COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70577 GLICKMAN PROPERTIES, INC. : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION J. HARVEY CROW : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION DECEMBER 19, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 202583 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: EDWARD KANCLER, ESQ. PATRICK M. FLANAGAN, ESQ. Benesch, Friedlander, Coplan Savoy, Bilancini, Flanagan & Aronoff P.L.L. & Kenneally 2300 BP America Building 595 West Broad Street 200 Public Square Elyria, Ohio 44035 Cleveland, Ohio 44114 - 2 - JAMES M. PORTER, P.J., Defendant-appellant J. Harvey Crow appeals from the summary judgment entered by the trial court in favor of plaintiff-appellee Glickman Properties, Inc. which held that plaintiff was entitled to a return of a $500,000 option fee because defendant misrepresented the zoning of land for use as a shopping mall. Defendant claims that disputed issues of material fact precluded summary judgment; that the trial court further erred: in denying defendant's motion to amend his counterclaim and add new parties plaintiff; in denying the defendant's motion to strike the certificate of judgment; and in awarding prejudgment interest. We find no error and affirm. This case arose out of an Option Agreement, dated October 6, 1989, relating to Glickman's purchase of Crow's property. Defendant Crow was an 88-year-old man who owned approximately 85 acres of property in Brecksville, Ohio, located immediately north and east of the intersection of I-77 and Miller Road. Crow maintained his home on the property and owned the land since the 1970s. Crow was a lawyer who had been actively involved in real estate transactions for over fifty years. Glickman Properties was represented in the transaction by Ross Glickman, its President. Glickman Properties was a joint venture partnership with Steven Roth and Russell Wight of Interstate Properties, Inc. of New Jersey, formed for the purpose of acquiring and developing shopping centers. Interstate, a sophisticated developer and operator of shopping centers and malls in a number of - 3 - states, provided the financing for Glickman on the proposed venture with Crow. In September 1989, Crow attended a meeting with Ross Glickman at which time the property, its development and sale were discussed. At that meeting, Crow contends he presented Glickman with a zoning map and discussed that approximately 53 acres were zoned "shopping center;" that Crow had a 60 foot permanent easement to Brecksville Road (Rte. 21); and that 28 acres were zoned "residential" and 6 acres were zoned "office/laboratory." After the initial meeting, Crow and Glickman met with Mayor Hruby of Brecksville and discussed the proposed development and uses of the land. Mayor Hruby indicated his support for the project and that a variance for parking on those acres zoned "residential" could be obtained without difficulty. On October 6, 1989, Crow met with Ross Glickman in his Columbus, Ohio office. A draft of an Option to Purchase Real Estate (the "Option Agreement") prepared by counsel for Interstate, was given to Crow to review. Discussions concerning the property and the option took place from 10:30 a.m. until 4:30 p.m. Throughout the meeting, Glickman was in telephone contact with a New Jersey attorney who represented Interstate in this venture and who participated in the drafting of the Option Agreement. The language of the initial draft of the option presented to Crow included references to a 1989 survey and the legal descriptions of the property. The "representations and warranties" - 4 - provision of the initial draft also stated that eighty acres were "unconditionally zoned for Grantee's intended uses and purposes as a regional shopping center." Crow objected to the representation of 80 acres being zoned for uses and purposes as a regional shopping center. Following further discussion and negotiation Crow finally agreed to Glickman's suggestion that 75 acres would be described as "commercial and parking" and at least 62 acres as "commercial," although the Brecksville Zoning Code apparently had no classification known as "commercial." Other changes were made at Crow's suggestion. On October 6, 1989, the Option Agreement providing for an initial six month period subject to extension was executed by the parties. The prospective sale price for the 84 acres was $9 million, with $250,000 deposited in escrow. The executed Option Agreement contained the following: 1. Representations and Warranties. Owner [Crow] hereby covenants, represents and warrants to Grantee [Glickman] as follows: * * * 1.2 That at least seventy-five (75) acres of the Real Estate is and will remain until title closing finally and unconditionally zoned as parking and commercial, of which commercial is at least 62 acres, which will permit a regional shopping center, including without limitation, general retail and related uses and purposes with all necessary classifications, variances, permissions and exceptions required for development, improvement and use of Real Estate as a regional shopping center. If seventy- five (75) acres of the Real Estate is not thus - 5 - suitably zoned, or if variances from the existing zoning classification are required by Grantee, Grantee, in addition to all other rights and remedies, shall have the right to have the zoning classification or requirements changed at Owner's expense and take such action (either before or after exercise of this option), including the filing of petitions for rezoning or for variance of zoning requirements, as Grantee deems necessary. Owner shall execute whatever instruments are necessary and take whatever action is necessary and fully cooperate to assist Grantee in obtaining such rezoning or variances. If any applications for rezoning or variances are filed during the term of this option or any extension hereof, this option shall be automatically extended to a date which is thirty (30) days after such rezoning or variance is finally granted and all time for appeals has expired. If such rezoning or variance is denied, this option shall terminate and all sums paid by Grantee to Owner for this option and any extension hereof shall be refunded to Grantee, unless Grantee waives such zoning requirements in writing. Promptly following the execution hereof, Owner shall furnish Grantee satisfactory evidence that the Real Estate is suitably zoned for development and use as a regional shopping center to such extent, including, without limitation, the opinion of Owner's counsel or other counsel selected by Grantee to such effect, and the title insurance policy shall expressly warrant such zoning as hereinafter provided. The agreement further provided at paragraph 1.10 as follows: Whether or not Grantee exercises this Option, if any of the covenants, representations or warranties set forth above is not correct or complied with for any reason whatsoever, at any time, including the execution hereof and at all times through the date of title Closing, and is not waived in writing by Grantee, Grantee, in addition to all other rights and remedies available to it, shall be entitled to a refund of all monies paid by Grantee for this Option and any extension hereof (together with all interest accrued thereon) and the same promptly - 6 - shall be returned to Grantee and Grantee's obligations hereunder shall terminate. Grantee shall not be deemed to have waived any of such rights by exercising or extending this Option. Under the Option Agreement, Glickman also retained a 40 day right to satisfy itself that the property met its needs for the intended use. Glickman took approximately 56 days to check out the land. Within that time, an additional survey was performed by Christopher H. Dempsey, a professional surveyor; a soil test was conducted; a title commitment was issued by Ohio Title; a traffic survey was commissioned; and architects were hired to design the site plan for the property. The proposed site development plans for Glickman showed that the mall would be placed on the 53 acres zoned for shopping center use with parking and condominiums featured on the other properties. During the forty-day escrow period, Glickman was given every opportunity to investigate the title, zoning and intended use. Throughout this period, the zoning was a matter of public record. No objection was raised, and at the end of the forty-day period, $250,000 was released to Crow. On April 6, 1990, Glickman issued an additional $250,000 check extending the option through October 6, 1990. Soon thereafter it was learned that only 50.645 of the original 84 acres of the parcel were zoned for shopping center use. The remaining 34 acres as zoned (single-family residential) would not allow for the construction of a shopping center without proper variances or a challenge to the zoning. In June 1990, Ross Glickman informed Crow - 7 - that he had decided to attempt to rezone 18 acres to shopping center so as to allow for parking and the centralization of the mall on the entire 75 acre property. In light of the zoning problems, a first amendment to the Option Agreement was executed by the parties on September 10, 1990 providing for four consecutive additional option periods extending through January 30, 1993. The additional options were also necessary to allow Glickman to secure Macy's as an anchor tenant. At about the same time, Glickman sent Crow a handwritten letter confirming that Glickman would pay Crow's expenses for his rezoning petition effort. A petition for rezoning was filed with Brecksville and placed on the November 1990 ballot. Glickman spent in excess of $140,000 on the effort to