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2022-07-29 03:07:58.769383+00

PER CURIAM. Upon consideration of petitioner’s “Suggestion for the Issuance of a Rule Nisi in Prohibition, a Rule Absolute and a Judgment in Prohibition, and an Alternative Writ of Mandamus, a Peremptory Writ and a Judgment of Mandamus,” the Answer filed by respondent-petitioners was treated as a Petition for a Writ of Quo Warranto. A Rule to Show Cause in Quo Warranto was issued pursuant to Fla. Const., art. V, § 4, F.S.A., requiring respondents to show by what right or warrant they claim to be the lawful Board of Business Regulation of the State of Florida, and the Return was duly filed. The Legislature of the State of Florida in its new Governmental Reorganization Act of 19691 created a Department of Business Regulation and named to head the department a Board of Business Regula*714tion, composed of five members. It provided that their appointment be by the Governor, subject to confirmation by the Senate, and further provided that the Governor may suspend the members of the Board, subject to the removal or reinstatement by the Senate. Fla.Stat. § 20.16 (1969), F.S.A. Pursuant thereto the then Governor Claude R. Kirk, Jr., on July 1, 1969, appointed the respondent-petitioners “for a ternv ending July 1, 1973” (four years). The appointments were duly confirmed by the Senate. In February 1971 the Legislature amended Fla.Stat. § 20.16, F.S.A. to provide that “The members of the board shall serve at the pleasure of the governor,” striking therefrom the original limitation upon the Governor’s power which allowed the Chief Executive only to “suspend, * * * subject to removal or reinstatement by the senate.”2 Thereupon, the new Governor Reubin O’Donovan Askew removed the respondent-petitioners and replaced them with respondents. The creating statute (§ 20.16) made no provision for a four-year term, nor indeed is any term mentioned. The four-year term was entirely the creation of the appointing authority. The only reference we find to a term of four years is the provision of Fla.Const. art. Ill, § 13 (1968) (formerly Fla.Const. art. XVI, § 7, 1885) which provides: “No office shall be created the term of which shall exceed four years except as provided herein.” [Emphasis supplied] 3 There is accordingly nothing of validity which provides for or supports “a term of 4 years” which was here a sheer presumption without foundation. Prior to the 1968 changes in the Constitution, the Court had construed this four-year limitation provision to “imply” a four year term where a statute creating an office failed to specify a term.4 This no longer applies under our 1968 Constitution which expressly delimits the four-year provision by adding “except as provided herein”. Any exception is accordingly spelled out now (as in the case sub judice as hereinafter discussed). The question raised in this respect then is simply: Does the 1971 amendment to § 20.16 5 violate the provision of Fla.Const. art. Ill, § 13 (1968), by creating a continuing public office, the tenure of which might improperly be for a longer period than four years ? It does not. The Board is within the provision of new Art. IV § 6 as one “serving at the pleasure of the Governor.” This is an express exception to the four-year limitation. The new constitutional limitation to 25 executive departments of government in Art. IV § 6 provides that the administration of each shall be “under the direct supervision of the governor, the lieutenant governor, the governor and cabinet, a cabinet member, or an officer or board appointed by and serving at the pleasure of the governor, except: “(a) When provided by law, confirmation by the senate or the approval of *715three members of the cabinet shall be required for appointment to or removal from any designated statutory office. [Emphasis added] “(b) Boards authorized to grant and revoke licenses to engage in regulated occupations shall be assigned to appropriate departments and their members appointed for fixed terms, subject to removal only for cause.”6 [Emphasis added] This section 7 was not a carry-over from ■the Constitution of 1885; it was all new. Under the 1885 Constitution, an officer could not “serve at the pleasure of the governor.” It violated the outright prohibition against creation of any office for a term longer than four years (Art. XVI, § 7 [1885], which is Art. Ill, § 13 of 1968 Const.) State ex rel. Davis v. Botts, 101 Fla. 361, 134 So. 219. The four-year limitation was even construed to “imply” a four-year term, as hereinabove mentioned, where a statute creating an office failed to specify a term.8 Consequently, under the 1885 Constitution, all officers and boards were considered as holding a definite term of office, unless terminated in accordance with applicable provisions for removal. This is no longer true so far as these “exceptions” newly provided for in Art. IV, § 6 are concerned, to “serve at the pleasure of the Governor.” This category which so holds office for an indefinite period, does not violate the four-year limitation since it falls under the new provision “except as provided herein” — by being “provided herein” in Art. IV, § 6, as a “board appointed by and serving at the pleasure of the governor.” Petitioners contend, notwithstanding, that the Board of Business Regulation falls within the exceptions above in subpara-graphs “(a)” and “(b)” and that this prevents the Board from being a “board appointed by and serving at the pleasure of the Governor” and prevents removal of its members without cause. It does not. Under present law (1971 Amendment to § 20.16, Fla.Stat., passed as Ch. 71-2(B)) we agree that the provisions of “(a)” apply to the Board insofar as appointment of the members is concerned — and indeed did initially apply as to removal — in requiring confirmation by the Senate. But of course the 1971 Amendment above eliminated this requirement as to removal. This may change from time to time “when provided by law,” which initiating phrase provides the very flexibility seen here. This subparagraph “(a)” is simply a requirement placed upon any “statutory office” ; it creates no office or board. Respondent/petitioners apparently have assumed that it does, in urging that the Board of Business Regulation is “a board under (a)”. The prefix clause for activating (a) above is “When provided by law.” This, of course, can be provided or not, as the Legislature sees fit, and it further may be provided either for appointment or removal, or both. Initially, the Legislature saw fit so to provide, both for appointment and removal, in its original statute § 20.16(1). It therein expressly provided with regard to this Board that both appointment and removal should be subject to Senate action. This would not be a clear, unfettered right in the Governor and therefore not “at his pleasure” since the Senate may act. Thereafter, by 1971 Amendment, this § 20.-16(1) was amended to provide that the removal was to be “at the pleasure of the governor,” (thus bringing it within the basic language of Art. IV, § 6). This of course did give to the Governor an unimpeded right of removal, truly “at his pleasure.” The actual wording of the amendment is that members of such Board shall “serve” *716at his pleasure. This of course enabled the Governor to remove the existing (“old”) Board without cause or Senate action, because the earlier provision of § 20.16 making removal subject to Senate action was replaced by the substituted, new language in the amendment9 (as it had been provided could be done under § 6(a) of Art. IV “When provided by law”). The amendment struck out the original limitation upon the Governor’s power which had been only to “suspend, subject to removal or reinstatement by the Senate.” Consequently, the constitutional restrictions on suspensions in having to show cause, etc.,10 no longer apply to such removal of this Board. The Board of Business Regulation, under present provisions, in nowise “grants and revokes licenses to engage in regulated occupations.” Therefore, it does not come under subparagraph (b) of Art. IV, § 6, above. The Board stands at the head of the department with sub-agencies (“divisions”) which in fact issue, suspend or revoke those occupational licenses.11 A ruling of the Board does not literally “issue,” “suspend” or “revoke” licenses as contemplated by the language of Art. IV, § 6(b), any more than does a ruling of an appellate court mandating the issuance, suspension or revocation by agencies which hold that authority for actually issuing, suspending or revoking such licenses. In State ex rel. Pettigrew v. Kirk, 243 So.2d 147 (Fla.1971), we prohibited “the Board of Business Regulation” from “issuing new alcoholic beverage licenses based upon population increases * * *.” Such language was proper in view of the members of the old Board having been made the respondents' therein. Such order of course carried through to the Board’s sub-agency, its “division” of beverage which now has the direct authority to issue licenses, subject to review by the Board of Business Regulation. Prohibiting “the Board” was not to infer that it now directly “issues licenses” so as to bring it within the ambit of “(b)” of Art. IV, § 6. The very language of Art. IV, § 6, makes it obvious that this Board, as a department head, is not one of the assignable “boards” mentioned in exception “(b)”. To place this Board within “(b)” would require making it subordinate to itself, since the boards in “(b)” “shall be assigned to appropriate departments * * It can hardly be assigned to itself. Such impossibility of interpretation is proof that the Board of Business Regulation is the one in the “direct supervision” line of heads of departments in the first paragraph of § 6 beginning with “the Governor, the Lieutenant Governor, etc.” The Board of Business Regulation is not in the category of an assignable, fixed term, removal-for-cause type of board contemplated in “(b)” to be assigned to a department, as for example is the State Racing Commission mentioned in Fla.Stat. § 20.16(5), F.S.A. This distinction is also demonstrated in Section (2) of the original statute § 20.16 which outlines the several divisions of the department with regard to such licenses in their respective areas of, e. g., pari-mutuel wagering, hotels and restaurants, beverage, etc. The words “business” and “occupation” have often been used interchangeably; it is noteworthy, however, that the Constitution makes reference only to “occupation.” The Legislature made a very definite distinction between businesses and occupations in the Governmental Reorganization Act in Fla.Stat. § 20 (1969), F.S.A. Section 20.16 established the Department *717of Business Regulation; § 20.30 established the Department of Professional and Occupational Regulation. It can thus be seen from this structuring of our state government that a significant distinction was made between the regulation of business and the regulation of occupations. It is therefore apparent that the Board does not fall within the exception of Fla. Const, art. IV, § 6(b) above. Accordingly, the removal of the old Board without cause was entirely proper under the 1971 amendment to § 20.16. This is precisely what the Legislature intended to allow. It comports with logic and political reality that a Chief Executive would have control over a principal board for effective administration of his office. The people very properly look to their elected head for leadership and operation of their government; similarly, they hold him responsible for any failures thereof and executive action taken or neglected to be taken. The Governor could be powerless, certainly severely crippled, in carrying out his policies, by an uncooperative or ineffective board through which he must act, and yet is prevented from replacing. The Legislature so recognized in providing that the Board serve at his pleasure. In summary, it is our opinion, and we hold, that respondents Richard Pallot, Nelson Italiano, Jack C. Demetree, B. W. Simpkins and James Baroco, Sr., constituting the new Board of Business Regulation, hold valid title to said office. Accordingly, the Rule to Show Cause in Quo War-ranto is discharged and the pending Petitions for Mandamus and Prohibition (which were deferred until ruling was made on Quo Warranto) are now denied. ROBERTS, C. J., and ERVIN, CARLTON, ADKINS, BOYD, McCAIN and DEKLE, JJ., concur. . Fla.Stat. Ch. 20. .“Subsection (1) of section 20.16, Florida Statutes, is amended to read: “20.16 Department of business regulation. — There is created a department of business regulation. “(1) The head of the department of business regulation is the board of business regulation composed of five members. The members of the board shall be appointed by the governor, subject to confirmation by the senate. The members of the board shall serve at the pleasure of the governor, [new] . Fla.Const. art XVI, § 7 (1885) excepted only membership on Board of Regents for “not more than 9 years”. (Deleted from 1968 Const.) . State ex rel. Watson v. Hurlbert, 1945, 155 Fla. 531, 20 So.2d 693. . See footnote 2. . Fla. Const, art. IV § 6 (1968). . Id. . See footnote 4. . See new language of amendment in footnote 2. . Fla.Const., art. IV, § 7 (1968). . This point was considered but not ruled upon in State ex rel. Investment Corporation of South Florida v. Board of Business Regulation, 227 So.2d 674 (Fla.1969) and West Flagler Assoc., Ltd. v. Board of Business Regulation, 241 So.2d 369 (Fla.1970).

2016-07-06 06:36:02.09665+00

Harsha

This is an appeal from a judgment of the Ross County Court of Common Pleas, Juvenile Division, finding appellant delinquent and committing him to the legal custody of the Ohio Department of Youth Services. Appellant contends that the trial court's acceptance of his admission to the complaint without complying with the requirements of Juv.R. 29(D) violated his constitutional rights to due process. We agree and thus vacate appellant's admission and commitment and reverse the order of delinquency entered below. On May 5, 1995, the Ross County Sheriff's Department filed a delinquency complaint against appellant charging him with one count of rape in violation of R.C. 2907.02, an aggravated felony of the first degree. Appellant and his attorney appeared in juvenile court on May 16, 1995, before a referee. At this hearing, the following exchange took place between the referee, appellant, and his attorney: "[ATTORNEY]: Yes your Honor, at this time we wish to waive the reading of the complaint and * * * enter a plea of not true. "[REFEREE]: Okay. Now [appellant] your Attorney Mr. Harrell has indicated to the Court that you wish to deny this charge, is that true? You look puzzled. Do you understand what I'm saying? "[APPELLANT]: Yeh. "[REFEREE]: Okay is that true what your Attorney Mr. Harrell has indicated that you wish to deny the charge? "[APPELLANT]: Yeh. "[REFEREE]: Okay, so you understand there will be a trial? I need a yes or no we are recording here. "[APPELLANT]: Yes." The remainder of the hearing concerned the conditions under which appellant was to be released to his parents' custody pending trial.1 *Page 569 On June 9, 1995, the scheduled trial date, appellant and his counsel again appeared before the juvenile court; although this time before a different referee. At this hearing, the following exchange took place between the referee, appellant, and his attorney: "[REFEREE]: * * * I am advised Mr. Harrell that * * * your client had intended to change his plea, is that correct? "[ATTORNEY]: That is correct your honor. "* * * "[REFEREE]: And [appellant] I understand you wish to change your plea today and admit this complaint, is that correct? Is that correct? "[APPELLANT]: Yeh. "[REFEREE]: And you understand by doing so you waive or give up certain rights. You * * * waive your right to a trial, your right to remain silent and your right to challenge the witnesses and evidence against you. You understand that? "[APPELLANT]: Yes. "[REFEREE]: And is this your voluntary wish today to change your plea? "[APPELLANT]: Yeh." The referee then recited a statement of facts regarding the incident contained in a sheriff's department investigative report attached to the court's copy of the complaint. After this report was read into the record, the following colloquy occurred: "[REFEREE]: * * *Well [appellant] what do you have to say for yourself. Where did you get the idea to do this? "[APPELLANT]: I don't know. "[REFEREE]: What did you tell the deputy? "[APPELLANT]: Told him what I did. "[REFEREE]: Yeh. Told the deputy you got the idea for this from a picture someone drew you at school? "[APPELLANT]: Yeh. "[REFEREE]: Is that true? *Page 570 "[APPELLANT]: Yeh. "[REFEREE]: And this was a seven year old boy and a five year old boy you did this with? "[APPELLANT]: Yeh. "[REFEREE]: I'll ask you again why did you do this? "[APPELLANT]: I don't know." At no time during this adjudicatory hearing did the referee ascertain whether appellant understood the nature of the allegations enumerated in the complaint or the consequences of his admission. See Juv.R. 29(D)(1). The trial court accepted the referee's recommendations and thereby found appellant to be delinquent and ordered the probation department to conduct a presentence investigation and file a written report before disposition. The court further ordered appellant confined in a juvenile detention facility pending disposition after finding that appellant represented a potential risk to others. On July 3, 1995, appellant and his counsel appeared before the referee for the dispositional hearing. Prior to rendering disposition, the referee considered the oral statements made by appellant, his parents and attorney, and written statements submitted on appellant's behalf from two teachers and his principal and a psychological report, as well as the probation department's report. Based on the seriousness of the crime, the referee recommended that appellant be committed to the legal custody of the Ohio Department of Youth Services for a minimum period of one year and a maximum period not to extend past his twenty-first birthday. The trial court approved the referee's recommendations and thereby adopted the referee's report as the court's order. Appellant's counsel filed objections to the referee's report. The trial court sustained the objections, and the referee then entered findings of fact. Appellant's counsel subsequently filed new objections to the referee's report based on these findings of fact. The trial court overruled appellant's new objections, and appellant then timely appealed that judgment. Appellant's first assignment of error states: "The trial court's acceptance of an admission from a mentally handicapped thirteen year old child, without determining whether the admission was made with an understanding of the allegations and the consequences of admission, renders the plea not voluntary, knowing and intelligent, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution *Page 571 and Article One, Section Sixteen of the Ohio Constitution and Ohio Juvenile Rule 29." Appellant argues that the trial court failed to comply with the requirements of Juv.R. 29(D) when it accepted his admission to the rape charge. More specifically, appellant contends that the court failed to determine whether he understood the nature of the allegations and the consequences of entering his admission. In response, appellee submits that "[t]he court properly inferred that appellant understood the nature of the allegations since his attorney waived the reading of the complaint on his client's behalf" during the arraignment hearing on May 16, 1995. In addition, according to appellee, the trial court properly determined that appellant understood the consequences of entering his admission because, during the adjudicatory hearing on June 9, 1995, appellant failed to refute or disagree with the factual statement read by the referee. Juv.R. 29(D) provides: "The court * * * shall not accept an admission without addressing the party personally and determining both of the following: "(1) The party is making the admission voluntarily with understanding of the nature of the allegations and the consequences of the admission; "(2) The party understands that by entering an admission the party is waiving the right to challenge the witnesses and evidence against the party, to remain silent, and to introduce evidence at the adjudicatory hearing." This rule places an affirmative duty upon the juvenile court. Prior to accepting an admission, the juvenile court mustpersonally address the actual party before the court and determine that that party, and not merely the attorney, understands the nature of the allegations and the consequences of entering the admission. Furthermore, the test for the accused delinquent's understanding of the charges is subjective, rather than objective, in that it is not sufficient that a hypothetical reasonable party would understand. The person actually before the court must do so. An admission in a juvenile proceeding pursuant to Juv.R. 29(D) is analogous to a guilty plea made by an adult pursuant to Crim.R. 11(C).2 In re Christopher R. (1995), 101 Ohio App.3d 245,247, 655 N.E.2d 280, 281-282; In re Jenkins (1995),101 Ohio App.3d 177, 179, 655 N.E.2d 238, 239. Both rules require the respective *Page 572 trial courts to make careful inquiries in order to ensure that the admission or guilty plea is entered voluntarily, intelligently, and knowingly. In re Flynn (1995), 101 Ohio App.3d 778,781, 656 N.E.2d 737, 738-739, and In re McKenzie (1995), 102 Ohio App.3d 275, 277, 656 N.E.2d 1377, 1378-1379. Strict adherence to the procedures imposed by these rules is not constitutionally mandated; however, courts have interpreted them as requiring substantial compliance with their provisions. See State v. Billups (1979), 57 Ohio St.2d 31, 38, 11 O.O.3d 150, 153-154, 385 N.E.2d 1308, 1312; Christopher R., supra,101 Ohio App.3d at 247-248, 655 N.E.2d at 281-282; Jenkins, supra,101 Ohio App.3d at 179-180, 655 N.E.2d at 239-240. The failure of a lower court to substantially comply with the requirements of Juv.R. 29 constitutes prejudicial error that requires a reversal of the adjudication in order to permit the party to plead anew. Billups, Christopher R. and Jenkins, supra. Upon a consideration of the entire record of the proceedings before the trial court in this case, we find that the court, in accepting appellant's admission to the charge of rape, did not substantially comply with the requirements of Juv.R. 29(D). As the language of the rule indicates, the court is required to comply with both paragraphs (1) and (2) before accepting the party's admission. Although the referee did recite appellant's constitutional rights, as required by Juv.R. 29(D)(2), the record clearly reveals that the court failed to address either of the requirements contained in Juv.R. 29(D)(1). That is, there was absolutely no inquiry by the court to determine whether appellant understood the nature of the allegations made in the complaint or the consequences of entering an admission to such allegations. In fact, the record fails to reflect whether appellant was ever informed of the possible penalties arising out of an aggravated first-degree felony; therefore, there was no compliance, substantial or otherwise, with the requirements of Juv.R. 29(D)(1).3 See, also, In re Roberts (Mar. 14, 1996), Franklin App. No. 95APF06-725, unreported, 1996 WL 112636, andIn re Jarrell (Dec. 29, 1995), Lake App. No. 95-L-049, unreported, 1995 WL 815342; cf. In re William H. (1995),105 Ohio App.3d 761, 763-764, 664 N.E.2d 1361, 1362-1363. Accordingly, appellant's first assignment of error is sustained. Based on this *Page 573 disposition, appellant's second,4 third,5 and fourth6 assignments of error are overruled as being moot. See App.R. 12(A)(1)(c). Therefore, appellant's admission and commitment are vacated, the trial court's finding of delinquency is reversed, and the cause is remanded to the trial court so that appellant may plead anew. Judgment reversedand cause remanded. PETER B. ABELE, P.J., and KLINE, J., concur. 1 Although it was not assigned as an error on appeal, we note that at no time during this initial hearing did the referee ascertain whether notice requirements had been complied with and, if not, whether appellant waived compliance, or informed appellant of the substance of the complaint, the purpose of the hearing, and the possible consequences of the hearing. See Juv.R. 29(B)(1) and (2); see, also, In re Johnson (1995),106 Ohio App.3d 38, 44-45, 665 N.E.2d 247, 250-251. 2 But, cf., In re Harris (1995), 104 Ohio App.3d 324, 327,662 N.E.2d 34, 36, in which the court held that the acceptance of an admission in juvenile court is not so analogous to accepting a guilty plea in an adult felony case that the requirements of Crim.R. 11(C)(2) apply. 3 In urging reversal, counsel for the appellant emphasizes that appellant suffers various learning disabilities. These contentions play no part in our decision because the trial court did not inquire into appellant's understanding of the allegations and consequences of admission. However, upon remand, appellant's level of comprehension should be considered by the court in applying Juv.R. 29(D). 4 "Kyle was deprived of the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution where Kyle's attorney failed to inform Kyle of any defenses available in his case and failed to inform Kyle of the consequences of his plea." 5 "The trial court abused its discretion when it disregarded numerous expert recommendations for home placement and sent a mentally handicapped thirteen year old child, with no prior juvenile record, to the Ohio Department of Youth Services, contrary to Ohio Revised Code Chapter 2151, the Juvenile Rules of Procedure and in violation of public policy in general." 6 "The trial court erred in adopting the magistrate's report adjudicating Kyle delinquent for rape where the report (1) failed to find any facts to rebut the presumption that a child under the age of fourteen is incapable of committing the crime of rape, [and] (2) failed to find facts to establish the element of `sexual conduct.'"

2016-07-06 06:36:03.438786+00

Houck

The plaintiff in error was tried and convicted in the court of a justice of the peace of Stark county, Ohio, for failing to send his minor child to school, as required by the compulsory school attendance statute of Ohio, and fined $25. Error was prosecuted to the common pleas court, and the judgment of the justice was affirmed. The proceeding here seeks to reverse the judgment of both the lower courts. The conviction was had under favor of Section 12974, General Code of Ohio, which reads: "Whoever being a parent, guardian or other person having care of a child of compulsory school age violates any of the provisions of Sections 7762, 7762-5, 7763, 7765-1, 7773 or 7773-1, General Code, shall upon conviction be fined not less than five dollars and not more than twenty dollars, or the court may in its discretion require the person so *Page 331 convicted to give bond in the sum of one hundred dollars with sureties to the approval of the court, conditioned that he will cause the child under his charge to attend upon instruction as provided by law, and remain as a pupil in the school or class during the term prescribed by law; and upon the failure or refusal of any such parent, guardian or other person to pay said fine and costs or furnish said bond according to the order of the court, then said parents, guardian or other person shall be imprisoned in the county jail not less than ten days nor more than thirty days." The part of the affidavit involved in this case reads: "During said time and then and there unlawfully, willfully, and negligently, did fail to send said minor, Fannie Byler, to school or to the proper grade of school; this being the second offense of this nature within said county." We have read with great care the testimony as contained in the bill of exceptions. The affidavit has not escaped our attention and has received thoughtful consideration. We are not unmindful of the several briefs and citations of authorities which were filed at the time of argument and since, all of which we have read, analyzed, and considered. The time is now here when the court must divest itself of the duty resting upon it. Learned counsel in the case laboriously and faithfully did their part, which has materially aided the court in reaching its conclusion. First. Does the affidavit state an offense in violation of any statutory provision? Second. Does the affidavit, in fact and law, set forth and state a second offense? *Page 332 Third. Is the evidence, as contained in the transcript of the testimony, sufficient to warrant a conviction of a second offense, if it be conceded that such charge is sufficiently stated in the affidavit? As to the first claim, the writer of this opinion is fully satisfied that the affidavit states a first offense. It is not as clear, definite, and certain as it might be, yet, after all, it advises the accused of the offense charged. The legal effect of the language is that Seth Byler, during the period stated in the affidavit, did unlawfully, willfully, and negligently fail to send his minor child to school, etc. It is clear to us that this language fully measures up to all the legal requirements to state a first offense under the statute governing the crime charged. Yet we are free to say that above statute, and others kindred thereto, need some clarification, and we feel they are proper subjects for the present or some future Legislature to take action upon in the way of making them more definite and certain, in order that layman, lawyer, and the courts may be better enabled to determine their exact meaning and application to a given state of facts; and it seems to us that these observations are especially pertinent to the case at bar. Now, as to the second inquiry: Does the affidavit state a second offense in such language as to advise the accused of such fact? We must and do answer this in the negative. We reach this conclusion because our interpretation of the language used to charge same, "this being the second offense of this nature within said county," falls far short of satisfying the law in this respect. This language *Page 333 does not bring home to Seth Byler the fact that he has for the second time been charged with failing, neglecting, etc., to send his minor child to school. The words used are too general to convey such meaning. The charge of a second offense carries with it, in law, if conviction is had, a higher penalty than is imposed for a first offense. Hence it follows that such must be stated in language as clear, and with as much certainty, possibly, as is required in stating a first offense. The language attempting to charge a second offense, we find and hold falls far short of doing so, and is insufficient in law. As to the third ground of error. The evidential facts are wholly and entirely inadequate to sustain the claim of proof of a former conviction of the accused of an offense similar to the one set forth in the affidavit in the present prosecution. It must and will, no doubt, be conceded that a former conviction enters into, is a part of, and one of the elements of, the alleged second offense. If that be true, then, to convict of a second offense, the first offense must be made out by that degree of evidence required by law. A search of the record fails to find such proof. Yet the jury returned a verdict of guilty as charged, which carried with it a finding of a second offense. The magistrate assessed a fine of $25, which is only authorized where conviction of a second offense is had, as provided in Section 12984, General Code. The judgment of conviction and fine by the justice of the peace, as and for a second offense, and the affirmance thereof by the common pleas *Page 334 court, in face of the fact — as we find and hold — that the affidavit does not charge a second offense and there is no legal evidence sustaining a former conviction of a first offense, were and are prejudicially erroneous to plaintiff in error. In view of same this court is not only authorized, but is duty bound, to enter a reversal of these judgments. From what we have said, and from the errors herein pointed out, it may be thought, by counsel for the state, that the cause should be remanded to the justice of the peace for resentence only. The writer of this opinion feels otherwise. One charged with crime is entitled to a fair and impartial trial. Likewise the state should be given an opportunity to present the facts and submit its evidence, in such trial, under the rules of law, based on a proper affidavit or information clearly setting forth the charge made against the one accused of a criminal offense. We are inclined to believe that in order to do substantial justice to Byler and the state of Ohio a new trial should be granted. We reach this conclusion after a most careful and laborious consideration of the record before us and the law of the case. We are aware of the fact that in many respects this may be considered a "pioneer case" under our present compulsory school laws, which, to say the least, are somewhat vague and uncertain in many of their provisions. While this cause may be destined for review by the Supreme Court of Ohio — we know not and are not concerned about it — yet we are satisfied that a new trial will be in the interest of justice and fairness to both the accused and the state of Ohio. *Page 335 The future of this case and its responsibilities now rest with learned counsel. The judgment of conviction in the court of the justice and the affirmance thereof by the common pleas court are reversed, and the cause remanded to the magistrate's court for a new trial. Judgment reversed and cause remanded. SHIELDS and LEMERT, JJ., concur.

2016-07-06 06:36:07.020747+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: On September 12, 1998, the Akron Municipal Court issued its judgment against plaintiff Mark Darulis ("Darulis"), and in favor of Douglas B. Maher ("Maher"), the City of Akron ("Akron"), Judge Monte Mack, Magistrate Thomas F. Lynett, Jim Laria, and Lee Lorkowski (collectively, "court employees"). Darulis has timely appealed this judgment. Darulis has assigned that the trial court erred by: (1) determining that his claims against Maher were barred by resjudicata; (2) denying his motion to strike the defendant's motion to dismiss; (3) determining the city and its employees were immune from liability; and (4) finding the city and its employees were not negligent. This court overrules all four assignments of error. I In 1994 Darulis was convicted in federal court of growing approximately twenty marijuana plants in a federal park. The length of a federal sentence is dependent, in part, on the number of prior convictions. Because of this, Darulis decided to challenge two 1985 convictions for criminal damaging which were premised upon his guilty pleas to the same. According to Darulis, Maher was hired specifically to file a petition for postconviction relief. Maher filed a motion for a new trial pursuant to Crim.R. 33(B), which was subsequently denied, rather than a petition pursuant to R.C. 2953.21. Darulis brought suit against Maher in the small claims division of Akron Municipal Court, in which Monte Mack was the presiding judge. He claimed that because the motion filed by Maher was denied, and the denial affirmed on appeal, and because Maher refused to refile the motion as a petition for postconviction relief that he had "gotten nothing in return" and was entitled to the return of his $500. He has asserted that this initial claim was based on malpractice. Magistrate Lynett heard the case, and found in favor of Maher, stating that Darulis had hired Maher to move for a new trial. Darulis objected to the magistrate's decision, asserting that it was factually inaccurate. In making the objection, he did not provide the trial court with a transcript of the proceeding to support his objection. The trial court adopted the decision of the magistrate. Darulis appealed, providing this court with a copy of the transcript of the proceedings before the magistrate. This court affirmed the judgment of the trial court, holding, in part, that because it was not available to the trial court when it made its decision, we could not consider the transcript on appeal.Darulis v. Maher (May 21, 1997), Summit App. No. 18068, unreported, at 3-4. Darulis then filed a second suit against Maher, on a breach of contract theory, and also against Laria, who was the clerk of the Akron Municipal Court, Lorkowski, who was the deputy clerk of the Akron Municipal Court, Judge Mack, Magistrate Lynett, and the City of Akron for negligence. Darulis has asserted that when he filed his objections to the magistrate's decision in the earlier case he relied upon an incorrect informational sheet that was authorized by Laria, and distributed by Lorkowski. The sheet was titled, "Akron Municipal Court Information Sheet for Small Claims" ("Information Sheet") and provided a list of collection procedures available through the court, and the fees the court charged for those procedures. It also contains a paragraph captioned, "Objection Procedures." That paragraph stated: If you disagree with this decision, you may file an objection in writing, stating the reason you disagree. This must be done within 14 days of the date on the front page of the decision. Mail the written objection along with a fee of $10.00 in the form of a check or money order to: Clerk of Courts, Akron Municipal Court, 217 S. High Street #837, Akron, Ohio 44308. YOU ARE REQUIRED TO SEND A COPY OF YOUR OBJECTION TO THE OPPOSING PARTY. On or about February 26, 1998, the trial court fixed April 2, 1998, as the date for the trial in this second action. On March 31, 1998, Akron and the court employees moved to dismiss the suit pursuant to Civ.R. 12(B). Darulis responded with a "Motion to Strike the Defendants Motion to Dismiss," which he delivered to the court on April 2, 1998, the date of the trial.1 The trial court did not explicitly rule on the motion to dismiss, or on Darulis' response to it. The trial proceeded as scheduled, with Akron and the court employees offering essentially the same defenses they had in their answer and in their motion to dismiss. II Res Judicata Issue preclusion, or collateral estoppel, is a narrow bar to subsequent litigation. It bars relitigation of a single issue that was necessarily decided as part of a previous adjudication. Claim preclusion is much broader. It bars subsequent litigation not only on issues that were actually decided, but also on issues that arise out of a transaction or occurrence that was the subject matter of a previous action in which a valid final judgment was rendered.Grava v. Parkman Twp. (1995), 73 Ohio St. 3d 379, syllabus. Darulis retained attorney Maher to do one task, and was dissatisfied with his work. Darulis sued Maher on what he characterized as a malpractice claim. A final judgment was rendered in the matter. He has now brought a second action over precisely the same incident on a contract theory. Because the contract action arises out of the same transaction or occurrence that gave rise to the malpractice action, in which a valid final judgment was rendered, it is barred by claim preclusion. Darulis' first assignment of error is overruled. Failure to Strike Motion to Dismiss Civ.R. 6(D) provides that "[a] written motion * * * and notice of the hearing thereof shall be served not later than seven days before the time fixed for the hearing, unless a different period is fixed by these rules or by order of the court." Darulis has contended that because the defendants' motion to dismiss was made two days before the trial it should be stricken, pursuant to Civ.R. 6(D). This rule addresses the time period between the notice of a hearing on a motion and the hearing on that same motion. Those circumstances do not exist here. The date of the trial was fixed over a month in advance. The trial was not held for the purpose of ruling on the motion to dismiss, nor was the motion explicitly decided; rather the entire case was decided on its merits. Because the court did not explicitly rule on the motion it is presumed to have denied it. See Newman v. Al Castrucci FordSales, Inc. (1988), 54 Ohio App. 3d 166, 169. Even if the court had explicitly denied or stricken the motion to dismiss, it would not have changed the outcome. Darulis has characterized the motion for dismissal as "the Defendants' only defense." A motion to dismiss is one means of asserting legal defenses to a claim, in a manner that permits the defendant to avoid going to trial if the motion is granted. The denial of a motion to dismiss only precludes Akron and the court employees from succeeding in defending themselves by that motion alone. It does not bar them from articulating, at trial, the same legal defenses that were contained not only in the motion, but also in their answer to his complaint. Additionally, Darulis complains that he was not given the seven days, to which he claims he was entitled, to research the legal issues raised in the motion to dismiss. The circumstances were very different in the case cited by Darulis as supporting this entitlement. In that case, the hearing was for the specific, and sole, purpose of ruling on a motion and was held in the absence of the party who made the motion, before that party even received notice that the hearing had been scheduled. In reForeclosure of Liens for Delinquent Taxes (1992), 79 Ohio App. 3d 766. The April 2, 1998 trial had been scheduled for over a month. Darulis had actual notice of the date, and was present. Darulis was given notice of the substance of the anticipated defense in the defendants' answer to his complaint on January 16, 1998. He had more than a month to research the issues that he knew the defendants would be raising. In addition, the trial court judge repeatedly asked Darulis if he would like time to respond to the arguments presented by Akron and the court employees. He repeatedly declined the offer.2 There is no support in Civ.R. 6(D) for Darulis' assertion that the trial court should have stricken the state's motion to dismiss because it was made two days before the previously scheduled trial on the merits. The inclusion of a particular defense in a motion that is denied, sub silentio, presents no bar to the later presentation of the same defense at trial. Darulis had adequate notice of the date and purpose of the hearing, and repeatedly declined the offer of additional time. Darulis' second assignment of error is overruled. C. Immunity from Liability Pursuant to R.C. 2744 1. Political Subdivision Immunity R.C. 2744.02(A) provides political subdivisions with broad immunity from liability for "injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision[.]" Even though a political subdivision is generally immune, the statute creates exceptions to that immunity if the injury is caused by,inter alia, "the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions." R.C. 2744.02(B)(2). To be a proprietary function, the function must be one of a statutory list of functions, or it must not be, among other things, "[a] function that the general assembly mandates a political subdivision to perform." R.C.2744.01(C)(2)(w). The legislature has defined a political subdivision as "a municipal corporation, township, county, school district, or other body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state."3 R.C.2744.01(F). This definition includes the City of Akron, the Akron Municipal Court and its clerk's office. The operation of the office of the clerk of courts is a function mandated by the general assembly.4 R.C. 1901.31, et seq. Because of this, it is not a proprietary function, and the political subdivisions retain their immunity with respect to the actions of their employees. 2. Employee Immunity Whether or not the political subdivision is liable for an employee's actions, the employee is immune unless liability is specifically imposed by statute or his acts were manifestly outside the scope of his employment or official responsibilities, or were done with malicious purpose, bad faith, or wanton recklessness. The Ohio Supreme Court as has defined recklessness as "knowing or having reason to know * * * that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." Marchetti v. Kalish (1990), 53 Ohio St. 3d 95, 96, fn.2, quoting 2 Restatement of the Law 2d, Torts (1965) 587, Section 500. Although the harm alleged in this case is not physical, the principle endorsed by the Supreme Court, that reckless actions are more extreme than negligent actions, is valid. See Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St. 3d 541, 544, overruled on other grounds,Painter v. Graley (1994), 70 Ohio St. 3d 377, 383. With respect to employee liability, the acts specifically complained of were "providing the Appellant with incomplete written legal instructions" and "hiring negligent workers." The Information Sheet provided to Darulis included an explanation of the nature of a magistrate's decision, which it accompanied, and directions to the parties that were related to their next anticipated interactions with the clerk's office. The instructions explained the court costs and procedures that each party must follow to object to the magistrate's decision or to collect on the judgment. Both the collection of a judgment through the court, and the objection to a magistrate's decision require the payment of fees to and the provision of information or documents to the clerk's office. The Information Sheet is a means of communicating this procedural information to the parties. The Information Sheet contained information that the clerk of courts must routinely provide to parties involved in a small claims case. The instructions were limited to procedural information about the aspects of a small claims case handled by their office. The instructions do not answer questions the parties may have which require legal analysis, nor do they purport to. The omission Darulis has asserted falls into this category. Contrary to his assertion, a transcript is not necessarily required when a party objects to a magistrate's decision. The objecting party must make a legal determination as to whether the objection is solely to an error of law, or whether the objection necessarily depends upon the evidence presented in the proceeding. If the objection is solely to an error of law the objecting party is not required to file a transcript. Rush v. Schlagetter (April 15, 1997), Ross App. No. 96CA2215, unreported. If the objection depends upon the evidence that was presented, then the objecting party must support his objections with a transcript, or one of the legally acceptable substitutes for a transcript. Civ.R. 53(E)(3)(b). The determination of whether the party must file a transcript along with his objection is not a mechanical process, but rather requires substantive legal analysis. The clerk's office was not under a duty to advise Darulis on this matter, nor would it have been proper for it to do so. The drafting and distributing of a procedural instruction sheet, however, was clearly within the scope of employment of an individuals working in the office of the clerk of courts, or in the Akron Municipal Court. Darulis has described the acts of drafting and distributing the Information Sheet, and of hiring the individuals responsible for drafting and distributing it, as negligent. The notation in the margin of his complaint also asserts that it is a negligence complaint. For employees of a political subdivision to be held liable for their actions, they must be done with malicious purpose, in bad faith, or with wanton recklessness. Mere negligence is not sufficient to deprive employees of a political subdivision of the immunity they otherwise enjoy for actions done within the scope of their employment. Even if the court employees acted negligently, they are immune by statute. We overrule his third assignment of error. Negligence Because both the political subdivision and its employees are immune from liability under the circumstances of this case, whether or not the employees' actions were negligent, Darulis' fourth assignment of error is moot. III We overrule Darulis' first assignment of error because this second action against Maher arose from the same transaction or occurrence as the first action against him, and is barred by resjudicata. His second assignment of error is overruled because the defenses contained in the motion to dismiss may still be asserted at trial, even if the motion is denied or stricken. The political subdivision and its employees are immune from liability in the circumstances presented in this case, so we overrule Darulis' third assignment of error. Because the named parties are immune from liability, even if they acted negligently, Darulis' fourth assignment of error is moot. The judgment of the trial court is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the County of Summit, Akron Municipal Court, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to appellant. Exceptions. ___________________________ WILLIAM R. BAIRD FOR THE COURT SLABY, J. WHITMORE, J. CONCUR 1 Because it was made in response to the defendants' motion to dismiss, we construe Darulis' motion to strike as a response to the defendants' motion to dismiss. 2 The following three separate exchanges occurred over the course of the trial: Court: Well your, if I understand, do you want time to respond to it in writing? Darulis: No, I can just tell you verbally, if that is okay with you. Court: In regard to the claim against the others, do you wish to make argument at this point? You'd rather not write a brief, right? Darulis: I want to do it now, today. Court: Do you have any objections to the procedure we've been holding here today? Darulis: No, sir. Court: You know, I want you to be frank, because — you want any time to file any briefs? Darulis: No sir. 3 We do not address the issue raised by the City of Akron that it is not a proper party to answer on behalf of the Akron Municipal Court, because the judgment below did not address the issue and Akron did not cross appeal. 4 Although function is not defined by the R.C. 2744.01, the examples given of functions are very general: operating a hospital, cemetery, utility, sewer system, public entertainment facility, or off-street parking facility. R.C. 2744.01. Operating the office of the clerk of courts, or the court itself, is analogous.

2016-07-06 06:36:07.249424+00

DECISION Plaintiff-appellant, Hogan Transports, Inc., appeals from a judgment of the Franklin County Court of Common Pleas granting the motion for summary judgment of defendant-appellee, Hills Department Stores. Because the trial court properly granted summary judgment to defendant, we affirm. On April 23, 1998, plaintiff filed a complaint against defendant, contending defendant had breached a written lease agreement with plaintiff, entered into on or about July 1, 1996. According to the lease, plaintiff was to provide drivers and tractors to distribute defendant's loads. The complaint alleges defendant failed to pay plaintiff for drivers and tractors furnished in accordance with the lease agreement in spite of plaintiff's having notified defendant of the existence and amount of the debt. Defendant responded with not only an answer, but a motion to dismiss. Specifically, defendant noted that the invoices attached to plaintiff's complaint were dated November 29, 1996. Pointing to the language of Section 11 of the lease agreement which requires that plaintiff must commence any action or proceeding against defendant within one year of the date shown on the freight bill, defendant noted plaintiff failed to commence this action until April 23, 1998. Plaintiff, in turn, responded that it in fact took action within the requisite year by sending a letter to defendant on April 29, 1997, five months after the freight bill. The trial court concluded that (1) the term "action" as used in Section 11 of the lease agreement is ambiguous, (2) due to the ambiguity, the court was required to construe the words according to intention of the parties, and (3) to do so, the court would have to consider matters outside the pleadings, a procedure improper in determining a Civ.R. 12(B)(6) motion. Accordingly, the court overruled defendant's motion. Defendant followed the trial court's decision with a Motion for Summary Judgment, submitting the affidavits of Randy Betz and Bill Flanagan, both of whom stated that "it was the intent of Hills that Section 11 of the transportation agreement place a one (1) year limitation period for Hogan to commence anylegal action or proceeding." (Emphasis sic.) Following full briefing of the motion, the trial court sustained defendant's motion for summary judgment, determining that the term "action" as used in Section 11 of the lease agreement means "legal action." Because plaintiff's legal action was not commenced within one year, the court found plaintiff's action time-barred under plaintiff's lease agreement with defendant. Plaintiff appeals, assigning the following errors: I. THE TRIAL COURT ERRED IN FAILING TO GIVE MEANING TO ALL THE WORDS INSERTED BY THE PARTIES IN THE RELEVANT AGREEMENT AND CONCOMITANTLY RENDERING CERTAIN WORDS MEANINGLESS OR SURPLUSAGE. II. THE TRIAL COURT ERRED BY INSERTING WORDS INTO THE AGREEMENT AT ISSUE THAT WERE NOT USED BY THE PARTIES. III. THE TRIAL COURT ERRED IN FAILING TO INTERPRET THE RELEVANT AGREEMENT PROVISIONS IN THE CONTEXT OF THE ENTIRE AGREEMENT. IV. THE TRIAL COURT ERRED IN FAILING TO RECOGNIZE AN ISSUE OF MATERIAL FACT AND/OR IMPROPERLY DECIDING AN ISSUE OF MATERIAL FACT IN GRANTING HILL'S MOTION FOR SUMMARY JUDGMENT. Because plaintiff's four assignments of error are interrelated, we address them jointly. Together, they assert the trial court erroneously applied commonly used rules of construction to determine that the language of the lease agreement required plaintiff to commence legal action against defendant on any unpaid bills within one year of the date of those bills. Before examining the actual language in the lease agreement, we note the general law to be applied in the context of reviewing a summary judgment decision from the trial court. In accordance with Civ.R. 56, the evidence must be construed most strongly in favor of the non-moving party; summary judgment should be granted only if no genuine issue of material fact exists, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, which is adverse to the non-moving party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64. A motion for summary judgment first forces the moving party to inform the court of the basis of the motion and to identify portions in the record which demonstrate the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St. 3d 280, 296. If the moving party makes that showing, the non-moving party then must produce evidence on any issue for which the party bears the burden of production at trial.Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, paragraph three of the syllabus (Celotex v. Catrett [1986],477 U.S. 317, approved and followed). Within that context, both parties acknowledge that certain rules of construction pertain. If the language of a contract is clear and unambiguous, a court may not resort to construction of that language. Hybud Equipment Corp. v. SphereDrake Ins. Co. (1992), 64 Ohio St. 3d 657; Karabin v. StateAutomobile Mut. Ins. Co. (1984), 10 Ohio St. 3d 163, 167. Only where the language of a contract is unclear or ambiguous or when the circumstances surrounding the agreement invest the language of the contract with a special meaning, will extrinsic evidence be considered in an effort to give effect to the parties' intentions.Shifrin v. Forest City Entr., Inc. (1992), 64 Ohio St. 3d 635, syllabus. Words in a contract must be given their plain and ordinary meaning unless manifest absurdity results, or unless some other meaning is clearly evidenced from the face or overall contents of the document. Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St. 2d 241. The language at issue states: 11. Losses, Damages, Claims. Any action or proceeding by CARRIER to recover charges alleged to be due hereunder, and any action or proceeding by Company to recover overcharges to be due hereunder, shall be commenced not more than one (1) year after date shown on CARRIER's freight bill with respect to shipment to which such undercharges or overcharges are claimed. Although the trial court found the foregoing provision ambiguous, it is not. In an effort to demonstrate ambiguity, plaintiff suggests that "action" in common parlance means "to do anything." To so interpret "action" would render it meaningless. In effect, plaintiff could do virtually anything, whether or not it be known to defendant, to preserve the right to sue on an unpaid bill. Moreover, even if "action" alone is ambiguous, when it is used in conjunction with "commenced," the phrase conveys a single meaning: the initiation of a legal action. Cf. Cohens v.Virginia (1821), 5 L. Ed. 257 (holding that to "commence" a suit is to demand something by the institution of process in a court of justice). Although plaintiff contends that such a reading renders "proceeding" superfluous, the combined use of "action" and "proceeding" is common in legal writing. See, e.g., Section 520, Title 50, U.S. Code; R.C. 1901.131. The trial court, however, determined the language of the lease agreement to be ambiguous. If that be so, the trial court was required to construe the terms so as to give effect to the intentions of the parties. Shifrin, supra. In an effort to do so, the trial court looked to the parties' affidavits. Both Randy Betz and Bill Flanagan stated in their affidavits that defendant intended Section 11 of the agreement to place a one-year limitation period on plaintiff's ability to commence any legal action or proceeding. In response, plaintiff submitted the affidavit of David Hogan. Hogan stated that (1) neither he nor any other employee of plaintiff represented that Section 11 of the agreement required legal action or proceeding, (2) no representative of defendant specifically inquired regarding any aspect of Section 11, (3) plaintiff does not require legal action or proceeding when shippers seek to challenge charges imposed by plaintiff pursuant to Section 11, and (4) had any representative of defendant inquired regarding the meaning of Section 11, that representative would have been instructed that plaintiff does not require formal legal action or proceeding. Hogan's affidavit, however, does not address the issue raised in the summary judgment motion: whether plaintiff intended that something short of legal proceedings would suffice to meet the requirements of Section 11. While the third and fourth points of plaintiff's affidavit come closest to addressing the critical issue, they instead speak to how plaintiff applies the provisions. Because that application may be driven by any number of factors, the third point leaves to speculation the significance of the statement. In the final analysis, because the affidavit plaintiff submitted fails to address the dispositive issue before the trial court, it fails to create a genuine issue of material fact in determining the intention of the parties. The trial court did not err in finding that the parties intended action or proceeding under Section 11 of the agreement to mean "legal action." Accordingly, even if the language is ambiguous and subject to interpretation, the trial court's decision is supported by the evidence before it. Finally, plaintiff relies on Part 1005, Title 49, CFR because the second paragraph of Section 11 of the lease agreement references it, stating: The parties to the agreement acknowledge the application and controlling status of provisions of Part 1005 of Title 49, Code of Federal Regulations and 49 U.S.C. § 11707(e) with regard to claims and action of loss or damage to commodities transported pursuant to the terms and conditions of this agreement, except to the extent modified by this agreement all claims for recovery by SHIPPER as provided herein and as to each shipment, must be filed with CARRIER within nine (9) months of the date of delivery or tender of delivery of that shipment. Pointing specifically to Part 1005.2(b), plaintiff contends the section requires only a "communication in writing sufficient to identify the shipment at issue, an assertion of liability, and a claim for payment of either a specified or determinable amount of money." The lease agreement, however, specifies that those provisions control regarding "claims and action of loss or damage to commodities transported pursuant to the terms and conditions of this agreement." Because the claims at issue do not arise out of loss or damage to transported commodities under the lease, the cited provisions of the lease agreement and of the Code of Federal Regulations do not apply. For the foregoing reasons, plaintiff's four assignments of error are overruled and the judgment of the trial court is affirmed. Judgment affirmed. BROWN and TYACK, JJ., concur.

2016-07-06 06:36:07.592895+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, Eric Otto, appeals from the judgment of the Medina County Court of Common Pleas. We affirm. I. {¶ 2} On September 6, 2006, Appellant, Eric Otto, pled guilty to one count of theft from the elderly, a violation of R.C. 2913.02(B)(3), a felony of the third degree. On October 16, 2006, Otto was sentenced to a five-year term of incarceration, which the court suspended, and five years of community control. Otto was ordered to serve 30 days of incarceration and pay $1000 in restitution. Otto was additionally ordered to pay $600 per month until he paid back the $11, 500 he owed to the victim. Lastly, Otto was ordered *Page 2 not to consume or possess any alcoholic beverages, to attend a minimum of three Alcoholics Anonymous meetings per week, obtain and maintain gainful full-time employment, pay the cost, attorney fees and supervision fees, and refrain from contacting the victim for five years. The trial court informed Otto that if he failed to abide by the terms and conditions of the probation, it would order a five-year prison sentence. Otto did not appeal the sentence. {¶ 3} On February 1, 2007, a capias was issued for Otto for violating conditions of the court's sentencing order. On February 26, 2007, Otto pled not guilty to the probation violation charges. On March 2, 2007, the probation officer initiated a community sanction/violation of supervision complaint. On March 9, 2007, Otto entered an admission to all the violations except one stemming from an incident in Cuyahoga County. The trial court accepted Otto's admissions to the violations and deemed him a probation violator. The trial court imposed a five-year term of incarceration. {¶ 4} Otto timely appealed the trial court's order. II. {¶ 5} Otto's counsel did not raise an assignment of error. In accordance with Anders v. California (1967), 386 U.S. 738, Otto's counsel has asserted that he is unable to find any issue upon which to argue error below. We agree. {¶ 6} Otto filed several responses to his counsel's Anders' brief. However, each response was stricken as untimely. Upon our own full, independent examination of the *Page 3 record before this Court, we find that there are no appealable, non-frivolous issues in this case. See State v. Lowe (Apr. 8, 1998), 9th Dist. No. 97CA006758, at *2. III. {¶ 7} We affirm the judgment of the Medina County Court of Common Pleas. Otto's counsel's motion to withdraw as counsel is hereby granted. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. *Page 4 Costs taxed to Appellant. CARR, P. J. DICKINSON, J. CONCUR *Page 1

2016-07-06 06:36:04.425208+00

OPINION {¶ 1} Defendant-Appellant, James Lee Smith, appeals the judgment of the Hancock County Court of Common Pleas convicting him of failure to register a change of address in violation of R.C. 2950.05(E)(1). On appeal, Smith argues that the amended statute, resulting in an enhanced penalty, violated the Due Process and Ex Post Facto Clauses of the Ohio and United States Constitutions. Based on the following, we affirm the judgment of the trial court. {¶ 2} In January 2003, Smith was convicted of sexual battery, a felony of the third degree, in the Sandusky Court of Common Pleas. The judgment entry provided notice of Smith's duties to register as a "sexually oriented offender" pursuant to R.C. 2950.06. The judgment entry also set forth the penalty for failure to register, pursuant to R.C. 2950.99, which, at that time, was a felony of the fifth degree for Smith's offense. R.C. 2950.99 was subsequently amended, effective January 1, 2004, changing the penalty for failure to register to a felony of the third degree when the original conviction was for a felony of the third degree, as it was for Smith's offense.1 {¶ 3} In April 2006, Smith had registered with the Hancock County Sheriff's Department and advised that he was residing in Findlay, Ohio. *Page 3 {¶ 4} In September 2006, Smith's parole officer notified the sheriffs department that Smith's whereabouts were unknown. Attempts were made to contact Smith, but it was reported that he had left the state and moved to an unknown location. Thereafter, the Adult Parole Authority issued a fugitive warrant. {¶ 5} In October 2006, the Hancock County Grand Jury indicted Smith for one count of failure to register a change of address in violation of R.C. 2950.05(E)(1), a felony of the third degree. {¶ 6} In December 2006, Smith was arrested. {¶ 7} In April 2007, Smith moved to dismiss the indictment or reduce the level of offense, asserting a violation of the Due Process and Ex Post Facto Clauses of the United States Constitution. The trial court overruled the motion. {¶ 8} In May 2007, Smith entered a no contest plea to the charge as indicted, and the trial court subsequently found Smith guilty. The record indicates that the no contest plea was based upon Smith's desire to appeal the denial of his pre-trial motion concerning the correct penalty level for his offense. {¶ 9} In July 2007, the trial court imposed a two-year prison term for the offense, noting that Smith had an extensive record with the criminal justice system dating back to 1979. *Page 4 {¶ 10} It is from this judgment that Smith appeals, 2 presenting the following assignment of error for our review. THE TRIAL COURT COMMITTED AN ERROR OF LAW IN FINDING THAT THE ENHANCED PENALTY DID NOT VIOLATE THE DUE PROCESS AND EX POST FACTO CLAUSES. {¶ 11} On appeal, Smith maintains that he should not be sentenced under amended R.C. 2950.99, which increased the penalties for failing to register as a sex offender. He argues that applying the amended statute to his 2003 classification as a sexually oriented offender is a retroactive application of the law and violates the prohibition against ex post facto laws. Smith further claims that the new penalty violates the Due Process Clause because the only "notice" he received was that failing to register was a fifth degree felony. We disagree with both of Smith's assertions. {¶ 12} In State v. McGhee, 3d Dist. No. 17-06-05, 2006-Ohio-5162, this Court discussed the tests for determining what laws violate the constitutional prohibition against ex post facto legislation, including"`[e]very law that changes the punishment, and inflicts a greaterpunishment, than the law annexed to the *Page 5 crime, when committed.'" Id. at ¶ 11, quoting Rogers v. Tennessee (2001), 532 U.S. 451 (citations omitted) (emphasis sic). {¶ 13} We also discussed how the Ohio Constitution prohibits retroactive laws and nullifies new laws that "`reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time [the statute becomes effective].'" Id. at ¶ 12, quotingBielat v. Bielat, 87 Ohio St.3d 350, 353, 2000-Ohio-451 (citations omitted). {¶ 14} Smith argues that R.C. 2950.99 is an ex post facto law because it changed the penalty for his conduct from a felony of the fifth degree to a felony of the third degree. However, the conduct that R.C. 2950.99 applies to is the failure to register as a sex offender. Smith's conduct, which resulted in his conviction, occurred in 2006, more than two years after the 2004 effective date of amended statute. Therefore, at the time Smith committed his offense, the applicable penalty, under R.C. 2950.99, was a felony of the third degree. This is not a situation where the penalty was changed after his criminal conduct occurred. As such, R.C. 2950.99, as applied to Smith, does not violate the Ex Post Facto Clause. {¶ 15} Smith further argues that the change in penalty violated his due process right to notice, because he claims he was only given notice of the lesser penalty. Again, Smith is mistaken. *Page 6 {¶ 16} Due Process requires notice and a hearing. McGhee,2006-Ohio-5162, ¶ 14. Moreover, it is well-settled that one is presumed to know the law. State v. Parker (1994), 68 Ohio St.3d 283, 286;State v. Pinkney, 36 Ohio St.3d 190, 198 ("It is an ancient maxim that all are conclusively presumed to know the law."). Also, with the exception of constitutional protections against ex post facto laws, "`felons have no reasonable right to expect that their conduct willnever thereafter be made the subject of legislation.'" State v.Cook, 83 Ohio St.3d 404, 412, 1998-Ohio-291, (emphasis sic), quotingState ex rel. Matz v. Brown (1988), 37 Ohio St.3d 279, 281-82. {¶ 17} At his original sentencing and classification for his sexually oriented offense in January 2003, Smith was informed that he had a duty to register as a sexually oriented offender, and that his failure to register would be a violation of the law and carry the sanctions stated in R.C. 2950.99. In 2003, the penalty for failure to register under R.C. 2950.99 would have been a felony of the fifth degree. As noted above, the law was subsequently amended, and the penalty was changed to a felony of the third degree, as applicable to Smith's offense. {¶ 18} At the time of his original offense, Smith had a hearing and was clearly given notice that future conduct could result in an additional penalty, and more specifically, a felony. The fact that the penalty changed from a felony of the fifth degree to a felony of the third degree does not mean that Smith did not *Page 7 receive notice. There are no guarantees that new laws will not be enacted or that laws will not be modified. It is every citizen's responsibility to know the law, and in fact, one is presumed to know the law. See, e.g., Parker, supra. Smith cannot claim that his ignorance of the law amounted to a lack of notice. Furthermore, at his plea hearing, Smith indicated in writing and verbally in open court that he was aware that his offense was a felony of the third degree and could potentially carry a prison sentence of one, two, three, four, or five years. {¶ 19} Accordingly, Smith's assignment of error is overruled. {¶ 20} Having found no errors prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed. SHAW, P.J., and WILLAMOWSKI, J., concur. 1 R.C. 2950.99 was amended by H.B. 140 and S.B. 5 in July 2003, which became effective January 1, 2004. It has subsequently been amended; however, the later amendments did not change the level of the offenses. See R.C. 2950.99(A)(1). 2 Smith originally filed a timely notice of appeal in July 2007, and the trial court issued an order appointing appellate counsel. In October 2007, this Court denied an untimely motion for an extension of time to file the appellate brief and ordered counsel to show cause why the appeal should not be dismissed. On October 25, 2007, this Court dismissed the appeal for want of prosecution due to counsel's failure to respond to the show cause order and remanded the matter to the trial court. In February 2008, the trial court appointed new appellate counsel, who filed an application to reopen the appeal. In April 2008, this Court granted the motion and allowed the appeal. *Page 1

2016-07-06 06:36:04.486297+00

OPINION {¶ 1} This timely appeal comes for consideration upon the record in the trial court and the parties' briefs. Appellant Terry Brill appeals the decision of the Carroll County Court of Common Pleas, Juvenile Division, finding him in contempt of his child support order and sentencing him to thirty days in jail. However, we conclude that Brill has already voluntarily served his sentence as he did not appeal the trial court's entry finding him in contempt and removing the opportunity to purge, nor did he file a motion to stay execution of his sentence with this court. Thus, we dismiss this appeal as moot. {¶ 2} On March 9, 2005, the Carroll County Child Support Enforcement Agency filed a Motion in Contempt claiming that Brill had failed to comply with an administrative order issued by the Carroll County Child Enforcement agency. More specifically, he was charged with failing to make his full monthly payments of $240 per month, failing to provide proof of medical insurance, and failing to appear at the Bureau of Support for an Office Review Hearing. Attached to the motion was a Notice of Hearing directing Brill to appear before the court on April 21, 2005. {¶ 3} The trial court sent an additional notice setting a show cause hearing for April 21, 2005. The notice stated that the court could impose penalties of increasing severity for the first offense, second offense, and third offense. Notably, the court could impose for a first offense a fine of not more than $250.00, a definite term of imprisonment of not more than 30 days in jail or both. A hearing was conducted on the matter. {¶ 4} At the hearing, Brill's attorney explained to the court that Brill was suffering from Crohn's disease and was unable to work except for odd jobs. Brill was going to process a claim for disability based upon the disease. He testified that he was not totally disabled by the disease but was barely supporting himself at the time. He explained that the condition changes based on changes of stress level and diet. In response to Brill's explanation of his disease, the following exchange occurred: {¶ 5} Court: "You know he could have submitted that information to the Child Support Enforcement Agency a long time ago and probably kept them abreast of whatever applications were pending. But when you ignore any correspondence that comes from the Bureau then you do so at your own risk Mr. Brill." {¶ 6} Attorney: "Would the court consider giving him a month to see if he makes any progress on the claim? {¶ 7} Court: "I'm not interested in progress on the claim. I (sic) interested in payment toward child support." {¶ 8} Attorney: "I understand." {¶ 9} Court: "It will be my finding, indeed, that Mr. Brill is in contempt of court for having failed to make any payments. And inasmuch as he claims an excuse, not providing that information to the Child Support Enforcement Agency. Now, he's made all kinds of allegations about the child's mother in trying to secure all kinds of reviews involving this particular case; but he's shown no interest in supporting the children. Now that speaks pretty strongly of his commitment. It will be my sentence today that you will serve thirty days in the Carroll County Jail, Mr. Brill. I'm not sure what the occupancy is now, so I'll give you thirty days to get your house in order. But you be prepared on May 21 to begin serving your jail time. Is that clear?" {¶ 10} Mr. Brill: "Yes, sir." {¶ 11} Attorney: "If he should get some positive word on his disability claim, just give that to the support bureau?" {¶ 12} Court: Uh-huh or money." {¶ 13} Attorney: "Okay." {¶ 14} Mr. Wells: "We will also need medical verification from his doctor that he says he is unable to work." {¶ 15} Attorney: "You understand that?" {¶ 16} Mr. Brill: "Uh-huh." {¶ 17} Attorney: "Do that." {¶ 18} Court: "And any time you don't make the full payment, you need to be down at the bureau talking to them and making suitable arrangements for some alternative. Don't ignore it. Because when you ignore it, you leave me little choice in terms of consequence. Very well. You better go home and mark May 21 on your calendar, Mr. Brill. Don't let it pass." {¶ 19} Brill was found in contempt of court. On April 26, 2005, a judgment entry was filed by the court finding Brill guilty and sentencing him to 30 days in the county jail. However, the last sentence of the entry explains that the jail sentence would be suspended if Brill complied with the Bureau of Support thus affording Brill an opportunity to purge. {¶ 20} On May 21, 2005, Brill began his sentence and completed it upon 30 days. On May 26, 2005 his attorney filed both a stay of execution with the trial court, which was denied, and an appeal with this court. Brill did not attempt to seek a stay of execution from this court pursuant to our Local Rule 1(B) or App. R.7. {¶ 21} Notably, the judgment entry denying the stay of execution once again explains that Brill was given the opportunity to purge his contempt by providing the Bureau a doctor's verification that Brill was unable to work due to his physical condition and to bring himself into compliance with the Bureau. The court concluded that Brill had failed to comply. Consequently, it was ordering him to serve his 30 day sentence at the county jail. {¶ 22} Although it is from the April 26, 2005 judgment entry that Brill now appeals, the actual final appealable order was the May 26, 2005 entry stating that Brill had failed to purge and would now be ordered to serve his sentence. The law is clear: a contempt citation is not a final appealable order if it only imposes a conditional punishment coupled with an opportunity to purge the contempt. Board of Trustees of Concord Twp. V.Baumgardner, 11th Dist. No. 2002-G-2430, 2003-Ohio-4361, ¶ 12. Until the opportunity to purge has been removed, there is no final appealable order." Davis v. Davis (Aug. 20, 2004), 11th Dist. No. 2004-G-2572 at ¶ 6. {¶ 23} Although it would appear that Brill has filed a premature notice of appeal under the Davis holding, pursuant to App.R. 4(C), we will treat Brill's notice of appeal as having been filed immediately after the issuance of the May 26, 2005 judgment. See Buoscio v. Macejko (Feb. 14, 2003), 7th Dist. No. 00-CA-00138. We will next proceed to address Brill's sole assignment of error which states: {¶ 24} "Whether the trial court did err and prejudice Appellant by ordering him to appear at Carroll County Jail on May 21, 2005 without scheduling a second hearing to determine whether or not he had complied with orders of the court issued in the contempt findings of April 21, 2005." {¶ 25} As a preliminary matter, we must determine whether this case is in fact moot. The State of Ohio argues that since Brill has served his 30 days in jail, an argument that they support with an affidavit signed by the sheriff who was in charge of administering the jail sentence, that Brill's argument is now moot. However, the law regarding mootness appears to differ slightly in a civil versus criminal context. Thus, we must first examine whether Brill's jail sentence was a result of civil or criminal contempt. {¶ 26} Contempt proceedings can be described as primarily either civil or criminal, although the proceedings themselves are sui generis. Brown v. Executive 200 (1980), 64 Ohio St.2d 250,253. Civil and criminal contempt proceedings can be distinguished by the purpose and character of the punishment meted out.Carroll v. Detty (1996), 113 Ohio App.3d 708, 711. In civil contempt, the purpose of the punishment is to coerce the contemnor to obey a judicial order for the benefit of a third party. Id. In civil contempt, the, "contemnor is said to carry the keys of his prison in his own pocket [citation omitted] * * * since he will be freed if he agrees to do as ordered." Pugh v.Pugh (1984), 15 Ohio St.3d 136, 139, quoting Brown v.Executive 200, Inc., 253. Because civil contempt sanctions are only conditional sanctions, a civil contempt conviction must provide a means for the contemnor to purge his contempt. Statev. Kilbane (1980), 61 Ohio St.2d 201, 206-207; Carroll at 712. To find civil contempt, a trial court needs only to do so by clear and convincing evidence. Carroll at 711. {¶ 27} On the other hand, criminal contempt sentences, "* * * are punitive in nature and are designed to vindicate the authority of the court [citations omitted]." Kilbane at 205. Criminal contempt sentences are also, "* * * usually characterized by an unconditional prison sentence." Brown at 254. A trial court must find proof of criminal contempt beyond a reasonable doubt. Schader v. Huff (1983), 8 Ohio App.3d 111,112. {¶ 28} In the present case, it is unclear whether the court imposed a sentence for civil contempt or criminal contempt. Failure to pay child support usually involves a finding of civil contempt. Carroll at 712. Moreover, contempt in the context of a hearing pursuant to R.C. § 2705.05 is essentially civil in nature. Brown at 253. However, despite the fact that Brill was given an opportunity to purge, when the time came for Brill to serve his sentence, the trial court stated in its judgment entry denying a stay of execution that Mr. Brill had failed to purge by communicating with the Bureau. Therefore, the court denied the motion to stay. {¶ 29} This action by the court could potentially mean two things. First, it could mean that Brill could be released from prison if he communicated with the Bureau while serving his sentence. Or, alternatively, it could mean that the trial court would be sending him to jail regardless of what actions Brill took in jail. In the first instance, the court would still be finding Brill guilty of civil contempt. And in the second instance, the court would be punishing Brill with no further opportunity to purge which arguably could be considered criminal contempt. {¶ 30} Regardless of which type of contempt was involved in this case, we conclude that Brill completed his jail sentence voluntarily as he never motioned the trial court to set a hearing regarding whether or not he purged, nor did he attempt to stay the execution of his sentence by motioning for relief from this court. For example, the Ohio Supreme Court has held, that "[w]here a defendant, convicted of a criminal offense, has voluntarily paid the fine or completed the sentence for that offense, an appeal is moot when no evidence is offered from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction." State v. Wilson (1975), 41 Ohio St.2d 236, syllabus. {¶ 31} Arguably, Brill could be prejudiced by the fact that each additional finding of contempt made by a court brings harsher and harsher penalties. However, the Ohio Supreme Court rejected this argument in State v. Berndt (Ohio 1987),29 Ohio St.3d 3, where the appellee argued that the existence of this conviction would enhance his penalty in the event he is again convicted of the same offense. The court responded that "this cannot fairly be described as a collateral disability within the meaning of Wilson, supra, since no such disability will exist if appellee remains within the confines of the law." Id. at 4-5. {¶ 32} Similarly, if this court determined that the contempt was civil in nature, courts generally will exercise jurisdictional restraint in cases that do not present actual controversies. Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14. An appeal will be dismissed when, without the fault of any party, circumstances preclude the reviewing court from granting effective relief. James v. Keller, Inc. v. Flaherty (1991),74 Ohio App.3d 788, 791. An appellate court is not required to render an advisory opinion on a moot question or to rule on a question of law that cannot affect matters at issue in a case.Miner v. Witt (1910), 82 Ohio St. 237, 238. {¶ 33} Here, Brill is challenging the fact that he was ordered to report to jail without being given a second hearing to demonstrate that he had in fact purged himself of the contempt. However, since he has already reported to jail and served the entire sentence, there is nothing this court could do to provide relief to Brill on remand. Because this court cannot undo the fact that he has served his sentence, any decision regarding whether or not he was properly ordered to serve his jail sentence would be purely academic. Accordingly, this appeal is dismissed as moot. Donofrio, P.J., concurs. Vukovich, J., concurs.

2016-07-06 06:36:04.53791+00

OPINION {¶ 1} Relator, Tyrell L. Thompson, commenced this original action requesting a writ of mandamus that orders respondent Industrial Commission of Ohio to vacate the November 27, 2007 order of its staff hearing officer declaring an overpayment of *Page 2 temporary total disability compensation and finding that some of the compensation was fraudulently obtained, and to enter an order finding lack of jurisdiction to adjudicate the overpayment and allegation of fraud. Alternatively, relator requests the writ order the commission to vacate its finding that the compensation was fraudulently obtained. {¶ 2} Pursuant to Civ. R. 53 and Section (M), Loc. R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended to this opinion. In his decision, the magistrate concluded (1) neither the limitations upon the commission's continuing jurisdiction nor the doctrine of res judicata preclude the commission from adjudicating the merits of the bureau's September 18, 2007 motion for declaration of an overpayment and a finding of fraud, and (2) some evidence upon which the commission relied does not support the commission's finding that some of the compensation was fraudulently obtained. (Magistrate's Decision, ¶ 44.) Accordingly, the magistrate determined the court should issue a writ. {¶ 3} Respondent Industrial Commission of Ohio filed an objection to the magistrate's conclusions of law: The Magistrate improperly found that staff hearing officer must reiterate the district hearing officer's finding of fraud and references to various facts supporting the decision when the staff hearing officer merely modified the prior order and did not vacate the order. {¶ 4} Contrary to the Industrial Commission's objection, the magistrate did not indicate the staff hearing officer must reiterate the district hearing officer's findings of fact and factual references. Instead, the magistrate reviewed the evidence upon which the staff hearing officer indicated reliance and concluded none of the evidence supported a *Page 3 finding that relator engaged in fraud for the time period at issue. Moreover, even if the magistrate implicitly suggested the conclusion to which the commission objects, any error in that respect is harmless here. The staff hearing officer substantially relies on the same evidence on which the district hearing officer relied. Neither support a finding of fraud for the time period from June 12, 2006 through December 11, 2006. {¶ 5} The district hearing officer relied on the transcript from the March 26, 2006 hearing, the December 11, 2006 progress note, the articles of incorporation for relator's business, and the bureau of compensation warrant dated December 5, 2006 and December 14, 2006. As the magistrate noted, the December 11, 2006 bureau progress note does not reflect fraud but instead relates that relator disclosed to the bureau that he had continued to work as a barber since the date of his injury. Moreover, the warrants are for a period of time that falls outside and subsequent to the period for which the staff hearing officer found fraudulent intent. Those warrants do not support a finding of fraud for a period of time before they were received. Finally, neither the district hearing officer nor the staff hearing officer suggests any portion of the March 26, 2006 hearing transcript which supports a finding of fraud; neither does the commission's objection. {¶ 6} In the final analysis, the evidence on which the commission relied to find a finding of fraud from the time period June 12 through October 3, 2006 does not support such an inference. The Industrial Commission's objection is overruled. {¶ 7} Following independent review pursuant to Civ. R. 53, we find the magistrate has properly determined the pertinent facts and applied the salient law to them. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, we *Page 4 issue a writ of mandamus that orders respondent Industrial Commission of Ohio to vacate its staff hearing officer's order of November 27, 2007 to the extent that it finds relator fraudulently obtained compensation, and to enter an amended order that the entire overpayment is collected pursuant to the non-fraud provisions of R.C. 4123.511(K). Objection overruled; writ granted. BROWN and SADLER, JJ., concur. *Page 5 APPENDIX MAGISTRATE'S DECISION Rendered December 10, 2008 IN MANDAMUS {¶ 8} In this original action, relator, Tyrell L. Thompson, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate the November 27, 2007 order of its staff hearing officer ("SHO") declaring an overpayment of temporary total disability ("TTD") compensation and finding that some of *Page 6 the compensation was fraudulently obtained, and to enter an order finding lack of jurisdiction to adjudicate the overpayment and allegation of fraud. In the alternative, relator requests that the writ order the commission to vacate its finding that the compensation was fraudulently obtained. Findings of Fact: {¶ 9} 1. On June 6, 2006, relator sustained an industrial injury while employed part-time as a "ramp service clerk" for respondent Worldwide Flight Services, Inc. ("Worldwide"), a state-fund employer. On that date, relator injured his lower back while moving a dolly. {¶ 10} 2. On July 11, 2006, relator filed an application for workers' compensation benefits. On the application, Chiropractor Michael Adamets, Jr., D.C., certified that relator had sustained a lumbar sprain and was initially treated for the condition on June 12, 2006. Worldwide refused to certify the industrial claim (No. 06-842552). {¶ 11} 3. On August 1, 2006, the Ohio Bureau of Workers' Compensation ("bureau") mailed an order allowing the claim for "sprain lumbar region." {¶ 12} 4. Worldwide administratively appealed the bureau's August 1, 2006 order. {¶ 13} 5. Following a September 28, 2006 hearing, a district hearing officer ("DHO") issued an order modifying the bureau's August 1, 2006 order. The DHO's order of September 28, 2006 allowed the claim for "sprain lumbar region" and additionally allowed the claim for "L5-S1 disc herniation; S1 radiculopathy." The DHO also awarded TTD compensation beginning June 12, 2006. The DHO's order cites reliance upon the reports of Dr. Adamets and other medical evidence of record. The DHO's order was mailed October 3, 2006. *Page 7 {¶ 14} 6. Worldwide administratively appealed the DHO's order of September 28, 2006. {¶ 15} 7. On October 2, 2006, relator visited Dr. Adamets at his office. In his office note of that date, Dr. Adamets reported: "He is currently employed as a barber." Dr. Adamets' October 2, 2006 office note was filed at the bureau on October 4, 2006. {¶ 16} 8. On a C-84 dated October 4, 2006, Dr. Adamets certified a period of TTD through an estimated return-to-work date of October 31, 2006. The C-84 form poses the following query: "Is the injured worker able to return to other employment including light duty, alternative work, modified work or transitional work?" In response, Dr. Adamets marked the "[n]o" response. The C-84 form also asks the physician to state the clinical findings that are the basis of the recommendation. In response, Dr. Adamets wrote: "See Attached," which refers to his October 2, 2006 office note. {¶ 17} 9. Following a November 8, 2006 hearing, an SHO issued an order that affirms the DHO's order of September 28, 2006. The SHO's order of November 8, 2006 was mailed on November 14, 2006. {¶ 18} 10. Earlier, on October 19, 2006, the bureau mailed to relator a letter stating: The Ohio Bureau of Workers' Compensation (BWC) has issued payment of your temporary total disability benefits. According to workers' compensation law, the Ohio Revised Code, you may continue to receive these benefits as long as medical evidence supports temporary total disability due to your work-related injury. Also, according to workers' compensation law, you are not entitled to temporary total benefits if: *Page 8 [One] You return to any type of work, including full-time, part-time, self-employment and commission work with any employer. This includes employers other than the one you worked for when you were injured. [Two] Your treating physician says you are ready to go back to your former job. [Three] Your former employer or another employer offers you a new job within your physical capabilities. [Four] You have reached maximum medical improvement. {¶ 19} 11. On December 8, 2006, a bureau claims service specialist ("CSS") wrote: Called the [injured worker] home and spoke to his mother. She is going to give him a message to call me. I need to verify with the [injured worker] if he is currently working as a barber as indicated in his visit to his physician. * * * {¶ 20} 12. On December 11, 2006, the CSS wrote: I received a return call from the [injured worker]. He stated to me that he is working as a barber. He stated that in fact, "he has continued to work as a barber all along cutting hair and doing management duties". He further stated that he was only disable[d] from his part time job where he was injured. I explained to him that he was not eligible for TTD Compensation if he was engaged in any form of gainful employment. He was not happy with that information but said he understood. He did express to me that he did not think it was fair that he could not get TTD Compensation just because he continued to work his regular job which had nothing to do with his part time job. * * * {¶ 21} 13. On December 14, 2006, the bureau issued a written referral to the commission. The referral requested: * * * [C]onsideration of the administrator's request that entitlement to temporary total compensation be determined. This recommendation is based on: *Page 9 C-84 application received from Dr. Adamets dated 12/4/06 requesting Temporary Total Disability Compensation benefits from 12/1/06 through 1/1/07. However, the assigned Claims Service Specialist spoke to the Injured Worker on the phone on 12/11/06. At that time, the Injured Worker stated that he had continued to perform his duties as a barber cutting hair and doing management work without interruption after his work related injury at his part-time job with Worldwide Flight Services, Inc. that occurred on 6/6/2006. {¶ 22} 14. Following a January 19, 2007 hearing, a DHO issued an order stating that the bureau's December 14, 2006 "motion" is denied. The DHO's order states "[T]he Injured Worker remains temporarily and totally disabled due to the allowed conditions in this claim." The DHO's order makes no mention of relator's employment as a barber. {¶ 23} 15. Worldwide administratively appealed the DHO's order of January 19, 2007. {¶ 24} 16. In February 2007, Worldwide requested that Matrix Investigations Consulting, Inc. ("Matrix"), conduct surveillance on relator regarding his operation of a barbershop. On February 23, 2007, Matrix conducted surveillance on relator's residence and his barbershop located in Reynoldsburg, Ohio. {¶ 25} 17. A ten-page report from Matrix was filed with the bureau on March 12, 2007. {¶ 26} 18. On March 26, 2007, Worldwide's administrative appeal of the DHO's order of January 19, 2007 was heard by an SHO. The March 26, 2007 hearing was recorded and transcribed for the record. {¶ 27} 19. Earlier, on February 8, 2007, the bureau issued an order finding an overpayment of TTD compensation beginning June 12, 2006 based upon "[i]nformation *Page 10 received from the Injured Worker stating he has continued to work as a barber without interruption since the Date of Injury." {¶ 28} 20. Relator administratively appealed the bureau's order of February 8, 2007. {¶ 29} 21. During the March 26, 2007 hearing before the SHO, the following exchange occurred among the SHO and counsel for relator and Worldwide: [SHO Miller]: If there aren't any preliminary matters, then we're here on the Employer's appeal regarding the request by the Bureau to terminate temporary-total compensation. Mr. Soto, if you want to begin. [Worldwide's counsel, Mr. Soto]: Thanks, Mr. Miller. Mr. Miller, you're correct, we are appealing the order of the district hearing officer dated January 19th of `07. As you know, the district hearing officer found, I guess, adequate evidence to continue payment of temporary-total disability compensation. We're asking that you vacate that order in full. We're also asking that you declare an overpayment of all compensation paid, and I would refer you to the district hearing officer's order dated September 28th of 2006 which identifies the periods of temporary-total disability compensation related to my request for a declaration of an overpayment. And I guess that being said, I'll run a possible procedural issue. I know that Mr. Zamora in effect appealed a notice by the Bureau finding an overpayment subsequent to that January `07 order, and I noticed in the yellow file folder there was what appeared to be a hearing sheet for that issue. I'm not aware of that issue being noticed for hearing. It wasn't on the notice of hearing I received. [SHO]: Not for today. It's actually set for Wednesday of this week. *Page 11 [Worldwide's counsel]: I haven't even received a notice of that hearing. [Relator's counsel, Mr. Zamora]: I haven't received that either. [SHO]: That's not good. Let's see if I've got it in here real fast. They've got it set up on here for being Wednesday now. The question is, Did they send out notices? And it does not appear that they did. But I do have a worksheet and an electronic hearing folder regarding that issue; but as a matter of fact, I don't seem to have a notice. [Worldwide's counsel]: Would it be your position, Mr. Miller, that that issue would have to be considered in a separate hearing? [Relator's counsel]: My position would be that it should be because that would be a DHO and this is an SHO hearing. [SHO]: Well, I mean, obviously I guess I could hear it as a [DHO]. I'm not prohibited in that regard, hadn't really looked at it from that standpoint. So I guess part of it comes down to what you guys are willing to waive notice for or not. [Relator's counsel]: I don't think we're prepared to waive notice on that. I think we'd prefer to have that adjudicated in accordance[.] [SHO]: And I guess I will make note to go up and talk to the hearing administrator today and see if she can figure out what happened to your notice for that hearing; and in all likelihood, it's going to get reset since it's only two days out and there wasn't notice given to the parties. [Worldwide's counsel]: Right. Okay. Well, I respect Mr. Zambora's [sic] position. [SHO]: Sure. [Worldwide's counsel]: I would argue it's within your jurisdiction, but I will not make issue. [SHO]: I guess I'm going to decline to the extent that the issue is the request to terminate as opposed to declaring *Page 12 overpayments, particularly if I've got to step over prior orders that awarded comp and all of that. [Worldwide's counsel]: I appreciate that. Thank you. Then I'll just proceed on the appeal of the DHO ordered [sic] dated January 19th of `07. {¶ 30} 22. Following the March 26, 2007 hearing, the SHO issued an order that vacates the DHO's order of January 19, 2007 and grants the bureau's December 14, 2006 request. The SHO's order of March 26, 2007 states: The order of the District Hearing Officer, from the hearing dated 01/19/2007, is vacated. Therefore, the motion, filed 12/14/2006, is granted to the extent of this order. It is the order of the Staff Hearing Officer that temporary total compensation is terminated effective 12/11/2006 based on the finding that the claimant was working and is therefore, ineligible for the receipt of temporary total compensation. The Staff Hearing Officer finds that the claimant was working, at least as of that date, performing activities as documented in the 12/11/2006 Bureau of Workers' Compensation claims examiner note and later confirmed in the surveillance video and transcript and as testified to by the claimant that he was spending 35 to 45 hours per week operating his barbershop business. Claimant was engaged in activities to run his business including cutting and styling hair, cleaning up the shop and supervising and training other stylists in the proper methods of the operation. Therefore, the Staff Hearing Officer finds that the claimant is no longer entitled to temporary total compensation as of 12/11/2006 as he is found to be engaged in sustained remunerative employment activity such that temporary total compensation is not properly payable. This order is based on the 12/11/2006 Bureau of Workers' Compensation claims examiner note, the surveillance video and transcript and the claimant's testimony at hearing. Therefore, any temporary total compensation paid after 12/11/2006 is found to be overpaid and is ordered recouped pursuant to the non-fraud provisions of Ohio Revised Code section 4123.511(J). *Page 13 {¶ 31} 23. On April 10, 2007, another SHO mailed an order refusing relator's administrative appeal from the SHO's order of March 26, 2007. {¶ 32} 24. On August 23, 2007, a DHO heard relator's administrative appeal from the bureau's order of February 8, 2007. The DHO issued an order finding an overpayment. The DHO also found that "a finding of fraud it not appropriate in this claim, at this time." {¶ 33} 25. The bureau and Worldwide administratively appealed the DHO's order of August 23, 2007. {¶ 34} 26. Following an October 12, 2007 hearing, an SHO issued an order vacating the DHO's order of August 23, 2007. The SHO's order of October 12, 2007 held that the bureau lacked jurisdiction to issue its order of February 8, 2007. The SHO's order of October 12, 2007 explains: * * * [T]he Bureau of Workers' Compensation order dated 02/08/2007 failed to request/continuing jurisdiction prior to issuing this order. The Industrial Commission had previously issued orders on 11/08/2006 and 03/26/2007 by two (2) Staff Hearing Officer's [sic] regarding the payment of temporary total compensation over these same periods. The Bureau of Workers' Compensation failed to request the Industrial Commission to exercise continuing jurisdiction in order to re-litigate the claimant's entitlement to temporary total compensation from 06/12/2006 prior to issuing its order. Therefore, the Bureau of Workers' Compensation did not have jurisdiction absent a request for exercise of continuing jurisdiction to re-adjudicate temporary total compensation paid from 06/12/2006. Therefore, the 02/08/2007 Bureau of Workers' Compensation order and the 08/23/2007 District Hearing Officer order are vacated for lack of jurisdiction. (Emphasis sic.) *Page 14 {¶ 35} 27. On November 2, 2007, another SHO mailed an order refusing Worldwide's administrative appeal from the SHO's order of October 12, 2007. {¶ 36} 28. Earlier, on September 11, 2007, the bureau's Logan Special Investigations Unit ("SIU") issued a report summarizing information from the Matrix report and the transcript of March 26, 2007. The report concluded that relator had been overpaid TTD compensation beginning June 12 through December 10, 2006, and that compensation had been fraudulently obtained. The bureau's SIU report states in part: On March 26, 2007, THOMPSON attended a hearing at the Industrial Commission in front of Staff Hearing Officer Alan Miller. At that time, THOMPSON admitted under oath that he worked part-time as a barber while also being employed at Worldwide Flight Services as a service ramp clerk. THOMPSON advised that after he suffered a work related injury on 6/6/2006, with Worldwide Flight he continued to perform duties as a barber. THOMPSON further stated that in May 2006 he opened his own barber shop by the name T. Lashon at 1768 Brice Rd., Columbus, Ohio. THOMPSON testified he was the sole owner of this business and hired a couple of additional barbers who were self employed, but rented a chair at his location. THOMPSON stated he spent between 35 and 45 hours per week at his barber shop conducting various barber/owner duties such as cutting hair, cleaning and overseeing the operation of the business. Additionally, THOMPSON admitted to reading the warning language on the back of the BWC warrants and understanding he was not allowed to work while receiving temporary total compensation from the BWC. {¶ 37} 29. On September 18, 2007, the bureau moved for a declaration of an overpayment from June 12 to December 10, 2006 "based on new and changed circumstances." The bureau also moved for a finding that the compensation was fraudulently obtained. *Page 15 {¶ 38} 30. Following an October 12, 2007 hearing, a DHO issued an order finding an overpayment for the closed period from June 12 through December 10, 2006, and also finding that the compensation was fraudulently obtained. The DHO ordered the entire overpayment to be recouped pursuant to the "fraud provisions of R.C. 4123.511(K)." {¶ 39} 31. Relator administratively appealed the DHO's order of October 12, 2007. {¶ 40} 32. Following a November 27, 2007 hearing, an SHO issued an order stating: The order of the District Hearing Officer, from the hearing dated 10/12/2007, is modified to the following extent. The Staff Hearing Officer first finds that grounds exist under R.C. 4123.52 for an exercise of continuing jurisdiction in order to vacate prior awards of temporary total compensation awarded in the claim. Specifically, the Staff Hearing Officer finds that there is both a demonstration of fraud on the injured worker's part, which is addressed more fully below, as well as new and changed circumstances related to the Bureau of Workers' Compensation progress noted [sic] dated 12/11/2006, which for the first time revealed the nature and extent of the injured worker's work activity as a barber during a time period for which he received temporary total compensation. The Staff Hearing Officer declares an overpayment of temporary total compensation for the closed period requested by the Bureau's 09/18/2007 C-86 motion, the period from 06/12/2006 through 12/11/2006, the date such compensation had previously been terminated per Staff Hearing Officer order dated 03/26/2007. The Staff Hearing Officer finds that during the closed period, the injured worker was involved in work activity as a barber operating his own business and generating income for that business, while also receiving temporary total compensation under the claim. The Staff Hearing Officer further finds that the injured worker received temporary total compensation for the period from 06/12/2006 through 10/03/2006 as a result of fraudulent *Page 16 activity on his part, as defined in Policy Memo S2 of the Industrial Commission Hearing Officer Manual. As such, the overpayment of temporary total compensation for the period from 06/12/2006 through 10/03/2006 is to be collected pursuant to the fraud provisions of R.C. 4123.511(K). However, the Staff Hearing Officer finds that with regard to the overpayment of temporary total compensation for the period from 10/04/2006 through 12/11/2006, there is insufficient evidence to support a finding of fraud on the injured worker's part relating to his receipt of temporary total compensation. Accordingly, the overpayment of temporary total compensation for the period from 10/04/2006 through 12/11/2006 is to be collected pursuant to the non-fraud provisions of R.C. 4123.511(K). In finding the injured worker was working while receiving temporary total compensation for the period from 06/12/2006 through 12/11/2006, the Staff Hearing Officer relies on the investigation report included with the Administrator's motion, the 12/11/2006 Bureau of Workers' Compensation progress note, and the transcript of the Staff Hearing Officer hearing dated 03/26/2007. The injured worker, who is the owner of his own barber shop, testified at the 03/26/2007 hearing/that during the time in question he was spending approximately 35 to 40 hours per week at his shop operating the business, involved in cutting and styling hair, cleaning the shop, and training and supervising other barbers. The Staff Hearing Officer finds that the nature and extent of the injured worker's activities over the time period in question constitute his direct involvement in the generation of income for his business and preclude his entitlement to temporary total compensation over the period at issue. The Staff Hearing Officer rejects the injured worker's contention that his activities at his barber shop from 06/12/2006 through 12/11/2006 were minimal and geared solely to the protection of his business as an investment, as discussed in the Ohio Supreme Court decisions in State ex rel. American Standard v. Boehler, 99 Ohio St.3d 39, 2003-Ohio-2457 and State ex rel. Ford Motor Co. v. Indus. Comm., 98 Ohio St.3d 20, 2002-Ohio-7038. In contrast, the Staff Hearing Officer finds that the injured worker's activities over the period in question were more similar to the work activities discussed in State ex *Page 17 rel. Rollins v. Indus. Comm., 105 Ohio St.3d 319, 2005-Ohio-1827 and State ex rel. Meade v. Indus. Comm. 2005-Ohio-6206 (Tenth District Court of Appeals) in that the work activities were directly involved in the generation of income and thereby rendered an award of temporary total compensation inappropriate. Therefore, the Staff Hearing Officer declares an overpayment of temporary total compensation for the period from 06/12/2006 through 12/11/2006. The Staff Hearing Officer finds that with regard to the period of temporary total compensation awarded from 06/12/2006 through 10/03/2006, the award resulted from fraudulent activity on the part of the injured worker. Specifically, the Staff Hearing Officer finds that the six elements of fraud, as set forth in the above-cited Hearing Officer Manual policy, have been demonstrated by reliable, probative, and substantial evidence. The Staff Hearing Officer finds that the injured worker concealed from the Bureau of Workers' Compensation the fact that he was working in his own barber shop, that the concealed fact was material to the transaction at hand (the award of temporary total compensation) that the concealment was accomplished with knowledge of the underlying falsity and with the intent to mislead another into reliance, with the Bureau justifiably relying on the concealment in awarding temporary total compensation and with resulting injury, in that the Bureau awarded temporary total compensation to an individual not entitled to it. In making the finding of fraud, the Staff Hearing Officer relies on the 12/11/2006 Bureau progress note, the testimony of the injured worker set forth in the transcript resulting from the 03/26/2007 hearing, and the documentation included in the Bureau's investigation report. Accordingly, the Staff Hearing Officer finds that the overpayment of temporary total compensation for the period from 06/12/2006 through 10/03/2006 is to be collected pursuant to the fraud provisions of R.C. 4123.511(K). The Staff Hearing Officer further finds, however, that for the period of overpayment of temporary total compensation from 10/04/2006 through 12/11/2006, the Bureau has not met the burden of demonstrating fraud on the injured worker's *Page 18 part with regard to receipt of benefits over this period. Specifically, the Staff Hearing Officer finds that there is a lack of evidence that the injured worker intended to misrepresent or conceal his work activities as a barber shop owner from 10/04/2006 through 12/11/2006. The Staff Hearing Officer relies on the 10/02/2006 office note from Dr. Adamets, which was filed on 10/04/2006 and which indicates that the injured worker reported to Dr. Adamets that he was "currently employed as a barber." With the filing of this office note on 10/04/2006, the Bureau was on notice that the injured worker was reporting work activity at the same time he was receiving temporary total compensation; as such, Staff Hearing Officer finds that an intent to misrepresent or conceal his work activity cannot be deemed to exist as of the date of the filing of the note. Accordingly, the Staff Hearing Officer finds that the overpayment of temporary total compensation for the period from 10/04/2006 through 12/11/2006 is to be collected pursuant to the non-fraud provisions of R.C. 4123.511(K). At hearing, the injured worker also contended that based on the [State ex rel. Russell v. Indus. Comm. (1998), 82 Ohio St.3d 516] decision, it was improper for the Staff Hearing Officer order of 03/26/2007 to retroactively terminate temporary total compensation effective 12/11/2006; the injured worker further contended that it was unfair for the Bureau to have a second opportunity to pursue findings of overpayment and fraud by means of its 09/18/2007 motion. The Staff Hearing Officer rejects both contentions. First, the Staff Hearing Officer finds that the injured worker's appeal of the 03/26/2007 Staff Hearing Officer order was refused by order issued 04/10/2007. In any event, the Staff Hearing Officer finds that the Russell decision was not applicable to the termination of temporary total compensation rendered by the 03/26/2007 order for the reason that the issue of maximum medical improvement was not involved. The issue presented to the Staff Hearing Officer at his 03/26/2007 hearing was the injured worker's entitlement to temporary total compensation in light of the evidence revealed by the 12/11/2006 Bureau progress note regarding the injured worker's work activities as a barber. Under such circumstances, a retroactive termination of temporary total compensation was proper. *Page 19 Second, the Staff Hearing Officer finds that the Bureau's C-86 motion of 09/18/2007 is the first attempt by the Bureau to seek declarations of overpayment and fraud regarding the injured worker's receipt of temporary total compensation for the period from 06/12/2006 through 12/11/2006. The only issue before the Staff Hearing Officer at the 03/26/2007 hearing was the injured worker's entitlement to and termination of temporary total compensation, based on the Bureau referral letter dated 12/14/2006. For the reasons set forth above, the Staff Hearing Officer finds an overpayment of temporary total compensation for the period from 06/12/2006 through 12/11/2006 and further finds that the injured worker's receipt of temporary total compensation for a portion of the specified period, from 06/12/2006 through 10/03/2006, resulted from fraudulent activity on his part. The Staff Hearing Officer finds no fraud involved with the injured worker's receipt of temporary total compensation for the period from 10/04/2006 through 12/11/2006. {¶ 41} 33. On December 19, 2007, another SHO mailed an order refusing relator's administrative appeal from the SHO's order of November 27, 2007. {¶ 42} 34. On May 5, 2008, relator, Tyrell L. Thompson, filed this mandamus action. Conclusions of Law: {¶ 43} Two issues are presented: (1) whether the limitations upon the commission's continuing jurisdiction or the doctrine of res judicata precluded the commission from adjudicating the merits of the bureau's September 18, 2007 motion for an overpayment declaration and a finding of fraud; and (2) if the answer to the first issue is in the negative, is the commission's finding that some of the compensation was fraudulently obtained supported by some evidence upon which the commission can rely? *Page 20 {¶ 44} The magistrate finds: (1) neither the limitations upon the commission's continuing jurisdiction nor the doctrine of res judicata precluded the commission from adjudicating the merits of the bureau's September 18, 2007 motion for an overpayment declaration and a finding of fraud; and (2) the commission's finding that some of the compensation was fraudulently obtained is not supported by some evidence upon which the commission relied. {¶ 45} Accordingly, it is the magistrate's decision that this court issue a writ of mandamus, as more fully explained below. {¶ 46} Turning to the first issue, the doctrine of res judicata operates to preclude the re-litigation of a point of law or fact that was at issue in a former action between the same parties and was passed upon by a court of competent jurisdiction. State ex rel. B.O.C. Group,General Motors Corp. v. Indus. Comm. (1991), 58 Ohio St.3d 199, 200. The principle applies to administrative proceedings. Id. The doctrine of res judicata, as applied to administrative proceedings before the commission, is limited by the commission's continuing jurisdiction. Id. {¶ 47} A prior adjudication serves to settle all issues between the parties that could have been raised and decided along with those that were decided. DiPaolo v. DeVictor (1988), 51 Ohio App.3d 166, 171. {¶ 48} The commission's continuing jurisdiction under R.C. 4123.52 is not unlimited. Its prerequisites are: (1) new and changed circumstances; (2) fraud; (3) clear mistake of fact; (4) clear mistake of law; or (5) error by an inferior tribunal. State ex rel. Nicholls v. Indus.Comm. (1998), 81 Ohio St.3d 454. *Page 21 {¶ 49} The Nicholls court suggests that new and changed circumstances also encompasses the rule regarding previously undiscoverable evidence. See, also, State ex rel. Keith v. Indus. Comm. (1991),62 Ohio St.3d 139. {¶ 50} The due process rights conferred by the United States and Ohio Constitutions must be recognized and upheld during administrative proceedings such as those before the commission. State ex rel. Finley v.Dusty Drilling Co., Inc. (1981), 2 Ohio App.3d 323. As applied to proceedings before the commission, "[p]rocedural due process includes the right to a reasonable notice of hearing as well as a reasonable opportunity to be heard." Id. at 324-325. "Furthermore, the right to a reasonable opportunity to be heard includes reasonable notice of the time, date, location and subject matter of the hearing." State ex rel.LTV Steel Co. v. Indus. Comm. (1995), 102 Ohio App.3d 100, 103-104. Without reasonable notice of the hearing's subject matter, a party's right to appear and present well-supported and developed arguments endorsing his position is compromised. {¶ 51} Analysis begins with the exchange recorded at the March 26, 2007 hearing before the SHO. {¶ 52} As previously noted, on December 14, 2006, the bureau issued to the commission a written referral requesting "that entitlement to temporary total compensation be determined." The bureau's December 14, 2006 referral was prompted by relator's December 11, 2006 admission to a bureau CSS that he had continued to work as a barber after his industrial injury. {¶ 53} The bureau's December 14, 2006 referral was initially adjudicated by a DHO following a January 19, 2007 hearing. The March 26, 2007 hearing before an SHO *Page 22 was held on Worldwide's administrative appeal from the DHO's order of January 19, 2007. {¶ 54} At the March 26, 2007 hearing, Worldwide asked the SHO to declare an overpayment of all TTD compensation paid in the claim. {¶ 55} In response to Worldwide's request that the subject matter of the March 26, 2007 hearing include the overpayment issue as well as termination of compensation, relator's counsel took the position that the overpayment issue must be adjudicated in another administrative proceeding. Then, relator's counsel stated on the record that relator was not "prepared to waive notice on that." Thereafter, the SHO indicated that the issue before him at the hearing "is the request to terminate as opposed to declaring overpayments." {¶ 56} In effect, counsel refused to waive relator's due process right to reasonable notice that the subject matter of the March 26, 2007 hearing include the issue of overpayment as well as termination of compensation. Given relator's refusal to waive notice, the hearing went forward solely on the issue of whether the TTD compensation should be terminated. In fact, the SHO's order of March 26, 2007 determined that TTD compensation be terminated as of December 11, 2006. The SHO's order, in keeping with relator's refusal to waive notice of expanded issues, did not adjudicate the overpayment issue. {¶ 57} Given that the March 26, 2007 SHO's order did not adjudicate any other issues related to relator's employment as a barber other than the termination of compensation, the doctrine of res judicata cannot preclude a subsequent administrative adjudication of those issues, i.e., overpayment and fraud. *Page 23 {¶ 58} In the SHO's order of March 26, 2007, the commission was indeed exercising its continuing jurisdiction over its prior award of TTD compensation adjudicated by the SHO's order of November 8, 2006 that affirmed the DHO's order of September 28, 2006. It can be said that the basis for the exercise of continuing jurisdiction to terminate TTD compensation effective December 11, 2006 was the discovery of new evidence, i.e., that relator had continued to be employed as a barber following his industrial injury. The discovery of new evidence can be viewed as new and changed circumstances. See Keith. {¶ 59} While the SHO's order of March 26, 2007 exercises continuing jurisdiction over the prior award of TTD compensation, the SHO's order of March 26, 2007 did not exercise continuing jurisdiction over all the issues raised by the discovery that relator was working and the investigations that followed the bureau's December 11, 2006 discovery. {¶ 60} Given the above analysis, it was not inappropriate for the bureau's September 18, 2007 motion to assert "new and changed circumstances" in requesting an overpayment declaration and a finding of fraud. Nor was it inappropriate for the SHO in his order of November 27, 2007 to find that he had continuing jurisdiction to adjudicate the bureau's motion based upon new and changed circumstances. {¶ 61} Here, relator complains that some of the evidence relied upon by the SHO's order of November 27, 2007 was already in evidence at the March 26, 2007 SHO's hearing. In fact, the SHO's order of November 27, 2007 adjudicating an overpayment and fraud specifically relies upon the transcript of the March 26, 2007 hearing. Relator seems to suggest that there cannot be a proper exercise of continuing jurisdiction at the November 27, 2007 hearing based upon "new and changed circumstances" when the *Page 24 SHO's order of November 27, 2007 relies upon evidence previously considered at the March 26, 2007 hearing. Relator's suggestion is incorrect. {¶ 62} Again, the SHO who issued his order of March 26, 2007 was limited as to the issues he could adjudicate because relator refused to waive notice of the subject matter of the hearing. Given the limited scope of the subject matter before the SHO on March 26, 2007, as agreed to by the parties and the SHO, the commission was not precluded from subsequently adjudicating the subject matter that it could not address on March 26, 2007. Nor was the commission precluded from considering evidence previously considered on March 26, 2007. {¶ 63} Accordingly, the magistrate concludes that neither the limitations upon the commission's continuing jurisdiction nor the doctrine of res judicata precluded the commission from adjudicating the merits of the bureau's September 18, 2007 motion for an overpayment declaration and a finding of fraud. {¶ 64} Turning to the second issue, the elements of fraud are: (1) a representation or, where there is a duty to disclose, concealment of a fact; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (4) with the intent of misleading another into relying upon it; (5) justifiable reliance upon the representation or concealment; and (6) a resulting injury proximately caused by the reliance. Gaines v.Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 55. {¶ 65} It is well settled through caselaw that any remunerative activity outside the former position of employment precludes TTD compensation. State ex rel. Ford Motor Co. v. Indus. Comm.,98 Ohio St.3d 20, 2002-Ohio-7038, at ¶ 18-19. *Page 25 {¶ 66} While the SHO's order of November 27, 2007 indicates that, administratively, relator seriously challenged the claim that his activities related to his barbershop barred TTD compensation, relator does not challenge that claim here. However, relator does challenge the commission's determination that he fraudulently obtained the compensation. {¶ 67} The SHO correctly noted that a finding of fraud requires proof that relator had the intent to mislead the bureau into believing that he was not working. {¶ 68} Based upon relator's October 2, 2006 disclosure to Dr. Adamets that he was currently employed as a barber, which was reflected in Dr. Adamets office note filed with the bureau on October 4, 2006, the SHO determined that intent was lacking as of October 4, 2006 onward. Based on that premise, the SHO found no fraud in the receipt of compensation from October 4 to December 11, 2006. {¶ 69} However, the SHO somehow inferred a fraudulent intent for the period prior to October 4, 2006. The SHO then listed the evidence he relied upon: In making the finding of fraud, the Staff Hearing Officer relies on the 12/11/2006 Bureau progress note, the testimony of the injured worker set forth in the transcript resulting from the 03/26/2007 hearing, and the documentation included in the Bureau's investigation report. {¶ 70} None of the evidence specifically relied upon by the SHO provides support for a fraudulent intent for the period June 12 through October 3, 2006. {¶ 71} To the contrary, the December 11, 2006 bureau "progress note" indicates that relator disclosed to the bureau's CSS during a telephone call that he had continued to work as a barber since the date of injury. *Page 26 {¶ 72} Moreover, the SHO's order fails to identify anything in the March 26, 2007 transcript or the bureau's investigative report to support a fraudulent intent. {¶ 73} The commission, like any other fact finder in any administrative, civil or criminal proceeding, may draw reasonable inferences and rely upon his or her own common sense in evaluating evidence. State ex rel. Supreme Bumpers, Inc. v. Indus. Comm.,98 Ohio St.3d 134, 2002-Ohio-7089, at ¶ 69. {¶ 74} Clearly, relator's October 2, 2006 disclosure to Dr. Adamets that he was currently employed as a barber and his December 11, 2006 disclosure to the bureau's CSS that he had been working as a barber all along provide no reasonable inference that relator had a fraudulent intent prior to October 4, 2006 as the hearing officer found. {¶ 75} The SHO's order of November 27, 2007 states that the DHO's order of October 12, 2007 is "modified." The SHO's order of October 12, 2007 finds fraud for the entire period — from June 12 through December 10, 2006. {¶ 76} Unlike the SHO's order, the DHO's order relies heavily on the fact that relator cashed warrants containing a warning regarding the receipt of compensation. The record contains copies of just two warrants, one dated December 5 and the other dated December 14, 2006. The warning on the backside of the two warrants contained in the record is illegible. However, in the bureau's SIU report, the warning is set forth as follows: WARNING-If this warrant is to compensate you for permanent total disability, temporary total disability, and living maintenance or wage loss not working benefits, you are not entitled to it if you are working[.] Therefore, you should return this warrant to the BWC immediately or risk criminal felony prosecution[.] * * * *Page 27 {¶ 77} The magistrate recognizes that the record contains the bureau letter to relator mailed October 19, 2006 that warns that a claimant is not entitled to TTD benefits if: * * * You return to any type of work, including full-time, part-time, self-employment and commission work with any employer. This includes employers other than the one you worked for when you were injured. {¶ 78} Neither the DHO's order of October 12, 2007 nor the SHO's order of November 27, 2007 states reliance upon the bureau's October 19, 2006 letter as evidence of fraudulent intent. The magistrate notes parenthetically that the letter was mailed 17 days after relator disclosed to Dr. Adamets that he was currently working. {¶ 79} In the magistrate's view, that relator endorsed and cashed the two warrants dated December 5 and December 14, 2006 cannot be some evidence of fraudulent intent when the dates of the warrants fall outside the period that the SHO found fraudulent intent, i.e., from June 12 to October 4, 2006. {¶ 80} Based upon the above analysis, the magistrate finds that the commission's finding of fraud is not supported by the evidence relied upon in the commission's orders. {¶ 81} Accordingly, it is the magistrate's decision that this court issue a writ of mandamus ordering the commission to vacate its SHO's order of November 27, 2007 to the extent that it finds that relator fraudulently obtained compensation, and to enter an amended order that the entire overpayment is to be collected pursuant to the nonfraud provisions of R.C. 4123.511(K). *Page 1

2016-07-06 06:36:04.573028+00

DECISION Plaintiffs-appellants, Kevin Horton and Jamie Robin Taylor, appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment for defendant-appellee Safe Auto Insurance Company ("Safe Auto"). Appellants filed this action alleging breach of contract and bad-faith denial of coverage under an automobile insurance policy issued by Safe Auto. Safe Auto counterclaimed seeking declaratory judgment that there was no coverage provided under the policy. The facts of the matter are largely undisputed. On April 16, 1998, appellants Horton and Taylor purchased a used car from a dealership in South Bend, Indiana. Horton was an Indiana resident but, at that time, Taylor, who would be the primary driver of the car, worked and resided in Michigan. Acting on the advice of the car salesman, appellants telephoned Safe Auto to obtain insurance coverage for the newly purchased vehicle. Safe Auto took the necessary information from appellants by telephone at that time. Appellants represented to Safe Auto that Taylor lived at 3211 Rue Voltaire, Apartment 907, South Bend, Indiana 46615. Safe Auto subsequently mailed a written application for insurance which was returned by appellants again giving the South Bend address for both Horton and Taylor. Taylor's deposition testimony stated that she furnished Horton's address in Indiana as her own because she lacked a permanent address in Michigan at that time, and wanted to ensure that all appropriate correspondence from Safe Auto would go to a stable address. Safe Auto's corporate offices are located in Columbus, Ohio. It is undisputed that Safe Auto is not licensed to write automobile coverage in Michigan. The policy issued to appellants relates in prominent lettering on the cover page the title "INDIANA PERSONAL AUTOMOBILE POLICY." Under the terms of the policy, the application for insurance is specifically incorporated as part of the policy. The application provided the following representation by the applicant: I hereby apply to the Company for a policy of insurance as set forth in this application on the basis of the statements contained herein. I agree that such policy shall be null and void cancelled if such information is false, or misleading, or would materially affect acceptance of the risk by the Company. * * * [Emphasis sic.] The application also provides for the following certification by the applicant: "I also certify that my principal residence/place of vehicle garaging is in Indiana, Eleven (11) or more months each year." The application also inquired whether any driver would drive out of state on a regular basis. To this question, appellants replied "Yes Drives to Michigan daily to work." Finally, the application contains the following statement above the signature line: "I hereby certify that all information contained in this application is accurate and complete." The trial court considered the matter on cross-motions for summary judgment and, based upon the above-quoted policy language, the undisputed fact that Taylor had provided false information on the application, and that Safe Auto was not licensed to write automobile insurance policies in Taylor's state of residence of Michigan, held that the policy could be declared void and coverage denied. Appellants have timely appealed and bring the following single assignment of error: THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT FOR APPELLEE ON THE GROUND THAT THE CONTRACT OF INSURANCE ENTERED INTO BETWEEN APPELLANTS AND APPELLEE WAS RENDERED VOID AB INITIO AS A RESULT OF APPELLANT, JAMIE TAYLOR'S, MISSTATEMENT OF HER ADDRESS ON THE INSURANCE APPLICATION. Initially, we note that this matter was decided on summary judgment. Pursuant to Civ.R. 56(C), summary judgment may be granted only when the trial court determines that there remains no genuine issues of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, that conclusion being adverse to the party opposing the motion. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. Upon appeal, our review of summary judgment is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579. We thus conduct an independent review of the record without deference to the conclusions of the trial court. Jones v. Shelly Co. (1995), 106 Ohio App.3d 440. The issue raised by appellants' assignment of error is whether the insurance contract between appellants and appellee Safe Auto was rendered void ab initio by appellants' misrepresentations of fact on their application for insurance. The consequences of a misstatement by an insured, insofar as whether the insurance policy may be rendered void ab initio thereby, was addressed by the Ohio Supreme Court in the leading case of Allstate Ins. Co. v. Boggs (1971), 27 Ohio St.2d 216, 218-219: Statements by an insured fall into two classes — those which constitute warranties, and those which constitute repre-sentations. The consequences of a misstatement of fact by an insured are entirely different, depending on whether the statement is a warranty or a representation. If the statement is a warranty, a misstatement of fact voids the policy ab initio. However, if the statement is a representation, a misstatement by the insured will render the policy voidable, if it is fraudulently made and the fact is material to the risk, but is does not void the policy ab initio. In the law of insurance, a representation is a statement made prior to the issuance of the policy which tends to cause the insurer to assume the risk. A warranty is a statement, description or undertaking by the insured of a material fact either appearing on the face of the policy or in another instrument specifically incorporated in the policy. * * * The insurer's decision to incorporate the statement in or to omit it from the policy generally controls whether the statement is a warranty or a representation. However, the mere fact that a statement of an insured is incorporated in a policy does not necessarily make such statement a warranty. Courts do not favor warranties, or forfeitures from the breach thereof, and a statement as to conditions does not constitute a warranty unless the language of the policy, construed strictly against the insurer, requires such an interpretation. The fundamental principle is that inasmuch as policies of insurance are in the language selected by the insurer they are to be construed strictly against the insurer, and liberally in favor of the insured. * * * In other words, an insurer is bound by the provisions which he chooses to incorporate in his policy. If it is his purpose to provide that a misstatement by the insured shall render the policy void ab initio, such facts must appear clearly and unambiguously from the terms of the policy. Examining the language contained in the insurance application, which by terms of the policy was incorporated into the insurance contract, we find no ambiguity in the statement that the policy is issued based on the statements contained in the application, and the policy would be "null and void cancelled if such information is false, or misleading, or would materially effect acceptance of risk by the company." While appellants propose various alternative interpretations of the phrase "null and void cancelled," such as the policy would be cancelled only at the time the insurance company learned of any misstatements by the applicant, rather than void ab initio, giving the words employed their plain meaning, we find no ambiguity in this expression defining the consequences of false or misleading information furnished by the applicants. Thus, under the first prong of Boggs, the insurer clearly expressed the decision to incorporate statements by the insured into the policy. The language employed in the Safe Auto policy thus satisfies the first part of the Boggs test, which requires that a representation either plainly appear on the policy or be plainly incorporated into it to be a warranty, and satisfies the second part of the test, requiring a plain warning that a misstatement as to the warranty will render the policy void from its inception. The language "null and void cancelled" is sufficiently plain warning that misstatements on the application, relating to Taylor's address and the place of garaging of the vehicle, will render the policy ineffective from its inception. The case is thus distinguishable from State Farm Fire Cas. Co. v. Davidson (1993), 87 Ohio App.3d 101, relied upon by appellants, in which the court held that no such plain warning was found in the policy. Based upon the foregoing we find that the trial court did not err when it held that there remained no material issue of fact as to whether the Safe Auto policy was void ab initio based upon the misstatements made by appellants in applying for the insurance. Appellants' single assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas granting summary judgment to Safe Auto Insurance Company is affirmed. ______________________________________ DESHLER, J. TYACK and LAZARUS, JJ., concur.

2016-07-06 06:36:04.610529+00

OPINION {¶ 1} Plaintiff-appellant Jeffrey S. Wilson ("Wilson") brings this appeal from the judgment of the Court of Common Pleas of Union County. {¶ 2} In 1998, Wilson and defendant-appellee Rich Jenkins ("Jenkins") owned separate well established insurance agencies. On December 21, 1998, Wilson and Jenkins merged their businesses under the name G G Insurance, Inc. The parties agreed that they would be equal shareholders in the business. In the spring of 2000, the parties decided to dissolve the corporation. On November 21, 2000, Wilson sought a judicial decree for dissolution of the corporation. The trial court appointed a receiver for the corporation on November 30, 2000. A bench trial was held on December 21, 2000. At the trial, the trial court informed the parties that each side would have 45 minutes to present a case-in-chief. Each side was then given 15 minutes of rebuttal time. Neither side objected to this procedure. At the conclusion of the cases, each side submitted post-trial briefs. Subsequent to this, the trial court entered an order that the corporation's assets be sold. On June 3, 2004, the trial court entered its judgment as to matters between Wilson and Jenkins. However, that entry did not address the claims against a third defendant, Trent Bradford ("Bradford"). Wilson filed a request for findings of fact and conclusions of law on June 10, 2004. Additionally, the trial court did not find that there was no just reason for delay, which prevented this order from being final. On August 16, 2004, the trial court filed the findings of fact and conclusions. On September 9, 2004, the trial court filed a "nunc pro tunc entry" disposing of all remaining issues. Wilson appeals from these judgments and raises the following assignments of error. The trial court erred to the prejudice of [Wilson] by allowinginadequate time at trial, only fifty-five (sic) minutes, to presentevidence. The trial court erred to the prejudice of [Wilson] by failing to grantrelief for [Jenkins'] breach of the parties' buy-in/merger agreement. The trial court erred to the prejudice of [Wilson] after dissolving andwinding up the corporation by failing to allocate one half of theremaining assets to [Wilson] who owned one half of the stock. The trial court erred to the prejudice of [Wilson] when dissolving thetwo equal owner/operators' merged company by allowing [Jenkins] torecover his pre-merger phone number while prohibiting Wilson fromrecovering his pre-merger phone number. The trial court erred to the prejudice of [Wilson] by failing torequire [Jenkins] to account for assets and opportunities usurped fromthe corporation during the pendency of the action and prior todissolution. The trial court erred to the prejudice of [Wilson] by failing to grantjudgment against [Trent Bradford] who converted corporation resources tohis use and interfered with the buy-in/merger agreement. {¶ 3} This court notes that although the trial court titled the September 9, 2004, judgment entry as a nunc pro tunc entry, it was not used to correct an error, but to add additional information. The title of a document is not determinative of what the document is. St. VincentCharity Hosp. v. Mintz (1987), 33 Ohio St.3d 121, 515 N.E.2d 917. Since the original entry did not dispose of all issues and parties and did not contain the language necessary to make it a final entry, it was not a final appealable order until the September 9, 2004, entry was filed. Thus, the appeal is timely and this court has jurisdiction to review the matter. {¶ 4} In the first assignment of error, Wilson claims the trial court erred by limiting the time for the presentation of the evidence. However, this court notes that Wilson did not object to the procedures set forth or request a continuance until after his rebuttal time. After the closing arguments, Wilson did make a proffer of exhibits he would have added and proffered additional questions he would have asked Jenkins. Jenkins was called as a witness by Wilson and testified. At the conclusion of the questioning, Wilson's attorney stated that he had no more questions to ask Jenkins. The exhibits could have been identified by Jenkins and/or Wilson when they testified. Since Wilson had the opportunity to question the witnesses and had released them, this court does not see how he was prejudiced by the trial court not permitting him to obtain additional testimony from them. Thus, the first assignment of error is overruled. {¶ 5} The remaining assignments of error raise the question as to whether the trial court's findings of fact and conclusions of law were supported by the evidence. The second assignment of error claims that the trial court erred in not finding that Jenkins breached the merger agreement. In his brief, Wilson claims that Jenkins breached the agreement by failing to assign Jenkins' phone number to the corporation, failing to assign books of business to the corporation, failed to equally compensate the parties, prevented Wilson from accessing records, failed to equally share commissions, and insisted on dissolving the corporation. This court notes that the trial court concluded that Jenkins wrongly used corporate funds to pay for health insurance and did not equally split all commissions. The trial court then ordered Jenkins to reimburse the corporation for the amounts that did not belong to him. Thus, the trial court did not err concerning those issues. {¶ 6} Wilson also claims that Jenkins failed to assign his phone number to the corporation. The testimony of Jenkins was that there was no such agreement. He testified that Wilson chose to assign his number, but Jenkins did not wish to do so and kept it as his personal number. Wilson testified that he thought they had agreed to transfer the phone numbers, but that Jenkins did not do so. Jenkins testified that he did not agree to do so. Given this conflicting testimony, the trial court did not err by resolving the issues of credibility and finding there was no agreement to transfer all of the phone numbers. {¶ 7} Next, Wilson claims that Jenkins failed to transfer all pre-merger books of business. The only testimony concerning this matter occurred when Wilson's attorney questioned Jenkins about the transfer of the Western Reserve book. Jenkins testified that he had done so. Thus, with no contrary evidence before it, the trial court did not err in finding no breach. {¶ 8} Wilson also claims that Jenkins prevented him from having access to the corporate files. However, Jenkins testified that Wilson could have seen any of the corporate files during business hours. Wilson also could have seen the files after business hours, but would have needed Jenkins or an employee to be present to use the computer program as Wilson did not know how to use the program. Wilson's spouse was provided access to the computers and files during regular business hours. Given this testimony, the trial court concluded that Jenkins did not deny Wilson access to the files. {¶ 9} The final complaint Wilson makes is that the trial court erred by permitting Jenkins to repudiate the agreement and dissolve the corporation. However as a fifty percent shareholder in the business, Jenkins had every right to ask for the corporation to be dissolved. There was no agreement as to the duration of the corporation's existence. Thus, there is no evidence from which the trial court could conclude that Jenkins breached an agreement by requesting the dissolution. Since the trial court's findings concerning alleged breaches of the merger agreement are supported by evidence in the record, the trial court did not err. The second assignment of error is overruled. {¶ 10} In the third assignment of error, Wilson claims that the trial court erred by its allocation of the corporate assets. The trial court's distribution came from the funds available from the receiver's sale of all corporate assets. Regardless of whether the trial court believed the amounts to be correct, the sales prices were final and determined the value of the total assets. The trial court then subtracted the amounts each party owed to the corporation and to the other party and adjusted their distribution of assets accordingly. Then the trial court ordered initial payments be made to the parties to account for these amounts. Finally, the trial court ordered the clerk of court to deduct the court costs and distribute any remaining funds equally. This is an equal division of the net assets of the corporation and the equal distribution required. {¶ 11} However, the trial court did order that Jenkins be reimbursed $2,000.00 for the renewal of computer software licenses used by the corporation. Jenkins testified that the software renewal cost $1,200.00. Tr. 89. There was no evidence as to a value of $2,000.00. Thus, the trial court erred in requiring Jenkins to be reimbursed for $2,000.00. Thus, the third assignment of error is sustained as to the reimbursement for the computer software license and overruled on the other issues. {¶ 12} Wilson alleges in the fourth assignment of error that the trial court erred by allowing Jenkins to keep his pre-merger telephone number and requiring Wilson to abandon his. The testimony was that Wilson assigned his pre-merger telephone number to the corporation, but Jenkins did not. Thus, Jenkins phone number was not a corporate asset subject to division in a suit for judicial dissolution of a corporation. The former Wilson phone number is an intangible asset of the corporation to which no value was assigned that can be equally divided between the parties. The trial court ordered that neither party could have it, reasoning that neither distributee should gain an intangible advantage over the other.1 Thus, this court finds no error by the trial court ordering the telephone number abandoned. The fourth assignment of error is overruled. {¶ 13} The fifth assignment of error raises the question as to whether Jenkins used his fiduciary position as a shareholder to misappropriate assets and business opportunities of the corporation. Jenkins had transferred files from one of the corporation's books of business from the corporation to his individual business. This conduct continued until the trial court ordered that the practice be stopped. The trial court acknowledged this conduct in its entry and ordered that Jenkins pay to Wilson one-half of the $35,547.00 commission differential, along with all commissions withheld from the corporation arising from this conduct. Thus, the trial court addressed the situation and returned the sums lost to Wilson. The fifth assignment of error is overruled. {¶ 14} Finally, Wilson claims that the trial court erred by not granting judgment against Bradford. There was no testimony presented at trial that Bradford had any agreement with Wilson or that Wilson suffered damages due to Bradford's actions. Bradford was an employee of Jenkins, then of the corporation, and finally of Jenkins again. No testimony was presented that Bradford took any action to interfere with the corporation other than doing what his employer, Jenkins, instructed him to do. These actions were taken after Jenkins and Wilson had decided to dissolve the corporation. Without some evidence that Bradford independently and wrongly caused any loss to Wilson, there was no reason to continue the suit against Bradford. Therefore, the trial court did not err by dismissing Bradford as a party. The sixth assignment of error is overruled. {¶ 15} The judgment of the Court of Common Pleas of Union County is affirmed in part and reversed in part. The cause is remanded for further proceedings. Judgment affirmed in part and reversed in part and cause remanded. Cupp, P.J., and Rogers, J., concur. 1 This court notes that the record is lacking any finding that Jenkins "wrongfully acquired" the phone number from Wilson, despite what Wilson claims in his brief.

2016-07-06 06:36:03.290106+00

OPINION {¶ 1} In the present appeal, submitted on the briefs of the parties, petitioner-appellant, Brian D. Sundstrom, appeals the judgment of the Ashtabula County Court of Common Pleas, granting petitioner-appellee, Renee B. Sundstrom's, motion to reduce to judgment a debt arising from their separation agreement. For the following reasons, we affirm the judgment of the lower court. {¶ 2} The basic facts are not disputed by the parties. The record indicates that Brian and Renee were married on September 2, 1995. No children were born as issue of the marriage. {¶ 3} On October 14, 1999, the parties petitioned the court for dissolution of their marriage. Attached to the dissolution petition, as required by R.C. 3105.63, was a separation agreement, executed on August 3, 1999, which provided for division of the marital assets and set forth the respective rights and duties of the parties. {¶ 4} Relevant to the appeal, Article II (A) of the agreement provided that the real estate and marital home, located at 1426 W. 6th Street, in Ashtabula, be conveyed to Renee by quit claim deed. Renee was to assume liability for the first mortgage balance of $45,000.00, for which she was obligated to pay $589 per month and hold Brian harmless. {¶ 5} In turn, Brian was to assume liability for a second mortgage on the residence, in the form of a home equity loan for $12,000.00, the proceeds of which were used to purchase a vehicle retained by Brian pursuant to the separation agreement. Under the agreement, Brian was obligated to repay the second mortgage at the rate of $150 per month and hold Renee harmless thereon. {¶ 6} Article VI of the agreement provided that "[t]his agreement shall be a full and complete settlement of all alimony and property rights between the parties." Article VII further stated that "[t]his agreement or any amendment thereto, shall be submitted to any court in which a petition for dissolution of marriage or an action between the parties for a divorce may be pending, and, if found by the court to be fair and equitable and approved or validated by the court, shall be incorporated into the final decree of said court as the order of said court." Article VIII, in turn, provided in relevant part, that "[t]his separation agreement shall be irrevocable and unchangeable unless agreed in writing by both parties." {¶ 7} The court held a magistrate's hearing on the petition for dissolution on November 29, 1999. On December 2, 1999, prior to the dissolution decree being entered, Brian and Renee entered into a "Sworn Statement and Agreement," which provided, in relevant part, as follows: {¶ 8} "Affiants state that they are currently in a pending divorce, about to be finalized, in the domestic relations division, court of common pleas [sic], Ashtabula County Case #99 DR 629, from which a certain property settlement was reached. Pursuant to said settlement, husband was to quitclaim his interest in the property and assume the balance of the second mortgage to Equicredit Corporation; wife was made responsible for the balance of the first mortgage to Equicredit Corporation and would get the property conveyed to her. {¶ 9} "In derogation of said agreement, the parties hereby agree as follows: Wife is to refinance the property, assuming both mortgages, while husband still quitclaims all interest in the property and reimburses wife for second mortgage [sic] with $150.00/month installment payments to be made after the refinance occurs." {¶ 10} The trial court, adopting the magistrate's decision, entered the decree of dissolution into judgment on December 10, 1999. The decree incorporated the Separation Agreement, but not the "Sworn Statement and Agreement," since, inexplicably, neither party submitted this document to the court for its review. Neither party appealed the dissolution. {¶ 11} On July 10, 2000, Brian filed a petition for relief under Chapter 7 in the United States Bankruptcy Court, Northern District of Ohio. Renee appeared before the bankruptcy court in the summer of 2002 to challenge the dischargeability of the obligation under the "Sworn Statement and Agreement." On December 31, 2003, following a hearing and stipulation from the parties that the obligation under the Sworn Statement and Agreement was not in the nature of spousal support, alimony, or maintenance, the Bankruptcy Court determined that Renee presented sufficient evidence to support a finding that the debt was non-dischargeable under 11 U.S.C. § 523(a)(15). The bankruptcy court also found that Brian did not present any evidence to rebut Renee's evidence showing the debt was non-dischargeable. {¶ 12} On September 8, 2004, Renee filed a "Motion to Reduce to Judgment a Debt Owed," in the Ashtabula County Court of Common Pleas, seeking recovery of the $12,000.00 debt, plus interest. On November 24, 2004, the court held a hearing and received evidence relating to Renee's motion. On January 13, 2005, the trial court granted judgment in favor of Renee. The court, in ruling on Renee's motion, found that "[t]he subsequent agreement modified the separation agreement, but clearly preserved the original intent of the parties;" that "[t]here was consideration for the modification;" and that when Renee "refinanced the property, she fulfilled her agreement to pay and hold [Brian] harmless on the first mortgage." However, since Brian "had not paid the second mortgage, * * * he had not fulfilled his part of the agreement." {¶ 13} On the basis of these findings, the court concluded that "the agreement dated December 2, 1999 anticipated that [Brian] would pay his obligation * * * regardless of whether [Renee] continued to own the property," and since "the bankruptcy court * * * determined that this obligation * * * was not dischargeable," the court entered judgment in favor of Renee and ordered Brian to pay the balance of $12,000.00, plus 9.8% annual interest from December 2, 1999. {¶ 14} Brian timely appealed the court's decision, raising two assignments of error: {¶ 15} "[1.] The trial court abused its discretion and erred to the prejudice of Petitioner-Appellant by granting Petitioner-Appellee judgment on a pre-dissolution decree agreement inconsistent with the terms of the parties' separation agreement incorporated into said decree. {¶ 16} "[2.] The trial court abused its discretion and erred to the prejudice of Petitioner-Appellant by granting Petitioner-Appellee judgment on an undisclosed, unapproved pre-dissolution decree agreement, inconsistent with and not incorporated into the final decree, on the basis that same was not dischargeable in bankruptcy." {¶ 17} A decision of a trial court whether or not to enforce the terms of a separation agreement is a discretionary one, and accordingly, the decision of the court will be reviewed under an abuse of discretion standard. Schneider v. Schneider (1996),110 Ohio App.3d 487, 491. Abuse of discretion is defined as that which is arbitrary, unreasonable, or unconscionable. Berk v.Matthews (1990), 53 Ohio St.3d 161, 169 (citation omitted). In most instances, an abuse of discretion will be found if a decision is found to be unreasonable. AAAA Enters., Inc. v.River Place Community Urban Redevelopment Corp. (1990),50 Ohio St.3d 157, 161. "A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue denovo, would not have found the reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result." Id. {¶ 18} Appellant's first and second assignments of error will be discussed together, since they together present a single determinative issue for this court's consideration, that is, whether the trial court erred and abused its discretion in concluding that the Sworn Statement of Agreement was not an impermissible modification of the Separation Agreement, but rather "preserved the original intent of the parties." We conclude that the trial court did not abuse its discretion and, accordingly, uphold its judgment. {¶ 19} In his first assignment of error, appellant argues that the trial court erred and abused its discretion by granting judgment in favor of appellee." Appellant maintains that the trial court did not have jurisdiction to modify an agreement of the parties regarding a division of personal property that differs from the division outlined in the agreement attached to the original decree. While we agree that a trial court would not have jurisdiction to modify a separation agreement regarding the division of personal property, under the circumstances presented herein, we conclude the trial court properly exercised jurisdiction, and reject appellant's argument. {¶ 20} The conundrum presented by this case involves the parties' creation of the Sworn Statement and Agreement subsequent to the hearing on the dissolution decree, but prior to the entry of the court's judgment on the matter. The sole dispute between the parties is whether or not the Sworn Statement and Agreement is unenforceable as being inconsistent with the Separation Agreement. {¶ 21} In Ohio, actions for dissolution under 3105.61 et seq. are a form of no fault divorce where the court can terminate a marriage pursuant to the request of the parties. In re Means, 11th Dist. No. 2004-T-1038, 2005-Ohio-6079, at ¶ 18 (citation omitted). Since the mutual agreement of the parties is the touchstone of dissolution law, the petition must incorporate a separation agreement which sets forth all the rights and duties of the parties with respect to alimony, if any, custody, visitation, support, and the division of all property. Id. citingIn re Adams (1989), 45 Ohio St.3d 219, 220; R.C. 3105.63. However, unlike a division of marital property, R.C. 3105.63 does not require an assignment of marital debt "with respect to separation agreements incorporated into dissolution decrees."Lemaster v. Lemaster, 2nd Dist. No. 04CA35, 2005-Ohio-2513, at ¶ 15. Although "[d]ivision of * * * debt is advisable to disentangle the parties' economic partnership so as to create a conclusion and finality to their marriage * * * [a]bsent an assignment to the other spouse, a debt obligation remains as it is owed." Id. (citation omitted). Thus, contrary to appellant's assertion, the assignment of debt contained in Article II of the Separation Agreement is a separate and distinct matter from a property division under R.C. 3105.63. {¶ 22} Settlement agreements are favored by law. Walther v.Walther (1995), 102 Ohio App.3d 378, 383. "Where parties enter into a settlement agreement in the presence of the court, such an agreement constitutes a binding contract." Id. (citation omitted). Furthermore in cases of dissolution, "[o]nce the separation agreement is executed, both parties must appear before the court, verify that each entered into the agreement voluntarily and that both are satisfied with the terms of the agreement." Means, 2005-Ohio-6079, at ¶ 19 (citation omitted). Furthermore, "[o]nce incorporated into a judicial decree of dissolution, a separation agreement loses its separate identity as a contract." Lemaster, 2005-Ohio-2513, at ¶ 20; Hoog v.Hoog (Sep. 24, 1999), 1st Dist. No. C-980977, 1999 Ohio App. LEXIS 4421, at *8, citing Greiner v. Greiner (1979),61 Ohio App.2d 88, 95. {¶ 23} As a general matter, following incorporation into the dissolution decree, "the contractual rights and duties imposed are enforceable only as relief granted by the decree."Lemaster, 2005-Ohio-2513, at ¶ 20. {¶ 24} However, we conclude the trial court did not abuse its discretion under the circumstances presented in this case. Appellant's jurisdictional arguments are unavailing. The majority of the case law relating to a court's jurisdiction over separation agreements concerns the trial court's jurisdiction to make modifications to a separation agreement, rather than its jurisdiction to enforce a modification agreed upon by theparties. See, e.g. Alban v. Alban (1981), 1 Ohio App.3d 146, at syllabus (in the absence of an express provision in the separation agreement reserving the court's jurisdiction to modify periodic alimony payments provided for in a separation agreement, a court is without jurisdiction to do so, pursuant to R.C.3105.65(B)); Leonti v. Leonti (1983), 8 Ohio App.3d 129,130-131 (a court does not retain jurisdiction to modify a separation agreement, which provides for the division and distribution of marital property); but see Hoog, 1999 Ohio App. LEXIS 4421 at *7-*8 ("[W]hile a trial court does not have the power to modify the terms of a separation agreement entered into between the parties, R.C. 3105.65(B) provides that it does have full power to enforce the provisions of such an agreement * * *.") (citation omitted). {¶ 25} Part of the trial court's continuing jurisdiction to enforce the provisions of a separation agreement is the court's inherent power to interpret contractual provisions. In doing so, a court is entitled to consider "not only the intent of the parties but the equities involved." Hoog, 1999 Ohio App. LEXIS 4421, at *9-*10 (citation omitted); see also, Means,2005-Ohio-6079, at ¶ 20 ("[t]he separation agreement * * * will be interpreted `so as to carry out the intent of the parties'") (citation omitted). {¶ 26} As an initial matter, "[p]arties to the separation agreement may modify the terms * * * by subsequent acts or agreements." Sweeney v. Sweeney (Sep. 17, 1998), 10th Dist. No. 98AP-66, 1998 Ohio App. LEXIS 4272, at *5; see also Haehn v.Haehn (May 8, 2001), 7th Dist. No. 00 CO 41, 2001 Ohio App. LEXIS 2121, at *9 (subsequent settlement agreement entered into by the parties varying payment terms under the original separation agreement was upheld as valid.) Here, the parties voluntarily entered a contract modifying the payment terms of the separation agreement. "The three main elements of a contract are offer, acceptance, and consideration." Carlisle v. T RExcavating, Inc. (1997), 123 Ohio App.3d 277, 283 (citation omitted). Here, the parties mutually agreed that Brian would reimburse Renee in return for her refinancing the marital home and assuming both the first and second mortgage "in derogation" of Article II of the separation agreement. Consideration was supplied when Renee assumed, to her detriment, responsibility for payment of the consolidated loan balance. Consideration is defined as a "bargained for" legal benefit or detriment.Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, at ¶ 16. {¶ 27} Furthermore, we agree with the trial court that the modification agreed to by the parties in the Sworn Statement and Agreement is consistent with the original intent of the parties. The separation agreement states, "husband shall pay Home Equity Loan and the Equiloan balance of $12,000 @ $150.00 a month and hold wife harmless thereof." The Sworn Statement and Agreement provided that "[w]ife is to refinance the property assuming both mortgages, while husband still quitclaims all interest in the property and reimburses wife for second mortgage assumption with $150.00/month installment payments to be made after the refinance occurs." Under either contract, entered into voluntarily by theparties, Brian was liable for the payment of $12,000 for the Home Equity debt. The Sworn Statement and Agreement merely changes the payee from EquiLoan to Renee, who, by consolidating the loans, assumed the debt under the condition that Brian reimburse her at the rate of $150 per month. {¶ 28} Undisputed evidence adduced at the hearing below showed that Brian failed to make any payments subsequent to the signing of the separation agreement, either to the mortgage company or to Renee. To allow Brian to escape liability for the debt under the Sworn Statement and Agreement would render the "hold harmless" provision of the separation agreement a dead letter. "A hold harmless agreement is `[a] contractual arrangement whereby one party assumes the liability inherent in the undertaking, thereby relieving the other party of the responsibility.'" Valhal Corp. v. Sullivan Assocs., Inc. (C.A. 3, 1994), 44 F.3d 195, 202, quoting Black's Law Dictionary 658 (5th ed. 1979). In the instant matter, failure to uphold the terms of the subsequent contract would squarely shift the burden onto Renee, a result that was not intended in either agreement. {¶ 29} We also find Brian's argument that the trial court's consideration of the Sworn Statement and Agreement to be a violation of the parol evidence rule to be unavailing. "The parol evidence rule is a rule of substantive law which, when applicable, defines the limits of a contract." Charles A.Burton, Inc. v. Durkee (1952), 158 Ohio St. 313, paragraph one of the syllabus. The parol evidence rule states, in relevant part, that "the parties' final written integration of their agreement may not be varied, contradicted or supplemented by evidence of prior or contemporaneous oral agreements or prior written agreements." Galmish v. Cicchini, 90 Ohio St.3d 22, 27,2000-Ohio-7 (citation omitted) (emphasis added). Since the Sworn Statement and Agreement was a subsequent written agreement, the parol evidence rule does not apply. {¶ 30} In his second assignment of error, appellant argues that the trial court erred in finding that the debt was not dischargeable on the basis of the finding of the Bankruptcy Court that the debt was non-dischargeable, since it arose from the separation agreement. {¶ 31} Pursuant to Article IV, Section III of the Ohio Constitution, and R.C. 2501.02, appellate courts in Ohio are limited in the exercise of their appellate jurisdiction to review "questions of law to review, affirm, modify, set aside, or reverse judgments or final orders of courts of record inferiorto the court of appeals within the district." Thus, this court is without authority to review the merits of the decision of the Federal Bankruptcy Court, and this matter should have been raised on an appeal in federal court. More importantly, the issue of whether or not the debt is dischargeable for the purposes of this appeal is res judicata. Grava v. Parkman Twp.,73 Ohio St.3d 379, 382, 1995-Ohio-379 ("a valid final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.") {¶ 32} For the foregoing reasons, Brian's first and second assigned errors are without merit. Accordingly, we affirm the judgment of the Ashtabula County Court of Common Pleas. Ford, P.J., Rice, J., concur.

2016-07-06 06:36:03.589245+00

decision and journal entry This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Appellants, Richard J. Bennett and Rose M. Merendino, appeal the trial court's decision, granting summary judgment in favor of appellees, Roadway Express, Inc., John M. Glenn, and Debbie Wears. We affirm. I. In 1997 and 1998, Richard Bennett was deputy general counsel for Roadway Express, Inc. ("Roadway") and worked in Roadway's law department. John Glenn was then general counsel, vice president, and secretary of Roadway. Although he was not a member of the law department, Glenn oversaw the daily operations of the law department, and Bennett reported directly to him. Debbie Wears was the litigation case manager in the law department, but was promoted to compliance administrator for the human resources department in the Fall of 1997. Consequently, Bennett began searching for a new case manager for the law department. He contacted Rose Merendino, who had served as a temporary legal secretary at Roadway in 1989 and with whom he had kept in contact, to ascertain whether she was interested in the position. After interviewing Merendino, Bennett offered her the job of case manager in October 1997. Merendino immediately accepted. According to Merendino, before starting work at Roadway, Merendino was informed by Nancy Sense, a secretary of Roadway's law department, that Wears had been spreading rumors that Bennett and Merendino were having an affair and that was how Merendino had obtained employment at Roadway. According to plaintiffs, both Sense and another Roadway employee, Joyce Hardman, told them that Wears had made those statements. Further, Merendino stated in her deposition that Hardman told her that Glenn had also recounted the statement. Bennett and Merendino, however, never personally heard either Wears or Glenn make the allegedly defamatory statements. Furthermore, Sense and Hardman denied that Glenn and Wears had made those statements, and further, denied ever telling plaintiffs that Glenn and Wears had said plaintiffs were having an affair. Merendino testified that shortly after she began her job at Roadway, she noticed Glenn looking her up and down and staring at her legs. She testified that he treated her like a "bimbo" and completely disregarded her work. She attributed Glenn's lack of respect to the fact that he thought she was "was just some bimbo sleeping with the boss" to get the job. Merendino complained to Bennett about Glenn's treatment of her and felt that she was being sexually harassed. Accordingly, in January 1998, Bennett allegedly informed Tom Lopienski, vice-president of human resources, and Bob Chess, director of human resources, that Glenn was mistreating Merendino and was looking at her in an inappropriate manner, which made Merendino uncomfortable. Bennett admitted, however, that he did not say that he believed Glenn's behavior violated Roadway's sexual harassment policy. After these meetings, Glenn allegedly engaged in constant adverse treatment of plaintiffs. Glenn allegedly retaliated by having frequent meetings and assigning Merendino excessive work, which she deemed pointless. Again, in March 1998, Bennett reiterated the same complaints to Lopienski and Chess. Both Lopienski and Chess stated that Bennett never informed them that Merendino was being sexually harassed. Having heard nothing from Lopienski and Chess, Bennett went to speak with Michael Wickham, Roadway's chief executive officer, on April 27, 1998. At that meeting, Bennett intended to tell Wickham about the sexual harassment, but was unsuccessful because Wickham kept redirecting the conversation. After the meeting with Wickham, Glenn summoned Bennett to his office. According to Bennett, Glenn stated that he knew everything Bennett said to Wickham and insinuated that he was going to use his power to get revenge. Glenn also informed Bennett about his plans for restructuring the law department. Bennett stated that he was emotionally devastated by the conversation. The next day, April 28, 1998, Bennett began a medical leave of absence and sought treatment. After Bennett went on the leave of absence, Merendino reported the alleged sexual harassment to a Roadway executive, other than Bennett, for the first time. On May 18, 1998, Bennett returned to work. Glenn, however, prohibited Bennett from working until he obtained the assurance of a physician that he was able to perform the functions of his position. Although Bennett was cleared to return to work by his physician, defendants insisted that he be evaluated by a company-approved psychiatrist before they would allow him to return to work, due to the vagueness of Bennett's physician's letter. Thereafter, Bennett retained counsel, who contacted Glenn and requested time to consult with his client on this issue. Glenn responded by demanding that Bennett inform him by May 27, 1998 at 5:00 p.m. whether he intended to keep the appointment with the psychiatrist. Instead of confirming that Bennett would keep the appointment, Bennett's attorney reiterated his need for time to discuss the matter with his client. Subsequently, Glenn cancelled the appointment that Glenn had made for Bennett to see a psychiatrist. On May 28, 1998, Glenn discharged Merendino, giving the reason of corporate restructuring. On May 29, 1998, Glenn terminated Bennett's employment at Roadway, allegedly due to his performance. On October 7, 1998, Bennett and Merendino filed a complaint in the Summit County Court of Common Pleas, naming Roadway Express, Inc., John M. Glenn, and Debbie Wears as defendants. They filed a defamation claim against all three defendants and filed claims for intentional infliction of emotional distress, retaliatory discharge pursuant to R.C. 4112.02, and wrongful discharge in violation of public policy against defendants Roadway and Glenn. Merendino brought claims for sexual harassment and sex discrimination under R.C. 4112.02(A) against Roadway and Glenn. Additionally, Bennett filed claims for handicap discrimination and age discrimination against Roadway and Glenn. Merendino and Bennett also sought punitive damages based on defendants' actions. On June 9, 2000, Bennett and Merendino moved to compel Nancy Sense, a secretary at Roadway, to disclose the content of her communications with Glenn and Roadway's attorney, which were made in preparation for her deposition. Roadway responded in opposition, claiming that those communications were protected under the corporate attorney-client privilege. On August 16, 2000, the trial court denied the motion to compel, finding that those communications were protected by the corporate attorney-client privilege and the work product doctrine. After extensive discovery, Wears moved for summary judgment on July 11, 2000. The next day, Roadway and Glenn also moved for summary judgment. Subsequently, on July 26, 2000, Merendino and Bennett moved for leave to amend their complaint to include a claim for tortious interference with Bennett's employment contract with Stark County, Ohio, and moved to voluntarily dismiss the age discrimination claim. Plaintiff responded in opposition to defendants' motions for summary judgment on August 2, 2000. In a decision journalized on September 19, 2000, the trial court granted plaintiffs' motion to voluntarily dismiss the age discrimination claim, but denied their motion to amend the complaint to include a tortious interference with an employment contract claim. The trial court also granted summary judgment in favor of all three defendants. This appeal followed. II. Merendino and Bennett assert nine assignments of error. We will address each in due course. SUMMARY JUDGMENT Pursuant to Civ.R. 56(C), summary judgment is proper if: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Appellate review of a lower court's entry of summary judgment is de novo, applying the same standard used by the trial court. McKay v. Cutlip (1992),80 Ohio App.3d 487, 491. The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280,293. The movant must point to some evidence in the record of the type listed in Civ.R. 56(C) in support of his motion. Id. Once this burden is satisfied, the nonmoving party has the burden, as set forth in Civ.R. 56(E), to offer specific facts showing a genuine issue for trial. Id. The nonmoving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit some evidentiary material that shows a genuine dispute over the material facts exists. Henkle v.Henkle (1991), 75 Ohio App.3d 732, 735. A. First Assignment of Error The trial court erred in granting summary judgment on all ofPlaintiffs-Appellants' claims [i]n finding that Plaintiffs had notestablished that Defendants Wears and Glenn published defamatory remarksthat Plaintiffs were having an affair. In their first assignment of error, Bennett and Merendino contend that the trial court erred in finding that they had not established that Wears and Glenn published defamatory remarks because the only evidence presented on that issue was inadmissible hearsay. They argue that the evidence was not hearsay. We disagree. To prevail in a defamation case, a plaintiff who is a private person must prove five elements: "(1) a false and defamatory statement; (2) about plaintiff; (3) published without privilege to a third party; (4) with fault of at least negligence on the part of the defendant; and (5) that was either defamatory per se or caused special harm to the plaintiff." Gosden v. Louis (1996), 116 Ohio App.3d 195, 206. In the case sub judice, the trial court determined that plaintiffs only presented inadmissible hearsay evidence to show publication, and therefore, had failed to establish this element. To support their defamation claim, Bennett and Merendino presented their respective depositions, in which they testified that two Roadway employees, Nancy Sense and Joyce Hardman, informed them that Wears had told them (Sense and Hardman) that plaintiffs were having an affair. Merendino further testified that Hardman told her that Glenn had also told Hardman that plaintiffs were having an affair. Hardman and Sense denied both having heard Wears and Glenn publish the allegedly defamatory statements and having told plaintiffs that Wears and Glenn made those statements. In Carriker v. Am. Postal Workers Union (Sept. 30, 1993), Montgomery App. No. 13900, unreported, 1993 Ohio App. LEXIS 4733, *50-52, appellant claimed that Bondurant had defamed her by telling others that she was having an affair with the Union's president. Attached to her motion for summary judgment, Bondurant submitted an affidavit denying that she had ever made such a statement. Id. at *50. In response, appellant submitted her deposition, in which she stated that she had been told by several coworkers that Bondurant had made the defamatory statement. Id. Appellant also presented the deposition testimony of John Smith in which he testified that Cliff Woods was told by Karen Barlow that Bondurant made the statement to Barlow. Id. at *50-51. In affirming the trial court's entry of summary judgment against appellant, the Second Appellate District found that this evidence was incompetent as hearsay, and therefore, appellant failed to produce competent evidence creating a genuine issue of material fact as to whether there was publication. Id. at *51-52. This court recently upheld a trial court's grant of summary judgment under similar circumstances in Lathwell v. Lorain Cty. Jobs for OhioGraduates (May 10, 2000), Lorain App. No. 99CA007303, unreported, at 6-8. In Lathwell, plaintiff offered as support for his defamation claim the affidavit of Joyce Early. Id. at 6-7. Early stated the Rose Minkeiwicz told her that Beasley had made a defamatory remark about plaintiff. Id. at 7. This court found that "[t]he pertinent portions of Early's affidavit were not made on personal knowledge of the ultimate fact to be established, that Beasley published these [allegedly defamatory] statements * * * [.] Early's affidavit is based on hearsay and is thus inadmissible as evidence to support Lathwell's defamation claim." Id. Accordingly, this court affirmed the trial court's decision.Id. at 7-8. In the present case, plaintiffs argue that their deposition testimony is not hearsay because the statements to which they testified were not offered to prove the truth of the matter asserted, namely that plaintiffs were having an affair; rather, the evidence was offered to show publication of the defamatory statement. See Evid.R. 801(C). Plaintiffs' assertion would be correct if Sense and Hardman had testified that Wears and Glenn had informed them the plaintiffs were having an affair. SeeTaylor v. Lenio (June 20, 1985), Cuyahoga App. No. 49300, unreported, 1985 Ohio App. Lexis 8095, at *7-8. The pertinent portions of Bennett and Merendino's depositions, however, were not made on personal knowledge of the ultimate fact to be established, specifically that Wears and Glenn published the defamatory statements. In fact, plaintiffs admitted that they never heard Wears or Glenn make any defamatory remarks. Thus, those portions of plaintiffs' depositions constitute inadmissible hearsay and cannot be used to defeat summary judgment. As plaintiffs did not produce any competent evidence showing publication, we conclude that the trial court properly granted summary judgment in favor of defendants on the defamation claim. Appellants' first assignment of error is overruled. B. Third Assignment of Error The trial court erred in granting summary judgment on all ofPlaintiffs-Appellants' claims [i]n finding that the evidence of hostilework environment was not sufficient to support Merendino's claims of sexdiscrimination against Glenn and Roadway. Merendino asserts that the trial court erred in entering summary judgment against her on her sex discrimination claim, as there was a genuine issue of material fact as to whether a hostile work environment existed. We disagree. R.C. 4112.02(A) prohibits discrimination based on sex, stating: It shall be an unlawful discriminatory practice [f]or any employer, because of the * * * sex * * * of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment. "[A] plaintiff may establish a violation of R.C. 4112.02(A)'s prohibition of discrimination `because of * * * sex' by proving * * * `hostile environment' harassment, i.e., harassment that, while not affecting economic benefits, has the purpose or effect of creating a hostile or abusive working environment." (First omission original.)Hampel v. Food Ingredients Specialties, Inc. (2000), 89 Ohio St.3d 169,176. The Ohio Supreme Court has held that [i]n order to establish a claim of hostile-environment sexual harassment, the plaintiff must show (1) that the harassment was unwelcome, (2) that the harassment was based on sex, (3) that the harassing conduct was sufficiently severe or pervasive to affect the "terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment," and (4) that either (a) the harassment was committed by a supervisor, or (b) the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action. Id. at 176-77. "[H]arassing conduct that is simply abusive, with no sexual element, can support a claim for hostile-environment sexual harassment if it is directed at the plaintiff because of his or her sex."Id. at 180. Furthermore, "R.C. 4112.02(A) does not reach disparate treatment on account of personal animosity; no matter how severe or pervasive the conduct, harassment does not constitute a discriminatory practice under R.C. 4112.02(A) unless based on a prohibited classification." Id. at 184-85. In the present case, Merendino claims that defendants treated her adversely based on her sex. In her deposition, Merendino testified that Glenn treated her like a "bimbo," "look[ed] her up and down," and stared at her legs. When asked whether she could recall any other specific instances of sexual harassment by Glenn, Merendino responded: Same thing of looking me up and down, dismissing me, not giving my work any validity, you know, calling on Debbie [Wears], when I could have answered a question, not having any respect for that position, not giving me any credit, with all of my background in the legal field, that I would have had some semblance of what was going on and the ability to follow through and be responsible. I never got any of that from [Glenn], he just dismissed me from the beginning, dismissed. Merendino also mentioned that during meetings, Glenn would defer to Bennett and that Glenn would override her during telephone calls. She attributed Glenn's lack of respect for her work to the fact that he thought that she "was just some bimbo sleeping with the boss [Bennett]" to get the job. She further testified that a couple of coworkers told her that Glenn accused her of having an affair with Bennett. Additionally, Merendino related that Glenn would assign her time-consuming, pointless (according to Merendino) tasks and that Glenn's hostile treatment of her caused her work to suffer. She stated that after she and Bennett complained about Glenn's behavior, Glenn's hostile treatment increased and her employment with Roadway was terminated. Construing Merendino's testimony most strongly in her favor, the evidence demonstrates that Glenn continually hassled Merendino while she was employed by Roadway and lacked confidence in her work. She also felt harassed by the manner in which Glenn looked her up and down. Merendino, however, has failed to show that Glenn's treatment of her was based on sex. Specifically, the record fails to disclose any disparity in the way Glenn treated male and female employees. See id. at 184. In fact, Merendino admitted that Glenn relied on Wears, a female employee at Roadway, and often deferred to her, instead of depending on Merendino's knowledge and expertise. Accordingly, viewing the evidence in a light most favorable to Merendino, we conclude that reasonable minds could not find that Glenn and Roadway's alleged harassment of Merendino was based on sex. Appellants' third assignment of error is overruled. C. Fourth Assignment of Error The trial court erred in granting summary judgment on all ofPlaintiffs-Appellants' claims [i]n concluding that as a matter of lawBennett failed to establish a prima facie case of handicap discriminationagainst Roadway and Glenn. In his fourth assignment of error, Bennett claims that the trial court erred in granting summary judgment in favor of Roadway and Glenn on his handicap discrimination claim. Specifically, he asserts that a genuine issue of material fact existed as to whether Glenn and Roadway unlawfully discriminated against him because they regarded him as having a physical or mental impairment. We disagree. R.C. 4112.02(A) prohibits discrimination based on disability. To establish a prima facie case of handicap discrimination, the person seeking relief must demonstrate (1) that he or she was handicapped, (2) that an adverse employment action was taken by an employer, at least in part, because the individual was handicapped, and (3) that the person, though handicapped, can safely and substantially perform the essential functions of the job in question. Columbus Civ. Serv. Comm. v. McGlone (1998), 82 Ohio St.3d 569,571. R.C. 4112.01(A)(13) defines "handicap" as: a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; orbeing regarded as having a physical or mental impairment. (Emphasis added.) An emotional or mental illness is one form of "mental impairment." R.C. 4112.01(A)(16)(a)(ii). Under certain circumstances, depression may constitute a handicap for the purposes of R.C. 4112.02(A). See Shaver v. Wolske Blue (2000), 138 Ohio App.3d 653, 666. However, "[a]bsent indications that one or more major life activities have been substantially limited, the experience of depression is insufficient to constitute a disability." Cooke v. SGS Tool Co. (Apr. 26, 2000), Summit App. No. 19675, unreported, at 11, citing Beauchamp v. CompuServe, Inc. (1998), 126 Ohio App.3d 17, 23. In the present case, Bennett claims that Glenn and Roadway unlawfully discriminated against him because they regarded him as having a mental impairment. In support of his claim, Bennett pointed to evidence showing that Bennett took a leave of absence for medical reasons beginning on April 28, 1998. In response to Glenn and Roadway's FMLA notice, Bennett provided them with a physician's note, which stated that Bennett was under his care and would be absent until May 18, 1998. On May 13, 1998, defendants sent Bennett a letter indicating that Bennett was required to submit to a fitness-for-duty examination with a Roadway-approved psychiatrist before returning to work. Without obtaining such an examination, Bennett returned to work on May 18, 1998, but was not permitted to work until he submitted to the psychiatric examination. The next day, Bennett furnished Roadway and Glenn with a letter from his physician, stating in its entirety that "Mr. Bennett remains under my care. He is medically cleared to return to full duty at work as of [May 18, 1998]." Glenn acknowledged receiving the letter from Bennett's physician, but emphasized that he needed "an evaluation by the company psychiatrist before determining [Bennett's] fitness to return to duty." Glenn, however, noted that he was restoring Bennett to payroll as of May 18, 1998. On May 22, 1998, Bennett retained counsel, who advised Glenn that he needed time to discuss the psychiatric evaluation with Bennett and that after their discussion, the attorney would respond to Glenn. Subsequently, on May 27, 1998, Glenn informed Bennett that his "appointment with [the company psychiatrist] remain[ed] scheduled for June 9[, 1998]" and that Bennett had until 5:00 p.m. to inform him whether Bennett intended to keep the scheduled appointment. Glenn reiterated that the purpose of the examination was to determine Bennett's fitness to "perform the essential functions of [his] job." Rather than stating whether Bennett would keep the appointment, Bennett's attorney contacted Glenn by fax and requested time to discuss the matter with his client. The following day, Glenn cancelled the appointment with the psychiatrist, and on May 29, 1998, terminated Bennett's employment at Roadway. Roadway and Glenn substantially agree with these facts. Construing this evidence most strongly in Bennett's favor, the evidence shows that Glenn and Roadway knew that Bennett had taken a medical leave of absence for emotional or mental reasons and that he was being treated by a physician in that regard. Bennett's physician's letter, clearing him to return to work, did not disclose the precise nature and extent of Bennett's condition or the physician's qualifications to make such a determination. Accordingly, defendants required Bennett to submit to a psychiatric evaluation by a company-approved psychiatrist ostensibly in order to ascertain his ability to perform the functions of his position. Importantly, the Sixth Circuit has found that an employer's requirement that an employee submit to a psychiatric evaluation to determine whether the employee could continue to fulfill the essential functions of the position is not tantamount to a perception by the employer that the employee is disabled. Sullivan v. River Valley School Dist. (C.A.6, 1999), 197 F.3d 804, 810-11. For such a requirement to be valid, however, "there must be evidence sufficient for a reasonable person to doubt whether an employee is capable of performing the job, and that any examination is limited to determining an employee's ability to perform essential job functions." Id. at 813. Here, after a medical leave of absence approximately three weeks in duration, defendants required the examination to ascertain Bennett's ability to perform the essential functions of his job. It is important to note that Bennett's position as corporate counsel involved analyzing and synthesizing complex factual and legal issues into a cogent whole and then providing legal advice to the company and its employees. Thus, the fact that Roadway and Glenn required Bennett to submit to such an examination, without more, does not lead to the conclusion that defendants regarded him as disabled, within the meaning of R.C. 4112.02(A). See id. at 811. Consequently, in viewing the evidence most strongly in favor of Bennett, we hold that reasonable minds could not conclude that Roadway and Glenn unlawfully discriminated against Bennett because they regarded him as disabled. Appellants' fourth assignment of error is overruled. D. Second Assignment of Error The trial court erred in granting summary judgment on all ofPlaintiffs-Appellants' claims [i]n finding that the evidence of Roadway'sand Glenn's conduct did not rise to [the] level of "extreme andoutrageous conduct" necessary to support a claim for intentionalinfliction of emotional distress. In his second assignment of error, Bennett asserts that the trial court incorrectly determined that Roadway and Glenn's retaliatory actions did not constitute extreme and outrageous conduct, and therefore, erred in granting summary judgment in favor of defendants on his intentional infliction of emotional distress claim. We disagree. To establish a claim for intentional infliction of emotional distress, a plaintiff must prove the following four elements: 1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; 2) that the actor's conduct was so extreme and outrageous as to go "beyond all possible bounds of decency" and was such that it can be considered as "utterly intolerable in a civilized community;" 3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that "no reasonable [person] could be expected to endure it." (Citations omitted.) Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34; see, also, Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, syllabus. Bennett claims that the evidence presented regarding Glenn's conduct toward Bennett when he attempted to return to work after his medical leave of absence was sufficient to withstand summary judgment as to Bennett's intentional infliction of emotional distress claim. We set forth the relevant facts in our discussion of appellants' fourth assignment of error. We find that in viewing the evidence in a light most favorable to Bennett, reasonable minds could not conclude that defendants' actions constituted extreme and outrageous conduct. We, therefore, adduce that the trial court properly entered summary judgment in favor of Roadway and Glenn on Bennett's intentional infliction of emotional distress claim. Appellants' second assignment of error is overruled. E. Fifth Assignment of Error The trial court erred in granting summary judgment on all ofPlaintiffs-Appellants' claims [i]n finding that Plaintiffs "failed" topresent a "prima-facie showing of retaliation" and "had they done so, therecord is replete with evidence to support Roadway had a `legitimate,non-discriminatory' reason for both terminations." Bennett and Merendino aver that the trial court improperly granted summary judgment to Roadway and Glenn on their retaliation claim, under R.C. 4112.02(I). They argue that the trial court erred in finding that they failed to present a prima facie showing of retaliation and in finding that, had they made such a prima facie showing, the record was replete with evidence to support a legitimate, nondiscriminatory reason for both terminations. We disagree. Pursuant to R.C. 4112.02(I), it is an unlawful discriminatory practice [f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code. This court has held that a person must prove the following elements to establish a prima facie case of retaliation under R.C. 4112.02(I): (1) plaintiff engaged in a protected activity, (2) plaintiff was the subject of adverse employment action, and (3) a causal link between the protected activity and the adverse action existed. Chandler v. Empire Chem., Inc.,Midwest Rubber Custom Mixing Div. (1994), 99 Ohio App.3d 396, 402. Once a plaintiff establishes a prima facie case of retaliation, the burden then shifts to the defendant "to articulate a legitimate reason for its action." Id. If that burden is met, the burden then shifts back to the plaintiff "to show that the articulated reason was merely a pretext." Id. "[A] reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Center v. Hicks (1993), 509 U.S. 502,515, 125 L.Ed. 407, 422. Assuming arguendo that plaintiffs established a prima facie case of retaliation, defendants have articulated legitimate business reasons for terminating Bennett and Merendino's employment at Roadway. Glenn stated that Merendino was terminated due to restructuring the law department, while Bennett was terminated due to performance. According to Glenn, Bennett did not inform him that he was willing to keep the appointment with the company-approved psychiatrist by the time required by Glenn. This failure by Bennett, inter alia, apparently precipitated Bennett's termination two days later. Significantly, insubordination is generally a legitimate and nondiscriminatory reason for adverse employment action. See Hood v. Diamond Products, Inc. (1996), 74 Ohio St.3d 298, 302. Glenn further testified that once he decided to terminate Bennett, he discharged Merendino because he did not feel that she had the experience or the talent for the new more demanding position, which was created after restructuring the law department. Instead, Glenn awarded Wears the new position because he was impressed by her abilities. Upon careful review of the record and construing the evidence most strongly in favor of Bennett and Merendino, we conclude that reasonable minds could not find that defendants' justifications for plaintiffs' terminations were merely a pretext. Accordingly, the trial court properly granted summary judgment on the retaliation claims. Appellants' fifth assignment of error is overruled. F. Sixth Assignment of Error The trial court erred in granting summary judgment on all ofPlaintiffs-Appellants' claims [i]n finding that Bennett and Merendinofailed to establish their Violation of Public Policy Claim as they failedto comply with the statutory requirements of the "whistle blower"statute. In their sixth assignment of error, Bennett and Merendino claim that the trial court erred in concluding that they had failed to establish their violation of public policy claims because they had failed to establish their discrimination and retaliation claims under R.C. 4112.02. The gravamen of their argument is that they did, in fact, demonstrate a genuine issue of material fact as to their discrimination and retaliation claims under R.C. 4112.02. We disagree. To establish a claim for tortious wrongful discharge in violation of public policy, four-elements must be satisfied: "1. That [a] clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element). 2. That dismissing employees under circumstances like those involved inthe plaintiff's dismissal would jeopardize the public policy (thejeopardy element). 3. The plaintiff's dismissal was motivated by conduct related to the public policy (the causation element). 4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element)." (Emphasis sic.) (Bolding added.) Painter v. Graley (1994), 70 Ohio St.3d 377, 384, fn. 8, quoting H. Perritt, The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie? (1989), 58 U.Cin.L.Rev. 397, 398-99 (reaffirmed in Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134,150-51). As Bennett and Merendino have failed to establish their discrimination and retaliation claims, as discussed infra, they have not proved that their discharges jeopardize those policies; consequently, the trial court properly granted summary judgment on their wrongful discharge in violation of public policy claims. See Cochran v. Columbia Gas of Ohio, Inc. (2000), 138 Ohio App.3d 888, 895; Crosier v. Quikey Mfg. Co., Inc. (Feb. 28, 2001), Summit App. No. 19863, unreported, at 18. Appellants' sixth assignment of error is overruled. G. Seventh Assignment of Error The trial court erred * * * [i]n granting summary judgment as Defendants'reasons for discharging Plaintiffs were pretextual. In their seventh assignment of error, Bennett and Merendino assert that the trial court erred in determining that defendants' business reasons for discharging them were not a pretext for retaliatory discharge and handicap and sex discrimination. In order to reach the issue of whether defendants had legitimate business reasons for discharging plaintiffs and whether these business reasons were pretextual, plaintiffs must first establish a prima facie case for each of these claims. See Hood, 74 Ohio St.3d at 302 (writing that "[o]nce the plaintiff establishes a prima facie case of handicap discrimination, the burden then shifts to the employer to set forth some legitimate, nondiscriminatory reason for the action taken" and if the employer establishes a nondiscriminatory reason, the employee then "must demonstrate that the employer's stated reason was a pretext for impermissible discrimination"); Omobien v. Ohio Civ. Rights Comm. (1993), 89 Ohio App.3d 100, 104 (applying burden shifting to sex discrimination and discrimination cases generally). As previously discussed, both Merendino and Bennett failed to establish a prima facie case for their claims of handicap and sex discrimination. Therefore, regarding these discrimination claims, the issue of whether defendants' alleged legitimate business reasons for discharging plaintiffs were pretextual has been rendered moot. See App.R. 12(A)(1)(c). Furthermore, we discussed these arguments in regard to his retaliatory discharge claim in our disposition of appellants' fifth assignment of error. Appellants' seventh assignment of error is overruled in part and rendered moot in part. OTHER ISSUES H. Eighth Assignment of Error The trial court further erred in [d]enying Plaintiff Bennett's Motion forLeave to Amend the Complaint to include Bennett's claim against Roadwayfor tortious interference with his employment contract with StarkCounty. In his eighth assignment of error, Bennett asserts that the trial court abused its discretion in denying his motion for leave to amend the complaint, pursuant to Civ.R. 15, to include his claim against Roadway for tortious interference with his employment contract with Stark County. This claim is based upon Bennett's allegation that "[c]ounsel for Roadway has provided information to Bennett's current employer, Stark County, Ohio, to support a hearing to discharge Bennett in which Stark County alleges that Bennett falsified his application for employment as the Stark County Labor [sic] Director." He also argues that Civ.R. 18(A) permits him to join his claim for tortious interference with his employment contract. We disagree. Civ.R. 18(A) provides for the liberal joinder of claims, stating "[a] party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party." Civ.R. 18(A), however, does not set forth the appropriate procedure for bringing additional claims after the initial complaint has been filed. For this reason, Mr. Bennett's reliance onDouglas v. Cincinnati Bd. of Edn. (1992), 80 Ohio App.3d 173, is misplaced. In Douglas, the plaintiff brought multiple claims against the defendant in his original complaint. Id. at 178-79. The trial court, however, refused to allow the plaintiff to present evidence on one of his claims (his tort claim), which had been raised in the initial complaint. The First District Court of Appeals determined that "the trial court erred in prohibiting Douglas from going forward on his tort claim" because Civ.R. 18(A) provides for the liberal joinder of claims in original actions and because barring his tort claim would preclude any redress for other injuries the defendant may have caused regarding this matter. Id. at 179. Unlike the plaintiff in Douglas, Mr. Bennett sought to assert an additional claim, which was not raised in the initial complaint because the events allegedly giving rise to the claim occurred over a year and a half after the initial complaint was filed. Civ.R. 15 governs amended and supplemental pleadings. Civ.R. 15(A) provides that, after the period for automatic amendment has expired, a trial court shall freely grant leave to amend the complaint "when justice so requires." On the other hand, Civ.R. 15(E) states, in part, that "[u]pon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." This court has explained that "[a]n amended pleading [pursuant to Civ.R. 15(A)] is designed to include matters occurring before the filing of the complaint but either overlooked or not known at the time," while "[a] supplemental pleading [pursuant to Civ.R. 15(E)] * * * is designed to cover matters subsequently occurring but pertaining to the original cause." Mork v. Waltco Truck Equip. Co. (1990), 70 Ohio App.3d 458, 461. "Moreover, the staff notes to Civ.R. 15(E) provide that `fundamentally, a supplemental pleading is a mere addition to, or continuation of, the original complaint.'" Id. Therefore, "[u]nder Civ.R. 15, a supplemental pleading must contain only matter[s] in common with the original complaint" and may not raise "[a] new and different cause of action[.]"Id. A trial court's decision whether to grant leave to file a supplemental pleading will not be disturbed on appeal absent an abuse of discretion. See Civ.R. 15(E); Mork, 70 Ohio App.3d at 461. An abuse of discretion is more than an error of judgment, but instead demonstrates "perversity of will, passion, prejudice, partiality, or moral delinquency." Pons v. OhioState Med. Bd. (1993), 66 Ohio St.3d 619, 621. When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Id. In the present case, although Mr. Bennett filed a motion to amend his complaint, we note that the motion was more appropriately termed a supplemental pleading under Civ.R. 15(E), as the events giving rise to the tortious interference with employment contract claim occurred subsequent to the matters in the original complaint. See Mork,70 Ohio App.3d at 461. Apparently, the events giving rise to the cause of action occurred in July 2000, over a year and a half after the initial complaint was filed, when Roadway provided Bennett's then current employer, Stark County, Ohio, with information regarding Bennett's termination from Roadway to support a hearing to discharge Bennett from his employment with Stark County, Ohio. Bennett moved for leave to add this claim after discovery had been completed and after defendants had filed their motions for summary judgment. Furthermore, Bennett's supplemental pleading is more than a mere addition to, or continuation of, the original complaint and sets forth a new and different cause of action. See Mork,70 Ohio App.3d at 461. Hence, we cannot say that, under these circumstances, the trial court abused its discretion in denying Bennett's motion to file an additional claim for tortious interference with his employment contract with Stark County. In addition, Bennett is not prevented from seeking redress for this cause of action, as he may file this claim in a separate complaint. The eighth assignment of error is overruled. I. Ninth Assignment of Error The trial court further erred in [d]enying Plaintiffs' Motion toCompel Nancy Sense to answer questions on deposition. In their ninth assignment of error, appellants contend that the trial court erred in denying their motion to compel Nancy Sense, a secretary for Roadway, to disclose the content of her communications with Glenn and Roadway's attorney, which were made in preparation for her deposition. Specifically, appellants assert that the trial court incorrectly determined that these communications were covered by the corporate attorney-client privilege. We disagree. A trial court has broad discretion in ruling on a motion to compel discovery. State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467,469. Therefore, in the absence of an abuse of discretion, an appellate court will not overturn the trial court's ruling on discovery matters. See id. An abuse of discretion is more than an error of judgment, but instead demonstrates "perversity of will, passion, prejudice, partiality, or moral delinquency." Pons, 66 Ohio St.3d at 621. When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Id. Civ.R. 26(B) provides that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]" (Emphasis added.) Generally, communications between an attorney and his or her client are privileged. See R.C. 2317.02(A). The term "client," as used in R.C. 2317.02(A), includes: a person, firm, partnership, corporation, or other association that, directly or through any representative, consults an attorney for the purpose of retaining the attorney or securing legal service or advice from him in his professional capacity, or consults an attorney employee for legal service or advice, and who communicates, either directly or through an agent, employee, or other representative, with such attorney[.] R.C. 2317.021. In Upjohn Co. v. United States (1981), 449 U.S. 383, 66 L.Ed.2d 584, the United States Supreme Court addressed the attorney-client privilege as it applies to a corporate client. The court found that the attorney-client privilege extended to communications made by employees of a corporate client to a corporation's counsel under certain circumstances. Id. at 390, 66 L.Ed.2d at 591. In determining that the privilege applied in Upjohn, the United States Supreme Court focused on the fact that the communications were made by the employees to corporate counsel, who was acting as such, at the direction of corporate supervisors in order to secure legal advice. Id. at 394,66 L.Ed.2d at 594. The court further considered that "[t]he communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice." Id. While relying on these factors in determining whether the privilege applied in Upjohn, the court admonished that the application of the corporate attorney-client privilege must be determined on a "`case-by-case'" basis. Id. at 396, 66 L.Ed.2d at 596. In addition, Upjohn rejected the proposition that the privilege only applied to high level employees or "control group" and found that the attorney-client privilege in the corporate context applied to all employees regardless of "level[.]" Id. at 391, 66 L.Ed.2d at 592. Furthermore, it is important to note that "[t]he privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney[.]" Id. at 395, 66 L.Ed.2d at 595. In the present case, Bennett and Merendino sought to discover the content of Sense's communications with Glenn and Roadway's attorney, which were made in preparation for her deposition. It is undisputed that Sense was an employee (a secretary) with Roadway, both at the time the deposition was taken and when plaintiffs' employment with Roadway was terminated. As previously mentioned, Upjohn applied the attorney-client privilege in the corporate context to all employees regardless of "level[.]" Id. at 391, 66 L.Ed.2d at 592. Furthermore, Sense's communications with Roadway and Glenn's attorney were made in preparation for her deposition, which was scheduled for the following day. This pre-deposition meeting was held "[i]n the office." Significantly, Sense did not refuse to answer plaintiffs' questions concerning the underlying facts. See id. at 395, 66 L.Ed.2d at 595. In fact, Sense denied that Wears told her that Bennett was having an affair or romantic relationship with Merendino. Accordingly, we cannot conclude that the trial court abused its discretion in finding that the communications were protected under the corporate attorney-client privilege, and therefore, in denying appellants' motion to compel. Appellants' ninth assignment of error is overruled. III. Appellants' first through sixth, eighth, and ninth assignments of error are overruled. Their seventh assignment of error is overruled in part and rendered moot in part. The judgment of the Summit County Court of Common Pleas is affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to Appellants. Exceptions. ____________________________ WILLIAM G. BATCHELDER SLABY, J., WHITMORE, J. CONCUR.

2016-07-06 06:36:03.859457+00

DECISION AND JUDGMENT ENTRY {¶ 1} Appellant, Melissa Strohl, pled guilty to one count of theft, a felony of the fifth degree and a violation of R.C.2913.02(A)(1). The Wood County Court of Common Pleas, upon receipt of her guilty plea, sentenced appellant to a term of nine months incarceration after finding that a minimum sentence would demean the seriousness of her conduct and fail to adequately punish her. Appellant was also ordered to pay restitution in the amount of $300 and was advised that she may be subject to post-release control. {¶ 2} Appellant filed a sole assignment of error challenging her sentence: {¶ 3} "THE IMPOSITION OF AN ABOVE THE MINIMUM TERM OF INCARCERATION WAS CONTRARY TO LAW AND UNSUPPORTED BY THE FINDINGS AND RECORD." {¶ 4} The record, including appellant's presentence investigation report, demonstrates that appellant had not previously been sentenced to a term of incarceration. At the time of her sentencing, the trial court was required to reference R.C.2929.14(B) when it imposed a term of incarceration greater than the minimum term set by R.C. 2929.14(A)(5). Thus, appellant's sentence was impacted by the recent decision in State v. Foster (2006), ___ Ohio St.3d ___, 2006-Ohio-856, which found R.C.2929.14(B) unconstitutional as violative of the Sixth Amendment principles set forth in Blakely v. Washington (2004),542 U.S. 296, and Apprendi v. New Jersey (2000), 530 U.S. 466. {¶ 5} Since the sentencing court relied upon an unconstitutional statute, appellant's sentence is void and contrary to law. Ordinarily, we would remand for resentencing in accordance with the non-severed sentencing statutes. State v.Foster, supra, at ¶ 104; State v. Embry, 6th Dist. No. L-03-1114, 2006-Ohio-729; State v. Lauharn, 6th Dist. No. L-05-1218, 2006-Ohio-1233. {¶ 6} However, we must sua sponte conclude that this appeal is moot. {¶ 7} "A person convicted of a felony has a substantial stake in the judgment of conviction which survives the satisfaction of the judgment imposed upon him or her. Therefore, an appeal challenging a felony conviction is not moot even if the entire sentence has been satisfied before the matter is heard on appeal. (State v. Wilson (1975), 41 Ohio St.2d 236, and State v.Berndt (1987), 29 Ohio St.3d 3, distinguished; State v.Williams (1992), 80 Ohio App.3d 542, disapproved.)" State v.Golston (1994), 71 Ohio St.3d 224, syllabus. {¶ 8} Since appellant only challenges the length of her term of incarceration and not the underlying conviction, we need not hear the appeal if "no evidence is offered from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction." State v. Ambriez, 6th Dist. No. L-04-1382,2005-Ohio-5877, ¶ 9, citing State v. Wilson (1975),41 Ohio St.2d 236, syllabus. {¶ 9} The trial court's judgment entry of sentencing was journalized June 10, 2005. As of March 10, 2006, not including credited days for time already served, appellant's sentence would have been completed. The trial court's docket sheet indicates an estimated release date of February 17, 2006. Appellant did not raise error with respect to the imposition of restitution in the amount of $300. Accordingly, the issues presented by this appeal are moot. {¶ 10} The judgment of the Wood County Court of Common Pleas is affirmed with respect to the order of restitution and costs, and vacated as to the imposition of incarceration. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Wood County. Judgment Affirmed, in part, and Vacated, in part. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. Singer, P.J., Skow, J., Parish, J., concur.

2016-07-06 06:36:13.338284+00

{¶ 1} This original action is presently before this Court for consideration of the motion to dismiss of respondent, Barb Warne of the Lake Erie Correctional Institution. As the sole basis for her motion, respondent contends that the petition of relator, Carl A. Engelhart, does not state a viable mandamus claim because she has no legal obligation to perform the specific act which relator seeks to compel. For the following reasons, we hold that the motion to dismiss has merit. {¶ 2} Relator is presently an inmate at the Lake Erie Correctional Institution, having been previously convicted of criminal offenses in Cuyahoga County and Lorain County, Ohio. Respondent holds the position of Records Supervisor for this institution; as a result, she is responsible for determining the date upon which an inmate at the facility is entitled to be released from custody.1 {¶ 3} In maintaining the instant action, relator essentially seeks the issuance of an order requiring respondent to alter the date of his release on the records of the institution. In support of his prayer for relief, relator has alleged in his petition that, at some point prior to April 2002, the Cuyahoga County Court of Common Pleas issued a judgment entry in which it awarded relator thirty days of jail-time credit in relation to a previously-imposed jail sentence. Relator has further alleged that, although respondent has received a copy of the Cuyahoga County judgment, she has refused to give him proper credit by "setting back" the date of his release by thirty days. Based upon this, he then asserts that a writ of mandamus should be issued because respondent has a legal duty to set a new date for his release from the institution. {¶ 4} In further support of his claim, relator has attached to his petition a copy of a prison record from respondent's office. Our review of the record shows that the document sets forth a summary of information about relator's present incarceration. Specifically, the record indicates that relator is being held on three convictions in Lorain County and four convictions in Cuyahoga County. In addition to stating the nature of each offense upon which the seven convictions were based, the record also delineates the exact sentence relator received for each conviction. Under both the Cuyahoga County convictions and the Lorain County convictions, the range of the sentences was from a term of two years to a term of six months. However, the attached prison record also shows that, unlike the sentences imposed under the four Cuyahoga County convictions, two of the Lorain County sentences were imposed on a consecutive basis so that the aggregate term for all three Lorain County convictions was thirty months. {¶ 5} Besides the copy of the prison record, relator has attached to his petition a copy of a complaint he filed with respondent concerning the credit issue. As part of this specific document, relator expressly stated that the thirty-day credit had been awarded as to two of the four Cuyahoga County sentences in Cuyahoga C.P. Nos. 369133 and 368256. In turn, the prison record indicates that relator began to serve the sentences on those two Cuyahoga County cases before he started serving the aggregate term under the Lorain County convictions {¶ 6} In now moving to dismiss the mandamus petition, respondent asserts that, in light of the information set forth in the documents attached to relator's petition, it is evident that the date of relator's release is controlled by the thirty-month aggregate sentence under the Lorain County convictions. Based upon this, respondent further contends that since the thirty-day credit awarded by the Cuyahoga County court can only be deducted from the two Cuyahoga County sentences, the granting of the credit has no effect upon the calculation of relator's release date under the Lorain County sentences. Therefore, respondent ultimately maintains that a writ of mandamus cannot lie under these facts because she has no legal duty to schedule relator's release for an earlier date. {¶ 7} Upon reviewing the mandamus petition and both of the attached documents, this court holds that the dismissal of this action is warranted. First, the prison record shows that, in the two Cuyahoga County cases in which relator received the thirty-day credit, he was originally sentenced to concurrent terms of twenty-four months and six months. Second, the record indicates that relator started to serve these two Cuyahoga County sentences on April 5, 2000, approximately three weeks before the aggregate term under the Lorain County convictions was even imposed. Accordingly, since the two Cuyahoga County sentences at issue will be completely served before the conclusion of the thirty-month aggregate term under the Lorain County convictions, it follows that relator will not be entitled to be released until he has served the entire thirty-month Lorain County term. {¶ 8} In turn, because the Cuyahoga County court would have jurisdiction to grant relator jail-time credit only in relation to his Cuyahoga County convictions, it further follows that the thirty-day credit from Cuyahoga County cannot be used to shorten the length of the Lorain County aggregate term. Thus, although relator is technically entitled to receive credit for the thirty days, it will not change the date of his release from the institution. {¶ 9} To be entitled to a writ of mandamus, a relator must be able to prove, inter alia, that the respondent has a legal duty to perform the specific act which the relator is trying to compel. State ex rel. Mansonv. Morris (1993), 66 Ohio St. 3d 440, 441. Hence, a mandamus petition will be subject to dismissal under Civ.R. 12(B)(6) if the nature of the relator's allegation are such that, even when the allegations are construed in a manner most favorable to relator, there is no reasonable doubt that he will be unable to prove a set of facts under which he will be entitled to the writ. State ex rel. Boggs v. Springfield Local SchoolDist. Bd. of Edn. (1995), 72 Ohio St. 3d 94, 95. Moreover, in deciding whether the relator has stated a viable claim, a court can consider, in addition to the allegations in the petition itself, any documents the relator has attached and incorporated into the petition. State ex rel.Smith v. Enlow (July 20, 2001), 11th Dist. No. 2000-P-0131, 2001 Ohio App. LEXIS 3282. {¶ 10} In light of the foregoing discussion, this court concludes that the dismissal of the mandamus petition in the instant case is warranted under Civ.R. 12(B)(6). Pursuant to relator's own allegations and attached documents, he will be unable to prove ultimately that respondent has a legal obligation to set the date of his release thirty days earlier than the date on which it is now scheduled. Therefore, because relator cannot establish each element of a mandamus claim, his petition fails to state a viable claim for relief. {¶ 11} Consistent with the foregoing analysis, respondent's motion to dismiss is granted. It is the order of this court that relator's mandamus petition is hereby dismissed. DONALD R. FORD, J., JUDITH A. CHRISTLEY, J., ROBERT A. NADER, J., concur. 1 In the caption of his mandamus petition, relator referred to respondent as "Ms. Warran." In her motion to dismiss, respondent has indicated that her last name is spelled "Warne." For purposes of the caption of our opinion and judgment, this court must spell respondent's name in the manner stated on the petition. However, when it is necessary to refer to respondent's actual name in the text of the opinion, we will use her correct name.

2016-07-06 06:36:06.059093+00

Defendant-appellant Tierre Clay ("defendant") appeals the decision of the juvenile court finding him guilty of rape, a felony of the first degree, in violation of R.C. 2907.02 (A) (2). A complaint was filed in Cuyahoga County, Common Pleas Court, Juvenile division, charging defendant with unlawfully engaging in sexual conduct with another ("victim"), age z, on or about December, 1996. The matter proceeded to trial on January 27, 1998. A review of the transcript reveals the victim was the first witness to testify. The victim stated he was a resident at the Jones Home and shared a room with defendant. He testified that on the night in question, defendant went up to their room to go bed and he followed a few minutes later. The victim said defendant asked him to play poker and they played a game. Defendant won the game and asked the victim to remove his shirt. The victim stated he said "no" and went to bed. It was at this point, that defendant approached the victim. The victim testified defendant started pulling him by the arm off his bed. He stated defendant was a little stronger than he, so defendant dragged him to the side of the bed where he was standing. Next, the victim testified the following occurred: "A. And he — and he told me to get down on my knees and start sucking, sucking his penis, and I was like no. And he was like do it, I was like no, and then he was like — the third time, he was like you better suck my penis before I — before I whoop your ass. His exact words was, I will whoop your ass if you don-'t do it. Q. So what happened next. A. And so I — I was just scared, so I got down on my knees, and then I started sucking his penis, and then he was like — he didn't say nothing, and then after I was done that, he was like stand up. And so I stood up and I went to go back onto my bed and he grabbed me, and he was like — he just grabbed me and he turned me around, and he put his hand on my back and he pushed me down on his bed. And then — and Q. Now were your pants on at this point? A. Yes, and then after he pulled — after he — they were still on and then when after he bent me over, he pulled them down. And then he spread my legs open a little bit, and then he just tried to stick his penis in my buttocks, and so I just started squeezing my cheeks, my butt cheeks closed, and he got his penis between my legs. Q. Did he actually put his penis inside you buttocks? A. No." The victim stated he was softly pleading "no, no, no" when the hall monitor came into the room and defendant asked the monitor for permission to go to the bathroom. The monitor said yes. The victim stated he told the monitor "nothing was going on" because he was afraid defendant would beat him up. After the monitor left the room, defendant returned and the victim stated he saw defendant carrying a cup in his robe and saw him place the cup on a dresser. The victim said the cup was filled with soapy water. The victim and defendant were then ordered by the monitor to go downstairs and see one of the counselors. The victim stated he did not tell this counselor what happened either because he was scared. Upon returning to the room, the victim testified defendant: "* * * came over to me, and he pulled the covers off before I was getting ready to get into bed, he grabbed me by my arm, and before I was getting ready to hop into bed he came over and grabbed me, and then he did the same thing. He bent me over his bed, and then he pulled my pants down and pulled his pants down again and then he put soap on it, on his penis." On cross-examination, the victim stated he was alone in the room with the hall monitor and he knew if he complained to the hall monitor he would be removed from the room. However, the victim said he never informed the monitor of what occurred because he was scared he would get beaten up and afraid he would get in trouble. The victim testified he saw defendant put soap on his penis but still did not yell or scream for anybody. Even though he admitted the monitor would have heard him if he yelled. The victim also said he did not tell the counselor what was going on because he "was — like I just said, I was scared. I wasn't thinking about — about that, going to tell him." Lastly, the victim stated defendant teased him about why he was in the home. The only other witness to testify was defendant. Before he testified, he was informed by the trial court that he did not have to testify pursuant to the Fifth Amendment. Nonetheless, defendant still testified. Defendant stated he was playing a game called "tonk" with the victim when the hall monitor came in the room. He stated the victim was yelling "no, no" because he thought defendant had cheated him. Defendant denied taking a cup to the bathroom and he denied asking the victim to have sex with him. However, he did admit he teased the victim. After hearing both the victim and defendant testify, the trial court moved to disposition. The trial court found defendant guilty of rape, stating: "* * * I'm going to find Tierre Clay to be delinquent as charged in the count against [the victim] by both force and threat of force. Tierre you have a right to appeal my decision to the Eighth District Court of Appeals.* * *" Defendant timely filed his notice of appeal and presents four assignments of error. His first assignment of error states as follows: DEFENDANT-APPELLANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant argues the only evidence that connected him to any sexual conduct was the testimony of the victim. Defendant claims this testimony was open to different interpretations and is not the type of evidence, standing alone, upon which to base a conviction. He maintains the victim's testimony, while true in some instances, was subjective and false in other instances. Plus, he argues there was no physical evidence or medical corroboration to support the victim's testimony. Neither the hall monitor nor the counselor was called to testify and the alleged soapy cup, bedding, and clothing of the parties were not introduced at trial. Defendant claims the victim's testimony was self-serving and in fact the victim was sent to the home for sexual activity against a minor which is the same conduct complained about here. Lastly, defendant submits there is not a scintilla of evidence that rape had taken place. The state counter-argues defendant incorrectly used the victim's juvenile record for impeachment purposes, per R.C.2151.358 (H), and thus we must disregard this portion of his argument. The state maintains there was consistent, credible evidence to satisfy all the elements of rape. It argues the testimony of the victim was the only evidence which could properly relate what occurred on the night in question. This included the victim being forced to perform oral sex on defendant, the victim having his pants pulled down by defendant, and defendant using threats to force the oral sex when defendant said "I will whoop your ass if you don't do it." The victim's testimony, the state claims, also reveals the victim objected to the forced sex and only performed the sex act because he was scared and defendant was bigger than he was. The state concludes by stating the trier of fact heard the testimony of the victim and defendant, was able to judge the credibility of each party, and did not lose its way by finding defendant guilty. It is well-settled law that a reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v.Seiber (1990), 56 Ohio St. 3d 4, 13. Moreover, on reviewing a claim that a conviction is against the manifest weight of the evidence, said conviction cannot be reversed unless it is obvious that the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Garrow (1995),103 Ohio App. 3d 368, 370 Defendant was charged with rape, a violation of R.C. 2907.02 (A) (2), which reads as follows: "(A) (2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." The record indicates the only evidence presented to the trial court was the testimony of both the victim and defendant. The victim described in detail the events of the night in question. He testified about how defendant dragged him off his bed, forced him down on his knees, threatened him with physical abuse if he did not perform the sex act, and finally how he had to perform oral sex on defendant. The victim explained further how defendant grabbed him a second time, pulled his pants down, and attempted to have anal sex with him. Then after not succeeding, defendant went and retrieved a cup of soapy water to apply to his penis for a second attempt at anal sex. The trial court also heard defendant's testimony. Defendant denied the sexual allegations and stated the victim was angry because he believed defendant was cheating him while the two played cards. Defendant also stated he had teased the victim about his reason for being placed in the juvenile home. Defendant argues much of the victim's testimony was uncorroborated and therefore the elements of rape were not satisfied. This same argument was presented in two similar cases involving the rape of a minor. State v. Love (1988). 49 Ohio App. 3d 88 and State v. Gingell (1982), 7 Ohio App. 3d 364. In both cases the courts held there exists no requirement, statutory or otherwise, that a rape victim's testimony be corroborated as a condition precedent to conviction. Love at 91; Gingell at 365. Regarding defendant's argument that the victim's testimony was subjective and false in some instances, it is well-known the credibility of the witnesses is within the province of the trier of fact. State v. DeHass (1967), z Ohio St.2d 230. Based on the foregoing, we find the trier of fact had substantial evidence in the form of the victim's testimony upon which it could reasonably conclude that all the essential elements of rape were proven beyond a reasonable doubt. Therefore, a manifest miscarriage of justice was not created mandating a reversal. Defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: THE COURT ERRED BY THE CONSIDERATION OF HEARSAY NOT ADMITTED INTO EVIDENCE WHICH MATERIALLY AFFECTED DEFENDANT-APPELLANT'S RIGHT TO A FAIR AND UNPREJUDICED TRIAL. Defendant argues the trial court erred in considering improper evidence. Specifically, he complains the trial court relied on a clinical evaluation which was not placed in evidence; the psychologist who prepared the evaluation did not appear at court to testify about it; and the evaluation was not made available to counsel prior to trial. Defendant also contends the trial court erroneously relied on the following hearsay, prejudicial evidence: (1) clinical and psychological evaluations, (2) hearsay counselor testimony, and (3) prior probationary reports not involving this case. As a result of the cumulative effect of these errors, defendant claims he was denied a fair trial because this evidence had no nexus to the rape charge and it was not available for cross-examination. The state counter-argues there was nothing in the evaluation prejudicial to defendant because the evaluation mirrored defendant's testimony at trial. The state also argues that in a bench trial in a criminal case it is presumed the court only considers relevant, competent evidence. Initially we note defendant failed to object to the admission of the hearsay evidence he now complains of and also failed to object to the trial court's reference to defendant's psychological evaluation in its disposition. A litigant's failure to raise an issue in the trial court waives the litigant's right to raise that issue on appeal. Inscoe v. Inscoe (1997), 121 Ohio App. 3d 396. Because defendant failed to object at trial to these alleged errors, he now waives these issues on appeal absent a violation of a substantial right. Id. at 421; see also Civ.R. 61. The trial court referred to the psychological evaluation in its decision when it stated: "Tierre, stand up. Brian. Tierre, I found you to be a delinquent child. There is no doubt in my mind that this took place exactly the way that that young man said it did. I'm looking at your psychologicals. I have had the opportunity to thoroughly review the statements and the evidence. There is no doubt in my mind that you are on this date was a sexual predator, and not once, not twice, but three times." It is true the trial court referred to the psychological evaluation in its disposition. However, from the preceding relevant portion of the transcript it is clear the trial court did not make any substantive findings regarding the evaluation but only a minimal recognition that it reviewed the evaluation. The trial court clearly stated that it reviewed the statements and the evidence when it made its decision regarding defendant's guilt. Plus, defendant does not demonstrate how the trial court's referral to the evaluation prejudiced him or would have changed the outcome of the trial if he had prior access to the evaluation. Moreover, pursuant to the first assignment of error, the record reveals there was enough evidence based solely on the testimony adduced at trial to satisfy all the elements of rape. Defendant also argues the trial court erroneously relied on hearsay testimony; i.e, the victim's testimony regarding the hall monitor and counselor, clinical/psychological evaluations, and prior probationary reports. First, defendant does not indicate in his brief or present to this court testimony or evidence concerning prior probationary reports and/or clinical/psychological evaluations. Second, the trial court mentioned in its opinion that it reviewed a psychological report, but this report is not in the record. Thus, defendant's allegation is unsupported and we are unable to review this argument. Second, the victim's testimony concerning statements made by the hall monitor and counselor was clearly hearsay and not admissible. However, defendant did not object at trial and there is no evidence a substantial right of defendant was violated by the admission of such testimony. Moreover, the trial court did not refer to this testimony in its entry. Also, where a trial judge acts as the fact finder, a reviewing court will be slow to overturn an adjudication on the basis of the admission of inadmissible testimony, unless it appears that the court below actually considered such testimony in arriving at its judgment, as the trial judge is presumed capable of disregarding improper testimony. In re Sims (1983), 13 Ohio App. 3d 37. We find neither the trial court's referral to the psychological evaluation nor the admission of the hearsay testimony contributed to defendant's adjudication of delinquency for rape, therefore any error was harmless beyond a reasonable doubt. See also In re Johnson (1989), 61 Ohio App. 3d 544. In addition, defendant did not demonstrate prejudicial error or that the alleged errors violated his substantial rights. Accordingly, defendant's second assignment of error is overruled. In his third assignment of error defendant states as follows: DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION z OF THE OHIO CONSTITUTION. Defendant argues he was denied effective assistance of counsel because defense counsel failed: (1) to call witnesses such as the hall monitor and the counselor to impeach the credibility of the victim, (2) to vigorously cross-examine the victim, (3) to produce inconsistent statements made by the victim, (4) to submit certified copies of judgment entries showing the victim was delinquent due to his raping another minor and thus he had knowledge of the sexual acts he now complains of, (5) to raise any objections to hearsay testimony and speculation referred to by victim while testifying, and (6) to present evidence such as hospital medical records which would materially challenge the victim's credibility. To prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance and resultingprejudice. Strickland v. Washington (1984), 466 U.S. 668. Under the performance inquiry, this court must determine, considering all of the circumstances, whether "counsel's representation fell below an objective standard of reasonableness." State v. Campbell (1994), 69 Ohio St. 3d 38, 43. Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Id. The prejudice inquiry involves a determination of "whether there is a reasonable probability that, absent the errors, the fact finder would have" acquitted the defendant. Strickland at 694. Lastly, the defendant bears the burden of proving trial counsel's ineffectiveness, since in Ohio a properly licensed attorney is presumed competent.Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299. First, defendant complains defense counsel failed to call the hall monitor and counselor to impeach the credibility of the victim and corroborate his innocence. Defendant does not explain how either of these potential witnesses' testimony would have exculpated him or impeached the victim. In fact, a review of the transcript indicates neither the hall monitor nor the counselor witnessed the sexual act or had knowledge it occurred on the night in question. Both of these potential witnesses played only a minor role in the events that transpired. Moreover, any testimony they would have offered would have been substantially corroborative. Plus, the failure to call witnesses is a tactical decision and the Sixth Amendment does not protect a complaining defendant from counsel's tactical failures. State v. Warden (1987), 33 Ohio App. 3d 87. Second, defendant claims defense counsel failed to vigorously cross-examine the victim regarding his age, school level, description, size, weight, or reason for confinement. He argues these facts are essential and would have established the victim had prior and independent knowledge of sexual acts which is critical because there was no physical evidence of abuse. The essence of defendant's argument is establishing the victim had knowledge of the very sexual acts he was subjected to. The victim's age and physical characteristics would not have established this knowledge. The only cross-examination that would have established this knowledge would have been questions concerning the victim's own sexual past which consisted of his being committed to the Jones Home for delinquent sexual acts. However, pursuant to R.C. 2151.358 (H) a juvenile court delinquency adjudication cannot be used to impeach the general credibility of the witness. Therefore, any cross-examination by defense counsel regarding the victim's past delinquencies would have been improper. Third, defendant argues the victim stated he told the hall monitor and counselor that nothing happened, yet the victim was later transported to the hospital for a medical examination for sexual abuse. Therefore, defendant reasons the victim had to have changed his story in order to have undergone a medical examination. We cannot address this argument because defendant is arguing facts which are not in the record. As a result, we can neither substantiate nor deny defendant's claims because there are no facts or evidence upon which to base a decision. Fourth, defendant argues defense counsel failed "to produce evidence of [the victim's] prior sexual conduct and delinquencies." Pursuant to R.C. 2151.358 (H) a juvenile's past juvenile adjudications cannot be used as impeachment against him. Fifth and sixth, defendant argues defense counsel failed to object to the hearsay testimony and speculation the victim testified about. And defense counsel failed to present evidence, such as hospital records, which would have materially challenged the credibility of the victim. In United States v. Teague (1992).953 F.2d 1525, 1531, the Eleventh Circuit Court of Appeals concluded that counsel has the ultimate authority to decide issues concerning what evidence should be introduced, what stipulations should be made, what objections should be raised, and what pretrial motions should be filed. The Court called these decisions "non-fundamental" and found that they should not be second-guessed because they are considered trial strategy. A review of the record supports defendant's claim that defense counsel did not object to obvious hearsay testimony and did not submit hospital records that may have been exculpatory. The record indicates defense counsel's strategy was to undermine the victim's credibility by showing he had two easy opportunities to terminate his contact with defendant but chose not to do so. While this strategy may not have been the most effective in hindsight, defense counsel's representation did not fall below an objective standard of reasonableness because he pursued it as a strategy. Plus, an attorney's judgment need not necessarily be right, as long as it is reasonable. See Strickland,466 U.S. at 687-691. We find defense counsel's representation of defendant was both reasonable and nonprejudicial to defendant. Accordingly, defendant's third assignment of error is overruled. Defendant's fourth assignment of error states as follows: THE TRIAL COURT ABUSED ITS DISCRETION BY INDICATING A PRECONCEIVED PREDISPOSITION REGARDING GUILT AND SENTENCE BY MAKING EVIDENTIARY AND OTHER RULINGS WHICH SERVED TO DENY THE DEFENDANT-APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Defendant argues the trial court had a preconceived disposition towards finding him guilty before rendering a judgment. He bases this claim on several remarks the trial court made on the record. The first remark defendant complains of was when the trial court called him a "sexual predator." The second remark defendant complains of was when the trial court referred to the indictment and stated "the idiot who filed the paper didn't make three different rapes." The third instance of judicial bias defendant complains of concerns the following exchange between him and the trial court: "MASTER CLAY: I want to test — THE COURT: You should also know that I have read the psychological evaluation, which speaks to the stories that you told to the clinicians about the incident. THE COURT: Okay Tierre, you know that you don't have to testify based on what your attorney just said to me and what I've told you. Do you understand that? MASTER CLAY: Yes, sir. THE COURT: And you still want to testify? MASTER CLAY: Yes sir. THE COURT: You understand that right now, there is a story that's out there. If you want to put another story out there, or correct it, or make any sort of change in it, that's of course your right to do so. But it's also your right not to do it. So what do you want to do? MASTER CLAY: I want to testify." Defendant maintains this colloquy was a subtle form of intimidation and a clear indication that the judge had a preconception of prejudice against him and any testimony he gave. The state counter-argues defendant "puts a sinister spin" on the exchange that occurred between he and the trial court. The state claims a more rational explanation is that the trial court was attempting to explain the Fifth Amendment right against selfincrimination to a naive seventeen-year-old juvenile. What a judge learns in his judicial capacity, whether from pretrial proceedings, co-defendant pleas, or evidence presented in a prior case, is properly considered as judicial observations and creates no personal bias requiring recusal. In re Daniel E. (1997), 122 Ohio App. 3d 139, citing Code of Judicial Conduct, Canon 3. In State v. Girts (1997), 121 Ohio App. 3d 539, 562, citingState v. Wade (1978), 53 Ohio St. 2d 182, 188, this court considered a claim of judicial bias and stated "challenged statements and actions of the trial judge in a criminal case will not justify a reversal of the conviction, where the defendant has failed in light of the circumstances under which the incidents occurred to demonstrate prejudice." The court went on to list four factors to be used in determining whether a trial judge's remarks were prejudicial: (1) defendant has the burden of proof to demonstrate prejudice; (2) it is presumed that the trial judge is in the best position to determine when a breach is committed and what corrective measures are called for; (3) the remarks are to be considered in light of the circumstance under which they were made; (4) the effect of the remarks have on the jury are to be considered; and (5) the possible effect of the remarks on the effectiveness of counsel is to be examined. Id. at 562. Defendant has not met his burden of showing how the remarksprejudiced him. An aggregate review of the transcript indicates the state's characterization of the trial court's remarks to defendant is correct. The trial court was merely trying to explain a constitutional right to a juvenile witness. Regarding the sexual predator remark and the remark about the person who filed the indictment, they do not, standing alone, indicate any bias by the trial court. As a result defendant's fourth assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover from appellant its 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 Juvenile Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KENNETH A. ROCCO, J. JAMES D. SWEENEY, J., CONCUR. _______________________ JOHN T. PATTON PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22 (B) 22 (D) and 26 (A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22 (E) unless a motion for reconsideration with supporting brief, per App.R. 26 (A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22 (E). See, also, S.Ct.Prac.R. II, Section 2 (A) (1)

2016-07-06 06:36:06.672668+00

OPINION Appellant William M. Polen appeals from the Carroll County Common Pleas Court's decision finding him to be a sexual predator. For the following reasons, the trial court's judgment is affirmed. In January 1989, police in Minerva, Ohio investigated complaints that appellant had been taking pictures of various neighborhood children. Upon a search of appellant's residence, eight photo albums were recovered containing pictures of thirty-two children ranging in age from seven to fifteen in various states of dress, some of whom were totally naked. Appellant was indicted on five counts of illegal use of a minor in nudity-oriented material or performance, five counts of child endangering and one count of gross sexual imposition. Appellant ended up pleading no contest to two counts of illegal use of a minor in violation of R.C. 2907.323(A)(1), a second degree felony. On May 22, 1989, appellant was sentenced to five to fifteen years on both counts to run concurrently. In June 1997, the Department of Corrections and Rehabilitation informed the court that it had screened appellant and recommended that appellant be adjudicated a sexual predator. In January 1998, appellant moved to dismiss all sexual predator proceedings on a variety of grounds including failure to prosecute, ex post facto, double jeopardy, and equal protection violations. The court overruled this motion. On February 3, 1999, the state filed a motion for a sexual predator hearing regarding appellant. That day, the court appointed a public defender and scheduled the hearing for February 24, 1999. On February 18, appellant filed two pro se motions. First, appellant requested additional time as he had not yet met with his attorney. He asked that the hearing be rescheduled until no earlier than April 9, 1999 so that he could prepare his defense. Appellant also filed a motion for a psychological evaluation. Both motions were denied at the February 24 hearing. The court held that appellant had been transferred to the Carroll County Jail on February 18 which gave him ample opportunity, five or six days, to meet with his attorney and prepare a defense. The court also stated that it failed to see what a psychological evaluation would reveal. Thereafter, the hearing proceeded with testimony from appellant and from the man who was the Minerva Chief of Police at the time of appellant's arrest. The court reviewed items such as statements of the victims and appellant's presentence report. On February 25, 1999, the trial court held that the state established by clear and convincing evidence that appellant is a sexual predator. Appellant filed a timely appeal in which he alleges five assignments of error. Appellant's first assignment of error states: "THE COURT ERRED AND COMMITTED PLAIN ERROR IN ADJUDICATING THE APPELLANT AS A SEXUAL PREDATOR PURSUANT TO REVISED CODE SECTION 2950 ET SEQ., FOR THE REASON THAT NO STANDARD IS ESTABLISHED FOR APPLYING THE FACTORS IN REVISED CODE 2950.09(B)(2), THEREBY RENDERING THE LAW VAGUE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION." Before labeling a defendant a sexual predator, the court must determine that the defendant is incarcerated for a sexually oriented offense and consider the factors set forth in R.C.2950.09(B)(2). Appellant contends that these factors provide inadequate guidelines for the trial court, resulting in an unconstitutionally vague sexual predator statute. However, this argument is without merit for we have previously addressed this vagueness issue by holding that" [s]aid factors clearly provide guidance and minimum standards which must be followed by the trial court during its proceedings." State v. Woodburn (Mar. 23, 1999), Columbiana App. No. 98 CO 6, unreported, 10. We will delve into the specific application of these factors to the case at barinfra under appellant's fifth assignment of error. Appellant's second assignment of error alleges: "THE TRIAL COURT ERRED IN FINDING APPELLANT A SEXUAL PREDATOR FOR THE REASON THAT REVISED CODE 2950, AMENDED BY HOUSE BILL 180 IS AN UNCONSTITUTIONAL EX POST FACTO LAW IN THAT APPELLANT'S CRIMES WERE COMMITTED PRIOR TO THE AMENDMENT OF TITLE 2950." Appellant concedes that the case of State of Cook (1998),83 Ohio St. 3d 404, held that the application of the sexual predator statute to conduct which occurred prior the statute's effective date does not violate the Ex Post Facto Clause of Section 10, Article 1 of the United States Constitution. In Cook, it was determined that the registration and notification requirements of the sexual predator statute were remedial rather than punitive.Id. at 416, 423. See, also, State v. Goodballet (Mar. 30, 1999), Columbiana App. No. 98 CO 15, unreported, 15; Woodburn, supra at 2-3. Appellant's complaint under this assignment of error is extremely convoluted and reads as follows: "Herein, appellant argues that amended Revised Code 2950 is an unconstitutional ex post facto law as applied to him for the reason that specific penalties, not considered by the Ohio Supreme Court, in Cook are a direct result in his case. For example, this appellant having never been previously convicted as an adult, of any crime has served ten (10) years in prison for a sexually oriented offense, involving juveniles wherein no juvenile was ever touched. This appellant previously a college professor with two years of formal educational training beyond a masters degree level, should he have the good fortunate to actually serve out five (5) more years of a five to fifteen year sentence, will be denied the right to ever get a passport to travel outside this country. Clearly, this constitutes an additional penalty that was unforeseen at the time a plea was entered in this case in May, 1989." Appellant argues, along the lines of Crim.R. 11, that the loss of a passport is a penalty which he should have been informed of when he pled no contest. However, a defendant is not required to be informed about the collateral consequences of a guilty plea such as the loss of the right to vote or the loss of a passport.State v. Condron (Mar. 27, 1998), Montgomery App. No. 16430, unreported, 7. See, also, United States v. Brady (1970),397 U.S. 742, 755 (holding that a defendant must be informed of direct consequences but not collateral consequences of a plea) Moreover, appellant makes absolutely no mention of which law he is claiming denies him the right to ever obtain a passport. How this unidentified federal law is related to the sexual predator statute or an ex post facto argument is not apparent from appellant's brief. Accordingly, this assignment of error is without merit. Appellant's third assignment of error provides: "THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT STRIKING DOWN AN UNCONSTITUTIONAL REVISED CODE TITLE 2950 AS AMENDED BY HOUSE BILL 180 IN THAT, FINDING THE APPELLANT TO BE A SEXUAL PREDATOR VIOLATED HIS CONSTITUTIONAL RIGHTS AS GUARANTEED BY ARTICLE 1, SECTION 1 OF THE OHIO CONSTITUTION." Appellant cites State v. Williams (Jan 29, 1999), Lake App. No. 97-L-191, unreported, wherein the Eleventh Appellate District held that the sexual predator statute is unconstitutional on grounds that it violated Section 1, Article I of the Ohio Constitution. However, we have previously announced that we disagree with the decision in Williams. Woodburn, supra at 11 (upholding the constitutionality of the statute stating that it does not unduly oppress or interfere with the rights of individuals). Accordingly, this assignment of error is overruled. Appellant's fourth assignment of error contends: "THE TRIAL COURT ERRED IN DENYING APPELLANT'S PRO SE MOTIONS FOR A CONTINUANCE AND HIS REQUEST FOR PSYCHOLOGICAL EVALUATION PRIOR TO THE SCHEDULING OF THE SEXUAL PREDATOR HEARING HEREIN, THEREBY PREJUDICING APPELLANT IN VIOLATION OF HIS CONSTITUTIONAL GUARANTEE, TO DUE PROCESS OF LAW PURSUANT TO THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION." Appellant complains that the court should have ordered a psychological evaluation because an offender's behavioral characteristics must be considered before that offender is determined to be a sexual predator. See R.C. 2950.09(B)(2)(j). Pursuant to R.C. 2950.09(B)(1), an offender may call and examine expert witnesses during a sexual predator hearing. However, it is within a court's sound discretion as to whether a particular indigent defendant will receive a court-appointed expert witness to assist him in preparing for a sexual predator hearing.Woodburn, supra at 16. A defendant who desires a court-appointed expert to perform a psychological evaluation in preparation for a sexual predator hearing must demonstrate a particularized need.Id. at 17-18. A bare assertion that an evaluation is critical is inadequate. Id. at 17, In the case at bar, appellant merely asserts that a psychological evaluation is crucial as it is the only way a determination can be made on whether he is likely to commit future sexually oriented offenses. Appellant states that he had a psychological evaluation in 1992 when he was preparing for a parole hearing, but he does not submit the results of this evaluation for the court. Appellant fails to demonstrate any particularized need for a psychological evaluation at the present time. As such, this argument is overruled. Within this assignment of error, appellant also claims that the court erred in failing to grant his February 18 motion to continue his hearing. The trial court noted that appellant had been incarcerated locally for five or six days which constituted an adequate amount of time to meet with his public defender and prepare a defense. Appellant complains that this span of time contained a weekend. The denial of a continuance is governed by an abuse of discretion standard of review. State v. Lorraine (1993), 66 Ohio St. 3d 414,423. The circumstances of each scenario should be scrutinized on a case-by-case basis. The delay requested by appellant was rather long, almost two months. See State v. Grant (1993), 67 Ohio St. 3d 465, 479 (listing the length of the requested continuance as a factor). Considering that appellant knew for over a year that sexual predator proceedings were likely, the length of the requested continuance was unreasonable.1 Moreover, even if we are of the view that a reasonable continuance would have been preferable, that is not a proper criteria in that we cannot substitute our judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St. 3d 161,169. As the trial court had previously read appellant's motion to dismiss the sexual predator proceedings, it was not unreasonable for the court to assume that appellant had begun preparing before his formal notice that a hearing had been set. Furthermore, appellant's counsel stated that he believed he was prepared for the sexual predator hearing. (Tr. 3) Therefore, under the circumstances of the case at bar, this argument fails, and this assignment of error is overruled. Appellant's fifth assignment of error argues: "THE TRIAL COURT ERRED THEREBY PREJUDICING THE APPELLANT IN FINDING THAT THE STATE HAD PROVEN BY CLEAR AND CONVINCING EVIDENCE THAT HE WAS A SEXUAL PREDATOR PURSUANT TO REVISED CODE 2950." Pursuant to R.C. 2950.09(C)(1) and (2), an incarcerated person who is convicted of a sexually oriented offense prior to the effective date of the statute, as was appellant, may be labeled a sexual predator after a hearing in the trial court during which the court reviews the evidence presented and considers all relevant factors, including, but not limited to those set forth in R.C. 2950.09(B)(2). The factors which the court must consider are as follows: "(a) The offender's age; (b) The offender's prior criminal record regarding all offenses, including, but limited to, all sexual offenses; (c) The age of the victim of the sexually oriented offense for which sentence is to be imposed; (d) Whether the sexually oriented offense for which sentence is to be imposed involved multiple victims; (e) Whether the offender used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting; (f) If the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense and, if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sexual offenders; (g) Any mental illness or mental disability of the offender; (h) The nature of the offender's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse; (i) Whether the offender, during the commission of the sexually oriented offense for which sentence is to be imposed, displayed cruelty or made on or more threats of cruelty; (j) Any additional behavioral characteristics that contribute to the offender conduct." Appellant stipulated that he was convicted of two sexually oriented offenses in 1989. See R.C. 2950.01(D)(2)(d) citing2907.323. Thus, the trial court's determination hinged on whether there existed clear and convincing evidence that appellant was a sexual predator, i.e., likely to commit future sexual offenses. See Cook, supra at 408. Clear and convincing evidence is a measure of proof that requires more than the preponderance of the evidence standard and less than the beyond a reasonable doubt standard. Woodburn, supra at 13, citing Cincinnati Bar Assn. v.Massengale (1991), 58 Ohio St. 3d 121, 122. Evidence is clear and convincing if it results in the firm belief that it is highly probable that the fact sought to be established is true. Id.; Black's Law Dictionary (7 Ed. 1999) 577. Appellant argues that the trial court erred by finding he was a sexual predator based only upon the factor of the age of the victims. However, the trial court's judgment entry states more relevant factors than solely the age of the victims. The court recognized that appellant was forty-six years old at the time of his offenses and had no prior sex offenses on his record. See R.C. 2950.09(B)(2)(a) and (b). Nevertheless, the court found that the fact that there were multiple victims worked against appellant. See R.C. 2950.09(B)(2)(d). Furthermore, the court read statements from the various neighborhood children whom appellant had photographed. The court mentioned the fact that police recovered eight photo albums from appellant's residence. These albums contained pictures of thirty-two children ranging in age from seven to fifteen, some of whom were completely naked. Thus, the court theorized that appellant was most probably a pedophile. See R.C.2950.09(B)(2)(c). The court stated that pedophiles have a high rate of recidivism. Additionally, one can infer that appellant engaged in a pattern of wrongful conduct from the fact that the eight photo albums were compiled over an eighteen month period during which appellant encouraged children to frequent his house which was well-stocked with games. See R.C. 2950.09(B)(2)(h). Moreover, the court stated that the two offenses for which appellant was convicted were classified as second degree felonies, making them very serious offenses. The court also pointed out that appellant did not complete any treatment program while incarcerated. Although appellant testified that the prison lacked such a program, the fact remains that appellant has not received treatment. Further, the court held that there was no evidence that appellant suffered from any mental illness or disability or abnormal behavioral characteristics that could have contributed to his criminal conduct. See. R.C. 2950.09(B)(2)(g) and (j) Appellant did not allege otherwise. With regards to appellant's masters degree and two additional years of graduate work, the court found that appellant used his superior intelligence to manipulate the children into compliance with his desire to photograph them naked. State v. Dye (1998), 82 Ohio St. 3d 323, 327. The above analysis of the relevant factors provides a high degree of proof supporting the court's finding that there existed clear and convincing evidence that appellant was likely to engage in future sexually oriented offenses. In accordance, this assignment of error is overruled. As such, the trial court's decision finding that appellant is a sexual predator is affirmed. Cox, P. J., dissents; see dissenting opinion. Donofrio, J., concurs. APPROVED: _________________________ JOSEPH J. VUKOVICH, JUDGE 1 As set forth in the facts, in January 1998, appellant filed a motion to dismiss the sexual predator proceedings which he knew had been recommended by the Department of Corrections in June 1997. His motion was accompanied by a detailed memorandum challenging the constitutionality of the sexual predator statute. Thus, when the state filed a motion for a hearing with regards to appellant on February 3, 1999, appellant had been long anticipating this probable situation.

2016-07-06 06:36:06.722549+00

Eddie Mae Hope appeals from a decision of the common pleas court granting summary judgment in favor of Kaufmann's in connection with injuries to her right wrist and left knee sustained when she tripped and fell in the parking lot as she walked to her car after purchasing a robe and some cologne on December 21, 1996 at the Kaufmann's department store in- University Heights, Ohio. She urges the court erred because genuine issues of material fact exist as to whether the condition of the parking lot itself or its condition when combined with attendant circumstances became unreasonably dangerous. After careful consideration of the facts in this case and the applicable law, we have concluded that the defect in the parking lot where Hope tripped and fell is a minor or trivial imperfection which is not unreasonably dangerous and which is commonly encountered and to be expected, and that the attendant circumstances in this case, taken together did not divert her attention, enhance the danger of the defect, or contribute to her fall, and, therefore, we affirm the judgment of the trial court. The record before us reveals that around 5:30 p.m. on the evening of December 21, 1996, Eddie Mae Hope drove to the Kaufmann's department store located in University Heights, Ohio, in order to purchase gifts. Around 6:45 p.m., after making a purchase of a robe and a bottle of cologne, Hope exited through the north end doors of the store and, carrying her purchases in a single shopping bag along with her purse, she proceeded to walk across the parking lot toward her vehicle. As she moved through the parking lot, her foot came in contact with a raised portion of the asphalt in the lot, and she fell, sustaining injuries to her right wrist and her left knee. She then returned to the store and spoke with two security officers. She showed them the parking lot patch on which she fell, and they filled out a report describing the incident. Later that evening, Rusty Shultz, one of the Kaufmann's security officers, photographed the area in which she fell, and measured the raised portion of the parking lot and found it to be approximately threequarters of an inch high. In her complaint against Kaufmann's, Hope alleged their negligence in allowing a dangerous condition in the parking lot resulted in her injuries. Kaufmann's filed a motion for summary judgment, which the court granted. Hope now appeals and presents two assignments of error for our review. They state: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN CONCLUDING THAT DEFENDANT SATISFIED ITS EVIDENTIARY BURDEN OF GRANTING SUMMARY JUDGMENT. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN CONCLUDING THAT THE PREMISES DEFECT AT ISSUE HEREIN WAS NOT ACTIONABLE AS A MATTER OF LAW. Hope contends the court erred in granting summary judgment because she argues that Kaufmann's did not satisfy its burden to establish entitlement to judgment as a matter of law; and further, she claims that the court erred when it determined the condition of the parking lot where she fell did not constitute a substantial defect. Kaufmann's maintains the court correctly granted summary judgment because Hope established no substantial defect in the parking lot. The issue before us, then, is whether the court erred in granting Kaufmann's motion for summary judgment. In this regard, we recognize that Civ.R. 56 provides in part: * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Further, a party seeking summary judgment bears the initial burden of demonstrating an absence of genuine issues of material fact concerning an essential element of an opponent's case. SeeDresher v. Burt (1996), 75 Ohio St. 3d 280, 292. A defendant may satisfy this burden by showing an absence of evidence to support the non-moving party's case. Once the moving party has satisfied this burden, the non-moving party then has the burden to set forth specific facts showing there is an issue for trial. Id. Regarding Kaufmann's claim, Hope failed to establish a substantial defect in the parking lot. We recognize that in Cashv. Cincinnati (1981), 66 Ohio St. 2d 319, the court established that a variation in elevation in a sidewalk of two inches or less is trivial, and therefore not actionable. Further, in Helms v.American Legion, Inc. (1966), 5 Ohio St. 2d 60, the court stated in its syllabus: The owners or occupiers of private premises are not insurers of the safety of pedestrians traversing those premises, and minor or trivial imperfections therein, which are not unreasonably dangerous and which are commonly encountered and to be expected, as a matter of law do not create liability on the part of such owners or occupiers toward a pedestrian who, on account of such minor imperfection, falls and is injured. Further, in Backus v. Giant Eagle, Inc. (1996), 115 Ohio App. 3d 155, the court stated at page 157 of its opinion: Municipalities and private landowners are not liable as a matter of law for minor defects in sidewalks and other walkways because these are commonly encountered and pedestrians should expect such variations in the walkways. Kimball v. Cincinnati (1953), 160 Ohio St. 370; Gaflagher v. Toledo (1959), 168 Ohio St. 508; Helms v. Am. Legion, Inc. (1966), 5 Ohio St. 2d 60. Finally, the court stated in paragraph two of its syllabus inJeswald v. Hutt (1968), 15 Ohio St. 2d 224: Generally, no liability exists for minor imperfections in the surface of such a parking area — those slight irregularities reasonably to be anticipated in any traveled surface. Here, the record reflects that in support of its motion for summary judgment, Kaufmann's presented Shultz's affidavit in which he stated he measured the height of the asphalt patch on which Hope fell and found it to be less than one inch high. The photographs in the record demonstrate a relatively minor raised patch in the asphalt covered surface of the parking lot. In response, Hope contended the attendant circumstances caused the patch to be a substantial defect. Our review of the record in this case reveals that both Shultz's measurements and the photographs demonstrate that the buckled pavement in the parking lot failed to create a triable jury issue because they depict the defect as the kind within the classification of a minor imperfection — one reasonably to be anticipated on a traveled surface. In accordance with the case authority presented, we have concluded the condition Hope encountered in Kaufmann's parking lot is a minor imperfection. Hope next argues that the darkness in the parking lot, the shopping bag and purse she carried, the crowded condition in the parking lot, and the heavy holiday traffic constituted attendant circumstances which created an unreasonably dangerous condition and caused the minor defect to become substantial. In Backus,supra, the court stated: * * * an attendant circumstance is the circumstance which contributes to a fall and a circumstance which is beyond the control of the injured party. There is a paramount duty upon a pedestrian to look where he may be walking. In McGuire v. Sears, Roebuck Co. (1996), 118 Ohio App. 3d 494, the court described attendant circumstances and stated at 499: * * * there is no precise definition of attendant circumstances, but they generally include any distraction that would come to the attention of a pedestrian in the same circumstances and reduced degree of care an ordinary person would exercise at the time. The attendant circumstances must, taken together, divert the attention of the pedestrian, significantly enhance the danger of the defect, and contribute to the fall. As the court stated in Stockhauser v. Archdiocese off Cincinnati (1994), 97 Ohio App. 3d 29, at 33: To render a minor defect substantial, attendant circumstances must not only be present, but must create a greater than normal, and hence substantial, risk of injury. * * * The attendant circumstances must, taken together, divert the attention of the pedestrian, significantly enhance the danger of the defect, and contribute to the fall. (Citations omitted.) Hope admitted in her deposition that at the time of her fall, she carried a Kaufmanns shopping bag and her purse, that no snow covered the patch where she fell, that she did not recall the store being crowded or notice anyone else in the parking lot at the time of her fall, and that she had been walking at her regular speed and looking in the distance when she fell. Based upon the facts presented here, we are unable to conclude that the conditions of the parking lot during the holiday shopping season diverted Hope's attention, significantly enhanced the danger of the defect, and contributed to Hope's fall. These circumstances did not contribute to her fall, nor did they render the trivial defect substantial. Accordingly, we have concluded that Hope's assignments of error are not well taken because no genuine issues of material fact exist and Kaufmann's is entitled to judgment as a matter of law. Accordingly, the judgment of the trial court is affirmed. Judgment affirmed. It is ordered that appellee recover of appellant its 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. PATRICIA A. BLACKMON. J., and ANNE L. KTTJRANE. J., CONCUR ____________________ PRESIDING JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22 (B), 22 (D) and 26 (A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to Apo.R. 22 (E) unless a motion for reconsideration with supporting brief, per App.R. 26 (A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22 (E). See, also S.Ct.Prac.R. II, Section 2 (A) (a)

2016-07-06 06:36:05.673363+00

OPINION Appellant Ronald J. Rotaru, Superintendent, Ohio Division of Real Estate is appealing the decision of the Fairfield County Court of Common Pleas which determined that Appellee Jane Palmer is entitled to participate in the real estate recovery fund. The following facts give rise to this appeal. On October 28, 1996, Appellee Palmer entered into a "Partnership Agreement" with Raymond L. Cramblit. Pursuant to the terms of this agreement, appellee deposited $25,000, with Cramblit, and Cramblit added $5,000. Cramblit used the $30,000 to purchase property from a third-party seller. Under the terms of the agreement, Cramblit agreed to negotiate the buy and market the resale of the property on behalf of appellee and himself. In return, appellee was to receive back her initial investment of $25,000, plus one-half of the profits from the resale of the property. Cramblit was to receive back his initial investment of $5,000, plus one-half the profits from the resultant sale of the property after deducting selling fees including a brokerage fee. Despite the fact that the property sold for $100,000, Cramblit only gave appellee a total of $8,000 from the proceeds of the sale of the real estate. Thereafter, appellee commenced a civil action1, in the Fairfield County Court of Common Pleas, seeking to recover her loss of $18,000. Cramblit failed to file an answer and the trial court granted default judgment. The trial court subsequently filed a Nunc Pro Tunc Default Judgment Entry, on November 6, 1997, in which it determined that Cramblit is a licensed real estate broker; Cramblit acted as a real estate broker on behalf of appellee; and Cramblit acted in violation of R.C. 4735.18 in several respects. This judgment was never appealed. Appellee attempted to collect the judgment from Cramblit. Ultimately, appellee learned that Cramblit had filed for Chapter 7 bankruptcy. Therefore, on August 8, 1997, appellee filed an application for order directing payment out of the real estate recovery fund. On January 28, 1998, appellee filed a motion for summary judgment against appellant. On February 12, 1998, appellant also filed a motion for summary judgment. On May 6, 1998, the trial court issued its judgment entry granting appellee's motion for summary judgment and denying appellant's motion for summary judgment. The trial court concluded appellee had met the jurisdictional requirements contained in R.C.4735.12(B)(4). Appellant timely filed his notice of appeal and sets forth the following assignments of error for our consideration: I. THE JUDGMENT WHICH FORMS THE BASIS OF APPELLEE'S APPLICATION IS NOT CONDUCT FOR WHICH A REAL ESTATE LICENSE IS REQUIRED. II. A DEFAULT JUDGMENT NUNC PRO TUNC IS NOT A JUDGMENT FOR WHICH RECOVERY IS CONTEMPLATED UNDER REVISED CODE 4735.12. Summary Judgment Standard Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. As such, we must refer to Civ.R. 56 which provides, in pertinent part: Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall (1997), 77 Ohio St.3d 421,429, citing Dresher v. Burt (1996), 75 Ohio St.3d 280. It is based upon this standard that we review appellant's assignments of error. II We begin our analysis by addressing appellant's second assignment of error first as this is a procedural issue that may preclude recovery under the real estate recovery fund. In his second assignment of error, appellant contends that a default judgment nunc pro tunc is not a judgment for which recovery is contemplated under R.C. 4735.12. In the case of Ball v. Ritenour (1989), 46 Ohio App.3d 88, the court explained that a default judgment may not be the basis for recovery under the real estate recovery fund. The court held: A default judgment obtained against a real estate agent on the grounds that the agent failed to appear and defend is not a `final judgment * * * on the grounds of conduct that is in violation of' R.C. Chapter 4735 or `that is associated with an act or transaction of' a real estate agent, within the meaning of R.C. 4735.12(B). Therefore, a plaintiff who is unable to recover the amount of such a default judgment from the agent is not entitled to recover from the Real Estate Recovery Fund. Id. at paragraph one of the syllabus. In the case sub judice, appellee filed a civil complaint against Raymond Cramblit and Century 21 Happy Homes, on April 30, 1997, alleging causes of action for breach of partnership agreement, conversion, misrepresentation, fraud, failure to account for or remit money, gross negligence and breach of fiduciary duties. Cramblit failed to file an answer and the trial court entered a default judgment. However, appellee subsequently moved for a default judgment nunc pro tunc to comport with the requirements of R.C. 4735.12. The trial court entered a judgment entry nunc pro tunc, on November 6, 1997, which determined that Cramblit violated R.C. 4735 and that the violation was associated with an act or transaction of a real estate agent within the meaning of R.C. 4735.12(B). We find the judgment entry nunc pro tunc differs in this case from the facts set forth in Ball because the judgment entry nuncpro tunc is not based solely on appellant's failure to appear and defend. The trial court made additional findings regarding Cramblit's conduct. As such, we find this case distinguishable from the facts of Ball. Therefore, this is a final judgment as required under R.C. 4735.12. Appellant's second assignment of error is overruled. I Appellant maintains, in his first assignment of error, the trial court erroneously determined the judgment which formed the basis of appellee's application for recovery, from the real estate recovery fund, was based upon conduct by the licensee requiring a real estate salesman or broker's license. We agree. We begin our analysis by defining who is entitled to recover under the real estate recovery fund. R.C. 4735.12(B)(1) addresses this issue and provides, in pertinent part: (B)(1) Any person who obtains a final judgment in any court of competent jurisdiction against any broker or salesperson licensed under this chapter, on the grounds of conduct that is in violation of this chapter or the rules adopted under it, and that is associated with an act or transaction of a broker or sales person specified or comprehended in division (A) or (C) section 4735.01 of the Revised Code * * *. (Emphasis added.) We find the underlined portion of the above statute dispositive of this matter on appeal. Clearly, Cramblit's conduct violated R.C. 4735, however, in doing so, what we must focus on is whether Cramblit's conduct was associated with an act or transaction of a broker or sales person as defined in R.C. 473501(A) or (C). Upon review of the evidence, we find Cramblit was not acting for another in this underlying real estate transaction. The agreement entered into between Cramblit and appellee was a "Partnership Agreement". Cramblit did not need a real estate license to enter into the partnership agreement. Cramblit was not representing appellee, as a real estate agent in a purchase agreement. Instead, Cramblit and appellee were co-investors. There is no evidence that Cramblit was acting in a representative capacity on behalf of appellee. A review of the trial court's judgment entry reveals the trial court found that because the partnership agreement required a deduction of a specified amount for Cramblit negotiating the purchase of the property this brought the transaction within the ambit of R.C. 4735.01(A) and/or (C). Although Cramblit negotiated the sale of the property, and was to receive a fee for this, he did so on his own behalf, with a co-investor. This Court reached a similar decision in the case of Jenkinsv. Ritenour (1989), 64 Ohio App.3d 525. Our focus, in Jenkins, was on the words "for another" as used in the definition of broker under R.C. 4735.01. Under Jenkins, we stated that in order to engage in the type of conduct comprehended in R.C. 4735.01, the licensee must act "for another" in a real estate transaction. As in Jenkins, we conclude Cramblit was not acting "for another" and therefore, appellee is not entitled to recover from the real estate recovery fund. Appellant's first assignment of error is sustained. For the foregoing reasons, the judgment of the Court of Common Pleas, Fairfield County, Ohio, is reversed. Pursuant to App.R. 12(B), we hereby enter final judgment dismissing appellee's complaint. By: Wise, J., Gwin, P. J., and Hoffman, J., concur. For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Fairfield County, Ohio, is reversed. Pursuant to App.R. 12(B), we hereby enter final judgment dismissing appellee's complaint. 1 Fairfield County Court of Common Pleas Case No. 97 CV 268

2016-07-06 06:36:05.695379+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION Appellant, Shelley Davis, appeals from her conviction in the Montgomery County Common Pleas Court of Involuntary Manslaughter with a firearm specification. The appellant was engaged in a lesbian relationship with Deborah Jones who was separated from her husband, David Jones. In September of 1995, the appellant and Deborah Jones purchased a home together at 633 Ellsworth Avenue in Trotwood. While living there appellant received threats from David Jones on her voice mail and she began taking security measures including purchasing ammunition for and loading two guns Deborah Jones had in their house. Jones told the appellant that she intended to go back to her husband David and on February 7, 1996, Deborah and David Jones went to 633 Ellsworth to remove some clothing. While there the appellant arrived but went to another room and began playing with her tape recorder. Eventually the appellant and David Jones had words and while David Jones was out of the room briefly, appellant obtained the .380 pistol she had hidden in the room and held it behind her back. Appellant testified the victim stated "I should have fucked you up a long time ago" and then came toward her. Appellant shot Jones in his arm from a distance of about two feet. David ran through the house telling Deborah he had been shot. He got outside but died in the yard by the street. The bullet had apparently trailed into his chest from his arm. Appellant made no attempt to follow him and remained in the house talking to Deborah and then to her mother by telephone. Appellant was unaware of David Jones' condition after she shot him. Appellant stated that she shot Jones so that he would stay away from her. Appellant's first assignment of error is as follows: THE TRIAL COURT ERRED IN INSTRUCTING THE JURY IT COULD FIND HER GUILTY OF THE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER. Appellant argues that an instruction on the lesser included offense of involuntary manslaughter should not have been given in the instant case since the underlying felony she was alleged to have committed, felonious assault, required proof of an element not necessary for the greater charge of murder i.e. proof of the use of a deadly weapon. She also argues the trial court erred in giving the involuntary manslaughter instruction because the evidence presented at trial would not justify an instruction on involuntary manslaughter. This court will not consider the appellant's claim that felonious assault as defined in R.C. 2903.11(A)(2) can never be a lesser included offense of murder, as that argument was not advanced in the trial court by the appellant. See, State v.Williams (1977), 51 Ohio St.2d 112. Crim.R. 30 provides that on appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objections. A jury instruction must be given on a lesser included offense when sufficient evidence is presented which would allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser included offense. State v. Shane (1992),63 Ohio St.3d 630,633. The appellant argues that the evidence in this case clearly demonstrates that she purposely killed David Jones in self-defense and thus a jury could not reasonably conclude from the evidence that she committed the lesser included offense of involuntary manslaughter. We disagree. Shelley Davis testified in the trial and never stated that it was her intention or purpose to kill David Jones. She testified at pages 1509-1512 of the record.: A. He was still pacing back and forth on the foyer and, you know, still complaining, and he stopped. He said, I should have fucked you up a long time ago, and while he was talking to me, he was pulling on his gloves the whole time before he left the room. I should have fucked you up a long time ago, and he started coming towards me. He got about two feet from me, and I reached behind me and I fired. Q. With your right hand? A. With my right hand. Q. And after you fired, first of all, do you know whether the bullet struck him? A. It hit him in his arm. Q. Did you see him react to that? A. He ran. Q. Where did he go? A. He ran into the family room. Q. And to what area of the family room if you know? A. Next to the coffee table. Q. And how do you know that? A. Because I stood up after he ran. I stood up and I looked through, there's a mirror or mirrored closet. I looked through the mirrored closet. I could see him standing in the middle of the room holding his arm. Q. Where was Debbie? A. She was in the bedroom. Q. She was not in the family room? A. No, she wasn't. Q. There is no doubt in your mind? A. There is no doubt in my mind. Q. You saw him through the reflection of the mirror, and what did you do next? A. He said, oh, Debbie, she shot me, and he tried to get the patio door open, but he didn't get it open, and he turned around and ran back towards me. When he started coming back towards me, I was right here. The mirror was right there and family room was right there. I moved back and sat back down next to the gun, which was till on the ottoman, and he looked at me the whole time he was on his way out of the door, and he walked, ran back past out of the house. He never said anything else. Q. He went out the front door? A. Out the front door. Q. Was the gun still positioned on the ottoman next to you when he came back through and saw he was coming toward the front door area? A. Yes. Q. Do you know whether the weapon still had more bullets in it? A. Yes. Q. And do you know how many bullets were left in the gun? A. Three. Q. Did you know that when you fired the first shot? A. I knew, yes. Q. How many did you think were there in total? A. Four, because there had been five in the gun. Q. And did you make any effort to fire the weapon at him again as he came back past you holding his arm? A. No. Q. Did you say anything to him? A. No. Q. Did he see anything to you? A. No. The jury could have reasonably inferred from the evidence that the defendant did not have a purpose to kill David Jones from the evidence that the victim was shot in the arm and only one shot was fired by the defendant although she knew three more bullets were in the gun she wielded. Also Detective Culbertson testified that the defendant told him she fired the gun "to get him away from her." (Tr. 829). The jury could have fairly found from the evidence that the defendant knowingly caused physical harm to David Jones by use of a deadly weapon. The appellant's first assignment of error is overruled. In her second assignment of error, appellant argues that the trial court erred in denying her motion for a new trial and post-verdict Crim.R. 29 motion because the court's instruction on involuntary manslaughter was erroneous. For the same reasons, as stated in our resolution of the first assignment of error, this assignment is overruled. Judgment of the trial court is Affirmed. GRADY, P.J., and YOUNG, J., concur. Copies mailed to: George A. Katchmer Arvin S. Miller Hon. Patrick Foley

2022-07-29 03:08:02.625319+00

PER CURIAM. Appeal dismissed.

2016-07-06 06:36:04.646923+00

Brogan

On June 5, 1984, plaintiff-appellant Michael L. Bales filed a complaint for divorce from his wife, Sandra McVeigh, alleging gross neglect of duty and extreme cruelty. McVeigh answered and counterclaimed for divorce on June 21, 1984 claiming in part that appellant had been guilty of homosexuality. Upon motion of appellant, the allegation concerning the claimed homosexuality was subsequently stricken from the counterclaim. A hearing was held on August 6, 1984 before Judge Lorig. The court rendered a final judgment and decree of divorce on September 17, 1984, finding both parties guilty of gross neglect of duty and extreme cruelty. On June 24, 1985, appellant filed a complaint individually and as father and next friend of his two children, in the Court of Common Pleas of Clark County. Appellant named Sandra McVeigh and Bertram Hack, McVeigh's counsel *Page 112 in the previous divorce proceedings, as defendants. Appellant alleged defamation and the intentional infliction of emotional distress. He claimed that McVeigh and Hack included homosexuality as a ground in the counterclaim for divorce for the sole purpose of damaging appellant. Appellant also stated that as a result of the publication of the grounds for divorce in a local newspaper, he and his children had suffered severe emotional distress. On July 29, 1985, defendants filed a motion to dismiss maintaining the complaint failed to state a claim upon which relief could be granted. Defendants argued that because the allegation of homosexuality was in a pleading and was both relevant and material to the divorce action, the statement was absolutely privileged. On October 2, 1985, the court found defendants' motion well-taken, but dismissed only Bertram Hack. The court converted the motion to dismiss with regard to McVeigh into a motion for summary judgment and scheduled a hearing for December 17, 1985. On December 20, 1985, the court rendered a decision and judgment entry finding the insertion of the homosexuality allegation in the counterclaim for divorce was not actionable. Appellants filed timely notices of appeal from the judgment entered in favor of Hack and McVeigh. Appellants assert one assignment of error: "The court erred in dismissing appellants' complaint on the grounds that it failed to state a claim upon which relief could be granted." Appellants concede that generally no action will lie for defamatory statements made by a party in a pleading. However, they argue the principle is inapplicable in the present action because the issue before the court was not the immunity of the pleadings as published in the court records, but rather the pleadings as they appeared in the local paper. Essentially, appellants argue the initial immunity was somehow abrogated by subsequent publication in the newspaper. The leading case concerning the actionability of defamatory statements in pleadings is Erie County Farmers Ins. Co. v.Crecelius (1930), 122 Ohio St. 210, 171 N.E. 97. In Erie County the Supreme Court stated: "No action will lie for any defamatory statement made by a party to a court proceeding, in a pleading filed in such proceeding, where the defamatory statement is material and relevant to the issue." Id. at syllabus. The court explained the policy behind the rule: "* * * [T]he rule found its origin in the feeling that great mischief would result if witnesses in courts of justice were not at liberty to speak freely, and if they could not feel an assurance that they would not be subject to suits for slander and libel as a result of testimony freely given. It is of course equally necessary that attorneys should be fully protected in counseling testimony, pleadings, and other proceedings in the usual and regular course of the trial of litigated cases, and for the same reasons that other court officials, including the judge who hears and decides causes, may be unfettered in the discharge of official duties, and may not be deterred from a fearless performance of official duties by a fear of actions for defamation. The rule is grounded upon public policy, and it is of course recognized that as an incidental result it may in some instances afford immunity to the evil disposed and the malignant slanderer. * * * A contrary rule would manifestly result in a multitude of slander and libel suits, which would not only bring the administration of justice into disrepute, but would, in many instances, deter an honest suitor from pursuing his legal remedy in a court of justice." Id. at *Page 113 214-215, 171 N.E. at 98. See, also, Battig v. Forshey (1982),7 Ohio App.3d 72, 7 OBR 85, 454 N.E.2d 168. In Bigelow v. Brumley (1941), 138 Ohio St. 574, 586-588, 21 O.O. 471, 477-478, 37 N.E.2d 584, 591-592, the Supreme Court refined and slightly modified the test set forth in Erie County by stating that questions concerning the applicability of absolute privilege depend on whether the alleged defamatory statement has reference and relation to the subject matter of the action in which it is found. The Bigelow court noted that the great majority of jurisdictions rejected a "relevance" standard because it gave the mistaken impression that the absolute privilege in court proceedings extended only to matters which were "legally" relevant. Id. at 586, 21 O.O. at 477,37 N.E.2d at 591. The most recent Supreme Court pronouncement concerning the absolute privilege in judicial proceedings is set forth inSurace v. Wuliger (1986), 25 Ohio St.3d 229, 25 OBR 288,495 N.E.2d 939. After reviewing the policy underlying and the precedent supporting the doctrine of absolute privilege, the court stated: "* * * While we find Erie County and Bigelow to be relatively correct enunciations of the proper standard to be applied in causes asserting absolute privilege in a judicial proceeding, we believe that the majority rule articulates a more workable standard for deciding when the doctrine of absolute privilege should apply, while recognizing the public policy considerations referred to in Erie County, supra, at 214-215. [Footnote omitted.] "Thus, we hold that as a matter of public policy, under the doctrine of absolute privilege in a judicial proceeding, a claim alleging that a defamatory statement was made in a written pleading does not state a cause of action where the allegedly defamatory statement bears some reasonable relation to the judicial proceeding in which it appears." Id. at 233, 25 OBR at 291-292, 495 N.E.2d at 942-943. Appellants contend that the subsequent removal of the homosexuality claim from the pleadings demonstrates the issue was neither material nor relevant to the divorce action. We disagree. The later action of the court in striking the allegation is irrelevant as our inquiry is directed to whether the communication, as initially contained in the pleading, bore some reasonable relationship to the divorce proceeding. Although homosexuality is not specifically enumerated as one of the grounds for divorce in R.C. 3105.01, homosexuality may constitute extreme cruelty or adultery to the other spouse, thereby furnishing grounds for divorce. See In re Anonymous (C.P. 1895), 2 Ohio N.P. 342, 3 Ohio Dec. 450; 47 Ohio Jurisprudence 3d (1983) 502, Family Law, Section 944. See, generally, Annotation (1961), 78 A.L.R. 2d 807. Accordingly, regardless of whether the allegation of appellant's homosexuality was true, we find that such allegation did bear a reasonable relationship to the divorce action. Surace, supra. Appellants claim further that even if the allegation in the pleading was privileged, the subsequent publication of the defamatory statement in the Springfield News and Sun extinguished the initial cloak of immunity. We find this argument meritless. Once it is determined that the pleading in issue meets the standard of bearing some reasonable relationship to the action, the grant of absolute privilege attaches. Subsequent republication of matters within those privileged pleadings in no way abrogates the grant of absolute immunity. Moreover, the pleading, once filed in the action, becomes a matter of public record, subject to possible republication in the newspaper. See R.C. 149.43 and *Page 114 2303.09. If the newspaper inaccurately reported the information, appellants could pursue an action against the newspaper for the malicious publication of the article. See R.C. 2317.05. Parenthetically we note that appellants have asserted an additional theory of liability premised on Civ. R. 11. Notwithstanding that the argument was not presented to the court below, a violation of Civ. R. 11 would possibly subject the attorney to disciplinary action, but would not bestow upon the wounded party a civil action for damages. See Staff Note to Civ. R. 11; Border City Savings Loan Assn. v. Moan (1984), 15 Ohio St.3d 65,67, 15 OBR 159, 161, 472 N.E.2d 350, 352, at fn. 1. The trial court did not err in dismissing appellee Hack from the action as appellants were not entitled to relief under any set of facts which could be proven to support the allegations. Civ. R. 12(B)(6). Likewise, the court appropriately granted summary judgment for appellee McVeigh finding she was entitled to judgment as a matter of law. Civ. R. 56(C). Appellants' assignment of error is overruled, and the judgment of the trial court is affirmed. Judgment affirmed. KERNS and WILSON, JJ., concur.

2016-07-06 06:36:04.734865+00

Per Curiam

1 Although the defendant's last name appears as "Gonzales" in the indictment and in a majority of the other papers filed in this case, appellate counsel has informed us that the correct spelling is "Gonzalez." *Page 854 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 855 DECISION Raising nine assignments of error, defendant-appellant Alexander Gonzalez appeals from his conviction of two counts of possession of cocaine in violation of R.C. 2925.11(A). Because we conclude that his first assignment is well taken, we reverse. FACTS AND PROCEEDINGS On November 23, 1998, agents from the Cincinnati Regional Narcotics Unit ("RENU") initiated surveillance of the Ramada Inn located on Reading Road after they received a tip from a reliable, confidential informant that a stolen Acura was located in the parking lot of the hotel. The informant had further advised that Gonzalez and co-defendant Thurmond Green were involved in drug trafficking and might have some connection to the stolen vehicle. Upon arriving at the hotel at approximately 10:30 a.m., RENU agents located the Acura and confirmed that it was, in fact, stolen. The agents also learned that Gonzalez and Green had hotel rooms registered in their names, that Gonzalez was a resident of New York, and that a Mazda 929 registered in his name and bearing New York license plates was parked in a remote area of the hotel's parking lot. *Page 856 At approximately 12:20 p.m., agents observed Gonzalez leaving his hotel room and getting into a sports utility vehicle driven by Mass. Samake. A group of agents followed Gonzalez and Samake, while other agents maintained surveillance at the hotel. The officers following Gonzalez and Samake observed them drive to Anthony Rodrigez's East Liberty Street apartment. Gonzalez and Samake both went into the apartment. When Samake left shortly thereafter, he was followed by several agents, who observed him drive to a car wash. Samake remained at the car wash for some time. At approximately 2:30 p.m., he left and drove to his mother's house. Shortly after Samake arrived at his mother's house, agents observed an individual arrive at the home and meet briefly with him. At approximately the same time, agents maintaining surveillance at the Ramada Inn observed Green leave his room and get in the Acura. They immediately arrested him for possession of the stolen vehicle. Although their search of the car yielded no drugs, their interview with him furthered their suspicions that both Gonzalez and Samake were involved in drug trafficking. Shortly after 3:00 p.m., agents observed Samake leaving his mother's house. They stopped him and searched his vehicle, finding $5,000 in U.S. currency. In response to questioning by police, Samake admitted that Gonzalez was involved in drug trafficking. He claimed that Gonzalez would transport cocaine from New York to Cincinnati in a hidden compartment under his car. According to Samake, Gonzalez unloaded the drugs in a rented garage on Colerain Avenue. Although Samake denied that he too was a "drug dealer," he admitted that he had provided Gonzalez with the names of individuals who were interested in purchasing cocaine and that he had delivered cocaine for Gonzalez on several occasions. With regard to the events of that day, Samake told agents that when he picked up Gonzalez at the Ramada Inn, Gonzalez had been carrying a black and yellow Nike bag underneath his coat and had stated that he had two or three kilos of cocaine with him. Samake also said that when he was inside Rodrigez's apartment, he had seen Gonzalez weighing powder and crack cocaine. Additionally, he told agents that Gonzalez had called him on his cell phone while he was at the car wash and had inquired about where he was. According to Samake, after he informed Gonzalez that he was on his way to his mother's house, Gonzalez told him to expect "someone" to deliver "something" to him there. Samake explained that, after he arrived at his mother's, an individual known to him as "C" or "Curt" dropped off a bag containing crack cocaine. Samake told agents that Curt was returning cocaine that he had previously delivered to him for Gonzalez, because it was of poor quality. According to Samake, he then hid the cocaine in his mother's house until he could give it back to Gonzalez. Samake gave agents permission to search his mother's house and told them where they could find the *Page 857 cocaine. Following his directions, agents located seventeen ounces of crack cocaine. Utilizing a canine unit, agents at the Ramada Inn examined the exterior of Gonzalez's Mazda. The dog "honed in on" the left rear quarter panel of the car, indicating that it had scented narcotics in that area. After towing the car to a police station, agents found a hidden compartment on the underside of the vehicle. At approximately 5:00 p.m., Gonzalez left Rodrigez's East Liberty Street apartment on foot, carrying a black and yellow Nike bag. Officers stopped him and searched the bag, finding keys to the Mazda as well as to the Colerain Avenue garage identified by Samake. Shortly thereafter, agents observed Rodrigez and his girlfriend leaving the apartment on East Liberty Street. Agents stopped their vehicle and took them to the station for questioning. Rodrigez consented to have his apartment searched, but no drugs were found. After continued questioning by police, however, Rodrigez agreed to make a recorded statement. In his statement, Rodrigez acknowledged that Gonzalez had brought cocaine with him into the apartment. According to Rodrigez, Gonzalez had not wanted to take the cocaine with him when he left the apartment and had requested that Rodrigez keep it for him. Rather than keeping the cocaine in his apartment, Rodrigez explained, he had moved it to a closet located in a hallway on the second floor of the building. Based on these revelations, agents recovered approximately 1400 grams of powder cocaine and 164 grams of crack cocaine, as well as two digital scales. Gonzalez, Samake, and Green were charged jointly in one indictment. Rodrigez was not charged. The three counts against Gonzalez were for possession of cocaine. Each of the counts carried a specification alleging that Gonzalez was a major drug offender. Samake was charged with one count of possession of cocaine; this charge also carried a specification alleging that Samake was a major drug offender. Green was charged with receiving stolen property. At Gonzalez's jury trial, Samake testified as a witness for the state. In addition to providing testimony regarding Gonzalez's activities, Samake positively identified the cocaine recovered from the closet in Rodrigez's apartment building as the same cocaine that he had seen Gonzalez weighing. Samake also identified one of the scales recovered from the closet as the one that Gonzalez had used to weigh the cocaine. Rodrigez was also called as a witness by the state, but invoked his Fifth Amendment privilege against self-incrimination and refused to testify. As a result, he was deemed unavailable, and the state was permitted to introduce the recorded statement that he had given to police. Additionally, Officer Gramke, *Page 858 who had taken the recorded statement, was permitted to testify about what Rodrigez had said during the interview. At the conclusion of the trial, the jury returned guilty verdicts on the two counts of the indictment and the accompanying specifications that related to the cocaine found at Rodrigez's apartment building on East Liberty Street. With respect to the count of the indictment involving the cocaine found at Samake's mother's house and its accompanying specification, the jury returned a verdict of not guilty. The trial court subsequently imposed maximum consecutive sentences for the offenses. This appeal followed. ASSIGNMENTS In his first assignment of error, Gonzalez asserts that his Sixth Amendment right to confront and cross-examine witnesses against him was violated by the trial court's admission of hearsay evidence, specifically Rodrigez's recorded statement and Gramke's testimony regarding the statement. The evidence was admitted after the trial court had found that Rodrigez was unavailable within the meaning of Evid.R. 804(A) and that his statement constituted one against penal interest under Evid.R. 804(B)(3). Even if Rodrigez's statement fit within the Evid.R. 804(B)(3) exception to the hearsay rule, its admission may still have resulted in a violation of Gonzalez's Sixth Amendment right to confront the witnesses against him. The test to determine whether admission of an out-of-court statement violates a defendant's right to confront witnesses is whether the statement is "so trustworthy that adversarial testing can be expected to add little [to the statement's] reliability."2 Hearsay statements are deemed sufficiently reliable to allow their admission without the benefit of cross-examination, when they (1) fall within a firmly rooted hearsay exception or (2) contain adequate indicia of reliability.3 Accordingly, to be admissible, Rodrigez's statement had to meet one of the two criteria. At the time Gonzalez was tried, State v. Gilliam4 was the law in Ohio. Under Gilliam, a "statement against interest" under Evid.R. 804(B)(3) was considered a "firmly rooted hearsay exception". Accordingly, a statement against interest made by an unavailable accomplice could be admitted pursuant Evid.R. 804(B)(3) without violating a defendant's confrontation rights. *Page 859 Here, the trial court relied on Gilliam in admitting Rodrigez's statement. But, in the time between Gonzalez's trial and this appeal, Gilliam was overruled. Pursuant to Lilly v.Virginia5 and State v. Madrigal,6 where, as here, an accomplice's statement against interest also inculpates the accused by shifting or spreading blame to him, it is not within a firmly rooted hearsay exception. Moreover, such a statement is deemed presumptively unreliable. This presumption can be overcome only where the statement is shown to possess indicia of reliability by virtue of its "inherent trustworthiness."7 Pursuant to Griffith v. Kentucky,8 wherein the United States Supreme Court held that a new rule for the conduct of a criminal prosecution is to be applied retroactively in all cases pending on direct review or not yet final, we apply the rule of law pronounced in Lilly and Madrigal to the instant case. Accordingly, unless it can be said that Rodrigez's statement was "inherently trustworthy," we must hold that its admission was error. In making this determination, we note that a plurality of the United States Supreme Court in Lilly cautioned that "[i]t is highly unlikely that the presumptive unreliability that attaches to accomplice's confessions that shift or spread blame can be effectively rebutted when the statements are given under conditions that implicate the core concerns of the old ex parte affidavit practice — that is, when the government is involved in the statements' production, and when the statements describe past events and have not been subjected to adversarial testing."9 Here, the state offers no argument that Rodrigez's statement was inherently reliable, but, instead, contends that facts known to the police at the time of the statement's making, which tended to corroborate the statement, served to demonstrate the statement's reliability. But, as the state acknowledges, the presence of corroborating evidence is irrelevant to a determination of reliability under Lilly and Madrigal. We, therefore, reject this argument.10 In our view, Rodrigez's statement and the circumstances surrounding it did nothing to rebut the presumption of unreliability that attached to the statement. *Page 860 The statement, which shifted blame to Gonzalez, was made in response to police interrogation and was never subjected to adversarial testing. Moreover, Gramke testified that he "caught [Rodrigez] in a few lies" during the interrogation. Accordingly, we conclude that the statement lacked adequate indicia of reliability and that its admission into evidence resulted in a violation of Gonzalez's confrontation rights. But, in order to determine whether the trial court's error in admitting this evidence requires reversal of Gonzalez's convictions, we must also decide whether the error resulted in prejudice or whether it was harmless. Apart from Rodrigez's statement and Gramke's testimony regarding it, the only evidence linking Gonzalez to the cocaine found at the building on East Liberty Street was Samake's testimony. The majority of this testimony, however, related to Gonzalez's alleged involvement with the drugs recovered from Samake's mother's house, which was apparently insufficient to convince the jury that Gonzalez was guilty of that charge. From this, it is reasonable to infer that the jury questioned Samake's credibility. It would stand to reason, then, that, although Samake's testimony may have been legally sufficient to demonstrate that Gonzalez constructively possessed the cocaine found on East Liberty Street, the jury may still have been reluctant to rely solely upon this testimony in finding Gonzalez guilty in connection with that cocaine. And even if the jury did find Samake's testimony regarding the East Liberty Street cocaine to be credible, the limited nature of the testimony left several things open to question. Most notably, the testimony failed to demonstrate how the cocaine arrived in the closet of Rodrigez's apartment building. By clarifying this point, Rodrigez's statement linked Gonzalez to the cocaine in a definite and persuasive fashion. What is more, Rodrigez's statement had the additional effect of bolstering and corroborating Samake's testimony regarding Gonzalez's possession of the cocaine. Under these circumstances, the statement was not merely cumulative of Samake's testimony. Moreover, the jury may have placed special emphasis on Rodrigez's statement, given that the statement was, in effect, presented on two occasions: once when the recording of the statement was played and a second time when Gramke testified about Rodrigez's interview. In light of the facts that Rodrigez's statement contained information that was particularly significant to the charges of which Gonzalez was found guilty and that was not otherwise before the jury, and that greater emphasis was placed on this evidence than upon the remaining evidence in support of the charges, we cannot say beyond a reasonable doubt that the jury would have found Gonzalez guilty of the charges had the statement not been admitted into evidence. Accordingly, we conclude that the admission of the statement was not harmless. The first assignment of error is well taken. *Page 861 Given our disposition of Gonzalez's first assignment, the remaining assignments of error, with the exception of the sixth assignment which challenges the sufficiency of the evidence, have been rendered moot. Therefore, we address only the sixth assignment. In the sixth assignment of error, Gonzalez asserts that the trial court erred in denying his Crim.R. 29(A) motion for acquittal. We disagree. Based on the evidence presented at trial, specifically Samake's testimony that he saw Gonzalez weighing cocaine later found at East Liberty Street, the jury could have found beyond a reasonable doubt that Gonzalez had constructively possessed the cocaine.11 Accordingly, we reject the sixth assignment of error. The judgment of the court of common pleas is hereby reversed, and this cause is remanded for further proceedings in accordance with law. Doan, P.J., Gorman and Sundermann, JJ. 2 White v. Illinois (1992), 502 U.S. 346, 357, 112 S.Ct. 736,743, quoted in State v. Madrigal (2000), 87 Ohio St.3d 378, 385,721 N.E.2d 52, 61. 3 Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S.Ct. 2531,2539. 4 (1994), 70 Ohio St.3d 17, 635 N.E.2d 1242. 5 (1999), 527 U.S. 116, 119 S.Ct. 1887. 6 (2000), 87 Ohio St.3d 378, 721 N.E.2d 52; see, also, Statev. Strong (Feb. 18, 2000), Hamilton App. No. C-971036, unreported. 7 Lilly, 527 U.S. at 137-138, 119 S.Ct. at 1900-1901. 8 (1987), 479 U.S. 314, 107 S.Ct. 708. 9 Lilly, 527 U.S. at 137, 119 S.Ct. at 1900. 10 Lilly, 527 U.S. at 137-138, 119 S.Ct. at 1900-1901;Madrigal, 87 Ohio St.3d at 387, 721 N.E.2d at 62-63. 11 State v. Bridgeman (1978), 55 Ohio St.2d 261,381 N.E.2d 184, syllabus; State v. Brown (Sept. 25, 1996), Hamilton App. No. C-950300, unreported.

2016-07-06 06:36:04.773572+00

Montgomery

The will of Sarah McKelvey, deceased, was admitted to probate on April 19, 1949. In that will she designated Delmar Alderman as executor. The then probate judge of Holmes county, deciding that Alderman had not qualified as required by statute, on August 9, 1949, appointed the appellant, Clarence McKelvey, administrator with the will annexed. He was the only son and heir at law of the testatrix. Thereafter, on November 23, 1949, in pursuance of the decision of this court rendered in case number 262, McKelvey was removed as such administrator and Alderman was appointed executor. In the meantime, on September 24, 1949, McKelvey had instituted this suit to contest the will of his mother. He made parties defendant the legatees and devisees, and himself as administrator with the will annexed. In spite of his removal as such administrator, no further action was taken until May 10, 1951, when McKelvey filed a motion for an order substituting Alderman as executor in place of himself as administrator with the will annexed. Thereafter a motion was filed to dismiss the action for reasons upon which we will comment hereinafter. The trial court overruled the *Page 565 motion of McKelvey and sustained the motion to dismiss the action. From these two orders this appeal was perfected to this court. Various questions were raised, and naturally do arise, in the consideration of these problems. We will endeavor to discuss them in their natural order. Was the appointment of McKelvey as administrator with the will annexed void ab initio, as claimed by the appellees, for his failure to comply with a provision of Section 10509-4, General Code, which requires that before an appointment, the applicant must file a "statement of any indebtedness the deceased has [had] against such person making said application"? We discussed this proposition in our opinion in case number 262. We think the appointment was voidable, but not void. If he had proceeded without objection to administer the estate, it could hardly be claimed that everything which was done in such administration was invalid. McKelvey was subject to removal, and he was removed. This removal left the situation as though he had not been appointed. Was McKelvey precluded from suing himself as administrator, or rather naming himself as such administrator, as one of the defendants? Again, we do not think so. He was serving, as stated, under a voidable appointment. Again, let it be stated that if the action proceeded without objection, the result of the litigation would not be in vain. And again, let it be stated that the remedy would be his removal. Such removal would have been proper because, as stated long ago, one cannot faithfully serve two masters. One acting in a fiduciary capacity must be faithful to his trust above all other things, and must not be in a position antagonistic to his trust. But that does not go to the proposition that he could not appear in two capacities. As this writer *Page 566 stated in the case of Hayes v. Peak (unreported), to which we will refer hereinafter, "the fact remains that one appearing in a representative capacity is a different person from that same individual appearing on his own behalf." And Judge Sherick in the case of Meyers, Exrx., v. Hogue,45 Ohio App. 330, 187 N.E. 127, in the third paragraph of the syllabus, and in his opinion as it appears on page 335, stated the proposition in substantially the same language. The same proposition may be inferred from the sixth paragraph of the syllabus in the recent case of Peters v. Moore, 154 Ohio St. 177, 93 N.E.2d 683. Is there unity of interest between the executor and the heirs at law, who unquestionably were properly served and are in this case? We say unhesitatingly that there is no such unity. The writer of this opinion has had occasion throughout the years to discuss this proposition presented in various ways. For many years the law governing this situation had been fixed by the decision in the case of Bradford v. Andrews,20 Ohio St. 208, 5 Am. Rep., 645. Many years thereafter the Supreme Court decided the case of McCord v. McCord, 104 Ohio St. 274,135 N.E. 548, and differentiated, without expressly overruling, the case of Bradford v. Andrews, supra, the Legislature having acted in the meantime so as to make the changed ruling necessary. Relying upon the decision in McCord v. McCord, supra, this court, speaking through the writer of this opinion, decided at least three cases and discussed at some length the basis for the differentiation between the Andrews and the McCord cases, and the statutes governing the situations involved. First there was the case of Sands v. Citizens National Bank, an unreported case from Tuscarawas county. Then came *Page 567 the case of Hayes v. Peak, supra, from Franklin county, also unreported. Then came the case of Draher v. Walters, from Stark county, also unreported. However, the judgment in the case of Draher v. Walters, upon error being prosecuted to the Supreme Court, was reversed in130 Ohio St. 92, 196 N.E. 884, by a four to three decision. That decision seemed to throw out of the window, as it were, all that had been decided by the Supreme Court and by this court theretofore. However, in the recent case of Peters v. Moore, supra, the holding in Draher v. Walters, supra, was overruled so far as it affects our situation, and the case of McCord v. McCord, supra, was approved and followed. In other words, the law in Ohio is now, in this respect, what it was understood to be following the decision in the McCord case, and prior to the decision in theDraher case. As to the unity of interest, it might be claimed that there is such unity as between the administrator with the will annexed and the executor, even though it would not exist between the executor and the heirs. However, in making this claim of such unity, the appellant is confronted with the plain provisions of the statutes governing such matters. Section 11410, General Code, is in this language: "An order to revive an action against the successor (other than the executor or administrator) of a defendant shall not be made without the consent of such successor, unless made within one year from the time it first could have been made." Certainly, Alderman as executor is to be classed as the successor of McKelvey as administrator. The order of revivor sought was not made within one year from the time it could have been made. Alderman is not consenting to the revivor. He of course is not the *Page 568 executor or administrator of Clarence McKelvey, or of any named defendant, and so is not affected by the amendment to the statute. Section 12080, General Code, reads: "All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to the action." Section 12087, General Code, limits the bringing of the action to contest a will to six months after it is probated. An action is begun as against a party only from the time of the service of summons upon him, or someone united in interest with him. Until service was had upon him, the executor, Alderman, was not a party to the action. We refer again to the recent case of Peters v. Moore, supra, and specifically to the third and fourth paragraphs of the syllabus, which are: "3. Under the provisions of Section 12080, General Code, all the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator,must be made parties to an action to contest a will. "4. Under those provisions it is mandatory and jurisdictional that the executor be made a party to such action." In other words, a compliance with those sections of the Code is mandatory and necessary to confer jurisdiction upon any court. Finally, the appellant contends that, even if he be wrong in his other contentions, Alderman, nevertheless, has entered his appearance generally, both as to his person and as to the merits of the cause, and the court was thereby given jurisdiction to proceed. In passing, the peculiar character of the motion which was sustained is to be noted. It is in this language: *Page 569 "Now comes Macin E. Estill, attorney for D. P. Alderman, executor of the estate of Sarah McKelvey, deceased, and defendants Robert Hoxworth, et al. and moves the court to dismiss the above recited action on the ground that the court lacks jurisdiction of the cause in as much as the executor of the estate of Sarah McKelvey, deceased, i. e. D. P. Alderman, was not made a party thereto as required by G. C. Section 12080 and that he was not joined in the action or served within the statutory period of six months within which a will contest may be instituted as required by G. C. 11230 G. C. 12087. Further, that the order of appointment of Clarence McKelvey as administrator w. w. a. of the estate of Sarah McKelvey, deceased, was reversed, vacated, revoked and set aside by the Court of Appeals being case No. 262, Court of Appeals, Holmes county, Ohio, and D. P. Alderman's application for letters testamentary and bond ordered accepted and his appointment order. "/s/ Macin E. Estill "Attorney for D. P. Alderman, executor, et al." Inquiry might be propounded as to whether this was an attempted entry of appearance by Alderman through his counsel. On its face it would be the entry of appearance by counsel only. And the language of the motion is such that it might be debatable whether it did more than question the jurisdiction over the person, and whether it went so far as to question the jurisdiction over the cause of action. Of course, if it were the former, there was no general appearance or waiver. But, even though this motion should be treated as the action of Alderman, executor, and even though it went further than an objection to the jurisdiction over his person, the situation still will not avail the appellant. *Page 570 The parties, of course, cannot confer jurisdiction of the subject matter upon a court when no such jurisdiction exists. That, as we have heretofore stated in the course of this opinion, is the situation here. They cannot confer jurisdiction by agreement, certainly not by mere waiver. The rule as stated in 3 American Jurisprudence, 802, Section 32, is as follows: "It is a well-settled rule that jurisdiction of a court over the subject matter cannot be conferred by the consent or agreement of the parties, nor can the want of such jurisdiction be waived. Hence, it necessarily follows that a general appearance by a defendant does not itself confer on the court jurisdiction of the subject matter." And, in the case of Campbell v. Johnson, 83 Ohio App. 225,79 N.E.2d 147, it appears in the course of the opinion that the trial court had sustained a demurrer "for the reason that the administrator de bonis non entered his appearance after the expiration of the time prescribed by the statute of limitations." That judgment was affirmed by the Court of Appeals, and this particular proposition, although not discussed, seems obviously to have been taken for granted as to its correctness and to have been approved. The judgment in the instant case is affirmed. Judgment affirmed. McCLINTOCK, P. J., and PUTNAM, J., concur.

2016-07-06 06:36:05.647298+00

Mahoney

Plaintiff, Earl B. Petty, appeals from the trial court's order granting a directed verdict in favor of defendants and dismissing the remaining cross claim and third party complaint for mootness. Plaintiff alleges, in his amended complaint, that in 1972 defendant Berk's Akron Title Agency, Inc., drew a $26,173.35 check made payable to plaintiff and Earl B. Petty, Jr., the executor of his deceased spouse's estate. He further alleges that the check was paid by defendant First National Bank of Akron, over plaintiff's forged endorsement, and the proceeds were credited to Attorney Stephen E. Hughes' (third party defendant) personal account. Plaintiff maintains that he never received any of the proceeds of the check and requests a judgment against defendants for one-half the amount of the check. Thereafter, First National Bank filed a cross claim *Page 366 against Berk's Akron Title Agency and a third party complaint against Stephen E. Hughes, Earl B. Petty, Jr. (both individually and as executor of Mrs. Petty's estate) and Perry G. Dickinson, as stakeholder (trustee for Stephen Hughes). Pursuant to plaintiff's motion for severance of the third party actions, the trial court ordered that the jury first hear the issues contained in plaintiff's amended complaint, the answers of the original defendants and the cross claim. The remaining issues were to be heard after the determination of the original action if it became necessary. However, the trial court granted defendants' motion for a directed verdict following the close of plaintiff's case and the remaining issues became moot. Plaintiff appeals from the order granting the directed verdict. Plaintiff maintains that: "I. The court erred in directing a verdict in favor of the defendants, First National Bank of Akron and Berk's Akron Title Agency, Inc. "II. The court erred in not ordering a severance and separate trial of the third party complaint of defendant, First National Bank of Akron, as third party plaintiff, against Stephen E. Hughes, Earl B. Petty, Jr., Administrator, Earl B. Petty, Jr., individually, and Perry G. Dickinson, third party defendants." Assignment of error one is well taken. The record discloses that the trial court based its order on R. C. 1303.36, which provides in pertinent part: "(A) Unless specifically denied in the pleadings, each signature on an instrument is admitted. When the effectiveness of a signature is put in issue: "(1) the burden of establishing it is on the party claiming under the signature; but "(2) the signature is presumed to be genuine or authorized except where the action is to enforce the obligation of a purported signer who has died or become incompetent before proof is required. * * *" Defendants contend that since plaintiff was disputing the validity of the endorsement he had the burden of overcoming the presumption that the endorsement was genuine *Page 367 and authorized (actually plaintiff only had to prove lack of authority because Hughes admitted signing plaintiff's name). Plaintiff, who is 93 years old and partially blind, testified that he could not remember whether he gave Hughes the authority to endorse the check. Thus, defendants maintain that plaintiff failed to overcome the presumption. We hold that R. C. 1303.36 is not applicable to this situation. A review of the official comments to sub-section (1) of Sec. 3-307 of the Uniform Commercial Code (after which R. C.1303.36 is patterned) reveals that this section concerns defenses when the validity of a signature is at issue. The purpose of the section is to give the presumption of the validity of a signature to a party suing as holder to collect on a note or a draft. It cannot be used to unnecessarily burden a party who is bringing an action in conversion resulting from the payment of an instrument over a forged endorsement. All the parties concede that the plaintiff's signature was not genuine. The defendants assert that Hughes had authority to sign the plaintiff's name. The burden of proving agency is always upon he who asserts it. The second assignment of error is without merit. An order for severance and separate trial is within the discretion of the trial court in this instance. See Civ. R. 14 and Civ. R. 42(B). Plaintiff fails to demonstrate how the trial court abused its discretion when it ruled on the motion for severance and separate trials. In view of our determination in the first assignment of error, the judgment is reversed and this cause is remanded for a new trial. Judgment reversed and cause remanded. DOYLE and LOMBARDI, JJ., concur. DOYLE, J., retired, assigned to active duty under authority of Section 6(C), Article IV, Constitution, and LOMBARDI, J., of the Court of Common Pleas of Summit County, sitting by designation in the Ninth Appellate District. *Page 368

2016-07-06 06:36:05.770685+00

OPINION Defendant-appellant Springfield City School District Board of Education, (the Board of Education), appeals from a judgment of the Clark County Court of Common Pleas wherein the Court reversed a decision of the Clark County Board of Revision that had upheld the county auditor's determination regarding the valuation of real property for tax purposes. The Board contends that standing to contest the auditor's valuation was not established either in the proceedings in the Board of Revision or in the proceedings in the common pleas court. Therefore, the Board of Education contends that the administrative appeal should have been dismissed. In the alternative, the Board of Education contends that the common pleas court erred in its valuation of the subject property and that this court should review the evidence and enter an appropriate value for the property. We conclude that the issue of standing, while properly raised, hinges upon factual determinations that were not addressed in the proceedings before the Board of Revision or the common pleas court. Therefore, we cannot say, based upon the record before us, that standing was lacking. Additionally, we cannot say that the trial court abused its discretion in regard to its determination of the value of the subject property. Accordingly, the judgment of the trial court is Affirmed. I Security Community Urban Redevelopment Corporation ("Urban Redevelopment") filed a complaint, pursuant to R.C. 5715.19 and 5715.13, with the Clark County Board of Revision ("BOR") on March 31, 1997. The complaint contested the county auditor's valuation of Urban Redevelopment's property located in Springfield. The auditor had assessed a value of $3,332,800 while Urban Redevelopment alleged a valuation of $1,300,000. The Board of Education filed a counter-complaint alleging that the auditor's valuation was correct. A hearing was held before the BOR in May, 1997. At the hearing, Urban Redevelopment presented an appraisal estimating the value of the property to be $1,450,000. The appraiser testified at the hearing. A decision was rendered by the BOR in June, 1997 wherein it affirmed the value as set by the county auditor. Urban Redevelopment thereafter filed an appeal with the Clark County Common Pleas Court pursuant to R.C. 5717.05. The trial court granted the parties the right to submit additional evidence regarding the value of the property. Both parties submitted appraisals. Thereafter, on June 29, 1998, plaintiff-appellee, Security National Bank Trust Co. ("Security National Bank") filed a motion to intervene and Urban Redevelopment filed a motion for substitution of parties. The motion was based upon the claim that on April 2, 1997, after the complaint was filed with the BOR, the subject property was transferred by Urban Redevelopment to Security National Bank.1 The Board of Education did not raise any objection, and the trial court permitted Security National Bank to intervene as the real party in interest. The parties submitted briefs to the trial court. The two appraisals submitted by Security National Bank set the value of the property at $1,450,000 and $1,277,000, while the appraisal submitted by the Board of Education established a value of $2,200,000. The trial court issued a decision in November, 1998 setting the value of the property at $1,600,000 as of the tax lien date of January 1, 1996. From this decision, the Board of Education appeals. II The First and Second Assignments of Error state as follows: URBAN REDEVELOPMENT CORP. LACKED STANDING TO INVOKE THE JURISDICTION OF THE CLARK COUNTY BOARD OF REVISION. URBAN REDEVELOPMENT CORP. LACKED STANDING AND WAS NOT A PROPER PARTY TO PERFECT AN APPEAL TO THE COMMON PLEAS COURT PURSUANT TO R.C. 5717.05. The Board of Education contends that Urban Redevelopment lacked standing to challenge the county auditor's assessment at either the BOR or the common pleas court level. The Board also claims that Security National Bank should not have been allowed to intervene, or be substituted as a party, at the common pleas court level. Therefore, the Board contends that the judgment of the trial court should be reversed and this cause should be remanded to the BOR with instructions to dismiss the complaint. We turn first to the issue of standing at the BOR level. "The two statutes of primary importance when considering the standing of a party to file a complaint for a decrease in valuation with a board of revision are R.C. 5715.19 and 5715.13."Soc. Nat'l Bank v. Wood Cty. Bd. of Revision (1998), 81 Ohio St.3d 401,402.2 R.C. 5715.19(A)(1) provides in pertinent part as follows: Any person owning taxable real property in the county or in a taxing district with territory in the county * * * may file such a complaint regarding any such determination affecting any real property in the county. The Board of Education concedes that Urban Redevelopment satisfied the standing requirement of R.C. 5715.19 because it owned the property at the time the complaint was filed. See Soc.Nat'l Bank, supra, at 403 (standing is restricted to persons owning taxable real property in the county). Therefore, the issue we are faced with is whether Urban Redevelopment satisfied the standing requirement of R.C. 5715.13, which provides: The county board of revision shall not decrease any valuation complained of unless the party affected thereby or his agent makes and files with the board a written application * * * The question then becomes whether Urban Redevelopment was an affected party or an agent of Security National Bank and whether it had standing. Security National Bank argues that the standing issue was waived by the failure to raise it at the BOR and the common pleas court, the first opportunities to challenge standing. The Board of Education argues that standing cannot be waived because it is jurisdictional. We agree with the Board of Education. The Ohio Supreme Court has stated that "* * * the issue of standing, inasmuch as it is jurisdictional in nature, may be raised at any time during the pendency of the proceedings." Buckeye Foods v.Cuyahoga Cty. Bd. of Revision (1997), 78 Ohio St.3d 459, 460, quoting New Boston Coke Corp. v. Tyler (1987), 32 Ohio St.3d 216,218. Therefore, we find that this matter is properly raised for the first time on appeal. However, we find this case distinguishable. In both BuckeyeFoods and New Boston Coke, the resolution of the issue of standing was readily apparent from the record. In other words, there was evidence in the record in both of those cases which clearly supported a finding that the parties lacked standing. In this case, we cannot make a determination regarding standing from the record before us. The issue of whether Urban Redevelopment was an agent of Security National Bank revolves upon factual issues that were not addressed either in the proceedings before the BOR or in the proceedings before the common pleas court. Therefore, while we cannot say that an agency existed, we also cannot rule it out. Likewise, we cannot determine whether Urban Redevelopment was an affected party. It is possible that it was responsible for paying the 1996 taxes which would, in our opinion, render it an affected party. Again, since this matter was not raised at the BOR, no facts were developed either to support or to undermine Urban Redevelopment's claim that it had the requisite standing. Regularity in the proceedings of a trial court must be presumed in the face of a silent record. To illustrate the absurdity of a contrary result, consider the following hypothetical. A sues B for breach of contract, goes to trial, proves his case, and recovers a judgment. When A tries to collect his judgment, B collaterally attacks it by pointing out that A failed to establish that he had standing to sue because he failed to prove that he had not assigned his claim to another. It would be absurd to hold that because A failed to prove, conclusively, that he had standing to sue, his judgment is void. Where standing is not challenged at the trial level, and the absence of standing is not established in the record, as it was inBuckeye Foods, supra, for example, standing may be presumed. We next turn to the issue of whether Urban Redevelopment had standing to appeal the decision of the BOR to the common pleas court. The statute which provides authority for such an appeal, R.C. 5717.05, requires that the party filing the appeal be the "person in whose name the property is listed or sought to be listed for taxation." The Board of Education contends that Urban Development was not listed as the party owning the property because it had transferred the property to Security National Bank. Again, this issue was not raised or preserved at the common pleas level. Therefore, no evidence was adduced to indicate whether Urban Redevelopment was in fact listed on the tax roll. See, Suburban Nursing and Mobile Homes, Inc. v. Rhodes (Aug. 1, 1997), Hamilton App. No. C-960949, unreported (frequently there is more than one party in whose name the property is listed for taxation). Thus, we cannot say that Urban Redevelopment lacked the requisite standing. Finally, we address the Board of Education's claim that Security National Bank should not have been permitted to intervene at the common pleas level. The Board of Education argues that the intervention did not occur until after the time for filing the notice of appeal had expired, and thus, the failure to join Security National Bank as a necessary party could not be corrected. In support, the Board of Education cites ReubenMcMillan Free Library Ass'n v. Mahoning Cty. Budget Commission (1963), 175 Ohio St. 191 for the proposition that where "* * * a statute provides that certain parties are necessary to an appeal, such parties must be joined before the time for filing the appeal has lapsed, otherwise such appeal must fail." In Reuben, the City of Youngstown filed an appeal contesting the findings of the Board of Tax Appeals in regard to the allocation of the county undivided classified property tax fund.Id., at 192. Numerous libraries and political subdivisions were included in the allocation and were thus affected by the decision of the Board of Tax Appeals. Id. However, the City failed to include many of the affected parties as appellees in the appeal.Id. Therefore, parties with a valid interest in the outcome of the appeal were not put on notice that the City was seeking a ruling that was possibly adverse to those parties. This action effectively prevented the parties from protecting their interests. The Supreme Court held that since strict compliance with respect to appeals provided for in R.C. Chapter 5717 is mandated, the failure to join necessary parties prior to the expiration of the time for the filing of an appeal is reason for the dismissal of the appeal. Id., at 194. We also note that this court has followed the holding inReuben in regard to the joinder of appellees as necessary parties. See, Huber Heights Circuit Courts v. Carne (June 29, 1994), Montgomery App. No. 14378, unreported, affirmed 74 Ohio St.3d 306. In Huber Heights, we found that pursuant to R.C.5717.05 appeals from the BOR to the common pleas court require that the county auditor and all parties to the proceedings before the BOR be made appellees, and notice of the appeal shall be served upon them by certified mail unless waived. We found that "[t]he right to a notice of appeal from a legal proceeding to which someone is a party is a fundamental due process right where it has been conferred by law, and it would be pure mischief in our judicial system to allow parties whose substantial interest[s] have been litigated to find out later that their issues have been appealed unbeknownst to them." Id. We find Reuben and Huber Heights distinguishable from the case before us. All adverse parties were included as appellees to the appeal. There is no allegation of, nor are we aware of, prejudice to the Board of Education by reason of the intervention. It is clear that the Board of Education was placed on notice that the valuation of the subject property was being appealed. Furthermore, the common pleas court, while not required to conduct a trial de novo from the decision of the BOR, may consider additional evidence. Black v. Bd. of Revision (1985), 16 Ohio St.3d 11. Therefore, had the Board of Education felt that it was necessary to submit additional evidence to protect its interests once Security National Bank was permitted to intervene, it could have done so. However, the Board of Education did not object to the intervention, and does not, on appeal, contend that the intervention affected its litigation of this matter. Finally, all parties with an interest in the appeal adverse to those of Urban Redevelopment and Security National Bank were on notice and were able to protect their interests. We find this case more closely aligned with the facts in NameBrand Furniture Warehouse, Inc. v. Cuyahoga Cty. Bd. of Revision (1987), 41 Ohio App.3d 47, wherein the court of appeals permitted a property subtenant to substitute the landowner as the appellant. In that case, the court stated that the subtenant could not have added an "essential adverse party" after its time for appeal had expired, but could amend its appeal to include non-adverse parties if they do not unfairly prejudice the appellee's interests. Id., at 49-50. The court found that an appeal will be found adequate if the notice sufficiently advises all adverse parties of the order being challenged. Id., at 49. The issue of whether Urban Redevelopment had standing to pursue this matter before the BOR and the common pleas court is not determinable from the record before us. Therefore, we will presume regularity in the proceedings, and find that it did not lack the requisite standing. We further find that the intervention of Security National Bank as a real party in interest was not prejudicial to the Board of Education. Accordingly, the First and Second Assignments of Error are overruled. III The Third Assignment of Error is as follows: THE TRIAL COURT COMMITTED ERROR IN ASSIGNING A VALUE OF $1,600,000 TO THE REAL PROPERTY. THE TRIAL COURT'S DECISION IS ARBITRARY AND IS NOT BASED UPON RELIABLE AND PROBATIVE EVIDENCE. The Board of Education contends that the trial court acted in an arbitrary and unreasonable manner by relying upon the appraisals submitted by Urban Redevelopment. In support, it contends that there were flaws with the appraisals. The Board of Education further argues that the trial court should have adopted the county auditor's valuation or that set forth in the appraisal submitted by the Board. "The common pleas court is not required to adopt the valuation of any witness, but is instead vested with wide discretion to determine the weight of the evidence and credibility of the witnesses." Murray Co. Marina, Inc. v Erie Cty. Bd. ofRevision (1997), 123 Ohio App.3d 166, 173, citing, StrongsvilleBd. of Edn. V. Cuyahoga Cty. Bd. of Revision (1997), 77 Ohio St.3d 402,408. Also, "a common pleas court is not required to adopt an appraisal methodology espoused by any expert or witness." Id., citing Youngstown Sheet Tube Co. v. Mahoning Cty. Bd. ofRevision (1981), 66 Ohio St.2d 398, paragraph one of the syllabus. The standard of review in this case is whether the common pleas court abused its discretion in determining the valuation of the property. Black v. Cuyahoga Cty. Bd. of Revision (1985), 16 Ohio St.3d 11,14. In this case, the trial court stated that it had considered the evaluations set forth in the three submitted appraisals, and found that the evidence established that the value of the property was "well below the Auditor's valuation." The trial court also stated that "using the composite of the salient points of each evaluation submitted, [it found] that the subject property [had] a value of $1,600,000 as of January 1, 1996." We note that although the Board of Education complains that the trial court relied on the appraisals submitted by Security National Bank despite obvious flaws with the evaluations, there is no indication from the trial court's decision that it was not aware of those flaws, or that it failed to take those flaws into consideration when determining the value of the property. It is clear that the trial court placed a higher value on the property than that established in either of Security National Bank's appraisals. "When questions of fact are tried by a court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise * * * in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law." Civ.R. 52. The Board of Education failed to request findings of fact pursuant to Civ.R. 52. Therefore, we will follow the presumption that the finding of the trial court is correct. Seasons Coal Co. v. Cleveland (1984),10 Ohio St.3d 77, 79-80. The Third Assignment of Error is overruled. IV All of the Board of Education's assignments of error having been overruled, the judgment of the trial court is Affirmed. BROGAN, and KERNS, JJ., concur. (Honorable Joseph D. Kerns, Retired from the Court of Appeals, Second Appellate District, Sitting by Assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to: Robert A. Wineberg Robert M. Morrow Hon. Gerald Lorig 1 According to the record, Urban Redevelopment is a wholly-owned subsidiary of Security National Bank. 2 In dealing with this issue, we address these statutes as they existed at the time this case was heard by the BOR.

2016-07-06 06:36:05.828521+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a sentence imposed by the Wood County Court of Common Pleas. The court imposed two four-year sentences on appellant, to run concurrently, for violation of community control sanctions. Because this court is without jurisdiction this appeal is dismissed. {¶ 2} On January 24, 2000, appellant was charged with three counts of sexual battery under R.C. 2907.03, which are third degree felonies. On February 7, 2000, appellant pled guilty to all three Counts. In exchange for appellant's plea the prosecution agreed to recommend a three-year prison term on one Count, and concurrent five-year terms of community control sanctions, to be served consecutively to the three-year prison term, on the remaining two Counts. On March 20, 2000, the court imposed the recommended sentence. Appellant was informed that should he violate his community control sanctions he would be sent back to prison for the two four-year prison terms, to be served concurrently. {¶ 3} In March of 2003, upon appellant's release from prison he began his community control. In May and July 2003, the State filed petitions to revoke his community control and impose the four-year prison terms on each Count. On August 18, 2003, the court found appellant in violation of his community control, revoked it, and sentenced appellant to two four-year prison terms to be served concurrently. Appellant does not challenge that he did in fact violate his community control. Instead, appellant challenges the original imposition of community control in 2000 as contrary to law. {¶ 4} Appellant assigns the following error: {¶ 5} "The trial court had no authority to violate Mr. Komlosy's community control because the portion of the sentence imposing community control on him was contrary to law." {¶ 6} Appellee asserts that this court is without jurisdiction to hear a challenge to appellant's year 2000 sentence for lack of timely filing appeal under App.R. 4(A). SeeState v. Fisher, 11th Dist. No. 2003-L-194, 2004-Ohio-1706, at ¶ 10. Appellant counters that he is not appealing the 2000 sentence, but instead is merely appealing the 2003 sentence for violation of the community control sanctions imposed in 2000. That the instant appeal is predicated on the propriety of the 2000 sentence, appellant posits, is not fatal because the community control sanctions imposed in 2000 could not have been appealed until appellant was subsequently sentenced for violation of those sanctions. See State v. Ogle, 6th Dist. No. WD-01-040, 2002-Ohio-860, at ¶ 27. {¶ 7} Ogle followed a string of case law in finding that "appeal[s] * * * challenging potential periods of incarceration for violation of community control sanctions * * * [are] not ripe until an actual sentencing order imposes a prison term for the violation of community control sanctions." Id. at ¶ 15-16.Ogle would apply here if appellant was challenging the two four-year prison terms attached to the community control sanctions imposed in 2000. {¶ 8} Instead, appellant challenges the actual community control sanctions because their imposition was "inconsistent" with the three-year prison term. See State v. Comer,99 Ohio St.3d 463, 2003-Ohio-4165, at ¶ 21 ("Consistency and proportionality are hallmarks of the new sentencing law."). Each of the three Counts were identical. The factors that made the offenses more serious and that made recidivism more likely were identical for {¶ 9} each of the three Counts. Thus, appellant argues that the sentence on all three Counts should be identical and concludes that he cannot now serve prison terms for violation of community control sanctions that should have never been imposed in the first place. {¶ 10} In other words, appellant is not challenging what were merely potential prison terms in 2000 regarding the imposition of community control sanctions, but is challenging the sanctions themselves for Counts 2 and 3 as "inconsistent" with the prison term in Count 1. Because appellant is challenging the imposition of the community control sanctions along with the original three-year prison term in 2000, and not the then potential sentences, this court is now without jurisdiction to hear this appeal. This court cannot reach the merits of appellant's assignment of error. {¶ 11} On consideration whereof, this court finds that the appeal must be dismissed for want of jurisdiction. Appellant is ordered to pay the costs of this appeal. Appeal Dismissed. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. Handwork, P.J., Lanzinger, J. Singer, J., Concur.

2016-07-06 06:36:05.897147+00

OPINION {¶ 1} Appellant Beverly D. Nixon appeals the decision of the Court of Common Pleas, Licking County, which found against her in a complaint to quiet title. The appellee is Tracy Parker. The relevant facts leading to this appeal are as follows. {¶ 2} Appellant and appellee are adjoining landowners of residential property located at, respectively, 476 and 480 Ballard Avenue in Newark, Ohio. Appellant`s eastern boundary line abuts appellee's western boundary line. After appellee moved onto her property in 2002, a question arose between the parties as to a chain-link fence apparently separating the two properties. Appellee obtained a professional survey of the area in question, and discovered the fence was located not on the true boundary, but several feet to the east on appellee's land. {¶ 3} On July 17, 2003, appellant filed a complaint to quiet title against appellee, asserting ownership, under the doctrine of adverse possession, of the narrow strip of land between the surveyed boundary and the fence. Appellee timely answered. Appellant subsequently filed a motion for summary judgment, which the court denied. A bench trial before a magistrate was conducted on June 9, 2004. After hearing the evidence, the magistrate issued a decision in favor of appellee. Appellant filed an objection to the decision of the magistrate; however, the trial court adopted the decision of the magistrate on September 29, 2004. {¶ 4} On October 26, 2004, appellant filed a notice of appeal. She herein raises the following sole Assignment of Error: {¶ 5} "I. The court erred when it found that the appellant had failed to provide sufficient evidence to support her claim of ownership in a small strip of land bordering her eastern lot line, by adverse possession." I. {¶ 6} In her sole Assignment of Error, appellant argues the trial court erred in finding appellant failed to prove her claim of adverse possession. We disagree. {¶ 7} To acquire title by adverse possession, a party must prove, by clear and convincing evidence, exclusive possession and open, notorious, continuous, and adverse use for a period of twenty-one years. Grace v.Koch (1998), 81 Ohio St.3d 577, 692 N.E.2d 1009. Failure of proof as to any of the elements results in failure to acquire title by adverse possession. Id. at 579, 692 N.E.2d 1009, citing Pennsylvania Rd. Co. v.Donovan, 111 Ohio St. 341, 349-350, 145 N.E. 479. "It is the visible and adverse possession with an intent to possess that constitutes [the occupancy's] adverse character." Humphries v. Huffman (1878),33 Ohio St. 395, 402. {¶ 8} In her case-in-chief, appellant first called neighbor Patricia Carpenter to the stand. Carpenter, who moved into the neighborhood in 1975, recalled that Walter Estep, a prior owner of what is now appellant's property, put up the fence in question in 1979 or 1980. Tr. at 12. She also testified that over the years, appellant, the Esteps, and the Websters (the other earlier owners) had mowed and planted flowers to the west of the fence. Tr. at 15. {¶ 9} Gary Frazier, another neighbor, also took the stand. He first took note of the fence in 1989 or 1990, when the Esteps were the owners of appellant's present lot. Tr. at 21. He recalled observing appellant and the Esteps mowing the area west of the fence, and he could not recall ever seeing anyone other than a property owner doing anything on appellant's property. Tr. at 22. {¶ 10} Appellant also testified on her own behalf. She moved into 476 Ballard in the summer of 1989. In 1990, she put in a flowerbed along the west side of the fence. Tr. at 26-27. She testified that her use of the strip of land alongside the fence has been continuous since she moved in. Tr. at 27. {¶ 11} After appellant rested her case, appellee, in addition to giving her own testimony, called Lewis Bailey, the prior owner of appellee's property. During the time he lived there, Bailey assumed the fence was on or near the line, and had no related disputes regarding the boundary. Tr. at 35. He continued during cross-examination: {¶ 12} "Q. Okay. The fence that's on the — on the western side of that — of your former property. Did you take that to be the — the symbol that marked where the property — where your property ended and Ms. Nixon's property began? {¶ 13} "A. I guess I really never thought about it. I mean, I know that there's some unwritten law or something that says your fence should never be right on the line, but — I mean, because Bev and — and we got along so well together, I don't think that was ever a question. {¶ 14} "Q. Is — is it fair to say that you have got along well enough that if you'd gone over on her property and sat down in her back yard, that she probably wouldn't come out with a shotgun and — and sent you off? {¶ 15} "A. Oh, yes. I mean there was many times that she sat down with our children and my wife, especially, out back. {¶ 16} Q. So there was never any — there was never any confrontation at all between the two of you. Is that right? {¶ 17} "A. No, not to speak of." Tr. at 36-37. {¶ 18} In the case sub judice, the trial court concluded as follows: {¶ 19} "The Court notes the magistrate found the Plaintiff failed to meet the burden of clear and convincing evidence demonstrating the elements of that possession being specifically that the possession was hostile and adverse. No testimony was offered by anyone to indicate the strip of land in question was not maintained exclusively by the residents of 476 Ballard Avenue with the express consent of the persons who erected the fence at 480 Ballard Avenue." Judgment Entry at 1. {¶ 20} We have previously held that "* * * Ohio law does not require proof of subjective purpose, and even in case of mutual mistake [of boundary], adverse possession may lie." Goodin v. Sforza (Dec. 6, 1989), Licking App. No. CA-3444, 1989 WL 154646, citing Yetzer v. Thoman (1866), 17 Ohio St. 130. Other Ohio appellate courts have indicated that when a boundary line is in dispute, it is not necessary to show knowledge or wrongful intent on the part of the adverse claimant. See Keller v.Russell (June 9, 2000), Scioto App. No. 99 CA 2659, citing Coburn v.Gebauer (Jan. 11, 1996), Seneca App. No. 13-95-14; Goetz v. Miller (Apr. 24, 1981), Ottawa App. No. OT-80-26. {¶ 21} Nonetheless, as was observed in Richardson v. Winegardner, Allen App. No. 1-99-56, 1999-Ohio-917, "* * * a mutual mistake as to where the true boundary lies, and subsequent acquiescence in some other line established by the adjoining owners, does not lend itself to easy analysis by the strict rules of adverse possession." As Judge Milligan aptly noted in his concurring opinion in Bebout v. Peffers (August 18, 1986), Knox App. No. 86-CA-02, 1986 WL 9303, [i]t is difficult to see how a mutual mistake as to the precise location of a surveyed boundary line can propel either of the parties into a state of hostility within the concept of adverse possession." We are also mindful of the Ohio Supreme Court's recognition that "[a] successful adverse possession action results in a legal titleholder forfeiting ownership to an adverse holder without compensation. Such a doctrine should be disfavored, and that is why the elements of adverse possession are stringent." Grace, supra, at 580. {¶ 22} Upon review of the record in this case, including the aforecited testimony, we find no error in the trial court's conclusion that appellant failed to establish, by clear and convincing evidence, the existence of continuous, adverse use by appellant, or her predecessors in interest, of the strip of land along the western edge of the fence. Our decision herein is further buttressed by the evidence that appellant's and her predecessors' exercise of dominion over the parcel at issue essentially consisted of mowing and flower gardening. Mere maintenance of land, such as mowing grass, cutting weeds, and minor landscaping, is generally not sufficient to constitute adverse possession. See, e.g.,Murphy v. Cromwell, Muskingum App. No. CT2004-0003, 2004-Ohio-6279, ¶ 55 (citations omitted). {¶ 23} Accordingly, appellant's sole Assignment of Error is overruled. {¶ 24} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Licking County, Ohio, is hereby affirmed. Wise, J. Hoffman, P.J., concurs. Edwards, J., concurs separately.

2016-07-06 06:36:05.930111+00

DECISION AND JOURNAL ENTRY Appellant East Ohio Gas Company has appealed from the judgment of the Summit County Court of Common Pleas granting a second default judgment in favor of Appellees Michael A. Eady and Rene A. Hushea. This Court affirms. I. On December 5, 1997, Appellees Michael A. Eady and Rene A. Hushea filed a complaint against Appellant East Ohio Gas Company, seeking a declaratory judgment. Specifically, the complaint sought a declaration of the extent of an easement which Appellant holds, granting it a right of way over Appellees' property. Service of the complaint was had on December 15, 1997. On January 16, 1998, Appellees moved the trial court for default judgment. Six days later, Appellant filed a "Motion for Leave to File Answer Instanter." On February 3, 1998, the trial court granted Appellees' motion and entered a default judgment against Appellant. On March 2, 1998, Appellant invoked Rules 55(B) and 60(B) of the Ohio Rules of Civil Procedure and moved the trial court to set aside the default judgment. Appellees filed an objection to which Appellant responded. Subsequently, on April 22, 1998, the trial court vacated its February 3, 1998 default judgment. On October 14, 1998, the trial court issued an order noting that Appellant had not filed an answer. The court then ordered Appellees to file a second motion for default judgment or face a dismissal for lack of prosecution. On October 20, 1998, Appellees complied and filed their second motion for default judgment. Their motion was granted on November 4, 1998. On April 5, 1999, the trial court held a hearing to determine damages and subsequently entered a final order granting the relief prayed for in Appellees' complaint. Appellant timely appealed, asserting two assignments of error. II. First Assignment of Error The trial court erred in granting [Appellees'] motion for default judgment on the ground that [Appellant] had failed to plead or otherwise defend, because the record reflects that an answer was filed. For his first assignment of error, Appellant has essentially argued that the trial court committed plain error when it expressly held that Appellant had failed to file an answer and therefore granted Appellees' second motion for default judgment. Appellant has reached this conclusion based on the following: (1) Appellant had filed a motion for leave to file an answer instanter; (2) it had attached to that motion, as an exhibit, its purported answer; (3) the trial court subsequently set aside its first entry of default; and, (4) that as a result of that vacation, the answer/exhibit became operative as a responsive pleading. This Court disagrees. On January 16, 1998, the day after Appellant's answer was due, Appellees filed their first motion for default judgment. Appellant responded by filing a "Motion for Leave to File an Answer Instanter." The trial court granted the default judgment. That order was subsequently vacated on April 22, 1998. Nevertheless, the trial court, finding that Appellant had failed to file an answer, granted Appellees another default judgment. Thus, the issue before this Court resolves to whether the trial court's grant of default judgment and subsequent vacation of that grant operates as a grant of Appellant's motion for leave to file an answer instanter. This Court answers this query in the negative. Contrary to Appellant's position, an answer attached as an exhibit to a motion for leave to file instanter does not become operative as a pleading, absent an express statement by the trial court. Pollack v. Watts (Aug. 10, 1998), Fairfield App. No. 97CA0084, unreported, 1998 Ohio App. LEXIS 4052, at *8. A trial court may vacate a previous judgment for excusable neglect without granting a party's motion for leave to file an answer instanter. The vacation of a judgment and the grant of a motion for leave to file are two separate concepts.1 As such, the vacation of a default judgment on the grounds of excusable neglect does not automatically grant a party leave to file an answer instanter. As Appellant stated in its brief, the record clearly demonstrates that Appellant filed its answer, but only as an exhibit to its motion for leave to file. The trial court's vacation of its first entry of default judgment in no way transforms the purported answer into an operative pleading. An express statement granting Appellant's motion for leave to file is not in the record, and as such, the motion is presumed to have been overruled.2 Maust v. Palmer (1994), 94 Ohio App.3d 764,769. This Court concludes, therefore, that Appellant failed to file an operative answer and that the trial court properly entered a default judgment on November 4, 1998. Appellant's first assignment of error is overruled. Second Assignment of Error The trial court erred in denying [Appellant's] successive motions for leave to file an answer instanter, given the trial court's express finding [that Appellant's] delay in pleading was the result of excusable neglect, sufficient to require relief from judgment pursuant to Civ.R. 60(B)(1). For its second assignment of error, Appellant has essentially suggested that its successive motions for leave to file an answer instanter were improperly denied on April 5, 1999, as the trial court's finding of excusable neglect on April 22, 1998 should negate Appellant's subsequent failure to answer. This Court is not persuaded. Civ.R. 6(B)(2) states, in pertinent part: [T]he court for cause shown may at any time in its discretion * * * upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect * * *. The Supreme Court of Ohio has held that such a motion is addressed to the sound discretion of the trial court and will not be disturbed upon appeal absent a showing of abuse of discretion. Marion Production Credit Ass'n v. Cochran (1988), 40 Ohio St.3d 265, 271, citing Miller v. Lint (1980),62 Ohio St.2d 209, 214 and Evans v. Chapman (1986), 28 Ohio St.3d 132,135; Brooks v. Progressive Specialty Ins. Co. (July 20, 1994), Summit App. No. 16639, unreported, at 3. On the other hand, when a trial court reviews a request for leave to plead out of rule, it must determine whether the movant has demonstrated excusable neglect.Marion Production, 40 Ohio St.3d at 271. The determination of whether neglect was excusable or inexcusable necessarily involves consideration of all the surrounding facts and circumstances.Id. In the case at bar, at the time Appellant orally moved the trial court to file an answer instanter, over a year had passed since it had been served, and yet it had not filed an appropriate answer. In light of the trial court's October 14, 1998 order, Appellant was clearly on notice that it had not filed an answer. Finally, it failed to respond to Appellees' second motion for default judgment prior to the trial court's entry. Thus, the trial court's decision to deny Appellant's motion for leave to file an answer instanter during the April 5, 1999 hearing was not so arbitrary, unreasonable or unconscionable as to connote an abuse of discretion. See Rock v. Cabral (1993), 67 Ohio St.3d 108,112. Appellant's second assignment of error is overruled. III. Appellant's assignments of error are overruled. The judgment of the trial court is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to Appellant. Exceptions. _____________________________ BETH WHITMORE, FOR THE COURT. SLABY, P.J. and BATCHELDER, J. CONCUR. 1 This is not to say, however, that a trial court could not, in a single entry, vacate a default judgment and expressly grant such a motion. 2 This Court also notes that if Appellant had any doubts about the operation of the trial court's vacation dated April 22, 1998 and the legal impact thereof, Appellant surely was on notice that it had failed to file an answer after October 14, 1998. On that date, the trial court entered an order requiring Appellee to file a motion for default judgment because Appellant had failed to file an answer.

2016-07-06 06:36:03.945253+00

JOURNAL ENTRY AND OPINION {¶ 1} This is an appeal from an order of Judge Brian J. Corrigan that granted summary judgment to Appellees Leland and Margaret Campbell, Mary Frances Weir and Realty One, Inc. on Appellants Ross and Rebecca Dumans' claims for fraudulent misrepresentation in their purchase of a home. The Dumans claim there were material issues of fact in dispute on their fraud claims against all the appellees, and the case should have been tried to a jury. We affirm in part, reverse in part and remand. {¶ 2} From the record we glean the following: In March 1997, the Campbells listed their home on Applewood Lane in Strongsville with Realty One, Inc. through their listing agent, Weir. In July, the Dumans, seeking to purchase their first home, viewed the property on three separate occasions. On the second visit, Mrs. Duman noticed a brown water stain on the ceiling of the first floor lavatory and questioned its cause. She claimed Weir informed the couple that the second floor bathtub had overflowed some years before, that the Campbells had replaced the sub-floor and damaged tile in the bathroom and that the ceiling stain only needed to be painted to fix what was a purely cosmetic problem. {¶ 3} While viewing the finished basement of the home, Mrs. Duman noticed a dehumidifier and averred she asked if there were any water leakage problems and that Wier responded that dehumidifiers in basements were relatively common, that there were no water problems in the basement and that the Campbells had never experienced any. This statement, that there were no current or prior water problems in the basement, was consistent with the representation made by the Campbells on the property disclosure form they completed under R.C. 5302.30.1 {¶ 4} After their third visit to the home, the Dumans submitted a purchase offer, which the Campbells accepted. The pre-printed purchase agreement contained a clause stating that they knew the property was being purchased "as is," and contained an acknowledgment that they had an unimpeded opportunity to, and did, inspect the entire house prior to purchase. The offer was contingent upon a satisfactory buyer home inspection, and, to that end, the Dumans hired Phil Wells, of House Masters of America, to inspect the premises. {¶ 5} In the form/report Wells submitted to the Dumans, he noted that the shower in the second floor bathroom leaked and that there were water stains on the tile floor of the room. He also noted that there was dampness in the basement and evidence of prior water penetration. He qualified his findings by noting that, because of finish-work and floor covering, he could only visually inspect twenty percent of the basement area. {¶ 6} After receiving Wells' report, the Dumans proceeded with the purchase of the home, which closed in August 1997. Shortly after moving in, they noticed significant water seepage in the basement after a "moderate" rain. In addition, contrary to what they had been told by Weir, the Dumans discovered there was major water damage between the first floor lavatory and second floor bathroom when portions of the plaster ceiling fell into the lavatory. {¶ 7} In September 1997, they hired Edward J. Conrad, P.E., of Applied Engineering Inspections, Inc., to conduct a more thorough inspection of the home. In the basement, he found black mold under the carpet and, after removing some of the paneling, discovered a major crack in the foundation. The wood framing and paneling was wet, warped and dry-rotted, suggesting that relatively severe water problems had existed in the basement for a number of years. Conrad found that there was no grout around the shower faucet in the second floor bathroom, that it leaked when operated and that the weight of a person taking a shower caused a joint between the shower wall and base to widen. He concluded that an ongoing problem with the shower water seepage had caused the wooden floor to dry rot to a point that it needed to be completely rebuilt and that the seepage had been present for a number of years. {¶ 8} The Dumans and Mrs. Duman's parents,2 as co-signers of the purchase agreement, filed suit against the Campbells, Weir and Realty One, alleging that the Campbells and Weir had fraudulently and intentionally misrepresented the true condition of the problem areas of the home and that Weir had violated her duty under R.C.4735.67 to advise them that the Campbells' representations may not have been accurate. They sought compensatory and punitive damages. {¶ 9} The Campbells, and Weir and Realty One, through separate counsel, moved for summary judgment on the grounds that no misrepresentations had been made to the Dumans, the Dumans were unable to establish justifiable reliance on any alleged false representations, and the "as is" clause in the purchase agreement mandated that the doctrine of caveat emptor be applied to the Dumans to defeat their claims. The Dumans responded to these motions, and the motions were denied. At a later pre-trial, the Campbells, and Weir and Realty One, moved the judge to reconsider his rulings on the motions which, by journal entry, he agreed to do. The second motions for summary judgment filed by the Campbells and Weir and Realty One, were based on the same grounds as the first ones, but were supplemented with additional evidence asserting a lack of any issues of material fact; the Dumans did not respond, and the motions were granted. {¶ 10} The Dumans appeal, asserting three assignments of error: {¶ 11} I. MOTION FOR SUMMARY JUDGMENT MUST DEMONSTRATE THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT AND THAT THE NON-MOVING PARTY HAS NO EVIDENCE TO SUPPORT ITS CLAIMS. THE DEFENDANTS-APPELLEES FAILED TO DEMONSTRATE EITHER THE LACK OF A GENUINE ISSUE OF MATERIAL FACT OR THAT THE PLAINTIFFS-APPELLANTS HAD NO EVIDENCE TO SUPPORT THEIR CLAIMS. {¶ 12} II. DEFENDANTS ARE NOT SHIELDED FROM LIABILITY BY THE "AS IS" CLAUSE OF A REAL ESTATE CONTRACT FOR THE COMMISSION OF ACTIVE FRAUD IN REFERENCE TO MISREPRESENTATION AND/OR FRAUDULENT CONCEALMENT. {¶ 13} III. THE FACT THAT PLAINTIFFS RECEIVED A HOME INSPECTION REPORT DISCLOSING PRIOR WATER PENETRATION AND DAMP, ALTHOUGH THE HOME INSPECTOR TOLD THE PLAINTIFFS THAT THERE WAS NO CURRENT PROBLEM, DOES NOT MANDATE THE TRIAL COURT'S GRANTING OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WHEN THE HOME INSPECTOR DID NOT HAVE UNIMPEDED ACCESS AND THERE REMAINS A QUESTION OF MATERIAL FACT CONCERNING STATEMENTS MADE BY THE HOME INSPECTOR CONCERNING THE EXISTENCE OF ANY CURRENT PROBLEM AND WHERE THE DEFENDANTS WERE GUILTY OF ACTIVE FRAUDULENT MISREPRESENTATION AND CONCEALMENT. {¶ 14} Under Civ.R. 56, summary judgment shall be entered in favor of a moving party if: {¶ 15} * * * (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.3 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.4 {¶ 16} "The party seeking summary judgment always bears the initial responsibility of informing the court of the basis for the motion and identifying those portions of the record which support his or her claim. Then, and only then, is the initial burden discharged, requiring the nonmoving party to comply with Civ.R. 56(E)."5 {¶ 17} Weir and Realty One contend that, because the Dumans failed to respond to the second motions for summary judgment, they cannot be said to have submitted any evidence establishing an issue of material fact and, therefore, have not met their burden under Civ.R. 56(E). Wells' affidavit attached to the second motions averred he advised the Dumans of previous water problems in the basement, and Weir and Realty One now argue that we must accept the affidavit as unopposed in disposing of this appeal. In Jackson v. Alert Fire Safety and Equipment, Inc.,6 however, the Ohio Supreme Court held: {¶ 18} Civ.R. 56(C) provides, in part, that: "Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * *" Hence, given the explicit language of Civ.R. 56(C), a court is not limited to review of the moving party's affidavit(s) attached in support of his or her motion for summary judgment. More appropriately, the court may examine all evidence properly before it. Such evidence may include pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts and written stipulations of fact. {¶ 19} Accordingly, in a de novo review of a grant of summary judgment, we may examine all evidence properly introduced below, including the evidence attached and cited in opposition to both the initial motions for summary judgment. Moreover, the second motions for summary judgment did not contain grounds different from those in the first motions, but merely supplemented them with an additional affidavit from Wells. As such, we are free to examine the entire record below in deciding the merits of this appeal, notwithstanding the Dumans' failure to expressly incorporate their brief in opposition to the first motions as their response to the second ones. {¶ 20} The doctrine of caveat emptor, which precludes recovery in an action by the purchaser for a structural defect in real estate, applies in Ohio. "To make the doctrine operate fairly, courts have established certain conditions upon the rule's application. We summarize and adopt these conditions as follows: (1) the defect must be open to observation or discoverable on reasonable inspection, (2) the purchaser must have an unimpeded opportunity to examine the property and, (3) the vendor may not engage in fraud."7 An "as is" clause in a real property sale agreement forecloses recovery for claims rooted in fraudulent non-disclosure of latent structural defects, but does not affect the right of a purchaser to recovery of damages resulting from affirmative fraudulent misrepresentation on the part of a seller.8 {¶ 21} In Ohio, in order to establish fraud, each of the following elements must be established: "* * * (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance."9 {¶ 22} Once alerted to a possible defect, a purchaser may not simply sit back and then raise his lack of expertise when a problem arises. Aware of a possible problem, the buyer has a duty to either (1) make further inquiry of the owner, who is under a duty not to engage in fraud, or (2) seek the advice of someone with sufficient knowledge to appraise the defect.10 {¶ 23} The Dumans presented evidence that the Campbells' property disclosure statement and Weir represented to them that, while the bathtub in the second floor bathroom had overflowed four or five years earlier, the sub-floor and tile had been replaced and there was no current problem involving that floor or the lavatory ceiling. Wells, however, reported that the grout-free second-floor shower leaked and that there were current water stains on the tile flooring. Additionally, Mrs. Duman had noted and inquired about the readily visible, prominent water stain on the ceiling under the bathroom. Under these circumstances, did the Dumans have a right to rely on the representations of the Campbells, given their knowledge of an obvious potential problem concerning water leakage in the second-floor bathroom? {¶ 24} "In property transactions, there is no right to rely on oral representations regarding the property transferred where the true facts are equally open to both parties. * * * Ohio law requires a person to exercise proper vigilance in his dealings so that where one is put on notice as to any doubt about the truth of the representation, the person is under a duty to reasonably investigate before reliance thereon."11 It has been noted that the cause of a structural defect is not required to be open and obvious; rather, it is the open and obvious nature of the defect itself which invokes the defense of caveat emptor.12 {¶ 25} There has been no dispute over the Dumans' unimpeded opportunity to inspect the bathrooms in the home they purchased or that the symptoms of a defect were not readily observable. Because the potential for damage due to water leakage was known to the Dumans through their own inspection of the home as well as that of Wells, they cannot claim to have justifiably relied on the Campbells' statement that past water damage in the bathroom areas had been completely fixed or that there was no current problem or structural damage. The doctrine of caveat emptor bars recovery for claims involving the bathroom plumbing. To that extent, summary judgment was appropriate. {¶ 26} In opposition to the Campbells' position on the basement water problems, however, the Dumans, through their depositions and the Conrad report, contended that the cracks in the foundation that resulted in water infiltration were concealed by carpet, paneling, and a large entertainment center directly in front of the wall that prevented Wells from fully inspecting what turned out to be the problem area. In addition, at the time of Wells' inspection, the Cleveland area had been in the midst of a rather lengthy drought, casting doubt on whether the problems of water leakage would have been open to observation. {¶ 27} That the Dumans discovered the basement water problem within weeks of moving in and Conrad's finding that the condition of the framing behind the paneling was evidence that leakage had been a constant problem of some years created a question about the veracity of the Campbells' disclosure and their intent in making it. {¶ 28} While Wells had noted in his report evidence of dampness and "prior water penetration" in the basement, Mrs. Duman testified he told her that he could find no evidence of a basement water problem, and that she should rely on the Campbells' disclosure. This creates an ambiguity in Wells' inspection report and contradicts his later affidavit essentially repeating the findings made in his report in narrative form. There is, therefore, a question over whether the Dumans had notice of a current water problem in the basement or whether they justifiably relied on the Campbells' disclosure, and there is no question that the water problems in the basement have necessitated repairs, placing damages at issue. {¶ 29} The Dumans have presented evidence which, construed in a light most favorable to them, creates an issue of material fact over whether the doctrine of caveat emptor should bar their basement-related claims against the Campbells. Since the disclosure statements could, if established as false, represent affirmative fraudulent misrepresentations, the "as is" clause in the purchase agreement may not apply sub judice. Summary judgment was not appropriate to that extent. {¶ 30} R.C. 4735.67 governs the disclosure duties of a real estate salesperson and states, in relevant part: {¶ 31} (B) A licensee is not required to discover latent defects in the property or to advise on matters outside of the scope of the knowledge required for real estate licensure, or to verify the accuracy or completeness of statements made by the seller, unless the licensee is aware of information that should reasonably cause the licensee to question the accuracy or completeness of such statements. {¶ 32} * * * * {¶ 33} (E) No cause of action shall arise on behalf of any person against a licensee for disclosing information in compliance with this section, unless the information is materially inaccurate and the disclosure by the licensee was made in bad faith or was made with reckless disregard for the truth. {¶ 34} According to R.C. 4735.68(A), Weir would not be liable to the Dumans for false information that the Campbells provided to her and which she provided to the Dumans in the real estate transaction, unless she had actual knowledge that the information was false or acted with reckless disregard for the truth. {¶ 35} The Dumans presented evidence that, before they viewed the home, another agent or prospective buyer asked Weir about the dampness under the basement carpet and the presence of what appeared to be mildew on a stereo speaker in the area of what eventually was discovered to be the wet area of the basement. They submitted her June 18, 1997, notes she made after the showing of the home as evidence that she had been made aware of the water problem(s) on that date. Accordingly, liability would attach to Weir if it is determined that she had knowledge of the potential falsity of the Campbells' disclosure, and the knowledge reasonably should have given her cause to question it, and she intentionally or with reckless disregard for the truth of the matter, communicated the Campbells' disclosure of a dry basement to the Dumans. Summary judgment for Weir and Realty One on the basement problems was also inappropriate. Assignments of error one, two and three have merit, in part. Judgment affirmed in part, reversed in part and remanded. It is ordered that appellant and appellee share the 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. TIMOTHY E. McMONAGLE, A.J., CONCURS; ANN DYKE, J., CONCURS IN PART ANDDISSENTS IN PART (See Concurring and Dissenting Opinion). 1 The form requires disclosure of current problems or prior repairs, etc. of problems within last 5 years. 2 We note that summary judgment was generally granted in this case as to all Plaintiffs on all claims, in favor of all Defendants; the failure of Patrick and Mary Spooner (Rebecca Duman's parents) to file a notice of appeal operates as a jurisdictional bar to our consideration of any error they could have asserted on appeal. See State ex rel. BoardwalkShopping Center, Inc. v. Ct. of Appeals for Cuyahoga County (1990),56 Ohio St.3d 33, 564 N.E.2d 86. 3 Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369,696 N.E.2d 201, citing Horton v. Harwick Chem. Corp. (1995),73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. 4 Zivich v. Mentor Soccer Club, Inc., supra, citing Dresher v.Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274. 5 Vahila v. Hall (1997), 77 Ohio St.3d 421, 430, 674 N.E.2d 1164,1171. See, also, Sabol v. Richmond Heights Gen. Hosp. (1996),111 Ohio App.3d 598, 604, 676 N.E.2d 958, 962. 6 (1991), 58 Ohio St.3d 48, 567 N.E.2d 1027. 7 Layman v. Binns (1988), 35 Ohio St.3d 176, 177, 519 N.E.2d 642,644. 8 Eiland v. Coldwell Banker Hunter Realty (Aug. 14, 1997), Cuyahoga App. No. 71369, unreported, relying on Kaye v. Buehrle (1983),8 Ohio App.3d 381, 382, 457 N.E.2d 373, 375-376. 9 Russ v. TRW, Inc. (1991), 59 Ohio St.3d 42, 49, 570 N.E.2d 1076,1083. 10 Tipton v. Nuzum (1992), 84 Ohio App.3d 33, 38,616 N.E.2d 265. 11 Smith v. Schneider (Nov. 3, 1994), Cuyahoga App. No. 66958, unreported, relying on Finomore v. Epstein (1984) 18 Ohio App.3d 88, 90,481 N.E.2d 1193, and Faust v. Valleybrook Realty Co. (1981),4 Ohio App.3d 164, 446 N.E.2d 1122. 12 Smith v. Schneider, supra, relying on Layman v. Binns, (1988),35 Ohio St.3d at 177-78, 519 N.E.2d 642.

2016-07-06 06:36:03.983032+00

The present appeal arises under R.C. 2744.02(C) and R.C.2501.02, which authorize interlocutory appeals of orders denying political subdivisions and their employees the benefit of immunity from liability. The employees in this case were Robert Bobbit, Chief of the Miamisburg Fire Department, and Dennis Lutz, a Captain in the Department. Bobbit and Lutz were sued for defamation and for allegedly intentionally inflicting emotional distress on Appellee, Orpehus Garrison, who took a medical retirement from the Department in 1997. After some discovery was conducted, Bobbit and Lutz (also referred to as Defendants) filed a motion for summary judgment. Concerning the defamation claim, the Defendants asserted the statute of limitations as a bar. Next, regarding the emotional distress claim, Defendants made two main points. First, they maintained they were immune from suit under R.C. 2744.03. Second, they argued that summary judgment was proper because Garrison could not satisfy the requirements for establishing an emotional distress claim. Although the trial court agreed with the Defendants about the defamation claim, the court found triable issues with respect to emotional distress. As a result, the summary judgment motion was granted in part and denied in part. Bobbit and Lutz now appeal the denial, raising the following assignments of error: I. The trial court erred in denying Defendants-Appellants' motion for summary judgment as to Plaintiff-Appellee's intentional infliction of emotional distress claim as Plaintiff-Appellee failed to establish all of the elements necessary to succeed on such a cause of action. II. The trial court erred in denying Defendants-Appellants' motion for summary judgment because the Appellants did not act manifestly outside the scope of their official responsibilities; did not act with malicious purpose; in bad faith, or in a wanton and reckless manner; and did not act contra to any other section of the Revised Code that may have expressly imposed liability. After considering the assignments of error, we find them without merit and affirm the decision of the trial court. I The claims against Bobbit and Lutz arose from events occurring during the employment of Orpehus Garrison (known as Gary Garrison) with the Miamisburg Fire Department. Construing the evidence in Garrison's favor, the followings facts, and factual disputes, where applicable, appear in the record. Garrison was first scheduled to start employment with Miamisburg as a firefighter in February, 1991. However, because Garrison was a Captain in the Marine Corps, he was instead mobilized for action in Desert Storm in January, 1991. At that time, Garrison was told by Miamisburg that his job would be held until he returned. Subsequently, Garrison returned from Desert Storm in June, 1991, but Miamisburg was not able to bring him into the Department until August. When Garrison started work, Miamisburg assigned him an August seniority date. Garrison disputed the date, claiming that a February, 1991 seniority date should be used since federal law protected his job during mobilization. Miamisburg disagreed, and Garrison was forced to contact the Department of Labor. After the Department of Labor intervened, Miamisburg eventually agreed to give Garrison the February, 1991 seniority date. Because a clause in the law also required Garrison to complete probation before Miamisburg had to take action, Garrison was not supposed to receive the correct seniority date until the end of his one-year probationary period. When the probationary period ended, however, the City claimed to have forgotten the terms of the agreement. This resulted in the need for a second intervention by the Department of Labor. Eventually, the matter was resolved and Garrison received the February, 1991 seniority date. After this unfavorable beginning, relations did not improve. Garrison testified that he was harassed throughout his employment and was treated differently from other employees. These incidents included denial of overtime pay, charging Garrison with vacation time when he attended training, denial of access to special duty teams formed by the Department (scuba, hazardous materials, tactical entry, etc.), refusal to pay expenses Garrison had when similar payments were authorized for other employees, ostracism from the fire chief's softball team, denial of promotions, and unequal treatment when disciplinary matters arose. Garrison was labeled as a troublemaker, and was also used as an example in union meetings of how management could make an employee's life miserable if management did not like the employee. Additionally, Garrison was called a "slumlord" by his supervisor because Garrison owned a number of rental properties in Miamisburg. Derogatory references were also made to Garrison's military background and demeanor. In August, 1995, an emergency call came in to the Fire Department about Garrison's father, either as a non-breather or a DOA. Garrison was the first person on the scene, and was quite upset. After this incident, some employees commented to Chief Bobbit that Garrison was not the same person he had been before. During the same time period, Garrison struggled over a breakup with his girlfriend, who had left him about a month before his father's death, i.e., in July, 1995. A friend and co- worker, Randy Botts, discussed the break-up with Garrison's supervisor, Captain Lutz. Botts told Lutz that he had talked to Garrison off-duty about the situation and was concerned that Garrison might be suicidal. In November, 1996, Garrison had a recreational fire at one of his rental properties. At the time, departmental policy was that the fire department should be notified of a recreational fire. The department would then send someone out to inspect the fire. Although Garrison called about 9:00 a.m. to report the fire, no one was sent to inspect. Around 3:00 p.m., a fire inspector appeared and told Garrison to extinguish the fire because it was outside the context of the recreational burn ordinance. Garrison extinguished the fire, as directed. Chief Bobbit was notified about the incident and told the inspector to make out a report. When the inspector contacted dispatch for a number, the dispatcher said she had received a number of calls on the fire. Later that day, the fire department received more calls about a fire at the same property. Around 7:00 p.m., the duty officer at the downtown fire station called Chief Bobbit to tell him about the calls. At that point, Bobbit told the officer to respond to the scene. Bobbit also went because one of his employees was involved. When they arrived on the scene, another fire was burning in the back yard, apparently at the location of the earlier fire. On the day of the fire, Garrison was taking out plastic and putting in drywall at the rental property where the fire was located. His procedure was to take trash cans full of plastic to a dumpster about a half mile away and then come back. Garrison repeated this process all day. When the chief showed up with the duty officer, Garrison went out back to see what had happened. The big pile of coals was burning again. Garrison believed the fire had either rekindled or was restarted by kids who were around. Despite these potential explanations, the chief had Garrison arrested for having a recreational fire. To Garrison's knowledge, he was the only person who had been arrested for having a recreational fire since he had come to work for the department. In fact, the fire department went to one individual's house about three times a year to put out recreational fires, but had never arrested the individual. To Garrison, this incident confirmed what the people in the department had said was true, i.e., Chief Bobbit was out to get him. Following his arrest, Garrison did not return to work. He stayed in his house for a couple of weeks and sent his sister to court to plead no contest because he was not in shape to leave the house. Garrison remained off work, went through the Employee Assistance Program (EAP), and eventually took a medical retirement on July 2, 1997. During the time that Garrison was on medical leave, rumors occurred about the possibility that Garrison would come back to the fire department and harm people. No real basis was given during anyone's testimony for the origin of these beliefs and the testimony was conflicting as to where the rumors originated. Chief Bobbit denied ever having a conversation about Garrison's mental well- being with anyone other than at a staff level meeting. Rumors were brought to the chief's attention after Garrison failed to return to work. There were concerns that Garrison was not mentally healthy, that he had a lot of trauma in his life, and that he had never gotten over his father's death and a breakup with a young lady. Concerns also existed about the safety of the employees. Bobbit testified that two different people told him that Garrison had threatened his life. He also heard that Garrison had threatened Captain Lutz's life. Inexplicably, Bobbit could not remember the names of the people who told him this, nor was he aware of any names of specific people who were concerned about their safety. Bobbit discussed the safety concerns with the assistant city manager, who then sent Garrison a letter barring Garrison from city property until he was released for duty. A second letter allowed Garrison to come on city property to retrieve items from his personal locker, but only if accompanied by an official. Captain Lutz blamed the rumors on the co-workers on Garrison's shift (Randy Botts, Jack Ikerd, and Bob Robinson). According to Lutz, these workers approached him after Garrison went on leave and expressed concern that Garrison might come back and harm them. Before being approached by these employees, Lutz did not have any concerns about safety. Lutz was not able to recall any comments by specific employees, but did say that the employees knew Garrison's hobbies were guns and military paraphernalia. Lutz also knew Garrison was going to EAP. Lutz denied being aware of any threats that Garrison made on anyone's life. His safety concerns were based on Garrison's suicide talk, the gun collection, and the EAP treatment. After talking to the employees, Lutz went to Bobbit and told him about the safety concerns. According to Randy Botts, Garrison's co-worker and friend, Captain Lutz said immediately after Garrison's sick leave that he was concerned about what Garrison would do next. Lutz did not give any basis for his feelings or concern for personal safety other than Lutz's observation as a supervisor. Lutz did not mention concern over the gun collection, Garrison's reaction to his father's death, or the EAP treatment. Botts told Lutz he did not think there was anything to worry about because he did not believe Garrison was capable of harming anyone. Botts also heard comments from other people about concerns for their safety, but did not think they were completely serious. As was mentioned, Garrison never returned to work at the department. While on medical leave, he consulted a psychologist and was also sent to a psychologist by the disability board. Garrison was told the work environment was hostile and he should not go back. Accordingly, Garrison took medical retirement. II In the first assignment of error, Defendants contend that the trial court failed to properly evaluate the elements of the intentional infliction of emotional distress claim. As a preliminary matter, Defendants stress that their conduct was not outrageous. Another particular point of their argument is that Garrison's mental anguish would not have crippled a reasonable person who was similarly situated. Although the question is close, we believe the trial court correctly denied summary judgment. We have previously noted that to establish a claim for intentional infliction of emotional distress, the plaintiff must show: (1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; (2) that the actor's conduct was so extreme and outrageous as to go "beyond all possible bounds of decency" and was such that it can be considered as "utterly intolerable in a civilized community," * * * (3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and (4) that mental anguish suffered by plaintiff is serious and of a nature that "no reasonable man could be expected to endure it." Bourekis v. Saidel Associates (June 22, 1994), Montgomery App. No. 14105, unreported, p. 8, quoting from Pyle v. Pyle (1983),11 Ohio App.3d 31, 34. In Yeager v. Local Union 20 (1983),6 Ohio St.3d 369, the Ohio Supreme Court explained the nature of this tort by way of the following description, which has been quoted many times in varying factual situations: "[i]t has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' "The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. * * *" Id. at 374-75, quoting Restatement of the Law 2d, Torts (1965) 71, 73, Section 46, Comment d. The resolution of these kinds of cases is fact-intensive and often depends on distinctions between conduct that seems outrageous and conduct that is undesirable, but not quite offensive enough to be called outrageous. For example, in Yeager, the Ohio Supreme Court found that summary judgment was not proper where union members entered the plaintiff's office, threatened him with injury, and made menacing remarks about his family. Similarly, in Reamsnyder v. Jaskolski (1984), 10 Ohio St.3d 150, a rental car agent falsely told the plaintiff during a dispute over the return of a rental car that the car had been reported stolen and that he would "tear [plaintiff's] face off," unless the car were returned. Id. at 51-52. The court concluded that these remarks, coupled with evidence of mental distress, were sufficient to form the basis of an intentional infliction of emotional distress claim. By contrast, in Breitensen v. City of Moraine (Nov. 5, 1992), Montgomery App. No. 13375, unreported, we affirmed summary judgment for the City of Moraine and its city manager where the city manager swore at the plaintiff during a pre-disciplinary hearing and told the plaintiff that "you better be careful what you imply that I said, * * * [o]r I'm going to come across that fucking table after you." Id. at p. 1. While we found the comments of the City Manager clearly inappropriate, we also felt the conduct fell short of being "extreme and outrageous." Id. at p. 7. Similarly, in Hall v. Montgomery County Dept. of SanitaryEngineering (May 18, 1994), Montgomery App. No. 14189, unreported, we rejected the plaintiff's claim for intentional infliction of emotional distress. In that case, the plaintiff was involved in an ongoing conflict with his supervisors and was improperly subjected to disciplinary procedures on two occasions. Had the present case simply involved the events leading up to Garrison's citation for violation of the burn ordinance, we would have concluded, as we did in Hall and Breitensen, that the Defendants' alleged conduct was not "outrageous" as that term has been interpreted. The incidents occurring during Garrison's employment, while perhaps annoyances or petty oppressions, were not extreme or outrageous. On the other hand, the events that took place beginning with the burn violation, construed in Garrison's favor, are similar to conduct found objectionable in various cases. Specifically, there was evidence indicating that the rumors and comments that Garrison would physically harm other firemen, including Captain Lutz, originated with Captain Lutz. Although Lutz claimed that such thoughts never entered his mind before the members of Garrison's shift, including Randy Botts, brought the safety issue to his attention, Botts contradicted this account. In this regard, Botts said Lutz was the one who raised the issue of Garrison's potential threat to others, immediately after Garrison's sick leave started. Moreover, Lutz gave Botts no basis for his comments, other than his "observations" as a supervisor. However, the record contains no evidence of observations that would reasonably have caused Lutz to believe Garrison would harm others. More important, the record offers no logical explanation why Lutz or anyone else would make inappropriate comments to that effect. Instead, the evidence indicates that before Garrison took sick leave, he had been a competent employee with few discipline problems in five years of service. Furthermore, while Garrison had been depressed during the previous year over the death of his father and a break-up with a girlfriend, the record is devoid of a single instance of aggression on Garrison's part toward anyone. As an additional point, while Lutz claimed to have liked Garrison, his references to Garrison as a "slumlord" and to "Gary's ghettos" do not exactly convey an impression of fondness. Likewise, the record reveals some evidence that Chief Bobbit's actions (including those taken in connection with the arrest and the exclusion from city property) may have been motived by ill will. In this regard, Bobbit's denial that he considered Garrison a troublemaker is contradicted by Botts's testimony. According to Botts, there was a consensus that Garrison was a troublemaker. Furthermore, Botts said some people at the station felt Garrison did not have a chance of being promoted because he was on the Chief's "shit list." Botts also testified that he felt Bobbit disliked Garrison. The presence of ill will is also implied by evidence that Garrison was treated differently than others in connection with the violation of the burn ordinance and the exclusion from public property. In this context, Garrison testified that to his knowledge, no one had ever been arrested for a recreational fire before, even though the department put out a number of recreational fires, including several fires for the same person. Similarly, Garrison also said no one had ever been banned from a public place in Miamisburg before. Chief Bobbit did not comment on this latter point, but did say that a citation is automatically issued if the fire department is informed of a fire and has to go out a second time. If, in fact, others were cited for recreational fires, the implication of ill will could be offset. However, no such evidence was given to the trial court. Additional conflicts bearing on credibility appear in the evidence submitted to support summary judgment. For example, Bobbit said he contacted Lutz after hearing rumors around the station. By contrast, Lutz said he was the one who contacted Bobbit, upon hearing the safety concerns expressed by the co-workers on Garrison's shift. Bobbit also testified that he feared for his safety and that he had never had conversations with any member of the department about Garrison's mental well-being, other than at a staff meeting level. Again, by contrast, Botts (who was not a supervisor), said he had talked to Bobbit a couple of times about Garrison's mental well-being. Botts further said Bobbit never expressed any fears about his own safety. Compared to acts found "outrageous" in other cases, the Defendants' acts in implying that Garrison would physically harm others, in arresting Garrison for a violation that was bound to humiliate him, and in banning Garrison from public property (also a source of humiliation to a reasonable person), would be outrageous if Garrison did nothing to warrant such treatment. See, e.g., Yeager, supra, and Reamsnyder, supra. See also, Brownv. Denny (1991), 72 Ohio App.3d 417, 423. In Brown, we held that the trial court erred in removing the intentional infliction of emotional distress issue from the jury where maternal grandparents removed their grandchildren to another state and deprived the father of his right to visitation. The evidence also indicated that when the grandparents removed the children, they were aware of a court order giving the father visitation. Similarly, inFoster v. McDevitt (1986), 31 Ohio App.3d 237, we held that the trial court erred in directing a verdict on a claim for intentional infliction of emotional distress. In Foster, the employer had berated plaintiff's decedent in front of other employees and had also described him as a thief and a liar. To the same effect are Potter v. Troy (1992), 78 Ohio App.3d 372 (emotional distress claim should be resolved by jury where plaintiff alleged that supervisors made him remove human remains from burial lots and discard them in cemetery dump, and then reprimanded him when he complained); and Uebelacker v. CincomSystems, Inc. (1988), 48 Ohio App.3d 268, 277 (summary judgment improper on emotional distress claim where, among other things, supervisor restrained employee from leaving cubicle after employee was terminated). As an additional matter, we reject the Defendants' contention that they cannot be held liable because a reasonable person in Garrison's situation would not have suffered mental anguish. InFoster, we noted that: "[t]he extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests. * * * " "The extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know. It must be emphasized again, however, that major outrage is essential to the tort; and the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough." 31 Ohio App.3d at 240, quoting Restatement of the Law 2d, Torts (1965) 74-75 Section 46, Comments e and f. In the present case, both Lutz and Bobbit were in positions of power over Garrison, with actual or apparent authority to affect his interests. Moreover, both men knew or should have known that Garrison's mental condition was already fragile. Bobbit first had concerns about Garrison's mental health when Garrison's father died. Garrison was distraught at the scene and Bobbit was aware that some employees felt Garrison "just wasn't the same person" when he returned to work after his father's death. Lutz also specifically knew from talking to Botts before Garrison's medical leave that Garrison might be suicidal over a break-up with a girlfriend. Again, these facts do not indicate a potential threat of harm to others. To the contrary, the only threat Garrison appears to have posed was to himself. On the other hand, the facts do reveal that Garrison may have been peculiarly susceptible to emotional distress at the time. Under the circumstances, unfounded accusations, humiliation, and exclusion would have been unjustifiable, and could have caused even a reasonable person in Garrison's position to suffer mental anguish. Knowledge of Garrison's susceptibility also satisfies the first prong of the standard used to evaluate these types of cases, i.e.,"`that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff.'" Bourekis, supra, at p. 8. For these reasons, enough evidence was presented to withstand the motion for summary judgment. In making these comments, we specifically do not intend to express an opinion on the merits of this case. Instead, our conclusion is based solely on the principle that genuine issues of material fact exist. If admissible proof is presented at trial that threats were, in fact, made and that legitimate safety concerns existed, a jury could find the Defendants' actions appropriate. By the same token, if no admissible evidence exists, a jury could find intent by the Defendants to cause emotional distress or, alternatively, that the Defendants knew or should have known that their actions would cause serious emotional distress. In any event, the issue is one for resolution by a jury, not by the court as a matter of law. Accordingly, because the trial court correctly denied the motion for summary judgment on the claim of intentional infliction of emotional distress, the first assignment of error is overruled. III In the second assignment of error, Defendants contend the trial court erred in denying their motion for summary judgment on immunity. The specific issue presented is "[w]hether the trial court erred in holding that Defendants-Appellants were not entitled to governmental immunity as provided for under R.C.2744.01 et. al." As a preliminary point, we note that the trial court did not reject Defendants' immunity claim. Instead, the court simply felt the question should be heard by a jury, due to factual issues. We agree with this conclusion. R.C. 2744.03(A) provides in pertinent part that: [i]n a civil action brought against a political subdivision or an employee of a political subdivision to recover damages * * * allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability: * * * 6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and 3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies: (a) The employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities; (b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner. (c) Liability is expressly imposed upon the employee by a section of the Revised Code. For purposes of R.C. 2744.03, we have interpreted malice, bad faith, and wanton or reckless as follows: "Malice" is the intention or design to harm another by inflicting serious injury, without excuse or justification, by an act which in and of itself may not be unlawful. * * * "Bad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another." "Wanton misconduct charged against a defendant implies a disposition to perversity and a failure to exercise any care toward those to whom a duty of care was owing when the probability that harm would result from such failure was great and such probability was actually known, or in the circumstances ought to have been known, to the defendant." "The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of * * * harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." Parker v. Dayton Metropolitan Housing Authority (May 31, 1996), Montgomery App. No. 15556, unreported, p. 6 (citations omitted). Taking these definitions into account, and construing the facts in Garrison's favor, we believe factual issues existed concerning whether the Defendants acted with malicious purpose, in bad faith, or in a reckless or wanton manner. In this context, Defendants' primary criticism of the trial court is that the court did not explicitly consider the above (or similar) definitions when evaluating the immunity issue. According to Defendants, the trial court relied too heavily on the concept that wanton misconduct is normally a jury issue. In particular, Defendants stress that summary judgments were granted and affirmed in the two cases cited by the trial court for this general principle of law. See, Fabrey v. McDonald Village PoliceDept. (1994), 70 Ohio St.3d 351, and Marcum v. Talawanda CitySchools (1996), 108 Ohio App.3d 412. Because of the difference in results between those cases and the present (where summary judgment was denied), Defendants feel the trial court's reliance on Fabrey and Marcum was misplaced. We do not read the trial court's comments and citations to mean that summary judgment must always be denied if wanton misconduct is alleged. Instead, the trial court cited Fabrey andMarcum for the proposition that such issues are normally jury questions. This is a correct statement of law, and we have said as much previously. See, Behrens v. Springfield City Bd. of Educ. (June 28, 1995), Clark App. No. 94-CA-92, unreported. In Behrens, we further explained that: [i]t is true that the issue of wanton misconduct is normally a jury question, but the standard of showing wanton misconduct, is, however, high. Fabrey v. McDonald Police Dept., supra, 356. In Fabrey, the Supreme Court approved the grant of summary judgment to the defendants because it found no evidence of willful or wanton misconduct. Similarly, in the case before us, we have already determined that there was no evidence of wanton or willful or reckless misconduct. Where the evidence in the record does not suggest a material factual issue on the question of reckless or willful or wanton misconduct, [it] is perfectly proper to determine the case by means of summary judgment. Id. at p. 5. This concept is not novel, nor does it preclude denial of summary judgment if the record contains factual issues about a defendant's conduct. As we mentioned earlier, the inquiry in these cases is fact-intensive. No one would be surprised at the notion that the facts of a particular case merit summary judgment and the facts of another do not. To take Behrens as an example, the plaintiffs' son was hit by an automobile while walking to school. In bringing suit against the school board and the principal, the plaintiffs alleged wanton or reckless conduct on the part of the defendants. The facts in the case indicated that a designated crosswalk existed and that the school provided patrol guards and crossing volunteers. However, the child ran into the street from between parked cars, in an undesignated area, and was hit by a car. In addition to providing guards, the school had cautioned parents in a newsletter that children should use the designated crosswalks. Students had also been instructed to this effect at school. And finally, within a few months of the accident, the school had even sent a handwritten note home to the child's mother, asking her to see that her son took the "proper and safe route to school each day." Id. at p. 1. This note was prompted by statements the son had made to the patrol guard and crossing volunteers about his mother's instructions to cross in the middle of the block. In light of these facts, we found no evidence of wanton or reckless conduct, because the principal could reasonably have done nothing more to protect the student. Behrens presents a set of facts that differ from those in the present case. Based on the evidence of record to date, and given our discussion of the first assignment of error, we find genuine issues of material fact concerning whether the Defendants' "acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." R.C.2744.03(A)(6)(b). Consequently, the trial court correctly denied summary judgment on the Defendants' claim of immunity from liability. In light of the preceding analysis, both assignments of error are overruled and the judgment of the trial court is affirmed. WOLF, J. and FAIN, J., concur. Copies mailed to: Richard B. Reiling Robert J. Surdyk Hon. Dennis Langer

2016-07-06 06:36:04.055516+00

OPINION {¶ 1} Defendant-appellant/cross-appellee, The Insurance Company of the State of Pennsylvania (ISOP), appeals from the judgment of the Jefferson County Court of Common Pleas determining that plaintiff-appellee/cross-appellant, George Randolph, Sr. (Randolph), is entitled to uninsured/underinsured motorists coverage and ruling that Indiana law applies to the disputed insurance policy. {¶ 2} The pertinent facts of this case are contained in the "Stipulations of Facts" filed April 13, 1999. ISOP, a Pennsylvania corporation, issued an insurance policy (Policy) to Combined Transport Systems, Inc. (Combined Transport). Combined Transport is an interstate trucking company incorporated in Indiana. Although its principal office is in Indiana, it operates thirty-one terminals in twelve different states. The Policy period commenced on September 30, 1996 and was in effect on March 25, 1997. On January 8, 1997, Lawrence Vasser, acting on behalf of Combined Transport, signed a "Coverage Election" form specifying limits for uninsured and underinsured motorists (UM/UIM) coverages in the amount of $25,000 per person and $50,000 per accident. {¶ 3} On March 25, 1997, Randolph was hauling a loaded trailer under a lease agreement with Combined Transport. Randolph's tractor was a "covered auto" and he was an "insured driver" under the liability coverage of the Policy. Randolph was involved in an accident in West Virginia that was caused by the negligence of Nicholas Singer, a resident of West Virginia. The limits of liability for bodily injury under Nicholas Singer's Nationwide Auto Insurance coverage were $50,000, and Nationwide paid those limits to Randolph in July of 1998. {¶ 4} Randolph is an Ohio resident and his GMC tractor was registered and garaged in Ohio at the time the Policy was issued and at the time of his accident on March 25, 1997. {¶ 5} On September 10, 1998, Randolph filed a complaint in the Jefferson County Court of Common Pleas asking for declaratory judgment, damages and other relief. Randolph demanded a declaratory judgment on two issues: 1) Under R.C. 2721, he was entitled to UM/UIM benefits under the Policy for damages suffered as a result of the accident; and 2) If the UM/UIM coverage of the Policy failed to comply with Ohio law, that the insurer who issued the Policy was nevertheless liable for payment of UM/UIM benefits in conformity with Ohio law. Due to the nature of the claims, the court ordered the claim for declaratory judgment and the claim for damages to be bifurcated with the action for declaratory judgment to proceed first. On May 17, 1999, ISOP moved for summary judgment determining that Indiana law, not Ohio law, applied to the case and, that under Indiana law, it was entitled to judgment as a matter of law. {¶ 6} The court reviewed the memoranda filed by the parties, the stipulated facts and exhibits, the arguments of counsel and the deposition of Lawrence Vasser, a Combined Transport employee. On July 13, 1999, in a journal entry that does not specify if it is a judgment on the declaratory judgment or the motion for summary judgment, the court found the state bearing the most significant relationship to the contract of insurance was the state of Indiana, the state in which the named insured, Combined Transport, is located. Therefore, the court determined that the question of UM/UIM coverage was to be determined under Indiana law. It further held that under Indiana law, an insurer must offer UM coverage in limits equal to the limits of liability for bodily injury under the policy. ISOP never offered those limits and, as a result, its election of lower limits was ineffective. The court ruled that Randolph, therefore, was entitled to UM/UIM coverage with limits equal to the liability limit, one million dollars, by operation of law. ISOP filed its timely notice of appeal on July 26, 1999. Randolph filed a cross notice of appeal on July 28, 1999. {¶ 7} Each party raises one assignment of error in its brief. Because the determination of Randolph's assignment of error affects the resolution of ISOP's assignment of error, we will address it first. Randolph's assignment of error states: {¶ 8} "IT WAS ERROR FOR THE COURT TO HOLD THAT INDIANA LAW APPLIED TO THIS CASE." {¶ 9} Although the trial court did not specify whether it entered its judgment on Randolph's declaratory judgment action or ISOP's summary judgment motion, it appears that its ruling was a declaratory judgment. The trial court ruled that Indiana law applied to the case and that Randolph was entitled to UM/UIM coverage with limits of $1 million dollars. Thus, since both of the issues in this case are questions of law, we will review the case de novo. Nationwide Mut. Fire Ins. Co. v.Guman Bros. Farm (1995), 73 Ohio St.3d 107, 108; Ohio Bell Tel. Co. v.Pub. Util. Com. (1992), 64 Ohio St.3d 145, 147. {¶ 10} Randolph argues that the trial court should have applied Ohio law, not Indiana law, to the case at bar. He contends that the court should apply a balancing test to determine which state bears the most significant relationship to the Policy. Randolph alleges that Ohio has the most significant relationship to the Policy for several reasons. First, the Policy was not made or negotiated in any one state. Second, the performance of the Policy was not limited to any one state. Third, Combined Transport operates more terminals in Ohio than in any other state. Fourth, Ohio law provides that any insurance policy issued with respect to vehicles registered or principally garaged in the state must comply with Ohio UM/UIM laws. Citing, R.C. 3937.18(A). Finally, Randolph contends that the Policy itself recognizes that the law of the state in which an insured's vehicle is registered governs the issue of UM/UIM coverage for that vehicle. {¶ 11} Randolph is correct in stating that we must utilize a balancing test to determine whether Ohio or Indiana law applies. The legal basis for recovery under the UM/UIM coverage of an insurance policy is a contract action. Jordan v. State Farm Mut. Auto Ins. Co. (2001),141 Ohio App.3d 670, 674. The claim seeks to determine the insured's contractual right against the insurer. Wilson v. Nationwide Ins. Co. (Nov. 20, 1997), 8th Dist. No. 71734. The law of the state chosen by the parties to a contract will govern their contractual rights and duties.Ohayon v. Safeco Ins. Co. of Illinois (2001), 91 Ohio St.3d 474, 477. However, when the parties have not chosen the law to govern their contract, we must apply certain factors to determine which state's law has "`the most significant relationship to the transaction and the parties.'" Id., quoting 1 Restatement of the Law 2d, Conflict of Laws (1971) 575, Section 188(1). In deciding choice-of-law questions involving insurance contracts, the court must consider the following factors: (1) the place of contracting; (2) the place of contract negotiations; (3) the place of performance; (4) the location of the subject matter of the contract; and (5) the domicile, residence, nationality, place of incorporation and place of business of the parties. Id. at 477; Restatement at 575, Section 188(2). {¶ 12} The Policy does not specify which state's law applies to it. The section Randolph references is merely a definition section and only applies to "Owned" "autos." Under the terms of the Policy, Randolph's tractor-trailer is a "Hired" "auto." Applying the choice-of-law test, it is clear that Indiana law applies to the case at bar. First, ISOP issued the Policy to Combined Transport, an Indiana corporation. Second, there is no evidence of where the contract negotiations took place. As to the third and fourth factors, it is unclear as to where the place of performance and the location of subject matter of the Policy are located. The Policy covers vehicles in at least 12 different states, including Indiana, and the vehicles are constantly on the move. Thus, there is no principal location of the insured risk. See, Restatement at 610, Section 193, Comment a. Finally, Combined Transport is an Indiana corporation with its principal place of business in Indiana and ISOP is a Pennsylvania corporation. Although several of the factors are inconclusive, we cannot say that Ohio, or any other state, has a more significant relationship to the Policy than Indiana. {¶ 13} Thus, the trial court was correct in ruling that Indiana law applies to the case sub judice. Randolph's assignment of error is without merit. {¶ 14} We next turn to ISOP's single assignment of error, which states: {¶ 15} "THE TRIAL COURT INCORRECTLY CONCLUDED THAT PLAINTIFFS WERE ENTITLED TO UNDERINSURED MOTORIST COVERAGE WHEN UNDERINSURED MOTORIST COVERAGE HAD BEEN VALIDLY REJECTED PRIOR TO THE INCIDENT GIVING RISE TO PLAINTIFFS' CLAIMS." {¶ 16} ISOP argues that under Indiana law, Combined Transport properly limited its UM/UIM coverage. It claims that the trial court improperly concluded that it did not offer Combined Transport UM/UIM coverage in an amount equal to the Policy's liability limits. ISOP points out that when Combined Transport submitted its insurance application, it indicated that it wished to purchase UM/UIM coverage in the amount of the "statutory limits." ISOP also points out that after it issued Combined Transport the Policy, Combined Transport executed a coverage election form that specified that it was selecting the minimum limits. {¶ 17} Section 27-7-5-2 of the Indiana Code provides in pertinent part: {¶ 18} "(a) The insurer shall make available, in each automobile liability or motor vehicle liability policy of insurance which is delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person and for injury to or destruction of property to others arising from the ownership, maintenance, or use of a motor vehicle, or in a supplement to such a policy, the following types of coverage: {¶ 19} "(1) In limits for bodily injury or death and for injury to or destruction of property not less than those set forth in IC 9-25-4-5 * * * for the protection of persons insured under the policy who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury * * * resulting therefrom; or {¶ 20} "(2) In limits for bodily injury or death not less than those set forth in IC 9-25-4-5 * * * for the protection of persons insured under the policy provisions who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury * * * resulting therefrom. {¶ 21} "The uninsured and underinsured motorist coverages must be provided by insurers for either a single premium or for separate premiums, in limits at least equal to the limits of liability specified in the bodily injury liability provisions of an insured's policy, unless such coverages have been rejected in writing by the insured. * * *. {¶ 22} "(b) The named insured of an automobile or motor vehicle liability policy has the right, in writing, to: {¶ 23} "(1) Reject both the uninsured motorist coverage and the underinsured motorist coverage provided for in this section; or {¶ 24} "(2) Reject either the uninsured motorist coverage alone or the underinsured motorist coverage alone, if the insurer provides the coverage not rejected separately from the coverage rejected." {¶ 25} Section 27-7-5-2(a) provides that an insurer must make the coverage as set out in subsections (1) or (2) available in every motor vehicle liability policy in Indiana that insures motor vehicles registered or garaged in Indiana. The Policy at issue insures motor vehicles that are registered and garaged in Indiana, as Combined Transport has approximately six terminals in Indiana. The Policy also insures vehicles that are registered and garaged in Ohio. The fact that the Policy insures vehicles in Ohio does not take away the fact that it is a policy that insures vehicles registered and garaged in Indiana. Thus, Section 27-7-5-2 applies to the Policy. {¶ 26} We find support for this interpretation of Section 27-7-5-2 in the Indiana case of West Bend v. Keaton (Ind.App. 2001), 755 N.E.2d 652. In Keaton, the plaintiff lived in Illinois but was a partner in an Indiana business. The plaintiff's partnership purchased an Indiana commercial insurance policy from the defendant. The plaintiff leased a Porsche in Illinois, which was registered and garaged in Illinois. The plaintiff also leased a Toyota in Illinois, which was registered in Illinois; however, the Toyota was garaged in Indiana. While driving the Porsche in Indiana, an uninsured driver struck the plaintiff's Porsche. He filed a claim against the defendant insurance company alleging that he was injured in an accident with an uninsured driver, that he was insured by the defendant and that he was entitled to collect damages that he could not recover from the uninsured driver. The trial court awarded summary judgment to the plaintiff. On appeal, the defendant contested the trial court's finding that the policy was issued with respect to a motor vehicle principally garaged in Indiana, thereby triggering the requirements of Section 27-7-5-2. {¶ 27} The court noted that Indiana maintains the view that because the UM/UIM statute is remedial in nature, it must be liberally construed in favor of the insured. Id. at 655. It also pointed out that "`Persons defined as "insureds" under the liability section of an insurance policy are those for whom the legislature intended uninsured motorist benefits.'" Id. The court found that the policy covered the plaintiff's Porsche. It reasoned: {¶ 28} "Here, the undisputed facts are that Keaton was an insured under the Policy, and the Policy provided automobile liability coverage for any automobile leased by Keaton, regardless of where it was registered or garaged. Considering that Keaton purchased an Indiana policy for his Indiana business, there was every reason to anticipate coverage of an Indiana vehicle. Indeed, one such leased vehicle was garaged in Indiana for a period of time. The fact that Keaton chose to lease in Illinois did not negate the Policy's potential coverage. West Bend's analysis presupposes that Keaton, and the other insureds under the Policy, never intended to lease or garage an Indiana automobile, and that West Bend wrote the Policy with that intention in mind." Id. {¶ 29} Thus, the court held that the defendant was required to offer UM coverage as part of the Policy. {¶ 30} The case at bar is substantially similar to Keaton. Randolph was an "insured" under the policy. The Policy defines "insured" as, among other things, "Anyone else while using with your permission a covered `auto' you own, hire or borrow * * *." Randolph was working when the accident occurred. He was also driving his truck, which he leased to Combined Transport. Thus, his truck was a covered "auto" for liability purposes because the policy provided liability coverage for any "autos." The Policy makes no limitation for liability coverage on where the covered autos must be registered or garaged. The Policy appears to cover other vehicles that are registered and/or garaged in Indiana, as Combined Transport has approximately six terminals in Indiana. Therefore, Section 27-7-5-2 applies to Randolph and the Policy. {¶ 31} A case from the Indiana Supreme Court also demonstrates the attitude the Indiana courts and legislature have taken regarding the UM/UIM statute. In United Nat'l Ins. Co. v. DePrizio (Ind. 1999),705 N.E.2d 455, 461 the court explained: {¶ 32} "In the years since its inception, Indiana's uninsured/underinsured motorist statute has undergone significant modification. It began requiring insurers to offer uninsured and underinsured coverage. It later mandated insurers to provide this coverage. And, central to our inquiry, the law has moved from imposing limits on such coverage to allowing full recovery. We find that this history of expanding the availability of uninsured and underinsured motorist coverage manifests an intent by our legislature to give insureds the opportunity for full compensation for injuries inflicted by financially irresponsible motorists." {¶ 33} Since Section 27-7-5-2 applies to the Policy, we must next determine if ISOP complied with the statute's provisions. Section 27-7-5-2 specifically requires the insurer to provide UM/UIM limits that are at least equal to the liability limits specified in the bodily injury liability provision of the policy. An insurer may provide UM/UIM coverage with limits lower than the liability limits as long as it offers the full limits. Marshall v. Universal Underwriters Ins. Co. (Ind.App. 1996),673 N.E.2d 513, 516. No evidence on the record exists to demonstrate that ISOP made an offer to Combined Transport of UM/UIM coverage with limits equal to that of the liability limits. Neither the application, the Policy itself, nor the Coverage Election Form even reference the law or the statutory limits required to be offered. (Plaintiff's Exhibits 2 and 3). The parties stipulated that no other documents are pertinent to the application or insurance coverage. The election form signed over three months after the Policy took effect states, in pertinent part: {¶ 34} "I/WE ELECT UNINSURED AND UNDERINSURED MOTORISTS COVERAGES WITH A LIMIT OF $25,000 EACH PERSON AND A LIMIT OF $50,000 EACH ACCIDENT AND A PROPERTY DAMAGE LIMIT OF $10,000 PER PERSON AND REJECT ALL OTHER COVERAGES AND LIMIT OPTIONS." {¶ 35} Nowhere does the form indicate that ISOP ever offered Combined Transport UM/UIM coverage in amounts equal to its liability coverage. It is axiomatic that without a valid offer, there can be no valid rejection. The election of lower limits standing alone does not establish a valid rejection of the higher limits. The insured must affirmatively indicate in writing that it is its choice not to accept the full limits of UM/UIM coverage. Marshall, 673 N.E.2d at 516. Additionally, the UM/UIM statute requires "an offer, not mere accessibility to coverage." State Auto Ins. Co. v. Shannon (Ind.App. 2002), 769 N.E.2d 228. {¶ 36} Thus, since ISOP never made a valid offer, the election of the lower limits is invalid and Randolph has UM/UIM coverage by operation of law up to the limits of the Policy's bodily injury liability limits, or one million dollars. {¶ 37} Additionally, even if Combined Transport's election of lower limits was valid, Randolph would still be entitled to UM/UIM coverage by operation of law. The Declarations page of the Policy provides that Combined Transport only purchased UM/UIM coverage of 25,000/50,000/10,000 for "Owned" "autos." The Policy defines "Owned" "autos" as only those autos that Combined Transport owns. (Policy, p. 6). Randolph's tractor-trailer was a "Hired" "auto" under the terms of the Policy. A "Hired" "auto" is one that Combined Transport leases, hires, borrows, or rents. (Policy, p. 6). The Policy does not provide for any UM/UIM coverage for "Hired" "autos." However, the Policy does provide liability coverage with a one million dollar limit for any "autos," which includes Randolph's tractor-trailer. There is no evidence on the record that ISOP ever offered Combined Transport UM/UIM coverage for the "Hired" "autos" for which it provided liability coverage. Thus, ISOP failed to comply with the mandates of Section 27-7-5-2. {¶ 38} Accordingly, the trial court was correct in holding that Randolph is entitled to UM/UIM coverage by operation of law with limits of one million dollars. ISOP's sole assignment of error is without merit. {¶ 39} For the reasons stated above, the decision of the trial court is hereby affirmed. Waite, J., concurs in judgment only. DeGenaro, J., concurs in part and dissents in part; see concurring in part and dissenting in part opinion.

2016-07-06 06:36:06.772987+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellant Unemployment Compensation Review Commission ("Review Commission") has appealed from a decision of the Lorain County Court of Common Pleas that reversed and remanded the Review Commission's dismissal of Appellee Lorain County Auditor's ("Auditor") unemployment benefit's appeal. This Court reverses and remands. I {¶ 2} In May of 2003, Gail Cifranic ("Cifranic") was terminated from her position with the Lorain County Tuberculosis Clinic ("Clinic"). Cifranic applied for and was awarded unemployment benefits. On behalf of the Clinic, Auditor appealed the unemployment award arguing that Cifranic was terminated for cause and was therefore not entitled to unemployment benefits. The Review Commission scheduled a telephonic hearing for January 6, 2003 at 7:00 p.m. and all parties were notified. Counsel for Auditor failed to appear at the hearing.1 {¶ 3} On January 7, 2003, due to Auditor's failure to appear at the hearing, the Review Commission dismissed Auditor's appeal. Also, on January 7, 2003, counsel for Auditor informed the Review Commission that he failed to appear at the hearing because he forgot about the hearing. He stated that because the hearing was scheduled for after working hours and he had forgotten about the hearing he did not have the file with him. Auditor's counsel further stated that he could not gain access to his locked government office in time for the hearing because he forgot the pass code to enter the building. The Review Commission scheduled a hearing for June 2, 2003 to determine if Auditor could establish the requisite "good cause" for failing to appear at the hearing and therefore, have its appeal reinstated. {¶ 4} In a decision mailed on June 18, 2003, the Review Commission made the following findings of fact: "The representative for the Lorain County Auditor testified that he was not able to attend the January 6, 2003, telephone hearing because he left the file in his office at the end of the business day. Furthermore, his office is locked after hours and he was unable to retrieve the file in time to call the Review Commission for his evening telephone hearing." After citing the "Issue" as "[h]as [Auditor] shown good cause for failing to appear at the scheduled hearing?," the Review Commission quoted R.C. 4141.28 (J)(2), which stated: "If the party appealing fails to appear at the hearing, the hearing officer shall dismiss the appeal, provided that the hearing officer or commission shall vacate the dismissal upon a showing that * * * good cause for the failure to appear is shown to the commission within fourteen days after the hearing date."2 In the "Reasoning" section of the Review Commission's decision, it stated that "[t]he Ohio Unemployment Compensation Law does not define the term `good cause'" and in determining whether Auditor had established "good cause" it "applied a reasonable person standard." The Review Commission concluded "that [Auditor] ha[d] not shown good cause for failing to appear at the scheduled hearing" and denied Auditor's request to reinstate its appeal. {¶ 5} On June 30, 2003, Auditor appealed the Review Commission's decision. On November 20, 2003, the Lorain County Court of Common Pleas found that the Review Commission's dismissal was unlawful, unreasonable, and against the manifest weight of the evidence. The trial court reversed the decision of the Review Commission, and remanded the case back to the Review Commission with instructions that Cifranic's unemployment benefit status be determined on the merits. On December 18, 2003, the Review Commission timely appealed the trial court's decision asserting one assignment of error. II Assignment of Error Number One "Forgetting to appear at a hearing is not good cause for reinstating an appeal challenging an unemployment benefits award where the ohio supreme court has defined good cause as an unforeseen or changed circumstance and the forgetfulness is not due to any issue outside appellant's control." {¶ 6} In its sole assignment of error, the Review Commission has argued that the trial court erred when it reversed the Review Commission because when an appealing party fails to appear at a hearing the Review Commission must dismiss the appeal unless "good cause" is shown. Specifically, the Review Commission has asserted that forgetting to appear at a hearing is not "good cause" to reinstate an appeal. We agree. {¶ 7} When reviewing a determination by the Review Commission the common pleas court applies a statutorily mandated standard of review. Pursuant to R.C. 4141.282(H): "The court shall hear the appeal upon receipt of the certified record provided by the commission. If the court finds that thedecision of the commission was unlawful, unreasonable, or againstthe manifest weight of the evidence, it shall reverse, vacate, or modify the decision, or remand the matter to the commission. Otherwise, the court shall affirm the decision of the commission." R.C. 4141.282(H) (emphasis added). {¶ 8} This Court utilizes the same standard when reviewing the decision of the trial court. Tzangas, Plakas Mannos v.Ohio Bur. of Emp. Serv. (1995), 73 Ohio St. 3d 694, 696-697. Thus, this Court focuses on the decision of the Review Commission, rather than that of the common pleas court. Barillav. Ohio Dept. of Job Family Servs., 9th Dist. No. 02CA008012, 2002-Ohio-5425, at ¶ 6, citing Tenny v. Oberlin College (Dec. 27, 2000), 9th Dist. No. 00CA007661, at 3. While this Court cannot make factual findings or determine the credibility of witnesses, we do have the duty to determine whether the Review Commission's decision is supported by the evidence in the record.Tzangas, 73 Ohio St.3d at 696, citing Irvine v. UnemploymentCompensation Bd. of Review (1985), 19 Ohio St. 3d 15, 17. If such evidence is found, then the Court cannot substitute its judgment for that of the Review Commission. Roberts v. Hayes, 9th Dist. No. 21550, 2003-Ohio-5903, at ¶ 12 (citations omitted). {¶ 9} Applying the same standard at each appellate level does not result in a de novo standard of review. Tzangas,73 Ohio St.3d at 697. "The fact that reasonable minds might reach different conclusions is not a basis for the reversal of the board's decision." Irvine, 19 Ohio St.3d at 18. Rather, a reviewing court may reverse the Review Commission's determination only if it is unlawful, unreasonable, or against the manifest weight of the evidence. Tzangas 73 Ohio St.3d at 697. Further, "[e]very reasonable presumption must be made in favor of the [decision] and the findings of fact [of the Review Commission]." Karches v. Cincinnati (1988), 38 Ohio St. 3d 12,19. {¶ 10} The Review Commission has asserted that the dismissal of Auditor's appeal is mandatory because Auditor failed to appear at the hearing and Auditor failed to show "good cause" for its absence. Pursuant to R.C. 4141.281(D)(5), "[f]or hearings at either the hearing officer or review level, if the appealing party fails to appear at the hearing, the hearing officer shall dismiss the appeal." R.C. 4141.281(D)(5). But, "[t]he commission shall vacate the dismissal * * * [if] good cause for the appellant's failure to appear is shown to the commission within fourteen days after the hearing date." Id. Accordingly, unless an appellant establishes "good cause" for failing to appear at the hearing, the appeal will not be reinstated. {¶ 11} While "good cause" is not defined under Ohio Unemployment Compensation Law, the Ohio Supreme Court has dealt with the term in workers compensation cases. In Hawkins v.Indus. Comm. of Ohio, the Ohio Supreme Court found that "good cause" for a change of payment request can be established through unforeseen or changed circumstances. State ex rel. Hawkins v.Indus. Comm. of Ohio, 100 Ohio St. 3d 21, 2003-Ohio-4765, at ¶ 7. While Hawkins does not involve "good cause" for failing to appear at a hearing, this Court finds the Ohio Supreme Court's standard provides direction in our review of the case sub judice. {¶ 12} Since this Court has not previously addressed "good cause" under R.C. 4141.281(D)(5), we look to other appellate treatment of the issue. The Tenth Appellate District in Franklin County has issued several opinions dealing with R.C.4141.281(D)(5) finding that "good cause" can be established by the appealing party demonstrating a lack of culpability for their failure to appear. See Payton v. Bd. of Rev. (June 5, 1997), 10th Dist. No. 96APE09-1266, 1997 Ohio App. LEXIS 2423; Waltonv. Ohio State Bur. of Emp. Servs. (Feb. 21, 2002), 10th Dist. No. 01AP-779, 2002 Ohio App. LEXIS 722. For example, the Tenth District affirmed a finding of "good cause" when a party failed to appear at a board hearing due to unanticipated treatment for health problems. Furtado v. Getsay (Feb. 18, 1993), 10th Dist. No. 92AP-1119, 1993 Ohio App. LEXIS 1099. On the other hand, the Tenth District determined that "good cause" for failing to appear at a hearing could not be established when a party was unfamiliar with an area and was unable to find the location of the hearing in time to appear, when a party partially relied on advice from an Ohio Board of Employment Services employee and made a conscious decision not to attend the hearing, or when a party failed to read all relevant directions on how to appear at the hearing. See Payton, supra; Altizer v. Bd. of Rev., O.B.E.S. (Mar. 12, 1996), 10th Dist. No. 95APE10-1310, 1996 Ohio App. LEXIS 951; Arn v. Leibold (June 17, 1993), 10th Dist. No. 93AP-394, 1993 Ohio App. LEXIS 3114. {¶ 13} When reviewing the Review Commission's appeal that Auditor failed to establish "good cause," this Court must focus on the decision of the Review Commission and decide whether its decision was unlawful, unreasonable, or against the manifest weight of the evidence. See Tzangas, supra. {¶ 14} A review of the record reveals that the day after the hearing, January 7, 2003, Auditor telephoned the Review Commission and explained why it did not appear at the hearing. A telephonic hearing was scheduled for June 2, 2003 to resolve the issue. A hearing officer for the Review Commission, counsel for Auditor, and Cifranic participated in the hearing. When asked by the hearing officer why he failed to appear at the January 6, 2003 hearing, Auditor's counsel testified: "I left the file at my office. And I came home from work, I went to the gym and I pulled in my driveway about ten to 7:00 and and [sic] I remembered I had a hearing at 7:00 o'clock. The building is opened by a keyless entry system with putting your palm on a machine and squeezing your fingers up against sensors. I have access to the building, but the code is in my office. We went to the keyless entry system about eight or ten years ago. I've been into the building after hours twice since that system was installed, once on a Saturday when I took my number with me and the other time [* * *] I had to call another attorney because I didn't have my number to get in. So by the time I realized when and I remembered the hearing, I didn't have time to try to round up somebody to let me get into the building and get my file and communicate with the Review Commission." {¶ 15} Counsel for Auditor argued that he had established "good cause" because he made an honest mistake and that his client should not be punished for his mistake. Arguing that Auditor had not established "good cause," Cifranic stated: "[Counsel for Auditor] said that at ten to 7:00 he drove into his driveway after he had gone to the gym. My husband was in critical condition at the time that this hearing took place. I left my work or my place of employment, drove straight home without going to the hospital to see my husband, although he was on the critical list in ICU at EMH, which can be verified, and I, you know, checked in. We were supposed to have checked in 15 minutes before the hearing. The hearing was at 7:00." {¶ 16} After hearing from Auditor and Cifranic, the hearing officer explained that the hearing was concluded and that she would notify the parties of her decision. {¶ 17} This Court finds that the decision of the Review Commission was not unlawful, unreasonable, or against the manifest weight of the evidence. We find that the Review Commission's decision that Auditor had not established "good cause" for failing to appear at the hearing was supported by evidence in the record. {¶ 18} This Court agrees with the previously discussed Tenth Appellate District's standard of "good cause." See Payton, supra; Walton, supra; Furtado, supra; Altizer, supra;Arn, supra. "Good cause" for failing to appear at a hearing under R.C. 4141.281(D)(5) requires a lack of culpability on the part of the appealing party. Further, lack of culpability is consistent with the Ohio Supreme Court's determination in workers compensation cases that "good cause" can be established through unforeseen or changed circumstances. The evidence before the Review Commission clearly fails to constitute "good cause." Counsel for Auditor testified that he not only forgot about the hearing, but when he did remember he did not have the file and he could not retrieve the file because he forgot the code to enter his locked office building. Counsel for Auditor testified that his office building has had the same security system for eight to ten years and he has had problems in the past remembering the code. It is not clear from his testimony exactly how the security system works because he testified that he needed the code to enter the building, but then he also testified that to enter the building you "pu[t] your palm on a machine and squeez[e] your fingers up against sensors." Counsel for Auditor testified that one time when he forgot the code he called another attorney to assist him, but that this time he did not call anyone. {¶ 19} While this Court cannot make factual determinations or judge credibility, the record contains no evidence that Auditor's failure to appear at the hearing was the fault of anyone else besides Auditor's counsel. Furthermore, the record contains no evidence that Auditor's failure to appear at the hearing was due to unforeseen or changed circumstance; counsel for Auditor failed to appear because he initially forgot about the hearing and because, for the third time, he forgot the code to an eight to ten year old security system. The Review Commission heard the testimony and determined "good cause" had not been established. This Court finds such a decision was supported by the evidence. {¶ 20} This Court is not persuaded by Auditor's argument to apply the "excusable neglect" standard of Civ.R. 60(B). The applicable statute requires "good cause" not "excusable neglect." This Court declines to change the standard set forth by the legislature. Further, lessening the statutory requirement for "good cause" to include forgetfulness risks creating a slippery slope. If an individual party, like Cifranic, forgot about a hearing, would that constitute "good cause," or would only the forgetfulness of a party's busy attorney constitute "good cause?" What evidence would one have to produce to prove he actually "forgot" and attempted to appear at the hearing? How many chances should one have to remember a hearing date? This Court is bound by the statutory requirement of "good cause" and will not open the door to poor case management. {¶ 21} Based on the foregoing, this Court finds that the Review Commission's decision was not unlawful, unreasonable, or against the manifest weight of the evidence. Therefore, the Review Commission's assignment of error is well taken. III {¶ 22} The Review Commission's assignment of error is sustained. The judgment of the trial court is reversed and the cause remanded to the trial court for proceedings consistent with this opinion. Judgment reversed and cause remanded. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellees. Exceptions. Slaby, J., concurs. 1 To appear at a telephonic hearing requires each party to call the Review Commission and the hearing is conducted over a three-way recorded telephone call. 2 Although not brought to the attention of this Court by either party or the trial court, this Court recognizes that R.C.4141.28(J)(2) was in effect until October 30, 2001 and that the hearing at issue was held on June 2, 2003. Such a fact would normally lead to issues of statutory misapplication. However, this Court finds that R.C. 4141.281(D)(5), the applicable statute, uses the same language and requires the same action as R.C. 4141.28(J)(2). Accordingly, the Review Commission's quotation of an improper statute is harmless.

2016-07-06 06:36:06.820589+00

DECISION AND JUDGMENT ENTRY This appeal comes to us from a judgment issued by the Lucas County Court of Common Pleas, Domestic Relations Division, denying appellant's Civ.R. 60(B) request for relief from judgment. Because we conclude that the trial court did not abuse its discretion, we affirm. In July 1997, appellant, Amie Najarian and appellee, Charles Kreutz, were granted a divorce. The parties' property was divided pursuant to an agreed settlement. Against the advice of her counsel, appellant acknowledged in open court her acceptance of the settlement agreement in which appellee received the bulk of the marital assets. Those assets were real estate, stocks, retirement accounts and other property, including the couple's pizza restaurant business which was not valued. Appellant received her own retirement accounts and $5,000 in cash. After the divorce, appellant and appellee continued to have amicable contact with each other. Appellee bought appellant a $24,000 Jeep vehicle and transferred ownership of one of the rental homes to her. Appellant would often work in the pizza restaurant without pay. In December, 1997, appellant became upset when she arrived at appellee's residence at the same time as his former high school girlfriend. Subsequently, appellant wanted appellee to reopen the settlement agreement as to the marital property; appellee refused. In July 1998, appellant moved the trial court to vacate the divorce decree pursuant to Civ.R. 60(B). Appellant based her motion upon allegations that, due to depression and duress resulting from death threats made by appellee at the time of the divorce, she was emotionally unstable and unable to make appropriate judgments. Appellant also argued that the agreement was grossly inequitable on its face and it should be set aside. The following evidence and testimony was presented at the Civ.R. 60(B)hearing. Appellant admitted that she and appellee had not disclosed all of their assets to the court at the time of the final hearing. Appellant said that she and appellee had skimmed money over the years from the pizza business. She claimed that this money had originally been kept in bank safe deposit boxes, but was brought home when appellee feared an audit. The parties allegedly counted and banded the money. They then sealed it in plastic bags, which were then put into five gallon buckets with lids. Some of the buckets were put in the crawl space of the home and some were buried in the yard. According to appellant, there was at least $1,000,000 in cash. Appellant stated that the couple also failed to disclose gold, platinum and silver bullion, as well as investment grade coins — all had been purchased with cash. Appellant said that she had not disclosed these assets because she feared appellee would kill her if she did. According to appellant, appellee threatened her by saying that he knew people that would "take care of her" for $100. She also stated that she feared disclosing the existence of the money because it would cause her to be in trouble with the Internal Revenue Service ("IRS").1 Appellant further acknowledged that, prior to the final hearing, she took the hidden gold and platinum bullion. Appellant testified that for many years she had suffered from and was treated for depression. She said that, during the divorce proceedings, her condition worsened and she took medication that may have made her confused. Appellant stated that she never told her psychiatrist or her divorce attorney about appellee's threats or the hidden assets. At the time of the final hearing, she said she was frightened, but had become stronger since the divorce and was now able to confront him. She also admitted being upset by encountering the girlfriend, but denied the legal action was motivated by a desire for revenge against appellee. Appellant also stated that she had reported the facts to the IRS and "made a deal" regarding the alleged skimmed money. She denied, however, that the report was made in retaliation for appellee's failure to renegotiate the settlement with her. Appellant's mother and a female cousin also testified. The mother said that she understood that the couple had money or other valuables in the home, but was unaware of the value. She also testified that appellant had told her about appellee's death threats and other intimidating behavior. Appellant's mother said that during the divorce, her daughter was sleep deprived and depressed. In her opinion, her daughter was unable to exercise competent, independent judgment. The cousin stated that appellant looked physically ill, with bags under her eyes and complaints of body aches and insomnia. The cousin described appellant as emotionally unstable during the week of the final divorce hearing. The cousin also related that the couple used cash for most transactions and that, when she worked at the pizza business, she witnessed the parties skimming money from the gross profits. The deposition of appellant's psychiatrist, Dr. George R. Williams, was admitted by stipulation. Dr. Williams testified that he had been treating appellant since 1993 for major depression. After she began taking prescribed antidepressants, Dr. Williams stated that appellant's depression improved. When appellee asked appellant for a divorce in September 1995, the doctor observed appellant's depression worsening. Nevertheless, the week before the final hearing, appellant told her doctor that she was feeling better and that the parties had come to an agreement. She stated to Dr. Williams that the money did not matter and that her "heart comes first." Dr. Williams said that appellant did not disclose to him the full value of the assets or the specific agreement terms. The doctor also stated that appellant had never told him that appellee verbally abused her or had ever threatened to kill her. Appellant also never disclosed any information about the hidden assets. The doctor expressed surprise that appellant had not told him about the alleged ill treatment by appellee. Given the new information regarding the amounts of the assets being given up and the alleged threats, he opined that appellant's ability to make sound judgments would have been significantly influenced. The parties stipulated that the pizza business was worth between $600,000 and $1,500,000. Appellee admitted that some assets had not been disclosed to the court at the time of the divorce proceedings. He acknowledged that the parties' had skimmed some money from the business over the years, but denied that he had a million dollars hidden in buckets in the crawl space or buried elsewhere. Appellee also denied threatening or intimidating appellant. He did, however, acknowledge giving appellant the vehicle and real estate after the divorce. The trial court ultimately denied the motion to vacate, essentially determining that appellant had not presented sufficient evidence to establish one of the criteria required under Civ.R. 60(B). The trial court found that appellant was not mentally incompetent, that she understood the nature of the agreement and that she knew of all the hidden assets but failed to disclose them. The court further determined that the evidence presented as to appellee's alleged death threats and intimidation was too vague and uncertain as to time and proximity to the divorce proceedings to establish that appellant was unduly influenced as to the settlement agreement. Appellant now appeals that judgment, setting forth the following two assignments of error: "I. IT WAS ERROR FOR THE TRIAL COURT TO DENY PLAINTIFF/APPELLANT'S MOTION FROM RELIEF FROM JUDGMENT PURSUANT TO RULE 60(B)(3). "II. IT WAS ERROR FOR THE TRIAL COURT TO DENY PLAINTIFF/APPELLANT RELIEF FROM JUDGMENT PURSUANT TO RULE 60(B)(5)." We will address appellant's two assignments of error together. It is well-settled that in order to prevail on a motion for relief from judgment pursuant to Civ.R. 60(B), the movant must demonstrate: (1) a meritorious claim or defense if relief is granted, (2) entitlement to the relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and (3) timeliness of the motion. GTE Automatic Elec., Inc. v. ARCIndustries, Inc. (1976), 47 Ohio St. 2d 146, paragraph two of the syllabus. The decision to grant or deny a motion for relief from judgment is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Griffey v. Rajan (1987),33 Ohio St. 3d 75, 77. An abuse of discretion connotes more than an error of law or of judgment; it implies that the trial court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. In this case, appellant filed her motion within the one year time limit and set forth a potentially meritorious claim. Thus, the only real issue in dispute is whether or not the evidence presented established one of the grounds required for relief pursuant to Civ.R. 60(B). Civ.R. 60(B)(3) and (5) set forth the following grounds for relief from judgment: "(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; * * * or (5) any other reason justifying relief from the judgment." Where the parties to a divorce or separation enter into settlement through an agreed judgment entry, the law of contract applies. Dubinskyv. Dubinsky (Mar. 9, 1995), Cuyahoga App. No. 66439, 66440, unreported. Contracts, including settlement agreements, do not have to be fair and equitable to be binding and enforceable, so long as they are not procured by fraud, duress, overreaching or undue influence. Walther v. Walther (1995), 102 Ohio App. 3d 378, 383. See, also, Mack v. Polson Rubber Co. (1984), 14 Ohio St. 3d 34. A separation agreement has been found to be unenforceable where a wife was afraid because of her husband's continuous threats to humiliate and kill her. See Young v. Young (1982),8 Ohio App. 3d 52. In Walther, however, the court noted that: "Neither a change of heart nor poor legal advice is a ground to set aside a settlement agreement. A party may not unilaterally repudiate a binding settlement agreement." Walther, supra, at 383; citing to Spercel v. Sterling Industries, Inc. (1972), 31 Ohio St. 2d 36. Our review of the record in this case reveals that appellant has fallen short of proving that she was unduly influenced or fraudulently induced to sign the settlement agreement so as to meet the requirement for Civ.R. 60(B)(3). Although the evidence shows that she may have been suffering from depression and may have been motivated by the desire to end the proceedings, we cannot say that she was so overwhelmed or depressed that it prevented her understanding the nature of what she was doing. The doctor stated that the medication she was taking would not have caused any confusion, but rather would have improved her condition. Despite the alleged stress, she was well aware of the hidden assets, the potential for profit from the business, and was given several opportunities to renegotiate the terms of the agreement. Likewise, we cannot say that the record shows that appellant acted under duress in response to appellee's alleged threats and intimidation. While we do not dismiss the possibility that such threats may have occurred, the evidence was simply insufficient to show that such actions presently influenced appellant or that she had no other choice but to sign the agreement. Therefore, we cannot say that the trial court's determination as to the fraud or duress claims was an abuse of its discretion. As to the Civ.R. 60(B)(5) argument, appellant contends that the judgment should be vacated because the agreement was inequitable on its face. The record, however, strongly supports the fact that appellant signed the agreement to relieve the stress caused by the divorce proceedings and to end an unhappy marriage. Later, especially after the appearance of appellee's former girlfriend, appellant had a change of heart and decided that she had made a mistake. Nevertheless, nothing in the record shows that appellant did not voluntarily enter into the settlement at the time of the final hearing in July 1997. While appellee may have acquired the bulk of the assets under the terms of the agreement, inequity alone in a settlement agreement is not automatic grounds for relief under Civ.R 60(B)(5). Parties agree to settle in divorce cases based on a variety of reasons, sometimes unknown even to their counsel. In fact, the evidence shows that, at the time of the final hearing, appellant made the decision to forfeit money and assets in order to preserve "her heart." Therefore, we cannot say that the trial court abused its discretion in denying appellant's motion for relief from judgment. Accordingly, appellant's two assignments of error are not well-taken. The judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, is affirmed. Court costs of this appeal are assessed to appellant. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. James R. Sherck, J., Peter M. Handwork, J. and Melvin L. Resnick, J. CONCUR. 1 Appellant, at the Civ.R. 60(B) hearing, announced that she was not seeking any interest in the money "skimmed" from the pizza operation and not disclosed in the divorce. Rather, appellant seeks a redistribution of the assets which the court already decided.

2016-07-06 06:36:06.910841+00

DECISION AND JUDGMENT ENTRY {¶ 1} James Eldridge appeals from his conviction on a charge of felony driving under the influence of alcohol, arguing that the trial court erred in denying his motion to dismiss the indictment. He contends the trial court erred in denying his motion because the state failed to bring him to trial within two hundred seventy days, as required by R.C.2945.71(C)(2). Because Eldridge absconded after posting bond and the state did not hold him solely on the pending charge for most of the time after his re-arrest, the court did not err in denying his motion. {¶ 2} On March 26, 2000, the Ohio State Highway Patrol arrested Eldridge for felony driving under the influence of alcohol (DUI). At the same time, the state filed charges against Eldridge in municipal court for driving under suspension, a first-degree misdemeanor, and driving left of center, a minor misdemeanor. All of the charges against Eldridge resulted from the same occurrence on March 26, 2000. On March 30, 2000, Eldridge posted $5,000 surety bond and the state released him. On April 3, 2000, Eldridge appeared for an arraignment in the Scioto County Municipal Court. There, Eldridge waived his right to a preliminary hearing and the municipal court continued the bond on him "for the appearance in the Scioto County Court of Common Pleas for trial pursuant to indictment by the Scioto County Grand Jury." {¶ 3} On May 26, 2000, the Scioto County Grand Jury returned an indictment against Eldridge for felony DUI under R.C. 4511.19(A)(1) and R.C. 4511.99(A)(4)(a). On June 1, 2000, the Scioto County Common Pleas Court issued a summons to Eldridge and his attorney for Eldridge's arraignment in common pleas court on June 14, 2000. However, the Scioto County Sheriff returned the summons without service on Eldridge because the address given by him was a vacant house. Thus, Eldridge failed to appear for this scheduled arraignment and on July 7, 2000, the court issued a warrant for his arrest. On July 13, 2001, the Scioto County Sheriff executed the felony warrant and arrested Eldridge. Moreover, Eldridge concedes that the sheriff also arrested him on a misdemeanor warrant for the driving under suspension and driving left of center charges. {¶ 4} The Scioto County Municipal Court disposed of the driving under suspension and driving left of center charges on August 31, 2001. Nevertheless, Eldridge remained in the Scioto County Jail from his re-arrest on July 13, 2001, until the Scioto County Common Pleas Court continued his bond and released him on October 3, 2001. On November 7, 2001, Eldridge filed a motion to dismiss under R.C. 2945.71. Eldridge argued the state failed to bring him to trial within the statutorily required two hundred seventy days. On January 18, 2002, the court denied Eldridge's motion and he entered a no contest plea on February 1, 2002. Following sentencing, Eldridge filed this appeal and assigns the following error: "The Scioto County Court of Common Pleas erred in not granting the defendant's motion to dismiss for the failure of the State of Ohio to provide the defendant a speedy trial as provided in O.R.C.2945.71-73." {¶ 5} Our review of a trial court's decision regarding a motion to dismiss based upon a violation of the speedy trial provisions involves a mixed question of law and fact. State v. Brown (1998), 131 Ohio App.3d 387,391, 722 N.E.2d 594; State v. Kuhn (June 10, 1998), Ross App. No. 97CA2307. We accord due deference to the trial court's findings of fact if supported by competent, credible evidence. However, we independently review whether the trial court properly applied the law to the facts of the case. Id. Furthermore, when reviewing the legal issues presented in a speedy trial claim, we must strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 57,1996-Ohio-171, 661 N.E.2d 706. {¶ 6} The state must bring a person arrested and charged with a felony to trial within two hundred seventy days. R.C. 2945.71(C)(2). But if the accused remains in jail in lieu of bail solely on the pending charge, we will count each day as three days. R.C. 2945.71(E). This is the triple-count provision. An accused presents a prima facie case for discharge based upon a violation of speedy trial limitations by alleging in a motion to dismiss that the state held them solely on the pending charges and for a time exceeding the R.C. 2945.71 limits. State v.Butcher (1986), 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368. The burden of proof then shifts to the state to show that the R.C. 2945.71 limitations have not expired, either by demonstrating that the time limit was extended by R.C. 2945.721 or by establishing that the accused is not entitled to use the triple-count provision in R.C. 2945.71(E). Butcher,27 Ohio St.3d at 31. The determination of whether the state holds an accused solely on the pending charges is a legal conclusion dependent upon the underlying facts. State v. Howard (Mar. 4, 1994), Scioto App. No. 93CA2136. {¶ 7} Generally, when computing how much time has run against the state under R.C. 2945.71 we will begin with the date the state initially arrested the accused. State v. Broughton (1991), 62 Ohio St.3d 253, 260,581 N.E.2d 541. However, if the accused fails to appear for a scheduled court appearance he waives "his right to assert a violation of his statutory speedy trial rights for the period of time from his initial arrest to the date that he is rearrested." State v. Russell (June 30, 1998), Athens App. No. 97CA37 citing State v. Bauer (1980),61 Ohio St.2d 83, 85, 399 N.E.2d 555. See, also, State v. Smith,140 Ohio App.3d 81, 89, 2000-Ohio-1777, 746 N.E.2d 678; State v. Gibson (1992), 75 Ohio App.3d 388, 391, 599 N.E.2d 438. {¶ 8} In assessing speedy trial issues, the triple-count provision applies to an accused held by the state on multiple counts in the same indictment. 29A Ohio Jur.3d Criminal Law, Section 2829 citing State v.Bowman (1987), 41 Ohio App.3d 318, 321, 535 N.E.2d 730, abrogated on other grounds in State v. Palmer, 84 Ohio St.3d 103, 105, 1998-Ohio-507,702 N.E.2d 72. However, if more than one charge arises from the same incident and the multiple charges do not share a common litigation history from arrest onward, the triple-count provision will not apply.State v. Parsley (1993), 82 Ohio App.3d 567, 571, 612 N.E.2d 813. See, also, State v. Fielder (1994), 66 Ohio Misc.2d 163, 166, 643 N.E.2d 633. Moreover, where, due to the existence of another charge in another court, the state would not release the accused if the court dismissed the pending charge, the triple-count provision will not apply. State v.Dubose, Mahoning App. No. 00CA60, 2002-Ohio-6613, at ¶ 9. {¶ 9} Here, Eldridge presented a prima facie case for discharge because he alleged in his motion to dismiss that the state held him solely on the pending charge and that more than two hundred seventy days had elapsed since his arrest. Therefore, the burden properly shifted to the state. {¶ 10} Our review of the record indicates Eldridge failed to appear for his felony arraignment after posting a $5,000 surety bond. Applying the Ohio Supreme Court's holding in Bauer, Eldridge waived his right to assert a statutory speedy trial violation for the period between his initial arrest and his subsequent arrest on the outstanding warrants on July 13, 2001. Therefore, we will begin our speedy trial computation with Eldridge's re-arrest on July 13, 2001. {¶ 11} The Scioto County Sheriff's Department arrested Eldridge on July 13, 2001, and held him on two warrants, a felony warrant issued by the common pleas court and a misdemeanor warrant issued by the municipal court. The state established that the misdemeanor and felony counts did not share a common litigation history; at no time were the felony charge and misdemeanor charges consolidated. In fact, the municipal court disposed of its misdemeanor charges on August 31, 2001. Moreover, if the common pleas court had released Eldridge on the felony charge he would have remained in jail until at least August 31, 2001, because of the misdemeanor charges. Put simply, if Eldridge wanted to be released from jail prior to August 31, 2001, he would have had to post bond in both the common pleas court and the municipal court. Therefore, he is not entitled to the triple-count provision between July 13, 2001 and August 31, 2001. However, since the municipal court disposed of the misdemeanor charges on August 31, 2001, the state held him solely on the felony DUI charge from that time until the common pleas court continued his bond on October 3, 2001. Eldridge remained out of jail until he filed his motion to dismiss on November 7, 2001. {¶ 12} Based on the above, our review indicates that Eldridge is entitled to the following: (1) Forty-nine days between July 13, 2001, and August 31, 2001, for which the triple-count provision does not apply. (2) Thirty-three days between September 1, 2001, and October 3, 2001, for which the triple-count provision applies, which in turn allows Eldridge to claim credit for ninety-nine days. (3) Thirty-five days between October 4, 2001, and November 7, 2001, for which the triple-count provision does not apply. Adding all of these days together, when Eldridge filed his motion to dismiss on November 7, 2001, he was entitled to one hundred eighty-three statutory days credit for purposes of computing speedy trial time under R.C. 2945.71. Therefore, the trial court did not err in denying Eldridge's motion to dismiss because the state still had eighty-seven days to bring him to trial. Moreover, only fourteen days elapsed between the court's denial of Eldridge's motion to dismiss and his no contest plea. Therefore, the court disposed of Eldridge's case in one hundred ninety-seven statutory days, well within the two hundred seventy day limit. Eldridge's sole assignment of error is overruled. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant 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 Scioto County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Evans, P.J. Abele, J.: Concur in Judgment and Opinion. NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk. 1 R.C. 2945.72 provides in part: The time within which an accused must be brought to trial * * * may be extended only by the following: (A) Any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceeding against him; * * * (B) Any period during which the accused is mentally incompetent to stand trial; * * * (C) Any period of delay necessitated by the accused's lack of counsel; * * * (D) Any period of delay occasioned by the neglect or improper act of the accused; (E) Any period of delay necessitated by reason of a plea * * * made or instituted by the accused; (F) Any period of delay necessitated by a removal or change of venue pursuant to law; (G) Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such an order; (H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion; (I) Any period during which an appeal filed pursuant to section 2945.67 of the Revised Code is pending.

2016-07-06 06:36:07.129739+00

OPINION This appeal has been placed on the accelerated calendar. Appellant, Gloria A. Gaebler, appeals from the judgment of the Geauga County Court of Common Pleas. The trial court denied Gaebler's application to have her record expunged. In 1997, a fire started in Gaebler's apartment. The Geauga County Grand Jury indicted Gaebler on one count of aggravated arson in violation of R.C. 2909.02(A), a second degree felony. On December 10, 1997, Gaebler pled guilty to a reduced charge of arson in violation of R.C. 2909.03(A), a first degree misdemeanor. At the time Gaebler entered her plea, the charge of arson was a crime that was eligible for expungement. However, in March of 2000, the Ohio State Legislature amended R.C. 2953.36. This section now bars first degree misdemeanor offenses of violence, including arson, from being expunged. Gaebler raises a single assignment of error on review: "The trial court erred to the prejudice of defendant/appellant in denying her motion to have her record of conviction sealed." Gaebler claims that the trial court's application of the amended version of R.C. 2953.36 violates the constitutional safeguard against expost facto laws. We do not agree. Expungement is a privilege, not a right.1 The Hartrup Court held that the 1994 amendment to R.C. 2953.36, which also added crimes that were not eligible for expungement, was "constitutional as applied to persons who committed crimes prior to December 9, 1994."2 The Eight Appellate District has recently held that the March 2000 amendment to R.C. 2953.36 applies to individuals who committed offenses prior to its enactment.3 In Euclid v. Sattler, the defendant pled guilty to domestic violence, which was also a crime covered by the amended R.C. 2953.36(C). The court held that even though the application for expungement was made prior to the amendment of the statute, the amended statute still barred the expungement.4 Gaebler was not entitled to have her record expunged. The offense she was convicted of is clearly excluded by the amended version of R.C.2953.36(C). The trial court did not err in denying Gaebler's application for expungement. Gaebler asserts that her due process rights were violated, because she relied on the expectation of having her record sealed when she entered her plea. This argument was raised in State v. Davenport, where the court held that a retroactive change in expungement law did not violate due process rights.5 The Davenport Court noted that "[t]he mere fact that appellant chose to accept the state's plea bargain based upon some unilateral hope that he might be able to expunge his convictions in the future does not render expungement a fundamental right protected by due process * * *."6 We agree. The law of Ohio clearly states that changes in statutory law regarding expungement may be applied retroactively. Therefore, a defendant should never be able to assert that their due process rights were violated because they relied on the possibility of expungement, and then the expungement statute changed. If we were to hold otherwise, it would allow every defendant entering a plea agreement to "rely" on the possibility of expungement. The resulting effect would be that changes in statutory law regarding expungement could not be applied ex post facto. That is not the law of Ohio. Gaebler's assignment of error is without merit. The judgment of the trial court is affirmed. FORD, J., NADER, J., concur. 1 State v. Hartrup (1998), 126 Ohio App. 3d 768, 772. 2 Id. at 773. 3 Euclid v. Sattler (2001), 142 Ohio App. 3d 538. 4 Id. at 541. 5 State v. Davenport (1996), 116 Ohio App. 3d 6, 11. 6 Id.

2016-07-06 06:36:07.871446+00

OPINION {¶ 1} This timely matter comes for consideration upon the record in the trial court, the parties' briefs, and oral argument before this Court. Appellant Barbara Masny appeals the decision of the Mahoning County Court of Common Pleas summarily dismissing her claim of negligent infliction of emotional distress in favor of Appellee Dr. Ronald Rhodes. {¶ 2} Masny claims Rhodes' negligent destruction of her biopsy sample resulted in her loss of opportunity to determine the nature, character, and extent of her disease, if any. We must decide whether Masny's claim is based upon either a non-existent or real physical peril and whether that physical peril, if it does exist, was caused by the negligence of Rhodes. In Dobran v.Franciscan Med. Ctr., 102 Ohio St. 3d 54, 2004-Ohio-1883, the Ohio Supreme Court recently concluded that a claim is not colorable under Ohio law where a plaintiff cannot prove she contracted or will contract a disease as a result of a defendant's negligent actions. Because Masny cannot prove Dr. Rhodes actions caused her to contract a disease or to potentially contract a disease in the future, the decision of the trial court is affirmed. Facts {¶ 3} Sometime in 2000, Masny discovered a lump in her breast. Upon the recommendation of her personal physician, Masny sought the treatment of Dr. Rhodes who specializes in the identification of such lesions. Dr. Rhodes recommended excision and biopsy of the mass. The mass was removed but was somehow lost. {¶ 4} Masny returned to Dr. Rhodes on March 15, 2001 for an office visit. She had a mammogram performed on June 23, 2001 and the mammogram revealed a cyst. However, Dr. Rhodes did not believe it to be malignant. Masny then went to her gynecologist, Dr. Garritano, who referred her to Dr. Lipari. Dr. Lipari performed an ultrasound of Masny's breast but could not locate a mass. Masny then underwent a second mammogram in December of 2001 which revealed no abnormalities. Significantly, Masny was never diagnosed with cancer. {¶ 5} Masny filed suit against St. Elizabeth Medical Center and Dr. Rhodes claiming their negligent loss of the biopsy tissue caused her to lose the opportunity to determine whether she had cancer. Thus, Masny claimed Appellees negligently inflicted emotional distress upon her. Appellees moved for summary judgment arguing that Masny could not recover because no recovery could be had for that tort when it is based upon fear of a nonexistent physical peril. The trial court agreed and granted summary judgment to Appellees, which Masny now appeals. {¶ 6} Masny's sole assignment of error alleges: {¶ 7} "The trial court committed prejudicial error in granting summary judgment to Appellees Ronald A. Rhodes, M.D., and St. Elizabeth Medical Center." {¶ 8} An appellate court reviews a trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio EdisonCo., 77 Ohio St. 3d 102, 105, 1996-Ohio-0336. Summary judgment is properly granted when: (1) there is no genuine issue as to any 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 party against whom the motion for summary judgment is made. Harless v. WillisDay Warehousing Co. (1976), 54 Ohio St. 2d 64, 66; Civ.R. 56(C). {¶ 9} "[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. * * *" Dresher v. Burt (1996), 75 Ohio St. 3d 280, 293. {¶ 10} The "portions of the record" or evidentiary materials listed in Civ.R. 56(C) include the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact that have been filed in the case. The court is obligated to view all the evidentiary material in a light most favorable to the nonmoving party. Temple v. Wean United, Inc. (1977),50 Ohio St. 2d 317. {¶ 11} "If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." Dresher at 293. {¶ 12} Summary judgment is appropriate when there is no genuine issue as to any material fact. A "material fact" depends on the substantive law of the claim being litigated. Hoyt, Inc.v. Gordon Assoc., Inc. (1995), 104 Ohio App. 3d 598, 603, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242,247-248. {¶ 13} In the present case, the parties dispute whether the loss of ability to diagnose a tumor constitutes a real physical peril. The resolution of this issue is significant in that a plaintiff can only recover for negligent infliction of emotional distress if they were in fear of some real physical peril. A remarkably similar issue was just recently addressed by the Ohio Supreme Court in Dobran. {¶ 14} In that case, a mole was taken from the appellant's arm, biopsied and found to be a malignant melanoma. The appellant decided to have a sentinel lymph node biopsy performed by the appellees to determine whether his melanoma had metastasized since those nodes are the first lymph nodes in the body to be encountered by metastasized melanoma. The samples of his lymph nodes that were tested using traditional histology tested negative for metastasis. The others were frozen and shipped elsewhere for PCR screening. The shipped samples, however, had thawed before their arrival, rendering them unusable for PCR screening or other testing. {¶ 15} The appellant brought suit claiming that the PCR screening results would have defined the probability of metastasis and his life expectancy, and that his quality of life was negatively affected by the extreme emotional distress caused by the uncertainty surrounding a recurrence of cancer. In addressing this claim, the Supreme Court reviewed the evolution of the law governing claims of negligent infliction of emotional distress where a plaintiff does not suffer physical injury but is placed in actual physical peril. {¶ 16} The Supreme Court first noted its decision in Schultzv. Barberton Glass Co. (1983), 4 Ohio St. 3d 131, that "[a] cause of action may be stated for the negligent infliction of serious emotional distress without a contemporaneous physical injury".Dobran at ¶ 10, citing Schultz at syllabus. In Schultz, a sheet of glass fell off a truck and smashed into Schultz's windshield. Schultz was not physically injured, but nevertheless suffered serious emotional distress as a result of the accident. {¶ 17} The Supreme Court next referenced its decision inPaugh v. Hanks (1983), 6 Ohio St. 3d 72, that an actionable claim for negligent infliction of emotional distress was stated when a mother alleged severe psychological harm due to three separate incidents in which a car crashed into her house or yard, causing her to fear for the lives of her children. {¶ 18} Finally, the Supreme Court cited its most recent decision regarding this particular issue, Heiner v. Moretuzzo (1995), 73 Ohio St. 3d 80. In that case, the appellant was incorrectly and repeatedly informed by health professionals that she had tested positive for HIV. After later discovering that she was HIV negative, the appellant brought suit alleging that the false diagnosis was a result of the appellees' negligence, and sought recovery for negligent infliction of emotional distress. The appellant in Heiner was prohibited by the Supreme Court from recovering on those facts. {¶ 19} In Dobran, the Supreme Court explained that it had distinguished the facts in Heiner from those in Paugh andSchultz because the plaintiff in Heiner "neither witnessed nor was exposed to any real or impending physical calamity."Dobran at ¶ 12, citing Heiner at 85. "[T]he claimed negligent diagnosis never placed appellant or any other person in real physical peril, since appellant was, in fact, HIV negative." Id. The Supreme Court concluded in Heiner that "Ohio does not recognize a claim for negligent infliction of serious emotional distress where the distress is caused by the plaintiff's fear of a nonexistent physical peril." Dobran at ¶ 12, citing Heiner at syllabus. {¶ 20} After discussing the holdings from its prior decisions in Schultz, Paugh, and Heiner, the Supreme Court went on to discuss two cases cited by the appellant in support of his argument that he was actually in fear of some existent physical peril. {¶ 21} First, the appellant in Dobran cited the Eighth District's decision in Padney v. MetroHealth Med. Ctr. (2001),145 Ohio App. 3d 759. In that case, the appellant contracted tuberculosis, allegedly through his employment. The appellant died from the disease and his wife and daughter later tested positive for tuberculosis, presumably from their contact with him. The Eighth District determined, despite the fact the wife and daughter only had a latent form of tuberculosis, that sufficient evidence existed from which a reasonable jury could conclude that the employer had negligently inflicted emotional distress on plaintiffs by causing them to fear the development of active tuberculosis. {¶ 22} Next, the appellant in Dobran referenced the holding of the United States Supreme Court in Norfolk W. Ry. Co. v.Ayers (2003), 538 U.S. 135. In that case, the Court held that an asbestosis claimant, upon demonstrating a reasonable fear of cancer stemming from his present disease, could recover for that fear as part of his asbestosis-related damages for pain and suffering. However, before a plaintiff could recover, the Court explained that a "zone of danger" test was to be applied which required that the plaintiff either sustain a physical impact as a result of a defendant's negligent conduct or be placed in immediate risk of physical harm by that conduct. {¶ 23} The Supreme Court in Dobran, found the appellant's reliance upon both of these cases to be misplaced, explaining: {¶ 24} "The fundamental difference is that the plaintiffs' illnesses in Padney and Norfolk were caused by the negligence of the defendants. The Norfolk zone-of-danger test specifically requires that a plaintiff either sustained a physical impact as a result of a defendant's negligent conduct or was in the `zone of danger,' i.e., was placed in immediate risk of physical harm. Mr. Dobran did not contract cancer as a result of DCOP's allegedly negligent actions. In the event that his cancer ever returns, it will not be because DCOP placed him in any immediate risk of physical harm. {¶ 25} "As we stated in Heiner, `the facts of this case remind us that not every wrong is deserving of a legal remedy. * * * While we remain vigilant in our efforts to ensure an individual's "right to emotional tranquility," we decline to expand the law to permit recovery on the facts of this case.' (Citation omitted.) Heiner, 73 Ohio St.3d at 88,652 N.E.2d 664, quoting Paugh, 6 Ohio St.3d at 74, 6 OBR 114,451 N.E.2d 759." Dobran at ¶¶ 18, 19. {¶ 26} Although it is tempting to say that Masny's case is distinguishable from Dobran's, since Masny never received a diagnosis, it is a distinction without a difference. The detail in this case upon which our decision turns is the fact that although Masny contends Rhodes caused her emotional distress, the Ohio Supreme Court has held that this is not compensable. {¶ 27} Because this case is not akin to asbestos or tobacco litigation, we were not called upon to decide what may have caused the lump in Masny's breast. Instead, we were asked to decide whether Rhodes failure to test the biopsied cells placed Masny in some real physical peril. In the present case, Masny has failed to prove that Dr. Rhodes would be in any way responsible for her potential contraction of cancer. Based upon the recent decision of the Ohio Supreme Court, we conclude that Masny simply cannot recovery under this particular theory. {¶ 28} We understand that Masny was searching for some peace of mind. The quality of her life has been affected by the uncertainty surrounding the possible future diagnosis of cancer. However, in light of the Supreme Court's decision in Dobran, the lost opportunity to diagnose a condition is simply not the type of wrong from which a person can seek recovery in the State of Ohio. {¶ 29} Accordingly, Masny's sole assignment of error is meritless and the judgment of the trial court is affirmed. Waite, P.J., concurs. Vukovich, J., concurs.

2016-07-06 06:36:07.899627+00

DECISION AND JUDGMENT ENTRY Relator, J.H. Routh Packing Co., is the defendant in two lawsuits. The first suit was brought in federal court by the United States Equal Employment Opportunity Commission. The second was initiated by Jason Polak before respondents, Erie County Court of Common Pleas and its judge, Ann Maschari. Both suits arise from Polak's termination from relator's employment, allegedly because of his disability. See, State exrel. J.H. Routh Packing Co. v The Court of Common Pleas of Erie County,et al. (Aug. 30, 2001), Erie App. No. E-01-034, unreported. In the present action, relator seeks a writ prohibiting respondents from proceeding with the second lawsuit. Relator maintains that the federal lawsuit divests respondents of jurisdiction in the state proceeding. For a writ of prohibition to issue, a relator must establish (1) that the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law.Fraiberg v. Cuyahoga Co. Court of Common Pleas (1986), 76 Ohio St. 3d 374. While clearly respondents in this matter are about to exercise judicial power, whether such exercise is unauthorized by law or there is no adequate remedy at law is problematic. "`The rule is firmly established that the Court of Common Pleas is a court of general jurisdiction and, as such, possesses the authority initially to determine its own jurisdiction over both the person and subject matter in an action before it * * *.' State ex rel. Heimann v. George (1976) , 45 Ohio St. 2d 231, 232, 74 O.O.2d 376, 344 N.E.2d 130, 131; State ex rel. Zakany v. Avellone (1979), 58 Ohio St. 2d 25, 26, 12 O.O.3d 14, 14-15, 387 N.E.2d 1373, 1374. '* * * A party challenging [a court's] jurisdiction has a remedy at law in appeal from an adverse holding of the court that it has such jurisdiction, and may not maintain a proceeding in prohibition to prevent the prosecution of such action.' State ex rel. Miller v. Lake Cty. Ct. of Common Pleas (1949), 151 Ohio St. 397, 39 Ohio Op. 232, 86 N.E.2d 464, paragraph three of the syllabus; State ex rel Gilla v. Fellerhoff (1975), 44 Ohio St. 2d 86, 87, 73 O.O.2d 328, 338 N.E.2d 522, 523; State ex rel. Gonzales v. Patton (1975), 42 Ohio St. 2d 386, 388, 71 O.O.2d 371, 372, 329 N.E.2d 104, 106." State ex rel. Ruessman v. Flanagan (1992), 65 Ohio St. 3d 464, 466. The only exception to the rule is, "where there is a total want of jurisdiction on the part of a court* * *." Id., quoting State ex relAdams v. Gusweiler (1972), 30 Ohio St. 2d 326, paragraph two of the syllabus. However, the exception may be employed, only when "there is a `patent and unambiguous restriction' on the jurisdiction of the court which clearly places the dispute outside the court's jurisdiction." Id. quoting State ex rel. Gilla v. Fellerhoff, (1977), 44 Ohio St. 2d 86, 88. See, also, State ex rel. Toma v. Corrigan (2001), 92 Ohio St. 3d 589,591. Despite ample opportunity to do so, appellant has directed us to no authority in support of its proposition that the existence of a federal case divests a state court of jurisdiction over subject matter which is within the general jurisdiction of the state court. Relator's argument that to defend both actions may be inconvenient, or may be expensive, or may result in one case becoming res judicata to the other does not equate to a "patent and unambiguous" jurisdiction restriction. Absent such a restriction, relator may not maintain the petition for prohibition. Accordingly, respondent's motion to dismiss is well taken and is, hereby, granted. Court costs assessed to relator. WRIT DISMISSED. Peter M. Handwork, J., Melvin L. Resnick, J. CONCUR.

2016-07-06 06:36:07.203704+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant-appellant, Robert Rakoczy, appeals from the judgment of the Cuyahoga County Court of Common Pleas dismissing his petition for postconviction relief without a hearing. For the reasons stated below, we affirm. FACTS AND PROCEDURAL HISTORY {¶ 2} The facts of this case were set forth by this court in our opinion dated March 28, 2002, in which we affirmed appellant's convictions. State v. Rakoczy (Mar. 28, 2002), Cuyahoga App. Nos. 79998, 79999. We stated: {¶ 3} "Appellant's convictions result from his indictment in two separate cases. In Case No. CR-398017, appellant was indicted on one count of forcible rape of a seven-year-old female, R.C. 2907.02(A)(1)(b) and (A)(2). In Case No. CR-402373, appellant was indicted on six counts, vis., five counts of pandering sexually-orientated matter involving a minor, R.C. 2907.322; and one count of possession of criminal tools, to wit: a computer, R.C. 2923.24. Appellant's cases were assigned to the same court for trial. Appellant entered pleas of not guilty to the charges and retained counsel to represent him. {¶ 4} "A lengthy discovery process ensued in appellant's cases. Eventually appellant executed written waivers of his right to a jury trial in each case. Prior to accepting appellant's written waivers, the trial court first carefully explained to him on the record the nature of the offenses of which he was accused and the maximum penalties involved for each offense. The trial court further assured itself appellant realized exactly what he was relinquishing in executing the waivers. {¶ 5} "Appellant's cases thereupon jointly proceeded to trial. The State presented the testimony of eleven witnesses over the course of the next three days; these witnesses included the female child alleged to be the rape victim and an expert in computer forensic work. {¶ 6} "The record reflects the State for the most part had concluded its case-in-chief when appellant's counsel indicated to the trial court [that] appellant desired to enter into a plea agreement. The trial court enjoined appellant to carefully consider the matter, requesting appellant to sleep on his decision. {¶ 7} "The proposed terms of the plea agreement thereupon were set forth by the trial court as follows: {¶ 8} "`I do want to just briefly spread on the record the plea bargain as I understand it that's been offered in effect by the State of Ohio to the defendant. It would be that on the single rape charge in Mr. Rakoczy's 398017 case, that the State of Ohio would remove the allegation that this rape was committed with the use of force or threat of force. {¶ 9} "`By deleting that language, this rape charge ceases to carry a mandatory life sentence and merely carries a mandatory prison sentence. The prison sentence could be three, four, five, six, seven, eight, nine or ten years. But the State of Ohio only agrees to do this if Mr. Rakoczy agrees to a ten-year prison sentence as the punishment, so this would be amending the rape charge down to be a first degree felony carrying a mandatory prison sentence, with the defendant agreeing to serve the ten-year prison sentence, which is in effect a maximum sentence on that reduced rape charge. But of course that's a greatly reduced sentence from the mandatory life sentence. {¶ 10} "`In addition, the State of Ohio would agree that Mr. Rakoczy pleads guilty on all six of the fifth degree felonies that are charged against him in Case Number 402373. There are, in that case, five counts of pandering. Each of those counts are (sic) fifth degree felonies, their maximum sentence is one year. The State of Ohio wants an agreed sentence from Mr. Rakoczy that he agrees to serve consecutively, meaning after the ten-year sentence for the rape, one additional year consecutively for each of those five counts of pandering. {¶ 11} "`Now, if you serve one year consecutively on each of the five counts, that adds five years to the prison sentence. So now we're up to, in effect, an agreed sentence of fifteen years. They also want a plea of guilty to the possession of criminal tools. They want the agreed sentence to reflect a one-year concurrent sentence there; therefore, pleading guilty, getting a one-year sentence on that final sixth possession of criminal tools charge doesn't add any prison sentence. {¶ 12} "`But Mr. Rakoczy would then be pleading guilty to seven felonies, one rape, five panderings and one possession of criminal tools, and that prison sentence would be a fifteen-year term. {¶ 13} "`This would be, at least in the first ten years, a mandatory sentence. After that, it would not be a mandatory sentence but it would be an agreed sentence. {¶ 14} "`Agreed sentences mean that the defendants have no opportunity for an early release program or like shock incarceration, judicial release, used to be called shock probation or super shock probation. No shock incarceration, boot camp programs or anything like that. It says you go and serve your sentence. {¶ 15} "`* * * {¶ 16} "`Mr. Rakoczy would also * * * have to stipulate to a finding that he is a sexual predator, that of course has the impact that upon release from prison, Mr. Rakoczy would have to report to the county sheriff of his county of residence and verify his residence address and meet other similar requirements for the balance of his life. {¶ 17} "`And that is my understanding of the plea bargain. There may be court costs. There is (sic) no fines that I'm aware of that were part of that.'" {¶ 18} "At that point, the trial court continued the proceedings in order for appellant to consider whether to accept the foregoing offer from the State. {¶ 19} "The following day, appellant informed the trial court he desired to enter into the plea agreement. A colloquy between the trial court and appellant followed. Appellant informed the trial court he was thirty-eight years old, had graduated from high school and had attended three years of college, was not under the influence of either alcohol or medications, and had no history of mental illness. In response to the trial court's inquiry, appellant further stated he understood that a guilty plea was an admission of his guilt of the charges. {¶ 20} "The trial court additionally inquired of appellant in relevant part as follows: {¶ 21} "`THE COURT: And you understand that you don't have to plead guilty, I explained to you yesterday, we can resume the trial, the Court would not be prejudiced in any way or hold it against you because you weren't available on time yesterday. The Court would be easily able to focus on the proper evidence and the case and exclude those things which wouldn't properly be used as evidence against you, understood? {¶ 22} "`THE DEFENDANT: I missed part of that. {¶ 23} "`THE COURT: I'm saying you understand you don't have to plead guilty here today. {¶ 24} "`THE DEFENDANT: Right. {¶ 25} "`THE COURT: And number one, that's your choice whether you plead guilty or continue the trial. {¶ 26} "`THE DEFENDANT: Okay. {¶ 27} "`THE COURT: Understood? {¶ 28} "`THE DEFENDANT: Yes. {¶ 29} "`* * * {¶ 30} "`THE COURT: Okay. And you understand that the right to go to trial does of course include the right to decide whether you have a judge trial or jury trial, understood? {¶ 31} "`THE DEFENDANT: Right. {¶ 32} "`THE COURT: And you know that at trial, you do always have a lawyer, can't afford one, one is appointed at no cost to you, understood? {¶ 33} "`THE DEFENDANT: Right. {¶ 34} "`THE COURT: And you understand at trial you [don't] have to testify, no one can make you talk, they can't even comment on the fact your choice was to remain silent, if indeed that's what you choose to do, understood? {¶ 35} "`THE DEFENDANT: Understood. {¶ 36} "`THE COURT: And you understand at trial the burden of proof is always on the prosecutor to prove guilt beyond a reasonable doubt on any given charge or charges. If the State of Ohio fails to meet that burden, then you have to be acquitted and discharged on that particular charge, understood? {¶ 37} "`THE DEFENDANT: Understood. {¶ 38} "`THE COURT: And now at trial, you and your lawyer do get to cross-examine all of the witnesses that come to build a case against you, you get subpoena power to bring witnesses who could build your side of the case, understood? {¶ 39} "`THE DEFENDANT: Uh-huh. {¶ 40} "`THE COURT: Is that a yes? {¶ 41} "`THE DEFENDANT: Yes.'" {¶ 42} "The trial court thereafter explained the maximum penalties associated with the amended charges against appellant, cautioning that mandatory incarceration means that the offender, once he or she is convicted of such a charge, is not eligible for a non-prison sentence. `Pursuant to the plea agreement, moreover, instead of the Court choosing the number of years [of] mandatory incarceration, * * * you agree to a sentence of ten years * * * for conviction of rape for the kind of rape they (sic) changed this charge down to.' Appellant assured the trial court he understood. The discussion of the agreed sentence with regard to the pandering charges was to the same effect. {¶ 43} "After the trial court explained the nature of the charges and the statutory post-release control provisions applicable to appellant, appellant pleaded guilty to the amended charge in CR-398017 and the charges in CR-402373. In doing so, appellant answered `yes' when the trial court reminded him that he had said `[he] understood * * * the penalties that attach if you are convicted.' {¶ 44} "The trial court ultimately accepted appellant's pleas, found him guilty, and proceeded to sentence appellant. The trial court first considered the statutory sentencing factors before concluding the agreed sentence was appropriate." {¶ 45} Appellant subsequently appealed from his convictions, arguing that the trial court had failed to comply with Crim.R. 11 in accepting his guilty plea because it did not determine that he understood he was waiving his constitutional rights by the entry of his pleas and did not address its prerogative to proceed immediately to sentencing. This court rejected appellant's arguments and affirmed his conviction, finding that the trial court's colloquy with appellant was sufficient to ascertain that appellant understood he was relinquishing his constitutional rights by entering his guilty plea and that the trial court "went to great lengths on two separate occasions" to inform appellant of the fifteen-year sentence he would serve as a result of his plea. State v. Rakoczy (Mar. 28, 2002), Cuyahoga App. Nos. 79998, 79999. On December 4, 2001, while his appeal was pending, appellant filed a petition for postconviction relief pursuant to R.C. 2953.21. In his petition, appellant asserted that he was denied his right to effective assistance of counsel because his trial counsel gave him inaccurate information about his potential sentence and did so in a threatening manner. Specifically, appellant alleged that his counsel advised him that the charges in the indictment carried a sentence of life without any parole and told him, "you will never see the light of day if you don't take this plea." {¶ 46} Appellant also asserted that his guilty plea was not entered into knowingly, intelligently and voluntarily, in compliance with Crim.R. 11, because "neither petitioner's counsel nor the trial court explained to him the concept of waiver." {¶ 47} On June 13, 2002, the trial court denied appellant's petition without a hearing. Appellant appealed the trial court's judgment denying his petition, raising three assignments of error for our review. Assignments of Error {¶ 48} R.C. 2953.21, which governs petitions for postconviction relief, provides in pertinent part: {¶ 49} "(A)(1) Any person convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief. {¶ 50} "* * * {¶ 51} "(C) * * * Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of court, and the court reporter's transcript. * * * If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal." {¶ 52} In his third assignment of error, appellant contends that the trial court committed reversible error in dismissing his petition without first conducting an evidentiary hearing. It is well-settled, however, that a hearing is not automatically required whenever a petition for postconviction relief is filed. State ex rel. Jackson v. McMonagle (1993), 67 Ohio St. 3d 450; State v. Strutton (1988), 62 Ohio App. 3d 248, paragraph one of the syllabus. The pivotal concern is whether there are substantive constitutional grounds for relief which would warrant a hearing based upon the petition, the supporting affidavits and materials, and the files and record of the cause. Strutton, supra. A petitioner is entitled to postconviction relief under R.C. 2953.21 only if the court can find that there was such a denial or infringement of the petitioner's rights as to render the judgment void or voidable under the Ohio or United States Constitutions. State v. Perry (1967),10 Ohio St. 2d 175, paragraph four of the syllabus. Where a petition for postconviction relief fails to allege facts which, if proved, would entitle the petitioner to relief, the trial court may so find and summarily dismiss the petition. Perry, supra, paragraph two of the syllabus. {¶ 53} We conclude that the trial court did not err in dismissing appellant's petition without holding an evidentiary hearing. A review of the petition, the supporting affidavit, the file and the record of the case leads us to conclude that appellant has failed to raise a genuine issue of material fact that there are substantive constitutional grounds for relief. The deficiencies of appellant's claims are discussed in detail below in our analysis regarding appellant's other assignments of error. {¶ 54} In his first assignment of error, appellant contends that the trial court erred in dismissing his petition without a hearing because he did not receive effective assistance of counsel, in violation of his state and federal constitutional rights. {¶ 55} In the affidavit attached to his petition, appellant averred that he did not receive effective assistance of counsel because his counsel advised him that the charges in the indictment carried a possible sentence of life without any chance for parole. Appellant also averred that defense counsel "had not sufficiently investigated defense expert and other witnesses and evidence as I had requested." In his petition, appellant argued that the incorrect information from defense counsel, provided in a threatening manner designed to intimidate him, "induced him to plead guilty, at a vulnerable time, when he really wanted to conclude his trial with a decision on the merits." {¶ 56} In order to establish ineffective assistance of counsel, a defendant must demonstrate that his or her counsel's performance fell below an objective standard of reasonable representation and that he or she was prejudiced by that performance. State v. Bradley (1989),42 Ohio St. 3d 136, paragraph two of the syllabus, certiorari denied (1990), 497 U.S. 1011. "Before a hearing is granted, the petitioner bears the initial burden in a postconviction proceeding to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and also that the defense was prejudiced by counsel's ineffectiveness." State v. Jackson (1980), 64 Ohio St. 2d 107,111. {¶ 57} Here, appellant presented no evidence with his petition to indicate what "defense expert and other witnesses and evidence" he was referring to in his petition. He also failed to present any evidence showing how he was prejudiced by his counsel's alleged failure to adequately investigate the alleged witnesses. {¶ 58} In addition, appellant failed to demonstrate that he was prejudiced by his counsel's alleged inaccurate information regarding the prison sentence or the alleged intimidating manner in which counsel presented the information. The record reflects that after three days of testimony by the State's witnesses, appellant's counsel informed the trial court that appellant wished to enter into a plea agreement. The trial court then reviewed the plea agreement with appellant and explained how the penalties for the reduced rape charge would vary from the original charge. The trial court then cautioned appellant to carefully consider the matter and to think about his decision that night. {¶ 59} The next day, before accepting appellant's plea, the trial court specifically told appellant that he was not required to plead guilty and that he could continue the trial, with no prejudice to him. Appellant stated, however, that he chose to enter a plea. The trial court then reviewed with appellant the constitutional rights he was giving up by pleading and explained the penalties associated with the amended charges against him. {¶ 60} Thus, even assuming that defense counsel intimidated appellant or misinformed him regarding the potential sentence, the record reflects that the trial court correctly informed appellant of the potential sentence for the rape charge. In addition, the record clearly reflects that the trial court gave appellant several opportunities to decide not to plead guilty. {¶ 61} Accordingly, we conclude that nothing in the evidentiary materials, when considered against the entire record, raises an issue of fact that appellant was deprived of effective assistance of counsel. The trial court did not err, therefore, in dismissing appellant's claim without an evidentiary hearing. {¶ 62} In his second assignment of error, appellant asserts that the trial court erred in dismissing his petition without a hearing because his guilty plea was not entered into knowingly, intelligently or voluntarily. Appellant contends that his plea was involuntary because he did not understand that by entering his plea, he would be relinquishing his constitutional rights. {¶ 63} This argument was considered and rejected by this court in appellant's direct appeal. We stated: {¶ 64} "Appellant in this case had the benefit of several months of discovery and three days of trial in which he exercised the constitutional rights the trial court outlined for him during its colloquy. From the context of the trial court's questions, therefore, it is clear appellant, a former college student, understood that by entering his plea he was relinquishing those rights." Rakoczy, supra. {¶ 65} Under the doctrine of res judicata, constitutional issues cannot be considered in postconviction proceedings brought pursuant to R.C. 2953.21 where they have already been or could have been fully litigated by the defendant, either before his or her judgment of conviction or on direct appeal from that judgment. State v. Perry (1967), 10 Ohio St. 2d 175, paragraph seven of the syllabus; State v.McCoullough (1992), 78 Ohio App. 3d 587, 591. Issues properly raised in a petition for postconviction relief are those which could not have been raised on direct appeal because the evidence supporting such issues is outside the record. State v. Slagter (Oct. 18, 2001), Cuyahoga App. No. 78658, citing State v. Milanovich (1975), 42 Ohio St. 2d 46, 50; State v.Bates (Jan. 21, 1999), Cuyahoga App. No. 75093. If an issue has, or should have been raised on direct appeal, the trial court may dismiss the petition on the basis of res judicata. State v. Spisak (Apr. 13, 1995), Cuyahoga App. No. 67229. {¶ 66} Because appellant's claim regarding his guilty plea was raised in his direct appeal, the trial court properly dismissed appellant's claim on the basis of res judicata. {¶ 67} Appellant's first, second and third assignments of error are therefore overruled. Judgment affirmed. It is ordered that appellee recover from appellant 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. MICHAEL J. CORRIGAN, J. and COLLEEN CONWAY COONEY, J. CONCUR.

2016-07-06 06:36:07.294744+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant-appellants Mary E. Papcke ("Papcke") and Barbara Shagawat ("Shagawat" or collectively referred to as "appellants") appeal the Parma Municipal Court's judgment against them, claiming the court never had personal jurisdiction over them. Appellants also argue that plaintiff-appellee Serge Ramirez ("Ramirez") did not have privity of contract with Shagawat and, thus, had no cause of action against her. We find merit to the appeal and reverse and remand for further proceedings. {¶ 2} Papcke hired Ramirez to perform carpentry work on a new home located at 12936 Huffman Road, which was unoccupied and still under construction. On November 14, 2002, Ramirez met Papcke at the construction site, and they executed a written contract whereby Papcke agreed to pay a total of $1,555.65 for labor. Pursuant to this agreement, Papcke agreed to pay Ramirez "by the job" as opposed to by the hour. Later that day, Ramirez called Papcke and requested reimbursement for materials he purchased and payment "up front" for fifty percent of his labor. Papcke was unable to meet Ramirez at the site, so Shagawat met him and gave him a check for $1,053.23. {¶ 3} As part of his work, Ramirez installed basement molding, using mitered joints. Papcke complained that she wanted a covered joint instead, which necessitated Ramirez redoing the basement molding. Ramirez redid the molding at Papcke's request, with additional labor and expense beyond the original contract. Other than requesting that Ramirez redo the basement molding, Papcke had no other complaints about Ramirez's work as of November 15, 2002. {¶ 4} However, on the morning of November 16, before Ramirez resumed work, Papcke instructed him to cease all work on the property and advised him that the check Shagawat had given him had been canceled. Papcke paid him $630 to cover the cost of materials and an amount which she considered fair compensation for the work done by Ramirez. It is undisputed that Ramirez had not completed all of the items listed in the original contract. {¶ 5} On December 2, 2002, Ramirez filed a complaint for breach of contract against Papcke and Shagawat in the Parma Municipal Court. The clerk's office issued service on Papcke and Shagawat by certified and regular mail. The complaint was sent to Papcke at the address on Huffman Road, the home which was under construction and unoccupied, and to Shagawat at 6331 Old Virginia Lane in Parma Heights, which was then Shagawat's home address. {¶ 6} The trial court's journal reflects that the attempts at certified mail service upon both Papcke and Shagawat were returned "unclaimed." However, the court's journal also reflects that regular mail service to the parties was delivered, and not returned to the court. {¶ 7} The case proceeded to a hearing before a magistrate on January 6, 2003. Neither Papcke nor Shagawat appeared. Ramirez presented unrefuted evidence of his claim and the court entered judgment in his favor in the amount of $1,053.23. Papcke, who had moved into the house on Huffman Road on December 18, 2002, received the magistrate's decision at that address. On January 27, 2003, Papcke, an attorney, filed objections to the magistrate's decision on behalf of herself and Shagawat, and she also requested a transcript of the January 6 hearing. {¶ 8} In May 2003, the judge ruled on appellants' objections to the magistrate's decision, upholding one of the three objections and scheduling a rehearing. Ramirez and Papcke were both present for the rehearing on June 17, 2003. Papcke asserted on the record that her appearance in no way constituted a waiver of her defense of lack of service on both herself and Shagawat. The court then heard additional testimony and again entered judgment in favor of Ramirez, this time in the amount of $1,191.05. {¶ 9} Papcke and Shagawat appeal, raising two assignments of error. Service {¶ 10} In their first assignment of error, Papcke and Shagawat argue the trial court erred in proceeding with a hearing and entering judgment against them without first obtaining jurisdiction over them. Papcke argues she was never properly served because the complaint was mailed to the Huffman Road address, which was the unoccupied house where Ramirez was performing the work. Papcke asserts that because she did not reside there, she could not be served at that address. She also claims she never received a copy of the complaint. {¶ 11} It is undisputed that the attempts to serve Papcke and Shagawat by certified mail failed because the certified mail envelopes were returned "unclaimed." It is also undisputed that the Clerk of the Parma Municipal Court simultaneously issued service of the complaint to Papcke and Shagawat by ordinary mail. As previously stated, the complaint was sent to Papcke at the Huffman Road address, the unoccupied home under construction. The complaint was sent to Shagawat at 6331 Old Virginia Lane, which was then Shagawat's home address. {¶ 12} A complaint is to be served at an address where there is a reasonable expectation that service will be accomplished.United Home Fed. v. Rhonehouse (1991), 76 Ohio App. 3d 115, 124,601 N.E.2d 138. Civ.R. 4.6(D), which governs service by ordinary mail, provides in pertinent part: "[T]he clerk shall send by ordinary mail a copy of the summons and complaint or other document to be served to the defendant at the address set forth in the caption, or at the address set forth in the written instructions furnished to the clerk. The mailing shall be evidenced by a certificate of mailing which shall be completed and filed by the clerk. Answer day shall be twenty-eight days after the date of mailing as evidenced by the certificate of mailing. The clerk shall endorse this answer date upon the summons which is sent by ordinary mail. Service shallbe deemed complete when the fact of mailing is entered of record,provided that the ordinary mail envelope is not returned by thepostal authorities with an endorsement showing failure ofdelivery." {¶ 13} Id. (Emphasis added.) {¶ 14} A "certificate of mailing" must be a United States Postal Service confirmation of mailing. Gen. Motors AcceptanceCorp. v. Kollert (1986), 33 Ohio App. 3d 274, 275,515 N.E.2d 959. Thus, service is "`deemed complete'" under Civ.R. 4.6(D) when: (1) the "certificate of mailing," time-stamped by the United States Postal Service, is entered upon the record and (2) the ordinary mail envelope is not returned to the court with an endorsement showing failure of delivery. Hayes v. Gradisher, Summit App. No. 17791, 1996 Ohio App. LEXIS 4733, at *6. {¶ 15} However, even when service is in compliance with the Civil Rules and, therefore, presumed to be complete, this presumption may be rebutted by sufficient evidence that service was not accomplished. Carter v. Miles (Feb. 3, 2000), Cuyahoga App. No. 76590; Koziol v. Refe, Geauga App. No. 93-G-1769, 1993 Ohio App. LEXIS 5925; Talarek v. Miles, Lorain App. No. 96CA006567, 1997 Ohio App. Lexis 3164, citing Rafalski v. Oates (1984), 17 Ohio App. 3d 65, 66. A party's affidavit, if unchallenged, is sufficient to overcome the presumption of service. Carter, supra. The trial court's determination of whether service by ordinary mail was completed will not be disturbed absent an abuse of discretion. Talarek, supra. {¶ 16} In the instant case, the certificate of mailing bears the time stamp from the United States Postal Service confirming the fact of mailing, and the ordinary mail envelope was not returned to the court. Thus, Ramirez complied with Civ.R. 4.6 in his efforts to serve appellants, and the presumption of completed service attached. {¶ 17} However, Papcke submitted an affidavit with her objections to the magistrate's report, wherein she stated that she did not reside at the Huffman Road address at the time the complaint was mailed and that she never received a copy of the complaint. There is nothing in the record rebutting these facts. Although Ramirez could reasonably expect that service would be accomplished at the Huffman Road address, because it is undisputed that Papcke did not reside at that address and there is no evidence to refute her claim that she never received a copy of the complaint, the presumption of service by ordinary mail is rebutted. Without proper service, the court never obtained jurisdiction over Papcke. {¶ 18} However, because there is no evidence to rebut the presumption that Shagawat was served by ordinary mail at her home, the trial court properly found that service was perfected on her, and the court had jurisdiction over her. {¶ 19} Accordingly, the first assignment of error is sustained as to Papcke and overruled as to Shagawat. Privity of Contract {¶ 20} In their second assignment of error, appellants argue the trial court erred in entering judgment against Shagawat because there was no privity of contract between Ramirez and Shagawat. Therefore, appellants argue, Ramirez has no cause of action against Shagawat for breach of contract. "In general, a contract binds, and confers rights on, only theparties thereto and persons in privity with them, and accordinglyno one can sue for a breach of contract unless he is a party orderives rights from an original party. The contract itselfdetermines the legal rights and liabilities of the parties andconfers the legal right of recovery." {¶ 21} Bischoff v. B D Woodcrafters, Inc., Montgomery App. No. 11811, 1990 Ohio App. LEXIS 2016, citing Delly v.Lehtonen (1984), 21 Ohio App. 3d 90. {¶ 22} Where third parties are involved, the Ohio Supreme Court has explained that only intended third-party beneficiaries to a contract have enforceable rights under a contract. Hill v.Sonitrol of Southwestern Ohio, Inc. (1988), 36 Ohio St. 3d 36,521 N.E.2d 780. In determining whether a third party has enforceable rights under a contract, the Hill court explained the test is whether the promisee intended to benefit a third party. Specifically, the Hill court explained: "* * * Under this analysis, if the promisee * * * intendsthat a third party should benefit from the contract, then thatthird party is an `intended beneficiary' who has enforceablerights under the contract. If the promisee has no intent tobenefit a third party, then any third-party beneficiary to thecontract is merely an `incidental beneficiary,' who has noenforceable rights under the contract. * * [T]he mere conferring of some benefit on the supposedbeneficiary by the performance of a particular promise in acontract [is] insufficient; rather, the performance of thatpromise must also satisfy a duty owed by the promisee to thebeneficiary." {¶ 23} Id., quoting Norfolk Western Co. v. United States (C.A. 6, 1980), 641 F.2d 1201, 1208. {¶ 24} In Point East Condominium Owners' Assn. v. CedarHouse Assoc. (1995), 104 Ohio App. 3d 704, this court held that in determining whether the promisee intended to benefit a third party, courts should look at the language of the contract. Id., citing Lin v. Gatehouse Constr. Co. (1993), 84 Ohio App. 3d 96,102, 616 N.E.2d 519. {¶ 25} Further, in Brenner v. Curran-Nosker Drywall, Inc., Hamilton App. No. C-860447, 1987 Ohio App. LEXIS 7983, the court held that a contract did not exist between the plaintiff and third party simply because the defendant and third party were partners and joint owners. {¶ 26} Here, although Shagawat and Papcke are co-owners of the house where Ramirez performed the carpentry work, Ramirez admitted during the rehearing that he never had a contract with Shagawat. Ramirez also admitted that Shagawat's name does not appear on the written contract and that he had no dealings with Shagawat other than receiving a check from her. It is clear from his testimony that, at the time he entered into the contract with Papcke, Ramirez did not know Shagawat was a co-owner of the house nor did he intend to benefit her by his work. Thus, Shagawat is an incidental beneficiary with no duties or obligations under the contract between Ramirez and Papcke. Therefore, Ramirez had no cause of action for breach of contract against Shagawat. {¶ 27} Accordingly, the second assignment of error is sustained. {¶ 28} Judgment reversed and case remanded. Anne L. Kilbane, P.J., and Anthony O. Calabrese, J., concur. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee the costs herein. It is ordered that a special mandate be sent to the Parma Municipal 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.

2016-07-06 06:36:08.821824+00

{¶ 157} I agree with the majority as to the disposition of the first assignment of error. I disagree with the majority as to the extent of its analysis of the first assignment of error. The only issues regarding distribution of the parties' assets and debts raised by the appellant in his objection to the Magistrate Decision were that the Magistrate erred in attributing $18,000.00 in debt to the appellee's side of the trial spread sheet when appellee failed to produce evidence to corroborate these loans from her family and that the Magistrate failed to give appellant credit for reducing the mortgage principal by $11,951.21. I would have addressed those two limited issues only in my analysis of the first assignment of error. {¶ 158} I agree with the majority as to its analysis and disposition of the second, third and fourth assignments of error. {¶ 159} I agree with the majority as to its disposition of the fifth assignment of error. I disagree with the majority as to its analysis of the fifth assignment of error. I would find that appellant has waived any error regarding his motion for fees since said issue was not raised before the trial court when the appellant could have easily done so in his objection to the Magistrate's Decision. {¶ 160} I agree with the majority as to its disposition of the sixth and seventh assignments of error. But, while I agree that both assignments of error should be overruled, I strongly disagree with the majority as to the analysis of these assignments of error. The majority overrules the sixth and seventh assignments of error because it finds that the error made by the trial court was harmless. The majority specifically finds that the trial court was without subject matter jurisdiction to find the appellant in contempt because the appellee raised this issue in an objection filed too late. But since, no penalty was imposed for the contempt, the error made by the trial court was harmless. {¶ 161} I find that the trial court did have subject matter jurisdiction to rule on the late objections to the Magistrate's Decision filed by the appellee. Civil Rule 53(E)(3)(a) sets forth when objections have to be filed. Civil Rule 6(B) allows a trial court to expand most time deadlines set forth in the Civil Rules. I concede that there was no motion made by appellee under Civ. Rule 6(B), but I agree with the finding in Baker v. Baker (1990), 68 Ohio App.3d 402, 405, 588 N.E.2d 944. While a trial court is not required to consider objections that are untimely filed, "if . . . objections are filed after the expiration of the . . . period allowed by Civil Rule 53(E)(2) [now Civ. R. 53(E)(3)(a)] but before the court's entering final judgment, the court may consider them sua sponte, and such consideration will be construed as the granting of leave to file late objections. . . ."1 {¶ 162} Therefore, I conclude that the trial court had subject matter jurisdiction to rule on appellee's late objections and, by ruling on these objections, impliedly had granted leave to appellee to file them late. Since those objections were filed prior to the trial court entering judgment and there was no objection made to the trial court by appellant to these late objections, the appellant has waived that issue on appeal. {¶ 163} In addition, I find that the trial court did not abuse its discretion in finding appellant in contempt of court. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed to appellant. 1 This court cited Baker in its decision of Koberstein v.Richland Lumber, Inc., Richland App. No. 03-CA-110,2004-Ohio-5291. This court in Koberstein found that the trial court could not rule on the tardy objections, but the objections in Koberstein were filed after the trial court had entered final judgment.

2016-07-06 06:36:09.797741+00

OPINION {¶ 1} On August 12, 1989, appellant, Faith Geyer, and appellee, Dennis Geyer, were married. On December 18, 2001, appellant filed for divorce. {¶ 2} A hearing before a magistrate was held on November 20, 2001. By decision filed January 24, 2002, the magistrate recommended several orders pursuant to an agreement between the parties. Pertinent to this appeal is the order that appellee pay appellant $200.00 for thirty-six months as spousal support. By judgment entry filed February 13, 2002, the trial court approved and adopted the magistrate's decision. {¶ 3} On April 18, 2002, appellee moved to terminate his spousal support obligation as appellant was cohabitating with a male. By decision filed September 10, 2002, the magistrate found the trial court had not reserved jurisdiction over spousal support and therefore denied appellee's motion. Appellee filed objections. By judgment entry filed February 10, 2003, the trial court overruled the objections pertaining to spousal support, but sua sponte terminated spousal support finding appellant had remarried. {¶ 4} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I {¶ 5} "The Trial Court Erred As A Matter Of Law When It Acted To Terminate An Order For Spousal Support Where The Divorce Decree Did Not Conatin An Express Reservation Of Jurisdiction." I {¶ 6} Appellant claims the trial court erred in terminating spousal support. We agree. {¶ 7} The magistrate's recommendation as to spousal support, agreed to by the parties and approved and adopted by the trial court, ordered the following: {¶ 8} "The Defendant shall be further required to pay to the Plaintiff as and for spousal support the amount of $200.00 per month plus processing fee commencing 12/1/2001 and to continue for a period of thirty six (36) months. Any arrearage in spousal support should be paid by 3/11/2002. Said amount shall also be paid through the Child Support Enforcement Agency. The Court shall not retain jurisdiction over the issue of spousal support except as necessary to the enforce (sic) this Order." See, January 24, 2002 Magistrate's Decision at Recommendation No. 5. {¶ 9} Clearly the trial court did not retain jurisdiction over the spousal support issue. In Kimble v. Kimble, 97 Ohio St.3d 424,2002-Ohio-6667, syllabus, the Supreme Court of Ohio stated, "Pursuant to R.C. 3105.18(E), a trial court has the authority to modify or terminate an order for alimony or spousal support only if the divorce decree contains an express reservation of jurisdiction. R.C. 3105.18(E), applied and interpreted." {¶ 10} In addition, during the objection hearing, appellee withdrew his objection to the magistrate's denial of his motion to terminate the spousal support. January 27, 2003 T. at 26-27. {¶ 11} Upon review, we find the trial court erred in terminating the spousal support award. {¶ 12} The sole assignment of error is granted. {¶ 13} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio is hereby reversed.

2022-09-09 23:54:30.378577+00

Denied

2016-07-06 06:36:05.745448+00

Blackmon

I respectfully dissent from the majority opinion. I would have reversed this case. Phyllis Daniels worked as a horse groomer for trainer Larry Hayes at Thistledown. Hayes and other trainers were allowed use of dormitory-style rooms located above the stables. Hayes assigned Daniels one of the rooms. The rooms were each ten feet by twelve feet in area, and had no windows, ventilation or plumbing. The sole entrance of each room had both a screen door and a solid wooden door. The screen door was equipped with a hook-type latch that could be locked from the inside. The wooden door was equipped with a latch that could be padlocked from the outside. *Page 288 After hours, security guards were stationed at Thistledown's main gate to keep unauthorized personnel from entering Thistledown property. All Thistledown personnel were issued identification cards which they were required to show when entering the grounds. On June 22, 1991, Daniels returned to her room around 11:00 p.m. after an evening out. She began to watch television and eventually fell asleep, forgetting to lock the door to her room. At around 2:00 a.m., William Holtkamp, a jockey who was also staying in one of the stable area rooms, returned to Thistledown and passed through the front security gate. Holtkamp told Thistledown security guards Joseph Galati and John Simko that he had just returned from a local bar. Galati smelled the alcohol on Holtkamp's breath and remarked to Simko that Holtkamp was "feeling no pain." Galati told Holtkamp to "be safe" and to "settle down." Holtkamp proceeded through the gate and went toward the living quarters. Holtkamp then went to Daniels's room, entered through the unlocked door and raped her. Daniels reported the crime to security who alerted local police. Holtkamp confessed to the rape and was sentenced to jail. Daniels filed this action against Thistledown and its security company alleging a negligent failure to maintain a safe workplace. Thistledown moved for summary judgment, arguing that it owed no duty to protect Daniels from the unforeseeable criminal acts of third persons. In support of her claim that the attack was foreseeable, Daniels introduced Thistledown's stable area incident reports for two years prior to her attack. She also produced, via affidavit, the expert opinion of Andrew Getner, a retired North Randall police sergeant, who stated that inadequate security at Thistledown proximately caused Daniels's injuries. According to Getner, Thistledown security guards were negligent in allowing Holtkamp to enter the premises when he was obviously intoxicated. He also opined that the presence of additional security personnel would have prevented the attack on Daniels. The trial court granted Thistledown's motion for summary judgment, finding that the attack on Daniels was unforeseeable and, consequently, Thistledown could not be held liable for Daniels's injuries. This appeal followed. I must begin my analysis with a brief overview of the law of summary judgment. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts, and written stipulations of facts show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). When evaluating a motion for summary judgment, the trial court must construe the evidence most strongly in favor of the nonmovant. Id. Consequently, doubts must be resolved in favor of the nonmovant. Murphy v.Reynoldsburg (1992), *Page 289 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138, 139-141. The nonmovant may not rest on his pleadings, however, but must produce evidence on any issue for which he bears the burden of production at trial. Wing v. Anchor Media of Texas, Ltd. (1991),59 Ohio St.3d 108, 111, 570 N.E.2d 1095, 1099. Daniels's complaint alleged that Thistledown negligently maintained her workplace and consequently created an unsafe condition. In a summary judgment situation, the nonmovant's burden is one of production of evidence. Here, Daniels had to go forward with evidence that Thistledown owed her a duty of care, that Thistledown breached that duty, and that her injuries were proximately caused by the breach. Hickman v. Warehouse Beer Sys.,Inc. (1993), 86 Ohio App.3d 271, 273, 620 N.E.2d 949, 950. The movant bears the burden of proving there is no genuine issue for trial. Here, I believe the movant failed to meet that burden. Daniels argues that the duty owed to her by Thistledown is as set forth in Restatement of the Law 2d, Torts, Section 344: "A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it." Comment b to Section 344 provides that the term "third persons" includes all persons other than the possessor of the land. It includes the possessor's servants when they are acting outside the scope of their employment as well as other invitees or licensees upon the premises. By this definition, Section 344 would cover Holtkamp's acts. However, the existence of a duty depends on the foreseeability of the harm. Reitz v. May Co.Dept. Stores (1990), 66 Ohio App.3d 188, 191, 583 N.E.2d 1071,1073-1074. Consequently, the issue is whether Daniels went forward with enough evidence to establish a genuine issue of fact as to whether the attack was foreseeable such as to impose upon Thistledown a duty to protect her from it. The totality of the circumstances should be considered when determining whether Thistledown knew or should have known that the attack on Daniels was likely to occur. Id. at 193,583 N.E.2d at 1074-1075. Evidence of prior criminal acts on the premises is probative of whether other crimes might occur in the future. Id. Daniels presented evidence that Thistledown was aware of prior criminal activity on Thistledown property including theft, assault, trespassing, and vandalism. The incident reports submitted by Daniels indicated that some of the crimes were committed by outsiders or trespassers while others were *Page 290 committed by Thistledown employees who, like Holtkamp, were entitled to be on the premises. The trial court found that, despite this knowledge, Thistledown could not have foreseen that Holtkamp would carry out such an attack. However, a possessor of land may "know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual." Restatement of Torts, Section 344, Comment f. "If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection." Id. Daniels went forward with evidence that Thistledown was aware of prior criminal acts committed on its property. As evidenced by its incident reports, Thistledown was aware that members of the Thistledown community were involved in crimes against one another, which included break-ins, assaults, and thefts. Although there was no evidence of any prior crimes committed by Holtkamp in particular, Thistledown had knowledge of past criminal conduct by other Thistledown personnel. Many of the incidents involved parties who were intoxicated. According to Daniels, the security guards at Thistledown rarely patrolled the area of the living quarters. Daniels's expert opined that Thistledown should have maintained better security in the area around the living quarters. Construing these facts in the light most favorable to the nonmovant, as is required when evaluating a motion for summary judgment, I find that reasonable minds could differ about whether the attack on Daniels was foreseeable to Thistledown. I also find a genuine issue of fact remained about whether Thistledown met its duty to Daniels as a business invitee to use reasonable care to maintain the premises in a safe condition. Daniels presented evidence that there were two doors on the entrance to her room — a solid wood door which could be padlocked from the outside and a screen door with a hook-type latch that could be secured from the inside. Daniels admitted that she did not lock her door on the night of the attack. However, the evidence indicates that the wooden door could not be locked from the inside. Even if the wooden door to her unventilated, windowless room could have been locked from the inside, Daniels argues it would not have been feasible for her to have closed the door on the warm, humid night of the attack. The only feasible way for Daniels to secure the door to her room to protect herself from intruders was by using the hook-type latch. In light of Thistledown's knowledge that Daniels's room had been broken into less than two months before the rape, I find that a material issue of fact was raised about *Page 291 whether Thistledown met its duty of reasonable care to safely maintain the premises for Daniels. Daniels's failure to engage the hook latch does not alter my decision. Daniels's contributory negligence, if any, does not automatically bar her claims for recovery. Issues relating to comparative negligence are to be resolved by a jury unless reasonable minds could not differ upon the evidence. Simmers v.Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 597 N.E.2d 504. Daniels also argues that Thistledown breached a statutorily defined duty of care. According to Daniels, Thistledown's security personnel were required to follow the guidelines of the Ohio State Racing Commission regulations. Daniels argues that Thistledown violated Ohio Adm. Code 3769-4-12, which provides for, among other things, around-the-clock patrol of a racetrack's stable area. Daniels also argues that Thistledown violated Ohio Adm. Code 3769-4-19 by failing to provide her with adequate and sanitary living quarters. Also, under Ohio Adm. Code 3769-4-57, Daniels argues Thistledown was authorized to remove any licensee from the grounds if his blood-alcohol level tested at or above .035. Daniels argues that Thistledown's breach of these regulations is, at least, relevant evidence on the issue of whether Thistledown breached its duty of ordinary care. I agree. The violation of an administrative regulation which expresses, in general or abstract terms, a rule of conduct is admissible evidence on the issue of lack of ordinary care. Zimmerman v. St.Peter's Catholic Church (1993), 87 Ohio App.3d 752, 756-757,622 N.E.2d 1184, 1186-1188. I must note that evidence of such violations, while relevant, does not constitute negligence per se. Whether a violation of an administrative regulation or statute constitutes negligenceper se depends on the nature of the obligation imposed. Id. at 761, 622 N.E.2d at 1190. The violation of a specific, detailed requirement may be negligence per se but the violation of a general or abstract requirement is not negligence per se. Id. Ohio Adm. Code 3769-4-19's requirement that Thistledown provide "adequate and sanitary" living quarters is general in nature, lacking specific requirements for compliance. Ohio Adm. Code 3769-4-57's prohibition of intoxicated jockeys from participating in racing is inapplicable here because Holtkamp was not participating in a horse race at the time of the attack. Ohio Adm. Code 3769-4-57's authorization of the removal of intoxicated licensee's from race track grounds does not impose a specific mandatory duty or obligation as is required for the application of negligence per se. Ohio Adm. Code 3769-4-12 provides that Thistledown shall maintain around-the-clock patrol of the track's stable area. There is no provision for the frequency of the patrols (i.e., every hour). Therefore, Thistledown is left with discretion as to how to comply with the regulation's requirement. The regulation is not the type of specific, absolute command the *Page 292 violation of which would be negligence per se. See id. at 762,622 N.E.2d at 1190-1191. Evidence of Thistledown's alleged failure to comply with Ohio Adm. Code 3769-4-12 and 3769-4-19 is relevant, but not determinative, of the issue of negligence. Having found that reasonable minds could differ about whether Thistledown breached its duty of care and whether the injury to Daniels was foreseeable, I would reverse the decision of the trial court.

2016-07-06 06:36:05.97966+00

Skeel

This case comes to this court by appeal on questions of law from the Court of Common Pleas. The plaintiff in her petition alleges that on the 11th day of May, 1940, at about three p.m. she had come out of The William Taylor Company store onto Euclid avenue. She was proceeding west. The street was very crowded. She had walked only a short distance *Page 200 when she claims to have stepped into a hole in the sidewalk, which caused her to fall and sustain certain injuries. After the jury had been impanelled and sworn, the court gave each juror an envelope which contained a few sheets of blank paper. The court explained to the jurors that he was going to permit them to take notes, if they so desired, during the progress of the trial. The court directed the jurors to seal whatever notes they made in the envelope, write their names over the seal and leave the envelope in the custody of the court upon adjournment, the notes to be returned to the jurors when the court should re-convene. The jury was further instructed that when they returned their verdict, the notes were to be collected by the court and destroyed in the presence of the jurors. The trial resulted in a verdict for the defendant. The plaintiff claims: (1) That the court erred in suggesting to the jurors that they could take notes during the progress of the trial, if they wanted to do so, and in furnishing the material for that purpose; (2) that the verdict is contrary to law and against the weight of the evidence; (3) that the court erred in the admission of evidence; (4) that the court erred in giving certain special instructions to the jury before argument at defendant's request; (5) that the court erred in its general charge to the jury; and (6) that the court erred in overruling the appellant's motion for new trial. The court's conduct in furnishing to the jurors materials for the taking of notes and suggesting to the jurors that they are permitted to take notes of the evidence, if they should so desire, to assist them when deliberating upon their verdict and prescribing the rules which they should follow if they did take notes of the evidence, presents a rather unique question. What case law there is upon the subject deals with the question *Page 201 of where a juror, without the suggestion of the court and in most instances without the court knowing about it, takes notes of the evidence during the conduct of the trial. In 39 Ohio Jurisprudence, 1062, Section 337, there is an attempt to state the rule as laid down by the cases, as follows: "In Ohio it seems to be proper or at least permissible for jurors to take notes during the court's charge or during the testimony and take these notes to the jury room, although some courts, in the absence of statute, seem to regard it misconduct for a juror to presume to do this." The latter part of this quotation is based on a statement of the rule in 2 Thompson on Trials (2 Ed.), 1868, Section 2585: "If a judge or referee were to try a cause without notes of the testimony, he would justly be regarded as derelict in the discharge of his duties; but, in the absence of statutes allowing jurors to take notes of the testimony, which, as hereafter seen, exist in some jurisdictions, for a juror to presume to do this is regarded by some courts as misconduct for which a new trial ought to be granted. The conception which supports this view is, that the jurors must `register the evidence on the tablets of theirmemory,' provided they are able to do so; and it is to be observed that, in the jurisdiction where the rule is laid down, it is also a rule that the jurors are not to take the written evidence with them. But, in order to make the fact available as ground for a new trial that a juror took notes of the evidence and read them in the jury-room, no objection having been made in court, it must appear that, not only the defendant, but also his counsel, was not aware that the juror took the notes; and, in the absence of a showing to the contrary, it will be presumed that they knew it and consented to it. Nor is the act of a juror *Page 202 in taking notes of the evidence, as it is given, misconduct sufficient to set aside the verdict, where he, upon being admonished by the court of the impropriety of his act, ceases taking his notes." See, also, Long v. State, 95 Ind. 481; Cheek v. State,35 Ind. 492-495; Cowles v. Hayes, 71 N.C. 230, at page 231; Burton v. Wilkes, 66 N.C. 604; Tift v. Towns, Exrx., 63 Ga. 237;Lilly, Admr., v. Griffin, 71 Ga. 535. The courts of Ohio have not passed directly on the question as presented in the instant case, where the court took the initiative in suggesting that the jurors could take notes of the testimony, even going to the extent of furnishing the necessary material to carry out the suggestion. But, as indicated by the citation in Ohio Jurisprudence, the courts have had presented to them the question as to whether it is misconduct, sufficient to require the reversal of a case, where a juror has taken notes during the course of the trial. The rule to be found from the decisions is that occasional note-taking by the jurors is not, under ordinary circumstances, such misconduct as would justify a reversal of the cause. In the case of W.H. Davis Die Co. v. Beltzhoover Electric Co.,40 Ohio App. 308, 178 N.E. 418, where the court, during the course of the charge, asked: "Has any one of the jury a pencil?" The record did not disclose whether the jurors had pencils, and if so, whether notes were taken, but it was claimed by counsel that notes were taken of the charge and that such notes were taken by the jurors to the jury room. On page 311 of the opinion, after quoting a part of the paragraph in Thompson on Trials,supra, the court said: "It is urged that the notes might be taken incorrectly and thus improperly influence the jurors in their deliberations. Certainly there would be as great danger *Page 203 of error upon the `tablets of their memory' as upon the tablets in their hands. In the days when fewer men could read or write it might have been possible for one who could do so to use these abilities improperly. Today it is hardly likely that such a state of affairs would exist. While the stability of rule and precedent is desirable, it is not so important as to require inflexibility in the presence of changed conditions, indicating the necessity, or at least reason, for adaptation to modern conveniences and practices adopted by men in the conduct of the ordinary affairs of life. "We find no prejudicial error in the remark of the court, even if followed by appropriate action stated by the plaintiff in error." In the case of B.H. Palmer Son v. Cowie, 7 C.C. (N.S.), 46, at page 53, 17 C.D., 617, the court noticed, during the course of the trial, that a juror was taking notes of the testimony, whereupon the court said: "I notice, gentlemen of the jury, that some of you have been taking notes of the testimony. The theory of the law is, that unless you all take notes of the testimony none of you should, so that some of the testimony will not be unduly emphasized in the jury room, and I will ask you to discontinue that." The record further discloses that one of the lawyers in the case filed an affidavit in which he stated that during the trial he observed a juror taking notes. There is nothing in the record of the case, however, to indicate whether the instructions of the court not to take notes were thereafter observed or whether the notes which were taken were destroyed or taken to the jury room upon submission of the case. The court, in concluding that such conduct was not misconduct sufficient to warrant the trial court to grant a new trial, said: "Judge Adams, in the 20th Circuit Court Reports, page 512 [11 C.D., 321], in the case of The C., C., C. St. L. Ry. Co. v.Ullom, Admx. — what he said appears *Page 204 on page 522 of the report — expresses grave doubt as to whether a juror is guilty of misconduct by taking notes. Speaking for myself alone, I entertain no grave doubt about it. Unless a juror is cautioned not to take notes I know of no rule, nor can I think of any principle, that would make it misconduct on the part of a juror to take notes, any more than on the part of a judge before whom a trial upon facts is being heard, and especially where there are several judges. "It is true that a juror might, by taking notes, have more information about the case in the jury room than a juror who did not take notes. It is equally true that there is a great difference in the intelligence of jurors. It is true that there is a difference in the memory, power of memory, of jurors and judges, and it is possible that it gives one juror an undue influence with his fellow jurors; but certainly until a caution is given it would seem to me a very remarkable thing that a juror should be said to be guilty of misconduct because he took down some notes of the evidence that was being introduced. There was no error in the court refusing the motion for a new trial upon that ground — misconduct of the jury in taking notes." This subject is dealt with in 64 Corpus Juris, at pages 1012 and 1013 under the title "Trial," Section 789. The rule is stated as follows: "If they do not thereby consume too much time, it is not improper for the jury to take notes of what is said, or occurs, during the trial, or to make, with permission of the court, memoranda of the articles in suit and the value placed thereon by the evidence. Counsel has no absolute right to have the jury take notes at his dictation, and the trial court in its discretion may refuse to allow this to be done." This statement of the rule is founded upon the case of Lilly,Admr., v. Griffin, 71 Ga. 535, at page 540, where the court held: *Page 205 "The practice of allowing the jury to take notes of calculations submitted by either of the litigants, or of what is `said' or `claimed' by either in argument, is no longer an open question in this court. In Tift v. Towns, 63 Ga. 237, 242, the point was ruled directly. Bleckley, J., delivering the opinion of the court, said: `It was not error to abstain from preventing one of the jurors from taking notes of what the plaintiff's counsel claimed, though the notes were taken at the request of the counsel during the argument, and while he read from a calculation which he had prepared. Of course this practice would be inadmissible, if attended with delay or undue consumption of time. * * * There is no power to compel any juror to comply with such request, and the counsel of either party is free to make it.'" In the case of Cheek v. State, 35 Ind. 492, which is cited as supporting the doctrine that it is misconduct for jurors to take notes, the court had instructed two jurors who had been observed taking notes `not to do so,' but the jurors in spite of the direct instruction of the court continued to take notes and took them to the jury room. The court held, on pages 494 and 495 of the opinion: "This disobedience of the order of the court was a gross violation of, and contempt for, the authority of the court, and was misconduct for which the jurors might have been severely punished, and of itself would entitle the defendant to a new trial. It was well calculated to divert the attention of the jurors, while they were busy, pencil or pen in hand, from the evidence, as it would naturally be progressing while such notes were being made. The juror is to register the evidence, as it is given, on the tablets of his memory, and not otherwise. Then the faculty of the memory is made, so far as the jury is concerned, the sole depository of all the evidence that may be given; unless a *Page 206 different course be consented to by the parties, or the court. * * * The jury should not be allowed to take the evidence with them to their room, except in their memory. It can make no difference whether the notes are written by a juror or by some one else. Jurors would be too apt to rely on what might be imperfectly written, and thus make the case turn on a part only of the facts." See also: United States v. Davis, 103 F., 457, at page 470;Chicago Northwestern Ry. Co. v. Kelly, 84 F.2d 569, at page 576; Miller v. Commonwealth, 175 Ky. 241, at page 245,194 S.W. 320; Commonwealth v. Tucker, 189 Mass. 457, 76 N.E. 127, 7 L.R.A. (N.S.), 1056. It will be seen from the foregoing authorities that while the taking of notes of the evidence by a jury is not looked upon as good practice by the majority of the courts of last resort, yet, where a juror has done so openly and under such circumstances that counsel must have been cognizant that notes were being taken, and no objection was interposed or a request made that the juror be instructed not to take notes, error could not be claimed when the trial court has refused to grant a new trial because notes were taken. The courts that find no misconduct on the part of a juror taking notes do so on the theory that by so doing the juror preserves for his better consideration testimony that might otherwise be overlooked during the deliberation of the jury. This is said to be particularly true where the cases are long and involved. On the other hand, the courts that hold that note taking constitutes misconduct do so on the theory that the taking of notes might tend to distract the juror's mind from the evidence which is being presented while the juror is busy with his notes. Unless the trial is delayed to afford time to make notes, such objection seems sound. It is suggested that courts universally take notes *Page 207 when trying a case without the intervention of a jury. This is true. But the judge having studied the pleadings and noted the issues, is in a much better position to take notes than the jurors who, except for the opening statements, are not told what the issues will be until all of the evidence has been received. Then, too, the judge can request the witness to stop while the court records what has gone on before. But if any such practice should be indulged in at the request of twelve jurors there would be an endless delay and trial lawyers frequently put to untold disadvantage in conducting a cross-examination. Not intending to modify the rule as set forth in the case ofDavis Die Co. v. Beltzhoover Electric Co., supra, and the earlier Ohio cases which find that there is no prejudicial error in permitting a juror at his own discretion to take an occasional note, and that when his conduct is discovered or observed it is within the discretion of the court whether he should be directed to stop or be permitted to continue, yet, where the court without the request of either of the litigants and in fact over their objections, as in the instant case, suggests to the jurors that they may take notes and furnishes to each juror, without such juror's request, the necessary materials for taking notes, together with instructions as to how they shall be kept during the trial, the court goes far beyond what is commonly accepted as good trial procedure, even in those jurisdictions where the right of jurors to take notes is fully recognized. Such conduct on the part of the court could easily be interpreted by the jurors as indicating that it is a part of their duty as jurors to take notes even though their personal aptitudes would disqualify them from attempting to try a case in that fashion. If trial procedure is to be changed to the extent as was done in this case, such change should be made by the Legislature and not by the courts. *Page 208 We find that appellant's claims of error in that the verdict is contrary to law and against the weight of the evidence and that the court erred in the admission of evidence is without foundation and such claims are therefore dismissed. Coming now to the court's charge — the appellant in her assignment of errors has included a claim of prejudicial error with regard to special charges given by the court before argument. However, the plaintiff has failed to mention this assignment of error in her brief, and we will therefore assume that such claim has been abandoned. The law of Ohio relative to the duty of a municipal corporation as to the care of the public streets and highways is controlled by statute, Section 3714, General Code, which provides as follows: "Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance." It is perfectly clear that a violation of the duty imposed by this statute sounds in nuisance and not in negligence. A nuisance signifies anything that causes hurt, inconvenience, annoyance or damage, while negligence is the failure to exercise ordinary care. These two terms are not synonymous. In Selden v. City ofCuyahoga Falls, 132 Ohio St. 223, 6 N.E.2d 976, the third paragraph of the syllabus provides: "The term `nuisance' is not synonymous with negligence and does not necessarily rest upon the degree of care used, although a nuisance may be and frequently is the consequence of a negligent act." *Page 209 In six different places, the charge of the court, in the instant case, referred to the duty of the plaintiff to show that the defendant was "negligent in one or more of the ways claimed" in her petition, by the proper degree of proof before she would be entitled to a verdict. There is no duty on the part of the plaintiff to show, by any degree of proof, that the hole in the sidewalk was the result of any negligence on the part of the defendant. If there was, in fact, a hole in the sidewalk of such magnitude that it was capable of causing hurt, inconvenience, annoyance or damage to sidewalk users, then a nuisance did in fact exist, no matter what the conduct of the city had been with regard to it. And, if the city, through its proper agents, knew that such hole was there a sufficient length of time prior to the claimed accident so that by the use of due diligence repairs could have been made or the public protected from the danger thereof, or, if such hole was there for such a length of time that by the exercise of due diligence it could be said that the city should have known thereof in time to, by the exercise of due diligence, make the necessary repairs or protect the public from the danger thereof, before the time when it is claimed the appellant was injured, then, and in that event, liability could be established against the city for any damage sustained as a proximate result of such nuisance if the claimant was, under the circumstances, in the exercise of ordinary care for her own safety. The court's charge placed a far greater burden upon the plaintiff than would be required under the rule as just stated. In this regard, therefore, the rights of the plaintiff were materially prejudiced. One other part of the charge must be considered. The court charged the jury in part as follows: "Referring once again to what I said at the outset, the plaintiff to make a case must prove negligence in one or more respects by the preponderance of the evidence. *Page 210 She must show that while she was in the exercise of ordinary care for her own safety, she was injured as a proximate result of the negligence of the defendant in one or more respects as set forth in her petition." There is no duty on the part of the plaintiff to show by a preponderance of the evidence that she was in the exercise of ordinary care for her own safety before she is entitled to recover. The court, in another part of the charge, just preceding this paragraph, correctly stated the rule but does not correct the damage. In the case of Industrial Commission v. Ripke, 129 Ohio St. 649, 196 N.E. 640, paragraph 2 of the syllabus, the court stated: "Where the court states a correct rule, and in another portion of the charge states an incorrect rule upon the same subject, and nothing further is stated to indicate to the jury which rule is to be followed, and there is nothing in the verdict of the jury to indicate which rule was in fact followed, no presumption arises that they have followed the correct rule, and the error will therefore be deemed to be prejudicial." See, also, Booksbaum, a Minor, v. Christian, 53 Ohio App. 384,5 N.E.2d 177. For the reasons, therefore, first of the manner in which the jury was addressed by the court as to taking notes, and second because of error in the charge of the court upon the law in the particulars as herein set forth, the judgment of the Common Pleas Court is reversed and the cause is remanded for further proceedings according to law. Judgment reversed. MORGAN, P.J., and LIEGHLEY, J., concur. *Page 211

2016-07-06 06:36:06.872176+00

Painter

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 806 {¶ 1} Defendants-appellants, the city of Cincinnati, Cincinnati City Manager Valerie Lemmie, and the Cincinnati Civil Service Commission (collectively, "the city"), appeal the trial court's grant of summary judgment in favor of plaintiff-appellee Michael Fern. We reverse. {¶ 2} Fern, a Cincinnati police sergeant, took a promotional exam for Cincinnati Police lieutenant. After receiving the results, Fern challenged the grading of the exam. The Civil Service Commission refused Fern's request for a hearing, *Page 807 stating that under this court's decision in Steers v.Cincinnati,1 challenges to specific exam questions by candidates were not permitted. Fern then filed an original action for a writ of mandamus and also appealed the commission's ruling to the common pleas court. The trial court granted summary judgment to Fern and retroactively promoted him to police lieutenant. {¶ 3} We agree with the trial court that Steers does not control the outcome of this case. Furthermore, we hold thatSteers is no longer good law and overrule it. We hold that the Civil Service Commission can and should address the merits of a challenge by a police examinee to a police promotional exam. But because it is the commission's role to address such challenges, and because the trial court did not have before it the complete examinations of all applicants who took the promotional exam with Fern, we reverse the trial court's order granting summary judgment. {¶ 4} We remand the case to the Civil Service Commission for it to consider the merits of Fern's challenge of two specific questions on the exam. And should the commission makes any changes to the answer key for the exam, we order the commission to regrade all examinees' scores and to produce a new promotion list that reflects the changes for all examinees. I. DISPUTED ANSWERS {¶ 5} In 2003, Fern, a Cincinnati police sergeant, took the promotional exam for the position of lieutenant, along with at least 45 other examinees. The exam was administered and graded by the Cincinnati Civil Service Commission. The resulting promotional eligibility list showed that Fern had placed ninth on the exam. {¶ 6} After reviewing his examination and answer key, Fern told the commission that he believed his test had been inaccurately graded. Specifically, Fern challenged the commission's answers for five exam questions. {¶ 7} The commission told Fern that his test results would not be changed, so Fern filed an appeal with the commission. Rather than holding a hearing, the commission simply informed Fern that, under the Steers case, challenges to specific exam questions by candidates were not permitted. Believing that it lacked jurisdiction to consider the appeal, the commission simply denied it. {¶ 8} Fern appealed the commission's decision to the common pleas court. Unsure of whether the commission's decision was a final, appealable order, Fern also filed an original action for a writ of mandamus in the common pleas court. *Page 808 {¶ 9} At this point, despite its assertion that, underSteers, it could not consider any challenges to specific exam questions, the commission did just that. Margaret Key, a senior human-resource analyst employed in the commission's human-resources department, reviewed the five questions in dispute. She determined that for two questions, two answers could be correct and gave Fern credit for two additional correct responses. Upon further review, Key determined that a third question in dispute also had two correct answers. Therefore, the commission gave Fern credit for three of the five disputed questions. {¶ 10} In an affidavit, Key asserted that she regraded the promotional exam for all examinees, taking into account the multiple correct answers on the three questions. Key determined that after the changes, Fern would have ranked fifth on the promotion-eligibility list. Because only four sergeants were promoted from this particular eligibility list before its expiration, the commission determined that Fern still did not qualify for promotion. {¶ 11} At the hearing on both parties' summary-judgment motions, the trial court apparently determined that Steers did not control the outcome and that Steers did not prevent the city from addressing Fern's challenge to the exam. The bulk of the hearing was spent discussing the merits of the two remaining disputed questions. {¶ 12} Fern asserted that a finding that he had either one of the two disputed questions correct would make him eligible for promotion. The city disagreed with that assertion, arguing that Fern's calculations selectively adjusted his own score without regrading the exam for all examinees. The city urged the court to remand the case to the commission to allow it to consider the merits of Fern's challenge and to regrade the exams for all examinees should any further changes be made. {¶ 13} Stating that it would be a "waste of time" to remand the case to the commission, the trial court agreed with Fern that one of the remaining disputed questions was unclear. The court then granted Fern's summary-judgment motion and promoted him to police lieutenant, retroactively and with full back pay. II. STEERS {¶ 14} When Fern first challenged his grade on the promotional exam, the city's position was that under Steers, challenges to specific exam questions by candidates were not permitted.Steers is a 1992 decision by this court that, upon examination, is no longer good law. {¶ 15} Steers involved the Cincinnati Police promotional exam for lieutenant given in 1987. After administering the exam, the commission conducted hearings, *Page 809 referred to as "gripe sessions," that allowed examinees the opportunity to voice their protests about the examination. As a result of these hearings, the commission made various changes to the examination, including the deletion of 20 questions and the allowance of multiple answers to three other questions.2 {¶ 16} Daniel Steers, an examinee, saw the commission's changes reduce his standing on the promotion-eligibility list from first or second to 15th place. Steers sued the city and the commission, arguing that the commission's actions were unconstitutional and unreasonable. Steers sought a declaratory judgment and an order enjoining the appointment of certain police officers. The trial court granted summary judgment for Steers, and this court affirmed.3 {¶ 17} In Steers, we began our analysis by noting that the Ohio statutes pertaining to the civil service controlled the powers of the commission unless the city's charter provided otherwise.4 For that assertion, we relied on the Ohio Supreme Court's discussion in State ex rel. Bardo v.Lyndhurst.5 {¶ 18} In Bardo, the Ohio Supreme Court stated the general rule that "in matters of local self-government, if there is a conflict between a charter provision and a statute, the charter provision prevails."6 The Bardo court then refined the general rule, stating, "Although the Constitution gives municipalities the authority to adopt home rule, local self-government, the exercise of those powers by the adoption of a charter should clearly and expressly state the areas where the municipality intends to supersede and override general state statutes. Accordingly, we hold that express charter language is required to enable a municipality to exercise local self-government powers in a manner contrary to state civil service statutes."7 {¶ 19} In Steers, we discussed that the commission had promulgated Section 6, Rule XI, which set forth procedures for objecting to promotional examinations administered to the police and fire departments. We then noted that R.C. 124.45, which pertains to promotional exams for firefighters, provided that examinees could protest the grading of their exams within five days, while R.C. 124.44, pertaining to police-officer promotional exams, had no corresponding provision *Page 810 concerning an examinee's ability to protest the police exam. We then stated that the city and the commission had failed to cite any authority within the city's charter that authorized the commission to adopt Rule XI. {¶ 20} As a result, the commission rule that detailed how a police officer should challenge his grade on a promotional exam was deemed unconstitutional and apparently struck down in reliance on Bardo.8 The trial court later ordered the commission to restore 17 questions to the promotional exam.9 It also ordered the commission to regrade the exam "based on the original answer grid, without regard for any action taken by the Cincinnati Civil Service Commission as a result of `gripe sessions,'" and to establish a new promotion-eligibility list.10 {¶ 21} Since the Steers case, the city's position when faced with a challenge to a police promotional exam from an examinee has been that it is not permitted to consider the challenge for lack of jurisdiction. The result is that even when presented with blatant evidence of errors in the questions or the grading of an exam, the city cannot rectify its mistakes and adjust examinees' scores. {¶ 22} In this case, the city is put in the unenviable position of relying on Steers to prevail, yet practically conceding thatSteers should be overruled. As the losing party in Steers, the city no doubt does not favor the continuation of a decision that has essentially tied its hands in how it can conduct its police promotional exams. {¶ 23} On the other hand, Fern does not advocate the overruling of Steers. He argues instead that Steers can be distinguished. Fern contends that Steers prohibited only "gripe sessions." He asserts that because he never requested to have any questions removed from the exam, his situation is distinct. {¶ 24} We think there is no distinction between the regrading of an exam by removing certain questions and the regrading of an exam by allowing multiple answers on certain questions. We agree with the city's interpretation of Steers. The original Steers decision and the subsequent Steers cases (resulting from the significant litigation from the 1987 police promotional exam) made it clear that the city could not change the answers or the grading of a police promotional exam after it released the results. Under Steers, the city's attempt to rectify unfairness or errors in the questions and grading of a police promotional exam was struck down, and the city was left without jurisdiction to address future challenges *Page 811 by examinees to an exam. Of course, it is unfortunate that the exams evidently continue to have unclear or misleading questions. {¶ 25} For reasons of common sense and fairness, this simply cannot continue to be the law. More important, subsequent Ohio Supreme Court decisions clarify that the drastic remedy ofSteers is not the correct interpretation of the law. {¶ 26} The problem with Steers is that there was no need for the city charter to specifically authorize the commission to address an examinee's challenge to a police promotional exam. InBardo, the court stated, "[S]ome form of charter authorization is necessary to enable municipalities to adopt ordinances or administrative rules that will prevail over statutory provisions in case of conflict."11 (Emphasis added.) The rule of Bardo applies only when there is a conflict between state law and local law. {¶ 27} In McArthur v. DeSouza, decided later in the same year as Steers, the Ohio Supreme Court stated that "state law neither authorizes nor prohibits an applicant from contesting his promotional examination grade."12 The court held that because there was no actual conflict between state law and the local city charter, the local commission had the authority to promulgate a rule that was not inconsistent with state law.13 {¶ 28} In this case, we must examine the state law concerning the administration of police promotional exams and the Cincinnati charter to determine whether there is a conflict. If there is not, then the commission rules promulgated on the subject that do not conflict with state law are valid. {¶ 29} Under R.C. 124.44, promotions within a municipal police department must be made based on performance on a competitive exam. The statute addresses a few specific situations, such as when there are fewer than two persons eligible to compete, when a person's salary has been increased beyond that fixed for a particular rank, and when a vacancy occurs without an existing eligibility list. The statute then states that if there is an eligibility list, the commission should appoint the person with the highest rating. The statute concludes by stating that no credit for seniority is given unless the applicant achieves at least the minimum passing grade on the exam. That is all the statute says. {¶ 30} The Cincinnati charter states very little about the Civil Service Commission or police promotional exams. In Article II, Section 1, it vests all legislative *Page 812 powers in the city council and then states, "The laws of the state of Ohio not inconsistent with this charter, except those declared inoperative by ordinance of the council, shall have the force and effect of ordinances of the city of Cincinnati; but in the event of conflict between any such law and any municipal ordinance or resolution the provisions of the ordinance or resolution shall prevail and control." {¶ 31} Article V, Section 1 creates the Civil Service Commission. In Section 3, the charter states, "Except as provided in this charter, the council shall have no power to modify the provisions of the laws of the state of Ohio now or hereafter in effect relating to the civil service and civil service commissions." In Section 5, titled "Police Force," it lists the ranks of the members of the police force and discusses the positions of police chief and assistant police chief. It then authorizes the council to establish special positions in the police force as needed. Nothing is stated regarding the administration or grading of promotional exams. {¶ 32} Clearly, nothing in the charter conflicts with state law. The charter does not attempt to supersede or override state statutes in the area of police promotional exams. {¶ 33} Under McArthur, because there is no conflict between state law and the local city charter, the local commission has the authority to promulgate rules that are not inconsistent with state law. Steers looked at it exactly backwards. Instead of looking to the city charter for specific authorization for the commission to correct errors in the police promotional exam, we need to look at the charter only to see whether it conflicts with state law. Because it does not, the commission is free to promulgate rules not inconsistent with state law that allow it to do its job. {¶ 34} Cincinnati Civil Service Commission Rule 2, Section 4, titled "Powers and Duties of the Commission," states that the commission "is required to administer and enforce the State Civil Service Laws and its own rules which sustain the State Civil Service Laws. As an administrative body, it is responsible for the legal advertising of all entrance and promotional civil service examinations; the conduct and grading of these examinations, the determination of rules and regulations governing examination conduct and other matters covered in the State Civil Service Laws." {¶ 35} Rule 10, Section 6, titled "Inspection of Examination Papers," states, "After the grading of such examination papers, any participant in the examination who deems his examination papers have been erroneously graded, shall have the right to appeal to the Commission." Similarly, Rule 17, Section 2 states, "An employee may appeal the results of a classification study, rejection of application, or the grading of an examination by filing a notice of appeal with the Civil Service Commission." *Page 813 {¶ 36} Rule 10, Section 6, concerning the inspection of exam papers, continues with a section designated only for the fire-department promotional exams. It states, "[I]n the case that the Commission finds an error in the rating key or answer, it shall publish a revised rating key or answer. The revised rating key or answer shall then be available to participants subsequent to such determination of error or errors." We believe that this is a sensible rule and that the commission is authorized to make it. {¶ 37} This distinction in the commission rule between fire—and police-department promotional exams mirrors the same inexplicable distinction made in the state laws, R.C. 124.44 and 124.45. As noted in Steers, the two statutes, pertaining to the police and fire department promotional exams respectively, are very similar, but the fire statute has an extra section addressing challenges to the grading of an exam. The fire statute specifically allows the examinee to inspect the exam within five days and to file a protest. The fire statute then states that if the commission finds an error, it should publish a revised rating key and make it available to the participants. The police statute states nothing regarding any protest to the police exam. {¶ 38} But though the state law does not specifically order the commission to allow police examinees to inspect and protest their exams, lack of an order does not mean they cannot. On the contrary, as the McArthur court stated, there is nothing in state law that prohibits a police applicant from contesting his promotional examination grade. {¶ 39} Therefore, under the general authority given to the commission to administer and grade the promotional exams, and under the commission rules that allow an applicant to appeal the grading of an examination, the commission can and should address challenges made to the exam and correct unfairness and obvious errors in the questions and grading of the exam. The commission's authority in no way conflicts with the authority granted to it by state law. Because there is no inconsistency, the authority is not unconstitutional. {¶ 40} In State ex rel. Brenders v. Hall,14 decided several years after Steers, the Ohio Supreme Court considered a police officer's challenge to a particular question on a police promotional exam. Without any discussion of whether the city charter or local commission rules allowed the officer to challenge the exam results, the court considered the merits of the officer's argument. {¶ 41} The officer argued that the particular question lacked objective support and was inconsistent with the assigned study materials, making the entire exam *Page 814 not "competitive," in violation of the Ohio Constitution and several Ohio statutes. The court discussed what was meant by "competitive exam." {¶ 42} The court then decided that "the administration of competitive examinations is a primary function of municipal civil service commissions."15 Based on this holding, the court held that though "question 11 of the Brook Park police lieutenant promotional examination is perhaps not a paragon of civil service test drafting," it should defer to the commission's determination of the correct response to the question.16 The court concluded that one possibly unclear question out of 145 questions did not make the exam uncompetitive. {¶ 43} We emphasize that the court did not even question the commission's authority to change the exam results. The court made it clear that the commission's decision was reviewable — under an abuse-of-discretion standard — but no mention was made of the need for specific charter authorization of local commission rules to address challenges to a police promotional exam. {¶ 44} We favor the simple reasoning of a 1977 case from the Eighth Appellate District, Aldrich v. Brecksville.17 InAldrich, Aldrich and one other person took the promotional exam for Police Chief of Brecksville, Ohio. After the two received identical scores, Aldrich disputed five exam questions, alleging that the answer key was incorrect. {¶ 45} The Brecksville Civil Service Commission disallowed Aldrich's protest of four of the questions and removed one question from consideration, finding that it was "unclear," "ambiguous," or "tricky."18 Aldrich appealed. The trial court ordered the commission to reinstate the withdrawn question and to give Aldrich full credit for the correct answer, resulting in Aldrich obtaining the highest rating on the examination. {¶ 46} On appeal, the Eighth Appellate District affirmed. The court stated, "A decision to change the test questions afterwards is a matter within the discretion of a civil service commission but that discretion may not be exercised arbitrarily, capriciously, [or] unreasonably * * *. For example, a question may be removed if it is so ambiguous as to render it meaningless or unfair."19 *Page 815 {¶ 47} The court concluded that it had reviewed the commission's ruling under R.C. Chapter 2506, which allows for appeals from administrative hearings.20 The court did not examine the Brecksville city charter for specific authorization of the commission to adjust the exam results. The court held that the commission had the authority to correct a test that was not administered correctly or fairly but that the commission's decision was subject to appellate review under an abuse-of-discretion standard.21 {¶ 48} With Steers overruled, Aldrich demonstrates the correct procedure for a challenge by a police examinee to a promotional exam. By overruling Steers, we also overrule the city's first assignment of error. We now turn to other issues in Fern's case. III. DIRECT APPEAL WAS CORRECT {¶ 49} Because, under Steers, the city lacked jurisdiction to consider Fern's challenge to the promotional exam, when Fern filed an appeal with the commission, the commission simply denied it. The commission did not hold a hearing or allow any evidence to be presented. {¶ 50} Fern appealed the commission's decision to the trial court, but the city argued that Fern lacked a final, appealable order from which to appeal. The city contended that because there had been no administrative quasi-judicial hearing, the trial court lacked jurisdiction over Fern's appeal. That is not so. {¶ 51} To be appealable under R.C. 2506.01, an administrative decision must be rendered in a quasi-judicial proceeding.22 The earmarks of a quasi-judicial proceeding include requirements of notice, a hearing, and an opportunity to introduce evidence.23 "Whether there is an adjudication depends not upon what the administrative agency actually did, but rather upon what the administrative agency should have done. Where the administrative agency should have given notice, conducted a hearing and afforded the parties an opportunity to be heard and to introduce evidence, the order is the result of an adjudication even if the administrative fails to afford such notice and hearing."24 *Page 816 {¶ 52} Cincinnati Civil Service Commission Rule 17 concerns appeals to the commission. Section 3 states that written notice should be given to the parties 30 days before their hearing. The parties must notify the commission of potential witnesses. Section 5 states that the commission should hear evidence upon the charges and outlines the order of the presentation of evidence. {¶ 53} The commission rules required the commission to conduct a quasi-judicial hearing for Fern's appeal. Its failure to hold a hearing did not mean that the commission's decision was not subject to appellate review. When the commission denied Fern's appeal, the decision was a final, appealable order from a quasi-judicial hearing. {¶ 54} Therefore, Fern properly appealed the commission's decision to the trial court under R.C. Chapter 2506. We understand why, in an abundance of caution, Fern also sought a writ of mandamus in the trial court. But the writ was unnecessary and could not have been issued because Fern had an adequate remedy at law.25 {¶ 55} While the trial court's decision was not explicit, it apparently properly reviewed the commission's decision under R.C. Chapter 2506. On appeal to this court, we must determine whether, as a matter of law, the trial court's decision was supported by a preponderance of reliable, probative, and substantial evidence.26 IV. TRIAL COURT'S DECISION {¶ 56} The trial court correctly determined that Steers should not have denied Fern's ability to challenge questions on the promotional exam. The trial court then discussed the merits of the two disputed questions and ruled in Fern's favor, ordering his promotion to lieutenant. For several reasons, we conclude that the trial court should have instead remanded the case to the commission for it to determine the merit of Fern's challenges and to regrade the examination for all examinees, if necessary. {¶ 57} First, the trial court mistakenly believed that a finding that Fern had answered one more question correctly would sufficiently resolve the case. At oral argument, Fern's counsel read to the court the first disputed question and then summarized the other disputed question. The court then asked, "What one of the two questions would give him a promotion?" Fern's counsel responded *Page 817 that if Fern received a correct answer for either question, he would be entitled to a promotion. {¶ 58} The court then asked for argument from the city. The court became frustrated with the city's defense of Steers and stated directly to Fern, "Why would you want to be a policeman? The City Council doesn't back you up and the City completely mistreats you. Messes up on their exam and doesn't rectify it." {¶ 59} The court then discussed with the city the first disputed question. The city argued that a word missing from the question was unnecessary because it was obvious what the missing word was. The court responded, "You can't do that. You can't do that. You can't say that." {¶ 60} The city then argued that Fern wanted to selectively adjust his own score without a regrading of the exam for all examinees. The city argued that the case should be remanded to the commission for it to regrade all the exams, contending that it would not be fair for Fern to benefit from a changed answer, while other examinees who answered similarly would not. The trial court agreed that that would not be fair. {¶ 61} The court then stated no fewer than five separate times that remanding the case would be a "waste of time." The court took the arguments under submission and issued a written decision two weeks later. The decision, without any discussion, granted Fern's summary-judgment motion and ordered that he be promoted retroactively. {¶ 62} It can be gleaned from the transcript that the trial court found that the first disputed question was unclear and that Fern should have received credit for it. But the record before the trial court did not contain the other examinees' responses on that question. It is clear that the trial court did not have the ability from the record to recalculate all examinees' scores after changing the answer, nor was it able to produce a new promotion-eligibility list. Only the commission could have calculated the effect on the rankings when the answer key was changed. And the commission never made new calculations based on either the fourth or fifth disputed question being changed. {¶ 63} Because the trial court did not have all the examinees' tests and had no way to know how changing the answer key would affect the overall ranking of the examinees, we conclude that the trial court could not make a final determination in the case. {¶ 64} For example, Fern had to have placed among the top four scorers on the exam to get promoted. But there is nothing in the record, beyond Fern's assertion, that proves that Fern would have been among the highest four scorers on the exam if he were credited with one more correct answer. The commission *Page 818 simply never did the math. It is possible that even if Fern is credited with one or two more correct responses, the four officers ranking ahead of him would also be credited with those same correct responses, resulting in no advancement for Fern on the promotion-eligibility list. {¶ 65} And even if Fern does end up among the four highest scorers, it is possible that another officer on the list would also have placed among the top four scorers if credited with one or two additional correct responses. If so, that officer should also have been promoted. Even the trial court acknowledged that it would not be fair to allow only Fern, and no other examinee, to benefit from a change in the answer key. {¶ 66} But the crux of the matter is that it is really not the trial court's role — or ours — to determine the correct answers to a police promotion-examination or to calculate what officers are entitled to promotion. That is exactly the role of the Civil Service Commission. And due to the confusion from Steers, the commission never fulfilled its role. Because of Steers, Fern never received a quasi-judicial hearing before the commission on the merits of his challenges to the exam. {¶ 67} The Ohio Supreme Court stated in Brenders, "Courts should not be `drawn into preparing, revising and correcting questions in Civil Service examinations, supervising the examinations, and finally rating the papers.'"27 The court further held, "State courts will generally not intervene in municipal civil service commission matters in the absence of an abuse of discretion," emphasizing that a court "may not substitute its opinion for that of the [commission]."28 {¶ 68} But in this case, there was no opinion by the commission in the first place. There was no opinion for which a court could substitute its judgment. The city has argued since the beginning that, under Steers, it was not obligated to even consider Fern's protest and has never held a full hearing on his claim. And while the city submitted Margaret Key's affidavit, it represented only one civil service employee's reevaluation of the test answers. That cannot compare to a full hearing before the commission in which Fern would be entitled to present evidence and to argue his point of view. {¶ 69} We must remand this case to allow the commission to do its job, as it should have done in the first place, if not forSteers. {¶ 70} And to be fair (and to prevent possible future litigation by other police examinees), the issue in this case is not only to determine whether Fern is *Page 819 entitled to a promotion. The city must reach a fair and final scoring of the exam and grade the exam for all examinees if any changes are made to the answer key. Any examinee who scores among the top four on the exam should be entitled to promotion. (We note that the original four highest scorers who have already been promoted to lieutenant do not face possible demotion, as their rights have vested in their new positions.)29 {¶ 71} Therefore, we hold that the trial court's decision was not supported by a preponderance of reliable evidence and sustain the city's second and third assignments of error. We reverse that decision and remand this case to the commission to hold a full hearing on the merits of the two disputed questions only. We caution the commission not to focus on Fern's role in forcing the reevaluation of the exam, but encourage the commission to seek a fair and final answer key and promotion-eligibility list for all examinees. {¶ 72} It is the commission's role to determine the substantive issues for a civil-service-promotion exam. Overruling Steers and remanding this case allow the commission to do its job. Judgment reversed and cause remanded. SSUNDERMANN and HENDON, JJ., concur. 1 Steers v. Cincinnati (1992), 78 Ohio App. 3d 437,605 N.E.2d 400. 2 Steers v. Cincinnati (Sept. 18, 1996), 1st Dist. No. C-940946, 1996 WL 526661. 3 Steers, 78 Ohio App. 3d 437, 605 N.E.2d 400. 4 Id. at 439, 605 N.E.2d 400. 5 State ex rel. Bardo v. Lyndhurst (1988),37 Ohio St. 3d 106, 109, 524 N.E.2d 447. 6 Id. at 109-110, 524 N.E.2d 447. 7 Id. at 110, 524 N.E.2d 447. 8 Steers, 78 Ohio App. 3d 437, 439-440, 605 N.E.2d 400. 9 Steers, 1st Dist. No. C-940946, 1996 WL 526661. 10 Id. 11 Bardo, supra, 37 Ohio St.3d at 109, 524 N.E.2d 447. 12 McArthur v. DeSouza (1992), 65 Ohio St. 3d 25,599 N.E.2d 268, fn. 2. 13 Id. 14 State ex rel. Brenders v. Hall (1995),71 Ohio St. 3d 632, 646 N.E.2d 822. 15 Id. at 636, 646 N.E.2d 822. 16 Id. 17 Aldrich v. Brecksville (Mar. 10, 1977), 8th Dist. No. 35678, 1977 WL 201246. 18 Id. 19 Id. 20 Id. 21 R.C. 2506.04. 22 See M.J. Kelley Co. v. Cleveland (1972),32 Ohio St. 2d 150, 61 O.O.2d 394, 290 N.E.2d 562, paragraph one of the syllabus; McArthur, supra, 65 Ohio St.3d at 28,599 N.E.2d 268. 23 See M.J. Kelley Co., supra, at paragraph two of the syllabus; Lakota Local School Dist. Bd. of Edn. v. Brickner (1996), 108 Ohio App. 3d 637, 644, 671 N.E.2d 578. 24 In re Howard (1991), 73 Ohio App. 3d 717, 719,598 N.E.2d 165. 25 See State ex rel. Berger v. McMonagle (1983),6 Ohio St. 3d 28, 29, 6 OBR 50, 451 N.E.2d 225. 26 See Kisil v. Sandusky (1984), 12 Ohio St. 3d 30, 34, 12 OBR 26, 465 N.E.2d 848. 27 State ex rel. Brenders, supra, 71 Ohio St.3d at 635,646 N.E.2d 822, quoting Blumenthal v. Morton (1948), 273 A.D. 497,503, 78 N.Y.S.2d 302. 28 Id. at 636, 646 N.E.2d 822. 29 See Steers v. Cincinnati (Sept. 18, 1996), 1st Dist. No. C-940946, 1996 WL 526661; State ex rel. Habe v. Euclid (1990),56 Ohio St. 3d 117, 119, 564 N.E.2d 483.

2016-07-06 06:36:07.170629+00

Karpinski

Relator is an employee of respondent board of education ("board"). Relator requests that this court issue a writ of mandamus compelling respondents — the board, its superintendent, and its treasurer — to compensate her for back pay and benefits, as well as to make future payments to her, in accordance with the board's salary schedule for teachers rather than the hourly rate paid to learning assistants. Pursuant to this court's order, the parties filed stipulations. Additionally, we appointed a commissioner to hear disputed issues of fact. A transcript of the hearing before the commissioner was filed with the clerk ("Tr."), the commissioner filed her findings of fact, and the parties filed briefs. Having reviewed these materials as well as the pleading and exhibits, we deny relator's request for relief in mandamus. Relator has been an employee of the board since 1979. From 1979 to 1981, she worked as a tutor in a program for gifted and talented elementary-age students. The stipulations stated the following: *Page 532 "2. From 1981 to the present, Relator has been assigned to the high school to work with students who require additional educational assistance. From 1981 to 1989, the position held by Relator was entitled `tutor.' This position did not require a teacher's certificate pursuant to state law or regulations. "3. In August of 1989, the tutor position to which Relator was assigned was retitled `learning assistant,' which is a term used by Rocky River Schools for educational aid [sic] positions governed by O.R.C. § 3319.088. Relator's assignment at the high school essentially remained unchanged in all material respects; however, she was required to obtain an educational aide permit in accordance with O.R.C. 3319.088. With the exception of maintaining an educational aide permit, the position of learning assistant does not require any special license or teaching certificate. "4. Relator currently holds a standard provisional teaching certificate for grades 1 through 8. She has never held a high school teaching certificate. She also holds an educational aide permit * * *." "It is well-settled that a claim by a public employee of entitlement to wages or benefits which are granted by statute or ordinance is actionable in mandamus." State ex rel. Villari v.Bedford Hts. (1984), 11 Ohio St. 3d 222, 223, 11 OBR 537, 538,465 N.E.2d 64, 65. In order to maintain her action in mandamus, relator must establish that she has a clear legal right to be compensated as a teacher, respondents have a clear legal duty to compensate her as a teacher, and she has no adequate remedy at law. Cf. State ex rel. Savarese v. Buckeye Local School Dist.Bd. of Edn. (1996), 74 Ohio St. 3d 543, 544, 660 N.E.2d 463, 465. In order to determine whether relator has a clear legal right to the relief requested and whether respondents have a clear legal duty to provide that relief, we must examine the relevant statutes. "In construing a statute, the court's paramount concern is legislative intent. State ex rel. Solomon v. Police Firemen'sDisability Pension Fund Bd. of Trustees (1995), 72 Ohio St. 3d 62,65, 647 N.E.2d 486, 488. "In determining legislative intent, the court first looks to the language in the statute and the purpose to be accomplished." State v. S.R. (1992), 63 Ohio St. 3d 590,594-595, 589 N.E.2d 1319, 1323. If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary. State exrel. Herman v. Klopfleisch (1995), 72 Ohio St. 3d 581, 584,651 N.E.2d 995, 997." Savarese, supra, 74 Ohio St.3d at 545,660 N.E.2d at 465. As was noted above, relator has been working with high school students *Page 533 throughout the relevant time period.1 Yet she has never held a high school certificate. The statutory analysis by the Supreme Court of Ohio in State ex rel. Chavis v. Sycamore City SchoolDist. Bd. of Edn. (1994), 71 Ohio St. 3d 26, 641 N.E.2d 188, demonstrates that these circumstances require that we deny relief. In Chavis, the relators were fourteen tutors. Eleven of the relators provided supplemental instruction to learning disabled students. The other three provided supplemental instruction in English as a second language ("ESL"). The relators requested relief in mandamus to compensate them for the difference in their pay as tutors and the pay of teachers set forth in collective bargaining agreements. The Chavis court considered whether the relators were "teachers for purposes of the statutes relating to teacher salaries, R.C. 3317.13 and 3317.14." Id. at 30,641 N.E.2d at 193. The standard for determining whether a person is a teacher is the definition in R.C. 3317.13(A)(2), which provides: "`Teacher' means all teachers employed by the board of education of any school district * * *." Id. The Supreme Court also observed that "R.C. 3317.13(A)(2) must be read in conjunction with R.C. 3319.30." Id. R.C. 3319.30, provides in part: "Except as provided in section 3319.36 of the Revised Code [which, in subsection B, authorizes the payment of teachers who are not certificated but who have received a permit to teach from the state board of education pursuant to R.C. 3319.301], no person shall receive any compensation for the performance of duties as teacher in any school supported wholly or in part by the state or by federal funds who has not obtained a certificateof qualification for the position as provided by section 3319.22 of the Revised Code * * *." (Emphasis added.) The board of education in Chavis "admitted that thirteen of the fourteen [relators] held valid teaching certificates during the relevant school years." Id. at 31, 641 N.E.2d at 193. The remaining tutor, Judith Pryor, an ESL tutor, had an elementary teaching certificate but did not have an ESL certificate. The Supreme Court noted that R.C. 3319.22 establishes categories for teaching certificates and observed that Pryor's elementary teaching certificate, "unlike those for middle grades or high school * * *, was valid for teaching in grades one through eight without limitation as to subject matter." Id. In light of these circumstances and because "there was no evidence that * * * Pryor taught in other grades besides one through eight during the pertinent school year," id., the Supreme Court held that all the relators (including Pryor) "were `teachers' for *Page 534 purposes of R.C. 3317.13 and 3317.14 and were not barred by R.C.3319.30 from compensation for their duties as tutors." Id., at 32, 641 N.E.2d at 194. Obviously, Pryor's being certified to teach at the level on which she was serving as a tutor, along with the nature of Pryor's certification — which includes all subjects for grades one through eight — was pivotal to the Supreme Court's holding that she was entitled to compensation as a teacher. This action presents different circumstances. Although relator has the same certification as Pryor, that is, grades one through eight, relator works only with high school students. Relator has never held a high school teaching certificate. As the analysis in Chavis demonstrates, relator is barred by R.C.3319.30 from compensation as a "teacher" for her duties as a learning assistant at the high school. That is, she does not have a clear legal right to be compensated as a "teacher" under R.C. 3317.13 and 3317.14 because she "has not obtained acertificate of qualification for the position as provided by section 3319.22 of the Revised Code." (Emphasis added.) R.C.3319.30. In light of R.C. 3319.30, this lack of proper certification alone is dispositive. Chavis requires, therefore, that we deny relief.2 Despite the certification requirement of R.C. 3319.30, relator asserts that — as a learning assistant — she performs the duties of a teacher and, therefore, is entitled to be compensated as a teacher under R.C. 3317.13(A)(2), rather than as an educational aide under R.C. 3319.088. Respondents argue that because relator's duties are those of an educational aide as defined by R.C. 3319.088, she lacks a clear legal right to relief and, therefore, respondents do not have a clear legal duty to compensate her as a teacher. As the party seeking relief, relator has the burden of proof. "`The facts submitted and the proof produced must be plain, clear, and convincing before a court is justified in using the strong arm of the law by way of granting the writ [of mandamus].'" State ex rel. Pressley v. Indus. Comm. (1967),11 Ohio St. 2d 141, 161, 40 O.O.2d 141, 154, 228 N.E.2d 631, 647 (quoting 35 Ohio Jurisprudence 2d Mandamus, Section 37, at 285). Given the record in this action, we conclude that relator has failed to meet her burden of proving that her activities are among those of a teacher rather than those of an educational aide. As a consequence, we must deny relief. R.C. 3319.088 provides: *Page 535 "As used in this section, `educational aide' means any nonteaching employee in a school district who directly assists a teacher as defined in section 3319.09 of the Revised Code, by performing duties for which a certificate issued pursuant to sections 3319.22 to 3319.30 of the Revised Code is not required. "* * * "(C) Educational aides shall at all times while in the performance of their duties be under the supervision and direction of a teacher as defined in section 3319.09 of the Revised Code. Educational aides may assist a teacher to whom assigned in the supervision of pupils, in assisting with instructional tasks and in the performance of duties which, in the judgment of the teacher to whom the aide is assigned, may be performed by a person not certificated pursuant to sections3319.22 to 3319.30 of the Revised Code and for which a teaching certificate, issued pursuant to sections 3319.22 to 3319.30 of the Revised Code is not required. The duties of an educational aide shall not include the assignment of grades to pupils. The duties of an educational aide need not be performed in the physical presence of the teacher to whom assigned, but the activity of an educational aide shall at all times be under the direction of the teacher to whom assigned. The assignment of an educational aide need not be limited to assisting a single teacher. In the event an educational aide is assigned to assist more than one teacher the assignments shall be clearly delineated and so arranged that the educational aide shall never be subject to simultaneous supervision or direction by more than one teacher. "* * * "Educational aides may not be used in place of classroom teachers or other employees and any payment of compensation by boards of education to educational aides for such services is prohibited." Clearly, the intent of the General Assembly was to give local boards of education and individual teachers flexibility in assigning tasks — including "instructional tasks" — to educational aides, but these aides were to work under the direction of a teacher "at all times." The organizational structure employed by the board in meeting the needs of students assisted by educational aides uses that flexibility. The board explained it adopted the term "learning assistants" because the administration wanted "to create a title that [it] felt was respectful." The guidance office generally refers high school students needing assistance to the Learning Resource Center ("LRC"), where each student is assigned to a learning assistant by the Coordinator of Learning Resource Services ("coordinator"), who is certified to teach English (seventh through twelfth grade), reading (kindergarten through twelfth grade), and high school biology. The Director of Learning Resource Services ("director") supervises the learning assistants and the coordinator. The director *Page 536 holds a teaching certificate for special educational/developmentally handicapped for kindergarten through twelfth grade as well as speech pathology, speech and hearing therapy for kindergarten through twelfth grade. Ordinarily, learning assistants work with from one to three students during a given class period. As the parties have stipulated: "The student's educational deficit is communicated to the learning assistant, who then works with the student in an attempt to strengthen the particular weakness. The learning assistant is expected to support, reinforce, and provide extra practice based upon the student's classroom work. The learning assistant is not required to develop lesson plans, individual education plans or academic goals and objectives. The learning assistant is expected to maintain a daily record of the student's work and progress." In addition to relator, two other learning assistants testified. Both of these witnesses divide their time between working as educational aides and as special education tutors. Tutors must hold special certificates and prepare an individual education plan which sets forth goals and objectives for the student. Tutors are paid at a higher rate than learning assistants. The learning assistants testified, however, that — in their capacity as learning assistants — they exercise individual judgment regarding materials and techniques as well as bring their experience and knowledge as teachers to their work with the students assigned to learning assistants. They also testified that they are teaching and do not receive specific instructions from the classroom teachers, the coordinator, or the director. The coordinator and the director, on the contrary, both testified that the learning assistants do not teach. That is, the coordinator and the director describe the work of the learning assistants as assisting the students with mastering single skills, subskills, and concepts already introduced by the classroom teacher. In the stipulations, the parties recognized that classroom teachers have additional duties and responsibilities distinct from those of learning assistants. As the parties have stipulated: "Unlike learning assistants and certificated tutors, classroom teachers are and have been assigned to perform extra duties such as bus supervision; supervision of students outside the building before and after school; playground supervision; in-school suspension; after school detention; study hall; hall supervision; assemblies and lunch supervision. Classroom teachers are also required to participate in faculty meetings and curriculum development. Classroom teachers are also responsible for assigning grades. Classes taught by classroom teachers generally range from 20 to 30 students, whereas certificated tutors are restricted, by law, *Page 537 to small group instruction of no more than three students during a given period. By comparison, the number of students with whom a learning assistant may work at any given time is not governed by state law; rather, it is dictated by District practices and the needs of the students in the building where the learning assistant is assigned." Despite these differences, the coordinator, the director, and the superintendent all testified that relator and the learning assistants make a substantial contribution. With regard to relator, the coordinator stated: "Valerie is very good at what she does, she performs a service very vital. She has a rapport with the students, she understands teenagers, they like her. She's very good. I value her; I value her." The issue before this court, however, is not whether relator enhances the educational experience of the students with whom she works. Rather, we must consider whether the record in this action provides us with a basis for concluding that relator has both a clear legal right to be compensated as a teacher and that respondents have a clear legal duty to compensate her as a teacher. The evidence is not "plain, clear, and convincing,"Pressley, 11 Ohio St.2d at 161, 40 O.O.2d at 154,228 N.E.2d at 647, that relator is serving as a teacher rather than as an educational aide. The organizational structure ensures that relator "at all times be under the direction of the teacher to whom assigned." R.C. 3319.088(C). The job description of the coordinator states as one of her "essential job functions" the following: "Assists in the selection, supervision, and observation (not for the purposes of personnel evaluation) of Learning Resource Service personnel." (Emphasis added.) Both the coordinator and the director testified that the coordinator provides direction for the learning assistants. On the other hand, learning assistants testified that they do not receive supervision from either the classroom teacher or the coordinator. This conflict in the testimony reflects that the evidence isnot "plain, clear, and convincing" that relator's work as a learning assistant entitles her to be compensated as a teacher. Furthermore, the role of the coordinator prevents the learning assistants from being "subject to simultaneous supervision or direction by more than one teacher." R.C.3319.088(C). Rather, the board has created an environment in which the assignments flow through one individual — the coordinator — to the learning assistants who then have access to a variety of resources including the classroom teacher and the coordinator. Additionally, the standard for determining whether the tasks required of a learning assistant are appropriate is whether "in the judgment of the teacher to whom the aide is assigned, [the tasks] may be performed by a person not certificated pursuant to sections 3319.22 to 3319.30 of the Revised Code and for which a teaching certificate, issued pursuant to sections 3319.22 to3319.30 of the *Page 538 Revised Code is not required." R.C. 3319.088(C). Relator has not demonstrated that any assignment given to her requires, in the judgment of the teacher to whom the aide is assigned, a teaching certificate. We also note that the superintendent acknowledged that the decision in State ex rel. Brown v. Milton-Union Exempted VillageBd. of Edn. (1988), 40 Ohio St. 3d 21, 531 N.E.2d 1297, required that the board reevaluate its use of tutors because Brown required that some work done by certificated tutors be compensated at the minimum salary schedule for teachers. See R.C.3317.13. The increased compensation of tutors limited the resources available to the board for providing assistance to children who were not legally disabled but who required additional assistance. As a result, the board created the position of "learning assistant" and limited the responsibilities to those appropriate for educational aides. Educational aides were to be paid less than tutors and according to a plan adopted by the board. See R.C. 3319.088(D). This court cannot presume to substitute its judgment for that of the board with respect to the allocation of its resources unless, of course, respondent board had failed to discharge a clear legal duty. Given the record in this action, however, we must conclude that relator has failed to meet her burden of demonstrating that she has a clear legal right to be compensated as a teacher and that respondent has a clear legal duty to compensate her as a teacher. Accordingly, relator's request for relief in mandamus is denied. Writ denied. LEO M. SPELLACY, C.J., concurs. JAMES D. SWEENEY, J., concurs in judgment only. 1 Relator does not contest respondent's assertion that R.C.2305.07 bars claims which accrued more than six years before the filing of the complaint in this action on April 20, 1994. SeeState ex rel. Gingrich v. Fairfield City Bd. of Edn. (1985),18 Ohio St. 3d 244, 245, 18 OBR 300, 301-302, 480 N.E.2d 485,486-487. 2 We also note that R.C. 3319.36 (currently, R.C.3319.36[A][2]) prohibits the treasurer of a school board from drawing a check for the payment of a teacher who has not filed with the treasurer a teacher's certificate "to teach the subjects or grades taught." Although the parties have not discussed the significance of this provision, R.C. 3319.36 appears to be a sufficient basis for determining that respondents do not have a clear legal duty to compensate relator as a teacher. *Page 539

2016-07-06 06:36:07.794337+00

Per Curiam

The appeal in Case No. 5691 (Retz v. Retz), is from an order of the Domestic Relations Court finding the defendant in contempt of court for failing to comply with an order to make child support payments. A sentence of incarceration in jail was imposed for such failure. The proceedings were not recorded and an agreed statement of the record was approved and certified to this court pursuant to the Appellate Rules. *Page 159 The appeal in Case No. 5746 (Fuller v. Fuller) was consolidated with Case No. 5691 because the factual and legal issues of both are the same. In Fuller, the only record is the transcript of the docket and journal entries and a statement of facts set out in the appellant's brief. There is no agreed statement of the record as in the Retz case. No one appeared or filed a brief on behalf of the appellee. A brief discussion and disposition of Fuller appears infra. The agreed statement of facts in the Retz case is as follows: "1. On August 20, 1976, Plaintiff-Appellee, Christine Retz (hereinafter Appellee), was granted a divorce from Defendant-Appellant, Randall Retz (hereinafter Appellant). Appellant was ordered to pay child support to Appellee in the amount of $17.50 per week and one per cent of each payment to the Montgomery County Bureau of Support as a service charge, for a total weekly payment of $17.68. "2. On June 30, 1977, a hearing was held to allow Appellant to show cause why he should not be held in contempt for non-payment of child support. Appellee was represented by counsel from the Legal Aid Society of Dayton at said hearing. Appellant appeared without counsel. "3. Evidence adduced at the June 30, 1977, hearing showed that Appellant had made no child support payments since the divorce was granted. Appellant testified that he had not earned enough money since the divorce to pay child support. The matter was continued to July 27, 1977, for disposition and costs were assessed against Appellant. "4. On July 27, 1977, Appellant appeared without counsel. Appellee was represented by counsel from the Legal Aid Society of Dayton. Appellant was adjudged in contempt of court for failure to pay child support and sentenced to the Montgomery County Jail for ten days. Five days of said sentence were suspended. Appellant began serving his sentence at 5:00 P.M., July 27, 1977. "5. On July 28, 1977, Appellant, represented by counsel from the Office of the Montgomery County Public Defender, filed his Notice of Appeal to the Montgomery County Court of Appeals. The execution of Appellant's sentence was thereupon suspended during the pendency of his appeal. *Page 160 "6. At all times relevant to the issues herein subsequent to the Final Judgment and Decree of Divorce and prior to the filing of his Notice of Appeal, Appellant was unrepresented by counsel and stated that he was unable to obtain counsel because of his indigency. At no time did Appellant waive counsel." The agreed facts indicate that at the hearing and sentence in contempt appellant was without counsel. It does not appear that he requested counsel or that he was advised of any right to counsel. Subsequent to the judgment appellant stated he was unable to obtain counsel because of his indigency. He never expressly waived counsel. The issue presented is whether the incarceration of the appellant for a violation of a civil order to pay for child support was contrary to the Constitutions of both the United States and the state of Ohio where the appellant appeared without counsel and without funds to employ counsel. The execution of the sentence of commitment was suspended by the trial court pending appeal. This private action was initiated by the appellee-wife, custodian of the children. She was represented by the Legal Aid Society of Dayton, the local part of the federal network of legal services under the Legal Services Corporation Act. After the sentence was imposed, the appellant-husband was represented by the Office of the Montgomery County Public Defender under the Ohio provision for indigents. The appellee's counsel by way of a brief accepted the "philosophy" of its parent corporation that the ends of justice is best served when legal assistance is provided for indigents and declined to take a position adverse to that of the appellant when the civil proceeding may result in the contemnor's incarceration. No one appeared on behalf of the trial court or on behalf of other public authorities that may be affected by a decision in the case. This court is confronted with a constitutional issue on which there is no adversary. Both parties agree on the facts and the law, a novel situation, which suggests that this court must look to the announcements of the Supreme Court of Ohio without regard to the "philosophy" of counsel, which in this situation appears to overlook the position of the trial court as well as the welfare of the children and the complainant. *Page 161 The three assignments of error, based upon the provisions of the United States and Ohio Constitutions, will be discussed in the order listed in the appellant's brief. 1. We conclude that the right to counsel in criminalprosecutions, guaranteed by both Constitutions and affirmed byArgersinger v. Hamlin (1972), 407 U.S. 25, has no application to private actions, initiated by private parties, even though such actions may result in incarceration for a failure to obey a court order. The Sixth Amendment to the United States Constitution applies only "in all criminal prosecutions." Section 10, Article I, of the Ohio Constitution has a similar provision among a series of rights in criminal proceedings and extends the right to counsel to "the party accused," a reference that has no application to a civil action. In re Calhoun (1976),47 Ohio St. 2d 15, 17; Beach v. Beach (1955), 99 Ohio App. 428;In re Neff (1969), 20 Ohio App. 2d 213. There is no merit to the first assignment of error. 2. The second assignment of error is based upon theFourteenth Amendment to the Constitution of the United States, that no state shall "deprive any person of life, liberty, or property, without due process of law * * *." There can be no doubt that in a civil case every person is entitled to be represented by counsel. The question is whether the state must guarantee that right, advise a civil defendant of his right to counsel and provide counsel at public expense where the nature of the proceeding is such that it may result in incarceration if an order of the court has not been obeyed. In the instant case, the contempt proceedings resulted from a failure to support minor children. Similar questions arise in a multitude of other civil situations, notably orders in equitable cases, enforcement of judgments, and summary and preliminary actions during trial in any one of which a refusal to obey an order may result in a fine or imprisonment, or both. It is the comprehensive nature of the issue involved here that prompted this court to remark at the outset that neither the children, the trial court or the public authorities, who would be required to provide counsel in such civil actions, were *Page 162 represented. It may well be that the public expense involved is a deterring cause for the decisions that skirt or otherwise avoid a direct answer. Proceedings against juveniles for offenses and those against convicted defendants for a violation of probationary orders are clothed in all the protection of the criminally accused and must be distinguished from civil contempt proceedings. State v.Timson (1974), 38 Ohio St. 2d 122. In re Popp (1973), 35 Ohio St. 2d 142 and In re Fisher (1974), 39 Ohio St. 2d 71, both hold that in an involuntary civil commitment proceeding in the Probate Court based upon insanity or mental illness the person involved, if indigent, is entitled under the Due Process Clause to appointed counsel. The language used in these opinions is sufficiently broad to include all civil contempt situations where incarceration is involved. If we accept such dicta, it would be necessary to reverse the instant order. The only distinction is that a mental condition is described as involuntary, a condition that is not present in all civil contempt proceedings. More recently, in a case from this county, the Supreme Court affirmed a dismissal of proceedings similar to the instant case that arose out of habeas corpus action because the remedy was inappropriate. In re Calhoun (1976), 47 Ohio St. 2d 15. In the Calhoun case the Supreme Court points out "great factual differences" between criminal and non-criminal proceedings and states, at page 17: "The only noncriminal situation to which this court has applied Argersinger is involuntary civil commitment proceedings undertaken pursuant to R. C. 5122.15. In re Fisher (1974),39 Ohio St. 2d 71." This Per Curiam statement can only be accepted as a caution suggesting a limitation upon earlier statements of the court. An interest in the uniform and orderly operation of justice throughout the state suggests acceptance of that limitation until the Supreme Court creates a broader exception involving voluntary situations which would of necessity incorporate all varieties of civil contempt proceedings. This caution also appears in Juidice v. Vail (1977),430 U.S. 327, in which the Supreme Court of the United States *Page 163 applied the rule of federal abstention in a collection case in which a collateral action was initiated in the federal courts; however, as in the habeas corpus actions in Ohio, the Vail case represents another type of inappropriate action and a failure to assert a direct appeal when the opportunity was available. Here we find a direct appeal. The second assignment of error presents a major constitutional problem under the Due Process Clause. The volume of such proceedings in the domestic relations courts also presents a public economic burden of equal magnitude, rivaling that experienced in criminal cases. There is a major distinction between criminal proceedings, brought by the state for its protection on behalf of all the people and prosecuted by agents with all the resources of the state, and private civil proceedings that may provoke contempt, but in which the state is no more than indirectly concerned. This is not to say that the government has no interest in children who are without income for their support or citizens whose rights are violated; however, in such situations the initiation and thrust of civil relief rests exclusively with those involved and, unless authorized by statute — as in criminal offenses based upon nonsupport — the power and resources of the state are not utilized in any manner other than as in any other civil action. In the first situation, the public reaps the protection and benefit of criminal actions and must pay the piper; in the latter, a civil action is initiated to enforce a private obligation and the benefit derived is for a private purpose. The extent to which economic relief is extended to individuals to aid them in prosecuting or defending civil disputes is a legislative question and not an issue that has as yet been recognized as within the mandatory constitutional guarantee of due process in civil cases. We conclude from the references in the Calhoun case to In reGreen (1962), 369 U.S. 689, and to Taylor v. Hayes (1974),418 U.S. 488, and the quotation repeated above that the Supreme Court of Ohio has not recognized a public duty arising out of the Due Process Clause to guarantee and to provide counsel for indigents for proceedings in civil contempt arising out of a failure to obey a court order even though some limited incarceration may result. The second assignment of error is rejected. *Page 164 3. The third assignment of error relies upon the Equal Protection Clause under the Fourteenth Amendment to the United States Constitution. This argument is dependent upon the second assignment of error as to what is available within the guarantee of due process and is not bolstered by the existence of a statute making it a criminal offense to fail to support one's minor children. There are differences inherent in life and the liberty of free choice and they vary in degree between every person or corporation. The fact that they exist and will never be removed, if we are to remain free, does not justify a resort to theFourteenth Amendment unless the denial of a right is by the state and the denial relates to a protection provided or made available under the law. The third assignment of error is not well taken. The judgment in Case No. 5691 is affirmed. In Fuller v. Fuller, a contempt proceeding was initiated by the Montgomery County Bureau of Support in which it is recited that the appellant was $4,133.16 in arrears on child support payments. The court, sua sponte, ordered the defendant to appear to show cause why he should not be held in contempt for non-payment of child support. The matter was heard by a referee and the order and sentence was approved by the court on October 12, 1977, imposing a fine of $500 and a sentence of ten days to be served in the county jail. In lieu of paying the fine, the defendant was required to serve it out at the rate of $10 per day. The effective jail time imposed amounts to 60 days. The sentence was suspended pending appeal. There is no indication in the record that appellant was represented by counsel until after the sentence, or that he waived the presence of counsel. The assigned errors are the same as those in Case No. 5691 and the reasons and conclusions of the court in the consolidated case will not be repeated here. The errors are rejected and the judgment is affirmed. Judgment affirmed. SHERER, P. J., McBRIDE and KERNS, JJ., concur. *Page 165

2016-07-06 06:36:08.66335+00

Troop

The appeal in case No. 7247 is from a judgment of conviction of the defendant in the Columbus Municipal Court on a charge of operating a motor vehicle while under the influence of alcohol on October 13, 1962. Trial was to the court without a jury. One assignment of error is urged by the defendant, appellant herein, that the verdict of the trier of the facts was contrary to law and against the manifest weight of the evidence. In determining whether a judgment in a criminal matter is manifestly against the weight of the evidence the record must be reviewed in the light of the criminal rule of proof beyond a reasonable doubt. Even so, the commonly emphasized requirement is that the verdict be "manifestly" contrary to the weight of the evidence. In the case of State v. Johnson (1950), 57 Ohio Law Abs., 524, the Second District Court of Appeals quoted and followed Breese v. State, 12 Ohio St. 146. At page 532, the appeals court quotes the fourth paragraph of the syllabus of theBreese case, as follows: "`A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing *Page 541 court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony.'" The record reviewed by this court contains only the oral testimony of the arresting officer and of the defendant. It is expected that conflict would be present. There is no other objective evidence in the case, the defendant having refused to submit to a test of body fluids. The reason for the reluctance of an appeals court to reverse when there is only conflicting oral testimony shown in the record seems obvious. In such a situation, the trial court or jury must decide as to the credibility of the witness, which must be done by applying the commonly used tests of credibility such as demeanor on the stand, forthrightness of answers, as well as interest in the outcome of the case. (See, also, 3 Ohio Jurisprudence (2d), 820, Section 821, for a discussion of the review of criminal cases.) We think the record in the instant case contains evidence from which the trier of the facts was justified in finding that the accused was guilty. Attention is called to the case of State v. Steele (1952),95 Ohio App. 107, for assistance in appraising evidence as to the offense of operating a motor vehicle while under the influence of alcohol. Since no mention is made of the appeal in case No. 7246 in the briefs of counsel, we assume acquiescence in the judgment of conviction by the trial court of the charge of improper lights. The judgments of the trial court in both cases are affirmed. Judgments affirmed. DUFFY, P. J., and BRYANT, J., concur. *Page 542

2016-12-28 01:00:51.962053+00

Smith

http://www.ca5.uscourts.gov/opinions/pub/16/16-60042-CV0.pdf

Case: 16-60042 Document: 00513813121 Page: 1 Date Filed: 12/27/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 16-60042 Fifth Circuit FILED December 27, 2016 Lyle W. Cayce Clerk JACOB COOPER, Plaintiff–Appellee, versus LYNN BROWN, Defendant–Appellant. Appeal from the United States District Court for the Northern District of Mississippi Before STEWART, Chief Judge, SMITH and DENNIS, Circuit Judges. JERRY E. SMITH, Circuit Judge: Officer Lynn Brown appeals the denial of his motion for summary judg- ment based on qualified immunity (“QI”). Because it was clearly established that Brown’s conduct constituted excessive force in violation of the Fourth Amendment, we affirm.  Case: 16-60042 Document: 00513813121 Page: 2 Date Filed: 12/27/2016 No. 16-60042 I. A. One night in April 2013, Jacob Cooper was pulled over by Officer Michael Pressgrove on suspicion of driving under the influence (“DUI”). Believing that Cooper was intoxicated, Pressgrove administered a portable breath test, then returned to his patrol vehicle. Cooper panicked and fled on foot into a residen- tial neighborhood, where he took shelter inside a “cubbyhole,” a small wood- fenced area used to store trash bins between two houses. Because there was a passenger in his squad car, and DUI is a mis- demeanor offense, Pressgrove decided not to pursue Cooper. Instead, he radioed for backup, providing Cooper’s description and explaining that he was a DUI suspect and on foot. Brown was one of the officers to respond, arriving with his police dog Sunny, a Belgian Malinois. Pressgrove testified that he did not request a K9 unit and that it would have been unusual to deploy a K9 unit for a misdemeanor DUI. Pressgrove also testified that although he did not know whether Cooper was armed, he had no reason to believe that Cooper had a weapon. Upon entering the residential neighborhood with Brown, Sunny dis- covered Cooper in his hiding place and bit him on the calf. The parties dispute whether Sunny initiated the attack or whether, instead, Brown ordered it. Nonetheless, the facts following the initial bite are undisputed: Sunny con- tinued biting Cooper for one to two minutes. During that time, Cooper did not attempt to flee or to strike Sunny. Brown instructed Cooper to show his hands and to submit to him. At the time of that order, Cooper’s hands were on Sunny’s head. Brown testified that he could see Cooper’s hands and could appreciate that he had no weapon. Brown then ordered Cooper to roll onto his stomach. He complied, and Brown handcuffed him. But he did not order 2  Case: 16-60042 Document: 00513813121 Page: 3 Date Filed: 12/27/2016 No. 16-60042 Sunny to release the bite until after he had finished handcuffing Cooper. As a result of the bite, Cooper suffered years of severe pain from lower-leg injuries that required multiple surgeries, including reconstruction and skin grafts. B. Cooper sued Brown under 42 U.S.C. § 1983 , alleging that Brown’s use of force was objectively unreasonable under the Fourth Amendment. 1 After dis- covery, Cooper moved for partial summary judgment as to Brown’s individual liability, and Brown moved for summary judgment on the basis of QI. The district court granted Cooper’s motion and denied Brown’s. It determined that Brown’s use of the police dog was objectively unreasonable, given that Cooper was not actively resisting arrest and was suspected of only a misdemeanor DUI. It further decided that Cooper’s right was clearly established. II. We review de novo the denial of summary judgment based on QI. Kovacic v. Villarreal, 628 F.3d 209 , 211 (5th Cir. 2010). Under the collateral-order doctrine, a denial of summary judgment based on QI is immediately appealable to the extent that the appeal turns on a question of law. Newman v. Guedry, 703 F.3d 757 , 761 (5th Cir. 2012). On interlocutory appeal, we have jurisdic- tion to “review the materiality of any factual disputes, but not their genuine- ness.” Hogan v. Cunningham, 722 F.3d 725 , 730–31 (5th Cir. 2013). “Once a defendant invokes qualified immunity, the burden shifts to the plaintiff to show that the defense is not available.” Kovacic, 628 F.3d at 211 . But where factual disputes exist, we accept the plaintiff’s version. Hogan, 722 F.3d at 731. 1 Cooper also asserted a claim against the City of Horn Lake. The district court en- tered summary judgment for the city, and that decision is not addressed on this appeal. 3  Case: 16-60042 Document: 00513813121 Page: 4 Date Filed: 12/27/2016 No. 16-60042 III. QI provides government officials with immunity from suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223 , 231 (2009). We apply a two-part test: (1) whether the plaintiff has alleged a violation of an actual constitutional right; and (2) if so, whether the right was clearly established at the time of the violation. Brumfield v. Hollins, 551 F.3d 322 , 326 (5th Cir. 2008). Both questions are matters of law. Brothers v. Zoss, 837 F.3d 513 , 517 & n.8 (5th Cir. 2016). A. Cooper alleges that Brown violated his Fourth Amendment rights by applying excessive force. To prevail on an excessive-force claim, he must show “(1) injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Elizondo v. Green, 671 F.3d 506 , 510 (5th Cir. 2012) (quoting Collier v. Mont- gomery, 569 F.3d 214 , 218 (5th Cir. 2009)). The record plainly shows that Cooper suffered an injury, but Brown contends that his application of force was objectively reasonable. In excessive-force claims, the reasonableness of an officer’s conduct de- pends on the “facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386 , 396 (1989). We must adopt “the perspective of a reasonable officer on the scene, rather than [judge] with the 20/20 vision of hindsight.” Id. Our inquiry is “whether the officer[’s] actions [we]re ‘objectively reasonable’ in light of the facts and circumstances confronting [him], without regard to [his] underlying 4  Case: 16-60042 Document: 00513813121 Page: 5 Date Filed: 12/27/2016 No. 16-60042 intent or motivation.” Id. at 397 . Application of the Graham factors shows that Brown’s conduct was objectively unreasonable. DUI is a serious offense, Brothers, 837 F.3d at 519, so that factor favors Brown. But the other factors push heavily for Cooper. No reasonable officer could conclude that Cooper posed an immediate threat to Brown or others. Cooper was not suspected of committing a violent offense, and Brown testified that Pressgrove, when calling for backup, had not warned that Cooper might be violent. Moreover, Brown could see Cooper’s hands and knew he had no weapon. 2 Indeed, Brown’s own expert testified that there was no evidence that would have led a reasonable officer to believe that Cooper was a threat. Thus, this factor weighs strongly for Cooper. On the third factor, Cooper was not actively resisting arrest or attempt- ing to flee or to strike Sunny. The only act of “resistance” that Brown identifies is Cooper’s failure to show his hands because, although they were on Sunny’s head and visible to Brown, Brown wanted Cooper to raise his hands. Given that Sunny was still latched onto Cooper’s calf at the time, the failure to raise his hands can hardly be characterized as “active resistance.” 3 But even if it 2Brown contends that the fact that Cooper was unsearched made Cooper more of a threat. Although this will sometimes be a relevant fact—for example, where a plaintiff is suspected of committing a violent crime—it is not enough, standing alone, to permit a rea- sonable officer to characterize a suspect as an immediate threat. 3 See Goodwin v. City of Painesville, 781 F.3d 314 , 325 (6th Cir. 2015) (observing that the plaintiff’s “failure to present his hands to be cuffed was due to Taser-induced involuntary convulsions” and that this could not constitute active resistance under Graham); Kopf v. Wing, 942 F.2d 265 , 268 (4th Cir. 1991) (“We believe that a jury could find it objectively unreasonable to require someone to put his hands up and calmly surrender while a police dog bites his scrotum.”); Malone v. City of Fort Worth, No. 4:09-CV-634-Y, 2014 WL 5781001 , at *10 n.5 (N.D. Tex. Nov. 6, 2014) (“The Court wonders how a man, who is prone on the ground and being attacked by a dog, can reasonably be expected to expose his hands and unflinchingly hold them behind his back.”). Brown acknowledged that it might prove difficult for a suspect to convey his surrender while fending off a dog attack: 5  Case: 16-60042 Document: 00513813121 Page: 6 Date Filed: 12/27/2016 No. 16-60042 was, any “resistance” ended quickly. Brown ordered Cooper to roll onto his stomach, and Cooper complied with that order. At that point, no reasonable officer could believe that Cooper was actively resisting arrest; to the contrary, he was actively complying. And yet Brown still did not command Sunny to release the bite. Moreover, Brown was required to “assess not only the need for force, but also ‘the relationship between the need and the amount of force used.’” 4 Brown subjected Cooper to a lengthy dog attack that inflicted serious injuries, even though he had no reason to believe that Cooper posed a threat, and without first attempting to negotiate. 5 And he continued applying force even after Cooper was actively complying with his orders. Brown’s own expert conceded that there was no reason for Brown to permit Sunny to continue attacking once Cooper was on his stomach. The expert’s testimony is telling: Q: Once Mr. Cooper rolled to his stomach and put his hands where Offi- cer Brown told him to put his hands, was there any reason to leave the dog on at that point? A: I cannot think of any reason to allow the dog to remain physically engaged after that point. Q: In fact, officers cuff suspects in this manner routinely, correct? A: Yes, sir. Q: Without the use of a dog? Q. Officer Brown, you can understand how somebody who is being bitten by a Mal- inois would be slightly distracted while you’re giving them a verbal command? A. Right. 4Deville v. Marcantel, 567 F.3d 156 , 167 (5th Cir. 2009) (quoting Gomez v. Chandler, 163 F.3d 921 , 923 (5th Cir. 1999)); see also Poole v. City of Shreveport, 691 F.3d 624 , 629 (5th Cir. 2012) (noting that officers are permitted to respond to escalating verbal and physical resistance with “measured and ascending” responses). 5 See Deville, 567 F.3d at 167–68 (holding that a reasonable jury could find that the degree of force used was not justified where the officer “engaged in very little, if any, nego- tiation” with the suspect and “instead quickly resorted to breaking her driver’s side window and dragging her out of the vehicle.”). 6  Case: 16-60042 Document: 00513813121 Page: 7 Date Filed: 12/27/2016 No. 16-60042 A: Yes, sir. Q: And, in fact, most arrests occur without the use of a dog, correct? A: Yes, sir, overwhelmingly. Q: Okay. Is there any evidence you can show the jury in this case to account why Officer Brown could not order his dog to a backup position once Mr. Cooper was on his stomach instead of leaving the dog on? A: No, sir. The undisputed facts establish that Brown’s use of force was objectively unreasonable. 6 To be clear, we do not say that any application of force to a compliant arrestee is per se unreasonable, and we do not opine on the line of reasonableness. Instead, we state only the obvious: Under the facts in this record, permitting a dog to continue biting a compliant and non-threatening arrestee is objectively unreasonable. B. The second part of the QI inquiry looks to whether the right was clearly established at the time of the violation. “To answer that question in the affir- mative, we must be able to point to controlling authority—or a robust consen- sus of persuasive authority—that defines the contours of the right in question with a high degree of particularity.” Morgan v. Swanson, 659 F.3d 359 , 371– 72 (5th Cir. 2011) (en banc) (internal quotation marks and citation omitted). But “this does not mean that ‘a case directly on point’ is required.” Id. at 372 (quoting Ashcroft v. al-Kidd, 563 U.S. 731 , 741 (2011)). Rather, “existing pre- cedent must have placed the statutory or constitutional question beyond debate.” Id. at 372 (quoting al-Kidd, 563 U.S. at 741 (emphasis added)). The central concept is “fair warning.” Id. at 372; Newman, 703 F.3d 6 Although Brown and Cooper dispute whether Brown ordered Sunny to attack, that fact is not material to our holding. Even if the dog attacked of its own volition, Brown per- mitted the attack to continue for one to two minutes. 7  Case: 16-60042 Document: 00513813121 Page: 8 Date Filed: 12/27/2016 No. 16-60042 at 763. “The law can be clearly established despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” Newman, 703 F.3d at 763 (quoting Kinney v. Weaver, 367 F.3d 337 , 350 (5th Cir. 2004) (en banc) (internal quotation marks omitted)). “Furthermore, ‘in an obvious case,’ the Graham excessive-force fac- tors themselves ‘can clearly establish the answer, even without a body of rele- vant case law.’” Id. at 764 (quoting Brosseau v. Haugen, 543 U.S. 194 , 199 (2004)) (internal quotation marks omitted). 7 Cooper’s right was clearly established. Our caselaw makes certain that once an arrestee stops resisting, the degree of force an officer can employ is reduced. “[A]lthough the right to make an arrest necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it, the permissible degree of force depends on [the Graham factors].” Bush v. Strain, 513 F.3d 492 , 502 (5th Cir. 2008) (internal quotation marks omitted). In Bush, we held that it was objectively unreasonable for an officer to slam an arrestee’s face into a nearby vehicle when the arrestee “was not resisting arrest or attempting to flee.” Id. Similarly, we declared in Newman, 703 F.3d at 762, that tasing an arrestee was objectively unreasonable where “[t]he videos d[id] not show Newman attempting to strike either officer, holding a weapon, or even reaching for his waistband,” and “[t]he officers did not try to warn each other . . . that Newman had a weapon, which might be expected if either officer truly thought that at the time.” In the same way, Cooper was not attempting to resist arrest or flee, and 7 See also Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268 , 277–78 (5th Cir. 2015) (“The present case is an ‘obvious one where Graham and Garner alone offer a basis for decision.’”) (quoting Brosseau, 543 U.S. at 199 ). 8  Case: 16-60042 Document: 00513813121 Page: 9 Date Filed: 12/27/2016 No. 16-60042 Brown had no reason to think that he posed an immediate threat. Moreover, the fact that Bush and Newman are not dog-bite cases does not shield Brown. “Lawfulness of force . . . does not depend on the precise instrument used to apply it. Qualified immunity will not protect officers who apply excessive and unreasonable force merely because their means of applying it are novel.” Id. at 763–64 (footnotes omitted). Thus, Brown had “fair warning” that subjecting a compliant and non-threatening arrestee to a lengthy dog attack was object- tively unreasonable. 8 This comports with decisions of sister circuits that have considered sim- ilar facts. In Priester v. City of Riviera Beach, 208 F.3d 919 , 923–24 (11th Cir. 2000), the Eleventh Circuit held that it was objectively unreasonable for offi- cers to allow a dog to bite and hold a suspect for two minutes—which it de- scribed as “an eternity”—where he was compliant with orders and not resisting arrest. The Eleventh Circuit confronted the question a second time in Edwards v. Shanley, 666 F.3d 1289 (11th Cir. 2012). There, a man was pulled over for a traffic violation and fled on foot. When the officers encountered him, he was lying on his stomach with his hands exposed. The man verbally surrendered, shouting, “[Y]ou got me. I only ran because of my license.” Nonetheless, the officers released their dog and permitted it to continue biting him for five to seven minutes. Id. at 1292–93. The court held that the officers’ conduct vio- lated the constitution. Its application of the Graham factors is instructive: Critical to this determination is the fact that, in subjecting Edwards to 8 Our decision in Anderson v. McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (per curiam), is also closely on point. Because it is unpublished, it does not constitute clearly established law for purposes of QI, but it aptly illustrates the established right. There, a suspect was pulled over and fled on foot. When the officers encountered him in a backyard, he was holding an iPod, which the officers claimed to think was a weapon. One officer tased the plaintiff five or six times, including after the plaintiff was on the ground and no longer resisting. We denied QI because the officer “should have known that he could not continue to shock [the plaintiff] with the taser after he was no longer resisting arrest.” Id. 9  Case: 16-60042 Document: 00513813121 Page: 10 Date Filed: 12/27/2016 No. 16-60042 the dog attack, Officer Shanley increased the force applied at the same time the threat presented by Edwards decreased. To be sure, the seri- ousness of Edwards’s fleeing Officer Lovett had not changed, and thus under the first Graham factor we accept that Officer Shanley had some reason to approach Edwards with concerns for his own safety. But insofar as fleeing from the police raises doubt about the danger an indi- vidual poses, Edwards mitigated that doubt by laying prone with his hands exposed and begging to surrender. As a result, the second and third Graham factors weigh in favor of Edwards’s argument that extra- ordinary force was not necessary or appropriate for the entire duration of the dog attack. Id. at 1296 . To the same effect, the Ninth Circuit held that “it was clearly established that excessive duration of the bite and improper encouragement of a continua- tion of the attack by officers could constitute excessive force that would be a constitutional violation.” Watkins v. City of Oakland, 145 F.3d 1087 , 1093 (9th Cir. 1998). And the Sixth Circuit denied QI to an officer who “allowed a ‘bite and hold’ dog, whose training was questionable, to attack two suspects who were not actively fleeing and who, because of proximity, showed no ability to evade police custody.” Campbell v. City of Springboro, 700 F.3d 779 , 789 (6th Cir. 2012). IV. Although Brown appeals the partial summary judgment for Cooper, we lack appellate jurisdiction to review that decision. 9 Under 28 U.S.C. § 1291 , we have jurisdiction only over “final” decisions. The district court entered par- tial summary judgment for Cooper “as to the issue of liability,” but it did not 9 Though the parties assume jurisdiction is proper, “[w]e must always be sure of our appellate jurisdiction and, if there is doubt, we must address it, sua sponte if necessary.” USPPS, Ltd. v. Avery Dennison Corp., 647 F.3d 274 , 277 (5th Cir. 2011) (quoting Castaneda v. Falcon, 166 F.3d 799 , 801 (5th Cir. 1999)). 10  Case: 16-60042 Document: 00513813121 Page: 11 Date Filed: 12/27/2016 No. 16-60042 decide damages. 10 “Such judgments are by their terms interlocutory, and where assessment of damages or awarding of other relief remains to be resolved have never been considered to be ‘final’ within the meaning of 28 U.S.C. § 1291 .” Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737 , 744 (1976) (citation omitted). 11 Because the partial summary judgment was not “final,” it is not properly before this court as part of the QI appeal. 12 The order denying qualified immunity is AFFIRMED. The appeal of the partial summary judgment for Cooper is DISMISSED for want of appellate jurisdiction. 10The district court left the damages issue for the jury trial, which it stayed pending this appeal. 11 See also Way v. Reliance Ins. Co., 815 F.2d 1033 , 1034 (5th Cir. 1987) (per curiam) (dismissing an appeal for lack of jurisdiction because the partial summary judgment was not final); Halliburton Co. Benefits Comm. v. Graves, 191 F. App’x 248, 250–51 (5th Cir. 2006) (per curiam) (same). 12 Some courts have used the doctrine of “pendent appellate jurisdiction” to review partial-summary-judgment orders alongside orders denying QI. E.g., Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523 , 549 (6th Cir. 2002). This court, however, has held that “[p]endent appellate jurisdiction should be exercised only in ‘rare and unique’ circumstances,” where the non-final claim is “inextricably intertwined” with the QI inquiry. Gros v. City of Grand Prairie, 209 F.3d 431 , 436–37 (5th Cir. 2000) (quoting Woods v. Smith, 60 F.3d 1161 , 1166 n.29 (5th Cir. 1995)). We generally have resisted efforts to bootstrap non- final claims into QI appeals. See Gros, 209 F.3d at 437 ; Cutler v. Stephen F. Austin State Univ., 767 F.3d 462 , 468 (5th Cir. 2014); Cantu v. Rocha, 77 F.3d 795 , 805 (5th Cir. 1996); see also Guillemard-Ginorio v. Contreras-Gomez, 490 F.3d 31 , 37 n.4 (1st Cir. 2007) (declining to consider a partial summary judgment in a QI appeal because of “the well-established rule of reviewing only a district court’s final decisions.”). Because there are no “rare and unique” circumstances here, we decline to exercise pendent appellate jurisdiction. 11

2016-07-06 06:36:07.365669+00

OPINION Plaintiff, Roadway Express, Inc. ("Roadway"), appeals the judgment of the Court of Claims of Ohio finding that defendant and third-party plaintiff, Ohio Department of Transportation ("ODOT"), was not negligent in its maintenance of a public roadway. On July 30, 1996, ODOT entered into a contract with third-party defendant, Kokosing Construction Company, Inc., ("Kokosing") to replace a culvert on Interstate 70 ("I-70") at the 123-mile marker in Licking County, Ohio. The project plans and specifications referenced in the contract were developed and designed by ODOT. Among other construction activities, the project entailed the removal of pavement in both the eastbound and westbound lanes and the construction of temporary travel lanes in both directions. The original plans and specifications called for the construction of a twelve-foot wide temporary westbound lane bordered on the south by a portable concrete barrier and on the north by a guardrail. On September 20, 1996, Kokosing requested a change in the plans that included narrowing the width of the temporary westbound lane. The request incorporated a drawing that depicted the new width of the temporary lane to be a total of thirteen feet, to include the pavement that supported the concrete barrier. However, the drawing depicted the usable width of the temporary lane as ten feet.1 ODOT approved the change, which remained in effect at the time of the incident giving rise to the instant appeal. Construction of the temporary westbound lane was completed on September 25, 1996. Approximately twenty-eight inches of shoulder area, comprised of a sand/limestone mixture, extended from the edge of the temporary travel lane to the guardrail. The speed limit was lowered through the entire project area to fifty-five miles per hour. To alert motorists to the lane shift, an illuminated message board was installed on the right side of the roadway, .2 miles west of the 124-mile marker, indicating "caution lane shift, 2000 feet ahead, narrow lane 11 feet, please drive safely." Paul Haas, ODOT's project inspector, was responsible for seeing that the project was completed in accordance with ODOT's plans and specifications. Over the course of the project, Haas completed daily inspection reports detailing, among other things, a description of the daily work performed by Kokosing. On September 25, 1996, Haas measured the width of the temporary westbound lane at eleven feet. On September 30, 1996, Haas noticed that a drop-off/rut had been created between the edge of the temporary westbound lane and the dirt shoulder as a result of the tires of cars and trucks drifting off the right edge of the paved road. Haas also noticed that the guardrail had sustained damage caused by trucks striking the guardrail while traveling on the shoulder. Haas reported his concerns to Harold Rayburn, Kokosing's project superintendent. With Haas's approval, Kokosing added 304 aggregate (crushed stone) to build up the existing shoulder, prevent further rutting, and to buttress the paved travel portion of the roadway. Haas inspected the roadway on September 30, 1996, and found Kokosing's work to be satisfactory. When Haas inspected the roadway at 7:30 p.m. on October 1, 1996, he did not notice any deterioration of the temporary westbound lane and otherwise determined the project to be in full compliance with ODOT's plans and specifications. Haas did not measure the width of the lane at any time after September 25, 1996. At approximately 4:00 a.m. on October 2, 1996, Roadway's employee, Thomas Riemenschneider, was driving a Roadway tandem tractor-trailer2 westbound through the construction zone, when the right wheels of the truck's cab dropped off the edge of the roadway and sunk in the shoulder's loose dirt, causing the truck to leave the roadway, travel into a ditch and overturn. Riemenschneider was not injured in the accident; however, the truck sustained extensive damage. Riemenschneider testified that at the time of the accident, he was traveling with the flow of traffic, which was proceeding at the posted speed limit. He further testified that the road surface was dry and there were no adverse weather conditions. He also testified that he had driven through the construction zone several times prior to the accident and was well aware of the drop-off and the progressive deterioration of the roadway's edge. Troopers Zeisler and Dawson from the Ohio State Highway Patrol arrived at the scene at approximately 4:15 a.m. and conducted an investigation. The officers made a series of lane width and drop-off/rut measurements at various points along the temporary right lane. The lane-width measurements varied from nine feet seven inches to nine feet eight inches and the drop-off/rut measurements varied from four and one-half inches to five inches. The nine feet eight inch lane-width measurement and the four and one-half inch drop-off/rut measurement were taken at the point the officers believed the truck left the roadway. In a report prepared after the investigation, the officers attributed Riemenschneider's accident to "unsafe speed," and found neither "pavement defect" nor "shoulder defect" to be contributing factors. Trooper Zeisler testified that because no lane-width measurements had been taken in the twenty-four hour period prior to the accident, she could not determine whether or not the truck had caused damage to the edge of the roadway during the accident. Haas testified that he and ODOT field engineer, Rene Payette, took lane-width measurements at three different locations along the construction zone. These measurements revealed lane widths varying from nine feet eight inches to ten feet four inches. Although Haas was not certain of the exact point the truck went off the roadway, he testified that the nine feet eight inch measurement was taken closest to the accident location. Glenn Fischer, Roadway's insurance adjuster, also took lane-width and drop-off/rut measurements after the accident. According to Fischer, his lane-width measurements ranged from a minimum of nine feet nine inches to a maximum of eleven feet; drop-off/rut measurements averaged six inches. Fischer was uncertain as to exactly where the truck went off the roadway. He further testified that he did not know whether or not the Roadway truck caused damage to the roadway edge as it went off the road. On August 17, 1998, Roadway filed an amended complaint in the court of claims against ODOT. In count one, Roadway alleged that ODOT was negligent: (1) in failing to "supervise the construction site and ensure that its contractor was taking reasonable precautions to protect the safety of the public"; (2) in failing to "ensure that the passage through the construction zone was wide enough for vehicles to pass safely"; (3) in failing to "post signs warning traffic that the lane was too narrow for trucks to pass"; and (4) in failing to "remedy the dangerous drop-off on the guardrail side of the interstate." In count two, Roadway alleged that ODOT was negligent per se in failing to ensure that the construction project conformed to its own regulations. Specifically, Roadway asserted that ODOT deviated from the mandatory minimum safety standards set forth in ODOT's Location and Design Manual ("LDM") with regard to the width of the temporary travel lane. On May 5, 1999, ODOT filed a third-party claim for indemnification and/or contribution against Kokosing, alleging that Kokosing's negligence was the sole proximate cause of the accident. The case was bifurcated, and a trial on the liability portion of the claim was held on January 24, 2000. At the close of the evidence, the court directed the parties to file proposed findings of fact and conclusions of law. On September 29, 2000, the court filed a decision and judgment entry. The court found that ODOT was not negligent per se because the standards set forth in the LDM regarding temporary lane width are advisory, not mandatory. As to Roadway's ordinary negligence claim, the court found that ODOT had met its duty to maintain the roadway in a reasonably safe condition for the driving public by posting signs warning of the lane shift, by reducing the speed limit in the construction zone, and by reasonably supervising and inspecting the work performed by Kokosing. The court further found that, even assuming that ODOT was negligent, Roadway was barred from recovery because Riemenschneider's comparative negligence was greater than the negligence of ODOT. The court relied upon the Ohio State Highway Patrol report in which "unsafe speed" was listed as the only factor contributing to the accident. Roadway filed a timely appeal, advancing the following five assignments of error: [1.] The Court of Claims erred as a matter of law when it concluded that ODOT owed no greater duty to the motoring public than to inspect the project site and fix any known defects. [2.] The Court of Claims erred in concluding that ODOT was not negligent when the undisputed evidence at trial established that ODOT failed to exercise care in inspecting and correcting a clearly dangerous and defective temporary lane. [3.] The Court of Claims erred as a matter of law in failing to make any factual determination as to the negligence of ODOT's agent on the project, Kokosing Construction Company. [4.] The Court of Claims erred in concluding that the Roadway truck caused the pavement to break apart, thereby explaining the fact that the lane was nearly 1½ feet narrower than it should have been, when there was no evidence to support such a conclusion. [5.] The Court of Claims erred in concluding that the roadway driver was more negligent than ODOT when there was no evidence in the trial record to support such a conclusion. By the first assignment of error, Roadway contends that the court of claims misconstrued the duty of care imposed by law upon ODOT. Specifically, Roadway argues that the court erred in concluding that ODOT's duty of care was limited to inspecting the work performed by Kokosing and remedying known defects discovered in the course of those inspections. Roadway argues that in so finding, the court essentially concluded that ODOT could delegate its statutory duty to maintain the highway in a reasonably safe condition to its contractor, Kokosing. Upon review of the court's decision, we find that Roadway mischaracterizes the court's statement. The court stated that, while ODOT is not an insurer of the safety of its highways, and cannot guarantee the same level of safety during a highway construction project as it can under normal traffic conditions, it "has a duty to maintain the system of highways free from unreasonable risk of harm by exercising ordinary reasonable care"; furthermore, the court must look at the totality of the circumstances to determine whether ODOT "acted in a manner to render the highway free from unreasonable risk of harm for the traveling public." It is well-established that this is the precise duty owed by ODOT to the traveling public under both normal traffic conditions and during highway construction projects. See, e.g., White v. Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 42; Rhodus v. Ohio Dept. of Transp. (1990),67 Ohio App. 3d 723, 729; Feichtner v. Ohio Dept. of Transp. (1995),114 Ohio App. 3d 346, 354. The court simply recognized the fact that because ODOT did not actually perform any of the work on the construction project, its "duty to maintain the system of highways free from unreasonable risk of harm" involved supervision of the construction project, inspection of the work performed by Kokosing, and remedying defects discovered during the course of the inspections. Indeed, the court rejected ODOT's argument that its right to inspect the construction site did not make it responsible for any failure by Kokosing to properly maintain the temporary lane in a safe condition. Roadway's first assignment of error is not well-taken. By the second and fourth assignments of error, Roadway contends that the court of claims erred in finding that ODOT did not breach its duty of care. In essence, Roadway argues that the court's decision was against the manifest weight of the evidence. In determining whether the judgment of the court is against the manifest weight of the evidence, a reviewing court must be guided by the presumptions that the findings of the court are correct, as the trial judge "* * * is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80. In C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, syllabus, the Ohio Supreme Court held: Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. In order to establish actionable negligence, Roadway was required to establish by a preponderance of the evidence that ODOT owed them a duty of care, that ODOT breached that duty, and that Roadway suffered damages as a proximate result thereof. Lunar v. Ohio Dept. of Transp. (1989),61 Ohio App. 3d 143, 146, citing Strother v. Hutchinson (1981),67 Ohio St. 2d 282. As noted previously, it is well-established that ODOT has a general duty to maintain and repair state highways. White, supra; Rhodus, supra; Feichtner, supra. It is also well-settled that ODOT is not an insurer of the safety of the state's highways. Rhodus, supra, at 730. Thus, ODOT had a duty to conduct the repairs on I-70 in a reasonably safe manner. Roadway essentially contends that ODOT breached this duty "by permitting vehicles to travel along a perilously narrow highway alongside a steep depression." The scope of ODOT's duty to ensure the safety of state highways is defined by the Ohio Manual of Uniform Traffic Control Devices ("OMUTCD"), which mandates certain minimum safety measures. Leskovac v. Ohio Dept. of Transp. (1990), 71 Ohio App. 3d 22. Furthermore, the construction contract in this case specifically incorporated ODOT's construction and material specifications and its LDM. In Perkins v. Ohio Dept. of Transp. (1989), 65 Ohio App. 3d 487, this court considered the weight to be accorded the OMUTCD specifications in evaluating ODOT's duty to maintain safe highways. In Perkins, we determined that not all portions of the manual are mandatory, thereby leaving some areas within the discretion and engineering judgment of ODOT. "The issue of whether an act constitutes a mandatory duty or a discretionary act determines the scope of the state's liability because ODOT is immune from liability for damages resulting from not performing a discretionary act." Gregory v. Ohio Dept. of Transp. (1995),107 Ohio App. 3d 30, 33-34, citing Winwood v. Dayton (1988),37 Ohio St. 3d 282. When the duty, or standard of care, is not detailed in ODOT's manual, "the proper standard should be that of a reasonable engineer using accepted practices at the time * * *." Lunar, supra, at 147. Roadway's negligence per se claim concerned the standard set forth in Section 502 of ODOT's LDM. Section 502.22 provides: It is desirable to maintain lane widths at least equal to those on the existing facility. Where width reductions are necessary, widths should not be less than 10 feet, unless lane widths on the existing facility are less than 10 feet. * * * Channelizing device offsets, discussed in Section 502.14, should be provided in addition to lane widths whenever possible. (Emphasis added.) Roadway does not assign as error the court's finding that ODOT did not violate the LDM and, thus, was not negligent per se in maintaining the westbound temporary travel lane at nine feet eight inches. As noted by the court "the word `should,' as used in section * * * 502.22 of the LDM, was not mandatory. Therefore, ODOT was not deprived of discretion to exercise its engineering judgment." (Decision at 5.) Roadway argues, nonetheless, that the nine foot eight inch temporary travel lane and the four and one-half inch drop-off/rut created a "clearly dangerous" condition and that ODOT's failure to correct this condition constituted a breach of its duty of care. As noted previously, this court, in Feichtner, supra, discussed ODOT's duty to the traveling public in construction zones. This court recognized that ODOT cannot guarantee the same level of safety during a highway construction project as it can under normal traffic conditions. Id. In addition, we acknowledged that ODOT is, nonetheless, required to provide the traveling public with a reasonable degree of safety in construction zones by way of utilizing traffic control barrels, reducing the applicable speed limit, and erecting construction warning signs. Id. We further found that a court must look at the totality of the circumstances in determining whether ODOT's actions were sufficient to render the highway reasonably safe for the traveling public during the construction project. Id., see, also, Lumbermens Mut. Cas. Co. v. Ohio Dept. of Transp. (1988), 49 Ohio App. 3d 129, 130. In the instant case, the court found that the construction zone was clearly marked with an illuminated sign warning motorists to use caution; that the roadway narrowed; that a lane shift to the right was required upon entering the temporary travel lane; and that the speed limit was reduced to fifty-five miles per hour, and that such signage constituted a reasonable and acceptable method of assuring safe travel in the construction zone. Furthermore, the court noted that ODOT had on duty at all times its project inspector, Paul Haas. Haas measured the temporary lane when construction was completed on September 25, 1996, at eleven feet. Furthermore, when he observed pavement deterioration and rutting problems on September 30, 1996, he recorded the problems, reported them to Kokosing's project superintendent, discussed possible solutions, and inspected and approved the repairs made by Kokosing. Although Haas did not physically measure the temporary lane after construction was completed on September 25, 1996, we cannot find that ODOT breached its duty of care by failing to do so. Haas testified that he inspected the project on a least a daily basis and recorded all noteworthy events in his daily reports. He further testified that between the time the repair was made on September 30, 1996, and the time of the accident on October 2, 1996, Haas did not observe any unsafe condition on the temporary travel lane. Indeed, Haas testified that he inspected the roadway at 7:30 p.m. on the night before the accident, noticed no deterioration of the westbound travel lane, and was otherwise satisfied that the project conformed to ODOT's plans and specifications. Moreover, Roadway offered no evidence, expert or otherwise, establishing that ODOT violated its own specifications or any provision of either the OMUTCD or LDM by failing to take more frequent lane-width measurements. Furthermore, Roadway has pointed to no authority, either statute or case law, suggesting that ODOT's duty to maintain a construction zone in a reasonably safe condition includes the duty to frequently measure the width of a temporary travel lane. With regard to the drop-off/rut issue, we note that Roadway offered no evidence, expert or otherwise, establishing that the four and one-half inch drop-off/rut violated ODOT's plans and specifications or any of the provisions of either the OMUTCD or LDM or otherwise created an unreasonable risk of harm to the motoring public. In addition, we find that it would have been inefficient and hazardous to require ODOT to constantly repair rutting caused by tens of thousands of vehicles passing through the construction zone on a daily basis. Because of the impracticality and danger posed by such frequent repairs, the court could have reasonably found that placing warning signs and reducing the speed limit were the only feasible solutions. See Basilone v. Ohio Dept. of Transp. (Feb. 13, 2001), Franklin App. No. 00AP-811, unreported. In addition, we note that there was evidence suggesting that Riemenschneider left the roadway for no other reason than inattention to the right edge line and unreasonable speed. In Stonerock v. Miller Bros. Paving (1991), 72 Ohio App. 3d 123, 136, this court noted that "given the circumstances of any individual case, the operation of a motor vehicle, even if being driven below the posted speed limit, may be unreasonable given the circumstances which exist." Id at 136. We find the Ohio State Highway Patrol report's citation to "unsafe speed" and not "pavement defect" or "shoulder defect" as a factor contributing to the accident a very strong indicator that Riemenschneider's speed, whether fifty-five miles per hour or slightly below the posted speed limit, was unreasonably fast under the conditions, especially in light of Riemenschneider's testimony that he frequently traveled through the construction zone and was aware of the deteriorating condition of the edge of the roadway. See State Farm Auto. Ins. Co. v. Ohio Dept. of Transp. (June 8, 1999), Franklin App. No. 98AP-936, unreported. Finally, we discern no error in the court's finding that the accident at issue may have caused a portion of the roadway edge to break off. Haas testified that portions of the roadway had been broken off as the result of trucks driving off the edge of the roadway. No evidence established the actual width of the temporary lane immediately prior to the accident. However, the evidence did establish that the condition of the temporary lane deteriorated after Haas left the construction site on October 1, 1996. Haas testified that when he left the construction site at 7:30 p.m., he observed no problem with the temporary lane. Riemenschneider testified that the right wheels of the truck's cab dropped off the edge of the roadway. None of the witnesses at trial could testify definitively that the Roadway truck did not tear away at the edge of the pavement when it left the pavement. From the foregoing evidence, the court could reasonably infer that the accident may have caused a portion of the roadway edge to break away, especially given the fact that the truck had tandem trailers. Viewing the present facts under the totality of the circumstances, we find that the court's decision that ODOT was not negligent in its maintenance of the roadway at issue was not against the manifest weight of the evidence. Accordingly, the second and fourth assignments of error are not well-taken. By the third and fifth assignments of error, Roadway argues, respectively, that the court erred in failing to make any findings with regard to Kokosing's alleged negligence and in finding that Riemenschneider was comparatively negligent. Because we have determined that ODOT was not negligent, issues regarding Kokosing's alleged negligence and Riemenschneider's comparative negligence as related to Roadway's cause of action against ODOT are moot, and we decline to address them. See App.R. 12(A)(1)(c). For the foregoing reasons, the first, second and fourth assignments of error are overruled, and the third and fifth assignments of error are moot. Accordingly, the judgment of the Court of Claims of Ohio is hereby affirmed. _______________ PETREE, J. KENNEDY and McCORMAC, JJ., concur. McCORMAC, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution. 1 As noted by the trial court, trial testimony was inconsistent as to the actual usable lane width of the temporary roadway. ODOT's witnesses initially testified that the reduced usable lane width was eleven feet. However, Adam Lanier, ODOT's project design engineer, reviewed the drawings submitted with the change order and concluded that the actual usable lane width was ten feet. Furthermore, the September 25, 1996 daily report completed by Paul Haas, ODOT's project inspector, states that the "required" width of the temporary lane was ten feet. 2 Riemenschneider testified that the truck cab was eight-feet wide and each of the two trailers were eight feet six inches wide.

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OPINION {¶ 1} Defendant-appellant Brandi Rhinehart appeals her conviction entered by the Licking County Municipal Court, on one count of physical control while impaired and one count of failure to reinstate, after the trial court found her guilty following appellant's entering pleas of no contest to the charges. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE CASE AND FACTS {¶ 2} On May 6, 2005, appellant was arrested on one count of operating a motor vehicle under the influence of alcohol, in violation of R.C. 4511.19 (A)(1)(a); one count of driving under suspension, in violation of R.C. 4510.11; and one count of failure to reinstate, in violation of R.C. 4510.21. Appellant appeared before the trial court on May 11, 2005, and entered pleas of not guilty to the charges. On July 20, 2005, appellant filed a Motion for Leave to File Untimely Motion to Suppress, which the trial court granted. Appellant's motion to suppress, which was filed contemporaneously with her request for leave, asserted the evidence obtained by law enforcement officers should be suppressed as the stop of appellant constituted an illegal search and seizure in violation of her Fourth Amendment rights. The trial court conducted a hearing on the motion to suppress on August 22, 2005. {¶ 3} The following evidence was adduced at the hearing. {¶ 4} Ptl. Ray Lewis of the Newark Police Department testified he was on routine patrol during the early morning hours on May 6, 2005, when he observed two vehicles parked along Fifth Street, near Church Street, in Newark, Ohio. The first vehicle, a Cadillac, was parked appropriately. The second vehicle, a Mustang, was parked at an angle, not fully in the parallel parking spot, with the engine running and its headlights illuminated. No one was in the vehicle. Ptl. Lewis noticed a black male was leaning into the Cadillac, and his entire upper torso was inside the vehicle. The patrolman approached the Cadillac and asked the male for identification. Ptl. Lewis noted the male "appeared to be very young, not twenty-one (21) and obviously * * * intoxicated". Tr. of Suppression Hearing at 7. When Ptl. Lewis asked the male his name, he responded, "Gerard Jones".1 The male did not have any identification, but provided the officer with a social security number, which corresponded to the name of "Gerard Jones". Ptl. Lewis instructed the male to return to his vehicle while he spoke to the female in the Cadillac. {¶ 5} Ptl. Lewis asked the female, who was ultimately identified as appellant, if she was okay and what she was doing there. Appellant informed the officer the male was not bothering her and a friend had dropped her off. Appellant did not know who owned the vehicle in which she was sitting. During the conversation, appellant referred to the male as "Mike". Ptl. Lewis, now realizing the male was one Michael Hale with whom he was familiar, turned his attention back to Hale. The patrolman ultimately arrested Hale. After approximately five minutes, the officer returned to appellant. Appellant informed the officer she was returning from Mojo's in Heath, Ohio. When Ptl. Lewis asked appellant if she had had anything to drink, she implied she had had something to drink. Appellant reiterated she did not know who owned the vehicle, but had been dropped off at the location by a person named Amy Babcock. While obtaining appellant's identification, the officer learned appellant had a suspended license. Ptl. Lewis ultimately arrested appellant for driving under suspension, and transported her to the Licking County Jail. {¶ 6} Ptl. Lewis added, during the course of his conversation with appellant, he noticed a strong odor of alcohol emanating from her person, and her speech was slurred. At the Justice Center, Ptl. Lewis administered the horizontal gaze nystagmus test upon appellant. After receiving six out of six clues, the patrolman asked appellant to proceed with further testing. Appellant stated she did not wish to undergo any further testing after the patrolman told her she was not required to do so. Thereafter, Ptl. Lewis advised appellant she was also being charged with operating a motor vehicle while under the influence of alcohol. Appellant refused to take a breath test. {¶ 7} On cross-examination, Ptl. Lewis noted, although he had detected an odor of alcohol emanating from appellant's person during his initial encounter with her, his concern at that time was her welfare. As such, the patrolman did not become concerned with the possibility of intoxication until he approached appellant the second time. {¶ 8} Upon conclusion of Ptl. Lewis' testimony and closing arguments by counsel for both parties, the trial court overruled appellant's motion to suppress. The trial court specifically found the contact between Ptl. Lewis and appellant was a consensual encounter. The trial court further found, during the encounter, certain indicators heightened the patrolman's suspicion and developed into a reasonable, articulable suspicion to continue the investigation. The trial court concluded the patrolman had probable cause to arrest appellant for driving under suspension. The trial court memorialized its decision via Judgment Entry filed August 22, 2005. {¶ 9} On August 25, 2005, appellant appeared before the trial court, withdrew her former pleas of not guilty, and entered pleas of no contest to an amended charge of physical control while impaired, and failure to reinstate. The trial court accepted appellant's no contest pleas, found her guilty, and proceeded to sentencing. The trial court imposed fines totaling $250 plus court costs, but did not impose a jail term. The trial court memorialized the conviction via Journal Entry filed August 25, 2005. {¶ 10} It is from that journal entry appellant appeals, raising as her sole assignment of error: {¶ 11} "I. THE APPELLANT WAS DENIED DUE PROCESS DUE TO THE TRIAL COURTS FAILURE TO SUPPRESS EVIDENCE OBTAINED IN VIOLATION OF THE RIGHTS GRANTED TO HER BY THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND SECTION 14, ARTICLE 1 OF THE OHIO CONSTITUTION." I {¶ 12} In her sole assignment of error, appellant argues the trial court erred in denying her motion to suppress. We disagree. {¶ 13} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's finding of fact. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in the given case. State v. Curry (1994), 95 Ohio App. 3d 93,96; State v. Claytor (1993), 85 Ohio App. 3d 623, 627; State v.Guysinger (1993), 86 Ohio App. 3d 592. As the United States Supreme Court held in Ornelas v. U.S. (1996), 517 U.S. 690,116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911, ". . . as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." {¶ 14} Essentially, appellant argues the trial court incorrectly decided the ultimate issues raised in the motion to suppress, i.e., whether the encounter was consensual or a stop in which appellant's Fourth Amendment rights were implicated. {¶ 15} In Terry v. Ohio (1968), 392 U.S. 1, 22,88 S. Ct. 1868, 20 L. Ed. 2d 889, the United States Supreme Court determined "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." However, for the propriety of a brief investigatory stop pursuant to Terry, the police officer involved "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory stop "must be viewed in the light of the totality of the surrounding circumstances" presented to the police officer. State v. Freeman (1980), 64 Ohio St. 2d 291, paragraph one of the syllabus. {¶ 16} A stop does not have to meet the Terry test if it involves a consensual encounter. A consensual police encounter versus a Terry stop is explained in State v. Taylor (1995),106 Ohio App. 3d 741: {¶ 17} "The first type is a consensual encounter. Encounters are consensual where the police merely approach a person in a public place, engage the person in conversation, request information, and the person is free not to answer and walk away. * * * The request to examine one's identification does not make an encounter nonconsensual. * * * Nor does the request to search a person's belongings. * * * The Fourth Amendment guarantees are not implicated in such an encounter unless the police officer has by either physical force or show of authority restrained the person's liberty so that a reasonable person would not feel free to decline the officer's requests or otherwise terminate the encounter. * * * Once a person's liberty has been restrained, the encounter loses its consensual nature and falls into one of the next two Supreme Court categories. {¶ 18} "* * * {¶ 19} "The second type of encounter is a Terry stop or an investigatory detention. The investigatory detention is more intrusive than a consensual encounter, but less intrusive than a formal custodial arrest. The investigatory detention is limited in duration and purpose and can only last as long as it takes a police officer to confirm or to dispel his suspicions. * * * A person is seized under this category when, in view of all the circumstances surrounding the incident, by means of physical force or show of authority a reasonable person would have believed that he was not free to leave or is compelled to respond to questions. {¶ 20} "* * * {¶ 21} "The third type of encounter involves a seizure that is the equivalent of an arrest. To perform such a seizure the police officer must have probable cause." Id. at 747-748. (Citations omitted). (Emphasis added). {¶ 22} We find the initial encounter between Ptl. Lewis and appellant was consensual in nature. Ptl. Lewis did not effectuate a stop of appellant. The officer approached appellant who was sitting in a parked vehicle with the engine running. A law enforcement officer does not need reasonable suspicion merely to approach an individual to make reasonable inquiries. State v.Phillips, Licking App. No. 2004CA00093, 2005-Ohio-3822. Because the initial encounter between appellant and Ptl. Lewis was consensual, appellant's Fourth Amendment rights were not immediately implicated. {¶ 23} We now turn our attention to the patrolman's subsequent contact with appellant. The record reveals Ptl. Lewis spoke with Michael Hale for approximately five minutes before returning to appellant. The patrolman asked appellant for identification, and she provided him with a green state identification card, a non-driver identification. Ptl. Lewis became concerned appellant did not have a driver's license, and confirmed this suspicion through dispatch. During this second contact, the officer also noticed a strong odor of alcohol emanating from appellant's person. These facts provided the officer with reasonable suspicion for the continued detention and, ultimately, along with other evidence of alcohol impairment, probable cause to arrest appellant. Accordingly, we find the trial court did not err in overruling appellant's motion to suppress. {¶ 24} Appellant's sole assignment of error is overruled. {¶ 25} The judgment of the Licking County Court of Common Pleas is affirmed. Hoffman, J. Gwin, P.J. and Edwards, J. concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to appellant. 1 The officer's incident report indicated the name given was "Jarrod Jones".

2016-07-06 06:36:07.5203+00

OPINION *Page 2 {¶ 1} Plaintiffs-appellants Jacob and Tammy Garber appeal a judgment of the Court of Common Pleas of Richland County, Ohio, which sustained the motion of defendant-appellee Buckeye Chrysler-Jeep-Dodge of Shelby, L.L.C., to stay the matter pending arbitration pursuant to the parties' contract. Appellants assign one error: {¶ 2} "I. THE TRIAL COURT ERRED BY GRANTING DEFENDANT-APPELLEE'S MOTION TO STAY THE PROCEEDINGS PENDING ARBITRATION." {¶ 3} On September 14, 2007, appellants filed a complaint alleging appellee committed various acts which were unfair, deceptive, and unconscionable in selling a used car to appellants. Appellants sought to rescind the purchase contract or in the alternative, prayed for damages. {¶ 4} Defendant FirstMerit Bank was joined as a party defendant because it financed the purchase and agreed to be subject to all claims and defenses appellants could assert against appellee. FirstMerit filed an answer denying liability and also entering a cross claim against appellee for contribution and/or indemnification from appellee should any judgment be ultimately entered against FirstMerit. FirstMerit is not a party to this appeal. {¶ 5} Appellee did not file an answer to the complaint, but moved the court to stay the proceedings pending arbitration of the matter. Appellee attached a copy of the Buyer's Agreement to its motion. {¶ 6} The agreement contains an arbitration clause set out in a box separate from the financial information. It states: "Arbitration I agree that any controversy, dispute or claim arising out of or relating to this contract or breach thereof, including any claims *Page 3 asserted in tort, fraud, violations of the Ohio Consumers Sales Practices Act, or otherwise, shall be settled by arbitration in accordance with the rules of the American Arbitration Association. I further agree and understand that I am giving up my right to a trial by jury by agreeing to arbitration; that the costs associated with arbitration shall be assessed against the party requesting arbitration; I further agree that I was given the right and opportunity to discuss this provision with a manager or my attorney; I further acknowledge that arbitration is not required for the purchase or financing of my vehicle and that I have received a copy of the contract containing the arbitration provision." (Emphasis sic.) {¶ 7} The box containing the arbitration clause has a place for the customer to initial the clause. The initials "JRG" appear. {¶ 8} At the bottom of the document, immediately above the signature lines the agreement states in bold: "I agree and understand that anydispute, claim or controversy arising out of or relating to thiscontract or a breach thereof shall be resolved by arbitration pursuantto the terms noted above." Immediately below the above language is a line for the signature of the sales person, a line labeled "accepted by" and two lines for buyers' signatures. Appellant Jacob Garber's signature appears on one of the buyer lines and the other line is blank. {¶ 9} Appellee filed its motion on November 27, 2007. On November 29, 2007, the trial court sustained the motion and stayed the matter. The trial court did not give appellants an opportunity to respond to the motion. {¶ 10} The United States Supreme Court recently decided the case ofBuckeye Check Cashing, Inc. v. Cardegna (2006), 546 U.S. 440,126 S. Ct. 1204, *Page 4 163 L. Ed. 2d 1038. In Buckeye, the Supreme Court reviewed a class-action alleging Buckeye had charged usurious interest rates, and the agreement Buckeye used violated various Florida lending and consumer protection laws. Buckeye moved the trial court to compel arbitration of the claim pursuant to an arbitration clause in the challenged contract. The United States Supreme Court held regardless of whether the challenge is brought in federal or state court, a challenge to the validity to the contract as a whole, not specifically to the arbitration clause, must be submitted to the arbitrator in the first instance. {¶ 11} In ATT Technologies, Inc. v. Communication Workers ofAmerica (1986), 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648, the Supreme Court held the question of whether the parties agreed to arbitrate must be decided by the court, rather than by the arbitrator. The Supreme Court cautioned a challenge to an order to arbitrate should be denied unless it may be said with positive assurance the arbitration clause is not susceptible to any interpretation that would cover the asserted dispute. Doubts should be resolved in favor of coverage. {¶ 12} The Ohio Supreme Court explained Ohio arbitration law inMaestle v. Best Buy Company, 100 Ohio St. 3d 330, 2003-Ohio-6465,800 N.E.2d 7. Ohio has two different procedures for motions to stay proceedings pending arbitration set out in two separate statutes, R.C. 2711.02 and R.C. 2711.03. {¶ 13} R.C. 2111.02 (B) provides: "If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on the *Page 5 application of one of the parties stay the trial of action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration." {¶ 14} By contrast, R.C. 2711.03 (A) provides a party who alleges another party has failed to perform under a written agreement for arbitration may petition any court of common pleas having jurisdiction to issue an order that the arbitration proceed in the manner provided for in the written agreement. R.C. 2711.03 states: "The court shall hear the parties, and upon being satisfied the making of the agreement for arbitration or the failure to comply with the agreement is not an issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the agreement." {¶ 15} The Maestle court found the procedural requirements set out in R.C. 2711.03 do not apply to a motion for stay made pursuant to R.C. 2711.02. The Supreme Court found a party may seek arbitration under both statutes, but if the petition only cites R.C. 2711.02, the trial court is not required to comply with any of the procedural requirements contained in R.C. 2711.03, Maestle, at paragraph 18. {¶ 16} In Lou Carbone Plumbing, Inc. v. Domestic Linen Supply Laundry Company, Trumbull App. No. 2002-T-0026, 2002-Ohio-7169, the 11th District Court of Appeals reviewed a situation where the appellant who opposed the arbitration challenged the validity of the entire contract. The court found an arbitration clause is essentially a contract within a contract, and hence an alleged failure of the overall contract does not necessarily invalidate the arbitration clause,Carbone at 7, citing ABM Farms, Inc. v. Woods, 81 Ohio St. 3d 498,1998-Ohio-612, 692 N.E.2d 574. The Carbone court concluded a party challenging a motion to stay pending arbitration must *Page 6 show the arbitration provision itself, not the contract in general, was fraudulently induced or is otherwise unenforceable. We agree. Reading the United States Supreme Court decisions in Buckeye andATT together, we find a general challenge to the entire contract, including the arbitration clause, must be submitted to the arbitrator to determine the validity of the entire contract. By contrast, if there is a specific challenge to the validity of the arbitration clause for reasons other than the challenge to the entire contract, then the trial court must first resolve the validity of the arbitration clause before ordering a stay and compelling arbitration. {¶ 17} Appellants' complaint only challenges the contract as a whole, and does not contain any separate, independent challenge to the arbitration clause. We find because appellants' complaint did not challenge the arbitration clause, appellants have waived any such challenge. Appellants' complaint submitted the matter to the trial court on the entire contract. For this reason, we find the trial court did not err in basing its decision on the pleadings and appellee's motion. Appellee's motion was made pursuant to R.C. 2711.02, which only requires the court to be satisfied the matter is referable to arbitration. The trial court is not required to conduct a hearing or give the appellants further opportunity to make a specific challenge to the arbitration clause. {¶ 18} Appellants also argue plaintiff-appellant Tammy Garber never co-signed the purchase agreement, and did not agree to the arbitration clause. Appellee responds Tammy Garber is not a proper party to the action. We do not reach these issues. Where an action involves both arbitrable and non-arbitrable claims, the entire proceeding must be stayed until the issues subject to arbitration are resolved,McGuffey v. Lenscrafters, Inc. (2001), 141 Ohio App. 3d 44,749 N.E.2d 825. *Page 7 {¶ 19} We review a trial court's judgment on a motion to stay proceedings and compel arbitration using the abuse of discretion standard, Eagle v. Fred Martin Motor Company, 157 Ohio App. 3d 150,2004-Ohio-829, 809 N.E.2d 1161. An abuse of discretion implies the trial court's attitude is unreasonable, arbitrary, or unconscionable, see, e.g., Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217,450 N.E.2d 1140. A decision is unreasonable if there is no sound reasoning process that would support the decision, AAAA Enterprises, Inc. v. River PlaceCommunity Urban Redevelopment Corporation (1990), 50 Ohio St. 3d 157 at 161, 553 N.E.2d 597. {¶ 20} We conclude the trial court did not abuse its discretion in sustaining the motion to stay proceedings and compel arbitration. {¶ 21} The assignment of error is overruled. {¶ 22} For the foregoing reasons, the judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed. By Gwin, P.J., Wise, J., and Delaney, J., concur *Page 8 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed. Costs to appellants *Page 1

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DECISION AND JOURNAL ENTRY {¶ 1} Plaintiff-Appellant, Janice L. Kelly, appeals from the judgment of the Summit County Court of Common Pleas, Probate Division, which determined that Barbara A. Kelly's non-IRA accounts were properly distributed upon her death to Richard Wachter. This Court affirms. I {¶ 2} This matter is on appeal before this Court for a second time. Accordingly, we first recount its procedural and factual history. Barbara A. Kelly, now deceased, was a member of The Equitable Federal Credit Union, f/d/b/a May Associates Federal Credit Union, ("the Credit Union"). Barbara held five non-IRA accounts at the time of her death, all captioned with her member number, 5003. These accounts served as the basis of the underlying action between her daughter, Janice L. Kelly, and her nephew, Richard Wachter. *Page 2 {¶ 3} The documents that Barbara executed relative to her 5003 account are briefly recapped here. The Credit Union requires its members execute a "Share Account Card and Agreement" ("SACA") to identify the account holder and the nature of the account. In the instant matter, the front side of the SACA was entirely blank except for the member number 5003. The SACA is perforated in the middle, and below the perforation on the front is a subtitle "Share Account Agreement" which contains the default provisions if certain items on the SACA form are not completed. {¶ 4} On the reverse side of the SACA form are more default provisions, as well as boxes for determining whether the account is an individual account, a joint account with survivorship, or a joint account without survivorship. Again, these boxes were not marked and the only information on that side of the SACA was Wachter's address, phone number, social security number, and date of birth. The SACA form was signed by Richard L. Wachter on July 5, 2003 and by Barbara A. Kelly on July 23, 2003. Barbara passed away on August 17, 2003. Wachter later withdrew the funds from the five non-IRA accounts because he considered himself having a survivorship interest in them. This prompted Janice to file a concealment action against Wachter as executor of Barbara's estate. Janice later modified her complaint, and the matter proceeded as a declaratory action. Both parties moved for summary judgment in the probate court where it was determined that Janice was entitled to the entire amount contained in Barbara's Credit Union accounts. Wachter timely appealed to this Court, where we determined that the Credit Union's documentation provided sufficient evidence to conclude that Barbara had created a multiple party account with Wachter that contained survivorship provisions. See Kelly v. Wachter, 9th Dist. No. 23516,2007-Ohio-3061. We further concluded, however, that there was insufficient evidence to determine which of the five non-IRA survivorship accounts were *Page 3 covered under the SACA, thus we remanded the case to the trial court to determine to which accounts the survivorship language applied. II First Assignment of Error "THE TRIAL COURT ERRED BY FINDING THE SHARE ACCOUNT CARD AND AGREEMENT APPLIES TO ALL FIVE NON-IRA ACCOUNTS." Second Assignment of Error "THE TRIAL COURT ERRED BY ORDERING THAT THE FUNDS IN ALL FIVE NON-IRA ACCOUNTS ARE NOT PART OF THE ESTATE OF BARBARA KELLY AND PROPERLY PASSED TO RICHARD WACHTER OUTSIDE OF PROBATE AT THE TIME OF DEATH OF BARBARA KELLY." {¶ 5} Though not providing any standard of review nor separately discussing each assignment of error in her brief pursuant to App. R. 16(A)(7) and Loc. R. 7(B)(7), Janice effectively argues that the trial court's determination was against the weight of the evidence when it found that the SACA applied to all five of Barbara's non-IRA accounts. We disagree. {¶ 6} This Court applies the standard of review set forth in C.E.Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279, syllabus, when analyzing a manifest weight argument in the context of a civil trial. Huntington Natl. Bank v. Chappell, 9th Dist. No. 06CA008979, 2007-Ohio-4344, at ¶ 4, citing State v. Wilson, 113 Ohio St. 3d 382,2007-Ohio-2202, at ¶ 24. "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." Wilson at ¶ 24, quoting C.E. Morris at syllabus. When applying the aforementioned standard, a reviewing court "has an obligation to presume that the findings of the trier of fact are correct." Wilson at ¶ 24, quoting Seasons Coal Co., Inc. v.Cleveland (1984), 10 Ohio St. 3d 77, 80-81. This is because the trier of fact is in the best position "to view the witnesses and observe *Page 4 their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony."Seasons Coal, 10 Ohio St.3d at 80. While "[a] finding of an error in law is a legitimate ground for reversal, a difference of opinion on credibility of witnesses and evidence is not." Id. at 81. Thus, in a civil manifest weight of the evidence analysis a reviewing court may not simply "reweigh the evidence and substitute its judgment for that of the [trier of fact]." Wilson at ¶ 40. Compare State v. Thompkins (1997),78 Ohio St. 3d 380, 387 (describing the reviewing court's role in analyzing a criminal manifest weight of the evidence argument as that of the "thirteenth juror"). {¶ 7} On remand, the bench trial of this matter consisted almost entirely of the testimony of Madeline Smith, assistant manager at the Credit Union. Specific to determining which accounts were covered under the SACA executed in July 2003, Smith testified that only one form, a SACA, was used to open an account, determine account ownership, and provide the ownership designation on an account. Smith further testified that it was possible for a member to have different types of account ownership designations with the Credit Union (i.e., an individual account, a joint survivorship account, and a payable on death account), but in order to accomplish that goal, the member would have to complete a separate SACA for each account that had a different ownership designation. Smith stated that each of those separately executed SACAs would result in the assignment of different member account numbers. Smith clarified, however, that if a member had multiple accounts which were opened at different times, all of which had the same ownership designation, they would all be captioned under one member account number, with subaccount designations. {¶ 8} Specific to determining the relationship of Barbara's accounts, Smith testified that "[t]he member number, the 5003, is the heading account. All subaccounts belong to that *Page 5 membership, to whoever owns 5003[.]" Smith stated that the dates can differ as to when each subaccount was opened and depending on the nature of the subaccount, could have a different maturity date (as in the case of a certificate of deposit), but if they all had the same ownership type, they would be captioned under only one member number or "heading account." Smith explained that the Credit Union used "dash numbers" or a "trailer number" to identify and code the type of subaccount that fell within a member's account. According to Smith, trailer number "08" following Barbara's member account number meant that "5003-08" was a money market account; similarly, "5003-09" indicated that it was a regular checking account under Barbara's 5003 member account. {¶ 9} Smith also confirmed that transaction statements from the Credit Union prior to 1992 showed only Barbara's name as the account holder. In February 1992, however, Barbara completed a SACA which, similar to the one in this case, was blank with exception of Barbara and Wachter's signatures and social security numbers at the bottom and the member number "5003" at the top. Smith testified that the 1992 SACA changed the 5003 account to one that was joint with Wachter. Accordingly, the Credit Union statements from March and May 1993 for subaccounts 5003-25 and 5003-27 respectively were introduced, which showed both Barbara and Wachter's name as account holders, consistent with the SACA then on file. Similarly, in August 1995, Barbara executed another SACA which was also blank, except for her signature and an "X" next to "Individual." Smith testified that the 1995 SACA returned Barbara's 5003 account to an individual account status and correspondingly, Credit Union statements issued after that date no longer had Wachter's name listed as an account holder. The record likewise contains evidence that after the 2003 SACA at issue in this case was executed, a September 2003 Credit Union statement listed both Barbara and Wachter as account holders. *Page 6 {¶ 10} It is clear to this Court that the trial court's decision was not against the weight of the evidence, as Smith provided unequivocal testimony that one SACA governs the member's "heading account" and that any subaccounts created thereunder are subject to the same ownership provisions that govern the heading account. Moreover, the account holder names listed on the Credit Union account statements align with the corresponding SACAs that were in effect at the time the statement was issued and are also consistent with Smith's testimony as to how the heading accounts and subaccounts are treated internally. {¶ 11} Janice also maintains that the "joint account with survivorship" ownership designation applies only to the heading account numbered 5003 because that is the only number written on the 2003 SACA. She further asserts that the Credit Union's employees could not agree amongst themselves as to which accounts were governed by the 2003 SACA and that they had no documented rules or regulations in place that would dictate that the subaccounts, too, were considered joint accounts with survivorship. To bolster her argument, Janice points to our first determination of this matter where we found her case analogous toWright v. Bloom (1994), 69 Ohio St. 3d 596, in that there was an absence of "evidence in the record of the Credit Union's * * * rules and regulations * * * [to] determine to which accounts [the] survivorship language applies." Kelly at ¶ 19. Because Smith's testimony indicated that the Credit Union does not have written or printed rules defining how a multiple party account is created or describing how member account and subaccount numbers are assigned, Janice argues that there are, in effect, no rules or regulations governing these processes. We disagree. {¶ 12} In the first appeal of this matter, the record reflected that the Credit Union's president, Mark Brunty, equivocated as to the rules and regulations governing the ownership of multiple accounts under the same member number. He stated that he was "not sure" whether *Page 7 each of the five accounts at issue would require a separate SACA to determine ownership, but indicated that "[w]e would need to check with Madeline [Smith]." Id. at ¶ 20. Furthermore, Brunty did not refer to any documented rules or regulations, as was specifically the case inWright. Wright, 69 Ohio St.3d at 597 (noting that the contested bank account was governed by "Account Rules and Regulations" which were not included in the record of that case). Instead, Brunty explicitly stated that Smith would be able to inform the court on whether or not separate SACAs were required for each sub account. {¶ 13} On remand, Smith's uncontroverted testimony confirmed that it was the Credit Union's policy that only one form of account designation could apply to one member account number, thus Janice's contention that the five subaccounts held under Barbara's 5003 account could somehow have different designations per account is in error. Additionally, Smith testified that the Credit Union had policies and practices in place which were consistently applied to all accounts. While Smith admitted that the specifics relative to what accounts are governed by the SACA are not retained in any written or printed regulation at the Credit Union, it is clear from her testimony that the Credit Union's unwritten practices were consistently followed. Likewise, the trial evidence supports a finding that these unwritten practices were uniformly applied in Janice's case as well. We consider Smith's testimony and corresponding evidence about the changes Barbara made to the account ownership status between 1992 and 1995 to be equally as adequate as if the Credit Union was able to produce a written manual documenting such information. Based on a clearer understanding of how the Credit Union routinely treats a SACA and how one SACA governs both the heading account and its subaccounts, we are convinced that the trial court's decision was based on competent and credible evidence. *Page 8 {¶ 14} Upon reviewing the record, we consider there to be ample evidence that ownership of the 5003 member account and its subaccounts were governed by the names and ownership designations made on the July 2003 SACA. Having previously concluded that the July 2003 SACA reflected that Barbara and Wachter had joint ownership with survivorship in member account 5003, we find that the trial court correctly determined that the funds in all five non-IRA accounts had properly passed to Wachter outside of probate at the time of Barbara's death. Janice's first and second assignments of error are overruled. Third Assignment of Error "THE TRIAL COURT ERRED BY NOT FINDING THE FIVE SEPARATE NON-IRA ACCOUNTS WERE NOT MULTIPLE PARTY ACCOUNTS." {¶ 15} Janice's third assignment of error, though not separately captioned or articulated in her brief, asserts that the trial court erred by finding the non-IRA accounts were multiple party accounts. Because this court previously determined that exact issue in the last appeal of this matter, the law of the case precludes us from addressing it again at this time. See Nolan v. Nolan (1984), 11 Ohio St. 3d 1, 3 (explaining that "the [law of the case] doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels"). Therefore, Janice's third assignment of error is not well taken. III {¶ 16} Janice's assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Probate Court is affirmed. Judgment affirmed. *Page 9 The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30. Costs taxed to Appellant. CARR, P. J. DICKINSON, J. CONCUR *Page 1

2016-07-06 06:36:07.660424+00

JOURNAL ENTRY and OPINION Clarence Johnson, after completing his two-year prison term for attempted rape, filed a delayed appeal from the common pleas court's order of sentence, which failed to advise him about post-release control. On appeal, he challenges the Adult Parole Authority's imposition of post-release control and requests that we vacate this imposition, because the trial court failed to inform him that post-release control would be part of his sentence. After a careful review of Woods v. Telb (2000), 89 Ohio St. 3d 504, and subsequent decisions from our court on this issue, we have determined that R.C. 2967.28(B) mandates post-release control as part of the sentence for a felony sex offense and therefore we cannot vacate his post-release control sanctions but must remand this case for resentencing for the limited purpose of proper notification by the court. The record before us reveals that, on April 8, 1999, a grand jury indicted Clarence Johnson on eight counts of rape, each with a sexually violent predator specification. Thereafter, as part of an agreement with the state, he pled guilty to an amended count of attempted rape with the specification deleted, the state nolled the remaining charges, and the court imposed a sentence of two years which the state and Johnson had agreed upon as part of a plea bargain. During the combined plea and sentencing hearing, however, the court did not inform Johnson that he would be subject to post-release control, nor did it include post-release control in its sentencing order. Johnson has since completed his two-year prison term, and he now appeals1 the imposition of post-release control by the Adult Parole Authority (APA).He raises one assignment of error, which states: BECAUSE THE TRIAL COURT FAILED TO ADVISE THE APPELLANT OF THE POSSIBILITY OF POST-RELEASE CONTROL SUPERVISION AT THE TIME OF HIS PLEA ON CR [374843] IN VIOLATION OF R.C. 2943.032, THE ADULT PAROLE AUTHORITY LACKS JURISDICTION TO SUPERVISE MR. JOHNSON PURSUANT TO CR [374843]. Johnson argues that he should not be subject to post-release control because the trial court failed to inform him at his combined plea and sentencing hearing that post-release control would be part of his sentence. The state concedes that based on decisions from our court, Johnson's position has merit, but it argues that because he pleaded to a felony sex offense, Johnson should still be subject to post-release control because it is mandatory for such an offense pursuant to R.C.2967.28. The new sentencing scheme imposed by SB 2 replaces parole with post-release control. This scheme creates two categories of post-release control sanctions: mandatory and discretionary. Pursuant to R.C. 2967.28(B), post-release control is mandatory for first degree felonies, second degree felonies, felony sex offenses, and third degree felonies that are not felony sex offenses and in commission of which the offender caused or threatened to cause physical harm to a person. Specifically, post-release control for those convicted of first degree felonies and felony sex offenses shall be a period of five years. R.C. 2967.28(B)(1). Post-release control for those convicted of second degree felonies that are not felony sex offenses and third degree felonies that are not felony sex offenses and in the commission of which the offender caused harm to a person shall be a period of three years. R.C. 2967.28(B)(2) and (3). Moreover, R.C. 2967.28(C) authorizes post-release control for those imprisoned for other felonies at the discretion of the Parole Board. For post-release control of this variety, R.C. 2967.28(D) sets forth the factors that the APA should consider in determining whether to impose a period of post-release control, including the offender's criminal history and the prisoner's conduct while imprisoned. After considering those factors, the board shall then determine whether a post-release control sanction is necessary and, if so, which post-release control sanction or combination of post-release control sanctions is reasonable under the circumstances. R.C. 2967.28(D). In addition, R.C. 2929.19(B)(3) requires that a sentencing court shall notify the offender that he will be supervised under R.C. 2967.28 after he leaves prison if he is being sentenced for a felony of the first degree or second degree, for a felony sex offense, or for a felony of the third degree in the commission of which the offender caused or threatened to cause physical harm to a person. R.C. 2929.19(B)(3)(c). For offenders guilty of a felony of the third degree not involving the use of physical harm, and felony of the fourth and fifth degree, the statute requires the court to notify the offender that he may be supervised under R.C. 2967.28 after leaving prison. R.C. 2929.19(B)(3)(d). In Woods v. Telb, 89 Ohio St. 3d 504, 2000-Ohio-171, Woods challenged the constitutionality of discretionary post-release control. There, convicted of a fifth degree felony, after serving his complete prison term, he challenged the three-year post-release control sanction imposed by the APA. He argued that R.C. 2967.28 violated the separation of powers doctrine, because it delegated the powers of imposing post-release control to the APA, and therefore usurped judicial authority. In its opinion, the Supreme Court of Ohio emphasized that, in contrast to the bad-time statute, post-release control is part of the original judicially imposed sentence. Id. at 512. The court therefore concluded that the APA's discretion in managing post-release control does not impede the function of the judicial branch. It held however that a trial court must inform the offender at sentencing or at the time of plea hearing that post-release control is part of the offender's sentence. In that case, the record indicated the trial court had advised Woods of discretionary post-release control both in his signed plea form and in his sentencing entry; the court then concluded that the APA's control over Woods's post-release control did not violate the separation of powers doctrine. Woods leaves unanswered the question as to the proper disposition of a case such as the instant case where a court fails to inform a defendant at plea or sentencing that post-release control would be part of the sentence. Our court has issued conflicting decisions on this issue. In State v. Williams (Dec. 7, 2000), Cuyahoga App. No. 76816, State v. Dillon (Nov. 30, 2000), Cuyahoga App. No. 77847, and State v. Wright (Sept. 28, 2000), Cuyahoga App. No. 77748, this court concluded that in accordance with Woods, failure to inform the defendant and include the post-release control sanctions in the sentence warrants a remand for resentencing. Another line of cases from our court, however, has interpreted Woods to dictate a different disposition. In State v. Linen (Dec. 15, 2000), Cuyahoga App. No. 74071, the majority stated that Telb link[s] the propriety of the sentence to the disclosures, and that the necessary corollary is that if the disclosures are not made, the post-release control sanctions do not become part of the sentence. See, also, State v. Murphy, Cuyahoga App. No. 80460, 2002-Ohio-3452; State v. Newman (Jan. 31, 2002), Cuyahoga App. No. 80034; State v. Hart (May 31, 2001), Cuyahoga App. No. 78170; State v. Mickey (April 5, 2001), Cuyahoga App. No. 77889; State v. Hyde (Jan. 11, 2001), Cuyhoga App. No. 77592; State v. Morrissey (Dec. 18, 2000), Cuyahoga App. No. 77179. Our careful study of Woods indicates that only the constitutionality of the discretionary post-release control is challenged in that case; as the court noted repeatedly throughout its analysis, the constitutionality of mandatory post-release control, i.e., for those convicted of first or second degree felonies, felony sex offense, or certain third degree felonies, was never challenged in that case. Id. at fn. 3, fn. 4, and at 18. It is then reasonable to interpret Woods to distinguish cases where the APA exercises discretionary control of post-release control on an offender from cases where such sanctions are mandated by the statute: in cases involving APA's exercise of discretionary control, the separation of powers doctrine requires that unless the trial court makes that sanction part of the sentence by informing the defendant, the post-release control does not become part of the sentence. In contrast, cases involving mandatory post-release control do not implicate the separation of powers doctrine, because in these cases, the APA exercises no discretion over whether an offender is subject to the sanctions; rather, the statute mandates its imposition. Consequently, a court's failure to inform the offender of post-release control sanctions in these cases requires a different disposition: such cases must be remanded for resentencing for the limited purpose of notifying the offender of the mandatory post-release control and including this sanction in its sentencing order. We are moreover guided by the Ohio Supreme Court's decision in State v. Beasley (1984), 14 Ohio St. 3d 74. In that case, despite the statutory requirement for the court to impose a minimum of two years for felonious assault, the court only sentenced Beasley to a fine of $500. Subsequently, the state filed a mandamus action in the court of appeals seeking an order requiring the trial judge to impose the statutorily correct sentence. The court of appeals granted the writ, and, in accordance with it, the trial court resentenced Beasley to the mandated two to 15 year sentence. Beasley appealed alleging double jeopardy. On appeal, the supreme court held that the trial court's correction of its statutorily incorrect sentence did not violate the constitutional guarantee of double jeopardy, because society's interest in enforcing the law, and in meting out the punishment the legislature has deemed just, must be served. Id. at 75. The court cited Colegrove v. Burns (1964),175 Ohio St. 437, 438, where it stated: "`* * * Crimes are statutory, as are the penalties therefor, and the only sentence which a trial judge may impose is that provided for by statute * * *. A court has no power to substitute a different sentence for that provided for by law.' The court in Beasley further reasoned: Any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void. The applicable sentencing statute in this case, R.C. 2929.11, mandates a two to 15 year prison term and an optional fine for felonious assault. The trial court disregarded the statute and imposed only a fine. In doing so the trial court exceeded its authority and this sentence must be considered void. Jeopardy did not attach to the void sentence, and, therefore, the court's imposition of the correct sentence did not constitute double jeopardy. Beasley, 14 Ohio St.3d at 75. In accordance with Beasley, therefore, where post-release control is mandated by statute, a trial court lacks authority to alter or to eliminate this legislatively imposed sanction. Here, we share the view expressed by the dissenting opinion in State v. Linen, which reasoned that a trial court has two duties here: it is required to inform the defendant of this sanction at the time of the plea or at sentencing, and it is statutorily bound to include mandatory post-release control in its sentence. The Linen dissent concluded that the court's failure to notify and to include post-release control in its sentence pursuant to R.C.2929.19(B) and 2967.28 warrants a reversal and remand for resentencing.2 We are cognizant of the well-established rule that once a valid sentence has been executed, a trial court no longer has the power to modify the sentence except as provided by the General Assembly. See State v. Hayes (1993), 86 Ohio App. 3d 110, 112, citing State v. Addison (1987), 40 Ohio App. 3d 7. That rule, however, is inapplicable here, where the court did not inform Johnson of mandatory post-release control. When a court fails to perform its statutory duty of disclosing a mandatory punishment and including it as part of its sentence, the original sentence is void in that, the mandatory post-release control has not been properly imposed. Beasley, supra. Furthermore, in such cases, upon remand, the sentencing court is not modifying its sentence, but rather, is correcting a statutorily incorrect sentence. In accordance with the above analysis, we remand the case for the limited purpose of providing proper notice to Johnson and including mandatory post-release control in the court's sentencing order pursuant to R.C. 2929.19(B)(3) and R.C. 2967.28(B). Case remanded for further proceedings in accordance with this opinion. It is ordered that appellee recover of appellant its 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 Cuyahoga County 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. JAMES D. SWEENEY, P.J., CONCURS, ANN DYKE, J., CONCURS IN JUDGMENT ONLY. 1 Johnson filed his direct appeal on the authority of Justo Pratts v. Ohio Adult Parole Authority (Aug. 30, 2001), Cuyahoga App. No. 79897, where our court has determined that the proper avenue for a defendant placed on post-release control without being informed by the sentencing court is through a direct appeal to our court. 2 The majority of the cases where this court have discharged the offender of the post-release control sanctions due to the court's failure of notification involved discretionary post-release control. We are aware of only three cases where we discharged the offender of mandatory post-release control, namely, State v. Hyde, supra, State v. Linen, supra, and State v. Mickey, supra. Our decision here is in line with the view held by the dissents in Hyde and Linen.

2016-07-06 06:36:07.702329+00

DECISION Defendant-appellant, Cathy Doerman, appeals a decision of the Butler County Court of Common Pleas, Domestic Relations Division, settling custody and property issues in a divorce action. Cathy Doerman and plaintiff-appellee, David Doerman, began dating in 1989 and were married in 1994. Mrs. Doerman had two children, Heather and Michael, from a previous marriage. At the time the parties began dating, the children were two and four years old, respectively. In August 1995, Mr. Doerman adopted both children. After experiencing difficulties in their marriage, the parties separated in February 1998. Attempts to obtain a dissolution failed. In November 1998, Mrs. Doerman moved from Butler County to Summit County, taking the children with her. Mr. Doerman filed for divorce on November 19, 1998. Pursuant to Local Rules, Mrs. Doerman was designated residential parent and legal custodian of the children during the pendency of the proceeding. Mr. Doerman was to have "Schedule B" visitation with the children. The events that followed degenerated the situation into what quickly became a contentious custody proceeding. Mrs. Doerman and the children began seeing counselors to whom she made allegations that Mr. Doerman had abused the children. In late December 1998, she told Summit County Children's Services that Mr. Doerman was abusing the children. Mrs. Doerman obtained an ex parte civil protection order from the Summit County Domestic Relations Court on December 23, 1998. However, when a hearing was held on the civil protection order request, the court denied the petition and terminated the ex parte order. The Summit County court found that the request appeared to be precipitated by the divorce action filed by Mr. Doerman and that the request was "merely an attempt to thwart a visitation order issued by Butler County." The trial court held a scheduling conference and hearing on a motion to restrict visitation filed by Mrs. Doerman. The parties reached an agreement that Mr. Doerman would have restricted visitation that would be reviewed in a month. On review, the court modified the visitation to unsupervised and set forth a specific visitation schedule. The parties reached an agreement on summer visitation on May 25, 1999 and an agreed entry was filed. On June 21, 1999, Mr. Doerman filed a motion for contempt against Mrs. Doerman alleging that she failed to follow the visitation schedule. A hearing was held on the motion July 23, 1999. Mr. Doerman testified that he had not had visitation with Heather since before Memorial Day weekend. He stated that Mrs. Doerman would bring the children to the designated meeting place and Michael would get out of the car, but Heather would not. He also testified that he did not have all of the scheduled visitations with Michael. He stated that on these instances, he got messages from the children saying they didn't want to come, wanted to spend time with their mother, or that they didn't support "what was going on in the situation" and weren't going to come on visitation. Mr. Doerman also alleged that when he requested information about an All-Star soccer game his daughter was playing in, Mrs. Doerman refused to give him the information and responded that Heather would have to invite him. He stated that he received this type of response on multiple occasions and in multiple situations. Mr. Doerman also asked the court for a specific counseling order so that he could continue counseling with his children. The children were attending counseling sessions with Dr. Janet Dix, a psychologist who deals primarily with children, adolescents and families. Mr. Doerman attended one session with the counselor and scheduled a series of sessions on Thursdays, during his visitation time, so that he and Heather could work together on their relationship. According to Mr. Doerman, Mrs. Doerman cancelled the sessions, telling him he was not the residential custodian and could not make appointments for the children. Mrs. Doerman testified that she tried to talk the children into visiting their father, but that it was their choice and she would not force them to go. The court interviewed the children in camera. At the hearing, there was discussion regarding concern by the children because their father was "fighting for custody." Counsel for Mr. Doerman reiterated that she had repeatedly told opposing counsel and the guardian ad litem that Mr. Doerman was not asking for sole custody and was only asking for shared parenting. On July 23, 1999, based on the evidence at the hearing, the trial court found Mrs. Doerman in contempt for violating the court's visitation order, but stayed a 30-day sentence. The trial court stated that the children did not have a choice, that they would go to visitation with their father and that Mrs. Doerman would order them to go in the same manner she would order them to go to school if they did not want to go. The trial court also ordered that counseling sessions were to be on Thursdays or Mondays when Mr. Doerman had visitation and was residing in Summit County.1 The court also ordered that Mr. Doerman was to receive all information regarding the children's activities. From August through October, Mr. Doerman and Heather met with Dr. Dix on a weekly to biweekly basis. According to Dr. Dix, during this time, visitation went smoothly. On October 24, 1999, an incident occurred which caused the parties to file opposing motions. Mr. Doerman was taking a friend of Heather's home and Heather wanted to stay with her friend. Her father denied the request because she had already spent the majority of the weekend with the friend. Heather began cursing at her father, using vulgarities such as "fuck you" and "you're an asshole." According to Heather, her father hit her on the knee after she swore at him. Mr. Doerman denied that he hit Heather. After returning to Mr. Doerman's, Heather went to another friend's house and refused to come back. The police were called and Heather was charged as an unruly child. After this incident, Heather refused to visit her father. The court found insufficient evidence that Mrs. Doerman willfully refused to allow visitation and denied Mr. Doerman's motion for contempt. The court further found that the incident was the result of Heather throwing a temper tantrum and there was no credible evidence that Mr. Doerman would harm her. Thus, Mrs. Doerman's motion to terminate visitation was denied. The court again ordered Mrs. Doerman to force Heather to attend visitation and counseling with her father. Thereafter, Mr. Doerman filed several motions for contempt alleging that Mrs. Doerman failed to provide visitation on various occasions. The motions in contempt were scheduled for a hearing on March 9, 2000, but the parties requested a continuance of the hearing in order to try to amicably resolve the issues. The court entered an order continuing the hearing and stating that the parties had agreed that Mr. Doerman's contact with Heather would be determined on the basis of psychologist, Dr. Roger Fisher's, recommendations.2 In April 2000, Mr. Doerman filed further motions for contempt for failing to provide visitation and counseling with regard to Heather. On April 18, 2000, the court held a hearing on the previously filed contempt motions that the parties had attempted to settle. The court found Mrs. Doerman in contempt on three instances, but stayed each 30-day jail sentence. The court ordered Mrs. Doerman to serve the previously imposed 30-day sentence for contempt, and ordered that Mr. Doerman be named the temporary residential parent of the children while Mrs. Doerman served the sentence for contempt. Discussions on the record indicate that Heather refused to go with her father, attacked him in the presence of law enforcement officials, and was arrested for domestic violence. On April 24, 2000, the trial court granted Mrs. Doerman's motion for early release. On April 28, 2000, the trial court heard evidence on the issue of temporary custody pending the final hearing. The trial court took the matter under advisement, and issued a temporary order granting legal custody of Heather to Mr. Doerman and physical custody to Mrs. Doerman. Mr. Doerman retained temporary custody of Michael and Mrs. Doerman received "Schedule B" visitation. The parties were to continue counseling with Dr. Fisher. On May 26, 2000, the trial court issued a decision on the issue of temporary allocation of parental rights and responsibilities pending the final hearing. After briefly reviewing the events occurring up until the hearing date, the trial court found that "Mrs. Doerman has thwarted, directly and indirectly, all attempts of the Court to ensure the parties' minor child, Heather, has significant and meaningful contact with Mr. Doerman." The court further found that "Ms. Doerman has also, from time to time, failed to provide Mr. Doerman with significant and meaningful contact with Michael." The court found that Mrs. Doerman had continually attempted to control visitation and that it was in the children's best interest to have significant and meaningful contact with Mr. Doerman. The court found that every time counseling with Heather was ordered by the court, Mrs. Doerman terminated counseling or cancelled sessions. The court found this continued pattern of sabotaging counseling disconcerting. The court found that based on Mrs. Doerman's actions, it had two choices: to return the children to Mrs. Doerman and let the pattern of conduct continue, or to take another approach. The court determined that, if it were to adopt the first approach, it could not foresee any meaningful contact occurring between Heather and Mr. Doerman and, based on previous history, any meaningful progress would be soon destroyed. The court found Mrs. Doerman's arguments regarding Mr. Doerman's ability to parent the children baseless. The court further found that, throughout the entire case, Mr. Doerman "has demonstrated a genuine concern and feelings for the children" and "has continually maintained and complied with the orders of the Court." The court reviewed the statutory factors and ordered that Mr. Doerman be named legal custodian of Heather with Mrs. Doerman retaining physical custody. Mr. Doerman was to have contact with Heather one hour per week for lunch or dinner. Mr. Doerman was named residential parent of Michael with Mrs. Doerman receiving visitation. The parties were ordered to continue counseling with Dr. Fisher, and Mrs. Doerman was ordered to facilitate counseling with Heather. Final hearings occurred on several dates, including July 17, 18, 20, 24 and 25, 2000, September 7, 2000, and January 4, 2001. After the final hearings, but prior to any decision, Mrs. Doerman filed a motion for reallocation of temporary custody, and Mr. Doerman filed a motion in contempt. The motions were heard at an emergency hearing. Evidence presented at the hearing established that Mr. Doerman and Michael discussed the possibility of moving to Butler County and, in the process, looked at housing opportunities, reestablished contacts with Michael's friends, and contacted schools regarding academics and sports opportunities. In a counseling session, Dr. Fisher spoke with Michael about the move. Dr. Fisher testified that Michael was looking forward to the move. Although apprehensive about his mother's reaction, Michael believed Mrs. Doerman would be angry at first, but in the end would work it out. Shortly before the move, Mr. Doerman took Michael for visitation with Mrs. Doerman. While with his mother, Michael called the guardian ad litem and told him he did not want to move to Butler County and wanted to live with his mother. The guardian stated that the call sounded like it was made on a car phone with Mrs. Doerman in the background. Based on his therapy with the family, Dr. Fisher testified that he believed Mrs. Doerman was forcing Michael to make the call as an attempt to demand loyalty from her son. The court looked at the continuing pattern of interference and escalation of issues related to Mrs. Doerman's attempts to terminate Mr. Doerman's custody of Michael. These attempts included legal maneuvering in another forum. This occurred most recently when Mrs. Doerman filed a petition for a writ of habeas corpus in Summit County which, when dismissed, she requested to be changed into a complaint for dependency and neglect. The court looked at ongoing interference with school and sporting activities, and a pattern of contacting the police. The court also looked at what it considered an escalation of aggression on the part of Mrs. Doerman, culminating in a threat of physical violence against Mr. Doerman in the presence of a professional at Summit County Children's Services.3 The court was unable to interview Michael because Mrs. Doerman's whereabouts with the children were unknown. Based on the evidence, the court denied Mrs. Doerman's request for reallocation of custody. After the emergency hearing, further developments occurred. Mrs. Doerman, although aware of the court's orders, refused to return Michael. This caused the court to issue an order that the Summit County Sheriff's Office take custody of Michael and release him to the guardian or Mr. Doerman. The order stated that Mrs. Doerman was to have no contact with Michael. In a decision filed March 1, 2001, the trial court addressed the issue of final allocation of parental rights and responsibilities. The court reviewed the lengthy and protracted history of the case and found the testimony of Dr. Dix of utmost importance in reaching its decision. Based on all the evidence, the trial court determined that Mr. Doerman should be named legal custodian of Heather with Mrs. Doerman retaining physical custody. Counseling was ordered to continue with Dr. Fisher. Mr. Doerman was named residential parent of Michael. Mrs. Doerman was to have no contact with Michael, other than in counseling sessions. On September 4, 2001, the trial court entered a judgment entry and decree of divorce. In its final appealable order, the court ordered child support payments and a division of the parties' property. Mrs. Doerman now appeals various aspects of the trial court's decision. We begin our discussion by noting that Mrs. Doerman filed a pro se brief that contains 32 assignments of error and which, in numerous ways, does not comply with the appellate and local rules.4 Although it is within the power of this court to strike appellant's brief as urged by counsel for Mr. Doerman, this court has carefully considered the issue and determined that, due to the volatile nature of the issues presented in this custody dispute, addressing the issues raised may serve the litigants' best interest. This court is hopeful that appellate consideration of these arguments may serve as a vehicle to lend some degree of finality to this protracted and bitter custody dispute. As mentioned above, appellant's brief contains thirty-two assignments of error. We have carefully reviewed all of the arguments raised by Mrs. Doerman. In the discussion that follows, we have grouped the arguments that are reviewable by this court into the headings below. Custody Decision The majority of Mrs. Doerman's assignments of error in some way relate to the trial court's decision regarding custody of the parties' children. In her brief, Mrs. Doerman requests that we return custody of the children to her. We begin by recognizing that custody decisions "are some of the most difficult and agonizing decisions a trial judge must make." Davis v. Flickinger, 77 Ohio St. 3d 415, 418, 1997-Ohio-260. Accordingly, a trial judge must have wide latitude in considering all the evidence before it, and such a decision must not be reversed absent an abuse of discretion. Id. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. While a trial court's discretion in a custody proceeding is broad, it is not absolute. The trial court must follow the procedure outlined in R.C. 3109.04. When making an initial allocation of parental rights and responsibilities, the primary concern of the trial court is the children's best interest. R.C. 3109.04(B)(1). The trial court must consider all relevant factors related to the children's best interest, including the following factors specified by R.C. 3109.04(F)(1): "(a) The wishes of the child's parents regarding the child's care; (b) If the court has interviewed the child in chambers * * * regarding the child's wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court; (c) The child's interaction and interrelationship with the child's parents, siblings, and any other person who may significantly affect the child's best interest; (d) The child's adjustment to the child's home, school, and community; (e) The mental and physical health of all persons involved in the situation; (f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights; (g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor; (h) Whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child * * *; (i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court; (j) Whether either parent has established a residence, or is planning to establish a residence, outside this state." In making a final custody determination, the trial court found the testimony of Dr. Dix of "utmost importance in reaching its decision." Dr. Dix stated that she could not give a professional opinion on the best interest of the children at the time of the hearing because it had been almost a year since she treated the family. Instead, she discussed her opinion as of the time treatment ended. At the hearing, Dr. Dix testified that when she was treating the family, Mrs. Doerman demonstrated a moderate level of parental alienation syndrome. Dr. Dix testified that in a moderate case, the parent's healthy psychological bond with the children is compromised by rage. The children form an alliance with one parent and have campaigns of deprivation against the other parent, which they are more likely to give up when left alone with the other parent. In this case, Mrs. Doerman's anger with Mr. Doerman affected the children's relationship with their father. Heather formed an alliance with her mother that she was more likely to give up when she was alone with her father. Dr. Dix discussed the symptoms that occur when severe parental alienation syndrome occurs. She stated that the mother is often fanatic, using every mechanism at her disposal, legal and illegal, to prevent visitation. She stated that they are obsessed with antagonism toward their husbands and do not respond to logic, confrontation with reality, or appeals to reason. The children are similarly fanatic, joining together to share the mother's paranoid fantasies about the father. If placed in the father's home, they may run away or be paralyzed by fear. Dr. Dix testified that, in moderate cases, treatment involves keeping children with the mother and forcing development of a good relationship with the father. In severe cases, the children should be removed from the mother because there is no way to have a healthy relationship with the father otherwise. Dr. Dix stated that in moderate cases where a court has ordered treatment and visitation, but the mother continues to sabotage the relationship, the next step is to remove the children from the offending parent. The trial court found that although the situation was moderate when Dr. Dix was counseling the family, it had now progressed to severe. The trial court stated that it had attempted to work with the Doerman family to maintain custody with Mrs. Doerman while ensuring parenting time with Mr. Doerman, as the court believed this was in the best interest of the children when the case originated. The court found that "over the last two years, the Court has watched Mrs. Doerman thwart every attempt of the court to ensure Mr. Doerman's parenting time." The court discussed the steps taken by Mrs. Doerman to destroy counseling and her failure to enforce the order requiring parenting time with Mr. Doerman, including the failure to return Michael. The court further discussed how admonitions against such behavior and imposing a jail term did nothing to dissuade Mrs. Doerman. The court also looked at Mrs. Doerman's repeated attempts to remove the case to another forum, her actions of displacing responsibility for Heather's actions onto others and Mrs. Doerman's failure to respond to logic or reason. Based on these factors, the trial court determined that it was in the best interest of the children that Mr. Doerman be named legal custodian of Heather with Mrs. Doerman retaining physical custody. Mr. Doerman was named residential parent of Michael with Mrs. Doerman having no contact with Michael, other than in counseling sessions. This court has thoroughly reviewed the record in this case, including the various filings and the transcripts of the numerous hearings. Based on our review, we find the trial court's decision was far from an abuse of discretion. It is evident from the record that the trial court repeatedly attempted to work with Mrs. Doerman regarding the issue of custody. However, explanations, admonitions, and even jail time failed to dissuade Mrs. Doerman from her belief that it should be up to the children to decide issues of visitation with their father. Further, even from a review of the record it is evident that Mrs. Doerman repeatedly worked to sabotage any meaningful relationship the children would have with their father. At first these attempts were subtle, such as telling the children they should visit with their father, while also telling them it was their choice. During this time, Mrs. Doerman's words said one thing, while her behavior set a different example. She refused to speak with Mr. Doerman, became upset when he sat anywhere near her at sporting events, referred to him as "Dave" when speaking to the children, and exhibited other negative behavior towards him. Mrs. Doerman refused to provide any type of negative consequence for Heather's behavior when Heather refused to visit with her father. She sought counseling from various counselors, but ended several counseling relationships when suggestions were made regarding her behavior. Mrs. Doerman's negative behaviors continued until Heather's relationship with her father was destroyed and escalated until the point when she refused to return Michael after visitation. Mrs. Doerman's brief discusses various ways in which she feels Mr. Doerman is unable to parent effectively. We find no merit to these arguments. Mrs. Doerman also argues that "the US [sic] Constitution allows [her] to parent her children, as she sees fit, as long as said parenting is not abusive." We note that generally parenting decisions are free from governmental scrutiny. However, when parties file for divorce, issues of the child's best interest take precedence over what parenting style a parent prefers. In this case, Mrs. Doerman's parenting style of allowing her children to make choices in their own lives was at odds with what was in their best interest: regular visitation with their father. There is no abuse of discretion when a trial court orders a parent to see that visitation occurs, even if that order is in conflict with the party's parenting style. Although Mrs. Doerman argues that she does not lack insight as found in the trial court's decision, this court sees this as the paramount problem in this case. From the inception of this case, Mrs. Doerman was unable to see how her anger and rage at Mr. Doerman affected the children's relationship with their father. She was also unable to understand that due to the divorce action changes in parenting time and style were required. Although in many of her arguments, Mrs. Doerman claims that everything was done out of the children's best interest, she fails to see how her actions have actually harmed the children and her, to the point where she no longer has contact with her son. Accordingly, we find no abuse of discretion in the trial court's decision allocating parental rights and responsibilities. Bias of the Trial Judge Mrs. Doerman alleges that the trial court was biased and prejudiced against her. During the course of this litigation, she filed two separate requests to have the trial judge disqualified from the case. On November 5, 1999 and December 7, 1999, Chief Justice Thomas Moyer found no bias, prejudice or disqualifying interest, and denied the disqualification requests. Mrs. Doerman also filed a recusal request with the trial court, alleging that the personal friendship of the judge with Mr. Doerman's attorney was hindering her rights to a fair and impartial trial. We begin by noting that the Chief Justice of the Ohio Supreme Court or his designee has exclusive jurisdiction to disqualify a common pleas judge on the grounds of bias or prejudice. Section 5(C), Article IV, Ohio Constitution; R.C. 2701.03. Beer v. Griffith (1978),54 Ohio St. 2d 440, 441-42. Thus, we are without jurisdiction to rule on any issues of disqualification. Id. We also find no merit to Mrs. Doerman's arguments that the trial court's various decisions were the result of prejudice and bias. A trial judge is presumed not to be biased or prejudiced, and the party alleging bias or prejudice must set forth evidence to overcome the presumption of integrity. Okocha v. Ferenbacher (1995), 101 Ohio App. 3d 309, 322; Statev. Wagner (1992), 80 Ohio App. 3d 88, 93. Mrs. Doerman repeatedly refers to the trial judge's "best friend" relationship with Mr. Doerman's counsel. This argument is the result of a conversation after a hearing in which one of Mrs. Doerman's former attorneys commented on the "best friend" relationship of Mr. Doerman's attorney with the judge. Mr. Doerman's attorney immediately requested to go back on the record to discuss the issue. The trial judge admonished counsel that she had been a police officer for four years, spent seven years in private practice and had numerous friendships of varying levels with attorneys in the area. The judge continued by stating that she does not make decisions based on friendships, but decisions are based on the facts presented, and her written opinions contain the reasons for making decisions. As mentioned above, the trial court's decision in this case was not an abuse of discretion. The reasons for the decision were thoroughly explained in an extensive, detailed, 42-page decision. Instead, the record shows the trial court's ability to be familiar with people in the courtroom, yet remain fair and impartial by making rational decisions based on the law and the facts in the case. See State v. Lewis, Montgomery App. No. 18735, 2001-Ohio-1460. We have reviewed the various other issues and comments raised by Mrs. Doerman and find no merit to her argument that the trial court was biased or prejudiced against her. Although the court at times expressed frustration over Mrs. Doerman's repeated inability to follow the court's orders and facilitate visitation, and her increasing antagonism toward Mr. Doerman throughout the case, the judge was able to remain impartial and did not base its decision on bias or prejudice. See Tandon v. Tandon, Jefferson App. No. 00-JE-16, 2001-Ohio-3157. Mrs. Doerman further argues that the trial judge's voluntary withdrawal from the case is proof of her arguments. Again, we disagree. The trial judge presided over this protracted, contentious dispute for over two years. During this time, the judge listened to repeated disputes by Mrs. Doerman on a number of issues and endured numerous attacks on her integrity. The judge's eventual withdrawal alone is not evidence of bias or prejudice sufficient to rebut the presumption of integrity. State v.Kilburn (Mar. 30, 1998), Warren App. No. CA96-12-130. Mrs. Doerman also argues that the trial court had numerous ex parte conversations with the juvenile court, court security, the guardian ad litem, and counselors. In general, a judge should "neither initiate nor consider ex parte or other communications" in a case. Canon 2 of the Code of Judicial Conduct. However, nothing in the judicial code "preclude[s] a judge from non-substantive ex parte communications on procedural matters affecting prompt disposal of the business of the court." Having reviewed the transcripts and file in this case, we find that the trial court did not act improperly. Finally, Mrs. Doerman argues that the trial court testified during several hearings. Evid.R. 605 states that "[t]he judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." She refers to comments made by the trial court that it was concerned that she had moved to Akron with the children when this fact is not in evidence, discussions by the trial court regarding Heather's arrest for domestic violence when the facts were not specifically testified to, testimony about a conversation which was stricken from the record,5 and other various issues. However, these instances do not equate to the trial court testifying and giving evidence on issues in which it has "personal knowledge of disputed evidentiary facts concerning the proceedings." See Code of Judicial Conduct, Canon 3. Many of the statements were not disputed by the parties and were used to clarify discussions that occurred prior to the hearings, involved procedural matters, or were not relevant to the trial court's ultimate resolution of issues.6 These statements are not equivalent to witness testimony. Transcripts Mrs. Doerman raises several arguments regarding the transcripts of the hearings in this case. She argues that they are incorrect and incomplete, and that she requested a hearing to clarify the transcripts. However, she failed to fully avail herself of the procedures provided in the appellate rules for unavailable transcripts and correction of the record. When transcripts are unavailable, App.R. 9(C) provides as follows: "If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to App.R. 10, who may serve objections or propose amendments to the statement within ten days after service. The statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act prior to the time for transmission of the record pursuant to App.R. 10, and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal." App.R. 9(E) provides the procedure for correction or modification of the record and states as follows: "If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals." Mrs. Doerman failed to follow this procedure. She argues submitted evidence was omitted from the record, but did not provide a copy of this to the trial court in order to have the record corrected. She argues comments made prior to the hearing were not transcribed, and part of a transcript contains "not audible." Although only a small potion was inaudible, Mrs. Doerman failed to follow the proper procedure to supplement the record. She further alleges in her brief that the judge concealed motions and transcripts and tampered with the file. She also alleges that ex parte conversations were recorded and she can only clarify the record by calling the participants as witnesses. At a hearing on July 17, 2001, the court discussed the various pending motions filed by Mrs. Doerman. Mrs. Doerman wanted to have a hearing to review all of the problems with the transcripts. The trial court discussed scheduling the hearing on September 5 and 6. Mrs. Doerman argued that the court was depriving her of a hearing because she wanted the issue heard immediately. She also argued that the September date would be too late for her appeal. The record contains a notice that the hearing was later rescheduled to another date. No further evidence is contained in the record before us regarding correction of the record. It is Mrs. Doerman's responsibility to provide us with a record that is adequate to support any claimed errors. Universal Bank v. McCafferty (1993), 88 Ohio App. 3d 556. It is unclear if Mrs. Doerman's motion was specifically ruled on. If the trial court denied or failed to rule on Mrs. Doerman's motions, she could have filed a motion before this court to have the record corrected. State ex rel. Hunter v. Cuyahoga CountyCourt of Common Pleas, 88 Ohio St. 3d 176, 177, 2000-Ohio-285. Furthermore, we find that even if Mrs. Doerman had properly raised these issues, and the transcripts had been corrected to reflect the allegations in her brief, Mrs. Doerman's arguments still fail to evidence prejudice in the trial court's decision. The failure to provide a complete transcript does not always deny an appellant an effective appeal. State v. Nichols (Mar. 2, 2000), Cuyahoga App. No. 75605, 75606. Many of Mrs. Doerman's arguments, including those regarding ex parte communications, are merely general assertions that the record is incomplete or incorrect, and do not demonstrate prejudice. Any material alleged missing or incorrect must have been utilized by the trial court in making its decision. See McGeorge v. McGeorge (May 22, 2001), Franklin App. No. 00AP-1151. As such, this court finds the record before it is adequate for review. See Nichols. As previously mentioned, the trial court's decision discusses the evidence relied upon and Mr. Doerman's arguments, even if substantiated, would not change our determination that the decision was not an abuse of discretion. Failure to Transfer the Case to Juvenile Court Heather was charged with delinquency in Summit County for unruliness and in Butler County for domestic violence. After each of these charges, Mrs. Doerman requested that the trial court transfer jurisdiction of the custody issue to each of these courts. The trial court denied the requests. Mrs. Doerman argues that, pursuant to In rePoling, 64 Ohio St. 3d 211, 1992-Ohio-144 and In re Stacie MarieHollaender (June 29, 2000), Warren App. No. CA99-08-092, jurisdiction should have been transferred to the juvenile court. However, both of these cases merely recognize the jurisdiction of the juvenile court in custody matters, and do not mandate the result urged by Mrs. Doerman. We have recognized that "a court which obtains jurisdiction over and enters orders with regard to the custody and support of children retains continuing and exclusive jurisdiction over such matters." Clermont Co.Dept. of Human Services v. Walsson (1995), 108 Ohio App. 3d 125, 128. Thus, the domestic relations court had jurisdiction over the custody and support issues in this case. In addition, the Ohio Revised Code grants jurisdiction to the juvenile court to determine "the custody of any child not a ward of another court of this state." R.C. 2151.23(A)(2). Thus, the juvenile court had jurisdiction to determine custody matters as well. The Ohio Supreme Court has recognized the grant of jurisdiction to the juvenile court as existing concurrent to the jurisdiction of the domestic relations court when a divorce proceeding is involved. In rePoling, 64 Ohio St.3d at 215. Accordingly, both courts had concurrent jurisdiction to determine custody matters and the court was not required to transfer the case to the juvenile court. Custody matters regarding Michael would remain in domestic relations court. In addition, pursuant to R.C. 2151.23, the juvenile court did not have jurisdiction over support issues, as it can only determine support issues if "the request is not ancillary to an action for divorce, dissolution or marriage, annulment, or legal separation * * *." R.C. 2151.23(A)(11). Thus, factors of judicial economy would indicate the domestic relations court was the best forum to try all issues related to the divorce action, including custody. We find no merit to Mrs. Doerman's argument that the trial court should have transferred jurisdiction to the juvenile court. Failure of the Trial Court to Award Attorneys Fees Mrs. Doerman next argues that the trial court erred by failing to award attorneys fees to her. It is well-established that an award of attorney fees is within the discretion of the trial court. Rand v. Rand (1985),18 Ohio St. 3d 356, 359. Accordingly, a trial court decision regarding an attorney fee award will not be disturbed unless it is unreasonable, arbitrary, or unconscionable. Dunbar v. Dunbar, 68 Ohio St. 3d 369, 371,1994-Ohio-509. R.C. 3105.18(H) governs the award of attorney's fees at any stage of divorce or legal separation proceedings. According to this provision, the court must determine whether either party will be prevented from fully litigating his or her rights and if that party's rights will be adequately protected without an award. The party seeking an award of attorney fees must demonstrate (1) some financial need for the award, and (2) that the demand for attorney fees is reasonable under the circumstances. Golick v. Golick, Clermont App. Nos. CA99-05-040, CA99-05-045, 2001-Ohio-8641. The trial court must further find that the other party has the ability to pay the attorney fees awarded by the court. R.C. 3105.18(H). Generally, each party should bear primary responsibility for their own attorney fees, particularly when the party requesting the fees has some ability to pay. Id. During the course of this litigation, Mrs. Doerman retained the services of four different attorneys. The transcripts reflect that two of the attorneys withdrew from representation because Mrs. Doerman insisted on pursuing the case in a manner the attorneys felt they could not ethically comply with. At the July 14, 2001 hearing, Mrs. Doerman discussed her need for appointed counsel and argued that she had already spent $80,000, and that no one would take her case without a $10,000 retainer. Mrs. Doerman was gainfully employed during the course of this litigation. For purposes of determining child support, the trial court found Mrs. Doerman's income at $46,350 per year. At one point in the case, the trial court distributed $16,500 from the eventual property settlement to Mrs. Doerman to pay her attorney fees. At one of the hearings, the parties agreed to divide an asset, and Mrs. Doerman received over $20,000 to put toward her legal expenses. Given these facts, we cannot say that Mrs. Doerman was prevented from fully litigating her rights without an award of attorney fees. She has not demonstrated that she has a financial necessity for an award, nor that the fees were reasonable. Mrs. Doerman has been able to more than adequately litigate her rights and the converse is not true simply because she has not yet been able to obtain the outcomes she desires. Accordingly, we find no abuse of discretion in the trial court's decision that each party pay their own attorney fees. Mrs. Doerman also argues that the trial court erred in forcing her to proceed at hearings with an "attorney who refused to meet with her, work with her, and based all it's [sic] questions on what the Plaintiff's [sic] attorney questioned." She further claims her counsel was ineffective. A review of the record shows that Mrs. Doerman's third attorney wanted to withdraw from representation shortly before the final hearing was scheduled, and that Mrs. Doerman did not want the attorney to withdraw. The trial court told the attorney that he was required to continue representing Mrs. Doerman until the court heard Mrs. Doerman specifically tell counsel he was fired. Thus, although Mrs. Doerman now complains that the trial court should not have forced the attorney to continue representing her, the continued representation was at her request. In addition, a complaint of ineffective assistance of counsel is not a proper ground on which to reverse the judgment of a lower court in a civil case where the attorney was employed by a civil litigant.Roth v. Roth (1989), 65 Ohio App. 3d 768, 776. Determination of Termination of Marriage Date The trial court found that the evidence revealed the parties divided their financial accounts and began living separate and apart on February 17, 1998. The court used this date as the de facto termination of the marriage. The phrase "during the marriage" is statutorily presumed to run from the date of the marriage through the date of the final divorce hearing. R.C. 3105.171(A)(2)(a). If, however, the trial court determines that the use of either or both of these dates would be inequitable, then "the court may select dates that it considers equitable in determining marital property." R.C. 3105.171(A)(2)(b). The decision to use another alternative date pursuant to R.C. 3105.171(A)(2)(b) is discretionary and will not be reversed on appeal absent an abuse of discretion. Schneiderv. Schneider (1996), 110 Ohio App. 3d 487, 493. The evidence shows that Mr. Doerman moved out of the marital home on February 17, 1998. At that time, the parties told other people that they had decided to divorce. Shortly thereafter, the parties severed their financial relationship by closing joint accounts and opening separate accounts. Mr. Doerman began voluntarily paying child support to Mrs. Doerman. Based on these facts, the trial court's use of the February 1998 date as the de facto termination of the marriage was not an abuse of discretion. Various Other Arguments Mrs. Doerman argues that the trial court erred by failing to award the children their college funds. In her motion to the trial court on this issue, she states that "the children's college funds were not discussed at trial." Because there was no evidence or decision to review, this assignment of error is without merit. Finally, we note that Mrs. Doerman has raised various other issues in her brief. Among other things, these issues involve: removal of the GAL; failing to appoint counsel for the children; payment of GAL fees; various issues related to the finances of the parties; child support issues; discussions between the trial court and court reporters regarding giving CD's of hearings to Mrs. Doerman; failure to find Mr. Doerman in contempt; failure to enforce Mrs. Doerman's numerous discovery requests and subpoena requests; commission of real estate sale; and counseling orders. We have carefully considered all of the arguments raised by Mrs. Doerman and find no abuse of discretion by the trial court in making these various decisions. In conclusion, we find no merit to any of the issues raised by Mrs. Doerman on appeal. The decision of the trial court is affirmed. Judgment affirmed. POWELL, P.J., YOUNG and VALEN, JJ., concur. 1 In order to facilitate visitation and provide minimum disruption to the children's activities, Mr. Doerman rented an apartment in Summit County near the children. He resided in the apartment during his Thursday through Sunday visitation time. 2 Dr. Dix was unable to continue counseling sessions with the family when Mrs. Doerman withdrew her consent for release of information just prior to the hearing in November 1999. 3 The record shows that Mrs. Doerman sought help from Summit County Children's Services because she claimed she was unable to buy clothes for Heather. The agency contacted Mr. Doerman who offered to bring clothes that the agency could deliver to Heather. When the agency mentioned this to Mrs. Doerman, she became hostile, refused to calm down and stated that if Mr. Doerman tried to bring clothes for Heather, she would "shoot to kill." The agency contacted the sheriff's office regarding the threat. 4 Mrs. Doerman's request to extend the page limit of her brief, "up to 300 pages" was denied by this court. 5 This conversation occurred after the judge left the room and recording equipment was left on. Mrs. Doerman requested the conversation be stricken from the record. At a later hearing, the trial court's comments indicate this conversation included references by Mr. Doerman to the fact that he was looking for a house in Butler County. Mrs. Doerman disputes that the conversation does not contain what the court, Mr. Doerman and his attorney stated at the later hearing. 6 For example, whether or not Mrs. Doerman had prior notice that Mr. Doerman intended to move to Butler County was irrelevant in the trial court's decision on custody matters.

2016-07-06 06:36:14.078362+00

OPINION {¶ 1} The following appeal arises from Geauga County Court of Common Pleas, Domestic Division, wherein appellant, Judith L. Ronyak, now Bogert, appeals a judgment finding her in contempt of court and ordering her to pay for books as well as room and board expenses associated with her daughter's college education in accordance with the terms of an agreed judgment entry. {¶ 2} Appellee, William C. Ronyak, and appellant were married in April 1975. There were three children born of the marriage. On May 18, 1994, appellant and appellee entered into an agreed judgment entry of divorce. The agreed judgment entry contained the following provision: {¶ 3} "IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that in the event any of the parties' children shall attend on a full time basis an accredited college or university matriculating to obtain an undergraduate degree prior to attaining the age of twenty-three (23), the defendant shall pay toward tuition, an amount equal to the tuition at Ohio State college or university and the plaintiff shall pay an amount equal to the room, board and books at any Ohio State college or university for each such child." {¶ 4} On September 4, 1998, appellee filed a motion for an order requiring appellant to show cause why she should not be held in contempt of court for failing to comply with the terms of the agreed judgment entry regarding payment of college expenses in the form of room, board, and books for their daughter, Kristi. Appellee also sought attorney fees. On November 9, 1998, appellant filed a motion to terminate her obligation to pay room, board, and book expenses for Kristi. A hearing was held in front of a magistrate on January 19, 1999. The magistrate determined that appellant was obligated to pay for Kristi's room, board, and books, pursuant to the agreed judgment entry, as well as appellee's attorney fees. {¶ 5} Appellant filed an objection to the magistrate's decision. The trial court adopted the magistrate's findings in a judgment entry dated August 21, 2001, and appellant filed this timely appeal. {¶ 6} Appellant asserts a single assignment of error, which states: {¶ 7} "The trial court abused its discretion in refusing to establish any criteria regarding the Appellant's obligations to pay for room, board and books for the daughter of the parties." {¶ 8} Appellant contends that the trial court erred in not evaluating Kristi's college performance before determining that appellant was in contempt. Specifically, appellant argues that, because Kristi has withdrawn from several classes, received numerous incomplete grades, failed several classes, has attended college for four years, and is not yet a junior, she loses the right to have her mother continue to pay for her room, board, and book expenses. {¶ 9} As a general rule, courts are "without jurisdiction to order parents to support children who have attained the age of majority."1 However, where the parties have entered into an agreement that provides for child support beyond the age of majority and such agreement is incorporated into the divorce decree, the trial court may then enforce the agreement.2 {¶ 10} Moreover, the agreed judgment entry, like a separation agreement, is a contract and is subject to the same rules of construction. Common, unambiguous words appearing in a written instrument will be given their ordinary meaning unless some other meaning is clearly suggested from the face of the document or the overall contents of the instrument.3 {¶ 11} The provision contained in the agreed judgment entry, supra, contains clear, unambiguous language that sets forth four criteria to be met in order for both parents to assume separate duties to finance their children's college education. {¶ 12} First, the child must attend an accredited college or university. The record reveals that Kristi is attending Columbus State Community College and that it is accredited by the North Central Association of Colleges and Schools. Second, the child must be attending classes full time. Although she testified that she had previously withdrawn from classes and received incomplete grades at other times, she testified that she is currently enrolled full-time at Columbus State. Third, the child must be matriculating toward an undergraduate degree. Kristi testified that she is attending Columbus State with the intention of receiving an associate's degree and then going on to obtain a four-year degree. The fourth and final criterion is that the child must be under the age of twenty-three, and the record reveals Kristi was twenty when she testified at the hearing. {¶ 13} Therefore, when the unambiguous terms of the agreed judgment entry provision are given their common, ordinary meaning, it is clear that Kristi has met all the criteria. Appellant is clearly in contempt by refusing to pay for her daughter's room, board, and book expenses. That is to say, for each term where Kristi has met all four criteria; specifically, she is enrolled full-time, at an accredited college or university, matriculating to obtain an undergraduate degree, and under the age of twenty-three, appellant is under a duty to pay for her room, board, and book expenses. {¶ 14} While we sympathize with appellant that paying for room, board, and book expenses for a child who has failed to take her college education seriously seems unfair, it is the terms of the agreed judgment entry by which the parties must abide. The agreement sets forth no other special criteria, such as a certain grade point average or attendance at a particular institution, which could have easily been negotiated and incorporated into the agreement at its inception. {¶ 15} The record reveals that Kristi met all four criteria at issue for the following time periods: autumn quarter, 1998; winter quarter, 1999; spring quarter, 1999; winter quarter, 2000; spring quarter, 2000; autumn quarter, 2000; winter semester, 2001 and spring semester, 2001. Thus, Kristi met all four criteria for a total of eight separate grading periods. Therefore, appellant is in contempt for failure to provide for all room, board, and book expenses for Kristi during those grading periods in accordance with the agreed judgment entry. {¶ 16} Appellant's assignment of error is without merit. The decision of the trial court is affirmed. DONALD R. FORD, J., ROBERT A. NADER, J., concur. 1 Tapp v. Tapp (1995), 105 Ohio App. 3d 159, 162, citing Maphet v.Heiselman (1984), 13 Ohio App. 3d 278, 279; Miller v. Miller (1951),154 Ohio St. 530. 2 Nokes v. Nokes (1976), 47 Ohio St. 2d 1. 3 Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St. 2d 241, paragraph two of the syllabus.

2016-07-06 06:36:09.726627+00

OPINION {¶ 1} Kathy French appeals from her conviction for operating a motor vehicle while under the influence of alcohol pursuant to R.C.4511.19(A)(1)(a). In a single assignment of error, French contends the trial court erred in rejecting the magistrate's sentence and increasing it after execution of the sentence had already commenced. *Page 2 {¶ 2} On June 28, 2005, French appeared in open court and entered a guilty plea to the operating while under the influence charge before Magistrate Beth W. Root. Ms. French was represented by attorney Christ Theodor. The following occurred in open court: {¶ 3} "THE COURT: In that case, I vacate your plea of not guilty, accept your plea of guilty, find you guilty. The Failure to Stop After an Accident is dismissed with court costs. And the OVI, as a breath test over .17 is dismissed. That's actually without court costs. {¶ 4} "And, Mr. Theodore [sic], is there anything you'd like me to know about this? {¶ 5} "MR. THEODORE [sic]: Just that, as we had discussed, Kathy has, as everybody here knows, back in the `90's had some similar problems. Had a very long stretch without any problems, and I guess due to some circumstances recently — that's not an excuse. It's more by way of explanation. She has had some counseling. She understands that she needs some assistance along that line. So I think she's fully aware of that, and she would — I believe we talked about driving privileges for work. And she would just ask the Court to take that into consideration. {¶ 6} "THE COURT: Ms. French, is there anything else that you would like me to know? {¶ 7} "MS. FRENCH: No. I appreciate that. Thank you." {¶ 8} The magistrate then stated she was fining French Five Hundred Dollars ($500) plus court costs, sentencing her to ninety days in jail with eighty-four days suspended with a three-day WIP program counting as three days of the unsuspended *Page 3 sentence. The magistrate then stated she was placing French on three years probation and suspending her license for a year. {¶ 9} Ms. French paid her fines, court costs, and began serving her three-day sentence on July 5, 2005. On August 12, 2005, Judge Catherine Barber overruled the "recommendations" of Magistrate Root because the trial judge found that the magistrate sentenced Ms. French without being aware that Ms. French had a pending operating while under the influence charge and hit-skip charge in the Xenia Municipal Court information, which the court believed would certainly have impacted the magistrate's sentencing recommendation. The court then stated the matter would be set for re-sentencing at a future date. {¶ 10} On October 13, 2005, the trial court sentenced Ms. French to one hundred eighty days in jail, no good time, with ninety days suspended on condition defendant have no OVI conviction within six years, and she complete three years probation to monitor drug and alcohol treatment recommendations. Of the ninety days not suspended, Ms. French was given three days jail-time credit and the remainder of eighty-seven days was to be served on electronically monitored house arrest. The court suspended Ms. French's driver's license for three years and fined her five hundred dollars ($500) and court costs. {¶ 11} Appellant argues that the trial court erred in increasing her sentence after part of her sentence had been executed. She contends this action by the trial court violated Crim.R. 19(E)(3)(a) and the prohibition against multiple punishments found in the Double Jeopardy Clause of the Ohio and United States Constitutions. {¶ 12} The State argues that even if the trial court erred in not accepting the magistrate's recommendation, such error was "invited" by the Appellant or her counsel's *Page 4 failure to inform the magistrate of the pending prosecution of Ms. French in Xenia. {¶ 13} It is clear Ms. French should never have begun serving her recommended sentence until the trial court had adopted the magistrate's recommendations as required by former Crim.R. 19(E)(3)(a). At the time of French's sentencing, that rule provided, in part: {¶ 14} "The magistrate's decision shall become effective when adoptedby the court. The court may adopt the magistrate's decision and enter judgment if no written objections are filed or the parties have waived the filing of objections in writing or on the record in open court, unless the court determines that there is an error of law or other defect on the face of the magistrate's decision." (Emphasis added.) {¶ 15} Traf. R. 14(C) states that proceedings before the magistrate shall be conducted as provided in Criminal Rule 19. Crim.R. 19(E)(3)(a) further previously provided that no sentence recommended by a magistrate shall be enforced until the court has entered judgment. {¶ 16} Appellant contends she has already served three days in jail, has completed the Weekend Intervention Program (WIP), paid her fines and court costs, and has kept her probation appointments. We agree with the Appellant that the procedure followed in this case was irregular and unfortunate. When the magistrate spoke to Ms. French, she should have said I am "recommending" that the trial court sentence you as follows, and provided Ms. French an opportunity to file timely objections to those recommendations. We agree that Mr. Theodor should have informed the magistrate about the pending criminal matters in Xenia Municipal Court against his client when the magistrate made inquiry of him. We also agree that a trial court may not increase a sentence once the trial court (not the magistrate) has imposed the sentence, and it has been partially executed. The trial court *Page 5 gave Ms. French credit for the three days she served after she entered her guilty plea. If Ms. French has paid her five-hundred dollar ($500) fine, she cannot be required to pay it again. The sentence imposed by the trial court does not violate the Double Jeopardy provisions of the Ohio or United States Constitutions. She has not been punished twice for the same offense. The assignment of error is Overruled. The judgment of the trial court is Affirmed. GRADY, J., and GLASSER, J., concur. *Page 1

2016-07-06 06:36:08.848851+00

JUDGMENT ENTRY. This appeal is considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, and this judgment entry is not an opinion of the court under S.Ct.R.Rep.Op. 3(A). Plaintiff-appellant Debra Maupin appeals the grant of summary judgment in favor of defendants-appellees Rodney Griffin and Dufrann, Inc. Maupin claims that she agreed to purchase Griffin's dry-cleaning business as a result of fraudulent misrepresentations. The issue presented is whether Maupin produced evidence to establish a genuine issue of material fact to defeat a motion for summary judgment. We hold that she did in only one respect: whether Griffin and Dufrann defrauded Maupin concerning the sale of the name of the business. We accordingly reverse the entry of summary judgment in part. After profitably running Rainbow Cleaners for a year, Griffin, as president of Dufrann, Inc., agreed to sell the business to Maupin. The contract stated that Griffin and Dufrann agreed to sell "all of the assets of Rainbow Cleaners." The agreement included assurances of the accuracy of Griffin's representations and an integration clause stating that the terms of the written contract were controlling and limited to those contained in the document itself. Following the sale, Maupin discovered that the name "Rainbow Cleaners" was not included in the sale because Griffin had never owned the name. Consequently, she renamed the business "Ritz Cleaners." Maupin contended that Griffin had represented that the name was part of the sale. Maupin also claimed that Griffin had represented that the cleaning business was self-sufficient. But according to Maupin, the business could not feasibly be operated independently. Additionally, Maupin contended that the profit-and-loss statements presented to her omitted repair and maintenance costs, and understated payroll costs. According to Maupin, the business failed because machines did not perform according to her expectations and profitability was severely restricted due to unforeseen operating expenses never revealed by Griffin. She further contended that she had to establish a reputation from scratch since the name "Rainbow Cleaners" was not transferred as she had assumed it would be. Maupin sued Griffin and Dufrann, Inc., for the return of the purchase price because she had allegedly been defrauded. Griffin responded by presenting evidence and then moving for summary judgment. The trial court granted the motion. On appeal Maupin assigns one error: that the trial court erred in granting summary judgment without considering all of the extrinsic evidence supporting Maupin's fraud claims. We agree in part, that there was error, but not for any reason related to extrinsic evidence. Summary judgment is appropriate where the trial court determines from the facts set forth in the pleadings and discovery that the moving party has established (1) the absence of a genuine issue of material fact; (2) an entitlement to judgment as a matter of law; and (3) that reasonable minds can reach but one conclusion that is adverse to the nonmoving party.1 These determinations are made after viewing the facts in a light most favorable to the nonmoving party.2 A challenge to a grant of summary judgment is reviewed on appeal de novo.3 This case is simple: the contract stated that Griffin and Dufrann were selling all the assets of Rainbow Cleaners. Even though the name "Rainbow Cleaners" was not specifically listed as an asset, it certainly was reasonable for Maupin to assume that "all of the assets of Rainbow Cleaners" included the name itself. But Griffin and Dufrann did not have the legal right to sell the name. It would have been a far better practice to include some discussion of the name of the business in the contract. But lack of business savvy should not necessarily exclude Maupin from the chance to pursue her case. The clause that stated that Maupin was buying "all of the assets of Rainbow Cleaners," standing alone, was sufficient to defeat the summary-judgment motion. In their briefs, both sides have discussed the parol evidence rule at length. That rule poses three general questions: (1) are there consistent prior or contemporaneous written or oral agreements; (2) do these extrinsic agreements contradict the writing; and (3) is the integration partial or complete?4 The rule does not help Maupin with most of her fraud claims because she failed to point to any specific evidence that supported her claims. The only specific statements that she cited proved nothing. The first was a statement by a worker concerning how many shirts she had done in an hour — but it was not attributed to Griffin or Dufrann. And the second related to whether Maupin would eventually have been able to run the business from home. Maupin also pointed out what she referred to as inconsistencies in Griffin's deposition. But none of these inconsistencies, and none of the specific statements that Maupin remembered, created a genuine issue of material fact. With regard to the name, however, one need only look at the face of the contract to see support for a claim of fraud: Griffin and Dufrann stated that they were selling "all of the assets," which would normally have included the name of the business, when they did not have the right to do so. The parol evidence rule does not even come into play in this issue. While it is clear that Maupin did not do much due diligence before buying the business, she presented a genuine issue of material fact concerning whether Griffin and Dufrann committed fraud by purportedly selling Maupin the name "Rainbow Cleaners." We therefore overrule Maupin's sole assignment of error as it relates to most of her claims. We sustain it only as it relates to alleged fraud in the sale of the name "Rainbow Cleaners." We reverse the entry of summary judgment in that respect and remand the case for further proceedings. Further, a certified copy of this Judgment Entry shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. Doan, P.J., Hildebrandt and Painter, JJ. 1 See Civ.R. 56(C); Dresher v. Burt, 75 Ohio St.3d 280, 293,1996-Ohio-107, 662 N.E.2d 264. 2 See Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346,1993-Ohio-191, 617 N.E.2d 1129. 3 See Hamilton Cty. Bd. of Commrs. v. Cincinnati,154 Ohio App.3d 504, 2003-Ohio-5089, 797 N.E.2d 1027, at ¶ 10. 4 See Sheet Metal Workers Natl. Pension Fund v. Bryden House Ltd.Partnership (1998), 130 Ohio App.3d 132, 138, 719 N.E.2d 646.

2016-07-06 06:36:09.235768+00

OPINION {¶ 1} Defendant-appellant Jason Ellis appeals from his conviction and sentence in the Fairfield County Court of Common Pleas. Plaintiff-appellee is the State of Ohio. {¶ 2} On October 8, 2004, appellant was indicted for one count of burglary a felony of second degree, two counts of theft, felonies of the fifth degree, three counts of breaking and entering, felonies of the fifth degree, and one count of possession of criminal tools, a felony of the fifth degree. {¶ 3} On December 9, 2004 appellant entered a guilty plea to counts one, two, three, four, five, and six of the indictment. Count seven of the indictment was dismissed upon motion of the State. The trial court deferred sentencing. {¶ 4} On January 20, 2005, a sentencing hearing was conducted by the trial court. The trial court sentenced appellant to a prison term of four years as to Count one, burglary, nine months on Count two, theft, nine months to Count three, theft, nine months on Count four, breaking and entering, nine months on Count five, breaking and entering, and nine months as to Count six, breaking and entering. The trial court ordered the sentences to be served consecutively to each other for an aggregate sentence of seven years and nine months, less credit for time served. The trial court granted appellant community control sanctions as to Counts five and six. Appellant was further ordered to pay a fine of $2,000 and the cost of the prosecution. Appellant timely filed his appeal and has raised the following three assignments of error for our consideration: {¶ 5} "I. THE TRIAL COURT ERRED IN IMPOSING A PRISON SENTENCE UPON THE APPELLANT. {¶ 6} "II. THE TRIAL COURT ERRED WHEN IT FAILED TO IMPOSE THE MINIMUM PRISON SENTENCE UPON THE APPELLANT. "III. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES UPON THE APPELLANT." I. II. {¶ 7} In his First Assignment of Error appellant argues that the trial court erred in imposing a sentence of imprisonment. In his Second Assignment of Error appellant contends that the trial court erred in not imposing the minimum sentence. We disagree. {¶ 8} After the enactment of Senate Bill 2 in 1996, an appellate court's review of an appeal from a felony sentence was modified. Pursuant to present R.C. 2953.08(G) (2): "The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court. The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for re-sentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. {¶ 9} The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: {¶ 10} "(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (E) (4) of section 2929.14, or division (H) of section 2929.20 of the Revised Code, whichever, if any, is relevant; "(b) That the sentence is otherwise contrary to law." {¶ 11} Clear and convincing evidence is that evidence "which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford (1954),161 Ohio St. 469, paragraph three of the syllabus. {¶ 12} When reviewing a sentence imposed by the trial court, the applicable record to be examined by the appellate court includes the following: (1) the pre-sentence investigation report; (2) the trial court record in the case in which the sentence was imposed; and (3) any oral or written statements made to or by the court at the sentencing hearing at which the sentence was imposed. R.C. 2953.08(F) (1) through (3). The sentence imposed, by the trial court, should be consistent with the overriding purposes of felony sentencing: "to protect the public from future crime by the offender" and "to punish the offender." {¶ 13} In the case at bar, appellant was convicted, among other charges, of one count of Burglary, in violation of R.C. 2911.12(A) (1), a second degree felony. For a violation of a felony of the second degree the court must impose a definite prison term of two, three, four, five, six, seven, or eight years. R.C. 2929.14(A) (2). Appellant, having previously served a prison sentence, was sentenced to a less than maximum term of four years, which is within the statutory sentencing range for his offense. It would appear, therefore, that what the appellant is really arguing is that the trial court erred by not overcoming the presumption of imprisonment contained in R.C. 2929.13(D). {¶ 14} R.C. 2929.13(D) provides: {¶ 15} "(D) Except as provided in division (E) or (F) of this section, for a felony of the first or second degree and for a felony drug offense that is a violation of any provision of Chapter 2925., 3719., or 4729, of the Revised Code for which a presumption in favor of a prison term is specified as being applicable, it is presumed that a prison term is necessary in order to comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code. Notwithstanding the presumption established under this division, the sentencing court may impose a community control sanction or a combination of community control sanctions instead of a prison term on an offender for a felony of the first or second degree or for a felony drug offense that is a violation of any provision of Chapter 2925. 3719., or 4729. of the Revised Code for which a presumption in favor of a prison term is specified as being applicable if it makes both of the following findings: {¶ 16} "(1) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future crime, because the applicable factors under section2929.12 of the Revised Code indicating a lesser likelihood of recidivism outweigh the applicable factors under that section indicating a greater likelihood of recidivism. {¶ 17} "(2) A community control sanction or a combination of community control sanctions would not demean the seriousness of the offense, because one or more factors under section 2929.12 of the Revised Code that indicate that the offender's conduct was less serious than conduct normally constituting the offense are applicable, and they outweigh the applicable factors under that section that indicate that the offender's conduct was more serious than conduct normally constituting the offense." {¶ 18} Thus, in order to impose a community control sanction in the instant case the trial court would have been required to find that such a sanction would adequately punish appellant, that appellant was less likely to re-offend, and that such a sanction would not demean the seriousness of the offense, because appellant's conduct was less serious than conduct normally constituting the offense. {¶ 19} R.C. 2953.08(B) provides: {¶ 20} "(B) In addition to any other right to appeal and except as provided in division (D) of this section, a prosecuting attorney, a city director of law, village solicitor, or similar chief legal officer of a municipal corporation, or the attorney general, if one of those persons prosecuted the case, may appeal as a matter of right a sentence imposed upon a defendant who is convicted of or pleads guilty to a felony or, in the circumstances described in division (B)(3) of this section the modification of a sentence imposed upon such a defendant, on any of the following grounds: {¶ 21} "(1) The sentence did not include a prison term despite a presumption favoring a prison term for the offense for which it was imposed, as set forth in section 2929.13 or Chapter 2925. of the Revised Code." {¶ 22} The Legislature has expressly provided that the prosecution can appeal a trial court's decision overcoming the presumption of imprisonment contained in R.C. 2929.13. No such provision has been made for a defendant to appeal a sentence on the basis that the trial court refused to supersede the presumption for a prison term on a second degree felony. As this Court has previously held: {¶ 23} "Appellant seeks to appeal his sentence as of right based upon the trial court's refusal to supersede the presumption for a prison term on a second degree felony. R.C. Section 2953.08 sets forth the circumstances under which a defendant may appeal a felony sentence as of right. The statute does not provide an appeal as of right in this circumstance, nor does the `contrary to law' provision require each and every sentence be subjected to review under the guidelines. State v.Untied, March 5, 1998, Muskingum App. No. CT97-18; State v. Taylor, August 8, 2003, Tuscarawas App. No. 2002CA78. Here, appellant was convicted of a second degree felony and was not given the maximum sentence; therefore, his appeal is not permitted by R.C. 2953.08. Id."State v. Barton, 5th Dist. No. 2003CA00064, 2004-Ohio-3058 at ¶ 74. See, also, State v. Miller, 5th Dist. No. 04-COA-003, 2004-Ohio-4636 at ¶ 37-38. {¶ 24} Appellant's contention, therefore, is that the trial court abused the discretion conferred on it, which is not a matter for which R.C. 2953.08(G) permits appellate review. See State v. Cochran, 2nd Dist. No. 20049, 2004-Ohio-4121; State v. Alvarez (2003),154 Ohio App.3d 526, 2003-Ohio-5094, 797 N.E.2d 1043, State v. Kennedy (Sept. 12, 2003), Montgomery App. No. 19635, 2003-Ohio-4844, State v.Miller, supra. {¶ 25} With respect to appellant's sentences for the felonies of the fifth degree, pursuant to R.C. 2953.08 (A)(2) a person who receives a prison sentence for a felony of the fourth or fifth degree may only appeal as of right the imposition of the prison sentence if the "trial court did not specify at sentencing that it found one or more factors specified in division (B)(1)(a) to (i) of Section 2929.13 of the Revised Code to apply relative to the defendant. If the court specifies that it found one or more of the factors to apply relative to the defendant, the defendant is not entitled under this division to appeal as a matter of right the sentence imposed upon the offender." Section 2929.13 (B) (1) (g) indicates the court shall consider whether the offender previously served a prison term. The trial court in this case noted that the appellant has previously served a prison sentence. (ST. at 20-21; 33). Accordingly, it would appear that appellant is not permitted to appeal the imposition of the prison sentence rather than a community control sanction in this case. State v. Rostorfer, 5th Dist. No. 03-COA-018, 2004-Ohio-975 at ¶ 37; State v. Brown, Hamilton App. No. C-010683, 2002-Ohio-2762 at paragraph 1-2; State v. McNeil (May 22, 1998), Ham. App. No. C-960980. {¶ 26} Assuming arguendo that we were to review appellant's assignment of error on the merits, his arguments would nonetheless fail. {¶ 27} As appellant had previously served a prison term, the R.C.2929.14 (B) presumption of the appropriateness of the shortest authorized prison term does not apply to this case. In addition to noting that the appellant had previously served the prison sentence, the trial court noted that the appellant had committed the crimes in the case at bar while he was subject to post-release controls. (ST. at 33; 34-35; 38). The court further noted the likelihood of recidivism based upon defendant's prior felony and misdemeanor history, and that the appellant has failed to respond favorably in the past to the sanctions imposed by the courts. (Id. at 33; 34-35). {¶ 28} Therefore, we find the trial court sufficiently made R.C. 2929.13 and 2929.14 findings at the sentencing hearing such as to overcome any argument for non-imposition of a prison sentence, or the imposition of a minimum prison sentence in this case. Accordingly, appellant's First and Second assignments of error are overruled. III. {¶ 29} In his Third Assignment of Error, appellant alleges that the trial court erred when it sentenced appellant to serve the sentences in the case at bar consecutively. Appellant concedes that the trial court made the requisite findings pursuant to R.C. 2929.14(E). (Appellant's Brief at 9). Appellant argues that the trial court did not state its reasons for imposing consecutive sentences pursuant to R.C. 2929.19(B) (2) (c). (Id.). We disagree. {¶ 30} The statutory scheme assumes that sentences imposed in separate cases will be concurrent unless the court determines consecutive sentences should be imposed under R.C. 2929.14 (E). State v. Givens, Franklin App. No. 80319, 2002-Ohio-4904. {¶ 31} In order to impose consecutive sentences, a trial court must comply with R.C. 2929.14(E) (4) and R.C. 2929.19(B) (2) (c). R.C.2929.14(E)(4) states as follows: "If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive sentence is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following: {¶ 32} "(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to Section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. {¶ 33} "(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct. {¶ 34} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender." {¶ 35} R.C. 2929.14(E)(4) requires the court to make three findings in order to sentence an offender to consecutive sentences: (1) consecutive sentences are "necessary to protect the public from future crime or to punish the offender, * * * [(2)] consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, * * * [and (3)] [t]he offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender." {¶ 36} "Consecutive sentences are reserved for the worst offenses and offenders." State v. Comer (2003), 99 Ohio St. 3d 463 at ¶ 21 (citation omitted). Thus, in imposing consecutive sentences, the trial court must support its decision with specific findings as to all three requirements of R.C. 2929.14(E) (4). Id. {¶ 37} In the case at bar, the trial court specifically found that each requirement of R.C. 2929.14(E) (4) was present. Further, the trial court explained its reasons for imposing consecutive sentences. In support of its findings, the trial court stated at the sentencing hearing that its decision was based on appellant's criminal past, including a nineteen month prison sentence and appellant's lack of rehabilitation. (ST. at 33; 34-35). The trial court noted that the appellant had committed the crimes in the case at bar while he was subject to post-release controls. (ST. at 33; 34-35; 38). The trial court noted with respect to the burglary charge that appellant's conduct "caused psychological harm and concerns by all the people who attend the church in one form or another as to the safety and security of their facility". (ST. at 34). The court further noted "[a]nd I asked you what the longest period of time that you'd spent in prison. You indicated 19 months. And for me, that is an important factor here in determining what's the appropriate sanction here, because it seems to me that if 19 months in prison did not serve to make an impression upon you, then the Court is called upon to impose a longer period of incarceration such that hopefully, if given enough period of time of incarceration, you will get your priorities straight." (Id. at 33). The trial court specifically found "that these sentences are not disproportionate to the seriousness of your conduct." (Id. at 38). {¶ 38} These factors clearly support the trial court's conclusion that consecutive prison terms are necessary to protect the public and punish the offender. They further support the trial court's conclusion that consecutive sentences, in this case, are not disproportionate to the criminal conduct involved here and appellant's' subsequent danger to the public. Moreover, these findings substantiate the trial court's determination that appellant's criminal history necessitates consecutive sentences to protect the public from future crimes. {¶ 39} Thus, we find that the trial court provided sufficient findings as to all three elements required to impose consecutive sentences. {¶ 40} Appellant's Third assignment of error is overruled. {¶ 41} For the foregoing reasons, the judgment of the Fairfield County Court of Common Pleas, Ohio, is affirmed. Gwin, J., Boggins, P.J., and Wise, J., concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the foregoing reasons, the judgment of the Fairfield County Court of Common Pleas, Ohio, is affirmed. Costs to appellant.

2016-07-06 06:36:09.326203+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Plaintiff/Appellants, Shawn Thomas, his wife Jody Thomas, and their minor child, A.T. (collectively "Thomas") appeal the decision of the Wayne County Court of Common Pleas, which granted summary judgment in favor of Defendant/Appellee, City of Wooster ("City"). We affirm. {¶ 2} This case arose after Shawn Thomas had an unfortunate accident on a bridge on State Route 83 in the City in March 2004. In his complaint, Thomas asserts that "due to the icy condition of the bridge, [he] lost control of his truck, struck the concrete median barrier and rolled over two and a half times" causing severe injuries. Thomas's complaint asserts claims for nuisance and loss of *Page 2 consortium by Jody Thomas and A.T.. On September 28, 2006, the City moved for summary judgment on the grounds of the statute of limitations and sovereign immunity. On June 11, 2007, Thomas filed his brief in opposition. On June 26, 2007, the trial court granted summary judgment in favor of the City, finding there to be no genuine issue of material fact that the City was immune from Thomas's claims and that the City had not acted negligently ("Judgment Entry"). {¶ 3} Thomas timely appealed the Judgment Entry and raises one assignment of error. Assignment of Error "The trial court erred by granting summary judgment in favor of [the City]." {¶ 4} Thomas asserts that the trial court erred in granting summary judgment in favor of the City because there are genuine issues of material fact as to: (1) whether the City negligently failed to remove an obstruction from a public road, thereby triggering an exception to its immunity protection under R.C. 2744.02(B)(3); and (2) whether the City's methods of detecting and treating conditions on its roads required discretion, policy-making, or judgment so as to reestablish immunity under R.C. 2744.03(A)(5). Specifically, Thomas argues that naturally accumulated ice is an obstruction in the road and that the City acted negligently by failing to use the latest technology and techniques to detect and treat ice on its roads prior to formation of the obstruction. Thomas further maintains that a decision to apply salt is not a discretionary decision and even if it *Page 3 was that the City's discretion was exercised in a wanton or reckless manner because the City "failed to avail [itself] of weather prediction resources and modern treatment practices that would have allowed the City to respond to ice issues before an accident occurred." (Emphasis sic). {¶ 5} As we stated in Craddock v. Flood Co., 9th Dist. No. 23882,2008-Ohio-112: "In reviewing a trial court's ruling on a motion for summary judgment, this court applies the same standard a trial court is required to apply in the first instance: whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Parenti v. Goodyear Tire Rubber Co. (1990), 66 Ohio App.3d 826, 829. In applying this standard, evidence is construed in favor of the nonmoving party, and summary judgment is appropriate if reasonable minds could only conclude that judgment should be entered in favor of the movant. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 686-87. Before the trial court may consider whether the moving party is entitled to judgment as a matter of law, however, it must determine whether there are genuine issues of material fact for trial. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, at ¶ 12." Craddock at ¶ 4. {¶ 6} The moving party "`bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims.'" Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, quotingDresher v. Burt (1996), 75 Ohio St.3d 280, 293. "The nonmoving party then has a reciprocal burden to set forth specific facts, by affidavit or as otherwise provided by Civ.R. 56(E), which demonstrate that there is a genuine issue for trial." Craddock at ¶ 5, citing Byrd at ¶ 10. *Page 4 {¶ 7} We set forth the general rule with regard to the sovereign immunity of a political subdivision in Johnson v. Calhoun, 9th Dist. No. 23725, 2008-Ohio-549: "In determining whether a political subdivision is immune from liability, this Court must engage in a three-tier analysis. Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28. The first tier is the premise under R.C. 2744.02(A)(1) that: "`[e]xcept as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.' * * * "The second tier involves the five exceptions set forth in R.C. 2744.02(B), any of which may abrogate the general immunity delineated in R.C. 2744.02(A)(1). Cater, 83 Ohio St.3d at 28. Lastly, under the third tier, `immunity can be reinstated if the political subdivision can successfully argue that one of the defenses contained in R.C. 2744.03 applies. Id.'" Johnson at ¶ 6. {¶ 8} Here, it is undisputed that the City is immune under the first tier of analysis. Neither the City nor Thomas argue otherwise and the trial court so found. {¶ 9} As to the second tier of Cater, Thomas argues that the applicable exception to the City's immunity is set forth in R.C.2744.02(B)(3), which states: "(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows: *Page 5 "(3) Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads, except that it is a full defense to that liability, when a bridge within a municipal corporation is involved, that the municipal corporation does not have the responsibility for maintaining or inspecting the bridge." (Emphasis added). {¶ 10} The trial court considered R.C. 2744.02(B)(3) and found: "[The] City * * * was involved in a governmental function of removing snow from roads and bridges. The Court further finds that there is no evidence of negligence in the process in which they removed snow on March 8, 2004. "Because the Court finds there was no negligence on the part of the [City], and further finds that Defendants are under the umbrella of immunity granted by the Ohio Revised Code § 2744.02, [the City is] entitled to judgment as a matter of law. There are no genuine issues of fact left to be decided and the Motion for Summary Judgment is Granted." We agree with the trial court and hold that there is no genuine issue of material fact to establish that the City was negligent thereby causing it to lose its immunity protection under the second tier of theCater analysis. We also hold that there is no genuine issue of material fact that, even if negligent, the City reinstated its immunity protection under the third tier of the Cater analysis. Specifically, we hold: (1) that the City did not negligently "fail to remove obstructions from public roads," in violation of R.C. 2744.02(B)(3); (2) that the City properly used its discretion in determining how to diagnose and treat its roads so as to reinstate any lost immunity; and (3) that the City did not exercise its discretion in a wanton *Page 6 or reckless manner so as to negate its reinstated immunity. See R.C.2744.03(A)(5). {¶ 11} We initially note that the Thomas's complaint asserts two claims-nuisance pursuant to R.C. 723.01 and loss of consortium, yet Thomas's argument on appeal is that nuisance analysis should not apply because the legislature changed the wording of R.C. 723.01 to remove use of the word "nuisance" and adopted the definitions set forth in R.C.2744.02, which includes the "obstructions" language of R.C.2744.02(B)(3) set forth above. Thomas then urges us to determine that the ice was an obstruction, that the City had a duty to remove it in a particular way, and that the City breached that duty causing harm to Thomas. Alternatively, Thomas urges us to determine that the City's road condition diagnosis and treatment methods were not discretionary and/or were performed in this case in a wanton and reckless manner. {¶ 12} We hold that naturally accumulating ice is not an obstruction under R.C. 2944.02(B)(3). Thomas has failed to convince this Court that the legislature intended to change the law regarding the natural accumulation of ice when it removed the word "nuisance" from R.C. 723.01 and adopted the definitions set forth in R.C. 2744.02. {¶ 13} As we have held that naturally accumulated ice is not an obstruction within the meaning of R.C. 2744.02(B)(3), there is no evidence that the City breached a statutory duty to remove any ice from the bridge on March 8, 2004. *Page 7 Therefore, to demonstrate that the City is liable for negligence, Thomas must establish the existence of another duty owed him by the City to remove naturally accumulated ice. See Wade v. Lorain MetropolitanHousing Auth, Inc. (Sept. 11, 1991), 9th Dist. No. 90CA004954, citingPorter v. Miller (1983), 13 Ohio App.3d 93 (noting that absent a specific contractual duty, the City has no duty to clear naturally accumulated ice and snow); LaCourse v. Fleitz (1986), 28 Ohio St.3d 209;Jones v. Cincinnati Metropolitan Housing Authority (Apr. 27, 1988), 1st Dist. No. C-870454. Here, there is no evidence of a contractual duty to clear ice and no evidence that the alleged ice on the bridge was anything other than naturally accumulated. {¶ 14} Moreover, even if the natural accumulation of ice could be found to create a duty upon the City to remove it, there is no evidence that the City was required to diagnose and treat road conditions in any specific manner and/or that the method by which the City chose to fulfill its governmental function of maintaining the roadways was a deviation from any standard of care and therefore, a breach of a duty. The deposition of the ODOT official merely provides guidelines by which ODOT diagnoses and treats its road conditions. It does not create a standard of care for Ohio municipalities. That the City could have adopted other methods, that may or may not have been more effective, does not establish a genuine issue of material fact that the City breached any standard of care or duty. Indeed, it is precisely to address this issue that the legislature *Page 8 adopted R.C. 2744.03(A)(5), the third tier of the Cater sovereign immunity analysis. Since there was no standard of care for road condition diagnosis and treatment in March 2004, any decision related thereto can only be left to the discretion of the City. {¶ 15} Thomas also failed to establish that the City used its discretion in a wanton or reckless manner because "[t]he standard for showing wanton misconduct is * * * high." Fabrey v. McDonald VillagePolice Dept. (1994), 70 Ohio St.3d 351, 356. "[W]anton misconduct [is] the failure to exercise any care whatsoever." Id., citing Hawkins v.Ivy (1977), 50 Ohio St.2d 114, syllabus. "`[M]ere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.'"Fabrey at 356, quoting Roszman v. Sammett (1971), 26 Ohio St.2d 94,96-97. "Such perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury." Fabrey at 356, citing Roszman, 26 Ohio St.2d at 97. There was no evidence before the trial court to establish that the City (through Frank Gilbert, City maintenance manager) acted in such a manner knowing that its conduct would probably result in injury. {¶ 16} Thomas's brief in opposition to the City's motion for summary judgment points to Gilbert's deposition testimony that he was aware of other ways to treat winter road conditions in the industry, including pretreatment with a brine solution. Thomas's brief in opposition also points to Gilbert's description of the *Page 9 City's then-existing road treatment plan and argues that it is less than state-of-the-art and "woefully inadequate considering current technology." Neither of these arguments demonstrates that the City, through Gilbert, utilized its then-existing road treatment plan knowing that it would result in injury, thereby negating its immunity under the third tier of Cater. {¶ 17} Based on the foregoing, Thomas's assignment of error is overruled and the judgment of the trial court is affirmed. Judgment Affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. *Page 10 Costs taxed to Appellants. CARR, P. J. CONCURS MOORE, J. CONCURS IN JUDGMENT ONLY *Page 1

2016-07-06 06:36:09.424068+00

JOURNAL ENTRY AND OPINION Plaintiff-appellant James W. Powers ("appellant") appeals from the order of the trial court granting summary judgment in favor of defendants-appellees Pinkerton, Inc. and Bartley Kubisen (collectively appellees). For the following reasons, we affirm the judgment of the trial court. Pinkerton, Inc., a security and investigation services corporation, hired appellant to work in its Cleveland/Akron Banking Division. On April 14, 1991, appellant signed an Employment Acknowledgment form which set forth the terms and conditions of employment with Pinkerton. In particular, the Employment Acknowledgment provided: * * * 1. MY EMPLOYMENT BY CCP/PINKERTON IS STRICTLY AN EMPLOYMENT AT WILL TERMINABLE BY EITHER CCP/PINKERTON OR MYSELF AT ANY TIME, IN EITHER PARTY'S SOLE DISCRETION, WITHOUT ADVANCE NOTICE. NO CCP/PINKERTON REPRESENTATIVE HAS AUTHORITY TO MODIFY THIS POLICY. I UNDERSTAND THAT AT NO TIME MAY I RELY ON ANY POLICIES, PROCEDURES, CUSTOMS, AND/OR STATEMENTS, WHETHER WRITTEN OR ORAL, TO CONSTITUTE A MODIFICATION OF THIS EXPRESS CONDITION OF MY EMPLOYMENT. * * * 15. I understand and agree to cooperate with the company and its clients in any investigation involving my employment or job performance. Being aware of this need in the security industry, I agree to voluntarily participate in any investigation, interrogation, interview, or any other test or procedure if requested by management. I understand that my failure or refusal to cooperate in any investigation is grounds for termination of my employment. * * * Pinkerton immediately promoted appellant to the position of Banking Lieutenant. Thereafter, Pinkerton promoted appellant to the position of Banking Captain. Pinkerton also promoted Bartley Kubisen, appellant's immediate supervisor, to the position of Accounts Manager. On March 29, 1993, Pinkerton placed appellant on an extended special assignment. During this assignment, Banking Lieutenant Scott Vargo assumed appellant's duties within Pinkerton's Banking Division. On April 15, 1993, appellant received a telephone call from Jennifer Perelka, an unarmed employee of Pinkerton. During this telephone conversation, Perelka indicated to appellant that she may have been sexually harassed by her armed superior, Sergeant Gary Auerbach. Appellant advised Perelka to tape record Auerbach's behavior the next day. On April 16, 1993, Perelka paged appellant. When appellant called Perelka, she informed him that she was having serious troubles with Auerbach. Appellant advised Perelka to "hang in there." Appellant then called the Pinkerton office and left messages for Kubisen and District Manager Fred Prassack. Approximately thirty minutes later, Perelka paged appellant a second time. After listening to her concerns, appellant again called the office and left urgent messages for Kubisen and Prassack. Shortly thereafter, appellant ran into Perelka and Auerbach at the Society National Bank vault in downtown Cleveland. Perelka informed appellant that she wanted to get away from Auerbach. Appellant advised appellant to "hang in there" because she was almost done with her shift. At approximately 1:00 p.m. on April 16, 1993, Prassack contacted appellant and told appellant to have Perelka and Auerbach immediately return to the office. By this time, Perelka and Auerbach were already en route to the office. At the office, Perelka presented Prassack and Kubisen with a handwritten statement and the tape recording. After interviewing Perelka and Auerbach, Prassack and Kubisen immediately terminated Auerbach for violating Pinkerton's sexual harassment policy. On April 19, 1993, Pinkerton demoted appellant and reduced his hourly pay from $10.00 to $9.50. Kubisen addressed the basis for appellant's demotion in an office memorandum dated April 19, 1993. In this memorandum, Kubisen stated: On the evening of Thursday 4/15/93, you were made aware by Officer Perelka that she was alleging that she was being sexually harassed by her supervisor (Sgt. Gary Auerbach). You failed to bring this matter to the immediate attention of the chain of command, Lt. Scott Vargo and PBS Manager Bart Kubisen. You superceded the chain of command by contacting Mr. Kubisen's supervisor the next day. If you had contacted Mr. Kubisen in a timely manner this matter could have been resolved with minimal effects to the operations of this office. You gave false information to your superior, Bart Kubisen by stating that you were not aware of Officer Perelka's complaint until the morning of Friday, 4/16/93. Evidence shows that you were aware of the complaint on 4/15/93. Your failure to bring this matter to the immediate attention of your immediate supervisor resulted in: 1. The discharge of a competent armed employee. If you have [sic] brought this to the attention of Mr. Kubisen, the employees involved in this matter would have been separated and counseled. Instead you allowed this situation to continue and advised officer Perelka to conceal on her persons [sic] a tape recorder, thereby escalating this situation to the point that a[n] employee was terminated. By so doing you have opened Pinkerton's [sic] up to possible litigation should she wish to pursue this matter. 2. Your insubordination by lying to Mr. Kubisen concerning your knowledge of this situation. 3. Causing excessive overtime and undue operational hardship to this office. Due to the above mentioned reasons, you are hereby demoted to the position of Responder. You will be assigned to a Settlement team as of this time. You[r] [p]ay rate will be decreased to $9.50 per hour. On or about May 28, 1993, Pinkerton commenced an investigation and background check of appellant, along with five of his coworkers, when several ATM machines the subject employees were servicing "showed a shortage." As part of this investigation, appellant submitted to a polygraph examination on July 22, 1993. On February 3, 1994, appellant filed a complaint against appellees in federal court. In his federal case, appellant set forth eleven causes of action, including discrimination in violation of Title42 U.S.C. § 2000e-2, retaliation in violation of42 U.S.C. § 2000e-3, damages for intentional discrimination under42 U.S.C. § 1981a, age discrimination in violation of29 U.S.C. § 621 et seq., and violations of various state law doctrines. In a judgment entry filed on August 11, 1997, the federal court granted summary judgment in favor of Pinkerton and Kubisen on appellant's federal claims. The court dismissed appellant's state law claims without prejudice. On November 5, 1997, appellant filed a nine-count complaint against appellees in the Cuyahoga County Court of Common Pleas. In his complaint, appellant averred the following causes of action: (1) a statutory retaliation and discrimination claim pursuant to R.C. Chapter 4112; (2) fraudulent misrepresentation; (3) promissory estoppel; (4) defamation; (5) invasion of privacy; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; (8) a statutory whistle blower retaliation claim pursuant to R.C. 4113.52; and (9) a common law tort claim for retaliation in violation of the public policy underlying R.C. 4113.52. On December 3, 1997, appellees filed a motion to dismiss. In a journal entry dated January 23, 1998, the trial court converted appellees' motion to dismiss to a motion for summary judgment. On March 29, 1999, the trial court issued a thirty-seven page ruling on appellees' motion for summary judgment wherein the trial court granted summary judgment in favor of Pinkerton and Kubisen on the nine causes of action in appellant's complaint. Therefrom, appellant filed a timely notice of appeal with this court.1 I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE APPELLEES UPON APPELLANT'S CLAIM FOR INTENTIONAL RETALIATION AND DISCRIMINATION UNDER R.C. § 4112.02, ET SEQ., ON THE STATED BASIS THAT APPELLANT FAILED TO REBUT THE APPELLEES' ALLEGED SHOWING OF A LEGITIMATE, NON-DISCRIMINATORY BUSINESS PURPOSE FOR THEIR ADVERSE EMPLOYMENT ACTIONS. In his first assignment of error, appellant claims that the trial court erred in granting summary judgment in favor of appellees on appellant's R.C. 4112.02(I) retaliation claim Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: "`(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.'" Hannah v.Dayton Power Light Co. (1998), 82 Ohio St.3d 482, 485, quoting Templev. Wean United, Inc. (1977), 50 Ohio St.2d 317. Pursuant to Civ.R. 56(E), if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden "to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." Dresher v. Burt (1996),75 Ohio St.3d 280, 293. The nonmovant may not rest upon mere allegations or denials but, rather, must set forth specific facts and present some evidence with respect to those elements which the nonmovant must establish at trial. Civ.R. 56(E); Celotex Corp. v. Catrett (1986),477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. R.C. 4112.02(I) provides: It shall be an unlawful discriminatory practice: (I) For any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code. In order to establish a prima facie case of retaliation under R.C.4112.02(I), appellant was required to prove the following elements: (1) appellant engaged in protected activity; (2) Pinkerton knew of appellant's participation in the protected activity; (3) Pinkerton engaged in retaliatory conduct; and (4) a causal link exists between the protected activity and the adverse action. Chandler v. Empire Chem., Inc., MidwestRubber Custom Mixing Div. (1994), 99 Ohio App.3d 396, 402. Where a claimant establishes a prima facie case of retaliatory discharge, the burden shifts to the defendant to articulate a legitimate reason for its action. Chandler, supra. If the defendant carries that burden, the burden is shifted back to the claimant to show that the articulated reason is merely a pretext. Id. "A reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Center v. Hicks (1993), 509 U.S. 502,510-511. "[M]ere conjecture that [the] employer's explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment." Branson v. Price River Coal Co. (C.A.10, 1988), 853 F.2d 768, 772. To avoid summary judgment, appellant was required to produce some evidence that Pinkerton's proffered reasons were factually untrue. Reeves v. Sanderson Plumbing Products, Inc. (2000), 530 U.S. 133,120 S.Ct. 2097, 147 L.Ed.2d 105. Simply put, appellant failed to satisfy his burden in this regard. "Ohio courts will grant summary judgment to the employer even if the employee establishes a prima facie case, if the employee presents no evidence to rebut the employer's legitimate nondiscriminatory reason."Borowski v. State Chemical Mfg. Co. (1994), 97 Ohio App.3d 635, 641. Assuming arguendo that appellant established a prima facie case of retaliation, Pinkerton has articulated at least three legitimate business reasons for demoting appellant. First, Pinkerton submits that it demoted appellant because he failed to immediately notify Pinkerton of Perelka's sexual harassment claims and, instead, conducted his own investigation. Pinkerton insists that appellant's actions violated the procedures of the company's sexual harassment policy. Pinkerton's Policy Against Harassment states in pertinent part: All supervisors and/or management will immediately report any incidents of sexual harassment to the District Manager or Regional Vice President. * * * (Emphasis added.) Appellant imports the fact that Pinkerton placed him on an extended special assignment on March 29, 1993. Appellant emphasizes that he was not Perelka's supervisor on April 15, 1993, and, therefore, he did not violate the expressed terms of Pinkerton's policy against harassment. We agree with appellant that he did not violate the expressed terms of Pinkerton's sexual harassment policy by failing to immediately report Perelka's claims. However, Pinkerton offered two other nondiscriminatory reasons for demoting appellant. As a legitimate business reason for appellant's demotion, Pinkerton has also asserted that appellant placed Perelka in unnecessary danger by advising her to go into the field and tape record her harasser, an armed supervisor. Appellant fails to dispute the substance of this contention and, instead, merely notes that Kubisen did not initially include this justification in the office memorandum, dated April 19, 1993, which addressed appellant's demotion. In addition, Pinkerton submits that appellant provided false information to his superiors when he represented that he was unaware of Perelka's allegations until April 16, 1993. Appellant attempts to counter this rationale by arguing that he did not know the specifics of Perelka's claims until the next day. Notwithstanding, the record clearly shows that Perelka informed appellant of her basic allegations on April 15, 1993. Providing a superior with misinformation is a form of insubordination. It is well-established that insubordination is a legitimate and nondiscriminatory reason for adverse employment action. See Hood v.Diamond Products, Inc. (1996), 74 Ohio St.3d 298, 302. Faced with summary judgment, appellant failed to offer sufficient evidence that all three of Pinkerton's justifications for his demotion were pretext and, moreover, failed to even raise an inference that retaliation actually motivated this decision. After thorough review of the record on appeal, we find that the trial court did not err in granting appellees' motion for summary judgment on appellant's R.C.4112.02(I) retaliation claim. Appellant's first assignment of error is overruled. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN HOLDING THAT APPELLANT'S COUNT IX CLAIM FOR THE COMMON LAW TORT OF WRONGFUL RETALIATORY ACTION IN VIOLATION OF THE PUBLIC POLICY UNDERLYING R.C. § 4113.52 WAS TIME-BARRED. In his second assignment of error, appellant argues that the trial court erred in granting summary judgment in favor of appellees on appellant's claim for the common law tort of wrongful retaliatory action against a whistle blower in violation of the public policy. Appellant insists that he was entitled to maintain against his employer an independent common law cause of action based upon the public policy underlying R.C. 4113.52, without regard to the statute of limitations in R.C. 4113.52(D). In Greeley v. Miami Valley Maintenance Contractors (1990), 49 Ohio St.3d 228, the Supreme Court of Ohio held, "Public policy warrants an exception to the employment-at-will doctrine when an employee is discharged or disciplined for a reason which is prohibited by statute." Id. at paragraph one of the syllabus. "An at-will employee who is discharged or disciplined in violation of the public policy embodied in R.C. 4113.52 may maintain a common-law cause of action against the employer * * *, so long as that employee hadfully complied with the statute and was subsequently discharged ordisciplined." Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, paragraph three of the syllabus (emphasis added). At the trial court level, appellant only proffered one source of expressed public policy prohibiting the alleged retaliatory action, R.C.4113.52.2 As the court noted in Kulch: * * * However, the public policy embodied in the Whistle blower Statute is limited. By imposing strict and detailed requirements on certain whistle blowers and restricting the statute's applicability to a narrow set of circumstances, the legislature clearly intended to encourage whistleblowing only to the extent that the employee complies with the dictates of R.C. 4113.52. As we held in Contreras, supra, 73 Ohio St.3d 244, 652 N.E.2d 940, syllabus: "In order for an employee to be afforded protection as a `whistleblower,' such employee must strictly comply with the dictates of R.C. 4113.52. Failure to do so prevents the employee from claiming the protections embodied in the statute." * * * The obvious implication of Contreras is that an employee who fails to strictly comply with the requirements of R.C. 4113.52 cannot base a Greeley claim solely upon the public policy embodied in that statute. Id. at 153. In the instant case, appellant claims to have been wrongfully discharged for having reported sexual harassment. However, as discussed in our analysis of appellant's third assignment of error, appellant did not strictly comply with the requirements of R.C. 4113.52. In particular, appellant failed to file his whistleblower retaliation claims within one hundred eighty days as required by R.C. 4113.52(D).3 Accordingly, appellees were entitled to summary judgment on appellant's public policy claim. Appellant's second assignment of error is overruled. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN HOLDING THAT COUNT VII OF APPELLANT'S COMPLAINT, SETTING FORTH A STATUTORY CLAIM FOR WRONGFUL RETALIATORY DISCIPLINE UNDER R.C. S 4113.52, WAS TIME-BARRED, DESPITE APPLICABLE PRINCIPLES OR EQUITABLE TOLLING AND EQUITABLE ESTOPPEL. In his third assignment of error, appellant maintains that the trial court erred in granting summary judgment in favor of appellees on appellant's R.C. 4113.52 whistleblower retaliation claim.4 Appellant acknowledges that he failed to pursue this claim within one hundred eighty days as required by R.C. 4113.52(D). However, appellant alleges that he did not immediately commence litigation because Pinkerton representatives promised to investigate his complaints. Therefore, appellant insists that the doctrines of equitable estoppel and equitable tolling should be applied to toll the limitations period. The doctrines of equitable estoppel and equitable tolling may be employed to prohibit inequitable use of the statute of limitations. See, e.g., Livingston v. Diocese of Cleveland (1998), 126 Ohio App.3d 299,314. In order to establish equitable estoppel, a plaintiff must demonstrate that: (1) the defendant made a factual misrepresentation; (2) it was misleading; (3) it induced actual reliance which was reasonable and in good faith; and (4) it caused detriment to the relying party. Id. A plaintiff relying on equitable estoppel must show "actual or constructive fraud." Id. The plaintiff must show: (1) "an affirmative statement that the statutory period to bring an action was larger than it actually was"; (2) "promises to make a better settlement of the claim if plaintiff did not bring the threatened suit"; or (3) "similar representations or conduct. Id. at 315. We find that the representations by Pinkerton employees Richard Robinson, Larry Jorgenson and Carlos Maulina, viz., that Pinkerton would investigate appellant's complaints, do not demonstrate an intent to mislead appellant or prevent a timely lawsuit. The only representation that could have possibly satisfied the requirements of equitable estoppel was the request by Denise McGorrin, an attorney representing Pinkerton, asking appellant's attorney to "refrain from filing suit until she had a chance to investigate and make a determination into the merits of [plaintiff's] complaint." However, McGorrin allegedly made this request in December of 1993 or January of 1994, after expiration of the statute oflimitations. Based upon the foregoing, we find that the doctrines of equitable estoppel and equitable tolling do not excuse appellant's failure to file his statutory whistleblower retaliation claim within one hundred eighty days pursuant to R.C. 4113.52(D). The trial court did not err in granting appellees summary judgment in this regard. Accordingly, appellant's third assignment of error is overruled. IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT FOR APPELLEES AS TO COUNTS VI AND VII OF APPELLANT'S COMPLAINT, RELATING TO HIS CAUSES OF ACTION FOR INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS. In his fourth assignment of error, appellant contends that the trial court erred in granting summary judgment in favor of appellees on appellant's intentional and negligent infliction of emotional distress claims. Initially, we note this court has refused to recognize a separate tort for negligent infliction of emotional distress in the employment context. See Tschantz v. Ferguson (1994), 97 Ohio App.3d 693, 724. AccordStrawser v. Wright (1992), 80 Ohio App.3d 751, 754; Hatlestad v. Consol.Rail Corp. (1991), 75 Ohio App.3d 184, 191; Hanly v. Riverside MethodistHosp. (1991), 78 Ohio App.3d 73, 83; Antalis v. Ohio Dept. of Commerce (1990), 68 Ohio App.3d 650, 653; ad nauseam. As such, appellant's negligent infliction of emotional distress claim does not merit further consideration. In order to prevail on a claim for intentional infliction of emotional distress, a plaintiff must demonstrate that: (1) the actor either intended to cause emotional distress or knew or should have known that the actions taken would result in serious emotional distress to the plaintiff; (2) the actor's conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community; (3) the actor's actions were the proximate cause of the plaintiff's psychic injury; and (4) the mental anguish suffered by the plaintiff is serious and of a nature that no reasonable person could be expected to endure it. See Takach v. Am. Med. Technology, Inc. (1998), 128 Ohio App.3d 457,471. In Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374-375, the Supreme Court of Ohio adopted Restatement of the Law 2d, Torts (1965) 73, Section 46, Comment d, which states: Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. Applying this standard to appellant's allegations, we find that appellees' conduct, even if tortious and intentional, was not of the extreme nature required for an actionable intentional infliction of emotional distress claim. Consequently, the trial court did not err in granting summary judgment in favor of appellees on appellant's intentional infliction of emotional distress claim. Appellant's fourth assignment of error is overruled. V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT UPON COUNT II OF APPELLANT'S COMPLAINT FOR THE STATED REASON THAT APPELLANT HAD ALLEGEDLY FAILED TO MEET HIS BURDEN OF PROOF AS TO HIS CLAIM OF FRAUDULENT MISREPRESENTATION. As for his fifth assignment of error, appellant claims that the trial court erred in granting summary judgment to appellees on appellant's fraudulent misrepresentation claim. To prove fraudulent misrepresentation, a plaintiff must establish each of the following elements: (1) a representation; (2) which is material; (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (4) with the intent of misleading another into relying on it; (5) justifiable reliance upon the representation; and (6) a resulting injury proximately caused by the reliance. Cardi v. Gump (1997), 121 Ohio App.3d 16, 22. "All of these elements must be present if actionable fraud is to be found. The absence of one element is fatal to recovery." Westfield Ins. Co. v. HULS Am., Inc. (1998),128 Ohio App.3d 270, 296. As a general rule, fraudulent misrepresentation claims are predicated on past or existing facts, and not on promises or representations relating to future actions or conduct. Williams v. Edwards (1998),129 Ohio App.3d 116, 124. "Representations as to what will be performed or will take place in the future are regarded as predictions and are not fraudulent * * *." Tibbs v. Natl. Homes Constr. Corp. (1977),52 Ohio App.2d 281, 286. A representation relating to future conduct constitutes an actionable fraudulent misrepresentation only where an individual makes a promise concerning his future conduct and, at the time he makes it, he has no intention of keeping the promise. Williams, at 124. Appellant bases his fraudulent misrepresentation claim on allegations that various Pinkerton employees promised appellant that they would investigate his complaints and concerns. The trial court delineated appellant's accusations of fraudulent misrepresentation as follows: 1. On May 19, 1993, Regional Vice President Richard Robinson told plaintiff that he would "investigate all items addressed, discussed and documented by plaintiff." 2. On September 13, 1993, Vice-President Larry Jorgenson told plaintiff that "his complaints were serious and important" and that "Human Resources would bring him in and make a report and get back in touch with him." 3. On November 5, 1993, Human Resources employee Carlos Maulina told plaintiff that he would be "looking into the manner" "that he was awaiting a letter from plaintiff's counsel with information on the complaints" and that "when he received that letter the issues would be diligently and appropriately pursued." 4. In late December of 1993/January of 1994, Denise McGorrin told plaintiff that he would be dealt with fairly." 5. In late December of 1993/January of 1994, Denise McGorrin asked plaintiff's counsel to "refrain from filing suit until she had a chance to investigate and make a determination into the merits of [plaintiff's] complaint." The challenged statements were promises relating to future actions or conduct and, therefore, actionable only if appellant demonstrated that, at the time of the statements, the declarants had no intention of keeping the promises. Faced with summary judgment, appellant failed to present any evidence of the declarants' "present intention not to perform" when the representations were made. Appellant merely demonstrated that Pinkerton failed to fulfill the promises of its employees. In Wall v. Firelands Radiology, Inc. (1995) 106 Ohio App.3d 313, the Sixth Appellate District stated: "In order to be the basis for an action for fraud, however, the alleged misrepresentation cannot be predicated simply upon a promise to perform that subsequently is unfulfilled. Rather, the plaintiff must prove by a preponderance of the evidence, that at the time the promise to perform was made, the promisor did not intend to fulfill the promise. (Citation omitted.) The `mere proof of nonperformance does not prove a lack of intent to perform.'" (Citation omitted and emphasis sic.) See, also, Internatl. Travel Arrangers v. NWA, Inc. (C.A.8, 1993), 991 F.2d 1389, 1403: "`[F]raud cannot be predicated upon the mere fact that a promise has been broken * * *. There must be evidence to justify a trier of fact in concluding that, when the promise was made, there was no intention of performing it * * *. It would be as wrong morally as legally, as offensive to logic as to law, to hold that mere denial and nonperformance are evidence that, if a promise was made, it was made fraudulently * * *. Bad, indeed, would be the case of the honest man who has made no such promise if, when falsely charged with it, he may not deny it without having his truth considered as some evidence either that there was such undertaking or that it was deceitfully made.'" (Citations omitted.) Accord Murray v. Xerox Corp. (C.A.2, 1987), 811 F.2d 118, 122. Id. at 326, quoting the Lightning Lube, Inc. v. Witco Corp. (C.A.3, 1993), 4 F.3d 1153, 1186. Appellant insists that the evidence at least raises an inference that Pinkerton's management had the intention to mislead. In particular, appellant postulates that Pinkerton's representatives made the promises to appellant to lull him "into a false sense of security in hopes that he would delay in commencing litigation until a statute of limitations defense might be established." However, the record demonstrates that appellant was represented by counsel when some, if not most, of these representations were allegedly made. Under these circumstances, any delay in litigation would not constitute justifiable reliance on fraudulent misrepresentations but, rather, would indicate a legal malpractice claim against appellant's attorney. As for the representations made before appellant was represented by counsel, appellant fails to direct this court to any evidence that the declarants had no intention to investigate when they made these promises. Based upon the foregoing, we find that appellant failed to establish a viable claim of fraudulent misrepresentation. The trial court did not err in granting appellees' motion for summary judgment in this regard. Appellant's fifth assignment of error is overruled. VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEES ON APPELLANT'S CAUSES OF ACTION FOR DEFAMATION AND INVASION OF PRIVACY. In his final assignment of error, appellant argues that the trial court erred in summarily dismissing his claims of defamation and invasion of privacy. The elements of defamation are: (1) "that a false statement of fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a result of the publication, and (5) that the defendant acted with the required degree of fault in publishing the statement." Pollock v. Rashid (1996),117 Ohio App.3d 361, 368; Kassouf v. White (March 2, 2000), Cuyahoga App. No. 75446, unreported. As a general rule, the expression of opinion will not subject a party to liability for defamation. See Scott v. News-Herald (1986),25 Ohio St.3d 243, 250. "The totality of the circumstances must be examined to determine whether a published statement is constitutionally protected opinion." Id. at paragraph one of the syllabus. The factors to be examined include: (1) the specific language used; (2) whether the statement is verifiable; (3) the general context of the statement; and (4) the broader context in which the statement appeared. Id. at 250. The determination of whether a challenged statement constitutes opinion or fact is a question of law for the court to decide. Id. On appeal, appellant continues to insist that two comments by Kubisen were defamatory. First, Kubinsen allegedly referred to appellant as an "asshole" in the presence of other people. Kubinsen allegedly uttered the second challenged comment during an elevator ride with appellant and John Hurby. When Hurby asked if appellant could pick his arms up, Kubinsen allegedly cracked, "[h]e can't get it up all the way, that's what his wife said." We find that appellant failed to produce any evidence to support the contention that the "asshole" comment was a false statement of fact. As the trial court noted, Kubinsen was merely expressing his unverifiable opinion of appellant. Although verifiable and definitely insulting, Kubinsen's quip regarding appellant's sexual potency was obviously offered in jest and not as a statement of fact. Upon review of the challenged comments, we find that the trial court did not err in granting summary judgment in favor of appellees on the fourth count of appellant's complaint. In the fifth count of his complaint, appellant averred an invasion of privacy claim. "An actionable invasion of the right of privacy [includes] * * * the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." Rogers v. Buckel (1992),83 Ohio App.3d 653, 658. On or about May 28, 1993, Pinkerton launched an investigation of appellant and five other employees because several ATM machines the subject employees were servicing "showed a shortage." Pinkerton ordered a background check and appellant voluntarily submitted to a polygraph examination. As the trial court noted, the investigation of an employee under these circumstances is appropriate, reasonable and necessary. Accord Tohline v. Central Trust Co. (1988), 48 Ohio App.3d 280, 285 (Investigation by employer "does not constitute a wrongful intrusion where the appellant's activities potentially cast a pall on his trustworthiness at work."). The trial court also noted that appellant signed an Employment Acknowledgment form which set forth the terms and conditions of employment. Pursuant to section 15 of the form, appellant agreed to voluntarily cooperate with any investigation. Based upon the unique nature of the security industry, we find as a matter of law that Pinkerton's investigation does not translate into an actionable claim for invasion of privacy. The trial court did not err in granting summary judgment in favor of appellees on the fifth count of appellant's complaint. Appellant's sixth assignment of error is overruled. The judgment of the trial court is affirmed. It is ordered that appellees recover of appellant their 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. TIMOTHY E. McMONAGLE, J. CONCURS IN JUDGMENT ONLY; DIANE KARPINSKI, P.J. CONCURS IN IN PART AND CONCURS IN JUDGMENT ONLY IN PART. (See Concurring Opinion Attached). 1 We initially note that throughout his appellate brief, appellant claims to incorporate by reference briefs filed with the trial court. This is nothing more than an attempt to circumvent the forty page limit imposed by Loc.App.R. 16(A). Pursuant to App.R. 16, arguments are to be presented within the body of the merit brief. Therefore, we will disregard any argument not specifically and expressly addressed in the appellate briefs. Accord Williams v. Waller (Dec. 26, 1996), Cuyahoga App. No. 69069, unreported. 2 For the first time on appeal, appellant asserts that his common law tort claim was also based upon the public policy underlying R.C. Chapter 4112. This court has consistently refused to address arguments for the first time on appeal. See, e.g., BP Communications Alaska, Inc. v.Central Collection Agency (Mar. 9, 2000), Cuyahoga App. No. 75788, unreported, citing L.B. Folding Co. v. Gergel-Kellman Corp. (1994),94 Ohio App.3d 511, 521. 3 Appellees also claim that appellant failed to file a written report as required in R.C. 4113.52(A)(1)(a). However, appellant's self-serving testimony was sufficient to create a genuine issue of material fact in that regard. 4 Appellees assert that appellant's statutory whistleblower retaliation claim is barred by the doctrine of res judicata. In the previously filed federal case, the judge held that equitable estoppel did not excuse appellant's failure to file his EEOC charge within threehundred days. The federal court never discussed the application of equitable estoppel to appellant's R.C. 4113.52 claim. Res judicata applies only where there is an identity of issues. See Johnson v. Norman (1981), 66 Ohio St.2d 186, 190. Therefore, we summarily reject appellees' res judicata defense without further discussion.

