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2016-07-06 06:41:55.609627+00

Doyle

This is an appeal from a judgment rendered in the Municipal Court of Cuyahoga Falls in the amount of *Page 321 fifteen hundred dollars, in favor of the plaintiffs, the appellees in this court, and against the defendant, the appellant in this court. The second amended petition alleged that: 1. On March 9, 1953, James W. Meeker, Jr., and Mary Ann Meeker, entered into a contract in writing with Mary M. Shafranek for the purchase of her real property, "consisting of a house and garage located on a lot of land owned by defendant [Mary M. Shafranek] on Ravenna Road in the city of Hudson, Ohio, for a purchase price of ten thousand dollars * * *, and that plaintiffs [James W. Meeker, Jr., and Mary Ann Meeker] have fully performed all of the terms and conditions of such contract on their part required to be performed." 2. "The plaintiffs further say that they relied upon, and were induced to enter in such contract by reason of, the misrepresentations of defendant that she was the owner of such house and garage and that same were located on land owned by defendant, whereas in truth and fact said garage encroached upon land owned by an adjoining landowner." The petition concluded with a prayer for damages. A demurrer was filed to the pleading, alleging that it appeared on the face of the petition "that the action was not brought within the time limited for the commencement of such actions." It is argued that a four-year statute of limitations applies to this pleading, because there was pleaded an action in tort; i.e., for misrepresentation which induced plaintiffs to enter into a contract for the purchase of real property. The court overruled the demurrer on the ground that "the action is founded upon breach of contract." The defendant excepted to the ruling. On a later date the case came on for trial to the court without a jury, and at the conclusion thereof the court entered its judgment, in part as follows: "(a) That the defendant, honestly but mistakenly, did represent to the plaintiffs that the garage in question did not encroach upon the adjoining land of another. "(b) That the defendant intended by general warranty deed to convey all of the garage and all of which was within the *Page 322 meaning of the phrase `the Shafranek property' as used in the contract. "(c) That the defendant received valuable consideration, whereas the plaintiffs got less than they bargained for. "(d) That the misrepresentations were as to material and substantial facts: "(E) That the plaintiffs were induced to enter into the contract by reason of the representations; "(F) That the plaintiffs had a right to and did rely on the representations; "(G) That the representations were in fact false." The judgment entry concludes by assessing damages in the sum of fifteen hundred dollars, in favor of the plaintiffs and against the defendant. It is the claim of the appellant that "the court erred in overruling defendant's demurrer to plaintiff's second amended petition." She states that "clearly, the gist of plaintiff's action is `ex delicto' rather than `ex contractu.' The cause of action is based upon a misrepresentation of fact inducing a party to enter into a contract, rather than a breach of contract already entered into. Whether we label such tortious conduct by defendant as fraud, deceit, or misrepresentation, is immaterial. It is still governed by the four-year limitation under either Section 2305.09(C) or 2305.09(D) of the Revised Code. The fifteen-year limitation governing contracts in writing has no application in this case." Section 2305.09, Revised Code, is titled, "Four years; certain torts." It provides, in part: "An action for any of the following causes shall be brought within four years after the cause thereof accrued: "* * * "(C) For relief on the ground of fraud; "(D) For an injury to the rights of the plaintiff not arising on contract nor enumerated in Sections 2305.10 to 2305.12, inclusive, 2305.14, and 1307.08 of the Revised Code." (The latter part of this subdivision has no application to this case.) Section 2305.06, Revised Code, is titled "Contract in writing." It is as follows: *Page 323 "An action upon a specialty or an agreement, contract, or promise in writing shall be brought within fifteen years after the cause thereof accrued." It appears on the petition that the action was brought within a period of fifteen years, but later than a four-year period. Under our system of pleading, the formal distinctions between actions are abolished and the petition states the facts which constitute the cause of action. In determining, therefore, the character of the action, we must look to the substance of the entire statement. The entire first paragraph of the second amended petition was used to declare the creation of a "contract in writing" for the purchase of a house and lot, located on land owned by the seller, for the price of ten thousand dollars, and that all of the terms of the contract were performed by the purchasers. The second paragraph of the said petition, while alleging that the buyers were induced to enter into the contract because the seller represented that she owned the land and the house located thereon, also alleged that the garage "encroached upon land owned by an adjoining landowner." The third and last paragraph of the said petition stated that, "by reason of said encroachment," the purchasers had been damaged in the amount of nineteen hundred and seventy dollars. The fourth and last paragraph in simple terms prayed judgment for the sum specified as damages in the third paragraph. In many cases the dividing lines between actions in contract and actions in tort are extremely uncertain. Courts, however, must look to the nature of the grievance rather than the form of the pleading. If a petition states a cause of action in contract, the nature of the action is not changed by the mere fact that there is also contained therein a charge of tortious conduct. As we view the petition in question, it was entirely lawful for these parties to enter into a contract to sell and purchase specified land and buildings thereon. This they did, and the purchase price was paid. When the seller was unable to deliver all of the land which she had sold, she breached the contract, *Page 324 and the purchasers were entitled to damages for such breach. The simple allegation of an untrue representation by the seller, in respect to the amount of land involved in the sale, which was said to have induced the sale, cannot make this action one in tort, nor can the various findings of the court in its journal entry transform the action from contract to tort. There seems to be a general rule extant, although difficult in many instances of application, pertaining to a determination of whether an action is ex contractu or ex delicto. It is sometimes stated as follows: "If the cause of action arises from a breach of contract, the action is ex contractu; but if the cause of action arises from a breach of duty growing out of the contract, it is in form exdelicto." See: Text and supporting cases in: 1 Ohio Jurisprudence (2d), Actions, Section 16; 1 American Jurisprudence, Actions, Section 50 et seq.; 1 Corpus Juris Secundum, Actions, Section 44 etseq. And see: Ketcham v. Miller, 104 Ohio St. 372,136 N.E. 145. In the case before us, the seller of the property conveyed all of the land and buildings that she owned. There was no claim that she breached a duty in not conveying the part of the land which was owned by others. She did breach her contract, however, in not being able to convey all that she sold. We find the action to be one in contract; and, in view of the record, the judgment must be affirmed. Judgment affirmed. STEVENS and HUNSICKER, JJ., concur. *Page 325

2016-07-06 06:41:55.93775+00

Levine

This is an original action in mandamus filed in this court, wherein it is sought by the relator, George White, to compel the defendants to enter into a contract with the relator upon specified terms for the leasing of the music hall, in the city of Cleveland, which is a part of the public auditorium, to be used by the relator for the week beginning May 1, 1932, during which he proposes to present the *Page 73 performance which he is conducting as "George White's Scandals." Various arguments were presented to the court on pertinent points of law. In support of a demurrer to the relator's petition it was pointed out in brief of counsel that the duties of the commissioner of the public auditorium and stadium are all set forth in an ordinance enacted by the council of the city of Cleveland; that unless the petition pleads the ordinance this court cannot take judicial notice of same, as it must be pleaded and proven as other evidence. In view of the concession of counsel for relator that the council is empowered to enact an ordinance governing the use of the public auditorium, or any part of it, and that it is within its power to exclude certain activities from any part of the public auditorium, it would seem that the failure to plead the ordinance would constitute a substantial defect in the petition. This court cannot take judicial notice of the contents of the ordinance, nor can it consider the ordinance, in view of the failure to plead the same in the petition. As far as this court knows, the acts of the commissioner and of the director of public parks were in full conformity with the mandate of the city council. We will assume, for the sake of argument, that the ordinance was pleaded and presented in evidence. A study of the same reveals that "the Public Auditorium is to be administered or controlled by the Commissioner * * * subject to the provisions of the Charter and ordinances * * * and subject to the supervision and direction of the Director of Parks and Public Property * * * he shall have power from time to time to enter into contracts * * * under such rules as may be established by the Board of Control * * *." As we construe this language it is to the effect that the commissioner is empowered to enter into contracts *Page 74 subject to certain limitations. In other words, when he does enter into a contract the same must be subject to certain limitations. Nowhere in the ordinance do we find any mandatory provision compelling the commissioner to enter into contracts. His power as well as his duties are derived from the ordinance, and unless the ordinance makes it mandatory upon him to enter into contracts under certain conditions he is under no duty to do so. We are not concerned with the wisdom or lack of wisdom on the part of the commissioner in refusing to accept the offer of the relator, as this is not a judicial question, but, instead, we deem it to be a matter of political policy for which the responsible heads are answerable not to the courts but to the people as a whole. The writ of mandamus was designed to compel the performance of a duty enjoined by law, and unless the law creates such a duty the courts cannot be called upon, first, to create the duty, and, second, to compel its performance. The various citations found in the brief of counsel for the relator refer to matters wherein the law imposed a mandatory duty upon the officer against whom the writ was directed. No such situation exists in this case. Holding as we do, the writ will be denied, and the petition of relator dismissed. Writ denied and petition dismissed. WEYGANDT, J., concurs. VICKERY, J., not participating. *Page 75

2016-07-06 06:41:55.752455+00

OPINION This timely appeal arises from a December 7, 1998, Judgment Entry by the Noble County Court of Common Pleas, Noble County, Ohio, denying Appellant's motion for summary judgment and granting Appellee's motion for summary judgment. On appeal, Appellant argues that the trial court committed reversible error when it determined that Appellant was not uninsured/underinsured as defined by his automobile insurance policy with Appellee. For all of the following reasons, this Court affirms the judgment of the trial court. The following facts are not disputed by the parties and are gleaned entirely from the Agreed Statement of Facts filed by the parties with the trial court on September 11, 1998. On July 28, 1996, Julie Brown was a passenger in a vehicle owned by James Greathouse and operated by Brandi Gifford. A vehicle owned by Richard Saliba and operated by his intoxicated minor son, Kevin Saliba, collided with the Greathouse automobile. Julie Brown and Brandi Gifford both died from the injuries they sustained in the collision. The negligence of Kevin Saliba ("tortfeasor") was the proximate cause of the collision. Jon N. Brown ("Appellant") is the duly appointed administrator of the estate of his daughter, Julie Brown, deceased. At the time of the accident, the tortfeasor was covered under an automobile insurance policy issued by Lightning Rod Insurance Company with policy limits of $100,000.00 per person and $300,000.00 per occurrence. Brandi Gifford had a primary liability insurance policy with State Farm Insurance Company which provided insurance coverage with liability limits of $50,000.00 per person and $100,000.00 per occurrence. One of the defendants below, Justin Moore, who allegedly supplied the alcohol to the tortfeasor, had a liability insurance policy in the amount of $100,000.00, written by Grange Mutual Insurance Company. Appellant settled various claims against each of the allegedly liable parties in the following amounts: 1. Claims against the tortfeasor settled for $100,000.00. 2. Claims against James Greathouse settled for $50,000.00. 3. Claims against Brandi Gifford settled for $50,000.00. 4. Claims against Appellant's homeowner's policy settled for $50,000.00. 5. Claims against Justin Moore settled for $4,000.00. After settling the foregoing claims for an aggregate amount of $254,000.00, Appellant filed a claim for UM/UIM coverage under his own insurance policy issued by Nationwide Insurance ("Appellee"), with applicable coverage limits of $100,000.00 per person and $300,000.00 per occurrence. Appellee denied the claim and on January 21, 1997, Appellant filed suit. On March 23, 1998, Appellant filed a motion for summary judgment seeking a declaration that UM/UIM coverage was available under the policy issued by Appellee. On April 15, 1998, Appellee responded by filing a memorandum in opposition as well as filing its own motion for summary judgment. The trial court denied Appellant's motion and on December 7, 1998, granted Appellee's motion. In so doing, the trial court concluded that Appellant was not uninsured or underinsured for purposes of maintaining a UM/UIM claim against Appellee. It is this judgment which forms the basis of the present appeal. In his sole assignment of error, Appellant argues that: "THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND HOLDING THAT DEFENDANT WAS ENTITLED TO A SET-OFF FROM ITS UNDERINSURED MOTORIST POLICY LIMIT OF THE TOTAL AMOUNTS PAID BY THIRD PARTIES REGARDLESS OF THE AMOUNTS ACTUALLY `AVAILABLE FOR PAYMENT' TO THE INDIVIDUAL INSUREDS." As a preliminary matter, this Court notes that the underlying claim sought declaratory judgment to determine the rights, status and other pertinent legal relationships between Appellant, as the insured, and Appellee, as the insurer. When an action for a declaratory judgment is disposed of via summary judgment, the proper standard of review is de novo under the standards set forth in Civ.R. 56 (C). Hoicowitz v. Positive Edn.Program (1994), 96 Ohio App.3d 363, 366. Summary judgment under Civil Rule 56 is only proper when the movant demonstrates that: "(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 could 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." Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344,346. Appellant argues that in order to resolve the issue presented in this appeal the Court must first determine the proper method of calculating the set-off provision of Ohio's Uninsured/Underinsured Motorist Statute codified in R.C. § 3937.18, as amended by S.B. 20, when the claim involves a decedent survived by multiple next of kin each asserting separate claims as insureds under a UM/UIM policy. Appellant argues that, "the total amount paid by third parties is irrelevant in determining the amount of the set-off in a wrongful death case." (Appellant's Brief, p. 6). Citing this Court's decision in King v. Western Reserve Group (December 1, 1997), Monroe App. No. 789, unreported, Appellant suggests that each next of kin has a separate claim and that when multiple claimants exhaust the tortfeasor's liability limits, the UM/UIM set-off is the amount actually paid to each claimant. Appellee, however, contends that this Court need not address the set off provision of R.C. § 3937.18 as Appellants do not meet the threshold requirement; that is, they are not uninsured/underinsureds as defined by that statute. Appellee argues, and the trial court agreed, that the total recovery by the estate of the deceased must be compared to the applicable liability limit of the UM/UIM policy in order to determine the availability of UM/UIM coverage. Both parties agree that R.C. § 3937.18, as amended by S.B. 20. is the controlling law and further agree that Appellee's liability, if any, is limited to the $100,000.00, per person cap. The only dispute concerns the manner in which the amended version of R.C. § 3937.18 is to be applied. Our reading of the applicable law supports the trial court decision here. It is true that the Ohio Supreme Court previously has held that when there are multiple claimants in a wrongful death case, each person who is covered under the applicable UM/UIM policy has a separate claim subject to a separate per person policy limit. Savoie v. Grange MutualInsurance Co. (1993), 67 Ohio St.3d 500, at syllabus. In response to this judicial pronouncement, however, the General Assembly passed Senate Bill 20 ("S.B. 20"), with the explicit purpose of: "supersed[ing] the effect of the holding of the Ohio Supreme Court in the October 1, 1993 decision in Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, relative to the application of underinsured motorist coverage in those situations involving accidents where the tortfeasor's bodily injury liability limits are greater than or equal to the limits of the underinsured motorist coverage." Section 7, Am.Sub. S.B. No. 20, 145 Ohio Laws, Part I, 204, 208. The amendments to R.C. § 3937.18 also included the following pertinent provision which articulates the purpose behind UIM/UM coverage: "(2) Underinsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for an insured against loss for bodily injury, sickness, or disease, including death, suffered by any person insured under the policy, where the limits of coverage available for payment to the insured under all bodily injury liability bonds and insurance policies covering persons liable to the insured are less than the limits for the insured's uninsured motorists coverage. Underinsured motorist coverage is not and shall not be excess insurance to other applicable liability coverages, and shall be provided only to afford the insured an amount of protection not greater than that which would be available under the insured's uninsured motorist coverage if the person or persons liable were uninsured at the time of the accident. The policy limits of the underinsured motorist coverage shall be reduced by those amounts available for payment under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured. R.C. § 3937.18 (A) (2). (Emphasis added) The plain language of the above cited statute clearly indicates that UM/UIM coverage is available only when the total available liability insurance limits are less than the applicable UM/UIM limits. The statutorily mandated parameters of UM/UIM availability are also reflected in the language of the insurance policy issued by Appellee which defines an uninsured motor vehicle as: "One which is underinsured. This is a motor vehicle for which bodily injury liability coverage or bonds are in effect; however, their total amount is less than the limits of this coverage." Nationwide's Century II Auto Policy, Endorsement 2352. (Emphasis added). While Appellant here characterizes the estate as "underinsured," under the policy, an uninsured motorist is defined as an underinsured motorist. The policy language, consistent with R.C. § 3937.18, clearly contemplates comparing the total available liability coverage limitations with the policy limits of the UIM/UM policy. It is only when the total amount of liability coverage available for payment is less than the relevant UIM/UM policy limits that a valid UIM/UM claim exists. Contrary to Appellant's position, this is a threshold matter which must be satisfied before conducting the type of set-off analysis Appellant urges this Court to undertake. With the proper analytical framework for examining the validity of a UIM/UM claim set forth, this Court notes that the total of $600,000.00 available in liability coverage for payment as well as the actual recovery by Appellant of $254,000.00, are both well in excess of the $100,000.00 UIM/UM policy limits at issue here. Therefore, pursuant to the express terms of R.C. § 3937.18 (A) (2) as well as the plain language contained in the policy, Appellant is not uninsured or underinsured and is not entitled to UIM/UM benefits, even under the set-off formula advocated by Appellant. Appellant maintains, however, that as this case involves a wrongful death action, each statutory beneficiary presumed to suffer damages as described in R.C. Chapter 2125. et seq., have separate claims. Appellant urges the position that insurers must apply set offs to the individual claims rather than apply the collective set off to the entire claim in the aggregate. Consistent with this argument, Appellant suggests that each beneficiary who received less than $100,000.00 is underinsured and is therefore entitled to benefits under the UIM/UM policy. In support of this position, Appellant cites to our decision inKing, supra, where this Court viewed each wrongful death beneficiary as having a separate claim entitled to a separate "per person" limit. Our review and comprehensive analysis of the cited portion of King, supra, in light of the recent plethora of interpretive case law, convinces this Court that King is easily distinguished from the case at bar based on the policy language relevant in the two cases. R.C. § 3937.18 (H) provides in pertinent part: "Any automobile liability . . . policy of insurance . . . may, notwithstanding Chapter 2125 of the Ohio Revised Code, include terms and conditions to the effect that all claims resulting from or arising out of any one person's bodily injury, including death, shall collectively be subject to the limit of the policy applicable to bodily injury, including death, sustained by one person, and, for the purpose of such policy limit shall constitute a single claim. Any such policy limit shall be enforceable regardless of the number of insureds, claims made, vehicles or premiums shown in the declarations or policy, or vehicles involved in the accident." Id. (Emphasis added). It is clear that pursuant to the plain language of the cited statutory section, an insurer may include language in the insurance policy that effectively limits multiple wrongful death claimants to a single claim. Plott v. Colonial Ins. Co. (1998),126 Ohio App.3d 417. Having concluded that an insurer is statutorily permitted to include this limitation in the policy, this Court must determine whether the insurer did in fact include this limiting language. We answer that question in the affirmative. The UM/UIM policy at issue contains the following provision: "Bodily injury limits shown for any one person is for all legal damages, including all derivative claims, claimed by anyone arising out of and due to bodily injury to one person as a result of one occurrence. The per-person limit is the total amount available when one person sustains bodily injury, including death, as a result of one occurrence. No separate limits are available to anyone for derivative claims, statutory claims or any other claims made by anyone arising out of bodily injury, including death, to one person as a result of one occurrence." (Nationwide's Century II Auto Policy, Endorsement 2352). (Emphasis added). This provision clearly limits the multiple wrongful death claimants to the insurance policy's single "per person" claim when one person suffers death as the result of one occurrence, which is contemplated and authorized by R.C. § 3937.18 (H). As a result, the decedent's next of kin in the case at bar are collectively limited to the single "per person limit" of $100,000.00 as reflected in the applicable UIM/UM policy. It must be observed that since deciding King, supra, this Court has rendered decisions which implicitly recognized the permissibility of consolidating multiple wrongful death claimants into a single claim. See, e.g., Powers v. NationwideMutual Ins. Co. (December 6, 1999), Mahoning App. No. 97 CA 219, unreported. This interpretation of R.C. § 3937.18 (A) parallels those of our sister districts who have had occasion to pass upon this very issue. See, e.g., Welsh v. Sherwood (March 9, 1998), Stark App. Nos. 1997CA00317, 1997CA00323, unreported; Smock v.Hall (January 15, 1999), Geauga App. No. 97-G-2090, unreported;Karr v. Borchardt (December 24, 1998), Seneca App. No. 13-98-36. We must note, however, that while it is clear that R.C. § 3937.18 (H) allows a policy of insurance to effectively limit multiple wrongful death claimants to a single claim, there is nothing in the King case to indicate that the policy at issue inKing did so limit those claimants accordingly. On. this basis,King can be distinguished from and is inapplicable to the case at bar. Finally, this Court notes that the Ohio Supreme Court has handed down two recent decisions, Wolfe v. Wolfe (2000), 88 Ohio St.3d 246 and Moore v. State Auto Mut. Ins. Co. (2000), 88 Ohio St.3d 27, involving S.B. 20. Based on the holdings of Wolfe andMoore, the Supreme Court has remanded a few of our cases for a decision as to the impact of their decisions on these UIM/UM cases. See, for example, Spence v. Natl. Mut. Ins. Co. (2000),88 Ohio St.3d 403; Lumbatis v. Grange Mut. Cas. Co. (2000),88 Ohio St.3d 403. Neither Wolfe nor Moore, however, address the issues presently before us and do not impact on the disposition of the instant appeal. In conclusion, this Court agrees with the trial court's ruling that Appellant is not uninsured or underinsured as defined by R.C. § 3937.18 (A) (2). Appellant's inability to satisfy this threshold requirement renders the question as to the proper means of calculating the applicable statutory setoff, moot. As such, Appellant's assignment of error is overruled and the judgment of the Noble County Court of Common Pleas is hereby affirmed. Vukovich, J., concurs, Donofrio, J., concurs. ______________________ CHERYL L. WAITE, JUDGE

2016-07-06 06:41:56.015577+00

DECISION AND JOURNAL ENTRY {¶ 1} Defendant-Appellant Rebecca J. Searcy has appealed from her sentence imposed by the Summit County Court of Common Pleas. This Court affirms in part and reverses in part. I {¶ 2} On January 11, 2005, Defendant-Appellant Rebecca J. Searcy entered guilty pleas to the following charges: one count of burglary in violation of R.C. 2911.12(A)(1), a felony of the third degree; two counts of burglary in violation of R.C. 2911.12(A)(3), felonies of the third degree; two counts of theft in violation of R.C. 2913.02(A)(1), felonies of the fifth degree; one count of forgery in violation of R.C.2913.31(A)(3), a misdemeanor of the first degree; one count of theft from the elderly in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree; and one count of theft from elderly in violation of R.C.2913.02(A)(1), a felony of the fifth degree. Appellant also signed a written plea of guilty to the above charges. {¶ 3} On February 2, 2005, a sentencing hearing was held and the trial court pronounced the following sentence: "On the two felonies of the third degree, I am sentencing you to three years in prison on each. I am suspending two of those years on each and you will have one year consecutive on each of your third degree felonies. You have six months on each of the fifth degree felonies to run consecutive. I have you have six month on the first degree misdemeanors to run concurrent." The trial court subsequently informed Appellant that she would be in prison for three years. The trial court stated that it considered Appellant a danger to the community; that incarceration would not impose an unreasonable burden on the state or local resources; and that prison was necessary to protect the public and punish Appellant. {¶ 4} In a journal entry dated February 14, 2005, the trial court sentenced Appellant to three years incarceration for each of her three burglary convictions and six months incarceration on each of her remaining five convictions. The trial court found that consecutive sentences on the burglary convictions were necessary to protect the public and punish Appellant. Moreover, the trial court found that the sentence was not disproportionate to the crimes and the harm cause by Appellant was so great or unusual that a single term of incarceration did not adequately reflect the seriousness of her crimes. The trial court ordered that two of the three years imposed on each burglary count were suspended and that the sentences from the non-burglary convictions were to be served concurrently to each other and concurrent to the burglary sentences. Accordingly, Appellant's total sentence was three years incarceration. {¶ 5} Appellant has timely appealed her sentence, asserting one assignment of error. II Assignment of Error Number One "THE TRIAL COURT'S IMPOSITION OF CONSECUTIVE SENTENCES IS NOT SUPPORTED BY THE RECORD OR REQUIRED BY LAW." {¶ 6} In her sole assignment of error, Appellant has argued that the trial court erred in sentencing her. Specifically, Appellant has argued that the trial court failed to make the proper findings required to impose consecutive sentences and that the sentencing journal entry was inconsistent with the sentencing hearing. {¶ 7} An appellate court will not reverse a sentencing decision unless the court finds, by clear and convincing evidence, that the sentence is unsupported by the record or is contrary to law. State v. Comer,99 Ohio St.3d 463, 2003-Ohio-4165, ¶ 10, citing R.C. 2953.08. See Statev. Johnson, 9th Dist. No. 21665, 2004-Ohio-1231, ¶ 10 (sentencing decisions are reviewed under the clear and convincing standard of review). Consecutive Findings {¶ 8} Appellant has argued that the trial court failed to make the proper findings pursuant to R.C. 2929.19. This Court has previously held that if a trial court fails to state, on the record, its findings and reasons in support of consecutive sentences, "the defendant must raise a timely objection to the trial court in order to preserve that error for appeal[.] [O]therwise [,] that objection is forfeited." State v.DiGiovanni, 9th Dist. No. 22242, 2005-Ohio-1131, at ¶ 5, citing Statev. Riley, 9th Dist. No. 21852, 2004-Ohio-4880, at ¶ 32. {¶ 9} A review of the transcript from Appellant's sentencing hearing establishes that Appellant was present with counsel during the hearing. Accordingly, both Appellant and her attorney were given the opportunity to bring any alleged sentencing errors to the trial court's attention and object to the trial court's failure to remedy any alleged errors. Because Appellant remained silent and did not object to the alleged errors, of which she now complains, she has forfeited any claim to said errors. As a result, Appellant's sole assignment of error lacks merit as it relates to the imposition of consecutive sentences. Sentencing Hearing {¶ 10} Appellant has argued that the sentencing trial transcript and the sentencing journal entry are inconsistent. We disagree. While there are differences with the elements of Appellant's sentence at the hearing and in the journal entry, the sentence imposed in each is the same, three years incarceration. The trial court did mistakenly state that Appellant only had two convictions for felonies of the third degree and it apparently misspoke when it stated that the six month sentences on her fifth degree felony convictions were to be served consecutively, rather than concurrently, from the third degree felony convictions. But, it is clear from the sentencing transcript's stated incarceration time of three years that the trial court knew Appellant had three convictions for felonies of the third degree and that the sentences on Appellant's other convictions were to be served concurrently to the sentences for those three third degree felony convictions. To interpret otherwise would subject Appellant to four years incarceration rather than the three years stated at the sentencing hearing and in the sentencing journal entry. Although there are some misstatements in the trial court's sentencing hearing, it is clear Appellant was sentenced to three years incarceration for her convictions, which is consistent with her sentence in the journal entry. {¶ 11} While we decline to find that the sentencing hearing and sentencing journal entry are inconsistent, we do find that the matter must be remanded for re-sentencing on one of Appellant's third degree felony burglary convictions because the trial court erred in sentencing Appellant. {¶ 12} Pursuant to Crim.R. 43(A), a "defendant shall be present at the arraignment and every stage of the trial, including * * * the imposition of sentence [.]" Crim.R. 43(A). "A trial court that imposes a sentence upon a defendant without the defendant being present, and such absence is not voluntary, commits reversible error." State v. McMillen, 9th Dist. No. 21425, 2003-Ohio-5786, at ¶ 36, citing State v. Welch (1978),53 Ohio St.2d 47, 48. {¶ 13} As previously discussed, the trial court stated at the sentencing hearing that Appellant had two third degree felony burglary convictions and imposed sentence on those convictions. In the sentencing journal entry journalized on February 14, 2005 the trial court correctly stated that Appellant had three third degree felony burglary convictions and imposed sentence on those convictions. It is clear from the record that Appellant was not present when she was sentenced on one of her third degree felony burglary convictions. Due to the trial court's failure to comply with Crim.R. 43(A), we find that the trial court erred in sentencing Appellant and therefore, her sentence on one of her third degree felony convictions is invalid and on remand the trial court shall sentence Appellant in accordance with Crim.R. 43(A). III {¶ 14} Appellant's sole assignment of error is overruled concerning the alleged errors in the imposition of consecutive sentences and sustained concerning the errors in the sentencing Appellant on her third burglary conviction. The judgment of the trial court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. Judgment affirmed in part, reversed in part, 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 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 both parties equally. Exceptions. Slaby, P.J. Concurs.

2016-07-06 06:41:56.048962+00

DECISION AND JUDGMENT ENTRY {¶ 1} Defendant-Appellant Mary Buhl appeals the judgment of the Jackson County Municipal Court, which convicted her of failing to stop at a red light, a violation of Wellston Municipal Code (W.M.C.) 70.21(A)(3). Appellant asserts that the trial court erred by denying her Crim. R. 29(A) motion for acquittal. Appellant also argues that the trial court erred by amending the charge against her at the conclusion of the trial by changing the charge under W.M.C. 72.22(A), failure to stop at a stop sign, to a charge under W.M.C. 70.21(A)(3), failure to stop at a red light. {¶ 2} For the following reasons, we agree with appellant and reverse the judgment of the trial court. The Motor Vehicle Accident {¶ 3} On December 13, 2001, in Wellston, Ohio, Defendant-Appellant Mary Buhl was involved in an automobile accident with Ernasteen Davis. Evidently, appellant was travelling southbound along Pennsylvania Avenue at the same time that Davis was travelling westbound along 14th Street. Pennsylvania Avenue and 14th Street intersect, and traffic patterns through the intersection are controlled by a traffic light. At the time of the accident, Davis' vehicle was nearly through the intersection when appellant's vehicle struck her broadside. {¶ 4} Appellant was cited, and the ticket issued to her indicated that she "[f]ailed to yield to a vehicle already in the intersection." The ticket cited to W.M.C. 72.22(A), which requires drivers to stop at stop signs and yield to other vehicles already in the intersection before proceeding. The Trial Court Proceedings {¶ 5} On January 30, 2002, a bench trial was held and the testimony of several witnesses was presented. {¶ 6} At the trial, Davis testified that she had a green light when she entered the intersection and that her light was still green immediately following the collision. Davis further testified that after the collision, appellant apologized to her saying that the light had turned red and she was unable to stop in time to avoid the collision. {¶ 7} The police officer that investigated the accident also testified at the trial. The officer testified that the damage to Davis' vehicle was reserved to the passenger-side midsection (i.e., the passenger-side doors), but centered more towards the rear of the vehicle. He also testified that the front of appellant's vehicle suffered damage. In addition, the officer testified that he did not recall anyone at the accident scene indicate which vehicle had the green light. {¶ 8} Davis and the investigating officer also testified that there was no stop sign facing traffic on Pennsylvania Avenue. {¶ 9} At the close of the prosecutor's case-in-chief, appellant moved for an acquittal under Crim. R. 29(A). Appellant asserted that she could not be convicted of the offense charged, failure to stop at a stop sign, because the testimony established that there was no stop sign at the intersection facing traffic on Pennsylvania Avenue. The trial court overruled appellant's motion for an acquittal. {¶ 10} Subsequently, appellant took the stand to testify in her defense. She testified that she had a green light when she entered the intersection and that she never saw Davis' vehicle until immediately before the collision. She further testified that she never made the statement related by Davis concerning the light turning red. {¶ 11} Finally, Curtis Carter testified in rebuttal. Carter indicated that he recognized Davis' vehicle when he came upon the accident scene. Carter testified that he stopped to check on Davis, who is his wife's grandmother. According to Carter's testimony, while he was at the scene, appellant informed him that when she came to the intersection the light was green, but that it changed and she was unable to stop. {¶ 12} At the close of evidence and summations, the trial court, on its own motion, pursuant to Crim. R. 7, amended the charges from a violation of W.M.C. 72.22(A) (failure to yield at a stop sign) to a violation of W.M.C. 70.21(A)(3) (failure to yield at a red light). Appellant objected to the trial court's amendment of the charges. Appellant also asked the court for a continuance, but conceded that the testimony would be the same if they had another trial. The trial court granted the continuance and informed appellant that she could present any further evidence going to the amended charges. The trial never resumed, and instead, the parties filed briefs with the court addressing the trial court's amendment of the charges pursuant to Crim. R. 7. {¶ 13} On April 10, 2002, the trial court issued its decision and judgment. The trial court found that its amendment of the ticket was proper. It also found appellant guilty of failing to stop at a traffic signal (i.e., red light), a minor misdemeanor in violation of W.M.C. 70.21(A)(3). The trial court imposed a $50 fine upon appellant and ordered her to pay court costs. The Appeal {¶ 14} Appellant timely filed her notice of appeal and presents the following assignments of error for our review. {¶ 15} First Assignment of Error: "The trial court erred in denying appellant's motion for acquittal pursuant to Crim. R. 29(A) inasmuch as there was not testimony in the city's case that appellant failed to stop at a stop sign as required by W.M.C. 72.22(A)." {¶ 16} Second Assignment of Error: "The trial court erred in amending the initial charge of violating W.M.C. 72.22(A) (stop sign) to W.M.C. 70.21(A)(3)(a) (red light) after closing arguments and on its own motion in direct violation of Criminal Rule 7(D)." {¶ 17} We will address appellant's Second Assignment of Error first, as it resolves the issue before us. I. Amending the Complaint {¶ 18} At issue in this assignment of error is whether the trial court's application of Crim. R. 7(D) was proper. Crim. R. 7(D) provides in part: "The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged." {¶ 19} "Whether an amendment changes the name or identity of the crime charged is a matter of law." State v. Cooper (June 25, 1998), Ross App. No. 97CA2326, citing State v. Jackson (1992), 78 Ohio App.3d 479,605 N.E.2d 426. This Court reviews matters of law de novo. See id.;Nicholas v. Hanzel (1996), 110 Ohio App.3d 591, 674 N.E.2d 1237. {¶ 20} We recognize the wisdom in "liberally" permitting the amendment of traffic ticket complaints. See Cleveland Heights v.Perryman (1983), 8 Ohio App.3d 443, 446, 457 N.E.2d 926 ("[A]mendments of misdemeanor complaints should be allowed, if the defendant still has a reasonable opportunity to prepare his defense and the amendments simply clarify or amplify in a manner consistent with the original complaint."). Nevertheless, if an amendment to a misdemeanor complaint changes the name or identity of the crime charged, that amendment is erroneous. {¶ 21} In the case sub judice, appellant was cited for violating W.M.C. 72.22(A), which provides: "Except when directed to proceed by a law enforcement officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it." {¶ 22} After the close of evidence and summations, the trial court amended the charge to a violation of W.M.C. 70.21(A)(3)(a), which provides: "Vehicular traffic facing a steady red signal alone shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or if none, then before entering the intersection, and shall remain standing until an indication to proceed is shown * * *." {¶ 23} An amendment from W.M.C. 72.22(A) to W.M.C. 70.21(A) does change the name of the offense. W.M.C. 72.22 is entitled "Right-Of-Way At Through Highways; Stop Signs; Yield Signs," while W.M.C. 70.21 is entitled "Signal Lights." Furthermore, each offense contains an element that the other does not: a violation of W.M.C. 72.22 requires the state to prove that the defendant failed to stop at a stop sign, which need not be shown for W.M.C. 70.21; a violation of W.M.C. 70.21 requires the state to prove that the defendant failed to obey the signal lights at an intersection (i.e., stop at a stop light), which need not be shown for W.M.C. 72.22. Thus, the amendment from W.M.C. 72.22 to W.M.C. 70.21 also changes the identity of the offense charged. Therefore, we hold that the amendment of a traffic ticket from a stop sign violation to a stop light violation changes the name and identity of the offense in violation of Crim. R. 7(D). {¶ 24} Accordingly, we sustain appellant's Second Assignment of Error. II. Motion for Acquittal {¶ 25} Based on our disposition of appellant's Second Assignment of Error, we find that the remaining assignment of error is rendered moot. See App. R. 12(A)(1)(c). Conclusion {¶ 26} The trial court's amendment of the traffic ticket issued appellant violates Crim. R. 7(D). Therefore, we sustain appellant's Second Assignment of Error. Accordingly, we reverse the judgment of the trial court and remand the cause for proceedings not inconsistent with this opinion. Judgment reversed and cause remanded. JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED, and the cause remanded to the trial court for further proceedings consistent with this opinion, costs herein taxed to appellee. The Court finds that there were reasonable grounds for this appeal. It is further ordered that a special mandate issue out of this Court directing the JACKSON COUNTY MUNICIPAL COURT to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this Entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Harsha, J.: Concurs in Judgment and Opinion. Kline, J.: Concurs in Judgment Only.

2016-07-06 06:41:56.162878+00

OPINION {¶ 1} Appellant, Juan R. Saldana, appeals the judgment entered by the Geauga County Court of Common Pleas. The trial court entered summary judgment in favor of appellees, Erickson Landscaping Construction ("Erickson") and James Conrad, Administrator, Bureau of Workers' Compensation. {¶ 2} Saldana worked for Erickson. The employees of Erickson would report to work at a maintenance garage, where a time clock was kept. After clocking in, the employees would leave in company trucks to the various landscaping jobs. After completing their work, the employees would return to the garage, clock out, and leave in their personal vehicles. {¶ 3} Some of the employees at Erickson did not have automobiles or driver's licenses and would ride to and from work with other employees. Wayne Erickson, Erickson's owner, approved and encouraged these transportation arrangements. {¶ 4} On the day in question, Saldana claims he was planning on giving Ramon Masias, another employee, a ride home. Although this was not the usual arrangement, Saldana stated they were planning on going shopping for car stereo equipment after work. {¶ 5} On September 5, 2002, Saldana returned to the garage about 5:30 p.m. and clocked out. Masias was not due to return to the garage until after 6:00 p.m. While waiting for Masias, Saldana decided to work on his personal car. He backed the vehicle up to the bay door of the garage and began working on the car. When Saldana was working on his car, Tim Simpson, a foreman at Erickson, threw an "M-80" or "M-100" firecracker towards Saldana's car to scare him. Simpson had also clocked out at the time of this incident. Saldana picked up the firecracker in an attempt to throw it. It exploded in his hand. Saldana was injured as a result of the incident. {¶ 6} Saldana submitted a claim for workers' compensation benefits. This claim was denied. After exhausting his administrative remedies, Saldana appealed to the common pleas court, pursuant to R.C. 4123.512. At the trial court level, all parties submitted motions for summary judgment. The trial court denied Saldana's motion for summary judgment and entered summary judgment in favor of appellees. The trial court found that Saldana was not acting in the course and scope of his employment at the time of the firecracker incident and, thus, was not entitled to participate in the workers' compensation fund. {¶ 7} Saldana raises one issue for review, construed by this court as an assignment of error: {¶ 8} "Whether an employee who is waiting on the employer's premises for another co-employee to return from working, so he can provide that co-employee with a ride home, is in the course and scope of his employment, and therefore has a right to participate in the workers' compensation fund when injured while working." {¶ 9} The trial court's judgment entry overrules Saldana's motion for summary judgment and enters summary judgment in favor of appellees. We ultimately conclude that there remain genuine issues of material fact and that summary judgment is not appropriate in favor of any of the parties. However, since judgment was entered in favor of appellees, we will analyze this matter as it relates to appellees' motions for summary judgment. {¶ 10} Pursuant to Civ.R. 56(C), summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.1 In addition, it must appear from the evidence and stipulations that reasonable minds can come to only one conclusion, which is adverse to the non-moving party.2 The standard of review for the granting of a motion for summary judgment is de novo.3 {¶ 11} In Dresher v. Burt, the Supreme Court of Ohio set forth a burden-shifting exercise to occur on a summary judgment determination. Initially, the moving party must point to evidentiary materials to show that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law.4 If the moving party meets this burden, a reciprocal burden is placed on the non-moving party to show that there is a genuine issue of material fact for trial.5 {¶ 12} "In order to qualify for workers' compensation, an employee must have suffered an injury `in the course of, and arising out of,' his employment."6 The Supreme Court of Ohio has set forth the following test to determine whether there was a causal connection between the injury and the employment to satisfy the classic definition of "arising out of" the employment: "`(1) the proximity of the scene of the accident to the place of employment, (2) the degree of control the employer had over the scene of the accident, and (3) the benefit the employer received from the injured employee's presence at the scene of the accident.'"7 {¶ 13} Initially, we note that Saldana had clocked out one half hour before the firecracker incident and, thus, was not being paid at the time of his injury. He was working on his personal vehicle. While Saldana was not "on duty," we turn to theFisher v. Mayfield test to determine whether Saldana's injury "arose out of" his employment. The undisputed facts reveal that the first prong of the test was met, as the injury occurred on Erickson's premises. The remaining inquiries are whether Saldana's activities conveyed a benefit to Erickson and the degree of control Erickson exercised over the situation. Specifically, the question is whether Saldana's continued presence on the employer's premises waiting to give a co-worker a ride qualifies him for worker's compensation benefits. {¶ 14} Saldana claims he was conveying a benefit upon Erickson by waiting to give a co-employee a ride home. Saldana cites Curran v. Mayfield in support of his argument.8 In Curran, an individual was injured when she slipped and fell, when returning to the employer's building after she had clocked out, to see what was taking her son so long. She was intending on giving her son, another employee, a ride home.9 The Fifth Appellate District affirmed summary judgment in favor of the injured worker, holding that the employer had control over the premises and the employer benefited from the ride-sharing arrangement.10 {¶ 15} In his brief in opposition to the appellees' motions for summary judgment and in support of his own motion for summary judgment, Saldana specifically references the deposition testimony of several employees of Erickson, as well as Wayne Erickson. In general, Saldana argued that this testimony demonstrates that a ride-sharing system was in place at Erickson, which sufficiently related to his employment to qualify his injury for workers' compensation benefits. For the reasons that follow, this deposition testimony satisfied Saldana's reciprocal burden, under Dresher v. Burt, by showing genuine issues of material fact existed for trial. The deposition testimony set forth the following facts. {¶ 16} An Erickson employee, Liburio Reynoso, stated that he would wait for a ride from other employees after his shift. He indicated that he would have to wait an hour or more about twice a week. He stated that Wayne Erickson knew he would wait for a ride after his shift concluded. Finally, he was never told he was prohibited from remaining on the premises after his shift had concluded to wait for a ride. {¶ 17} Another employee, Gabriel Valdez, stated he provided rides to other employees. He testified that Wayne Erickson would work with the employees that drove to ensure that everyone had a ride home, and that he permitted employees to wait for other employees to return to the shop in order to give or receive a ride home. In addition, he stated that Wayne Erickson encouraged his employees to give coemployees rides. {¶ 18} In his deposition, Wayne Erickson stated, "I'll be on a job with one of those guys, and I would drive them home or make arrangements for them to drive them home through me or through one of my foremen." In addition, he stated that if an employee was left without a ride, he would provide another employee to give that employee a ride home. He also admitted that he had encouraged certain employees to give fellow employees rides. Finally, he acknowledged that certain employees would wait for rides after their shift. If he was back at the shop and noticed an employee waiting a long time, he would have the employee do busy work, such as sweeping the floor. {¶ 19} As the non-moving party, Saldana was entitled to have all facts construed most strongly in his favor.11 Thus, for the purpose of a summary judgment determination, the collective deposition testimony indicates that: (1) Saldana was waiting to give Masias a ride; (2) Erickson employed several employees that did not have driver's licenses; (3) Erickson took additional steps to ensure that his employees had rides to and from work; and (4) Erickson encouraged ride-sharing agreements and approved of employees waiting after their shift ended to give or receive a ride home. Saldana presented sufficient evidence that Erickson benefited from the ride-sharing agreements to survive a motion for summary judgment. In addition, the evidence suggests that Erickson exercised control over the ride-sharing agreements, including allowing employees to wait for rides. Reasonable minds could differ on these factors. There remain genuine issues of material fact as to whether Saldana's activity arose out of his employment in order for his injury to qualify for workers' compensation benefits. {¶ 20} Appellees note that Saldana was working on his personal car immediately preceding the injury. The Ninth Appellate District has held that repairing a personal vehicle, even while on the clock, conveys no benefit to the employer.12 The court held the injury sustained during the attempted repair does not qualify for workers' compensation benefits.13 However, it is important to note that the injury in Tamarkin Co. v. Wheeler was a direct result of repairing the car. The employee was cut on the mirror of his automobile.14 Saldana was not injured as a result of working on his car. He was injured as a result of a prank. Saldana could have sustained the same injury had he been sitting outside the shop. {¶ 21} Saldana stated that his primary reason for remaining on Erickson's premises was to wait for Masias and that he was working on his car to "blow off time." Again, for summary judgment purposes, Saldana is entitled to have the evidence construed most strongly in his favor. Therefore, for this analysis, what Saldana was doing while waiting for Masias to return to the shop is of little significance. {¶ 22} The trial court concluded that Saldana's act of attempting to toss the firecracker was not related to his employment and did not convey a benefit to Erickson. The evidence in the record suggests that the firecracker was initially thrown as a prank. This activity would be classified as "horseplay." There are two general requirements that need to be met for an injury resulting from "horseplay" to be compensable. First, the claimant must not have instigated the horseplay.15 In addition, the injury must have occurred while the injured worker was on duty.16 {¶ 23} In this matter, there is no evidence that Saldana instigated the "horseplay." Rather, Simpson admitted lighting the firecracker and throwing it in Saldana's direction. While Simpson stated that Saldana walked to the firecracker, there is no evidence showing the initial distance between the firecracker and Saldana. Thus, construing the evidence most strongly in favor of Saldana, there remains a genuine issue of material fact regarding his participation, if any, in the horseplay. Accordingly, summary judgment against Saldana is not appropriate on this issue. In addition, due to our previous analysis, genuine issues of material fact remain as to whether Saldana's waiting on the premises to give a co-employee a ride home "arose out of his employment." Accordingly, if Saldana was participating in an activity "arising out of his employment," then an injury sustained as a result of horseplay that was not instigated by him could be compensable under the Workers' Compensation Fund. {¶ 24} There remain several genuine issues of material fact to be resolved by a trier of fact. As such, the trial court erred by entering summary judgment in favor of appellees. Likewise, Saldana is not entitled to judgment as a matter of law, so the trial court did not err by overruling his motion for summary judgment. {¶ 25} Saldana's assignment of error has merit to the extent indicated. {¶ 26} The judgment of the trial court overruling Saldana's motion for summary judgment is affirmed. The judgment of the trial court granting appellees' motions for summary judgment is reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion. Ford, P.J., concurs, Christley, J., dissents with Dissenting Opinion. 1 Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. 2 Civ.R. 56(C). 3 Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102,105. 4 Dresher v. Burt, 75 Ohio St.3d at 293. 5 Id. 6 Abrams v. Eltech Sys., Inc. (Sept. 8, 1995), 11th Dist. No. 94-L-165, 1995 Ohio App. LEXIS 3894, at *4, citing R.C.4123.01(C). 7 Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277, quoting Lord v. Daugherty (1981), 66 Ohio St.2d 441, syllabus. 8 Curran v. Mayfield (Oct. 11, 1990), 5th Dist. No. CA-391, 1990 WL 163785. 9 Id. 10 Id. at *2. 11 Civ.R. 56(C). 12 Tamarkin Co. v. Wheeler (1992), 81 Ohio App.3d 232,235. 13 Id. 14 Id. at 233. 15 Kohn v. Trimble (Nov. 17, 1995), 11th Dist. No. 95-T-5210, 1995 Ohio App. LEXIS 5105, at *8, citing Caygill v.Jablonski (1992), 78 Ohio App.3d 807. 16 Caygill v. Jablonski, 78 Ohio App.3d at 816, quotingIndus. Comm. v. Bankes (1934), 127 Ohio St. 517, paragraph three of the syllabus.

2016-07-06 06:41:55.094711+00

DECISION. {¶ 1} Petitioner-appellant Matthew Connors appeals the judgment of the common pleas court dismissing his postconviction petition. For the reasons that follow, we affirm the judgment of the court below. {¶ 2} Connors was convicted in April of 1997 of felonious assault, aggravated riot, and inducing panic. The trial court sentenced him to the maximum authorized prison terms for felonious assault and inducing panic and to what the court mistakenly believed to be the maximum term for aggravad riot. The court further ordered that the terms be served consecutively. Connors appealed. {¶ 3} On appeal, we overruled Connors's challenges to the findings supporting the maximum and consecutive sentences. But we concluded that the trial court had "err[ed] by misconstruing the maximum prison term for aggravated riot." We, therefore, vacated the five-year prison term for aggravated riot, imposed instead the maximum term of eighteen months, and affirmed the judgment as "modif[ied]."1 Connors took no further appeal. {¶ 4} In September of 2004, Connors filed a petition for postconviction relief pursuant to R.C. 2953.21 et seq. The common pleas court concluded that Connors had failed to satisfy the time strictures of R.C. 2953.21 and the jurisdictional requirements of R.C. 2953.23. On that basis, the court dismissed the petition, and this appeal followed. {¶ 5} Connors presents on appeal two assignments of error. The assignments of error, when considered together and reduced to their essence, challenge the common pleas court's dismissal of Connors's petition and the court's failure to issue findings of fact and conclusions of law. These challenges are untenable. {¶ 6} R.C 2953.21(A)(1) requires a postconviction petitioner to demonstrate a denial or infringement of his rights in the proceedings resulting in his conviction that have rendered the conviction void or voidable under the Ohio Constitution or the United States Constitution. In advancing such a claim, the petitioner bears the initial burden of demonstrating, through the petition, the supporting affidavits, and the files and records of the case, "substantive grounds for relief."2 A postconviction claim is subject to dismissal without a hearing if the petitioner has failed to submit with his petition evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief.3 {¶ 7} R.C. 2953.21(G) requires the common pleas court to journalize findings of fact and conclusions of law when it denies a petition for postconviction relief. But the court's disposition of a tardy petition need not include findings of fact and conclusions of law if the court is without jurisdiction to address the petition.4 {¶ 8} Connors, in his petition, contended that the trial court had denied him his constitutional rights to due process and a jury trial, when it imposed greater-than-theminimum, maximum, and consecutive prison terms based upon its own determination, rather than a jury's determination, of the "enhanc[ing]" felony-sentencing findings. In support of this contention, he cited the United States Supreme Court's 2000 decision in Apprendi v. New Jersey5 and its 2004 decision inBlakely v. Washington.6 {¶ 9} In Apprendi, the Court held that the right to a jury trial guaranteed under the Sixth Amendment to the United States Constitution required that the state submit to a jury and prove beyond a reasonable doubt any fact (other than the fact of a prior conviction) that increases the penalty for a crime beyond the "prescribed statutory maximum."7 Four years later, the Court in Blakely held that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solelyon the basis of the facts reflected in the jury verdict or admitted bythe defendant."8 Seven months later, in United States v. Booker, the Court "reaffirm[ed] [its] holding in Apprendi," holding that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."9 {¶ 10} The Court's decision in Booker prompted this court to revisit earlier decisions in which we had held that Apprendi and its progeny did not apply to Ohio's sentencing scheme.10 Thus, in this district, in the wake of Booker, the Sixth Amendment jury-trial right is not implicated by the imposition of consecutive terms of imprisonment.11 But a trial court may not, consistent with the Sixth Amendment, impose a sentence exceeding the maximum term authorized by the facts admitted by the offender or proved to a jury beyond a reasonable doubt,12 except when it bases its finding that the offender poses the "greatest likelihood of future crime" upon the offender's history of prior convictions.13 Nor may a court sentence an offender who has not previously served a prison term to a term of confinement in excess of the minimum prison term authorized for the offense,14 except when it bases its finding that the minimum term "will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others" upon the offender's history of criminal convictions.15 {¶ 11} In so holding, we applied the rule of Apprendi to cases on direct appeal.16 But the Supreme Court issued its June 2004 decision in Blakely and its January 2005 decision in Booker well after the time had elapsed for Connors to pursue the matter on direct appeal from his 1997 convictions.17 Moreover, R.C. 2953.21(A)(2) requires that a postconviction petition be filed "no later than one hundred eighty days after the date on which the trial transcript [was] filed in the court of appeals in the direct appeal of the judgment of conviction." The transcript of the proceedings at Connors's trial was filed in February of 1998, and Connors filed his petition in September of 2004. Thus, the Court issued the Blakely and Booker decisions, and Connors filed his petition, well after the expiration of the time afforded under R.C.2953.21(A)(2) to mount a collateral attack upon his judgment of conviction through a postconviction petition.18 {¶ 12} R.C. 2953.23 closely circumscribes the jurisdiction of a common pleas court to entertain a tardy postconviction petition. The petitioner must show either that he was unavoidably prevented from discovering the facts upon which his petition depends, or that he is basing his claim upon a new and retrospectively applicable federal or state right recognized by the United States Supreme Court since the expiration of the time prescribed in R.C. 2953.21(A)(2). And he must show "by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found [him] guilty of the offense of which [he] was convicted * * *."19 {¶ 13} This court has yet to address the issue of whether the Court established in Blakely a new and retrospectively applicable right.20 And we do not reach the issue here. {¶ 14} R.C. 2953.23(A)(1) permits a common pleas court to entertain a tardy postconviction challenge to a death sentence, if the petitioner, by clear and convincing evidence shows that, "but for constitutional error at the sentencing hearing, no reasonable factfinder would have found [him] eligible for the death sentence." But the statute requires a tardynoncapital petitioner to demonstrate that "but for constitutional error at trial, no reasonable factfinder would have found [him] guilty of the offense of which [he] was convicted." Thus, the statute, by its terms, precludes a common pleas court from entertaining a tardy postconviction challenge to a sentence presented by a noncapital petitioner. Accordingly, we hold that the common pleas court properly declined to entertain Connors's postconviction challenges to his sentences.21 {¶ 15} Our conclusion here, that the common pleas court had no jurisdiction to entertain Connors's tardy petition, also compels the conclusion that the court had no obligation to journalize findings of fact and conclusions of law.22 {¶ 16} Thus, finding no merit to any aspect of the assignments of error presented on appeal, we affirm the judgment of the common pleas court. Judgment affirmed. Doan, P.J., Hildebrandt and Hendon, JJ. 1 State v. Connors (Aug. 28, 1998), 1st Dist. No. C-970407. We note that R.C. 2953.08(G) permits an appellate court to "increase, reduce, or otherwise modify a sentence * * * or [to] vacate the sentence and remand the matter to the sentencing court for resentencing." In Connors's direct appeal from his judgment of conviction, we elected to impose the modified sentence for aggravated riot, rather than remand the matter to the trial court for resentencing. Nevertheless, in March of 2000, the common pleas court, acting without the jurisdiction that a remand would have conferred, "re-sentence[d]" Connors by "reducing" his sentence for aggravated riot to eighteen months. By this judgment entry, the trial court duplicated our modification of the sentence without the jurisdiction to do so. Thus, the March 2000 entry constituted a legal nullity. 2 R.C. 2953.21(C). 3 See id.; State v. Pankey (1981), 68 Ohio St.2d 58, 428 N.E.2d 413;State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819. 4 See State ex rel. Carroll v. Corrigan, 84 Ohio St.3d 529,1999-Ohio-367, 705 N.E.2d 1330; State v. Byrd (2001), 145 Ohio St.3d 318,762 N.E.2d 1043. 5 (2000), 530 U.S. 466, 120 S.Ct. 2348. 6 (2004), 542 U.S. ___, 124 S.Ct. 2531. 7 Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. 2348. 8 Blakely v. Washington, 542 U.S. at ___, 120 S.Ct. at 2537 (emphasis in original). 9 (2005), ___ U.S. ___, ___, 125 S. Ct. 738, 756. 10 See, e.g., State v. Eckstein, 1st Dist. No. C-030139,2004-Ohio-5059; State v. Bell, 1st Dist. No. C-030726, 2004-Ohio-3621. 11 State v. Montgomery, 1st Dist. No. C-040190, 2005-Ohio-1018. 12 State v. Bruce, 1st Dist. No. C-040421, 2005-Ohio-373. 13 State v. Lowery, 1st Dist. No. C-040157, 2005-Ohio-1181. 14 State v. Montgomery, supra. 15 State v. McIntosh, 1st Dist. No. C-040280, 2005-Ohio-1760. 16 See State v. Lowery, supra, at ¶ 41; State v. Bruce, supra, at ¶ 9 (quoting United States v. Booker, ___ U.S. at ___, 125 S.Ct. at 25, to the effect that the holdings of Apprendi, Blakely, and Booker apply to "all cases on direct review or not yet final"). 17 Connors appealed his April 1997 conviction to this court within the thirty days provided under App.R. 4(A). He did not appeal this court's August 1998 decision to the supreme court within the forty-five days provided under S.Ct.Prac.R. II, § 2(A)(1)(a). And, as we noted supra, the trial court acted without jurisdiction when, in March of 2000, it "resentenc[ed]" Connors for aggravated riot. Thus, the March 2000 judgment did not give rise to a new right of appeal. 18 Again, the trial court's March 2000 judgment did not extend the time for filing a postconviction petition. 19 R.C. 2953.23(A)(1). 20 See State v. Crawford, 1st Dist. No. C-030540, 2004-Ohio-4505 (in which we declined to address, upon the appellant's App.R. 26 application for reconsideration, the issue of whether Blakely applied retrospectively to an appeal submitted two days before Blakely was released). 21 Accord State v. Barkley, 9th Dist. No. 22351, 2005-Ohio-1268. 22 See State ex rel. Carroll v. Corrigan, supra; State v. Byrd, supra.

2016-07-06 06:41:56.279597+00

OPINION {¶ 1} Appellants Jeffrey and Thalia Oster appeal a judgment of the Licking County Common Pleas Court ordering them to pay attorney fees and litigation costs incurred in the instant action by appellees Clifton Crais, Pamela Scully, Kenyon College, the First-Knox National Bank of Mount Vernon, and State Farm Fire and Casualty Company. {¶ 2} "THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES AND EXPENSES IN FAVOR OF APPELLEES AND AGAINST APPELLANTS, JEFFREY AND THALIA OSTER, AND THEIR ATTORNEY ANDREW J. SIMON. {¶ 3} "THE TRIAL COURT ABUSED ITS DISCRETION IN THE AMOUNT OF ATTORNEY FEES AWARDED." {¶ 4} On July 25, 1996, appellants filed an action in the Licking County Common Pleas Court against appellees Crais and Scully, claiming that appellants were owners of a portion of real estate in the Village of Granville by adverse possession. The case was voluntarily dismissed. {¶ 5} On October 21, 1999, appellants filed the instant action against appellees Crais and Scully, alleging that they had trespassed against appellant's property by virtue of a fence erected in 1996. Appellees counterclaimed, alleging that appellants trespassed on their property by virtue of an air conditioner unit which encroached on their property. Appellees First Knox National Bank of Mount Vernon and Kenyon College were joined as parties to the action. The case was dismissed on summary judgment, and this court affirmed. {¶ 6} Appellees filed motions for recovery of expenses, including attorney's fees, pursuant to App.R. 23. Appellee State Farm and Casualty Company intervened to recover attorney fees incurred in defending its policy holders, appellees Crais and Scully. This court overruled the motion for fees pursuant to App.R. 23 on December 3, 2001. {¶ 7} Appellees all filed motions for attorney fees in the Common Pleas Court, alleging frivolous conduct pursuant to Civ.R. 11. Following a two-day oral hearing in the matter, the court entered judgment awarding attorney fees, costs, and expenses in favor of appellees, and against appellants and their attorneys, jointly and severally. The court ordered that appellants pay fees to appellees Crais and Scully in the amount of $10,090.34; to State Farm Insurance in the amount of $33,730.88 and $2030, to Kenyon College in the amount of $9,722.39, and to First Knox National Bank of Mount Vernon in the amount of $4475. Appellants appeal the award of attorney fees. I II {¶ 8} We address both assignments of error together, as both address the propriety of the award, and challenge the amount of the award. {¶ 9} Appellants failed to request a transcript of the hearing concerning attorney fees, and also failed to provide the court with an App.R. 9(C) statement of the evidence, despite being granted an extension of time to do so. Where portions of the transcript are necessary for resolution of assigned errors and are omitted from the record, the reviewing court has nothing to pass upon, and thus, as to those assigned errors, has no choice but to presume the validity of the lower court proceedings and affirm. Knapp v. Edwards Laboratories (1980),61 Ohio St.2d 197, 199. {¶ 10} As to the court's finding that the litigation was frivolous, and the reasonableness and necessity of the attorney fees incurred by counsel for appellees, this court cannot pass on the propriety of that ruling in the absence of a transcript, and must presume regularity and affirm. {¶ 11} Appellants also argue that the court erred in awarding fees and costs associated with the appeal pursuant to App.R. 23, as this court has previously overruled a motion for fees pursuant to App.R. 23. {¶ 12} Civ.R. 11 allows an award of expenses and reasonable attorney fees incurred in defending a complaint which to the best of the attorney's or parties' knowledge, information, and belief, did not have good grounds to support it, or is interposed solely for purposes of delay. App.R. 23 provides that if a Court of Appeals determines that an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee, including attorney fees and costs. {¶ 13} As this court has previously determined that the appeal was not frivolous pursuant to App.R. 23, the trial court could not award attorney fees and expenses incurred in conjunction with the appeal. Thus, to the extent it is apparent from the limited record provided to this court that the trial court awarded fees incurred in conjunction with the appeal, the judgment is in error. {¶ 14} It is apparent from the court's judgment that the amount of attorney fees was determined from the affidavits filed by the attorneys for appellees. The affidavits of Attorney Caborn for State Farm and Attorney Lovering for Kenyon College do not specifically set forth which portion of fees were incurred for the appeal, and which portion of fees were incurred in the trial court. In the absence of a transcript or evidentiary demonstration of the exact amount of fees incurred in accordance with the appeal, we cannot disturb the court's award concerning these two fee amounts. {¶ 15} However, the affidavit of Attorney Railsback representing appellee First Knox states that of the $4475 incurred in the case, $1687.50 of the fees were incurred in the court of appeals. The affidavit of Attorney Arnold for appellees Crais and Scully states that of the $10,090.34 incurred in the case, $1320 was incurred on appeal. The affidavit of Attorney Wenger for State Farm states that of the $33,730.88 incurred in the case, $10,617.53 was incurred on appeal. As to the attorney fee awards involving these three attorneys, the judgment is vacated solely as to the portion of fees incurred in the court of appeals. {¶ 16} The assignment of error is overruled in part and sustained in part. {¶ 17} The judgment of the court awarding attorney fees against appellant and in favor of appellee State Farm in the amount of $2030 incurred by Attorney Caborn is affirmed. The judgment of the court awarding appellee Kenyon College attorney fees expenses and costs in the amount of $9722.39 is affirmed. {¶ 18} The judgment of the court awarding attorney fees, expenses, and costs, in favor of appellee First Knox National Bank of Mount Vernon, appellees Crais and Scully, and appellee State Farm as to Attorney David Wenger, is vacated. Pursuant to App.R. 12(B) we hereby enter the judgment the court should have entered, and award attorney fees, expenses, and costs against appellant Jeffrey A. Oster and Thaila Oster, and their attorney, Andrew J. Simon, in favor of appellee First Knox National Bank in the amount of $2787.50; to appellees Crais and Scully in the amount of $8770.34, and to appellee State Farm for expenses incurred by Attorney Wenger in the amount of $23,113.35. Costs to be split equally between the parties.

2016-07-06 06:41:56.33185+00

DECISION. {¶ 1} Defendant-appellant Calvin Tolar pleaded guilty to two counts of theft, one count of failing to deliver a certificate of motor vehicle title, and one count of altering a certificate of motor vehicle title. Tolar was a used-car salesman and had used his position to defraud several of his customers. The trial court sentenced Tolar to five years of community control. Under the conditions of his community control, Tolar was to provide legal car titles to several of his victims, make restitution to the victims, and pay court costs. He agreed to pay two hundred dollars each month to satisfy the financial portion of his community-control obligations. {¶ 2} After several months, Tolar had not provided legal title to all of the victims and had not made any of his monthly payments. But the trial court gave Tolar another chance to fulfill his obligations, continuing sentencing on the community-control violations for another six months. By his next sentencing hearing, Tolar still had not satisfied the conditions of his community control. The trial court sentenced Tolar to four years' imprisonment. Tolar appealed his sentence. {¶ 3} We reviewed the case and issued a judgment holding that the trial court did not have the authority to sentence Tolar to a term of imprisonment.1 The trial court had erred by failing to tell Tolar what his prison sentence would be if he violated his community-control sanctions.2 Even though the trial court had erred in imposing a prison term, we held that the trial court could impose a longer term for the same community-control sanction or a more restrictive sanction such as local jail time. During the appeal, Tolar was imprisoned for approximately nine months. {¶ 4} On remand, the trial court seemingly sentenced Tolar to 180 days' incarceration in a local jail and two years of community control. But the court did not credit Tolar's prison time toward his new sentence. {¶ 5} Tolar now raises three assignments of error: (1) the trial court should have credited the time he spent in prison toward his new sentence; (2) one of the conditions of community control was ambiguous; and (3) the trial court should have held a hearing to determine whether Tolar could pay the court-ordered restitution. I. Credit for Time Served {¶ 6} Tolar argues that the trial court erred by resentencing him to a term of local imprisonment and by not crediting him with any of the nine months he had served in prison. We agree. {¶ 7} If an offender violates the terms of a community-control sanction, the trial court may sentence the offender to (1) a longer time under the same sanction; (2) a more restrictive sanction, including local jail time; or (3) a prison term within the range of terms appropriate for the underlying offense.3 This court has previously held that the court may only impose a prison term for a violation of community-control sanctions if (1) the offender was given notice of the specific prison term that would be imposed at the original sentencing hearing, and (2) the term of imprisonment given does not exceed the term for which the offender was given notice at the prior hearing.4 It was on this basis that we reversed Tolar's original prison sentence.5 {¶ 8} When the trial court sentences an offender to jail, the court shall reduce the sentence by the total number of days the person has been confined for any reason arising out of the offense for which the person has been convicted and sentenced.6 The trial court should make the determination as to the proper number of days' credit available to the offender.7 {¶ 9} In this case, the trial court had already sentenced Tolar to nine months' imprisonment for the violation of his community-control sanctions. Tolar served nine months before we vacated the sentence. Without any further community-control violations or the commission of any additional crimes, the trial court purportedly resentenced Tolar to an additional six months in a local jail. The court was "not sure where that nine months comes in * * *." But we are convinced that the nine months should have been awarded as credit for time served. The trial court should have reduced Tolar's sentence by the total number of days that he was confined as a result of his original sentence on the community-control violations. {¶ 10} But we have another problem with Tolar's sentence though the transcript reflects that the trial court sentenced Tolar to 180 days' local incarceration, the sentencing entry contains no jail sentence. The sentencing entry — and the court speaks only through its journal entries8 — does not exhibit the error of which Tolar complains. If Tolar has actually served the 180 days, we are at a loss to explain how he could have done so without any paperwork. There is none in the case file or on the trial docket. {¶ 11} Though counsel has orally stated that Tolar was sent to jail, the journalized sentence contained no jail time. Because we are confined to the record, and the record does not demonstrate the error Tolar complains of, we must overrule this assignment of error. II. Community-Control Conditions {¶ 12} In his second assignment of error, Tolar asserts that the conditions of his community control were ambiguous and therefore beyond his ability to follow. In this respect, he challenges the trial court's instruction to "cooperate with law enforcement in regards to getting these people their car titles back." {¶ 13} A trial court may impose any conditions of release under a community-control sanction that the court considers appropriate.9 Tolar had already partially complied with the condition concerning the titles. Tolar's counsel stated that Tolar had already resolved four of the seven title problems prior to his original sentencing. There was no evidence that Tolar did not understand what the trial court requested of him. Further, Tolar was already in violation of his community control because he had failed to make his monthly payments. {¶ 14} We therefore overrule Tolar's second assignment of error. III. Restitution Hearing {¶ 15} In his third assignment of error, Tolar argues that the trial court should have held a hearing to determine whether he was able to pay the court-ordered restitution. Tolar is incorrect. {¶ 16} A trial court must consider the offender's ability to pay a financial sanction.10 The trial court may hold a hearing on an offender's ability to pay a financial sanction.11 The decision to hold such a hearing is left to the discretion of the trial court.12 {¶ 17} We cannot modify a financial sanction unless we find by clear and convincing evidence that it is contrary to law.13 Restitution by the offender to the victims of the offender's crimes is a proper basis for a financial sanction.14 Tolar's financial sanction, therefore, was not contrary to law. {¶ 18} The trial court continued sentencing once to allow Tolar more time to comply with the sanctions. At the next sentencing hearing, Tolar informed the court that he was making approximately $3,000 each month at his new job. We cannot say that the court abused its discretion by not holding a hearing to determine Tolar's ability to pay the restitution. Further, Tolar did not request a hearing to determine his status as an indigent, so he has waived any error.15 {¶ 19} Accordingly, we affirm the judgment of the trial court. Judgment affirmed. Doan, P.J., concurs. Gorman, J., concurs in judgment only. 1 See State v. Tolar (Nov. 27, 2002), 1st Dist. No. C-020195. 2 Id. 3 R.C. 2929.15(B); R.C. 2929.16. 4 State v. Sutherlin (Oct. 3, 2003), 1st Dist. No. C-020715;State v. Levy (May 11, 2001), 1st Dist. No. C-000713. 5 See Tolar, supra. 6 R.C. 2949.08(C)(1); State v. Gregory (1995), 108 Ohio App.3d 264,670 N.E.2d 547. 7 Gregory, supra. 8 State v. King, 70 Ohio St.3d 158, 1994-Ohio-412, 637 N.E.2d 903. 9 R.C. 2929.15(A). 10 State v. Davis, 1st Dist. No. C-010477, 2002-Ohio-1982. 11 R.C. 2929.18(E). 12 Id.; Davis, supra. 13 Davis, supra. 14 R.C. 2929.18. 15 See State v. Van Meter, 3rd Dist. No. 7-2000-06, 2000-Ohio-1783.

2016-07-06 06:41:56.338914+00

{¶ 1} I agree with the majority that the trial court's judgment should be affirmed because the judgment is silent as to the imposition of a jail sentence. {¶ 2} But I am reluctant to concur at this time with the holding of the majority that, pursuant to R.C. 2949.08(C)(1), Tolar would have been automatically entitled to credit for the nine months he had previously served under his vacated prison term received when the trial court subsequently imposed a six-month jail sentence as a residential sanction under R.C. 2929.16(A)(1). The problem, as I see it, is a conflict between the mandatory language of R.C. 2949.08(C)(1), cited by the majority, and the discretionary language in R.C. 2929.15(B). R.C.2929.15(B) specifically addresses community-control sanctions and provides, "The court may reduce the longer period of time that the offender is required to spend under the longer sanction, the more restrictive sanction, or a prison term imposed pursuant to this division by the time the offender successfully spent under the sanction that was initially imposed." (Emphasis supplied.) This language would appear to invest the trial court with discretion to decide whether to reduce the longer period of time the violator is required to spend under a longer sanction by granting credit for any earlier time served. {¶ 3} This apparent conflict has arisen more often in an analogous context involving R.C. 2967.191 and the question of credit for local time served at a community-based correctional facility. Most appellate courts have concluded that the language "confined for any reason arising out of the offense" in R.C. 2967.191, which is identical to that in R.C.2949.08(C)(1), takes precedence over the discretionary language in R.C.2929.15(B) and mandates that the time served by a violator at a community-based correctional facility as a residential sanction be credited toward a reduction of his sentence.16 These courts do, however, make clear the conflict between the statutes. {¶ 4} It is likely that a violator would be entitled, as held by the majority, to a reduction of local jail time for a violation of a community-control sanction based on credit for a prison term served under a vacated sentence for the same offense. Conflicting statutes that define penalties must be strictly construed against the state and liberally construed in favor of the accused under R.C. 2901.04(A). Also, simple fairness would seem to dictate this result. But until we have before us a record that demonstrates this error and affords an opportunity to give this issue its due consideration, I elect to refrain from joining the majority's analysis and thus concur in judgment only. 16 State v. Brody (Feb. 9, 2001), 11th Dist. No. 2000-L-018; Statev. Hines (1999), 131 Ohio App.3d 118, 121, 721 N.E.2d 1093. But, see,State v. Dunaway, 12th Dist. No. CA2001-04-048, 2002-Ohio-2316.

2016-07-06 06:41:56.48698+00

OPINION {¶ 1} Plaintiff-appellant, Kathleen Gibbons-Barry, appeals from the judgment of the Franklin County Court of Common Pleas granting summary judgment to defendant-appellee, The Cincinnati Insurance Companies. For the following reasons, we affirm. {¶ 2} On October 17, 1998, appellant's husband, Mohamed Barry, was fatally injured in an automobile accident in the Ivory Coast of Africa. The identity of the individual who struck Mr. Barry's vehicle is unknown. On October 17, 2000, appellant brought suit against the unknown driver, The Cincinnati Insurance Companies, Progressive Insurance and a number of John Doe defendant insurance companies. In her complaint, appellant asserted that the driver who struck her husband's vehicle was either uninsured or underinsured, and that the insurance-company defendants failed to provide coverage under the uninsured or underinsured motorist provisions of the various policies for damages associated with her husband's wrongful death. {¶ 3} During the pendency of the lawsuit, Progressive Insurance settled with appellant. Appellee, who provided both automobile and homeowner's insurance to appellant, moved for summary judgment. In support of its motion for summary judgment, appellee first argued that appellant was not entitled to any coverage under the automobile policy because Mr. Barry's accident occurred outside of the geographical area specified in the policy as the "policy territory." Appellee also argued that appellant was not entitled to uninsured or underinsured motorist coverage under the homeowner's policy. The trial court granted appellee's motion for summary judgment in its entirety, and appellant appealed that decision to this court. {¶ 4} On appeal, appellant assigns the following error: {¶ 5} "The trial court erred in granting defendant-appellee's motion for summary judgment." {¶ 6} Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. Of Commrs. (1997), 123 Ohio App.3d 158, 162. "When reviewing a trial court's ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court." Mergenthal v. Star Banc Corp. (1997),122 Ohio App.3d 100, 103. Civ.R. 56(C) provides that summary judgment may be granted when the moving party demonstrates that: (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 party against whom the motion for summary judgment is made. State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183. {¶ 7} By her single assignment of error, appellant advances two arguments. In the first, appellant maintains that the trial court erred when it concluded that the geographical limitation provision in appellant's automobile policy prevented appellant from recovering under that policy. The geographical limitation provision reads: {¶ 8} "POLICY PERIOD AND TERRITORY {¶ 9} "This policy applies only to accidents and losses which occur: {¶ 10} "1. During the policy period as shown in the Declarations; and {¶ 11} "2. Within the policy territory. {¶ 12} "The policy territory is: {¶ 13} "1. The United States of America, its territories or possessions; {¶ 14} "2. Puerto Rico; or {¶ 15} "3. Canada." {¶ 16} Appellant does not challenge the validity of the geographical limitation provision but, instead, argues that the provision is inapplicable because the "losses" associated with her husband's accident occurred in the United States. Neither "accident" nor "loss" is defined by the policy. Citing Black's Law Dictionary, appellant asserts that "loss" must be defined as "[t]he amount of financial detriment caused by an insured person's death or an insured's property damage, for which the insurer becomes liable." Although appellant acknowledges that her husband's accident occurred outside the geographical territory as defined by the policy, she argues that her "losses" are covered by the policy because she suffered financial detriment caused by her husband's death while residing in the United States. We disagree with appellant's interpretation of the geographical limitation provision. {¶ 17} When the language in an insurance policy is clear and unambiguous, courts must enforce the policy as it is written and imbue the words of the policy with their plain and ordinary meaning. Cincinnati Indemn. Co. v. Martin (1999), 85 Ohio St.3d 604, 607. Pursuant to this basic rule of contract construction, courts will not modify an insurance policy by ascribing finely drawn connotations to simple terms or by disregarding the simplicity or plainness of the terms used. Heiney v. The Hartford, Franklin App. No. 01AP-1100, 2002-Ohio-3718, at ¶ 45. {¶ 18} Contrary to appellant's argument, interpretation of the geographical limitation provision does not turn on the definition of "losses" but, instead, on the word "and." The word "and" is defined as meaning "[a] particle which expresses the relation of connection or addition." Webster's Revised Unabridged Dictionary (1996). Consistent with this definition, the word "and" is usually interpreted in the conjunctive. See Clagg v. Baycliffs Corp. (1998), 82 Ohio St.3d 277, 280 (discussing the application of a statutory rule of construction). {¶ 19} Interpreting the phrase "accidents and losses" with the plain, ordinary meaning of the word "and," we conclude that the geographical limitation provision means that the policy will not apply unless both Mr. Barry's accident and the losses associated with his accident occurred in the geographical territory. Appellant's argument for coverage under the policy interprets the geographical limitation provision as if it was written instead as "accidents or losses." However, as this provision is clear and unambiguous when "and" is interpreted in the conjunctive, we do not adopt appellant's interpretation of the provision. Accordingly, because Mr. Barry's accident occurred outside the policy territory, appellant is not entitled to damages under the automobile policy. {¶ 20} In appellant's second argument, she maintains that the limited liability coverage for a "residence employee" contained in her homeowner's insurance policy renders the policy an automobile insurance policy. Appellant further asserts that appellee's failure to offer uninsured and underinsured motorist coverage as part of her homeowner's policy means that the coverage arises by operation of law. Therefore, appellant concludes that she can recover for damages associated with her husband's wrongful death pursuant to her homeowner's policy. {¶ 21} The statutory law governing uninsured and underinsured motorist coverage has undergone a series of amendments in recent years. Therefore, we must first determine what version of the statutory law applies in order to determine the parties' rights and duties pursuant to the homeowner's policy. {¶ 22} The scope of the uninsured and underinsured motorist coverage under the policy is defined by the statutory law in effect at the time the parties initially contracted or at the time the policy was renewed. Ross v. Farmers Ins. Group of Cols. (1998), 82 Ohio St.3d 281. If a renewal has occurred, "[s]tatutes pertaining to a policy of insurance and its coverage, which are enacted after the policy's issuance, are incorporated into any renewal of such policy if the renewal represents a new contract of insurance separate from the initial policy." Benson v. Rosler (1985), 19 Ohio St.3d 41, 44, overruled in part on other grounds; Wolfe v. Wolfe (2000), 88 Ohio St.3d 246, 251-252. {¶ 23} The exercise of an option to renew a contract results in the creation of a new contract. Dixon v. Professional Staff Mgmt., Franklin App. No. 01AP-1332, 2002-Ohio-4493, at ¶ 25; Medical Life Ins. Co. v. Lamar (Jan. 9, 2001), Franklin App. No. 00AP-201. A contract containing a renewal option is only valid for the term specified in the contract and, upon the end of that specified term, the parties may exercise the option to create a new contract. State ex rel. Preston v. Ferguson (1960), 170 Ohio St. 450, 457-458. On the other hand, the exercise of an option to extend a contract does not result in a new contract. Id. Rather, once the option is exercised, the original contract is valid for both the initial contract term and an additional term. Id. {¶ 24} A contract must clearly indicate that the parties intend the contract to be subject to an option for renewal. Lamar, supra. Otherwise, courts will interpret the contract as providing only for an extension. Id. {¶ 25} Notably, within the above analysis, we decline to apply the analytical approach outlined in Wolfe. In the Wolfe decision, the Ohio Supreme Court applied R.C. 3937.31(A) to determine when a "new" automobile insurance policy was issued in order to ascertain the version of the statutory law that applied to the policy. R.C. 3937.31(A) states that "[e]very automobile insurance policy shall be issued for a period of not less than two years." Thus, the court concluded that, in order to determine when a "new" automobile insurance policy is issued, the initial issuance date of the policy must be ascertained and successive two-year periods must be added to that date to reach the last guaranteed policy period. Whatever statutory law was in effect at the beginning of the last guaranteed policy period is the applicable law. {¶ 26} As we recently explained in Dixon, supra, at ¶ 22-23, we decline to apply Wolfe to determine the policy period of insurance policies that are, in essence, homeowner's policies, not automobile policies. As we explained above, the determination of the appropriate statutory law hinges upon the date a "new" or renewal policy was enacted. When conducting the initial analysis of a policy to determine when a "new" or renewal contract was entered into by the parties, we deem it inappropriate to unilaterally presume all policies are ultimately automobile policies with policy periods dictated by R.C. 3937.31(A) and Wolfe. Rather, if, as here, the policy is on its face a homeowner's policy, the analysis of when a "new" or renewal contract was entered into must be conducted pursuant to general principles of contract interpretation. {¶ 27} Applying these general principles, we conclude that the parties' August 11, 1998 renewal policy is a "new" contract. The declaration page attached to the homeowner's policy specifies that the policy is a "renewal," with a policy period from August 11, 1998 to August 11, 2001. Further, the policy specifies in "Section I and Section II — Conditions," that "[w]e may elect not to renew this policy." These provisions indicate an intent that the homeowner's policy be renewed, not extended, upon option of the parties. Therefore, because the August 11, 1998 policy is a "new" contract, it incorporates the statutory law as it existed on August 11, 1998. {¶ 28} As we have determined the applicable statutory law, we can now address the issue at the heart of appellant's argument: whether the homeowner's policy is a motor vehicle liability insurance policy for the purpose of imposing uninsured and underinsured motorist coverage. Effective September 3, 1997, H.B. No. 261 amended R.C. 3937.18 to add subsection (L), which defines an "automobile liability or motor vehicle liability policy of insurance" for purposes of the uninsured and underinsured motorist coverage statute. As this statutory definition was incorporated into the August 1998 homeowner's policy, we must apply it to the policy language to determine whether appellant is entitled to uninsured or underinsured motorist coverage. Consequently, appellant's reliance upon such cases as Lemm v. The Hartford (Oct. 4, 2001), Franklin App. No. 01AP-251, Selander v. Erie Ins. Group (1999), 85 Ohio St.3d 541, and Davidson v. Motorists Mut. Ins. Co. (2001), 91 Ohio St.3d 262, is misplaced, as H.B. No. 261 superseded this case law. See Uzhca v. Derham, Montgomery App. No. 19106, 2002-Ohio-1814, at ¶ 57; Burkholder v. German Mut. Ins. Co., Lucas App. No. L-01-1413, 2002-Ohio-1184, at ¶ 14; Pickett v. Ohio Farmers Ins. Co., Stark App. No. 2001CA00227, 2002-Ohio-259. Although Lemm also involved a homeowner's policy, it did not involve an assessment of whether a homeowner's policy could qualify as an automobile liability policy under the statutory law enacted by H.B. No. 261. Therefore, the issue before the court in Lemm was different from that which confronts this court in the case sub judice. {¶ 29} Pursuant to the version of R.C. 3937.18 enacted by H.B. No. 261, "automobile liability or motor vehicle liability policy of insurance" was defined as: {¶ 30} "(1) Any policy of insurance that serves as proof of financial responsibility, as proof of financial responsibility is defined by division (K) of Section 4509.01, for owners or operators of the motor vehicles specifically identified in the policy of insurance; {¶ 31} "(2) Any umbrella liability policy of insurance." {¶ 32} Appellant does not argue that the homeowner's policy is an umbrella liability policy of insurance, but she does argue that the homeowner's policy could serve as proof of financial responsibility. To support her argument, appellant relies upon the following policy language: {¶ 33} "1. Coverage E — Bodily Injury, Personal Injury and Property Damage Liability and Coverage F — Medical Payments to Others do not apply to bodily injury, personal injury, or property damage: {¶ 34} "* * * {¶ 35} "f. arising out of: {¶ 36} "(1) the ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an insured; {¶ 37} "* * * {¶ 38} "Exclusions e., f., g., and h. do not apply to bodily injury and personal injury to a residence employee arising out of and in the course of the residence employee's employment by an insured." Appellant argues that the homeowner's policy can serve as "proof of financial responsibility" because the "residence employee" exception provides certain, limited liability coverage. Appellant also argues that policy "specifically identifies" the effected motor vehicles as those "owned or operated by or rented or loaned to an insured." Therefore, appellant concludes that the homeowner's policy is an "automobile liability or motor vehicle liability policy of insurance" as defined in R.C. 3937.18(L)(1). We disagree with appellant's argument. {¶ 39} First, the August 1998 policy cannot serve as "proof of financial responsibility." Pursuant to R.C. 4509.01(K), "proof of financial responsibility" is defined as: {¶ 40} "* * * [P]roof of ability to respond in damages for liability, on account of accidents occurring subsequent to the effective date of such proof, arising out of the ownership, maintenance, or use of a motor vehicle in the amount of twelve thousand five hundred dollars because of bodily injury to or death of one person in any one accident, in the amount of twenty-five thousand dollars because of bodily injury to or death of two or more persons in any one accident, and in the amount of seven thousand five hundred dollars because of injury to property of others in any one accident." {¶ 41} Here, the minimal coverage offered under the homeowner's policy does not rise to the level of "proof of financial responsibility" because it is extended to only one person — appellant's "residence employee." Thus, the policy fails to provide any liability coverage if "two or more persons" are injured or die in an accident, much less coverage for the two or more persons in the amount of $25,000. Further, the policy fails to provide any liability coverage for property damage from any motor vehicle accident, whether or not a "residence employee" is involved. {¶ 42} Moreover, the homeowner's policy fails to fulfill the purpose for which "proof of financial responsibility" is required in the first place. Instead of "minimiz[ing] those situations in which persons are not compensated for injuries and damages sustained in motor vehicle accidents," reliance on a homeowner's policy with a "residence employee" exception as "proof of financial responsibility" would only provide coverage to a select group of persons and little or no coverage for damages resulting from vehicular accidents. R.C. 4509.101(J). Therefore, the homeowner's policy cannot serve as "proof of financial responsibility." {¶ 43} Second, the homeowner's policy is not an "automobile liability or motor vehicle liability policy of insurance" because neither the declarations page nor the policy itself "specifically identifies" any motor vehicles. In order to be "specifically identified," the motor vehicles referred to in the policy "must be precisely, particularly and individually identified." Burkholder, supra, at ¶ 21. However, the policy at issue here identifies the effected motor vehicles only as those "owned or operated by or rented or loaned to an insured." As we recently held in our decision in Dixon, such a general description does not satisfy the requirement of R.C. 3937.18(L)(1) that the motor vehicles be "specifically identified." Dixon, supra, at ¶ 33. See, also, Lane v. State Auto Ins. Cos., Miami App. No. 2001-CA-59, 2002-Ohio-2698, at ¶ 9-13 (similarly worded "residence employee" exception in a homeowner's policy did not provide the degree of identification necessary for the court to determine the motor vehicles were "specifically identified"); Burkholder, supra, at ¶ 21 (same); Jones v. Nationwide Ins. Co. (July 23, 2001), Stark App. No. 2000CA00329 (same). Further, as we noted in our decision in Dixon, supra, at ¶ 34, we are not guided in our analysis of this question by the dicta in Davis v. State Farm Fire Cas. Co. (Dec. 18, 2001), Franklin App. No. 00AP-1458, in which we suggested that R.C. 3937.18(L)(1) did not require the makes, models and serial numbers of motor vehicles. {¶ 44} Because the homeowner's policy is not an "automobile liability or motor vehicle liability policy of insurance" as defined in R.C. 3937.18(L), appellee was not required to offer uninsured or underinsured motorist coverage as part of the policy and such coverage does not arise by operation of law. Therefore, appellant is not entitled to recover for damages due to her husband's alleged wrongful death under her homeowner's policy. {¶ 45} For the foregoing reasons, we overrule appellant's assignment of error and affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. BOWMAN, J., concurs. TYACK, P.J., concurs separately in part and dissents in part.

2016-07-06 06:41:56.561303+00

JOURNAL ENTRY AND OPINION {¶ 1} Plaintiff-appellant, State of Ohio ("State"), appeals from a judgment of the Common Pleas Court granting the motion to suppress of defendant-appellee, Melvin Lomax ("defendant"). Defendant was indicted for one count of possession of drugs in violation of R.C. 2925.11, one count of drug trafficking in violation of R.C. 2925.03, and one count of possession of criminal tools in violation of R.C. 2923.24. After careful review of the record, we affirm the judgment of the trial court. {¶ 2} The record presented to us on appeal reveals the following: On July 20, 2004, officers from the Cleveland Police Department responded to a telephone call at 4200/4204 East 188th Street in Cleveland, Ohio regarding a dispute between defendant and Mrs. Virginia Davis ("Mrs. Davis") about the ownership, possession, and/or control over the property located at 4204 East 188th Street. 4204 East 188th Street is an empty lot except for a garage. Mrs. Davis alleged that she owned the property and was renting the space to defendant. Defendant, in turn, claimed the property belonged to his mother. The officers could not determine who actually owned the property and advised the two individuals to resolve the matter through a civil court. {¶ 3} As the officers were leaving the property, Mrs. Davis suddenly threw a bag of marijuana at the officers and told them that defendant was keeping marijuana in the garage. The officers approached the garage and noticed a strong smell of marijuana emanating from inside. Officer Dawson entered the garage and observed several bags of marijuana in plain view. Defendant was placed in the patrol car until police backup arrived. {¶ 4} Shortly thereafter, Detective Raspberry of the Cleveland Police Department arrived and searched the defendant and his car. A bag of marijuana was found on defendant's person and two bags of marijuana were found in his car. All1 of the marijuana was confiscated and later tested by the Cleveland Police Department Scientific Investigation Unit. Defendant was placed under arrest and he was ultimately charged with one count of possession of drugs, one count of drug trafficking, and one count of possession of criminal tools. {¶ 5} On September 20, 2004, defendant filed a motion to suppress the marijuana found in the garage, his vehicle, and his person, arguing lack of probable cause and failure to obtain a search warrant. {¶ 6} A suppression hearing was held on June 23, 2005. The State failed to provide a copy of the transcript of this hearing. {¶ 7} On June 24, 2005, the trial court granted defendant's motion to suppress, finding that the police were not presented with exigent circumstances that justified their searching the garage without a search warrant and that they could not have relied on Mrs. Davis's implicit consent to enter the garage because it was not apparent that she had the authority to consent to a search of the garage. The matter is now before this Court on the State's appeal from that entry. Defendant's sole assignment of error states: {¶ 8} "I. The standard for determining a warrantless search is whether there exists a valid exception. One exception is the `plain smell' doctrine coupled with exigent circumstances. The trial court erred in finding that officers required more than the probable cause of the overwhelming smell of unburned marijuana because the objective inability to determine the owner of the garage, the possessor of its contents and the identity and nature of the contraband therein gave rise to exigent circumstances." {¶ 9} In this assignment of error, the State claims that the trial court erred in granting the defendant's motion to suppress for a number of reasons. First, the State argues that the police had probable cause to believe there was marijuana in the garage, since Mrs. Davis reported that marijuana was present and they could smell it. Next, the State argues that the police were confronted with exigent circumstances that justified a warrantless search. Specifically, the premises were not secured and someone could have removed or destroyed the marijuana. Defendant concedes that the officers had probable cause to believe that marijuana was in the garage but maintains that there were no exigent circumstances justifying a warrantless search of the garage. The issue here concerns whether the officers were required to obtain a search warrant prior to entering the garage. {¶ 10} In a suppression hearing, the evaluation of the evidence and the credibility of witnesses are issues for the trier of fact. State v. Mills (1992), 62 Ohio St.3d 357; Statev. Bryson (2001), 142 Ohio App.3d 397, 401; City of Clevelandv. Rees (June 24, 1999), Cuyahoga App. No. 74306; State v.McCulley, (April 28, 1994), Cuyahoga App. No. 64470. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the credibility of witnesses and resolve questions of fact. State v.Klein (1991), 73 Ohio App.3d 486. {¶ 11} Appellate courts should give great deference to the judgment of the trier of fact. Ornelas v. United States (1996),517 U.S. 690; State v. George (1989), 45 Ohio St.3d 325. Accordingly, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence.Klein, supra; State v. Armstrong (1995), 103 Ohio App.3d 416,420; State v. Williams (1993), 86 Ohio App.3d 37, 41. However, the reviewing court must independently determine as a matter of law, without deference to the trial court's conclusion, whether the trial court's decision meets the appropriate legal standard.State v. Claytor (1993), 85 Ohio App.3d 623, 627. {¶ 12} The Fourth Amendment to the United States Constitution prohibits warrantless searches and seizures, rendering them per se unreasonable unless an exception applies. Katz v.United States (1967), 389 U.S. 347. If a search or seizure is found to be unreasonable, the evidence derived from the unreasonable search or seizure is subject to exclusion. Mapp v. Ohio (1961),367 U.S. 643, 81 S.Ct. 1684. {¶ 13} In considering the facts of this case, we note that the State failed to provide this Court with a transcript of the proceedings at the suppression hearing. When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and must presume the validity of the lower court's proceedings and affirm. Knapp, supra at 197. Accordingly, we must accept the facts as found by the trial court. State v.Gardner (1993), 88 Ohio App.3d 354, 357. {¶ 14} Since the defendant concedes that the officers had probable cause to believe that marijuana was present in the garage, we are left to consider whether the trial court erred when it found that no exception to the warrant requirement was applicable to these circumstances. {¶ 15} As previously stated, the trier of fact, here, the trial court, is in the best position to resolve questions of fact and evaluate the witness credibility. Ibid. Here, the trial court found that, at the time the police entered the garage, there was "obviously no one in there." Accordingly, the trial court concluded that the police were not presented with exigent circumstances that justified their searching the garage without a search warrant. We agree. {¶ 16} Under the exigent circumstances exception, there must be "compelling reasons" or "exceptional circumstances" to justify a warrantless search. Alliance v. Barbee (March 5, 2001), Stark App. No. 2000CA00218, citing State v. Moore (2000),90 Ohio St.3d 47, 52. A warrantless search is justified if there is "imminent danger that evidence will be lost or destroyed if a search is not immediately conducted." Id. {¶ 17} Here, there is no indication that any of the marijuana was being destroyed or even in danger of being destroyed. The officers could see defendant. There was also no indication that anyone else was in the garage. There is no reason, under the factual situation as found by the trial court, that the two officers could not have secured the area and obtained a search warrant to search the garage at a later time. The facts as determined by the trial court do not demonstrate any pending danger of injury to anyone, or imminent danger of the destruction of evidence or evidence of flight. Alliance v. Barbee, supra at 13. The facts of this case simply do not justify the warrantless intrusion into the garage pursuant to the exigent circumstances exception. It follows then that the officers had no reason to question defendant, and the search of his vehicle, a search that resulted in the confiscation of the additional marijuana, stemmed from an initial violation of his Fourth Amendment rights. Because this finding is supported by competent and credible evidence in the record and the trial court properly applied this finding to the applicable legal standard, we find that the trial court did not err in granting the defendant's motion to suppress. {¶ 18} The State's sole assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant his 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 Court of Common Pleas 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. Diane Karpinski, J., and Michael J. Corrigan, J., concur. 1 In total, 8,114.37 grams of marijuana were found.

2016-07-06 06:41:56.650415+00

JOURNAL ENTRY AND OPINION {¶ 1} Appellant Eric Smith appeals his murder conviction and assigns the following errors for our review: "I. Whether the trial court erred in allowing evidence of the appellant's post arrest statements to be considered as evidence in violation of Miranda v. Arizona, 384 U.S. 436 (1966)." "II. Whether the appellant was deprived of effective assistance of counsel at trial." {¶ 2} Having reviewed the record and pertinent law, we affirm Smith's conviction. The apposite facts follow. {¶ 3} On September 21, 2006, the Cuyahoga County Grand Jury indicted Smith on one count of aggravated murder with firearm specification attached. Smith pleaded not guilty at his arraignment and a series of pre-trials followed. On August 14, 2007, a jury trial commenced. Jury Trial {¶ 4} At trial, the evidence presented, through fourteen witnesses, established that at approximately 2:00 a.m. on August 25, 2006, the victim, Johnny Greene, drove his truck to the area of East 126th and Forest Avenue in the City of Cleveland, Ohio. At that time, Parisha Dickerson, Yusef Collier and Latasha Amison, Greene's former high school classmates, were gathered on the porch of an apartment building located at 12558 Forest Avenue. Greene parked his truck, exited and began socializing with his friends. *Page 4 {¶ 5} Parisha Dickerson testified that after the group had been talking for a few minutes, she observed Smith and another male approaching the scene on foot. Smith walked past the group without speaking, but returned and stated to Greene: "You didn't have to do that to my sister's car, we can settle this."1 Dickerson testified that Greene started to walk towards his car, but Smith ordered him to stop. {¶ 6} According to Dickerson, Greene stopped, turned around and tried to diffuse the situation. Greene stated that the two men could talk about the situation, but Smith pulled a gun from his right pocket and began shooting. Smith shot Greene twice, Greene tried to run, but fell near the corner of East 126th Street. {¶ 7} Dickerson and the others ran into the apartment building, where she observed Greene lying on the ground with Smith standing over him. Smith stated: "What are you going to do now? What are you going to do now?"2 Dickerson testified that Smith then proceeded to shoot Greene four more times. {¶ 8} When the police responded to the scene, Dickerson informed them that she had witnessed the shooting and that she knew the shooter's identity. Dickerson recognized Smith from seeing him around the neighborhood and that everybody referred to Smith as "E." *Page 5 {¶ 9} Dickerson's brother, Yusef Collier, and, his girlfriend, Latasha Amison, testified that they witnessed the shooting. They recognized Smith from the neighborhood and stated that Smith was wearing a white t-shirt and blue jeans at the time of the shooting. {¶ 10} Chanel Jernigan lived in the same apartment building with Dickerson, Collier and Amison. Jernigan had never met Greene, but saw Smith several times each day because his cousin lived next door to her. Jernigan was awakened after midnight by the sound of gunshots. She went out onto her porch from where she observed Smith shoot Greene. {¶ 11} Detective Joseph Chojnowski, a thirty-year veteran with the Cleveland Police Department, was the lead investigator of the case. He testified that Smith was taken into custody on September 5, 2006. {¶ 12} On September 8, 2006, Detective Chojnowski met with Smith. Detective Chojnowski asked Smith if he knew why he had been arrested, but before he could answer, he Mirandized Smith. After Detective Chojnowski read Smith the Miranda rights, Smith almost laughingly replied that he was in custody on a "bullshit robbery charge or it might be for riding a bicycle illegally."3 Smith's entire demeanor changed when Detective Chojnowski informed him that he was in custody for the shooting death of Greene. Smith became very quiet, stared at the ground and *Page 6 indicated that he needed to talk with his mother to determine whether he needed an attorney. {¶ 13} The police recovered nine shell casings from the scene. The county coroner established that Greene suffered nine bullet wounds, with two fatally piercing his heart. {¶ 14} At the close of the State's evidence, Smith argued and filed a motion for acquittal on the grounds that there was no physical evidence linking him to the crime. In addition, Smith argued that there was no evidence presented of prior calculation or design. The trial court granted Smith's motion as to prior calculation and design, thereby reducing the charge to murder. {¶ 15} On August 17, 2007, the jury found Smith guilty of murder with the attached firearm specification. On September 7, 2007, the trial court sentenced Smith to a prison term of fifteen years to life for the murder charge to be served consecutively to the three-year firearm specification. The trial court also sentenced Smith a prison term of seven years on an unrelated robbery charge, to be served concurrently with the murder sentence. Miranda Warning *Page 7 {¶ 16} In the first assigned error, Smith argues the trial court erred, in violation of Miranda v. Arizona, 4 by allowing testimony of his post-arrest statements to be entered into evidence. We disagree. {¶ 17} The failure to file a pretrial motion to suppress evidence pursuant to Crim. R. 12(B)(3) precludes a challenge to its admission at trial.5 In this regard, Crim. R. 12(G) provides that: "Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (C), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for good cause shown may grant relief from the waiver." {¶ 18} A motion to suppress is the proper vehicle for raising challenges to exclude evidence that is the product of police conduct that results in a constitutional violation.6 A failure to timely file a motion to suppress evidence amounts to a waiver of any such issues for purposes of trial.7 {¶ 19} Here, Smith did not file a motion to suppress the evidence he now alleges violated Miranda. Inasmuch as this evidence was not the subject of a timely *Page 8 motion to suppress, any error regarding its admissibility has been waived.8 Accordingly, we overrule the first assigned error. Ineffective Assistance of Counsel {¶ 20} In the second assigned error, Smith argues that he was denied the effective assistance of counsel due to defense counsel's failure to file a motion to suppress his post-arrest statements to Detective Chojnowski. We disagree. {¶ 21} We review a claim of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington.9 UnderStrickland, a reviewing court will not deem counsel's performance ineffective unless a defendant can show his lawyer's performance fell below an objective standard of reasonable representation and that prejudice arose from the lawyer's deficient performance.10 To show prejudice, a defendant must prove that, but for his lawyer's errors, a reasonable probability exists that the result of the proceedings would have been different.11 Judicial scrutiny of a lawyer's performance must be highly deferential.12 *Page 9 {¶ 22} Trial counsel's failure to file a suppression motion does not per se constitute ineffective assistance of counsel.13 Counsel can only be found ineffective for failing to file a motion to suppress if, based on the record, the motion would have been granted.14 Furthermore, where the record contains no evidence which would justify the filing of a motion to suppress, the appellant has not met his burden of proving that his attorney violated an essential duty by failing to file the motion.15 {¶ 23} Therefore, we will review the record to determine whether Smith's statements were unlawfully obtained to determine if a motion to suppress would have been meritorious. In State v. Treesh, 16 the Supreme Court of Ohio stated: "It is well established that a defendant who is subjected to custodial interrogation must be advised of his or her Miranda rights and make a knowing and intelligent waiver of those rights before statements obtained during the interrogation will be admissible***." {¶ 24} When Detective Chojnowski met with Smith, he asked Smith if he knew why he was in custody, but before Smith could answer the question he read him the Miranda rights. However, after Smith was read his Miranda rights, he laughingly *Page 10 replied that he was there for some "bullshit robbery charge or it might be for riding a bicycle illegally." Detective Chojnowski stated that after he told Smith that he was there for the shooting death of Greene, Smith's demeanor changed. {¶ 25} Detective Chojnowski testified about the remainder of the meeting as follows: "Q. What did he say? A. He says I want to talk to my mom. Q. And did you respond to that? A. I asked him if he wants an attorney. Q. Did he respond to that at that point? A. Yes, he did. Q. What did he say? A. He says I want to talk to my mom. She'll tell me whether I need an attorney. Q. Did you respond to that comment? A. Yes, I did. Q. What did you say? A. I asked him if he wants an attorney. Q. Basically did the conversation end then at that point? A. Yes, it did, sir."17 *Page 11 {¶ 26} A review of the above excerpt, reveals that Smith was properly Mirandized. Smith gave a non-incriminating response to the detective's only question. Further, after Detective Chojnowski explained the true reason for Smith's custody, he immediately invoked his right to counsel, which implies that Smith understood his rights. Finally, the excerpt indicates that the questioning ended upon Smith's invoking his right to counsel. {¶ 27} Nonetheless, Smith contends that he was prejudiced by Detective Chojnowski's testimony about his changed demeanor after being informed that he was in custody for the shooting death of Greene. We are not persuaded. {¶ 28} Smith's changed demeanor is not a conclusive indication of guilt, but could be inferred as an acknowledgment that the situation was more serious than Smith originally thought. Morever, at trial, four eyewitness testified about the shooting. Dickerson, Collier, and Amison all testified to the unfolding events which led to Greene's death. The fourth eyewitness, Jernigan, testified that she observed Smith shooting Greene. {¶ 29} All four witnesses were familiar with Smith by virtue of seeing him around the neighborhood. Jernigan testified that she saw Smith approximately three or four times per day, when Smith came to visit his cousin, who lived in the adjacent apartment. *Page 12 {¶ 30} We conclude, given the evidence presented by the four eyewitnesses, that Smith was not prejudiced by Detective Chojnowski's testimony about Smith's changed demeanor. We also conclude that defense counsel's decision not to file a motion to suppress Smith's post-arrest statement could be viewed as trial strategy. {¶ 31} Actions of defense counsel which might be considered sound trial strategy are to be presumed effective.18 A reviewing court will not second-guess trial strategy decisions.19 Here, trial counsel might have concluded, given the forthcoming evidence of the four eyewitnesses, that filing a motion to suppress would have been futile. As such, we conclude that defense counsel was not ineffective in choosing not to file a motion to suppress Smith's post-arrest statements. Accordingly, we overrule the second assigned error. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. It is ordered that a special mandate be sent to said 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. *Page 13 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KENNETH A. ROCCO, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR. 1 Tr. 441. 2 Tr. 447. 3 Tr. 672-673. 4 (1966), 384 U.S. 436. 5 State v. Lapso, 5th Dist. No. 2007-COA-045,2008-Ohio-4489. 6 State v. French, 72 Ohio St.3d 446, 1995-Ohio-32. 7 State v. Montgomery, 5th Dist. No. 2007 CA 95,2008-Ohio-6077, citing State v. Wade (1973), 53 Ohio St.2d 182. 8 State v. Duncan, Cuyahoga App. No. 84587, 2005-Ohio-6241. 9 (1984), 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052. 10 State v. Bradley (1989), 42 Ohio St.3d 136, paragraph one of syllabus. 11 Id. at paragraph two of syllabus. 12 State v. Sallie (1998), 81 Ohio St.3d 673, 674. 13 State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448. 14 State v. Lavelle, 5th Dist. No. 07 CA 130,2008-Ohio-3119. 15 State v. Drummond (2006), 111 Ohio St.3d 14, 41, 2006-Ohio-5084, citing State v. Gibson (1980), 69 Ohio App.2d 91, 95. 16 90 Ohio St.3d 460, 2001-Ohio-4. 17 Tr. 673-674. 18 State v. Rodgers, 6th Dist. No. L-02-1089,2004-Ohio-3795, citing Strickland, supra, at 687. 19 State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, citingState v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971. *Page 1

2016-07-06 06:41:56.680962+00

DECISION {¶ 1} Appellant, Darlene Bond, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, that denied her four motions seeking, respectively, (1) modification of parental rights, (2) emergency reallocation of parental rights or, in the alternative, an established parenting time, (3) interview with K.X., the child subject of these proceedings, and (4) an order precluding the testimony of Rhonda Lilley, a mental health professional. Because the trial court did not err in adopting the magistrate's decision, and because the lack of objections, with an accompanying transcript, to the magistrate's decision precludes further review, we affirm. {¶ 2} The present litigation presents a lengthy history. On October 30, 1995, Anthony Jackson filed a complaint seeking custody or, alternatively, visitation with K.X. The parties ultimately adopted a joint shared parenting plan that was implemented by a decree in the trial court on January 29, 1998. Shortly thereafter, Jackson filed a motion seeking to hold appellant in contempt, contending appellant failed to abide by the prior order of the court. An agreed modification of the parties' shared parenting plan alleviated litigation until March 14, 2002. {¶ 3} On that date, Jackson filed a motion for reallocation of parental rights, seeking to terminate the parties' shared parenting decree and to designate Jackson the residential parent and legal custodian of K.X. The magistrate's decision notes that appellant was properly served but failed to appear. Hearing Jackson's evidence, the magistrate granted the motion, terminated the shared parenting decree, designated Jackson the residential parent and legal custodian, and ordered appellant to pay child support. The trial court adopted the magistrate's decision on April 2, 2002. Appellant did not appeal the trial court's judgment. {¶ 4} Instead, on November 15, 2002, appellant filed a motion to set aside the judgment entry of April 2, 2002. On March 24, 2003, the trial court issued a decision and judgment entry denying appellant's motion. Specifically, the trial court addressed appellant's contention that she was not properly served with notice of the hearing on Jackson's March 14, 2002 motion for reallocation of parental rights. Concluding that appellant was properly served, the trial court denied the motion. Appellant did not appeal that judgment. {¶ 5} Beginning November 15, 2002 and continuing through August 21, 2003, appellant filed four different motions in the trial court: (1) a November 15, 2002 motion to modify parental rights, (2) a November 15, 2002 motion for emergency reallocation of parental rights or, in the alternative, to establish parenting time, (3) a motion filed January 14, 2003 to interview K.X., and (4) an August 21, 2003 motion to preclude the testimony of Rhonda Lilley, a mental health professional. {¶ 6} A magistrate of the trial court conducted a hearing on appellant's motions. According to the magistrate's decision issued August 16, 2004, a record of the proceedings was made, procedural matters were handled on July 25, 2003 and August 26, 2003, and testimony began on November 12, 2003 when appellant decided to proceed without the benefit of counsel. Appellant's motion regarding Rhonda Lilley was rendered moot by the parties submitting her report as a joint stipulated exhibit. {¶ 7} After hearing the testimony of appellant, Jackson, and appellant's three witnesses, interviewing K.X., and viewing the exhibits, the magistrate concluded appellant's motion for reallocation of parental rights should be denied. The magistrate noted that the issue of missed parenting time could not serve as a change of circumstances, a necessary predicate to reallocation of parental rights, as the issue was known to the trial court at the time of the prior order. Similarly, the magistrate determined appellant's testimony that K.X. did not appear as happy as he once seemed was insufficient to demonstrate a change of circumstances, especially when adjustments for K.X. were to be expected as a result of the change of custody ordered on April 2, 2002. Nonetheless, the magistrate noted the loving relationship between K.X. and his mother, determined appellant's motion for parenting time should be granted, and decided visitation should be exercised pursuant to Loc.R. 22. {¶ 8} The court adopted the magistrate's decision on August 17, 2004. Appellant fails to assign specific errors, but sets forth issues as follows: Did the local domestic court err in determining the existence of a valid Shared Parenting Plan? Did the local domestic court err in holding a hearing to reallocate parental rights and responsibilities without the Appellant's knowledge or participation? Did the local domestic court err in determining the Best Interest of Child by reallocating parental rights and responsibilities to Appellee? Did the local domestic court err in basing its decision on proven perjured testimony given by Appellee? Did the local domestic court err in denying the Appellant due process? {¶ 9} Appellant's issues, taken for purposes of appeal as assignments of error, relate in large part to matters which have been adjudicated and not appealed. Specifically, the shared parenting plan and the reallocation of parental rights raised in appellant's first, second, and third issues were adjudicated in the trial court's April 2, 2002 judgment entry. Appellant failed to appeal that judgment within 30 days, and this court lacks jurisdiction to consider an appeal of those issues at this time. See App.R. 4(A); State ex rel. Boardwalk Shopping Center, Inc. v.Court of Appeals for Cuyahoga Cty. (1990), 56 Ohio St.3d 33, 36;Americare Corp. v. Misenko (1984), 10 Ohio St.3d 132, 135. {¶ 10} Similarly, at least some of appellant's issues appear to address the trial court's May 24, 2003 judgment entry denying her motion to set aside the April 2, 2002 judgment entry. Again, because the May 24, 2003 judgment entry was not appealed within the 30 days prescribed in App.R. 4(A), this court lacks jurisdiction to consider those issues. {¶ 11} Appellant's appeal also raises a due process issue, apparently arising out of her contention that she was not properly served in connection with the hearing on Jackson's motion for reallocation of parental rights. In the abstract, that issue possibly could survive her failure to appeal the trial court's April 2, 2002 judgment: the failure to be properly served creates the potential for a void judgment. On the specific facts before us, however, appellant's argument fails, as she presented that argument to the trial court in her motion to set aside the April 2, 2002 judgment entry. The trial court specifically addressed the issue and, in its May 24, 2003 judgment entry, found that appellant was properly served. Because appellant did not appeal that determination, the matter has been finally determined adversely to her. To the extent appellant attempts to appeal the trial court's determination that she was properly served, her appeal is untimely, leaving this court without jurisdiction to consider the issue. {¶ 12} The net result of appellant's failure to timely appeal the trial court's prior judgments is that only the trial court's August 17, 2004 judgment entry regarding appellant's four noted motions is before this court on appeal. Appellant's ability to contest the court's August 17, 2004 determinations is limited. Specifically, both Juv.R. 40(E)(3)(d) and Civ.R. 53(E)(3)(d) provide that appellant "shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law" unless the party timely and specifically objects to that finding or conclusion as required by Juv.R. 40(E)(3) and Civ.R. 53(E)(3), respectively. Contrary to the specific mandate of those rules, appellant failed to object to the magistrate's decision. {¶ 13} Appellant's failure to object has other procedural ramifications: because she did not object to the magistrate's decision, she also did not file a transcript of the proceedings before the magistrate with the trial court. While appellant supplemented the record on appeal with that transcript, we are precluded from considering it when the trial court did not have the opportunity to review it before determining whether to adopt the magistrate's decision. State ex rel.Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728 (stating that when a party fails to file a transcript of the proceedings before the magistrate with the trial court, the appellate court is "precluded from considering the transcript of the hearing submitted with the appellate record"). Moreover, because we cannot review the transcript of the hearing before the magistrate, we are unable to determine whether appellant is correct in asserting that the magistrate's decision is contrary to the evidence. See Knapp v. Edwards Laboratories (1980),61 Ohio St.2d 197; Ratchford v. Proprietors' Ins. Co. (1995),103 Ohio App.3d 192; Kowalik v. Kowalik (1997), 118 Ohio App.3d 141,144-145. {¶ 14} Appellant's failure to file objections to the magistrate's decision waived the errors she alleges are inherent in the decision. As a result of her failure to file objections, the trial court only was required to review the decision to determine whether an error of law or other defect existed on the face of the magistrate's decision. See Juv.R. 40(E)(4)(a); Civ.R. 53(E)(4)(a). Like the trial court, we find no error of law or other defect on the face of the magistrate's decision. The magistrate determined the evidence failed to support a change of circumstances, and without a transcript, we are unable to conclude to the contrary. {¶ 15} For the foregoing reasons, appellant's issues, taken as assignments of error, are overruled, and the judgment of the trial court is affirmed. Judgment affirmed. French and McGrath, JJ., concur.

