, had loaned her $5,000.00 at 6% interest for a total of $10,000.00. Subsequently, on June 24, 2009, Gallwitz

filed a complaint against appellant, demanding judgment against her in the amount of $10,000.00 plus interest.

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{¶ 3} On July 22, 2009, appellant filed an answer. Appellant, in her answer, claimed that the money given to

Glen Gallwitz back, but was told that she did not have to do so because she had taken care of Gallwitz during his

senior years and because her mother, Carrie Gallwitz, had allowed Gallwitz’s grandson to live rent-free at a rental

home owned by Carrie in Columbus. Appellant, in her answer, alleged that she had written out the loan note on her

own initiative.

{¶ 4} After Glen Gallwitz died on July 2, 2009, his son appellee Wayne Gallwitz, the Executor of Glen Gall-

summary judgment. Appellant, in the affidavit attached to her motion, stated, in relevant part, as follows:

{¶ 6} “3. The money given to me on January 8, 2002 by Glen Gallwitz was a gift and repayment was waived.

{¶ 7} “4. The money given to me was used to manufacture a patented jewelry display design.

had been good to him by helping to take care of him during his senior years including taking him to the doctor, tak-

ing him out for dinner & shopping and helping around the house.

{¶ 10} “7. On January 8, 2002 Glen Gallwitz also stated that the money he gave me was a gift because my

Mother, Carrie Gallwitz, allowed Glen Gallwitz’s grandson to live for free for several years at my Mother’s rental

the amount of $14,980.82. The trial court also granted appellee post-judgment interest.

{¶ 13} Appellant now raises the following assignments of error on appeal:

{¶ 14} “I. THE LOWER COURT ERRER (SIC) IN RULING PLAINTIFF-APPELLEE HAD A RIGHT TO

RECOVERY BASED ON HOLDER IN DUE COURSE STATUS.

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{¶ 16} “III. THE LOWER COURT ERRER (SIC) IN NOT GRANTING SUMMARY JUDGMENT TO DE-

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 there-

from, 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 con-

strued most strongly in the party’s favor.* * * ”

party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77

Ohio St.3d 421, 429, 1997-Ohio-259, 674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107,

662 N.E.2d 264.

{¶ 19} It is pursuant to this standard that we review appellant’s assignments of error.

strument] is admitted or proved and there is compliance with division (A) of this section, a plaintiff producing the

instrument is entitled to payment if the plaintiff proves entitlement to enforce the instrument under Section 1303.31

of the Revised Code, unless the defendant proves a defense or claim in recoupment. If the defendant proves a de-

fense or claim in recoupment, the right to payment of the plaintiff is subject to the defense or claim, except to the

extent the plaintiff proves that the plaintiff has rights of a holder in due course that are not subject to the defense or

time the case sub judice was filed. Appellant does not dispute that she signed the note. Glen Gallwitz was, therefore,

the holder of the note and, upon production, was entitled to recover on the same unless appellant provided any de-

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fenses. While appellant cites to R.C. 1303 .03(C) in arguing that appellee Wayne Gallwitz, as Executor to his fa-

ther’s estate, is not a holder in due course, as noted by appellee, “Glen Gallwitz and his estate is the holder so the

[2] {¶ 25} Appellant, in her brief, argues as a defense that the handwritten note was incomplete. The note spe-

cifically stated as follows: “Glen Gallwitz 1-8-2002 loaned me $5,000 at 6% interest a total of $10,000.00” and was

signed by appellant. Admittedly, the note does not contain any schedule or time for repayment. However, where no

time for payment is stated on the instrument, an instrument is payable upon demand. R.C. 1303.07(A); Raniere v.

Terzano (1983), 8 Ohio App.3d 438, 457 N.E.2d 906. Thus, the note was payable on demand. Moreover, R.C.

{¶ 28} “(3) It does not state any other undertaking or instruction by the person promising or ordering payment

to do any act in addition to the payment of money, …”

{¶ 29} In the case sub judice, the note contains an unconditional promise to pay a fixed amount of money, is

payable on demand, only requires the payment of money and is payable “to bearer or to order.” R.C. 1303.03(A).

have a “viable formation of contract defense.” Appellant specifically argues that there was no contract because Glen

Gallwitz never accepted her offer to repay him the $10,000.00, because there was no meeting of the minds as to re-

payment and because the note did not contain clear and definite terms.

[3] {¶ 33} “Acceptance” is the “drawee‘s signed agreement to pay the draft as presented.” R.C. 1303.46(A). The

acceptance must be noted on the draft and may consist of a signature. Id. R.C. 1303.46 further provides that ac–

there has been an acceptance of the note. The acceptance became operative when signed by appellant and delivered

to Glen Gallwitz.

[4] {¶ 34} Appellant also argues that there was no meeting of the minds because, on January 8, 2002, which is

the date the note was signed, Glen Gallwitz contemporaneously told her that she did not have to repay him and that

the money was a gift because she had been good to him and because appellant‘s mother, Carrie Gallwitz, had al-

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agreement may not be varied, contradicted or supplemented by evidence of prior or contemporaneous oral agree-

ments, or prior written agreements.’ “ Galmish v. Cicchini, 90 Ohio St.3d 22, 27, 2000-Ohio-7, 734 N.E.2d 782,

(quoting 11 Williston on contracts (4th Ed.1999) 569-570, Section 33:4). Appellant does not allege that the there

906. The note, therefore, was payable on demand.

{¶ 36} Appellant’s second assignment of error is, therefore, overruled.

III

{¶ 37} Appellant, in her third assignment of error, argues that the trial court erred in not granting summary

judgment in her favor.

{¶ 39} However, based on the disposition of appellant’s first and second assignments of error and construing the

evidence in the non-moving party’s favor we find that the undisputed facts demonstrate that Glen Gallwitz loaned

appellant $10,000.00 at 6% interest, that appellant signed a note to such effect, that Glen Gallwitz accepted the note

and that appellant failed to repay the money. We further find that appellant has failed to prove any defenses to re-

payment. We find, therefore, that appellee was entitled to judgment against appellant as a matter of law.

Gallwitz v. Novel

Slip Copy, 2011 WL 303253 (Ohio App. 5 Dist.), 2011 -Ohio- 297

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