[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