2016-07-06 06:41:57.974081+00

OPINION Defendant-appellant Beth Starcher appeals the December 30, 1998 Judgment Entry of the Stark County Court of Common Pleas, Family Court Division, overruling her objections to the Magistrate's May 1, 1998 Decision. Plaintiff-appellee is Dwight Nicholson. STATEMENT OF THE FACTS AND CASE On December 4, 1997, appellee filed a Verified Motion to Establish Parental Rights and Responsibilities relative to the minor child, Joshua Allen Starcher (DOB 5/17/91), after the Stark County Child Support Enforcement Agency determined appellee to be the father of Joshua. Magistrate Constance Butera conducted a hearing on the motion on January 13, 1998. Via Magistrate's Order/Decision dated the same day, the magistrate found appellee to be Joshua's father, ordered visitation between appellee and the child, and ordered appellee to pay child support in the amount of $299.94 per month plus poundage. Neither party filed objections to the Magistrate's Order/Decision, which the trial court approved and adopted on January 19, 1998. On February 3, 1998, appellant, through new counsel, filed a Motion for Child Support Arrearages; Motion to Modify Child Support; Motion to Modify Companionship; and Request for Production of Documents. Magistrate David Nist conducted a hearing on the motions on April 14, 1998, during which he reviewed the tape-recording of the January 13, 1998 proceedings at the request of counsel for both appellee and appellant. In his Findings of Fact, Magistrate Nist noted appellant's first attorney made the following statement to Magistrate Butera: [Appellee] * * * had paid all of last year $800.00 for child support. So child support would be in order. We really can't ask court to go back to the date of birth of this child even though Joshua has always been supported by [appellant] and her alone. We have no problem with this Court's standard order of visitation but we feel that the child support should go back to the year of 1996 and give him [appellee] credit with what he has paid in 1996. We can't ask him to go beyond that date. She obviously was married to someone else and that other person's hospitalization paid for the delivery of this child * * * Taking child support back to First (1st) of the 96 instead of back to 95 would be fine and that would be equitable. (Emphasis in original). Via Decision filed May 1, 1998, Magistrate Nist found appellant waived her claim for child support arrearages and denied appellant's request for the same. Appellant filed timely objections to the Magistrate's Decision. Appellant did not provide the trial court with a transcript of the proceedings before Magistrate Nist or an affidavit of the evidence submitted at that hearing. After conducting a hearing on appellant's objections on July 16, 1998, the trial court found appellant's motion for arrearages was barred by the doctrine of res judicata because appellant neither objected to Magistrate Butera's Order/Decision relative to the issue of child support nor objected to Magistrate Nist's findings relative to the content of the record of the January 13, 1998 hearing. The trial court approved and adopted Magistrate Nist's May 1, 1998 Decision as its judgment. The trial court memorialized its ruling in a Judgment Entry filed December 30, 1998. It is from this judgment entry appellant appeals, raising the following assignments of error: I. THE TRIAL COURT ERRED BY NOT SUSTAINING THE APPELLANT'S OBJECTION TO THE MAGISTRATE'S FINDING THAT APPELLANT HAD WAIVED HER CLAIM TO CHILD SUPPORT ARREARAGES FROM THE BIRTH OF THE MINOR CHILD. II. THE TRIAL COURT ERRED IN FINDING THE THE [SIC] APPELLANT'S MOTION FOR CHILD SUPPORT ARREARAGES WAS BARRED BY RES JUDICATA. I, II We shall address appellant's first and second assignments of error together. In her first assignment of error, appellant maintains the trial court erred in overruling her objection to Magistrate Nist's finding she waived her claim to child support arrearages. In her second assignment, appellant contends the trial court erred in finding her motion for child support arrearages filed February 3, 1998, was barred by the doctrine of res judicata. Civ.R. 53, in effect at the time Magistrate Nist issued his Decision, provided, in pertinent part: (E) (6) Factual findings. On appeal, a party may not assign as error the court's adoption of a referee's finding of fact unless an objection to that finding is contained in the party's written objections to the referee's report. The court may adopt any finding of fact in the referee's report without further consideration unless the party who objects to that finding supports that objection with a copy of all relevant portions of the transcript from the referee's hearing or an affidavit about evidence submitted to the referee if no transcript is available. * * * As stated supra, appellant failed to provide the trial court with a transcript or an affidavit of evidence in support of her objections to Magistrate Nist's Decision as required by Civ.R. 53(E) (6). A party cannot challenge on appeal the trial court's adoption of any of a magistrate's findings of fact unless the party submits to the trial court the required transcript or affidavit. See, Storrie v. Storrie (March 24, 1999), Tuscarawas App. No. 1998AP040082, unreported; Frank v. Frank (June 5, 1998), Morrow App. No. CA-855, unreported. Thus, appellant is precluded from challenging in the instant appeal the trial court's overruling her objection to Magistrate Nist's finding of fact she waived her claim for arrearages at the hearing before Magistrate Butera. Additionally, the record reveals appellant failed to request a transcript of the proceedings before Magistrate Nist pursuant to App. R. 9(B) or submit a statement of evidence pursuant to App. R. 9(C). When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower's court proceedings, and affirm. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. Because appellant failed to provide this Court with those portions of the transcript necessary for resolution of her first assignment of error, we must presume the regularity of the proceedings below and affirm pursuant to the directives set forth in Knapp. Accordingly, we find the trial court did not err in overruling appellant's objection to Magistrate Nist's finding she waived her claim to child support arrearages. Turning to appellant's second assignment of error, we agree with the trial court's determination the controlling theory of the case is the doctrine of res judicata. "The doctrine of res judicata involves both claim preclusion (historically called estoppel by judgment in Ohio) and issue preclusion (traditionally known as collateral estoppel)." Grava v. Parkman Township (1995), 73 Ohio St.3d 379, 381 (Citations omitted). A comprehensive definition of res judicata is as follows: A final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction * * * is a complete bar to any subsequent action on the same claim or cause of action between the parties or those in privy with them. Norwood v. McDonald (1943), 142 Ohio St. 299, paragraph one of the syllabus. Furthermore, "[i]t has long been the law of Ohio that `an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in the first lawsuit'." National Amusement, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62 (Citation omitted). (Emphasis added). Accordingly, "[t]he doctrine of res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it." Id. In the instant action, Magistrate Butera's January 13, 1998 Order/Decision does not address the issue of arrearages. However, because any issue as to past due amounts appellee owed toward the support of the minor child could have been litigated during Magistrate Butera's initial hearing and because appellant did not appeal the trial court's approval and adoption of Magistrate Butera's Order/Decision, we find the trial court did not err in finding appellant's Motion for Child Support Arrearages to be barred by the doctrine of res judicata. We further find appellant waived any error as to the issue by failing to object to said Order/Decision. Appellant's first and second assignments of error are overruled. The judgment entry of the Stark County Court of Common Pleas, Family Court Division, is affirmed. By: Hoffman, J. Wise, P.J. and Farmer, J. concur

2016-07-06 06:41:58.016936+00

DECISION AND JOURNAL ENTRY {¶ 1} Defendant, Mary Rowles, appeals from the decision of the Summit County Court of Common Pleas which sentenced her to an aggregate of thirty years imprisonment following a guilty plea. We affirm. {¶ 2} On May 23, 2003, the Summit County Grand Jury indicted Defendant and her co-defendant, Alice Jenkins, with five counts of kidnapping, in violation of R.C. 2905.01(A)(3), five counts of felonious assault, in violation of R.C. 2903.11(A)(1), six counts of endangering children, in violation of R.C. 2919.22(A), three counts of corrupting another with drugs, in violation of R.C. 2925.02(A)(4), one count of possession of marijuana, in violation of R.C. 2925.11(A), and five counts of permitting child abuse, in violation of R.C. 2903.15(A). Defendant pleaded guilty to all charges on October 30, 2003, and the court set the case for sentencing. {¶ 3} Following her guilty plea, Defendant discovered the existence of a medical condition which might provide some defense to the endangering children, felonious assault, and permitting child abuse charges. She moved for continuance of the sentencing hearing in order to conduct further investigation into the propriety of the defense, and the court granted that motion. Defendant then filed a motion to withdraw her guilty plea. The court heard the motion on December 23, 2003, but Defendant's anticipated expert refused to testify at the hearing. The court granted Defendant an additional seven days to locate an expert or other evidence to support her alleged defense. Defendant failed to do so. {¶ 4} The trial court denied Defendant's motion to withdraw her guilty plea on January 9, 2004. The court sentenced Defendant to an aggregate of thirty years imprisonment on the twenty-five charges. Defendant timely appealed, raising two assignments of error for our review. ASSIGNMENT OF ERROR I "The trial court erred when it denied [Defendant's] pre-sentencing motion to withdraw her guilty plea." {¶ 5} In her first assignment of error, Defendant argues that the trial court erred in denying her motion to withdraw her guilty plea. She asserts that the trial court should have freely granted her motion instead of "conduct[ing] a `mini-trial' in which the court applied its opinion regarding the feasibility of [Defendant's] defense." We disagree. {¶ 6} Crim.R. 32.1 permits a defendant to file a pre-sentence motion to withdraw her plea. A defendant, however, has no absolute right to withdraw her plea, State v. Xie (1992), 62 Ohio St.3d 521, paragraph one of the syllabus, and bears the burden of providing the trial court a reasonable and legitimate reason for withdrawing the plea. State v. VanDyke, 9th Dist. No. 02CA008204, 2003-Ohio-4788, t ¶ 10. While a trial court should freely and liberally grant a pre-sentence motion to withdraw a plea, the decision rests within the sound discretion of the trial court. Xie, 62 Ohio St.3d at 526. We review the trial court's denial of a motion to withdraw plea for an abuse of discretion. Id. An abuse of discretion implies more than a mere error of judgment, but instead demonstrates "perversity of will, passion, prejudice, partiality, or moral delinquency." Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619,621. {¶ 7} A trial court does not abuse its discretion in denying a motion to withdraw plea where three elements are met. State v. Robinson, 9th Dist. No. 21583, 2004-Ohio-963, at ¶ 30. First, the defendant must have been represented by competent counsel; second the court must provide the defendant a full Crim.R. 11 hearing prior to accepting the original guilty plea; and, finally, the court must provide a full hearing to the defendant, considering all the arguments in favor of withdrawal of his plea, before rendering a decision on the motion. Id. {¶ 8} Defendant does not challenge the first two elements, competent representation and provision of a full hearing prior to acceptance of her guilty plea. Instead, Defendant alleges that she presented a reasonable and legitimate basis for withdrawing her plea which the court did not fully and properly consider before rendering a decision on her motion to withdraw her plea: the defense of rumination.1 The record shows, however, that Defendant failed to present any evidence tending to show that the child victims in this case suffered from rumination. More than a month elapsed between the discovery of the possible defense and the hearing on Defendant's motion to withdraw her plea, yet, on the day of the hearing, she failed to offer any evidence supporting the defense. The expert witness she expected to testify refused to offer an opinion or remain involved in any way with the case. The court granted Defendant an additional week in which to offer some evidence showing that the children may have suffered from rumination. She failed to do so. Defendant, therefore, left the court with no evidence supporting her alleged defense. Given that Defendant offered not even a scintilla of evidence supporting her "reasonable and legitimate" reason to withdraw her plea, we cannot find that the trial court abused its discretion in denying that motion. The trial court held a full hearing on Defendant's motion to withdraw her plea — she simply failed to offer any evidence supporting it. {¶ 9} Defendant was represented by competent counsel, the court held a full Crim.R. 11 hearing prior to accepting Defendant's guilty plea, and the court granted Defendant a full hearing on her reasons for requesting withdrawal of her guilty plea, considering all of the evidence and arguments before it prior to issuing a decision. The trial court did not abuse its discretion. Accordingly, we overrule Defendant's first assignment of error. ASSIGNMENT OF ERROR II "The trial court erred in sentencing [Defendant] to more than the `statutory maximum' sentence." {¶ 10} In her second assignment of error, Defendant alleges that the trial court erred by sentencing her to more than the statutory maximum sentence in violation of Blakely v. Washington (2004), 124 S.Ct. 2531,159 L.Ed.2d 403. She contends that the trial court's sentence required factual findings on the part of the judge which violate herSixth Amendment right to a jury's determination of the facts. Based solely on the facts of the indictment, she asserts that the court could sentence her only to minimum, concurrent sentences on all counts. We disagree. {¶ 11} In Blakely, Ralph Howard Blakely, Jr., pleaded guilty to kidnapping his estranged wife and brandishing a gun during the kidnapping. Washington law dictated a presumptive sentencing range of 49-53 months based upon Blakely's plea. The Washington State trial court made a statutory finding that Blakely acted with "deliberate cruelty" and enhanced the sentence to 90 months. Eventually, Blakely's appeal reached the United States Supreme Court which reversed based on a compound error by the trial court. First, the Blakely court held that the trial court violated Blakely's Sixth Amendment right to a jury trial by making the factual finding of "deliberate cruelty." "`Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.'" (Emphasis added.) Blakely, 124 S.Ct. at 2536, quoting Apprendi v. New Jersey (2000), 530 U.S. 466, 490, 147 L.Ed.2d 435. The Blakely Court further found that the trial court increased Blakely's sentence beyond the statutory maximum based on this factual finding of "deliberate cruelty." "[T]he `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." (Emphasis and internal citations omitted.) Blakely, 124 S. Ct. at 2537. As the trial court could not impose a sentence greater than 53 months in the absence of the "deliberate cruelty" factual finding, the finding was critical and Blakely's sentence violated the Sixth Amendment of the United States Constitution. Id. {¶ 12} Under Ohio law, in order to impose a greater-than-minimum sentence on a first time offender a trial court must expressly find that "the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others." R.C. 2929.14(B)(2). Defendant, in the case at bar, asserts that this requisite finding equates to an improper finding of fact under Blakely, which violates her Sixth Amendment right to a jury trial. We disagree. {¶ 13} Foremost, the Washington State sentencing law and surrounding circumstances as considered in Blakely are distinguishable from those in the present case. Blakely is expressly inapplicable to indeterminate sentencing schemes. Blakely, 124 S.Ct. at 2540 (finding that indeterminate sentencing does not "infringe on the province of the jury" in violation of the Sixth Amendment). See, also, State v. Berry, 12th Dist. No. CA2003-02-053, 2004-Ohio-6027, at ¶ 38 ("[t]he majority in Blakely made it clear that their decision did not apply to states with indeterminate sentencing schemes"). {¶ 14} In addition, the determinate sentencing scheme in Washington is unlike Ohio's sentencing provisions. The Washington statutes at issue inBlakely set certain ceilings on sentencing based upon a defendant's proven conduct; Ohio law merely structures judicial discretion within an indeterminate sentencing scheme while permitting a judge to exercise discretion within that range. Berry at ¶ 40. Washington law permitted a sentence of between 49 and 53 months, based upon Blakely's conduct. The trial court found an additional factor which it used to enhance Blakely's sentence beyond the prescribed range to 90 months. In the present case, however, the trial court sentenced Defendant within the statutory range for each enumerated felony: less than ten years for a first degree felony, eight years for a second degree felony, and five years for a third degree felony. See R.C. 2929.14(A). Unlike the circumstances ofBlakely, the trial court did not sentence Defendant to a term of imprisonment beyond the statutory maximum. {¶ 15} Next, the Blakely decision must be read in light of precedent and traditional sentencing practice. Blakely specifically explained that the Sixth Amendment limits judicial power and discretion in sentencing only to the extent that such power "infringes on the province of the jury." Blakely, 124 S.Ct. at 2540. During sentencing, judges have traditionally considered uncharged circumstances to increase a defendant's punishment. Harris v. United States (2002), 536 U.S. 545, 562,153 L.Ed.2d 524. Sentencing determinations related to the unique facts of a crime or the impact of a sentence upon the protection of the public are decisions which have never been consigned to juries. Berry at ¶ 40, citing Griffin and Katz, Ohio Felony Sentencing Law, 482, Section 2.22. In fact, Ohio law actually prohibits a jury from making these types of sentencing determinations. State ex rel. Mason v. Griffin, ___ Ohio St.3d ___, 2004-Ohio-6384, at ¶ 15. {¶ 16} The nature of a jury also suggests that determination of certain sentencing factors, such as the seriousness of an offense, should not be relegated to juries. Juries do not have the cumulative experience and knowledge necessary to make informed determinations related to the seriousness of an offense or the impact of a sentence on protection of the public from future crimes. A juror's experience is generally limited to a single case, which, given the lack of available comparative experience, may inevitably be the worst form of the offense in their mind. A judge, on the other hand, has vast knowledge stretching across a wide genre of cases and crimes, experiences typical recidivism rates by presiding over repeat offenders, and understands the extensive array of facts and circumstances which may relate to the seriousness of each offense. {¶ 17} Recognizing the traditional power of judges in imposing sentence, the United States Supreme Court has "consistently approved sentencing schemes that mandate consideration of facts related to the crime * * * without suggesting that those facts must be proved beyond a reasonable doubt." McMillan v. Pennsylvania (1986), 477 U.S. 79, 93,91 L.Ed.2d 67. "[N]othing in [the Court's precedent] suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the [statutory] range[.]" Apprendi,530 U.S. at 481. See, also, McMillan, 477 U.S. at 87-88; State v.Huhgett, 2004-Ohio-6207, 5th Dist. No. 04CAA06051, at ¶ 47. Instead, a judge: "may select any sentence within the range, based on facts not alleged in the indictment or proved to the jury — even if those facts are specified by the legislature, and even if they persuade the judge to choose a much higher sentence than he or she otherwise would have imposed." Harris, 536 U.S. at 566. Consideration of the unique facts of each crime within an indeterminate sentencing scheme is permissible under the Sixth Amendment precisely because those facts, by themselves, do not "pertain to whether the defendant has a legal right to a lesser sentence[.]" (Emphasis omitted.)Blakely, 124 S.Ct. 2540. {¶ 18} We conclude that Blakely does not bar an Ohio trial court judge from exercising his traditional sentencing discretion, in which the judge necessarily considers the facts of the underlying offense in making the determinations required under R.C. 2929.14(B). See McMillan,477 U.S. at 87-88, 93; Apprendi, 530 U.S. at 481; Harris, 536 U.S. at 566;Blakely, 124 S.Ct. at 2540-42. Instead, the discretion reserved to trial judges in Ohio illustrates the exercise of discretion, within an indefinite sentencing scheme, as was contemplated by Blakely. {¶ 19} When the State of Ohio charges a defendant with a felony, R.C.2929.14(A) specifically provides for an indefinite term of imprisonment depending upon the degree of the felony. Prior to acceptance of a defendant's guilty plea, Crim.R. 12(C)(2)(a) requires a court to specifically inform the defendant of the maximum penalty with which that defendant may be punished, thus notifying the defendant that he will be subject to an indefinite term of imprisonment based entirely upon his guilty plea. The additional findings necessary to impose a more than minimum sentence on a first time offender under R.C. 2929.14(B) are neither findings of fact nor the type of finding traditionally consigned to a jury such that the Sixth Amendment would encompass them within its grasp. Concurrently, an Ohio judge may not sentence a defendant to a penalty in excess of the statutory maximum regardless of his findings related to the underlying offense. See R.C. 2929.14(A). Therefore, this situation presented in the present case is distinguishable from both the application and reasoning provided in Blakely, where the trial court sentenced Blakely to 37 months in excess of the amount of imprisonment permitted by the statute under which he was convicted. {¶ 20} Blakely further does not apply to imposition of consecutive sentences. As long as each sentence does not exceed the statutory maximum, courts have consistently held that Blakely is not implicated. See State v. Taylor, 11th Dist. No. 2003-L-165, 2004-Ohio-5939, at ¶ 25 (stating that Blakely and Apprendi do not apply to consecutive sentences as long as each individual sentence does not exceed the statutory maximum); State v. Wheeler, 4th Dist. No. 04CA1, 2004-Ohio-6598, at ¶ 23; State v. Madsen, 8th Dist. No. 82399, 2004-Ohio-4895, at ¶ 17 ("Apprendi and Blakely concern the limitations for punishment for one crime committed. They do not discuss whether sentences for multiple, separate crimes should be served concurrently or consecutively.") A judge, therefore, may properly make the findings under R.C. 2929.14(E)(4) necessary to impose consecutive sentences without submitting the underlying facts to a jury. {¶ 21} The trial court in this case properly considered the facts of the underlying offenses and concluded that minimum sentences "would demean the seriousness of the offense[s] and not adequately protect the public * * * from future criminal conduct by [Defendant]." The court also properly supported imposition of consecutive sentences, finding that: "consecutive sentences are necessary to protect the public and punish the offender, not disproportionate to the conduct and to the danger the offender poses, and the harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct[.]" {¶ 22} Blakely does not prohibit a judge from making factual determinations related to the underlying offense when exercising discretion within Ohio's sentencing scheme. The court, therefore, properly made all findings requisite to imposition of more-than-minimum, consecutive sentences. Accordingly, we overrule Defendant's second assignment of error. {¶ 23} We overrule Defendant's assignments of error and affirm the judgment of the Summit County Court of Common Plea. 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, 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. Exceptions. Carr, P.J., Boyle, J., Concur. 1 Rumination is not technically a defense to the charges. It is only a possible manner in which to rebut the cause of the harm suffered by the children in certain cases. This Court, however, will refer to it as a defense merely for ease of discussion.

2016-07-06 06:41:56.211313+00

Sweeney

* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was not allowed in (1997), 77 Ohio St.3d 1548,674 N.E.2d 1186. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 444 Defendant-appellant Ted Papp appeals from the jury trial verdict in favor of plaintiff-appellee Daniel J. Smith. The cause of action was based on an allegedly defamatory informational campaign flier1 associated with a United Automobile Workers' ("UAW") union shop chairman election at a General Motors Company ("GMC") automobile parts manufacturing plant located in Parma, Ohio. The literature generally impugned the fitness of plaintiff to hold elected union office and is actionable per se. For the reasons adduced below, we affirm. A review of the record on appeal indicates that plaintiff offered the testimony of five witnesses during his case-in-chief. The plaintiff testified on his own behalf to the following: (1) he was employed at a GMC plant in Euclid, Ohio from 1976 to 1991, when, following a five-week period of being unemployed, he obtained employment at the GMC Parma, Ohio plant; (2) he first became involved in union politics in 1983 and has held a series of elected positions within the union since that time, having never lost an election for union office until the present election at issue herein; (3) union elections usually involve the use of campaign literature being distributed at the plant; (4) by virtue of his union positions he would receive additional income in the amount of approximately $8,000 to $10,000 per year, apart from his regular income for his own employment as a full-time union representative (shop chairman only, not alternate committeeman) which was paid for by GMC, through preferential overtime; (5) in 1993, he decided to run for the union position of alternate committeeman at the Parma plant, and did pass out campaign literature detailing his past experience in the union; (6) it was his own opinion, based on his previous campaigns for union office, that his chances for election were good, at least up until the publication of the offending literature, which detailed misinformation concerning plaintiff's performance as a union official at the Euclid plant and was distributed on a bulletin board and on tables in the Parma plant cafeteria; (7) the election, which contained five candidates in *Page 445 total, was scheduled for May 25, 1993, and defendant's offending literature was distributed on May 21, 1993; (8) he distributed, approximately several days before the election, rebuttal literature in an attempt to correct the perceived misinformation contained in defendant's literature; (9) he lost the election by approximately thirteen votes, and blames the offending literature, which is full of inaccuracy and lies, for destroying his campaign and his political career within the union; (10) he did not know defendant before the offending literature was distributed, nor did defendant ever speak to the plaintiff concerning the allegations made in defendant's literature; (11) he earns approximately $19 per hour at the Parma plant; (12) defendant also was employed at the Euclid plant during the term of the plaintiff's union leadership there; (13) the financial incentive for becoming alternate committeeman is the potential for additional income through the use of overtime preference; (14) he never investigated whether the other candidates were employed at the Parma plant longer than he; (15) the winner of the election received thirty-nine votes to the plaintiff's twenty-six votes; (16) as a result of the election defeat, plaintiff had no change in his job classification, drop in his standard pay rate or loss of scheduled work hours; (17) the offending literature caused him emotional distress, yet he took no medication for it, nor did he miss any time from work, nor was he hospitalized or receive medical treatment. The second witness for the plaintiff was Thomas Berg, who testified as follows: (1) he was employed at the Euclid plant from 1969 to August 1993 as a security officer and knew the plaintiff while plaintiff was employed there; (2) he saw copies of the offending literature at the Euclid plant, but he does not know how they came to be there; (3) he did not see defendant or anyone else actually distributing these copies. The third witness for the plaintiff was Kent Lumeyer, who testified as follows: (1) he is a long-time employee of GMC, and has been employed at the Parma plant since 1991, when he oriented at the same time as the plaintiff; (2) he has served as an alternate committeeman for a period of two and one half years at another plant; (3) he supported plaintiff in plaintiff's candidacy, speaking in the candidate's favor to a number of persons after the offending literature had been distributed in an effort to sway their vote; (4) he observed defendant distributing the offending literature on the shop floor and in the plant cafeteria; (5) defendant told the witness that he (defendant) hated the plaintiff for the reasons stated in the offending literature; (6) he knows defendant and thinks one cannot believe everything defendant says, so the witness voted for plaintiff, thinking plaintiff was the right man for the job; (7) the election had low voter turnout and was a fairly close election; (8) it is the witness's opinion that the literature cost plaintiff the election because there were many people who did not know plaintiff, and after *Page 446 reading the literature might believe the information in the literature; (9) the witness never worked at the Euclid plant; (10) some of the voters told the witness that they had voted for a candidate other than plaintiff based on the information contained in the offending literature. The fourth witness for the plaintiff was Anthony DiLiberato, who testified as follows: (1) he is presently employed at the Parma plant and had worked in the past at the Euclid plant from 1977 to 1990 where he held union office as an alternate committeeman; (2) as an alternate committeeman, he obtained approximately $5,000 to $8,000 additional overtime income; (3) it is the witness's opinion that plaintiff did a good job as a union representative at the Euclid plant; (4) he saw copies of the offending literature at the Parma plant prior to the election; (5) he did not consider the allegations in the offending literature to be true; (6) he never saw defendant in the possession of the offending literature. The fifth witness for the plaintiff was Peggy Smith, the plaintiff's wife, who testified as follows: (1) she is a long-term GMC employee, working at the Euclid plant from 1973 to 1991, then transferred to the Parma plant at the same time as her husband; (2) she has held elective union office in the past; (3) plaintiff had a very good reputation for honesty and integrity as a union officer at the Euclid plant; (4) she observed, with much resulting emotional distress, the offending literature at various places throughout the Parma plant a few days before the election; (5) she denied the allegations presented in the offending literature; and (6) although not elected or appointed within the union, she did fill in several times for her husband as shop chairman at the Euclid plant. At this point the plaintiff's exhibits were admitted into evidence without objection. The plaintiff then rested and the defense moved for a directed verdict on all three of the remaining counts of the complaint. The basis for this motion was that the literature was qualifiedly privileged, that no malice was demonstrated, that reckless disregard for the truth or falsity of the information was not demonstrated, that there has been no demonstration of damages, and that there is no proof that plaintiff would have won the election but for the literature distributed by defendant. Subsequent to limited oral argument on the motion, the court denied the motion for directed verdict. The defense offered the testimony of three witnesses during its case-in-chief. The defendant testified on his own behalf as follows: (1) he has been a GMC employee since 1963, worked at the Euclid plant from 1988 to 1990, and since 1990 has been employed at the Parma plant; (2) he grew to be critical of plaintiff's union-related abilities and decisions through several brief personal observations/interactions while at the Euclid plant; (3) he was a voter in the contested election at issue; (4) he feared a successful candidacy by plaintiff would have a detrimental impact on the Parma plant labor operation in much the same *Page 447 way as defendant believed was caused by plaintiff at the Euclid plant; (5) prior to distributing the literature, defendant only exchanged brief pleasantries with the plaintiff when they would come in contact at the Parma plant, not maintaining a personal relationship outside the plant or outside the scope of union activities; (6) his purpose in writing and distributing the literature was to alert the potential voter to the plaintiff's perceived shortcomings as a candidate for union office, to encourage the potential voter to investigate the allegations contained in the literature and prove to the writer that his information was not correct, and to hopefully see that anyone but plaintiff wins the election; (7) he spoke with Mr. Corley, whom he trusted, approximately half a dozen times prior to distributing the literature discussing incidents at the Euclid plant; (8) only personal observation or verified information was discussed in the literature; (9) he distributed a total of one hundred copies of the literature, copied on yellow-colored paper,2 approximately four days prior to the election, placing them only within the confines of his district within the plant; (10) he did not post or distribute any copies outside the department, in the cafeteria, or outside the Parma plant; (11) he distributed the literature with enough time before the election to be fair and allow time for open discourse, investigation by the voters and rebuttal by the candidate; (12) he does not hate the plaintiff, nor did he ever state to anyone that he hated the plaintiff; (13) he has held union office in the past; (14) he did not state in the literature which allegations were his personal opinion based on his own perception/interpretation of an occurrence; and (15) many of the persons who allegedly told him some of the information in the literature have either not been asked to testify by defendant or defendant cannot name that person. The second witness for the defense was James Corley, who stated as follows: (1) he had worked at the Euclid plant for sixteen years before being employed at the Parma plant beginning in September 1991; (2) he presently holds the union office of alternate committeeman; (3) he and plaintiff worked together as elected union officers at the Euclid plant; (4) although he has nothing against plaintiff personally, he did not care for plaintiff as a union representative, believing plaintiff was too much a company man and did not handle criticism well; (5) he corroborated a number of allegations contained in the offending literature, to wit, *Page 448 reduction of break time at the Euclid plant during plaintiff's union representation there, that a nonunion leather company was allowed to come into the plant, and hearing plaintiff referred to as "no balls"; (6) he did speak several times with defendant about plaintiff's union activities at the Euclid plant prior to the election at issue; (7) he did not consider the Euclid plant labor operations to be outrageous when he left that plant, which was after plaintiff had already left; and (8) he has never seen campaign literature of this nature before this. The third witness for the defense was Walter Kijek, who testified as follows: (1) he has been employed at the Parma plant for thirty years and is presently the UAW shop chairman, the top union officer at that plant; (2) in 1990, the position of alternate committeeman lost super seniority with regard to overtime, thus making the position subject to normal overtime equalization (which procedure hinges on where the employee is on the accrued overtime list, to wit, if he is high man on the amount of overtime already worked, that person does not get to work the upcoming overtime until those employees with less accrued overtime have the opportunity to work the upcoming overtime, thereby achieving equalization of overtime for all employees) unless the committeeman is absent, in which case the alternate committeeman at that time gets the super seniority and its preference to overtime due the committeeman; and (3) he would not be surprised if the present alternate committeeman, who won the election at issue, received approximately $10,000 per year in overtime as a result of his union position. At this point the defense rested its case. The defense renewed its motion for directed verdict, which motion was again denied by the trial court. Subsequent to closing arguments and instructions to the eight-person jury, a unanimous verdict was returned in favor of plaintiff in the amount of $12,000 in compensatory damages and $2,031.25 in punitive damages plus attorneys fees. This timely appeal followed, presenting three assignments of error. I "Since Smith presented no material from which a finding of actual malice by Papp could be made the trial court should have granted Papp's motion for directed verdict made at the end of Smith's evidence and/or Papp's motion for directed verdict made at the close of all evidence." Civ.R. 50(A)(4) establishes the standard governing motions for directed verdict and provides as follows: "When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion *Page 449 upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue." In considering a motion for a directed verdict, the court does not weigh the evidence or try the credibility of witnesses.Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284, 21 O.O.3d 177, 178-179, 423 N.E.2d 467, 469. The court is required to construe the evidence presented most strongly in favor of the nonmoving party, and if there exists any evidence of substantial probative value in support of the nonmoving party's claim, the motion should be denied. Ruta v. Breckenridge-Remy Co. (1982),69 Ohio St.2d 66, 68-69, 23 O.O.3d 115, 116-117, 430 N.E.2d 935,937-938. In the context of this assignment, defendant argues (1) that he demonstrated the defense of "qualified privilege" in the making and publication of the literature at issue sufficient to grant a motion for directed verdict and, in the alternative, (2) that the element of "actual malice" was not demonstrated by clear and convincing evidence by the plaintiff, who was acting in the role of a public figure while running as a candidate for union office, sufficient to defeat the qualified privilege. By virtue of the failure to argue their existence in his brief, it is conceded on appeal by defendant that the remaining common-law elements of defamation have been demonstrated by the plaintiff.3 Turning our attention to the issue of qualified privilege, we note that the availability of this defense is presumed by the defendant in his argument. As the record and argument of plaintiff demonstrates, this presumption is premature, as it must first be demonstrated to our satisfaction that the defense applies to the communication at issue. The standard of review for whether a communication is qualifiedly privileged was stated in Jacobs v. Frank (1991),60 Ohio St.3d 111, 113-114, 573 N.E.2d 609, 612, citing Hahn v.Kotten (1975), 43 Ohio St.2d 237, 245-246, 72 O.O.2d 134, 139-140, 331 N.E.2d 713, 719-720, as follows: *Page 450 "`A publication is conditionally or qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do. This general idea has been otherwise expressed as follows: A communication made in goodfaith on any subject matter in which the person communicating hasan interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interestor duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. The essential elements of a conditionally privilegedcommunication may accordingly be enumerated as good faith, aninterest to be upheld, a statement limited in its scope to thispurpose, a proper occasion, and publication in a proper mannerand to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty, and is not restricted within any narrow limits. * * *' "The concept of a qualified privilege is based upon public policy and the need to protect the publication of a communication made in good faith. * * *" (Emphasis added.) Reviewing the record in a light most favorable to the plaintiff/nonmoving party, we conclude that there is sufficient evidence presented which brings into question whether the literature published by defendant is privileged, thereby mandating a denial of the motions for directed verdict. This is so for at least three reasons. First, the element of defendant's good faith in the making of the communication is open to debate, particularly where (1) the defendant admitted on the stand that the substance of one of the allegations (regarding the appointment of the wife to a union position) was impossible for plaintiff to have done and was therefore untrue when made, and (2) it could be inferred that defendant lied during his testimony when he stated that Corley had told him that plaintiff had conducted secret meetings with the management at the Euclid plant, which information was denied by Corley during examination. Second, the reference in the literature to Mrs. Smith having "more balls" than plaintiff as a union official refutes defendant's contention that the communication was limited to its scope and purpose, which was to criticize plaintiff's activities and decisionmaking as a union official. Third, there was evidence that the literature was published in areas well outside the voting district within the Parma plant. Accordingly, the trial court properly denied the motions for directed verdict on the issue of applicability of qualified privilege. *Page 451 Assuming that the qualified privilege did attach to the communication, which necessarily would require a clear and convincing demonstration of actual malice to defeat the privilege, Jacobs v. Frank, supra, at 116, 573 N.E.2d at 614, we now turn our attention to the issue of "actual malice" as it relates to the ruling on the motions for directed verdict. We are mindful that in a qualified privilege case, "`actual malice' is defined as acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity." Id. Reviewing the record, we find that there exists more than some evidence to support the claim of plaintiff that defendant exhibited actual malice in the publication of the communication, thereby overcoming the application of a directed verdict. This evidence consists of the following: (1) the falsehoods detailed in the discussion above on the issue of good faith; (2) the denials by Corley concerning a number of points of information asserted by the defendant as having been divulged by Corley; and (3) the lack of reasonable prepublication investigation by defendant into the truth of the published information relative to much of the union-related activities of plaintiff, despite the ready availability of sources with which to check those statements in the communication, thereby showing a reckless disregard for the truth. The first assignment of error is overruled. II "Since the campaign flyer written and distributed by Papp was clearly protected political speech the jury's verdict in favor of Smith was against the manifest weight of the evidence." In this assignment, defendant argues that the communication is constitutionally protected opinion. Analyzing the merits of this assignment, we are cognizant of two standards of review which must be applied to the case sub judice. First, in reviewing an argument based on manifest weight of the evidence, we note that a judgment will not be reversed as being against the manifest weight of the evidence if there is any competent, credible evidence to support it. C.E. Morris Co. v. FoleyConstr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261,376 N.E.2d 578. Second, whether a particular communication is protected opinion depends on the application of a four-part "totality of the circumstances" test enunciated in Vail v. Plain DealerPublishing Co. (1995), 72 Ohio St.3d 279, 649 N.E.2d 182, syllabus, which provides as follows: "When determining whether speech is protected opinion a court must consider the totality of the circumstances. Specifically, a court should consider: the specific language at issue, whether the statement is verifiable, the general context of the statement, and the broader context in which the statement appeared. *Page 452 (Scott v. News-Herald [1986], 25 Ohio St.3d 243, 25 OBR 302,496 N.E.2d 699, approved and followed; Section 11, Article I of the Ohio Constitution, applied.)" As to the first element of the Vail test, the court must determine "whether a reasonable reader would view the words used to be language that normally conveys information of a factual nature or hype and opinion." Id. at 282, 649 N.E.2d at 186. Upon reading the communication published by the defendant, it is inconceivable that any reasonable reader would construe the general context of the information contained therein in any light other than fact. Additionally, nowhere in that communication is it stated or intimated that the statements are the author's opinion. As to the second element of the Vail test, the court inVail, 72 Ohio St.3d at 283, 649 N.E.2d at 186, stated: "Does the author imply that he has first-hand knowledge that substantiates the opinions he asserts? Where the `"* * * statement lacks a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content."'" In the present case, the author claimed firsthand knowledge on a number of statements and implied firsthand as to others. We conclude that the factfinder, which is charged with weighing the credibility and weight of the evidence, could justifiably determine that this element of Vail was satisfied by the plaintiff. As to the third element of Vail, while the communication seethed with hostility toward the plaintiff, the general tenor of the communication is one of factual reporting. As to the fourth element of Vail, the overall nature of the communication was one of factual reporting, not subjective personal opinion. Having applied the Vail test to the facts before us, it is the opinion of this court that the weight of the evidence supports the determination of the jury that the communication is not protected speech. Finally, defendant's reliance on Section 101(a)(2) of the Labor Management Reporting and Disclosure Act, Section 411(a)(2), Title 29, U.S. Code is misplaced since the Act's provisions apply to actions concerning a union's reprisal against its members relative to the protection of a member's freedom of speech, not to a situation as here between two individuals. See G.P. Reed v. United Transp. Union (1989),488 U.S. 319, 109 S.Ct. 621, 102 L.Ed.2d 665. The second assignment of error is overruled. *Page 453 III "Even if Smith had properly proven defamation Smith presented no proper proof of damages." Appellant's assertion that plaintiff presented no proof of damages is not supported by the record. The testimony at trial demonstrated that plaintiff had emotional distress, humiliation and depression following the publication of the communication, causing a loss of rental income when his lethargic state caused him to forgo outside interests and the loss of reasonably anticipated additional income from having lost a close election for the alternate committeeman position, which according to testimony was within plaintiff's grasp prior to the publication of defendant's communication. Since there was some competent and credible evidence on the issue of damages, we find no error in the jury's determination of damages. The third assignment is overruled. Judgment affirmed. NAHRA and KARPINSKI, JJ., concur. APPENDIX WHO THE HELL IS DANNY SMITH? I've been hearing this question more and more lately, and it deserves an answer. Since a good number of us worked at the Euclid plant where Smith comes from, we are fairly familiar with his record: 1) He is the ex-shop chairman who earned 2 (two!) well deserved nicknames during his less than illustrious career: "Dan the company man" and "Danny no-balls." 2) He is the ex-Union official I heard making a speech to the members one day while standing next to the plant manager, that went something like this: "You guys better make more pieces, because the company needs more production to keep your jobs, and if you don't cut down on your breaks and increase production, you will start getting some reprimands!" 3) He is the guy who accepted an all expense paid vacation to Portugal to accompany Euclid plant management. Some said they took Danny along as a booth [sic] licker because he fit the role so well, but I'm sure that was just a *Page 454 rumor. At the time, management was considering places to transfer the work from Euclid, and visited some "slave" shops to learn how to squeeze the blood out of the people until then, to pay for it. They needed Danny's assistance to succeed! 4) He is the ex-official who reopened the Local contract about 3-4 months before its natural expiration in 1990, and when I asked him why, he whimpered like a little mouse: "Well, the company wanted it, they needed some concessions." 5) He is the ex-shop chairman who led both negotiations for all the concessions during the two Local contract talks in 1990, and I was told by some members of his former negotiating team who were in the know, that he had secret meetings with management in and out of the plant by himself and behind their back. Some of the results of his negotiating abilities: A. Brought into the plant a Non-Union leather company to set up a crib and to eliminate the jobs of material handlers. Gave away the 23 min. breaktime and reduced it to 12 min. B. Agreed to prohibit anyone bringing any personal items onto the shop floor, and as a consequence a man got a D.L.O. for reading his Bible by his machine during his lunchtime! 6) He is the ex-Union official I heard at the school auditorium during ratification meeting threaten the membership with the plant closing down if they don't vote for the concessions he negotiated. Those concessions paid the company's expenses of moving the jobs from Euclid to Mexico and Canada. (but Smith was too stupid to see that even when it was explained to him in detail!) 7) He is the ex-shop chairman who appointed his wife as a committeeman (or woman) when a vacancy occured [sic], but wouldn't you know it, she turned out to have more balls than he did! 8) He is the ex-official whose actions and/or inactions got the working conditions so outrageously awful, that he couldn't even stand it any longer it seems, so he disappeared from the Euclid plant on a Friday, and by the wave of the company's magic wand, he reappeared in this plant on a Monday. Slick, huh? 9) He is the guy whose qualification as a Union official was best described to me by one of his former constituents who always tells it like it is, when he said: "Danny Smith wouldn't make a pimple on a Union man's ass, but he makes the best company man any management could hope to have in the Union." Amen!! *Page 455 10) He is also the candidate for Alternate in our Dist. #2, who recently made statements to the effect, that winning this election would assure him first shift, and lot of overtime. What a piss-poor reason to run for Union office!!! 11) And finally, he is the ex-shop chairman I was warned not to criticize openly or write anything about (I listen so well!), (because he can't stand criticizm (sic) and he likes to file lawsuits so much, he even filed one against his own Union at Euclid!) Of course, he didn't get anywhere with it, but that's not the point. It seems he's never been informed, that any idiot can file a lawsuit for anything under the sun. It only takes about $30, but winning it is a different ballgame. It's also obvious, that he never heard of the Taft-Hartley Act, or the N.L.R.B. Even a half-baked Union official is familiar with their laws and rules on Union affairs, elections, campaigns, et. And how about Truman's advice: "If you can't stand the heat, keep your ass the hell out of the kitchen!" 12) To be sure, and to be fair, there are many former U.A.W. officers in this plant from other Locals who served their constituents with ompetence [sic] and distinction. Danny Smith is just most definitely NOT one of them!! So, it is your responsibility to yourself to find out about the candidates before the election, and if you need verification of the above, feel free to call the Euclid Local (what's left of it) or ask any former Euclid member. /s/ Ted Papp Ted Papp, Dept. # 43 Formerly of Euclid P.S. Wonder why this is printed on yellow? When it comes to standing up for your best interest, it's the closest match for the streak on Danny Smith's back!!! 1 It was stipulated that defendant wrote and distributed the objectionable literature at issue. The literature at issue is reproduced in the Appendix to this opinion. 2 Although not discussed by the parties, defendant's choice of yellow-colored paper is curious for a reason unrelated to the allusion to cowardice. Historically in labor circles, union members who believed that their leadership had negotiated a contract with management that was too favorable toward management would apply the highly charged derogatory term "yellow dog contract" to that bargaining agreement, concurrently expressing their displeasure with perceived shortcomings in the union officials' representation abilities. The use of "yellow dog" contracts, wherein the employee would sign, as a condition of employment, an agreement with the employer not to join or remain a member of a union, was banned by the Norris-LaGuardia Act of 1932. Limited exceptions to the Norris-LaGuardia Act were subsequently allowed by the Taft-Hartley Act of 1947 and Landrum-Griffin Act of 1959. 3 The common-law elements of defamation in Ohio are stated in Stow v. Coville (1994), 96 Ohio App.3d 70, 644 N.E.2d 673, as follows: "In an action for defamation, under Ohio law, the plaintiff must prove that the defendant made a false statement of fact about the plaintiff that tended to harm the plaintiff's reputation. Ashcroft v. Mt. Sinai Medical Ctr. (1990), 68 Ohio App.3d 359,365, 588 N.E.2d 280, 283. The statement must have been published, or communicated, to a third person and have caused actual harm to the plaintiff personally or in his trade or business. Id. The plaintiff must prove the defendant's fault, and, when the plaintiff is a public official or other public figure, the degree of fault required is actual malice. New YorkTimes v. Sullivan (1964), 376 U.S. 254, 279-280, 84 S.Ct. 710,724-725, 11 L.Ed.2d 686, 706." Stow, 96 Ohio App.3d at 72-73,644 N.E.2d at 675. *Page 456

2016-07-06 06:41:56.412517+00

Sherck

This is an appeal of a civil judgment issued by the Wood County Court of Common Pleas in a case concerning the lease, with option to purchase, of a tractor-trailer. The trial court determined that the purchaser/lessee had not breached the lease/purchase agreement and that the seller's retaliation for matters outside the contract constituted tortious acts sufficient to support punitive *Page 257 damages. Because we conclude that the trial court's findings were supported by the evidence, we affirm. On July 15, 1993, appellee, Edward D. Hofner, entered into an agreement with appellant, Dale L. Davis,1 for the lease of a 1985 International tractor-trailer. The terms of the lease called for appellee to make weekly lease payments of $250 and to pay certain specific expenses associated with the truck's operation as a commercial vehicle for a period of one year. The contract gave appellee the option of purchasing the truck at the end of the lease period for a price of $11,000. In September 1993, appellant sent appellee a letter in which appellant attempted to renegotiate or accelerate the purchase of the truck.2 In that letter, appellant also threatened to pull, without notice, the truck from the trucking company to which it was leased.3 In addition, appellant's letter complained about appellee's alleged failure to provide appellant with certain federally mandated documents associated with the operation of the truck. Appellee responded to appellant by sending a letter of his own on November 14, 1993, in which he correctly noted that the original lease/purchase agreement contained no provision for acceleration. Nonetheless, in this letter, appellee recomputed the balance he owed on the agreement. Based on an immediate payoff and with certain other credits, appellee concluded that his final payment would be $951.45, which he tendered at that time. A few days later, appellee submitted a small additional sum and demanded title to the truck. In January 1994, according to appellee's trial testimony, appellant offered to give appellee title to the truck if he returned the license plates from the vehicle. Appellee further testified that when he returned the license plates, appellant kept them and did not provide the title. Because of appellant's confiscation of the license plates, the truck could not be operated for approximately one month; this, according to appellee, resulted in a loss of revenue which exceeded $10,000. Appellee brought suit seeking compensation for this loss as well as punitive damages. *Page 258 Following a bench trial, the court found that appellee had no contractual duty to provide the mandated operating documents and that appellant's apparent retaliation for appellee's failure to submit these documents was wrongful. The court determined appellant's net loss as a result of this conduct to be $5,400. Additionally, the court concluded that appellant's conduct was "intentional, malicious, [and] fraudulent and constitute[d] malicious conduct in addition to serving as a breach of contract." Consequently, the court awarded appellee punitive damages in the amount of $1,600. From this judgment appellant now brings this appeal, setting forth the following three assignments of error: "Assignment of Error No. 1 "The trial court erred in finding appellants breached a lease contract when [the] actions of appellee [constituted] violations of federal law, and appellants took appropriate steps to comply with the law. "Assignment of Error No. 2 "The trial court erred in finding punitive damages appropriate against appellants for a breach of contract. "Assignment of Error No. 3 "The trial court erred in determining the amount of damages, and applying payments on the lease, and in determining appellee satisfied the contract, all against the manifest weight of the evidence and amounting to an abuse of discretion." I Appellant, in his first assignment of error, argues that appellee violated a variety of federal laws pertaining to the trucking industry. The various rules and regulations which govern the trucking industry, however, are irrelevant to this lawsuit as they were neither explicitly nor implicitly made a part of the parties' contractual agreement. The lease/purchase agreement deals in detail with the privileges and obligations of the parties and nowhere in this document is there any reference to federal trucking regulations. Absent the inclusion of those regulations in the agreement or, at a minimum, a specific reference to the regulations, appellant's actions cannot be condoned. Accordingly, appellant's first assignment of error is found not well taken. II Appellant's second and third assignments question the sufficiency of the evidence underlying the court's determination of damages and its decision to exact punitive damages. *Page 259 The general rule in Ohio is that punitive damages may not be recovered in a breach of contract action. Ketcham v. Miller (1922), 104 Ohio St. 372, 136 N.E. 145, paragraph two of the syllabus. However, under modern rules of pleading an action for tort may be combined with and arise from the same operative facts as a breach of contract action. Sweet v. Grange Mut. Cas.Co. (1975), 50 Ohio App.2d 401, 406-407, 4 O.O.3d 399, 401-403,364 N.E.2d 38, 41-42. Therefore, if the facts of the case show an intentional tort committed independently, but in connection with, a breach of contract and such tort is accompanied by conduct which is wanton, reckless, malicious or oppressive, then punitive damages may be awarded. R H Trucking v. OccidentalFire Cas. Co. (1981), 2 Ohio App.3d 269, 272, 2 OBR 298, 301,441 N.E.2d 816, 819; Saberton v. Greenwald (1946), 146 Ohio St. 414, 32 O.O. 454, 66 N.E.2d 224, paragraph two of the syllabus. The same standard of review is employed to assess the weight of evidence whether the finding is for compensatory damages or the elements necessary to justify an award of punitive damages. The factual determinations of a trier of fact will not be overturned as being against the manifest weight of the evidence if there is some competent, credible evidence going to all the essential elements of the cause of action. C.E. Morris Co. v.Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261,376 N.E.2d 578, syllabus. After having thoroughly reviewed the record in this matter, we conclude that there was competent, credible evidence by which the court could have found that appellant intentionally, maliciously and fraudulently deceived appellee into surrendering the vehicle's license plates and that the effect of this act was to deprive appellee of his livelihood for nearly a month. This act constituted both a breach of the contract between the parties and an independent intentional tort for which punitive damages might be assessed. The amount of punitive damages assessed by the trial court is reasonable under the circumstances. Concerning the manner in which the trial court calculated the damages due appellee for the period during which he was deprived of the truck, the court attached to its judgment entry detailed addenda explaining its rationale and the assumptions it employed to ascertain a final figure. Upon review, we conclude that the methods and computations employed by the court are supported by the evidence. Accordingly, appellant's second and third assignments of error are found not well taken. *Page 260 On consideration whereof, the court finds that substantial justice has been done the parties complaining, and the judgment of the Wood County Court of Common Pleas is affirmed. It is ordered that appellant pay the court costs of this appeal. Judgment affirmed. HANDWORK and ABOOD, JJ., concur. 1 Other parties are Dale Davis's wife, Debra M. Davis, and the couple's business entity, Double D Trucking. For clarity, we shall refer to these parties in the singular. 2 Appellee argued that this initiated a negotiation which resulted in a new agreement. The trial court, however, rejected the idea that a novation had occurred. Neither party assigns this decision as error. 3 Appellee's contractual relationship with the trucking company is not at issue in this case other than it is the contract with which appellant is alleged to have interfered.

2016-07-06 06:41:56.52945+00

Moyer

This matter is before us on the appeal of plaintiff, Donna J. Evans, f.n.a. Brown, from a judgment of the Court of Common Pleas of Franklin County, Division of Domestic Relations, overruling plaintiff's objections to the recommendation of the referee and finding that certain payments defendant made to his minor child constituted support payments; that plaintiff was not entitled to reimbursement for tuition expenses paid for her minor daughter; and that plaintiff was not entitled to attorney fees and expenses. Plaintiff asserts the following four assignments of error in support of her appeal: "1. The trial court erred as a matter of law in allowing defendant a credit towards his support arrearages for payments made directly to his minor child and not through the bureau of support, as ordered by the divorce decree, and without the consent of plaintiff, the custodial parent. "2. The trial court erred as a matter of law in construing the divorce decree of the parties to mean that defendant's tuition obligation matured only if the minor child attended the Ohio State University. "3. The decision of the trial court to deny plaintiff a judgment for tuition arrearages lies against the manifest weight of the evidence, for defendant's subsequent payments to his daughter for college expenses ratified her choice of university. "4. The trial court erred as a matter of law by refusing to grant plaintiff a reasonable award for attorney's fees incurred in prosecuting this action." Plaintiff and defendant were divorced by an agreed decree which awarded the parties' minor child, Jocelyn, to plaintiff, and further provided that "* * * defendant, Robert D. Brown, is ordered to pay to the plaintiff for the support of said child the sum of Twenty-five ($25.00) Dollars per week, effective from October 7, 1966, together with the payment of all of the tuition expense to Ohio State University, Columbus, Ohio, for the education of the said minor child, all of which said payments *Page 99 are to be made through the Cashier's Office of this Court." The parties stipulated that defendant made no payments either through the cashier's office or to plaintiff directly from May 30, 1975 through July 19, 1978, when Jocelyn reached the age of majority. They further stipulated that the amount of support due under the divorce decree during that period of time is $4,100. Defendant argues that, instead of making support payments to the cashier's office or to plaintiff directly, he paid Jocelyn for certain expenses she had incurred and that he is entitled to have those payments considered to be support payments. He testified that he bought her clothing; that he gave her money when she requested it to go on trips; that he gave her a total of $200 when she had been robbed and requested money from him; that he went to Boston and gave her some money while she was in school; and that he took her to Puerto Rico. Defendant had no records to prove any of his expenditures or payments to his daughter, and he estimated that said payments and expenditures were somewhere between $2,500 and $4,500. When asked why he had not paid support pursuant to the divorce decree, he stated that he had discussed that matter with his daughter and that he told her he had been denied his visitation rights and that he wanted his relationship with his daughter to be between her and him. The trial court cited our opinion in Gartner v. Gartner (July 26, 1984), Franklin App. No. 83AP-847, unreported, in finding that defendant's in-kind support can be considered to offset the obligation of the divorce decree to pay support to plaintiff. InGartner we held that, where a child resides for a prolonged period with the noncustodial parent rather than with the custodial parent, and the noncustodial parent provides support for the child during that time, the custodial parent is not entitled to judgment for a support arrearage for such time as full support was provided by the noncustodial parent. Those are not the facts in this case. Defendant's testimony indicates that the payments he made to his daughter were primarily for travel and other activities that would not be considered as support. There is no evidence that he paid for her food, tuition, rent, medical expenses or other necessities for which a custodial parent would use support payments. Furthermore, defendant had no records to prove the amount of money he had given to his daughter, and his guess that it was between $2,500 and $4,500 does not support a finding that the payments he made, even if they were considered payments in lieu of support, totaled the amount of the arrearage. We adopt the view of the courts of foreign jurisdictions which have held that voluntary payments made by a noncustodial parent, where the child is not living with the noncustodial parent, are not to be considered payments in lieu of support where the divorce decree orders that support payments shall be made through the court or directly to the custodial parent. The reasons for such a rule are persuasive. Particularly where the child is not near the age of majority, a parent must be in control of the purchasing of food, clothing and the providing of other necessities to the child. Direct payments to the child thwart that basic and necessary relationship between a minor child and a custodial parent. There is evidence in the record in this case that defendant was making payments directly to his daughter to "get even" with plaintiff for her refusal to grant defendant his visitation rights. Defendant's remedy under those circumstances is to file a proceeding in contempt against plaintiff. The trial court improperly considered defendant's payments to his *Page 100 daughter in determining the amount of support defendant owed plaintiff and thereby abused its discretion. The first assignment of error is well-taken and is therefore sustained. The second and third assignments of error are interrelated and are considered together. At the time the divorce decree was filed, Jocelyn was ten years old and a student at University School, which was operated by the Ohio State University at that time. She attended Simmons College as an undergraduate and plaintiff paid all of her tuition to Simmons. In the trial court, plaintiff sought payment from defendant in the sum of $7,925, which the parties stipulated would have been the tuition at Ohio State University if Jocelyn had attended Ohio State rather than Simmons College. Plaintiff argues that, under the divorce decree, defendant agreed to pay Jocelyn's tuition expense to Ohio State University but that plaintiff, as the custodial parent, had the discretion to choose a different college or permit her daughter to choose a college other than Ohio State to receive her undergraduate degree. Defendant argues that the language in the divorce decree should be given a narrow construction to the effect that he was required to pay for Jocelyn's tuition only while she attended University School at Ohio State University and that the decree did not contemplate that he would pay any college tuition. The trial court adopted the referee's recommendation and found that, because Jocelyn attended another college than Ohio State University for her undergraduate degree, defendant was not required to pay her college tuition. The divorce decree does not confine defendant's obligation to pay Jocelyn's tuition to University School at Ohio State University. Both parties were college graduates and it is a reasonable inference that it was anticipated that Jocelyn would continue her formal education following graduation from high school. We therefore hold that the decree imposed upon defendant an obligation to pay for Jocelyn's undergraduate education. We have previously held, in In re Landis (1982), 5 Ohio App.3d 22, that the custodial parent may choose the school to be attended by a minor child and the parent with the obligation to pay tuition must pay said tuition even where a different school is identified in a separation agreement. The divorce decree in this case should have been construed to mean that defendant was obligated to pay the equivalent of the tuition at Ohio State University for the period of time that Jocelyn attended Simmons College. That amount is stipulated by the parties to be $7,925, and the trial court erred when it did not sustain plaintiff's motion to that extent. The second assignment of error is sustained and the third assignment of error is overruled. The trial court adopted the referee's recommendation that "[i]n view of the recommendations made on the merits of the motions, an award of attorney's fees and expenses is not warranted." In view of our disposition of the assignments of error, on remand, the trial court should again consider whether the plaintiff's motion for expense money and attorney fees in the sum of $1,813.75 should be sustained. The fourth assignment of error is sustained to this extent. For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion. Judgment reversed and cause remanded. WHITESIDE and MCCORMAC, JJ., concur. *Page 101

2016-07-06 06:41:56.741768+00

Jones

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 393 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 394 On June 5, 1989, at approximately 12:30 a.m., defendant-appellant, Antonio Vinson, and several friends stopped for gasoline at a service station on East Avenue in Hamilton, Ohio, while en route to Middletown. As appellant's companions were pumping gas, Sam Frazier came walking up East Avenue past the station. Appellant approached Frazier to inquire about money Frazier allegedly owed appellant. According to the state's evidence, Frazier's debt was the result of a recent drug purchase from appellant. A confrontation ensured between appellant and Frazier, during which appellant picked Frazier up and slammed him to the pavement on his head. Appellant claimed that when Frazier suddenly turned on him, Frazier accidentally fell. Appellant and his companions then entered their vehicle and continued on to Middletown with appellant claiming he received five dollars from Frazier. Later that morning Frazier went to Mercy Hospital in Hamilton, where he was treated and released although X-rays showed a linear skull fracture. Frazier died later that same morning. An autopsy established the cause of death as a subdural hematoma, secondary to a fractured skull, an injury which *Page 395 the coroner and pathologist identified as consistent with a blunt trauma to the head. A grand jury indicted appellant on one count each of involuntary manslaughter, aggravated robbery and felonious assault. At trial, the court granted appellant a directed verdict of acquittal on the aggravated robbery charge. A jury found appellant guilty on the remaining charges and the court sentenced appellant to an eight to twenty-five year sentence on the involuntary manslaughter charge. No sentence was imposed on the felonious assault conviction since it was an allied offense of similar import to the manslaughter charge. Appellant now appeals, and submits the following assignments of error for review: Assignment of Error No. 1: "The trial court erred in permitting the state's discriminatory challenges of prospective jurors." Assignment of Error No. 2: "The trial court erred in limiting the defendant's cross-examination of the state's witness." Assignment of Error No. 3: "The trial court erred in admitting the testimony of the defendant's alleged unconvicted bad act and/or bad conduct." Assignment of Error No. 4: "The trial court erred in limiting the defendant's use of investigatory reports for cross-examination of the state's rebuttal witness." Assignment of Error No. 5: "The trial court erred in permitting testimony of the contents of a written document without admission of the document itself." Assignment of Error No. 6: "The trial court erred in convicting the defendant of involuntary manslaughter." Assignment of Error No. 7: "The trial court erred in convicting the defendant of felonious assault." Appellant's first assignment of error claims that the trial court erroneously permitted the prosecutor to use his peremptory challenges in a discriminatory manner to exclude the only black member of the jury venire. Appellant, who is also black, claims that the manner in which the state used its peremptory *Page 396 challenge constitutes purposeful discrimination and is a violation of equal protection within the context of the Supreme Court's decision in Batson v. Kentucky (1986), 476 U.S. 79,106 S.Ct. 1712, 90 L.Ed.2d 69. The Equal Protection Clause forbids the state's use of peremptory challenges to exclude potential jurors solely on account of their race or on the assumption that jurors of one race as a group will be unable to impartially consider the state's case against a defendant of the same race, Batson,supra, at 89, 106 S.Ct. at 1719, 90 L.Ed.2d at 83, or to purposely exclude any other identifiable group in the community which may be the subject of prejudice. See, also, State v.Esparza (1988), 39 Ohio St.3d 8, 13, 529 N.E.2d 192, certiorari denied (1989), 490 U.S. 1012, 109 S.Ct. 1657, 104 L.Ed.2d 171. Evidence of the state's exercise of peremptory challenges may, in and of itself, establish a prima facie case of purposeful discrimination in the selection of a jury. To establish such a case, the defendant must satisfy three requirements. First, the accused must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the accused is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits those who are of a mind to discriminate to do so. Third, the accused must show that these facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude venire members from the petit jury on account of their race. Such a combination of factors raises the necessary inference of purposeful discrimination. Batson, supra, at 96, 106 S.Ct. at 1723,90 L.Ed.2d at 88. Once the defendant makes a prima facie showing, the burden shifts to the state to come forward with a neutral explanation for challenging jurors of the defendant's race.Id. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. The prosecutor must articulate a neutral explanation related to the particular case to be tried. The trial court then has the duty to determine if the defendant has established purposeful discrimination.Id. at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 89. Although the excused juror and appellant were both black, so, too, were the victim, appellant's companions, and the state's principal witness. The state cited several nondiscriminatory reasons to the trial court for using a peremptory challenge against the only black juror. Among these were the juror's failure to properly answer the standard jury questionnaire by listing a post office box instead of giving his residence; his failure to state on voir dire that he had a prior criminal conviction; and his conduct of wearing dark glasses and maintaining a "stone demeanor" throughout the voir dire *Page 397 process, which the prosecutor claimed inhibited his ability to establish any contact with this prospective juror. The trial court determined that the state's reasons were valid and refused to find that appellant established purposeful discrimination. As a reviewing court, we should give due deference to those findings. Batson, supra, at 98,106 S.Ct. at 1724, fn. 21, 90 L.Ed.2d at 89. We accordingly conclude that the state's use of its peremptory challenge did not violate equal protection or deny appellant a fair trial and an impartial jury. The first assignment of error is, accordingly, overruled. In his second assignment of error, appellant submits that the trial court erred in limiting appellant's cross-examination of the state's only eyewitness to the crime. The state's witness, Alicia Bryant, testified that appellant violently assaulted Frazier, picked him up, and threw him to the pavement on his head. On cross-examination, defense counsel asked Bryant if she recently had a fight with appellant's girlfriend, to which Bryant answered affirmatively. When counsel proceeded to question Bryant as to the reason for the fight, the trial court sustained the prosecutor's objection on the grounds of hearsay. Counsel then withdrew the question. It is well settled that the limitation of cross-examination lies within the sound discretion of the trial court, viewed in relation to the particular facts of each individual case.State v. Acre (1983), 6 Ohio St.3d 140, 6 OBR 197,451 N.E.2d 802. Furthermore, the trial court, in its discretion, may allow collateral acts of a witness to be inquired into during cross-examination only if such acts are "clearly probative of truthfulness or untruthfulness." See State v. Kamel (1984),12 Ohio St.3d 306, 311, 12 OBR 378, 383, 466 N.E.2d 860, 865;State v. Leuin (1984), 11 Ohio St.3d 172, 174, 11 OBR 486, 488,464 N.E.2d 552, 554. Appellant argues that if permitted, cross-examination of Bryant would have revealed her bias or prejudice towards appellant and would have been indicative of her credibility. In denying the proposed question, the trial court seemed to suggest, and we certainly agree, that appellant's trial should not be tried on the basis of such collateral controversies. SeeState v. Heinish (1990), 50 Ohio St.3d 231, 240,553 N.E.2d 1026, 1036, fn. 5. We find no abuse of discretion on the part of the trial court and hereby overrule appellant's second assignment of error. In his third assignment of error, appellant claims the trial court erroneously admitted evidence of appellant's prior conduct and drug-related activity. *Page 398 During rebuttal testimony, a police officer testified that appellant informed the police that he sold crack cocaine. The officer also testified that appellant offered to turn in drug dealers from the Hamilton area if the police dropped the pending charges. According to appellant, the evidence violates Evid.R. 404, is improper evidence of a plea negotiation, and involves statements by appellant which the state failed to provide during discovery. The state argues that the evidence in issue was relevant to the motive behind appellant's attack on the victim. It was the state's theory that appellant's motive in beating Frazier was related to Frazier's failure to pay appellant for a purchase of crack cocaine. Generally, extrinsic acts may not be used to prove the inference that the accused acted in conformity with his other acts or that he has a propensity to act in a particular manner.State v. Smith (1990), 49 Ohio St.3d 137, 551 N.E.2d 190. Evid.R. 404(B) provides, however, that evidence of other acts may be admissible for other purposes such as motive or intent.Id. at 140, 551 N.E.2d at 193. In the case at bar, the defense asserted that appellant committed no assault upon the victim, that the money involved was merely a loan, and that any physical contact between appellant and the victim was accidental. This creates a material issue of motive and intent. Thus, appellant's "other acts" of drug-related activities are relevant to a determination of motive or intent and are admissible under Evid.R. 404(B). Appellant also contends that the officer's testimony regarding appellant's offer to turn in other drug dealers in exchange for a dismissal of the charges was inadmissible evidence of an offer to compromise or of a plea bargain in violation of Evid.R. 408 and 410. In State v. Kidder (1987), 32 Ohio St.3d 279, 513 N.E.2d 311, the Ohio Supreme Court held that the accused's statements to police in which he asked if pending charges could be dropped if he was "straight up about everything" did not contain an offer to plead guilty to any charge, nor did such statements indicate a serious effort at negotiating such a plea. According to the court, the admission of the accused's statements did not constitute a violation of Evid.R. 410. We believe that appellant's statements in the case at bar are similar to those in State v. Kidder, supra, and conclude that such statements should not be excluded inasmuch as Evid.R. 410 is "not intended to be used to hamper police at such an early investigatory stage." Id. at 285, 513 N.E.2d at 318. Appellant further asserts that the trial court erred in permitting the officer to testify that appellant allegedly admitted that he made a living by selling drugs. According to appellant, the state failed to provide this statement during discovery, which requires its suppression. *Page 399 The state's failure to provide discovery will not amount to reversible error unless there is a demonstration that the failure to disclose was a willful violation of Crim.R. 16, that prior knowledge of the statement would have benefited the accused in the preparation of his defense, or that the accused was prejudiced by admission of the statement. State v. Moore (1988), 40 Ohio St.3d 63, 66, 531 N.E.2d 691, 694; State v.Parson (1983), 6 Ohio St.3d 442, 445, 6 OBR 485, 487,453 N.E.2d 689, 691. The record reveals that during discovery, the state provided appellant with a written summary of the oral statement appellant provided during police questioning. Although the summary does not contain the specific statement which the officer attributed to appellant, the summary contains sufficient reference to appellant's involvement with the sale of crack cocaine. The imposition of sanctions for discovery violations is generally within the sound discretion of the trial court. State v.Hartcourt (1988), 46 Ohio App.3d 52, 546 N.E.2d 214. We believe that the record reveals no willful violation of Crim.R. 16, that appellant had ample notice of the oral statements, and there was no prejudice by the admission of the alleged statement. For these reasons, and those set forth above, we find no merit to the third assignment of error and hereby overrule the same. In his fourth assignment of error, appellant claims the trial court erred in prohibiting appellant's use of a police report to cross-examine the state's rebuttal witness. During cross-examination, appellant sought to question the investigating officer with respect to a police report narrative which contained statements the victim's parents and paramedics gave to police indicating that Sam Frazier claimed to have been assaulted by more than one person. The state objected on the basis of hearsay and the trial court granted the state's motionin limine. It is clear that the report contained hearsay statements within hearsay statements which amounted to "sources of information or other circumstances indicat[ing] lack of trustworthiness," which prohibits the report's introduction. Evid.R. 803(8)(b) and 805. The victim's statement itself does not qualify as a dying declaration since Frazier was not aware of his impending death when treated and released. Evid.R. 804(B)(2). Furthermore, the victim's parents and paramedics were not testifying or subject to cross-examination. Thus, each part of the combined statement does not conform with an exception to the hearsay rule. Evid.R. 805. Accordingly, the trial court could properly limit cross-examination of the investigating officer when such would have elicited inadmissible hearsay.State v. Heinish, supra, *Page 400 50 Ohio St. 3d at 236, 553 N.E.2d at 1032. In any event, the victim's statement that he was assaulted by more than one person was introduced into evidence via stipulated hospital records. Appellant also claims he was prejudiced by the state's failure to disclose this "exculpatory" evidence during discovery. We perceive no prejudice since the claimed exculpatory evidence was, in reality, inadmissible hearsay, and there is no reasonable probability that, had the evidence been disclosed during discovery, the result of the proceeding would have been different. State v. Wickline (1990), 50 Ohio St.3d 114,117, 552 N.E.2d 913, 917. The fourth assignment of error is, accordingly, overruled. In his fifth assignment of error, appellant claims that during rebuttal testimony the trial court erroneously permitted the investigating officer to testify from his handwritten notes without either admitting the notes into evidence or permitting an in-camera inspection of the notes. We disagree. The officer indicated that he used his notes to prepare the written summary of appellant's oral statement, a copy of which was provided to defense counsel. The notes in question did not purport to be a verbatim recital of either appellant's statement or the officer's testimony. Accordingly, the notes cannot be considered a "statement" of a witness and subject to inspection under Crim.R. 16(B)(1)(g). State v. Cummings (1985), 23 Ohio App.3d 40, 491 N.E.2d 354. Furthermore, the decision whether to permit an in-camera inspection of the notes is subject to the sound discretion of the trial court. Id.; Evid.R. 612. The discretion given to the trial judge serves to avoid the rule's being used as an additional method of discovery, particularly with regard to work product and pretrial preparation. Accordingly, we find that the trial court did not abuse its discretion in refusing to admit the notes or permit anin-camera inspection. The fifth assignment of error is hereby overruled. Appellant's sixth assignment of error claims that the court erred in convicting appellant of involuntary manslaughter. Under this assignment, appellant submits four issues for review. First, the state failed to prove involuntary manslaughter beyond a reasonable doubt; second, the prosecutor's closing arguments denied appellant a fair trial and due process of law; third, appellant was denied the effective assistance of counsel because trial counsel also defended the hospital which treated the victim prior to his death; fourth, cumulative errors in the case deprived appellant of his right to a fair trial. Under the first issue, appellant argues that the evidence was insufficient to support a conviction of involuntary manslaughter since the injury *Page 401 which allegedly caused the victim's death was equally likely to result from a blunt object striking the head as it was from the victim being thrown to the ground, striking his head on the pavement. Normally, a reviewing court will not reverse a jury conviction where there is substantial evidence upon which the jury could reasonably conclude that each element of the charged offense has been proven beyond a reasonable doubt. State v.Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132. In the case at bar, there was not only circumstantial evidence, but direct evidence, that appellant assaulted Sam Frazier and inflicted the fatal injury. The county coroner and pathologist both testified that a blunt injury to the head caused a skull fracture and the resulting subdural hematoma, an injury which was consistent with the act of slamming the victim on his head onto the pavement. There was also direct evidence, as provided by the eyewitness testimony of Alicia Bryant, that appellant picked up the victim and forcibly threw him to the pavement, causing severe head injuries. We are satisfied that there is substantial evidence upon which the jury could reasonably conclude that the state had proved each element of involuntary manslaughter beyond a reasonable doubt. For this reason, we find no merit to this particular argument. The remaining issues also form the basis of appellant's seventh assignment of error, which claims that the trial court erred in convicting appellant of felonious assault. We will accordingly address these remaining issues within the context of both the sixth and seventh assignments of error. Appellant claims that the prosecuting attorney's closing arguments were prejudicial, inflamed the passion of the jury, and constituted prosecutorial misconduct. The Ohio Supreme Court has held that prosecutors are granted wide latitude in closing arguments. State v. Maurer (1984), 15 Ohio St.3d 239, 269, 15 OBR 379, 397, 473 N.E.2d 768, 788, certiorari denied (1985),472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728. In order for a prosecutor's closing argument to be prejudicial, the remarks must be "so inflammatory as to render the jury's decision a product solely of passion and prejudice." State v. Williams (1986),23 Ohio St.3d 16, 20, 23 OBR 13, 17, 490 N.E.2d 906, 911, certiorari denied (1987), 480 U.S. 923, 107 S.Ct. 1385,94 L.Ed.2d 699. It must be noted that defense counsel failed to object to those portions of the prosecutor's closing argument which appellant now claims as prejudicial. In the absence of an objection, the prosecutor's arguments must constitute plain error. State v. Cooey (1989), 46 Ohio St.3d 20, 31,544 N.E.2d 895, 910. An error does not constitute plain error, unless, but for that error, the outcome of the trial clearly would have been otherwise. Id. *Page 402 We have reviewed the prosecutor's final argument and do not find it particularly egregious nor are we convinced that but for the prosecutor's comments, the outcome of the trial clearly would have been different. Appellant's next issue claims that he was denied a fair trial because one of his attorneys also represented Mercy Hospital, which treated the victim prior to his death. We find no merit to this claim inasmuch as counsel specifically denied representing the hospital in question, and because the record as a whole fails to show that counsel's performance was adversely affected or that he otherwise failed to vigorously pursue the defense on behalf of appellant. The final issue claims that the cumulative effect of each individual error deprived appellant of a fair trial and requires a reversal. We find no merit in this argument since there was no error in the proceedings below. Furthermore the error, if any, was not of a sufficient magnitude to require a reversal. For these reasons, appellant's sixth and seventh assignments of error are hereby overruled. Judgment affirmed. HENDRICKSON and KOEHLER, JJ., concur.

2016-07-06 06:41:56.778157+00

Resnick

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 151 DECISION AND JUDGMENT ENTRY This mandamus action is before the court on appeal from a judgment of the Wood County Court of Common Pleas finding that certain records in the possession of respondents-appellants, the city of Rossford and the Rossford Arena Amphitheater Authority, are public records subject to disclosure under R.C.149.43. Appellants set forth the following assignment of error: "The trial court erred in failing to find that the documents in question are protected by the attorney client privilege and are, therefore, excepted from the definition of `public records' and exempt from disclosure under R.C. § 149.43(A)(1)(p)." The only evidence offered in this case reveals that the Rossford Arena Amphitheater Authority is a nonprofit corporation organized for the purpose of constructing an arena/amphitheater complex in Rossford, Wood County, Ohio. Financing of the arena/amphitheater may be carried out, in part, through the issuance of bonds. Thus, appellants engaged the services of Chapman and Cutler, a bond law firm based in the state of Illinois, to draft certain bond documents. These included a proposed "Trust Indenture," a proposed "Deed of Trust" and a proposed "Assignment of Contracts to Trustee" for circulation to the Rossford Arena and Amphitheater Authority and "financing team members for the proposed bond issue." In addition, Chapman and Cutler formulated, for the bond underwriter, the city of Rossford and the "financing team members for the proposed bond issue," a "Preliminary Official Statement" in connection with the bond offering. Arthur Andersen LLP prepared a "Market and Financial Analysis of the Multi-Purpose Sports Entertainment Arena/Amphitheater to be located in Rossford, Wood County, Ohio" for a firm acting as a consultant to the Rossford Economic Growth Corporation. In April 1999, appellee, Benesch, Friedlander, Coplan Aronoff, LLP, requested inspection of alleged public records related to the creation and operation of the Rossford Economic Growth Corporation and the Rossford Arena Amphitheater Authority. Even though appellants made most of the requested records avail able to appellee, they refused inspection of the documents related to the issuance of bonds and financial analysis. On April 29, 1999, appellee filed a petition for writ of mandamus asking the court to order appellants to make avail able for inspection and copying "`any documents related to the issuance of bonds, debt obligations, borrowing of funds, *Page 152 financing or underwriting activities relating to'" the Rossford Arena Amphitheater Authority. Appellee subsequently filed a motion to produce the requested records for an in camera inspection by the court. In their memorandum in opposition, appellants argued, among other things, that the attorney-client privilege exempted the preliminary drafts of legal documents related to the issuance of the bonds from disclosure under R.C. 149.43(A)(1)(p). The common pleas court held a hearing on appellee's motion and decided to (1) allow appellants to file an answer before issuing any type of writ and (2) require appellants to file the disputed documents under seal for an in camera inspection. Appellants complied with the court's order. On May 28, 1999, the trial court granted appellee's petition as to the drafts of bond documents. The court, relying on State ex rel. District 1199 Health Care and Social ServiceUnion v. Gulyassy (1995), 107 Ohio App.3d 729, determined that the bond documents "were under consideration for legislative action" and, therefore, constituted public records subject to disclosure. The court reasoned: "In this case, the particular documents are financial records needed to accomplish bond financing of this particular project. Once these documents were submitted to the public body, Relator herein, they are no longer available under the attorney-client privilege as they become public records under consideration by a public body." The court held that the market and financial analysis report was prepared for a private firm and, as such, was not a public record. In their sole assignment of error, appellants assert that the trial court erred in granting appellee's petition for writ of mandamus. Mandamus is the appropriate remedy to compel compliance with R.C. 149.43. State ex rel. Steckman v. Jackson (1994),70 Ohio St.3d 420, 426-427. A writ of mandamus is warranted when: (1) the relator has a clear legal right to the relief prayed for; (2) the respondent is under a clear legal duty to perform the requested act; and (3) the relator has no plain and adequate remedy at law. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28,29. A relator meets those three requirements when a public office fails to comply with R.C. 149.43(B) requirements for public access to public records. State ex rel. Multimedia, Inc.v. Snowden (1995), 72 Ohio St.3d 141, 142. "R.C. 149.43 must be liberally construed in favor of broad access, with any doubt resolved in favor of disclosure of public records." State ex rel.Wadd v. Cleveland (1998), 81 Ohio St.3d 50, 51-52. *Page 153 A "public record" is any record that is kept by any public office, provided that none of the exceptions delineated in R.C. 149.43(A) apply. The parties to this case do not dispute that the Rossford Arena and Amphitheater Authority is a public office within the meaning of R.C. 149.43(A). Accordingly, its records are subject to the Ohio Public Records Act. See State exrel. Freedom Communications, Inc. v. Elida Community Fire Co. (1998), 82 Ohio St.3d 578, 579; State ex rel. Strothers v.Wertheim (1997), 80 Ohio St.3d 155, 156. Thus, the sole issue in this case is whether any of the exceptions enumerated in the statute is applicable. In particular, appellants challenge the trial court's judgment by arguing that the bond documents are exempt from disclosure under R.C. 149.43(A)(1)(p), which excepts "records the release of which is prohibited by state or federal law." from disclosure under the Ohio Public Records Act. On the other hand, appellee contends that R.C. 149.43(A) provides no exceptions for "drafts" of public records that document public activity. Appellee further argues that the attorney-client privilege is not applicable to the proposed bond documents because the documents, in their final form, are intended to be disclosed to third parties. Appellee also maintains that the proposed bond documents chronicle governmental activity and have already been disseminated to third parties. Apparently, in relying on Gulyassy, the trial court agreed with appellee's first and second arguments. In Gulyassy, the relators sought drafts of proposed amendments to R.C. Chapter 4117, as prepared by the Ohio Office of Collective Bargaining ("OCB") and "circulated within the office and to other state departments, including to people who were not acting as agents, employees or representatives of OCB." Id. at 732-733. The Franklin County Court of Appeals found that the drafts were records within the meaning of R.C. 149.011(G) because they served to document OCB's policies, operations and activities in the legislative area and that the drafts were "public records" because they were kept by a public office. Id. at 735-738. Nevertheless, the Gulyassy court recognized the fact that the attorney-client privilege, an accepted exception to R.C. 149.43 disclosure, was not involved in the case before it. Id. at 736 n. 3. Thus, we conclude that Gulyassy is distinguishable from the case before this court and is not dispositive of the issue of whether the preliminary bond instruments are exempt from disclosure under R.C. 149.43(A)(1)(p). To reiterate, we start with the premise that the proposed bond instruments1 are records, as defined in R.C.149.011(G), kept by a public office and, absent an *Page 154 applicable exemption, are therefore subject to disclosure pursuant to R.C. 149.43(A). In State ex rel. Thomas v. Ohio State Univ. (1994),71 Ohio St.3d 245, 249-250, the Ohio Supreme Court determined that records of communications between attorneys and their state government clients pertaining to the attorneys' legal advice are excepted from disclosure under R.C. 149.43(A)(1)(p) because the release of these records is prohibited by state law, specifically, by the attorney-client privilege. Accord, State ex rel.Nix v. City of Cleveland (1998), 83 Ohio St.3d 379, 383; State exrel. Natl. Broadcasting Co. v. Cleveland (1992), 82 Ohio App.3d 202; Woodman v. Lakewood (1988), 44 Ohio App.3d 118; State ex rel.Alley v. Couchois (Sept. 20, 1995), Miami App. No. 94-CA-30, unreported. The burden of showing that testimony, or documents, allegedly protected under the doctrine of privileged attorney-client communications is on the party seeking to exclude them.Peyko v. Frederick (1986), 25 Ohio St.3d 164, 166, quotingWaldmann v. Waldmann (1976), 48 Ohio St.2d 176, 178. The attorney-client privilege is based on an intent that confidences shared in the attorney-client relationship are to remain confidential in order that a client may consult freely with an attorney. State ex rel. Thomas v. Ohio State Univ.,71 Ohio St.3d at 249; Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638,660. Thus, it can be argued that communications made by a client to an attorney with an intention that the facts communicated will eventually become public are not protected by the attorney-client privilege. See Johndahl v. Columbus Trotting Assn., Inc. (1956),104 Ohio App. 118 (Note, however, that the communications were made in the presence of a third party in Johndahl). In support of the contention that the preliminary bond documents are exempt under the attorney-client privilege, appellants submitted the affidavits of *Page 155 the attorneys who prepared the documents. David Williams, who prepared the proposed Trust Indenture, Deed of Trust and Assignment of Contracts avers that the bond documents are based on confidential conversations with the client, Rossford Arena and Amphitheater Authority, and that the documents are "incomplete, preliminary, subject to change and not intended for distribution to the public." Charles Jarik, in his affidavit, vows that the draft Preliminary Official Statement is based on confidential communications with the underwriter and is "incomplete, preliminary, subject to change and not intended for retention" by the city of Rossford or the Rossford Arena and Amphitheater Authority. Our individualized scrutiny of the disputed documents discloses that they consist of the confidential information supplied to the attorneys by their clients coupled with legal advice and opinions, that is, legal proposals as to the substance of the bond instruments, based on that confidential information. Both affidavits state that the circulation of the preliminary documents was limited to the Rossford Arena and Amphitheater Authority, the underwriter and "financing team members" and would be treated as confidential.2 Nonetheless, despite the fact that the affidavits establish that the proposed bond documents contain confidential information and legal advice, appellee asserts, and the trial court agreed, that the attorney-client privilege is inapplicable because the governmental clients in this case intend to release the bond documents, in some form, to members of the public. Since it protects only information that a client intends to remain confidential, appellee concludes that the attorney-client privilege is inapplicable in this situation. See In re GrandJury Proceedings (C.A. 4, 1984), 727 F.2d 1352, 1356; Johndahl,supra. However, appellants cite to federal cases in which the courts determined that preliminary drafts of client communications and legal advice that are intended to be made public are protected by the attorney-client privilege. Only those portions of the drafts, if any, that are made public are not covered by the privilege. See Schenet v. Anderson (E.D.Mich. 1988),678 F. Supp. 1280, 1283. See, also, Natta v. Hogan (C.A. 10, 1968),392 F.2d 686; United States Postal Service v. Phelps Dodge RefiningCorp. (E.D.N.Y. 1994), 852 F. Supp. 156; Apex Municipal Fund v.N-Group Securities (S.D.Tex. 1993), 841 F. Supp. 1423, 1428 *Page 156 n. 3 (and the cases cited therein); Guy v. United Healthcare Corp. (S.D.Ohio 1993), 154 F.R.D. 172; United States v. Schlegel (D.C. Neb. 1970), 313 F. Supp. 177. In Apex the plaintiffs sought to discover "the underlying documents used to prepare public offering statements." Id. at 1425. In finding that the those parts of the preliminary drafts of these documents that were never published to third persons were privileged, the Apex court found that the rule promulgated the goal of a free flow of information between a client and his attorney. Id. at 1428. We find the reasoning in Apex and its predecessor cases persuasive and hereby adopt the rule set forth therein. Accordingly, the drafts of the bond documents reflecting information provided by appellants and the legal advice flowing from that information are protected by the attorney-client privilege, except to the extent that the information in them actually appears in public documents. Id. It is undisputed that, during the time period relevant to this case, the bond instruments existed in preliminary draft form only. Therefore, the proposed "Trust Indenture," proposed "Deed of Trust," proposed "Assignment of Contracts to Trustee" and proposed "Preliminary Official Statement" are exempt from disco sure pursuant to R.C. 149.43(A)(1)(p). As a result, appellee had no legal right to inspect and copy these documents and appellants had no legal duty to afford them that opportunity. Thus, the trial court did err in granting appellee's petition for writ of mandamus, and appellants' sole assignment of error is found well-taken. The judgment of the Wood County Court of Common Pleas is reversed. Appellee is ordered to pay the costs of this appeal. JUDGMENT REVERSED. 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. _______________________________ MELVIN L. RESNICK, J. JUDGE JAMES R. SHERCK, J., RICHARD W. KNEPPER, P.J., CONCUR. 1 This includes the "Preliminary Official Statement" prepared by Charles L. Jarik, a partner in the law firm of Chapman and Cutler. In his affidavit, Jarik avers that his firm "is currently passing on certain legal matters for the bond underwriting company of Stifel, Nicholas Company Incorporated (the 'Underwriter') in connection with a potential bond offering involving the City of Rossford, Ohio (the 'City') and the Rossford Arena Amphitheater Authority (the 'RAAA"). The affidavit continues: "Based upon confidential communications I have had with the underwriter * * *." It appears from the affidavit that the Preliminary Official Statement was prepared for a private company and is, therefore, not subject to R.C. 149.43. Nevertheless, none of the parties assert that it is not a public record. Thus, this document is included in our consideration of the merits of this appeal. 2 Appellee claims that the documents were disseminated to other entities, specifically Wood County and Perrysburg Township. However, appellee failed to offer any evidence to support these claims. Instead, appellee relies on its pleadings and attachments to its pleadings to support this claim. Pleadings are not evidence. Farmers Production Credit Assn of Ashland v. Stoll (1987), 37 Ohio App.3d 76, 77, citing Hocking Valley RR. Co. v.Helber (1915), 91 Ohio St. 231, paragraph three of the syllabus. It follows that attachments to pleadings are, therefore, not evidence. *Page 157

2016-07-06 06:41:57.362213+00

Per Curiam

This is an action in prohibition brought in this court against the Board of Elections of Cuyahoga County. Relator's petition recites in substance that on February 4, 1964, William J. McCrone filed nominating petitions with the board of elections for the nomination of the Republican Party for election to the office of "Clerk of Courts"; that relator is a citizen taxpayer and qualified elector of such county, eligible to vote for candidates for the office of Clerk of Court of Common Pleas, and brings this action on behalf of herself and other persons similarly situated; that a protest by relator was entered with the board on February 15, 1964, challenging the validity of the nominating petitions filed by McCrone because there is no office of "Clerk of Courts" provided for under Ohio law; that Section 2303.01 of Revised Code provides only for the election of "A Clerk of the Court of Common Pleas"; that on March 6, 1964, the board overruled the protest; and that the action of the board was arbitrary and an abuse of its discretion and contrary to law. Relator asks that respondents be prohibited from certifying, printing and placing the name of William J. McCrone on the ballot and from distributing for use at the primary election any ballots bearing his name. Respondents stipulate that certain parts of the petition are admitted and deny certain other parts thereof. The petition does not allege that the relator filed the protest against McCrone's candidacy with the board of elections as a qualified elector who is a member of the same political party as the candidate. This is the requirement of Section3513.05, Revised Code. That she is a Republican is stated in relator's brief but such status is not contained in the stipulation. This might provide a valid reason for necessarily denying relator's petition for a writ of prohibition, but we prefer to pass on the chief question presented to this court. The declaration filed with the board of elections by William J. McCrone read, in part, as follows: *Page 66 "Declaration of Candidacy Party Primary Election For County Office "* * * I hereby declare that I desire to be a candidate for nomination as a candidate of the Republican Party for election to the office of Clerk of Courts for the full term in the county of Cuyahoga, at the primary election to be held on the 5th day of May, 1964, and I hereby request that my name be printed upon the official primary election ballot of the said Republican Party as a candidate for such nomination as provided by law. * * *." The issue to be decided, therefore, is: Did the board of elections abuse its discretion in disallowing relator's protest against the candidacy of William J. McCrone because he stated in his declaration of candidacy that he was a candidate for "Clerk of Courts" when the statutory designation of the office for which he was seeking the Republican nomination in the May 1964 primary is that of Clerk of the Court of Common Pleas? The board of elections has the mandatory duty imposed by Section 3501.11 (K), Revised Code, to "review, examine, and certify the sufficiency and validity of petitions and nomination papers" and by law (Section 3513.05, Revised Code) its decision with respect thereto is final. The judicial branch of the government possesses the authority to set aside decisions of boards of elections only where the record discloses that the board has abused its discretion, acted contrary to law, or there is a showing of fraud or corruption. The statute relating to primary elections provides that the form of declaration of candidacy and petition of a person desiring to be a candidate for a party nomination shall substantially conform to a form given therein. Section 3513.07, Revised Code. McCrone's declaration satisfied that section. Section 2303.01, Revised Code, provides for the election of a Clerk of the Court of Common Pleas. Section 2303.03, Revised Code, states that the Clerk of the Court of Common Pleas shall also be the Clerk of the Court of Appeals. The office for years has been commonly, even universally, in this county, known as "Clerk of Courts." The official is the clerk of the two courts. We take judicial notice of the fact that the office is *Page 67 listed on the building directory of the Court House in Cuyahoga County as "Clerk of Courts"; that the sign over the doorway to this official's office is "Clerk of Courts"; and that the sign in front of his private office is "Clerk of Courts." In the primary and general elections of 1964, this is the only clerk's office in Cuyahoga County for which there is to be an election. This declaration of candidacy is not ambiguous in any sense. There can be no confusion in the mind of any reasonable person as to the office referred to in McCrone's declaration of candidacy. There is no evidence before us that any of the signers of McCrone's petition were mislead. Two members of the board of elections of opposite political faiths stated in open court, and their statements were not controverted, that the office has been known as "Clerk of Courts" for many years. Declarations of candidacy should not be rejected for mere technical defects when the board of elections is able to clearly determine from the petition the office for which the declarant is a candidate. We consider this designation of the office sought in McCrone's declaration of candidacy to be a mere technical defect and not a defect of substance. Accordingly, it is our determination and we so hold that the board of elections did not abuse its discretion in the decision finding McCrone's declaration of candidacy and petition to be valid. Their disallowance of the protest is not arbitrary, unreasonable or capricious and is not contrary to law, and, as a consequence, the writ of prohibition is denied. Writ denied. KOVACHY, P. J., and CORRIGAN, J., concur. ARTL, J., dissents. *Page 68

2016-07-06 06:41:57.875562+00

Travis

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 29 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 30 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 31 {¶ 1} Lynn and Rick Santho, on behalf of their son, Jamie Santho, appeal from the summary judgment entered by the Franklin County Court of Common Pleas on July 8, 2004, in favor of Boy Scouts of America, Simon Kenton Council, Prince of Peace Lutheran Church, and the Chiller Ice Rink ("Chiller"), and a directed verdict entered by the same court on March 2, 2005, in favor of Margaret Bennett. {¶ 2} Boy Scouts of America ("BSA") issued a charter to the Simon Kenton Council ("SKC"), which in turn issued a charter to the Prince of Peace Lutheran Church ("POPLC") for the purpose of sponsoring Pack 210. The pack committee, which was made up of parents and organized by POPLC, supervised all *Page 32 everyday operations and the planning of activities of Pack 210. Jamie Santho, age nine, was a Cub Scout in Pack 210. His Cub Scout Master was Fred Bigney. Margaret Bennett was a den leader in the troop. {¶ 3} In addition to her role as a den leader, Bennett also had significant ice skating experience. Prior to her employment with the Chiller, Bennett was employed by the Ice Skating Institute of America as program and educational coordinator. Following that, she taught ice skating at Ohio State University. At the time of the incident giving rise to this action, Bennett was a salaried employee of the Chiller, an ice rink located in Dublin, Ohio, and run by Central Ohio Ice Rinks, Inc. At the Chiller, Bennett served as the Skating School Director. Her duties included organizing class schedules and training instructors. On occasion, she also taught hourly lessons for a fee. {¶ 4} On November 13, 1994, Bennett organized a "family fun skate" at the Chiller for the members and parents of Pack 210. She filled out the "Agreement for Ice Rental" and provided information and fliers to the members at their pack meeting. {¶ 5} Jamie Santho, his father, and his siblings attended the fun skate. Jamie was an avid skater, participated in hockey leagues, and took hockey lessons at the Chiller. Jamie's father was a volunteer hockey coach at the Chiller. On the night of the event, Jamie's father permitted Jamie to skate without his hockey helmet. Shortly after arriving, Jamie was racing with his friend, Colin Innes, from board to board. When Jamie looked over his shoulder to see where Colin was, he crashed into the boards and suffered a skull fracture and concussion. Appellants allege that Bennett had organized the relay race against the rules of the Chiller. {¶ 6} Appellants filed suit against BSA, POPLC, SKC, the Chiller, and Bennett in 1997. Appellants dismissed their suit pursuant to Civ.R. 41 and refiled on October 1, 2002, seeking recovery for claims of negligence, reckless/intentional conduct, respondeat superior, and loss of consortium. The trial court granted summary judgment to all appellees on the claim for negligence, under the doctrine of primary assumption of the risk. The trial court also granted summary judgment to BSA, SKC, and POPLC for the claim of recklessness, on the grounds that Bennett was not an agent of the organizations and, therefore, no liability could be imputed. The Chiller also was granted summary judgment on plaintiffs' recklessness claim. The trial court denied Bennett summary judgment on the recklessness claim, and the issue proceeded to trial. {¶ 7} The matter was tried on February 28, March 1, and March 2, 2005. At the close of arguments on March 2, the trial court granted Bennett's motion for a directed verdict. {¶ 8} Appellants timely appealed and assert four assignments of error: *Page 33 I. The trial court committed reversible error by granting defendant Margaret Bennett a directed verdict after the close of plaintiffs' case. Plaintiffs presented sufficient evidence to permit the jury to consider the issue of whether defendant Bennett's conduct was reckless. II. The trial court committed reversible error by granting summary judgment on plaintiffs' recklessness claims against defendants Boy Scouts of America, Simon Kenton Council, Prince of Peace Lutheran Church and Central Ohio Ice Rinks, Inc/The Chiller because it erroneously held that Margaret Bennett was not an agent of any of the aforementioned defendants, but assuming arguendo she was, the court erroneously held further that principals are not vicariously Habile [sic] for the reckless acts of its agents. III. The trial court committed reversible error by granting summary judgment on plaintiff's [sic] negligence claims against defendants Bennett, Boy Scouts of America, Simon Kenton Council, Prince of Peace Lutheran Church, and Central Ohio Ice Rinks, Inc/The Chiller because the court erroneously relied on Gentry v. Craycraft (2004), 101 Ohio St.3d 141 [802 N.E.2d 1116], and misapplied the doctrine of primary assumption of the risk to the facts in this case. IV. Gentry v. Craycraft (2004) 101 Ohio St.3d 141 [802 N.E.2d 1116] [sic] is unconstitutional because it deprives citizens of the state of Ohio, and in this case plaintiffs, rights under Article I, Sections 5 and 16 of the Ohio Constitution. {¶ 9} Appellate review of motions for summary judgment is de novo. The moving party bears the burden of proving that (1) no genuine issues of material fact exist, (2) the moving party is entitled to summary judgment as a matter of law, and (3) reasonable minds can come to only one conclusion, which is adverse to the nonmoving party. Civ.R. 56. When the evidence supports a motion for summary judgment, the nonmoving party must present specific facts beyond the pleadings to show that a genuine issue of material fact exists and, therefore, the moving party is not entitled to judgment as a matter of law.Dresher v. Burt (1996), 75 Ohio St.3d 280,662 N.E.2d 264. {¶ 10} Appellate review of directed verdicts is also de novo. Under Civ.R. 50(A)(1), a motion for directed verdict may be made upon the opening statement of the opponent, at the close of opponent's evidence, or at the close of all evidence. If, after construing the evidence in a light most favorable to the nonmoving party, the trial court finds that reasonable minds can come to but one conclusion, which is adverse to the nonmoving party, the trial court may direct a verdict in favor of the moving party. Civ.R. 50(A)(4). When considering the evidence, the trial court may not evaluate the weight of the evidence or the credibility of the witnesses. Only the relevancy of the testimony may be *Page 34 considered. Gibbs v. Village of Girard (1913),88 Ohio St. 34, 102 N.E. 299. A directed verdict presents a question of law, not one of fact. O'Day v. Webb (1972),29 Ohio St.2d 215, 58 O.O.2d 424, 280 N.E.2d 896. Therefore, the sole determination for the court is whether the evidence presented is sufficient to present the case to the jury. Ruta v.Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66,23 O.O.3d 115, 430 N.E.2d 935. {¶ 11} Assignments of error one and three contest the trial court's determination on summary judgment that the doctrine of primary assumption of the risk applied to the facts of this case and its subsequent grant of a directed verdict in Bennett's favor on the sole remaining issue of recklessness, an exception to primary assumption of the risk. Due to the interrelated nature of these two issues, we consider them first. {¶ 12} In their third assignment of error, appellants object to the trial court's application of primary assumption of the risk to this case. Under the doctrine of primary assumption of the risk, an individual injured in the course of a recreational activity is presumed to have assumed the ordinary risks of that activity unless it can be shown that another actor acted recklessly or intentionally in causing the injury. Marchetti v. Kalish (1990), 53 Ohio St.3d 95,559 N.E.2d 699; Gentry v. Craycraft,101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 1116. The doctrine serves to remove liability for negligence under these circumstances. The trial court applied the three-part test for primary assumption of the risk in sporting events set forth in Gallagher v.Cleveland Browns Football Co., Inc. (1994),93 Ohio App.3d 449, 638 N.E.2d 1082, reversed on other grounds,74 Ohio St.3d 427, 659 N.E.2d 1232. The test requires that (1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game. {¶ 13} It is foreseeable that any time an individual, regardless of skill, steps onto ice, they risk falling or coming into contact with the barriers that set the perimeter of the skating surface. It is foreseeable that any time an individual falls on ice, or strikes the perimeter boards, they risk injury. Therefore, every time Jamie Santho went onto the ice, either to play hockey or to participate in any other activity, he assumed the risk of falling or running into the perimeter boards and injuring himself. There is no question that Jamie was participating in a recreational activity at the time he was injured. Falling is an ordinary danger of ice skating. Colliding with the perimeter boards is an ordinary danger of ice-rink skating. It was during the course of ice skating and participating in the relay race that Jamie was injured. The appellant's age and ability to appreciate the danger involved is immaterial to the doctrine of primary assumption of the risk. Only the conduct of the appellee is relevant to recovery. Gentry, 101 Ohio St.3d 141,2004-Ohio-379, 802 N.E.2d 1116. *Page 35 {¶ 14} Appellants further argue that the trial court erred in applying the doctrine of primary assumption of the risk to the facts herein because Bennett was not a participant in the relay race.1 They argue that case law has applied the doctrine only in circumstances in which the defendant is another participant. However, a recreation provider ordinarily owes no duty to a participant or spectator of an active sport to eliminate the risks inherent in the sport.Gallagher, 93 Ohio App.3d 449, 638 N.E.2d 1082. Here, Bennett organized the fun skate for Pack 210, as she had on several previous occasions. That was her main project for the pack. Therefore, Bennett qualifies as a recreation provider. Bennett is relieved of liability under the doctrine of primary assumption of the risk even though she was a nonparticipant in the relay race. Based upon the case law and the facts of this case, we find that the trial court properly applied the doctrine of primary assumption of the risk and properly granted summary judgment in favor of appellees on appellants' negligence claim. Appellants' third assignment of error is not well taken and is overruled. {¶ 15} Under the first assignment of error, we must determine whether sufficient evidence was presented at trial to raise a jury question of whether Bennett acted recklessly when she organized the fun skate relay race. Appellants argue that the evidence presented on motion for summary judgment and the evidence presented at trial was substantially the same. Appellants state that if the trial court found a genuine issue of material fact on the issue of recklessness when ruling on the motion for summary judgment, that same evidence was sufficient to present a question for the jury on the same issue at trial. Appellants reason that the trial court could not be correct in both instances. {¶ 16} Motions for summary judgment and for directed verdict address the same issue, albeit at different times during the process of litigation. Whether in summary-judgment proceedings or during trial, the ultimate issue under either Civ.R. 56 or 50 is whether the evidence is sufficient to present an issue for determination by the trier of fact. Summary judgment raises this question prior to trial; directed verdict raises the question during trial. A court does not consider the weight of the evidence or credibility of the witnesses in ruling on either a motion for summary judgment under Civ.R. 56, or in ruling on a motion for directed verdict under Civ.R. 50. Turner v. Turner (1993), *Page 36 67 Ohio St.3d 337, 617 N.E.2d 1123; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467.2 The question is whether there is sufficient evidence to create a genuine issue for a jury to decide. {¶ 17} When a motion for summary judgment is denied because the evidence demonstrates that a jury issue exists, and that same evidence is later presented at trial, logically, it would appear that the same result should obtain and a motion for directed verdict should be overruled.3 However, the result of the first assignment of error is not dictated by a pretrial decision on summary judgment or by whether the same or additional evidence was available at trial. Instead, the ultimate issue presented by the first assignment of error is whether the trial court was correct in granting a directed verdict at the close of appellants' case. As discussed from the evidence presented at trial, we find that reasonable minds could come to but one conclusion upon the evidence and that conclusion is that Bennett did not act recklessly during the fun skate relay race. {¶ 18} Appellants' claim that Bennett acted recklessly arises from the relay race itself and what appellants feel was the violation of a posted rule that prohibited racing. Based on the evidence presented in the proceedings for summary judgment, the trial court determined that genuine issues of material fact existed as to whether Bennett was reckless in organizing the relay race and in permitting Jamie to participate without a helmet.4 The trial court determined that there was a genuine issue of whether Bennett acted recklessly based primarily upon two factors: the sign at the ice rink that prohibited racing and the lack of helmets for the participants. {¶ 19} Ohio has adopted the definition of recklessness contained in the Restatement of the Law 2d, Torts (1965), Section 500. Marchetti, 53 Ohio St.3d at 96,559 N.E.2d 699, fn. 2: *Page 37 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 physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Furthermore, the Restatement notes that simply violating a statute or rule is not enough to constitute a reckless disregard for safety. The violation of the rule must (1) be intentional and (2) be recognized as resulting in a significantly higher risk that serious harm will occur. Id. at Section 500(e). A plaintiff cannot recover from any injuries that stemmed from "conduct that is a foreseeable, customary part" of the activity in which the plaintiff was injured. Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104, 559 N.E.2d 705. {¶ 20} Turning to the facts of this case, the question presented is whether Bennett was reckless in organizing the relay race in which Jamie was injured. More specifically, did Jamie's injury stem from conduct — the relay race — that was a foreseeable part of the activity? We have already determined that Jamie assumed the risk of falling or coming into contact with the perimeter boards and injuring himself when he began skating and again when he voluntarily took part in the relay race. To be considered reckless, Bennett's conduct in organizing the fun skate relay race had to create an unreasonable risk of physical harm to another — a risk substantially greater than that which is necessary to make that conduct negligent. {¶ 21} From trial testimony and evidence, we know that there is a sign posted in the Chiller that prohibits racing. Warren Weber, the building supervisor at the time of Jamie's accident, stated that the "no racing" rule applied to both public and private skating events. However, Weber also testified that the rule was relaxed during private parties. He further stated that even if the private party did not have rink guards, "[w]e would never knowingly allow an unsafe condition. I think our employees knew what unsafe and safe were or were not and would not allow an unsafe condition to go on." Weber said that if he saw individuals racing from board to board, he would take into account the ability of the skaters in determining whether the activity was safe enough to continue. Weber testified that at the time of the fun skate, there were other people working at the Chiller, even though they were not working as rink guards for the fun skate. There was no evidence that anyone on duty at the time of the accident thought the activities were unsafe. Indeed, Richard Pretzloff, a Chiller employee and father of one of the Cub Scouts attending the fun skate, was present during the relay races. Pretzloff testified that he allowed his own son to participate in the relay race. *Page 38 {¶ 22} Additionally, it is undisputed that Bennett took certain precautions when she initiated the relay race. Bennett organized the activity and divided up the ice because the more skilled skaters were being disruptive and posed a threat of harm to parents and children who were not as proficient at ice skating. Furthermore, only those of certain skill levels were allowed to participate in the races. Bennett set the rules and supervised the first race. According to her testimony, there was no evidence of dangerous activity. After the first race, she left the immediate area and left Mr. Pretzloff in charge of the second race. Even if events in the second race increased the risk of harm, there is no evidence that Bennett was aware of them or that she allowed the races to continue despite some increased risk to the participants. In sum, we cannot say that Bennett's conduct in organizing the relay race was in reckless disregard of the safety of another. {¶ 23} Appellants further argue that Bennett was reckless in not requiring Jamie to wear a helmet. No evidence was submitted to support this claim. Jamie's father testified that he allowed his son to participate in the recreational skate without a helmet. Other testimony presented at trial showed that no fun-skate participants were wearing helmets and that helmets are typically worn only while playing hockey. Finally, there was evidence that requiring helmets is not an industry standard. {¶ 24} We find that as a matter of law, the evidence does not support a claim of recklessness, regardless of how generously it may be viewed in favor of appellants. Therefore, the trial court did not err in granting a directed verdict for Bennett on the issue of recklessness. Appellants' first assignment of error is not well taken and is overruled. {¶ 25} Under their second assignment of error, appellants contest the trial court's determination on summary judgment that BSA, SKC, POPLC, and the Chiller were not vicariously liable for Bennett's reckless acts because she was not an agent of those organizations. Because we have found as a matter of law that Bennett did not act recklessly, this argument has been rendered moot. {¶ 26} Even if the evidence supported a finding that Bennett was reckless, under the facts of this case, BSA, SKC, and POPLC were not vicariously liable because the evidence supports the trial court's determination that Bennett was not an agent of those organizations. Appellants rely on Mayfield v.Boy Scouts of Am. (1994), 95 Ohio App.3d 655,643 N.E.2d 565, a case involving injuries to a scout while on a camping trip under the direction of a Boy Scout volunteer. InMayfield, the campout was at a facility controlled and operated by the Boy Scouts and located on land owned by the Boy Scouts. The Boy Scouts required all volunteers who were in charge of campouts to purchase and wear official Boy Scout uniforms, accessories, and supplies and to follow Boy Scout *Page 39 policies, procedures, rules, and regulations. Additionally, inMayfield, there was evidence that the Boy Scouts retained a degree of direction and control over the volunteer who supervised the campout, and Boy Scout insurance policies covered the acts of the volunteer. Finally, in that case, there was evidence that the plaintiffs relied upon the affirmative acts and representations of the Boy Scouts, which led the plaintiffs to believe that the volunteer was acting as an agent of the Boy Scouts. {¶ 27} In contrast, there is no evidence to suggest that Bennett was acting as the agent of the BSA, SKC, or POPLC. Bennett organized the family fun skate outside the framework of the BSA organization. The fun skate was held at a facility completely independent of the BSA. There is no evidence that the BSA, SKC, or POPLC were aware of or had any control over the conduct of either Bennett or the fun skate. There is no evidence that Bennett acted as an agent of the Boy Scouts or any of the other organizations. We find Mayfield to be distinguishable on its facts. {¶ 28} Appellants also argue that the Chiller is liable for Bennett's actions under the doctrine of respondeat superior. Appellants contend that because Bennett was an employee of the Chiller, the Chiller was liable for her actions committed during the course and scope of her employment with the Chiller. However, at the time of the accident, Bennett was not being paid by the Chiller. Actions within the "course of employment" are, by definition: Events that occur or circumstances that exist as a part of one's employment; esp., the time during which an employee furthers an employer's goals through employer-mandated directives. Black's Law Dictionary (7th Ed.1999) 356. Bennett's employment duties as a skating-school director at the Chiller consisted of training instructors and scheduling. She also gave private skating lessons. However, all of these activities were directed by the Chiller, by whom she was paid. At the time of the fun skate, Bennett was not being paid by the Chiller. She was not acting as a rink guard. According to the evidence presented by the trial court, rink guards wore distinctive clothing that identified them in that capacity. There is no evidence that Bennett was acting as, or held herself out as, a rink guard for the Chiller. Instead, the evidence supports only that Bennett was acting as a den mother of Pack 210 and organized the fun skate for Pack 210. She was there as a volunteer for Pack 210 and as a parent. Therefore, the trial court did not err in finding that there was insufficient evidence to show that Bennett was an agent of the Chiller and acting on behalf of the Chiller at the time Jamie was injured.5 Appellants' second assignment of error is not well taken and is overruled. *Page 40 {¶ 29} In their fourth assignment of error, appellants contend that Gentry, 101 Ohio St.3d 141,2004-Ohio-379, 802 N.E.2d 1116, is a violation of Sections 5 and16, Article I of the Ohio Constitution. Appellants assert that by relying on Gentry, the trial court violated their right to trial by jury and a remedy by due course of law.Gentry is a decision of the Supreme Court of Ohio. It is not within our authority to declare that a determination of a superior court is invalid. {¶ 30} Furthermore, appellants failed to raise this issue at the trial court. Therefore, the issue has been waived for purposes of appeal. "It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." State v. Childs (1968), 14 Ohio St.2d 56,61, 43 O.O.2d 119, 236 N.E.2d 545, citing State v.Glaros (1960), 170 Ohio St. 471, 11 O.O.2d 215,166 N.E.2d 379, paragraph one of the syllabus. Appellants' fourth assignment of error is overruled. {¶ 31} Based upon the foregoing, appellants' four assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. BROWN and SADLER, JJ., concur. 1 The Santhoses argue that negligent supervision should apply instead. For a nonparticipant to be found liable in a recreational activity, it must be found that the nonparticipant either (1) allowed an activity to take place absent any management or (2) allowed a participant with a known propensity for violence to engage in the activity. Rodriguez v.O.C.C.H.A. (2000), Mahoning App. No. 99 C.A. 30,2000 WL 1486449; Kline v. OID Assoc., Inc. (1992),80 Ohio App.3d 393, 609 N.E.2d 564. Bennett managed the first race, and the evidence indicates that Richard Pretzloff supervised the second race. Furthermore, none of the participants exhibited violent behavior. Therefore, negligent supervision does not apply in this case. 2 Appellants point out that at trial, during discussions of the court and counsel on the question of directing a verdict, the court commented on the credibility of the testimony of a witness and noted reactions of the faces of the jurors during testimony. However, we are satisfied that when the comments are viewed in the context of the discussion between court and counsel, the comments were not a factor in the determination to grant a directed verdict. 3 Compare Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St.2d 116 at 126, 18 O.O.3d 354,413 N.E.2d 1187, fn. 8 (Brown, J., concurring). "The same quantum of evidence can require that a motion for summary judgment be denied under Civ.R. 56(C) because there exists `a genuine issue as to * * * (a) material fact,' and that a motion for directed verdict under Civ.R. 50(A)(4) be granted because `reasonable minds could come to but one conclusion upon the evidence.'" 4 While the evidence on whether Bennett organized the relay race was in conflict, we must construe that evidence in the light most favorable to appellants and therefore assume that Bennett did organize the race. 5 Weber indicated that anywhere from four to ten people could have been working during the fun skate. The fun skate was not held as an after-hours event. If it were, there would be some argument as to whether Bennett was an agent of the Chiller by virtue of being the only employee of the Chiller in the building, aside from Richard Pretzloff. However, this was not the case. *Page 41

2016-07-06 06:41:57.903097+00

McLaughlin

The operator of a tavern known as Glen's Grill, in Cleveland, was cited for having violated Section 4301.22 of the Revised Code, particularly subsection B, which provides, "No sales shall be made to an intoxicated person." Upon hearing had, the Board of Liquor Control found that the charges were well taken and supported by the evidence. The permits of the Grill were suspended for a period of fourteen days. This suspension order was appealed to the Common Pleas Court of Franklin County, which court reversed the Board of Liquor Control and reinstated the permits. The Board of Liquor Control appeals to this court from the reversal and the reinstatement. Briefly, the facts are as follows: Two Cleveland police officers, upon entering this tavern, observed one Pete Goldauska sitting on a stool at the bar with his head resting in his arms. He repeatedly raised his head up and dropped it back onto his arms. One of the officers went to a telephone booth to contact his headquarters. After about a minute a waitress served Goldauska a drink. One of the officers testified that the drink was poured from a whiskey bottle together with a coke chaser, for which he paid the waitress fifty cents. Thereupon, the two policemen arrested Goldauska who then flourished his arms and said, "I'm not drunk. I'm crazy." The officers then observed him to have a strong odor of alcohol about his breath, and his eyes were bloodshot. One of the officers testified that, at about this time, the operator *Page 511 of the tavern was heard to exclaim, "He's drunk, but I told my barmaid not to serve anybody who is intoxicated." These remarks were denied by the operator at the hearing. The Board of Liquor Control assigns three errors of the Common Pleas Court: "1. In finding that the order of the Board of Liquor Control was not supported by reliable, probative and substantial evidence and not in accordance with law. "2. In reversing and dismissing the order of the Board of Liquor Control. "3. Other error appearing on the face of the record." The Common Pleas Court (Harter, J.) concluded that it was necessary to prove intent and then held that intent had not been shown. It was also held that there was insufficient proof that the liquid sold to Goldauska was in fact intoxicating liquor. The assigned errors present two questions for our decision: "1. Where a holder of a liquor permit is cited for violation of Section 4301.22 (B), Revised Code, is it necessary for the Department of Liquor Control to prove the element of intent. "2. Where the holder of a liquor permit is cited for violation of Section 4301.22 (B), Revised Code, is it necessary for the department to prove that the intoxicated person was so far under the influence of alcohol that his conduct and demeanor were not up to standard and that his intoxication was reasonably discernible to a person of ordinary experience." The recent case of State v. Morello, 169 Ohio St. 213,158 N.E.2d 525, is dispositive of both questions. The second paragraph of the syllabus reads as follows: "2. Under Section 4301.22 (B), Revised Code, making an offense the sale of intoxicants to an intoxicated person, which statute makes no reference to scienter, it is not necessary in order to obtain a conviction to prove that the accused knew that the person to whom he is charged with having sold intoxicants was intoxicated, where the means of such knowledge were available to the accused or the common good imposed a duty upon him to obtain it. * * *" In that opinion, Judge Bell reasoned that the injunction against the sale of intoxicants to an intoxicated person (Section *Page 512 4301.22 [B], Revised Code) is couched in almost identical language to that which prohibits the sale of intoxicants to a minor (subsection [A] of the same section) and then states that the authorities are numerous in holding that in a prosecution for selling liquor to a minor, since the statute does not expressly or by clear implication make ignorance of minority a defense, such defense is not available. He then states that there is no distinction between selling liquor to a minor and that of selling such liquor to an intoxicated person, and that, ignorance that the buyer was a minor not being a defense, ignorance that the buyer was an intoxicated person is not a defense either. Then Judge Bell, at page 216, uses these important words which we emphasize: "* * * The common good, in each instance, imposes a duty uponthe seller to ascertain the status or condition of the person towhom the sale is made, and if he persists in the sale he does soat his peril." In our opinion, the finding and holding of the Board of Liquor Control is supported by reliable, substantial and probative evidence, and the first and second assignments of error are sustained. As to the other conclusion of the Common Pleas Court, finding that there was insufficient proof that the liquid sold to Goldauska was in fact intoxicating liquor, we are unable to agree. It was not necessary to prove by direct evidence the alcoholic content of the beverage sold, but it is sufficient if the same is shown by indirect or circumstantial evidence. It was testified here that the drink was poured from a whiskey bottle. This in itself is strong circumstantial evidence that the drink was an intoxicating beverage. In addition thereto, the drink was referred to as a "shot." Such term connotes alcoholic content in concentrated form. The further circumstance that it was served with a coke is again strong evidence that the alcoholic content of the drink was concentrated to such an extent that it required some sort of chaser. We, therefore, are of the opinion that the finding of the Board of Liquor Control was supported by reliable, probative and substantial evidence; and that the drink sold was in fact intoxicating liquor. *Page 513 The judgment of the Common Pleas Court will be reversed and the decision of the Board of Liquor Control will be affirmed. Judgment reversed. BRYANT, P. J., and DUFFY, J., concur. McLAUGHLIN, J., of the Fifth Appellate District, sitting by designation in the Tenth Appellate District.

2016-07-06 06:41:58.059392+00

Abele

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 22 This is an appeal from a judgment of conviction and sentence entered by the Meigs County Common Pleas Court finding Robert Bush, defendant below and appellant herein, guilty of passing a bad check in violation of R.C. 2913.11(C). Appellant assigns the following errors: First Assignment of Error: "The court erred in failing at the pretrial held October 16, 1991 to inquire fully into the circumstances which had resulted in the appellant being unable to obtain counsel since the arraignment held September 16, 1991." Second Assignment of Error: *Page 23 "The court erred in failing on the date of trial, November 18, 199[1], to inquire fully before the commencement of trial as to why the appellant had been unable to obtain counsel." Third Assignment of Error: "The court erred at sentencing on August 18, 1993 in summarily rejecting appellant's on record requests for the appointment of counsel and in ruling that appellant had waived any right he had to the appointment of counsel." Fourth Assignment of Error: "The prosecuting attorney erred during closing argument, commiting [sic] misconduct mandating reversal." Fifth Assignment of Error: "The court erred in giving an ambiguous instruction which was unclear as to whether notice of dishonor of a check created a rebuttable presumption or a conclusive presumption." Sixth Assignment of Error: "The court erred in including in its instructions an instruction on `purpose' which was unnecessary and calculated to confuse the jury." On December 31, 1988, appellant wrote a $6,877.50 check without having sufficient funds in his account to cover that amount. On August 26, 1991, the Meigs County grand jury indicted appellant on one count of passing a bad check in violation of R.C. 2913.11(C), a third degree felony. On November 18, 1991, the court held a jury trial. The jury found appellant guilty as charged in the indictment. Appellant failed to appear at the first scheduled sentencing hearing. Consequently, the trial court issued a bench warrant for appellant's arrest. On August 18, 1993, nearly two years after his conviction, appellant appeared for sentencing. The court sentenced appellant to two years in a state penal institution. Appellant filed a timely notice of appeal. I Appellant's first three assignments of error involve the fact that he represented himself during the proceedings below. In his first and second assignments of error, appellant asserts the trial court erred by failing to inquire fully concerning why appellant had been unable to obtain counsel. In his third assignment of error, appellant asserts the trial court erred at the sentencing hearing by rejecting appellant's request for counsel and by stating that appellant *Page 24 had waived his right to counsel. We will address appellant's first three assignments of error jointly. In support of these assignments of error, appellant citesState v. Tymcio (1975), 42 Ohio St.2d 39, 71 O.O.2d 22,325 N.E.2d 556, for the proposition that a trial court has a duty "to inquire fully into the circumstances impinging upon an accused's claimed inability to obtain counsel." Id., at paragraph three of the syllabus. We note that in Tymcio the court wrote as follows: "We hold that a preliminary determination of indigency can not be permitted to foreclose a redetermination of eligibility for assigned counsel, when, at a subsequent stage of a criminal proceeding, new information concerning the ability or inability of the accused to obtain counsel becomes available. It is then the duty of the trial court to inquire fully into the circumstances impinging upon the defendant's claimed inability to obtain counsel * * *." Id., 42 Ohio St.2d at 44, 71 O.O.2d at 24-25, 325 N.E.2d at 560. When new information becomes available concerning the ability of an accused to obtain counsel, the court must inquire fully into the circumstances. See State v. Purnhagen (Feb. 17, 1994), Adams App. No. 93-CA-551, unreported, at fn. 3, 1994 WL 59263;State v. Baisden (May 28, 1991), Jackson App. No. 612, unreported, 1991 WL 99630. We note that during the September 16, 1991 arraignment hearing, appellant and the court had the following discussions on the record: "JUDGE CROW: You have a right to have retain[ed] counsel in this case. So you wish to have retained counsel? "BOB BUSH: Not at this moment, Your Honor. "JUDGE CROW: All right. Can you afford to retain counsel? "BOB BUSH: Yes, Your Honor. "* * * "JUDGE CROW: * * * Who do you anticipate getting as an attorney, or do you know? "BOB BUSH: Your Honor, if it would please the Court, at this time I ahh ... have two (2) in mind, but don't know which one I will call upon." During the October 16, 1991 pretrial hearing, appellant and the court had the following discussions on the record: "JUDGE CROW: Mr. Bush you have told us that you run a construction company or a maintenance company and you are in partnership with your son ... and the company made forty-two thousand dollars ($42,000.00) last year. Is that correct? *Page 25 "BOB BUSH: That is approximate, Your Honor, yes. "JUDGE CROW: As is your situation similar this year as it was last year? "BOB BUSH: Yes, Your Honor ... hopefully a little more. "* * * "JUDGE CROW: Do you think you will have time to get an attorney by then [November 18, 1991], Sir? "BOB BUSH: Yes, Sir. Ample time, Your Honor. "JUDGE CROW: All right. Now, don't be coming in here ahh * * * a week before trial and say you don't have any attorney. "BOB BUSH: That won't be the case, Your Honor. "JUDGE CROW: All right. So you will have no problem getting an attorney. Is that correct? "BOB BUSH: Yes, Sir, Your Honor." During both hearings, appellant assured the trial court that he would have no problem obtaining counsel. Rather than retaining an attorney to represent him at the November 18, 1991 trial, appellant represented himself. The record transmitted on appeal demonstrates that appellant gave the trial court no new information concerning his ability or inability to obtain counsel. Appellant did not request the court to assist him in obtaining counsel. Appellant did not request another continuance to enable him to obtain counsel. Appellant did not alert the trial court to any obstacles he might have faced when attempting to obtain counsel. Under the circumstances of the case sub judice, we find no merit to appellant's first and second assignments of error. At both the arraignment and the pretrial hearings, the court asked appellant about his plans to obtain counsel. Appellant unambiguously told the court that he was able to obtain counsel. The court granted appellant's request for a continuance to enable him more time to obtain counsel. Appellant did not request any further continuances. Appellant remained silent on the issue at trial. We find the trial court correctly concluded that appellant waived his right to assistance of counsel at trial. In his third assignment of error, appellant argues that the trial court erred by not granting the requests he made for counsel at the August 18, 1993 sentencing hearing. The record reflects the following discussion between the trial court and appellant: "JUDGE CROW: It appears that he did not show up at the sentencing date. Mr. Bush, why didn't you show up? *Page 26 "BOB BUSH: In response to that, Your Honor, if the Court please, my constitutional rights were grossly violated. I was denied the right of an attorney and at this time I still ask for another one * * * that's why I didn't show up * * * I've been trying to get the money together to hire me an attorney * * * to get this thing resolved. "JUDGE CROW: It is my understanding that you waived your right to an attorney and tried this case yourself. * * * "BOB BUSH: * * * I would the presence of an attorney before I am sentence. [Sic.] "JUDGE CROW: You have waive [sic] that right as far as the Court is concerned. * * *" We agree with appellant that the trial court erred at the sentencing hearing by summarily rejecting appellant's request for appointment of counsel. When appellant stated that he had "been trying to get the money together" to hire an attorney, appellant gave the court new information concerning his ability or inability to retain counsel. Since the sentencing hearing was a "subsequent stage of a criminal proceeding," Tymcio, supra, required the trial court to inquire fully into the circumstances impinging upon appellant's newly claimed inability to obtain counsel. Accordingly, based upon the foregoing reasons, we overrule appellant's first and second assignments of error and we sustain appellant's third assignment of error. In accordance with our disposition of the third assignment of error, we reverse and remand this cause to the trial court to conduct a hearing to inquire fully into the circumstances impinging upon appellant's claimed inability to obtain counsel at the time of the sentencing hearing below. If the trial court determines, consistent with this opinion, that appellant was entitled to appointed counsel at the time of the sentencing hearing below, then the court must conduct a new sentencing hearing. The new sentencing hearing shall include a determination of appellant's ability or inability, at the time of the new sentencing hearing, to obtain counsel. If the court determines that appellant was not entitled to appointed counsel at the time of the sentencing hearing below, then the court need not conduct a new sentencing hearing, but may reenter the judgment of conviction and sentence. II In his fourth assignment of error, appellant asserts the prosecutor committed misconduct during the closing arguments by making the following comments: *Page 27 "And * * * if he denies that, ladies and gentlemen, he's lying * * * but he's already a thief, so I suppose he'll lie about that too." "* * * "Well, Ladies and Gentlemen, the Defendant has succeed[ed] in being able to not talk to you, but testify here in closing arguments. He hasn't subjected himself to cross-examination. * * *" Appellant also contends the prosecutor committed misconduct by misstating the law by implying, in the following comment, that failure to pay a bad check after notice of dishonor creates a conclusive, rather than rebuttable, presumption of knowledge that the check would be dishonored: "Anybody can write a check * * * or a bad check; anyone can make a wrong notation or not get the deposit in quick enough and the checks * * * the bank sends you back sends it back with NSF on it * * * and that's not a crime. It becomes a crime if you don't do something about it. * * *" First, we note appellant raised no objection at trial to the first and third comments quoted above. Crim.R. 52(B), the "plain error" rule, states that although a defendant may have failed to raise a timely objection to an error affecting a substantial right, courts may notice the error. Crim.R. 52(B) provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The Ohio Supreme Court has frequently limited the application of the plain error rule. In State v. Landrum (1990), 53 Ohio St.3d 107,111, 559 N.E.2d 710, 717, the court quoted and followed State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178,372 N.E.2d 804, as follows: "`Notice of plain error under Crim.R. 52(B) is to be takenwith the utmost caution, under exceptional circumstances andonly to prevent a manifest miscarriage of justice.'" (Emphasis added.) The plain error rule should not be invoked unless, but for the error, the outcome of the trial would clearly have been otherwise. See State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332; State v. Cooperrider (1983), 4 Ohio St.3d 226, 4 OBR 580, 448 N.E.2d 452; State v. Wolery (1976), 46 Ohio St.2d 316, 75 O.O.2d 366, 348 N.E.2d 351, certiorari denied (1976), 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 301. We may invoke the plain error rule only if we find (1) that the prosecutor's comments denied appellant a fair trial, (2) that the circumstances in the instant case are exceptional, and (3) that reversal of the judgment below is required to prevent a manifest miscarriage of justice. *Page 28 Second, we note that the trial court sustained appellant's objection to the prosecutor's comment concerning appellant's failure to subject himself to cross-examination. When sustaining appellant's objection, the trial court instructed the jury to disregard the comment. During the general jury instructions, the trial court instructed the jury that a defendant has a constitutional right not to testify, and the fact that appellant did not testify "must not be considered for any purpose whatsoever." We must presume the jury followed the trial court's instructions and disregarded the prosecutor's comment concerning appellant's failure to subject himself to cross-examination. SeeState v. Murphy (1992), 65 Ohio St.3d 554, 584, 605 N.E.2d 884,907; Pang v. Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d 1313, paragraph four of the syllabus. Last, we note that the test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. State v. Smith (1984),14 Ohio St.3d 13, 14, 14 OBR 317, 318-319, 470 N.E.2d 883, 885. The effect of counsel's misconduct must be considered in light of the whole record. See State v. Durr (1991), 58 Ohio St.3d 86,94, 568 N.E.2d 674, 683; State v. Maurer (1984), 15 Ohio St.3d 239,266, 15 OBR 379, 401-403, 473 N.E.2d 768, 792-93; State v.Jackson (June 13, 1991), Jackson App. No. 633, unreported, 1991 WL 110221. A prosecutor's misconduct at trial can be made a ground of reversible error only if appellant was found to have been denied a fair trial. Durr, supra. In the case at bar, it is clear beyond a reasonable doubt that absent the prosecutor's remarks, appellant would still have been found guilty. See State v. Landrum, supra, 53 Ohio St.3d 107, 559 N.E.2d 710. Uncontroverted evidence presented at trial established that appellant wrote a bad check with knowledge that he had insufficient funds in his account to cover the check. When the evidence presented at trial is taken as a whole, the prosecutor's comments, if error, constitute merely harmless error. In conclusion, we find the prosecutor's comments did not deny appellant a fair trial. Accordingly, based upon the foregoing reasons, we overrule appellant's fourth assignment of error. III In his fifth assignment of error, appellant asserts that the trial court erred by giving what appellant contends is an ambiguous jury instruction concerning whether notice of dishonor of a check creates a rebuttable presumption or a conclusive presumption. In his sixth assignment of error, appellant asserts the trial court erred by including an instruction on purpose in the jury instructions. We will address these two assignments of error jointly. *Page 29 We note that appellant failed to object at trial to either jury instruction. Crim.R. 30(A) provides that a party may not assign as error the failure to give an instruction unless the party objects before the jury retires to deliberate. See Statev. Underwood, supra, 3 Ohio St.3d 12, 3 OBR 360,444 N.E.2d 1332. Assuming, arguendo, the jury instructions constituted error, we do not believe the circumstances in the case sub judice are sufficiently exceptional to require invocation of Crim.R. 52(B), the "plain error" rule, to prevent a manifest miscarriage of justice. See our discussion of the plain error rule under appellant's fourth assignment of error, supra. Accordingly, based upon the foregoing reasons, we overrule appellant's fifth and sixth assignments of error. Judgment affirmed in part,reversed in partand cause remanded. STEPHENSON and GREY, JJ., concur.

