Ozerol v. Howard University, 86-1057.

• Decision Date: 11 August 1988
• Docket Number: No. 86-1057.,86-1057.
• Citation: 545 A.2d 638
• Parties: Nail H. OZEROL, Appellant, v. HOWARD UNIVERSITY, Appellee.
• Court: D.C. Court of Appeals

545 A.2d 638

Nail H. OZEROL, Appellant, v. HOWARD UNIVERSITY, Appellee.

No. 86-1057.

District of Columbia Court of Appeals.

Argued October 19, 1987.

Decided August 11, 1988.

John M. Clifford, with whom Stephen A. Trimble, Washington, D.C., was on the brief, for appellant.

Charles T. Duncan, with whom, Richard P. Thornell and Lisa B. Dickieson, Washington, D.C., were on the brief, for appellee.

Before ROGERS and STEADMAN, Associate Judges, and REILLY, Senior Judge.

STEADMAN, Associate Judge:

Appellant Ozerol is a former professor at Howard University ("Howard"). He alleges that Howard breached an oral agreement to give him tenure. The trial court ruled that the parol evidence rule precluded proof of such an oral agreement, since the parties had entered into a completely integrated subsequent written contract containing no such provision. We affirm.

I.

Ozerol is a specialist in the field of public health and international medicine. In 1980 he was a faculty member at the University of Illinois. Negotiations took place between Ozerol and Howard, culminating, according to Ozerol, in an oral agreement whereby Howard would appoint Ozerol to the faculty at the rank of associate professor with tenure. Before any written agreement had been executed, Ozerol moved to the District of Columbia and commenced to work at Howard.

In early 1981, Ozerol signed two appointment letters proffered by Howard. A personnel recommendation form and a justification sheet were attached to each letter. His appointment was stated to be as an assistant professor for a period ending, in one letter, on June 30, 1981, and, in the other, on September 21, 1981.¹ No mention was made of tenure or of any right to reappointment. The personnel recommendation forms contained an entry for an indication of "indefinite" status but the box was not checked on either form. In March 1981, Ozerol submitted a written request for promotion to associate professor² but no action was taken. Later in 1981, Ozerol signed a second, nearly identical set of letters with expiration dates of June 30, 1982 and September 23, 1982.³ Ozerol submitted another written request for promotion in March 1982.

In May 1982, Howard notified Ozerol of his termination, effective June 5, 1982. A year later, Ozerol filed the instant lawsuit, alleging that the University had breached the oral agreement to award him tenure and to promote him to Associate Professor.⁴

At the close of plaintiff's case and again at the close of all the evidence, Howard sought a directed verdict on the basis that only the terms of the written agreements should be considered. The motions were denied and the jury returned a verdict in Ozerol's favor. Howard thereupon moved for a judgment notwithstanding the verdict and, in the alternative, for a new trial, again asserting that evidence relating to the oral agreement should not have been presented to the jury. The trial court, reversing its prior position, ruled that "the written contract is fully integrated on both points [rank and tenure] and the jury should not have been permitted to consider the evidence of the conflicting oral promises." 113 Daily Wash.L.Rptr. 1049, 1055 (May 23, 1985) A new trial was granted. Id. The parties subsequently stipulated that with this ruling as the law of the case, any subsequent trial could only result in a directed verdict for Howard. Hence, a directed verdict in Howard's favor was entered and this appeal taken.

II.

The dispositive issue on this appeal is the application of the parol evidence rule.

A.

As a preliminary matter, Ozerol challenges Howard's right to raise this issue on appeal, since Howard did not object at the time testimony concerning the alleged oral agreement was introduced in plaintiff's case-in-chief. The trial court correctly ruled, on the facts of this case, that this failure did not preclude Howard from subsequently raising the issue. As early as its pretrial brief, Howard argued that Ozerol could not use any prior oral promises to vary the terms of the written contract. At the close of plaintiff's case, Howard moved for a directed verdict, asserting that the execution of the written agreements superceded any prior oral understandings, a motion that was renewed at the close of all the evidence. Although Ozerol argues that Howard did not squarely invoke the parol evidence rule as such, we agree with the trial court that the issue was sufficiently raised at that point. While the better practice would be to also object at the point the parol evidence is proffered, the majority rule is that the point can be effectively raised in a motion for a directed verdict. The underlying rationale is that the parol evidence rule is a matter of substantive law, not a mere rule of evidence. Farmers State Bank v. Keiser, 83 S.D. 354, 356, 159 N.W.2d 388, 390 (1968); Whitt v. Godwin, 205 Va. 797, 139 S.E.2d 841 (1965); Bushnell v. Elkins, 34 Wyo. 495, 245 P. 304 (1926); Mears v. Smith, 199 Mass. 319, 85 N.E. 165 (1908). See 1010 Potomac Assoc. v. Grocery Mfrs. of America, 485 A.2d 199, 210 (D.C. 1984); Annotation, Modern Status of Rules Governing Legal Effect of Failure to Object to Admission of Extrinsic Evidence Violative of Parol Evidence Rule, 81 A.L.R.3d 249 (1977).⁵

B.

Having concluded that the issue is properly before us, we turn to consider the application of the parol evidence rule to the case at hand. As relevant here, that rule provides that when parties to a contract have executed a completely integrated written agreement, it supersedes all other understandings between the parties. Thus, the writing itself is viewed as the expression of the parties' intent. RESTATEMENT (SECOND) OF CONTRACTS § 213 (1979).

A completely integrated agreement is one adopted by the parties as a complete and exclusive statement of the terms of the agreement. It is contrasted with a partially integrated agreement, where the writing represents the agreement of the parties with respect to the matters stated therein but where there may be additional consistent oral terms. Id. at § 210.

Whether an agreement is integrated ultimately depends upon the intent of the parties. Stamenich v. Markovic, 462 A.2d 452, 456 (D.C. 1983). Factors to be considered in ascertaining this intention are "the written contract, the conduct and language of the parties and the surrounding circumstances." Id. (citing Standley v. Egbert, 267 A.2d 365, 367 (D.C. 1970)). This determination, however, is made not by the jury but rather by the trial court as a question preliminary to the submission of any questions of interpretation to the jury. RESTATEMENT (SECOND) OF CONTRACTS § 210(3). As we explained in Luther Williams, Jr., Inc. v. Johnson, 229 A.2d 163 (D.C. 1967):

Whether a particular subject of negotiation is embodied by the writing depends wholly upon the intent of the parties thereto. . . .

This intent must be sought where always intent must be sought, namely, in the conduct and language of the parties and the surrounding circumstances. The document alone will not suffice. What it was intended to cover cannot be known till we know what there was to cover. The question being whether certain subjects of negotiation were intended to be covered, we must compare the writing and the negotiations before we can determine whether they were in fact covered. Thus the apparent paradox is committed of receiving proof of certain negotiations in order to determine whether to exclude them; and this doubtless has sometimes seemed to lower the rule to a quibble. But the paradox is apparent only. The explanation is that these alleged negotiations are received only provisionally. Although in form the witnesses may be allowed to recite the facts yet in truth the facts will be afterwards treated as immaterial and legally void, if the rule is held applicable. There is a preliminary question for the judge to decide as to the intent of the parties, and upon this he hears evidence on both sides; his decision here, pro or con, concerns merely this question preliminary to the ruling of law. If he decides that the transaction was covered by the writing, he does not decide that the excluded negotiations did not take place, but merely that if they did take place they are nevertheless legally immaterial. If he decides that the transaction was not intended to be covered by the writing, he does not decide that the negotiations did take place, but merely that if they did, they are legally effective, and he then leaves to the jury the determination of fact whether they did take place.

Id. at 165-66 (quoting 9 WIGMORE, EVIDENCE § 2430 (3d ed. 1940)) (emphasis in original).

Where the trial court makes a determination that an agreement is completely integrated, two results flow therefrom. First, no evidence may be introduced of prior (or contemporaneous) agreements or terms, whether consistent or inconsistent, within the scope of the written agreement. This is the classic parol evidence rule.⁶

Second, the meaning of the writing is a question for the trial court "unless the written language is not susceptible of a clear and definite undertaking, or unless there is fraud, duress or mutual mistake." Howard University v. Best, 484 A.2d 958, 966-67 (D.C. 1984) (citation omitted).⁷ Otherwise put, only if the trial court finds that a contract is ambiguous and that the evidence supports more than one reasonable interpretation does its interpretation becomes a question for the jury. Id.; Dodek v. CF 16 Corp., 537 A.2d 1086, 1092 (D.C. 1988).⁸ A ground of confusion sometimes arises because of a failure to distinguish clearly between direct evidence as to what a particular party intended the language to mean, a subjective question, and evidence of the general situation, the relations of the parties, the subject matter of the transaction, preliminary negotiations and statements made therein, usages of trade, and the course of dealing between the parties, all of which may be useful aids in...