[Cite as Michael A. Gerard, Inc. v. Haffke, 2013-Ohio-168.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 98488




      MICHAEL A. GERARD, INC. D.B.A. CHILDCARE
                    SOLUTIONS
                                                              PLAINTIFF-APPELLANT

                                                     vs.

                             ROBERT HAFFKE, ET AL.
                                                              DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                       Civil Appeal from the
                                   Shaker Heights Municipal Court
                                      Case No. 11 CVI 01527

        BEFORE: Keough, J., Stewart, A.J., and Blackmon, P.J.

        RELEASED AND JOURNALIZED:                             January 24, 2013
ATTORNEY FOR APPELLANT

L. Bryan Carr
1392 SOM Center Road
Mayfield Heights, Ohio 44124

FOR APPELLEES

Robert Haffke
Louise Haffke
3264 Kenmore Road
Shaker Heights, Ohio 44122
KATHLEEN ANN KEOUGH, J.:

       {¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1.

       {¶2} Plaintiff-appellant, Michael A. Gerard, Inc., d.b.a. Childcare Solutions,

appeals the trial court’s decision entering judgment in favor of defendants-appellees,

Robert and Louise Haffke. Finding merit to the appeal, we reverse the trial court’s

judgment and remand for the trial court to enter judgment in favor of Gerard and award

damages accordingly.

       {¶3} In August 2011, the Haffkes entered into a written contract (“Client

Contract”) with Gerard for assistance in hiring a long-term childcare provider — a nanny.

 The contract required the Haffkes to pay a nonrefundable search fee of $175, which has

been paid and is not in dispute.

       {¶4} Gerard provided the Haffkes with a list of names and contact information for

potential nannies.     On September 19, 2011, the Haffkes interviewed one of the

candidates, Robin Powelson, and on September 27, the Haffkes offered Powelson the

nanny position, which she accepted. On this same day, Gerard was notified by both the

Haffkes and Powelson that they had reached a verbal employment agreement of $15 per

hour at 36 hours a week, and with a start date of November 7. Also on September 27,

Gerard contacted the Haffkes by email confirming the hiring of Powelson. The email

specifically stated: “Congratulations on selecting Robin Powelson as your new nanny!
She is very excited about the opportunity and working with your family.”

       {¶5} On October 3, 2011, after learning that Powelson was accepted by the

Haffkes, and pursuant to various sections of the Client Contract, Gerard charged the

Haffkes’s credit card the placement fee of $2,106, which would have been a percentage

of Powelson’s yearly salary.

       {¶6} On October 17, 2011, Powelson came to the Haffkes’ home to discuss

additional details of employment. Powelson was at their home for four hours, and was

compensated $60, however, the Haffkes denied that Powelson provided any services to

them or their children.

       {¶7} On October 24, 2011, the Haffkes sent Gerard an email explaining that their

circumstances had changed, that they would not be needing the services of Powelson, and

they requested that Gerard refund the $2,106 placement fee. Gerard refused to refund

the placement fee because according to the Client Contract, it was nonrefundable;

however, Gerard offered the Haffkes a credit in the amount of $2,106 for any future

services offered by Childcare Solutions.

       {¶8} The Haffkes disputed the charge with their credit card company.          The

company reversed the charge pending the resolution of the dispute. However, prior to

resolution, Gerard filed suit against the Haffkes for $2,106 and the bank fees associated

with the dispute. It was revealed at trial that the credit card company re-instated the

charge on the Haffkes’ account. Accordingly, Gerard was only seeking damages in the

amount of $259 representing the amount of the bank fees associated with the disputed
charge.

         {¶9} Following a bench trial on Gerard’s complaint, the magistrate entered

judgment in favor of the Haffkes. The magistrate in its findings of fact and conclusions

of law determined that conflicting clauses existed in the Client Contract on when the

placement fee was due. The magistrate stated that any ambiguity in a contract is to be

construed against the drafting party. Accordingly, the magistrate held that because the

Haffkes reasonably relied on the clause that provided that the placement fee was not due

unless they used the services of the care provider and they never used Powelson’s

services, the Haffkes were not liable for the placement fee. The trial court ultimately

approved the magistrate’s decision and overruled Gerard’s timely objections to the

magistrate’s decision. This appeal follows with two assignments of error presented for

our review. Finding Gerard’s second assignment of error dispositive, it will be addressed

first.

         {¶10} In his second assignment of error, Gerard contends that the trial court erred

in finding ambiguity in the contract documents; thus, erred in entering judgment in favor

of the Haffkes.

         {¶11} The question of whether a contract is ambiguous is a question of law to

which this court applies a de novo standard of review. Progress Properties, Inc. v. Baird

& Patterson, 8th Dist. Nos. 70286 and 70287, 1997 Ohio App. LEXIS 4717 (Oct. 23,

1997), citing Ohio Historical Soc. v. Gen. Maintenance & Eng. Co., 65 Ohio App.3d 139,

583 N.E.2d 340 (10th Dist.1989); Seringetti Constr. Co. v. Cincinnati, 51 Ohio App.3d 1,
553 N.E.2d 1371 (1st Dist.1988). A contract is ambiguous when it is susceptible to more

than one reasonable interpretation. Hillsboro v. Fraternal Order of Police, Ohio Labor

Council, Inc., 52 Ohio St.3d 174, 177, 556 N.E.2d 1186 (1990).

       {¶12} In this case, the trial court held that the contract contained four conflicting

clauses regarding when the placement fee was due. The Haffkes contend that they were

liable for the placement fee only if they used the services of the care provider. They

contend that because they never used Powelson’s services, they were not liable for the

placement fee. They rely on paragraph 2 of the Client Contract, which states: “Client

agrees that if he/she/they use(s) the services of a Care Provider referred by Service

pursuant to the terms and conditions of this Agreement[,] Client shall be liable to Service

for any and all fees specified in this Agreement.” Additionally, the Haffkes deny they

“hired” Powelson.

       {¶13} However, Gerard contends that the placement fee was due when Powelson

was hired or was accepted by the Haffkes. In paragraph 4, the contract provides that the

placement fee is due “at the time a referral is accepted.” In paragraph 4(A), the contract

provides that the placement fee is due “Upon acceptance of a Care Provider to be engaged

as a long-term employee, a Placement Fee will be incurred per the fee schedule in effect

at the time.” In paragraph 5, the contract provides that “placement fees are due upon

hire.” In paragraph 5(A), the contract further provides that “Acceptance of a referral by

Client constitutes authorization for Service to charge fees due directly to Client’s credit

card on file with Service without further authorization. Payment of placement fees are
due upon a care provider’s acceptance of your job offer and shall be guaranteed by a

major credit card.” Finally, the contract’s credit card authorization section, which Mr.

Haffke electronically signed, states, “I understand that once I have accepted a requested

service and accepted a referral, placement fees are nonrefundable.”

       {¶14} Accordingly, while we agree with the trial court that the contract contains
conflicting language regarding fees, we disagree with the trial court’s only statement of
law that when an ambiguity exists, the contract must be construed against the drafter.
See Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 314, 1996-Ohio-393, 667 N.E.2d
949. Rather, this rule is a secondary rule of contract construction and is not applicable
when a primary rule of contract construction clarifies the meaning of the contract.
Malcuit v. Equity Oil & Gas Funds, Inc., 81 Ohio App.3d 236, 240, 610 N.E.2d 1044 (9th
Dist.1992). It is a primary rule of contract construction and interpretation that when
confronted with an ambiguous contract, a court must first examine parole evidence to
determine the parties’ intent.
       When interpreting ambiguous contracts, courts must make a legitimate

      attempt, after hearing the relevant parol evidence, to determine the intent of

      the contracting parties. * * * Skivolocki v. E. Ohio Gas Co. (1974), 38 Ohio

      St.2d 244, 67 O.O.2d 321, 313 N.E.2d 374, paragraph one of the syllabus.

      “Where application of this rule makes the meaning of the language clear,

      the secondary rule of construction of strict construction [sic] against the

      drafter is not applicable.” Malcuit v. Equity Oil & Gas Funds, Inc. (1992),

      81 Ohio App.3d 236, 240, 610 N.E.2d 1044, 1046.

Cline v. Rose, 96 Ohio App.3d 611, 615, 645 N.E.2d 806 (3d Dist.1994) Moreover,

Ohio courts have generally resolved contract ambiguities against the drafter only where

parties lacked equal bargaining power to select contract language.         See, e.g., G.F.

Business Equip., Inc. v. Liston, 7 Ohio App.3d 223, 224, 454 N.E.2d 1358 (10th
Dist.1982).

       {¶15} In this case, the trial court did not evaluate or determine the intent of the

parties. Therefore, under our de novo review of contract interpretation, we first must

consider the intent of the parties.

       {¶16} The evidence and testimony at trial demonstrated that it was the intent of

Gerard that the Haffkes were liable for the placement fee when Powelson accepted the

position with the Haffkes. Accordingly, Gerard reasonably relied on this placement and

assessed the placement fee.

       {¶17} While the intent of Gerard is clear, we find that the Haffkes’ inactions in

this process make their intent clear as well. First, when Gerard was advised by both the

Haffkes and Powelson that an offer was extended and accepted, he sent an email to the

Haffkes congratulating them on their decision to hire Powelson. If the Haffkes had not

“hired” or offered her a position to which she accepted, it is reasonable to assume that the

Haffkes would have notified both Gerard and Powelson that they did not hire Powelson.

       {¶18} Additionally, we note that the Haffkes only disputed the placement fee

charge after they decided not to use Powelson’s services. If the Haffkes believed that the

placement fee was not payable to Gerard until after they used Powelson’s services, then

they would have disputed the charge immediately once the charge was made or when they

discovered the charge after receiving their credit card statement. Accordingly, we find it

reasonable to assume that it was their understanding that the placement fee was due upon

acceptance of the referral.
       {¶19} Finally, “[a] party entering a contract has a responsibility to learn the terms

of the contract prior to agreeing to its terms.”       Cheap Escape Co. Inc. v. Crystal

Windows & Doors Corp., 8th Dist. No. 93739, 2010-Ohio-5002, ¶ 17. One party is not

required to explain each contract provision to the other party before signing the

document.     Id., citing ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 503,

1998-Ohio-612, 692 N.E.2d 574. A party to a contract is presumed to have read and

understood the terms and is bound by a contract that he willingly signed. Id., citing

Preferred Capital, Inc. v. Power Eng. Group Inc., 112 Ohio St.3d 429, 2007-Ohio-257,

860 N.E.2d 741, ¶ 10.

       {¶20} In this case, there are at least four areas specifically providing that

placement fees are due upon “acceptance of a referral” and one general provision that if

the client uses the services of a provider, then they are liable for all fees under the Client

contract.

       {¶21} There is no evidence in the record that the Haffkes did not understand or

question any provision of the Client Contract prior to signing the document. Moreover,

the record reflects that Mr. Haffke is an attorney and he would have fully understood the

terms and conditions of the contract; thus, no unequal bargaining power exists that would

warrant ambiguities to be construed against the drafter.

       {¶22} Based on the evidence, we find that the intent of parties when executing the

contract was that the placement fee was due upon acceptance of the referral.

Accordingly, the placement fee was due when the Haffkes offered Powelson the job, she
accepted, and the parties notified Gerard. The assigment of error is sustained.

      {¶23} Having sustained Gerard’s second assignment of error, the first assignment

of error contending that the trial court merely “rubber stamped” the magistrate’s decision

is rendered moot.

      {¶24}    Judgment reversed and cause remanded for the trial court to enter

judgment in favor of Gerard and award damages accordingly.

      It is ordered that appellant recover from appellees 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, JUDGE

MELODY J. STEWART, A.J., and
PATRICIA ANN BLACKMON, P.J., CONCUR
