Opinion
No. 84182.
DATE OF ANNOUNCEMENT OF DECISION: October 28, 2004.
Civil appeal from Common Pleas Court Case No. CV-468702.
Reversed and remanded.
Christopher J. Mallin, 367 North Cleveland Avenue, Mogadore, Ohio 44260-2120, for Plaintiff-Appellant.
Keith E. Blaha, 304 Plaza West Building, 20220 Center Ridge Road, Rocky River, Ohio 44116, for Defendant-Appellee.
ACCELERATED DOCKET JOURNAL ENTRY and OPINION
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.
The definition of "subordinate" does not provide for the exclusion of that which is in a lower position.
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.
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.
Kilbane, P.J., and Sweeney, J., Concur.