[Cite as IPlangroup v. Etayem, 2022-Ohio-822.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

IPLANGROUP AGENT FOR : 

CUSTODIAN FBO TARSEM GARG, 

IRA, : 

 

 Plaintiff-Appellee, : No. 110686 

 

 v. : 

 

YASER ETAYEM, ET AL., : 

 

 Defendants-Appellants. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 17, 2022 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-20-932265 

 

Appearances: 

The Lindner Law Firm, L.L.C., and Daniel F. Lindner, for 

appellee. 

Bower Stevenson, L.L.C., and Justin D. Stevenson, for 

appellant.

KATHLEEN ANN KEOUGH, P.J.: 

Defendant-appellant, Yaser Etayem (“Etayem”), appeals from the 

trial court’s judgment granting summary judgment to plaintiff-appellee, IPlangroup 
Agent for Custodian FBO Tarsem Garg, IRA (“IPlangroup”). Finding no merit to the 

appeal, we affirm. 

I. Facts and Procedural Background 

This case arises out of an uncompleted purchase of commercial real 

estate. IPlangroup filed suit against Etayem for breach of contract, alleging that 

Etayem had entered into an agreement to purchase commercial property from 

IPlangroup but breached the contract by failing to close on the property. IPlangroup 

also sued Fidelity National Title Insurance Company (“Fidelity”), seeking a 

declaratory judgment that the $10,000 in earnest money funds paid by Etayem 

upon signing the contract and held by Fidelity should be paid to IPlangroup. Fidelity 

subsequently deposited the earnest monies with the clerk of courts and was 

dismissed with prejudice from the case. 

IPlangroup then filed a motion for summary judgment. In its motion, 

IPlangroup asserted that there were no genuine issues of material fact that Etayem 

had breached the contract to purchase commercial property from IPlangroup, 

causing it $25,000 in damages. IPlangroup supported its motion with a copy of the 

purchase agreement between it and Etayem. The agreement demonstrated that 

IPlangroup was the owner of commercial property (the “property”) located at 3308 

Archwood Avenue in Cleveland, Ohio, and on September 18, 2019, Etayem offered 

to purchase the property for $600,000. IPlangroup accepted Etayem’s offer on 

September 21, 2019. Pursuant to an addendum to the contract executed on October 

29, 2019, the purchase price was later changed to $640,000, of which IPlangroup 
agreed to give back $60,000 towards Etayem’s closing costs and down payment, for 

a net purchase price of $580,000. The addendum also specified that the transaction 

was to close on or before November 1, 2019. 

With respect to financing, the contract provided that Fortis Capital 

Management Group was to be the lender, and that 

BUYER shall make a written application for the above mortgage loan, 

order the appraisal and provide verification to SELLER of said 

application and order of appraisal within 10 days and shall obtain a 

commitment for that loan no later than 4 days after acceptance of this 

offer. If first mortgage financing cannot be obtained despite BUYER 

good faith efforts, Russell Real Estate Services1 reserves the right to 

arrange acceptable financing. If first mortgage financing cannot be 

obtained then this Agreement shall be null and void. Upon signing of a 

mutual release by SELLER and BUYER, the earnest money deposit 

shall be returned to the BUYER without any further liability of either 

party to the other or to the Brokers and their agents. 

With regard to inspections of the property, the contract specified that 

Etayem agreed to a general property inspection by a professional inspector within 

nine days of the contract date, i.e., by September 30, 2019, and any other inspections 

deemed necessary by the general property inspection within ten days after the 

contract date. Etayem waived all other property inspections. 

The contract attached to IPlangroup’s motion for summary judgment 

reflected that on October 9, 2019, the parties executed an addendum to the contract 

that allowed Etayem an untimely inspection of the property but stated that the 

1 IPlangroup’s broker for the transaction. 
“[i]nspection is for buyer’s knowledge and reference only. We are out of the 

contingency period.” 

