Center Ridge Ganley, Inc. v. Stinn

Per Curiam.

The first issue before us is whether the introduction of parol evidence constituted reversible error.

The plaintiffs-appellants argue that the terms of the agreements in issue are clear and unambiguous, and therefore the trial court erred in admitting parol evidence. Appellants contend that a court cannot admit parol evidence to divine the intent of the contracting parties unless it first makes a finding that the contracts) is (are) unclear or ambiguous. Since. the trial court made no such preliminary finding, appellants submit that the trial court erred in “going outside the four corners of the contract in considering the parol testimony.” Appellants further submit that an unexecuted “Contingency Agreement” was proposed by the parties which would have effectively made the real estate agreement contingent upon the consummation of the assets agreement. Since this contingency agreement was never executed, appellants contend that the parties’ rejection of such contingency agreement had the same effect as if the parties had actually signed an agreement that stated that the real estate and assets agreements were independent of one another. In any event, appellants assert that the real estate agreement and the assets agreement were separate transactions, not dependent upon one another, since Thomas Ganley desired to obtain the real estate upon which the dealership was located, regardless of whether the assets agreement was consummated.

*313 Defendants-appellees argue that the real estate agreement was contingent upon the completion of the assets agreement, and that if one agreement was unsuccessful, the entire transfer of the dealership would fail. Appellees contend that parol evidence is proper to supplement the agreements, so long as such parol evidence does not alter or vary the terms of the written agreement. While appellees maintain that the clear language of the agreements indicates one contingent transaction (i.e., sale and transfer of the dealership), appellees point out that it was the appellants who first offered parol evidence before the trial court in order to show that the agreements were not contingent upon one another. Appellees submit that appellants did not object to the introduction of parol evidence at trial, and therefore cannot assign this as error on appeal. In addition, appellees argue that appellants’ argument on this issue should be rejected, even if it was error to admit the parol evidence, since it was appellants who invited or induced the trial court to commit the alleged error.

Upon consideration of the arguments submitted by both parties, we find appellants’ arguments to be unpersuasive for several reasons. While arguably appellants are correct that objection to the admission of parol testimony cannot be waived, see Florence v. Tri-State Savings & Loan Co. (App. 1974), 68 O.O. 2d 146, 322 N.E. 2d 322, we believe that more than a mere waiver of error is at issue in the cause sub judiee. As pointed out by the appellate court below, appellants “invited” the alleged error by calling Edmund Stinn, as on cross-examination, and eliciting testimony from him as to the intent of the parties when entering the contract. Appellants cannot then complain when the appellees, in turn, entered similar but contradictory evidence of intent. Under the “invited error” doctrine, “[a] party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make.” Lester v. Leuek (1943), 142 Ohio St. 91, 26 O.O. 280, 50 N.E. 2d 145, paragraph one of the syllabus. See, also, State v. Woodruff (1983), 10 Ohio App. 3d 326, 10 OBR 532, 462 N.E. 2d 457; 5 Ohio Jurisprudence 3d (1978) 97, Appellate Review, Section 543 et seq.

Notwithstanding the applicability of the “invited error” doctrine herein, the admission of parol testimony to explain certain ambiguous terms not inconsistent with or contradictory to the language of the contract was nevertheless proper in this cause. Charles A. Burton, Inc. v. Durkee (1952), 158 Ohio St. 313, 49 O.O. 174, 109 N.E. 2d 265. In our view, the real estate agreement was not altogether complete on its face, but rather its very terms indicated that it was part of a larger transaction involving the sale of an automobile dealership. The evidence submitted as to whether the real estate agreement was contingent upon the consummation of the assets agreement did not vary or alter the terms of the real estate agreement; it merely explained the operation of the contract as intended by the parties. In this vein, it is interesting to note that the appellants rely on parol evidence in order to strengthen their case before this *314 court. By pointing out the unexecuted “Contingency Agreement,” appellants are asking this court to find the intention of the parties outside the four comers of the agreements in issue. In essence, appellants wish this court to ignore the parol evidence favorable to appellees, and to heed the parol evidence submitted by them. This court, however, uniformly declines to second-guess the proper weight that should be ascribed to evidence, since such a function should more properly be left to the trier-of-fact. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 10 OBR 408, 461 N.E. 2d 1273.

In any event, upon a review of the trial court’s decision, it is not readily apparent that the trial court relied solely on the parol evidence in finding the agreements in issue to be interrelated. As a general rule of construction, a court may construe multiple documents together if they concern the same transaction. See White v. Brocaw (1863), 14 Ohio St. 339; and Thayer v. Luce (1871), 22 Ohio St. 62. We believe that a fair reading of the agreements in issue supports the trial court’s finding that said agreements were contingent upon one another, and thus we refrain from disturbing that decision.

Therefore, we hold that the lower courts did not err in denying appellants the equitable remedy of specific performance, and that the decision of the court of appeals with respect to the admission of parol evidence should be affirmed.

The second issue presented is whether the denial of specific performance in this cause precludes, as a matter of res judicata, an action for money damages for breach of contract.

Appellants contend that notwithstanding the denial of specific performance by the trial court, their claims for money damages remain viable. The appellees, on the other hand, submit that while the denial of specific performance of a contract does not, as a matter of res judicata, preclude a subsequent claim for money damages, the trial court below found that appellants were the parties who breached the assets agreement, and that therefore the court could deny appellants’ request for damages without further hearings.

Our research indicates very little precedent to guide this court in the determination of this issue. Long ago, this court held that “[a] judgment of dismissal of a petition for the specific performance of an agreement and of a counter-claim asking a rescission of the same, is no bar to an action for the recovery of money paid on the agreement * * *.” Porter v. Wagner (1881), 36 Ohio St. 471, paragraph one of the syllabus.

While some jurisdictions have held that under circumstances similar to the cause sub judice, a claim for specific performance and a claim for damages constitute the same cause of action, other courts have found that the two claims constitute different causes of action whereby a decree allowing or denying specific performance does not preclude, as a matter of res judicata, a subsequent action for damages for breach of contract. See Annotation (1971), 38 A.L.R. 3d 323.

*315 We believe that under the facts of the instant cause, the better view is that which recognizes a claim for specific performance and a claim for money damages arising out of the same factual context as representing different causes of action. Therefore, we agree with appellants that a finding that a party is not entitled to the equitable relief of specific performance is merely a denial of one special form of damages. In our opinion, such a denial of specific performance should not necessarily preclude, by way of res judicata, an action for money damages. Thus, we are persuaded by Judge Markus’ rationale in his dissenting opinion below where he stated, “* * * I would reverse the judgment which denies the buyer any relief for the sellers’ calculated breach of the agreements. The trial court had discretion to deny equitable relief because the buyer had not completed its performance after the sellers’ anticipatory breach.”

In addition, in reversing the trial court on this issue, we are mindful of the fact that the evidence and testimony proffered below related solely to the equitable request of specific performance. Upon remand, the trial court should determine any damages which the appellees caused the appellants by failing to satisfy their contractual obligations.

Based on all the foregoing, we affirm the court of appeals’ judgment with respect to the denial of specific performance and the admission of parol evidence. However, with respect to the issue of money damages, the judgment of the court of appeals is reversed, and the cause is remanded to the trial court for further proceedings in accordance with this opinion.

Judgment ajfirmed in part, reversed in part and cause remanded.

Sweeney, Locher, Holmes and H. Brown, JJ., concur. Moyer, C.J., Douglas and Wright, JJ., concur in part and dissent in part.