Guaranteed Constr. Servs., L.L.C. v. Grand Communities, Ltd. , 2017 Ohio 9288 ( 2017 )

[Cite as Guaranteed Constr. Servs., L.L.C. v. Grand Communities, Ltd., 2017-Ohio-9288.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Guaranteed Construction Services, LLC :
et al.,
:
Plaintiffs-Appellants,
: No. 17AP-213
v. (C.P.C. No. 16CV-1087)
:
Grand Communities, Ltd. et al., (REGULAR CALENDAR)
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on December 28, 2017
On brief: Cooper & Elliott, LLC, and Barton R. Keyes, for
appellants.
On brief: Kegler, Brown, Hill + Ritter, and Catherine A.
Cunningham, for appellees. Argued: Catherine A.
Cunningham.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiffs-appellants, Guaranteed Construction Services, LLC, d.b.a. Real
Estate Ltd. ("Real Estate Ltd.") and Northgate Centre Development, LLC ("Northgate")
(collectively "appellants"), appeal from the judgment entry of the Franklin County Court
of Common Pleas granting summary judgment in favor of defendants-appellees, Grand
Communities, Ltd. ("Grand") and Fischer Development Company (collectively
"appellees"). For the following reasons, we affirm the decision of the trial court.
No. 17AP-213 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellants Real Estate Ltd. and Northgate are affiliated entities with the
same principal, Pat Shivley. In 2014, Real Estate Ltd. held real estate purchase option
contracts for multiple parcels of land in southern Delaware County, Ohio. For purposes of
reference in this decision, we will refer to the land covered by the relevant purchase
option contracts as the "Price property" and the "Forman property." Real Estate Ltd. paid
$106,000 in earnest money for the option to buy the Price property, which collectively
consisted of approximately 183 acres, and paid $10,000 in earnest money for the option
to buy the Forman property, which consisted of approximately 28 acres.
{¶ 3} Shivley sought a partner to develop the Price and Forman properties and
ultimately agreed to work with Grand and its general partner, Fischer Development
Company, on the project. Several written agreements, summarized in pertinent part
below, memorialize the parties' agreement.
March 20, 2015 Development Agreement
{¶ 4} Shivley, on behalf of Northgate, and Todd Huss, on behalf of Grand, agreed
to work together to develop the properties for the benefit of both parties. Regarding the
Forman property, Northgate agreed to cause Real Estate Ltd. to assign the purchase
option on the Forman property to appellees, and Grand agreed to reimburse appellants
for the $10,000 earnest money deposit paid to the owners of the Forman property.
Regarding the Price property, appellants agreed to terminate the purchase option with the
owners so that Grand could purchase that property. The agreement further provides:
2. Earnest Money. Upon execution of an agreement between
Grand and the [Price property] Owners for the Real Estate,
Grand shall pay the [Price property] Owners [$35,000] as
earnest money deposit. NorthGate shall reimburse Grand said
earnest money at the time of execution of said agreement.
3. Closing. In the event Grand elects to exercise its option and
close on the [Price property], which shall occur on or before
December 1, 2015, Grand shall reimburse NorthGate for the
earnest money previously paid by them to the Owners in the
amount of [$106,000] as well as the [$35,000] as described in
Paragraph 2. Total reimbursement by Grand to NorthGate
shall be [$141,000].
No. 17AP-213 3
(Mar. 20, 2015 Agreement at 1-2.)
{¶ 5} The agreement provides that it "constitutes the entire Agreement of the
parties and no oral or implied agreement or representation shall be binding on the
parties" and that "[n]o agreement shall be effective to add to change, modify, waive or
discharge this Agreement in whole or in part unless such Agreement is in writing and
executed by all parties." (Mar. 20, 2015 Agreement at 5.) Furthermore, "Grand's
performance of its obligations under this Agreement is specifically conditioned upon
Grand closing on the Real Estate. In the event Grand elects not to close on the Real
Estate, this Agreement shall terminate and neither party shall thereinafter be obligated to
the other." (Mar. 20, 2015 Agreement at 6.)
