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March 5, 2026 Get Citation Alerts Download PDF Add Note

Mitchell Family Trust Fund v. Cole

Ohio Court of Appeals

• Citations: 2026 Ohio 742
• Docket Number: 115340

• Judges: S. Gallagher

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (8.7K)

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Syllabus

Summary judgment; third-party claims; Civ.R. 14(A); transaction or occurrence; derivative; primary claims; vacated; moot. Vacated the trial court's decision granting the third-party defendant's motion for summary judgment and remanded the matter with instructions for the trial court to issue a journal entry deeming the third-party claims moot and the motion for summary judgment on those claims moot. Once summary judgment was rendered in favor of the third-party plaintiff on the primary claims asserted against it, the third-party claims, which were derivative claims, were implicitly rendered moot.

Combined Opinion

[Cite as Mitchell Family Trust Fund v. Cole, 2026-Ohio-742.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

MITCHELL FAMILY TRUST FUND,
ET AL., :

Plaintiffs, :
No. 115340
v. :

BRIAN COLE, ET AL., :

Defendants. :

[Appeal by Turoczy Bonding Company,
Third-Party Plaintiff-Appellant] :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: March 5, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-22-961536

Appearances:

Lewis Brisbois Bisgaard & Smith LLP, and Ryan K. Rubin,
Gregory P. Amend, and Daniel A. Leister, for appellant
Turoczy Bonding Company.

Donnell Mitchell, pro se.
SEAN C. GALLAGHER, P.J.:

Appellant Turoczy Bonding Company (“TBC”) appeals the trial

court’s July 15, 2025 decision granting the motion for summary judgment of

appellee Donnell Mitchell (“Mitchell”) on TBC’s third-party complaint. Upon

review, we vacate that decision, and we remand the matter with instructions for

the trial court to issue a journal entry deeming TBC’s third-party claims against

Mitchell and Mitchell’s motion for summary judgment on those claims moot.

On April 4, 2022, Mitchell Family Trust Fund and Spring Break, LLC

(“the plaintiffs”), filed a complaint against TBC and other defendants. An amended

complaint was later filed against the defendants alleging state and federal claims

for trademark infringement, unfair competition, and copyright infringement.

Cross-claims and counterclaims were also filed, as well as a third-party complaint.

Relevant to this appeal, TBC filed its third-party complaint on

January 23, 2023, against Donnell Mitchell and two other third-party defendants

who are not involved in this appeal.1 On July 15, 2025, the trial court granted

summary judgment in favor of TBC and against the plaintiffs on the primary claims

against TBC under the complaint. The same day, the trial court granted Mitchell’s

motion for summary judgment on the counts asserted under TBC’s third-party

complaint. Other rulings were rendered in the matter.

1 Default judgment was rendered against third-party defendant Turoczy Bail
Bonds, Inc., and the third-party claims against third-party defendant City Bonding, LLC,
were later voluntarily dismissed without prejudice.
Separate appeals were filed in this court. In Mitchell Family Trust

Fund v. Cole, 8th Dist. Cuyahoga No. 115426 (Mar. 5, 2026), which is a companion

case to this appeal, this court affirmed the trial court’s orders granting summary

judgment in favor of TBC and another defendant on the primary claims asserted

under the plaintiffs’ complaint. The appeal before us involves the trial court’s

decision to grant Mitchell’s motion for summary judgment on the claims asserted

against Mitchell under TBC’s third-party complaint.

The third-party complaint sought to impose liability upon Mitchell

for any liability imposed upon TBC arising from the primary claims of the

plaintiffs. To that end, Count 1 of TBC’s third-party complaint asserted a derivative

claim for deceptive trade practices, and Count 2 sought a declaratory judgment in

relation to rights of the parties arising from the alleged wrongful conduct. The trial

court issued a general decision granting the motion under the summary-judgment

standard, but it did not make any factual findings or any declarations as to the

rights of the parties.

Our review of a trial court’s decision is de novo. See State ex rel. Ware

v. Fankhauser, 2024-Ohio-5037, ¶ 15. For purposes of our review, we need only

address TBC’s argument that the trial court committed error by granting Mitchell’s

motion for summary judgment instead of deeming TBC’s third-party claims against

him moot and deeming Mitchell’s motion for summary judgment moot. We find

merit to this argument.
Civil Rule 14 sets forth the procedure for third-party practice in Ohio

and allows for the filing and service of a third-party complaint by a defendant upon

“a person not a party to the action who is or may be liable to him for all or part of

the plaintiff’s claim against him.” Civ.R. 14(A). “This language presupposes that

the liability sought to be ‘passed on’ by the third-party claim arose out of the

transaction or occurrence which is the subject matter of the primary claim.” State

ex rel. Jacobs v. Mun. Court of Franklin Cty., 30 Ohio St.2d 239, 242 (1972). The

alleged right of the defendant to recover on a third-party complaint “must arise

from the plaintiff’s successful prosecution of the main action against [the]

defendant.” Renacci v. Martell, 91 Ohio App.3d 217, 221 (9th Dist. 1993).

Here, TBC maintains that its third-party complaint was derivative of

the plaintiff’s primary claims against TBC. Indeed, TBC alleged in its third-party

complaint that the third-party defendants’ alleged conduct “gives rise to the same

operative facts that are the subject of the claims of the original plaintiffs” and that

the third-party defendants are liable to TBC as a result of their wrongful conduct,

including . . . an amount to satisfy all or part of the liability owed by [TBC] to the

original plaintiffs (if any).” TBC further alleged that the claims set forth in the

third-party complaint arose out of the “the same transaction, occurrence and

conduct that is the subject of the claims alleged by the original plaintiffs in this

action.” Thus, once summary judgment was rendered in favor of TBC on the

primary claims asserted against TBC and it was relieved of any liability on the

primary claims, the third-party claims raised against Mitchell were implicitly
rendered moot. As such, there was no need to determine the rights and liabilities

of the parties under the third-party complaint. In this particular instance, we find

the trial court erred by granting Mitchell’s motion for summary judgment rather

than deeming the third-party claims against Mitchell and Mitchell’s motion for

summary judgment moot.

To the extent that Mitchell asserts that TBC’s claim for a declaratory

judgment should survive as a “standalone claim” after the dismissal of the primary

action, Mitchell fails to provide any legal authority to support his argument.

Therefore, we need not address Mitchell’s argument herein. See App.R.16 (A)(7).

Moreover, it is not this court’s responsibility to present arguments on behalf of a

party. See State v. Quarterman, 2014-Ohio-4034, ¶ 19. Also, we will not address

Mitchell’s judicial estoppel argument, which was not raised in the trial court.

Furthermore, because the third-party claims against Mitchell are moot, we make

no decision on the merits of Mitchell’s motion for summary judgment.

For the reasons stated above, we vacate the trial court’s July 15, 2025

decision granting Mitchell’s motion for summary judgment, and we remand the

matter with instructions for the trial court to issue a journal entry deeming TBC’s

third-party claims against Mitchell moot and deeming Mitchell’s motion for

summary judgment on those claims moot. We limit our decision to the particular

circumstances of the matter before us.

Judgment vacated; case remanded with instructions.
This case is vacated and remanded to the lower court for further proceedings

consistent with this opinion.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas 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.

---

SEAN C. GALLAGHER, PRESIDING JUDGE

DEENA R. CALABRESE, J., and
EILEEN A. GALLAGHER, J., CONCUR