[Cite as Underwood v. Boeppler,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

RAYMOND UNDERWOOD, :

Plaintiff-Appellee, : CASE NO. CA2014-02-055

: OPINION - vs - 1/20/2015 :

ERIC BOEPPLER, et al., :

Defendants-Appellants. :

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2912-06-2204

Katzman Logan Halper & Bennett, Kenneth B. Flacks, 9000 Plainfield Road, Cincinnati, Ohio 45236 and Walter I. Rubin, 3194 Dot Drive, Cincinnati, Ohio 45213-1008, for plaintiff- appellee

Brandabur & Bowling Co., L.P.A., Michael J. Brandabur, 315 South Monument Street, Hamilton, Ohio 45011, for defendants-appellants

RINGLAND, P.J.

{¶ 1} Defendants-appellants, Eric Boeppler, The Eric Boeppler Family Partnership,

The Eric Boeppler Family Limited Partnership, A Savannah Nite Limousine Service, and The

Eric & Lynn Boeppler Family Limited Partnership (collectively Boeppler), appeal a jury verdict

rendered in the Butler County Court of Common Pleas in favor of plaintiff-appellee, Raymond Butler CA2014-02-055

Underwood, on a breach of contract claim.1

{¶ 2} This case arises out of the sale of a 2007 Dodge Charger Limousine (Charger

Limo). Boeppler operates a limousine service, A Savannah Nite Limousine Service. Eric

Boeppler initially met Underwood in 2007 when Underwood was a customer of A Savannah

Nite. Underwood also later became a part-time driver for Boeppler. In early 2010, Boeppler

and Underwood began discussing the possible purchase of a limousine. Around July 8,

2010, Underwood and Boeppler entered into a written agreement, wherein Underwood

purchased the Charger Limo from Boeppler for a purchase price of $51,000. The Agreement

stated in part:

There will be a $30,000.00 deposit paid to The Eric Boeppler Family Limited Partnership by Raymond Underwood. The remaining balance of $21,000.00 will be paid over time. In which we will keep the limousine in our possession and the title in our possession. Once the limousine is paid off there will be a 30% and 70% split. The 30% will go to The Eric Boeppler Family Limited Parnership and the 70% will go to Raymond Underwood. Raymond Underwood will have to have a regular automobile insurance policy on the limousine. The Eric Boeppler Family Limited Partnership will keep the livery insurance policy on the limousine and the cost of that policy will be the responsibility of Raymond Underwood. The vehicle is a 2007 Dodge Charger Limousine, color is orange, mileage is 24,000, purchase price is $51,000.00. [sic]

{¶ 3} On June 13, 2012, Underwood filed a complaint against Boeppler asserting

several claims related to the sale of the Charger Limo, including (1) breach of contract, (2)

fraud, (3) conversion, (4) request for accounting, (5) civil conspiracy, and (6) recession of the

contract. Boeppler filed an answer, as well as a counterclaim asserting one claim for breach

of contract against Underwood. The case proceeded to a jury trial wherein the parties each

claimed the other breached the contract relating to the Charger Limo.

{¶ 4} At trial, the parties agreed on several facts: (1) the purchase price was $51,000;

1. For ease of discussion, we will refer to appellants collectively as Boeppler, and where necessary, will refer to appellant, Eric Boeppler, by name. -2- Butler CA2014-02-055

(2) of that $51,000, Underwood had paid $41,215; and (3) the written agreement did not

contain all terms agreed upon by the parties. Both Eric Boeppler and Underwood testified

that the contract included several oral terms which were not found in the written agreement.

However, the parties' view of these oral provisions differed significantly. Specifically, the

following two provisions were at issue: (1) how, if at all, revenue would be split while

Underwood was paying the balance of the purchase price; and (2) the payment of livery

insurance for the Charger Limo.2

{¶ 5} Essentially, Underwood asserted the parties intended to split revenue for the

Charger Limo 70/30 while he was still making payments on the vehicle. According to

Underwood, 70 percent of the revenue belonged to Underwood and was to be applied

towards the purchase price of the Charger Limo and 30 percent of the revenue belonged to

Boeppler and was to cover the maintenance and livery insurance costs. Underwood

therefore argued Boeppler breached the terms of the contract by not applying any of the

receipts from the rental of the Charger Limo, pursuant to the agreed 70/30 split. Eric

Boeppler, however, testified it was agreed that Boeppler would receive 100 percent of the

revenue, with no credit being applied to Underwood until the vehicle was paid in full.

Boeppler also presented testimony that the parties agreed Underwood would pay a flat rate

of $4,600 annually for the livery insurance, regardless of its actual cost. Although Boeppler

stipulated that Underwood had paid $41,215 of the purchase price, Boeppler contended

Underwood breached the contract as he had failed to pay the remaining balance of the

purchase price or pay for the cost of maintenance and livery insurance for the vehicle.

{¶ 6} After hearing all the evidence, the jury found in favor of Underwood on his

breach of contract claim and against Boeppler on Boeppler's counterclaim. Underwood was

2. At trial, it was testified that livery insurance is a type of insurance required for companies which offer transportation services for hire.

-3- Butler CA2014-02-055

awarded $41,215 in damages. Boeppler filed this timely appeal, raising one assignment of

error for review:

{¶ 7} THE JURY'S VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AS THEY FAILED TO FOLLOW THE INSTRUCTIONS.

{¶ 8} In their sole assignment of error, Boeppler asserts that the jury's decision in

favor of Underwood on his breach of contract claim and on Boeppler's counterclaim was

against the manifest weight of the evidence because the evidence presented at trial

demonstrated that Underwood breached the parties' contract by failing to pay the full

purchase price and by failing to pay the livery insurance on the Charger Limo. Boeppler

claims that the written contract is clear that the 70/30 split began after the Charger Limo was

paid in full. In addition, Boeppler asserts the contract is similarly clear that Underwood was

responsible for the cost of livery insurance. Boeppler claims that because the contract was

clear regarding these two terms, Underwood's testimony attempting to vary these express

terms violated the parol evidence rule. We find no merit to these arguments.

{¶ 9} As an initial matter, we must first address Boeppler's contention that the trial

court erred and violated the parol evidence rule in admitting extrinsic evidence to explain the

terms of the parties' contract. The parol evidence rule is a rule of substantive law that

prohibits parties to a contract from later contradicting the express terms of the contract with

evidence of other alleged or actual agreements. Turner v. Langenbrunner, 12th Dist. Warren

No. CA2003-10-099,

, ¶ 21. It provides that "absent fraud, mistake or other

invalidating cause, the parties' final written integration of their agreement may not be varied,

contradicted or supplemented by evidence of prior or contemporaneous oral agreements, or

prior written agreements." D & H Autobath, LLC. v. PJCS Properties I, Inc., 12th Dist.

Fayette No. CA2012-05-018,

.

{¶ 10} The parol evidence rule only bars the admission of evidence of an oral -4- Butler CA2014-02-055

agreement when there is a final written integration of the parties' agreement. Nguyen v.

Chen, 12th Dist. Butler No. CA2013-10-191,

, ¶ 41, citing Galmish v.

Cicchini,

, (2000) ("[t]he parol evidence rule applies * * * only to

integrated writings"). Integration is the act of embodying the complete terms of an agreement

in a writing.

. However, if the integration is only a "partial integration," then the

writing does not fully express the parties' intent. Williams v. Spitzer Autoworld Canton, L.L.C.

,

(Cupp, J., concurring); Russell v. Daniels–

Head & Assocs., Inc. 4th Dist. Scioto No. 1600,

, *4 (June 30, 1987). "The

rule of partial integration is a well-established exception to the parol evidence rule and is

invoked where the entire agreement has not been reduced to writing. Where a contract is

partly written and partly oral, parol evidence is admissible to prove the oral terms." Hunter v.

Conner, 12th Dist. Warren No. 443,

, *2 (Oct. 21, 1981).

{¶ 11} In the present case, both Boeppler and Underwood presented testimony that

the written agreement did not include all of the terms agreed to by the parties. It is clear that

both parties resorted to the presentation of extrinsic evidence in effort to explain the contract.

Both parties testified regarding provisions which were not included in the written agreement

but were allegedly agreed to verbally and such testimony did not contradict what was in the

written agreement. This contract presents the scenario where the contract is partly written

and partly oral. Accordingly, as the agreement did not embody the complete terms agreed to

by the parties, the parol evidence rule did not preclude extrinsic evidence to prove the oral

terms, and the trial court did not err in admitting such evidence. In this case, it was proper

and necessary to admit evidence regarding the oral terms of the parties' contract in order to

reach the merits of the parties' respective claims. We further note that Boeppler did not

object to the extrinsic evidence offered by Underwood at trial as improper parol evidence.

Rather, Boeppler participated in eliciting such testimony from Underwood and Eric Boeppler -5- Butler CA2014-02-055

himself testified regarding terms of the contract which he claimed were agreed to orally. On

this record, we find no violation of the parol evidence rule. We therefore turn to whether the

judgment is supported by the weight of the evidence.

{¶ 12} When evaluating whether a judgment is against the manifest weight of the

evidence in a civil case, the standard of review is the same as in the criminal context. Aztec

Internatl. Foods, Inc. v. Duenas, 12th Dist. Clermont No. CA2012-01-002,

, citing Eastley v. Volkman,

,

. "[W]e weigh the

evidence and all reasonable inferences, consider the credibility of witnesses, and determine

whether in resolving conflicts in the evidence, the finder of fact 'clearly lost its way and

created such a manifest miscarriage of justice that the [judgment] must be reversed and a

new trial ordered.'" Marinich v. Lumpkin, 12th Dist. Warren No. CA2011-11-124, 2012-Ohio-

4526, ¶ 20, quoting

. In weighing the evidence, we are mindful of the

presumption in favor of the finder of fact.

. "If the evidence is susceptible of

more than one construction, the reviewing court is bound to give it that interpretation which is

consistent with the verdict and judgment, most favorable to sustaining the verdict and

judgment."

, quoting Seasons Coal Co., Inc. v. Cleveland,

(1984). "A reviewing court should not reverse a decision simply because it holds a

different opinion concerning the credibility of the witnesses and evidence submitted before

the trial court." Roberts v. Mike's Trucking, Ltd., 12th Dist. Madison Nos. CA2013-04-011

and CA2013-04-014,

, quoting Seasons Coal Co. at 81. A court of

appeals panel must act unanimously to reverse a jury verdict on the weight of the evidence.

Purcell v. Schaefer, 12th Dist. Preble No. CA2013-09-007,

, citing

.

{¶ 13} In order to establish a breach of contract claim, a plaintiff must prove (1) the

existence of a contract, (2) plaintiff fulfilled its contractual obligations, (3) defendant failed to -6- Butler CA2014-02-055

fulfill its contractual obligations, and (4) plaintiff incurred damages as a result. Chen, 2014-

Ohio-5188 at ¶ 43. In the instant case, Boeppler contends Underwood was not entitled to

judgment in his favor as the weight of the evidence demonstrated that Underwood did not

fulfill his contractual obligations and therefore breached the parties' agreement. Specifically,

Boeppler asserts Underwood breached two separate provisions of the contract: (1) failing to

pay the full $51,000 purchase price; and (2) failing to pay the cost of the livery insurance.

Boeppler further argues that the jury failed to follow the jury instructions in reaching its verdict

as the instructions "required as a condition precedent for finding in favor of Underwood, that

they find Underwood was not in breach of contract," and the evidence presented at trial

demonstrated Underwood had, in fact, breached the contract.

{¶ 14} In arguing that the evidence demonstrated Underwood failed to pay the full

$51,000 purchase price, Boeppler asserts that the parties' written agreement clearly states:

"Once the limousine is paid off there will be a 30% and 70% split." Boeppler asserts that this

provision of the written agreement prevented splitting revenue until the Charger Limo was

paid off. Moreover, Boeppler contends that even if the jury found the parties intended

revenue to be split 70/30 at the outset of the relationship, the evidence demonstrated

Underwood still failed to pay the full purchase price.

{¶ 15} Based on our review of the record, we find there is competent, credible

evidence to support the jury's finding that Underwood did not breach the contract and we find

the jury's determination that Underwood paid the $51,000 purchase price is not against the

manifest weight of the evidence. As an initial matter, we note that the written agreement only

mentions the manner in which revenue would be split once the Charger Limo was paid off.

