[Cite as Beverage Holdings, L.L.C. v. 5701 Lombardo, L.L.C., 2017-Ohio-2983.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104559



                       BEVERAGE HOLDINGS, L.L.C.
                                                          PLAINTIFF-APPELLEE

                                                    vs.


                       5701 LOMBARDO, L.L.C. D.B.A.
                          VALENTINO-VAL L.L.C.
                                                          DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-15-846163

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

        RELEASED AND JOURNALIZED:                         May 25, 2017
ATTORNEYS FOR APPELLANT

J. Reid Yoder
Benjamin R. Sorber
Dicaudo Pitchford and Yoder
209 South Main Street, Suite 300
Akron, Ohio 44308


ATTORNEYS FOR APPELLEE

James D. Romer
Joseph T. Burke
Ashley E. Loyke
Polito, Rodstrom & Burke, L.L.P.
21300 Lorain Road
Fairview Park, Ohio 44126
MARY EILEEN KILBANE, P.J.:

       {¶1} Defendant-appellant, 5701 Lombardo, L.L.C., d.b.a . Valentino-Val, L.L.C.

(“Lombardo”), appeals from the trial court’s decision granting partial summary judgment

in favor of plaintiff-appellee, Beverage Holdings, L.L.C. (“Beverage”). For the reasons

set forth below, we affirm.

       {¶2} On April 29, 2011, Lombardo and Beverage entered into an agreement in

which Beverage purchased from Lombardo a preschool/daycare business known as the

Goddard School and the property upon which it was located for $1,726,000. Lombardo

was not able to sell the building at the time of the sale because of outstanding debt it had

on its mortgage. As a result, Lombardo and Beverage, through related entities, entered

into a sale of the business itself and a lease agreement for Beverage, through its related

company, PRB Development, L.L.C.          The lease agreement provided that Beverage

would lease the property and continue to run the Goddard School until Lombardo was

able to sell the real property. The real property purchase agreement permitted closing of

the sale of the real property to occur sometime in the future, with an anticipated closing

being several years from the date the agreement was signed. The agreement provided

Beverage with the right to notify Lombardo when it wanted to close the transaction.

       {¶3} In the interim, the parties agreed that Beverage would make monthly rental

payments to Lombardo in the amount of $12,500 until the parties closed on the

transaction. Beverage also paid the real property taxes, assessments, property and fire

insurance, all utilities, all use and occupancy taxes, and all maintenance and repairs.
Under section 3 of the agreement, the calculation of the purchase price was subject to

several adjustments. Section 3 provides in pertinent part:

      3.     Adjustments to Purchase Price. At closing, the purchase price shall
             be adjusted by providing [Beverage] a credit for the following:

             a) The Purchase Price shall be decreased by:

             ***

             ii) Rents received by Seller from the tenant of the Premises,
             prorated to date of closing.

      {¶4} On March 12, 2015, Beverage sent Lombardo a notice of its intent to

purchase the property. On May 19, 2015, Lombardo responded by notifying Beverage

that it was revoking the agreement and disputed Beverage’s interpretation of the section

3(a)(ii), which adjusted the final purchase price for the rents paid by Beverage.

Beverage then filed a complaint against Lombardo for declaratory judgment, damages,

injunction, specific performance, and other legal and equitable relief. Beverage alleges

that Lombardo breached the agreement when it unilaterally revoked and repudiated on the

purchase agreement when Beverage exercised its “notice of intent to close transaction.”

Beverage sought to purchase the premises for $1,202,110.09, which included adjustments

for principal payments, prepayment fee, $462,500 in rent credits, and the security deposit.

 Lombardo refused to accept the final purchase price, alleging that Beverage failed to

close within 180 days of signing the purchase agreement. Lombardo further alleged that

the agreement intended to provide credits only for rents received for the period following
the date of closing, prorated to the date of closing. Relevant to this appeal, Beverage

sought a declaratory judgment

      a) As to the calculation of the final purchase price pursuant to the terms and
      conditions stated in the Purchase Agreement; and

      b) The interpretation of how much in rent is subject to the reduction noted
      in Section 3 of the Purchase Agreement where it states that the purchase
      price will be reduced by: “Rents received by Seller from the tenant of the
      Premises, prorated to date of Closing.”

      {¶5} Both parties filed motions for summary judgment. After reviewing both

motions, the trial court denied Lombardo’s motion for summary judgment and granted

Beverage’s motion in part. In a thoughtful opinion, the court stated:

      [Beverage] seeks a declaratory judgment interpreting Section 3(a)(ii) of the
      Agreement. Section 3(a)(ii) states the purchase price for the property shall
      be adjusted by providing [Beverage] a credit for “Rents received by
      [Lombardo] from [Beverage] of the Premises, prorated to date of closing.”
      Both parties agree there is a credit for rents received. [Beverage] believes
      the credit applies to all rents received from the date of the Agreement.
      [Lombardo] believes the credit applies only to a prorated amount of the last
      month’s rent according to the date of closing.

      ***

      When parties to a contract dispute the meaning of the contract language,
      courts must first look to the four corners of the document to determine
      whether or not ambiguity exists. If the contract terms are clear and precise,
      the contract is not ambiguous. See Beasly v. Monoko, Inc., 195 Ohio
      App.3d 93, 2011-Ohio-3995, 958 N.E.2d 1003 (10th Dist.).

      The Court finds the language at issue to be unambiguous, and supportive of
      [Beverage’s] interpretation applying the credit to all rents received by
      [Lombardo]. In contrast, the language does not support [Lombardo’s]
      interpretation limiting the credit to a prorated amount of a single month’s
      rent payment. No such limit exists in the actual language used by the
      parties. The Agreement clearly provides [Beverage] a credit for rents
      received by [Lombardo], and allows for the final month’s rent credit to be
       prorated according to the date of closing.

       The interpretation of Section [3(a)(ii)] is appropriate for disposition through
       a declaratory judgment action. As there are no issues of material fact and
       because reasonable minds can come to but one conclusion, [Beverage] is
       entitled to Summary Judgment on Count I of its Complaint as it relates to
       the interpretation of Section 3(a)(ii) of the Agreement. The Court finds
       that Section 3(ii)(a) of the Agreement provides [Beverage] a credit for all
       rents paid from the date of the Agreement until closing.

       {¶6} It is from this order Lombardo appeals, raising the following three

assignments of error for review.

                                   Assignment of Error One

       The trial erred when it interpreted the contract to provide for a credit of all
       rent paid and failed to give full effect to the term “prorated” in the contract.

                                   Assignment of Error Two

       The trial court erred when it failed to consider extrinsic evidence in
       interpreting the contract.

                                Assignment of Error Three

       The trial court erred when it granted summary judgment in favor of
       [Beverage] as to the interpretation of the parties’ contract.

       {¶7} Within these assigned errors, Lombardo argues the trial court erred in

interpreting the contract to provide Beverage with a credit for all rents paid from the date

of the agreement until closing, instead of prorating the rent to the month of closing.

Lombardo further argues the court erred when it failed to consider extrinsic evidence in

interpreting the contract.

       {¶8} We review an appeal from summary judgment under a de novo standard of

review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996);
Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 N.E.2d 860

(8th Dist.1998).    In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370,

1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set forth the appropriate test as

follows:

       Pursuant to Civ.R. 56, 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. (1995), 73 Ohio St.3d 679,
       1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus. 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 (1996), 75 Ohio St.3d 280, 292-293,
       1996-Ohio-107, 662 N.E.2d 264.

       {¶9} Once the moving party satisfies its burden, the nonmoving party “may not

rest upon the mere allegations or denials of the party’s pleadings, but the party’s response,

by affidavit or as otherwise provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio

St.3d 383, 385, 667 N.E.2d 1197 (1996). Doubts must be resolved in favor of the

nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d

138 (1992).

       {¶10} The construction of a written contract is a matter of law.        Alexander v.

Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), at paragraph one of

the syllabus. “Generally, courts presume that the intent of the parties to a contract

resides in the language they chose to employ in the agreement.” Shifrin v. Forest City
Ents., Inc., 64 Ohio St.3d 635, 638, 597 N.E.2d 499 (1992), citing Kelly v. Med. Life Ins.

Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraphone of the syllabus; Aultman

Hosp. Assn. v. Community 104 Mut. Ins. Co., 46 Ohio St.3d 51, 544 N.E.2d 920 (1989),

syllabus.   Contracts are to be read as a whole, giving effect to every part of the

agreement, and the intent of the parties is to be determined from the contract as a whole.

London Guar. & Acc. Co. v. Empire Plow Co., 115 Ohio St. 684, 689, 155 N.E. 382

(1927). “Common words appearing in a written instrument are to be given their plain

and ordinary meaning unless manifest absurdity results or unless some other meaning is

intended from the face or overall contents of the instrument.”       (Citations omitted.)

Alexander at 245-246.

       {¶11} Only when the language of a contract is 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. Kelly at 132. Extrinsic or parol evidence is “admissible to explain

an ambiguity or uncertainty arising out of the terms of a written instrument.” Suburban

Ford Tractor Sales, Inc. v. Orlean Co., 8th Dist. Cuyahoga No. 33654, 1975 Ohio App.

LEXIS 6167, *8 (Apr. 3, 1975).         However, “[w]hen the terms in 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.”          Shifrin at 638, citing

Alexander at 246.
       {¶12} In the instant case, the initial purchase price as provided in the agreement is

$1,726,000.1 Under section 3(a)(ii), this price is to be adjusted as follows:

       a) The Purchase Price shall be decreased by:

               ***

             ii) Rents received by Seller from the tenant of the Premises,
             prorated to date of closing.
       {¶13} The plain reading of this section provides that the initial purchase price will

be reduced by rents received by Lombardo from Beverage, prorated to date of closing.

Lombardo contends the above phrase means that the purchase price is reduced only by the

singular prorated rent paid in the month of closing. We disagree.

       {¶14} Relying on the four corners of the agreement and giving these terms their

ordinary meaning, the agreement provides for all rent paid by Beverage to be deducted

from the initial purchase price. In fact, Lombardo’s attorney solely drafted section 3 of

the agreement. It is undisputed the parties were aware that there was a significant delay

of up to five years before the closing of the sale. Lombardo’s lenders conditioned

permission for the lease upon the payoff by Lombardo within five years. This is evident

by the agreement providing Beverage with a credit to the purchase price for all rents paid.

 If closing had occurred within the customary few weeks, then the lease would have been

unnecessary.   In addition, the rent is prorated because it is prepaid.         As a result,




       1 The$1,726,000 purchase price was based on the total amount Lombardo
owed its lenders.
Beverage would not receive a credit for rent amounts that were not yet due. The phrase

“prorated to closing” conveys this concept.

       {¶15} Lombardo further argues the court erred by not considering parol evidence

when interpreting the contract. Lombardo seeks to introduce parol evidence to give full

effect of the parties’ intent. Parol evidence, however, may only be admitted when the

terms of the contract are ambiguous. Having determined the terms of the agreement are

unambiguous, we find the parol evidence rule inapplicable to the instant case.

       {¶16} In light of the foregoing, we find the trial court properly granted partial

summary judgment in Beverage’s favor.

       {¶17} Accordingly, the first, second, and third assignments of error are overruled.

       {¶18} Judgment is affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas 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.




MARY EILEEN KILBANE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., CONCURS;
MELODY J. STEWART, J., DISSENTS (SEE SEPARATE DISSENTING OPINION)
MELODY J. STEWART, J., DISSENTING:

       {¶19} I agree that standing alone, the plain language of the clause stating that the

purchase price of the property would be decreased by “[r]ents received by Seller from the

tenant of the Premises, prorated to date of closing” seems to apply to all rents received

from the tenant, not just the rent paid during the closing period. Nevertheless, we should

not give words used in a contract their ordinary meaning if “manifest absurdity results.”

Cincinnati Ins. Co. v. Anders, 99 Ohio St.3d 156, 2003-Ohio-3048, 789 N.E.2d 1094, ¶

34. When such a situation exists, the court should engage in fact-finding to give the

contract the most sensible and reasonable interpretation. Kelly v. Med. Life Ins. Co., 31

Ohio St.3d 130, 132, 509 N.E.2d 411 (1987).

       {¶20} An unreasonable and unintended result occurs if we read this contract clause

in isolation from two other contract provisions: the reduction in principal credit and

closing. The real estate purchase agreement states that Lombardo’s financing at the time

made it impractical to currently close the transaction and, in fact, that the sale might not

close for “several years.” In consideration of this fact, the parties agreed that Lombardo

would reduce the purchase price to Beverage Holdings “by the amount of principal

payments made by Seller to Seller’s lender for the mortgage notes currently on the

property” and that, at closing, Beverage Holdings would “receive a credit equal to the

reduction in principal for the mortgage notes from the date of the execution of this

agreement until the closing date.” Given that the parties understood that Lombardo had
issues with its financing prior to entering into the real estate purchase agreement, it would

be absurd to conclude that Lombardo intended to deduct from the purchase price both

principal payments and all rents received during what could be a lengthy lease term (the

parties contemplated a lease term of as much as ten years). Doing so would seem only to

undermine its already precarious financial situation.

       {¶21} The closing clause also indicates that the rent proration reduction was meant

to apply only to rent paid after Beverage Holdings gave notice of intent to close. The

parties anticipated a closing time between 120-180 days. Given this amount of time, it

was prudent for the parties to state that any rents, which were payable in advance under

the lease, be prorated to closing.

       {¶22} Admittedly, the real estate purchase agreement is not a model of clarity.

But reasonable minds could find that Beverage Holdings is attempting to take advantage

of errors in drafting that go beyond the hard consequences of imprecision and lapse into

absurdity. I would find that questions of fact exist as to what the parties truly intended

with the rent proration clause.
