*1 and Rule 15.8 Appellate Procedure hereby DIS- cause to show The order of the Sixth Operating Procedures for Internal the case will set The clerk CHARGED. 12, 1991). (June Circuit the merits. argument on oral dissenting. MILBURN, Judge, Circuit majority disagree with respectfully
I discharge our to decision panel in its of this appeal should why this cause to show order imposing without dismissed not be for appeal dismiss I would sanctions. prosecute. plaintiffs’ failure SYSTEMS, INTERIOR CONSTRUCTION by the accurately stated are The facts INC., Plaintiff-Appellee, show discharging order majority in the circum- except that a material cause order Supreme After is omitted. stance RESTAURANTS, MARRIOTT FAMILY ques- the certified dismissed of Ohio Court INC., Defendant-Appellant. neces- to file the failure plaintiffs’ tion for petitioned 91-3330, 91-3373. brief, plaintiffs for sary counsel Nos. for its dismissal reconsider Appeals, of Court United States urged before prosecute failure Sixth Circuit. us. makes to he now excuses those same rejected those Court of Ohio Supreme 20, 1992. Argued March excuses, we. and so should Jan. 1993. Decided XVI, Supreme Ohio Rule 7 of Section Rehearing Banc En Rehearing and Practice, unequivocally of Rules Court April Denied within filed shall be that briefs states the certifica- filing days of the of twenty reading this Counsel admits
tion order. filing however, a brief rule; rather than his secre- commands, he instructed the rule Supreme the clerk of tary telephone clarification for some of Ohio Court secretary by his informed rules. When clerk’s person in the that an unidentified no brief was her that had advised office action. necessary, took further counsel rule of Ohio’s Supreme Court ignore To call to secretary’s telephone of a virtue is, me, only irresponsible but clerk part plain- of neglect on the unexcusable counsel. tiffs’ Supreme of Court As a result certification Ohio’s dismissal has been this court prosecution, want the answer to obtain in its efforts thwarted thought we law which question of Ohio to a plain- determinative have been pursuant Accordingly, tiffs’ claims. Proce- 3(a) Appellate Rules of Rule plain- dure, appeal I dismiss this connec- prosecute. tiffs’ failure 31(c) the Rules tion, Rule see also *2 (ar- Temin, Atkins G.
Larry A. Charles briefed), Troy, & Cincin- gued and Strauss OH, nati, plaintiff-appellee. (briefed), A. Palmer William Thomas E. briefed), Squire, Sanders (argued Klatt OH, Columbus, for defendant- Dempsey, & appellant. NORRIS, Circuit JONES and
Before JOINER, Senior District Judges, and Judge.*
JOINER, Judge. Senior District defendant, Family Restau- rants, Inc., appeals, plaintiff, and the Con- Inc., cross-ap- Systems, Interior struction judgment for Con- peals the district court's Inc., in this Systems, Interior di- struction upon an versity contract based al- action leged of a settlement breach follow, we reverse For the reasons that court. judgment of the district I. plaintiff in action is Construc- (CIS), compa- Systems, Inc. Interior
tion refurbishing rooms. engaged in motel ny Family Restau- The defendant is Marriott rants, (Marriott), corporation Inc. as the previously business How- conducted Johnson). (Howard Company ard Johnson Penker, his asso- CIS’s president, John ciate, in 1979. Cady Lowell formed CIS 1980-83, performed 90 to From its for Howard Johnson. percent of that re- dispute, over an issue record, arose mains unidentified be- Johnson. As a CIS and Howard tween result, removed CIS from for future work approved list of bidders * Joiner, by designation. sitting Dis- Charles W. United States Honorable Michigan, trict Court District of Eastern alleges that because bidders contracts time. CIS then-current and cancelled pre-approved, Howard with CIS. refurbishing contracts for actions. Howard Johnson’s protested Thus, in work to the lowest bidder.- CIS’s dispute exten- negotiated the *3 view, agreement provision the settlement in a their differences sively resolved and requiring Howard Johnson to restore CIS their settlement meeting. The terms of list meant that CIS would to the bidders’ one dated in two letters: set out opportunity to bid on all refur- have the Sterns, 24, 1984, John January sent dispute. it had bishing work as before Johnson, to Penk- at Howard president vice 1, 1984, sent er, February one dated and an invitation to bid CIS did not receive parties agreed Penker Stearns. lodge motor room refurbishment work it all claims that release that CIS February Defen- January in or of 1984. arising out of against Howard Johnson had dispute early this. March dant does not exchange for in contracts the cancelled attempted to reach Howard John- the follow- promise of Johnson’s upcoming. to find out what bids were son ing: re- April In late Howard Johnson put you on immediately to agree We apprising CIS of the fact that all sponded, re- construction and list for the bidders’ already had been 1984 refurbishment work year from this If after one hab work. Penker then wrote to Robert contracted. the successful you have not been date Wickham, president another of How- vice work, we of on bidder involved in ne- ard Johnson who had been faith, you in agree negotiate with agreement, stating gotiating the settlement quotes, prevailing rates subject to regrets that all 1984 work had been his by you of work performance He further awarded to other contractors. which, of together with the amount work stated: during the been awarded you may have Unfortunately, these circumstances $300,- equal the sum of prior year, would oppor- not have an suggest that we will working relation- tunity to re-establish agreed that Howard further major company for the ship your any contract with CIS could cancel hoped and antici- year portion of company again remove agreement. pated by our recent We properly if the work was not bidders’ list that our therefore wish to recommend performed but to cover the agreement be extended would, event, the sum of pay in discussing in year 1984-85 fiscal lie[u] termi- necessary to any cash settlement that Howard Johnson Marriott contends nate our by early list CIS to restored May confirm- responded in Wickham agreed to do. February just as it had had been awarded ing that all 1984 work however, insists, every agreement as consenting to extend the list was not solicited tractor on the bidders’ fis- to cover the 1984-85 requested Penker moreover, every project; Mar- on for bids year. cal that solicited bids were evaluat- riott claims factors, upon a ed based number 1985, it became clear By spring necessarily, usually, projects were Corporation potential for Marriott to the lowest bidder. great, Howard Johnson was buy out result, refurbishing hand, and, work was it as a other CIS contends that On the management the new on hold until primary of the four bidders was one By decisions. June lodge re- came in to list for motor make Howard Johnson’s of this apparently was aware work, invita- furbishing that it had received from outside sources—as for Howard situation —albeit to bid on all such work tions Penker sent by a June 11 letter past, and that it had been evidenced asking impact all of these percent what approximately Stearns successful contrary that from complains to agree- CIS settlement have events op- 1985, Howard Johnson —as ment. only four gave CIS invita- posed to knowledge reaso- HJC — our Assuming that of which were projects, two tions to bid occur sale could nably] accurate qualified to work CIS was type that our first concerned we are on the the low bidder was not do. CIS transfer and agreement will settlement not awarded remaining two ownership and by any new recognized be rein- never alleges that was project. CIS terms can secondly, list, Johnson’s bidders’ on Howard stated change since a in 1985 fulfilled mean, and that term understood as CIS delays of reno- ownership could result to bid opportunity it never had the or reassessment programs while vation *4 the 1984 constituted 1500 rooms that occurs within restructuring period 12,000 the over or on refurbishment work Company. 1985 and subse- that rooms were responded that Stearns Cady, of programs. quent refurbishing to receive bid to continue for CIS intended 5, 1986, after CIS, alleges that March on former invitations, hope that their of the com- the owner had become Marriott relationship would resume. business Vancura, the spoke he with David pany, 1985, Corporation Marriott In November architectural, design, of Marriott’s head Johnson, Howard the stock of purchased him told department, who and construction began doing business Johnson Howard and only to work Marriott intended Family Restau- the name Marriott under national, local, contractors opposed as motor Contemporaneously, the rants, Inc. During jobs in the future. refurbishment separately to a new were sold lodges April meeting, 1986 negotiations in an Corpora- entity, Howard Johnson unrelated Peltz, he said that attorney, Mr. Marriott subsidiary tion, (HJC), wholly-owned Inc. Cady an answer about give not could Inns, All contracts Inc. of Prime Motor Peltz at that time. settlement lodges relating to the motor specifically could do Cady that “he later stated transferred, lodges along with the that this insists anything were for CIS [CIS].” transfer. themselves, repudiation under indenture constituted statement assump- into an that Marriott entered Additionally, HJC settlement pursuant repudiation.1 indemnity agreement to cure never offered tion and obligations and liabili- it assumed court, asserting in federal filed suit assets, including claims relating to the ties agreement was void the settlement obligations under- arising contractual from original- relating alleging claims dur- by Johnson or assumed Howard taken The district court disputed projects. ly it the owner ing time when was partial sum- motion for granted Marriott’s and award- accepted HJC assets. ground that mary judgment on lodge refurbish- for the 1985 motor ed bids CIS and agreement between settlement held had been program, which ment and constituted Johnson was valid pending the by Howard abeyance Johnson of all CIS’s complete settlement a full and was on the company. purchase of court held claims. district original The from Howard list HJC obtained solely limited any claims of CIS were bidder CIS was successful Johnson. the terms of the settle- those based on giving projects, of these 1985 agreement. four ment $495,000 re- worth of in excess of tractor complaint, seeking dam- CIS amended work. furbishment alleged breach of settle- ages for the contract. named defendants asserts ment Defendant corpora- (parent Corporation HJC was Marriott given to CIS were of work worth purchased the stock tion settlement satisfaction Cady authority and CIS understood at scope David clear whether precise title 1. The defendant, HJC, would be award- speak time that for defendant in March Vancura had to lodge ing contracts. it motor record. Nor is refurbishment is not clear from the 1986 as agreement were satisfied the settlement Family 1985); Restau- receipt in 1986 CIS’s a matter of law doing business (Howard rants, Inc. $485,000worth of refurbishment work entity over name); the new a new under for HJC, defendant’s motion motor and that (which purchased as HJC known Johnson). granted. been j.n.o.v. should have the old Howard lodges from for sum- motion filed a The defendants II. (1) grounds that mary judgment j.n.o.v. is the the settlement obligations granting under The standard their re- governing a directed because satisfied as the standard agreement were same of motor Baking worth v. AM-7-7 in excess verdict. Monette ceived not, work; (2) (6th Cir.1991); if v. lodge refurbishment Minton 929 F.2d (6th CIS must damages recoverable F.2d Cir. potential Ry., 368 Southern net profit 1966). required apply to CIS’s limited courts are Federal (3) work; of refurbishment for a directed courts’ the Ohio standard speculative. gov claimed CIS law substantive verdict because Ohio’s this motion. denied district Duramed Phar action. erns this Potti filed to HJC because stayed (6th as case was maceuticals, F.2d Cir. Corporation bankruptcy; Marriott 1991). Ohio’s standard We have stated *5 (Mar- against Marriott The case dismissed. follows: Inc.) Restaurants, tried to Family riott present- a court require that courts Ohio in 1990. jury November a a directed verdict a motion for ed with permissible and all the evidence in construe a verdict jury general returned strongly in most in the inferences therefrom of CIS awarded favor whom the party against the timely filed favor Marriott amount neither its made and consider and law on motion is findings of fact proposed credibility counterclaim, along nor the weight of the evidence declaratory judgment disposing of the mo- in judgment notwithstand- of the witnesses a motion for with or, alternatively, granted only a will be (j.n.o.v.) a motion ing verdict tion. Such in district court this if, considering trial. The the evidence for new after motion but one reasonable light, these motions. there can be denied proper verdict. as to the conclusion of issues raises a number omitted). If reasonable minds (citations court Id. contending that district appeal, Marriott had disagree as whether for a could first, denying its motion in erred: under the settle- obligations ground its j.n.o.v. on satisfied verdict or directed the district court agreement, the settlement then obligations under ment motion for Marriott’s deny as a matter satisfied was correct agreement were second, law; admitting parol j.n.o.v. in evidence meaning attached relating to the determination, we start make this To that ev- provisions because contract various The ex- claims. analysis of CIS’s terms to and contradicted added idence agree- of the settlement press language unambiguous settle- integrated, fully of the first, rights: gave CIS two ment third, leaving ap- in agreement; ment second, list, on the bidders’ rule to parol evidence plication of $300,000worth of work. total of awarded jury to and, finally, allowing in
jury;
CIS,
being “put on
bid-
According to
part
on the
damages based
calculate
right to
it had
list” meant that
ders’
refurbished
of motel rooms
number
of defendant’s
invitations on all
receive bid
contending that
cross-appeals,
work, along
lodge refurbishment
motel
preventing
the district
erred
being
expectation
legitimate
concerning dam-
presenting evidence
work
percentage
a certain
through 1986.
beyond
years
ages
CIS,
Further, according to
on which it bid.
the settle-
figure mentioned
below,
we con-
reasons
stated
For
not the total amount
agreement
under ment
obligations
that defendant’s
clude
awarded,
that the district court
CIS concedes
entitled to be
of work it was
of the minimum of
that the settlement
simply
guarantee
found
supposed
fully integrated,
to be awarded. To
and even now does not
it was
agreement had
prove
finding.
that the settlement
this
The law in Ohio con
dispute
(for
does not con-
given
fully
even CIS
cerning
the effect to be
to a
expressly states
integrated agreement
tend
is clear:
this),
present
of its
sought to
evidence
negotia-
parties,
following
Where the
“put you on
understanding
phrase
tions,
promises
make mutual
list,”
understanding
and of its
the bidders’
integrated
an unam-
thereafter are
into
obligations
parties.
the intended
contract,
biguous
duly signed by
written
of this
the admission
The court allowed
them,
give
par-
to the
courts will
effect
and, consistently with that
evidence
parol
intentions_
expressed
Inten-
ties’
jury
follows:
ruling, charged as
expressed
writing
in the
are
tions
views of
have different
may
deemed to have no existence and
they
obligated to do under
what
by parol
be
evidence.
shown
plaintiff
Agreement.
Settlement
Community
Hosp.
Aultman
Ass’n v.
Mut.
had two
contends that Howard Johnson
Co., 46 Ohio St.3d
544 N.E.2d
Ins.
Agree-
obligations
under
Settlement
(1989)(citations omitted; emphasis
add
First,
plaintiff
contends that
ment.
ed).
fully
is not
Even where
agreed
to send
integrated, parol
admit
evidence cannot be
for all
plaintiff invitations to bid
motor
vary
ted if its effect will be to
or contradict
lodge
work that Howard
refurbishment
specifically
matter that is
covered
would undertake from that date
written
of the contract.
terms
Id.
plaintiff contin-
long
as the
forward
implied promises
There can
in a con
perform
according to
*6
ued to
the bid work
spe
any
tract in relation to
matter that is
Second,
plans
specifications.
if
bid
by
cifically covered
the written terms of
plaintiff
the
not the successful low
was
Burr,
App.3d
the contract. Jost v.
69 Ohio
during
bidder on
worth of work
(1990) (citing
590 N.E.2d
Ka
year,
had an
the first
Laird,
chelmacher v.
92 Ohio St.
obligation
additional
(1915)
111),
(syllabus
and Ault
N.E.
plaintiff
performance
the future
man,
923).
at
544 N.E.2d
equal a minimum of
of work that would
provides
law further
Ohio
of work.
interpretation
terms
of written contract
closing argument,
pre-
counsel
CIS’s
determina-
is a matter of law for initial
damages
of
based on
sented
calculation
by
only
tion
the court....
It is
when the
requiring refurbish-
the 1566 motel rooms
language
ambiguous
relevant contract
ment work in 1984 on which CIS was not
interpretation
job
is turned
argued that
invited to bid. Counsel
deter-
over to the fact finder ... and the
averaged
percent
of 44
award
ambigu-
mination
a contract
whether
they
contracts on
had submitted bids
ous is made as a matter of law
which,
per
past,
in the
at a total of $2006.58
court.
room,
in income
would have resulted
$411,708.
(citations omitted).
$1,382,614,
Potti,
gross profit
and a
4. request the court at a construction ambiguous, evidence it follows that was not clearly not the It is remake the intentions, understandings relating and to CIS’s do Id. at 923-24. of the court to so. function expressed agreement, not have in the should not add Parol evidence cannot been admitted. 758 this date year from one If after unnecessary to work. it makes conclusion This bidder by not successful you raised been issues have remaining address work, agree to cross-appeal. For we of CIS’s and Marriott district of stated, faith, subject judgment you with
reasons is REVERSED, judgment is court for quotes, rates prevailing to of favor entered in hereby ordered which, to- by you of work performance Restaurants, Family defendant may you of work the amount gether Inc.5 prior year, during the awarded have been of sum equal the Judge, JONES, Circuit R. NATHANIEL J.A., that this majority The holds at 417.. dissenting. list on a placed entitled CIS language I find opinion, majority Contrary to get ever it guarantee that would no am- in the contract language disputed project. As Marriott— bid invited to Furthermore, I find biguous. De- to Howard the successor any work damages in addition entitled notes, John- in this fendant case— Therefore, I re- it HJC. every contractor not policy was that son’s dissent. spectfully for bids was solicited list on the bidders’ law, exists “[ajmbiguity Ohio Under were, Therefore, at there every project. be determined a term cannot only where lists—we speaking, two conceptually least or of corners from the four and “subset” “master” them may call susceptible language is contract where list was master bidders’ lists. The bidders’ interpretations.” reasonable or more two companies that essentially a list of Inc., Pharmaceuticals, v. Duramed Potti deal with possibly Johnson would Cir.1991). (6th Further- 641, 647 F.2d 938 work. “rehab” on construction citing indicates more, majority as the the con- a list of list subset bidders’ Co., 57 Ohio Dev. Woodpath v. Latina to bid get actually solicited who tractors 262, (1991) 263-65 212, 567 N.E.2d St.3d project. With Howard particular aon Community v. Hosp. Ass’n Aultman mind, contract could N.E.2d Johnson’s 544 policy St.3d 46 Ohio Mut. Ins. the master gets are to be that CIS mean (1989), terms 922-24 with, it guarantee that meaning some ordinary unless list given their from the actually bid on clearly evident get solicited other would ever or the instrument para- content face or overall sentence If the first project. result. absurdity would isolation, manifest seems to be this read in graph is Presumably, a interpretation. plausible case,-the pertinent con- Turning to consideration give valuable party could follows: reads language as tract list. the master right be on imme- agree [i.e., Howard Johnson] We conclusion reach this seems to majority on the bid- [i.e., put you diately to CIS] though it is reading this first sentence rehab construction list for ders’ during plaintiff been forewarned ‘‘If had entered judgment must be 5. Our conclusion holdings not admissible upon such our [evidence] is based trial favor in defendant’s ambiguous foun- supplied further conceivably is not could have that the settlement law, fully as a satisfied Id. at totally and was evidence.” diferent as a matter even dation or require does Broadcasting Our conclusion v. matter analysis law. Co. (quoting Midcontinent 1344 adduced evidence (8th of whether the Airlines, F.2d North Central Cir.1973)). theory support of liabil- was sufficient suffi- is not the question here liability theory ity find because we support of an other- ciency the evidence Consequently, áre no legal there merit. without viability theory, legal but the valid wise trial. This for a new remand fact issues to liability theory of theory legal itself. Where Douglass Eaton v. decision court's recent merit, judgment proper to enter legal isit lacks notwithstanding Cir.1992), (6th does not Corp., 956 F.2d See Brunswick verdict. Douglass that a held result. require a different Bowl-O-Mat, Inc., 429 U.S. Corp. Pueblo ignore improperly admitted evi- may 690, 697-98, 489-90, 50 L.Ed.2d S.Ct. j.n.o.v. based ruling on a motion- dence in upon *10 (1977). at 1343- insufficiency Id. of the evidence. “put fails to further define para- The contract the rest of the unconnected result, As a you on the bidders’ list.” graph. interpretations these two is rea- either of in iso- cannot be read The first sentence Therefore, phrase I that this find sonable. lation, Reading the first sen- however. ambiguous as a matter of law.1’2 is the rest of the conjunction tence impression the indelible paragraph leaves jury Because the that “bidders’ found consideration give valuable supposed that CIS did list” meant that CIS was be