Yellow Book Sales & Distrib. Co., Inc. v. TK Plumbing Servs., Inc.

2011 Ohio 2518

• Court: Ohio Court of Appeals
• Decided: May 26, 2011
• Docket: 95211
• Status: Published

Opinion

[Cite as Yellow Book Sales & Distrib. Co., Inc. v. TK Plumbing Servs., Inc., 2011-Ohio-2518.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95211

YELLOW BOOK SALES & DISTRIBUTING COMPANY, INC.

PLAINTIFF-APPELLEE

vs.

TK PLUMBING SERVICES, INC., ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: REVERSED AND REMANDED 2

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-677274

BEFORE: E. Gallagher, J., Blackmon, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: May 26, 2011

ATTORNEYS FOR APPELLANTS

Sonja M. Siebert Kirk Stewart Stewart & Siebert, LLP Ohio Savings Building 20133 Farnsleigh Road Shaker Heights, Ohio 44122

ATTORNEYS FOR APPELLEE

Mark J. Sheriff Dale D. Cook Wiles, Boyle, Burkholder, Bringardner Co. 300 Spruce Street Floor One Columbus, Ohio 43215-1173 3

EILEEN A. GALLAGHER, J.:

{¶ 1} Appellants, TK Plumbing Services, Inc. and Terry Kordiac,

appeal the judgment entered against them in the Cuyahoga County Common

Pleas Court on May 24, 2010 granting summary judgment in favor of

plaintiff-appellee, Yellow Book Sales & Distribution Company, Inc. (“Yellow

Book”) and against appellants. Appellants argue that the trial court erred

when it failed to find the subject contract between the parties to be

ambiguous for the purpose of admitting parol evidence, that the court erred

by failing to find the personal guaranty in the contract to be unconscionable,

and that the trial court improperly relied on an illegible contract.

{¶ 2} This case arises from an advertising contract entered into

between A-AA Minuteman, an Ohio corporation, and Yellow Book on

November 10, 2006. Terry Kordiac was the president of A-AA Minuteman

and signed the contract personally. The contract called for monthly

payments of $3,810 for twelve (12) months.

{¶ 3} A-AA Minuteman changed its corporate name to TK Plumbing,

Inc. and sold the name A-AA Minuteman, along with its related phone 4

number, on April 26, 2007. A review of the asset purchase agreement for

this sale reveals that the liability for the Yellow Book contract was not

transferred as part of the sale. That contract remained with TK Plumbing

Services, Inc.

{¶ 4} Yellow Book received an initial deposit of $3,810 under the

contract and brought the present action against TK Plumbing Services, Inc.

and Terry Kordiac for the outstanding balance. The only issue on appeal is

whether appellant Terry Kordiac was properly held to be personally liable for

payments under the contract. Appellants offer no arguments that summary

judgment was inappropriate as to TK Plumbing Services, Inc.

{¶ 5} We find appellant’s third assignment of error to be dispositive of

the present appeal and thus address it out of order. In his third assignment

of error, appellant argues that the trial court improperly relied on an

illegible contract in granting summary judgment.

{¶ 6} Our review of a trial court’s grant of summary judgment is de

novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d

241. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1)

there is no genuine issue of material fact, (2) the moving party is entitled to

judgment as a matter of law, and (3) reasonable minds can come to but one

conclusion and that conclusion is adverse to the nonmoving party, said party 5

being entitled to have the evidence construed most strongly in his favor.

Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196,

paragraph three of the syllabus; Zivich v. Mentor Soccer Club (1998), 82

Ohio St.3d 367, 696 N.E.2d 201. The party moving for summary judgment

bears the burden of showing that there is no genuine issue of material fact

and that it is entitled to judgment as a matter of law. Dresher v. Burt

(1996), 75 Ohio St.3d 280, 662 N.E.2d 264.

{¶ 7} The copy of the contract between the parties presented to the

trial court contains fine print language underneath the individual signature

line bearing appellant’s signature. Due to the poor condition of the copy of

the contract presented to the trial court, it is impossible to decipher the

language beneath the individual signature line. As the entire dispute

between the parties concerns in what capacity appellant signed the contract,

the illegible language beneath this line is crucial to resolving this conflict.

Based on the unique facts of this case, we conclude that the highly relevant

and completely illegible language beneath the individual signature line

presented a genuine issue of material fact such that summary judgment was

inappropriate in this instance.

{¶ 8} Appellant’s third assignment of error is well taken. Appellant’s

remaining assignments of error are moot. The judgment of the trial court is 6

reversed as to appellant Terry Kordiac only, and the case is remanded to the

trial court for further proceedings consistent with this opinion.

It is ordered that Terry Kordiac recover of appellee costs herein taxed.

This 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.

EILEEN A. GALLAGHER, JUDGE

PATRICIA A. BLACKMON, P.J., and MARY J. BOYLE, J., CONCUR