[Cite as Bates v. Cincinnati, 2013-Ohio-5893.] 

 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

JAMES BATES, 

WILLIAM POEHNER, 

WILLIAM NINTRUP, 

STEVEN HALE, 

WILLIAM MICHAEL HENDERSON, 

JEFFREY FISHBURN, 

JOSEPH COSTELLO, 

RONALD BLUESTEIN, 

CRAIG W. CANTY, 

ROGER J. HABERTHIER, 

PASQUALE J. CIPOLLONE, 

MICHAEL W. HEITZ, 

CAROL A. WESTERMEYER, 

ELLEN KATHMAN, 

GEORGIA RUCH, 

MICHELLE NASH, 

MARTHA GENTRY, 

MARK JONES, 

M. PATRICIA HANDEL, 

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APPEAL NO. C-130145 

TRIAL NO. A-0711838 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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DAVID P. MCKENRICK, 

RICHARD M. KOOPMAN, 

JAMES B. SUITS, 

PAMELA J. GREELY, 

DARLENE GRIM, 

DONNA WOLFF, 

ELLEN M. WRIGHT, 

DEARY KELLY, 

DENNIS WESTON, 

WILLIAM PHELPS, 

KATHY A. GOERL, 

CAROL L. WALKER, 

CHERYL ISAACS, 

LUCY COATES, 

LAURA BROWN, 

DELORIA J. KELLEY, 

MELISSA SMITH, 

VICTORIA D. ROBINSON-HUNTER, 

KAY PRESTON, 

ROBERT MICHAEL SHRYOCK, 

DIANE GLOS, 

CARL RIESENBECK, 

TAMMY EDDS, 

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OHIO FIRST DISTRICT COURT OF APPEALS

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Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Reversed and Judgment Entered 

Date of Judgment Entry on Appeal: December 24, 2013 

Hardin, Lazarus & Lewis, LLC, Donald E. Hardin and Kimberly A. Rutowski, for 

Plaintiffs-Appellees, 

John P. Curp, City Solicitor, Graydon Head & Ritchey, LLP, and Steven P. Goodin,

for Defendant-Appellant. 

Please note: this case has been removed from the accelerated calendar. 

CHARLES LAMMERS, 

PEGGY MEADOWS, 

DEVINDER SAGGAR, 

LAWRENCE HILL, 

PAUL ZOECKLEIN, 

JOANN LENZER, 

 and 

JOHN SAMUELSON, 

 Plaintiffs-Appellees, 

 vs. 

CITY OF CINCINNATI, 

 Defendant-Appellant. 

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OHIO FIRST DISTRICT COURT OF APPEALS

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DEWINE, Judge. 

{¶1} This case involves a group of employees who participated in an earlyretirement program offered by the city of Cincinnati. The issue is whether the city 

violated its agreement with them when city council passed an ordinance that allowed 

other retirees who had retired previously to receive better medical benefits than those 

who participated in the early-retirement program. The trial court determined that it 

had, but we disagree. We conclude that the agreement that the city executed with 

participants in the early-retirement program was unambiguous, and that nothing in the 

agreement guaranteed a certain level of medical benefits or prohibited the city from 

modifying retiree medical benefits. We therefore reverse the judgment of the trial court 

and enter judgment for the city. 

I. 

{¶2} In 2007, the city of Cincinnati was faced with a budget shortfall and the 

possibility of employee lay-offs. To alleviate the problem, City Manager Milton Dohoney 

proposed that the city adopt an early-retirement-incentive program to move some 

employees and positions from the city’s operating budget to the Cincinnati Retirement 

System (“CRS”). To implement the proposal, the city in July 2007 offered early 

retirement to employees with at least 28 years of service. Under the city’s Early 

Retirement Incentive Program (“ERIP”), eligible employees were offered two years of 

employment credit to allow them to retire earlier. The employees would receive initial 

monthly pension benefits that were seven percent more than they would have received 

absent the two-year employment credit. 

{¶3} To accept the offer of early retirement, the employees were required to 

sign a binding declaration of intent prior to September 1, 2007. The employees were 
OHIO FIRST DISTRICT COURT OF APPEALS

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then required to sign a second agreement—“The CRS Voluntary Early Retirement 

Incentive Program Release Agreement” (“ERIP Agreement”)—which laid out the terms 

and conditions of the program and superseded all prior agreements. 269 employees 

accepted the offer. Forty-nine of these employees (“ERIP participants”) are the 

plaintiffs-appellees in this case. 

{¶4} At the time that the ERIP participants signed the declarations of intent, 

current Cincinnati employees were receiving 80/20 medical coverage, which meant that 

the employees were responsible for 20 percent of their medical costs. Members of the 

CRS were responsible for only four percent of their medical costs under a 96/4 coverage 

plan. In a letter dated May 25, 2007, the city informed members of the CRS that, as of 

January 1, 2008, members of CRS would receive the same 80/20 medical coverage that 

current employees received. The change would save the CRS $267 million and reduce 

the city’s annually required CRS contribution by $23.2 million. The change would also 

bring the retirees’ medical coverage into line with the municipal code, which provided 

that retirees would receive the same benefits as current employees. See Cincinnati 

Municipal Code 203-43(b)(i). 

