[Cite as N. Frozen Foods, Inc., 2011-Ohio-2399.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95493

NORTHERN FROZEN FOODS, INC. 

PLAINTIFF-APPELLANT 

vs. 

DARIO PICCIOTTI, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

REVERSED AND REMANDED 

Civil Appeal from the 

 Cuyahoga County Common Pleas Court 

Case No. CV-718879 

BEFORE: Boyle, P.J., Jones, J., and E. Gallagher, J. 

 

RELEASED AND JOURNALIZED: May 19, 2011 
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ATTORNEYS FOR APPELLANT

Donald A. Mausar 

Amanda Rasbach Yurechko 

Weltman, Weinberg & Reis 

323 W. Lakeside Avenue 

Suite 200 

Cleveland, Ohio 44113 

ATTORNEY FOR APPELLEE

Stephen G. Thomas 

Stephen G. Thomas & Associates Co., LPA 

100 North Main Street 

Chagrin Falls, Ohio 44022 

MARY J. BOYLE, P.J.: 

{¶ 1} Plaintiff-appellant, Northern Frozen Foods, Inc., d.b.a. Northern Haserot 

(“Northern Haserot”), appeals the trial court’s order granting partial judgment on the pleadings 

in favor of defendant-appellee, Dario Picciotti, on its breach of contract claim. The trial 

court found that the contract containing the personal guaranty provision was ambiguous and 

further concluded that Picciotti signed the agreement solely in a representative capacity. 

Because the agreement is ambiguous, we find that the trial court erred in granting judgment on 

the pleadings and, therefore, reverse and remand for further proceedings. 
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Procedural History and Facts

{¶ 2} In February 2010, Northern Haserot filed the underlying action against Picciotti 

and 2261 DLP Limited, seeking to recover damages under an agreement titled “Terms of Sale 

on Credit/Credit Agreement/Personal Guarantee,” which seller attached to the complaint. 

Northern Haserot also attached an “Aged Charge Payment Summary,” wherein the account 

holder-customer is identified as “303 Allure/2261 DLP LTD” and as having an outstanding 

principle balance of $13,827.04. Northern Haserot further attached a copy of a check drawn 

on an account of 2261 DLP Limited and made out to Northern Haserot in the amount of 

$4,616.44, bearing a “Payment Stopped” stamp on its face. In reference to the check, 

Northern Haserot alleged that it is “entitled to three times money judgment on the NSF check 

which was tendered to [Northern Haserot].” 

{¶ 3} Picciotti and 2261 DLP Limited filed a joint answer, denying the majority of 

Northern Haserot’s allegations and asserting numerous defenses, including that Picciotti signed 

the “Terms of Sale” only in his capacity as general manager of the purchaser and not in his 

personal capacity. Picciotti subsequently moved for judgment on the pleadings, arguing that 

the contract cannot impose individual liability on him because “it ambiguously defines 

Purchaser and Undersigned as the same person or entity while seeking to separate the identity 

of those defined terms for purposes of personal liability.” He further argued that his 
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signature on the contract “is not an express affirmation of a personal guarantee for the debts of 

ALLURE,” thereby entitling him to judgment on the pleadings. 

{¶ 4} The trial court agreed and granted Picciotti’s motion, finding the contract to be 

ambiguous and concluding that “[t]he lack of an additional signature, separated from the 

business entity’s name and without the designation of general manager, is fatal to plaintiff’s 

claim of personal liability against defendant Dario Picciotti.” In accordance with Civ.R. 

54(B), the trial court further noted in its judgment entry that “there is no just reason for delay.”

 Northern Haserot appeals the decision, raising the following assignment of error: 

{¶ 5} “Whether the trial court committed reversible error by granting defendant’s 

motion for judgment on the pleadings, disregarding the terms [of] a clear, and unambiguous 

personal guaranty and by dismissing defendant entirely where additional causes of action 

remained which had not been addressed.”

Judgment on the Pleadings

{¶ 6} We review an order granting judgment on the pleadings de novo, applying the 

same standard of review the trial court used. Vinicky v. Pristas, 163 Ohio App.3d 508, 

2005-Ohio-5196, 839 N.E.2d 88, ¶3. “The determination of a motion for judgment on the 

pleadings is limited solely to the allegations in the pleadings and any writings attached to the 

pleadings. Pursuant to Civ.R. 12(C), dismissal is appropriate where a court (1) construes the 

material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in 
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favor of the nonmoving party as true, and (2) finds beyond doubt that the plaintiff could prove 

no set of facts in support of his claim that would entitle him to relief.” (Internal quotations and 

citations omitted.) Id. 

{¶ 7} Northern Haserot argues that the trial court erred in granting Picciotti judgment 

because the personal guaranty in the contract is clear and unambiguous. It further contends 

that Picciotti’s addition of “GM” following his printed name does not “trump” the clear 

wording of the contract containing the personal guaranty. In support of this argument, 

Northern Haserot relies on the following provision in the contract: 

{¶ 8} “IV. As a condition of Northern Frozen Foods, Inc. dba Northern Haserot 

extending credit to Purchaser, the Undersigned hereby personally guarantees payment in full to 

Northern Frozen Foods, Inc. dba Northern Haserot including delinquency charges, collection 

costs and attorney fees, and waive any presentment, demand, protest, and any other notice 

from Northern Frozen Foods, Inc. dba Northern Haserot regarding this guarantee of payment.”

{¶ 9} Northern Haserot further points out that the signature block at the bottom of the 

contract expressly states “Individually” and that the title of the document even incorporates 

“Personal Guarantee.” Reading the contract in its entirety, and given Picciotti’s failure to 

cross-out the “personal guarantee” provision, Northern Haserot argues that the trial court 

wrongfully concluded that Picciotti is not personally liable under the contract. 
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{¶ 10} “General contract law requires a court to interpret a contract so as to carry out 

the intent of the parties.” Hoppel v. Feldman, 7th Dist. No. 09CO34, 2011-Ohio-1183, ¶31, 

citing Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 78 

Ohio St.3d 353, 1997-Ohio-202, 678 N.E.2d 519. “[T]he intent of the parties to a contract 

resides in the language they chose to employ in the agreement.” Shifrin v. Forest City Ent., 

Inc. (1992), 64 Ohio St.3d 635, 638, 597 N.E.2d 499. 

{¶ 11} If a contract is clear and unambiguous, then its interpretation is a matter of law 

that we review de novo. Davis v. Loopco Indus., Inc., 66 Ohio St.3d 64, 1993-Ohio-195, 609 

N.E.2d 144. If, however, the contract is ambiguous, ascertaining the parties’ intent 

constitutes a question of fact that may require the consideration of parol evidence to determine 

the parties’ intent. Crane Hollow, Inc. v. Marathon Ashland Pipe Line, LLC (2000), 138 

Ohio App.3d 57, 74, 740 N.E.2d 328; U.S. Fid. & Guar. v. Aultman St. Elizabeth Med. Ctr. 

(1999), 129 Ohio App.3d 45, 55, 716 N.E.2d 1201. Furthermore, “conflicting provisions in a 

contract cannot be interpreted as a matter of law.” JP Morgan Chase, NA v. Bethel, 5th Dist. 

No. 09CA0110, 2010-Ohio-2987, ¶18. Instead, the matter should be resolved by the fact 

finder, “who must then rely on parol evidence.” Id., citing Fairmont Creamery Co. v. Ewing 

(1932), 43 Ohio App. 191, 182 N.E. 883. 

{¶ 12} We agree with Northern Haserot’s contention that Picciotti’s mere addition of 

the initials “GM” — that presumably stand for “General Manager” — does not conclusively 
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establish that he was signing solely in a representative capacity, especially since he signed his 

name on the line specifically designated as “Individually.” We likewise find that the trial 

court erred in concluding that the absence of a signature line for the business entity is fatal to 

Northern Haserot’s claim of personal liability against Picciotti. Indeed, “[w]hether a note has 

been executed by a party in his individual or representative capacity, is a question to be 

determined from the consideration of the whole instrument.” Ohio Carpenters’ Fringe 

Benefit Fund v. Krulak, 8th Dist. No. 88872, 2008-Ohio-220, at ¶40, citing Aungst v. Creque 

(1905), 72 Ohio St. 551, 555, 74 N.E. 1073. 

{¶ 13} Contrary to Northern Haserot’s assertion, however, we find that the contract 

contains ambiguities and inconsistent provisions. For example, the first sentence of the 

contract identifies the “Undersigned” as the “Purchaser,” but then at least two separate 

provisions following this designation refer to them as separate and distinct parties. Given 

that the contract is ambiguous, we find that the intent of the parties cannot be resolved 

pursuant to a motion for judgment on the pleadings. We therefore find that the trial court 

erred in granting the motion and resolving the ambiguities as a matter of law without allowing 

the parties to present parol evidence. See Bethel, supra. 

{¶ 14} Having found that Northern Haserot’s breach of contract claim against Picciotti 

could not be disposed of by a motion for judgment on the pleadings, we need not address 
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Northern Haserot’s additional arguments regarding the trial court’s alleged error in failing to 

address Northern Haserot’s other purported claims against Picciotti. 

{¶ 15} The sole assignment of error is sustained. 

{¶ 16} Judgment reversed and the case is remanded to the lower court for further 

proceedings consistent with this opinion. 

It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

 

MARY J. BOYLE, PRESIDING JUDGE 

LARRY A. JONES, J., and 

EILEEN A. GALLAGHER, J., CONCUR