[Cite as Cook & Son-Pallay, Inc. v. Hillman, 2014-Ohio-5444.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



Cook & Son-Pallay, Inc.,                              :

                Plaintiff-Appellee,                   :
                                                                      No. 14AP-448
v.                                                    :            (M.C. No. 13CVF-34465)

Steven E. Hillman,                                    :          (REGULAR CALENDAR)

                Defendant-Appellant.                  :



                                        D E C I S I O N

                                   Rendered on December 11, 2014


                Stephen A. Moyer, for appellee.

                Steven E. Hillman, for appellant.

                       APPEAL from the Franklin County Municipal Court

SADLER, P.J.
        {¶ 1} Defendant-appellant, Steven E. Hillman, appeals from a judgment of the
Franklin County Municipal Court granting summary judgment in favor of plaintiff-
appellee, Cook & Son-Pallay, Inc. ("Pallay").
I. FACTUAL AND PROCEDURAL BACKGROUND
        {¶ 2} Pallay is a funeral home and crematory that provided funeral services for
appellant's mother-in-law, Venetia H. Francis.                  Pallay and appellant executed an
agreement entitled "Authorization for the Services of: Venetia H. Francis" and bearing
notations for the date of death (April 17, 2011) and "Date of Contract" (April 20, 2011).
The document contains a series of preprinted boxes for itemization of charges associated
with the funeral services. One rubric under the category "Cash Advances" states as
follows: "Obituaries (to be added)." There is no amount stated in the associated price box
No. 14AP-448                                                                              2


for this item, but the notation "to be added" is circled. Various other funeral charges
appear above a line labeled "subtotal" that gives the figure $3,704.12. Below this appears
a line titled "Additions," followed by the handwritten notation "2 obits" and the amount of
$386.05. The line below this reflects a total charge of $4,090.29.1 Argument presented
by Pallay on appeal makes clear that, while the circled "to be added" reference for
obituaries is original, the notation "2 obits" and associated charge was added after
execution of the contract by the parties. This contract is signed by Daniel W. Pallay as
funeral director on behalf of appellee and appellant on his own behalf.
          {¶ 3} Pallay did not receive payment for any of these funeral services.       On
October 23, 2013, Pallay filed a complaint in municipal court alleging claims for breach of
contract, unjust enrichment, and failure to pay an account stated. Appellant answered,
admitting the existence of the contract and that funeral services were provided, but
otherwise responded with a general denial. Appellant offered affirmative defenses of
failure to join as a necessary party and failure to mitigate damages.
          {¶ 4} Pallay moved for summary judgment, supported by a copy of the contract
and the affidavit of Daniel W. Pallay, who averred that he personally oversaw embalming
and funeral services for the deceased, witnessed appellant execute the contract, received
no complaints from appellant regarding the funeral services provided, and received no
payment in connection therewith. Appellant opposed summary judgment with his own
affidavit averring that he had agreed only to be responsible for those funeral expenses that
were not paid by the decedent's estate, that Pallay had failed to mitigate its damages, and
that the contract copy submitted with the complaint and in support of summary judgment
had been materially altered by addition of the obituary price term and thus did not reflect
the document executed by appellant.
II. ASSIGNMENT OF ERROR
          {¶ 5} The trial court granted summary judgment for Pallay, and appellant has
timely appealed, bringing the following sole assignment of error:
                   The Trial Court erred [when] it granted Appellee's Motion for
                   Summary Judgment.


1   A minor computational error as correct amount is $4,090.17.
No. 14AP-448                                                                              3


       {¶ 6} We initially note that this matter was decided in the trial court by summary
judgment, which, under Civ.R. 56(C), may be granted only when there remains no
genuine issue of material fact, the moving party is entitled to judgment as a matter of law,
and reasonable minds can come to but one conclusion, that conclusion being adverse to
the party opposing the motion. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio
St.3d 621, 629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64
(1978). Additionally, a moving party cannot discharge its burden under Civ.R. 56 simply
by making conclusory assertions that the nonmoving party has no evidence to prove its
case. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Rather, the moving party must
point to some evidence that affirmatively demonstrates that the nonmoving party has no
evidence to support each element of the stated claims. Id. An appellate court's review of
summary judgment is de novo. Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579,
588 (8th Dist.1994); Bard v. Soc. Natl. Bank, n.k.a. KeyBank, 10th Dist. No. 97APE11-
1497 (Sept. 10, 1998). Thus, we conduct an independent review of the record and stand in
the shoes of the trial court.    Jones v. Shelly Co., 106 Ohio App.3d 440, 445 (5th
Dist.1995). As such, we have the authority to overrule a trial court's judgment if the
record does not support any of the grounds raised by the movant, even if the trial court
failed to consider those grounds. Bard.
       {¶ 7} In order to establish a claim for breach of contract, the plaintiff must show
the existence of a contract, performance by the plaintiff under the terms of that contract,
breach by the defendant, and damage or loss to the plaintiff. Powell v. Grant Med. Ctr.,
148 Ohio App.3d 1, 10 (10th Dist.2002). The construction of a written contract is a matter
of law for the trial court to determine. 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, we
review such issues de novo on appeal. Sauer v. Crews, 10th Dist. No. 12AP-320, 2012-
Ohio-6257, ¶ 11. Our judicial examination of the contract begins with the fundamental
objective of ascertaining and giving effect to the intent of the parties at the time they
executed the agreement. N. Coast Premier Soccer, LLC v. Ohio Dept. of Transp., 10th
Dist. No. 12AP-589 (Apr. 25, 2013); 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
No. 14AP-448                                                                             4


the language they chose to employ in the agreement." Kelly v. Med. Life Ins. Co., 31 Ohio
St.3d 130 (1987), paragraph one of the syllabus.
      {¶ 8} If a contract is not ambiguous, it must be enforced as written. Key Bank
Natl. Assn. v. Columbus Campus, LLC, 10th Dist. No. 11AP-920, 2013-Ohio-1243, ¶ 27.
"Ambiguity exists only when a provision at issue is susceptible of more than one
reasonable interpretation." Lager v. Miller-Gonzales, 120 Ohio St.3d 47, 2008-Ohio-
4838, ¶ 16. Under the parole evidence rule, a writing intended by the parties to represent
the final and comprehensive embodiment of their agreement cannot be modified by
evidence or earlier or contemporaneous agreements that would add to, vary or contradict
the contract. Bellman v. Am. Internatl. Group, 113 Ohio St.3d 323, 2007-Ohio-2071, ¶ 7.
Parole evidence may be admitted, however, when an ambiguity exists for purposes of
clarifying the contractual intent of the parties. Yoder v. Thorpe, 10th Dist No. 07AP-225,
2007-Ohio-5866.
      {¶ 9} It is not necessary to resort to parole evidence in this case because neither
party disputes that the language of the contract is clear and unambiguous. They simply
cannot agree on whether it has binding effect.
      {¶ 10} We find that the language chosen by the parties constitutes the
unambiguous expression of a minor open price term in the contract, with compensation
for all funeral services fixed except for a variable term representing the as-yet
unascertainable cost of placing obituaries in local news outlets. Such a contract with an
open price term is enforceable when the parties clearly manifest an intention to be bound.
Malaco Constr., Inc. v. Jones, 10th Dist. No. 94APE10-1466 (Aug. 24, 1995), citing
Oglebay Norton Co. v. Armco, 52 Ohio St.3d 232, 236 (1990).
      {¶ 11} Courts will undertake a two-step procedure to determine whether the
parties have reasonably filled the open price term. Malaco. First, the evidence must
establish whether the parties intended to be bound by the terms of the contract and
subsequently fill the open price term. Second, the evidence must establish that the party
attempting to enforce the contract filled the open price term with a reasonable price under
the principles set forth in 1 Restatement of the Law 2d, Contracts, Section 33, Comment
A, 92 (1981), and by analogy with sale of goods situations under R.C. 1302.18(A) (UCC
Section 2-305). Malaco.
No. 14AP-448                                                                             5


         {¶ 12} Appellant does not dispute that he entered into a contract with Pallay for
funeral services. Nor does he assert that the open price term in that contract was
unreasonably filled under Pallay's final billing. Appellant asserts instead that, through
alteration of the original contract, Pallay somehow voided the entire contract when it
inserted the cost of obituaries as an additional amount below the original subtotal.
Appellant also asserts that, outside the express terms of the contract, he agreed to the
contract only on the basis that Pallay would first seek to recover the contracted funeral
expenses from the estate of the decedent and that Pallay has failed to mitigate its damages
by failing to first seek recovery from the estate rather than from appellant directly.
         {¶ 13} Appellant presents no legal authority for the proposition that a party to a
contract has an implied duty to mitigate the primary obligor's cost of performance by first
seeking payment from non-party sources that are not specified in the contract. This
proposition lacks both legal support and intuitive appeal. Moreover, to accept appellant's
argument impermissibly calls for introduction of parole evidence to modify the clear and
unambiguous contractual language chosen by the parties. Bellman.
         {¶ 14} Nor do we find persuasive appellant's assertion that by filling the open
obituary cost price term on the original contractual document, Pallay voided the entire
contractual agreement. The notation of the obituary cost under additional amounts does
not conflict with the express intent of the parties to reserve this price term for later
determination and gives no basis to vacate the entire agreement.
         {¶ 15} For the above stated reasons, we overrule appellant's sole assignment of
error.
III. CONCLUSION
         {¶ 16} For the foregoing reasons, we find that the Franklin County Municipal
Court did not err in finding there remained no genuine issue of material fact and properly
granted summary judgment in favor of appellee.           Having overruled appellant's sole
assignment of error, the judgment of the Franklin County Municipal Court is affirmed.
                                                                         Judgment affirmed.

                           CONNOR and DORRIAN, JJ., concur.
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