[Cite as Emergency Med. Transport, Inc. v. Massillon, 2011-Ohio-446.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

EMERGENCY MEDICAL TRANSPORT,                              JUDGES:
INC.                                                      Hon. Julie A. Edwards, P.J.
                                                          Hon. W. Scott Gwin, J.
Plaintiff-Appellant/Cross-Appellee                        Hon. William B. Hoffman, J.

-vs-                                                      Case No. 2010CA00176

CITY OF MASSILLON, OHIO, ET AL.
                                                          OPINION
Defendants-Appellees/Cross-Appellants




CHARACTER OF PROCEEDING:                              Stark County Court of Common Pleas,
                                                      Case No. 2010CV00080


JUDGMENT:                                             Reversed and Remanded


DATE OF JUDGMENT ENTRY:                               January 31, 2011


APPEARANCES:


For Plaintiff-Appellant                               For Defendants-Appellees


JOHN A. MURPHY, JR.                                   GREGORY A. BECK
ROBERT J. MCBRIDE                                     Baker, Dublikar, Beck, Wiley & Mathews
KRISTEN S. MOORE                                      400 S. Main St.
Day Ketterer Ltd.                                     North Canton, Ohio 44720
Millennium Centre-Suite 300
200 Market Avenue North
P.O. Box 24213
Canton, Ohio 44701-4213
Stark County, Case No. 2010CA00176                                                       2

Hoffman, J.


      {¶1}    Plaintiff-appellant/Cross-Appellee Emergency Medical Transport, Inc.

(“EMT”) appeals the June 7, 2010 Judgment Entry of the Stark County Court of

Common Pleas entering judgment in favor of Defendants-appellees/ Cross-appellants

the City of Massillon, Ohio, Hon. Francis H. Cicchinelli, Jr., Glen Gamber, Ronald Mang,

Gary Anderson, Katherine Catazaro-Perry, Tony M. Townsend, Donnie Peters, Jr.,

David K. McCune, Paul Manson, Larry Slagle, David Hersher and Thomas Burgasser

(“Appellees”).

      {¶2}    On cross-appeal Appellees/Cross-appellants appeal the trial court’s failure

to grant the City of Massillon governmental immunity in the within action.

                          STATEMENT OF THE FACTS AND CASE

      {¶3}    Appellant EMT is a private ambulance service provider doing business in

the City of Massillon. EMT had engaged in receiving calls on a rotational basis from the

City’s Dispatch Center to provide transport to local hospital emergency rooms.

      {¶4}    In 2007, the transport calls were shared with another private ambulance

company. At some point, the City ceased the rotation in favor of diverting all calls to the

competing ambulance company. Appellant filed suit against the City of Massillon on

July 20, 2007 in Emergency Medical Transport, Inc. v. City of Massillon, Ohio, Case No.

2007CV02971.

      {¶5}    Following settlement negotiations, the parties entered into a Mutual

Release of All Claims (“Release”). The Release was executed by Kenneth Joseph,

President of EMT, Michael Loudiana, in his capacity as the safety service Director of the

City of Massillon, and Thomas Burgasser, individually and as Fire Chief for the City of
Stark County, Case No. 2010CA00176                                                       3


Massillon. The terms of the Release provided for EMT to be included in the ambulance

rotation on a 50% basis.

       {¶6}   On November 2, 2009, the City of Massillon passed two city ordinances

effectively eliminating 50% of the ambulance calls received by EMT. EMT initiated the

within action asserting claims of breach of contract, violations of substantive due

process, unconstitutional impairment of contract, declaratory judgment , fraudulent

inducement and injunctive relief.

       {¶7}   Both parties filed a motion for summary judgment. Via Judgment Entry of

June 7, 2010, the trial court entered summary judgment in favor of Appellees finding the

Release void, and suggesting EMT should be permitted to reinstitute its prior 2007

lawsuit.

       {¶8}   EMT now appeals, assigning as error:

       {¶9}   “I. THE TRIAL COURT ERRED IN DETERMINING THAT THE MUTUAL

RELEASE OF ALL CLAIMS IS VOID FOR UNCERTAINTY.”