2016-07-06 06:41:57.294162+00

McMonagle

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 717 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 718 {¶ 1} Plaintiffs-appellants, Victorina Manno and Michael Yasenchack, appeal from the judgment of the trial court denying their motion for summary judgment and granting, in part, the motion for summary judgment of the defendants-appellees, St. Felicitas Elementary School, Ann Marie Woyma, and Fr. Richard Bober. For the following reasons, we affirm. {¶ 2} Manno was hired by St. Felicitas School in 1993 as a fourth-grade teacher. She taught at the school without interruption from 1993 until July 8, 2003, when she was terminated by Fr. Bober. In 1998, while teaching at the school, Manno, a baptized Catholic, divorced her first husband, who is also a baptized Catholic. In November 2001, Manno and Yasenchack, also a baptized Catholic, began dating. The two became engaged in December 2002 and married on June 21, 2003. {¶ 3} Prior to marrying Yasenchack, Manno investigated the possibility of obtaining an annulment of her first marriage. However, due to her disagreement with the concept of annulments, Manno decided not to obtain an annulment of her first marriage prior to marrying Yasenchack. During the course of her investigation into the process of obtaining an annulment, Manno discussed annulments with Woyma and Martha Dodd, the school's principal and assistant principal, respectively. Specifically, Dodd, who had recently obtained an annulment, discussed the process with Manno, and Woyma told Manno that she could start the proceedings so she could put all this behind her. {¶ 4} Manno also discussed annulments with Fr. Neil Walter, an associate priest at St. Felicitas Parish, prior to May 19, 2003, when she and Fr. Bober signed her teaching contract for the 2003-2004 school year. The contract required Manno to "respect the spiritual values of the students and to aid in their Christian formation by exemplifying in [Manno's] own actions the characteristics of Christian living." The contract further required Manno to abide by the rules, regulations, and policies of the school as contained in its faculty handbook. The faculty handbook, of which Manno was provided a copy, states that a teacher may be dismissed for, among other things, behavior that is inconsistent with "the teachings and mission of the Catholic Church." {¶ 5} Further, Manno had a discussion with Woyma on June 8, 2003, prior to marrying Yasenchack, during the course of which Manno informed Woyma of her *Page 719 intention to marry Yasenchack that summer. Woyma told Manno that she needed to speak with Fr. Bober. Manno questioned Woyma as to the need to meet with Fr. Bober, to which Woyma responded that she thought it had something to do with cannon law, and offered to set an appointment for Manno with Fr. Bober. Manno declined the offer and told Woyma she would set an appointment with Fr. Bober on her own. {¶ 6} Manno met with Fr. Bober on July 8, 2003, after she and Yasenchack were married. During that meeting, Fr. Bober asked Manno why she had gotten married without first obtaining an annulment of her first marriage. Manno responded that she felt an annulment was not in the best interest of her family. Fr. Bober then terminated Manno's contract because of her failure to obtain an annulment of her first marriage prior to marrying Yasenchack. Manno was 47 years old at the time of her termination. {¶ 7} After Manno's termination, her fourth-grade position was assumed by then 52-year-old Jane Vajda, who previously taught fifth grade at the school. Vajda was replaced by Lisa Roseberry, who was then 48 years old. {¶ 8} Manno filed a complaint in the Cuyahoga County Court of Common Pleas alleging age and gender discrimination, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, breach of contract, implied breach of contract, promissory estoppel, and negligent misrepresentation. The complaint also sought punitive damages and asserted a loss-of-consortium claim on behalf of Yasenchack. {¶ 9} Appellees filed a motion for summary judgment as to all of Manno and Yasenchack's claims. Manno and Yasenchack filed a brief in opposition to appellees' motion for summary judgment and a cross-motion for summary judgment as to all of their claims except gender discrimination and negligent infliction of emotional distress, which they voluntarily dismissed. {¶ 10} The trial court granted summary judgment to appellees on all of Manno and Yasenchack's claims except for the breach-of-contract claim, and denied Manno and Yasenchack's motion for summary judgment on all of their claims. Manno thereafter dismissed her remaining breach-of-contract claim. {¶ 11} Manno and Yasenchack now appeal the judgment of the trial court granting, in part, appellees' motion for summary judgment and denying appellants' cross-motion for summary judgment. {¶ 12} Appellate review of summary judgment is de novo.Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105,671 N.E.2d 241; Zemcik v. La Pine Truck Sales Equip. (1998),124 Ohio App.3d 581, 585, 706 N.E.2d 860. *Page 720 {¶ 13} Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679,653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264. {¶ 14} Once the moving party satisfies its burden, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E); Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383,385, 667 N.E.2d 1197. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992),65 Ohio St.3d 356, 358-359, 604 N.E.2d 138. {¶ 15} With these principles in mind, we consider whether the trial court's judgment granting, in part, appellees' motion for summary judgment and denying appellants' motion for summary judgment was appropriate. {¶ 16} Initially, Manno and Yasenchack contend that the trial court erred by determining that their claims required analysis or interpretation of church doctrine. Similarly, appellees filed a motion to dismiss with this court, arguing that consideration of this appeal would require excessive entanglement with church doctrine. Upon review of the trial court's opinion and order, however, we find that the trial court did not determine that it needed to analyze or interpret church doctrine. Rather, the court stated, "[T]his court distinguishes between those claims that are secular in nature and those that require a canonical study. Whether marriage outside the purview of the Catholic Church is valid or moral is not within this Court's jurisdiction * * *." Further, at another point in its opinion, the trial court stated that it "decline[d] to delve into the cannons of the Church to determine the sanctity of marriage and any correlative sanction. * * * Whether such a distinction [between sexual intercourse outside marriage and remarrying without first obtaining an annulment from the church] merits termination for one and employment for the other is a fine line left for moral theologians. This Court confines itself to the civil law in this case and does not have to reach this issue * * *." Thus, Manno and Yasenchack's contention that the trial court determined that their claims required analysis or interpretation of church doctrine is without merit. Moreover, we can and will address the *Page 721 substantive issues in this case without analyzing or interpreting church doctrine and, therefore, deny appellees' motion to dismiss. A. Age Discrimination {¶ 17} To set forth a prima facie case of age discrimination, Manno must show that (1) she is a member of the statutorily-protected class, (2) she was discharged, (3) she was qualified for the position, and (4) she was replaced by, or that her discharge permitted the retention of, a person not belonging to the protected class. Kohmescher v. Kroger Co. (1991),61 Ohio St.3d 501, 575 N.E.2d 439. {¶ 18} Once a prima facie case of discrimination is established, the employer may overcome the presumption by coming forward with a legitimate, nondiscriminatory reason for the discharge. Id. The employee must then present evidence that the employer's proffered reason was a mere pretext for unlawful discrimination. Manofsky v. Goodyear Tire Rubber Co. (1990),69 Ohio App.3d 663, 668, 591 N.E.2d 752. The employee's burden is to prove that the employer's reason was false and that discrimination was the real reason for the discharge. Wagner v.Allied Steel Tractor Co. (1995), 105 Ohio App.3d 611, 617,664 N.E.2d 987. Mere conjecture that the employer's stated reason was a pretext for intentional discrimination is an insufficient basis for the denial of a summary judgment motion made by the employer. To meet his or her burden in response to such a summary judgment motion, the plaintiff must produce some evidence that the employer's proffered reasons were factually untrue. Powers v.Pinkerton, Inc. (Jan. 18, 2001), Cuyahoga App. No. 76333. {¶ 19} In this case, Manno established the first, second, and third elements of age discrimination, i.e., she is a member of a protected class, since she was 47 years old at the time she was terminated, she was terminated from her position, and she was qualified for her position. However, she failed to demonstrate that she was replaced by a person younger than she, or that her termination resulted in the retention of someone younger. First, Manno was replaced by a woman older than she. Specifically, then 52-year-old Vajda replaced Manno. Vajda was in turn replaced by then 48-year-old Roseberry. {¶ 20} Next, there is no evidence that Manno's 30-year-old teaching partner's continued employment with St. Felicitas, after she became pregnant while unmarried, depended in any way on the termination of Manno. Moreover, even though Manno failed to demonstrate that her termination permitted the retention of an employee who was not a member of the protected class, appellees demonstrated a nondiscriminatory explanation for her termination, i.e., Manno remarried without first obtaining an annulment from the church, an act that the school found inconsistent with the teachings and mission of the Catholic Church. *Page 722 {¶ 21} Thus, the trial court did not err in granting appellees' motion for summary judgment on Manno's age-discrimination claim and denying appellants' motion for summary judgment on that claim. B. Negligence {¶ 22} It is well settled that the elements of an ordinary negligence suit between private parties are (1) the existence of a legal duty, (2) the defendant's breach of that duty, and (3) injury that is proximately caused by the defendant's breach.Mussivand v. David (1989), 45 Ohio St.3d 314, 318,544 N.E.2d 265. Whether there is a duty is a question of law for the court to determine. Id. {¶ 23} "Duty, as used in Ohio tort law, refers to the relationship between the plaintiff and the defendant from which arises an obligation on the part of the defendant to exercise due care toward the plaintiff." Commerce Industry Ins. Co. v.Toledo (1989), 45 Ohio St.3d 96, 543 N.E.2d 1188; see, also,Huston v. Konieczny (1990), 52 Ohio St.3d 214, 217,556 N.E.2d 505. The existence of a duty depends upon the foreseeability of harm: if a reasonably prudent person would have anticipated that an injury was likely to result from a particular act, the court could find that the duty element of negligence is satisfied.Texler v. D.O. Summers Cleaners Shirt Laundry Co. (1998),81 Ohio St.3d 677, 680, 693 N.E.2d 271; Commerce Industry, supra; Menifee v. Ohio Welding Products, Inc. (1984),15 Ohio St.3d 75, 77, 472 N.E.2d 707. {¶ 24} Manno contends that appellees failed to warn her that marrying Yasenchack without first obtaining an annulment of her first marriage would lead to her termination. We find Manno's argument to be without merit. Specifically, Manno has failed to demonstrate that appellees had a legal duty to warn her that remarrying without an annulment would result in her termination. Neither the employment contract nor the faculty handbook created such a duty. Further, we find that the opinions of Manno's expert, Dr. Elliot, did not establish that appellees had a duty. {¶ 25} Accordingly, the trial court did not err in granting appellees' motion for summary judgment on Manno's negligence claim and denying Manno's motion for summary judgment on that claim. C. Intentional Infliction of Emotional Distress {¶ 26} To prevail on an intentional-infliction-of-emotional-distress claim, Manno must show: {¶ 27} "(1) That [appellees] either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to [Manno]; (2) that [appellees'] conduct was so extreme and outrageous *Page 723 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 [appellees'] actions were the proximate cause of [Manno's] psychic injury; and (4) that the mental anguish suffered by [Manno] is serious and of a nature that `no reasonable man could be expected to endure it.'" Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34, 463 N.E.2d 98. See, also, Jarvisv. Gerstenslager Co., 9th Dist. Nos. 02CA0047 and 02CA0048, 2003-Ohio-3165, 2003 WL 21398473. {¶ 28} We hold that Manno failed to establish that appellees' conduct was extreme and outrageous. In Godfredson v.Hess Clark (C.A.6, 1999), 173 F.3d 365, the Sixth Circuit Court of Appeals held that "[a]n employee's termination, even if based on discrimination, does not rise to the level of `extreme and outrageous conduct,' without proof of something more." {¶ 29} Manno argues that appellees conspired behind her back, then offered her a contract for the 2003-2004 school year and terminated it approximately one month before the school year started. We do not find that appellees conspired behind Manno's back. Further, we are unable to find that the fact that Manno's termination came after she had signed her contract and close to the start of the school year was extreme and outrageous. {¶ 30} Thus, the trial court did not err in granting appellees' motion for summary judgment on Manno's intentional-infliction-of-emotional-distress claim and denying Manno's motion for summary judgment on that claim. D. Implied Breach of Contract/Promissory Estoppel {¶ 31} An implied contract arises when the circumstances make it reasonably certain that an agreement was intended.Cuyahoga Cty. Hosps. v. Price (1989), 64 Ohio App.3d 410, 416,581 N.E.2d 1125. In this case, Manno signed a written contract; thus, the trial court properly found that no claim for an implied contract can exist. Similarly, the existence of a written contract barred Manno from maintaining a promissory-estoppel claim. See Gallant v. Toledo Pub. School (1992),84 Ohio App.3d 378, 616 N.E.2d 1156. {¶ 32} Therefore, the trial court did not err in granting appellees' motion for summary judgment on Manno's breach-of-implied-contract and promissory-estoppel claims and denying Manno's motion for summary judgment on those claims. E. Negligent Misrepresentation {¶ 33} The elements of negligent misrepresentation are as follows: "One who, in the course of his business, profession or employment, or in any other *Page 724 transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." 3 Restatement of the Law 2d, Torts (1965) 126-127, Section 552(1), applied by the Supreme Court of Ohio in Gutter v. Dow Jones, Inc. (1986),22 Ohio St.3d 286, 490 N.E.2d 898, and Haddon View Investment Co. v.Coopers Lybrand (1982), 70 Ohio St.2d 154, 436 N.E.2d 212. {¶ 34} It is significant that a negligent misrepresentation occurs when one supplies false information for the guidance of others. Leal v. Holtvogt (1998), 123 Ohio App.3d 51, 62,702 N.E.2d 1246, citing Textron Fin. Corp. v. Nationwide Mut. Ins.Co. (1996), 115 Ohio App.3d 137, 149, 684 N.E.2d 1261. A negligent misrepresentation does not lie for omissions; there must be some affirmative false statement. Leal, supra,123 Ohio App.3d at 62, 702 N.E.2d 1246, citing Textron, supra, in turn citing Zuber v. Ohio Dept. of Ins. (1986), 34 Ohio App.3d 42,516 N.E.2d 244. {¶ 35} We do not find any evidence of an affirmative false statement having been made by appellees to Manno. As such, the trial court did not err in granting appellees' motion for summary judgment on Manno's negligent-misrepresentation claim and denying Manno's motion for summary judgment on that claim. F. Punitive Damages {¶ 36} R.C. 2315.21(B) permits an award of punitive damages in a tort action where the actions or omissions of a defendant demonstrate actual malice and the plaintiff proves actual damages as a result of those actions or omissions. As Manno had no recognizable cause of action in tort, she further had no right to punitive damages. Therefore, the trial court did not err in granting appellees' motion for summary judgment on Manno's punitive-damages claim and denying Manno's motion for summary judgment on that claim. G. Loss of Consortium {¶ 37} A cause of action based upon a loss of consortium is a derivative action. That means that the derivative action is dependent upon the existence of a primary cause of action and can be maintained only so long as the primary action continues.Messmore v. Monarch Machine Tool Co. (1983), 11 Ohio App.3d 67,68-69, 463 N.E.2d 108. Because Manno was unable to successfully maintain her causes of action, Yasenchack's loss-of-consortium claim must necessarily also fail. Accordingly, the trial court did not err in granting *Page 725 appellees' motion for summary judgment on Yasenchack's loss-of-consortium claim and denying Yasenchack's motion for summary judgment on that claim H. Unequal Treatment {¶ 38} Throughout Manno and Yasenchack's arguments before both the trial court and this court, they attempt to buttress their various claims by naming other persons affiliated with St. Felicitas School and parish whom they contend violated church doctrines but were not discharged. Manno's 30-year-old teaching partner became pregnant while unmarried but was not terminated. A volunteer religion teacher at the church is an unwed mother of two. A maintenance man1 at the church divorced and remarried, without having had his first marriage annulled. We find Manno and Yasenchack's attempt to buttress their claims based upon these persons unpersuasive. {¶ 39} First, in regard to Manno's teaching partner as she relates to Manno's age-discrimination claim, she did not replace Manno. There is no evidence that the teaching partner's continued employment depended on Manno's termination. Similarly, in regard to Manno's negligence claim, any difference between appellees' treatment of Manno and the teaching partner did not create a duty on appellees' part to warn Manno that her marrying without first obtaining an annulment would jeopardize her employment. {¶ 40} The religion teacher is a volunteer at the church and, thus, differently situated than Manno. As a volunteer for the church, she is not subject to an employment contract or the school's faculty handbook. {¶ 41} Finally, the maintenance man was an employee of the church, not the school, and was not bound by the same employment contract and faculty handbook as Manno. Moreover, in his job doing maintenance for the church, he rarely, if ever, interacted with students from the school. I. Conclusion {¶ 42} The trial court properly granted appellees' motion for summary judgment as to appellants' claims of age discrimination, intentional infliction of emotional distress, negligence, implied breach of contract, promissory estoppel, and negligent misrepresentation. Further, because the trial court properly granted appellees' motion for summary judgment relative to the above-mentioned claims, it also properly found that appellants' claims for punitive damages and *Page 726 loss of consortium must fail. Similarly, the trial court properly denied appellants' motion for summary judgment as to all of their claims. Judgment affirmed. CELEBREZZE, P.J., and KILBANE, J., concur. 1 Although Manno and Yasenchack do not present any argument relative to the maintenance man in their briefs before this court, they did in the trial court.

2016-07-06 06:41:56.879615+00

Appellant, Carma R. Pausch, appeals her conviction for violating R.C. 4301.62 (open container of an alcoholic beverage), a minor misdemeanor, and assigns the following error: "The trial court erred, as a matter of law, in failing to dismiss this case, based upon a lack of venue and/or jurisdiction, in violation of the Ohio Constitution." Appellant was charged with having an open container of beer in the parking lot of the Polaris Amphitheater, which is located in the city of Columbus, county of Delaware.1 After a bench trial, the Franklin County Municipal Court found her guilty. In her only assignment of error, appellant argues that the court erred in denying her motion for a new trial and/or her motion to arrest judgment because the Franklin County Municipal Court did not have jurisdiction to adjudicate the charge against her. Alternatively, she contends venue in Franklin County was improper. Crim.R. 34, Arrest of Judgment, provides that the trial court shall vacate its prior judgment and discharge the defendant if the court did not have jurisdiction over the charged offense. This issue presents us with a question of law which we reviewde novo. Crim.R. 33(A) provides for a new trial when the movant did not receive a fair trial because of a procedural irregularity, or the verdict was contrary to law, or an error of law occurred. See Crim.R. 33(A)(1), (4) and (5). Appellate courts generally review new trial motions relating to a procedural irregularity under an abuse of discretion standard. See State v. Schiebel (1990), 55 Ohio St.3d 71; State v.Russell (1990), 67 Ohio App.3d 81. Purported legal errors are generally reviewed de novo. (I) Jurisdiction The territorial jurisdiction of municipal courts is governed by R.C. 1901.20, which states that "[t]he municipal court has jurisdiction * * * of the violation of any misdemeanor committed within the limits of its territory." Territory is defined as "the geographical areas within which municipal courts have jurisdiction as provided in sections 1901.01 and1901.02 of the Revised Code." See R.C. 1901.03(A). R.C. 1901.02 provides in part: "(A) The municipal courts established by section 1901.01 of the Revised Code have jurisdiction within the corporate limits of their respective municipal corporations and are courts of record. Each of the courts shall be styled '__________ municipal court,' inserting the name of the municipal corporation, except the following courts, which shall be styled as set forth below: "* * * "(5) The municipal court established in Columbus that shall be styled and known as the 'Franklin county municipal court'; "* * * "(B) In addition to the jurisdiction set forth in division (A) of this section the municipal courts established by section 1901.01 of the Revised Code have jurisdiction as follows: "* * * "The Delaware municipal court has jurisdiction within Delaware county. "* * * "The Franklin county municipal court has jurisdiction within Franklin county." (Emphasis added.) Thus, the Franklin County Municipal Court has territorial jurisdiction within the corporate limits of the city of Columbus and within Franklin County. See Columbus v. Roberts (Apr. 27, 1989), Franklin App. No. 88AP-1023, unreported (1989 Opinions 1453). Appellant does not dispute that the offense occurred within the corporate limits of Columbus. Thus, regardless of the fact that the offense occurred in Delaware County and that the Delaware Municipal Court had concurrent jurisdiction, the Franklin County Municipal Court also has jurisdiction. Appellant attempts to distinguish Roberts on the basis that the defendant in Roberts was charged with a violation of a municipal ordinance, while she is charged with a violation of the Ohio Revised Code. This difference concerns subject-matter jurisdiction, not territorial jurisdiction. R.C. 1901.20 gives municipal courts subject-matter jurisdiction for violations of municipal ordinances and for violations of "misdemeanors,"i.e., violations of the Ohio Revised Code, committed within their territory. As we have already noted, Delaware County Municipal Court also has jurisdiction over that portion of the city of Columbus in Delaware County, see State v. Paskalik (Apr. 20, 1987), Delaware App. No. 86CA27, unreported. However, this fact did not divest the Franklin County Municipal Court of the jurisdiction granted to it by R.C. 1901.02. The trial court properly denied appellant's motion to arrest judgment for lack of jurisdiction. (II) Venue Crim.R. 18(A) provides that the venue of a criminal case shall be as provided by law. Section 10, Article I of the Ohio Constitution fixes venue, or the proper place to try a criminal matter, in the county in which the offense is alleged to have been committed. See, also, R.C. 2901.12(A). Venue commonly refers to the appropriate place of a criminal prosecution within the state and must be raised before trial or it will be considered waived. State v. Williams (1988), 53 Ohio App.3d 1,5. While dismissal is the appropriate remedy where the state fails to prove venue at trial, see State v. Headley (1983),6 Ohio St.3d 475, that is not the issue here. The proper remedy for improper venue is to transfer the case to the appropriate place, not outright dismissal as is the case in a failure of proof. See R.C. 2901.12(K) and 2931.19. See, also, Crim.R. 18(B). Therefore, the trial court did not err in denying either the motion to dismiss or the motion for a new trial. Furthermore, Crim.R. 12(B)(1) requires motions dealing with defects in the institution of the prosecution to be raisedbefore trial. Crim.R. 12(C) provides that pretrial motions such as appellant's shall be made within thirty-five days after arraignment or seven days prior to trial, whichever is earlier. The trial court may extend this time in the interest of justice. Crim.R. 18(B) contains similar provisions. However, it is neither an abuse of discretion, nor error as a matter of law, to deny a motion which raises improper venue when the motion is not made until the morning of trial. Moreover, a trial court does not abuse its discretion in denying a motion for new trial under these circumstances. Appellant's first mention of the issue of venue was on the morning of trial when appellant's counsel stated: "I raise at this point in time, that this court does not have the proper venue; that this matter should have probably been filed in the Delaware County Municipal Court instead of this court." Thus, her "motion" regarding venue was clearly untimely. Having determined that the trial court had proper jurisdiction to hear the charge against appellant and that appellant failed to preserve any error concerning venue, we overrule appellant's only assignment of error and affirm the judgment of the trial court. Judgment affirmed. ABELE and KLINE, JJ., concur. HARSHA, J., ABELE, J., and KLINE, J., of the Fourth Appellate District, sitting by assignment in the Tenth Appellate District. 1 We note that the complaint alleged that appellant "at Franklin County/Columbus, Ohio, on or about the 13 day of June, 1998 did: unlawfully possess beer * * * while seated in a motor vehicle." Appellant did not allege any defect in the complaint in the trial court nor in her appellate brief. Any error in this regard is waived.

2016-07-06 06:41:56.91279+00

JOURNAL ENTRY AND OPINION. {¶ 1} This is an appeal by Eugene Williams from sentences imposed by Judge Brian J. Corrigan. Although he asserts error in making his sentences consecutive, we find that he was given sentences for burglary and robbery, offenses of higher degree than those to which he pleaded guilty, and was never sentenced at all for an intimidation count. We vacate the sentence and remand for resentencing. {¶ 2} In May of 2002, Williams was indicted on one count of burglary of an occupied structure, a felony of the second degree1 (#423249). In June of 2002, he was indicted on six counts of burglary of other occupied structures, also felonies of the second degree; one count of robbery, a felony of the second degree;2 one count of intimidation of a witness;3 and four counts of theft with elderly specifications, which were felonies of varying degree4 (#424274). In July of 2002, he was indicted on one count of theft, in an amount between five hundred and five thousand dollars, with an elderly specification, a felony of the fourth degree (#425455). {¶ 3} At the August 2002 plea hearing, the parties outlined the plea agreement they had reached. In Case #423249, Williams pleaded guilty to one count of burglary, a third degree felony. In Case #424274, Williams pleaded guilty to six "third degree felony" burglaries; intimidation, also a felony of the third degree; and a robbery count amended to attempted robbery, a felony of the third degree. In Case #425455, Williams pleaded guilty to the indicted charge of theft with an elderly specification, a felony of the fourth degree. All counts in case #424274, not amended or mentioned above, were nolled at the hearing. {¶ 4} The judge remarked, "As I've previously stated, it appears you're going to plead guilty to one, two, three, four, five, six, seven, eight, nine felonies of the third degree * * *," and he also mentioned on the record that Williams was pleading guilty to a fourth degree felony in case #425455. {¶ 5} The journal entries memorializing this plea hearing correctly stated that Williams pleaded guilty to amended, third-degree felony burglary in Case #423249 and to theft with an elderly specification in Case #425455, a felony of the fourth degree. The journal entry issued for Case #424274, however, states, {¶ 6} "Defendant retracts former plea of not guilty and entersplea of guilty to [second-degree felony] burglary * * * in Count 1, guiltyto [second-degree felony] robbery * * * in Count 2, and guilty to [FiveCounts of third-degree felony] burglary * * * as amended in Counts Fourthrough Eight. * * * Remaining Counts are dismissed. * * *" (Emphasis added.) {¶ 7} This journal entry incorrectly omitted the amendments to two second-degree felony charges stipulated at the plea hearing, and omitted the intimidation charge plea, which is "Count 3" of Case #424274. {¶ 8} At sentencing on September 19, 2002, the judge stated, {¶ 9} "In case 423249, you are sentenced to a period of incarceration of three years. In case 424274 count 1, that is burglary, a period of incarceration of seven years; count two, a period of incarceration of seven years. Counts four, five, six, seven and eight, three years each." {¶ 10} "Case number 425455 count one, twelve months, to be served as follows: Case 423249 is to be consecutive to 424274 counts one and two are to be concurrent with each other but consecutive to four through eight and, finally, case 425455 twelve months concurrent with the other two cases [punctuation sic]. By my math, it figures it's like 20." {¶ 11} Here, again, the judge's oral pronouncement of sentence fails to impose any punishment for the intimidation count. {¶ 12} The journal entry memorializing the entry of sentence for Case #423249 reflects a sentence of three years imprisonment, consecutive to sentence imposed in Case #424274, consistent with his pronouncement from the bench at the sentencing hearing. The sentencing journal entry for Case #425455 correctly pronounces the sentence at hearing of twelve months imprisonment, concurrent with sentences imposed in Cases 423249 and 424274. The sentencing entry for Case #424274, however, reads, {¶ 13} "The court imposes a prison term at Lorain CorrectionalInstitution of 7 years on each Counts 1 and 2 and a term of three yearson each of Counts 4, 5, 6, 7 and 8. Counts 1 and 2 run consecutive toeach other, but concurrently with Counts 4, 5, 6, 7 and 8." {¶ 14} Once, again, the intimidation count to which Williams pleaded guilty was not mentioned at all. {¶ 15} Williams then appealed, based on the assumption that all counts in the indictment had been adjudicated, and he challenged the imposition of what both parties to this case characterize as a seventeen-year prison term. Indeed, under the three sentencing journal entries filed on the lower cases, the aggregate term imposed is seventeen years: each seven-year second-degree felony sentence handed down in Case #424274, to be served consecutively, added to the three-year term imposed on Case #423249, with all other counts to run concurrently, yields a total term of seventeen years. If one follows the record of the sentencing hearing, however, it is unclear what Williams' sentence is because, punctuation difficulties in the transcript notwithstanding, the judge's hand-written "Sentencing Journal Form" in the file for Case #424274 unequivocally states that the sentence for Case #423249 (three years) is to be consecutive to Case #424274 (entailing two concurrent seven-year prison terms for the second-degree felony burglary and robbery counts, followed by a consecutive three-year prison term for, collectively, all of the third-degree burglary counts). Since the twelve-month prison term imposed for case #425455 was run concurrently, this all adds up to only a thirteen-year prison term. {¶ 16} Under R.C. 2929.14(E)(4), a judge may sentence a defendant to consecutive terms of imprisonment for multiple crimes in the following circumstances: {¶ 17} "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 service 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: {¶ 18} (a) The offender committed 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. {¶ 19} (b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct. {¶ 20} (c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."5 {¶ 21} In making such findings that consecutive sentences are appropriate, a judge must articulate, on the record, the reasons for the findings made.6 An appellate court may disturb a consecutive sentence imposed only if it clearly and convincingly finds that the record does not support the judge's findings under the statutory factors found in R.C. 2929.13(B) and (D) or the sentence is otherwise contrary to law.7 {¶ 22} Preliminarily, we note that the offenses to which Williams admitted guilt were not defined in any amount of detail whatsoever, either at the plea hearing or at sentencing. At sentencing, Williams' lawyer urged leniency because his client apparently suffers from psychiatric disorders which require him to take psychotropic medications, he has never held a job and he seems to live by stealing, and the dollar amounts for all the offenses to which Williams pleaded guilty added up to a comparatively small amount of money. The State countered that there were, in all, nine victims involved; Mr. Williams had a "horrendous" record; and, he committed these offenses while on post release control. {¶ 23} Because there was no reference to the presentence investigation report, all we can glean from the record is that the judge considered Williams to have a consistent history of theft-oriented crimes going back to 1980, that his victims in the past, as well as in many counts sub judice, were elderly persons and involved at least a small degree of force. No crime is alleged or described in terms of what actually occurred. {¶ 24} In justifying consecutive sentences in the case sub judice, the judge observed, {¶ 25} "A couple of things here I have to observe, Mr. Williams, and that is your record goes back to 1980. You have been in and out of prison a number of times." {¶ 26} "Most recently you were sentenced to six months at Lorain in January of 2001 and sometime last year you got out. Here we have this year, in April — in March, April and May, and January, you are back in trouble doing these things again." {¶ 27} "While I accepted what your attorney tells me about your multi [sic] severe psychiatric disorders, at some point in time, society has got to say enough is enough, and I think this is that time. * * *" {¶ 28} "Oh, the Court does find the following, too, just to make sure there are no problems across the street, that these are consecutive." {¶ 29} "The defendant's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crimes caused by the defendant." {¶ 30} "The Court further finds that anything other than this will demean the seriousness of the crimes and these incidents we have here were either dealing with the elderly or with women." {¶ 31} "Notwithstanding his multi [sic] sever[e] psychiatric disorders, that's the decision of the Court. Good luck." {¶ 32} We do not dispute that the judge articulated reasons on the record constituting compliance with R.C. 2929.14(E)(4)(c)'s requirement that he give reasons for finding that consecutive sentences were necessary to protect the public from Williams' potential future crimes — Williams' propensity for theft offenses, particularly against the elderly, is certainly evident. It is also undisputed that Williams committed the offenses sub judice while on post release control, satisfying R.C. 2929.14(E)(4)(a).8 The judge's findings, however, must show that 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 the offender poses to the public"9 (emphasis added). He did not, however, explain why the consecutive sentences were not disproportionate to the seriousness of Williams' conduct,10 for the judge gave no factual reason that Williams' crimes, never described in the record, were serious enough to justify consecutive sentences. Hence, remand is appropriate. {¶ 33} Additionally, we note that the plea hearing and sentencing journal entries in this case, reflecting that Williams had pleaded guilty to two second degree felony counts, are inaccurate. During the plea hearing, the highest degree of felony to which Williams pleaded guilty was the third degree. Additionally, it is unclear, as between the typed computer docket of this case and the handwritten journal entry in the record, which counts were to be concurrent or consecutive. Additionally, Williams has never been sentenced for the count of intimidation for which he pleaded guilty. The judge was without authority to sentence him to a prison term for felonies of the second degree when he had accepted his plea for third degree felonies, the sentencing is incomplete and the sentence is contrary to law.11 ANN DYKE, J., and ANTHONY O. CALABRESE JR., J., concur. 1 R.C. 2911.12(A)(1). 2 R.C. 2911.02(A)(2) and (B). 3 R.C. 2921.04(B) and (D). 4 R.C. 2913.02(A) and (B). 5 R.C. 2929.14(E)(4). 6 R.C. 2929.19(B)(2)(d); State v. Jones (2001), 93 Ohio St.3d 391,399, 754 N.E.2d 1252, 1260. 7 R.C. 2953.08(G). 8 We note that the judge only needed to comply with either R.C.2929.14(E)(4)(a), (b), or (c) in order to satisfy the latter half of that section. 9 R.C. 2929.14(E). 10 See, generally, R.C. 2929.14(E)(4); State v. Colegrove, (Apr. 18, 2002), Cuyahoga App. No. 79396, 2002-Ohio-1825, State v. DeAmiches (Mar. 1, 2001), Cuyahoga App. No. 77609, State v. O'Linn (Mar. 16, 2000), Cuyahoga App. No. 75815. 11 R.C. 2953.08(G).

2016-07-06 06:41:56.943259+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, Angel Vargas, appeals his conviction out of the Lorain County Court of Common Pleas. This Court reverses. I. {¶ 2} On May 31, 2006, Vargas was indicted on one count of aggravated robbery in violation of R.C. 2911.01(A)(2), a felony of the first degree; one count of theft in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree; and one count of robbery in violation of R.C. 2911.02(A)(2), a felony of the second degree. Prior to trial, the State moved to dismiss the robbery charge and the matter proceeded to trial before the jury on the first two counts. At the conclusion *Page 2 of the State's case-in-chief, Vargas moved for a judgment of acquittal pursuant to Crim.R. 29. The trial court denied the motion. Vargas rested and renewed his Crim.R. 29 motion. The trial court denied the motion. The jury found Vargas guilty of aggravated robbery and theft. Prior to sentencing, Vargas renewed his Crim.R. 29 motion, which the trial court denied. The trial court sentenced Vargas to three years in prison on the aggravated robbery and merged the theft into the aggravated robbery for purposes of sentencing. Vargas timely appeals, setting forth two assignments of error. This Court rearranges and consolidates the assignments of error for purposes of review. II. ASSIGNMENT OF ERROR II "THE TRIAL COURT ERRED AS A MATTER OF LAW AND TO THE PREJUDICE OF APPELLANT BY DENYING HIS MOTIONS FOR JUDGMENT OF AQUITTAL [sic] PURSUANT TO OHIO CRIM.R. 29 IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION, AS THE EVIDENCE FOR THE CHARGE OF ARMED ROBBERY WAS INSUFFICIENT TO PRESENT TO THE TRIER OF FACT." ASSIGNMENT OF ERROR I "THE VERDICT OF THE JURY FINDING APPELLANT GUILTY OF AGGRAVATED ROBBERY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION." *Page 3 {¶ 3} Vargas argues that his conviction for aggravated robbery was not supported by sufficient evidence and was against the manifest weight of the evidence. Vargas argues that the State failed to prove all elements of the offense beyond a reasonable doubt. Specifically, Vargas argues that the State failed to prove that he possessed a firearm during the commission of a theft offense and that the alleged firearm was operable. This Court disagrees, in part, and agrees, in part. {¶ 4} Crim.R. 29 provides, in relevant part: (A) 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 charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case." {¶ 5} A review of the sufficiency of the State's evidence and the manifest weight of the evidence adduced at trial are separate and legally distinct determinations. State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600. "While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion." Id., citing State v. Thompkins (1997),78 Ohio St.3d 380, 390 (Cook J., concurring). When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to *Page 4 determine whether the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks (1991), 61 Ohio St.3d 259, 279. "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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." Id. at paragraph two of the syllabus. {¶ 6} A determination of whether a conviction is against the manifest weight of the evidence, however, does not permit this Court to view the evidence in the light most favorable to the State to determine whether the State has met its burden of persuasion. State v. Love, 9th Dist. No. 21654, 2004-Ohio-1422, at ¶ 11. Rather, "an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, 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. Otten (1986), 33 Ohio App.3d 339, 340. {¶ 7} This Court has stated that "[s]ufficiency is required to take a case to the jury[.] * * * Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency." (Emphasis omitted.) State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462. *Page 5 {¶ 8} Vargas was convicted of aggravated robbery in violation of R.C.2911.01(A)(2), which provides: "No person, in attempting or committing a theft offense, * * * or in fleeing immediately after the attempt or offense, shall * * * [h]ave a dangerous ordnance on or about the offender's person or under the offender's control[.]" {¶ 9} R.C. 2923.11(K) defines "dangerous ordnance" to include a firearm. R.C. 2923.11(B) defines "firearm" as follows: "(1) [A]ny deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. `Firearm' includes an unloaded firearm, and any firearm that is inoperable but that can be rendered operable. "(2) When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm." {¶ 10} Natasha McCaskill testified at trial that she was working as a clerk at the Shoe Carnival in Elyria on April 6, 2006, when Vargas entered the store. She testified that she knew of him, because he was a friend of her former boyfriend and because he had been in the store a couple times while she was working. She testified, however, that she had not otherwise seen Vargas since 1996 or 1997. {¶ 11} Ms. McCaskill testified that Vargas entered the store around 9:45 a.m., greeted her, then asked whether the store had ever been robbed. She testified that she told him, "No," and that there were cameras hidden throughout the store. *Page 6 She testified that there are only cameras aimed at the cash registers, front door, storeroom and office, but that there are no cameras aimed into the aisles. {¶ 12} Ms. McCaskill testified that Vargas then went into the aisles to look at boots. Ms. McCaskill testified that Vargas asked for the partner boots for some fashion footwear, but she told him that she did not have the key to the storeroom. She testified that Vargas then turned to the side, at which time she saw the handle of a gun protruding from the waistband on his right side. She described the handle as black, long, square and flat. Although Ms. McCaskill could not identify the specific type of gun she saw or whether it was real or fake, she testified that she was sure it was a gun. She testified that she felt somewhat threatened because she saw that Vargas was carrying a gun. She admitted that Vargas did not verbally threaten her. {¶ 13} Ms. McCaskill testified that she left Vargas and went to tell her manager that her customer had a gun. She testified that the manager was with her own customer and that neither of them called the police, because store policy requires, first, that they notify the general manager, and, second, that they notify loss prevention. She testified that employees are not allowed to pursue potential shoplifters. {¶ 14} The State and Vargas presented a videotape from the store cameras as a joint exhibit. In the videotape, Vargas can be seen walking within the store and talking to Ms. McCaskill at the cash register kiosk. Vargas was wearing a *Page 7 long, hooded sweatshirt which fell well below his waist. The tape also shows what is purported to be the lower portion of Vargas as he had just exited the store. {¶ 15} Ms. McCaskill testified that Vargas took two pairs of shoes and ran out of the store without paying for them. She testified that the store alarm then sounded. Ms. McCaskill testified that she and her manager contacted the store's general manager, the company loss prevention representative and then the police, pursuant to store policy. {¶ 16} On cross-examination, Ms. McCaskill testified that she neither allowed nor assisted Vargas in stealing anything. In response to defense counsel's question why she continued to look at the security camera, she replied that she always looks at the cameras. {¶ 17} Officer Richard Ilcisko of the Elyria Police Department testified that he arrived at work on April 6, 2006, at 1:30 p.m. for role call briefing. He testified that he recognized Vargas in a photograph of a robbery suspect which was being passed around during the briefing. {¶ 18} Officer Ilcisko testified that Detective Barbee of the Elyria Police Department approached him the next day, told him that Vargas had been identified in a photo array, that a warrant had been issued for his arrest, and that Ilcisko should arrest Vargas if he saw him. {¶ 19} Officer Ilcisko testified that he knew Vargas lived in a Lorain Metropolitan Housing Authority highrise apartment building on East Avenue, so *Page 8 he went there. The officer testified that he entered the apartment building and immediately saw Vargas sitting in the lobby. Officer Ilcisko testified that he ordered Vargas to his feet, told him to turn around and place his hands in the air, and that there was a warrant for his arrest. He testified that he began escorting Vargas to the police cruiser, when Vargas blurted out that he knew why the police were there for him. Officer Ilcisko testified that he informed Vargas that he did not have to speak to the police without an attorney, but that Vargas continued to "talk over" him. He testified that Vargas stated that he knew they were there for him "about the stealing" but that he "didn't have a gun." At that time, Officer Ilcisko testified that he had not mentioned either the charges or a gun. {¶ 20} Detective Larry Barbee of the Elyria Police Department testified that he was assigned to investigate this case. He testified that he compiled a photo array and that both Ms. McCaskill and her manager identified Vargas as the person who stole shoes on April 6, 2006. Detective Barbee testified that he interviewed Vargas after advising him of his Miranda rights. The detective testified that Vargas admitted taking the shoes but denied having a weapon. {¶ 21} Viewing the evidence in a light most favorable to the prosecution, this Court finds that any rational trier of fact could have found the essential elements of the crime of aggravated robbery proven beyond a reasonable doubt. See Jenks, 61 Ohio St.3d at 279. Vargas does not dispute that he stole shoes from the store. Ms. McCaskill testified that she saw a gun in Vargas' waistband, a place *Page 9 which would make the gun immediately accessible for use. Accordingly, the State presented sufficient evidence to meet its burden of production at trial. See Gulley, supra. {¶ 22} However, in weighing the evidence and all reasonable inferences and considering the credibility of the witnesses, this Court finds that this presents the exceptional case, where the evidence weighs heavily in favor of Vargas. {¶ 23} The weight of the evidence does not support the conclusion that Vargas had a firearm on or about his person or under his control while committing a theft offense or fleeing immediately thereafter. Ms. McCaskill testified that Vargas entered the store and immediately asked whether the store had ever been robbed. However, Vargas's attorney did not dispute that Vargas stole two pairs of shoes, only whether Vargas had a gun. {¶ 24} The evidence established that Vargas was wearing a long sweatshirt that covered him well below his waistband. Although Ms. McCaskill testified that she clearly saw the handle of a gun protruding from Vargas' waistband when he turned in the store aisle as she was attending him, this Court finds her testimony incredulous. She did not testify that Vargas lifted his shirt or even bent over so that the gun might be exposed. Based on this testimony, the jury could infer that Ms. McCaskill could only have seen the gun if Vargas intentionally exposed it. However, she did not testify that he did anything which would have reasonably *Page 10 exposed the gun to her. Based on the evidence, it would be impossible to see a gun in the manner in which this witness described it as happening. {¶ 25} A thorough review of the record, including the videotape, compels this Court to find a clear indication that the jury lost its way and committed a manifest miscarriage of justice in convicting Vargas of aggravated robbery. This Court finds that Vargas' conviction is against the manifest weight of the evidence. {¶ 26} Vargas' second assignment of error is overruled, but his first assignment of error is sustained. III. {¶ 27} Vargas' second assignment of error is overruled. His first assignment of error is sustained. Vargas' conviction out of the Lorain County Court of Common Pleas is reversed and the cause remanded for further proceedings consistent with this decision. 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. *Page 11 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 appellee. MOORE, J., DICKINSON, J., CONCUR. *Page 1

2016-07-06 06:41:56.978237+00

OPINION This matter is before this court upon the appeals of plaintiff-appellant, Robert N. Shamansky ("appellant"), from the April 16, 1999 decisions and entries of the Franklin County Court of Common Pleas which adopted in part and modified in part the commissioners' report; denied appellant's objection to the appraisal report secured by the commissioners; denied appellant's objection to the December 10, 1998 proposal for in-kind distribution; and denied appellant's objection to the defendants-appellees' proposed commissioners' report. On September 19, 1997, appellant filed five separate partition actions in the Franklin County Court of Common Pleas seeking partition of certain real property. Named as defendants were Samuel C. Shamansky, Gale M. Shamansky, Thomas R. Maimone, and Fannie Levi (hereinafter "appellees"). Appellant asserted that he had an undivided interest in each of the described real properties. By order dated March 18, 1998, the trial court appointed J. Craig Wright to act as a commissioner in these partition actions. By order dated April 29, 1998, the trial court appointed Richard L. Royer and Fred E. Dauterman, Jr., to act as commissioners as well. According to the parties' briefs, the commissioners then retained Kohr Royer Griffith, Inc. to prepare appraisals of the properties involved in the partition action. Both appellant and the Shamansky appellees filed objections to the appraisals prepared by Kohr Royer Griffith. On December 18, 1998, appellant filed information concerning his income tax basis in certain of the properties as requested by the commissioners. In their briefs, both appellant and appellees state that they were requested to submit proposed commissioners' reports to the commissioners and that they filed proposed commissioners' reports on February 3, 1999. A review of the record indicates that nothing was filed with the trial court on February 3, 1999, and those proposed commissioners' reports are not in the record. However, the parties' objections to each other's proposed commissioners' reports are in the record. Apparently a status conference was held on February 17, 1999. The parties state in their briefs that, at that conference, they were given the following: (1) a January 10, 1999 letter from commissioner Royer to commissioner Wright outlining three alternative approaches which the trial court could adopt to equitably partition the properties; (2) a February 10, 1999 memorandum from commissioner Dauterman to commissioner Wright setting forth a fourth alternative which the trial court might adopt; and (3) a letter dated February 11, 1999 from commissioner Wright to the trial judge enclosing the Royer letter and various other documents, commenting on the parties' respective legal arguments concerning the trial court's authority to impose an in-kind allocation of whole parcels and stating that the decision concerning those legal arguments would have to be made by the trial court. Upon review of the record, none of the above three-referenced letters were filed with the trial court. There is a December 7, 1998 letter from commissioner Dauterman; however, there is no February 10, 1999 letter, nor are there any letters from commissioners Royer or Wright. In their briefs, the parties then state that the trial court gave them until February 26 to respond to the Royer letter. Appellant states that, at the status conference, the trial judge actually informed the parties that the Royer and Wright letters, in combination, were to be considered as the commissioners' report for purposes of the partition proceeding. However, as stated previously, the record does not contain a letter from either commissioners Royer or Wright. Furthermore, no transcript was made of the status conference and no order was put on by the trial judge which would indicate that the trial court was considering those two letters as constituting the commissioners' report. Nevertheless, appellees filed a response to the "Commissioners' Report" and appellant filed a memorandum regarding the "Commissioners' Recommendation." Both appellant and appellees addressed the Royer and Wright letters in their objections. On April 16, 1999, the trial court issued its decisions and entries which substantially adopted the first alternative allegedly set forth in the Royer letter with a couple of modifications. Nunc pro tunc entries were put on April 22, 1999, merely to correct a misstatement as to the value of one of the properties at issue. On May 12, 1999, appellant filed his notices of appeal from the trial court's decisions and entries, wherein he asserts the following eight assignments of error: Assignment of Error No. 1: The trial court erred by entering its Partition Order in violation of R.C. Chapter 5307 before receiving a signed, written report from the Commissioners. Assignment of Error No. 2: The trial court erred by entering its Partition Order in violation of R.C. Chapter 5307 before giving the parties an opportunity to object to any commissioners' report and present evidence at a hearing relating to those objections. Assignment of Error No. 3: The trial court erred by entering its Partition Order in violation of R.C. Chapter 5307 before giving the parties an opportunity to present evidence at a hearing relating to the parties' objections to the Kohr Royer Griffith Inc. appraisal reports. Assignment of Error No. 4: The trial court erred by "setting-off" a grossly disproportionate allocation of parcels in one case against a grossly disproportionate allocation of different parcels owned by different owners in a different case. Assignment of Error No. 5: The trial court erred in violating R.C. 5307.07 and In re Prentiss by allocating whole parcels among parties when those parcels were not (a) owned by identical groups of tenants in common who (b) owned the same proportions in each parcel so allocated. Assignment of Error No. 6: The trial court erred by impermissibly granting new ownership interests to Defendant-Appellee Samuel C. Shamansky in parcels in which he was not an owner. Assignment of Error No. 7: The trial court erred by making grossly disproportionate allocations of whole parcels in these separate cases in violation of R.C. Chapter 5307. Assignment of Error No. 8: The trial court erred by violating the statutory cap on fees payable to the commissioners pursuant to R.C. 2335.01. R.C. Chapter 5307 allows for partition actions to be brought among tenants in common, survivorship tenants and other co-practitioners of estates and land. If a court of common pleas finds that the plaintiff(s) in a partition action has a legal right to any part of the estate in question, the court shall order a partition of the premises and appoint up to three suitable, disinterested persons to be commissioners to make the partition. R.C. 5307.04. Pursuant to R.C. 5307.06, the commissioners "shall view and examine the estate and, on their oaths and having due regard to the improvements, situation, and quality of the different parts, set it apart in lots that will be most advantageous and equitable." If the commissioners are of the opinion that the estate cannot be divided without manifest injury to its value, the commissioners "shall return that fact to the court of common pleas with a just valuation of the estate." If the court approves the return and if one or more of the parties elects to take the estate at the appraised value, they may do so, or the properties may be sold at public auction. R.C. 5307.09; R.C. 5307.11. It is apparent, from reading R.C. Chapter 5307, that the commissioners had the duty to "view and examine the estate and, on their oath and having due regard to the improvements, situation, and quality of the different parts, set it apart in lots that will be most advantageous and equitable." Furthermore, when the commissioners were of the opinion that the estate could not be divided without manifest injury to its value, the commissioners were required to return that fact to the court of common pleas with a just valuation of the estate. Nothing in R.C. Chapter 5307 provides for any formal requirements regarding the manner in which the commissioners are to inform the trial court of their decision regarding the manner in which to divide the property or their explanation as to why division would provide a manifest injury to the estate. The parties state in their briefs that commissioners Royer and Wright authored letters regarding their opinions on the division of the properties and outlining suitable alternatives. Based upon a reading of the requirements of R.C. 5307.09, there is no reason why the rendering of the commissioners' decision could not have been made in letter form. However, as previously indicated, there are no letters from commissioners Royer and Wright which have ever been filed in the trial court. It is common practice, in fact it is a requirement, in trial courts that anything which is to be considered by the trial court in the rendering of the trial court's decision is required to be filed with the court. The reasons for this are obvious. By filing evidence herein, the appraisals and the letters/reports from commissioners Royer and Wright, all parties, as well as the trial court, are put on notice of what evidence is before the trial court for the judge's consideration. Furthermore, if and when a matter is appealed to a higher court, that higher court has a record upon which that court can determine whether or not errors occurred at the trial court level. In the matter before this court, no record has been made for this court to review. In determining the best way to handle this matter, this court finds it instructive to analogize the appointment of commissioners in a partition action to the appointment of a magistrate in a trial court action. Civ.R. 53 outlines the procedures for the referencing of matters to magistrates and provides detailed instructions regarding the magistrate's duties, responsibilities, and manner in which the magistrates are to report their decisions to the trial court. Before a magistrate's decision can even be considered and eventually ruled upon by the trial court, the magistrate's decision must be filed with the trial court. Thereafter, the parties have the opportunity to present objections. If a magistrate's decision is never filed with the clerk of the trial court, the trial court does not have authority to act on the merits of the objections or to adopt, modify or reject the report until the report is filed with the clerk for journalization and the parties have been given an opportunity to object. Berry v. Berry (1977), 50 Ohio App.2d 137;In the Matter of: Serrano (Mar. 19, 1999), Trumbull App. No. 98-T-0016; Putkonen v. Henderson (May 11, 2000), Cuyahoga App. No. 76325. As stated previously, there has never been a commissioners' report filed with the trial court. Furthermore, even if the trial judge made the determination to consider the Royer and Wright letters as constituting the commissioners' report, neither of those letters have been filed and made a part of this record and there is no order or entry from the trial court indicating that those letters would be considered as the commissioners' report. As such, the trial court did not have authority to act on the merits of the objections or to adopt, modify or reject the commissioners' report even though the parties have filed objections to that report. Based upon the above, this court sustains in part appellant's first assignment of error which alleged that the trial court erred by entering its partition order before receiving a signed, written report from the commissioners. As stated previously, there are no formal requirements for the commissioners' report; however, whatever form that report takes, it must be filed with the trial court and made a part of the record before the trial court has authority to act on it. By sustaining in part appellant's first assignment of error, the remainder of appellant's assignments of error are rendered moot. Based on the foregoing, this court sustains in part appellant's first assignment of error, the April 16, 1999 decisions and entries of the Franklin County Court of Common Pleas are vacated, and this matter is remanded to the trial court for further proceedings consistent with this opinion. _____________________ KENNEDY, J. PETREE, J., concurs. LAZARUS, J., concurs in judgment only.

2016-07-06 06:41:57.194877+00

OPINION Defendants-appellants Patricia Hulbert and Richard Laase appeal the August 25, 1999 Judgment Entry of the Stark County Court of Common Pleas denying their Motion to Vacate and Reconsider the default judgment entered against them on July 23, 1999. Plaintiffs-appellees are Kelly Hughes, et al. STATEMENT OF THE CASE Appellees filed their complaint on June 9, 1999. Appellants were served by certified mail on June 14, 1999. On July 22, 1999, appellants filed a Motion for Leave to Plead Instanter accompanied by an Answer. Appellees filed a Motion for Default Judgment the same day. On July 23, 1999, the trial court granted appellees' motion. The trial court denied appellants' motion on July 28, 1999. On August 13, 1999, appellants filed a Motion to Vacate and Reconsider and requested a hearing. The trial court denied appellants' motion without a hearing via Judgment Entry filed August 25, 1999. It is from that judgment entry appellants prosecute this appeal assigning as error: THE COURT ERRORED [SIC] IN IT'S DENIAL OF THE MOTION TO VACATE PURSUANT TO OHIO RULES OF CIVIL PROCEDURE WITHOUT GRANTING A HEARING ON THE MERITS OF THE SAME. We overrule appellants' sole assignment of error. Our reasons follow. In their August 13, 1999 Motion to Vacate and Reconsider, appellants stated the "excusable error and mistake" for their failure to timely answer appellees' complaint resulted from ". . . appearant [sic] miscalculation of the 28 day Answer . . ." and ". . . that there are valid defenses and valid issues." In GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, the Ohio Supreme Court set forth the standard for determining motions for relief from judgment. The Supreme Court held in paragraph two of the syllabus: 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; (2) entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) timeliness of the motion. Although neither Civ.R. 60(B) nor any case decided by the Ohio Supreme Court requires the movant to submit evidence in support of a motion for relief from judgment before a hearing on the motion is warranted, the motion must demonstrate the neglect was excusable and the specific nature of the defense. We find the mere assertion of a miscalculation of days is legally insufficient to constitute excusable neglect. Moreover, the failure of appellants to identify the nature of their defense and to specify their reasons why a meritorious defense exists (as opposed to merely asserting in conclusing fashion valid defenses exist) is insufficient to warrant a hearing. The trial court did not abuse its discretion in denying appellants' Motion to Vacate and Reconsider without a hearing. The judgment of the Stark County Court of Common Pleas is affirmed. By: HOFFMAN, P.J. EDWARDS, J. and MILLIGAN, V.J. concur.

2016-07-06 06:41:57.218698+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JUDGMENT ENTRY. The first assignment of error, which alleges that the trial court's judgment was against the manifest weight of the evidence, is overruled. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. See State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. The decision of the trier of fact will not be reversed as being against the manifest weight of the evidence as long as it is supported by some competent, credible evidence. See Vogel v. Wells (1991), 57 Ohio St.3d 91,566 N.E.2d 154; C.E. Morris v. Foley Constr. Co. (1978), 54 Ohio St.2d 279,376 N.E.2d 578, syllabus. The opening of a joint and survivorship account in the absence of fraud, duress, undue influence or lack of capacity on the part of the decedent is conclusive evidence of his or her intention to transfer to the surviving party or parties a survivorship interest in the balance remaining in the account at his or her death. Wright v. Bloom (1994), 69 Ohio St.3d 596, 635 N.E.2d 31, paragraph two of the syllabus. The record reveals that a certificate of deposit was opened jointly and with rights of survivorship in the names of Ruth D. Barber-Kline and plaintiff-appellee Melvin Ray Dutton. Barber-Kline provided the funds for the certificate of deposit. The trial court determined that there was no evidence that the certificate of deposit was transferred by Dutton or Barber-Kline into the Ruth Barber-Kline Family Trust ("Trust"). There is no document containing Barber-Kline's signature that transfers the certificate of deposit into the Trust. Based upon the record, the trial court was entitled to find that Barber-Kline did not transfer the certificate of deposit into the Trust. We hold that the trial court's determination that Dutton was entitled to the certificate of deposit upon Barber-Kline's death is supported by competent, credible evidence. In addition, we hold that the trial court's determination that Dutton had a right to receive the personal property set forth in the "Disposition of Personal Effects Letter of Instructions" ("Letter") was not against the manifest weight of the evidence. Barber-Kline clearly executed the document, which instructed the trustee to distribute the listed personal property to Dutton. The trial court's conclusion that the document represented a transfer of the listed personal property into trust for Dutton is supported by competent, credible evidence. The second assignment of error, which alleges that the trial court's judgment was contrary to law, is overruled. The trial court found, based upon the evidence presented, that the certificate of deposit had not been transferred into the Trust by either Barber-Kline or Dutton, the owners of the certificate. Therefore, Dutton, as joint owner with a right of survivorship, was entitled to the proceeds upon the death of Barber-Kline. SeeWright v. Bloom, supra. In addition, the trial court's finding that Dutton was entitled to receive the personal property listed in the Letter was not contrary to law. "An express trust arises by reason of a manifested intention to create it." Peterson v. Teodosio (1973),34 Ohio St.2d 161, 172, 297 N.E.2d 113, 120. Based upon the evidence presented, the trial court found that Barber-Kline transferred the listed items into trust for Dutton's benefit. The record supports the trial court's finding. Therefore, the judgment of the trial court is 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. HILDEBRANDT, P.J., DOAN and SUNDERMANN, JJ.

2016-07-06 06:41:57.428284+00

OPINION Defendant-appellant Timothy Michael Gehring appeals the April 29, 1998 Judgment Entry of the Stark County Court of Common Pleas adjudicating him a sexual predator. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE On July 22, 1992, appellant was secretly indicted on one count of statutory rape, in violation of R.C. 2907.02(A)(1)(b), and one count of gross sexual imposition, in violation of R.C.2907.05(A)(4). Both offenses involved the sexual abuse of the daughter of appellant's friend. The gross sexual imposition charge was alleged as a continuous course of conduct during the month of April in 1992. At his arraignment, appellant pled not guilty to the charges. Pursuant to a plea agreement, the trial court amended the indictment by dismissing the rape charge and replacing it with one count of sexual battery, in violation of R.C. 2907.03(A)(2), with a physical harm specification. Thereafter, appellant pled guilty to the charges contained in the amended indictment. The trial court merged the counts for sentencing purposes and sentenced appellant to four to ten years of imprisonment. Appellant was then transferred to the Lorain Correctional Institution to commence his sentence. After the enactment of Ohio's version of Megan's Law in R.C. Chapter 2950, the warden of the Madison Correctional Institution, the institution in which appellant was confined, recommended appellant be adjudicated a sexual predator. The trial court scheduled an H.B. 180 hearing for April 27, 1998. Prior to the hearing, appellant made several oral motions to dismiss arguing H.B. 180 is unconstitutional as it violates the Ex Post Facto and Retroactivity Clauses; constitutes double jeopardy; and is unconstitutionally vague. The trial court overruled each of appellant's motions. At the hearing, appellee presented responses to discovery, the judgment entry in which appellant changed his plea to guilty, and the bill of particulars. The response to discovery contained a statement appellant gave to the police wherein he stated he needed sex frequently, but he and his wife had sex only once every three months. Appellant knew the victim was only nine at the time of the offense, but he was "caught up in the moment." Appellant also stated he knew he had a problem. Appellant presented the court with three exhibits. Exhibit One was a certificate of completion with high honors of the Monticello Program, a program for sexual offenders offered at the institution. Exhibit Two documented the fact the Monticello Program takes twelve months to complete. Finally, Exhibit Three was the sexual predator screening instrument. Appellant's counsel argued appellant's lack of a previous conviction and his successful completion of a sexual offender program mitigated against a finding appellant is sexual predator. In addition, appellant's counsel referred to Exhibit Three, the sexual predator screening instrument, to demonstrate only one of the ten listed factors applied to appellant. After taking all evidence, the trial court adjudicated appellant a sexual predator. Appellant timely filed his notice of appeal and sets forth the following assignments of error. I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO DISMISS THE HOUSE BILL 180 PROCEEDINGS AGAINST HIM ON EX POST FACTO GROUNDS. II. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO DISMISS THE HOUSE BILL 180 PROCEEDINGS AGAINST HIM ON RETROACTIVE APPLICATION GROUNDS. III. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO DISMISS THE HOUSE BILL 180 PROCEEDINGS AGAINST HIM ON DOUBLE JEOPARDY GROUNDS. IV. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO DISMISS BECAUSE HOUSE BILL 180 IS UNCONSTITUTIONALLY VAGUE. V. THE TRIAL COURT ERRED IN CLASSIFYING APPELLANT AS A PREDATOR WITHOUT A RECORD OF CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING. I, II, III IV Appellant's first, second, third, and fourth assignments are overruled on the authority of State v. Nosic (Feb. 1, 1999), Stark App. No. 1997CA00248, unreported; and State v. Bair (Feb. 1, 1999), Stark App. No. 1997CA00232, unreported. V In his fifth assignment of error, appellant contends the trial court erred in classifying him a sexual predator without a record of clear and convincing evidence to support the finding. In the case State v. Cook (1998), 83 Ohio St.3d 404, the Ohio Supreme Court determined R.C. Chapter 2950 is remedial in nature and not punitive. Id. at 417. As such, we review this assignment of error under the standard of review contained in C.E. Morris Co. v. Foley Constr. (1978), 54 Ohio St.2d 279. We are not fact finders; we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-5758, unreported. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. (1978),54 Ohio St.2d 279. R.C. 2950.01(E) defines a "sexual predator" as "* * * a person who has been convicted of or pleaded guilty to committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses." R.C.2950.09(B)(2) sets forth the relevant factors a trial court is to consider in determining whether a person should be classified as a "sexual predator". This statute provides: In making a determination under division (B)(1) and (3) of this section as to whether an offender is a sexual predator, the judge shall consider all relevant factors, including, but not limited to, all of the following: (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 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 one or more threats of cruelty; (j) Any additional behavioral characteristics that contribute to the offender's conduct. In Cook, the Ohio Supreme Court explained, "[a]t the hearing, the offender and the prosecutor have the opportunity to testify, present evidence, and call and examine witnesses and expert witnesses regarding the determination of whether the offender is a sexual predator." Cook, supra at 423. The trial court should follow this procedure in making a sexual predator determination. In the matter sub judice, the trial court, after hearing the arguments of counsel and reviewing the evidence presented at the April 27, 1998 hearing, stated: The Court has reviewed the evidence and is prepared to make a ruling at this time. While the court acknowledges that the Defendant is attempting to make great strides toward rehabilitation [ — ] in the matter of taking the course, you seem to have a sincere interest in advancing. Nonetheless, the Court cannot ignore the fact that a special relationship did exist between you and the victim when you committed the crime. The age differential, the victim was nine, perhaps ten years old at the time when you committed the offense. And you were 20 years her senior. Additionally, you committed this offense over a period of time. It wasn't a one-time offense. There were several instances involving the same victim. The family of the victim and you were friends. The Court cannot ignore that even though there is some evidence which your attorney has presented to the Court to suggest that you were striving to overcome that, your tendency, that's good. For purposes of this hearing, the Court is going to find that you are a sexual predator . . . Transcript at 16-17. The trial court analyzed the facts in light of the above-enumerated statutory factors. Appellant had a social relationship with the victim's parents; therefore, a special relationship existed between appellant and the victim. The trial court noted appellant's age relative to the victim's age, drawing attention to the fact the victim was a child of ten. Additionally, appellant's actions demonstrate a course of conduct because the offense was committed over a period of time and included more than one instance of sexual contact. We find these facts mitigate in favor of the trial court's decision. Accordingly, we find the trial court's classification of appellant as a sexual predator is supported by competent, credible evidence, and is not against the manifest weight of the evidence. Appellant's fifth assignment of error is overruled. Accordingly, the judgment of the Stark County Court of Common Pleas is affirmed. By: Hoffman, J. Wise, P.J. and Edwards, J. concur

2016-07-06 06:41:57.482074+00

OPINION Defendant-appellant Ronnie J. Hensley appeals his conviction and sentence on one count of failure to control (R.C. 4511.202) entered by the Lancaster Municipal Court. Plaintiff-appellee is the State of Ohio.1 STATEMENT OF THE FACTS AND CASE Appellant was involved in a single vehicle accident on July 2, 1997, while operating a semi-tractor rig. Appellant was served with a traffic citation on July 4, 1997, bearing ticket number SD10130. Appellant appeared in Lancaster Municipal Court on July 17, 1997, pursuant to order contained on ticket number SD10130. Apparently, the Ohio State Patrol had not forwarded this citation to the court and the trial court dismissed the case that same day. On July 31, 1997, appellant was issued a second citation bearing ticket number SD10137. Appellant was arraigned on said charge on August 7, 1997, and a trial to the bench was held on August 25, 1997. Appellant appeared pro se at trial. During trial, appellant brought to the trial court's attention the fact that the prior citation had been dismissed "due to lack of evidence." (Tr. at 18). Appellant did not make a motion to dismiss on the basis of speedy trial. Following trial, the trial court found appellant guilty and entered sentence. It is from that conviction and sentence appellant prosecutes this appeal assigning as error: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN FAILING TO DISMISS THIS CASE FOR VIOLATION OF REVISED CODE 2945.71, ET SEQ., THE SPEEDY TRIAL RULE. WHEN A SPEEDY TRIAL VIOLATION IS MANIFEST FROM THE RECORD, IT IS PLAIN ERROR FOR THE TRIAL COURT TO FAIL TO DISMISS A MINOR MISDEMEANOR INVOLVING A PRO SE DEFENDANT. We overrule this assignment of error. Herein, appellant argues once the trial court was made aware of the prior dismissal from which it was clearly apparent that the trial was commenced beyond the time limits specified under R.C.2945.71(A), and because strict procedural requirements should be relaxed when dealing with a pro se defendant, the trial court committed plain error by not sua sponte dismissing the case. We disagree. Appellant concedes he did not make a motion to dismiss on speedy trial grounds. Having failed to do so, we find he waived any such claim or error. State v. Williams (1977), 51 Ohio St.2d 112. The judgment of the Lancaster Municipal Court is affirmed. By: Hoffman, J., Farmer, P.J. and Gwin, J. concur. JUDGMENT ENTRY CASE NO. 97CA57 For the reason stated in our accompanying Memorandum-Opinion, the judgment of the Lancaster Municipal Court is affirmed. 1 Appellee did not file a brief in this Court.

2016-07-06 06:41:57.579736+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JUDGMENT WRIT DENIED. PETITION FOR WRIT OF MANDAMUS AND PROHIBITION. Relator is the plaintiff/wife in Resnick v. Resnick, Cuyahoga County Court of Common Pleas, Division of Domestic Relations, Case No. D-235594. In Case No. D-235594, defendant/husband sought a post-decree modification of child support and the shared parenting arrangement. After the magistrate issued a decision, inter alia, decreasing the obligation of defendant/husband to pay child support and increasing the time husband/defendant spends with the children, the parties filed objections. Respondent judge also issued an interim order which he extended for a second twenty-eight day period under Civ.R. 53 (E) (4) (c). On September 24, 1999, at the conclusion of the second twenty-eight day period under Civ.R. 53 (E) (4) (c), respondent judge issued a judgment entry. In the September 24, 1999 judgment entry, respondent notes that unforeseen complications, due to a computer breakdown, have interfered with the court reporter's ability to prepare the transcript required to review the parties' objections. As a consequence, respondent issued a temporary possession order. Relator contends that the September 24, 1999 judgment entry effectively extends the interim order beyond the period authorized by Civ.R. 53 (E) (4) (c) and is, therefore, contrary to law. Relator requests that this court: compel respondent to vacate the September 24, 1999 judgment entry; and prohibit respondent from enforcing the September 24, 1999 judgment entry. Respondent has filed a motion to dismiss or, in the alternative, for summary judgment. Respondent argues that prohibition does not lie because respondent had jurisdiction to issue the September 24, 1999 judgment entry and because relator has an adequate remedy by way of appeal. Respondent also argues that mandamus does not lie because mandamus may not issue to control the exercise of discretion by a court, i.e., whether respondent vacates the September 24, 1999 judgment entry, and because relator has an adequate remedy by way of appeal. Civ.R. 53 (E) (4) (c) provides: The court may adopt a magistrate's decision and enter judgment without waiting for timely objections by the parties, but the filing of timely written objections shall operate as an automatic stay of execution of that judgment until the court disposes of those objections and vacates, modifies, or adheres to the judgment previously entered. The court may make an interim order on the basis of the magistrate's decision without waiting for or ruling on timely, objections by the parties where immediate relief is justified. An interim order shall not be subject to the automatic stay caused by the filing of timely objections. An interim order shall not extend more than twenty-eight days from the date of its entry unless, within that time and for good cause shown, the court extends the interim order for an additional twenty-eight days. (Emphasis added.) Relator argues, therefore, that respondent lacked jurisdiction to issue the September 24, 1999 judgment — which relator asserts effectively extends the interim order — because respondent had already extended the interim order for the second and final twenty-eight day period authorized by Civ.R. 53 (E) (4) (c). We must examine the scope of respondent's jurisdiction in order to determine relator's claim in prohibition. The principles governing prohibition are well established. Its requisites are (1) the respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is no adequate remedy at law. State ex rel. Largent v. Fisher (1989), 43 Ohio St.3d 160, 540 N.E.2d 239. Furthermore, if a petitioner had an adequate remedy, relief in prohibition is precluded, even if the remedy was not used. State ex rel. Lesher v. Kainrad (1981), 65 Ohio St.2d 68, 417 N.E.2d 1382, certiorari denied (1981), 454 U.S. 845; Cf. State ex rel. Sibarco Corp. v. City of Berea (1966), 7 Ohio St.2d 85, 218 N.E.2d 428, certiorari denied (1967), 386 U.S. 957. Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause which it is attempting to adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe (1941), 138 Ohio St. 417, 35 N.E.2d 571, paragraph three of the syllabus. "The writ will not issue to prevent an erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction." State ex rel. Sparto v. Juvenile Court of Darke County (1950), 153 Ohio St. 64. 65, 90 N.E.2d 598. Furthermore, it should be used with great caution and not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas (1940), 137 Ohio St. 273, 28 N.E.2d 273; Reiss v. Columbus Municipal Court (App. 1956), 76 Ohio Law Abs. 141, 145 N.E.2d 447. Nevertheless, when a court is patently and unambiguously without jurisdiction to act whatsoever, the availability or adequacy of a remedy is immaterial to the issuance of a writ of prohibition. State ex rel. Tilford v. Crush (1988), 39 Ohio St.3d 174, 529 N.E.2d 1245 and State ex rel. Csank v. Jaffe (1995), 107 Ohio App.3d 387. However, absent such a patent and unambiguous lack of jurisdiction, a court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction. A party challenging the court's jurisdiction has an adequate remedy at law via appeal from the court's holding that it has jurisdiction. State ex rel. Rootstown Local School District Board of Education v. Portage County Court of Common Pleas (1997), 78 Ohio St.3d 489, 678 N.E.2d 1365 and State ex rel. Bradford v. Trumbull County Court (1992), 64 Ohio St.3d 502, 597 N.E.2d 116. State ex rel. Wright v. Griffin (July 1, 1999), Cuyahoga App. No. 76299, unreported, at 5-7. In State ex rel. Soukup v. Celebrezze (1998), 83 Ohio St.3d 549, 700 N.E.2d 1278, the Supreme Court affirmed this court's judgment denying the relator's request for relief in prohibition to prevent a domestic relations court judge from reinstating, a post-divorce contempt proceeding. Under Civ.R. 75 (I) [now 75 (J)], the continuing jurisdiction of a court that issues a domestic relations decree "may be invoked by the filing of any motion by a party." Blake v. Heistan (1994), 99 Ohio App.3d 84, 87, 649 N.E.2d 1304, 1305-1306. A post-decree show-cause motion filed by a party invokes both the inherent power of a domestic relations court to enforce its own orders and the court's continuing jurisdiction under Civ.R. 75 (I). See, generally, 2 Sowald Morganstern, Domestic Relations Law (1997) 164, Section 25.44. Id. at 551 (footnote deleted) In the September 24, 1999 judgment entry, respondent considered several, post-decree motions filed by the parties in Case No. D-235594. Respondent argues that he had jurisdiction to issue that judgment entry. The parties do not dispute that respondent has jurisdiction over the parenting issues pending before the division of domestic relations. Furthermore, R.C. 3105.011 provides, in part: "The court of common pleas including divisions of courts of domestic relations, has full equitable powers and jurisdiction appropriate to the determination of all domestic relations matters." InLehman v. Lehman (May 4, 1995), Cuyahoga App. No. 67483; unreported, appellant/husband appealed the ruling of the division of domestic relations on a post-decree motion to show cause. Pursuant to R.C. 3105.011, domestic relations courts have full equitable powers and jurisdiction. Ohio domestic relations courts, by both statute and common law, have and may exercise authority in accordance with established rules of equity. Such courts, therefore, do not abuse their discretion when they apply equitable rules. See, Miller v. Miller (1993), 92 Ohio App.3d 340; May [May v. May (1993), 63 Ohio Misc.2d 207]. Lehman, supra, at 10. The parties have not provided this court with any authority arising from circumstances comparable to those confronting respondent. That is, due to a computer failure, the parties were unable to timely prepare the complete transcript required by Civ.R. 53 (E) (3) (b) for respondent to dispose of the parties' objections to the magistrate's decision. Respondent had the authority to determine whether he could exercise jurisdiction and fashioned a remedy in response to the circumstances confronting the court. As a consequence, we conclude that respondent was not patently and unambiguously without jurisdiction. We also conclude that relator has an adequate remedy at law by way of appeal. In State ex rel. Zammarrelli v. Ruben (Jan. 22, 1998), Cuyahoga App. No. 73414, unreported, the relator/mother sought a writ of prohibition to prevent a judge of the juvenile division from proceeding with a dependency proceeding in which the respondent judge had granted emergency temporary custody of the child to the father. After juvenile court denied the relator's motion to vacate or dismiss for lack of jurisdiction, this court dismissed the relator's appeal for lack of a final appealable order. We granted the motion for summary judgment filed by respondent judge in the prohibition action and concluded: "The relator possesses an adequate remedy at law, which challenges the denial of her motions to dismiss, once she has obtained a final appealable order from respondent-Judge Ruben. State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335."Zammarrelli, supra. Although relator in this action complains that appeal is not adequate because the underlying matter involves parenting issues,Zammarrelli demonstrates that appeal is an adequate remedy. As a consequence, the availability of appeal bars relief in both prohibition and mandamus. Respondent also argues that it would be inappropriate for this court to issue a writ of mandamus compelling respondent to vacate the September 24, 1999 judgment entry. Respondent contends that granting the relief requested by relator would interfere with the exercise of discretion by respondent. We agree. This court may only compel an inferior tribunal to exercise its discretion, not how to exercise its discretion. R.C. 2731.03 provides: The writ of mandamus may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion. See also State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118,515 N.E.2d 914. Whether a judgment or order should be vacated is a matter for a trial court's discretion. See Kadish, Hinkel Weibel Co., L.P.A. v. Rendina (June 15, 1998), Cuyahoga App. No. 72459, unreported. Relief in mandamus would, therefore, be inappropriate because relator is requesting that this court compel respondent to vacate the September 24, 1999 judgment entry. Accordingly, respondent's motion to dismiss or, in the alternative, for summary judgment is granted. Relator to pay costs. Writ denied. JAMES M. PORTER, A.J. and MICHAEL J. CORRIGAN, J., CONCUR. _________________________ JAMES D. SWEENEY, Judge

2016-07-06 06:41:57.617373+00

OPINION On January 2, 2001, Newark Police Officer Doug Bline stopped appellant, Ivan Burton, for speeding. Upon investigation, Officer Bline discovered appellant did not have a valid driver's license. Officer Bline placed appellant in the police cruiser and conducted an inventory search of the vehicle wherein he found crack cocaine inside the glove compartment. On March 2, 2001, the Licking County Grand Jury indicted appellant on one count of possession of cocaine in violation of R.C.2925.11. On April 12, 2001, appellant filed a motion to suppress, claiming an illegal search. A hearing was held on May 23, 2001. By judgment entry filed August 13, 2001, the trial court denied said motion. On August 22, 2001, appellant pled no contest to the charge. By judgment entry filed same date, the trial court found appellant guilty and sentenced him to five years in prison. Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE MOTION TO SUPPRESS FILED BY THE DEFENDANT-APPELLANT. I Appellant claims the trial court erred in denying his motion to suppress. We disagree. 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 findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are again the manifest weight of the evidence. State v. Fanning (1982), 1 Ohio St.3d 19;State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger (1993),86 Ohio App.3d 592. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. State v. Williams (1993), 86 Ohio App.3d 37. Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, 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 any given case. State v.Curry (1994), 95 Ohio App.3d 93; State v. Claytor (1993),85 Ohio App.3d 623; Guysinger. As the United States Supreme Court held in Ornelas v. U.S. (1996), 116 S.Ct. 1657, 1663, ". . . as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Appellant argues the inventory search of his vehicle without a warrant was unlawful. Appellant argues the search was not made in good faith nor was it a valid inventory search. As pointed out by appellee, the State of Ohio, this court does not need to discuss the validity of the inventory search of the vehicle because said search was made incidental to the arrest. Appellee cites two cases in support, State v. Gibson (December 7, 1994), Summit App. No. 16699, unreported, and State v. Lowry (June 17, 1997), Ross App. No. 96CA2259, unreported. Both cases cite to a United States Supreme Court case, NewYork v. Belton 1981), 453 U.S. 454. The Bellton court held "where officers observe marijuana prior to an automobile search, such officers have probable cause to search the automobile for additional marijuana or evidence of marijuana use." Gibson at 3; Lowry at 6. Officer Bline testified he observed appellant's vehicle in the area of a known drug house, followed it and clocked it going 37 m.p.h. in a 25 m.p.h. zone. T. at 6-8. Officer Bline stopped appellant whereupon appellant admitted to having no driver's license or driving privileges. T. at 9. Officer Bline arrested appellant for driving under suspension, handcuffed him and placed him in the police cruiser. T. at 9, 11. Back-up officers arrived and Officer Bline commenced an inventory search of the vehicle. T. at 10-11. The search led to the discovery of crack cocaine in the glove compartment. T. at 11. In United States v. Ross (1982), 456 U.S. 798, 825, the Supreme Court of the United States held "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." In examining the overlap of Belton and Ross, Professor Lewis R. Katz explained the following: The two rules overlap, however, and when considered together will permit warrantless searches in an overwhelming number of cases. The Belton rule permits a search of the interior compartment of the vehicle only, and all containers found within that compartment, following any `custodial arrest' of an occupant of the vehicle. There need not be independent probable cause to believe that weapons or evidence will be found in the compartment. Consequently, anytime a motorist is stopped for an offense that under the Code permits an arrest, rather than mandates issuance of a summons, the officer may conduct a search of the interior compartment or any container in that compartment that arouses his curiosity. Katz, Ohio Arrest, Search and Seizure (2001 Ed.) 231, Section 12.5. The suspicion or cause to believe there would be evidence of a crimesub judice is the observation of appellant immediately preceding his arrest. Officer Bline was observing a "known drug house" and witnessed appellant's vehicle pull in to the driveway of the house and quickly pull out. T. at 6, 8. Officer Bline was in a marked cruiser and believed he "had been made." T. at 8. Under Belton, after a lawful arrest, an officer with reasonable curiosity or suspicion, such as described in this case, can conduct a warrantless search of the vehicle. Further, after examining the record, it is clear that Officer Bline was in fact conducting a valid inventory search. The vehicle's only passenger, the driver, was under arrest and back-up police had been called for assistance. The search was done pursuant to the requirements of the Newark Police Department. T. at 11-12. Appellant argues the search was not a valid inventory search because the wrecker was not called until after the discovery of the drugs. T. at 24. Officer Bline testified he did not call the wrecker right away because "I wasn't going to be needing it right away because I need to take photographs and I didn't have a camera in my cruiser and somebody had to go back and get that." T. at 23. In examining the totality of the circumstances, we find a valid inventory search given Officer Bline's testimony. The sole assignment of error is denied. The judgment of the Court of Common Pleas of Licking County, Ohio is hereby affirmed. JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. By Farmer, J., Gwin, P.J., and Wise, J. concur.

2016-07-06 06:41:57.645678+00

OPINION {¶ 1} Defendant-appellant, Garold E. Ward, appeals a decision of the Clermont County Court of Common Pleas convicting him on numerous counts of tax-related offenses and sentencing him to 87 months in prison. For the reasons outlined below, we affirm in part and reverse in part. {¶ 2} On October 29, 2003, a grand jury returned a 91-count indictment against appellant for various tax-related crimes in connection with his garden supply business. Appellant failed to obtain the requisite vendor's licenses and to file sales and state income tax returns for a period of time spanning from 1998 through October 2003. The total arrearage amounted to $187,796. Appellant entered his initial guilty plea on June 28, 2004. The plea encompassed seven counts of income tax prohibitions in violation of R.C. 5747.19, a fourth degree felony; three counts of failing to remit sales taxes in violation of R.C. 5747.99(E), a fourth-degree felony; and one count of aggravated theft in violation of R.C. 2913.02(A)(1), a third-degree felony. The remaining counts were dismissed. At the August 4, 2004 sentencing hearing, the court imposed a total prison term of 87 months after denying appellant's oral motion to withdraw his guilty plea. The aggregate term consisted of seven 17-month terms for income tax prohibitions, to run concurrently with the 36-month term imposed for aggravated theft, and three 17-month terms for failing to remit sales taxes, to run consecutive to each other and to the 36-month term. {¶ 3} On January 25, 2005, following the voluntary dismissal of an appeal, appellant's plea was vacated due to a number of clerical errors in the indictment. The indictment was amended to reflect, inter alia, that the counts pertaining to income tax prohibitions and failing to remit sales taxes were fifth degree rather than fourth-degree felonies. Appellant pled guilty to the same counts, as amended. {¶ 4} On February 16, 2006, prior to sentencing, appellant submitted a letter to the court expressing his desire to withdraw the guilty plea. The letter described the despair and confusion experienced by appellant and his family following entry of the plea, attributing this in part to misinformation communicated through appellant's allegedly inept defense attorney. The letter informed the court that appellant had retained new counsel, and requested that he be permitted to vacate the guilty plea. The court held a hearing, at the conclusion of which it denied the motion. On August 8, 2005, the court imposed the same sentence as before, with minor changes that did not affect the aggregate 87-month term. Appellant timely appealed, raising four assignments of error which we will address slightly out of order. {¶ 5} Assignment of Error No. 1: {¶ 6} "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO VACATE HIS PLEA PRIOR TO SENTENCING." {¶ 7} In his first assignment of error, appellant argues that the trial court abused its discretion in refusing to allow him to withdraw his guilty plea because the plea was uninformed and coerced. {¶ 8} Prior to accepting a guilty plea, the trial court must personally address the defendant to determine that the plea is made voluntarily and that the defendant comprehends the crimes charged, the maximum penalties, as well as his ineligibility for probation or community control sanctions, if applicable. Crim.R. 11(C)(2)(a). The court must also ensure that the defendant understands that the court may enter judgment and impose sentence upon acceptance of the guilty plea. Crim.R. 11(C)(2)(b). A defendant may withdraw his plea prior to sentence, or subsequent to sentence if necessary to remedy a "manifest injustice." Crim.R. 32.1. {¶ 9} Although a motion to withdraw a presentence guilty plea should be liberally granted, this does not amount to an absolute right on the part of the movant. State v. Xie (1992),62 Ohio St.3d 521, 527. The trial court must conduct a hearing on the motion to decipher "whether there is a reasonable and legitimate basis for the withdrawal of the plea." Id. The court's decision to grant or deny a motion to vacate a plea will not be overturned on appeal absent an abuse of discretion. Id. An abuse of discretion implies that the court's decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. State v. Adams (1980), 62 Ohio St.2d 151, 158. {¶ 10} A reviewing court may examine a number of factors in resolving whether the trial court abused its discretion in refusing to grant a presentence motion to withdraw a guilty plea. These factors include whether the accused was represented by competent counsel, afforded a full Crim.R. 11 hearing prior to entering the plea, given a complete and impartial hearing on the motion to vacate, and whether the trial court fully and fairly considered the withdrawal request. State v. Burns, Butler App. No. CA2004-07-084, 2005-Ohio-5290, ¶ 13. Additionally, the reviewing court may consider the timing of the motion, the proffered reasons for the withdrawal, the existence of a meritorious defense, and whether the state would have been prejudiced by the withdrawal. Id. Accord State v. Metcalf, Butler App. No. CA2002-12-299, 2003-Ohio-6782. {¶ 11} After thoroughly reviewing the record, we conclude that the trial court did not abuse its discretion in denying appellant's withdrawal motion. Appellant underwent two Crim.R. 11 examinations during which the court thoroughly reviewed the offenses. Twice the court notified appellant that it was not too late to change his mind as to his plea, and twice appellant expressed his desire to go forward. Appellant indicated that he understood the nature of the charges, the penalties involved, and the rights he was surrendering by pleading guilty. He affirmed that he had discussed the charges and potential penalties with his attorney. He asked the court if he would receive credit for time already served. The trial court concluded that appellant's guilty plea was "knowingly, intelligently, and voluntarily made[.]" In view of the fact that the court set the date for sentencing at the conclusion of the hearing, appellant cannot now claim that he did not know sentencing would soon follow. {¶ 12} Appellant was also given a complete hearing on his motion to vacate the guilty plea. At this hearing, the court permitted appellant's replacement counsel to present arguments supporting the motion. The court also heard testimony from appellant, his wife, and his mother. In summary, all three reported feeling pressured, scared, and confused as a result of the alleged poor treatment and substandard advice of the original defense counsel. They decried the attorney as a purportedly harsh and indifferent individual who "ordered" appellant to plead guilty and chastised appellant for his odious moral character. Appellant insists that this "hostile climate" rendered his guilty plea involuntary. {¶ 13} Appellant's argument is without merit. During the motion hearing, the trial court insisted that it had "bent over backwards to try to make sure [appellant] [understood] what [was] going on" at his plea hearings. Discordant relations with his first attorney, while unfortunate, and if true, do not alone render appellant's plea involuntary. Further, appellant did not maintain his innocence or present a viable defense. Appellant consistently conceded that he committed the offenses, rationalizing his conduct by citing a thieving business partner and economic failure of the business. {¶ 14} In view of appellant's open admission of guilt, it appears that he suffered a change of heart after discussing the resubmitted guilty plea with his family. Appellant openly cited his desire to avoid a prison sentence so that he could remain free to work. His withdrawal motion, then, essentially amounted to a desire to evade prison rather than to assert his innocence. "A defendant who has a change of heart regarding his guilty plea should not be allowed to withdraw that plea just because he realizes that an unexpected sentence may be imposed." State v.Hamblin (Mar. 26, 2001), Butler App. No. CA2000-071-54, at 5-6. {¶ 15} As stated, although appellant filed his motion to withdraw prior to sentencing, this does not convert appellant's request to an absolute right. See Xie, 62 Ohio St.3d at 527. We conclude that the trial court did not abuse its discretion in denying appellant's motion. Appellant's first assignment of error is overruled. {¶ 16} Assignment of Error No. 3: {¶ 17} "THE TRIAL COURT ERRED IN NOT SENTENCING APPELLANT TO THE SHORTEST PRISON TERM." {¶ 18} Assignment of Error No. 4: {¶ 19} "THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO SERVE CONSECUTIVE SENTENCES." {¶ 20} In his third and fourth assignments of error, appellant maintains that the imposition of nonminimum, consecutive sentences based on facts neither found by a jury nor admitted by appellant infringed upon his Sixth Amendment rights and violated the rule set out by the United States Supreme Court in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531. {¶ 21} In State v. Foster, ___ Ohio St.3d ___,2006-Ohio-856, the Ohio Supreme Court ruled that certain Ohio sentencing laws requiring judicial fact-finding prior to the imposition of nonminimum or consecutive sentences are unconstitutional in light of Blakely, 542 U.S. 296. As a result of the high court's severance of the applicable provisions from Ohio's sentencing code, judicial fact-finding prior to the imposition of a sentence within the basic ranges of R.C.2929.14(A) is no longer required. Foster at paragraph two of the syllabus. See, also, State v. Mathis, ___ Ohio St.3d ___,2006-Ohio-855, paragraph three of the syllabus. {¶ 22} The Foster court mandated that all cases pending on direct review in which the unconstitutional sentencing provisions were applied be remanded for resentencing. Id. at ¶ 104. The court refined this holding to exclude sentences that a defendant failed to appeal. State v. Saxon, ___ Ohio St.3d ___,2006-Ohio-1245, paragraph three of the syllabus. This admonition does not constrain the present matter, however, in view of the fact that appellant assigned as errors the trial court's imposition of consecutive and nonminimum sentences. See id. Accordingly, we remand this case for resentencing consistent withFoster. Appellant's third and fourth assignments of error are sustained. {¶ 23} Assignment of Error No. 2: {¶ 24} "THE TRIAL COURT ERRED IN FINDING APPELLANT NOT AMENABLE TO COMMUNITY CONTROL SANCTIONS." {¶ 25} In his second assignment of error, appellant contends that the trial court erred in finding that he was not amenable to community control upon sentencing. See R.C. 2929.13(B)(2)(a). This argument has been rendered moot by our disposition of appellant's third and fourth assignments of error vacating his sentence and remanding for resentencing. We thus need not address appellant's second assignment of error. See App.R. 12(A)(1)(c). {¶ 26} Having reviewed the assignments of error, we affirm the trial court's denial of appellant's motion to vacate his guilty plea. However, we reverse the court's sentencing decision, vacate the sentence, and remand this matter for resentencing in accordance with this opinion. Powell, P.J., and Walsh, J., concur.

2016-07-06 06:41:58.103595+00

DECISION. {¶ 1} Defendant-appellant Midwest Music Distributors, Inc., ("Midwest"), appeals the trial court's denial of its Civ.R. 60(B) motion to set aside a default judgment entered for plaintiff-appellee Cincinnati Bell Directory, Inc. ("Bell"). {¶ 2} While we prefer judgments on the merits of a case, we cannot set aside a default judgment when 20 months had passed between the receipt of the complaint and the motion to set aside the judgment. And we believe, as did the trial court, that a corporate officer authorized to sign checks was also authorized to sign a certified-mail receipt. I. Advertisement Disagreement {¶ 3} In March 2003, Bell sued Midwest for failing to pay for advertisements run in Cincinnati Bell regional publications. Bell then perfected service through certified mail at Midwest's usual place of business five days later. When Midwest failed to answer the complaint, Bell moved for a default judgment, and one was entered for $35,667.98 in May 2003. {¶ 4} During the summer of 2004, Bell executed three successful bank garnishments. Midwest claimed that it never received notice of the complaint and was not aware of the default judgment until Bell made these garnishments. {¶ 5} In January 2005, Midwest moved to set aside the default judgment under Civ.R. 60(B) and filed a revised motion supported by an affidavit the next month. Midwest denied that an employee had signed for the complaint and argued that if an employee had signed for the complaint, that employee did not have the authority to do so and had failed to notify an appropriate authority at Midwest. {¶ 6} Midwest further alleged that it did not contract with Bell for advertising services for the years 1999, 2000, and 2001, and thus that it had a meritorious defense to the default judgment. {¶ 7} The trial court overruled Midwest's Civ.R. 60(B) motion. In doing so, the trial court found that the signature of Rusty Thompson, with various titles of "V.P., G.M., or Partner," appeared on the advertising orders for 2000 and 2001, and that Thompson wrote out a Midwest check for $2,300 in March 2004 in an attempt to pay down the delinquent account. The trial court also found that Thompson's signature on the advertising agreements matched the signature on the certified-mail receipt for service of the complaint. The trial court found no merit in Midwest's contention that Thompson was not its agent. II. Setting Aside Default Judgments {¶ 8} The issue presented is whether the trial court abused its discretion when it denied Midwest's Civ.R. 60(B) motion to set aside the default judgment. An abuse of discretion connotes an attitude on the part of the court that is unreasonable, unconscionable, or arbitrary.1 Unreasonable means that no sound reasoning process supports the decision.2 {¶ 9} Under Civ.R. 60(B), a court may relieve a party from a final judgment, order, or proceeding for a number of reasons: "(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment." The rule further provides that a motion should be made within a reasonable time — and for reasons (1), (2), and (3), it should not be more than one year after the judgment, order, or proceeding was entered.3 {¶ 10} Thus, a party seeking relief from a default judgment under Civ.R. 60(B) must show (1) the existence of a meritorious defense, (2) entitlement to relief under one of the grounds set forth in the rule, and (3) that the motion is made within a reasonable time.4 {¶ 11} Midwest contends that it met all three elements for the granting of its Civ.R. 60(B) motion to set aside the default judgment. In particular, Midwest asserts that (1) it had a meritorious defense — it did not contract for advertising services for the years 1999-2001; (2) it was entitled to relief under Civ.R. 60(B)(5) because it did not receive actual notice of the complaint; and (3) it filed its motion within a reasonable time, since it did not become aware of the default judgment until after Bell had started to make garnishments. None of Midwest Music's arguments strike a cord. {¶ 12} While cases generally should be decided on the merits, we cannot ignore the requirements of Civ.R. 60(B). The rule is an attempt by the Ohio Supreme Court to "strike a proper balance between the conflicting principles that litigation must be brought to an end and justice should be done."5 {¶ 13} In the present case, this litigation must end. Attached to Bell's response to Midwest's Civ.R. 60(B) motion were copies of the advertising agreements from 2000 and 2001 signed by Rusty Thompson, once in the capacity of "G.M and Partner" and twice as "V.P." Bell also submitted a check signed by Thompson in June 2004 that was intended to repay the delinquent account with Bell. The trial court concluded that Thompson's signature on these contracts and the check was exactly the same signature on the certified-mail receipt of service of Bell's complaint upon Midwest. We have examined the signatures — they are exactly alike. Therefore, Midwest did not have a meritorious defense to the default judgment. {¶ 14} As to the second element, Midwest claims that its motion fell under Civ.R. 60(B)(4) and (5). We fail to see how Civ.R. 60(B)(4) was implicated — no judgment had been satisfied, released, or discharged, and the prior judgment had not been reversed. And as for the catch-all provision of Civ.R. 60(B)(5) ("any other reason justifying relief from judgment"), we are not willing to extend it to include a situation where a "V.P., G.M, or Partner" of a business personally receives a complaint and then fails to respond for a year and eight months. {¶ 15} We agree with Midwest that failure to receive notice of a complaint is grounds for a court to set aside a judgment under Civ.R. 60(B)(5).6 But that did not happen in this instance — there was a signature on the certified-mail receipt of the complaint — and it appeared to be that of Thompson, a person who used titles of "V.P., G.M., and Partner" on various advertising contracts, and who later signed checks for Midwest. Under traditional agency principles, Midwest cannot claim that it did not receive notice. {¶ 16} Finally, while Midwest argues that it moved to set aside the default judgment in a reasonable time, this contention is meritless. Midwest would like us to believe that it did not have notice of the default judgment until Bell started to garnish monies from Midwest's bank accounts. Midwest did file its Civ.R. 60(B) motion within seven months of the garnishments. (Even that seems a bit tardy when a bank account is being raided.) But this was more than a year and eight months after Thompson had certified the receipt of the complaint. This was not within a reasonable time. {¶ 17} We note that Midwest blames its failure to respond to the complaint on a "corporate representative [who] failed to notify the appropriate party of the pending action." This attempt to backdoor a reasonable-time argument under Civ.R. 60(B)(1)'s grounds of excusable neglect will not work. Midwest was simply too late. {¶ 18} For the foregoing reasons, we are not convinced that the trial court abused its discretion by overruling Midwest's motion to set aside the default judgment in favor of Bell. Its judgment is accordingly affirmed. Judgment affirmed. Hildebrandt, P.J., and Gorman, J., concur. 1 See Franklin City Sheriff's Department v. State Emp.Relations Bd. (1992), 63 Ohio St.3d 498, 506, 589 N.E.2d 24. 2 See AAAA Enterprises, Inc. v. River Place Community UrbanRedevelopment Corp. (1990), 50 Ohio St.3d 157, 161,553 N.E.2d 597; State v. Echols (1998), 128 Ohio App.3d 677, 669-670,716 N.E.2d 728. 3 Civ.R. 60(B). 4 See GTE Automatic Electric v. ARC Industries (1976),47 Ohio St.2d 146, 150-151, 351 N.E.2d 113. 5 See Doddridge v. Fitzpatrick (1978), 53 Ohio St.2d 9, 12,371 N.E.2d 214, quoting 11 Wright Miller, Federal Practice Procedure (1973) 140, Section 2851. 6 See Riley v. Cleveland Television Network, 8th Dist. No. 83752, 2004-Ohio-3299.

2016-07-06 06:42:04.255167+00

DECISION AND JUDGMENT ENTRY {¶ 1} Appellant, Bernard Williams, appeals his sentence from the Lucas County Court of Common Pleas on the charge of attempted burglary, in violation of R.C. 2923.02 and 2911.12(A)(2). Because we find that the trial court made all of the appropriate findings and did not err by imposing more than the minimum sentence, we affirm. {¶ 2} On July 26, 2002, Williams was indicted by the grand jury on burglary, a felony of the second degree, in violation of R.C. 2911.12(A)(2). On October 11, 2002, Williams withdrew his plea of not guilty and entered a plea of no contest to the lesser offense of attempted burglary, a felony of the third degree, in violation of R.C. 2923.02 and 2911.12(A)(2). Williams was sentenced to three years in prison. {¶ 3} Williams sets forth the following two assignments of error: {¶ 4} "I. The trial court erred when it sentenced appellant to jail believing that he entered a guilty plea to a felony two rather than a felony three. {¶ 5} "II. The trial court erred when it sentenced the appellant to prison for a term of three (3) years." {¶ 6} In the first assignment of error, Williams contends that the trial court erred by sentencing him to a felony of the second degree after he entered a no contest plea to a felony of the third degree. The trial court's sentencing entry filed November 20, 2002, states in pertinent part: "The Court finds that defendant has been convicted of ATTEMPTED BURGLARY, a violation of R.C. 2923.02 2911.12(A)(2), a felony of the 2nd degree. It is ORDERED that defendant serve a term of 3 years in prison." {¶ 7} After Williams filed this appeal, the trial court issued a Nunc Pro Tunc entry on June 23, 2003, at the request of the state, identifying the offense as a felony of the third degree. "Once a notice of appeal has been filed, a trial court's jurisdiction is limited to taking action which is not inconsistent with the reviewing court's jurisdiction. Accordingly, once a defendant appeals a sentence in a criminal case, any action by the trial court regarding sentencing would be inconsistent with an appellate court's jurisdiction to reverse, modify or affirm the judgment and would therefore be void. Notwithstanding this general rule, Crim.R. 36(A) [sic] permits a trial court to correct clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission at any time. The tool utilized to correct such errors is generally a nunc pro tunc entry. The term `clerical mistake' refers to a mistake or omission, mechanical in nature and apparent on the record, which does not involve a legal decision or judgment. Furthermore, while courts possess authority to correct errors in judgment entries so that the record speaks the truth, nunc pro tunc entries are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided or what the court intended to decide." State v. Rowland, 3rd Dist. No. 5-01-39, 2002-Ohio-1421, at ¶ 10-11. (Citations omitted.) {¶ 8} At Williams' sentencing hearing, the trial court stated "The offense was this. According to the pre-sentence report, on July 18, 2002, the defendant pushed in a window air conditioner and started to enter the victim's apartment. The victim was present and she confronted the defendant. He ran, was caught by a neighbor. He pled to a felony of the third degree, burglary. He said he thought it was a friend's house and the friend owed him money. He pled to a felony of the third degree, as I say, a burglary case." From this, it is clear that the trial court knew that Williams pled guilty to a felony of the third degree and that its judgment entry, filed November 20, 2002, contained a clerical mistake which the trial court has now corrected. {¶ 9} Therefore, we find that Williams' first assignment of error is moot. {¶ 10} In the second assignment of error, Williams contends that the trial court erred in sentencing him to prison for a term of three years. He argues that after balancing the factors under R.C. 2929.12, the court should have sentenced him to a term of community control and not to prison. {¶ 11} An appellate court may not disturb an imposed sentence unless it finds by clear and convincing evidence that the sentence is not supported by the record or is contrary to law. R.C. 2953.08(G). Clear and convincing evidence is that evidence "which will produce 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. {¶ 12} When sentencing a defendant, R.C. 2929.11(A) requires that the trial court be "guided by the overriding purposes of felony sentencing," which are to protect the public from future crime and to punish the offender. Pursuant to R.C. 2929.11(B), the trial court must impose a sentence "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes by similar offenders." Unless a mandatory prison term is required, the trial court has discretion to determine the most effective way of achieving those purposes and principles, but the court must consider factors set forth in subdivisions (B), (C), (D) and (E) of R.C. 2929.12. These factors relate to the seriousness of the offense and the likelihood that the offender will commit future crimes. The sentencing court also may consider additional factors that it finds relevant to achieving the R.C. 2929.11 purposes and principles of sentencing. R.C.2929.12(A). {¶ 13} Williams was convicted of burglary, a felony of the third degree. Pursuant to R.C. 2929.14(A)(3), the prison terms possible for a third-degree felony are one, two, three, four, or five years. The sentencing guidelines in R.C. 2929.13(C), however, do not provide a presumption in favor of either a prison sentence or community control for third-degree felonies. The choice is left to the discretion of the sentencing judge. {¶ 14} Williams was sentenced to three years in prison, which is within the permissible range of the prison terms. At the sentencing hearing, the trial court noted that the offense had, and continues to have, a severe impact on the victim. As a result of the incident, she was no longer comfortable in her home and was so frightened that she moved her residence. This evidence supports a finding under R.C. 2929.12(B)(2) that Williams' offense was more serious. The trial court also detailed Williams' extensive criminal history, including the fact that Williams had served time in the penitentiary for aggravated burglary. These previous offenses were considered by the court who decided it was more likely that Williams would commit future crimes (R.C.2929.12(D)(2).) This consideration also made Williams eligible for a prison sentence greater than the minimum term (R.C.2929.14(B).) {¶ 15} Williams, however, contends that the trial court erred by not finding pursuant to R.C. 2929.12(C)(3) that his conduct was less serious because he did not cause or expect to cause physical harm to any person or property. He maintains that he was looking for a friend who owed him money. Nevertheless, Williams intentionally pushed in a window air conditioning unit to gain access to the apartment. This is not a typical means of entry and belies Williams' contention. {¶ 16} Williams also argues that it is less likely that he will commit future offenses because he had led a law abiding life for a significant number of years, R.C. 2929.12(E)(3); the offense was committed under circumstances not likely to recur, R.C. 2929.12(E)(4); and he has genuine remorse for the offense, R.C. 2929.12(E)(5). The record does not support Williams' argument. The presentence investigation report details Williams' criminal history. It included previous burglary and aggravated burglary convictions. While there were six years from 1992 to 1998, that Williams was not convicted of a criminal offense, other than traffic offenses, Williams has been convicted of four offenses since 1998. Williams' offense immediately preceding this one was a drug charge in May 2002. Findings under R.C.2929.12(E)(3) and (4) cannot be established. Finally, it is firmly accepted that the trial court is in the best position to address the sincerity and genuineness of the defendant's statements and the statements of others on his behalf. State v.Nutter, 3rd Dist. No. 16-01-06, 2001-Ohio-2253. Therefore, we cannot find that the trial court erred in failing to find that Williams showed genuine remorse. {¶ 17} We, therefore, conclude that the trial court did not err in sentencing Williams to prison for a term of three years and find that Williams' second assignment of error is not well-taken. {¶ 18} Based on the above, we find that substantial justice was done to the appellant, and thus, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal. Judgment Affirmed. Knepper, Pietrykowski and Lanzinger, JJ., concur.

2016-09-29 01:24:04.980314+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=867&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa13%5cOrder

NUMBER 13-15-00431-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ____________________________________________________________ THUNDER ROSE ENTERPRISES, INC. AND MICHAEL J. PALMER, Appellants, v. BILLY R. KIRK AND KIRK OILFIELD EQUIPMENT SALES, INC., Appellees. ____________________________________________________________ On Appeal from the 24th District Court of Goliad County, Texas. ____________________________________________________________ ORDER Before Justices Garza, Perkes, and Longoria Order Per Curiam On December 8, 2015, appellants, Thunder Rose Enterprises, Inc. and Michael J. Palmer, filed a notice of bankruptcy in this appeal. According to the notice, appellant Michael J. Palmer filed a bankruptcy petition on December 7, 2015, in the United States Bankruptcy Court for the Eastern District of Texas.  Upon the filing of a bankruptcy petition, an automatic stay becomes effective which prohibits the commencement or continuation of any judicial action or proceeding against the debtor and any property within the debtor's bankruptcy estate. See 11 U.S.C.A. ' 362(a). Pursuant to Rule 8.2 of the Texas Rules of Appellate Procedure, the appeal is suspended. See TEX. R. APP. P. 8.2. Accordingly, this appeal is ABATED until further order of this Court. Any documents filed subsequent to the bankruptcy petition will remain pending until the appeal is reinstated. The parties are directed to take such action as is appropriate to advise the Court of any change in the status of the bankruptcy proceeding which would affect the status of this appeal, including but not limited to, the filing of a motion to reinstate pursuant to Texas Rule of Appellate Procedure 8.3. See id. 8.3. PER CURIAM Delivered and filed the 11th day of December, 2015. 2

2016-07-06 06:41:57.095652+00

Carpenter

In 1946, Fred C. Schudel, who resides outside the city of Toledo, was employed in the United States post office in that city and received wages that year for his services. He did not file a return *Page 56 and pay the tax on that income as required by city ordinance No. 18-46 (the pay-roll income tax ordinance), under which it was provided that that return should be made and the tax paid on or before March 15, 1947. On April 20, 1950, an affidavit was filed in the Municipal Court of Toledo, charging the defendant, under the penalty provision of that ordinance, with a violation of it in the respect above stated. On trial he was found guilty and sentenced to pay the costs. On appeal to the Court of Common Pleas, that sentence was affirmed and from that judgment of affirmance this appeal on questions of law was taken. In the trial court, the Common Pleas Court, and now in this court, the defendant has contended that prosecution of him was barred by the statute of limitations as expressed in Sections 4562 and 12381, General Code, which are as follows: "Section 4562. Suits or prosecutions for the recovery of fines, penalties, or forfeitures, or for the commission of any offense made punishable by any bylaw or ordinance of any municipal corporation, shall be commenced within one year after the violation of the ordinance, or commission of the offense, and not afterward." "Section 12381. A person shall not be indicted or criminally prosecuted for a misdemeanor, the prosecution of which is not specially limited by law, unless such indictment is found, or prosecution commenced, within three years from the time such misdemeanor was committed." The city contends that there is no limitation fixed as to such prosecution. It cites section 16 of the ordinance, which dealt with the obligation of taxpayers to pay after the expiration of the ordinance, December 31, 1950. The material part thereof was as follows: *Page 57 "For purposes of collection of delinquent or unpaid taxes, actions or proceedings for such collection and/or the collection of interest and penalties thereon, or enforcing any provisions of the ordinance (including prosecutions under the criminal sections of the ordinance and including appeals before the board of review), the ordinance remains in force and effect until such time as all taxes accruing during the life of the tax, ending December 31st, 1950, shall have been fully paid and all actions, suits and prosecutions, appeals and other judicial or administrative proceedings relative to the collection of payment of any such tax, have been finally terminated." That section did not deal with the beginning phase of a prosecution. In no sense was it a statute of limitation. Its purpose was to keep alive proceedings or prosecutions lawfully commenced, even if the ordinance expired December 31, 1950, as it did by its terms. The city contends also that the failure to make return and pay the tax is a continuing misdemeanor until the tax is paid. That is true, but March 16, 1947, marked the time when the right of the city to begin a prosecution accrued, and if there is a time limitation to that right, it is to be reckoned from that date. No provision of this ordinance or any other ordinance of the city of Toledo which provides a limitation of such a criminal action as this has been cited by counsel, and the court has found none. Looking to the city charter, there is found in section 10 of its omnibus, an enumeration of the powers of the municipality under the charter, as follows: "Section 10. Enumeration not exclusive. The enumeration of particular powers by this charter shall not be held or deemed to be exclusive; but in addition to the powers enumerated or implied therein or appropriate *Page 58 to the exercise thereof, the city of Toledo shall have and may exercise all other powers which under the Constitution and laws of Ohio now are, or hereafter may be, granted to cities. Powers proper to be exercised, and not specially enumerated herein, shall be exercised and enforced in the manner prescribed by this charter, or, when not prescribed herein, in such manner as shall be provided by ordinance or resolution of the council, or bystatute." (Emphasis added.) There is no question here as to the validity of the tax ordinance. That was settled in Angell v. City of Toledo,153 Ohio St. 179, 91 N.E.2d 250. Nor is there any question about the general constitutional powers of the city to provide for its government. However, in the absence of exercise of any power by the city, either by charter or ordinance, under section 10, the statute controls. The charter itself so declares. There being no limitation by ordinance of the time for prosecuting this action, the statute controls, and, under the statute, whether it be one year under Section 4562, General Code, or three years under Section 12381, General Code, is immaterial because the action against this defendant was barred March 15, 1950, and this prosecution was not commenced until April 20, 1950. The judgments of the Common Pleas and Municipal Courts are reversed and the defendant discharged. Judgment reversed. FESS and CONN, JJ., concur. *Page 59

2016-07-06 06:41:57.516981+00

OPINION {¶ 1} Defendant-appellant, Northern Heath Facilities, Inc., d.b.a. Maple Wood Care Centre, et al., appeals the judgment entry of the Portage County Court of Common Pleas, in which the trial court granted a Motion to Compel filed by plaintiff-appellee, *Page 2 Darlene May, as the personal representative of the Estate of Twila Scott. For the following reasons, we affirm the decision of the trial court. {¶ 2} This case arises out of a suit filed by May against Maple Wood alleging that Maple Wood, by and through its employees, provided substandard care to Scott while she was a resident of their nursing home facility resulting in the serious injury and death of Scott. May requested the names and last known address of Scott's roommates from when she was a resident of Maple Wood Care Centre. Maple Wood refused to provide the information, whereupon May filed a Motion to Compel. After a hearing before a magistrate, the court ordered that Maple Wood "provide the Plaintiff, within 30 days, the name and current or last known address of all Twila Scott's roommates for November of 2004. If an individual is still in nursing care or is deceased that fact should be noted by the Defendants." {¶ 3} Maple Wood motioned to set aside the magistrate's order. The motion was denied by the court and the magistrate's order was adopted. Maple Wood subsequently filed this interlocutory appeal pursuant to R.C. 2505.02(B)(4). {¶ 4} Maple Wood timely appeals and raises the following assignments of error: {¶ 5} "[1.] Did the trial court err by ordering the discovery of protected health information of non-party nursing home residents in a nursing home negligence/wrongful death action? {¶ 6} "[2.] Did the trial court err when it failed to order plaintiff to take specific measures to safeguard the protected health information of non-party nursing home residents?" {¶ 7} The trial court has broad discretion in regulating the discovery process and, therefore, the trial court's decisions on discovery matters will not be reversed *Page 3 absent an abuse of discretion. Mauzy v. Kelly Servs, Inc.,75 Ohio St.3d 578, 592, 1996-Ohio-265. Such a standard of review mandates affirming a trial court's decision absent a showing that the court acted unreasonably, unconscionably or arbitrarily. Berk v. Matthews (1990),53 Ohio St.3d 161, 169 (citations omitted). An appellate court may not substitute its judgment for that of the trial court. In re Jane Doe1 (1990), 57 Ohio St.3d 135, 137-138; Wescott v. Associated EstatesRealty Corp., 11th Dist. Nos. 2003-L-059 and 2003-L-060, 2004-Ohio-6183, at ¶ 17 (citations omitted). However, an appellate court's review of the interpretation and application of a statute is a question of law subject to de novo review. Akron v. Frazier, 142 Ohio App.3d 718, 721 (citation omitted). Since the trial court's decision involves a specific construction of law, we will review the decision de novo. {¶ 8} Maple Wood argues that the names and addresses of Scott's roommates do not fall within any of the statutory categories of permissible disclosure. Maple Wood further asserts that Scott's roommates have a statutory right to their privacy and the confidentiality of this information under R.C. 2317.02, the statute regarding privileged communications, and R.C. 3721.13, the statute pertaining to the rights of a nursing home resident. {¶ 9} Maple Wood claims that the issue should be analyzed under state law as opposed to federal law. Maple Wood maintains that federal law, specifically the Health Insurance Portability and Accountable Act of 1996 (HIPPA), does not preempt the state privacy laws because the state law is more stringent. We agree. {¶ 10} HIPPA contains a preemption provision found in45 C.F.R. 160.203 that states in pertinent part: "A standard, requirement, or implementation specification adopted under this subchapter that is contrary to a provision of State law preempts the *Page 4 provision of State law. This general rule applies, except if one or more of the following conditions is met: * * * (b) The provision of state law relates to the privacy of individually identifiable health information and is more stringent than a standard, requirement, or implementation specification adopted under subpart E of part 164 of this subchapter."45 C.F.R. 160.203(b). {¶ 11} A State law is "more stringent" under the exception of 160.203(b) when "with respect to use or disclosure" of individually identifiable health information, "the law prohibits or restricts a use or disclosure * * * under which such use or disclosure otherwise would be permitted under this subchapter". 45 C.F.R. 160.202. {¶ 12} "R.C. 2317.02(B)(1) is more stringent because it prohibits use or disclosure of health information when such use or disclosure would be allowed under HIPPA. The HIPPA privacy regulation, found in45 C.F.R. 164.512, allows disclosure of protected health information in the course of any judicial or administrative proceeding in response to a court order * * * by subpoena, discovery request or by other lawful processes * * *." Grove v. Northeast Ohio Nephrology Assocs. Inc.,164 Ohio App.3d 829, 2005-Ohio-6914, at ¶ 22. Whereas R.C. 2317.02(B)(1) allows disclosure in a civil case only under very specific circumstances: patient waiver, consent by spouse or executor if patient is deceased, civil actions filed by the patient, or civil actions concerning court-ordered treatments. R.C. 2317.02(B)(1)(a)(i)-(iii); R.C. 2317.02(B)(1)(b). Therefore, since the state statute is more stringent than 45 C.F.R. 164.512, HIPPA does not preempt R.C. 2317.02(B)(1).Progressive Preferred Ins. Co. v. Certain Underwriters at Lloyd'sLondon, 11th Dist. No 2006-L-242, 2008-Ohio-2508, at ¶ 14. *Page 5 {¶ 13} The communication protected by privilege is broadly defined by R.C. 2317.02. Section (B)(1) mandates that a physician cannot testify "concerning a communication made to the physician * * * by a patient in that relation or the physician's * * * advice to a patient". The statute defines "communication" as "acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician or dentist to diagnose, treat, prescribe, or act for a patient." R.C. 2317.02(B)(5)(a). Further, a communication "may include, but is not limited to, any medical or dental, office, or hospital communication such as a record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis." Id. The Ohio Supreme Court has held that R.C. 2317.02 must be strictly construed. Weis v.Weis (1947), 147 Ohio St. 416, at paragraph four of the syllabus. {¶ 14} Maple Wood maintains that the names of Scott's roommates are protected communication and do not fall within any of the categories of permissible disclosure under the statute. Conversely, May asserts that the names of Scott's roommates are neither confidential nor heath information. {¶ 15} Jurisdictions presented with this question have held that the name and address alone are not confidential information protected by the statutory provision of privilege. A California Appellate Court held the identity of the patient "has no relation to treatment by the physician or, indeed, to the ailment of the patient. A physician need not know the name of the patient in order to treat him, and any unethical solicitation by an interloper is quite unrelated to information communicated to enable the physician to `prescribe or act for the patient.' Thus, the communication here presented is not *Page 6 privileged." Ascherman v. Superior Court of San Francisco 1967, 254 Cal.App.2d 506, 516. {¶ 16} In the United States Court of Appeals for the District of Columbia, the court held that "[h]ospital records of diagnosis and treatment are usually held to be covered by statutes which * * * forbid physicians to disclose confidential information acquired while attending a patient in a professional capacity. But a properly authenticated record of the patient's name, address, age, etc., is admissible, provided there is no disclosure of diagnosis or treatment." Kaplan v.Manhattan Life Ins. Co., (C.A.D.C. 1939), 109 F.2d 463, 465 (footnote omitted). Furthermore, the Second District Illinois Court of Appeals has held that the name of a patient generally has no relation to the ailment or treatment and therefore is not privileged information. Geisberger v.Willuhn, (Ill.App. 1979), 390 N.E.2d 945, 437, and the cases cited therein. {¶ 17} In the Fourth Appellate District of Ohio, the court held that the plaintiff was not asking the defendant to "disclose something (1) he communicated to a physician or (2) a physician communicated to him. * * * Instead, [he] is asking for the disclosure of the names of [the defendant's] health care providers * * *. Hence, [his] request does not seek `communications' as that word is defined in R.C. 2317.02(B)(5)(a)."Ingram v. Adena Health Sys., 149 Ohio App. 3d 447, 2002-Ohio-4878, at ¶ 15. Consequently, the court found that the information requested was not privileged. {¶ 18} The names of Scott's roommates were not confidential medical information under statute insomuch as the names and addresses did not concern any facts, opinions, or statements necessary to enable a physician to diagnose, treat, prescribe, or act for a patient. Therefore, the names and addresses of Scott's roommates were not privileged information under R.C. 2317.02. *Page 7 {¶ 19} Additionally, Maple Wood claims that the information sought is protected under the Resident's Rights statute, R.C. 3721.13 which includes "[t]he right to confidential treatment of personal and medical records [and] the right to approve or refuse the release of these records to any individual outside the home". R.C. 3721.13(A)(10). We do not construe this right to include the denial of access to the names and addresses of potential material witnesses in a lawsuit. If Maple Wood provides the names and addresses of residents after receipt of a valid subpoena or court order, Maple Wood would not be guilty of violating the Resident's Rights statute. {¶ 20} Maple Wood's first assignment of error is without merit. {¶ 21} Maple Wood contends that the trial court erred by failing to adequately protect the use and subsequent distribution of protected health information. For the reasons stated above, the information disclosed was not protected health information under statute. Therefore, the trial court was under no obligation to protect the use or distribution of the information Maple Wood was ordered to provide. {¶ 22} Maple Wood's second assignment of error is without merit. {¶ 23} For the foregoing reasons, the Judgment Entry of the Portage County Court of Common Pleas, granting the Motion to Compel, is affirmed. Costs to be taxed against appellant. COLLEEN MARY OTOOLE, J., concurs, TIMOTHY P. CANNON, J., concurs with Concurring Opinion. *Page 8

2016-07-06 06:42:01.622887+00

OPINION {¶ 1} Plaintiff-appellant, Robert W. Dray ("Dray"), appeals the April 27, 2005 judgment of the Court of Common Pleas of Allen County, Ohio granting the mistrial and dismissal of this case with prejudice. {¶ 2} On April 26, 2002, Dray purchased a used Oldsmobile Aurora from defendant-appellee, Lee Kinstle Chevrolet Olds ("Kinstle"). The cash price of the Aurora was $21,950.00. The used Aurora had been previously owned by Madge Brickner of the Brickner Funeral Homes. When she owned the car, she had a 1967 General Electric business radio installed. The Brickner family never had any problems with the vehicle, including electrical concerns due to the radio being installed. {¶ 3} Prior to purchasing the Aurora, Dray did not take the opportunity to test drive the vehicle even though he was provided with such an opportunity. However, after purchasing the Aurora but before taking delivery of the vehicle at Kinstle's, Dray noticed a few things that he believed Kinstle to have misrepresented. First, he noticed that the vehicle was not equipped with OnStar which was supposed to be standard equipment in the vehicle. Next, he noticed that the car had almost 18,000 miles on it and he had been told that it had under 10,000 miles on it. Upon leaving Kinstle on April 26, Dray discovered other things that he believed did not conform to the contract of sale because of defects that occurred due to extensive electrical alterations. These defects included brackets left in the trunk, standing water in running lights and license plate light, running lights and license plate light working intermittently, defective wiring, factory brackets hanging loose and sagging in the trunk, hood not shutting, drivers side heat switch malfunctioning, and heating and air conditioning fan not working. {¶ 4} On April 29, 2002, Dray returned the Aurora to Kinstle with a long list of problems that he had found after a full inspection of the vehicle. Kinstle stated that it would not accept the Aurora back at that time but was willing to fix it and issue a letter stating that it would stand behind any factory warranty refusal due to the installation and removal of the business radio. On May 3, 2002, Kinstle returned the Aurora to Dray. However, Dray was not pleased with the work that had been done because everything on the list of problems had not been fixed. Dray made a call to Kinstle informing them of his dissatisfaction. {¶ 5} On August 2, 2002, Dray initially filed a suit complaining of the problems with the Aurora that had not been fixed by Kinstle. Dray sought damages pursuant to R.C. 1345.73,1345.75 and U.C.C. 2-608. On July 17, 2003, Dray filed a Notice of Voluntary Dismissal. {¶ 6} On August 14, 2003, Dray filed this case against Kinstle and General Motors setting forth numerous causes of action. Dray asserted that he was entitled to cancellation of the contract pursuant to U.C.C. 2-601 or 2-608 due to breach of express warranty, breach of implied warranty, breach of implied warranty of fitness, rejection and revocation of acceptance. In addition, he asserted fraud, violation of the Consumers Sales Practices Act and cancellation under the Magnuson-Moss Act. {¶ 7} On October 24, 2003, Kinstle filed a Motion for Summary Judgment. On February 23, 2004, the trial court granted partial summary judgment on all of Dray's claims against Kinstle except the revocation of acceptance claim. On March 24, 2004, Dray filed a Notice of Appeal appealing the February 23, 2004, partial summary judgment. However, this appeal was dismissed on April 7, 2004 as being prematurely filed. Therefore, the trial date was set for April 19, 2004 but was vacated and rescheduled for September 13, 2004. {¶ 8} On August 25, 2004, Dray filed a Motion for Partial Reconsideration of the Order Granting Partial Summary Judgment on the Motion of Lee Kinstle Chevrolet Olds, Inc. which was denied. The trial court then vacated the September jury trial and rescheduled the trial for April 25, 2005. On September 7, 2004, Dray filed a Motion of Plaintiff for Leave to File an Amended Complaint. On September 8, 2004, a Judgment Entry was filed granting plaintiff leave to file an amended complaint. On September 13, 2004, Dray filed an Amended Complaint. In the Amended Complaint, Dray added an additional defendant, Community First Bank and Trust, and alleged cancellation of the contract; damages for breach of warranty; fraud; cancellation under Magnuson-Moss Act; unfair, deceptive acts and practices; consumer notice; civil conspiracy; aiding and abetting; other wrongs pursuant to R.C. 2307.60; and breach of contract. On September 20, 2004, Dray filed a second Amended Complaint. {¶ 9} On November 5, 2005, General Motors filed a Motion for Summary Judgment. On January 14, 2005, the trial court granted General Motor's Motion for Summary Judgment. On February 9, 2005, Community First Bank and Trust filed a Motion for Summary Judgment. On March, 16, 2005, the trial court granted Community First Bank and Trust's Motion for Summary Judgment. Also, on March 16, 2005, the trial court issued a final order reiterating that: (1) partial summary judgment in favor of Kinstle pursuant to its February 23, 2004 Motion for Summary Judgment; (2) summary judgment in favor of General Motors; and (3) summary judgment in favor of Community First Bank and Trust, and provided certification of "no just reason for delay" pursuant to Civ.R. 54(B). However, Dray did not attempt to appeal this order until May 25, 2005. {¶ 10} On April 25, 2005, the case went to a jury trial. However, after the trial court issued several instructions and warnings to Dray, the trial court declared a mistrial and dismissed the case with prejudice due to Dray's conduct. On April 27, 2005, the trial court issued its Judgment Entry granting the mistrial and dismissal with prejudice. {¶ 11} On May 25, 2005, the plaintiff-appellant filed his notice of appeal and now raises the following assignments of error: Assignment of Error 1 AS STATED TO THE COURT MULTIPLE TIMES, ON PAGE 2. THIS WAS NOTA "BUSINESS RADIO RATHER THAN A FACTORY RADIO, THIS WAS A "HIGHPOWERED" "AMBULANCE RADIO," BOLTED TO THE FLOOR IN THE TRUNK OFTHE OLDS. Assignment of Error 2 KINSTLE MADE NO WARRANTIES TO PLAINTIFF. THERE IS MULTIPLEAFFIDAVIT DOCUMENTATION ABOUT "6 WEEKS" OF PHONE CALLS TOPLAINTIFF DRAY'S HOME BY CHRIS MARTINEZ THE KINSTLE SALESMANTELLING DRAY "HOW PERFECT" THIS CAR WAS. Assignment of Error 3 PLAINTIFF DID NOT HAVE THE VEHICLE "INSPECTED" AND TOOK IT IN"AS IS" CONDITION. THIS IS UNTRUE. THIS CAR INSPECTED BY GM4-26-02 BY RICHARD GERMAN, FOR GM DETROIT FACTORY WARRANTY,TRANSFER. * * * Assignment of Error 4 I AT NO TIME IN MY DEPOSITION STATED THE "SPECIFICATIONS ANDEQUIPMENT" WERE ACCURATE. * * * Assignment of Error 5 JUDGE WARREN ALSO SAID, I ONLY TOOK THE CAR IN FOR REPAIR"ONCE," THAT IS BY MULTIPLE DOCUMENTATION UNTRUE. * * * Assignment of Error 6 SEE JUDGMENT ENTRY DATED APRIL 18, 2003 AS TO THE APRIL 23,2003 DEPOSITION, (SEE SUPREME COURT AFFIDAVIT DATED APRIL 5, 2005ATTACHED) AFTER TELEPHONE DEPOSITION WAS "OVERRULED" BY JUDGEWARREN, EVEN WITH ME SENDING HIM, "51 PAGES OF SURGICAL REPORTSAND MEDICAL REPORTS ABOUT MY SPINAL CORD DAMAGE, I WENT TOFITZGERALD OFFICE IN A WALKER FOR DEPOSITION, THE PAIN WAS SOBAD, I FELL FROM MY WALKER TO THE FLOOR, IN FITZGERALD'S OFFICE.HE CALLED A "FAKE" AND WOULD NOT EVEN CALL 911 AMBULANCE. * * * Assignment of Error 7 ALL THE MOTIONS I FILED TO JUDGE WARREN NOV. 18, 2004 AND DEC.22, 2004, JAN. 14, 2005 AND MAR. 8, 2005, JUDGE WARREN DID NOTANSWER MY MOTIONS NEEDED GREATLY TO PLEAD THE CASE. {¶ 12} Dray's assignments of error one, two, three, four and five allege factual disputes. In the first assignment of error, Dray claims that the radio that had been bolted to the trunk floor in the Aurora was an ambulance radio rather than a business radio. In the second assignment of error, Dray asserts that Martinez, a Kinstle salesman, called him for six weeks telling him how perfect the Aurora was. In the third assignment of error, Dray argues that he did have the Aurora inspected by General Motors for the factory warranty to transfer to him. In the fourth assignment of error, Dray claims that he did not state that the "specifications and equipment" were accurate. In the fifth assignment of error, Dray asserts that he took the Aurora in for repair more than once. {¶ 13} It is axiomatic that allegations and issues of fact are to be determined by the trier of fact. An appellate court will not make such a determination on appeal. Specifically, the factual disputes and allegations asserted by Dray would have been presented and decided by the trial court had the case been tried. However, these issues of fact were never presented in evidence at trial due to the trial court declaring a mistrial early in the proceedings. Accordingly, these allegations are not properly before this Court. Therefore, assignments of error one, two, three, four, and five are overruled. {¶ 14} In the sixth assignment of error, Dray essentially asserts that Judge Warren abused his discretion in overruling Dray's request for a telephone deposition in the April 18, 2003 Judgment Entry. {¶ 15} An appellate court will not reverse a trial court's decision regarding disposition of discovery issues absent an abuse of discretion. State ex rel. The V. Companies, et al. v.Marshall (1998), 81 Ohio St.3d 467, 469, 692 N.E.2d 198. An abuse of discretion constitutes more than an error of law or judgment and implies that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When applying the abuse of discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court. Id. {¶ 16} Upon review of the record in this case, we find that the trial court did not abuse its discretion in determining that Dray's request for a telephone deposition be overruled. Moreover, the issue of whether the deposition should have been held telephonically is moot because the deposition of Dray was taken on May 21, 2003. Accordingly, the sixth assignment of error is overruled. {¶ 17} In the seventh assignment of error, Dray asserts that Judge Warren did not answer numerous motions he filed throughout the proceeding of the case. Three of these motions relate to General Motors and/or Community Bank and Trust. However, both of these defendants were granted Summary Judgment and both judgments were certified as final pursuant to Civ.R. 54(B). No timely notice of appeal was filed from the final judgment dismissing all claims against General Motors and Community Bank and Trust. App.R. 4 applies to an order made appealable under Civ.R. 54(B).Grabill v. Worthington Ind., Inc. (1993), 89 Ohio App.3d 485,488, 624 N.E.2d 1105. Specifically, App.R. 4(B)(5) requires that an appeal be filed within thirty days from a certified judgment entry or order appealed or the judgment or order that disposes of the remaining claims. No timely notice of appeal having been filed from those final orders, this Court is now without jurisdiction to address those issues and therefore, Dray's claims may not be raised against General Motors and/or Community Bank and Trust pursuant to the doctrine of res judicata. See In reAdoption of Greer (1994), 70 Ohio St.3d 293, 638 N.E.2d 999, fn. 1. {¶ 18} Thus, the only issue remaining is whether Judge Warren ruled on the December 22, 2004 motion as it relates to Kinstle. Specifically, Dray filed this motion as an Addendum to the motion that had previously been filed on November 18, 2004. Therefore, Judge Warren ruled upon the motions of both November 18, 2004 and the December 22, 2004 Addendum in his Judgment Entry granting General Motor's Motion for Summary Judgment on January 14, 2005. {¶ 19} Accordingly, we find that the motion that is properly before this Court was ruled upon by Judge Warren. Therefore, assignment of error seven is overruled. {¶ 20} Finally, despite the lack of a specific assignment of error on the issue, it is apparent that Dray disagrees with and essentially challenges the trial court's granting a mistrial and dismissing the case with prejudice. Accordingly, in the interest of justice and because it involves an important question going to the inherent authority of the trial court to conduct a trial, we will address this overall issue. {¶ 21} Civ. R. 41(B)(1) governs involuntary dismissals for failure to prosecute. Specifically, Civ.R. 41(B)(1) provides: Where the plaintiff fails to prosecute, or comply with theserules or any court order, the court upon motion of a defendant oron its own motion may, after notice to the plaintiff's counsel,dismiss an action or claim. A condition precedent to dismissal of an action for failure to prosecute is notice to the plaintiff or plaintiff's counsel of the court's intention to dismiss. Civ.R. 41(B)(1). Notice is an absolute prerequisite for dismissal for failure to prosecute.Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 2-3,454 N.E.2d 951, 952. {¶ 22} Generally, dismissal with prejudice is an extremely harsh sanction and contrary to the fundamental preference for deciding cases on their merits. Jones v. Hartranft (1997),78 Ohio St.3d 368, 371, 678 N.E.2d 530. Accordingly, a court should not order a dismissal with prejudice unless the plaintiff's conduct is so "negligent, irresponsible, contumacious, or dilatory as to provide substantial grounds" for such a dismissal.Tokles Son, Inc. v. Midwestern Indemn. Co. (1992),65 Ohio St.3d 621, 632, 605 N.E.2d 936; Willis v. RCA Corp. (1983),12 Ohio App.3d 1, 2, 465 N.E.2d 924, 926; Schreiner v. Karson (1977), 52 Ohio App.2d 219, 223, 369 N.E.2d 800, 803. Despite the heightened scrutiny to which dismissals with prejudice are subject, this Court will affirm the dismissal of an action when the conduct of the parties provides "substantial grounds for a dismissal with prejudice for a failure to prosecute or obey a court order." Tokles Son, Inc., 65 Ohio St.3d at 632, quoting Schreiner, 52 Ohio App.2d at 223. {¶ 23} It is within the sound discretion of the trial court to dismiss an action for lack of prosecution. Pembaur v. Leis (1982), 1 Ohio St.3d 89, 91, 437 N.E.2d 1199. The appellate court is confined solely to whether the trial court abused that discretion. Id. An abuse of discretion constitutes more than an error of law or judgment and implies that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore,5 Ohio St.3d at 219. {¶ 24} In this case, the April 27, 2005 Judgment Entry (Trial Proceedings, Mistrial Dismissal with Prejudice) provides the following chronology of events leading to the dismissal: Whereas, after many cautionary instructions and admonitions bythe Court, the defendant requested a mistrial and the Court forthe following reasons grants the same and dismisses the withinaction with prejudice. Whereas, prior to trial, defendant had requested certainOrders in limine which the Court granted. Review of the file anddocuments filed by the plaintiff necessitated the Court approvingand filing such Orders. Initially, the Court had granted partialsummary judgment to other defendants and many of the issues hadbeen resolved and were not issues to be decided in thisparticular case. The Court specifically set forth what the issueswere and plaintiff was well aware of same. Further the Court hadinstructed the plaintiff about irrelevant matters that would notbe presented to the jury. In addition, the Court in itsdiscretion conducted voir dire examination but allowed theparties to supplement and ask questions as indicated by therecord. In addition, the Court, prior to trial commencing on thisdate, instructed plaintiff about matters that would beprohibited. Whereas, plaintiff during opening statement had to becautioned and instructed numerous times about matters that wereevidentiary in nature and not relevant to the within case. Infact, during a recess the Court specifically admonished theplaintiff concerning matters that were not to be presented sincethey were irrelevant and prejudicial. Whereas, even after plaintiff's opening statement, defendantrequested a directed verdict because of the plaintiff'sstatements and actions, and the Court, in its attempt to conducta trial to conclusion, overruled the same. Plaintiff then called his first witness. Numerous times duringthe attempted examination of said witness, the Court had toadmonish the plaintiff in regards to matters that he had beenpreviously instructed to not bring up and mention, but plaintiffignored the instructions and persisted in asking questions andmaking testimonial statements which the Court was required tostrike and instruct the jury of same. The Court then for the third and fourth time had to admonishthe plaintiff again outside the presence of the jury in regardsto irrelevant and prejudicial matters in which plaintiff wasattempting to testify and not allow the witness [to] complete hisanswer if it was not to his liking and then calling the witnessand defendant's employees "liars". Plaintiff was also warnedabout a mistrial. In addition, the record would show herein that the Courtadmonished the plaintiff at least ten (10) times during thepresentation of evidence about his method of presenting evidenceand matters that were irrelevant and prejudicial statements andtestimonial matters that were not proper. {¶ 25} Upon careful review, we find that the record is consistent with and supports the findings and conclusions of the April 27, 2005 Judgment Entry. Based on Dray's continued pattern of conduct in persistently refusing to follow instructions and admonitions of the court, we can not say that the trial court erred in granting a mistrial and dismissing the case with prejudice. {¶ 26} Therefore, Dray's seven assignments of error are overruled and the April 27, 2005 judgment of the Court of Common Pleas of Allen County, Ohio granting the mistrial and dismissal of this case with prejudice is affirmed. Judgment affirmed. Bryant, P.J. and Cupp, J., concur.

2016-07-06 06:41:57.164986+00

Boggins

OPINION {¶ 1} This is an appeal from a ruling by the Common Pleas Court of Muskingum County which sustained Appellees' Motion for Summary Judgment: {¶ 2} Appellant's raise two Assignments of Error: ASSIGNMENTS OF ERROR {¶ 3} "I. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS-APPELLEES' [SIC] SELLERS SUMMARY JUDGMENT BECAUSE THE DISCLOSURES DEFENDANTS-APPELLEES-SELLERS MADE TO PLAINTIFFS-APPELLANTS-BUYERS WERE KNOWN BY DEFENDANTS-APPELLEES-SELLERS NOT TO BE TRUE. *Page 101 {¶ 4} "II. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS-APPELLEES-SELLERS SUMMARY JUDGMENT BECAUSE DEFENDANTS-APPELLEES-SELLERS HAD A DUTY TO DISCLOSE THE WATER PROBLEMS WITH THE HOME AND THEY DID NOT DO SO. STATEMENT OF THE FACTS AND CASE {¶ 5} Appellees had a new home constructed by Third Party Defendant, Terrence Grywalski dba Terrence Homes which they occupied in November, 1997. {¶ 6} Some basement water problems occurred prior to such property being listed for sale in early 1999. {¶ 7} Appellants examined the property on three separate occasions prior to purchasing such home. They were not limited in such examination. While they chose not to have the home professionally inspected as such, they were accompanied on one inspection by a family friend who had begun a home inspection business. {¶ 8} Appellants observed indication of prior basement water problems on walls, carpet and sill. {¶ 9} Appellees and Appellees met only on the third inspection. On inquiry, Appellants stated that on one occasion, water entered the home due to an ice storm and on another occasion because of a blocked drain. The facts presented by Appellants and accepted as accurate by Appellees are that water problems occurred seven times during Appellees ownership. The real estate disclosure form did not accurately list all occasions of water leakage. Appellants were aware, however, of the inaccuracy of such disclosure. (Stacy Funk, Deposition, Page 40, Lines 13-18). Appellees offered no additional information as to water problems. {¶ 10} The contract of sale, which contained an "as is" clause, provided for a $330,000.00 purchase price. As the bank appraisal did not meet such sale price, it was re-negotiated to $320,000.00 and an extension was granted to coincide with the sale of Appellant's prior home. {¶ 11} On the third day after moving into the home, a thunderstorm of several hours duration occurred. The patio drain could not handle the excessive water and a backup occurred. Appellants have experienced dampness on the basement walls on several occasions since that episode, although it has not reached the basement floor. {¶ 12} After unsuccessful attempts to resolve the problem with Appellees, Appellants filed suit asserting several causes of action, to-wit: Verbal and written representations which were false and misleading, fraud, misrepresentation, non-disclosure, breach of express warranty and of habitability and of good faith and fair dealing. Appellees responded and brought their builder into the action. *Page 102 {¶ 13} Appellees filed a motion for summary judgment which the court sustained. As a result of this action, the court also dismissed the third party action involving the builder. {¶ 14} We shall review each Assignment of Error simultaneously as each deals with the applicability of the Civil Rule 56 decision. SUMMARY JUDGMENT STANDARD {¶ 15} 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. Civ.R. 56(C) states, in pertinent part: {¶ 16} "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. . . . 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." {¶ 17} Pursuant to the above rule, a trial court may not enter a 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. {¶ 18} It is based upon this standard we review each of Appellant=s Assignments of Error. {¶ 19} Each Assignment is essentially predicated upon fraudulent misrepresentations or conduct asserted as to Appellees, either by false disclosures or failure to disclose. *Page 103 {¶ 20} The elements of fraud or fraudulent misrepresentation 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) followed by justifiable reliance upon the representation or concealment by the other party and (6) a resulting injury proximately caused by the reliance. See Friedland v. Lipman (1980), 68 Ohio App.2d 255. {¶ 21} On the other hand, the doctrine of caveat emptor must be considered relative to the data before the court in making its ruling on the Appellee's Summary Judgment Motion. {¶ 22} The Ohio Supreme Court in Layman v. Binns (1988),35 Ohio St.3d 176, 519 N.E.2d 642, set forth the doctrine of caveat emptor in the syllabus wherein it stated: {¶ 23} The doctrine of caveat emptor precludes recovery in an action by the purchaser where: (1) the condition complained of is open to observation or discernable upon reasonable inspection; (2) the purchaser had the unimpeded opportunity to examine the premises; and (3) there is no fraud on the part of the vendor. {¶ 24} Under the rule of caveat emptor, buyers are responsible for discerning patent defects. Layman, supra. If a purchase agreement states that the buyer purchases real property in its "as is" physical condition, the vendor has no duty to disclose latent defects. Kossutichv. Krann (Aug. 19, 1990), Cuyahoga App. No. 57255, unreported, citingKlott v. Associates Real Estates (1974), 41 Ohio App.2d 118,322 N.E.2d 690. A seller may be liable for non-disclosure of a latent defect when he is under a duty to disclose facts and fails to do so. Layman, supra. {¶ 25} The Court in Kaye v. Buehrle (1983), 8 Ohio App.3d 381, addressed the "as is" clause in the home sale contract before it and stated: {¶ 26} "The `as is' contract provision cannot be relied upon, however, to relieve the defendants of liability on a claim for fraudulent misrepresentation. See, also, Mancini v. Gorick (1987), 41 Ohio App.3d 373. The basic elements of a cause of action for fraudulent misrepresentation include an actual or implied misrepresentation which is material to the transaction, made with knowledge that the statement is false, with the intent to mislead another who relies on the misrepresentation with resulting injury." Klott, supra. See also: Sanfillipo v. Rarden (1985),24 Ohio App.3d 164. *Page 104 {¶ 27} Even though such clause does not provide a defense to fraudulent misrepresentations, it does relieve a seller from any duty to disclose. Yuricek. v. Dye, (Dec. 15, 2000), Trumbull App. No. 99-T-0093. {¶ 28} The materials before the court in considering the Motion were the pleadings, depositions of Appellants, affidavits of William Scott Funk and the realtor, Jan Tanner Thompson and the matters contained within the briefs in support of and in response to Appellees' Motion. The affidavit of Mr. Funk and the deposition of Mrs. Funk differ, and the realtor's affidavit is inconsistent in that she asserts Appellee stated "no basement water problems" and later called stating the problem was fixed by the contractor. {¶ 29} While the response and this appeal include copies of purported excerpts from Appellees' deposition, such deposition has not been filed of record and the excerpts provided were not in affidavit form, and therefore, as required by Civil Rule 56, such transcripts are not of record to have been considered by the trial judge or this Court. {¶ 30} The portions of the Complaint which assert written representations which were false or misleading and express warranty essentially rely on the inaccurate, or at least incomplete, statements in the disclosure form. {¶ 31} R.C. 5302.30 provides with respect to such required disclosure: "that the statement is not a warranty of any kind by the transferor or by any agent or subagent representing the transferor in this transaction; that the statement is not a substitute for any inspections; that the transferee is encouraged to obtain his/her own professional inspection;". {¶ 32} R.C. 5302.30(J) states: {¶ 33} "The specification of items of information that must be disclosed in the property disclosure form as prescribed under division (D) of this section does not limit or abridge, and shall not be construed as limiting or abridging, any obligation to disclose any items of information that is created by any other provision of the Revised Code or the common law of this state or that may exist in order to preclude fraud, either by misrepresentation, concealment, or nondisclosure in a transaction involving the transfer of residential real property. The disclosure requirements of this section do not bar, and shall not be construed as barring, the application of any legal or equitable defense that a transferor of residential real property may assert in a civil action commenced against the transferor by a prospective or actual transferee of that property." {¶ 34} Essentially, such Code provision as stated in Belluardov. Blankenship, June 4, 1998, Eighth App. District, #72601. "does not effectively negate prior law relating to "as is" residential home purchase agreements." Rather it *Page 105 "codifies the common law doctrine of caveat emptor by requiring homeowners to disclose all known latent defects." Thus, where plaintiff conducted an inspection of the property and learned that problems existed in the past but chose not to undertake further investigation, the "as is" disclaimer removed the agent's duty to disclose information relating to the basement: " {¶ 35} While R.C. 5302.30 specifically states that the disclosure form it requires is not a warranty, it can form the basis for false representations contained therein if such form a basis for reliance,Teter v. Rossi, (Sept. 13, 2002), Trumbull App. No. 2001-T-0103, 2002 Ohio 4818. {¶ 36} Essentially, a seller entering into a contract of sale with an "as is" clause, even though relieved from a duty to disclose, cannot make affirmative false statements to a buyer, a realtor or in a disclosure form if such is relied upon by a buyer. {¶ 37} This Court considered such in Ataya v. Beckerl, (January 28, 1998) Stark App. No. 1997 CA 00191, in which a summary judgment decision was reversed premised upon the conclusion that an affirmative statement as to the complete waterproofing of a basement when only 15% had been waterproofed presented a material fact requiring determination of reliance by the trier of fact: Affirmative, contrary to fact statements have also been considered in Schlecht v. Helton, (January 16, 1997) Cuyahoga App. No. 70582, and Kossutich v. Krann (August 19, 1990), Cuyahoga App. No. 57255. {¶ 38} Applying these standards to the case sub judice, we have open and obvious evidence of basement water problems putting the Appellants upon notice. They had the opportunity to have an inspection made, which is encouraged by R.C. 5302.30 and to an extent they did this by utilization of their home inspector friend who also observed such evidence. {¶ 39} Appellants were clearly aware, therefore, of prior problems. Their respective depositions indicate this. (See Stacy Funk Deposition, Pages 34, 35, 50, 63, 64, 65 and 81. Also, W.S. Funk Deposition, Pages 43, 52, 54, 58 and 62.) {¶ 40} No false, affirmative statements were made by Appellants, although additional events were not disclosed. As the realtor's affidavit is inconsistent and Mr. Funk's differs from that of his wife's deposition, the Court could reasonably place more reliance on the latter's deposition as to observations, lack of statements and non-reliance on the disclosure form. {¶ 41} Appellants knew the non-disclosure statements were inaccurate, (Stacy Funk Deposition, Page 40, Lines 13-18), and therefore, cannot meet the requirements of affirmative false statements in a contract containing an "as is" clause, nor the burden of reliance. *Page 106 {¶ 42} We, therefore, disagree with each of the two Assignments of Error and affirm the decision of trial court.

2016-07-06 06:41:57.253134+00

Collier

The appellant, herein referred to as the plaintiff, instituted this action against the appellee, herein referred to as the defendant, in the Common Pleas Court of Hocking County. The petition sets forth three causes of action, the first two causes of action being for money only, amounts claimed by plaintiff to be due him from the defendant for labor and material furnished to the defendant in the completion of a contract between the defendant and the Director of Highways of the state of Ohio for widening and resurfacing a state highway in or near Logan, Hocking County, Ohio. Plaintiff's third cause of action is for foreclosure of an alleged mechanic's lien on an attested account under Section 1311.30 et seq., of the Revised Code of Ohio, covering the items of the first two causes of action. Plaintiff avers the necessary steps to perfect such lien on the funds due the defendant on the contract and now held by the Auditor of State. *Page 308 Plaintiff is a resident of Fairfield County and defendant is a resident of Licking County. The defendant was served with summons in Licking County and moved to quash the attempted service of summons on him on the ground that the action was improperly brought in Hocking County. The motion was sustained and the action against the defendant was dismissed. Plaintiff has perfected an appeal on questions of law from the granting of said motion. Plaintiff contends that his action to foreclose the mechanic's lien on the fund due the defendant on the contract for the improvement of the highway in Hocking County is properly brought in that county. The defendant claims that the action was improperly brought in Hocking County for the reason that plaintiff was a resident of Fairfield County, the defendant was a resident of Licking County, and the funds or res upon which the lien is based were in the hands of the Auditor of State in Franklin County. Plaintiff is not attempting to impress a lien upon public property in Hocking County but claims a lien upon the fund due the defendant from the state of Ohio on the contract, which fund is now held by the Auditor of the State as stakeholder. The only question for determination in this appeal is whether Hocking County is the proper place to bring this action and try this cause. The matter of venue, the county wherein a cause is to be tried, is regulated by statute in Ohio. In Guy v.Pennsylvania Rd. Co., 54 Ohio Law Abs., 441, 87 N.E.2d 712, it is held: "The subject of venue in Ohio is entirely in the control of the General Assembly and the common law as expressed by the decisions of other jurisdictions is immaterial." The statutes which authorize the establishment of a mechanic's lien make no special provision concerning venue and, therefore, the general statutes fixing venue in civil actions apply in an action to foreclose such lien. An examination of these statutes, Sections 2307.32 to 2307.39, inclusive, Revised Code, discloses that, except in actions involving the subject of real property, specific performance of a contract, actions against a fiduciary and actions against a public officer or a corporation, all other actions must be brought in *Page 309 the county in which a defendant resides or may be summoned. The plaintiff claims no lien on any funds or any property in Hocking County; the funds upon which plaintiff is attempting to foreclose an alleged mechanic's lien are in the state treasury in Franklin County. It is elementary that the plaintiff may not maintain an action in personum against the defendant on his first two causes of action for money only, except in the county where the defendant resides and, since the fund upon which plaintiff bases the foreclosure of the lien is not in the geographic limits of Hocking County, our conclusion is that under the statutes fixing venue for civil actions the plaintiff has not established proper venue. Therefore, the Common Pleas Court was correct in granting the motion to quash the service of summons on the defendant. Furthermore, the lower court correctly dismissed the defendant from the action for the reason the Common Pleas Court of Hocking County did not and could not acquire jurisdiction over the person of the defendant. It follows that the judgment of the Common Pleas Court must be, and hereby is, affirmed. Judgment affirmed. GILLEN, J., concurs. McCURDY, J., not participating.

2016-07-06 06:41:57.330361+00

Cushing

The action in the court below was on a contract, evidenced by a policy of life *Page 309 insurance. The plaintiff beneficiary sued for $6,000, the face of the policy. The company, by answer, after admitting certain things, charged that the deceased and the beneficiary procured the policy to be issued by fraud. The specific charge was that the answers to certain questions propounded by the medical examiner were false, and made for the purpose of inducing the company to issue the policy. It further stated that but for such false and fraudulent answers it would not have issued the policy. The reply denied the allegations of the answer. The application for the policy was made August 25, 1923. The policy was issued and the premium paid August 28, 1923. McGraw died January 30, 1924. The judgment of the court below was for $6,360, with interest, and this action is prosecuted to reverse that judgment. Two questions were argued by plaintiff in error: That the verdict and judgment were against the weight of the evidence; and that there was error in the charge of the trial court. McGraw, who could not read or write, signed the application by his mark. The answers to questions on which the plaintiff in error bases its claim for a reversal were with reference to McGraw's health; that it was good; that he had not been attended by nor had not consulted a physician; that he had not been afflicted, among numerous other diseases mentioned, with cancer. The medical examiner's certificate recites that Dr. Stall was named by the deceased as their *Page 310 family physician; as one that had attended him. According to the record, McGraw told Dr. Lumis, the company's medical examiner, that he had consulted Dr. Lang, of Cincinnati. Lumis then changed his answer and said McGraw told him he had been to a physician in Cincinnati, also that he had consulted Dr. Bauer, and that Bauer had lanced the glands in his neck, and that McGraw told him (Lumis) that he had some trouble with his nose and throat. The defendant below offered numerous witnesses to the effect that, in the spring and summer of 1923, McGraw had been attended by numerous physicians; that he had been in a hospital once at Middletown and once at Cincinnati; and defendant claimed that McGraw was suffering from cancer of the bucal cavity. Other testimony was offered to the effect that a foreign substance, a piece of wood, or a piece of cornstalk, had gotten into his nose, and remained there for such length of time that it caused a sore; that the doctors in Cincinnati did not discover it; that the family physician removed the same; and that he recovered from the trouble that he had suffered earlier in the year. The medical testimony offered by the defendant is in conflict. It is also in the record that early in October, 1923, the company, through its agent, directed a re-examination of McGraw, and that the physician passed him a second time. Counsel for the defendant, in his examination of its witnesses, without objection, conducted an unusual examination, in that leading questions were *Page 311 asked throughout, and there was nothing that he desired to bring out that was not before the jury. To many of the questions, counsel even suggested the answers, and the witnesses responded accordingly. The claim that the beneficiary participated in the fraud charged in the answer was based on the fact that she called at the office of the agent with reference to the insurance, and was present when the deceased answered the questions of the medical examiner and when he signed the application. There is no evidence that she in any way directed the answers, or suggested what answers should be made, so that the question of fact on the disputed evidence was properly submitted to the jury. The trial court read Section 9391, General Code, to the jury. It is: "No answer to any interrogatory made by an applicant, in his or her application for a policy, shall bar the right to recover upon any policy issued thereon, or be used in evidence upon any trial to recover upon such policy, unless it be clearly proved that such answer is willfully false, was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer, the policy would not have been issued; and, also that the agent or company had no knowledge of the falsity or fraud of such answer." At the request of the defendant, the court instructed the jury, by special charge, as to what in law was the meaning of good health; that, if insured's answers to the questions propounded by the medical examiner were false, and he knew they were false, then such statements were willfully *Page 312 false and fraudulently made within the meaning of the statute; also that, if the insured answered "Yes" to the question, "Are you in good health?" and knew at the time that he was afflicted with any serious ailment or disease which tended to weaken or undermine his health, such answer was willfully false, whether or not he knew what particular disease or ailment he had. In view of this charge, and the rule stated by the court by which the jury should be governed in determining the question of falsehood and fraud, in making the application for this insurance, and the testimony offered under circumstances most favorable to the defendant, there can be no question but that the jury determined, in its judgment, that there was neither falsity nor fraud on the part of the plaintiff or the deceased in procuring the policy. This position is emphasized by the fact that a second medical examination was made, and the company had more than three months thereafter to investigate and determine whether or not it would cancel the policy. It did not cancel it. Counsel complains of the general charge of the court, and calls attention to three parts on which he relies as error. An examination of the charge, in connection with the parts complained of, discloses that the charge was more favorable to the defendant than it was entitled to. The statute provides that such answers to interrogatories shall not bar a recovery upon any policy of insurance, nor be used in evidence upon any trial to recover upon such policy, unless it be clearly proved that such answer was willfully false, was fraudulently made, *Page 313 that it was material, and induced the company to issue the policy, that but for such answer the policy would not have been issued, and that the agent or company had no knowledge of the falsity or fraud of such answer. From the second examination, and the fact that some of the physicians lived within a short distance of the office of the medical examiner, and the time that elapsed from August 25 to the latter part of January, it would seem that the company was given ample opportunity to investigate the statements made in the application. Counsel for plaintiff in error claims that the court erred in its charge, in that it stated that the burden of proving that John R. McGraw made the statements, or any of them, as set out in the answer, that they were willfully false and fraudulent, that they were material, and induced the company to issue the policy, and that, but for them, the policy would not have been issued, and that the agent of the company and the defendant company had no knowledge of their falsity or fraud, rests upon the defendant. If counsel for the plaintiff in error means that it was error for the court to charge that the burden was on the defendant, we call attention to Section 9391, General Code, above quoted. It says that no answer shall bar a recovery, etc., or be used in evidence, etc., unless it be clearly proved that such answer is willfully false, was fraudulently made, that it was material, and induced the company to issue the policy. We further call attention to the fact that these answers were offered in evidence, and, without any finding, the defendant *Page 314 was permitted to, and did, call numerous witnesses to testify as to McGraw's condition, and, in effect, give their opinion that said answers were false and fraudulent. If this statute means anything, it is that, before the answers to questions may be offered in evidence, the company must show that they were false and fraudulently made. In our view, the court did not err in this charge, and in fact, taking the charge as a whole, it was more favorable to the defendant than it should have been. In this view of the case the judgment of the court of common pleas will be affirmed. Judgment affirmed. BUCHWALTER, P.J., and HAMILTON, J., concur.

2016-07-06 06:41:57.402332+00

Fain

Plaintiff-appellant the State of Ohio appeals from an order of the trial court requiring disclosure of the identity of a confidential informant. The State contends that the trial court abused its discretion in ordering disclosure. We agree. Consequently, the judgment of the trial court isReversed, and this cause is Remanded for further proceedings. I Shortly before 7:00 a.m. one Friday morning in November, 1997, Travis Eskew was shot while driving his car in the City of Dayton. Although Eskew survived, he was unable to identify his assailant. There were two alleged eyewitnesses to *Page 634 the shooting, Tashia Benson and Anthony Brown. Both witnesses gave roughly similar physical descriptions to the police. Between November, 1997, and February, 1998, four separate photospreads were shown to Benson based on tips received by the police concerning the shooter's identity. None of the photographs contained a photograph of Deleon, and Benson did not make an identification from any of these spreads. In mid-February 1998, Dayton Police Detective Doyle Burke, and his supervisor Sergeant Gary White, received information from a confidential informant that Deleon had admitted his participation in the offense. Based upon this tip, a new photospread was shown to Benson, which included Deleon's photograph. Benson identified Deleon as the shooter, subject to verifying her identification in person. Deleon was then arrested, and a lineup was arranged. Both Benson's identification of Deleon's photograph and the confidential informant's statement that Deleon had admitted his participation in the offense were recited in the affidavit supporting the warrant to arrest Deleon. Benson was unable to attend the lineup, but Brown, the other witness, did attend, and identified Deleon. At a hearing on Deleon's motion to suppress and for an order to disclose of the identity of the confidential informant, Benson testified, however, that Deleon was definitely not the person who did the shooting. Deleon moved to suppress evidence, and also for an order to disclose the identity of the confidential informant. The trial court conducted a hearing on these motions. Following a hearing, the trial court denied Deleon's motion to suppress, but granted his motion for an order disclosing the identity of the confidential informant. From the order to disclose the identity of the confidential informant, the State appeals. II The State's sole Assignment of Error is as follows: "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED THE STATE TO DISCLOSE THE IDENTITY OF A CONFIDENTIAL INFORMANT." The State has an obvious interest in preserving the confidentiality of informants to whom it has promised confidentiality. Every time this promise cannot be honored, it becomes more difficult to secure the cooperation of informants in the future upon a promise of confidentiality. Nevertheless, the identity of an informant must be revealed to a criminal defendant when the testimony of the informant is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing and making a defense *Page 635 to criminal charges. State v. Williams (1983), 4 Ohio St.3d 74, syllabus. In State v. Williams, supra, the confidential informant served as the intermediary between a police officer and a cocaine seller. The confidential informant took the money from the police officer, went to the defendant, exchanged the money for the cocaine, and delivered the cocaine to the police officer. This case could not have been prosecuted without disclosing the existence of the confidential informant to the jury. Furthermore, it is possible that the confidential informant may have provided testimony concerning the details of the alleged transaction that might have been helpful to the defendant. Similarly, in State v. Brown (1992), 64 Ohio St.3d 649, 653, where the disclosure of a confidential informant was required, the court noted that the confidential informant was likely to have been the sole person to witness the entire transaction. In the case before us, the confidential informant was not a witness to the alleged offense. The confidential informant merely claimed to have heard Deleon admit his commission of the offense. It is, therefore, unlikely in the extreme that the confidential informant could provide evidence that would be useful to Deleon. Furthermore, the State has made a strategic decision not to call the confidential informant as a witness to testify concerning Deleon's alleged admission that he committed the offense. Instead, the State intends to rely upon Brown's testimony identifying Deleon as the shooter, possibly corroborated to some slight extent by Benson's initial identification of Deleon's photograph, although that corroboration was essentially nullified by her testimony, upon observing Deleon in court, that he was not the shooter. Deleon claims that he is entitled to know the identity of the confidential informant because of the "obvious danger that the jury will impermissibly speculate that the confidential informant clearly identified Mr. Deleon as the suspect, thereby bolstering the weight they give to otherwise shaky testimonial evidence." This assumes that the jury would become aware of the existence of the confidential informant. In our view, there is no reason whatsoever for the jury to be informed of the existence of the confidential informant. It is immaterial why police officers chose to show Benson a fifth photospread containing Deleon's photograph. Even if they did it on a mere hunch, or on the remote chance that the perpetrator might be included within the photospread, the fact that Benson identified Deleon's photograph justified his arrest and showing in the lineup, at which he was identified by Brown. We agree with Deleon that disclosure of the existence of the confidential informant to the jury would be unfairly prejudicial. See, State v. Sinkfield (October 2, 1998), Montgomery App. No. 16277, unreported, at 10, 1998 WL 677413. *Page 636 In the circumstances of the case before us, the prejudicial impact of disclosure of the existence of the confidential informant to a jury would so outweigh any conceivable probative value that it might have as an explanation for showing the fifth photospread to Benson that the State is cautioned that any reference to the existence of the confidential informant, in the presence of the jury, would likely be grounds for a mistrial. Because: (1) there is nothing in this record to suggest that the confidential informant witnessed, or participated in, the offense; (2) there is nothing in the record to suggest that the testimony of the confidential informant would be useful to the defense; (3) the State has indicated that it will not rely upon the evidence of Deleon's alleged admission to the confidential informant; and (4) there is no conceivable reason for disclosing the existence of the confidential informant to the jury, we conclude that the interest of the State in maintaining its promise of confidentiality outweighs any interest of Deleon in discovering the identity of the confidential informant. Consequently, we agree with the State that the trial court abused its discretion by ordering the disclosure of the identity of the confidential informant. The State's sole Assignment of Error is sustained. III The State's sole Assignment of Error having been sustained, the judgment of the trial court is reversed, and this cause isremanded for further proceedings. WOLFF and YOUNG, JJ., concur. *Page 637

2016-07-06 06:42:01.665379+00

Petree

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 476 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 477 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 478 OPINION Plaintiff, William E. DeBolt, appeals from a decision of the Franklin County Court of Common Pleas granting the summary judgment motion of defendants, Eastman Kodak Company ("Kodak") and John Shatzer, on plaintiff's handicap discrimination claim. Plaintiff was employed by Kodak as a field engineer in Kodak's Customer Equipment Services Division from June 22, 1970, until his termination on February 27, 1997. As a field engineer, plaintiff was required to travel to Kodak customer premises to service, repair and install various types of imaging equipment. Among the types of equipment plaintiff serviced and/or repaired were large, laser-powered microfiche machines known as KOM equipment.1 The KOM equipment was usually housed in highly air-conditioned environments with false floors and numerous vents for increased airflow. Kodak provided plaintiff with the training necessary to service and/or repair Kodak's equipment, including the KOM equipment. As new products were developed and/or upgrades to the equipment occurred, Kodak provided plaintiff with appropriate training. Many of these training sessions occurred in Rochester, New York, the location of Kodak's corporate headquarters. The training sessions varied in length of time. *Page 479 During the time period particularly relevant to the instant case (1993-1996), plaintiff worked in Kodak's Columbus Business Information Systems ("BIS") division. The Columbus BIS team was comprised of a group of field engineers who serviced and maintained Kodak equipment in central Ohio. Each field engineer was responsible for a specific territory comprised of specific Kodak customer accounts. The number of field engineers in the Columbus BIS area during the relevant period of time varied from five to seven. Several of Kodak's customers in the central Ohio area had KOM equipment for which Kodak provided twenty-four hour service contracts. Because of these service contracts, the field engineers who were responsible for servicing KOM equipment were required to participate in a "standby" program, which required the field engineers to be available twenty-four hours a day to answer customer service calls. As participation in the "standby" program was demanding, the field engineers rotated the responsibility for being on "standby." In 1993, only three field engineers on the Columbus BIS team — including plaintiff — were trained to service the KOM equipment. All three participated in the "standby" program. On September 11, 1993, plaintiff became ill with a serious viral infection and was hospitalized and unable to work for much of the remainder of 1993. Although plaintiff's condition stabilized and he was able to return to work, plaintiff's illness left him with a permanent diagnosed condition of gastroesophageal reflux, causing recurrent pulmonary problems. The condition causes him to suffer from an asthma-like condition of chronic incapacitating severe cough. Plaintiff suffers a relapse of his symptoms when exposed to cold air environments. When plaintiff eventually returned to work in December 1993, he did so without medical restrictions. In January 1994, plaintiff informed his then manager, Nick Givens, that he had developed "heightened sensitivity" to cold air and should avoid cold environments. In addition, plaintiff refused to attend an out-of-town training assignment, stating that he wanted to be near his medical provider. Plaintiff further informed Mr. Givens that out-of-town training could not be planned for the future. Kodak, through its health services coordinator, Joan Davis, R.N., advised plaintiff that medical verification was needed to clarify his medical status. In response, plaintiff submitted a note from his treating physician, Richard A. Brandes, M.D. The note was dated January 5, 1994, and indicated that since plaintiff's illness in October 1993, cold weather and certain chemical fumes aggravated his "lung throat problems." No medical restrictions were imposed by Dr. Brandes. After receiving the January 5, 1994 note, Nurse Davis requested further clarification of plaintiff's medical condition. In a note dated April 24, 1994, Dr. *Page 480 Brandes indicated that plaintiff had developed a sensitivity to cold air that would probably last for a year. Again, no medical restrictions were imposed. By letter dated April 29, 1994, Nurse Davis requested clarification of Dr. Brandes's April 24, 1994 note, specifically as to whether medical restrictions were recommended or required. In response, Dr. Brandes provided a letter, dated June 22, 1994, which read, in pertinent part, as follows: My request for work privilidge [sic] is based upon several things. Mr. Debolt had a debilitating cough and hemoptysis that put him in the hospital for extensive tests. A definite cause was never determined. However, since he was discharged in October of 1993, Mr. DeBolt has had several episodes of a similar cough that responded to antibiotics. Antecendent [sic] to these episodes there has been an exposure to air draft, usually cold. Exposure to excess chemical fumes also is bothersome. It is desired that Mr. DeBolt can move away from these physical conditions when he meets them. Following receipt of Dr. Brandes's June 22, 1994 letter, Nurse Davis informed Mr. Givens, by memorandum dated June 30, 1994, in pertinent part, as follows: The restriction by Dr. Brandes to avoid cold air drafts does not appear to significantly affect Bill's present position, because both the doctor and Bill have agreed simply moving away from drafts would be an acceptable accommodation. * * * This restriction however, has potential for affecting future placement, especially to Comstar duties since these presumably would occur in a cold, closed environment with constant air drafts. * * * * * * [W]e have a clearly defined medical problem, as verified by a lengthy history of treatment, with proactive, specialized care by both the primary doctor and the specialist, and a restriction has been clearly prescribed. * * * [T]he advised restriction is not unreasonable. * * * This does not mean this case cannot be treated proactively, now that we finally have a specified restriction to work with. Dr. Brandes has been advised of Bill's job functions and clearly confirmed Bill only has this one accommodation need, which can be simply accommodated, at least in his present job. We have now diligently determined that Bill only has this one accommodation need, and we can confirm Bill's ability to perform job functions and to be expected to meet all job expectations, without regard to his medical condition. * * * After further correspondence between Nurse Davis and Dr. Brandes, Mr. Givens advised plaintiff by memorandum dated August 5, 1994, that he would not *Page 481 be assigned to service and/or repair equipment housed in computer rooms with "increased air flow due to false/raised floors with numerous vents." Such restrictions effectively precluded plaintiff from working in all environments wherein the KOM equipment was housed. Mr. Givens noted, however, that no other restrictions existed that would prevent plaintiff from performing the duties described in his job description. Mr. Givens further advised plaintiff that business conditions within the Columbus BIS service area at that time permitted Kodak to provide the accommodation. However, Mr. Givens specifically advised plaintiff that as "equipment populations and business conditions change it may be necessary in the future to train [him] on other product lines and/or adjust [his] working hours [to] better accommodate [his] restrictions." Plaintiff remained on this modified work assignment for approximately two and one-half years. During this time period, plaintiff did not service any KOM equipment. As a consequence, plaintiff did not participate in the twenty-four hour "standby" program. Plaintiff continued, however, to service all non-KOM products in the BIS division. In November 1995, plaintiff was "loaned" to assist another field engineer with the servicing of Apple computer products, after Kodak secured a servicing contract for the Apple computer. In April 1996, plaintiff was offered a position as a field engineer in Kodak's New Products Division. Plaintiff rejected the offer and chose to remain in the BIS division.2 On April 23 and May 10, 1996, Nurse Davis wrote to plaintiff and Dr. Brandes, respectively, seeking an update of plaintiff's current medical status, including whether or not the medical restrictions imposed in June 1994 were still appropriate. By way of response, Dr. Brandes indicated that plaintiff had "no specific pulmonary problem except that he has a sensitivity to drafts which sets off coughs." He further indicated that the medical restrictions currently in place were warranted based upon plaintiff's present medical condition. In a memorandum dated June 11, 1996, Nurse Davis informed plaintiff's new manager, defendant John Shatzer, and Mr. Shatzer's supervisor, district manager Joseph O'Brien, that Dr. Brandes had confirmed that plaintiff's restrictions were of an indefinite duration. In October 1996, Kodak underwent a company-wide restructuring and reduction in force that resulted in the layoff of two field engineers in the Columbus BIS service team. As a result of the layoff, only plaintiff and one other field engineer had the necessary training to service the KOM products for *Page 482 the entire Columbus BIS service area. As a consequence, Mr. Shatzer and Mr. O'Brien met with plaintiff on October 22, 1996, and advised him that as a result of the layoff, Kodak needed a trained field engineer to assist in servicing the KOM products and participate in the "standby" program. According to the deposition testimony of Mr. Shatzer, plaintiff was asked to obtain an update from Dr. Brandes on his medical restrictions so that Mr. Shatzer and Mr. O'Brien could make decisions regarding plaintiff's medical accommodations and the KOM servicing situation. In contrast, plaintiff testified by deposition that Mr. Shatzer and Mr. O'Brien told plaintiff that he must have the medical restrictions lifted so that he could work on the KOM equipment again. According to plaintiff, he thereafter contacted Tom Zerante, an employee in Kodak's Human Resources Department, and asked him what would happen if Dr. Brandes did not lift the restrictions. Mr. Zerante responded that if the restrictions were not lifted, plaintiff could be placed on disability. Fearing that he would lose his job, plaintiff asked Dr. Brandes to lift the restrictions. By letter dated October 25, 1996, Dr. Brandes informed Kodak that the restrictions placed on plaintiff's work assignments were lifted and he could return to unrestricted activities. On October 26, 1996, plaintiff wrote Nurse Davis, explaining that Dr. Brandes had lifted the medical restrictions only because plaintiff told him that he had been informed by Kodak management that, due to company downsizing, he probably would not have a job in Columbus if the restrictions were not lifted. Upon receipt of both letters, Nurse Davis confirmed with Dr. Brandes, both verbally and in writing, that plaintiff's medical restrictions were properly lifted. In further response to plaintiff's letter, Mr. O'Brien wrote to plaintiff on November 1, 1996, stating that the reason an update of his medical status was requested was to determine possible work options for him if he could not service KOM products. After receiving Mr. O'Brien's letter, plaintiff did not have the medical restrictions reinstated. After plaintiff's medical restrictions were lifted, he began servicing the KOM equipment again. According to Mr. Shatzer's deposition testimony, plaintiff never indicated that he was having medical problems stemming from working in the KOM environment. However, plaintiff did inform Mr. Shatzer that he felt uncomfortable servicing the KOM equipment because it had been a long time since he had serviced that equipment. He indicated that he felt especially uncomfortable servicing the "image-generator" portion of the KOM equipment because he missed the training on that portion during his original KOM training. In early December 1996, Mr. Shatzer arranged for plaintiff to take the two-week "image-generator" portion of the KOM training at Kodak's training center in Rochester, New York, in late February or early March 1997. When Mr. Shatzer informed plaintiff of the scheduled training, plaintiff advised him that he also *Page 483 needed training on the "data-writer" equipment. When Mr. Shatzer contacted the Rochester training center to request the additional training, he was advised that since plaintiff needed training on two types of equipment, it would be more beneficial for plaintiff to take the entire seven-week KOM equipment class. Thereafter, Mr. Shatzer scheduled plaintiff for the seven-week class. In late February 1997, when Mr. Shatzer became aware of the precise dates for the class, he instructed Kodak field specialist, Daniel Hein, to advise plaintiff that he had been scheduled for the seven-week program beginning March 3, 1997. According to the deposition testimony of Mr. Hein, plaintiff indicated that he was not going to attend the training because he did not want to miss his son's school activities. After being advised of plaintiff's response, Mr. Shatzer telephoned plaintiff on February 26, 1997, and told him that he was expected to attend the March 3, 1997 training. According to the affidavit and deposition testimony of Mr. Shatzer, plaintiff said he was not going to attend the training because of his son's school activities and because his wife told him he was not going. Mr. Shatzer told plaintiff that such refusal could have serious consequences. Thereafter, plaintiff stated that he would go back to Dr. Brandes and have his medical restrictions reinstated. One day later, on February 27, 1997, Mr. Shatzer terminated plaintiff from his employment with Kodak as a consequence of plaintiff's refusal to attend the training. According to plaintiff's deposition testimony and the allegations set forth in the complaint, plaintiff's cough and sensitivity to cold resumed after he again began working in the KOM environment. Although he told co-workers of the problems he was experiencing, he did not inform Mr. Shatzer. When Mr. Hein informed him that he had been scheduled for the seven-week training session in Rochester, plaintiff was concerned that Kodak expected him to become the primary KOM technician and that such expectation was impossible given his health problems. Accordingly, plaintiff asked Mr. Shatzer on February 26, 1997, if he could be scheduled for a shorter training session, or if he could attend the full seven-week training at a different time. In addition, plaintiff suggested that since he needed only a portion of the training, it would make more sense to send another field engineer to attend the full seven-week training session. Plaintiff also informed Mr. Shatzer that the cold air in some of the computer rooms was bothering him and that he may need to resume his medical restrictions. Mr. Shatzer stated that he would call plaintiff and let him know what he had decided. Mr. Shatzer telephoned plaintiff the next day and told him he had been terminated. On February 28, 1997, plaintiff met with Dr. Brandes in order to obtain "a recent note * * * backing up the fact that I was having problems." (9/22/00 DeBolt depo. at 140.) The note stated, in pertinent part that: "[I]n 1993 [plaintiff] developed some pulmonary problems thought to be viral. The residual *Page 484 problem is sensitivity to cold and cold drafts which produce chest discomfort. He tries to avoid these situations." On February 26, 1999, plaintiff filed a pro se complaint against Kodak, asserting causes of action for breach of contract, age discrimination and handicap discrimination arising from Kodak's discharge of plaintiff. Plaintiff voluntarily dismissed that action, without prejudice, on October 29, 1999. Thereafter, plaintiff obtained counsel and refiled his complaint against Kodak on January 3, 2000. Plaintiff also named Mr. Shatzer as a defendant. Plaintiff's refiled complaint asserted claims for handicap discrimination in violation of R.C. 4112.02 and 4112.99, age discrimination in violation of R.C. 4112.14 and 4112.99, breach of implied contract and the tort of wrongful discharge in violation of public policy. On March 16, 2000, defendants filed a motion to dismiss the age discrimination claim pursuant to Civ.R. 12(B)(1) on the grounds that the court lacked subject matter jurisdiction over that claim. On the same day, defendants filed a separate motion to dismiss the complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted. On June 8, 2000, the trial court granted defendants' motion to dismiss the age discrimination claim. On June 13, 2000, the trial court denied defendants' Civ.R. 12(B)(6) motion to dismiss. On October 10, 2000, defendants filed a summary judgment motion on the remaining three claims. On December 22, 2000, the trial court filed a decision and entry granting defendants' motion for summary judgment on all three claims. As to plaintiff's handicap discrimination claim, the court found: Assuming that Plaintiff has demonstrated that an issue of fact exists concerning whether he is handicapped or was perceived to be handicapped and whether his employment was adversely affected by the handicap or perceived handicap, the Court still finds that Plaintiff has not set forth a prima facie case of handicap discrimination because he has not demonstrated that he could safely and substantially perform the essential functions of a Field Engineer. [12/22/00 Decision and Entry at 7.] Plaintiff filed a timely notice of appeal as to the handicap discrimination claim only, asserting the following two assignments of error: [1.] The trial court erred in granting the appellee-defendant's motion for summary judgment as to the appellant-plaintiff's claim for disability discrimination when there was a legitimate dispute of fact for a jury's consideration as to whether the plaintiff was handicapped and whether appellant could perform the essential functions of his position. [2.] The trial court erred in granting the appellees-defendant's motion for summary judgment as to the appellant-plaintiff's claim for disability discrimination holding that appellees' actions in creating an "undue hardship" relieved *Page 485 appellees of the duty to accommodate a handicapped employee and made appellant's request for accommodation "unreasonable." We address plaintiff's assignments of error together. Essentially, plaintiff argues that the trial court erred in granting defendants' motion for summary judgment in that genuine issues of material fact exist as to whether plaintiff demonstrated a prima facie case of handicap discrimination. An appellate court reviews a trial court's grant of summary judgment independently and without deference to the trial court's determination. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. In reviewing a trial court's disposition of a summary judgment motion, an appellate court applies the same standard as that of the trial court. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107. Before summary judgment can be granted under Civ.R. 56(C), the trial court must determine that: "(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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made." State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. 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. Handicap discrimination in employment is prohibited by R.C. 4112.02, which read, at the time this case arose, in pertinent part3: It shall be an unlawful discriminatory practice: (A) For any employer, because of the race, color, religion, sex, national origin, handicap, age, or ancestry 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. To establish a prima facie case of handicap discrimination under R.C.4112.02(A), the party seeking relief must establish: "(1) that he or she was handicapped, (2) that an adverse employment action was taken by an employer, at *Page 486 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, citing Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 281. The Ohio Supreme Court has held that Ohio courts may look to cases and regulations interpreting the American with Disabilities Act ("ADA") for guidance in interpreting Ohio's anti-discrimination statutes. Id. at 573. At the time the instant case arose, R.C. 4112.01(A)(13) defined "handicap," as follows: "Handicap" means 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; or being regarded as having a physical or mental impairment. The handicap discrimination statute was designed to protect those who live with a handicap that significantly affects the way they live their lives on a daily basis. McGlone, supra, at 571. As a consequence, not every physical or mental condition from which a person may suffer constitutes a handicap. See Maloney v. Barberton Citizens Hosp. (1996),109 Ohio App.3d 372. Thus, a person alleging handicap discrimination must first demonstrate that he suffers from a physical or mental impairment that substantially limits one or more of his major life activities. In 1999, the United States Supreme Court decided a triology of cases interpreting the ADA. See Sutton v. United Air Lines, Inc. (1999),527 U.S. 471, 119 S.Ct. 2139; Albertson's, Inc., v. Kirkingburg (1999),527 U.S. 555, 119 S.Ct. 2162; and Murphy v. United Parcel Service, Inc. (1999), 527 U.S. 516, 119 S.Ct. 2133. In these cases, the Supreme Court made it clear that not every physical or mental impairment constitutes a disability, even though the person may have an impairment that involves one or more of his major life activities. This is so because the extent of the physical or mental impairment, regardless of its nature, must be substantially limiting. Albertson's, supra at 563, 2167. As the Supreme Court explained, "[t]he definition of disability also requires that disabilities be evaluated `with respect to an individual' and be determined based upon whether an impairment substantially limits the `major life activities of such person.'" Sutton, supra, at 483, 2147. The Supreme Court further stated that the phrase "substantially limits" "is properly read as requiring that a person be presently — not potentially or hypothetically — *Page 487 substantially limited in order to demonstrate a disability." Sutton, supra, at 482, 2146. The Supreme Court further found that: * * * A "disability" exists only where an impairment "substantially limits" a major life activity, not where it "might," "could," or "would" be substantially limiting if mitigating measures were not taken. A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently "substantially limits" a major life activity. To be sure, a person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is corrected it does not "substantially limit" a major life activity. [Id.] In the instant case, plaintiff asserts that his handicap is "gastroesophageal reflux causing recurrent pulmonary problems becoming acute when exposed to cold air environments." (Complaint, paragraph 41.) At his deposition, plaintiff testified that the cold sensitivity occurred at times other than at work, but working in air-conditioned computer rooms housing the KOM equipment was the main source of irritation. (9/21/00 DeBolt depo. at 160-161; 9/22/00 depo. at 146-148.) When asked to describe how his alleged handicap affected him at work, plaintiff testified: Air conditioning bothers me. Burning chest, coughing. Since I have the reflux, I could cough up stomach acid into my lungs. I get sinus infections which, if they get bad enough, I would have to take antibiotics, which, because I have got such a bad history with antibiotics, could be a very severe problem. [9/22/00 DeBolt depo, at 11.] As to how his condition affected him outside of work, plaintiff testified: The same problems. We don't use the air conditioning at my house unless it is a last resort with my wife. Usually there is a lot of arguments about using it. The same in traveling in the car. Friend's house. It really doesn't make any difference where I am at. It has bothered me in shopping centers, wherever I happen to be at. Sometimes more than others, depending on the — usually the temperature difference in how close I am to the vents. [9/22/00 DeBolt depo. at 11-12.] Plaintiff further testified that his treatment plan consisted, generally, of avoiding air conditioned environments and, when necessary, taking antibiotics, resting, and applying heat to his chest. (9/22/00 DeBolt depo. at 13-19.) In Minnix v. Chillicothe (C.A.6, 2000), 205 F.3d 1341, Minnix, a bus mechanic, alleged that his employment involved continual exposure to diesel exhaust fumes, resulting in a diagnosis of probable occupational induced reactive airway disease and recurrent bronchitis. After a leave of absence due to breathing difficulties, Minnix returned to work with medical restrictions that his work area be properly ventilated. Shortly thereafter, Minnix's employer terminated him from his employment. After the termination, Minnix filed suit alleging that his termination was in violation of the ADA. The district court held that *Page 488 Minnix failed to demonstrate a genuine issue of fact as to whether he was disabled, and the Sixth Circuit Court of Appeals affirmed. The courts rejected Minnix's claims that his major life activities of working and breathing were substantially limited due to his physical condition. With regard to the major life activity of breathing, the Minnix court found: Minnix has not offered any probative evidence that his breathing condition is substantially limited. The record is entirely devoid of any medical evidence that would establish Minnix's breathing difficulties as severe, long term, or permanent. There is also ample evidence that Minnix can engage in many activities including working in the absence of diesel fumes. [Citation omitted.] Thus, it cannot be said that Minnix has shown a genuine issue of material fact as to whether his life activity of breathing is substantially impaired. [Id. at 1342.] With respect to the major life activity of working, the Sixth Circuit Court of Appeals explained: The district court properly held that Minnix' s major life activity of working is not substantially limited by his condition. Minnix testified that he is able to work, but that he cannot work in a job that would expose him to diesel fumes. This neither amounts to an inability to work nor a significant restriction as to the condition, manner, or duration under which Minnix can work. * * * [Id.] The court also found support for the district court's determination that Minnix was not substantially limited as a result of his admissions that he could work in the garage given proper ventilation; that he could work on nondiesel equipment; and that he had actively sought various other employment positions. Id. The Ohio Supreme Court has also discussed what factors should be considered in determining whether a person is substantially limited in the major life activity of working. In McGlone, supra, the Ohio Supreme Court, citing Section 1630.2(j)(3), Title 29, C.F.R. stated: * * * "[t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." [Emphasis sic; id. at 573.] In the instant case, there is no indication, medical or otherwise, that plaintiff's pulmonary problems substantially limit his major life activities of breathing or working. With regard to breathing, plaintiff's own testimony establishes that his alleged condition is not "presently" limiting in any respect. *Page 489 He testified that as a result of his sensitivity to cold air drafts, he gets "sinus infections which, if they get bad enough, I would have to take antibiotics, which * * * could be a serious problem." (Emphasis added.) (9/22/00 DeBolt depo. at 11.) Plaintiff's testimony establishes nothing more than that his impairment, i.e., sensitivity to cold air drafts, may cause sinus infections, which may require antibiotics, which may in turn cause a serious problem. Further, plaintiff testified that his treatment plan consisted generally of avoiding air conditioned environments. Thus, it is clear that plaintiff's impairment may be corrected simply by taking measures to avoid environments with cold air drafts. No evidence establishes that plaintiff has difficultly breathing when not in air-conditioned or otherwise cold air environments, or even that being in such cold air environments always results in breathing difficulties. The medical evidence further negates plaintiff's contention that his impairment substantially limits his major life activity of breathing. None of Dr. Brandes's medical reports establish that plaintiff's breathing problems are severe, long term, or permanent. In January 1994, Dr. Brandes imposed no medical restrictions and merely stated that cold weather aggravated his "throat lung problems." In April 1994, Dr. Brandes stated that plaintiff's cold air sensitivity would last only for a year and again imposed no medical restrictions. In June 1994, Dr. Brandes imposed a restriction only that plaintiff avoid cold air drafts because the drafts were "bothersome." In mid-1996, Dr. Brandes indicated that plaintiff had "no specific pulmonary problem" other than a sensitivity to cold air drafts which tended to set off his cough. In October 1996, Dr. Brandes indicated that plaintiff had had few problems with his sensitivity in 1995 and 1996. Accordingly, he lifted plaintiff's work restrictions and indicated that he could return to unrestricted activities. Although plaintiff contends that Dr. Brandes lifted the restrictions only because plaintiff implored him to do so, Nurse Davis's affidavit establishes that she confirmed with Dr. Brandes, both verbally and in writing, that he had properly lifted plaintiff's restrictions. Plaintiff has offered no evidence to contradict Nurse Davis's affidavit. In addition, the record contains no medical evidence establishing that plaintiff's restrictions were ever reinstated. The February 28, 1997 note from Dr. Brandes, obtained by plaintiff after he was terminated from his employment, indicates only that plaintiff's "problem" is "sensitivity to cold and cold drafts which produce chest discomfort" and that plaintiff "tries to avoid these situations." With regard to the major life activity of working, there is no evidence that plaintiff's condition disqualified him from performing a class of jobs or a wide range of jobs. See McGlone, supra. Plaintiff testified that he continued to work for Kodak servicing computer equipment after the medical restrictions were imposed. Although plaintiff was restricted from servicing KOM equipment, he *Page 490 was able to service all non-KOM products in the BIS division. Further, plaintiff testified that, since his termination from Kodak, he continues to work in his general field of servicing and/or repairing computers, but does not work in computer room environments similar to those which housed the KOM equipment. Plaintiff's testimony establishes only that he is unable to perform a single, particular job (that of servicing computer equipment housed in highly air-conditioned environments), but is not significantly restricted in his ability to service and/or repair computer equipment in other types of environments. On the record before us, this court finds that plaintiff has failed to raise a genuine issue of material fact as to whether plaintiff's physical impairment substantially limits his major life activities of breathing and/or working. We further find that plaintiff has not demonstrated a genuine issue of material fact as to whether Kodak regarded him as being handicapped. Pursuant to R.C. 4112.01(A)(13), even if a person is not handicapped, he can receive the protection of the handicap discrimination laws if he is "regarded [by his employer] as having a physical or mental impairment." Plaintiff bases his claim that Kodak "regarded" him as being handicapped solely on the fact that Kodak recognized his physical impairment and provided an accommodation for it. In Plant v. Morton Internat'l (C.A.6, 2000), 212 F.3d 929, the Sixth Circuit Court of Appeals rejected Plant's contention that he was "regarded" as disabled under the ADA or handicapped within the meaning of Ohio's handicap discrimination law where his only evidence was "because [the employer] made accommodations for [his] medical restrictions." The court found that "[plaintiff] cannot show that [the "regarded as"] provision applies to him merely by pointing to that portion of the record in which his supervisor admitted that he was aware of [plaintiff's] medical restrictions and modified [plaintiff's] responsibilities based on them." Id. at 938. The same result is compelled in the instant case. Plaintiff's contention that Kodak was aware of his medical restrictions and provided an accommodation for them is insufficient to demonstrate that Kodak "regarded him" as being handicapped. For the foregoing reasons, we find that plaintiff has failed to demonstrate a genuine issue of material fact establishing that he is "handicapped" as defined in R.C. 4112.01(A)(13). Even assuming that plaintiff had demonstrated a genuine issue of material fact as to whether or not he is handicapped, plaintiff must also establish that adverse employment actions were taken based, at least in part, upon the handicap. See Beauchamp v. Compuserve, Inc. (1998),126 Ohio App.3d 17, 22. Plaintiff contends that Kodak engaged in two separate adverse job actions against him based, at least in part, upon his handicap. Specifically, *Page 491 plaintiff first argues that in October 1996, Kodak "compelled" him to choose between either the loss of his job or "the loss of Kodak's previously provided reasonable accommodation to his impairment of not requiring him to work in the Komstar environment." (Plaintiff's brief at 20.) Plaintiff further argues that Kodak terminated him after he "expressed to Appellee Shatzer that his medical restrictions and accommodation would have to be brought back and his unwillingness to leave immediately for 9 week4 [sic] of training on Komstar, the very source of his restrictions." (Plaintiff's brief at 20.) Upon review of the record, we cannot find that a genuine issue of material fact exists as to whether Kodak's inquiry into the possibility of plaintiff's medical restrictions being lifted constituted an adverse employment action taken based upon plaintiff's alleged handicap. When Kodak first accommodated plaintiff's medical restrictions, plaintiff was advised that business conditions at that time allowed Kodak to make the accommodation, but that the situation could change based on fluctuating business conditions. Further, it was Kodak's practice to continually monitor and secure updated medical verification for any medical restrictions. (Davis affidavit, paragraph 6.) The mere fact that Kodak did not require plaintiff to service the KOM equipment and/or participate in the "standby" program for more than two years did not convert the temporary accommodation into a permanent one. In addition, it is undisputed that at the time plaintiff was questioned about his medical restrictions, Kodak was undergoing a downsizing which left only plaintiff and one other field engineer with KOM experience. According to the affidavit testimony of Mr. Shatzer and Mr. O'Brien, plaintiff was questioned about his current medical status so that Kodak could determine possible work options for plaintiff if he could not service the KOM equipment. Again, plaintiff argues that Dr. Brandes lifted plaintiff's medical restrictions only because he was asked to do so by plaintiff. As we have previously noted, however, the evidence establishes that plaintiff was specifically advised in writing that the only reason Kodak asked for an update of his medical status was to determine possible work options for him if he could not service KOM products. Also, plaintiff has offered nothing to contradict Nurse Davis's affidavit statement that she confirmed with Dr. Brandes, both verbally and in writing, that plaintiff needed no accommodation. After receipt of Mr. O'Brien's letter and Kodak's verification that Dr. Brandes's lifting of the medical restrictions was properly made, plaintiff did not seek to have the medical restrictions reinstated and continued working in the Columbus BIS division. *Page 492 We further find no genuine issue of material fact with regard to plaintiff's second contention, i.e., that he was terminated from his employment with Kodak based, in part, upon his handicap. In November 1996, after plaintiff's medical restrictions were lifted, he requested training to refamiliarize himself with the KOM equipment. Plaintiff was eventually informed that he had been scheduled to attend a seven-week training course in Rochester, New York; however, he refused to attend the training for reasons unrelated to his medical condition. While plaintiff argues that he was terminated as a result of his statement to Mr. Shatzer that plaintiff might have to have his medical restrictions reinstated, the evidence does not support such contention. Rather, the evidence establishes that plaintiff's reasons for refusing to attend the training were of a personal nature and that plaintiff was terminated because he refused to attend the training. During his deposition, plaintiff testified that he refused to attend the training because he did not want to miss any of his son's school activities and that his wife simply said he did not have to go. Both Mr. Shatzer and Mr. Hein corroborated plaintiff's deposition testimony. In addition, in his response to defendant's first set of interrogatories filed in the original complaint, plaintiff set forth the following seven reasons for refusing to attend the training: (1) The training was to be for seven weeks, instead of two or three days as plaintiff had anticipated. (2) He was informed of the training only two working days prior to the start date. (3) He did not think that he needed the entire seven-week training, as he had completed the same training previously. (4) Since requesting a refresher course, he had been working on the KOM equipment for two to three months and thus a refresher course was no longer necessary. (5) It made more sense to train additional personnel on the KOM equipment and not waste the class on someone who had already taken it. (6) His mother-in-law had recently moved into his house. (7) His son was graduating from high school and he did not want to miss his son's school activities. According to Mr. Shatzer's deposition testimony, after plaintiff informed Mr. Shatzer of his refusal to attend the training, Mr. Shatzer told plaintiff that such refusal could have serious consequences. When plaintiff again indicated that he would not attend the training, Mr. Shatzer told him he would contact him later to let him know what the consequences of the refusal would be. Mr. Shatzer did *Page 493 not tell plaintiff at that time that his refusal to attend the training would result in his termination because Mr. Shatzer did not have the authority to make such a decision on his own. Mr. Shatzer then telephoned Mr. O'Brien and informed him of the conversation he had had with plaintiff. According to Mr. Shatzer, he and Mr. O'Brien discussed the fact that plaintiff "was being insubordinate in refusing to do something that he was instructed to do" (Shatzer depo. at 137), and that the matter needed to be discussed further with personnel from the human resources department. Ultimately, Mr. Shatzer was informed that plaintiff was to be terminated for his refusal to attend the training. It is well-established that even a qualified handicapped person can be discharged for legitimate nondiscriminatory reasons. As explained by the Ohio Supreme Court in Hood v. Diamond Products (1996), 74 Ohio St.3d 298: "[l]egitimate, nondiscriminatory reasons for the action taken by an employer may include, but are not limited to, insubordination on the part of the employee claiming discrimination." Id. at 302. The evidence of record establishes that plaintiff was terminated from his position with Kodak for insubordination — a legitimate, nondiscriminatory reason under Hood, supra. For the foregoing reasons, we find that plaintiff has failed to demonstrate a genuine issue of material fact with regard to whether Kodak took adverse employment action against plaintiff based in part because plaintiff was handicapped. Finally, even assuming plaintiff has demonstrated genuine issues of material fact as to the first two prongs of a handicap discrimination claim, plaintiff must also establish that, in spite of his handicap, he can safely and substantially perform the essential functions of his former position with reasonable accommodations. Ohio Adm. Code 4112-5-02(A) defines "accommodation," as applied to employers, "as a reasonable adjustment made to a job and/or the work environment that enables a qualified disabled person to safely and substantially perform the duties of that position." A handicapped employee who claims that he is otherwise qualified with a reasonable accommodation "bears the initial burden of proposing an accommodation and showing that the accommodation is objectively reasonable." Darovich v. General Motors Corp. (Feb. 24, 2000), Cuyahoga App. No. 75859, unreported, quoting Cassidy v. Detroit Edison Co. (C.A.6, 1998),138 F.3d 629, 634. "Reasonable accommodations include but are not limited to job restructuring, acquisition or modification of equipment or devices, realignment of duties, revision of job descriptions or modified, part-time work schedules, transfer, reassignment or hire into vacant positions." Id., citing Wooten v. Columbus (1993),91 Ohio App.3d 326, 333, 632 N.E.2d 605. *Page 494 Once a handicapped employee has proposed an objectively reasonable accommodation, an employer is required to explore methods and alternatives to reasonably accommodate the disabled employee prior to taking adverse action against the employee. Darovich, supra. The burden then shifts to the employer to demonstrate that it cannot reasonably accommodate the handicapped employee due to undue hardship. Id. "An employer must make reasonable accommodation in the disability of an employee * * * unless the employer can demonstrate that such an accommodation would impose an undue hardship on the conduct of the employer's business." Ohio Adm. Code 4112-5-08(E)(1). An employer is not required to create a position or make work for a handicapped employee. Darovich, supra. In the trial court proceedings, Kodak maintained that, with respect to the training issue, plaintiff never requested any type of accommodation based upon his alleged handicap. The trial court determined initially that an issue of fact existed regarding whether plaintiff requested an accommodation when he: (1) requested to attend the KOM training for a shorter period of time; and (2) indicated that he may have to resume his medical restrictions. Having so found, the court further held that it must then be determined whether any requested accommodation was "related to Plaintiff's handicap and reasonable in nature." (1/24/01 decision and entry at 8.) The court concluded that plaintiff's request for a shorter training period was not related to his alleged handicap; however, the court found that plaintiff's suggestion that he might need to resume his medical restrictions was related to his alleged handicap. The trial court ultimately determined, however, that plaintiff's requested accommodation (that he be excused from working on the KOM equipment) was not objectively reasonable, as it would have imposed undue hardship on Kodak. We agree. Plaintiff contends that his request was reasonable since Kodak had provided the same accommodation for over two years after his initial illness. Kodak asserts that servicing KOM equipment was an essential function of the position of field engineer and that it had no duty to eliminate this function in order to accommodate plaintiff. Kodak further asserts that although it was able to provide plaintiff such accommodation for a period of time, subsequent personnel changes made it impossible to excuse plaintiff from servicing the KOM equipment without incurring undue hardship on Kodak. An employer is under no obligation to provide an accommodation that would eliminate an essential function of a job. Gilbert v. Frank (C.A.2, 1991), 949 F.2d 637, 642. Essential functions generally mean the fundamental duties of the position in question, not functions that are merely marginal. Mitchell v. Washingtonville Central School Dist. (C.A.2, 1999), 190 F.3d 1, 7. *Page 495 As previously noted, prior to plaintiff's illness, approximately six field engineers worked in the BIS division, three of whom, including plaintiff, were trained to work on the KOM equipment. In 1994, Kodak agreed to excuse plaintiff from servicing the KOM equipment in order to accommodate his health problems. Plaintiff was informed that business conditions at that time allowed Kodak to make such an accommodation, but that as those conditions changed, it might be necessary to train plaintiff on other product lines and/or adjust his working hours to better accommodate the restrictions. In the fall of 1996, Kodak laid off two of the field engineers with KOM equipment training. As a result, only plaintiff and one other field engineer remained trained to service the KOM equipment. It is thus clear that Kodak's personnel situation had changed dramatically from 1994 when it first provided plaintiff an accommodation. Plaintiff's own witness, Mr. Edward Murdock, attested by affidavit that Kodak was in "a bind needing people to work on Komstar." While servicing KOM equipment might not have been an essential function of his job when plaintiff first became ill, as there were other members of the BIS team who could perform that function, it clearly became an essential function of plaintiff's job after the layoffs in the fall of 1996. Plaintiff argues that the question of whether or not a function is "essential" is typically a question of fact for a jury. However, the case cited by plaintiff in support of this proposition, Brickers v. Cleveland Bd. of Educ. (C.A.6, 1998), 145 F.3d 846, actually illustrates that the question of "essentialness" may properly be a question of law for the court. Id. at 849. In Brickers, the Sixth Circuit Court of Appeals found as a matter of law that lifting was an essential function of a school bus attendant's position and that the plaintiff, who claimed that she was unable to lift, therefore failed to make out a prima facie case of handicap discrimination. Further, we agree with the trial court that under the circumstances presented, no rational trier of fact could find that servicing the KOM equipment was not an essential function of plaintiff's job in 1996. Thus, plainitff's proposed accommodation was not objectively reasonable given the situation in Kodak's Columbus BIS division in October 1996. Finally, we note that the burden was upon plaintiff to propose an objectively reasonable accommodation to Kodak, rather than upon Kodak to proffer one to him. Cassidy, supra. The record demonstrates that plaintiff proposed no other accommodation, such as transfer to a vacant position.Accordingly, this court finds that plaintiff has failed to establish a genuine issue of material fact as to whether, in spite of his handicap, he could safely and substantially perform the essential functions of field engineer with reasonable accommodations. For all the foregoing reasons, this court finds that plaintiff has failed to set forth a prima facie case of handicap discrimination. Accordingly, the trial *Page 496 court did not err in granting summary judgment in favor of defendants. Plaintiff's two assignments of error are therefore overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. DESHLER and BROWN, JJ., concur. 1 Kodak used the acronym "KOM" to identify "computer output microfilmers" — the "K" to signify "Kodak." 2 Initially, servicing of the Apple product line fell within Kodak's BIS Division; however, in April or May 1996, servicing of the Apple product line was merged into the New Products Division. 3 Ohio's anti-discrimination statutes were amended on March 17, 2000, to refer to "disability" rather than "handicap." At the time the instant case arose, the statutes utilized the term "handicap." 4 The record establishes that the March 1997 training for which plaintiff was scheduled was a seven-week, not nine-week course.

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OPINION On December 15, 2000, Jane Withem, now known as Jane Glass, filed a complaint in the Franklin County Court of Common Pleas against Cincinnati Insurance Co. ("Cincinnati"). Ms. Glass had been in an automobile collision on July 8, 1996 and suffered serious injury, including a near amputation of her right hand. On April 11, 1997, the tortfeasor's insurance carrier paid Ms. Glass $12,500, the limit of liability, in exchange for the release of the tortfeasor. In June 1997, Ms. Glass was paid $87,500 under the underinsured motorists ("UIM") provision of her father's policy in exchange for the release of any claims arising under such policy. In February 2000, Ms. Glass made a claim with Cincinnati for UIM benefits. Cincinnati had issued a commercial automobile liability policy to National Meter Parts, Inc. ("National Meter") which contained UIM coverage. Ms. Glass's mother had been employed by National Meter at the time of the collision. Ms. Glass averred that she was an insured under her mother's employer's commercial automobile liability policy pursuant to Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660 and Ezawa v. Yasuda Fire Marine Ins. Co. of Am. (1999), 86 Ohio St.3d 557. The complaint averred that Ms. Glass had presented a claim to Cincinnati and that Cincinnati had failed to make an offer of settlement and/or acknowledge the legitimacy of her claim. Ms. Glass sought, among other things, compensation under the National Meter policy. Cincinnati filed an answer, asserting as a defense that Ms. Glass had failed to comply with conditions precedent to coverage under the policy. The parties filed motions for summary judgment. On October 11, 2001, the trial court rendered a decision and entry granting summary judgment in favor of Cincinnati. The trial court found, in essence, that Ms. Glass's settlement with the tortfeasor destroyed Cincinnati's subrogation rights and, therefore, Cincinnati was not obligated to provide UIM coverage to Ms. Glass. Ms. Glass (hereinafter "appellant") has appealed to this court, a ssigning a single error for our consideration: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN OVERRULING PLAINTIFF-APPELLANT'S MOTION FOR SUMMARY JUDGMENT AND IN SUSTAINING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT * * * ON THE GROUNDS THAT PLAINTIFF-APPELLANT'S PRIOR SETTLEMENT WITH THE TORTFEASOR DESTROYED THE PURPORTED SUBROGATION RIGHTS OF DEFENDANT-APPELLEE, THEREBY DISCHARGING DEFENDANT-APPELL[EE] FROM ANY OBLIGATION TO PROVIDE UNDERINSURED MOTORIST COVERAGE, BASED UPON THE REASONING OF THIS COURT IN Beverly Howard et al. vs. State Auto Mutual Insurance Company et al., (Unreported), Case No. 99AP-577, Tenth District Court of Appeals, Decided March 14, 2000. Summary judgment is appropriate when, construing the evidence most strongly in favor of the nonmoving party, (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, that conclusion being adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370, citing Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, paragraph three of the syllabus. Our review of the appropriateness of summary judgment is de novo. See Andersen v. Highland House Co. (2001), 93 Ohio St.3d 547,548. The material facts in the case at bar are not in dispute. Rather, the instant appeal involves only a question of law, namely, whether appellant's settlement with the tortfeasor discharged the obligation of Cincinnati (hereinafter "appellee") under the commercial automobile policy to provide UIM coverage to appellant. We note that in light of Scott-Pontzer and Ezawa, appellee does not seriously dispute that appellant was an insured under the policy. Rather, appellee asserts that it was discharged from providing UIM coverage to appellant because appellant settled with the tortfeasor and thereby destroyed appellee's subrogation rights. Appellee contends that the case of Bogan v. Progressive Cas. Ins. Co. (1988), 36 Ohio St.3d 22, partially overruled on other grounds in Fulmer v. Insura Prop. Cas. Co. (2002), 94 Ohio St.3d 85, supports its argument. Bogan held: Based upon the established common law and further strengthened by the specific statutory provision, R.C. 3937.18, a subrogation clause is reasonably includable in contracts providing underinsured motorist insurance. Such a clause is therefore both a valid and enforceable precondition to the duty to provide underinsured motorist coverage. Id. at paragraph four of the syllabus.1 In contrast, appellant asserts this court's decision in Howard v. State Auto Mut. Ins. Co. (2000), Franklin App. No. 99AP-577 is dispositive of the issues herein. Howard involved essentially the same fact pattern presented here. The insureds signed a release discharging the tortfeasor and her insurer from all liability in exchange for $98,000. They then sought UIM coverage under their policies. The trial court determined that the plaintiffs were precluded from recovering UIM benefits because they had failed to notify and obtain the consent of their insurance companies prior to settling with the tortfeasor and the tortfeasor's insurer. This court reversed on the basis that the policy language was ambiguous. Construing the language in favor of the insureds, we held that consent was not necessary and that the plaintiffs were not excluded from UIM coverage. The policy language at issue in Howard was as follows: "A. We do not provide Uninsured/Underinsured Motorists Coverage for bodily injury sustained by any person: * * * 2. If that person or the legal representative settles the bodily injury claim without our consent. This exclusion * * * does not apply to a settlement made with the insurer of a[n underinsured] vehicle * * *.2 * * * [Paragraph (C)(3)] A person seeking Uninsured/Underinsured Motorist Coverage must also: * * * 3. Promptly notify us in writing of a tentative settlement between the Insured and the insurer of a vehicle described in Section 2. of the definition of uninsured/underinsured motor vehicle and allow us 30 days to advance payment to that Insured in an amount equal to the tentative settlement to preserve our rights against the insurer, owner or operator of such uninsured/underinsured motor vehicle." We stated that the language in paragraphs (A)(2) and (C)(3), although the former dealt with consent and the latter dealt with notification, was contradictory and confusing. Therefore, we held that consent to settle was not necessary, and the plaintiffs were not precluded from recovering under the UIM provision. The policy language at issue here is almost identical. The policy provisions in the case at bar state: A. COVERAGE 1. We will pay all sums the "insured" is legally entitled to recover * * * from the owner or driver of an "un[der]insured motor vehicle" * * *. * * * C. EXCLUSIONS This insurance does not apply to: 1. Any claim settled without our consent. However, this exclusion does not apply to a settlement made with the insurer of a[n underinsured] vehicle * * *. * * * E. CHANGES IN CONDITIONS The CONDITIONS of the policy for OHIO UNINSURED MOTORISTS INSURANCE are changed as follows: * * * 2. DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT OR LOSS is changed by adding the following: * * * c. A person seeking Un[der]insured Motorists Coverage must also promptly notify us in writing of a tentative settlement between the "insured" and the insurer of the [underinsured] vehicle * * * and allow us 30 days to advance payment to that insured in an amount equal to the tentative settlement to preserve our rights against the insurer, owner or operator of such vehicle * * *. 3. TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US is amended by adding the following: If we make any payment and the "insured" recovers from another party, the "insured" shall hold the proceeds in trust for us and pay us back the amount we have paid. Our rights do not apply under this provision with respect to Un[der]insured Motorists Coverage if we: a. Have been given prompt written notice of a tentative settlement between an "insured" and the insurer of a[n underinsured] vehicle * * *, and b. Fail to advance payment to the "insured" in an amount equal to the tentative settlement within 30 days after receipt of notification. As in Howard, the provisions above indicate that consent prior to settlement is unnecessary when an underinsured vehicle is involved but that notice of a tentative settlement is required. Hence, we could find, consistent with Howard, that the provisions here are ambiguous, confusing and/or misleading and, therefore, appellant was not required to give notice of the impending settlement with the tortfeasor's insurer. However, very recently this court rendered a decision that is dispositive of the matter before us. In Alatsis v. Nationwide Ins. Ent., Franklin App. No. 01AP-1038, 2002-Ohio-2906, this court dealt with a very similar fact pattern and addressed essentially the same issues that are raised herein. In Alatsis, the insured was injured in a 1995 automobile collision. Id. at ¶ 2. The insured settled with the tortfeasor and released the tortfeasor from any further liability. Id. Subsequently, the insured filed an action against her employer's insurance carrier under a commercial automobile liability policy, seeking a declaration as to the availability of UIM coverage thereunder. Id. at ¶ 3. The trial court found the insured was not entitled to coverage. On appeal, Nationwide argued that the insured was not entitled to recover under the policy because she had failed to provide prompt notice to Nationwide and, instead, settled with the tortfeasor, thereby prejudicing Nationwide's subrogation rights. Id. at ¶ 12. The insured asserted that under Howard, she had no contractual obligation to notify Nationwide prior to settling. Id. at ¶ 12-13. However, this court held that the case before it was distinguishable from Howard as the policy at issue contained additional language addressing Nationwide's subrogation rights. Such language stated: "If any person or organization to or for whom we make payment under this Coverage Form has rights to recover damages from another, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after `accident' or `loss' to impair them." Id. at ¶ 14-15. Citing Bogan at paragraph four of the syllabus and its progeny, we concluded that the insured, in releasing the tortfeasor from liability, had failed to secure Nationwide's rights as required in the subrogation clause, thereby materially prejudicing Nationwide's subrogation rights; therefore, Nationwide was under no obligation to provide coverage under the policy. Alatsis at ¶ 16-20, 25. Hence, any potentially confusing and/or ambiguous language regarding consent and notice did not inure to the insured's benefit as the subrogation clause independently obligated the insured to do everything necessary to secure Nationwide's rights, including not releasing the tortfeasor from liability. The policy at issue here contains the exact same subrogation clause at issue in Alatsis. See policy at Section IV. A. 5.3 Because the issues and policy provisions in the case at bar are virtually identical to the those in Alatsis, we feel compelled to follow this most recent precedent, at the very least for consistency purposes. This issue may very well be finally determined by the Supreme Court in the near future.4 Until then, we follow this court's recent decision in Alatsis dealing specifically with the subrogation issue. Hence, we find that summary judgment in favor of appellee was appropriate as appellant materially prejudiced appellee's subrogation rights by settling with the tortfeasor and releasing him from liability. Therefore, appellee was not obligated to provide UIM coverage to appellant under its commercial automobile liability policy. Accordingly, appellant's sole assignment of error is overruled. Having overruled appellant's sole assignment of error, the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. DESHLER and PETREE, JJ., concur. 1 We note that while certain portions of Bogan have been overruled, modified and/or clarified in Fulmer and in McDonald v. Republic-Franklin Ins. Co. (1989), 45 Ohio St.3d 27, paragraph four of the syllabus of Bogan was reaffirmed in McDonald at 29 and, indeed, remains good law. 2 For certain reasons, the tortfeasor's automobile would not have been considered an underinsured vehicle. Thus, consent would have been necessary in Howard. 3 We note that this clause is not the only provision in the policy that could arguably constitute a subrogation clause. 4 Indeed, the Supreme Court recently allowed an appeal from a decision of the Eleventh District Court of Appeals which involves very similar issues. Ferrando v. Auto-Owners Mut. Ins. Co. (2002),94 Ohio St.3d 1451.

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DECISION. Petitioner-appellant Joseph Elliott has taken the instant appeal from the judgment of the common pleas court denying his second petition for postconviction relief. On appeal, he presents two assignments of error, in which he challenges the court's application of the doctrine of res judicata to deny his postconviction claims and its failure to make findings of fact and conclusions of law. Upon our determination that the court was without jurisdiction to entertain the petition, we affirm the judgment of the court below. Elliott was convicted in January of 1996 on two counts of rape and two counts of aggravated burglary. We affirmed the judgment of conviction in December of that year, see State v. Elliott (Dec. 24, 1996), 1st Dist. No. C-960072, and the Supreme Court of Ohio denied Elliott leave to file a delayed appeal. See State v. Elliott (1999), 87 Ohio St.3d 1442,719 N.E.2d 5. On November 6, 1996, before the release of our decision in his direct appeal, Elliott filed a motion by which he sought the release of evidence for DNA analysis. In his motion, he alleged the following: One of the most important aspects of the State's case was evidence concerning [three] blood stains on the nightgown of the victim. [Two] of these spots were tested by Cellmark labs and subjected to DNA analysis. The analysis excluded [Elliott as a source of the blood]. A third spot was only blood typed [by the Hamilton County Coroner's office]. [Elliott] could not be excluded [as a source of the blood] by that [blood-typing] analysis. DNA testing was never requested to be conducted [on the third spot]. * * * During the trial the prosecution relied heavily on the inference to be drawn from the failure [of the blood-typing analysis conducted on the third spot] to exclude [Elliott as a source of the blood] * * *. Thus, Elliott sought the release for DNA testing of that portion of the victim's nightgown containing the third of the three bloodstains. He also filed on that date a petition for postconviction relief, in which he challenged, inter alia, his counsel's effectiveness in dealing with the bloodstain evidence at trial. On December 12, 1996, the common pleas court denied both the motion for DNA testing and the petition for postconviction relief. In March of 1997, Elliott again moved for the release of evidence to facilitate DNA testing of the third bloodstain. The common pleas court granted the motion. On January 12, 2001, three and one-half years after the court had ordered the evidence released, Elliott filed, pursuant to Crim.R. 33, an "Application for [an] Order Allowing [a] Motion for New Trial." Elliott asserted in his "[a]pplication," and offered evidentiary material to show, that he had been diligent in obtaining DNA testing "as soon as it [had been] economically feasible," and that DNA testing of the third bloodstain had excluded him as the source of the blood. He thus sought a hearing to establish that he had been unavoidably prevented from discovering the evidence upon which his new-trial motion depended and an order allowing him to file a motion for a new trial on the basis of this new evidence. On January 17, the common pleas court, without elaboration, placed of record its "Entry Overruling [the] Motion for New Trial." Elliott did not appeal the court's "Entry Overruling [the] Motion for New Trial," but instead moved on February 8, 2001, for "[r]econsideration and [c]larification" of the entry. The court did not rule upon this motion. Finally, on May 23, 2001, Elliott filed the "[m]otion" from which the instant appeal derives, by which he sought, pursuant to R.C. 2953.21, an "Evidentiary Hearing to Present * * * DNA Test Results." The common pleas court deemed the "motion" a petition for postconviction relief and denied the petition on two (seemingly contradictory) grounds: The court concluded that the claim presented a matter that was or could have been raised at trial or on direct appeal and was thus barred under the doctrine of res judicata, and that it constituted a claim of actual innocence based on newly discovered evidence and was thus not cognizable in a proceeding under R.C. 2953.21. In his first assignment of error, Elliott asserts that the common pleas court erred in dismissing his postconviction petition without findings of fact and conclusions of law. This challenge is untenable. R.C. 2953.21(G) requires the common pleas court to journalize its findings of fact and conclusions of law when it denies a petition for postconviction relief. But the court's disposition of a tardy or successive petition need not include findings of fact and conclusions of law if the court is without jurisdiction to address the petition. SeeState ex rel. Carroll v. Corrigan (1999), 84 Ohio St.3d 529,705 N.E.2d 1330; State v. Byrd (2001), 145 Ohio St.3d 318, 762 N.E.2d 1043. Elliott's May 2001 "[m]otion" seeking, pursuant to R.C. 2953.21, an evidentiary hearing to present the DNA test results, constituted both a tardy and a successive petition for postconviction relief. R.C. 2953.23 closely circumscribes the jurisdiction of a common pleas court to entertain a tardy or successive petition: The petitioner must show either that he was unavoidably prevented from discovering the facts upon which his petition depends, or that his claim is predicated upon a new or retrospectively applicable federal or state right recognized by the United States Supreme Court since the expiration of the time prescribed in R.C. 2953.21(A)(2) or since the filing of his last petition; and he must show "by clear and convincing evidence that, but for constitutionalerror at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted * * *." (Emphasis added.) In support of his postconviction claim, Elliott asserted that the results from the DNA test conducted on the third bloodstain were obtained through the use of technology that had not been available at the time of his trial, and that this "newly discovered" evidence demonstrated his innocence of the offenses of which he was convicted. This claim of actual innocence based on newly discovered evidence did not demonstrate a constitutional violation in the proceedings resulting in his conviction. See State v. Powell (1993), 90 Ohio App.3d 260, 264, 629 N.E.2d 13. Therefore, we conclude that the common pleas court had no jurisdiction to entertain the claim as it was presented in Elliott's postconviction petition. Having so concluded, we note, parenthetically, that the proper vehicle for asserting a claim of actual innocence based on newly discovered evidence is a Civ.R. 33 motion for a new trial. See Byrd,145 Ohio App.3d at 330-331, 762 N.E.2d 1043. Elliott attempted to pursue this course when, on January 12, 2001, he sought, by way of his "Application for [an] Order Allowing [a] Motion for New Trial," a hearing to establish that he had been unavoidably prevented from discovering the evidence upon which his new-trial motion depended and an order allowing him to file a motion for a new trial on the basis of that new evidence. But Elliott's failure to perfect a timely appeal from the common pleas court's January 17, 2001, "Entry Overruling [the] Motion for New Trial" precluded this court from reviewing the entry. This default, while injurious, is not fatal to this claim. Appellate review might still be secured by the filing of a motion, pursuant to App.R. 5(A), requesting leave to file a delayed appeal. Nevertheless, as to the challenge advanced in the first assignment of error, our conclusion here, that the common pleas court had no jurisdiction to entertain upon his tardy and successive petition Elliott's claim of actual innocence based on newly discovered evidence, compels us to hold that the court below had no obligation to journalize findings of fact and conclusions of law. Accordingly, we overrule the first assignment of error. In his second assignment of error, Elliott challenges the court's application of the doctrine of res judicata to deny his postconviction claims. As we determined supra, R.C. 2953.23 did not operate to confer upon the court below jurisdiction to entertain Elliott's claim of actual innocence based on newly discovered evidence advanced in his tardy and successive petition. The conclusion implicit in this determination, that Elliott's petition was subject to dismissal for lack of jurisdiction, renders moot the challenge advanced in his second assignment of error. We, therefore, do not reach the merits of that challenge. Accordingly, we affirm the judgment of the court below. Judgment affirmed. Doan, P.J., Gorman and Sundermann, JJ. Please Note: The court has placed of record its own entry in this case on the date of the release of this Decision.

2016-07-06 06:42:01.772611+00

MEMORANDUM DECISION Andrew G. Zukowski, appellant, appeals a February 11, 1999 judgment of the Franklin County Court of Common Pleas dismissing his appeal because there had not been a final appealable order determining whether appellant may receive Medicaid or food stamps. On May 23, 1997, appellant applied for food stamps and Medicaid through the Franklin County Department of Human Services ("the Agency"). The Agency denied the application for failure to cooperate, and appellant appealed this denial and requested a state hearing. On July 14, 1997, a state hearing officer recommended that all appeals be sustained and that the Agency reopen the May 23, 1997 application. Appellant's application was denied again by the Agency because the motor vehicles owned by appellant exceeded the resource limit for food stamps and Medicaid benefits. Appellant appealed the denial and requested a state hearing. On July 31, 1997, a state hearing officer affirmed the Agency's determination, finding that appellant's total resources from one vehicle alone exceeded the resource requirements for any public assistance for food stamps or Medicaid. Appellant then filed an administrative appeal with the Ohio Department of Human Services ("ODHS"), appellee. On August 21, 1997, ODHS vacated and remanded the state hearing officer's decision to provide a supplemental hearing on the food stamp and Medicaid eligibility issues, finding that Ohio Adm. Code 5101:4-4-07 exempts certain vehicles from consideration as resources, but the state hearing officer failed to address whether appellant's vehicles were within any of these exemptions. On September 22, 1997, appellant appealed ODHS's decision to the Franklin County Court of Common Pleas. On April 29, 1998, the trial court affirmed the decision of ODHS and dismissed appellant's appeal because there had not been a final appealable order or decision as to whether he was entitled to food stamps or Medicaid. The court noted that the order appealed from had remanded the matter back for further testimony and findings so that an administrative decision could be made. On February 11, 1999, a judgment was filed journalizing the April 29, 1998 trial court decision. Appellant appeals the trial court court's judgment. For the purposes of his appeal before this court, appellant is proceeding pro se. Appellant presents no assignments of error. Appellant has clearly failed to comply with App.R. 12(A)(2) and 16(A)(2), (3), (4) and (6). However, in the interest of justice, we shall review the trial court's decision. In an appeal from an administrative order, a reviewing trial court is bound to uphold the order if it is supported by reliable, probative, and substantial evidence, and is in accordance with law. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619,621; R.C. 119.12. Reliable, probative and substantial evidence has been defined as follows: * * * (1) "Reliable" evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true. (2) "Probative" evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue. (3) "Substantial" evidence is evidence with some weight; it must have importance and value. Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570,571, fns. omitted. However, an appellate court's review is even more limited than that of the trial court. Pons, at 621. While it is incumbent on the trial court to examine the evidence, the appellate court is to determine only if the trial court abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Id. Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for those of the administrative agency or a trial court.Id. Instead, the appellate court must affirm the trial court's judgment. Id. After reviewing the record and the decision of the trial court to dismiss appellant's appeal, we find that the trial court did not err in finding that ODHS's decision was not a final appealable order. The order in question did not prevent a judgment or determine the action and did not affect the right of appellant to receive Medicaid or food stamps. See R.C. 2505.02. ODHS's order remanded the matter back to the state hearing officer for a supplemental hearing on whether appellant is entitled to Medicaid or food stamps. Once the state hearing examiner files a decision upon remand, if appellant is not satisfied with such decision, he may continue the proper appellate process at the time. Accordingly, we find that the court did not err in concluding that it was without jurisdiction because the order appealed from was not a final appealable order. The judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. BRYANT and TYACK, JJ., concur.

2016-07-06 06:42:01.79817+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellant, Alexander Ristich, appeals the decision of the Summit County Court of Common Pleas, which found him guilty of two counts of rape. This Court affirms. I. {¶ 2} Appellant was married to Michael Bowman's great-grandmother. Although not related by blood, Michael considered the appellant his grandfather. When Michael was between the ages of 5 and 6 years old, he spent a great deal of time at appellant's home. {¶ 3} In March of 2001, at the age of eleven, Michael sexually abused his younger brother. During the investigation of this incident, Michael told his stepfather and Annette Lucarelli, an intake social worker at Summit County Children Services, that appellant had inserted his penis into his butt. Ms. Lucarelli contacted the police. Michael was sent to a boys' farm for 17 months. During his treatment at the boys' farm, Michael told his counselor that appellant had given him baths during which appellant stroked Michael's genital areas. Michael also indicated that appellant had anally penetrated him while the two were in the shower. {¶ 4} Appellant was indicted by the Summit County Grand Jury for two counts of rape of a child less than thirteen, violations of R.C. 2907.02(A)(1); and two counts of gross sexual imposition, violations of R.C. 2907.05(A)(4). Appellant pled not guilty, and the matter was set for a jury trial. {¶ 5} Prior to the trial, the prosecution informed the defense that it intended to introduce evidence of similar acts at the trial. Defense counsel objected to the introduction of evidence of similar acts. On December 19, 2001, a hearing was held on the admissibility of the evidence of similar acts. The sole witness at the hearing was Jennifer Stackpole. Ms. Stackpole testified that the appellant had sexually molested her when she was between the ages of 5 and 10 years old, and penetrated her vagina on one occasion when she was approximately ten years old. At the time of the hearing, Ms. Stackpole was twenty-eight years old. The trial court ruled that the similar acts testimony of Ms. Stackpole would be admitted at trial. {¶ 6} At the initial trial, the jury was unable to reach a verdict and a mistrial was declared. A second jury trial was held and defendant was found guilty of all charges. The trial court sentenced appellant to a term of imprisonment of 5 to 25 years on each rape conviction and a term of imprisonment of two years on each conviction of gross sexual imposition. The court ordered that the sentences on all counts be served concurrently. On July 23, 2003, appellant was re-sentenced as to the charge of rape. Due to the fact that the jury found appellant guilty of rape of a minor under the age of thirteen and further found that force was used, pursuant to R.C. 2907.02(B), the trial court sentenced appellant to life imprisonment on the charge of rape as contained in counts one and two of supplement one to the indictment. {¶ 7} Appellant timely appealed and asserts error solely in relation to his rape convictions. II. ASSIGNMENT OF ERROR "The trial court committed reversible error by permitting the similar acts testimony of jennifer stackpole." {¶ 8} In his sole assignment of error, appellant argues that the court erred in permitting the testimony of Jennifer Stackpole. {¶ 9} A trial court possesses broad discretion with respect to the admission of evidence. State v. Ditzler (Mar. 28, 2001), 9th Dist. No. 00CA007604, citing State v. Maurer (1984),15 Ohio St.3d 239, 265. An appellate court will not overturn the decision of a trial court regarding the admission or exclusion of evidence absent a clear abuse that has materially prejudiced the defendant. Ditzler, supra; see, also, State v. Ali, 9th Dist. No. 18841. 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. Ohio StateMed. Bd. (1993), 66 Ohio St.3d 619, 621, 1993-Ohio-122. When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Id. {¶ 10} Generally, evidence of prior criminal acts completely independent of the crime for which a defendant is being tried, is inadmissible. State v. Wilkins (1999), 135 Ohio App.3d 26, 29, citing State v. Thompson (1981), 66 Ohio St.2d 496, 497. However, an exception to this general rule exists, as provided for in R.C. 2945.59 and Evid.R. 404(B). Ali, supra. Evid. R. 404(B) provides that evidence of such crimes, wrongs or acts may be admissible for purposes other than proving the conformity of an accused with a certain character trait during the incident in question. Specifically, Evid.R. 404(B) provides the following: "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 otherpurposes, such as proof of motive, opportunity, intent,preparation, plan, knowledge, identity, or absence of mistake oraccident." (Emphasis added.) {¶ 11} R.C. 2945.59 provides: "In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior orsubsequent thereto, notwithstanding that such proof may show ortend to show the commission of another crime by the defendant." (Emphasis added.) {¶ 12} The statute and rule must be read in harmony with each other. Ali, supra, citing State v. Broom (1988),40 Ohio St.3d 277, 281. Because R.C. 2945.59 and Evid.R. 404(B) codify an exception to the common law regarding evidence of other acts, the standard for determining admissibility of such evidence is strict, and the statute section and rule must be construed against admissibility. Ali, supra, citing Broom, 40 Ohio St.3d at paragraph one of the syllabus. However, this strict admissibility standard must be considered contemporaneously with the fact that the trial court "occupies a `superior vantage' in determining the admissibility of evidence." Ali, supra, citingState v. Rutledge (Nov. 19, 1997), 9th Dist. No. 96CA006619. {¶ 13} The Supreme Court of Ohio has articulated two requirements for the admission of other acts evidence. Broom,40 Ohio St.3d at 282-83. First, substantial evidence must prove that the other acts were committed by the defendant as opposed to another person. Id. Second, the other acts evidence must fall within one of the theories of admissibility enumerated in Evid.R. 404(B). Id. See, also, State v. Lowe (1994), 69 Ohio St.3d 527,530, 1994-Ohio-345. {¶ 14} Proof of one of the purposes set forth in Evid.R. 404(B) must go to an issue which is material in proving the defendant's guilt for the crime at issue. State v. DePina (1984), 21 Ohio App.3d 91, 92, citing State v. Burson (1974),38 Ohio St.2d 157, 158. {¶ 15} The Supreme Court of Ohio has held that evidence of other acts may be admitted into evidence when the evidence of other acts establishes a modus operandi, a "`unique, identifiable plan of criminal activity[,]'" that is applicable to the crime with which defendant is charged. Lowe, 69 Ohio St.3d at 531, quoting State v. Jamison (1990), 49 Ohio St.3d 182, syllabus. A certain modus operandi provides a "behavioral fingerprint which, when compared to the behavioral fingerprints associated with the crime in question, can be used to identify the defendant as the perpetrator." Lowe, 69 Ohio St.3d at 531. {¶ 16} In order to prove identity through a modus operandi, other acts evidence must be related to and share common features with the offense at issue. Id. When such evidence establishes an idiosyncratic pattern of criminal conduct, it is not necessary for the offense at issue to be near in time and place to the other acts introduced into evidence; "the probative value of such conduct lies in its peculiar character rather than its proximity to the event at issue." DePina, 21 Ohio App.3d at 92; see, also, State v. Lillie, 9th Dist. No. 15359. Furthermore, these other acts need not be the same or even similar to the offense in question, as long as they indicate a modus operandi attributable to the defendant. Lowe, 69 Ohio St.3d at 531, citing State v.Hutton (1990), 53 Ohio St.3d 36, 40. {¶ 17} Appellant argues that the admission of Ms. Stackpole's testimony was a violation of Evid.R. 404(B) because it was admitted to show appellant's disposition to commit a crime rather than to establish appellant's modus operandi. Appellant argues that the acts described in Ms. Stackpole's testimony were not similar enough to prove appellant's modus operandi because Ms. Stackpole's testimony involved acts that took place approximately 11-16 years before the underlying acts that led to this appeal. In addition, appellant argues that the acts Ms. Stackpole testified to are not similar enough to the acts in the present case to prove appellant's modus operandi because Ms. Stackpole and Michael are not the same gender, the activity occurred at different locations, and different forms of rape were alleged by the victims. {¶ 18} The State argues that Ms. Stackpole's testimony was properly allowed into evidence because it showed a distinct pattern of sexual conduct on behalf of appellant. {¶ 19} After reviewing the record, this Court finds that the testimony of Ms. Stackpole regarding appellant's prior sexual acts with her satisfies the Supreme Court's two prong test governing other acts evidence. See Broom,40 Ohio St.3d at 282-83. First, in her testimony, Ms. Stackpole identifies appellant as the person who committed unlawful sex acts against her as a child similar to the ones committed by appellant against the victim in the present case. See id. As to the second prong, the prior acts that Ms. Stackpole testified to prove a modus operandi applicable to appellant. See Lowe,69 Ohio St.3d at 531; see, also, R.C. 2945.59 and Evid.R. 404(B). {¶ 20} Michael Bowman testified on behalf of the State. Michael testified that between the ages of three and eight years old, he spent approximately three out of every four weekends at appellant's home. Michael testified that appellant bought him gifts, took him out to restaurants, and took him fishing. Michael testified that appellant told him that he was his favorite grandson and he loved him the most. Michael testified that when he was in grade school, appellant would visit him during lunch two to three times a week and bring him food from McDonald's. Michael testified that appellant told him that he loved Michael more than his parents did. Michael testified that between the ages of three and five years old, appellant would give him a bath when he spent the night at appellant's home. Michael testified that appellant anally penetrated him on at least two different occasions when they were taking a shower together. Michael further testified that while giving him a bath, appellant would stroke his penis in a sexual manner. Michael testified that when appellant molested him, he told him that that was how they showed their love for each other. Michael testified that after appellant molested him, appellant would take him shopping and get Michael almost anything he wanted. Michael testified that appellant would also tell Michael that he was his favorite after molesting him. Michael testified that appellant is his grandpa.1 {¶ 21} Jennifer Stackpole also testified on behalf of the State. Ms. Stackpole testified that the first memory she has of appellant sexually molesting her occurred when she was approximately five years old. Ms. Stackpole testified that appellant continued to molest her sexually until she was approximately ten years old. Ms. Stackpole testified that many of the incidents took place at appellant's home. Ms. Stackpole testified that she considered appellant her grandfather because he was married to her grandmother. {¶ 22} Ms. Stackpole testified that appellant first molested her in her grandmother's bed when she was approximately five years old. The next incident Ms. Stackpole testified regarding was appellant's molesting her while giving her a bath. Ms. Stackpole testified that appellant would give her a bath every time she spent the night at his house. Ms. Stackpole testified that appellant would stick his finger in her anus and her vagina as he was bathing her. Ms. Stackpole testified that when she asked appellant why he was touching her in that manner, appellant told her that he was just showing her how much he loved her. Ms. Stackpole testified that appellant continued to molest her in various ways almost every time he saw her until she was approximately ten years old. In her testimony regarding specific incidents where appellant sexually molested her, Ms. Stackpole testified that appellant would characterize the sex acts as ways that they expressed their love to each other. Ms. Stackpole testified that appellant made her feel that he was the only one who loved her. Ms. Stackpole further testified that appellant repeatedly called her "his special little girl" and bought her presents. {¶ 23} Ms. Stackpole testified that when she was approximately ten years old, appellant vaginally raped her during a family holiday outing. Ms. Stackpole testified that she reported the rape to her mother immediately after it happened. {¶ 24} The evidence of these other acts clearly demonstrates a unique, identifiable plan of criminal activity that is applicable to appellant with respect to the incident in the present case. See Lowe, 69 Ohio St.3d at 531, quotingJamison, 49 Ohio St.3d at syllabus. Both Ms. Stackpole and Michael thought of appellant as their grandfather. Appellant told each of them that they were his favorite grandchild. Appellant lavished both victims with gifts. Appellant digitally penetrated Ms. Stackpole in the bathtub while bathing her, and he anally penetrated Michael while showering with him. Appellant convinced the victims that sexual activity was a way to express your love for another individual. Appellant suggests that these other acts are too far removed in time and are not similar to the incident in question. However, the fact that these incidents with Ms. Stackpole occurred 11-16 years before the incidents in the case sub judice, has no bearing on the admissibility of this evidence. The fact patterns presented by the other acts evidence are similar to the facts of the instant case, and establish a peculiar and unique pattern of activity. See State v. McAdory, 9th Dist. No. 21454, 2004-Ohio-1234 at ¶ 28; See, also, DePina,21 Ohio App.3d at 92. {¶ 25} Based upon the foregoing, this Court finds that the testimony of Ms. Stackpole regarding evidence of other acts was properly admitted as probative of the factors articulated in R.C.2945.59 and Evid.R. 404(B). Therefore, this Court cannot conclude that the trial court abused its discretion in admitting Ms. Stackpole's testimony. Accordingly, appellant's assignment of error is overruled. III. {¶ 26} 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 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. Exceptions. Batchelder, J., Whitmore, J., concur. 1 This Court notes that appellant was actually Michael's great grandfather.

2016-07-06 06:42:01.858284+00

JOURNAL ENTRY AND OPINION {¶ 1} Plaintiff-appellant, Caryn Groedel ("Groedel"), appeals the Shaker Heights Municipal Court's granting of judgment in favor of defendant-appellee, Kenneth Arsham, M.D. ("Arsham"). Finding no merit to the appeal, we affirm. {¶ 2} On June 14, 2004, Groedel entered into a contract with Arsham for a surgical procedure to be performed on July 2, 2004. Groedel was required to pay the surgical fee of $3,250 in advance. Under the agreement, if Groedel cancelled her surgery between seven and fourteen days before the scheduled date, she would be assessed one-half of the fee or $1,625. In addition, if she cancelled the procedure with less than one week's notice, she would be charged the full fee of $3,250. She did not pay the fee in advance, but nonetheless the surgery was scheduled. {¶ 3} Groedel maintains that on June 17, 2004 she called Arsham's office to cancel her July 2, 2004 appointment. Arsham contends that it was not cancelled until June 24, 2004. A notarized statement from his answering service indicates that *Page 2 the only call received from Groedel was on June 24, 2004 to reschedule the surgery. There is no dispute that on June 24, 2004, she spoke with an assistant at Arsham's office to reschedule her procedure for August 13, 2004. At that time, Groedel claims that she gave Arsham's office her credit card information for the rescheduled appointment.1 However, Groedel maintains that Arsham's office still charged her credit card $3,250 for the July 2, 2004 surgery, even though she cancelled it on June 17, 2004. Arsham later reimbursed Groedel $1,625 (one-half of $3,250) because she cancelled her procedure eight days prior to the surgery date. {¶ 4} In June 2005, Groedel filed suit against Arsham, alleging that he breached the contract when he refused to give her a full refund of $3,250. The trial judge issued a verdict in favor of Arsham, finding that Groedel voluntarily signed the contract with full knowledge of the cancellation and refund policy. {¶ 5} Groedel appeals, raising one assignment of error, in which she claims that the trial court erred in granting judgment in favor of Arsham. She argues that she has provided sufficient evidence to establish that the cancellation and refund policy was a penalty clause and not a clause providing for liquidated damages. {¶ 6} The cancellation and refund policy provides, in pertinent part: "[i]f you [Groedel] cancel your scheduled surgery between 7 and 14 days of the surgery date, *Page 3 one half of the fee will be refunded. If the surgery is cancelled with less than one weeks [sic] notice, none of the fee will be refunded. If you wish to schedule, cancel or reschedule your surgery, please call the office at * * *." Groedel also argues that, because penalty clauses are unenforceable in Ohio, the cancellation and refund policy provision is unenforceable, and she is therefore entitled to a full refund of $3,250. {¶ 7} As a general rule in Ohio, "* * * parties are free to enter into contracts that contain provisions which apportion damages in the event of default. `The right to contract freely with the expectation that the contract shall endure according to its terms is as fundamental to our society as the right to write and to speak without restraint. Responsibility for the exercise, however improvident, of that right is one of the roots of its preservation.'" Lake Ridge Academy v.Carney (1993), 66 Ohio St.3d 376, 613 N.E.2d 183, quoting Blount v.Smith (1967), 12 Ohio St.2d 41, 231 N.E.2d 301.2 {¶ 8} The complete freedom to contract, however, is not permitted in certain circumstances for public policy reasons, such as when stipulated damages constitute a penalty. "Punishment of a promisor for having broken his promise has *Page 4 no justification on either economic or other grounds and a term providing such a penalty is unenforceable on grounds of public policy." 3 Restatement of the Law 2d, Contracts (1981) 154, Section 356, Comment a. {¶ 9} "The characteristic feature of a penalty is its lack of proportional relation to the damages which may actually flow from failure to perform under a contract." Lake Ridge, supra, citingGarrett v. Coast Southern Federal Savings Loan Assn. (1973), 9 Cal.3d 731, 108 Cal.Rptr. 845, 511 P.2d 1197. Accordingly, a penalty is designed to coerce performance by punishing nonperformance. Thus, its principal object is not compensation for the losses suffered by the nonbreaching party. Id. {¶ 10} However, parties to a contract may provide in advance for damages to be paid in the event of a breach, "as long as the provision does not disregard the principle of compensation." 3 Restatement of Contracts, supra, at 157. These damages are known as liquidated damages. See Lake Ridge, supra. {¶ 11} Whether a stipulated amount in a damages clause constitutes liquidated damages or a penalty is a question of law for the court to decide. Lake Ridge, supra. Therefore, we apply a de novo standard of review when evaluating this issue. See Cleveland Elec. Illum. Co. v.Pub. Util. Comm., 76 Ohio St.3d 521, 1996-Ohio-298, 668 N.E.2d 889. *Page 5 {¶ 12} In Samson Sales, Inc. v. Honeywell, Inc. (1984),12 Ohio St.3d 27, 465 N.E.2d 392, the Ohio Supreme Court set forth the following three-prong test to determine whether a damages provision should be upheld as liquidated damages: "Where the parties have agreed on the amount of damages, ascertained by estimation and adjustment, and have expressed this agreement in clear and unambiguous terms, the amount so fixed should be treated as liquidated damages and not as a penalty, if the damages would be (1) uncertain as to amount and difficult of proof, and if (2) the contract as a whole is not so manifestly unconscionable, unreasonable, and disproportionate in amount as to justify the conclusion that it does not express the true intention of the parties, and if (3) the contract is consistent with the conclusion that it was the intention of the parties that damages in the amount stated should follow the breach thereof." {¶ 13} The reviewing court must step back and examine the damages provision in light of what the parties knew at the time the contract was formed and in light of an estimate of the actual damages caused by the breach. If the provision was reasonable at the time of formation and it bears a reasonable (not necessarily exact) relation to actual damages, the provision will be enforced. See 3 Restatement of Contracts, supra, at 157. {¶ 14} In the instant case, the damages Arsham would incur as a result of a patient's failure to keep a surgical appointment are difficult to ascertain and prove. Because Arsham provided a variety of services, it would be difficult to determine the net loss he would sustain from a cancelled appointment. Furthermore, it is difficult for him to substitute a patient for the same surgery or procedure with less than two weeks notice because of the time needed to plan for recovery from the procedure. *Page 6 Therefore, Arsham would be unable to calculate and prove the precise damages caused by Groedel's cancelled surgical procedure. {¶ 15} The second prong of the Samson Sales test focuses on whether the amount of the liquidated damages is unconscionable, unreasonable, or disproportionate in comparison to the "value of the subject contract" and the "probable consequences of the breach." Lake Ridge, supra. "Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." Id., citing Williams v. Walker-Thomas Furniture Co. (C.A.D.C. 1965), 121 U.S.App.D.C. 315, 350 F.2d 445. A contract is unconscionable if it did not result "from real bargaining between parties who had freedom of choice and understanding and ability to negotiate in a meaningful fashion." Id., citing Kugler v. Romain (1971), 58 N.J. 522,279 A.2d 640. The crucial question is whether "each party to the contract, considering his obvious education or lack of it, [had] a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print* * * ?" Id., citingWilliams, supra. {¶ 16} The Estimated Surgical Expenses agreement as a whole is not unconscionable. There is no evidence of coercion or duress and the parties appear to have dealt with each other at arm's length, especially since Groedel is an attorney with over fourteen years of experience. The agreement is legible, written in plain *Page 7 English, and is composed of a single page with the cancellation and refund provision printed in the same print size as the other clauses. Furthermore, there is no evidence to demonstrate that Groedel was pressured into signing an agreement, the terms of which she could not see or easily understand. Thus, we do not find that the contract was unconscionable. {¶ 17} Moreover, we find that the agreement as a whole was reasonable. The record demonstrates that Arsham's cancellation and refund policy was in place because of the variety of services he provided. His time was reserved for a specific procedure and when an appointment was cancelled, he would lose revenue from potential patients whom he could not accommodate because his time had already been reserved. {¶ 18} Finally, damages in the amount of one-half of the surgeon's estimated expenses are not disproportionate to the actual damages suffered by Arsham. {¶ 19} Because Arsham specifically reserved his time for Groedel's surgical procedure, it is not unreasonable to conclude that the potential missed appointments were equivalent to $1,625. {¶ 20} The third prong of the Samson Sales test is whether the "contract is consistent with the conclusion that it was the intention of the parties that damages in the amount stated should follow the breach thereof." The language in the Estimated Surgical Expenses agreement is so clear that we can only conclude that it *Page 8 represents the intention of the parties. The relevant provision provides that if Groedel cancelled her appointment between seven and fourteen days before the scheduled date, she would be required to pay $1,625. If she cancelled the appointment with less than one week's notice, she would be charged the full contract price of $3,250. This clause appears above the signature line and in full-size print. Therefore, we have no reason to believe that the plain language of the cancellation and refund policy does not represent the parties' intent. Thus, the third prong of the Samson Sales test is also met. {¶ 21} Accordingly, we find that the cancellation and refund policy is not a penalty clause, but rather a valid liquidated damages clause. {¶ 22} Groedel also contends that Arsham's office committed fraud or malfeasance when it requested her credit card information for the August 13, 2004 surgical procedure, but used the information to charge her credit card for the prior July 2, 2004 procedure. {¶ 23} Groedel also argues that if Arsham's representations are not fraud, they should be considered an intentional misrepresentation. However, in Ohio, fraud and intentional misrepresentation possess the same elements. To maintain a fraud or intentional misrepresentation action, Groedel must establish that: (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, *Page 9 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. Williams v. Aetna Fin. Co.,83 Ohio St.3d 464, 475, 1998-Ohio-294,700 N.E.2d 859, citing Cohen v. Lamko,Inc. (1984), 10 Ohio St.3d 167, 462 N.E.2d 407. See, also, Carpenter v.Scherer-Mountain Insurance Agency (1999), 135 Ohio App.3d 316,733 N.E.2d 1196, citing Burr v. Stark Cty. Bd. of Commrs. (1986),23 Ohio St.3d 69, 491 N.E.2d 1101. {¶ 24} Groedel bases part of her fraud and intentional misrepresentation claims on testimony introduced at trial. However, she has failed to file a copy of the trial transcript. "The duty to provide a transcript for appellate review falls upon the appellant. This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record. See, also, State v. Skaggs (1978), 53 Ohio St.2d 162, 372 N.E.2d 1355. This principle is recognized in App.R. 9(B), which provides, in part, `* * * the appellant shall in writing order from the reporter a complete transcript or a transcript of such parts of the proceedings not already on file as he deems necessary for *Page 10 inclusion in the record * * *.'" Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 400 N.E.2d 384. {¶ 25} Moreover, if no transcript of the proceedings is available, App.R. 9(C) provides an alternative means for completing the record.Calabrese v. Zmijewski, Cuyahoga App. No. 86185, 2006-Ohio-2322. Groedel, however, failed to comply with this alternative. Therefore, "[i]n the absence of a complete and adequate record, a reviewing court must presume the regularity of the trial court proceedings and the presence of sufficient evidence to support the trial court's decision."Burrell v. Kassicieh (1998), 128 Ohio App.3d 226, 714 N.E.2d 442. Thus, we must presume regularity in the trial court's proceedings and we cannot consider Groedel's references to trial testimony. In reGuardianship of Muehrcke, Cuyahoga App. Nos. 85087 and 85183,2005-Ohio-2627. {¶ 26} In the instant case, other than providing a self-serving handwritten note, Groedel failed to produce any evidence that she cancelled her procedure on June 17, 2004. The only evidence in the record regarding a call from Groedel is a notarized statement from Arsham's answering service indicating that she called on June 24, 2004. In addition, there is no evidence that Arsham's office made any false statements related to the use of Groedel's credit card or made any representations with the intent to mislead her. The record demonstrates that Groedel's credit card was initially charged $3,250 and that she was later reimbursed $1,625, which left a *Page 11 charge of $1,625 on her credit card. Moreover, there is no evidence of injury to Groedel, since she was required to pay $1,625 under the agreement for the late cancellation of her scheduled surgical procedure. {¶ 27} Therefore, we presume the regularity of the trial court's proceedings and find sufficient evidence to support the trial court's decision. Thus, we find no proof of fraud or intentional misrepresentation. {¶ 28} Accordingly, the sole assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant 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 Shaker Heights 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. CHRISTINE T. McMONAGLE, J. and MARY J. BOYLE, J., CONCUR. 1 This appointment was later cancelled two weeks prior to August 13, 2004. The cancellation of the August 13, 2004 appointment is not in dispute, as both parties agree that she was not charged for that appointment. 2 In Lake Ridge, defendant Carney failed to cancel his son's school enrollment by the date specified in the contract. The Ohio Supreme Court held that Lake Ridge's cancellation clause provided for valid liquidated damages, and the Court affirmed the judgment against Carney for the full tuition balance of $6,240. Id. *Page 1

2016-07-06 06:42:01.915244+00

OPINION Defendant-appellant, Delmond L. Bowie, appeals from the judgment of the Defiance County Court of Common Pleas entered pursuant to his jury conviction for a December 11, 1998 shooting. In January 1999, the Defiance County Grand Jury indicted defendant on one count of felonious assault, R.C. 2903.11(A)(2), with a firearm specification and one count of improperly discharging a firearm at or into a habitation, R.C. 2923.161. The case proceeded to a jury trial on June 14, 1999. Prior to the beginning of trial, the trial court granted the State's motion to dismiss the firearm specification. The record further demonstrates that defendant was actually prosecuted for complicity to commit the two offenses for which defendant was indicted. The charges resulted from a shooting that occurred on December 11, 1998. The State presented the testimony of two of the four individuals who were allegedly involved in the incident. The testimony revealed that a fight between Michah Wright and Miguel Santiago had occurred at the Northtown Mall prior to the incident. Defendant and Lesley Quarles were present at this time. There is no dispute that Wright was the man who did the subsequent shooting that same night. A bullet struck Quarles as he was walking down Franklin Street with Santiago and another bullet hit a residence on Franklin Street. The defendant did not dispute driving the vehicle at the time of the shooting, but testified that his actions were without knowledge as to the alleged crimes. The jury returned a verdict finding defendant guilty of the two offenses for which he was indicted. Defendant was sentenced to consecutive terms of imprisonment of four years and five years, respectively, on these offenses. Defendant now appeals, raising two assignments of error. For his first assignment of error, defendant asserts: The trial court committed prejudicial error in submitting the question of defendant's guilt to the jury. By this assignment of error, defendant argues that there was insufficient evidence to support his convictions of complicity to the felonious assault of Lesley Quarles and complicity to improperly discharging a firearm at or into a habitation. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. R.C. 2903.11(A)(2) defines the offense of felonious assault as follows: (A) No person shall knowingly: (2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. R.C. 2923.161 defines the offense of improperly discharging a firearm into a habitation as follows: (A) No person, without privilege to do so, shall knowingly do either of the following: (1) Discharge a firearm at or into an occupied structure that is a permanent or temporary habitation of any individual[.] Complicity in the felonious assault or in improperly discharging a firearm at or into a habitation is committed when a person, acting with the kind of culpability required for the commission of the offense, aids or abets another in committing the offense. R.C. 2923.03(A)(2). Both offenses include the word "knowingly," which is defined in R.C. 2901.22(B) as follows: (B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. When viewed in a light most favorable to the prosecution, we conclude that there was sufficient evidence for the jury to find that defendant committed complicity to the offenses for which he was indicted. As noted above, there is no dispute that defendant was operating the vehicle which was used in the shooting committed by Wright on December 11, 1998 at Franklin Street. The police questioned Wright, who first denied any involvement in the alleged crimes, but after being confronted with defendant's statements implicating him, the trial record shows that in Wright's confession to Detective Simon and in his trial testimony, Wright stated that defendant provided the gun he used in the shooting and that defendant, who was driving, did as he directed. Wright also testified concerning defendant's knowledge of his actions prior to the shooting. According to Jennifer Gomez, the girlfriend of Santiago, defendant and Wright on the evening of the shooting went to Burger King where defendant told her that that they were "going to be blasting" when they see Santiago. Defendant admitted he had lied each time in his statements to the police about his involvement in the alleged crimes until the fourth statement when defendant acknowledged that he was the driver of the car involved in the shooting. The record demonstrates that defendant made some contradictory statements in his subsequent testimony at trial, including that he did not speak with Gomez while he and Wright were at Burger King and whether he saw Santiago and Quarles before they got shot. Unlike his subsequent trial testimony, defendant never indicated in his statements to the police that after the shooting occurred Wright had the gun on his lap and it was pointing at him while he was told by Wright to drive away. Defendant further testified contrary to Wright's testimony that he neither owns a gun nor did he provide the gun involved in the shooting. The State's witnesses, if believed, established that defendant knowingly aided and abetted Wright in the shooting by providing the firearm and transportation for the crime. It was within the jury's province as to which witnesses were credible. State v.DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. See, also, State v. Thompkins (1997), 78 Ohio St.3d 380. Accordingly, defendant's first assignment of error is overruled. The defendant's second assignment of error states as follows: "Defendant/appellant was denied effective assistance of counsel." Defendant argues that trial counsel's failure to renew a Crim.R. 29 motion for acquittal at the close of all the evidence and to file a motion for judgment notwithstanding the jury verdict denied him effective assistance of counsel. In order to establish a claim of ineffective assistance of trial counsel, a defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. State v.Bradley (1989), 42 Ohio St.3d 136, 142. Defendant's argument that his trial counsel failed to renew a Crim.R. 29 motion for acquittal based on the sufficiency of the evidence is not well taken in light of our disposition of defendant's first assignment of error. The standard for granting an acquittal is similar to the standard specified in Jenks, supra, for reviewing the sufficiency of the evidence. See, e.g., Statev. Dennis (1997), 79 Ohio St.3d 421, 430. Construing Wright's testimony, Gomez's testimony and the police officer's testimony in a light most favorable to the State, a rational trier of fact could have found the essential elements of the charges proven beyond a reasonable doubt. Inasmuch as the standard for granting a motion for acquittal under Civ.R. 29 following the jury's verdict is concerned with the sufficiency of the evidence presented, defendant's second argument regarding counsel's performance is similarly not well taken. Accordingly, the defendant's second assignment of error is overruled. The trial court judgment appealed from is affirmed. Judgment affirmed. SHAW, J. HADLEY, P.J., and WALTERS, J., concur.

2016-07-06 06:42:01.988735+00

OPINION *Page 2 {¶ 1} On March 10 and 11, 2005, a confidential informant for the City of Newark Police Department and the Central Ohio Drug Enforcement Task Force, Joe Messina, went to the residence of appellant, Ricky Labora, and purchased cocaine from appellant. Mr. Messina paid $40.00 each time. {¶ 2} On March 18, 2005, the Licking County Grand Jury indicted appellant on two counts of trafficking in cocaine within the vicinity of a school in violation of R.C. 2925.03 and one count of permitting drug abuse in violation of R.C. 2925.13. The indictment also carried a forfeiture specification under former R.C. 2925.42. {¶ 3} On June 3, 2005, appellant's attorney requested a continuance of the June 8, 2005 trial date. By judgment entry filed June 7, 2005, the trial court granted the motion and scheduled the trial for August 1, 2005. {¶ 4} On July 7, 2005, appellant filed a pro se motion to dismiss, claiming violations of his speedy trial rights. By judgment entry filed July 25, 2005, the trial court denied said motion. {¶ 5} A jury trial commenced on August 1, 2005. The jury found appellant guilty as charged, and found his property was subject to forfeiture. By judgment entry filed August 2, 2005, the trial court sentenced appellant to an aggregate term of twenty months in prison, and forfeited his property. A nunc pro tunc entry was filed on November 29, 2005 to include the legal description of the forfeited property. A final nunc pro tunc judgment entry incorporating the legal description and appellant's sentence was filed on June 19, 2007. *Page 3 {¶ 6} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I {¶ 7} "THE DEFENDANT/APPELLANT DID NOT RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL DURING TRIAL, AND WAS THEREBY DEPRIVED OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION." II {¶ 8} "THE TRIAL COURT ERRED AND THEREBY DEPRIVED DEFENDANT/APPELLANT OF HIS RIGHT TO A SPEEDY TRIAL, AS GUARANTEED BY ORC § 2945.71, BY OVERRULING DEFENDANT/APPELLANT'S MOTION TO DISMISS FILED JULY 7, 2007." III {¶ 9} "THE TRIAL COURT ERRED AND THEREBY DEPRIVED DEFENDANT/APPELLANT OF DUE PROCESS AND EQUAL PROTECTION OF LAW AS GUARANTEED BY THEFOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION BY PERMITTING DEFENDANT/APPELLANT'S TRIAL TO GO FORWARD WHILE DEFENDANT WAS WEARING JAIL CLOTHING." IV {¶ 10} "THE TRIAL COURT ERRED AND THEREFORE VIOLATED THE PROHIBITION AGAINST EXCESSIVE FINES AS PROHIBITED BY THE *Page 4 EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION BY ORDERING THE FORFEITURE OF DEFENDANT/APPELLANT'S REAL ESTATE TO THE STATE OF OHIO." V {¶ 11} "THE TRIAL COURT ERRED AND THEREBY DEPRIVED DEFENDANT/APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION, BY ORDERING FORFEITURE OF DEFENDANT/APPELLANT'S REAL ESTATE TO THE STATE OF OHIO WHEN PRIOR NOTICE WAS NEVER GIVEN TO DEFENDANT/APPELLANT THAT INCLUDED A SUFFICIENT DESCRIPTION OF PROPERTY SUBJECT TO FORFEITURE." VI {¶ 12} "THE TRIAL COURT ERRED AND THEREBY DEPRIVED DEFENDANT/APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION, AND THEREBY VIOLATED ORC § 2945.42(B)(4), BY INFORMING THE JURY OF PROPERTY SUBJECT TO FORFEITURE PRIOR TO DEFENDANT/APPELLANT'S CONVICTION OF THE DRUG ABUSE OFFENSE." I {¶ 13} Appellant claims he was denied the effective assistance of trial counsel. We disagree. *Page 5 {¶ 14} The standard this issue must be measured against is set out inState v. Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari denied (1990), 497 U.S. 1011. Appellant must establish the following: {¶ 15} "2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976],48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v.Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.) {¶ 16} "3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." {¶ 17} Appellant argues his trial counsel failed to investigate and prepare for trial, failed to file a pretrial motion requesting recusal of the trial judge as the trial judge had represented appellant at one time, failed to object to appellant being tried in "jail garb," failed to examine witnesses regarding the police's failure to recover the $40.00 marked money given to appellant during the drug buys, failed to object to the prosecutor's closing argument, failed to demand strict compliance regarding the forfeiture statute, failed to object to the jury's knowledge of the property subject to forfeiture prior to its rendering of a verdict, failed to challenge what specific property was subject to forfeiture, and failed to argue that forfeiture violated theEighth Amendment prohibition against excessive fines. *Page 6 {¶ 18} First, appellant argues his trial counsel was not prepared because he only expensed two hours on his appointed counsel fees application. We note from the docket that discovery was undertaken. From our review of the cross-examination of the confidential informant and the Central Ohio Drug Enforcement Task Force Narcotics Officer, City of Newark Detective Doug Bline, we do not find any evidence of ill-preparedness by defense counsel. {¶ 19} Next, appellant argues his trial counsel should have filed a pretrial motion requesting recusal of the trial judge as the trial judge had represented appellant at one time. The record does not demonstrate any need for such a request. {¶ 20} Next, appellant argues his trial counsel failed to object to his being tried in "jail garb." The only reference in the record to appellant's clothing is in defense counsel's opening statement: {¶ 21} "First of all, ladies and gentlemen, let me try to humanize Ricky Labora a little bit as he sits there in his jail garb and tattoos, obviously having been transported from the jail where he's been held pending this trial. He was arrested at his own home, his home that he's owned since — 30 some years. He's held the same job at JB Concrete for 30 some years. He was married for 25 years. He lost his wife in February of this year shortly before his troubles with the law began." T. at 44. {¶ 22} The "jail garb" statement, as well as the additional ones about appellant's job and losing his wife, was definitely used to gain sympathy from the jury. This court must accord deference to defense counsel's strategic choices made during trial and "requires us to eliminate the distorting effect of hindsight." State v. Post (1987), 32 Ohio *Page 7 St.3d 380, 388. We fail to find this issue prejudiced the outcome of the trial. Appellant never took the stand and therefore his credibility was never an issue. {¶ 23} Next, appellant argues his trial counsel did not adequately pursue the issue of the marked money. There were two controlled buys, one on March 10, 2005 and the second on March 11, 2005. A search warrant was executed about an hour after the second buy. T. at 82-84. Detective Bline testified numerous people were inside the residence selling drugs at the same time. T. at 100. Highlighting the marked money issue could have raised arguments from the prosecutor that perhaps appellant used the money to purchase drugs from others. Again, we find this issue to fall under trial strategy. {¶ 24} Next, appellant argues his trial counsel should have objected to the following statements made by the prosecutor during closing argument regarding the charge of permitting drug abuse: {¶ 25} "Joe Messina bought crack cocaine from the defendant on two occasions. He also testified that he was using his property on March 10th, he was using it as a crack house, because not only did Mr. Labora sell crack cocaine on that day, but he was allowing another dealer to supply that crack cocaine. In addition, look at the tail end of that purchase, or both purchases. He was allowing the house hits. A house hit of crack cocaine, that would be felony drug possession. You see, Mr. Messina gave back a little bit of the crack to the house, the house located at 120 Western Avenue Rear." T. at 171. {¶ 26} Detective Bline testified the police department received numerous complaints over a six month period about drug trafficking at the residence. T. at 101-102. *Page 8 Four individuals were at the residence at the time of the execution of the search warrant. T. at 86. Mr. Messina testified he gave appellant a "house hit," a piece of crack as a "[c]ourtesy, giving him a small bump for helping out." T. at 141. The purpose of the "courtesy house bump" was because appellant had facilitated the deal by getting the crack from someone else. T. at 142. {¶ 27} Although the prosecutor's statement is technically accurate, it might have been misleading. However, failing to object to it was not so deficient as to prejudice the outcome of the trial. {¶ 28} Lastly, appellant argues his trial counsel should have objected to the forfeiture proceedings. Appellant argues his trial counsel failed to object to the jury's knowledge of the property subject to forfeiture prior to its rendering of a verdict, failed to challenge what specific property was subject to forfeiture, and failed to argue that forfeiture violated the Eighth Amendment prohibition against excessive fines. {¶ 29} Former R.C. 2925.42 governed criminal forfeiture of property. Subsection (B)(4) stated the following: {¶ 30} "In a felony drug abuse offense criminal action or in a delinquent child action, if the trier of fact is a jury, the jury shall not be informed of any specification described in division (B)(1)(a) of this section or of any property described in that division or division (B)(1)(b) of this section prior to the alleged offender being convicted of or pleading guilty to the felony drug abuse offense or prior to the juvenile being found to be a delinquent child for the commission of an act that, if committed by an adult, would be a felony drug abuse offense." *Page 9 {¶ 31} Defense counsel stipulated to the Licking County Tax Map (State's Exhibit 12), the Warranty Deed on the subject property (State's Exhibit 13), and appellant's Land Contract Agreement on the property (State's Exhibit 15). T. at 164. This was done outside the presence of the jury. The trial court noted the following: {¶ 32} "Those will be admitted into evidence. However, they will not be submitted to the jury because they pertain to the forfeiture specification, and then that doesn't go to the jury unless there is a conviction." T. at 164-165. {¶ 33} Following the guilty verdicts, the trial court informed the jury of an additional duty, the duty to determine the forfeiture specification. T. at 205-207. The trial court noted it "was not permitted per statute to advise you that there is also a forfeiture provision that is connected with the felony drug abuse conviction" prior to the rendering of a verdict. T. at 205. {¶ 34} Any stipulations as to the property made in front of the jury did not mention anything about forfeiture. T. at 166-168. The trial court followed proper procedure. We do not find any violation of former R.C. 2925.42(B)(4). {¶ 35} As for the argument that defense counsel failed to object to the description of the specific property subject to forfeiture, we find the state presented certified documents regarding the property owned by appellant, State's Exhibits 12, 13, and 15, and each identified the address. T. at 167-168. The address matched the address specifically testified to by Detective Bline and Mr. Messina. T. at 56, 72, 124. {¶ 36} Lastly, appellant argues his trial counsel should have argued that forfeiture violated the Eighth Amendment prohibition against excessive fines. We have considered the issue of proportionality regarding forfeiture and have determined that *Page 10 such factors are to be considered. State v. Perrin (February 7, 2000), Licking App. No. 99-CA-0051. {¶ 37} In this case, appellant was subject to maximum fines of $12,500.00. The trial court did not impose any fines because of the forfeiture. T. at 213. Because there is no evidence presented in the record, we do not know the value or extent of realization of monies garnered from the forfeiture sale. Therefore, we are unable to determine from the record the issue of excessive fine. {¶ 38} Upon review, we do not find any deficiency in trial counsel's performance in the complained of areas. {¶ 39} Assignment of Error I is denied. II {¶ 40} Appellant claims the trial court erred in failing to dismiss his case for violations of the speedy rights statute, R.C. 2945.71. We disagree. {¶ 41} Pursuant to R.C. 2945.71(C)(2), a person against whom a charge of felony is pending shall be brought to trial within two hundred seventy days after the person's arrest. Subsection (E) states, "For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days." R.C. 2945.72 provides for extensions of time for hearing or trial. The time for trial may be extended for "[t]he 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." R.C. 2945.72(H). *Page 11 {¶ 42} Appellant was incarcerated from the time of his arrest, March 21, 2005, until trial, August 1, 2005. Appellant's trial was originally set for June 8, 2005. He concedes his case was timely set pursuant to R.C. 2945.71, but argues his trial counsel's request for a continuance was not authorized by him and therefore should not be used to toll R.C. 2945.71. The motion for continuance filed on June 3, 2005 stated the following: {¶ 43} "Petitioner further moves the Court for an Order continuing the hearing which is now set for June 8, 2005, on the basis that the undersigned has recently suffered from a severe illness and has recently been released from the hospital with medications and is experiencing complications. This being the case, counsel has not had contact with the client for some time and has not been able to see all of the states evidence. Therefore counsel respectfully requests a continuance until he is able to adequately prepare and represent the client. The state is aware of counsel's condition and has no objection at this time." {¶ 44} By judgment entry filed June 7, 2005, the trial court granted the continuance, stating the following: {¶ 45} "The Court has been advised that Defendant's counsel James Placzkiewicz is currently being hospitalized. Therefore, the Jury Trial scheduled for Wednesday, June 8, 2005, at 9:00 A.M., is hereby continued to Monday, August 1, 1005, at 9:00 A.M. {¶ 46} "Speedy trial time is tolled due to the continuance being occasioned by the act of the Defendant." *Page 12 {¶ 47} We note appellant's trial counsel was a court appointed attorney. We also note in Assignment of Error I, appellant argued his trial counsel was not prepared. Now appellant argues the continuance for counsel "to adequately prepare and represent the client" should not be counted against him. {¶ 48} Although the best practice is to have a defendant sign a waiver at the time of a continuance, we cannot say that this delay should be counted against the state. In its determination, the trial court found defense counsel's illness was sufficient enough to overcome the mandates of R.C. 2945.71. A denial would have caused even greater issues if new counsel would have been appointed. {¶ 49} Upon review, we find no violations of appellant's speedy trial rights. {¶ 50} Assignment of Error II is denied. III {¶ 51} Appellant claims the trial court erred in permitting the matter to proceed to trial while he was wearing "jail garb." We have previously reviewed this issue in Assignment of Error I and found it not to be error under the ineffective counsel standards. As a result, it is also not plain error. In order to prevail under a plain error analysis, appellant bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the error. State v.Long (1978), 53 Ohio St.2d 91; Crim. R. 52(B). Notice of plain error "is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Long at paragraph three of the syllabus. {¶ 52} As noted in Assignment of Error I, the issue of jail clothing was used as a sympathy play by defense counsel. Although we do not condone the permitting of jail *Page 13 clothing at trial, we find it does not rise to the level of plain error. First, it was only mentioned and used by defense counsel as trial strategy and secondly, appellant was identified as being in a blue shirt when identified in open court. Clearly, it was not true "jail garb" as generally envisioned. {¶ 53} Assignment of Error III is denied. IV, V, VI {¶ 54} These assignments challenge the forfeiture proceedings. As with the "jail garb" issue, we reviewed the forfeiture issues in Assignment of Error I and found they do not meet the ineffective counsel standards therefore, we also find they do not rise to the level of plain error. {¶ 55} As to the excessive fine and disproportional issue, there is nothing in the record to establish appellant's equity in the property. Although the trial court could have imposed fines totaling $12,500.00, it chose not to do so in light of the forfeiture. T. at 213. The property was identified as a place of criminal drug activity via numerous complaints to the police, was located in the vicinity of a school, and was the location of the two controlled drug buys. {¶ 56} Appellant also argues the property was not properly identified. Throughout the trial, the address was given by the witnesses. The address corresponds with State's Exhibits 12, 13, and 15. We find the property subject to forfeiture was sufficiently identified. {¶ 57} Lastly, appellant argues it was improper for the trial court to accept evidence relating to the property subject to forfeiture at the end of the state's case. T. at *Page 14 164-168. As we stated in Assignment of Error I, we find the procedures used by the trial court did not violate R.C. 2925.42(B). {¶ 58} Assignment of Errors IV, V, and VI are denied. {¶ 59} The judgment of the Court of Common Pleas of Licking County, Ohio is hereby affirmed. By Farmer, P.J., Wise, J. and Delaney, J. concur. *Page 15 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. *Page 1

2016-07-06 06:42:02.022961+00

OPINION This is a custody case which stems from a decree of divorce entered on April 27, 1994. At that time, and pursuant to a joint request, the plaintiff, Patricia Goetze, and the defendant, Karl Goetze, filed a shared parenting plan regarding their parental rights and responsibilities in the care of their two children, Dylan, who was born on April 9, 1990, and Damon, who was born on May 17, 1991. Thereafter, on June 26, 1995, Patricia Goetze filed a motion for sole custody of the children, and after a three-day hearing before a magistrate, or on October 9, 1996, the magistrate issued a decision in which he found that termination of the shared parenting plan was appropriate due to the fact that Karl Goetze resided in California while Mrs. Goetze resided in Ohio, and that the involvement and visitation envisioned by the shared parenting plan was not feasible. The magistrate also found that an award of custody to Patricia Goetze was in the best interests of the children. However, the trial court rejected the recommendation of the magistrate on the ground that the plaintiff had not demonstrated a change of circumstances (R.C. 3109.04), but the judgment of the trial court was reversed by this court for the reason that a change of circumstances was not indispensable to the termination of a shared parenting plan. Goetze v. Goetze (March 27, 1998), Montgomery App. No. 16491, unreported. Upon remand of the case to the trial court, the cause was again referred to a magistrate who found once again that Patricia Goetze should have sole custody of Dylan and Damon Goetze. However, the defendant again filed objections to the findings of the magistrate, and in a comprehensive and detailed analysis of the evidence, the trial court again found that the shared parenting plan should be terminated and that an award of custody to the defendant, with liberal visitation for the plaintiff, was most appropriate. In the present appeal from the custody order thereupon entered on September 17, 1999, Mrs. Goetze has set forth two assignments of error, the first of which has been stated as follows: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO CONSIDER THE PARTIES ON EQUAL STANDING IN AWARDING CUSTODY. During the initial appearance of this case, this court emphasized that the parties upon remand should have equal standing relative to the custody of the children. Specifically, we noted that "if the court finds termination of the plan appropriate, the court then must proceed with an allocation of parental rights as if making the allocation for the first time." And upon remand of the case, the trial court not only alluded to the comment of the appellate court, but also expressly recognized its obligation to make a new custody allocation "as if no request for shared parenting even had been made." R.C. 3109.04(E)(2)(d). In fact, there is nothing in the record to suggest that the trial court was not fully aware that custody was to be determined ab initio after the termination of joint custody. See, Blair v. Blair (1986), 34 Ohio App.3d 345. Hence, the first assignment of error, although stated somewhat differently, is really directed to the weight and sufficiency of the evidence presented to support the award of custody. In this regard, the nature of the evidence, as well as the difficulty in choosing a residential parent, are reflected in an observation of the trial court that "the children in this case are fortunate to have two loving parents and several family members who wish to be a significant part of their lives." Furthermore, the differing views of the trial court and its magistrate suggests, at least, that the overall evidence is almost in equipoise, but under such circumstances, the ultimate responsibility for and the final determination of what was in the best interests of the children rested exclusively with the domestic relations court. See, Inman v. Inman (1995), 101 Ohio App.3d 115. Here, the record provides no basis for concluding that the trial court decided the determinative custody issue without a conscious regard for the factors enumerated in R.C. 3109.04(C), and it is fundamental, of course, that this court may not interfere with a decision which is based upon some credible and competent evidence. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21. Where the evidence is susceptible of more than one construction, a reviewing court is bound to give it that interpretation which is consistent with the order of the trial court. See, Seasons CoalCo. v. Cleveland (1984), 10 Ohio St.3d 77. No useful purpose would be served by any discussion of the evidence relied upon by either Patricia or Karl Goetze to show that they are in the better position to serve the best interests of Dylan and Damon. In fact, an award of custody to one or the other hardly could be said to be an "abuse of discretion" as that term is defined in law. See, Blakemore v. Blakemore (1983),5 Ohio St.3d 217. See also, Masters v. Masters (1994), 69 Ohio St.3d 83; Donovan v. Donovan (1996), 110 Ohio App.3d 615. Indeed, uncertainty is inherent in the placement of children, and for obvious reasons, this court may not merely substitute its opinion of that of the trial court. Trickey v. Trickey (1952), 158 Ohio St. 9. Accordingly, the state of the evidence, being such as to preclude any interference from a reviewing court, and the trial court, having expressed a complete awareness of its obligation "to consider the parties on equal footing," the first assignment of error is overruled. The second assignment of error has been presented by the appellant as follows: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO CONSIDER THE IN CAMERA INTERVIEW OF THE CHILD. In the present case, Mrs. Goetze requested that the trial court conduct an in camera interview of Dylan and Damon, and pursuant to R.C. 3109.04(B)(2)(b), the magistrate determined that the older of the children, Dylan, had sufficient reasoning ability to express his wishes and concern with respect to the allocation of parental rights and responsibilities. Thereafter, Dylan's wishes, which were favorable to his mother, were considered by the magistrate in the ultimate determination of the issue of custody. Subsequently, however, the trial court concluded, without a personal interview of the child, that it was not in Dylan's best interest to require him to express his concerns and wishes. Specifically, the trial court observed as follows: The trial court agrees with defendant's contention that the magistrate placed too much weight on the interview with Dylan. At the time of the interview, Dylan was eight years old. Given the child's young age, the conflict between the parents surrounding the custody proceedings, the appointment of a guardian ad litem, the presence of psychological reports and recommendations, and the lack of circumstances necessitating his factual viewpoint, the court finds as an initial matter that it was not in Dylan's best interest to ask him to express his concerns and wishes, as it undoubtedly placed unnecessary stress on the child. Although the interview with Dylan may have been found to contain information relevant to the custody determination, the interview was only one factor to be considered." In support of the assigned error, the appellant argues that the trial court failed to journalize the "special circumstances" required by R.C. 3109.04(B)(2)(b) upon a finding that it would not be in the best interests of a child to determine the child's wishes and concerns with respect to the allocation of custody. However, given the serious conflict between the parents in this case, as found by the trial court, and given the stressful situation which undoubtedly emanated from placing Dylan in the middle of the controversy, as found by the court, the record does portray some "special circumstances" and distinctive characteristics. And in the final analysis, it was within the trial court's discretion as to whether to allow the testimony of Dylan regarding custody. See, Wade v. Wade (1983), 10 Ohio App.3d 167. Moreover, the trial court properly noted that the propriety of insisting upon Dylan's testimony was dependent upon necessity. As reiterated by this court in Bell v. Bell (June 5, 1998), Clark App. No. 97-CA-105, unreported, "children have certain rights, including the right to love each parent without feeling guilt, pressure, or rejection, * * * [and] the right to have a positive and constructive on-going relationship with each parent." Id. at p. 1. Furthermore, the trial court expressly found that the interview with Dylan was not deserving of persuasive weight when considered with other factors. And upon the record as a whole, therefore, the second assignment of error must be overruled. Finding neither of the alleged errors to be well made when tested by the applicable standard of review, the judgment of the Domestic Relations Court will be affirmed. ____________________________ KERNS, J. GRADY, P.J., and WOLFF, J., concur. (Hon. 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).

2016-07-06 06:42:02.299794+00

JOURNAL ENTRY and OPINION {¶ 1} Plaintiffs-appellants, a group of seven individuals,1 designated by the trial court as "Bevan Group 9," appeal the trial court's decision granting the motion to dismiss of defendants-appellees, 47 individually appellees, 47 individually named insurance entities2 (collectively, the "insurance defendants"). Finding no merit to the appeal, we affirm. {¶ 2} Bevan Group 9 includes seven individual plaintiffs who originally filed essentially identical personal injury lawsuits against numerous manufacturers, distributors, and premises owners (collectively, the "industrial defendants") for their involvement in the manufacturing, sale, distribution and/or use of asbestos and/or asbestos containing products.3 Bevan Group 9 also alleged claims against the insurance claims against the insurance defendants, seeking to hold them liable for each plaintiff's asbestos-related injuries based on their failure to protect plaintiffs from the harmful risks of asbestos. The amended complaint asserted claims against the insurance defendants for: (1) negligent undertaking, (2) spoliation, (3) conspiracy, and (4) concert of action. {¶ 3} In response to the complaint, several insurance defendants filed motions to dismiss and motions for judgment on the pleadings, while other insurance defendants joined in the motions filed by their co-defendants. In accordance with its case management order, the trial court treated the motions as a collective motion of all the defendants, including those insurance defendants which had not filed motions, and conducted a hearing on the motions. In finding that Bevan Group 9 failed to state a claim pursuant to Civ.R. 12(B)(6), the trial court dismissed the complaint.4 {¶ 4} Bevan Group 9 appeals,5 raising two assignments of error. {¶ 5} In its first assignment of error, the Bevan Group 9 claims that the trial court erred in granting the insurance defendants' motion to dismiss. {¶ 6} When reviewing a judgment granting a Civ.R. 12(B)(6) motion, an appellate court must independently review the complaint to determine whether dismissal was appropriate. Decisions on Civ.R. 12(B)(6) motions are not findings of fact, but, rather are conclusions of law. State ex.rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40. An appellate court need not defer to the trial court's decision in Civ.R. 12(B)(6) cases. McGlone v. Grimshaw (1993), 86 Ohio App.3d 279, citingAthens Cty. Bd. of Elections, supra. {¶ 7} In order to prevail on a Civ.R. 12(B)(6) motion, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recover. A court is confined to the averments set forth in the complaint and cannot consider outside evidentiary materials. Greeley v. Miami Valley Maintenance Contrs. Inc. (1990),49 Ohio St.3d 228; Chinese Merchs. Ass'n v. Chin, 159 Ohio App.3d 292,2004-Ohio-6424. While a court must presume that all factual allegations set forth in the complaint are true and must make all reasonable inferences in favor of the nonmoving party, the same does not apply to unsupported conclusions. Mitchell v. Lawson Milk Co. (1988),40 Ohio St.3d 190, 192-193; Burks v. Peck, Shaffer Williams (1996),109 Ohio App.3d 1, 6. Indeed, the Ohio Supreme Court has repeatedly recognized that unsupported conclusions will recognized that unsupported conclusions will not withstand a motion to dismiss. Id., citing Schulmanv. Cleveland (1972), 30 Ohio St.2d 196, 198. See, also State ex rel.Hickman v. Capots (1989), 45 Ohio St.3d 324. Negligent Undertaking {¶ 8} Bevan Group 9 first argues that the trial court erred in finding that the insurance defendants did not owe a duty. {¶ 9} It is well-settled that "liability in negligence will not lie in the absence of a special duty owed by the defendant." Hill v. Sonitrol ofSouthwestern Ohio (1988), 36 Ohio St.3d 36, quoting Second Nat'l Bank ofWarren (1984), 9 Ohio St.3d 77, 78. Moreover, negligence liability premised on a failure to act arises only where a "special relationship" exists between the parties. Wallace v. Ohio Dept. of Commerce, Div. ofState Fire Marshall, 96 Ohio St.3d 266, 280, 2002-Ohio-4210. In the absence of a "special relationship," Ohio law does not impose liability on an actor for failing to take affirmative precautions for the aid or protection of another. Hill, supra, at 39. Thus, even when an actor has knowledge that another party needs assistance or protection, the law imposes no duty to act unless a "special relationship" exists. See, e.g., Beacon Ins. Co. v. Patrick (Apr. 3, 1997), Cuyahoga App. No. 70663. {¶ 10} In finding that the insurance defendants and the Bevan Group 9 had no "special relationship," the court properly held that the insurance defendants owed no duty to protect the Bevan Group 9 from the hazards of from the hazards of asbestos, despite their alleged knowledge of the risks. While Bevan Group 9 does not challenge the trial court's determination that the insurance defendants owed no duty by virtue of a "special relationship," each plaintiff claims that the insurance defendants voluntarily assumed a duty to ensure the safety of their insureds' premises and to establish reasonable standards for workers' safety. As a result of the insurance defendants' voluntarily assumption of these duties, the Bevan Group 9 claims that tort liability exists by virtue of the Good Samaritan doctrine, set forth in Section 324A of the Restatement (Second) of Torts, which provides: "One who undertakes, gratuitously or for consideration, to renderservices to another which he should recognize as necessary for theprotection of a third person or his things, is subject to liability to thethird person for physical harm resulting from his failure to exercisereasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the riskof such harm, or, (b) he has undertaken to perform a duty owed by the other to the thirdperson, or (c) the harm is suffered because of reliance of the other or the thirdperson upon the undertaking." Restatement (Second) of Torts § 324A (1965). {¶ 11} Bevan Group 9 argues that, contrary to the trial court's conclusion, the complaint pled affirmative acts taken by the insurance defendants which demonstrated that they voluntarily assumed a duty of reasonable care. We disagree. The allegations relied on by Bevan Group 9 demonstrate that the claims are entirely predicated on the insurance predicated on the insurance defendants' failure to act. For example, the complaint states: "The Insurance Defendants were negligent in their independent duty toinspect machinery, boilers, facilities such as chemical plants,refineries and buildings and warn of the deadly dangers of asbestosexposure. The Insurance Defendants breached these duties by not onlyfailing to adequately educate, investigate and warn of hazardousconditions, but also knowingly and actively contributing to Plaintiffs'exposure to asbestos by their inaction and acquiescence." (Varner Amended Compl. at ¶ 212). {¶ 12} Further, we fail to see how the allegations of the complaint demonstrate that the insurance defendants, either as individual entities or collectively, voluntarily assumed a duty to the Bevan Group 9. As for Bevan Group 9's claim that the insurance defendants voluntarily assumed a duty to the Bevan Group 9 by virtue of the alleged actions they performed for their insureds, i.e., inspections, product design, and training of their own representatives, we disagree. We find no support in the complaint that such actions were taken by the insurance defendants for the benefit of the Bevan Group 9. Indeed, the Bevan Group 9 fails to allege any connection between themselves and the insurance defendants. Further, we find nothing in the complaint that could be construed as demonstrating that the insurance defendants voluntarily assumed a duty to the Bevan Group 9 and the public at large. {¶ 13} Moreover, the complaint states no facts supporting the Bevan Group 9's sweeping assertions that the insurance defendants negligently inspected machines, negligently designed products, and negligently trained negligently trained employees. The mere inclusion of a conclusory statement that a defendant was negligent, without any reference to any supporting facts, does not require the court to accept the statements as true. See, Mitchell, supra. Although we are cognizant that "a complaint need not contain every factual allegation that the complainant intends to prove, as such facts may not be available until after discovery."Landskroner v. Landskroner (2002), 154 Ohio App.3d 471, 490. The complaint, however, "must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be on the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Fancherv. Fancher (1982), 8 Ohio App.3d 79, 83. As to the claim of negligent undertaking, we find neither in the complaint. {¶ 14} However, even assuming that the insurance defendants had voluntarily assumed a duty to the Bevan Group 9, we find that the complaint fails to satisfy any subsection of the Restatement Section 324A. The Bevan Group 9 acknowledges that the insurance defendants never undertook to perform the duties of their insureds, thereby negating any claim under subsection (b). As for subsection (a) and (c), we find that none of the allegations establish that the Bevan Group 9 relied on the alleged acts of the insurance defendants or that such acts increased their risk of harm. {¶ 15} As discussed above, the gravamen of Bevan Group 9's allegations is that the insurance defendants failed to ensure the safety of each plaintiff's workplace by their "inaction and acquiescence," despite their knowledge of the hazards of asbestos. While the complaint devotes numerous paragraphs to the insurance defendants' extensive knowledge of the risks and dangers of asbestos and their failure to disclose, warn, and educate on these risks, Ohio law does not recognize a claim for negligent undertaking based on the increased risk of harm theory when the underlying conduct is a failure to act. See Wissel v. Ohio High SchoolAthletic Ass'n (1992), 78 Ohio App.3d 529, 540; Powers v. Boles (1996), 110 Ohio App.3d 29, 36. Rather, liability attaches only when the undertaking involves an affirmative act which increased the risk of harm. Powers, supra, at 36 ("negligent undertaking is about sins of commission, not sins of omission"). Although the insurance defendants allegedly did nothing to diminish the risk of asbestos in the workplace, their inaction negates any claim that the plaintiffs faced an increased risk of harm. See Wissel, supra, at 540 ("the defendant's negligent performance must somehow put the plaintiff in a worse situation than if the defendant had never begun the performance"). {¶ 16} Likewise, the complaint fails to satisfy the reliance element of subsection (c) of the Restatement Section 324A. To properly allege reliance, it was incumbent upon the Bevan Group to plead that each plaintiff relied on an undertaking or promise that the insurance defendants the insurance defendants communicated to them. See, e.g.,Powers, supra; Good v. Ohio Edison Co. (6th Cir. 1998), 149 F.3d 413. {¶ 17} In the instant case, the complaint contains no allegation that the Bevan Group 9 relied on the alleged undertakings of the insurance defendants. Indeed, the complaint fails to establish any connection between the Bevan Group 9 and the insurance defendants. Rather, in the complaint, Bevan Group 9 asserts that the insurance defendants "encouraged, enticed and solicited Plaintiffs, their employers, premise owners and the government and the public to rely on the Insurance Defendants for protection, safety, and security." (Varner Compl. at ¶ 207). Because the standard requires actual reliance — not mere encouragement, enticement, or solicitation to rely — we find that Bevan Group 9 failed to satisfy the reliance element. Moreover, in light of the Bevan Group 9's concession that they relied on their employers and premises owners to maintain a work environment safe from asbestos, we find that they cannot allege any facts demonstrating reliance. (See Bevan Group 9's Brief at p. 5.) {¶ 18} Accordingly, in light of Bevan Group 9's failure to plead any facts demonstrating that the insurance defendants voluntarily assumed a duty, that the insurance defendants increased the Bevan Group 9's risk of harm from asbestos, or that the Bevan Group 9 relied on the alleged actions of the insurance defendants, we find that the trial court properly dismissed the negligent undertaking claim. Spoliation of Evidence {¶ 19} Bevan Group 9 argues that the trial court erred in dismissing their claim for spoliation of evidence. {¶ 20} A claim for spoliation of evidence requires proof of five elements: (1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable, (3) willful destruction of evidence by defendant designed to disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5) damages proximately caused by the defendant's acts. Smith v. HowardJohnson, 67 Ohio St.3d 28, 29, 1993-Ohio-229. {¶ 21} Bevan Group 9's spoliation claim is based on the insurance defendants' alleged sponsorship of a fraudulent "state of the art" defense in asbestos litigation involving their insureds. Bevan Group 9 avers that the insurance defendants withheld information during discovery and entered into "coercive protective orders" as well as promoted false testimony, causing plaintiffs "to expend thousands of dollars in research, time, and expert testimony" to disprove the defense. {¶ 22} However, construing these averments as true, we find them insufficient to satisfy the third element for a spoliation claim. Here, these claims are predicated on the insurance defendants' alleged concealment and misrepresentation of information in previous litigation.6 previous litigation.6 The complaint contains no factual allegation that any insurance defendant "destroyed" or altered any documents relevant to the Bevan Group 9's claims as a means to disrupt the present litigation. We find no authority to allow a spoliation claim based on a defendant's conduct in another litigation which did not involve the plaintiff pursuing the claim. {¶ 23} Further, we disagree with Bevan Group 9's reliance on Davis v.Wal-Mart Stores, Inc., 93 Ohio St.3d 488, 2001-Ohio-1593, for the proposition that a spoliation claim may be based solely on concealment of evidence through judicial protective orders or false and misleading testimony provided during discovery depositions and at trial, without any factual allegation of a destruction of evidence. In refusing to interpretDavis, supra, as expanding the scope of a spoliation claim, the Fourth Appellate District in Tate v. Adena Regional Med. Ctr.,155 Ohio App.3d 524, 2003-Ohio-7042, ¶¶ 24-30, recently explained: The issue in Davis was whether a spoliation claim was barred by thedoctrine of res judicata. The spoliation claim itself was not at issueand Justice Pfeifer's observations were mere dicta. n 6 Additionally, our Second District colleagues recently considered thesame issue and declined to expand spoliation to include giving falsetestimony. See Pratt v. Payne, 153 Ohio App.3d 450, 2003-Ohio-3777. TheCourt in Pratt acknowledged the language used in the majority thelanguage used in the majority opinion of Davis but, after an exhaustivereview of case law that applied spoliation solely in the context ofdestruction of evidence, the court concluded that the Ohio Supreme Courtwould not have overruled such `lengthy historical precedent' withoutbeing more explicit. Id. at ___ 21 and 24. n6 Justice Cook noted that the language in the majority opinion seemedto broaden `willful destruction of evidence' to includemisrepresentation, interference or concealment. 93 Ohio St.3d at 495.(Cook, J., dissenting). Nevertheless, Justice Cook also concluded thatthis was dicta and should not be misconstrued as broadening thedefinition of `willful destruction.' Id. at 496." {¶ 24} We find this reasoning to be persuasive and likewise conclude that Bevan Group 9's averments are insufficient to state a claim for spoliation. Concert of Action and Conspiracy {¶ 25} Bevan Group 9 argues that the trial court erroneously dismissed their claims for concert of action and conspiracy on the basis that they failed to state any viable underlying claim. While Bevan Group 9 acknowledges that neither claim can survive a motion to dismiss without an underlying tort supporting the claim, they argue that the trial court wrongly concluded that the claims were premised on fraud, as opposed to the properly pled negligent undertaking and spoliation claims. However, having already found that Bevan Group 9 has failed to state claims for either negligent undertaking or spoliation, these claims likewise fail. See Gosden v. Louis (1996), 116 Ohio App.3d 195, 220 (defendant's liability for conspiracy depends on participation in "an underlying unlawful act which is act which is actionable in the absence of a conspiracy") and State Auto. Mut. Ins. Co. v. Rainsberg (1993),86 Ohio App.3d 417, 420-421 (an underlying act of tortious conduct is essential to any concert of action claim). {¶ 26} Accordingly, we overrule the first assignment of error. Due Process {¶ 27} In its second assignment of error, Bevan Group 9 argues that it had no notice or opportunity to be heard on its claims against those defendants who did not file a dispositive motion. It claims that the trial court's treatment of the motions filed as a collective motion on behalf of all insurance defendants violated basic principles of due process. However, the record reveals that the trial court's case management order expressly provided that "[e]ach defendant shall be deemed to have joined in any other defendant's motion where the granting of the motion would benefit it or all defendants generally. Duplicative motions or motions solely adopting the reasoning of the filing defendant's motion shall not be filed." In light of this notice and the hearing the trial court held on the motions, we find that the Bevan Group 9 was not prejudiced by the trial court's collective treatment of the motions. {¶ 28} Accordingly, the second assignment of error is overruled. Judgment affirmed. It is ordered that appellees recover of appellants 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 Cuyahoga County Court of Common Pleas 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. Rocco, J. and Kilbane, J. Concur 1 The individual plaintiffs include Dale Bugg, Charles Gilchrist, Billy Gillette, Luanne Parker, Lee Rettig, McKinnley Sanders, and Yvonne Varner. 2 The 47 insurance defendants include: (1) ACE American Insurance Company, (2) ACE Property and Casualty Company, (3) Aetna Life Insurance and Annuity Company, (4) Aetna Life Insurance Company, (5) Allianz Life Insurance Company of North America, (6) Allianz Life Insurance Company, (7) Allstate Insurance Company, (8) American Insurance Association, Inc., (9) American Motorists Insurance Company, (10) Century Indemnity Company, (11) Chubb Indemnity Company, (12) Cigna Corporation, (13) Citigroup, Inc., (14) Continental Casualty Company, (15) Electric Insurance Company, (16) GE Life and Annuity Assurance Company, (17) General Electric Capital Assurance Company, (18) Hartford Accident and Indemnity Company, (19) Hartford Casualty Insurance Company, (20) Hartford Fire Insurance Company, (21) Hartford Life and Accident Insurance Company, (22) Hartford Life and Annuity Insurance Company, (23) Hartford Life Insurance Company, (24) Hartford Underwriters Insurance Company, (25) Indemnity Insurance Company of North America, (26) ING Life Insurance and Annuity Company, (27) John Hancock Life Insurance Company, (28) Liberty Mutual Insurance Company, (29) Lumbermens Mutual Casualty Company, (30) Marsh USA, Inc., (31) Maryland Casualty Company, (32) Metropolitan Life Insurance Company, (33) Onebeacon America Insurance Company, (34) Onebeacon Insurance Company, (35) The Prudential Insurance Company of America, (36) St. Paul Fire Marine Insurance Company, (37) The Fidelity and Casualty Company of New York, (38) The Hartford Steam Boiler Inspection and Insurance Company, (39) The Hartford Steam Boiler Inspection and Insurance Company of Connecticut, (40) The Travelers Indemnity Company, (41) The Travelers Insurance Company, (42) The Travelers Life and Annuity Company, (43) Travelers Casualty and Surety Company, (44) Travelers Casualty and Surety Company of America, (45) Travelers Property and Surety Company, (46) United States Fidelity and Guaranty Company, and (47) Zurich American Insurance Company. 3 These complaints were grouped together at the trial court for purposes of judicial economy because the same counsel represented each individual plaintiff and the claims asserted against the defendants were nearly identical. 4 The "complaint" refers to the second amended complaint filed inVarner v. Ford Motor Co., et al., Case No. CV-501703, on which the trial court relied in its decision. However, the trial court also dismissed all the complaints of the remaining Bevan Group 9 plaintiffs because the claims asserted in the Varner complaint were applicable in each case. On appeal, Bevan Group 9 references the first amended complaint in Rettig v.Ford Motor Co., et al., Case No. CV-508629, but cites to the Lexis Nexis filing identification number of the Varner complaint. Because the complaints contain essentially the same allegations, we will refer to theVarner complaint for purposes of this opinion. 5 While the trial court's order pertained to only the insurance defendants' claims, thereby leaving the industrial defendants as parties to the underlying action, we find that the trial court's judgment constitutes a final appealable order because the claims against the industrial defendants are independent and the trial court included Civ.R. 54(B) language in its order. 6 While the complaint contains a single charge that the insurance defendants "made the conscious decision to vigorously defend their [insureds in asbestos] cases by destroying documents," this allegation is totally unsupported. The complaint identifies no documents that were destroyed. Further, the allegation pertains to the insurance defendants' conduct in previous litigation not involving the Bevan Group 9.

2016-07-06 06:42:03.157836+00

OPINION Stephen J. Lunsford appeals from a judgment of the Montgomery County Court of Common Pleas which convicted him of two counts of gross sexual imposition and sentenced him to one year of incarceration. Lunsford was indicted on August 30, 1999 for one count of rape in violation of R.C. 2907.02(A)(2), one count of gross sexual imposition in violation of R.C. 2907.05(A)(1), and one count of gross sexual imposition in violation of R.C. 2907.05(A)(4). The allegations related to Lunsford's actions with two minor females. On April 3, 2000, Lunsford pled guilty to the two counts of gross sexual imposition and the count of rape was dismissed. On May 25, 2000, the trial court sentenced Lunsford to six months of incarceration for the count of gross sexual imposition in violation of R.C. 2907.05(A)(1) and one year of incarceration for the count of gross sexual imposition in violation of R.C. 2907.05(A)(4). The sentences were ordered to be served concurrently. The trial court also found Lunsford to be a sexually oriented offender. Lunsford now appeals his conviction and sentence. He raises a single assignment of error. THE TRIAL COURT IMPROPERLY ALLOWED THE VICTIM IMPACT STATEMENT WITHOUT MAKING AVAILABLE THE STATEMENT TO THE DEFENDANT OR HIS ATTORNEY PRIOR TO SENTENCING. Lunsford argues that the trial court improperly allowed the victim advocate to read a victim impact statement during the sentencing hearing without making such statement available to him prior to his sentencing. Lunsford's argument seems to confuse two distinct statutes, R.C. 2947.051 and R.C. 2930.14. He cites "R.C. 2947.05(1)" in his appellate brief, but no such statute exists. We believe that he intended to cite R.C. 2947.051. It appears to us, however, that the victim advocate's statement about which he complains was made pursuant to R.C. 2930.14. Thus, we will discuss his argument under both statutes. R.C. 2947.051(A) states, "[i]n all criminal cases in which a person is convicted of or pleads guilty to a felony, if the offender, in committing the offense, caused * * * or created a risk of physical harm to the victim * * *, the court, prior to sentencing the offender, shall order the preparation of a victim impact statement by the department of probation" and "shall consider the victim impact statement in determining the sentence to be imposed upon the offender." The record reveals that a "VICTIM IMPACT STATEMENT" for each of the victims was prepared and was included in the pre-sentence investigation report in this case. The victim advocate's statement at the sentencing hearing did not relate to the language in her victim's "VICTIM IMPACT STATEMENT." Thus, it appears that R.C. 2947.051 is not applicable to Lunsford's argument regarding the victim advocate's statement. Further, even if that statute was applicable, R.C. 2947.051(C) requires that the victim impact statement be kept confidential and states, "the court may furnish copies of the statement to * * * the defendant [and] the defendant's counsel" prior to sentencing. (Emphasis added.) Thus, the trial court would not have been required, pursuant to R.C. 2947.051, to give Lunsford copies of the statement. R.C. 2930.14 requires that the trial court allow the victim of a crime to make a statement at the sentencing hearing before the offender is sentenced. If the victim is a minor, she can choose another person to serve as her victim's representative and to make her statement. See R.C.2930.02(A). At the sentencing hearing, the trial court asked the defendant and his counsel if they wished to say anything. The court then asked the prosecutor if he wished to say anything, and he stated that the victim advocate wished to speak on behalf of one of the victims. In her statement, the victim advocate explained that although the victim and her family were not present, they wanted the court to know that "they were very interested in the case" and hoped the court would "do the just thing." She stated that the victim was struggling to learn to trust again. She also said that the victim hoped that Lunsford understood that he needed to "learn how to draw the boundaries." Because the victim advocate's statement was made at the sentencing hearing and did not relate to the language in the "VICTIM IMPACT STATEMENT," it appears to us that the victim advocate's statement was given pursuant to R.C. 2930.14. When a victim or her representative makes a statement prior to the defendant's sentencing, "[t]he court may give copies" of such statement to the defendant and his counsel. (Emphasis added.) R.C. 2930.14. Thus, the trial court was not required to give copies of the victim advocate's statement to the defendant and his counsel prior to his sentencing. The assignment of error is overruled. The judgment of the trial court will be affirmed. _______________ WOLFF, P. J. BROGAN, J. and YOUNG, J., concur.

2016-07-06 06:42:02.637947+00

DECISION Appellant, Deen Sons, Inc., appeals from a judgment of the Franklin County Court of Common Pleas, affirming an order of appellee, the Ohio Liquor Control Commission ("commission"), imposing a suspension, or alternatively a forfeiture, against appellant for selling alcohol to a person under the age of twenty-one. Appellant owns and operates a "Dairy Mart" business, located at 5709 Maple Canyon Drive, Columbus, and appellant is the holder of a C1 and C2 liquor permit, authorizing the sale of liquor on the premises. On August 20, 1999, the Ohio Department of Public Safety/Liquor ("department") issued a notice of hearing to appellant, alleging a violation of R.C.4301.69. Specifically, the notice alleged that, on September 11, 1998, appellant's employee, Allwell Akatobi, "did sell in and upon permit premises" beer to Nicholas Pezzutti "who was then under 21 years of age." On September 21, 1999, the matter came for hearing before the commission. Part of the evidence admitted at the hearing included an investigative report prepared by agents of the department's investigative unit. The facts set forth in the report indicate the following. On September 11, 1998, two agents were conducting a routine field investigation at the permit premises. On that date, the agents observed "a youthful looking male, later identified as Nicholas L. Pezzutti," enter the premises. The investigative report listed Pezzutti's date of birth as April 18, 1981. Pezzutti proceeded to a beer cooler, and then approached the checkout counter with a six-pack of "Budweiser" beer. A male clerk, Allwell Akatobi, requested identification from Pezzutti. During this time, Akatobi was on the telephone, and he "took a very brief look at the identification" and handed it back to Pezzutti. Akatobi then rang up the sale and took money from Pezzutti for the purchase. Following the sale, the agents approached Pezzutti and requested to see his identification. Pezzutti handed one of the agents an Ohio driver's license bearing the name of Shane Pezzutti, and reflecting a birth date of April 14, 1977. The agent "established that the license was expired and that it did not resemble N. Pezzutti in several aspects." At the hearing before the commission, Pezzutti testified that he purchased Budweiser beer at the store on September 11, 1998, after presenting identification to the cashier. Pezzutti stated that the identification he provided was "my brother's old license that I found in his room." (Tr. 8.) Pezzutti stated that the license was expired. He further stated that he resembled his brother. Appellant's employee, Akatobi, also testified at the hearing. Akatobi acknowledged that he was aware, at the time of the sale, that the license was expired. By order mailed on October 5, 1999, the commission found appellant in violation of R.C. 4301.69, and ordered appellant to pay a forfeiture in the amount of $1,000 or, alternatively, to serve a ten-day suspension. On October 21, 1999, appellant filed a notice of appeal with the trial court from the commission's order. By decision and entry filed July 7, 2000, the trial court affirmed the order of the commission. On appeal, appellant sets forth the following single assignment of error for review: The Court of Common Pleas of Franklin County, Ohio, erred in ruling that the Decision of the Ohio Liquor Control Commission was supported by reliable, probative, and substantial evidence. In considering an administrative appeal under R.C. 119.12, the standard of review to be applied by the trial court is whether the commission's order is supported by reliable, probative and substantial evidence and is in accordance with law. An appellate court's review "is limited to determining whether the common pleas court abused its discretion in finding that there was reliable, probative, and substantial evidence in the record to support the order of the commission." Leo G. Kaffalas,Inc. v. Ohio Liquor Control Commission (1991), 74 Ohio App.3d 650, 652. Appellant contends that the evidence at the hearing before the commission indicated that appellant's employee, at the time of the sale to Pezzutti, requested identification from Pezzutti and was shown a driver's license. Appellant further asserts that appellant's employee made a bona fide effort to ascertain the identity of the purchaser, and that the employee had reasonable grounds to believe that Pezzutti was of legal age. Appellant contends that the actions of its employee were sufficient to satisfy the requirements of the defense available under R.C. 4301.639. In general, R.C. 4301.69, prohibiting the sale of liquor to underage persons, "is a strict liability offense, subject to the affirmative defense prescribed in R.C. 4301.639." State v. Jones (1989),57 Ohio App.3d 155, 156. R.C. 4301.639 states as follows: (A) No permit holder, agent or employee of a permit holder, or any other person may be found guilty of a violation of any section of this chapter or any rule of the liquor control commission in which age is an element of the offense, if the liquor control commission or any court of record finds all of the following: (1) That the person buying, at the time of so doing, exhibited to the permit holder, the agent or employee of the permit holder, or the other person a driver's or commercial driver's license or an identification card issued under sections 4507.50 to 4507.52 of the Revised Code showing that the person buying was then at least twenty-one years of age if the person was buying beer as defined in section 4301.01 of the Revised Code or intoxicating liquor or that the person was then at least eighteen years of age if the person was buying any low-alcohol beverage; (2) That the permit holder, the agent or employee of the permit holder, or the other person made a bona fide effort to ascertain the true age of the person buying by checking the identification presented, at the time of the purchase, to ascertain that the description on the identification compared with the appearance of the buyer and that the identification presented had not been altered in any way; (3) That the permit holder, the agent or employee of the permit holder, or the other person had reason to believe that the person buying was of legal age. Thus, it has been noted that, in order to establish an affirmative defense pursuant to R.C. 4301.639, the appellant must demonstrate that "the purchaser presented identification at the time of the sale; that appellant's employee checked the identification in a bona fide effort to ascertain the true age of the purchaser at the time of sale; and that the employee had reason to believe that the purchaser was then of legal age."Markho, Inc,. dba One Stop Carry-Out v. Ohio Liquor Control Comm. (Dec. 16, 1997), Franklin App. No. 97APE04-476, unreported. Further, "[u]nless all three of the requirements of R.C. 4301.639 are met, the statutory defense is not established." Id. In the present case, the trial court, in affirming the commission's order, noted that the driver's license presented was expired, and that the cashier admitted that he was aware of that fact. The court found that the commission could have reasonably concluded that the good-faith defense was not applicable where the clerk failed to make further inquiry after observing that the license was expired. Upon review, we find no abuse of discretion by the trial court. A similar issue was raised in Convenient Food Mart, Inc. v. LiquorControl Comm. (Sept. 16, 1994), Lake App. No. 93-L-138, unreported, in which the appellant was charged with selling and furnishing beer to an underage person. Under the facts of that case, the investigator's report indicated that Joseph Maruschak, eighteen years of age, purchased beer at appellant's place of business using another individual's driver's license. The investigator's report established that appellant's employee asked Maruschak for identification and was given an expired driver's license. The commission rejected appellant's claim that it had established the affirmative defense under R.C. 4301.639. On appeal, the trial court found that reliable, probative and substantial evidence supported the commission's order, noting in part that "the sales clerk only glanced at the driver's license and failed to notice * * * that the license was expired." Id. On further appeal, the appellate court found that the trial court did not abuse its discretion in affirming the commission's order. The court held that "[t]he mere fact that appellant's employee asked for and made some effort to inspect the purchaser's license does not establish the good faith defense as a matter of law." Id. Rather, "[i]t was not unreasonable for the trial court to find there existed sufficient evidence in the record that the seller did not make a bona fide effort to ascertain the true age of the purchaser, or that the seller did not have reason to believe the purchaser was of legal age." Id. Similarly, in the instant case, appellant's employee, although observing that the driver's license presented by the customer was expired, made no further inquiry of this individual, who was four years younger than the date of the person on the license. This court has previously noted that "R.C. 4301.639(A) requires that a proper identification must be shown at the time of purchase." Willie's JointVenture dba Lost City of Atlantis v. Liquor Control Comm. (Sept. 28, 1993), Franklin App. No. 93AP-497, unreported. Here, under the facts presented, the commission could have concluded that, despite the request by the clerk to see identification, the seller nevertheless failed to make a bona fide effort to determine the true age of the purchaser.Convenient Food Mart, supra. Accordingly, we find no abuse of discretion by the trial court in affirming the decision of the commission. Based upon the foregoing, appellant's single assignment of error is overruled and the judgment of the trial court is hereby affirmed. Judgment affirmed. LAZARUS and KENNEDY, JJ., concur.

2016-07-06 06:42:02.839261+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellants, Oscar L. Wrinkle and Raymond Hague, appeal from the decision of the Lorain County Court of Common Pleas, granting Appellee, Blast Abrade, Inc.'s motion for summary judgment. We affirm. {¶ 2} This case involves a boating accident that occurred in the early morning of July 1, 2000. The passengers on the boat included Appellee, Tyler Cotton, president of Blast Abrade, Inc., Appellants, Hague and Wrinkle, technicians for Blast Abrade, and Mr. Callaway, an independent contractor and business associate of Blast Abrade. Appellee, Tyler Cotton ("Cotton") was driving his boat when it collided with a breakwall, causing injuries to the Appellants. The instant lawsuit ensued on July 16, 2001. Appellants sued Cotton individually and also in his capacity as shareholder, officer and member of the Board of Directors of Blast Abrade, Inc., as well as Cotton's employer, Blast Abrade, Inc. and its insurance company under a theory of respondeat superior. {¶ 3} On June 19, 2002, Appellee, Blast Abrade Inc., filed a motion for summary judgment claiming that it was not vicariously liable for the injuries to the Appellants because the boating trip was not within the course and scope of Cotton's employment. On October 30, 2003, the trial court granted Blast Abrade, Inc.'s Motion for Summary Judgment and, in addition, dismissed any remaining insurance related claims as moot. Appellants appeal asserting one assignment of error for our review. ASSIGNMENT OF ERROR "The trial court erred as a matter of law in granting [Appellees'] motion for summary judgment." {¶ 4} In their sole assignment of error, Appellants maintain that the trial court erred in granting summary judgment in favor of Blast Abrade, Inc. They claim that a genuine issue of material fact exists as to whether Tyler Cotton was acting within the scope of his employment with Blast Abrade, Inc. when the boating accident occurred. {¶ 5} Appellate courts consider an appeal from summary judgment under a de novo standard of review. Grafton v. OhioEdison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336. A de novo review requires an independent review of the trial court's decision without any deference to the trial court's determination. Brown v. Scioto Cty. Bd. of Commrs. (1993),87 Ohio App.3d 704, 711. Thus, this Court applies the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party. Civ.R. 56(C); Norris v.Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2. {¶ 6} Summary Judgment is proper under Civ.R. 56 when: (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can only reach one conclusion, and that conclusion is adverse to the non-moving party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317,327. {¶ 7} To prevail on a motion for summary judgment, the moving party must be able to point to evidentiary materials that 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.Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. Civ.R. 56(E) provides that after the moving party has satisfied its burden of supporting its motion for summary judgment, the non-moving party may overcome summary judgment by demonstrating that a genuine issue exists to be litigated for trial. State exrel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449,1996-Ohio-211. {¶ 8} Blast Abrade, Inc. may be vicariously liable to Appellants for Cotton's negligence under the doctrine of respondeat superior if the tort (the boating accident) was committed in the scope of Cotton's employment. See Strock v.Pressnell (1988), 38 Ohio St.3d 207, 217. If however, reasonable minds can only conclude that the tort occurred outside the scope of Cotton's employment, then Blast Abrade, Inc. would not be vicariously liable to Appellants and summary judgment in its favor would be proper. See Osborne v. Lyles (1992),63 Ohio St.3d 326, 330. {¶ 9} Appellants argue that Cotton organized the boating trip in furtherance of company business and he was acting within the course and scope of his employment when the accident occurred. They maintain that Blast Abrade, Inc. is vicariously liable for the negligence of its employee, and thus it was in error for the trial court to grant summary judgment on its behalf. Appellants contend that at a minimum there remains a genuine issue of material fact as to whether the boating trip was merely a fishing trip, as Appellees claim, or whether it was a business trip. {¶ 10} Appellees maintain that they are entitled to judgment as a matter of law since the boating accident was clearly outside of Cotton's scope of employment with Blast Abrade, Inc. They claim that Cotton was not operating a company vehicle, the company did not finance any part of the trip or receive any benefit from the trip, and the fishing trip was not scheduled for the furtherance of any Blast Abrade, Inc. business. Under these circumstances, Appellees state that Blast Abrade, Inc. cannot be held liable under the theory of respondeat superior and thus, summary judgment is proper. {¶ 11} The propriety of summary judgment depends on whether Cotton was acting within the scope of his employment when the accident occurred. Whether an employer will be vicariously liable for the torts of its employee depends on whether the tort was committed within the scope of employment. Byrd v. Faber (1991),57 Ohio St.3d 56, 58. "When dealing with torts committed by an employee, the crucial element is whether the conduct was `calculated to facilitate or promote the business for which the servant was employed.'" (citations omitted.) Roberts v. SohioDiv., B.P. Ohio (June 24, 1992), 9th Dist. No. 15288, at 4. {¶ 12} Typically, the question of whether an activity is within the "scope of employment" is an issue of fact to be decided by the jury. Posin v. A.B.C. Motor Court Hotel (1976),45 Ohio St.2d 271, 278. However, it becomes a question of law to be decided by the court when reasonable minds can come to but one conclusion regarding the scope of employment. Osborne,63 Ohio St.3d at 330. See also Benner v. Dooley (Aug. 2, 2000), 9th Dist. No. 99CA007448, at 4. {¶ 13} In Akron v. Holland Oil Co., 102 Ohio St.3d 1228,2004-Ohio-2834, at ¶ 12-15, the Ohio Supreme Court looked to the Restatement of the Law 2d, Agency (1957), Section 228, to define what conduct was included in "scope of employment." The Restatement provides that: "conduct of an employee is within the `scope of employment' when: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master." Id. {¶ 14} In the case at hand, there is no evidence that the boating trip was within Cotton's scope of employment at Blast Abrade, Inc., or that Cotton organized the trip with the purpose of serving Blast Abrade, Inc. Blast Abrade, Inc. is a manufacturer's representative which sells industrial blasting machines and service contracts. Cotton's duties at Blast Abrade, Inc. are limited to overseeing operations, completing paperwork, placing orders and being executive officer. {¶ 15} Late Friday afternoon of June 30, 2000, Cotton and Appellants met at Romp's Marina in Vermillion, Ohio and boarded Cotton's boat. They fished and drank beer for a few hours on the boat, then docked at Kelly's Island where they went to the Casino Bar and drank additional alcoholic beverages. On the way back to Vermillion from Kelly's Island, Cotton negligently crashed his boat into a breakwall. These activities are outside of the conduct that Cotton was employed to perform. Further, the accident occurred at 1:00 a.m. on a Saturday morning, which is outside the authorized time and space limits of Blast Abrade, Inc. See, Holland Oil at ¶ 12-15. {¶ 16} Appellants allege that the fishing trip was organized to discuss business matters. If the conduct of an employee is actuated by a purpose to serve his master, the conduct may fall within the employee's scope of employment. Osborne,63 Ohio St.3d at 330. The burden is on the Appellants to adduce evidence to show that Cotton was acting within the scope of his employment for the purpose of serving his employer. See Senn v. Lackner (1952), 157 Ohio St. 206, paragraphs one and two of the syllabus. In this case there is no evidence that Cotton organized the fishing trip with a purpose to serve his employer. {¶ 17} Cotton testified that he arranged the fishing trip because he had promised to take Wrinkle, Hague, and Callaway fishing. Hague and Wrinkle were not required to go on the trip as part of their jobs at Blast Abrade, Inc. Cotton testified that he never indicated to anyone that he wanted to discuss business on the outing; he stated that the sole purpose of the trip was to go fishing. Appellants may have assumed that the purpose of the trip was to discuss business, but their assumptions do not have any bearing on whether Cotton had organized the trip to further Blast Abrade, Inc.'s business or not. {¶ 18} On a previous occasion, Callaway discussed with Cotton a possible lease for space by Blast Abrade, Inc. in a building Callaway was in the process of purchasing. From the evidence, the only `business' Appellants can point to as being discussed at any part of the trip was that at one point, Cotton asked Callaway how the "building [was] coming along." Callaway responded to this that there was "no change." {¶ 19} From the Appellants' own testimonies it appears that business was not a topic of discussion on the trip. Wrinkle testified that he did not remember any business being discussed on the trip. He stated that he knew of no connection between the fishing trip and the building Cotton and Callaway were talking about sharing. When asked whether the discussion on the trip involved business, Appellant Hague responded: "I don't know if it was discussion, I'm not 100 percent sure, but [Callaway] was going to buy property and [Cotton] was thinking about renting off of [Callaway]." Neither Cotton's passing inquiry on how the building was coming along nor Hague's knowledge that Cotton was thinking of entering into a lease qualifies the trip as a business trip. {¶ 20} The evidence shows that the Cotton and Appellants went fishing, they drank beer, and went to a casino bar; this conduct clearly falls outside of the duties Cotton was employed to perform at Blast Abrade, Inc. The trip took place after business hours on a weekend, and the tort occurred at 1 am in Lake Erie, substantially outside the authorized time and space limits of Blast Abrade Inc.'s business. Further, the trip was not actuated by a purpose to serve Blast Abrade. Cotton testified that he organized the trip merely to go fishing, and not for the purpose of furthering Blast Abrade Inc.'s business. Cotton and Appellants did not engage in any business transactions, deals or negotiations. {¶ 21} Appellants have not set forth evidence sufficient to establish that there is a genuine issue of fact as to whether Cotton was acting within the scope of his employment when the boating accident occurred. The issue on summary judgment is whether there is a dispute as to a material fact. See Civ.R. 56,Myocare Nursing Home, Inc. v. Fifth Third Bank,98 Ohio St.3d 545, 2003-Ohio-2287, at ¶ 33. Unless the dispute is material in nature, the motion for summary judgment should lie. Id. It is clear that fishing, drinking and visiting a casino bar in the early hours of a Saturday morning are of no benefit to Blast Abrade, Inc., and are outside Cotton's duties to his employer. This court finds that reasonable minds could only conclude that Cotton's negligence in crashing his boat into a breakwall was outside his scope of employment. See Osborne,63 Ohio St.3d at 330. {¶ 22} The Ohio Supreme Court in Osborne,63 Ohio St.3d at 329, held that in order for an employer to be liable under a doctrine of respondeat superior, the employee's tort must have been committed within the scope of the employment; moreover, the behavior giving rise to the tort must have been calculated to facilitate or promote the business for which the servant was employed. {¶ 23} As established above, there is no evidence that the fishing trip was within Cotton's scope of employment at Blast Abrade, Inc. Furthermore, there is no evidence that Blast Abrade, Inc. gained any benefit from the fishing trip. An employer is not liable for the off-duty actions of an employee where the employer receives no benefit from the employee's conduct. Byrd,57 Ohio St.3d at 59. "A servant who departs from his employment to engage in affairs of his own relieves the master from liability for his acts." (citations omitted.) State ex rel. Celebrezze v.Environmental Enterprises, Inc. (1990), 53 Ohio St.3d 147, 157. {¶ 24} Cotton was engaging in his own affairs and not those of Blast Abrade, Inc. when the accident occurred, relieving his employer from liability for his actions. The boat was Cotton's personal asset, which he paid for himself. Cotton paid for the boat's fuel to be used on the trip. Wrinkle, Hague, and Callaway provided the bait, beer and some cash to reimburse Cotton for fuel. Blast Abrade, Inc. received no benefit from the June 30-July 1 fishing trip. It did not receive fees from the trip; it did not pay for the trip or organize the trip. The fishing trip did not involve Blast Abrade, Inc. business in any way. {¶ 25} If the employee's act has no relationship to the employer's business, the employer-employee relationship is severed and the employer is not liable for such actions. Thomasv. Ohio Dept. of Rehab. Corr. (1988), 48 Ohio App.3d 86, 89. In such a case, where the employee departs from the business of the employer, the employee is acting of his or her own violation and will, not as an employee but as an independent person. LimaRy .Co. v. Little (1902), 67 Ohio St. 91, 98. It is clear that Cotton was acting as an independent person and not as an employee when he took the Appellants fishing and drinking. {¶ 26} This court finds that, as a matter of law, a non-business sponsored fishing/drinking and boating foray in which no business was furthered cannot create vicarious liability to an employer. Notwithstanding the fact that business may have been mentioned, it was not discussed in the furtherance of any Blast Abrade, Inc.'s business. Therefore, Blast Abrade, Inc. is not liable for Cotton's negligence in crashing his boat into the breakwall. {¶ 27} As established above, Cotton's actions were clearly outside the scope of his employment, and reasonable minds could not find otherwise. There are no genuine issues of material fact in dispute. Cotton's actions leading to this lawsuit were out of his own will. Blast Abrade, Inc. received no benefit from the actions of its employee. Consequently, Blast Abrade, Inc. is not vicariously liable to Appellants under the theory of respondeat superior, and it is entitled to summary judgment as a matter of law. Accordingly, we overrule Appellants' assignment of error. {¶ 28} We overrule Appellants' assignment of error and affirm the judgment of the Lorain County Court of Common Pleas. 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 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 Appellant. Exceptions. Whitmore, J., Concurs.

2016-07-06 06:42:02.902329+00

Appellant, Patricia Lykins, appeals from the judgment of the Trumbull County Court of Common Pleas, Division of Domestic Relations. Appellant and appellee, Daniel Lykins, were married on October 15, 1983. Three children were born as issue of the marriage: Christopher, born May 30, 1990; Austin, born February 18, 1993; and Brennan, born February 19, 1995. After twelve years of marriage, the parties were granted a divorce on March 25, 1996. On April 22, 1998, appellee filed a motion to decrease child support, alleging a substantial change in circumstances. A hearing on appellee's motion was held before a magistrate, on June 9, 1998, in which the parties submitted 1998 wage information, and appellant submitted a child support computation worksheet. The magistrate recommended that appellee be ordered to pay $637.92, plus poundage in child support commencing June 1, 1998, based on the following reasoning: "At present the Def. is employed and earns approx. $22,389 gross per year from employment. The Plt. is employed and earns approx. $23,946. gross per year from employment. There is a real issue as to the work-related daycare expenses for the minor children. The Plt. contends she needs approx. $12,246 annually for said daycare. At this level, and based upon the Support Calculation Worksheet submitted by Plt's legal counsel, the Def. would be paying approx. 2/3 of his net income per month as/for child support ($953/$1450). That to order the foregoing would violate Section 303(A) of the Consumer Credit Protection Act, 15 U.S.C. § 1673(b). Further, the court finds that the daycare used by Plt. is unreasonable. The court will allow the sum of $3,750 for annual daycare." On July 10, 1998, appellant filed objections to the magistrate's decision pursuant to Civ.R. 53, claiming that she was not given the opportunity to submit evidence verifying her child-care expenses, and that the $3,750 figure the magistrate used in the child support computation worksheet for child care expenses was an arbitrary figure not based upon any evidence. On July 17, 1998, the trial court made the following order: "(1) The Objections are overruled on the Merits, and further, "(2) All orders previously issued by the Magistrate to remain effective. "That for the purposes of clarification, and to clear up the record, the Def's child support for the 3 minor children of the parties shall be as follows: "(1) From 8/94 to 3/96 $590. per month; "(2) From 4/96 to 10/21/97 $368. per month; "(3) From 10/21/97 to 5/31/98 $601.79 per month; and "(4) Pursuant to Ex. "A", attached hereto and incorporated herein, the sum of $637.92, plus poundage via a wage withhold order commencing 6/1/98." From this judgment, appellant assigns the following errors: "[1.] The trial court abused its discretion in upholding the magistrate's decision finding appellant's daycare expenses to be unreasonable without taking evidence and utilizing an arbitrary amount as appellant's daycare allowance to determine child support. "[2.] The trial court abused its discretion in upholding the magistrate's decision finding that a child support order in the amount of $953.00 per month pursuant to the child support calculation worksheet submitted by appellant violates the Consumer Credit Protection Act." Before we can address appellant's assignments of error, we must take the time to address another issue. In reviewing the record of this appeal, we have determined that this case must be remanded to the trial court to redetermine the child support order since it failed to follow the applicable law on modification of child support orders. As a prerequisite to modifying a child support order, a trial court must determine that there has been a substantial change in circumstances that was not contemplated at the time of the original, or most recent, support order. In reMathers (Mar. 26, 1993), Geauga App. No. 92-G-1707, unreported. R.C. 3113.215(B)(4) states: "If an obligor or obligee under a child support order requests the court to modify the amount of support required to be paid pursuant to the child support order, the court shall recalculate the amount of support that would be required to be paid under the support order in accordance with the schedule * * *, and if that amount as recalculated is more than ten per cent greater than or more than ten per cent less than the amount of child support that is required to be paid pursuant to the existing child support order, the deviation from the recalculated amount that would be required to be paid under the schedule * * * shall be considered by the court as a change of circumstance that is substantial enough to require a modification of the amount of the child support order." In DePalmo v. DePalmo (1997), 78 Ohio St.3d 535, 679 N.E.2d 266, the Supreme Court of Ohio held that when there is an existing child support order, a new order cannot be issued unless the new amount varies from the old amount by ten percent or more. In the instant case, the existing child support order was $601.79 per month. The trial court recalculated the amount of child support that appellee would owe and determined that amount to be $637.92 per month. Despite the fact that a change of approximately $36 does not constitute a ten percent variation, the trial court increased the child support order to $637.92 per month. Even though the trial court erred by increasing the child support order without making the necessary finding that a substantial change in circumstances existed, we cannot reverse the trial court without it completing another child support computation worksheet because of the error raised by appellant in her first assignment. We agree with appellant that the trial court should have allowed her to present evidence of her child-care expenses before it arbitrarily decided that those expenses amounted to $3,750 per year. R.C. 3113.215(B)(1) requires that a calculation of the amount of an obligor's child support obligation must be made "in accordance with" the basic child support schedule set forth in R.C. 3113.215(D), the applicable worksheet in R.C. 3113.215(E) or (F), and other requirements of the law. The trial court has the responsibility to ensure that the calculation is made using the applicable worksheet. Marker v. Grimm (1992), 65 Ohio St.3d 139,141, 601 N.E.2d 496. Annual child-care expenses that are work-related must be considered in the child support calculation. See R.C. 3113.215(E) and (F). In the instant case, child support was calculated using the applicable worksheet; however, the magistrate refused to accept evidence on appellant's child-care expenses, decided that over $12,000 was unreasonable, and reduced that figure to $3,750. Because the magistrate used a figure in the child support computation worksheet that was not supported by any evidence or explanation by the court, we must conclude that the figure was arbitrary, and the trial court erred by ordering child support based on an arbitrary figure for child-care expenses. Appellant's first assignment has merit; therefore, we do not need to address appellant's second assignment of error. It would be premature for this court to consider whether a certain child support order would violate the Consumer Credit Protection Act when the amount of the child support order it still before the trial court. This cause is remanded to the trial court to take evidence on appellant's annual child-care expenses, complete a new child support computation worksheet using a figure inclusive of child-care expenses based on that evidence, and determine if a substantial change of circumstances exists, before modifying the child support order of $601.79 per month. _______________________ JUDGE ROBERT A. NADER FORD, P.J., O'NEILL, J., concur.

2016-07-06 06:42:02.92875+00

ACCELERATED DOCKET JOURNAL ENTRY and OPINION This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the record from the lower court, the briefs and the oral arguments of counsel. Plaintiff-appellant State of Ohio challenges the trial court order that granted defendant-appellee Thomas Vegh's application for expungement of his conviction for possession of cocaine. Appellant asserts in its first assignment of error the trial court failed to comply with the requirements of R.C. 2953.32(B) prior to issuing its order. Appellant further asserts the trial court lacked jurisdiction to issue its order since appellee was not a "first offender" within the meaning of R.C. 2953.31(A). This court cannot consider appellant's second assertion due to the nature of the limited record on appeal. State v. Saltzer (1984),14 Ohio App.3d 394. However, the trial court's failures to set a date for hearing and to notify the prosecutor of that date constituted reversible error. Since appellant's first assignment of error has merit, this case must be remanded for further proceedings. The record reflects in November, 1993 appellee was indicted on three counts of drug law violations and one count of possession of criminal tools. Following two pretrial hearings, appellee entered a plea to an amended count one, viz., possession of cocaine in less than the bulk amount, R.C. 2925.03. The trial court accepted appellee's plea, then ordered him referred to the probation department for a presentence investigation and report. On January 24, 1994 the trial court sentenced appellee to a term of incarceration of one and one-half years and imposed upon him a fine of $2500; however, the trial court suspended execution of sentence. Appellee was placed on three years of conditional probation and ordered to pay a reduced fine. On February 7, 2000 appellee filed a motion for expungement of his conviction pursuant to R.C. 2953.32(C)(2). Although appellee's certificate of service contained a statement appellant was served with a copy of his motion on that date, there is nothing in the record which confirms that statement. The following day, the trial court ordered appellee referred to the probation department for an expungement investigation report. On April 7, 2000 the trial court issued its order of expunge-ment of appellee's conviction. Appellant received service of this order on April 11, 2000. This appeal was filed shortly thereafter. Appellant's first assignment of error, which challenges the trial court's order on the basis of its failure to comply with the requirements of R.C. 2953.32(B), has merit. R.C. 2953.32(B) imposes a mandatory duty upon the trial court to both "set a date for a hearing and * * * notify the prosecutor for the case of the hearing on the application." See, e.g., State v. Simon (2000),87 Ohio St.3d 531 at 533. It is axiomatic that a trial court speaks only through its journal entries. Schenley v. Kauth (1953), 160 Ohio St. 109. Since the record reflects the trial court neither set a specific date for a hearing on appellee's motion nor notified appellant of a date upon which it would proceed to consider appellee's motion, the trial court erred in granting it. State v. Saltzer, supra; cf., State v. Hamilton (1996), 75 Ohio St.3d 636 at 638, 640. This case must be remanded for further proceedings consistent with this opinion. This court reminds the trial court that since the purpose of an expungement hearing is to permit it to "gather information" from several sources, including appellant, it is required "to examine the entire record" to determine whether the applicant is eligible for expungement. State v. Simon, supra. Thus, it must permit appellant the opportunity to respond to appellee's motion. State v. Hamilton, supra. Judgment reversed and remanded. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. ___________________________ KENNETH A. ROCCO, JUDGE ANN DYKE, A.J. and ANNE L. KILBANE, J. CONCUR

2022-11-23 16:04:54.142348+00

Davis

DAVIS, Judge, delivered the opinion of the court: Ronald P. Evensen served on active duty as an officer of the United States Army Reserves from March 1961 through his involuntary release as a major in January 1978. This suit for military pay challenges the validity of his nonselection by two normal promotion boards and by a Standby Advisory Board (STAB), and his consequent release from active duty. It is common ground that the original 1976 and 1977 promotion boards had before them two defective Officer Effectiveness Reports (OERs) which were later voided by the Army Board for Correction of Military Records, and that Major Evensen was referred by the Correction Board for promotion consideration (for 1976 and 1977) to a STAB — which also declined to recommend him for promotion. Plaintiff moves for summary judgment, charging that the STAB’s unfavorable actions were void because that board consisted of members who had previously considered him for promotion while on the 1977 regular selection board, and who then also considered him for promotion under both the 1976 and 1977 selection criteria while serving on the same STAB.1 Defendant has cross-moved for summary judgment, and the case is ready for disposition. For the reasons now to be set forth, we deny defendant’s motion and grant plaintiffs. *209I Major Evensen first failed of selection (for promotion from major to the temporary rank of lieutenant colonel) by a regular selection board in August 1976. His second nonselection came in June 1977. During the period between the 1976 and 1977 selection board actions, plaintiff appealed to the Correction Board, alleging that three OERs prepared on him between September 1967 and December 1970 were inaccurate and unfair,2 requesting that they be voided and that his personnel file be referred to a STAB for promotion consideration and retention in the army. By recommended decision of September 21, 1977 (subsequently adopted by the Secretary of the Army), the Correction Board decided that two of the challenged OERs should be voided because their use or retention in plaintiffs files was "in error and * * * therefore unjust.” One of the OERs was found inaccurate "in that, because of confusion which surrounded the preparation and submission of the report approximately nine months after the rating period ended, it appears likely that plaintiff was confused with a fellow officer.” The other was ruled improper because "the rater was not [plaintiffs] immediate superior in the chain of command and was apparently not in the best position to observe and evaluate his performance.” In addition to voiding these OERs, the Board decided that, as Major Evensen had requested, his corrected records should be submitted "to a duly constituted Standby Promotion Selection Board for appropriate action.” In the context of this referral to the other military board, the Correction Board stated that "although removal of the aforementioned OERs may not result in the applicant’s selection for promotion to the temporary grade of lieutenant-colonel, it is felt that his records should be referred to a Departmental Standby Advisory Board for consideration.” Evensen was thereafter considered for promotion, on the corrected record (deleting the two voided OERs), by a November 1977 STAB of five officers who had each been on the 1977 regular selection board which had already rejected *210plaintiff. This STAB considered him first for promotion under the criteria applied by the regular 1976 selection board; the very same STAB then considered him under the criteria applicable to the regular 1977 selection board. Plaintiff was not selected on either review. He was then released in January 1978, as having been twice passed over for promotion. This action was then brought. II We go directly to the cardinal vice in the composition of the STAB which twice refused to promote plaintiff after the Correction Board had referred him there — and then we discuss, in subsequent portions of this opinion, the reasons defendant gives us why we should nevertheless refrain from holding that Evensen was illegally separated from active service. The core defect which controls this case is that the five STAB members had already considered plaintiffs case as members of the regular 1977 selection board (which had before it the voided OERs), and also that these same STAB members considered Evensen for promotion, on the corrected record, for both 1976 and 1977. Plaintiff contends, and we agree, that this overlapping composition of the STAB board was unfair, contrary to governing law and policy, and did not give Major Evensen his "two fair chances at promotion as required by statute and regulation.” Doyle v. United States, 220 Ct. Cl. 285, 306, 599 F.2d 984, 997, modified at 220 Ct. Cl. 326, 609 F.2d 990 (1979), cert. denied, 446 U.S. 982 (1980). The statutory scheme for army promotion is designed to insure that such appointments are made "on a fair and equitable basis,” 10 U.S.C. § 3442(c), and that laws applying to both regulars and reserves be administered in a nondiscriminatory manner, 10 U.S.C. § 277. The promotion of reserve officers serving on active duty (such as plaintiff) is governed, not by statute, but by regulations, Standing Operating Procedures (SOPs), and Letters of Instruction, as well as by the broad policies established by legislation such as sections 3442(c) and 277 supra. *211The law is clear that with regard to regularly scheduled promotion boards for both regular and reserve officers: [n]o officer will serve on two consecutive boards for the same grade when the second board considers any of the officers who were considered but not selected for that grade by the previous board. [Army Reg. 624-100 § 2, 2-5b.] See also 10 U.S.C. § 3297(b) (prohibition on overlapping in normal selection boards for army regulars).3 In plaintiffs case, that regulation is not literally applicable by itself— though its general policy is plain — since we are concerned with overlapping membership between a regular selection board and a STAB and between two separate sittings on the same STAB (which separately considered plaintiff for promotion under both 1976 and 1977 selection criteria), rather than with two regularly scheduled selection boards. However, a January 20, 1976 Standing Letter of Instruction for STABs provides that: The proceedings of the Standby Advisory Board (STAB) will be conducted in accordance with these instructions. To the extent practicable, the same procedures and criteria as applied by regularly constituted selection boards convened pursuant to statute and regulations to consider all officers in a particular category will be used by standby boards. Officers referred to STAB will be afforded the same or comparable consideration as was given their contemporaries by the original selection board * * *.[¶2]. Under this instruction (which applies to both reserves and regulars and is in harmony with sections 277 and 3442(c) supra), the same procedures governing regular selection boards are to be applied, "to the extent practicable,” to STABs. So long as it is practicable to avoid doing so, we think that STABs were definitively prohibited from having overlapping membership like that which was so completely present in Evensen’s case. We see no reason why such a policy would be impracticable for STABs, and defendant *212has not made any such showing or even allegation. The practice’s workability is proved by the fact that the current Promotion SOP4 explicitly prohibits the duplicative practices of this case. It continues the requirement for prior selection board experience, but adds that an officer who was a member of a regularly convened selection board may not serve on a STAB that is reconsidering the recommendations of that board. Additionally, STAB members may not consider officers for the same grade under two consecutive boards’ criteria (e.g. 1977 and 1978 LTC, AUS) [lieutenant colonel, Army of the United States.] [Id. at ch. 7 ¶ 3(b).] If the current policy had been in effect and followed in November 1977, it would clearly have prevented the procedures challenged in this action. The impropriety of the policy allowing overlapping memberships on STABs was recognized in a Judge Advocate General Corps (JAGC) advisory opinion relating to the application of another officer for change in his position.5 The opinion said that [t]he reconsideration of applicant’s two nonselections by a single Standby Advisory Board (STAB) in November 1977 is not legally objectionable per se, but it could be found by the Board to have caused an injustice in that such a procedure does not substantially parallel the normal selection process that the STAB is intended to "recreate.” [JAGC opinion of December 12,1979.]6 The purpose of the prohibition against overlapping in boards appears obvious — in its absence partiality and *213prejudice could easily arise from the repeating officers’ past experiences and preconceptions, and could influence not only his own decision, but also be communicated to other board members. Such a practice is particularly unfair and likely to affect adversely an officer’s right to a "fair and equitable” opportunity for promotion where, as was the case here, the board was completely duplicative. We hold therefore that the composition of plaintiffs STAB violated his rights twice — once because the members of that board had already considered him while sitting on the regular 1977 selection board, and the second time when the same STAB considered him for promotion for both 1976 and 1977.7 Because the STAB was so fundamentally defective, its double recommendations against promotion must be voided, and cannot serve to correct the original defects in plaintiffs regular selection boards (which considered the voided OERs). The "harmless error” rule of Sanders v. United States, 219 Ct. Cl. 285, 309-10, 594 F.2d 804, 818 (1979), is inapplicable to this defect in the composition of the STAB. See Doyle, supra, 220 Ct. Cl. at 303-04, 599 F.2d at 996. Where, as here, the defect goes to board composition, rather than to the contents of an officer’s OERs or files (as it did in Sanders)8, automatic voiding of the passover is justified: [I]t is not possible for a reviewing body to determine what effect the error had on the judgment of the original proceeding * * *. In no way can the proper influence of Reserve officers be injected into the original process, after the fact, in order to determine the effect it might have had on the judgment of the board. [Id.].9 *214Although Doyle involved the separate problem of appropriate reserve members on a promotion board, its reasoning is at least equally applicable here. See also Ricker v. United States, 184 Ct. Cl. 402, 396 F.2d 454 (1968) (which is directly in point). Just as in Ricker and in Doyle, the illegality in composition rendered the proceedings of the STAB board fatally defective and void. Ricker, supra , 184 Ct. Cl. at 407-08, 396 F.2d at 457; Doyle, supra , 220 Ct. Cl. at 307, 599 F.2d at 998. Plaintiff was deliberately given by the Correction Board the opportunity for fair and equitable reconsideration by a STAB, but he did not and could not properly obtain that remedy because the members of the one STAB he had were necessarily infected, first, by their prior knowledge as members of the regular 1977 selection board of the defective OERs and the prior passover, and, second, when they considered plaintiff for 1977 by their prior knowledge (as members of the 1976 STAB panel) of plaintiffs records and of their own prior decision as to his nonselection for 1976. Ill The Government’s basic answer is that (a) plaintiff did not ask the Correction Board to void his passovers by the regular 1976 and 1977 selection boards, and (b) the Correction Board did not void those passovers. It follows, defendant says, that deficiencies in the STAB proceedings are irrelevant, the actions of the regular 1976 and 1977 selection boards still stand and cannot now be attacked in this court, and plaintiff is entitled to no judicial relief.10 We do not accept this position. First, we think that plaintiff (who acted pro se before the Correction Board) in addition to seeking the voiding of OERs did in effect ask the Correction Board to nullify his passovers by the regular selection boards. Major Evensen’s application to the Correction Board, while it did not explicitly request that the passovers (as opposed to the *215OERs) be voided, asked that his case be referred to a STAB "for reconsideration for promotion and retention in the U.S. Army.” The absence of a literal request that his nonselections (for periods including those covered by the defective OERs) be voided is not fatal to our finding that such relief was in fact sought. There is no magic formula for requesting this kind of relief. Though the language he used might possibly have been more definite if a lawyer had represented him, we consider that, taking into account his clear desire to be retained in the military, as well as his pro se status during the application stage, we should not find that he meant to, or did, waive or omit asking that the prior nonselections be voided. The fact that plaintiff explicitly requested reconsideration before a STAB is not at all inconsistent with, or exclusive of, his implicit request for voidance of the prior passovers. On the contrary, his request for reconsideration by a STAB shows that he definitely wanted reconsideration by a new board, free of the incumbrance of the prior passovers by the regular selection boards. It would, we think, mock his application to the Correction Board to read it as somehow accepting the result of the regular selection boards which, he well knew, had considered the very OERs he sought to have the Correction Board set aside.11 Similarly, we hold that in substance the Correction Board voided the prior passovers by the regular selection boards. That board had the authority to decide that defective OERs constituted "harmless error” — see Sanders, supra, Hary, supra, and comparable decisions — and therefore that the actions of the regular selection boards should be fully upheld. But in this case it clearly did not take that course, and properly so. Instead, it voided two OERs and then concluded that "it is felt that his records should be referred to a Departmental Standby Advisory Board for consideration,” and ended by recommending that after removal of the two OERs "the [corrected] records of [plaintiff] be submitted to a duly constituted Standby Promotion Selec*216tion Board for appropriate action.” The natural meaning to us is that the Correction Board, in reality though not in precise words, voided the previous passovers by selection boards (which had considered the two defective OERs) and sought for plaintiff overall consideration of his promotion by new, separate tribunals. This holding is firmly supported by the obviously serious nature of the defects found in the OERs by the Correction Board. That agency found, expressly and significantly, that "the utilization of such records [i.e. the two defective OERs] in consideration of the applicant [plaintiff] by selection boards for consideration for further promotion is in error and is therefore unjust.” Moreover, the Board said that "although removal of the aforementioned OERs may not result in the applicant’s selection for promotion to the temporary grade of lieutenant colonel, it is felt that his records should be referred to a [STAB] for consideration” (emphasis added). This means that the removal of the voided OERs could result in promotion though that was not certain. There is, of course, no requirement that promotion be certain, if a defective OER is removed, before a passover can be voided. In Sanders, supra, we rejected such a "but for” or "sole and exclusive” analysis. 219 Ct. Cl. at 308-09, 594 F.2d at 817. The errors recognized by the Board were not trivial, insubstantial, or technical. They involved, in one instance, an OER which confused another officer with plaintiff, and, in the other, an OER prepared by a rater who was not the appropriate person to observe and evaluate plaintiff. These errors — especially the first — were important. We are justified in inferring from their gravity, together with the Board’s choice to refer the case to the STAB, that the Board did not hold or feel that the errors were harmless, but rather that it decided to give Major Evensen a fresh chance before a new promotion board.12 The prior passovers were *217effectively voided and therefore could not and cannot serve as a basis for his separation from active duty.13 IV Defendant also argues that the STAB, to which plaintiff was referred, was not (and should not be treated as) the equivalent of a selection board, and therefore that the Correction Board’s reference to that body could not have been the same as sending plaintiff to another selection board after vacating the actions of the earlier boards. But Doyle, supra, 220 Ct. Cl. at 306, 312, 599 F.2d at 998, 1001, upheld the validity and effectiveness of relook or reconstituted boards which undertake the exhaustive reevaluaton that a normal, regular selection board does — and that opinion implicitly coupled to that category "standby” boards of the same full-scale character. We have no doubt that the promotion STAB here involved fits this Doyle class. The STAB was directed to recommend or decline to recommend officers for promotion, just as does a regular selection board. It considered a number of officers (though not as many as the regular selection boards). The army instructed that officers referred to a STAB are to be given "the same or comparable consideration as was given their contemporaries by the original selection board * * *” and the STAB was also specifically directed to use (to the extent practicable) "the same procedures and criteria as applied by regularly constituted selection boards convened pursuant to statute and regulations to consider all officers in a particular category * * January 20, 1976 Letter of Instruction for Standby Advisory Boards, ¶ 2, see Part II of this opinion, supra. There is no indication whatever that the Correction Board sent plaintiff to the STAB for consideration only of "harmless error” or "prejudice” in the proceedings of the regular 1976 and 1977 selection boards.14 Nor did this STAB act in that way; it reconsidered de novo plaintiff and other officers. The JAGC opinion cited in Part II, supra, *218noted that this STAB procedure was intended to "recreate” and "parallel”, substantially, the "normal selection process.” Like the relook or reconstituted boards we upheld in Doyle, the prior defective process was entirely redone by the STAB. For the officers involved, this STAB was their promotion or selection board.15 "[T]he label these boards wore is of no importance, the only question being whether [the officers] received full and fair consideration as required by law.” Doyle, supra, 220 Ct. Cl. at 307, 599 F.2d at 998. V For the reasons given in Parts II-IV, supra, plaintiff could not be, and was not, legally released from active service pursuant either to the actions of the regular 1976 and 1977 selection boards or to those of the STAB which considered him in November 1977. His motion for summary judgment is therefore granted and defendant’s is denied. He completed twenty years of active service on March 31, 1981 (including constructive active service for the period between his improper release in January 1978 and his March 31, 1981, date of eligibility for retirement). In these circumstances he does not press for actual reinstatement. His request for reinstatement has thus become moot but he is entitled to proper back pay (active and retired) and to have his records corrected. Accordingly, (A) judgment is entered in favor of plaintiff against defendant for the active duty pay and allowances of an officer serving in the grade of major, from the original date of his release from active duty, January 4, 1978, to March 31, 1981, the last day of the month during which plaintiff achieved twenty years of qualifying active federal service for retirement purposes; plaintiff is also entitled to proper retired pay; (B) plaintiffs records shall be corrected to show (1) that he has been credited for constructive active duty from the date of his original release, January 4, 1978, to March 31, 1981, the last day of the month during which he achieved *219twenty years of qualifying active federal service for retirement purposes; (2) that his nonselections for promotion to the grade of lieutenant colonel by the regular selection boards that convened in 1976 and 1977 have been voided; (3) that his nonselections for promotion to the grade of lieutenant colonel by the Standby Advisory Board which considered his records in November 1977 have been voided; (4) that plaintiffs release from active duty occurred on March 31, 1981; (5) that since March 31, 1981, plaintiff is entitled to retired pay at the proper level; and (6) that an appropriate notation has been placed in plaintiffs official military personnel file to explain the lack of officer efficiency reports reflecting actual service on active duty from the original date of his release from extended active duty to March 31,1981; (C) the case is remanded to the Secretary of the Army for computation of net back pay entitlements (both active duty pay and retired pay) consistent with our holding on liability in this opinion. Plaintiffs counsel shall report to the court under Rule 149(f) at 90-day intervals on the status of these computations by the army. The remand thus ordered shall be of 120 days duration, except that such period may be extended upon motion made under Rule 150(a) in the event an additional period of time is necessary to complete computation of plaintiffs net back pay entitlements; (D) upon completion of the computations by the Secretary of the Army, further proceedings shall be pursuant to Rule 150. Plaintiff likewise urges that the STAB had an insufficient number of reserve officers, and that an inadequate explanation of the omitted OERs was included in his corrected record before the STAB. It is unnecessary for us to reach those issues. The challenged OERs were also considered by the regular 1977 selection board. Congress made similar provisions for the regular navy (10 U.S.C. § 5701(e)), the navy staff corps (10 U.S.C. § 5702(f)), marine regulars and reserves (10 U.S.C. § 5703(e)), the regular air force (10 U.S.C. § 8297(b)), and the inactive reserves of army (10 U.S.C. § 3362(c)) and air force (10 U.S.C. § 8362(c)). The congressional policy is a strong one. The SOP in effect in 1976 had provided that "Standby Advisory Board members must have served as members of regularly constituted army selection boards and insofar as possible have been members of the original board for which reconsideration is being afforded.” Promotion SOP, ch. 3, fl 16. The purpose of this paragraph was apparently to make sure the chosen officers were familiar with the relevant year’s selection criteria and possibly with the case files of the particular officers being reconsidered. Insofar as this policy encouraged overlapping boards it was improper because of its inconsistency with relevant statutory law, the policy of the army regulations, and the general standards set forth in the January 20, 1976 Letter of Instruction discussed supra. The JAGC opinion may well have involved the same STAB as considered Major Evensen. We do not agree with the JAGC’s statement that this overlapping policy "is not legally objectionable perse”. On the contrary, we think that this practice was legally erroneous (because it violated statutes, the clear purpose of a regulation, and the prevailing letter of instruction) — as well as unjust. To the extent that Coughlin v. Alexander, 446 F. Supp. 1024, 1026-27 (D.D.C.), aff'd without opinion, 589 F.2d 1115 (D.C. Cir. 1978), may suggest that such overlapping is permissible for standby boards of our type, we differ with that view. See Doyle, supra, 220 Ct. Cl. at 305, 599 F.2d at 997. As well as in the cases following Sanders, e.g., Hary v. United States, 223 Ct. Cl. 10, 618 F.2d 704 (1980); Grieg v. United States, 226 Ct. Cl. 258, 640 F.2d 1261 (1981). Doyle also said: "Where the error is the violation of a provision designed to protect against a general form of prejudice, and there is no way of determining whether actual prejudice was involved in highly subjective and secret decision-making we conclude that this right ["consideration by boards which are constituted squarely in accordance with statute and regulations”] was not had.” 220 Ct. Cl. at 306, 599 F.2d at 997-98. At the most, defendant says, the matter should be remanded to the Correction Board to determine whether or not to apply the "harmless error” doctrine to the actions of the 1976 and 1977 regular selection boards (which had considered the two OERs voided by the Correction Board). Our determination that plaintiff effectively sought voiding by the Correction Board of the prior passovers removes this case from our holdings in DeBow v. United States, 193 Ct. Cl. 499, 503, 434 F.2d 1333, 1335 (1970), cert. denied, 404 U.S. 846 (1971) and like decisions, in which we refused to consider issues or relief not raised before or sought from ("explicitly or implicitly”) the Correction Board. It has some bearing on our interpretation of the Correction Board’s actions as referring plaintiff for de novo consideration that two of the five voting members of the Board would have gone further and would have invalidated or upgraded the third OER (which plaintiff also attacked but which the majority of the Board did not change or void). There is therefore no occasion even to consider a remand to the Correction Board to decide whether the prior passovers by the regular selection boards should be upheld as "harmless error” despite the defective OERs. Doyle distinguished standby boards "which make a limited investigation into the question of prejudice in an original proceeding.” 220 Ct. Cl. at 307, 599 F.2d at 998. The Correction Board recommended, and the Secretary directed, that after correction of his record plaintiffs case be submitted "to a duly constituted Standby Promotion Selection Board for appropriate action.” (emphasis added).

2016-07-06 06:42:02.230952+00

Per Curiam

This appeal on questions of law is directed to the judgment of the Probate Court in determining that Pauline D. Clark, surviving spouse, has the right under the provisions of paragraph (A) of Section 2113.38, Revised Code, to purchase an entire farm of about 100 acres at the appraised value as fixed by the appraisers. The error complained of is that the trial court placed the wrong construction on paragraph (A) of Section 2113.38, Revised Code, the pertinent part of which reads as follows: "A surviving spouse even though acting as executor or administrator, may purchase the following property, if left by the decedent and if not specifically devised or bequeathed: "(A) The mansion house, including the parcel of land on which such house is situated and lots or farm land adjacent thereto and used in conjunction therewith as the home of the *Page 201 decedent, and the household goods contained therein, at the appraised value as fixed by the appraisers." The controlling facts in this case are that the farm in question has been operated as a unit for about 50 years. The description of the land is in three tracts of 7.25, 28.29 and 65.75 acres, respectively, making a total of 101.29 acres. A road separates the first and second tracts, and another road separates the second and third tracts. The seven-room frame house in which the decedent and his wife lived, together with the milk house, smokehouse, brooder house, washhouse and garden, is situated on the first tract, within an area of from one-half to one acre. An old three room house and two old barns are located on the second tract, and, at the time of the decedent's death, were used for various kinds of storage. There appear to be no buildings on the third tract. The plaintiff married the decedent in 1920 and lived on the farm in question with the decedent, who inherited the entire property in 1924. The entire farm was appraised for $12,500, and no exception was taken to the inventory and appraisement. The gross appraised value of the entire estate is such that the surviving spouse could not purchase under paragraph (C) of the statute in question. The defendants, appellants herein, are children of the decedent by a former marriage. The farm was operated as a "one man" farm, the production being corn, wheat, oats, clover and pasture. At times the wheat, straw and clover or clover seed were sold, and the greater part of the corn produced was fed to hogs. For some time prior to the decedent's death his son operated the farm for him on shares. It is interesting to trace, through the various acts of the Legislature, the increase and expansion of the rights of a surviving spouse. The appellants call attention to one of the footnotes to Section 10509-89, Page's Ohio General Code, in setting forth a reason for the Legislature's amendment in 1935, as follows: "The comment by the Probate Code Committee of the Ohio State Bar Association with reference to the amendment to this section is as follows: *Page 202 "`* * * "`We also suggest that the words, "the home and its contents" which have received almost as many different constructions as there are Probate Courts, be changed to, "the mansion house, including the parcel of land on which the same is situated and lots or farm land adjacent thereto and used in conjunction therewith as the home of the decedent, and the household goods contained therein," in the hope that this language will avoid much of the present difficulty.'" This court finds no difficulty in the fact that the land is described as being in three tracts and that the division therein is by two roads. There is no question that it is one and the same farm, and that the three tracts together have constituted the whole for many years, that all the land is adjacent to the mansion house in both the sense that it is near and, also, in the sense that it is adjoining. The second question presented is whether the farm land was used in conjunction with the mansion house as the home of the decedent. It must be borne in mind that the statute in question provides for two parcels of land: first, that parcel of land on which the mansion house is situated; and, second, lots or farm land adjacent to the first parcel and used in conjunction therewith as the home of the decedent. A common expression which has come into being in relation to the small farm is a "one man farm," which we have already used; and another common expression is "home farm." The operation in which the owner is engaged is of itself unique in that it does not take on the characteristics of other commercial undertakings. The decedent always treated the home, that is the mansion house, together with all the farm land as his home. The appellants, who are his children by a former marriage, were brought up on this farm and in this mansion house. It is common knowledge that both the buildings and the land afforded a means of livelihood and existence for the decedent and his family. In this respect this case is clearly distinguishable from the case of In re Estate of Burgoon, 80 Ohio App. 465,76 N.E.2d 310. In the Burgoon case the dwelling or mansion house was situated on part of a lot that could easily be divided from, *Page 203 and was not connected with, the two other buildings on the lot, one of which was used as a poolroom and the other as a restaurant; and the decedent had collected rents from the two buildings used strictly for commercial purposes. A proper disposition of the case required that the mansion house be treated separately from the two other buildings, and that the right of purchase by the surviving spouse be limited thereto under the provisions of a section of the Code analogous to the one now under consideration by this court. We wish to emphasize that the Legislature, while adopting the term "mansion house" in the section controlling in this case, did not abandon the term "home," and used it specifically in characterizing the farm land adjacent to the mansion house and used in conjunction therewith in the following language, "as the home of the decedent." Having traced the expanding rights of the surviving spouse under the enactments of the Legislature, this court can not accept the construction of the present enactment of the law as limiting the surviving spouse to the right to buy at the appraised value only that which the surviving spouse could have had at common law, that is, the mansion house and curtilage. The very wording of the statute extends the right beyond that. Otherwise, there would be no reason to include the second part of the provision for an addition to the land on which the mansion house was situated, using the much broader term "home" in connection with lots and farm land. In the instant case the occupancy of the mansion house by the decedent could not have afforded him a farm home that would have met his needs. All the land was used in conjunction with, or in connection with, the mansion house in establishing and maintaining a home for the decedent and his family and comes within the purview of Section 2113.38, Revised Code. The judgment of the Probate Court is affirmed. Judgment affirmed. McCURDY, P. J., COLLIER and GILLEN, JJ., concur. *Page 204

2016-07-06 06:42:02.26306+00

Brogan

Billy T. Faris appeals from the judgment entered by the Xenia Municipal Court, Civil Division, holding that he was adequately advised of the statutory consequences of a refusal to submit to a chemical test pursuant to his arrest for operating a motor vehicle while under the influence of alcohol. On August 9, 1991, Faris was arrested for operating a motor vehicle while under the influence of alcohol. Faris refused to submit to a breath test, and was thereafter read and shown Ohio State Highway Patrol Form HP70D, Notification of Refusal or Agreement to Submit to a Chemical Test for Operating a Vehicle While Under the Influence of Alcohol and/or Drugs of Abuse. The form stated that if he refused to submit to the test his driver's license would be suspended for one year. On September 19, 1991, the Registrar of the Bureau of Motor Vehicles notified Faris by certified mail that his driver's license was to be suspended for one year for refusing to submit to a chemical test pursuant to R.C. 4511.191(D), and that in order to have his driver's license reinstated after the suspension he would have to provide proof of financial responsibility and pay a $125 reinstatement fee. These requirements are not set forth in Form HP70D, nor was Faris independently advised of them by the arresting officer. On September 26, 1991, Faris filed a petition in the Xenia Municipal Court to rescind the order of suspension asserting,inter alia, that he was not advised of the consequences of refusing the chemical test. On October 3, 1991, he filed a motion for summary judgment; the trial court overruled the motion on December 4, 1991. The trial court overruled the petition after a formal hearing, and sustained the imposition of the one-year license suspension, holding that form HP70D complies with R.C. 4511.191. Brown filed an appeal from this judgment on August 18, 1992, and imposition of the suspension was stayed pending the outcome of the appeal. In his sole assignment of error, Faris asserts that the trial court erred in holding that he was advised of the statutory consequences of a refusal to submit to a chemical test in accordance with R.C. 4511.191. This court recently considered this precise issue inWetzel v. Ohio Bur. of Motor Vehicles (Aug. 13, 1992), Darke App. No. 1304, unreported, 1992 WL *Page 270 190673. In Wetzel, we found that as all operators are required to maintain proof of financial responsibility, this requirement imposes no additional liability or expense and is purely administrative in purpose. However, with respect to the reinstatement fee: "* * * the requirement of a reinstatement fee of $125 is not an administrative measure but, instead, a form of punishment or penalty. * * * As such, it constitutes a penalty imposed to produce compliance with the statute and is a `consequence' of failure to comply." Wetzel, supra. Further: "* * * an arrested driver who is requested to submit to a test of his blood, breath, or urine to determine its alcoholic content must be advised that if he refuses to submit his license will be suspended and that he must pay the statutory fee to obtain reinstatement when he is eligible. If he is not advised,the resulting suspension must be set aside. Hoban v. Rice [(1971), 25 Ohio St.2d 111, 54 O.O.2d 254, 267 N.E.2d 311]." (Emphasis added). Wetzel, supra. Because Faris was not advised of the $125 reinstatement fee, his assignment of error is sustained on the basis of the holding in Wetzel. This court is aware that the Court of Appeals for Henry County recently considered this same issue but reached the opposite conclusion, finding that "[t]he requirements set forth in R.C. 4511.191(J)(1) and (2) are not consequences of the refusal but are conditions to be fulfilled before the privilege of driving in the state of Ohio is reinstated." Shoemaker v.Ohio Bur. of Motor Vehicles (1992), 78 Ohio App.3d 425, 427,604 N.E.2d 1386, 1387. Therefore, upon motion, this case will be certified to the Supreme Court of Ohio for resolution of the conflict.1 The judgment of the Xenia Municipal Court is reversed. Judgment reversed. GRADY, P.J., and FAIN, J., concur. 1 Reporter's Note: The parties never filed an order of certification with the Supreme Court of Ohio. *Page 271

2016-07-06 06:42:02.429143+00

Hess

This is an appeal from a summary judgment entered by the Court of Common Pleas of Hamilton County, in favor of defendant, appellee here. Herein, the parties will be referred to as they appeared in the trial court. It appears from the record that the plaintiff, a resident of Michigan, went to Cincinnati, Ohio, on May 27, 1967, with a reservation to stay at the defendant's hostelry, known as the Terrace Hilton Hotel. Upon arrival at the hotel, she was informed by the defendant's doorman that there was a downtown area electric power failure and there was no lighting or elevator service in the hotel. The hotel lobby and registration desk were on the eighth floor of the hotel building. The plaintiff checked her baggage with the doorman and then inquired about the use of restroom facilities. In response to her request, the doorman advised plaintiff *Page 294 the restroom was downstairs; that it would be quite dark on the staircase due to the electric power failure; that plaintiff would not be able to see the doors to the restrooms; and that the doors to the restrooms were located to the right of the bottom of the stairway. The doorman gave the plaintiff a small lighted candle, and she proceeded down the darkened stairway, moving slowly and carefully by groping along the handrail. After arriving at the platform portion of the stairway, plaintiff began to grope about for the restroom door and while so doing she fell to the bottom of the stair steps and received personal injuries which are the subject of this appeal. In her complaint against the hotel, plaintiff alleges that her personal injuries and resulting damage were directly and proximately caused by the negligence of the defendant in inducing her to enter a hazardous, darkened area of the hotel facility. Following the filing of the answer by the defendant and the reply to the answer by the plaintiff, defendant filed a motion for summary judgment in favor of the defendant, on August 24, 1970. On October 6, 1970, plaintiff filed a number of interrogatories, and on October 13, 1970, filed a motion for continuance on the hearing for summary judgment to permit the plaintiff to complete her discovery before the motion for summary judgment was heard. The motion for continuance was overruled and the hearing proceeded. On March 24, 1971, the trial court granted summary judgment in favor of defendant. In her appeal, plaintiff presents two assignments of error which this court will consider in the order submitted. The first assignment claims the trial court erred in overruling plaintiff's motion for continuance of the hearing for summary judgment. The record discloses that defendant's motion for summary judgment filed on August 24, 1970, was based upon the claim that the plaintiff assumed the risk when she proceeded down the darkened stairway. The motion for continuance is governed by Civil Rule 56(F) which provides *Page 295 that it is within the discretion of the trial court to grant or deny a motion for continuance of a summary judgment hearing for the purpose of allowing discovery. The incomplete discovery which the plaintiff claimed and desired to pursue during a continuance was composed of a series of interrogatories presented by the plaintiff. An examination of the interrogatories reveals that none of the questions posed, when answered, would serve to establish or negate assumption of the risk which was the issue to be resolved on the motion for summary judgment. It would have served no purpose to have granted a continuance to discover facts not related to assumption of the risk. It is evident that the trial court did not abuse its discretion in overruling the motion for continuance. For the reasons presented, we find that the first assignment of error has no merit. In assignment of error number two, the plaintiff claims the trial court erred in granting defendant's motion for summary judgment and finding as a matter of law that the plaintiff had assumed the risk of her injury. Before the defendant would be entitled to a summary judgment on the theory of assumption of the risk, it must be proven that plaintiff had full knowledge of a condition; that the condition was patently dangerous; and that she voluntarily exposed herself to the hazard created. Briere v. Lathrop Co., 22 Ohio St.2d 166. The plaintiff's own deposition supports the conclusion that she was told that the electric power in the downtown area had failed and there was no light or electric power in the defendant's hotel; that it was dark in the stairway leading to the hotel restrooms; that plaintiff had full knowledge of the darkness when she walked down the stairway with a small lighted candle; and that she moved slowly and carefully as she descended the stairway. The plaintiff contends that her action at the hotel did not establish assumption of risk, but presented the question of contributory negligence. It has been recognized that contributory negligence and assumption of risk may co-exist. Assumption of risk and contributory negligence *Page 296 are not synonymous because contributory negligence is based upon carelessness whereas assumption of risk is based upon venturousness. Plotkin v. Meeks, 131 Ohio St. 493; Chardon LakesInn Co. v. MacBride, 56 Ohio App. 40; Ricks v. Jackson, 169 Ohio St. 254; Porter v. Toledo Terminal Rd. Co., 152 Ohio St. 463. Since it appears there is no genuine issue of any material fact, the trial court correctly determined the plaintiff assumed the risk of her injury and damage when she proceeded into the darkened area of the premises in question. It follows that for the reasons presented herein, assignment of error number two is not well taken. Therefore, it is ordered that the judgment of the Court of Common Pleas of Hamilton County, Ohio should be, and hereby is, affirmed. Judgment affirmed. YOUNG and SHANNON, JJ., concur. *Page 297

2016-07-06 06:42:02.461296+00

Carpenter

This was an action for trespass on property of the plaintiffs, appellants. To plaintiffs' petition the several defendants filed separate demurrers, which were sustained by the trial court on the ground that the petition does not state a cause of action, and, plaintiffs not desiring to plead further, judgment was entered and plaintiffs appealed on questions of law. The petition alleges in substance that the defendants, the Pennsylvania Railroad Company, The New York, Chicago St. Louis Railroad Company (which will be referred to herein as the railroads) and the city of Bellevue (which will be referred to as the city) have unlawfully and forcibly entered upon their premises where they conduct a retail grocery business and have torn up the street in front of it, causing great damage to their property and business, for which they ask damages. They further allege that the defendants claim the right to do what they have done under certain proceedings then pending in the Common Pleas Court of Huron county, and they attach to and make a part of their petition a copy of those proceedings. From this attached exhibit it appears that the Director of Highways of the state of Ohio and the rail roads, with the co-operation of the city, are engaged in a grade crossing elimination project where the city street crosses the tracks of the railroads; that such proceedings have regularly progressed to the point where affected property owners, including plaintiffs, have filed claims for damages, and the director has ordered all such claims transmitted to the council of the city "for its proper action and determination." The council, on October 12, 1936, passed a resolution by which it determined that the claims of two of the claimants should be judicially determined before the completion of the improvement, and all other such *Page 39 claims, including that of the plaintiffs herein, after the completion of the improvement; and it requested the City Solicitor of the city to "apply to the Probate Court or Common Pleas Court of Huron county, wherein said real estate is situated, for the determination of the compensation and damages, or either, of said claimants." Acting on this authority, the city solicitor filed an application in the Common Pleas Court of Huron county making parties defendant therein all persons who had filed claims, including these plaintiffs, and alleging in detail the facts hereinbefore stated and other pertinent facts, and attached to the application a copy of the resolution of council. This application and attached resolution constitute the proceeding attached and made a part of plaintiffs' petition herein. The error assigned by the appellants is the sustaining of the demurrer to their petition. Supporting their petition, the appellants assert, stating their claims concretely, that: 1. The proceeding above described is illegal because it was brought by the city through its city solicitor and not by the Attorney General of Ohio; and 2. If the law does authorize the solicitor to make the application for the city, the acts of the defendant constitute an unconstitutional invasion of the plaintiffs' property rights before their damages have been determined and paid. The last proposition is disposed of by the Supreme Court inWaid, Dir., v. Heistand, 122 Ohio St. 615, 174 N.E. 139, wherein it decided that under Section 19 of Article 1 of the Constitution of Ohio, private property may be "taken for the purpose of making or repairing roads" without first making compensation to the owner. This being a highway improvement, it falls within the constitutional exception, and plaintiffs' *Page 40 damages may be determined after the completion of the improvement. The details of procedure for the elimination of grade crossings are specified minutely in the statutes. The particular question involved in the applicants' first contention, as above stated, takes our attention to three separate sentences in Section 1228-1, General Code, as follows: "* * * The procedure governing such improvements shall be in accordance with the provisions of Sections 1229 and 1229-19 and related sections of the General Code, as applicable to railroad crossings on the state highway system, except as hereinafter provided. * * *." "Legislative authorities of any political subdivision shall have authority when approved by the director of highways and when cooperating with the department of highways in projects authorized under this act, to follow the procedure available for the director of highways in grade elimination projects as provided in Sections 1229 et seq. of the General Code. * * *" "The commissioners of any county or any municipal corporation may cooperate with the director in any of the hereinbefore described improvements, adopting the appropriate procedure set forth in Sections 1191, 1229-15, 1195-1 and related sections of the General Code. * * *" Sections 1191, 1229-15 and 1195-1 relate to the division of the cost of construction between interested units, a matter not involved in this case. Hence for "related sections of the General Code" referred to in the law quoted, when dealing with a municipality, we look to Sections 8863 to 8894, General Code. Section 8885 deals with the determination of claims for damages and empowers the council of a municipality to determine "whether such claims are to be judicially inquired into * * * before commencing, or after the *Page 41 completion, of the proposed improvement" and "Thereupon, the mayor or solicitor shall make application for a jury * * * to the Common Pleas or Probate Court * * * and all proceedings upon such application shall be governed by the laws relating to the application provided for in other cases of city improvements." Appellants point to Sections 1229-11a and 1229-11b, General Code, as requiring the Director of Highways to file copies of his orders and proceedings with the Attorney General and "request him to apply to the Probate or Common Pleas Court * * * for the determination of the compensation and damages," and "The attorney general, within a reasonable time, shall file an application * * * which shall contain a prayer to the court to fix a date for such trial." The right of a cooperating municipality, as the city in this case, on orders from the director, to take over the duty of having such claims judicially determined is not challenged. But by reason of the provisions of Section 1229-11b above referred to, it is urged that only the Attorney General of the state has power to make such application. Such reasoning misconstrues the language of Section 1228-1, which authorizes the "Legislative authorities of any political subdivision * * * to follow the procedure available for the director." "Procedure" as thus used, has reference to the order and means of accomplishing the end, a judicial determination of the claims, not necessarily the persons by whom it is done. When such a proceeding is initiated by the Director of Highways, a state officer, he does so by the state's legal officer, the Attorney General; when by a municipality, by its legal officer, the solicitor; and if it were a county in charge, its prosecuting attorney would be the appropriate official to make the application. This law does not impose upon the Attorney General of the state the duty of making *Page 42 all such applications and conducting such proceedings for all of the political subdivisions of the state when so directed to take charge by the director. The method used by the city in this matter follows the way expressly pointed out in Section 8885, General Code. Hence, whether "related sections of the General Code" as used in Section 1228-1, refers to Sections 1229-11a and 1229-11b, or to Section 8885, the action taken by the city conforms to both in respect to the proper officer to make the application. All of the appellees offer another reason why the plaintiffs' petition does not state a cause of action, in that it shows upon its face that it is a collateral attack upon another action, and that the questions presented here should have been raised in that matter which was pending when plaintiffs' petition was filed. There can be no question but that the Common Pleas Court of Huron county in that matter has jurisdiction of the persons of these plaintiffs as defendants therein, and of the subject of the city's action, to wit, the assessment of damages to plaintiffs' property; in fact, plaintiffs bring this action in the same forum for the same purpose. That court having jurisdiction, the most that can be said for the plaintiffs' objection to that action is that the plaintiff therein, the city on relation of its City Solicitor, does not have capacity to sue. This question could and should have been raised in that matter. Section 11309, General Code. For the reasons stated the court below properly sustained the demurrers and its judgment is affirmed. Judgment affirmed. LLOYD and OVERMYER, JJ., concur. *Page 43

2016-07-06 06:42:02.497073+00

Koehler

Defendant-appellant, Kirk Douglas Roaden, appeals a conviction in the Clermont County Court of Common Pleas for drug abuse. On September 14, 1993, at approximately 6:00 p.m., Officer Tony Kuhnell of the Goshen Township Police Department received a complaint that a car with license plates registered in appellant's name was speeding. Kuhnell knew appellant from a previous arrest and learned appellant's address by using his license plate number. After unsuccessfully spending approximately two hours trying to catch appellant with stationary radar, Kuhnell decided to visit appellant at his residence in Fay Gardens Mobile Home Park to give appellant a "courtesy warning" about speeding. Upon arriving at the mobile home park, Kuhnell found appellant's automobile parked in a driveway leading to a vacant mobile home next door to appellant's residence. Kuhnell walked up the driveway past the driver's side window of appellant's car, peered inside, and saw eight hand-rolled cigarettes, which he believed to contain marijuana, in an ashtray. Near the ashtray was a pair of scissors which, in Kuhnell's experience, can be used to cut the ends of marijuana cigarettes. Kuhnell then went next door to appellant's residence to warn him about speeding and to issue a minor misdemeanor citation for possession of marijuana. When appellant came to the door, Kuhnell asked appellant to step outside. Kuhnell warned appellant about speeding and then asked appellant to step over to the car so he could issue the citation. Kuhnell then searched appellant's car and found some loose marijuana and a homemade marijuana pipe in the glove box. Kuhnell arrested appellant for possession of drug paraphernalia and conducted a pat-down search of his person. After hearing the sound of cellophane crinkling, Kuhnell reached into appellant's pocket and pulled out five small stamps. He asked appellant if they contained LSD and appellant replied that they did. On October 13, 1993, appellant was indicted for drug abuse pursuant to R.C. 2925.11 based upon his possession of LSD. Appellant filed a motion to suppress any evidence obtained from the search of his automobile. After the trial court overruled his motion, appellant entered a plea of no contest and was found guilty. This appeal followed. In his sole assignment of error, appellant states that the trial court erred by overruling his motion to suppress. Appellant argues that the officer's initial intrusion onto private property to look into his car and the subsequent search of the car were illegal. We find this assignment of error to be well taken. *Page 503 Pretextual searches and seizures are significant intrusions on an individual's liberty and violate the Fourth Amendment.United States v. Lefkowitz (1932), 285 U.S. 452, 467,52 S.Ct. 420, 424, 76 L.Ed. 877, 883; State v. Richardson (1994), 94 Ohio App.3d 501,506, 641 N.E.2d 216, 219. A pretextual search refers to an exploratory search for evidence that is not related to the offense upon which the initial intrusion is supposedly based.State v. Whitsell (1990), 69 Ohio App.3d 512, 518,591 N.E.2d 265, 269. "[T]he pretext arises out of the fact that the evidence is found in a search which would not have occurred at all but for the manipulation of circumstances and events by the police because of their desire to conduct a search which could not otherwise be lawfully made." Id., quoting 2 LaFave, Search and Seizure (2d Ed.1987) 141, Section 7.5(e). The test for a pretextual search is not whether the officer could have validly conducted the search but whether, under the same circumstances, a reasonable officer would have conducted the search without the invalid purpose. State v. Spencer (1991),75 Ohio App.3d 581, 585, 600 N.E.2d 335, 337, quoting UnitedStates v. Smith (C.A.11, 1986), 799 F.2d 704, 709; Whitsell,supra, 69 Ohio App.3d at 523, 591 N.E.2d at 272; Richardson,supra, 94 Ohio App.3d at 508-509, 641 N.E.2d at 220-221. If a search is pretextual, it is prohibited by the U.S. Constitution and all of the fruits of the search should be suppressed.Spencer, supra, 75 Ohio App.3d at 585, 600 N.E.2d at 337;State v. Bishop (1994), 95 Ohio App.3d 619, 622-623,643 N.E.2d 170, 172. In the present case, Kuhnell did not have probable cause or even a reasonable suspicion sufficient to justify intruding on private property and looking into appellant's car. Kuhnell simply had no reason to be in a position to look into appellant's vehicle. We do not believe that spending two hours looking for a speeder and going out of the way to give a warning about speeding are actions a reasonable officer would take without an invalid purpose. Instead, we think it clear that Kuhnell manipulated events to conduct a search that could not otherwise be made and therefore his reason for being on the property and looking into appellant's vehicle was pretextual. The state claims that the items in appellant's car were in plain view and that appellant has no standing to challenge the search of his car since it was parked in a driveway in which he did not have a possessory interest. However, the plain-view doctrine requires that the initial intrusion that brought the police into a position to view the object must have been lawful.Texas v. Brown (1983), 460 U.S. 730, 737-739, 103 S.Ct. 1535,1540-1541, 75 L.Ed.2d 502, 510-512; State v. Taub (1988),47 Ohio App.3d 5, 6-7, 547 N.E.2d 360, 361-363. "`[P]lain view' provides grounds for seizure of an item when an officer's access to an object has some prior justification under theFourth Amendment." Brown, supra, *Page 504 460 U.S. at 738, 103 S.Ct. at 1541, 75 L.Ed.2d at 511. Plain view alone is never enough to justify the warrantless seizure of evidence.Coolidge v. New Hampshire (1971), 403 U.S. 443, 468,91 S.Ct. 2022, 2039, 29 L.Ed.2d 564, 584; State v. Martin (Feb. 9, 1983), Clermont App. No. 1161, unreported, at 6, 1983 WL 4284. Therefore, a pretextual intrusion upon private property cannot be used to justify finding items in plain view. See Brown,supra, 460 U.S. at 743, 103 S.Ct. at 1544, 75 L.Ed.2d at 514. The state also contends that the warrantless search of appellant's car was justified under the automobile exception to the warrant requirement. Under this exception, a police officer may search a vehicle stopped on the highway without a warrant if the officer has probable cause to believe the vehicle contains contraband. Carroll v. United States (1925), 267 U.S. 132, 149,45 S.Ct. 280, 283-284, 69 L.Ed. 543, 549; State v. Sprague (Apr. 17, 1989), Clermont App. Nos. CA88-05-037 and CA88-06-049, unreported, at 7, 1989 WL 36301. The rationale behind the automobile exception is the exigency created by the inherent mobility of and the lessened expectation of privacy in an automobile. California v. Carney (1985), 471 U.S. 386, 390-391,105 S.Ct. 2066, 2068-2069, 85 L.Ed.2d 406, 412-413. Nevertheless, "[t]he word `automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears."Coolidge, supra, 403 U.S. at 461-62, 91 S.Ct. at 2035,29 L.Ed.2d at 580. Neither Carroll nor other U.S. Supreme Court cases suggest that "in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords." Chambers v.Maroney (1970), 399 U.S. 42, 50, 90 S.Ct. 1975, 1981,26 L.Ed.2d 419, 428. The Supreme Court has distinguished the warrantless seizure of an automobile from a public place from a warrantless seizure which required an entry onto private property. Cardwell v.Lewis (1974), 417 U.S. 583, 593, 94 S.Ct. 2464, 2471,41 L.Ed.2d 325, 336 (plurality); Sprague, supra, at 9. See, also, Coolidge,supra, 403 U.S. at 460-462, 91 S.Ct. at 2035-2036,29 L.Ed.2d at 579-580. In Carney, supra, the Supreme Court stated that the justification for the automobile exception comes into play when "a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes * * *." Id.,471 U.S. at 393, 105 S.Ct. at 2070, 85 L.Ed.2d at 414; Sprague, supra, at 9. Thus, case law supports the conclusion that, absent exigent circumstances, the automobile exception does not apply to the warrantless search or seizure of an automobile from the driveway of a private residence. Sprague, supra, at 9. We find that the search of appellant's vehicle was pretextual and violated his Fourth Amendment rights. Since Kuhnell's initial intrusion onto private property to view the inside of appellant's vehicle was improper, any evidence obtained *Page 505 after that point must be suppressed as "fruit of the poisonous tree." Accordingly, we find that the trial court erred in overruling appellant's motion to suppress, and we sustain appellant's sole assignment of error. Judgment reversedand appellant discharged. JONES, P.J., and WALSH, J., concur.

2016-07-06 06:42:02.553327+00

Shannon

This is an appeal on questions of law from an order of the trial court sustaining plaintiff-appellee's motion for summary judgment and ordering complete distribution of a trust. The trust in question was established by Andrew Jergens, Sr., then aged sixty-six years, on December 24, 1923, and provided for income distribution to his four children. The entire income of the trust was set aside for the benefit of a daughter, Mina, as long as she might live. After her death, in 1944, the income was distributed to two other daughters and a son, Andrew Jergens, Jr., then the sole trustee. One of the daughters died in 1961, and a suit was filed thereafter in the Court of Common Pleas of Hamilton County seeking instructions as to the distribution of income previously going to such deceased beneficiary. Defendant, appellant herein, Betsy Kuprash, a granddaughter of such deceased, was made a party defendant to that suit in which the issue was whether Betsy Kuprash was entitled to share in any part of future income distributions. The Court decided that question in the negative, and thereafter Betsy Kuprash filed a notice of appeal from the judgment entry. Subsequently, the appeal was dismissed, presumably pursuant to an agreement between the plaintiff trustee and defendant Kuprash. On January 4, 1967, Andrew Jergens, Jr., filed an action in the Court of Common Pleas of Hamilton County seeking the appointment of a trustee to succeed him in event of his death or disability and, then, to distribute the trust, Betsy Kuprash being made one of the parties defendant. However, on February 22, 1967, Andrew Jergens, Jr., died, and the trust, by its provision, terminated. On March 23, 1967, the case at bar was filed to obtain a successor trustee to distribute, immediately, the corpus of the trust. It was recited in that petition that Betsy *Page 138 Kuprash had claimed a share under the trust instrument as she had done earlier. All defendants, except Kuprash, filed timely answers joining in the prayer for distribution. Kuprash filed an answer setting forth that the trust had been "amended" in 1925 and that the assets should be distributed as "undistributed property of Andrew Jergens, Sr.," the settlor. After a pretrial hearing, attended by counsel for Kuprash, the matter was set for a date certain for completion of all discovery efforts. Before that date had arrived, a motion for summary judgment was filed by plaintiff and the matter set for hearing on October 23, 1967. Defendant Kuprash obtained additional counsel, and a continuance was had to October 30, 1967, for a hearing on the motion for summary judgment. On October 30, 1967, counsel for Kuprash tendered an amended answer and cross-petition, leave to file which was refused by the trial court on the ground that the filing was not timely. Counsel for Kuprash then proffered such pleading as a substitute for an affidavit in connection with the summary judgment proceeding. The trial court refused to accept it in that guise on the same ground. Thereafter, the court granted the motion for summary judgment, the order now on appeal. Appellant sets forth four assignments of error: First, it is asserted that the court erred in refusing to grant leave to file the amended answer of Mrs. Kuprash. Secondly, the claim is made that the motion for summary judgment should have been dismissed or overruled because it was not properly filed. Section 2311.041(A), Revised Code, provides: "* * * If the action has been set for pretrial, a party may file a motion for summary judgment only with leave of the court. After the action has been set for trial such a motion may only be filed with the consent of all the parties to the action." It is clear that a pretrial hearing had been set prior to the filing of the motion for summary judgment, but leave of court was first had. Therefore, the requirement of the Code was met. *Page 139 Section 2311.041(B), Revised Code, provides, in part: "* * * The adverse party prior to the day of hearing may file opposing affidavits. * * *" Nothing was filed or tendered on behalf of Mrs. Kuprash until the hearing on the motion was commenced. At that juncture, her counsel sought leave to file an amended answer and cross-petition. Since all parties knew that the court was to consider the motion for summary judgment and had granted counsel for Mrs. Kuprash time to study the papers and to confer, we can find no abuse of discretion in the judge's refusal to grant leave to file the amended pleading. Section 2311.041(B), Revised Code, prohibits the consideration of evidence or stipulations not filed in accordance with such section. Consequently, the ruling of the court in refusing to consider the amended answer and cross-petition as an "affidavit" was correct, both because it was not filed in harmony with Section 2311.041(B) and because it did not meet the requirements of paragraph (D) of the same Code section. The third and fourth assignments of error are so interrelated that we shall dispose of them together. Appellant urges that summary judgment should not have been rendered and that thereafter she was entitled to a separate statement of law and fact. As we view this matter, the court below was confronted only with questions of law. There were no disputed facts essential to the resolution of the issues. The clear provision of Section2311.041 is that summary judgment shall be rendered forthwith if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The question of law which had to be decided was: Did Betsy Kuprash have an interest in the corpus of the trust entitling her to share in its distribution? This issue, in essence, was the same as that before the court in 1962 when it was decided adversely to Kuprash. Review of the propriety of such decision was never had because of subsequent action by Kuprash. *Page 140 The effect of the 1962 decision was to establish the validity of the trust and to define its terms. Confronted, then, with the same question, the trial court here correctly applied the controlling law to that which had been established earlier and reached the same conclusion, in fine. It has long been accepted in Ohio that the word, "children," does not include (without more) "grandchildren." See paragraph two of the syllabus of Sinton v. Boyd, 19 Ohio St. 30, to wit: "Where a testator gave all his estate to his wife for life, and directed that all remaining after her death should be divided, by his executors, equally amongst his children, or thesurvivors of them, and, after his decease, one of the children died, before the death of the testator's widow, leaving a child:Held, That no interest vested in the deceased child under the will, and that the grandchild of the testator was not entitled to share in the estate, as one of the `children' or `survivors,' to whom it was to be distributed." It seems to us that once the court determined that Kuprash had no interest in the corpus of the trust as a matter of law, there remained for it only the task of dividing the principal and accrued income. It was not required to set forth findings of fact separately from conclusions of law simply because no decision of fact had been required. Appellant has received a determination of her rights, which we find to be correct. She has had her day in court. The decision and order of the Court of Common Pleas, Hamilton County, is affirmed. Judgment affirmed. LONG, P. J., and HILDEBRANT, J., concur. *Page 141

2016-07-06 06:42:02.592134+00

Resnick

This cause is before the court on appeal from the judgment of the Ottawa County Court of Common Pleas dated January 31, 1985, granting appellee's motion for suspension of his sentence pursuant to R.C. 2947.061(B). The state made a motion seeking leave to appeal the suspension of appellee's sentence and also to stay the suspension of said sentence. The motions were granted by this court on February 1, 1985. The state assigns as error the following: "I. The trial court erred by granting probation for a non-probat[ion]able offense. "II. The trial court erred by failing to order and consider a presentence investigation and report. "III. The trial court lost jurisdiction when it failed to enter its ruling within 10 days of the probation hearing." On November 12, 1974, the appellee participated in a robbery and kidnapping. Appellee pled guilty to kidnapping in violation of R.C. 2905.01 and aggravated robbery in violation of R.C.2911.01, and was sentenced to be imprisoned not less than seven, nor more than twenty-five years as to each count with the two sentences to run consecutively. The appellee was serving his sentence for these two crimes when he filed a motion on August 14, 1984, for a suspension of his sentence pursuant to R.C.2947.061(B). The trial court granted appellee's motion for "shock" probation pursuant to R.C. 2947.061(B), and it is from that order that the state appeals. It will not be necessary to address each of appellant's assignments of error individually because it is clear that R.C.2947.061(B), which allows "shock" probation for individuals convicted of aggravated felonies of the first, second, or third degree, does not apply to individuals *Page 39 who committed an aggravated felony of the first, second, or third degree prior to July 1, 1983. Subsection (B) of the current R.C.2947.061 which allows for "shock" probation for individuals who have been convicted of aggravated felonies of the first, second, or third degree, was first enacted by Am. Sub. S.B. No. 199 (139 Ohio Laws, Part I, 523 et seq.). Unfortunately, that Act did not specify whether that subsection was to apply to offenses committed prior to the effective date of that Act. However, this situation was remedied when the legislature enacted Am. Sub. H.B. No. 269 (139 Ohio Laws, Part I, 2285). Section 4 of that Act, amending Section 10 of Am. Sub. S.B. No. 199, states, in pertinent part, the following: "Sections * * * 2947.061 * * * of the Revised Code, as amended by Am. Sub. S.B. 199 of the 114th General Assembly, * * * shall take effect on July 1, 1983, and shall apply only to offenses committed on or after July 1, 1983. * * *" (Emphasis added.) It is clear from the above-quoted language that "shock" probation for individuals convicted of aggravated felonies of the first, second, or third degree, pursuant to R.C. 2947.061(B), is only available to those individuals who committed the offense on or after July 1, 1983, and for which they are incarcerated. Since appellee's imprisonment was for crimes which he committed in 1974, he was unable to avail himself of the provisions for "shock" probation found in R.C. 2947.061(B). Therefore, the trial court committed error in granting "shock" probation to appellee pursuant to R.C. 2947.061(B). Upon consideration whereof, the judgment of the Ottawa County Court of Common Pleas is reversed. The judgment of the trial court granting the motion for "shock probation" is vacated and held for naught. This cause is remanded to the trial court for any action which said court deems proper and which is not inconsistent with this opinion and for assessment of costs. Costs assessed against appellant. Judgment reversed. CONNORS, P.J., concurs. WILKOWSKI, J., dissents.

2016-07-06 06:42:02.686499+00

Day

This is an appeal by defendant-appellant, American Reserve Insurance Co. (defendant), from a judgment of the Cuyahoga County Common Pleas Court awarding $12,500 to plaintiff-appellee, Herbert D. Lockhart (plaintiff), under terms of his insurance coverage with defendant. The judgment is reversed and the case dismissed. Plaintiff was injured and his motorcycle destroyed on May 15, 1977, when he was struck at E. 93rd Street and Gibson Avenue by a car driven by an uninsured motorist. Plaintiff filed a claim with defendant insurance company. After plaintiff heard nothing from the company for some time he filed suit in common pleas court. Defendant pointed out that the insurance policy contained a mandatory arbitration clause.1 A panel was chosen pursuant to the clause and met in January 1980. Apparently the arbitrators found the uninsured motorist negligent and made an award. From a letter written by the chairman of the panel to the parties' attorneys (Exhibit C) it is clear that a unanimous decision was written and signed but not physically delivered to the parties. The parties seem to agree that the amount of that award was $6,000.2 Subsequently, at the request of plaintiff's attorney who "had learned of the amount to be awarded to his client" (Exhibit C), the panel was reconvened in May 1980. The source of the leak does not appear in the record. However, during oral argument counsel for defendant conceded that he called the chairman of the panel, learned of the award and immediately notified the plaintiff's attorney. On May 6 the same panel of arbitrators with one dissent, awarded $12,500 to plaintiff and $2,000 to his wife. The common pleas court retained jurisdiction on plaintiff's original suit while the arbitration process adopted in the insurance policy was pursued. At a pre-trial hearing in common pleas court subsequent to issuance of the second award, the court asked each party to file a motion for summary judgment upon which it would base its findings. The court granted summary judgment for the plaintiff for $12,500 and for defendant and against plaintiff on the $2,000 award to his wife. From this judgment defendant appeals, assigning one error: *Page 101 "Assignment of Error No. I: "The trial court erred when it rendered summary judgment in favor of appellees for Twelve Thousand Five Hundred Dollars ($12,500.00) when pursuant to an arbitration provision in an insurance contract a three person arbitration panel chosen by the parties rendered a unanimous and binding written decision in favor of appellees for Six Thousand Dollars ($6,000.00)." For reasons adduced below the assignment is well taken. I R.C. Chapter 2711 is the Ohio statute governing arbitrations. R.C. 2711.01*3 provides: "A provision in any written contract * * * to settle by arbitration a controversy thereafter arising out of such contract * * * shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." Agreements to arbitrate can be enforced in the court of common pleas having jurisdiction of the party failing to perform.4 And when it appears in "any suit or proceeding" that the issue is arbitrable under an agreement in writing, the court "in which such suit is pending" is required to stay the proceeding upon the application of a party until the arbitration is had.5 A gap in the procedure for appointing an arbitrator can be filled by common pleas court also on application of a party.6 Once an arbitration is completed it is apparent that a court which has stayed or ordered enforcement of the agreement to arbitrate has no jurisdiction except to confirm, vacate, modify, or enforce the award and only on the terms provided by statute,i.e., R.C. 2711.09 and R.C. 2711.12 (confirm and enter judgment); R.C. 2711.11 (modify); R.C. 2711.10* and 2711.13* (vacate); or R.C. 2711.14 (enforce the award). These special statutory sections provide the only procedures for post award attack or support of an arbitration decision. However, an appeal may be taken "from an order confirming, modifying, correcting, or vacating an award made in an arbitration proceeding or from judgment entered upon an award."7 But the review is confined to the order. The original arbitration proceedings are not reviewable.8 The statute requires that the award be in writing and signed by a majority of the arbitrators and a "true copy of such award" delivered to each of the parties.9 II The agreement to submit to arbitration describes the issues and defines the perimeters of the arbitration tribunal's powers with respect to them. When the submitted issues are decided, the arbitrators' powers expire.10 Thus, a second *Page 102 award on a single, circumscribed submission is a nullity, cf.Bayne v. Morris (1863), 68 U.S. (1Wall.) 97, 99. III In the present case it is established by a letter from the chairman of the arbitration panel to the parties' attorneys11 that a first (original) award was reduced to writing and signed. It is clear that no "true copy of such award" was everphysically "delivered to each of the parties in interest" nor included in the record. Whether the failure to physically deliver can be cured by constructive delivery without violating the statute, whether there was constructive delivery, what consequences follow flawed delivery and the remedy under the circumstances of this case are central to this appeal. IV Once a decision was reached in this case, reduced to writing and signed by at least a majority of the panel, the arbitrators' powers were extinguished unless there was a failure to deliver which preserved their authority and thus allowed a revamping of the original. Under ordinary circumstances it might be defensible to argue that prior to the announcement and the actual delivery a change of arbitrators' minds could be reflected in a revamped first award because finality had never been achieved. But the circumstances here are not ordinary. The facts show that. For the change in the original award before literal delivery was stimulated by the defendant's counsel's unilateral communication with the chairman of the arbitration panel. And when the chairman revealed the original decision, defendant's counsel immediately telephoned the information to the plaintiff's lawyer who asked for reconsideration.12 Reconsideration was granted and a second award issued with one dissenting arbitrator. After requesting motions for summary judgment from each party, the trial court granted summary judgment for the plaintiff and issued its own award — the third in the series. This repetition is necessary to highlight the procedural aberrancy in this case. Every action in it subsequent to the reduction to writing and signing of the original award was without legal foundation. A party dissatisfied with an arbitration award has only that recourse to the court of common pleas provided by statute. And that effort can be successful only if one of the statutory grounds for vacation13 or modification14 is *Page 103 demonstrated. A second effort with the same arbitrators may be had only if any time limits imposed by the submission agreement have not expired.15 The remedies for flaws in arbitration awards within the statutory purview are special and exclusive. If it is assumed,arguendo, that one or more of the faults contemplated by the statute marred the original award, the parties failed to invoke any of the statutory cures. The first award was either incomplete or constructively delivered and, therefore, complete. In either event the second and third awards were nullities. This means that the status of the first award is still to be resolved. That resolution could be accomplished logically by treating the first award as complete with the premature announcement. However, that disposition would undermine defensible reasons for physical delivery to the parties. Literal receipt by the parties provides them with the rationale and detail of decision necessary to a procedurally appropriate challenge under the statute if there is to be one. Moreover, the procedural tangle here illustrates the merit of simultaneous dispatch to the parties rather than unilateral exposition of the result. Both parties should be informed at or about the same time. Completion of the award is achieved with delivery and the conditions are set for further proceedings under the statute, if any. These procedural considerations are logically implicit in the admonition in R.C. 2711.08* that a "true copy of such award without delay shall be delivered to each of the parties in interest." Accordingly, constructive delivery (even assuming that it exists in this case) is held invalid in order to avoid bypassing the legitimate objectives served by literal delivery.16 Furthermore, so much that is improper has transpired, that all prior efforts at disposing of the case on the merits are set aside.17 The trial court is directed to instruct the parties to begin the arbitration process anew and to conduct it according to the arbitration agreement and the relevant statutes as construed by this opinion. One further procedural issue remains to be addressed. V A passage in the arbitration clause of the policy provides that "the arbitration shall be conducted * * * in accordance with the usual rules governing procedure and admission of evidence in courts of law." Apparently spurred by this language the notion has been advanced in this case that arbitration proceedings should be governed by the Rules of Civil *Page 104 Procedure and that a request for reconsideration of an award ought to be deemed analogous to a Civ. R. 59 motion for a new trial. An arbitration mode equivalent to that in the Rules of Civil Procedure would destroy the benefits of private arbitration. For final and binding arbitration finds its principal virtue in circumvention of the complexities and delays inherent in court procedures. An intention to destroy that virtue will not be inferred from a statement which is only an hortatory adoption of the principle of fair process for an arbitration hearing. VI Judgment is reversed and the cause is remanded for further proceedings in accordance with this opinion. Judgment reversed and cause remanded. PATTON, J., concurs. PRYATEL, P.J., concurs in judgment only. 1 "If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile or motorcycle because of bodily injury to the insured, or do not agree as to the amount payable hereunder then each party shall, upon written demand of either, select a competent and disinterested arbitrator. The two arbitrators so named shall select a third arbitrator, or if unable to agree thereon within 30 days, then upon request of the insured or the company such third arbitrator shall be selected by a judge of a court of record in the county and state in which such arbitration is pending. The arbitrators shall then hear and determine the question or questions so in dispute, and the decision in writing of any two arbitrators shall be binding upon the insured and the company, each of whom shall pay his or its chosen arbitrator and shall bear equally the expense of the third arbitrator and all other expenses of the arbitration. Unless the parties otherwise agree, the arbitration shall be conducted in the county and state in which the insured resides and in accordance with the usual rules governing procedure and admission of evidence in courts of law." 2 Both mention $6,000 in their appeal briefs. Defendant includes that figure in its motion for summary judgment in the trial court. The amount of the initial award is not consequential for this appeal. What is of consequence is that an initial award was completed unless there was no delivery, constructive or otherwise. 3 An asterisk next to a code reference indicates that the section has been amended and the new version as it appears in the supplement is intended. 4 R.C. 2711.03*. 5 R.C. 2711.02. 6 R.C. 2711.04. 7 R.C. 2711.15. 8 See Moore v. Boyer (1884), 42 Ohio St. 312, 313; cf. the dictum in State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St.2d 326,328 [59 O.O.2d 387]. 9 R.C. 2711.08*. 10 See Citizens Bldg. of West Palm Beach, Inc., v. WesternUnion Tel. Co. (C.A. 5, 1941), 120 F.2d 982, 984: "[A]rbitrators are appointees with but a single duty, and * * * the performance of that duty terminates their authority. When an arbitral board renders a final award, its powers and duties under the submission are terminated. Its authority is not a continuing one, and, after its final decision is announced, it is powerless to modify or revoke it or to make a new award upon the same issues." 11 Exhibit "C": "Although the award had been reduced to writing and signed by the three arbitrators, the proper cover letter to counsel was not ready for mailing until the 24th of January, 1980 * * *." 12 Exhibit "C." 13 R.C. 2711.10* reads: "In any of the following cases, the court of common pleas shall make an order vacating the award upon the application of any party to the arbitration if: "(A) The award was procured by corruption, fraud, or undue means. "(B) There was evident partiality or corruption on the part of the arbitrators, or any of them. "(C) The arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced. "(D) The arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. "If an award is vacated and the time within which the agreement required the award to be made has not expired, the court may direct a rehearing by the arbitrators." 14 R.C. 2711.11 reads: "In any of the following cases, the court of common pleas in the county wherein an award was made in an arbitration proceeding shall make an order modifying or correcting the award upon the application of any party to the arbitration if: "(A) There was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award; "(B) The arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matters submitted; "(C) The award is imperfect in matter of form not affecting the merits of the controversy. "The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties." 15 R.C. 2711.10* (see final unlettered paragraph — footnote 13). The time factor is not involved in the present case. There is no time mentioned in the arbitration clause of the policy but no issue on that point has been raised. 16 The effect of a failure of mail delivery is not in this case and is not decided. 17 See App. R. 12(B).

2016-07-06 06:42:02.804892+00

McBride

The appellant, Larry D. Petrovish, presents his appeal from a judgment of the Municipal Court of Defiance, which found appellant guilty of operating a motor vehicle while his driver's license was suspended and imposed a sentence which included in the court costs the compensation for the temporary judge who was assigned to try the case. There are two assignments of error: "1. An incumbent municipal judge is without statutory authority to impose on a criminal defendant as `costs' the compensation for services of an `acting judge' required to serve when the incumbent is disqualified or removed for `bias'. A direction by the disqualified incumbent to the acting judge encouraging him to impose his compensation as `costs' on a criminal defendant represents inappropriate judicial behavior under Canon 3, `Code of Judicial Conduct'. "2. The court opinion that a valid F.R.A. Suspension was imposed by the B.M.V. is against the manifest weight of the evidence. The decision of the court is based on the wrong suspension, and the City's B.M.V. evidence discloses that the B.M.V. did not send the notice to the `last known address' of the defendant as required by law." While there is, at best, an implication that another judge influenced the assessment as additional court costs the compensation paid for the services of *Page 34 the assigned judge, the issue presented and argued on the first assignment of error is the authority of the municipal court to include as part of the judgment for fees and costs under R.C.1901.26 any part of the compensation paid to the person temporarily assigned to hear the case when the regular judge withdraws. The power and incentive of an otherwise impartial trier of the facts to consider and impose his own salary and expenses as part of a sentence for court costs has been prohibited in this state. Since this policy is not argued, it is unnecessary to consider here the fundamental principle of constitutional law that exists in this case. The appellee points to R.C. 1901.26, which provides, in part: "(A) Costs in a municipal court shall be fixed and taxed as follows: "(1) The municipal court, by rule, may establish a schedule of fees and costs to be taxed in any civil or criminal action or proceeding which fees and costs shall not exceed the fees and costs provided by law for a similar action or proceeding in the court of common pleas." However, appellee cites no local rule in support of the action in the instant case. Appellee argues that R.C. 1901.11, fixing the compensation for either an incumbent or an acting judge, does notprohibit a defendant from being required to reimburse the appropriate authority for the compensation of the judge who tried the case. It is equally true that this and related sections do not authorize the court to include such compensation or other exclusive governmental expenses in providing facilities and general services as costs of the court. Finding no authority for taxing such costs, appellee turns to provisions for felony cases in the court of common pleas for the fees (not compensation) of magistrates who handle preliminary matters in cases that come to the court of common pleas. R.C.2335.11. This section on its face has no application in the instant case. The appellee is left with no more than a claim of an unrecognized inherent power for a judge to include his own salary as court costs. What a judge may receive or collect as compensation for his services does not fall within the judicial necessity that justifies resort to inherent power; further, the inclusion of the compensation for the trier of the facts in court costs is, as stated earlier, contrary to the law and the public policy of this state. It is not necessary to respond to the argument of appellant that the incumbent judge disregarded ethical standards by influencing the assessment as court costs of personal compensation by the assigned judge. In this *Page 35 respect the evidence is insufficient and unnecessary. Whatever, if any, suggestion was made by the incumbent judge is immaterial and irrelevant on an issue resolved by the specially assigned judge. For the foregoing reasons the first assignment of error is sustained. Since the second assignment of error is based on the weight of the evidence, it is necessary to describe the record brought to this court. It consists of a transcript of the proceeding of September 10, 1987 at the time when the appellant was sentenced. There is no transcript of the evidence of the proceedings at the trial at which the appellant was found guilty. In addition, we find in the clerk's file papers which appear to be computer and other records of the Bureau of Motor Vehicles as well as a judgment entry in an appeal by Larry D. Petrovish from a license suspension in which the court permitted occupational driving privileges as a truck driver for B I Trucking, Inc. The record elsewhere indicates appellant was operating a motorcycle at the time of his arrest. As to these records, we find no certification by the court reporter that they are correct or whether they were included or excluded portions of the record as required by App.R. 9(B)(8). In addition, App.R. 9 provides that where appellant intends to urge on appeal that a finding was unsupported or contrary to the weight of the evidence, he shall include in the record a transcript of all evidence relevant to such findings. See App.R. 12(A). This was not done in this case. Appellant did file a praecipe for a partial transcript to include only the summons and a certified record of the Bureau of Motor Vehicles and indicated an intention to assign as error a failure of due process to provide reasonable notice of suspension upon which the defendant was convicted. The trial court in its judgment entry found that the BMV sent a notice to Larry Petrovish at 720 East Mulberry, Bryan, Ohio, which was returned. The court indicated that Petrovish had changed his address and was living at 105 East Hanna Street in Ney, Ohio; however, no forwarding address was provided to support that appellant was living at Ney, Ohio. The trial court found that constructive notice to the last known address was sufficient and that actual notice was not necessary, citingState v. Morrison (1982), 2 Ohio App.3d 364, 2 OBR 421,442 N.E.2d 114, and cases mentioned therein. It is our conclusion that the trial court was correct in finding that the notice sent to the last known address of appellant was sufficient and made a prima *Page 36 facie case as to such notice, and in the absence of any other evidence or testimony at the trial the judgment of the trial court must be affirmed. From the uncertified records, it is not possible to find that the appellant ever supplied the BMV his current or last address whether it may have been a post office box at Bryan, Ohio, or otherwise. From the appellee's brief we are informed that the testimony at trial revealed that during the period spanning the suspension of appellant's license he changed residences several times and that in response to a specific address at the time a notice was mailed, appellant replied that he "didn't know." While such testimony is not before this court, it is clear that an assignment claiming error based upon the manifest weight of the evidence may not be sustained when all the evidence on the issue has not been available under the appellate rules. The second assignment of error is denied. The judgment of the trial court is affirmed in all respects other than as indicated in the first assignment of error. Pursuant to our finding on the first assignment of error, the sum of $567 is hereby remitted from the court costs assessed in the sentence of the trial court. The record reveals that compensation for the assigned judge of $113.40 for each of five half days was included in the court costs for a total for judicial service of $567. Accordingly, the court costs of $593 are reduced to $26. The difference in costs, if paid, is ordered returned to appellant. The judgment is amended in accordance with this opinion. Judgment affirmed in partand reversed in part. EVANS and SHAW, JJ., concur. ROBERT L. MCBRIDE, J., retired, of the Second Appellate District, was assigned to active duty pursuant to Section 6(C), Article IV, Constitution. *Page 37

2016-07-06 06:42:03.029776+00

OPINION {¶ 1} Defendant, Carl C. Schaefer, appeals from a judgment ofthe domestic relations division of the court of common pleasfinding him in contempt of temporary orders the court hadissued. {¶ 2} Plaintiff, Ethel M. Schaefer, commenced the underlyingaction for divorce against Carl C. Schaefer on February 12, 2003.The matter was referred to the court's magistrate. After ahearing, the magistrate recommended several temporary orderswhich the trial court adopted on April 16, 2003. {¶ 3} With respect to the parties' marital residence,Carl1 was "Ordered to vacate the premises Immediately"and Ethel was "granted exclusive use of the marital residence."(Paragraph 6). {¶ 4} With respect to temporary spousal support, the followingtwo orders issued: {¶ 5} "3. TEMPORARY SPOUSAL SUPPORT {¶ 6} "DEFENDANT shall pay for temporary spousal support tothe PLAINTIFF the amount of $1,000 per month plus processing fee,beginning 4/1/03, and totaling $1,020 per month, includingprocessing fee, plus necessary medical expenses. {¶ 7} "DEFENDANT to pay $250 partial attorney fees within 90days. {¶ 8} "4. Payment of Child and Spousal Support {¶ 9} "Child support and spousal support shall be paid bypayroll deduction order (if Payor is employed) or by financialinstitution deduction order (only if Payor is self-employed)and shall be paid in equal installments corresponding to thePayor's pay periods to the Greene County Child SupportEnforcement Agency (CSEA), P.O. Box 9, Xenia, Ohio 45385. {¶ 10} "Deduction order shall be prepared by the CSEA. To bededucted from Provident Bank, Acct. #6119-412, Beavercreek OH." {¶ 11} Ethel filed charges in contempt on May 5, 2003,alleging that Carl had failed to comply with the court'stemporary orders. Hearings were held before the magistrate, whoon June 25, 2003, recommended that Carl be found in contempt forfailing to pay spousal support, as ordered. The magistraterecommended that Carl be ordered to pay the $3,000 in temporarysupport then in arrears, and that he be sentenced to serve tendays in jail on the contempt, to be suspended if spousal supportwas brought current. The magistrate also recommended that Carl befound in contempt for failing to vacate the marital residence, asordered, but recommended no penalty because he had since left.The magistrate also recommended that Ethel be awarded $500 as andfor attorney fees. {¶ 12} Carl filed objections to the magistrate's decision. Thecourt overruled the objections on October 16, 2003. Carl filed atimely notice of appeal. FIRST ASSIGNMENT OF ERROR {¶ 13} "The court erred and abused its discretion by holdingappellant in contempt for violation of a spousal support courtorder that did not exist." SECOND ASSIGNMENT OF ERROR {¶ 14} "The court's judgment of holding appellant in contemptof court for failure to pay spousal support is an abuse ofdiscretion and against the manifest weight of the evidence. {¶ 15} The evidence presented only supports the conclusionthat appellant did not interfere with the temporary court orderby intentionally or willfully denying spousal support toappellee. {¶ 16} The evidence proved that appellant did not dissipatemarital funds to prepare living quarters for himself to defeatspousal support." {¶ 17} A trial court's finding of contempt will not bedisturbed on appeal absent an abuse of discretion. State ex rel.Delco Moraine Div, Gen. Motors Corp. v. Indus. Comm. (1990),48 Ohio St.3d 43, 44. Abuse of discretion connotes more than a mereerror of law; it implies that the court's attitude isunreasonable, arbitrary, or unconscionable. Blakemore v.Blakemore (1983), 5 Ohio St.3d 217, 219. {¶ 18} Contempt lies only when it is within the contemnor'spower to perform the act prescribed by the court order and hefails to do so. Wilson v. Columbia Gas Co. (1928),118 Ohio St. 319, 328-329. The order must dispose of the matters at issue withsufficient clarity to allow the persons affected to determine,with reasonable certainty, the duties which have been imposed.Hardin v. Hardin (1952), 65 Ohio Law Abs. 538 quoting 23 OhioJurisprudence, Sec 153, p. 621. {¶ 19} The temporary order imposed a spousal supportobligation on Carl. However, the order also provided that thesupport would be paid out of funds in a specific bank accountpursuant to a deduction order prepared by the Child SupportEnforcement Agency ("CSEA"). The payments were not made becauseCSEA neglected to prepare the order. The magistrate found that,nevertheless, Carl was "fully aware that spousal support was tobe effective April 1, 2003 . . . (but) . . . made no effort whatso ever to pay the spousal support and was just sitting back andwaiting for it to be deducted from his Provident Bank account." {¶ 20} In recent years, and largely in response to therequirements attached to federal funding, legislation has beenenacted which enhances the role and authority of child supportenforcement agencies, to a point where they operate almostindependently of judicial control. CSEAs may prepare, file, serveand enforce child support orders, as the CSEA was directed to doin the present case. See Sowald/Morganstern, Baldwin's DomesticRelations Law (Fourth Ed.) Chapter 22. Courts have come to employthe CSEAs as well in matters of spousal support, as the courthere did. {¶ 21} Carl may, as the magistrate found, have just sat backand waited for the CSEA to act, but the court's temporary orderimposed no duty on him to do otherwise with respect to payment ofhis support obligation. Had he paid the amounts directly, CSEA'srecords would not reflect the payment. Indeed a double paymentmight result, and/or Carl's own efforts could have drained theaccount, preventing payment pursuant to a CSEA deduction order. {¶ 22} The trial court rejected Carl's objections to themagistrate's contempt recommendation, noting that Carl didn'tfile objections to the temporary order. However, the objectionsfor which Civ.R. 53(E)(3) provides that may be taken from amagistrate's ultimate decision on a matter referred don't applyto temporary support orders a magistrate issues, and in thisinstance would have been a vain act. {¶ 23} Magistrates are authorized by Civ.R. 75(N) and Civ.R.53(C)(3)(a) to issue temporary support orders without judicialapproval. An appeal may be taken to the court within ten days.Civ.R. 53(C)(3)(b). Here, however, the temporary support ordersthe magistrate issued on April 15, 2003 were adopted by the courtthe following day, on April 16, and then filed. Carl might haveasked the court to reconsider, but no Civ.R. 53(C)(3)(a) appealwas feasible. In any event, it is unclear just what Carl mighthave appealed vis-a-vis the contempt the magistrate and the courtlater found. {¶ 24} The temporary order imposed a duty on CSEA, not onCarl, to prepare the deduction order by which the temporarysupport the court ordered Carl to provide Ethel would be paid.CSEA's failure to act does not support a finding that Carlwilfully violated the court's support order. Therefore, the courtabused its discretion when it found Carl in contempt on thataccount. {¶ 25} The first and second assignments of error aresustained. THIRD ASSIGNMENT OF ERROR {¶ 26} "The court's judgment in holding appellant in contemptof court for willfully and intentionally failing to vacate themarital premises is an abuse of discretion." FOURTH ASSIGNMENT OF ERROR {¶ 27} "The court abused its discretion by holding appellantin contempt for not vacating the marital premises in a moreimmediate manner." {¶ 28} Failure to comply with a court order to vacate iscontempt when, among other things, the contemnor fails to showcause for not leaving the premises, See E.g. Krepfl v. Krepfl(March 6, 1992), Lake App. Nos. 91-L-014, 91-L-015. The fact thatthe contemnor did not intend to disobey the court order or thathe acted in good faith is not a defense to civil contempt.Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, 58; Stateex. rel Adams v. Sobb (1988), 39 Ohio St.3d 34, 36. {¶ 29} The temporary order that issued on April 16, 2003required Carl to leave the marital residence "immediately."Evidence offered at the hearing on the contempt charges showsthat Carl didn't vacate the residence until June 16, two monthslater and only two days before the contempt hearing. {¶ 30} Carl attributed the delay to the need to improve arun-down rental property he owned in order to make it habitable.Carl offered photos of the property and the testimony of CynthiaBurchette, whom he hired to remove debris, to show that theproperty was full of trash, infested with animals, had a badlydamaged roof, and lacked windows, lockable doors, and potablewater. Carl testified that he spent $10,650 to make the propertyhabitable, and then moved there after vacating the maritalresidence. {¶ 31} The magistrate found that the condition of thatparticular property, bad as it was, didn't prevent Carl frommoving from the marital residence to a different location whilethe repairs took place. She suggested that Carl might have lodgedwith his grown children, who were willing to take him in. Carlrejected that alternative. He said that he had wanted possessionof a motor home the parties owned to use as his residence, butthe magistrate denied him that. {¶ 32} The trial court likewise rejected Carl's objections,finding that Carl had failed to show that he was unable to findliving quarters apart from the marital residence. {¶ 33} Carl doesn't deny that he was fully aware of therequirements of the temporary order that he vacate the maritalresidence immediately. If he had $10,650 with which to improvethe property to which he later moved, he had the resources torent other quarters for the time the repairs took. That optionwas available to him. Carl's failure to employ it supports afinding of contempt. {¶ 34} The third and fourth assignments of error areoverruled. FIFTH ASSIGNMENT OF ERROR {¶ 35} "The court abused its discretion by awarding theappellee attorney fees without a reasonable basis for doing so." {¶ 36} The magistrate recommended that Ethel be awarded $500as and for attorney fees because she was required to prosecutecharges in contempt. The trial court rejected Carl's objection tothe recommendation, noting that "[t]he fees would not have beenincurred if the Defendant had complied with the temporaryorder." {¶ 37} A spousal support obligee may initiate a contemptaction for failure to pay the support. R.C. 2705.031(B)(1). Thecourt may properly award attorneys fees as costs in the action.Fry v. Fry (1989), 64 Ohio App.3d 519. That authority islargely inapplicable when no contempt is found or, as here, thefinding is reversed for an abuse of discretion. {¶ 38} Neither the magistrate nor the court related theattorneys fees award exclusively to the spousal support issue,however. Carl's failure to move from the marital residence asordered constitutes contempt of the court's temporary order. Thecourt could reasonably find that Ethel required the award inorder to protect her interest as the party who was grantedexclusive use of the marital residence. R.C. 3105.18(H). We haveheld that the section authorizes an award of attorneys fees in aproceeding to enforce a court's order. Donese v. Donese (Sept.9, 2000), Greene App. No. 2000-CA-17. {¶ 39} Carl argues that, nevertheless, the court abused itsdiscretion when it ordered him to pay $500 as and for attorneyfees because Ethel offered no evidence that the amount of feeswas reasonable, or even incurred. It is surely likely that somefee was incurred. Also, where the fee is nominal in amount, noshowing of reasonableness is required. Wolech v. Foster (1994),98 Ohio App.3d 806. A fee award in the amount of $500 has beenheld to be nominal. Beadle v. Beadle (March 15, 2004), SciotoApp. No. 03CA2911, 2004-Ohio-1400. {¶ 40} The fifth assignment of error is overruled. Conclusion {¶ 41} Having sustained the first and second assignments oferror, we will reverse and vacate the trial court's judgment ofcontempt for failure to pay temporary spousal support and thejail sentence imposed thereon. Otherwise, the judgment from whichthe appeal was taken will be affirmed. Brogan, J. and Young, J., concur. 1 For convenience and clarity, the parties will be identified by their first names.

2016-07-06 06:42:03.094525+00

OPINION Defendant-appellant Donald R. Feagin appeals two January 21, 2000 Judgment Entries of the Richland County Court of Common Pleas wherein the trial court accepted his no contest pleas, and two May 26, 2000 Judgment Entries sentencing appellant thereon. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE In September of 1998, appellant was indicted on twelve counts of non-support of dependents, in violation of R.C. 2919.21(A)(2). The first four counts resulted from nonpayment of support during the period of 1993 through 1994. The second four counts resulted from nonpayment of support during the period of 1995 through 1996. The last four counts resulted from nonpayment of support during the period of 1997 through 1998. The first eight counts of the indictment were charged as felonies of the fourth degree and the last four counts were charged as felonies of the fifth degree. At a January 21, 2000 hearing, appellant elected to be sentenced under post Senate Bill 2 law, effectively amending the level of the indicted offenses to four counts of felonies of the fourth degree and eight counts of felonies of the fifth degree. In a January 21, 2000 Judgment Entries, appellant pled no contest to counts 1 through 4, felonies of the fourth degree. In a separate January 21, 2000 Judgment Entry, appellant pled no contest to counts 5 through 12, felonies of the fifth degree. The trial court accepted appellant's no contest pleas and reserved a finding pending appellant's application to a diversion program. Appellant was subsequently rejected from the diversion program. In an April 14, 2000 Judgment Entry, the trial court found appellant guilty of the charges and ordered a presentence investigation. The trial court conducted a sentencing hearing on May 25, 2000. After the hearing, the trial court sentenced appellant in two sentencing judgment entries, each filed on May 26, 2000. The first entry sentenced appellant on "Counts 1 through 6 (F-4's)." The trial court sentenced appellant to one year for each of the six counts, to be served consecutive to each other, but concurrent with Counts 7 through 12. The trial court noted Counts 7 through 12 were felonies of the fifth degree. In the second sentencing entry, also filed May 26, 2000, the trial court sentenced appellant on Counts 7 through 12, noting each of these counts to be felonies of the fifth degree. For Counts 7 through 12, the trial court sentenced appellant to one year for each count, each to be served consecutive to each other, but concurrent with Counts 1 through 6. Appellant now appeals from the two January 21, 2000 Judgment Entries, which accepted his no contest pleas, and the two May 26, 2000 Sentencing Entries. Appellant assigns the following errors: I. THE COURT ABUSED ITS DISCRETION IN ACCEPTING THE DEFENDANT-APPELLANT'S PLEA AND SENTENCING HIM THEREON, WHERE THE DEFENDANT-APPELLANT'S PLEA WAS NOT VOLUNTARILY MADE, WHERE THE COURT DID NOT COMPLY WITH THE OHIO RULES OF CRIMINAL PROCEDURE, AND WHERE THE COURT DID NOT COMPLY WITH THE OHIO REVISED CODE, SECTION 2943.032. II. THE TRIAL COURT ABUSED ITS DISCRETION AND TRIAL COUNSEL WAS INEFFECTIVE WHERE THE DEFENDANT-APPELLANT PLEAD NO CONTEST TO AND WAS SENTENCED ON FELONY NONSUPPORT CHARGES. III. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT-APPELLANT WHERE IT DID NOT COMPLY WITH THE OHIO REVISED COSDE [SIC] SECTIONS REGARDING SENTENCING. I Appellant makes two separate arguments within his first assignment of error. First, appellant maintains the trial court failed to comply with Crim.R. 11(C) and (F) by failing to set forth the plea agreement on the record. Appellant contends appellant was unaware the maximum penalty for the offenses could apply to him because he believed he would receive diversion in exchange for his plea. Therefore, appellant argues his plea was not voluntarily made. Appellee maintains it would have been impossible for the trial court to state a plea agreement on the record, because no such plea agreement existed. In addition, appellant maintains the trial court erred in failing to comply with R.C. Section 2943.032. In the first portion of appellant's first assignment of error, appellant maintains the trial court failed to comply with Crim.R. 11(C) and (F) because it failed to state the underlying plea agreement upon which appellant entered his plea of no contest on the record in open court. Crim.R. 11 provides, in pertinent part: (C) Pleas of guilty and no contest in felony cases * * * (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following: (a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself. * * * (F) Negotiated plea in felony cases When, in felony cases, a negotiated plea of guilty or no contest to one or more offenses charged or to one or more other or lesser offenses is offered, the underlying agreement upon which the plea is based shall be stated on the record in open court. Our review on appeal is limited to those materials in the record which were before the trial court. See, State v. Ishmail (1978), 54 Ohio St.2d 4. We note no written plea agreement appears in the record. Further, no such plea agreement was stated or referenced in the transcript of the plea hearing, and no evidentiary quality material was presented to the trial court in filings subsequent to the imposition of sentence evidencing a plea agreement. The record does not affirmatively demonstrate the error claimed. Accordingly, this portion of appellant's first assignment of error is overruled. R.C. 2943.032 requires a trial court to inform the defendant of specific ramifications of the guilty or no contest plea. The statute provides, in pertinent part: Prior to accepting a guilty plea or a plea of no contest to an indictment, information, or complaint that charges a felony, the court shall inform the defendant personally that, if the defendant pleads guilty or no contest to the felony so charged or any other felony and if the court imposes a prison term upon the defendant for the felony, all of the following apply: (A) The parole board may extend the stated prison term if the defendant commits any criminal offense under the law of this state or the United States while serving the prison term. (B) Any such extension will be done administratively as part of the defendant's sentence in accordance with section 2967.11 of the Revised Code and may be for thirty, sixty, or ninety days for each violation. (C) All such extensions of the stated prison term for all violations during the course of the term may not exceed one-half of the term's duration. (D) The sentence imposed for the felony automatically includes any such extension of the stated prison term by the parole board. (E) If the offender violates the conditions of a post-release control sanction imposed by the parole board upon the completion of the stated prison term, the parole board may impose upon the offender a residential sanction that includes a new prison term up to nine months. Appellant contends the trial court failed to apprise him of the conditions set forth in R.C. 2943.032. At the January 21, 2000 plea hearing, the following dialogue took place on the record: THE COURT: * * * Mr. Feagin, we've gone through your rights. No question in my mind you understand what the rights are. The penalty in this matter is substantial. We're talking about a long, long time in a penal institution. Twelve charges. Twelve charges. * * * * * * Any violation of the rules after you got there could get you another 50 percent more time. In other words, I sentence you to 18, they can keep you for 27. If I sentence you for 10, they can keep you for 15. If I sentence you for 14, they can keep you for 21. * * * All right. On these fifth degree felonies, you go to the institution, I've already — well, I've indicated, and I indicated wrongly, if you go to the institution, you cannot be sentenced to 14 years on those charges. You can only be sentenced to eight. But that could be set out to 12 years if you violate the institutional rules. On the fourth degree felonies, you could be considered for early release and for good time served, and if you got four years — four terms on there, it could be up to six years, but you'd only serve of good time about four years. In any case, it's a long, long time. On the new charges, after you've been in the institution for whatever time I sentence you to, you could be released on post-release control and go back to the institution for a number of months if you fail to abide by the terms of post-release control. I can put you on community control, and we used to call it probation, for a period of up to five years. Any violation of community control rules would take you to the institution for up to 14 years with a fine of up to $30,000. * * * All right. Told you that there's four counts of fourth degree felony, eight counts of fifth degree felony. Total maximum terms of 14 years. Total maximum fine of $30,000. What are your pleas to these charges? MR. FEAGIN: No contest. January 21, 2000 Hearing Transcript at 11-16. When constitutionally mandated rights are at stake, a defendant must be "meaningfully informed" of the constitutionally guaranteed rights to be waived. See, Crim. 11(C). The trial court's failure to meaningfully inform a defendant he or she is waiving these rights by pleading guilty or no contest renders the plea constitutionally infirm. See, State v. Ballard 66 Ohio St.2d 473, 478. However, when dealing with the waiver of non constitutional elements mandated by rule or by statute, the trial court need only "substantially comply" with the rule or statute. Id. at 475. Where the record discloses the trial court has personally addressed a defendant during his plea hearing and has informed him of his constitutional rights, not informing the defendant of one of the non-constitutional rights is not prejudicial error and is subject to the substantial-compliance rule. Id. "Substantial compliance means that under the totality of the circumstances the defendant objectively understands the implications of his plea and the rights he is waiving." State v. Nero (1990), 56 Ohio St.3d 106. A defendant challenging his guilty plea must show the lack of compliance with this rule had a prejudicial effect. State v. Stewart (1977), 51 Ohio St.2d 86, 108. We find the trial court substantially complied with each of the subsections of R.C. 2943.032 in the above-quoted colloquy. We also note compliance with subsections (A)-(D) may no longer be necessary after State ex rel. Bray v. Russell (2000), 89 Ohio St.3d 132, wherein the Ohio Supreme Court found "bad time" to be unconstitutional. For these reasons, the second portion of appellant's first assignment of error is overruled. II In appellant's second assignment of error he maintains the trial court abused its discretion in imposing sentence because he had an un-asserted affirmative defenses to the charges. For the same reason, appellant also argues in this assignment his trial counsel was ineffective for failing to raise such affirmative defenses. Specifically, appellant maintains he was unable to provide the required support, but did provide support which was within his ability and means. However, we are without record evidence to assess the merits of appellant's claims. Accordingly, this portion of appellant's second of assignment of error is overruled. See Ishmail, supra. Appellant also maintains he was deprived effective assistance of counsel where trial counsel did not raise other pertinent defenses, to wit: the fact appellant had paid support, albeit not through the Child Enforcement Agency; the fact appellant had apparent mental or physical disabilities (appellant's brief does not state which); appellant was on Veteran's Administration Disability and food stamps; and appellant was not permitted to establish his ability to pay support over the years at issue. The standard of review of an ineffective assistance of counsel claim is well-established. Pursuant to Strickland v. Washington (1984),466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 673, in order to prevail on such a claim, the appellant must demonstrate both (1) deficient performance, and (2) resulting prejudice, i.e., errors on the part of counsel of a nature so serious that there exists a reasonable probability that, in the absence of those errors, the result of the trial court would have been different. State v. Bradley (1989), 42 Ohio St.3d 136,538 N.E.2d 373; State v. Combs, supra. 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. 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. Id. Appellant is again without record evidence to support a demonstration either prong of the standard announced in Strickland has been met. Accordingly, this portion of appellant's second assignment of error is overruled. Appellant also maintains he was improperly charged with twelve felonies because there had been no prior court finding he had failed to provide support pursuant to R.C. 2919.21(A)(2). We disagree. R.C. 2919.21(A) provides in pertinent part: (A) No person shall abandon, or fail to provide adequate support to: * * * (2) The person's child who is under age eighteen, or mentally or physically handicapped child who is under age twenty-one; * * * (G)(1) Except as otherwise provided in this division, whoever violates division (A) or (B) of this section is guilty of nonsupport of dependents, a misdemeanor of the first degree. If the offender previously has been convicted of or pleaded guilty to a violation of division (A)(2) or (B) of this section or if the offender has failed to provide support under division (A)(2) or (B) of this section for a total accumulated period of twenty-six weeks out of one hundred four consecutive weeks, whether or not the twenty-six weeks were consecutive, then a violation of division (A)(2) or (B) of this section is a felony of the fifth degree. If the offender previously has been convicted of or pleaded guilty to a felony violation of this section, a violation of division (A)(2) or (B) of this section is a felony of the fourth degree. * * * (Emphasis added). At the sentencing hearing, appellant admitted he had paid only $150 in child support. This left an arrearage of over $140,000 in back support. Tr. of May 25, 2000 Sentencing Hearing at 3, 8. Because R.C. 2919.21 does not require a prior conviction to enhance the charge from a misdemeanor to a felony, we see no error in the trial court's acceptance of appellant's no contest plea. For the same reasons, we cannot find appellant's trial counsel was ineffective for failing to argue any such "improper" enhancement from misdemeanor to felony charges of non-support. Appellant's second assignment of error is overruled. III In appellant's third assignment of error, he maintains the trial court erred in failing to comply with R.C. 2929.11, 2929.12, 2929.13, and 2929.14 in determining an appropriate sentence. We agree. R.C. 2929.14 governs the imposition of prison terms for felony offenses. As it relates to felonies of the fourth and fifth degree, the statute provides, in relevant part: 2929.14 PRISON TERMS * * * (A)(4) For a felony of the fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months. (5) For a felony of the fifth degree, the prison term shall be six, seven, eight, nine, ten, eleven, or twelve months. * * * R.C. 2929.14 provides additional requirements before a trial court may impose more than the shortest prison term, the maximum prison term, or consecutive prison terms: (B) Except as provided in division (C), (D)(2), (D)(3), or (G) of this section, in section 2907.02 of the Revised Code, or in Chapter 2925. of the Revised Code, if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender and if the offender previously has not served a prison term, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless the court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others. (C) Except as provided in division (G) of this section or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section. * * * (E) * * * (4) 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 service 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: (a) The offender committed 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. (b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct. (c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. (Emphasis added). As noted in the Statement of the Case and Facts, supra, appellant pled no contest to counts 1-4 as felonies of the fourth degree. There was also some record indication appellant had never served a prison term. Accordingly, before the trial court could impose more than the minimum prison term for appellant's offenses, it was required to make the findings set forth above in R.C. 2929.14(B). Further, before the trial court could impose consecutive sentences on these counts, it was required to make the findings set forth in R.C. 2929.14(E)(4). Accordingly, we vacate the May 26, 2000 Sentencing Entry as it relates to Counts 1-4. We further vacate appellant's sentences on counts 5 and 6. The record indicates appellant pled no contest to these charges as felonies of the fifth degree. However, the May 26, 2000 Judgment Entry sentences appellant on counts 5 and 6 as felonies of the fourth degree. Although we recognize the confusion inherent in the election procedure, the sentence must conform to the plea. If the trial court should choose to re-sentence appellant to a similar sentence, the trial court would be required to make the requisite findings under R.C. 2929.14(B), (C) and/or (E)(4). Finally, we vacate appellant's sentences on counts 7-12, and remand for re-sentencing. For the same reasons stated above, the trial court must make the findings required by R.C. 2929.14(B) and (E)(4). Further, because each of these counts were felonies of the fifth degree, the trial court must also make the requisite findings for imposition of maximum sentences pursuant to R.C. 2929.14(C). Appellant's third assignment of error is sustained. The two May 25, 2000 Sentencing Entries of the Richland County Court of Common Pleas are vacated. This matter is remanded to the trial court for resentencing consistent with law and this opinion. _______________ Hoffman, P.J. Wise, J. and Boggins, J. concur

2016-07-06 06:42:04.026+00

Valen

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 151 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 152 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 153 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 154 OPINION Defendant-appellant, Garnet Sue Cooper, appeals her convictions in the Clermont County Court of Common Pleas for four counts of rape and four counts of felonious assault. We affirm all eight of appellant's convictions. Appellant is the mother of four children: Jimmy Ratliff, born on June 6, 1982; Ashley Ratliff, born on January 22, 1986; Ernie Hinkle, Jr., born on March 13, 1990; and Fancy Hinkle, born on July 4, 1991. All four children lived with appellant and appellant's boyfriend, Ernie Hinkle, Sr., who fathered Ernie Jr. and Fancy. Appellant was aware that Ernie Sr. had been incarcerated for sexually abusing two boys. Jimmy and Ashley visited their father, Timothy Ratliff, on weekends. The children were neglected and repeatedly abused by appellant, Ernie Sr., Timothy, and others. Clermont County Children's Services received numerous complaints regarding the neglect and abuse. Brooke Lorthior, an investigative caseworker for the agency, had frequent and regular contact with appellant, the children, and Ernie Sr. over the course of several years. Lorthior also had access to the agency's records, which stretched back to Jimmy's birth. As early as February 1988 and continuing through 1997, the records revealed that the agency's caseworkers had observed that all four of the children were neglected, filthy, emotionally maltreated, developmentally delayed, and marked from physical abuse. In 1988, the agency began receiving reports from appellant that both Timothy and Ernie Sr. had sexually abused Ashley and Jimmy. Nevertheless, appellant continued to allow the children to visit Timothy and to allow Ernie Sr. to live in their home with the children. As early as 1989, when Ashley was three years old, *Page 155 a genital examination showed that she had been subject to repeated sexual abuse in the form of vaginal penetration. Another genital examination in 1994 showed that Ashley had an acute injury indicating recent sexual abuse. On that occasion, medical personnel were told that Ashley had been raped by a cousin, Ricky Belvins. Belvins was later convicted of that rape. Caseworkers finally removed all four children from appellant's home on February 7, 1997, after finding that appellant's home had no heat. The children were placed into separate foster homes, where they had no visitation with one another. While in foster care, both Ashley and Fancy made independent allegations to their foster mothers that appellant and Ernie Sr. had sexually abused them. Ashley, who was twelve years old at the time, disclosed that Ernie Sr. had sexual intercourse with her on numerous occasions and that appellant had been present during the abuse and participated in that abuse by holding Ashley down for Ernie Sr., and even placed her own fingers in Ashley's vagina. Ashley stated that Ernie Jr. and Jimmy had been forced to hold her down while the sexual abuse occurred. Ashley also stated that numerous other people, including her Aunt Debbie, Uncle Dino, "Paynter," and Ron, the landlord, had participated in sexually abusing her. In all, Ashley alleged that a total of twenty-three perpetrators had sexually abused her, either by touching her genitals or by having sexual intercourse with her. A 1997 genital examination revealed that Ashley's vagina had been penetrated. Six-year-old Fancy also disclosed to her foster mother that she had been sexually abused by Ernie Sr. and appellant. Fancy related that Ernie Sr. "bounced on [her] stomach" when both were naked and that he touched her private parts. Fancy described that she performed acts of fellatio on Ernie Sr. Fancy also related numerous incidents in which Aunt Debbie, Uncle Dino, Paynter, and Ron, their landlord, touched her genitals. Fancy also related incidents in which she was forced to touch their genitals. Ashley confirmed that she had seen Ernie Sr. place his penis in Fancy's mouth. Ernie Jr. and Jimmy also acknowledged their sisters', and their own, sexual abuse by appellant, Ernie Sr., and other people. Nine-year-old Ernie Jr. saw Ashley being sexually abused by Paynter and Ernie Sr. Ernie Jr. stated that appellant, Aunt Debbie, and Uncle Dino had placed their hands on his penis on many occasions. Both Jimmy and Ernie Jr. stated that they had been forced to hold Ashley and Fancy down while Ernie Sr. had sex with them. Jimmy confirmed that he had seen Ashley and Fancy being sexually abused by Ernie Sr. on many occasions. Each of the children displayed a variety of symptoms of mental illness. Fancy, who was diagnosed with attention deficit hyperactivity disorder, required prolonged *Page 156 psychiatric care. Ernie Jr. was diagnosed with "conduct disorder" and also required prolonged psychiatric care. Jimmy, who was diagnosed with post-traumatic stress disorder, major depression, and generalized anxiety disorder, was committed on several occasions to a psychiatric hospital. Ashley, who was also diagnosed with post-traumatic stress disorder and major depression, was committed to a psychiatric hospital on at least two occasions in May 1998 and in July 1998. When Ernie Sr. was confronted with the children's allegations of sexual abuse in July 1997, he committed suicide by firing a gun into his mouth. Timothy was later convicted of raping Ashley. The state indicted appellant on four counts of felonious assault,1 four counts of rape,2 and two counts of felonious sexual penetration.3 Each of the felonious assault charges alleged that appellant had knowingly caused serious physical harm in the form of mental illness to each of the four children. At appellant's request, the state filed a bill of particulars stating that appellant had committed felonious assault against each child by means of many acts and omissions, including her assistance in the rapes and sexual abuse and her failure to protect each child from physical and sexual abuse over his or her lifetime. At a pretrial hearing, appellant requested a more precise bill of particulars. The state, however, stated that the acts and omissions alleged as the basis for the felonious assault charges traced and mirrored the information in the children's services records that had been provided to appellant through discovery. The trial court denied appellant's request for a more specific bill of particulars. Before trial, the state filed motions to videotape the testimony of Ashley, Jimmy, and Ernie Jr. The trial court granted the motion. The testimony of Ernie Jr. and Ashley was videotaped on July 16, 1998. The trial court judge was present and ruled on the objections raised by counsel. At the time Ashley testified, both defense counsel and the trial court judge were aware that she had been in a mental facility. Ashley herself testified that she had been hospitalized on several occasions. In addition, Ashley stated in her testimony that she was taking several medications, including Mellaril and Zoloft. Appellant did not request that the trial court conduct a voir dire examination to determine whether Ashley was a competent witness. The trial judge did not suasponte question Ashley, who was twelve years old at the time. *Page 157 In a motion to suppress made before trial, appellant objected to the admission of the videotaped testimony, citing the children's age and the "taint" resulting from others' influence on them. The trial court denied appellant's motion. Immediately before trial, appellant again objected to the admission of both Ashley and Ernie Jr.'s videotaped testimony in lieu of their live trial testimony. The trial court held a hearing to determine whether the children's live testimony would result in serious emotional trauma. In that hearing, Melinda Bauer, a licensed social worker, and Dr. Paul Deardorff, a psychologist with substantial experience treating sexually abused children, testified regarding the harm the children would suffer if they were to testify at trial. Bauer testified that she had been seeing Ernie Jr. weekly for thirteen months, and she believed that there was a substantial likelihood that he would suffer serious emotional trauma if he were to testify at trial. Dr. Deardorff also testified that there was a substantial likelihood that Ashley would suffer serious emotional trauma if she were to testify at trial. Dr. Deardorff stated that he had based his opinion on records of Ashley's various hospitalizations. Using those hospital records, appellant cross-examined the doctor concerning his opinion. Ashley's hospitalization records indicated that she took psychotropic medications and that she had been in restraints due to physical self-punishment. After finding reasonable cause to believe both children would suffer serious emotional trauma, the trial court admitted the children's videotaped testimony. Appellant was tried before a jury. Before Ashley's videotaped testimony was admitted, appellant again objected, claiming that Ashley had been mentally incompetent at the time she testified. After noting that he had observed Ashley's testimony during the videotaping, the trial court judge found that nothing existed at that time to give an indication that Ashley was unable to receive and relate her just impressions. The trial court admitted the videotape. At the close of the state's evidence, appellant moved for acquittal on the felonious assault charges pursuant to Crim.R. 29. The trial court denied the motion for acquittal. The trial court also denied appellant's renewed motion for acquittal made at the close of all the evidence. The jury convicted appellant of four counts of rape and four counts of felonious assault. She was acquitted of the two felonious sexual penetration charges. Before sentencing, appellant filed a motion requesting that the trial court merge her rape convictions into her felonious assault convictions because the rapes constituted the underlying acts of felonious assault. The trial court refused to merge or dismiss appellant's rape convictions. *Page 158 The trial court sentenced appellant to serve a term of life imprisonment for each of her four rape convictions and eight to fifteen years for each of her felonious assault convictions. The trial court also found appellant to be a sexual predator. The court ordered all of appellant's sentences to be served consecutively to one another. Appellant appeals, raising six assignments of error. We address appellant's assignments of error out of order. Assignment of Error No. 5: The Trial Court Erred By Denying Defendant's Motion To Dismiss The Felonious Assault Charges. Appellant contends that the trial court erred in denying her Crim.R. 29 motion to dismiss the four felonious assault charges at the close of the state's evidence. Appellant claims that the charges should have been dismissed because many instances of neglect over each child's lifetime may not constitute a single felonious assault, as the state charged.4 Appellant also argues that the state proved the causation element of the felonious assault charges by using the separately charged rapes. The state responds that felonious assault can cover repetitive conduct over a period of years and that all the evidence established the necessary causation for the serious physical harm of mental illness. Under Crim.R. 29(A), a trial court shall order the entry of a judgment of acquittal on one or more of the charged offenses if the evidence is insufficient to sustain a conviction when examining all the evidence in the light most favorable to the state. State v. Apanovitch (1987), 33 Ohio St.3d 19, 23. In reviewing the trial court's ruling on this motion, this court must view the evidence in a light most favorable to the state. Statev. Wolfe (1988), 51 Ohio App.3d 215. Appellant was convicted of four counts of felonious assault under R.C. 2903.11(A)(1). Each of the four felonious assault charges is based upon appellant's treatment of each of her children over the course of his or her lifetime, causing his or her mental illness. The specific instances of conduct constituting the felonious assaults are enumerated in the bill of particulars. The conduct for which appellant was charged with committing felonious assault ranges from her repeated neglect of the children's education and medical needs to her physical *Page 159 and sexual abuse of the children and her failure to protect the children from being physically and sexually abused by others. Under R.C. 2903.11(A)(1), a person commits felonious assault by knowingly causing serious physical harm to another. R.C.2901.01(E) defines "serious physical harm" as "[a]ny mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment." The state's approach at trial was that all of appellant's numerous acts, taken together, resulted in each child's mental illness, therefore constituting a single count of felonious assault perpetrated on each child. On appeal, appellant claims that the trial court should have dismissed all four of the felonious assault charges because a single felonious assault charge may not be based upon numerous acts occurring over the course of many years. Our research reveals no other Ohio case in which a defendant has been convicted of a single count of felonious assault for committing several acts that have resulted in a victim's mental illness. It is clear that a defendant may knowingly cause a person to suffer mental illness constituting the "serious physical harm" necessary for a conviction of felonious assault under R.C.2903.11(A)(1) by perpetrating a single act or a single omission. For example, in State v. Hodges (1995), 107 Ohio App.3d 578,584, the defendant, who was the victim's priest and counselor, cajoled the victim into having sex with him. The defendant's act in having sex with the victim caused her to have a mental breakdown that required long-term psychiatric care. Id. The court held that Hodges committed felonious assault causing mental illness by his act in having sex with the victim, even though expert testimony indicated that other stressors may also have contributed to her mental illness. Id. Not only may a person commit felonious assault by perpetrating an act causing mental illness, but a person may commit felonious assault when his or her failure to act causes mental illness. InState v. Elliot (1995), 104 Ohio App.3d 812, 816, the defendant killed his wife and left her corpse in a place where his young son would likely find his mother's body. Elliot owed a legal duty to protect his child from harm. Id. Since the child suffered serious physical harm in the form of a mental illness as a result of Elliot's failure to act in accordance with that legal duty, the appellate court held that his failure constituted the act necessary for the crime of felonious assault. Id. While these cases show that a person's single act or omission may cause mental illness, the instant case involves numerous acts and omissions perpetrated by appellant against each of her children over the course of years causing each child's mental illness. We also recognize that a defendant may be convicted of *Page 160 several counts of felonious assault where each act results in a separate physical injury that occurs at a different time and in a different manner. See State v. Campbell (1983), 13 Ohio App.3d 338. Nevertheless, we find that R.C. 2903.11(A)(1) does not mandate that a defendant perform a single act in order to commit the crime of felonious assault by causing a single injury in the form of mental illness. The statute's broad language requires only that a defendant knowingly cause serious physical harm. The means by which a perpetrator can cause such harm, by performing either a single act or a multitude of acts, is not specifically enumerated in this section of the statute. The legislature could have specifically required that a perpetrator commit a single act in order to commit felonious assault; however, the statute does not contain this requirement. Indeed, the statute's legislative history convinces us that appellant's convictions of felonious assault under these facts is the intended result. In determining legislative intent, the court may consider a number of matters, including the object to be obtained, the circumstances under which the statute was enacted, the legislative history, and the common law or former statutory provisions. R.C. 1.49. The committee comment to H.B. 511, which codified R.C. 2903.11(A)(1), shows that the felonious assault statute replaced a number of special assault statutes that prohibited specific acts: The section replaces a number of special assault offenses while utilizing a different approach than that taken in former law. Previously, a number of statutes prohibited specific acts such as shooting, maiming, or cutting, or prohibited attacks on certain persons such as law enforcement officers. This section does not distinguish among persons and, except with respect to deadly weapons and dangerous ordnance, is not based on the means used to commit the offense. The relative gravity of this offense and of the three lesser assault offenses following it is graded according to three factors: the degree of culpability; the seriousness of the actual or potential harm involved; and whether or not a deadly weapon is used. (Emphasis added.) Committee Comment to H.B. 511, 134th Leg. (Ohio 1974). This supports our interpretation that appellant's many acts and omissions against each of her children, causing each child's mental illness, may constitute the acts necessary for a single conviction of felonious assault. The trial court also determined that the state had introduced sufficient evidence of causation for the jury to find appellant had committed felonious assault. If reasonable minds could conclude that a defendant knowingly caused each child to suffer serious physical harm, the trial court should deny a Crim.R. 29 motion. See Hodges, 107 Ohio App.3d at 584. Here, *Page 161 Dr. Deardorff testified regarding the mental illnesses that each of appellant's children suffer. For each of the children, Dr. Deardorff opined that his or her mental illness had been caused by appellant's behavior, treatment, and abuse. Appellant attempted to undermine the doctor's assessment of causation during cross-examination. Even though the doctor could not separate the children's sexual abuse from their physical and emotional maltreatment as the cause of their mental illnesses, the trial court was not required to acquit. From Dr. Deardorff's testimony, a jury could reasonably find that appellant caused "serious physical harm" in the form of mental illness that is prohibited by the felonious assault statute. Appellant's fifth assignment of error is overruled. Assignment of Error No. 1: The Trial Court Erred By Not Ordering The State To Provide In Its Bill Of Particulars Specific Information Informing Defendant Of The Particular Conduct Establishing The Four Felonious Assault Charges. Appellant contends in this assignment of error that the bill of particulars filed by the state for the felonious assault charges did not adequately apprise her of the conduct constituting the crime because it described a multitude of acts over the course of years, thus depriving her of the opportunity to adequately defend against the charges. The state responds that the bill of particulars for the felonious assault charges was adequate because it described all of the acts causing the children's serious physical harm. The indictments charging appellant with felonious assault contain only allegations that appellant knowingly caused each child serious physical harm. The bill of particulars the state filed at appellant's request, however, lists a multitude of acts perpetrated by appellant. The acts included repeated physical and sexual abuses, appellant's failure to protect each child from that abuse, and appellant's numerous other acts and omissions. As we have already determined in analyzing appellant's fifth assignment of error, appellant's four felonious assault charges were properly based upon numerous acts and omissions perpetrated against her children over the course of years. Appellant argues that, even if felonious assault may be charged in this way, the bill of particulars' vague allegations fail to provide specific information about the conduct constituting the crime so that she could not adequately defend against it. We find the bill of particulars apprised appellant with adequate specificity of the conduct constituting the crime of felonious assault. Pursuant to Section 10, Article I of the Ohio Constitution and the Sixth Amendment to the United States Constitution, an individual accused of a felony is entitled to an *Page 162 indictment setting forth the nature and cause of the accusation.State v. Sellards (1985), 17 Ohio St.3d 169, 170. In addition to the indictment, an accused may also request a bill of particulars under R.C. 2941.07, which requires the prosecuting attorney to furnish a bill of particulars setting up specifically the nature of the offense charged and the conduct of the defendant which is alleged to constitute the offense. Id. A bill of particulars is designed to provide the accused, upon proper demand, with greater detail concerning the nature of the offense charged and of the criminal conduct alleged to constitute the offense. The bill is appropriately supplied where the indictment, although legally sufficient in describing the elements of the charged offense, is so general in nature that the accused is not given a fair and reasonable opportunity to prepare his defense. State v. Gingell (1982), 7 Ohio App.3d 364, 367. The purpose of a bill of particulars is to elucidate or particularize the conduct of the accused alleged to constitute the charged offense. Sellards, 17 Ohio St.3d at 170. It is not designed to provide the accused with specifications of evidence or to serve as a substitute for discovery. Id. Here, the bill of particulars listed numerous omissions and acts by appellant that constituted the basis for each of the four felonious assault charges. As the state aptly noted at a hearing on the matter, appellant had received discovery material detailing each instance of conduct generally alleged in the bill of particulars. Moreover, the absence of specific time periods for each of the numerous acts listed does not make the bill of particulars inadequate because time was not material to the charges or to appellant's defense. See Gingell,7 Ohio App.3d at 368. The bill of particulars' enumeration of appellant's acts and omissions constituted a description of the particular conduct forming the basis of the crimes. The record shows that appellant had sufficient information regarding each instance of conduct to mount a vigorous defense against the felonious assault charges. Nothing more than that is contemplated by the statutes and criminal rules providing for a bill of particulars. See id. at 368-69. Appellant's first assignment of error is overruled. Assignment of Error No. 2: Defendant Was Denied Due Process Of Law In The Trial Below Because The Felonious Assault Charges As Described In The Bill Of Particulars Permitted The State To Present To The Jury Every Prejudicial Fact Intending To Establish That Defendant Was A Bad Parent Despite Being Wholly Irrelevant To The Charges. *Page 163 Appellant contends that the broad allegations in the bill of particulars permitted the state to introduce irrelevant evidence that unfairly prejudiced appellant because it showed only that she was a bad parent. The state answers that the trial court properly admitted the evidence relating to the felonious assault charges because the acts constituting felonious assault occurred in the same course of conduct as the rapes. Although nominally a due process allegation, appellant's assignment of error actually raises issues of relevancy, unfair prejudice, and the admission of evidence of other bad acts. Relevant evidence that tends to make the existence of any fact of consequence more or less probable is generally admissible. Evid.R. 401 and 402. However, otherwise relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Evid.R. 403. To that end, Evid.R. 404(B) prohibits the introduction of evidence of other crimes, wrongs, or acts that are wholly independent of and unrelated to the offense for which the accused is on trial in order to prove a person's character to show that he or she acted in conformance therewith. See State v. Wogenstahl (1996), 75 Ohio St.3d 344,366; see, also, State v. Trummer (1996), 114 Ohio App.3d 456, 462. A reviewing court will not reverse the trial court's judgment admitting or excluding evidence unless the trial court clearly abused that discretion, resulting in prejudice to the complaining party. State v. McCray (1995), 103 Ohio App.3d 109, 109. An abuse of discretion connotes more than a mere error of law; it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. State v. Montgomery (1991),61 Ohio St.3d 410, 413. The trial court did not abuse its discretion. The state introduced only relevant evidence that proved appellant committed the acts constituting the crimes of felonious assault. The bill of particulars lists a multitude of acts perpetrated by appellant, including repeated physical and sexual abuse and appellant's failure to protect each child from abuse that occurred over the course of years, resulting in each child's mental illness. With the bill of particulars' allegations, the state introduced evidence showing that appellant had committed the acts constituting the felonious assaults. All of the evidence appellant claims was improperly admitted as a result of the allegations in the bill of particulars constituted acts proving the crimes of felonious assault. The evidence did not constitute evidence of "other crimes," but was entirely relevant to prove the charged crimes. We fail to see how appellant could possibly be unfairly prejudiced, and thus deprived of due process, when the state introduced only evidence of acts constituting the crimes with which she had been charged. Appellant's second assignment of error is overruled. *Page 164 Assignment of Error No. 3: The Trial Court Erred By Admitting Into Evidence The Videotaped Deposition Of The Child, Ashley Ratliff. Appellant contends that the trial court judge, who was present during Ashley's testimony, should have conducted an inquiry into Ashley's mental competency before she testified via videotape given the facts within his knowledge. The state claims that the trial court did not abuse its discretion in failing to conduct a sua sponte competency hearing. We find that the trial court was not obligated to conduct such an inquiry. Under Evid.R. 601(A), every person is competent to be a witness except those of unsound mind and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truthfully. State v. Kinney (1987), 35 Ohio App.3d 84,85-86. In order for the trial court to have a sua sponte duty to inquire into a witness' competency, that competency must have been clearly called into question by the time the witness was called to the stand. Id. at 86. Even where a witness has been committed to a mental facility, that commitment does not automatically render that witness incompetent to testify if he or she has sufficient understanding to comprehend the obligation of an oath and is capable of giving a correct account of the matters seen or heard in reference to questions at issue, notwithstanding some unsoundness of mind.State v. Bradley (1989), 42 Ohio St.3d 136, 140; State v. Wildman (1945), 145 Ohio St. 379, 386. Indeed, some unsoundness of mind does not render a witness incompetent if the witness otherwise possesses the three basic abilities required for competency: the ability to accurately observe, recollect, and communicate that which goes on around him or her. Id. at 379, paragraph three of the syllabus. A trial court judge may choose to conduct a voir dire examination if he has reason to question a child's competency.State v. Clark (1994), 71 Ohio St.3d 466, 469. The trial court's decision not to conduct a voir dire examination, in the absence of a compelling reason to do so, will not be disturbed on appeal absent an abuse of discretion. Id. at 469. As provided under Evid.R. 601, the trial court initially presumed twelve-year-old Ashley to be a competent witness. Ashley was well over the age of ten at the time she testified on videotape. Under Evid.R. 601, however, Ashley's competency could be questioned by the court if she appeared to be of unsound mind. Appellant contends that the trial court should have questioned Ashley's competency *Page 165 because she had been committed to a mental facility on several different occasions, she had been in restraints in a mental facility for much of the two weeks preceding her testimony,5 and she was taking several psychotropic medications. These facts fail to meet Kinney's standard of clearly calling Ashley's competency into question. Our thorough review of Ashley's videotaped testimony indicates that she never testified in such a way as to place her competency into question, which would have necessitated a sua sponte inquiry by the trial court. Indeed, the trial court specifically noted that Ashley's behavior during her testimony indicated that she was capable of observing, recollecting, and communicating, despite any hospitalization or medication. While Ashley herself testified that she had been hospitalized three times, that she was currently hospitalized, and that she was on several medications including Zoloft and Mellaril, she demonstrated the characteristics of a coherent, rational, and intelligent twelve-year-old girl. Not only did Ashley relate her course of hospitalizations and medications, but she logically and unequivocally answered every question the prosecutor and defense counsel put to her during direct examination and cross-examination. Appellant never called Ashley's mental competency into question before or during her videotaped testimony. Ashley appeared more than capable of receiving just impressions of the facts and transactions about which she was examined and relating them truthfully. She simply gave the court no reason to question the soundness of her mind. Given Ashley's demeanor during her testimony, the trial court had no compelling reason to conduct a voir dire examination. The trial court did not abuse its discretion when it did not conduct a sua sponte inquiry into Ashley's competency after observing her testify in an entirely rational manner. Appellant's third assignment of error is overruled. Assignment of Error No. 4: The Trial Court Erred By Permitting The Introduction Into Evidence Of The Videotape Depositions Of Ashley Ratliff And Ernie Hinkle, Jr., Pursuant To R.C. 2945.481. Appellant next contends that the trial court erred in admitting the videotaped testimony of both Ashley and Ernie Jr. because the state did not offer competent evidence to support the court's finding that the children would face serious emotional trauma were they to testify. The state, however, contends that the *Page 166 evidence it offered, in the form of testimony from Bauer and Dr. Deardorff, supported the trial court's finding of serious emotional trauma so that the videotaped testimony was admissible under R.C. 2945.481(B)(1)(b). We agree that the evidence supports the trial court's admission of the videotapes into evidence in lieu of requiring the children to testify live at trial. R.C. 2945.481(B)(1)(b)6 provides that the videotaped deposition of a child victim is admissible if the trial judge determines that there is reasonable cause to believe that, if the child victim who gave the deposition were to testify in person at the proceeding, he or she would experience serious emotional trauma. In order to admit a child victim's videotaped deposition, the trial court must make a finding that the child would experience serious emotional trauma if required to testify in open court. State v. Self (1990), 56 Ohio St.3d 73, 80. As a reviewing court, we are constrained to affirm the decision of the trial court to permit the videotaped testimony if the court's findings were supported by competent, credible evidence.Id.; State v. Sibert (1994), 98 Ohio App.3d 412, 423. Our review of the record convinces us that the trial court's factual findings with respect to the use of both Ashley's videotape and Ernie Jr.'s videotape at trial were supported by competent, credible evidence. As to Ernie Jr.'s videotape, appellant claims a lack of competent and credible evidence for the trial court to find the possibility of serious emotional trauma because Bauer, a licensed social worker, was not a qualified expert under Evid.R. 702(B) who could offer her opinion regarding the harm. Initially, we fail to see a connection between the finding the trial court must make for the admission of Ernie Jr.'s videotaped testimony and the necessity for an expert's qualification under Evid.R. 702(B). R.C. 2945.481(B)(1)(b) requires a finding of serious emotional trauma. The statute does not require that the trial court consider an opinion from an expert qualified under Evid.R. 702(B) when making that finding. The trial court may make the necessary finding without an expert opinion. The trial court is only required to base its finding on competent, credible evidence. A social worker's opinion testimony can support a trial court's finding of serious emotional trauma so that a child's videotaped testimony may be admitted in lieu of live testimony, even without the social worker's qualification as an expert under Evid.R. 702(B). In Self, 56 Ohio St.3d at 80, *Page 167 the Supreme Court determined that a social worker's testimony supported the trial court's finding that serious emotional trauma would result from a child's participation in the proceeding so that videotaped testimony was admissible. Regardless, Bauer was an expert qualified under Evid.R. 702(B) to give her opinion regarding the trauma that Ernie Jr. would experience if he testified. Under Evid.R. 702(B), a witness may testify as an expert if the witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony. Several Ohio appellate districts have applied the criteria in Evid.R. 702(B) to find that a social worker's education, training, and experience are sufficient to qualify him or her as an expert. In the Matterof Rodriguez (Feb. 19, 1998), 1988 WL 15667 at *2, Ottawa App. No. OT-87-18, unreported; In the Matter of Wilson Children (May 20, 1996), 1996 WL 363434 at *4, Stark App. No. 95CA0231, unreported;State v. Curtis (Oct. 20, 1988), 1988 WL 112856 at *3, Cuyahoga App. No. 54525, unreported. Here, the trial court held a hearing on the admissibility of Ernie Jr.'s videotaped testimony at which Bauer stated her qualifications as an expert. Bauer testified that she had a master's degree in social work, that she was a licensed social worker, that she was a family and child therapist, and that she had ten years of clinical experience in working with victims of sexual abuse. In addition, Bauer testified that she had been seeing Ernie Jr. on a weekly basis for the preceding thirteen months and that she had access to all of his clinical evaluations. Bauer then testified that there was a substantial likelihood that Ernie Jr. would suffer serious emotional trauma if forced to testify. Because Bauer had education, training, and substantial experience in treating Ernie Jr., she was qualified to give her expert opinion under Evid.R. 702(B). Bauer's opinion was competent evidence upon which the trial court properly relied in determining the admissibility of Ernie Jr.'s videotaped testimony under R.C. 2945.481. As to Ashley's testimony, appellant contends that the trial court committed error in allowing Dr. Deardorff to opine that Ashley would suffer serious emotional trauma without requiring the records on which the doctor relied in forming that opinion to be admitted into evidence. Under Evid.R. 705, an expert may testify in terms of opinion or inference and give his reasons therefor after disclosing the underlying facts and data. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing. Evid.R. 703. In Sibert, 56 Ohio St.3d at 81, the court addressed the facts that Evid.R. 705 requires an expert to disclose when he or she offers an opinion about a child victim's possible emotional trauma for purposes of R.C. *Page 168 2945.481. Before giving his opinion, a doctor who had assessed the children testified that he had administered a variety of tests, observed the children, and interviewed the children several times. Id. The court held that the doctor's statements about the data he used adequately set forth the underlying facts and the basis for his opinion. Id. As in Sibert, Dr. Deardorff adequately set forth the facts forming the basis for his opinion that Ashley would suffer serious emotional trauma were she to testify live. Dr. Deardorff, a psychologist with substantial experience treating sexually abused children, testified that he conducted a clinical interview with Ashley on one occasion. His opinion was based, in part, on his interview notes. Dr. Deardorff also stated that he had reviewed records from two of Ashley's three hospitalizations, noting that Ashley had been taking several different medications and that she had been in physical restraints during her July 1998 hospitalization. Dr. Deardorff's testimony adequately set forth the facts forming the basis for his opinion. We note here that Evid.R. 703 only requires that the doctor base his opinion upon facts or data perceived by him. The rule's disjunctive language allows, but does not require, those facts or data to be admitted into evidence. Once the doctor testified to his opinion, he was required to disclose the data pursuant to Evid.R. 705. Nothing required the records on which the doctor relied to be admitted into evidence. The doctor's disclosure of facts, without admission of the records, constituted an adequate basis so that the trial court properly allowed him to testify as to his expert opinion. See State v. Barton (1991), 71 Ohio App.3d 455, 468. The trial court's findings as to the admission of both Ernie Jr. and Ashley's videotaped depositions are supported by competent, credible evidence. Appellant's fourth assignment of error is overruled. Assignment of Error No. 6: The Trial Court Erred By Denying Defendant's Motion For Dismissal Of The Rape Convictions. Appellant claims that the trial court should have dismissed her rape convictions because they arose from the same conduct constituting the felonious assault charges and that the trial court's failure to do so subjects her to double jeopardy. The state responds that appellant may be convicted of all counts of rape and felonious assault. The double jeopardy protections afforded by the federal and state constitutions guard citizens against both successive prosecutions and cumulative punishments for the same offense.State v. Rance (1999), 85 Ohio St.3d 632, 634. In Rance, the Supreme Court of Ohio set out the appropriate analysis to be used in determining whether two offenses are the "same *Page 169 offense" for double jeopardy purposes. The court ruled that the elements of alleged allied offenses are to be compared in the abstract, overruling prior cases and language to the contrary. Id. at 632, paragraph one of the syllabus. Under Rance, when determining whether two or more offenses are allied offenses of similar import, the court should assess, by aligning the elements of each crime in the abstract, whether the statutory elements of the crimes "correspond to such a degree that the commission of one crime will result in the commission of the other." Id. If the elements of the crimes correspond, the defendant may not be convicted of both under Ohio's merger statute, R.C. 2941.25(B), unless the court finds that the defendant committed the crimes separately or with separate animus.Rance, 85 Ohio St.3d at 638-639. Using essentially the argument rejected in Rance, appellant contends that she cannot be convicted of both felonious assault and rape because the same act provided the grounds for both charges. Id. at 634. We likewise reject appellant's argument. Using the appropriate framework, we compare the elements of felonious assault and the elements of rape. To commit the crime of felonious assault with which appellant was charged, the state was required to show that she knowingly caused serious physical harm to another person. R.C. 2903.11(A)(1). To commit the crime of rape with which appellant was charged, the state was required to show that she engaged in sexual conduct with another person, who was not that person's spouse and was less than thirteen years of age. R.C. 2907.02(A)(1)(b). The elements of felonious assault and rape do not overlap; each crime requires the proof of acts not required in proving the other. State v. Jones (1992), 83 Ohio App.3d 723, 738-739. The commission of rape does not necessarily result in felonious assault, and vice versa. See id. An individual may therefore commit one crime without also committing the other. Since the elements of the crimes do not correspond, we need not determine whether appellant committed each of the crimes with a separate animus. See Rance, 85 Ohio St.3d at 638-39. Accordingly, appellant's convictions of four counts of rape and four counts of felonious assault did not subject her to double jeopardy. The trial court correctly refused to either dismiss her rape convictions or otherwise merge the rape convictions into her felonious assault convictions. We overrule appellant's sixth assignment of error. ___________________________ VALEN, J. YOUNG, P.J., and WALSH, J., concur. 1 R.C. 2903.11(A)(1). 2 R.C. 2907.02(A)(1)(b). 3 R.C. 2907.12(A)(1)(b). 4 Appellant raises this issue within both his first and fifth assignments of error. Since the issue revolves around the propriety of the state's method of charging the felonious assaults, it is better addressed as part of our analysis regarding appellant's motion to dismiss the charges under Crim.R. 29. We engage in a separate, but related, analysis for appellant's assignment of error regarding the bill of particulars. 5 Although appellant's brief indicates that Ashley had been in restraints for much of the two weeks preceding her testimony, the record indicates only that Ashley had been in restraints at some point during her July 1998 hospital stay. The record does indicate that extensive discussions regarding Ashley's hospitalization occurred off the record. 6 This statute is the recodified version of R.C.2907.41(B)(1)(b), which contained precisely the same standard for a trial court's determination whether to allow videotaped testimony of a child victim in lieu of live testimony. *Page 170

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JUDGMENT ENTRY. This appeal is considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, and this Judgment Entry shall not be considered an Opinion of the Court pursuant to S.Ct.R.Rep.Op. 3(A). On March 31, 2003, shortly after midnight, defendant-appellant Tony DeJohn was arrested for driving under the influence of alcohol after a police officer administered field sobriety tests. Prior to trial, DeJohn moved to suppress the results of those tests because they were not administered in strict compliance1 with standardized testing procedures. The trial court agreed with DeJohn and suppressed the results of the field sobriety tests, but held that the police officer still had probable cause to arrest DeJohn for drunk driving based on the totality of the circumstances surrounding the traffic stop. Because the trial court ultimately did not suppress all the evidence, DeJohn entered a plea of no-contest to driving under the influence of alcohol in violation of R.C. 4511.19(A)(1) and crossing a marked lane in violation of R.C. 4511.33. DeJohn now appeals his convictions,2 bringing forth a single assignment of error in which he argues that the trial court erred in denying his motion to suppress "based on a finding of probable cause." We are unpersuaded. In State v. Homan,3 the Supreme Court of Ohio held that while field sobriety tests must be administered in strict compliance with standardized procedures, probable cause to arrest does not necessarily have to be based, in whole or in part, upon a suspect's poor performance on one or more of these tests. "The totality of the facts and circumstances can support a finding of probable cause to arrest even where no field sobriety tests [have been] administered or where * * * the test results must be excluded for lack of strict compliance."4 Accordingly, we must determine whether the police officer here had probable cause to arrest DeJohn absent the results of the field sobriety tests. Upon a review of the record, we conclude that he did. Here, Officer Brian Schlasinger testified that he had heard a police broadcast warning of a possible drunk driver in his vicinity. Schlasinger testified that he stopped DeJohn's car because it matched the description of the vehicle in the dispatch and because he had observed DeJohn make a "wide" turn from an exit ramp and then twice cross over the double-yellow line by at least a foot. During the traffic stop, Schlasinger noticed that DeJohn's eyes were glassy, watery and "kind of red," and he also detected a "strong odor" of an alcoholic beverage emanating from DeJohn. DeJohn admitted to the officer that he had consumed one beer at the Argosy Casino that evening. Schlasinger asked DeJohn to perform two field sobriety tests, both of which he failed. Subsequently, Schlasinger arrested DeJohn for driving under the influence of alcohol. Excluding the field sobriety tests, we hold that the other observations of the police officer provided probable cause to arrest DeJohn for driving under the influence of alcohol.5 Accordingly, the assignment of error is overruled, and the judgment of the trial court is 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. Hildebrandt, P.J., Gorman and Painter, JJ. 1 We note that the Ohio legislature has amended R.C. 4511.19(D)(4)(b) to require only that field sobriety tests be administered in substantial compliance with the procedures promulgated by the National Highway Traffic Safety Administration ("NHTSA"). This amendment became effective April 9, 2003. Since DeJohn was arrested on March 31, 2003, he falls under the previous statute that requires strict compliance with the NHTSA procedures. 2 DeJohn filed a separate notice of appeal for his conviction under R.C. 4511.33, which was assigned appeal number C-040228. DeJohn has not set forth any assignments of error or arguments regarding that conviction. Accordingly, we affirm the judgment of the trial court in the appeal numbered C-404228. 3 (2000), 89 Ohio St.3d 421, 732 N.E.2d 952. 4 Id. at 427. 5 See Homan, supra; State v. Kiefer, 1st Dist. No. C-030205, 2004-Ohio-5054; State v. Lopez, 1st Dist. Nos. C-020516 and C-02051, 2003-Ohio-2072 (probable cause to arrest for driving under the influence of alcohol when defendant was speeding, arresting officer smelled a strong odor of alcohol on defendant's breath, and defendant had bloodshot eyes).

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JOURNAL ENTRY and OPINION {¶ 1} Defendant-appellant, John Gooch ("Gooch"), appeals the sentence imposed by the trial court at his resentencing. Finding some merit to the appeal, we reverse and remand the case for resentencing. {¶ 2} In July 2003, Gooch pled guilty to sexual battery and disseminating matter harmful to a juvenile. In August 2003, he pled guilty to trafficking in drugs. He was sentenced to two years for the sexual battery charge and a concurrent eight-month term on the dissemination charge. He also received twelve months on his drug conviction, to be served consecutive to the two-year term. {¶ 3} Gooch appealed his guilty plea and sentence. We affirmed his conviction but remanded the case to the trial court for resentencing because the trial court had not made the appropriate findings to impose consecutive sentences. State v.Gooch, 162 Ohio App.3d 105, 2005-Ohio-3476, 832 N.E.2d 821. Although not raised by either party on his first appeal, we sua sponte reviewed whether the consecutive sentence violated the U.S. Supreme Court's decision in Blakely v. Washington (2004),542 U.S. 296, 159 L.Ed.2d 403, 124 S.Ct. 2531. Gooch, supra. Based on our decision in State v. Lett, 161 Ohio App.3d 274,2005-Ohio-2665, 829 N.E.2d 1281, we determined that R.C.2929.14(E), which governs the imposition of consecutive sentences, did not implicate the Sixth Amendment as construed inBlakely.1 {¶ 4} Upon remand, the trial court sentenced Gooch to twelve months on his drug conviction to be served consecutive to the two years he had already served for his sex offenses. Although the journal entry indicates that Gooch was sentenced to twelve months, the transcript reveals that the lower court never informed Gooch of his specific sentence.2 {¶ 5} Gooch again appeals his sentence, raising one assignment of error, in which he argues that the trial court erred when it resentenced him to a consecutive term of incarceration. {¶ 6} Although the transcript is silent as to the actual sentence imposed, Gooch and the State both contend that the trial court imposed a sentence of twelve months to run consecutive to the two-year sentence he had already served pursuant to the provisions of R.C. 2929.14(E)(4). The Ohio Supreme Court has recently declared that statute unconstitutional and excised it from the statutory scheme. State v. Foster, 109 Ohio St.3d 1,2006-Ohio-856, 845 N.E.2d 470, applying United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621; Blakely v.Washington (2004), 542 U.S. 296, 124 S.Ct. 2531,159 L.Ed.2d 403, and Apprendi v. New Jersey (2000), 530 U.S. 466,120 S.Ct. 2348, 147 L.Ed.2d 435. {¶ 7} In Foster, supra at ¶¶ 61, 64, and 67, the Ohio Supreme Court held that judicial factfinding to overcome the minimum sentence or to impose the maximum or a consecutive sentence is unconstitutional in light of Blakely. The Foster court also severed and excised, among other statutory provisions, R.C. 2929.14(E)(4), because imposing the maximum or a consecutive sentence requires judicial factfinding. Id. at ¶¶ 97 and 99. "After the severance, judicial factfinding is not required before a prison term may be imposed within the basic ranges of R.C.2929.14(A) based upon a jury verdict or admission of the defendant." Foster, supra at ¶ 99. As a result, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings and give reasons for imposing maximum, consecutive or more than the minimum sentence." Foster, supra at paragraph seven of the syllabus and State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855,846 N.E.2d 1, paragraph three of the syllabus. {¶ 8} Although the court made the appropriate findings as then required by R.C. 2929.14(E)(4), the court relied on a severed, excised, and unconstitutional statute in imposing Gooch's sentence. Therefore, Gooch's sentence must be vacated and the matter remanded to the trial court for resentencing in accordance with Foster. See Foster, supra at ¶ 103. Thus, the sole assignment of error is sustained.3 {¶ 9} Accordingly, we vacate Gooch's sentence, and remand this matter for resentencing on the drug conviction. It is, therefore, ordered that said appellant recover of said appellee 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 Cuyahoga County Court of Common Pleas 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 Patricia Ann Blackmon, J. concur. 1 Our decision in Lett was overruled by In re Ohio Crim.Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, _88. 2 Neither party raises this issue for our review. However, the instant appeal involves only the twelve-month sentence on the drug offense. 3 We also note that the trial court failed to advise Gooch of post-release control. "When a trial court fails to notify an offender about post-release control at the sentencing hearing * * * it fails to comply with the mandatory provisions of R.C.2929.19(B)(3)(c) and (d), and, therefore, the sentence must be vacated and the matter remanded to the trial court for resentencing." State v. Jordan, 104 Ohio St.3d 21, 28,2004-Ohio-6085, 817 N.E.2d 864.

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OPINION *Page 3 {¶ 1} Appellant David Colaner, Sr. ("Father") appeals the July 24, 2007 Judgment Entry entered by the Tuscarawas County Court of Common Pleas, Juvenile Division, which terminated Father's parental rights, privileges and responsibilities with respect to his minor son and placed the child in the permanent custody of appellee Tuscarawas County Job and Family Services ("the Department"). STATEMENT OF THE CASE AND FACTS {¶ 2} On June 30, 2005, the Department filed a Complaint in the Tuscarawas County Court of Common Pleas, Juvenile Division, alleging Anna Colaner (DOB 7/14/90), David Colaner, Jr. (DOB 9/29/94), Katelyn Colaner (DOB 9/19/98), and James Colaner (3/21/00) were neglected and dependent children. The biological parents of the children are Father and Edna Merrianne Gambs ("Mother"). {¶ 3} The Complaint was filed as a result of incidents occurring on June 27, 2005. On that day, Deputy Chris Douglas of the Tuscarawas County Sheriffs Department was dispatched to the Colaner residence to investigate a complaint from an individual who purchased a puppy from Father. Sgt. Douglas arrived at 4:35pm and found Anna babysitting David. Anna indicated she did not know Father's whereabouts or when he would return. Sgt. Douglas subsequently learned there was an outstanding warrant for Father's arrest. At 6:00pm, the sheriff's department dispatcher reported a call from an individual claiming to be Father and advising he would not be home for several days. Sgt. Douglas became concerned the children would be unsupervised for several days, including overnights, and reported the situation to the Department. *Page 4 {¶ 4} Sgt. Douglas along with Jaime Grunder, an investigator in the Protective Unit of the Department, and Dep. Rennicker proceeded to the Colaner residence where they found Anna and the youngest sibling, Jamie. After Anna granted them permission to enter the home, Sgt. Douglas and Grunder found the residence to be in deplorable condition. The carpet was cluttered, filthy, and stained with urine and feces. Sgt. Douglas and Grunder observed an oxygen tank located in the dining room with an ashtray situated nearby. Sgt. Douglas and Grunder also found twenty-two dogs and puppies, some of which were newborn. While at the Colaner residence, Sgt. Douglas and Grunder became concerned about the supervision of the children as well as ongoing allegations of inappropriate sexual conduct made by Father and the children against Mark Gambs, Mother's husband. The children were removed from the residence and placed with relatives under a safety plan. {¶ 5} The Magistrate conducted an adjudicatory hearing on August 10, 25, and 30, 2005. Via Decision filed September 19, 2005, the Magistrate found there was no clear and convincing evidence the Colaner children were neglected and the neglect charge was dismissed. However, the magistrate found the children were dependent and placed them in the temporary custody of the Department. The matter proceeded to disposition on September 27, 2005, at which time the trial court adopted the case plan and ordered the children remain in the temporary custody of the Department. {¶ 6} Father filed timely objections to the magistrate's decision. The trial court conducted an objection hearing on November 21, 2005. Via Judgment Entry filed November 30, 2005, the trial court overruled Father's objections and adopted the magistrate's decision adjudicating the children dependent. Father filed a timely appeal *Page 5 to this Court, seeking review of the trial court's finding of dependency. This Court affirmed the trial court's decision. In theMatter of Colaner Children (May 2, 2006), Tuscarawas App. No. 2005AP120084, unreported. {¶ 7} Prior to this Court's issuing its opinion, Father filed a motion for visitation, and Mother filed a motion for increased visitation and custody. The Department had terminated Father's supervised visits as the result of his engaging in a pattern of inappropriate and threatening behavior toward Beth Bertini, a social worker. The trial court subsequently placed the children in the temporary custody of Mother under the protective supervision of the Department. Following a hearing on December 5, 2006, David, Jr. was placed in the temporary custody of the Department. Mother reported she discovered drawings by David, Jr. which she perceived as threats to her safety and the safety of the other children. The Department and the guardian ad litem expressed frustration with Mother due to her failure to follow through with the necessary counseling for David, Jr. The Department and the guardian ad litem believed Mother had actually set up David, Jr. to fail, having no intention of maintaining him in her home long term. {¶ 8} Father's parents, Charles and Norene Colaner, came forward and requested a home study. The Department requested Grandparents undergo psychological evaluations prior to the Department's recommending placement because of Grandparents' earlier behavior. As of the Department's filing its Motion to Modify prior Disposition on March 1, 2007, Grandparents had failed to undertake the evaluations or maintain contact with the Department. The trial court conducted a hearing on the Department's motion on April 11, 2007. With the consent of both parents and upon recommendation of the guardian ad litem, the trial court ordered Anna, *Page 6 Katelyn, and Jamie remain in the custody of Mother and the Department's protective supervision over the children be terminated. Mother advised the trial court she was not opposed to granting permanent custody of David, Jr. to the Department. Father, however, did oppose such disposition. The trial court scheduled a permanent custody hearing for July 12, 2007. {¶ 9} Following the trial court's changing the custody status of Anna, Katelyn, and Jamie, the Department filed a proposed amendment to the case plan to update the strengths and concerns of the case relative to David, Jr. Grandparents filed an objection to the case plan, which the trial court dismissed, finding Grandparents had no legal standing to file such motion. Subsequently, the guardian ad litem filed his report, expressing his opinion David, Jr.'s best interest would be served by granting permanent custody to the Department as such would offer the boy the possibility of a stable and secure adoptive placement. The guardian indicated placing David, Jr. with Grandparents would ensure the boy would be exposed to Father and Father's controlling, disruptive and defiant behaviors. The guardian asked David, Jr. with whom he would like to live if he could decide, and the boy never mentioned Father or Grandparents. {¶ 10} Father did not appear at the permanent custody hearing as he is battling cancer and lives in a nursing home. Grandparents presented five witnesses on their behalf. These individuals have known Grandparents for as long as fifty years, and described them as honest and hardworking people. The witnesses also described Grandparents as kind, loving and nurturing. *Page 7 {¶ 11} Grandparents had been married for 47 years. Grandfather was an Ohio Highway patrolman, and retired from Gradall Company after 22 years of employment. Neither Grandfather not Grandmother had any criminal conviction of any kind. Grandparents raised two other children, both of whom are in successful marriages with their own children. Grandfather testified the Department had advised him he and Grandmother needed to have psychological evaluations before the trial court would consider them for placement. Grandfather explained they did not undergo the evaluations because of the cost and his belief they did not need them. When Grandparents were eventually evaluated, the assessments indicated they both would be appropriate parents. The Department found their home to be a suitable place to raise a child. Neither Grandfather nor Grandmother fully acknowledged David, Sr.'s negative behavior. They were reluctant to pass any blame on Father or condemn his manner of handling his divorce from Mother. Both Beth Bertini and the guardian ad litem expressed concerns over Grandparents' commitment to preventing David, Jr. from having contact with Father. {¶ 12} Via Judgment Entry filed July 24, 2007, the trial court terminated Father's parental rights, privileges and responsibilities with respect to David, Jr., granted permanent custody of the boy to the Department, and denied Grandparents' motion for custody. {¶ 13} It is from this judgment entry Father appeals, raising as his sole assignment of error: {¶ 14} "I. THE TRIAL COURT'S DECISION TO DENY THE PATERNAL GRANDPARENTS MOTION FOR CUSTODY AND GRANT PERMANENT CUSTODY *Page 8 TO TUSCARAWAS COUNTY JOB AND FAMILY SERVICES IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE PURSUANT TO R.C. 2151.414." {¶ 15} This case comes to us on the expedited calendar and shall be considered in compliance with App. R. 11.1(C). I {¶ 16} In his sole assignment of error, Father maintains the trial court's decision to deny Grandparents' Motion for Custody and to grant permanent custody of David, Jr. to the Department was against the manifest weight of the evidence. {¶ 17} As an appellate court, we neither weigh the evidence nor judge the credibility of the witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence.C.E. Morris Co. v. Foley Constr. (1978), 54 Ohio St.2d 279,376 N.E.2d 578. {¶ 18} Furthermore, it is well-established "[t]he discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned." In reMauzy Children (Nov. 13, 2000), Stark App. No. 2000CA00244, quoting In reAwkal (1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424. *Page 9 {¶ 19} R.C. 2151.414 sets forth the guidelines a trial court must follow when deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court schedule a hearing, and provide notice, upon filing of a motion for permanent custody of a child by a public children services agency or private child placing agency that has temporary custody of the child or has placed the child in long-term foster care. {¶ 20} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to grant permanent custody of the child to the public or private agency if the court determines, by clear and convincing evidence, it is in the best interest of the child to grant permanent custody to the agency, and that any of the following apply: (a) the child is not abandoned or orphaned, and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents; (b) the child is abandoned; (c) the child is orphaned and there are no relatives of the child who are able to take permanent custody; or (d) the child has been in the temporary custody of one or more public children services agencies or private child placement agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999. {¶ 21} In determining the best interest of the child at a permanent custody hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including, but not limited to, the following: (1) the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; (2) the wishes of the child as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child; (3) the custodial history of the child; and (4) the *Page 10 child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody. {¶ 22} Specifically, Father argues the trial court failed to consider the best interests of David, Jr. in reaching its decision to deny Grandparents' Motion for Custody. Father explains David, Jr. had been moved from one placement to another, and the Department had "completely cut [the boy] off from all ties to any blood relatives". Brief of Appellant at 9. Father concludes, "With a father who is too ill to care for him, a mother who abandoned him, and TCJFS inability to find permanent placement for him, despite shuffling him to three (3) different foster homes while he was in their custody, it was in the best interests of the minor child to placed [sic] with his maternal grandparents, Charles and Norene Colaner." Id. {¶ 23} R.C. 2151.412(G) sets forth the general priorities by which a public children's services agency and the trial court shall be guided with regard to the development and review of the case plan. R.C.2151.412(G)(2) provides if a child cannot be placed in the legal custody of his parents, the child should be placed "in the legal custody of a suitable member of the child's extended family[.]" However, "Ohio's Courts have consistently recognized the language in R.C. 2151.412(G) is precatory, not mandatory * * * [R.C. 2151.412] does not command the juvenile court to act in a specific manner. Instead, the statute sets out general, discretionary priorities to guide the court. So while the guidelines may be helpful to the juvenile court, it is not obligated to follow them". See, In Re: Halstead, Columbiana App. No. 04CO37, 2005-Ohio-403; In Re: Hyatt (1993), 86 Ohio App. 3d 716, 722. *Page 11 {¶ 24} Recognizing the general priorities regarding placement of a child are discretionary, we, nonetheless, find the trial court should have granted legal custody of David, Jr. to Grandparents. The trial court voiced its concerns about Grandparents' ability to influence and discipline David, Jr. in an appropriate way, reasoning Father was raised by Grandparents and they are reluctant to view Father's behavior negatively. We find the fact a parent wants to believe or refuses to condemn his adult child does not equate to an inability of that parent to raise his grandchild in an appropriate manner. The testimony noted, supra, clearly indicated Grandparents have proved successful parents in the past. Although David, Jr. did not express a specific desire to live with Grandparents, he did express his desire to maintain a relationship with his sisters. Grandparents would be able to keep this sibling bond strong and in tact. Further, David, Jr. would have the benefit of time with his extended family — aunts, uncles, and cousins. At the permanent custody hearing, Grandparents each testified they would not allow Father to see David, Jr. We have no reason to disbelieve their testimony regardless of their unwillingness to see the negative behaviors of their son and note Father's health prognosis makes future contact between David, Jr. and Father unlikely even if Grandparents would break their promise.1 {¶ 25} Father's sole assignment of error is sustained. *Page 12 {¶ 26} The case is reversed and the matter remanded to the trial court for further proceedings consistent with this opinion and the law. Hoffman, P.J., Farmer, J. and Delaney, J. concur *Page 13 JUDGMENT ENTRY For the reason stated in our accompanying Memorandum-Opinion, the case is reversed and the matter remanded to the trial court for further proceedings consistent with this opinion and the law. Costs assessed to Appellee. 1 In such an event, the Department would be able to reinitiate the appropriate proceeding to remove David, Jr. from the custody. *Page 1

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OPINION Plaintiffs-appellants David J. Vince, Individually and as Administrator of the Estate of David M. Vince, et al. appeal the Judgment Entry of the Stark County Court of Common Pleas granting summary judgment in favor of defendant-appellee the City of Canton. STATEMENT OF THE FACTS AND CASE On June 9, 1995, David M. Vince was operating his new Honda motorcycle on Fulton Road in Canton, Ohio, when he lost control of the vehicle and crashed. David M. Vince died as a result of the injuries he sustained during the crash. On April 11, 1996, appellants filed a complaint in the Stark County Court of Common Pleas against the City of Canton alleging that an agent of the City, a police officer in the Canton Police Department, negligently, recklessly, wilfully, and with great disregard for the safety of the decedent, engaged the decedent in a high speed pursuit which resulted in the fatal crash. The complaint further alleged that the City's officer negligently, wilfully, wantonly, and recklessly failed to operate his patrol car in a safe and reasonable manner during the pursuit. On May 6, 1996, the City filed a timely answer to the complaint. Thereafter, the parties engaged in discovery. On February 7, 1997, the City filed a Motion for Summary Judgment. Via Judgment Entry dated July 31, 1997, the trial court granted the City's motion. It is from this Judgment Entry appellants prosecute this appeal raising the following assignments of error: I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED SUMMARY JUDGMENT FOR THE APPELLEE WHERE THERE REMAINS A MATERIAL ISSUE OF FACT AS TO WHETHER THE APPELLEE'S AGENT WAS THE DIRECT AND PROXIMATE CAUSE OF DAVID M. VINCE'S DEATH. II. THE TRIAL COURT ABUSED ITS DISCRETION, WHEN IT GRANTED SUMMARY JUDGMENT FOR APPELLEE WHERE THERE REMAINS A MATERIAL ISSUE OF FACT AS TO WHETHER THE APPELLEE IS ENTITLED TO SOVEREIGN IMMUNITY. I The following facts are necessary for our disposition of this appeal. Between 7:30 and 8:00 p.m. on June 9, 1995, Patrolman Rodney K. Smith of the Canton Police Department observed a group of seven or eight motorcyclists traveling west on West Tuscarawas Avenue from the downtown Canton area. As the group cleared the intersection of West Tuscarawas and Cleveland Avenues, one cyclist, who was riding a bright florescent, crotch rocket style motorcycle, and was wearing a florescent colored helmet, accelerated and popped a wheelie. As the cyclists proceeded through the intersection of West Tuscarawas and McKinley Avenues, Patrolman Smith activated his emergency lights, which caused the group to speed off. The officer specifically pursued the cyclist who had popped the wheelie. The rider continued down West Tuscarawas Avenue at a high rate of speed, ignoring Patrolman Smith's signal to stop. The rider proceeded to the expressway, at which time the officer lost sight of him. Smith terminated the pursuit. During the chase, Smith was unable to obtain the license plate information of the motorcycle. Thereafter, Smith resumed his normal patrol. Approximately one-half hour later, the officer observed two motorcycles, one of which Smith believed to be the vehicle from the previous incident. Smith activated his emergency lights and siren, and signaled for the cyclist to stop. However, the rider fled. Again, Patrolman Smith pursued the vehicle. This time, Smith was able to obtain a license plate number. However, because the plate was a temporary tag, dispatch was unable to provide Smith with the name of the registered owner. The Can-Com supervisor advised Smith to terminate the pursuit if the cyclist did not stop immediately. Per this instruction, Smith terminated the chase. Shortly thereafter, Smith observed a motorcycle traveling at a high rate of speed on Shorb Avenue. Again, Smith activated his emergency lights and siren, and pursued the vehicle. During the pursuit, the officer advised Can-Com that he was in pursuit of a motorcycle which he believed was the same one from the previous incidents. Again, the supervisor instructed Smith to terminate the pursuit if the cyclist did not immediately comply with his command to stop. During his deposition, Smith testified that upon receiving those instructions, he de-activated his lights and siren, stopped his vehicle for a moment to recollect his thoughts, and, thereafter, proceeded to patrol his enforcement area. As he traveled toward Interstate 77, Smith came across an accident. Upon viewing the accident scene, Smith realized the motorcycle involved was the same one he had pursued earlier that evening. At approximately 9:45 p.m., David Brown and his family crossed Fulton Road, traveling east on 18th Street. He and his wife, who was in the front passenger seat, observed a motorcycle and a car traveling west on 18th Street at a high rate of speed. As Mr. Brown started to make a left-hand turn off of 18th Street onto Owens Court, he decided to stop and wait until the vehicles passed because of the speed at which the other vehicles were traveling. When the vehicles passed, Mr. and Mrs. Brown realized the motorcycle was being followed by a police car. According to Brown and his wife, the patrol car did not have its emergency lights or siren activated. Thereafter, the couple heard the motorcycle attempting to slow down, followed by the screech of the police car's tires. Mr. Brown traveled side roads back to Fulton Road. Upon returning to Fulton Road, the Browns observed the police car, stopped near the intersection of 23rd Street and Fulton with its emergency lights activated. As the Browns approached the scene, the couple witnessed the motorcyclist lying on the ground with his motorcycle approximately 15 yards away from him. Beth Buzille, who was working as a car hop at Woody's Root Beer Stand on Fulton Road on the night of the accident, heard a motorcycle come over the hill on Fulton. As she turned her attention to the sound of the vehicle, she observed a motorcycle driving north on Fulton at a very high rate of speed. Thereafter, she noticed the driver look over his shoulder. At that moment, the motorcycle was set off balance and the driver lost control. Buzille did not witness a police cruiser in pursuit of the motorcycle. She recalled that an officer arrived at the scene approximately 30 seconds after the accident occurred. Phillip Sedlacko was patronizing Woody's Root Beer Stand on the evening of the accident. Sedlacko, who was an off-duty police officer with the Hills Dales Police Department, observed a motorcycle travel around the bend along Fulton Road at a high rate of speed. He noticed the driver was unable to control the cycle as it rounded the curve. Thereafter, Sedlacko observed the cycle veer to the right, hit a curb, and then go airborne. He did not observe a police cruiser in pursuit of the motorcycle. Sedlacko recalled that a police cruiser arrived approximately 30 to 40 seconds after the crash. Any other pertinent facts will be contained in our discussion of appellants' assignments of error. I II Appellants' assignments of error will be addressed together. In their first assignment of error, appellants argue the trial court abused its discretion by granting summary judgment in favor of the City as a material issue of fact remains as to whether Officer Smith was the proximate cause of David M. Vince's death. In their second assignment of error, appellants contend the trial court abused its discretion by granting summary judgment because a material issue of fact exists as to whether the City is protected under the doctrine of sovereign immunity. Summary judgment motions are to be resolved in light of the dictates of Civ. R. 56 (C). Civ. R. 56 (C) states, in pertinent 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 . . . 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 appellants' assignments of error Under R.C. 2744.02(A)(1), the City enjoys a general immunity from civil liability: * * * Except 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 persons 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. However, the City may be held liable under R.C. 2744.02(B)(1) for the negligence of one of its employees in the operation of a motor vehicle within the scope of the employee's employment and authority. Notwithstanding the foregoing, the City is not liable under R.C. 2744.02(B)(1) if the alleged negligence occurred when one of its police officers was "operating a motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute wilful or wanton misconduct." R.C.2744.02(B)(1)(a). In its July 31, 1997 Judgment Entry, the trial court found appellants could not assert a successful claim for negligent operation of a motor vehicle because they were unable to prove Officer Smith proximately caused the decedent's death. The trial court further found, assuming arguendo, appellants could establish proximate cause, the City was protected from liability under the doctrine of sovereign immunity. Specifically, the trial court concluded Officer Smith was responding to an emergency call and the officer's pursuit of the decedent did not constitute wilful and wanton misconduct. "Emergency call" is defined in R.C. 2744.01(A) as "a call to duty, including, but not limited to, communications from citizens, police dispatches, and personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace officer." In their Brief in Opposition to Defendant's Motion for Summary Judgment and their Brief to this Court, appellants argue an emergency call must be limited to a situation which is "inherently dangerous". In rejecting appellant's argument, the trial court cited Moore v. Columbus (1994), 98 Ohio App.3d 701. In Moore, the Franklin County Court of Appeals held "[t]here is no requirement in the statute which would limit an `emergency call' only to those occasions where there is an inherently dangerous situation or when human life is at danger." Id. at 706. The Moore Court, in addressing this same argument, stated: Appellants are asking this court to define "emergency call" in such a way as to restrict it solely to "inherently dangerous situations," and to further define it as a situation where human life is threatened. However, appellants' interpretation of the statute serves to restrict the rather open-ended definition of "emergency call" as provided by the legislature. By focusing on the language "inherently dangerous situations" appellants have completely failed to comprehend that R.C. 2744.01(A) defines "emergency call" as "a call to duty including, but not limited to * * * police dispatches * * * of inherently dangerous situations that demand an immediate response on the part of a peace officer." As such, R.C. 2744.01(A) provides but one definition of an "emergency call" and that definition is the most obvious definition of what would constitute an "emergency call." Id. We agree with the Moore court and find that an "emergency call" is not limited to an "inherently dangerous situation". However, that does not mean that we find all actions by a law enforcement officials to be "emergency calls". There are times when a police officer may be acting in the course of his or her duties and is not an on "emergency call". An officer may be required to act with immediacy even when a situation is not "inherently dangerous". As an example, a police officer may be driving from the scene of an accident to file an accident report. Under this situation, there is no need to drive in excess of the posted speed limit. However, when a police officer is in the process of effectuating a stop or an arrest, whether it be for a traffic violation, misdemeanor criminal offense or felony criminal offense, to require an "inherently dangerous situation" to exist before sovereign immunity applies, for negligent acts, places an unnecessary chilling effect upon law enforcement's performance of its duties owed to the public. Further, even if we are incorrect in our interpretation of R.C. 2744.01(A), not to require an "inherently dangerous situation" to exist before immunity will attach, for a negligent act, by a police officer, we still find Appellee City of Canton is not potentially liable in this case. In the case sub judice, under any reasonable interpretation of the facts, we find the police officer was responding to an "inherently dangerous situation" and therefore on an "emergency call" and immunity attached to the police officer and his actions pursuant to that "emergency call", even if his actions were negligent. Even under the summary judgment standard, appellants are unable to set forth facts upon which reasonable minds could differ as to whether "an inherently dangerous situation" existed. The decedent was traveling at an excessive and dangerous rate of speed and in a reckless manner. The record supports this conclusion. Further, the police officer pursued the decedent, on three separate occasions, in one evening, for the same dangerous driving. At no time, on any of the three occasions, did the decedent indicate that he intended to terminate the chase by stopping his motorcycle. There is testimony that, at least once that evening, decedent did a "wheelie", that is, he drove the motorcycle, on the rear wheel, with the front wheel raised off the pavement, thereby leaving no steering mechanism to control the motorcycle. At any time, such conduct could have resulted in serious injury to other motorists or pedestrians. Failure, on the part of a police officer, to pursue an individual acting in such a manner could constitute neglect of a police officer's sworn duties to protect the public. A police officer owes a general duty of protection to the public. Sawicki v. Village of Ottawa Hills (1988), 37 Ohio St.3d 222,230. Further, the General Assembly, in R.C. 4511.24, relieved emergency vehicles from speed limitations when responding to an emergency call but specifically provided: * * * This section does not relieve the driver of an emergency vehicle or public safety vehicle from the duty to drive with due regard for the safety of all persons using the street or highway. There is no evidence that, at the time of the accident, there was any physical contact between the decedent and the police officer nor even a physical proximity between the two vehicles. There is also no evidence that the police officer, during the chase, attempted to cut-off the decedent. The testimony merely establishes that the police officer actively pursued the decedent, in the course of his duties, to protect the safety of motorists and pedestrians. Based upon these facts, we find the police officer complied with his statutory duty as contained in R.C.4511.24, while responding to an emergency call. In addition to finding that reasonable minds cannot differ as to whether an "inherently dangerous condition" existed, we further find that appellants' claims cannot survive summary judgment on the issue of proximate cause. Under no reasonable interpretation of the facts can the police officer be found to have been the proximate cause of the accident that took the decedent's life. In considering all the testimony, from the affidavits, in the light most favorable to appellants, at best, this testimony establishes that the police officer pursued the decedent, at a high rate of speed, and the decedent fled the scene and refused to stop even though he knew the police officer was in pursuit of him. At the time of the accident, the police officer was thirty seconds behind the decedent, which translates into a significant distance behind the decedent. At only twenty-five miles per hour, the police officer was at least 1,100 feet behind the decedent and if traveling at fifty miles per hour, the police officer was in excess of 2,200 feet behind the decedent. These facts clearly establish that the police officer, although in pursuit of the decedent, was at such a distance that he did not proximately cause the decedent to crash his motorcycle. Pertaining to the issue of duty, we find the decedent breached his legal duty to obey the traffic laws of the State of Ohio and the lawful directions of a police officer to stop his motorcycle. It is a criminal offense, under R.C. 2921.331 for a person to fail to comply with the order or signal of a police officer. R.C. 2921.331(B) specifically provides: (B) No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring his motor vehicle to a stop. The decedent had a duty to exercise ordinary care for his own safety. Stone v. Ohio State Hwy. Patrol (Mar. 16, 1993),63 Ohio Misc.2d 351, 357, citing Sovich v. Ohio Dept.of Liquor Control (July 9, 1992), Court of Claims No. 91-06716, unreported. Certainly, decedent's breach of this duty was the more direct and proximate cause of his death as opposed to the police officer's pursuit of him. Appellants further assert that even if there was an "inherently dangerous situation" resulting in immunity from negligent conduct to Appellee City of Canton, in this case, pursuant to R.C. 2744.02(B)(1), there would still be an existing cause of action for wanton and wilful conduct. We disagree. Whether conduct is wilful or wanton is generally a question of fact. See, Fabry v. McDonald Police Dept. (1994), 70 Ohio St.3d 351,356; Peoples v. Wiloughby (1990), 70 Ohio App.3d 848,850; Reynolds v. Oakwood (1987), 38 Ohio App.3d 125, 127. "The term `willful and wanton misconduct' connotes behavior demonstrating a deliberate or reckless disregard for the safety of others." Moore at 708. "Wanton misconduct" comprehends an entire absence of all care for the safety of others and an indifference to consequences. * * * It implies a failure to exercise any care towards those to whom a duty of care is owing when the probability that harm will result from such failure is great, and such probability is known to the actor. It is not necessary that an injury be intended or that there be any ill will on the part of the actor toward the person injured as a result of such conduct. * * * Wanton misconduct is positive in nature while mere negligence is naturally negative in character. * * * "Wilful misconduct" is something more than negligence. "Wilful misconduct" imports a more positive mental condition prompting an act than does the term "wanton misconduct." "Wilful misconduct" implies an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposely doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury. * * * The word "wilful," used in the phrase, "wilful misconduct," implies intent, but the intention relates to the misconduct and not merely to the fact that some specific act, such as operating an automobile, was intentionally done. * * * The intention relates to the commission of wrongful conduct, independent of the intent to use certain means with which to carry out such conduct. In order that one may be guilty of "wilful misconduct," an actual intention to injure needs to be shown. * * * Peoples at 851. (Citation omitted.) At oral argument, Appellee City of Canton conceded that pursuant to York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, Officer Smith was under a duty to refrain from operating his motor vehicle in a wilful and wanton manner. This duty extends not only to third persons, but also to persons being pursued by police vehicles. Although statutorily a cause of action for wanton and wilful conduct pursuant to R.C. 2744.02(B)(1) exists, appellants failed to submit evidence sufficient to survive the standard of review at the summary judgment stage. The only conduct suggested, by the evidence, in a light most favorable to appellants, is that the police officer vigorously pursued the decedent, at a high rate of speed, and continued to do so after he was instructed to cease the pursuit. There is no evidence that the police officer attempted to run the decedent off the road, followed at too close a distance causing the decedent to crash or acted in any way other than to follow the decedent. The police officer's conduct was not wilful and wanton. Further, the issue of proximate cause is even more remote than that in the analysis for a negligence cause of action as set forth above. Failure of the police officer to obey the instructions of his dispatcher to cease his pursuit may have been an issue for internal review by the police department. It in no way can be reasonably construed to be a "wilful and wanton" act as it relates to appellant's accident. Appellants' first and second assignments of error are overruled. For the foregoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed. Wise, J., Reader, J., concurs. Hoffman, P. J., dissents.

2016-07-06 06:42:03.586952+00

I respectfully and reluctantly dissent from the majority opinion. I say reluctantly because the proposition that a criminal or traffic offender can recover damages from a peace officer and/or his governmental employer for damages incurred as a result of his intentional and voluntary decision to flee lawful arrest is troubling.1 When is any high speed pursuit justified? Does it matter if the fleeing offender is a murderer? Despite my confessed reservations concerning the existence of a duty to the fleeing offender, I believe York v. Ohio State Hwy.Patrol (1991), Ohio St.3d 143, recognizes such a duty exists. I disagree with the majority's and the Moore Court's interpretation of the definition of "emergency call". I find appellants' interpretation of the statute correct given the placement of the phrase "including, but not limited to". The phrase "including, but not limited to" quantifies the manner in which a peace officer is called to duty, such as by communications from citizens, by police dispatches, by personal observations, or the like. It does not quantify or, in any way, modify "inherently dangerous situations." I believe in order to constitute an "emergency call", the call to duty must involve an inherently dangerous situation. Applying the majority's and the Moore court's interpretation of R.C. 2744.01(A), a peace officer who observes a littering offense committed by the driver of a passing car would be responding to an "emergency call" because the officer would be required to act with immediacy to apprehend the offender despite the fact that littering is not an "inherently dangerous" situation. I note the example listed in the majority opinion of when a police officer may be acting in the course of his or her duties and is not on an "emergency call" (a peace officer driving from the scene of an accident to file an accident report) does not require "immediacy". However, I share the majority's concern that to require an inherently dangerous situation to exist before sovereign immunity applies places an "unnecessary chilling effect" upon law enforcement's performance of its duties owed to the public. (Majority Opinion at 9). Although I agree with appellants' interpretation of "emergency call", I find reasonable minds could find, at the time of the third chase, Officer Smith was responding to an "emergency call". The City presented evidence which establishes that Officer Smith observed the decedent traveling at a high rate of speed through a residential area. I find reasonable minds could conclude such activity creates an inherently dangerous situation. In response to that observation, the officer initiated his third pursuit. A police officer's personal observation of a vehicle's speeding through a residential area may constitute an "emergency call" to which an officer must respond. See, e.g., York v. OhioState Hwy. Patrol (1991), 60 Ohio St.3d 143; Rodgers v. DeRue (1991), 75 Ohio App.3d 200. If the trier of fact concludes Officer Smith was not responding to an emergency call, appellants need only prove ordinary negligence. However, if the trier of fact concludes Officer Smith was responding to an emergency call, appellants bear the burden of demonstrating that Officer Smith's conduct was wilful or wanton before liability can attach to appellee. Assuming, arguendo, it is established Officer Smith was responding to an emergency call, I find reasonable minds could conclude that Smith's operation of his motor vehicle constituted wilful or wanton misconduct. The undisputed evidence in the record establishes that the Can-Com supervisor called off the chase while Smith was in the vicinity of the intersection of Shorb Avenue and 18th Street. However, the evidence regarding when Smith actually terminated his pursuit, if at all, is disputed. Officer Smith, responding to an emergency call, followed the motorcycle north on Shorb Avenue. As Smith initiated a turn west onto 18th Street, he was instructed to terminate the pursuit. During his deposition, Smith testified he complied with those instructions just west of the intersection. The officer further testified his emergency lights and siren were activated at all times during the chase. However, in their affidavits, the Browns stated they observed a police car following a motorcycle at a high rate of speed further west on 18th Street, closer to Fulton Road. According to the Browns, the officer was not only traveling at a high rate of speed, but also did not have his lights and siren activated. Reasonable minds could differ in their conclusions of whether Smith's continued pursuit of the motorcyclist at a high rate of speed through a residential area after he had been called off constituted a deliberate or reckless disregard for the safety of the decedent. Therefore, I conclude that summary judgment was not appropriate as to this issue even if it was undisputed Officer Smith was responding to an emergency call. Accordingly, I find the trial court erred in granting the City's Motion for Summary Judgment. Assuming the decedent's conduct of speeding through a residential area contributed to his death, if the jury concludes Officer Smith acted in a wilful and wanton manner, the jury could also find that Smith's actions were a proximate cause, though concededly not the sole proximate cause, of the decedent's demise. The majority's time/distance analysis is one best left to the jury. Any issues of contributory negligence and/or assumption of the risk are likewise more appropriate for a jury to determine. For the foregoing reasons, I would sustain appellant's assignments of error, reverse the judgment of the trial court and remand the case to that court for further proceedings. ___________________________ JUDGE WILLIAM B. HOFFMAN 1 I hasten to note I have no reservation as to the existence of a duty to innocent third parties during high speed chases.

