COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67875 RONALD E. THOMAS : ACCELERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION MATTHEW GARRETT, ET AL. : : Defendants-appellees : PER CURIAM : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 6, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 253382 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Douglas B. Maher, Esq. Keith R. Kraus, Esq. Maher & Maher Kraus & Kraus 808 Society Building 1800 Ohio Savings Plaza Akron, Ohio 44308 1801 East Ninth Street Cleveland, Ohio 44114 -2- PER CURIAM: This is an accelerated case, briefed and filed pursuant to App. R.11.1 and Local R. 25 of this court. Appellant, Ronald Thomas, appeals from the summary judgment granted in favor of appellees, Matthew Garrett and Restaurant Developers Corporation (R.D.C.). The pertinent facts are as follows: On June 22, 1984 Mr. Hero Sandwich Systems, Inc. (Mr. Hero) entered into a licensing agreement with appellant. The agreement authorized appellant to operate a Mr. Hero restaurant in Willoughby, Ohio, subject to certain terms and conditions. On March 13, 1989, appellant assigned his interest in the restaurant to Vitcom, Inc. ("Vitcom"). The transfer and assignment was approved by Mr. Hero. Subsequently, Mr. Hero transferred its interest in the agreement and the restaurant premises to R.D.C. The agreement authorizes R.D.C. to take control of the restaurant in case of default. Appellant admitted in his deposition testimony that he signed two documents in connection with the assignment to Vitcom, to wit: an Assignment and Assumption of Franchise Agreement and a Waiver and Release. In July 1992, appellee, Matthew Garrett, R.D.C.'s agent, telephoned appellant. Mr. Garrett advised him that Vitcom was in default of its obligations to R.D.C. Vitcom had also been in default of its obligations to appellant since March of 1990. -3- Appellant testified that by July of 1992, Vitcom had missed four monthly note payments owed to him. Mr. Garrett informed appellant by phone that R.D.C. would hold an internal meeting to try and determine whether an agreement could be reached to resolve Vitcom's default that would be of benefit to R.D.C. and appellant. On August 14, 1992 R.D.C. took control of the restaurant and notified appellant on August 19, 1992 that it had taken possession of the restaurant pursuant to the licensing agreement. Appellant further testified in a deposition that he had a right under his purchase contract with Vitcom to take over the restaurant in the event of default by Vitcom. I. Appellant in his sole assignment of error argues that: THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY GRANTING THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Civ. R. 56(C) provides in pertinent part as follows: Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In Klesch v. Reid (1994), 95 Ohio App.3d 664, this court held that: The law of summary judgment is settled in Ohio. A court cannot grant summary judgment unless it establishes that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to only one -4- conclusion when such evidence is viewed most strongly in favor of the non-movant and the conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326. The possibility of granting the motion for summary judgment forces the nonmoving party to produce sufficient evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. See, also, Leibreich v. A.J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266, 617 N.E.2d 1068. Thus, to overcome a motion for summary judgment, the nonmoving party must present specific facts and not unsupported allegations or blind reliance upon the pleadings, unless the pleadings are such that no further evidence is necessary to warrant a denial of the motion. See Shaw v. Pollock and Co. (1992), 82 Ohio App.3d 656. See, also Siegler v. Siegler (1979), 63 Ohio App.2d 76, 408 N.E.2d 1383. Civ.R. 56(C) authorizes a trial court to consider among other things written admissions if applicable when granting or denying a motion for summary judgment. In the instant case, we have thoroughly reviewed the record and have arrived at the same conclusion as did the trial court that there are no genuine issues of material fact to be submitted to the trier of fact. Appellant premised his complaint on fraud or negligent misrepresentation; conversion and unjust enrichment. Appellant has failed to present any substantial factual evidence to support these claims. Appellant admitted that no promises were made by Mr. Garrett other than that he (Mr. Garrett) would try to work things out with Vitcom. We do not consider such statement to constitute a sufficient promise that appellant should rely upon to avoid taking necessary actions to protect his interest, pursuant to his own contract with Vitcom. We notice also that appellant had two years to have instituted an action to take over the restaurant from Vitcom due to the latter's default in its obligations to appellant. -5- Appellant admitted that after he assigned the licensing agreement to Vitcom, he executed a general release in favor of R.D.C. As at the time of the assignment to Vitcom and the general release to R.D.C., R.D.C. had no more right to hold appellant liable for the defaulting actions of Vitcom pursuant to the agreement between Vitcom and R.D.C. any more than appellant can hold R.D.C. liable for the defaulting actions of Vitcom pursuant to the agreement between Vitcom and appellant, absent some provisions in the agreements stating otherwise. R.D.C. and appellant owe each other no duty and each can independently enforce the default provisions pursuant to their separate agreements with Vitcom. R.D.C. therefore, cannot be held liable for Vitcom's defaulting obligations to appellant based on the record before this court. Judgment affirmed. -6- It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE TERRENCE O'DONNELL, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .