[Cite as Hmeidan v. Muheisen, 2017-Ohio-7670.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                         JUDGES:
EDDIE HMEIDAN, ET AL                             :       Hon. W. Scott Gwin, P.J.
                                                 :       Hon. William B. Hoffman, J.
                     Plaintiffs-Appellees        :       Hon. Earle E. Wise, J.
                                                 :
-vs-                                             :
                                                 :       Case No. 2017CA00069
HASAN MUHEISEN                                   :
                                                 :
                   Defendant-Appellant           :       OPINION




CHARACTER OF PROCEEDING:                             Civil appeal from the Stark County Court of
                                                     Common Pleas, Case No.2015CV02674


JUDGMENT:                                            Affirmed



DATE OF JUDGMENT ENTRY:                              September 18, 2017



APPEARANCES:

For Plaintiffs-Appellees                             For Defendant-Appellant

JOHN BOGGINS                                         GREGORY RUFO
1428 Market Avenue North                             101 Central Plaza S.
Canton, OH 44714                                     600 Chase Tower
                                                     Canton, OH 44702
Stark County, Case No. 2017CA00069                                                       2

Gwin, P.J.

       {¶1}   Appellant appeals the April 10, 2017 judgment entry of the Stark County

Court of Common Pleas.

                                   Facts & Procedural History

       {¶2}   Appellees Eddie and Mimi Hmeidan filed a forcible entry and detainer action

against appellant Hasan Muheisen with regards to the commercial property located at

125 – 12th Street N.E. in Canton, Ohio. Appellant filed counterclaims regarding the

property for declaratory judgment, quiet title, breach of contract, specific performance,

promissory estoppel, implied contract, and equitable lien. Appellant also filed a motion to

transfer the case to the common pleas court. The trial court granted appellant’s motion

on December 23, 2015 and issued a judgment entry transferring the case to the Stark

County Court of Common Pleas. Appellees filed a reply to appellant’s counterclaims.

       {¶3}   Appellees filed a motion to file an amended complaint. The trial court

granted appellees’ motion on January 22, 2016.         Appellant filed an answer to the

amended complaint on February 22, 2016 and again asserted his counterclaims.

       {¶4}   On September 23, 2016, appellees filed a motion for summary judgment.

Attached to the motion for summary judgment was the affidavit of appellee Eddie

Hmeidan. In the affidavit, Eddie Hmeidan averred: he and his wife Mimi are owners of

the commercial real property located at 125 – 12th Street N.E. in Canton, Ohio, via a

quitclaim deed filed on November 21, 2011; on November 10, 2011, he and Mimi entered

into a lease/purchase agreement for the premises with appellant; under the terms of the

agreement, appellant agreed to pay rent according to a schedule; appellant failed to pay

rent for the month of May 2013, appellant paid only $1,000 per month for November 1,
Stark County, Case No. 2017CA00069                                                       3


2013 through October 31, 2014, when he was supposed to pay $1,500 per month, and

appellant paid only $1,000 from November 1, 2014 to February 28, 2015, rather than the

sum of $2,000 per month as required by the contract; appellant failed to pay any rent

subsequent to February 28, 2015 and is in arrears in excess of $49,000; the contract

provides that appellant shall be responsible for the payment of all delinquent real estate

taxes and assessments, all current real estate taxes and assessments, and all future real

estate taxes and assessments with respect to the premises; appellant has failed to pay

real estate taxes and assessments, both delinquent and ongoing installments, and, as of

December 31, 2015, taxes due, together with penalties and interest, is in excess of

$21,576.32; on December 9, 2015, he served appellant with a 3-day notice to vacate the

premises by posting the notice on the door of the property; and appellant remains in

possession of the property.

      {¶5}   On October 7, 2016, appellant filed a motion for extension of time to

respond to the motion for summary judgment due to the fact that appellant had filed

bankruptcy. Appellees objected to the motion for extension of time. Appellees also filed

a supplemental motion for summary judgment seeking to hold appellant personally liable

for post-bankruptcy petition debt.

      {¶6}   On October 14, 2016, appellant filed an affidavit in support of his motion for

extension of time to respond to appellees’ motion for summary judgment. The affidavit of

appellant asserted: the deal he negotiated with appellees is a financing arrangement and

not a lease; Eddie Hmeidan and appellant negotiated the deal in Arabic on November 1,

2011, and entered into a contract handwritten in Arabic, which has been translated into

English and is attached as Exhibit A; the property was transferred to appellees as
Stark County, Case No. 2017CA00069                                                      4


collateral for the loan agreement; he signed the lease purchase agreement, but because

English is his second language, he was unable to read and understand that it may have

been different from the agreement they previously wrote in Arabic; he made the periodic

payments called for, and the amount of the payments were accepted by Eddie Hmeidan

by agreement of the parties; Eddie Hmeidan abruptly stopped accepting payments in

March 2015 without prior notice or explanation; he paid $250,000 to another company,

not related to Hmeidan, to purchase the property, and Hmeidan did not pay anything; the

value for the loan in the agreement was the removal of a judgment lien Hmeidan had

against the house were appellant lives; and he needs additional time to conduct discovery

and respond to the motion for summary judgment because of his ill health.

      {¶7}   Attached as “Exhibit A” to the affidavit is a copy of three notebook pages of

paper. At the end of the three pages, it says, “Signed by Hasan Muheisen, Ahmad

Hamdan, and Adel Hmeidan.” The document also says, “Translator: Mohammed Nayet.”

      {¶8}   On December 9, 2016, the trial court issued a judgment entry staying the

case due to bankruptcy and stated it would not rule on any pending motions until the

bankruptcy stayed was lifted. On January 31, 2017, the trustee in appellant’s bankruptcy

case filed a notice that she abandoned the property at 125 – 12th Street N.E. and that

appellant’s bankruptcy case was closed. The trial court returned the case to the active

docket on February 2, 2017.

      {¶9}   On February 27, 2017, appellees filed a motion for consideration of their

motion for summary judgment filed on September 23, 2016. The trial court issued a

judgment entry on March 2, 2017 setting a briefing schedule on appellees’ motion for

summary judgment. The trial court ordered any response be filed on or before March 17,
Stark County, Case No. 2017CA00069                                                      5


2017 and any reply be filed on or before March 24, 2017. The trial court stated, “(n)o

further continuances will be granted. Should any party wish for the Court to hold an oral

hearing on this matter, it must be requested prior to March 17, 2017.”

      {¶10} Appellant filed an objection and response to the motion for summary

judgment on March 20, 2017, and asked the trial court to permit appellant to conduct

discovery. Appellant also asserted the motion for summary judgment should be denied

based upon his October 2016 affidavit. However, the affidavit was not attached to

appellant’s response and objection to the motion for summary judgment. Appellees filed

a reply to appellant’s response on March 21, 2017. Appellees argued appellant was not

entitled to a continuance of more than eight days unless a bond was posted pursuant to

R.C. 1923.08. Further, that appellant had provided no admissible evidence to contradict

the evidence provided by appellees in their motion for summary judgment.

      {¶11} On March 28, 2017, appellant filed a, “Refiling of Affidavit in Support of

Response to Summary Judgment Motion.” Appellant re-submitted his affidavit that was

filed on October 14, 2016 in support of his motion for extension of time to respond to the

motion for summary judgment.

      {¶12} The trial court issued a judgment entry granting appellees’ motion for

summary judgment on April 10, 2017. The trial court found appellant failed to make

numerous rent payments as provided for in the lease agreement and failed to pay real

estate taxes and assessments as provided for in the lease agreement. The trial court

found appellant in default of the agreement. The trial court stated it considered the only

evidence before it, the affidavit of Eddie Hmeidan, which states appellant has not paid

rent or installments payments under the agreement since February 28, 2015 and states
Stark County, Case No. 2017CA00069                                                         6


payments were sporadic and inadequate for some period prior to ceasing altogether. The

trial court stated the “purported agreement in Arabic cannot properly be considered.” The

trial court granted appellees summary judgment and ordered a writ of restitution so

appellees could regain possession of the property.         The trial court also found the

lease/purchase agreement void and cancelled.

