Contract and memorandum of understanding with different dates properly construed together
How later courts described this case
- Contract and memorandum of understanding with different dates properly construed together
Written by the judges who cited it.
The opinion
Timothy P. Cannon, Judge,
concurring.
{¶ 81} I concur with the judgment of the majority. However, I write separately to address two issues.
{¶ 82} First, allowing appellants to proceed with the causes of action alleged in the complaint defeats the entire purpose of requiring these issues to be presented to SERB and/or arbitration. While the conduct of the district administrators may have been as reprehensible as alleged, the parties have agreed, and the law requires, this conduct to be addressed in a separate forum.
{¶ 83} Second, there are issues that should be clarified with regard to the distinctions between a “cross-appeal” and a “cross-assignment of error.”
{¶ 84} With regard to the cross-appeal, App.R. 3(C)(2) states as follows: “[Cjross appeal not required. A person who intends to defend a judgment or order appealed by an appellant on a ground other than that relied on by the trial court but who does not seek to change the judgment or order is not required to file a notice of cross appeal.” All the claims against appellee CBS were dismissed by the trial court. Presumably, this appellee does not want to change this judgment. It appears CBS is seeking to have this court rule that the judgment is *271 correct, but for the wrong reason. This is a classic example of a situation in which a cross-assignment of error should be used.
{¶ 85} While App.R. 3(C) makes no mention of a cross-assignment of error, it probably should in order to clarify what is expected of appellees who find themselves in a position in which the trial court arrived at the correct result but for the wrong reason. A better explanation of what is expected can be found in R.C. 2505.22. That statute provides:
{¶ 86} “In connection with an appeal of a final order, judgment, or decree of a court, assignments of error may be filed by an appellee who does not appeal, which assignments shall be passed upon by a reviewing court before the final order, judgment, or decree is reversed in whole or in part. The time within which assignments of error by an appellee may be filed shall be fixed by rule of court.”
{¶ 87} While this statute more properly explains the concept of a cross-assignment of error, there are two issues to consider. First, I am unaware that any rule has addressed the statutory directive to establish a time within which a cross-assignment of error should be filed, leaving an appellee to wonder.
{¶ 88} Second, the cases interpreting this statute consistently hold that unless the final order, judgment, or decree is reversed in whole or in part, the reviewing court should not address the cross-assignment of error. However, App.R. 12(A)(1) states: [A] court of appeals shall do all of the following: “(c) [u]nless an assignment of error is made moot by a ruling on another assignment of error, decide each assignment of error and give reasons in writing for its decision.” App.R. 12(A) also does not address a cross-assignment of error. If the judgment is affirmed, does the appellate court find the cross-assignment of error moot, or does the rule suggest that the cross-assignment of error should be addressed? Or are we governed by the suggestion in R.C. 2505.22 to pass upon the cross-assignment of error only in the event it prevents reversal of the trial court judgment in whole or part? The bigger question is when a trial court has, in fact, entered a judgment, but for the wrong reason, why would the appellate court not address it? Failure to do so has the potential to perpetuate the influence of bad law in other, similar cases. See Gay v. O.F. Mossberg & Sons, Inc., 11th Dist. No. 2008-P-0006, 2009-Ohio-2954 , 2009 WL 1743939 , at ¶ 96-141.
{¶ 89} In order to be clear and consistent, the Rules Committee would do well to establish, in accord with the statutory directive, a time deadline for filing a cross-assignment of error and also what is expected of the appellate court with regard to disposition of a cross-assignment of error.