COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70651 FORTRAN PRINTING, INC. : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION PICTURE ME BOOKS, INC., ET AL. : : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-271180. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Harry W. Greenfield, Esq. Rosemary Sweeney, Esq. Buckley King & Bluso 1400 Bank One Center Cleveland, Ohio 44114-2652 For Defendants-appellees: Harry A. Tipping, Esq. Christopher A. Tipping, Esq. Harry A. Tipping Co., L.P.A. One Cascade Plaza, Suite 2200 Akron, Ohio 44308 - 3 - SWEENEY, JAMES D., P.J.: Plaintiff-appellant Fortran Printing, Inc. ("Fortran") appeals from the granting of summary judgment in favor of defendant- appellee Picture Me Books, Inc. ("PMB") in this case which involves an alleged breach of a settlement agreement arising from prior 1 litigation between the parties. For the reasons adduced below, we affirm. A review of the record indicates that the parties' prior litigation, from 1993, involved a dispute concerning the provision by Fortran to PMB of printing services for a line of children's books whose theme related to teams in the National Football 2 League. See Fortran Printing, Inc. v. Picture Me Books, Inc., Cuyahoga County Common Pleas Court Case No. 245246. This prior litigation was settled and dismissed with prejudice on August 4, 1993. The confidential settlement agreement which was executed and filed by the parties in the prior litigation provided in pertinent part the following: * * * WHEREAS, the parties desire to avoid the further expense and delay and settle all of their differences by this agreement; 1 The parties had filed competing motions for summary judgment. The trial court granted PMB's motion and denied Fortran's motion. 2 A portion of this printing service required the use of digitized photographs and computer graphics and the storage of the accompanying images on film discs. - 4 - NOW, THEREFORE, in consideration of the following, be it agreed by the parties that: 1. PMB will pay to Fortran the sum of $21,461.00, by certified check, on or before July 19, 1993, in full satisfaction of all work performed by Fortran. 2. At the option of PMB, after the payment set forth in paragraph 1, Fortran agrees to return, in good condition, all of the film regarding the NFL books, if PMB pays additional consideration of $35,000.00. 3. At the option of PMB and after the payment set forth in paragraph 1, Fortran agrees to retain the film in good condition and should PMB place an order, Fortran further agrees to print any previously ordered NFL books for $.66 a book if PMB supplies the paper, or in the alternative, for $.76 a book should Fortran supply the paper. 4. At the option of PMB, should PMB place an order with Fortran at the price set forth in paragraph 3, for each book ordered by PMB, Fortran agrees to credit PMB with $.10 for each book which PMB may order towards the purchase price of said film which is deemed to be $46,000.00 under this option. Accordingly, if PMB exercises its option and ordered 460,000 books, the film will be returned in good condition to PMB. Should PMB order less than 460,000 books, at PMB's option it may buy NFL books film for $46,000.00 less $.10 credit for each book ordered. 5. The parties agree that they shall not disparage each other or their businesses and the terms of this settlement agreement shall remain confidential and shall not be disclosed. 6. Upon payment, as set forth in paragraph 1, the parties hereby release each other and all their officers, directors, shareholders, employees, agents, heirs, and successors and assigns from any and all claims whatsoever, whether known or - 5 - unknown, except for any claim a party may have under this Settlement Agreement and agree that each will dismiss with prejudice the claims pending in Cuyahoga County Common Pleas Case No. 245246, with each party to bear its own cost and attorney's fees. The parties agree to and have executed the Journal Entry attached hereto. (Emphasis added.) * * * The trial court, in its opinion and judgment entry on the subject dispositive motions, stated the following after citing the language of the settlement agreement: Plaintiff argues the Agreement should be properly interpreted by the court to include the conjunctive "or" between paragraphs 2 and 3, thus requiring PMB to either purchase the film outright "or" indirectly by ordering further printings of the books. In Kelly v. Medical Life Insurance Company (1987), 31 Ohio St.3d 130, 132, the Court held that a presumption exists that the intent of the parties is effected in the language of the contract. The language of the Settlement Agreement is unequivocally clear and unambiguous. Paragraphs 2, 3 and 4 are loaded with such words as "at the option of", "should" and "may." No where (sic) in the language of paragraphs 2, 3 or 4 do the words "or", "must" or "will" appear. Further, based on the clear language of the Agreement, there is not even the remotest indication that PMB agreed to or was required to perform one or the other option. As written, they are simply individual options offered to PMB, who at its discretion "may" in the future exercise one or the other, or do nothing. As a result, plaintiff conjecture that the Settlement Agreement must be read to include the conjunctive "or" between paragraphs 2 & 3 is incorrect. In the alternative, Plaintiff argues that if the Settlement Agreement cannot be read to include the conjunctive "or" then its language - 6 - must be unclear and ambiguous. As a result, Plaintiff contends, they should be allowed to supplement the Agreement with parol evidence in an effort to prove that the Defendant intended to purchase the film under one of the two options. In Russell v. Daniels-Head & Associates, Inc. 1987 WL 13943 (Ohio App.), p. 7., the court held that "[a]mbiguity exists where there is an indistinctness or uncertainty of meaning in the language used in the contract, and such language is reasonably susceptible of more than one meaning." Further, they held that when such ambiguity exists extraneous evidence may be admitted to interpret the contract. Id. In this case, however, the terms of the Agreement are immediately clear upon reading. Logically, it simply does not follow that the Agreement is unclear and ambiguous simply because the Plaintiff failed to execute the Agreement in such a way as to give full effect to his intentions. Thus, since the Agreement is clear and unambiguous on its face, the admission