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Caley v Glenmoor Country Club, Inc.

Case No. 2013 CA 00012 (OH Ct. App., Dist. 5, Nov. 4, 2013)

Defendant-Appellant, Glenmoor Country Club, Inc., appeals from the December 17, 2012, Judgment Entry of the Stark County Court of Common Pleas. Plaintiffs-Appellees, Ronald P. Caley, Susan Caley, Mark Gehring and Trudy Gehring have filed a cross-appeal.

STATEMENT OF THE FACTS AND CASE



This case involves four Appellees/Cross-Appellants: Mark and Trudy Gehring (the "Gehrings") and Ron and Susan Caley (the "Caleys") (collectively, "Appellees"), and Appellant/Cross-Appellee Glenmoor Country Club, Inc. ("Appellant" or "Glenmoor"). This case arises from a dispute over the return of Appellees' membership contributions from Glenmoor following their resignations from the Club.

Glenmoor is a for-profit corporation located in Canton, Ohio. Glenmoor is a country club with golf, spa, dining, banquet and business meeting facilities as well as overnight accommodations.

In 1990, the right of individuals to acquire equity memberships in Glenmoor was established by Bert and Iris Wolstein, through an entity known as Glenmoor Properties Limited Partnership. Such equity memberships in Glenmoor are sold pursuant to the Club's Membership Plan. (T. at 249-50, 280).

Equity golf members and non-equity golf members have exactly the same rights with respect to use of Glenmoor's club and golf facilities. Id. Equity members pay a higher initiation fee upon joining the Club than non-equity members do. (T. at p. 3, 6). At the time of trial, equity golf membership initiation fees were $30,000 and non-equity golf membership initiation fees were $15,000. Id. Equity memberships allowed for the return of either 80% of the current value of the equity initiation fee or 100% of the member’s initial investment. Id. Non-equity members do not receive any refund of their initiation payment. Id.
 

 

Judge(s): John W. Wise
Jurisdiction: Ohio Court of Appeals, District 5
Related Categories: Contracts
 
Court of Appeals Judge(s)
Craig Baldwin
Sheila Farmer
John Wise

 
Appellant Lawyer(s) Appellant Law Firm(s)
Kristin Erenberg Walter Haverfield
Mark Fusco Walter Haverfield

 
Appellee Lawyer(s) Appellee Law Firm(s)
Patrick Noser Critchfield Critchfield & Johnson
John Schaeffer Critchfield Critchfield & Johnson

 

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competent to contract and who signs a written document without reading it is bound by of goods, a service, a franchise, or an intangible, to an individual for purposes that are {¶69} as set forth in r.c. chapter 1345, the ocspa defines “consumer [cite as caley v. glenmoor country club, inc., 2013-ohio-4877.] other classifications, including partnership and association, which are included in the resignation list continue to be charged dues, the amount that the resigned member {¶33} “iv. the trial court erred in finding that the contract amount equal to four equity memberships, it repurchases one membership from a of their claims that the club, through myron vernis, orally represented to them that upon hon. john w. wise, j. membership and board meeting. as a result of this meeting, certain portions of of “false information”. we agree with the trial court. hon. craig r. baldwin {¶71} evidence was presented that mr. caley’s membership contribution, dues {¶29} appellant now appeals, and appellee cross-appeals, from the trial court’s intended, when he could have known the truth by merely looking when he signed.”). john h. schaeffer mark s. fusco {¶13} on or about february 20, 1990, glenmoor issued a membership plan, {¶66} we further note that the damage calculation may be different for each set and regulations of the club. (t. at 231-233). he also admitted that he never requested made to them. r.c. §1345.01(a). although “individual” is not defined in this section, it is among several abm farms, 81 ohio st.3d at 503, 692 n.e.2d 574. see, also, mcadams v. mcadams december 17, 2012, judgment entry, raising the following assignments of error: glenmoor was established by bert and iris wolstein, through an entity known as contract is unconscionable”). {¶58} we have previously found the trial court’s finding of unconscionability in november 13 and 14, 2012. during the course of the trial, the court heard testimony relative bargaining position of the contracting parties, e.g., ‘age, education, intelligence, 100% of what you invested, upon resignation from the club. (t. at 148-149, 152). he {¶5} equity golf members and non-equity golf members have exactly the same country club since 1990, and that during that time he has served on different glenmoor country club, inc. to use the club facilities after his or her membership has been repurchased." $4,774.95 to glenmoor on its counterclaim against the gehrings. thus, the total award use of the facilities after resignation. (t. at 105, 106). members shall not be entitled to use the club facilities after his or her resignation." rules contained in the 1992 code of regulations. (t. at 60-61, 62-63, 65). refusal of a party to recognize the existence of the contract or the doing of something regulations, we do not find that such contradiction renders the contracts between resignation. mr. vernis testified that by the end of the second meeting, mr. gehring let primarily personal, family, or household, or solicitation to supply any of these things.” {¶81} for the foregoing reasons, the judgment of the court of common pleas of party who, in the course of his business, profession or employment, or in any other december 17, 2012, judgment entry of the stark county court of common pleas. he was never given a copy of the club’s bylaws/code of regulations or membership not an accurate statement of the club’s current policy, which is to deny members the evidence was presented to establish either substantive or procedural unconscionability. the club. nothing prevented appellees, both successful business men, from seeking was both unconscionable and breached. suspension from club facilities based on such delinquencies. (t. at 224). he admitted be permitted to use the club facilities after resignation. (t. at 131). she further stated, incur any additional charges, adjusts the resigned member's charges, issues a final statement of the facts and case must allege and prove a ‘quantum’ of both prongs in order to establish that a particular their club memberships in september, 2011. contract they entered into with glenmoor. stark county, case nos. 2013 ca 00012 and 2013 ca 00018 7 pecuniary loss; 4) as a result of justifiable reliance on the information; 5) if the one hon. sheila g. farmer terms at issue in any given case, no generally accepted list of factors has been changed in 1992 to state in relevant part that "[a] resigned member shall not be entitled {¶50} in its third, fourth and fifth assignments of error, appellant glenmoor {¶65} we therefore remand this matter to the trial court for a determination of on his dues. (t. at 222). he stated that he was suspended or threatened with judges: stark county, case nos. 2013 ca 00012 and 2013 ca 00018 14 {¶56} here, the trial court made no finding, and upon review of the record we 158 ohio st. 450, 110 n.e.2d 598 (1953), paragraph one of the syllabus. {¶48} while this court finds that a discrepancy did exist between the current iii., iv. and v. pleas, case no. 2012 cv 00138 refund their $30,000 equity membership initiation fees immediately upon their that at the time of resignation, he owed the club approximately $4,700 on account. (t. at without consideration of parol evidence, i.e., evidence that would contradict or vary the committees, the board of governors, and as past club president. (t. at 38-39). he that the application he signed stated that upon resignation by a member, the club must quarterly dues but were prohibited from using the club facilities. cross-appeal the last twenty years. (t. at 248, 271). he explained that the club is governed by a set resignation they would receive a refund of their $30,000 initiation fee. appellees receives notice from the membership director that an equity member has resigned, he ___________________________________ stark county, case nos. 2013 ca 00012 and 2013 ca 00018 16 {¶64} in the instant case, we find that the only term of the membership contract been so long that most of the resigned members never receive any of their equity agree in part and disagree in part for the following reasons. claims that he was never told that if he resigned his membership that he would be repurchase of the membership by the club. this court finds that the provision contained in favor of appellees was $55,225.05. {¶62} while appellees make much of the fact that they claim to have had no snapp, 98 ohio app.3d 597, 600, 649 n.e.2d 42 (2nd dist.1994). oral and written contract with conflicting terms.” plan. (t. at 154). he further admitted that he never requested a copy of such stark county, case nos. 2013 ca 00012 and 2013 ca 00018 21 stark county, case nos. 2013 ca 00012 and 2013 ca 00018 13 {¶30} “i. the trial court abused its discretion when it sua such time as their membership is repurchased or their equity is depleted. fourth membership issued be a resigned membership provided that the category {¶78} the trial court found that cross-appellants failed to establish the element {¶77} the doctrine of negligent misrepresentation provides recovery where: 1) a stark county, case nos. 2013 ca 00012 and 2013 ca 00018 5 subsequent breach of an oral contract in this matter. member’s initial investment. id. non-equity members do not receive any refund of their whether the terms were explained to the weaker party, whether alterations in the printed sponte amended the pleadings to include the defense of illegal {¶16} mr. ricker further testified that nothing in the code of regulations or the resignation prior the effective date of this letter, they were “grandfathered” in under the in the 1992 code of regulations is the controlling contract provision and that the club date of judgment entry: november 4, 2013 reversed in part and remanded for further proceedings consistent with his opinion. received from ms. fernandez in 2007 spelled out the terms of the resignation process. has sold five equity and fifty-three non-equity golf memberships. (t. at 93). am. v. automatic sprinkler corp., 67 ohio st.2d 91, 98, 423 n.e.2d 151 (1981). 146 (1978). question.’ ” id. at 834, 621 n.e.2d 1294. (citations omitted). the most recent version of the code of regulations, the 1992 version, states that a a copy of the bylaws or inquired further about same. (t. at 233). he further admitted definition, we must apply the ordinary and common understanding of the term ohio consumer sales practices act. (emphasis added). (t. at 44-48). case nos. 2013 ca 00012 stark county, case nos. 2013 ca 00012 and 2013 ca 00018 6 {¶23} during mark gehring’s testimony, he admitted that the membership maintains on his computer. he explained that glenmoor repurchases the equity account at the time of resignation, $11,028.99. hon. john w. wise return of either 80% of the current value of the equity initiation fee or 100% of the farmer, p. j., and which pertains to exactly the same subject matter, yet has different terms.” marion prod. for personal, family, or household purposes, the cspa does not apply here. a country club with golf, spa, dining, banquet and business meeting facilities as well as testified that he is familiar with many of the documents related to the club and club removes all codes from the system so the resigned member cannot use club facilities or recalled that it was at that orientation dinner that they were approached by myron club usage policy following resignation and that set forth in the 1992 code of {¶26} in addition to the above live testimony, the trial court was also presented camera and video, inc., 86 ohio app.3d 826, 834, 621 n.e.2d 1294 (2nd dist 1993). rights with respect to use of glenmoor's club and golf facilities. id. equity members pay {¶14} in 1992, the original code of regulations was changed during a general fifth appellate district resigned member shall not be entitled to use the club facilities after his or her statement, and places the resigned equity member on a "repayment list" which he with a written resignation dated october 3, 2011. glenmoor denies receiving a copy of {¶34} “v. the trial court erred in finding the existence of an refund of his initiation fee upon resignation. his wife were invited to attend an orientation at the club with joe ostrowske and his glenmoor. such written contract addresses how and when a member will receive a wise, j. the 1992 version which states that “a resigned member shall not be entitled to use club resignation, they failed to prove that any such statements or promises were in fact ever {¶10} on january 12, 2012, appellees filed suit seeking the return of each of president was sent to the club members stating that the club was reverting back to the policy back to the original 1990 policy in the mid 2000’s, around 2004. (t. at 285, 310). and communicating the information. delman v. city of cleveland hts., (1989), 41 ohio {¶60} “ ‘[b]reach,’ as applied to contracts is defined as a failure without legal in the court of appeals for stark county, ohio understands the rules and regulations contained in the club’s code of regulations and membership at the top of the resignation list once the club receives the equivalent of regulations on their own, without a general membership meeting and a vote by the {¶67} appellant’s third, fourth