[Cite as Allied Erecting & Dismantiling Co., Inc. v. Ohio Edison Co., 2011-Ohio-2627.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

ALLIED ERECTING AND DISMANTLING                         )
CO., INC., et al.,                                      )
                                                        )
        PLAINTIFFS-APPELLANTS,                          )
                                                        )             CASE NO. 10-MA-25
V.                                                      )
                                                        )                    OPINION
OHIO EDISON COMPANY,                                    )
                                                        )
        DEFENDANT-APPELLEE.                             )

CHARACTER OF PROCEEDINGS:                               Civil Appeal from Court of Common
                                                        Pleas of Mahoning County, Ohio
                                                        Case No. 06CV3604

JUDGMENT:                                               Affirmed

APPEARANCES:
For Plaintiffs-Appellants                               Attorney F. Timothy Grieco
                                                        Attorney Timothy D. Berkebile
                                                        44th Floor, 600 Grant Street
                                                        Pittsburgh, PA 15219

                                                        Attorney Kevin L. Bradford
                                                        Attorney Jay M. Skolnick
                                                        Attorney Peter B. Grinstein
                                                        Attorney Kathryn A. Vadas
                                                        20 West Federal St., Suite 600
                                                        Youngstown, Ohio 44503-1423

For Defendant-Appellee                                  Attorney John T. Dellick
                                                        P.O. Box 6077
                                                        Youngstown, Ohio 44501-6077
JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro

                                                        Dated: May 26, 2011
[Cite as Allied Erecting & Dismantiling Co., Inc. v. Ohio Edison Co., 2011-Ohio-2627.]
DONOFRIO, J.

        {¶1}     Plaintiffs-appellants Allied Erecting and Dismantling Company, Inc.
(AED) and Allied Gator, Inc. (Allied Gator) (collectively Allied) appeal a Mahoning
County Common Pleas Court decision awarding a balance due on a contract Allied
had with defendant-appellee Ohio Edison Company (Ohio Edison).
        {¶2}     In early 2006, Allied sought to expand its manufacturing facility. That
expansion would require an increase in the power needed for the facility which in turn
would require the building of an electrical substation with two transformers.
        {¶3}     On April 21, 2006, representatives from Allied and Ohio Edison met to
discuss construction of the substation and the acquisition of two transformers. Allied
was represented by its president, John Ramun, as well as Ed Klein, an electrical
draftsman, and Jim Feuse, an engineer for Allied. Ohio Edison was represented by
Lisa Nentwick, Senior Account Manager, and John Podnar. According to Ramun,
Nentwick and Podnar agreed that Ohio Edison would provide the main substation
design, supply electrical components, and solicit and receive bids for the construction
of the substation.       A cost plus fifteen percent was discussed as the cost of the
project.
        {¶4}     On May 1, 2006, Nentwick sent Ramun a written contract for the design
and procurement of the two transformers required for the substation. Attorneys for
both Ohio Edison and Allied reviewed the contract and negotiations followed. By the
time Ramun signed the contract on May 8, 2006, the price for the transformers was
$833,657.52.
        {¶5}     In August 2006, representatives of Allied and Ohio Edison met again to
discuss construction of the substation. Ohio Edison indicated that the mark-up was
going to have to be twenty-seven percent, not the fifteen percent discussed in April.
Allied objected to the pricing and further discussions for the design and construction
of the substation ended.
        {¶6}     On September 14, 2006, Allied sued Ohio Edison for specific
performance and an accounting. Allied alleged that the April 21, 2006 discussions
between representatives from both Ohio Edison and Allied resulted in an agreement
                                                                               -2-


for Ohio Edison to design and build Allied an electrical substation, including the
procurement of two transformers for the substation. In the weeks following the filing
of the complaint, the parties attempted to conciliate the dispute and Ohio Edison
produced documents pertaining to the design of the substation. According to Allied,
this caused a delay in Allied constructing the substation thus requiring it to store the
two transformers.
      {¶7}   As a result, Allied filed an amended complaint on May 18, 2007, setting
forth two counts. The first count was for an accounting to determine Ohio Edison’s
actual costs in purchasing the two transformers. Due to the alleged breach of the
alleged agreement to design and build the substation, Allied contends Ohio Edison
should not be allowed to profit from the mark-up of the transformers. The second
count was for breach of what Allied perceived was a contract that resulted from the
April 21, 2006 meeting.
      {¶8}   Ohio Edison filed an answer and two counterclaims. The first count of
the counterclaim sought declaratory judgment that no agreement had been reached
between Allied and Ohio Edison for Ohio Edison to design and build the substation.
Ohio Edison alleged that it performed only preliminary conceptual work to enable
Ohio Edison to begin pricing the substation design and construction. The second
counterclaim was for breach of the written contract between Ohio Edison and Allied
for Ohio Edison to obtain the two transformers. Ohio Edison contended that there
was a balance due on the transformers of $166,731.50 plus interest.
      {¶9}   On August 20, 2009, Ohio Edison filed a motion for partial summary
judgment. On November 5, 2009, a magistrate sustained the motion in part and
overruled it in part. The magistrate found that the contract between Ohio Edison and
Allied regarding the acquisition of the two transformers was clear, unambiguous, and
susceptible of only one interpretation.     The magistrate noted that the contract
contained no reference that it was contingent upon any other condition or agreement.
Therefore, the magistrate concluded that parol evidence was inadmissible to vary or
otherwise contradict that contract. Consequently, the magistrate ordered Allied to
                                                                              -3-


pay the balance remaining due on the transformers. However, the magistrate did find
that there were genuine issues of material fact concerning whether the parties
entered into an enforceable oral contract to design and build the substation.
Following a premature appeal to this court and the subsequent denial of Allied’s
objections to the magistrate’s decision, this timely appeal followed.
       {¶10} Allied advances three assignments of error. Allied’s first assignment of
error states:
       {¶11} “The trial court committed reversible error when it granted Defendant-
Appellee’s Motion for Partial Summary Judgment and found that parol evidence of
the April 21, 2006 Oral Contract, was inadmissible to demonstrate that the Written
Transformer Contract was a part of the overarching April 21, 2006 Oral Contract.”
       {¶12} The thrust of Allied’s argument on appeal is that the transformer
contract was part of an overarching agreement to design and build a substation
which was orally agreed upon at the April 21, 2006 meeting. Allied believes parol
evidence of the April 21, 2006 discussions should have been allowed to have been
admitted to establish this overarching agreement. Ohio Edison views the transformer
contract and the April 21, 2006 discussions separately.       It views the transformer
contract as a wholly integrated contract upon which Allied has not fully paid the
balance due and the April 21, 2006 discussions as evidence it performed only
preliminary conceptual work to enable Ohio Edison to begin pricing the substation
design and construction. It contends any discussions that occurred at the April 21,
2006 meeting are barred by the parol evidence rule to vary or alter the terms of the
transformers contract.
       {¶13} “The parol-evidence rule is a principle of common law providing that ‘a
writing intended by the parties to be a final embodiment of their agreement cannot be
modified by evidence of earlier or contemporaneous agreements that might add to,
vary, or contradict the writing.’ Black’s Law Dictionary (8th Ed.2004) 1149; see, also,
Galmish v. Cicchini (2000), 90 Ohio St.3d 22, 26, 734 N.E.2d 782, quoting 11
Williston on Contracts (4th Ed.1999) 569-570, Section 33:4. The rule ‘operates to
                                                                             -4-


prevent a party from introducing extrinsic evidence of negotiations that occurred
before or while the agreement was being reduced to its final written form,’ Black’s
Law Dictionary at 1149; see, also, Ed Schory & Sons, Inc. v. Francis (1996), 75 Ohio
St.3d 433, 440, 662 N.E.2d 1074, and it ‘assumes that the formal writing reflects the
parties’ minds at a point of maximum resolution and, hence, that duties and
restrictions that do not appear in the written document * * * were not intended by the
parties to survive.’ Black’s Law Dictionary at 1150.” Bellman v. Am. Internatl. Group,
113 Ohio St.3d 323, 2007-Ohio-2071, 865 N.E.2d 853, at ¶7.
      {¶14} There are as many as six exceptions or limitations to the parol evidence
rule. See Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio St.3d 546, 2009-
Ohio-3554, 913 N.E.2d 410, at ¶27, citing Russell v. Daniels-Head & Assocs., Inc.
(June 30, 1987), 4th Dist. No. 1600. Under this assignment of error, Allied advances
three sub-arguments representing three possible exceptions or limitations to the parol
evidence rule that it believes would allow admission of the discussions that took
place at the April 21, 2006 meeting.
      {¶15} The first exception Allied proposes involves contingent or dependent
agreements:
      {¶16} “The Trial Court Should Have Permitted Parol Evidence Of The Parties’
April 21, 2006 Oral Agreement Because This Evidence Showed That The Written
Transformer Contract Was Contingent Upon The Parties’ Overall Agreement to
Design And Build A Substation.”
      {¶17} Under this issue presented for review, Allied relies heavily on Center
Ridge Ganley, Inc. v. Stinn (1987), 31 Ohio St.3d 310, 31 OBR 587, 511 N.E.2d 106,
to argue that “the parol evidence rule will not bar a party from introducing evidence
that one agreement is unenforceable because it was contingent or dependent upon
another agreement.”     In Center Ridge, Thomas Ganley attempted to buy an
automobile dealership, Ed Stinn Chevrolet, from Ed Stinn. The property upon which
the dealership sat was owned by Barbara Stinn. The parties executed two separate
agreements for the purchase. The first one was an assets agreement concerning the
                                                                              -5-


dealership itself. The second was a real estate agreement for the property upon
which the dealership sat. An addendum to the assets agreement stated that it was
conditioned upon the purchase of the real estate.           The real estate agreement
specifically referenced the sale of the assets.       Chevrolet withheld approval of a
transfer of the dealership and the closing date for the assets agreement elapsed.
Ganley attempted to then close on the real estate agreement and Barbara Stinn
refused. Ganley then sought specific performance of the real estate agreement.
       {¶18} At trial on the specific performance claim, Ganley attempted to
introduce parol evidence that the agreements were separate and independent of
each other. The Stinns attempted to introduce parol evidence that the agreements
were interrelated and contingent. The trial court found that the agreements were
intended to be contingent upon one another and denied Ganley’s request for specific
performance. Ganley argued on appeal that it was error for the trial court to allow
parol evidence that the agreements were contingent upon one another.
       {¶19} The Ohio Supreme Court stated, “[t]he evidence submitted as to
whether the real estate agreement was contingent upon the consummation of the
assets agreement did not vary or alter the terms of the real estate agreement; it
merely explained the operation of the contract as intended by the parties.” Id. at 313,
31 OBR 587, 511 N.E.2d 106.
       {¶20} Allied’s reliance on Center Ridge is misplaced. First, referencing the
parol evidence rule, the Court noted that “the admission of parol testimony to explain
certain ambiguous terms not inconsistent with or contradictory to the language of the
contract was nevertheless proper in this cause.” (Emphasis added.) Id. In Center
Ridge, the Court specifically found that “the real estate agreement was not altogether
complete on its face, but rather its very terms indicated that it was part of a larger
transaction involving the sale of an automobile dealership.”
       {¶21} In this case, the transformer contract contains no such ambiguity.
Indeed, it specifically states just above the signature line:
       {¶22} “THE      OHIO     EDISON      COMPANY         GENERAL    TERMS      AND
                                                                                  -6-


CONDITIONS, INCLUDING THE WARRANTY AND LIMITATIONS OF LIABILITY
ATTACHED HERETO ARE INCORPORATED INTO AND MADE PART OF THIS
AGREEMENT. BY ITS SIGNATURE THE PARTY ACKNOWLEDGES THAT IT HAS
READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY
ITS TERMS AND CONDITIONS, AND THAT IT CONSTITUTES THE ENTIRE
AGREEMENT RESPECTING THE SUBJECT MATTER HEREOF.”
       {¶23} Allied’s president signed the contract just below this provision.
Additionally, Allied’s attorneys had the opportunity to review and negotiate its terms.
Consequently, it cannot be said that this agreement did not constitute the entire
agreement when by its very terms it states that it is the entire agreement.
       {¶24} The second possible exception or limitation Allied proposes is partial
integration:
       {¶25} “The May 8, 2006 Written Transformer Contract Is Only Partially
Integrated And, Thus, The Parol Evidence Rule Does Not Bar Evidence Of The April
21, 2006 Oral Agreement, Which Does Not In Any Manner Contradict The Written
Agreement.”
       {¶26} Allied argues that another basis for allowing admission of the April 21,
2006 design-build discussions is that the transformer contract was a partial
integration because it did not cover the subject matter of the April 21, 2006
discussions.
       {¶27} Another one of the exceptions to the application of parol evidence is
when a contract is not truly a final written integration of the parties’ agreement.
Galmish v. Cicchini (2000), 90 Ohio St.3d 22, 29, 734 N.E.2d 782. “An ‘integration’
for these purposes is ‘[t]he full expression of the parties’ agreement, so that all earlier
agreements are superseded, the effect being that neither party may later contradict
or add to the contractual terms.’ Black’s Law Dictionary (9th Ed.2009) 880. If an
integration is a ‘complete integration,’ then it fully expresses the intent of the parties,
and parol evidence is inadmissible. Id. On the other hand, if an integration is a
‘partial integration,’ then it does not fully express the parties’ intent, and ‘[p]arol
                                                                              -7-


(extrinsic) evidence is admissible to clear up ambiguities with respect to the terms
that are not integrated.’” (Emphasis added.) Williams v. Spitzer Autoworld Canton,
L.L.C., 122 Ohio St.3d 546, 2009-Ohio-3554, 913 N.E.2d 410, at ¶28.
       {¶28} Further, as the Ohio Supreme Court explained in TRINOVA Corp. v.
Pilkington Bros., P.L.C. (1994), 70 Ohio St.3d 271, 276, 638 N.E.2d 572:
       {¶29} “Integration is a rule of substantive law to be decided by the trial judge
in the first instance. See 4 Williston on Contracts 3d (1961) 955, Section 633. The
question of partial integration must be determined from the four corners of the
document itself and not by a prefatory table of documents as [appellant] suggests.
See 2 Restatement of the Law 2d, Contracts (1981) 117-118, Section 210(3).
Furthermore, in the case of a partial integration, only consistent additional terms may
be added, not inconsistent terms.” (Emphasis added.)
       {¶30} In this case, the partial integration exception is not applicable. Allied
has not pointed to any ambiguity within the four corners of the transformer contract
that would suggest that the contract is partially integrated. To the contrary, as the
trial court found, the transformer contract is clear, unambiguous, and susceptible of
only one interpretation.     It was for the sale of two transformers with certain
specifications for a total cost of $833,657.52.
       {¶31} Furthermore,      as    indicated    in   the   discussion    concerning
contingent/dependent agreements exception, the contract specifically contained an
integration clause stating that the agreement was wholly integrated:
       {¶32} “THE     OHIO     EDISON      COMPANY       GENERAL       TERMS      AND
CONDITIONS, INCLUDING THE WARRANTY AND LIMITATIONS OF LIABILITY
ATTACHED HERETO ARE INCORPORATED INTO AND MADE PART OF THIS
AGREEMENT. BY ITS SIGNATURE THE PARTY ACKNOWLEDGES THAT IT HAS
READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY
ITS TERMS AND CONDITIONS, AND THAT IT CONSTITUTES THE ENTIRE
AGREEMENT RESPECTING THE SUBJECT MATTER HEREOF.”
       {¶33} The third exception or limitation Allied proposes is promissory fraud:
                                                                                 -8-


       {¶34} “The Parol Evidence Rule Does Not Bar Evidence That Ohio Edison’s
Representatives Fraudulently Misrepresented Their Authority And Ability To Enter
Into An Overall Agreement To Design and Build A Substation.”
       {¶35} “[T]he parol evidence rule does not prohibit a party from introducing
parol or extrinsic evidence for the purpose of proving fraudulent inducement.”
Galmish v. Cicchini (2000), 90 Ohio St.3d 22, 28, 734 N.E.2d 782.
       {¶36} “[T]his principle does not lose its force merely because the considered
written agreement contains an integration clause. The parol evidence rule applies, in
the first instance, only to integrated writings, and an express stipulation to that effect
adds nothing to the legal effect of the instrument. The presence of an integration
clause makes the final written agreement no more integrated than does the act of
embodying the complete terms into the writing. Thus, the presence of an integration
provision does not vitiate the principle that parol evidence is admissible to prove
fraud.” Id.
       {¶37} However, the parol evidence rule may not be avoided “by a fraudulent
inducement claim which alleges that the inducement to sign the writing was a
promise, the terms of which are directly contradicted by the signed writing.
Accordingly, an oral agreement cannot be enforced in preference to a signed writing
which pertains to exactly the same subject matter, yet has different terms.” Marion
Prod. Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 533 N.E.2d 325, paragraph
three of the syllabus.
       {¶38} In this case, Allied argues that it reasonably relied on Ohio Edison’s
promise to build and design the electrical substation on cost plus fifteen percent
basis. In his affidavit, Allied’s president, John Ramun maintains he would have never
ordered the transformers had he known that there was no deal for completion of the
substation.
       {¶39} Allied’s fraud argument is flawed for two reasons. First, as Ohio Edison
aptly points out, Allied never pled fraud with particularity as required by Civ.R. 9(B).
Civ.R. 9(B) provides:
                                                                                -9-


       {¶40} “In all averments of fraud or mistake, the circumstances constituting
fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and
other condition of mind of a person may be averred generally.” (Emphasis added.)
       {¶41} The circumstances constituting fraud means the plaintiff must state the
time, place and content of the false representation, the fact misrepresented, and
what was obtained or given as a consequence of the fraud. The plaintiff must allege,
at a minimum, the time, place and contents of the misrepresentation on which they
relied. Generally, the pleadings must be sufficiently particular to appraise the
opposing party of the claim against him. Haddon View Investment Co. v. Coopers &
Lybrand (1982), 70 Ohio St.2d 154, 158-159.
       {¶42} Moreover, failure to plead fraud with particularity results in waiver of
that claim. Klasa v. Rogers, 8th Dist. No. 83374, 2004-Ohio-4490, at ¶39.
       {¶43} In this instance, Allied filed a complaint and an amended complaint and
in neither instance pled fraud at all, let alone with any particularity. Consequently,
Allied failed to comply with Civ.R. 9(B) and waived that claim.
       {¶44} Secondly, the waiver issue aside, Allied has not fulfilled all the elements
of a fraud claim. The elements of fraud consist of “(a) a representation or, where
there is a duty to disclose, concealment of a fact, (b) which is material to the
transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter
disregard and recklessness as to whether it is true or false that knowledge may be
inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable
reliance upon the representation or concealment, and (f) a resulting injury
proximately caused by the reliance.” Groob v. KeyBank, 108 Ohio St.3d 348, 2006-
Ohio-1189, 843 N.E.2d 1170, at ¶47, citing Gaines v. Preterm-Cleveland Inc. (1987),
33 Ohio St.3d 54, 55, 514 N.E.2d 709.
       {¶45} Allied’s assertion that it reasonably relied on Ohio Edison’s promise to
design and build the substation on the basis of cost plus fifteen percent when it
purchased the transformers does not amount to fraud. Allied has not averred that
Ohio Edison’s representatives made the alleged representation falsely, with
                                                                                 - 10 -


knowledge of its falsity, or with such utter disregard and recklessness as to whether it
is true or false that knowledge may be inferred. In fact, Allied admits that it agreed to
pay $833,657.52 for the two transformers.
       {¶46} Accordingly, Allied’s first assignment of error is without merit.
       {¶47} Allied’s second assignment of error states:
       {¶48} “The trial committed reversible error when it granted Defendant-
Appellee’s Motion for Partial Summary Judgment and found that the amount of
$166,731.50 together with interest at the contractual rate of 1½% is due and owing
from Plaintiff-Appellee.”
       {¶49} Allied argues that Ohio Edison’s breach of the April 21, 2006 agreement
“discharges” its duty to fully perform (i.e., pay the balance) on the transformer
contract. The entire premise of the Allied’s argument under this assignment of error
is flawed.    Allied’s argument under this assignment of error assumes that the
transformer contract was part of an overarching agreement to design and build a
substation.    As already indicated, there were two separate contracts – the
transformers contract and whatever contract arose from the April 21, 2006
discussions. As the trial court determined, there are genuine issues of material fact
concerning whether an oral contract was created at that April 21, 2006 meeting. And
Allied has not assigned error to the trial court’s determination in that regard. Whether
or not a contract existed as a result of the April 21, 2006 discussions and whether or
not Ohio Edison breached that contract will be for a jury to determine.
       {¶50} Accordingly, Allied’s second assignment of error is without merit.
       {¶51} Allied’s third assignment of error states:
       {¶52} “The trial court committed reversible error when it granted Defendant-
Appellee’s Motion for Partial Summary Judgment and found that Plaintiff-Appellant is
not entitled to an accounting as prayed for in Count I of its Amended Complaint.”
       {¶53} For reasons unknown, while Allied sets forth this assignment of error in
the statement of the assignments of error and issues presented for review, it presents
absolutely no argument separately or otherwise in support of it. App.R. 16(A)(7)
                                                                               - 11 -


provides:
       {¶54} “(A) Brief of the appellant
       {¶55} “The appellant shall include in its brief, under the headings and in the
order indicated, all of the following:
       {¶56} “* * *
       {¶57} “(7) An argument containing the contentions of the appellant with
respect to each assignment of error presented for review and the reasons in support
of the contentions, with citations to the authorities, statutes, and parts of the record
on which appellant relies. The argument may be preceded by a summary.”
       {¶58} Furthermore, App.R. 12 governing determination and judgment on
appeal provides:
       {¶59} “(A) Determination
       {¶60} “* * *
       {¶61} “(2) The court may disregard an assignment of error presented for
review if the party raising it fails to identify in the record the error on which the
assignment of error is based or fails to argue the assignment separately in the brief,
as required under App.R. 16(A).”
       {¶62} Consequently, the court can disregard this assignment of error on the
basis of App.R. 16(A)(7) and 12(A)(2). See, also, Cincinnati Ins. Co. v. Schwerha, 7th
Dist. No. 04 MA 257, 2006-Ohio-3521, ¶¶41-42; Portsmouth v. Internatl. Assn. of Fire
Fighters, Loc. 512 (2000), 139 Ohio App.3d 621, 626, 744 N.E.2d 1263; Park v.
Ambrose (1993), 85 Ohio App.3d 179, 186, 619 N.E.2d 469; State v. Caldwell
(1992), 79 Ohio App.3d 667, 677, 607 N.E.2d 1096.
       {¶63} Appellate brief deficiencies aside, this assignment of error would still
fail. If there has been a breach of contract, Allied would be entitled to damages, not
an accounting. Allied does not dispute the amount that it agreed to pay for the
transformers and does not dispute the amount of the unpaid balance. As indicated
earlier, Allied views the unpaid balance as the damages it suffered from what it
perceived as Ohio Edison’s failure to perform the design-build agreement that it
                                                                                - 12 -


contends was reached at the April 21, 2006 meeting. Again, as the trial court found,
these were two separate agreements – the existence of one of which needs to be
decided by a jury.
      {¶64} Accordingly, Allied’s third assignment of error is without merit.
      {¶65} The judgment of the trial court is hereby affirmed.



Vukovich, J., concurs.

DeGenaro, J., concurs.
