[Cite as Garlock v. Silver Dollar Camp , 2021-Ohio-1690.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

PATRICIA A. GARLOCK, ET AL., CASE NO. 5-20-35 PLAINTIFFS-APPELLANTS,

v. SILVER DOLLAR CAMP, ET AL., O P I N I O N

DEFENDANTS-APPELLEES.

Appeal from Hancock County Common Pleas Court Trial Court No. 2019 CV 300 Judgment Affirmed Date of Decision: May 17, 2021

APPEARANCES: Bret A. Spaeth for Appellants Matthew T. Kemp for Appellee Walter AdelerCase No. 5-20-35

-2- WILLAMOWSKI, P.J. {¶1} Although originally placed on our accelerated calendar, we have elected pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a s ummary judgment entry. {¶2} Plaintiff-appellant Patricia A. Garlock (“Patricia”), individua lly and as executrix of the estate of Todd J. Garlock, appeals the judgmen t of the Hancock County Court of Common Pleas, alleging that the trial court err ed in finding that the defendant-appellee Walter Adeler (“Adeler”) (1) could continue the business of the Silver Dollar Camp and (2) could buyout a deceased partner’s in terest in the business pursuant to the terms of the partnership agreement. F or the reasons set forth below, the judgment of the trial court is affirmed. Facts and Procedural History {¶3} In 1987, Todd Garlock (“Todd”), Shannon Clark (“Clark”), Joe Um bs (“Umbs”), and Randy Peters (“Peters”) agreed to form a partners hip called the Silver Dollar Camp. Doc. 28. Through this partnership, these individuals intended to purchase a one-hundred-acre tract of land in New York and th en operate a hunting resort on this property. Doc. 28. On August 3, 1987, Todd, Cl ark, and Umbs signed a partnership agreement. 1 Doc. 28. Todd, Clark, Umbs, and Peters then effectuated the purchase of the property in New York. Doc. 28.

1 The original copy of this partnership agreement has not been l ocated. Doc. 28. However, a copy of the partnership agreement was filed with the trial court. Doc. 28, Ex. A. This copy is signed by Todd, Clark, and Umbs. Doc. 28, Ex. A. For some reason, the signature line for Peters was blank on this copy. Doc. 28, Ex. A. In this action, neither party disputes that the partner ship agreement that was filed with the trial courtCase No. 5-20-35

-3- {¶4} On December 28, 1987, Peters passed away, leaving Todd, Clark, and Umbs as the remaining partners of the Silver Dollar Camp partne rship. Doc. 28. Peters’s interest in the partnership was later transferred to t he remaining partners. Doc. 28, Ex. B. Subsequently, Clark decided to withdraw as a p artner, and Clark’s interest in the partnership was transferred to Adeler. Doc. 28 . On February 27, 1989, Todd, Clark, Umbs, and Adeler signed an agreement that ad dressed the terms of Clark’s withdrawal from the partnership. Doc. 28, Ex. E. C lark, Todd, and Umbs also conveyed their individual interests in the property to the Silver Dollar Camp partnership. Doc. 28, Ex. D. {¶5} In June of 2000, Umbs withdrew as a partner. Doc. 28. After p aying Umbs the amount of his capital contribution, Todd and Adeler de cided to continue the business as the only partners in the Silver Dollar Camp par tnership. Doc. 28. On August 15, 2007, Todd married Patricia. Doc. 28. On August 4, 2018, Todd passed away. Doc. 28. Patricia then became the executrix of T odd’s estate . Doc. 1. On September 27, 2018, Adeler sent Patricia a notice of int ent to purchase Todd’s interest in the partnership for the amount of Todd’s capital co ntribution pursuant to Article XIII of the partnership agreement. Doc. 28, Ex. G.

was, in fact, the agreement that governed the Silver Dollar Cam p partnership. Doc. 28. Rather, the parties dispute what portions of the partnership agreement remain enfor ceable after Todd’s death.Case No. 5-20-35