and fifth assignments of error are overruled in stark county, case nos. 2013 ca 00012 and 2013 ca 00018 8 {¶12} michael ricker testified that he has been a member of the glenmoor {¶72} evidence was also presented that cross-appellant caley considered his definition of “person” in r.c. §1345.01(b): “ ‘person’ includes an individual, corporation, absence of meaningful choice on the part of one of the parties to a contract, combined sold pursuant to the club's membership plan. (t. at 249-50, 280). membership plan allowed the board of governors or the president to modify the code of {¶19} gretchen fernandez testified that she has been the membership director {¶6} in 1997, ron and susan caley became equity golf members at glenmoor. cross-assignments of error {¶42} “substantive unconscionability involves those factors which relate to the st.3d 1, 4, 534 n.e.2d 835. unconscionability {¶17} finally, mr. ricker testified that in 2004 or 2005, a letter from the club proceedings consistent with the law and this opinion. “individual.” r.c. §1.42. damages for the breach of contract for the period of time appellees were charged after resignation. (t. at 251-252). he admitted that prospective members are not given a time their membership is repurchased. (t. at 131-132). she stated that since 2005, she appellant/cross-appellee : case nos. 2013 ca 00012 and -vs- {¶39} in its first and second assignments of error, appellant glenmoor argues against plaintiffs/appellees on their claim for violations of the plaintiffs-appellees, ronald p. caley, susan caley, mark gehring and trudy gehring whether they are commercially reasonable,” and procedural unconscionability, i.e. purchased it. breach of written contract stark county, case nos. 2013 ca 00012 and 2013 ca 00018 2 four equal membership initiation fees from new members. thus, once the club has an {¶2} this case involves four appellees/cross-appellants: mark and trudy stark county, case nos. 2013 ca 00012 and 2013 ca 00018 4 ronald p. caley, et al. : ___________________________________ stark county, case nos. 2013 ca 00012 and 2013 ca 00018 9 and that he did not resign his membership in 2007. (t. at 126). tenure at the club. (t. at 319). {¶24} myron vernis testified he has been the general manager of the club for with his corporate checking account and that when he applied for membership, he their $30,000 membership contributions, totaling $60,000. glenmoor counterclaimed for he testified that such policy change was enacted by mr. wolstein, the current owner of hon. craig r. baldwin, j. member requests a copy of the by-laws or code or regulations, she provides them with {¶53} at trial, a great deal of testimony was presented by appellees in support costs assessed to appellant and appellees equally. because he was interested in playing golf. (t. at 148). he stated that he was told that {¶18} he further explained that if a member, like himself, submitted their {¶54} here, appellees each entered into a written membership contract with (1909), 80 ohio st. 232, 240-241, 88 n.e. 542 (“a person of ordinary mind cannot be that upon request for a copy of the club’s bylaws, she provides the 1992 code of the gehrings owed the club $4,774.95. (t. at 325). he further testified that the club hon. john w. wise {¶75} cross-appellant’s first assignment of error is overruled. stated that when a new member joins the club, she explains to them that they would not its terms and cannot avoid its consequences.” hook v. hook (1982), 69 ohio st.2d 234, an unequal bargaining position in terms of the contract. there was no evidence of developed for this category of unconscionability. however, courts examining whether a for the past seven years. (t. at 90). she stated that she is responsible for recruiting vernis to explain the difference between the equity and non-equity memberships, documents. (t. at 186). mr. caley also testified that while he would characterize his {¶40} under ohio law, a contract clause is unconscionable where there is the agree. {¶59} in order to succeed on a breach of contract claim, the plaintiff must this written resignation. (id.). luntz v. stern, 135 ohio st. 225, 20 n.e.2d 241 (1939), paragraph five of the syllabus. he was not ready to resign at that time. (t. at 165). he admitted that the documents he ___________________________________ at the time of trial, equity golf membership initiation fees were $30,000 and non-equity resigned member. resigned members are still charged quarterly dues, which mr. i. not go beyond the plain language of the agreement to determine the intent of the {¶25} the trial court also heard brief testimony from aaron schaeffer, the resignation to glenmoor on september 30, 2011. glenmoor recognized this resignation of error out of order. excuse to perform any promise which forms a whole or part of a contract, including the at 125). she further stated that he did not contact her again concerning his resignation, critchfield, critchfield walter haverfield initiation fee back because it is completely depleted before they reach the top of the {¶7} in 2004, mark and trudy gehring became equity golf members at in collins, the court explained the difference between the two concepts as follows: 237). mr. gehring admitted that during his club membership, he frequently fell behind {¶57} we therefore find that the trial court erred in finding the existence and that the trial court erred in making a finding of unconscionability in this matter. we 238, 23 o.o.3d 239, 431 n.e.2d 667. according to the ohio supreme court, the “legal forth in 1990. (t. at 94). she stated that when a current member or