applying “plainly wrong” standard of review to trial court’s interpretation of ambiguous contract language requiring consideration of extrinsic evidence of parties’ intent
How later courts described this case
- applying “plainly wrong” standard of review to trial court’s interpretation of ambiguous contract language requiring consideration of extrinsic evidence of parties’ intent
- only where contract is ambiguous may “an ‘objective interpretation’ ... require evidence of the parties’ intent re garding the meaning of term(s), thus presenting a question of fact”
- if evidence of the parties’ intent is required to interpret a contract, a question of fact is presented
Written by the judges who cited it.
The opinion
SCHWELB, Associate Judge,
concurring:
I join the judgment and opinion of the court. I add a few words, however, regarding the question whether the cap in the Agreement on JBG’s liability applies to counsel fees.
Paragraph 31(P) of the Agreement provides that “Notwithstanding the other provisions of this Agreement to the contrary, nothing herein subjects PARTNER to personal liability to OHIO in excess of ... TEN MILLION DOLLARS less [certain cash contributions by PARTNER].” The language of this paragraph, as the court points out, is unqualified.
The trial judge was fully aware of this provision. He concluded, however, that
the cap contained in the Agreement relates specifically to the requirements of the Agreement itself and not to attorneys’ fees and costs. Typically, an attorneys’ fees provision would not be included in any calculation of amounts owed under a contract. If the attorneys’ fees were meant to be limited in any manner, the parties would have so stated in the attorneys’ fees provisions of the Agreement and the Guaranty.
In my opinion, the judge’s view is not at all unreasonable. The parties have cited no authority, however, and I am aware of none, to support the proposition that an otherwise absolute cap should be construed as excluding counsel fees. No testimony was offered as to the practice in the business community or as to any negotiations relating to paragraph 31(P). I find the issue to be a very close one, but I am not prepared to say that my colleagues are wrong in their reading of the Agreement as a whole.