IN THE SUPREME COURT OF OHIOJACK K. BEATLEY, TRUSTEE,ETAL.,Case No.vs. - PDF document

IN THE SUPREME COURT OF OHIOJACK K. BEAT
IN THE SUPREME COURT OF OHIOJACK K. BEATLEY, TRUSTEE,ETAL.,Case No.vs.KATHERINE KNISLEY,ET AL.,Defendants-Appellees.09-11694RIGINA1On Appeal from the Court ofCourt of Appeals Case No. 08AP-696MEMORANDUMOF APPELLANTS,KATHERINE KNISLEY,JACLYN WANNERIRENE IN OPPOSITION TO JURISDICTIONJames C. Becker (0024203)4380 Braunton RoadColumbus, Ohio 43220-4304Appellees,Kevin E. Humphreys (0069168)545 East Town StreetColumbus, Ohio 43215lawyer@columbus.rr.comAttorney for Appellants,Jack K. Beatley, Trustee,et al.FL.C^©eIUL 27 2009SUPREME COURT OF OHIOI.TABLE OF CONTENTSII. STATEMENT WHY THIS CASE IS NOT OF PUBLICOR GREAT GENERAL INTEREST . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1III. STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . 5A. The Cou
. . . . . . . . . . . . . . 5A. The Court Of Appeals Properly Applied Ohio Law Which Holds That Parol"Integration Clause" Somehow Precluded Extrinsic Evidence OfAppellants' OwnV. CONCLUSION.......................................................... 10VI. CERTIFICATE OF SERVICE . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11II.THIS IS NOT A CASE OF PUBLIC AND GREAT GENERAL INTERESTThe issue appellants seek to present in this appeal has already been resolved bythis Courtand, throughout the years, has been properly applied by Ohio's appellate Courts. InWalters v. First Nat.Bankof Newark(1982), 69 OhioSt.2d 677,this Court set forth the rule thatthe parol evidence rule, because satisfaction of such a condition must occur before a contractappellants have refused to address or recognize theWaltersholding (both before the

FranklinCounty Municipal Court and agai
FranklinCounty Municipal Court and again in the Tenth District Court of Appeals), and they again ignorethat decision in this appeal.Walters,Ohio's appellate Courts have routinely applied itsholding.Hezo v. Jim Marsh Ford,Inc.(1986),Cuyahoga App. No. 52206,unreported;CrawfordSwadChevrolet,Inc.(September19, 2000),Franklin App. No. OOAP-188, unreported (theHezoandCrawfordCourts correctly applied Ohio law and held that parole evidence does not barCecil v. OrthopedicMultispecialty Network, Inc.,5th Dist. No. 2006 CA¶38 ("Ohio [c]ourts have recognized that parol evidence is admissibleCarter v. New Buckeye-1-Redevelop.Corp.(Apr. 2, 1998), 8th Dist. No. 72501 ("Parol evidence is admissible to establishRiggs v. Standard Slag Co.(Nov. 10, 1993), 9th Dist. No.16199parol evidence "is admissible to establish a condition precedent to the existence of av. Hale(App.1950), 1

02 N.E.2d 603, 604, 60 Ohio Law Abs. 559
02 N.E.2d 603, 604, 60 Ohio Law Abs. 559, 560 ("[P]arol**."); Johnson v. McKinney(1950), 90 Ohio App. 111,115 ("The lawrecognizes the right to annex contemporaneous oral conditions precedent to aDependabilt Homes, Inc. v. Haettel(1947), 81 Ohio App. 422, 424, quotingFrankel ChevroletCo. v. Snyder(1930), 37 Ohio App. 378, paragraph one of the syllabus-dating back almost 100 years-establish that extrinsicoccur before a contract comes into existence.Russell v. Daniels-Head and Assoc., Inc.(June 30,BroderickCo. v. Colville(1931), 41 Ohio App. 449, 451-52. See alsoMumaw v. Western & SouthernLife Ins. Co.(1917), 97 Ohio St. 1, 11(holding that a contract is"calls for the happening of some event, or the performance of some act, after the terms of thecontract have been agreed on, before the contract shall be binding on the parties"). Thus, parolevidence establishing a