April 1, 2015 Purchase Option Agreement Between Grand and the
Prices
{¶ 6} Grand entered into a purchase option contract with the Prices for $35,000.
The agreement sets the period for exercising the option and purchasing the property at
nine months past the effective date of the agreement and specifies that "but in no event
shall Closing be extended past December 1, 2015, except by the mutual agreement of the
parties." (Apr. 1, 2015 Purchase Option at 2.) Under the purchase option agreement
between Grand and the Prices, the $35,000 paid by Grand and the $106,000 previously
paid by appellants would be credited to Grand at closing. In the event Grand failed to
exercise the option, the Prices would keep all option money paid, including the "already
earned consideration" of $106,000 paid by appellants "for Seller keeping the Real Estate
off the market and cooperating in its annexation." (Apr. 1, 2015 Purchase Option at 2.)
April 1, 20151 Assignment Agreement Regarding Forman Property
Option (First Assignment Agreement)
{¶ 7} Real Estate Ltd. assigned to Grand the Forman property purchase option
contract. The agreement additionally provides that:
4. In the event that [Grand] elects not to close on the Price
Property as required in the Price Property Agreement dated
1 This agreement is referenced by several dates and names in the record. The trial court and the parties
occasionally reference this agreement by using the March 26, 2015 date provided in the body of the
agreement. However, the later agreements of the parties refer to this document by the date corresponding
to the last signature on this document: April 1, 2015. We will use April 1, 2015 in referencing this agreement
for purposes of appeal.
No. 17AP-213 4
April 1st, 2015, by and between [the Prices and Grand, Grand]
shall assign this Agreement back to [Real Estate Ltd.].
(Apr. 1, 2015 Assignment Agreement at 1.)
{¶ 8} The document designates "this assignment of agreement" as the
"Agreement" and designates the purchase option contract between Real Estate Ltd. and
the owners of the Forman property as the "Original Agreement." (Apr. 1, 2015
Assignment Agreement at 1.) The April 1, 2015 assignment agreement further provides
that it "constitutes the entire Agreement * * * of the parties and no oral or implied
agreement or representation shall be binding" on the parties. (Apr. 1, 2015 Assignment
Agreement at 2.)
December 9, 2015 Assignment Agreement Regarding Forman Property
(Second Assignment Agreement)
{¶ 9} The December 9, 2015 assignment of agreement provides that:
[P]ursuant to Paragraph 4 of the First Assignment Agreement,
attached hereto as Exhibit "B", [Grand] is contractually
required to assign all of its right, title and interest in and to
the [Forman option] pertaining to the sale of the Real Estate
* * * to [appellants] since [Grand] has not closed on the Price
Property, and [appellants are] contractually obligated to
accept the assignment.
(Dec. 9, 2015 Assignment Agreement at 1.)
{¶ 10} As terms for the December 9, 2015 document, the "First Assignment
Agreement" refers to the April 1, 2015 assignment agreement whereby Real Estate Ltd.
assigned the Forman property to Grand, and the "Original Agreement" refers to the 2014
purchase option contract between Real Estate Ltd. and the owners of the Forman
property. The April 1, 2015 assignment agreement is attached as Exhibit B. The
December 9, 2015 agreement further specifies that Grand assigns back to appellants its
entire interest in the Forman property, including the benefit of the original $10,000
earnest money deposit with the Formans and that Real Estate Ltd. accepts the
assignment. The agreement "constitutes the entire Agreement * * * of the parties and no
oral or implied agreement or representation shall be binding" on the parties. (Dec. 9,
2015 Assignment Agreement at 2.)
No. 17AP-213 5
{¶ 11} On February 2, 2016, appellants filed suit in the Franklin County Court of
Common Pleas against appellees. Appellants contended appellees were in breach of
contract by not assigning the purchase option on the Price property to appellees and
letting that purchase option lapse. Appellants additionally alleged claims of promissory
estoppel and unjust enrichment.
{¶ 12} On March 4, 2016, appellees filed an answer asserting in part that it had no
agreement with appellants to assign the Price property back to appellants and that it
already assigned the Forman property back to appellants. Appellees also counterclaimed
contending that appellants were in breach of contract by failing to reimburse appellees
$35,000 in earnest money under the terms of the March 20, 2015 agreement and by
failing to satisfy its obligations to make certain improvements and failing to maintain a
certain book value.2
{¶ 13} On November 8, 2016, appellees moved for summary judgment on all
claims. Appellees argued in part that appellants owe Grand $35,000 under the plain
language of the March 20, 2015 agreement and that Grand had an obligation to assign
back the Forman option, rather than the Price option, to appellants. Appellees supported
its motion for summary judgment with the affidavit of Huss with associated attachments
including the March 20, 2015 agreement, April 1, 2015 assignment, December 9, 2015
assignment, March 26, 2015 letters from appellants to the Prices, April 1, 2015 purchase
option agreement between Grand and the Prices along with its three written extensions,
and copies of cancelled checks of Grand made payable to the Prices in the amount of
$15,000 and to Brenda Price in the amount of $20,000.
{¶ 14} Appellants filed a memorandum in opposition to summary judgment on
December 6, 2016 contending that paragraph four of the April 1, 2015 assignment
agreement required Grand to assign the Price purchase option to appellant if Grand did
not close. Regarding the counterclaim, appellants contended that appellees consented to
non-reimbursement of the $35,000 earnest money defendants paid to the owners of the
Price property. Appellants supported the motion for summary judgment with the
2 Appellees later voluntarily dismissed its counterclaim count pertaining to improvements and book value.
No. 17AP-213 6
affidavit of Shivley along with attachments including the original Price property purchase
option contracts and extensions and original Forman property purchase option contract.
{¶ 15} On January 11, 2017, the trial court granted appellees' motion for summary
judgment. In doing so, the trial court found the terms of the March 20, 2015 agreement
and the April 1, 2015 assignment agreement clear and unambiguous. As such, it
determined the parol evidence rule precludes the trial court from varying, contradicting,
or adding to the terms of the written contracts. Specifically, the trial court found that
under paragraph three of the March 20, 2015 agreement, Grand was only obligated to
reimburse appellants the $106,000 paid for the initial option on Grand's closing on the
Price option, which never occurred. Furthermore, the trial court found, contrary to
Shivley's understanding as expressed in his affidavit, nothing in the March 20, 2015
agreement or the April 1, 2015 assignment agreement required Grand to reassign its
option to purchase the Price property to appellants if Grand did not close on that
property. Rather, under paragraph four of the April 1, 2015 assignment agreement, Grand
was obligated to assign the Forman property back to Real Estate Ltd. in the event that
Grand elected not to close on the Price property. Therefore, the trial court held that
appellees were entitled to summary judgment on all claims raised in the complaint.
{¶ 16} Regarding appellees' counterclaim, the trial court found by the plain terms
of paragraph two of the March 20, 2015 agreement, Northgate was obligated to reimburse
Grand for the $35,000 paid to the Prices at the time when the option agreement was
executed. The trial court also states that it did "not find credible [appellants'] assertion
that Grand relinquished its right to collect those funds via an alleged conversation with
Greg Fischer that occurred at some unknown date and time." (Trial Ct. Jgmt. at 11.) As a
result, the trial court held appellees additionally demonstrated entitlement to summary
judgment under Count 1 of its counterclaim in the amount of $35,000 plus interest. The
trial court found "no just cause for delay." (Trial Ct. Jgmt. at 11.)
{¶ 17} Appellants filed a timely appeal to this court.
II. ASSIGNMENTS OF ERROR
{¶ 18} Appellants present two assignments of error:
1. The Trial Court erred when it granted Appellees summary
judgment on Appellants' claims.
No. 17AP-213 7
2. The Trial Court erred when it granted Appellees summary
judgment on Appellees' first counterclaim.
III. STANDARD OF REVIEW
{¶ 19} Pursuant to Civ.R. 56(C), summary judgment is appropriate only under the
following circumstances: (1) no genuine issue of material fact remains to be litigated,
(2) the moving party is entitled to judgment as a matter of law, and (3) viewing the
evidence most strongly in favor of the nonmoving party, reasonable minds can come to
but one conclusion, that conclusion being adverse to the nonmoving party. Harless v.
Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). "When seeking summary
judgment on grounds that the non-moving party cannot prove its case, the moving party
bears the initial burden of informing the trial court of the basis for the motion and
identifying those portions of the record that demonstrate the absence of a genuine issue of
material fact on an essential element of the non-moving party's claims." Lundeen v.
Graff, 10th Dist. No. 15AP-32, 2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d
280, 293 (1996). Once the moving party meets its initial burden, the nonmovant must set
forth specific facts demonstrating a genuine issue for trial. Dresher at 293. The
nonmoving party may not rest on the mere allegations and denials in the pleadings but,
instead, must point to or submit some evidentiary material that shows a genuine dispute
over the material facts exists. Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th Dist.1991).
{¶ 20} Appellate review of summary judgment is de novo. Gabriel v. Ohio State
Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E.
Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "When an
appellate court reviews a trial court's disposition of a summary judgment motion, it
applies the same standard as the trial court and conducts an independent review, without
deference to the trial court's determination." Gabriel at ¶ 12, citing Byrd at ¶ 5, citing
Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992).
IV. DISCUSSION
A. First Assignment of Error
{¶ 21} Under the first assignment of error, appellants contend the trial court erred
when it granted appellees' motion for summary judgment on appellants' claims.
Specifically, appellants argue the trial court erred in finding the agreements to be clear
No. 17AP-213 8
and unambiguous and, instead, contend record evidence concerning the parties' intent
raised a genuine issue of material fact as to whether appellees breached the April 1, 2015
assignment agreement. Appellants also contend that the record supports their equitable
claims. For the following reasons, we disagree.
{¶ 22} The interpretation of a written contract is a matter of law and an issue
appropriately resolved on summary judgment. John R. Jurgensen Co. v. Fairborn, 1st
Dist. No. C-140556, 2015-Ohio-5478, ¶ 11; Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio
St.3d 352, 2008-Ohio-938, ¶ 37. The primary purpose of contract interpretation is to
effectuate the intent of the parties. Triangle Properties v. Homewood Corp., 10th Dist.
No. 12AP-933, 2013-Ohio-3926, ¶ 21.
{¶ 23} "When parties to a contract dispute the meaning of the contract language,
courts must first look to the four corners of the document to determine whether or not an
ambiguity exists." Drs. Kristal & Forche, D.D.S., Inc. v. Erkis, 10th Dist. No. 09AP-06,
2009-Ohio-5671, ¶ 21. Where the terms of the contract are clear and unambiguous, a
court should not look beyond the plain language of the instrument to determine the rights
and obligations of the parties. Id.; Triangle Properties at ¶ 21. However, where the
language of the contract is unclear or ambiguous, or where the circumstances
surrounding the agreement invest the language of the contract with a special meaning, a
court may use extrinsic evidence to ascertain the parties' intentions. Kelly v. Med. Life
Ins. Co., 31 Ohio St.3d 130, 132 (1987), citing Blosser v. Enderlin, 113 Ohio St. 121 (1925),
paragraph one of the syllabus; 4 Williston, Contracts, Section 610B, at 532-33 (3d
Ed.1961). Extrinsic evidence may include " '(1) the circumstances surrounding the parties
at the time the contract was made, (2) the objectives the parties intended to accomplish by
entering into the contract, and (3) any acts by the parties that demonstrate the
construction they gave to their agreement.' " Lutz v. Chesapeake Appalachia, L.L.C., 148
Ohio St.3d 524, 2016-Ohio-7549, ¶ 9, quoting United States Fid. & Guar. Co. v. Saint
Elizabeth Med. Ctr., 129 Ohio App.3d 45, 56 (2d Dist.1998).
{¶ 24} When reviewing a contract, a court must give common words their plain
and ordinary meaning "unless another meaning is clearly evident from the face or overall
content of the contract, or unless the result is manifestly absurd." Hope Academy
Broadway Campus v. White Hat Mgt., L.L.C., 145 Ohio St.3d 29, 2015-Ohio-3716, ¶ 36.
No. 17AP-213 9
" 'The meaning of a contract is to be gathered from a consideration of all its parts, and no
provision is to be wholly disregarded as inconsistent with other provisions unless no other
reasonable construction is possible.' " Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-
Ohio-1957, ¶ 8, quoting German Fire Ins. Co. v. Roost, 55 Ohio St. 581 (1897), paragraph
one of the syllabus. Where possible, a court must construe the agreement to give effect to
every provision in the agreement. Triangle Properties at ¶ 21.
{¶ 25} " 'As a matter of law, a contract is unambiguous if it can be given a definite
legal meaning.' " Sunoco, Inc. (R&M) v. Toledo Edison Co., 129 Ohio St.3d 397, 2011-
Ohio-2720, ¶ 37, quoting Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-
5849, ¶ 11. Conversely, "[c]ontract language is ambiguous if its meaning cannot be
determined from the four corners of the contract or if the contract language is susceptible
to two or more conflicting, yet reasonable, interpretations." Erkis at ¶ 22. But see State v.
Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, ¶ 11 (disagreeing with the reasoning that a
provision is ambiguous when multiple readings are possible and warning against
resultant "self-fulfilling" allegations of ambiguity). A contract provision does not become
ambiguous because it may operate to impose a hardship or advantage on a party. Dugan
& Meyers Constr. Co. v. Ohio Dept. of Adm. Servs., 113 Ohio St.3d 226, 2007-Ohio-1687,
¶ 29. Cent. Allied Ents. v. Adjutant Gen. Dept., 10th Dist. No. 10AP-701, 2011-Ohio-4920,
¶ 19 (discussing that "[c]ourts may not rewrite clear and unambiguous contract provisions
to achieve a more equitable result" and are "powerless to save a competent person from
the effects of his own voluntary agreement").
{¶ 26} Here, appellants contend paragraph four of the April 1, 2015 assignment
agreement is ambiguous. Paragraph four states:
In the event that [Grand] elects not to close on the Price
Property as required in the Price Property Agreement dated
April 1st, 2015, by and between [the Prices and Grand, Grand]
shall assign this Agreement back to [Real Estate Ltd.].
(Apr. 1, 2015 Assignment Agreement at 1.) According to appellants, this paragraph means
that if Grand chose not to close on the Price property, Grand was obligated to assign the
Price option back to Real Estate Ltd.
No. 17AP-213 10
{¶ 27} We disagree. Paragraph four is set within the April 1, 2015 assignment
agreement, which is designated by the parties as "the 'Agreement.' " (Apr. 1, 2015
Assignment Agreement at 1.) The purpose of the April 1, 2015 assignment agreement is to
effectuate the assignment of the Forman property from Real Estate Ltd. to Grand. Viewed
in context, we find the plain language of paragraph four requires Grand to assign the
Forman property back to Real Estate Ltd. in the event that Grand elected not to close on
the Price property.
{¶ 28} Even if we were to agree that paragraph four is ambiguous, thereby allowing
us to look outside the four corners of the April 1, 2015 assignment agreement document,
the result is the same. As record evidence creating a genuine issue of material fact for
trial, appellants point to alleged discussions between the parties, the lack of
reimbursement of the $106,000 earnest money deposit on the Price property, and the
undesirable business result for appellants under the interpretation taken by the trial
court. However, the parties expressly state their intent in drafting paragraph four in a
later contract. Specifically, in the December 9, 2015 assignment agreement, both parties
agreed that paragraph four of the April 1, 2015 assignment agreement means that
"[Grand] is contractually required to assign all of its right, title and interest in and to the
[Forman option] to [appellants] since [Grand] has not closed on the Price Property, and
[appellants are] contractually obligated to accept the assignment." (Dec. 9, 2015
Assignment Agreement at 1.) It is undisputed that, consistent with this meaning, Grand
did assign the Forman option back to Real Estate Ltd.
{¶ 29} Lastly, appellants assert the record supports their equitable claims for
unjust enrichment and promissory estoppel. As a preliminary note, on appeal, appellants
have not argued in support of promissory estoppel beyond stating that genuine issues of
material fact exist on that claim. As such, appellants have not met their burden of
demonstrating error on appeal on that issue. "The burden of affirmatively demonstrating
error on appeal rests with the [appellant]." Miller v. Johnson & Angelo, 10th Dist. No.
01AP-1210, 2002-Ohio-3681, ¶ 2; App.R. 9 and 16(A)(7) ("[t]he appellant shall include in
its brief, under the headings and in the order indicated, all the following: * * * [a]n
argument containing the contentions of the appellant with respect to each assignment of
No. 17AP-213 11
error presented for review and the reasons in support of the contentions, with citations to
the authorities, statutes, and parts of the record on which appellant relies.").
{¶ 30} Regarding unjust enrichment, appellants claim Grand was unjustly
enriched because appellants conferred a benefit (a purchase option on the Price property
with the $106,000 earnest money deposit) with the understanding that if Grand did not
close on the Price property it would assign the purchase option back to Real Estate Ltd. so
Real Estate Ltd. could protect its $106,000 investment.
{¶ 31} "In order to recover under a theory of unjust enrichment or quasi-contract,
a plaintiff must prove by a preponderance of the evidence that (1) the plaintiff conferred a
benefit upon the defendant, (2) the defendant had knowledge of such benefit, and (3) the
defendant retained the benefit under circumstances where it would be unjust for him to
retain that benefit without payment." (Internal citation omitted.) Anchor Realty Constr.,
Inc. v. New Albany Links Golf Course Co., 10th Dist. No. 09AP-840, 2010-Ohio-6347,
¶ 15. As a general rule, a claim for unjust enrichment is barred where an agreement exists
between the plaintiff and the party against whom unjust enrichment is asserted covering
the same subject matter. Id. at ¶ 20-21.
{¶ 32} Here, as a preliminary matter, appellants do not cite legal authority in
support of their unjust enrichment claim. Miller at ¶ 2; App.R. 9 and 16(A)(7).
Furthermore, appellants' argument is premised on their own expectation and
understanding of the agreements evidenced by Grand's alleged oral promises. However,
we have already found the agreements between the parties, which cover this subject
matter, to be clear and unambiguous, and, as a result, appellants' claim of unjust
enrichment is barred. Therefore, we find appellants' contentions regarding both equitable
claims lack merit.
{¶ 33} Considering all the above, we find no genuine issue of material fact remains
to be litigated, appellees are entitled to judgment as a matter of law, and viewing the
evidence most strongly in favor of appellants, reasonable minds can come to but one
conclusion, that conclusion being adverse to appellants. Civ.R. 56; Harless. Therefore,
appellees are entitled to summary judgment on appellants' claims.
{¶ 34} Accordingly, appellants' first assignment of error is overruled.
No. 17AP-213 12
B. Second Assignment of Error
{¶ 35} Under the second assignment of error, appellants contend the trial court
erred when it granted summary judgment to appellees on their counterclaim. For the
following reasons, we disagree.
{¶ 36} First, appellants contend that, as its "sole reason" for this portion of its
decision, the trial court stated that it did not find affidavit evidence from appellees
credible. (Appellants' Brief at 21.) As such, appellants contend that the trial court
improperly used a credibility determination on summary judgment to find there was no
genuine issue of material fact.
{¶ 37} Appellants' argument references a portion of the trial court opinion in which
it states it did "not find credible [appellants'] assertion that Grand relinquished its right to
collect those funds via an alleged conversation with Greg Fischer that occurred at some
unknown date and time." (Trial Ct. Jgmt. at 11.) We agree with appellants that credibility
determinations should not serve as the basis from which to grant summary judgment.
Turner v. Turner, 67 Ohio St.3d 337, 341 (1993). However, it is unclear whether the trial
court's statement references the credibility of a fact witness or the general credibility of a
legal argument asserted by appellants. Regardless, the trial court's decision was not
"solely" based on a credibility determination. Rather, the crux of the trial court's decision
on the counterclaim is that appellants are entitled to $35,000 reimbursement from
appellees based on the clear and unambiguous language of the March 20, 2015 agreement
and paragraphs two and three of that agreement in particular. Those paragraphs read:
2. Earnest Money. Upon execution of an agreement between
Grand and the [Price property] Owners for the Real Estate,
Grand shall pay the [Price property] Owners [$35,000] as an
earnest money deposit. NorthGate shall reimburse Grand said
earnest money at the time of execution of said agreement.
3. Closing. In the event Grand elects to exercise its option
and close on the [Price property], which shall occur on or
before December 1, 2015, Grand shall reimburse NorthGate
for the earnest money previously paid by them to the Owners
in the amount of [$106,000] as well as the [$35,000] as
described in Paragraph 2. Total reimbursement by Grand to
NorthGate shall be [$141,000].
No. 17AP-213 13
(Emphasis added.) (Mar. 20, 2015 Agreement at 1-2.)
{¶ 38} Paragraph eight, section H of the March 20, 2015 agreement further adds
that only Grand's performance of its obligation is specifically conditioned on Grand
closing on the Price property, and the parties' obligations to each other under the contract
would only cease after Grand elected not to close on the Price property and the agreement
thereby terminated. On independent review of the March 20, 2015 agreement, we agree
paragraphs two and three of the March 20, 2015 agreement clearly obligate Northgate to
reimburse Grand the $35,000 earnest money paid to the Prices in executing an
agreement for the purchase option contract on the Price property.
{¶ 39} Appellants next contend that appellees waived or modified that contract
term. Appellants argue that Greg Fischer, a principal of both Grand and Fischer
Development Company, stated Grand would remain responsible for the $35,000 deposit
"as they were completing negotiations with the owners," and appellees never demanded
reimbursement of that money until filing the counterclaim. (Appellants' Brief at 21.)
{¶ 40} We disagree with appellants' argument for several reasons. Appellants
agreed in the March 20, 2015 contract that "no oral or implied agreement or
representation shall be binding on the parties" and that "[n]o agreement shall be effective
to add to change, modify, waive or discharge this Agreement in whole or in part unless
such Agreement is in writing and executed by all parties." (Mar. 20, 2015 Agreement at
5.) Furthermore, for sake of argument, even if oral modification of the contract was
permissible, viewing the evidence in appellants' favor, record evidence only supports that
Greg Fischer said he would be responsible for the $35,000 for the period of time he was
negotiating with the owners, and nothing in the record suggests that the parties were
required to demand reimbursement or payment to avoid waiving their right to that
reimbursement.
{¶ 41} Considering all the above, we find that no genuine issue of material fact
remains to be litigated, appellees are entitled to judgment as a matter of law, and viewing
the evidence most strongly in favor of appellants, reasonable minds can come to but one
conclusion, that conclusion being adverse to appellants. Civ.R. 56; Harless. Therefore,
appellees are entitled to summary judgment on their counterclaim.
{¶ 42} Accordingly, appellants' second assignment of error is overruled.
No. 17AP-213 14
V. CONCLUSION
{¶ 43} Having overruled appellants' two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.
____________________