Breach of settlement agreement

Ohio Appellate Reports

Unpublished

W.O.M. v. WILLYS-OVERLAND MOTORS, Unpublished Decision
(12-29-2006) 2006-Ohio-6997 W.O.M., Ltd., Appellee v.
Willys-Overland Motors, Inc. and Gregory Roe, Appellants.
No. L-05-1201. Court of Appeals of Ohio, Sixth District,
Lucas County. Decided: December 29, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Court of Appeals No. L-05-1201.

Trial Court No. CI-00-1647.

R. Michael Frank and Catherine H. Killam, for appellee.

Teresa L. Grigsby and William R. Lindsley, Jr., for
appellants.

JUDGE MARK L. PIETRYKOWSKI, J., ARLENE SINGER, P.J.,
CONCUR.

DECISION AND JUDGMENT ENTRY

SINGER, P.J.

This is an appeal from a summary judgment on a
breach of settlement agreement and the subsequent
determination of damages in the Lucas County Court of
Common Pleas. For reasons that follow, we affirm.

During World War II, Willys-Overland Motors
Company’s Toledo assembly plant built hundreds of thousands
of military Jeeps for the war effort. Following the war,
the company continued to produce civilian Jeeps (“C-Js”).
Until the end of the century, under various corporate
owners, the plant continued to produce the brand. The Jeep
is now a product of the DaimlerChrysler Corporation.

In the mid 1970’s, appellant Gregory Roe began
a business specializing in selling Jeep parts to collectors
and restorers. Roe incorporated this business as
Willys-Overland Motors, Inc., the other appellant herein.

In 1997, Roe negotiated the sale of the assets
of the business to appellee W.O.M., Ltd. The transaction
was memorialized in an installment purchase agreement
wherein appellee agreed to pay appellants two percent of
the gross profit against a $25,000 purchase price for fixed
assets. This payment was to continue after payment for the
fixed assets for an additional 60 months as payment for
good will. Additionally, appellee was to pay to appellants
ten percent of the “adjusted profit” for two years and 15
percent for an additional three years or until the amount
of $300,000 had been paid. Appellants’ inventory was to
remain in their hands and be sold on consignment and billed
to appellee at appellants’ cost when sold. The agreement
also provided for a mutual noncompete covenant. A separate
property lease on a portion of appellants’ business
location completed the deal.

{5} The business relationship between the parties
did not go well. On February 25, 2000, appellee sued
appellants, alleging, inter alia, that appellants
misrepresented the content of the available inventory and
the legitimacy of the use of the trade name
“Willys-Overland” which appellee asserted was a federally
registered trademark belonging to DaimlerChrysler.

Prior to appellants’ response to appellee’s
complaint, the parties agreed to submit the case to dispute
resolution. The parties retained retired Judge Richard
McQuade to act as mediator.

On June 8, 2000, Judge McQuade conducted a
mediation at the offices of appellants’ then counsel. All
parties were present and represented by counsel. At the end
of this session, Judge McQuade outlined the conclusions of
the meeting in a handwritten document captioned
“settlement.” Item one in this document was “purchase price
$187,500 10% down;” item two: “term 5 years;” item 3:
“interest 9 1/2% fixed;” item four: “security agreement OK
(by Jay [Margolies appellee’s president].” Item six stated
“all assets of Willys-Overland Company `Jeep business.'”
Item seven stated “cooperation of [appellants] in defense
of trademarks, tradenames, & assign same to [appellee] or
designee.” The remainder of the document dealt with removal
of the parts from appellants’ property, nonperformance
penalties, ownership of the proceeds of an insurance claim
on a forklift, and tax consequences. The document was
signed by counsel for both parties.

On June 4, 2000, appellants’ counsel sent
appellee’s counsel a draft “asset purchase agreement.”
Accompanying this was a cover letter requesting that
appellee’s counsel prepare “the trademark assignment and
the residual noncompete agreement.” Appellants’ counsel
volunteered to prepare the other schedules, “* * * except
for the list of assets, which I am sure we will have to
coordinate with our respective clients in order to get a
proper listing.”

In a later filed affidavit, appellee’s counsel
averred that after receipt of this letter, he
unsuccessfully attempted to schedule a time to compile a
list of assets to be incorporated into the asset purchase
agreement. Eventually, appellee’s counsel wrote appellants’
counsel, advising him that due to appellants’ refusal to
cooperate, appellee would consent to no more extensions in
the underlying litigation. According to appellee’s counsel,
he received no formal reply from appellants’ counsel, but
was advised by telephone that appellants had acquired new
counsel.

On September 7, 2000, new counsel entered an
appearance on behalf of appellants. According to the
affidavit from appellee’s counsel, shortly thereafter, he
expressly inquired of new counsel as to whether appellants
intended to honor the settlement agreement. New counsel
responded, according to the affidavit, that appellants did
not intend to go forward with the settlement. On September
21, 2000, appellants answered the original complaint,
denying appellee’s allegations and interposing
counterclaims of breach of the original installment
purchase agreement, breach of the lease, fraud and
conversion. Appellee responded with a motion for summary
judgment, enforcing the settlement and dismissing
appellants’ counterclaims. Appellants opposed the motion.

After some delay, the trial court concluded
that there was no genuine question of material fact
concerning the evidence submitted, that the parties had
reached a settlement and that appellants had breached the
settlement. Further, the court concluded, the underlying
prior agreements in the suit had been merged into the
settlement, extinguishing appellants’ counterclaims. The
matter then proceeded to a bench trial on damages and
appellee’s motion for attorney fees and expenses. The court
eventually entered judgment for appellee in the amount of
$202,000 in damages resulting from the breach, $80,000 for
prejudgment interest, $97,152 in attorney fees, $29,716 for
expert fees and $3,035.70 for costs and expenses.

From this judgment, appellants now bring this
appeal, setting forth the following six assignments of
error:

1. The Trial Court erred in finding that the
parties reached a binding settlement agreement without
first conducting an evidentiary hearing to resolve disputed
questions of fact.

2. Assuming arguendo that the Trial Court
properly found the existence of a binding settlement
agreement, the Trial Court erred in holding that Defendants
breached the purported agreement, as Defendants had
substantially performed the obligations thereunder, and
Plaintiff had not.

3. The Trial Court’s award of lost profits
damages for the alleged breach of the settlement agreement
is invalid because Plaintiff failed to mitigate and
minimize its purported losses.

4. The Trial Court’s award of lost
profit-damages for alleged breach of the settlement
agreement is against the manifest weight of the evidence,
is not supported by non-speculative, certain evidence, and
constitutes an abuse of discretion.

5. The Trial Court erred as a matter of law
and fact in awarding Plaintiff attorneys fees, other
litigation expenses and prejudgment interest.

6. The Trial Court erred as a matter of law
and fact in awarding judgment against Defendant Gregory
Roe, personally.”

I. The Settlement Agreement

In their first assignment of error,
appellants assert that the trial court erred in finding a
binding settlement without a hearing. Citing Rulli v. Fan
Company, 79 Ohio St.3d 374, 1997-Ohio-380, syllabus,
appellants insist that when the terms or existence of a
settlement agreement is at issue, a court is obligated to
conduct an evidentiary hearing before enforcing the
agreement.

The present matter is distinguished from
Rulli procedurally. Rulli was before the trial court on a
factual question of the existence of a settlement
agreement. This matter arose in the context of a motion for
summary judgment. A grant of summary judgment is precluded
if there is any genuine issue of a material fact. Civ.R.
56; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio
St.2d 64, 67. Findings of fact demand an evidentiary
hearing. On a motion for summary judgment, if a factual
finding is required, the motion must be denied.

In a summary judgment proceeding, the party
advancing the motion must specifically delineate the basis
upon which the motion is brought, Mitseff v. Wheeler
(1988), 38 Ohio St.3d 112, syllabus, and identify those
portions of the record that demonstrate the absence of a
genuine issue of material fact. A “material” fact is one
which would affect the outcome of the suit under the
applicable substantive law. Russell v. Interim Personnel,
Inc. (1999), 135 Ohio App.3d 301, 304; Needham v. Provident
Bank (1996), 110 Ohio App.3d 817, 826, citing Anderson v.
Liberty Lobby, Inc. (1986), 477 U.S. 242, 248. Both parties
must support their positions with evidentiary material which
conform to Civ.R. 56(E).

In practice, a proponent of a motion for
summary judgment will submit his or her motion and
memorandum in support with affidavits and supporting
documents representing what the party asserts are the
undisputed facts. If the materials sufficiently support the
proponents’ position, the opponent must come forward with
supporting documents which demonstrate that there is a
genuine issue of material fact. Id.; Riley v. Montgomery
(1984), 11 Ohio St.3d 75, 79. If the facts are undisputed,
the court must determine whether they entitle the movant to
judgment as a matter of law. Civ.R. 56(C). Appellate courts
employ the same standard. Lorain Natl. Bank v. Saratoga
Apts. (1989), 61 Ohio App.3d 127, 129.

