COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66821 ATHENS PASTRIES & FROZEN FOODS, INC: : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ADELPHIA FOOD SERVICE CO. : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 9, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 229,052 JUDGMENT : AFFIRMED IN PART; : REVERSED IN PART AND : REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: JOHN G. PAPANDREAS AIMEE E. GILMAN Attorneys at Law 706 Citizens Building 850 Euclid Avenue Cleveland, Ohio 44114 For defendant-appellant: KENNETH BOUKIS THOMAS L. BRUNN, JR. Attorneys at Law 520 Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1790 - 2 - DONALD C. NUGENT, J.: This is an appeal from a summary judgment entered by the Cuyahoga County Common Pleas Court. In this appeal, defendant/counterclaimant, Adelphia Food Service Inc., a.k.a. Midwest Food Specialty Co. (hereinafter "appellant" or "Midwest"), challenges the trial court's decision granting the plaintiff/counterclaim defendant, Athens Pastries & Frozen Foods Inc. (hereinafter "appellee" or "Athens"), summary judgement on appellant's counterclaims for claim on account, trademark infringement, breach of contract/unfair trade practice, and breach of warranty/intentional tort. This appeal stems from a complaint on an account filed on March 18, 1992, by Athens against Midwest seeking payment of $20,034.01, plus interest, for products sold to Midwest. On June 17, 1992, Midwest filed its answer and counterclaim. On August 2, 1993, Athens moved for summary judgment both on its claim against Midwest and on Midwest's counterclaims. On December 28, 1993, the court of common pleas granted Athens' combined motion for summary judgment, without opinion. The pertinent facts giving rise to this appeal are found in the evidentiary materials attached to the parties' briefs in - 3 - support of, and in opposition to, Athens' motion for summary judgment. I. The facts of this case and the relationship of the parties are much in dispute. However, the following are undisputed by the parties: Appellee Athens is a manufacturer and supplier of Greek and Mediterranean food products. Appellant Midwest is a local manufacturer of meat and bread products consisting principally of gyro meat, pita bread and several other items. Midwest and Athens Pastries had been engaged in business together throughout the 1980's. Athens would buy a great deal of Midwest's meats and specialty products and sell them under their own label as well as the (Adelphia) Midwest label. Sometime during 1987, Athens decided to abandon the food distribution end of its business. Pursuant to this end, Athens approached Midwest to become a distributor of its food products. At this time, the parties entered into an oral distribution agreement wherein Athens agreed to supply and Midwest agreed to distribute Athens' food products within the State of Ohio. The parties continued with this arrangement for several years. At no time during this time did the parties enter into a written manifestation of their agreement. - 4 - The remaining facts are derived from a review of the affidavits, depositions and evidence in the record as a whole. Throughout the parties' course of dealing, it was customary for Midwest to carry a balance for the products it purchased from Athens. Midwest would periodically make payment on the balance it owed to Athens as it would receive payment from its customers. Also pursuant to the parties' oral agreement, Athens would purchase gyro meat from Midwest and sell it under the Athens label. In the latter part of 1990, Midwest, at Athens's request, furnished one hundred sixty posters to Athens. These posters were commonly used for commercial display and contained the Midwest USDA number. At the time that the posters were delivered, no specific price terms or invoice was discussed between the parties. During 1990, at Athens' request, Midwest began design of a new label for the gyro product which Athens was purchasing from Midwest. At the time, Athens was not billed by Midwest for the preparation of this label. However, Midwest did incur great expense in the design and creation of this label. Also during 1990, Midwest procured boxes for the shipment of gyro meat for Athens. These boxes were made specifically for use with Athens' product and were not of normal industry standard size. Due to the abnormal size of the boxes, they were more expensive than the typical gyro box. In January, 1991, Athens underwent a change of management. Shortly thereafter, the new management of Athens requested that - 5 - Midwest begin to "pay down" the balance owing for the products Midwest had purchased from Athens. Pursuant to this end, Athens demanded that all future orders placed by Midwest were to be on C.O.D. basis. In August, 1991, unable to keep up with the payments on its account, Midwest stopped purchasing product from Athens. Shortly thereafter, the companies ceased interacting in business. On March 18, 1992, Athens brought suit to collect the $20,034.01 owed on account by Midwest. In response, Midwest filed an answer and four counterclaims against Athens. II. Based on the foregoing, the trial court granted Athens' motion for summary judgment on its claim on account and the counterclaims 1 of Midwest . Midwest now appeals, assigning as error the following: THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS THERE ARE GENUINE ISSUES AS TO MATERIAL FACTS, AND REASONABLE MINDS CAN COME TO DIFFERENT CONCLUSIONS. The validity of a grant of summary judgment is decided within the confines of Civ. R. 56. Civ.R. 56(C), provides, in pertinent part, as follows: 1 Midwest does not contest the granting of summary judgment on Athens' claim on account. This appeal puts in issue only the trial court's granting of summary judgment as it relates to Midwest's cross-claims. - 6 - *** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. Summary judgment shall be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. This court's analysis of an appeal from a summary judgment action is conducted under a de novo standard of review. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App. 103, 107; Howard v. Wills (1991), 77 Ohio App.3d 133. This court independently reviews the record to determine if summary judgment is appropriate. Accordingly, the judgment of the trial court is given no deference upon review, and we apply the same analysis as the trial court. See, State, ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545. III. With these standards in mind, we now turn to consider whether summary judgment was properly granted on the claims set forth by defendant-appellant in its counterclaim; to wit: claim on account (Count I of appellant's counterclaim), trademark infringement - 7 - (Count II of appellant's counterclaim), breach of contract/unfair trade practice (Count III of appellant's counterclaim), and breach of warranty/intentional tort (Count IV of appellant's counterclaim). A. Appellant Midwest's first cause of action in its counterclaim alleges that appellee Athens owed $6,960 on an account for the purchase of posters, boxes, and labels. Pursuant to Civ.R. 10(D), Midwest attached invoices for these items to the complaint. An action on an account is founded upon contract. See, AMF, Inc. v. Mravec (1981), 2 Ohio App.3d 29. An account is merely a pleading device used to consolidate several different claims one party has against another; an action on an account is appropriate where the parties have conducted a series of transactions for which a balance remains to be paid. Dykeman v. Johnson (1910), 83 Ohio St. 126. This is the exact situation that is presented herein. The term "contract," in its legal sense, includes every description of agreement or obligation, whether verbal or written, whereby one party becomes bound to another to pay a sum of money or perform a certain act. It is basic contract law that to have an enforceable contract, there must be a meeting of the minds of the parties to the contract. Noroski v. Fallet (1982), 2 Ohio St.3d 77. Further, a contract is enforceable if it encompasses the essential elements of the bargain, such as the identity of the - 8 - parties to be bound, the subject matter of the contract, consideration and price term. See, e.g., Natl. City Bank v. Reat Corp. (1989), 64 Ohio App.3d 212, 215-216; Mr. Mark Corp. v. Rush, Inc. (1983), 11 Ohio App.3d 167. In the present case, the parties never entered into a written manifestation of their agreement. Instead, their entire business relationship was founded upon an oral contract. This contract encompassed the essential elements through which the parties would engage in their business transactions. On the basis of this oral contract, the parties amicably transacted business for several years. During the course of these several years, Midwest often supplied Athens with various services and products designed for the advertising, shipping and sale of its food products. Specifically, Midwest supplied Athens with a label for its gyro product, posters to advertise its gyro product, and specialty boxes to ship its gyro product. In moving for summary judgment, appellee does not deny that it received these goods and services from appellant. Rather, it contends that there was no express agreement between the parties for Athens to pay for these specific goods and services. Athens claims that the parties agreed that the price of these goods and services would be made up in the