[Cite as Lakeside Produce Distrib. v. Wirtz,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

LAKESIDE PRODUCE DISTRIBUTION, INC., ET AL., :

Plaintiffs-Appellants, : No. 109460 v. :

AMY WIRTZ, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 25, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-919970

Appearances:

Thrasher Dinsmore & Dolan, L.L.P., and Leo M. Spellacy, Jr., for appellants.

Gallagher Sharp L.L.P., Timothy T. Brick, and Lori E. Brown, for appellees.

EILEEN T. GALLAGHER, J.:

Plaintiffs-appellants, Terrence Granzier and Lakeside Produce

Distribution, Inc. (collectively “plaintiffs”), appeal the dismissal of their refiled complaint against defendants-appellees, Amy Wirtz and Wirtz Legal Solutions

L.L.C. (collectively “Wirtz”). Lakeside claims the following error:

The trial court erred in finding that the collaborative law agreement was not an enforceable contract and dismissing the complaint under Civ.R. 12(B)(6).

After careful review of the record and relevant case law, we affirm the

trial court’s judgment.

I. Facts and Procedural History

This breach-of-contract case arose as a result of divorce proceedings

between Terrence Granzier (“Mr. Granzier”) and his ex-wife (“Mrs. Granzier”). In

an effort to terminate their marriage without litigation, Mr. and Mrs. Granzier opted

to use the collaborative family law process set forth in R.C. 3105.41 et seq. The

collaborative law process requires that both parties be represented by counsel, who

are retained solely for purposes of settlement negotiations and not for purposes of

litigation. Wirtz represented Mrs. Granzier.

In October 2015, the Granziers entered into a “Collaborative Law

Agreement” (“the Agreement”) to negotiate a settlement of their divorce. The

Agreement contains the following clause: “We will work to protect the privacy,

respect and dignity of all involved, including parties, attorneys and consultants.”

The final provision of the Agreement promises that “both parties and lawyers hereby

pledge to comply with and to promote the spirit and written word of this document.”

(Collaborative Law Agreement attached to complaint p. 4.) The Granziers and their attorneys signed the Agreement. The Granziers

also signed a separate addendum to the Agreement, which was not signed by

counsel. The addendum states that one of the “possible benefits” of the Agreement

is that “[a]ll information is shared fully in a private forum, on request of either party,

and all negotiations take place directly, face-to-face.” (Addendum to Collaborative

Law Agreement attached to the complaint, p. 2.) Based on these agreements, Mr.

Granzier believed that any information provided during the collaborative law

process would remain confidential. (Complaint ¶ 17-19.)

Mr. Granzier is the sole shareholder of Lakeside Produce Distribution,

Inc. (“Lakeside”). Lakeside provides salad manufacturers with a year-round supply

of bulk cabbage. Mr. Granzier was concerned that if news of his divorce became

public, his competitors, particularly Cabbage, Inc., would use the information for

their own advantage and “place doubts in the minds of Lakeside’s growers and

customers as to the Lakeside’s liquidity.” (Complaint ¶ 16.)

Mr. Granzier discovered during the collaborative law process that Wirtz

had shared information about the Granziers’ divorce and Lakeside to members of

Cabbage, Inc., with whom Wirtz shared office space. Consequently, in June 2018,

plaintiffs filed a complaint against Wirtz, asserting claims of breach of contract,

misappropriation of trade secrets, and intentional interference with business

relationships. The complaint alleged, among other things, that Wirtz breached the

Agreement by disclosing confidential information regarding Mr. Granzier’s divorce to Cabbage Inc. Wirtz filed a motion to dismiss. The trial court granted the motion

to dismiss, in part, and dismissed the breach-of-contract claim.

In order to immediately appeal the decision, plaintiffs voluntarily

dismissed the complaint (i.e., the remaining claims for misappropriation of trade

secrets and intentional inference with business relationships). Thereafter, plaintiffs

refiled the complaint, alleging only the breach-of-contract claim. The refiled

complaint alleged that Mr. Granzier informed Wirtz of the need for keeping his

divorce confidential, particularly with regard to Lakeside’s competitors, and that

Wirtz confirmed that the communications would be kept secret. (Complaint ¶ 15.)

The complaint further alleged that Wirtz disclosed confidential information

concerning the Granzier’s divorce to members of Cabbage, Inc. and that, based on

information provided by Wirtz, Cabbage, Inc. told growers and customers that it was

considering purchasing Lakeside. (Complaint ¶ 29, 33, 35.) Lakeside alleges that it

lost business and profits as a result of these statements. (Complaint ¶ 47.)