master list. put every on the just on construction allowed bid you not been the language, project ... have Marriott solicited “rehab” “[i]f $300,000 of bids, bidder and because CIS was not allowed successful given the work,” every project, question that was to be then be- implies bid on comes, appropriate damages? or more be a on one what are the opportunity to bidder $300,000. There was no projects worth majority argues fact that bidder an unsuccessful way CIS could be in 1984 and 1985 CIS was not invited bid instance, being without, a bid- in the first extension) (pursuant to a contract does der. agreement. The establish a breach of the majority contends that consistent with the foregoing, CIS and Howard Based on the terms, agreement’s Howard Johnson was the contract to have must intended Johnson obligated negotiate with contractually actually get invited to mean that CIS performance by good faith for project. Unlike on at least one bid $300,000 worth of work when CIS interpretation to be the I find this majority, get least worth of work. did not at the contract terms. ordinary HJC, majority further contends that I I indicated what deem Because have contrac- successor to Howard Johnson’s contract, interpretation of the a reasonable CIS, satisfy the obligations to could tual indicated majority has and because as was minimum amount of work interpreta- a reasonable what it holds be It is also required under contract. contract, I hold that the tion of majority asserted ambiguous is as a matter law. contract satisfied CIS could have received were ambiguity further There is a $400,000 worth of award of over HJC’s intend What did the tract. to CIS in 1986. you the bidders’ list”? phrase, “put reasoning directly follows the ma- This interpretations “put you on Two language of the jority’s conclusion First, suggested. list” are bidders’ I unambiguous. find Because gets mean phrase could that CIS fundamentally ambiguous, I language list, it getting on this list and virtue taken on analytical approach differ on the or “rehab” gets to bid on all construction relationship Howard between solicits projects for which interpret HJC’s award- and how to and CIS interpretation assumes bids. This to CIS worth of work ing of over is, only one list conceptually, at least there in 1986. and subset both the master that combines Second, ambiguous could phrase jury found lists. Because gets was to have gets put language on a list and to mean that CIS mean that CIS my project, it is on each projects opportunity that Howard Johnson to bid to bid on analyzed must allow CIS to bid view that the contract independently decides to jury’s understanding. With the interpretation assumes that there with on. This mind, Johnson’s lists, I namely a mas- verdict read really separate are two inCIS obligation list. and a bidder’s ter bidders’ subset phrase, undefined ambiguous, helped paragraph I define otherwise think the 1. Because I correctly "bidders’ list." ad- would hold that the district remaking parol Rather than mitted evidence. (as jury instructions majority CIS is also find that the contends I would proper. ambiguity parol allowing parol evidence requesting), evidence in this case *11 $300,- CIS performance faith that Howard to mean worth 1) if: negotiate with towas
Johnson project; each bid on was invited did project, CIS 2) bidding on each after It seems of work. worth receive one Johnson breaches if Howard to me that the con- conditions of the fundamental matter whether tract, it does Be- further with CIS. negotiates allow CIS did not cause Howard 1985, I in 1984 project each bid on Johnson breached would hold of the contract. condition a fundamental breach, is therefore By virtue damages entitled to find 1985. I years 1984 and for the given for damage award jury appropriate.3,4 years 1984 and herein, I would reasons stated For the affirm. McBee, Dendalee EATON
Charles Plaintiffs-Appellants, Warden; Palmer, Warden; JAMROG, Lieutenant; Sergeant; Olivier, Asbury, Officer; Wiend, Lovett, Sergeant; Defendants-Appellees. Officer, Henry, No. 92-1388. Appeals, Court States United Sixth Circuit. 11, 1992. Nov. Submitted Eaton, pro se. Charles 29, 1993. Jan. Decided
McBee, pro se. Dendalee Edick, Atty. Asst. Gen.
David G. (briefed), Office of the Donnelly Mark E. damage figure. I find profit final at a arrive theory was based on 3. CIS's 1) damages appropriate. theory following of rooms the number CIS’s formula: multiplied 1984 and 1985 was refurbished from by 2) resulting average price; of work of over 4. HJC’s award percentage figure multiplied dollar damages CIS separate from the CIS in 1986 is expected the suc- on which CIS of rooms to bid on it was not invited because incurred bidder; 3) resulting dollar cessful every project and 1985. in 1984 percentage of multiplied CIS’s amount was