COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73367 22810 LAKESHORE CORP., ET AL. : : Plaintiffs-Appellees : JOURNAL ENTRY : -vs- : AND : XAM, INC., ET AL. : OPINION : Defendants-Appellants : Date of Announcement of Decision: OCTOBER 8, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 303614 Judgment: Reversed and remanded. Date of Journalization: Appearances: For Plaintiffs-Appellees: TEDDY SLIWINSKI, ESQ. 5810 Fleet Avenue Cleveland, Ohio 44105 For Defendants-Appellants: RUBIN GUTTMAN, ESQ. ANN MARIE STOCKMASTER, ESQ. Rubin Guttman Co., L.P.A. 55 Public Square, #2130 Cleveland, Ohio 44113 -2- JAMES M. PORTER, J.: Defendants-appellants XAM, Inc. and its two officers and owners (XAM) appeal from a judgment of the trial court following a bench trial and finding in favor of plaintiffs-appellees 22810 Lakeshore Corp. and its owners (Lakeshore) for damages resulting from the alleged breach of an agreement for purchase of a bar. XAM contends that the trial court's finding that the landlord on the underlying lease did not consent to an assignment of that lease is against the manifest weight of the evidence; that the trial court erred as a matter of law in ruling that plaintiffs used their best efforts to obtain transfer of a state liquor license; and that the trial court erred in finding for plaintiffs on XAM's counterclaim for damages for breach of the purchase agreement. We find merit to the appeal, reverse and remand for a new trial on damages only on defendants' counterclaim. In July 1988, James and Donna Brett, officers and sole shareholders of Lakeshore became interested in purchasing the S&S Lounge, a bar located at 22810 Lakeshore Boulevard, Euclid, Ohio and a carry-out beverage store in the adjoining building space. At that time, XAM owned and operated both the S&S Lounge and the beverage store, which had separate liquor permits. Michael and Sandra Stevenson were the officers and sole shareholders of XAM. Both the S&S Lounge and the beverage store operated in space leased by XAM from Aldersyde Partners, Ltd. After several visits to the premises, Mr. Brett eventually decided to purchase the S&S Lounge in the name of Lakeshore. The Bretts and Stevensons negotiated -3- through their shared attorney for nearly a month prior to executing a Purchase Agreement and Management Agreement on July 15, 1988 between Lakeshore as purchaser and XAM as seller. The purchase price for the assets of the business was $250,000, secured by promissory notes. Lakeshore also acquired an option from XAM to purchase the adjoining beverage store. The Purchase Agreement called for the purchase of assets and included a list of specific fixtures and equipment to be conveyed as part of the transaction. The Purchase Agreement also included an integration clause (q29) stating that this Agreement constitutes the entire agreement between the parties. As later became an issue, there was no reference in the Purchase Agreement to a built- in cooler which occupied part of the beverage store space but which also was used to service the bar premises. Although XAM informally permitted Lakeshore access to and use of part of the cooler space, its primary purpose was for the beverage store's use. The Purchase Agreement specifically provided for conveyance of a 5 Compartment Bottle Cooler for use in the S&S Lounge. (Ex. B). The Purchase Agreement provided that the transaction was contingent upon (1) approval by the Ohio Department of Liquor Control of a transfer of the liquor permit to the purchaser to be obtained over a specific period of time; and (2) approval of the lessor (Aldersyde Partners, Ltd.) to a lease assignment of the S&S Lounge space to the purchaser. (q7(A)(B)). Lakeshore, as purchaser, promised to use its best efforts and diligently pursue any and all action necessary to effect a prompt transfer of the -4- liquor permit. (q10(G)). The closing of the purchase was to take place when the liquor permit transfer and lease assignment conditions were satisfied. (q21(A)). In the interim period before closing, XAM gave Lakeshore possession and control of the day-to-day operation of the S&S Lounge pending transfer of the liquor permit and closing, pursuant to the terms of the Management Agreement. (q21(B)). The Management Agreement, also dated July 15, 1988, obliged Lakeshore to take full responsibility for the management and day-to-day operation of the business (1) to pay a monthly fee which was ultimately to be credited against the purchase; (2) to file required reports with governmental agencies; (3) to pay various taxes and workers' compensation premiums; and (4) to comply with rules and regulations issued and promulgated