-4- {¶6} On August 9, 2019, Garlock filed a complaint with the trial cou rt in her individual capacity and as the executrix of Todd’s estate. Doc . 1. In this complaint, she requested the judicial dissolution and winding up of the bu siness partnership, including the sale of the property in New York. Doc. 1. On Oc tober 15, 2019, Adeler filed an answer and counterclaim. Doc. 20. He requeste d specific performance of the agreement. Doc. 20. {¶7} On February 26, 2020, the parties filed a stipulated set of fac ts and a copy of the Silver Dollar Camp partnership agreement. Doc. 28. On February 27, 2020, Patricia filed a motion for summary judgment. Doc. 29. On February 28, 2020, Adeler filed a motion for partial summary judgment. Doc. 30. The dispute between the parties concerns the enforceability of several prov isions of Article XIII in the Silver Dollar Camp partnership agreement. These dispute d provisions read, in their relevant parts, as follows: XIII. DISSOLUTION, WINDING UP; LIQUIDATION A. Causes of Dissolution. The partnership shall be dissolved on the happening of any of the following events:

* * * 3. Death, disability, or bankruptcy of any partner; * * *

* * * B. Right to Continue Business After Dissolution. On dissoluti on of the partnership, the remaining partners shall have the right to elect to continue the business of owning, operating, and maintaining the real estate of the partnership under the sameCase No. 5-20-35

-5- name, by themselves, or with any additional persons they may choose. * * *. C. Payment If Partnership Continued After Dissolution. If, on dissolution, the remaining partners elect to continue the partnership under Article XIII(B), they shall pay to the withdrawing, or expelled partner, or the estate of the deceased partner, the value of the partner’s interest as determined in Article XIII(D), as of the date of dissolution. Such payment s hall be made within six (6) months of dissolution. It is specifical ly agreed that on the death of any partner, an inventory and appraisal of the partnership property and sale of the deceased partner’s interest in the partnership, as provided by the Ohio Revised Code, shall be dispensed with, and that in lieu of the mode for the settlement of such deceased partner’s interest and disposition thereof provided for in Sections 1779.04 and 1779.0 6 of the Ohio Revised Code, such deceased partner’s interest shal l be settled and disposed of solely under the provisions of this agreement. D. Value of Partner’s Interest. In the event any partner resi gns from the partnership, or dies during the continuance of this Agreement, or disassociates themselves from the partnership for any reason, including expulsion, the remaining partners shall have the right to purchase the interest of the former partner b y paying for such interest the value determined as being the partner’s capital contribution * * *, provided that written not ice of such intention to purchase shall be served by the remaining partners upon the former partner, his heirs, executors, administrators, or assigns within sixty (60) days after such partner disassociates himself from the partnership for any reas on. * * *. During such sixty (60) day period the former partner, h is heirs, executors, administrators, and assigns shall have no rig ht in the partnership. Doc. 28, Ex. A. {¶8} Patricia argued that the provisions in Article XIII(B), (C), an d (D) became unenforceable when the partnership dissolved upon Todd’s death. Doc. 29.Case No. 5-20-35

-6- In response, Adeler argued that Todd’s death did dissolve the p artnership but did not render the provisions in Article XIII(B), (C), and (D) of t he partnership agreement unenforceable. Doc. 30. Thus, he argued that he had the right to continue the partnership pursuant to Article XIII(B) and the right to pu rchase Todd’s interest in the partnership pursuant to the terms set forth in the provi sions in Article XIII (C) and (D). Doc. 30. {¶9} On July 10, 2020, the trial court issued a judgment entry that denied Patricia’s motion for summary judgment and granted Adeler’s par tial motion for summary judgment. Doc. 33. The trial court found that the pro visions in Article XIII(B), (C), and (D) were enforceable and governed this disput e. Doc. 33. The trial court concluded that Adeler had the right to purchase Tod d’s interest in the partnership and the right to continue the business under Articl e XIII of the partnership agreement. Doc. 33. Assignment of Error {¶10} The appellant filed her notice of appeal on November 20, 2020. 2 Doc. 46. On appeal, Patricia raises the following assignment of err or: Plaintiff/Appellant [Patricia] Garlock, individually and in her fiduciary capacity, asserts that the trial court erred in findi ng that Appell[ee] Adeler was able to continue the business of the partnership after dissolution under Article XIII subsection (B) ,

2 Patricia filed a notice of appeal on August 6, 2020. Doc. 36. However, this Court dismissed this prior appeal for lack of a final appealable order in Case #5-20-26. On October 27, 2020, the trial court issued a Civ.R. 54(B) order that rendered its judgment entry of July 10, 2020 a final appealable order. Doc. 40. Patricia then filed notice of app eal on November 20, 2020 in Ca se #5-20-35. Doc. 46.Case No. 5-20-35

-7- and that the Buy Out provisions of subsections (C) and (D) are enforceable. Patricia argues that the language of the partnership agreement does not permit Adeler to continue the business or purchase Todd’s interest in the partnership. Legal Standard {¶11} A partnership is “an association of two or more persons to carr y on as co-owners a business for-profit * * *.” R.C. 1776.01(M). As a general matter, a “partnership agreement governs relations among the partners and between the partners and the partnership.” R.C. 1776.03(A). See R.C. 1776.01(N). “To the extent the partnership agreement does not otherwise provide, [O hio’s Uniform Partnership Act in R.C. 1776.01, et seq .] * * * governs relations among the partners and between the partners and the partnership.” R.C. 1776.03(A)

. See R.C. 1776.01,

et seq

. {¶12} “The construction of a written agreement is a matter of law for the

court.” LublinSussman Group LLP v. Lee , 2018-Ohio-666, 107 N.E.3d 724, ¶ 19 (6th Dist.). When confronted with an issue of contract interpretation, our role is to give effect to the intent of the parties. We will e xamine the contract as a whole and presume that the intent of the part ies is reflected in the language of the contract. In addition, we will look to the plain and ordinary meaning of the language used in the contract unless another meaning is clearly apparent from th e contents of the agreement. When the language of a written contract is clear, a court may look no further than the writing itself to find the intent of the parties. ‘As a matter of law, a contract is unambiguous if it can be given a definite legalCase No. 5-20-35

-8- meaning.’ Westfield Ins. Co. v. Galatis , 100 Ohio St.3d 216, 2003- Ohio-5849, 797 N.E.2d 1256, ¶ 11. Sunoco, Inc. (R & M) v. Toledo Edison Co ., 129 Ohio St.3d 397, 2011-Ohio-2720, 953 N.E.2d 285, ¶ 37. Legal Analysis {¶13} On appeal, Patricia argues that this business may continue purs uant to Article XIII(B) only if multiple partners remain after a dissol ution of the partnership. She points to the fact that Article XIII(B) uses plural language, stating that the “remaining partners shall have the right to elect to continue the business * * *.” (Emphasis added.) Doc. 28, Ex. A. Since only one partn er remained after Todd’s death, Patricia asserts that Adeler cannot continue the business under the terms of Article XIII(B). {¶14} Patricia’s argument revolves around the use of plural language— “partners,” “they,” and “themselves”—in Article XIII of the par tnership agreement. But in interpreting written agreements, Ohio courts have applie d the following rule: The singular and the plural forms [of terms] are often used in contracts interchangeably, and courts should construe the plura l and singular forms interchangeably so long as such a constructi on is consistent with the evident purposes of the contract. * * * That principle obtains with even greater force where, as here, the n oun number selected, plural or singular, is intended to cover hypothetical situations that have not yet arisen. (Brackets sic.) Grange Life Ins. Co. v. Bics , 9th Dist. Lorain No. 01CA007807, 2001 WL 1044081, *3 (Sept. 12, 2001), quoting Ohio Development Co. v. Ellis , 2dCase No. 5-20-35

-9- Dist. Montgomery No. CA 10340, 1987 WL 18831, *5 (Oct. 22, 1987 ), citing

Stetson Shoe Co. v. Proctor Hall Co ., 17 Ohio Law Abs. 278, 281 (7th Dist. 1934).

See also R.C. 1.43 (stating that, in matters of statutory construction, “[t]he singular includes the plural, and the plural includes the singular”). {¶15} In Ohio Development Co. v. Ellis , the Second District Court of Appeals applied this rule in a factually similar case. Ellis at *4. In Ellis , three partners operated the Ohio Development Company. Id . at *1. Two of the partners decided to withdraw from this partnership. Id . The third partner, Thomas Williams (“Williams”), then announced his intention to purchase the inte rests of the withdrawing partners. Paragraph 14 of the [Partnership] Agreement provide[d] that upon a partner’s withdrawal from the partnership, the remaining partners may either: (1) cause the partnership to buy out the withdrawing partner’s interest; or (2) terminate or liquidate t he partnership. Finally, paragraph 16 provide[d], in its entirety, as follows: ‘16. Purchase by Individual Partners’ ‘(a) If the Partnership declines to exercise any right which it may have under this Agreement to purchase the Partnership interest of any Partner, the other voting Partners may individually exercise such right of purchase on a pro rata basis, but only i f such Partnership interest is thereby purchased in its entirety.’ (Emphasis added.) Id . at *4. The trial court found that the wording of this partnership “agreement did not contemplate the factual situatio n of the parties, i.e.,Case No. 5-20-35

