It is time to thank our high school English teachers. They were right when they said, “watch your language,” and that grammar counts in the “real world.”
In the real world of real estate leases, easements and other commercial agreements, this principle is well illustrated in case after case where language interpretation is at issue.
Judicial Deference to Commercial Language
As a general rule, courts will uphold language in commercial agreements, unless it is contrary to statutory law or public policy. Because of this judicial deference to “commercial language,” I caution attorneys and legislators to say what you mean, precisely, or a judge will decide what you meant.
Impact of Grammatical Precision
My caution is based upon the fact that courts typically refuse to consider extrinsic evidence of a party’s intent if they determine that contract/statutory language is clear and unambiguous. What is said within the “four corners of the agreement or statute” is simply deemed by jurists to be the best evidence of intent. Even the failure to follow seemingly trivial grammar rules like comma placement and the use of i.e. vs. e.g. can result (and has resulted) in unintended consequences.
For example, in a 1995 landlord/tenant case out of Connecticut, the tenant intended for the landlord to make all of the “structural repairs,” including the roof. The lease, which failed to define “structural repairs,” contained the following language: “Landlord is responsible for structural repairs only, i.e., foundation, exterior walls and storefront, provided tenant keeps up the maintenance.” The court in this case held that the landlord was not responsible to make roof repairs because “roof” was not included in the list of items provided in the lease.
The Connecticut court explained that “i.e.” means “that is” and “e.g.” means “for example.” Consequently, the use of “i.e.” served to limit landlord’s structural responsibility to only those items listed in the lease vs. merely providing examples of the kinds of structural repairs that the landlord would be responsible for. The court determined that the language of the lease was clear and unambiguous, and therefore, it would not consider evidence of the parties’ intent.
Corder v. Ohio Edison Company
Closer to home, the Ohio Supreme Court in Corder v. Ohio Edison Company will soon resolve a long-standing dispute “regarding six words and a comma.” At issue is what the phrase “right to trim, cut and remove” means in a 1948 Ohio Edison Easement.
In Corder, Ohio Edison Company believes its easement permits it to prevent plants and other obstructions on a person’s property from interfering with overhead power lines by trimming/cutting, or otherwise removing such plants/obstructions by herbicides or other removal methods.
The plaintiff in this case (the Corder family), which owns approximately 12 acres of farmland in Harrison County subject to the Easement, argues that the common, 1948 Webster’s Dictionary definition of “remove” and the lack of a comma in the phrase “cut and remove” means that Ohio Edison can’t spray chemicals to remove plant obstructions, but can only use tools to cut/trim plants and then remove (“take away”) what was cut/trimmed from the property.
Ohio Edison also found definitions of “remove” in the 1948 Dictionary to argue its case, namely, “to eradicate” and “to eliminate.” Ohio Edison further argued that the lack of commas in such easements from the time period in question is common, and that the plaintiff’s narrow interpretation could impact thousands of miles of power lines and potentially raise the costs of maintaining such power lines.
In 2021, the trial court in Corder agreed with the plaintiff and determined that the easement language did not specifically authorize using herbicide. Ohio Edison appealed that decision to the Seventh District Court of Appeals of Ohio, which affirmed the trial court’s decision. Ohio Edison then appealed that decision to the Ohio Supreme Court, which heard the case last month. The parties to this case, legal practitioners and English teachers are all anxiously awaiting the Court’s decision.
Saying what you mean, precisely, is as important in drafting statutes and ordinances as it is in commercial agreements. As a general rule, courts will also uphold clear and unambiguous statutory language. The Supreme Court of Ohio has held that:
“Statutes clear in their terms need no interpretation; they simply need application. If the inquiry into language of a statute reveals that the statute conveys a meaning which is clear, unequivocal and definite, at that point the interpretative effort is at an end, and the statute must be applied accordingly.”
W. Jefferson v. Cammelleri
In 2015, the Village of West Jefferson, Ohio recently discovered these axioms (“what is written = what is intended” and “grammar counts”) the hard way, in W. Jefferson v. Cammelleri, a 12th District Ohio Court of Appeals case that was also decided on the basis of the lack of a comma.
In Cammelleri, Defendant-appellant Andrea Cammelleri’s pickup truck was towed from a parking space in front of her house and impounded. Cammelleri was cited for violating West Jefferson Codified Ordinance Section 351.16(a), which stated:
“It shall be unlawful for any person … to park …upon any street … in the Village, any motor vehicle camper, trailer, farm implement and/or non-motorized vehicle for a continued period of twenty-four hours …”
At trial, Ms. Cammelleri argued that the ordinance did not apply to her because the language prohibits a “motor vehicle camper” from being parked on the street, and her truck is not a “motor vehicle camper.” The Village contended that the actual wording of the ordinance did apply, notwithstanding that a comma was inadvertently omitted between the phrase “motor vehicle” and the word “camper.” The trial court agreed with the Village, concluding that:
“anybody reading [the ordinance] would understand that it is just missing a comma.”
Ms. Cammelleri appealed the decision to the 12th District Court of Appeals who agreed that when called on to interpret statutes and ordinances, “the paramount concern is determining legislative intent in enacting the statute.”
However, the Court of Appeals overruled the trial court, emphasizing that the basic rules for statutory interpretation should apply.
As elaborated on by the court:
“According to ordinary grammar rules, items in a series are normally separated by comma. However, no such comma exists. If the village desires a different reading, it should amend the ordinance and insert a comma between the phrase “motor vehicle” and the word “camper.” As written, however, legislative intent is clear from looking at the language used in the ordinance itself.”
O’Connor v. Oakhurst Dairy
While the Cammelleri case dealt with a mere parking ticket, in 2018, the US Court of Appeals for the First Circuit in O’Connor v. Oakhurst Dairy decided to keep alive an Oakhurst Dairy drivers’ lawsuit seeking more than $10 million in overtime. Circuit Judge David Barron wrote : “For want of a comma, we have this case.”
What is the moral of this story? Whether you are drafting commercial agreements, or statutory law, dot your i’s, cross your t’s, and do not forget your commas. Grammar counts!