by the Department of Liquor Control of the State of Ohio, which rules and regulations are pertinent to the sale of alcoholic beverages with the subject premises. (Management Agreement qq2(e), 11, 15). Lakeshore applied for transfer of the liquor permit in September 1988. In February or March 1989, the Bretts provided fingerprints to the Liquor Department as part of the permit transfer. In May or June 1989, the Liquor Department requested evidence of an assignment of lease which Lakeshore readily obtained and forwarded to the Department. On August 8, 1989, Aldersyde Partners executed a consent to assignment of the lease to Lakeshore on this state form. In July 1989, the Bretts provided a second set of fingerprint cards to the Liquor Department. -5- As part of the liquor permit transfer application, the Liquor Department inspected the S&S Lounge in July 1989. The agent who performed the inspection never indicated that conditions at the S&S Lounge violated any statute or regulation nor that conditions at the S&S Lounge precluded transfer of the liquor license. However, in October or November 1989, an unidentified clerk at the Liquor Department informed Mr. Brett that she did not believe that the S&S Lounge could share direct access to the adjoining beverage store. Mr. Brett never informed the Stevensons of the potential problem with the shared access nor did Mr. Brett take any steps to eliminate the access way. During the next few months, Mr. Brett obtained information that two liquor license holders could not share common inventory space and that there was a problem with transferring the liquor license. After this verbal communication with the Liquor Department, Mr. Brett neither conveyed that information to the Stevensons nor did he take affirmative steps to remedy the problem. At no time during 1988, 1989 or 1990 did the Liquor Department give Mr. Brett written notice that the liquor license could not be transferred. Under the Management Agreement (q16), the Bretts and Lakeshore obligated themselves to manage the S&S Lounge until the Purchase Agreement closed. The Management Agreement was part of the Purchase Agreement. Defendant XAM contended that from the time Lakeshore took possession of the S&S Lounge until October 1990, the Bretts and Lakeshore repeatedly breached numerous obligations of -6- the Management Agreement. The Bretts' rent for the S&S Lounge fell two to four months in arrears. They admittedly failed to timely pay state sales tax which led to assessments against the Stevensons for unpaid back taxes and penalties. The Bretts also failed to file numerous governmental reports relating to sales taxes, workers' compensation insurance, unemployment insurance and personal property taxes. Finally, in October 1990, due to these alleged breaches of the Management Agreement and to protect the S&S Lounge's liquor permit from lapsing, XAM terminated the Purchase Agreement and Management Agreement and resumed control of the S&S Lounge by locking the Bretts out. The Management Agreement (q16) provided a right of immediate repossession for default. The Bretts and Lakeshore had previously surrendered their option to purchase the beverage store when Mr. Stevenson confronted Mr. Brett about the past due rent. Shortly after XAM resumed control of the S&S Lounge and as part of the sale of the beverage store to another purchaser, Mr. Stevenson requested that the Liquor Department again inspect the S&S Lounge premises to facilitate transfer of liquor permits. For the first time, Stevenson was advised that access between the S&S Lounge and the adjoining beverage store needed to be eliminated in order for the liquor permit to transfer. In response, Mr. Stevenson put a couple screws in the door thereby eliminating the access way and the license transferred to the beverage store purchasers without incident. XAM eventually sold the S&S Lounge in -7- 1995 for $140,000 or $110,000 less than provided for in the 1988 Purchase Agreement with Lakeshore. Lakeshore brought a breach of contract action arising from its failed attempt to purchase the S&S Lounge from XAM and its owners claiming that it was entitled to a refund of moneys paid as part of the Purchase Agreement and related Management Agreement terminated in October 1990. XAM counterclaimed for damages arising from Lakeshore's breach of those agreements. The case was tried to the court on August 27, 1997 without a jury. On September 30, 1997, the trial court issued its judgment including Finding[s] of Fact and Conclusion[s] of Law. The court found that the conditions precedent to Lakeshore's obligations were not met: the liquor permit did not transfer and the landlord did not consent to the assignment of lease. Judgment was entered for Lakeshore for $79,000, representing a refund of their down payment and payments on their promissory notes after credit of $18,000 to XAM. The court rendered judgment in favor of Lakeshore on XAM's counterclaim. A timely notice of appeal was filed. We will address defendants' assignments of error in the order presented. -8- I. THE TRIAL COURT'S FINDING THAT THE LEASE CONTINGENCY CONTAINED IN THE PURCHASE AGREEMENT WAS NOT SATISFIED BY A WRITTEN CONSENT TO AN ASSIGNMENT OF THE LEASE SIGNED BY THE SELLER'S LANDLORD WAS ERRONEOUS, PREJUDICIAL TO DEFENDANT XAM, INC. AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN WRITTEN APPROVAL WAS PROVIDED BOTH TO PLAINTIFF AND THE OHIO DEPARTMENT OF LIQUOR CONTROL. Defendant XAM contends the trial court's finding that the assignment of lease contingency was not satisfied as a condition precedent to the closing is contrary to law and against the manifest weight of the evidence. We agree. Performance under the Purchase Agreement (q7(B)) was conditioned upon: The approval of the Lessor of Seller's [XAM, Inc.] premises to an assignment of [XAM, Inc.'s] existing lease or original letting to Purchaser. However, XAM's testimony as well as its exhibits indisputably demonstrated that the landlord, Aldersyde Partners, Ltd., did give approval to an assignment of the lease to Lakeshore. It should be noted that the actual assignment of the lease to Lakeshore was not to take place under the terms of the Purchase Agreement (q6) until the closing at which time a Bill of Sale (Ex. H) would encompass the assigned Leasehold interest and all other transferred contracts ***. The trial court was in error in holding that [a] lease was never assigned or placed into the name of the plaintiff corporation [Lakeshore]. (Finding of Fact (10)). The Purchase Agreement stated that the assignment was not required until the closing when the liquor permit transferred. What was -9- required prior to the closing was the landlord (Aldersyde Partners, Ltd.'s) approval of the assignment. In construing the contracts between the parties, our goal is to give effect to the intention of the parties as expressed in their agreements. Harry S. Peterson Co. v. Detzel Constr. (March 13, 1998), Hamilton App. No. C-961125, unreported, the court stated the principles we must apply: *** In the construction of any written agreement, a court's primary objective is to ascertain and give effect to the intent of the parties, which can be found in the language that they chose to employ. Foster Wheeler Enviresponse,Inc. v. Franklin Cty. Convention Facilities Auth. (1997), 78 Ohio St.3d 353, 361, 678 N.E.2d 519, 526. The interpretation of a written agreement is, in the first instance, a matter of law for the court. If it is clear and unambiguous, the court need not go beyond the plain language of the agreement to determine the rights and obligations of the parties. Aultman Hosp. Assn. v. Community Mut. Ins. Co. (1989), 46 Ohio St.3d 51, 53, 544 N.E.2d 920, 923; Seringetti Constr. Co. v. Cincinnati (1988), 51 Ohio App.3d 1, 4-5, 553 N.E. 2d 1371, 1375. It must give effect to the contract's express terms in determining the rights and obligations of the parties and cannot, in effect, create a new contract by finding an intent not expressed in the clear language used by the parties. Shifrin v. Forest City Ent., Inc. (1992), 64 Ohio St.3d 635, 638, 597 N.E.2d 499, 501; Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 246, 374 N.E.2d 146, 150. The record clearly reflects that Aldersyde's approval of the assignment was obtained and therefore this contingency was satisfied. James Brett, President of Lakeshore, testified that the Liquor Department required Lakeshore to provide the department with a consent to the assignment of lease as part of the liquor permit -10- transfer process. A fully executed consent to assignment by Aldersyde Partners was forwarded to the Liquor Department in August 1989. Plaintiffs' Exhibit B, comprising documents obtained from the Liquor Department, contains a copy of the fully executed Assignment or Sublease of Tenancy Rights provided to it by Lakeshore. Importantly, the form shows that tenancy rights were assigned to Lakeshore and that the property owner, Aldersyde Partners Ltd., specifically consented to the lease assignment, dated August 8, 1989. Undisputed evidence of approval of a lease assignment is also found in defendants' Exhibit 8, stipulated to by the parties and admitted in evidence which comprises a cover letter, dated June 26, 1989, and in the amended lease provided to James Brett by Aldersyde Partners, Ltd. adding Lakeshore and the Bretts to the lease for the S&S Lounge premises. This amended lease was introduced as defendants' Exhibit 5, and specifically lists both the Stevensons and the Bretts as the lessees of the subject property. This lease was dated July of 1988 and was signed by all of the lessees. Accordingly, the contingency requiring approval of the lease assignment by Aldersyde Partners was clearly satisfied. Therefore, the trial court's Findings of Fact No. 3 and 10 are contrary to the manifest weight of the evidence. Its conclusions of law based thereon are erroneous. Defendants' Assignment of Error I is sustained. II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN RULING THAT PLAINTIFFS EXERCISED THEIR BEST EFFORTS TO DILIGENTLY WORK TO CAUSE THE TRANSFER OF THE LIQUOR PERMIT AND THAT THEIR -11- NON-PERFORMANCE [OF THE PURCHASE AGREEMENT] IS EXCUSED WHEN PERFORMANCE IS MADE IMPOSSIBLE BY LAW WHEN THE RECORD CLEARLY ESTABLISHED THAT A MINOR MODIFICATION TO THE PREMISES WAS ALL THAT WAS REQUIRED AND PLAINTIFF REFUSED, FAILED OR OTHERWISE NEGLECTED TO DO SO, AND IN FACT TOOK NO STEPS TO BRING THE PREMISES INTO COMPLIANCE WITH THE STATE LIQUOR LAWS. Defendant XAM further argues that the trial court erred in finding that the liquor permit transfer contingency (Purchase Agreement q7(A)) could not be fulfilled. We find that the trial court erred to XAM's prejudice in so holding due to legal impediment and that such impediment excused Lakeshore's performance. (Conclusions of Law Nos. 1 and 6). Rather, the manifest weight of the evidence clearly demonstrated that Lakeshore failed to fulfill its contractual obligations to diligently pursue transfer of the liquor permit and, thus, breached the contract. As part of its obligations under the Purchase Agreement (q10(G)), Lakeshore agreed to undertake and bear all expenses of transferring the Permit and [to] use its best efforts and diligently pursue any and all action necessary to effect a prompt transfer of the Permit. Lakeshore promised to cause to be done, all such other acts and things as may be necessary to carry out the provisions of this Agreement. (q24). Finally, as part of the Management Agreement under which Lakeshore operated the S&S Lounge for 27 months, Lakeshore agreed to operate the bar in compliance with the rules and regulations issued and promulgated by the Department of Liquor Control of the State of Ohio, which rules and regulations are pertinent to the sale of alcoholic beverages within the subject premises. (Management Agreement q2(e)). The record -12- demonstrates that Lakeshore failed to meet its obligations under these contracts and never accomplished transfer of the liquor permit. The evidence shows that Lakeshore failed to use its best efforts and diligence to obtain a transfer of the liquor license. The Bretts waited more than 50 days after executing the Purchase Agreement to pay $100 to commence transfer of the permit even though the Purchase Agreement originally called for the permit contingency to be completed within 90 days. The Liquor Department required the Bretts' fingerprints, but none were provided until February or March 1989. The Liquor Department further required consent to an assignment of the S&S Lounge premises lease, which the purchasers did not provide until August 1989, a full year after entering into the Purchase Agreement. Lakeshore never retained counsel to assist in the liquor permit transfer process. In fact, Lakeshore dismissed the agent whom it selected to process the transfer application and pursued the transfer pro se. Throughout this period, Mr. Brett never diligently attempted to ascertain why the permit was not transferring or what he could do to expedite or facilitate the transfer. The evidence also disclosed that Lakeshore's own operation of the S&S Lounge created obstacles to the license transfer. Mr. Brett acknowledged at trial that the liquor permit would not transfer if state sales taxes were not paid. Mr. Brett further admitted that those taxes were not timely paid during his 27 month operation of the S&S Lounge. As a result, the Stevensons were -13- eventually assessed for sales tax arrearages which Lakeshore allowed to accumulate. The record reveals that Lakeshore first knew of a possible problem with the S&S Lounge liquor permit transfer in October 1989, fifteen months after executing the Purchase Agreement. According to Mr. Brett, an unidentified clerk at the Liquor Department advised him that she did not believe the S&S Lounge could share access to the adjoining beverage store. This problem, on which the trial court based its conclusion that a legal impediment existed, was never communicated to XAM. The Liquor Department never cited the S&S Lounge or XAM for violating any departmental regulation and no document exists in the Liquor Department's files indicating that the liquor permit could not transfer during 1988, 1989 or 1990. On the other hand, according to XAM's evidence, resolving the legal impediment to the liquor license transfer was inexpensive and easily accomplished. In October or November 1990, after taking the lounge back and upon learning that the S&S Lounge and the adjoining liquor store could not share open access, Mr. Stevenson eliminated the access way by placing a couple of screws in the door between the two establishments. The liquor store license subsequently transferred to the new buyer without incident. The access was later sealed off by drywall. The ease with which Mr. Stevenson satisfied the Liquor Department's concerns about shared access between the S&S Lounge and the adjoining beverage store demonstrated that Lakeshore failed to use its best efforts and diligence to effect transfer of -14- the liquor permit and that the liquor license transfer was not a legal impossibility. Accordingly, we find that the trial court erred as a matter of law in concluding that the liquor permit contingency could not be satisfied and that plaintiffs were excused from performance under the Purchase Agreement. Furthermore, in addition to agreeing to use best efforts and to diligently pursue transfer of the liquor permit, Lakeshore agreed under the Management Agreement to operate the S&S Lounge in compliance with rules and regulations of the Liquor Department. Mr. Brett repeatedly testified that during the time he operated the S&S Lounge he was advised by the Liquor Department that the access way between the S&S Lounge and the adjoining bar was a problem and that he couldn't do that. Despite his knowledge and his agreement to operate the bar in compliance with applicable law, he took no steps whatsoever to bring the bar's operation into compliance. Lakeshore knew of the problem, had a contractual obligation to remedy that problem so as to operate the bar in compliance with the laws, but failed to take action to remedy the problem. Such inaction under the circumstances not only demonstrated a lack of best efforts and diligent pursuit of the liquor license transfer, but also operated as a breach of Lakeshore's duties under the Management Agreement. Ohio law has long provided that when a party enters into a contract knowing that permission of governmental officers will be required during the course of performing the contract, it is that party's duty to obtain the permissions necessary for performance. -15- In Security Sewage Equipment Co. v. McFerren (1967), 11 Ohio App.2d 229, paragraph two of the syllabus the court stated: Where a person enters into a contract knowing that permission of governmental officers will be required during the course of performance, it is his duty to obtain the permit so that he can perform. The risk of inability to obtain it is on him, and the fact that such permission is conditioned on a performance that is more burdensome, expensive or difficult than would be ordinarily expected but which might reasonably have been contemplated does not constitute an excuse for nonperformance. Both the testimony and exhibits introduced at trial demonstrate that Lakeshore failed to meet its contractual obligations to operate the lounge in compliance with the laws and regulations of the State of Ohio. The trial court's ruling that the liquor permit could not transfer due to [a] legal impediment (Conclusion of Law 6) was, thus, contrary to law. The Liquor Department never denied Lakeshore's permit transfer application. Neither documentation nor testimony from the Liquor Department was introduced indicating that the S&S Lounge's license could not have transferred in 1988, 1989 or 1990. In fact, the evidence showed that the transfer of the liquor license could easily have been obtained with minimal effort. Even allowing for every reasonable presumption in favor of the lower court's judgment and findings of fact, Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, 226, the court's conclusion that the liquor permit could not legally transfer was incorrect as a matter of law. Defendants' Assignment of Error II is sustained. -16- III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING FOR PLAINTIFFS ON DEFENDANT'S COUNTERCLAIM WHERE EVIDENCE ESTABLISHED THAT PLAINTIFFS BREACHED THE PURCHASE AGREEMENT AND DAMAGES FLOWED DIRECTLY THEREFROM. To prevail on its counterclaim for breach of contract against Lakeshore, XAM must establish (1) the existence of a binding contract; (2) XAM's performance of that contract; (3) that Lakeshore failed to fulfill its contractual obligations without legal excuse; and (4) that XAM suffered damages as a result of the breach. See National City Bank v. Erskine & Sons (1953), 158 Ohio St. 450; American Sales, Inc. v. Boffo (1991), 71 Ohio App.3d 168. We find that the court erred in denying XAM's counterclaim and in failing to award damages, where the manifest weight of evidence and applicable law demonstrated that Lakeshore breached the Purchase Agreement and Management Agreement and damages flowed directly from that breach. The trial court found that a valid contract existed between XAM and Lakeshore. The record reflects that XAM fulfilled its obligations under the contracts and the trial court made no findings to the contrary. Contrary to the trial court's finding, the parties satisfied the lease assignment contingency in the Purchase Agreement as above stated in discussion of Assignment of Error I. Further, as has been discussed in Assignment of Error II above, Lakeshore failed to use its best efforts and diligently pursue transfer of the liquor permit. Lakeshore had agreed to operate the bar in compliance with applicable regulations yet took no action to -17- correct a possible violation of those laws when it was advised of the problem by the Liquor Department. Similarly, upon learning of a potential problem with transfer of the liquor permit, Lakeshore failed to take steps to correct the situation so that the license could transfer. Mr. Stevenson's testimony demonstrated that only minimal efforts were necessary to effect transfer of the liquor permit. Impossibility of performance is an affirmative defense to a breach of contract and occurs where after the contract is entered into, an unforeseen event arises rendering impossible the performance of one of the contracting parties. Truetried Serv. Co. v. Hager (1997), 118 Ohio App.3d 78, 87; Cleveland Indus. Square, Inc. v. City of Cleveland (March 9, 1995), Cuyahoga App. No. 67068, unreported at 7-8, citing Calamari and Perillo, Contract, (1977), 476, Section 13. No impossibility existed in the instant case. We find Lakeshore breached both the Purchase Agreement and Management Agreement with resulting damage to XAM. Upon demonstration of a breach of contract, damages should place the injured party in as good a position as it would have been in absent the breach. See F. Enterprises, Inc. v. Kentucky Fried Chicken Corp. (1976), 47 Ohio St.2d 154, 159; Homes by Calkins, Inc. v. Fisher (1993), 92 Ohio App.3d 262. Generally, a party injured by a breach of contract is entitled to his expectation interest, or his interest in having the benefit of his bargain by being put in as good a position as he would have been in had the contract been performed. Restatement of the Law 2d, Contracts -18- (1981), 102-103, Section 344. Lakeshore agreed to pay $250,000 for the S&S Lounge by the terms of the Purchase Agreement. According to XAM's evidence, when it sold the bar in 1995, five years after having taken it back from Lakeshore and making numerous repairs made necessary by Lakeshore's occupancy, it obtained only $140,000 for the business, a loss of $110,000 to XAM. In addition to the loss incurred when the S&S Lounge was sold in 1995, XAM incurred various other expenses flowing directly from the breach of the Purchase Agreement. When XAM resumed control of the bar in October 1990, it was in shambles. Mr. Stevenson claimed he could not open the S&S Lounge to the public for nearly a month after the retaking while he made numerous repairs. XAM expended $22,864.54 for repairs to the S&S Lounge. Additionally, Lakeshore stipulated that XAM paid $18,399.89 to Aldersyde Partners, Ltd. and various governmental agencies for past due rent, various unpaid fees, taxes and premiums. (R. at 253, Conclusion of Law at q13). Both the testimony and exhibits introduced at trial demonstrate that XAM: (1) entered into a binding contract with Lakeshore; (2) performed its obligations under that contract; (3) that Lakeshore failed to fulfill its contractual obligations without legal excuse; and (4) that XAM suffered damages as a result of the breach. Defendants' Assignment of Error III is sustained. -19- Judgment for Lakeshore is reversed and judgment entered for XAM on its counterclaim. The case is remanded for determination of XAM's damages. -20- It is ordered that appellants recover of appellees their 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 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. BLACKMON, A.J., and SPELLACY, J., CONCUR. JAMES M. PORTER 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 .