COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78107 GLENN D. SIEGLER, ET AL. : : JOURNAL ENTRY PLAINTIFFS-APPELLANTS : : AND v. : : OPINION JOE N. SIMONI, ET AL. : : DEFENDANTS-APPELLEES : : DATE OF ANNOUNCEMENT OF DECISION: MAY 31, 2001 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-386091. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellants: JOEL I. NEWMAN, Esq. PAULA J. GOODRICH, Esq. Newman & Newman 526 Superior Avenue, #711 Cleveland, Ohio 44114 For Defendant-appellees: ROGER M. SYNENBERG, Esq. MARY JO TIPPING, Esq. Synenberg & Marein 222 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 -2- SWEENEY, JAMES D., J.: Plaintiffs-appellants Glenn D. Siegler ( Siegler ) and Scott P. Kenney ( Kenney ) appeal from the denial of their motion for summary judgment and the granting of summary judgment in favor of defendants-appellees Joe N. and Mary Simoni. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the Simonis, who are married to one another, put their commercial property located at 31525 Aurora Road, Solon, Ohio, up for sale. Realty One Commercial represented the defendant-sellers as the listing agent. On June 25, 1997, plaintiffs made an offer to purchase the property. This offer was made using a pre-printed form provided by Realty One. On July 8, 1997, the Simonis made a counteroffer in response to the plaintiffs' offer. On July 18, 1997, the plaintiffs agreed to the counteroffer terms and thereby entered into a purchase agreement contract, again using the pre-printed form provided by Realty One Commercial. The agreed sale price was $950,000, which represents $30,000 in earnest money plus $920,000 in cash (which could be from mortgage proceeds) which was to be deposited in escrow. This purchase agreement stated, in pertinent part, that: (1) all funds and documents were to be deposited in escrow within 90 days of acceptance, which the parties agree was by October 16, 1997; (2) time was of the essence in all provisions of the contract; (3) the contract was subject to the buyers obtaining financing within 90 days of acceptance of the offer, which the parties agree was by October 16, 1997; (4) a Phase I environmental -3- study of the premises was to be completed, at sellers' expense, and submitted to the buyers within 45 days of the acceptance of the contract; (5) buyers had the right to void acceptance of the contract, in writing, within 15 days of receipt of an unfavorable environmental report; and, (6) the buyers were to advise the sellers, in writing, of how title was to be taken. Plaintiffs provided the sellers $30,000 in earnest money using two checks, each in the amount of $15,000 and each made payable to Realty One Commercial. The first earnest money check was dated July 8, 1997, and the second check was dated July 18, 1997. This earnest money ($30,000) was received by Realty One Commercial on July 18, 1997, and negotiated by Realty One Commercial on October 7, 1997. The first check, dated July 8, 1997, was returned on October 7, 1997 for insufficient funds, but was re-presented for payment by Realty One Commercial on Monday, October 13, 1997 (see Realty One interoffice memorandum dated October 10, 1997, a copy of which is attached to the defendants' motion for summary judgment, at Exhibit G, page 5), and successfully negotiated. The date of this successful negotiation is not clear from the record provided. By letter dated October 15, 1997 (one day prior to the date financing was to be obtained by the plaintiffs and such financing documents deposited with the escrow company pursuant to paragraph 7 of the purchase agreement), FirstMerit Bank extended a conditional commitment to provide financing to plaintiffs. This commitment, which would expire in two months unless accepted in writing by plaintiffs (Siegler accepted the conditional commitment, -4- in writing, on October 21, 1997, five days after the closing date of October 16, 1997), was subject to the following four conditions being performed by plaintiffs: 1. Receipt and satisfactory review of a Phase I environmental audit and an appraisal of the property, reflecting a maximum loan to appraised value ratio of 80%. 2. Master lease and financial statement review of A. Siegler & Associates. 3. Renew (sic) of a current personal financial statement of Glenn Siegler. 4. Review of tenant leases for a minimum of 80% of leasable square feet of project. See defendants' motion for summary judgment, at Exhibit F, at pages 30-31 therein. On October 22, 1997 (six days after all monies and documents were to be deposited with the escrow company), Realty One Commercial issued a check to the escrow title company in the amount of $30,000, which represented the plaintiffs' earnest money in the purchase. This earnest money check was received and negotiated by the escrow title company on October 27, 1997, the date the escrow/title account was opened. See defendants' motion for summary judgment, Exhibit I-1 (copy of the title/escrow company's title order worksheet). By letter dated October 30, 1997, the sellers, citing the alleged failure of buyers to obtain financing by October 18, 19971 1Although Mr. Simoni indicated in his letter that the due date was October 18, 1997, which date was in reliance on the 90 days from acceptance language in paragraph 7 of the purchase agreement, this October 18 date is wrong. A calculation of 90 days from the purchase agreement acceptance date (July 18, 1997), commencing on the day following acceptance (July 19, 1997), reflects that all documents and funds necessary for the completion of the transaction -5- for the remaining $920,000, notified the buyers and Realty One Commercial that the purchase agreement was canceled.2 Defendants-buyers filed suit in April, 1998 and was voluntarily dismissed on December 2, 1998. See Cuyahoga County Common Pleas Court Case No. CV-353983; plaintiffs' motion for summary judgment, at 4. On February 19, 1999, Ohio Bar Title Insurance Company, acting as escrow agent, executed a check in the amount of $30,000 to Siegler and Kenney representing the return of their earnest money. See deposition of Theodore Breznai, at 15, a copy of which is attached as Exhibit E to the Simonis' motion for summary judgment. The action was re-filed on June 17, 1999, alleging breach of contract in the sale of the property to plaintiffs, tortious interference with contract with regard to the sale of the property to plaintiffs, and fraud in the transfer of the property by the Simonis to The Simoni Family Limited Partnership. In the alternative, plaintiffs sought specific performance in order to obtain the property for themselves. On October 18, 1999, plaintiffs filed their motion for summary judgment against the sellers. Attached to plaintiffs' motion was the following evidence: (1) an affidavit by plaintiff-Siegler; (2) a photocopy of the July 17, 1997 purchase agreement contract; (3) a photocopy of a letter, dated October 9, 1997, from Siegler to Realty One Commercial asking that the listing agent be sent the were due in escrow by October 16, 1997. 2See Purchase Agreement, at paragraph 12. -6- $30,000 earnest money to the escrow title company and that the environmental study be given to Siegler so that the sales transaction could close as soon as possible, which closing should occur, according to Siegler, on or about October 18, 1997; (4) a photocopy of a letter, dated October 14, 1997, from Siegler to the Simonis expressing Siegler's intention to proceed to closing; (5) a photocopy of a letter, dated October 22, 1997, from Siegler to the Simonis expressing his belief that buyers are ready, willing, and able to conclude the purchase of the property, that any impediments to the closing are the making of the sellers, and that plaintiffs had secured a contingent financing commitment from FirstMerit Bank; (6) a photocopy of a letter, dated October 30, 1997, from Joe Simoni to Siegler expressing his disagreement with much of Siegler's October 22, 1997 letter, and informing Siegler that the sale was canceled because Siegler had failed to obtain financing by October 18, 1997; and, (7) an affidavit by attorney Joel Newman which authenticates certain attached documents relative to the formation of The Simoni Family Limited Partnership, a quitclaim deed (filed November 19, 1998) evidencing the transfer of the property in question from the Simonis to The Simoni Family Limited Partnership, and a December, 1998, memorandum of lease for the subject property by The Simoni Family Limited Partnership which would operate the A.C.T. Tuxedo Warehouse, Inc., at the premises. On February 4, 2000, the Simonis filed their brief in opposition to plaintiffs' motion for summary judgment and motion for summary judgment on their own behalf. Attached to this brief -7- in opposition/motion for summary judgment was the following evidence: (1) a photocopy of the July 18, 1997 purchase agreement contract; (2) a photocopy of plaintiffs' Complaint in the re-filed action sub judice; (3) affidavits by both defendants; (4) a copy of the deposition of the vice-president of Ohio Bar Title Insurance Company (and manger of its Cleveland, Ohio, office), Theodore A. Breznai, whose firm acted as the escrow agent for the parties relative to this property; (5) a copy of the deposition of Peter Collins, a commercial lending officer at FirstMerit Bank who testified to the plaintiffs' attempts to obtain financing at that bank for the property in question; (6) a list of stipulations by the parties (stipulations which were separately filed with the trial court on February 4, 2000); (7) authenticated records concerning the property in question from the Building Department for the City of Solon; and, (8) a copy of the title order dated October 27, 1997, and copies of financial records from Ohio Bar Title Insurance Company. On February 11, 2000, plaintiffs filed with leave of court a reply brief to the Simonis' brief in opposition to summary judgment, attaching thereto a host of documentary evidence, much of which was previously submitted by the parties. Ultimately, on May 4, 2000, the trial court issued the following order using three half-sheet status form entries: [Plaintiffs'] motion for partial summary judgment against [Defendants] Joe and Mary Simoni is denied. Court finds [Plaintiffs] did not make timely payment of earnest money deposit which caused [Defendants] to refrain from expending any monies in furtherance of -8- this contract. In fact, [Plaintiffs] a check in half the amount due on 7-8-97 which was returned for insufficient funds. (See stipulation #3.) No further funds being deposited until well after the closing date. These facts, which are material and not in genuine dispute render summary judgment in favor of [Defendants] appropriate. It is hereby ordered that S.J. be entered in favor of [Defendants] Joe N. Simoni, et al at [Plaintiffs'] costs. FINAL. [Explanation added; where brackets are used, the trial court utilized the Greek characters of pi and delta when referring to the parties.] Journal Vol. 2460, pages 779-780. On May 25, 2000, the trial court amended the order of May 4, 2000, nunc pro tunc, by adding the certification of no just reason for delay pursuant to Civ.R. 54(B). This appeal from the summary judgment ruling presents four assignments of error for review. Since the assignments argue the application of summary judgment relative to the purchase agreement, the assignments will be addressed jointly. The task of reviewing the stated assignments is unnecessarily complicated because appellants, instead of separately arguing each assignment as required by App.R. 16(A)(7), argue the six issues presented without reference to the assignments of error to which each issue relates pursuant to App.R. 16(A)(4). The assignments, each of which attacks the May 4, 2000 granting of summary judgment, provide: I -9- THE JUDGMENT OF THE TRIAL COURT IS CONTRARY TO LAW FOR THE REASON THAT THE OBLIGATION TO DEPOSIT THE EARNEST MONEY FUNDS INTO ESCROW WAS THE OBLIGATION OF THE SELLERS/APPELLEES, NOT THE OBLIGATION OF THE BUYERS/APPELLANTS. II THE JUDGMENT OF THE TRIAL COURT IS CONTRARY TO LAW FOR THE REASON THAT PURSUANT TO O.R.C. S1303.39 AND THE CONTRACT, PAYMENT OF THE EARNEST MONEY CHECKS DISCHARGED APPELLANTS' OBLIGATION TO PAY EARNEST MONEY EFFECTIVE JULY 18, 1997. III THE JUDGMENT OF THE TRIAL COURT IS CONTRARY TO LAW FOR THE REASON THAT THE APPELLEES ARE IN BREACH OF THE SUBJECT CONTRACT, FOR WHICH SUCH BREACH THERE IS NO EXCUSE. IV THE JUDGMENT OF THE TRIAL COURT IS CONTRARY TO LAW FOR THE REASON THAT THERE REMAIN GENUINE ISSUES OF MATERIAL FACT. Appellees, rather than state and address each assignment or each of the issues seriatim, respond with one statement of response, which provides: THE TRIAL COURT WAS CORRECT IN HOLDING THAT THE UNDISPUTED FAILURE BY THE PURCHASERS TO DEPOSIT ANY FUNDS INTO ESCROW ON OR BEFORE THE CLOSING DATE CONSTITUTED A MATERIAL BREACH OF THE PARTIES' CONTRACT AND RENDERED SUMMARY JUDGMENT INAPPROPRIATE WITH REGARD TO THE PURCHASERS AND APPROPRIATE WITH REGARD TO THE SELLERS. Prior to addressing the assignments presented by appellants, we note the following standard of review relative to the granting of a motion for summary judgment: The Ohio Supreme Court has established that summary judgment under Civ.R. 56 is proper when: -10- (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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St. 3d 509, 511, 628 N.E.2d 1377; Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 364 N.E.2d 267. 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, 91 L. Ed. 2d 265, 106 S. Ct. 2548; Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112, 115, 526 N.E.2d 798. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg 1992), 65 Ohio St. 3d 356, 358-59, 604 N.E.2d 138. 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, 570 N.E.2d 1095; Celotex, supra, at 322. 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, 629 N.E.2d 513. Bisbee v. Cuyahoga Cty. Bd. of Elections (Mar. 1, 2001), Cuyahoga App. No. 77629, unreported, 2001 Ohio App. LEXIS 759, at 5-6. In interpreting the terms of the purchase agreement, such terms must be given a just and reasonable construction which carries out the parties' intent. Skivolocki v. East Ohio Gas Co. -11- (1974), 38 Ohio St.2d 244, paragraph one of the syllabus. If the agreement is clear and unambiguous, the court looks only to the plain language of the agreement to determine the parties' rights and obligations; the court only gives effect to the agreement's express terms. Uebelacker v. Cincom Systems, Inc. (1988), 48 Ohio App.3d 268, 271, citing Seringetti Constr. Co. v. Cincinnati (1988), 51 Ohio App.3d 1, 4. A contract does not become ambiguous because its operation may work a hardship upon one party. Ohio Crane Co. v. Hicks (1924), 