[Cite as CNT Construction, Inc. v. Bailey, 2012-Ohio-2312.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 97532 

CNT CONSTRUCTION, INC., ET AL.

PLAINTIFFS-APPELLANTS 

vs. 

ANGELA BAILEY, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT:

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-721902 

BEFORE: Kilbane, J., Celebrezze, P.J., and Sweeney, J. 

RELEASED AND JOURNALIZED: May 24, 2012 
ATTORNEY FOR APPELLANTS

Harvey J. McGowan 

1245 East 135th Street 

East Cleveland, Ohio 44112-2413 

ATTORNEYS FOR APPELLEES

For Angela Bailey

Michael L. Nelson 

4415 Euclid Avenue, Suite 332 

Cleveland, Ohio 44103 

For American Eagle Mortgage Corp. 

Joshua E. Lamb 

Colella & Weir, P.L.L. 

6055 Park Square Drive 

Lorain, Ohio 44053 

For Freedom Mortgage Corp. 

Brian C. Lee 

Brent S. Silverman 

Reminger Co., L.P.A. 

1400 Midland Building 

101 Prospect Avenue - West 

Cleveland, Ohio 44115-1093 
MARY EILEEN KILBANE, J.: 

{¶1} Plaintiffs-appellants, CNT Construction, Inc. and Charles Ficklin 

(collectively referred to as “appellants”), appeal the trial court’s judgments granting 

summary judgment in favor of defendant-appellee, Freedom Mortgage Corp. (“FMC”), 

and a motion to dismiss in favor of defendant-appellee, American Eagle Mortgage Corp. 

(“AEM”). Finding no merit to the appeal, we affirm. 

{¶2} In March 2010, appellants filed a complaint against Angela Bailey 

(“Bailey”), AEM, and FMC, arising from renovation work appellants performed on 

Bailey’s home after she obtained a mortgage loan through the Federal Housing 

Authority’s rehabilitation loan program. AEM provided the loan agreement that Bailey 

signed. AEM subsequently sold the servicing rights to FMC. FMC sent a check to 

Bailey for the third and final installment, but Bailey never paid that amount to appellants. 

{¶3} Appellants’ complaint asserted the following causes of action against 

Bailey: (1) breach of contract, (2) unjust enrichment, (3) detrimental reliance, and (4) 

tortious interference with property rights. Appellants presented the following claims 

against AEM and FMC: (1) breach of contract and (2) negligence. 

{¶4} Bailey answered appellants’ complaint and asserted a counterclaim for 

breach of contract. AEM filed a Civ.R. 12(B)(6) motion to dismiss appellants’ 

complaint, which the trial court granted in September 2010. In July 2010, FMC 

answered the complaint and asserted cross-claims against Bailey for indemnification and 
contribution. In October 2010, FMC filed a motion for summary judgment. FMC 

supported its motion with several documents, including an affidavit, Ficklin’s deposition 

testimony, and a copy of the arbitration award made by the panel in Case No. 

CV-671460. 1

 Appellants filed an opposition brief that was supported by several 

exhibits. The trial court granted FMC’s motion for summary judgment in November 

2010. FMC subsequently dismissed its cross-claims against Bailey. 

{¶5} The matter proceeded to jury trial in December 2010. At the conclusion of 

trial, the court issued an order stating that: 

Jury returns a verdict in favor of the Plaintiffs, CNT Construction and 

Charles Ficklin, and against the Defendant Angela Bailey on Plaintiffs’ 

claim of breach of contract in the amount of $20,905.00. Jury returns a 

verdict in favor of the Defendant Angela Bailey and against the Plaintiffs 

on Defendant’s counterclaim of breach of contract in the amount of 

$1,500.00. * * * Final. There is no just reason for delay. 

{¶6} Appellants then appealed from this order in CNT Constr. Inc. v. Bailey, 8th 

Dist. No. 96292, 2011-Ohio-4640. In that appeal, appellants presented arguments 

relating to their original case, Case No. CV-671460, and to orders issued by the trial court 

relating to AEM and FMC. However, we dismissed the appeal for lack of a final, 

appealable order. Id. at ¶ 29. We found that: 

 1In Case No. CV-671460, appellants originally filed an action against Bailey only for breach 

of contract. This matter proceeded to arbitration and the panel found in favor of appellants. 

However, because appellants were not able to collect on their judgment, they subsequently entered 

into a settlement agreement with Bailey. On this basis, the parties dismissed their claims against 

each other in September 2009. When the agreement failed, the trial court took over the case again. 

In February 2010, the parties again dismissed that action. See CNT Constr. Inc. v. Bailey, 8th Dist. 

No. 96292, 2011-Ohio-4640, ¶ 4.
Appellants * * * attempt to appeal from judgments that do not relate to 

Bailey, but Bailey was the only defendant named in the latest order, and 

appellants prevailed in that order. Therefore, the phrase “no just reason 

for delay” cannot serve to make that order a final one. * * * 

Appellants are not prevented from obtaining a judgment on their remaining 

claims against Bailey, so any appeal from interlocutory orders that relate to 

AEM and FMC is premature. * * * Id. at ¶ 27-28. 

{¶7} Upon remand, appellants filed a motion for a final, appealable order against 

Bailey, AEM, and FMC. The trial court granted the motion and issued a new order, 

stating that: 

Jury returns a general verdict in favor of the Plaintiffs, CNT Construction 

and Charles Ficklin, and against the Defendant Angela Bailey on Plaintiffs’ 

claims in the amount of $20,905.00. Jury returns a verdict in favor of the 

Defendant Angela Bailey and against the Plaintiffs on Defendant’s 

counterclaims in the amount of $1,500.00. * * * Final. There is no just 

reason for delay. 

{¶8} Subsequently, appellants appealed from this order, in conjunction with the 

trial court’s orders of September 1, 2010, granting AEM’s motion to dismiss and 

November 30, 2010, granting FEM’s motion for summary judgment. 

{¶9} Appellants raise the following 11 assignments of error for our review, 

which shall be discussed together where appropriate. 

 ASSIGNMENT OF ERROR ONE 

The trial court erred in granting summary judgment for [AEM and FMC] as 

the actions of these dismissed defendant[s]-appellees were in violation of 

the 203(k) regulations governing the mortgage loan and the construction 

repairs by the plaintiffs. 

 ASSIGNMENT OF ERROR TWO 
The trial court erred in granting summary judgment to [AEM] as 

considering the matter most favorably against the moving party, the 

defendant-appellee [AEM] was not entitled to judgment as a matter of law 

as substantial, unresolved disputed fact existed. 

 ASSIGNMENT OF ERROR THREE 

The trial court erred in granting summary judgment to [FMC] as 

considering the matter most favorably against the moving party the 

defendant-appellee [FMC] was not entitled to judgment as a matter of law 

as substantial, unresolved disputed fact existed. 

 ASSIGNMENT OF ERROR FOUR 

The trial court erred in granting summary judgment to defendant-appellee 

[FMC] as there were clearly two interpretations of the disputed language. 

The trial court erred in finding that “freedom mortgage did not breach a 

contract with CNT Construction as the parties never entered a contract and 

hereby grant summary judgment in favor of [FMC] on the breach of 

contract claim.” 

 ASSIGNMENT OF ERROR FIVE 

The trial court erred in granting summary judgment to defendant-appellee 

[FMC] as there were clearly two interpretations of the disputed language. 

The trial court erred in finding that “the court order finds that defendant 

freedom mortgage is entitled to judgment as a matter of law on the 

negligence claim.” To establish a claim for negligence there must be the 

existence of a duty on the part of the defendant. Stanford v. Par–Ruchman 

Home Town Motor Sales, Inc., [25 Ohio St.2d 1, 265 N.E.2d 785 (1971)]. 

 ASSIGNMENT OF ERROR SIX 

The trial court erred in granting summary judgment to defendant-appellee 

[FMC] as there were clearly two interpretations of the disputed language. 

The trial court erred in finding that “the HUD contract specifically provides 

that [FMC] may make the check in question payable to the borrower and/or 

the contractor thereby authorizing freedom mortgage to make the check 

payable to Angela Bailey only. Rehabilitation loan agreement, paragraph 

4. Plaintiff may not imply a duty to make the check payable to both CNT 

Construction and Angela Bailey when there is a specific provision in the 

contract allowing [FMC] to make the check payable to Angela Bailey only.” 
 ASSIGNMENT OF ERROR SEVEN 

The trial judge erred in Case No.: CV-671460 by failing to hold the funds 

released pursuant to the [court’s] order subsequently vacated. The 

transcript thereof was filed and made a part of the court record in Case No.: 

CV-10-721902 and is relevant hereto by incorporation thereby. 

 ASSIGNMENT OF ERROR EIGHT 

The trial court erred by not recusing himself in Case No.: CV-10-721902 

when the court had been presiding over and was a participant of the 

settlement actions (subsequently vacated) in Case No.: CV-671460. The 

defendant, Angela Bailey was only able to obtain the funds due to the 

plaintiff/appellant by the entry of the court that provided as follows: “* * * 

that the parties have agreed Defendant, Angela Bailey[,] shall pay to CNT 

Construction, et al. The check from [FMC] ($20,905.50) by Fri 9/18/09 

through Defendant Counsel[’s] IOLTA. All other claims and 

counterclaims dismissed with prejudice. Parties will sign mutual releases. 

 Both parties acknowledge they are accepting this settlement with full 

understanding and willingly * * *.” 

 ASSIGNMENT OF ERROR NINE 

The trial court erred in granting the summary judgment to either [AEM] 

and/or [FMC] for reasons including that the only representative of either 

defendant-appellee was their mutual employee, Joe Howard who originated 

the control of the mortgage with [AEM] and continued [to control] the 

mortgage with [FMC]. The trial court was further in error in not finding 

that this was a dual agency leaving both mortgage companies responsible 

even though the “dual agency was never disclosed.” 

 ASSIGNMENT OF ERROR TEN 

The trial court erred in granting summary judgment to defendant-appellees’ 

[AEM] and/or [FMC] holding neither responsible for the actions that 

occurred in spite of the facts that the sale of the mortgage documents left 

[FMC] responsible to indemnify [AEM] for the liabilities that are addressed 

within the litigation in this case. 

 ASSIGNMENT OF ERROR ELEVEN 
The trial court erred in granting summary judgment to defendant-appellees’ 

[AEM] and/ or [FMC] who released the funds direct to defendant, Angela 

Bailey pursuant to an order of the court originating in Case No.: 

CV-671460 and subsequently vacated by the court when it was undisputed 

that plaintiff[s]/appellants did all of the work on the property and remain 

unpaid to date. 

App.R. 12

{¶10} We initially note that appellants’ third, fourth, fifth, sixth, ninth, and tenth 

assignments of error essentially state that the trial court erred in granting “summary 

judgment” to FMC or AEM because there are two interpretations of the disputed 

language, there was a dual agency, and appellants completed the work on Bailey’s 

property but have not been paid. In these assigned errors, however, appellants either cite 

authority without presenting any legal argument, cite to testimony without presenting any 

legal argument, or state that “[a]ll arguments presented herein previously presented are 

incorporated herein as if fully rewritten.” 

{¶11} App.R. 12(A)(1)(b) directs this court to determine the merits of appeals “on 

the assignments of error set forth in the briefs under App.R. 16.” App.R. 12(A)(2) 

further provides that an appellate court “may disregard an assignment of error presented 

for review if the party raising it fails to identify in the record the error on which the 

assignment of error is based or fails to argue the assignment separately in the brief, as 

required under App.R. 16(A).” 

{¶12} It is not the duty of an appellate court to search the record for evidence to 

support an appellant’s argument as to any alleged error. State v. McGuire, 12th Dist. 

No. CA95-01-001, 1996 WL 174609 (Apr. 15, 1996). “‘An appellate court is not a 
performing bear, required to dance to each and every tune played on an appeal.’” State 

v. Watson, 126 Ohio App.3d 316, 317, 710 N.E.2d 340 (12th Dist.1998), quoting 

McGuire. Because appellants failed to argue these assigned errors, we decline to 

address them. See N. Coast Cookies v. Sweet Temptations, 16 Ohio App.3d 342, 

343-344, 476 N.E.2d 388 (8th Dist.1984). 

{¶13} Accordingly, the third, fourth, fifth, sixth, ninth, and tenth assignments of 

error are overruled. 

FMC

{¶14} In the first assignment of error, appellants argue that the trial court erred 

when it granted FMC’s motion for summary judgment. 

{¶15} We review and appeal from summary judgment under a de novo standard of 

review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); 

Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 N.E.2d 860 

(8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696 

N.E.2d 201 (1998), the Ohio Supreme Court set forth the appropriate test as follows: 

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is 

no genuine issue of material fact, (2) the moving party is entitled to 

judgment as a matter of law, and (3) reasonable minds can come to but one 

conclusion and that conclusion is adverse to the nonmoving party, said party 

being entitled to have the evidence construed most strongly in his favor. 

Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 

1196, paragraph three of the syllabus. The party moving for summary 

judgment bears the burden of showing that there is no genuine issue of 

material fact and that it is entitled to judgment as a matter of law. Dresher 

v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274. 
{¶16} Once the moving party satisfies its burden, the nonmoving party “may not 

rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, 

by affidavit or as otherwise provided in this rule, must set forth specific facts showing 

that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio 

St.3d 383, 385, 667 N.E.2d 1197 (1996). Doubts must be resolved in favor of the 

nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 

138 (1992). 

{¶17} Appellants argue the trial court misinterpreted Paragraph 4 of the 

Rehabilitation Loan Agreement, which provides in pertinent part that: 

Lender shall release the escrowed funds by check, payable to the Borrower 

and/or the contractor or other appropriate payee who performed the work 

and supplied the material in connection with this Agreement, at such times, 

as the stages of construction are completed. 

{¶18} Appellants claim that Paragraph 4 is subject to more than one interpretation 

of the authorization for release of funds. As such, appellants argue summary judgment 

was improperly granted. On the other hand, FMC argues the trial court properly granted 

summary judgment as no contract ever existed between appellants and FMC. We find 

FMC’s argument more persuasive. 

{¶19} In granting FMC’s motion for summary judgment, the trial court stated that: 

Plaintiff asserted claims against [FMC] for breach of contract and 

negligence. Defendants request summary judgment on the breach of 

contract claim as [FMC] did not enter any contract with CNT Construction, 

rather [FMC] contracted with Angela Bailey only. Plaintiff failed to 

oppose the motion for summary judgment as to the breach of contract claim. 

 The court hereby finds that [FMC] did not breach a contract with CNT 
Construction as the parties never entered a contract and hereby grants 

summary judgment in favor of [FMC] on the breach of contract claim. 

The court further finds that defendant [FMC] is entitled to judgment as a 

matter of law on the negligence claim. To establish a claim for negligence 

there must be the existence of a duty on the part of the defendant. Stamper 

v. Par-Ruchman Home Town Motor Sales, Inc. (1971), 25 Ohio St.2d 1. 

Plaintiff argues that there is an implied duty contained in the HUD contract 

and that defendant breached that duty by making the check payable to 

Angela Bailey only. However, the HUD contract specifically provides that 

[FMC] may make the check in question payable to “the borrower and/or the 

contractor,” thereby authorizing freedom mortgage to make the check 

payable to Angela Bailey only. Rehabilitation Loan Agreement Para. 4. 

Plaintiff may not imply a duty to make the check payable to both CNT 

Construction and Angela Bailey when there is a specific provision in the 

contract allowing [FMC] to make the check payable to Angela Bailey only. 

 The court finds that no genuine issues of material fact remain to be 

litigated and hereby grants summary judgment in favor of the defendant 

[FMC]. 

{¶20} We agree with the trial court. There is no contract between appellants and 

FMC. In fact, in their brief in opposition, appellants conceded that they were not a party 

to a contract with FMC. Rather, the only contract appellants entered into was with 

Bailey. Under this agreement, Bailey and appellants agreed that it is Bailey’s 

responsibility to compensate appellants for the work performed. 

{¶21} It is also undisputed that FMC did not owe appellants any duty, as no 

contract existed between appellants and FMC. In order to be held liable for negligence, 

there must be existence of duty and a breach of that duty. Manifee v. Ohio Welding 

Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). Appellants argue that 

Paragraph 4 of the Rehabilitation Loan Agreement between AEM and Bailey is subject to 

two interpretations, and as a result, there is an issue of fact. However, the language in 

the paragraph is not subject to two interpretations. The loan agreement specifically 
provides that the “Lender shall release the escrowed funds by check, payable to the 

Borrower and/or the contractor or other appropriate payee who performed the work[.]” 

The use of the phrase “and/or” in paragraph 4 does not suggest two interpretations. 

Rather, it indicates that the lender can choose between either the borrower or the 

contractor or both of them. “If a contract is clear and unambiguous, then its 

interpretation is a matter of law and there is no issue of fact to be determined. 

Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 374 N.E.2d 146[.]” 

Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 

322, 474 N.E.2d 271 (1984). 

{¶22} Based on the foregoing, we find that there is no genuine issue of material 

fact and the trial court properly granted summary judgment in FMC’s favor. 

{¶23} Thus, the first assignment of error is overruled. 

AEM

{¶24} In the second assignment of error, appellants argue that the trial court erred 

when it granted summary judgment in AEM’s favor because substantial, unresolved 

disputed facts existed. In support of their argument, appellants rely on the summary 

judgment standard of review and testimony of Bailey and Ficklin. The trial court, 

however, did not grant AEM summary judgment. Rather, in April 2010, AEM filed a 

motion to dismiss pursuant to Civ.R. 12(B)(6), which the trial court granted in September 

2010. 
{¶25} In its motion to dismiss, AEM argued it owed no duty to appellants because 

FMC was responsible for distributing the remaining payments to Bailey. AEM further 

argued that appellants’ breach of contract must also fail because they do not identify any 

contract between AEM and appellants. 

{¶26} In order for a trial court to dismiss a complaint under Civ.R. 12(B)(6) for 

failure to state a claim upon which relief may be granted, it must appear beyond doubt 

that the plaintiff can prove no set of facts in support of his or her claim that would entitle 

the plaintiff to relief. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 

2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing O’Brien v. Univ. Community Tenants 

Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975). 

In resolving a Civ.R. 12(B)(6) motion, a court’s factual review is confined 

to the four corners of the complaint. Within those confines a court 

presumes all factual allegations in the complaint are true, and all reasonable 

inferences from those facts are made in favor of the non-moving party. 

Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666, 653 N.E.2d 1186; Krause 

v. Case Western Reserve Univ., (Dec. 19, 1996), Cuyahoga App. No. 

70526. 

Grady v. Lenders Interactive Servs., 8th Dist. No. 83966, 2004-Ohio-4239, ¶ 6. 

{¶27} In the instant case, appellants seek to reverse the trial court’s judgment 

based on Bailey and Ficklin’s testimony and the terms of the loan agreement. However, 

appellants did not attach or incorporate the loan agreement and the transcripts to their 

complaint. As such, we cannot rely on this information for the purposes of AEM’s 

motion to dismiss. 
{¶28} Based on the facts contained in appellants’ complaint, AEM entered into a 

contract with Bailey only. AEM sold the loan to FMC, who was then required to 

finance the loan and make the payments. FMC issued the remaining payments. 

Accepting these allegations as true, we conclude that appellants did not enter into a 

contract with AEM, and thus, AEM did not breach any contract. We further conclude 

that AEM could not have committed any negligence because it did not owe appellants a 

duty once it sold the mortgage to FMC. 

{¶29} Therefore, the second assignment of error is overruled. 

Case No. CV-671460

{¶30} In the seventh, eighth, and eleventh assignments of error, appellants 

challenge orders in their original case, Case No. CV-671460. This court, however, 

cannot address these assignment of error. As we stated in appellants’ first appeal, under 

“App.R. 4(A) and 12(A)(1)(a), appellants cannot appeal from any decision the trial court 

entered in CV-671460 because their notice of appeal does not refer to it, and an appeal 

from that case would not have been timely filed. Bosco v. Euclid (1974), 38 Ohio 

App.2d 40, 311 N.E.2d 870.” CNT Constr., at ¶ 14. 

{¶31} Thus, the seventh, eighth, and eleventh assignments of error are overruled. 

{¶32} Accordingly, judgment is affirmed. 

It is ordered that appellees recover from appellants costs herein taxed. 

It is ordered that a special mandate be sent to said court 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. 

 

 

MARY EILEEN KILBANE, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

JAMES J. SWEENEY, J., CONCUR