rezone. Flyers distributed to the public by Glickman during the rezoning campaign stated that the property, as zoned, could support a shopping center; however, his group's "upscale" project required a change in the zoning. Unfortunately, the rezoning was defeated by public vote. Following the rezoning failure, by letter, dated November 28, 1990, Glickman alleged, for the first time, that Crow had misrepresented the scope of the property available for shopping center use and demanded refund of the $500,000 escrow payment with interest plus the costs of the rezoning effort ($140,613). Crow declined and this litigation ensued. - 8 - Plaintiff Glickman filed suit on December 17, 1990 requesting a declaratory judgment in Count I that the Option Agreement had been properly terminated by Glickman; that Glickman had performed all of its duties under the Option Agreement; that the representations and warranties therein by Crow were not true; and that by reason thereof Glickman was entitled to a return of the option fee of $500,000 with interest. In Count II, plaintiff asserted fraud. At a March 26, 1991 pretrial, Crow was granted leave to file his answer instanter and plaintiff was granted leave to file a motion for summary judgment by April 12, 1991. Defendant's answer denied the alleged misrepresentations and raised the affirmative defenses of failure to state a claim, laches and failure to join necessary and indispensable parties. Crow also counterclaimed for reimbursement of expenses he incurred in the attempt to obtain rezoning of the premises subject to the Option Agreement and for damages arising out of the plaintiff's intentional interference with the rezoning effort. On April 12, 1991, Glickman filed a motion for summary judgment on its declaratory judgment count with supporting affidavits and exhibits. Defendant filed his opposition with supporting affidavit and exhibits to which plaintiff filed its reply brief. On May 31, 1991, defendant filed his motion to join as new party plaintiffs, Ross Glickman and Interstate, which was denied on - 9 - June 12, 1991. On June 28, 1991, Crow filed a motion for leave to file an amended answer and counterclaim, which included claims for damages to the value of his property, taxes owed and other related damages arising out of Glickman's alleged breach of the Option Agreement. The motion was opposed and denied on July 19, 1991. Defendant's renewed motion to join Interstate as a new party was also denied on July 19, 1991. The deposition of Crow was filed on July 22, 1991 by Glickman. After defendant filed an affidavit of disqualification of the original judge, he voluntarily stepped aside. The case was then assigned to the Honorable Timothy E. McMonagle on July 25, 1991. On January 14, 1992, a hearing was held on the motion for summary judgment, a transcript of which is in the record. On February 26, 1992, defendant filed Ross Glickman's deposition and a supplemental brief (with supplemental affidavit of Crow and exhibits) in opposition to the plaintiff's motion for summary judgment. The plaintiff's motion to strike the supplemental brief was granted. On March 27, 1992, Judge McMonagle granted the plaintiff's motion for summary judgment on Count I and held: Based on the arguments and evidence presented by the parties, the Court finds, pursuant to the provisions of Rule 56(C) and (D) of the Ohio Rules of Civil Procedure, that no genuine issue of any material fact exists respecting the Plaintiff's Motion for Summary Judgment on Count I, as to the liability of Defendant to immediately repay the sum of Five Hundred Thousand Dollars ($500,000.00) paid by Plaintiff to Defendant pursuant to the terms of - 10 - the Option Agreement of the parties, in that the evidence establishes without question that contrary to the representations set forth in the Option Agreement, 75 acres of the land involved were not unconditionally zoned for parking and commercial use and that 62 acres of that 75 acres were not unconditionally zoned for the construction of a regional shopping center. By reason of those facts alone, Plaintiff is entitled to Judgment against Defendant on Count I of the Complaint in the sum of Five Hundred Thousand Dollars ($500,000.00). On April 22, 1992, Glickman filed a certificate of judgment. Because Judge McMonagle's March 27, 1992 entry contained the language "no just reason for delay," defendant appealed the entry on April 24, 1992, and then moved to dismiss the appeal on the basis that the entry was not a final appealable order. The motion to dismiss was granted by this Court, and the case was returned to the trial court. Glickman Properties v. Crow (July 6, 1992), Cuyahoga App. No. 63625, unreported. The case was then set for trial on several occasions over the next few years. Judge Ronald Suster eventually succeeded Judge McMonagle and he set the case for jury trial on April 16, 1996 on the remaining issues. On February 16, 1996, Crow filed a motion to strike the certificate of judgment since the March 27, 1992 order was not a final appealable order as determined by this Court in its July 6, 1992 dismissal. At issue for trial were: Glickman's claim for reimbursement of $140,613 in rezoning effort expenses; Glickman's claim for - 11 - damages based upon fraud; and Crow's counterclaim for his expenses arising out of Glickman's mishandling of the zoning effort. On the date scheduled for trial, April 16, 1996, Judge Suster denied a motion for reconsideration of the summary judgment thereby affirming Judge McMonagle's order of March 27, 1992 and awarding prejudgment interest retroactive to November 28, 1990, the date of the demand letter for the refund of $500,000. The court also denied the motion to strike the certificate of judgment. The plaintiff then voluntarily dismissed, with prejudice, its claims for expenses ($140,613) under Count I and fraud under Count II of its complaint and confessed judgment to defendant's counterclaim for expenses in the amount of $4,475.05 plus interest. Judgment Order of April 24, 1994. All issues having been disposed of below, this timely appeal by defendant Crow ensued. We will address defendant's assignments of error in the order presented. I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON COUNT I OF THE PLAINTIFF'S COMPLAINT AND IN DENYING THE DEFENDANT'S MOTION FOR RECONSIDERATION OF THAT DECISION. Under Civ. R. 56, summary judgment is proper when: (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 the party against whom the motion for summary judgment is made. - 12 - State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. 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 nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with 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. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. - 13 - This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ. R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. The Option Agreement allowed Glickman to recover the $500,000 if any representations or warranties of Crow were untrue. (Option Agreement 1.2, 1.10). The accuracy of the representations and warranties was also a condition precedent to Glickman's obligation to purchase the property. Id. The trial court found that the representations and warranties as to the zoning of the property were untrue and plaintiff was entitled to the refund as a matter of law. Defendant contends disputed issues of material fact precluded the award of summary judgment in Glickman's favor, i.e., it is a disputed issue of fact whether the representations and warranties as to the zoning were true or false, or, at least, whether the language used was ambiguous. - 14 - The Option Agreement contained the following representations and warranties of defendant Crow at paragraph 1.2, which are critical to the appeal: 1.2 That at least 75 acres of the Real Estate is and will remain until Closing finally and unconditionally zoned as parking and commercial, of which commercial is at least 62 acres which will permit a regional shopping center, including, without limitation, general retail and related uses and purposes, with all necessary classifications, variances, permissions and exceptions required for development, improvement and use of the Real Estate as a regional shopping center. *** That representation and warranty, that the zoning permitted a shopping center on at least 62 acres, was verified by plaintiff in his deposition: Q. All right. Now you also say in this Agreement at 1.2 that at least 75 acres of the land can be used for shopping center, retail use, etc., is that true? A. That's what it says there. Q. Okay. A. I think that is -- I think that is reasonably true. Q. All right. A. I think more than 75 acres probably. (Crow Depo. at 31-32). The undisputed facts before the trial court at the time it granted Glickman's motion for summary judgment on the $500,000 option payments made to Crow were that only 50.645 acres of the land was zoned for shopping center use. The evidence in support of - 15 - that fact was established through: the affidavit of Christopher J. Dempsey, Registered Land Surveyor, who stated the acreage of each of the permanent parcel numbers involved (Dempsey Aff. 5); the affidavit of Paul A. Grau, Law Director of the City of Brecksville, who, based on his experience and knowledge, set forth the appropriate zoning of Brecksville as it attached to each permanent parcel (Grau Aff. 3-5); and a certified copy of the actual zoning map of the City of Brecksville; and the planning and zoning code of Brecksville, attached to the Grau affidavit. The affidavit of Law Director Grau concluded that "[a]s a consequence, 50.645 acres of land are permitted for shopping center use out of the 84.039 acres identified at said Paragraph 3" (referenced to the permanent parcel numbers). The Grau affidavit also established that no other use in a zoning district in Brecksville can be made except as expressly permitted by the zoning code and that 33.394 acres of the 84.039 acres were zoned R-8, i.e., single-family residential and that "no shopping center use is permitted in an R-8 district." (Grau Aff. 4-5). Plaintiff argues that when it was discovered that only 50.645 acres of the 84 acres of land involved were zoned for shopping center use, Glickman attempted to have at least 18 acres rezoned from single-family usage and office building to permit shopping center use and parking as the Option Agreement permitted: The Option Agreement ( 1.2) provided for this eventuality: If seventy-five acres is not thus suitably zoned, or if variances from the existing zoning - 16 - classification are required by Grantee, Grantee [Glickman] *** shall have the right to have the zoning classification or requirements changed at Owner's expense and take such action (either before or after the exercise of this Option) including the filing of Petitions for rezoning or for variance of zoning requirements, as Grantee deems necessary ***. It is undisputed that Glickman's rezoning attempts failed. Therefore, on November 28, 1990, plaintiff notified defendant in writing that it was terminating the Option Agreement, and demanded return of the option monies paid, together with reimbursement for the aforesaid rezoning expenses and interest. Defendant Crow refused such payment, leading to the instant litigation. We agree with the trial court that there is no ambiguity in the language contained in Paragraph 1.2 of the Option Agreement. Defendant represented and warranted that at least 75 of the 84 acres involved were unconditionally zoned as parking and commer- cial, of which commercial is at least 62 acres, which will permit a regional shopping center, including, without limitation, general retail and related uses and purposes, with all necessary classification, variances, permissions and exceptions required for development, improvement and use of the Real Estate as regional shopping center. *** The plain meaning of this provision is that 75 acres was zoned commercial and parking, of which at least 62 acres was commercial and zoned to permit shopping center construction and use. Furthermore, Glickman had the express right to seek variances or rezoning as it required for its purposes. - 17 - Defendant nevertheless argues that the representation and warranty of defendant contained at paragraph 1.2 of the agreement was true. (Applt's. Brf. p. 16). In the alternative, defendant argues that the contract language was ambiguous, thereby creating a material question of fact under summary judgment standards. Defendant also contends that he was pressured by Glickman to make the representation and warranties. We do not find these arguments persuasive. While defendant insists that 75 acres of the land, "or more," was zoned to permit the construction of a shopping center (Crow Depo. p. 31), the zoning code of Brecksville and the affidavit of its law director establish that of the 84.039 acres involved, 33.394 of those acres are zoned R-8, single-family residential. Grau's affidavit likewise states as follows: Chapter 1151 deals with residential districts and defines the uses at Section 1151.04, including R-8 use. The section sets forth the uses permitted thereunder and that no other uses can be made in that district. No shopping center is permitted in an R-8 district. (Grau Aff. 3). The language at Section 1151.03 and 1151.04 of the Brecksville Planning and Zoning Code corroborates the Grau affidavit. Defendant also contends that since shopping center use was "permitted" on some of the property, the representations and warranties that he made and agreed to in writing are inapplicable. We find no evidence of waiver of that requirement by Glickman. - 18 - We find no ambiguity in Paragraph 1.2 of the Option Agreement. Defendant admits he read the agreement and even "made some changes in it." (Crow Depo. at 34-35). Despite the foregoing, defendant attempts to change the meaning of the terms and provisions of the agreement by alleging facts or circumstances which violate the parol evidence rule and are incompetent to vary the plain meaning of the Option Agreement. A written contract must be construed and interpreted from its four corners without consideration of parol evidence, i.e., evidence which would contradict or vary the terms of the contract. Walters v. First Nat'l Bank (1982), 69 Ohio St.2d 677, 681, syllabus; Rhodes v. Rhodes Indus., Inc. (1991), 71 Ohio App.3d 797,804; Ameritrust Co. v. Murray (1984), 20 Ohio App.3d 333, 335. This is particularly true where the parties have included an integration clause, as here, which specifies that the contract contains "no [mis]representations by Owner as to any material fact or matters pertaining to the Real Estate or this transaction other than those contained in this Agreement." Nobles v. Toledo Edison Co. (1940), 67 Ohio App. 414, 417; Morris Novak Realty Co. v. Gibbons (May 27, 1993), Cuyahoga App. No. 62654, unreported. The Supreme Court gave a very clear exposition of the parol evidence rule recently in Ed Shory & Sons, Inc. v. Soc. Natl. Bank (1995), 75 Ohio St.3d 433, 440: "The Parol Evidence Rule was developed centuries ago to protect the integrity of written contracts." Shanker, Judicial Misuses of the Word Fraud to Defeat the Parol Evidence - 19 - Rule and the Statute of Frauds (With Some Cheers and Jeers for the Ohio Supreme Court)(1989), 23 Akron L.Rev. 2. The parol evidence rule is a rule of substantive law that prohibits a party who has entered into a written contract from contradicting the terms of the contract with evidence of alleged or actual agreements. Id. "When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contact, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing." 3 Corbin, Corbin on Contracts (1960) 357, Section 573. See, also, Charles A. Burton, Inc. v. Durkee (1952), 158 Ohio St. 313, 49 O.O. 174, 109 N.E.2d 265. As is apparent from the foregoing, the parol evidence rule will not be overcome by merely alleging that a statement or agreement made prior to an unambiguous written contract is different from that which is contained in the contract. Stated differently, "an oral agreement cannot be enforced in preference to a signed writing which pertains to exactly the same subject matter, yet has different terms." Marion, supra, 40 Ohio St.3d 265, 533 N.E.2d 325, paragraph three of the syllabus. In the case before us, Francis had indeed proffered evidence extrinsic to the various applicable written agreements entered into with Society, and accordingly the parol evidence rule is applicable. A review of the alleged oral promises at issue, compared the various written agreements signed by Francis, establishes that the terms of the alleged oral agreements pertain to the very same subject matter as the terms of the written agreements - the financing of Sherbrook. Defendant continues to argue that "a careful analysis of the language of Item 1.2 of the Option Agreement, and the factual allegations made and supported by Crow establish that the Option - 20 - representations are true." Applt's. Brf. at 19. We have found that the language of the contract is clear and unambiguous requiring no reference to the numerous "factual allegations" that defendant advances. Therefore, we have no need to address defendant's claim of ambiguity and its collateral principle construing ambiguities against the drafter. Nor does it matter that the zoning code was a public document; that plaintiff had access to determine for itself the zoning requirements; that it released $500,000 in escrow funds; that it extended the option for four periods; that the parties all knew what the representations really meant; that the mayor said a parking variance would be easily obtained; or that plaintiff's site plans displayed a location of the mall on the location zoned for shopping center. The crucial issue is what the parties agreed to and incorporated in their final Option Agreement not whatever circumstantial or parol evidence might indicate to the contrary. As we stated in Nicols v. Chicago Title Ins. Co. (1995), 107 Ohio App.3d 684, 696: "Intentions not expressed in the writing are deemed to have no existence and may not be shown by parol evidence." Aultman Hosp. Assn. v. Community Mut. Ins. Co. (1989), 46 Ohio St.3d 51, 53, 544 n.E.2d 920, 923; Yaroma v. Griffiths (May 18, 1995), Cuyahoga App. No. 67635, unreported, at 14, 1995 WL 307745. "When the terms of the contract are unambiguous, courts will not in effect create a new contract by finding an intent not expressed in the clear language employed by the parties. Shifrin v. Forest City Ent. (1992), 64 Ohio St.3d 635, 638, 597 N.E.2d 499, 501. - 21 - The plain language of the instrument governs the legal rights of the parties. Glickman had declared its intention to use the land to build a shopping center or mall. Crow, for his part, has represented that such use is permitted as it was then zoned. Having thus warranted that the land was suitable for the stated purpose, he is bound by these agreed upon conditions. Crow may not present evidence to refute the plain language of his own representations. Point East Condo. v. Cedar House Assn. (1995), 104 Ohio App.3d 704, 712. Defendant also argues that plaintiff is bound by the doctrine of caveat emptor and that this doctrine somehow prevails over the written warranties and representations of defendant. The caveat emptor argument cannot be advanced to change the contract of the parties. Where a vendor offers an unqualified guarantee or representation as to the condition of a property, the doctrine of caveat emptor will not control as to that part of the property. Brewer v. Brothers (1992), 82 Ohio App.3d 148, 153; Foust v. Valleybrook Realty Co. (1981), 4 Ohio App.3d 164, 167; Zajac v. Triona (Feb. 24, 1989), Wood App. No. WD-88-26, unreported. A buyer's duty to inspect ends with the representation or guarantee. Brewer, supra; Tucker v. Kritzer (1988), 54 Ohio App.3d 196, 199. Moreover, the cases cited by defendant do not involve a breach of representations and warranties in a written contact, but involve a fraud claim brought by the plaintiff alleging oral misrepre- - 22 - sentations not contained in the contract. E.g., Layman v. Binns (1988), 34 Ohio St.3d 176, involved a fraud action in the purchase of a house with a damp basement. There, the plaintiffs admitted "no active misrepresentation or misstatement of material fact was made" by the seller. Layman at p. 178. Travers v. Long (1956), 165 Ohio St. 249 was another fraud case involving the purchase of real estate. The written contract contained no representations and warranties by the seller. In Van Horn v. Epstein (1990), 64 Ohio App.3d 745, 746, a fraud claim of the purchaser was rejected because the written contract there stated: "Purchaser is relying solely upon his own examination of the Real Estate for its physical condition and character, and not upon any representations by the real estate agents involved, except for those made by said agents directly to the purchaser in writing." No such claim exists here. In Finamore v. Epstein (1984), 18 Ohio App.3d 88, this Court likewise rejected such a fraud claim. The doctrine of caveat emptor does not apply despite the contract covenants and promises of the parties. We agree with the trial court that reasonable minds could come to but one conclusion and that was that the representations and warranties were breached, and there was no waiver of the breach. Plaintiff Glickman was entitled to a refund of its $500,000 option payment with interest from the date of its written demand. Assignment of Error I is overruled. - 23 - II. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO AMEND, TO ADD NEW PARTIES, TO AMEND COUNTERCLAIM AND TO ADD NEW PARTY PLAINTIFFS. Defendant alleges that prejudicial error occurred when the trial court denied defendant's motion to add new parties and to amend his answer and counterclaim. Those motions were denied by the trial court inasmuch as trial had already been scheduled when they were filed. Civ.R. 15(A) provides that a party may amend his pleading by leave of court and that "leave of court shall be freely given when justice so requires." The decision to allow amendment is left to the sound discretion of the trial court and will not be disturbed on appeal unless it is clear that the decision was unreasonable, arbitrary or unconscionable. Wilmington Steel Products, Inc. v. Cleveland Electric Illuminating Co. (1991), 60 Ohio St.3d 120, 122. "Where a plaintiff fails to make a prima facie showing of support for new matters sought to be pleaded, a trial court acts within its discretion to deny a motion to amend the pleading." Wilmington, supra, syllabus. Moreover, where, as here, there is no substantive difference between the claims of the amendments and the original pleadings, it is not an abuse of discretion to deny the motion. Kelley v. Cairns & Bros., Inc. (1993), 89 Ohio App.3d 598, 608. Given our previous discussion, the addition of new parties or claims would not have changed the outcome, so the refusal to allow same was harmless. Assignment of Error II is overruled. - 24 - III. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO STRIKE THE CERTIFICATE OF JUDGMENT. The partial summary judgment entered on Count I of the Complaint on March 27, 1992 stated: The Court further rules that there is no just reason for delay under Rule 54(B) of the Ohio Rules of Civil Procedure *** and orders that the within judgment on Count I of the Complaint in the sum of $500,000.00 in favor of Plaintiff against Defendant J. Harvey Crow is hereby granted, and that the Clerk of Court may enter judgment thereon accordingly, each party free to pursue its own rights therein, the Court having reserved the remaining issues as aforesaid. Thereafter, plaintiff filed a Certificate of Judgment, and asserted its lien rights in several foreclosure cases brought against defendant by the County Treasurer for non-payment of real estate taxes. Those cases are still unresolved. Nearly four years later, on February 17, 1996, defendant, for the first time, raised the issue of whether or not the Certificate of Judgment was valid, and moved to strike it. That motion was denied on April 16, 1996. Defendant cites only one case in support of its argument in this regard, which case does not reach the issue involved. Reininger Plumbing & Heating, Inc. v. G.M. Corp., (1970), 25 Ohio App.2d 25, involved the granting of a partial summary judgment under the statutory predecessor of Rule 56 in a case where the plaintiff was found entitled to summary judgment on its first claim - 25 - for money, but defendant's counterclaim remained pending. The Court there stated: It is our opinion that in this case the court properly found plaintiff entitled to summary judgment upon its cause of action, but that inasmuch as this does not dispose of the whole case, the summary judgment which has been entered in general terms should be suspended pending the determination of the remaining issues in the case. That is what happened in the instant case. Plaintiff stipulated that it would not seek enforcement of its judgment until the entire case was determined. Defendant has suffered no prejudice from the certificate of judgment. Assignment of Error III overruled. IV. THE TRIAL COURT ERRED IN AWARDING PREJUDGMENT INTEREST. Defendant claims that the trial court committed prejudicial error in awarding prejudgment interest to plaintiff, because "obligating Crow to pay prejudgment interest where he has maintained a good faith defense to the alleged amount owed is not justified under Ohio law." This argument is without merit. Prejudgment interest is available under R.C. 1343.03(A) when the claimed amount due is "capable of ascertainment by computation or reference to well-established market values at the time the cause of action arose." Worrell v. Multipress (1989), 45 Ohio St.3d 241, 249; Conti Corp. v. Ohio Dept. of Adm. Serv. (1993), 90 Ohio App.3d 462; Ford v. Tandy Transp., Inc. (1993), 86 Ohio App.3d 364, 385. "Pre-judgment interest consistently has been awarded - 26 - only where the amount owed under the contract is clear and certain, or is at all times capable of mathematical calculation by application of a formula." Software Clearing House, Inc. v. Intrak, Inc. (1990), 66 Ohio App.3d 163, 172. See, also, McKinney v. White Sewing Machine Corp. (1964), 95 Ohio Law Abs. 368, 376. Where money becomes due under a contract, interest accrues from the time that the money due should have been paid. Body, Vickers & Daniels v. Custom Machine, Inc. (1991), 77 Ohio App.3d 587, 594. The running of interest is not delayed because the debtor denies the debt. Id. In Nursing Staff of Cincinnati, Inc. v. Sherman (1984), 13 Ohio App.3d 328, it was held that the trial judge should have awarded interest to appellant in respect to weekly billings, under the long-held principle that: *** a party's entitlement to prejudgment interest must turn, in major part, upon a determination as to whether the underlying debt is liquidated; if the amount of the debt is clear and certain, the prevailing party is generally entitled to interest from the date the sum became due and owing, and this remains true when the only question raised at trial concerns the party to whom the debt is properly chargeable. Likewise, defendant cites Braverman v. Spriggs (1980), 68 Ohio App.2d 58, 60, where the Court stated: Defendant contends, however, that the claim was unliquidated because defendant denied owing it. Under such a theory, any debtor could avoid paying interest solely by denying that he owed the debt. The running of interest is not delayed because the debtor denies owing the debt, but, rather, is delayed only where the - 27 - amount is unliquidated, that is, the amount of the debt is uncertain. Where the amount of the debt is clear, but the only question raised is whether the Plaintiff is entitled thereto, interest runs on the debt from the time that it was due and payable, as eventually found by the court. In the present case, the amount owed to plaintiff was clear and certain. No one disputes that it was $500,000 that was at stake. Indeed, the parties contemplated interest on the escrow sums because the Option Agreement itself states at 1.10: Grantee, in addition to all other rights and remedies available to it, shall be entitled to a refund of all monies paid by Grantee for this option and an extension hereof (together with all interest accrued thereon) ***. Accordingly, the trial court did not commit prejudicial error in awarding plaintiff prejudgment interest. Assignment of Error IV is overruled. Judgment affirmed. - 28 - 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 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. KARPINSKI, J., and STRAUSBAUGH, J.*, CONCUR. JAMES M. PORTER PRESIDING JUDGE (*Judge Dean Strausbaugh, Retired, of the Tenth Appellate District, Sitting by Assignment.) 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 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 of decision by the .