[Cite as Dolder v. Auto Boutique Collision, Ltd., 2018-Ohio-4508.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Nicholas Dolder,                                        :

                 Plaintiff-Appellant,                   :                No. 18AP-132
                                                                      (C.P.C. No. 16CV-12264)
v.                                                      :
                                                                     (REGULAR CALENDAR)
Auto Boutique Collision, Ltd., et al.,                  :

                 Defendants-Appellees.                  :



                                            D E C I S I O N

                                    Rendered on November 6, 2018


                 On brief: Contreras Law, LLC, and Peter Contreras;
                 Coffman Legal, LLC, and Matthew J.P. Coffman, for
                 appellant. Argued: Peter Contreras.

                 On brief: Dickie, McCamey & Chilcote, P.C., Megan H.
                 Kleinman, and Jessica A. Reese, for appellees. Argued:
                 Megan H. Kleinman.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Plaintiff-appellant, Nicholas Dolder, appeals from a judgment of the Franklin
County Court of Common Pleas denying his motion for summary judgment and granting
the motion for summary judgment filed by defendants-appellees Auto Boutique Limited,
Auto Boutique Collision Ltd., and Alex Levitskiy. For the following reasons, we affirm.
I. Factual and Procedural Background
        {¶ 2} On March 16, 2015, Dolder entered an employment contract ("contract") with
appellees,1 agreeing to serve as a manager for the automobile collision repair shop located

1 Thestated parties to the contract were Dolder and "Auto Boutique Collision." Levitskiy signed the contract
as "CEO" of "Auto Boutique Collision," even though that specific name was not registered as a business in
No. 18AP-132                                                                                              2


at 1037 East 5th Avenue, Columbus, Ohio. Dolder worked as a manager at the repair shop
until his employment was terminated in May 2016. In December 2016, Dolder filed suit
against appellees for breach of contract and unjust enrichment. He alleged appellees
improperly failed to pay compensation to him under the "commission payments" provision
of the contract. In November 2017, the parties filed cross-motions for summary judgment.
In January 2018, the trial court granted appellees' motion for summary judgment and
denied Dolder's motion for summary judgment.
        {¶ 3} Dolder timely appeals.
II. Assignment of Error
        {¶ 4} Dolder assigns the following error for our review:
                The Trial Court erred in granting Appellees' motion for
                summary judgment and in denying Appellant's motion for
                summary judgment.

III. Discussion
        {¶ 5} In his sole assignment of error, Dolder asserts the trial court erred in granting
appellees' motion for summary judgment and denying his motion for summary judgment.
This assignment of error lacks merit.
        {¶ 6} Appellate review of summary judgment is de novo. Gabriel v. Ohio State
Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12. Pursuant to Civ.R. 56(C),
summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law."
Accordingly, summary judgment is appropriate only when the moving party demonstrates
(1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as
a matter of law, and (3) reasonable minds could come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment is made,


Ohio. Given the ambiguity as to the contracting employer, the trial court treated appellees collectively for
the purpose of resolving the parties' motions for summary judgment, and ultimately determined it
unnecessary, based on its disposition of those motions, to resolve which of the named defendants would be
liable under the contract. Dolder does not challenge this approach, and thus we also generally refer to them
collectively for the purpose of this appeal.
No. 18AP-132                                                                                        3


that party being entitled to have the evidence most strongly construed in its favor. Civ.R.
56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).
       {¶ 7} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280,
293 (1996). However, the moving party cannot discharge its initial burden under this rule
with a conclusory assertion that the nonmoving party has no evidence to prove its case; the
moving party must specifically point to evidence of the type listed in Civ.R. 56(C)
affirmatively demonstrating that the nonmoving party has no evidence to support the
nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the
moving party discharges its initial burden, summary judgment is appropriate if the
nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with
specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430;
Civ.R. 56(E).
       {¶ 8} At issue here is whether the trial court properly concluded that appellees are
entitled to judgment in their favor as to Dolder's claim for breach of contract.2 To succeed
on a claim of breach of contract, a plaintiff must demonstrate (1) the existence of a contract,
(2) plaintiff's performance, (3) defendant's breach, and (4) damages or loss to the plaintiff.
Thyssen Krupp Elevator Corp. v. Constr. Plus, Inc., 10th Dist. No. 09AP-788, 2010-Ohio-
1649, ¶ 13, citing Jarupan v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-5081, ¶ 18 (10th
Dist.). " 'A contract is generally defined as a promise, or a set of promises, actionable upon
breach. Essential elements of a contract include an offer, acceptance, contractual capacity,
consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual
assent and legality of object and of consideration.' " Kostelnik v. Helper, 96 Ohio St.3d 1,
2002-Ohio-2985, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409,
414 (N.D.Ohio 1976). "A meeting of the minds as to the essential terms of the contract is a
requirement to enforcing the contract." Kostelnik at ¶ 16, citing Episcopal Retirement
Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366, 369 (1991). Further, to