       {¶10} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides,

in pertinent part:

       {¶11} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence in the pending case, 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. * * * A summary judgment shall not be
Stark County, Case No. 2010CA00176                                                       4


rendered unless it appears from such evidence or stipulation and only therefrom, that

reasonable minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, such party being

entitled to have the evidence or stipulation construed most strongly in his favor.”

       {¶12} Pursuant to the above rule, a trial court may not enter a summary

judgment if it appears a material fact is genuinely disputed. The party moving for

summary judgment bears the initial burden of informing the trial court of the basis for its

motion and identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact. The moving party may not make a conclusory assertion

that the non-moving party has no evidence to prove its case. The moving party must

specifically point to some evidence which demonstrates the non-moving party cannot

support its claim. If the moving party satisfies this requirement, the burden shifts to the

non-moving party to set forth specific facts demonstrating there is a genuine issue of

material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing

Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.

       {¶13} It is based upon this standard we review EMT’s assignment of error.

       {¶14} EMT asserts the trial court erred in determining the Release was void for

uncertainty. EMT maintains there is a genuine issue of material fact as to the duration

of the contract intended by the parties, which is created by the circumstances and

representations existing at the time of execution.       As a result, EMT argues it is

necessary to look beyond the four corners of the contract to resolve the ambiguity.

Specifically, EMT argues the fact finder should be allowed to consider evidence as to all
Stark County, Case No. 2010CA00176                                                       5


the circumstances surrounding the execution of the Release and each party’s intent in

executing the Release.

       {¶15} The purpose of contract construction is to effectuate the intent of the

parties. Kelly v. Medical Life Ins. Co. (1987), 31 Ohio St.3d 130; Skivolocki v. East Ohio

Gas Co. (1974), 38 Ohio St.2d 244, 67 O.O.2d 321, 313 N.E.2d 374, paragraph one of

the syllabus. The intent of the parties to a contract is presumed to reside in the

language they chose to employ in the agreement. Id.; Blosser v. Enderlin (1925), 113

Ohio St. 121, 148 N.E. 393, paragraph one of the syllabus. A court will resort to extrinsic

evidence in its effort to give effect to the parties' intentions 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. See Blosser, supra, at paragraph

two of the syllabus; 4 Williston on Contracts (3 Ed.1961) 532-533, Section 610B.

       {¶16} The Release at issue does not contain a specific term as to duration, and

includes the following language:

       {¶17} “Each of the parties hereto warrants that no promise or inducement has

been offered except as herein set forth; that this Release was executed without relying

upon any statements or representation by the parties released, or their legal

representatives, concerning the nature and extent of any legal liability; that this

settlement and compromise are made to terminate further controversy respecting any

and all claims for damages that any of the parties hereto have heretofore asserted with

respect to the matters set forth in the pleadings in Case No. 2007CV02971.”
Stark County, Case No. 2010CA00176                                                        6

      {¶18} In Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc.

(1984), 15 Ohio St.3d 321, the Ohio Supreme Court, in construing a contract which

lacked a durational term, held:

      {¶19} “If a contract is clear and unambiguous, then its interpretation is a matter

of law and there is no issue of fact to be determined. Alexander v. Buckeye Pipe Line

Co. (1978), 53 Ohio St.2d 241, 374 N.E.2d 146 [7 O.O.3d 403]. However, if a term

cannot be determined from the four corners of a contract, factual determination of intent

or reasonableness may be necessary to supply the missing term. Hallet & Davis Piano

Co. v. Starr Piano Co. (1911), 85 Ohio St. 196, 97 N.E. 377.

      {¶20} “***

      {¶21} “It is conceded that there is no term in the Land Contract that expressly

states the duration of the Landfill Agreement. After a careful review of the record, we

conclude there is also an absence of any provision whose sole possible interpretation

clearly and unambiguously supports only one party's position as to duration. Inasmuch

as reasonable minds could differ as to the termination date, summary judgment on the

issue was inappropriate.

      {¶22} “Next we turn to the issue of whether discovery was improperly denied to

Inland.

      {¶23} “The trial court's denial of discovery was premised on its conclusion that

the express terms of the Land Contract provided the duration of the Landfill Agreement.

The evidence sought would not have been admissible to contradict the express terms of

the Agreement. Blosser v. Enderlin (1925), 113 Ohio St. 121, 148 N.E. 393. However,

evidence is admissible when the court must construe an ambiguous or missing term. In
Stark County, Case No. 2010CA00176                                                         7


light of our conclusion that the express terms of the Land Contract did not provide for

the duration of the Landfill Agreement, it follows that evidence would be admissible on

that issue and discovery should be allowed.”1

       {¶24} The Release at issue did not state the durational term of the agreement.

We conclude a factual determination of the parties’ intent or reasonableness of duration

is necessary to supply the missing term, pursuant to the rationale in Inland Refuse,

supra. We find summary judgment on the issue was inappropriate.

       {¶25} The judgment of the Stark County Court of Common Pleas is reversed,

and the matter remanded for further proceedings.

                                        CROSS-APPEAL

       {¶26} On Cross-appeal Appellees/Cross-Appellants assign as error:

       {¶27} “I. THE TRIAL COURT FAILED TO GRANT GOVERNMENTAL

IMMUNITY TO THE CITY OF MASSILLON AND ITS REPRESENTATIVES WITH

RESPECT TO APPELLANT’S CLAIMS.”

       {¶28} Ohio Revised Code Chapter 2744 grants immunity to political subdivisions

and their employees from tort claims, but has no application to claims for breach of

contract, constitutional claims, or claims seeking declaratory or injunctive relief. As the

1
  The Trial Court’s June 7, 2010 Judgment Entry cites Inland Refuse in a footnote in
order to distinguish the holding therein from the facts of this case. Specifically, the trial
court states, “unlike the instant matter, the contract in Inland Refuse specifically
referenced other documents that implied the duration of performance by the parties.
Because such documents were specifically referenced by the contract, the Court found
that there was a question of fact as to the duration of the contract and extrinsic evidence
could be used to make such determination.” However, we read Inland Refuse to hold
the contrary, as the Supreme Court found there was an absence of any provision whose
sole possible interpretation clearly and unambiguously supported only one party’s
position as to duration, whether in the original contract or the related documents. The
Court went on to conclude parole evidence was admissible to construe the missing
durational term.
Stark County, Case No. 2010CA00176                                                          8


trial court’s entry considered the contractual issue of a durational term, the trial court did

not err in not granting Appellees/Cross-appellants governmental immunity as to EMT’s

claims.

       {¶29} Appellees/Cross-appellant’s assigned error on cross-appeal is overruled.

       {¶30} The June 7, 2010 Judgment Entry of the Stark County Court of Common

Pleas is reversed, and the matter remanded to the trial court for further proceedings in

accordance with the law and this opinion.

By: Hoffman, J.

Edwards, P.J. and

Gwin, J. concur

                                              s/ William B. Hoffman _________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ Julie A. Edwards___________________
                                              HON. JULIE A. EDWARDS


                                              s/ W. Scott Gwin _____________________
                                              HON. W. SCOTT GWIN
Stark County, Case No. 2010CA00176                                                  9


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


EMERGENCY MEDICAL TRANSPORT,               :
INC.                                       :
                                           :
Plaintiff-Appellant/Cross-Appellee         :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
CITY OF MASSILLON, OHIO, ET AL.            :
                                           :
Defendants-Appellees/Cross-Appellants      :         Case No. 2010CA00176


       For the reasons stated in our accompanying Opinion, the June 7, 2010 Judgment

Entry of the Stark County Court of Common Pleas is reversed, and the matter

remanded to the trial court for further proceedings in accordance with the law and our

opinion. Costs to Appellee/Cross-appellant on both the direct and cross-appeals.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN
