Yellow Book Sales & Distrib. Co., Inc. v. TK Plumbing Servs., Inc. ( 2011 )

[Cite as Yellow Book Sales & Distrib. Co., Inc. v. TK Plumbing Servs., Inc., 2011-Ohio-2518.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95211
YELLOW BOOK SALES & DISTRIBUTING
COMPANY, INC.
PLAINTIFF-APPELLEE
vs.
TK PLUMBING SERVICES, INC., ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
REVERSED AND REMANDED
2
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-677274
BEFORE: E. Gallagher, J., Blackmon, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEYS FOR APPELLANTS
Sonja M. Siebert
Kirk Stewart
Stewart & Siebert, LLP
Ohio Savings Building
20133 Farnsleigh Road
Shaker Heights, Ohio 44122
ATTORNEYS FOR APPELLEE
Mark J. Sheriff
Dale D. Cook
Wiles, Boyle, Burkholder, Bringardner Co.
300 Spruce Street
Floor One
Columbus, Ohio 43215-1173
3
EILEEN A. GALLAGHER, J.:
{¶ 1} Appellants, TK Plumbing Services, Inc. and Terry Kordiac,
appeal the judgment entered against them in the Cuyahoga County Common
Pleas Court on May 24, 2010 granting summary judgment in favor of
plaintiff-appellee, Yellow Book Sales & Distribution Company, Inc. (“Yellow
Book”) and against appellants. Appellants argue that the trial court erred
when it failed to find the subject contract between the parties to be
ambiguous for the purpose of admitting parol evidence, that the court erred
by failing to find the personal guaranty in the contract to be unconscionable,
and that the trial court improperly relied on an illegible contract.
{¶ 2} This case arises from an advertising contract entered into
between A-AA Minuteman, an Ohio corporation, and Yellow Book on
November 10, 2006. Terry Kordiac was the president of A-AA Minuteman
and signed the contract personally. The contract called for monthly
payments of $3,810 for twelve (12) months.
{¶ 3} A-AA Minuteman changed its corporate name to TK Plumbing,
Inc. and sold the name A-AA Minuteman, along with its related phone
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number, on April 26, 2007. A review of the asset purchase agreement for
this sale reveals that the liability for the Yellow Book contract was not
transferred as part of the sale. That contract remained with TK Plumbing
Services, Inc.
{¶ 4} Yellow Book received an initial deposit of $3,810 under the
contract and brought the present action against TK Plumbing Services, Inc.
and Terry Kordiac for the outstanding balance. The only issue on appeal is
whether appellant Terry Kordiac was properly held to be personally liable for
payments under the contract. Appellants offer no arguments that summary
judgment was inappropriate as to TK Plumbing Services, Inc.
{¶ 5} We find appellant’s third assignment of error to be dispositive of
the present appeal and thus address it out of order. In his third assignment
of error, appellant argues that the trial court improperly relied on an
illegible contract in granting summary judgment.
{¶ 6} Our review of a trial court’s grant of summary judgment is de
novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d
241. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1)
there is no genuine issue of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party, said party
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being entitled to have the evidence construed most strongly in his favor.
Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196,
paragraph three of the syllabus; Zivich v. Mentor Soccer Club (1998), 82
Ohio St.3d 367, 696 N.E.2d 201. The party moving for summary judgment
bears the burden of showing that there is no genuine issue of material fact
and that it is entitled to judgment as a matter of law. Dresher v. Burt
(1996), 75 Ohio St.3d 280, 662 N.E.2d 264.
{¶ 7} The copy of the contract between the parties presented to the
trial court contains fine print language underneath the individual signature
line bearing appellant’s signature. Due to the poor condition of the copy of
the contract presented to the trial court, it is impossible to decipher the
language beneath the individual signature line. As the entire dispute
between the parties concerns in what capacity appellant signed the contract,
the illegible language beneath this line is crucial to resolving this conflict.
Based on the unique facts of this case, we conclude that the highly relevant
and completely illegible language beneath the individual signature line
presented a genuine issue of material fact such that summary judgment was
inappropriate in this instance.
{¶ 8} Appellant’s third assignment of error is well taken. Appellant’s
remaining assignments of error are moot. The judgment of the trial court is
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reversed as to appellant Terry Kordiac only, and the case is remanded to the
trial court for further proceedings consistent with this opinion.
It is ordered that Terry Kordiac recover of appellee costs herein taxed.
This 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.
EILEEN A. GALLAGHER, JUDGE
PATRICIA A. BLACKMON, P.J., and
MARY J. BOYLE, J., CONCUR