The Agreement is silent with regard to how revenue would be split prior to the Charger Limo

being paid in full. Accordingly, we find no merit to Boeppler's assertion that the written

agreement dictated a result in its favor. -7- Butler CA2014-02-055

{¶ 16} At trial, Underwood testified the parties agreed that revenue generated by the

Charger Limo would be split 70 percent to him and 30 percent to Boeppler, both while he was

making payments on the vehicle and once the vehicle was paid off. Underwood explained

how the parties agreed on this arrangement. Underwood testified that initially the parties

agreed he would make a cash down-payment of $25,000 and obtain financing from his bank

for the remaining $26,000 of the purchase price. Upon payment of the $51,000, Underwood

would own the vehicle outright, title would be placed in his name, and he would carry the

insurance. Underwood testified the parties initially agreed that Boeppler would rent out the

Charger Limo as part of Boeppler's fleet, revenue would be split 75 percent to Underwood

and 25 percent to Boeppler, and Boeppler would perform all maintenance. However,

Underwood was unable to obtain financing through his bank. Underwood testified that Eric

Boeppler then agreed to sell the Charger Limo if Underwood would increase the down-

payment to $30,000, and increase the revenue split from 75 percent and 25 percent to 70

percent and 30 percent. According to Underwood, Eric Boeppler explained he would agree

to the 5 percent change in order to pay for insurance and maintenance on the Charger Limo.

Underwood testified he agreed to this arrangement and believed that all the revenue

generated by the Charger Limo would go to Boeppler and Boeppler would then apply 70

percent of the funds to the balance of the purchase price and 30 percent of funds would be

applied to the cost of maintenance and insurance. Finally, Underwood testified that once the

Charger Limo was paid in full, it was his understanding that he would assume the cost of any

insurance or maintenance, and revenue would continue to be split 70 percent to Underwood

and 30 percent to Boeppler.

{¶ 17} Eric Boeppler, on the other hand, testified revenue was not to be split until after

Underwood paid off the Charger Limo. According to Eric Boeppler, Boeppler was entitled to

100 percent of the revenue generated by the Charger Limo until Underwood paid the full -8- Butler CA2014-02-055

purchase price, and only once it was paid off would the revenue be split 70 percent to

Underwood and 30 percent to Boeppler. The only deviation to this split was if Underwood

personally obtained a booking on the Charger Limo rather than it being booked by A

Savannah Nite. According to Boeppler, in that situation, Underwood was entitled to 100

percent of the revenue.

{¶ 18} After reviewing the evidence presented at trial, we find there is substantial

evidence to support the jury's finding that the parties intended to split the revenue from the

outset of the contract. Although Boeppler claimed there was to be no revenue split until the

vehicle was paid in full, the conduct by both parties established otherwise. At the outset of

the contract, Boeppler forwarded copies of the call sheets and contracts related to the

Charger Limo. From this information, Underwood was able to calculate what he believed

should be credited to his balance owed on the Charger Limo. Underwood then sent

Boeppler his own reconciliation of the account based on these documents. However, this

practice only lasted a few months. Eric Boeppler admitted that he later quit sending copies of

the call sheets and contracts to Underwood due to the fact that personal customer

information was included on these documents. Underwood entered into evidence a text

message exchange between himself and Eric Boeppler in March 2012 wherein Underwood

requested to see call sheets and contracts for the Charger Limo for 2011 and 2012.

However, the two never met and the information was not provided to Underwood. Finally,

and most significantly, Underwood testified that on August 27, 2011, Eric Boeppler informed

him the Charger Limo was "paid in full." From this evidence, we find the jury could have

reasonably concluded that the parties agreed to a revenue split even before the vehicle was

paid off and that based on the split in revenue, the Charger Limo had been paid for as of

August 27, 2011.

{¶ 19} Boeppler contends that even if the jury found the parties intended revenue to

-9- Butler CA2014-02-055

be split 70/30 at the outset of the relationship, the evidence presented at trial still

demonstrated Underwood failed to pay the full purchase price. Boeppler places great

emphasis on the fact that it presented uncontroverted testimony and evidence that the

revenue generated by the Charger Limo for 2010 through 2012 totaled $8,301.85. Boeppler

therefore argues that even if 70 percent is applied to this figure and then added to

Underwood's previous payments of $41,215, the total payments made by Underwood would

be $49,516.85, leaving him with a deficiency of $1,483.15 on the $51,000 purchase price.3

However, the mere fact that testimony is uncontroverted does not necessarily require the jury

to accept the evidence. Cropper v. Jewell, 12th Dist. Clermont No. CA2008-09-088, 2009-

Ohio-3683, ¶ 9. Rather, the jury is free to believe, all, part, or none of the testimony of the

witnesses which appeared before it. Roberts v. Mike's Trucking, Ltd., 12th Dist. Madison

Nos. CA2013-04-011 and CA2013-04-014,

.

{¶ 20} In addition, Underwood presented testimony at trial that indicated the Charger

Limo went on several more runs than reflected in Boeppler's revenue sheets. Eric Boeppler

stated he no longer had the original call sheets and contracts as the company's policy was to

destroy such documents every 30, 60 or 90 days. Accordingly, the only evidence of the

revenue generated by the Charger Limo during 2010 through 2012 was Boeppler's own

summary records. Moreover, as mentioned previously, Underwood testified that Boeppler

told him on August 27, 2011, that the Charger Limo was paid in full. In light of the foregoing,

the jury's finding that Underwood paid the full $51,000 purchase price is not against the

manifest weight of the evidence. It is clear that the jury found Underwood's version of the

events more credible than Eric Boeppler's version of the events. The jury in this case was in

3. At trial, the parties agreed that the revenue split was to be applied to the base rate of the rental of the Charger Limo. The base rate was determined by taking the total cost charged to the customer and deducting tax, fuel, and the driver's gratuity. - 10 - Butler CA2014-02-055

a better position to view the witnesses, observe their demeanor, and assess their credibility.

{¶ 21} Boeppler also argues on appeal that the jury's verdict was against the manifest

weight of the evidence because the evidence at trial demonstrated Underwood breached the

parties' contract by failing to pay the cost of livery insurance. Again, Boeppler asserts the

language of the written agreement is clear and Underwood was responsible for the cost of

livery insurance. Boeppler is correct that the agreement states that Underwood is

responsible for the cost of livery insurance and Underwood does not dispute that he was

responsible for this expense. The parties do dispute, however, the manner in which the livery

insurance was to be paid and the actual cost of this insurance.

{¶ 22} At trial, Eric Boeppler testified that the parties orally agreed Underwood would

pay $4,600 annually for livery insurance. Eric Boeppler further testified Underwood never

made a payment on this insurance in 2010, 2011, or 2012. Eric Boeppler stated he informed

Underwood by letter in December 2011, and by text message in March 2012, that

Underwood owed Boeppler the cost of insurance for the last "two years." Underwood,

however, testified the cost of the livery insurance for the Charger Limo was to be covered by

the revenue split. According to Underwood, the 5 percent change from 25 percent to 30

percent in the revenue split was to cover the cost of the livery insurance. On appeal,

Boeppler asserts that the 5 percent change would "come no where [sic] near covering

insurance and maintenance" on the vehicle.

{¶ 23} In the present case, although there was competing evidence presented, the jury

believed Underwood's testimony that the parties had contracted and agreed that the cost of

livery insurance would be paid by way of splitting the revenue generated by the Charger

Limo. We find no indication in the record that the jury clearly lost its way and created a

manifest miscarriage of justice in finding Underwood paid the cost of livery insurance in this

manner. It is clear that the jury found Underwood's version of the event's more credible than - 11 - Butler CA2014-02-055

that proffered by Boeppler. Credibility is primarily a matter for the trier of fact as the trier of

fact is in a better position to judge the credibility of the witness and give weight to the

evidence. This court will not reverse a jury decision simply due to contrary evidence. See

Roberts,

.

{¶ 24} Based on the record in this case, and after weighing the inferences and

examining the credibility of the witnesses, we cannot find that the jury clearly lost its way so

as to create a manifest miscarriage of justice requiring the verdict to be reversed. In addition,

as the jury's verdict finding Underwood was not in breach of the parties' contract is supported

by the weight of the evidence, we cannot find the jury failed to follow the instructions given in

this case. Accordingly, appellants' sole assignment of error is overruled.

{¶ 25} Judgment affirmed.

HENDRICKSON and PIPER, JJ., concur.

- 12 -