COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59043 : : MALRITE COMMUNICATIONS : : JOURNAL ENTRY Plaintiff-Appellee : : and : -vs- : OPINION : : WALTER GROSSER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1991 CHARACTER OF PROCEEDING: Civil appeal from Shaker Hts. Municipal Court Case No. CVF-3466 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: MICHAEL HAZELWOOD ROBERT O. GARNETT 1050 Statler Office Tower 20475 Farnsleigh Road 1127 Euclid Avenue Suite #306 Cleveland, Ohio 44115 Shaker Heights, Ohio 44122 -2- PATRICIA A. BLACKMON, J.: Appellant Walter Grosser timely appeals the decision of the trial court that granted judgment for the appellee Malrite Communications against the appellant Walter Grosser and the defendant Richard Reynolds doing business as Able Construction Company, ("Able"). At the time that the appeal was filed the appellant declared that an agreed statement of the proceedings would be filed with this court. Nevertheless, the trial court adopted its "FINDINGS OF FACTS AND CONCLUSIONS OF LAW" as the statement of proceedings, and it was filed as the sole record of the proceedings pursuant to App. R. 9(D). The trial court adopted the following facts: "*** Defendant Grosser, on behalf of Able Construction Co. and defendant Reynolds, contracted with the plaintiff for television advertising to be run on an indefinite basis until cancelled by either party. Defendant Grosser paid to the plaintiff a $200.00 advance deposit to be applied to future billings by the plaintiff. The plaintiff aired television commercials on behalf of Able Construction Co. The defendants did not pay for the advertising as it was billed, and, as a result, the plaintiff ceased airing the television commercials. The defendants never contacted the plaintiff and requested that the plaintiff stop running the tele- vision commercials. After deduction of the $200.00 deposit, there is due the plaintiff upon an open account the sum of $1,900.00 from October 9, 1988. ***" The trial court then concluded as a matter of law that the appellee performed its obligation and that the appellant breached his obligation by failing to pay for the commercials that were -3- aired. Thereafter, the court assessed liability, and only the appellant Walter Grosser appealed. The appellant's sole assignment of error states the following: A PARTY TO A CONTRACT MAY NOT RECOVER FOR PERFORMANCE DONE AFTER NOTICE OF THE BREACH OF A MATERIAL TERM OF THE CONTRACT BY THE OTHER PARTY THERETO. The issue before this court is whether the appellant is liable for breach of a contract to purchase production and air time for television commercials for Able Construction. In order to resolve this dispute it is necessary to assess the facts of the case. The trial court adopted its findings of fact and conclusions of law as the statement of the proceedings pursuant to App. R. 9(D), and it was filed as a part of the record. The record revealed that neither the appellant nor the appellee opposed the trial court's statement of the proceedings, although their respective briefs contained conflicting facts from those in the trial court's App. R. 9(D) statement. The appellant remarks in his brief that the contract committed him to pay $200.00 in advance and placed no duty on the appellee to perform once further advance payments were not made. The appellant argues that the failure to pay in advance constitutes notice of a material breach that voids recover. We disagree with the appellant's assessments of the facts. The law is clear that a reviewing court is bound by the record before it -4- and will disregard facts not before it. Lamar v. Marbury (1982), 69 Ohio St. 2d 174. The facts in the record before this court is that the appellant, on behalf of Able, entered into an agreement with the appellee to purchase commercial television advertisements to be aired indefinitely unless cancelled by either party. The appellant pre-paid $200.00 to be applied to future billings. These facts are substantially different from those stated in the appellant's brief. Therefore, this court is bound only to assess if the evidence presented at trial established a contract that was breached. In a prior decision this court held that "an agreement is enforceable if it encompasses the essential elements of the bargain". Mr. Mark Corp. v. Rush, Inc. (1983), 11 Ohio App. 3d 167. The parties in this case agreed that the appellant would pay for commercial advertisement that was produced and aired on the appellee's television station. The commercials were to air until either party cancelled. It is this court's opinion that the agreement contained the essential elements of a bargain. Furthermore, the commercials were aired, the appellant was billed for the air time, and the appellee ceased performance when the appellant failed to pay for the air time used. Consequently, this agreement was sufficiently certain for enforcement, it provided the trial court with a basis for determining that the agreement was breached, and the appropriate remedy was given. Mr. Mark Corp. v. Rush, Inc., supra. -5- Finally, the appellant argues that the failure to pay constituted a failure of consideration that resulted in excusing him from liability. We find this argument totally void of any merit. There was consideration once the appellant paid the $200.00. Accordingly, the appellant's assignment of error is not well taken. Judgment affirmed. -6- It is ordered that appellee recover of appellant its 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 Shaker Heights Municipal Court 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. PATTON, P. J., and HARPER, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .