COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73040 PARKBROOK DEVELOPMENT : CORPORATION : : JOURNAL ENTRY PLAINTIFF : : AND v. : : OPINION AUSTINBURG DEVELOPMENT : CORPORATION : : DEFENDANT-APPELLEE : : v. : : CICOGNA ELECTRIC & SIGN : COMPANY : : THIRD PARTY : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-297348. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Defendant-appellee: James J. Sartini, Esq., 4717 Park Avenue, P.O. Box 1247, Ashtabula, Ohio, 44005-1247. For Third Party Defendant-appellant: Thomas J. Simon, Esq., 1105 Bridge Street, P.O. Box 3048, Ashtabula, Ohio, 44005- 3048. SWEENEY, JAMES D., J.: Third-party-defendant-appellant Cicogna Electric & Sign Co. (Cicogna) appeals the decision of the trial court granting judgment in favor of the third-party-plaintiff-appellee Austinburg -2- Development Corporation (Austinburg). Upon a complete review of the testimony, evidence and record, the decision of the trial court is affirmed. On October 25, 1995, Parkbrook Development Corporation (Parkbrook) filed an action against Austinburg seeking to recover monies lent to Austinburg for the purchase of a sign from the appellant. Austinburg filed its third party complaint against the appellant alleging that Cicogna failed to construct the sign and failed to return the $67,000 given as payment for the sign. The appellant filed a counterclaim against Austinburg, essentially alleging that it had substantially performed; that Austinburg fraudulently asserted a contract; that Austinburg refused to accept the sign, resulting in storage costs; that Austinburg interfered with the contract between the appellant and Parkbrook; and that Austinburg failed to obtain the necessary permits. Prior to trial, Austinburg consented to judgment in favor of Parkbrook in the amount of $67,000. A trial to the bench commenced between Austinburg and Cicogna on the third party complaint and counterclaim. Subsequently, the court entered findings of fact and conclusions of law. In its findings of fact the court found: 1. Plaintiff, Parkbrook Development Corporation ( Parkbrook ), and Third-Party Defendant, Cicogna Electric & Sign Co. ( Cicogna ), entered into a written contract ( Contract ) on or about May 9, 1994 whereby Cicogna agreed to manufacture and install a sign ( Sign ) and electronic message center ( Message Center ) for use by Defendant/Third-Party Plaintiff, Austinburg Development Corporation ( Austinburg ), for a purchase price of Sixty-Seven Thousand Dollars ($67,000.00). -3- 2. A preliminary draft of the Sign and Message Center was completed on April 19, 1994, and after modifications were made to the preliminary draft, a final design was approved and agreed upon by the parties on or about June 8, 1994. 3. On or about April 5, 1994, and prior to executing the Contract for the Sign and Message Center, Cicogna's Director of Marketing, Tim Eippert, received a price quote from Integrated Systems Engineering, Incorporated ( Integrated ) on behalf of Cicogna for the Message Center portion of the Sign, but the Message Center was never purchased from Integrated by Cicogna. 4. On or about May 10, 1994, and pursuant to the Contract, Parkbrook paid the entire purchase price of Sixty-Seven Thousand Dollars ($67,000.00) to Cicogna before any manufacturing of the Sign and/or Message Center commenced. 5. On or about September 15, 1995, Parkbrook assigned to Austinburg all its rights, title and interest in the Contract, and Austinburg further acknowledged on or about September 15, 1995 that it was in receipt of a loan for Sixty-Seven Thousand Dollars ($67,000.00) from Parkbrook. 6. Prior to entering into the Contract with Parkbrook, Cicogna advertised that it was a registered and licensed sign contractor in over eighty (80) municipalities and that its Graphics and Engineering Department specialized in permitting and various other procedures relating to the manufacture and sale of customized signs. 7. Eippert, as Director of Marketing for Cicogna at the time the Contract was executed, assumed the responsibility on behalf of Cicogna to secure any permits that would be required in connection with the installation of the Sign and Message Center. 8. With respect to the sale of the Sign and Message Center that are at issue in this case, there was an understandingbetween the parties that Cicogna would not begin manufacturing the sign until required permits were secured and it could be determined whether or not installation of the Sign and Message Center could properly take place. 9. On behalf of Cicogna, Eippert applied to the Ohio Department of Transportation on August 15, 1994 for an Outdoor Advertising Devise Permit , but this permit -4- was never approved, because a federal law requires signs to be located on the same property as the activities they are advertising, and because Austinburg could not meet this on property sign requirement due to the fact that it had previously subdivided its lots. 10. Eippert terminated his employment with Cicogna toward the end of August, 1994, but he continued without success after August, 1994 to attempt to secure permit approval for the Sign and Message Center with the help of Austinburg's President, George Cepsegi. 