a prospective stark county, case nos. 2013 ca 00012 and 2013 ca 00018 12 {¶21} ms. fernandez further testified that she is aware that there is a vernis on two separate occasions in september, 2011, in order to discuss his law dictionary (5 ed.rev.1979) 1367. could or could not use the club facilities after tender of resignation and prior to stark county, case nos. 2013 ca 00012 and 2013 ca 00018 20 application he signed upon joining stated that he was bound by the bylaw and rules 1992. the 1992 code of regulations modified a resigning member's right to use the “those factors bearing on the relative bargaining position of the contracting parties.” id. their equity, up until their memberships are repurchased, but they would not be allowed glenmoor's code of regulations were amended and changed, effective november 24, breach of oral contract remanded facilities after his or her membership has been repurchased.” she admitted that was {¶51} “a written contract must be construed and interpreted from its four corners generally ball v. ohio state home servs., inc., 168 ohio app.3d 622, 2006-ohio-4464, ca2010-08-216, 2011-ohio-1720. from michael ricker, gretchen fernandez, myron vernis, ronald caley, mark gehring, testified that he tendered his letter of resignation to the club on october 3, 2011. (t. at have no relevance to a business entity. therefore, as used in r.c. §1345.01(a), new memberships sold, or that he would not be able to use the club facilities while and commonsensical axiom that one must read what one signs survives” to this day. appellees again cross-appealed. upon glenmoor's motion, this court consolidated the golf membership initiation fees were $15,000. id. equity memberships allowed for the {¶28} glenmoor filed a timely notice of appeal on january 16, 2013; appellees government, governmental subdivision or agency, business trust, estate, trust, {¶80} cross-appellants second assignment of error is overruled. stark county, case nos. 2013 ca 00012 and 2013 ca 00018 15 wife. (t. at 145-146). prior to this time, the caleys and the ostrowskes were members defendant breached his obligations; and (4) damages resulted from this breach. chaney membership plan as set forth in 1990 when he joined and as revised in 1992. (t. at 42). hon. sheila g. farmer glenmoor and appellees unconscionable. {¶49} appellant’s first and second assignments of error are sustained. two appeals on april 14, 2013. {¶79} while cross-appellants claim that they believed that glenmoor would contributions from glenmoor following their resignations from the club. : 2013 ca 00018 {¶52} an oral agreement cannot be enforced in preference to a signed writing {¶1} defendant-appellant, glenmoor country club, inc., appeals from the and other charges associated with use of the club and its facilities were paid with checks drawn on his business, l.a. copier company, an ohio corporation. with the deposition testimony of anthony spitale, who has served as glenmoor’s placed on a waiting list, that only one membership was repurchased for every four (4) inapplicability to businesses or similar entities. that statute lists several factors to be which was breached in this matter was that provision relating to whether a club member stark county, case nos. 2013 ca 00012 and 2013 ca 00018 11 against plaintiffs/appellees on their claim for negligent transaction in which he has a pecuniary interest, provides false information; 2) for the {¶15} both the 1990 and the 1992 code of regulations provided that every contract terms themselves and whether they are commercially reasonable. because the {¶70} moreover, r.c. §1345.03 provides further illustration of the ocspa's contradict the terms of a written contract intended to be the final and complete misrepresentation.” stark county, ohio years prior to their decision to resign their memberships. his inquiry, she sent him a copy of his membership application and the club bylaws. (t. stark county, case nos. 2013 ca 00012 and 2013 ca 00018 3 providing the information failed to exercise reasonable care or competence in obtaining terms of the contract. the parol evidence rule bars the use of extrinsic evidence to a higher initiation fee upon joining the club than non-equity members do. (t. at p. 3, 6). "appellees"), and appellant/cross-appellee glenmoor country club, inc. ("appellant" or {¶74} we therefore find that the trial court had competent, credible evidence to guidance of another party in its business transaction; 3) causing the other party to suffer 2013 ca 00018 220-221, 238). club's facilities after resignation. article x, section 8(d) of the code of regulations was hon. sheila g. farmer, p. j. expression of the contracting parties' agreement.” meade v. kurlas, 12th dist. no. {¶8} in late 2011, appellees each resigned their equity memberships and appellees/cross-appellants : stark county, case nos. 2013 ca 00012 and 2013 ca 00018 19 there was no evidence that appellees lacked a meaningful choice or that they were in involved are so one-sided as to oppress or unfairly surprise the other party.” black's r.c. §1345.03(b)(1) requires the court to consider whether the consumer has been {¶46} the party asserting unconscionability of a contract bears the burden of {¶73} since cross-appellant purchased this membership as an investment, not at prestwick country club. (t. at 169). at the orientation, they were given a tour of the 861 n.e.2d 553, ¶ 6; see also click camera, 86 ohio app.3d at 834, 621 n.e.2d 1294, within the membership plan set forth the process for handling equity member liability..... for appellees/cross-appellants for appellant/cross-appellee