IPlangroup also supported its motion for summary judgment with the 

affidavit of Anup Garg, its agent for the sale of the property. Garg’s affidavit 

reiterated the terms of the contract and addendums as set forth above, and averred 

that in September 2019, Etayem deposited $10,000 in earnest monies to Fidelity as 

required by the contract. Garg further averred that although the contract was to 

close on or before November 1, 2019, “Etayem never notified me or any 

representative of [IPlangroup] or [Fidelity] that he did not desire to close the 

purchase of the property. He just never showed up for the closing, nor did he ever 

return to the transaction.” 

Garg further averred that he put the property back on the market after 

Etayem failed to complete the purchase and that the property eventually sold in 

April 2020 for $555,000, a reduction of $25,000 from the original sales price to 

Etayem. A copy of the contract with the new buyer was attached as an exhibit to 

Garg’s affidavit. 

Etayem filed a brief in opposition to IPlangroup’s motion for 

summary judgment. In his brief, Etayem asserted that the purchase agreement was 

conditioned upon him securing financing, which he was unable to obtain. He 

alleged that after executing the addendum allowing him an untimely inspection of 

the property, he had the property inspected by a professional inspector who opined 

that there were extensive electrical issues with the property and that it needed a new 
roof. Etayem asserted that in light of the roof and electrical issues, he was unable to 

obtain insurance on the property and without insurance, lenders would not commit 

to financing the deal. 

Etayem alleged that after he was denied coverage by multiple 

companies, he contacted IPangroup’s insurance representative, Ashley Marrie, an 

insurance agent at Glazier Insurance Agency, Inc. Etayem asserted that although 

Marrie offered a quote for full coverage of the property, her quote was based on 

incorrect information about the age of the roof. Etayem explained, quoting from his 

deposition testimony (pages of which were attached to his brief in opposition), that 

he did not accept the offer of insurance because Marrie thought the age of the roof 

was 15 years, when the roof was actually over 35 years old, and he would “not get 

[himself] in trouble making fraud with the insurance, or lying.” 

Etayem asserted that his real estate agent, Michael Pasadyn, then 

contacted IPlangroup’s real estate agent, Chris Zurawski, and told him that Etayem 

could not proceed with the transaction because he could not obtain insurance and 

was therefore unable to secure financing. Etayem alleged that Pasadyn sent 

Zurawski a mutual release, as provided for under the financing term of the contract, 

but that he never heard anything more from IPlangroup until this lawsuit was filed. 

Etayem argued that the trial court should deny summary judgment 

because the contract was not enforceable. He contended that under the financing 

term of the contract, obtaining financing was a condition precedent that had to be 

satisfied before the contract became enforceable. He argued that he attempted in 
good faith to secure financing but was unable to do so and, therefore, the contract 

was null and void. At a minimum, he asserted, there were genuine issues of material 

fact as to whether the contract was null and void under the financing term. 

He argued further that there were genuine issues of material fact as 

to the scope of the inspection addendum that precluded summary judgment, i.e., 

whether it waived all contingencies under the contract, including the financing 

contingency, or only the inspection contingency. 

Etayem supported his brief with Pasadyn’s affidavit. Pasadyn averred 

that he was Etayem’s real estate agent with respect to the purchase of the property 

and that he had “personal knowledge” of the matters discussed in his affidavit. He 

further averred: 

6. In September 2019, Mr. Etayem and IPlangroup (“IPlan”) executed 

a purchase contract (“Contract”) for the sale of the real property at issue 

in this matter. 

7. An accurate copy of the Contract is attached to Plaintiff’s Motion for 

Summary Judgment as Exhibit 1. (See Russell Real Estate Services 

Commercial purchase Agreement – Plaintiff’s MSJ Exhibit 1). 

8. The Contract contained a financing contingency which states that 

“If first mortgage financing cannot be obtained this Agreement shall be 

null and void” which, as a standard provision in such contracts, and in 

my experience as a real estate agent, means that if a buyer is unable to 

secure financing, for any reason, then the buyer is able to back out of 

such a contract. 

9. After executing the Contract, Mr. Etayem sought financing with 

Fortis Capital Management Group and Silverhill Funding. 

10. As with all first mortgage financing, both lenders required Mr. 

Etayem to secure insurance coverage on the property in order to 

providing [sic] the financing. 
11. Mr. Etayem sought to obtain insurance coverage from a number of 

agents and insurers, but had difficulty finding an insurer who would 

provide legitimate coverage on the property. 

12. During the process, I communicated this to Christopher Zurawski, 

the real estate agent for IPlan. (See Defendant’s Opposition Exhibit D 

– text message with Zurawski). 

13. Before issuing a quote describing the terms of coverage, the 

insurance companies asked Mr. Etayem for an inspection report of the 

property. 

14. In October 2019, the parties executed an Inspection Addendum to 

the Contact which gave Mr. Etayem the right to enter and have 

inspected the property, but that also specifically acknowledged the 

inspection contingency had ended. (See Defendant’s Opposition 

Exhibit C – Inspection Addendum). 

15. The intent of this Inspection Addendum was not to waive any and 

all contingencies in the Contract, but to obtain IPlan’s consent to 

inspect the property even though the traditional inspection period had 

passed, and to acknowledge that Mr. Etayem would not attempt to 

cancel the Contract based solely on the results of such inspection. 

16. Dan Gibson, a home inspector who was employed by Detailed 

Home Inspections at the time, inspected the property and determined 

the roof and fuse electrical system needed [to be] replaced and 

repaired. 

17. Mr. Etayem accepted the property as is because he was outside of 

the window to request repairs under the inspection contingency in the 

Contract. 

18. The insurance representative Mr. Etayem was working with when 

the inspection was conducted, Joe Race, denied coverage because of the 

roof and electrical issues unless Mr. Etayem paid to have the roof and 

electrical system repaired. 

19. Mr. Etaym then contacted contractors to find out how expensive 

the repairs would be and how long it would take to make them. The 

estimated costs of repair were around $100,000.00, which Mr. Etayem 

said he could not afford without financing and that was if any of the 

contractors could fit them in to make the repairs. 
20. The second insurance representative Mr. Etayem worked with was 

Nate Moog, an insurance broker, who used his network of providers to 

try and find a policy that Mr. Etayem could afford and which would 

satisfy his lender’s coverage requirements. 

21. Nate Moog eventually told Mr. Etayem the same thing: that Mr. 

Etayem must either fix the roof and electrical issues before closing or 

none of the insurance providers he brokers for will provide coverage for 

the property. 

22. In [an] attempt to facilitate and close the transaction, I reached out 

to Plaintiff’s agent to obtain information of Plaintiff’s insurance 

provider, with hope Mr. Etayem could transfer the policy Plaintiff had 

in place to himself post-closing. 

23. As Mr. Etayem explained it to me, the insurance advisor Mr. 

Etayem spoke with at Glazier Insurance Agency, Inc., Ashley Marrie, 

gave lender a quote for coverage but told Mr. Etayem that he had to fix 

the roof and electrical issues post-closing, and that Glazier will send an 

independent inspector to ensure compliance at some point after 

closing. 

24. Despite Mr. Etayem’s request for an exact time frame by which the 

repairs needed to be complete, Glazier would not guarantee when the 

independent inspector would be out to view the property and reassess 

coverage. 

25. It was my understanding that, during conversations with Mr. 

Etayem, Ashley repeatedly asserted the roof was only 15 years old, and 

maintained this assertion even after Mr. Etayem explained the 

inspection report indicated the roof was 35 years old. 

26. It was therefore also my understanding that Mr. Etayem was not 

able to procure legitimate insurance to cover the Property – the only 

insurer that was willing to provide a quote did so based on incorrect 

information. 

27. At the time I thought it seemed strange that Plaintiff’s provider was 

willing to insure the property post-closing when so many other 

companies denied coverage unless he repaired the roof and electrical 

before closing. 
28. Mr. Etayem therefore ultimately determined he must inform 

Plaintiff that Mr. Etayem could not proceed with the purchase and 

wanted his earnest money back. 

29. On November 5, 2019, I called Chris Zurawski, and informed Mr. 

Zurawski that Mr. Etayem cannot get insurance coverage for the 

property and will not proceed with the purchase, and that Mr. Etayem 

wants his earnest money back. Chris said he would take the 

information to Plaintiff. 

30. Also on November 5, I sent Chris a mutual release, which was 

required by the financing contingency in the Contract because Mr. 

Etayem was not going to purchase [the] property due to lack of 

financing, via the dot loop portal. Chris viewed the release on 

November 6, but did not reply. (See Defendant’s Opposition Exhibit D 

– Inspection Addendum). 

31. After I informed Chris that we could not proceed with the purchase, 

I did not hear back from Chris until January 2020, when I learned that 

IPlan planned to sue Mr. Etayem for breach of contract. 

IPlangroup filed a reply to Etayem’s brief in opposition. IPlangroup 

argued that Pasadyn’s affidavit was not based on his firsthand knowledge about the 

matters set forth in his affidavit and that the court could therefore not consider it 

(essentially asking the court to strike it). 

IPlangroup argued further that Etayem was “attempting to 

manufacture an issue of fact” by falsely asserting that he could not obtain financing 

due to his inability to obtain casualty insurance for the property. IPlangroup 

asserted that Etayem’s claim was “entirely untrue” and that insurance was available 

for the property from multiple sources. Attached to IPlangroup’s reply was the 

affidavit of Ashley Marrie, an insurance agent with Glazier Insurance Agency. In her 

affidavit, Marrie averred that she successfully found an insurer, State Auto, that was 

able to provide insurance for Etayem on the property despite its existing fuse and 
roof issues. A copy of Marrie’s October 28, 2019 email to Etayem that included a 

copy of State Auto’s quote and set forth the yearly cost and deductible for the State 

Auto insurance was attached to her affidavit. Marrie averred that she provided 

truthful information about the property to a number of carriers and that Etayem 

would have been able to obtain insurance from both the standard insurance market 

as well as excess and surplus lines if he was not comfortable with the proposed 

coverage. She further averred that no insurance inspection was required prior to 

binding insurance coverage for the property and that she had never spoken with 

Pasadyn regarding insurance coverage for the property. 

The trial court granted IPlangroup’s motion for summary judgment. 

In its judgment entry of its decision, the court first found that Pasadyn did not have 

firsthand knowledge of the matters to which he attested in his affidavit and, 

therefore, “the court cannot consider Mr. Pasadyn’s affidavit to establish 

Defendant’s argument that, because he was unable to obtain insurance coverage, he 

could not obtain financing.” The court further found Etayem’s arguments about his 

inability to obtain insurance and financing “unavailing.” It stated: 

If Defendant had performed an inspection within the contingency 

period, and this inspection revealed these defects, the Contract terms 

delineated the rights and obligations of each party under these 

circumstances. Defendant cannot use the findings of an untimely 

inspection report to justify his failure to purchase the Property. The 

court finds that Defendant breached the Commercial Purchase 

Agreement entered into by the parties. 

Finding that IPlangroup was entitled to judgment as a matter of law, 

the trial court entered judgment against Etayem in the amount of $25,000 in 
contract damages, plus statutory interest from November 1, 2019, and court costs. 

The court also ordered the clerk to release to IPlangroup the $10,000 in earnest 

monies Fidelity had deposited with the clerk. This appeal followed. 

II. Law and Analysis 

A. Standard of Review 

We review summary judgment rulings de novo, applying the same 

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 

N.E.2d 241 (1996). We accord no deference to the trial court’s decision and conduct 

an independent review of the record to determine whether summary judgment is 

appropriate. 

Under Civ.R. 56(C), summary judgment is appropriate when no 

genuine issue exists as to any material fact and, viewing the evidence most strongly 

in favor of the nonmoving party, reasonable minds can reach only a conclusion that 

is adverse to the nonmoving party. The party moving for summary judgment has 

the initial burden of identifying specific facts in the record that demonstrate an 

entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 

662 N.E.2d 26 (1996). If the moving party fails to meet this burden, summary 

judgment is not appropriate. If the moving party meets this burden, the nonmoving 

party has a reciprocal burden to point to evidence of specific facts in the record 

demonstrating the existence of a genuine issue of material fact for trial. Id. at 293. 

Summary judgment is appropriate if the nonmoving party fails to meet this burden. 

