finding modification by course of conduct where party accepted imperfect performance without objection
How later courts described this case
- finding modification by course of conduct where party accepted imperfect performance without objection
- to resolve ambiguities, court looked to practical construction by the parties
- “Where the terms in a contract are not ambiguous, courts are constrained to apply the plain language of the contract.”
Written by the judges who cited it.
The opinion
O’Donnell, J.,
dissenting.
{¶ 71} The matter before our court involves a breach-of-contract action between Auglaize County and the city of St. Marys in a dispute regarding an agreement for the disposal of solid waste. Although interesting, the case involves neither a novel legal issue nor a substantial constitutional question or an issue of public or great general interest. The issue in this case is whether the landfill agreement requires the county to pay for any postclosure costs despite the termination of the agreement.
{¶ 72} In response to a motion for reconsideration, this court also accepted a fourth proposition of law concerning the county’s obligation to pay the municipality pursuant to the contract when the auditor never certified funds according to R.C. 5705.41(D), an issue never passed upon or mentioned by the court of appeals.
{¶ 73} In my view, this case should be dismissed as having been improvidently accepted, as it fails to present a substantial constitutional issue or an issue of public or great general interest. This court ought not rule on matters not ruled on by appellate courts.
Lanzinger, J., concurs in the foregoing opinion.
Byron & Byron Co., L.P.A., and Stephen L. Byron, urging affirmance for amicus curiae, Ohio Municipal League.