[Cite as Huffman v. Groff, 2013-Ohio-222.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
Ray Huffman, et al, : : Plaintiffs-Appellants/ : Case No. 10CA54 Cross-Appellees, : : DECISION AND v. : JUDGMENT ENTRY : Roxanne Groff, et al , : : Defendants-Appellees/ : Filed: January 23, 2013 Cross-Appellants. ______________________________________________________________________
APPEARANCES:
John P. Lavelle and Robert R. Rittenhouse, Lavelle and Associates, Athens, Ohio, for Appellants/Cross-Appellees.
Robert J. Shostak, Shostak & Hollingsworth, Athens, Ohio, for Appellee/Cross-Appellant Roxanne Groff.
Michael M. Hollingsworth, Shostak & Hollingsworth, Athens, Ohio, for Appellees/Cross- Appellants Stephen W. Groff and Aileen McCormack. ______________________________________________________________________
Kline, J.:
{¶1} Ray Huffman (hereinafter “Ray”) appeals the judgment of the Athens
County Court of Common Pleas. Ray appeals both individually and derivatively on
behalf of the Hollar Inc. (hereinafter the “Hollar”). The trial court granted summary
judgment in favor of Roxanne Groff (hereinafter “Roxanne”), Stephen Groff (hereinafter
“Stephen”), and Aileen McCormack (hereinafter “Aileen”). (Hereinafter, we will refer to
Roxanne, Stephen, and Aileen collectively as the “Defendants.”) Ray contends that the
trial court erred by granting summary judgment on all the individual and derivative Athens App. No. 10CA54 2
claims in his complaint. Because there are no genuine issues of material fact regarding
any of the claims in Ray’s complaint, we disagree.
{¶2} Additionally, the Defendants cross-appeal the judgment of the Athens
County Court of Common Pleas. Most of the Defendants’ assignments of error are not
proper in the context of a cross-appeal. Therefore, we will not address the Defendants’
improperly raised assignments. And because summary judgment was appropriate on
all of the claims in the complaint, the properly raised issues in Defendants’ cross-appeal
are moot.
{¶3} Accordingly, we affirm the judgment of the trial court.
I.
{¶4} This case involves a dispute among shareholders of the Hollar regarding
the May 2007 sale of Aileen’s stock in the corporation. Prior to the sale, the
shareholders were Ray, Roxanne, and Aileen. Ray and Roxanne each owned a 37.5%
interest in the Hollar, and Aileen owned a 25% interest. (Aileen owned 1.5 shares of
Hollar stock, and Roxanne and Ray each owned 2.25 shares.) Roxanne served as
president of the Hollar, and Ray served as the Secretary-Treasurer.
{¶5} The Hollar was incorporated in 1973. The corporation’s only asset is
approximately 80 acres of real property in Athens County that apparently has
sentimental value to the shareholders. The Hollar does not generate a profit. It does,
however, pay property taxes. Typically, when the Hollar’s taxes are due, Roxanne
notifies the shareholders, and the shareholders pay their respective share of the tax
liability. Athens App. No. 10CA54 3
{¶6} Shortly after incorporating, the original shareholders of the Hollar executed
a shareholders’ agreement (hereinafter the “Agreement”). Aileen was not an original
shareholder, and she did not sign the Agreement.
{¶7} Under the terms of the Agreement, the shareholders agreed to provide the
Hollar with a right of first refusal should a shareholder seek to sell his or her Hollar
stock. Specifically, the Agreement states, in relevant part, as follows:
We, the undersigned shareholders in The Hollar, Inc.,
do hereby, in consideration of the mutual promises
herein, and for ourselves, assigns, heirs, executors
and administrators agree as follows:
1. That in the event each or any of us desires to sell
his share in The Hollar, Inc., he shall notify the
corporation of his intent to sell and the price which he
desires for said share. Within 30 days of said
notification, the corporation shall have the right to
purchase said share at that price.
2. That in the event each of any of us receives a bona
fide offer to buy his share at any price, he shall notify
the corporation, and the corporation shall have the
right to purchase the said share at that price within 30
days of notification. In the event that the corporation
does not purchase at that price, within 30 days, each Athens App. No. 10CA54 4
or any of us may sell said share to the bona fide
offeree. Agreement at 1.
{¶8} In early 2007, Aileen expressed a desire to sell her interest in the Hollar.
