[Cite as Taylor v. Taylor-Wilson Dev. Co., Inc., 2013-Ohio-1954.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            FAYETTE COUNTY




MICHAEL E. TAYLOR,                                       :
                                                                    CASE NO. CA2012-08-026
         Plaintiff-Appellee,                             :
                                                                         OPINION
                                                         :                5/13/2013
    - vs -
                                                         :

TAYLOR-WILSON DEVELOPMENT                                :
CO., INC.,
                                                         :
         Defendant-Appellant.
                                                         :



         CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                             Case No. 11CVH00341


Stephen A. Moyer, 9 East Kossuth Street, Columbus, Ohio 43206, for plaintiff-appellee

Ray A. Cox, 265 Regency Ridge Drive, Dayton, Ohio 45459, for defendant-appellant



         M. POWELL, J.

         {¶ 1} Defendant-appellant, Taylor-Wilson Development Company, Inc., appeals from

the decision of the Fayette County Common Pleas Court granting summary judgment to

plaintiff-appellee, Michael E. Taylor, on his action seeking enforcement of a promissory note

issued to him by the company. For the reasons that follow, we affirm the judgment of the trial

court.

         {¶ 2} In 1993, Taylor and his wife, Bonnie Taylor (Bonnie), along with their friends,
                                                                      Fayette CA2012-08-026

Jim Wilson (Wilson) and his wife, Connie J. Wilson (C.J.), created Taylor-Wilson

Development Company, Inc. (T-WDCI), a residential real estate development company.

Taylor, Bonnie, Wilson and C.J. were each 25 percent shareholders of T-WDCI. Taylor was

the company's president and handled its day-to-day operations, while Wilson handled its

finances.

       {¶ 3} In December 2003, Taylor was indicted for various sex crimes involving minors.

Sometime in early or mid-2004, T-WDCI's shareholders met with the company's corporate

counsel, William Junk (Attorney Junk), who was also Taylor's personal attorney. At that time,

Taylor advised the other shareholders that a civil suit arising from the charges against him

was imminent and that he had retained Attorney David Whittaker (Attorney Whittaker) to

represent him in the impending civil action. Taylor told the shareholders that Attorney

Whittaker advised him that, in order to eliminate any threat to T-WDCI or the possibility of the

other shareholders becoming involved in the civil action, it would be in the best interests of

the company and its shareholders for Taylor to divest himself of his stock in T-WDCI and

eliminate his involvement with the corporation. The shareholders agreed that Taylor would

sell back his shares to T-WDCI.

       {¶ 4} In November 2004, Taylor pled guilty to three counts of sexually abusing

children, and in December 2004, he was sentenced to nine years in prison. On the day

Taylor was sent to prison (December 16, 2004), he signed a "Stock Purchase Agreement,"

prepared by Attorney Junk. In May 2005, T-WDCI, through its remaining shareholders,

Bonnie, Wilson and C.J., signed the stock purchase agreement and a promissory note in

favor of Taylor, and Taylor executed an "Assignment of Stock" in favor of T-WDCI. The

stock purchase agreement, promissory note and assignment of stock were back-dated to

January 1, 2005.

       {¶ 5} The promissory note provided that T-WDCI owed Taylor $93,590.75 for his
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                                                                    Fayette CA2012-08-026

shares in T-WDCI, with simple interest at five percent per annum. Taylor was to be paid the

accrued interest every six months, commencing on July 1, 2005. The principal was to be

paid in full upon corporate dissolution but not later than January 1, 2015. The promissory

note also had an acceleration clause which provided that, in the event of nonpayment of any

installment of interest due under the agreement, the entire balance of principal then

remaining unpaid, along with any accrued interest thereon, shall at once become due and

payable at Taylor's option, without notice or demand.

      {¶ 6} In July 2005, T-WDCI began making interest payments on the note every six

months and continued making such payments to Taylor until July 2010. On February 9,

2009, Bonnie, Wilson and C.J. sent Taylor a letter, asking him to forgive the balance due on

the promissory note because of the state of the economy and other circumstances beyond

their control. Taylor refused their request. When T-WDCI failed to make an interest payment

on July 1, 2011, Taylor demanded payment under the promissory note's acceleration clause.

When T-WDCI refused payment, Taylor filed suit against the company in the Fayette County

Common Pleas Court, seeking enforcement of the promissory note.

      {¶ 7} Taylor moved for summary judgment on his claim.                 T-WDCI, in its

memorandum in opposition, argued it should not be found liable on the promissory note,

because, among other things, Taylor had fraudulently induced T-WDCI's remaining

shareholders to sign the stock purchase agreement and promissory note as a result of

Taylor's false claims of innocence on the child molestation charges. In support of its

argument, T-WDCI presented affidavits from Bonnie, Wilson and C.J. who averred that (1)

Taylor's decision to eliminate his involvement with T-WDCI by divesting himself of his shares

of stock in the company was meant to be a "temporary fix" that was to last only "until the

whole thing blew over"; (2) Taylor had represented to them that the temporary divestment

was not "a money maker for him" and that he did not expect to be paid on the promissory

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                                                                      Fayette CA2012-08-026

note; and (3) Taylor had declared, on numerous occasions, that he was innocent of all

charges filed against him.