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I concur with the lead opinion but in judgment only on Assignment of Error One. The recent U.S. Supreme Court case of Reeves v. SandersonPlumbing Prods. Inc. (2000), 530 U.S. 133; 120 S.Ct. 2097, clarified that a factfinder may consider a party's lack of credence as affirmative evidence of discrimination. I believe this subtle clarification requires a different analysis of facts than the lead opinion presents in this case. The main opinion states that "appellant failed to offer sufficient evidence that all three of Pinkerton's justifications for his demotion were pretext * * *." On the contrary, the employer's reasons stated in its memorandum explaining plaintiff's demotion could well be considered pretextual. For example, the employer claimed that plaintiff had a duty to report the sexual harassment claim, whereas there was evidence this duty fell only to "supervisors and/or management" and at the time of this incident he was neither Officer Perelka's supervisor nor a member of management. An exhibit indicates that another person had assumed his duties while he was on special assignment. Further, plaintiff asserts he was never part of management. If there is any question as to his position and duties, this question is a jury matter. Also potentially pretextual is the employer argument that plaintiff was obliged to "immediately" report what Perelka said. Appellant countered that there was no one for him to call on the evening of the 15th of April when he was called off duty and at home and that it was not until oral argument that anyone mentioned the 800 number that allegedly could be called at all times. Similarly rising to the level of pretext is the contingent explanation that that by allowing the situation to continue — that is, by advising Officer Perelka to conceal a tape recorder — plaintiff escalated the situation and opened Pinkerton's up to possible litigation. Again, if plaintiff had no supervisory duties that day and therefore no duty to report Perelka's conversation with him, he also had no attendant duty to discourage her from using a recorder, and he certainly would not be responsible for any litigation that would arise. Moreover, plaintiff clearly states Perelka was not his subordinate and he had no authority over Perelka the day of either incident, so he had no power to intervene. The lead opinion further argues that plaintiff "also failed to even raise an inference that retaliation actually motivated this decision."Ante 12. The opinion requires that in order for a reason to be considered pretext plaintiff must show not only that the reason is false but also that "discrimination was the real reason." In support the main opinion cites St. Mary's Honor Center (1993), 509 U.S. 502, and Olive v. ColumbiaHealthcare Corp. (Mar. 9, 1999) Cuyahoga App. Nos. 75249, 76349, unreported. Both cases, however, as well as the lower court's decision in the case at bar, were issued before Reeves v. Sanderson Plumbing Prods., Inc., was issued on June 12, 2000. Clarifying its earlier ruling in St.Mary's HonorCenter, the U.S. Supreme Court ruled in Reeves that the trier of fact may infer discrimination from the falsity of the employer's explanation. In other words, additional independent evidence of intentional discrimination is not necessary. Proof that the defendant's explanation is unworthy of credence in itself can function as affirmative evidence of intentional discrimination. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. In specifically stating the issue, the U.S. Supreme Court provided a full spectrum of lower court cases on this matter: * * * to resolve a conflict among the Courts of Appeals as to whether a plaintiff's prima facie case of discrimination (as defined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination. Compare Kline v. TVA, 128 F.3d 337 (CA6 1997) (prima facie case combined with sufficient evidence to disbelieve employer's explanation always creates jury issue of whether employer intentionally discriminated); Combs v. Plantation Patterns, 106 F.3d 1519 (CA11 1997) (same), cert. denied, 522 U.S. 1045 (1998); Sheridan v. E.I. DuPont de Nemours Co., 100 F.3d 1061 (CA3 1996) (same) (en banc), cert. denied, 521 U.S. 1129 (1997); Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104 (CA9) (same), cert. denied, 513 U.S. 946 (1994); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (CA7 1994) (same); Washington v. Garrett, 10 F.3d 1421 (CA9 1993) (same), with Aka v. Washington Hospital Center, 156 F.3d 1284 (CADC 1998) (en banc) (plaintiff's discrediting of employer's explanation is entitled to considerable weight, such that plaintiff should not be routinely required to submit evidence over and above proof of pretext), and with Fisher v. Vassar College, 114 F.3d 1332 (CA2 1997) (en banc) (plaintiff must introduce sufficient evidence for jury to find both that employer's reason was false and that real reason was discrimination), cert. denied, 522 U.S. 1075 (1998); Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (CA5 1996) (same); Theard v. Glaxo, Inc., 47 F.3d 676 (CA4 1995) (same); Woods v. Friction Materials, Inc. 30 F.3d (CA1 1994) (same). In Reeves the employer claimed it fired the employee because of his failure to discipline absent and late employees. The employee showed that this explanation was false. Like the employee in the case at bar he "similarly cast doubt on whether he was responsible for any failure to discipline late and absent employees," because his job was to review only daily and weekly attendance reports whereas disciplinary writeups were based on monthly reports reviewed by another employee. The U.S. Supreme Court concluded that a jury might reasonably reject the employer's proffered explanation and go even further: In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty out a material fact as affirmative evidence of guilt. Wright v. West, 505 U.S. 277, 296, 120 L.Ed.2d 225, 112 S.Ct. 2482 (1992); see also Wilson v. United States, 162 U.S. 613, 620-621, 40 L.Ed. 1090, 16 S.Ct. 895 (1896), 2 J. Wigmore, Evidence Para. 2782(2), p. 133 (J. Chadbourn rev. ed. 1979). (1992). * * * Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Id. at 2108-2109. In the case at bar, most of the explanations the employer offered could well cast doubt on the remaining reason the employer gave to the plaintiff in its memorandum: You superceded the chain of command by contacting Mr. Kubisen's supervisor the next day. If you had contacted Mr. Kubisen in a timely manner this matter could have been resolved with minimal effects to the operations of this office. Here is a "dammed if you do and dammed if you don't" explanation. On the one hand, plaintiff is criticized for not acting quickly. On the other hand, he is criticized for superceding the chain of command when he received no response. Blatantly pretextual on its face, moreover, is the claim that he superceded the chain of command. The company's policy provided as follows: "All supervisors and/or management will immediately report any such incidents of sexual harassment to the District Manager or RegionalVice President." (Emphasis added.) Thus the policy actually directed the call be made to the very person plaintiff called, Prassack, the District Manager. This provision does not even mention calling the supervisor. Furthermore, plaintiff presented evidence that another supervisor, Buettner,1 was aware of the first incident and did not report it until four days later. Yet Buettner was not treated adversely. In fact, not only was he not disciplined, he was promoted. Such difference in treatment is an additional basis to conclude plaintiff's demotion was in retaliation for his assisting Perelka. In other words, plaintiff was the only person who attempted to help the woman in a protected activity, and he was demoted a few days later, both in position and pay. The other reasons employer gave also appear inconsistent. The employer blamed him for upsetting the "operations of this office." The memo does not immediately specify how the office was affected. A few sentences later, however, the memo claims the following problem resulted from his "failure to bring this matter to the immediate attention of [his] immediate supervisor": 1. The discharge of a competent armed employee. If you [had] brought this to the attention of Mr. Kubisen, the employees involved in this matter would have been separated and counseled. Instead you allowed this situation to continue and advised Officer Perelka to conceal on her persons [sic] a tape recorder, thereby escalating this situation to the point that a [sic] employee was terminated. By so doing you have opened Pinkerton's up to possible litigation should she wish to pursue this matter. This explanation appears inconsistent with other evidence. Here, plaintiff was held responsible for another employee's discharge or the escalation of the matter, when the evidence shows he had no authority or responsibility in the matter. Furthermore, he stated that he advised her to report the matter if she believed that her co-worker was harassing her. The employer statement also alleges that he was demoted because the taping of the event put the employer in legal jeopardy. It is significant that nothing in this memo suggested that his actions put her in jeopardy. This is an explanation offered later in court and thus could properly be discredited. Rather, the memo focuses on the firm's liability, not her safety. The belated concern for her safety provides even sharper emphasis to the first written explanation: it was his role in assisting a victim in a potential sexual harassment claim and its effect on the firm's legal liability that caused his demotion. The only remaining explanation is that he gave false information to his supervisor. The majority says that providing a superior with misinformation is a form of insubordination, which is a legitimate and nondiscriminatory reason for his termination. The term the employer used in its memo explaining his demotion, however, was "false information." The employer explained this phrase as "stating that you were not aware of Officer Perelka's complaint until the morning of Friday, 4/16-93," whereas [e]vidence shows that you were aware of the complaint on 4/15-93." From these facts, the main opinion concludes that appellant provided misinformation. It is not obvious, however, that what he said was "misinformation," much less "false information." Plaintiff explains that in the evening telephone call to his home Perelka spoke in general terms, not with any specifics. She was, moreover, uncertain whether the officer was engaging in unlawful sexual harassment. In fact it was her suggestion, not his, that she return to work with a tape recorder in order to attempt to specify the allegations. However, appellant had told her that if she believed she was a victim of sexual harassment, she must report it. This context suggests that plaintiff may have viewed her statements as too uncertain to rise to the level of a "complaint." His viewing them as premature might also explain his decision to cite the later April 16 date when later asked when he first became aware of the complaint. What credence should be given to the employer's focus on the date must be judged, as plaintiff's brief suggests, in the context of the company policy that the victim "should promptly report the incident, preferably in writing (within 48 hours) * * *." If "48 hours" is a clue to what promptness means, the same standard may also be used to judge the duty of a supervisor in relating a complaint immediately. The company preference, moreover, for a written report belies any company concern for the imminent danger of the victim. Deciding whether Perelka's comments on April 15th rose to the level of a "complaint" and whether his statement was "false information" so as to trigger insubordination rather than a pretext to demote plaintiff is a question best left to a jury. The lead opinion believes the matter stops with this explanation by the employer. It does not. A factfinder may question the sufficiency of the only explanation not totally eliminated. In other words, if plaintiff was not responsible for reporting anything, the date he first learned of anything is not of significance. A factfinder might reasonably disbelieve, therefore, the sufficiency of this reason. Furthermore, a factfinder could reasonably conclude that given the blatant inconsistencies and clear lack of credence to the other explanations proffered, the only remaining reason is not only insufficient but also pretextual. Finally, the actions that the employer subsequently took could also provide further evidence of retaliation. Not only was he demoted both in status and pay, he was denied bonuses, scheduled overtime, and promotions. In addition, frequent shift and hour changes required him to resign from his part-time job with a police department. Thus I disagree with the lead opinion on the merits of Powers' claim. However, Powers missed the statute of limitations on his retaliation claims, both his R.C. 4112.02 and his 4113.52 claims.2 Both claims have the same 180-day limitation period. Otherwise, there would have been enough of a factual dispute to go forward with this case and let a jury decide his statutory retaliation claim. However, since he missed the time for filing, this issue is academic. 1 Buettner's duties are not clear in the record. In his appellate brief, plaintiff describes him as a "supervisory employee." The employer does not deny this characterization is its appellate brief and argues, rather, that plaintiff was "the superior officer of the three." 2 Defendant's motion argued that the claims were time-barred but did not specifically mention each claim. Id. at 3.

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OPINION *Page 2 {¶ 1} Appellant Danny Gearhart appeals from a judgment of the Richland County Common Pleas Court, Division of Domestic Relations. Appellant claims the trial court erred in finding the existence of a common law marriage between the parties, that certain real property was marital property, and it inappropriately awarded spousal support and COBRA coverage to Appellee. We affirm. STATEMENT OF THE FACTS AND CASE {¶ 2} Appellee Patricia Gearhart and Appellant began cohabitating in June of 1983, when the parties were ages 44 and 37, respectively. Appellee had a daughter from a previous marriage. Appellant was employed with AK Steel. Appellee was employed as a nurse's aide at Hillcrest Nursing Center. They contributed their pay checks to the same bank account and paid their household obligations from that account. The account was only in Appellant's name. Beginning in 1984, the parties filed federal joint income tax returns indicating they were husband and wife, using the last name Gearhart, and declaring Appellee's daughter as a dependent. {¶ 3} In 1985, the parties purchased and moved into a residence located at 7000 Follin Road, Bellville, Ohio. The property is titled in Appellant's name only. Appellant provided the $16,000 down payment from his wages. The Follin Road mortgage was paid off in 2002 or 2003 and is appraised at $80,000.00. {¶ 4} In 1982, Appellant had purchased undeveloped real estate in Knox County by land contract. The land contract was paid off in 1999. In 2001, Appellant sold the Knox County property for approximately $95,000.00. This amount was deposited in the Appellant's bank account. *Page 3 {¶ 5} The parties were ceremonially married on March 21, 1990. According to the parties, the marriage occurred so Appellee could be covered under Appellant's health insurance. No children were born as issue of this marriage. {¶ 6} In May of 2003, Appellant and his brother inherited 2005 James Road from their mother. In October of 2003, Appellant and Appellee moved into the property. In November of 2003, the parties purchased the brother's one-half interest in the property for $80,000.00. The James Road property was purchased with the proceeds from the Knox County property. Appellant and his brother transferred the James Road property to Appellant and Appellee by survivorship deed. The appraised value of the property is $143,000.00. There is no mortgage on the property. Appellant paid the real estate taxes and insurance out of his account. {¶ 7} Appellant inherited approximately $250,000.00 in assets from his mother's estate. In 2004, appellant received $25,000.00 for timber sold from his separate property. He does not expect additional income from timber for another 20 years. {¶ 8} Prior to the parties separating, there was a little more than $20,000.00 in cash hidden in a box spring mattress in the marital residence. This cash is now missing. {¶ 9} Appellee was last employed in 1995. She does not have any retirement benefits other than Social Security benefits in the amount of approximately $570 per month. Her monthly living expenses total $1,613.00. She has Medicare health insurance. However, without COBRA health insurance coverage, she would have significant uninsured medical expenses. *Page 4 {¶ 10} Appellant worked for A.K. Steel from 1969 until 1999, when he retired. He receives a total of $2,865 per month. He has V.A. disability benefits in the amount of $756.00 per month which are not taxable. He receives $1,629.00 in Social Security disability benefits which are not taxable until it reaches $32,000.00 per year. He receives $480 in pension. Appellant had monthly living expenses of $1,699.00. {¶ 11} Appellee filed for legal separation on April 18, 2005. Appellant answered and filed a counter-claim for divorce. The case came for hearing before a Magistrate on February 27, 2006 and May 15, 2006. At hearing, the parties entered in a joint stipulation that the Follin Road property was marital property. {¶ 12} On September 18, 2006, the Magistrate issued a detailed 31-page decision finding the parties had established a common law marriage in June, 1983; that both the Follin Road and James Road property were martial property; awarded Appellee $1,000 per month in spousal support for seven years (reduced by the amount of Appellee's gross monthly benefit from her share of the marital portion of the Appellant's A.K. Steel pension); and ordered Appellant to pay half of the monthly cost ($335) of COBRA health insurance coverage for Appellee. {¶ 13} Appellant filed objections to the decision. The trial court overruled Appellant's objections and approved the Magistrate's decision. The trial court issued a Judgment Entry and Decree of Divorce on February 7, 2007. {¶ 14} Appellant raises four Assignments of Error: {¶ 15} "I. THE COURT ERRED IN ITS DETERMINATION THAT A COMMON LAW MARRIAGE EXISTED BETWEEN THE PARTIES IN JUNE OF 1983." *Page 5 {¶ 16} "II. THE COURT ERRED IN ITS DETERMINATION THAT THE DOWN PAYMENT ON THE 7000 FOLLIN ROAD PROPERTY WAS MARITAL PROPERTY." {¶ 17} "III. THE COURT ERRED IN ITS DETERMINATION THAT THE 2005 JAMES ROAD PROPERTY WAS MARITAL PROPERTY." {¶ 18} "IV. THE COURT ERRED IN ITS AWARD OF SPOUSAL SUPPORT AND COBRA COVERAGE IT GRANTED APPELLEE." I. {¶ 19} Appellant contends the trial court erred in determining that Appellee had established a common law marriage. We disagree. {¶ 20} Ohio law prohibits the creation of common law marriages after October 10, 1991. R.C. 3105.12(B)(1). Prior to that time, common law marriages could be formed if the following elements were present: (1) an agreement of marriage in praesenti; (2) cohabitation as husband and wife; and (3) a holding out by the parties to those with whom they normally come into contact, resulting in a reputation as a married couple in the community. Nester v. Nestor (1984), 15 Ohio St.3d 143,145, 472 N.E.2d 1091. {¶ 21} Because common law marriages have always been disfavored in Ohio, the party asserting the marriage's existence had the burden to prove those elements by clear and convincing evidence. Id. at 146. {¶ 22} Appellee and Appellant were the only witnesses to testify at hearing. Appellee testified when the parties began living together they pooled their incomes and paid bills together, splitting expenses equally. T. at 9. They held themselves out to the public, including the federal government, as husband and wife. T. at 10. *Page 6 {¶ 23} Appellant testified that he did not consider himself married to Appellee until the ceremonial marriage in March, 1990. T. at 67. Appellant stated Appellee was not named on the bank account nor did the parties jointly title real estate prior to the ceremonial marriage. {¶ 24} Notably, Appellant did not deny that the parties held themselves out to the public as husband and wife, beginning in 1983. He testified he is "not sure" if he signed the federal joint income tax returns for years 1984 through 1989. He testified he didn't know that he received refunds based on the returns, or that Appellee's daughter was listed as a dependent on the joint returns. T. at 85. {¶ 25} It is generally up to the trial court, sitting as the trier of fact, to shift through the evidence, perform an evaluation and determine which side is more credible. Sulfridge v. Kindle, Adams App. No. 04CA795, 2005-Ohio-3929, ¶ 20, citations omitted. An appellate court typically defers to trial courts on issues of evidence weight and credibility because, as the trier of fact, trial courts are in a better position than appellate courts to view the witnesses and to observe their demeanor, gestures and voice inflections and to use those observations in weighing credibility. Id. It is also important to note that a trier of fact is free to believe all, part or none of the testimony of any witness who appears before it. Id. {¶ 26} In addition, we may not reverse a judgment as against the manifest weight of the evidence so long as it is supported by some competent, credible evidence. Id. at ¶ 23. *Page 7 {¶ 27} The trial court accepted the exhibits and Appellee's testimony that the parties lived together as husband and wife, beginning in June, 1983. We find the record is sufficient to support the trial court's conclusion. {¶ 28} Accordingly, assignment of error one is overruled. II. {¶ 29} Appellant's argues the trial court erred in finding the 7000 Follin Road property was marital property. {¶ 30} At hearing, the parties introduced, and the trial court admitted, Joint Exhibit A which states, in pertinent part, "The following is stipulated to be marital property: a. 7000 Follin Road, Bellville, Ohio 44813." {¶ 31} The stipulation is signed by both parties and their counsel. Likewise, the parties did not submit at hearing the issue of whether the subject property was marital or separate property. Post-hearing, the Appellant contended the down-payment on the subject property should be considered separate property when he submitted his proposed findings of fact and conclusions of law. {¶ 32} We find the trial court did not abuse its discretion in accepting the parties signed stipulation on this issue. {¶ 33} Accordingly, assignment of error two is overruled. III. {¶ 34} In his third assignment of error, Appellant submits the trial court erred in finding that the 2005 James Road property was martial property. This was the parties' marital residence at the time of their separation in April, 2005. *Page 8 {¶ 35} R.C. 3105.171(B) provides that "[i]n divorce proceedings, * * * the court may, determine what constitutes marital property and what constitutes separate property. In either case, upon such a determination, the court shall divide the marital and separate property equitably between the spouses, in accordance with this section. Pursuant to subsection (A)(3)(a) of the statute, "marital property" includes all real property currently owned by either spouse, or in which either spouse currently has an interest, that was acquired by either spouse during the marriage. {¶ 36} At hearing, Appellee claimed one-half interest in the James Road property because Appellant gifted to her half interest in the subject property by joint survivorship deed. T. at 16. {¶ 37} Appellant testified at hearing that Appellee's name was placed on the James Road property deed in November, 2003 so "only half of that would be in her name, by her signing her name on it, that's all. That's all." T. at 110. Appellant further testified that an attorney prepared the deed and put Appellee's name on it. He stated "He already put it on, it didn't make any difference anyhow it's my wife, * * *." T. at 80. When asked directly if he intended to gift over that property to Appellee, he stated: "Whatever that would mean, by her putting her name on it, signing her name to the deed." T. at 81. {¶ 38} Appellee also testified: "[h]e wanted me to have half the house in case something should happen to him so I would have a place to live." T. at 16. {¶ 39} Contrary to Appellant's assertion, there is no evidence in the record that Appellant transferred an interest to Appellee in the James Road property "strictly for *Page 9 estate planning purposes and not to transfer a present possessory interest in the property". Appellant's Reply Brief, at p. 5. {¶ 40} A spouse can convert separate property into marital property by making an inter vivos gift to his or her spouse. Helton v. Helton (1996), 114 Ohio App.3d 683, 685, 683 N.E.2d 1157, 1159. To prove that an inter vivos gift has been made, the following elements are required: (1) an intention on the part of the donor [husband] to transfer the title and right of possession of the particular property to the donee [wife] then and there and (2), in pursuance of such intention, a delivery by the donor to the donee of the subject matter of the gift to the extent practicable or possible, considering its nature, with relinquishment of ownership, dominion and control over it. Id. at 685-686. "The donee has the burden of showing by clear and convincing evidence that the donor made an inter vivos gift." Id. at 686. Clear and convincing evidence is that evidence "which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford (1954), 161 Ohio St. 469,120 N.E.2d 118, paragraph three of the syllabus. {¶ 41} The fact that both parties names are on the deed is not determinative of whether the property is marital or separate, but such evidence may be considered on the issue. R.C. 3105.171(H) and Gibson v.Gibson, Tuscarawas App. No. 2006 AP 01 0009, 2007-Ohio-2087. {¶ 42} In light of the execution and delivery of the joint survivorship deed, as well as the Appellant's testimony that half of the property was to be given to the Appellee as a result of the transfer, without any limitation or restriction, we cannot say the trial court erred in finding that the James Road property was marital property. *Page 10 {¶ 43} Appellant further argues that even if the subject property was marital property, it would be totally inequitable to the Appellant to allow the judicial division of the property in light of the fact Appellee brought no assets into the marriage and the wealth was accumulated by his family alone. We disagree. The record clearly established that Appellant's donative intent was to presently give half of the property to Appellee, there being no evidence in the record of intent to delay such interest until the death of a spouse. In addition, the marriage was of long duration, over twenty years, and the parties resided on the property as their marital home at the time of separation. {¶ 44} Accordingly, assignment of error three is overruled. IV. {¶ 45} Lastly, Appellant argues the trial court erred in its award of spousal support and COBRA coverage it granted to Appellee. {¶ 46} The sole basis for Appellant's argument appears to stem from his belief that the trial court's determination that the parties' marriage began in 1983 was erroneous, and therefore, the length of the marriage was much shorter in duration and spousal support was not appropriate. In addition, he challenges the trial court's finding that the parties had established a middle class standard of living during the marriage. {¶ 47} R.C. 3105.18 (C) lists several factors a court shall consider in determining an appropriate and reasonable spousal support, which includes: the parties' incomes, duration of the marriage, the parties' standard of living during the marriage, the assets and liabilities of the parties, and any other factor found to be relative and equitable. {¶ 48} A review of a trial court's decision relative to spousal support is governed by an abuse of discretion standard. The court of appeals cannot substitute its judgment *Page 11 for that of the trial court, unless, when considering the totality of the circumstances, the trial court abused its discretion. In order to find an abuse of discretion, we must find the trial court's decision was unreasonable, arbitrary or unconscionable. {¶ 49} Upon review of the record, we find substantial evidence to support the trial court's decision to award spousal support and COBRA coverage to Appellee. {¶ 50} For the foregoing reasons, the judgment of the Richland County Common Pleas, Division of Domestic Relations is affirmed. Delaney, J. Edwards, P.J. and Farmer, J. concur *Page 12 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Richland County Court of Common Pleas, Division of Domestic Relations is affirmed. Costs assessed to appellant. *Page 1

2016-07-06 06:36:09.539892+00

OPINION {¶ 1} Appellant, Michael J. Cottrell ("Cottrell"), appeals from the August 18, 2004 judgment of the Ashtabula Court of Common Pleas, which found him guilty of possession of drugs and imposed a nine month prison-term. {¶ 2} The relevant facts revealed at the suppression hearing are as follows. On May 26, 2003, Deputy Rick Schupska ("Schupska") and Deputy Michael Roach ("Roach"), of the Ashtabula County Sheriff's Department, responded to a call at a residence in Monroe Township to assist paramedics and rescue personnel from the Conneaut Fire Department. Cottrell's sixteen year old daughter, Tasha, placed the call for assistance and paramedics at the scene informed both Schupska and Roach that Cottrell was a diabetic and in an intoxicated state. Roach was informed by the paramedics that "they feared" that the combination of alcohol and his diabetes condition would put him at risk for a potential life threatening situation. {¶ 3} Schupska and Roach approached Cottrell, who was seated in the back seat of a vehicle in the driveway. Roach advised Cottrell that he was not there to arrest him, but rather to address Cottrell's "welfare." Roach encouraged Cottrell to exit the car and submit to a blood glucose test. Cottrell responded by shouting profanity and threatened to kill Roach. Cottrell proceeded to fight and kick at both Roach and Schupska, who ultimately used pepper spray in order to extricate him from the vehicle. {¶ 4} Cottrell was then placed under arrest for "aggravated disorderly conduct." A blood glucose level test was administered to Cottrell at the scene, and he was transported to the Ashtabula County Jail. Testimony established that due to his intoxicated state, Cottrell was placed in an isolation cell. Pursuant to jail policy, Cottrell was subjected to a strip search, and ordered to change into a jail uniform. Officer Dan Hazen ("Hazen") testified that when "Cottrell pulled his pants and underwear down, a "small baggie containing a white powdery substance fell on the ground." Hazen asked Cottrell, "what is this?" Cottrell responded that it was `his speed" and that it keeps him going." The Bureau of Criminal Identification later identified the substance as 1.83 grams of methamphetamine. {¶ 5} On September 5, 2003, Cottrell was indicted on one count of possession of drugs pursuant to R.C. 2925.11(A), a felony of the fifth degree. Cottrell pled not guilty to the possession of drugs charge and later filed a motion to suppress claiming that, pursuant to R.C. 2935.26, it was unlawful to arrest him for a minor misdemeanor and, therefore, unlawful to search him incident to that arrest. On May 12, 2004, a hearing was held on the motion, and witnesses testified. After hearing the evidence, the trial court denied Cottrell's motion to suppress finding that "the deputies had probable cause to arrest [Cottrell] for Disorderly Conduct." Thus, the evidence and statements by Cottrell were admissible evidence pursuant to a lawful arrest. {¶ 6} The drug possession case proceeded to jury trial on May 25, 2004. The jury returned a verdict finding Cottrell guilty of drug possession. On August 18, 2004, Cottrell was sentenced to a nine month prison-term and suspension of his driver's license for a period of one year. It is from that judgment that Cottrell has filed a timely appeal, asserting two assignments of error: {¶ 7} "[1.] The trial court erred in denying suppression of the results of a warrant less search of the Defendant. {¶ 8} "[2.] The trial court erred in imposing a prison term without making all required findings." {¶ 9} In his first assignment of error, Cottrell alleges that the trial court erred by overruling his motion to suppress the plastic baggie containing methamphetamine and his statements to the officer that the baggie contained "speed" that was owned by him. {¶ 10} At a hearing on a motion to suppress, the trial court assumes the role of the trier of facts and, therefore, is in the best position to resolve questions of fact and evaluate the credibility of witnesses.State v. Mills (1992), 62 Ohio St.3d 357, 366. When reviewing a motion to suppress, an appellate court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence.State v. Guysinger (1993), 86 Ohio App.3d 592, 594. Accepting these findings of facts as true, a reviewing court must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the appropriate legal standard. State v. Curry (1994),95 Ohio App.3d 93, 96. {¶ 11} Under his first assignment of error, Cottrell challenges the lawfulness of his arrest for disorderly conduct. Cottrell relies upon R.C. 2935.26(A) which generally requires the issuance of a citation, rather than a custodial arrest, in the case of the offense of a minor misdemeanor. {¶ 12} The statute for disorderly conduct is R.C. 2917.11, which states in part: {¶ 13} "(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following: {¶ 14} "(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior. {¶ 15} "* * * {¶ 16} "(B) No person, while voluntarily intoxicated, shall do either of the following: {¶ 17} "* * * {¶ 18} "(2) Engage in conduct or create a condition that presents a risk of physical harm to the offender or another, or to the property of another. {¶ 19} "* * * {¶ 20} "(D) If a person appears to an ordinary observer to be intoxicated, it is probable cause to believe that person is voluntarily intoxicated for purposes of division (B) of this section." {¶ 21} Cottrell was arrested under the subsection that enhances the crime to a fourth-degree misdemeanor if "(a) the offender persists in disorderly conduct after reasonable warning or request to desist" or if "(c) the offense is committed in the presence of any law enforcement officer, firefighter, rescuer, medical person, emergency medical services person, or other authorized person who is engaged in the person's duties at the scene of a fire, accident, disaster, riot, or emergency of any kind." R.C. 2917.11(E)(3). {¶ 22} Upon review of the record, we conclude that the trial court's decision that the arrest of Cottrell was lawful, is supported by competent, credible evidence. {¶ 23} In this case, Cottrell was arrested for disorderly conduct, a fourth degree misdemeanor, but he was never prosecuted for that offense. Thus, the question is not whether the evidence supported a finding beyond a reasonable doubt that Cottrell committed disorderly conduct. The question is whether the officer had probable cause or a reasonable basis to believe that Cottrell had committed disorderly conduct. State v.Glenn, 1st Dist. No. C-030356, 2004-Ohio-1489, at ¶ 26. {¶ 24} Under this assignment of error, Cottrell does not assert that he did not commit disorderly conduct. Instead, he contends that the prosecution failed to establish its burden to prove disorderly conduct to warrant an immediate arrest. Specifically, he argues that neither Roach or Schupska warned or requested him "to desist" from disorderly conduct. He relies on Roach's testimony which established that Cottrell was warned only that he would be arrested if he did not consent to medical treatment, i.e., the glucose blood test. Therefore, Cottrell contends that his arrest for disorderly conduct was unlawful. We disagree. {¶ 25} We find that testimony established that Cottrell's disorderly conduct was committed in the presence of officers, and paramedics summoned to Cottrell's home on a call of medical emergency. Testimony established that Cottrell was a "brittle diabetic", and that he appeared to be intoxicated. Paramedics were summoned to the scene by Tasha and other family members who were concerned about Cottrell's medical well-being. Roach and Schupska were called to the scene to assist the paramedics. {¶ 26} At the hearing, Roach testified that Cottrell "used profanity" towards [Roach] and "threatened to kill [him]." Roach testified that he talked with Cottrell "for several minutes, trying to convince him to allow the medics to treat him, without success * * *." Roach verified with the paramedics that the medical condition of Cottrell "could be life threatening" based upon his apparent alcohol consumption and given his diabetic condition. Roach testified that "I went back to the car and * * * asked one last time for [Cottrell] to be checked by medics, and if not then he would be placed under arrest because of the fact that I could not allow [Cottrell] to be placing himself in a position where he could die." Roach testified that Cottrell responded by continuing the use of profanity and again threatened Roach. It was then that Roach and Schupska removed Cottrell from the vehicle and arrested him for "aggravated disorderly conduct." Paramedics at the scene performed an immediate blood glucose test on Cottrell. {¶ 27} Based upon the foregoing, we conclude that Roach had a reasonable basis to believe that he needed to arrest Cottrell to obtain control of the emergency medical situation and that he had a reasonable basis to believe that Cottrell had committed disorderly conduct. The trial court as the trier of fact, weighed the testimony and believed the testimony of Roach and Schupska was sufficient to demonstrate that Cottrell was lawfully arrested for disorderly conduct, enhanced to a misdemeanor of the fourth degree, pursuant to R.C. 2917.11(E)(3)(c). Since the arrest was lawful, the trial court did not err in denying Cottrell's motion to suppress. Cottrell's first assignment of error is without merit. {¶ 28} In his second assignment of error, Cottrell contends that the trial court erred in imposing a prison-term of nine months without making all necessary findings. {¶ 29} We must initially note that appellant has served the nine month prison-term on which the current appeal is based. This court denied Cottrell's motion for bail and stay of sentence pending appeal. Cottrell began serving his prison-term on August 19, 2004, with eight days credit for time served. Thus, Cottrell completed his prison-sentence at the time this appeal was heard in October 2005. {¶ 30} We cannot grant relief to a defendant who has served his or her sentence if the underlying conviction or plea itself is not an issue.State v. Anderson, 11th Dist. No. 2003-A-0131, 2005-Ohio-4655, at ¶ 12;State v. Farmer, 11th Dist. No. 2003-A-0050, 2005-Ohio-2066, at 7; Statev. Smith, 11th Dist. No. 2003-L-046, 2004-Ohio-5312, at ¶ 11. As Cottrell alleges no collateral disability or loss of rights which might be remedied by a modification of his sentence, and has already served his time, his second assignment of error is rendered moot. {¶ 31} The judgment of the trial court is affirmed. O'Neill, J., Rice, J., concur.

2016-07-06 06:36:09.584114+00

DECISION {¶ 1} James L. McGill filed this action in mandamus seeking a writ of mandamus which compels the Industrial Commission of Ohio ("commission") to vacate its order denying him permanent total disability ("PTD") compensation and which compels the commission to grant the compensation. {¶ 2} In accord with Loc.R. 12, the case was referred to a magistrate to conduct appropriate proceedings. The parties stipulated the pertinent evidence and filed briefs. *Page 2 The magistrate then issued a magistrate's decision which contains detailed findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate's decision includes a recommendation that we deny the request for a writ. {¶ 3} Counsel for Mr. McGill has filed objections to the magistrate's decision. Counsel for the commission has filed a memorandum in response. The case is now before the court for a full, independent review. {¶ 4} In 1981, Mr. McGill injured his back while employed as a laborer for Clark Brothers Felt Co., Inc. His claim has been recognized for "right lower back; herniated nucleus pulposis L5-S1." His injuries have led to two surgeries and left him capable of sedentary employment with restrictions on stooping, bending, climbing, crawling and operating heavy equipment. {¶ 5} Mr. McGill's work history includes employment as a dishwasher and material handler. He has worked also at temporary jobs. In reviewing his application for PTD compensation, a staff hearing officer ("SHO") made no mention of any transferable skills, but found Mr. McGill's age and high school education to be an asset. The SHO repeatedly noted that Mr. McGill had not engaged in rehabilitation services and seems to have viewed that as a negative. However, the SHO felt Mr. McGill could perform unskilled sedentary work and could benefit from on-the-job training. {¶ 6} In his objections to the magistrate's decision, counsel for Mr. McGill complains that the SHO and the magistrate should not view Mr. McGill's failure to pursue rehabilitation earlier as a negative because Mr. McGill had his medical condition *Page 3 deteriorate markedly about a few years ago. Mr. McGill had the ability to return to his former employment without additional skills being acquired until his condition deteriorated. {¶ 7} We acknowledge that under these circumstances, the failure to pursue rehabilitation services is a neutral factor. Had Mr. McGill pursued opportunities to increase his skills, that pursuit would have been a positive consideration. However, his failure to pursue these opportunities when he already had the skills necessary for full-time employment is not a negative. This does not end our review of the issues before us. Mr. McGill is medically capable of sedentary employment. He has at least average intelligence. He is still relatively young (mid 40's) such that he could be expected to acquire new skills via on-the-job training or other skill training. Because he can be expected to have many years in the workforce, an employer could be expected to view his age as an asset. The first set of objections is overruled. {¶ 8} In the objections, counsel for Mr. McGill also contests the failure of the SHO to discuss transferable skills. Transferable skills are not automatically required for unskilled sedentary work, especially when the injured worker has the intellectual ability to complete high school and is still in his mid 40's. The second set of objections to the magistrate's decision is overruled. {¶ 9} We adopt the findings of fact and conclusions of law contained in the magistrate's decision. *Page 4 {¶ 10} As a result of our independent review, we deny a writ of mandamus which would compel the commission to vacate its order denying PTD compensation for James L. McGill. Objections overruled; writ denied. BROWN and BOWMAN, JJ., concur. BOWMAN, J., retired of the Tenth Appellate District, assigned to active duty under the authority of Section 6(C), Article IV, Ohio Constitution. *Page 5 APPENDIX A MAGISTRATE `S DECISION IN MANDAMUS {¶ 11} In this original action, relator, James L. McGill, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying him permanent total disability ("PTD") compensation, and to enter an order granting said compensation. *Page 6 Findings of Fact: {¶ 12} 1. On April 28, 1981, relator sustained an industrial injury while employed as a laborer for respondent Clark Brothers Felt Co., Inc., a state-fund employer. On that date, relator injured his lower back when he slipped and fell on a wet floor. The industrial claim is allowed for "right lower back; herniated nucleus pulposus L5-S1," and is assigned claim number 81-44735. {¶ 13} 2. Relator was 20 years of age on the date of his industrial injury. He last worked during 1982. {¶ 14} 3. Relator has had two back surgeries related to his industrial injury. His first surgery occurred in 1989. His second surgery occurred in March 2004, and was performed by Daryl R. Sybert, D.O. The second surgery is described by Dr. Sybert as an "interbody fusion at L5-S1 for lumbar disk herniation." {¶ 15} 4. On July 21, 2005, at the request of the Ohio Bureau of Workers' Compensation ("bureau"), relator was examined by Marc W. Whitsett, M.D., who wrote: The functional limitations solely due to the allowed physical conditions in this claim are as follows: he can frequently lift up to 5 pounds, occasionally up to 20 pounds, but should avoid lifting and carrying over 20 pounds. He can occasionally bend and stop [sic], but should not crawl or climb. He can frequently reach. He has total restriction with driving an automobile in the workplace and unprotected heights. He can be around machinery, has no restrictions with regards to temperature and humidity or dust fumes and gases. He can sit up to an hour, stand up to an hour, walk up to an hour as long as he is able to transition his position frequently in an 8-hour day sitting 6 hours and standing and walking up to an hour or two depending on comfort level. He can use his hands for simple grasping, pushing and pulling *Page 7 arm controls and fine manipulation tasks. He should not use his feet in repetitive movements of leg controls. In my medical opinion he is at maximum medical improvement and these are permanent restrictions but is a candidate for vocational rehabilitation in the form of job retraining and job search. This does not preclude MMI. {¶ 16} 5. During June and July 2005, relator was evaluated for vocational rehabilitation by Rehabilitation Concepts, Inc. In a report dated July 18, 2005, Rehabilitation Concepts, Inc., concluded that relator "is not a viable candidate for vocational rehabilitation programming." {¶ 17} 6. On November 4, 2005, relator filed an application for PTD compensation. In support, relator submitted a report dated October 15, 2005, from Steven Tanzer, D.O., stating: I cannot state strongly enough that Mr. McGill is unemployable to the type of work that he did, and currently based on his age, education and work history, I feel that Mr. McGill should be considered permanently and totally disable[d]. {¶ 18} 7. On January 5, 2006, at the commission's request, relator was examined by James H. Rutherford, M.D., who wrote: * * * It is my medical opinion that Mr. James L. McGill has a 28% permanent partial impairment of the whole person as a result of the claim allowances of Claim #81-44735. This is based on a DRE Category V impairment of the lumbosacral spine, with the reference being Table 15-3 on p. 384. Mr. McGill has had a fusion at the L5-S1 level, and he still has evidence of radiculopathy in his clinical examination. * * * Based only on the claim allowances of Claim #81-44735 and the orthopedic evaluations related to those claim allowances, it is my medical opinion that Mr. James L. McGill is capable of work activities, and I've indicated in the *Page 8 Physical Strength Rating Form that he is limited to sedentary work activities. {¶ 19} 8. Also, on January 5, 2006, Dr. Rutherford Completed a Physical Strength Rating form on which he indicated that relator is capable of sedentary work. He indicated further limitations: "No stooping, bending, climbing or crawling. Can drive for his own transportation, but not heavy equipment." {¶ 20} 9. Following an April 26, 2006 hearing, a staff hearing officer ("SHO") issued an order stating: This order is based upon reports from Dr(s). Sybert, Whitsett and Rutherford. A review of the information on file shows that this claim arose as a result of a slip and fall incident on 04/28/1981. At that time, the injured worker was age 20. There have been two surgical procedures in the claim, a laminectomy in 1989 and a fusion procedure in March of 2004. On file is a report dated 03/29/2005 from Dr. Sybert, the physician who performed the injured worker's fusion surgery. In that report, Dr. Sybert indicated that he estimated that the injured worker would require a 20 pound lifting restriction. Also on file is a report dated 07/21/2005 from Dr. Whitsett. Dr. Whitsett performed an examination on the question of extent of disability on behalf of the Bureau of Workers' Compensation. Dr. Whitsett did find the injured worker to be at a level of maximum medical improvement. Dr. Whitsett further opined that the injured worker could frequently lift up to 5 pounds and occasionally lift up to 20 pounds. Dr. Whitsett further commented that the injured worker could occasionally bend and stoop, and that he could drive an automobile for his own transportation. The injured worker would be able to be around machinery, with sitting, standing and walking restrictions of an hour at a time each. Lastly, the injured worker was examined on behalf of the Industrial Commission on 01/05/2006 by Dr. Rutherford, an orthopedic specialist. Dr. Rutherford reviewed the information *Page 9 on file and conducted a thorough physical examination. It was Dr. Rutherford's opinion that the injured worker would be limited to sedentary activities, with occasional standing and walking. Dr. Rutherford suggested that the injured worker could lift up to 10 pounds occasionally, but that he could not do stooping, bending, climbing or crawling for work activities. The injured worker could drive for his own transportation but could not drive heavy equipment. Dr. Rutherford noted that the injured worker does have satisfactory use of his upper extremities. Vocationally, the injured worker was only age 20 when this injury occurred, and he is currently age 45. An individual of this age would ordinarily be expected to have up to 20 more years remaining in the work force. The injured worker did complete high school in 1979. As a work history, the injured worker has been employed as a dish washer, as a material handler and as a worker at temporary jobs. There was a rehabilitation evaluation in the year 2005, at which time it was found that the injured worker was not a candidate for vocational rehabilitation services. However, it can not be ignored that the injured worker was very young when this injury occurred, and that there was not rehabilitation activity early on in this claim. The injured worker's age is found to be a distinct asset. Likewise, he does have a high school education. The injured worker's work history is somewhat limited to manual types of jobs, but he was only in the work force for a short period of time before this injury occurred. Injured workers do have some responsibility as far as participating in rehabilitation services and trying to improve their position, especially when they are injured at a young age. This has not been done in this case. In summary, it is found that the injured worker retains the physical capacity to perform sedentary work, within the restrictions given by Dr. Rutherford. This claim does involve only the injured worker's low back condition, with the remainder of his physical being not affected by this claim. Vocationally, and as more fully explained above, it is found that the injured worker has not participated in rehabilitation services which, if undertaken sooner, may have improved his employment potential. Even so, at the injured worker's *Page 10 current age, it is found that he does maintain the potential to perform unskilled sedentary work and to benefit from on-the-job training, and to adapt to employment within his claim related restrictions. It is therefore found that the injured worker is not permanently and totally disability [sic] due to the allowed conditions in this claim. {¶ 21} 10. On February 21, 2007, relator, James L. McGill, filed this mandamus action. Conclusions of Law: {¶ 22} It is the magistrate's decision that this court deny relator's request for a writ of mandamus, as more fully explained below. {¶ 23} For its threshold medical determination, the commission, through its SHO, determined that the industrial injury permits sedentary work based upon the report of Dr. Rutherford. Here, relator does not challenge the commission's determination that he is medically able to perform sedentary work. However, relator does challenge the commission's analysis of the nonmedical factors. {¶ 24} The Supreme Court of Ohio has repeatedly held that a claimant's failure to undergo rehabilitation or retraining can be a factor for the commission's consideration in a PTD adjudication. State ex rel. Wilsonv. Indus. Comm. (1997), 80 Ohio St.3d 250; State ex rel. Wood v. Indus.Comm. (1997), 78 Ohio St.3d 414; and State ex rel. Bowling v. NationalCan Corp. (1996), 77 Ohio St.3d 148. {¶ 25} The Wilson court states, at 253-254: We view permanent total disability compensation as compensation of last resort, to be awarded only when all reasonable avenues of accomplishing a return to sustained remunerative employment have failed. Thus, it is not unreasonable to expect a claimant to participate in return-to- *Page 11 work efforts to the best of his or her abilities or to take the initiative to improve reemployment potential. While extenuating circumstances can excuse a claimant's non-participation in reeducation or retraining efforts, claimants should no longer assume that a participatory role, or lack thereof, will go unscrutinized. {¶ 26} In its analysis of the nonmedical factors, the commission, through its SHO, stated that, although relator underwent a vocational rehabilitation evaluation in 2005, "it can not be ignored that the injured worker was very young when this injury occurred, and that there was not rehabilitation activity early on in this claim." Later, the SHO found that, had rehabilitation services been undertaken sooner, it may have improved relator's employment potential. Relator contends that these findings regarding the failure to seek out rehabilitation earlier constitute an abuse of discretion. {¶ 27} According to relator, he was under no obligation to seek out vocational rehabilitation early on in his claim because there was allegedly no indication early on in his claim that he would become unable to perform the work he had previously done. According to relator, it was not until the year 2001, some 20 years after the injury, that his allowed conditions increased in severity. Then, in 2004, he had to undergo major surgery. In 2005, it was determined at Rehabilitation Concepts, Inc., that relator was not a viable candidate for vocational rehabilitation. {¶ 28} In the magistrate's view, this court need not determine whether the commission abused its discretion regarding the vocational rehabilitation issue put forth by relator. {¶ 29} Significantly, following the SHO's statement that an earlier participation in rehabilitation services "may have improved his employment potential," the SHO begins *Page 12 the next sentence with the words "[e]ven so," thus indicating that the rehabilitation finding was not viewed as critical to the SHO's conclusion that relator can perform sustained remunerative employment. {¶ 30} Relator's high school education and relatively young age were found to be vocational assets. Apparently, relator's work history was not viewed as a positive factor because it is "somewhat limited to manual types of jobs." {¶ 31} Clearly, relator's high school education and his relatively young age support a denial of PTD compensation as determined by the SHO, notwithstanding the issue regarding vocational rehabilitation. SeeState ex rel. Ellis v. McGraw Edison Co. (1993), 66 Ohio St.3d 92, andState ex rel. Murray v. Mosler Safe Co. (1993), 67 Ohio St.3d 330. {¶ 32} Accordingly, for all the above reasons, it is the magistrate's decision that this court deny relator's request for a writ of mandamus. *Page 1

2016-07-06 06:36:11.374694+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JUDGMENT ENTRY. This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1). Plaintiff-appellant Madelyn Kraft appeals the trial court's entry of summary judgment in favor of defendant-appellee Janette Wuestefeld. In August 1998, Kraft injured her ankle after a cart knocked into the back of her leg. Kraft filed a complaint against Wuestefeld for negligent supervision of her son.1 In the complaint, Kraft alleged that Wuestefeld's son (who was three years old at the time) had pushed the cart into the back of Kraft's leg, causing injury to her leg. Wuestefeld filed a motion for summary judgment, arguing that parental liability could not be imposed against her because no evidence was presented that Wuestefeld had breached a duty owed to Kraft. In her sole assignment of error, Kraft alleges that the trial court erred in granting summary judgment in favor of Wuestefeld, because a genuine issue of material fact existed relating to whether Wuestefeld was negligent in supervising her child. On appeal, this court conducts a de novo review of the entry of summary judgment.2 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.3 The moving party bears the burden of pointing out in the record where it is shown that no genuine issue of material fact remains.4 Once the moving party satisfies its burden, the nonmoving party has the reciprocal burden of setting forth specific facts demonstrating that a genuine issue exists to be litigated.5 Parents are not ordinarily liable for the torts of their minor children under the common law.6 But liability may arise where the parents' negligence relates to the conduct of a minor child.7 According toHuston v. Konieczny, parents may incur liability through the actions of a minor child under the following circumstances: (1) when they negligently entrust their child with an instrumentality that becomes a source of danger; (2) when they fail to exercise reasonable control over the child when they know, or should have known, that injury to another is a probable consequence; and (3) when they know of the child's wrongdoing and consent to it, direct it, or sanction it.8 To support her negligence claim, Kraft must identify as a matter of a law a duty owed to her.9 To establish liability in the first two situations delineated in Huston v. Konieczny, there is a duty to exercise reasonable care to avoid foreseeable injury to others.10 Forseeability is established by pointing to "specific instances of prior conduct sufficient to put a reasonable person on notice that the act complained of was likely to occur."11 Nothing in the record points to prior instances of conduct demonstrating that Wuestefeld's minor child had a propensity for misbehavior. Kraft and Kraft's sister-in-law, who was with Kraft when she was injured, testified that they did not observe Wuestefeld's child misbehaving prior to the accident. An assistant manger for The Kroger Co., who responded to the accident, testified that there had been no complaints about Wuestefeld's child misbehaving. And nothing in the record demonstrates that Wuestefeld had prior knowledge that her minor child had a particular propensity for misbehavior. Rather, Wuestefeld testified that her son's behavior had always been typical of a child his age. Thus, when viewing the evidence in the light most favorable to Kraft, we hold that Kraft's injuries were not foreseeable because Kraft did not cite to any specific instances of prior conduct sufficient to put a reasonable person on notice that Wuestefeld's minor child was likely to push a shopping cart into someone. As for the third situation identified in Huston, nothing in the record demonstrates that Wuestefeld consented to, directed, or sanctioned her child's alleged misconduct. It is uncontroverted that Kraft was injured at a Kroger store by a shopping cart that hit Kraft's leg. It is also uncontested that Wuestefeld and her minor child were in the same aisle as Kraft when she was injured. But there is conflicting evidence in the record concerning whether Wuestefeld's child actually pushed the shopping cart into Kraft. With the evidence viewed in the light most favorable to Kraft, the mere fact that Wuestefeld apologized for Kraft's injury does not demonstrate that Wuestefeld had consented to, directed, or sanctioned her child's alleged conduct. In sum, we hold that Kraft was entitled to summary judgment because, with the evidence viewed in the light most favorable to Kraft, there was no genuine issue of material fact, and Wuestefeld was entitled to judgment as a matter of law. The judgment of the trial court is, therefore, affirmed. Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. Doan, P.J., Gorman and Sundermann, JJ. 1 A claim was also filed against The Kroger Co. and John Doe. Kroger was dismissed without prejudice, and John Doe never received service of process. 2 See Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,1996-Ohio-336, 671 N.E.2d 241. 3 See id.; Temple v. Wean United (1977), 50 Ohio St.2d 317, 327,364 N.E.2d 267. 4 See Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107,662 N.E.2d 264. 5 See id. See, also, Civ.R. 56(E); Vahila v. Hall, 77 Ohio St.3d 421,429, 1997-Ohio-259, 674 N.E.2d 1164. 6 See Huston v. Konieczny (1990), 52 Ohio St.3d 214, 556 N.E.2d 505, syllabus. 7 See id. 8 See id. at 217-218. 9 See Nearor v. Davis (1997), 118 Ohio App.3d 806, 812, 694 N.E.2d 120. 10 See id. at 813. 11 Id., quoting Haefele v. Phillips (Apr. 23, 1991), 10th Dist. No. AP-1331. Accord Hau v. Gill (July 14, 1999), 9th Dist. No. 98CA007061.

2016-07-06 06:36:11.462217+00

OPINION On May 14, 1998, plaintiff, Carol J. Jackman, filed a complaint in the Franklin County Court of Common Pleas against defendant, Sarah Nicholson. The complaint resulted from an automobile accident which occurred on May 1, 1997, at the intersection of Dublin Road and Grandview Avenue in Franklin County, Ohio, and alleged damages for personal injury based upon defendant's negligence in the operation of her automobile. Defendant filed an answer denying the allegations of the complaint and included a counterclaim alleging personal injury based upon plaintiff's negligence in the operation of her automobile. After defendant's claims were settled, the trial court dismissed her counterclaim with prejudice. Plaintiff was later granted leave to amend her complaint to include a loss of consortium claim on behalf of her husband, Craig Jackman.1 In February 2000, the trial court granted the motion to intervene filed by plaintiff's insurer, Community Insurance Company. The case was birfurcated as to liability and damages. The liability phase was tried to a jury over three days beginning February 7, 2000. At trial, plaintiff testified that at approximately 5:45 p.m. on May 1, 1997, she was traveling westbound in the center lane of Dublin Road. As she approached the intersection of Dublin Road and Grandview Avenue, she noticed two cars turning northbound onto Grandview Avenue from eastbound Dublin Road. After those cars cleared the intersection, she entered the intersection as the traffic signal changed from green to yellow. Once in the intersection, plaintiff noticed defendant's vehicle in the left turn lane of eastbound Dublin Road. Plaintiff assumed that since she was already in the intersection, defendant would not turn northbound onto Grandview Avenue until plaintiff was through the intersection. Defendant, however, commenced her turn while plaintiff was still in the intersection and subsequently struck plaintiff's vehicle. Richard McGinnis, a traffic engineer, testified as an expert witness on behalf of plaintiff. McGinnis testified that when the signal was green for eastbound Dublin Road traffic, it was also green for traffic traveling westbound on Dublin Road. McGinnis, however, offered no opinion as to the color of the traffic signal at the time of the collision. Defendant testified that just prior to the collision, she was behind two vehicles in the left turn lane of eastbound Dublin Road. As the two vehicles ahead of her turned left onto northbound Grandview Avenue, she moved into the intersection. At the time she entered the intersection, the traffic signal was green. After the westbound Dublin Road traffic cleared, defendant initiated a left turn onto Grandview Avenue. As she made the turn, her vehicle was struck by plaintiff's vehicle as it traveled westbound on Dublin Road. Defendant testified that she did not see plaintiff's vehicle coming toward her when she began her turn onto Grandview Avenue. She further testified that she last looked at the traffic signal as she entered the intersection and did not notice the color of the signal when she initiated the turn. She testified, however, that prior to making the turn, she noticed that the traffic directly opposite her in the left turn lane of westbound Dublin Road had stopped. William Gross, an eyewitness to the accident, testified on behalf of defendant. Gross testified that he was traveling westbound on Dublin Road at approximately 5:45 p.m. on May 1, 1997, approaching the intersection of Grandview Avenue. As the traffic signal changed from yellow to red, he slowed to stop his vehicle. According to Gross, the vehicle directly ahead of him, which he later determined was driven by plaintiff, proceeded into the intersection on the red traffic signal and struck defendant's vehicle as it turned northbound onto Grandview Avenue from eastbound Dublin Road. Although Gross admitted on cross-examination that he had no specific recollection as to whether he saw the collision or the red light first, he averred that he must have seen the red light first because he slowed his vehicle to stop at the red light prior to the time the collision occurred. A general verdict was returned for defendant after the jury assigned seventy-five percent negligence to plaintiff and twenty-five percent negligence to defendant. The trial court filed a judgment entry on February 23, 2000, dismissing plaintiff's complaint with prejudice. On March 9, 2000, the trial court filed a "Supplemental Judgment Entry" dismissing intervenor Community Insurance Company's complaint with prejudice. On March 13, 2000, plaintiff filed a motion for new trial, which was denied by the trial court by entry dated April 7, 2000. Plaintiff now appeals, asserting two assignments of error, as follows: [I]. The trial court erred by reading a prejudicial instruction to the jury in the middle of the trial and by not granting plaintiffs' motion for a mistrial. [II]. The trial court erred by not granting plaintiffs' motion for a new trial. By the first assignment of error, plaintiff contends that the trial court erred in giving a "prejudicial" instruction to the jury and in failing to grant their motion for mistrial. After plaintiff completed her testimony, defense counsel requested a short recess. Upon return from the recess, the court bailiff notified the court that a female juror had reported to the bailiff that defendant had dropped some notes to the jury in the ladies' restroom. According to the bailiff, after the juror reported the incident, the bailiff went to the restroom and found the notes in one of the stalls. The bailiff spoke to another female juror outside the restroom and ascertained that the notes were seen or read by at least two jurors. Since the tone of the notes suggested that they were written by plaintiff, but the juror indicated they were dropped by defendant, the court inquired of both counsel, and it was soon determined that the notes were written by plaintiff. The notes were made part of the record by the court and identified as "Court's Exhibit 1," "Court's Exhibit 2," and "Court's Exhibit 3." Exhibit 1 states: "To the jury[.] If I knew I had run a red light why would I go thru all this time + expense to bring this to trial[.]" Exhibit 2 states: "Odds are in my favor as to what happened. How many people see a lot of people run red lights? I've only seen 2 in my whole life. However, how often do people see other people coming towards them, + turn in front of them to turn left." Exhibit 3 states: "I knew the light was yellow + I saw her facing me. She didn't know what color the light was + she didn't see me she wasn't paying attention. A pause between the 3 cars indicates there was oncoming traffic going towards her. Are we going to be able to let the jury know why this case has gone to trial they might wonder why a simple traffic accident has necessitated a jury trial." Plaintiff's counsel explained that the notes must have accidentally fallen out of a notebook plaintiff carried with her. Counsel further contended that the notes were simply memoranda of points plaintiff wanted counsel to emphasize in his arguments to the jury. After lengthy off-the-record discussions relating to the notes, the court ultimately concluded that it would instruct the jury as to what had transpired with regard to the notes. Pursuant to the court's request, defense counsel submitted a proposed jury instruction. The instruction was made a part of the record by the court and identified as "Court's Exhibit 4." Exhibit 4 states: Ladies and gentlemen of the jury: It has been reported to the court that three notes, which I have here and which I now show you, were left in the ladies' restroom and discovered by one or more of the jury. These notes were written by the plaintiff, Carol Jackman and they are written about the trial and evidence. One is addressed "To the jury." The court instructs you to disregard these notes and cautions you that it is improper for anyone to attempt to contact you about the case in any way until it is over. The parties and counsel are similarly cautioned. The Court further instructs you that any contact that any of you may have had with these notes be totally disregarded. Plaintiff's counsel objected to the proposed instruction on several bases: that it identified the notes as being written by plaintiff; that it improperly implied that plaintiff intentionally left the notes in the restroom; and that it characterized the situation as an improper attempt by plaintiff to contact the jury. Counsel further argued that any instruction given by the court should indicate only that the notes were not written by defendant; that the jury was not to speculate as to who wrote the notes; and that the jury was not to consider the notes for any purpose. After the trial court determined that it would give the instruction proposed by defense counsel, plaintiff's counsel moved for a mistrial. After further discussions, the trial court denied the motion for mistrial and read the instruction over counsel's objections. The court then conducted a voir dire of each juror individually in the presence of counsel, inquiring whether he or she could follow the admonitions contained in the instruction and decide the case on the evidence as fair and impartial jurors. Each juror responded in the affirmative. Plaintiff contends that the instruction given by the trial court prejudiced her right to a fair trial. Specifically, plaintiff maintains that the instruction impugned Mrs. Jackman's character by improperly implying that she intentionally left the notes in the restroom in an attempt to influence the jury to decide the case in her favor. Plaintiff argues that the jury was irreparably tainted by the instruction such that a mistrial was necessitated. The criteria for determining such a question was discussed by the Ohio Supreme Court in State v. Wells (1992), 83 Ohio App.3d 147, in which it stated the following: "* * * In evaluating whether the declaration of a mistrial was proper in a particular case, this court has declined to apply inflexible standards, due to the infinite variety of circumstances in which a mistrial may arise. * * * This court has instead adopted an approach which grants great deference to the trial court's discretion in this area, in recognition of the fact that the trial judge is in the best position to determine whether the situation in his courtroom warrants the declaration of a mistrial. [Id. at 153, quoting State v. Glover (1988), 35 Ohio St.3d 18.] Where a trial court is exercising discretion, the test for finding an abuse of that discretion is more stringent than the test for finding an error of law it requires a finding that the court's decision was unreasonable, arbitrary or unconscionable. State ex rel. Leigh v. State Employment Relations Bd. (1996), 76 Ohio St.3d 143, 145. As was noted by the court in Apaydin v. Cleveland Clinic Foundation (1995), 105 Ohio App.3d 149, "[o]ne touchstone of a fair trial is an impartial trier of fact — `a jury capable and willing to decide the case solely on the evidence before it.'" Id., citing McDonough Power Equip., Inc. v. Greenwood (1984), 464 U.S. 548, 104 S.Ct. 845. It is true that the trial court has the discretion, in most cases, to use measures such as cautionary instructions, which the jury promises to follow, to avoid the necessity of a mistrial. However, the instruction must be fair to both sides and not add to prejudice against either party. The court's instruction in this case failed to accomplish that goal. The trial court's instruction to the jury irrevocably impugned the credibility of plaintiff. The primary issue in this case is whether plaintiff's version or defendant's version of the way the accident occurred is more credible. There is no evidence that plaintiff deliberately dropped the notes in the restroom, intending the jury to read them and be influenced by them. Yet, the trial court's instruction leads the jury to think so. First, plaintiff is mentioned as the author, following which the court specifically says one of the notes was addressed "to the jury." This reference clearly indicates a wrongful intent to violate all rules of fairness or decency to improperly influence the jury. The court compounds the problem by then reminding them (and counsel) that such contact is improper. A neutral and fair instruction could have been formulated by telling the jury that the notes were not intended for them but were accidentally dropped and to disregard them. There is no basis to infer intentional dropping of the notes, as the only one who has knowledge of her intent is plaintiff, and her explanation is reasonable. If a neutral instruction had been formulated, there would be no need for a mistrial. Once the unfair instruction was given, a mistrial was required, since misconduct of plaintiff as implied by the prejudicial instruction cannot be erased from the mind of even a conscientious jury as a subjective factor in deciding credibility. In some instances, instructions to disregard and promises to do so are insufficient to cure the problem. This was one of those instances. Furthermore, the instruction was only to ignore the contents of the notes, not the character of a party stooping to that behavior. The fact that plaintiff had some backing in the jury as to percentage of fault does not prove that the jury's decision was not affected by the instruction concerning the notes. If anything, it leads one to the opposite conclusion, which is that the issue of fault was close enough to be debatable and vitally affected by an inference of bad character of plaintiff. Plaintiff's first assignment of error is sustained. By the second assignment of error, plaintiff argues that the trial court erred in denying their motion for new trial. Civ.R. 59(A) permits a trial court to grant a new trial upon the motion of either party. We need not discuss the second assignment of error since a new trial is mandated by our disposition of the first assignment of error. However, as relevant, to the instant case, Civ.R. 59(A) provides: Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: (1) Irregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial; (2) Misconduct of the jury or prevailing party[.] The decision whether to grant or deny a motion for a new trial is left to the discretion of the trial court. Dawson v. Metrohealth Ctr. (1995), 104 Ohio App.3d 654, 656. Consequently, this court will not reverse a trial court's decision on this issue absent an abuse of discretion; i.e., a showing that the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Id. Plaintiff argues that the discovery of the notes and the subsequent improper treatment of the incident by the court, i.e., giving a prejudicial jury instruction and failing to grant a mistrial, constitutes an irregularity in the proceedings which prevented a fair trial. As we have held in our first assignment of error, that contention is well-taken and constitutes an error by which plaintiff was prevented from having a fair trial, thus, also justifying granting of a new trial following the defense verdict. Plaintiff also points to two remarks made by counsel for defendant during closing argument as being prejudicial and necessitating a new trial. Initially, we note that "great latitude is afforded counsel in the presentation of closing argument to the jury." Pang v. Minch (1990), 53 Ohio St.3d 186, paragraph two of the syllabus. Moreover, a trial court's rulings with respect to closing argument will not be reversed absent an abuse of discretion. Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679, 688. Plaintiff first challenges the following statement by defense counsel: "This case is a red light case. That's what the Court told you from the very beginning." (Tr. 214.) Counsel's statement referenced a remark made by the court in voir dire to the effect that cases such as the one before it were sometimes referred to by attorneys as "red light" cases. Plaintiff argues that defense counsel's reference to the court's remark constituted a blatant attempt to coax the jury into believing that the trial court was of the opinion that plaintiff had run a red light and the jury should be of the same opinion. Since the case did involve, as its primary issue, the question of who had the light entitling proceeding, either straight through or on a left turn, the statement was not prejudicial. The second statement challenged by plaintiff is, as follows: One of the things that you are going to receive is an instruction regarding red light. I ask you to read this instruction when you're back there, pay attention to it and what it has to say. I won't read it all to you because I know you all know how to read. What it says is the plaintiff ran a red light. She is negligent as a matter of law. That's evidence, the end of that, the conclusion and that's in that instruction. * * * [Tr. 4.] Plaintiff contends that defense counsel's statement that the instructions said that "plaintiff ran a red light" was false and was intended to improperly convince the jury that the court believed defendant's version of the facts and the legal conclusions derived therefrom. In Snyder v. Stanford (1968), 15 Ohio St.2d 31, at 35, the Ohio Supreme Court stated: In the instant case, however, assuming the statements of appellees' counsel were objectionable, appellant failed, at the time the statements were made, to object or otherwise apprise the court of the allegedly prejudicial effect of the comments so that any curative action warranted could have been taken by the trial court. Having failed to make proper and timely objections, appellant is precluded from relying on the alleged misconduct of opposing counsel as a basis for reversal of the judgment. * * *. Defense counsel's statements in closing argument about the court's instruction were improper and objectionable, but plaintiff failed to timely object or to request a curative instruction which could have rectified any problems arising from the improper statement. Pursuant to Snyder, plaintiff has waived any error with regard to defense counsel's closing argument as she failed to object at trial. See, also, Jones v. Olcese (1991), 75 Ohio App.3d 34. However, for reasons previously stated, plaintiff's second assignment of error is sustained. For the foregoing reasons, both of plaintiff's assignments of error are sustained, the judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law, consistent with this opinion. ______________ McCORMAC, J. DESHLER, J., concurs. PETREE, J., concurs in part; dissents in part. McCORMAC, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution. 1 Although the caption of this case correctly reads "plaintiffs"; we will continue to refer to "plaintiff."

2016-07-06 06:36:11.497528+00

OPINION {¶ 1} Appellant Linda Howard appeals from the Licking County Probate Court's June 26, 2002, Judgment Entries appointing Attorney Karen J. Bunning as Guardian for Edward M. Keller and Betty Keller. Appellee is Attorney Karen J. Bunning, Guardian of Edward M. Keller and Betty Keller. STATEMENT OF THE FACTS AND CASE {¶ 2} The instant action was initiated when appellant Linda Howard [hereinafter appellant] filed applications for the appointment of a guardian for her father, Edward M. Keller, and her step-mother Betty Keller, in the Licking County Probate Court.1 Appellant sought the appointment of herself as guardian and felt that appellant's half-sister Marlena Friend had alienated the Kellers from appellant, and had begun to exert influence over the Kellers with respect to their financial affairs. Subsequently, Marlena Friend [hereinafter Friend] also filed applications to be appointed guardian for the Kellers and Notices of Intent to Object to the appointment of Linda Howard as guardian.2 {¶ 3} Ultimately, a hearing on the appointment of a guardian was held on June 7, 2002. Appellant was present and represented by counsel. Mrs. Keller was also present at the hearing, however, upon recommendation of Mr. Keller's guardian ad litem, Mr. Keller was not present. However, Mr. Keller's guardian ad litem was present. {¶ 4} At the conclusion of the hearing, Attorney Karen J. Bunning was appointed Guardian for both Mr. and Mrs. Keller. It is from these appointments of Guardian that appellant appeals, raising the following assignment of error: {¶ 5} "The trial court committed error prejudicial to the appellant, abusing its discretion by appointing a Guardian other than appellant for appellant's father and step-mother." {¶ 6} In the sole assignment of error, appellant argues that the trial court abused its discretion when it appointed a guardian other than appellant for appellant's father and step-mother. We disagree. {¶ 7} A trial court is vested with broad discretion in appointing guardians. The standard of review for such matters is to determine whether the trial court abused its discretion in reaching its judgment. Absent a clear abuse of that discretion, the lower court's decision should not be reversed. Mobberly v. Hendricks (1994), 98 Ohio App.3d 839,845, 649 N.E.2d 1247. An abuse of discretion implies more than an error of law or judgment. Rather, abuse of discretion suggests that the trial court acted in an unreasonable, arbitrary, or unconscionable manner.Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. {¶ 8} We find the trial court did not abuse its discretion in appointing Attorney Bunning as guardian. First, the trial court's appointment of Attorney Bunning as guardian was with the consent of the applicants, including appellant.3 Second, Attorney J. Michaels Nicks, guardian ad litem for the Kellers, recommended that Attorney Bunning be appointed as the guardian of Mr. and Mrs. Keller. Third, Attorney Bunning appears competent to serve as guardian. The trial court described Attorney Bunning as follows: "Miss Bunning is a long-time member of this community. She's been an attorney for 27 years. She has had extensive experience in working with the elderly. She is what we would refer to as, quite frankly, a neutrally, detached, objective person. Okay. She has no axe to grind with anyone. She's especially competent in these matters." Transcript of Proceedings, pg. 18. No one attending the hearing expressed any concern over Attorney Bunning's ability to serve as guardian. {¶ 9} Upon review of the record, we find that the trial court did not abuse its discretion in appointing Attorney Bunning as guardian for Mr. and Mrs. Keller. Appellant's sole assignment of error is overruled. {¶ 10} The judgment of the Licking County Court of Common Pleas, Probate Division, is affirmed. By: Edwards, J., Hoffman, P.J. and Boggins, J. concur. In Re: Appt. of Guardian — Abuse of discretion. 1 Appellant filed two separate applications in the Probate Court which were assigned two different case numbers. The two applications were then considered at one hearing held on June 7, 2002. Two separate appeals were taken from the appointments of guardian. However, appellant and appellees filed identical briefs in the appeals. Because of the interrelationship of the cases and facts, the two appeals will be considered together in this opinion. 2 Friend and appellant have the same mother but different fathers. Thus, Friend is not biologically related to either Edward or Betty Keller. 3 The record does not reflect any objection to the appointment of Attorney Bunning as guardian but does reflect appellant's counsel's acknowledgement that appellant consented to the appointment. In appellant's brief, appellant asserts that at the hearing, she attempted to get her counsel to object to the absence of Mr. Keller and the appointment of Attorney Bunning as guardian. However, any such attempts are not on the record before this court. Since this court's review is limited to the record before this court, this court may not consider appellant's alleged objections to Attorney Bunning's appointment as guardian. See State v. Kelley (1991), 57 Ohio St.3d 127, 130,566 N.E.2d 658; State v. Ishmail (1978), 54 Ohio St.2d 402, 403-404,377 N.E.2d 500.

2016-07-06 06:36:08.631031+00

Per Curiam

This appeal was filed, briefed and argued as an accelerated appeal pursuant to Local Rule 25 of this court. The appellant timely appeals the decision of the trial court granting the appellee's motion to enforce an oral settlement agreement entered into by the parties. In compliance with App.R. 11.1, it is the opinion of this court that the evidence in the record reflects that a hearing was held prior to the signing of the journal entry and that the court resolved the factual dispute concerning the existence of terms of the settlement agreement. For the reasons that follow, we affirm the trial court's granting of the appellee's motion to enforce the settlement agreement. This action involves a law suit filed by the appellee, Barbara Palmer, alleging that the appellant, Kaiser Foundation Health, violated her rights to be recalled for employment after an extended layoff period. The matter was *Page 142 referred to arbitration, which was cancelled after the parties entered into an oral agreement to settle. Consequently, the appellant prepared a release to be signed by the appellee. On October 10, 1990, the appellee filed a motion with the trial court alleging that the proposed release, submitted by the appellant, was not the settlement agreement entered into by the parties during their telephone conference. Apparently, the release was correct except for the inclusion of the additional terms for non-disclosure and non-application for future employment, which appellee alleges was not a part of the agreement. The appellant countered and requested that the court enforce its release, which included the additional terms. The trial court set the matter for a hearing on December 5, 1990, as evidenced by its journal entry. Both parties appeared for the hearing, which was conducted in chambers without a court reporter. The court found that the articulated terms in the settlement agreement were not in dispute and were binding, which effectively denied the appellant's request to include the additional clauses. The appellant was ordered to pay the amount orally agreed and the appellee was ordered to release the appellant of any and all claims, past and future. The court's order was signed and journalized on December 14, 1990. The appellant did not object to the journal entry pursuant to C.P.Sup.R. 24, which was prepared by the appellee's attorney and submitted to the court for approval. However, the appellant did appeal and assigned the following error: "The trial court erred in failing to hold an evidentiary hearing to determine the existence and terms of the settlement agreement and by entering judgment finding a settlement agreement where a factual dispute existed as to the terms." The hearing, which was held in chambers, was not recorded and the appellant did not seek to settle the record pursuant to App.R. 9. Therefore, the record on appeal consists of the motions filed by both parties, the journal entry scheduling the hearing for December 5, 1990, and the journal entry filed by the trial court on December 14, 1990, which entry consists of the trial court's finding that there was a binding contract to settle the lawsuit. Nevertheless, the appellant argues that the in-chambers hearing, held by the court, was not an evidentiary hearing as contemplated in the case of Mack v. Polson RubberCo. (1984), 14 Ohio St.3d 34, 14 OBR 335, 470 N.E.2d 902. In Mack, supra, the court held that an evidentiary hearing is required when a factual dispute concerning the existence or the terms of a settlement agreement is at issue. In the case subjudice, it appears from the record that *Page 143 a hearing was held. The witnesses or parties to the evidence surrounding the oral settlement agreement were the lawyers and they were present in chambers at the hearing. This kind of informal hearing is not improper when the evidentiary witnesses are the lawyers. In this case there was an extrajudicial settlement agreement. The trial court was not aware of the terms of the agreement until the hearing on December 5, 1990. Therefore, the sole question before the court was whether the parties entered into a binding contract to settle the lawsuit. The trial court found that they had an agreement and granted the appellee's motion, thereby holding that the parties had an enforceable settlement agreement. Bolden v. Young (1982), 8 Ohio App.3d 36, 8 OBR 39,455 N.E.2d 1316. Therefore, it is the position of this court that it will presume regularity rather than irregularity in the trial court proceeding, absent an indication to the contrary. Accordingly, this court finds that the trial court properly granted the appellee's motion to enforce the settlement agreement. Pursuant to App.R. 23, the court finds that this appeal is frivolous and that there was no reasonable cause for the appeal. The appellee may submit evidence by way of affidavit regarding the costs, including attorney fees incurred by her in this appeal, within seven days of the judgment entry herein. The appellant may submit counter-affidavits concerning the reasonable attorney fees and costs to be awarded within fourteen days after judgment is entered herein, following which the court will make a finding of costs, including attorney fees, which will be assessed in favor of appellee against the appellant. Judgment affirmed. FRANCIS E. SWEENEY, P.J., BLACKMON and HARPER, JJ., concur. *Page 144

2016-07-06 06:36:08.736657+00

Doan

* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was not allowed in (1999), 85 Ohio St.3d 1406,706 N.E.2d 788. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 362 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 363 Defendant-appellant Edward Smith appeals his conviction of murder. I. FACTS AND PROCEEDINGS On January 9, 1997, Smith was charged with the murder of Eugene Jenkins. A gun specification was included in the indictment. The evidence presented by the state at trial indicated that on December 27, 1996, at approximately 8:30 a.m., Michelle Thomas and her friend Cheryl Grissom discovered Jenkins slumped over and apparently unconscious in the driver's seat of his truck, which was parked at the side of the road on the 500 block of Van Buren, near the home of Grissom. After finding Jenkins, Thomas and Grissom placed an emergency call; the Lincoln Heights police responded to the scene. It was then learned that Jenkins had suffered two gunshot wounds to the chest, from which he later died. *Page 364 Thomas informed the police that at approximately 8:15 a.m., she had been walking to Grissom's home when she had heard a indistinguishable sound, followed by the slamming of a door. As she then rounded the corner, a man ran past her in the opposite direction. Thomas described the man as being in his late forties, black, slightly taller than her height of five feet, four inches, with flared nostrils and a full black and gray beard, wearing glasses, a black jacket and baseball cap, and carrying a bundle of clothing under his arm. Based on this identification, police assembled a photo array of six persons, one of whom was Smith. After viewing the array, Thomas positively identified Smith as the man she had seen. In addition, Jenkins's son informed police that he had also observed Smith in the vicinity of the murder scene that morning; he stated that he had seen Smith, in his truck, in the driveway next to his father's barbershop. Furthermore, Gregory White, an acquaintance of Jenkins, stated that he had seen Jenkins sometime between 7:30 and 8:00. that morning driving his truck. According to White, Jenkins appeared to be arguing with the passenger in the truck, whom White described as having a beard and glasses. Meanwhile, at the scene of the murder, police discovered a bloody key ring on the seat of the truck and an audiocassette on the ground directly outside the truck. It was later discovered that blood on the key ring was consistent with Jenkins's blood. In addition, analysis of the audiocassette revealed a recording containing Smith's voice. At approximately 9:15 a.m., agent Randall Rozier arrived at the scene and became involved in the investigation. Sometime between 10:00 and 11:00 a.m., Rozier went to the home of James Spikner, an employee of Smith's who had been involved with Smith in performing a recent masonry construction project on Jenkins's home. Both Spikner and Jenkins's wife stated that Jenkins and Smith had argued over the amount of money that Smith was due for his masonry work. Furthermore, Spikner recounted that Smith was known to carry a cassette recorder in his chest pocket and would use it to record discussions involving business disputes. In addition, Spikner agreed to assist Rozier in locating Smith. After being unable to locate Smith at his home, Spikner indicated that Smith may have been at a storage unit located in Roselawn, which he used to store equipment for his construction projects. Once at the storage unit, with Rozier out of sight, Spikner raised the door and saw Smith's truck parked inside. Smith, who had been lying in the bed of the truck, stood up and spoke briefly with Spikner, indicating that he was planning to leave town. As Rozier and Spikner drove away, they observed Smith "shoot out" of the storage unit in his truck. Spikner informed *Page 365 Rozier that he had never known Smith to park a vehicle inside the' storage unit prior to that day. At approximately 11:30 a.m., Smith visited an auto pawn shop and attempted to sell two of the dump trucks he used in his construction business; Smith explained to the pawn dealer that he was planning to leave town. Smith and the pawn dealer agreed that Smith would return later in the day to complete the deal. At approximately 2:30 p.m., Smith encountered Lee Ferguson at Turfway Park, in Kentucky. Ferguson and Smith were acquainted and often saw each other at Turfway Park while betting on horses. Smith asked Ferguson whether he could have a ride back to Cincinnati; Ferguson agreed. At approximately 3:45 p.m., they left Turfway Park and headed back to Cincinnati. Smith directed Ferguson to stop at the Roselawn storage unit, where he retrieved two suitcases. He put the suitcases in the back of Ferguson's van and directed Ferguson to drop him off at the auto pawn shop. While en route, Smith asked Ferguson if he would like to buy his truck. He explained to Ferguson that he no longer needed the truck because he was planning to leave town. At approximately 4:30 p.m., Smith arrived at the auto pawn shop, where the police apprehended him. The police then retrieved his suitcases from Ferguson's van. Analysis later revealed that clothing within the suitcases contained gunshot residue. In addition, the police subsequently located Smith's truck in the parking lot at Turfway Park. One of the keys on the key ring that had been found at the scene of the murder was determined to operate the ignition of Smith's truck. The murder weapon was never recovered. After being indicted for the murder of Jenkins, Smith moved to suppress the photo identification and in-court identification by Thomas, arguing that the photo array was unduly suggestive. The trial court denied this motion. Following a jury trial, Smith was found guilty of murder with a gun specification. The trial court sentenced him to serve fifteen years to life, plus three years' actual incarceration on the gun specification. Smith then moved for a new trial and for a judgment of acquittal under Crim. R. 29 (A); these motions were also denied. On appeal, Smith brings seven assignments of error. Because we sustain Smith's first and second assignments of error, we reverse the trial court's judgment. II. FIRST AND SECOND ASSIGNMENTS In his first and second assignments of error, Smith argues that the trial court erred in overruling his motions for a mistrial and a new trial because the prosecuting attorneys, by their misconduct during closing argument, violated his constitutional rights by depriving him of a fair trial. *Page 366 Generally, the conduct of a prosecuting attorney cannot be made a ground of error unless the conduct deprived the defendant of a fair trial.1 Under Ohio law, the test for whether prosecutors misconduct may serve as the basis for reversing a conviction is first whether the prosecutor's remarks were improper, and, if so, whether they prejudicially affected substantial rights of the accused.2 Smith complains of four instances of misconduct, all of which occurred during closing argument. We examine each of these alleged instances in turn,3 keeping in mind that despicable behavior and terrible crimes do not preclude the duty to zealously protect the substantial constitutional rights of those accused of such offenses. We observe that the senselessness, cruelty, and abhorrence of crimes periodically incenses even experienced and capable prosecutors beyond constitutional and professional control. While this is understandable, it should not be permitted to denigrate the cherished constitutional requirement of fair trial. We take no pleasure in applying the standard in such cases, and do so not as zealots, but pursuant to our sworn duty to uphold constitutional protections. A. ALIBI COMMENT Smith takes issue with the prosecutor's comment during closing argument regarding his lack of an alibi: "Let's think about what you have heard in this case and the evidence that you have heard. And I have a list * * * first of all, we have a lady who made a very good identification. * * * "But what happens then, the police start to investigate, and they find another man who happens to have seen a person who looked like this person with the victim minutes before the victim was killed. The odds go up a little bit, don't they? Get a little better. * * * "And then we have item number three. Mr. White says Mr. Jenkins wouldn't pick anybody up in the truck unless it was about business, a business partner, businessman, business. Odds go up a little bit more. "Then the witness, and this is pretty important, because thewitness has picked somebody who doesn't have an alibi." (Emphasis added.) *Page 367 Defense counsel immediately objected to this comment; the objection was sustained by the trial court. At sidebar, defense counsel moved for a mistrial, arguing that the prosecutor had improperly commented on Smith's failure to testify and had improperly shifted the burden of proof. The trial court denied defense counsel's motion for a mistrial and then brought the jury back without giving any curative instruction. Initially, we must determine whether the remark in question was, in fact, a comment adversely directed to Smith's decision not to testify. Such comments are, of course, prohibited by the Fifth Amendment.4 The answer to this question, under the facts of this case, is that the prosecutor's alibi comment was adversely directed to Smith's decision not to testify. This conclusion is required because the prosecutor knew that Smith had told the police that he could not corroborate an alibi and also knew that Smith had not filed a notice of alibi, and thus had nothing to offer as testimony in his defense against evidence of his guilt. The state argues that the comment was meant to say that the state's evidence was strong, but that is not what was said. The prosecutor said that "somebody," i.e., the defendant Smith, "doesn't have an alibi." The law derives intention from the results of words or actions. It is natural to conclude that the intention of such language was to underscore Smith's failure to testify and his silence as to an alibi. A reasonable juror could conclude that if Smith had an alibi he would not remain silent. The words spoken have a plain meaning, and we cannot speculate that they were intended to mean something not said. We further determine that the alibi comment may very well have created the belief in the minds of the jury that the defense had a burden of proof on the matter of alibi, particularly with no curative instructive from the trial judge. B. DENIGRATION OF DEFENSE COUNSEL The second instance of prosecutorial misconduct of which Smith complains relates to the prosecutor's denigration of defense counsel. The following comments were made by the prosecutor during closing argument: "Mr. Burlew is a very nice man. He's one of the best criminal lawyers in Cincinnati. And I say that and I mean it, and I respect him greatly. And he's really, really good at making, andmaybe you've heard the term before, chicken salad out of chicken— fill in the blank. Maybe you've heard it before. Maybe you haven't. And he's done a superb job at doing that. Okay? *Page 368 "And I can't emphasize to you enough, because he got up here at closing argument and he was arguing that I was going to attack him, and we're going to attack the lawyer because we don't have any evidence, so on and so forth; and I apologize to him ahead of time because I am going to attack him. I have to. He's put me in the position where I can do nothing else, because he has triedthe whole case not by evidence, but by his speeches andmisrepresentations." (Emphasis added.) The following then took place in the jury's presence: defense counsel immediately stated to the trial court, "I demand an apology * * * [a]nd I demand a reprimand from you to this jury certifying to them that I have violated no canon, none of your admonitions in this case"; the trial court suggested that an apology was appropriate; the apology was made by the prosecutor; it was accepted by defense counsel; and the trial court then admonished the prosecutor, stating that "we're going to turn our attention to the evidence in this case and not upon personal nature of counsels; we are, aren't we?" As this court stated in State v. Hart,,5 our adversarial system permits and even encourages prosecutors to argue fervently for conviction. Accordingly, courts have consistently recognized that the prosecution is entitled to wide latitude and freedom of expression during summation in discussing what the evidence has shown and what reasonable inferences may be drawn therefrom.6 Thus, the prosecutor was clearly entitled in this case to comment on the testimony and to suggest the conclusions to be drawn from it.7 He was also free to highlight the relative strength of the prosecution's case and relative weakness of the defense. The latitude afforded the prosecution does not, however, extend so far as to permit the prosecution to denigrate the role of defense counsel.8 The prosecutor's comments in this case, in effect, suggested to the jury that defense counsel had intentionally deceived the jury by engaging in misrepresentations. As we stated in Hart: "A prosecutor may argue and argue ardently that the evidence does not support the conclusion postulated by defense counsel. A prosecutor may not, however, denigrate the role of defense counsel by injecting his personal frustration *Page 369 with defense tactics. * * * * * * The prosecutor was not entitled to employ * * * argument to denigrate the role of defense counsel and to insinuate to the jury that [the defendant] and his counsel, by exercising their right to suggest what conclusions may or may not have been drawn from the evidence found at trial, were seeking to hide the truth."9 We cannot subscribe to the state's argued exculpation of such conduct. Rather, we agree with defense counsel that this personal attack was completely baseless and improper, and constituted error. Furthermore, it had the dangerous potential of tainting the jury's view of Smith's defense. Aside from the crude analogy pertaining to the ingredients of chicken salad, which was inappropriate to the dignity of trial, we are intuitively and legally repulsed by the prosecutor's purposeful attack statement that defense counsel personally tried the case by misrepresentations. The quotation from State v. Hartsupra, applies to the matter sub judice like a poured mold; this admitted personal attack was completely improper and rises to the level of constitutional error. Further, under the facts of this case, prejudice to a fair trial is not removed by a court-extracted apology, evidence of guilt, and a court instruction that statements made by counsel are not evidence. Nor can we subscribe to the argument that the trial court tacitly acknowledged that there was no misconduct. Why would defense counsel and the trial judge demand an apology, but for misconduct? The effect on the jury of this personal denigrating attack by the prosecution upon defense counsel, alleging misrepresentations, was akin to invasive radioactive fallout that could not be totally eradicated. C. BAD CHARACTER Third, Smith contends that he was prejudiced by the following statement made by the prosecutor during closing argument: "You heard it all. The guy she picks, all of a sudden being desperate for money, decides to take his car to Kentucky and abandon it. Why did he do that? He wants to leave the car in Kentucky, he needs cash, he leaves the car in Kentucky. And then the same guy that she picks tries to sell it for 500 bucks to Ferguson. "* * * "So one minute he's a local long-time businessman, and then the next minute the guy that she sees, he's going to leave town, is trying to get some quick cash, he's trying to get three grand above his pawn from the pawning place, he's desperate for money, he doesn't even know where he's going. And that's the *Page 370 same guy that she picked out of the lineup. The odds have gotten greater and greater and greater and greater. "She — the guy that she picks has got his bags packed, he's ready to go. He packs his bags and he puts them in a van. When he's arrested, he's ready to go. Is that a coincidence? Arethese things all a coincidence that she picked the wrong person,and just so happened to pick a person that has all of theseindicia of criminal behavior running around in his life? Is that an accident? A coincidence?" (Emphasis added.) According to Smith, this statement was an attempt to suggest to the jury that he had a bad or criminal character. As Smith correctly contends, it is improper for a prosecutor to encourage the jury in closing argument to convict a defendant on the basis of his bad character.10 However, with the instant statement viewed in its appropriate context, it is clear that the prosecutor was not insinuating that Smith had a bad or criminal character. Rather, the comment was a reference to evidence presented at trial relating to Smith's activities on the day of the murder. As we have stated previously in this decision, it is entirely proper for the prosecutor to comment on the evidence and to suggest the conclusions that may be drawn therefrom. In our opinion, that is all that the prosecutor did in this instance. Accordingly, the prosecutor committed no error in making the statement, and the trial court properly overruled defense counsel's objection. D. REFERENCE TO MATERIAL OUTSIDE THE RECORD The final instance of prosecutorial misconduct cited by Smith relates to the prosecutor's quotation, during closing argument, from a portion of the transcript of the pretrial suppression hearing, which had not been entered into evidence at trial. Smith argues that these references to material outside the record were in violation of his due process rights and necessitate the reversal of his conviction. We disagree. It is a prosecutor's duty in closing argument to avoid efforts to obtain a conviction by going beyond the evidence that has been presented to the jury.11 Therefore, references by a prosecutor during closing argument to material outside the record normally constitute error and may serve as the basis for reversal when the error is prejudicial to the defendant. Under the unique facts *Page 371 of this case, however, we are unable to conclude that the prosecutor's remarks prejudiced Smith. A pretrial hearing had been held on Smith's motion to suppress Thomas's identification testimony. During this hearing, defense counsel asked Thomas whether the police had indicated to her, prior to her viewing of the photo array, that a suspect had been arrested. Thomas answered in the negative. At trial, while cross-examining Thomas, defense counsel briefly referred to this portion of the transcript from the suppression hearing in an effort to impeach Thomas by demonstrating that her statements at trial were in conflict with her prior statements. Our reading of the record leads us to conclude, however, that Thomas's, statements at trial were not inconsistent with her pretrial statements. In both instances, she stated that the police had not informed her that they had a suspect in detention before she viewed the photo array. During his closing argument, defense counsel referred back to his effort to impeach Thomas on cross-examination. In summarizing this exchange, defense counsel left the impression that, on cross-examination, Thomas had contradicted her prior testimony by stating that police did, in fact, inform her that a suspect was in custody before she viewed the photo array. In our opinion, this summary mischaracterized the record. Furthermore, the record demonstrates that the prosecutor's subsequent references to the pretrial transcript were solely for the purpose of correcting defense counsel's mischaracterization. Under these circumstances, we are unable to conclude that these references by the prosecutor deprived Smith of a fair trial. III. THIRD ASSIGNMENT In his third assignment of error, Smith asserts that the trial court erred by overruling his motion to suppress his pretrial identification and, consequently, his in-court identification by Thomas. This assignment is not well taken. Before identification testimony may be suppressed, the trial court must find that the procedure employed was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.12 Reliability is the linchpin in determining the admissibility of identification testimony, and even if the identification procedure itself is suggestive, so long as the challenged identification itself is reliable, it is admissible.13 Smith's challenge to the identification procedure employed below falls into two categories. First, Smith contends that the photo array was unduly suggestive *Page 372 because Smith's photo was the only one of the six depicting a man in his forties with a mixed gray and black beard. We have reviewed the photo array, however, and conclude that it was not impermissibly suggestive. Smith's second challenge to the identification procedure concerns Thomas's ability to identify the suspect. Specifically, Smith asserts that the identification was unreliable because of Thomas's limited opportunity to view the suspect. The factors to be considered in assessing the reliability of an identification include the opportunity of the witness to view the suspect, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated by the witness at confrontation, and the length of time between the sighting and the confrontation.14 The record in this matter demonstrates that Thomas had the opportunity to observe Smith as he ran past her in broad daylight. Furthermore, she provided police with a detailed description that proved to be highly accurate with the possible exception of her underestimation of Smith's height. Finally, Thomas observed the photo array within hours of the, sighting and demonstrated a high degree of certainty when she selected Smith as the person that she had sighted. Thus, even if we had concluded that the photo array was suggestive, taking into consideration the totality of the circumstances in this case, we cannot say that Thomas's identification was unreliable. Accordingly, Smith's third assignment of error is overruled. IV. FOURTH AND SIXTH ASSIGNMENTS In his fourth and sixth assignments of error, Smith challenges the sufficiency of the evidence supporting his conviction, as well as the trial court's denial of his Crim. R. 29 (A) motion for acquittal. In support of these two assignments, Smith puts forth one argument: that the state failed to prove the identity of the perpetrator beyond a reasonable doubt. A. SUFFICIENCY OF THE EVIDENCE Whether evidence is sufficient to support a conviction is a question of law.15 When considering whether the evidence was sufficient to support a conviction, an appellate court must review the evidence in the light most favorable to the state, and the question to be answered is whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.16 *Page 373 After reviewing the record, we conclude that the state's evidence, including Thomas's identification testimony, if believed (as it apparently was), provided a sufficient basis for concluding that Smith was the perpetrator. Accordingly, Smith's assertion that the state offered insufficient evidence to prove the element of identity beyond a reasonable doubt is without merit. Thus, his fourth assignment of error is overruled. B. MOTION FOR ACQUITTAL Because a Crim. R. 29 (A) motion for acquittal challenges the sufficiency of the evidence adduced at trial in much the same manner as does an assertion that there was insufficient evidence to sustain a conviction,17 the foregoing resolution of Smith's challenge to the sufficiency of the evidence is also dispositive of this issue. Accordingly, we conclude that the trial court did not err in refusing to grant Smith's motion for acquittal. Thus, we overrule his sixth assignment of error. V. CONCLUSION Our resolution of the foregoing assignments of error renders Smith's remaining assignments of error, the fifth and the seventh, moot. Therefore, we do not address them. We reverse the judgment of the trial court and remand this cause for further proceedings. Judgment reversed and cause remanded. MARIANNA BROWN BETTMAN, J., concurs. SUNDERMANN, P.J., dissents. 1 State v. Maurer (1984), 15 Ohio St.3d 239, 266, 15 OBR 379,402-403, 473 N.E.2d 768, 793. 2 State v. Lott (1990), 51 Ohio St.3d 160, 165,555 N.E.2d 293, 300; State v. Hart (1994), 94 Ohio App.3d 665, 671,641 N.E.2d 755, 759. 3 While we have reviewed these alleged instances of prosecutorial misconduct in the context of the entire case, for convenience we present our analysis of each of these instances separately. 4 Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229,14 L.Ed.2d 106; State v. Clark (1991), 74 Ohio App.3d 151, 156,598 N.E.2d 740, 743. 5 94 Ohio App.3d at 671, 641 N.E.2d at 759. 6 Id., citing State v. Stephens (1970), 24 Ohio St.2d 76,82, 53 O.O.2d 182, 185, 263 N.E.2d 773, 777. 7 Maurer, supra. 8 Hart, supra; State v. Keenan (1993), 66 Ohio 5t.3d 402, 406, 613 N.E.2d 203, 207. 9 94 Ohio App.3d at 673-674, 641 N.E.2d 755, 760. 10 State v. Hudson (1993), 86 Ohio App.3d 113, 117,619 N.E.2d 1190, 1192. 11 State v. Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317, 318-319, 470 N.E.2d 883, 885. 12 Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d.401. 13 Manson v. Brathwaite (1977), 432 U.s. 98, 97 S.Ct. 2243,53 L.Ed.2d 140. 14 Neil, supra. 15 State v. Thompkins (1997), 78 Ohio St.3d 380, 386,678 N.E.2d 541, 546. 16 Id.; State v. Jenks (1991), 61 Ohio St.3d 259,574 N.E.2d 492, paragraph two of the syllabus. 17 When a motion to acquit under Crim. R. 29 (A) has been overruled by a trial court, the question for a reviewing court is whether, viewing the evidence in the light most favorable to the state, a reasonable mind might fairly find each element of the offense proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, 9 O.O.3d 401, 381 N.E.2d 184, syllabus.

2016-07-06 06:36:09.37016+00

Petree

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 429 OPINION On November 19, 1998, plaintiff, United Food and Commercial Workers Union, Local 1059 AFL-CIO ("United"), filed a complaint against the Pillsbury Company ("Pillsbury"), asserting claims for breach of contract, promissory estoppel, and unjust enrichment. On April 23, 1999, the trial court dismissed that complaint finding the claims raised therein were preempted by federal law and barred by *Page 430 the doctrine of res judicata. United now appeals raising the following two assignments of error: 1. The Court of Common Pleas erroneously held that Plaintiff's claims are preempted by federal law. 2. The Court of Common Pleas erroneously held that Plaintiff's claims are barred by the doctrine of res judicata. This dispute is the result of an alleged agreement between United and Pillsbury, whereby each was to pay one-half of the cost of meeting and catering expenses incurred while the parties negotiated a new collective bargaining agreement in October 1996. United contends that Pillsbury breached that agreement, resulting in damages in the amount of $3,251.35. On December 21, 1998, Pillsbury moved to dismiss United's complaint on the basis: (1) that federal law applies to United's claims such that the trial court lacks jurisdiction over the subject matter involved; and (2) that United failed to state a claim upon which relief may be granted. Generally speaking, a Civ.R. 12(B) motion to dismiss is a procedural motion designed to test the sufficiency of a complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545. The relevant inquiry when ruling upon a Civ.R. 12(B)(1) motion to dismiss for lack of subject matter jurisdiction is whether the plaintiff has set forth any cause of action which the court has authority to decide. Shockey v. Fouty (1995), 106 Ohio App.3d 420. See, also, McHenry v. Indus. Comm. (1990), 68 Ohio App.3d 56. When making this determination, the court is not confined to the allegations of the complaint, but may consider relevant extraneous material without converting the motion into a motion for summary judgment. Southgate DevelopmentCorp. v. Columbia Gas Transm. Corp. (1976), 48 Ohio St.2d 211. On the other hand, the standard to be applied when determining whether or not to dismiss a complaint pursuant to Civ.R. 12(B)(6) is set forth in O'Brien v. University CommunityTenants Union (1975), 42 Ohio St.2d 242. Therein, the Ohio Supreme Court stated that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 245, quoting Conley v.Gibson (1957), 355 U.S. 41, 45, 78 S.Ct. 99, 101. Specifically, a court considering a Civ.R. 12(B)(6) motion to dismiss is limited to the face of the complaint. From that, it must appear beyond doubt that the plaintiff can prove no set of facts entitling him or her to recovery. Byrd v. Faber (1991), 57 Ohio St.3d 56, 60; and Greeley v. Miami *Page 431 Valley Maintenance Contrs., Inc. (1990),49 Ohio St.3d 228, 229. Pillsbury contends that the trial court correctly dismissed United's complaint because it lacked subject matter jurisdiction over United's claims, and for that reason, Pillsbury maintains that United failed to present a claim upon which relief could be granted. This contention, which was accepted by the trial court, is based upon the doctrine of federal preemption visvis the National Labor Relations Act ("NLRA"). In J.A. Croson Co.v. J.A. Guy, Inc. (1998), 81 Ohio St.3d 346, the Ohio Supreme Court explained: * * * The National Labor Relations Act ("NLRA") contains no express preemption provision. "Where the pre-emptive effect of federal enactments is not explicit, `courts sustain a local regulation "unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States."'" [Citations omitted; id. at 350.] What is known as "Garmon" preemption is at issue in this case. Garmon preemption was set forth by the United States Supreme Court in San Diego Building Trades Council, Millmens'Union, Local 2020 v. J.S. Garmon (1959), 359 U.S. 236,79 S.Ct. 773. Therein, the Court explained that the NLRA forbids state and local regulation of activities that either are, or are arguably, protected by Sections 157 and 158, Title 29, U.S.Code.1 InInternational Longshoremen's Assn., AFL-CIO v. Davis (1986),476 U.S. 380, 106 S.Ct. 1904, the Supreme Court explained: As the Garmon line of cases directs, the pre-emption inquiry is whether the conduct at issue was arguably protected or prohibited by the NLRA. * * * The precondition for pre-emption, that the conduct be "arguably" protected or prohibited, is not without substance. It is not satisfied by a conclusory assertion of pre-emption * * *. If the word "arguably" is to mean anything, it must mean that the party claiming pre-emption is required to demonstrate that his case is one that the Board could legally decide in his favor. That is, a party asserting pre-emption must advance an interpretation of the Act that is not plainly contrary to its language and that has not been "authoritatively rejected" by the courts or the Board. * * * The party must then put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on such an interpretation. * * * [Id. at 394-395, 1914.] *Page 432 * * * The better view is that those claiming pre-emption must carry the burden of showing at least an arguable case before the jurisdiction of a state court will be ousted. [Id. at 396, 1915.] The Supreme Court continued: * * * [A] court first must decide whether there is an arguable case for pre-emption; if there is, it must defer to the Board, and only if the Board decides that the conduct is not protected or prohibited may the court entertain the litigation. [Id. at 397, 1915-1916.] Three sections of the NLRA are implicated in this appeal. First, Section 157, Title 29, U.S. Code provides that: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title. Second, Section 158(a)(5), Title 29, U.S. Code provides that it is an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees. And finally, Section 158(d), Title 29, U.S. Code defines what it means to bargain collectively. That section provides: For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession. * * * Pillsbury maintains that United's claims for breach of contract, promissory estoppel, and unjust enrichment, are pre-empted by federal law, as its alleged repudiation of the agreement with United "arguably" violates Section 158(a)(5), Title 29, U.S.Code. This argument, however, ignores the NLRB's finding that Pillsbury's conduct is neither protected nor prohibited by the NLRA. United's charge was submitted to the NLRB on October 30, 1997. On February 19, 1998, United received a letter from an NLRB regional director, stating that its claim had been investigated, but that Pillsbury's refusal to honor the alleged agreement *Page 433 did not constitute a violation of Section 158(a)(5), Title 29, U.S.Code. As such, the director declined to issue a complaint against Pillsbury. United then requested a review of the regional director's refusal to proceed, and on July 1, 1998, the office of the general counsel reaffirmed the director's conclusion, noting that an "isolated contract breach" is insufficient to constitute a violation of Section 158(a)(5), Title 29, U.S.Code. In Garmon, the United States Supreme Court held that it was essential to the administration of the NLRA that the determination of whether conduct violated the Act be left in the first instance to the NLRB. Id. at 244-245. The Supreme Court also explained that if the NLRB decides that the disputed activity is protected or prohibited by Section 157 or 158, Title 29, U.S. Code, then the matter is at an end, and the states are ousted of all jurisdiction. Id. at 245. However, in this case, and in accordance with Garmon, United first submitted its claim to the NLRB, which, upon investigation, determined that the charge projected by United was not a valid charge under the NLRA. As such, the NLRB declined to accept jurisdiction of the matter, leaving it to be adjudicated by the courts. Because the NLRB determined that the challenged activity is neither protected nor prohibited by the NLRA, we find that the trial court erred when it concluded that United's claims were pre-empted by federal law. See Garmon, supra, at 245, 779; and J.A. Croson, supra, at 354. However, even if we were to disregard the NLRB's finding, accepting Pillsbury's contention instead, a cause of action which is either governed or arguably governed by the NLRA may nonetheless be pursued in court "if the behavior to be regulated is behavior that is of only peripheral concern to the federal law or touches interests deeply rooted in local feeling and responsibility." Belknap, Inc. v. Hale (1983) 463 U.S. 491,498, 103 S.Ct. 3172, 3177. Approached from this position, we find the issues presented by United's complaint involve the Ohio law of contract, estoppel, and unjust enrichment, and are, at the very most, of only peripheral concern to federal labor law. "The interests of the Board and the NLRA, on the one hand, and the interest of the State in providing a remedy to its citizens for breach of contract, on the other, are `discrete' concerns." Belknap, supra, at 512, 3184. An agreement to divide incidental costs associated with renting meeting space and providing drinks and meals does not implicate concerns addressed by the NLRA governing collective bargaining with respect to wages, hours, and *Page 434 other terms and conditions of employment. Accordingly, we find that the trial court erred in determining that United's claims are pre-empted by the NLRA. Thus, United's first assignment of error is sustained. Turning to the second assignment of error, it is our opinion that the trial court also erred when it concluded that United's claims are barred by the doctrine of res judicata. On numerous occasions, courts have explained that the doctrine of resjudicata is applicable to orders rendered as a result of the proceedings of administrative agencies, but only when those proceedings are "of a judicial nature and where the parties have had an ample opportunity to litigate the issues involved in the proceeding." Set Products, Inc. v. Bainbridge Twp. Bd. of ZoningAppeals (1987), 31 Ohio St.3d 260, 263. Proceedings of administrative agencies are neither judicial nor quasi-judicial in nature when they: (1) do not require notice; (2) do not require a hearing; and (3) when the parties do not have the opportunity to introduce evidence. M. J. Kelley Co. v. Cleveland (1972),32 Ohio St.2d 150. In this case, the NLRB conducted an investigation, not an adjudicative hearing. The record contains no indication that either party was allowed to participate in the investigation. Neither party was given notice of when the investigation would occur, or how it would proceed. No adjudicative hearing was conducted, and neither party was given the opportunity to introduce evidence. Thus, the doctrine of res judicata is not applicable to the investigation and subsequent determination by the NLRB. United's second assignment of error is therefore sustained. For the foregoing reasons, both assignments of error are sustained and the judgment of the Franklin County Court of Common Pleas is reversed. This cause is therefore remanded to that court for further proceedings in accordance with law and this opinion. __________________ PETREE, J. McCORMAC and KENNEDY, JJ., concur. McCORMAC, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution. 1 Garmon preemption prohibits not only inconsistent substantive rules of law, but also disparities in administration and remedies. Bldrs. Assn. v. Commercial Piping Co. (1982),70 Ohio St.2d 9, 15. *Page 435

2016-07-06 06:36:09.626885+00

Per Curiam

Appellants Palmo and Harriet Simmons's single assignment of error contends that the trial court erred in granting the motion to dismiss filed by appellees, Dr. Bernard L. Hertzman ("Hertzman"), Dr. Asher O. Hoodin ("Hoodin"), and Hoodin, Levi Associates, Inc. ("Corporation"), "based upon the belief that a claim for negligent sterilization is derivative." In the Simmonses' accompanying argument they assert that an action for wrongful pregnancy is recognized in Ohio as a direct right of the parent, in which the parent may recover damages proximately caused by the birth of a child subsequent to a doctor's failure to perform a sterilization procedure properly. On May 3, 1982, Palmo Lee Simmons had a vasectomy, which apparently was performed by Dr. Hoodin. On June 22, 1982, he was seen by Dr. Hertzman, who informed him that he was sterile. In December 1982, Harriet A. Simmons discovered she was pregnant and a subsequent sperm test determined that Palmo Simmons was fertile. On July 9, 1983, April Lynette Simmons was born with severe abnormalities. Appellants initially filed a complaint against Dr. Hertzman on November 23, 1983, alleging that "Plaintiff suffered an injury by the negligent failure of the vasectomy by the Defendant and Plaintiffs' child, April Lynette Simmons, will require medical care and attention in the future, the reasonable value of which is unknown at the present time," and that as a result of the negligence "Plaintiffs will incur expenses for the care and maintenance of the child * * * as well as medical expenses to correct the abnormalities at birth." The complaint also alleged that as a result of Dr. Hertzman's alleged negligence, "Plaintiffs' child * * * suffered physical injury and deformity and may suffer mental injury which could diminish her earning capacity and could require special education and care in the future, the reasonable value of which is unknown at the present time." *Page 455 Appellants' complaint was amended May 6, 1985, to include Dr. Hoodin and the Corporation, alleging that "Plaintiff Palmo Lee Simmons suffered an injury by the negligent failure of the vasectomy procedure and follow-up by Defendant Hertzman and Plaintiffs' child * * * will require medical care and attention in the future, the reasonable value of which is unknown at the present time" and "[a]s a result of the negligence of Defendant Hertzman, Plaintiff Palmo Lee Simmons and his daughter * * * will incur medical expenses for the care and maintenance of the child as well as medical expenses to correct the abnormalities at birth." Also included in the complaint was the allegation that as a result of Dr. Hertzman's negligence, "Plaintiffs' child suffered physical injury and deformity and may suffer mental injury which would diminish her earning capacity and could require special education and care in the future, the reasonable value of which is unknown at the present time." The complaint included a claim for relief in the alternative against Dr. Hoodin and the Corporation if it were determined that Dr. Hoodin performed the vasectomy and a claim on behalf of April Lynette Simmons by Harriet Simmons which incorporated by reference all the allegations set forth in the previous counts. Dr. Hoodin and the Corporation filed a motion to dismiss based on the failure of the appellants to file their action within the proper statute of limitations. The trial court granted the motion to dismiss, stating that: "The Court finds that the medical malpractice action filed against defendants, Asher O. Hoodin and Hoodin, Levi Associates, Inc., by plaintiffs, Mr. and Mrs. Palmo Lee Simmons which includes, but is not limited to, any cause of action for wrongful birth, wrongful conception and/or wrongful pregnancy are dismissed against defendants, Asher O. Hoodin and Hoodin, Levi Associates, Inc., for failure of such claims to be filed within one year after the cause of action accrued pursuant to the statute of limitations for medical malpractice actions contained in R.C. 2305.11(A)." This decision was not appealed. Subsequently, the appellees filed a motion pursuant to Civ.R. 12(B)(6) to dismiss the cause of action brought on behalf of April Lynette Simmons for failure to state a claim. On January 16, 1990, the trial court granted the motion and stated: "The Court hereby orders and decrees that plaintiffs' Third Claim for Relief in the Amended Complaint filed against defendants, Bernard L. Hertzman, M.D., Asher O. Hoodin, M.D. and Hoodin, Levi Associates, Inc., by plaintiffs, Mr. and Mrs. Palmo Lee Simmons, on behalf of April Simmons is dismissed on the grounds that Ohio law does not recognize a cause of action brought by a plaintiff who seeks damages for being born as a proximate result of negligent sterilization." *Page 456 The decision was appealed and this court affirmed the trial court's judgment. This court agreed with the appellants that the claim asserted on behalf of April Lynette Simmons was not a claim for wrongful life, and determined that the claim was a claim for damages "sought for April's present and future medical expenses related to genetic birth abnormalities because of the negligently performed vasectomy on her father." Simmons v.Hertzman (1991), 71 Ohio App.3d 139, 141, 593 N.E.2d 83, 84, jurisdictional motion overruled (1991), 61 Ohio St.3d 1426,575 N.E.2d 215. Determining, however, that any alleged negligence by the doctor "necessarily occurred prior to conception and cannot be related to the genetic abnormalities for which damages are sought," we held that the allegations set forth in the complaint were insufficient to survive appellees' motion to dismiss because the complaint failed to sufficiently allege "any facts under which it might conceivably be demonstrated that the injury sustained was the natural and probable consequence of the negligence alleged." Id. Dr. Hertzman, Dr. Hoodin, and the Corporation then filed a motion to dismiss the remaining causes of action in the underlying case, arguing that the causes of action were legally insufficient because they were derivative of April Lynette Simmons's previously dismissed claim.1 It is the granting of this motion that is now before us on appeal. Although it was not designated as such, we assume that appellants' motion was brought pursuant to Civ.R. 12(B)(6). When reviewing a Civ.R. 12(B)(6) motion to dismiss, a trial court must take as admitted material allegations contained in the complaint, State ex rel. Alford v. Willoughby Civ. Serv. Comm. (1979), 58 Ohio St.2d 221, 223, 12 O.O.3d 229, 230,390 N.E.2d 782, 785, and to affirm a dismissal pursuant to such a motion, an appellate court must conclude that it appears "beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. Univ. Community TenantsUnion, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223,327 N.E.2d 753, syllabus. We acknowledge that Ohio recognizes a cause of action for "wrongful pregnancy" or "wrongful conception." A "wrongful conception" or "wrongful pregnancy" claim is a malpractice claim brought by a parent "for proximate damages arising from the birth of a child subsequent to a doctor's failure to *Page 457 properly perform a sterilization procedure." Johnson v. Univ.Hospitals of Cleveland (1989), 44 Ohio St.3d 49, 51,540 N.E.2d 1370, 1372. In such an action, "Ohio recognizes the `limited damages' rule which limits the damages to the pregnancy itself and does not include child-rearing expenses. The extent of recoverable damages is limited by Ohio's public policy that the birth of a normal, healthy child cannot be an injury to her parents." Johnson v. Univ. Hospitals, supra, at paragraph two of the syllabus. The Ohio Supreme Court has not determined whether the parents of a child who is conceived after an unsuccessful sterilization procedure, but who is not a "healthy, normal child," may recover the expenses associated with any "defect" in the child. While we agree with the Simmonses that their wrongful-pregnancy action is an independent claim for damages, we are convinced from our review of their complaint that they can prove no facts entitling them to recovery for the damages they seek in light of both the Ohio Supreme Court's decision to apply the limited-damages rule to wrongful-pregnancy cases and our analysis in Simmons v. Hertzman, supra. The Simmonses do not seek recovery of costs and expenses associated with the pregnancy. They seek instead recovery of their daughter's present and future medical expenses related to genetic birth abnormalities because of the negligently performed vasectomy on her father. While Johnson, supra, did not directly address the issue of whether the parents of a child born with birth defects were entitled to recover damages associated with the birth defects in a cause of action for wrongful pregnancy, the court did view a wrongful-pregnancy claim as one involving traditional concepts of tort law, i.e., "duty and a breach of that duty which was the proximate cause of damage," in its rejection of a "no recovery" rule being applied to wrongful-pregnancy cases. Johnson, supra,44 Ohio St.3d at 58, 540 N.E.2d at 1378. Furthermore, the court refused to follow the "benefits" rule of damages "because of the impossibility of a jury placing a price tag on a child's benefits to her parents." The court explained, "We are not qualified to judge whether a child might become President or a hopeless derelict. We cannot pretend to know what the future may hold — and neither can [n]or may a jury." Id. In its rejection of the "full recovery rule," the court explained "[W]e are not persuaded to adopt the full recovery rule because the strict rules of tort should not be applied to an action to which they are not suited, such as a wrongful pregnancy case, in which a doctor's tortious conduct permits to occur the birth of a child rather than the causing of an injury." Id. We believe the reasons for rejecting these rules of recovery would also apply to limiting the damages allowed the parents of a child born with infirmities. We *Page 458 find pertinent to an indiscriminate application of the limited-damages rule in a wrongful-pregnancy case Judge Markus's statement in his dissent in opposition to a limited-recovery rule in Johnson v. Univ. Hospitals of Cleveland (Jan. 14, 1988), Cuyahoga App. No. 53192, unreported, 1988 WL 3762, in which he stated, "We should decline to draw a distinction between cases for a `healthy' child and an `abnormal' child, as some jurisdictions do. The difference between a `healthy' child and an `abnormal' child may often be a matter of degree, a fact which discourages the creation of a special rule for `abnormal' children. Every person has some `abnormality.'" We believe that the Ohio Supreme Court's application of traditional tort law, its admission of not knowing what a child's future might hold, and its determination that the birth of a child is not an injury, as incorporated in its analysis which resulted in limiting damages in Johnson, supra, would also apply to the birth of a child with abnormalities, such that recovery of costs other than those associated with the pregnancy itself would be precluded. Moreover, in Simmons v. Hertzman, supra, we determined that "[t]he facial infirmity in the complaint * * * is the absence of a sufficient allegation of proximate cause, which is reflected by the failure to recite any facts under which it might conceivably be demonstrated that the injury sustained was the natural and probable consequence of the negligence alleged."Id., 71 Ohio App.3d at 141, 593 N.E.2d at 84. This same infirmity exists in the parents' claim for wrongful pregnancy. There is no allegation in the complaint that the unsuccessful vasectomy increased the probability that the Simmonses' child would be born with abnormalities or that the failure to perform a successful vasectomy directly caused the abnormalities. Our reading of Johnson, supra, does not reveal that the Ohio Supreme Court has discarded proximate cause as a necessary element of a wrongful-pregnancy claim. In Johnson, supra, the court, quoting Prosser Keeton, Law of Torts (5 Ed.1984) 264, Section 41, explained that: "`"Proximate cause" — in itself an unfortunate term — is merely the limitation which the courts have placed upon the actor's responsibility for the consequences of the actor's conduct. In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in an infinite liability for all wrongful acts, and would "set society on edge and fill the courts with endless litigation." As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy. *Page 459 "`This limitation is to some extent associated with the nature and degree of the connection in fact between the defendant's acts and the events of which the plaintiff complains. Often to greater extent, however, the legal limitation on the scope of liability is associated with policy — with our more or less inadequately expressed ideas of what justice demands * * *.' (Footnote omitted.)" Johnson, supra,44 Ohio St. 3d at 57, 540 N.E.2d at 1377. Appellants' complaint is insufficient to support the parents' claim for medical expenses to care for their daughter's genetic abnormalities because it is devoid of any allegation that the genetic abnormalities were proximately caused by or were the natural and probable consequences of appellees' negligent vasectomy procedures. See Simmons v. Hertzman, supra. Accordingly, we affirm the trial court's decision, not because the Simmonses' claim was derivative, but because the recovery for a wrongful-pregnancy claim is limited to the damages proximately caused by an unsuccessful vasectomy procedure,i.e., the costs associated with the pregnancy. Therefore, the judgment of the trial court is affirmed. Judgment affirmed. SHANNON, P.J., and KLUSMEIER, J., concur. M.B. BETTMAN, J., dissents. 1 Dr. Hoodin and the Corporation were dismissed from any medical malpractice action "including any cause of action for wrongful conception and/or wrongful pregnancy" pursuant to the trial court's granting of their motion to dismiss for failure to file a claim within the applicable statute of limitations. In this appeal, Dr. Hoodin and the Corporation are claiming that the Simmonses have suffered no harm independent from their derivative relationship with their child and thus apparently do not view the Simmonses' cause of action as a wrongful-pregnancy claim.

2016-07-06 06:36:09.667513+00

Grady

{¶ 1} This is an appeal from a summary judgment granted to defendant, Coverall of Southern Ohio ("Coverall"), on plaintiff Charles Ihenacho's claim for relief. {¶ 2} Ihenacho performs janitorial services as a franchisee of Coverall. In that relationship, Ihenacho participates in Coverall's "Franchise Owner Job Related Accident Policy" ("FOJ policy"), which provides a form of coverage for work-related injuries. Ihenacho paid monthly premiums for that coverage. {¶ 3} Ihenacho was injured in an automobile accident on Saturday, November 1, 2003. Contending that he was then traveling to perform janitorial services for a customer, Ihenacho sought coverage under the FOJ policy for his medical expenses and other losses. Coverall denied coverage after concluding that Ihenacho had not, in fact, been traveling to perform work when he was injured. {¶ 4} Ihenacho commenced the action underlying this appeal in the court of common pleas against Coverall, seeking coverage under the FOJ policy. Exhibits pertaining to the accident and his purchase of coverage were attached to Ihenacho's complaint. {¶ 5} Coverall filed a Civ.R. 12(B)(6) motion to dismiss the action Ihenacho filed. Coverall's memorandum contends that per their franchise agreement, Ihenacho was obligated to obtain workers' compensation and automobile liability insurance coverage, including coverage for personal injuries and property loss, and did not. Coverall further argued: {¶ 6} "Additionally, Coverall's records indicate that the only account Plaintiff would have serviced on a Saturday was the Wright Patterson Credit Union. However, the route from Plaintiffs home to the Wright Patterson Credit Union differs substantially from the location of the accident. A map of the area in question with a comparison of the route versus the location of the accident is attached hereto as Exhibit 3. It is obvious that the accident did not occur during the course of Plaintiffs Coverall business. Consequently, there are no policies of insurance in force that would cover him." {¶ 7} Coverall's motion and memorandum were supplemented by exhibits. They include purported copies of its franchise agreement with Ihenacho, the FOJ policy covering him, and a map indicating where the accident occurred and Ihenacho's likely route of travel to the place of business of the customer *Page 15 concerned, which do not converge. None of the exhibits are supported by an affidavit. {¶ 8} Ihenacho filed a memorandum contra Coverall's motion. He attached additional exhibits to his memorandum. None are supported by an affidavit. {¶ 9} Coverall filed a response to Ihenacho's memorandum contra, supported by more exhibits. Again, none are supported by an affidavit {¶ 10} On June 27, 2006, the trial court granted Coverall's motion. The court cited and relied on the provision of Civ.R. 12(B)(6) providing that "[w]hen a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Civ.R. 56." On that basis, the court converted Coverall's motion to one for summary judgment and granted the motion. {¶ 11} In its analysis, the court found that there was no genuine issue of material fact that Ihenacho was involved in an automobile accident and that he has a right to coverage under the FOJ policy. However, the court further found that because Ihenacho failed to obtain automobile liability insurance covering his losses in an automobile accident and because the "evidence presented by [Ihenacho] indicates that he serviced the [customer to whose facility he was traveling] on Fridays rather than Saturdays," the day of the accident, Ihenacho is not entitled to coverage for his injuries and losses under the FOJ policy. {¶ 12} Ihenacho filed a timely notice of appeal and appears pro se. His brief on appeal does not identify a particular assignment of error, as App.R. 16(A)(3) requires. Instead, Ihenacho merely repeats the contentions of his claim that he is entitled to coverage for his injuries and losses under the FOJ policy, a claim the trial court found lacks merit. {¶ 13} We necessarily take Ihenacho's argument to contend that the trial court erred when it granted Coverall's motion. Because the court granted the motion pursuant to Civ.R. 56, we conduct a de novo review of the relief that Coverall requested in its motion. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 671 N.E.2d 241. "De novo review means that this court uses the same standard the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial." Brewer v.Cleveland City Schools Bd. of Edn. (1997),122 Ohio App.3d 378, 383, 701 N.E.2d 1023. {¶ 14} Coverall's motion was filed pursuant to Civ.R. 12(B)(6). A motion filed pursuant to that rule tests the legal sufficiency of the claims for relief in the pleadings.Powell v. Vorys, Sater, Seymour Pease (1998),131 Ohio App.3d 681, 723 N.E.2d 596. In resolving a Civ.R. 12(B)(6) motion, the court is confined *Page 16 to the statements set forth in the pleading under attack.Jackson v. Ohio Bur. of Workers' Comp. (1994),98 Ohio App.3d 579, 649 N.E.2d 30. In this instance, that is the form of complaint that Ihenacho filed. Civ. R. 8(A). {¶ 15} Civ.R. 12(B)(6) provides: {¶ 16} "When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided, however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56." {¶ 17} The "reasonable opportunity" provision of Civ.R. 12(B)(6) requires the court to notify the parties when the court converts the motion to a Civ.R. 56(C) motion for summary judgment prior to ruling on the motion. Failure to give the required notice is reversible error. State ex rel. Boggsv. Springfield Local School Dist. Bd. of Edn. (1995),72 Ohio St.3d 94, 647 N.E.2d 788; State ex rel. Baran v.Fuerst (1990), 55 Ohio St.3d 94, 563 N.E.2d 713. {¶ 18} The trial court erred when, on June 27, 2006, finding that Coverall's motion presented matters outside the pleadings, the court converted Coverall's Civ.R. 12(B)(6) motion to dismiss to a Civ.R. 56(C) motion for summary judgment and, without notice to the parties of the conversion, granted Coverall's motion pursuant to Civ.R. 56. The effect of the court's error implicates the following provision of Civ.R. 56(C): {¶ 19} "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule." {¶ 20} The only evidentiary materials before the court were the exhibits attached to Ihenacho's complaint, Coverall's motion, and Ihenacho's memorandum contra. None were supported or opposed by affidavits made on personal knowledge, as Civ. R. 56(E) requires. Therefore, per Civ.R. 56(C), the court could not consider the evidence before it. State exrel. Boggs, 72 Ohio St.3d 94, 647 N.E.2d 788. Not having evidence required by Civ.R. 56(C) on which it could act, the trial court erred when it granted Coverall's motion for summary judgment. *Page 17 {¶ 21} The assignment of error is sustained. The judgment from which the appeal was taken is reversed, and the cause is remanded for further proceedings on Ihenacho's claim for relief. Judgment accordingly. FAIN and DONOVAN, JJ., concur.

2016-07-06 06:36:09.699431+00

Per Curiam

This cause came on to be heard upon the appeal, transcript of the docket, journal entries and original papers from the Court of Common Pleas of Butler County, Ohio, transcript of proceedings, briefs and oral arguments of counsel. *Page 179 Now, therefore, the assignments of error having been fully considered, are passed upon in conformity with App. R. 12(A) as follows: On December 31, 1974, the appellant, Ray L. Orr, was employed by Bates Truck Lines, Inc. of Lancaster, Ohio, which is also an appellant. At approximately 2;30 p.m., Orr was driving an eighteen wheel tractor-trailer as he was leaving the Inland Container Corporation in Middletown, Ohio. With two semi-trailers partially obstructing his view, the appellant eased his truck out onto Nelbar Avenue from the west side of the street where the parking lot of Inland Container was located. The appellant, upon checking the traffic in the vicinity, pulled his tractor-trailer out onto Nelbar Avenue across the two southbound lanes toward the one northbound lane. As the appellant pulled his vehicle out onto the street, the appellee, Kenneth Roger Linden (who was also driving a tractor-trailer), approached from the north as he was headed southbound on Nelbar. Evidence was introduced which established that the appellee was somewhere between seventy and one hundred twenty feet from the appellant's truck when he first noticed the truck in the roadway. The evidence also indicated that the appellee was not exceeding the posted speed limit. The appellant testified on cross-examination that he was "just going across the center line" when he first observed the appellee; and that he then started to push the accelerator to the floor and was hit by the appellee's trailer, at which time he applied the brakes. As the appellee approached the appellant's truck, he cut to the left, eased off the accelerator, and then applied his brakes in an attempt to avoid the appellant's truck. It had been raining throughout the day, the road surface was wet and when the appellee applied his brakes, his truck jackknifed. The tractor portion of his vehicle crossed into the left or northbound lane, striking the curb on the opposite side of the street while the trailer portion of his vehicle swung around to the right with the right rear portion of his trailer striking the appellant's trailer. The appellant Orr was then cited by Officer Don Wallace of the Middletown Police Department for failure to yield. Eventually, Orr went to the city building with Officer Wallace. There was conflicting testimony as to what happened at the city building. Officer Wallace testified that the appellant was told by Mr. Rossi, the Director of the Middletown Municipal Court, that he could either pay a fifty-dollar bond and appear in traffic court, or plead "guilty" and pay an eighteen dollar fine and have the whole matter disposed of. Meanwhile, the appellant testified that he did not pay the eighteen dollar fine with the understanding that he was pleading guilty, but only paid it so that he would not have to appear in court at a later date. The appellee then filed suit against the appellants for his injuries. He alleged that the appellant, Ray L. Orr, was negligent in the operation of the tractor-trailer truck. The appellants then counterclaimed for injuries and the case was tried before a jury. The jury returned a verdict for the appellee in the amount of twenty thousand dollars. The appellants have timely appealed. The appellants cite two assignments of error. They are as follows: "First Assignment of Error: "It was error for the court to admit evidence that Ray Orr had plead [sic] `guilty' when in fact no such `guilty' plea was entered and the actual transaction involved an eighteen dollar ($18.00) pay-out in front of a director of the municipal court. "Second Assignment of Error: "The court erred in its instructions on assured clear distance and such error prejudiced the defendant." The appellants in their first assignment *Page 180 of error contend that the trial court erred by admitting testimony that the appellant, Ray Orr, pled guilty to a charge of failure to yield as they contend that no guilty plea had ever been entered. The appellee, meanwhile, contends that it was proper for the trial court to admit evidence that the appellant pled guilty because this constituted evidence of an admission against the appellant's interest. The trial court concluded that it was for the jury to determine what actually happened and gave the following charge to the jury: "Now in this case it is claimed by the plaintiff that the defendant, Ray Orr, entered a plea of guilty in the Middletown Municipal Court, Middletown, Ohio, to the charge of failure to yield the right of way. The defendant, Ray Orr, denies that he entered said guilty plea and that he merely paid a small fine to keep from coming back to Middletown Municipal Court at a later date. Now the court tells you that if you find by the greater weight of the evidence or the preponderance of the evidence that the defendant, Ray Orr, pled guilty to the charge of failure to yield the right of way, then you will consider that plea of the defendant as a declaration against interest in determining whether he is guilty of negligence in this respect. But if you conclude that such is not proved then you will not consider the fact that the record showed he pled guilty as going to the question of negligence." R.C. 1.16 provides that: "Anyone injured in person or property by a criminal act may recover full damages in a civil action, unless specially excepted by law. No record of a conviction, unless obtained by confessionin open court, shall be used as evidence in a civil action brought for such purpose." (Emphasis added.) Thus, the question is whether or not the appellant's plea, if any, in the municipal court, was made in open court. Traf. R. 13, as it now exists, provides for a traffic violations bureau. The rule provides that the court shall appoint the clerk as the violations clerk, or if there is no clerk, the court shall appoint any appropriate person to serve in that capacity. The violations bureau is then required to "accept appearance, waiver of trial, plea of guilty and payment of fine and costs for offenses within its authority." This rule, or a similar rule, was in effect at the time of the appearance of the appellant before Rossi. The question then is whether or not this is an appearance in open court. It is our view that "open court" means that court is in session and the judge is on the bench. The record indicates that the appellant's appearance was before Rossi, not the judge. Therefore, we conclude that there is a failure to comply with R.C. 1.16. The next question is whether or not the Traffic Rules supersede any statute which appears to be in conflict with those rules. There is no question that the Rules of Civil Procedure, the Rules of Criminal Procedure, the Rules of Evidence, and the Rules of Juvenile Procedure supersede any conflicting statute. However, those rules were adopted pursuant to the authority given in Section 5(B), Article IV, of the Ohio Constitution and that section provides in part that: "All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect." However, the Traffic Rules were adopted by the authority granted by statute; and they do not have the same force or effect as the rules adopted pursuant to Section 5, Article IV of the Ohio Constitution. Therefore, R.C. 1.16 remains in effect and only those pleas made in compliance therewith are admissible into evidence. However, the testimony of Officer Wallace indicates that the appellant was properly advised as to the consequences of his act in disposing of his citation at that time. Therefore, it appears that little else would have been accomplished had the appellant appeared in *Page 181 open court. Nevertheless, the admission into evidence of the action in the municipal court and the instructions to the jury on the subject of the plea of guilty constitute error. We must then ask whether or not this is prejudicial error. An examination of the record and particularly of the appellant's testimony on cross-examination convinces us that the record contains abundant evidence from which the jury could have concluded that the negligence of the appellant was the sole proximate cause of the injuries to the appellee. Thus, the error committed by the court by permitting the introduction of evidence on the subject of the guilty plea and in making reference to that plea in the instructions to the jury, is harmless error. Therefore, the appellants' first assignment of error is overruled. In his second assignment of error, the appellant contends that the trial court failed to give a proper jury instruction on assured clear distance as it relates to negligence per se. Specifically, he claims that the court refused to charge the jury that if the assured clear distance rule applied and was violated, then the jury must find the appellee negligent as a matter of law. After reviewing the record, we find that the instructions given by the court, although they could have been more explicit, were certainly sufficient to properly inform the jury of the law of assured clear distance. We find that the jury was informed that "no motorist may operate a vehicle at a greater speed than will permit him to bring it to a complete stop within the assured clear distance ahead." The jury was then informed of the definition of assured clear distance ahead, and was told the effect that a sudden emergency had on the driver's duty in terms of the assured clear distance rule. As to the appellant's specific complaint that the jury wasn't informed that a violation of the assured clear distance rule constituted negligence per se, we find there to be no error. While the instructions did not specifically mention, after the definition of assured clear distance, that a violation of this statute constituted negligence per se, the court immediately preceding its definition adequately informed the jury of the meaning of negligence and contributory negligence. From the juxtaposition of the instructions as to negligence and assured clear distance, it is then logical to conclude that the jury was adequately informed of the appellee's responsibility under the assured clear distance statute and of his possible responsibilities if the jury found he had violated this statute. Although it may have been better practice to follow those instructions suggested in Ohio Jury Instructions, there is no requirement that these are the instructions which must be used. Thus, if the jury is adequately informed of the law, the jury instructions are proper regardless of the word order selected by the trial judge. Therefore, there was no error in the court's instruction of assured clear distance and the appellants' second assignment of error is overruled. The assignments of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that the judgment or final order herein appealed from be, and the same hereby is, affirmed. Judgment affirmed. CASTLE, P.J., HENDRICKSON and KOEHLER, JJ., concur. *Page 182

2016-07-06 06:36:10.810549+00

Per Curiam

This case is concerned with the narrow issue whether a court reporter's attendance charges are to be taxed as costs in a Municipal Court that does not *Page 120 have a court reporter where, prior to trial, a defendant (subsequently acquitted) requests a court reporter to take stenographic notes of the proceedings. A complete transcript of the testimony may be the necessary (or at any rate the best) way to show claimed errors on appeal. This can only be accomplished if a court reporter is present during the trial. Moreover, without the transcript, the cost of preparation and the expense for counsel could prove to be a vain expenditure in case of conviction. For without the record an appeal may be futile. Refusal to tax the costs of the court reporter to the loser forces a defendant to make the choice of foregoing his right to a complete transcript of the testimony for use on appeal or paying the cost of the court reporter even though he is ultimately acquitted.* A rule imposing such options is fundamentally unfair and therefore unconstitutional because fairness is an essential element of due process under the Fourteenth Amendment of the United States Constitution. (Cf. Section 16, Article I, Constitution of Ohio, first paragraph, "due course of law".) There is an additional vice in the refusal to tax the costs of the reporter's attendance as requested in this case. A successful criminal defendant in Common Pleas Court may have taxed as costs attendance fees of a court reporter by virtue of the statutes. See R. C. 2301.20 and 2301.21. These sections, read together with R. C. 1901.21 (A) and 1907.371, make the common pleas provision for court reporters applicable to Lakewood Municipal Court. The obligation thus imposed becomes that set out in R. C. 2301.20 and 2301.21, which provide in pertinent part: R. C. 2301.20: ". . . if either party to the suit, or his attorney, requests the services of a shorthand reporter, the trial judge shall grant the request, . . . ." *Page 121 R. C. 2301.21: "In every case reported as provided in section 2301.20 of the Revised Code, there shall be taxed for each day's service of the official or assistant shorthand reporters a fee . . ., to be collected as other costs in the case . . . ." For both the constitutional and statutory reasons assigned, judgment is reversed and this cause is remanded to Lakewood Municipal Court with instructions to tax attendance fees as costs. Judgment reversed. DAY, C. J., KRENZLER, J., concur. MANOS, J., dissents. * The contention that a defendant should pay the court reporter because he pays his attorney does not have merit. An attorney, by tradition, is personal to the defendant, while a court reporter's services are normally a part of the judicial expense and taxed as costs.

2016-07-06 06:36:11.420298+00

Reece

I would affirm both convictions. First, an amplification of the facts is in order. On November 14, 1992, Meissner's German Shepherd dog, running at large, chased a smaller dog down a public street until the Shepherd grabbed, bit repeatedly, shook and ultimately killed the smaller dog. The owner of the small dog had to use a baseball bat to finally chase off the Shepherd. The Shepherd was then followed to Meissner's house where it was let into the house by Meissner, who verified that it was her dog. In Assignment of Error II, Meissner argues that there was not a valid complaint under Crim.R. 3, charging the minor misdemeanor of permitting the Shepherd to run at large. In the first place, Crim.R. 3 is not applicable. Crim.R. 4.1 specifically deals with minor misdemeanors and starts out with the language, "[N]otwithstanding Rule 3 * * *." Crim.R. 4.1(D) is the section to be examined in this case. The Ohio Supreme Court seems to have come to a different conclusion than the majority opinion on the interpretation of Crim.R. 4.1(D). In State v. Slatter (1981), 66 Ohio St.2d 452,457, 20 O.O.3d 383, 386, 423 N.E.2d 100, 103, the Supreme Court analyzed Crim.R. 4.1 as a whole, including subsection (D) as follows: "Subdivision (D) requires signing of the citation by theissuing officer and delivery to the court." (Emphasis added). Conspicuously absent is a requirement that the minor misdemeanor citation be sworn to. This seems to me to support the procedure followed by the officer in this case and the decision by the trial court. The three cases cited by the majority in support of its position are inapplicable. State v. Miller, supra, dealt with a complaint and affidavit (not a citation) charging a misdemeanor theft under R.C. 2913.02. All that court said was that *Page 6 there is an absence of a sufficient formal accusation when the complaint and affidavit are not even signed. Stewart v. State,supra, is a 1932 case, well predating citations in Ohio, which held that there could be no felony convictions except on indictments, bills of information not existing at that time.State v. Green, supra, involved various misdemeanor charges and was decided on Crim.R. 3. As to the more serious first degree misdemeanor covered in Assignment of Error I, I believe that not only does the language of the ordinance express the plain purpose of the city council to impose strict liability, but the words "suffer" and "permit," to use an illustrative verb, permit meanings indicative of passive, not active, circumstances. Akron City Code 92.25 is a strict liability offense. To find otherwise would put Section 92.25(B) in conflict with Section 92.25(C)(3), which provides: "Lack of intent or knowledge is not a defense to a violation of this section." In addition, the nature of the offense plainly indicates City Council's purpose to impose strict liability. Principles of statutory construction require that courts interpret statutes to reflect a consistent legislative intent. "It is a primary rule of statutory construction that courts should not construe one statute in a way that would abrogate, defeat, or nullify another statute, where a reasonable construction of both is possible." San Diego v. Elavsky (1979),58 Ohio St.2d 81, 86, 12 O.O.3d 88, 91, 388 N.E.2d 1229, 1232. When finding legislative intent, courts must "avoid absurd and grotesque results" wherever possible. State v. Nickles (1953),159 Ohio St. 353, 50 O.O. 322, 112 N.E.2d 531, paragraph one of the syllabus. It would be inconsistent for City Council to require the prosecution to prove a culpable mental state in its prima facie case, under Section 92.25(B), and then to disallow a lack of intent or knowledge as a defense under Section 92.25(C)(3). A consistent reading of A.C.C. 92.25 as a whole plainly indicates City Council's purpose to impose strict criminal liability. The nature of the offense also indicates a purpose to impose strict liability. In State v. Buehler Food Markets (1989),50 Ohio App.3d 29, 31, 552 N.E.2d 680, 683, this court found that "where the purpose of the statute is to protect the victim * * * regardless of the mental state of the defendant; where it would be almost impossible to prove guilty knowledge; where the defendant has the sole opportunity to guard against the forbidden conduct and ascertain the true facts; where there exists a serious and substantial harm to the public from such conduct; where the offense is one of the eight categories of offenses amenable to strict liability; and where the offense belongs to the mala prohibita class of offenses which are not inherently wrong in and of themselves unless designated *Page 7 as wrong by the legislature, the conclusion that the legislature intended to impose strict liability is supported."2 A.C.C. 92.25 is similar in these respects to the statute then under consideration, R.C. 1327.61(B). A.C.C. 130.07(B) relieves the prosecution of any burden to produce evidence of intent under these circumstances: "When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. * * *" Since the prosecution proved that the appellant owns the dog described in the complaint and that her dog bit another dog, there was sufficient evidence to convict her under A.C.C. 92.25(B)(4). Additionally, another dictionary definition for "permit" is "to give opportunity for" and for "suffer" is "to let happen." Neither of these definitions requires that a person actively and recklessly do something which results in her dog biting. Providing an opportunity for or letting something happen connotes passivity to me. Over and above all of this, it seems to me that a trier of fact could reasonably infer that on the fourteenth of November, at 7:45 pm, in Akron, Ohio, a homeowner does not leave her door open, thus even passively letting her dog roam out to bite, unless dogs are now opening doors. This inference is buttressed by the fact that Meissner later actively opened her door to let her dog in after the biting. I believe it could be inferred that she opened the door to let this dangerous dog out. This recklessness, or at least permitting or suffering, should satisfy even the majority. I would affirm. 2 Sayre, Public Welfare Offenses (1933), 33 Colum.L.Rev. 55, 73, lists the eight categories of offenses amenable to strict liability as: "(1) Illegal sales of intoxicating liquor; "* * * "(2) Sales of impure or adulterated food or drugs; "* * * "(3) Sales of misbranded articles; "(4) Violations of anti-narcotic acts; "(5) Criminal nuisances; "(a) annoyances or injuries to the public health, safety, repose or comfort; "* * * "(6) Violations of traffic regulations; "(7) Violations of motor-vehicle laws; "(8) Violations of general police regulations, passed for the safety, health or well-being of the community." *Page 8

2018-12-21 17:00:25.654963+00

http://www.ca4.uscourts.gov/Opinions/186971.U.pdf

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-6971 TIMOTHY CRANDELL, Petitioner - Appellant, v. KEVIN BARNES, Superintendent, Department of Public Safety; ERIK A. HOOKS, Respondents - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:17-hc-02116-BO) Submitted: December 18, 2018 Decided: December 21, 2018 Before AGEE, THACKER, and HARRIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Timothy Crandell, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Timothy Crandell seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473 , 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322 , 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85 . We have independently reviewed the record and conclude that Crandell has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2

2016-07-06 06:36:09.830253+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, Arthur J. Michaels ("Husband"), appeals the judgment entry/decree of divorce issued by the Medina County Court of Common Pleas, Domestic Relations Division. This Court reverses. I. {¶ 2} On March 17, 2005, Husband filed a complaint for divorce from Kimberly A. Michaels ("Wife"). On April 13, 2005, Wife filed an answer and counterclaim for divorce. The parties engaged in lengthy discovery. {¶ 3} On April 9, 2007, the parties appeared for a hearing at which they asserted that they had reached an agreement to settle all matters except for the *Page 2 issue of spousal support, which they would leave to the court for determination. Counsel for Wife read the terms of the settlement agreement into the record. On April 10, 2007, the parties again appeared for hearing, at which time they informed the court that they had reached an agreement regarding spousal support as well. {¶ 4} At the hearing on April 9, 2007, the trial court informed the parties that their divorce would not be final until a judgment entry reflecting their settlement was submitted to each for signature, then sent back to the attorneys who would send it to the judge for review, signature and filing with the Clerk of Courts. The trial court further informed the parties: "[I]f there is any dispute in the preparation of the Judgment Entry reflecting your settlement today, that all disputes will be resolved at your cost by your paying for a transcript of the record that we're presently making. If it is not in the settlement transcript in substantive terms, it will not be in your written Judgment Entry." {¶ 5} On April 23, 2007, Husband filed a motion to allow a transcript to be secured and a motion for transcript and incorporation of same into the divorce decree. Husband requested the preparation of a transcript of the proceedings recorded on April 9 and 10, 2007, due to a disagreement regarding the terms incorporated into the judgment entry tendered to him by Wife. Husband requested incorporation of the terms enunciated on the record into the judgment entry and a stay of the filing of any entry pending the preparation of the transcript. *Page 3 {¶ 6} On May 3, 2007, Wife filed a notice of submission of judgment entry/decree of divorce pursuant to Loc.R. 8.01. Wife certified that the submission of the judgment entry/decree of divorce to the court was in compliance with the requirements of Loc.R. 8.01. Wife's attorney signed the judgment entry, asserting his approval. Rather than indicating the signature and approval of Husband's counsel, the entry merely stated that it had been submitted to Husband's counsel on April 18, 2007. {¶ 7} On May 7, 2007, Husband filed an objection to Wife's notice of submission of the divorce decree and her certification of compliance with Loc.R. 8.01. On May 9, 2007, the trial court issued a scheduling order, scheduling a hearing on May 24, 2007, on Husband's objections. Nevertheless, on May 9, 2007, the trial court filed the judgment entry/decree of divorce submitted by Wife and which the judge had signed on May 7, 2007. {¶ 8} On May 23, 2007, Husband filed a request for an "evidentiary hearing to determine whether the putative settlement agreements are fair and equitable." In addition, the same day Husband filed a motion objecting to the issuance of the final judgment and for relief from the putative agreements, wherein he sought relief on the grounds of impossibility and mutual mistake. *Page 4 {¶ 9} On May 25, 2007, the trial court issued a judgment entry out of a May 24, 2007 pretrial conference1 regarding (1) Husband's objection to Wife's notice of submission of divorce decree; (2) Husband's motion objecting to the issuance of the final judgment; and (3) Husband's request for evidentiary hearing. The trial court ordered: "The parties' Judgment Entry/Decree of Divorce was signed by the undersigned jurist on May 7, 2007 and filed of record May 9, 2007. To the extent that substantive discrepancies, if any, exist between the transcripts of the parties (sic) final settlement, as placed on the record, and the Judgment Entry/Decree of Divorce, then the Judgment Entry/Decree of Divorce shall be amended nunc pro tunc to conform to the substantive terms set forth in the transcripts. Counsel for the parties shall glean from the transcripts and the Judgment Entry/Decree of Divorce any such discrepancies and submit a corrected judgment entry accordingly." The trial court further ordered any party seeking other relief to file such motions as may be appropriate. On June 6, 2007, Husband filed a motion for relief from judgment pursuant to Civ.R. 60(B)(1), (4) and (5). {¶ 10} On June 7, 2007, Husband filed his notice of appeal with this Court. Accordingly, the trial court had no opportunity to rule on Husband's Civ.R. 60(B) motion. *Page 5 {¶ 11} Husband raises three assignments of error for review. This Court addresses the second assignment of error first as it is dispositive of this appeal. II. ASSIGNMENT OF ERROR II "BY JOURNALIZING THE FINAL DIVORCE DECREE AS PROPOSED BY [WIFE] WITHOUT FIRST VERIFYING EACH PARTY'S COMPLIANCE WITH LOCAL RULE 8.01, THE TRIAL COURT ABUSED ITS DISCRETION." {¶ 12} Husband argues that the trial court abused its discretion by journalizing the final divorce decree which was not submitted in compliance with the Local Rules of the Medina County Court of Common Pleas, Domestic Relations Division ("Loc.R."), specifically Loc.R. 8.01. This Court agrees. {¶ 13} This Court has stated: "We acknowledge that local rules, not in derogation of a statute, are to be adhered to by the court. Although local rules are of the court's own making, the preferred course of action is for the court to amend its rules rather than ignore them. However, we also recognize that local rules are of the court's own making, procedural in nature, and not substantive principles of law. Accordingly, it has been held that there is no error when, in its sound discretion, the court decides that the peculiar circumstances of a case require deviation from its own rules." Yanik v. Yanik, 9th Dist. No. 21406, 2003-Ohio-4155, at ¶ 9, quoting Lorain Cty. Bank v. Berg (July 22, 1992), 9th Dist. No. 91CA005183. Accordingly, this Court reviews the trial court's interpretation or application of its local rules for an abuse of discretion. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or *Page 6 unconscionable in its ruling. Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219. {¶ 14} Loc.R. 8.01 addresses the preparation of judgment entries and states: "Except as otherwise provided, the Court may order or direct either party or counsel to prepare and present for journalization a judgment entry. Such party or counsel shall prepare a proper entry and submit same to the opposing party or counsel. The opposing party or counsel shall have five (5) days to approve or reject the judgment entry. In the event of rejection, the opposing party or counsel shall file with the Court, at the time of such rejection, either a written statement of the objections to the proposed entry or that party's own proposed entry. This subsection shall not apply to uncontested matters where the opposing party has made no answer or appearance, or dissolution of marriage. "Upon the failure of the opposing party or counsel to approve or reject any submitted judgment entry as provided, the preparer of the entry may unilaterally present the entry to the Court for journalization with a certification thereon that the provisions of Loc.R. 8.01 have been complied with." {¶ 15} At the settlement hearing, the trial court set out the procedure for finalization of this matter, stating: "[Y]ou are not yet divorced until such time that the Judgment Entry reflecting your settlement * * * is submitted to each of you for your signature, back to your attorneys, and the attorneys send it on to me for my review, signature, and filing with the Clerk of Courts." In this way, the trial court effectively directed counsel to prepare and present a judgment entry for journalization, thereby implicating the provisions of Loc.R. 8.01. {¶ 16} Wife's counsel prepared a judgment entry and submitted it to Husband's counsel on April 18, 2007. On April 23, 2007, pursuant to Loc.R. 8.01, *Page 7 Husband indicated his rejection of the judgment entry by filing a written statement of his objection to the proposed entry by asserting that he disagreed with the terms incorporated in the settlement. Husband requested that the trial court stay approval and filing of any judgment entry until a transcript of the settlement proceedings could be prepared and those terms incorporated into a judgment entry reflecting same. Husband properly served Wife with a copy of his motion to incorporate the terms enunciated during the settlement proceedings into the judgment entry. {¶ 17} Nevertheless, on May 3, 2007, Wife filed a notice of submission of the judgment entry, certifying that the submission was in compliance with Loc.R. 8.01. On May 7, 2007, Husband filed an objection to the notice of submission of the judgment entry, in part for the reason that its submission was not in compliance with Loc.R. 8.01, as he had rejected it by filing a written statement of his objection. Although the trial court scheduled a hearing on Husband's objection to the notice of submission of the judgment entry for May 24, 2007, it nevertheless approved and journalized the final judgment decree submitted by Wife over Husband's objections on May 9, 2007. By doing so, the trial court disregarded the import of Loc.R. 8.01 by allowing one party to circumvent the protections of a rule designed to facilitate judicial economy, while ensuring that both parties received the benefit of their agreed and anticipated resolution. *Page 8 {¶ 18} The trial court in this case was explicit in its assertion that, in the case of any dispute, the judgment entry must reflect the terms enunciated in the settlement transcript. By journalizing Wife's proposed judgment decree over Husband's objection that it did not reflect the settlement enunciated on the record, the trial court unreasonably entered judgment not in compliance with its local rules, thereby abusing its discretion in the application of Loc.R. 8.01. Husband's second assignment of error is sustained. ASSIGNMENT OF ERROR I "THE TRIAL COURT ABUSED ITS DISCRETION BY ENTERING A FINAL DIVORCE DECREE THAT DOES NOT CONFORM WITH THE TERMS OF THE PARTIES' IN-COURT SETTLEMENT AGREEMENT." ASSIGNMENT OF ERROR III "THE PROCEDURAL DEFICIENCIES THAT LED TO THE WRONGFUL SIGNING OF THE FINAL DIVORCE DECREE DENIED [HUSBAND] EQUAL PROTECTION UNDER THE LAW AND HIS DUE PROCESS RIGHTS TO CHALLENGE THE VALIDITY OF THE SEPARATION AGREEMENT UNDER CONTRACT LAW." {¶ 19} Husband argues that the trial court abused its discretion by entering a final divorce decree that did not conform to the terms of the parties' settlement agreement. He further argues that certain procedural deficiencies which led to the trial court's signing the final divorce decree denied him both equal protection and his right to due process in regard to his right to challenge the validity of the separation agreement. *Page 9 {¶ 20} Due to this Court's disposition of Husband's second assignment of error, this Court need not reach the merits of the first and third assignments of error, as they are now rendered moot. See App.R. 12(A)(1)(c). III. {¶ 21} Husband's second assignment of error is sustained. This Court declines to address the first and third assignments of error. Accordingly, the judgment of the Medina County Court of Common Pleas, Domestic Relations Division, is reversed and the cause remanded to the trial court for proceedings consistent with this opinion. Judgment reversed and cause remanded. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this *Page 10 judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to appellee. DONNA J. CARR FOR THE COURT WHITMORE, J. DICKINSON, J. CONCUR 1 This Court notes that the trial court had already entered a final judgment, so that it no longer had the jurisdiction or authority to amend that final judgment nunc pro tunc as ordered in this entry. Further, as a final judgment had been issued on May 9, 2007, purportedly resolving all issues in Husband's complaint and Wife's counterclaim, this Court is perplexed by the need for a subsequent "pretrial conference." *Page 1

2016-07-06 06:36:09.907403+00

OPINION {¶ 1} Defendant-appellant Jahmal Toland appeals his conviction and sentence in the Stark County Court of Common Pleas on one count of Unlawful Sexual Conduct with a Minor a felony of the fourth degree in violation of R.C. 2907.04. The plaintiff appellee is the State of Ohio. STATEMENT OF THE FACTS AND THE CASE {¶ 2} The appellant lived in the home of his father, his stepmother, his brother and sister, Diamond Crews, for several years beginning when the appellant was fourteen. (T. at 241). Appellant and Crews were raised as brother and sister. (T. at 165). Neither individual was informed that they were not, in fact, related until after Crews made these allegations. (T. at 182; 241). {¶ 3} In August of 2005, Crews accused the appellant of having sexual intercourse with her on three occasions. (T. at 147-48). When Crews' father found out about the accusation, he confronted the appellant, threw him to the ground, placed him in hand cuffs and beat him, before taking him to the Jackson Township Police Department. (T. at 269-70). {¶ 4} Appellant relocated to Cleveland after these allegations surfaced in August of 2005. (T. at 254). Approximately one month later appellant was confronted by three men in a car brandishing a gun. The men mentioned the victim by name. (T. at 246-47). {¶ 5} Detective Bobby Grizzard of the Massillon Police Department talked to appellant several times on the telephone and finally met with him in Cleveland. (T. at 235-36). Appellant confessed to one incident of sexual contact with Crews. At trial appellant testified that he confessed because he was afraid of Crews' father. (T. at 248). {¶ 6} Crews testified that the appellant had sex with her three times. (T. at 148). The first incident of sexual intercourse occurred when Crews was twelve and appellant was around twenty. Appellant, Crews and her two cousins were in the basement television room. Crews' two cousins fell asleep on the couch. Appellant and Crews were on the floor. Appellant got on top of Crews and pulled her shorts aside. He stuck his penis into her vagina. Crews tried to push him off but "never told him to stop." {¶ 7} The second incident of sexual intercourse occurred when Crews was thirteen and appellant was around twenty. Appellant and Crews were in the living room of her brother's house. Her brother's girlfriend and two children were sleeping upstairs. Crews was on one couch and appellant was on the other. Appellant came over and got on top of Crews. He started kissing Crews on her face and neck. Crews told appellant to get off her. Instead, he pulled her shorts aside and inserted his penis inside her. {¶ 8} The third act of sexual intercourse occurred when Crews was around thirteen and appellant was around twenty. They were watching television in the basement of their parents' house. Appellant got on top of Crews and, pulled her shorts aside and inserted his penis into her vagina. {¶ 9} When asked if the three incidents she had described were the only time appellant had "done anything like that," Crews described previous attempts by the appellant to touch her over and under her clothes when she was eight years old. (T. at 158). Defense Counsel did not object to these statements. (T. at 158). {¶ 10} Crews' mother found out about the sexual encounters in August, 2005: {¶ 11} "[CREWS] I told my cousin. My cousin told my aunt. My aunt told my mom and I was standing right there when she said it". (T. at 171). {¶ 12} Crews did not tell her parents sooner because she didn't want to get appellant in trouble. Appellant was her brother and she loved him. {¶ 13} During the trial, appellant's trial counsel objected to the testimony of Robin Tener, Ph.D. a clinical psychologist. The trial court excluded Dr. Tener's testimony pursuant to Evid. R. 702. Trial counsel stipulated to the admission of the psychologist's report as a joint exhibit. (T. at 200-218). {¶ 14} The appellant and four members of the jury pool, including Juror No. 134 are African Americans. (T. at 99-100). During the Court's questioning, Juror No. 134 asked whether this was a rape or an assault case. (T. at 39-40). Juror No. 134 also disclosed that two of his cousins had been convicted for similar charges but that this would not affect his ability to be fair and impartial. (T. at 40-41 ). {¶ 15} When the Prosecutor asked if anyone in the panel had any questions, Juror No. 132 asked the age of the alleged victim. (T. at 74). Juror No. 134 then inquired about the age of the appellant. (T. at 74). The Court called counsel to the bench and Defense Counsel expressed opposition to answering the question. (T. at 74-76). When Defense Counsel questioned the panel, Juror No. 134 made several comments regarding two films Counsel had mentioned during his voir dire. (T. at 86-87). At the close of voir dire, the Prosecutor moved to strike Juror No. 134. (T. at 108). Defense Counsel objected and raised the issue of purposeful exclusion based upon the juror's race. The prosecutor explained her reason for the challenge: {¶ 16} "[MS. WATSON] Your Honor, when he was being questioned what bothered me was that he was asking about the element of force in this case and I understand that that will be instructed later, but I think what bothered me more was he was attempting at least to ask about how old is that man, how old is this girls, as if perhaps that might make a difference to this decision, not the evidence that he would be presented with. There are two African-American individuals left on the jury as of now". (T. at 109). {¶ 17} The trial court found the State's reasoning "race neutral" and allowed the preemptory challenge. (T. at 108-10). {¶ 18} After the jury had begun deliberations, Juror No. 115 presented a note with two questions to the bailiff. (T. 303-04). Juror No. 115 was the foreperson of the jury. (T. at 308). At approximately the same time the Bailiff was informed that the jury had a verdict. (T. at 304). The Court wrote out an answer to each question, with approval of counsel, which was delivered to the jury. (T. at 306). The Court then informed Counsel that, when they indicated they had a verdict, the jury also sent a message stating that unless they were released from jury duty for the remainder of the week, they would "stall on their verdict." (T. at 306). Counsel agreed that the Court could inform the jury that they would not be needed after the verdict. (T. at 306-07). Before receiving the Court's response, the Jury indicated that it had a verdict "whether they had to come back or not." (T. at 307). {¶ 19} The jury found appellant guilty of one count of Unlawful Sexual Conduct with a Minor. The trial court scheduled appellant's sentencing hearing for May 17, 2006. The trial court sentenced appellant to a prison term of seventeen months and agreed to classify appellant as a sexually oriented offender. {¶ 20} Appellant filed a timely notice of appeal and raises the following five assignment of error for our consideration: {¶ 21} "I. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO USE A PEREMPTORY CHALLENGE IN A RACIALLY DISCRIMINATORY FASHION. {¶ 22} "II. THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE STATE TO INTRODUCE TESTIMONY OF OTHER ALLEGED ACTS BY THE APPELLANT. {¶ 23} "III. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. {¶ 24} "IV. THE APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL DUE TO JUROR MISCONDUCT. {¶ 25} "V. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL." I. {¶ 26} In his first assignment of error, the appellant maintains that the trial court failed to conduct a proper constitutional analysis as outlined in Batson v. Kentucky (1986), 476 U.S. 79 in determining that the State was not racially motivated in excluding an African American from the jury through the use of a peremptory challenge. See, Hicks v.Westinghouse Materials Co. (1997), 78 Ohio St. 3d 95, 98. {¶ 27} A defendant is denied equal protection of the law guaranteed to him by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution when the state places the defendant on trial before a jury from which numbers of the defendant's race have been purposely excluded. Strauder v. W. Virginia (1880),100 U.S. 303, 305; State v. Hernandez (1992), 63 Ohio St. 3d 577; State v.Bryant (1995), 104 Ohio App. 3d 512, 516. The "equal protection clause forbids a prosecutor from challenging potential jurors solely on account of their race or on the assumption that jurors of the same race as the defendant will be unable to impartially consider the state's case against the defendant." State v. Bryant, supra, 104 Ohio App. 3d 516;Batson v. Kentucky, supra, 476 U.S. at 89. {¶ 28} Whenever a party opposes a peremptory challenge by claiming racial discrimination "[a] judge should make clear, on the record, that he or she understands and has applied the precise Batson test when racial discrimination has been alleged in opposition to a peremptory challenge." Hicks v. Westinghouse Materials Co., supra,78 Ohio St. 3d at 99. {¶ 29} In Hicks, supra, the Ohio Supreme Court set forth theBatson test as follows: {¶ 30} "The United States Supreme Court set forth in Batson the test to be used in determining whether a peremptory strike is racially motivated. First, a party opposing a peremptory challenge must demonstrate a prima-facie case of racial discrimination in the use of the strike. Id. at 96, 106 S. Ct. at 1723, 90 L. Ed. 2d at 87. To establish a prima-facie case, a litigant must show he or she is a member of a cognizable racial group and that the peremptory challenge will remove a member of the litigant's race from the venire. The peremptory-challenge opponent is entitled to rely on the fact that the strike is an inherently `discriminating' device, permitting `those to discriminate who are of a mind to discriminate'. State v. Hernandez (1992), 63 Ohio St. 3d 577, 582, 589 N.E. 2d 1310, 1313, certiorari denied (1992), 506 U.S. 898, 113 S. Ct. 279, 121 L. Ed. 2d 206. The litigant must then show an inference of racial discrimination by the striking party. The trial court should consider all relevant circumstances in determining whether a prima-facie case exists, including all statements by counsel exercising the peremptory challenge, counsel's questions during voir dire, and whether a pattern of strikes against minority venire members is present. See, Batson at 96-97,106 S. Ct. at 1723, 90 L. Ed. 2d at 88. Assuming a prima-facie case exists, the striking party must then articulate a race-neutral explanation `related to the particular case to be tried.' Id at 95, 106 S. Ct. at 1724,90 L.Ed. 2d at 88. A simple affirmation of general good faith will not suffice. However, the explanation `need not rise to the level justifying exercise of a challenge for cause.' Id. at 97, 106 S. Ct. at 723,90 L. Ed. 2d at 88. The critical issue is whether a discriminatory intent is inherent in counsel's explanation for use of the strike; intent is present if the explanation is merely pretext for exclusion on the basis of race. Hernandez v. New York (1991), 500 U.S. 352, 363,111 S. Ct. 1859, 1868, 114 L. Ed. 2d 395, 409. 78 Ohio St. 3d. 98-9. {¶ 31} Although the prosecutor must present a comprehensible reason, "[t]he second step of this process does not demand an explanation that is persuasive or even plausible"; so long as the reason is not inherently discriminatory, it suffices. Purkett v. Elem (1995),514 U.S. 765, 767-768, 115 S.Ct. 1769. (per curiam); Rice v. Collins (2006),546 U.S. 333, 126 S.Ct. 969, 973-74. {¶ 32} Last, the trial court must determine whether the party opposing the peremptory strike has proved purposeful discrimination. Purkett v.Elem (1995), 514 U.S. 765, 766-767, 115 S. Ct. 1769, 1770. It is at this stage that the persuasiveness, and credibility, of the justification offered by the striking party becomes relevant. Id. at 768,115 S. Ct. at 1771. The critical question, which the trial judge must resolve, is whether counsel's race-neutral explanation should be believed.Hernandez v. New York, 500 U.S. at 365, 111 S. Ct. at 1869; State v.Nash (August 14, 1995), Stark County Court of Appeals, Case No. 1995 CA 00024. This final step involves evaluating "the persuasiveness of the justification" proffered by the prosecutor, but "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett, supra, at 768,115 S.Ct. 1769; Rice v. Collins, supra at 126 S.Ct. 974. {¶ 33} It is irrelevant how many minority jurors remain on the panel if even one is excluded on the basis of race. State v. Bryant, supra,104 Ohio App. 3d 512; State v. Tuck 80 Ohio App 3d 721, 724(Batson, applicable even if there is only one African-American juror on the panel); Jones v. Ryan (CA. 3, 1993), 987 F. 2d 960, 972; UnitedStates v. David (C.A. 11, 1986), 803 F. 2d 1567. {¶ 34} On direct appeal in federal court, the credibility findings a trial court makes in a Batson inquiry are reviewed for clear error.Hernandez v. New York, 500 U.S. 352, 364-366, 111 S.Ct. 1859,114 L.Ed.2d 395 (1991) (plurality opinion) (holding that evaluation of a prosecutor's credibility "lies `peculiarly within a trial judge's province' "). Rice v. Collins, supra at 126 S.Ct. 974. {¶ 35} In the case at bar, the trial court accepted appellant's prima-facie argument that the prosecutor's use of a peremptory challenge to exclude Juror No. 134 was purposefully discriminatory, and directed the prosecutor to explain her reasons for the peremptory strike.Hicks v. Westinghouse, supra, 78 Ohio St. 3d at 100; State v.Hernandez, supra, 63 Ohio St. 3d at 583; Hernandez v. New York, supra;State v. Nash, supra. {¶ 36} The prosecutor responded that she was concerned with Juror No. 134's questions concerning the ages of the alleged victim and the appellant, and the juror's question concerning the use of force. (T. at 109). {¶ 37} A review of the record establishes that Juror No. 134 also indicated that he had two cousins who had served time for charges involving sexual conduct. (Id. at 40). Juror 134 also engaged defense counsel in a discussion concerning reasonable doubt and how jurors can ignore that doubt and still convict the accused, as in the movie To Kill a Mockingbird. (T. at 86-87). {¶ 38} "The trial judge is best placed to consider the factors that underlie credibility: demeanor, context, and atmosphere. And the trial judge is best placed to determine whether, in a borderline case, a prosecutor's hesitation or contradiction reflect (a) deception, or (b) the difficulty of providing a rational reason for an instinctive decision. Appellate judges cannot on the basis of a cold record easily second-guess a trial judge's decision about likely motivation. These circumstances mean that appellate courts will, and must, grant the trial courts considerable leeway in applying Batson". Rice v. Collins, supra at 126 S.Ct. at 977. ( Breyer, J., concurring). {¶ 39} We do not find that the dismissal of Juror No. 134 was clearly erroneous. We find that the reason provided by the prosecutor prior to exercising a peremptory challenge to excuse Juror No. 134 was racially neutral. {¶ 40} Appellant's first assignment of error is overruled. II. {¶ 41} In his second assignment of error appellant contends that the testimony of prior acts of a sexual nature between himself and the alleged victim that had occurred four years prior to the incidents for which he was indicted were inadmissible as they did not come within the scope of Evid. R. 404 and R.C. 2945.59, which permits, for limited purposes, proof of other acts of a defendant in a criminal case. Specifically, testimony by the alleged victim that appellant would attempt to touch her over her clothes and sometimes under them, touching her thighs, chest and between her legs. (T. at 128). {¶ 42} At the outset we note that appellant's counsel did not object to the admission of this evidence. Because no objection was made to the testimony at the trial level, we must review this error under the plain error standard. {¶ 43} Crim. R. 52(B) provides that, "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." "Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice."State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus. In order to find plain error under Crim.R. 52(B), it must be determined, but for the error, the outcome of the trial clearly would have been otherwise. Id. at paragraph two of the syllabus. {¶ 44} In U.S. v. Dominguez Benitez (2004), 524 U.S. 74,124 S.Ct. 2333 the Court defined the prejudice prong of the plain error analysis. "It is only for certain structural errors undermining the fairness of a criminal proceeding as a whole that even preserved error requires reversal without regard to the mistake's effect on the proceeding. SeeArizona v. Fulminante, 499 U. S. 279, 309-310 (1991) (giving examples). {¶ 45} "Otherwise, relief for error is tied in some way to prejudicial effect, and the standard phrased as `error that affects substantial rights,' used in Rule 52, has previously been taken to mean error with a prejudicial effect on the outcome of a judicial proceeding. SeeKotteakos v. United States, 328 U. S. 750 (1946). To affect "substantial rights" . . . an error must have "substantial and injurious effect or influence in determining the . . . verdict." Kotteakos, supra, at 776." Id. at 2339. See, also, State v. Barnes (2002), 94 Ohio St.3d 21,759 N.E.2d 1240. {¶ 46} The defendant bears the burden of demonstrating that a plain error affected his substantial rights. United States v. Olano (1993), 507 U.S. at 725,734, 113 S.Ct. 1770; State v. Perry (2004),101 Ohio St.3d 118, 120 802 N.E.2d 643, 646. Even if the defendant satisfies this burden, an appellate court has discretion to disregard the error and should correct it only to `prevent a manifest miscarriage of justice.' "State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240, quotingState v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus. Perry, supra, at 118, 802 N.E.2d at 646. {¶ 47} Evid. R. 404(B) states: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In State v. Broom (1988), 40 Ohio St.3d 277, 533 N.E.2d 682, the Supreme Court held in addition to those reasons listed in the Rule, evidence of other bad acts may be admissible to prove identity. However, because Evid. R. 404(B), and R.C. 2945. 59, codify an exception to the common law with respect to evidence of other acts of wrongdoing, they must be construed against admissibility, and the standard for determining admissibility of such evidence is strict, Broom, syllabus by the court, paragraph 1. {¶ 48} In State v. Burson (1974), 38 Ohio St.2d 157, 311 N.E.2d 526, the Ohio Supreme Court made the following observation: "[n]owhere do the words `like' or `similar' appear in the statute. Prosecutors and trial courts should be particularly aware that evidence of other acts of a defendant if admissible only when it `tends to show' one of the matters enumerated in the statute and only when it is relevant to proof of the guilt of the defendant of the offense in question." Id. at 158,311 N.E.2d at 528. The Burson court further noted "[w]hen the purpose of evidence of other acts is to show the absence of mistake or accident on the part of the defendant in committing the offense charged, it must be shown that a connection, in the mind of the defendant, must have existed between the offense in question and the other acts of a similar nature. See State v. Moore (1948), 149 Ohio St. 226, 78 N.E.2d 365. The other acts of the defendant must have such a temporal, modal and situational relationship with the acts constituting the crime charged that evidence of the other acts discloses purposeful action in the commission of the offense in question. The evidence is then admissible to the extent it may be relevant in showing the defendant acted in the absence of mistake or accident." Id. at 159, 311 N.E.2d 528-29. {¶ 49} The admission of prior bad acts is deemed harmless unless there is some reasonable probability the evidence contributed to the accused's conviction, City of Columbus v. Taylor (1988), 39 Ohio St.3d 162,529 N.E.2d 1382. {¶ 50} Without extended discussion of the evidence, we should add that we believe the introduction of the other acts could not be considered truly prejudicial in any event. Even if admission of the prior acts could be considered erroneous, we would conclude, from a review of the entire record, that such error would be `harmless beyond a reasonable doubt.' Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824;Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726;Schneble v. Florida (1972), 405 U.S. 427, 92 S.Ct. 1056. {¶ 51} Based upon the record, we find that appellant has failed to demonstrate that a plain error affected his substantial rights. {¶ 52} Appellant's second assignment of error is overruled. III. {¶ 53} In his third assignment of error, appellant maintains that his conviction is against the weight and the sufficiency of the evidence. We disagree. {¶ 54} Our standard of reviewing a claim a verdict was not supported by sufficient evidence is to examine the evidence presented at trial to determine whether the evidence, if believed, would convince the average mind of the accused's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, State v. Jenks (1991), 61 Ohio St. 3d 259. {¶ 55} The Supreme Court has explained the distinction between claims of sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a question for the trial court to determine whether the State has met its burden to produce evidence on each element of the crime charged, sufficient for the matter to be submitted to the jury. {¶ 56} Because the trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1. {¶ 57} In State v. Thompkins (1997), 78 Ohio St.3d 380,678 N.E.2d 541, the Ohio Supreme Court held "[t]o reverse a judgment of a trial court on the basis that the judgment is not sustained by sufficient evidence, only a concurring majority of a panel of a court of appeals reviewing the judgment is necessary." Id., paragraph three of the syllabus. However, to "reverse a judgment of a trial court on the weight of the evidence, when the judgment results from a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required." Id., paragraph four of the syllabus;State v. Miller (2002), 96 Ohio St.3d 384, 2002-Ohio-4931 at ¶ 38,775 N.E.2d 498. {¶ 58} In the case at bar, appellant was convicted of Unlawful Sexual Conduct with a Minor in violation of R.C. 2907.04 which provides "[n]o person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard". {¶ 59} R.C. 2907.01(A) provides "'Sexual conduct'" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse." {¶ 60} Appellant is not contesting the evidence presented regarding his knowledge of the victim's age or that the victim was not his spouse. Appellant asserts the state failed to provide sufficient evidence showing that he engaged in sexual conduct with the victim. {¶ 61} Through the testimony of the victim, the state provided evidence regarding the three incidents that, when viewed in a light most favorable to the prosecution, were sufficient for a reasonable person to find appellant guilty of unlawful sexual conduct with a minor. {¶ 62} Viewing this evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that appellant had committed the crime of unlawful sexual contact with a minor. {¶ 63} We hold, therefore, that the state met its burden of production regarding each element of the crime of unlawful sexual contact with a minor and, accordingly, there was sufficient evidence to support appellant's conviction. {¶ 64} Appellant and the victim both testified regarding the events that occurred in this case. The victim claimed they engaged in sexual intercourse. Appellant testified that he confessed out of fear for his safety from members of the victim's family. We do not find that the jury created a manifest miscarriage of justice in choosing to believe the victim's version of the events. {¶ 65} Although appellant cross-examined the State's witnesses in an attempt to show the inconsistencies in the various statements and further in an attempt to demonstrate that the events did not occur, the jury was free to accept or reject any and all of the evidence offered by the appellant and assess the witness's credibility. "While the jury may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant's conviction against the manifest weight or sufficiency of the evidence".State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP-739, citingState v. Nivens (May 28, 1996), Franklin App. No. 95APA09-1236 Indeed, the jurors need not believe all of a witness' testimony, but may accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, at ¶ 21, citing State v. Antill (1964), 176 Ohio St. 61,67, 197 N.E.2d 548.; State v. Burke, Franklin App. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79 Ohio App.3d 667,607 N.E.2d 1096. Although the evidence may have been circumstantial, we note that circumstantial evidence has the same probative value as direct evidence. State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E. 2d 492. {¶ 66} We conclude the jury, in resolving the conflicts in the evidence, did not create a manifest miscarriage of justice so as to require a new trial. Viewing this evidence in a light most favorable to the prosecution, we further conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant committed the crime of unlawful sexual contact with a minor. R.C. 2907.04(A). Accordingly, appellant's conviction for Unlawful Sexual Contact with a Minor was not against the manifest weight of the evidence. {¶ 67} Appellant's third assignment of error is overruled. IV. {¶ 68} In his fourth assignment of error, appellant claims that his conviction should be reversed because of juror misconduct. Specifically, appellant claims that two questions of the jurors, which were not answered, demonstrate some dispute over the facts. This argument is without merit. {¶ 69} Appellant did not object or move for a mistrial. Accordingly, this error is subjected to a plain error review. {¶ 70} The jury is obligated to decide a case solely on the evidence, and any communication or contact outside the courtroom or jury room about the matter at trial between a juror and another person, and any independent inquiry or experiment by a juror concerning the evidence or the law, constitutes juror misconduct. State v. Taylor (1991),73 Ohio App.3d 827, 831, 598 N.E.2d 818. Further, when a juror refuses to consider the evidence or forms an opinion as to guilt or innocence before all the evidence is presented, such activity constitutes misconduct. Id. {¶ 71} In the present case, it is apparent that jury posed two questions at the break between the close of testimony and closing arguments. The questions were renewed sometime between the beginning of deliberations and the rendering of the verdict. The questions asked whether the victim had a history of promiscuity and the results of the [victim's] hospital stay. (T. at 305). The questions were inappropriate and the trial court refused to answer them. Appellant's trial counsel agreed that the questions should not be answered. (Id. at 305-306). The trial court also determined that the jury did not require responses to the questions before agreement on a verdict. (Id.). {¶ 72} The jury also informed the bailiff that while they had reached a verdict in less than one hour, they intended to "stall" delivering the verdict if it meant they would have to return for jury duty. However, a short time later the jurors further informed the bailiff that "they have a verdict regardless of whether they have to come back or not." (T. at 307). {¶ 73} The questions and comments are not the result of an independent inquiry by the jury, and was not the result of any communication or contact with one of the parties to the litigation. Thus, the error in the instant case is more appropriately defined as an irregularity in the proceedings, and appellant must demonstrate that the error prevented him from having a fair trial. State v. Combs, 5th Dist. No. 2001CA00222, 2002-Ohio-1136. {¶ 74} In United States v. Gaitan-Acevdo (1998), 148 F.3d 577, the Court of Appeals for the Sixth Circuit held that reversal was not warranted on grounds of juror misconduct, even though evidence suggested that jurors had discussed the case, contrary to court's instruction, by commenting on the number of cars owned by one defendant and the government's style of examination, and joking about convicting the defendant so they could go home, given that jurors' comments did not evidence actual bias. Id. at 590-91. The Court noted "[a]bsent additional evidence, whether concrete or circumstantial, and assuming the district court was in the best position to assess the significance of the jurors' comments, we cannot accept the defendants' speculation about juror statements as proof of impartiality". Id. {¶ 75} In the case at bar, the trial judge prepared a written response informing the jurors that they had all of the evidence and that it would not answer the questions. (T. at 304-306). Both counsel agreed to the trial court's response. The comments concerning the jurors desire to be released from further jury duty came after the jury had reached its verdict. Appellant fails to explain how the comments could have affected the verdict as it had already been reached. {¶ 76} Appellant has not demonstrated that he was denied a fair trial by the conduct of the jurors. {¶ 77} Appellant's fourth assignment of error is overruled. V. {¶ 78} In his fifth assignment of error, appellant argues that he was denied effective assistance of trial counsel. {¶ 79} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry in whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364,113 S.Ct. 838; Strickland v. Washington (1984), 466 U.S. 668,104 S.Ct. 2052; State v. Bradley (1989), 42 Ohio St.3d 136. {¶ 80} In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Bradley, 42 Ohio St. 3d at 142. Because of the difficulties inherent in determining whether effective assistance of counsel was rendered in any given case, a strong presumption exists that counsel's conduct fell within the wide range of reasonable, professional assistance. Id. {¶ 81} In order to warrant a reversal, the appellant must additionally show he was prejudiced by counsel's ineffectiveness. This requires a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Bradley, supra at syllabus paragraph three. A reasonable probability is a probability sufficient to undermine confidence in the outcome. {¶ 82} The United States Supreme Court and the Ohio Supreme Court have held a reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Bradley at 143, quotingStrickland at 697. Accordingly, we will direct our attention to the second prong of the Strickland test. {¶ 83} Without specifically identifying in the record purported instances of error, appellant asserts that trial counsel's failure to object to "hearsay statements and conclusions in a report of a psychologist which was admitted as a joint exhibit" constitutes ineffective assistance of counsel. In the case at bar, appellant does not specifically identify any statement contained in the report of the psychologist that he contends was prejudicial to him. The sole reference to statements contained in the report is that the victim was "plagued by guilt and anxiety as a result of her involvement in these activities." (Appellant's Brief at 3; T. at 213-14). Because appellant fails to properly reference portions of the record supporting his claim that defense counsel's failure to object constitutes error, appellant cannot demonstrate these claimed instances of error. See Daniels v.Santic, Geauga App. No. 2004-G-2570, 2005-Ohio-1101, at ¶ 13-15. See, also, App.R. 12(A) (2) and 16(A) (7); Graham v. City of Findlay PoliceDept. (Mar. 19, 2002), Hancock App. No. 5-01-32 (stating that "[t]his court is not obliged to search the record for some evidence of claimed error. * * * Rather, an appellant must tell the appellate court specifically where the trial court's alleged errors may be located in the transcript"); State ex rel. Physicians Commt. for ResponsibleMedicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288,2006-Ohio-903, at ¶ 13; State ex rel. Petro v. Gold,166 Ohio App.3d 371, 2006-Ohio-943, at ¶ 94, appeal not allowed, 110 Ohio St.3d 1439,2006-Ohio-3862, reconsideration denied, 111 Ohio St.3d 1418,2006-Ohio-5083; Porter v. Keefe, Erie App. No. E-02-018, 2003-Ohio-7267, at ¶ 109-113. {¶ 84} In the alternative, we would note that the record in the case at bar clearly evidences trial counsel's tactical decision to submit the report of the psychologist. (T. at 197-218). Trial counsel acknowledged that "[t]here is bad and good in that report." (T. at 215). Counsel further stated: "Judge, life is a double edged sword in this case." (Id. at 216-217). {¶ 85} The Ohio Supreme Court has stated "[w]e will ordinarily refrain from second-guessing strategic decisions counsel make at trial, even where counsel's trial strategy was questionable. State v. Clayton (1980), 62 Ohio St.2d 45, 49, 16 O.O.3d 35, 402 N.E.2d 1189." State v.Myers (2002), 97 Ohio St.3d 335, 362, 780 N.E.2d 186, 217. TheSixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell, supra, at 702, 122 S.Ct. 1843;Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland, supra, at 689, 104 S.Ct. 2052; United States v.Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)."Yarborough v. Gentry (2003), 540 U.S. 1, 8, 124 S.Ct. 1, 6. {¶ 86} The sole statement contained in the psychologist's report cited by appellant is insufficient to demonstrate prejudice. {¶ 87} Appellant cites trial counsel's failure to object to other acts evidence as further evidence of counsel's ineffectiveness. In light of our disposition of appellant's second assignment of error, appellant was not prejudiced by his trial counsel's failure to object to evidence of other acts. {¶ 88} None of the instances raised by appellant rise to the level of prejudicial error necessary to find that he was deprived of a fair trial. Having reviewed the record that appellant cites in support of his claim that he was denied effective assistance of counsel, we find appellant was not prejudiced by defense counsel's representation of him. The result of the trial was not unreliable nor was the proceedings fundamentally unfair because of the performance of defense counsel. {¶ 89} Appellant's fifth assignment of error is overruled. {¶ 90} For the foregoing reasons, the judgment of the Stark County Court of Common Pleas is affirmed. By Gwin, P.J., Farmer, J., and Wise, J., concur JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Stark County Court of Common Pleas is affirmed. Costs to appellant.

2016-07-06 06:36:09.995106+00

OPINION {¶ 1} Plaintiffs-appellants, Warner C. Blow and Kathy P. Nunamaker (collectively "appellants"), appeal from the judgment of the Franklin County Court of Common Pleas denying their motion for summary judgment, and granting summary judgment in favor of defendants-appellees, Monument Square Managers, G. Michael Major, and Joseph Recchie (collectively "appellees"). {¶ 2} The following summary of facts is drawn from the record. In 1983, Monument Square Ltd. ("the Partnership") was formed as an Ohio limited partnership. The Partnership owned and operated real estate and the structures thereon. The Partnership's general partner was an Ohio general partnership, Monument Square Managers ("Managers"). Managers' partners included G. Michael Major ("Major") and J. Recchie ("Recchie"). The Partnership was governed by a written Limited Partnership Agreement ("Partnership Agreement"). To raise capital to fund its operations, the Partnership raised money, in part, through the issuance of promissory notes to its limited partners, including appellants. Three such promissory notes issued in 1988 and 1989 to appellants by the Partnership, acting through its general partner, are the subject of this appeal. {¶ 3} On December 2, 2003, appellants filed suit against the Partnership, Pelton Wheeler,1 and appellees alleging default by the Partnership on the three promissory notes. Appellants' complaint also alleged liability of Managers as the general partner of the Partnership and liability of Major and Recchie as general partners of Managers.2 Arguing that the Partnership's liability on the promissory notes should, as a matter of statutory liability of general partners, be extended to Managers, Major and Recchie, appellants moved for summary judgment on September 3, 2004. Appellees filed a memorandum contra and a cross-motion for summary judgment asserting that the Partnership Agreement precludes appellants from recovering the amounts due on the promissory notes from appellees. Additionally, appellees argued the doctrine of laches also precludes appellants' recovery on the notes from appellees. {¶ 4} The trial court found that appellants' claims were clearly barred by the terms of the Partnership Agreement and granted judgment in favor of appellees and against appellants. Regarding appellees' laches argument, the trial court found that it did not have sufficient evidence before it so as to conclude that all the elements of the laches doctrine had been satisfied. Appellants timely appeal, and bring the following single assignment of error for our review: THE TRIAL COURT ERRED WHEN IT HELD THAT A PROVISION OF A LIMITED PARTNERSHIP THAT UNDER CERTAIN CIRCUMSTANCES INSULATED GENERAL PARTNERS FROM LIABILITY TO LIMITED PARTNERS LIKEWISE INSULATED THE GENERAL PARTNERS FROM LIABILITY WHERE THE LIMITED PARTNERSHIP DEFAULTED ON LOANS MADE TO IT BY LIMITED PARTNERS IN THEIR INDIVIDUAL CAPACITIES. {¶ 5} Summary judgment standards are well established. Civ.R. 56(C) states that summary judgment shall be rendered forthwith if "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Summary judgment is a procedural device to terminate litigation, so it must be awarded cautiously with any doubts resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992),65 Ohio St.3d 356, 358-359. {¶ 6} Accordingly, summary judgment is appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment No. 06AP-22 as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Tokles Son, Inc. v. Midwestern Indemn.Co. (1992), 65 Ohio St.3d 621, 629, citing Harless v. Willis DayWarehousing Co. (1978), 54 Ohio St.2d 64, 65-66. {¶ 7} The party moving for summary judgment bears the burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact regarding the essential elements of the claims presented. Dresher v. Burt, (1996), 75 Ohio St.3d 280, 292-293. Conclusory assertions that the nonmoving party cannot prove its case are not sufficient to discharge this initial burden. Id. at 293. Similarly, once the burden is satisfied, one cannot prevent summary judgment by merely restating unsubstantiated allegations contained within the original pleadings. Instead, the nonmoving party must demonstrate the continued existence of a genuine issue of material fact by directing the court's attention to relevant, affirmative evidence of the type listed in Civ.R. 56(C). Id., citing Civ.R. 56(E). {¶ 8} Appellate review of summary judgment is de novo. Koos v.Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588; MidwestSpecialties, Inc. v. Firestone Tire Rubber Co. (1988),42 Ohio App.3d 6, 8. We stand in the shoes of the trial court and conduct an independent review of the record. As such, we must affirm the trial court's judgment if any of the grounds raised by the movant at the trial court are found to support it, even if the trial court failed to consider those grounds. See Dresher, supra; Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42. {¶ 9} It is undisputed that three promissory notes were tendered to appellants by the Partnership. It is also undisputed that the notes are in default, and the Partnership is liable to appellants for the amounts stated in those notes. However, with the Partnership insolvent, the issue, as alleged by appellants, is whether or not liability for the notes can be imposed upon appellees. The trial court found that pursuant to the Partnership Agreement, such liability could not be compelled. Under their single assignment of error, appellants contend the trial court erred in applying the Partnership Agreement to the promissory notes at issue, and finding that Managers, Major and Recchie are insulated from personal liability on the notes issued by the Partnership. {¶ 10} Chapter 1782 of the Ohio Revised Code governs limited partnerships. R.C. 1782.24 provides: (A) Except as otherwise provided in this chapter, the partnership agreement, or section 1339.65 of the Revised Code, a general partner of a limited partnership shall have all the rights and powers and be subject to all the restrictions and liabilities of a partner in a partnership without limited partners. (B) Except as otherwise provided in this chapter, a general partner of a limited partnership has the liabilities of a partner in a partnership without limited partners to persons other than the partnership and the other partners. Except as otherwise provided in this chapter or the partnership agreement, a general partner of a limited partnership has the liabilities of a partner in a partnership without limited partners to the partnership and to the other partners. {¶ 11} The Partnership Agreement at issue provides, at Paragraph 7(e): All expenses incurred by the General Partner on behalf of the Partnership shall be paid by the Partnership. The General Partner shall not be liable to the Partnership nor to the Limited Partners for any loss or liability incurred in connection with any act performed or omitted, nor for negligence or any other matter, except for any loss or liability incurred in connection with the willful misconduct or gross negligence of the General Partner. {¶ 12} The trial court found that because appellants were limited partners, pursuant to the Partnership Agreement, appellees were not personally liable to appellants. According to appellants, this finding is in error because appellants acted, not as limited partners, but as lenders in their individual capacities when they loaned money to the Partnership, and therefore, R.C. 1782.07 applies. R.C. 1782.07, provides: Except as provided in the partnership agreement, a partner may lend money to and transact other business with the limited partnership and, except as otherwise provided by law, has the same rights and obligations with respect to such loans and transactions as a person who is not a partner. {¶ 13} Thus, as argued by appellants, the fact that they are lenders and limited partners is of no legal consequence, and Paragraph 7(e) of the Partnership Agreement is not applicable in this instance. {¶ 14} To the contrary, appellees assert that both subsections (A) and (B) of R.C. 1782.24 expressly provide that the liabilities of a general partner to the partnership and the other partners may be established in a Partnership Agreement, and R.C. 1782.07 contemplates that partnership agreement provisions will govern the parties' rights and liabilities. We agree, as the statute uses the phrase "except as otherwise provided in the partnership agreement," or words of similar import. {¶ 15} R.C. 1782.07 does permit limited partners to lend money to the partnership and be treated as third-party lenders rather than limited partners. However, it is equally clear that when read in pari materia, as is required, R.C. 1782.07 and 1782.24 permit a Partnership Agreement to establish the liabilities of a general partner to the partnership as No. 06AP-22 well as the other partners. "[R]elations between partners are governed by the terms of the partnership agreement, provided such terms are not in conflict with a statute or with public policy considerations." Leigh v. Crescent Square (1992), 80 Ohio App.3d 231,234-235. Thus, we find paragraph 7(e) of the Partnership Agreement is applicable to the promissory notes at issue. {¶ 16} Paragraph 7(e) of the Partnership Agreement states that the general partners "shall not be liable to * * * the Limited Partners forany loss or liability incurred in connection with any act performed or omitted, nor for negligence or any other matter." (Emphasis added.) The only exception to this provision is in the instance of willful misconduct or gross negligence, neither of which are evidenced, nor alleged in the matter before us. {¶ 17} Thus, we find that the Partnership Agreement precludes liability of Managers, Major and Recchie for the notes at issue, and the trial court was correct in its determination that appellees were entitled to judgment as a matter of law, and appellants, contrarily, were not. Consequently, we overrule appellants' single assignment of error. {¶ 18} For the foregoing reasons, appellants' single assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed. Judgment affirmed. 1 Defendant Wheeler has been voluntarily dismissed from this action and is not part of this appeal. 2 While there were additional claims alleged in the complaint, they have been voluntarily dismissed.

2016-07-06 06:36:10.0533+00

OPINION This is a habeas corpus action in which petitioner, Frank A. Butcher, Jr., seeks his immediate release from the Lake Erie Correctional Institution. As the sole basis for his prayer for relief, petitioner asserts that his present incarceration is illegal because the trial court in the underlying criminal case has failed to give him proper jail-time credit for a period of time he allegedly served in a community-based correctional facility. For the following reasons, this court concludes that his habeas corpus petition does not state a viable claim. In support of his prayer for relief, petitioner has made the following factual allegations: (1) in August 1997, petitioner was convicted in the Lorain County Court of Common Pleas of two offenses and was sentenced to an aggregate term of two years in a state prison; (2) after petitioner had served approximately seven months of his sentence, the Lorain court granted his motion for judicial release and suspended the remainder of his sentence; (3) as part of his community control, petitioner was ordered to complete an alcohol abuse program at a community-based correctional facility; (4) upon completing the program in July 1999, petitioner was released from the facility and remained free on judicial release until January 2000, when the Lorain court found him guilty of a violation of his community control; (5) as part of the violation judgment, the Lorain court ordered that petitioner be returned to prison to complete his original sentence and that he be given credit for time served; and (6) in March 2001, petitioner moved the Lorain court to award him an additional one hundred thirty-one days of jail credit, but the court overruled the motion in a separate judgment entry. In arguing in his petition that he is now entitled to be released, petitioner asserts that the one hundred thirty-one days referenced in his motion before the Lorain court covered the time period in which he was in the community-based correctional facility, and that the Lorain court was obligated under Ohio law to give him jail-time credit for this period. He further asserts that if the Lorain court had given him the proper credit, he would have already served his two-year sentence and, accordingly, would be entitled to leave the prison. As a general proposition, a writ of habeas corpus will lie only when a person's unlawful restraint is predicated upon a judgment which the trial court did not have jurisdiction to issue. Wilson v. Rogers (1993),68 Ohio St.3d 130, 131. As a result, a habeas corpus action cannot be employed to contest non-jurisdictional errors in a criminal proceeding, such as whether a double jeopardy violation has occurred. Id. The only exception to the foregoing rule is that the writ will be allowed when the unlawful restraint is based on a non-jurisdictional error for which there is no adequate legal remedy. State ex rel. Pirman v. Money (1994),69 Ohio St.3d 591, 593. In the instant case, petitioner has not raised any issue concerning the Lorain court's jurisdiction to proceed in the underlying matter. Instead, he merely asserts that the Lorain court erred in denying his motion for additional jail-time credit. Thus, the petition before this court can only state a viable claim if petitioner did not have an adequate legal remedy in regard to the credit issue. In Heddleston v. Mack (1998), 84 Ohio St.3d 213, the petitioner brought a habeas corpus action after the trial court had denied his motion to recalculate his jail-time credit. In upholding the dismissal of the habeas corpus petition, the Supreme Court of Ohio held that the petition was not viable because the petitioner had an adequate remedy through an appeal of the denial of his motion to recalculate. See, also, King v.Mitchell (Aug. 15, 1997), Trumbull App. No. 97-T-0033, unreported, 1997 Ohio App. LEXIS 3666, in which this court held that a habeas corpus action cannot be used to challenge a trial court's calculation of jail-time credit. In the instant case, petitioner argues that an appeal from the Lorain court's March 2001 judgment would not have constituted an adequate remedy under the facts of this case because the Lorain appellate court could not have rendered a decision before the "extra" one hundred thirty-one time period had already concluded. As to this point, this court would note that if petitioner had brought his motion for additional credit in a more timely manner, he would have had ample time in which to seek appellate review. When the Lorain court revoked petitioner's community control in January 2000, it did state in its judgment that petitioner should be given credit for time served; however, the court did not indicate how much credit petitioner should receive. Under these circumstances, petitioner should have immediately moved the Lorain court to make the calculation so that the dispute could be settled before the end of his prison term became near. Instead of doing this, petitioner waited to file his motion for additional credit until his term, minus the disputed one hundred thirty-one days, was nearly completed. As a result, it was petitioner's own dilatory behavior which has made an appeal from the judgment of the Lorain court an "inadequate" remedy for petitioner's purposes in this case. In considering the "adequate remedy" element in the context of a mandamus action, the Supreme Court has held that the failure to pursue a possible remedy, such as an appeal, in a timely manner does not render the remedy inadequate for purposes of satisfying this element. See State exrel. Schneider v. Bd. of Edn. of North Olmsted City School Dist. (1992),65 Ohio St.3d 348, 350. Obviously, this logic would also be applicable to the "adequate remedy" element of a habeas corpus claim. Given that petitioner could have litigated the credit issue in an appeal from the Lorain court's judgment if he had filed his motion for additional credit immediately after his community control had been revoked, he cannot use a habeas corpus action as a substitute for using the appropriate procedure. Pursuant to the foregoing analysis, this court concludes that, even when the allegations in the instant habeas corpus petition are construed in a manner most favorable to petitioner, those allegations readily indicate that petitioner cannot satisfy the basic elements of a habeas corpus claim. Thus, because petitioner has failed to state a viable claim for the requested relief, it is the sua sponte order of this court that the habeas corpus petition is hereby dismissed.

2016-07-06 06:36:10.22611+00

OPINION. We have sua sponte removed this cause from the accelerated calendar. {¶ 1} In six assignments of error, defendant-appellant Daniel James Campbell appeals from the conviction and sentence imposed, after a jury trial, for two counts of aggravated arson. The first aggravated-arson count alleged that Campbell had knowingly created a substantial risk of serious physical harm to his girlfriend, Stacy Porter, by pouring lighter fluid on her and igniting it. The second count alleged that he had also knowingly caused serious physical harm to his apartment — an occupied structure — by means of the fire spreading to the dwelling. The jury acquitted Campbell of an attempted-murder charge. The trial court sentenced Campbell to consecutive prison terms, one for ten years and the other for eight years. {¶ 2} The trial took place following this court's reversal of a previous jury-trial conviction. See State v. Campbell, 1st Dist. Nos. C-010567 and C-010596, 2002-Ohio-1143. The reversal was predicated upon our determination that a fire-division investigator's expert testimony that Campbell had poured lighter fluid on Porter and set her on fire was not reliable and was therefore inadmissible. See id. The prior defects in the investigator's testimony were not present in the retrial, and we affirm the judgment of the trial court. FACTS {¶ 3} In early 2001, Cincinnati fire fighters responded to extinguish a fire at Campbell's apartment. Firefighters found Campbell and Porter in the hallway outside the apartment. Porter was lying on her side and had extensive third-degree burns over her upper body. She was placed in an ambulance. Campbell sat in the front passenger seat and told the driver that "they were mixing some chemicals" and "that he was surprised at how quickly they went up in flames." This began Campbell's frequent changes in the explanation of the fire's cause and origin that he would give to investigators. No fewer than eight times he altered his account of the events, modifying whether he left the apartment in search of a sandwich for Porter, whether he purchased the sandwich or found it in his hallway, whether he had met friends on the trip, whether he had rescued Porter from the flames, and whether he had performed cardiopulmonary resuscitation on her. In none of Campbell's versions of the events was he away from the apartment for more than fifteen minutes. {¶ 4} Porter and nine other witnesses testified for the state. Porter's mother testified that her daughter had a low I.Q., suffered from impulse-control disorder, and had a history of psychiatric hospitalizations. Porter, after being found competent as a witness, took the stand and gave a confused and often contradictory account of how the fire had started. She did state that Campbell had poured lighter fluid on her shirt and then ignited it. {¶ 5} Lt. Wolf, an experienced fire-division investigator also testified about the origins and cause of the fire. His testimony was that Porter's explanation that Campbell had ignited her clothing was consistent with the results of his investigation. A medical expert testified about the possible causes and the extent of Porter's burns. {¶ 6} Fourteen defense witnesses testified at trial; Campbell took the stand in his own defense. He denied starting the fire and could offer no explanation for its cause. EXPERT TESTIMONY {¶ 7} In his first assignment of error, Campbell asserts, as he successfully did in the first appeal, that the trial court erred by overruling his objection to the fire investigator's expert opinion on the cause of the fire. Campbell claims that Lt. Wolf's opinion that Campbell had started the fire was based solely on his interview of Porter conducted three weeks after the fire. Since Lt. Wolf relied upon Porter's statement to reach his conclusion about the cause of the fire, Campbell argues that the opinion was admitted without an adequate foundational showing of reliability and was thus not admissible. He asserts that admitting Lt. Wolf's testimony improperly bolstered the credibility of Porter's testimony and improperly usurped the evidence-weighing function of the jury. {¶ 8} As noted in the discussion section of State v. Campbell, expert opinions based upon matters outside the jury's knowledge and expertise that assist the jury in determining a fact in issue or understanding the evidence are admissible at trial. See, also, Evid.R. 702. Lt. Wolf was well qualified as an expert in the area of fire investigation and in the determination of the origin and the cause of fires. Here, Lt. Wolf's experience and training assisted the jury in reaching conclusions about the origin of the fire on the right side of Campbell's couch, that electricity was not a cause of fire, and that if Campbell or Porter had dropped a lit cigarette, it would have taken longer than fifteen minutes to create a fire. These opinions were admissible. {¶ 9} In the first trial, Lt. Wolf stated affirmatively and with little explanation, "My opinion is that Danny Campbell had poured lighter fluid on Stacy Porter and set her on fire and she caught the couch on fire." In the retrial, Lt. Wolf's testimony was not based solely upon Porter's statement made to him in the hospital three weeks after the fire. Lt. Wolf testified that he had investigated and had eliminated all natural causes for the fire, including electrical sparking, gas-line leakage, and lightning strike. Based on the physical evidence found at the scene and interviews with the firefighters and other witnesses, Lt. Wolf testified that the burn pattern in the apartment looked like an open-flame fire that had been started by a match, a candle, or a similar item, and that it had originated on the right side of the living-room couch. He eliminated a burning cigarette as a cause of the fire based on reports of Campbell's claim that he had been away from the apartment for only a short time before the fire started. He admitted that he had not seen any burn patterns to indicate that a flammable liquid had been placed on the floor or on the couch. There was no lighter fluid or chemicals found in the apartment. {¶ 10} Lt. Wolf then testified that he was able to interview Porter in the hospital after the ventilation tube was removed from her throat about three weeks after the fire. Over objection, Lt. Wolf told the jury that Porter had told him that Campbell "sprayed lighter fluid on her, on her shirt." Lt. Wolf then stated that after the Porter interview "we basically reviewed all our data again. We felt that that was consistent. * * * We look at all that data that we have, and that's very consistent with what we found at that fire scene." Porter's statement to Lt. Wolf was hearsay. It did not qualify as a non-hearsay statement under Evid.R. 801(D)(1)(c), which provides that a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination, and if the statement relates to the identification of a person, soon after perceiving him. See, e.g., State v. McCurdy, 1st Dist. No. C-020808, 2003-Ohio-5518, at ¶ 8. But its admission was not in itself reversible error. Porter had relayed the same events to the jury before Lt. Wolf gave his testimony. {¶ 11} Conceding that the statement is hearsay, however, does not disqualify Lt. Wolf's opinion. "Where an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement of Evid.R. 703 has been satisfied." State v. Solomon (1991),59 Ohio St.3d 124, 570 N.E.2d 1118, syllabus. Unlike in the first trial, there was a sufficient basis for the trial court to admit the expert opinion. Lt. Wolf made no unequivocal statement that Campbell had started the fire by igniting Porter's clothing. Rather, he told the jury that the state's theory of the case was consistent with the physical evidence, with Porter's statement and with those of the other witnesses. Based on all the facts Lt. Wolf had gathered, he believed that the cause of the fire was consistent with Campbell pouring lighter fluid on Porter and setting her on fire, and then Porter spreading the fire to the couch. He testified that his conclusion was also consistent with his findings at the scene. Campbell vigorously cross-examined Lt. Wolf, highlighting weaknesses in the investigation and discussing other possible causes for the fire. Unlike in the first trial, Lt. Wolf's testimony was admitted upon an adequate foundational showing that the principles or techniques underlying his testimony were reliable. While his testimony may have bolstered the credibility of Porter's account of how the fire had started, it did not improperly do so. The testimony was reliable and did not usurp the jury's functions. The first assignment of error is overruled. ALLIED OFFENSES {¶ 12} In his second assignment of error, Campbell complains that the sentences for the two aggravated-arson counts should have been merged because the arsons were allied offenses of similar import committed with one animus and involving a single course of conduct. See R.C. 2941.25. The aggravated-arson statute, R.C. 2909.02(A), provides, in part, "No person, by means of fire or explosion, shall knowingly do any of the following: (1) Create a substantial risk of serious physical harm to any person other than the offender; (2) Cause physical harm to any occupied structure * * *." In counts two and three, Campbell was charged under subsections (A)(1) and (A)(2), respectively. {¶ 13} A strict comparison-of-the-statutory-elements test is now used to determine whether offenses are allied and of similar import. SeeState v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699, paragraph one of the syllabus; see, also, State v. Stern (2000),137 Ohio App.3d 110, 116, 738 N.E.2d 76. If the two offenses each contain a separate element, the offenses are of dissimilar import and the court's inquiry ends — the multiple convictions are proper. See State v.Rance, 85 Ohio St.3d at 636, 1999-Ohio-291, 710 N.E.2d 699. {¶ 14} Here, considered in the abstract, aggravated arson as charged in count two required proof that, in setting the fire, Campbell created a substantial risk of serious physical harm to a person. But the conviction for count three required proof that Campbell caused physical harm to any occupied structure. See R.C. 2909.02(A). Aligning the statutorily defined elements of each crime in the abstract, we hold that each offense required proof of an element that the other did not, and that they were not allied offenses of similar import. See State v.Rance, 85 Ohio St.3d at 638, 1999-Ohio-291, 710 N.E.2d 699. Because the offenses were of dissimilar import, separate sentences were permissible. The second assignment error is overruled. MOTION FOR A NEW TRIAL {¶ 15} In his third assignment of error, Campbell argues that the trial court erred in overruling his motion for a new trial. See R.C.2945.79 and Crim.R. 33. In support of the motion, Campbell presented the affidavit of Stuart Gregory, in which he stated that Porter had told him, after the trial, that she did not remember how the fire had started. {¶ 16} A new trial may be granted on the basis of newly discovered evidence if the movant shows that the evidence "(1) [d]iscloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence." Statev. Petro (1947), 148 Ohio St. 505, 76 N.E.2d 370, syllabus. A motion for a new trial is directed to the sound discretion of the trial court, and the court's decision will not be reversed on appeal in the absence of an abuse of discretion. See State v. Schiebel (1990), 55 Ohio St.3d 71,564 N.E.2d 54, paragraph one of the syllabus. {¶ 17} After reviewing the record, including the trial transcript and the affidavit supporting Campbell's motion for a new trial, we conclude that the trial court did not abuse its discretion in ruling that the Petro requirements were not all satisfied. Campbell's argument for a new trial based on newly discovered evidence failed to meet the requirements in two ways: (1) the evidence was merely cumulative, and (2) it tended merely to impeach or contradict the former evidence. {¶ 18} At trial, Porter's own testimony about how the fire had started was self-contradictory. The limitations of her testimony were evident both in her direct examination and in the cross-examination by Campbell. The jury had the opportunity to observe Porter's demeanor and to assess her credibility regarding her identification of Campbell as the person who had poured lighter fluid on her and then ignited it. Thus the affidavit in support of the motion for a new trial was both cumulative of Porter's testimony and served to contradict a part of that testimony at the same time. Even with the affidavit, the factual situation remained just as it was at trial. See, e.g., State v. White, 1st Dist. No. C-020645, at ¶ 14. The third assignment of error is overruled. WEIGHT AND SUFFICIENCY OF THE EVIDENCE {¶ 19} In two interrelated assignments of error, Campbell contests the weight and the sufficiency of the evidence adduced to support the convictions for aggravated arson. Our review of the record fails to persuade us that the jury, sitting as the trier of fact, clearly lost its way and created such a manifest miscarriage of justice that the convictions must be reversed and a new trial ordered. See State v.Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. {¶ 20} The jury was entitled to reject Campbell's theory that he had not started the fire and, in fact, had saved Porter by dragging her to safety and by performing cardiopulmonary resuscitation on her. Campbell highlighted conflicts in Porter's testimony, including her inconsistent recollections of the fire's cause. Yet, Porter testified that Campbell had poured lighter fluid on her and set her on fire inside his apartment. The photographs and the fire investigator's testimony described heavy damage to the apartment. Evidence of Porter's severe and life-long injuries was undisputed. Medical testimony and the testimony of the fire investigator could not exclude the use of an accelerant in the fire, and they, in fact, offered testimony that the use of an accelerant was consistent with the origin and cause of this fire. The weight to be given the evidence and the credibility of the witnesses were primarily for the trier of fact to determine. See State v. DeHass (1967),10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. The jury, in resolving conflicts in the testimony, could properly have found Campbell guilty of aggravated arson. {¶ 21} The record also contains substantial, credible evidence from which the jury could have reasonably concluded that the state had proved all elements of the charged crimes beyond a reasonable doubt. See Statev. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. The fourth and fifth assignments of error are overruled. THE SENTENCES {¶ 22} In his final assignment of error, Campbell claims that the trial court erred in imposing a sentence that was excessive, did not comply with the felony-sentencing guidelines, and was based upon factors outside the guidelines. See R.C. 2053.08(A). The trial court imposed the maximum ten-year prison term on count two, punishable as a felony of the first degree, and the maximum eight-year prison term for count three, punishable as a felony of the second degree. The court ordered that the prison terms be served consecutively. {¶ 23} The trial court completed a felony sentencing worksheet, made oral findings and, where required, gave reasons supporting those findings at the sentencing hearing, as mandated by State v. Comer,99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473. The length of the prison terms imposed was within the range provided by statute and thus was not excessive. See R.C. 2929.14(A)(1) and (2). {¶ 24} To impose a maximum sentence upon one who is not a major drug offender or a repeat violent offender, a trial court must find that the felon either had committed the "worst forms of the offense" or posed the greatest likelihood of recidivism. See R.C. 2929.14(C); see, also,State v. Lattimore, 1st Dist. No. C-010488, 2002-Ohio-723, at ¶ 26. A trial court sentencing an offender to a maximum prison term must make the required findings and specify on the record its reasons supporting those findings. See R.C. 2929.19(B)(2)(d). {¶ 25} Here, the trial court marked on the felony sentencing worksheet that Campbell had committed the worst forms of the offenses. See R.C. 2929.14(C). During the sentencing hearing, the trial court noted that recidivism was likely as Campbell had prior juvenile delinquencies and adult convictions, as well as prior unsuccessful probation or parole periods. See R.C. 2929.12(D). The seriousness of the offenses was demonstrated, the court stated, by the fact that Campbell had befriended the mildly retarded Porter and used that relationship to facilitate the crimes. The court also noted the severe, life-long injuries inflicted on Porter by the arsons. See R.C. 2929.12(B). Because the trial court gave appropriate reasons supporting its finding that Campbell had committed the worst forms of the offenses, it properly imposed the maximum sentence. {¶ 26} Next, Campbell contests the trial court's imposition of consecutive sentences pursuant to R.C. 2929.14(E). See R.C. 2953.08(A)(4). A trial court may order multiple sentences to run consecutively where the court finds that the consecutive sentences are necessary to protect the public from future crime or to punish the offender, and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger that he poses to the public. See R.C. 2929.14. Additionally, the court must find at least one of the following: (1) the offender was awaiting trial or sentencing on another offense, was under community control, or was under post-release control for a prior offense; (2) the harm caused was great or unusual and that no single prison term would adequately reflect the seriousness of the offender's conduct; or (3) the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from further crime by him. When imposing consecutive sentences, the trial court must, pursuant to R.C. 2929.19(B)(2), make these findings and provide its reasons for imposing consecutive sentences at the sentencing hearing. See State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165,793 N.E.2d 473, paragraph one of the syllabus. {¶ 27} The trial court made the required findings and gave reasons that supported those findings. The court also emphasized on its sentencing worksheet and stated at the sentencing hearing that the physical harm that Campbell had inflicted on Porter was so great that it necessitated consecutive sentences. Campbell's claim that the trial court's findings and reasons were insufficient to impose consecutive sentences is simply not supported by the record. See R.C. 2953.08(G)(2)(a). {¶ 28} On its felony-sentencing worksheet, the trial court did not make the findings necessary to impose more than the shortest term of imprisonment. See R.C. 2929.14(B). Our review of the sentencing colloquy, however, reveals that the trial court did find, albeit in its justification for maximum and consecutive sentences, that Campbell's crimes were reprehensible and constituted the worst forms of the offenses, and that the public would not be adequately protected by the imposition of even the maximum terms of imprisonment if the terms were to run concurrently. From these findings, made orally at the sentencing hearing, we conclude that the trial court's imposition of nonminimum sentences was justified. See State v. Comer, 99 Ohio St.3d 463,2003-Ohio-4165, 793 N.E.2d 473, paragraph two of the syllabus; see, also, State v. Rowland (May 11, 2001), 1st Dist. No. C-000592. The sixth assignment of error is overruled. {¶ 29} Therefore, the judgment of the trial court is affirmed. Judgment affirmed. DOAN, P.J., concurs. PAINTER, J., dissents.

2016-07-06 06:36:10.27013+00

OPINION {¶ 1} Plaintiffs-appellants, Michael and Lisa Akers, appeal a decision of the Warren County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Classic Properties, Inc. {¶ 2} On April 22, 2002, appellants filed a complaint against Classic Properties alleging breach of promise, intentional misrepresentation, fraudulent inducement, and violation of the Interstate Land Sales Full Disclosure Act in connection with appellants' purchase of a lot and house in a residential subdivision known as Hunters Green in Mason, Ohio. Specifically, appellants complained that Classic Properties, through its agents, promotional material, and newspaper articles, induced them and other buyers to purchase a lot and house in the subdivision by promising amenities which were never provided. For example, appellants assert that instead of the promised bike and walking trails, the subdivision only has wide sidewalks. {¶ 3} Hunters Green, LLC, ("Hunters Green") an Ohio limited liability company owned by Classic Properties and William Ryan Homes, Inc., was formed to acquire the land for, and develop the Hunters Green subdivision. Classic Properties is the managing member of Hunters Green. Ryan Homes does business as Williamsburg Homes. Upon developing the subdivision, Hunters Green sold the residential lots to several independent home builders, including Williamsburg Homes. The builders, in turn, constructed houses and sold the lots. {¶ 4} Several months before appellants purchased a lot in the subdivision, Classic Properties and Hunters Green prepared a brochure and a site plan depicting the amenities which Hunters Green intended to construct in the subdivision. The brochure describes the subdivision as an "elite address for upscale living," lists bike and walking trails as amenities, and states that the subdivision is a development of Classic Properties. The brochure and site plan were given to the builders, including Williamsburg Homes, with the understanding that they would be used by the builders as a marketing tool. Aside from preparing the brochure and distributing it, Classic Properties engaged in no other effort to market the subdivision. Classic Properties placed no newspaper, television, or radio advertisements. {¶ 5} Like the other builders, Williamsburg Homes purchased several lots in the subdivision. On October 10, 1998, appellants entered into a contract with Williamsburg Homes to purchase a lot and to have a house built by Williamsburg Homes. Until they closed on their property in April 1999, appellants had absolutely no contact with Classic Properties. Rather, their only contacts were with Bob Reynolds whom they had met at a Williamsburg Homes model home. Appellants understood that Reynolds was a salesman for Williamsburg Homes. According to appellants, however, Reynolds represented to them that he was also representing Classic Properties. Reynolds also made several misrepresentations as to the amenities to be built in the subdivision. Appellants claim that Reynolds' misrepresentations induced them to choose Hunters Green subdivision over other subdivisions in the area and to sign the contract with Williamsburg Homes. Appellants never sought to review the site plan for the subdivision before signing the contract with Williamsburg Homes. {¶ 6} As the development of the subdivision was completed, it became clear that the promised amenities were not going to be provided. Appellants contacted Classic Properties which told them to contact their builder. Claiming that they had suffered damages from the failure to provide some of the promised amenities, appellants filed a complaint against Classic Properties "individually and on behalf of other, similarly situated and duped subdivision residents." Neither Williamsburg Homes nor Hunters Green were joined as defendants. Classic Properties moved for summary judgment. {¶ 7} By decision filed on February 5, 2003, the trial court granted summary judgment in favor of Classic Properties, stating: "[Appellants] claim that they relied on [the brochure and site plan] and that they were misleading in that not all of the amenities have been provided. [Appellants] further claim that an agent or employee of Williamsburg Homes made oral misrepresentations of similar nature. {¶ 8} "As to these oral misrepresentations, we find that there is no evidence to show that the agent or employee of Williamsburg Homes was an agent of [Classic Properties], or that he was expressly or impliedly authorized to make any representation on behalf of [Classic Properties.] [Classic Properties] cannot be held liable for these representations. {¶ 9} "As to the brochure and site plan map, there is no evidence that the amenities that were described in these materials were not provided, with the possible exception of the `bike and walking trails.' * * * {¶ 10} "We also find that [appellants'] claim based on15 U.S.C. § 1701 et seq. (the Land Sales Disclosure Act) is time-barred. Furthermore, the Land Sales Disclosure Act does not apply to the sale of an already improved lot, as is the case here." On appeal, appellants raise three assignments of error. {¶ 11} In their first assignment of error, appellants argue that the trial court erred by granting summary judgment in favor of Classic Properties. Appellants assert that by distributing the brochure to the builders, Classic Properties created an agency relationship with the builders, making Classic Properties liable for the representations of the salesmen and builders "whom it clothed with apparent authority to market and sell homes in the subdivision." Appellants also assert that Classic Properties, through its brochure and newspaper articles, directly made representations to them regarding the bike and walking trails. {¶ 12} Civ.R. 56(C) provides in part that summary judgment shall be rendered where (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to only one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64,66. {¶ 13} An appellate court's standard of review on appeal from a summary judgment is de novo. Burgess v. Tackas (1998), 125 Ohio App.3d 294,296. An appellate court reviews a trial court's disposition of a summary judgment independently and without deference to the trial court's judgment. Id. In reviewing a summary judgment disposition, an appellate court applies the same standard as that applied by the trial court.Midwest Ford, Inc. v. C.T. Taylor Co. (1997), 118 Ohio App.3d 798, 800. {¶ 14} Appellants' claim is premised upon the theory of apparent agency. The burden of proving the existence of an apparent agency rests upon the party asserting the agency. Irving Leasing Corp. v. M HTire Co. (1984), 16 Ohio App.3d 191, 195. "To establish liability premised upon apparent agency, a plaintiff must show that (1) the defendant made representations leading the plaintiff to reasonably believe the wrongdoer was operating as an agent under the defendant's authority, and (2) the plaintiff was thereby induced to rely upon the ostensible agency relationship to his detriment." Shaffer v. Maier,68 Ohio St.3d 416, 418, 1994-Ohio-134. The principal must hold out the agent as possessing sufficient authority to embrace the particular act in question, or knowingly permit him to act as having such authority. MasterConsol. Corp. v. BancOhio Natl. Bank (1991), 61 Ohio St.3d 570, 576. "The apparent power of an agent is to be determined by the act of the principal and not by the acts of the agent; a principal is responsible for the acts of the agent within his apparent authority only where the principal himself by his acts or conduct has clothed the agent with the appearance of the authority and not where the agent's own conduct has created the apparent authority." Logsdon v. ABCO Constr. Co. (1956), 103 Ohio App. 233,242. {¶ 15} The evidence shows that Classic Properties is a member/owner of Hunters Green as well as its manager. Ryan Homes is the other member of Hunters Green and does business as Williamsburg Homes. Joseph Farruggia, the president and sole shareholder of Classic Properties, testified that (1) he is not on the board of either Ryan Homes or Williamsburg Homes; (2) Williamsburg Homes is a building company separate from Hunters Green; (3) all the builders, including Williamsburg Homes, paid full price to buy lots in the subdivision; and (4) neither Classic Properties nor Hunters Green own any interest in or control the builders. {¶ 16} Classic Properties and Hunters Green prepared a brochure and a site plan depicting the amenities which Hunters Green intended to construct in the subdivision. These materials were given to the builders, including Williamsburg Homes, with the understanding that they would be used by the builders as a marketing tool. Aside from preparing the brochure and distributing it, Classic Properties engaged in no other effort to market the subdivision. Classic Properties placed no newspaper, television, or radio advertisements. Farruggia testified that Classic Properties (1) had no power over the builders' own promotional materials; (2) had no control over what builders told buyers; and (3) only controlled what was put in the brochure distributed to the builders. {¶ 17} Appellants had no contact with Classic Properties until after the closing on their property. Appellants testified that oral misrepresentations about amenities were made by Reynolds, who while a Williamsburg Homes' salesman, also claimed to represent Classic Properties. No one else claimed to represent Classic Properties. Plaintiff-appellant, Michael Akers, testified that Reynolds was "working for Williamsburg Homes, which works for ___ in my opinion, * * * Classic Properties. Classic Properties provides them the business. They have a relationship." Plaintiff-appellant, Lisa Akers, claimed that "everything that was represented in that community ultimately came from Classic Properties, because they define what * * * the community amenities are going to be." {¶ 18} Appellants further testified that misrepresentations about amenities were also made on signs throughout the subdivision and in newspaper articles and radio advertisements. Lisa Akers, however, admitted that signs displayed throughout the subdivision did not have Classic Properties' name on them and that she did not know who had put up the signs. Newspaper articles attached to appellants' complaint do not mention Classic Properties; rather, they direct readers to contact Reynolds and/or Williamsburg Homes. Appellants testified they did not know if the radio advertisements were from Classic Properties. {¶ 19} With regard to representations made by Reynolds and/or Williamsburg Homes, Farruggia testified that (1) he believed Reynolds was an employee of Williamsburg Homes; (2) he did not know about Reynolds' oral misrepresentations and Williamsburg Homes' representations in newspaper articles until after the lawsuit was filed; (3) he has never misrepresented to either Williamsburg Homes or Reynolds the amenities intended to be built; and (4) he has never authorized any representative from Classic Properties to meet with prospective buyers. Farruggia's affidavit states in relevant part that "[1] [n]either Classic nor Hunters Green LLC constructed any single family homes for resale in the Subdivision; [2] [n]either Classic nor Hunters Green LLC controls the Home Builders or their employees; [3] [a]t no time has either Classic or Hunters Green LLC employed or otherwise engaged Bob Reynolds to act as agent in connection with the sale of lots or homes at the Subdivision or for any other purpose; and [4] [a]t no time has Classic or Hunters Green LLC requested or instructed the Home Builders, Williamsburg or Mr. Reynolds to misrepresent the nature of the amenities which Hunters Green LLC intended to construct at the Subdivision." {¶ 20} The facts in the present case do not support a finding that Reynolds or Williamsburg Homes were agents for Classic Properties with authority to make representations on behalf of Classic Properties. No evidence was presented to support a finding that Classic Properties by its acts or conduct held out Reynolds or Williamsburg Homes as its agents, or knowingly permitted them to act as having such authority. As there was no agency relationship, apparent or otherwise, the trial court properly found that Classic Properties could not be held liable for Reynolds' and/or Williamsburg Homes' representations. {¶ 21} With regard to appellants' claim that Classic Properties, through its brochure and newspaper articles, directly made misrepresentations to them about the bike and walking trails, we first note that misrepresentations, if any, were only made in the brochure, as Classic Properties engaged in no other promotion to market the subdivision. Farruggia testified that (1) a company hired to create the brochure came up with the language used in the brochure; (2) he and Classic Properties approved the brochure; (3) sidewalks are the same as bike and walking trails; and (4) the terms "bike and walking trails" sound better than sidewalks. Appellants agreed that one could walk and ride a bike on the four-foot wide sidewalks built in the subdivision. {¶ 22} The trial court found that "[t]he promotional materials provided by Hunters Green LLC and [Classic Properties] refer to `bike and walking trails.' What has been actually constructed are four-foot wide concrete sidewalks. There is no evidence that [appellants] were ever given a more detailed or specific description of what was intended by Hunters Green LLC or by [Classic Properties]. To say that the concrete sidewalks that were provided do not meet the definition of `bike and walking trails' or that they are not what the parties mutually intended by the use of that phrase, would require the Court, without some evidence, to engage in sheer speculation and conjecture." We agree with the trial court. {¶ 23} We add that the brochure is clearly a glossy promotional and marketing tool using boastful and exaggerated language to promote the subdivision. For example, the brochure also lists as amenities "spacious green area for lawn parties," "lake areas with fountains." The brochure refers to the subdivision as "an elite address for upscale living" and describes a club house amenity as "shaded verandahs, spacious party facilities, lawn fetes, impeccable landscaping. It could be the hub of an exclusive country club. It is a very special place for your use, pleasure and enjoyment — an amenity in perfect harmony with an elite address." These terms along with the terms "bike and walking trails" are nothing more than puffing and not warranties. Thus, they do not provide a basis to reverse the granting of summary judgment to Classic Properties. See Chic Promotion, Inc. v. Middletown Sec. Sys., Inc. (1996),116 Ohio App.3d 363; Diamond Co. v. Gentry Acquisition Corp., Inc. (C.P. 1988), 48 Ohio Misc.2d 1. Appellants' first assignment of error is overruled. {¶ 24} In their second assignment of error, appellants argue that the trial court erred by finding that their claim under the Interstate Land Sales Full Disclosure Act ("ILSFDA") was time-barred and that ILSFDA was inapplicable. {¶ 25} ILSFDA is "an antifraud statute utilizing disclosure as its primary tool, much like the securities laws." Winter v. HollingsworthProperties, Inc. (C.A. 11, 1985), 777 F.2d 1444, 1447. ILSFDA imposes detailed disclosure requirements upon land developers to ensure full disclosure to buyers of relevant facts prior to their decision to purchase real estate. Pierce v. Apple Valley, Inc. (S.D.Ohio 1984),597 F. Supp. 1480, 1484. For purposes of ILSFDA, a sale occurs when the purchaser signs the sale agreement and incurs an obligation. Markowitz v.Northeast Land Co. (C.A. 3, 1990), 906 F.2d 100, 104. {¶ 26} In the proceedings below, appellants claimed that Classic Properties violated Section 1703(a)(2) of ILSFDA. That provision states in relevant part that with respect to the sale of any lot not exempt under Section 1702(a), it is unlawful for any developer or agent, directly or indirectly, "(A) to employ any device, scheme, or artifice to defraud; (B) to obtain money or property by means of any untrue statement of a material fact * * *; (C) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon a purchaser[.] * * *" Pursuant to Section 1711(a)(2), a three-year limitations period applies to actions brought under Section 1703(a)(2)(A)-(C). The limitations period begins to run from the date of discovery of the violation, or the date on which discovery should have been made by the exercise of reasonable diligence. {¶ 27} The trial court found that appellants' claim was time-barred and that ILSFDA was inapplicable "to the sale of an already improved lot, as is the case here." The trial court's decision was based upon Section 1702(a)(2) which provides that ILSFDA does not apply to "the sale * * * of any improved land on which there is a residential, commercial, condominium, or industrial building, or the sale * * * of land under a contract obligating the seller * * * to erect such building thereon within a period of two years[.]" {¶ 28} For a real estate sale to be exempted under Section 1702(a)(2), the seller must clearly sell a lot with an existing building or must be obligated to erect such building within two years from the sale. "If at the time the purchaser signs the contract there exists a * * * building or the seller is obligated to erect such building within two years, the sale is exempt from the Act. If, as in this case, no building exists at the time of contracting and the contract does not contain a binding obligation to complete one within two years, compliance with the statute is required." Winter, 777 F.2d at 1450. The record shows that at the time appellants signed the sale contract with Williamsburg Homes, there was no building on the lot they were purchasing. Furthermore, the sale contract between appellants and Williamsburg Homes did not require the builder to erect a building within two years from the sale. We therefore find that the trial court erred by finding that ILSFDA was inapplicable under Section 1702(a)(2). {¶ 29} Nevertheless, we do not reach the issue of whether appellants' claim under ILSFDA was time-barred as we find that ILSFDA was inapplicable under Section 1702(a)(7). This provision provides that ILSFDA does not apply to "the sale * * * of lots to any person who acquires such lots for the purpose of engaging in the business of constructing residential, commercial, or industrial building or for the purpose of resale * * * of such lots to persons engaged in such business[.]" {¶ 30} To qualify for ILSFDA protection, a plaintiff must be able to show that he purchased the lot from a defendant who is a developer or a developer's agent. See Gibbes v. Rose Hil Plantation Dev. Co. (D.S.C. 1992), 794 F. Supp. 1327, 1333. Section 1701(6) defines a developer's agent as "any person who represents, or acts for or on behalf of, a developer in selling * * * any lots or lots in a subdivision * * *." In the case at bar, it is undisputed that Classic Properties, the developer of the subdivision, sold lots to Williamsburg Homes, a builder and non-party, which in turn, directly sold a lot to appellants. It is undisputed that there was no transaction between appellants and Classic Properties. As a result, appellants have no claim against Classic Properties unless they can demonstrate that Williamsburg Homes sold lots as Classic Properties' agent. Tomlinson v. Village Oaks Dev. Co., LLC (S.D.Ind. 2003), No. IP-02-0599-C-M/S, 2003 WL 21180644, at *2. In light of our holding under the first assignment of error that neither Reynolds nor Williamsburg Homes were agents of Classic Properties, we find that pursuant to Section 1702(a)(7) of ILSFDA, appellants have no claim against Classic Properties. Id. Appellants' second assignment of error is accordingly overruled. {¶ 31} In their third assignment of error, appellants argue that the trial court erred by overruling their motion to certify a class action filed after their complaint and before Classic Properties' summary judgment motion. Appellants correctly assert that by failing to rule on their motion, the trial court implicitly overruled it. See Takas v.Baldwin (1995), 106 Ohio App.3d 196, 209. Given our resolution of the first and second assignments of error, this assignment of error is moot. App.R. 12(A)(1)(c). Judgment affirmed. WALSH, P.J., and BROGAN, J., concur. Hendrickson, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution. Brogan, J., of the Second Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.

2016-07-06 06:36:10.336456+00

OPINION {¶ 1} Appellant, Stephen Christopher Jones, was convicted of felonious assault with a firearm specification, assault, and resisting arrest. Jones was sentenced to a term of three years for the felonious assault conviction, one year for the resisting arrest conviction, and one year for the assault conviction. These terms are concurrent to each other and consecutive to a three-year term for the firearm specification. {¶ 2} Jones was a Cleveland Police Officer. In August of 2000, Jones was staying with relatives at their cabin at the Holiday Camplands ("Camplands") in Andover, Ohio. Mr. Keith, the owner of the cabin, became involved in a heated argument with his son, Andre. While patrolling, Camplands Security Officer Mike Offensend noticed the argument. {¶ 3} Officer Offensend called another officer working dispatch, and that officer contacted the Ashtabula County Sheriff's Department. Mr. Gentry, the head of Camplands security was called at his home. Mr. Gentry responded to the call with James Taylor, who was visiting Gentry and used to work as a Camplands security officer. {¶ 4} Jones and Mr. Keith went for a walk as the security officers questioned Andre. When they returned from their walk, the security officers were still talking to Andre. Jones pulled Andre into the cabin. Jones then argued with Gentry. Soon after, Deputy Niemi of the Ashtabula County Sheriff's Department arrived on the scene. {¶ 5} Jones proceeded to argue with Deputy Niemi. Deputy Niemi testified that Jones came down from the porch of the cabin to confront him. He then testified that Jones pushed him. In response to the push, Deputy Niemi maced Jones. Immediately after being maced, Jones grabbed his gun and yelled, "you mother fucker." Deputy Niemi testified that Jones stuck the gun in his face. Jones claims he merely secured his weapon after being maced, as he was trained to do. {¶ 6} All of the witnesses testified that within a matter of seconds of drawing his weapon, Jones retreated into the cabin. Jones then discarded his gun on the couch inside the cabin. Deputy Niemi followed Jones into the cabin. Deputy Niemi attempted to place Jones under arrest, but Jones resisted. Jones claims he believed that Deputy Niemi was a security officer, not a deputy sheriff. During the struggle, Officer Ginn of the Andover Police Department arrived, announced that he was a police officer, and arrested Jones without incident. {¶ 7} Jones raises the following assignments of error on appeal: {¶ 8} "[1.] The evidence presented at trial was insufficient to sustain appellant's conviction for felonious assault. {¶ 9} "[2.] The trial court erred in admitting testimony about appellant's prior acts over defense counsel's objections, and erred again in denying appellant's written motion for a new trial. {¶ 10} "[3.] Appellant was denied his right to due process of law and a fundamentally fair trial as guaranteed by the Fourth, Fifth,Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 5, 10 and 16 of the Ohio Constitution when the trial court denied appellant's motion for a new trial following the outrageous conduct of Deputy Niemi during trial. {¶ 11} "[4.] The trial court erred when it entered separate convictions and imposed separate sentences for both felonious assault and assault, in violation of R.C. 2941.25 and appellant's state and federal constitutional rights to due process and to protection against double jeopardy." {¶ 12} In his first assignment of error, Jones claims that the state presented insufficient evidence to sustain his felonious assault conviction. {¶ 13} To determine if there is sufficient evidence, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt."1 {¶ 14} Felonious assault is codified in R.C. 2903.11, which states, in pertinent part: {¶ 15} "(A) No person shall knowingly do either of the following: {¶ 16} "*** {¶ 17} "Cause or attempt to cause physical harm to another *** by means of a deadly weapon or dangerous ordnance." {¶ 18} A totality of the surrounding circumstances should be examined to determine whether a felonious assault conviction should be upheld.2 Deputy Niemi testified that Jones aggressively pushed him just moments before the incident involving the gun occurred. Deputy Niemi then maced Jones, afterwhich Jones drew his weapon and pointed it at Deputy Niemi. {¶ 19} The Supreme Court of Ohio has held that "[t]he act of pointing a deadly weapon at another coupled with a threat, which indicates an intention to use such weapon, is sufficient evidence to convict a defendant of the offense of `felonious assault' as defined by R.C.2903.11(A)(2)."3 This is a specific, but not the only, instance where there is sufficient evidence of felonious assault.4 {¶ 20} Jones asserts that there was no threat involved in the incident with Deputy Niemi. However, numerous witnesses testified that Jones yelled "you mother fucker" moments before he pointed the gun at Deputy Niemi. While the statement is not a traditional threat, we note that it is substantially similar to the statement "`[i]f you don't have a warrant get the fuck out of my house,'" which the Supreme Court of Ohio held was a threat in Green.5 {¶ 21} In addition, Deputy Niemi testified that "[a]s soon as [Jones] turned to go into the house, he said `I'm going to shoot that mother fucker.'" Although Jones asserts that there was no evidence that he was contemporaneously pointing his gun at Deputy Niemi as he made the threat, this is additional evidence of Jones' intention. According to Deputy Niemi's testimony, this threat was made as soon as Jones turned to go in the house. Jones may have had the gun pointed at Deputy Niemi at this point. Moreover, even if he did not have the gun pointed at Deputy Niemi at the precise moment he made the threat, the fact that a specific threat was made just moments after he had a gun pointed at Deputy Niemi's head is additional evidence of Jones' intention. {¶ 22} Jones also asserts that he testified at trial that he was only securing his gun because he had been maced. He claims this was an involuntary action, and, therefore, the state did not present sufficient evidence that he committed the crime with the requisite mental state of "knowingly." This evidence was to be weighed with the rest of the evidence by the jury when determining a verdict. However, this evidence is not to be considered when determining if there was sufficient evidence presented by the state to support a conviction. {¶ 23} The totality of the circumstances of the case, including the specific act of pointing a gun at someone coupled with threats, when viewed in a light most favorable to the prosecution, was such that a reasonable trier of fact could have found all of the elements of felonious assault proven beyond a reasonable doubt. Accordingly, there was sufficient evidence presented on the felonious assault charge. {¶ 24} Jones' first assignment of error is without merit. {¶ 25} In his second assignment of error, Jones asserts that the trial court erred when it allowed the state to introduce evidence of a prior arrest. {¶ 26} The defense put numerous character witnesses on the stand to testify to Jones' good character. These witnesses generally testified that Jones has a good reputation. Specifically, Officer John Kincaid testified that Jones is held in high esteem in the police department. On cross-examination, the state questioned Kincaid about a prior instance involving Jones in 1998. Officer Kincaid then testified that Jones was arrested for a domestic violence incident involving his wife in 1998, but that Jones was not convicted as a result of the incident. {¶ 27} After the defense rested, the state called Officer Adrian Candelaria as a rebuttal witness. Through direct examination, the state questioned Officer Candelaria about the 1998 incident. Defense counsel repeatedly objected to the line of questioning, but the trial court allowed it to continue. Candelaria then testified that he arrested Jones for domestic violence in 1998. He also testified that Jones was intoxicated when he was arrested and that a police-issued firearm was involved in the incident. {¶ 28} Jones asserts that the evidence of the 1998 incident was not admissible under Evid.R. 404(B). Evid.R. 404(B) states: {¶ 29} "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." {¶ 30} None of the exceptions apply to the other acts evidence offered in this case. There was no evidence presented Jones had planned to commit the offenses at Camplands. Jones' defense to drawing his weapon was not mistake or accident, but that it was what he was trained to do. The only purpose of this evidence was to show that he acted in conformity with the 1998 incident; i.e., he got drunk and inappropriately used his work-issued firearm. {¶ 31} Evidence of other acts under R.C. 2945.59 and Evid.R. 404(B) is to be construed against admissibility.6 This is because "[t]he average individual is prone to much more readily believe that a person is guilty of the crime charged if it is proved to his satisfaction that the defendant has committed a similar crime."7 {¶ 32} Even though the evidence of the 1998 incident was inadmissible under Evid.R. 404(B), certain portions of it were properly admissible under Evid.R. 404(A)(1). Evid.R. 401(A)(1) states: "Characterof accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same is admissible; however, in prosecutions for rape, gross sexual imposition, and prostitution, the exceptions provided by statute enacted by the General Assembly are applicable." Since the defense offered favorable character evidence of Jones, the state was permitted to offer rebuttal testimony attacking the character of Jones.8 {¶ 33} One of the ways for the state to rebut the testimony of character witnesses was set forth by the Supreme Court of Ohio inState v. Elliot: {¶ 34} "A character witness may be cross-examined as to the existence of reports of particular acts, vices, or associations of the person concerning whom he has testified which are inconsistent with the reputation attributed him by the witness — not to establish the truth of the facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given to his testimony. Such inconsistent testimony tends to show either that the witness is unfamiliar with the reputation concerning which he has testified, or that his standards of what constitutes good repute are unsound."9 {¶ 35} The fact that Jones was not convicted as a result of the 1998 arrest, did not prohibit the state from cross-examining Officer Kincaid about the arrest.10 {¶ 36} Evid.R. 405 provides for appropriate methods for proving character, and states: {¶ 37} "(A) Reputation or opinion. In all cases in which evidence of character of a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. {¶ 38} "(B) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct." {¶ 39} The state was permitted to cross-examine Officer Kincaid about the 1998 incident, because it was a relevant specific instance of conduct under Evid.R. 405(A). However, the state was not permitted to question Officer Candelaria about the incident through direct examination. This is because the situation was now in the scope of Evid.R. 405(B), where character may only be proved by specific instances of conduct when it is an essential element of the charge, claim or defense. Character was not an essential element of any of the crimes Jones was charged with. {¶ 40} The trial court should have sustained defense counsel's objections to Officer Candelaria's testimony regarding the 1998 incident. {¶ 41} Moreover, we cannot say that the trial court's error was harmless beyond a reasonable doubt. Even though some evidence of the 1998 incident was properly in front of the jury by means of testimony from Officer Kincaid on cross-examination, certain details were not revealed. Officer Candelaria testified that Jones was intoxicated during the 1998 incident. He also testified that a work-issued firearm was involved in the 1998 incident. Neither of these details would have been before the jury had the trial court excluded this testimony. This improperly admitted evidence was highly prejudicial to Jones. In the case he was actually being tried for, the state presented evidence that he was intoxicated and pointed a work-issued firearm at Deputy Niemi. {¶ 42} Jones' second assignment of error has merit. {¶ 43} In his third assignment of error, Jones claims he was denied a fair trial because of the inappropriate actions of Deputy Niemi during trial. {¶ 44} Deputy Niemi was seated at the prosecution table during the trial. While Jones was testifying, Deputy Niemi was making faces and snickering. Defense counsel heard Deputy Niemi utter "bullshit" in response to part of Jones' testimony. In response to Deputy Niemi's actions, the trial court removed Deputy Niemi from the courtroom. The trial court then individually questioned the members of the jury to determine if they heard any remarks from Deputy Niemi and, if they did, whether they could proceed with the trial in an unbiased manner. {¶ 45} The Supreme Court of Ohio has set forth the following standard to be used when reviewing the way a trial court handled an outburst during trial: "the trial court determines, as a question of fact, whether the demonstration deprived the defendant of a fair trial by improperly influencing the jury. In the absence of clear, affirmative evidence to the contrary, the trial court's determination will not be disturbed."11 {¶ 46} While we are extremely troubled with the entirely inappropriate conduct of Deputy Niemi, we cannot say that the trial court abused its discretion in the way it handled the situation. The trial court promptly removed Deputy Niemi from the courtroom to prevent any further disturbance. The jury members were then individually questioned to determine how much they were affected by Niemi's actions. The trial court then determined that the trial could proceed in an unbiased fashion. {¶ 47} Jones' third assignment of error is without merit. {¶ 48} Having found merit in Jones' second assignment of error, Jones' fourth assignment of error is moot. {¶ 49} The judgment of the trial court is reversed. The cause is remanded for a new trial. ROBERT A. NADER and DIANE V. GRENDELL, JJ., concur. 1 State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. 2 State v. Green (1991), 58 Ohio St.3d 239, citing State v. Brooks (1989), 44 Ohio St.3d 185. 3 Id. at syllabus, following State v. Brooks, 44 Ohio St.3d 185. 4 Id. at 241. 5 Id. at 242. 6 State v. Lowe (1994), 69 Ohio St.3d 527, 530. 7 State v. Hector (1969), 19 Ohio St.2d 167, 174-175. 8 State v. Smith (1992), 84 Ohio App.3d 647, 662. 9 State v. Elliott (1971), 25 Ohio St.2d 249, paragraph two of the syllabus. (vacated on other grounds (1971), 408 U.S. 939.) 10 State v. Hart, (1991), 72 Ohio App.3d 92, 98, citing Michelson v.United States (1948), 335 U.S. 469, 482. 11 State v. Benge (1996), 75 Ohio St.3d 136, 144, quoting State v.Morales (1987), 32 Ohio St.3d 252, 255.

2016-07-06 06:36:10.404711+00

OPINION {¶ 1} This timely appeal comes for consideration upon the record in the trial court, the parties' briefs, and their oral arguments to this court. Plaintiff-Appellant, Allied Erecting and Dismantling Company, Inc., appeals the decision of the Mahoning County Court of Common Pleas which denied its motion for prejudgment interest. The issues before this court are whether the trial court used an incorrect "bad faith" standard and whether it abused its discretion when ruling on the motion for prejudgment interest. {¶ 2} A trial court must award prejudgment interest if the party required to pay a money judgment failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case. The lack of a good faith effort is different than bad faith. But a trial court's reference to bad faith in its judgment entry is harmless if the record demonstrates that the trial court went through the proper analysis. In this case, the trial court properly considered the factors demonstrating whether a party fails to make a good faith effort to settle the case. The trial court's reference to bad faith can be ignored. {¶ 3} When ruling on a motion for prejudgment interest a trial court must determine if the party who must pay a money judgment made a good faith effort to settle the case. The Ohio Supreme Court has stated that a party has not failed to make a good faith effort to settle if it has (1) fully cooperated in discovery proceedings; (2) rationally evaluated his risks and potential liability; (3) not attempted to unnecessarily delay any of the proceedings; and, (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. In this case, the evidence supports the trial court's conclusion on the first, second, and fourth factor. And although the trial court did not specifically address the third factor, it would have abused its discretion if it had concluded that the City attempted to unnecessarily delay the proceedings. For these reasons, the trial court's decision is affirmed. Facts {¶ 4} This is the second time that the underlying case has come before this panel for appellate review. The dispute arose over who owned the slag and ballast underneath railroad tracks along a rail corridor that the Pittsburgh Lake Erie Railroad Company was selling to the City. PLE sold "all rail, other track material, salvageable ballast and ties (whether attached to track or not)" along the corridor to Allied. It sold the land itself to the City. But the contracts between PLE and the City only stated that Allied was entitled to "all rail track materials and ties and other track materials". {¶ 5} When Allied began removing the slag underneath the rail line, the City objected. It notified Allied that "the slag and ballast located on the property belongs [sic] to the City of Youngstown and is not to be removed by your company" and if Allied attempted to remove the slag, "the City will consider filing criminal charges for the unauthorized taking of City property." As a result of the City's actions, Allied filed a complaint which specifically stated two counts: declaratory judgment and breach of contract. During the course of litigation, the City sold the slag to a third-party who removed it. {¶ 6} The matter proceeded to a jury trial. After the evidence was presented, the trial court granted a directed verdict against Allied on its declaratory judgment and breach of contract claims. But it agreed to instruct the jury on tortious interference with a contract and conversion, finding that the complaint set forth the elements of those torts. The jury returned a verdict in Allied's favor for two million dollars. {¶ 7} After the jury's verdict, Allied filed a motion for prejudgment interest and the City filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court granted the City's motion. Allied appealed this decision and, in a case styled Allied Erecting DismantlingCo., Inc. v. Youngstown, 151 Ohio App.3d 16, 2002-Ohio-5179, this court reversed the trial court's decision and reinstated the jury's verdict. Subsequently, we denied the City's timely application for reconsideration of our opinion, Allied Erecting Dismantling Co., Inc. v. Youngstown, 7th Dist. No. 00CA225, 2003-Ohio-0330, and the Ohio Supreme Court refused to accept the case for review. 02/20/2003 Case Announcements, 2003-Ohio-0734. {¶ 8} After this court issued its opinion, the parties submitted briefs regarding the motion for prejudgment interest with attached evidentiary material to the trial court and it held a hearing on the motion. After the hearing, the trial court denied Allied's motion for prejudgment interest. Prejudgment Interest {¶ 9} Allied's sole assignment of error argues: {¶ 10} "The trial court's denial of Allied's motion for prejudgment interest constituted reversible error." {¶ 11} Allied contends the trial court abused its discretion when it refused to award prejudgment interest because the evidence demonstrates that the City did not fully cooperate in discovery, that it unnecessarily delayed the proceedings, that it did not rationally evaluate its risks and potential liability, and that it failed to make good faith efforts to settle the case. It further contends that the trial court erred because it decided whether the City had acted in bad faith rather than whether its actions demonstrated merely a lack of a good faith effort to settle. {¶ 12} R.C. 1343.03(C) provides that a trial court shall award interest on a civil action based on tortious conduct from the date the cause of action accrued to the date on which the money is paid if the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case. This prejudgment interest may only be awarded upon motion by any party to the action and after a hearing. Id. The purpose of this statute "is to encourage litigants to make a good faith effort to settle their case, thereby conserving legal resources and promoting judicial economy." Peyko v. Frederick (1986), 25 Ohio St.3d 164, 167. It also prevents "parties who have engaged in tortious conduct from frivolously delaying the ultimate resolution of cases." Kalainv. Smith (1986), 25 Ohio St.3d 157,159. {¶ 13} The Ohio Supreme Court has explained that this statute has four components. "First, a party seeking interest must petition the court. * * * Second, the trial court must hold a hearing on the motion. Third, to award prejudgment interest, the court must find that the party required to pay the judgment failed to make a good faith effort to settle and, fourth, the court must find that the party to whom the judgment is to be paid did not fail to make a good faith effort to settle the case."Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638,658. {¶ 14} The party who seeks prejudgment interest bears the burden of proving that he is entitled to prejudgment interest. Id. at 659. If that party proves the four requirements of the statute, the trial court has no discretion and must award prejudgment interest. Id. at 658. But the trial court's ultimate judgment is reviewed for an abuse of discretion since it must decide if a party has made a "good faith effort" or, conversely, when has a party "failed to make a good faith effort to settle". Id. The phrase "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Huffman v. HairSurgeon, Inc. (1985), 19 Ohio St.3d 83, 87. {¶ 15} The Ohio Supreme Court has recognized that R.C.1343.03(C) requires that parties act in good faith. Moskovitz at 658. Accordingly, it has established a four-part test to determine whether a party has failed to make a good faith effort to settle. "A party has not `failed to make a good faith effort to settle' under R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2) rationally evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party." Kalain at syllabus. {¶ 16} The Ohio Supreme Court has added that a party need not make a monetary settlement offer if he has a good faith, objectively reasonable belief that he has no liability. Id. And a defendant can have a good faith, objectively reasonable belief that he has no liability even if there is some evidence that it may be liable. Patton v. Cleveland (1994), 95 Ohio App.3d 21,27. But this exception must be strictly construed so as to carry out the purposes of the statute. Moskovitz at 659. Furthermore, the "[e]xistence of a good faith, objectively reasonable belief of nonliability does not excuse a defendant from the remainingKalain obligations to (1) fully cooperate with discovery, (2) rationally evaluate risks and potential liability, and (3) refrain from unnecessary delaying maneuvers." Galayda v. LakeHosp. Sys., Inc. (1994), 71 Ohio St.3d 421, 429. {¶ 17} Finally, when discussing the statute's requirement that parties make good faith attempts to settle their claims, the Ohio Supreme Court has distinguished between lack of a good faith effort and bad faith. "[I]n prejudgment interest determinations pursuant to R.C. 1343.03(C), the phrase `failed to make a good faith effort to settle' does not mean the same as `bad faith.'"Moskovitz, 69 Ohio St.3d 638 at paragraph two of the syllabus. "[A] party may have failed to make a good faith effort to settle even though he or she did not act in bad faith." Id. at 659. {¶ 18} This distinction is important. "[T]he application of a `bad faith' definition in the determination of a motion for prejudgment interest implies that R.C. 1343.03(C) is punitive in nature. The Ohio Supreme Court espouses an opposite view. That court holds that in making its decision, a trial court must recognize that R.C. 1343.03(C) is not punitive in nature. * * * Rather, the statute permits compensation in a case where a defendant allows `"the interest monies on the [defendant's money reserves] to accumulate to the benefit of the party required to pay and to the detriment of the party to whom the money is to be paid."'" (Mar. 29, 1996), 6th Dist. No. OT-95-018. {¶ 19} The City argues R.C. 1343.03(C) cannot apply to Allied's claim against it since the claims in Allied's original complaint were for breach of contract and declaratory judgment rather than for tortious conduct. It contends it would be unfair to judge its actions under the standard for R.C. 1343.03(C) since "the case did not become a tort action until midway through trial." {¶ 20} This argument ignores our previous opinion. In that decision, we held that Allied pled a claim for conversion in its original complaint. See Allied at ¶ 73-77. After examining the complaint, we concluded that "the City had notice of Allied's claim of conversion from the inception of the lawsuit and could not be prejudiced by an amendment to the complaint that made this claim more clear." Id. at ¶ 77. Thus, contrary to the City's claims, this case was, among other things, a tort action from the beginning. It did not suddenly become one midway through the trial. Accordingly, it would not be unfair to apply R.C.1343.03(C) in this case. Nevertheless, these procedural facts have some bearing on other aspects of our analysis. Fully Cooperate in Discovery {¶ 21} Allied first claims the City failed to fully cooperate in discovery. Allied argues that it was forced to move for discovery sanctions twice and that this demonstrates that the City failed to fully cooperate with discovery. {¶ 22} The Ohio Supreme Court has not provided any guidance regarding what is or is not "full cooperation in discovery". Nevertheless, we agree with Judge Connor's statement that "[t]he crux of [a] court's inquiry when examining cooperation in discovery is to assure that the parties were not deprived of information necessary to make a well-informed decision with respect to settlement." Watson v. Grant Med. Ctr.,123 Ohio Misc.2d 40, 2003-Ohio-2704, ¶ 39; see also Borucki v. Skiffey (Sept. 14, 2001), 11th Dist. Nos. 2000-T-0029, 2000-T-0057 (Defendant did not fully cooperate in discovery since his failure to inform his attorney of certain facts caused his attorney to evaluate the case at a much lower level). There is no general rule defining when a party has failed to fully cooperate in discovery and nor should there be. A bright-line would take some of the discretion away from the trial judge and it could potentially hide the realities of any particular situation. {¶ 23} Generally, when appellate courts affirm a trial court's conclusion that a party has failed to fully cooperate in discovery, the defendant has failed to comply with one or more discovery requests. For instance, in Smith v. Ruben (Aug. 16, 2001), 10th Dist. No. 00AP-1320, the defendants failed to comply with plaintiff's requests for discovery and failed to identify and disclose expert witnesses. The appellate court determined this was sufficient to demonstrate that the defendants did not fully cooperate in discovery. Likewise, in Copp v. Clagg (Feb. 22, 1990), 3rd Dist. No. 13-88-16, the defendants did not answer certain interrogatories until ordered to do so by the trial court. The appellate court affirmed the trial court's conclusion that the defendants did not fully cooperate in discovery. And inKlinebriel v. Smith (Feb. 6, 1996), 4th Dist. No. 94CA1641, the appellate court affirmed the trial court's finding that the defendants failed to fully cooperate in discovery since there were "several instances" on the record supporting that conclusion. These included at least one instance where the defendants failed to produce some requested documents. {¶ 24} But not all instances involving a failure to fully cooperate in discovery deal with a failure to comply with a discovery request. For example, in Borucki the defendant did not violate the Civil Rules pertaining to discovery in the same way as in Smith, Copp and Klinebriel. Instead, his own inconsistent account of events and his failure to inform his counsel and expert of certain facts caused delays in discovery and caused his attorney to improperly evaluate the case. And yet it does not appear that he was ever sanctioned for his actions. Nevertheless, the appellate court affirmed the trial court's conclusion that he failed to fully cooperate in discovery. {¶ 25} Finally, when reviewing whether or not a defendant has fully cooperated in discovery, appellate courts have avoided concluding that a trial court has abused its discretion when the trial court finds that the party has fully cooperated in discovery. See Edward L. Gilbert Co., LPA v. Levy (Mar. 27, 1996), 9th Dist. No. 17292. In doing so, courts cite the trial court's discretion and its ability to referee the dispute between the parties. Id. {¶ 26} In this case, Allied does not allege that the City completely failed to comply with a discovery request. Instead, it argues that the City delayed complying with certain discovery requests and that those delays required Allied to move for discovery sanctions twice. And Allied argues that this delayed compliance demonstrates that the trial court abused its discretion when it found that the City fully cooperated in discovery. But after reviewing the entire record in this case, we cannot say the trial court abused its discretion. {¶ 27} Clearly, there was some sort of agreement to suspend discovery. But it is not clear from the evidence what the scope of that agreement was and it is not clear when this agreement lapsed. Thus, when Allied's letters kept referring to the missing documents and Bozanich's deposition, the City could have reasonably believed that Allied was merely reminding it of the outstanding discovery requests when the parties resumed discovery. And although the City did not turn over the requested documents and allow Bozanich to be deposed as soon as Allied would have liked, this was done over a year and a half before the trial court's final discovery deadline. It was not unreasonable for the trial court to conclude that the City's actions did not have an adverse affect on whether or not the parties chose to settle the case. Allied's argument to the contrary is meritless. Unnecessary Delay {¶ 28} Allied next claims that the trial court abused its discretion because its judgment entry did not address whether or not the City unnecessarily delayed the proceedings. In addition, it contends that the City actually did unnecessarily delay the proceedings. Allied's argument is correct in one respect. The trial court's judgment entry fails to specifically analyze whether or not the City unnecessarily delayed the proceedings. But this is harmless error. The City did not unnecessarily delay the proceedings. {¶ 29} The City requested that the trial be continued two times. The first, on April 29, 1997, was because the City's attorney was involved in a jury trial that would not be completed by the scheduled trial date for this case. Clearly, this is good cause for a continuance and Allied does not contend that this was an unnecessary delay. {¶ 30} The City's second motion for a continuance was filed on August 6, 1999. At that time, trial was scheduled for August 9, 1999. In that motion, the City claimed that it received a packet of material from Allied on August 4, 1999 which contained reports of proposed experts. And it further claimed that one of the proposed experts had not been previously disclosed and that the other proposed expert had altered his opinion. Accordingly, the City moved that the experts either be excluded or that the trial court grant a continuance so the City could conduct discovery to determine if experts of its own were warranted. Clearly, this is also good cause for a continuance. Accordingly, the trial court granted the motion. {¶ 31} Allied claims the City never deposed the experts who were the subject of the August 9th motion and did not move for summary judgment after that motion was granted. Thus, it believes this is evidence that the continuance was "a pure dilatory tactic". But the evidence does not support this conclusion. In an affidavit by the City's trial counsel, which was attached to its response to Allied's motion for prejudgment interest, counsel stated that the City retained its own expert to review Allied's new expert reports. This expert did not testify at trial, but this is not of any import. The City requested the continuance so it could prepare for Allied's experts and it did so. There is no evidence that the City did not act in good faith when it requested this continuance. Allied's arguments to the contrary are meritless. Rational Evaluation of Risks and Liabilities {¶ 32} Allied argues the City's actions demonstrate that it failed to rationally evaluate its risks and potential liabilities. Allied claims the City never investigated the site to see if there was any slag or ballast other than that immediately below the tracks, refused to look at Allied's contractual documents with PLE when Allied first approached the City's law director, failed to produce any evidence contradicting Allied's expert's calculation of the value of the slag, and failed to offer a single document that supported its position at trial. Allied contends that if the City believed it had no liability, then it would have moved for summary judgment, but it did not. And it argues that the City's decision to sell the slag to a third party during the course of this litigation demonstrates that it did not rationally evaluate its risks. {¶ 33} "In assessing the risk of any occurrence, including the potential of civil liability, it would seem reasonable that one must evaluate both the likelihood of the event occurring, i.e. its probability, and its impact if it should happen, i.e. its magnitude. Events that have a low probability of occurring, yet will be accompanied by an impact of great magnitude if they do happen, should properly be treated differently than those where the probability and the magnitude of the event are both low. Likewise, high probability and low impact may require a different approach. A rational approach considers both factors."Wagner v. Marietta Area Health Care, Inc. (Mar. 16, 2001), 4th Dist No. 00CA17. {¶ 34} In this case, the City determined that there was a very low likelihood that it would be found liable and this belief was rational. In its complaint, Allied pled an action for conversion, but it did not specifically mention that it was seeking recovery under this legal theory. Instead, Allied specifically pled two claims, one for breach of contract and one for declaratory judgment. The City prevailed on each of these specifically stated claims at trial when the trial court granted it a directed verdict on those claims. Moreover, Allied did not challenge the directed verdict on appeal. Finally, the City's belief that it was immune from suit on the tort claim is reasonable given the fact that the trial court granted judgment notwithstanding the verdict to the City on that issue, even though that decision was reversed on appeal. {¶ 35} Furthermore, even though the City had a rational belief that there was a low likelihood that it would be found liable, it engaged in extensive settlement negotiations with Allied during the course of the litigation. Prior to trial, each party made non-monetary settlement offers. For instance, Allied agreed to settle the case if the City agreed to one of several options, including transfer of property, extending a tax abatement, replacing storm sewers, or granting salvage rights to various properties to Allied. And after the City sold some of the slag to a third party, it offered to allow Allied to remove the remaining slag from the property and the right to remove slag from a second property. And immediately prior to trial, each party made a monetary offer to the other. The City offered to pay Allied $100,000 and the right to remove any remaining slag on the property, the price of which was evaluated at between $500,000 and $1,500,000. Allied believed that it was not cost effective to remove the remaining slag and demanded $1,700,000 in settlement. {¶ 36} Given these facts, the trial court did not abuse its discretion when it concluded that Allied rationally evaluated its risks and potential liabilities. Allied rationally believed that there was a low likelihood that it would be found liable and it made an offer which reflected that belief. Allied's argument to the contrary is meritless. Good Faith, Objectively Reasonable Belief in Non-Liability {¶ 37} Allied next argues that the City did not make a good faith monetary settlement offer or respond in good faith to an offer from Allied. The City contends that this court does not need to address this since it possessed a good faith, objectively reasonable belief that it was not liable to Allied. As stated above, the Ohio Supreme Court has added that a party need not make a monetary settlement offer if he has a good faith, objectively reasonable belief that he has no liability. Kalain. {¶ 38} Although the trial court did not specifically find that the City did possess a good faith, objectively reasonable belief that it was not liable, this was clearly the basis of its decision. It noted that the City's contract with PLE stated that Allied was entitled to the "rail track materials and ties" without any mention of slag or salvageable ballast. And it noted that PLE's president told the City's finance director that the City owned all slag and ballast on the property except for that directly under the railroad tracks. The trial court concluded that, based on this evidence, it was "easy to see" why the City would believe it owned the slag and that it legitimately believed it would have no liability. {¶ 39} A review of the facts in this case demonstrates that the trial court did not abuse its discretion when it made this conclusion. Allied's complaint against the City specifically stated two causes of action, declaratory judgment and breach of contract. After the evidence was presented at trial, the trial court granted a directed verdict to the City on each of these claims and Allied did not challenge this decision on appeal. This gives credence to the City's claim that it had a good faith, objectively reasonable belief that it would not be found liable on those causes of action. {¶ 40} The trial court instructed the jury on two torts, conversion and tortious interference with a contract after finding that the complaint set forth the elements of those torts. Of course, the jury rendered a verdict in Allied's favor. But the trial court found that the City was not liable for those damages under the Political Subdivision Tort Liability Act and granted it JNOV. The City is only liable because Allied was successful on appeal. It is difficult to conclude that a defendant does not have a good faith, objectively reasonable belief that it would not be found liable on an issue if the trial court eventually grants the defendant's motions for directed verdict and JNOV. Given these facts and the standard of review, we must conclude that this argument is also meritless. Bad Faith {¶ 41} Finally, Allied believes that the trial court's decision was flawed because it applied a "bad faith" standard rather than examining the City's actions for a lack of good faith. But we will not reverse a trial court's decision on prejudgment interest merely because it mentions bad faith or makes findings related to bad faith. Instead, we will only reverse a trial court's decision which "seems to rest on the incorrect test of `bad faith'". Miller v. Miller MillerAccountants, Inc., 5th Dist. No. 2002-CA-0068, 2003-Ohio-5913, ¶ 44. As long as the trial court uses the Kalain factors and determines that the defendant has made a good faith effort to settle the case, any reference to bad faith on the defendant's part can be ignored. DiMario v. Aras (Oct. 29, 1999), 1st Dist. No. C-990107. {¶ 42} This case is a perfect example of that principle. Here, the trial court stated the proper standard and made the findings required by Kalain. But in its conclusion it became the victim of linguistic imprecision and muddled the distinction between a lack of good faith and the existence of bad faith. This is clearly not the best practice. Nevertheless, the trial court used the Kalain factors to make its decision and found that Allied proved none of those factors. Accordingly, the trial court's unfortunate reference to whether or not the City acted in bad faith is just that, a misstatement which had no bearing on the trial court's substantive decision. Because the trial court used the proper factors to reach its decision, its reference to whether or not the City acted in bad faith can be ignored. Allied's argument to the contrary is meritless. Conclusion {¶ 43} In conclusion, Allied's sole assignment of error is meritless. We must review the trial court's decision for an abuse of discretion and apply the right test when determining whether or not Allied was entitled to prejudgment interest. After reviewing the facts, we conclude that the evidence supports the trial court's conclusions regarding each of the Kalain factors. Accordingly, we conclude that the trial court did not abuse its discretion when denying Allied's motion for prejudgment interest and the judgment of the trial court is affirmed. Donofrio, J., concurs. Vukovich, J., concurs.

2016-07-06 06:36:10.492925+00

DECISION AND JOURNAL ENTRY Appellant Charles E. Hood appeals from the judgment of the Medina County Court of Common Pleas affirming the decision of the Ohio Bureau of Unemployment Compensation Review Commission disallowing the payment of employee benefits. This Court affirms the judgment. Hood was employed by Ohio Fasteners Tool, Inc. ("Ohio Fasteners") as a salesman working out of the Canton, Ohio office. In March of 1997 Hood purchased a catering truck and advised his manager Thomas Osbourne that he was going to use the truck as a transition to retirement. Hood told Osbourne that the truck would be used to sell food at auctions, and that his daughter, son-in-law, and wife were available to operate the truck. Company President Richard Sullivan and Osbourne became suspicious that Hood was operating his truck during work hours. Hood would fail to respond to pages on days he was inexplicably absent from the office. When Hood was advised of a customer problem he would decline to see the customer until the next day. Sullivan and Osbourne discovered that Hood was absent for part or all of eleven days in which he never requested time off, as required by company policy. On September 17, 1997, Sullivan and Osbourne went to Hood's home and noticed that his catering truck was not there. Sullivan and Osbourne proceeded to an auction at Kent Worldwide Machine Works, where they observed Hood and his catering truck open for business during company time. The next day Hood was summoned to a meeting with Sullivan, Osbourne, and Sales Manager George Ebert. Sullivan advised Hood that he was seen at the Kent auction, and that Hood could resign or be fired. Hood said that he was sorry, admitted that he was wrong, and asked if they could reconcile. Sullivan responded that no reconciliation was possible. Hood then signed a previously prepared letter of resignation. Shortly thereafter, on the advice of his counsel, Hood requested that his resignation letter be returned to him. Sullivan returned the letter and discharged Hood. On October, 16, 1997, Hood filed an application for the determination of unemployment benefit rights. On November 5, 1997, Hood's benefit rights were suspended after the administrator determined that Hood was discharged for good cause. Upon a request for reconsideration, the administrator reversed the initial decision and determined that Hood was discharged without good cause. Ohio Fasteners filed an appeal to the Ohio Unemployment Compensation Review Commission ("Review Commission"). A hearing was held on the matter on February 18, 1998. On February 20, 1998, the hearing officer reversed the administrator's determination and found that Hood was terminated for just cause. On March 31, 1998, the Review Commission denied Hood's request for further appeal. Hood appealed the decision of the Review Commission to the Medina County Court of Common Pleas. On April 16, 1999, the court affirmed the decision of the Review Commission. Hood timely appeals, raising two assignments of error. Assignment of Error No. I THE COURT OF COMMON PLEAS ERRED AS A MATTER OF LAW BY FAILING TO CONSIDER THE APPELLANT'S STATUS AS A 42.7 PERCENT SHAREHOLDER OF THE APPELLEE COMPANY, AS WELL AS AN OFFICER AND DIRECTOR, IN DETERMINING THAT THE APPELLANT WAS DISCHARGED FOR JUST CAUSE. Assignment of Error No. II THE COURT OF COMMON PLEAS ERRED BY FINDING THAT APPELLANT HAD NOT REQUESTED, OR WAS NOT ENTITLED TO, THE VACATION DAYS THAT HE WAS TAKING DURING THE TIME APPELLEE CLAIMS APPELLANT WAS ABSENT FROM WORK WITHOUT PERMISSION. The foregoing assignments of error will be reviewed together as they raise similar issues of law and fact. In his first assignment of error, Hood argues that the common pleas court erred by failing to consider his status as a shareholder, officer, and director in resolving the question of whether he was discharged for just cause. In his second assignment of error, Hood argues that the common pleas court erred by affirming findings that Hood was absent without leave of his employer. The procedural posture of this case is an administrative appeal governed by R.C. 4141.28(O). An appellate court may reverse a just cause determination by the Review Commission only if it is unlawful, unreasonable, or against the manifest weight of the evidence. Tzangas, Plakas Mannas v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694, 696. This standard of review applies from the first level of review in the common pleas court through the final appeal to the Ohio Supreme Court. Id. Neither the Common Pleas Court nor this court has any authority to substitute its judgment for that of the administrator or Board of Review. The Court, acting in its appellate jurisdiction, is not the judge of the credibility of the witnesses. That is the function of the trier of the facts. If the decision is supported by credible proof, the finding may not be disturbed. What conclusion either the Common Pleas Court or this court might reach in the original hearing is an entirely different and immaterial matter. The determination of this factual question was within the province of the Board of Review. Brown-Brockmeyer Co. v. Roach [(1947)], 148 Ohio St. 511. Martinez v. Chemlawn Corp. (Sep. 28, 1983), Lorain App. No. 3495, unreported, quoting Kilgore v. Board of Review (1965),2 Ohio App.2d 69, 72-73. This standard of review is unchanged by the fact that Hood owned stock in the employer close corporation.1 A finding of just cause "is that which, to an ordinary intelligent person, is a justifiable reason for doing or not doing a particular act." Irvine v. Unemployment Comp. Bd. of Review (1985), 19 Ohio St.3d 15, 17, quoting Peyton v. Sun T.V. Appliances (1975), 44 Ohio App.2d 10, 12. The record in the instant case contains credible evidence to support the finding of a just cause dismissal for absenteeism. Review by the employer revealed that Hood had taken off all or part of eleven days during the summer of 1997 without leave of the employer. Hood would often fail to return company pages when he was inexplicably absent. Hood was cavalier about customer needs and would defer them to following days. Moreover, on September 17, 1999, the day before Hood was discharged, Hood was discovered at an auction with his catering truck on company time. When confronted the following day, Hood said that he was sorry, that he was wrong, and asked for a reconciliation that the employer denied. Accordingly, this Court finds that the common pleas court properly concluded that there was credible evidence supporting the finding that Hood was discharged for just cause. Hood's claim that the common pleas court did not consider his status in the company is factually inaccurate. Review of the order appealed from reveals that the common pleas court states that it undertook a review of the evidence in the record. Hood's status as minority shareholder, officer, and director were facts in the record of the administrative hearing. Likewise, Hood's claim that the days he was absent were really vacation days was a part of the record below. These claims were rejected by the Review Commission and the common pleas court. These proofs in no way change the standard of review or command a particular result. Ultimately, it is properly left to the Review Commission as trier of fact to resolve competing points of evidence. See Tzangas,supra, at 697. "The fact that reasonable minds might reach different conclusions is not a basis for the reversal of the board's decision." Irvine, supra, at 18. Therefore, this Court concludes there was credible evidence supporting the determination that Hood was discharged for just cause. Hood's first and second assignments of error are overruled. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the County of Medina, Court of Common Pleas, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to Appellant. Exceptions. ___________________________ DONNA J. CARR FOR THE COURT SLABY, P. J., WHITMORE, J., CONCUR. 1 Hood argues that his status as a minority shareholder in the employer close corporation changes the standard of review in this case to a "legitimate business purpose" standard. However, each of the cases cited by Hood involve shareholder suits for breach of fiduciary duty and/or breach of contract and are, therefore, distinguishable from the case at bar. See Crosby v.Beam (1989), 47 Ohio St.3d 105; Cruz v. South Dayton UrologicalAssoc., Inc. (1997), 121 Ohio App.3d 655; Priebe v. O'Malley (1993), 89 Ohio App.3d 8; Gigax v. Repka (1992), 83 Ohio App.3d 615 . Actions for breach of fiduciary duty or breach of contract are civil proceedings originally filed in the court of common pleas. Just cause termination cases originate before an administrative body and reach the court of common pleas as an administrative appeal. This Court concludes that the "legitimate business purpose" standard has no application to an administrative appeal taken under R.C. 4141.28(O), such as in this case.

2016-07-06 06:36:10.569118+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant-appellant Tamer El-Berri (El-Berri) appeals his convictions for rape and kidnapping. For the following reasons, we affirm in part, reverse in part and remand. {¶ 2} On January 4, 2006, a Cuyahoga County Grand Jury indicted El-Berri on one count of kidnapping with a sexual motivation specification attached and one count of rape. {¶ 3} The facts giving rise to the instant case occurred in the late evening on December 22, 2004. The sixteen-year-old victim worked at El-Berri's cellular phone business located at Great Northern Mall. There was a heavy snowfall that night and, at the close of the victim's shift, El-Berri offered to drive the victim home as she lacked experience driving in snow storms. Brenda Carmak (Carmak), the victim's mother, consented because El-Berri and his girlfriend, Nicolet Arcuri (Arcuri), were family friends. {¶ 4} On the night in question, instead of taking the victim directly home, El-Berri drove past her exit and went to his home. While there, El-Berri proceeded to remove the victim's clothes, forced her over the couch, and engaged in vaginal intercourse with her against her will. {¶ 5} The victim arrived home later that evening via taxi cab because El-Berri's motor vehicle became stuck in the snow. Carmak described the victim as *Page 4 looking "white as a ghost, scared to death." The victim told Carmak that El-Berri raped her. Carmak took the victim to the hospital where vaginal swabs confirmed the presence of seminal fluid, although testing was unable to produce a male DNA profile. {¶ 6} On January 2, 2007, the case proceeded to jury trial. On January 11, 2007, the jury returned its verdict and found El-Berri guilty of kidnapping with a sexual motivation specification and guilty of rape. {¶ 7} On February 1, 2007, the trial court sentenced El-Berri to seven years of imprisonment for kidnapping and seven years of imprisonment for rape, counts to be served concurrently. The trial court also conducted a House Bill 180 hearing and designated El-Berri a sexually oriented offender. {¶ 8} On February 26, 2007, El-Berri filed a notice of appeal and asserted four assignments of error for our review. ASSIGNMENT OF ERROR NUMBER ONE "The trial court erred in denying Appellant's motion for acquittal as to the charges when the state failed to present sufficient evidence against Appellant." {¶ 9} El-Berri argues that the trial court erred when it denied his Crim. R. 29 motion for acquittal. {¶ 10} Crim. R. 29 (A), which governs motions for acquittal, reads as follows: "The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses *Page 5 charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses." {¶ 11} Furthermore, in reviewing the sufficiency of the evidence, this court held: "A challenge to the sufficiency of the evidence supporting a conviction requires a court to determine whether the state has met its burden of production at trial. In reviewing for sufficiency, courts are to assess not whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. The motion `should be granted only where reasonable minds could not fail to find reasonable doubt.'" State v. McDuffie, Cuyahoga App. No. 88662, 2007-Ohio-3421. (Internal citations omitted.) {¶ 12} El-Berri argues that the State failed to present evidence of rape as set forth in R.C. 2907.02(A)(2). R.C. 2907.02(A)(2) delineates the crime of rape, as charged: "No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." {¶ 13} El-Berri and the victim engaged in sexual conduct as defined in 2907.01(A): "`Sexual conduct' means vaginal intercourse between a male and female * * *; and, without privilege to do so, the insertion, however slight, of any part of the body * * * into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse." *Page 6 {¶ 14} The victim testified, "He put his penis in my vagina." (Tr. 293.) Furthermore, vaginal and rectal swabs collected from the victim revealed the presence of seminal fluid. {¶ 15} Pursuant to R.C. 2907.02(A)(2), there is sufficient evidence that El-Berri purposely compelled the victim to submit by force. The victim's testimony included: she did not consent to having sexual intercourse with El-Berri; El-Berri removed her clothes; he forced her onto the couch; and El-Berri engaged in vaginal intercourse with her against her will. Force "need not be overt and physically brutal, but can be subtle and psychological" depending on the age of the victim and relationship to the parties. State v. Eskridge (1988), 38 Ohio St.3d 56,58-59. (Further holding that, "as long as it can be shown that the rape victim's will was overcome by fear or duress, the forcible element of rape can be established.") Id. at 59. Other witnesses, who observed the victim shortly after the incident, described that "[s]he looked white as a ghost, scared to death." {¶ 16} At the time of the offense, the victim was a sixteen-year-old minor child, while El-Berri was fifteen years her senior. In addition, El-Berri was the victim's employer and a family friend, whereby a factfinder could determine that he occupied a position of authority over the victim. Indeed, the evidence shows that the victim (and her mother) entrusted El-Berri to drive her home because of a heavy snow storm and her lack of experience with driving. Instead of taking *Page 7 her home, El-Berri took the victim to his house, where he subjected her to sexual intercourse and then sent her home in a taxicab. {¶ 17} The victim also stated that she was very scared and that she didn't know what El-Berri was going to do to her. She clearly testified that she did not want to have any kind of sexual relations with El-Berri that night. (Tr. 308.) Under the sufficiency standard, we are bound to accept that testimony as true and simply cannot reverse a conviction for insufficiency by disregarding or disbelieving evidence. The weight and credibility of that testimony was for the trier of fact to decide. {¶ 18} The dissent's comprehensive survey of the record and weighing of the evidence reflects a manifest weight analysis, rather than one of sufficiency. In essence, the dissent concludes that absent some overt evidence of resistance a rape could not have occurred between a thirty-one-year-old employer and his sixteen-year-old employee. But to reach this conclusion, the dissent rejects the reasonable inference that the victim submitted because she was, as she said, "scared." El-Berri's position of authority as her boss and the disparity in their ages cannot be discounted where the law is that the "force and violence necessary to commit the crime of rape depends on the age, size, and strength of the parties and their relation to each other." Eskridge, at paragraph one of the syllabus. While the dissent advances a strong argument for reaching a different conclusion on these points than the jury did, it is not within our province to *Page 8 weigh and resolve these facts when conducting a sufficiency analysis. The record also supports El-Berri's conviction for kidnapping under R.C. 2905.01(A)(4) with a sufficiency of the evidence, which provides that no person, "by force, threat, or deception," shall "remove another from the place where the other person is found or restrain the liberty of the other person" to engage in sexual activity against the victim's will. {¶ 19} The dissent finds insufficient evidence in that the victim's initial agreement to the detour and that he asked her permission to stop at his home as being dispositive of the kidnapping by deception charge. It seems unlikely there would be a case where a person accused of kidnapping someone by deception would have explicitly advised the victim of such an intent, nor would the unwitting victim's initial agreement to the detour alter an undisclosed, subjective ill-intent. Although the victim willingly allowed El-Berri to drive her home, he did not do so. Instead, he took her to his house for the alleged purpose of getting "something." Given the course of events that ensued, a rational trier offact could glean from the evidence that El-Berri's true purpose was not to get anything, but to lure the victim to his house in order to engage in sexual activity with the victim against her will. See, e.g.,State v. Ware (1980), 63 Ohio St.2d 84; State v. Williams (May 22, 1980), Cuyahoga App. No. 41378; see, also, R.C. 1.42, R.C. 2913.01(A) Accordingly, there is evidence from which a rational trier of fact could conclude that El-Berri committed kidnapping by deception. There is *Page 9 also evidence that El-Berri used force to restrain the victim when he bent her over the couch in order to engage in sexual intercourse with her. Further, in viewing the evidence in a light most favorable to the State, there is sufficient evidence to sustain El-Berri's conviction for rape and kidnapping. Thus, the trial court did not err when it denied El-Berri's Crim. R. 29 motion for acquittal. {¶ 20} El-Berri's first assignment of error is overruled. ASSIGNMENT OF ERROR NUMBER TWO "Appellant's convictions are against the manifest weight of the evidence." {¶ 21} El-Berri argues that his convictions are against the manifest weight of the evidence. "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. {¶ 22} We incorporate our application of the law to the facts of this case as set forth in El-Berri's first assignment of error. As such, in reviewing the entire record, in weighing the evidence and all reasonable inferences, in considering the credibility of the witnesses, and in resolving conflicts in the evidence, we cannot find that the jury clearly lost its way when it convicted El-Berri of rape. *Page 10 Regarding El-Berri's conviction for kidnapping, we find the same. {¶ 23} El-Berri's second assignment of error is overruled. ASSIGNMENT OF ERROR NUMBER THREE "The trial court erred by ordering convictions and a sentence for separate counts of rape and kidnapping because the offenses are allied offenses pursuant to R.C. 2941.25 and they are part of the same transaction under R.C. 2929.14." {¶ 24} El-Berri argues that the trial court erred when it sentenced him for both rape and kidnapping because rape and kidnapping are allied offenses of similar import. {¶ 25} R.C. 2941.25 pertains to allied offenses of similar import and reads as follows: "(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them." {¶ 26} The Ohio Supreme Court directs that the determination of allied offenses be decided upon whether the offenses correspond to such a degree that the commission of one crime resulted in the commission of the other, rather than *Page 11 a strict textual comparison of statutory elements. State v.Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, at ¶ 25-26. {¶ 27} In Cabrales, the court continued to recognize that rape and kidnapping can be considered allied offenses. Id. at ¶ 25, citingState v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, at ¶ 89-95 (kidnapping and rape are allied offenses). {¶ 28} "Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions." State v.Logan (1979), 60 Ohio St.2d 126, at paragraph (a) of the syllabus. In Logan, the court reasoned, "the primary issue, however, is whether the restraint or movement of the victim is merely incidental to a separate underlying crime or, instead, whether it has a significance independent of the other offense." Id. at 135. {¶ 29} In this case, the evidence does not establish a separate animus between the kidnapping and rape counts that would demonstrate an independent significance for each of the offenses. Accordingly, these counts are allied offenses and the kidnapping conviction merges with the rape conviction. The kidnapping conviction is vacated and the matter must be remanded for *Page 12 proceedings consistent with this opinion and for resentencing. {¶ 30} El-Berri's third assignment of error is sustained. ASSIGNMENT OF ERROR NUMBER FOUR "The trial court erred by ordering appellant to serve more than the minimum sentence." {¶ 31} This assignment of error is rendered moot by our disposition of the third assignment of error and is accordingly overruled. Judgment affirmed in part, reversed in part and remanded for proceedings consistent with this opinion and for resentencing. 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES J. SWEENEY, A.J., CONCURS MELODY J. STEWART, J., DISSENTS (SEE DISSENTING OPINION)

2016-07-06 06:36:10.576933+00

{¶ 32} I respectfully dissent from the majority decision affirming El-Berri's convictions for rape and kidnapping. The facts do not show that he compelled the victim to submit by force or threat of force, neither do they show that he restrained her liberty in any manner. Although El-Berri's conduct with a minor whom he employed was wholly inappropriate and distasteful to say the least, it did not support a finding of guilt on the charged offenses. {¶ 33} A more complete recitation of the facts shows that at trial, the victim's mother testified that her boyfriend owned a store where she and her daughter, the victim, worked. The boyfriend leased a portion of the store to a cell phone company owned and operated by El-Berri and his girlfriend. The victim's mother said that she and the girlfriend became friendly, and that she would sometimes fill in at the cell phone store for the girlfriend. The mother said that El-Berri had trained the victim in the cell phone business and that he employed her at the boyfriend's store. {¶ 34} In December 2004, El-Berri assigned the victim to work at one of his stores located in a shopping mall. On the night of the incident, El-Berri scheduled the victim to work until 11:00 p.m. A heavy snow was falling that night and the victim's mother became concerned about the victim's ability to drive in poor weather. In its recitation of the facts, the majority states that "El-Berri offered to drive the victim home as she lacked experience driving in snow *Page 14 storms." Ante at 1. This statement is not exactly correct. It is undisputed that the mother called the victim to see if she wanted to be picked up. The mother testified that the victim told her El-Berri would give her a ride home; the victim testified that her mother asked her if El-Berri would give her a ride. {¶ 35} As they traveled on the interstate, El-Berri told the victim that he needed to stop by his house to get something. The victim testified that El-Berri asked her if he could make a detour to his house in order to get something, and that she told El-Berri it was "okay." {¶ 36} When he pulled up to the house, El-Berri asked the victim if she wanted to come in with him. She agreed to do so. When they entered the house, El-Berri went into another room while the victim remained in the kitchen. El-Berri called for the victim to join him. She went into the living room and El-Berri started to rub her back. She did not say anything while he did this. He then bent her over the couch and started to unbutton her pants. During her testimony, she said that she was "scared" when asked what her thoughts were at the time, but she did not say anything to El-Berri. She testified that El-Berri pulled down her pants and underwear and then "put his penis in [her] vagina." She did not recall how long his penis was in her vagina, but when he removed his penis, El-Berri asked her if she was ready to go. She replied that she was, pulled her clothes up and left with him. The victim testified that as they were leaving, El-Berri's car became stuck in the snow. Unable to move the car, he *Page 15 called for a cab and both she and El-Berri went back in the house to wait. The victim stated that it took awhile for the cab to arrive, and neither she nor El-Berri said anything to each other during the wait. {¶ 37} When the cab arrived, El-Berri gave the victim money to pay the fare. The victim entered the cab and gave the driver directions to her house. At the same time, the mother, having grown concerned because the victim had not arrived home, called the victim's cell phone and asked where she was. The victim told her she was on her way home in a cab. When asked, "Did your mom want to know why you were in a cab," the victim responded, "I told her I would talk to her when I get home." {¶ 38} When the victim arrived home, she learned that her mother was talking on the telephone with El-Berri's girlfriend. The victim went into a bedroom and her mother handed the telephone to her. The victim briefly spoke with the girlfriend. The mother testified that the two argued on the phone. However, during cross-examination, the victim indicated that she and the girlfriend did not argue at all. Furthermore, when asked, "It was just a pleasant conversation, you told her you are with Tamer and that was that, right?" The victim answered, "yes." When she concluded the telephone call, the victim stated that she told her mother "what happened" with El-Berri. {¶ 39} The direct examination went as follows: {¶ 40} "Q. Did you tell your mom, once the phone conversation stopped — *Page 16 when you got home your mom was on the phone. Then there came a time when your mom was no longer on the phone. Okay? {¶ 41} "After your mom was no longer on the phone did you tell your mom what happened? {¶ 42} "A. Yes. {¶ 43} "Q. How did that come about? {¶ 44} "A. I don't remember. I just remember telling her. {¶ 45} "Q. Do you remember what you told your mom? {¶ 46} "A. I told her what happened. {¶ 47} "Q. Back at Tamer's house? {¶ 48} "A. Yes." {¶ 49} The mother and her boyfriend then drove to El-Berri's house to confront him. The mother testified that the girlfriend answered the door and said to her, "you better not have your f***ing daughter with you." The mother angrily confronted El-Berri as he stood in the doorway and asked him "how could he betray me." The mother testified that her boyfriend said something, however, what was said is not in the record. Whatever the boyfriend stated, the mother testified that El-Berri said, "it is not like he was the first one." The mother stated that El-Berri invited them in to talk, but she refused. {¶ 50} The mother and her boyfriend returned home and the mother took the victim to the hospital emergency room. Results from a rape kit revealed the *Page 17 presence of seminal fluid on vaginal swabs, rectal swabs and the victim's underwear, but no semen was found on the vaginal smear slide, the rectal smear slide, the oral smear slide, the oral swabs, or the skin swabs. The source of the seminal fluid could not be determined as testing was unable to produce a male DNA profile. A record from the hospital emergency room contained an account of events that stated, "when the boss's [girlfriend] asked [the victim] if the patient had `slept with Tamer' the patient said yes." {¶ 51} For his defense, El-Berri offered the testimony of the girlfriend who also lived with El-Berri. She stated that she ended her relationship with El-Berri immediately after the incident. She said that she had developed a close relationship with both the victim and her mother, and thought of herself and the victim as "almost best friends" and that the victim would tell others that they were "sisters" because they looked so much alike. The girlfriend testified that during the week before the incident occurred, and apparently coinciding with the victim's assignment to the mall location, she noticed El-Berri acting "a little weird" and staying longer at work than normal. While at her mother's house on the night in question, the girlfriend became concerned when El-Berri was not home by midnight, so she called the victim's mother to inquire into the victim's whereabouts. The victim's mother told the girlfriend that the victim was working with El-Berri. The girlfriend said that this was when she first learned that the victim had been working at the mall with El-Berri, and it aroused her *Page 18 suspicions. Later that evening, she again called the mother to find out if the victim had come home, thinking that if the victim had arrived home, it meant that El-Berri likewise should be home. The girlfriend and the victim's mother were on the telephone when the victim's cab arrived. The girlfriend asked the mother to go to the cab driver and ask him where he had picked up the victim. When told that the cab had come from El-Berri's house, it confirmed the girlfriend's suspicions that El-Berri and the victim were having an affair. At that point, the girlfriend asked to speak with the victim and told her to admit that she was having an affair with El-Berri. The victim admitted to the girlfriend that she had an affair with El-Berri, but said that they only had sex one time. I {¶ 52} At common law, the crime of rape was defined as "the unlawful carnal knowledge, by a man, of a woman, forcibly and against her will."Smith v. State (1861), 12 Ohio St. 466, 470. The courts interpreted rape as requiring proof of certain conduct by both the accused and the victim. {¶ 53} "Because `against her will' is synonymous with `without her consent,' many jurisdictions substituted the latter term. The prosecution, therefore, in order to satisfy its burden of proving all of the elements of the crime charged, had to establish both the victim's lack of consent and the defendant's use of force. The focus on the conduct of both the victim and the defendant resulted in the *Page 19 rule that the victim had to prove `resistance to the utmost' to establish rape. Absent such resistance, rape was not established, notwithstanding evidence of the use of force." Wilk, Expert Testimony on Rape Trauma Syndrome: Admissibility and Effective Use in Criminal Rape Prosecution (1984), 33 Am.U. L.Rev. 417, 420-421. See, also, State v.Driscoll (1922), 106 Ohio St. 33, 40; Frey v. State (1907), 22 Ohio C.C. (N.S.) 607, 608. {¶ 54} A drawback of the "consent" requirement was that it tended to encourage a focus on the complainant's state of mind, and evidence of her prior sexual experience was often used to insinuate that she wanted to have sex. Abrams, Hearing the Call of Stories (1991), 79 Cal. L.Rev. 971, 1033-1034. To prevent such tactics, many modern statutes, guided by the Modern Penal Code, eliminated the express requirements of unwillingness or nonconsent.1 The drafters explained that the Code's approach was not that "consent by the victim is irrelevant or that inquiry into the level of resistance by the victim cannot or should not be made. Compulsion plainly implies non-consent * * *." Model Penal Code, Section 213.1, comment, at 301-306. One commentator has stated that under the Model Penal Code approach: {¶ 55} "The resistance standard is rejected where force is proved, but *Page 20 `resistance by a woman of ordinary resolution' is the statutory standard used to define Gross Sexual Imposition, where the force exerted by the defendant is not an element. Thus, while the drafters intended to focus primarily on the actions of the defendant, they continued to stress the importance of the victim's non-consent. The drafters noted that `the possibility of consent by the victim, even in the face of conduct that may give some evidence of overreaching, cannot be ignored,' and echoed the concern of other commentators concerning the ambivalence of women toward forceful sexual intercourse. It was therefore clearlyintended that the language `compels [the victim] to submit by force'includes proof of the victim's non-consent." (Emphasis added.) {¶ 56} Ohio modeled its rape statute on the Model Penal Code.2 As applicable to this case, R.C. 2907.02(A)(2) states that no person shall engage in sexual conduct with another when "the offender purposely compels the other person to submit by force or threat of force." A defendant purposely compels a victim to submit by force or threat of force when the defendant uses physical force against the victim, or creates the belief that physical force will be used if the victim does not submit. State v. Schaim, 65 Ohio St.3d 51, 55, 1992-Ohio-31. *Page 21 Depending on age and relationship, force "need not be overt and physically brutal, but can be subtle and psychological." State v.Eskridge (1988), 38 Ohio St.3d 56, 58-59; Schaim, 65 Ohio St.3d at 55. Physical resistance must no longer be shown by the victim. See R.C. 2907.02(C) ("A victim need not prove physical resistance to the offender in prosecutions under this section."). {¶ 57} Lack of consent is no longer an express element of rape.3 Nevertheless, there is an undeniable interplay between the concepts of resistance and consent. R.C. 2907.03(C) states only that the victim does not have to prove "physical" resistance to the defendant. This is not the same as saying that no resistance of any kind is required. With certain exceptions addressed shortly, if the use of force or threat of force is not apparent from the defendant's conduct, there must be some evidence of lack of consent or resistance to show that the defendant "purposely compel[led]" the other person to submit. See R.C. 2907.02(A)(2). Absent this showing, there would be no evidence that the defendant had the mens rea to cause the victim to capitulate. If the victim does nothing to communicate, either verbally or nonverbally, a lack of consent, a defendant cannot be found to have compelled the victim to submit to the sexual conduct.4 A victim must affirmatively convey some indicia of non-consent as a *Page 22 predicate to a finding that the victim had been, in the absence of any force or threat of force, compelled to submit to the sexual conduct.5 {¶ 58} I am aware that there are proponents of the concept of "affirmative consent." These advocates suggest that in the absence of express words of consent, the victim must be deemed to be non-consenting. See, generally, Note, Addressing Acquaintance Rape: The New Direction of the Rape Law Reform Movement (1995), 69 St. John's L.Rev. 291, 310-312. This standard, however, is inconsistent with R.C. 2907.02(A)(2), which requires the offender to have purpose to compel the other person to submit to sexual conduct by force or threat of force. A standard that would, in the absence of force or threat of force, allow a *Page 23 victim to say nothing or manifest no form of resistence during the act but later voice her lack of consent, would fail as a matter of law under circumstances like those presented here because the defendant could not know that compulsion had been used against the victim. II {¶ 59} The dispositive question is whether, in the absence of any evidence relating to force or the threat of force, El-Berri compelled the victim to engage in sexual conduct with him. The majority's discussion of the facts going to the elements of the offense is incomplete and belies the victim's own testimony. It offers no facts to show any force or threat of force used against the victim, and ignores significant testimony by the victim which showed that at all events she never communicated, in any manner whatsoever, that she did not consent to El-Berri's advances. {¶ 60} During direct examination by the state, the victim said that she asked El-Berri for a ride home, agreed to detour to his house, and further accepted his invitation to enter his house. When asked whether she said anything to El-Berri as he rubbed her back, the victim at first said, "I don't remember," and when asked again, she said "no." When asked whether she said anything to El-Berri as he began to remove her pants and underwear, she said "no." Although she testified that she was "scared" as El-Berri did these things, when asked if there was any reason why she did not say anything at the time, *Page 24 the victim replied, "No. I don't know." Even though she claimed that she did not voluntarily bend over the couch, she continued to remain silent throughout. After referencing the specific act of penetration, the state asked the victim, "[i]s there any reason why you didn't say anything to him?" She replied, "I don't know." The testimony shows that her only word to him during and after the incident was "yes" when asked "if she was ready to go." {¶ 61} The victim's cross-examination further confirmed her lack of communication throughout the incident: {¶ 62} "Q. And you told the prosecutor that he began rubbing your back, correct? {¶ 63} "A. Yes. {¶ 64} "Q. And you didn't say anything, right? {¶ 65} "A. Right. {¶ 66} "Q. And then he basically started removing your pants? {¶ 67} "A. Yes. {¶ 68} "Q. And, again, you indicated to the prosecutor that you didn't say anything? {¶ 69} "A. Right." {¶ 70} After questioning the victim regarding how El-Berri penetrated her, the defense asked the following: {¶ 71} "Q. Again, you never said anything to him while he was doing this, *Page 25 correct? {¶ 72} "A. Right. {¶ 73} "Q. And you knew Tamer, right? {¶ 74} "A. Yes. {¶ 75} "Q. You have known him for a while, right? {¶ 76} "A. Right. {¶ 77} "Q. Yet you never said Tamer, what are you doing? {¶ 78} "A. No, I didn't. {¶ 79} "Q. Never said Tamer, I don't want to do this? {¶ 80} "A. No. {¶ 81} "Q. Never said Tamer, hey, [your girlfriend] and I are friends and if she finds out we are all going to be in trouble. Do you ever say that? {¶ 82} "A. No. {¶ 83} "Q. Did it ever occur to you? {¶ 84} "A. Yes." {¶ 85} At no point in any of the victim's testimony does it show that El-Berri used physical force of any kind to engage in sexual conduct. Neither is there any evidence from which a reasonable trier of fact could find that El-Berri compelled the victim through nonphysical means or by the threat of force. The victim gave no verbal objection to his actions, nor did she engage in any form of nonverbal conduct, hesitation, or resistance to indicate that she did not consent *Page 26 to El-Berri's actions. Likewise, the state offered no evidence to show that El-Berri said anything coercive or threatening to the victim in the moments leading up to the sexual conduct. {¶ 86} While testifying, the victim stated that she was "scared" during the incident. However, her testimony does not indicate what she was afraid of or why she was scared. Unlike her earlier testimony where she specifically explains how she "was scared to drive in the snow," she did not testify that she was scared of El-Berri, scared that he might harm her or of what he might do to her, scared of losing her job, or scared of his retaliating against her. She may very well have been scared of having intercourse or scared of El-Berri's girlfriend coming home or scared of the unknown. All of these possibilities are plausible based on the evidence. The majority erroneously concludes that the victim's acknowledgment that she had been scared during the incident was sufficient to show that El-Berri used force or the threat of force to compel her to submit. The majority's conclusion is a non sequitur because it does not necessarily follow that a person is being forced or compelled to do anything just because she is scared. Furthermore, the victim did not testify in any manner which would indicate that El-Berri knew she was afraid. If there had been any testimony to the effect that the victim's fear was manifest in any form or fashion, that evidence could be deemed sufficient to communicate to El-Berri that he was compelling the victim's submission to his advances. But the victim's testimony did not indicate *Page 27 that her fear, whatever its origin, was apparent or obvious to El-Berri. By her own admission, she wordlessly allowed him to escalate the encounter and engage in sex with her. {¶ 87} This analysis is not to suggest what the victim should or should not have done under the circumstances. But accepting her testimony as true, no reasonable trier of fact could conclude that there was evidence to show El-Berri knew that the victim did not consent to his actions. A defendant cannot be found to have compelled another to submit by force or threat of force when the evidence fails to show that the victim gave the defendant reason to know that she was being compelled. Under the circumstances of a case like this one, without any affirmative evidence showing lack of consent, a defendant will have no reason to know that his advances are unwelcome and therefore non-consensual. {¶ 88} The majority finds compelling as evidence of the element of force the victim's statement that El-Berri "bent" her over the couch to have sex with her. The victim's use of the word "bent," standing alone, does not establish that El-Berri used force. Indeed, the most detailed account of his actions is given by the victim's testimony in response to being asked to describe the scenario where she states, "Like he put my arms on the couch and bent me over." A fair reading of the testimony shows that El-Berri positioned her over the couch rather than forced her over it against her will as the majority. This conclusion is consistent with the absence of any other testimony to show that El-Berri used force of any *Page 28 kind during this part of their encounter. For each action he made, whether rubbing her back, removing her clothes or bending her over the couch, the victim made no outward manifestation whatsoever that any of these actions were unwanted or that she was scared. A mere reference to being bent over the couch does not amount to force under these circumstances. {¶ 89} The majority likewise errs by accepting the argument that the victim was only 16 and one-half years old at the time and could not be expected to have the emotional or practical experience necessary to deal with the situation that was presented in this case. {¶ 90} In State v. Eskridge (1988), 38 Ohio St.3d 56, Eskridge was convicted of raping his four-year-old daughter and sentenced to life imprisonment on a finding that he used force during the commission of the rape. This court reversed the life sentence because it concluded that the state failed to present any evidence that Eskridge used force. The supreme court reversed this court, stating in paragraph one of the syllabus that "[t]he force and violence necessary to commit the crime of rape depends upon the age, size and strength of the parties and their relation to each other. With the filial obligation of obedience to a parent, the same degree of force and violence may not be required upon a person of tender years, as would be required were the parties more nearly equal in age, size and strength." In reaching this conclusion, the supreme court noted that the element of force as charged in a rape case "need not be overt and *Page 29 physically brutal, but can be subtle and psychological." Id. at 58-59. {¶ 91} In State v. Schaim, 65 Ohio St.3d 51, 1992-Ohio-31, the supreme court considered an appeal in which Schaim had been convicted of repeatedly demanding sex from his 19-year-old daughter in exchange for granting her certain privileges, even though there had been no proof of force. The state argued that a pattern of incest could suffice to establish the force element. The supreme court rejected this argument, explaining that: {¶ 92} " State v. Eskridge is based solely on the recognition of the amount of control that parents have over their children, particularly young children. Every detail of a child's life is controlled by a parent, and a four-year-old child knows that disobedience will be punished, whether by corporal punishment or an alternative form of discipline. Because of the child's dependence on his or her parents, a child of tender years has no real power to resist his or her parent's command, and every command contains an implicit threat of punishment for failure to obey. Under these circumstances, a minimal degree of force will satisfy the elements of forcible rape. Id., paragraph one of the syllabus. {¶ 93} "The same rationale does not apply to an adult. No matter how reprehensible the defendant's alleged conduct, a woman over the age of majority is not compelled to submit to her father in the same manner as is a four-year-old girl. She is no longer completely dependent on her parents, and is more nearly their equal in size, strength, and mental resources. Although we are aware of *Page 30 the devastating effects of incest on its victims, and are sympathetic to the victim whose will to resist has been overcome by a prolonged pattern of abuse, we reluctantly conclude that a pattern of incest is not always a substitute for the element of force required by R.C. 2907.02(A)(2). A defendant purposely compels another to submit to sexual conduct by force or threat of force if the defendant uses physical force against that person, or creates the belief that physical force will be used if the victim does not submit. A threat of force can be inferred from the circumstances surrounding sexual conduct, but a pattern of incest will not substitute for the element of force where the state introduces no evidence that an adult victim believed that the defendant might use physical force against her." Id. at 55. {¶ 94} The victim in this appeal was 16 and one-half years old at the time of the incident, falling between the Eskridge "child of tender years" and the Schaim "woman over the age of majority." She was a sophomore in high school, had obtained her driver's license five months before the events in this case, worked, and at all times during the night of the incident had her cellular telephone with her. The victim had no filial relationship with El-Berri. She met El-Berri because he leased retail space in a store owned by her parents. She developed a close friendship with El-Berri's girlfriend and, on one or two occasions, even socialized with the girlfriend and El-Berri. When the girlfriend worked at the store owned by the victim's parents, the victim spent so much time *Page 31 with her that she became knowledgeable about El-Berri's business. He then hired her to work at his retail space located inside the store owned by the victim's parents, although that arrangement appeared to be informal. The victim testified that she earned a commission on each cell phone that she sold and El-Berri paid her in cash. The victim was unclear as to exactly how long she had worked at El-Berri's mall location, saying that it was "more than a week." {¶ 95} Unlike the four-year-old victim of incest in Eskridge, there is no evidence in this case to show or suggest that El-Berri had any type of control over the victim. Likewise, there was no evidence to show that the victim's age caused her to be so dependent on El-Berri that she capitulated to his advances because of fear or duress. The evidence shows that the victim was very friendly with El-Berri and his girlfriend and apparently comfortable enough around El-Berri to 1) ask him to drive her home, 2) consent to stopping at his house, 3) agree to go inside with him, and 4) go back inside the house with him to wait for a cab after the sexual encounter had occurred. Throughout all of the events in his house that led to the sexual encounter, the victim's only response to why she did not object to El-Berri's advances was "I don't know." This testimony was insufficient to show the kind of subtle coercion addressed inEskridge. The victim gave no outward indication of her state of mind, and admitted that she said nothing to El-Berri. She gave no nonverbal communication, either by hesitating, resisting or showing her fear, to communicate her lack of consent. *Page 32 Importantly, at no point in her testimony did the victim attribute her silence to being "scared." As events escalated, the victim remained silent, giving El-Berri no indication that his actions were unwanted. With the absence of force or subtle coercion, El-Berri could not know that his advances were unwelcome. To find otherwise would make the actions of any initiator in a sexual encounter no different from those of a rapist. III {¶ 96} With regard to the kidnapping count, I find no evidence to support the majority's assertion that El-Berri's "true purpose" was to "lure the victim to his house in order to engage in sexual activity with the victim against her will." Ante at 5. {¶ 97} Viewing the evidence in a light most favorable to the state shows that the victim, or her mother, asked El-Berri to give her a ride home. He drove past her exit on the freeway, and told her that he was "going to stop at his house and get something." When asked if that was "okay" with her, the victim said "yes." When they arrived at his house, El-Berri "asked me if I was going to come in. I said sure." They entered through the kitchen door. El-Berri walked through the kitchen and entered a different room — either the bedroom or the living room. The victim remained in the kitchen until he called for her to join him. The victim walked into the living room and El-Berri said something to her, but she could not recall what he said. He then began rubbing her back. *Page 33 {¶ 98} None of this evidence shows that El-Berri restrained the victim's liberty. As noted in the discussion of the rape count, El-Berri did not use any physical force or restraint against the victim. To the contrary, he asked for the victim's permission to stop at the house and she consented to enter. There is simply no evidence to show that El-Berri restrained the victim's liberty at any point in time. {¶ 99} The majority appears to conclude that El-Berri deceived the victim by bringing her to his house under pretense while all along intending to sexually assault her. {¶ 100} The word "deception" is not defined in R.C. Chapter 2905. However, R.C. 2913.01(A) defines "deception" as "knowingly deceiving another or causing another to be deceived by any false or misleading representation, * * * or by any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact." Although this definition does not expressly apply to R.C. Chapter 2905, it nonetheless conforms to the generally-accepted meaning of the word "deception," so I apply it here. See R.C. 1.42; State v. Young (July 28, 1992), Meigs App. No. 458. {¶ 101} The majority's assertion that El-Berri "lured" the victim to his house in order to engage in "sexual activity with the victim against her will" finds absolutely no support in the record. There is no evidence of any kind to show *Page 34 what El-Berri's intentions were as they drove from the mall. Even if one assumes that he did hope to engage in sexual activity with the victim, the trial testimony did not show that he intended to do so against her will. To the contrary, he asked for and received the victim's permission to stop at his house. Once at the house, he asked her if she wanted to come inside without any threat or hint of force or duress. Whatever El-Berri's intentions may have been, there is no evidence to show that he deceived the victim into entering his house. {¶ 102} The only evidence to show El-Berri's purpose in going to his house was the victim's testimony that he needed to stop by his house to get something. The victim did not know or did not say what El-Berri needed to retrieve from the house, but there is no question that he entered a least one other room of the house while she remained standing in the kitchen. This conduct at least supports the possibility that he accomplished his purpose of retrieving something from his house. At all events, El-Berri made no demonstrably false statements to the victim, and she willingly agreed to accompany him regardless of any unstated ulterior motive he may have had. IV {¶ 103} Having reviewed all the evidence in a light most favorable to the state, I find as a matter of law that the state failed to prove all the elements of rape and kidnapping beyond a reasonable doubt. Although there are jurisdictions that make it unlawful for someone of El-Berri's age to have sexual *Page 35 intercourse with a 16-year-old, 6 Ohio is not one of those jurisdictions. With the absence of force or threat of force, the state could only prove that a rape occurred by offering evidence that the victim did not consent to engaging in sexual conduct with El-Berri and that she communicated her lack of consent to him. The state failed to elicit any testimony from the victim showing that she communicated her lack of consent to El-Berri. As despicable as El-Berri's conduct on the night of this incident may be viewed, I find the evidence legally insufficient to establish the rape and kidnapping counts. I therefore dissent. 1 Section 213.1 of the Model Penal Code states, "(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if: (a) he compels her to submit by force or threat of force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; * * *." 2 "In its deliberations and as a guide, the Technical Committee and its staff relied on the Model Penal Code [MPC] of the American Law Institute, as well as the revised criminal codes from Illinois, New York and Wisconsin." Lehman and Norris, Some Legislative History and Comments on Ohio's New Criminal Code (1974), 23 Cleve.St. L.Rev 9. See, also,State v. Graven (1978), 54 Ohio St.2d 114, 122 (Celebrezze, J., dissenting) ("The General Assembly, in revising the Ohio Criminal Code, used the American Law Institute's Model Penal Code (1962) for guidance and language."). 3 Consent is considered a defense to rape, albeit not an affirmative defense. See State v. Gilliam (Sept. 30, 1999), Montgomery App. No. 17491; State v. Keeton, Richland App. No. 03 CA 43, 2004-Ohio-3676. 4 Some commentators have complained that courts have not been "interpreting `without consent' to mean the absence of what is popularly understood to be `consent,' yet instead have defined `without consent' as `without affirmative consent and with affirmative dissent,' thereby broadening the definition of consent to include acquiescence. See Note, Acquaintance Rape and Degrees of Consent: "No" Means "No," but What Does "Yes" Mean? (2004), Harv. L.Rev. 2341, 2348, fn.36, quoting Berliner, Note, Rethinking the Reasonable Belief Defense to Rape (1991), 100 Yale L.J. 2687, 2689. This line of thinking is arguably at odds with other aspects of the law which routinely hold that a failure to voice objection is tantamount to consent in situations where one would be expected to voice disapproval. It in essence puts one person involved in a sexual encounter in the position of being a mind-reader when the other person makes no physical, verbal or non-verbal communication of a lack of consent, and for that reason is impractical as a legal standard. 5 R.C. 2907.02(A)(1) defines a separate offense of rape that occurs when the offender engages in sexual conduct with a person other than a spouse and (a) substantially impairs that person's ability to consent by surreptitiously administering any drug, intoxicant, or controlled substance to the other person, (b) the other person is less than 13 years of age, or (c) the offender knows the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age. See R.C. 2907.02(A)(1)(a)-(c). The state did not charge El-Berri under R.C. 2907.02(A)(1), and there is no suggestion in the record that the victim lacked the ability to resist or consent, or that her ability to do so was substantially impaired by El-Berri. 6 See, e.g., Cal.Crim. Code 261.5(b)-(d); Col.Rev.Stat. 18-3-402; N.Y.Pen. Code 130.25(2). *Page 1

2016-07-06 06:36:10.63619+00

JOURNAL ENTRY and OPINION Plaintiff University Commons Associates Limited is a limited liability partnership which owned an apartment building in Cleveland. It hired defendant Commercial One Asset Management (Commercial Asset), Inc. to manage the property. Unfortunately, expenses exceeded rents and the mortgagor foreclosed on the property. University Commons sold the property using a separate company, Commercial One Realty, Inc. (Commercial Realty) to broker the sale. Following the sale, University Commons brought this breach of contract, breach of fiduciary duty and negligence action against both Commercial Asset and Commercial Realty. Commercial Realty filed a motion for summary judgment in which it claimed it bore no liability in the management of the property since it was not a party to the management contract. The court agreed and granted partial summary judgment, certifying no just reason for delay. We are required to look at the facts and inferences in a light most favorable to University Commons and determine whether there is any genuine issue of material fact and whether Commercial Realty is entitled to judgment as a matter of law. See Civ.R. 56(C). The facts show that University Commons purchased the property in question in 1986, and Hagen managed the property himself. In 1995, Hagen hired Axiom Property Management Co. to manage the property and prepare it for sale. Hagen became dissatisfied with Axiom's performance, however, and in August 1996, contracted with Commercial Asset to manage the property. The management agreement between University Commons and Commercial Asset provided that Commercial Asset would manage the rent rolls, maintain the property, make disbursements on behalf of the University Commons, and make all debt service payments to the bank holding the mortgage on the property. In addition, the contract required Commercial Asset to render a monthly statement of receipts, disbursements and charges, as well as prepare financial statements and inform University Commons of the need to supplement the trust account with funds sufficient to ensure the continued operation of the premises. At the time the parties entered into the property management contract, Hagen informed Commercial Asset that he had no intention of putting more money into the property because he intended to sell it. To that end, he signed a broker's agreement with Commercial Realty beginning in October 1996 and running through April 1997. Commercial Realty actively marketed the property and received purchase offers for the property in January and February 1997. Hagen did not immediately respond to either offer. The management agreement between University Commons and Commercial Asset began well enough, but in March 1997 Hagen first learned that the bank holding the mortgage on the property had foreclosed. He claimed this was the first time he had been made aware that the property was in financial difficulty. The evidence conflicts on this point, for Commercial Asset claimed that it first notified Hagen of the financial difficulties in January 1997, but Hagen said that he did not receive these letters, nor did he receive financial statements for January, March and April 1997. We are obligated to resolve this difference most favorably to University Commons. In any event, Commercial Asset told Hagen that it had contacts with the bank holding the mortgage and it would negotiate terms with the bank. The terms that were negotiated remained unacceptable to Hagen because they included a sale of the property and required Hagen to pay forward on his own personal note that the bank held in a separate matter. Rather than agree to the terms necessary to avert final foreclosure, Hagen accepted an offer to sell the property. He accepted a price below what he wanted, and blamed the selling price on poor management by Commercial Asset. The substance of Commercial Realty's motion for summary judgment was that it was not a party to the management agreement and that all claims set forth in the complaint relate only to Commercial Asset. Commercial Realty argued that it was a separate entity from Commercial Asset and that it was not a party to the commercial real estate management contract signed in August 1996. Commercial Asset and Commercial Realty are run by David Holzer and Stephen Holzer, respectively. They were both separate corporations, and neither brother served on the board of directors of the other corporation. During the time frame in question, the two companies did not share office space or staff. Although the complaint named both Commercial Asset and Commercial Realty as defendants, the claims for relief were based on the commercial real estate management contract that Hagen signed with Commercial Asset. Paragraph 5 of the complaint alleges, On or about August 29, 1996, the Plaintiff entered into a contract know as a Commercial Real Estate Management Contract with Defendant, Commercial Asset * * *. Even though University Commons alleged that Commercial Realty acted both individually and as an agent of Commercial Asset in both negotiating the above-described contract with the Plaintiff and executing the terms of such after completion, none of the specific claims of breach can reasonably be applied to Commercial Realty. Those claims were set forth in paragraph 8 of the complaint: The Defendants, acting jointly and in concert with one another, breached the terms of the Plaintiff's contract with Commercial Asset by: (1) failing to properly maintain the trust account on behalf of the Plaintiff; (2) failing to properly disburse payment of all expenses related to the operation of the premises; (3) failing to make all debt service payments to the Plaintiff's mortgagee from the Plaintiff's trust account; (4) failing to render to the Plaintiff an accurate monthly statement of receipts, disbursements, and accounts; (5) failing to make available to the Plaintiff, upon reasonable notice, all financial records concerning the premises; (6) failing to adequately prepare an annual budget for the premises and provide monthly statements to the Plaintiff indicating actual versus budgeted figures; (7) failing to inform the Plaintiff in writing and with reasonable prior notice of the Plaintiff's need to supplement the Plaintiff's trust account with sufficient funds to ensure continued operation of the premises; and (8) generally failing to fulfill Commercial Asset [sic.] contractual obligations to the Plaintiff in a diligent fashion. An express contract is an exchange of promises where the parties communicate in some manner the terms to which they agree to be bound. Lucas v. Costantini (1983), 13 Ohio App.3d 367, 369. One of the essential elements of an express contract is a meeting of the minds, usually shown by an offer and acceptance. Noroski v. Fallet (1982), 2 Ohio St.3d 77,79; Nilavar v. Osborn (2000), 137 Ohio App.3d 469, 484. To recover on an express contract, the proponent must prove the existence of an agreement, based on a meeting of the minds and on mutual assent, to which the parties intend to be bound. A meeting of the minds is most often shown by a signed offer and acceptance. Cuyahoga Cty. Hospitals v. Price (1989), 64 Ohio App.3d 410, 416. None of the allegations contained within paragraph 8 of the complaint stem from any form of contract between University Commons and Commercial Realty. The allegations very clearly stem from the management contract, and it is undisputed that Commercial Realty was not a signatory to the contract. Commercial Realty had no obligations under the management agreement; therefore, any allegation that Commercial Realty had breached the management agreement would fail as a matter of law. University Commons concedes that Commercial Realty did not sign the management contract, but claims that the court should have pierced the corporate veil to find that Commercial Realty and Commercial Asset were the same entity. In its opposition to Commercial Realty's motion for summary judgment, University Commons argued that the contracts between it and both Commercial Asset and Commercial Realty were intertwined to the extent that one Commercial entity could not be distinguished from the other. Its sole means of proving this argument was to note that when negotiating the management agreement, University Commons and Commercial Asset agreed to strike a paragraph from the boilerplate management contract. That paragraph contained a standard commission clause applicable in the event Commercial Asset was the procuring cause of a sale of the property. Commercial Asset said it agreed to strike the clause since University Commons had previously agreed that Commercial Realty would be responsible for marketing and selling the property. An individual officer or shareholder of a corporation cannot be held liable for acts or debts of the corporation. Section 3, Article XIII of the Ohio Constitution. In some circumstances the rule against liability may be overcome with a showing that the corporation is the alter ego of an individual. Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, 287. The corporate form may be disregarded and individual shareholders held liable for wrongs committed by the corporation when: (1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those to be held liable was exercised in such a manner as to commit fraud or an illegal disregard the corporate entity, and (3) injury or unjust loss resulted to the plaintiff from such control and wrong. University Commons presented no facts to create a triable issue on corporate control. The facts show that Commercial Asset and Commercial Realty were sufficiently different in form and operation as to preclude operation of the alter ego doctrine. The two companies kept separate offices and at the time of the events giving rise to this action neither Holzer brother served on the board of directors of the other. No evidence tended to show that one corporation controlled the other corporation. Most importantly, University Commons cannot show that it suffered any injury as a result of alleged control by Commercial Realty. The allegations of the complaint all stemmed from breaches of the management agreement. Commercial Realty did not sign this agreement and no evidence was produced to show how Commercial Realty could have been responsible for any of the claimed breaches set for in paragraph 8 of the complaint. It was incumbent upon University Commons to come forward with evidence to the contrary and the best it could do was point out that Commercial Asset agreed to strike a standard commission clause because Commercial Realty had a preexisting broker's agreement with University Commons. There is nothing telling about Commercial Asset's agreement to strike the commission clause. In fact, University Common's own evidence showed that it was Hagen's idea to strike the clause. David Holzer testified that Peter was concerned that he would then be faced with a five percent commission to Commercial One Asset Management, Inc. as well as Commercial One Realty. University Commons' evidence is likewise self-defeating because David Holzer testified that Commercial Asset always included a standard commission clause in its management contract because if I am trying to secure the opportunity to sell a building for them down the road, it's often a paragraph * * * we always put in our boiler plate because it gives us the opportunity to participate in the sale. D. Holzer Aff. at 60-61. David Holzer's statement would suggest that Commercial Asset tried to land sales commissions on its own, completely apart from Commercial Realty. The only reasonable inference is that both Commercial Asset and Commercial Realty competed against the other. This would explain why University Commons asked Commercial Asset to strike the standard commission clause from the management agreement. Finally, University Commons claimed that questions of fact exist as to whether Commercial Realty owned any management duties, the breach of which would be actionable negligence. Aside from rearguing that Commercial Realty undertook to perform responsibilities that were assigned to Commercial Asset, University Commons argued to the court that questions of fact existed concerning Commercial Realty's negotiations with the bank that had foreclosed on the mortgage. While the rules of pleading do not require that a claim be alleged with precision, the complaint must still set forth operative facts showing the basis for the claim. See Civ.R. 8(A). In Stipanovich v. Applin (1991),74 Ohio App.3d 506, 510, the court stated: A pleading which sets forth a claim for relief need not state with precision all the elements which give rise to a legal basis for recovery as long as fair notice of the action is provided; however, the pleading must contain * * * allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial. University Commons' complaint came nowhere close to alleging that Commercial Realty was negligent in negotiating terms with the bank holding the mortgage on the property. Count 3 of the complaint simply alleged that by virtue of the above-described acts and omissions of the Defendants (a reference to paragraph 8 of the complaint) both Commercial Asset and Commercial Realty were negligent. As all of the allegations in paragraph 8 of the complaint stemmed from the management agreement which Commercial Realty did not sign, no duties under that agreement could have been breached. At the risk of putting too fine a point on our conclusion, it bears noting that the allegation of proximate cause contained in Count 3 of the complaint alleged that the negligence resulted in University Commons becoming delinquent in its mortgage payments. Again, this was solely a duty owed by Commercial Asset under the management agreement. The court did not err by granting summary judgment to Commercial Realty. The assigned error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its 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. MICHAEL J. CORRIGAN PRESIDING JUDGE ANN DYKE, J., and TERRENCE O'DONNELL, J., CONCUR.

2016-07-06 06:36:10.670163+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from the judgment of the Erie County Court of Common Pleas which, on April 14, 2003, ordered disbursement of funds held by the clerk of court to appellee, Whirley of Ohio, Inc., f.k.a. Sandusky Plastics, Inc. ("Whirley"). For the reasons that follow, we affirm the decision of the trial court. {¶ 2} This case has a long and protracted procedural history. In summary, this matter was originally filed as a wrongful death action relating to the 1987 death of Terry Garrett, Jr., appellant's son, who died as a result of injuries he sustained in a wave-action pool in Sandusky, Ohio. Following a jury trial in September 1989, appellant, Terry Garrett, Sr., received judgment against the city of Sandusky in the amount of $75,000.1 {¶ 3} Prior to trial, Whirley intervened and filed a complaint and cross-claims against the parties in the lawsuit to recover the medical expenses it paid on behalf of the decedent. Appellant never filed a response to Whirley's complaint/cross-claim and eventually, in December 1990, a default judgment was entered against appellant in favor of Whirley in the amount of $75,000. {¶ 4} Following this court's affirmance of the verdict against the city of Sandusky, see Garrett v. City of Sandusky (Feb. 14, 1992), Erie App. No. E-91-5, the trial court ordered that the city deposit with the clerk of court the sum of $85,686.99, in satisfaction of the judgment entered against it, plus interest to date. The May 15, 1992 order of the trial court stated that "the monies so deposited with the clerk herein shall not be disbursed until all matters in this case pending before the Ohio Supreme Court have been finally resolved at which time the parties herein may petition this court for refund or disbursement of these funds as may be appropriate in accordance with the supreme court's disposition of the appeal and cross-appeal." {¶ 5} To collect on its judgment against appellant, on February 17, 1994, immediately following the Ohio Supreme Court's affirmance of appellant's verdict against the city of Sandusky,Garrett v. City of Sandusky (1994), 68 Ohio St.3d 139, Whirley filed a motion requesting that all funds on deposit with the clerk be disbursed to Whirley. Appellant objected to Whirley's request and, on September 27, 1995, filed a motion to vacate the 1990 default judgment entered against him. The trial court denied appellant's motion to vacate and the matter was appealed to this court. During the pendency of that appeal, appellant's counsel, Geoffrey L. Oglesby, was permitted to withdraw on the basis that Oglesby's and appellant's interests were "now adverse." New counsel entered an appearance on behalf of appellant to conclude that appeal. {¶ 6} We affirmed the trial court's denial of appellant's motion to vacate the default judgment against him. See Garrettv. City of Sandusky (May 23, 1997), Erie App. No. E-96-047. We held that appellant never opposed Whirley's motion to intervene, thereby barring him from raising any issue regarding Whirley's intervention; that appellant was properly served with Whirley's complaint and cross-claim; and that the general division of the common pleas court, rather than the probate court, had subject matter jurisdiction to distribute the proceeds of this wrongful death claim. Id. On October 15, 1997, the Ohio Supreme Court declined to accept jurisdiction. {¶ 7} No action was taken by the trial court regarding Whirley's February 17, 1994 motion for distribution. In 2002, the Ohio Supreme Court assigned Judge Lawrence A. Grey to conclude this matter. On November 7, 2002, Whirley filed a second motion requesting that the deposited funds be disbursed to it. {¶ 8} On November 18, 2002, George Evans, with the law firm of Oglesby Oglesby, filed a notice of attorney lien and expenses.2 This notice stated that the firm of Oglesby Oglesby "was one of the duly authorized law firms designated by the Erie County Probate Court to represent the estate of young Mr. Garrett, Jr. and as such has accounting duties and other disbursement duties relative to the estate once the proceeds become available." Without specifying the amount to which the law firm was allegedly entitled, the notice merely stated that "these fees are the property of the attorney and the law firm that represented Mr. Garrett and would come to that firm prior to any alleged attachment, proper or otherwise." {¶ 9} On January 10, 2003, Attorney Evans also filed a motion for disbursement of funds. Evans asserted that Whirley did nothing to generate the funds which it seeks to attach. Insofar as Mr. Oglesby, and ostensibly his firm, did the work to generate the fund, the firm argued that it was entitled to recoup its legal fees and expenses prior to any other attachment. Evans implied that there was a contingent fee arrangement between appellant and Mr. Oglesby; however, no evidence of such an agreement was provided. {¶ 10} On March 21, 2003, a hearing was held on the issue of disbursement of the funds. Arguments were made by counsel for both sides. Given that the firm did not assert a lien on appellant's judgment until 2002, more than 13 years after the appellant's 1989 trial, the trial court questioned whether Oglesby Oglesby even had a valid lien for attorney fees. Additionally, because Whirley established its judgment against appellant "a way long time ago, long before the attorney lien," the trial court found that even "if it were a valid lien, it would be, at best, second to the claim of [Whirley]." {¶ 11} After the trial court made its findings, appellant made statements to the court, but never mentioned any alleged contingent fee agreement between him and the law firm. Evans then proffered that, if permitted, Mr. Oglesby would testify that there was a contingent fee agreement between him and appellant which provided that, subsequent to appeal, Oglesby was to collect 49 % percent of any award. In addition, Evans proffered a memorandum which ostensibly would describe the nature and extent of the alleged contingent fee agreement. This memorandum, however, was not the actual alleged agreement and, although the trial court instructed Evans to have the proffered memorandum file-stamped, there is no memorandum in the record and no reference is made to one on the court's journal. {¶ 12} In its April 14, 2003 judgment entry, the trial court held the following: {¶ 13} "This court finds that the default judgment in this case is against the plaintiff, Terry Garrett Sr., in his individual capacity. This Court further finds that the judgment and jury verdict against the city of Sandusky, and the proceeds thereon, and as deposited with the clerk of court, are not an asset of the estate of Terry Garrett Jr. This court further finds that the law firm of Oglesby Oglesby does not have a valid lien for attorney fees against the proceeds on deposit with the clerk of court, and in any event, such lien has not been timely asserted and is subordinate to the claim and lien of the intervenor plaintiff. {¶ 14} "It is therefore ordered, adjudged and decreed that the motions to disburse of the intervenor plaintiff are granted, that the motion of the plaintiff to disburse is denied. The clerk of this court shall disburse the sum of $85,686.99, with any accrued interest, to Whirley of Ohio, Inc., in care of its counsel * * *." {¶ 15} Appellant appealed the judgment of the trial court and raises the following assignments of error: {¶ 16} "Assignment of Error No. 1 {¶ 17} "The court erred and abused its discretion by not appropriately disbursing funds to the parties and properly disbursing attorney fees. {¶ 18} "Assignment of Error No. 2 {¶ 19} "The court erred by allowing the intervenor in the plaintiff's case in chief and not allowing for any payment of proper fees by the co-administrator." {¶ 20} In his first assignment of error, appellant argues that the attorneys representing the estate at the time of trial and during appeal had a lien for attorney fees and expenses on the judgment he obtained against the city of Sandusky. Appellant argues that the money should be transferred to the estate to allow the estate to dispose of this lien. Alternatively, appellant argues that the money should be released to the law firm of Oglesby Oglesby for the firm to take out its legal fees and expenses and then disburse the remaining amount as ordered by the court. {¶ 21} Appellant argues that an attorney's lien is founded on the equitable principle that an attorney is entitled to be paid his fees out of the judgment rendered in the case. Appellant further argues that such a lien has priority over any other lien or interest. {¶ 22} First, we note that the issue of whether the probate court has jurisdiction over the disbursement of the funds held on account is a matter already disposed of by this court. SeeGarrett v. City of Sandusky (May 23, 1997), Erie App. No. E-96-047. We clearly stated that the general trial division has jurisdiction to dispose of these funds. Second, we find that the trial court did not abuse its discretion in determining that the law firm of Oglesby Oglesby did not have a valid lien for attorney fees against the proceeds on deposit with the clerk of court, albeit for other reasons than those stated by the trial court. {¶ 23} Appellant is correct that, in general, Ohio courts recognize an attorney's equitable right to enforce a lien on a client's judgment, decree or award, for payment of attorney fees earned in the prosecution of litigation to judgment, and will lend their aid to maintain and enforce such a lien. See Mancinov. City of Lakewood (1987), 36 Ohio App.3d 219, 224. A lien against the client's judgment for payment of attorney fees is called a charging lien. Putnam v. Hogan (1997),122 Ohio App.3d 351, 354. Charging liens have been described as follows: {¶ 24} "`A special or charging lien may be created by an express agreement on the part of the client that the attorney shall have a lien for his compensation on the amount recovered. While, before judgment, an attorney has no lien upon or interest in the cause of action, in the absence of statute, yet where the parties have contracted that the attorney shall receive a specified amount of the recovery, such agreement will operate as an equitable lien in favor of the attorney.'" Mancino, supra at 224, citing, 6 Ohio Jurisprudence 3d (1978), Attorneys at Law, Sections 178-179, at 721-722; Section 183, at 725; and Foor v.Huntington Natl. Bank (1986), 27 Ohio App.3d 76. {¶ 25} Charging liens are generally superior to those of other creditors. Szymczak v. Szymczak (Sept. 12, 2002), Cuyahoga App. No. 79109, citing, Cohen v. Goldberger (1923),109 Ohio St. 22. However, only in proper cases will an attorney be able to enforce his equitable right to recover pursuant to a charging lien. See Mancino, supra at 224. "The decision of what constitutes a proper case is left to the sound discretion of the court of equity, the exercise of which should be based on the facts and circumstances of the case." Minor Child of Zentack v.Strong (1992), 83 Ohio App.3d 332, 334-335. A reviewing court should not reverse the equity court's decision unless there is an abuse of discretion. See Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219. {¶ 26} The party seeking equitable relief has the burden of providing the court of equity with every necessary evidence in aid of its contention. Zentack, supra at 335. Insofar as a charging lien may be created by an express agreement on the part of the client, the attorney seeking equitable relief pursuant to his lien must establish the existence of the contract between him and his client. See Id. "[A] naked affidavit by an attorney, without a copy of the agreement of the parties or an affidavit of the attorney's client admitting to a contingent fee agreement, is insufficient as a matter of law to operate as proof of an equitable lien in favor of the attorney." Id. {¶ 27} In this case, although Evans asserted that Oglesby and appellant had a contingent fee agreement between them, no written agreement was entered into evidence and appellant never testified as to its existence. Accordingly, we find that appellant, and the law firm seeking to enforce its alleged lien, failed to establish the existence of any contingent fee agreement. The absence of the existence of an actual fee agreement is fatal to any claim the law firm may have had for attorney fees in this case. We therefore find that the trial court did not err in awarding the entire amount on deposit to Whirley, which has a valid and enforceable judgment against appellant. Appellant's first assignment of error is therefore found not well-taken. {¶ 28} Appellant argues in his second assignment of error that the trial court erred in allowing Whirley to intervene into appellant's case, that the money on deposit with the clerk must be distributed by the probate court, and that Whirley did not have a lawful right of subrogation against appellant. We have already determined each of appellant's arguments in Garrett v.City of Sandusky (May 23, 1997), Erie App. No. E-96-047. As such, any further arguments in regard to these issues are barred by the doctrine of res judicata. Appellant's second assignment of error is therefore found not well-taken. {¶ 29} On consideration whereof, the court finds substantial justice has been done the party complaining and the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the court costs of this appeal. Judgment affirmed. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. Peter M. Handwork, P.J., Richard W. Knepper, J., Judith AnnLanzinger, J. Concur. 1 Prior to trial, all other plaintiffs, except for appellant, had settled their claims against the city of Sandusky. 2 Appellant's former counsel, Geoffrey Oglesby, had been permanently suspended from the practice of law by this time. SeeDisciplinary Counsel v. Oglesby (2000), 90 Ohio St.3d 455.

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DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Appellant/cross-appellee Keffler Construction Co. and appellee/cross-appellant Anderson Transportation Co. appeal from judgment entered in the Summit County Court of Common Pleas. We affirm. I. On September 16, 1994, a semi tractor-trailer, owned by Anderson Transportation Co. and operated by an Anderson employee, traveled westbound on I-76 in Summit County. When the semi reached the Medina Line Road overpass, it collided with a piece of construction equipment (a manlift) owned by Keffler Construction Co. The manlift was present on the highway for Keffler's use in a construction project on the overpass. Anderson filed a complaint against Keffler in the Summit County Court of Common Pleas on August 7, 1995, alleging the collision resulted from Keffler's negligence. The trial court later consolidated the action with a suit filed by Keffler and Great Western Insurance Co. against Anderson, wherein Keffler and Great Western alleged the negligence of Anderson and its driver caused the accident. A jury trial commenced in the matter on March 31, 1997. The jury returned a verdict in Anderson's favor in the amount of $65,000. Anderson moved the trial court to grant prejudgment interest, and the trial court denied the motion. Keffler then timely appealed the judgment and Anderson cross-appealed on the issue of pre-judgment interest. II. Keffler offers two assignments of error for our review; Anderson presents two cross-assignments of error. We afford each separate consideration. A. Keffler's First Assignment of Error The Trial Court erred by instructing the jury that if[Keffler] failed to comply with certain provisions of the OhioManual of Uniform Traffic Control Devices then [Keffler] wasnegligent as a matter of law. In the first assignment of error, Keffler maintains the trial court improperly instructed the jury that if it found Keffler violated certain provisions of the Ohio Manual of Uniform Traffic Control Devices, it must find Keffler was negligent per se. Applying the two-issue rule, we find the assignment of error lacking in merit. The two-issue rule applies where error in the charge of the court dealing exclusively with one of two or more complete and independent issues required to be presented to a jury in a civil action will be disregarded, if the charge in respect to another independent issue which will support the verdict of the jury is free from prejudicial error, unless it is disclosed by interrogatories or otherwise that the verdict is in fact based upon the issue to which the erroneous instruction related.Gallagher v. Cooper (1984), 14 Ohio St.3d 41, 42, quoting Bush v.Harvey Transfer Co. (1946), 146 Ohio St. 657, paragraph three of the syllabus. (Emphasis omitted.) We believe the case at bar provides a paradigm for application of the two-issue rule. In the case sub judice, the trial court gave the challenged instruction, stating that "one who violates a statute which imposes a specific duty is guilty of negligence as a matter of law[.]" However, the trial court additionally instructed the jury regarding ordinary negligence, charging that "[i]f either plaintiff or defendant by the use of ordinary care should have foreseen some injury or damage and should not have acted, or if they did act, should have taken precautions to avoid the result, then the performance of the act or the failure to take such precautions is negligence." Keffler failed to submit interrogatories to the jury to determine the reasoning behind the verdict. The jury's verdict could be supported by either one of the theories of negligence charged. Therefore, even if the per se negligence instruction was erroneously given, because the trial court properly instructed the jury on another issue which could have produced the same verdict, the judgment must be upheld.1 Accordingly, Keffler's first assignment of error is overruled. B. Keffler's Second Assignment of Error The Trial Court abused its discretion by admitting testimonyby [Anderson's] expert witness regarding the standard of care tobe exercised by a construction company working on an interstatehighway, and allowing the witness to render an opinion that thecompany breached that standard of care, in the absence ofevidence that the witness possessed any specialized knowledge,skill, experience, training, or education regarding the subjectmatter of the testimony. Keffler's second assignment of error challenges the trial court's admission of testimony by Anderson's expert witness, Gerald Schultz. The assignment of error is not well taken. Keffler maintains the trial court abused its discretion when it permitted Gerald Schultz to testify regarding traffic control in highway construction zones, arguing Schultz lacked a civil engineering or construction background. Keffler concludes that, in the absence of such a background, Schultz was incapable of offering an expert opinion regarding the accident giving rise to the case sub judice. We disagree. The opinions of a qualified expert will be admitted provided the testimony will assist the trier of fact. Evid.R. 702. To qualify as an expert, it is not necessary that the witness be the best witness on the subject. Steele v. Buxton (1994), 93 Ohio App.3d 717,719. "The expert must demonstrate some knowledge on the particular subject superior to that possessed by an ordinary juror." Scott v. Yates (1994), 71 Ohio St.3d 219, 221. This court will not disturb the decision of the trial court to admit expert testimony absent an abuse of discretion. Id. To find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable. Rock v. Cabral (1993), 67 Ohio St.3d 108, 112. The record in the case at bar does not support such a finding. Review of the record indicates Schultz possessed extensive training in the field of accident investigation and reconstruction. In his thirty-seven years investigating accidents, Schultz testified he became familiar with the Ohio standards for traffic control. He stated that, through his investigation experience, he learned the proper methods for closing down lanes of travel for highway construction. While Schultz may not hold a civil engineering degree, and there may exist a better traffic control expert, he clearly demonstrated a knowledge of traffic control superior to that of an ordinary juror. As such, we cannot conclude the trial court abused its discretion in admitting Schultz's testimony regarding traffic control standards. Accordingly, Keffler's second assignment of error is overruled. C. Anderson's First Cross-Assignment of Error The Trial Court erred by not holding an evidentiary hearingupon [Anderson's] motion for pre-judgment [sic]interest, and abused its discretion by not granting[Anderson's] motion for pre-judgment [sic]interest. Anderson herein argues the trial court erred because it fail to hold a "mandatory hearing" on Anderson's motion for prejudgment interest. We disagree. "R.C. 1343.03(C) permits a post-judgment award of prejudgment interest in tort claims when the liable party failed to make a good faith effort to settle the case." Akron Precision Striping,Inc. v. Conley (Oct. 17, 1990), Summit App. No. 14619, unreported at 6. R.C. 1343.03(C) further provides for a hearing on a party's motion for prejudgment interest. However, this court has previously held that "[t]he hearing contemplated in R.C.1343.03(C) is not mandatory but may be held at the discretion of the trial court." Id. at 7. Following a trial, the court possesses sufficient information about a case to determine whether a motion for prejudgment interest might succeed. Novak v. Lee (1991), 74 Ohio App.3d 623, 631. If it appears that no award is likely, the trial court has the discretion to decline to hold a hearing. Id. Upon review of the record, we find the trial court in the case at bar acted within its discretion when it declined to hold a hearing on Anderson's motion for prejudgment interest. Anderson also contends the trial court erred in denying its motion for prejudgment interest. The decision to award prejudgment interest lies within the sound discretion of the trial court. Akron Precision Striping, supra, at 6; see, also, Kalainv. Smith (1986), 25 Ohio St.3d 157, 159. After careful examination of the record, we find no indication the trial court abused its discretion in denying Anderson's motion. In light of the foregoing, Anderson's first cross-assignment of error is overruled. D. Anderson's Second Cross-Assignment of Error The granting of prejudgment interest absent any showing offailure of good faith upon damages incurred by a breach ofcontract but requiring such showing of lack of good faith indamages based upon a tort is a violation of the equal protectionclause [sic], § 2, Article I, of the OhioConstitution. In the second cross-assignment of error, Anderson challenges the constitutionality of of R.C. 1343.03, arguing it violates the Equal Protection Clause of the Ohio Constitution. Anderson maintains the statute discriminates against plaintiffs in tort actions. We find this contention lacking in merit. In determining the constitutionality of a statute enacted by the legislature, this court must begin with the presumption that the statute is "constitutional unless shown beyond a reasonable doubt to violate a constitutional provision." Beagle v. Walden (1997), 78 Ohio St.3d 59, 61, quoting Fabrey v. McDonald PoliceDept. (1994), 70 Ohio St.3d 351, 352. We must further remember that "[t]he legislature is the primary judge of the needs of public welfare," and the judiciary may not "nullify the decision of the legislature except in the case of a clear violation of a state or federal constitutional provision." Id., quoting Savoiev. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 515 (Moyer, C.J., dissenting). Thus, we begin under the presumption that R.C.1343.03 does not violate the Equal Protection Clause of the Ohio Constitution. "A statutory classification which involves neither a suspect class nor a fundamental right does not violate the Equal Protection Clause of the Ohio or United States Constitutions if it bears a rational relationship to a legitimate governmental interest." Menefee v. Queen City Metro (1990), 49 Ohio St.3d 27,29. Anderson concedes R.C. 1343.03 involves neither a fundamental right nor a suspect class. However, Anderson maintains R.C.1343.03 affords a greater degree of protection to plaintiffs in contract actions than to tort plaintiffs. Anderson claims that, because the statute requires a tort plaintiff to prove a lack of good faith to be awarded prejudgment interest but makes no distinction between liquidated and unliquidated damages in a contract claim, it discriminates against tort plaintiffs. It contends that "no * * * legitimate state interest exists to provide the `rational basis' for unequal treatment[.]" We disagree. The damages sought by plaintiffs in tort actions are not the concrete, definable damages sought in contract actions. Because the dates and amounts of money due in contract actions are more easily ascertained than the often nebulous monetary value of injuries involved in tort actions, the State has a legitimate interest in requiring tort plaintiffs to prove a lack of good faith before awarding prejudgment interest. Thus, a rational relationship exists between R.C. 1343.03(A), (B), (C) and a legitimate policy interest of the State. As such, we find the statute does not violate the Equal Protection Clause of the Ohio Constitution. Accordingly, Anderson's second cross-assignment of error is overruled. III. Both of Keffler's assignments of error are overruled. Anderson's two cross-assignments of error are likewise overruled. The judgment of the Summit County Court of Common Pleas is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this court, directing the County of Summit Common Pleas Court to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to appellants. Exceptions. _________________________________ JOHN W. REECE, FOR THE COURT SLABY, P. J. DICKINSON, J., CONCUR 1 Keffler maintains the decision of the Ohio Supreme Court in H.E. Culbertson Co. v. Warden (1931), 123 Ohio St. 297, precludes application of the two-issue rule where two or more theories of negligence are at issue. We disagree, noting that the Supreme Court has since criticized the Culbertson decision for misunderstanding the two-issue rule, stating that "the use of the label, `two-issue rule,' has obscured the reason for the rule and resulted in decisions refusing to apply that rule where the reason for its application was present." Smith v. Flesher (1967), 12 Ohio St.2d 107, 111, n.

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OPINION Appellant North American Precast, Inc. ("North American Precast") appeals the decision of the Fairfield County Court of Common Pleas that granted summary judgment in favor of Appellee Suram Construction Company ("Suram") and Appellees Kantu and Urmila Patel ("Patels"). The following facts give rise to this appeal. In February 1997, Shrisitaram, Inc., a corporation controlled by Urmila and Kantu Patel, entered into a contract with Suram for the construction of an addition to a Hampton Inn. Shrisitaram, Inc. hired Suram, as the general contractor, after Suram submitted a bid of $977,000. A discrepancy exists as to whether additional work ordered by the Patels increased the contract sum to $1,036,000. Thereafter, Suram accepted a bid from North American Precast and entered into a contract with North American Precast to supply and install the precast floors, for the project, for the agreed upon price of $55,564. The contract between the Patels and Suram required the general contractor to obtain a performance and payment bond for the project. However, sometime after North American Precast contracted with Suram, the Patels and Suram modified the provision of the contract that required Suram to obtain a performance and payment bond. Instead, the Patels agreed to retain $100,000, from the first payment to Suram, to be held in lieu of a performance and payment bond. The contract entered into between the Patels and Suram contained a schedule of values for various aspects of the work. When that portion of the work or materials was completed, Suram would submit an application for payment. After reviewing the application, the architect on the project, Dwain Lee, would certify payment to First National Bank Zanesville, the bank holding the funds for the project. Pursuant to this procedure, Suram submitted an application for payment to the architect on August 11, 1997. The requested draw was $231,900. The application included a request for payment, in the amount of $58,800, for a Flexicore floor system provided by North American Precast. Although this amount was higher than the original contract price, the amount was within the scheduled value allotted for this portion of the project, which was $77,633. The architect certified that the bank could pay $227,615. However, the bank only released $127,615 and retained $100,000 pursuant to the agreement entered into between the Patels and Suram. On September 24, 1997, Suram submitted another application for payment. In this application, Suram requested an additional $55,560 for the materials provided by North American Precast. Thus, Suram's total request for payment, between the two draws, was $114,560. However, because the second request by Suram exceeded the allotted scheduled value of $77,633, the architect limited payment to an additional $18,833. Thus, Suram received a total of $77,633 for the materials provided by North American Precast. Subsequently, the Patels terminated Suram as the general contractor on the project due to alleged repeated failures to perform the contract in a timely and workmanlike manner. At the time of the termination, the architect estimated that Suram completed seventy to seventy-two percent of the work on the project and authorized an amount of seventy-two percent of the total contract, less $100,000 retainer, certified for payment. Suram received a total of $455,517 for work it performed on the project. North American Precast received no payment for the work it performed on the project. On November 14, 1997, North American Precast filed a complaint, in the Summit County Court of Common Pleas, against Suram and the Patels. Pursuant to a motion filed by the Patels, the Summit County Court of Common Pleas transferred this matter to the Fairfield County Court of Common Pleas. Following the transfer, on August 26, 1999, Suram filed a cross-claim against the Patels. The Patels filed a cross-claim against Suram on September 14, 1999. Thereafter, the Patels filed a motion for summary judgment. The trial court granted the Patel's motion for summary judgment on March 3, 2000. North American Precast filed a motion for reconsideration on March 16, 2000. Suram and the Patels filed a joint dismissal of their cross-claims on April 25, 2000. On May 11, 2000, the trial court denied the motion for reconsideration. North American Precast filed its notice of appeal and sets forth the following assignments of error for our consideration: I. THE TRIAL COURT ERRED BY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THAT THERE ARE OUTSTANDING MATERIAL ISSUES OF FACT AND DEFENDANTS ARE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. II. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANTS-APPELLEES FULLY PAID THE GENERAL CONTRACTOR FOR MATERIALS SUPPLIED BY AND WORK PERFORMED BY PLAINTIFF-APPELLANTS (SIC), DESPITE CONTRARY EVIDENCE IN THE FORM OF AFFIDAVITS AND DOCUMENTARY EVIDENCE PRESENTED TO THE COURT. Summary Judgment Standard Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35,36. As such, we must refer to Civ.R. 56 which provides, in pertinent part: Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, citing Dresher v. Burt (1996), 75 Ohio St.3d 280. It is based on this standard that we review North American Precast's assignments of error. I, II We will address North American Precast's First and Second Assignments of Error simultaneously. North American Precast contends, in these assignments of error, that the trial court erred when it granted summary judgment in this matter because the Patels did not fully pay Suram for materials supplied and work performed. We agree. In order to recover under a theory of unjust enrichment, a plaintiff must prove by a preponderance of the evidence: (1) the plaintiff conferred a benefit upon the defendant, (2) the defendant had knowledge of such benefit, and (3) for him to retain that benefit under circumstances where it would be unjust for him to retain that benefit without payment. Wickford Metal Products v. Tri-Village Church of Christ, Inc. (Dec. 1, 1998), Licking App. No. 98CA47, unreported, at 3, citing Hambleton v. R.C. Barry Corp. (1984), 12 Ohio St.3d 179, 183. See also, Hummel v. Hummel (1938),133 Ohio St. 520, 525. In the case sub judice, North American Precast argues that based on the affidavits and other evidence it submitted in opposition to the Patel's motion for summary judgment, the trial court incorrectly concluded that it would not be unjust for the Patels to retain the benefit of the precast flooring without paying for it. In support of this argument, North American Precast cites to the following evidence. First, the affidavit of Jesse Childers, Vice-President of North American Precast, provides that North American Precast and Suram agreed to a contract price of $55,564 for the flooring and that Suram did not pay any money for the work performed or materials supplied by North American Precast for the project. Second, the affidavit of Dwain Lee, dated December 20, 1999, indicates that the contract sum for the project, including additional work requested by the Patels, was $1,036,000. Mr. Lee also reviewed the manner in which the draws were paid and the amounts paid for each draw. Specifically, under the first draw, Mr. Lee allotted $58,800 for flooring expenses, which was the amount requested by Suram in their application for payment. Under the second draw, Mr. Lee allotted $18,833 for flooring expenses, which is $36,727 less than Suram requested. The record indicates Mr. Lee only awarded $18,833, under the second draw, in order to remain within the $77,633 dollar amount designated in the schedule of values. Mr. Lee also indicates, in his affidavit, that he did not direct the bank to make any check payable to North American Precast and that the total payments on the project, after completion of the entire project, was $948,227. Based on this evidence, North American Precast argues that had the Patels, on the first and second draw, paid over $217,000 to which Suram was entitled, Suram would have been able to pay North American Precast for the flooring installed on the project. North American Precast also argues that at the time the contract terminated, the total dollar amount of the payments made to Suram comprised less than forty-four percent of the contract price even though Mr. Lee stated in a letter to the Patels that Suram, at the time it left the project, had completed seventy to seventy-two percent of the project. Finally, North American Precast argues that the trial court incorrectly determined that the Patels paid more than the contract price of the project. We find a question of material fact exists as to the total dollar amount the Patels actually paid for the completion of the project. The trial court relied on the affidavit of Mr. Patel in which he states that he paid a total of $1,187,749 to complete the project. In Mr. Lee's affidavit attached to the Patels' motion for summary judgment, dated November 8, 1999, Mr. Lee avers that "[a]s a result of the failure of Suram to fulfill its obligations under the contract Shrisitaram (the Patels' corporation) was ultimately required to pay at least $1,187, 749.00 for a project that was to cost only $977,000.00." See Affidavit Dwain Lee at paragraph 25. However, in an affidavit attached to North American Precast's response to the Patel's motion for summary judgment, dated December 20, 1999, Mr. Lee indicates the contract price of the project was $1,036,000, not $977,000. Mr. Lee also states, in this affidavit, that he certified payments, from the bank, for the completion of the project, in the amount of $948, 227. See Affidavit Dwain Lee at paragraph 21. We conclude this discrepancy, in the actual dollar amount paid by the Patels for the cost of the project, creates an issue of material fact for a jury to decide. The trial court concluded that the Patels were entitled to summary judgment because they paid nearly $200,000 more than the original contract price. The trial court based its calculation on the cost to complete the project according to Mr. Patel ($1,187,749) less the contract price agreed to by the Patels and Suram ($977,000). In reaching this conclusion, the trial court relied on the Wickford case, supra, and other case law that provides that a materialman is barred from recovering against the owner if the owner has paid the full price to a contractor. Based on its calculations that the Patels paid over $200,000 more than the contract price, the court found North American Precast barred from recovering against the Patels. However, due to the discrepancies that exist between the two affidavits filed by Mr. Lee as to the actual dollar amount of the contract as agreed to by the Patels and Suram and the actual dollar amount the Patels paid to complete the project, material issues of fact exist for a jury to decide. We also find a material issue of fact exists concerning whether the Patels paid Suram for the amount of work it actually completed on the project. Specifically, this relates to the fact that Mr. Lee stated, in a letter dated December 11, 1997, to the Patels, that "[b]ased on my observation, I estimate the work is 70-72% complete at present and I authorize that an amount equal to 72% of the total contract, less the $100,000 retainer, is (sic) certified for payment." Seventy-two percent of the contract price if the contract price is $977,000, less the $100,000 retainer, is $603,440. Seventy-two percent of the contract price if the contract price is $1,036,000, less the $100,000 retainer, is $645,920. No matter which figure is used for the contract price, the record indicates that Suram only received a total of $555,517 from the Patels for the work it performed on the project. Based on these two issues of material fact, we conclude the trial court improperly granted summary judgment in this matter. North American Precast's First and Second Assignments of Error are sustained. For the foregoing reasons, the judgment of the Court of Common Pleas, Fairfield County, Ohio, is hereby reversed and remanded for proceedings consistent with this opinion. _____________ Wise, J. Edwards, P.J., and Farmer, J., concur.

2016-07-06 06:36:10.983162+00

DECISION Plaintiff-appellant/cross-appellee Teresa Gergacz appeals from the judgment of the trial court granting a divorce to her and defendant-appellee/cross-appellant David Gergacz. David Gergacz filed a cross-appeal from the judgment. In her two assignments of error, Mrs. Gergacz claims that the trial court erred in finding that a settlement agreement entered into by Mr. Gergacz with a former employer, Cincinnati Bell Telephone, was separate property and therefore not subject to division as marital property. Teresa and David Gergacz moved to Cincinnati, Ohio, in 1995, when Mr. Gergacz became employed with Cincinnati Bell. In October 1996, an employment dispute arose between Mr. Gergacz and Cincinnati Bell, with each party accusing the other of breaching the employment contract. The parties eventually entered into a settlement of their claims. Although the settlement agreement stated that both parties released all claims against the other, Mr. Gergacz and his attorney testified that the sole consideration for the settlement, which amounted to $1.5 million, was a non-compete provision to which Mr. Gergacz had agreed. The magistrate, before whom the parties initially presented evidence, held that the settlement was marital property, but the trial court sustained Mr. Gergacz's objections to the magistrate's findings and held that the settlement was separate property. The characterization of property as separate or marital is a mixed question of law and fact, and the decision of the trial court will not be overturned if the decision is supported by sufficient, credible evidence.1 In this case, sufficient, credible evidence supports the trial court's characterization of the settlement as separate property. Both Mr. Gergacz and his attorney testified that the settlement's sole consideration was the non-compete agreement. Mrs. Gergacz presented no evidence to contradict this testimony. Although the settlement agreement itself stated that each party was releasing the other from all claims, the trial court had evidence before it that the payment of the $1.5 million was for Mr. Gergacz's agreement not to compete with Cincinnati Bell in the future. We, therefore, overrule Mrs. Gergacz's assignments of error. In his first assignment of error, David Gergacz claims that the trial court erred in awarding Mrs. Gergacz spousal support of $7,500 per month for 72 months. Awards of spousal support are governed by R.C. 3105.18, which states in part: (C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors: (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 [3105.17.1] of the Revised Code; (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; (j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party; (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each party, of an award of spousal support; (m) The lost income production capacity of either party that resulted from that party's marital responsibilities; (n) Any other factor that the court expressly finds to be relevant and equitable. We review the trial court's award of spousal support using an abuse-of-discretion standard.2 "Abuse of discretion" is more than an error of law or judgment; it implies that the court acted in an unreasonable, arbitrary, or unconscionable fashion.3 If there is some competent, credible evidence to support the trial court's decision, there is no abuse of discretion.4 The magistrate's findings of fact and conclusions of law, adopted with only minor exceptions by the trial court, provide competent, credible evidence to support the trial court's award. The record shows that the magistrate considered all of the factors enumerated in R.C. 3105.18, particularly the parties' income from all sources; their relative earning abilities; their ages and physical, mental, and emotional conditions; the duration of the marriage; the standard of living that the parties had established during the marriage; the extent of each party's education; and the parties' relative assets and liabilities. The order of support was structured so that support would cease when Mr. Gergacz retired from full-time employment, which the parties, while married, had contemplated to be at the end of his five-year contract with Cincinnati Bell. After Mr. Gergacz's retirement, the parties had planned to live on the income provided by their investments, and this plan was reflected in the court's spousal support award. The trial court also considered the time and expense necessary for Mrs. Gergacz to acquire education, training, or job experience so that she would be qualified to obtain appropriate employment, but noted specifically that Mrs. Gergacz had not, in fact, sought education, training or employment. We find no abuse of discretion in the trial court's award of spousal support. Mr. Gergacz also argues that the trial court erred in ordering him to contribute to Mrs. Gergacz's attorney fees. R.C. 3105.18(H) states that the court may award reasonable attorney fees to a party, "if it determines that the other party has the ability to pay the attorney's fees that the court awards." When awarding fees, the court determines whether "either party will be prevented from fully litigating that party's rights and adequately protecting that party's interests if it does not award reasonable attorney's fees." In this case, the court specifically found that Mrs. Gergacz did not have the means to pay her attorney fees out of the temporary support that had been awarded after the application for divorce was filed. The trial court could reasonably have concluded that, without the means to pay her legal fees, Mrs. Gergacz's ability to protect her rights could be impaired. There was no question that Mr. Gergacz had the ability to pay the award. We find no error in the trial court's award of attorney fees. Mr. Gergacz further claims that the trial court erred in awarding Mrs. Gergacz $10,000 in moving expenses, when she presented evidence of only $7,500 in expenses. This assignment of error is not supported by the record. Although Mrs. Gergacz testified that she had spent $7,500 to move her property from the parties' former residence into storage, she also testified that she regularly paid a storage fee and insurance on the property. Because the trial court's award of $10,000 in moving expenses is supported by competent, credible evidence, we reject Mr. Gergacz's challenge to the award. In his second assignment of error, Mr. Gergacz argues that the trial court erred by adopting the magistrate's order regarding the division of the household property. A reviewing court is limited to a determination of whether, under the totality of the circumstances, the trial court abused its discretion in dividing the property.5 We find no abuse of discretion. Although Mr. Gergacz argues that the trial court was required to conduct a de novo review of the evidence presented to the magistrate, Civ.R. 53 specifically permits the trial court to "adopt, reject, or modify the magistrate's decision." The court was, therefore, authorized to accept as its own the findings of the magistrate. Next, Mr. Gergacz argues that Mrs. Gergacz failed to abide by the terms of the property division and that the division was inequitable. The magistrate and the trial court, however, specifically considered Mrs. Gergacz's failure to abide by the agreement and made specific orders requiring the return of certain property to Mr. Gergacz. Mr. Gergacz failed to produce evidence that the agreement itself was inequitable. Because competent, credible evidence supported the trial court's division of the household property, we overrule Mr. Gergacz's second assignment of error. Therefore, we overrule Mrs. Gergacz's and Mr. Gergacz's assignments of error and affirm the judgment of the trial court. Judgment affirmed. HILDEBRANDT, P.J., GORMAN and SHANNON, JJ. Raymond E. Shannon, retired, of the First Appellate District, sitting by assignment. 1 See Kelly v. Kelly (1996), 111 Ohio App.3d 641,676 N.E.2d 1210; McCoy v. McCoy (1995), 105 Ohio App.3d 651,664 N.E.2d 1012; see, also, Dooley v. Dooley (1998), Hamilton App. No. C-970616, unreported (citing Kelly v. Kelly, supra). 2 See Middendorf v. Middendorf (1998), 82 Ohio St.3d 397,696 N.E.2d 575; Kaechele v. Kaechele (1988), 35 Ohio St.3d 93,518 N.E.2d 1197 [93 N.E.2d 1197]; Martin v. Martin (1985),18 Ohio St.3d 292, 294-295, 480 N.E.2d 1112, 1114-1115. 3 See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219,450 N.E.2d 1140, 1142. 4 See Middendorf, supra; Ross v. Ross (1980), 64 Ohio St.2d 203,414 N.E.2d 426. 5 See Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131,541 N.E.2d 597, 599.

2016-07-06 06:36:11.5826+00

DECISION AND JUDGMENT ENTRY Appellant Brian Foster appeals the sexual predator determination of the Washington County Common Pleas Court. He asserts the following assignment of error: The trial court erred in designating Appellant a sexual predator. Finding no error, we affirm the trial court's judgment. On February 9, 1994, appellant was found guilty by a jury of four counts of rape in violation of R.C. 2907.02(A)(1)(b), three counts of gross sexual imposition in violation of R.C.2907.05(A)(4), and two counts of gross sexual imposition in violation of R.C. 2907.05(A)(1). Appellant was sentenced to two consecutive life sentences, to be served consecutively to a five-and-one-half-year term of imprisonment. At trial, appellant's niece testified that he raped her and touched her inappropriately many times from when she was eight years old until she was thirteen years old. Appellant threatened to kill her if she told anyone about the crimes. Appellant's nephew testified that appellant anally raped him and forced him to perform fellatio numerous times. He was in kindergarten when the incidents occurred. Appellant also threatened to kill his nephew if he told anyone about the crimes. During the trial, the court admitted appellant's confession to the crimes after it had denied a motion to suppress the confession. We affirmed appellant's convictions on direct appeal. State v. Foster (Dec. 22, 1994), Washington App. No. 94CA4, unreported. The trial court conducted a sexual predator determination hearing following a recommendation by the department of rehabilitation and correction that appellant be adjudicated as a sexual predator. See R.C. 2950.09(C). Neither party offered witness testimony. The state asked the court to adjudicate appellant a sexual predator based on the files and records, the pre-sentence investigation, the evidence presented and the statutory factors. Appellant's attorney argued that appellant was not guilty of the offenses and should not be deemed a sexual predator. The trial court found that the state proved, by clear and convincing evidence, that appellant is a sexual predator. In so finding, the court relied on the arguments presented, the files and records of the case, the pre-sentence investigation report and R.C. 2950.09(B), which delineates the factors the court must consider in making a sexual predator determination. Appellant timely appealed. "Sexual predator" is defined as a person who (1) has been convicted of or pleaded guilty to committing a sexually-oriented offense and (2) is likely to engage in the future in one or more sexually-oriented offenses. R.C. 2950.01(E). Before a court may adjudicate an offender as a sexual predator, it must find each of these elements established by clear and convincing evidence. R.C. 2950.09(B)(3). "Clear and convincing evidence" is a measure or degree of proof that is "more than a mere `preponderance of the evidence,' but not to the extent of such certainty as * * * `beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established." State v.Schiebel (1990), 55 Ohio St.3d 71, 74, quoting Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. When reviewing whether "clear and convincing" evidence supports the trial court's decision, we must examine the record and ascertain whether enough evidence existed to meet this burden of proof. See In re Adoption of Holcomb (1985), 18 Ohio St.3d 361,368. This type of review is deferential to the trial court. We will not overturn a trial court's judgment as against the manifest weight of the evidence if the record contains competent, credible evidence supporting each essential element of the case.Schiebel, supra, 55 Ohio St.3d at 74-75; Seasons Coal Co. v.Cleveland (1984), 10 Ohio St.3d 77, 80; C.E. Morris Co. v. FoleyConstruction Co. (1978), 54 Ohio St.2d 279, syllabus. When determining whether an offender should be classified as a sexual predator, a court must consider all relevant factors, including those listed in R.C. 2950.09(B)(2). See R.C.2950.09(C)(2)(b); see, also, State v. Meade (Apr. 30, 1999), Scioto App. No. 98CA2566, unreported (R.C. 2950.09[B][2] factors are designated to assist the court in making a sexual predator determination). The R.C. 2950.09(B)(2) factors are: (a) The offender's age; (b) The offender's prior criminal record regarding all offenses, including, but not limited to, all sexual offenses; (c) The age of the victim of the sexually oriented offense * * *; (d) Whether the sexually oriented offense * * * involved multiple victims; (e) Whether the offender used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting; (f) If the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense and, if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sexual offenders; (g) Any mental illness or mental disability of the offender; (h) The nature of the offender's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse; (i) Whether the offender, during the commission of the sexually oriented offense * * * displayed cruelty or made one or more threats of cruelty; (j) Any additional behavioral characteristics that contribute to the offender's conduct. A court is under no obligation to "tally up" the R.C.2950.09(B)(2) factors in any particular fashion. State v.Mollohan (Aug. 20, 1999), Washington App. No. 98CA13, unreported. A court may classify an offender as a "sexual predator" even if only one or two statutory factors are present, so long as the totality of the relevant circumstances provides clear and convincing evidence that the offender is likely to commit a future sexually-oriented offense. Id. A court may properly designate an offender as a sexual predator even in the absence of expert testimony from the state. Meade, supra. In this case, the court found that appellant has been convicted of a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses. The court relied on the following factors in determining that appellant is likely to engage in another sexual offense: (1) appellant's age at the time of offense; (2) appellant's prior criminal history; (3) the ages of the victims; (4) the nature and circumstances of the crimes; and (5) that a demonstrated pattern of abuse was shown. Appellant submits that he was thirty-six at the time of the trial and had no history of sexually oriented offenses. He had prior convictions for theft, operating a motor vehicle while intoxicated, and other minor traffic offenses. Appellant argues that these prior convictions have no bearing on his likelihood to commit another sexual offense in the future. "In determining an offender's propensity to commit future sex offenses, the trier of fact can use past behavior to gauge future propensity to commit crimes since past behavior is often an indicator of future violent tendencies." State v. Striley (Dec. 29, 1997), Clermont App. No. CA97-05-046, unreported, citing State v. Bartis (Dec. 9, 1997), Franklin App. No. 97APA05-600, unreported. While appellant has no prior convictions of a violent nature, appellant's past conduct indicates a clear disregard for the law. More importantly, however, the trial court relied on the fact that the victims were of a young age, that the crimes occurred over a long period of time, and that the circumstances of the crime were particularly abominable. While appellant's age and past criminal history in and of themselves may not have been sufficient, in combination with these other factors the totality of the circumstances provides clear and convincing evidence that appellant is likely to commit a future sexually-oriented offense. Appellant also argues that he should not be adjudicated a sexual predator as he denies his guilt in the underlying offenses. Appellant maintains that his confession was coerced and that he is attempting to challenge his convictions so the sexual predator adjudication is premature. As previously noted, appellant's direct appeal to this Court was denied. Likewise, appellant's motion for leave to file a delayed appeal to the Ohio Supreme Court was denied. State v. Foster (1997), 79 Ohio St.3d 1448. While he may appeal his convictions in the federal court system, appellant has cited no statutory requirement that the state delay the sexual predator determination until federal appeals are exhausted. Furthermore, appellant was found guilty by a jury. Therefore, the trial court properly found that appellant was convicted of a sexually oriented offense. In summary, the record reveals competent, credible evidence to support the conclusion that appellant is a sexual predator. We therefore overrule appellant's assignment of error and affirm the trial court's judgment. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant 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 Washington County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Kline, P.J. Evans, J.: Concur in Judgment and Opinion. For the Court BY: _________________________ William H. Harsha, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes afinal judgment entry and the time period for further appealcommences from the date of filing with the clerk.

2016-07-06 06:36:11.649461+00

DECISION {¶ 1} Relator, Keith Simonsen, filed this action, which requests that this court issue a writ of mandamus ordering respondent, Ohio Department of Rehabilitation and Correction ("ODRC"), to respond to his public records request. *Page 2 {¶ 2} We referred this matter to a magistrate pursuant to Civ. R. 53(C) and Loc. R. 12(M) of the Tenth District Court of Appeals. On March 7, 2008, the magistrate issued a decision, including findings of fact and conclusions of law, recommending that this court deny the requested writ and grant summary judgment to ODRC because ODRC had complied with relator's request. In our June 26, 2008 decision, we concluded the following: (1) the magistrate gave inadequate notice of the conversion of ODRC's motion to dismiss to a motion for summary judgment, but the error was harmless; (2) ODRC failed to comply with Civ. R. 56 when it attached to its motion an unauthenticated copy of the letter sent to relator and failed to submit an authenticated copy of the responsive records, but relator had done so; (3) summary judgment was improper because the record contained no admissible evidence that ODRC complied fully with relator's request; and (4) the magistrate had not addressed the issues of statutory damages and court costs. We remanded this matter to the magistrate for further proceedings. {¶ 3} On September 29, 2008, the magistrate issued a decision, including findings of fact and conclusions of law, finding that ODRC had complied with relator's request for records, but recommending that we award statutory damages in the amount of $1,000. (Attached as "Appendix A.") Both relator and ODRC filed objections to the magistrate's decision. {¶ 4} In a decision rendered on December 23, 2008, we sustained relator's objection insofar as he argued that ODRC had not shown that it had responded fully to his request for records. We granted a writ of mandamus ordering ODRC to submit *Page 3 evidence that it had responded fully to that request or, in the alternative, to provide all responsive records to relator and inform this court accordingly. {¶ 5} On January 13, 2009, ODRC filed with this court the supplemental affidavit of Vincent Lagana, staff counsel to ODRC. In the supplemental affidavit, Mr. Lagana states that, as of February 29, 2008, he had a good-faith belief that ODRC had responded fully to relator's request. After receipt of this court's December 23, 2008 decision, however, Mr. Lagana learned that additional responsive records, which ODRC had not provided to relator, existed. Mr. Lagana also states that ODRC's counsel provided these additional records to relator on January 12, 2009. {¶ 6} Based on Mr. Lagana's affidavit, we find that ODRC has responded fully to relator's request. Having so found, we consider ODRC's objection to the magistrate's prior award of statutory damages in the amount of $1,000. {¶ 7} As we detailed in our June 26, 2008 decision, in August 2007, relator made a public records request for a copy of the "Westlaw Correctional Facilities" contract and any documents relating to the negotiation of the contract. When he did not receive a response, he submitted at least one more request, in November 2007. Having still received no response from ODRC, relator filed this action on January 9, 2008. As relief, relator sought an order requiring ODRC to respond, an award of statutory damages and court costs, and any further just and proper relief. {¶ 8} In her September 29, 2008 decision, the magistrate recommended that this court award to relator statutory damages in the amount of $1,000. As effective September 29, 2007,R.C. 149.43(C)(1) provides that, if a court determines that the The magistrate incorrectly identified the effective date of this provision as September 9, 2007. *Page 4 public office failed to comply with its obligations under the Public Records Act to respond promptly to a request, the requestor "shall be entitled to recover" damages in the amount of $100 for each business day during which the public office failed to comply, beginning with the day on which the mandamus action was filed. The maximum award under the statute is $1,000. {¶ 9} Here, relator filed his mandamus complaint on January 9, 2008, and ODRC responded on February 11, 2008. The magistrate concluded that this 37-day time period was not prompt or reasonable. In its objection, ODRC does not challenge the factual basis of the magistrate's determination. Instead, ODRC asks us to consider the security issues that can arise from an inmate's request for records and the additional time necessary for an adequate review of responsive records. We acknowledge these concerns, particularly as they relate to inmate requests for records. Nevertheless, we conclude that these concerns do not justify ODRC's delayed response in this case. {¶ 10} Here, ODRC's February 11, 2008 letter acknowledged that relator's November 5, 2007 request arrived in ODRC's offices in the middle of November. ODRC did not respond at all to relator's request until three months later, and, when it did so, it gave no explanation for this three-month delay. ODRC did not, for example, explain that the request posed a potential security threat, that an extensive review had been necessary or that an exception applied to preclude release of the requested records. {¶ 11} In addition, we consider that ODRC did not respond fully to relator's request until after this court ordered ODRC to provide conclusive evidence that it had done so. Mr. Lagana states that ODRC's trial counsel sent additional records to relator *Page 5 on January 12, 2009, more than a year after the filing of relator's mandamus complaint. Under these circumstances, we conclude that ODRC did not respond promptly or within a reasonable time. {¶ 12} R.C. 149.43(C)(1) states: "The award of statutory damages shall not be construed as a penalty, but as compensation for injury arising from lost use of the requested information. The existence of this injury shall be conclusively presumed." Having concluded that ODRC's response did not comply with the Public Records Act, we must presume that ODRC's non-compliance caused an injury to relator. Therefore, we overrule ODRC's objection to the magistrate's determination that an award of statutory damages in the amount of $1,000 shall be awarded. SeeState ex rel. Parker v. Lucas Cty. Job Family Servs.,176 Ohio App.3d 715, 723, 2008-Ohio-3274, ¶ 38 (presuming injury from 100-day delay in providing records). {¶ 13} In conclusion, having overruled ODRC's objection, we award relator statutory damages in the amount of $1,000. We also order ODRC to pay the costs in this matter. Accordingly, ODRC is ordered to pay relator damages in the amount of $1,000 and all court costs. Objection overruled, statutory damages and court costs awarded. BROWN and McGRATH, JJ., concur. *Page 6 APPENDIX A {¶ 14} Relator, Keith Simonsen, has filed this original action requesting that this court issue a writ of mandamus ordering respondent, Ohio Department of Rehabilitation and Correction ("ODRC"), to respond to his public records request. Relator also seeks an award of statutory damages and court costs pursuant to R.C. 149.43(C)(2) and (C)(2)(a). *Page 7 Findings of Fact: {¶ 15} 1. Relator is an inmate currently incarcerated at Grafton Correctional Institution. {¶ 16} 2. In August 2007, relator made a public records request seeking documentation including a copy of a contract, any notes, correspondence, memoranda, or other record(s) that pertains to the negotiation between respondent and Thomson/West Company for a service called Westlaw Correctional Facilities. {¶ 17} 3. In its answer, ODRC admits that it received this request. {¶ 18} 4. Because he did not receive a reply, relator filed additional public records requests seeking the same documents. Specifically, on November 8, 2007, relator sent a letter, dated November 5, 2007, by certified mail to respondent seeking the following public records: * * * [A] copy of a contract made between the Ohio Department of Rehabilitation and Correction and the Thomson/West Company for a service called "Westlaw Correctional Facilities" which facilitates access to Westlaw published materials for ODRC prison law libraries. I am also requesting copies of any notes, correspondence (electronic or otherwise), memoranda, or any other record that pertains to the negotiation of the above-referenced contract. {¶ 19} 5. The certified return receipt was signed by an employee of respondent on November 13, 2007. {¶ 20} 6. Relator did not receive a reply to this public records request. {¶ 21} 7. On January 9, 2008, relator filed the instant mandamus action in this court seeking to compel ODRC to respond to his public records request. {¶ 22} 8. On February 11, 2008, ODRC sent relator 110 copied pages from documents in response to relator's public records request. *Page 8 {¶ 23} 9. On March 3, 2008, relator filed copies of various documents as evidence for this court's consideration. {¶ 24} 10. On July 22, 2008, ODRC filed its certified evidence. {¶ 25} 11. On August 18, 2008, ODRC filed a motion for summary judgment arguing that relator's mandamus action is moot because ODRC has provided him the documents which he requested and argues that this court should deny relator's request for statutory damages in the absence of respondent's failure to comply with an obligation under R.C. 149.43. {¶ 26} 12. On August 26, 2008, relator filed a cross-motion for summary judgment and a memorandum contra in reply to ODRC's motion for summary judgment. Relator argues that summary judgment should be granted in his favor because, although ODRC's February 11, 2008 letter stated that all relevant documents were included with that response, ODRC provided him additional documents on February 29, 2008. Relator also states that ODRC's February 11, 2008 letter provides that only relevant portions of West's responses were included. Relator has not provided a copy of any additional documents ODRC sent him after ODRC's February 11, 2008 response. {¶ 27} 13. The matter is currently before the magistrate on the motions for summary judgment. Conclusions of Law: {¶ 28} The Supreme Court of Ohio has set forth three requirements which must be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to the relief prayed for; (2) that respondent is under a clear legal duty to perform *Page 9 the act requested; and (3) that relator has no plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v.McMonagle (1983), 6 Ohio St.3d 28. {¶ 29} A motion for summary judgment requires the moving party to set forth the legal and factual basis supporting the motion. To do so, the moving party must identify portions of the record which demonstrate the absence of a genuine issue of material fact. Dresher v. Burt (1996),75 Ohio St.3d 280. Accordingly, any party moving for summary judgment must satisfy a three-prong inquiry showing: (1) that there is no genuine issue as to any material facts; (2) that the parties are entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, which conclusion is adverse to the party against whom the motion for summary judgment is made. Harless v. Willis DayWarehousing Co. (1978), 54 Ohio St.2d 64. {¶ 30} The appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act, is mandamus. State ex rel. Physicians Commt.for Responsible Medicine v. Ohio State Univ. Bd. of Trustees,108 Ohio St.3d 288, 2006-Ohio-903. R.C. 149.43 must also be construed liberally in favor of broad access, and any doubt must be resolved in favor of disclosure of public records. State ex rel. Cincinnati Enquirer v.Hamilton Cty. (1996), 75 Ohio St.3d 374. {¶ 31} R.C. 149.43 pertains to the availability of public records and provides, in pertinent part: (B)(1) Upon request * * * all public records responsive to the request shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. * * * [U]pon request, a public office or person responsible for public records shall make copies of the requested public record available at cost and within a reasonable period of time. If a public record contains information that is exempt from the duty to permit public *Page 10 inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt. * * * (2) To facilitate broader access to public records, a public office * * * shall organize and maintain public records in a manner that they can be made available for inspection or copying in accordance with division (B) of this section. A public office also shall have available a copy of its current records retention schedule at a location readily available to the public. If a requester makes an ambiguous or overly broad request or has difficulty in making a request for copies or inspection of public records under this section such that the public office * * * cannot reasonably identify what public records are being requested, the public office * * * may deny the request but shall provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office's or person's duties. (3) If a request is ultimately denied, in part or in whole, the public office * * * shall provide the requester with an explanation, including legal authority, setting forth why the request was denied. * * * * * * (7) Upon a request made in accordance with division (B) of this section * * * a public office * * * shall transmit a copy of a public record to any person by United States mail or by any other means of delivery or transmission within a reasonable period of time after receiving the request for the copy. The public office * * * may require the person making the request to pay in advance the cost of postage if the copy is transmitted by United States mail or the cost of delivery if the copy is transmitted other than by United States mail, and to pay in advance the costs incurred for other supplies used in the mailing, delivery, or transmission. Any public office may adopt a policy and procedures that it will follow in transmitting, within a reasonable period of time after receiving a request, copies of public records[.] * * * A public office that adopts a policy and procedures under this *Page 11 division shall comply with them in performing its duties under this division. * * * (C)(1) If a person allegedly is aggrieved by the failure of a public office * * * to promptly prepare a public record and to make it available to the person for inspection in accordance with division (B) of this section or by any other failure of a public office * * * to comply with an obligation in accordance with division (B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the public office * * * to comply with division (B) of this section, that awards court costs and reasonable attorney's fees to the person that instituted the mandamus action, and, if applicable, that includes an order fixing statutory damages under division (C)(1) of this section. * * * If a requestor transmits a written request by hand delivery or certified mail to inspect or receive copies of any public record in a manner that fairly describes the public record or class of public records to the public office * * * except as otherwise provided in this section, the requestor shall be entitled to recover the amount of statutory damages set forth in this division if a court determines that the public office or the person responsible for public records failed to comply with an obligation in accordance with division (B) of this section.* * * The amount of statutory damages shall be fixed at one hundred dollars for each business day during which the public office or person responsible for the requested public records failed to comply with an obligation in accordance with division (B) of this section, beginning with the day on which the requester files a mandamus action to recover statutory damages, up to a maximum of one thousand dollars. The award of statutory damages shall not be construed as a penalty, but as compensation for injury arising from lost use of the requested information. * * * * * * (2)(a) If the court issues a writ of mandamus that orders the public office * * * to comply with division (B) of this section and determines that the circumstances described in *Page 12 division (C)(1) of this section exist, the court shall determine and award to the relator all court costs. (b) If the court renders a judgment that orders the public office * * * to comply with division (B) of this section, the court may award reasonable attorney's fees subject to reduction as described in division (C)(2)(c) of this section. * * * (c) Court costs and reasonable attorney's fees awarded under this section shall be construed as remedial and not punitive. * * * {¶ 32} The purpose of the Ohio Public Records Act "is to expose government activity to public scrutiny, which is absolutely essential to the proper working of a democracy." State ex rel. Gannett SatelliteInfo. Network, Inc. v. Petro (1997), 80 Ohio St.3d 261, 264, quotingState ex rel. WHIO-TV-7 v. Lowe (1997), 77 Ohio St.3d 350, 355. Scrutiny of public records allows citizens to evaluate the rationale behind government decisions so government officials can be held accountable. See White v. Clinton Cty. Bd. of Commrs. (1996), 76 Ohio St.3d 416, 420. {¶ 33} As above indicated, public offices are required to promptly prepare records and transmit them within a reasonable period of time after receiving the request for the copy. The term "promptly" is not defined in the statute. However, statutes in other states give their agencies from between three and 12 days from the date the public records were requested to make the documents available. The word "prompt" is defined as "performed readily or immediately." Webster's Eleventh New Collegiate Dictionary (2005) 994. {¶ 34} Respondent argues that summary judgment should be granted in its favor because respondent has provided relator with copies of the requested documents. *Page 13 Respondent contends that the matter is now moot. As indicated below, respondent is only partly correct. {¶ 35} Respondent has provided relator with copies of the requested documents. As such, to the extent that relator's mandamus action seeks to compel respondent to produce those documents, the matter is moot. SeeState ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, at ¶ 23, quoting State ex rel. Cincinnati Enquirer, Div. of GannettSatellite Info. Network, Inc. v. Dupuis, 98 Ohio St.3d 126,2002-Ohio-7041, at ¶ 8. "In general, the provision of requested records to a relator in a public-records mandamus case renders the mandamus claim moot." However, R.C. 149.43(C)(1) provides for an award of statutory damages. In his mandamus complaint, relator specifically sought an award of statutory damages. This determination is not rendered moot simply because respondent has now provided relator with the documents he requested. {¶ 36} As indicated previously, the effective date of the amendments to R.C. 149.43 providing for an award of statutory damages is September 9, 2007. As such, it would not be proper to apply this requirement to relator's August 2007 request for documents. However, it does apply to relator's November 5, 2007 request, which was received by respondent on November 13, 2007. As the record indicates, relator filed his mandamus action seeking to compel the production of these documents from respondent on January 9, 2008, 37 business days from respondent's receipt of relator's request. The magistrate finds that 37 days is not prompt and is not reasonable. As such, the magistrate finds that relator is a person aggrieved by the failure of respondent to promptly prepare the documents relator sought and that relator is entitled to statutory *Page 14 damages in the amount of $100 per day beginning with the date his mandamus action was filed, but not to exceed $1,000. Relator's mandamus action was filed January 9, 2008, and respondent sent him the requested records February 11, 2008. Clearly, more than ten days elapsed from the date relator's mandamus action was filed to the date respondent replied. As such, the magistrate finds that relator is entitled to $1,000, the maximum amount of statutory damages permitted under the statute. {¶ 37} As noted previously, the fact that respondent ultimately complied with relator's request for documents does not render moot relator's entire action. As such, although a writ of mandamus is no longer necessary to compel respondent's compliance, the magistrate has found that respondent failed to promptly prepare the documents requested by relator in a reasonable amount of time and that relator is entitled to an award of statutory damages in the amount of $1,000. As such, respondent's motion for summary judgment is denied and this court should issue summary judgment in favor of relator and should order the Ohio Department of Rehabilitation and Correction to pay relator $1,000 in statutory damages. *Page 1

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DECISION AND JOURNAL ENTRY {¶ 1} Appellant, Alonzo A. Burt, appeals the decision of the Cuyahoga Falls Municipal Court, which found him guilty of domestic violence and sentenced him accordingly. This Court affirms. I. {¶ 2} On November 9, 2001, appellant was charged with one count of domestic violence in violation of R.C. 2919.25 and one count of obstructing official business in violation of R.C. 2921.31. Appellant pled not guilty at his arraignment and the trial court scheduled the pre-trial hearing for November 29, 2001. Appellant failed to appear for his hearing and the trial court issued a bench warrant for appellant, later recalled the warrant, and reset the pre-trial hearing for December 14, 2001. Appellant failed to appear for his hearing a second time and the trial court again issued a bench warrant for appellant and scheduled the case for trial on January 7, 2002. {¶ 3} The case proceeded to trial and appellant was found guilty of domestic violence and not guilty of obstructing official business. The court sentenced him to 30 days in jail, fined him $500.00 and court costs, and suspended his fine. After serving 22 days in the Summit County Jail, appellant's remaining jail time was suspended by the court on the condition appellant pay his court costs. {¶ 4} Appellant timely appealed, setting forth two assignments of error for review. For reasons set forth below, this Court does not reach the merits of appellant's arguments. II. FIRST ASSIGNMENT OF ERROR {¶ 5} "Appellant Was Denied His Constitutional Right To Counsel Pursuant To The Sixth And Fourteenth Amendments To The United States Constitution And Article I, Section 10 Of The Ohio Constitution." SECOND ASSIGNMENT OF ERROR {¶ 6} "The Trial Court Erred By Imposing A Sentence Of Confinement Upon Appellant After Refusing To Appoint An Attorney For Appellant." {¶ 7} In his first assignment of error, appellant argues that he was denied his right to counsel. In his second assignment of error, appellant argues that the trial court erred in sentencing him to jail after it refused to appoint counsel for him. {¶ 8} This Court's review is limited to the record provided by the appellant for his appeal. App.R. 9. See, also, App.R. 12(A)(1)(b). It is well settled that App.R. 9(B) provides the following: "[T]he appellant assumes the duty to ensure that the record, or the portion necessary for review on appeal, is filed with the appellate court. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 19. See, also, App.R. 10(A); Loc.R. 5(A); State v. Ishmail (1978),54 Ohio St.2d 402, 405-406. This duty falls upon the appellant because the appellant has the burden on appeal to establish error in the trial court. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199; App.R. 9(B)." State v. Sugalski, 9th Dist. No. 02CA0054-M,2002-Ohio-6767, at ¶ 11. {¶ 9} In this case, the record on appeal consists of the docket and journal entries from the trial court. This Court finds that the docket and journal entries, without any transcript or App.R. 9(C) statement of the relevant trial court proceedings, are insufficient to satisfy the appellant's burden of establishing error. {¶ 10} Appellant argues the trial court erred by denying him the right to counsel and then sentencing him to jail time. This Court notes that it granted eight extensions to appellant to allow him time to coordinate with the trial court and the prosecutor to obtain transcripts or statements of the evidence necessary to complete the record on appeal. Despite the eight extensions over an eight-month period of time this Court granted appellant, he was unsuccessful at obtaining court approval of his App.R. 9(C) statement of evidence for the record. Nonetheless, it is appellant's burden to provide the record on appeal and to use any legal means available, including a writ of mandamus, in order to complete that record for his appeal. This Court has held: "A presumption of validity accompanies the ruling of the trial court. Without those portions of the record necessary for the resolution of an appellant's assignment of error, `the reviewing court has nothing to pass upon and * * * has no choice but to presume the validity of the lower court's proceedings and affirm.'" Sugalski at ¶ 15, quoting Knappv. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. {¶ 11} Appellant failed to provide the relevant portions of the record, in the form of either a transcript or App.R. 9(C) statement, necessary for review of his assignments of error; therefore, this Court must presume the regularity of the trial court's proceedings and affirm its judgment. See, e.g., Buckingham, Doolittle Burroughs v. Brady (Feb. 1, 1995), 9th Dist. No. 16835; Kaser v. Kaser (Oct. 7, 1992), 9th Dist. No. 2110. III. {¶ 12} Accordingly, appellant's two assignments of error are overruled. The judgment of the Cuyahoga Falls Municipal Court is affirmed. Judgment affirmed. WHITMORE, J. CONCURS.

2016-07-06 06:36:11.120049+00

DECISION {¶ 1} Relator, FM Express, Inc., has filed this original action requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order which granted permanent total disability ("PTD") compensation to respondent, Robert B. Chambers, Jr. ("claimant"), and ordering the commission to find that claimant is not entitled to that compensation. In the alternative, relator requests a writ of mandamus ordering the commission to vacate its order granting claimant PTD compensation and redetermining the issue after providing relator the opportunity to submit its own vocational evidence. {¶ 2} This matter was referred to a magistrate of this court, pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, including findings of fact and conclusions of law, and recommended that this court deny relator's request for a writ of mandamus. (Attached as Appendix A.) No objections have been filed to that decision. {¶ 3} As there have been no objections filed to the magistrate's decision, and it contains no error of law or other defect on its face, based upon an independent review of the evidence, this court adopts the magistrate's decision. Relator's request for a writ of mandamus is denied. Writ denied. Klatt, P.J., and Travis, J., concur. APPENDIX A IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. FM Express, Inc.,: Relator, : v. : No. 05AP-812 The Industrial Commission of Ohio : and Robert B. Chambers, Jr., : Respondents. : MAGISTRATE'S DECISION Rendered on January 31, 2006 Dunlevey, Mahan Furry, and William H. Barney, III, for relator. Jim Petro, Attorney General, and Stephanie L. Van Meter, for respondent Industrial Commission of Ohio. E.S. Gallon and Associates, and Richard M. Malone, for respondent Robert B. Chambers, Jr. IN MANDAMUS {¶ 4} Relator, FM Express, Inc., has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which granted permanent total disability ("PTD") compensation to respondent Robert B. Chambers, Jr. ("claimant"), and ordering the commission to find that claimant is not entitled to that compensation. In the alternative, relator requests a writ of mandamus ordering the commission to vacate its order granting claimant PTD compensation and redetermining the issue after providing relator the opportunity to submit its own vocational evidence. Findings of Fact: {¶ 5} 1. Claimant sustained a work-related injury on December 6, 2002, and his claim was allowed for "contusion of knee right, sprain of wrist left, tear medial meniscus knee-current right, chondromalacia patellae right, degenerative joint disease right knee." {¶ 6} 2. On May 5, 2004, claimant filed an application for PTD compensation supported by the February 11, 2000 report of his treating physician, Shelli A. Powell, M.D. Dr. Powell opined that claimant was permanently and totally disabled as a result of the allowed physical conditions in the claim. {¶ 7} 3. At the request of the commission, claimant was examined by James B. Hoover, M.D., who issued a report dated Jun 21, 2004. Dr. Hoover opined that claimant had reached maximum medical improvement ("MMI"), assessed a 12 percent whole person impairment, and concluded that claimant was capable of performing sedentary physical work activity. {¶ 8} 4. In a vocational prehearing conference letter sent by the commission on July 9, 2004, the parties were notified as follows with regard to the submission of vocational evidence: Pursuant to Ohio Administrative Code Rule 4121-3-34(C)(6)(b)all parties are advised they have until 07/26/2004 which is 14 days from the mailing date of this letter to make writtennotification to the Industrial Commission of their intent tosubmit additional vocational information on the issue of the injured worker's permanent and total disability application. Ifnotification is not received within the above fourteen (14) day period, the submission of additional vocational information willbe deemed to have been waived by the party. Upon timely notification, the additional vocationalinformation shall be submitted to the Industrial Commission by08/26/2004 which is 45 days from the mailing date of this letter. Upon expiration of the forty-five (45) day period, no further information will be accepted without prior approval from the hearing administrator. (Emphasis added.) {¶ 9} 5. By letter dated July 23, 2004, counsel for claimant advised the commission of its intent to submit additional vocational information. {¶ 10} 6. On August 26, 2004, claimant submitted the August 23, 2004 vocational report of Jennifer J. Stoeckel, Ph.D. Based upon her examination and the information provided and reviewed, Dr. Stoeckel opined that claimant was permanently and totally disabled due to his allowed physical conditions, his residual impairment, and vocational characteristics. Dr. Stoeckel noted that claimant has no skills transferable to sedentary work, that his age of 61 would interfere with his ability to compete with younger workers as well as his ability to acquire new skills, that the vocational testing indicates that claimant functions at the below average range for intellectual, academic, and vocational functions, but, according to her testing, claimant is functionally illiterate, that claimant has a limited eighth grade education and has failed to obtain a GED, and that claimant's previous attempt at rehabilitation failed. {¶ 11} 7. Relator did not have claimant examined from a vocational standpoint and submitted no vocational evidence. Although Dr. Stoeckel's report was logged on to the Ohio Bureau of Workers' Compensation website, it is unclear whether counsel for claimant mailed a copy of Dr. Stoeckel's report to relator or its representative prior to the hearing before the commission on claimant's PTD application.1 {¶ 12} 8. Claimant's application was heard before a staff hearing officer ("SHO") on September 2, 2004. The SHO relied upon the medical reports of Drs. Powell and Hoover and concluded that, while claimant could not return to his former position of employment as a truck driver, he was capable of engaging in sedentary work activities within the restrictions and abilities noted by Dr. Hoover. The commission then summarized the vocational assessment completed by Dr. Stoeckel and made the following conclusions relative to the nonmedical disability factors: The Staff Hearing Officer finds that the injured worker is 68 years of age, with prior work experience as a truck driver. The Hearing Officer further finds that the injured worker's age of 68 is a negative factor regarding his ability to adjust to new types of employment which would involve new work environments, new work methods and tools. The Staff Hearing Officer further finds that the injured worker functions at a below average range and level for intellectual, academic, and vocational function. The Hearing Officer finds that the injured worker is functionally illiterate. The Hearing Officer further finds that the injured worker lacks skills which would be transferable to sedentary work. The Hearing Officer further finds that the injured worker's educational and intellectual functions preclude him from developing sufficient skills to perform sedentary work activities. The Hearing Officer finds that the injured worker's age and past work history preclude him from returning to any employment activity.2 {¶ 13} 9. Relator filed an appeal from the SHO's order granting claimant PTD compensation and made the following arguments: (1) while the SHO indicated that claimant was 68 years old, claimant is actually 61 years old; and (2) Dr. Stoeckel noted that claimant suffers from depression, a nonallowed condition, and that her conclusion that claimant is functionally illiterate is inconsistent with the fact that, as a truck driver, claimant was able to read road signs, write orders and complete driver logs. {¶ 14} 10. The commission considered relator's appeal as one for reconsideration and heard relator's request for reconsideration on January 4, 2005, after finding a clear mistake of fact in the SHO's order. The commission specifically indicated that the SHO had stated that claimant was 68 years old when, in fact, he was only 61 years old. In all other respects, the commission affirmed the prior SHO's order in its entirety. {¶ 15} 11. Relator filed another request for reconsideration arguing that claimant was required, by letter of the commission, to submit a letter of intent to submit additional evidence no later than May 21, 2004, in order to have that evidence considered. Inasmuch as claimant's letter indicating that he intended to submit additional vocational evidence was dated July 23, 2004, relator argued that the vocational report of Dr. Stoeckel was untimely submitted and that the commission was precluded from receiving, considering, and relying upon it. {¶ 16} 12. In response thereto, claimant submitted a memorandum contra indicating that the letter to which relator was referring involved the filing of additional "medical" evidence and not vocational evidence. {¶ 17} 13. By order mailed June 2, 2005, relator's request for reconsideration was denied. {¶ 18} 14. On June 21, 2005, relator submitted another request for reconsideration arguing that counsel for claimant had failed to provide relator with a copy of Dr. Stoeckel's report prior to the hearing on claimant's PTD application. Relator argued that it had no knowledge that any vocational evidence was going to be submitted and that it was prejudiced by the fact that claimant submitted the report of Dr. Stoeckel. {¶ 19} 15. By order mailed July 14, 2005, the commission construed relator's motion as a request for reconsideration and denied it. {¶ 20} 16. Thereafter, relator filed the instant mandamus action in this court. Conclusions of Law: {¶ 21} In this mandamus action, relator contends that claimant and claimant's counsel failed to comply with Ohio Adm. Code 4121-3-09 by failing to provide relator and/or relator's representative with a copy of Dr. Stoeckel's report and that the commission abused its discretion by failing to strike the report of Dr. Stoeckel in its entirety, or, at a minimum, failing to continue the matter to a later date so that relator could submit a vocational report. For the reasons that follow, this magistrate rejects relator's arguments. {¶ 22} Ohio Adm. Code 4121-3-09 provides, in relevant part, as follows: (A) Proof and discovery. (1) In every instance the proof shall be of sufficient quantum and probative value to establish the jurisdiction of the commission to consider the claim and determine the rights of the injured worker to an award. Proof may be presented by affidavit, deposition, oral testimony, written statement, document, or other forms of evidence. (a) The parties or their representatives shall provide to each other, as soon as available and prior to hearing, a copy of the evidence the parties intend to submit at a commission proceeding. (b) In the event a party fails to comply with paragraph (A)(1)(a) of this rule, the hearing officer has the discretion to continue the claim to the end of the hearing docket, or to a future date with instructions to the parties or their representatives to comply with the rule. {¶ 23} Relator argues that claimant and his counsel violated Ohio Adm. Code 4121-3-09(A)(1)(a) by failing to provide relator and/or relator's counsel, as soon as available and prior to the hearing, a copy of Dr. Stoeckel's report. Relator contends that, inasmuch as it did not have adequate notice of Dr. Stoeckel's report, the commission was required to continue that matter. {¶ 24} Based upon the record, the magistrate cannot determine whether or not claimant's counsel failed to provide relator with a copy of Dr. Stoeckel's report "as soon as available" pursuant to Ohio Adm. Code 4121-3-09(A)(1)(a). However, Ohio Adm. Code4121-3-09(A)(1)(b) provides the remedy in the event that a party fails to comply with paragraph (A)(1)(a). Pursuant to subsection (b), the SHO had the discretion to continue the matter until the end of the hearing docket or to a future date with instructions to the parties and/or their representatives to comply with the rule. Upon review of the record in the present case, there is no indication that relator, its representative, or counsel, requested a continuance. Instead, it appears from the evidentiary materials before this court, that relator attempted to submit a copy of claimant's employment application at the hearing to contradict Dr. Stoeckel's report; however, the SHO did not permit it. {¶ 25} An abuse of discretion connotes more than just an error of law. It exists where the tribunal's attitude, evidence by its decision was unreasonable, arbitrary, or unconscionable. See, e.g., Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Furthermore, on review, this court may not substitute its judgment for that of the commission. For the reasons that follow, this magistrate finds that the commission did not abuse its discretion. {¶ 26} First, there is no evidence that relator asserted at the hearing before the SHO that a continuance was necessary and that it was prejudiced by its failure to have received a copy of Dr. Stoeckel's report prior to the hearing. Second, relator was as free to submit vocational evidence as was claimant. The fact that relator failed to have a vocational report prepared and timely submitted before the hearing is not a concern of the commission. Both relator and claimant could have presented vocational evidence before the commission. In the present case, the claimant chose to do so while relator did not. Third, although vocational evidence can be presented before the commission, it is not necessary. Furthermore, even where vocational evidence is presented, the commission is completely free to ignore it. The commission has the discretion to accept one vocational report while rejecting another vocational report and the commission may do so without giving any explanation. SeeState ex rel. Jackson v. Indus. Comm. (1997),79 Ohio St.3d 266. In State ex rel. Singleton v. Indus. Comm. (1994),71 Ohio St.3d 117, the Supreme Court of Ohio noted that binding the commission to a rehabilitation report's conclusions would make the rehabilitation division, and not the commission, the ultimate evaluator of disability contrary to the mandates of State exrel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. Lastly, relator has not demonstrated that it was prejudiced. {¶ 27} Relator cites decisions in support of its arguments. The first is State ex rel. Darling-Ramos v. Paramount Stampingand Welding Co., Franklin App. No. 03AP-941, 2004-Ohio-5265. In that case, the employer had allegedly surprised the injured worker by bringing an expert witness to testify against the injured worker at the hearing. The injured worker argued that the employer had violated Ohio Adm. Code 4121-3-09(A)(1)(a) by failing to share the substance of the evidence to which the witness would testify prior to the hearing. This court held that the rule does not apply to live testimony but to evidence submitted on paper. Furthermore, this court found that the injured worker could have submitted evidence contradicting the live testimony at the hearing itself. This court found that the injured worker was not prejudiced. {¶ 28} Relator argues that, in Darling-Ramos, this court stated that Ohio Adm. Code 4121-3-09 applies in the present case. This magistrate does not disagree with that statement. Ohio Adm. Code 4121-3-09(A)(1)(a) does require that a copy of the vocational report was to be provided to relator "as soon as available." However, this court's decision in Darling-Ramos does not warrant the granting of a writ of mandamus in the present case. First, it is not clear that Ohio Adm. Code4121-3-09(A)(1)(a) was violated. Second, relator could have submitted its own vocational report prior to the hearing but failed to do so. And third, relator could have requested a continuance, but did not. Relator has not demonstrated that the commission abused its discretion. {¶ 29} Relator also discusses an administrative decision from 1999 wherein the full commission vacated a prior SHO's order because claimant had violated the above-cited Ohio Administrative Code provision by submitting a transcript of an interview with the claimant at the SHO hearing. In that case, the employer's representative actually requested a continuance because claimant's counsel had only shared this evidence immediately prior to the hearing. The SHO had refused to grant a continuance; however, the commission determined that a continuance, in that case, was necessary. {¶ 30} Because neither relator nor its representative requested a continuance in the present case, the administrative decision discussed in relator's brief would not apply even if it were binding on this court. {¶ 31} Based on the foregoing, it is this magistrate's conclusion that relator has not demonstrated that the commission abused its discretion by not granting a continuance and relator has failed to make any assertions that the ultimate granting of PTD compensation by the commission was not based upon some evidence. As such, relator's request for a writ of mandamus should be denied. 1 Counsel for relator indicates that relator may have received a copy of the report the day before the hearing. 2 Relator asserts that it attempted to produce evidence at the hearing to contradict the vocational report of Dr. Stoeckel; however, the SHO did not permit such.

2016-07-06 06:36:10.612414+00

Per Curiam

This cause came on to be heard upon an appeal from the Court of Common Pleas of Hamilton County. The appellant, Caleb Bronaugh, was indicted on three counts of receiving stolen property pursuant to R.C. 2913.51 and on one count of aggravated burglary pursuant to R.C. 2911.11. His cause was tried to a jury which found him guilty of one count of receiving stolen property and not guilty of aggravated burglary. After the presentation of its case, the appellee, state of Ohio, withdrew two of the receiving stolen property counts from the jury's consideration. The lower court entered judgment and imposed sentence accordingly. The instant appeal timely followed. The appellant assigns two errors, the second of which is dispositive and will be discussed first. The second error assigned by the appellant is that the lower court erroneously overruled "* * * appellant's pre-trial motion requesting new counsel and appellant's counsel's motion to withdraw as counsel." The appellant argues in support of this assignment that, where an accused and his counsel jointly make the request, the refusal of a court to order a continuance for the purpose of the acquisition of new legal counsel constitutes prejudicial error mandating reversal of a subsequent conviction. The appellant's assignment is well taken. At the hearing on these motions the lower court questioned both the appellant and his counsel about the necessity for new counsel. Although the lower court's rejection of the reasons given by the appellant himself for such necessity cannot be faulted, the court erred in concluding that the facts related by appellant's counsel did not establish good cause for his withdrawal. Appellant's counsel stated that the appellant had refused to communicate and cooperate with him during the two weeks prior to the trial and that, resultantly, his preparation of the appellant's case was limited to the extent that he could not properly represent the appellant at trial. To the lower court's question whether he would do his duty as an officer of the court and as a lawyer to represent the appellant to the best of his ability and to see "* * * that he gets the due process he's entitled to," appellant's counsel responded: "Your Honor, under the circumstances I don't think even if I stated I was willing to do that that I would be able to do that." Appellant's counsel continued his argument by stating: "I think in fairness to him, even though I agree with the Court that perhaps he's the one who is not communicating, he's still not communicating, Judge, and I would not say that I am *Page 308 totally prepared for trial, because I have not been able to discuss the case with him as we came down to trial since the 16th when he indicated to the Court he didn't want me." It is clear from these statements and the remainder of the record before us that the appellant's intransigent attitude toward his appointed counsel prevented that counsel from adequately preparing and presenting the appellant's defense. The inability of appellant's counsel to properly represent the appellant under the circumstances of this cause provided a sufficient basis upon which the lower court should have granted the appellant's motion for a continuance to obtain new counsel. As such, we are compelled to hold that the lower court's refusal to grant the appellant a continuance to obtain new counsel constituted an abuse of its discretion and requires that the instant cause be remanded for a new trial. This disposition of the appellant's second assignment of error necessarily moots the appellant's first assignment of error, that the lower court erred in overruling the appellant's motion for judgment of acquittal, because it obviates the need to examine the sufficiency of the proof adduced by the appellee at trial. For the above described reasons the judgment of the court of common pleas is reversed and remanded for further proceedings according to law and not inconsistent with this decision. Judgment reversed and cause remanded. SHANNON, P.J., DOAN and KLUSMEIER, JJ., concur.

2016-07-06 06:36:11.016497+00

Long

This case comes to this court on appeal on questions of law from the Court of Common Pleas of Hamilton County, Ohio. The cause of action grew out of a judgment obtained by plaintiff against defendant in the state of Florida. The plaintiff had painted posters for the defendant, who had been doing business under the name of Davenport's Merchants Free Circus. When the circus ceased to operate under the latter name, defendant "took" certain property as his share of the circus assets. Some of these assets became the subject of an attachment issued upon the filing of plaintiff's suit herein, based, as stated, on the judgment obtained against defendant in Florida. Sometime in the summer of 1959, plaintiff learned that the circus was being operated under the name of Cristiani Bros. Circus, and that defendant was still associated with this circus, and that some of the assets subsequently attached were still being used by, and were in the possession of, defendant. After the attachment by the Sheriff of Hamilton County, the defendant filed a motion to dissolve this attachment, and included therein a motion to require security for costs and an attachment bond. The grounds for the discharge of the attachment were that the affidavit, upon which the attachment was based, was untrue, *Page 109 in that "defendant did not have title to any of the property listed in the affidavit"; that "said property belonged to Peter Cristiani." In other words, the sole claim for relief by way of discharge, was that defendant did not have title to the attached property. The law of Ohio is well settled on this point. As far back asJ. Langdon Bro. v. Conklin Martin, 10 Ohio St. 439, our Supreme Court has held that it was not competent for a defendant, on a motion to discharge an attachment, to show the "title" to the property is not in him; further, the court held that to sustain such a motion on such ground is error. 7 Corpus Juris Secundum, 612, Attachment, Section 426, sustains this view, pointing out that the only time testimony of title is admissible is "where the attachment was resorted to in order to obtain jurisdiction, a nonresident defendant has been allowed to show his lack of interest in the property attached for the purpose of ousting the court of jurisdiction." We do not have that situation in the case at bar. The defendant here will not be injured by seizure of property, if the property does not belong to him. The owner has the usual remedies providing for the trial of the right to the property for goods claimed by third parties. Motion to discharge the attachment is not one of them. In the case ofRice v. Wheeler Dollar Savings Trust Co., Exr., 155 Ohio St. 391, 99 N.E.2d 301, the fourth paragraph of the syllabus contains this language: "A court will not ordinarily entertain favorably a motion to discharge an attachment on the claim that the attached property does not belong to the moving party, particularly where the authenticity of such claim is questionable." What does the language, "particularly where the authenticity" of the claim to ownership is questionable, mean? That is exactly what we find in this case. Even if the court had the right to consider who had title to the property, if ever authenticity of ownership were questionable, it is in the case at bar. Let us look at the facts set forth in the bill of exceptions. Defendant "took" the steam calliope and snake show as his share of the property upon dissolution of Davenport's Merchants Free Circus; defendant thereafter transferred by bill of sale to Cristiani, his son-in-law, the attached property, in order to avoid execution which might result from an accident in which *Page 110 he was involved in Florida; and there was admittedly no consideration for this transfer except that defendant thought Christiani might pay some of his debts in the future. This transfer was clearly a fraud upon creditors. The evidence discloses further that the transfer of these assets to his son-in-law was in violation of Florida's bulk sales law, of which statutes the courts of this state must take judicial notice. Cristiani at no time notified plaintiff or any other creditor of the terms and conditions of the alleged sale to him and, therefore, as to plaintiff, the sale could be set aside. On the merits, as to ownership, if the trial court had the right to so determine, the great weight of the evidence is to the effect that defendant still owned the attached property. Our attention is called to the fact that in the motion to discharge the attachment, defendant also asked the court for a "trial for the right of property in accordance with R. C.2329.85." This section applies to property taken on execution and not attached property; this section was never intended to modify the law that, on a motion to discharge an attachment, the right of ownership could be tried. Coming now to the action of the trial court in requiring a bond for security for costs, we hold that the court acted according to the statute. The law provides that nonresidents must post security for costs upon motion properly made. On the other hand, the defendant being a nonresident, the statute indicates that the bond for attachment was not necessary. For the reasons above stated, the judgment of the Court of Common Pleas of Hamilton County is hereby modified as follows: The attachment is reinstated; the action of the trial court in granting the motion for security of costs is sustained; and the bond for attachment is not required. As modified, the judgment is affirmed. Judgment modified and, as modified, affirmed. MATTHEWS, P. J., and O'CONNELL, J., concur. *Page 111