Ray and Roxanne then met to discuss of the possibility of purchasing Aileen’s Hollar
stock. Ray testified that he informed Roxanne that he valued Aileen’s stock at $6,000 to
$12,000. Ray and Roxanne agreed, however, to make a below-value offer to Aileen for
her stock. Following the meeting, Roxanne contacted Aileen. Aileen testified at
deposition that “Roxanne said that Ray had offered $5,000, and I said, well, no I’m not
interested.” Aileen Dep. Tr. at 16.
{¶9} Shortly thereafter, Roxanne informed Aileen that Roxanne’s brother,
Stephen, was willing to purchase Aileen’s Hollar stock. Eventually, Stephen formally
offered to purchase Aileen’s stock for $10,000. At that point, Aileen attempted to
provide the Hollar with the 30-day time period to exercise its right of first refusal. During
this time, Ray cancelled two shareholders’ meetings that were scheduled to vote on
Aileen’s proposed stock sale. Additionally, Ray did not call any shareholders’ meetings,
though he could have done so. Ray also contacted Aileen on multiple occasions to
convince her to sell her stock to either the Hollar or to Ray individually.
{¶10} In late March or early April 2007, Stephen offered $10,250 for Aileen’s
stock.1 The apparent purpose of this offer was to start a new 30-day time period for the
Hollar to exercise its right of first refusal. Aileen’s sale to Stephen closed on May 1,
2007. According to Ray, the Hollar did not have a full 30 days to vote on the $10,250
offer.
1 Aileen testified at deposition that she sold her stock to Stephen for $10,200. Apparently, the discrepancy is the result of differing memories of the final sale price. Athens App. No. 10CA54 5
{¶11} Following the sale of Aileen’s stock to Stephen, Ray filed suit individually
and derivatively on behalf of the Hollar against Roxanne, Aileen, and Stephen. The
complaint alleges claims for breach of the Agreement, breach of fiduciary duty, unjust
enrichment, tortious interference with business relationships, and civil conspiracy. On
November 3, 2010, the trial court granted the Defendants’ motion for summary
judgment based on a finding that the Hollar’s right of first refusal was unenforceable.
Then, on November 10, 2010, the trial court entered its final judgment dismissing all of
the claims in Ray’s complaint.
{¶12} Ray appeals and asserts the following assignments of error: I. “The Trial
Court erred as a matter of law when it granted the Defendants’ Motion for Summary
Judgment on all of the Plaintiffs’ claims because there were contested genuine issues of
material fact on all eight causes of action.” II. “The Trial Court erred as a matter of law
when it granted summary judgment on the issue of the enforceability of the restrictive
shareholders’ agreement, as the parties had actual knowledge of the agreement and it
was enforceable pursuant to Ohio Revised Code Section 1308.11.” And III. “The Trial
Court erred as a matter of law when it dismissed the Plaintiffs’ claim for breach of
contract when it failed to consider whether Roxanne Groff had breached the Hollar
Agreement.”
{¶13} The Defendants cross-appeal and assert twelve assignments of error: I.
“Defendants’ First Motion for Judicial Notice, Second Motion for Judicial Notice and
Third Motion for Judicial Notice Support Defendants/Appellees/Cross-Appellants’
Equitable Defenses and Should Have Been Granted by the Trial Court.” II. “Hollar, at
All Times ‘Insolvent’ as Defined in R.C. § 1701.01(O), Was Restricted by R.C. § Athens App. No. 10CA54 6
1701.35(B) from Redeeming Its Common Stock.” III. “Based upon the Equitable
Doctrine of Unclean Hands (Lack of Standing), the Second Motion for Summary
Judgment of Defendants/Appellants [sic]/Cross-Appellants Should Have Been Granted
with Respect to Causes of Action One through Seven of the Complaint.” IV. “All Claims
in the Complaint Are Barred by the Equitable Doctrine of Estoppel.” V. “Causes of
Action One through Seven of Plaintiffs/Appellants/Cross-Appellees’ Complaint Are
Barred by the Equitable Doctrine of Laches.” VI. “The Shareholders Agreement Was
Unenforceable Because It Lacked Contractual Mutuality of Obligation.” VII. “The
Shareholders Agreement Was Unenforceable Because It Was Impossible for Hollar to
Meet Its Performance Obligations Pursuant to the Agreement.” VIII. “The Beliefs of the
Parties, Who Mistakenly Thought the Shareholders Agreement Was Binding, Do Not
Create a Material and Genuine Issue of Fact or Otherwise Change the Law with
Respect to the Enforceability of the Shareholders Agreement.” IX. “The Shareholders
Agreement Was Not Breached, And Its Terms Were Not Binding Upon
Defendants/Cross-Appellants.” X. “Defendant/Appellee/Cross-Appellant Roxanne Groff
Did Not Breach A Fiduciary Duty or Abuse Control As a Holler [sic] Stockholder Or
Officer, And She Was Not Unjustly Enriched.” XI. “There Was No Illegal Conspiracy.”