Here, appellee moved for summary judgment,
asserting that there was a settlement agreement and that
appellants had breached it. In support, appellee submitted
the affidavit of the mediator, Judge McQuade, who averred
that, after prolonged negotiations, the parties reached an
agreement, that the principals of all parties, “* * *
acknowledged that they understood the terms of the agreement
and accepted and agreed to it. In my opinion, the case was
settled.” Attached to the mediator’s affidavit was a copy
of the terms of the agreement as written by him and signed
by counsel for both parties.

Appellants’ response dwells at length on
events preceding the mediation and after the mediation, but
contains nothing which would directly contest the affidavit
of the mediator in a material way. Appellant Gregory Roe’s
affidavit states that the “settlement” failed to include
his unwillingness to settle unless he prevailed on an
insurance claim, but fails to suggest that this reservation
was ever mentioned during the mediation. Appellant Roe also
avers that he did not, nor was he asked to sign the
settlement documents, but does not contradict the
mediator’s averment that appellant Roe’s counsel signed with
Roe’s agreement and acceptance.

On these presentments, we must concur with
the trial court that there exists no material question of
fact as to whether the “settlement” document reflected the
negotiated agreement of the parties. Accordingly, no
hearing on this matter was required. Appellants’ first
assignment of error is not well-taken.

II. Breach

In their second assignment of error,
appellants maintain that the trial court erred in finding a
breach of the settlement agreement. Appellants insist that
they substantially performed their obligations under the
agreement while appellee did not.

Citing Doner v. Snapp (1994), 98 Ohio App.3d
597, 600, appellants delineate the elements necessary to
prevail in a breach of contract claim as 1) existence of a
contract, 2) performance by plaintiff, 3) breach by
defendant, and 4) damages. Appellants argue that appellee
made no showing that it tendered performance or
substantially performed that which was required of it under
the settlement: specifically, appellee never tendered the
ten percent down payment per the settlement document.
Moreover, appellants insist, they did substantially perform
when they turned over equipment and customer lists of the
Jeep business pursuant to the original installment purchase
agreement.

With respect to appellants’ performance, the
trial court properly found that any residual issues from
the original installment purchase agreement, “* * * merged
in the settlement and are thereby extinguished.” As a
result, any partial performance by appellants under the
original agreement holds no relevance with respect to the
settlement agreement.

Concerning a requirement that appellee tender
performance to show breach, we first observe that the issue
in the Doner case was damages, not performance. Moreover,
appellants omit the Doner caveat that the elements
enumerated there, “[generally, * * * must be present * * *”
to prove a breach. As appellee has repeatedly pointed out,
no tender of performance is required when an anticipatory
repudiation of the contract occurs. See DeMuesy v.
Haimbaugh (Dec. 31, 1991), 10th Dist. No. 91AP-212; 2
Restatement of the Law 2d, Contracts (1989), 286, Section
253(2).

An anticipatory breach of a contract occurs
when there is a repudiation of the promisor’s duty under
the contract prior to the time fixed for performance.
Daniel E. Terreri & Sons v. Bd. Of Mahoning Cty. Commrs.,
152 Ohio App.3d 95, 105, 2003-Ohio-1227, § 44. An
anticipatory repudiation occurs when a party declares he or
she will not perform the terms of the contract. Id. at 106,
2003-Ohio-1227, § 46; 2 Restatement, supra, at 272,
Section 250(A). When an anticipatory repudiation occurs,
the nonbreaching party may treat the repudiation as a breach
and may immediately seek remedy. Farmers Comm. v. Burks
(1998), 130 Ohio App.3d 158, 172; 23 Lord, Williston on
Contracts (2003), 559, Section 63:33. Here, the affidavit
of appellee’s counsel, averring that only a few weeks after
the mediation appellants’ counsel informed him that
appellants, “* * * had no intention of going forward with
the settlement agreement” is unrefuted. A fair reading of
this statement is that appellants declared their intention
not to perform the terms of the settlement agreement.
Consequently, the trial court did not err in declaring a
breach of the settlement agreement as a matter of law.
Accordingly, appellants’ second assignment of error is not
well-taken.

III. Damages

In their third and fourth assignments of
error, appellants assert that the trial court’s damage
award was erroneous because the court failed to hold
appellee to its duty to mitigate losses and/or because the
evidence of damage was speculative and against the manifest
weight of the evidence.

As with any breach of contract, the
nonbreaching party has a duty to mitigate his or her
damages. Farmers Comm. Co., supra, at 173; 3 Restatement of
Law 2d Contracts (1981), 126, Section 350. Except when
reasonable efforts to avoid loss are unsuccessful, “* * *
damages are not recoverable for loss that the injured party
could have avoided without undue risk, burden or
humiliation.” Id.

{33} In this matter, according to appellants,
appellee failed to mitigate his loss because it elected to
seek damages rather than specific performance and because
it rejected appellants’ offer after the breach to convey
the disputed inventory for the agreed purchase price.

When an anticipatory repudiation of a
contract has occurred, the nonbreaching party may elect to
resort to any remedy available for the breach. The option
belongs to the aggrieved party. The breaching party has no
say. South Main Akron v. Lynn Realty (1951), 62 Ohio Law
Abs. 103, 107; 13 Lord, Williston on Contracts (4th Ed.
2000), 666, Section 39:37; 2 Restatement of the Law 2d,
Contracts (1981), 286, Section 253. Thus, if appellants’
only assertion is that appellee failed to mitigate damages
by seeking monetary damages, that position is without
support in law.

The same is true of the purported offer to
convey the auto parts at issue for the purchase price.
Clearly, appellee has elected to treat appellants’
repudiation as a total breach of the contract. Having made
that election, it is under no obligation to revive any
portion of the contract.

Additionally, as will be discussed in the
next section, a substantial portion of the value of this
agreement resided in the fact that the parts at issue were
genuine original Jeep parts, not easily replaced, if
replaceable at all. To mitigate damages for the loss of
genuine original Jeep parts, it would seem incumbent on
appellants to at least allege that replacement parts were
available in the market place. Appellants have not done
this. Accordingly, appellants’ third assignment of error is
not well-taken.

Appellants also maintain that the measure of
lost profits damages awarded by the court, is speculative
and, therefore, against the manifest weight of the
evidence.

Lost profits may be recovered as damages from
a breach of contract if 1) such profits were within the
contemplation of the parties, 2) lost profits were the
probable result of the breach, and 3) profits are not
remote or speculative, but may be shown with reasonable
certainty. Charles R. Combs Trucking Co. v. International
Harvester, Inc. (1984), 12 Ohio St.3d 241, paragraph two of
the syllabus.

To establish the value of the lost profits
resulting from appellee’s breach of the settlement
agreement, appellee employed the services of Garth M.
Tebay, a principal in Tebay Mosley Associates. Tebay is a
certified public accountant and certified valuation analyst.

Beginning with the 1997 inventory of
consignment parts that appellants provided to appellee, the
expert tracked sales of each part from the date of the
parties’ original agreement until appellee vacated
appellants’ premises in 2000. With adjustments, Tebay used
this data to determine a per part inventory level for when
the settlement agreement fell apart. The valuator also used
appellee’s sales data to determine the growth rate
established for the period appellee operated the business.
He then applied the growth rate on a part by part basis to
estimate lost sales and lost profits from the date the suit
was initiated until the damages trial. Adjusting for
expenses of which appellee was relieved and discounting the
result to present value at the time of the settlement
agreement, Tebay testified at trial that appellee’s lost
profits resulting from the breach amounted to $202,000.

Tebay testified, and the trial court
expressly found, that the methodology utilized was in
conformity with accepted standards of valuation. Indeed, it
is not the methodology of the expert that appellants
attack. Rather, appellants maintain, the underlying
inventory and cost figures were too speculative.

After the mediation, appellants blocked
appellee’s access to the automotive parts at issue. To
establish a baseline inventory, the valuation expert worked
from a 1997 inventory appellants had provided to appellee.
From this inventory, he deducted part sales by appellee. In
several instances, the valuator found sales of parts that
were listed as zero in the original inventory. The expert
testified that, when this occurred, he would consult with
appellee’s employees and adjust the inventory in accordance
with their recollections of what actually existed. On cross
examination, the expert conceded that in a few instances,
the adjusted inventory count was erroneous, but denied that
the variation would have a significant effect on the result.
On appeal, appellee characterizes these few errors as, “* *
* too minor given that there were a total of 652 different
parts in the inventory, 45,131 separate units.

Appellee’s characterization obtains some
resonance from Tebay’s report that approximately 70 percent
of the lost profits reported came from a single item: a
CJ-7 “tub.” The CJ-7 tub is actually a welded assembly of
more than a dozen parts that form the body of a now
discontinued model of Jeep. One of the components of the tub
is a side panel with the raised word “Jeep” stamped in the
middle.[fn1] The expert’s inventory showed parts to make
100 CJ-7 tubs at a projected sale price of $3,500 per tub.

At trial, appellant Roe testified that there
were not enough parts to make even one tub. Appellee’s
president, Jay Margolies, however, testified that a tub
constructed with original Jeep side panels could be sold as
an original tub even though the other parts used were not
original. According to Margolies, there were sufficient side
panels in inventory to produce 100 tubs. This testimony is
uncontradicted. Indeed, appellants offered no valuation
testimony or alternative inventory count, even though the
parts at issue were in appellants’ possession.

Appellants also challenged the cost figure
that the expert attributed to the CJ-7 tub for parts
purchased from other suppliers to build the tubs. The $500
cost used by the expert in his report was too low,
according to appellants, thus increasing the loss from the
sale attributable to appellants. A more realistic figure,
appellants insisted was $841.61 per unit. Tebay conceded
the point and recomputed his figures using an outside
supplier cost of $804.61.[fn2] This recomputation resulted
in the $202,000 damage figure the trial court found.

Appellants also complain that the projected
$3,500 sales cost for a CJ-7 tub was too speculative, given
the historic data for CJ-7 tub sales recorded no sale at as
much as that price. According to appellants, in fact, the
data shows the price of tubs declining.

On redirect examination, appellee’s valuation
expert testified that he accounted for the lower price of
two tubs sold after a high price purchase of $3,300, as
being the result of the later sales having been made up of
tubs composed entirely of nonoriginal part components.
Reasonably, the expert opined, these less desirable units
commanded a lower price. The expert stood by his projection
that, had appellee been able to sell tubs made with
appellants’ original equipment parts, a price of $3,500 per
unit was reasonable.

To recover lost profits, the existence and
amount of such profits must be shown with reasonable
certainty. Gahanna v. Eastgate Properties, Inc. (1988), 36
Ohio St.3d 65, syllabus. Reasonable certainty of lost
profits may be demonstrated by expert testimony, economic
and financial data, marketing surveys and analysis and
business records. AGF, Inc. v. Great Lakes Heat Treating
Co. (1990), 51 Ohio St.3d 177, 183. Since the evidence
submitted in this matter is of the nature expressly
approved, we cannot say that the trial court erred in
accepting that evidence as proving lost profits with
reasonable certainty. As regards the underlying data, that
is a question of sufficiency of the evidence. Judgment
supported by some competent, credible evidence will not be
disturbed on appeal as against the manifest weight of the
evidence. C.E. Morris v. Foley Constr. Co. (1978), 54 Ohio
St.2d 279, syllabus. In this matter, there is a substantial
body of competent, credible evidence to support the award
of lost profits. Accordingly, appellants’ fourth assignment
of error is not well-taken.

IV. Attorney Fees, Expenses and Interest

In their fifth assignment of error,
appellants insist that appellee was not entitled to
prejudgment interest or attorney fees.

R.C. 1343.03(A) provides, in material part:

“(A) [W]hen money becomes due and payable * *
* upon any settlement * * * the creditor is entitled to
interest at the rate per annum determined pursuant to
section 5703.47 of the Revised Code, unless a written
contract provides a different rate of interest * * *.”

Appellants direct our attention to the
statutory phrase “money [that] becomes due and payable”
which, they argue, forecloses the imposition of interest in
this case because, under the settlement agreement, no money
was due to appellee from appellants, only parts. In support
of this proposition, appellants cite RPM, Inc. v. Oatley
Co., 9th Dist. No. C.A. 3282-M, 2005-Ohio-1280.

Appellee responds, maintaining that the
purpose of prejudgment interest is to make the aggrieved
party whole and that in furtherance of this purpose, Ohio
courts have long awarded prejudgment interest as part of
compensatory damages.

In RPM, a manufacturer obtained a
confidentiality agreement from a competitor who sought to
inspect the manufacturer’s books and facilities, ostensibly
for purposes of evaluating the company for acquisition. No
acquisition occurred and, when it appeared the defendant
had breached the confidentiality agreement, RPM sued and won
a verdict for breach of contract. The defendant appealed,
inter alia, the trial court’s award of prejudgment interest
on the breach award. The defendant argued prejudgment
interest was not permitted because the damages awarded did
not constitute money, “* * * `due and payable’ under a
contract.” RPM, § 62.

The court of appeals agreed with defendant,
concluding that, “[t]he contract at issue provided that RPM
would disclose to Oatey information * * * and, in return,
Oatey would keep that information confidential * * *. Had
both parties fully performed under the agreement, no money
would have been exchanged by these parties. Id., §
69. Consequently, the appeals court concluded, there was “no
money due and payable” and R.C. 1343.03(A) did not apply.
Id.

Irrespective of our view of the correctness
of RPM, it is distinguishable from the present matter.
Here, there was an intention to exchange money for
something of value. Thus, with a breach of the agreement,
the nonbreaching party was deprived of something of value
and the dollar amount of that value was ascertainable. The
purpose of prejudgment interest is to, “* * * make the
aggrieved party whole.” Royal Elec. Constr. v. OSU (1995),
73 Ohio St.3d 110, 117. “‘At the moment the cause of action
accrued, the injured party was entitled to be left whole
and became entitled to be made whole. * * * All damages
then, whether liquidated or unliquidated, pecuniary or
nonpecuniary, should carry interest from the time the cause
of action accrues * * *.'” Id., quoting with approval State
v. Phillips (Alaska 1970), 470 P.2d 266, 274.

When appellants repudiated the settlement
agreement on June 30, 2000, appellee was denied the benefit
of his bargain. Thus, to be made whole, he was entitled to
statutory interest on the value of the loss incurred from
the loss of that benefit. This is what the trial court
awarded. We find no error in this action.

With respect to the legal fees awarded,
ordinarily attorney fees are not recoverable in a contract
action. Exceptions to this general rule, however, exist. An
award of attorney fees is permitted 1) if a statute creates
a duty to pay such fees, 2) the nonprevailing party acts in
bad faith, or 3) the parties contract to shift fees. Shanker
v. Columbus Warehouse Ltd. (June 6, 2000), 10th Dist. No.
99AP-772, citing McConnell v. Hunt Sports Ent. (1999), 132
Ohio App.3d 657, 699. Additionally, legal fees may be
recovered as compensatory damages in certain circumstances.
Id.

In the present matter, appellee argued in the
trial court that it was entitled to attorney fees both as
compensatory damages and a result of appellee’s bad faith
and wrongful conduct. The trial court found that appellee,
“* * * made the requisite showing to recover attorney fees,
out of pocket litigation expense, and expert witness fees
as additional compensatory damages under each of the
theories if posited.” After an exhaustive review of the
record, we cannot say that the trial court erred in this
conclusion. Accordingly, appellants’ fifth assignment of
error is not well-taken.

IV. Personal Judgment

In his remaining assignment of error,
appellant Roe asserts that the trial court erred in making
its judgment applicable to him as an individual as opposed
to his corporate entity.

As appellee properly notes, Gregory Roe was
an individual signatory to the original 1997 installment
contract. He was individually named a defendant in this
lawsuit and never asserted his corporate shield. He also
individually asserted counterclaims in this suit. Appellee
further notes that the draft settlement agreement prepared
by appellants’ attorney contained a signature line for Roe
in his individual capacity.

Ordinarily errors that are not brought to the
attention of the court by objection or otherwise are waived
and may not be raised on appeal. Stores Realty Co. v.
Cleveland (1975), 41 Ohio St.2d 41, 43. Appellant Roe had
ample opportunity to raise and prove his right to corporate
protection in the proceeding below, but did not. As a
result, he cannot now be heard to say that the court erred
on a matter it was never asked to consider. Accordingly,
appellants’ sixth assignment of error is not well-taken.

On consideration whereof, the judgment of the
Lucas County Court of Common Pleas is affirmed. Appellants
are ordered to pay the costs of this appeal pursuant to
App.R. 24. Judgment for the clerk’s expense incurred in
preparation of the record, fees allowed by law, and the fee
for filing the appeal is awarded to Lucas County.

JUDGMENT AFFIRMED.

A certified copy of this entry shall constitute the mandate
pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.

[fn1] The testimony was that the stamp on the panel actually
spells “joop” but reads “Jeep” when a decal is applied.

[fn2] Appellants derive this figure from an on stand
evaluation by Tebay of the most recent costs of component
parts. An apparent miscalculation resulted in an erroneous
total of $841.61, rather than the correct sum of $804.61.