[Cite as Oberlin v. Lorain Cty. Joint Vocational School Dist. Bd. of Edn., 2019-Ohio-3977.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

CITY OF OBERLIN, OHIO                                       C.A. No.          18CA011338

        Appellee/Cross-Appellant

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
LORAIN COUNTY JOINT                                         COURT OF COMMON PLEAS
VOCATIONAL SCHOOL DISTRICT                                  COUNTY OF LORAIN, OHIO
BOARD OF EDUCATION, et al.                                  CASE No.   15CV186653

        Appellant/Cross-Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2019



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant/Cross-Appellee, Lorain County Joint Vocational School

District Board of Education (“JVS”) and Plaintiff-Appellee/Cross-Appellant, City of Oberlin

(“Oberlin”), appeal the judgment of the Lorain County Court of Common Pleas. For the reasons

that follow, we affirm in part, reverse in part, and remand.

                                                       I.

        {¶2}     This matter involves a contract dispute arising forty years after the execution of

the contract at issue. Oberlin and JVS are both political subdivisions. In 1969, JVS bought

approximately 131 acres of land located in the unincorporated Pittsfield Township for the

construction of the Lorain County Joint Vocational School facility. Although JVS originally

planned to construct an on-site sewage treatment plant, that plan became unworkable for a

variety of reasons.
                                                2


        {¶3}   Although the site was not contiguous with Oberlin, and therefore not eligible for

annexation, Oberlin and JVS entered into an agreement in 1971 whereby Oberlin agreed to

extend a sanitary sewer line to the site. The parties agreed to share various costs related to the

project and that JVS would sign an annexation petition for their property if one was presented to

them. Pursuant to the agreement, Oberlin would collect tap-in charges for future connections to

the sewer line and, after recovering its costs for the project, forward to JVS the balance of

monies collected until JVS had recuperated its costs, less the cost of the front footage charged

against it.

        {¶4}   The JVS’s property eventually became contiguous with Oberlin, and in August

2014, Oberlin presented JVS with an expedited type-I annexation petition. See R.C. 709.021 and

709.022. JVS did not sign the petition but instead filed an expedited type-II annexation petition

with the Lorain County Board of Commissioners (“County Commissioners”) on June 24, 2015.

See R.C. 709.023. Under an expedited type-II annexation, Oberlin would be prohibited from

collecting municipal income tax from JVS employees and contractors. See R.C. 709.023(J).

        {¶5}   Consequently, Oberlin filed suit in the Lorain County Court of Common Pleas

seeking a declaratory judgment, specific performance, and damages for breach of contract

against JVS. Specifically, Oberlin claimed that under the 1971 agreement, JVS was required to

sign the expedited type-I annexation petition that Oberlin had presented to JVS and that JVS was

prohibited from submitting an expedited type-II annexation petition. Oberlin’s complaint sought

specific performance and a court order that JVS sign Oberlin’s type-I petition and an injunction

against the County Commissioners seeking to enjoin them from processing JVS’s expedited

type-II annexation petition. Oberlin further asserted that it had suffered damages as a result of

JVS’s failure to sign the type-I petition.
                                                 3


       {¶6}    The trial court granted Oberlin’s motion for a temporary restraining order, and

enjoined the County Commissioners from considering or granting the annexation of JVS’s

property pursuant to either annexation petition already filed with the board or any future

annexation petition pending further order of the court or consent of both parties.

       {¶7}    Following “a significant amount of paper discovery,” JVS eventually filed a

counterclaim seeking a writ of mandamus commanding Oberlin and the County Commissioners

to move forward on JVS’s expedited type-II annexation petition and seeking damages for breach

of contract for Oberlin’s failure to remit sanitary sewer tap-in connection fees and for the

destruction of public records.

       {¶8}    Both Oberlin and JVS filed competing motions for summary judgment relating to

all claims between the parties. The trial court ultimately issued a judgment entry granting in part

and denying in part Oberlin’s claim for declaratory judgment, denying Oberlin’s claims for

specific performance and breach of contract, granting JVS’s counterclaim for breach of contract,

denying JVS’ counterclaim for a writ of mandamus as moot, and finally, denying JVS’s

counterclaim for damages for the destruction of public records as time-barred. The trial court’s

rulings were based on its determination that the agreement at issue was a valid and enforceable

contract and that JVS was only obligated by the contract to sign a traditional annexation petition

and not the expedited type-I petition. The court further determined that JVS was not permitted

under the agreement to submit its own petition or negotiate its own terms for annexation.

Regarding JVS’s breach of contract claim, the court determined that Oberlin had failed to

forward funds related to the sanitary sewer-tap in fees to JVS as agreed in the contract and,

following a damages hearing, awarded JVS $6,778.38.
                                                 4


        {¶9}   Both Oberlin and JVS filed timely appeals. JVS raises three assignments of error

for our review and Oberlin raises two. For ease of analysis, we have rearranged the assignments

of error.

                                                II.

        {¶10} Under Civ.R. 56(C), summary judgment is appropriate when:

        (1)[no] genuine issue as to any material fact remains to be litigated; (2) the
        moving party is entitled to judgment as a matter of law; and (3) it appears from
        the evidence that reasonable minds can come to but one conclusion, and viewing
        such evidence most strongly in favor of the party against whom the motion for
        summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The movant bears the initial

burden of demonstrating the absence of genuine issues of material fact concerning the essential

elements of the nonmoving party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the

moving party satisfies this burden, the non-moving party “must set forth specific facts showing

that there is a genuine issue for trial.” Id. at 293. A review of a trial court’s grant of summary

judgment is considered de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

Accordingly, we apply the same standard as the trial court, viewing the facts in the light most

favorable to the non-moving party and resolving any doubt in the favor of the non-moving party.

Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).

        {¶11} “The role of courts in examining contracts is to ascertain the intent of the parties.”

St. Marys v. Auglaize Cty. Bd. of Commrs., 115 Ohio St.3d 387, 2007-Ohio-5026, ¶ 18, citing

Hamilton Ins. Servs., Inc. v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 273 (1999). “Where the

terms in a contract are not ambiguous, courts are constrained to apply the language of the

contract.” Id. citing Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107,

108 (1995). “‘[U]nless there is fraud or other unlawfulness involved, courts are powerless to
                                                 5


save a competent person from the effects of his own voluntary agreement.’” Dugan & Meyers

Constr. Co., Inc. v. Ohio Dept. of Adm. Servs., 113 Ohio St.3d 226, 2007-Ohio-1687, ¶ 29,

quoting Ullmann v. May, 147 Ohio St. 468, 476 (1947).

                                  JVS’s Assignment of Error I

       The trial court erred as a matter of law in not concluding that the 1971
       contract is void and unenforceable for failing to attach an R.C. 5705.41 fiscal
       certificate.

       {¶12} In its first assignment of error, JVS contends that the trial court erred by denying

JVS’ motion for summary judgment because the 1971 contract was void. JVS argues that the

underlying contract was invalid because a fiscal certificate was not attached pursuant to R.C.

5705.41. We disagree.

       {¶13} In its motion for summary judgment, JVS argued, inter alia, that the alleged

contract in Oberlin’s complaint was void and unenforceable because it lacked a fiscal certificate

from one or both parties, a fact Oberlin does not dispute. Former R.C. 5705.41, provides that

       No subdivision or taxing unit shall:

       (A) Make any appropriation of money except as provided in [R.C. 5705.41] to
       [R.C. 5705.47].

       ***

       (D) Make any contract or give any order involving the expenditure of money
       unless there is attached thereto a certificate of the fiscal officer of the subdivision
       that the amount required to meet the same * * * has been lawfully appropriated
       for such purpose and is in the treasury or in process of collection to the credit of
       an appropriate fund free from an previous encumbrances. Every such contract
       made without such a certificate shall be void and no warrant shall be issued in
       payment of any amount due thereon.1




       1
          Although revised and renumbered, the language on which JVS relies has remained
substantially unchanged. See R.C. 5705.41(D)(1).
                                                 6


“Thus, where a certificate is required, failure to include one is fatal to the validity of the

contract.” NaphCare, Inc. v. Cty. Council of Summit Cty, 9th Dist. Summit No. 24906, 2010-

Ohio-4458, ¶ 11, quoting State v. Kuhner, 107 Ohio St. 406, 413-414 (1923). “[C]ertification

pursuant to R.C. 5705.41 serves two purposes: (1) ‘to prevent fraud and the reckless expenditure

of public funds[;]’ and (2) ‘to preclude the creation of any valid obligation against the [political

subdivision] above or beyond the fund previously provided and at hand for such purpose.’” Id.

at ¶ 21, Kuhner at 413.

       {¶14} JVS argues that the contract at issue required a fiscal certificate because it “called

for the expenditure of money on the part of both the JVS and Oberlin.” Although “expenditure”

is not specifically defined by the statute, the term is commonly defined as “[t]he act or process of

spending or using money, time, energy, etc.; esp[ecially], the disbursement of funds * * * .”

Black’s Law Dictionary, 11th Ed.2019). JVS does not point to any specific provision of the

contract for its assertion, arguing only that the contract “clearly required each political

subdivision to expend funds under the agreement.”

       {¶15} The contract at issue explains the parties’ reasons for entering into the agreement

as follows:

       Whereas, [Oberlin] operates a sanitary waste disposal system primarily within the
       City of Oberlin, Ohio, and

       Whereas, the [JVS] is in the process of constructing a Joint Vocation Education
       School on Route 58, South of the Corporate limits of the City of Oberlin, and

       Whereas, the [JVS] is interested in arranging for sanitary sewer services for said
       school building, and [Oberlin] is willing to have said School tied into the existing
       sanitary sewer system under certain conditions.

Accordingly, Oberlin agreed to secure permission from the State of Ohio to install the sewer line

and to “cause the necessary plans, specifications and estimates of cost necessary to advertise for
                                                7


bids” and when the plans were prepared would advertise for said bids. The agreement goes on to

state that once bids have been received, “both [Oberlin] and [JVS] shall review them, and if they

are acceptable to both parties, Oberlin shall award the contract[.]” The agreement then states

which part of the project each party would be responsible to pay.

       {¶16} Upon review, we determine that JVS did not meet its initial Dresher burden to

show that the contract at issue required a fiscal certificate pursuant to former R.C. 5705.41 since

the contract did not authorize any disbursement of funds. Although the contract anticipated a

future expenditure of funds by the parties, such expenditure was speculative and would have

been paid to a third party assuming an acceptable bid had been received after Oberlin had

“cause[d] the necessary plans, specifications and estimates of cost necessary to advertise for

bids[.]” Thus, the contract at issue merely outlines the respective responsibilities of each party

as to possible future costs and does not provide for a contemporaneous expenditure of funds by

the parties bound by the agreement.

       {¶17} JVS’ first assignment of error is overruled.

                                Oberlin’s Assignment of Error I

       The trial court erred as a matter of law in finding that Oberlin breached the
       1971 Agreement by not remitting to JVS sanitary sewer tap-in fees received
       after JVS materially breached the Agreement and after Oberlin commenced
       this action in the trial court.

       {¶18} In its first assignment of error, Oberlin contends that the trial court erred when it

determined that Oberlin had breached the 1971 contract because: (1) Oberlin performed all of its

material obligations under the agreement; and (2) its obligation to remit sanitary sewer tap-in

fees to JVS, which did not arise until after the present litigation was commenced, was excused by

JVS’s own material breach of the contract.
                                                  8




A. Forfeiture of Affirmative Defense

       {¶19} As an initial matter, we must determine whether Oberlin has forfeited these

arguments.    JVS argues that Oberlin waived these arguments because it “did not raise

anticipatory breach/repudiation, or material breach/substantial performance, as affirmative

defenses in its reply to JVS’s counterclaim for breach of contract.”

       {¶20} Civ.R. 8(C) provides that “[i]n pleading to a preceding pleading, a party shall set

forth affirmatively * * * any * * * matter constituting an avoidance or affirmative defense.”

“Failure to set forth an affirmative defense, other than those listed in Civ.R. 12(B), acts as a

waiver if the defense was not raised in the pleadings or in an amendment to the pleadings.”

Matrix Acquisitions, L.L.C. v. Manley, 9th Dist. Summit No. 27191, 2014-Ohio-2860, ¶ 9, citing

Jim’s Steak House, Inc. v. City of Cleveland, 81 Ohio St.3d 18, 20 (1998).

       {¶21} “An affirmative defense assumes the allegations in the complaint to be true, but

constitutes a defense to them.” Aquatic Renovations Systems, Inc. v. Village of Walbridge, 6th

Dist. Wood No. WD-17-038, 2018-Ohio-1430, ¶ 27, citing Davis v. Cincinnati, Inc., 81 Ohio

App.3d 116, 119 (9th Dist.1991). Specifically, “[a]n affirmative defense is any defensive matter

in the nature of a confession and avoidance.          It admits that the plaintiff has a claim (the

‘confession’) but asserts some legal reason why the plaintiff cannot have any recovery on that

claim (the ‘avoidance’).” State ex rel. The Plain Dealer Publishing Co. v. Cleveland, 75 Ohio

St.3d 31, 33 (1996).

       {¶22} To prove a breach of a contract, a plaintiff must demonstrate by a preponderance

of the evidence that a contract existed, the plaintiff fulfilled its obligations, the defendant failed

to fulfill its obligations, and plaintiff suffered damages as a result. Price v. KNL Custom Homes,
                                                  9


Inc., 9th Dist. Summit No. 26968, 2015-Ohio-436, ¶ 30. “The long and uniformly settled rule as

to contracts requires only a substantial performance in order to recover upon such contract.

Merely nominal, trifling, or technical departures are not sufficient to breach the contract.” Ohio

Farmers’ Ins. Co. v. Cochran, 104 Ohio St. 427 (1922), paragraph two of the syllabus. Thus,

“[i]n the law of contracts, ‘substantial performance’ is [an] approximation of full performance

such that the parties obtain, in the main, what the contract called for, although it is not complete

and final performance in every particular.” Stone Excavating, Inc. v. Newmark Homes, Inc., 2d

Dist. Montgomery No. 20307, 2004-Ohio-4119, ¶ 13, citing 17A American Jurisprudence 2d,

Contracts, Section 619, at 576.

       {¶23} Thus, Oberlin’s claim of substantial performance in this case attacks an essential

element of JVS’s claim and is not in the nature of confession and avoidance and, therefore, is not

an affirmative defense. See Sims v. Anderson, 4th Dist. Washington No. 14CA31, 2015-Ohio-

2727, ¶ 19 (summarily stating that substantial compliance is not an affirmative defense to a

contract). Accordingly, Oberlin did not forfeit this argument below.

       {¶24} On the other hand, although Oberlin maintains it did not breach the contract, it

argues in the alternative that if it did breach the contract, JVS’s alleged anticipatory breach of the

contract prevents JVS from recovery. Thus, Oberlin’s claim of anticipatory breach is in the

nature of confession and avoidance, and, therefore, an affirmative defense. See Plain Dealer

Publishing Co., 75 Ohio St.3d at 33. Oberlin did not raise this purported affirmative defense in a

responsive pleading below.        Accordingly, “[b]ecause [Oberlin] never asserted [anticipatory

breach] in a responsive pleading, instead asserting it for the first time in a motion for summary

judgment, [it] waived [its] affirmative defense.” Nationstar Mtge., L.L.C. v. Young, 9th Dist.

Summit No. 28134, 2016-Ohio-8287, ¶ 23.
                                                10


B. Substantial Performance

       {¶25} As recognized above, the settled law in Ohio is that “merely nominal, trifling, or

technical departures are not sufficient to breach [a] contract.” Cochran, 104 Ohio St. 427 at

paragraph two of the syllabus. “However, for the doctrine of substantial performance to apply,

the part unperformed must not destroy the value or purpose of the contract, and application of the

doctrine of substantial performance should be confined to very narrow limits, and to the cases

where there has been an honest effort to perform.” (Internal quotations and citations omitted.)

Wengerd v. Martin, 9th Dist. Wayne No. 97CA0046, 1998 WL 225107, *1 (May 6, 1998). “A

party has not substantially performed when the omissions complained of are material to the

essential duties promised.” Steen Elec. v. Homes of Elegance, Inc., 9th Dist. Summit No. 21876,

2004-Ohio-6275, ¶ 17. “When the facts presented are undisputed, whether they constitute a

performance or a breach of a written contract, is a question of law for the court.” Luntz v. Stern,

135 Ohio St. 225 (1939), paragraph five of the syllabus.

       {¶26} Although Oberlin’s merit brief cites case law relevant to substantial performance,

it does not articulate in what way Oberlin substantially performed. Instead, Oberlin reasserts that

its duty to reimburse JVS did not arise until after the present litigation commenced and after JVS

refused annexation. We have already determined that Oberlin waived the purported affirmative

defense of anticipatory repudiation and we decline to develop a substantial performance

argument on Oberlin’s behalf. See State v. Jackson, 9th Dist. Summit No. 28691, 2018-Ohio-

1285, ¶ 47, citing State v. Sadeghi, 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 32.

       {¶27} Oberlin’s first assignment of error is overruled.
                                                11


                               Oberlin’s Assignment of Error II

       The trial court erred as a matter of law in denying Oberlin’s claim for
       specific performance and declaring that the JVS is obligated to sign a
       traditional annexation petition only.

       {¶28} In its second assignment of error, Oberlin contends that the trial court erred by

denying its claim for specific performance and determining that JVS was only obligated to sign a

traditional annexation petition. Oberlin’s argument in this assignment of error focuses almost

entirely on its contentions related to specific performance but does briefly reference the

extensive argument in its first assignment of error alleging that the 1971 contract obligated JVS

to sign the annexation petition. Although App.R. 16(A)(7) requires an appellant to separately

argue each assignment of error, we elect under the circumstances here to consider Oberlin’s

argument that JVS was obligated to sign the expedited type-I annexation petition because that is

the type of petition Oberlin presented to JVS. See App.R.12 (A)(2).

       {¶29} In exchange for Oberlin agreeing to extend its sanitary sewer system to JVS’s

property, JVS agreed in the 1971 contract “to sign an annexation petition for their property if

presented to them.”    In its complaint, Oberlin argued that it was entitled to a declaratory

judgment that this provision obligated JVS to sign the type-I annexation petition when it was

presented to them. On the contrary, JVS argued in its motion for summary judgment that it was

entitled to summary judgment on Oberlin’s claim “because neither party contemplated an

expedited annexation petition process at the time of the [1971 contract].”

       {¶30} Our role in examining the 1971 contract “is to ascertain the intent of the parties.”

St. Marys, 2007-Ohio-5026 at ¶ 18, citing Hamilton Ins. Servs., Inc., 86 Ohio St.3d at 273.

“Where the terms in a contract are not ambiguous, courts are constrained to apply the language

of the contract.” St. Marys citing Nationwide Mut. Fire Ins. Co., 73 Ohio St.3d at 108. In this
                                                12


case, Oberlin does not argue that the terms of the 1971 agreement are ambiguous, but instead

argues that the term stating “[JVS] further agrees to sign an annexation petition for their property

if presented to them” “imposes no limitation upon the type of petition Oberlin might choose to

tender or what annexation process might be employed[.]”

       {¶31} However, “[t]he Supreme Court of Ohio has held that the law existing at the time

a contract is executed becomes a part of that contract.” Labate v. Natl. City Corp., 113 Ohio

App.3d 182, 185 (9th Dist.1996), citing E. Mach. Co. v. Peck, 161 Ohio St. 1, 6-7 (1959). In

Ohio, territorial annexation is strictly a statutory process. State ex rel. Butler Twp. Bd. of

Trustees v. Montgomery Cty. Bd. of Commrs., 112 Ohio St.3d 262, 2006-Ohio-6411, ¶ 2; see

R.C. 709.01 et seq. Notably, the special expedited type-I annexation procedure provided in R.C.

709.022 did not exist until March 2002. See Am.Sub.S.B. No. 5, 2001 Ohio Laws File 36. In

1971, the only territorial annexation process then in existence was the traditional annexation

process. See former R.C. 709.02, et seq. Although the annexation statute has been revised over

time to allow special procedures in specific circumstances, the traditional annexation process has

remained substantially the same. See Am.Sub.S.B. No. 5, 2001 Ohio Laws File 36 (inter alia,

creating three special procedures for expedited annexation and revising the process for appealing

the decision of a board of commissioners); see also R.C. 709.02, et seq. As the expedited type-I

annexation procedure did not exist when the 1971 contract was executed, it could not have been

the intent of the parties to obligate JVS to sign such a petition. Rather, the parties could only

have intended for annexation to proceed through the traditional process that existed when the

1971 contract was executed.

       {¶32} Oberlin further argues that “the expedited type-I process most closely and

efficiently accomplishes the Parties’ intent” that JVS’s property be annexed since the only
                                                 13


difference between the traditional annexation process and the expedited type-I procedure is that

the annexation is accomplished without holding a hearing. See R.C. 709.02; R.C. 709.03; R.C.

709.022. While it may be true that the expedited type-I process is the most efficient means to

achieve the intended result—the annexation of JVS’s property, JVS was not obligated by the

contract to sign such a petition.

         {¶33} Oberlin’s second assignment of error is overruled.

                                    JVS’ Assignment of Error II

         [T]he trial court erred as a matter of law in declaring that the contract bars
         the JVS from ever submitting its own annexation petition, without the prior
         approval of [Oberlin]. In turn, the trial court erred in issuing a permanent
         injunction against the County Commissioners, barring the Commissioners
         from taking any action on the JVS’s duly filed expedited type-II annexation
         petition.

         {¶34} In its second assignment of error, JVS argues that the trial court erred by

determining that the contract barred JVS from submitting its own annexation petition, without

the prior approval of Oberlin. JVS further argues that the trial court erred in issuing a permanent

injunction barring the Commissioners from taking any action on JVS’s annexation petition. We

agree.

         {¶35} When confronted with an issue of contract interpretation, “we will look to the

plain and ordinary meaning of the language used in the contract unless another meaning is

clearly apparent from the contents of the agreement. When the language of a written contract is

clear, a court may look no further than the writing itself to find the intent of the parties.” Sunoco,

Inc. (R & M) v. Toledo Edison Co., 129 Ohio St.3d 397, ¶ 37.

         {¶36} The only provision in the 1971 contract related to annexation reads in full: “[JVS]

further agrees to sign an annexation petition for their property if presented to them.” By its clear
                                                14


language, this provision only requires JVS to sign an annexation petition “if presented” and

establishes no further obligations or prohibitions on the parties regarding annexation.

       {¶37} Therefore, we conclude that the trial court erred when it determined that the

contract barred JVS from submitting its own annexation petition and when it issued a permanent

injunction barring the Commissioners from taking any action on JVS’s annexation petition.

       {¶38} JVS’s second assignment of error is sustained.

                                 JVS’ Assignment of Error III

       The trial court erred in holding that the JVS’s request for a writ of
       mandamus was moot, based on its erroneous conclusion that the JVS was not
       permitted to submit an expedited type-II annexation petition. Instead, a writ
       of mandamus should issue—by this Court—ordering [Oberlin] to pass, and
       file with the Commissioners, an ordinance or resolution setting forth the
       services [Oberlin] will provide to the territory proposed for annexation, in
       compliance with [Oberlin]’s clear legal duty under R.C. 709.023(C).

       {¶39} In its third assignment of error, JVS contends that the trial court erred when it

denied its motion for summary judgment on its claim for a writ of mandamus.

       {¶40} JVS argued in its motion for summary judgment that upon the filing of its

expedited type-II annexation petition, Oberlin was obligated pursuant to R.C. 709.023(C) to pass

an ordinance or resolution stating what services it would provide, and an approximate date by

which it would provide them to the territory proposed for annexation in the petition. In response,

however, Oberlin argued that JVS’s mandamus claim should fail for several reasons including,

inter alia, that it failed to comply with R.C. 2731.04 and that Oberlin was under no duty to

provide services where the city had objected to the annexation pursuant to R.C. 709.023(D).

       {¶41} Because we conclude that the trial court erred when it determined that JVS was

not permitted to submit an annexation petition pursuant to the contract, it necessarily follows that

the trial court erred when it determined that JVS’s request for a writ of mandamus was moot.
                                                15


Nonetheless, we decline to consider the merits of JVS’s motion for summary judgment regarding

its writ of mandamus in the first instance.

        “This Court has repeatedly held that issues raised in summary judgment motions,
        but not considered by the trial court will not be decided by this Court in the first
        instance.” McFarland v. Niekamp, Weisensell, Mutersbaugh & Mastrantonio,
        LLP, 9th Dist. Summit No. 28462, 2017-Ohio-8394, ¶ 31, citing Skidmore v. Natl.
        Bronze & Metals (Ohio), Inc., 9th Dist. Lorain No. 12CA010328, 2014-Ohio-
        4423, ¶ 16; Neura v. Goodwill Indus., 9th Dist. Medina No. 11CA0052-M, 2012-
        Ohio-2351, ¶ 19; Guappone v. Enviro-Cote, Inc., 9th Dist. Summit No. 24718,
        2009-Ohio-5540, ¶ 13. See also Expressions Hair Design v. Schneiderman, 581
        U.S. ––––, ––––, 137 S.Ct. 1144, 1151, (2017), quoting Nautilus, Inc. v. Biosig
        Instruments, Inc., 572 U.S. [898], [913], 134 S.Ct. 2120, (2014) (“[W]e are a
        court of review, not of first view.”). “To consider summary judgment arguments
        in the first instance on appeal, ‘effectively depriv[es] the non-prevailing party of
        appellate review.’” McFarland at ¶ 38, quoting Guappone at ¶ 13.

Lopez v. Hulburt, 9th Dist. Summit No. 28817, 2018-Ohio-2499, ¶ 10. Furthermore, we decline

to take any position on whether or not other actions taken by either party have rendered this issue

moot.

        {¶42} JVS’s third assignment of error is sustained in part and overruled in part.

                                                III.

        {¶43} JVS’s first assignment of error is overruled and its second assignment of error is

sustained. JVS’s third assignment of error is sustained in part and overruled in part. Oberlin’s

first and second assignments of error are overruled. Therefore, the judgment of the Lorain

County Court of Common Pleas is affirmed in part and reversed in part and this matter is

remanded to the trial court for further proceedings consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                                   and remanded




        There were reasonable grounds for this appeal.
                                                16


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



TEODOSIO, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

JENNIFER A. FLINT and BRYAN M. SMEENK, Attorneys at Law, for Appellant/Cross-
Appellee.

DENNIS M. O’TOOLE, MATTHEW A. DOOLEY, and STEVEN M. BOSAK, JR., Attorneys
at Law, for Appellee/Cross-Appellant.
