COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69315 PROGRESSIVE BROTHERS : CONSTRUCTION CO. : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION BOARD OF COUNTY COMMISSIONERS : CUYAHOGA COUNTY : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 4, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-270916 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: BETH-ANNE CHANDLER GARY COOK Cook, Riley, Smith Co. 940 Rockefeller Bldg. 614 Superior Avenue, N.W. Cleveland, Ohio 44113 For Defendant-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor TIMOTHY J. KOLLIN Assistant Prosecuting Attorney Courts Tower - Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 3 - O'DONNELL, J.: Progressive Brothers Construction Co., a general contractor, appeals the trial court's verdict in favor of Cuyahoga County denying its $40,492.14 claim for extras on its contract to construct office space for the Clerk of Courts in the new jail building. Progressive Brothers entered a $1.2 million contract with Cuyahoga County to construct office space for the Clerk of Courts as part of the county jail expansion project. During the project, Progressive provided the following: heat when the temperature fell below 50 degrees and a crew to perform twenty- four hour fire-watch as required by the City of Cleveland Fire Code; it also salvaged granite removed from the building, re- augured cast piles to anchor the foundations after the discovery of obstructions, and re-keyed all locks on all doors in the premises. Because the written contract did not specifically include these services, Progressive submitted a $40,492.14 statement claiming them as extras, but Jim Stacy, the project director, denied payment. On April 15, 1992, David Morrow, President of Progressive, and his lawyer, met with Jim Stacy and others, in an effort to obtain the final $58,965.69 payment due on the $1.2 million contract. - 4 - At this meeting, Morrow signed separate release forms on each of the claimed extra items. Also, in accordance with the contract, Morrow signed a waiver of lien document which the county demanded under the contract before making final payment to Progressive. However, Morrow inserted the word "not" into the waiver so that it read, "The undersigned warrants and covenants that he has not paid in full for all work performed, services rendered and materials furnished *** by any sub-contractor, *** and there are no outstanding claims *** for said job." (Emphasis added.) When the county realized the lien waiver was insufficient for payment, it sent Progressive another waiver form. The letter acknowledged that it would keep its commitment to issue the $58,965.69 final payment within two weeks, when it received a signed waiver as required by the contract. Instead of returning the waiver, Progressive stated it "withdraws all signed documents dated April 15, 1992, *** because the County *** did not release funds as promised ***." Because Progressive did not submit a lien waiver as required by the contract, the county did not pay Progressive the $58,965.69 balance on the contract. Thereafter, Progressive filed an action in the U.S. District Court bankruptcy division and the court subsequently ordered the 1 county to release all contract funds with respect to work 1 The court defined contract funds as "any and all retainages, earned and unearned funds, and any and all additional monies, through change order or any other source whatsoever on - 5 - performed by Progressive directly to Buckeye Union Insurance Co., its surety, and in compliance with that order, the county paid Buckeye $58,965.69 on November 23, 1993. Nothing in the record before us demonstrates any appeal or challenge by any party regarding this payment by the county. Six months later, Progressive filed this suit against the county in Common Pleas Court seeking payment for the contract extras and interest on the money paid to Buckeye. After a bench trial, the trial court denied Progressive's claims. Progressive now appeals assigning two errors for our review. Because they present a common basis for our review, we shall consider them together. I. THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE EVIDENCE PROVES APPELLANT REJECTED APPELLEES FINAL WAIVER OF LIEN AND RELEASE AND IS ENTITLED TO AN AMOUNT OF $40,492.14. II. THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE EVIDENCE SHOWS APPELLANT IS ENTITLED TO THE INTEREST WHICH ACCRUED ON THE MONEY HELD IN ESCROW BY APPELLEE FOR FINAL PAYMENT TO APPELLANT. Progressive argues that the verdict of the trial court is against the manifest weight of the evidence because it withdrew the releases on the contract extras, and also claims interest on the $58,965.69 paid to its surety. the Projects." - 6 - The county, on the other hand, contends that the trial court's judgment is supported by the manifest weight of the evidence because Progressive not only released its claim for contract extras, but also, never delivered the required lien waiver to obligate the county to make final payment to Progressive. The county also urges that since the U.S. Bankruptcy Court ordered all funds due Progressive to be paid to Buckeye Insurance, its surety, any claims for deficiency in that payment belong to Buckeye not Progressive. The issue, then, presented for our review, is whether the trial court's judgment rendered in favor of the county, on both the claimed extras and the interest, is against the manifest weight of the evidence. In C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, the Ohio Supreme Court explained "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." (Citations omitted.) Therefore, we will review whether there is competent, credible evidence to support the trial court's judgment in this case. On the issue of the claimed contract extras, we note at the outset that "[c]ommon words appearing in a written instrument will be given their ordinary meaning unless a manifest absurdity - 7 - results, or unless some other meaning is clearly evidenced from the face or overall contents of the instrument." Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, paragraph two of the syllabus. Furthermore, "where the terms in an existing contract are clear and unambiguous, this court cannot in effect create a new contract by finding an intent not expressed in the clear language employed by the parties." Id. at 246. (Citations omitted.) This presumption that the intent of the parties resides in the language of the contract also operates to prevent a party from seeking to change the meaning of a contract by introducing extrinsic evidence. As the Supreme Court explained in Shifrin v. Forest City Ent., Inc. (1992), 64 Ohio St.3d 635, 638, "If no ambiguity appears on the face of the instrument, parol evidence cannot be considered in an effort to demonstrate such an ambiguity." In this case, the releases signed by David Morrow as President of Progressive Brothers Construction Co., in the presence of his counsel, discharged any claim Progressive had against the county for contract extras. There is no language in these releases which makes them contingent upon any other contract, nor any evidence to suggest they are other than what they purport to be -- releases of claims. Accordingly, we find these documents extinguished Progressive's claims for these items. - 8 - Regarding Progressive's claim for interest on the $58,965.69 which the county paid to Buckeye pursuant to an order of the Bankruptcy Court, we note that Section 4.43 of the contract provides for final completion and final payment. Subsection 4.43.2 provides, in pertinent part: Neither the final payment nor any remaining retained percentage shall become due until Trade Contractor has submitted to Construction Manager and Construction Manager has approved: 4.43.2.1 An affidavit that all payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which Owner or his property might in anyway be responsible, have been paid or otherwise satisfied; * * * 4.43.2.3 If required by Construction Manager, other data establishing payment or satisfaction of all such obligations, such as receipts, releases and waivers or releases of liens arising out of the Contract Documents, * * *. Because Progressive never submitted the required documentation which was the lien waiver, the county never became obligated to make a final payment to Progressive under the contract. Hence, it could not owe interest if it never became obligated to pay the principal sum. We also recognize that when Progressive filed for bankruptcy, the U.S. District Court assumed exclusive jurisdiction over all of Progressive's property pursuant to 28 U.S.C. 1334(e) which provides: - 9 - The district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction of all of the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate. In accordance with its jurisdiction, the U.S. Bankruptcy Court ordered the county to pay any and all funds payable on the contract to Buckeye which included funds for work on the project and "any and all additional monies, through *** any source whatsoever on the Projects." The record before us reflects that the county paid $58,965.69 to Buckeye pursuant to that order, and, subject to the jurisdiction of the U.S. District Court, has satisfied its obligation in full, since the record here does not evidence any pending claim by Buckeye or other appeal or objection to the resolution of that claim over which the bankruptcy court had jurisdiction. Accordingly, we conclude that the judgment of the trial court denying Progressive's claim for contract extras and interest is supported by competent, credible evidence and is not, therefore, against the manifest weight of the evidence and we therefore overrule each assignment of error. Judgment affirmed. - 10 - It is ordered that appellee(s) recover of appellant(s) 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. SPELLACY, C.J., NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- .