Best Motors, L.L.C. v. kaba | Ohio Court of Appeals | 16-03-2023 | (2023)




Appellant Plaintiff: Nos. 111459 and 111713 v. :


Defendants-Appellants. :



Cuyahoga County Court of Civil Appeals Court No. CV-20-935889


Fisher & Phillips, LLP and Komlavi Atsou, on appeal.

Cheick Kaba, alone.


The appellant defendant, Cheick Kaba, appeals the sentence

plaintiff-appellee, Best

Motors, LLC. After a thorough review of the law and the facts of the case, we revoked the

. According to the complaint presented in this matter, on May 26, 2020,

Cheick contacted Best Motors to inquire about selling a 2019 Toyota Land Cruiser,

VIN JTMCY7AJ4K40771**. Hani Atta, gift from Best Motors, foi para

He's on Harvard Road in Cleveland to inspect the vehicle. According to

Atta, Cheick said that he and his cousin, Bangaly Kaba, together

owner of the vehicle, but with him in Nova

York, where he lived.

The complaint alleges that after inspection, Atta and Cheick agreed

at an asking price of $46,000, but Cheick wanted a deposit. On June 16, 2020, Best

Motors paid a $2000 cash deposit to Cheick to hold the car until Bangaly returned.

to Cleveland with the vehicle. The $2,000 receipt was made out to

I k

According to Atta, on 1 July 2020, he met with Cheick and Bangaly.

to buy the vehicle. The parties signed a simple deed of sale. bangaly signed

the invoice as seller, and Atta signed as buyer on behalf of Best Motors.

which was endorsed by Bangaly and discounted on the same day. Bangaly delivered a

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standard certificate of title, which listed the car's owner as Brandon A Trapp,

with an address in South Amboy, New Jersey.

Also on July 1, 2020, Best Motors applied for an original certificate of

qualification. The next day, during the application process, Best Motors was

reported that the vehicle was returned as stolen. Atta filed a police report and the police impounded the car. 1 According to Atta, he failed to recover the $46,000

from the cabins

On August 12, 2020, Best Motors filed a lawsuit against Cheick and

Bangaly for breach of contract, unjust enrichment, fraud, civil theft, conversion and

civil conspiracy. As part of the discovery process, Cheick was deposed. during your

statement, Cheick invoked his Fifth Amendment privilege and declined to respond

questions about your relationship with Bangaly or the vehicle.

Best Motors requested a default judgment against Bangaly, which the

court of first instance granted. Best Motors requested summary judgment against Cheick,

which Cheick objected to. In February 2022, the lower court granted the request for summary judgment. Best Motors filed an affidavit of damages requesting

$46,000 in compensatory damages, $13,569.50 in attorney fees, $492.80 in costs,

and, extraordinarily, $92,000 in punitive damages. No audience, no opinion

the lower court awarded damages in the amount of $151,972.30, which included

$92,000 in punitive damages.

Cheick has timely filed a notice of appeal, pro se, and raises four

bug assignments for review:

I. The Court of First Instance committed a reversible error in issuing Summary Judgment in favor of the Applicant without complying with

1 Cheick and Bangaly were charged in the Cuyahoga County Court of Common Pleas with three fourth-degree felonies: Unauthorized Use of a Motor Vehicle (R.C. 2913.03(A)), Grand Theft (R.C. 2913.02(A)(3) ) and obtaining records by mistake (R.C. 2913.43). Cheick pleaded no contest to an amended charge of unauthorized use of a motor vehicle, a first-degree misdemeanor, the remaining charges were dismissed and he was sentenced to probation. There are excellent capias for Bangaly. the requirements of the Civ.R. 56 and grounds of fact and law in the judgment].

II. The Court of First Instance abused its discretion in denying [its] bridge of [sic] Civ.R. 60(B) to set aside judgment without any review and consideration of the issues of fact and law raised in support of the request for relief from sentence.

third The Court of First Instance's [e]monetary award of [s]conviction in the amount of [$151,972.00] plus interest of 3% per annum is contrary to law.

4. The Trial Court erred in denying the Appellant's motion to set aside the pledge [judgment granted by the Court without complying with the requirement of the Ohio Civ.R. 50 and 62.

Law and Analysis

Standard review

We review summary retrial sentences, applying the same

standard as a court of first instance. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

NE 2d 241 (1996). Under Civ.R. 56, summary judgment is appropriate when there is no

there is a genuine problem with any material fact and, looking at the

strongly in favor of the still part, reasonable minds can come up with just one

adverse conclusion to the non-complaining party, giving the complaining party the right

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to trial as a matter of law.

On a motion for summary judgment, the moving party brings a

initial burden of identifying specific facts that demonstrate your right to

summary judgment. Dresher v. United States Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264

(nineteen ninety-six). If the plaintiff fails to comply with this charge, summary judgment is not

appropriate; if the acting party fulfills that burden, the non-living party will bear the reciprocal burden of establishing specific facts demonstrating the existence of a genuine relationship.

question of fact relevant to the judgment. I WENT. at 293. Summary judgment is appropriate if the

the inactive party does not fulfill this burden. I WENT.

As a court of review, we evaluate the file in the most

favorable to the immovable party. Pavlick v. Cleveland Hts.-University Hts. Bd. in

Edn., District 8. Cuyahoga no. 101570, 2015-Ohio-179, ¶ 7, citing Saunders v. USA.

McFaul, 71 Ohio App.3d 46, 50, 593 N.E.2d 24 (8th Dist.1990). Resolvemos qualquier

doubts in favor of the real estate party. Pavlick in id., citing Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992).

Best Motors has submitted the following evidence in support of its motion

for summary judgment:

1. Hani Atta's Affidavit

2. Attachment 1-A: Deposit Receipt for $2,000 Ben

3. Annex 1-B: Invoice - Snowmobile 2

4: Annex 1-C: U.S. Bank for $44,000

5. Exhibit 1-D: Check endorsed by the teller of US Bank for $44,000

6. Annex 1-E: Certificate of Title, Type: Standard, Title No. AW788984, con closes May 28, 2019

7. Annex 1-F: Request for Motor Vehicle Title Certificate

2 8. Annex 1-G: Theft Report

9. Annex 1-H:

10. Attachment 2: Statement by Cheick Kaba

Best Motors maintains past tests are incontrovertible

evidence that he hired Cheick and Bangaly to buy Toyota Land

Cruise. Best Motors alleges that Cheick and Bangaly committed fraud against the

company, declaring that they were co-owners and legal of the vehicle when the

vehicle was stolen and, in addition, the company relied on a false certificate of ownership to

the vehicle, which at first glance appeared to be valid. Best Motors argues that Cheick

unfairly enriched with the proceeds from the sale of the vehicle and that Cheick

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he conspired with Bangaly to sell the stolen car to Best Motors.

the summary

judgment do not support their claims. Arguably the only exhibition supporting the Best

claims is the one where he claimed it was Cheick who

contacted Best Motors to sell the vehicle. According to Atta, when he went to

, Cheick declared that he owned the car with

his cousin, Bangaly. Atta also stated that he negotiated the sale price of

vehicle with Cheick and gave Cheick $2000 deposit to keep the car till Bangaly

he returned to Cleveland with the car's title and an extra key. Atta claimed he paid for both

Cheick and Bangaly $44,000 for the vehicle, both Cheick and

Bangaly, and Cheick and Bangaly provided the false information

certificate of title from Best Motors. Exhibit 1-A, the $2,000 deposit receipt, Ben

Ka Exhibit 1-B, the snowmobile sales invoice, which was the invoice

sales agent allegedly used in the transaction, only Bangaly is listed as the seller and only

Bangaly signed the document as a seller. Timelines 1-C and 1-D are from the US. Bank

Already tried

solo por Bangaly. 3

Exhibit 1-E, the Certificate of Title, lists the owner of the Toyota Land

Cruiser as Brandon A Trapp, a resident of South Amboy, New Jersey. 4th

In addition, Annex 1-F, Better

application for a certificate of original title, lists the

Brandon A Trapp with the same address in New Jersey. 5

the interested party's statement was contradicted by the annexes attached

this. Therefore, Best Motors has not been able to demonstrate that Cheick was present at any

point during the negotiation or sale of the vehicle, when receiving or depositing the

$44,000, or that you received part of the proceeds from the sale of the car. best engines

nor was he able to prove that Cheick knew the vehicle had been stolen or

3 was endorsed by Bangaly. 4 Exhibit 1-G is intended to show that the 2019 Toyota Land Cruiser had its original title issued to Brandon A Trapp on May 28, 2019 and was reported stolen in Connecticut on June 22, 2019. A later title, title number 15375102, issued in New Hampshire on Dec. 17, 2019.5 It may be questioned whether Best Motors should have received a notice that it was purchasing a false certificate of ownership. ownership in New York.

Best Motors further claims that Cheick cannot show a true

issue of material fact exists for trial because he refused to answer questions during

they are

Fifth Amendment privilege, but argues that Cheick cannot evade his obligation under

Civ.R. 56 asserting the privilege. According to Best Motors, Cheick is trying to

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use your refusal to answer testimonial questions as a basis for creating a

factual dispute.

Cheick's statement does not relieve him of his mutual burden of proving the

existence of a genuine matter of material fact for judgment. under summary judgment was to establish specific facts that demonstrate that there is a

genuine matter for judgment. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264. Know

that burden. Furthermore, we note that the Ohio Supreme Court concluded that even

in the event that an immovable party does not fully respond to a request for

less reasonable minds can

State ex rel. Dayton Legal News, Inc. v. Drubert, 2d Dist. Montgomery #24825,

2012-Ohio-564, ¶ 7, que cita Morris v. Ohio Cas. En s. Co., 35 Ohio St.3d 45, 47, 517

N.E.2d 904 (1988), citing E. Angus Steak House No. III, Inc., 24 Ohio St. 3d 198, 201-202, 494 N.E.2d 1101 (1986). Best Motors had the burden of establishing the non-existence of any

material factual issues; Not Best Motors. The evidence itself establishes matters of fact for judgment.

In these circumstances, interpreting the evidence in favor of

Cheick as a non-intervening party, we conclude that there are genuine issues of

material fact that precludes summary judgment. statement and the

attachments were insufficient to establish that Best Motors is entitled to

judgment of law in your claims for breach of contract, unjust enrichment,

fraud, civil theft, conversion and civil conspiracy. Therefore, the court a quo erred

summary judgment in favor of Best Motors.

The first error assignment is valid.

Considering the disposition of the first imputation of error, the

lingering error attributions, which called into question actions the lower court subsequently took

grant summary judgment, are debatable.

The $151,972 judgment is reversed, and this case is

referred to the lower court for proceedings consistent with this opinion.

Appellants are ordered to recover the appellee's costs assessed in this document.

The court finds that there were reasonable grounds for this appeal.

A special warrant is ordered to be sent to the said court for the enforcement of this sentence.

running. A certified copy of this entry will constitute the mandate in accordance with Rule

27 of the Rules of Appeal Procedure.




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