{¶ 8} I respectfully dissent. While I acknowledge the rule set forth in State ex rel. Freeman v.Morris (1991), 62 Ohio St.3d 107, 579 N.E.2d 702, the bank did not raise this issue in response to Hortpro's motion to dismiss or on appeal, and I would not make the argument or consider its merit sua sponte. I would address the merits of the bank's appeal and upon review of the merits, I would affirm. *Page 351