COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70569 EAST OHIO GAS COMPANY : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION RIC DEVELOPERS, INC. : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 5, 1996 CHARACTER OF PROCEEDING: Civil appeal from Garfield Heights Municipal Court Case No. 95-CVF-00827 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: KEVIN P. PRENDERGAST 27999 Clemens Road, Suite One Westlake, Ohio 44145 For Defendant-Appellant: MITCHELL A. STANLEY Stanley, Stanley & Fisher 6500 Rockside Road #160 Cleveland, Ohio 44131 - 2 - O'DONNELL, J.: RIC Developers, Inc. appeals a $4,342.60 judgment of the Garfield Heights Municipal Court, entered in favor of the East Ohio Gas Company on a claim arising out of a written contract. For the following reasons we affirm. On June 1, 1993, RIC Developers, Inc. contracted with the East Ohio Gas Co. to relocate certain gas pipelines on property RIC planned to develop. East Ohio Gas estimated the cost of the relocation job to be $23,342.60, and agreed to commence the job immediately upon payment of the estimated amount in full. When RIC Developers paid the estimate, East Ohio Gas relocated the lines. However, the actual cost of the job exceeded the estimate, and therefore East Ohio Gas billed RIC for the difference, $4,342.98. Because RIC Developers refused to pay this additional amount, claiming it had already paid in full, East Ohio filed a breach of contract action in Garfield Heights Municipal Court seeking $4,342.98. East Ohio, then, filed a motion for summary judgment and RIC filed a brief in opposition. The trial court granted East Ohio's motion for summary judgment and RIC now appeals, assigning two errors for our review. The first assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT DESPITE THE EXISTENCE OF GENUINE ISSUE OF MATERIAL FACT. - 3 - RIC Developers contends the trial court erred in granting summary judgment because East Ohio Gas did not demonstrate an absence of issues for trial nor that it is entitled judgment as a matter of law. RIC Developers further contends that it demonstrated a genuine issue of material fact by showing that East Ohio Gas delayed sending an invoice for eleven months, and by showing that the demand amount exceeded the estimate by more than twenty percent. East Ohio Gas argues the trial court properly granted summary judgment in its favor because its motion clearly established that no issues of material fact remained to be litigated and it was entitled to judgment as a matter of law. The issue for our determination is whether the trial court properly granted summary judgment in this case. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103. Thus, we independently review the record, without deference to the trial court's determination, to determine if summary judgment is appropriate. Oiler v. Willke (1994), 95 Ohio App.3d 404, 407. Civ. R. 56 governs summary judgments and in State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509 at 511, the Ohio Supreme Court explained the rule's requirements: Civ. R. 56(C) provides that 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 - 4 - 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 the party against whom the motion for summary judgment is made. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. The party seeking the summary judgment bears the burden of proof in showing that no material issue of fact remains to be litigated. Celotex Corp. v. Catrett (1987), 477 U.S. 317. Furthermore, all doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. Once the moving party demonstrates that no material fact remains to be litigated, the nonmoving party then has the burden to set forth specific facts showing that there is a genuine issue of material fact or summary judgment shall be entered. Dresher v. Burt (1996), 75 Ohio St.3d 280. Thus, as provided in Civ.R. 56(E): When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response *** must set forth specific facts showing that there is a genuine issue for trial. With these standards in mind, we consider the granting of summary judgment in this case. Initially, we recognize the well- established rule that construction of a written contract is a matter of law to be determined by the court. Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, paragraph one of the - 5 - syllabus. Accordingly, when the terms of a contract are clear and unambiguous a court "cannot in effect create a new contract by finding an intent not expressed in the clear language of the contract." Id. at 246; Blosser v. Enderlin (1925), 113 Ohio St. 121; Fidelity & Casualty Ins. Co. v. Hartzell Bros. Co. (1924), 109 Ohio St. 566. In this case, the record contains a letter sent by East Ohio and signed by RIC Developers, outlining East Ohio Gas's terms for relocating pipelines. The letter states, in relevant part: * * * The East Ohio Gas Company (EOG) has estimated the costs at $23,324.60. If the actual costs differs, we would bill or refund the appropriate amount to RIC Developers, Inc. (RIC). * * * If you accept this $23,324.60 costs estimate, agree with the "bill or refund" condition, and wish EOG to proceed with this relocation job, please appropriately execute both copies of the enclosed "EASEMENT GRANT" unabridged, sign both copies of this letter, and return one copy of each document to me along with RIC's 23,324.60 check (payable to: East Ohio Gas Company). * * * Joseph O. Wesley, agreed to these terms and signed the document as president of RIC Developers. Pursuant to the agreement, East Ohio Gas relocated the pipes and then billed RIC for $4,342.98, the difference between the actual cost and the estimated cost. The terms of this agreement between East Ohio Gas and RIC Developers clearly and unambiguously state that if the cost of the job differed from the estimate, East Ohio Gas would bill or refund the appropriate amount. Therefore, we conclude, no - 6 - material fact remains to be litigated, East Ohio Gas is entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion, which is adverse to RIC Developers. Accordingly, the trial court properly granted summary judgment in this case and the first assignment of error is overruled. The second assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ENTERING JUDGMENT IN FAVOR OF PLAINTIFF-APPELLEE WHO HAD FILED AN UNTIMELY MOTION FOR SUMMARY JUDGMENT WITHOUT REQUESTING LEAVE, WHERE THE TRIAL COURT HAD SET A DATE FOR TRIAL, AND WHERE THE TRIAL COURT FAILED TO ISSUE AN ORDER OR NOTIFY DEFENDANT-APPELLANT THAT LEAVE WAS GRANTED OR THAT IT INTENDED TO RULE UPON SAID MOTION. RIC Developers urges that the trial court erred in granting summary judgment in favor of East Ohio Gas because East Ohio Gas untimely filed its motion for summary judgment, without leave of court, in violation of Civ. R. 56. East Ohio Gas contends the trial court properly granted summary judgment in its favor, despite the filing date, because RIC Developers did not raise the issue in the trial court. East Ohio further contends the court's consideration of its motion for summary judgment did not prejudice RIC Developers because it had an opportunity to oppose the motion. The issue, then, for our review, is whether the trial court erred in granting the motion for summary judgment, filed without leave of court. - 7 - In considering this issue, we note that Civ. R. 56(A) provides, in pertinent part, "If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court." In this case, the court set the matter for trial and ordered that all motions be filed with the court by February 19, 1996. The record reflects that East Ohio Gas mailed its motion for summary judgment by ordinary U.S. mail on February 16, 1996. However, the Garfield Heights Municipal Court did not receive this motion for filing until February 20, 1996, one day after the trial court's motion deadline. This one-day delay notwithstanding, we recognize that February 19, 1996, fell on the third Monday of February, a legal holiday known as Washington-Lincoln day. R.C. 1.14(C). Because of the legal holiday, Civ. R. 6(A) provides for an extension of time and states in relevant part: When a public office in which an act, required by law, rule, or order of court, is to be performed is closed to the public for the entire day which constitutes the last day for doing such an act, * * * then such act may be performed on the next succeeding day which is not a Saturday, a Sunday, or a legal holiday. Therefore, because East Ohio Gas filed its motion for summary judgment on the next succeeding day following a legal holiday, it timely filed its motion and did not need leave of court. Accordingly, the trial court did not err in considering the - 8 - motion for summary judgment and the second assignment of error is overruled. Judgment affirmed. 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 Garfield Heights 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. MATIA, P.J., and DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the - 9 - court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .