[Cite as Hodge v. Prater, 2014-Ohio-3152.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Derrick Hodge,                                     :

                Plaintiff-Appellee,                :
                                                                    No. 13AP-838
v.                                                 :              (C.P.C. No. 12CV-9318)

John Prater,                                       :           (REGULAR CALENDAR)

                Defendant-Appellant.               :



                                             D E C I S I O N

                                      Rendered on July 17, 2014


                Moore & Yaklevich, and John A. Yaklevich, for appellee.

                Leo P. Ross, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

CONNOR, J.

        {¶ 1} Defendant-appellant, John Prater, appeals from a judgment of the Franklin
County Court of Common Pleas granting plaintiff-appellee, Derrick Hodge's motion for
summary judgment. For the reasons that follow, we affirm the judgment of the trial court.
A. Facts and Procedural History
        {¶ 2} In 2013, appellant's real property located at 1712 Columbus Street,
sustained significant fire damage. Appellee is in the business of building construction. On
August 12, 2013, the parties executed a memorandum of understanding ("contract")
whereby appellee agreed to represent appellant in the negotiations with appellant's
insurance carrier and to perform the repair and restoration work, if necessary.
        {¶ 3} Appellant acknowledges that appellee successfully negotiated a settlement
with his insurance carrier in the total amount of $83,140.77. However, appellant elected
No. 13AP-838                                                                                2


not to repair the property. When appellee demanded payment for his representation of
appellant, appellant refused to pay. Appellee subsequently brought suit against appellant
in the Franklin County Court of Common Pleas alleging breach of contract.
       {¶ 4} On January 9, 2013, appellee filed a motion for summary judgment,
pursuant to Civ.R. 56(A), both as to liability and damages. On January 15, 2013, appellant
filed a combined memorandum in opposition to appellee's motion for summary
judgment, and a Civ.R. 56(F) motion seeking a continuance of the hearing on appellee's
motion for summary judgment. On March 15, 2013, appellant filed a motion for summary
judgment pursuant to Civ.R. 56(B). Therein, appellant asserts that appellee admitted the
truth of the matters raised in his request for admissions by failing to answer or object.
       {¶ 5} On August 30, 2013, the trial court issued a decision and entry denying
appellant's motion for a continuance, denying appellant's motion for summary judgment,
granting appellee's motion for summary judgment, and entering judgment for appellee in
the amount of $20,785.19. Appellant timely appealed to this court.
B. Assignments of Error
       {¶ 6} Appellant assigns the following as errors on appeal:
              1. The trial Court erred in granting summary judgment for
              Appellee Hodge by finding that no ambiguity existed in the
              parties' memorandum of understanding concerning the
              meaning of "Total Amount of the Settlement" and "Price
              Agreeable."

              2. The trial Court erred in not deferring a ruling upon or
              denying Appellee's motion for summary judgment until
              Appellee responded to Appellant's written discovery requests.

C. Standard of Review
       {¶ 7} Summary judgment is proper only when the party moving for summary
judgment demonstrates that: (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, that party being entitled to have the evidence most
strongly construed in that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St.3d 181, 183 (1997). When a motion for summary judgment is
No. 13AP-838                                                                               3


