Huffman v. Groff

[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.