of extraneous evidence is inappropriate in this case. Therefore, the Court, finding the language of the Settlement Agreement to be unequivocally clear and unambiguous, declares the rights of the parties as follows: 1) At Defendants' option, they may purchase the film discs outright for $35,000.00; 2) At Defendants' option, they may purchase the film discs indirectly pursuant to paragraphs 3 & 4 of the Settlement Agreement; 3) the Defendants are not required to exercise either option under the terms of the Agreement; 4) pursuant to Paragraph 3 of the Settlement Agreement, Plaintiff is required to retain the film discs in good condition for the Defendants' use should they desire to place a future order; and - 7 - 5) Plaintiff, under the terms of the Agreement, has no property interest in Defendants' copyrighted materials (the film discs), and therefore, may not appropriate them for their own use. (s)Patricia A. Cleary, Judge Patricia A. Cleary, Judge Journal Vol. 1847 pages 17-19. It is not disputed that PMB paid Fortran $21,461 for printing expenses as required pursuant to paragraph 1 of the settlement agreement when the parties executed the agreement. To date, PMB, contending that it is under no obligation to do so, has not purchased the film discs, which contains PMB's copyrighted illustrations and text, from Fortran. Fortran interprets the settlement agreement as requiring that PMB comply with the payment of $21,461 plus purchase the film discs from Fortran within a reasonable time. It is this failure to purchase the film discs which forms Fortran's basis for the alleged breach of the settlement agreement. Fortran presents two assignments of error for review. These assignments will be discussed jointly since they both address the determination of the motions for summary judgment. I THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE. II - 8 - THE TRIAL COURT ERRED IN DENYING PLAINTIFF- APPELLANT'S MOTION FOR SUMMARY JUDGMENT SEEKING THE ADMISSION OF PAROL EVIDENCE TO PROPERLY INTERPRET THE SETTLEMENT AGREEMENT. This court recently stated the applicable standard of review relative to the first assignment of error sub judice in Szarka v. State Auto Ins. Co. (November 14, 1996), Cuyahoga App. Nos. 70469 and 70621, unreported, at 6-7: The standard of review for a summary judgment ruling was stated in Morton Internatl., Inc. v. Aetna Cas. & Sur. Co. (1995), 106 Ohio App.3d 653, 661: Ohio law provides that before summary judgment can 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 that conclusion, when viewing the evidence in a light most strongly in favor of the party against whom the motion is made, is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; Civ.R. 56(C). Likewise, "[a] motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. In order to determine whether there exists a genuine issue as to any material fact and the moving party is entitled to summary judgment as a matter of law, a court may consider only "the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action ***." Civ.R. 56(C). - 9 - See also State ex rel. Zimmerman v. Tompkins (May 8, 1996), 75 Ohio St.3d 447, 449. Appellant argues that summary judgment was inappropriately granted in favor of PMB on the basis that the settlement agreement's terms and conditions relative to purchase and payment by PMB for the film discs are ambiguous. It is due to this alleged ambiguity in the contract that appellant-Fortran believes parol evidence should have been admitted to aid the trial court in construing the terms and conditions of the agreement and the intent of the parties in the use of those contested terms and conditions. In ruling on the motions for summary judgment, the trial court found no ambiguity in the terms of the settlement agreement, applying the commonly accepted meanings for the contested provisions without resort to parol evidence. See Trivona Corp. v. Pilkington Bros., P.L.C. (1994), 70 Ohio St.3d 271, 276; Shifrin v. Forest City Ent., Inc. (1992), 64 Ohio St.3d 635, 638-639; Aultman Hosp. Assn. v. Community Mut. Ins. Co. (1989), 46 Ohio St.3d 51, 53; Kelly v. Med. Life Ins. Co., supra (the intent of the contracting parties is presumed to reside in the language they chose to employ in the contract); Alexander v. Buckeye Pipeline Co. (1978), 53 Ohio St.2d 241-246 (the interpretation of a written contract is a matter of law for the court, and words in a contract will be given their ordinary meaning unless a manifest absurdity will result or some other meaning is clearly evidenced from the face or overall contents of the contract; only where ambiguity - 10 - exists in the employed language will the court resort to parol evidence to explain the intent of the parties). Our review of the agreement likewise fails to disclose any ambiguity concerning the alleged obligation of PMB to purchase or use the film discs in Fortran's possession. In short, there is no mandatory obligation by PMB to further use, take possession or purchase the film discs stated in the agreement. Instead, PMB has the option, at its sole discretion, to purchase these film discs outright for $35,000 or indirectly pursuant to paragraphs 2 through 4 of the settlement agreement. Having failed to demonstrate ambiguity in the language of the contract, Fortran is additionally precluded from demonstrating fraud on the part of PMB [see Yaroma v. Griffiths (May 18, 1995), Cuyahoga App. No. 67635, unreported (parties to a contract may not prove fraud in the inducement through parol evidence of prior representations where there is a binding and unambiguous contract and the prior representations would directly contradict the terms of the unambiguous contract at issue)], or unjust enrichment on the part of PMB [see S & M Contractors v. Columbus (1982), 70 Ohio St.2d 69, 71, and Hummel v. Hummel (1938), 133 Ohio St. 520, 525-528 (the equitable theory of unjust enrichment operates only where there is no express, unambiguous contract and no demonstration of fraud or bad faith)]. Accordingly, the trial court did not abuse its discretion (1) in granting summary judgment in favor of PMB and (2) not admitting - 11 - parol evidence due to the unambiguous nature of the language employed in the settlement agreement. Assignments overruled. Judgment affirmed. - 12 - 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. Exceptions. PATRICIA A. BLACKMON, J., and DAVID T. MATIA, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE 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 .