CONTRADICT THE TERMS OF THE DOCUMENTS AT ISSUE. ACCORDINGLY, THE PAROL EVIDENCE RULE DOES NOT PROHIBIT THE ADMISSION OF THIS EVIDENCE. THE TRIAL COURT DID NOT ERR IN CONSIDERING THIS EVIDENCE IN DETERMINING WHETHER SHEPARD GRAIN HAD A POTENTIAL DEFENSE OF LACK OF DEFAULT.
{¶ 57} THE FIRST ASSIGNMENT OF ERROR IS OVERRULED.
{¶ 58} "THE TRIAL COURT ERRED IN FINDING THAT SHEPARD ESTABLISHED OPERATIVE FACTS THAT SUPPORT ITS ALLEGED DEFENSES TO FIFTH THIRD'S COMPLAINT BECAUSE ALL OF THE ALLEG[E]D DEFENSES ARE BASED ON INADMISSIBLE PAROLE [SIC] EVIDENCE."
{¶ 59} IN ITS SECOND ASSIGNMENT OF ERROR, FIFTH THIRD ARGUES THAT THE TRIAL COURT ERRED IN CONCLUDING THAT SHEPARD GRAIN COULD PRESENT POTENTIALLY MERITORIOUS DEFENSES TO ITS JUDGMENT. FIFTH THIRD ARGUES THAT THE PROPER APPLICATION OF THE PAROL EVIDENCE RULE EVISCERATES SHEPARD GRAIN'S ABILITY TO ESTABLISH A DEFENSE TO FIFTH THIRD'S RIGHT TO JUDGMENT AGAINST IT, THUS PRECLUDING CIV.R. 60(B) RELIEF.
{¶ 60} IN ESTABLISHING A MERITORIOUS DEFENSE FOR PURPOSES OF ITS CIV.R. 60(B) MOTION, SHEPARD GRAIN WAS REQUIRED "TO SET FORTH WITH SUFFICIENT CLARITY AND PARTICULARITY THE FACTS THAT [IT] CLAIMS ENTITLES [IT] TO RELIEF FROM JUDGMENT IN ORDER THAT THE TRIAL COURT MAY MAKE A [THRESHOLD] DETERMINATION WHETHER THOSE FACTS, IF PROVEN, WOULD ENTITLED IT TO THE RELIEF REQUESTED." SECURITY NATIONAL BANK AND TRUST CO. V. BROOCK (OCT. 20, 1993), CLARK APP. NO. 3006, QUOTING BORROR V. BORROR (OCT. 15, 1987), DARKE APP. NO. 1188-CA. IF THOSE FACTS, IF PROVEN, WOULD NOT, AS A MATTER OF LAW, ENTITLE THE COMPANY TO RELIEF, THEN THE TRIAL COURT COULD PROPERLY DENY THE MOTION. IN ADDITION, SHEPARD GRAIN MUST HAVE PRESENTED MORE THAN MERE GENERAL ALLEGATIONS OR CONCLUSIONS. HOWEVER, THE COMPANY WAS NOT REQUIRED TO PROVE THAT IT WOULD PREVAIL ON THAT DEFENSE. RIECK, SUPRA. THE DETERMINATION AS TO WHETHER SUFFICIENT OPERATIVE FACTS WERE DEMONSTRATED TO JUSTIFY VACATING A JUDGMENT IS LEFT TO THE DISCRETION OF THE TRIAL COURT. BROOCK, SUPRA, CITING DODDRIDGE V. FITZPATRICK (1978), 53 OHIO St.2d 9, 12, 371 N.E.2d 214. WE THEREFORE REVIEW THE TRIAL COURT'S DETERMINATION FOR AN ABUSE OF DISCRETION.
{¶ 61} IN ITS RULING, THE TRIAL COURT INDICATED THAT SHEPARD GRAIN HAD ASSERTED NUMEROUS POTENTIAL DEFENSES - LACK OF DEFAULT, FRAUD, BREACH OF AN ORAL CONTRACT AND PROMISSORY ESTOPPEL. BEGINNING WITH DEFAULT, THE TRIAL COURT FOUND THAT SHEPARD GRAIN HAD NOT PRESENTED OPERATIVE FACTS THAT REFUTED FIFTH THIRD'S EVIDENCE THAT IT WAS IN DEFAULT ON THE REVOLVING CREDIT NOTE. THE COURT NOTED THAT FIFTH THIRD HAD BROUGHT ITS ACTION BASED ON AN ACCELERATION CLAUSE, WHICH WAS TRIGGERED BY THE AMOUNT OF THEIR LOAN EXCEEDING THE BORROWING BASE. THE COURT STATED:
{¶ 62} "IT IS UNDISPUTED THAT THE AMOUNT OF CREDIT AND TERMS OF PAYMENT WERE DETERMINED UNDER THE CONDITIONS OF THE CREDIT FACILITY ORIGINALLY ENTERED INTO IN 1995 AND AMENDED IN DECEMBER, 2002. AS AMENDED, THE CREDIT FACILITY ALLOWED SHEPARD GRAIN TO BORROW $500,000 MORE UNDER THE BORROWING BASE TO BRING SHEPARD GRAIN INTO COMPLIANCE WITH THE TERMS OF THE AGREEMENT.
{¶ 63} "EVEN WITH