price that Midwest charged Athens for its product. Therefore, appellee contends that it should not - 9 - incur any cost for the services and products furnished by appellant. In contradiction to Athens' contention, appellant offers the sworn affidavit of Dean Bates, President of Midwest, wherein he states that it was always his intention to bill Athens for the posters, boxes and labelling. In his affidavit and deposition testimony, Mr. Bates states that he told Jeff Swint, operations manager for Athens, that Midwest fully intended to charge Athens for the cost of the boxes. Further, Mr. Bates states that the boxes were billed to Athens pursuant to industry standards. Mr. Bates' deposition is supported by the deposition testimony of William Pappas. Mr. Pappas was an employee and executive at Athens for many years during the parties' agreement. His father was the founder of the company. In his deposition, he states: Q. *** Do you have any recollection of ever agreeing to pay for boxes? A. No. Q. Was it in the normal course of business if Midwest was producing gyro, for example, and selling it either for their label of Athens' label, was it the practice that you recall for Athens to pay for the boxes? A. It's basically industry standard because Athens also private labeled for people that -- for our customers as well. If Dean [Bates] -- because at the time we were discussing him private labelling gyro for us, if he had boxes printed that said Athens' gyro and he was producing that as a private label for us, at that point in time, should Athens decide not to do - 10 - business with Dean or Adelphia --I mean, whatever boxes were in stock --I mean, it's the responsibility of Athens to buy those. Pursuant to Civ.R. 56(E), the sworn affidavit of Mr. Bates, as well as the deposition testimony of Mr. Pappas, is sufficient evidence to preclude summary judgment on this issue. Civ.R. 56(E), provides, in pertinent part, as follows: *** Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissable in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. *** When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. The evidence introduced by appellant presents a genuine issue as to whether or not there existed an agreement between the parties to pay for the boxes furnished to Athens by Midwest. Appellant also claims that Athens failed to pay for Midwest's services in designing and developing a label for Athens' gyro product. Athens does not deny that Midwest designed a label for its gyro product; rather, it is Athens' contention that it should not have to pay for the design and development of the label because, it claims, no price term was ever discussed between the parties. Athens' contention is that the label was to be provided by Midwest as a normal expense of doing business. - 11 - In his sworn affidavit, Mr. Bates states that the method of developing a label and presenting it to the USDA is a complicated, and time-consuming endeavor. In addition, Mr. Bates asserts that Athens was fully aware that Midwest would charge for the production of these labels. In response, Athens offered no evidence to refute this contention of Midwest. Upon review of a summary judgment, the evidence must be construed in favor of the non-moving party. Civ.R. 56(C). Summary judgment should not be granted if reasonable minds can come to different conclusions as to the material aspects of a claim. See, Mitseff v. Wheeler (1988), 38 Ohio St.3d 112. Mr. Bates' affidavit and deposition testimony, in addition to the testimony of Mr. Pappas, is evidence sufficient to preclude a granting of summary judgment. If, as Midwest suggests, it is the custom and practice of the industry to charge for these items, it is an issue that will have to be decided by the trier of fact through the use of testimony, expert witnesses, etc. The evidence in the record leaves a question of fact as to whether or not Athens agreed to pay for the posters, boxes and labels. A resolution of this matter would necessarily require the court to judge the credibility of the witnesses, a process which is only for the trier of fact, at trial, and is wholly inappropriate in the consideration of a motion for summary judgment. Aglinsky v. Cleveland Builders Supply Co. (1990), 68 Ohio App.3d 810, 817. - 12 - Accordingly, appellant's assignment of error is well taken as it relates to the first count of appellant's counterclaim regarding the $6,960 claimed to be owed on account from Athens to Midwest. B. Appellant Midwest's second cause of action is a claim for deceptive trade practice. An action for deceptive trade practice arises from R.C. 4165.02, which provides, in pertinent part, as follows: *** A person engages in a deceptive trade practice when, in the course of his business, vocation, or occupation, he: (A) Passes off goods or services as those of another; (B) Causes likelihood of confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services; (C) Causes likelihood of confusion or misunderstanding as to the affiliation, connection, or association with, or certification by, another; * * * (I) Advertises goods or services with intent not to sell them as advertised. *** To prevail under common law deceptive trade practice as codified in R.C. 4165.01 et seq., plaintiff must establish the likelihood of confusion, mistake, or deception caused by the use of another's trademark. Ohio law states that the plaintiff must show that the use of the trademark by another could cause a "confusion - 13 - of identity." See, Anheuser-Busch v. Florists Assn. of Greater Cleveland (1984 N.D. Ohio), 603 F.Supp. 35. Appellant, in its counterclaim, asserts that Athens "engaged in a deceptive trade practice by selling another company's gyro products under the Athens' label." Further, appellant contends that Athens was buying gyro meat from a Michigan company and selling it in a package containing Midwest's USDA manufacturing number. Appellee, in moving for summary judgment, attached the sworn affidavit of Emanuel Kohelis, Regional Sales Manager of Athens. Mr. Kohelis stated that at no time during the time in question did Athens buy gyro meat from a supplier other than Midwest. In response to the affidavit of Mr. Kohelis, Midwest did not set forth any proof demonstrating the truth of the contentions stated in their cause of action. A motion for summary judgment forces the non-moving party to produce evidence on any issue for which that party bears the burden of production at trial. See, Wing v. Anchor Media, LTD (1991), 59 Ohio St.3d 108, 111; construing Civ. R. 56(E), supra. A non-moving party cannot rest on mere allegations in responding to a summary judgment motion and, through affidavits or otherwise, must respond to the affidavits and answers to interrogatories filed by the moving party in order to demonstrate that a triable issue of fact exists. See, Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48. - 14 - From a review of the record in the present case, Midwest has provided no evidence to show that Athens engaged in a deceptive trade practice or that Athens caused confusion, mistake, or deception in the use of Midwest's trademark. Anheuser-Busch, supra. Summary judgment is appropriate when the non-moving party does not produce evidence sufficient to support the basis of its claim. See, Wing, supra. Accordingly, appellant's assignment of error is not well taken as it relates to the second count of appellant's counterclaim. Therefore, we conclude the trial court did not err in granting Athens summary judgment on this issue. C. Appellant Midwest's third cause of action is for breach of 2 contract/unfair trade practice . Since the contract between the parties is for the sale of "goods," the application of the Ohio Uniform Commercial Code, R.C. 1302, et seq., must first be considered. R.C. 1302.22(A) provides that: 2 Appellant has claimed an "unfair trade practice" as an element of Count III of its counterclaim. However, appellant has neither argued nor briefed this aspect of its cause of action. R.C. 1345.02 contains a representative list of unfair/deceptive trade practices. However, unfair trade practices are restricted to consumer sales practices. The contract between the parties herein is a contract between two merchants. For these reasons, this court will treat appellant's Count III solely as a claim for breach of contract. - 15 - The time for shipment or delivery or any other action under a contract if not provided in sections 1302.01 to 1302.98, inclusive, of the Revised Code or agreed upon shall be a reasonable time. (Emphasis Added). R.C. 1302.11(A) states that: Where the contract for sale involves repeated occasions of performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement. (Emphasis Added). Also, R.C. 1301.09 imposes on all parties to a contract an obligation of good faith in the performance or enforcement of the contract. Hollis v. Central Trust Co. (1994), 93 Ohio App.3d 94, 97; Bennco Liquidating v. Ameritrust Co. (1993), 86 Ohio App.3d 646. "Good faith" is a compact reference to an implied undertaking by the parties not to take opportunistic advantage in a way that could not have been contemplated by the parties when they entered into their agreement. See, Gaul v. Olympia Fitness Center, Inc. (1993), 88 Ohio App.3d 310, 320. Midwest claims that Athens breached the oral contract between the parties by unilaterally revoking a $50,000 line of credit that was given to Midwest. Midwest further contends that the revocation of the line of credit amounted to an unfair trade practice by Athens. Conversely, Athens claims that a $50,000 line of credit never existed and was never a term of the parties' oral distribution agreement. The confines of the parties' contract have previously been discussed by this court. They are evidenced by the several years - 16 - of business in which the parties interacted. It is undisputed from the record and business relationship of the parties that sometime in 1987, they entered into a supplier/distributor relationship in which Athens was the supplier and Midwest was the distributor. The minds of both parties are not in dispute as to these terms. What is in dispute is the existence of, or revocability of, a line of credit extended to Midwest pursuant to the parties' distribution agreement. It is with this issue that the parties cannot reach agreement. Pursuant to Civ.R. 10(D), attached to Athens' original claim on account was a listing of the account between Athens and Midwest. This record of account is part of the record before this court. A review of this record shows that it was the custom of the parties to allow Midwest to carry a balance on its account with Athens. In fact, at the time of the initiation of this lawsuit, Midwest was carrying over $20,000 on account with Athens. The parties' contract was an agreement between two companies to supply and distribute products. The contract did not contain terms as to a specific time or method to revoke the agreement. The law states that where the parties to a contract have not reached agreement as to certain subjects, such as when a line of credit becomes due, courts will determine their meaning according to accepted legal principles. See, Mr. Mark Corp. v. Rush, Inc. (1983), 11 Ohio App.3d 167. If a contract fails to specify a time of duration, the - 17 - law implies a reasonable time. See, Miller v. Bealer (1992), 80 Ohio App.3d 180, 183. Also, R.C. 1301.10(B) states that: What is a reasonable time for taking any action depends on the nature, purpose, and circumstances of that action. Throughout their years of dealing, Athens regularly sold products for distribution to Midwest. Midwest would periodically make payments toward the balance it owed Athens for these products. This arrangement was accepted by the parties and continued without problems until the new management of Athens demanded that Midwest "pay down" the balance of its account, effectively rescinding the purported line of credit. In deciding the issue of the existence of a breach of contract, it is necessary to look at the terms of the agreement as well as the course of performance and conduct of both parties which recognizes the existence of such a contract. R.C. 1302.11(B). From a review of the evidence presented before this court, it is apparent that it was the manner of dealing between the parties for Midwest to carry a balance on an account with Athens. Whether this account had a limit or what that limit was is a question that cannot be gleaned from the record. Appellant contends the line of credit existed in an amount of $50,000, and the appellee contends that the line of credit did not exists at all. Attached to appellant's Brief in Opposition to Summary Judgment is the affidavit of Dean Bates, which states, in pertinent part, as follows: - 18 - *** 3. Pursuant to the agreement, Adelphia was given a list of Athens' customers which Adelphia (Midwest) was to service and supply. Adelphia was also given an open line of credit from Athens in the amount of $50,000.00. Whatever the contentions of the parties, it is clear from a review of the record and account between the parties that there did exist some form of an agreement by which Midwest could carry a balance for a period of time with Athens. The parameters of this agreement and the existence of a line of credit are questions which could only be answered with a determination as to the credibility of the evidence presented by the parties. It is not proper for a court to consider the credibility of the evidence in ruling on a motion for summary judgment. See, Turner v. Turner (1993), 67 Ohio St.3d 337, 341. A court should only consider the proper evidence before it, weigh it in a light most favorable to the non-moving party, and grant summary judgment if, as a matter of law, reasonable minds could come to but one conclusion. This is the proper role of a court in deciding issues pursuant to Civ.R. 56(C). It appears from a review of the evidence in the record that the trial court determined the credibility of the evidence in the present case, contrary to the purpose of Civ.R. 56(C). The trial court accepted the appellees contention that there was never a line of credit and rejected the evidentiary material of appellant which clearly shows the presence of a genuine issue as to whether a line of credit did exist between the parties. - 19 - We think that on the basis of the record before this court, it was error to grant summary judgment as the moving party, Athens, had the burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the material it presented must be viewed in the light most favorable to the opposing party, Midwest. Athens did not carry its burden because of its failure to foreclose the possibility that the parties had indeed agreed upon an open line of credit for $50,000. It is true that appellee presented the sworn affidavit of Athens' president, Roger Olson, that stated that he knew of no credit arrangement with Midwest. This statement alone does not preclude the existence of an arrangement. The statement by Mr. Olson is only proof that the new management was unaware of any line of credit; it is not proof that the line of credit never existed. Given these unexplained gaps in the materials submitted by Athens, we conclude that Athens failed to fulfill its burden of demonstrating what the critical element is in this aspect of the case -- that there was never a line of credit available to Midwest. If a line of credit were shown to exist at any time, we think it would be for a jury to decide, in light of the relationship of the parties and their years of dealing, that a line of credit existed up to a certain amount and for a certain time within the relationship of the parties. - 20 - Therefore, for the reasons set forth above and construing the evidence most in favor of the appellant, we find that summary judgment on this issue was improper. D. Appellant Midwest's fourth cause of action is for breach of warranty/intentional tort. This cause of action is based upon appellant's contention that Athens knowingly, purposefully, and with malice aforethought adulterated a Grecian sauce made by Athens for Midwest. As previously stated, the burden is upon the party moving for summary judgment to show that no issues of material fact exist. However, once the movant has supported its motion with appropriate evidentiary materials, the non-moving party may not rely upon the allegations and/or denials in its pleadings. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115; Jackson, supra. The nonmovant must present evidentiary materials showing that a material issue of fact does exist. Id. Appellant herein contends, through the deposition testimony of Dean Bates, that appellee "knowingly, recklessly and with malice aforethought" adulterated a Grecian sauce which appellee manufactured for appellant. In his deposition testimony, Mr. Bates states that he bases his belief upon the findings and opinions of Dr. Laproupoulos, the apparent creator of the formula for the sauce. However, Dr. Laproupoulos was never deposed and never - 21 - testified, by affidavit or otherwise, to the validity of Mr. Bates' belief. Mr. Bates' statement is the only evidence that appellant presents to support this cause of action. This portion of Mr. Bates' affidavit constitutes hearsay as defined in Evid. R. 801(C), is inadmissible as provided by Evid. R. 802, and fails to qualify as an exception to hearsay as provided in Evid. R. 803. As such, the statement is not admissable and could not have been properly considered by the trial court in reaching its decision on Athens' motion for summary judgment on the adulteration of sauce claim. See, Penwell v. Taft Broadcasting Co. (1984), 13 Ohio App.3d 382, 386. Appellant has not provided a scintilla of evidence to prove even the essential contentions of this cause of action. It has not provided any evidence pursuant to Civ.R. 56(E) by way of pleadings, depositions, answers to interrogatories or affidavit to support the contentions of the cause of action. Clearly, appellant has failed to show that there is a material issue of fact that exists in regard to this cause of action. Mitseff, supra. Accordingly, we find that the trial court properly granted summary judgment on this issue. The judgment of the lower court is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with this opinion. - 22 - This cause is affirmed in part and reversed in part and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant and appellee split the costs herein in equal shares. It is ordered that a special mandate be sent to said 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. ANN DYKE, J. AUGUST PRYATEL, J.* CONCUR PRESIDING JUDGE DONALD C. NUGENT *SITTING BY ASSIGNMENT: August Pryatel, retired Judge of the Eighth Appellate District. 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 journalization, at which time it will become the judgment and order of the court and time .