Wirtz again moved to dismiss the complaint, pursuant to

Civ.R. 12(B)(6), claiming plaintiffs failed to state claim on which relief could be

granted. Wirtz argued that (1) there was no enforceable confidentiality provision in

the Agreement, and that (2) because Lakeside was not a party to the Agreement, it

lacked standing to assert a breach-of-contract claim. The trial court agreed and

dismissed the complaint. Plaintiffs now appeal the trial court’s judgment. II. Law and Analysis

A. Standard of Review

The trial court dismissed the complaint pursuant to Civ.R. 12(B)(6). A

Civ.R. 12(B)(6) motion to dismiss for failure to state a claim on which relief can be

granted “is procedural and tests the sufficiency of the complaint.” State ex rel.

Hanson v. Guernsey Cty. Bd. of Commrs.,

,

(1992), citing Assn. for Defense of Washington Local School Dist. v. Kiger,

,

(1989).

A trial court’s review of a Civ.R. 12(B)(6) motion to dismiss is limited

to the four corners of the complaint along with any documents properly attached to,

or incorporated within, the complaint. Glazer v. Chase Home Fin. L.L.C., 8th Dist.

Cuyahoga Nos. 99875 and 99736,

. An appellate court reviews

de novo a trial court’s decision granting a motion to dismiss under Civ.R. 12(B)(6).

Perrysburg Twp. v. Rossford,

,

,

,

¶ 5.

In our review of a Civ.R. 12(B)(6) motion to dismiss, we must accept

the material allegations of the complaint as true and make all reasonable inferences

in favor of the plaintiff. Jenkins v. Cleveland, 8th Dist. Cuyahoga No. 104768, 2017-

Ohio-1054, ¶ 8, citing Johnson v. Microsoft Corp.,

, 2005-Ohio-

4985,

, ¶ 6. For a party to ultimately prevail on the motion, it must

appear from the face of the complaint that the plaintiff can prove no set of facts that would justify a trial court granting relief.

citing O’Brien v. Univ. Community

Tenants Union, Inc.,

,

(1975).

B. Breach of Contract

In the sole assignment of error, plaintiffs argue the trial court erred in

dismissing the complaint for failure to state a claim on which relief could be granted.

They contend the court erroneously concluded there was no enforceable

confidentiality provision in the parties’ agreement.

To state a claim for breach of contract, the plaintiff must allege (1) the

existence of a binding contract, (2) the nonbreaching party performed his or her

contractual obligations, (3) the other party failed to fulfill its contractual obligations

without legal excuse, and (4) the nonbreaching party suffered damages as a result of

the breach. Cynergies Consulting, Inc. v. Wheeler, 8th Dist. Cuyahoga No. 90225,

, citing All Star Land Title Agency, Inc. v. Surewin Invest.,

Inc., 8th Dist. Cuyahoga No. 87569,

.

The parties’ Agreement and addendum were attached to the refiled

complaint and incorporated therein. After reviewing the Agreement, the trial court

concluded that the first element of a contract claim was not met because there was

no binding confidentiality agreement. The trial court found that the language in the

Agreement was too aspirational to constitute an enforceable agreement.

To be enforceable, a contract must have an offer, acceptance,

consideration, and a manifestation of mutual assent. Kostelnik v. Helper,

,

,

, ¶ 16. A valid offer, the acceptance of which would create an enforceable contract, must contain terms that are “reasonably

certain.” Restatement of the Law 2d, Contracts, Section 33(1) (1981) (“Even though

a manifestation of intention is intended to be understood as an offer, it cannot be

accepted so as to form a contract unless the terms of the contract are reasonably

certain.”); Alligood v. Procter & Gamble Co.,

,

(1st Dist. 1991) (A valid contract must be specific as to its essential terms.).

To prove the existence of a contract, the proponent of the contract

must show that “both parties consented to the terms of the contract, that there was

a ‘meeting of the minds’ of both parties, and that the terms of the contract are

definite and certain.” Nilavar v. Osborn,

,

(2d Dist. 2000), quoting McSweeney v. Jackson,

,

(4th Dist. 1996).

The terms of a contract are sufficiently certain if they “‘provide a basis

for determining the existence of a breach and for giving an appropriate remedy.’”

Mr. Mark Corp. v. Rush, Inc.,

,

(8th

Dist. 1983), quoting Restatement of the Law 2d, Contracts, Section 33, at 92 (1981).

See also In re Estate of Bohl,

,

(12th Dist.) (“An

agreement is sufficiently certain for enforcement if it provides a basis for

determining the existence of a breach and for giving an appropriate remedy.”).

As previously stated, the Agreement provided that the parties and

their attorneys “will work to protect the privacy, respect and dignity of all involved,

including parties, attorneys and consultants.” The last provision of the Agreement states that “[b]oth parties and lawyers hereby pledge to comply with and to promote

the spirit and written word of this document.”

The trial court concluded that the privacy language in the Agreement

was too general and aspirational to constitute an enforceable confidentiality

provision. In reaching its conclusion, the trial court relied on Ullmo v. Gilmour

Academy,

(6th Cir. 2001).

In Ullmo, the Sixth Circuit affirmed an order granting summary

judgment in favor of a defendant-school on contract and fraud claims based on

statements contained in the school’s student/parent handbook. The school stated

in the handbook that its mission was to “search for excellence in each person.” It

also stated that its teaching tradition involved “respecting pupils’ differing abilities

and styles of learning.”

. Parents of a student sued the school for breach

of contract, alleging that it failed to effectively teach their child within his

disabilities, as evidenced by his poor grades.

In affirming the award of summary judgment in favor of the school,

the Sixth Circuit noted that the handbook lacked any “description of the faculty’s

teaching methods or any promise as to the manner in which the faculty will

accommodate a student’s learning disabilities.”

. The court also found that

“[n]o standards [we]re set forth to determine whether [the school] has worked for

the full development of its students or respected its students’ differing abilities.”

The court concluded, therefore, that the language in the handbook promising to

accommodate a student’s learning disabilities was “aspirational in nature” and not specific enough to create enforceable terms of a contract.

. The court

explained:

Indefinite and aspirational language does not constitute an enforceable promise under Ohio law. The Ohio Supreme Court has made clear that vague language will not warrant judicial enforcement, stating that “[a] court cannot enforce a contract unless it can determine what it is.”

quoting Rulli v. Fan Co.,

,

(1997). See also

Clayton v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 101854, 2015-Ohio-

1547, ¶ 11 (holding that antidiscrimination and antiharassment provisions in an

employee handbook did not create any contractual obligations or rights); Pierce v.

Bishop, 4th Dist. Meigs No. 10CA6,

(noting that even though

the existence of a duty for purposes of a negligence action could be found in the

express or implied terms of a contract, such “general and aspirational” policies

regarding employee safety were not sufficient to create a binding contract to

establish a duty); Sagonowski v. Andersons, Inc., 6th Dist. Lucas No. L-03-1168,

(holding that an “Employee Bill of Rights” reflected

“aspirational statements” and did not create specific contractual terms between the

employer and employee); Olive v. Columbia/HCA Healthcare Corp., 8th Dist.

Cuyahoga Nos. 75249 and 76349,

(Mar. 9, 2000)

(concluding a hospital’s “aspirational statement of policy that it would take

corrective action in a uniform, consistent, and nondiscriminatory manner” was not

sufficient to create a binding contract). Plaintiffs argue their Agreement provides a binding confidentiality

agreement because it uses language such as “will” and “pledge,” and contains

specific and measurable commitments, such as “to protect the privacy, respect and

dignity of all involved.” Plaintiffs contend the words “will” and “pledge” are akin to

the word “shall” and, therefore, implies an enforceable contractual duty. Plaintiffs

cite Smith v. Smith, 2d Dist. Drake No. 09CA06,

, and Pike-Delta-

York Edn. Assn. v. Howell, Fulton C.P. No. 20182,

(Dec. 4, 1980),

to support their argument.

In Smith, a former husband requested that his former wife be held in

contempt of court for failing to comply with an obligation in the parties’ separation

agreement, which required her to pay an equal share of their child’s college

expenses. The wife testified that it was her intention to pay an equal share when she

signed the separation agreement, but asserted that her intention was conditioned

on her ability to pay her share of the expenses. Thus, the issue in the case was

whether the separation agreement created an enforceable contractual obligation or

whether it merely stated an aspirational goal.

In finding that the wife’s duty to pay an equal share of the child’s

college expenses was an enforceable contract provision, the court observed that the

parties’ agreement used the word “shall,” and that the word “‘[s]hall’ is a word of

obligation, not aspiration.” Id. at ¶ 19. The wife’s obligation under the agreement

was also specific; her failure to pay half of the child’s college expenses constituted a

breach. In Pike-Delta-York, a teacher’s union sought to enforce a provision of

a collective bargaining agreement against a nonunion teacher to collect membership

dues. The collective bargaining agreement stated, in relevant part, that “all certified

non-administrative personnel are expected to join the (plaintiff) association * * * or

pay a representation fee equal to such membership dues.” The court compared this

language with another provision that used the words “shall” and “will” and

concluded that while the words “shall” and “will” established the existence of a

mandatory contractual duty in the other provision, the word “expect” in the disputed

provision did not create a contractual obligation. Id. The term “expect” anticipates

some possible action sometime in the future, is not specific, and is, therefore,

aspirational rather than a mandatory obligation.

The Agreement in this case provides that the parties and their lawyers

“will work to protect the privacy, respect and dignity of all involved.” The Agreement

does not specify how the parties’ privacy will be protected. Nor does it say that the

parties’ privacy “shall” be protected. The Agreement does not specifically require

that all communications shared in the collaborative process be kept confidential.

Instead, the Agreement sets forth general ideals without any express confidentiality

language. We, therefore, agree with the trial court that this language is aspirational

in nature and does not create any specific contractual terms regarding

confidentiality.

Plaintiffs nevertheless contend the agreement is ambiguous and that

parol evidence should have been considered to clarify the Agreement. They contend the court should have considered Amy Wirtz’s oral promises that the collaborative

law process would be confidential.

“The parol evidence rule is a rule of substantive law that prohibits a

party who has entered into a written contract from contradicting the terms of the

contract with evidence of alleged or actual agreements.” Ed Schory & Sons, Inc. v.

Francis,

,

(1996). Under the parol evidence

rule, “‘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.’” Galmish v. Cicchini,

,

(2000),

quoting 11 Williston on Contracts, Section 33:4, at 569-70 (4th Ed. 1999).

Only when the language of a contract is unclear or ambiguous, or

when the circumstances surrounding the agreement invest the language of the

contract with a special meaning, will extrinsic evidence be considered to give effect

to the parties’ intentions. Kelly v. Med. Life Ins. Co.,

,

(1987). But, when the terms in a contract are unambiguous, courts will

not create a new contract by finding an intent not expressed in the clear language

employed by the parties. Alexander v. Buckeye Pipe Line Co.,

,

(1978). A court may not put words into a contract that the

parties themselves failed to include. Porterfield v. Bruner Land Co., 7th Dist.

Harrison No. 16 HA 0019,

. Terms in a contract are ambiguous if their meanings cannot be

determined from reading the entire contract, or if they are reasonably susceptible to

multiple interpretations. First Natl. Bank of Pennsylvania v. Nader, 2017-Ohio-

1482,

(9th Dist.).

The parties’ Agreement is not ambiguous; it simply lacks a specific

confidentiality provision. Furthermore, there are no special circumstances

warranting the consideration of parol evidence since the plain language of the

Agreement is clear and unambiguous. Therefore, the trial court properly concluded

that the parol evidence rule prohibited it from considering contemporaneous oral

agreements that may vary or contradict the terms of the written agreement.

Still, plaintiffs argue the collaborative law process outlined in R.C.

Chapter 3105, establishes the existence of a confidentiality provision in the parties’

agreement. They contend the collaborative law process is another special

circumstance warranting consideration of parol evidence.

R.C. 3105.48 provides that collaborative family-law communications

are confidential “to the extent agreed by the parties in a signed record or as provided

by the law of this state.” R.C. 3105.43 further provides a list of mandatory provisions

to be included in collaborative law agreements, but a confidentiality provision is not

required. Therefore, the collaborative law process was not a special circumstance

warranting the consideration of parol evidence for purposes of construing the

parties’ agreement. We sympathize with the plaintiffs’ grievances against Wirtz. However,

after construing the reasonable inferences in plaintiffs’ favor and reviewing the plain

and unambiguous language of the parties’ agreement, we find no set of facts entitling

them to relief. Therefore, the sole assignment of error is overruled.

The trial court’s judgment is affirmed.

It is ordered that appellees recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to 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 T. GALLAGHER, JUDGE

MICHELLE J. SHEEHAN, P.J., and MARY EILEEN KILBANE, J., CONCUR