COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69506 WILLIE M. MILES, JR. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION REALTY ONE, INC., ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION MAY 9, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 260211 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee Realty One, Inc. and Britt NICHOLAS A. COLABIANCHI, ESQ. L. Jackson: 5725 Broadway Cleveland, Ohio 44127 J. TERENCE BURKE, ESQ. 6000 Rockside Woods Blvd. MADELEINE L. LECSO, ESQ. Cleveland, Ohio 44131-2350 21 Mapledale Avenue Bedford, Ohio 44146 For Defendants-Appellees William and Michelle Reid: GERALD J. PATRONITE, ESQ. 34950 Chardon Rd., Suite 210 Cleveland, Ohio 44094-9103 - 3 - JAMES M. PORTER, J., Plaintiff-appellant Willie M. Miles, Jr. appeals from summary judgment entered in favor of defendants-appellees William and Michelle Reid arising out of plaintiff's contract to purchase a residence from them. Plaintiff also appeals from the summary judgment in favor of defendants-appellees Realty One, Inc. and its agent Britt Jackson on plaintiff's claim for tortious interference with the real estate contract. We find no error and affirm. On August 29, 1991, plaintiff Miles entered into a Purchase Agreement to buy a single family dwelling from defendants William and Michelle Reid in Bedford Heights for $79,900. The sale involved two brokers: Town and Country Realty, the listing broker, was represented by Kyle Longmuir; Realty One and its agent Britt Jackson were also representing the Reids, the sellers. The closing and transfer of title was to take place by October 21, 1991. The Purchase Agreement had several conditions attached, including one which stated: 3) OFFER CONTINGENT UPON SELLER SECURING FINANCING ON S/L 41 BUCKTHORN BY 9/12/91 This condition had reference to the Reids' ability to obtain financing to build a new home (Sublot 41 Buckthorn) by September 21, 1991. On October 20, 1991, the parties signed an Amendment to the Purchase Agreement extending the dates for plaintiff Miles to obtain financing through a loan commitment and extending the closing date to November 12, 1991. That Amendment also stated that - 4 - "All other terms and conditions of said Purchase Agreement to remain in full force and effect." The sellers, the Reids, were unable to obtain the financing for their new Buckthorn home and elected to stand on the condition and cancel the agreement. They returned the earnest money deposit of $1,000 to plaintiff in December 1991. On October 26, 1993, plaintiff filed suit against the Reids for breach of contract and against the realtors for tortious interference. Following discovery and pretrials, defendants filed motions for summary judgment which were granted. A notice of appeal was filed and dismissed for lack of a final appealable order and remanded. Miles v. Realty One, Inc., et al. (May 4, 1995), Cuyahoga App. No. 67822, unreported. Following disposition of a cross-claim between the defendants, all claims against all parties were resolved and a new notice of appeal was timely filed on September 1, 1995. We will address the Assignments of Error in the order presented. I. THE LOWER COURT ERRED AS A MATTER OF LAW IN GRANTING DEFENDANTS/APPELLEES WILLIAM AND MICHELLE REID'S MOTION FOR SUMMARY JUDGMENT. Plaintiff contends that the financing contingency in favor of the Reids on the Buckthorn property expired by September 12, 1991 as specified in the original August 29 Purchase Agreement. Thus, plaintiff argues that the parties entered into a new contract for the purchase of the property by the Amendment to Purchase - 5 - Agreement, Addendum A, FHA Addendum and FHA repair commitment by the Reids, all dated October 20, 1991. The outcome of this appeal turns on an interpretation of the contract between the parties. Our primary obligation in construing the contract provisions is to give effect to the intent of the parties. The general principles we must apply are stated in The Toledo Group, Inc. v. Benton Industries, Inc. (1993), 87 Ohio App.3d 798, 805: The interpretation of a written contract is a matter of law for the court. Alexander v. Buckeye Pipeline Co. (1978), 53 Ohio St.2d 241, 7 O.O.3d 403, 374 N.E.2d 146, paragraph one of the syllabus. The purpose of contract construction is to effectuate the intent of the parties. Skivolocki v. East Ohio Gas Co. (1974), 38 Ohio St.2d 244, 67 O.O.2d 321, 313 N.E.2d 374, paragraph one of the syllabus. The intent of the parties is presumed to reside in the language they chose to employ in the agreement. Kelley v. Med. Life Ins. Co. (1987), 31 Ohio St.3d 130, 31 OBR 289, 509 N.E.2d 411, paragraph one of the syllabus. Common words appearing in the instrument will be given their plain and ordinary meaning unless manifest absurdity results or some other meaning is clearly evidenced from the face or overall contents of the contract. Alexander, supra, at paragraph two of the syllabus. We cannot agree with plaintiff's argument that a new contract was entered into by the October 20, 1991 amendments which dispensed with the financing contingency on the Buckthorn property. A construction of the documents in question does not support those contentions. In the first place, the parties did not intend to nor did they void the original August 29 Purchase Agreement. Indeed, the - 6 - Amendment to Purchase Agreement dated October 20, 1991 extending the time for the purchasers to obtain their loan commitment to November 1 and the closing to November 15 stated that "This is an amendment to the Purchase Agreement dated (Acceptance) August 29, 1991 ***." The same amendment stated in bold print that "All other terms and conditions of said Purchase Agreement to remain in full force and effect." This meant that the Buckthorn financing condition was still operable. Addendum A which reduced the purchase price from $79,900 to $78,000, executed October 20, 1991, also stated: "This is an Addendum to the Purchase Agreement dated August 29, 1991 ***." It is inescapable from the language the parties themselves used that the original Purchase Agreement was still in effect, except to the extent it had been modified or amended in the respects reflective in the amendment or addenda. Consequently, we find no merit to the plaintiff's argument that the financing contingency on the Buckthorn property was no longer in effect. Although plaintiff argues that defendants/sellers waived that contingency, we find no language in the Purchase Agreement or the Amendment and Addenda of October 20 that would support that contention. An addendum to the original contract does not create a new contract. Smith v. Denihan (1990), 63 Ohio App.3d 559, 568; Roth Realty, Inc., dba Roth Realtors v. Schenck (April 21, 1981), Montgomery App. No. 7005, unreported. The amendment of some details of a contract while leaving undisturbed its general purpose - 7 - constitutes a mere modification of the original contract and the latter remains in force as modified. Stinnett v. Damson Oil Corp. (C.A.11, 1981), 648 F.2d 576, 582. The financing contingency agreed to by both parties in the original contract was in no way altered by the unrelated language of the addendum. In the case below, there was no clear and definite intent on the part of the parties to do away with the financing contingency. Citizens State Bank v. Richart (1984), 16 Ohio App.3d 445, 446; Grant-Holub Co. v. Goodman (1926), 23 Ohio App. 540, 545-46. Plaintiff's Assignment of Error I is overruled. II. THE LOWER COURT ERRED AS A MATTER OF LAW IN GRANTING DEFENDANTS/APPELLEE REALTY ONE, INC. AND BRITT JACKSON'S MOTION FOR SUMMARY JUDGMENT. Plaintiff first contends that the trial court erred in considering portions of his own deposition when the full deposition was not filed in the action. However, that argument ignores the fact that plaintiff's brief in opposition to the summary judgment made no objection to the use by the defendants of the deposition excerpts which had not been filed. Absent such an objection, the trial court was entitled to consider the deposition transcripts attached to the summary judgment motion and the plaintiff is barred from raising that issue on appeal. Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 273. This issue has been raised in a number of cases. In Norman Keith v. Akro Corp. (June 14, 1995), Summit App. No. 9361958, unreported, the court stated: - 8 - Plaintiff has correctly argued to this Court that those transcript pages were not properly before the trial court because the full transcripts from which they supposedly had been extracted were not "timely filed" with the trial court pursuant to Rule 32(A) of the Ohio Rules of Civil Procedure as required by Rule 56(C) of the Ohio Rules of Civil Procedure. This Court has held, however, that, when a party submits materials that do not conform to the requirements of Rule 56(C) in support of a motion for summary judgment and the opposing party does not object, the trial court may consider those materials. See, also, Gaumont v. Emery Air Freight Corp. (1989), 61 Ohio App.3d 177; Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 83; Tye v. Board of Education (1984), 29 Ohio App.3d 63; Brown v. Ohio Cas. Ins. Co. (1978), 63 Ohio App.2d 87; Wilkerson v. Eaton Corporation (March 10, 1994), Cuyahoga App. No. 65182, unreported. We find no merit to these contentions given plaintiff's failure to object in a timely fashion below. On the merits, plaintiff claims that the realtor and its employee tortiously interfered with the performance of a real estate contract between plaintiff and the sellers. The Supreme Court of Ohio has recently acknowledged the tort at issue and adopted the commonly accepted Restatement analysis in Kenty v. Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415, 419: We too adopt the analysis of the Restatement and hold that in order to recover for a claim of intentional interference with a contract, one must prove (1) the existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the wrongdoer's intentional procurement of the contract's breach, (4) lack of justification, and (5) resulting damages. - 9 - The trial court did not err in awarding summary judgment in favor of the realtor and its agent on the plaintiff's claims. The plaintiff, given the evidence brought out in the deposition testimony, cannot establish the necessary elements of the alleged tortious interference with the Purchase Agreement by Realty One or its licensed agent, Britt Jackson. First, the plaintiff cannot establish that there was a breach of any valid contract. In deposition the plaintiff acknowledged that the seller's contingency clause was never altered in writing. Q. Okay. But this contract was still contingent upon their obtaining financing on Buckthorn, correct? Until they removed it? A. [Mr. Miles speaking] It's in the contract, yes. (Miles Depo. at 29). However, even if it could be argued that some act of the Reids amounted to a waiver of the Buckthorn contingency, there is no evidence that Realty One or Jackson, intentionally interfered with the contract in a way which proximately caused the breach. The plaintiff in his deposition agreed that Realty One and Jackson had no contractual obligation to insure performance by the Reids. (Miles Depo. at 61). He further stated that he had no knowledge of any undue influence on the part of Realty One or Jackson that impaired or interfered with the completion of the contract. Q. Let me go back to an early question. Do you have any facts upon which to base a belief that Britt Jackson or anyone from Realty One prevented this contract, Joint Exhibit A, from being completed? - 10 - A. [Mr. Miles] No, I don't have any facts to that effect. Q. Do you have any facts upon which to base a belief that Britt Jackson or Realty One actually interfered -- A. No. Q. -- in this contract? A. No. (Miles Depo. at 62-63). Although plaintiff's complaint does not contain a claim of negligence against the realtor and its agent, even if such a claim was properly asserted, the law does not recognize a claim for negligent interference with a contractual relationship. Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 404; Sayre v. United States (N.D. Ohio 1967), 282 F.Supp. 175; Cleveland Central Excavating, Inc. v. City of Westlake (March 21, 1985), Cuyahoga App. No. 48482, unreported. In any event, Realty One and its broker Jackson were representing the sellers, not the plaintiff in the transaction, and owed the plaintiff no duties except to avoid willful misrepresentations. Miles v. McSwegin (1979), 58 Ohio St.2d 97, 101; Clarke v. Hartley (1982), 7 Ohio App.3d 147, 152; Pasto Realty v. Roman (April 28, 1988), Cuyahoga App. No. 53339, unreported. The court was correct in granting summary judgment for the defendant realtor and its agent. Assignment of Error II is overruled. Judgment affirmed. - 11 - - 12 - It is ordered that appellees 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 Court of Common Pleas 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., and JAMES D. SWEENEY, J., CONCUR. JAMES M. PORTER JUDGE 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 .