Id. 
B. Pasadyn’s Affidavit 

In his first assignment of error, Etayem contends that it was error for 

the trial court to conclude that Pasadyn did not have firsthand knowledge of the 

matters he attested to in his affidavit and to strike his affidavit when ruling on 

IPlangroup’s motion for summary judgment. 

Motions to strike are within the trial court’s broad discretion. Wells 

Fargo Bank v. Smith, 12th Dist. Brown No. CA2012-006, 2013-Ohio-855, ¶ 13. A 

court’s ruling on a motion to strike will not be reversed absent an abuse of that 

discretion. Rivera v. Challenge Fin. Investors Corp., 8th Dist. Cuyahoga No. 90904, 

2008-Ohio-5748, ¶ 11. A decision constitutes an abuse of discretion when it is 

unreasonable, arbitrary, or unconscionable. State ex rel. Striker v. Cline, 130 Ohio 

St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19, ¶ 11. 

Civ.R. 56(E), which sets forth the requirements for affidavits 

submitted to support or oppose motions for summary judgment, states that 

affidavits “shall be made on personal knowledge, shall set forth such facts as would 

be admissible in evidence, and shall show affirmatively that the affiant is competent 

to testify to the matters stated in the affidavit.” “‘Personal knowledge’ is ‘knowledge 

gained through firsthand observation or experience, as distinguished from a belief 

based on what someone else has said.’” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 

95 Ohio St.3d 314, 320, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 26, quoting Black’s Law 

Dictionary 875 (7th Ed.Rev.1999). Thus, “the subject of a witness’s testimony must 

have been perceived through one or more of the senses of the witness.” Id., quoting 
Weissenberger Ohio Evidence, Section 602.1 at 213 (2002). A witness is 

incompetent to testify to any fact unless he or she possesses firsthand knowledge of 

that fact. Id. This is the same standard applied to lay witness testimony in a court 

of law. Id. 

 Upon our review of Pasadyn’s affidavit, we find that he clearly lacked 

the personal knowledge required by Civ.R. 56(E) to support the statements in his 

affidavit. With the exception of a few paragraphs that attest to Pasadyn’s alleged 

communications with representatives of IPlangroup (paragraphs 12, 22, and 29-31), 

the entirety of Pasadyn’s affidavit attests to what Etayem did, what Etayem was told 

by others, or what conclusions or determinations Etayem made and communicated 

to others, including to Pasadyn. Indeed, Pasadyn concedes in paragraph 23 that 

Etayem “explained” to him that Marrie gave him an insurance quote but told him he 

had to fix the roof and electrical issues post-closing, and in paragraph 26 that it was 

his “understanding” based on conversations with Etayem that the only insurer 

willing to provide insurance had incorrect information about the age of the roof. In 

short, Pasadyn did not perceive with one of his senses the facts he attested to in his 

affidavit and, thus, he did not have the personal knowledge required by Civ.R. 56(E) 

to support the statements in his affidavit. 

Etayem asserts that Pasadyn’s mere assertion that his affidavit was 

based on firsthand knowledge was sufficient to allow the trial court to consider his 

affidavit. Admittedly, this court has held that “absent evidence to the contrary, an 

affiant’s statement this his affidavit is based on personal knowledge will suffice to 
meet the requirement of Civ.R. 56(E).” Deutsche Bank Natl. Trust Co. v. Najar, 8th 

Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 20. But Pasadyn’s affidavit itself 

contains the “evidence to the contrary” establishing that his affidavit was not based 

on personal knowledge. In his affidavit, Pasadyn does not attest to actions he took 

with regard to obtaining insurance for the property; he attests to what Etayem told 

him about Etayem’s alleged attempts to obtain insurance and his “understanding” 

based on those conversations about Etayem’s alleged inability to obtain insurance 

and, consequently, financing. Such testimony is obviously hearsay and not 

admissible. When ruling on a summary judgment motion, a court may consider only 

evidence that would be admissible at trial. Whitt v. Wolfinger, 4th Dist. Ross No. 

14CA3455, 2015-Ohio-2726, ¶ 12. 

Etayem’s assertion that the trial court improperly disregarded 

Pasadyn’s affidavit because his personal knowledge “can be reasonably inferred” 

based on his position as Etayem’s real estate agent during the transaction is likewise 

without merit. Ohio law recognizes that even where the affiant fails to state that the 

affidavit is based on personal knowledge, such personal knowledge may be inferred 

if the nature of the facts in the affidavit combined with the identity of the affiant 

creates a reasonable inference that the affiant has personal knowledge of the facts in 

the affidavit. Freedom Mtge. Corp. v. Vitale, 5th Dist. Tuscarawas No. 2019 AP 08 

0037, 2014-Ohio-1549, ¶ 26; Nationwide Mtge., L.L.C. v. Wagener, 8th Dist. 

Cuyahoga No. 101280, 2015-Ohio-1289, ¶ 26. 
But “‘personal knowledge’ for purposes of a summary judgment 

affidavit is defined as knowledge of the truth in regard to a particular fact or 

allegation that does not depend on information or hearsay, i.e., it is knowledge that 

is original to the affiant.” Whitt at ¶ 25, citing Parker Fin. v. Matthew, 4th Dist. 

Adams No. 97CA652, 1999 Ohio App. LEXIS 338 (Feb. 3, 1999) (affiant’s knowledge 

was based upon information he received during telephone conversations and 

therefore was not based on personal knowledge), citing Brannon v. Rinzler, 77 Ohio 

App.3d 749, 603 N.E.2d 1049 (2d Dist.1991) (personal knowledge must be original 

and not depend on information or hearsay). 

As discussed above, Pasadyn’s averments were based on information 

that Etayem told him, not on his own observations or involvement in events related 

to the contract. Thus, despite his position as Etayem’s real estate agent, his 

averments were hearsay and not admissible. 

We recognize that several paragraphs of Pasadyn’s affidavit contain 

averments relating to actions that he took in regard to the transaction. In paragraph 

12, Pasadyn averred that he told IPlangroup’s real estate agent that Etayem was 

having trouble finding an insurer for the property. In paragraph 22, he averred that 

he reached out to IPlangroup’s agent to obtain contact information for IPlangroup’s 

insurance provider. And in paragraphs 29-31, Pasadyn averred that he informed 

IPlangroup’s real estate agent that Etayem would not purchase the property due to 

his inability to obtain insurance and financing. Pasadyn obviously had personal 

knowledge of these actions. But it is apparent from his affidavit that Pasadyn’s 
actions were the result of hearsay information provided to him from Etayem; they 

were not based on his own personal knowledge that Etayem could not obtain 

insurance or financing for the property. Accordingly, we conclude that the trial court 

did not abuse its discretion in excluding Pasadyn’s entire affidavit. See, e.g., Whitt, 

4th Dist. Ross No. 14CA3455, 2015-Ohio-2726 at ¶ 33 (trial court did not err in 

excluding entire affidavit where the only reasonable inference was that affiant’s 

statements were based on hearsay statements of affiant’s father). The first 

assignment of error is therefore overruled. 

III. No Genuine Issues of Material Fact 

In his second assignment of error, Etayem contends that the trial 

court erred in granting IPlangroup’s motion for summary judgment because even 

without Pasadyn’s affidavit, he presented sufficient evidence demonstrating there 

were issues of fact regarding his alleged inability to obtain insurance and hence 

financing for the property. 

Etayem first points us to pages from his deposition testimony that 

were attached to his brief in opposition to IPlangroup’s summary judgment motion. 

He contends that his deposition testimony established that he faced difficulty 

obtaining insurance due to the age of the roof and electrical issues and that although 

IPlangroup obtained insurance from State Auto for the property, he believed the 

State Auto quote was based on false information about the age of the roof. He 

further contends that Marrie’s affidavit, which was submitted with IPlangroup’s 

reply brief, created issues of fact because it disputed his claim that the age of the roof 
was a primary concern in obtaining insurance for the property and did not refute his 

claim that State Auto had incorrect information about the age of the roof. Thus, he 

contends this case involves a “he said/she said” scenario that should not have been 

resolved on summary judgment. We disagree. 

Civ.R. 56(C) provides an exclusive list of the materials a trial court 

may consider when deciding a motion for summary judgment. Those materials are 

the pleadings, depositions, answers to interrogatories, written admissions, 

affidavits, transcripts of evidence, and written stipulations of fact. Nevertheless, 

before a deposition transcript can be considered as “legally acceptable evidence for 

summary judgment purposes,” (1) the transcript must be filed with the court or 

otherwise authenticated; (2) the deponent must sign the deposition transcript or 

waive signature; and (3) there must be a certification by the court reporter before 

whom the deposition was taken. Maddy v. Honeywell Intl. Inc., 8th Dist. Cuyahoga 

Nos. 108698 and 109066, 2020-Ohio-3969, ¶ 71, citing Zapata Real Estate L.L.C. 

v. Monty Realty Ltd., 8th Dist. Cuyahoga No. 101171, 2014-Ohio-5550, ¶ 25, citing 

Bank of N.Y. Mellon Trust Co., N.A. v. Unger, 8th Dist. Cuyahoga No. 97315, 2012-

Ohio-1950, ¶ 43. 

The pages from Etayem’s deposition attached to his brief in 

opposition did not include his signature, any certification by the court reporter 

before whom his deposition was taken, or any authentication. Because the 

deposition testimony was not properly introduced, the trial court had no obligation 

to consider it. Without Pasadyn’s affidavit and Etayem’s deposition testimony, there 
is simply no evidence that Etayem had any difficulty obtaining the necessary 

insurance and financing to complete the deal. It is apparent, therefore, that Etayem 

did not meet his burden of demonstrating there were any genuine issues of material 

fact regarding his breach of the contract. 

Moreover, even considering Etayem’s deposition testimony, we find 

no genuine material issues of fact that would require denial of IPlangroup’s motion 

for summary judgment. It is evident from his testimony that Etayem attempted to 

use the results of an untimely inspection of the property ─ an inspection he 

stipulated was to be for informational purposes only ─ as the basis to back out of the 

deal. As the trial court properly found, however, the contract delineated the rights 

and obligations of the parties had he conducted a timely inspection that had revealed 

defects with the property (see lines 182 through 201 of the contract, which include 

the buyer’s right to rescind the contract should a timely inspection reveal material 

defects not previously disclosed by the seller). Etayem did not conduct a timely 

inspection, however, and cannot use the results of an untimely inspection to justify 

his failure to purchase the property in contravention of the contract terms. 

Additionally, it is apparent that Etayem failed to meet the contract’s financing term, 

which required him to apply for a loan with Fortis Capital Management Group, order 

an appraisal, and provide IPlangroup with verification of his application for the loan 

and order of appraisal within ten days of his offer to purchase the property, and to 

obtain a commitment for the loan no later than four days after IPlangroup’s 

acceptance of his offer to purchase. 
To recover on a claim for breach of contract, a plaintiff must 

demonstrate (1) the existence of a binding contract; (2) performance by the plaintiff; 

(3) breach by the defendant; and (4) damages resulting from the breach. Duncan v. 

Cuyahoga Community College, 8th Dist. Cuyahoga No. 101644, 2015-Ohio-687, 

¶ 16, citing Corsaro v. ARC Westlake Village, Inc., 8th Dist. Cuyahoga No. 84858, 

2005-Ohio-1982, ¶ 20. 

There are no genuine issues of material fact in this case regarding the 

existence of a binding contract, IPlangroup’s performance of the contract, Etayem’s 

breach, and IPlangroup’s resulting damages of $25,000 (the difference between the 

original sales price to Etayem and the new contract price to a different buyer). 

Accordingly, the trial court did not err in granting summary judgment in favor of 

IPlangroup and against Etayem. The second assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said 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. 

 

KATHLEEN ANN KEOUGH, PRESIDING JUDGE 

MICHELLE J. SHEEHAN, J., and 

JAMES A. BROGAN, J.,* CONCUR 

*(Sitting by assignment: James A. Brogan, J., retired, of the Second District Court 

of Appeals.)