{¶5} The city manager recognized that the idea of moving current retirees to 

an 80/20 coverage plan would be “a difficult and sensitive subject.” The retirees were 

accustomed to paying a lower share of healthcare costs. To ease the transition for the 

current retirees, city council considered making the change on a going-forward basis, 

applying only to employees who retired after December 31, 2007. But, as pointed out by 

the city manager, allowing retirees to maintain the better plan would result in a cost 

increase to CRS and less savings for the city. As a compromise, on September 26, 2007, 

city council passed an ordinance that allowed the current members of the CRS to keep 

their 96/4 plan with an eye toward moving them into the less generous 80/20 plan in 
OHIO FIRST DISTRICT COURT OF APPEALS

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the future. But the ordinance specifically excluded the ERIP participants from the 

provision. The effect of the ordinance was that members of the CRS who had not retired 

under the city’s ERIP maintained their 96/4 plan, while ERIP participants, even those 

who had retired as of September 26,1 were moved to the 80/20 plan as of January 1, 

2008.2 The ERIP participants assert that this differed from their understanding that, as 

part of their early retirement, they would receive the same medical coverage as current 

retirees. 

II. 

{¶6} The ERIP participants filed a lawsuit against the city, alleging that the 

city had breached its agreements with the ERIP participants and had fraudulently 

induced the participants to accept the ERIP. The ERIP participants also sought to 

enjoin the city from providing them medical coverage different from that provided to 

other members of the CRS. 

{¶7} The parties filed opposing motions for summary judgment, which the 

trial court denied. At a hearing before the court, the ERIP participants testified that they 

had been assured by various members of the city administration that they would receive 

the same medical benefits that current CRS members were receiving. Following the 

hearing, the court concluded that the city had not fraudulently induced the ERIP 

participants to accept the offer of early retirement, but that it had breached the ERIP 

agreements. The court then awarded damages to the ERIP participants after a separate 

hearing. 

 1 Of the 49 plaintiffs-appellants, 19 retired as of September 7, 2007. The remaining 30 retired 

after the passage of the September 26 ordinance. 

2 The retirees who were allowed to keep the 96/4 medical-coverage plan have since been moved to 

the 80/20 plan, so that as of January 1, 2012, all retirees are receiving the same medical coverage. 
OHIO FIRST DISTRICT COURT OF APPEALS

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III. 

{¶8} In its first assignment of error, the city asserts that the trial court erred 

when it held that the city had breached the ERIP agreements. The city contends that the 

ERIP agreements were unambiguous and that the court should not have considered 

extrinsic evidence. The city further argues that even if the extrinsic evidence was 

properly considered, it supported a finding that the city had not breached the 

agreements. 

{¶9} The ERIP participants counter that the language in the agreements was 

ambiguous, and that the court properly considered the testimony of the ERIP 

participants and other extrinsic evidence to determine the parties’ intent. 

{¶10} As in any breach-of-contract case, our starting point is the agreement. 

In its decision, the trial court concluded that 

[t]he two contract documents [the declaration of intent and the ERIP 

agreement], both prepared by the City, are contradictory in nature, as 

well as confusing, unclear, and ambiguous with respect to the health care 

benefits the Plaintiffs were to receive upon early retirement. 

Because it found the agreement ambiguous, the court concluded that it could consider 

extrinsic evidence to give effect to the parties’ intentions. 

{¶11} Although the trial court referred to both agreements in its decision, for 

purposes of the breach-of-contract action—which is the only claim at issue in this 

appeal—it is the ERIP agreements that were later signed by the participants to which we 

turn our attention. The agreements contained an integration clause that provided that 

the ERIP agreements superseded any prior agreements. Further, whether the ERIP 

participants were induced into signing the declarations of intent to retire goes to their 
OHIO FIRST DISTRICT COURT OF APPEALS

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fraudulent-inducement claim, for which the court found in favor of the city. The ERIP 

participants did not challenge that part of the trial court’s decision here. 

{¶12} All of the ERIP participants signed identical ERIP agreements. The 

participants focus on section 3 of the agreement, which provides the following: 

3. Medical Coverage. This Agreement shall not affect the manner or 

type of medical coverage for which Employee is eligible, once retired 

under CRS. However, all benefits under CRS, medical or otherwise, shall 

be applied in accordance with the Employee’s total service credit, 

including that earned pursuant to the ERIP. 

The trial court concluded, with little discussion, that the ERIP agreement was 

ambiguous. We disagree. 

{¶13} “Contract terms are ambiguous where the language is susceptible to two 

or more reasonable interpretations.” Wittstein v. Wittstein, 12th Dist. Madison No. 

CA2006-03-013, 2006-Ohio-6707, ¶ 8. “[W]here the terms in an existing contract are 

clear and unambiguous, this court cannot in effect create a new contract by finding 

an intent not expressed in the clear language employed by the parties.” Alexander v. 

Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978). We are unable to 

discern more than one interpretation of section 3. The section clearly excludes from the 

agreement the subject of medical coverage for the ERIP participants. 

{¶14} The remainder of the agreement is equally unambiguous. And the 

import of section 3 is strengthened by reference to other clauses in the agreement. 

Section 7 provides in part that 

[e]mployee agrees that the benefits afforded under this Agreement 

constitute the entire consideration provided to Employee in connection 

with his or her early retirement. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Thus, no additional promises about medical coverage were made by the city. Further, 

section 9 states that 

[t]his Agreement represents the entire understanding and agreement 

between the parties with respect to the subject matter hereof and 

supercedes (sic) all prior agreements and understandings of the parties 

hereto. No other representations, agreements, arrangements, or 

understandings, oral or written, concerning the subject matter of this 

Agreement shall be valid or binding upon the parties hereto unless 

specifically expressed in a writing signed by both parties. 

{¶15} Taken together, these sections underscore that the subject matter of the 

ERIP agreement is solely the early-retirement incentive being offered by the city and 

accepted by the employee. Because the terms of the ERIP agreement were 

unambiguous, the trial court erred when it considered extrinsic evidence to determine 

the intent of the parties. 

{¶16} Having determined that the ERIP agreement was unambiguous, we turn 

our attention to the determination of whether the city breached the terms of the 

agreement. The ERIP participants argue that by excluding them from the provision 

passed by city council on September 26, which allowed current members of the CRS to 

maintain their 96/4 medical coverage, the city breached section 3 of the ERIP 

agreement. The gist of their argument is that the city’s action was a breach because the 

only reason the ERIP participants did not receive the same medical coverage as the 

current members of CRS was that the ERIP participants had signed the ERIP 

agreement. Thus, the ERIP participants assert, the ERIP did exactly what section 3 

stated it would not—affected the manner and type of coverage for which the participant 

was eligible. 
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{¶17} While it is true that the city treated the ERIP retirees differently than 

other retirees with respect to healthcare benefits, there is nothing in section 3 that 

prevented it from doing so. Section 3, rather than delineating an obligation on the part 

of the city, merely limits the subject matter of the agreement to the early-retirementincentive program. As healthcare benefits did not fall within the purview of the 

agreement, the agreement did not guarantee a certain level of benefits. Nor does the 

section speak to the city’s authority with respect to retiree healthcare benefits, which this 

court recently recognized includes its authority to change retiree healthcare benefits. 

See Gamel v. Cincinnati, 1st Dist. Hamilton No. C-110613, 2012-Ohio-5152; Cincinnati 

Municipal Code 203-121. 

{¶18} Section 3 excluded the subject of medical coverage from the ERIP, and 

the city made no promises about the healthcare coverage it would provide to the 

participants. We therefore conclude that the city did not breach the terms of the 

agreement. Rather, it exercised its authority to change the retiree healthcare benefits. 

The first assignment of error is sustained. Disposition of this assignment of error makes 

the second assignment of error moot. The judgment of the trial court is reversed and 

judgment on the ERIP participants’ contract claim is entered for the city. 

Judgment reversed and judgment entered. 

CUNNINGHAM, P.J., concurs. 

FISCHER, J., concurs separately. 

FISCHER, J., concurring separately. 

{¶19} I concur with the majority’s decision. Based on the unambiguous 

language in the ERIP agreement, specifically section 9, the city did not breach any 

contract with the ERIP participants. I write separately, however, to point out that, 

troublingly, the city leaders and managers once again did nothing to correct the 
OHIO FIRST DISTRICT COURT OF APPEALS

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participants’ misconceptions, which misconceptions resulted from deliberate and 

repeated assurances made by city employees. See Gamel v. Cincinnati, 1st Dist. 

Hamilton No. C-110613, 2012-Ohio-5152, ¶ 19. 

{¶20} During an information session with employees who had been offered 

early retirement, John Boudinot, Director of the Cincinnati Retirement System, 

repeatedly assured the employees that, if they accepted early retirement, they would be 

treated the same as current retirees: 

MR. BOUDINOT: You’ll have the same benefits as every other retiree. 

* * * 

AUDIENCE MEMBER: * * * We will be treated as—the same as anybody 

currently in the system. 

MR. BOUDINOT: Yes. 

AUDIENCE MEMBER: Okay, thank you. 

MR. BOUDINOT: All the retirees—you’ll be just like every other retiree. 

AUDIENCE MEMBER: Just like a person who retired five years ago. 

MR. BOUDINOT: You’ve got it. 

Joint Exhibit 20, Early Retirement General Information Session of July 10, 2007, 

p. 9, 18. 

{¶21} The city’s assurances, through Mr. Boudinot, were echoed by other CRS 

employees in individual meetings with the participants. Because such assurances, and 

the unwillingness of the city leaders and managers to correct these misperceptions, are 

not actionable in a contract claim, I concur. That does not, however, make the city’s 

repeated acts proper. 

Please note: 

The court has recorded its own entry on the date of the release of this opinion.