11. Because the required permits could not be secured, the Sign and Message Center were not completely manufactured, and nor have they been installed. In the conclusions of law the court further found that the denial of the Outdoor Advertising Device Permit by the Ohio Department of Transportation rendered the contract between the parties impossible to complete. The court stated that based upon the testimony and evidence presented, Cicogna assumed and accepted the risk that the permits would not be granted. The ultimate impossibility of the contract performance stemming from governmental disapproval of the permits was a risk of loss assumed by Cicogna. The court noted that based upon the understanding between the parties that Ciconga would secure permits prior to manufacturing and installing the Sign and Message Center, it was unforeseeable to Parkbrook and/or Austinburg that Cicogna would begin the manufacturing process prior to permit approval. Finally, the court held: Since a basic and material understanding under which this contract was made included the understanding that the sign was to be installed on Austinburg's property, Cicogna's position that the sign was partially manufactured, that it can be completed, and that the sign can be installed is without merit. Because the required permits were never approved, the Sign and Message Center cannot now or ever be installed on Austinburg's property. -5- Further, even if this Court were to hold that there was no understanding between the parties as to the time when manufacturing of the Sign and Message Center was to commence, Cicogna has presented no probative, credible or reliable evidence as to the extent or value of its alleged partial performance of its obligations under this Contract. Cicogna presented no time slips or other documentary evidence to support its bald, self-serving contention that all but $25,000 to $30,000 had been spent on manufacturing the partially completed Sign and/or Message Center when the permit request was ultimately denied. The court concluded by awarding judgment to Austinburg in the sum of $67,000 plus interest at the legal rate of 10% per annum from May 10, 1994. The appellant asserts two assignments of error. The first assignment of error: THE TRIAL COURT ERRED IN RENDERING A JUDGMENT ENTRY IN FAVOR OF DEFENDANT-APPELLEE AUSTINBURG DEVELOPMENT CORPORATION AGAINST THIRD PARTY DEFENDANT-APPELLANT CICOGNA ELECTRIC & SIGN CO., INC., DUE TO THE SAME BEING AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The appellant argues that the written agreement did not obligate Cicogna to obtain the government permits for the placement of the sign. The appellant also asserts that: 1) the testimony of Tim Eippert should be discounted because he later purchased MC Sign Co., a business competitor of Cicogna's, and because David Emmanuel, the individual from whom MC Sign Co. was purchased, is the person who signed the contract on behalf of Parkbrook; 2) the application for the permit was signed by Eippert, not the owner of the sign as required on the form; 3) the check paid to Cicogna incorrectly indicates the payment is for the lease of a sign for one year; 4) the owner of Parkbrook is Gary Harris, whose name -6- appeared on the MC Sign Co.'s vendor's license; 5) there was a delay between the time of the agreement and the time Eippert sought the permits; 6) Eippert sought the permits at about the same time he terminated his employment with Cicogna; and, that 7) the monetary connection between Eippert and Parkbrook/Austinburg/Harris/Emmanuel are too numerous and too blatant to be ignored. The test to be applied as to whether or not a judgment is against the manifest weight of the evidence was set forth as follows in Arnett v. Midwestern Ent., Inc. (1994), 95 Ohio App.3d 429: We initially note that a judgment supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. See C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280, 8 O.O. 3d 261, 262, 376 N.E.2d 578, 579. In addition, under a manifest weight of the evidence test, the court of appeals is guided by the presumption that the findings of the trial court are correct. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 411, 461 N.E.2d 1273, 1276. See also Cent. Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d 581. In the case sub judice, the appellant has failed to meet its heavy burden. While the appellant points out the financial entanglements between Mr. Eippert, Parkbrook, and the owners, officers and/or employees of Parkbrook, this evidence was heard by the trial court. The trial court also heard evidence that the application for the permit was signed by Eippert, not the owner of the sign as required on the form; that the check paid to Cicogna -7- incorrectly indicates the payment is for the lease of a sign for one year; that there was a delay between the time of the agreement and the time Eippert sought the permits; and that Eippert sought the permits at about the same time he terminated his employment with Cicogna. The fact that the trial court did not specifically mention these facts in its findings of fact and conclusions of law does not mean that the trial court did not hear, or failed to consider, this evidence. Even where evidence is susceptible to more than one interpretation, this court must give it the interpretation consistent with the trial court's judgment. Cent. Motors Corp., supra, citing to Seasons Coal Co., supra. Notwithstanding the appellant's assertions to the contrary, the trial court heard competent, credible evidence to support its decision, and this court may not enter a reversal. The appellant's first assignment of error is overruled. The appellant's second assignment of error: THE TRIAL COURT ERRED IN NOT ENTERING A JUDGMENT INSOFAR AS THE COUNTERCLAIM OF THIRD PARTY DEFENDANT-APPELLANT CICOGNA ELECTRIC & SIGN CO., INC. IS CONCERNED. The appellant asserts that the court's failure to specifically mention the counterclaim in the findings of fact and conclusions of law is an indication that the decision is against the manifest weight of the evidence. This contention is also without merit. A judgment in an action which determines a claim in that action and has the effect of rendering moot all other claims in the -8- action as to all other parties to the action is a final appealable order. Wise v. Gursky (1981), 66 Ohio St.3d 241, 243. Here, the court's findings of fact and conclusions of law resolved each and every issue present before the court and resolved all claims against all parties. The order was final, and in no way reflects on the court's conclusions as to the weight of the evidence. The appellant's second assignment of error is overruled. Judgment affirmed. -9- 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 Common Pleas 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. Exceptions. JAMES M. PORTER, P.J., and KENNETH A. ROCCO, J., CONCUR. ______________________________ JAMES D. SWEENEY JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .