Cyrus v. Ohio Rehab. Servs. Comm. , 2023 Ohio 1506 ( 2023 )

[Cite as Cyrus v. Ohio Rehab. Servs. Comm., 2023-Ohio-1506.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
James E. Cyrus Court of Appeals No. L-22-1031
Appellant Trial Court No. CI0202102256
v.
Ohio Rehabilitation Services Commission
n/k/a Opportunities for Ohioans with
Disabilities, Bureau of Services for the
Visually Impaired DECISION AND JUDGMENT
Appellee Decided: May 5, 2023
*****
Fazeel S. Khan, for appellant.
Dave Yost, Ohio Attorney General, and Crystal R. Richie,
Principal Assistant Attorney General, for appellee.
*****
OSOWIK, J.
{¶ 1} This is an accelerated appeal from a judgment of the Lucas County Court of
Common Pleas which denied appellant’s motion to enforce settlement agreement and for
preliminary injunction. For the reasons set forth below, this court affirms the judgment
of the trial court.
I. Background
{¶ 2} On June 9, 2021, as amended on August 16, plaintiff-appellant James E.
Cyrus filed a complaint for enforcement of settlement agreement and for injunctive relief
against defendant-appellee Opportunities for Ohioans with Disabilities, Bureau of
Services for the Visually Impaired (“OOD/BSVI”).1 Appellant alleged that in 2006, he
and appellee entered into a valid, enforceable settlement agreement (hereafter, “the
Settlement Agreement”)2 which appellee unilaterally terminated. Appellant alleged the
Settlement Agreement authorized appellant the exclusive right to be the blind-vendor
operator of broad types of vending services at the University of Toledo’s Health Sciences
Campus (“UTHSC”) under various conditions, which he met. Appellant prayed for an
order enforcing the Settlement Agreement against appellee and for preliminary and
permanent injunctive relief against appellee “from taking any actions to prevent Cyrus
from resuming operation of the Market Café,” which he suspended in September 2020.
Appellant alleged the Market Café, which he began operating in 2018, is a type of non-
1
Appellant originally named The University of Toledo as a co-defendant, then
voluntarily dismissed that party, without prejudice, on August 13, 2021. The University
of Toledo is not a party to this appeal.
2
Appellant attached to his amended complaint five exhibits, one of which is the “Mutual
Settlement Agreement” dated October 19, 2006 between appellant and Ohio
Rehabilitation Services Commission (“ORSC”)/BSVI/Business Enterprise Program
(“BEP”). Under paragraph 12, the agreement became effective on October 26, 2006.
2.
vending-machine vending service enforceable against appellee under the Settlement
Agreement.
{¶ 3} For context, Congress enacted the Randolph-Sheppard Act (“RSA”) in 1936
to provide blind persons with economic opportunities by authorizing qualified individuals
to operate vending facilities on federal property under state-agency-issued licenses. Ohio
v. United States, 986 F.3d 618, 621 (6th Cir.2021). Through its mini-RSA, Ohio
expanded blind-person priority vending to state properties through OOD’s Business
Enterprise program (“BEP”), as implemented by BSVI, a division of OOD. Id.; see Ohio
Adm.Code 3304:1-21-01(J) (defining the BEP). “The BSVI acts as a middleman by
creating two different kinds of contracts. The first kind -- the Bureau-Grantor agreement
[(“BGA”)] -- establishes a property or facility as part of the RSA program and defines the
terms for granting use of the facility for RSA vending.” Ohio at 621; see Ohio
Adm.Code 3304:1-21-01(F) (defining a BGA as a signed agreement between BSVI and
the grantor3 for a facility4). “The second kind -- the Bureau-Operator agreement
[(“BOA”)] -- brings a blind vendor into the program and defines the terms for operating
an RSA facility.” Ohio at 621; see Ohio Adm.Code 3304:1-21-01(G) (defining a BOA as
3
A “grantor” is the party responsible for supporting a “facility.” Ohio Adm.Code
3304:1-21-01(X).
4
A “facility” is defined at Ohio Adm.Code 3304:1-21-01(S) and includes one or more
“sites” the BEP believes will earn adequate sales to exist as a “facility”; while a “site” is
defined at Ohio Adm.Code 3304:1-21-01(PP) as a location suitable for vending, but
determined by the BEP to not generate adequate sales to exist as a “facility.”
3.
a signed agreement between BSVI and a visually-impaired operator assigning them a
“facility”); see also Ohio Adm.Code 3304:1-21-06 (BOA requirements).
{¶ 4} Appellant alleged he began operating vending machines in 1993 at the
current University of Toledo Medical Center (“UTMC”)5 under a 1992 BGA,6 to which
appellant is not a party and is not a BOA by definition. Nevertheless, it is undisputed that
appellant initially operated two vending machines at the current UTMC, known as
facility No. 304. In the ensuing years appellant added either 10 or 12 more vending
machines, and then appellant administratively grieved, appealed and litigated the right to
add 23 more vending machines to his facility No. 304. In 2006, appellant’s state and
federal claims against appellee were resolved by the subject of this litigation, the
Settlement Agreement. Later, appellant applied for and was awarded by appellee the
right to be the visually-impaired operator of the self-service vending site called a micro-
market.7 Appellant does not dispute any of the foregoing vending machine/micro-market
operations in this litigation.
5
UTMC is located on the University of Toledo’s Health Sciences Campus (“UTHSC”),
formerly known as the Medical University of Ohio at Toledo and as the Medical College
of Ohio at Toledo (“MCO”).
6
Appellant attached to his amended complaint the “Contract to Operate Vending
Machines at the Medical College of Ohio at Toledo” dated May 14, 1992, between the
State of Ohio, acting by and through BSVI, and MCO.
7
Appellant attached to his amended complaint the “Amendment to Bureau-Grantor
Agreement: Amends Contract # (Original agreement – November 2006)” dated October
14, 2016 between OOD/BSVI/BEP and The University of Toledo.
4.
{¶ 5} On June 6, 2018, appellee and UTHSC entered into a stand-alone BGA8 for
a new suitable location for a vending facility,9 described as a combination coffee kiosk
and sandwich stand, which appellant pursued and prevailed to be the selected blind-
vendor operator. Appellant operated the coffee kiosk and sandwich stand, known as the
Market Café, until September 2, 2020, when he ceased operations during the Covid-19
pandemic and around the start of the new university semester.10 UTHSC then notified
appellee it was in breach of the 2018 BGA, which UTHSC eventually terminated
effective on October 5, 2020. There is currently no BGA in place between UTHSC and
appellee for a combination coffee kiosk and sandwich stand at UTMC.11
{¶ 6} On June 9, 2021, appellant filed a motion for a temporary restraining order
(“TRO”), which appellee opposed. The trial court held the TRO hearing on June 15, and
denied the motion on June 17. Also on June 17, appellee notified appellant that the
Settlement Agreement was terminated, stating, “with the abolishment of MCO, the non-
8
Appellant attached to his amended complaint the “Bureau-Grantor Agreement” dated
June 6, 2018 between OOD/BSVI and UTHSC.
9
A “suitable vending facility” is defined at R.C. 3304.28(A), which has evolved in recent
years through amendments between 1976 and 2017.
10
After appellant ceased operations, he applied for and received “significant,” self-
described, federal pandemic-relief funds.
11
Outside of this litigation, UTHSC and appellee arbitrated whether the site of the
combination coffee kiosk and sandwich stand remained a suitable location for a visually-
impaired operator, and the OOD arbitration panel determined it is. However, a current
BGA is not in the record before us. App.R. 9(A)(1).
5.
payment of a commission, and the passage of fifteen years, this agreement is no longer
valid.”
{¶ 7} Prior to filing his August 16 amended complaint, on August 13, appellant
filed a motion to enforce settlement agreement and for preliminary injunction. The
allegations in the motion and the relief sought are repeated in his amended complaint, and
the hearing on the motion was held on August 31. Appellee opposed the motion and
orally answered the amended complaint at the hearing.12 The trial court then received
post-hearing briefs from the parties on September 8.
{¶ 8} Also on September 8, appellant filed an amended prayer of relief for his
pending motion, seeking an order enforcing the Settlement Agreement and preliminary
injunctions preventing appellee from: (1) “preventing [appellant] from resuming
operation of the coffee and sandwich kiosk known as the Market Café as part of his
Facility 304”; (2) “from installing any vendor other than [appellant] as the temporary or
permanent licensed blind vendor operator of the coffee and sandwich kiosk known as the
Market Café”; and (3) “from installing any vendor other than [appellant] as a temporary
or permanent licensed blind vendor operator of any expansion of vending services on the
Health Science Campus of the University of Toledo.”
12
The trial court placed in the record of the August 31 hearing the following: “The
parties have agreed that the response to the amended complaint can be handled orally
here today. * * *[OOD] will respond to the amended complaint orally today and
reserve[s] the right to file a written motion in response to that amended complaint.”
6.
{¶ 9} While the motion to enforce settlement remained pending, appellant sought,
and the trial court granted on October 18, a TRO against appellee “from 1) entering into
any operator agreement, temporary or otherwise, with any vendor other than plaintiff for
the purpose of operating the coffee and sandwich kiosk known as the Market Café, which
is located inside the University of Toledo Medical Center, or 2) placing any vendor other
than Mr. Cyrus as the operator of said coffee and sandwich kiosk.”
{¶ 10} The TRO remained in effect until the trial court dissolved it on January 27,
2022. Concurrently, the trial court denied appellant’s motion to enforce the Settlement
Agreement and for a preliminary injunction. Appellant timely appealed and set forth five
assignments of error:
I. The lower court erred by failing to conduct the requisite
evidentiary hearing prior to making a final determination on the merits of
Appellant’s Motion to Enforce Settlement Agreement.
II. The lower court erred by concluding that the Settlement
Agreement is no longer valid due to Appellant not complying with the
provision concerning payment of commissions, despite the payment of
commissions not be required under Bureau Grantor Agreements since 2014
and the Ohio Attorney General determining in 2014 that payment of such
commissions is unlawful.
7.
III. The lower court erred by concluding that the Settlement
Agreement is no longer valid due to it not applying to successive Bureau
Grantor Agreements, despite the Settlement Agreement making no mention
of its continued enforceability being limited to any particular Bureau
Grantor Agreement.
IV. The lower court erred, based on the principle of issue preclusion
(emphasis sic.), by re-examining whether the term “vending services” in the
Settlement Agreement refers only to vending machines, when the issue had
already been decided by Appellee OOD’s Adjudication Order in 2017.
V. Even if the lower court were not bound by the 2017 Adjudication
Order in which OOD determined the term “vending services” in the
Settlement Agreement means more than only vending machines, the lower
court erred by deeming the term unambiguous (despite the term not being
defined in the Settlement Agreement) and failing to consider extrinsic
evidence that plainly establishes the parties always understood the term as
meaning more than only vending machines.
{¶ 11} On March 14, 2022, appellant filed with this court an application for
injunction pending appeal, which appellee opposed. On July 6, this court denied
appellant’s motion.
II. Analysis
8.
{¶ 12} Each of appellant’s assignments of error challenge the outcome of the task
he requested from the trial court: to determine whether the Settlement Agreement was
enforceable against appellee for a combination coffee kiosk and sandwich stand. Our
determination on the enforceability of the Settlement Agreement is dispositive of
appellant’s appeal of his concurrent motion for a permanent injunction.
A. Standard of Review
{¶ 13} “A settlement agreement is a contract designed to terminate a claim by
preventing or ending litigation. * * * Because a settlement agreement constitutes a
binding contract, a trial court has authority to enforce the agreement in a pending
lawsuit.” Infinite Sec. Sols., L.L.C. v. Karam Properties, II, Ltd., 143 Ohio St.3d 346,
2015-Ohio-1101, 37 N.E.3d 1211, ¶ 16. The interpretation of a contract is a matter of
law, which we review de novo. St. Marys v. Auglaize Cty. Bd. of Commrs., 115 Ohio
St.3d 387, 2007-Ohio-5026, 875 N.E.2d 561, ¶ 38.
{¶ 14} “A meeting of the minds as to the essential terms of the contract is a
requirement to enforcing the contract.” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-
2985, 770 N.E.2d 58, ¶ 16. Contract enforceability also rests on whether the terms of the
agreement are reasonably certain and clear, and the trial court should hold a hearing if the
terms are uncertain. Id. at ¶ 17. Our primary goal in construing a contract is to ascertain,
and give effect to, the intent of the parties, which we presume is reflected in the contract
itself. Bank of New York Mellon v. Rhiel, 155 Ohio St.3d 558, 2018-Ohio-5087, 122
9.
N.E.3d 1219, ¶ 20; Bellman v. Am. Internatl. Group, 113 Ohio St.3d 323, 2007-Ohio-
2071, 865 N.E.2d 853, ¶ 11 (“A contract that appears to be a complete and unambiguous
statement of the parties’ contractual intent is presumed to be an integrated writing”).
{¶ 15} “As a matter of law, a contract is unambiguous if it can be given a definite
legal meaning.” Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797
N.E.2d 1256, ¶ 11. “If a reasonable interpretation of the language exists, then we should
give the agreement its intended legal effect.” Laboy v. Grange Indemn. Ins. Co., 144
Ohio St.3d 234, 2015-Ohio-3308, 41 N.E.3d 1224, ¶ 10. “When the terms of a contract
are unambiguous, courts will not, in effect, create a new contract by finding an intent not
expressed in the clear language employed by the parties.” Mike McGarry & Sons, Inc. v.
Construction Resources One, LLC, 2018-Ohio-528, 107 N.E.3d 91, ¶ 94 (6th Dist.).
{¶ 16} We have previously denied appellant’s application for injunction pending
his appeal. In our July 6, 2022, decision, we pointed out that his arguments in that
motion were interwoven with his underlying merit appeal and that his cause may have
had some faint ray of hope with a different standard of review. We have utilized a de
novo standard of review in this instance which is his direct appeal of the underlying trial
court’s decision. After consideration of appellant’s arguments and examination of the
record, we find that he also ultimately cannot prevail under this standard.
{¶ 17} Upon de novo review and as further discussed herein, we find the intent
and purpose of the Settlement Agreement is stated in the contract as follows: “[T]he
10.
parties wish to resolve the above-mentioned grievance [filed under Ohio Admin.Code
3304:1-21-14], Federal Court Matter [filed in U.S. District Court for Northern District of
Ohio], pending arbitration [filed under 20 U.S.C. 107d-1(a) and d-2], and all other
matters as they relate to the expanded vending operation at MCO as defined in paragraph
one below.”
{¶ 18} Paragraph one of the Settlement Agreement states:
Cyrus shall be awarded the expansion of the vending facility at the
Medical College of Ohio which shall consist of twenty-three (23) vending
machines to be attached to Facility No. 304, including any future expansion
of vending services at the MCO Campus and as long as that is consistent
and in compliance with the provisions of the Ohio Revised Code (O.R.C.)
Sections 3304.28, et. seq., the Ohio Administrative Code (O.A.C.) Sections
3304:1-21, et. seq., the Randolph-Sheppard Act, 20 U.S.C. Sections 107, et.
seq., and contingent upon BSVI and MCO entering into a suitable Grantor
Agreement. * * *. BSVI and Cyrus both contemplate a start date no later
than November 27, 2006.
{¶ 19} In addition, paragraph nine of the Settlement Agreement states the contract
may only be modified if in writing and signed by all parties to the contract: “No other
modification, oral or otherwise, shall be deemed to have any legal force and/or effect
whatsoever.” There is no modification of the Settlement Agreement in the record.
11.
{¶ 20} We will address appellant’s assignments of error out of order.
B. Settlement Agreement Enforcement
{¶ 21} Appellant’s third assignment of error challenges the intent of the parties
regarding the Settlement Agreement’s application to all future BGAs and regarding the
evolving understanding of “vending services.”
{¶ 22} Appellant argues the first portion of paragraph one of the Settlement
Agreement unambiguously entitles him to any expansion of “vending services” at the
current UTMC regardless of any particular BGA contemplated by the Settlement
Agreement. Appellant argues, citing Werner v. Progressive Preferred Ins. Co., 533
F.Supp.2d 776, 781 (N.D. Ohio 2008), that the lack of a time limit on the Settlement
Agreement is evidence of an ambiguity to be construed in his favor for perpetual
expansion of his “vending services.” However, that court cautioned, “A contract’s
silence does not necessarily mean that the contract is ambiguous.” Id.{¶ 23} In response, appellee also argues the Settlement Agreement is
unambiguous, but for a different reason. Appellee argues the contract is clearly limited to
one BGA, the contemporaneous “Vending Services Agreement,”13 which, in turn, also
Appellant attached to his amended complaint the “Vending Services Agreement” dated
13
October 16, 2006 between The University of Toledo and the ORSC/BSVI/BEP.
12.
clearly limited appellant’s authorized “vending services” to vending machines, which is
not the combination coffee kiosk and sandwich stand. Appellee argues the parties’
understanding of the term “vending services” in 2006 for the purposes of the Settlement
Agreement is not the same as that term is used for the RSA and mini-RSA today when
determining the eligibility of a suitable-vending facility. Appellee explains that when the
combination coffee kiosk and sandwich stand became available in 2018, it was, by
definition, a “site” and not a “facility.” Consequently, at that time “it was added to
Appellant’s existing facility to the exclusion of other blind vendors.” Finally, appellee
argues the relief appellant seeks is futile because under Ohio Adm.Code 3304:1-21-
03(E)(6), appellant is ineligible to return to the combination coffee kiosk and sandwich
stand as its visually-impaired operator.
{¶ 24} The trial court’s judgment entry explains the issue presented by appellant’s
motion: “While the full background of this matter and a basic understanding of the
purposes underlying [appellant’s] business operation are important, the present issue
before the Court boils down to a contract dispute. In 2006, [appellant] reached the
settlement agreement at issue to end previous litigation with BSVI/OOD regarding
vending services at what was then-known as the Medical College of Ohio.” We agree
with the trial court’s explanation of why the Settlement Agreement is no longer
enforceable for a combination coffee kiosk and sandwich stand:
13.
Notably, the parties agree that the legal framework for blind vending
operations in Ohio has changed since 2006 and no longer permits
commissions to be charged. As such, Plaintiff has not paid commissions
for several years. Additionally, OOD is correct that the 2006 settlement
agreement does not state that it is applicable to future BGAs. While the
Court declines to address OOD’s argument related to the name
changes/successive operation of MCO/UTMC, simply put, such discussion
is unnecessary to reach a decision in this case. When the Court views this
situation as a whole, it finds the 2006 settlement agreement between
Plaintiff and BSVI/OOD is no longer applicable. Even if Paragraph 4 of
the 2006 agreement (Commissions) is severed (as contemplated by
Paragraph 7) because commissions are no longer permitted, the fact
remains that several BGAs have come and gone since the agreement was
enacted, and it does not state that it applies to successive BGAs. As such,
the Court finds the 2006 settlement agreement between Plaintiff and
BSVI/OOD is no longer valid. Plaintiff’s motion to enforce is therefore
denied.
{¶ 25} The Settlement Agreement is the BOA/first piece of BSVI’s two-piece
puzzle. See Ohio, 986 F.3d at 621. When paragraph one of the Settlement Agreement is
viewed in its entirety, it unambiguously identifies a number of conditions precedent to
14.
appellant’s right to the expansion of “vending services” at the current UTMC, including,
specific reference to 23 vending machines to be attached to facility No. 304 “and
contingent upon BSVI and MCO entering into a suitable Grantor Agreement.” The
Settlement Agreement makes no reference to any additional or successive BGAs after “a
suitable Grantor Agreement” is entered into.
{¶ 26} Because the Settlement Agreement explicitly references “a suitable
[BGA],” see id., which is the second piece of BSVI’s puzzle, we may look to that BGA
for additional evidence of the parties’ intent for appellant’s “vending services” under the
BOA. The BGA entered into contemporaneously with the Settlement Agreement is
called the “Vending Services Agreement,” effective from November 27, 2006, to June
30, 2008, and subject to one-year conditional extensions, pursuant to paragraph two.
Notably, the BGA’s effective date aligns with the appellant’s anticipated start of the
vending services under paragraph one of the Settlement Agreement. The 2006 BGA was
eventually terminated effective October 5, 2020.
{¶ 27} Paragraph one of the 2006 BGA begins with, “The University grants to the
Contractor [ORSC/BSVI/BEP] the right to sell the mutually agreed food, food products,
candy, snacks and beverages in specified vending areas in the Campus and only from
vending machines.” The limitation to vending machines is reinforced in paragraph four,
which begins with, “The Contractor agrees that it will require its licensed blind operator
to offer for sale and serve only food, food products, candy and beverages in the Vending
15.
Service Locations and from vending machines only.” The limitation to vending
machines is further reinforced in paragraph 20, which begins with, “The Contractor
agrees that it will ensure that the variety of products being supplied in its vending
machines will be an appropriate mix for the persons utilizing the products in each
Vending Service Location * * *.”
{¶ 28} The trial court’s decision reached the same result:
It is clear in paragraph 1 of the 2006 settlement agreement, the
parties defined the meaning of what was awarded to Cyrus: “Cyrus shall be
awarded the expansion of the vending facility at the Medical College of
Ohio which shall consist of twenty-three (23) vending machines to be
attached to Facility No. 304, including any future expansion of vending
services at the MCO Campus.” [Emphasis added.] The “vending services”
referenced in the contract are clearly vending “machines.” The market café
at issue in this dispute is not a vending machine. As such, the 2006
settlement agreement does not entitle Plaintiff to operate the market café to
the exclusion of any other vendor.
For the sake of argument, if the term “vending services” is
considered an undefined term in the 2006 settlement agreement, the
following analysis is required to determine if it is ambiguous * * * [citing]
PNC Bank, N.A. v. Springboro Med. Arts, Inc., 2015-Ohio-3386, 41 N.E.3d
16.
145, ¶ 30 (2d Dist.). When the Court reviews the four corners of the 2006
settlement agreement, the only “vending services” referenced therein are
vending machines. As such, if the Court finds the term “vending services”
to be unambiguous, it must be construed to mean services from vending
“machines.”
Even if the Court were to find the term “vending services” to be
ambiguous and consider extrinsic evidence, it would also find the term only
applies to/references vending machines. OOD correctly notes that the
parties’ October 16th, 2006, Vending Services Agreement (Exhibit D to
Plaintiff’s Motion) states the following: “The University grants to the
Contractor the right to sell the mutually agreed food, food products, candy,
snacks and beverages in specified vending areas on the Campus and only
from vending machines.” If the 2006 settlement agreement is still
enforceable – which the Court explicitly finds it is not – the agreement only
applies to vending machines. As such, the 2006 settlement agreement
would not automatically entitle Plaintiff to operation of the market café at
issue in this case.
{¶ 29} We agree. Upon de novo review, we find the Settlement Agreement is
clear and unambiguous and reflects the intent of the parties to it. We find the reasonable
interpretation of the intent of the parties to the Settlement Agreement regarding
17.
appellant’s “vending services” was limited to expansion of vending machines at the
former MCO that resolved the disputes and litigation by appellant against appellee. The
Settlement Agreement was subject to the contemporaneous BGA entered into between
the University of Toledo and appellee. We further find the Settlement Agreement is not
enforceable by appellant against appellee for the so-called Market Café, a non-vending-
machine combination coffee kiosk and sandwich stand.
{¶ 30} Appellant’s third assignment of error is not well-taken.
C. Evidentiary Hearing
{¶ 31} In light of our decision on appellant’s third assignment of error that the
Settlement Agreement is clear and unambiguous, we next dispose of his first assignment
of error.
{¶ 32} In support of his first assignment of error, appellant argues the trial court
“failed to conduct an evidentiary hearing prior to making a final determination on the
merits of Cyrus’ Motion to Enforce Settlement Agreement.” Appellant cites to Rulli v.
Fan Co., 79 Ohio St.3d 374, 683 N.E.2d 337 (1997), syllabus, which states, “Where the
meaning of terms of a settlement agreement is disputed, * * * a trial court must conduct
an evidentiary hearing prior to entering judgment.”
{¶ 33} Appellee responds that appellant waived the right, if any, to an evidentiary
hearing for alleged ambiguities in the Settlement Agreement when it agreed to a hearing
limited to oral argument on the briefs, citing Loch v. Myers, 6th Dist. No. L-20-1159,
18.
2021-Ohio-2623, 176 N.E.3d 98, ¶ 40, and citing an August 17, 2021 conference call
among the trial court and the parties.
{¶ 34} Upon de novo review, we find no evidentiary hearing was necessary in
light of our determination on appellant’s third assignment of error. Alternatively, even if
there was ambiguity in the Settlement Agreement, the necessary hearing was held on
August 31, 2021,14 with additional post-hearing briefing and pleadings in the record,
prior to the trial court’s decision. Kostelnik, 96 Ohio St.3d 1, 2002-Ohio-2985, 770
N.E.2d 58, at ¶ 17.
{¶ 35} Appellant’s first assignment of error is not well-taken.
D. Extrinsic Evidence
{¶ 36} In light of our decision on appellant’s third assignment of error that the
Settlement Agreement is clear and unambiguous, we next dispose of his fifth assignment
of error.
{¶ 37} In support of his fifth assignment of error, appellant argues that the term
“vending services” in the Settlement Agreement is ambiguous by a practical
interpretation of the contract and by appellee’s course of conduct, citing Terry Barr Sales
Agency, Inc. v. All-Lock Co., 96 F.3d 174, 180 (6th Cir.1996). However, that court,
interpreting Michigan law, determined the parties’ dispute over an oral agreement for
14
The 115-page transcript of the August 31 hearing, at which appellant and his counsel
were present, is in the record. At the hearing appellant presented all of the evidence and
legal arguments in support of his motion.
19.
post-termination commissions was “particularly ill-suited for resolution at the summary
judgment stage,” which is not the matter before us. Id. at 181. Nevertheless, appellant
argues the parties have “always understood [vending services] to include services beyond
only vending machines.” Appellant points to his reply in support of his motion filed on
the eve of the hearing for the extrinsic evidence of a written response to an interrogatory
from OOD “in the recent federal court litigation.”15 Appellant argues OOD admits 14
years after the Settlement Agreement that appellant is entitled to have the Market Café
deemed his exclusive “vending services” under the Settlement Agreement.
{¶ 38} Appellee responds that extrinsic evidence is not required to determine the
clear and unambiguous language in the Settlement Agreement. We agree.
{¶ 39} Upon de novo review, we find no extrinsic evidence16 was necessary in
light of our determination on appellant’s third assignment of error. We will not insert an
alleged intent from 2020 for “vending services” that arose 14 years after the contract was
entered into. “Only when the language of a contract is unclear or ambiguous, or when the
15
Attachment two of appellant’s August 30, 2021 reply is entitled, “Responses to
Defendant University of Toledo’s First Set of Interrogatories and Requests for Production
of Documents to Defendant Opportunities for Ohioans with Disabilities,” dated
November 9, 2020, in a matter captioned, James Cyrus v. Dr. Gregory Postel, et al, in the
U.S. Northern District Court of Ohio, case No. 3:20-cv-02287.
16
Appellant’s representation of the accuracy of interrogatory No. 3 in his federal
litigation against appellee and the University of Toledo, a non-party in this appeal, is
questionable and, in any event, does not create an ambiguity in his favor. On December
31, 2020, the U.S. Northern District Court of Ohio granted the separate motions to
dismiss appellant’s complaint filed by the University of Toledo and appellee. The record
does not include the referenced complaint.
20.
circumstances surrounding the agreement invest the language of the contract with a
special meaning will extrinsic evidence be considered in an effort to give effect to the
parties’ intentions.” Shifrin v. Forest City Enterprises, Inc., 64 Ohio St.3d 635, 638, 597
N.E.2d 499 (1992). As previously discussed, both the language of the Settlement
Agreement and the surrounding circumstances of the contemporaneous 2006 BGA
confirm the clear and unambiguous intent of the parties that appellant’s contractually-
authorized vending services are limited to vending machines. “When the terms in a
contract are unambiguous, courts will not in effect create a new contract by finding an
intent not expressed in the clear language employed by the parties.” Id.{¶ 40} For the foregoing reasons, appellant’s fifth assignment of error is not well-
taken.
E. Res Judicata
{¶ 41} In light of our decision on appellant’s third assignment of error that the
Settlement Agreement is clear and unambiguous, we next dispose of his fourth
assignment of error.
{¶ 42} In support of his fourth assignment of error, appellant argues the trial court
erred when it determined the intent of the parties behind the term “vending services” in
the Settlement Agreement did not include appellant’s Market Café. Appellant argues his
Market Café location should be considered a “future expansion of vending services at the
MCO Campus” pursuant to paragraph one of the Settlement Agreement. Appellant
21.
further argues the trial court ignored extrinsic evidence of “an Adjudication Order issued
in 2017 in response to a grievance filed by another blind operator, [against] OOD.”
Appellant concludes that because the issue of “vending services” has actually been
litigated “in a prior forum in which OOD had a fair opportunity to participate (and itself
made the final determination), the lower court should be bound by the Adjudication
Order by way of issue preclusion,” citing United States v. Cinemark USA, Inc., 348 F.3d
569, 583 (6th Cir.2003). Upon de novo review, we disagree with appellant for the
reasons set forth above for his fifth assignment of error and as stated below.
{¶ 43} “The doctrine of res judicata involves both claim preclusion (historically
called estoppel by judgment in Ohio) and issue preclusion (traditionally known as
collateral estoppel).” Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 653 N.E.2d 226(1995). “A derivative of res judicata, collateral estoppel bars ‘the relitigation of a point
of law or fact that was at issue in a former action between the same parties and was
passed upon by a court of competent jurisdiction.’ It requires ‘an identity of parties and
issues in the proceedings’ and applies equally to administrative hearings.” (Citations
omitted.) State ex rel. Kincaid v. Allen Refractories Co., 114 Ohio St.3d 129, 2007-Ohio-
3758, 870 N.E.2d 701, ¶ 8.
{¶ 44} Appellant points us to exhibit D of his affidavit attached to his October 18,
2021 TRO motion, in which he identifies as, “a true and correct copy of an Adjudication
Order issued by OOD in 2017 related to the Market Café’ and sandwich kiosk.” Our
22.
review of exhibit D shows that it is an adjudication order issued on April 24, 2018 by the
acting deputy director of BSVI denying a grievance filed by Derek Neufarth on October
4, 2017. Appellant is not mentioned in the adjudication order for Mr. Neufarth’s
grievance, and Mr. Neufarth’s grievance is not clearly described in the order. In addition,
we find that the subject of this appeal, the Settlement Agreement, neither mentions nor
references Mr. Neufarth, and Mr. Neufarth has never been a named party in this
litigation. Thus, the adjudication order, at a minimum, does not involve the same parties
as this litigation, and res judicata/issue preclusion does not apply.
{¶ 45} Appellant’s argument fails for another reason. Despite appellant pointing
us to his TRO motion filed almost two months after the August 31 hearing held on
appellant’s motion to enforce settlement agreement, we find that the parties extensively
argued at the hearing their opposing positions on the relevance of the adjudication order.
Importantly, the record shows that appellant did not bring to the trial court’s attention,
either during the hearing or in his post-hearing brief or subsequent pleadings, his claim of
res judicata/issue preclusion. Consequently, the trial court’s decision did not determine
the res judicata/issue preclusion argument appellant now raises on appeal, and this court
may not rule on a question of res judicata that the trial court did not first decide in a final,
appealable order. Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d
593, ¶ 22.
{¶ 46} Appellant’s fourth assignment of error is not well-taken.
23.
F. Commission Payments
{¶ 47} In light of our decision on appellant’s third assignment of error that the
Settlement Agreement is unenforceable in the manner appellant argues, we next dispose
of his second assignment of error in which appellant argues the trial court improperly
relied on paragraph four, a severable paragraph regarding paying commissions, to
determine the entire contract is unenforceable. We disagree.
{¶ 48} Paragraph four of the Settlement Agreement states, “[a] commission rate
pursuant to the Bureau-Grantor agreement shall be paid by Cyrus to MCO.” While
neither party disputes that paragraph four is clear and unambiguous as written, they agree
the Ohio Attorney General invalidated such commission payment clauses in a BGA
entered into between OOD/BSVI and a state college or university. 2014 Ohio
Atty.Gen.Ops. No. 2014-008. Nevertheless, we previously determined, upon de novo
review, the Settlement Agreement when viewed as a whole is unenforceable for the non-
vending-machine combination coffee kiosk and sandwich stand. The trial court did not
rely on the issue of paying commissions to reach its determination, nor do we.
{¶ 49} Appellant’s second assignment of error is not well-taken.
III. Conclusion
{¶ 50} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
24.
Judgment affirmed.
James E. Cyrus
v. Ohio Rehabilitation Services
Commission n/k/a Opportunities
for Ohioans with Disabilities,
Bureau of Services for the
Visually Impaired
L-22-1031
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
CONCUR. ____________________________
JUDGE
Christine E. Mayle, J. ____________________________
CONCURS IN JUDGMENT JUDGE
ONLY.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
25.
26.