properly made and supported by a party seeking affirmative relief, the non-moving party
may not rest upon the mere denials of the pleadings. Regions Bank v. Seimer, 10th Dist.
No. 13AP-542, 2014-Ohio-95, ¶ 11, citing Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d
461, 2008-Ohio-87, ¶ 11. Instead, the burden shifts to the defending party to set forth
specific facts showing that there is a genuine issue for trial. Id.
       {¶ 8} Appellate review of summary judgment motions is de novo. Id., citing,
Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). " 'When
reviewing a trial court's ruling on summary judgment, the court of appeals conducts an
independent review of the record and stands in the shoes of the trial court.' " Nationwide
Mut. Ins. Co. v. Pinnacle Baking Co., Inc., 10th Dist. No. 13AP-485, 2014-Ohio-1257,
quoting Mergenthal v. Star Bank Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997).
D. Legal Analysis
       {¶ 9} In the first assignment of error, appellant argues that the trial court erred
when it granted appellee's motion for summary judgment inasmuch as the contract
contains an ambiguity which cannot be resolved as a matter of law. We disagree.
       {¶ 10} The construction of a written contract is a matter of law for a trial court.
Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978), paragraph one of the
syllabus. "Because the 'interpretation of written contracts, including any assessment as to
whether a contract is ambiguous, is a question of law,' it is subject to de novo review on
appeal." Sauer v. Crews, 10th Dist. No. 12AP-320, 2012-Ohio-6257, ¶ 11, quoting State v.
Fed. Ins. Co., 10th Dist. No. 04AP-1350, 2005-Ohio-6807, ¶ 22. The objective of any
judicial examination of a written instrument is to ascertain and give effect to the intent of
the parties. N. Coast Premier Soccer, L.L.C. v. Ohio Dept. of Transp., 10th Dist. No. 12AP-
589, 2013-Ohio-1677, ¶ 13; Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio
St.3d 51, 53 (1989). " 'The intent of the parties to a contract is presumed to reside in the
language they chose to employ in the agreement.' " Id., quoting Kelly v. Med. Life Ins. Co.,
31 Ohio St.3d 130 (1987), paragraph one of the syllabus.
       {¶ 11} The contract provides in relevant part as follows:
              III. Representation
              The Owner hereby grants the Construction Manager to
              represent the Owner for the purpose of medi[ating] with the
              Owner(s) Insurance Company pursuant to the damage claim
No. 13AP-838                                                                              4


              to the Property. It is further understood and agreed that the
              Owner hereby authorizes the Insurance Co. or Mortgage
              Company receiving a copy of this agreement to recognize the
              Construction Manager, as a party of interest with regards to
              any and all insurance drafts issued. The Owner agrees to
              pay the Construction Manager twenty-five percent of all
              sums recovered from the total amount of the settlement.

              IV. Repair Authorization
              When the "price agreeable" has been determined by the
              Construction Manager and Insurance Co., it shall become the
              final contract price and the owner authorizes the
              Construction Manager to obtain labor and material in
              accordance with the "price agreement" and upon the Terms
              and Conditions to accomplish the restoration of loss to the
              Property. The Construction Manager is to perform the work
              according to Insurance Co. pricing and approved
              supplements.

              ***

              ARTICLE 3.           THE CONTRACT PRICE

              ***

              Article 3.2 The Owner and the CM acknowledge that the
              Owner will pay the full replacement cost upon the signing of
              this contract and before restoration begins as a deposit and
              part of the purchase price of the restoration project. CM
              upon completion will submit a Certificate of Substantial
              Completion to Insurance Co. for payment demand of
              recoverable depreciation.

(Emphasis added.)

       {¶ 12} Appellant first contends that the meaning of "price agreeable" in Section IV
of the contract, and "contract price" in Article 3, is unclear and ambiguous. Appellee
counters that the outcome of this dispute rests entirely upon the language of Section III of
the contract, and that Section IV and Article 3 have no application to the undisputed facts
of this case. We agree with appellee.
       {¶ 13} It is not disputed that appellant had the right to collect insurance proceeds
without the corresponding obligation to repair the premises. The contract at issue calls for
No. 13AP-838                                                                              5


one method of compensating appellee if appellant chooses not to repair the premises and
another method of payment to appellee if appellant chooses to make the repairs. Section
III of the contract entitled "Representation" dictates appellee's compensation in the event
that appellant chooses to forego the repairs. In that event, appellant agrees to compensate
appellee for his services in "medi[ating] the damage claim" in an amount equal to
"twenty-five percent of all sums recovered from the total amount of the settlement."
       {¶ 14} On the other hand, if appellant chooses to make the repairs, Section IV of
the contract entitled "Repair Authorization" obligates appellant to compensate appellee in
the manner specified in Article 3. It is clear from the language used by the parties that
section IV applies only if appellant chooses to repair the premises. Indeed, Section IV
expressly requires appellant to "obtain labor and material," "accomplish restoration," and
"perform work." Appellee has no authority to undertake such tasks if appellant chooses
not to make the repairs. Similarly, the language in Article 3 assumes that appellee will
begin a "restoration project" and that he will "submit a Certificate of Completion."
Appellee cannot begin, let alone complete, a restoration project unless appellant chooses
to restore the premises.
       {¶ 15} Appellant attempts to muddy the waters by claiming that the "total
settlement amount" under Section III cannot be determined unless the "price agreeable"
and the "contract price" are first determined. Appellant's interpretation of the contract is
not reasonable. As noted above, appellant had the right to collect insurance proceeds
without the corresponding obligation to repair the premises. Consistent with this fact, the
parties use the term "total settlement amount" only in the context of appellee's
"representation," and they use the terms "price agreeable" and "contract price" only in the
context of repair and restoration. Thus, it is evident from the language chosen by the
parties that "total settlement amount" under Section III is not a function either of the
"price agreeable" or the "contract price." It is equally clear that where appellant chooses
not to repair the premises, there is no need to determine the "price agreeable" and
"contract price."
       {¶ 16} To the extent that appellant claims that extrinsic evidence is needed in order
to determine the intended meaning of the term "total settlement amount," we note that
the parol evidence rule presents a complete bar to such evidence in this case. The parol
No. 13AP-838                                                                              6


evidence rule is a rule of substantive law developed centuries ago to protect the integrity
of written contracts. Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 440
(1996). Pursuant to this rule, " 'absent fraud, mistake or other invalidating cause, the
parties' final written integration of their agreement may not be varied, contradicted or
supplemented by evidence of prior or contemporaneous oral agreements, or prior written
agreements.' " Galmish v. Cicchini, 90 Ohio St.3d 22, 27 (2000), quoting 11 Williston on
Contracts, Section 33:4, at 569-70 (4th Ed.1999).
          {¶ 17} In our opinion, the intended meaning of "total settlement amount" is
perfectly clear from the overall content of the document without the need for further
explanation or embellishment. There is no claim of fraud, mistake or other invalidating
cause. Simply stated, the "total settlement amount" is the sum of money appellant's
insurer agrees to pay appellant in settlement of the damage claim. Under Section III
appellant agrees to pay appellee "twenty-five percent of all sums recovered from the total
amount of the settlement." As the trial court stated, the "total settlement amount" in this
case is $83,140.77, which means that appellee is entitled to 25 percent of that sum, or
$20,785.19, as compensation for his representation of appellant.
          {¶ 18} While appellant may believe that $20,785.19 is excessive compensation
under the circumstances, there is no question that he agreed to pay that sum to appellee
for his efforts in obtaining an insurance settlement. Moreover, as the trial court noted,
appellee's affidavit and the documents attached thereto, itemize the tasks appellee
performed on appellant's behalf and the services appellee rendered to appellant in
connection with the processing of his damage claim. Appellant does not deny that
appellee performed the tasks and rendered the services necessary to obtain a settlement
of his insurance claim, nor does he claim that the negotiated settlement is inadequate.
This court will not rewrite the contract simply to relieve appellant of what he perceives as
a bad bargain. See Impressions Bldg., LLC v. Heart Specialists of Ohio, Inc., 10th Dist.
No. 06AP-275, 2006-Ohio-4719, ¶ 9, citing Ervin v. Garner, 25 Ohio St.2d 231, 239-40
(1971).
          {¶ 19} In the opinion of this court, the only reasonable conclusion one can draw
from the evidence is that appellant breached the contract by failing to pay appellee 25
percent of all sums recovered from the total amount of the settlement, and that appellee is
No. 13AP-838                                                                              7


entitled to judgment as a matter of law in the total amount of $20,785.19. Accordingly, we
hold that the trial court did not err when it granted a summary judgment in appellee's
favor. Appellant's first assignment of error is overruled.
       {¶ 20} In his second assignment of error, appellant contends that the trial court
committed reversible error when it ruled on appellee's motion for summary judgment
before appellee responded to appellant's outstanding discovery requests. We disagree.
       {¶ 21} Pursuant to Civ.R. 56(F) "[s]hould it appear from the affidavits of a party
opposing the motion for summary judgment that the party cannot for sufficient reasons
stated present by affidavit facts essential to justify the party's opposition, the court may
refuse the application for judgment or may order a continuance to permit affidavits to be
obtained or discovery to be had or may make such other order as is just." We will not
reverse a trial court's denial of a Civ.R. 56(F) motion absent an abuse of discretion. GMAC
Mtge., L.L.C. v. Purnell, 10th Dist. No. 13AP-551, 2014-Ohio-940, citing Perpetual Fed.
Sav. Bank v. TDS2 Property Mgt., LLC, 10th Dist. No. 09AP-285, 2009-Ohio-6774,¶ 11.
       {¶ 22} As noted above, the trial court denied appellant's motion for a continuance
and granted appellee's motion for summary judgment before appellee had responded to
the outstanding request for admissions, request for production of documents, and
interrogatories. The trial court did, however, find that appellee admitted the truth of the
matters raised in appellant's request for admissions.
       {¶ 23} The trial court concluded that the matters admitted by appellee were
immaterial to the dispute because they relate to terms and conditions of the contract that
apply only if appellant repairs the premises.         A review of appellant's request for
admissions leads this court to the same conclusion. Indeed, the entire "Terms and
Conditions" portion of the parties' contract, about which appellant inquires in his request
for admissions, applies only where the parties undertake the restoration project.
Similarly, with regard to the unanswered interrogatories and document requests,
appellant asserts that "[t]hese discovery requests inquired concerning the meaning of
certain contract terms." (Appellant's Reply Brief, 4.) To the extent that appellant argues
that evidence sought in discovery would have shed light on the meaning of the term "total
settlement amount," we have found that the intended meaning of that term is both clear
and unambiguous on the face of the contract. Under Ohio law, "[i]f no ambiguity appears
No. 13AP-838                                                                             8


on the face of the instrument, parol evidence cannot be considered in an effort to
demonstrate such an ambiguity." Shifrin v. Forest City Ents., Inc., 64 Ohio St.3d 635, 638
(1992), citing Stony's Trucking Co. v. Pub. Util. Comm., 32 Ohio St.2d 139, 142 (1972).
We have also determined that the intended meaning of "contract price" and "price
agreeable" is immaterial to the disposition of this case given the undisputed fact that
appellant chose not to repair the premises.
       {¶ 24} In short, even if the trial court had continued the hearing on appellee's
motion for summary judgment until appellant obtained the evidence he sought in
discovery, such evidence was either barred by the parol evidence rule or it was
inadmissible due to the lack of relevance. Under the circumstances, the trial court did not
abuse its discretion by denying appellant's motion to continue the hearing on appellee's
motion for summary judgment. Appellant's second assignment of error is overruled.
E. Conclusion
       {¶ 25} The only reasonable conclusion one can draw from the evidence is that
appellant breached the contract by failing to pay appellee for his representation and that
appellee is entitled to judgment as a matter of law. Accordingly, we hold that the trial
court did not err when it granted a summary judgment in appellee's favor. Having
overruled each of appellant's assignments of error, we affirm the judgment of the Franklin
County Court of Common Pleas.
                                                                      Judgment affirmed.
                             SADLER, P.J. and BROWN, J. concur.
