COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68386 and 68498 425 LIMITED PARTNERSHIP : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION WESTON, INC. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 7, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-236586 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JEFFREY M. EMBLETON (#0006480) ANTHONY J. COYNE (#0059329) ELI MANOS (#0006468) MANSOUR, GAVIN, GERLACK & MANOS CO., L.P.A. 55 Public Square - Suite 2150 Cleveland, Ohio 44113-1994 For Defendant-Appellant: HAROLD POLLOCK (#0009271) BLAKE DICKSON (#0059329) HAROLD POLLOCK CO., L.P.A. 1701 Terminal Tower Cleveland, Ohio 44113 DAVID A. SCHAEFER (#0014297) McCARTHY, LEBIT, CRYSTAL and HAIMAN CO., L.P.A. 1800 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115 SPELLACY, C.J.: In case number 68386, defendant-appellant/cross-appellee Weston, Inc. ("Weston") appeals from the grant of plaintiff- appellee/cross-appellant 425 Limited Partnership's ("425") motion for a new trial. 425 filed a suit for breach of contract against Weston. In case number 68498, 425 appeals the trial court's refusal to determine as a matter of law that Weston breached the contract and then direct a verdict on the issue of liability for 425. The cases were consolidated upon appeal. Weston assigns the following errors for review: I. THE TRIAL COURT'S ORDER GRANTING APPELLEES' MOTION FOR NEW TRIAL WAS DEFECTIVE BECAUSE THE COURT FAILED TO SPECIFY IN WRITING THE GROUNDS UPON WHICH THE NEW TRIAL WAS GRANTED. II. THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION FOR NEW TRIAL WHERE SAID MOTION WAS BASED ON INCOMPETENT JUROR AFFIDAVITS WHICH APPELLEES OBTAINED IN VIOLATION OF RULE 606(B) OF THE OHIO RULES OF EVIDENCE. III. THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION FOR NEW TRIAL AND OVERRULING APPEL- LANTS' MOTION TO STRIKE JURY AFFIDAVITS WHERE THOSE AFFIDAVITS WERE OBTAINED IN VIOLATION OF LOCAL RULE 22 AND THE TRIAL COURT'S EXPRESS ORDER. IV. THE TRIAL COURT ERRED IN GRANTING A NEW TRIAL BECAUSE APPELLEES DID NOT CHALLENGE ALLEGED INCONSISTENT INTERROGATORIES IN A TIMELY FASHION. V. THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION FOR NEW TRIAL WHERE THE ALLEGED INCON- SISTENT INTERROGATORY ANSWERS WERE MERELY A MATTER OF FORM. - 3 - VI. THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION FOR NEW TRIAL WHERE THE MANIFEST WEIGHT OF THE EVIDENCE WAS (sic) CLEARLY FAVORED APPELLANT. VII. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR DIRECTED VERDICT ON COUNT II OF THE AMENDED COMPLAINT WHERE THE CLAIMS OF APPELLEES LNG AND LAKESIDE PLACE WERE BASED UPON AN UNPERMITTED ASSIGNMENT OF RIGHTS IN THE LEASE, AND WHERE APPELLEES HAD ADMITTED IN THEIR AMENDED COMPLAINT AND OTHER DOCUMENTS FILED IN THE TRIAL COURT THAT THE TRANSFER WAS AN ASSIGNMENT RATHER THAN A LICENSE. 425 raises the following assignment of error on cross-appeal: THE COURT ERRED IN REFUSING TO DETERMINE AS A MATTER OF LAW THAT THE DEFENDANT WESTON, INC. HAD BREACHED THE LEASE AND IN DECLINING TO DIRECT A VERDICT ON THE ISSUE OF LIABILITY FOR THE PLAINTIFF 425 LIMITED PARTNERSHIP. Finding neither appeal to have merit, the judgment of the trial court is affirmed. I. On March 1, 1987, the 425 Company, Inc. was formed by Lee A. Chilcote and Willis Boyer in order to investigate the feasibility of purchasing and renovating a building located at 425 Lakeside Avenue in the Warehouse District of Cleveland. The 425 Company secured an option to purchase the building which it planned to convert to residential apartments. A primary concern was to find available parking for prospective tenants adjacent to the building. The 425 Company approached Weston which owned a parking lot at 1242 West 3rd Street, kitty-cornered from the 425 building. The 425 Company - 4 - proposed a plan whereby it would lease the lot from Weston and construct a garage. Land or ground rent would be paid to Weston. The parties failed to reach an agreement on this proposition. Weston indicated it would be willing to construct a parking garage and lease spaces to the 425 Company. Weston's attorney prepared a draft lease in November of 1987. The lease was redrafted by Chilcote. A series of drafts were prepared by Chilcote as negotiations continued. On December 1, 1987, the 425 Limited Partnership was formed. It was a successor to the 425 Company, Inc. It purchased the 425 building on January 7, 1988. The general partners were Chilcote and Boyer. On March 24, 1988, the parties executed a document which was titled as a lease. The parties dispute whether this actually was a lease agreement or a non-binding, tentative agreement. Although the agreement referred to four exhibits, only one, Exhibit A, was attached at the time of execution. Exhibit A was a description of the premises to be leased, or the parking area within the proposed garage where 425 would park. Exhibit B was to be a legal description of the property at 1242 West 3rd Street. Exhibit C was to describe an area to which Weston could relocate 425. Exhibit D was to be a legal description of the temporary premises which 425 could take possession of rent free if Weston failed to deliver possession of the premises by the occupancy date. 425 and Weston now dispute the location of these temporary premises. 425 states - 5 - the parties agreed that the 1242 West 3rd Street lot was the temporary premises while Weston asserts another parking lot located at West 3rd and St. Clair Avenue was to be the temporary premises. The remaining exhibits were prepared later by Chilcote. Exhibit D denominated a legal description of 1242 West 3rd Street. 425 agreed to lease seventy-five to one hundred fifty spaces in the parking garage. 425 would pay a parking rate equal to that paid by Weston's other reserved monthly parkers. If Weston had less than twenty-five reserved monthly parkers, 425 would pay a rate which was the average of the three most comparable privately- owned parking facilities in closest proximity to the parking garage. These other facilities were not determined at the time the agreement was signed. The lease could not be assigned, in whole or part, by 425 without first obtaining Weston's prior written consent. The only exceptions to this clause were assignments to the apartment tenants, 425's lender, and a purchaser of the 425 property. 425 was permitted to use the space by itself, its tenants, or any licensee. The latest occupancy date was to be June 30, 1990. 425 was required to give notice of occupancy at the latest by June 30, 1989. Along with the notice of the occupancy date, 425 was required to provide Weston with a letter of credit in the amount of $100,000. The garage was to be built within twelve months after the notice of occupancy was given. - 6 - Upon execution of the document, Weston was required to provide 425 with schematic design drawings for 425's approval. After 425 approved the design in writing and gave the occupancy notice and letter of credit, Weston was to proceed with design development plans and construction. 425 gave Weston its notice of occupancy and letter of credit on June 28, 1989. An occupancy date of June 30, 1990, was designated. Weston retained an architect in the latter part of 1989 and did provide 425 with preliminary designs for the parking garage. A memorandum of lease was filed with the Cuyahoga County Recorder on August 31, 1989. Chilcote and Boyer formed the LNG Limited Partnership in order to purchase the L.N. Gross Building located at 323 Lakeside Avenue. An agreement to purchase the building was signed on March 18, 1988, before the lease document with Weston was signed. The building actually was purchased in February of the following year. 425 and LNG entered into an agreement whereby 425 would license the use of up to fifty of its leased spaces in the parking garage to LNG. The parties attempted to secure financing for their projects but neither actually was successful in doing to. A series of letters, communications, and meetings took place between the par- ties concerning the progress or lack of progress of construction of the garage. In June of 1990, Weston sent a letter to 425 stating its development plans were on hold. Weston considered the lease to have lapsed because 425 had not proceeded with the apartments. 425 - 7 - responded with a renewed letter of credit and stated it expected Weston to perform under the lease. Then, between 1990 and 1992, a number of discussions took place regarding 425 purchasing the property but an agreement was never reached. Finally, on July 27, 1992, 425 sent a latter to Weston stating it wanted to take possession of the lot as provided for under the temporary premises clause of the lease. Weston refused to do so. On July 17, 1993, 425 sold the building to another developer. On August 5, 1992, 425 filed a complaint against Weston for breach of contract. The complaint later was amended to add affiliated companies including LNG. After a three-week trial, the jury returned a general verdict for Weston. In answering inter- rogatories, the jury found Weston had breached its contract with 425 and that this breach directly and proximately caused damages to 425. Outside of the presence of counsel or the parties, the trial court recommended to the jury that it change its answers to the interrogatories to be consistent with the general verdict. Most of the jurors crossed out their names and wrote "no" after their names. The jury was polled before it was dismissed. No objection was given by 425 to the verdict. After the trial, two of the jurors contacted the counsel of 425. The attorneys first obtained the trial court's permission and then spoke to the jurors. 425 filed a motion for a new trial and attached the affidavits of the jurors in which they stated that one of their fellow jurors had lobbied for Weston during the trial and - 8 - another spoke encouraging words to Weston's attorney. Both stated the trial judge advised the jury to change their interrogatory answers. The trial court granted 425's motion for a new trial. The trial court issued a journal entry in which it stated the motion was granted on the grounds the verdict was not sustained by the manifest weight of the evidence; the court instructed the jury to alter its interrogatory answers without notice to counsel or the parties; jury misconduct; and the inconsistent verdict. II. In its first assignment of error, Weston argues the trial court's order granting the new trial was defective because it failed to specify in the writing the grounds upon which the motion was granted. Civ.R. 59(A) provides that the court shall specify in writing the grounds upon which it grants a new trial. The basis for the new trial must be specifically stated in order to allow a reviewing court to determine whether the trial court abused its discretion in ordering a new trial. Antal v. Olde Worlde Products, Inc. (1984), 9 Ohio St.3d 144, syllabus. The trial court issued a journal entry in which it stated the grounds upon which it was granting 425's motion for a new trial. The journal entry fulfills the requirements of Civ.R. 59(A). Weston's first assignment of error lacks merit. - 9 - III. In its fifth assignment, Weston contends the trial court erred in granting a new trial because the inconsistent interrogatory answers were merely a matter of form. Weston argues the trial court's suggestion that the jury change its answers was proper as it could have considered the error to be one of form. A trial court is afforded wide discretion in determining the propriety of a new trial. Bell v. Mt. Sinai Med. Ctr. (1994), 95 Ohio App.3d 590. The term "abuse of discretion" connotes more than an error of law or judgment. It implies that the court's attitude was unreasonable, arbitrary or unconscionable. Id. An appellate court may reverse the trial court's decision only upon a finding of an abuse of discretion. The reviewing court is not to substitute its judgment for that of the trial court. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679, 690. In State v. Schiebel (1990), 55 Ohio St.3d 71, the court found that juror affidavits were admissible to support an allegation that improper ex parte communications occurred between a member of the court staff and the jury. Therefore, the juror affidavits are admissible in the instant case regarding the trial court's ex parte communication regarding the verdict. In Bostic v. Connor (1988), 37 Ohio St.3d 144, the court noted that, generally, any communication between the judge and jury that takes place outside of the presence of the parties is error which may warrant the ordering of a new trial. The cases finding - 10 - prejudice are ones in which the jury's verdict might have been influenced by the judge's response. In the instant case, the trial judge told the jurors to change the answers to the interrogatories. This affected the jury's verdict and prejudiced 425. Further, in Job v. Cleveland Dance Ctr. (1989), 62 Ohio App.3d 678, this court found error when the court instructed the jury to alter its response to the interrogatories to be consistent with the verdict instead of informing it that it had to reconcile the conflict. The trial court's ex parte communication to the jury instructing the jury to change its answers was prejudicial and error. The trial court was correct in granting a new trial on this ground. Weston's fifth assignment of error is overruled. IV. Because of the determination of the fifth assignment of error, it is not necessary to determine whether the trial court's other grounds for granting a new trial also were proper. Weston's second, third, fourth, and sixth assignments of error are moot. V. In 425's assignment of error, it argues the trial court erred in refusing to determine as a matter of law that Weston breached the lease. Weston contends the trial court should have directed a verdict on the issue of liability in its favor. - 11 - A motion for directed verdict does not present a question of fact or raise factual issues, but instead presents a question of law, even though in deciding such a motion it is necessary to review and consider the evidence. Ruta v. Breckenridge-Remy Co.(1982), 69 Ohio St.2d 66, paragraph one of the syllabus. In deciding a motion for directed verdict, the court must, after construing the evidence most strongly in favor of the nonmoving party, determine whether reasonable minds could come but to one conclusion which is adverse to the nonmoving party. Civ.R. 50(A); Strother v. Hutchinson (1981), 67 Ohio St.2d 282. It is the duty of a trial court to submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue, or, conversely, to withhold an essential issue from the jury when there is not sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue. O'Day v. Webb (1972), 92 Ohio St.2d 215, paragraph four of the syllabus. When a contract is clear and unambiguous, its construction and effect are a matter of law. Mills v. Colonial Life & Acc. Ins. Co. (1987), 35 Ohio App.3d 29. "[W]hen there is no dispute as to what the contract is, the construction and effect of the contract are matters for the court." Indus. Comm. v. Henderson (1932), 43 Ohio App.20, 23. Conversely, if there is a genuine dispute over the meaning of the terms of a contract, the construction and effect of the contract are a matter for resolution by the trier of fact. Id. - 12 - 425 argues the lease was integrated and provided that Weston must provide temporary premises if it failed to perform under the contract. 425 contends the conflict over the identity of the temporary premises is immaterial to Weston's obligation. Also, 425 asserts its approval of the parking garage plans was only inci- dental to the agreement. The evidence at trial revealed three of the four exhibits referred to in the document were not attached at the time of execution. One of those exhibits identified the location of the temporary premises. There was a dispute over the meaning of the assignment clause and the mention of a license in the agreement. There also were disputes regarding what features were to be a part of the garage and what rate 425 would pay. All of the issues were genuine disputes over material terms of the agreement. There also was conflicting evidence as to whether there was a meeting of the minds between the parties. If there was no meeting of the minds, there would be no enforceable contract. Therefore, the trial court did not err in allowing the jury to resolve the issues of the existence, construction and effect of the contract. 425's assignment of error is overruled. VI. Weston's seventh assignment of error relates to the assignment issue. Before this issue can be resolved, it first must be determined that there was an enforceable contract. Because of the - 13 - resolution of 425's assignment of error, Weston's seventh assignment of error is moot. Judgment affirmed. - 14 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J. and JOHN T. PATTON, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .