COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69515 ELDEN HEINZ : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION DICKINSON & COMPANY : : Defendant-appellee : : DATE OF ANNOUNCEMENT : JUNE 20, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-246633 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: MARGARET M. KOESEL, ESQ. FRANCES FLORIANO GOINS, ESQ. DAVID A. BELL, ESQ. JILL G. OKUN, ESQ. Porter, Wright, Morris & PAULA B. CHRIST, ESQ. Arthur Squire, Sanders & Dempsey 925 Euclid Avenue, Suite 1700 4900 Society Center Cleveland, OH 44115 127 Public Square Cleveland, OH 44114-1304 - 2 - PATTON, J. Plaintiff Elden Heinz brought this breach of contract action against defendant Dickinson & Co. alleging a breach of a settlement agreement in which the parties agreed to the disposition of certain stock. Heinz alleged Dickinson breached the settlement agreement by refusing to transfer shares of a Puerto Rican company. The parties filed cross-motions for summary judgment, admitting the absence of contested facts and arguing their entitlement to judgment as a matter of law. The trial court found in Dickinson's favor and this appeal followed. The issue raised by the sole assignment of error is whether the trial court erred by granting summary judgment. Litigation between the parties began with a dispute brought in federal court over the ownership of sixty shares of Cellular Communications, Inc. Series B Convertible Preferred Stock. In January 1992, the parties agreed to settle their differences and entered into an agreement which provided: The parties agree that the disputed sixty (60) shares of Cellular Communications, Inc. Series B Convertible Preferred Stock ("Old CCI Preferred Stock") shall be divided so that Dickinson receives certificates in its name for, and becomes the beneficial owner of, shares of new Cellular Communications, Inc. Redeemable Participating Convertible Preferred Stock ("New CCI Stock") equivalent to twenty (20) shares of Old CCI Preferred Stock; and Heinz receives certificates in his name for, and becomes the beneficial owner of, (i) shares of New CCI Stock equivalent to forty (40) shares of the Old CCI Preferred Stock, and (ii) any other stock received in exchange for all the disputed sixty (60) shares of Old CCI - 3 - Preferred Stock. This division will be accomplished pursuant to the terms of the letter of instruction attached hereto as Exhibit "A." The letter of instruction attached to the settlement agreement asked Cellular Communications, Inc. to convert the sixty shares of Old CCI Stock into 60,000 shares of New CCI, and forward 20,000 of those shares to Dickinson and 40,000 of those shares to Heinz. The letter also identified two "spin-off" stocks -- Cellular Communications International, Inc. and OCOM Corporation -- and asked that shares from those companies be forwarded to Heinz. Heinz received these shares in January 1992. On February 11, 1992, Heinz wrote Dickinson to inform it he had not received all the spin-of stock under the settlement agreement and that "CCI will be issuing spin-off stock in a Puerto Rico Company shortly ***." Heinz asked Dickinson to cooperate by taking necessary steps to secure the Puerto Rican spin-off shares. Thomas Swartwood, a Dickinson representative, acknowledged Heinz's request by signing the letter. Heinz then dismissed the federal court case. Dickinson sold off 15,000 of its 20,000 shares of New CCI Stock in various lot sizes beginning sometime before February 10 and continuing up to February 27, 1992. CCI issued the Puerto Rican spin-off stock on February 28, 1992. Consequently, on the record date for shareholders Dickinson held only 5,000 shares of New CCI Stock so it only received and forwarded 833 shares of Puerto Rican spin-off stock to Heinz, rather than the 2500 shares - 4 - of the Puerto Rican spin-off stock Heinz claimed to be entitled to 1 receive under the agreement. Civ.R. 56(C) provides that summary judgment shall be rendered only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. We construe written contracts as a matter of law. Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, paragraph one of the syllabus; Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio St.3d 321. Words in a contract should be given their plain and ordinary meaning unless "manifest absurdity results or some other meaning is clearly intended from the face or overall contents of the instrument." Alexander, supra, at 245-246; King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 212. If a contract is clear and unambiguous, the court need not concern itself with rules of construction or go beyond the plain language of the agreement to determine the rights and obligations of the parties. Latina v. Woodpath Development Co. (1991), 57 Ohio St.3d 212; Seringetti Constr. Co. v. Cincinnati (1988), 51 Ohio App.3d 1, 4. At issue is the provision that Heinz would receive "any other stock received in exchange for all the disputed sixty (60) shares of Old CCI Preferred Stock." In our opinion, the explicit language 1 At some point after commencement of this action, the 2500 shares of Puerto Rican stock split five to four, thus accounting for Heinz's claim to 3125 shares. - 5 - of the settlement agreement affords two independent bases for affirming the summary judgment. First, giving the words of this provision their ordinary meaning, we find the uncontradicted facts show Heinz was entitled only to stock received in exchange for Old CCI Stock. The only stock received in exchange for Old CCI Stock was New CCI Stock. The Puerto Rican spin-off stock was received in exchange for New CCI Stock, not Old CCI Stock. We know entitlement to the spin-off stock was not dependent upon possession of Old CCI Stock because the subsequent purchaser of Dickinson's New CCI Stock received the spin-off stock. In other words, a party could purchase New CCI Stock (having not held any Old CCI Stock) and still be entitled to the spin-off stock. Hence, the spin-off stock would not be issued in exchange for Old CCI Stock, but issued as a result of holding New CCI Stock. This is exactly what happened in this case. Second, the contested language of the agreement did not restrict Dickinson's right to sell the stock prior to the record date of the spin-off stock. Heinz argues the key word in the contested portion of the settlement agreement is "all"; that is, Dickinson remained obligated to reimburse Heinz for all spin-off shares emanating from the original sixty shares of Old CCI Stock, regardless whether Dickinson or some other party held the Old CCI Stock. - 6 - This argument fails because nothing in the settlement agreement suggests the parties meant to restrict Dickinson's right to transfer the stock either before or after the record date for issuance of the spin-off stock--and Heinz's argument would have the practical effect of placing just such a restriction on the New CCI Stock. Following this argument to its logical conclusion would mean Dickinson would be obligated for all sixty shares, whether he held them or not, possibly even if Heinz himself held the shares. This would yield an obviously absurd result, and we cannot construe contracts in such a fashion. Alexander, supra, at paragraph two of 2 the syllabus. Heinz maintains Dickinson's act of handing over 833 shares of the spin-off stock supports his position because that act demonstrates Dickinson knew of its obligations under the contract. Dickinson maintains the settlement agreement did not obligate it in any way to hand over the spin-off stock, and that it did so only as a gesture of goodwill on its part. While Dickinson's characterization of its motive for handing over the 833 shares of spin-of stock now appears self-serving, we nevertheless find that under the circumstances the practical effect of Dickinson's transfer of the 833 shares does, in fact, operate as nothing more than goodwill. Our earlier conclusion that Dickinson 2 Heinz characterizes this argument as a red herring, claiming the parties knew there were only three spin-off stocks to be issued from the New CCI, but as will be discussed infra, the record does not show Dickenson's knowledge of the spin-off stocks. That knowledge belonged to Heinz. - 7 - had no obligation to hand over any stock received as a result of holding New CCI Stock compels this conclusion. Further justification for our conclusion lies with the absence of any express language in the agreement specifically incorporating the spin-off stock. The evidence shows the spin-off stock did not exist at the time the parties executed the settlement agreement. Heinz maintained he knew CCI would be issuing the spin-off stock at a future date and brought this fact out in federal court as the parties spread the details of the settlement agreement on the record. He claimed the parties specifically added the provision of the settlement to account for the imminent issue of the spin-off stock. Dickinson's representative Swartwood, however, testified at deposition that he could not recall if the matter of the Puerto Rican spin-off stock came up at any time during the settlement discussions, but did state neither he nor Dickinson knew at the time that the spin-off stock would be issued. If the issue of the spin-off stock was a dealbreaker as Heinz now suggests, the parties should have specifically incorporated the stock into the language of the settlement agreement. Heinz's own deposition testimony shows his awareness of the imminent spin-off stock issue. He claimed he raised this fact at the settlement hearing, but if he did, the parties discussed it off the record and made no specific mention of the fact either on the record or in the settlement agreement. - 8 - Heinz argues that his February 11, 1992 letter asking Dickinson to confirm its cooperation with the issuance of the spin- off stock constituted either a separate and distinct contract between the parties or an addendum to the settlement agreement. We reject both arguments. The February 11, 1992 letter stated in relevant part: "It is my understanding that Dickinson & Co. and Elden J. Heinz have received their New CCI Stock as provided by the Settlement Agreement ***. Mr. Heinz, however, has not received all of the spin off stock from the "Old CCI Preferred Stock." CCI will be issuing spin off stock in a Puerto Rico company shortly ***. Pursuant to the Settlement Agreement, please confirm by signing below that Dickinson & Co. will cooperate in CCI's issuance of the Puerto Rico spin off shares to Elden J. Heinz by immediately taking whatever steps and executing any and all documents that may be necessary." Swartwood signed the letter under a heading labeled "Signed and Acknowledged." We note at the outset the settlement agreement purported to set forth "the full and complete agreement of the parties." Contrary to Heinz's assertions, we find the letter seeks to impose additional obligations on Dickinson without its consent. We have previously found the settlement agreement did not obligate Dickinson to hand over shares received in exchange for New CCI stock. Heinz's interpretation of the letter would place just that obligation upon Dickinson. The imposition of a new duty upon Dickinson premised on the February 11, 1992 letter would require - 9 - both parties to consent to its terms, demonstrate a meeting of the minds, and be certain and definite. Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations (1991), 61 Ohio St.3d 366, 369. None of these elements are present here. Importantly, the February 11, 1992 letter lacked all the outward signs of contract. Swartwood's signature merely acknowledged his willingness to take whatever steps were necessary to cooperate in the issuance of spin- off shares to Heinz. As we have stated, Dickinson had no obligation under the settlement agreement; consequently, the steps it had to take were very short ones. Moreover, we find the proposed modification of the settlement agreement lacked consideration. Heinz's claim the consideration for the modification took the form of his willingness to dismiss the federal court action is specious. Heinz originally promised to dismiss the federal court action as part of the settlement agreement. Neither the promise to do a thing nor the actual doing of it will constitute sufficient consideration to support a contract if it is merely a thing which the party is bound to do by an existing contract with the other party. Rhoades v. Rhoades (1974), 40 Ohio App.2d 559, 562; Cohen & Co. v. Messina (1985), 24 Ohio App.3d 22. Clearly, Heinz's act of dismissing the federal court case was something he previously agreed to do, and the February 11, 1992 letter did not impose this duty on him as new and separate consideration for Dickinson's assistance with the spin- off shares. - 10 - Accordingly, we find the settlement agreement did not expressly encompass the spin-off stock; therefore, the trial court did not err by granting summary judgment. The assigned error is overruled. Judgment affirmed. - 11 - 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 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. BLACKMON, P.J. KARPINSKI, J., CONCUR JUDGE JOHN T. PATTON 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 journalization, .