COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68367 : NATIONAL CITY BANK : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION WILLIAM TROY AND PARTNERS, INC., : ET AL. : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 14, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-269030 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: CHARLES J. PALMERI, ESQ. RICHARD M. CONTE, ESQ. Charles J. Palmeri Co., L.P.A. 38033 Dodd Hill Drive 30100 Chagrin Boulevard Willoughby Hills, Ohio 44094 Suite 250 Pepper Pike, Ohio 44124 RICHARD A.F. MENDELSOHN, ESQ. 6175 S.O.M. Center Road, #210 Solon, Ohio 44139 - 2 - KARPINSKI, J.: Defendants-appellants Bartley and Terence Troy appeal from orders of the trial court granting summary judgment in favor of plaintiff-appellee National City Bank ("NCB") and dismissing their counterclaims for declaratory judgment. NCB filed this action in the trial court on April 18, 1994, to collect on a promissory note executed in 1983 by William Troy & Partners, Inc. ("Troy & Partners") guaranteed by defendants 1 Bartley and Terence Troy. The 1983 note consolidated two prior loans of $5,000 each into a new loan, with an additional advance, in the principal amount of $13,000, and added Terence Troy as an additional guarantor. Troy & Partners defaulted on the note and NCB made written demand in August, 1990, for payment on all guarantors. NCB and Terence Troy entered into a Forbearance Agreement on November 16, 1990. NCB agreed to forebear from pursuing its remedies against all parties arising out of the default on the 1983 note upon the condition that Terence pay NCB $250 per month for 60 months. Terence subsequently defaulted under the Forbearance Agreement and NCB demanded repayment from Troy & Partners, Bartley and Terence Troy prior to filing this action. Bartley and Terence Troy filed separate answers to NCB's complaint raising similar affirmative defenses and counterclaims 1 The loan was also guaranteed by William Troy, who was discharged in bankruptcy prior to the filing of this action and is not a party to this appeal. - 3 - for declaratory judgment. Troy & Partners did not file an answer to NCB's complaint or otherwise defend against NCB's action. NCB filed a motion for summary judgment against Bartley and Terence Troy on October 21, 1994. Bartley and Terence Troy filed joint briefs in opposition. The trial court granted NCB's motion for summary judgment in the following order journalized December 20, 1994: Plaintiff motion for SJ is granted. Judgment for Plaintiff against defendants Bartley and Terence Troy, jointly and severally, in the amount of $8,398.42 plus interest at the rate of 9.25% per annum from 10-18-94. Defendants Terence and Bartley Troys' counterclaims are dismissed pursuant to Civ.R. 12(F). Default hearing held 12-19-94 as to plaintiff's claim against defendant William Troy and Partners, Inc. Judgment for Plaintiff. Bartley and Terence Troy appeal raising three assignments of error. The first and second assignments of error follow: THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT AGAINST DEFENDANT-APPELLANT BARTLEY J. TROY WHERE GENUINE ISSUES OF MATERIAL FACT EXISTED. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT AGAINST DEFENDANT-APPELLANT TERENCE F. TROY WHERE GENUINE ISSUES OF MATERIAL FACT EXISTED. The first and second assignments of error lack merit. Bartley and Terence Troy contend in these two assignments of error that the trial court improperly entered summary judgment for NCB because NCB failed to present evidence supporting its calculation of the $8,398.42 amount due and owing on the 1983 loan. Bartley also contends in the first assignment of error that he is not liable on his individual guarantee of the 1983 - 4 - loan because the Forbearance Agreement with Terence constituted a novation which superseded his guarantee. The record demonstrates NCB presented sufficient evidence concerning its calculation of the $8,398.42 amount due and owing on the 1983 loan. Paragraph 12 of the affidavit of NCB special credits administrator Patricia Lee in support of summary judgment states in pertinent part as follows: Based upon the business records of NCB, made and kept by NCB in the regular course of its banking business, I find that the Company and the Troys owe NCB on the Note the sum of $8,398.42 (consisting of $4,836.03 of principal, plus $3,562.39 of unpaid interest as of October 14, 1994) together with interest at the rate of 9.25% per annum from October 18, 1994; the same being the contract rate of 1 1/2 % per annum above NCB's effective based commercial lending rate which is presently 7.75% per annum. The motion was also supported by an account payment history, which reported a principal balance of $4,836.03 as of the last payment made on February 17, 1994. During his deposition Terence Troy admitted the balance on the account summary was "fairly accurate," and neither Bartley nor Terence Troy offered any evidence to dispute these calculations. Billing statements offered by defendants in opposition to NCB's motion for summary judgment are consistent with these principal and accrued interest balances. Concerning the balance due on the 1983 loan, Bartley and Terence Troy failed to satisfy their burden of producing evidence to show a genuine issue of material fact. Civ.R. 56(E); Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Bartley's contention that the Forbearance Agreement between NCB and Terence Troy constitutes a novation likewise lacks merit. - 5 - The Ohio Supreme Court summarized the requirements for establishing a novation in Federal Bank of Louisville v. Taggart (1987), 31 Ohio St.3d 8, as follows: *** there must be *** a mutual agreement between the creditor and his debtor which is intended to extinguish the old obligation by substituting a new one therefore. Thus *** for an obligation *** to have the effect of discharging the liability on the prior note, the new note must be given with that understanding on the part of both. Id. at p. 14. Bartley failed to establish that NCB and Terence Troy mutually intended the Forbearance Agreement to constitute a novation. The Forbearance Agreement was expressly made conditional upon performance of certain stated conditions. Paragraph 5 of the Agreement expressly provided that, upon default in any of these conditions, NCB had the right to enforce its remedies under the 1983 note and individual guarantees. Even if Terence Troy intended that Bartley be released from his guarantee as Bartley contends, there is no evidence that NCB shared this intent. Such an intent is contrary to the express terms of the Forbearance 2 Agreement. Accordingly, the first and second assignments of error are overruled. The third assignment of error follows: 2 The fact that NCB referred to the 1983 loan and 1990 Forbearance Agreement by separate numbers and did not send invoices to Bartley Troy does not establish a novation. Use of separate numbers indicates distinct obligations and invoices are customarily sent to the party primarily liable for the debt, rather than directly to guarantors of the indebtedness. - 6 - THE TRIAL COURT ABUSED ITS DISCRETION BY, SUA SPONTE, DISMISSING THE COUNTER CLAIMS OF APPELLANTS BARTLEY J. TROY AND TERENCE F. TROY. This assignment lacks merit. Bartley and Terence Troy argue the trial court improperly dismissed, sua sponte, their counterclaims, but they have failed to show reversible error. Civ.R. 12(F) authorizes striking counterclaims as follows: Motion to Strike. Upon motion made by a party before responding to a pleading *** or upon the court's own initiative at any time, the court may order stricken from any pleading an insufficient claim or defense or any redundant, immaterial, impertinent or scandalous matter. The record demonstrates that defendant's counterclaims merely reasserted, in a redundant fashion, the identical matters raised in their affirmative defenses. NCB addressed these matters in its motion for summary judgment. Because the trial court rejected the affirmative defenses and granted NCB's motion for summary judgment, defendant's duplicative counterclaims became moot. As a result, even if the trial court erred by dismissing their counterclaims as defendants contend, defendant's have failed to demonstrate any prejudice. Accordingly, the third assignment of error is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellants its 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. PORTER, P.J., and CORRIGAN*, J., CONCUR. DIANE KARPINSKI JUDGE *Judge John V. Corrigan, Retired, of the Eighth District Court of Appeals, sitting by assignment. 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 .