       {¶13} On April 26, 2017, the trial court transferred the writ of restitution to the

Canton Municipal Court for execution. Appellant filed a motion to stay pending appeal on

May 1, 2017. On May 3, 2017, the trial court issued a judgment entry staying the case

pending appeal and ordered any monies due under the lease purchase agreement be

deposited into an escrow account at the Stark County Clerk of Courts. The trial court

modified its entry granting stay on May 11, 2017 and ordered appellant to post bond in

the amount of $22,000. On May 16, 2017, the trial court issued a judgment entry and

ordered appellant to post the $22,000 bond on or before June 2, 2017.

       {¶14} Appellees filed a motion to remove stay pending appeal on June 5, 2017

and argued the stay should be removed because appellant failed to post the $22,000

bond. On June 14, 2017, the trial court issued a judgment entry removing and rendering

void the stay pending appeal for appellant’s failure to comply with the trial court’s May 16,

2017 order which required appellant to post bond in the amount of $22,000 on or before

June 2, 2017. On June 30, 2017, a Canton Municipal Court judge ordered a writ of

restitution for the property. The writ of restitution was issued on July 5, 2017. A forcible

eviction was set for July 14, 2017. A Canton Municipal Court bailiff filed a return of writ,

indicating he served the writ on July 14, 2017, but the occupants had moved.
Stark County, Case No. 2017CA00069                                                          7


       {¶15} Appellant appeals the April 10, 2017 judgment entry of the Stark County

Court of Common Pleas, and assigns the following as error:

       {¶16} “I. THE TRIAL COURT FAILED TO CONSIDER THE AFFIDAVIT OF

DEFENDANT, HASAN M. MUHEISEN FILED ON MARCH 28, 2017, AND/OR TO

PERMIT DISCOVERY OF EVIDENCE RELEVANT TO THE MOTION FOR SUMMARY

JUDGMENT.

       {¶17} “II. THE TRIAL COURT FAILED TO CONSIDER DEFENDANT’S

COUNTERCLAIM THAT THE DOCUMENTS CREATED AN EQUITABLE MORTGAGE.”

                                   Summary Judgment Standard

       {¶18} Civil Rule 56(C) in reviewing a motion for summary judgment which

provides, in pertinent part:

       Summary 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 of material fact and that the

       moving party is entitled to judgment as a matter of law. No evidence or

       stipulation may be considered except as stated in this rule. A summary

       judgment shall not be rendered unless it appears from the 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, that party being

       entitled to have the evidence or stipulation construed mostly strongly in the

       party’s favor. A summary judgment, interlocutory in character, may be
Stark County, Case No. 2017CA00069                                                           8


       rendered on the issue of liability alone although there is a genuine issue as

       to the amount of damages.

       {¶19} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 474

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733

N.E.2d 1186 (6th Dist. 1999).

       {¶20} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

       {¶21} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrate the absence of a genuine issue of fact on a material element of the

non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

Once the moving party meets its initial burden, the burden shifts to the non-moving party

to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.

The non-moving party may not rest upon the allegations and denials in the pleadings, but
Stark County, Case No. 2017CA00069                                                           9


instead must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

                                                  I.

       {¶22} In his first assignment of error, appellant contends the trial court erred in

failing to consider his affidavit filed on March 28, 2017 and/or to permit discovery of

evidence relevant to the motion for summary judgment.

                                             Mootness

       {¶23} Appellees first contend appellant’s argument is moot because appellees

have executed upon the writ of restitution. Appellant argues his counterclaims make his

assignment of error not moot.

       {¶24} “A forcible entry and detainer action decides the right to immediate

possession of property and nothing else.” Miami Valley Housing v. Jackson, 2nd Dist.

Montgomery No. 25020, 2012-Ohio-5103. When a tenant has vacated the premises and

the landlord has again taken possession, the merits of such action are generally rendered

moot. Id. The only method by which a defendant appealing a judgment of forcible entry

and detainer may prevent the cause from becoming moot is stated in R.C. 1923.14. The

statute provides a means by which the defendant may maintain, or even recover,

possession of the disputed premises during the course of his appeal by filing a timely

notice of appeal, seeking a stay of execution, and posting a supersedeas bond. If the

defendant fails to avail himself of this remedy, all issues relating to the action are rendered

moot by his eviction from the premises. Id.; Hussain v. Sheppard, 10th Dist. Franklin No.

14AP-686, 2015-Ohio-657; Valente v. Johnson, 4th Dist. Athens Nos. 06CA31, 06CA38,

2007-Ohio-2664.
Stark County, Case No. 2017CA00069                                                        10


       {¶25} Though appellant requested a stay of the trial court’s order, appellant failed

to comply with the trial court’s order granting the stay which required appellant to post

bond in the amount of $22,000 on or before June 2, 2017. Thus, on June 14, 2017, the

trial court issued a judgment entry removing and rendering void the stay pending appeal

for appellant’s failure to post bond. On June 30, 2017, the Canton Municipal Court

ordered a writ of restitution for the premises. The writ of restitution was issued on July 5,

2017. The writ was served on July 14, 2017, and the return from the bailiff stated the

occupants had moved. Here, appellant did seek a stay of execution, but failed to perfect

the stay by posting the required bond.

       {¶26} Because he did not perfect a stay of the writ of restitution, the writ of

restitution was executed. Thus, there is a strong argument appellant’s first assignment

of error is moot because it deals only with the forcible entry and detainer action, not

appellant’s counterclaims. Gromek v. Lepisto, 11th Dist. Lake No. 2015-L-099, 2015-

Ohio-4133; Cherry v. Morgan, 2nd Dist. Clark No. 2012 CA 11, 2012 CA 21, 2012-Ohio-

3594; Hussain v. Sheppard, 10th Dist. Franklin No. 14AP-686, 2015-Ohio-657; Valente

v. Johnson, 4th Dist. Athens Nos. 06CA31, 06CA38, 2007-Ohio-2664. Even though the

doctrine of mootness may apply, we will address the merits of the case due to the

counterclaims.

                            Affidavit and Accompanying Documents

       {¶27} Appellant argues the trial court erred in not considering his affidavit, which

disputes the non-payment of rent and taxes and also details a purported agreement the

parties had in Arabic. We disagree.
Stark County, Case No. 2017CA00069                                                        11


       {¶28} First, appellant’s affidavit and accompanying exhibits were not timely filed

within the deadlines set by the trial court for the consideration of the motion for summary

judgment. On March 2, 2017, the trial court set a briefing schedule on appellees’ motion

for summary judgment. The trial court ordered any response filed by appellant on or

before March 17, 2017, and appellee’s reply filed on or before March 24, 2017. The trial

court also stated if either party wanted it to hold an oral hearing, it must request an oral

hearing prior to March 17, 2017.

       {¶29} Appellant filed his response after the March 17th deadline. While appellant

asserted in this response that the motion for summary judgment should be denied based

upon his affidavit, the affidavit was not attached to appellant’s response. On March 28,

2017, again after the deadline for appellant’s response to the motion for summary

judgment, appellant filed a “Refiling of Affidavit in Support of Response to Summary

Judgment Motion.” Appellant re-submitted his affidavit that was filed on October 14, 2016

in support of his motion for extension of time to respond to the motion for summary

judgment.

       {¶30} We find the trial court did not err in not considering appellant’s affidavit and

attached documents. Appellant failed to show cause as to why his response and/or

affidavit was filed late. Bank of New York Mellon v. Brubaker, 5th Dist. Fairfield No. 15-

CA-38, 2016-Ohio-2785; Barnett v. Carquest Auto Parks of Whitehall, 10th Dist. Franklin

No. 98AP-372, 1998 WL 869673 (Dec. 8, 1998). As this Court has stated, “procedural

due process demands that a trial court allows a non-moving party time for a fair

opportunity to respond before ruling on a motion for summary judgment.” Van Wert v.

Akron Metro. Regional Transit Auth., 5th Dist. Stark No. 2014CA00201, 2015-Ohio-3243.
Stark County, Case No. 2017CA00069                                                     12


Here, appellant was given a full and fair opportunity to respond to the motion for summary

judgment before the trial court ruled, as the trial court set a briefing schedule giving

appellant fifteen days to respond to the motion and request an oral hearing.

      {¶31} Appellant contends the trial court should have considered his affidavit

regarding an agreement the parties made in Arabic and “Exhibit A” to his affidavit,

purported to be an English translation of an alleged Arabic agreement between appellees

and appellant. At the end of Exhibit A it says, “Translator: Mohammed Nayet.” There is

no affidavit by “Mohammed Nayet” as to the truth and accuracy of the translation and it

was not notarized by anyone, including “Mohammed Nayet.” The statements contained

in the document are statements of “Mohammed Nayet” and constitute inadmissible

hearsay. Whitt v. Wolfinger, 4th Dist. Ross No. 14CA3455, 2015-Ohio-2726; Rex v. Rex,

5th Dist. Stark No. 2016 CA 00088, 2016-Ohio-5788.

      {¶32} Further, documents referred to in an affidavit must be attached and must be

sworn or certified copies. “Verification of these documents is generally satisfied by an

appropriate averment in the affidavit, for example, that such copies are true copies and

reproductions.” State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 423 N.E.2d 105

(1981). Exhibit A attached to appellant’s affidavit is a copy of pages handwritten on

notebook paper. In his affidavit, appellant states, “Mr. Hmeidan and I negotiated our deal

in Arabic, and entered into a contract handwritten in Arabic, which has been translated

into English and is attached as Exhibit A; I am called “Hasan” in the agreement and Mr.

Hmeidan is called “Adel.” Appellant did not aver Exhibit A is a true and accurate copy or

reproduction. Accordingly, Exhibit A is not proper Civil Rule 56 evidence. See Bajurczak

v. Estate of Bajurczak, 139 Ohio App.3d 78, 742 N.E.2d 1191 (9th Dist. 2000).
Stark County, Case No. 2017CA00069                                                         13

                                Continuance to Conduct Discovery

        {¶33} Appellant also contends the trial court erred in failing to permit discovery of

evidence relevant to the motion for summary judgment. We disagree. Pursuant to R.C.

1923.08, in a forcible entry and detainer action, “no continuance in an action * * * shall be

granted for a period longer than eight days, unless * * * the defendant applies for a

continuance and gives a bond to the plaintiff * * *.” In this case, appellant did not post a

bond.

        {¶34} Further, the decision whether to grant a motion for extension of time in order

to conduct further discovery lies within the broad discretion of the trial court and will be

reversed on appeal only for an abuse of discretion. Van Wert v. Akron Metro. Regional

Transit Auth., 5th Dist. Stark No. 2014CA00201, 2015-Ohio-3243. An abuse of discretion

connotes more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983).

        {¶35} Civil Rule 56(F) requires a party opposing summary judgment to submit

affidavits with sufficient reasons stating why he cannot present by affidavit facts sufficient

to justify its opposition. “Mere allegations requesting a continuance or deferral of action

for the purpose of discovery are not sufficient reasons why a party cannot present

affidavits in opposition to the motion for summary judgment.” Van Wert v. Akron Metro.

Regional Transit Auth., 5th Dist. Stark No. 2014CA00201, 2015-Ohio-3243. There must

be a factual basis stated and the reasons given why it cannot present facts essential to

its opposition of the motion. Id.
Stark County, Case No. 2017CA00069                                                          14


       {¶36} In his untimely response to the motion for summary judgment, appellant

requested the trial court permit him to conduct discovery, but did not attach an affidavit to

his response pursuant to Civil Rule 56(F). In the affidavit of appellant he filed on March

27, 2017, after his response deadline had passed, appellant avers in his affidavit that he,

“had heart bypass surgery performed on August 22, 2016, and am scheduled for bladder

surgery on October 20, 2016, and because of my ill health, I need additional time to assist

my lawyer in conducting discovery and responding to any motion for judgment.” Appellant

does not set forth any reason why he could not present by affidavit facts sufficient to justify

his opposition in March of 2017. Accordingly, the trial court did not abuse its discretion in

denying appellant’s motion to continue and/or permit discovery.

                                         Integration Clause

       {¶37} Additionally, we find the trial court did not err in its granting of summary

judgment due to the integration clause contained in the lease purchase agreement. It is

a well-settled principle of contract law that the parties’ intentions be ascertained from the

contract language. Jackson v. Stocker Dev. Ltd., 5th Dist. Tuscarawas No. 2008 AP 034

0029, 2008-Ohio-5337, citing Inland Refuse Transfer Co v. Browning-Ferris Indus., 15

Ohio St.3d 321, 474 N.E.2d 271 (1984). If a contract is clear and unambiguous, then its

interpretation is a matter of law and there are no issues of fact to be determined. Id. A

court cannot in effect create a new contract “by finding an intent not expressed in the

clear language employed by the parties.” Alexander v. Buckeye Pipe Line Co., 53 Ohio

St.2d 241, 374 N.E.2d 146 (1978). The Ohio Supreme Court has held, “when two parties

have made a contract and have expressed it in writing to which they have both assented

as the complete and accurate integration of that contract, evidence, whether parole or
Stark County, Case No. 2017CA00069                                                      15


otherwise, of antecedent understandings and negotiations will not be admitted for the

purpose of varying or contradicting the writing.” Ed Schory & Sons, Inc. v. Son Nat’l Bank,

75 Ohio St.3d 433, 662 N.E.2d 1074 (1996).

      {¶38} This Court has consistently upheld the validity of properly drafted integration

clauses in contract, as has the Ohio Supreme Court. Jackson v. Stocker Dev. Ltd., 5th

Dist. Tuscarawas No. 2008 AP 034 0029, 2008-Ohio-5337 (holding the integration clause

on the real estate purchase agreement controls); Developers Diversified Realty Corp. v.

Cicchini, 5th Dist. Stark No. 1996CA00007 (holding representations prior to the

agreement will not be considered due to the integration clause); Tippel v. R.C. Miller

Refuse Service, Inc., 5th Dist. Stark No. 1999CA00244, 2000 WL 222166 (Feb. 14, 2000)

(stating the integration clause precludes consideration of parole evidence); Layne v.

Progressive Preferred Ins. Co., 5th Dist. Stark Nos. 2002CA00327, 2002CA00335, 2003-

Ohio-3575 (finding that, as a matter of law, the written agreement’s integration clause

nullified the alleged oral settlement between the parties); Ed Schory & Sons, Inc. v. Son

Nat’l Bank, 75 Ohio St.3d 433, 662 N.E.2d 1074 (1996); Aultman Hospital Assn v.

Community Mut. Ins. Co., 46 Ohio St.3d 51, 544 N.E.2d 920 (1989) (stating when an

agreement is integrated into an unambiguous contract, intentions that are not expressed

in the writing are “deemed to have no existence”).

      {¶39} In this case, we find the lease purchase agreement is unambiguous. The

first paragraph of the agreement states the parties to the agreement are appellees

(“Sellers”) and appellant (“Purchaser”).    The lease purchase agreement was dated

November 10, 2011 and executed November 10, 2011 in the presence of a notary. The

lease purchase agreement provides, “[t]his agreement constitutes the whole agreement
Stark County, Case No. 2017CA00069                                                        16


between the parties. There are no terms, obligations, covenants, or conditions other than

contained herein. No modification or verification thereof shall be deemed valid unless

evidenced by an agreement in writing.” In appellant’s answer and counterclaim, he states

that, “on or about November 1, 2011, Plaintiffs and Defendant entered into a contract

handwritten in Arabic, whereby the said Plaintiffs would acquire title on behalf of the

Defendant, so that the Defendant could purchase that certain real estate * * *.”

Accordingly, the purported Arabic agreement that was entered into prior to the November

10, 2011 lease purchase agreement and the statements contained in appellant’s affidavit

that contradict the terms of the November 10, 2011 lease purchase agreement are parole

evidence of an antecedent understanding that this Court is precluded from considering

as a matter of law. Thus, the trial court’s grant of summary judgment was not erroneous.

       {¶40} For the foregoing reasons, we overrule appellant’s first assignment of error.

                                                II.

       {¶41} In his second assignment of error, appellant contends that, pursuant to the

documents set forth in his affidavit and accompanying documents, the agreement

between appellant and appellees constitute a financing agreement/equitable mortgage

and the trial court erred in failing to consider this argument. Appellant cites Wilson v.

Giddings, 28 Ohio St.554 (1876) in support of his argument. We disagree with appellant.

       {¶42} For the reasons stated in our first assignment of error, the trial court did not

err in not considering appellant’s affidavit and the alleged Arabic agreement.

       {¶43} Further, in this case, the intent of the parties is spelled out in the contract.

When confronted with an issue of contract interpretation, our role is to give effect to the

intent of the parties. McDonald v. Canton Medical Education Foundation, Inc., 5th Dist.
Stark County, Case No. 2017CA00069                                                      17


Stark No. 2012CA00240, 2013-Ohio-3659. We presume the intent of the parties is

reflected in the language of the contract and we will look the plain and ordinary meaning

of the language used in the contract unless another meaning is clearly apparent from the

contents of the agreement. Id.

      {¶44} On the first page of the lease purchase agreement, payment of rent was

expressly made a consideration for the lease and right to purchase, as it provides, “in

consideration of the rental payments and all the agreements contained herein, Seller

hereby agrees to lease and sell, and Purchaser agrees to lease and purchase that certain

premises located at 125 12th Street NE, Canton, Ohio, 44704.” Payment of the rent was

mandatory pursuant to the agreement, as the contract states, “Purchaser shall pay as

rent for the property * * *.” Additionally, pursuant to paragraph 11 of the lease purchase

agreement, “Purchaser shall be responsible for the payment of all delinquent real estate

taxes and assessments, all current real estate taxes and assessments, and all future real

estate taxes and assessments with respect to the Premises.” The default provision of the

lease purchase agreement specifically provides, “If Purchaser fails to perform any of the

covenants provided in this Agreement, including, but not limited to payment of rent and

said default continues for a period of six months, Seller may * * * declare the lease ended

and enter into possession of the Premises.”

      {¶45} Thus, pursuant to the plain and ordinary meaning of the language used in

the contract, appellant had the option to purchase the premises and have any payments

made under the lease applied to the purchase so long as he was not in default of the

agreement, which required the payment of rent and real estate taxes by appellant. The

language in the document is unambiguous as to the intent of the parties and the intention
Stark County, Case No. 2017CA00069                                                         18

of the parties is clearly stated in the document. As noted by the 10th District in GLIC Real

Estate Holdings, LLC v. Bicentennial Plaza Ltd., 10th Dist. Franklin No. 11AP-474, 2012-

Ohio-2269, there is no Ohio case that extends the principle of Wilson, the case cited by

appellant in support of his argument, to leasehold interests. The Tenth District further

stated, “fairness dictates that the contract language by enforced to carry out the intent of

the business entities rather than extending the rule of Wilson in a case of first impression.”

Id.

       {¶46} Accordingly, appellant’s second assignment of error is overruled.

       {¶47} Based on the foregoing, appellant’s assignments of error are overruled.

The April 10, 2017 judgment entry of the Stark County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur
