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State3/14/2005
er of law to be resolved by the court. Questions of law are reviewed by appellate courts de novo. Dehlendorf & Co. v. Jefferson Twp., 10th Dist. No. 02AP-334, 2003-Ohio-1641, at 18; citing Lovewell v. Physicians Ins. Co. of Ohio (1997), 79 Ohio St.3d 143, 144. For the reasons that follow, we find appellants' assignment of error not well taken.
{ } Despite appellants' assertion that Swaim's acceptance of appellants' offer could not have, as a matter of law, contained any variance from the terms of acceptance provided by the written offer, this court has previously held that a non-material variance in acceptance may constitute valid acceptance of an offer.
{ } In the case sub judice, the trial court was presented with the following evidence: (a) Swaim, by way of a telephone conversation with Bailey on June 25, 2001, received verbal authorization from Bailey for Swaim to sign the entry of dismissal on behalf of Bailey; (b) on June 25, 2001, Swaim had his secretary, Deborah McCauley, mail a copy of the entry of dismissal to Bailey and a letter to DaPore confirming the BWC's acceptance of the settlement offer; (c) testimony from McCauley that she, in fact, mailed said letters to Bailey and DaPore on June 25, 2001; and finally, (d) on June 28, 2001, prior to receiving Dapore's letter containing the notice of revocation, Swaim filed the signed entry of dismissal in the Common Pleas Court of Allen County, mailed a copy of the file stamped entry of dismissal to DaPore, and attempted to present the settlement check for deposit.
{ } Upon the evidence and the record contained herein, we find that Swaim's variance in acceptance was immaterial to the formation of the contract as contemplated by appellants. Had Swaim forwarded the original entry of dismissal, as opposed to a copy, to Bailey on June 25, 2001, appellants would not have any legal theory upon which to assert that Swaim had not accepted appellants' settlement offer. The fact that Swaim received verbal authorization to sign the entry for, and in place of, Bailey further minimizes the materiality of Swaim's minor variance. Additionally, Swaim mailed a letter of acceptance to DaPore on June 25, 2001, three days prior to DaPore's attempt to revoke the settlement offer.
{ } Based upon the preceding, we find that, as applied to the facts of the case herein, the variance in Swaim's acceptance was not material to the formation of the contract contemplated by appellants. We, therefore, cannot find that the trial court erred in holding that an enforceable contract had been formed between appellants and the BWC on June 25, 2001. Accordingly, Plumb's sole assignment of error is overruled.
{ } Having found no error prejudicial to appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
SHAW and BRYANT, J.J., concur.
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