2 Dolder does not challenge the trial court's granting of summary judgment as to his unjust enrichment
claim.
No. 18AP-132                                                                                  4


be enforceable, a contract's terms "must be definite and certain." Episcopal Retirement
Homes at 369, citing James Ward & Co. v. Wick Bros. & Co., 17 Ohio St. 159, 164 (1867).
       {¶ 9} The interpretation of a written contract is an issue of law. Nationwide Mut.
Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108 (1995). "The purpose of contract
construction is to effectuate the intent of the parties," and that intent "is presumed to reside
in the language they chose to employ in the agreement." Kelly v. Med. Life Ins. Co., 31 Ohio
St.3d 130, 132 (1987); Skivolocki v. E. Ohio Gas Co., 38 Ohio St.2d 244 (1974), paragraph
one of the syllabus; see Hope Academy Broadway Campus v. White Hat Mgt., L.L.C., 145
Ohio St.3d 29, 2015-Ohio-3716, ¶ 35, quoting Graham v. Drydock Coal Co., 76 Ohio St.3d
311, 313 (1996) (parties are free to "contract for the terms they want, and the 'intent of the
parties is presumed to reside in the language they chose to use in their agreement.' ").
Common undefined words appearing in a written instrument "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." Alexander v. Buckeye Pipe Line Co.,
53 Ohio St.2d 241 (1978), paragraph two of the syllabus. Also, "[i]ntentions not expressed
in the writing are deemed to have no existence and may not be shown by parol evidence."
Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d 51, 53 (1989). Thus,
courts resort to extrinsic evidence of parties' intent "only where the language is unclear or
ambiguous, or where the circumstances surrounding the agreement invest the language of
the contract with a special meaning." Kelly at 132.
       {¶ 10} Dolder alleges appellees breached the contract by not fully compensating
him. The contract provided that appellees would pay Dolder an annual salary of $57,000
for his work as a manager of the repair shop. Appellees paid Dolder in accordance with that
obligation. Additionally, the contract states:
               4. COMMISSION PAYMENTS. In addition to the payments
               under the preceding paragraph [setting forth Dolder's annual
               salary], Auto Boutique Collision will make commission
               payments to Nicholas Dolder based on 10-25% OF SALARY of
               $57,000. This commission will be paid monthly on the thirtieth
               day of the following month.

(Emphasis sic.) (Ex. 1, attached to Dec. 30, 2016 Compl.) It is undisputed that appellees
did not make any payments to Dolder under this provision of the contract.
No. 18AP-132                                                                              5


       {¶ 11} The parties disagree as to the meaning of the contract's "commission
payments" provision. According to Dolder, this provision required appellees to make
monthly payments to him of at least $5,700, which was 10 percent of his annual salary of
$57,000, during his employment as a manager of the repair shop. Appellees argue this
provision is indefinite and uncertain, thereby lacking any framework for determining when
a commission is earned—making this promise to pay illusory. We agree with appellees.
       {¶ 12} As pertinent here, the term "commission" is not defined in the contract, but
it generally means compensation earned by an employee based on a percentage of revenue
generated from the employee's services. See Black's Law Dictionary 327 (10th Ed.2014)
(defining the term "commission" as a "fee paid to an agent or employee for a particular
transaction, usually as a percentage of the money received from the transaction");
Merriam-Webster's Collegiate Dictionary 249 (11th Ed.2014) (defining a "commission" in
part as "a percentage of the money received from a total paid to the agent responsible for
the business"). Conversely, a "salary" is "fixed compensation paid regularly for services."
Merriam-Webster's at 1097; see Black's at 1537 (defining "salary" as an "agreed
compensation for services * * * usually paid at regular intervals on a yearly basis").
       {¶ 13} In view of these definitions, a salary payment is fixed and not tied to any
numerical performance variable, whereas a commission payment is based on a defined
calculus relating to the employee's performance in generating revenue. Thus, the parties'
use of the term commission here indicates a general intent to somehow link the payment
to Dolder's revenue generating performance. The commission payment provision sets forth
how a commission is calculated, at least within a certain range, and when an earned
commission is paid. However, this provision does not define how a commission is earned,
such as by meeting a certain revenue benchmark. Because the contract contains no
language addressing how the commission is earned, the commission payments were
entirely at the employer's discretion, making the provision illusory. See Andreoli v. Brown,
35 Ohio App.2d 53, 55 (9th Dist.1972), quoting 1 Restatement of the Law, Contracts, Section
2, Comment b (1925) (" 'An apparent promise which according to its terms makes
performance optional with the promisor * * * is in fact no promise, although is often called
an illusory promise.' "); Imbrogno v. MIMRx.com, Inc., 10th Dist. No. 03AP-345, 2003-
Ohio-6108, ¶ 8, citing Century 21 Am. Landmark, Inc. v. Mclntyre, 68 Ohio App.2d 126
No. 18AP-132                                                                                6


(1st Dist.1980), syllabus ("A contract is illusory only when by its terms the promisor retains
an unlimited right to determine the nature or extent of his performance; the unlimited
right, in effect, destroys his promise and thus makes it merely illusory.").
       {¶ 14} In sum, the contract's commission payments provision contains no
indication the parties reached any agreement in defining the circumstances under which a
commission would be due to Dolder. Therefore, in the absence of a meeting of the minds
as to what triggers the earning of a commission, this provision is indefinite and uncertain,
rendering the promise illusory.        Because the commission payments provision is
unenforceable, the trial court properly granted summary judgment in appellees' favor.
       {¶ 15} Accordingly, we overrule Dolder's sole assignment of error.
IV. Disposition
       {¶ 16} Having overruled Dolder's sole assignment of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
                                                                         Judgment affirmed.

                         BROWN, P.J., and DORRIAN, J., concur.