members concerning things such as billing and upcoming social events as well as inquiries concerning the resignation process. id. she recalled that mr. caley contacted discrepancy between the 1992 code of regulations and the membership plan as set unconscionability, i.e. “those factors which relate to the contract terms themselves and regulations, sometimes referred to as bylaws. (t. at 249-250). mr. vernis testified that fifth appellate district glenmoor country club, inc. : new members to join the club. (t. at 114). she testified that the membership application legal counsel to review the membership contract prior to joining. appellees were “individual” means “natural person.” & johnson 1301 east ninth street stark county, case nos. 2013 ca 00012 and 2013 ca 00018 18 {¶68} in their first assignment of error, cross-appellants assert that the trial ronald p. caley, et al. the parties' contract unconscionable. stark county, case nos. 2013 ca 00012 and 2013 ca 00018 17 sophisticated enough to appreciate the possibility of retaining counsel. instead, appearances: have not been permitted to use the glenmoor member facilities since the resignation of facilities, including the golf course, the locker rooms and the different restaurants. he 225 north market street, p. o. box 599 suite 3500 transaction” as “a sale, lease, assignment, award by chance, or other transfer of an item circumstances existing at the time of making of contract and in light of general resignations from the club. (article x, section 8, p. c-15). the original code of find no evidence, that the contract in this case was ambiguous. standard in the industry, and the ability to accurately predict the extent of future controller since november, 1998. mr. spitale, testified by deposition that when he this matter to be erroneous. appellees both entered into such contract willingly and used the club regularly for many checked the box marked corporate. (t. at 157-158, 176). mr. caley also testified that $30,000 to the caleys and $30,000 to the gehrings. the trial court also awarded records indicate the gehrings had been suspended on seven occasions during the commercial background and commercial needs of particular trade or case, clauses each testified about their recollection of joining the club. mr. caley testified that he and {¶45} the “basic test of unconscionability of contract is whether under : taken advantage of because of “physical or mental infirmities, ignorance, illiteracy, or {¶20} ms. fernandez stated that she also deals with questions from current (emphasis added). (t. at 48-52, 54-55). of documents collectively known as the membership plan which includes the code of membership as a “family membership”, he paid his membership dues and club charges v. hoskins, 4th dist. no. 95ca497, 1996 wl 30018, (jan. 24, 1996), fn. 5, quoting parties. see alexander v. buckeye pipe line co., 53 ohio st.2d 241, 246, 374 n.e.2d patrick e. noser kristin r. erenberg her in 2007 about resigning his membership. (t. at 124). she stated that in response to {¶31} “ii. the trial court erred as a matter of law in finding {¶55} when the terms of a contract are clear and unambiguous, a trial court may {¶11} a bench trial convened in the stark county court of common pleas on performance or a breach of a written contract, is a question of law for the court.’ ” koon : receives once he or she reaches the top of the equity resignation list is reduced either the caleys or the gehrings and was further not proven by the parties. no judgment: affirmed in part; reversed in part and ii. error: glenmoor properties limited partnership. such equity memberships in glenmoor are v. ramsey, 4th dist. no. 98ca614, 1999 wl 217656, (apr. 7, 1999), citing doner v. court erred in denying their consumer sales practices act claims. we disagree. heard to say that he was misled into signing a paper which was different from what he for the reasons stated in our accompanying memorandum-opinion, the {¶32} “iii. the trial court erred in finding that glenmoor which included a code of regulations. the original code of regulations contained terms were possible, whether there were alternative sources of supply for the goods in assignments of error : resell the membership before the refund can be issued. (t. at 234). mr. gehring inconsistent with its existence.” natl. city bank of cleveland v. erskine & sons, inc., regulations of the club, as they may be amended from time to time.” (t. at 119). she judgment of the court of common pleas of stark county, ohio, is affirmed in part, membership. (t. at 41-42). more specifically, he stated that he is familiar with and {¶27} on december 17, 2012, the trial court issued a judgment entry awarding vernis, the club’s general manager. (t. at 147). mr. caley testified that he asked mr. determination of commercial reasonableness varies with the content of the contract considered in determining whether an unconscionable trade practice has occurred. initiation payment. id. and placed him on the resignation repayment list. mr. gehring personally met with mr. {¶41} unconscionability embodies two separate concepts: (1) substantive {¶47} in the case sub judice, the issue of unconscionability was never raised by breached the parties' oral and written contract. him know that "he definitely was leaving the club." (t. at. 255). mr. gehring followed up membership could theoretically be worth more upon resignation than when he demanded the return of their $30,000 equity initiation fee. mr. caley sent a written {¶63} this court has followed “the well-settled principle that a person who is {¶3} glenmoor is a for-profit corporation located in canton, ohio. glenmoor is resignation list was typical in his experience. (spitale depo. tr., p. 18, lines 3-9). {¶61} “ ‘when the facts presented are undisputed, whether they constitute a i., ii. support its decision denying the cspa claim herein. stark county, ohio, is affirmed in part, reversed in part and remanded for further resignation list. glenmoor's controller testified that a ten (10) year waiting period on the appellant/cross-appellee with contract terms that are unreasonably favorable to the other party. collins v. click ___________________________________ business acumen and experience, relative bargaining power, who drafted the contract, board. (t. at 55-58). baldwin, j. concur. proving that the agreement is both procedurally and substantively unconscionable. see coercion or duress or that appellees were pressured into signing the contract. ___________________________________ stark county, case nos. 2013 ca 00012 and 2013 ca 00018 10 regulations which states that they are permitted to use the club facilities up until the membership desired by the new purchaser is available for membership. (t. at 74). country club membership to be an investment opportunity in that the value of his {¶36} “i. the trial court erred as a matter of law in ruling waiting for his membership to be repurchased. (t. at 150, 153). he further stated that claims which had not been resolved by the court's original december 17, 2012, quarterly. the length of time members must wait on the list has, as a practical matter, following factors: the fairness of the terms, the charge for the service rendered, the wooster, ohio 44691 cleveland, ohio 44114 appellees/cross-appellants joseph ostrowske and aaron schaeffer. copy of the membership plan. (t. at 254). mr. vernis testified that the club changed its {¶38} for ease of discussion, we will address some of appellant’s assignments o p i n i o n assistant controller of the club. he testified that he has worked in the controller’s office have filed a cross-appeal. breached its contract with appellees by not allowing them to use the club facilities until overnight accommodations. for six years. (t. at 315). mr. schaeffer testified that as of the end of the third quarter, the purchase of an equity membership allowed for the return of 80% of the value or original policy: members would still be required to pay dues, which would accrue against {¶22} the trial court also heard testimony from ronald caley and mark gehring. (t. at 189). the syllabus. {¶76} in their second assignment of error, cross-appellants claim that the trial judgment entry. glenmoor filed a second timely notice of appeal on january 29, 2013. character of proceeding: civil appeal from the court of common regulations at article x, section 8(d) stated in relevant part that "[a] resigned equity the club, without a vote by the members. (t. at 286-287, 310). she provides to prospective members consists of one page, front and back, and states court erred in denying their claims for negligent misrepresentation. we disagree. claims that the trial court erred in finding a breach of written and oral contracts. we of appellees in this matter, as appellees gehring resigned with an unpaid dues balance. court of appeals gehring (the "gehrings") and ron and susan caley (the "caleys") (collectively, credit assn. v. cochran (1988), 40 ohio st.3d 265, 533 n.e.2d 325, paragraph three of dues amount to approximately $6,500 per year. because the resigned members on the cross-appealed. the trial court then issued a nunc pro tunc judgment entry to address spitale keeps track of but does not bill immediately to the resigned member. these {¶43} “procedural unconscionability involves those factors bearing on the statement of the current policy of the club which prohibits a member from using the club jww/d 1024 ___________________________________ : {¶9} to date, appellees’ equity initiation fees have not been refunded and they -vs- : judgment entry {¶44} the issue of unconscionability is a question of law. see ins. co. of north {¶35} appellees have filed a cross-appeal, raising the following assignments of part and sustained in part. glenmoor. by: wise, j. contract based on unconscionability. he did make an inquiry into the resignation process on or about october, 2007, but that partnership, association, cooperative, or other legal entity.” in the absence of a statutory contend that such representations do not accurately reflect the terms of the written clearly states that members will be bound by the bylaws and rules and regulations of "glenmoor"). this case arises from a dispute over the return of appellees' membership knowledge of the terms of repurchase following resignation, the membership application to use club facilities after resignation. (t. at 58-60). demonstrate that: (1) a contract existed; (2) the plaintiff fulfilled his obligations; (3) the membership is repurchased. (t. at 251). he further testified that such is not a correct hon. craig r. baldwin citing white & summers, uniform commercial code (1988) 219, section 4–7 (“one an action on account against the gehrings for the outstanding amount due their club {¶37} “ii. the trial court erred as a matter of law in ruling particular limitations clause is substantively unconscionable have considered the “[t]he undersigned agrees to conform to and be bound by the bylaws and rules and inability to understand the language.” these criteria relate only to human beings and {¶4} in 1990, the right of individuals to acquire equity memberships in


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