[Cite as Gallwitz v. Novel, 2011-Ohio-297.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
WAYNE GALLWITZ, EXECUTOR OF                    :   Julie A. Edwards, P.J.
THE ESTATE OF GLEN GALLWITZ                    :   W. Scott Gwin, J.
                                               :   John W. Wise, J.
                          Plaintiff-Appellee   :
                                               :   Case No. 10-CA-10
-vs-                                           :
                                               :
                                               :   OPINION
ABBY NOVEL

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Civil Appeal from Knox County
                                                    Court of Common Pleas Case No.
                                                    09T06-0361

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             January 24, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

WILLIAM DOUGLAS LOWE                                ABBY NOVEL
Reese, Pyle, Drake & Meyer, P.L.L.                  301 North Main Street
36 North 2nd Street                                 P.O. Box 416
P.O. Box 919                                        Utica, Ohio 43080
Newark, Ohio 43058-0919
[Cite as Gallwitz v. Novel, 2011-Ohio-297.]


Edwards, P.J.

        {¶1}     Defendant-appellant Abby Novel appeals from the May 3, 2010 Judgment

Entry of the Knox County Court of Common Pleas denying her Combined Motion to

Dismiss and for Summary Judgment and granting the Motion for Summary Judgment

filed by plaintiff-appellee Wayne Gallwitz, Executor of the Estate of Glen Gallwitz.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     On or about January 1, 2008, appellant Abby Novel executed a note

stating that Glen Gallwitz, her stepfather, 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.

        {¶3}     On July 22, 2009, appellant filed an answer. Appellant, in her answer,

claimed that the money given to her on January 8, 2002 by Glen Gallwitz was a gift.

Appellant further alleged that, on such date, she offered to pay 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 Gallwitz’s estate, was substituted as the party plaintiff.

        {¶5}     Appellant, on February 18, 2010, filed a Combined Motion to Dismiss and

for Summary Judgment. Appellant, in her motion, alleged that a binding contract was

not formed because there was no acceptance of the note by Glen Gallwitz and no

meeting of the minds, and because there were no certain and definite terms as to
Knox County App. Case No. 10-CA-10                                                      3


repayment in the note. Appellant also alleged that even if a binding contract was

formed, a novation was created. Finally, appellant contended that the undisputed facts

demonstrated that she was entitled to a dismissal of appellee’s action and 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.

       {¶8}   “5. On January 8, 2002 I offered to pay Glen Gallwitz the money back after

I manufactured and sold the first one thousand (1,000) jewelry display units and wrote

the loan note offer out for Glen Gallwitz on my own initiative.

       {¶9}   “6. On January 8, 2002 Glen Gallwitz told me that I did not have to pay the

money back to him because I had been good to him by helping to take care of him

during his senior years including taking him to the doctor, taking 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 home on Ohio State campus in

Columbus, Ohio.”

       {¶11} In response, appellee, on March 12, 2010, filed a Combined Motion for

Summary Judgment and memorandum in opposition to appellant’s motion.
Knox County App. Case No. 10-CA-10                                                         4


       {¶12} Pursuant to a Judgment Entry filed on May 3, 2010, the trial court denied

appellant’s motion while granting that filed by appellee. The trial court granted appellee

judgment against appellant in the amount of $10,000.00 plus prejudgment interest in the

amount of $4,980.82 as of April 28, 2010, for a total judgment against appellant in 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.

       {¶15} “II. THE LOWER COURT ERRED IN RULING DEFENDANT-APPELLANT

DID NOT HAVE A VIABLE FORMATION OF CONTRACT DEFENSE.

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

JUDGMENT TO DEFENDANT-APPELLANT.”

       {¶17} 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. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, we must refer to Civ.R. 56 which provides, in pertinent part: “* * * Summary

judgment shall be rendered forthwith if the pleadings, 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 therefrom, that reasonable minds
Knox County App. Case No. 10-CA-10                                                         5


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. * * * ”

         {¶18} Pursuant to the above rule, a trial court may not enter a summary

judgment if it appears a material fact is genuinely disputed. The party moving for

summary judgment bears the initial burden of informing the trial court of the basis for its

motion and identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact. The moving party may not make a conclusory assertion

that the non-moving party has no evidence to prove its case. The moving party must

specifically point to some evidence which demonstrates the non-moving party cannot

support its claim. If the moving party satisfies this requirement, the burden shifts to the

non-moving 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.

                                                  I

         {¶20} Appellant, in her first assignment of error, argues that the trial court erred

in holding that appellee had a right to recovery based on holder in due course status.

         {¶21} Both parties cite to R.C. Chapter 1303, which concerns commercial paper.

R.C. 1303.31(A)(1) provides that the “holder” of the instrument is entitled to enforce

the same. By definition, “if the instrument is payable to an identified person,” the
Knox County App. Case No. 10-CA-10                                                          6


“holder” is the identified person when in possession of the instrument. R.C.

1301.01(T)(1).

       {¶22} R.C. 1303.36 states, in relevant part, as follows: “(B) … If the validity of

signatures [on a negotiable instrument] 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 defense 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 claim.”

       {¶23} “Generally, the holder of a negotiable instrument * * * establishes a prima

facie case for payment on a note where the note is placed in evidence and the makers'

signature(s) is (are) admitted.” Dryden v. Dryden (1993), 86 Ohio App.3d 707, 711, 621

N.E.2d 1216, 1219, citing R.C. 1303.36(B).

       {¶24} As noted by appellee, Glen Gallwitz was the party in possession of the

note executed by appellant at the 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 defenses.       While appellant cites to R.C. 1303.03(C) in arguing that

appellee Wayne Gallwitz, as Executor to his father’s estate, is not a holder in due

course, as noted by appellee, “Glen Gallwitz and his estate is the holder so the entire

issue is irrelevant.”
Knox County App. Case No. 10-CA-10                                                        7


       {¶25} Appellant, in her brief, argues as a defense that the handwritten note was

incomplete. The note specifically 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. 1303.03(A) defines a negotiable

instrument as    “an unconditional promise to pay a fixed amount of money, with or

without interest or other charges …, if it meets all of the following requirements:

       {¶26} “(1) It is payable to bearer or to order…

       {¶27} “(2) It is payable on demand or at a definite time.

       {¶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). The note was, therefore, a

negotiable instrument.

       {¶30} In short, we find that the trial court did not err in holding that appellee had

a right to recovery as a holder of the note.

       {¶31} Appellant’s first assignment of error is, therefore, overruled.

                                                 II

       {¶32} Appellant, in her second assignment of error, argues that the trial court

erred in holding that she did not have a “viable formation of contract defense.” Appellant
Knox County App. Case No. 10-CA-10                                                      8


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

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

      {¶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 acceptance “becomes

effective when notification is given pursuant to instructions or the accepted draft is

delivered for the purpose of giving rights on the acceptance to any person.” Pursuant to

R.C. 1303.46(B) a draft may be accepted although it has not been signed by the

drawer. R.C. 1303.01(A)(2) defines “drawee” as meaning a person ordered in a draft to

make payment and R.C. 1303.01(A)(3) defines “drawer” as “a person who signs or is

identified in a draft as a person ordering payment.” Thus, appellant was the drawee and

was required to sign the note which she does not dispute was delivered to Glen

Gallwitz, who was the person identified in the draft (note) as ordering payment.    Thus,

there has been an acceptance of the note. The acceptance became operative when

signed by appellant and delivered to Glen Gallwitz.

      {¶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 allowed Glen Gallwitz’s grandson to live rent-free at Carrie’s house near

the Ohio State University. “The parole evidence rule states that ‘absent fraud, mistake

or other invalidating cause, the parties' final written integration of their agreement may
Knox County App. Case No. 10-CA-10                                                      9


not be varied, contradicted or supplemented by evidence of prior or contemporaneous

oral agreements, 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 was fraud, mistake or other

invalidating clause. Appellant, therefore, cannot use Glen Gallwitz’s alleged

contemporaneous oral statements to her to vary, contradict or supplement the note,

which clearly states that Glen Gallwitz loaned, rather than gifted, the money to her.

      {¶35} Finally, appellant contends that the note is not enforceable because there

are no certain and definite terms as to repayment. However, as is stated above, 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. 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.

      {¶38} Appellant specifically contends that her Motion for Summary Judgment

should have been granted because appellee was not a holder in due course and did not

have an automatic right to recovery by simply presenting the note and other evidence

and because appellee failed to submit any evidence to show an acceptance of the note,

a meeting of the minds and certain and definite contract terms. Appellant further argues

that the trial court should have granted her motion because reasonable minds could

only conclude that the money given to her by Glen Gallwitz was a gift, not a loan.
Knox County App. Case No. 10-CA-10                                                     10


      {¶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 repayment.        We find, therefore, that

appellee was entitled to judgment against appellant as a matter of law.

      {¶40} Appellant’s third assignment of error is, therefore, overruled.

      {¶41} Accordingly, the judgment of the Knox County Court of Common Pleas is

affirmed.



By: Edwards, P.J.

Gwin, J. and

Wise, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                                JUDGES

JAE/d1005
[Cite as Gallwitz v. Novel, 2011-Ohio-297.]


                 IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


WAYNE GALLWITZ, EXECUTOR OF                       :
THE ESTATE OF GLEN GALLWITZ                       :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
ABBY NOVEL                                        :
                                                  :
                        Defendant-Appellant       :       CASE NO. 10-CA-10




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Knox County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