condition precedent does not modify the
condition precedent does not modify the terms of a written contract, butHiatt v. Giles,2nd Dist. No.-2-1662, 2005-Ohio-6536, ¶31;Coleman v. Fishhead Records, Inc.(2001), 143 Ohio App.3d 537,543 fn. 4.guarantor, (2) pay a $1,460 deposit, and (3) produce a fourth tenant. Thus, appellees created aThe issue that appellant seeks to present in this appeal has already beenas other Ohio appellate Courts on repeated occasions. The ruling of the Court of Appeals merelyapplied those pronouncements to the facts of this case. This Court's time and resources need notbe expended in further reviewing a Court of Appeals decision which merely applied well-established precedent in reversing the trial Court's judgment. For all of the foregoing reasons,III.STATEMENT OF THE CASE AND FACTSet al.,from a unaniinous judgment of the Franklin County Court of Appeals. The Court ofmateria

l fact, including factual issues surroun
l fact, including factual issues surrounding a number of conditions precedent to theformation of the contract, precluded judgment as a matter of law under Civ. R. 56.-3-The underlying facts demonstrate that on January 15 and again on January 18,2006, appellees were shown various Ohio State University area apartments by appellants' agentJanuary 18, 2006 to commence in September 2006 for a Norwich Avenue/Ohio State Universityarea rental unit. In order to induce appellees to sign, appellants' agent expressly stated that three(1) that until appellees submitted and appellants received a guarantee, there would be no lease;(2) that four, not three tenants were required to sign the lease, and until the fourth tenant signed,there would be no lease; and (3) that appellees' offer to lease the premises would not befact, the lease provides that a deposit is necessary and

that a guaranty might be required. Becau
that a guaranty might be required. Becausethe contingencies were made contemporaneously with the signing of the lease, and did notconflict with the lease, but instead, explained several of the lease provisions, the Court ofWalters v. First Nat. Bank ofNewark(1982), 69 Ohio St.2d677; Hezo v. Jim Marsh Ford, Inc.(1986), Cuyahoga App. No. 52206, unreported.IV.InGalmish v. Cicchini,90 Ohio St.3d 22,2000 Ohio7, 734 N.E.2d 782,the OhioSupreme Court discussed the parol evidence rule,stating asfollows:Williston on Contracts(4 Ed.1999)Charles A. Burton, Inc. v. Durkee(1952), 158 Ohio St. 313, 324, 49Ohio Op. 174, 179, 109 N.E.2d 265, 270. 'The parol evidence rule isId.,paragraph one of the syllabus.condition precedent to the existence of a contract.Walters v. First Nat. Bank of Newark(1982),69 Ohio St.2d 677 (a party to a contract may proffer evidence of a contemporan

eous oralagreement when the agreement wa
eous oralagreement when the agreement was signed in order to induce the party to enter into the writtenColeman v. Fishhead Records, Inc.(2001), 143 Ohio App. 3d 537, 758 N.E.2d 694precedent to a recording contract because the condition precedent does not alter the terms of theCecil v. Orthopedic-5-Multispecialty Network, Inc.,5th Dist. No. 2006 CA 00067, 2006-Ohio-4454, ¶38 ("Ohiothe existence of a contract.");Carter v. New Buckeye Redevelop. Corp.(Apr. 2, 1998), 8th Dist.Riggs v. Standard Slag Co.(Nov. 10, 1993), 9th Dist. No. 16199 (holding that parol evidence "isadmissible to establish a condition precedent to the existence of a contract");Roan v. Hale(App.1950), 102 N.E.2d 603, 604, 60 Ohio Law Abs. 559, 560 ("[P]arol evidence is admissibleinstrument ***.");.Iohnson v. McKinney(1950), 90 Ohio App. 111, 115 ("The law recognizesthe right to annex contempora

neous oral conditions precedent to a wri
neous oral conditions precedent to a written contract.");Dependabilt Homes, Inc. v. Haettel(1947), 81 Ohio App. 422, 424, quotingFrankel Chevrolet(1930), 37 Ohio App. 378, paragraph one of the syllabus ("'[p]arol evidence mayobligation under contract."'). Courts admit extrinsic evidence of a condition precedent becauseAppellants have consistently refused to address the holding inWalters v. First(1982), 69 Ohio St.2d 677, either at the Municipal Court or TenthAppellate District levels, instead choosing to erroneously rely onBurton v. Durkee(1952), 158Ohio St. 313, andFishline, Inc. v. Hustwit(1986), Franklin App. No. 86AP-639, unreported.-6-proceeding. The issue inBurtoncentered on whetherpreliminary negotiationsto a contractBurtonCourt properly held those terms were mergedFishline,the Court of AppealsWalters v. First Nat. Bank ofNewark(1982), 69Ohio St.2d 677

.The issue in this proceeding is complet
.The issue in this proceeding is completely different thanBurtonand is properlyWalters v. First Nat. Bank of Newark(1982), 69 Ohio St.2dHezo v. Jim Marsh Ford, Inc.(1986), Cuyahoga App. No. 52206, unreported. As the Court inHezostated:While the [parol evidence] rule prohibits the admissibility of extrinsicthe rule.CharlesA.Burton, Inc. v. Durkee,(1952),158 Ohio St. 313;AmeritrustCo. v. Murray(1984),20 Ohio App.3d 333;CamargoCadillac Co. v. GarfieldEnt. Inc.(3 Ohio App. 3d 435.Exceptions to the rule are attacks to the formation of the contract viz.fraudor misrepresentation defenses. When these defenses areFinomore v. Epstein(1984), 18 Ohio App. 3d 88;Waltersv. FirstNational BankofNewark(1982), 69 OhioSt. 2d 677.Walters,the plaintiff sued her lending institution alleging that the bank's agent-7-matter of law. The trial Court and the Court of Appeals agreed and

held for the bank as a matterof law. On
held for the bank as a matterof law. On further appeal, the Ohio Supreme Court reversed, stating:promise would be said to modify the written agreement, i.e., thepreclude admission of any evidence which tended to show that suchAmerican Guaranty Co. v.(C.A. 6, 1919), 260 F. 897. A party may,a written contract.Sparhawk v. Gorham(1957), 101 Ohio App. 362.Hezo,the plaintiff alleged that the defendant's used car salesman falselywas the moving factor in appellant's decision to purchase the car. Upon learning that the car hadmore than one owner, appellant filed suit alleging that he was "duped" into purchasing this car.evidence rule barred extrinsic statements about how many previous purchasers had owned theCrawford v. Bill Swad Chevrolet, Inc.(September 19, 2000), FranklinWalters v. First National Bank ofNewark); Stormont v. Tenn-River TradingCo. (Apri127, 1995) Fran

klin App. No. 94APG08-1272, unreported (
klin App. No. 94APG08-1272, unreported (defendant car dealer's-8-argument that the parol evidence rule prohibited plaintiff from admitting evidence of any allegedwarranties on "as is" vehicle rejected since a party may produce evidence of a contemporaneousoral agreement when that agreement was made in order to induce the party into entering theCf.II Farnsworthon Contracts(1990) 207-208, Section 7.3,that the parolsatisfaction of such a condition must occur before a contract comes into existence.Russell v.Inc. (June 30, 1987), 4th Dist. No. 1600;Broderick Co. v. Colville(1931), 41 Ohio App. 449,451-52. See alsoMumaw v. Western & SouthernLifeIns. Co.(1917),97 Ohio St. 1, 11 (holding that a contract is not effective until the performance of the conditionperformance of some act, after the terms of the contract have been agreed on, before the contractHiatt v. Giles

,2nd Dist. No. 1662, 2005-Ohio-6536, ¶31
,2nd Dist. No. 1662, 2005-Ohio-6536, ¶31;Coleman v.(2001), 143 Ohio App.3d537,543 fn. 4.precedent. Moreover, appellants do not argue, nor can they contend, that the Court of Appeals-9-V.CONCLUSIONThe Court of Appeals decision was a correct application of well-established Ohiocase law as well as "black letter" hornbook law holding that parol evidence is admissible towritten tenns of the contract, but rather, were congruous to the relevant lease provisions.Accordingly, and for all of the foregoing reasons, appellees respectfully submit that the issueappellants seek to present to this Court has already been adjudicated by this Court and properlyRespectfully submitted,Attorney for Appellees,Katherine Knisley, Jaclyn Wanner andJulianne IreneVI.Opposing Jurisdiction was served by First Class Mail, postage prepaid, on counsel for appelleeshio 43215 this 27t° day of