Dick Sherman Disposal Co., Inc. v. Village Square Apartments, 86-LW-3252

• Decision Date: 30 October 1986
• Docket Number: CA-3195,86-LW-3252
• Parties: DICK SHERMAN DISPOSAL CO., INC., Plaintiff-Appellee, v. VILLAGE SQUARE APARTMENTS, Defendant-Appellant.
• Court: Ohio Court of Appeals

DICK SHERMAN DISPOSAL CO., INC. Plaintiff-Appellee, v. VILLAGE SQUARE APARTMENTS Defendant-Appellant.

No. CA-3195.

86-LW-3252 (5th)

Court of Appeals of Ohio, Fifth District Licking

October 30, 1986

Civil Appeal from the Licking County Municipal Court Case No 85-CV-F-244

Cindy Ripko, Newark, for plaintiff-appellee.

C. Bernard Brush, Pataskala, for defendant-appellant.

OPINION

WISE Judge.

This is an appeal from the judgment of the Licking County Municipal Court granting judgment to plaintiff-appellee, Dick Sherman Disposal, Co., Inc. (appellee), and against the defendant-appellant, Village Square Apartments (appellant), in the amount of $1,820 plus costs. Appellant sets forth the following five assignments of error:

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED IN ALLOWING PLAINTIFF-APPELLEE TO INTRODUCE PAROL EVIDENCE TO EXPLAIN THE MEANING OF A TERM IN THE WRITTEN CONTRACT.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED IN ALLOWING THE INTERPRETATION OF THE LENGTH OF TERM OF THE CONTRACT TO GO TO THE JURY.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED IN AWARDING JUDGMENT AGAINST DEFENDANT-APPELLANT BASED ON THE JURY'S FINDING OF A TWO-YEAR CONTRACT.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTIONS TO SET ASIDE THE JUDGMENT AND VERDICT AND TO AWARD JUDGMENT NOTWITHSTANDING THE VERDICT.

ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRED IN AWARDING COSTS OF SUIT AGAINST DEFENDANT-APPELLANT.

However, appellant briefs three arguments: 1) the contract between the parties cannot be changed by parol evidence; 2) the words appearing under special instructions of the contract are plain, clear, concise and unambiguous; and 3) appellant's motion for judgment notwithstanding the verdict should be granted.

We overrule all five assignments of error and affirm the judgment of the trial court. We do so for the following reasons.

The parties to this action had executed a contract for trash removal. The issue presented was whether or not the contract was a one-year contract, renewable year-to-year, or whether the term of the contract was for two years.

The appellant alleged the contract was a one-year contract, renewable year-to-year, while the appellee alleged the contract was for two years. The language of the contract pertinent to the resolution of the issue involved in this law suit consisted, inter alia, of the following printed words under the bold faced legend.

TERMS AND CONDITIONS

TERMS: The agreement shall extend for one (1) year from the effective date of service, and shall be automatically renewed from year to year unless either party gives written notice of termination at least thirty (30) days prior to the annual expiration date.

MISCELLANEOUS: Under special instructions, on the reverse side of the agreement, the typed or written language supersedes the printed terms and conditions.

On the reverse side of the printed contract form, there appears, inter alia, a large space, blank, except for the printed words:

SPECIAL INSTRUCTIONS.

[The following type-written words were added]

GUARANTEED PRICE FOR A PERIOD OF TWO YEARS.

The trial court submitted to the jury the issue of whether or not the contract was for one or for two years. The jury answered a specific interrogatory that the contract was for two years and returned a verdict for appellee in the amount of $1,820. Appellant argues that the contract was clear and unambiguous, and that it was error for the trial court to permit introduction of extrinsic parol evidence to vary the terms of the written instrument. We agree with the appellant that it is error to admit parol evidence to vary or contradict a clear and unambiguous agreement. Charles A. Burton, Inc. v. Durkee (1952), 158 Ohio St. 313; Florence v. Tri-State Savings & Loan Co. (1974), 68 O.O.2d 146.

In the case at bar, it is clear and unequivocal that the MISCELLANEOUS clause in the contract mandates that the typed or written language contained under SPECIAL INSTRUCTIONS supersedes the printed terms and conditions. Therefore, the crux of this action is the language contained in the SPECIAL INSTRUCTIONS, i.e.: GUARANTEED PRICE FOR A PERIOD OF TWO YEARS.

The trial court posed the question whether or not that phrase pertained only to price or whether it pertained to both price and length of term. The trial court found that the language is reasonably:

susceptible to two different interpretations and as such is placed in controversy to be factually resolved.

Consequently, it is well settled that parol evidence can be used to explain such...