110 Ohio St. 168, 172. We now turn our attention to the assignments, which center on the deposit, or lack of timely deposit, of funds into escrow. See appellants' brief, issues presented numbers 1-5, at pages 12-26, which arguments regard the deposit of the $30,000 earnest money into the escrow account. The remaining issue presented, number 6, argues that the buyers were excused from performing certain obligations under the purchase agreement due to the breach of certain obligations by the sellers. Issue 6's argument separately addresses (a) earnest money deposits and (b) the lack of depositing the $920,000 balance via plaintiffs obtaining financing. Since Issue 6 is the shortest argument, and the financing aspect is dispositive of the remaining issues involving the earnest money aspects, we will address it first. Appellants maintain that they timely obtained adequate financing on October 15, 1997, as evidenced by the FirstMerit Bank letter of that date which detailed a conditional loan commitment. In the alternative, appellants argue that their attempts to timely -12- obtain adequate financing from FirstMerit Bank were obstructed by the sellers not providing the following items which were part of FirstMerit Bank's conditions for the loan and crucial to obtaining the lender's ultimate support: (1) a preliminary title; (2) a Phase I environmental study; and, (3) an executed leaseback from the sellers. With regard to appellants' assertion that they, in fact, obtained financing by the closing date as required by the terms of the purchase agreement, we conclude that this is a mischaracterization of the operation of the October 15, 1997, FirstMerit Bank letter. This conditional commitment offer to provide a loan was not effective, hence not obtained, until October 21, 1997, the day Siegler accepted the terms of the conditional commitment, which was 5 days past the closing date of October 16, 1997. The financing was not obtained by the buyers by the closing date because buyers, by the closing date of October 16, 1997, also had yet to complete the conditions for obtaining the financing from FirstMerit Bank. Furthermore, the purchase agreement unambiguously mandated that all funds and documents necessary for the completion of this transaction were to be deposited in escrow by the closing date of October 16, 1997. See Purchase Agreement, at paragraph 7. Completed financing loan documents, and the funds ($920,000) representing the balance of the transaction, both of which were necessary to complete the transaction, were not deposited in escrow by the closing date. -13- Appellants, in the alternative, claim that the sellers' failure to cooperate in executing a leaseback agreement, failure to provide an environmental study, and failure to provide a preliminary title, excused buyers from performing their obligation to obtain adequate financing by the closing date because such failures prevented buyers from fulfilling the conditions outlined by FirstMerit Bank for the loan covering the balance due on the transaction. Whatever the merits of these allegations, the appellants overlook other shortcomings which were required for obtaining financing by FirstMerit Bank. First, Siegler did not fulfill the lender's condition that an appraisal of the property, as required by condition number one of the conditional commitment, be given to the lender by the borrower. See Collins' deposition, at 12. Second, there is no evidence that Siegler fulfilled the lender's condition that he provide the lender a current personal financial statement for review, as required by condition number three of the conditional commitment. See Collins' deposition, at 19-20. Thus, these shortcomings by Siegler, irrespective of the sellers' alleged failures, doomed the buyers' attempt to obtain financing from FirstMerit Bank (and deposit the funds and documents into escrow) by the closing date of October 16, 1997. Accordingly, the sellers were within their rights to cancel the transaction due to the failure of buyers to fulfill the terms of the agreement relative to the failure of the buyers to obtain financing. See Purchase Agreement, at paragraph 12. The arguments surrounding the earnest money and its deposit/non-deposit into -14- escrow are rendered moot, and need not be discussed, by virtue of the determination concerning the financing issue. See App.R. 12(A)(1)(c). The trial court did not err in granting summary judgment due to the failure of the buyers to obtain financing, and deposit the balance due on the transaction, by the closing date. Assignments overruled. Judgment affirmed. -15- It is ordered that appellees recover of appellants 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 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. DIANE KARPINSKI, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR. ______________________________ JAMES D. SWEENEY 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .