[Cite as Olds v. Jones, 2012-Ohio-4941.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98169


                           ROBIN JONES OLDS, ET AL.

                                                    PLAINTIFFS-APPELLANTS

                                              vs.

                                 JUDY JONES, ET AL.
                                                    DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                     Probate Court Division
                                   Case No. 11 ADV 0168187

        BEFORE: E. Gallagher, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                   October 25, 2012
ATTORNEY FOR APPELLANTS

Jonathan F. Sobel
Kabat, Mielziner & Sobel
30195 Chagrin Blvd.
Suite 300
Pepper Pike, Ohio 44124


ATTORNEYS FOR APPELLEE

For Judy Jones

Richard A. Hennig
Janet L. Hennig
Baker, Hackenberg & Hennig Co.
77 North St. Clair Street
Suite 100
Painesville, Ohio 44077


For Lake National Bank

Gina M. Bevack-Ciani
Todd C. Hicks
Thrasher, Dinsmore & Dolan
100 7th Avenue
Suite 150
Chardon, Ohio 44024
EILEEN A. GALLAGHER, J.:

       {¶1} Robin Jones Olds and Martha Skurla appeal the trial court’s order granting

summary judgment in favor of defendants-appellees, Judy Jones, executor of the estate

of Martha O. Rand, and Lake National Bank. For the following reasons, we affirm.

       {¶2} This case arises out of a dispute involving a Lake National Bank account

opened by Martha Rand on February 28, 2005, that contained a pay-on-death

designation.

       {¶3} On May 5, 2011, appellants filed a complaint for declaratory judgment in

the probate division of the Cuyahoga County Court of Common Pleas, naming appellees

as defendants and seeking a declaration that appellants are the designated pay-on-death

beneficiaries on the account as well as an order to enforce the distribution of the account

to the appellants.   Defendants-appellees answered the complaint and Judy Jones, as

executor of Rand’s estate, asserted a counterclaim for declaratory judgment seeking a

declaration that the account is an asset of the estate of Rand and requesting an order that

the account’s funds be distributed pursuant to Rand’s last will and testament.

       {¶4} The trial court concluded in its ruling that the bank documents in evidence,

specifically the account’s signature card and a customer source maintenance form,

unambiguously demonstrated that Rand had terminated the pay-on-death status of the
account and deleted all beneficiaries on July 28, 2010.       The trial court ordered the

account be treated as an asset of Rand’s estate.    The sole assignment of error asserted

is:

       The trial court erred in granting summary judgment to defendants.

       {¶5} Our review of a trial court’s grant of summary judgment is de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). 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 being entitled to have the evidence construed most strongly

in his favor.   Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196

(1995), paragraph three of the syllabus; Zivich v. Mentor Soccer Club, 82 Ohio St.3d

367, 696 N.E.2d 201 (1998).        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, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

       {¶6} Appellants argue that the trial court erred in concluding that the contract

between Rand and Lake National Bank was not ambiguous.               They assert that the

account’s signature card represents the entire contract between Rand and the bank and

that the trial court erred in treating the bank’s customer source maintenance form as part

of the contract as opposed to parol evidence and that the instructions on the signature
card regarding the status of the account as pay-on-death and the existing beneficiaries are

ambiguous. They then sought to introduce parol evidence in the form of the deposition

testimony of appellant Martha Skurla and an affidavit of Patricia Capello to explain the

intentions of Rand and give meaning to the purportedly ambiguous beneficiary terms.

       Generally, courts presume that the intent of the parties to a contract resides
       in the language they chose to employ in the agreement. Only when the
       language of a contract is unclear or ambiguous, or when the circumstances
       surrounding the agreement invest the language of the contract with a
       special meaning will extrinsic evidence be considered in an effort to give
       effect to the parties’ intentions. When the terms in a contract are
       unambiguous, courts will not create a new contract by finding an intent not
       expressed in the clear language employed by the parties.

Shifrin v. Forest City Ents., 64 Ohio St.3d 635, 638, 1992-Ohio-28, 597 N.E.2d 499.

       {¶7} The determination of whether a contract is ambiguous and, therefore,

requires extrinsic evidence is a matter of law. Willard Constr. Co. v. Olmsted Falls, 8th

Dist. No. 81551, 2003-Ohio-3018, ¶ 18; Lisboa v. Lisboa, 8th Dist. No. 90105,

2008-Ohio-3129, ¶ 15.     When the terms of a contract are unambiguous courts will not,

in effect, create a new contract by finding an intent not expressed in the clear language

employed by the parties. Waina v. Abdallah, 8th Dist. No. 86629, 2006-Ohio-2090, ¶

31, citing Shifrin v. Forest City Ents., 64 Ohio St.3d 635, 1992-Ohio-28, 597 N.E.2d

499.   If no ambiguity appears on the face of the contract, parol evidence cannot be

considered in an effort to demonstrate such an ambiguity. Id. at ¶ 31. Common words

appearing in a written contract will be given their ordinary meaning unless manifest

absurdity results or some other meaning is clearly evidenced from the face or overall
contents of the instrument. Id. at ¶ 31.

       {¶8} In regard to payable-on-death bank accounts, R.C. 2131.10 provides in

relevant part as follows:

       A natural person, adult or minor, referred to in sections 2131.10 and
       2131.11 of the Revised Code as the owner, may enter into a written
       contract with any bank, * * * whereby the proceeds of the owner’s * * *
       deposit * * * may be made payable on the death of the owner to another
       person or to any entity or organization, referred to in such sections as the
       beneficiary * * *. In creating such accounts, “payable on death” or
       “payable on the death of” may be abbreviated to “P.O.D.”

       Every contract * * * authorized by this section shall be deemed to contain a
       right on the part of the owner during the owner’s lifetime both to withdraw
       the proceeds * * * in whole or in part, as though no beneficiary has been
       named, and to designate a change in beneficiary. The interest of the
       beneficiary shall be deemed not to vest until the death of the owner.

       No change in the designation of the beneficiary shall be valid unless
       executed in the form and manner prescribed by the bank * * * .

       {¶9}   In the case sub judice, a careful review of Rand’s account signature card

reveals no ambiguities as to its final pay-on-death and beneficiary terms.            An

examination of the account’s signature card reveals the following facts.    Rand created

the account on February 28, 2005.          At its inception the account was marked as

“pay-on-death” with two typewritten beneficiaries listed, Jerome T. Osborne and Judy

Jones. A handwritten check mark appears in the margin outside the account box and

closest to Osborne’s name and “(BROTHER)” and “(NIECE)” are handwritten next to

Obsorne and Jones, respectively.    The signature card shows handwritten amendments

dated July 23, 2010, and July 28, 2010.
        {¶10}   The two lines of changes dated July 23, 2010, are written beside the

existing typewritten beneficiaries and state: “ADD: MARTHA A. SKULA (NIECE),”

followed directly beneath by “ROBIN J. OLDS (NIECE).” Rand’s signature and the

date, July 23, 2010, appear directly beneath the two added beneficiaries.

        {¶11}   Above the July 23, 2010 additions exist two lines of changes dated July

28, 2010.   First, the checked “pay-on-death” box has “REMOVED 7/28/10” attached to

it.   Second, beneath the removed pay-on-death instruction and above the four listed

beneficiaries, is an amendment stating, “DELETE BENEFICIARIES,” also dated July

28, 2010, and signed by Rand.

        {¶12}   Appellants suggest that the instructions on the signature card are

ambiguous because Rand’s signature appears only once beneath the two July 28, 2010

changes: “REMOVED 7/28/10” and “DELETE BENEFICIARIES.”                      Appellants seem

to suggest that Rand should have entered a signature for both lines dated July 28, 2010.

However, the single signature for the July 28, 2010 changes is consistent with the single

signature beneath the two July 23, 2010 additions of Martha Skurla and Robin J. Olds.

Rand did not sign for each line of additions in that instance, either. We cannot say that

a single signature for two consistent amendments both clearly dated and nearly next to

one another generates any type of ambiguity that would somehow invalidate the

instruction removing the pay-on-death status from the account.

        {¶13}   Similarly, we find no merit in appellant’s argument that the term “delete
beneficiaries” is ambiguous within the context of the entire signature card.   Even if this

court considered the term “delete beneficiaries,” by itself, to be ambiguous, there

remains no reasonable construction of the term “removed 7/28/10” attached to the

pay-on-death designation consistent with the interpretation that any beneficiaries

remained after the July 28, 2010 changes.          In fact, the use of the term “delete

beneficiaries” implies that all beneficiaries were deleted and is completely consistent

with the simultaneous removal of the pay-on-death designation.

          {¶14}     Considering these facts, we cannot conclude that the signature card is

ambiguous.        To construe the language in any other manner would require this court to

ignore the clear written language of the contract.         The instruction removing the

pay-on-death designation of the account, by itself, implicitly deletes any existing

beneficiaries.     The further addition of the term “delete beneficiaries” is merely a belt

and suspenders approach that clarifies the intent of the July 28, 2010 changes as opposed

to confusing it as appellants argue.     Appellant’s argument that the intent of Rand must

be gleaned not from the plain written terms of the signature card but from the testimony

of Skurla and Capello is an attempt to generate an ambiguity by way of parol evidence

where no such ambiguity exists.1


      1
       The fact that Lake National Bank employees examined the signature card
with less than the requisite level of care and initially incorrectly informed the
appellants that they remained as beneficiaries does not render the clear terms of
the signature card ambiguous. The amendments are such that one cannot simply
glance at the card and instantaneously report its final status. However carefully
examining the amendments in their stated chronological order leads to the
       {¶15}   Appellants argue that the deposition testimony of Skurla and affidavit of

Capello should not be treated as parol evidence due to the fact that the two witnesses’

recounted conversations with Rand that occurred subsequent to Rand’s final amendment

of the account contract with Lake National Bank on July 28, 2010.

       {¶16}   Pursuant to the parol evidence rule of contract law, absent fraud or

mistake, the parties’ final written agreement may not be varied, contradicted or

supplemented by evidence of prior or contemporaneous oral or written agreements.

Provident Bank v. Spagnola, 8th Dist. No. 86348, 2006-Ohio-566, ¶ 12, citing Galmish

v. Cicchini, 90 Ohio St.3d 22, 27, 2000-Ohio-7, 734 N.E.2d 782. Appellants’ argument

appears to implicate the exception to the parol evidence rule for subsequent oral

modifications of a written agreement.      As referenced by the appellants, the parol

evidence rule “has no application to evidence regarding a subsequent oral modification

of a written agreement * * *.”   SDR & R, Inc. v. JMS Constr. Co., 8th Dist. No. 57975,

1991 Ohio App. LEXIS 360 (Jan. 31, 1991). However, the deposition testimony of

Skurla and affidavit of Capello do not concern an oral modification of Rand’s agreement

with Lake National Bank. Rand modified, in writing, her contract with the bank on

July 23 and July 28, 2010.          The testimony of Skurla and Capello concern

characterizations of what Rand represented to them to be the modifications she had made

when neither Skurla or Capello were present with Rand at the bank.    The testimony of



inescapable conclusion that after the final amendments the account’s pay-on-death
Skurla and Capello is not evidence of a subsequent oral modification of the written

agreement. Rand did not modify her agreement with the bank in her discussions with

Skurla and Capello.      Instead, Rand last modified her agreement in writing at the bank

on July 28, 2010, and any subsequent representations of those modifications that may

have been made to Skurla and Capello were characterizations of what had occurred that

day at the bank.     Any characterizations by Rand of what occurred contemporaneously to

her written modifications to the account contract are barred by the parol evidence rule

and do not fall within the exception for oral modifications.

       {¶17}     Finally, we note that the dispute among the parties as to whether or not

the customer source maintenance form should be treated as part of the contract or parol

evidence is a moot point. The form is consistent with the July 28, 2010 amendments to

the signature card removing the pay-on-death status of the account that deleted the

beneficiaries.     Whether the form is parol evidence or part of the contract is irrelevant as

the signature card is unambiguous. While the customer source form is consistent with the

signature card, any reference to the customer source form for an explanation of the clear

terms of the signature card is unnecessary.      In fact, the form adds absolutely nothing to

the present dispute as it merely restates the exact same amended terms from July 28,

2010, found on the signature card using the same language.        Whether or not the form is

properly categorized as parol evidence has no bearing on the outcome of the dispute.


designation and beneficiaries were removed.
      {¶18}   Appellant’s sole assignment of error is overruled.

      {¶19}   The judgment of the trial court is 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 lower 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

MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR
