[Cite as Imagine Nation Books, Ltd. v. STG Ents., Inc., 195 Ohio App.3d 286, 2011-Ohio-4639.] 

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96215

IMAGINE NATION BOOKS, LTD.,

APPELLANT, 

v. 

STG ENTERPRISES, INC., ET AL.,

APPELLEES. 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-689361 

BEFORE: Celebrezze, J., Blackmon, P.J., and Jones, J. 

RELEASED AND JOURNALIZED: September 15, 2011 
Goldman & Rosen, Ltd., and James R. Russell Jr.; and 

Faruki Ireland & Cox, P.L.L., and D. Jeffrey Ireland, for appellant. 

David M. Leneghan and K. Scott Carter, for appellees. 

FRANK D. CELEBREZZE JR., Judge. 

{¶ 1} Plaintiff-appellant, Imagine Nation Books, Ltd. (“INB”), brings this appeal 

challenging the trial court’s determination that defendants-appellees, STG Enterprises, Inc. 

(“STG”) and Steven Traina, its only officer, did not breach the terms of an agreement 

between the parties because there was no valid, enforceable contract. INB now argues that 

there was a valid agreement or, in the alternative, that it is entitled to the return of an $8,000 

signing bonus it had advanced to Traina. After a thorough review of the record and law, we 

affirm the decision of the trial court. 

{¶ 2} Traina had been a representative of Books Are Fun (“BAF”) for several years. 

BAF was a competitor of INB in the retail sale of books and other items to children at inschool events. In July 2008, Traina flew to INB’s headquarters in Boulder, Colorado, to 

discuss becoming a representative for INB. While there, Traina signed one of two 

nondisclosure agreements on July 7, 2008.1

 INB’s Vice President of Displays Division, Tony 

Gilio, discussed Traina’s defection from BAF, and the two reached an understanding that 

Traina would become an INB sales representative starting August 20, 2008, in time for the 

new school year. Traina was supplied with a representative agreement with a three-page 

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 The other nondisclosure agreement was signed on June 18, 2008. 
cover letter laying out some key terms of the representative agreement, including its own 

liquidated-damages provision if Traina did not begin work by August 20, 2008. Traina 

signed and returned both of these documents on July 16, 2008. Traina received a check from 

INB for $8,000 dated July 17, 2008, described as a signing bonus. The letter accompanying 

the check was dated June 17, 2008. 

{¶ 3} However, Traina and INB were never able to agree on the counties to which 

Traina would have exclusive sales rights, and an INB representative never signed the 

agreement.2

 Evidence was adduced at trial that Traina had signed on as a representative for 

INB so that INB would not have a sales representative in his area, and he would be free of 

any competition for the beginning of the 2008-2009 school year as he continued to sell for 

BAF. 

{¶ 4} In November 2008, INB arranged to buy all BAF’s inventory and intellectual 

property, an arrangement that was consummated in an asset-purchase agreement. This 

essentially terminated Traina’s relationship with either company. After the asset-purchase 

agreement was signed, Traina inquired about a position with INB, but INB demanded the 

return of the signing bonus.3

 After Traina refused, INB contracted with another 

representative for Cuyahoga and surrounding counties. 

{¶ 5} INB filed suit against Traina and STG on April 6, 2009, asserting various 

claims, including a breach-of-contract claim in its second amended complaint, arguing for 

 2

 A provision of the agreement specifically made signature by both parties necessary for contract formation. 

3

 INB indicated to Traina that it would settle for a return of $6,000. 
liquidated damages under the representative agreement.4

 A three-day trial began on August 

10, 2010, in which INB argued that the representative agreement was a valid, binding 

contract that entitled it to damages under the liquidated-damages provision of the 

representative agreement and the separate liquidated-damages provision in the three-page 

document prefacing the representative agreement, which INB now terms the “letter 

agreement.” Traina argued that this letter agreement was simply a cover sheet to the 

representative agreement and that in any event, an injury excused him from performance in 

accordance with that document. INB also argued for the return of the signing bonus because 

there was no meeting of the minds with regard to the representative agreement. Traina 

countered that the signing bonus was consideration for his agreement not to disclose any of 

INB’s plans or discussions with his then employer, BAF. Importantly, no written agreement 

referenced this bonus. 

{¶ 6} The trial court found that no contract existed between INB and Traina and that 

the signing bonus was in consideration for signing a nondisclosure agreement, as evidenced 

by the letter accompanying the check. This letter was dated June 17, 2008, contemporaneous 

with the execution of a nondisclosure agreement. However, the check was dated July 16, 

2008, which is contemporaneous with Traina’s signature on the representative agreement. 

INB argued that the letter had been misdated. The trial court ruled in favor of Traina and 

STG on these claims. INB then timely appealed, assigning two errors for our review. 

 4

 INB’s second amended complaint asserted ten claims, including a claim for replevin, conversion, tortious 

interference with business relationships, breach of guaranty, unjust enrichment, deceptive trade practices, unfair 

competition, injunctive relief, and two claims for breach of contract. Breach of the representative agreement is the only 

one at issue here. 
Law and Analysis 

I. Judgment Entry Disposing of all Claims

{¶ 7} Although not raised as an issue by the parties, the trial court’s order of decision 

does not specifically address all claims raised in INB’s complaints by name. However, the 

unmentioned claims are resolved by the holding that INB did not prove damages and that 

Traina and STG did not breach various contracts. 

{¶ 8} “For a court order to be final and appealable, it must satisfy the requirements of 

R.C. 2505.02, and if the action involves multiple claims and the order does not enter a 

judgment on all the claims, the order must also satisfy Civ.R. 54(B) by including express 

language that ‘there is no just reason for delay.’ State ex rel. Scruggs v. Sadler, 97 Ohio 

St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5-7. 

{¶ 9} “In the absence of express Civ.R. 54(B) language, an appellate court may not 

review an order disposing of fewer than all claims. Scruggs at ¶ 6. The trial court may revise 

the order until all claims are adjudicated. Civ.R. 54(B). A court may not bypass the 

requirement to include the express language of Civ.R. 54(B) simply by designating the order 

as final. Under Civ.R. 54(B), ‘any order or other form of decision, however designated, 

which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the 

parties’ does not terminate the action without a determination that there is no just reason for 

delay.” Internatl. Bhd. of Elec. Workers, Local Union No. 8 v. Vaughn Industries, L.L.C., 

116 Ohio St.3d 335, 2007-Ohio-6439, 879 N.E.2d 187, ¶ 7-8. 
{¶ 10} The trial court’s order disposes of INB’s trademark claims, but does not 

specifically address the tortious-interference claim. At trial, INB elicited testimony that 

Traina or a party under contract with STG entered schools giving school personnel the 

impression that they were BAF representatives after December 2008. This, INB argued, 

interfered with contracts that INB had with those schools. However, the trial court’s order 

states that “[t]he evidence presented to the Court is unreliable hearsay. Debbie Boyle did not 

testify about the email supposedly proving that Mr. Elias and Mr. Traina were holding 

themselves out as BAF representatives.” 

{¶ 11} The trial court found that STG did not breach its contract with BAF, which also 

disposes of the breach-of-guaranty claim against Traina. Further, the holding that INB did 

not prove its damages renders the unjust-enrichment claims moot. Traina’s counterclaim was 

also disposed of by summary judgment, which merged with the trial court’s final order in this 

case. Therefore, this is a final, appealable order.

II. Breach of Contract

{¶ 12} INB first asserts that “[t]he trial court erred by failing to consider whether there 

was an enforceable letter agreement that appellee[s] breached entitling [INB] to liquidated 

damages in the amount of $11,560.” 

{¶ 13} The interpretation of an unambiguous contract is generally reviewed de novo. 

Cleveland-Akron-Canton Advertising Coop. v. Physician’s Weight Loss Ctrs. of Am., 184 

Ohio App.3d 805, 2009-Ohio-5699, 922 N.E.2d 1012, ¶ 9. However, that is not the situation 

presented here. Reviewing conflicting evidence about whether a party established that it 
should be excused from performance based on a contract provision is a question of fact, not 

of law. This question of fact requires that due deference be afforded to the trial court’s 

determination. Gutbrod v. Schuler, Cuyahoga App. No. 94228, 2010-Ohio-3731, ¶ 17; 

Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73 Ohio St.3d 107, 108, 652 

N.E.2d 684. 

{¶ 14} Traina claims that he was prevented from performing because of a physical 

injury. The existence of such an injury is not a question of contract, but one of evidence 

adduced at trial that includes a weighing of credibility best left to the trier of fact. Seasons 

Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. Therefore, we 

apply an abuse-of-discretion standard to this portion of INB’s argument. To constitute an 

abuse of discretion, the ruling must be unreasonable, arbitrary, or unconscionable. 

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. 

{¶ 15} The letter agreement that INB refers to is a three-page document prefacing the 

representative agreement that highlights some key terms in it, but also sets forth some 

independent provisions. The letter agreement states that Traina will ensure that he is 

contractually free to work as an INB representative prior to August 20, 2008, and that he will 

begin work on that date. Traina asked that a provision be added excusing performance if 

“the early termination [of the agreement] results from [Traina’s] death, injury or 

incapacitation, acts of God, or other circumstances outside of the direct control of [Traina].” 

{¶ 16} Traina presented medical records that he had previously submitted to INB 

demonstrating that a back injury prevented him from lifting heavy items, a necessary duty 
under the INB contract. The trial court found that Traina did not breach the representative 

agreement, if it was enforceable, because it contained the same provision regarding injury. 

This conclusion applies equally to the letter agreement because it contains the same injury 

provision. Therefore, the trial court did not abuse its discretion in finding that Traina did not 

breach the agreement. 

{¶ 17} Although the trial court did not include a separate section in its findings of fact 

and conclusions of law addressing the letter agreement, that is because INB, at trial, referred 

to both simply as the representative agreement. The term “letter agreement” arises only in 

INB’s motion for reconsideration after the verdict. 

{¶ 18} The trial court did not fail to consider the letter agreement as INB now argues. 

This agreement was lumped together with the representative agreement during INB’s 

arguments, and even if it was not, Traina was excused from performance due to injury.5

 

Therefore, INB was not entitled to $11,560 in liquidated damages. 

III. Signing Bonus

{¶ 19} Appellant asserts, “Alternatively, if the letter agreement was not binding, the 

trial court erred by not finding that there was a failure of return consideration6

 for appellant’s 

payment of the $8,000 signing bonus and requiring appellee to repay it.” 

 5

 INB takes issue with the propriety of the evidence that Traina submitted and the fact that no medical expert 

testified about his injuries. However, it is well established that pursuant to Evid.R. 104, the introduction of evidence at 

trial falls within the sound discretion of the trial court. State v. Jacks (1989), 63 Ohio App.3d 200, 207, 578 N.E.2d 512. 

6

 “Failure of consideration exists when a promise has been made to support a contract, but that promise has not 

been performed.” Rhodes v. Rhodes Indus., Inc. (1991), 71 Ohio App.3d 797, 807, 595 N.E.2d 441, citing Franklin v. 

Lick (Apr. 19, 1979), Cuyahoga App. No. 37770. 
{¶ 20} INB again argues that a de novo standard of review should apply to this 

assigned error as a matter of contract interpretation. However, no written agreement refers to 

the signing bonus. This issue requires a weighing of conflicting evidence in the record and is 

one that the trier of fact is in the best position to undertake. Absent an abuse of discretion, 

that determination should not be disturbed on appeal. Also, INB’s arguments in this assigned 

error attack the weight of the evidence rather than the interpretation of an unambiguous 

contract provision. Accordingly, every reasonable presumption of the trial court’s judgments 

should be afforded deference. Seasons Coal, 10 Ohio St.3d at 80. 

{¶ 21} The letter included with the check states that it is a signing bonus, but does not 

specify that it was for beginning employment with INB. It states: 

{¶ 22} “Enclosed please find your signing bonus. 

{¶ 23} “We all look forward to a long prosperous relationship together. 

{¶ 24} “Please call me anytime with any questions, comments or concerns.” 

{¶ 25} INB now argues that the $8,000 constituted a signing bonus as “an inseverable 

part of the cost of business of obtaining a new employee’s service.” Jack P. Friedman, 

Dictionary of Business Terms (4th Ed.2007) 615. While this may be the understood term in 

common parlance, no contract language in the record evidences that the signing bonus was 

for engaging in employment rather than for signing a nondisclosure agreement. 

{¶ 26} The trial court heard the testimony, examined the dates of the documents in 

question, and determined that the $8,000 was consideration for signing the nondisclosure 
agreement, as Traina testified.7

 The letter accompanying the check was dated June 17, 2008, 

one day before a nondisclosure agreement was signed by Traina. The check was dated July 

17, 2008, the day after Traina signed the representative agreement. The conflicting dates of 

the letter and the check and the various agreements created an ambiguity that the trial court 

resolved in Traina’s favor. This decision is supported in the record. Therefore, this 

assignment of error is overruled. 

Judgment affirmed. 

BLACKMON, P.J., and JONES, J., concur. 

 7

 INB points out that Traina admitted that the letter accompanying the check should have been dated sometime 

in July, but Tony Gilio, the author of the letter, testified that it was correctly dated.