And XII. “Defendants/Cross-Appellees [sic] Did Not Intentionally Interfere With
Plaintiff/Cross-Appellee Huffman’s Alleged Business Relationships.”
II.
{¶14} Initially, we note that the Defendants’ second through twelfth assignments
of error are not properly raised in a cross-appeal. Under App.R. 3(C)(1), “A person who
intends to defend a judgment or order against an appeal taken by an appellant and who Athens App. No. 10CA54 7
also seeks to change the judgment or order or, in the event the judgment or order may
be reversed or modified, an interlocutory ruling merged into the judgment or order, shall
file a notice of cross appeal[.]” (Emphasis added.) Defendants’ second through twelfth
assignments of error do not seek to change the judgment of the trial court. Instead, the
Defendants assert alternative reasons why summary judgment was proper. But “a
cross-appeal is not the proper format to defend a grant of summary judgment [because
a] party to a civil lawsuit has no standing to cross-appeal a final judgment in its favor.”
Hellman v. Motorists Mut. Ins. Co., 153 Ohio App.3d 405, 2003-Ohio-2671, 794 N.E.2d
688, ¶ 24 (3d Dist.).
{¶15} Accordingly, we will not address the Defendants’ improper assignments of
error. Additionally, Defendants’ first assignment of error is properly raised as a cross-
appeal. We will address the Defendants’ first assignment of error following our
resolution of Ray’s assignments of error.
III.
{¶16} We next address Ray’s assignments of error. “Because this case was
decided upon summary judgment, we review this matter de novo, governed by the
standard set forth in Civ.R. 56.” Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,
833 N.E.2d 712, ¶ 8. Summary judgment is appropriate only when the following have
been established: (1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that reasonable minds
can come to only one conclusion, and that conclusion is adverse to the nonmoving
party. Civ.R. 56(C). Accord Bostic v. Connor, 37 Ohio St.3d 144, 146, 524 N.E.2d 881
(1988); Grimes v. Grimes, 4th Dist. No. 08CA35, 2009-Ohio-3126, ¶ 14. In ruling on a Athens App. No. 10CA54 8
motion for summary judgment, the court must construe the record and all inferences
therefrom in the opposing party’s favor. Doe v. First United Methodist Church, 68 Ohio
St.3d 531, 535, 629 N.E.2d 402 (1994).
{¶17} The burden of showing that no genuine issue of material fact exists falls
upon the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280,
294, 662 N.E.2d 264 (1996). However, once the movant supports his or her motion with
appropriate evidentiary materials, the nonmoving party “may not rest upon the mere
allegations or denials of the party’s pleadings, but the party’s response, by affidavit or
as otherwise provided in [Civ.R. 56], must set forth specific facts showing that there is a
genuine issue for trial.” Civ.R. 56(E). Accord Grimes at ¶ 15.
{¶18} “In reviewing whether an entry of summary judgment is appropriate, an
appellate court must independently review the record and the inferences that can be
drawn from it to determine if the opposing party can possibly prevail.” Grimes at ¶ 16.
“Accordingly, we afford no deference to the trial court’s decision in answering that legal
question.” Morehead v. Conley, 75 Ohio App.3d 409, 412, 599 N.E.2d 786 (4th
Dist.1991). Accord Grimes at ¶ 16.
A.
{¶19} We will address Ray’s second assignment of error out of order. In his
second assignment of error, Ray claims that Aileen breached the Agreement by failing
to provide the Hollar with a right of first refusal to purchase her stock.
{¶20} Essentially, the Agreement provides that a shareholder who wants to sell
his or her shares in the Hollar has to provide the Hollar with a 30-day period in which to
exercise a right of first refusal. Aileen attempted to follow the Agreement and afford the Athens App. No. 10CA54 9
Hollar the opportunity to exercise the right of first refusal. Ray, however, argues that
her efforts fell short. As a result, Ray contends that Aileen breached the Agreement.
{¶21} Ray’s arguments fail for two reasons. First, the Agreement was not
effective against Aileen. Second, even if the Agreement was effective against Aileen,
the record shows that Aileen complied with the Agreement.
{¶22} Aileen was not an original shareholder in the Hollar, and she did not sign
the Agreement. Nevertheless, Ray contends that Aileen had actual knowledge of the
Agreement before she sold her stock to Stephen. Therefore, according to Ray, the
Agreement was enforceable against Aileen. Ray relies on R.C. 1308.11(A), which
provides as follows:
A restriction on transfer of a security imposed by the
issuer, even if otherwise lawful, is ineffective against a
person without actual knowledge of it unless: (1) The
security is certificated and the restriction is noted
conspicuously on the security certificate; or (2) The
security is uncertificated and the registered owner has
been notified of the restriction.
Ray claims that, under R.C. 1308.11(A), Aileen’s actual knowledge of the Agreement
obligates her to honor the right of first refusal.
{¶23} R.C. 1308.11(A) does not apply to the right of first refusal in the
Agreement. This is so because R.C. 1308.11(A) applies only to restrictions “imposed
by the issuer[.]” And the right of first refusal in the Agreement is not a restriction
imposed by the issuer. See R.C. 1308.08 (defining “issuer”). The Agreement is nothing Athens App. No. 10CA54 10
more than a contract to which Aileen was not a party. And “[i]t is axiomatic that those
not a party to a contract cannot be held liable for a breach of contract.” Ingle-Barr, Inc.
v. Eastern Local School Dist. Bd., 4th Dist. Nos. 10CA808 & 10CA809, 2011-Ohio-584,
¶ 9. Moreover, the comments to R.C. 1308.11 make clear that the statute does not
apply in this scenario. Specifically, the comments state as follows: “This section deals
only with restrictions imposed by the issuer. Restrictions imposed by statute are not
affected. * * * Nor does it deal with private agreements between stockholders containing
restrictive covenants as to the sale of the security.” (Emphasis added.) 1994 Official
Comment 5 to UCC 8-204.
{¶24} Thus, Ray cannot show that the Hollar’s right of first refusal is effective
against Aileen, and the Hollar cannot prevail on a breach of contract claim against
Aileen.
{¶25} Furthermore, even assuming the Agreement was effective against Aileen,
the record shows that Aileen provided the Hollar with 30 days to exercise its right of first
refusal. By March 19, 2007, all of the Hollar’s shareholders were notified of Stephen’s
$10,000 offer to purchase Aileen’s stock. At that point, the Hollar had 30 days (i.e., until
April 18, 2007) to exercise its right of first refusal on Stephen’s $10,000 offer. The sale
occurred on May 1, 2007. Thus, Aileen afforded the Hollar more than 30-days to
exercise its right of first refusal.
{¶26} Additionally, Stephen’s $10,250 offer did not create a new 30 day time
period for the Hollar to exercise its right of first refusal. The Agreement provides that
“[i]n the event that the corporation does not purchase at that price, within 30 days” then
the shareholder could sell his or her stock. (Emphasis added.) Agreement at 1. The Athens App. No. 10CA54 11
phrase “at that price” refers to Stephen’s $10,000 offer. Because the Hollar did not
exercise its right of first refusal on Stephen’s $10,000 offer by April 18, 2007, Aileen was
free to sell her stock to Stephen.
{¶27} For all of the reasons stated above, Aileen did not breach the Agreement
when she sold her stock to Stephen. Also, to the extent that Ray implies that Stephen
is somehow liable for breaching the Agreement, Ray has failed to show how Stephen,
the purchaser, would be bound by the Agreement.
{¶28} As a result, there is no genuine issue as to any material fact regarding
Aileen and Stephen’s alleged breach of the Agreement, and the Defendants are entitled
to judgment as a matter of law on the Hollar’s breach of contract claim.
{¶29} Accordingly, we overrule Ray’s second assignment of error.
B.
{¶30} Next, we address Ray’s third assignment of error. In his third assignment
of error, Ray contends that the trial court erred because it failed to consider whether
Roxanne had breached the Agreement.
{¶31} The Agreement restricts a seller’s ability to sell his or her stock. Here, the
seller was Aileen, not Roxanne. Ray has not articulated a viable theory as to how
Roxanne, who was not selling her stock, could have been in breach of the Agreement.
{¶32} Accordingly, we overrule Ray’s third assignment of error.
C.
{¶33} In his first assignment of error, Ray contends that the trial court erred by
dismissing all of the claims in his complaint. Ray argues that there are genuine issues
of material fact on all eight claims. We disagree. Athens App. No. 10CA54 12
1. Breach of Contract Claims
{¶34} The first, second, and third claims in Ray’s complaint are essentially
variations of the Hollar’s breach-of-contract-claim based on the Agreement. As detailed
above, however, the evidence does not support a breach-of-contract claim.
Consequently, the trial court did not err by dismissing the breach of contract claims in
the complaint.
2. Unjust Enrichment Claim
{¶35} We next address the sixth claim. In the sixth claim, Ray asserts an unjust
enrichment claim on behalf of the Hollar.
{¶36} Ray alleged that “[b]y the wrongful acts and omissions of [Roxanne], the
Groff family [i.e., Roxanne and Stephen] has been unjustly enriched at the expense and
to the detriment of [the Hollar].” Complaint at ¶ 95. “In order to prevail on an unjust
enrichment theory, the plaintiff must establish three elements: ‘(1) he conferred a benefit
on the defendant; (2) the defendant knew of the benefit; and (3) the defendant retained
the benefit under circumstances where it would be unjust for him to retain that benefit
without payment.’” Cooper v. Smith, 155 Ohio App.3d 218, 800 N.E.2d 372, 2003-Ohio-
6083, ¶ 30 (4th Dist.), quoting Pine v. Price, 7th Dist. No. 01-CO-46, 2002-Ohio-5223, ¶
19.
{¶37} Presumably, Ray’s theory is that the Hollar conferred a benefit on the
Defendants by not exercising its right of first refusal. However, as shown above, the
Hollar did not actually have a right of first refusal with respect to Aileen’s stock sale.
Alternatively, the Hollar had the opportunity to exercise its right of first refusal, but it
simply failed to exercise that right. Therefore, there is no evidence in the record that the Athens App. No. 10CA54 13
Hollar conferred a benefit on anyone sufficient to prevail on an unjust enrichment claim.
Consequently, the trial court did not err in dismissing the unjust enrichment claim.
3. Claims For Breach of Fiduciary Duty and
Tortious Interference with a Business Relationship
{¶38} The fourth and fifth claims in the complaint are breach-of-fiduciary-duty
claims. The eighth claim is a tortious-interference-with-business-relationships claim.
We will consider the breach-of-fiduciary-duty claims and tortious-interference-with-
business-relationship claim together.
{¶39} Ray claims that Roxanne persuaded him that they should make a below-
value offer to Aileen for her stock. According to Ray, Roxanne then misrepresented to
Aileen that the $5,000 offer was Ray’s idea alone. And by doing so, Ray contends that
Roxanne “poisoned the well” and, consequently, that Roxanne’s actions prevented the
Hollar or Ray from purchasing Aileen’s Hollar stock. Appellant’s Merit Brief at 14.
{¶40} Ray argues that Roxanne’s conduct constitutes a breach of her fiduciary
duties to Ray and the Hollar. Additionally, Ray claims that Roxanne tortiously interfered
with his and the Hollar’s business relationships.
{¶41} A plaintiff must prove damages to recover under a breach-of-fiduciary-duty
claim or a tortious-interference-with-business-relationships claim. To prevail on a
breach of fiduciary duty claim, “a party must show the existence of a fiduciary
relationship, failure to comply with a duty accorded that relationship, and damages
proximately caused by that failure.” Morgan v. Ramby, 12th Dist. Nos. CA2010-10-095
& CA2010-10-101, 2012-Ohio-763, ¶ 25; Keybank Natl. Assoc. v. Guarnieri & Secrest,
P.L.L., 7th Dist. No. 07 CO 46, 2008-Ohio-6362, ¶ 33. Additionally, “[t]he elements of Athens App. No. 10CA54 14
tortious interference with a business relationship are: (1) the existence of a prospective
business relationship; (2) the wrongdoer’s knowledge thereof; (3) an intentional
interference causing a breach or termination of the relationship; and (4) damages
resulting therefrom.” Morrison v. Renner, 5th Dist. CT2011-0010, 2011-Ohio-6780, ¶
21.
{¶42} “The general rule for the recovery of compensatory damages is that injury
and the resulting damage must be shown with certainty and not be left to conjecture and
speculation.” Pietz v. Toledo Trust Co., 63 Ohio App.3d 17, 22, 577 N.E.2d 1118 (6th
Dist.1989). “It is uncertainty as to the existence of damages, not uncertainty as to the
amount, which precludes recovery.” (Emphasis sic.) Id. “Thus, to survive a motion for
summary judgment, [Ray or the Hollar] must present some evidence as to their actual
damages.” Peltier v. McCartan, 3d Dist. No. 17-05-14, 2005-Ohio-3901, ¶ 10.
{¶43} Here, there is no evidence in the record that Ray or the Hollar have
suffered, or will suffer, any damages as a result of Roxanne’s alleged misconduct. The
Hollar does not generate a profit or pay dividends. Moreover, the Hollar incurs regular
expenses in the form of property taxes. Simply put, given the evidence in the record,
Ray’s or the Hollar’s damages are based on conjecture or speculation. Thus, there is
no evidence of the existence of any actual damages based on Roxanne’s alleged
misconduct. Consequently, Ray cannot demonstrate a genuine issue of material fact as
to the breach-of-fiduciary-duty or tortious-interference-with-business-relationships
claims.
{¶44} Accordingly, the trial court properly dismissed the claims for breach of
fiduciary duty and tortious interference with business relationships. Athens App. No. 10CA54 15
4. Civil Conspiracy Claims
{¶45} Ray also asserts a civil conspiracy claim against Roxanne, Aileen, and
Stephen. “The elements of civil conspiracy in Ohio are (1) a malicious combination; (2)
two or more persons; (3) injury to person or property; and (4) existence of an unlawful
act independent from the actual conspiracy.” Boston v. Lambert, 4th Dist. Nos. 93CA40
& 93CA44, 1994 WL 681060, *6 (Nov. 30, 1994); accord Pheils v. Palmer, 6th Dist.
Nos. L-98-1053 & L-08-1333, 2009-Ohio-6342, ¶ 45; see also Williams v. Aetna Fin.
Co., 83 Ohio St.3d 464, 475, 700 N.E.2d 859 (1998). “An underlying tort is necessary
to give rise to a cause of action for conspiracy.” Cook v. Kudlacz, 2012-Ohio-2999, 974
N.E.2d 706, ¶ 90 (7th Dist.), quoting Ohio Assn. of Pub. School Emps./AFSCME Local
4, AFL-CIO v. Madison Local School Dist. Bd. of Edn., 190 Ohio App.3d 254, 2010-
Ohio-4942, 941 N.E.2d 834, ¶ 62 (11th Dist.).
{¶46} Here, as shown above, summary judgment was proper on all the other
claims in the complaint. Thus, “[t]here is no remaining viable underlying tort[.]” Cook at
¶ 91. And “summary judgment was appropriately granted on the civil conspiracy claim.”
Id. As a result, the trial court properly dismissed Ray’s civil-conspiracy claim.
5.
{¶47} In conclusion, there is no genuine issue as to any material fact regarding
any of the claims in Ray’s complaint. The Defendants are entitled to judgment as a
matter of law on all of the claims. And reasonable minds can come to only one
conclusion, and that conclusion is adverse to Ray and the Hollar. Accordingly, we
overrule Ray’s first assignment of error.
IV. Athens App. No. 10CA54 16
{¶48} As stated above, the Defendants filed a cross-appeal. Although they
asserted twelve assignments of error, only the first assignment of error was properly
raised in a cross-appeal. In their first assignment of error, the Defendants contend that
the trial court erred by failing to grant their three motions for judicial notice. However,
we have determined that summary judgment was proper on all of the claims in Ray’s
complaint. As a result, the Defendants’ first assignment of error is moot, and we decline
to address it. See App.R. 12(A)(1)(c).
V.
{¶49} In conclusion, we overrule all of Ray’s assignments of error, and the
properly raised assignment of error in Defendants’ cross-appeal is moot. Thus, we
affirm the judgment of the trial court.
JUDGMENT AFFIRMED. Athens App. No. 10CA54 17
JUDGMENT ENTRY
It is ordered that the JUDGMENT AFFIRMED. Appellants shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Court of Common Pleas 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. Exceptions.
McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion.
For the Court
BY:_____________________________ Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.