COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70029 : ACCELERATED DOCKET SMALL WORLD OF BEDFORD, INC. : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : STONEWALL CORPORATION, ET AL. : PER CURIAM : Defendants-Appellees : : DATE OF ANNOUNCEMENT JUNE 20, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Bedford Municipal Court Case No. 95-CVF-1486 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: LAWRENCE S. BENJAMIN, ESQ. JEFFREY YELSKY, ESQ. 24500 Chagrin Boulevard LAURYN YELSKY, ESQ. Suite 101 6F Brantley Building Beachwood, Ohio 44122 2378 Euclid Hts., Blvd. Cleveland, Ohio 44106 and TERRENCE J. BURKE, ESQ. 6000 Rockside Woods Blvd. Independence, Ohio 44131 - 2 - PER CURIAM: Plaintiff-appellant, Small World of Bedford, Inc., appeals from a summary judgment granted in favor of defendant-appellee, Stonewall Corporation and assigns the following errors for our review: I. THE COURT BELOW COMMITTED REVERSIBLE ERROR IN GRANTING DEFENDANT-APPELLANT'S [sic] MOTION FOR SUMMARY JUDGMENT BY THE COURT'S FAILURE TO APPLY THE APPROPRIATE STANDARD PURSUANT TO CIV. R. 56(C). II. THE COURT BELOW COMMITTED REVERSIBLE ERROR IN GRANTING DEFENDANT-APPELLANT'S [sic] MOTION FOR SUMMARY JUDGMENT WHERE THERE WAS NO EVIDENCE TO SUPPORT DEFENDANT'S APPELLANT'S [sic] FACTUAL CLAIM CONTRARY TO THE PROVISIONS OF CIV.R. 56(E). III. THE COURT BELOW COMMITTED REVERSIBLE ERROR IN GRANTING DEFENDANT-APPELLANT'S [sic] MOTION FOR SUMMARY JUDGMENT WHERE THE EVIDENCE WHICH WAS TO BE CONSTRUED MOST STRONGLY IN FAVOR OF PLAINTIFF-APPELLANT LEFT QUESTIONS OF MATERIAL FACT, OR, IN THE ALTERNATIVE, LEFT NO QUESTIONS OF MATERIAL FACT, BUT THAT THE CONTENTIONS OF DEFENDANT-APPELLEE WERE NOT PROVEN. IV. THE COURT BELOW COMMITTED REVERSIBLE ERROR IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WHERE DISCOVERY [sic] NOT BEEN COMPLETED, SPECIFICALLY THE TAKING OF DEFENDANT'S AGENT'S DEPOSITION. For the reasons set forth below, we affirm the decision of the trial court. Small World and Stonewall entered into a three-page written agreement in which Stonewall would purchase from Small World a single-family residence located at 8253 Waters Drive in Macedonia, Ohio for a purchase price of $102,000. The first two pages were a Realty One "Purchase Agreement" form. The form provided Realty One - 3 - and Commercial Equities would each receive a commission of 3.5% of the purchase price. The form also provided "See Addendum "A" for conditions to be met before purchase." Addendum "A" was the third page of the agreement and set forth eight handwritten provisions mutually agreed upon by Stonewall and Small World. They are as follows: 1. Buyer's approval of the physical condition of the property and zoning. 2. Minimum Licensed Daycare by Ohio Department of Human Services (35 children). 3. Approval for Daycare facility by city of Macedonia with occupancy permit. 4. Approval by city of Macedonia to expand building subject to buyer's approval. 5. Buyer's review and approval of number 1,2,3,4 of the above conditions to be completed within 30 days (July 11, 1994) of receipt by buyer of a copy of this addendum executed by seller. 6. Termination of this purchase agreement and addendum "A" will be automatically terminated if buyer in his sole discretion upon review of the above conditions (1,2,3,4) does not meet his approval or 30 days (July 11, 1994) after receipt by buyer of a copy of this addendum executed by seller. 7. Upon termination neither party shall have any liability to the other party. Each party agrees to bear its own expenses incurred in connection herewith, including any attorneys' fees, accounting fee and all other costs and expenses. 8. Sale subject to 2nd mortgage to released. [sic] The addendum was signed by the parties and provisions 5,6, and 8 were initialed by the parties. - 4 - On May 23, 1995, Small World filed a complaint for breach of contract against Stonewall. Stonewall answered and filed a cross- claim against Realty One and Commercial Equities. Stonewall subsequently moved for summary judgment and argued the purchase agreement expired under provision 6 of "Addendum A" to the purchase agreement. Stonewall submitted the three-page purchase agreement in support of its motion. Small World filed a brief in opposition to summary judgment, and argued the motion should have been denied under Civ.R. 56(F) because discovery was not complete, and argued summary judgment was improper because the terms of the contract were ambiguous. Small World submitted the affidavits of Patricia Martin, the President of Small World, and Regina Deininger, sales associate for Realty One, Inc. Martin understood the terms of the contract required Stonewall to inform her of his desire to terminate the agreement or the contingencies under provisions 1 thru 4 of "Addendum A" would be waived. Martin and Deininger both averred the contingencies under provisions 1 thru 4 had been satisfied and neither of them was notified of Stonewall's desire to terminate the agreement. Stonewall's reply brief and its motion for summary judgment was subsequently granted. This appeal followed. In its first, second and third assignments of error, Small World argues the trial court erred in granting summary judgment because the trial court failed to apply the appropriate standard under Civ.R. 56(C), there was no evidence to support Stonewall's - 5 - factual claim, and there remained questions of material fact. Although Small World separately assigns these errors, they are not separately argued in its brief. Therefore, they will be treated as one assignment of error and addressed as such. The standard of review for an appeal from summary judgment is plenary. This court applies the same test as the trial court, which is set forth in Civ.R. 56, and we evaluate the record according to Civ.R. 56. Civ.R. 56 specifically provides before summary judgment may be granted it must be determined that: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmovant. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. Under Civ.R. 56(E) "a nonmovant may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. -6- Small World presumes the trial court did not follow the proper standard of review because it maintains there were material facts in dispute. In applying the standard of review for an appeal from summary judgment, this court must look to the applicable area of law to determine whether any material facts are in dispute. Small World filed a complaint for breach of contract. Therefore, the applicable area of law in this case is the law of contract. "The construction of written contracts and instruments of conveyance is a matter of law." Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241 at paragraph one of the syllabus. "***[W]here 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. "If a contract is clear and unambig- uous, then its interpretation is a matter of law and there is no issue of fact to be determined." Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio St.3d 321, 322. Thus, the threshold question in this case is whether the terms of the purchase agreement where clear and unambiguous. In this case, the meaning of the automatic termination clause is in dispute. It appears in provision 6 of "Addendum A" and is provided as follows: "Termination of this purchase agreement and addendum "A" will be automatically terminated if buyer in his sole discretion upon review of the above conditions (1,2,3,4) does not meet his approval or 30 days after receipt by buyer of a copy of this addendum executed by seller. (July 11, 1994)." -7- Small World argues the automatic termination clause is in conflict with the purchase agreements which are provided for the sale of real property on July 30, 1994, because it allows for the agreement to automatically terminate on July 11, 1994. Although these two sections of agreement viewed in isolation might seem to contradict each other, under the language of the entire agreement, it is clear the automatic termination clause was intended to be a condition precedent to the purchase of the property. "A condition precedent is a condition that must be performed before the agreement becomes effective. Whether a provision in a contract is a condition precedent is a question of the parties' intent. Intent is ascertained by considering the language of the entire agreement and its subject matter." Serand Corporation v. Owning The Realty, Inc. (Nov. 1, 1995), Hamilton App.No. C0941010, unreported, citing Mumaw v. Western & Southern Life Ins. Co. (1917), 97 Ohio St. 1. In determining the intent of the parties in this case, our review is limited to the language of the entire agreement. The first page of the purchase agreement specifically states, "See Addendum 'A' for conditions to be met before purchase." The conditions listed in Addendum "A" include provision 6. Provision 6 provides for the automatic termination of the purchase agreement, unless Stonewall Corporation in its "sole discretion" approves of the satisfaction of conditions 1, 2, 3, and 4, or after the passage of thirty days. In either case, the provision required Stonewall, as the purchaser, to further approve the purchase agreement. Thus, -8- the intent of the parties to create a condition precedent to the overall purchase agreement was clear and unambiguous. Small World also argues Stonewall Corporation had to notify them in order to terminate the agreement. However, provision 6 of Addendum "A" specifically provides the agreement will be "automatically terminated." "Common words appearing in a written instrument will be given their ordinary meaning unless manifest absurdity results, or unless some other meaning is clearly evidenced from the face or overall contents of the instrument." Alexander at paragraph two of the syllabus. "Automatic" has been defined as "largely or wholly automatic," or "having a self-acting or self-regulating mechanism." Webster's New Collegiate Dictionary (1976) 76. In this case, "automatically terminated" clearly and unambiguously express the intent to make termination of the agreement "self-acting." Thus, Stonewall Corporation was not required to take any action to terminate the purchase agreement. Accordingly, provision 6 of Addendum "A" was clear and unambiguous. Small World also argues a question of fact was raised by the affidavits of Martin and Deininger. These affidavits have no bearing on interpretation of the purchase agreement because the agreement was clear and unambiguous. See Inland Refuse Transfer Co. at 322, supra. Therefore, to the extent that Martin and Deininger give a different interpretation to the contract, their affidavits do not raise a question of fact. The affidavits' usefulness in this case are limited to the question of whether the conditions precedent were met. The -9- affidavits of Martin and Deininger indicate Stonewall Corporation did not take any action to notify them they were terminating the purchase agreement. However, the purchase agreement, which "automatically terminated," did not require Stonewall Corporation to provide notice. In fact, the agreement suggests the opposite; interpreting the condition precedent as a matter of law, it implicitly required Stonewall to give notice it was going forward with the purchase agreement to avoid termination. Accordingly, the affidavits of Martin and Deininger did not raise a question of fact as to whether Stonewall breached its contract. In its fourth assignment of error, Small World argues summary judgment was premature because further discovery was required to settle the issues involving contract interpretation. Where evidence outside of a clear and unambiguous contract is not admissible to contradict the express terms of that contract, further discovery to find evidence beyond the contract itself is not a justification for denying or delaying a ruling on a motion summary judgment. See Inland Refuse Transfer Co. at 324. In this case, the entire contract was attached to Stonewall's motion for summary judgment. The evidence outside the purchase agreement would not be admissible because the agreement was clear and unambiguous. Therefore, discovery would not effect interpretation of the contract as a matter of law. Accordingly, summary judgment was properly granted in favor of Stonewall Corporation notwithstanding the lack of discovery. -10- Judgment affirmed. It is ordered that Appellees recover of Appellant their 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 Bedford Municipal 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. PATRICIA ANN BLACKMON, PRESIDING JUDGE ANN DYKE, JUDGE JOSEPH J. NAHRA, 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 journaliza- .