COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
 
                      COUNTY OF CUYAHOGA
 
                           NO. 84182
 
 
JAY R. MARSHALL               :
                              :      ACCELERATED DOCKET
          Plaintiff-Appellant :
                              :         JOURNAL ENTRY
                              :
    vs.                       :              and
                              :
                              :            OPINION
ENVIROMATRIX, INC.            :
                              :
          Defendant-Appellee :
 
 
 
DATE OF ANNOUNCEMENT
OF DECISION:                      October 28, 2004
 
CHARACTER OF PROCEEDING:          Civil appeal from
                                  Common Pleas Court
                                  Case No. CV-468702
 
JUDGMENT:                         REVERSED AND REMANDED
 
DATE OF JOURNALIZATION:           _______________________
 
APPEARANCES:
 
For Plaintiff-Appellant:          CHRISTOPHER J. MALLIN
                                  367 North Cleveland Avenue
                                  Mogadore, Ohio 44260-2120
 
 
For Defendant-Appellee:           KEITH E. BLAHA
                                  304 Plaza West Building
                                  20220 Center Ridge Road
                                  Rocky River, Ohio 44116
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               -2-
 
ANTHONY O. CALABRESE, JR., J.:
 
    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.
 
 
 
 
    1The definition of "subordinate" does not provide for the
exclusion of that which is in a lower position.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                -3-
 
     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.
 
 
 
                               ___________________________
                                 ANTHONY O. CALABRESE, JR.
                                           JUDGE
 
ANNE L. KILBANE, P.J.,        and
 
JAMES J. SWEENEY, J.,     CONCUR.
 
 
 
 
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. 22. 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
clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section
2(A)(1).
 
.