Marshall v. Enviromatrix, Inc., Unpublished Decision (10-28-2004) , 2004 Ohio 5739 ( 2004 )


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  • ACCELERATED DOCKET
    JOURNAL ENTRY and OPINION
    This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records and briefs of counsel.

    Appellant's first assignment of error is sustained. Although we agree with the trial court that "the debt owed to plaintiff is subordinate to the debt owed to the Dattilos," questions remain as to the veracity of appellee's claims of additional indebtedness. Appellee's argument that "no money was due to appellant under the note until all indebtedness to other individuals was completely liquidated," is inconsistent with its practice of initially paying appellant. Appellee has failed to show that the indebtedness owed to appellant should not be recognized.1

    Having reviewed the record, we find that neither party has submitted sufficient evidence such that reasonable minds could reach but one conclusion. The trial court erred by granting summary judgment.

    Appellant's second assignment of error is overruled as moot.

    Judrgment reversed and remanded.

    This cause is reversed and remanded to the lower court for resentencing and for further proceedings consistent with this opinion.

    It is, therefore, considered that said appellant recover of said appellee costs herein.

    It is ordered that a special mandate be sent to the Cuyahoga 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.

    Kilbane, P.J., and Sweeney, J., Concur.

    1 The definition of "subordinate" does not provide for the exclusion of that which is in a lower position.

Document Info

Docket Number: No. 84182.

Citation Numbers: 2004 Ohio 5739

Judges: ANTHONY O. CALABRESE, JR., JUDGE.:

Filed Date: 10/28/2004

Precedential Status: Non-Precedential

Modified Date: 4/17/2021