-10- a single partner attempting to purchase the interests of the ot her partners.” Id . *3. The trial court ordered a liquidation of the partnership’s asse ts. Id

. {¶16} However, Williams appealed the trial court’s decision, assertin g that the trial court’s decision was inconsistent with the partnershi p agreement. Ellis,

supra , at *4. On appeal, the Second District reversed the trial cou rt’s decision and held the following: In our view, paragraph 16 clearly evidences an underlying purpose to permit any partner or partners who wish to do so to continue the business upon the withdrawal of a partner, without having to liquidate. The defendants argue that the phrase ‘the other voting Partners’ appearing in 16(a) shows an intent to li mit the application of paragraph 16 to the situation where there ar e at least two partners left after the departure of the withdrawi ng partners, because of the use of the plural-‘Partners.’ We think this is reading too much into one word.

* * * The partnership agreement clearly evidences an intent to permit partners remaining after other partners have withdrawn to continue to operate the business, rather than forcing the remaining partners to liquidate. We can think of no particular business reason for the partners to have intended to distinguis h between the situation in which two or more partners remain and the situation in which only one partner remains to continue the business. Accordingly, we will not assume that the partners intended to make that distinction, in the absence of language i n the partnership agreement clearly evidencing that intent.

Id . *4-5. The Second District also found that “[t]he fact that t he business cannot be continued in partnership form * * * does not require liquidatio n.” Id . at *5. We find the reasoning of the Second District in Ellis to be persuasive.Case No. 5-20-35

-11- {¶17} Turning to the facts of the case before this Court, Article XII I(B) expressly provides for a right to continue the business after a dissolution. Doc. 28, Ex. A. This provision manifests a clear intention to allow the business of the partnership to continue after a dissolution. Doc. 28, Ex. A. But Patricia’s interpretation of Article XIII(B) would limit this right, allow ing partners to continue the business but requiring a partne r to liquidate the business. Other than pointing to the plural language in this provision, she offers no other r eason for this distinction. {¶18} However, the context and wording of this provision give no indi cation that use of the word “partners” instead of “partner” was intend ed to impose a limitation on the right of a partner to continue the business. Further, no provision in the partnership agreement suggests that the application of t he general rule on the interchangeability of singular and plural terms in a contract w ould be inconsistent with the purposes of this partnership agreement. Ellis, supra , at *5 (holding that “courts should construe the plural and singular forms interchan geably so long as such a construction is consistent with the purposes of the cont ract”); Bics , supra , at

*3. {¶19} If the parties to this agreement wanted to require a liquidatio n of the business in the event that only one partner remained at dissolu tion, they could have expressly included such a requirement in the partnership agreem ent. In the absence of some other evidence in the partnership agreement evidencing such a purpose, we will not assume that the original parties intended for the busi ness to be liquidated inCase No. 5-20-35

-12- this situation because Article XIII(B) uses the word “partners” instead of “partner.” Doc. 28, Ex. A. Thus, we conclude that the plural language use d in Article XIII(B) does not preclude Adeler from continuing the business. {¶20} Patricia further argues that the buyout provisions in Article X III(C) and (D) of the partnership agreement are inapplicable because t he plural language in Article XIII(B) precludes a continuation of the business. I n her brief, Particia admits that Adeler can buyout Todd’s interest in the partnershi p pursuant to the provisions in Article XIII(C) and (D) if Article XIII(B) is fou nd to be applicable in this case. Appellant’s Brief, 10. Since we have determined th at the plural language in Article XIII(B) does not preclude Adeler from continuing the business, Patricia’s legal challenge to the applicability of the provisions in Artic le XIII(C) and (D) in this appeal also fails. {¶21} For the reasons stated in our analysis, we conclude that Adeler has the right to continue the business pursuant to Article XIII(B) of t he partnership agreement. Further, the buyout provisions in Article XIII(C) a nd (D) are enforceable. Thus, the trial court did not err in denying Patr icia’s motion for summary judgment or in granting Adeler’s partial motion for sum mary judgment. As such, Patricia’s sole assignment of error is overruled.Case No. 5-20-35

-13- Conclusion {¶22} Having found no error prejudicial to the appellant in the parti culars assigned and argued, the judgment of the Hancock County Court o f Common Pleas

is affirmed. Judgment Affirmed ZIMMERMAN and SHAW, J.J., concur.

/hls