2016-07-06 06:42:04.214674+00

OPINION Appellant Joan G. Houger appeals a judgment of the Canton Municipal Court overruling her motion for reimbursement of costs associated with her conviction for disorderly conduct: ASSIGNMENTS OF ERROR ASSIGNMENT OF ERROR NO. 1 HAVING BEEN ORDERED TO RE-SENTENCE THE DEFENDANT FOR A MINOR MISDEMEANOR, THE TRIAL COURT ERRED WHEN IT CREDITED THE $100.00 FINE THAT SHE HAD PAID TO THE CANTON MUNICIPAL COURT CLERK ON FEBRUARY 8, 2000, BUT DENIED HER POST REMAND MOTION FOR REIMBURSEMENT OF ALL MONIES SHE HAD PAID IN EXCESS OF SUCH FINE, TO AVOID SERVING A 10 DAY JAIL SENTENCE FOR A MINOR MISDEMEANOR. THE MONIES SHE PAID FOR HER CONTINUED FREEDOM INCLUDED: (1) JURY COSTS; (2) COSTS ADVANCED FOR TRIAL TRANSCRIPT; (3) THE COSTS TO COMPLY WITH THE COURT'S ELECTRONICALLY MONITORED HOUSE ARREST ORDER; AND (4) THE VALUE OF HER SERVICES EXPENDED IN PERFORMING THE 50 HOURS OF COMMUNITY SERVICE. ASSIGNMENT OF ERROR NO. 2 THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT WHERE IT FINED THE DEFENDANT $100.00 FOR A MINOR MISDEMEANOR, BUT DENIED REIMBURSEMENT OF COSTS JUDICIALLY IMPOSED AS AN ADDITIONAL SANCTION THAT RENDERED THE FINE EXCESSIVE AS WELL AS UNCONSTITUTIONAL IN VIOLATION OF ARTICLE 1, SECTION 9 OF THE OHIO CONSTITUTION. Following an incident at the Bureau of Motor Vehicles, appellant was charged with disorderly conduct in violation of Canton City Ordinance 509.03, a misdemeanor of the fourth degree. The case proceeded to jury trial in the Canton Municipal Court. Following trial, she was found guilty of disorderly conduct. The court convicted appellant of disorderly conduct as a misdemeanor of the fourth degree, and sentenced her to thirty days incarceration, with all but ten days suspended on condition of good behavior for two years. In lieu of ten days incarceration, appellant was permitted to serve thirty days of electronically monitored house arrest, and perform 50 hours of community service. She was fined $100. Appellant appealed to this court. We found that the court erred in sentencing her for a misdemeanor of the fourth degree rather than a minor misdemeanor, as the court failed to instruct the jury on the element of persistence, needed to elevate the crime to a misdemeanor of the fourth degree. Further, the verdict did not state the degree of the offense, nor did it include the aggravating circumstance of persistence necessary to elevate the degree of the offense. State v. Houger (August 21, 2000), Stark App. No. 2000CA00055, unreported. However, we affirmed the conviction, and remanded for sentencing for a minor misdemeanor. On September 13, 2000, the court sentenced appellant for a minor misdemeanor, fining her $100 and ordering her to pay costs. He gave her credit for the $100 she had already paid as a fine for a misdemeanor of the fourth degree. On September 20, appellant filed a motion for reimbursement, seeking reimbursement for $1049.50 in costs, and $2500 in attorney fees. On October 3, the court overruled the motion for reimbursement. Appellant filed a notice of appeal to this court on October 12. I Appellant argues that the court erred in failing to give her credit for payment of jury costs, costs of a transcript for her first appeal, costs associated with the sentence for electronic house arrest, and the value of services performed as community service under her original sentence. Appellant cites no authority for the proposition that a reversal for re-sentencing on a lower charge requires a refund of all costs paid. Clearly, the court could properly order appellant to pay the jury costs, transcript costs, and other court costs associated with the underlying action, as her conviction was not reversed. As to costs associated with house arrest and performance of community service, appellant's remedy was to seek a stay of the sentence pending appeal. In fact, appellant did so, and the sentence was stayed on March 3, 2000. Appellant was not entitled to a refund of any costs incurred before she sought a stay of the underlying sentence. The first assignment of error is overruled. II Appellant argues that her fine is constitutionally excessive for a minor misdemeanor, as in addition to the $100 fine, she paid costs, as outlined in Assignment of Error I. This assignment is without merit. Pursuant to R.C. 2929.21, appellant may be fined $100 for a minor misdemeanor. On remand, the court ordered appellant to pay $100, and gave her credit for the $100 previously paid as a fine. Finally, the court vacated any remaining hours of community service and days of house arrest. The second assignment of error is overruled. The judgment of the Canton Municipal Court is affirmed. Costs to appellant. JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the judgment of the Canton Municipal Court is affirmed. Costs to appellant. ______________________________ By Gwin, P.J., Hoffman, J., and Farmer, J., concur.

2016-07-06 06:42:04.431779+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: Redell Windley has appealed an order of the Summit County Court of Common Pleas which granted summary judgment in favor of United Disability Services, Inc. ("United"). This Court dismisses the appeal for want of jurisdiction. I Windley was injured when he slipped and fell in United's parking lot. He filed a two-count complaint against United, asserting that United was liable for failing to properly maintain and supervise its parking lot, and that United's act or omission was intentional.1 United responded, and moved for summary judgment. Windley requested and was granted an extension of time in which to file a motion in opposition, but never responded. The trial court granted summary judgment in favor of United on both counts of Windley's complaint on February 6, 2001. Windley filed a motion for reconsideration in the trial court on February 27, 2001. United opposed the motion. On March 7, 2001, Windley filed a notice of appeal in this Court; case number 20484 was assigned to the appeal. On March 16, 2001, the trial court struck Windley's motion for reconsideration as a nullity. Windley filed a motion in the trial court to convert his motion for reconsideration into a motion to vacate the trial court's February 6, 2001 order. This Court, on March 13, 2001, ordered Windley to file a memorandum, with any necessary supporting materials, demonstrating that the trial court's February 6, 2001 journal entry is a final appealable order. This Court's March 13, 2001 order provided: "If [Windley] fails to respond, [the] appeal shall be dismissed." Windley failed to respond, and this Court dismissed the appeal for Windley's non-compliance with our order. On May 2, 2001, the trial court issued an order stating: "It is hereby the order of this Court that [United's] Motion for Summary Judgment is granted as to each of [Windley's] causes of action. Accordingly, having dismissed all of [Windley's] claims, this constitutes a Final Appealable Order."2 On June 1, 2001, Windley filed a notice of appeal from the May 2, 2001 journal entry. II Pursuant to App.R. 4(A), Windley was required to file his notice of appeal "within thirty days of entry of the judgment or order appealed * * *." Final judgment was entered in this matter on February 6, 2001, when the court granted summary judgment in favor of United on both counts of Windley's complaint. There were no other parties to the action, and no other claims pending. Therefore, Windley was required to file his notice of appeal on or before March 8, 2001. He did file a notice of appeal on March 7, 2001, and case number 20484 was assigned to the appeal. However, the appeal was dismissed on April 10, 2001, for Windley's failure to comply with this Court's March 13, 2001 order. The trial court's May 2, 2001 journal entry did not revive the time in which Windley had to file his notice of appeal. The notice of appeal in the present case was filed on June 1, 2001, eighty-five days beyond the App.R. 4(A) deadline. Because Windley's notice is untimely, this Court does not have jurisdiction to hear the appeal. III Based upon the foregoing, this appeal is dismissed. 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, 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. Exceptions. SLABY, P.J., CARR, J. CONCUR. 1 United filed a third-party complaint against Dave Anderson and Anderson's Snow Plow Service, but voluntarily dismissed the complaint on May 25, 2000. 2 We note that the trial court is without authority to determine this Court's jurisdiction.

2016-07-06 06:42:04.106797+00

OPINION {¶ 1} On September 21, 2005, appellee, Tuscarawas County Job and Family Services, filed a complaint for permanent custody of Jaylynn Bodenheimer born January 8, 2001, Jocelyn Berry born November 2, 2002 and Karly Bunton born August 12, 2004. An amended complaint was filed on September 26, 2005, alleging the children to be neglected and dependent. Mother of the children is Angie Berry; father of Jaylynn and Jocelyn is Jason Bodenheimer and father of Karly is appellant, Chris Bunton. {¶ 2} On September 30, 2005, Mr. Bodenheimer's parents, Anthony and Tami Angelo, filed a motion for temporary and legal custody of the children. {¶ 3} By judgment entry filed October 25, 2005, the trial court found the children to be neglected and dependent. {¶ 4} On November 10, 2005, Ms. Berry's father and stepmother, James and Debbie Berry, filed a motion to intervene, seeking legal custody of the children. {¶ 5} Dispositional hearings were held on November 15, and December 9, 2005. By judgment entry filed December 15, 2005, the trial court granted permanent custody of the children to appellee. {¶ 6} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I {¶ 7} "THE TRIAL COURT IMPROPERLY AWARDED PERMANENT CUSTODY BECAUSE TUSCARAWAS COUNTY JOB AND FAMILY SERVICES FAILED TO MAKE REASONABLE EFFORTS TO REUNIFY APPELLANT-FATHER WITH HIS CHILD." II {¶ 8} "THERE WAS NOT CLEAR AND CONVINCING EVIDENCE FOR THE TRIAL COURT TO FIND THAT THE CHILD COULD NOT BE PLACED WITH THE APPELLANT IN A REASONABLE TIME OR SHOULD NOT BE PLACED WITH THE APPELLANT." I, II {¶ 9} Appellant claims the trial court erred in granting permanent custody of the child to appellee. Specifically, appellant claims appellee failed to make reasonable efforts to reunite he and his child, and appellee failed to prove the child could not be placed with him within a reasonable time. We disagree. {¶ 10} As an appellate court, we neither weigh the evidence nor judge the credibility of the witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment.Cross Truck v. Jeffries (February 10, 1982), Stark App. No. CA-5758. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction (1978),54 Ohio St.2d 279. {¶ 11} R.C. 2151.414(E) sets out the factors relevant to determining permanent custody. Said section states in pertinent part as follows: {¶ 12} "(E) In determining at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code that one or more of the following exist as to each of the child's parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent: {¶ 13} "(1) Following the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties. {¶ 14} "(13) The parent is repeatedly incarcerated, and the repeated incarceration prevents the parent from providing care for the child. {¶ 15} "(16) Any other factor the court considers relevant." {¶ 16} R.C. 2151.414(B) enables the court to grant permanent custody if the court determines by clear and convincing evidence that it is in the best interest of the child. R.C. 2151.414(D) sets out the factors relevant to determining the best interest of the child. Said section states relevant factors include, but are not limited to, the following: {¶ 17} "(1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; {¶ 18} "(2) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child; {¶ 19} "(3) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999; {¶ 20} "(4) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; {¶ 21} "(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child." {¶ 22} Appellant argues it was error not to establish a case plan for him. It must be noted this is the first time appellant's child has been the subject of a permanent custody complaint. The child's mother, Ms. Berry, has had three other permanent custody complaints filed against her regarding other children, and appellant had been minimally involved in her last case plan. T. at 187. The incident that precipitated the complaint sub judice was a direct result of appellant, unauthorized, taking his child and her two siblings to a party. T. at 9-11, 36-37, 88, 92. He was found in a vehicle with them around 4:30 a.m. T. at 14, 38. {¶ 23} Appellee argues pursuant to R.C. 2151.353, it is not required to show reasonable efforts to reunify if the initial requested disposition is for permanent custody alone. We agree with appellee's position and conclude a case plan for appellant was not necessary because appellee moved for permanent custody in the initial complaint. However, appellee is still required to establish that permanent custody is in the best interest of the child and the child cannot be placed with appellant within a reasonable time because of at least one of the factors set forth in R.C. 2151.414(E). {¶ 24} Specifically, we find R.C. 2151.414(E)(13) and (16) to apply sub judice. Both appellant and Ms. Berry admitted they were unable to care and provide for the child at this time. T. at 145, 189. Appellant has been in jail most of his adult life and at twenty-three years of age, the longest period of time he has gone without being incarcerated is one year. T. at 184. Appellant has three felony convictions, and at the time of the hearing, was in a correctional institution with a summer 2006 release date. T. at 204. One of his incarcerations was as a result of a domestic violence conviction involving Ms. Berry. T. at 183. Appellant admitted he has done nothing to change his behavioral patterns. T. at 209. Appellant has a history of alcohol and drug abuse, and refused to take a court ordered drug test. T. at 98-99, 100, 185-186, 203, 211. {¶ 25} Throughout his testimony, appellant requested that either his mother or Ms. Berry's father and stepmother be given custody as an easy out for access to the child. T. at 189, 193, 205. {¶ 26} Against this background, the trial court had the unqualified opinion of the caseworker, Sandy Wood, who opined the children needed to "reside in a stable safe environment." T. at 232. The two older children had already been through grandparent placement which had been terminated unsuccessfully. The children are now doing very well in their current foster home and the foster parents wish to adopt them. T. at 233-234, 238-239. {¶ 27} Based upon appellant's criminal history and apparent chosen behavioral patterns, his indifference to driving children around at 4:30 a.m. after he had "partied" and his inability to make any changes, including refusing to cooperate with a court ordered drug test, we find the trial court did not err in awarding appellee permanent custody of the child. The best interest of the child was served by granting permanent custody to appellee. {¶ 28} Assignments of Error I and II are denied. {¶ 29} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio, Juvenile Division is hereby affirmed. By Farmer, P.J. Edwards, J. and Boggins, J. concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Tuscarawas County, Ohio, Juvenile Division is affirmed.

2016-07-06 06:42:04.144807+00

DECISION AND JUDGMENT ENTRY Emma Pinkerman appeals from a jury verdict entered in the Lawrence County Court of Common Pleas in favor of Dr. Patrio D. Tismo, P.A., Inc., upon her complaint alleging medical malpractice. Pinkerman asserts that the jury's verdict in favor of Dr. Tismo is against the manifest weight of the evidence and that the trial court erred in failing to either grant judgment notwithstanding the verdict or a new trial. We disagree because the record contains some competent, credible evidence supporting the judgment and the evidence is legally sufficient to support the judgment. Accordingly, we affirm the judgment of the trial court. I. Dr. Tismo, a general surgeon, performed laparoscopic gall bladder surgery upon Pinkerman. Several days after the surgery, Pinkerman became jaundiced. Dr. Tismo re-admitted Pinkerman to the hospital for testing. After ten days, Dr. Albert Campbell performed an exploratory surgery upon Pinkerman. Dr. Campbell discovered that a surgical staple placed by Dr. Tismo was blocking Pinkerman's common bile duct. Dr. Campbell removed the staple, and Pinkerman recovered. Pinkerman sued Dr. Tismo, alleging that he committed medical malpractice when he placed the surgical staple. Pinkerman claimed that she endured the second surgery and nearly one month of hospitalization as a result of Dr. Tismo's negligence. Additionally, Pinkerman's husband, Albert Pinkerman, sued Dr. Tismo for loss of consortium. At trial, the jury heard the testimony of several doctors. One of the doctors, Dr. John Dorsky, testified as follows: Q. After reviewing the medical records, did Dr. Tismo, in performing his gall bladder surgery, the laparoscopic surgery, fall below the accepted standards of care? In other words, did he commit medial malpractice in your mind? A. No. Q. * * * In your opinion, did Dr. Tismo act as a surgeon of ordinary skill, care and diligence under like or similar circumstances? A. Yes. Pinkerman did not object to Dr. Dorsky's testimony. The jury returned a verdict in favor of Dr. Tismo. Pinkerman filed a motion seeking a new trial or, in the alternative, judgment notwithstanding the verdict. The trial court denied Pinkerman's motion and entered judgment in favor of Dr. Tismo. Pinkerman timely filed a notice of appeal. She asserts the following assignments of error: I. The finding of the jury in the defendant's favor was against the manifest weight of the evidence. II. In a medical negligence claim where the plaintiff has presented reliable evidence of negligence by the medical provider and when the defendant has not presented any reliable evidence to the contrary, it is error for the jury to render verdict in favor of the medical provider. III. The trial court erred in failing to grant plaintiff's motion for new trial or in the alternative the motion for judgment notwithstanding the verdict. II. In her first assignment of error, Pinkerman asserts that the jury verdict is against the manifest weight of the evidence. In her third assignment of error, Pinkerman asserts in part that the trial court erred by denying her motion for a new trial on the ground that the judgment was not sustained by the weight of the evidence. See Civ.R. 59(A)(6). A reviewing court will not reverse a judgment as being against the manifest weight of the evidence when the judgment is supported by some competent, credible evidence going to all the essential elements of the case. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, syllabus. When conducting its review, an appellate court must make every reasonable presumption in favor of the jury's findings of fact. Myers v.Garson (1993), 66 Ohio St.3d 610, 614; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. In this case, Dr. Tismo presented some competent, credible evidence that he was not negligent in his treatment of Pinkerman. Specifically, Dr. Dorsky testified that Dr. Tismo exercised ordinary skill, care and diligence in treating Pinkerman. Pinkerman suggests in her brief that most of Dr. Dorsky's testimony does not meet the standards for admissibility of an expert opinion, and thus that the testimony does not constitute competent, credible evidence. However, Pinkerman did not object to the admissibility of Dr. Dorsky's testimony at trial, and therefore she waived any error on appeal. Stores Realty v. Cleveland (1975), 41 Ohio St.2d 41, 43; Lippy v.Society Natl. Bank (1993), 88 Ohio App.3d 33. Because Dr. Dorsky's testimony constitutes some competent, credible evidence that Dr. Tismo did not commit malpractice, we find that the jury's determination is not contrary to the manifest weight of the evidence. Accordingly, we overrule Pinkerman's first assignment of error and that portion of her third assignment of error regarding the weight of the evidence. III. In her second assignment of error, Pinkerman challenges the legal sufficiency of the evidence. In her third assignment of error, Pinkerman asserts in part that the trial court erred by denying her motion for a new trial on the grounds that the judgment is contrary to law or, in the alternative, for judgment notwithstanding the verdict. A motion for a Civ.R. 50(B) judgment notwithstanding the verdict tests the legal sufficiency of the evidence. Ruta v. Breckenridge-Remy Co. (1982),69 Ohio St.2d 66, 68-69. When reviewing a trial court's disposition of a Civ.R. 50(B) motion for judgment notwithstanding the verdict, we apply the same test we apply in reviewing a directed verdict. Pariseau v. Wedge Products, Inc. (1988),36 Ohio St.3d 124, 127; Howell v. Dayton Power Light Co. (1995),102 Ohio App.3d 6, 13. The evidence admitted at trial must be construed most strongly in favor of the non-moving party, and, where there is evidence to support the non-moving party's position, the motion must be denied. Pariseau at 127. Although a motion for judgment notwithstanding the verdict requires a trial court to review and consider the evidence, the motion does not present a question of fact or raise factual issues. Ruta at paragraph one of the syllabus. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination. Pariseau at 127. The motion therefore presents a question of law, and this court conducts a denovo review of the lower court's judgment. Howell at 13. Likewise, when the determination of whether to grant a new trial is a question of law, then the order will be reversed on appeal only upon a showing that decision was erroneous as a matter of law. Rohde v. Farmer (1970),23 Ohio St.2d 82, paragraph two of the syllabus. Pinkerman argues that she presented evidence establishing that Dr. Tismo was negligent, and that Dr. Tismo failed to present reliable evidence to the contrary. Pinkerman reasons, therefore, that Dr. Tismo did not present sufficient evidence to defend himself, and thus that the jury verdict is against the legal sufficiency of the evidence and contrary to law. However, Pinkerman again fails to consider Dr. Dorsky's testimony. When we consider the evidence admitted at trial, which includes Dr. Dorsky's testimony, in Dr. Tismo's favor, we find that the record contains evidence supporting Dr. Tismo's position. Specifically, the record contains evidence that Dr. Tismo acted as a surgeon of ordinary skill, care and diligence in treating Pinkerman. Therefore, the jury's verdict is not against the legal sufficiency of the evidence or contrary to law. Because the jury's verdict is not against the manifest weight of the evidence or contrary to law, the trial court did not err in refusing to grant Pinkerman's motion for a new trial or, in the alternative, for judgment notwithstanding the verdict. Accordingly, we overrule Pinkerman's second assignment of error and those portions of her third assignment of error regarding the legal sufficiency of the evidence supporting the verdict. In sum, we find no error on the part of the trial court. Accordingly, we overrule each of Pinkerman's assignments of error and affirm the judgment of the trial court. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that Appellees recover of Appellants 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 Lawrence County Court of Common Pleas to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions. Abele, J. and Harsha, J.: Concur in Judgment and Opinion. For the Court ________________________________ Roger L. Kline, Presiding Judge

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OPINION {¶ 1} Appellant, Denise Weisbarth ("Weisbarth"), timely appeals an entry of summary judgment by the Geauga County Common Pleas Court in favor of appellee, Geauga Park District. For the reason stated herein, we affirm the trial court's decision. {¶ 2} Weisbarth was employed as a park ranger for the Geauga Park District ("GPD"). In 2001, Weisbarth was assigned as a canine officer. As a canine officer, she worked with a police dog named Sammy who was duly appointed by the GPD on April 10, 2001. In September 2004, Weisbarth was terminated by GPD as a park ranger. In that same month, she filed a complaint in the Geauga County Common Pleas Court, asserting a statutory right to purchase Sammy. Her complaint was styled as a complaint in replevin and/or pursuant to a statutory right of action.1 According to Weisbarth's complaint, the canine unit of GPD was being disbanded and Weisbarth claimed a statutory right to purchase the dog for one dollar. {¶ 3} GPD filed an answer to the original complaint and an amended answer to the amended complaint. {¶ 4} On August 11, 2005, GPD filed a Civ.R.60(B) motion for summary judgment. On August 25, 2005, the trial court ordered Weisbarth would have thirty days to respond to GPD's motion. On November 10, 2005, with no responsive pleading submitted by Weisbarth, the trial court entered an order granting GPD's motion for summary judgment. {¶ 5} On November 18, 2005, Weisbarth filed a motion to vacate the entry of summary judgment and a motion to accept instanter her brief in opposition to GPD's motion for summary judgment. Weisbarth filed a notice of appeal from the trial court's entry of summary judgment to this court on December 5, 2006, thereby relieving the trial court of jurisdiction. Nevertheless, on December 8, 2005, the trial court granted Weisbarth's motion to vacate its November 10, 2005 summary judgment award to GPD. {¶ 6} "[W]hen an appeal is pending before a court of appeals, the trial court is divested of jurisdiction except to take action in aid of the appeal." Daloia v. Franciscan Health Sys. of Cent. Ohio, Inc. (1997), 79 Ohio St.3d 98, 101 fn. 5. The trial court may only exercise that jurisdiction which is "not inconsistent with the reviewing court's jurisdiction to reverse, modify, or affirm the judgment." Howard v.Catholic Social Serv. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141,146. With regard to a motion for relief from judgment of an otherwise appealable order, "an appeal divests the trial court of jurisdiction to consider the motion, and that `[j]urisdiction may be conferred on the trial court only through an order by the reviewing court remanding the matter for consideration of the * * * motion.'" Daloia, supracitingHoward, supra, at 147. Accordingly, the trial court's order of December 8, 2005, vacating its prior entry of summary judgment, is void. {¶ 7} Weisbarth raises two assignments of error, the first of which is as follows: {¶ 8} "The trial court erred in granting defendant summary judgment." {¶ 9} We review a grant of summary judgment pursuant to a de novo standard. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Summary judgment is appropriate only when: "* * * (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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made." Mootispaw v. Eckstein, 76 Ohio St.3d 383,385, 1996-Ohio-389. {¶ 10} The moving party to a Civ.R. 56 motion bears the initial burden of providing the court with a basis for the motion and identifying evidence within the record which demonstrate the absence of an issue of fact on a material element of the nonmoving party's claim. Dresher v.Burt, 75 Ohio St.3d 280, *296, 1996-Ohio-107. If the moving party satisfies its burden, the nonmoving party has the reciprocal burden of providing evidence to demonstrate an issue of material fact. If the nonmoving party fails to satisfy his or her burden, then summary judgment is appropriate. Civ.R. 56(E). {¶ 11} GPD claimed that it was entitled to summary judgment because Weisbarth had no statutory right to purchase Sammy. The theory of Weisbarth's complaint stemmed from R.C. 9.62. GPD claimed R.C. 9.62 was not applicable. {¶ 12} R.C. 9.62 provides, in pertinent part: {¶ 13} "(A) As used in this section: {¶ 14} "(1) `Police dog * * *' means a dog *** that has been trained, and may be used, to assist law enforcement officers in the performance of their official duties. {¶ 15} "(2) `Law enforcement agency' means an organization or unit made up of law enforcement officers as defined in section 2901.01 of the Revised Code. {¶ 16} "(B) Upon the disbanding of the canine * * * unit of a law enforcement agency, the agency shall give the law enforcement officer to whom a police dog * * * is assigned the first chance to purchase the animal, for one dollar. * * * {¶ 17} "* * * {¶ 18} "(D) A law enforcement officer who leaves * * * [a] canine unit of a law enforcement agency while the police dog * * * assigned to the officer is still fit for duty forfeits the right to purchase the animal under this section." {¶ 19} The basis for Weisbarth's R.C. 9.62 statutory right to purchase Sammy for one dollar is based on her belief that the canine unit was disbanded. The record does not support this assumption. According to the affidavits of Betty Cope, Robert McCullough and Dr. Mark Rzeszotarski, all of whom were on the Board of Park Commissioners from at least April 10, 2001 until February 10, 2004, the canine unit of GPD was formed on April 10, 2001.2 On that same day, Sammy was appointed as a GPD ranger. Following this simultaneous formation and appointment, there is nothing in the record to indicate that the canine unit was disbanded. {¶ 20} In fact, there is affirmative evidence in the record to the contrary. The canine unit continued to exist following Weisbarth's termination. A new handler, Ranger Kathleen M. Henning, was trained with Sammy and completed this training on May 5, 2005. It would be an oxymoron to train a new ranger with Sammy if the canine unit had been disbanded. {¶ 21} Weisbarth herself admitted that she was uncertain whether the canine unit had actually been disbanded. According to Weisbarth's affidavit, attached to GPD's motion for summary judgment, "I asked Keith McClintock if GPD intended to disband the canine unit, meaning Sammy, and McClintock answered in the affirmative." This statement by Weisbarth and even the alleged statement of McClintock taken as true, is not evidence that the canine unit had actually been disbanded. Rather, these statements indicate an intention to disband the unit. Perhaps these statements even intimate a promise of the board's intention to disband the unit. However, this would be akin to a promissory estoppel theory which has long been held inapplicable to governmental entities. Ohio St.Bd. of Pharm. v. Frantz (1990), 51 Ohio St.3d 143, 145- 146. {¶ 22} McClintock's representations of the board's intention to disband the canine unit is just that — a diagnosis of intent. This does not correspond with the actual event. After all, many ill-traveled roads are paved with good intentions. {¶ 23} McClintock's deposition testimony confirms that the intention to disband the canine unit never moved beyond the point of discussion.3 "* * * [W]e have discussed it, but there has been no action taken at this time regarding a decommissioning." McClintock further clarified that "* * * the dog was not decommissioned, that would have required an action by the Board of Park Commissioners. * * * Because they are the board that commissioned the dog." {¶ 24} Richard Sherwood, a law enforcement consultant for GPD, recommended the suspension of the canine unit to the board.4 According to Sherwood, he recommended the canine unit be "suspended temporarily due to manpower." When confronted with an e-mail during the deposition which was authored by McClintock, Sherwood stated, "To be honest, I don't remember any conversation about decommissioning the dog as any permanent thing at all. As a matter of fact, I would probably be against that personally, so I don't think that we ever discussed this as a permanent decommission." {¶ 25} The e-mail, authored by McClintock, confirms that the stages of the discussions regarding decommissioning the unit were varied and that no actual disbandment took place. According to McClintock's communication, "I spoke with David Kessler today. He stated that he called Kevin Powers [Weisbarth's legal counsel] and indicated to him that we would be decommissioning the K-9 unit. Apparently, he thought we were further along with the process and were ready to move." This communication indicates a move by the board in the direction of disbanding the canine unit, but it does not indicate any actual action to do so. In addition, a similar e-mail sent by McClintock to Tom Curtin on February 6, 2004 and marked as Exhibit S-3 of Sherwood's deposition, indicates the board may have been taking steps to decommission the unit. "If the Board decides to decommission Sammy — we will first have to have them approve a policy stating that the handler can purchase for $1." {¶ 26} These preparations for disbandment are confirmed by GPD. According to an affidavit from Tom Curtin, GPD executive director: "After the termination of Ms. Weisbarth in September 2004, Interim Chief Ranger, Richard Sherwood [a consultant], Deputy Director, Keith McClintock and myself had discussions regarding the K-9 unit, its effectiveness, and whether the unit should continue to exist. The Board of Park Commissioners decided to not suspend or dissolve the K-9 unit."5 {¶ 27} In that same affidavit, Curtin goes on to explain that another ranger was assigned as a handler of Sammy, that she and Sammy trained as a canine unit at the Ohio Peace Officer Training Commission between January and May 2005, and that she and Sammy were certified as a canine unit on May 24, 2005. {¶ 28} All of these communications and discussion indicate the board was examining its options for disbanding the unit, yet none indicate any decommissioning occurred. There may have been intentions to disband the canine unit. There may have been discussions about disbanding the unit. Apparently, there was even a recommendation to suspend the canine unit. However, the unit was never disbanded. In fact, following a brief interlude for Sammy, during which point in time he was bereft of a trainer, the unit became active again with its new handler, Ranger Henning. {¶ 29} There is no evidence in the record to support Weisbarth's claim that the canine unit was disbanded, thereby triggering her statutory right to purchase Sammy according to R.C. 9.62(B). The record does not reflect the unit was disbanded in any way — formally or informally, officially or unofficially. The record rather demonstrates that the board discussed disbanding the unit and even took steps in case it decided to disband the unit. However, based on the affidavits, evidence and deposition testimony, the unit remained active. Therefore, Weisbarth was not entitled to purchase Sammy pursuant to R.C. 9.62(B). {¶ 30} Although we are constrained to limit our review to the evidence and record as it existed prior to the notice of appeal (and thereby prior to Weisbarth's response to GPD's summary judgment), we would note that the outcome, had the trial court properly retained jurisdiction to rule on the summary judgment motion again following the motion to vacate, would likely be consistent with our review of the record before this court. The record is clear that the canine unit, by virtue of its active status with the new handler, was not disbanded. Weisbarth was terminated in September 2004. Weisbarth filed her complaint in that same month. There is no evidence in the record to support the essential element of Weisbarth's claim that the GPD canine unit had been disbanded as of that time. In November 2004, GPD hired a canine consultant to train Sammy with a new handler. This training occurred between November 2004 and May 2005. Although discussions regarding disbanding the canine unit also occurred during this time, actions were simultaneously being taken, i.e, the training, to maintain the unit. It would appear that the GPD was conducting proper due diligence in researching its options as to the viability of the canine program. In the end, as demonstrated by the training completion and certification, the canine unit remained intact with Sammy and a new handler. Although the record may suggest the unit was on a temporary hiatus from September 2004 until November 2004, this does not correspond to a status of permanent disbandment as required by R.C. 9.62(B). {¶ 31} Consequently, the first assignment of error is without merit. {¶ 32} Weisbarth's second assignment of error is as follows: {¶ 33} "The trial court erred by denying discovery of relevant, unprivileged documents." {¶ 34} In this assignment of error, Weisbarth argues that "throughout the discovery process below Weisbarth's discovery requests were repeatedly stiff-armed with claims of privilege by GPD." She claims that the assistance of the trial court was enlisted to obtain unredacted copies of relevant documents. Specifically, Weisbarth is seeking the production of documents that reflect communications between GPD's labor relations representative and GPD that bear on Weisbarth's termination, and which GPD claimed were protected by privilege. {¶ 35} However, we fail to see the relevance of an assignment of error that discusses a discovery dispute on the issue of Weisbarth's termination when that issue is not germane to this appeal. As stated previously, the termination and compensation aspects of Weisbarth's complaint as amended were adjudicated by agreement of the parties. Though Weisbarth argues that she has "the burden of proving her employment in good standing at the time the K-9 was decommissioned in order to prevail on her claim in replevin," our analysis in the first assignment of error makes no mention of her good standing at the time of decommissioning. It was not an issue because our decision whether to affirm or reverse the entry of summary judgment turned on the interpretation of R.C. 9.62, and specifically, whether the canine unit was or was not disbanded. As stated by GPD in its motion for summary judgment, this was the "sole remaining claim." All other claims for overtime pay and other compensation and alleged in her amended complaint were resolved by agreed entry during the pendency of the litigation. Thus, her good standing was not at issue. {¶ 36} The second assignment of error is without merit. {¶ 37} For the reasons stated in the Opinion of this court, the assignments of error are without merit, and it is the judgment and order of this court that the judgment of the Geauga County Court of Common Pleas is affirmed. DONALD R. FORD, P.J., concurs, WILLIAM M. O'NEILL, J., dissents with Dissenting Opinion. 1 Thereafter, Weisbarth filed an amended complaint that added claims for unpaid wages and overtime. Eventually, these two claims were resolved by agreed judgment entry during the pendency of this case. 2 These affidavits were attached as exhibits to GPD's motion for summary judgment. 3 McClintock's deposition was filed simultaneously with GPD's motion for summary judgment. In addition, portions of McClintock's deposition were attached as an exhibit in support of GPD's motion. 4 Portions of Sherwood's deposition were attached as an exhibit to GPD's motion for summary judgment. The entire deposition transcript was also filed simultaneously with GPD's motion. 5 Curtin's affidavit was attached to GPD's motion for summary judgment.

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{¶ 38} I respectfully dissent from the majority opinion, because it impermissibly weighs evidence which is, at best, questionable and conflicting. {¶ 39} A summary judgment exercise is not intended to weigh evidence.6 Nevertheless, the majority opinion has accepted as settled those parts of the record that support its position and rejected those that do not. Thus, the question of whether there are genuine issues of material fact that remain to be tried has been avoided. {¶ 40} Weisbarth's affidavit indicates that the canine unit was being disbanded in September 2004. Her information and belief were based on statements from Deputy Director McClintock, who told her that the unit was being disbanded. In his deposition testimony, however, that same deputy director contradicts Weisbarth's assertion by testifying that decommissioning of the canine unit would have required formal board action and, therefore, it never happened. Director Curtin, in his affidavit, went one step further and stated that the board votednot to decommission the unit, though no such vote appears anywhere else in the record. Thus, the GPD officials do not deny the accuracy of Weisbarth's assertion that the canine unit was being disbanded. Instead, they rely on the formality of a board vote to support their assertion that it could not have happened, even though no such vote appears in the record. {¶ 41} GPD's inclination to stand on formalities that may or may not have happened is further illustrated in the record. Specifically, the formality of creating the canine unit is notably absent from the record. Therefore, it is questionable whether the canine unit was ever created, much less disbanded. {¶ 42} The affidavits of the three park commissioners in support of the motion for summary judgment are all identical, and are all to the effect that two things happened on April 10, 2001: first, the K-9 unit was established, and secondly, Sammy was commissioned as a ranger. {¶ 43} However, an examination of the actual minutes of the park commissioners' meeting only reflects the commissioning of Sammy as a ranger. It does not reflect that a canine unit was established at that particular meeting. The resolution that was passed at that meeting states: "in accordance with Section 1545.13 of the Ohio Revised Code, [another individual] and Sammy (K-9) be appointed as police officers (Rangers) of the Geauga Park District[.]" {¶ 44} It is clear that GPD stands on formality in order to assert that the disbanding of the canine unit would require formal board action. Yet, that same formality is notably absent when it came to creating the same canine unit. The only reasonable inference from such contradictory evidence is that reasonable minds can come to more than one conclusion as to whether the canine unit was ever formed or disbanded. 6 Killilea v. Sears, Roebuck Co. (1985), 27 Ohio App.3d 163,167.

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 732 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 733 [EDITORS' NOE: THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 734 The present appeal arose on the death of Bradley J. Abbott [hereinafter Abbott] who died in the scope of his employment when the side of a deep trench in which he was working caved in and buried him. Among others, Abbott's wife sued the general contractor, David Black Contracting Services, Inc., [hereinafter Black] and the subcontractor who employed her husband, Jarrett Reclamation Services, Inc. [hereinafter Jarrett]. After five days of trial by jury, the trial court granted directed verdicts in favor of both Black and Jarrett. The history of the case is as follows. On November 21, 1991, the Village of Clarington [hereinafter Clarington] awarded a contract to Black to construct a sewer system within its village. Clarington also hired engineers William Brake [hereinafter Brake] and Valiant Roxby [hereinafter Roxby] to oversee and monitor the project. Chris Simon [hereinafter Simon] was the resident project representative on site every day on behalf of Brake and kept a daily construction report. Inspections of the site were also made by the Army Corp of Engineers. As general contractor, Black was responsible for the entire project which included installing the main sewer line to the wastewater treatment plant and installing lateral lines connecting the buildings and residences to the main line. On March 6, 1992, Black hired Jarrett to complete those parts of the project not able to be completed by Black or JR Construction Company, another subcontractor. Black informed Rick Jarrett, the owner of Jarrett, that lateral work would be involved in his subcontractor duties as well as reclamation work. When Black gave Rick Jarrett a copy of their subcontract, it attached a copy of the specifications for the project which included details of the trench work to be done by Jarrett, as well as the depths of the trenches. Black also attached a copy of safety procedures in excavation. *Page 735 Biweekly construction meetings were held between Black, the engineers and others to discuss and plan each progressing part of the project. On October 15, 1992, a construction meeting was held on the part of the project that subsequently involved Abbott's death. Rick Jarrett attended this meeting and also traveled to the site of Bob's Bar to observe the location where the work would be done. Jarrett's crew on most of the project consisted of Jerry Clark, who operated the backhoe and Abbott, the general laborer. Before this project, Rick Jarrett had never excavated a trench deeper than five feet and owned no safety equipment for digging trenches deeper than five feet. (Tr., pg. 413). Jarrett had been working on the project for a few months before the accident occurred and had already installed a number of laterals and excavated one or two trenches deeper than five feet deep without safety equipment. In March of 1992, Black installed a main line into the ground along the side of Bob's Bar and planted a six inch lateral from the main underneath the street and the asphalt parking lot ending behind Bob's Bar. Black capped the end of the lateral and refilled the trench. Black placed a location reference marker that protruded out of the ground at the main line. On the morning of October 29, 1992, the Jarrett crew was to work behind Bob's Bar to connect three structures including the bar with a lateral to the main sewer line already installed by Black. The lateral line ran behind the bar and then turned ninety degrees to run alongside it to the main sewer line toward the street. Clark and Abbott arrived early that morning and Clark began digging with the backhoe along the side of the bar to locate the main line installed by Black. Clark excavated a long trench. Abbott jumped into the ditch with a shovel to dig and precisely locate the main without breaking it as a backhoe would. Clark and Abbott then worked at the other end of the trench seeking to locate the pipes coming out of the structures for the hookup to the lateral. At about this point, Rick Jarrett arrived on the scene. Clark and Abbott had difficulty locating the outlet pipes from the buildings and Simon arrived to help the Jarrett crew locate these. Simon, Clark and Abbott went into the basement of one of the buildings to see if they could locate approximately where the lines were. (Tr., pg. 527). Conflicting testimony was presented as to whether Jack Schoolcraft, one of Black's supervisors, had stopped at the scene that morning to help locate the outlets. It was undisputed that Schoolcraft was somewhere on the project site that day and was available if help was needed. Upon finding no direction as to the location of the lines, Clark started digging behind the bar with the backhoe to find a line. After digging a trench behind the bar that was approximately thirty feet long and four feet deep, Abbott jumped into the ditch, dug around with a shovel and located the lateral tie-in. Abbott and Rick Jarrett then left while Clark continued *Page 736 digging around the corner of the bar toward the street to find the main line marked above ground by Black. Clark extended the trench to fifty feet long when Abbott, Rick Jarrett and Simon returned to have lunch. Clark finished his lunch first and again began digging to uncover the main line on the side of the bar. Most of the areas inside of this trench were deeper than five feet and the ditch was approximately twenty inches wide. No safety measures or trench boxes were placed in the trench nor was the trench sloped so that a means of egress existed. Clark piled the earth he removed from the trench immediately next to the left side of the trench. Rick Jarrett left the scene after lunch. While Clark was digging the trench, he noticed Abbott in the trench walking toward him with a shovel. Clark returned to his digging when he saw Abbott running up the ditch. Clark then saw the ditch crack and the bank of the trench cave in on Abbott. Clark jumped in to dig Abbott out and others aided in the rescue attempt. Abbott's body was eventually recovered. On October 19, 1993, Mrs. Abbott brought a lawsuit alleging intentional tort against Jarrett, and a wrongful death and survivorship action against general contractor Black, the Village of Clarington, and the engineers hired by the Village, Brake and Roxby. Jarrett, Brake and Roxby filed answers and Black filed an answer and cross-claim against Jarrett. Clarington also filed an answer and cross-claim against all of the other defendants in the complaint. Discovery began in the case. On June 24, 1994, Clarington filed a motion for summary judgment arguing that governmental immunity applied under R.C. 2744.02(A) (1) to bar the lawsuit. The trial court granted the motion. On July 18, 1994, Black filed a motion for summary judgment arguing that it had no duty as a matter of law to Abbott, as the employee of its subcontractor, because Abbott failed to show that Black actively participated in Jarrett's work. Black also argued that Abbott knew he was performing inherently dangerous work. Black attached supporting materials. On September 12, 1994, Brake and Roxby filed a joint motion for summary judgment. On September 23, 1994, Jarrett filed a motion for summary judgment arguing that Abbott failed to present evidence to prove that Jarrett committed an intentional tort. Abbott filed motions opposing the motions for summary judgment. Extensive discovery continued on the case and there were extensive tangential motions filed by all parties. On February 24, 1995, Clarington voluntarily dismissed its cross-claims against Brake and Roxby. On April 4, 1995, Abbott voluntarily dismissed Brake and Roxby with prejudice, leaving only Jarrett and Black as the remaining defendants. On May 10, 1995, Abbott filed a motion to amend its complaint to add a claim against Black for the negligent hiring and retaining of Jarrett as an *Page 737 unqualified independent contractor. On July 12, 1995, the trial court granted Abbott's motion to amend the complaint which was subsequently filed on July 13, 1995. Black answered the amended complaint and filed a cross-claim against Jarrett. Jarrett timely answered the amended complaint and the cross-claim. On September 13, 1995, the trial court granted Black's motion for leave to file a renewed motion for summary judgement based upon the new allegations in the amended complaint. Black filed his renewed motion on September 13, 1995, reiterating that a general contractor owes no duty to the employee of a subcontractor engaged in inherently dangerous work absent active participation and again cited to and attached supporting materials. Black also raised lack of a duty as to the negligent hiring claim, arguing that a general contractor owed no such duty to the employee of subcontractor engaged in inherently dangerous work. Black further asserted that it could not be aware of Jarrett's alleged incompetence at the initial hiring as Jarrett had copies of the plans and safety requirements and had worked on the site for months before a problem occurred. Black also argued that Abbott failed to show that he relied on Black to hire a competent subcontractor. On October 31, 1995, the trial court overruled Black's motion for summary judgement. On June 4, 1996, trial began in this matter, and continued on june 5-7 and 11, 1996. After Abbott's opening statement at trial, Jarrett moved for a directed verdict arguing that Abbott failed to submit evidence of the elements of an intentional tort and that Abbott erred in stating that the evidence would show that Jarrett should have known that putting a person in the ditch was substantially certain to cause harm. Jarrett also moved to dismiss Black's cross-claim against it. The trial court overruled the motion. Abbott then presented its case in full, calling twenty-one witnesses who testified and were cross-examined. After Abbott rested its case on June 12, 1996, Jarrett and Black each moved for a directed verdict. Both argued that Abbott failed to present sufficient evidence to meet the elements of intentional tort with regard to Jarrett and failed to prove that Black owed a duty to Abbott. After hearing argument, the trial court granted directed verdicts in favor of both Jarrett and Black. The trial court stated that: "This court holds that the plaintiff has not proceeded with the sufficient burden of proof as to the first and second counts of the complaint; there was no evidence to substantiate the third count, which was the negligent hiring. Therefore, the court is directing a verdict for the defendants and against the plaintiff." (Tr. 1140). The court journalized its decision on June 17, 1996. Abbott filed a timely appeal raising three assignments of error. Black filed a responsive brief that *Page 738 included a one-line contention that the trial court should have granted its renewed motion for summary judgment as it included the same evidence that the trial court used in granting the directed verdict. Black filed a notice of cross appeal. Jarrett did not file an appellate brief. Abbott's first assignment of error states: "THE TRIAL COURT ERRED IN DIRECTING A VERDICT FOR THE DEFENDANTS WHEN THERE WERE AT LEAST FOUR POSSIBLE LEGAL LIABILITY CONCLUSIONS WHICH REASONABLE MINDS (I.E. THE JURY IN ITS DISCRETION AS THE FINDER OF FACTS) COULD HAVE ACCEPTED AS SUPPORTING A VERDICT AGAINST DEFENDANT BLACK, DEFENDANT JARRETT, OR BOTH DEFENDANTS." Plaintiff correctly asserts that this Court's standard of review on a directed verdict is de novo; that is, to construe the evidence presented most strongly in favor of the nonmoving party and, after doing so, determine whether reasonable minds could conclude only against the nonmoving party. Titanium Industries v. S.E.A. Inc. (Jan. 29, 1997), Belmont Co. App. No. 94-CA-130, unreported, citing Byrley v. NationwideIns. Co. (1994), 94 Ohio App.3d 1, 18, discretionary appeal not allowed,70 Ohio St.3d 1441. Civ.R. 50(A) (4) provides: "When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue." In Wagner v. Roche Laboratories, the Ohio Supreme Court held that ". . . if there is substantial competent evidence to support the party against whom the motion [for directed verdict] is made, upon which evidence reasonable minds might reach different conclusions, the motion must be denied." (1996), 77 Ohio St.3d 116, 119, quoting Kellerman v. J.S. DurigCo. (1964), 176 O.S. 320. The Court also found that "[a] motion for directed verdict * * * does not present factual issues, but a question of law, even though in deciding such a motion, it is necessary to review and consider the evidence." Id. quoting O'Day v. Webb (1972),29 Ohio St.2d 215, 219. A court cannot weigh the evidence or evaluate the credibility of the witnesses in determining such a motion. Id. The Court described a motion for directed verdict as a test involving whether the evidence presented contains the legal sufficiency to take the case to the jury and whether the evidence presents "substantial probative value" to support the nonmoving party's claim. Roche, supra at 119-120, quotingRuta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 68-69. *Page 739 Based upon this standard, Abbott contends in the first assignment of error that reasonable minds could have reached four possible verdicts when construing the evidence in a light most favorable to Appellant. Since three of these theories involve finding that Black as general contractor possessed a duty to protect Abbott as an employee of the subcontractor Jarrett, we shall begin our analysis of this issue with the liability of Black as general contractor. Abbott asserts that sufficient evidence was presented on which a jury could have found Black liable for Abbott's death, first, because Black actively participated in the action or decision leading to Abbott's fatal injuries. Abbott also submits that sufficient evidence was presented to demonstrate that Black had notice of the dangerous conditions under which Abbott was operating and Jarrett did not. Therefore, Abbott submits that R.C. 4101.11 et seq. and the exception to the general rule discharging a general contractor's duty to the employees of a subcontractor should apply to impose a duty upon Black to Abbott. Based upon the law and a review of the record, this Court finds that Abbott has failed to present substantial probative evidence on the key element necessary to sustain his assertions: that Black actively participated in Jarrett's work on the trench. It must be kept in mind that the primary responsibility for protecting the employees of an independent contractor lies with the employer; i.e., the independent contractor. Eicher v. United States Steel Corp, (1987),32 Ohio St.3d 248, 250. In accord with this general rule, the Ohio Supreme Court set forth the following holding regarding the duty owed by one who engages an independent contractor to perform inherently dangerous work: "* * * [w]here an independent contractor undertakes to do work for another in the very doing of which there are elements of real or potential danger and one of such contractor's employees is injured as an incident to the performance of the work, no liability for such injury ordinarily attaches to the one who engaged the services of the independent contractor." Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103, 108. However, in Hirschbach v. Cincinnati Gas Elec. Co., the Court announced an exception to Wellman by holding that one who hires an independent contractor, actually participates in the subcontractor's job and fails to remove a hazard that could have been removed with ordinary care can be held liable for the death of an employee of that independent contractor. (1983), 6 Ohio St.3d 206, 208. The Ohio Supreme Court defined "active participation" to mean "that the general contractor directed theactivity which resulted in the injury and/or gave or denied permission for the critical acts that led to the employee's injury, rather thanmerely exercising a general supervisory *Page 740 role over the project." Bond v. Howard Corp. (1995), 72 Ohio St.3d 332,337 (emphasis added). In Cafferkey v. Turner Constr. Co., the Court held that a general contractor who merely supervises and does not actively participate in the subcontractor's work does not owe a duty to the employees of a subcontractor who are injured in performance of inherently dangerous work. (1986), 21 Ohio St.3d 110, 113. Courts have held that R.C. 4101.11, the "frequenter" statute, imposes a duty on a general contractor when the employee of a subcontractor suffers injuries on the job. See Cyr v. Bergstrom Paper Co. (1982),3 Ohio App.3d 299, 300-301. R.C. 4101.11 states: "Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters." This places a duty upon employers to furnish a safe place of employment for employees and "frequenters" and requires employers to furnish and use safety procedures and devices. However, where hazards are inherent and are necessarily present because of the nature of the work performed, recovery by an independent contractor against a general contractor under R.C. 4101.11 will be barred. Michaels v. Ford Motor Co. (1995), 72 Ohio St.3d 475, 478. In other words, if injury results while one is performing that work for which he was hired, the very performance of which contains elements of real or potential danger, recovery cannot usually be had. Wellman, supra at 108. Further, the Ohio Supreme Court stressed that "active participation" is the legal test for determining whether a general contractor owes a duty to the employee of a subcontractor under R.C.4101.11. Michaels, supra at 480, fn 3. The Court held that the question to ask is if the general contractor had custody or control of the injured employee, the employment, or the place of employment. Id. As in previous cases, the Court in Michaels acknowledged that overall supervision and direction is necessary in a construction project, but held that such action does not constitute active participation per se. Id. at 479. *Page 741 In the Supreme Court's most recent decision on general contractor liability to an employee of a subcontractor, the Court reviewed relevant prior decisions on the subject, including those set forth above. Sopkovichv. Ohio Edison Co. (1998), 81 Ohio St.3d 628, 636-643. The Court distinguished Hirschbach from its other decisions by noting that it involved the general contractor's actual participation in the job operation of the subcontractor, while the other cases involved a general contractor's supervisory role over the subcontractor. Id. at 639-640. The Court found that Hirschbach focused on the control that a general contractor had over the work area of the subcontractor, while the other cases concerned the control of a general contractor over the subcontractor's work activities. Sopkovich, supra at 639. Based upon a review of the record and evidence presented, Abbott has failed to provide substantial probative evidence to show that Black, as general contractor, had a duty to protect Abbott as an employee of a subcontractor. Abbott contends that Black actively participated in the excavation of the trench because it directed Jarrett's job schedule and site location, had a supervisor frequently on the site and held safety meetings and reminded workers to wear their hardhats when the Army Corp of Engineers inspected the site. Construing the record in a manner most favorable to Abbott, reasonable minds could only conclude against Abbott the issue of active participation. David Black, owner of the company, and every member of Jarrett's crew, including Rick Jarrett himself, testified that Black did not direct Jarrett's previous trenching activities nor did it direct or help excavate the October 29, 1992 trench. Everyone testified that Black did not tell Jarrett what safety or excavation equipment to use and did not tell them how or exactly where to dig the trench. (Tr., pgs. 435, 499, 502, 512, 513, 528). No substantial competent evidence was presented to the contrary. Further, while Black may have held biweekly meetings, supervised Jarrett's general activities and had a supervisor on site to assist the subcontractors and offer advice who could have stopped Jarrett's work under certain conditions, this is insufficient to establish active participation in the work itself. This only establishes the supervisory role of Black. Black did not provide direct assistance in the digging of this trench and Jarrett admittedly retained overall control and authority to make its own trenching decisions. Abbott additionally asserts that Black actively participated when it originally installed the main line near the road by excavating and refilling an area near where Abbott died. Two of Abbott's expert witnesses testified at trial that when Black first installed the main line eleven months prior to Abbott's death, it may have disturbed the soil which could have contributed to the cave-in of the nearby trench that buried Abbott. However, these experts acknowledged that the *Page 742 original excavation did not occur at the trench where Abbott was found. (Tr., pg. 900). Even construing this evidence most strongly in favor of Abbott, Abbott's own experts testified that Black's original installation of the main line was not located at the same place where the cave-in occurred. Construing all of the evidence asserted on this assignment in a light most favorable to Abbott, substantial evidence is lacking to establish anything more than a supervisory role of Black as the project's general contractor in the Jarrett excavation of the October 29, 1992 trench. Further, Black neither gave nor denied permission for the critical acts that led to Abbott's death. (Tr., pgs. 435, 499, 502, 512, 513, 528). The critical acts leading to Abbott's death were that he entered a trench deeper than five feet without a means of egress and without any safety measures or safety equipment present. Black was not informed that Abbott was in the deep trench nor did it direct Abbott into the trench. Black did not direct or control the manner or method that Jarrett used to excavate the trench or Jarrett's surrounding work environment. Black did not deny permission for Abbott and Jarrett to use safety procedures and/or safety equipment to eliminate the hazard of deep trenching. Jarrett did not request such items, (Tr., pg. 513), and retained complete control over this aspect. Thus, Black did not actively participate in Jarrett's work. Additionally, due to the inherent danger of working in or near a deep trench on a construction site, it is reasonable to presume that Abbott and/or Rick Jarrett had an appreciation of the dangerous conditions in which they were operating. While Rick Jarrett testified that he lacked experience in deep trenching and did not know the exact safety measures and equipment required in excavating a trench more than five feet deep, he knew or should have known that at least a potential danger existed in working in or near a deep trench. The Ohio Supreme Court has held that a subcontractor who works at a construction site is engaged in inherently dangerous work. Michaels, supra at 478, citing Cafferkey, supra at 113. Rick Jarrett testified that upon contracting with Black, he received a copy of the contract, bid documents and project specifications from Black, which Black testified included the construction plans, the excavations necessary to complete the project including those deeper than five feet, and the safety requirements of trenching. (Tr., pgs. 368, 384-385, 402, 424). Jarrett also acknowledged attending a few biweekly meetings and receiving copies of the minutes from the biweekly meetings he did not attend. (Tr., pgs. 301, 380, 438-439,). Black testified that safety procedures were discussed in some of the meetings. (Tr., pg. 309). Clark also testified that Abbott had made the statement "It would be heck ever to have to be — get buried alive and I'd never want to know" shortly before the cave-in that caused his death. (Tr., pg. 557). This, unfortunately, demonstrates that Abbott himself appreciated the danger of being in the trench and no contrary evidence was presented in the record or at trial. *Page 743 In its supplemental filing to this Court, Abbott has cited the recent case of Cefaratti v. Mason Structural Steel Co., Inc. (1998),82 Ohio St.3d 121, to support reversal and remand of the instant case. The Court in Cefaratti summarily reversed the lower court decision and remanded the case for consideration under Sopkovich, supra. Id. at 121. Since Cefaratti only contained a summary of facts in the dissenting opinions, Abbott attached the Memorandum in Support of Jurisdiction that was filed by Cefaratti. However, even reviewing the memorandum and the facts of Cefaratti, the latter case is entirely distinguishable from the instant case in that the general contractor in Cefaratti actually removed a safety feature at the exact site where the subcontractor was working. The instant case involved no removal of any safety feature by Black. Thus, the instant case fails to show an exercise of authority or control over the critical variables in Abbott's or Jarrett's work environment by Black. Further, in Cefaratti the Court does not elaborate on its reasons for reversal and remand except for reconsideration under Sopkovich, supra. In the instant case, we have already considered Sopkovich and find that Black did not direct control over the work area or the work activities of Jarrett and did not otherwise actively participate in them. Further, Black did not grant or deny permission to Jarrett with regard to any critical act leading to Abbott's death. Abbott also contends in his first assignment of error that the trial court erred in directing a verdict for Jarrett as reasonable minds could have concluded based upon the evidence that Jarrett committed an intentional tort against Abbott. It should first be noted that Jarrett has failed to file an Appellee's brief in this matter. Pursuant to App. R. 18(C), this Court may accept as true Appellant's statement of the facts and issues presented in the Brief and reverse' the judgment if Appellant's Brief reasonably appears to sustain such action. In addition, it is also important to note that the Ohio legislature enacted R.C. 2745.01 (Employer's Liability for Intentional Tort) on November 1, 1995 to supersede the effect of Ohio Supreme Court decisions including Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115, that previously controlled this issue. However, the legislature did not expressly make R.C. 2745.01 retroactive and therefore, since Abbott's claim was filed prior to the effective date of R.C. 2745.01, it is not applicable to this case. See R.C. 2745.01; Nolan v. Ormet Corp. (Sept. 10, 1997), Monroe App. No. 790, unreported. In Hannah v. Dayton Power Light Co., the Ohio Supreme Court reviewed the history of its establishment of an employee's claim against his employer for intentional tort. (1998), 82 Ohio St.3d 482, 484-485. *Page 744 The Court first recognized such a claim in Blankenship v. CincinnatiMilacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, when it found that an exception existed to the worker's compensation exclusivity doctrine which allowed an employee to bring an intentional tort action against his employer. The protection afforded to employers under the Worker's Compensation Act has always been for negligent acts and not for intentional torts. Nolan, supra. To allow employers to escape liability under the Worker's Compensation Act for intentional conduct would be tantamount to encouraging such conduct, and this clearly cannot be reconciled with the purpose and spirit of the Act or the public policy of encouraging a safe work environment. Nolan, supra citing Brady v.Safety-Kleen Corp. (1991), 61 Ohio St.3d 624. The Ohio Supreme Court first defined the term "intentional tort" inJones v. VIP Dev. Co. as "an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur." (1984), 15 Ohio St.3d 90, 95. The Court held that an employee need not prove that the employer possessed a specific intent to injure in order to prove an intentional tort where ". . . the actor proceeds despite a perceived threat of harm to others which is substantially certain, not merely likely, to occur. It is this element of substantial certainty which distinguishes a merely negligent act from intentionally tortious conduct." Id. at 95. The legislature responded by limiting the scope of actions which employees could bring under the intentional tort exception against an employer. In Fyffe, supra at 118, the Court established that an employee must show the following elements in order to prove the intentional conduct on the part of an employer" "(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task." The Fyffe Court also reaffirmed that in order to sustain an intentional tort action against an employer, proof beyond that which is required to prove negligence and beyond that necessary to prove recklessness must be established. The Court elaborated: "Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the *Page 745 probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk — something short of substantial certainty — is not intent." Fyffe, supra at 118. While it is true that Rick Jarrett previously worked for the Ohio Department of Natural Resources, he testified that he was never in a situation where individuals were required to go into the trenches. (Tr., pg. 415). He also testified that he did not know the safety procedures for trenching. (Tr., pg. 421). In fact, Rick Jarrett testified that the instant project was the first in which he had excavated a trench beyond five feet deep. (Tr., pgs. 420, 928). He also testified that he did not feel uncomfortable while physically inside of the deeper trenches, including one that experienced a minor cave-in and that one in which Abbott was found. (Tr., pg. 485). Abbott's own expert confirmed that Rick Jarrett was unaware of the harm that could result (Tr., pg. 898, 928, 1011) and that Rick Jarrett was not competent to supervise this particular trench. (Tr., pgs. 933, 1011). Although he acknowledged that he received a copy of the contract with Black which included safety procedures on trenching, Rick Jarrett testified that he merely skimmed the documents. (Tr., pgs. 424-425). Further, the testimony elicited by deposition and affidavits previously discussed in this opinion (page 15, first full paragraph through page 16, second full paragraph) demonstrates that there was sufficient evidence offered to support a finding that Jarrett committed an act with the belief that injury was substantially certain to occur. The critical acts which led to Abbott's death were that he entered a trench deeper than five feet without a means of egress and without the presence of any safety measures or safety equipment to eliminate the hazard of deep trenching. The evidence clearly establishes that despite the fact that Jarrett had knowledge of and received the safety procedures which pertained to the job in question, Jarrett did not request that such safety equipment be present on the job and retained complete control over this aspect. Consequently, Jarrett continued to have its workers, including Abbott, dig a trench over five feet deep when a cave-in was substantially certain to occur, without the benefit of proper safety equipment. The prevention of a tragedy such as occurred in this case is the exact reason why it is necessary to follow the safety procedures as provided. The trial court erred in directing a verdict in favor of Jarrett as reasonable minds could have concluded, based upon the evidence presented, Jarrett committed an intentional tort against Abbott. Abbott has a viable cause of action against Jarrett and we remand for further proceedings as against Jarrett. The second assignment of error alleges: *Page 746 "THE TRIAL COURT ERRED IN DIRECTING A VERDICT FOR DEFENDANT BLACK WHEN THERE WAS SOME EVIDENCE OF RECORD TO SUPPORT A FINDING THAT DEFENDANT BLACK NEGLIGENTLY HIRED DEFENDANT JARRETT." Abbott submits that the trial court applied the wrong legal standard in determining that Abbott failed to meet the elements of negligent hiring and asserts that the correct legal standard is that "an employer who engages an independent contractor with either actual or constructive knowledge that the contractor does not possess that measure of skill required for the proper performance of the work is liable for negligence in hiring the incompetent contractor." Fitzpatrick v. Miller Bros.Constr., Inc. (Sept. 4, 1986), Adams App. No. 428-429-439, unreported [citations omitted]. Abbott contends that negligent hiring was proven with the sufficiency to allow the issue to be decided by the jury. In support of the negligent hiring claim, Abbott points to David Black's testimony that he was required to have a knowledgeable safety supervisor present on site even at the subcontractor sites and that his supervisor for Jarrett was Rick Jarrett. (Tr., pgs. 260, 364). Abbott's expert witnesses confirmed that neither Rick Jarrett nor his crew were qualified to excavate trenches beyond five feet. (Tr., pgs. 260, 364). Abbott also argues that the lower court erred in excluding the deposition of Richard Butler, an individual who could establish that Abbott had relied on Black to require the use of proper safety equipment by the subcontractors. Butler testified that Abbott expressed to him a concern regarding the inability to use safety equipment present on the site because of time constraints imposed by Black. (Butler Depo., pg. 12). Black counters that Abbott's cases regarding negligent hiring by a general contractor all involve claims by a third party, not the employee of an independent subcontractor. Black cites Best v. Energizer SubstationServ., Inc. (1993), 88 Ohio App.3d 109, 115, where the court held that a principal cannot be held liable for negligent selection of the independent contractor in a claim by an employee of the independent contractor. Abbott responds that even if Best, supra is the applicable law, the court in that case intimated that such a claim could be asserted if it were shown that the subcontractor's employee relied upon the general contractor to hire competent independent contractors. Even if we would accept Abbott's assertion of the law as to negligent hiring, Abbott has failed to meet its burden to present substantial competent evidence that Black had actual or constructive knowledge that Rick Jarrett lacked the measure of skill necessary to properly perform the work for which he was hired. While Abbott's experts testified that the Jarrett crew was not qualified to excavate the deeper trenches and that Rick Jarrett was not qualified to be *Page 747 a safety supervisor on the deeper trenches, these opinions are based upon information gathered after the accident and the opinions are thus made in hindsight. Further, these opinions do not assert that Black or anyone else had actual or constructive notice of Jarrett's lack of skill. Black first met Rick Jarrett at a preconstruction site that both were bidding on as contractors. (Tr., pg. 289). This implied to Black that Rick Jarrett must consider himself qualified to be a contractor. Black spoke to Rick Jarrett for two hours and asked him if he would be interested in working on the instant project. (Tr., pg. 290). Black received a letter from Michael Mozena, an individual with whom Jarrett had previously worked at the Ohio Department of Natural Resources and for whom Jarrett had performed other work. Mozena recommended Jarrett for employment and stated that Jarrett's previous work complied with the standards of the Ohio Department of Natural Resources. (Tr., pg. 292; Mozena Depo., pg. 34). Additionally, Rick Jarrett acknowledged that Black gave him a copy of the contract and the construction plans showing the trenches that were necessary for the project and also attached copies of the safety requirements necessary when excavating trenches deeper than five feet. (Tr., pgs. 368, 384-385, 402, 424). Rick Jarrett testified that he felt comfortable and qualified doing that for which he was hired and did not complain to Black or to others that he could not do the job or that he needed assistance. (Tr., pgs. 487-488). Black did not question Jarrett's ability to excavate as he had been on the job six months and had installed 160 laterals without incident. (Tr., pg. 366). Even assuming that questions arose during the project regarding the quality of Jarrett's work, including a minor cave-in occurring at a site previously excavated by Jarrett, no witness at trial testified that these incidents resulted from Jarrett improperly excavating or failing to use safety equipment. Additionally, Jarrett had excavated a few deeper trenches earlier in the project without incident and neither Black nor the engineers on the project criticized Jarrett's trenching practices. (Tr., pgs. 367, 885). Abbott's assignment of error on negligent hiring therefore is without merit. In the final assignment of error, Abbott argues: "THE TRIAL COURT ERRED IN EXCLUDING SEVERAL ADDITIONAL ITEMS OF EVIDENCE WHICH WERE RELEVANT AND WHICH REASONABLE MINDS COULD USE TO SUPPORT A VERDICT AGAINST ONE OR BOTH OF THE DEFENDANTS." A trial court's admission of evidence is within the sound discretion of the trial court to determine. See State v. Dennis (1997),79 Ohio St.3d 421, 431; State v. Maurer (1984), 15 Ohio St.3d 239, 264. Evid.R. 401 provides that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In considering whether the probative value of evidence *Page 748 outweighs the danger of unfair prejudice under Evid.R. 403(A), the trial court is vested with sound discretion to make such a determination and an appellate court should not interfere with that determination absent a clear abuse of discretion. See State v. Allen (1995), 73 Ohio St.3d 626,633-34 reconsideration denied, 74 Ohio St.3d 1422, certiorari denied,116 S.Ct. 1276, citing State v. Morales (1987), 32 Ohio St.3d 252, 257-58. An appellate court finds an abuse of discretion only when it determines that the trial court's attitude was unreasonable, arbitrary or unconscionable, and not merely an error of law or judgment. Blakemore v.Blakemore (1983), 5 Ohio St.3d 217, 219. In reviewing matters decided under Evid.R. 403, "A reviewing court should be slow to interfere unless the court has clearly abused its discretion and a party has been materially prejudiced thereby. The trial court must determine whether the probative value of certain evidence and/or testimony is substantially outweighed by the danger of unfair prejudice, or of confusing or misleading the jury." Cleveland v. Petko (1996), 112 Ohio App.3d 670, 676, quoting Shimola v. Cleveland (1992), 89 Ohio App.3d 505, 511. Further, a court of appeals will not reverse a judgment predicated on an erroneous evidentiary ruling unless a substantial right of the party is affected. Evid.R. 103 (A). Based upon the foregoing, this Court cannot find that the trial court abused its discretion on any of the evidentiary rulings assigned as error in Abbott's appeal. Additionally, even if one or all of the evidentiary rulings were deemed erroneous, we cannot find that any of the rulings would affect a substantial right of Abbott so as to warrant reversal. Abbott first asserts that the trial court erred in excluding evidence of OSHA citations issued to Black in January of 1992 for the use of improper safety procedures in deep trenching and OSHA citations issued to both Black and Jarrett in October of 1992 after Abbott's unfortunate death. Abbott contends that the January citation is relevant to demonstrate that Black was put on notice that its employees, including the subcontractor's employees, must employ proper safety procedures in excavating deep trenches. Abbott argues that the citations issued to Black and Jarrett after the October, 1992 accident were relevant to show that Black actively participated in the work of Jarrett and that Rick Jarrett committed an intentional tort. Abbott proposes that these citations were relevant, but presents no analysis, caselaw or other authority to support the contentions. Generally, a plaintiff cannot admit testimonial or documentary evidence of OSHA violations by the employer as all courts except the Alabama Supreme Court have held such evidence to be prejudicial, irrelevant and hearsay. Rothstein, *Page 749 Occupational Safety and Health Law (4th Ed. 1998) 561, Section 513. The Ohio Supreme Court has held that a violation of OSHA does not constitute negligence per se. Hernandez v. Martin Chevrolet, Inc. (1995),72 Ohio St.3d 302, 304. Employing the abuse of discretion standard, we cannot find that the trial court erred in excluding evidence of the OSHA violations. While the January citation may be relevant to show that Black was aware that certain safety practices were necessary when performing deep trenching procedures, the citation does not demonstrate that Black in any way owed a duty to Abbott, the employee of a subcontractor. As we have earlier discussed, Black did not directly involve itself with the manner and mode of Jarrett's trenching. Further, evidence of Black's knowledge of safety procedures was already established when David Black, the owner of Black, testified that he was aware of the safety procedures necessary when conducting deep trenching excavations. The January citation was issued against Black due to a failure by Black's employees to slope a trench of sufficient width required for a particular type of soil. Thus, safety procedures were employed, if not to the desired extent. The citation was not issued against Black for a failure by a subcontractor or a subcontractor's employees, but of his own employees. Again, Abbott cites no caselaw to support that an OSHA citation negates the burden of proof necessary to establish active participation or a duty upon a general contractor to the employee of a subcontractor. Thus, even if this citation were excluded improperly, the result was not prejudicial as it would not have established a duty upon Black as to Abbott. Similar to the January citation, the OSHA citation issued to Black after Abbott's death does not aid Abbott in establishing active participation or a duty owed by Black to Abbott, who was engaged in the subcontractor's work. Black and the entire Jarrett crew testified that Black did not direct the trenching on October 29, 1992 and was unaware of the trenching and safety methods used or that an individual was in the trench on that day. (Tr., pgs. 435, 499, 502, 512, 513, 528). Further, the trial court did allow the OSHA investigator to testify in full. Although the investigator was not allowed to refer to OSHA violations specifically, he was allowed to testify as to the proper safety procedures and that the lack of safety procedures on October 29, 1992 violated industry standards. Again, even if the OSHA violations were admitted, they would not have refuted the basis upon which the directed verdict was granted; the lack of active participation or duty owed by Black to Abbott. With regard to the establishment of intentional tort against Jarrett, the only OSHA violation against him was issued only after the accident occurred. *Page 750 Abbott also contends that the trial court improperly excluded evidence of Black's subsequent completion of the lateral with the proper safety equipment after Abbott's death. Abbott contends that this subsequent remedial measure is admissible per Evid.R. 407 as it was not offered to prove that Abbott's death was less likely to occur, but was offered to show Black's active participation over this part of the project and the feasibility of precautionary measures that could have been taken before Abbott died. Abbott asserts that Black knew that Jarrett did not have the proper equipment for deep trenching and improperly had Jarrett conduct the excavation of this particular site knowing that a deep trench was necessary. While Abbott is correct that evidence of subsequent remedial measures is admissible if offered to prove control or the feasibility of precautionary measures, the issue again is whether it was probative to establish active participation or a duty owing from Black to Abbott as an employee of a subcontractor. Black admitted having some control over Jarrett as per the contract between the parties. Black also admitted to having overall responsibility and supervision over the entire project as per its agreement with the Village. As earlier discussed, Ohio law holds that this is insufficient to establish active participation by Black in Jarrett's excavation on October 29, 1992. See Bond,72 Ohio St.3d at 337. Exclusion was not an abuse of discretion as against Black. Additionally, the fact that Black performed the rest of the installation of the lateral does not show control over Jarrett as necessary to avoid the directed verdict, but again merely shows control over the entire project. The Jarrett crew testified that due to Abbott's death, they were unable to return to the site to complete the job. (Tr., pgs. 406, 579). Black as general contractor was responsible for the entire project's completion. Black was forced to complete the lateral when Jarrett could not return. The exclusion of the subsequent remedial measure was not an abuse of discretion as this evidence was irrelevant to establish active participation by Black at or before the time of Abbott's death. Abott also contends that the trial court erred in excluding the deposition of Richard Butler, an individual with whom Brad Abbott spoke days before his death regarding the use of safety equipment in the trenches. Butler testified that Brad Abbott told him about a cave-in that occurred in another trench in which he was almost buried sometime before the instant incident. When Butler inquired of Brad about the use of safety equipment, Butler testified that Brad Abbott told him that safety equipment was present at the site but the crew felt unable to use it due to time constraints. Abbott contends that this was relevant evidence against Jarrett to show Rick Jarrett's knowledge of the substantial certainty of harm. Abbott also asserts that this rebuts the trial testimony that Brad Abbott was not involved in a prior cave-in and that the testimony establishes that Brad *Page 751 Abbott relied on Black to hire Jarrett as a competent subcontractor. Abbott cites Evid.R. 804(B) (5) which provides an exclusion to the hearsay rule when the declarant is unavailable as a witness and the statement was made by the decedent where "(a) the estate or personal representative of the decedent's estate . . . is a party, and (b) the statement was made before the death . . . and (c) the statement is offered to rebut the testimony by an adverse party on a matter within the knowledge of the decedent . . ." Black does not dispute the correct use of Evid.R. 804(B) (5) by Abbott during trial. Black asserts, however, that adverse testimony was not presented for which Butler's deposition testimony regarding Brad Abbott's hearsay statements was necessary for rebuttal. Usually Evid.R. 804 (B) (5) statements are not used during a plaintiff's case in chief. The statements can be offered to rebut an adverse parties' testimony when the adverse parties are testifying as if on cross-examination in the case in chief. See Bobko v. Sagen (1989),61 Ohio App.3d 397, 409-410. Evid.R. 804 (B) (5) exists to benefit a representative of a decedent to allow the decedent to "speak from the grave" to rebut testimony of an adverse party. Bilikam v. Bilikam (1982), 2 Ohio App.3d 300, 305. Abbott correctly asserted Evid.R. 804(B) (5) at the appropriate time. The trial court erred in excluding the deposition testimony. While error for the court to exclude this evidence, even if allowed, it would not have any relevance on the claim of Abbott's negligent hiring. Abbott also contends that the trial court erred in refusing to allow an economist testify at trial as to damages sustained by Brad Abbott for hedonic loss, or the loss of the pleasure of life. Abbott cites Fantozziv. Sandusky Cement Prod. Co. (1992), 64 Ohio St.3d 601, 618 as support. The trial court found Fantozzi, supra distinguishable from the instant case and disallowed the economist to testify as to the loss of pleasure of life by Brad Abbott. The court also refused a jury instruction as to such losses as separate from those damages already allowed in a wrongful death action. We find that based on our standard of review, the trial court did not abuse its discretion in excluding this evidence. Abbott further contends that the trial court improperly excluded the coroner's report, the sheriff's report, and the OSHA investigator's written findings as they were admissible under Evid.R. 803 (8) as public records and reports. We do not find an abuse of discretion with regard to the exclusion of these documents into evidence. As Abbott acknowledges, the coroner, the *Page 752 sheriff and the OSHA investigator were allowed to testify in full at trial. They set forth the methods employed in their investigations and stated their conclusions subject to direct and cross examination. While Abbott correctly cites Evid.R. 803 (8) as allowing these reports in evidence as official reports and publications, Evid.R. 403 comes into play as well, because the reports also contained statements from individuals who did not observe the accident. Although these reports were relevant and subject to the hearsay exception under Evid.R. 803(8), the trial court found that the danger of unfair prejudice, confusion of the issues and misleading the jury could result if the reports were admitted with these unreliable statements contained within them. Additionally, the reports should be deemed as cumulative evidence so as to exclude them under Evid.R. 403 (B) as the coroner, the sheriff and the OSHA investigator all testified in full as to their investigations and conclusions therefrom. Thus, no substantial right was affected by ruling these inadmissible. Abbott next asserts that the trial court erred in not admitting a November 13, 1992 construction report that contained a statement that Black used Jarrett's equipment in finishing work at the site. Abbott contends that this report was relevant to show that Black actively participated in its subcontractor's work. The assertion is without merit. Black's use of another's equipment after the incident does not establish that Black actively participated in Jarrett's work on the trench that is the subject of this action before the incident occurred. Further, use of the equipment does not in and of itself establish active participation and Abbott offers no law or other authority indicating the contrary. Abbott lastly argues that the trial court erred in excluding the audio portion of a witness' videotape of the scene. Again, Abbott sets forth no law to support his claim, except to say that the trial court allowed the video to be presented to the jury at trial in a muted fashion. Mr. Taylor, a friend of the decedent's, took a videocamera to the scene of the accident shortly after it occurred. As he was videotaping the scene and measuring the trench, he offered commentary on the scene which included the measurements. At trial, the videotape was played for the jury but the audio portion was muted due to concerns over speculative comments and hearsay. Mr. Taylor, who was on the stand at the time the video was played for the jury, however, was permitted to comment on each segment of the videotape as it played. (Tr., pgs. 119-129). Mr. Taylor did set forth at trial his measurements on the trench and surrounding measurements that were taken. (Tr. pgs. 122-129). The trial court refused to allow the videotape into evidence for fear that the jury would not follow an instruction limiting them to watching the tape only without listening to the audio portion. It is within the discretion of the trial court *Page 753 to determine which exhibits should be sent to the jury room. C.T. TaylorCo. v. Melcher (1983), 13 Ohio App.3d 6, 6-7. Although admittedly it is common practice for a court to send exhibits admitted into evidence into the jury room, in this instance, the trial court feared that the jury would not abide by its admonishment to not play the audio portion of the tape that had been excluded from the jury's ear during the trial. This is not an abuse of discretion. Further, the videotape contained scenes of the trench. The jury did not need the video to resolve any confusion they had regarding the scene as many other exhibits described and depicted the scene in its entirety. Even if the trial court erred in excluding the videotape from the jury's deliberations, we do not find this to affect any substantial right to warrant reversal. Finally, it should be noted that Black's appellate brief mentions in one line that the trial court improperly overruled its renewed motion for summary judgment and should have granted that motion instead of proceeding to trial since directed verdict was granted in its favor. Black alleges that the same evidence was presented at the time of its renewed motion for summary judgment as existed during Abbott's case in chief. Black did file a notice of cross appeal. At the point in which the renewed summary judgment motion was filed, the trial court ruled that Abbott had presented genuine issues of material fact so as to allow the case to proceed. Reviewing the record in a de novo fashion, we cannot find that the trial court erred in overruling the motion for summary judgment in this voluminous case. Black met the initial burden of establishing that it was entitled to judgment as a matter of law. However, Abbott met its reciprocal burden of providing sufficient proof to establish that genuine issues of material fact on active participation and negligent hiring may exist. At trial, however, after presentation of Abbott's case in full, the trial court found that the evidence did not warrant legal sufficiency to go to the jury. Thus, the trial court erred on the side of caution in overruling the motion for summary judgment and allowing Abbott to fully develop its case. This cause of action seems to us as a reviewing court the wisest one. For the reasons stated, the judgment of the trial court is affirmed in part and reversed in part and the cause is remanded to the trial court for further proceedings according to law and consistent with this opinion. Vukovich, J., concurs. Waite, J., dissents in part and concurs in part. See dissenting in part and concurring in part opinion. APPROVED: _________________________________ EDWARD A. COX, PRESIDING JUDGE *Page 754

2016-07-06 06:42:04.402306+00

While I concur with the majority opinion as it relates to the general contractor, David Black Contracting Services, Inc., and would affirm the trial court decision as to this Appellee, and also agree with the majority as to the evidentiary matters, I must dissent from the majority opinion where it reverses the trial court as to the other Appellee, Jarrett Reclamation Services, Inc. From a review of the record and viewing the evidence in a light most favorable to Abbott, I believe that the trial court was correct in granting a directed verdict for Jarrett. Pursuant to the applicable law as found in Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115, in order to find an employer has committed an intentional tort against an employee, the conduct must rise above mere negligence. The employer must know that because of his actions, injuries are ". . . certain or substantially certain to result from the process, procedure or condition . . . mere knowledge and appreciation of a risk — something short of substantial certainty — is not intent." Fyffe, supra, at 118. Rick Jarrett was most certainly negligent here. He received with his contract for work a packet of materials which included safety requirements for digging trenches deeper than five feet, (Tr. pgs. 368, 384-85; 402, 424) but barely skimmed the materials (Tr. pgs. 425-425) and thus did not really know what safety procedures were required. (Tr. pg. 421). He had no experience on a job of this kind or magnitude, (Tr. p. 415) yet accepted the job anyway. Further, safety issues were sometimes discussed by Black at biweekly construction meetings which Jarrett occasionally attended (Tr. pgs. 301, 309, 380, 438-439). Unfortunately, Jarrett never fully appreciated the hazards of his current job. (Tr. pgs. 898, 928, 1011). Negligence on the part of an employer does not hold that employer liable in intentional tort, however. Fyffe, supra. The standard is whether Jarrett knew with "substantial certainty" injury would occur by doing business in the way he had for the past several months and trenching in the manner he had used for several years. There is a plethora of evidence in the record that Rick Jarrett did not have substantial certainty his employees would be injured. Even if we negate Rick Jarrett's own testimony as self-serving, we cannot escape the fact that the Abbotts' own expert, Plaintiff's witness, testified not once but several times that Rick Jarrett was unaware of the harm that could result form the operation and his ignorance rendered him incompetent to supervise this job. (Tr. pgs. 898, 928, 933, 1011). Since the Abbotts' own expert testified that Jarrett did not have the requisite certainty, it is evident that the Abbotts did not meet the necessary burden in order to avoid directed verdict in this matter. Even inferring that Jarrett's work was inherently dangerous and thus that Rick Jarrett must have had some knowledge of the danger involved, Abbott has failed to demonstrate that Jarrett Reclamation Services or Rick Jarrett himself possessed knowledge which rose to a substantial certainty that injury would be *Page 755 caused by being in the trench. That Rick Jarrett himself was inside the trenches bears this out. For the foregoing reasons, I would affirm the trial court decision in total. I do not find from the record that Abbott presented any evidence that Jarrett knew with substantial certainty that his employees would sustain injury from their working conditions or procedures. Thus, I must dissent with the majority on this issue. APPROVED: _________________________________ CHERYL L. WAITE, JUDGE

2016-07-06 06:42:04.572662+00

OPINION {¶ 1} This is an appeal from a judgment of the domestic relations division of the court of common pleas, denying a post-decree motion to modify a prior order allocating parental rights and responsibilities. {¶ 2} The parties, Thomas and Catherine Chapman, were divorced on March 21, 2002. *Page 2 Thomas1 was designated residential parent of the parties' three minor children. Catherine was awarded parenting time with the children and ordered to pay child support. {¶ 3} In 2003, following emancipation of the oldest of the three children, Catherine was designated residential parent of the next-oldest child, Kelsey. Thomas was ordered to pay child support for Kelsey. {¶ 4} On March 21, 2005, Catherine requested the domestic relations court to designate her residential parent of the parties' youngest child, Elizabeth. Catherine alleged in her motion that Elizabeth "expresses significant unhappiness in the current situation, and further that the child desires to relocate to her mother's home and to begin her high school career in the fall of 2005 in the high school in her mother's school district." (Dkt. 155). {¶ 5} Catherine's motion was referred to a magistrate pursuant to Civ.R. 53(D)(1)(a). The magistrate conducted a hearing on the motion. On August 16, 2005, Catherine, Thomas, and two of their emancipated children, testified in open court. The magistrate interviewed Elizabeth in chambers, pursuant to R.C. 3109.04(B)(1)(c). {¶ 6} On September 26, 2005, the magistrate filed a decision denying Catherine's motion. On that same date, the domestic relations court entered an interim order adopting the magistrate's decision pursuant to Civ.R. 53(D)(4)(e)(ii). With respect to the magistrate's interview of the minor child, the decision states: {¶ 7} "This magistrate interviewed the minor child, Elizabeth, in this matter. Elizabeth indicated that her preference would be to live with the defendant, but she was unable to articulate, to this magistrate's satisfaction, any valid reasons. The only reason Elizabeth could really articulate was that she wanted to live with her mother because her sister is presently up *Page 3 there.2 Elizabeth acknowledges that the vast majority of her friends reside in the Miamisburg area and that she is very close to her father's side of the family." (Dkt. 79, p. 6). {¶ 8} Catherine filed timely objections to the magistrate's decision. She contended that the magistrate failed "to give adequate and proper weight to the wishes and concerns of the minor child." Catherine's application noted that a transcript of the proceedings before the magistrate had been requested and that supplemental objections would be filed upon review of the transcript. (Dkt. 180). {¶ 9} Pursuant to a praecipe Catherine filed, transcripts of the proceedings before the magistrate were prepared and were filed on October 27, 2005. The portion of the transcript of the magistrate's in-chambers interview of the minor child were filed under seal, pursuant to Mont.Loc.R. 4.31. {¶ 10} Catherine filed supplemental objections to the magistrate's decision on December 9, 2005, in memorandum form. The filing reads, in its entirety: {¶ 11} "As can be determined from a review of the Court's interview of the minor child, the child in this case is extremely unhappy in her current situation, and she wishes to live with her sister and mother. Clearly, the deterioration of the child's happiness, along with the introduction of the father's girlfriend (father has now remarried) is a change of circumstances for (Elizabeth). Further, because of the child's age and because of her persistent a [sic] well-established desire to live with her mother, the Magistrate failed to give adequate weight to the wishes and concerns of the child and should have recommended that custody be changed." (Dkt. 186). {¶ 12} After its review of Catherine's objections, Thomas's response to the objections, *Page 4 and the record, the trial court overruled the objections on May 17, 2006. The court stated, in pertinent part: {¶ 13} "The magistrate overruled defendant's motion to reallocate parental rights and responsibilities. He found that Elizabeth's primary reason for preferring to reside with defendant resulted from her desire to live with her older sister, Kelsey, who will in all likelihood be attending college within the next three months and will no longer reside with defendant. Furthermore, he found that Elizabeth was unable to articulate any justifiable reason for wanting to live with defendant and that there was a high risk of alienation if a change in custody occurred. {¶ 14} "Defendant specifically obj ects to the determination that there was not a change of circumstances warranting a change in custody of Elizabeth. She further argues that the magistrate did not give adequate weight to the wishes and concerns of the child and should have recommended that custody be changed. {¶ 15} "It is clear through the testimony that the parties are not amicable toward one another. Further, there is a marked concern for potential alienation by defendant if granted custody of Elizabeth. Moreover, there is uncontroverted testimony concerning defendant's mental health, counseling sessions, suicide attempts, and general well being that raise major concerns about defendant's ability to parent Elizabeth. Further, while the time frame of such remarks is questionable, the oldest children both testified concerning the defendant's demeaning and derogatory characterization of plaintiff in front of the children. {¶ 16} "It appears from the record that Elizabeth is thriving in her current situation, evidenced by her grades, friends, and numerous extracurricular activities, and that removing her from plaintiff s custody and placing her in defendant's custody would not be in her best interest. Further, pursuant to R.C. 3109.04(E)(1)(a)(iii), the court finds that under the facts of the case, *Page 5 the harm likely to be caused by a change of environment is not outweighed by any advantages of the change of environment to the child. {¶ 17} "Lastly, the child's wishes are only one factor to be considered pursuant to R.C. 3109.04; it is clear that weight was given to several factors under this statute and that the magistrate made no error in determining that it is in Elizabeth's best interest to remain in plaintiffs custody." (Dkt. 189, pp. 2-3). {¶ 18} Catherine filed a timely notice of appeal from the judgment of the domestic relations court. Catherine subsequently asked this court to unseal the transcript of the magistrate's interview of the minor child. We declined to do that, finding that whether the transcript was properly sealed is a merit issue that should be raised in Defendant-Appellant's brief on appeal. However, in a subsequent decision and entry, we ordered bifurcated proceedings on (1) whether the domestic relations court erred in sealing the transcript and (2) the merit issues relating to the court's denial of Catherine's motion to modify its order allocating parental rights and responsibilities for the minor child in favor of Catherine. The case is now before us on the first of those two issues. FIRST ASSIGNMENT OF ERROR {¶ 19} "THE TRIAL COURT ERRED BY IMPROPERLY CONSTRUING § 3109.051 AS A MEANS OF PROHIBITING A PARENT FROM REVIEWING A TRANSCRIPT OF AN IN CAMERA INTERVIEW OF THEIR MINOR CHILD FOR THE PURPOSE OF MAKING A PROPER APPEAL" SECOND ASSIGNMENT OF ERROR {¶ 20} "THE TRIAL COURT ERRED BY IMPROPERLY CONSTRUING § 3109.04, NOT READING THE STATUTE AS A WHOLE IN ORDER TO DETERMINE LEGISLATIVE INTENT" *Page 6 THIRD ASSIGNMENT OF ERROR {¶ 21} "MONTGOMERY COUNTY LOCAL RULE § 4.31 IS UNCONSTITUTIONAL OR IN THE ALTERNATIVE IS INVALID ACCORDING TO SECTION 5(B) ARTICLE IV OF THE OHIO CONSTITUTION." {¶ 22} The three assignments of error present issues that are intertwined. Accordingly, they will be considered together. {¶ 23} It appears to be the case, and the parties do not dispute, that the transcript of the magistrate's interview of the minor child was sealed pursuant to Mont.Loc.R. 4.31, which states: {¶ 24} "All interviews of children shall be pursuant to the criteria set forth in R.C. 3109.04(B)(2) and 3109.051(C).3 The transcript of the child's interview shall be sealed and not available to any party or attorney without a court order." {¶ 25} Article IV, Section 5(B) of the Ohio Constitution authorizes the Supreme Court to adopt rules of practice and procedure, and further provides that "[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect." Paragraph 5(C) authorizes courts to adopt "rules concerning local practice in their courts which are not inconsistent with the rules adopted by the supreme court." {¶ 26} Civ.R. 53(D)(3)(b)(ii) states: "An objection to a magistrate's decision shall be specific and state with particularity all grounds for objection." Paragraph (iii) of the same rule provides, in pertinent part: "An objection to a factual finding, whether or not specifically designated as a finding of fact under Civ.R. 53(D)(3)(c)(ii), shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding or an affidavit of that *Page 7 evidence if a transcript is not available." {¶ 27} Appellant has proffered a copy of the domestic relations court's judgment of October 5, 2006, denying her motion to unseal the transcript. The judgment states that Appellant's motion was filed on July 18, 2006. The notice of appeal invoking our jurisdiction was filed on June 16, 2006. No amended or other notice of appeal was filed thereafter. Therefore, any abuse of discretion in denying Appellant's motion of July 18, 2006 is not before us. {¶ 28} Nevertheless, a reading of the domestic relations court's judgment denying Appellant's motion to unseal the transcripts is illustrative of that court's purposes in adopting Mont.Loc.R. 4.31, which relies on the interaction of several provisions of R.C. 3109.04(B) and the decisions of several other appellate districts concerning those sections. {¶ 29} R.C. 3109.04(B)(1) requires a court that allocates parental rights and responsibilities to "take into account that which would be in the best interest of the children." That same section provides that the court in its discretion may, and "upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation." {¶ 30} The interview provided by R.C. 3109.04(B)(1) is sometimes called an "in camera interview." Black's Law Dictionary (7th Ed.) contains the following definition of incamera: {¶ 31} "[Law Latin `in a chamber'] 1. In the judge's private chambers. 2. In the courtroom with all spectators excluded. 3. (Of a judicial action) taken when court is not in session.-Also termed (in reference to the opinion of one judge) in chambers." {¶ 32} R.C. 3109.04(B)(2) contains several requirements governing the in camera interview. Section (B)(2)(c) states: "The interview shall be conducted in chambers, and no person other than the child, the child's attorney, the judge, any necessary court personnel, and, *Page 8 in the judge's discretion, the attorney of each parent shall be permitted to be present in the chambers during the interview." Section (B)(3) states, in part: "No person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the child's wishes and concerns concerning the allocation of parental rights and responsibilities . . .," and that "no court . . . shall accept or consider a written or recorded statement or affidavit that purports to set forth the child's wishes and concerns regarding those matters." {¶ 33} In a line of cases beginning with Patton v. Patton (Jan. 9, 1995), Licking App. No. 94, and In re Longwell (Aug. 30, 1995), Lorain App. Nos. 94CA006006 and 006007, several courts have read into R.C.3109.04(B) a further requirement that the transcript of the interview should be sealed. A summary of those holdings is set out in the Twelfth District's decision in Willis v. Willis, 149 Ohio App.3d 50,2002-Ohio-3716: {¶ 34} {¶ 22} "The first sentence of R.C. 3109.04(B)(3) reads: `No person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the child's wishes and concerns regarding the allocation of parental rights and responsibilities concerning the child. ` During the in-camera interview, the child supposedly makes known to the judge his or her wishes and concerns regarding custody. A transcript can be seen as a written or recorded statement setting forth the child's wishes and concerns. [The appellant's] attempt to gain access to the transcript could be interpreted as an attempt to obtain this statement in contravention of R.C. 3109.04(B)(3). * * * It would appear that the legislature intended to prohibit trial courts from relying on potentially fraudulent statements or affidavits produced by the parents. Instead, courts are to obtain the child's wishes and concerns directly from the child during the in-camera interview. * * * {¶ 35} {¶ 23} "R.C. 3109.04(B)(2)(c) reads: `The interview shall be conducted in chambers, and no person other than the child, the child's attorney, the judge, any necessary court *Page 9 personnel, and, in the judge's discretion, the attorney of each parent shall be permitted to be present in the chambers during the interview.' This section clearly provides that the parents may not attend. Further, the parents' attorneys, [who] are no doubt highly partisan advocates of the parents' interests, may attend the interview only with the court's permission. The statute provides that only the child's attorney, an impartial representative of the child's interests, has the right to be present. This section, which in effect insulates the child from any extraneous influences during the interview, suggests that the General Assembly intended to create a `stress-free environment * * * [so that] [children should display candor in setting forth their feelings' regarding custody. Patton v. Patton (Jan. 9, 1995), Licking App. No. 94 CA 40, unreported at 3 [1995 WL 42497]. Affording parents access to the transcript would contravene this intent. Id. The child would be less likely to be candid with the judge if the child knows that his or her parents will later read everything the child says. {¶ 36} {¶ 24} "The dissent in Patton argued that any semblance of confidentiality is illusory, because the child's choice of custodial parent will eventually be revealed in open court. * * * We think this confidentiality serves more fundamental purposes * * *. Domestic relations judges typically use the in-camera interview to discuss a wide variety of issues, including any problems the child may be having with parents, step-parents, siblings, etc. In this way, the judge can identify areas of potential trouble, and may discover, inter alia, that the intervention of a social worker is necessary, or that a new hearing on visitation should be held. We believe that judges should be allowed to keep their private conversations with the children of divorced parents confidential, as many times it is only this promise of confidentiality that convinces these embattled children to speak freely. If we were to accept [appellant's] invitation to declare such practices to be reversible error, we would in effect be depriving domestic court judges of an important tool in gathering information useful not only for making sound custody decisions, but *Page 10 also for addressing the problems of the whole family. In reLongwell (1995), Lorain App. Nos. 94 CA 006006 and 94 CA 006007,1995 WL 520058, at * 3-4, 1995 Ohio App. LEXIS 3825, at * 8-12. {¶ 37} {¶ 25} "The Fifth Appellate District, in turn, aptly noted that `[c]hildren should display candor in setting forth their feelings * * *. The interview is recorded for the purpose of protecting the parties in that an appellate court may review the recorded interviews and determine whether undue influence has been exerted, or whether the court has made proper findings of fact regarding the in chambers interviews.'Patton, Licking App. No. 94 CA 40, 1995 WL 42497, at * 3, 1995 Ohio App. LEXIS 357, at * 9. {¶ 38} {¶ 26} "We find that the foregoing analysis, combined with an appellate court's review of in-camera interviews of children, well protects the rights of the parents while at the same time ensures that children's statements made during the interview remain confidential. We therefore hold that interviews of children conducted under R.C. 3109.051 are confidential and are not to be disclosed to the parents. We further hold that the parents of a child that is the subject of a visitation dispute do not have the right of access to the sealed transcript of the in camera interview between the child and the judge. See, also, Beil v.Bridges (July 13, 2000), Licking App. No. 99CA00135, 2000 WL 977221 (holding that based upon Patton, the sealing of transcripts of children's in-camera interviews did not violate the parents' due process rights)." Willis, ¶ 22-26. {¶ 39} In Myers v. Myers, Licking App. No. 2006 CA 00026,2007-Ohio-66, the Fifth District again refused to provide a mother with transcripts of the in camera interviews of her minor children, noting that such "reasoning is in conformity with the general proposition that the overriding concern of courts in custody cases must be the best interests of the child, which may, at times, conflict with the due-process rights of the parents. `However, due process is a *Page 11 flexible concept and only requires the procedural protection that a particular situation warrants.' (Internal citation omitted). The due process rights of the parents must, therefore, be balanced against the best interests of the child. {¶ 40} "The requirement that the in camera interviews be recorded is designed to protect the due-process rights of the parents. The due-process protection is achieved in this context by sealing the transcript of the in camera interview and making it available only to the courts for review. This process allows appellate courts to review the in camera interview proceedings and ascertain their reasonableness, while still allowing the child to `feel safe and comfortable in expressing his or her opinions honestly and openly, without subjecting the child to any additional psychological trauma or loyalty conflicts.'" (Internal citations omitted). We note the distinction between a proceeding to determine custody and one to terminate parental rights; in a termination proceeding, the parties "must be afforded every procedural and substantive protection the law allows." In re Smith,77 Ohio App.3d 1, 16, 601 N.E.2d 45. {¶ 41} A minority view was adopted by the Fourth District in Inscoe v.Inscoe (1997), 121 Ohio App.3d 396, which "reasoned that if the legislature had intended to deny the parents access to a transcript of their child's in-camera interview, the legislature would have clearly stated that in R.C. 3109.04(B)," and it did not. Id., at 420. The court further observed that without the transcript the parties cannot effectively challenge the court's determinations with respect to the wishes of the child expressed. The court went on to state: {¶ 42} "While we understand the rationale and purpose between thePatton and Longwell decisions, we believe that those decisions read into R.C. 3109.04 language that simply is not there. Although we agree that children may be more candid and forthright during a confidential interview, we must not construe R.C. 3109.04 to achieve a result beyond the clear language of the statute. *Page 12 {¶ 43} "We emphasize that we may not `restrict, constrict, qualify, narrow, enlarge, or abridge' the clear meaning of a statute. InWachendorf v. Shaver (1948), 149 Ohio St. 231, 36 O.O. 554,78 N.E.2d 370, paragraph five of the syllabus, the court held: {¶ 44} "`The court must look to the statute itself to determine legislative intent, and if such intent is clearly expressed therein, the statute may not be restricted, constricted, qualified, narrowed, enlarged or abridged; significance and effect should, if possible, be accorded to every word, phrase, sentence and part of an act, and in the absence of any definition of the intended meaning of the words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.' See, also, State ex rel. Smith v.Columbus (1986), 28 Ohio St.3d 94, 28 OBR 189, 502 N.E.2d 608; State exrel. McGraw v. Gorman (1985), 17 Ohio St.3d 147, 17 OBR 350,478 N.E.2d 770." Inscoe, at 421. {¶ 45} We agree that the transcript of an in camera interview with a child must not be made available to the parents absent a court order. Too often, the children of divorce are beset with "psychological trauma" and "loyalty conflicts" due to the behavior of their parents. We have noted in the past "a recurring and regrettable tragedy in our society — the use of children as pawns in a war between divorced and embittered parents. Truly, such a war has no victors and the ultimate casualties are the children, who stand to suffer deeply and permanently unless their parents can learn to control their hostility and anger towards each other. We have previously emphasized, and stress once again, that children have certain rights, including `the right to love each parent, without feeling guilt, pressure, or rejection; the right not to choose sides; the right to have a positive and constructive on-going relationship with each parent; and most important * * * the right to not participate in the painful games parents play to hurt each other or to be put in the middle of their battles.'" Bell v. Bell (June 5, 1998), Clark App. No. 97-CA-105. Children *Page 13 of divorce "did not ask to be separated from either parent, * * * did not ask to choose between people who love them, and * * * [they] have little control over decisions and actions that greatly affect their lives." Id. {¶ 46} In a custody dispute, the best interest of the child is cardinal. R.C. 3109.04(B)(2)(c) makes clear the legislative intent to provide an in camera atmosphere free of influence, pressure and anxiety so that, if appropriate, a child can participate in the determination of his or her custody. While the court eventually reveals the child's choice of custodial parent in open court, all confidentiality from the in camera interview is not lost or illusory. Sealing the transcript protects the court's ability to gather information not only about the child's custody preference but also about any other problems the family may be experiencing. If one or both parents inappropriately involves a child in the custody dispute, or attempts to influence or manipulate a child, or alienate the other parent from a child, the court's ability to glean this information is strengthened by the sealing of the transcript. A court's inquiry, for example, may include questions such as, "Tell me the things you like, and then tell me the things you don't like about your mom/dad?" If a child believes that every word he or she speaks to the judge may later be read by his or her parents, the child may withhold information and the court's decision-making process may thereby be compromised. To allow parents access to the transcript of their child's in camera interview defeats the statute's purpose to foster candor and also exposes the child to a parent's potentially hostile reaction to the child's words. It is in the best interest of a child, a child who has already been betrayed by the departure of one parent from his or her home, to be able to speak freely without concern of in turn betraying his or her parent. {¶ 47} The child herein was not promised confidentiality, and no especially personal or difficult matters were discussed during the in camera interview. The dissent would order *Page 14 transcripts sealed on a case-by-case basis, and in a matter such as this, where the child is made aware, without objection, that her parents may read her words, leave the transcript unsealed. Catherine's mental health problems, counseling, suicide attempts, and history of disparaging Thomas in front of her children, however, are suggestive of an emotional instability and further convince us that maintaining the seal on the transcript is in the child's best interest. {¶ 48} The dissent would require a court that chooses to seal a transcript to justify the need for confidentiality "on the basis of particularized findings of need." We believe this practice to be overly burdensome for the already overly burdened domestic relations magistrates and judges; the burden should instead be borne by the parent who may petition the court for disclosure of the in camera interview. {¶ 49} We disagree with the dissent's analysis that Mont.Loc.R. 4.31 is at least "inconsistent with" the mandate of Civ.R. 53(D)(3)(b)(ii). According to the dissent, the local rule prevents access to a transcript which the civil rule requires a party to file. However, as noted above, a party may seek an order allowing access and, even if access is denied, may still raise an assignment of error on the in camera issue and obtain appellate review. In other words, the filing of a transcript of the evidence under seal, as required by Mont. Loc.R. 4.31, satisfies the local rule; the transcript of the evidence is available, albeit under seal, for the trial judge to review in determining whether the objection is well-taken. {¶ 50} The often excruciating nature of the decision that a court is called upon to make, between combatants in a custody dispute, mandates that every precaution be taken to insure that a child feel at ease, in order to be candid with the court. The risk of exposure to any parental emotional fallout based on the child's remarks should be minimized or eliminated. The domestic relations court did not err in sealing the transcript. Judgment affirmed. *Page 15 FAIN, J., concurs. 1 For clarity and convenience, the parties are identified by their first names. 2 Catherine's residence is in Sunbury, Ohio, in Delaware County. 3 R.C. 3109.051(C) pertains to grandparent visitation and contains provisions similar to those of R.C. 3109.04(B)(1), (2)(c), and (3) concerning the in camera interview.

2016-07-06 06:42:04.763489+00

OPINION {¶ 1} Defendant-appellant, Mark A. Ellis, was indicted on one count of second-degree robbery, in violation of R.C.2911.02(A)(2) and one count of third-degree robbery, in violation of R.C. 2911.02(A)(3). After a jury trial, appellant was found guilty of both counts and sentenced to four years of incarceration on the second-degree felony and two years of incarceration on the third-degree felony, with the sentences to run concurrently. Appellant filed a notice of appeal and raises the following five assignments of error: I. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO PROVE THAT DEFENDANT-APPELLANT COMMITTED EITHER A SECOND DEGREE ROBBERY IN VIOLATION OF R.C. 2911.02(A)(2), OR A THIRD DEGREE ROBBERY IN VIOLATION OF R.C. 2911.02(A)(3), AND/OR IN THE ALTERNATIVE, DEFENDANT-APPELLANT'S CONVICTIONS FOR THESE OFFENSES ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY HIS COUNSEL'S FAILURE TO REQUEST THE APPROPRIATE JURY INSTRUCTION FOR ROBBERY UNDER R.C. 2911.02(A)(3) AND COUNSEL'S FAILURE TO OBJECT TO THE COURT'S INSTRUCTION WHICH PERMITTED THE JURY TO FIND HIM GUILTY OF ROBBERY UNDER THE "THEFT BY THREAT" STANDARD OF R.C. 2913.02(A)(4), WHICH ALTERNATIVELY CONSTITUTES PLAIN ERROR. III. R.C. 2911.02(A)(2), SECOND DEGREE ROBBERY, AND R.C.2929.02(A)(3), THIRD DEGREE ROBBERY, PROHIBIT IDENTICAL ACTIVITY, REQUIRE IDENTICAL PROOFS, AND YET R.C. 2911.02(A)(2) SUBJECTS OFFENDERS TO A HIGHER PENALTY THEREBY VIOLATING THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION. IV. THE TRIAL COURT ERRED WHEN IT DID NOT GRANT DEFENDANT-APPELLANT A MISTRIAL AFTER A STATE WITNESS IN HER TESTIMONY, REFERRED TO THE FACT MR. ELLIS HAD BEEN INCARCERATED PRIOR TO TRIAL IN VIOLATION OF HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 2 AND 10, ARTICLE 1 OF THE OHIO CONSTITUTION. V. MR. ELLIS' CONVICTIONS ON TWO COUNTS OF DIFFERENT FELONY DEGREE ROBBERIES FOR THE SAME CONDUCT VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTIONS AND/OR THE CONVICTIONS REFLECT AN INCONSISTENT VERDICT THAT REQUIRES REVERSAL. {¶ 2} By the first assignment of error, appellant contends that the state presented insufficient evidence to prove that appellant committed either a second degree robbery in violation of R.C. 2911.02(A)(2), or a third degree robbery in violation of R.C. 2911.02(A)(3), and/or in the alternative, appellant's convictions for these offenses are against the manifest weight of the evidence. The standard of review for sufficiency of the evidence is if, while 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. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. "In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law." State v. Thompkins (1997), 78 Ohio St.3d 380, 386. {¶ 3} The test for determining whether a conviction is against the manifest weight of the evidence differs somewhat from the test as to whether there is sufficient evidence to support the conviction. With respect to manifest weight, the evidence is not construed most strongly in favor of the prosecution, but the court engages in a limited weighing of the evidence to determine whether there is sufficient competent, credible evidence which could convince a reasonable trier of fact of appellant's guilt beyond a reasonable doubt. See State v. Conley (Dec. 16, 1993), Franklin App. No. 93AP-387. * * * Weight of the evidence concerns "the inclination of thegreater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credibleevidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on itseffect in inducing belief." (Emphasis added.) Black's [Law Dictionary (6 Ed. 1990)] at 1594). Thompkins, at 387. {¶ 4} The charges arose out of an incident on June 18, 2004. Gwendolyn Ware testified that she was employed at United Dairy Farmers as the assistant manager and she was the only employee working at approximately 5:30 a.m. (Tr. at 8-11.) Appellant entered the store and approached the counter, told Ware he had a gun, he was on crack and he needed the money. (Tr. at 11.) Ware had previously seen appellant in the store. (Tr. at 10.) She told appellant to leave the store. Appellant then told her he was not playing and she became scared. (Tr. at 12.) Another customer approached the counter, requested cigarettes and appellant backed away. (Tr. at 12.) After the customer purchased the cigarettes, appellant reached over the counter and took money out of the register drawer. (Tr. at 13.) Ware attempted to close the drawer on his hand, but then backed away. (Tr. at 17.) She had pushed the security button the second time appellant approached the counter and she believed he had a gun. (Tr. at 23, 27.) Detective Edward Dahlman testified that Ware "instantly and without hesitation" picked appellant from a photo array. (Tr. at 59.) {¶ 5} Appellant contends that there is insufficient evidence to support his convictions for both second degree robbery pursuant to R.C. 2911.02(A)(2) and third degree robbery pursuant to R.C. 2911.02(A)(3). Appellant argues that there was no force involved in this case sufficient for a violation of R.C.2911.02(A)(3). {¶ 6} R.C. 2911.02 provides in pertinent part, as follows: (A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following: * * * (2) Inflict, attempt to inflict, or threaten to inflict physical harm on another; (3) Use or threaten the immediate use of force against another. (B) Whoever violates this section is guilty of robbery. A violation of division (A)(1) or (2) of this section is a felony of the second degree. A violation of division (A)(3) of this section is a felony of the third degree. {¶ 7} R.C. 2901.01(A)(3) defines physical harm as "any injury, illness, or other physiological impairment, regardless of its gravity or duration." Appellant was charged with two offenses which involve separate distinct elements. In addition to the attempting or committing a theft offense, R.C. 2911.02(A)(2) requires proof of infliction or attempted infliction or threatened infliction of physical harm. R.C. 2911.02(A)(3) requires use or threatened use of force against another. These are distinct and separate acts and may be proven by essentially the same evidence but may be offenses of similar import. Appellant made an implied threat of physical harm to Ware when he told her he had a gun, was on drugs and needed the money. Telling a person that you have a gun in connection with a demand for money permits a reasonable inference of a threat of physical harm, which is sufficient for R.C. 2911.02(A)(2). {¶ 8} R.C. 2901.01(A)(1) defines "force" as "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." Furthermore, "[t]he type of force envisioned by the legislature in enacting R.C. 2911.02 is that which poses actual or potential harm to a person." State v.Wilson (Sept. 30, 1996), Franklin App. No. 96APA04-431, quotingState v. Carter (1985), 29 Ohio App.3d 148, 149, citing Committee Comment to R.C. 2911.02. In State v. Davis (1983),6 Ohio St.3d 91, paragraph one of the syllabus, the Supreme Court of Ohio held that the use or threat of immediate use of force used in a robbery is satisfied if there is sufficient fear likely to cause the victim to part with the property. Appellant argues that Ware was not afraid. Ware's testimony provides the opposite. {¶ 9} Ware testified that initially she was not afraid. However, when appellant told her he was not playing, she became afraid. (Tr. at 12.) She stated: The look in his eyes, you know, I didn't even think when I did that. To be honest, I did not think. It just the look in his eyes showed me a different person than the person that I had normally seen. He seemed harmless before. But that day it was a certain look in his eyes. I just gave it up. Hey, he can have it. (Tr. at 39.) {¶ 10} Proof of an offense may be circumstantial as well as by direct evidence, each of which possess the same probative value. Jenks, supra, at the first paragraph of the syllabus. A reasonable inference of threat of physical harm may be made from the fact that appellant repeatedly told Ware that he had a gun, especially when coupled with his statement that he was not playing around. Such evidence sufficiently supports the making of an inference of a threat of physical harm if the person addressed does not comply with the demand for money. Moreover, more than one reasonable inference may be made from the same circumstantial evidence when justified Here, a second inference of use of or threat to use force may be made from the same evidence. The jury could and did make two separate inferences from the same evidence inferring both the use of force element of R.C. 2911.02(A)(3) and the threat of infliction of physical harm element of R.C.2911.02(A)(2) from the same evidence. Both are reasonable inferences from the evidence. {¶ 11} This court recently found there was sufficient evidence of a threat of force where the defendant told the store clerk that he was not going to "pull a gun" but implied that he had one. See State v. Delany, Franklin App. No. 04AP-1361,2005-Ohio-4067. In Davis, supra, the court found that a threat of the immediate use of force can be proven by demanding words and a threatening demeanor. In this case, appellant threatened the use of a gun two times and had his hand underneath his shirt so that Ware testified that she was afraid. This is sufficient force for R.C. 2911.02(A)(3). Appellant's first assignment of error is not well-taken. {¶ 12} By the second assignment of error, appellant contends he was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and ArticleI, Section 10 of the Ohio Constitution by his counsel's failure to request the appropriate jury instruction for robbery under R.C. 2911.02(A)(3) and counsel's failure to object to the court's instruction which permitted the jury to find him guilty of robbery under the "theft by threat" standard of R.C.2913.02(A)(4), which alternatively constitutes plain error. {¶ 13} In order to demonstrate that his counsel's representation was ineffective, appellant must demonstrate that: (1) counsel's performance was deficient; and (2) this deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687. "A defendant does not state a claim for ineffective assistance of counsel unless his attorney acted unreasonably given the facts of the case, and the unreasonable conduct was prejudicial to the defense." State v. Mills (1992),62 Ohio St.3d 357, 370, certiorari denied, Mills v. Ohio (1992), 505 U.S. 1227, 112 S.Ct. 3048. Counsel need not raise meritless issues. State v. Hill (1996), 75 Ohio St.3d 195. InState v. Braxton (June 6, 1985), Franklin App. No. 84AP-924, this court held that, where the failure to object does not constitute plain error, the issue cannot be reversed by claiming ineffective counsel. {¶ 14} Appellant contends that his counsel was ineffective for failing to request an instruction defining force to include "actual or potential harm to persons." See State v. Bush (1997), 119 Ohio App.3d 146; State v. Furlow (1992),80 Ohio App.3d 146. The trial court provided the following instruction: Force means any violence, compulsion or constraint physically exerted by any means upon or against a person or thing. * * * If you find that Gwen Ware was placed in fear and that her fear was reasonable under the circumstances, and that it would cause a reasonable person to give up her property against her will, then you may find that the state has proved the element of force. (Tr. at 103.) {¶ 15} When determining whether a trial court erred in its jury instructions, an appellate court reviews the instruction as a whole. Wozniak v. Wozniak (1993), 90 Ohio App.3d 400, 410. A trial court has broad discretion in instructing the jury. Statev. Smith (2002), Franklin App. No. 01AP-848, 2002-Ohio-1479. In order to find that the trial court abused its discretion, we must find more than an error of law or judgment, an abuse of discretion implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219. Most instances of an abuse of discretion result in decisions that are unreasonable as opposed to arbitrary and capricious. AAAA Enterprises, Inc. v. River Place CommunityUrban Redevelopment Corp. (1990), 50 Ohio St.3d 157. A decision that is unreasonable is one that has no sound reasoning process to support it. {¶ 16} The trial court gave the jury the statutory definition of force pursuant to R.C. 2901.01. "[A]mplification of statutory definitions is inadvisable, is likely to introduce error, and is to be done, if at all, only with extreme care not to prejudice either party to a criminal case." Wilson, supra, quoting Statev. Mahoney (1986), 34 Ohio App.3d 114, 119. This court has already determined that an additional instruction utilizing language from the Committee Comment to R.C. 2911.02 is unnecessary. See State v. Morgan (Jan. 13, 2000), Franklin App. No. 99AP-307. Appellant's counsel was not ineffective for failing to request the instruction or object to the given instruction. {¶ 17} Appellant argues alternatively that this constitutes plain error. Although generally a court will not consider alleged errors that were not brought to the attention of the trial court, Crim.R. 52(B) provides that the court may consider errors affecting substantial rights even though they were not brought to the attention of the trial court. "`Plain error is an obvious error * * * that affects a substantial right.'" State v.Yarbrough, 95 Ohio St.3d 227, 244, 2002-Ohio-2126, at ¶ 108, quoting State v. Keith (1997), 79 Ohio St.3d 514, 518. An alleged error constitutes plain error only if the error is obvious and, but for the error, the outcome of the trial clearly would have been different. Yarbrough, at 244-245. "[N]otice of plain error is taken with utmost caution only under exceptional circumstances and only when necessary to prevent a manifest miscarriage of justice." State v. Martin, Franklin App. No. 02AP-33, 2002-Ohio-4769, at ¶ 28. Since we have determined that the instruction was unnecessary, the failure to request it does not constitute plain error. Appellant's second assignment of error is not well-taken. {¶ 18} By the third assignment of error, appellant contends that R.C. 2911.02(A)(2), second degree robbery, and R.C.2929.02(A)(3), third degree robbery, prohibit identical activity, require identical proofs, and yet R.C. 2911.02(A)(2) subjects offenders to a higher penalty thereby violating the equal protection clause of the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution. Given our disposition of the fifth assignment of error, this assignment of error is rendered moot. Moreover, we have noted above that there are distinct elements of force and infliction of physical harm which distinguishes the two offenses. {¶ 19} By the fourth assignment of error, appellant contends that the trial court erred when it did not grant appellant a mistrial after a state witness in her testimony, referred to the fact appellant had been incarcerated prior to trial in violation of his right to due process as guaranteed by the Fifth andFourteenth Amendments to the United States Constitution and Sections 2 and 10, Article 1 of the Ohio Constitution. Appellant argues that the following exchange violated his due process rights: Q. And do you see that person before you today in court? A. Yes, I do. Yes. He just looks a lot better. But I see him. Q. How does he look better? A. Well, as far as I'm concerned time served did him some justice. (Tr. at 20-21.) {¶ 20} The trial court then instructed the jury, at 22, as follows: Mr. Churchill, the objection is sustained. The witness may have made some reference to a matter that was not responsive to the question that had something to do other than with the identification of the defendant. And the jury is instructed to disregard anything that does not relate to the identification of the defendant. (Tr. at 22.) {¶ 21} The jury is presumed to follow instructions given by the court. Pang v. Minch (1990), 53 Ohio St.3d 186, paragraph four of the syllabus. Furthermore, a comment referring to a defendant being in jail is not per se a prejudicial remark.State v. Hamilton (Apr. 18, 1985), Cuyahoga App. No. 48945. Appellant relies on the factors provided in Hamilton, supra, to argue that his rights were violated. The court in Hamilton, at ¶ 5, set forth factors for the court to consider whether the conduct was prejudicial to a defendant's rights, as follows: (1) [T]he nature of the remarks, (2) whether an objection was made by counsel, (3) whether corrective instructions were given by the court, and (4) the strength of the evidence against the defendant. {¶ 22} Based on the foregoing analysis, we have considered these factors and find appellant's rights were not violated. Appellant's fourth assignment of error is not well-taken. {¶ 23} By the fifth assignment of error, appellant contends that appellant's convictions on two counts of different felony degree robberies for the same conduct violates the double jeopardy clause of the Fifth Amendment to the United States Constitution and Article I, Section 10, of the Ohio Constitutions and/or the convictions reflect an inconsistent verdict requiring reversal. {¶ 24} Appellee concedes that this assignment of error should be sustained to the extent that the trial court erred in impermissibly sentencing appellant on both robbery counts. The counts should have merged pursuant to R.C. 2941.25. Appellant's fifth assignment of error is well-taken in part. {¶ 25} For the foregoing reasons, appellant's first, second and fourth assignments of error are overruled, the third assignment of error is moot and the fifth assignment of error is sustained only to the extent that the trial court erred in failing to merge the sentences. Accordingly, the judgment of the Franklin County Court of Common Pleas is affirmed in part, reversed in part, and we remand the cause only for resentencing.Judgment affirmed in part, reversed in part, and cause remandedfor resentencing. Petree and Travis, JJ., concur. Whiteside, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), ArticleIV, Ohio Constitution.

2016-07-06 06:42:04.931791+00

DECISION AND JUDGMENT ENTRY This accelerated appeal is before the court from a judgment denying appellant's "Crim.R. 47 Motion to Modify Sentence." While appellant, Michael Hibbler, sets forth a single assignment of error, we affirm the trial court's judgment on a different basis. Once the trial court carries a valid sentence into execution as authorized by R.C. 2949.05, it no longer has the jurisdiction to amend or modify that sentence. State v. Rowe (1997), 118 Ohio App.3d 121, 123. When a sentence involves imprisonment, execution of sentence commences when the defendant is delivered from the temporary detention facility to the prison. In re Zilba (1996), 110 Ohio App.3d 258, 261 (Citations omitted.); State v. Garretson (June 30, 2000), Madison App. No. 99-10-123, unreported, quoting Brook Park v. Necak (1986),30 Ohio App.3d 118, 120. It is undisputed that appellant was sentenced on March 17, 1999 and was in prison at the time of his motion to modify. Thus, unless appellant's sentence was invalid, the trial court had no recourse except to deny the motion. A sentence is invalid or void when the court attempts "to disregard statutory requirements when imposing the sentence." State v. Beasley (1984), 14 Ohio St.3d 74, 75. See, also, Newburgh Heights v. Halasah, (1999), 133 Ohio App.3d 640, 646; Garretson, supra. In the present case, appellant was convicted of attempted possession of crack cocaine, a violation of R.C. 2923.02 and R.C. 2925.11(A) and (C)(4)(d), a felony of the second degree. R.C. 2925.11(C)(4)(d) reads, in material part: "If the amount of the drug involved * * * equals or exceeds ten grams but is less than twenty-five grams of crack cocaine, possession of cocaine is a felony of the second degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree." (Emphasis added.) R.C. 2929.14(A)(2), again as in effect at the time appellant committed the charged offense, indicates that a prison term for a second degree felony shall be "two, three, four, five, six, seven, or eight years." Here, appellant failed to file a transcript of the sentencing hearing; therefore, because the four year mandatory sentence meets the statutory requirements, it is not void. Accordingly, the trial court lacked the authority to modify appellant's sentence in the proceeding below. Because it is an issue that cannot form the basis of a motion to modify a sentence, appellant's assignment of error concerning the trial court's failure to sentence him in accordance with a plea agreement is found not well-taken. The judgment of the Lucas County Court of Common Pleas on appellant's motion to modify is affirmed. Costs of this appeal are assessed to appellant. Melvin L. Resnick, J. James R. Sherck, J. Richard W. Knepper, P.J., JUDGES CONCUR.

2016-07-06 06:42:05.081664+00

OPINION *Page 2 {¶ 1} On August 6, 2003, the Richland County Grand Jury indicted appellant, Kyle Barkimer, on one count of rape in violation of R.C.2907.02 and one count of unlawful sexual conduct with a minor in violation of R.C. 2907.04. Said charges arose from an incident involving a fifteen year old girl. {¶ 2} On February 5, 2004, appellant pled guilty to an amended count of sexual battery in violation of R.C. 2907.03 and the unlawful sexual conduct with a minor count. By judgment entry filed March 23, 2004, the trial court sentenced appellant to a total aggregate term of four years in prison. {¶ 3} On October 18, 2004, appellant filed a motion for judicial release. By judgment entry filed May 2, 2005, the trial court denied the motion, but indicated it would reconsider the motion if appellant was accepted in the Volunteers of America program in Cincinnati. {¶ 4} On July 25, 2005, another trial judge held a judicial release hearing, and granted appellant judicial release to the "VOA — Cincinnati." The trial judge imposed a three year period of community control sanctions. {¶ 5} On February 2, 2007, the original trial court filed an entry entitled "Proposed Correction of Community Control Conditions," extending appellant's community control to a total of five years. {¶ 6} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: *Page 3 I {¶ 7} "THE TRIAL COURT ERRED BY ORDERING AN ADDITIONAL TWO YEARS OF COMMUNITY CONTROL WHERE DEFENDANT BARKIMER DID NOT VIOLATE ANY TERM OR CONDITION OF EITHER HIS JUDICIAL RELEASE OR HIS COMMUNITY CONTROL SANCTION." I {¶ 8} Appellant claims the trial court erred in extending his term of community control beyond the time set at his judicial release hearing, as he had not violated any terms of his judicial release or his community control. {¶ 9} In its entry entitled "Proposed Correction of Community Control Conditions" filed February 2, 2007, the trial court stated the following: {¶ 10} "The undersigned judge, to whom this case was assigned, has learned that another judge of this court judicially released the defendant in this case in July, 2005. At the time, there was no pending motion for judicial release, and neither the prosecutor nor the victims were notified of the judicial release hearing. {¶ 11} "In addition, the term set by the releasing judge is shorter than that the undersigned judge imposes for this type of crime. This fact was discussed with defendant at his probation review and he consented to the full term. It is therefore ordered that the defendant's term of probation is fixed at five (5) years. If the defendant has any objection to this extension of his community control, he may file his objections with the court, and the court will set the issue of the judicial release and conditions of release for further examination and hearing." *Page 4 {¶ 12} We note a May 2, 2005 judgment entry signed by the "undersigned judge" denied appellant's motion for judicial release, but stated it would consider judicial release "only with residential placement to the Volunteers of America in Cincinnati which has a long waiting list at this time. The court will reconsider the motion when a bed is available." {¶ 13} The docket lists a probation review hearing scheduled for November 13, 2006. There is no transcript of this hearing. Appellant did not file objections to the trial court's proposed correction entry as directed, but instead filed an appeal. {¶ 14} Because the trial court has yet to formalize the community control extension, we find this appeal is not an appeal of a final appealable order. See, R.C. 2505.02. {¶ 15} Pursuant to Crim.R. 42(A), appellant has the right to be present and represented during the imposition of any extended community control. {¶ 16} Upon review, we find we lack jurisdiction to review the appropriateness of the community control extension. The appeal is dismissed. By Farmer, J. Gwin, P.J. and Wise, J. concur. Farmer, J. Gwin, P.J. and Wise, J. concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, this appeal is dismissed. *Page 1

2022-11-23 16:04:54.214869+00

Nichols

NICHOLS, Judge, delivered the opinion of the court: The issues presented in this breach of contract case are (1) whether a contract requirement that performance be completed within 900 days is an affirmative representation or warranty by the government that the contract could, in fact, be completed within the stated time, and (2) whether the government’s failure to disclose superior knowledge of delays and cost overruns that occurred in previous contracts prior to the award of this contract amounted to a breach. For the reasons discussed herein, we hold that the government neither made an affirmative representation nor failed to disclose any information which it had a duty to disclose, and therefore plaintiff is entitled to no relief. Defendant United States Government prosecutes various exceptions to the report of Trial Judge Spector, wherein the trial judge recommended that the government did breach a contract with plaintiff American Ship Building Company. The trial judge reasoned that the government had failed to disclose facts of which it was aware about cost overruns and delays in previous similar contracts, and therefore breached this contract and is liable for similar overruns in the instant case. Additionally, the trial judge found that a 900 day requirement for performance in the contract was effectively a representation by the government that work could be completed within that time. The government attacks that recommendation and contends that it had no obligation on the facts of this case to disclose the history of previous contracts without any request from the contractor. The government further argues that it made no representation that the contract could be completed within 900 days, it merely set a due date. Lastly, the government criticizes the trial judge as biased and prejudiced. It excepts to several of the trial judge’s findings, but we have not reviewed the exceptions because the trial judge’s conclusions cannot be *222sustained even on the findings he made. The court’s findings of fact are embodied in the opinion. Facts In 1964, the Department of Commerce decided to add a fourth oceanographic research vessel to its fleet. This new vessel, the Researcher, was to be smaller and lower powered but with great automation and advanced instrumentation. Problems, however, had occurred in performance of previous contracts. In 1960, the first vessel was delivered 354 days late at a cost in excess of 127 percent of the original estimate. In 1962 contracts were awarded on the second and third vessels, which were to be the first to employ fully Centralized Engineer Room Control (CERC). CERC is an automated system which extends the operator’s supervision and control of a ship into all parts of its machinery plant and permits centralized observation and monitoring of the machinery through the use of sensors, microphones, and cameras. The trial judge found that delays and cost overruns in the construction of these two vessels were attributable to problems in the CERC system and the performance of Westinghouse, the subcontractor for the system. The government, however, had consistency attributed these costs to contractor inexperience and inefficiency. It is clear that someone failed to take into account the fact that the CERC represented an advance in the state of the art with all the engineering problems that usually accompany such advances and are eliminated only as production models succeed prototypes. Because of delays, the second vessel was delivered 689 days late for a total construction time of 1,374 days, and the third vessel was delivered 848 days late for a total construction time of 1,492 days. In developing its cost estimate for the Researcher, the Commerce Department used cost data derived from construction of the previous vessels. Overrun costs incurred by the earlier vessels were not included, however, allegedly because these costs were not thought to be legitimate costs of an efficient business operation. An invitation for bids on the Researcher was issued on January 7, 1966. Notwithstanding the time overruns of the earlier contracts, the *223invitation provided that no bid that fixed completion of the vessel in excess of 900 days would be considered. When plaintiff submitted its bid, it allegedly was unaware of the monetary losses and time overruns suffered by the other shipbuilders. Although testimony illustrated that the CERC system was complex and plaintiff testified that at the time it prepared the bid, it knew it would have to subcontract the CERC system, it introduced no evidence showing it even bothered to consult with Westinghouse or any other specialized electrical firm prior to preparing the bid, as to what the problems might be. Three bids were received, and the contract was awarded to plaintiff on June 6,1966, at a contract price of $8,382,431. Westinghouse was the CERC subcontractor. Delivery was due 900 days from the date of award, November 24, 1966. However, the Researcher was delivered 511 days late on June 18, 1970. When delivered, the vessel met all of the contract specifications, but at a total asserted cost of $13,155,955.37. Plaintiff claims a total loss of $4,546,383.87, excluding lost profits. Before the trial judge, plaintiff argued that the government made an affirmative representation that the contract could be performed within 900 days and that it withheld material facts that past contracts had suffered from delays and overruns. Defendant pointed to the entire absence of a nexus in the evidence between the losses of prior contractors, as defendant knew of them, and the losses of plaintiff. The ships were different, the power plants were different, and the CERC system had been specified for enough previous ships, that the problems to be encountered in the Researcher might be hoped to have been already solved. At least no evidence was offered to demonstrate otherwise. In fact, the plaintiff introduced no evidence whatsoever as to what the actual problems with the Researcher were. In short, defendant’s case is that the losses may have been post hoc but were in no way shown to be propter hoc. Alternatively, plaintiff contended that under the doctrines of either mutual or unilateral mistake, it was entitled to reformation of the contract. For the following reasons we hold the government did not make a representation or warranty that the ship could be completed within 900 days and that it .did not withhold material information from plaintiff. *224Lastly, we hold plaintiff is not entitled to contract reformation. 900 Days Requirement Our interpretation of whether the 900 days requirement is a due date, agreed to by the contractor or a warranty by the government, in effect, will determine which party guaranteed completion within 900 days. A due date can be characterized as a contract requirement establishing when performance by the contractor must be completed. By entering into the contract, the contractor warrants it can perform by the due date. One expects a contractor would examine the specifications provided to determine the complexity of the contract and make inquiries where necessary in light of its own capabilities. The contractor would then make a business judgment in deciding whether it could complete the contract by the due date. How long it takes to perform a contract is a function of the specification requirements and the contractor’s capabilities. The bidder knows or should know both before bidding, but the government knows but one, unless it makes a capability survey of the kind familiar in many cases but not found here. By finding that the 900 days was a warranty, the trial judge transposed the situation and made the government a warrantor. See H. E. Crook Co. v. United States, 270 U.S. 4 (1926). For a warranty to exist there must be either an affirmation of fact or a promise which relates to performance under the contract. See, e.g., Uniform Commercial Code § 2-313. Such promises may result from the express words of the parties or may be implied by the courts from interpreting the contract. United States v. Foley, 329 U.S. 64, 67 (1946). For example, the government is held to warrant the correctness of design specifications contained in a government contract. United States v. Spearin, 248 U.S. 132 (1918). In evaluating the actions of the parties in this case, aware of all the surrounding circumstances, and cognizant of the realistic and legitimate expectations of parties to government contracts, we find it beyond "the realm of expectation” that the government either expressly or impliedly warranted the contract could be performed *225within 900 days. See H. E. Crook Co. v. United States, supra. Rather it invited those who thought they could deliver in 900 days to submit bids. We hold, therefore, the 900-day requirement was not a warranty or affirmation but a mere due date. Superior Knowledge. The trial judge also proposed that under the doctrine of superior knowledge, the government should have disclosed information on prior delays, costs, and risks of performance. The doctrine of superior knowledge is generally applied to situations where (1) a contractor undertakes to perform without vital knowledge of a fact that affects performance costs or duration, (2) the government was aware the contractor had no knowledge of and had no reason to obtain such information, (3) any contract specification supplied misled the contractor, or did not put it on notice to inquire, and (4) the government failed to provide the relevant information. See e.g., Helene Curtis Industries, Inc. v. United States, 160 Ct.Cl. 437, 312 F.2d 774 (1963). In Helene Curtis, the government was aware the contractor reasonably assumed it could perform the contract without utilizing a grinding process, yet because the government knew grinding was necessary and failed to so inform the contractor, we held the government liable for breach of contract. Likewise, this court has granted relief where the government failed to reveal vital information not readily available concerning site conditions which would increase the contractor’s costs. See Hardeman-Monier-Hutcherson v. United States, 198 Ct.Cl. 472, 458 F.2d 1364 (1972); Ragonese v. United States, 128 Ct.Cl. 156, 161-62, 120 F.Supp. 768, 770-71 (1954). In the instant case the specifications were sufficient to show the plaintiff what was required under the contract. There is no issue of defective or misleading specifications. Also, there was no withholding of a vital fact affecting performance which the government knew plaintiff was unaware of. Since the government was not asked about earlier contracts, it might have assumed plaintiff obtained information elsewhere. Even more important, it is difficult *226to determine what fact the government should have provided plaintiff. It would be irresponsible procurement to seek to deter bidders from bidding, or even seem to do so. The evidence shows the government believed reasonably or unreasonably, but in good faith, that the problems in the earlier contracts were largely attributable to contractor inefficiency and inexperience. Perhaps plaintiff wished the government had prominently displayed in the invitation to bid a proviso that "only knowledgeable and experienced contractors need apply.” It is, however, reasonable for the government to assume that a contractor is the best judge of its competency and will exercise good judgment in deciding to bid on a contract. Without commenting on its merits, we find Johnson Electronics, Inc., ASBCA No. 9366, 1965-1 BCA ¶ 4628, inapposite to plaintiffs situation. There the board found that there was a performance specification; the unit called for had never been manufactured previously; the brief 90 days delivery schedule in the contract indicated the contract could be performed by a small business with no ability to carry on an extended research and development program; and there was no evidence of contractor incompetence. On those facts the board held the contract was impossible to perform. The government’s failure to warn small businesses that extensive research and development efforts would be required compounded to its advertising the procurement on a fixed-price, small business set-aside amounted to a failure to disclose vital information. The board held that the government’s action was a termination for convenience with costs recoverable. We think the decision can best be explained on the assumption that an award on a small business set-aside carries with it certain implied obligations to protect the contractor against taking on a task too great for it to perform. In the instant case the specifications were not performance but design. Several ships otherwise different but utilizing the CERC system had been constructed. Unlike Johnson Electronics, supra, where the short time limit and small business set-aside misrepresented the nature of the required development and research, there was no misrepresentation here. All plaintiff need do was to evaluate the *227specifications and decide whether it could complete work by the due date. Prior to submitting its bid, there is no evidence it even consulted with a specialized electronic firm or a contractor with experience in the area. Defendant is not found to have had any way of knowing that details as to the troubles of other contractors for different ships were necessary to plaintiff. Nor was any showing made as to the extent, if any, that plaintiffs losses resulted from causes similar to the causes of loss to prior builders of oceanographic ships. Therefore, plaintiff is entitled to no relief under the doctrine of superior knowledge. Mistake Plaintiff also argued it was entitled to relief under the theories of mutual or unilateral mistake. Obviously any mistake on the part of plaintiff was not shared by defendant under the facts found. Defendant was much better informed than plaintiff. Because the trial judge proposed relief under misrepresentation or special knowledge, he thought it unnecessary to discuss whether relief should be granted because of unilateral mistake. We hold plaintiff is not entitled to relief under a mistake theory. Although unilateral mistake may provide grounds for rescinding an executory contract, Fraass Surgical Mfg. Co. v. United States, 205 Ct.Cl. 585, 596, 505 F.2d 707, 713 (1974), the contract in issue is not executory. Plaintiff would be limited to reformation. The fact that relief must be by reformation is not an inflexible bar as the contract price is sometimes reformed to reflect what it would have been but for the mistake. For relief, there must be clear and convincing evidence of a genuine unilateral mistake of fact — not an error in judgment. E.g, Chernick v. United States, 178 Ct.Cl. 498, 372 F.2d 492 (1967). In the area of bid mistakes, if the contractor makes a mathematical error in preparing the bid, and there is such a disparity between that bid and the other bids or among the bidder’s own figures that the government should reasonably be aware there was an error, then the government is obligated to so inform the contractor. The failure of the government to do so is overreaching under the law of *228equity and justifies reformation. Chernick v. United States, 178 Ct.Cl. at 503-505, 372 F.2d at 495-496. In the instant case plaintiff has failed to present sufficient evidence showing any mistake (except in judgment) or that the government should be charged with knowledge there was a mistake. The duty to warn against a mistake of judgment could not be further developed without creating a dilemma for government officials in view of their duty to foster competition, bring in new suppliers, and eliminate instances of sole source procurement. Therefore, plaintiff is not entitled to reformation. Nexus The plaintiffs theory was that its proof of a breach was complete in the nondisclosure of the losses under prior contracts and in the supposed warranty the job could have been done in 900 days. The showing of a nexus between these matters and the plaintiffs actual losses was in its view a matter of quantum, which was severed and deferred to a later day. As regards the former contention, this might perhaps be true if the former ships and the Researcher had been identical and if the circumstances had not indicated that a change for the better in the degree of difficulty was to be expected, or at least a possibility. It then reasonably might be concluded that defendant was under a duty to warn of the previous disasters, so far as it knew of them to date, because it knew or should have known that the information would be vital to the bidder, on the same principle that it must warn of an obvious arithmetical mistake in bidding. It might then reasonably be concluded that a bid below the experienced costs of previous contractors so plainly indicated ignorance of something the bidder badly needed to know that a duty to warn arose, and the failure to warn was a breach or was overreaching. We do not so hold even in dictum because it is not this case. When the duty to warn cannot be based on that kind of a situation, as here, it can only be imposed by a court, retroactively, if the actual circumstances of performance show that there was a connection between the information withheld from the bidder and the difficulties the bidder *229encountered in performance, with both time and cost. There is no easy and obvious connection when the ships are different and the problems with innovative CERC engineering might be supposed to lie in the past. A breach of a duty to warn does not exist as an abstraction, regardless of the need for a warning or the utility a warning would have. Duties are owed to particular individuals in light of their particular problems. The government official is entitled to assume the bidder has been diligent in informing himself from sources within his reach, including intended subcontractors. In borderline situations, talk that would discourage bidders from bidding must be eschewed; the need for the warning must therefore be manifest. In this particular case, we have no doubt, the defendant rightly relied on the absence of a showing of nexus to justify closing its proofs and demanding judgment on the plaintiffs case. Bias The government contends that the trial judge was personally biased and that his findings are not entitled to a presumption of correctness. Because we hold against plaintiff on the merits, we need not address the prejudice claim here. We add, however, that the allegations of defense counsel are not of a nature to be overlooked, regardless of the outcome of the case. Not having as yet investigated them, we do not lend them credence by repeating them here. They reflect on the ability of the court to supervise the conduct of its trials. They are being considered and will be dealt with independent of this adjudication.1 CONCLUSION OF LAW Therefore, this court holds that the 900 day requirement in the contract was a due date not an affirmative representation or warranty and that the government did not fail to disclose superior knowledge. Thus plaintiff is not entitled to recover for breach of contract. Also, the plaintiff failed to *230show it was entitled to relief of a mutual or unilateral mistake. Judgment is hereby entered for defendant and plaintiffs petition is dismissed. The court did conduct an investigation and determined that no further action was called for, but did not publish any announcement of the result. (Footnote added after opinion was filed.)

2016-07-06 06:42:03.246492+00

George

Relator-appellant, Leslie W. Jacobs, brought this action in mandamus under Ohio's Open Records Act, R.C. 149.43, seeking disclosure of certain documents submitted to the city of Lorain with an application for a community development loan. He now appeals the trial court's denial of his motion for judgment and the granting of judgment in favor of the city. This court reverses and remands the cause to the trial court for further consideration. The city of Lorain, through its community development department, granted a $200,000 loan to Food Industry Equipment International, Inc. ("FIE"), Timothy J. McCullough, president, and Bonnie L. McCullough. Upon Jacobs' written request for access to all documents with respect to the loan, the city's legal department determined that fifteen of the items were confidential and should not be released. Those items were identified as: Item 24 — Application of FIE for loan; Item 25 — Financial information of FIE; Item 26 — Application form; Item 29 — Resume of Timothy J. McCullouth; Item 30 — Personal financial statement of Timothy J. McCullough; Items 31, 32, 33 and 34 — Financial statements of FIE; Item 35 — Statement of income of FIE; Item 36 — Capital requirements program for FIE; Item 37 — List of accounts payable and receivable for FIE; Item 38 — Schedule of FIE mortgages and loans; Item 39 — Ratio worksheet; and Item 40 — Income statement. In an affidavit submitted by the city in response to Jacobs' motion for summary judgment, Timothy J. McCullough stated that these items contained confidential financial and business planning information about FIE and were not intended to become a matter of general public knowledge. The trial court denied Jacobs' motion for summary judgment and rendered judgment for respondent-appellee, Sandford A. Prudoff, Director of the Lorain Department of Community Development. It should be noted at the outset that the trial court erred in awarding summary judgment to the non-moving party. Marshall v.Aaron (1984), 15 Ohio St.3d 48, 15 OBR 145, 472 N.E.2d 335. Civ. R. 56 does not authorize courts to enter summary judgment in favor of a non-moving party. Since the city did not move for summary judgment on behalf of its director of community development, and since the trial court, nevertheless, erroneously awarded it summary judgment, the cause is remanded for further proceedings. In the interest of judicial economy, this court will discuss the three assignments of error Jacobs raises in his appeal. *Page 91 Assignments of Error I. "The court of common pleas erred in denying relator-appellant's motion for summary judgment by ruling that the records in question were not public records pursuant to Section 149.43 of the Ohio Revised Code." II. "The court erred in denying relator-appellant's motion for summary judgment by ruling that the records in question were prohibited by state statutes from being disclosed where the state statutes did not apply." III. "The court erred in denying relator-appellant's motion for summary judgment by ruling that public policy prohibits the disclosure of the records in question." R.C. 149.43 provided (see 140 Ohio Laws, Part I, 1791, 1792-1793) in pertinent part: "(A) As used in this section: "(1) `Public record' means any record that is required1 tobe kept by any governmental unit, including, but not limited to, state, county, city, village, township, and school district units, except medical records, records pertaining to adoption, probation, and parole proceedings, records listed in division (A) of section 3107.42 of the Revised Code, trial preparation records, confidential law enforcement investigatory records, and records the release of which is prohibited by state or federal law. "* * * "(B) All public records shall be promptly prepared and made available to any member of the general public at all reasonable times for inspection. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. * * *" (Emphasis added.) The trial court concluded the documents in question were not public records under the statute because the city community development director was not required to "maintain" the records, even though the information was necessary for him to make a determination as to the loan. This court disagrees. The Supreme Court has construed the language of the statute inDayton Newspapers v. Dayton (1976), 45 Ohio St.2d 107, 108-109, 74 O.O. 2d 209, 210, 341 N.E.2d 576, 577, to mean: "* * * [A]ny record which but for its keeping the governmental unit could not carry out its duties and responsibilities; that the raison d'etre of such record is to assure the proper functioning of the unit. * * *" There does not have to be a specific statutory provision requiring the governmental unit to keep such information or documents. Police Fire Retirees of Ohio, Inc. v. Police Fireman's Disability Pension Fund (1985), 18 Ohio St.3d 231, 18 OBR 289, 480 N.E.2d 482. Here the trial court attempted to distinguish between the need for the information (in order to make a decision on whether or not to grant the loan) and retention of that information after the decision had been made and the loan granted. Former R.C.149.40 (see 131 Ohio Laws 176) defined "record" as: "Any document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office, is a record within the meaning of section 149.31 to 149.44, inclusive, of the Revised Code." The city does not deny that the items in question here were received by the city's community development department *Page 92 and utilized in making the decision to grant the loan. Those items now serve to document that decision of the department. Thus, it is clear that their retention continues to assure functioning of the governmental unit and they accordingly may be reasonably classified as "public records" under R.C. 149.43. SeeState, ex rel. Mothers Against Drunk Drivers, v. Gosser (1985),20 Ohio St.3d 30, 20 OBR 279, 485 N.E.2d 706. The trial court and the city of Lorain cite Dayton also for the premise that a governmental unit need not release its "work products," but only the name of the company or individual receiving the loan. This court can find no support for this argument in Dayton. Rather, Dayton stands for the premise that anything a governmental unit utilizes to carry out its duties and responsibilities is a public record under R.C. 149.43. A finding that a particular document is a "public record" does not, however, complete the analysis. The code contains specific exceptions to the disclosure mandate. The only exception potentially applicable here is the exception for "records the release of which is prohibited by state or federal law." R.C.149.43(A)(1). The trial court found the documents to be exempted from disclosure by R.C. 122.36 and 166.05(E). R.C. 122.36 provides: "Any materials or data submitted, made, or received by the director of development, the industrial technology and enterprise advisory board, and the controlling board, to the extent that the material or data consists of trade secrets, commercial or financial information regarding projects is not deemed to bepublic information or public documents and shall not be open topublic inspection." (Emphasis added.) R.C. 166.05(E) provides: "Financial statements and other data submitted to the director of development, the development financing advisory board, or the controlling board by any private sector person in connection with financial assistance under this chapter, or any information taken from such statements or data for any purpose, shall not be opento public inspection. * * *" (Emphasis added.) R.C. Chapter 122 establishes the Ohio Department of Development to assist in the retention, development, or expansion of industrial and commercial facilities in the state. R.C. Chapter 166 establishes the Ohio Economic Development Program to assist in and facilitate the economic revitalization of the state. Both chapters allow the Ohio Director of Development and various state boards and commissions under his direction to disburse funds, including federal grants, to local governmental subdivisions to achieve certain developmental goals. Before any funds are so disbursed, however, application must be made to the appropriate state program and approved by the appropriate state boards and the Ohio Director of Development. The funds in question here were community development block grants ("CDBG") authorized by Title I of the Housing and Community Development Act of 1974, as amended (Section 5301 etseq., Title 42, U.S. Code). The trial court found the authority for receipt and disbursement of these CDBG funds in R.C. Chapters 122 and 166. Guidelines and procedures enumerated in these chapters, the trial court concluded, apply to the local community development departments "by virtue of the fact that CDBG funds are disbursed to the state," which in turn disburses them to local units. There is nothing in the record, however, to indicate that any application ever went to any state board or to the Ohio Director of Development. All documents filed with the court refer simply to an application filed by FIE with the Lorain Department of Community *Page 93 Development. Further, federal guidelines and procedures for disbursement of these CDBG funds as set forth in Part 570, Title 24, C.F.R., may be read to support Jacobs' argument that federal funds were disbursed directly to the Lorain department and not to the state. If this be the case, neither R.C. 122.36 nor 166.05(E) may be invoked to protect these documents from disclosure, since the state was not involved in the transaction. The city argues the documents are excepted from disclosure under Ohio's Trade Secrets Act, R.C. 1333.51. The Act reads, in pertinent part: "(A) As used in this section: "* * * "(3) `Trade secret' means the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, or improvement, or any business plans,financial information, or listing of names, addresses, or telephone numbers, which has not been published or disseminated,or otherwise become a matter of general public knowledge. Such scientific or technical information, design, process, procedure, formula, or improvement, or any business plans, financial information, or listing of names, addresses, or telephone numbersis presumed to be secret when the owner thereof takes measuresdesigned to prevent it, in the ordinary course of business, frombeing available to persons other than those selected by the ownerto have access thereto for limited purposes. "* * * "(C) No person, having obtained possession of an article representing a trade secret or access thereto with the owner's consent, shall convert such article to his own use or that of another person, or thereafter without the owner's consent make or cause to be made a copy of such article, or exhibit such article to another." (Emphasis added.) If, on remand, the trial court determines the federal funds were disbursed directly to the Lorain Department of Community Development and no application was ever submitted to the state, it will be necessary to consider the city's argument that the documents are excepted from disclosure under R.C. 1333.51. Although trade secrets are generally thought of as scientific or technical designs, processes, procedures or formulas, the state legislature has specifically included within the statutory definition the terms "business plans" and "financial information." Clearly, the legislature intended to protect certain commercial and financial information under this Act. The issue of whether particular information is a trade secret under R.C. 1333.51 is a factual determination for the trial court. Water Management, Inc. v. Stayanchi (1984), 15 Ohio St.3d 83, 15 OBR 186, 472 N.E.2d 715. The particular documents in question must be scrutinized according to the standards set forth in the statute. Jacobs argues the trial court erred in finding public policy favors protecting this type of information from disclosure. This court cannot agree. There is considerable support for concluding that business and financial information submitted to a city department of community development under these circumstances should not be open to public inspection. As noted earlier, the state legislature has explicitly exempted this type of information from public disclosure when it is submitted to the state under R.C. Chapters 122 and 166 in connection with applications for funding through state development programs. The state legislature also spoke clearly in R.C. 121.22(E), when it exempted various state boards from the open meetings requirement when certain financial information, received in confidence, was being discussed. Furthermore, the Federal Freedom of Information Act (Section 552, Title 5, *Page 94 U.S. Code) includes the following exception to a general rule of disclosure for all information submitted to federal agencies: "(b) This section does not apply to matters that are — "* * * "(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential[.]" Congress' intent in including this exception in the Freedom of Information Act was discussed at length in Natl. Parks Conservation Assn. v. Morton (C.A.D.C. 1974), 498 F.2d 765. The court cited testimony of various government agency representatives, as well as national organization spokesmen, to show that Congress was well aware of the problems which could arise from disclosure to competitors of private business data and trade secrets confided to the government. A representative of the Department of Justice is quoted as telling a subcommittee in a hearing on the bill that: "[`]* * * not only as a matter of fairness, but as a matter of right, and as a matter basic to our free enterprise system, private business information should be afforded appropriate protection, at least from competitors.[']" (Footnote omitted.)Id. at 769. The court noted that the report on the bill included the following explanation: "[`] Specifically [the exemption] would include any commercial, technical, and financial data, submitted by an applicant or a borrower to a lending agency in connection with any loan application or loan. S. Rep. No. 813, 89th Cong., 1st Sess. 9 (1965).* * *[']" Id. at 769-770. If this type of information would be excepted from disclosure where the loan application was submitted either to a federal agency or to a state agency, it would be anomalous to find the information subject to disclosure simply because the agency which processed the application happened to be a city department. A city concerned with attracting the best possible candidates for its community development projects must be able to promise confidentiality for financial information and business plans, disclosure of which could be harmful to the applicant. In light of the above, this court reverses the judgment of the trial court and remands the cause for action consistent with this opinion. Judgment reversed and cause remanded. MAHONEY and QUILLIN, JJ., concur. 1 The word "required" was subsequently deleted, see Am. Sub. H.B. No. 238, eff. July 1, 1985, 141 Ohio Laws ___.

2016-07-06 06:42:03.435401+00

Pardee

The defendant in error sued the plaintiff in error in the court of common pleas of Summit county for money which he claimed to have loaned him on or about June 28, 1915; to which petition an answer was filed setting forth a general denial. A jury was waived by agreement of the parties, and the case was submitted to the court. The issues were found with the plaintiff and a judgment was entered for him for the full amount asked in the petition, and the case is now here on error to reverse that judgment. The facts in relation to the matter are substantially as follows: For some time prior to December 4, 1914, the parties to this suit and one James McAllister, now deceased, were in a partnership for the purpose of carrying on a general gambling enterprise, and the same was carried on in the city of Akron under the name of the plaintiff in error *Page 274 for reasons which were satisfactory to the partners. On the last above-named date the said partnership was dissolved by mutual consent, the partnership money, aggregating approximately $20,000, was divided among the partners, and the defendant in error went to another city to engage in a legitimate enterprise. Immediately upon the dissolution of the above partnership, Pohlman and McAllister formed another one to carry on the same kind of business, which was also conducted under the name of Edward Pohlman. This partnership was not so successful as the former one had been, and in a few months the partners suffered such severe losses that they became embarrassed for ready money to pay their gambling debts and issued checks for the same in excess of their balance in the bank. At this time, Bretz, who was in Columbus, Ohio, was called by Pohlman over the long distance telephone, and at Pohlman's request sent $3,000 by special delivery mail to Pohlman at Akron. This money was sent in the form of two checks — one for $2,500, drawn on an Akron bank to the order of Pohlman and signed by the defendant in error, and the other for $500, drawn by Bretz's brother on a Columbus bank and made payable to the defendant in error, which was endorsed by him in blank. These checks were duly received by the plaintiff in error and deposited in his name in an Akron bank, and were used by him in the business which he was then conducting. There is some dispute as to the telephone conversation which took place at the time this money was sent, Bretz claiming that Pohlman told him *Page 275 over the telephone that he had got in bad at the bank and needed some money, and asked him to loan him $3,000, and Pohlman claiming that he said over the telephone that they were broke and had to send some checks out to meet the losses of that afternoon. The plaintiff in error, Pohlman, also claims that before this money was loaned he and McAllister had dissolved their partnership, that he was merely working for McAllister, and that he told Bretz that he was borrowing the money for McAllister. The trial court found from the evidence, and there was some corroboration of Bretz's testimony by other witnesses as to the telephone conversation, that the money was loaned to Pohlman, and from our reading of the bill of exceptions we are satisfied that the trial court was justified by a preponderance of the evidence in so holding. The plaintiff in error also claims that the money was loaned with full knowledge that it was loaned for the purpose of carrying on an illegal enterprise, that only part of the money loaned was used for paying losses then sustained, and that the balance was used for future illegal purposes and therefore could not be recovered. There is not much doubt but that Bretz knew of the general character of the business then carried on by Pohlman and McAllister, but there is no evidence to show that he was a party to the illegal business, or that he in any way participated therein, either by procuring customers for it or sharing in the profits thereof, or otherwise. The evidence of both Pohlman and Bretz as to the telephone conversation indicated that the money was to be used to pay losses then sustained *Page 276 in the illegal enterprise, and not for future business, and that the loan made by Bretz and the promise to repay the same by Pohlman did not have any connection with any illegal acts, because those had already taken place before the loan was made. It is true that Bretz testified on cross-examination that he loaned the money for the purpose of keeping Pohlman in the business in which he was then engaged, but whether Pohlman would continue or not was entirely a surmise or guess on his part, as the evidence, in our opinion, shows that the money was loaned solely for the purpose of paying losses that had then been sustained. We feel that this case comes within the rule announced in the case of Armstrong v. Toler, decided by the Supreme Court of the United States in 11 Wheaton, page 258 (6 Law Ed., pages 468 and 469), where, at page 268, Chief Justice Marshall approves the following holding of the lower court: "But if the promise be unconnected with the illegal act, and is founded on a new consideration, it is not tainted by the act, although it was known to the party to whom the promise was made, and although he was the contriver and conductor of the illegal act." But if the defendant in error thought he knew that some or all of the money might be used in an unlawful business, still this case would come within the rule stated in Graves v. Johnson, decided by the Supreme Court of Massachusetts, in 179 Mass. 53,60 N.E. 383, where the court holds: "Where intoxicating liquors are sold in Massachusetts with intent by the buyer to resell them in another state, contrary to the laws of that state, *Page 277 the seller's mere knowledge of the buyer's intent will not prevent recovery of the purchase price." Chief Justice Holmes, in his opinion in this case, in part says: "All that it is necessary for us to say now is that in our opinion a sale otherwise lawful is not connected with subsequent unlawful conduct by the mere fact that the seller correctly divines the buyer's unlawful intent, closely enough to make the sale unlawful. It will be observed that the finding puts the plaintiff's knowledge of the defendant's intent no higher than an uncommunicated inference as to what the defendant was likely to do. Of course the defendant was free to change his mind, and there was no communicated desire of the plaintiff's to co-operate with the defendant's present intent, such as was supposed in the former decision, but on the contrary an understood indifference to everything beyond an ordinary sale in Massachusetts. It may be that, as in the case of attempts * * * the line of proximity will vary somewhat according to the gravity of the evil apprehended * * * and in different courts with regard to the same or similar matters. * * * But the decisions tend more and more to agree that the connection with the unlawful act in cases like the present is too remote." A reading of the record in this case shows, as stated in the foregoing case, that there was no knowledge communicated by the plaintiff in error to the defendant in error in regard to the loaning of this money and the purpose for which it was to be used, except that it was being loaned for the purpose of taking care of losses already sustained. *Page 278 In our opinion, the burden of proof upon this issue was upon the plaintiff in error, to show that the money was loaned for an illegal purpose and that the lender was to receive some benefit therefrom, and this burden he has failed to sustain. (See Wyman v. Fiske, 3 Allen [Mass.], 238, 80 Am. Dec., 67.) We have read the cases cited by plaintiff in error, but do not think they are applicable to the facts as found in this case. We therefore hold, in the absence of a law in this state prohibiting the recovery of money loaned for the purpose of discharging a gambling debt already incurred, that by the great weight of authority in the United States the lender is entitled to recover the same. Not finding any errors in the record, the judgment is affirmed. Judgment affirmed. WASHBURN, P.J., and TREASH, J., concur. *Page 279

2016-07-06 06:42:04.498763+00

Dinkelacker

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 499 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 500 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 501 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 502 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 503 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 504 {¶ 1} Plaintiffs-appellants, P. Valerie Knowlton and Norma Knowlton, executor of the estate of Peter M. Knowlton (collectively, "the children"), appeal a judgment of the Hamilton County Probate Court in favor of defendants-appellees, *Page 505 Charles Lindberg and Fifth Third Bank, the executors of the estate of Austin E. Knowlton and the trustees of the Austin E. Knowlton Trust (collectively, "the estate"). We find no merit in the children's 12 assignments of error, and we affirm the trial court's judgment. {¶ 2} Austin E. "Dutch" Knowlton was a successful businessman, and his estate was worth millions of dollars. His large fortune allowed him to own numerous shares of stock in the Cincinnati Bengals, which was his estate's primary asset. Valerie and Peter were two of his three children. Peter died while the suit was pending, and his estate became a party. {¶ 3} Knowlton died on June 25, 2003, at the age of 93. A will dated February 7, 1996, was subsequently admitted to probate. That will contained no provision for Knowlton's children or grandchildren. It provided that most of his assets were to pass to the Austin E. Knowlton Foundation either directly or through the Second Restatement of the Agreement of Trust of Austin E. Knowlton. The second restatement named as trustees Lindberg and Robert Fite. Upon Fite's death, Fifth Third became the successor trustee. Lindberg subsequently named his two sons, John and Eric, as his successor trustees. {¶ 4} The will also named Lindberg and Fite as co-executors and Fifth Third as a successor should either co-executor die. Because Fite was deceased at the time of Knowlton's death, Fifth Third became co-executor. {¶ 5} The children filed suit, alleging that Lindberg, Knowlton's longtime attorney and friend, had exercised undue influence on him to execute a will beneficial to himself and his law firm, Taft, Stettinius Hollister. They also alleged that Knowlton's signature on the will was fraudulent. {¶ 6} Following a lengthy trial, a jury returned a verdict in favor of the estate, upholding the validity of the will. The probate court entered a judgment stating that "the purported Last Will and Testament of Austin E. Knowlton dated February 7, 1996, and admitted to probate by this court on June 30, 2003 IS the last Will and Testament of Austin E. Knowlton, deceased." This appeal followed. I. Evidence of Undue Influence {¶ 7} In their first assignment of error, the children contend that the trial court erred in not allowing them to present evidence of undue influence exerted to prevent changes to or revocation of the disputed will, which, according to the law, may continue after the execution of a will. Therefore, the court should have allowed evidence and should not have rejected their proposed jury instruction on that issue. They also argue that evidence of an attorney's failure to inquire about or act upon his client's change in testamentary intent is relevant to the jury's determination of whether undue influence occurred. This assignment of error is not well taken. *Page 506 A. West v. Henry — The Law of Undue Influence {¶ 8} In West v. Henry, 1 the Ohio Supreme Court set forth the elements of undue influence: (1) a susceptible testator; (2) another's opportunity to exert undue influence; (3) improper influence exerted or attempted; and (4) a result showing the effect of that influence.2 The admission of a will to probate is prima facie evidence of its validity. The parties contesting the will bear the burden of proving the elements of undue influence.3 {¶ 9} In applying these elements, West stated, "The mere existence of undue influence or an opportunity to exercise it, although coupled with an interest or motive to do so, is not sufficient to invalidate a will, but such influence must be actually exerted on the mind of the testator with respect to the execution Of the will in question; and, in order to invalidate the will, it must be shown that the undue influence resulted in the making of testamentary dispositions which the testator would not otherwise have made."4 {¶ 10} "General influence, however strong or controlling, is not undue influence unless brought to bear directly upon the act of making the will."5 Simply because the testator's will disposes of his property "in an unnatural manner, unjustly or unequally and * * * at variance" with the testator's expressions about relatives or the natural objects of his bounty, does not invalidate the will unless undue influence was actually exercised on the testator.6 The testator's declarations not made contemporaneously with or near to the will's execution are not admissible as proof of undue influence.7 B. Krischbaum v. Dillon — Attorney as Beneficiary {¶ 11} West remains the law of Ohio on the issue of undue influence.8 In this case, the children rely heavily on the Supreme Court's later pronouncement *Page 507 in Krischbaum v. Dillon.9 In that case, the court held that the presumption of validity that attaches when a will is admitted to probate is rebuttable, not absolute.10 It further held that a rebuttable presumption of undue influence arises when (1) the relationship of attorney and client exists between a testator and an attorney, (2) the attorney is named as a beneficiary in the will, (3) the attorney/beneficiary is not related by blood or marriage to the testator, and (4) the attorney/beneficiary actively participates in the preparation of the will.11 {¶ 12} In so holding, the court stated, "Norms of behavior prescribed in the Code of Professional Responsibility are relevant to the issue of whether an attorney has brought undue influence to bear upon a testator."12 It then discussed at length the nature of the attorney-client relationship and the duties the attorney owes the client. It described how a testator is particularly vulnerable to an attorney's influence.13 {¶ 13} Finally, it stated, "[A] disinterested attorney could be expected to pick up cues, even fairly subtle cues, that his client's testamentary intentions may have changed since the will was executed. The disinterested attorney could then be expected to suggest that his client consider whether to amend the testamentary disposition by executing a codicil or a new will. On the other hand, an attorney who is named as a beneficiary in the will * * * will have an obvious and powerful disincentive to suggest to his client that it may be an appropriate time to consider revising the will. When the testator's attorney is a beneficiary of the will, * * * there is even the possibility that the attorney might use his position as the testator's confidential advisor to frustrate a clearly expressed intention to alter the existing testamentary disposition. This would be a form of undue influence that could be exerted years after the execution of the will naming the attorney as a beneficiary."14 C. Krischbaum Does Not Mandate a Different Result {¶ 14} The children cite the language about the attorney-client relationship in arguing that the trial court should have allowed them to present evidence *Page 508 concerning events that had occurred long after the signing of the will. This argument ignores several things. {¶ 15} First, the holding in Krischbaum is actually "specific and limited."15 The presumption of undue influence did not arise in this case because Lindberg was not a beneficiary of the will. Relying on cases from other states, the children contend that Lindberg was a beneficiary because he received a benefit from being a trustee of the trust and the executor of the estate. The Ohio Revised Code provides that the term beneficiary "includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary."16 Lindberg was none of these. Under Ohio law, he was a fiduciary, not a beneficiary.17 {¶ 16} Second, even Krischbaum states that while a "wide range of inquiry" is necessary because undue influence is usually proved by circumstantial evidence, the evidence is still "subject to the general restrictions concerning relevance."18 The party contesting the will must show undue influence at the time the will was executed.19 In our view, events that occurred long after the signing of the will have diminished relevance, if any at all.20 The decision whether evidence is relevant lies within the trial court's discretion.21 {¶ 17} Finally, the children's argument ignores the fact that the trial court allowed them to present a significant amount of evidence on events that had occurred after the will's signing. Our review of the record shows that they presented most of the evidence that they wanted. The evidence that the court excluded was of only minimal relevance or was cumulative. {¶ 18} The only excluded testimony that the children specifically refer to under this assignment of error is that of Sandra Mikos. She would have testified *Page 509 that in 1998 or 1999, Knowlton had told her that he was not happy with Lindberg's representation and that Knowlton had called Lindberg a "crook" and a "thief." She also testified that she did not discuss his will with him in any detail. {¶ 19} The trial court excluded the testimony under Evid. R. 403, holding that the danger of unfair prejudice outweighed its probative value. In our view, Mikos's testimony was unrelated to the will and was only marginally relevant at best. The trial court's conclusion that the danger of unfair prejudice outweighed its probative value was not so arbitrary, unreasonable, or unconscionable as to connote an abuse of discretion.22 {¶ 20} Under the circumstances, the trial court did not err in limiting evidence about events that had occurred long after the will's signing. Consequently, we overrule the children's first assignment of error. II. Evidence Before and After the Will's Execution {¶ 21} The children's second assignment of error is closely related to their first. In this assignment of error, they contend that the trial court erred when it restricted their evidence of undue influence to a period six months before and after the will's signing. They argue that the court should not have imposed a strict time limit, but should have separately considered each incident and should have resolved admissibility questions on an individual basis. This assignment of error is not well taken. {¶ 22} As we have previously stated, the relevant time period is the time at or near the execution of the will. Courts have held that evidence regarding the exertion of undue influence relating to the execution of a legal document must be confined to a reasonable period before and after the execution of the document.23 The determination of what constitutes a reasonable time period lies within the trial court's discretion.24 {¶ 23} Prior to trial in this case, in response to the parties' numerous motions in limine, a magistrate stated that the court would limit evidence at trial to a period six months before and after the will's execution. The probate court *Page 510 adopted the magistrate's decision. Though that time frame does seem somewhat arbitrary, we need not decide whether the trial court abused its discretion. {¶ 24} A ruling on a motion in limine reflects the court's anticipated treatment of an evidentiary issue at trial. It is "a tentative, interlocutory, and precautionary ruling." The trial court may change its ruling on the disputed evidence in the actual context of the trial.25 In this case, the probate court acknowledged that the rulings on the motions in limine were interlocutory, and it did not enforce the six-month time limit. {¶ 25} In fact, the court considered all admissibility questions on a case-by-case basis and gave the children great latitude to present evidence of events many years before and after the execution of the will. In the evidentiary rulings that the children cite in their brief, the court excluded evidence on relevance or other appropriate grounds. We find no abuse of discretion, and we overrule the children's second assignment of error. III. Expert Testimony on Conflicts of Interest {¶ 26} In their third assignment of error, the children contend that the trial court erred in excluding expert testimony about Lindberg's and Taft's conflicts of interest in their representation of Knowlton. They argue that the conflicts of interest were directly relevant to the issue of whether Lindberg had exerted undue influence on Knowlton. This assignment of error is not well taken. {¶ 27} The trial court has broad discretion in the admission of evidence, including expert testimony.26 The record shows that the children presented three experts on legal ethics who testified at length and expressed their opinions about the alleged conflict of interest. {¶ 28} The trial court also has a duty to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to "make the interrogation and presentation effective for the ascertainment of the truth" and "to avoid needless consumption of time."27 The trial court did limit the experts' testimony to some extent to prevent them from going into unnecessary detail. It was simply trying to direct the questioning to areas of inquiry *Page 511 that were relevant and appropriate, and it did not abuse its discretion in limiting the expert testimony.28 We overrule the children's third assignment of error. IV. Evidence on the Ultimate Issue {¶ 29} In their fourth assignment of error, the children contend that the trial court erred in failing to allow their expert to testify to the ultimate issue. They argue that their legal-ethics expert, Christopher Muth, should have been able to testify that in his opinion, Lindberg had exerted undue influence on Knowlton. This assignment of error is not well taken. {¶ 30} Evid. R. 704 states, "Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact." The trial court has discretion to exclude expert testimony on the ultimate issue when that testimony is not essential to the jury's understanding of the issue and when the jury can come to a correct conclusion without it.29 {¶ 31} Part of the reason that the estate objected to the testimony was that the children had difficulty laying a proper foundation for the admission of Muth's opinion on the ultimate issue. But ultimately, the trial court excluded the testimony because it felt that the issue was "within the experience of the average juror." Under the facts of this case, we do not hold that this conclusion was so arbitrary, unreasonable, or unconscionable as to connote an abuse of discretion.30 {¶ 32} Further, even if the court's decision to exclude the testimony had been erroneous, we cannot see how the error affected the children's substantial rights, given the amount of evidence presented on legal ethics and conflicts of interest. Therefore, any error would have been harmless.31 We overrule the children's fourth assignment of error. *Page 512 V. Expert Testimony on a Probate Attorney's Standard of Care {¶ 33} In their fifth assignment of error, the children contend that the trial court erred by excluding the testimony of one of their experts, Joseph Wittenberg. He would have testified regarding the standard of care that a probate attorney owed to an elderly client with mental infirmities and the extra precautions needed in advising an elderly person about his will. The children argue that this testimony was relevant to the issue of whether Lindberg had exerted undue influence on Knowlton. This assignment of error is not well taken. {¶ 34} The trial court excluded this testimony under Evid. R. 403, finding that the danger of unfair prejudice outweighed its probative value. We agree. This testimony had minimal relevance, at best, particularly given that another attorney, not Lindberg, had drafted the will and had witnessed Knowlton's signature. Further, the actions that the expert declared should have been taken with an elderly client went far beyond those required by the Code of Professional Responsibility, making the testimony highly prejudicial. Under the circumstances, we cannot hold that the trial court abused its discretion in excluding the testimony.32 We overrule the children's fifth assignment of error. VI. Testator's Hearsay Statements {¶ 35} In their sixth assignment of error, the children contend that the trial court erred in excluding the deceased testator's statements as hearsay. They argue that the statements were admissible under Evid. R. 803(3). This assignment of error is not well taken. {¶ 36} Evid. R. 803(3) sets forth an exception for the general prohibition against the admission of hearsay for "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will." The hearsay statement must point towards the future rather than the past, unless it relates to the declarant's will.33 {¶ 37} Though they argue the matter only generally, the children point to two specific instances during the trial when the trial court excluded testimony. In the first, Knowlton's longtime friend would have testified that Knowlton had *Page 513 told him that Jimmy Grimes, Knowlton's caretaker for many years, was "taken care of." {¶ 38} This hearsay statement points to the past rather than the future. Therefore, they were not admissible unless they related to the execution, revocation, identification, or terms of the will. The trial court found that they did not. We agree. Neither of these witnesses was specifically testifying about the will when the children's counsel asked them about these hearsay statements. Under the circumstances, we cannot hold that the trial court's decision to exclude the statements was an abuse of discretion. {¶ 39} In the second instance the children cite, Valerie Knowlton would have testified that her father had told her that she would receive income from a trust after he died. This statement does point to the future rather than the past and was admissible under the hearing exception in Evid. R. 803(3). But in the context of the entire trial, the exclusion of that statement did not affect the children's substantial rights. Therefore, any error was harmless.34 {¶ 40} The children further argue that "the defendants were allowed, without restriction, to present such evidence," though they do not identify any particular statements. Nevertheless, Evid. R. 804(B)(5) sets forth a separate hearsay exception for a decedent's statements when offered by the decedent's estate. This exception is for the benefit of a decedent's representative to permit the decedent to "speak from the grave" to rebut testimony from an adverse party that was formerly inadmissible.35 This hearsay exception does not apply to the party opposing the decedent.36 Consequently, circumstances could arise in which the estate could admit hearsay statements into evidence but the adverse party could not. We overrule the children's sixth assignment of error. VII. Stricken Testimony {¶ 41} In their seventh assignment of error, the children contend that the trial court erred by admitting the testimony of the estate's witness Sonya Albery, when the estate had failed to properly disclose the subject of her testimony. They also argue that the trial court erred in failing to timely instruct the jury to disregard her testimony when she refused to answer questions on cross-examination. *Page 514 Though we have reservations about what occurred with this witness, we ultimately find that the assignment of error is not well taken. {¶ 42} Albery was one of Knowlton's financial advisors and also a friend. Prior to trial, the estate had disclosed that Albery would testify "concerning her observations of Mr. Knowlton as an independent and intelligent business person during the course of their long personal friendship and during her work with him as his financial advisor, his relationship with the Lindberg family, that his mental acuity remained sharp until the time of his death, that he was not susceptible to undue influence, his estranged relationship with his children, his thoughts relating to the establishment of a charitable foundation and his estate plan." {¶ 43} At trial, the estate attempted to elicit testimony from Albery about an undisclosed dinner conversation with Knowlton on the day he had signed his will. The children, objected because her testimony was hearsay and because the estate had failed to disclose that she would testify about the conversation. The trial court expressed concern that disclosure about her testimony had not been more specific, but stated, "I think it's general enough to allow some testimony." {¶ 44} Considering the hearsay objection, the court limited Albery's testimony. It stated, "I think you can get out * * * his state of mind was such that he did let her know that he executed his will, number one. Details of the will, beyond that, except for rebuttal as it relates to having Valerie in the will, is permissible, but nothing more than that." Albery went on to testify that Knowlton had stated that he had signed a will that day, and that he had not left any money to Valerie, and why. {¶ 45} We have grave reservations about the estate's failure to disclose that Albery would testify about this conversation. Its claim that the children were not "sandbagged" because it had disclosed that Albery would testify about "his estate plan" rings hollow. The purpose of discovery in the civil rules is to prevent unfair surprise, 37 and the estate should have disclosed the substance of that conversation. {¶ 46} Nevertheless, the regulation of discovery lies within the trial court's discretion.38 We need not determine whether the court abused that discretion in this case because the events that occurred next rendered that question moot. *Page 515 {¶ 47} On cross-examination, the children asked Albery if, at a later time, she had discussed with Lindberg Knowlton's inability to handle his own affairs. She stated, "I'm sorry. But I do not have representation in this courtroom for anything that is discussed after 1995 and 1996. Anything that happens after that time, I will not discuss." The children moved to strike her testimony. {¶ 48} Since it was the end of the day, the court excused the jury. A heated discussion ensued. Albery indicated that the estate's counsel had told her that she would not have to testify about matters that had occurred outside of 1995 and 1996. She stated that her refusal to testify was not based on her Fifth Amendment privilege against self-incrimination, but on the advice of counsel for her employer. The children specifically asked on several occasions that the court strike her testimony in its entirety. {¶ 49} The court took the issue under advisement and adjourned for the day. The following morning, the court heard more argument. It told the jury that "there are legal questions that haven't been resolved and so Ms. Sonya Albery has been excused for the moment and we'll let you know in due course what the situation is." Then the trial continued. {¶ 50} A few days later, the trial court instructed the jury, "I just want to bring to the attention of the jury that based on legal issues, the witness, Sonya Albery, who was here on Monday, will not be back for legal reasons and you are instructed to disregard and strike from your mind and not consider in any respect her testimony." The children did not object in any way. {¶ 51} We find this turn of events astounding. Counsel certainly should not have told the witness that she would not have to testify about events that had occurred after 1995 and 1996. Beyond that, we have never seen a witness blatantly refuse to testify for any reason other than the assertion of the privilege against self-incrimination, which was not involved here. If Albery was asserting another privilege, the record is not clear what privilege it was or how it applied, and the issue should have been raised long before she got to the witness stand. The trial court would have been justified in ordering her to testify and finding her in contempt if she did not. {¶ 52} Nevertheless, the children ultimately got the relief that they sought. If they felt that Albery's testimony was unfairly prejudicial and tainted the proceedings, they could have moved for a mistrial, but they did not. They repeatedly asked that the court strike Albery's testimony in its entirety, which is what the trial court eventually did. It instructed the jury to disregard her testimony, and we must presume that the jury followed that instruction.39 We do not believe *Page 516 that the timing unduly prejudiced the children. The trial court has broad discretion to control the proceedings before it, 40 and we do not hold in this instance that the trial court abused its discretion. We overrule the children's seventh assignment of error. VIII. Reliability of Handwriting Expert's Testimony {¶ 53} In their eighth assignment of error, the children contend that the trial court erred in failing to strike the testimony of the estate's handwriting expert, Mary Kelly. They argue that she used "known samples" provided for her by the defense to compare to the signature on the will instead of using independently verified "known signatures." This assignment of error is not well taken. {¶ 54} Evid. R. 702(C) provides that a witness may testify as an expert if "[t]he witness' testimony is based on reliable scientific, technical, or other specialized information." The court must act as a "gatekeeper" to ensure that the proffered scientific, technical, or other specialized information is sufficiently reliable.41 {¶ 55} Knowledge based on unreliable techniques or principles cannot, as a matter of law, assist the trier of fact to understand the evidence or to determine a fact in issue.42 Whether the expert's opinion is admissible depends on whether the principles and methods the expert employed to reach his or her opinion were reliable, not on whether his or her conclusions are correct.43 {¶ 56} Nevertheless, once the testimony meets the reliability threshold, the trier of fact determines the weight to be given to expert testimony. Any weakness in its factual underpinnings goes to its weight and credibility, rather than to its admissibility.44 {¶ 57} Kelly, an undisputed expert with many years' experience, testified fully about her methods. She stated that she had compared the disputed *Page 517 signatures with "known signatures," which was the standard procedure for verifying signatures. She had obtained the documents that contained the "known signatures" from a paralegal at the Taft firm who was familiar with the case and with Knowlton's signature. Kelly examined numerous authenticated documents and stated that it was acceptable to assume the authenticity of the known documents. {¶ 58} Our review of the record shows that Kelly's methods were sufficiently reliable to meet the admissibility threshold. Any weakness in her methods went to her testimony's weight and credibility, not to its admissibility. Therefore, the trial court did not err in admitting her testimony into evidence, and we overrule the children's eighth assignment of error. IX. Hypothetical Questions {¶ 59} In their ninth assignment of error, the children contend that the trial court erred in failing to strike the testimony of the estate's expert Geoffrey Stern. They argue that Stern's opinion was based upon incorrect hypothetical assumptions that had no evidentiary support. This assignment of error is not well taken. {¶ 60} Under Evid. R. 705, an expert may give his or her opinion in response to a hypothetical question. "`The hypothesis upon which an expert witness is asked to state an opinion must be based upon facts within the witness' own personal knowledge or upon facts shown by other evidence.'"45 A hypothetical question is improper when it assumes facts not in evidence. Whether a hypothetical question is proper lies within the trial court's discretion.46 {¶ 61} The hypothetical question in this case asked Stern to assume that both the Brown family, the majority shareholders in the Cincinnati Bengals, and Knowlton, as minority shareholder, had consented to the Taft firm's representing them at the same time, and that their consent was reflected in various documents submitted into evidence. Despite the children's claim to the contrary, all of these facts were in evidence at the trial. {¶ 62} Also during the hypothetical, the estate's counsel had asked Stern to assume that "Mr. Lindberg was a shrewd and capable man, an excellent negotiator, power and strong willed." As the children point out, this was a misstatement, and counsel meant to refer to Knowlton. The jury would not have *Page 518 been misled by the obvious misstatement, and the children were not prejudiced. Under the circumstances, the trial court did not abuse its discretion in allowing the expert's response to the hypothetical question into evidence. We overrule the children's ninth assignment of error. X. Failure to Allow Rebuttal Testimony {¶ 63} In their tenth assignment of error, the children contend that the trial court erred in refusing to allow them to present a rebuttal witness. They argue that the plaintiff, who bears the burden of proof, has a right to present rebuttal testimony. This assignment of error is not well taken. {¶ 64} R.C. 2315.01(A) provides for the order of trial proceedings and allows for rebuttal testimony. But contrary to the children's assertion, it does not grant an absolute right to present rebuttal testimony. It merely describes the regular order in which the parties present evidence and argument. The decision whether to admit rebuttal testimony lies within the trial court's discretion.47 {¶ 65} The children wanted to call Scott Greenwood, who was a partner at Taft during the time in question. They wanted to have him rebut testimony by Lindberg and other estate witnesses that Taft's managing partner did not have much authority. But at the time, Greenwood was out of the country, and the children wanted to continue the trial for his testimony, even though they described him as a "10-minute witness." The trial court stated, "We're not going to hold it over to Monday for another witness." {¶ 66} Rebuttal testimony should relate to matters that are first addressed in an opponent's case-in-chief.48 Lindberg had testified about his role as managing partner in the children's case-in-chief when he was called on cross-examination. Therefore, testimony on that issue would not have been proper rebuttal testimony. {¶ 67} More importantly, as the trial court indicated, they were "getting further and further afield." The testimony had minimal relevance, and the trial court's decision not to continue an already lengthy trial for a "10-minute witness" was not an abuse of discretion. We overrule the children's tenth assignment of error. *Page 519 {¶ 68} In their 11th assignment of error, the children contend that the trial court failed to control the proceedings. They argue that the trial court allowed the estate's counsel to disrupt the proceedings with almost constant objections, improperly commented on evidence and restated questions to witnesses, and inequitably applied the rules of evidence. This assignment of error is not well taken. {¶ 69} The trial court must exercise reasonable control over the presentation of evidence to "(1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment and undue embarrassment."49 Further, the court may interrogate witnesses in an impartial manner.50 Decisions regarding the mode of interrogation of witnesses lie within the trial court's discretion.51 Above all, the trial court must maintain an appearance of impartiality so that litigants believe that they can have a fair trial.52 {¶ 70} We first note that the children did not object to many of the incidents of which they now complain. This failure to object deprived the trial court of the opportunity to take corrective measures, if needed, and waived the error on appeal.53 {¶ 71} Our review of the record shows that the trial court acted impartially and did an admirable job of controlling this extensive trial. The trial court ruled objectively on all evidentiary issues. Though at some points the estate did object excessively, the court overruled many of those objections. In fact, throughout the trial, it overruled as many of the estate objections as it sustained, and it sustained many of the children's objections. When the court asked questions of witnesses, it was usually seeking to clarify an issue. Under the circumstances, we cannot hold that the trial court abused its discretion in its conduct of the trial. We overrule the children's 11th assignment of error. *Page 520 XII. Jury Instructions {¶ 72} In their 12th assignment of error, the children contend that the trial court erred in failing to give two of their proposed jury instructions. They argue that the jury should have been instructed about the presumption of undue influence that arises when an attorney is involved in drafting the will and obtains a beneficial interest. They also argue that the court should have instructed the jury about the norms of behavior set forth in the Code of Professional Responsibility because they were directly relevant to the issue of whether an attorney had exercised undue influence on the testator. This assignment of error is not well taken. {¶ 73} Generally, the trial court should give jury instructions requested by the parties if they are correct statements of law applicable to the case and if reasonable minds could reach the conclusions sought by the instructions.54 But the court has discretion to refuse to give a proposed jury instruction that is redundant or immaterial to the case.55 {¶ 74} The children's proposed jury instruction on the presumption of undue influence as stated inKrischbaum was not applicable to the case. As we stated in discussing the first assignment of error, that presumption did not apply because Lindberg was not a beneficiary. Consequently, the trial court did not err in failing to give that instruction. {¶ 75} As to their proposed instruction on the Code of Professional Responsibility, the record shows that the trial court was going to give its own instruction on the Code of Professional Responsibility. The court need not give an instruction in the precise language requested by its proponent. If the court's instruction correctly states the law pertinent to the issues raised in the case, the court's use of its own instruction is not error.56 The record does not contain the court's actual instruction, and we must presume its regularity.57 {¶ 76} The children stated that if the court would not give their proposed instruction, they did not want any instruction at all on professional responsibility. *Page 521 Therefore, the court did not give an instruction on that issue. Under the "invited error" doctrine, a party may not take advantage of an error that the party invited or induced the court to make.58 Consequently, we overrule the children's 12th assignment of error. XIII. Summary {¶ 77} In sum, we find no merit in the children's arguments. We find no errors by the trial court that caused material prejudice to the children or denied them a fair trial. Consequently, we overrule their 12 assignments of error and affirm the trial court's judgment. Judgment affirmed. HILDEBRANDT, P.J., and WALSH, J., concur. JAMES E. WALSH, J., of the Twelfth Appellate District, sitting by assignment. 1 (1962), 173 Ohio St. 498, 20 O.O.2d 119,184 N.E.2d 200. 2 Id. at 510-511, 20 O.O.2d 119, 184 N.E.2d 200; Millerv. Woodruff (Jan. 17, 1990), 1st Dist. No. C-880694,1990 WL 2329. 3 West, 173 Ohio St. at 511, 20 O.O.2d 119,184 N.E.2d 200. 4 Id. 5 Id. 6 Id. 7 Id. 8 See Redman v. Watch Tower Bible Tract Soc. (1994), 69 Ohio St.3d 98, 101-102, 630 N.E.2d 676. 9 (1991), 58 Ohio St.3d 58, 567 N.E.2d 1291. 10 Id. at 64, 567 N.E.2d 1291. 11 Id. at paragraph one of the syllabus. 12 Id. at paragraph four of the syllabus. 13 Id. at 68-69, 567 N.E.2d 1291. 14 Id. at 69, 567 N.E.2d 1291. See also Redman,69 Ohio St.3d at 101, 630 N.E.2d 676. 15 In re Estate of Goehring, 7th Dist. Nos. 05CO27 and 05CO35, 2007-Ohio-1133, 2007 WL 754745, ¶ 38. 16 R.C. 5812.01(B). 17 See R.C. 2109.01 and 5812.01(C). 18 Krischbaum, 58 Ohio St.3d at 66,567 N.E.2d 1291. 19 West, 173 Ohio St. at 502, 20 O.O.2d 119,184 N.E.2d 200; Goehring, 2007-Ohio-1133, 2007 WL 754745, at ¶ 44. 20 See id. at ¶ 44; Crodian v. Burris (Apr. 13, 1992), 12th Dist. Nos. CA91-04-064 and CA91-05-082,1992 WL 75192. 21 Krischbaum, 58 Ohio St.3d at 66,567 N.E.2d 1291; In re Estate of Adams (Apr. 28, 1995), 6th Dist. No. L-94-024, 1995 WL 244152. 22 See Krischbaum, 58 Ohio St.3d at 66,567 N.E.2d 1291; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,218, 5 OBR 481, 450 N.E.2d 1140; Adams, 6th Dist. No. L-94-024, 1995 WL 244152. 23 Crodian, 12th Dist. Nos. CA91-04-064 and CA91-05-082, 1992 WL 75192; DiPietro v. DiPietro (1983), 10 Ohio App.3d 44, 46, 10 OBR 52, 460 N.E.2d 657. 24 Crodian; DiPietro at 46-47, 10 OBR 52,460 N.E.2d 657; Oehlke v. Marks (1964), 2 Ohio App.2d 264,266, 31 O.O.2d 381, 207 N.E.2d 676. 25 Defiance v. Kretz (1991), 60 Ohio St.3d 1, 4,573 N.E.2d 32; State v. O'Hara (June 29, 2001), 1st Dist. Nos. C-000314 and C-000318, 2001 WL 725410. 26 Terry v. Caputo, 115 Ohio St.3d 351,2007-Ohio-5023, 875 N.E.2d 72, ¶ 16; Blair v.McDonagh, 177 Ohio App.3d 262, 2008-Ohio-3698,894 N.E.2d 377, ¶ 28. 27 Evid. R. 611(A). 28 See Marshall v. Scalf, 8th Dist. No. 88708,2007-Ohio-3667, 2007 WL 2052079, ¶ 28-29; Hammoud. v.Cleveland Clinic Found., 8th Dist. No. 84979,2005-Ohio-2617, 2005 WL 1245638, ¶ 20; Simpson v. BakersLocal 57 of Bakery, Confectionery Tobacco WorkersInternatl. Union (Nov. 2, 2001), 1st Dist. Nos. C-000691 and C-010008, 2001 WL 1346724. 29 Bostic v. Connor (1988), 37 Ohio St.3d 144,524 N.E.2d 881, paragraph three of the syllabus; State v.Campbell (Mar. 15, 2002), 1st Dist. Nos. C-010567 and C-010596, 2002 WL 398029. 30 Bostic, 37 Ohio St.3d at 148-149,524 N.E.2d 881; Blakemore, 5 Ohio St.3d at 218, 5 OBR 481,450 N.E.2d 1140. 31 See O'Brien v. Angley (1980),63 Ohio St.2d 159, 164, 17 O.O.3d 98, 407 N.E.2d 490; Hofmeier v.Cincinnati Inst, of Plastic Reconstructive Surgery,Inc. (Jan. 18, 2002), 1st Dist. No. C-000274,2002 WL 63432, ¶ 13. 32 See Krischbaum, 58 Ohio St.3d at 66,567 N.E.2d 1291. 33 State v. Apanovitch (1987), 33 Ohio St.3d 19,21, 514 N.E.2d 394; State v. Fort (May 10, 1990), 8th Dist. No. 56922, 1990 WL 61716. 34 O'Brien, 63 Ohio St.2d at 164, 17 O.O.3d 98,407 N.E.2d 490; Hofmeier, 2002 WL 63432, at ¶ 13. 35 Brooks v. Bell (Apr. 10, 1998), 1st Dist. No. C-970548, 1998 WL 165024; Testa v. Roberts (1988),44 Ohio App.3d 161, 167, 542 N.E.2d 654. 36 Hamilton v. Hector (1997), 117 Ohio App.3d 816,818-819, 691 N.E.2d 745. 37 Shumaker v. Oliver B. Cannon Sons, Inc. (1986), 28 Ohio St.3d 367, 370, 28 OBR 429, 504 N.E.2d 44;Brokamp v. Mercy Hosp. (1999), 132 Ohio App.3d 850,860, 726 N.E.2d 594. 38 State ex rel. Mason v. Burnside,117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, ¶ 11; Brokamp at 860, 726 N.E.2d 594. 39 Pang v. Minch (1990), 53 Ohio St.3d 186,559 N.E.2d 1313, paragraph four of the syllabus; Cincinnati v.Banks (2001), 143 Ohio App.3d 272, 289, 757 N.E.2d 1205. 40 State ex rel. Butler v. Demis (1981),66 Ohio St.2d 123, 128, 20 O.O.3d 121, 420 N.E.2d 116; State v.Brewster, 1st Dist. Nos. C-030024 and C-030025,2004-Ohio-2993, 2004 WL 1284008, ¶ 70. 41 Valentine v. Conrad, 110 Ohio St.3d 42,2006-Ohio-3561, 850 N.E.2d 683, ¶ 17; State v.Rangel (2000), 140 Ohio App.3d 291, 295, 747 N.E.2d 291. 42 Miller v. Bike Athletic Co. (1998),80 Ohio St.3d 607, 614, 687 N.E.2d 735; Campbell, 2002-Ohio-1143, 2002 WL 398029. 43 Valentine at ¶ 16; Campbell,2002 WL 398029. 44 Seminatore v. Climaco, Climaco, Lefkowitz Garofoli Co., L.P.A. (Dec. 7, 2000), 8th Dist. No. 76658,2000 WL 1847565; Rangel, 140 Ohio App.3d at 295-296,747 N.E.2d 291. 45 Davis v. Excel Extrusions (1996),112 Ohio App.3d 425, 427, 679 N.E.2d 14, quoting Burens v. Indus.Comm. (1955), 162 Ohio St. 549, 55 O.O. 436,124 N.E.2d 724, paragraph one of the syllabus. 46 Blake v. Fligiel (Dec. 3, 1998), 8th Dist. No. 73329, 1998 WL 842081; State v. Minor (1988),47 Ohio App.3d 22, 26, 546 N.E.2d 1343. 47 Bowden v. Annenberg, 1st Dist. No. C-040499,2005-Ohio-6515, 2005 WL 3338935, ¶ 57; Seaford v.Norfolk S. Ry. Co., 159 Ohio App.3d 374, 2004-Ohio-6849,824 N.E.2d 94, ¶ 48, reversed on other grounds,106 Ohio St.3d 430, 2005-Ohio-5407, 835 N.E.2d 717. 48 Phung v. Waste Mgt., Inc. (1994),71 Ohio St.3d 408, 410, 644 N.E.2d 286; Bowden at ¶ 57. 49 Evid. R. 611(A). 50 Evid. R. 614(B); Vermeer of S. Ohio, Inc. v. ArgoConstr. Co., Inc. (2001), 144 Ohio App.3d 271, 275,760 N.E.2d 1. 51 Mentor-on-the-Lake v. Giffin (1995),105 Ohio App.3d 441, 448, 664 N.E.2d 557; State v. Davis (1992),79 Ohio App.3d 450, 453-454, 607 N.E.2d 543. 52 Mentor-on-the-Lake at 449, 664 N.E.2d 557. 53 In re Disqualification of Solovan,100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 7;Mentor-on-the-Lake at 448, 664 N.E.2d 557. 54 Murphy v. Carrollton Mfg. Co. (1991),61 Ohio St.3d 585, 591, 575 N.E.2d 828; Gates v. Owens-CorningFiberglas Corp. (Oct. 3, 1997), 1st Dist. Nos. C-960369 and C-960416, 1997 WL 610627. 55 Bostic, 37 Ohio St.3d 144, 524 N.E.2d 881, at paragraph two of the syllabus; Gates. 56 Gates; Atkinson v. Internatl. Technegroup,Inc. (1995), 106 Ohio App.3d 349, 365, 666 N.E.2d 257. 57 See Knapp v. Edwards Laboratories (1980),61 Ohio St.2d 197, 199, 15 O.O.3d 218, 400 N.E.2d 384; FirstarBank, N.A. v. First Serv. Title Agency, Inc., 1st Dist. No. C-030641, 2004-Ohio-4509, 2004 WL 1906851, ¶ 6. 58 Hal Artz Lincoln-Mercury, Inc. v. Ford MotorCo. (1986), 28 Ohio St.3d 20, 28 OBR 83, 502 N.E.2d 590, paragraph one of the syllabus; Blair,177 Ohio App.3d 262, 2008-Ohio-3698, 894 N.E.2d 377, at ¶ 39.

2016-07-06 06:42:04.534315+00

Patton

Plaintiff-appellant, Evelyn Combs, appeals from the trial court's granting the motion for summary judgment of defendant-appellee, First National Supermarkets, Inc. It is undisputed that on March 1, 1993, appellant slipped and fell on a clear liquid on the floor of the main aisle of a Finast grocery store located in Cleveland, Ohio, injuring her hip. The main aisle is at right angles to the cash registers and the majority of the aisles. A witness, Thomas Dinger, testified during deposition that he saw appellant fall. Dinger also stated that he noticed a cup lying on its side about ten to fifteen feet from the liquid on the floor. The liquid was clear and difficult to see. William Maher, Finast's assistant store manager, stated during deposition that he inspected the entire store for spills every hour on March 1, 1993. Maher testified that the last time he inspected the main aisle before the appellant fell *Page 29 was most likely around 4:00 p.m. Maher also noted from the accident report that appellant fell at approximately 4:15 p.m. Richard Crawford, a shopper at Finast on March 1, 1993, stated the following in his affidavit, which was attached to appellant's motion in opposition to Finast's motion for summary judgment: "4. Sometime after I arrived I saw a puddle of what looked like a clear liquid closer to the end of the main aisle, not far from the checkout counters. "5. I continued shopping and sometime later I became aware that a lady had slipped and fell on the same puddle that I saw earlier. "6. I believe that the liquid on the floor was there for about 15 or 20 minutes from the time I first saw it until the time the lady had her accident and fell." Finast filed a motion to strike this affidavit with the trial court based on Civ.R. 26(E) and 56(E). After the trial court granted Finast's motion for summary judgment, the trial court ruled Finast's motion to strike as moot. Appellant's sole assignment of error states: "The trial court erred in granting summary judgment as there exists a genuine issue of material fact as to whether defendant-appellee had constructive notice of the hazard reasonable to justify the inference that the failure to remove the hazard or warn against it was attributable to negligence." Appellant maintains that the trial court erred when it granted Finast's motion for summary judgment because a genuine issue of material fact exists as to whether Finast had constructive notice of the hazard and whether the failure to remove the hazard therefore constituted negligence. Specifically, appellant asserts that she presented evidence which showed that Finast had constructive notice that the liquid was on the floor, and that therefore summary judgment should not have been granted. The law in the state of Ohio is clear that in order for a plaintiff to recover damages from a slip and fall accident as a business invitee, the following must be established: "1. That the defendant through its officers or employees was responsible for the hazard complained of; or "2. That at least one of such persons had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly; or "3. That such danger had existed for a sufficient length of time reasonably to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care." Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584,589, 26 O.O. 161, 163, 49 N.E.2d 925, 928. *Page 30 Moreover, Anaple v. Std. Oil Co. (1955), 162 Ohio St. 537, 55 O.O. 424, 124 N.E.2d 128, paragraph one of the syllabus, states that in a case like this the plaintiff must prove the following: "1. That the nature, size, extent and location of such grease spot involved a potential hazard to customers, sufficient to justify a reasonable conclusion that the duty of ordinary care, which the operator of such service station owes to his customers, would require such operator to prevent or remove such a grease spot or to warn his customers about it, and "2. (a) That such sufficient potential hazard was created by some negligent act of the operator of the service station or his employees, or "(b) That such operator or his employees had, or should in the exercise of ordinary care have had, notice of that potential hazard for a sufficient time to enable them in the exercise of ordinary care to remove it or to warn customers about it." In the present case, the issue is whether a fifteen-to-twenty-minute period in which clear liquid lies on a floor is sufficient to allow an inference that the store had constructive notice of the spill. The standard for determining sufficient time to enable the exercise of ordinary care requires evidence of how long the hazard existed. Id. at 541, 55 O.O. at 426, 124 N.E.2d at 130. This court has consistently followedAnaple and held that evidence of how long the hazard existed is mandatory in establishing a duty to exercise ordinary care.Powers v. First Natl. Supermarkets (June 12, 1991), Cuyahoga App. No. 61005, unreported, 1991 WL 106060. It is axiomatic that a motion for summary judgment will be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment will not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267. Moreover, upon motion for summary judgment pursuant to Civ.R. 56, the burden of establishing that material facts are not in dispute and that no genuine issue of fact exists is on the party moving for summary judgment. Harless v. Willis Day WarehousingCo. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74,375 N.E.2d 46, 47-48. However, in that Civ.R. 56(E) requires that a party set forth specific facts showing that there is a genuine issue for trial, a party must do so if *Page 31 he is to avoid summary judgment. Van Fossen v. Babcock WilcoxCo. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, at paragraph seven of the syllabus. Viewing the underlying facts in a light most favorable to the appellant we conclude there exists a genuine issue of material fact. We believe that appellant has produced evidence which showed the length of time the spill was on the main aisle. Therefore, the appellant has satisfied the tests set forth inJohnson and Anaple, supra. We hold that, with respect to the facts in this case, the issue of whether a spill on the main aisle of a grocery food store for fifteen minutes constitutes constructive notice is a question of fact for a jury. See, also,Cohen v. Kroger (1982), 8 Ohio App.3d 21, 22, 8 OBR 22, 23,455 N.E.2d 1013, 1014-1015. Accordingly, appellant's sole assignment of error is sustained. Judgment accordingly. MATIA and O'DONNELL, JJ., concur.

2016-07-06 06:42:04.801576+00

Fain

OPINION {¶ 1} The Appellant in this case, R. W. J., was adjudicated a delinquent child after he attempted to commit arson by starting a fire in a trash can at Roosevelt Middle School. In an entry filed on September 21, 2001, the juvenile court committed R. W. J. to the Ohio Department of Youth Services (DYS) for a period of six months. The court then suspended the sentence and placed him on indefinite probation. As part of the probation, R. W. J. was placed in a residential program at West Central Juvenile Rehabilitation Facility (WCJRF). R. W. J. successfully completed the WCJRF program and was released to his parents' custody in August, 2001. However, his probation was also continued. {¶ 2} Subsequently, R. W. J. violated probation by running away from home in July, 2002. After serving a short amount of time in detention, he was placed on electronic monitoring, at his parents' home. Ultimately, the court revoked R. W. J.'s probation because he failed to obey the rules for electronic monitoring, and also failed to pay fines that had been imposed. R. W. J. was then committed to the custody of DYS for an indefinite term with a minimum period of six months and a maximum period not to exceed the age of 21. {¶ 3} R. W. J. appeals from the order of commitment, raising the following assignment of error: {¶ 4} It is error for the Juvenile [Court], having imposed a sentence on a delinquent juvenile and suspended that sentence, to revisit the sentencing upon the occasion of a probation violation by the juvenile to impose a new and more severe sentence. {¶ 5} After considering the record and the applicable law, we find the assignment of error to be without merit. {¶ 6} In contending that the trial court erred, R. W. J. points out that the court originally imposed only a six-month sentence, but then later changed the sentence to six months minimum, with a maximum commitment until age 21. This was a potential increase of about five and a half years, because R. W. J. was 15 and a half years old when his probation was revoked. R. W. J. says this was an improper increase underState v. Draper (1991), 60 Ohio St.3d 81, which restricts enhancement of sentences to cases where probation is granted pursuant to R.C. 2929.51(A) and R.C. 2951.02. Because probation in the present case was not granted under these statutes, R. W. J. claims that the judgment of the trial court is was erroneous and should be reversed. *Page 54 {¶ 7} In response, the State argues that this matter is moot, because R. W. J. was released from DYS on March 23, 2003. The State does agree that the trial court could not properly impose a new and more severe sentence. However, the State argues that this did not happen in the present case, because there were no differences between the original sentence and the sentence that was imposed after the probation violation. {¶ 8} Since the appeal must be dismissed if it is moot, we will consider that issue first. In the present case, R. W. J. does not challenge the delinquency adjudication; instead, he contests only the sentence that was imposed. Normally, this would moot the appeal, because we would not be able to order any relief. See, e.g., State v. Henson, Champaign App. No. 2002CA21, 2003-Ohio-4426, ¶ 9. However, we are unable to determine if this is the case, because we have no record of any order relating to the release. While we accept the State's representation that R. W. J. was released from DYS, we cannot tell if any conditions have been imposed, the violation of which might cause R. W. J. to be returned to the institution. See State v. Cochran (June 1, 2001), Montgomery App. No. 18424, 2001 WL 585605, *1 (holding that an appeal is not moot where a sentence is completed, if the defendant is subject to post-release control). Because the record fails to reflect the absence of release conditions that could affect R. W. J., the appeal is not moot. {¶ 9} As for the merits of the appeal, R. W. J. claims that the court improperly increased his sentence from the six-month term originally imposed. As noted, the State agrees that the court could not properly increase the sentence, but contends that no enhancement occurred. After reviewing the record, we conclude that the sentence was altered, but we do not agree that the court erred by changing its order. {¶ 10} In this case, the trial court filed several dispositional orders. The first was filed on September 5, 2001. At that time, the court ordered that R. W. J. be committed to the department of youth services "for a minimum of six months, suspended." The court also "continued" R. W. J. on probation, even though no prior order of probation had been filed. Neither side appealed from that order. {¶ 11} A second dispositional order was filed on September 21, 2001. In this order, the court committed R. W. J. "to the custody of the Ohio Department of Youth Services for a term of six months." The order also suspended the commitment and placed R. W. J. on indefinite probation with the court, subject to various terms and conditions. Again, neither R. W. J. nor the State appealed. {¶ 12} After the probation violations, the trial court filed another dispositional order, on November 5, 2002, committing R. W. J. "to the legal custody of the Department of Youth Services for institutionalization for an indefinite term consisting of a minimum period of six months and maximum period not to exceed *Page 55 the youth's attainment of the age of twenty-one (21) years." This appeal is from that order. {¶ 13} The first two orders are somewhat conflicting. One specifies a "minimum" term, but does not mention a maximum term, leaving the court's intent in doubt. However, the second order removes any doubt as to intent, by imposing only a six-month term. The final order conflicts with the second order, and possibly with the first, by specifying both a minimum and maximum term of commitment. As a result, R. W. J. is correct when he says that the sentence was increased. {¶ 14} Nonetheless, after reviewing the applicable statute, we find no error in the increase or change in sentence. At the time of the original dispositional order, R.C. 2151.355(A) provided, in pertinent part, that: {¶ 15} "[i]f a child is adjudicated a delinquent child, the court may make any of the following orders of disposition: {¶ 16} "* * * {¶ 17} "(2) Place the child on probation under any conditions that the court prescribes. {¶ 18} "* * * {¶ 19} "(4) If the child is adjudicated a delinquent child for committing an act that would be a felony of the third, fourth, or fifth degree if committed by an adult or for violating division (A) of section2923.211 of the Revised Code, commit the child to the legal custody of the department of youth services for institutionalization for an indefinite term consisting of a minimum period of six months and a maximum period not to exceed the child's attainment of twenty-one years of age * * *." {¶ 20} R. W. J.'s offense was an attempt to commit arson, which, under the circumstances of this case, would have been a fifth-degree felony, if committed by an adult. See R.C. 2909.03(A)(3) and R.C.2923.02(E). The trial court had the ability to order probation under R.C. 2151.355(A), and properly did so. However, once the court decided to commit R. W. J. to DYS, it was required to comply with R.C. 2151.355(A)(4), which mandates an indefinite term of six months as a minimum and a maximum term not to exceed age 21. Because the trial court had no authority to impose a definite sentence of six months, its order purporting to do so was a nullity, and was, therefore, void. Specifically, "`[a]ny attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.'" In re Vaughters (Nov. 1, 2001), Cuyahoga App. No. 79056, 2001 WL 1352661, *1, quoting from State v. Beasely (1984),14 Ohio St.3d 74, 75. See, also, In *Page 56 re Ingram, Cuyahoga App. No. 79808,2002-Ohio-806, ¶ 6, and In re Hall (Apr. 1, 1991), Preble App. No. CA90-11-021, 1991 WL 44356, *2. {¶ 21} Accordingly, to the extent the original orders purported to impose a definite term of six months, they were nullities, because imposition of a definite sentence was not authorized by statute. This also makes any failure to appeal from these orders immaterial. And, since the trial court's final dispositional order correctly imposed the indefinite term mandated by R.C. 2151.355(A)(4), it is not erroneous, and should not be reversed. For these reasons, we conclude that the assignment of error is without merit, although not for the reasons the State has suggested. {¶ 22} R. W. J.'s sole assignment of error is overruled. The judgment of the trial court is affirmed. GRADY, J., and YOUNG, J., concur. *Page 57

2016-07-06 06:42:04.842094+00

French

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 556 {¶ 1} Defendant-appellant, Benjamin Haney, appeals from a judgment of conviction and sentence entered by the Athens County Court of Common Pleas pursuant to his plea of guilty to two counts of aggravated robbery, with gun specifications, and one count of failing to comply with an order of a police officer. For the following reasons, we affirm in part and reverse in part and remand the matter to the trial court. I. The Procedural History and Facts {¶ 2} On February 26, 2007, an Athens County Grand Jury indicted appellant on two counts of aggravated robbery, in violation of R.C. 2911.01(A)(1), felonies of the first degree, with gun specifications, and one count of failing to comply with an order of a police officer, in violation of R.C. 2921.331(B), a felony of the third degree. Appellant initially entered a plea of not guilty by reason of insanity pursuant to R.C. 2943.03(E) and Crim. R. 11(A). The trial court ordered appellant to undergo a forensic psychiatric examination to determine his mental condition at the time of the commission of the offense. After this first evaluation was completed, appellant filed a notice of intent to obtain a second evaluation and a request for an indigency determination. After conducting a hearing, the court ordered a second evaluation and found appellant to be indigent. {¶ 3} At a change-of-plea hearing on September 25, 2007, appellant pleaded guilty to the offenses set forth in the indictment. The state gave a statement of the facts, as follows: As far as the statement of facts, on February 13, 2007, * * * the defendant initially held up, * * * went to the, was traveling in his vehicle, wrecked it, and * * * crashed it. He went to the Gillogly, he was at the Gillogly residence and Mr. Casto came over to the residence to assist the Gilloglys, who had seen the defendant there. While Mr. Casto was there, he held Mr., he held a gun on Mr. Casto and stole his vehicle. This occurred in Meigs County. He proceed * * * and that was on 689. He proceeded on * * * with Mr. Casto's vehicle until he wrecked near the Albany fairgrounds in Athens County. At that time Mrs. Lonas, went to provide assistance to the defendant, thinking that he had wrecked and would need some assistance. Instead at that time, he then held a gun to Mrs. Lonas, chambering a round, and stole her 2001 silver Monte Carlo. After stealing the Monte Carlo, he drove off at a high rate of speed. A number of deputies were in * * * pursuit. And eventually Deputy Sheridan was able, the defendant actually swerved off the road and * * * came to a stop and *Page 558 Deputy Sheridan was able to approach the vehicle or keep him at bay until other deputies could * * * respond. During the time he was able to respond to commands, * * * Sergeant Childs indicated that he had asked him to unlock the door, the defendant was able to do that. And he was able to speak and to walk and had, had the ability to commit all of these crimes, that he has, * * *, had done and which brings him before the Court today. {¶ 4} Pursuant to a plea agreement, the state recommended that appellant be sentenced to a 21-year prison term. After the court ordered a presentence investigation report ("PSI"), it conducted a sentencing hearing, where it adopted the state's recommendation. Specifically, the court sentenced appellant to a seven-year prison term for each count of aggravated robbery, along with a mandatory three-year prison term for each of the gun specifications. The court also sentenced appellant to a one-year prison term for the charge of failure to comply with an order of a police officer. The court ordered all counts to be served consecutive to each other for a total of 21 years. Moreover, the court ordered appellant to pay restitution to the victims, Mr. Casto and Mrs. Lonas, in the amount of $140 and $8,689.00 respectively, and to pay restitution to the victims' insurance companies, State Farm and Western Reserve, in the amount of $4,300 and $1,810.79 respectively. Appellant now appeals. II. Assignments of Error {¶ 5} Appellant presents six assignments of error: Assignment of Error I The trial court erred by ordering Mr. Haney to pay $14,939.79 in restitution without considering Mr. Haney's present and future ability to pay as required by R.C. 2929.19(B)(6). Assignment of Error II Trial counsel provided ineffective assistance, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, for failing to object to the trial court's imposition of $14,939.79 in restitution without considering whether Mr. Haney had the present and future ability to pay. Assignment of Error III The trial court committed plain error and denied Mr. Haney due process of law by imposing $14,939.79 in restitution without considering whether Mr. Haney had the present and future ability to pay the amount. Fifth and Fourteenth Amendments to the United States Constitution; Section 16, Article I of the Ohio Constitution. Assignment of Error IV *Page 559 The trial court erred when it ordered Mr. Haney to pay restitution to the victim's insurance carriers. Assignment of Error V Mr. Haney's indictment was defective as it failed to charge the culpable mental state that was required in order for the State to convict Mr. Haney for aggravated robbery. Fifth and Fourteenth Amendments to the United States Constitution; Section 10, Article I of the Ohio Constitution; Crim. R. 7(B). Assignment of Error VI The trial [sic] erred when it sentenced Mr. Haney to a cumulative prison term of twenty-one years. Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution. III. Sufficiency of the Indictment {¶ 6} We begin our analysis by addressing appellant's fifth assignment of error, in which appellant contends that his indictment was defective because it failed to charge the culpable mental state for the offense of aggravated robbery. Relying on the Supreme Court of Ohio's decision inState v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624,885 N.E.2d 917 ("Colon I"), he contends that his aggravated robbery convictions must be reversed. We disagree. {¶ 7} In Colon I, the Supreme Court of Ohio held: "When an indictment fails to charge a mens rea element of a crime and the defendant fails to raise that defect in the trial court, the defendant has not waived the defect in the indictment." Id. at syllabus. In Colon I, the defendant had been charged with robbery, in violation of R.C. 2911.02(A)(2). His indictment stated that defendant "in attempting or committing a theft offense, as defined in Section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense upon [the victim, the defendant did] inflict, attempt to inflict, or threaten to inflict physical harm on [the victim]." Id. at ¶ 2. The court in ColonI found that the indictment failed to contain a mens rea for the actus reus element stated in subsection (2), i.e., "[i]nflict, attempt to inflict, or threaten to inflict physical harm on another." The court reasoned that because R.C. 2911.02(A)(2) does not specify a particular degree of culpability for the act of "inflict[ing], attempt[ing], to inflict, or threatening] to inflict physical harm" and because the statute does not plainly indicate that strict liability is the mental standard, the catchall culpable mental state of "recklessness" applied. The court concluded that because the mens rea "recklessness" was missing from the indictment, the indictment was defective because it failed to charge an essential element of the offense. Id. at ¶ 19. The court also concluded that the defective indictment resulted in a lack of notice to the defendant of the mens rea required to commit the offense, and that because *Page 560 the defect clearly permeated the entire criminal proceeding, the defect resulted in structural error. Id. at ¶ 32. The Colon I court then reversed the conviction. {¶ 8} On reconsideration, the Supreme Court of Ohio declared that Colon I was prospective and "applies only to those cases pending on the date Colon I was announced." State v. Colon, 119 Ohio St.3d 204,2008-Ohio-3749, 893 N.E.2d 169, ¶ 5 ("Colon II"). The court in Colon II also stated that "the facts that led to our opinion in Colon I are unique[,]" noting that the defective indictment was not the only error that had occurred, but that the defective indictment resulted in several other violations of the defendant's rights. Id. at ¶ 6. Specifically, the court noted the following: (1) there was no evidence to show that the defendant had notice that recklessness was an element of the crime of robbery; (2) there was no evidence that the state argued that the defendant's conduct was reckless; (3) the trial court did not include recklessness as an element of the crime when it instructed the jury; and (4) in closing argument, the prosecuting attorney treated robbery as a strict-liability offense. Id. at ¶ 6. {¶ 9} The court in Colon II went on to conclude that the structural-error analysis for defective indictments is "appropriate only in rare cases * * * in which multiple errors at the trial follow the defective indictment." Id. at ¶ 8. The court then stated, "Seldom will a defective indictment have this effect, and therefore, in most defective indictment cases, the court may analyze the error pursuant to Crim. R. 52(B) plain-error analysis. Consistent with our discussion herein, we emphasize that the syllabus in ColonI is confined to the facts in that case." Id. {¶ 10} As set forth above, appellant was charged with two counts of aggravated robbery under R.C. 2911.01, which states: (A) No person, in attempting or committing a theft offense, as defined in section 2913. 01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following: (1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it. (Emphasis added.) {¶ 11} Appellant argues that in the absence of any statutory language as to the requisite degree of culpability associated with the requirement that the offendereither display the weapon, brandish it, indicate that theoffender possesses it, or use it, the catchall mental state of recklessness should apply. Appellant maintains that the indictment was defective because it failed to include this material element of mens rea and that pursuant to ColonI, his case is laden with structural errors that require us to reverse his conviction. *Page 561 {¶ 12} Recently, the Tenth District Court of Appeals concluded that the holding of Colon I was inapplicable to a conviction for aggravated robbery under R.C. 2911.01(A)(1). See State v. Hill, Franklin App. No. 07AP-889, 2008-Ohio-4257, 2008 WL 3878363. In Hill, the court initially noted that it was "reluctant to expansively construe Colon I's holding to statutes not considered by Colon I, especially since Colon II emphasized that the syllabus in Colon I is confined to the facts in that case." Id. at ¶ 34. The court inHill ultimately concluded that Colon I was inapplicable to aggravated-robbery convictions under R.C. 2911.01(A)(1) based upon its prior opinion in State v.Ferguson, Franklin App. No. 07AP-640, 2008-Ohio-3827,2008 WL 2932005. We adopt the court's reasoning in Ferguson and conclude that Colon I does not require reversal of appellant's aggravated-robbery convictions. {¶ 13} As noted in Ferguson, the Supreme Court of Ohio has previously addressed whether recklessness is an element of robbery under R.C. 2911.02(A)(1).1 SeeState v. Wharf (1999), 86 Ohio St.3d 375,715 N.E.2d 172. In Wharf, the defendant was indicted for aggravated robbery, in violation of R.C. 2911.01(A)(1). The trial court later amended the indictment to robbery, in violation of R.C. 2911.02(A)(1). At trial, the defendant proposed a jury instruction that before the jury could find him guilty of robbery, it must find that he actedrecklessly in having a deadly weapon on or about his person. Id. at 376, 715 N.E.2d 172. The trial court declined to give the proposed jury instruction, and the defendant was convicted. On appeal, the defendant argued that the trial court erred in failing to instruct the jury that "recklessly" was the required mental state for the deadly-weapon element of robbery under R.C. 2911.02(A)(1). The appellate court rejected the defendant's argument and affirmed, but entered an order certifying a conflict with judgments of other courts of appeals. {¶ 14} In Wharf, the Supreme Court of Ohio held that "the General Assembly intended that a theft offense, committed while an offender was in possession or control of a deadly weapon, is robbery and no intent beyond that required for the theft offense must be proven." Id. at 377, 715 N.E.2d 172. Further, the court held that "by employing language making mere possession or control of a deadly weapon, as opposed to actual use or intent to use, a violation, it is clear to us that the General Assembly intended that R.C. 2911.02(A)(1) be a strict liability offense." Id. at 378,715 N.E.2d 172. Thus, the Supreme Court of Ohio has determined that R.C. 2911.02(A)(1) is a strict-liability offense and that the deadly weapon element does not require the mens rea of recklessness. *Page 562 {¶ 15} Here, appellant argues that robbery under R.C. 2911.02(A)(1) is a lesser-included offense of aggravated robbery under R.C. 2911.01(A)(1) and that the additional element under the aggravated-robbery statute, i.e., that the offender display, brandish, use, or indicate that he or she has a weapon, requires the mens rea of recklessness. He relies on dicta in Wharf that arguably suggests that this additional element may distinguish the offenses for purposes of analyzing the requisite criminal intent. See Ferguson,2008-Ohio-3827, 2008 WL 2932005, at ¶ 45, quotingWharf, 86 Ohio St.3d at 379, 715 N.E.2d 172 ("A violation of R.C. 2911.02(A)(1) will also be found if the offender has a deadly weapon on or about his person, or under his control, while fleeing after such offense or attempt. Thus, no use, display, or brandishing of a weapon, or intent to do any of the aforementioned acts, is necessary according to the plain language of the statute"). {¶ 16} We note, however, that other courts have applied the holding in Wharf to aggravated robbery under R.C. 2911.01(A)(1). See Ferguson at ¶ 46, citing State v. Kimble, Mahoning App. No. 06MA190,2008-Ohio-1539, 2008 WL 852074, at ¶ 29 (relying onWharf for the proposition that the only mens rea the state must prove is that required for theft in finding evidence sufficient to prove complicity to commit aggravated robbery under R.C. 2911.01(A)(1)). See also State v. Thompson, Ashland App. No. 08COA018, 2008-Ohio-5332, 2008 WL 4572520, ¶ 31; State v. Peterson, Cuyahoga App. No. 90263,2008-Ohio-4239, 2008 WL 3870695, ¶ 15. {¶ 17} Based on the foregoing, we conclude that the holding in Wharf — that R.C. 2911.02(A)(1) requires no mens rea other than that required for the theft offense — is analogous to R.C. 2911.01(A)(1). Here, appellant was charged with aggravated robbery under R.C. 2911.01(A)(1), and because a violation of that provision requires no intent beyond that required for the theft offense, his indictment was not defective for its failure to include the mens rea of recklessness. Accordingly, we find the holding in ColonI to be inapplicable to appellant's convictions for aggravated robbery under R.C. 2911.01(A)(1). {¶ 18} Nonetheless, even if we found thatColon I applies to this case, we conclude that in light of Colon II, reversal of appellant's conviction is not required. Initially, we note that Colon II is distinguishable because here appellant failed to raise the issue of the defective indictment with the trial court and then later entered a guilty plea to the offenses charged in the indictment, including both counts of aggravated robbery. Generally, a defendant who pleads guilty or no contest waives all nonjurisdictional defects in the proceedings. See Crim. R. 11(B)(1); see also United States v. Broce (1989),488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927; State v.Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167,810 N.E.2d 927, at ¶ 78, quoting Menna v. New York (1975), 423 U.S. 61, 62, *Page 563 96 S.Ct. 241, 46 L.Ed.2d 195, fn. 2. ("`a guilty plea * * * renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established'"). Thus, appellant's guilty plea waived his right to challenge any alleged defect in the indictment. See State v. Davis, Highland App. No. 06CA21, 2007-Ohio-3944, 2007 WL 2216367, ¶ 18, citingStacy v. Van Coren (1969), 18 Ohio St.2d 188, 47 0.0.2d 397, 248 N.E.2d 603; see also State v. Salter, Cuyahoga App. No. 82488, 2003-Ohio-5652, 2003 WL 22413518. His "guilty plea broke the chain of events which preceded it in the criminal process." See Davis at ¶ 18, citingState v. Miller, Meigs App. No. 95CA10, 1996 WL 571488. As we stated in Miller, "By pleading guilty * * *, appellant waived any right in questioning the validity of his indictment on appeal. In effect, appellant induced the prosecution and the court to proceed upon the * * * indictment upon the basis that it was sufficient to charge an offense * * *." Id. {¶ 19} Even if Colon II applies to this case, and appellant did not waive his right to challenge any defect in the indictment, we find that this case is not one of the rare defective-indictment cases that resulted in "multiple errors that are inextricably linked to the flawed indictment such as those that occurred in Colon I." As such, plain-error analysis, pursuant to Crim. R. 52(B), is appropriate. For there to be plain error, there must be a plain or obvious error that "affect[s] `substantial rights,' which the court has interpreted to mean but for the error, `the outcome of the trial clearly would have been otherwise.'"State v. Litreal, 170 Ohio App.3d 670, 2006-Ohio-5416,868 N.E.2d 1018, ¶ 11, quoting State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240. We take notice of plain error with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Gardner, 118 Ohio St.3d 420,2008-Ohio-2787, 889 N.E.2d 995, ¶ 78. {¶ 20} Appellant argues that his mental state was at issue and points to the fact that he received two psychological evaluations. He also notes that defense counsel indicated at the sentencing hearing that appellant was "suicidal" on the day that the crimes were committed. He argues that had he received notice that the state had to prove the mens rea of recklessness, he may not have pleaded guilty. While appellant originally entered pleas of not guilty by reason of insanity, which prompted the psychological evaluations, he later pleaded guilty to the indictment. At the plea hearing, the state provided a statement of the facts, which we set forth previously. Defense counsel took no exception to the facts as given and stated, "I think it is a factual statement that is supported by evidence that could have been brought before the Court." Based on our review of the record, we find no plain error in the proceedings below. Therefore, we overrule appellant's fifth assignment of error. *Page 564 IV. Consideration of the Ability to Pay Restitution {¶ 21} Because appellant's first, second, and third assignments of error raise related arguments, we address them together. In his first assignment of error, appellant argues that the trial court erred in ordering him to pay $14,939.79 in restitution without considering his present and future ability to pay as required by R.C. 2929.19(B)(6). In his second assignment of error, appellant argues that trial counsel provided ineffective assistance because he failed to object to the court's imposition of restitution without considering whether he had the present and future ability to pay. In his third assignment of error, appellant argues that the trial court's failure to comply with R.C. 2929.19(B)(6) constituted plain error. {¶ 22} As a financial sanction, R.C. 2929.18(A)(1) allows the court to order a felony offender to make restitution to the victim of the offender's crime in an amount based on the victim's economic loss. Before ordering an offender to pay a financial sanction such as restitution, R.C. 2929.19(B)(6) requires the court to "consider the offender's present and future ability to pay the amount of the sanction or fine." "[W]hen a trial court has imposed a financial sanction without even a cursory inquiry into the offender's present and future means to pay the amount imposed, the failure to make the requisite inquiry is an abuse of discretion." State v.Henderson, Vinton App. No. 07CA659, 2008-Ohio-2063,2008 WL 1914805, ¶ 5, citing State v. Bemmes, (April 5, 2002) Hamilton App. No. C-010522, 2002 WL 507337, *2. In other words, courts have no discretion to apply an improper analysis or process in deciding an issue even where they may have discretion in the ultimate decision on the merits. Id., citingState v. Nayar, Lawrence App. No. 07CA6,2007-Ohio-6092, 2007 WL 3407169, ¶ 33. {¶ 23} Appellant argues that there is no evidence in the record showing that the trial court considered his present and future ability to pay restitution. We have consistently held that "`"[although preferable for appellate review, a trial court need not explicitly state in its judgment entry that it considered a defendant's ability to pay a financial sanction. Rather, courts look to the totality of the record to see if this requirement has been satisfied."'"State v. Rickett, Adams App. No. 07CA846,2008-Ohio-1637, 2008 WL 901480, ¶ 6, quoting State v.Smith, Ross App. No. 06CA2893, 2007-Ohio-1884,2007 WL 1165822, 1142, quoting State v. Ray, Scioto App. No. 04CA2965, 2006-Ohio-853, 2006 WL 439291 ¶ 26. We have explained that the trial court complies with R.C. 2929.19(B)(6) when the record shows that the court considered a PSI that provides pertinent financial information regarding the offender's ability to pay restitution. Rickett at ¶ 6, citing Smith at ¶ 42. Although the trial court did not explicitly state in its restitution order that it had considered appellant's present and future ability to *Page 565 pay, it did state that it had considered the record and the PSI. On appellant counsel's motion, we ordered supplementation of the record with the PSI, which is properly part of the record on appeal in this case. See State v. Martin (2000), 140 Ohio App.3d 326, 327, 747 N.E.2d 318 ("Although the PSI report is not part of the public record, it is part of the appellate record for our review"). That report contains information regarding appellant's age, education, physical and mental health, military service, and employment history. It also describes his "financial condition," detailing his assets and debts. Therefore, the record supports the conclusion that the trial court sufficiently considered appellant's present and future ability to pay restitution. See Martin at 327-328 (holding that consideration of a PSI that contains information about the offender's age, health, education, and work history satisfies the requirements of R.C. 2929.19(B)(6)). {¶ 24} Furthermore, our review of the record shows that the trial court was fully aware of appellant's financial situation prior to ordering appellant to pay restitution. As appellant correctly points out, the trial court had previously conducted a hearing on whether appellant was indigent for purposes of receiving a psychological evaluation at public expense. While the court ultimately found appellant to be indigent for purposes of receiving the evaluation and then later for purposes of appeal, this finding does not necessarily mean that the trial court failed to consider appellant's present and future ability to pay. SeeRickett at ¶ 7 (noting that the fact that the trial court found defendant to be indigent for purposes of appeal did not necessarily mean that the trial court failed to consider his present and future ability to pay). Appellant was 27 years old at the time of sentencing and if he serves his full 21-year sentence, he will leave prison at age 48. Given his age, the information provided in the PSI, and the information obtained during the indigency hearing, the trial court could reasonably conclude that appellant would have the ability to pay the financial sanction in the future. Therefore, we cannot conclude that appellant's current financial position necessarily means that the trial court did not consider appellant's present and future ability to pay. {¶ 25} Because we conclude that the court committed no error, plain or otherwise, in failing to consider appellant's present and future ability to pay $14,939.79 in restitution, we overrule appellant's first and third assignments of error. {¶ 26} We also reject appellant's second assignment of error. In order to prevail on a claim of ineffective assistance of counsel, appellant must show (1) his counsel's performance was deficient in that it fell below an objective standard of reasonable representation, and (2) the deficient performance prejudiced his defense so as to deprive him of a fair trial. State v. Smith (2000), 89 Ohio St.3d 323, *Page 566 327, 731 N.E.2d 645, citing Strickland v.Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052,80 L.Ed.2d 674; State v. Bradley (1989),42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. To establish prejudice, appellant must show that there exists a reasonable probability that were it not for counsel's errors, the result of the proceeding would have been different.State v. White (1998), 82 Ohio St.3d 16, 23,693 N.E.2d 772; Bradley at paragraph three of the syllabus. When considering whether trial counsel's representation amounts to a deficient performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."Strickland at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Thus, "the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. {¶ 27} Because we conclude that the trial court did not err in failing to consider appellant's present and future ability to pay, appellant fails to demonstrate any deficient performance on the part of trial counsel in failing to object on that basis or any resulting prejudice. Accordingly, we overrule appellant's second assignment of error. V. Restitution to Third Parties {¶ 28} Appellant argues that the trial court committed plain error when it ordered him to pay restitution to State Farm and Western Reserve, the victims' insurance carriers. Specifically, he argues that R.C. 2929.18(A)(1) does not authorize the trial court to award restitution to third parties. The state concedes error on this point, and we agree. {¶ 29} We have previously held that under the current version of R.C. 2929.18(A)(1), "trial courts are no longer permitted to award restitution in criminal cases to third parties, including insurance carriers." State v.Baltzer, Washington App. No. 06CA76, 2007-Ohio-6719,2007 WL 4374407, ¶ 41; see also State v. Smith, Washington App. No. 07CA25, 2008-Ohio-142, 2008 WL 160922, ¶ 4. As we noted in Baltzer, the version of R.C. 2929.18(A)(1) in effect until June 1, 2004, specifically provided for restitution to the victim of the crime or "to `third parties for amounts paid to or on behalf of the victim.'" Id. (quoting former R.C. 2929.18(A)(1)). However, the General Assembly amended R.C. 2929.18(A)(1) to delete the provision allowing trial courts to award restitution to third parties. "In the General Assembly's final analysis of 125 Sub. H.B. 52, it noted that the bill `repeals all of the language that pertains to the restitution order requiring that reimbursement be made to third parties, including governmental agencies or persons other than governmental agencies, for amounts paid to or on behalf of the victim or any survivor of the victim for economic loss * * *.'" State v. Didion,173 Ohio App.3d 130, 2007-Ohio-4494, 877 N.E.2d 725, ¶ 27 (quoting *Page 567 125 Am. Sub. H.B. No. 52). See also State v. Kreischer,109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, ¶ 1 (suggesting that trial courts may no longer award restitution to third parties for payments made to or on behalf of the victim because "the legislature amended R.C. 2929.18 to delete all references to restitution for third parties"). {¶ 30} In light of the state's concession and our holding in Baltzer, we conclude that the trial court committed plain error in ordering appellant to pay restitution to State Farm and Western Reserve. Accordingly, we sustain appellant's fourth assignment of error. VI. Sentencing {¶ 31} In his sixth assignment of error, appellant argues that the trial court erred when it sentenced him to a cumulative prison term of 21 years. He argues that the facts presented during the sentencing hearing do not support any sentence above three-year, concurrent prison terms for each of the aggravated robbery convictions. {¶ 32} Recently, the Supreme Court of Ohio addressed the issue of the proper standard of review when reviewing a trial court's sentencing decision and set forth a two-step process. See State v. Kalish,120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. In this plurality decision, the court determined that an appellate court must first "examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court's decision shall be reviewed under an abuse-of-discretion standard." Id. at ¶ 4. An abuse of discretion is "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, 219,450 N.E.2d 1140. {¶ 33} Trial courts "have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." State v. Foster, 109 Ohio St.3d 1,2006-Ohio-856, 845 N.E.2d 470, ¶ 100. However, in sentencing a felony offender, the sentencing court must still consider the general guidance factors contained in R.C. 2929.11 and R.C. 2929.12. Kalish at ¶ 13; Foster at ¶ 42. As we noted in State v. Ward, Meigs App. No. 07CA9, 2008-Ohio-2222, 2008 WL 1991614, the court must impose a sentence that is reasonably calculated to achieve the two overriding purposes of felony sentencing, i.e., protecting the public from future crime by the offender and others and punishing the offender. Id. at ¶ 19; R.C. 2929.11(A). The court must also consider the factors set forth in R.C. 2929.12(B) and (C) relating to the seriousness of the offender's conduct and those set forth in R.C. 2929.12(D) and (E) relating to the likelihood of the offender's recidivism. Id.; R.C. 2929.12(A). *Page 568 Additionally, the court may consider any other factor that it deems relevant to achieving the principles and purposes of sentencing. Id. {¶ 34} Here, appellant pleaded guilty to two counts of aggravated robbery, in violation of R.C. 2911.01(A)(1), felonies of the first degree, with three-year mandatory gun specifications, and one count of failing to comply with an order of a police officer, in violation of R.C. 2921.331(B), a felony of the third degree. Under R.C. 2929.14, the statutory range for a first-degree felony is three to ten years, and the statutory range for a third-degree felony is one to five years. The court sentenced appellant to a seven-year prison term for each count of aggravated robbery, along with a mandatory three-year prison term for each of the gun specifications. The court also sentenced appellant to a one-year prison term for the charge of failure to comply with an order of a police officer. Thus, the trial court's sentence is within the permissible statutory range. Moreover, our review of the record shows that the trial court considered the principles and purposes of R.C. 2929.11, as well as the "seriousness" and "recidivism" factors under R.C. 2929.12. Accordingly, the sentence is not clearly and convincingly contrary to law. {¶ 35} We must next determine whether the trial court abused its discretion. At the sentencing hearing, the court expressly considered the "very serious" nature of the offenses and incorporated the PSI by reference. The court also considered the victims' impact statements, which detailed the psychological effect the offenses had on both victims. The court noted that the two victims were "good Samaritans" who stopped to assist appellant. The court also noted that during the offense, appellant pointed a loaded weapon at one of the victim's heads and then chambered a round. The court also referred to appellant's claim that at the time he committed these offenses, he was on his way to his ex-girlfriend's house to commit suicide in front of her. The ex-girlfriend was a daycare provider for children. The court also specifically considered appellant's likelihood of recidivism and referred to his prior operation-while-intoxicated conviction. After considering these factors, the court sentenced appellant to the sentence the state originally recommended pursuant to the plea agreement. We find nothing in the record indicating that the court's decision to do so was unreasonable, arbitrary, or unconscionable. Therefore, we overrule appellant's sixth assignment of error. {¶ 36} Based on the foregoing, we affirm in part and reverse in part and remand the case to the trial court for further proceedings consistent with this decision. Judgment affirmed in part and reversed in part, and cause remanded. ABELE, P.J., and McFARLAND, J., concur. *Page 569 JUDITH L. FRENCH, J., of the Tenth District Court of Appeals, sitting by assignment. 1 R.C. 2911.02(A)(1) states: "No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender's person or under the offender's control."

2016-07-06 06:42:04.879777+00

Whitmore

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 134 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 135 {¶ 1} Defendant-appellant, Marie Austin, has appealed from the judgment of the Medina County Court of Common Pleas, Domestic Relations Division, which granted plaintiff-appellee George Austin's motion to terminate spousal support. This court reverses. I {¶ 2} Appellant and appellee were divorced on February 25, 1999. The parties' decree states that appellee would pay spousal support in the amount of $600 per month "until such time as the Wife remarries, [or] cohabitates in a relationship akin to a marriage with a man to whom she is not related by blood or dies." *Page 136 Prior to the final decree being entered, appellant had moved out of the marital residence and was living on her own. At that time, she met a man living in the same apartment complex, David Fischbach, and began a sexual relationship with him. That relationship ended several months later, but the two remained friends. {¶ 3} On April 2, 2001, appellant and Fischbach entered into a partnership agreement, forming a locksmith business. Shortly after starting their business, the two realized they needed more room for the business. As a result, they rented a three-bedroom townhouse together in late April 2001. In October 2002, the two purchased a four-bedroom home together, again to account for the expanding business. The two lived together in the house, maintaining separate bedrooms. Along with the two, Fischbach's mother and another employee of the business live in the home. {¶ 4} On November 15, 2004, appellee filed a motion to terminate his spousal support, alleging that appellant was cohabitating with Fischbach. The matter was heard before a magistrate, who recommended that appellee's support be terminated. Appellant timely objected to the magistrate's decision. The trial court overruled appellant's objections and terminated appellee's support obligation, finding that appellant was cohabitating with an unrelated male. Appellant has timely appealed the trial court's judgment, raising one assignment of error for review. II Assignment of Error The trial court erred and abused its discretion by granting appellee exhusband's motion to terminate spousal support, where its finding that appellant ex-wife "co-habitated," in the legal sense of the term, with an unrelated adult male was against the manifest weight of the evidence. {¶ 5} In her sole assignment of error, appellant has argued that the trial court erred in finding that she was cohabitating. Specifically, appellant has asserted that her living arrangement does not meet the definition used by the parties in their separation agreement. This court agrees. {¶ 6} The question of what constitutes cohabitation must be determined on a case-by-case basis.Dial v. Dial (1993), 92 Ohio App.3d 513, 514,636 N.E.2d 361. This court will not reverse the lower court's determination regarding cohabitation if it is supported by some competent, credible evidence, nor will we substitute our judgment for that determination. Schrader v. Schrader (Jan. 21, 1998), 9th Dist. No. 2664-M, 1998 WL 46757, at *8, citing Dial, 92 Ohio App.3d at 515, 636 N.E.2d 361. *Page 137 {¶ 7} "Cohabitation," in the sense the term is used in domestic relations, is a term describing a lifestyle, not a housing arrangement. Dickerson v. Dickerson (1993), 87 Ohio App.3d 848, 850, 623 N.E.2d 237. Without a showing of financial support, merely living with an unrelated member of the opposite sex is insufficient, in and of itself, to permit termination of spousal support. Thomas v. Thomas (1991), 76 Ohio App.3d 482, 485, 602 N.E.2d 385. Moreover, the existence or absence of a sexual relationship is not dispositive of the issue of cohabitation. Moell v. Moell (1994),98 Ohio App.3d 748, 752, 649 N.E.2d 880. "Cohabitation * * * usually will be manifested by a man and woman living together in the same household and behaving as would a husband and wife."Fuller v. Fuller (1983), 10 Ohio App.3d 253, 254,10 OBR 366, 461 N.E.2d 1348. The purpose of a cohabitation clause is to prevent inequity in two situations involving spousal support. The first situation occurs when an ex-spouse would receive support from two sources, each of whom is either legally obligated or voluntarily undertakes the duty of total support. The second situation arises when the ex-spouse who is receiving spousal support uses such payments to support a nonrelative member of the opposite sex. (Citations omitted.) Moell, 98 Ohio App.3d at 751-752, 649 N.E.2d 880. Accordingly, the pertinent issue is whether the cohabitant has "assumed obligations equivalent to those arising from a ceremonial marriage." Taylor v. Taylor (1983),11 Ohio App.3d 279, 280, 11 OBR 459, 465 N.E.2d 476. {¶ 8} The Ohio Supreme Court has defined the essential elements of cohabitation as (1) sharing of familial or financial responsibilities and (2) consortium. State v.Williams (1997), 79 Ohio St.3d 459, 683 N.E.2d 1126, paragraph two of the syllabus. Factors that establish the sharing of familial or financial responsibilities include "provisions for shelter, food, clothing, utilities, and/or commingled assets." Id. at 465, 683 N.E.2d 1126. Factors that establish consortium include "mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations." Id. However, in addition to the above factors, "the court may also consider other relevant criteria, including both the behavior and the intent of the parties. Whether the parties have assumed obligations, including support, equivalent to those arising from a ceremonial marriage is a highly persuasive factor."Moell, 98 Ohio App.3d at 752, 649 N.E.2d 880. {¶ 9} Initially, we note that the parties dispute whether the provision contained in their divorce decree is more or less stringent than the factors contained inWilliams. Specifically, appellant has asserted that the parties' use of the language "akin to marriage" is more stringent than the definitions contained in our precedent. We agree. *Page 138 {¶ 10} This court has previously determined that the parties' choice of language impacts the review performed by this court. See Coe v. Coe, 9th Dist. No. 03CA0104-M, 2004-Ohio-3845, 2004 WL 1620787, at ¶ 6 (finding that the parties' separation agreement had chosen to use the definition of cohabitation adopted by the Ohio Supreme Court and using that definition). In contrast to the parties inCoe, the parties herein chose to define cohabitation as living with an unrelated male in a relationship "akin to a marriage." Because the parties voluntarily entered into the separation agreement, we must give effect to the language they chose to employ. "The purpose of contract construction is to effectuate the intent of the parties[,]" and that intent "is presumed to reside in the language they chose to employ in the agreement." Kelly v. Med. Life Ins. Co. (1987),31 Ohio St.3d 130, 132, 31 OBR 289, 509 N.E.2d 411. {¶ 11} "Akin" is defined as "essentially similar, related, or compatible." Webster's New Collegiate Dictionary (1980) 28. Appellee has proposed that the choice of the word "akin" greatly expands on the definition of "marriage," effectively eliminating the need for any type of intimate relationship. We cannot agree with that interpretation. Marriage has been said to grant both "a personal as well as a legal right to each other's [conjugal] society." See White v.Buchwalter (1947), 49 Ohio Law Abs. 589, 75 N.E.2d 604. Appellee's definition seeks to remove any requirement of a level of sexual intimacy and effectively seeks to replace "marriage" with "friendship." The parties, however, chose to define cohabitation as a relationship similar to a marriage. As such, while consummation of a sexual relationship through sexual intercourse is not mandatory if a legal marriage ceremony has occurred, such sexual intimacy or its equivalent is needed in the absence of such a ceremony to support a finding that appellant is living in a relationship similar to a marriage. In other words, we find that some level of sexual intimacy and contact must be demonstrated in this case due to the parties' choice of the term "marriage." To accept appellee's proposed definition would abrogate any distinction between roommates sharing expenses and two persons living in a relationship "akin to a marriage." {¶ 12} It is undisputed that appellant is living with an unrelated adult male, David Fischbach, and has lived with Fischbach since 2001. Fischbach's elderly mother and another man, Lynwood Backwith, also currently live in the house. Both appellant and Fischbach testified that the home was purchased so that the two could continue to run a business partnership together and so that Fischbach's mother could move into the home in order to receive care. Both also testified that Backwith is an employee of the business and resides at the home to aid in receiving calls the business receives at night. {¶ 13} Furthermore, it is undisputed that appellant and Fischbach share financial and familial responsibilities. Along with Backwith, both appellant and *Page 139 Fischbach aid in paying the mortgage and utilities for the home. In addition, the two have commingled their assets. Both Fischbach and appellant appear on the deed to the property. The deed itself is a survivorship deed, awarding the survivor of the two the full property. In addition, all of the individuals living in the home pool money to buy groceries and other household necessities. Accordingly, the trial court had before it competent, credible evidence that demonstrated that the parties share finances. {¶ 14} Appellant, however, has argued that the trial court heard no evidence that would support a finding of consortium. Specifically, appellant has asserted that her living arrangement is nothing more than a business relationship. We agree. {¶ 15} Initially, we note that the parties agree that appellant once had a sexual relationship with Fischbach but that her sexual relationship with him ended prior to their moving in together. Appellee does not dispute that appellant has not been involved in a sexual relationship with Fischbach since prior to living with him. In fact, appellee presented no competent, credible evidence that appellant's living arrangement is anything more than a business relationship. {¶ 16} As noted above, this court may properly consider the intent and behavior of the parties in determining whether the parties' definition of cohabitation has been met. The undisputed facts herein demonstrate that the parties never intended that their living arrangement would be similar to a marriage. They have had only a business relationship since they began living together. Further, another unrelated adult, Backwith, also lives in the home. It is undisputed that Backwith lives in the home because he aids the parties in conducting their business. {¶ 17} On appeal, appellee has argued that the following facts support the trial court's judgment. Appellant cares for Fischbach's elderly mother without compensation, and the parties' finances and assets are commingled. As noted above, there is no dispute that the parties have commingled their assets and finances. However, this fact is irrelevant to a finding of consortium. In fact, as Backwith has also commingled his assets to contribute to household expenses, the sharing of expenses supports a finding that appellant is not living in a relationship akin to a marriage. Furthermore, while appellant cares for Fischbach's elderly mother, it cannot be said that she receives nothing in return for her activities. While appellant does not receive a salary, Fischbach testified unequivocally that he pays more than his percentage of the household expenses. {¶ 18} There is no competent, credible evidence in the record to support the trial court's finding that appellant and Fischbach are living together in a relationship akin to a marriage. Rather, the sole evidence presented is that the *Page 140 two are living under the same roof to facilitate their business relationship. Contrast Synovetz v. Synovetz (Apr. 24, 1996), 9th Dist. No. 95CA006197, 1996 WL 199443. InSynovetz, this court held that the parties were living in a continuous, permanent relationship that was analogous to a marriage. Id. at *2. In Synovetz, however, the parties chose to live together out of personal choice, rather than as a business decision. Furthermore, in Synovetz, the trial court heard testimony from a relative of that appellant that the appellant was engaged to the man she was living with, that it appeared to the relative that the appellant shared a bedroom with this man, and that the appellant and the man were "more than just friends." Id. Therefore, we find that the current factual scenario is distinguishable. {¶ 19} Undoubtedly, there is some overlap between the parties' business relationship and the factors contained in Williams. To be a successful business, the partners must aid one another, cooperate, and have mutual respect for another. As noted above, however, the parties chose to expand upon Williams by requiring a relationship "akin to a marriage." As such, a finding of mutual respect and cooperation is insufficient to warrant terminating support under the definition chosen by the parties. {¶ 20} In addition, appellee has argued that terminating his support obligation is consistent with public policy because appellant is now receiving support from another party. We disagree. {¶ 21} Appellant testified that she could not afford to live in the home unless others contributed to the expenses associated with it. However, the sharing of living expenses in and of itself is insufficient for a finding of cohabitation. Schrader, 1998 WL 46757, supra, at *8. Appellee has introduced no evidence to support any conclusion other than that appellant is sharing living expenses with multiple other individuals — i.e., the sole evidence indicates that she is sharing expenses in a larger home to accommodate her business partnership. {¶ 22} Accordingly, the trial court did not have before it competent, credible evidence that appellant was living in a relationship "akin to a marriage." Therefore, appellant's sole assignment of error has merit. III {¶ 23} Appellant's sole assignment of error is sustained. The judgment of the Medina County Court of Common Pleas, Domestic Relations Division, is reversed and the cause remanded for further proceedings consistent with this opinion. Judgment reversed, and cause remanded. *Page 141 SLABY, P.J., concurs. CARR, J., dissents.