       {¶ 8} The trial court granted summary judgment to Taylor on his breach-of-contract

claim on the promissory note after determining that (1) the parties' stock purchase

agreement, promissory note and assignment of stock "are clear and unambiguous"; (2) the

parol evidence rule precluded T-WDCI from presenting any evidence of an alleged oral

agreement between the parties that Taylor would not seek payment on the promissory note;

(3) "[n]o exception to the parol evidence rule exists [that] would afford any relief to [T-WDCI]

under the facts of this case"; and (4) "[a]ssuming such an exception exists, [T-WDCI's] action

to void the [stock purchase and assignment of stock] agreements and promissory note are

[sic] barred by the applicable statute of limitations." The trial court also found that the

"protestations of innocence" that Taylor allegedly made to T-WDCI"are immaterial."

Consequently, the trial court awarded summary judgment in favor of Taylor and against T-

WDCI in the principal amount of $93,590.75 plus interest of $2,339.77 as of July 1, 2011.

       {¶ 9} T-WDCI now appeals, assigning the following as error:

       {¶ 10} "THE TRIAL COURT ERRED BY GRANTING APPELLEE'S (TAYLOR)

MOTION FOR SUMMARY JUDGMENT." [Sic.]

       {¶ 11} T-WDCI argues the trial court erred in granting summary judgment in favor of

Taylor because (1) there are a number of genuine issues of material fact remaining to be

litigated, which make the award of summary judgment to Taylor inappropriate; (2) the parol

evidence rule is inapplicable to bar the evidence T-WDCI submitted to prove its affirmative

defenses of fraudulent inducement and duress; and (3) T-WDCI's affirmative defenses of

fraudulent inducement and duress are not barred by the statute of limitations applicable to

those claims.



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                                                                        Fayette CA2012-08-026

       {¶ 12} As we have recently stated in Wells Fargo v. Smith, 12th Dist. No. CA2012-04-

006, 2013-Ohio-855, ¶ 25:

              Summary judgment is appropriate when there are no genuine
              issues of material fact to be litigated, the moving party is entitled
              to judgment as a matter of law, reasonable minds can come to
              only one conclusion, and that conclusion is adverse to the
              nonmoving party.        Civ.R. 56(C); Williams v. McFarland
              Properties, L.L.C., 177 Ohio App.3d 490, 2008-Ohio-3594, ¶ 7
              (12th Dist.). To prevail on a motion for summary judgment, the
              moving party must be able to point to evidentiary materials that
              show there is no genuine issue as to any material fact and that
              the moving party is entitled to judgment as a matter of law.
              Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The nonmoving
              party must then present evidence that some issue of material
              fact remains to be resolved; it may not rest on the mere
              allegations or denials in its pleadings. Id. All evidence submitted
              in connection with a motion for summary judgment must be
              construed most strongly in favor of the party against whom the
              motion is made. Morris v. First Natl. Bank & Trust Co., 21 Ohio
              St.2d 25, 28 (1970).

       {¶ 13} Initially, we agree with T-WDCI that the trial court erred when it found that the

company's "action to void the [the stock purchase and assignment of stock] agreements and

promissory note are [sic] barred by the applicable statute of limitations[,]" because T-WDCI

used its allegations of fraudulent inducement and duress defensively rather than offensively,

and therefore, the statute of limitations that the trial court found to be applicable in this case,

i.e., R.C. 2305.09, is inapplicable to this case. Summers v. Connolly, 159 Ohio St. 396, 404

(1953); In re Butler's Estate, 137 Ohio St. 96, paragraph five of the syllabus (1940).

However, the error was clearly harmless under Civ.R. 61 since the trial court's erroneous

finding that T-WDCI's claims for fraudulent inducement and duress are barred by the statute

of limitations served only as an alternative basis for its decision to grant summary judgment

to Taylor.

       {¶ 14} We also note, as a threshold matter, that T-WDCI has raised two, primary

defenses to Taylor's breach-of-contract claim regarding the promissory note: (1) Taylor, by


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                                                                    Fayette CA2012-08-026

his false protestations of innocence regarding the child molestation charges against him,

fraudulently induced T-WDCI, through its remaining shareholders, to execute the promissory

note in his favor; and (2) the parties' contract, which is comprised of their stock purchase

agreement, promissory note and assignment of stock, was not intended or understood by

either party to be a binding contract. In furtherance of these two arguments, T-WDCI sets

forth nine issues of material fact that, T-WDCI alleges, should have precluded the trial court

from granting summary judgment to Taylor on his breach-of-contract claim on the promissory

note:

              1. Did Taylor represent to [T-WDCI] through its shareholders
              that he (Taylor) was innocent?

              2. Did Taylor represent to [T-WDCI] through its shareholders
              that he (Taylor) was only selling his shares as a "temporary fix"
              pending victims' claims?

              3. Did Taylor represent or imply to [T-WDCI] through its
              shareholders that he (Taylor) was not to be repaid?

              4. Were those representations material?

              5. Did [T-WDCI] through its shareholders reasonable [sic] rely
              upon said representations?

              6. Were the representations made by Taylor false?

              7. Did Taylor acknowledge that said representations were false?

              8. Was shareholder Bonnie's (wife of Taylor) signature, to the
              promissory note obtained by duress?

              9. Do the facts of this case fall within the absolute defenses [of
              fraudulent inducement and duress in] * * *1305.35 (A)(1)(b)(c)
              O.R.C.?

        {¶ 15} As to T-WDCI's "duress" defense in items 8 and 9, which is based on Bonnie's

claims that Taylor "was always verbally abusive of me and required me to sign all documents

he gave me[,]" we agree with Taylor that T-WDCI waived this defense by failing to raise it in

its answer to Taylor's amended complaint, as required by Civ.R. 8(C). Civ.R. 8(C) provides

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that duress is an affirmative defense. Therefore, under that rule, T-WDCI was required to

raise its duress defense in its answer to Taylor's amended complaint.                  T-WDCI

acknowledged during oral arguments that it failed to do so, and therefore, it has waived this

defense.

       {¶ 16} Nevertheless, T-WDCI argues the trial court erred in finding that the evidence it

submitted to prove the remaining items of alleged material fact was inadmissible under the

parol evidence rule. T-WDCI asserts that the parol evidence rule does not bar parol or

extrinsic evidence, such as the affidavit and deposition testimony of Bonnie, Wilson and C.J.,

from being admitted to prove a claim of fraudulent inducement. T-WDCI also asserts that

because the affidavit and deposition testimony of Bonnie, Wilson and C.J. was admissible, a

genuine issue of material fact exists as to whether the parties' contract, which is comprised of

their stock purchase agreement, promissory note and assignment of stock, was intended or

understood by either party to be a binding contract, or stated another way, whether the

parties' contract was the complete and accurate integration of their agreement. We find

these arguments unpersuasive.

       {¶ 17} In Galmish v. Cicchini, 90 Ohio St.3d 22, 27, 28 (2000), the court discussed the

parol evidence rule, as follows:

              The parol evidence rule states that "absent fraud, mistake or
              other invalidating cause, the parties' final written integration of
              their agreement may not be varied, contradicted or
              supplemented by evidence of prior or contemporaneous oral
              agreements, or prior written agreements." 11 Williston on
              Contracts (4 Ed.1999) 569-570, Section 33:4. Despite its name,
              the parol evidence rule is not a rule of evidence, nor is it a rule of
              interpretation or construction. Charles A. Burton, Inc. v. Durkee
              (1952), 158 Ohio St. 313, 324, 49 O.O. 174, 179, 109 N.E.2d
              265, 270. "The parol evidence rule is a rule of substantive law
              which, when applicable, defines the limits of a contract." Id.,
              paragraph one of the syllabus.

              As summarized by the Supreme Court of California in In re
              Gaines' Estate (1940), 15 Cal.2d 255, 264-265, 100 P.2d 1055,
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                                                                      Fayette CA2012-08-026

              1060:

              The parol evidence rule, as * * * applied to contracts[,] is simply
              that as a matter of substantive law, a certain act, the act of
              embodying the complete terms of an agreement in a writing (the
              "integration"), becomes the contract of the parties. The point
              then is, not how the agreement is to be proved, because as a
              matter of law the writing is the agreement. Extrinsic evidence is
              excluded because it cannot serve to prove what the agreement
              was, this being determined as a matter of law to be the writing
              itself. The rule comes into operation when there is a single and
              final memorial of the understanding of the parties. When that
              takes place, prior and contemporaneous negotiations, oral or
              written, are excluded; or, as it is sometimes said, the written
              memorial supersedes these prior or contemporaneous
              negotiations.

              The principal purpose of the parol evidence rule is to protect the
              integrity of written contracts. Ed Schory & Sons, Inc. v. Soc.
              Natl. Bank (1996), 75 Ohio St.3d 433, 440, 662 N.E.2d 1074,
              1080. By prohibiting evidence of parol agreements, the rule
              seeks to ensure the stability, predictability, and enforceability of
              finalized written instruments. "It reflects and implements the
              legal preference, if not the talismanic legal primacy, historically
              given to writings. It effectuates a presumption that a subsequent
              written contract is of a higher nature than earlier statements,
              negotiations, or oral agreements by deeming those earlier
              expressions to be merged into or superseded by the written
              document." (Footnotes omitted.) 11 Williston on Contracts,
              supra, at 541-548, Section 33:1.

       {¶ 18} In Bellman v. Am. Internat'l Group, 113 Ohio St.3d 323, 2007-Ohio-2071, ¶ 11,

the court stated, "[a] contract that appears to be a complete and unambiguous statement of

the parties' contractual intent is presumed to be an integrated writing." Here, the parties'

contract "appears to be a complete and unambiguous statement of the parties' contractual

intent[,]" and therefore the parties' contract "is presumed to be an integrated writing." Id.

       {¶ 19} The Galmish court discussed the "fraudulent inducement" exception to the parol

evidence rule, as follows:

              [T]he parol evidence rule does not prohibit a party from
              introducing parol or extrinsic evidence for the purpose of proving
              fraudulent inducement. Drew v. Christopher Constr. Co., Inc.
              (1942), 140 Ohio St. 1, 23 O.O. 185, 41 N.E.2d 1018, paragraph
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             two of the syllabus. See, also, Union Mut. Ins. Co. of Maine v.
             Wilkinson (1871), 80 U.S. (13 Wall.) 222, 231-232, 20 L.Ed. 617,
             622. As explained in Annotation, Parol-Evidence Rule; Right to
             Show Fraud in Inducement or Execution of Written Contract
             (1928), 56 A.L.R. 13, 34-36:

             The principle which prohibits the application of the parol-
             evidence rule in cases of fraud inducing the execution of a
             written contract * * * has been regarded as being as important
             and as resting on as sound a policy as the parol-evidence rule
             itself. It has been said that if the courts were to hold, in an action
             on a written contract, that parol evidence should not be received
             as to false representations of fact made by the plaintiff, which
             induced the defendant to execute the contract, they would in
             effect hold that the maxim that fraud vitiates every transaction is
             no longer the rule; and such a principle would in a short time
             break down every barrier which the law has erected against
             fraudulent dealing.

Glamish at 28.

      {¶ 20} The Galmish court then discussed the circumstances in which the fraudulent

inducement exception to the parol evidence rule does not apply:

             [T]he parol evidence rule may not be avoided "by a fraudulent
             inducement claim which alleges that the inducement to sign the
             writing was a promise, the terms of which are directly
             contradicted by the signed writing. Accordingly, an oral
             agreement cannot be enforced in preference to a signed writing
             which pertains to exactly the same subject matter, yet has
             different terms." Marion Prod. Credit Assn. v. Cochran (1988),
             40 Ohio St.3d 265, 533 N.E.2d 325, paragraph three of the
             syllabus. See, also, Ed Schory & Sons, Inc., supra, 75 Ohio
             St.3d at 440, 662 N.E.2d at 1080. [Footnote omitted.] In other
             words, "[t]he Parol Evidence Rule will not exclude evidence of
             fraud which induced the written contract. But, a fraudulent
             inducement case is not made out simply by alleging that a
             statement or agreement made prior to the contract is different
             from that which now appears in the written contract. Quite to the
             contrary, attempts to prove such contradictory assertions is
             exactly what the Parol Evidence Rule was designed to prohibit."
             Shanker, Judicial Misuses of the Word Fraud to Defeat the Parol
             Evidence Rule and the Statute of Frauds (With Some Cheers
             and Jeers for the Ohio Supreme Court) (1989), 23 Akron L.Rev.
             1, 7.

             The same concept-that the proffered evidence of fraud must
             show more than a mere variation between the terms of the
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                                                                       Fayette CA2012-08-026

              written and parol agreement-applies to allegations of promissory
              fraud * * *. Thus, "[t]he rule excluding parol evidence of collateral
              promises to vary a written contract does not apply where such
              contract is induced by promises fraudulently made, with no
              intention of keeping them * * *." 37 American Jurisprudence 2d,
              supra, at 623, Section 452. However, the parol evidence rule
              does apply "to such promissory fraud if the evidence in question
              is offered to show a promise which contradicts an integrated
              written agreement.         Unless the false promise is either
              independent of or consistent with the written instrument,
              evidence thereof is inadmissible." Alling v. Universal Mfg. Corp.
              (1992), 5 Cal.App.4th 1412, 1436, 7 Cal.Rptr.2d 718, 734.

Galmish at 29-30 . (Emphasis added.)

