Wayne Bullock v. Intermodal Transportation Services, Inc.
| Decision Date | 06 August 1986 |
| Docket Number | C-850720,86-LW-1804 |
| Parties | Wayne BULLOCK, Plaintiff-Appellant, v. INTERMODAL TRANSPORTATION SERVICES, INC., Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Civil Appeal from: Court of Common Pleas
Judgment Appealed from is: Affirmed.
David M. Kothman, Cincinnati, for plaintiff-appellant.
Cors Bassett, Kohlhepp, Halloran & Moran, Stephen S. Holmes and Robert J. Hollingsworth, of counsel, Cincinnati, for defendant-appellee.
This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Court of Common Pleas of Hamilton County, Ohio, the transcript of the proceedings, the two assignments of error the briefs and the arguments of counsel.
In this action for breach of a lease agreement Plaintiff-Appellant Wayne Bullock alleges that the trial court erred in granting summary judgment in favor of Defendant-Appellee Intermodal Transportation Services, Inc. (Intermodal) in two respects: the court failed to recognize that there were genuine issues of material fact concerning the existence of oral agreements supplemental to the contract between the parties, and the court misinterpreted the contract. We find no merit in either of these claims, and we overrule both assignments of error.
On June 24, 1982, Bullock and Intermodal entered into an agreement that Bullock, as an independent trucking contractor would lease a tractor to Intermodal, a freight carrier, for the purpose of hauling freight and would provide a driver. The contract provisions dealing with the duration of the agreement and the method of termination read as follows:
NOW, THEREFORE, it is hereby agreed that LESSOR-CONTRACTOR leases said equipment to LESSEE-CARRIER and this Agreement shall remain in force for a period of one year. Either party may terminate this Agreement after thirty (30) days from its effective date by written notice. This Agreement shall be automatically renewed for successive thirty (30) day periods unless either party hereto shall give to the other written notice of cancellation. T.d. 1 (Complaint, Exh. A).®1¯
By a written notice, which by its terms was to be effective as of February 7, 1983 (within the year of the contract), Intermodal canceled the lease agreement. T.d. 9 (Motion for Summary Judgment, Gamble Affidavit, Exh. B). The notice stated as the reason for termination the fact that Bullock had been advised on February 4 that, if he did not make his equipment available to Intermodal by February 6, the agreement would be canceled, but that despite the warning he had not made the tractor available.
Bullock filed a complaint against Intermodal, alleging breach of the lease agreement and of an oral agreement between the parties that the contract would only be terminated for good cause. After deposing Bullock and his wife, who served as bookkeeper for his trucking business, Intermodal moved for summary judgment, asserting that the contract was clear and unambiguous, no admissible evidence of supplemental oral agreements had been presented, and no breach had been demonstrated. Bullock responded with a memorandum to which was attached his affidavit. The trial court granted Intermodal's motion.
For the sake of clarity, we will address the appellant's second assignment of error first. Bullock alleges that summary judgment was improperly granted, because a genuine issue of material fact remained to be resolved; that is, whether Intermodal breached an oral agreement it had made with Bullock. We find no error in the summary judgment, because the oral agreements were not specifically alleged in the pleadings, and no competent evidence of their existence was before the court. In his complaint, Bullock alleged that an "understanding between the parties that the contract would not be terminated except for good cause" had been "incorporated" into the lease agreement. However, the only evidence presented about any oral agreement at all consisted of Bullock's hearsay testimony (explained below) that an agreed amount of time was to be allotted to enable a lessor to make repairs to a disabled tractor.®2¯
Bullock testified at his deposition to the existence of an agreement, which he later captioned "the 30/60/90 day rule," to the effect that a lessor had up to thirty days to make available to Intermodal equipment that had broken down, but additional thirty-day extensions could be obtained with the company's approval, up to a maximum of ninety days. T.d. 7-16. He stated that no company official had ever told him that the lease agreement could only be canceled for good cause but that rules such as the 30/60/90 day rule were the basis for his understanding that his services could not be summarily terminated. T.d. 7-15, 18. He admitted that he had never seen this rule set down in written form and that to his knowledge, there were no documents containing any version of such a policy, and he reaffirmed this position throughout the deposition. T.d. 7-16, 27-28, 52, 53, 54. He explained that he learned of this agreement from other truckers who leased equipment to Intermodal. T.d. 7-18.®3¯
Bullock testified that the reason he did not make his equipment available by February 6 as Intermodal requested was because it "had a rear end out," but he stated that it was repaired by the end of the month. T.d. 7-42. It is his assertion, therefore, that Intermodal violated the 30/60/90 day rule by canceling the lease because of his failure to make his tractor available.®4¯ However, the only evidence emerging from his testimony as to the existence of any agreement that such a rule would be applied to him consisted of Bullock's hearsay accounts of discussions in which other driver-lessors informed him that the company had agreed to this policy. Bullock himself had no firsthand knowledge of the execution of such an agreement nor did he personally enter into such an agreement with the company. Even if the statements of other drivers, as recounted by Bullock, could be viewed as establishing an agreement to which Bullock was a party, his testimony about those statements cannot serve as the foundation for a factual assertion, because it was based on inadmissible hearsay.
Bullock argues that his affidavit, which was attached to his memorandum opposing Intermodal's motion for summary judgment, supplied the necessary factual assertions of personal knowledge of the 30/60/90 day rule. In the affidavit, Bullock averred that he recalled seeing documents, which were prepared by Intermodal, that referred to the rule. This statement directly contradicts his own prior deposition testimony that he had never seen any such documents. "When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of any material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." Vvan T. Junkins & Associates v. U.S. Industries (C.A.11, 1984), 736 F.2d 656, 657. Only if the affiant eXplains sources of confusion that resulted in his or her inaccurate deposition testimony or reveals newly discovered evidence that alters his or her perception of circumstances that formed the basis of the deposition testimony may the inconsistent affidavit serve to raise factual disputes that preclude summary judgment. Miller v. A.H. Robins Co. (C.A.7, 1985), 766 F.2d 1102, 1104. See, also, Albertson v....
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