       {¶ 21} Under Galmish, the parol evidence rule could not be avoided by a claim that T-

WDCI, through its remaining shareholders, Bonnie, Wilson and C.J., was fraudulently

induced into signing the three agreements that comprise the parties' contract by Taylor's

promises that the contract was meant to be only "temporary," was to last only "until the whole

thing blew over," and that he did not expect to be paid on the promissory note. As stated in

Galmish at 30, quoting Alling, 5 Cal.App.4th 1412, 1436, "the parol evidence rule does apply

'to such promissory fraud if the evidence in question is offered to show a promise which

contradicts an integrated written agreement. Unless the false promise is either independent

of or consistent with the written instrument, evidence thereof is inadmissible.'" (Emphasis

added.)

       {¶ 22} Under the doctrine of "collateral contract" and the related "collateral agreement"

exception to the parol evidence rule, "[e]vidence of a collateral oral agreement is admissible

only if it does not conflict with the written agreement and covers a subject matter distinct

from, though closely related to, the express subject matter of the agreement and is not

included in the agreement." Takis, L.L.C. v. C.D. Morelock Properties, Inc., 180 Ohio App.3d

243, 2008-Ohio-6676 (10th Dist.2008), ¶ 26.

       {¶ 23} Here, Taylor's alleged promises to T-WDCI, made to its remaining

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                                                                      Fayette CA2012-08-026

shareholders, Bonnie, Wilson and C.J., that (1) the parties' agreement requiring him to divest

himself of his shares of stock in T-WDCI was meant to be a "temporary fix" that was to last

only "until the whole thing blew over"; (2) the temporary divestment was not "a money maker

for him"; and (3) he did not expect to be paid on the promissory note, are contradicted by,

and entirely inconsistent with, the terms of the parties' written promissory note, and therefore

his alleged, oral promise cannot fall within the "collateral agreement" exception to the parol

evidence rule. Id.

       {¶ 24} T-WDCI argues it was fraudulently induced into signing the contract, including

the promissory note, by Taylor's false protestations of innocence on the molestation charges

against him. T-WDCI also argues the trial court erred by finding that Taylor's protestations of

innocence were "immaterial." We disagree with both arguments.

       {¶ 25} In granting summary judgment to Taylor, the trial court failed to offer a clear

explanation as to why it found Taylor's protestations of innocence to be immaterial.

However, the evidence presented in the summary judgment proceedings shows why the trial

court arrived at this conclusion.

       {¶ 26} The parties entered into their contract in order to protect the assets of T-WDCI

and its then four, co-equal shareholders, Taylor, Bonnie, Wilson and C.J. By the time T-

WDCI repurchased Taylor's 25 percent shares of stock, Taylor already had pled guilty to

several child molestation charges and had been convicted of those charges and sent to

prison.

       {¶ 27} Bonnie, Wilson and C.J. allege in their affidavit and deposition testimony that at

the time they signed the stock purchase agreement and promissory note, they still believed

Taylor's continuing protestations of innocence on the child molestation charges against him.

However, irrespective of their subjective beliefs on Taylor's guilt or innocence on the charges,

it was apparent to Bonnie, Wilson and C.J. that they needed Taylor to divest himself of his
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shares in T-WDCI, in order to protect the company and its shareholders from Taylor's

creditors, i.e., his child molestation victims. Therefore, it is apparent that T-WDCI and its

remaining shareholders did not sign the underlying agreements that made up the contract

due to their subjective belief in Taylor's innocence, but rather, to protect T-WDCI's assets, as

well as their own.

          {¶ 28} T-WDCI also argues the trial court erred in not finding the affidavit and

deposition testimony of Bonnie, Wilson and C.J. to be admissible under the exception to the

parol evidence rule that allows parol or extrinsic evidence to be admitted to show that the

parties to a document or writing did not intend or understand for the document or writing to

be a binding contract between them, or stated another way, that allows parol or extrinsic

evidence to be admitted to show whether the parties' document or writing was a complete

and accurate integration of the parties' contract. In support of this argument, T-WDCI relies

on Natl. City Bank, Akron v. Donaldson, 95 Ohio App.3d 241, 245-246 (9th Dist.1994), which

states:

                A document that was agreed to by the parties as a "complete
                and accurate integration of [a] contract" is a prerequisite to
                application of the parol evidence rule. Presentation of a
                document that, on its face, appears to be a "complete and
                accurate integration of [a] contract" will often be sufficient to
                satisfy this prerequisite because the parties will acknowledge that
                they intended the document to serve that purpose. * * *

                ***

                A different situation is presented, however, when one of the
                parties to what appears on its face to be a "complete and
                accurate integration of [a] contract" argues that the parties
                agreed that the document would not be an expression of an
                agreement between them. In that situation, the parol evidence
                rule has no application until the initial issue of whether the parties
                intended the proffered document to be an expression of their
                agreement has been resolved. Any otherwise admissible
                evidence is properly considered by a court in determining
                whether a proffered document was intended by the parties to be
                a "complete and accurate integration of [a] contract" between
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             them:

             "That a writing was or was not adopted as a completely
             integrated agreement may be proved by any relevant evidence.
             A document in the form of a written contract, signed by both
             parties and apparently complete on its face, may be decisive of
             the issue in the absence of credible contrary evidence. But a
             writing cannot of itself prove its own completeness, and wide
             latitude must be allowed for inquiry into circumstances bearing
             on the intention of the parties." 2 Restatement of the Law 2d,
             Contracts (1981), Section 210, Comment b; 2 Farnsworth on
             Contracts (2 Ed.1990), Section 7.4 at 211-213; 3 Corbin on
             Contracts (1960) 360, Section 573. As explained by the United
             States Court of Appeals for the Second Circuit, parties may
             execute a document that, on its face, appears to be a "complete
             and accurate integration of [a] contract," for reasons other than a
             desire to make an enforceable agreement:

             "It is well settled that whatever the formal documentary evidence,
             the parties to a legal transaction may always show that they
             understand a purported contract not to bind them; it may, for
             example, be a joke, or a disguise to deceive others. * * * It is no
             objection that such an understanding contradicts the writing; a
             writing is conclusive only so far as the parties intend it to be the
             authoritative memorial of the transaction. Whatever the
             presumptions, their actual understanding may also be shown
             except in so far as expressly or implicitly they have agreed that
             the writing alone shall control. While it is true that an intent to
             make a contract is not necessary to the creation of a contract
             and that parties who exchange promises will find themselves
             bound, whatever they may have thought, nevertheless they will
             not be bound if they agree that their words, however coercive in
             form, shall not bind them." (Citations omitted.) In re H. Hicks &
             Son, Inc. (C.A. 2, 1936), 82 F.2d 277, 279; 3 Corbin, Corbin on
             Contracts, supra, at 393-396, Section 577.

(Emphasis added.)

      {¶ 29} Relying on Donaldson, T-WDCI argues the parties agreed that their contract,

which included the parties' stock purchase agreement, promissory note and assignment of

stock, was not meant to be an expression of the parties' complete and accurate integration of

their agreement. In support of this argument, T-WDCI, relying on the affidavit and deposition

testimony of Bonnie, Wilson and C.J., asserts that Taylor informed T-WDCI, through Bonnie,

Wilson and C.J., that the agreement was meant to be "temporary" and was to last only "until
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                                                                      Fayette CA2012-08-026

the whole thing blew over," and that he did not expect to be paid on the promissory note. T-

WDCI contends that, under Donaldson, the parol evidence rule has no application in this

case until resolution of the issue of whether the parties intended their contract, including the

promissory note, to be an expression of the parties' complete and accurate integration of

their agreement. Id. at 245-246. T-WDCI also contends that any otherwise admissible

evidence, including the affidavit and deposition testimony of Bonnie, Wilson and C.J., should

have been considered by the trial court in determining whether the parties' contract was

intended by the parties to be the complete and accurate integration of the parties' agreement.

Id. at 246.

       {¶ 30} T-WDCI's argument is not without some force. As noted in Donaldson, "'a

writing cannot of itself prove its own completeness, and wide latitude must be allowed for

inquiry into circumstances bearing on the intention of the parties.'" Id. at 246, quoting, among

other authorities, 2 Restatement of the Law 2d, Contracts (1981), Section 210, Comment b.

Moreover, this court and other appellate districts in this state have cited Donaldson with

approval. See, e.g., Mazzaferri v. Weller Roofing, Inc., 12th Dist. No. CA96-10-197, 1997

WL 700066, * 2 (Nov. 10, 1997), and Erd v. Sparrow, 2nd Dist. No. 98-CA-43, 1999 WL

55684, * 4 (Feb. 5, 1999). However, we find Donaldson to be distinguishable from this case.

       {¶ 31} In Donaldson, National City Bank sued Juanita Donaldson for money due on a

promissory note that she and her son had signed to enable her son to purchase a car. Id. at

243-244. Donaldson's son eventually defaulted on the note, the car was repossessed and

sold, and National City Bank sued Donaldson for the $5,655.29 deficiency on the note. Id.

Donaldson opposed National City Bank's motion for summary judgment with her affidavit in

which she acknowledged that she had signed the note, but insisted she should not be held

liable on it. Donaldson testified in her affidavit that she told the car salesman at the

dealership from which her son had bought the car that she could not afford to make monthly
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payments because Social Security was her only source of income. Donaldson testified the

salesman had assured her that he would "arrange things" so that she would not have to pay

anything on the note. Id. at 244. Donaldson also alleged that the car salesman visited her at

her church for the purpose of obtaining her signature on the note. Id.

       {¶ 32} The trial court found that Donaldson's affidavit was inadmissible under the parol

evidence rule and granted summary judgment to National City Bank on the promissory note.

Donaldson appealed the trial court's decision to the Ninth District Court of Appeals, which

reversed the trial court. In support of its decision, the Donaldson court stated:

              Donaldson submitted evidence, in the form of her affidavit * * *
              that the [promissory note she had signed] was not what it
              appeared to be. She contended that she had not signed the
              document as a "complete and accurate integration of [a]
              contract" by which she agreed to pay her son's debt, but rather
              signed it only after she was assured she would not have to pay
              his debt and that her signature was only necessary because she
              had "good credit." In order to conclude whether the parol
              evidence rule was applicable in this case, the trial court was
              required to determine, based upon "any relevant evidence,"
              whether the parties intended the document signed by Donaldson
              to be a "complete and accurate integration of [a] contract"
              between them. According to Donaldson's affidavit, she and the
              salesman agreed, prior to her signing the document at issue, that
              the document would not be an enforceable contract. In view of
              that affidavit, National City was not entitled to summary judgment
              against Donaldson.

Id. at 246-247.

       {¶ 33} The factual circumstances of this case are markedly different from the ones

present in Donaldson. Of critical importance is that the facts of this case show that T-WDCI

fulfilled its obligations under its contract with Taylor for five years, from July 2005 until July

2010, including its obligation to make interest payments to Taylor on the promissory note

every six months. During that five-year period, T-WDCI and its remaining shareholders

behaved in every manner as if the parties' stock purchase agreement, promissory note and

assignment of stock were, in fact, the parties' contract.

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       {¶ 34} Shortly after the real estate market collapsed in 2008, Bonnie, Wilson and C.J.,

sent Taylor a letter on February 9, 2009, asking him to forgive the note and release them

"from any further monetary obligation to you." Bonnie, Wilson and C.J. did not include any

language in the letter reminding Taylor of his alleged promises that the parties' contract was

temporary and was to last only "until the whole thing blew over," and that Taylor was not

expecting payment on the promissory note.

       {¶ 35} This court is mindful that Civ.R. 56(C) requires us to examine the evidence in a

light most favorable to the nonmoving party in summary judgment proceedings. We are also

mindful that it is not the place for either a trial court or an appellate court to weigh the

evidence presented during the summary judgment proceedings, or to accept one party's

interpretation of that evidence over that of another party. Lennon v. Neil, 139 Ohio App.3d

437, 442 (11th Dist.2000).

       {¶ 36} While it is generally inappropriate for a trial court or appellate court to consider

either the weight of the evidence or the credibility of witnesses who provide affidavit or

deposition testimony in summary judgment proceedings, Halley v. Grant Trucking, Inc., 67

Ohio App.3d 357, 364 (4th Dist.1990), there are instances in which a court will have to

consider the sufficiency of the evidence, at least, "to some degree."

       {¶ 37} When the moving party in a summary judgment proceeding has met its initial

burden of showing 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, the nonmoving party must then present

evidence that some issue of material fact remains to be resolved. Wells Fargo, 2013-Ohio-

855 at ¶ 25, citing Dresher, 75 Ohio St.3d at 293. As stated in Kassouf v. Cleveland

Magazine City Magazines, 142 Ohio App.3d 413, 420 (11th Dist.2001):

              [A] trial court must determine whether sufficient competent
              evidence has been presented by the party opposed to the motion
              [for summary judgment] on any issue for which that party bears
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              the burden at trial. Shafer v. Ford Motor Co., Inc. (Feb. 28,
              1997), Trumbull App. No. 96-T-5504, unreported, at 9, 1997 WL
              374310, citing Wing [v. Anchor Media, Ltd. of Texas (1991),]
              supra, 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, 1099.
              Examination of the evidence is necessary to enable the court to
              determine whether the nonmoving party has met this threshold
              standard. Id. at 9.

       {¶ 38} "[I]f the moving party has demonstrated that the non-moving party's claim is

factually implausible, then the non-moving party must produce more persuasive evidence to

support his claim." Paul v. Uniroyal Plastics Co., 62 Ohio App.3d 277, 282 (6th Dist.1988),

citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.

1348 (1986). As further noted in Paul:

              Assessing the sufficiency of the evidence in the context of a
              motion for summary judgment involves a qualitative, as well as a
              quantitative, analysis. Matsushita Elec. Indus. Co., Ltd., supra,
              475 U.S. at 586, 106 S.Ct. at 1355-1356, 89 L.Ed.2d at 552.
              Therefore in addition to considering the amount of evidence
              presented on an issue, the court must consider whether the
              evidence makes the party's claim plausible.

       {¶ 39} In the present case, we conclude that no reasonable jury could have accepted

as true T-WDCI's contention that Taylor agreed not to seek payment on the promissory note,

given T-WDCI's conduct in paying Taylor interest on the note every six months for a period of

five years. Nor could any reasonable jury have found in favor of T-WDCI on its defenses to

Taylor's breach-of-contract claim on the parties' promissory note, including its fraudulent

inducement claim or its claim that the parties' contract was not a full and complete, integrated

expression of the parties' agreement. There is an overwhelming amount of evidence that

was presented during the summary judgment proceedings that leads us to this conclusion.

       {¶ 40} Under T-WDCI's interpretation of the parties' contract, including the promissory

note, Taylor essentially receives no benefits from the agreement. By asserting that Taylor

agreed that he was not expecting to be paid and that he would not seek payment on the

promissory note, even though T-WDCI paid Taylor interest on the note every six months for
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five years, T-WDCI is essentially arguing that Taylor traded his corporate stock in T-WDCI for

a debt from it, which T-WDCI insists he then promised he would not collect. Such an

argument is simply not plausible, and therefore it fails to establish the existence of a genuine

issue of material fact for trial. Moreover, that implausible argument does not stand alone.

       {¶ 41} If, as Bonnie, Wilson and C.J. contend, the parties' contract was merely a

bogus arrangement that was designed to last only temporarily "until the whole thing blew

over," then why did T-WDCI's attorneys draft legal documents memorializing the transaction

and why did its accountants spend time coming up with a valuation of the company? Even

more importantly, why did T-WDCI pay interest to Taylor every six months, for a five-year

period from July 2005 to July 2010? Why did T-WDCI, through Bonnie, Wilson and C.J.,

send the February 9, 2009 letter to Taylor asking him to forgive the promissory note, when

Taylor, allegedly, had already told them he was not expecting payment on the note? Why did

the company and its remaining shareholders fail to remind Taylor of his alleged promises that

the arrangement was not a "money maker" for him and was meant to be temporary and last

only until "the whole thing blew over," and that Taylor had told them he was not expecting to

be paid on the promissory note?

       {¶ 42} Bonnie, Wilson and C.J. argue they made interest payments to Taylor under

the terms of the promissory note for five years because they were concerned about his ability

to survive his incarceration and they continued to believe his protestations of innocence on

the child molestation charges against him until he refused their February 9, 2009 request that

he forgive the promissory note and any other obligations they owed to him. However, on

June 29, 2005, C.J. sent Taylor a letter while he was in prison, which states in pertinent part:

              Mike, what I want you to hear me saying is that the words, "I'm
              sorry" are important in bringing healing and restoration to
              everyone concerned. It is also important to know that the Bible
              says, "Repentance comes with confession." "When we confess
              our sins, He is faithful and just to forgive us our sins and (hear
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              this well), to CLEANSE us from ALLL UNRIGHTEOUNESS [sic]."
              That means Jesus will reveal to us those ideologies, habits,
              grudges, etc. that are unrighteous and keep us from receiving
              the incredible blessings, abundant life and joy that the Lord
              wants us to have. I want God's best for you, but I feel in my
              heart that you are not yet willing to let it all out. You have to talk
              with Bonnie and tell her everything so she can truly forgive and
              love you completely and absolutely, warts and all. Trust her and
              trust all of us enough to love you no matter what.

(Emphasis added.)

       {¶ 43} We also agree with the trial court's observation that the parties' contract either

had to have been legitimate, or T-WDCI and its remaining shareholders, Bonnie, Wilson and

C.J., were complicit in a scheme designed to shelter Taylor's assets from his child

molestation victims.

       {¶ 44} T-WDCI's allegations are unsupported by any evidence other than the self-

serving affidavit and deposition testimony of its remaining shareholders, Bonnie, Wilson and

C.J. Those allegations are belied by T-WDCI's actions in which it performed its obligations

under the terms of its promissory note with Taylor for five years, including paying him interest

every six months while he was in prison. T-WDCI and its remaining shareholders sought to

be relieved of its obligations under the parties' contract when they became overly

burdensome to the company as a result of the severe economic downturn in general and the

collapse of the real estate market in particular, and they did not claim their contract with

Taylor was invalid until Taylor turned down their request that he forgive their debt to him.

       {¶ 45} The parties' contract, comprised of their stock purchase agreement, promissory

note and assignment of stock, is clearly the parties' unambiguous, full and complete

integrated agreement; there is no evidence supporting a plausible claim that Taylor

fraudulently induced T-WDCI, through its remaining shareholders, to enter into the parties'

contract; and Taylor was entitled to enforce the promissory note, which was a key component

of the parties' contract. Consequently, the trial court did not err in granting summary
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judgment to Taylor on his breach-of-contract claim on the parties' promissory note.

      {¶ 46} In light of the foregoing, T-WDCI's sole assignment of error is overruled.

      {¶ 47} Judgment affirmed.



      HENDRICKSON, P.J. and PIPER, J., concur.




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