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2016-07-06 06:42:13.678822+00

OPINION {¶ 1} Appellant Monique Newell appeals from the February 10, 2003, Judgment Entry of the Stark County Court of Common Pleas, Family Court Division, which granted permanent custody of appellant's four minor children to the Stark County Department of Jobs and Family Services (hereinafter SCDJFS). Appellee is SCDJFS. STATEMENT OF THE FACTS AND CASE {¶ 2} Appellant is the biological mother of Keyo Lowry (d.o.b. 4-15-96), Peterz Owens, Jr. (d.o.b. 11-2-98), Patreasha Owens (d.o.b. 9-7-99) and Natreasha Owens (d.o.b. 2-5-01). SCDJFS became involved with appellant and her four children in June of 2001. Initially, SCDJFS filed a complaint in the trial court on June 4, 2001, alleging that appellant's four children were dependent children and sought an order placing the children in the temporary custody of SCDJFS. Concurrent with filing the complaint, SCDJFS obtained an ex parte order placing the children into the emergency custody of SCDJFS. {¶ 3} On June 5, 2001, an emergency shelter care hearing was held. At the hearing, appellant stipulated that probable cause existed for the issuance of an order committing the children into the temporary legal custody of SCDJFS and to the issuance of the requested pre-adjudicatory orders. {¶ 4} On July 3, 2001, SCDJFS filed its initial case plan which documented the concerns it had identified and informed the parties of the services it felt were necessary to address or mitigate those concerns. A hearing on the complaint was held on August 17, 2001. Pursuant to stipulation, the trial court found the four children to be dependent. At the dispositional hearing held the same day, the trial court issued an order placing the children in the temporary custody of SCDJFS subject to planning and placement under the terms of the case plan. {¶ 5} On November 29, 2001, the Citizens Review Board held a semi-annual review of the matter. Appellant was present and represented by counsel. After taking testimony, the Review Board recommended that the trial court maintain the children in the temporary custody of SCDJFS. That same day, the trial court approved and adopted the case plan, found that reasonable efforts were made to finalize the permanency planning in effect and ordered that the "status quo" be maintained. {¶ 6} On April 29, 2002, SCDJFS filed a motion to extend temporary custody of the children to SCDJFS. The matter was heard on May 1, 2002, concurrent with a previously scheduled annual review. Appellant was present and was represented by counsel. After taking testimony, the trial court found that SCDJFS had used reasonable efforts to finalize the permanency plan and that there were compelling reasons to preclude a request for permanent custody. The trial court adopted the case plan review packet as filed and maintained the children in the temporary custody of SCDJFS. SCDJFS' request for an extension of temporary custody was set for hearing on July 9, 2002. At the hearing on July 9, 2002, the parties stipulated to an order extending the childrens' temporary custody with SCDJFS through December 4, 2002. {¶ 7} On October 31, 2002, the trial court heard another review of the matter. Appellant was present for this review and was represented by counsel. After taking testimony, the trial court found that despite the fact that SCDJFS had used reasonable efforts to finalize the permanency plan, there were no compelling reasons to preclude a request for permanent custody. The trial court adopted the case plan review packet as filed and maintained the children in the temporary custody of SCDJFS. {¶ 8} On November 1, 2002, SCDJFS filed a motion for permanent custody of appellant's four children. The matter proceeded to a hearing on February 4, 2003. At the conclusion of the hearing with respect to the grounds, the trial court reserved judgment and for the purpose of judicial economy, took testimony with respect to the best interests of the children. {¶ 9} On February 10, 2003, the trial court issued a Judgment Entry terminating appellant's parental rights with respect to the four children. Concurrent with that Judgment Entry, the trial court filed Findings of Fact and Conclusions of Law in support of its judgment. The trial court found that the children should not and cannot be placed with appellant in a reasonable time, that the children had been in the temporary custody of the agency for 12 of the past consecutive 22 months, and that it was in the best interests of the children to be in the permanent custody of SCDJFS. {¶ 10} It is from the February 10, 2003, Judgment Entry that appellant appeals, raising the following assignments of error: {¶ 11} "I. The judgment of the trial court awarding permanent custody of the minor children to the SCDJFS is against the manifest weight of the evidence. {¶ 12} "II. The judgment of the trial court that the best interests of the minor children would be served by granting permanent custody to SCDJFS is against the manifest weight of the evidence. {¶ 13} This case comes to us on the accelerated calendar. Appellate Rule 11.1, which governs accelerated calendar cases, provides, in pertinent part: (E) Determination and judgment on appeal. The appeal will be determined as provided by App.R. 11. 1. It shall be sufficient compliance with App.R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form. The decision may be by judgment entry in which case it will not be published in any form. This appeal shall be considered in accordance with the aforementioned rule. I II {¶ 14} In her assignments of error, appellant argues that the trial court's awarding of permanent custody to SCDJFS was against the manifest weight of the evidence. We disagree. {¶ 15} 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 279,376 N.E.2d 578. {¶ 16} R.C. 2151.414(B)(1) addresses under what circumstances a trial court may grant permanent custody. Such statute provides as follows: {¶ 17} "(B)(1) Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply: {¶ 18} "(a) The child is not abandoned or orphaned or has not 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, 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. {¶ 19} "(b) The child is abandoned. {¶ 20} "(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody. {¶ 21} "(d) 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." {¶ 22} In the case sub judice, the trial court found that the children had been in the temporary custody of SCDJFS for 12 of the past consecutive 22 months, that the children should not and cannot be placed with appellant in a reasonable time and it was in the best interest of the children to be in the permanent custody of SCDJFS. Those findings are alternate findings under R.C. 2151.414(B)(1). (R.C. 2151.414(B)(1)(d) and (a) respectively) Either of those findings, if supported by the evidence, would have been sufficient in and of itself to base a grant of permanent custody pursuant to R.C. 2151.414(B)(1). {¶ 23} Appellant does not appeal the trial court's finding that the children were in the temporary custody of SCDJFS for 12 of the past consecutive 22 months.1 Such a finding is enough to satisfy the requirements of R.C. 2151.414(B)(1). See In re: Whipple Children, Stark App. No. 2002CA00406, 2003-Ohio-1101. However, because the trial court made a finding that the children should not or cannot be placed with appellant in a reasonable time this court shall review that finding. {¶ 24} Revised Code 2151.414(E) sets out the factors relevant to determining whether children should not be placed with a parent at this time or within a reasonable time. Revised Code 2151.414(E) states the following, in pertinent part: {¶ 25} "(E) In determining at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section2151.353 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: {¶ 26} "(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. . . . {¶ 27} "(16) Any other factor the court considers relevant." {¶ 28} In this case, the trial court found that despite reasonable efforts by SCDJFS to reunify appellant with her children, appellant failed to complete her case plan. Upon review, we find that the trial court's finding was not against the manifest weight of the evidence. The following evidence was presented at the permanent custody hearing: {¶ 29} Davida Domer, the SCDJFS social worker assigned to the family, testified on behalf of SCDJFS. Ms. Domer testified that the initial concern on the case plan was housing for appellant. According to Ms. Domer, appellant resides in a one bedroom efficiency apartment in the northeast section of Canton. This residence is government subsidized. Ms. Domer acknowledged that should the four children be returned to appellant's custody, appellant would be eligible for a larger apartment. However, Ms. Domer testified that appellant is not currently employed and she is not currently paying for her housing. {¶ 30} Substance abuse was also a concern on the case plan. Appellant attended and completed Quest. Appellant, with one exception, submitted to all requested urine screens. Each test was negative. On one occasion, SCDJFS received a referral that said appellant was using marijuana again and that the kids were in danger if they were placed back with appellant. Based upon the referral, appellant was asked to submit a urine sample. Appellant did not comply. Appellant did not provide a sample until over a month later. {¶ 31} Ms. Domer testified that the next concern on the case plan involved a lack of parenting skills on behalf of appellant. Ms. Domer testified that although appellant had successfully completed parenting classes, appellant still had problems interacting with her children and setting and maintaining boundaries. As such, it was Ms. Domer's opinion that despite having received instruction, appellant had not obtained sufficient parenting skills to allow her to provide effective parenting to her children. {¶ 32} Ms. Domer next testified that a significant concern on the case plan was for appellant to work with Minority Development in order to insure that she could financially provide for the basic needs of her children. Ms. Domer testified that despite the fact that appellant had no physical or mental disability which inhibited her ability to work, appellant was unemployed. Appellant had exhausted her entitlement to public assistance, had exhausted her entitlement to Ohio Works First and had no identifiable source of income, except for some help from appellant's mother. Ms. Domer felt that should the trial court return the children to her, appellant would not be able to feed, cloth or provide shelter to the children. {¶ 33} The case plan also required appellant to seek a psychological exam and any follow-up treatment recommended. Ms. Domer testified that appellant did obtain a psychological evaluation as the trial court had ordered and that this evaluation contained follow up recommendations for appellant to obtain individual therapy through NOVA and for appellant to be re-evaluated at the end of one year to determine the effect which the intervention had on appellant. Despite that recommendation, appellant obtained no individual therapy and did not obtain a re-evaluation as the trial court had ordered. Ms. Domer testified that appellant had not mitigated the problems identified with respect to this concern on the case plan. {¶ 34} Based upon the foregoing evidence presented at the hearing, we find that the trial court's finding that the children could not be placed with appellant at that time or within a reasonable time was supported by the evidence and not against the manifest weight of the evidence. {¶ 35} Appellant also contends that the trial court erred when it found that permanent custody was in the best interests of the children. In determining the best interest of a child, the trial court is required to consider the factors contained in R.C. 2151.414(D). These factors are as follows: {¶ 36} "(1) the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster care givers and out-of-home providers, and any other person who may significantly affect the child; {¶ 37} "(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; {¶ 38} "(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; {¶ 39} "(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; {¶ 40} "(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child." {¶ 41} In the case sub judice, testimony showed that that the children were placed in SCDJFS approved and licensed foster homes. Keyo (age 6) and Patreasha (age3) were placed together in one foster home and Peterez (age 4) and Natreasha (age 1) were placed together in another foster home. Ms. Domer testified that all children were doing well in their respective homes and each home was willing and able to adopt their respective foster children. {¶ 42} Ms. Domer testified that there were no physical delays with the children. However, Keyo and Peterez were currently in counseling with the Child and Adolescent Service Center for aggressive behavior. Their behavior is improving. At the time of the hearing, Petreasha was being evaluated for personality problems and was having some difficulty with her motor skills. {¶ 43} Testimony showed that Keyo is very bonded with his foster parents but has a very weak bond with appellant. Ms. Domer testified that she was not sure if Keyo trusted appellant even though he says that he loves appellant. Ms. Domer described the relationship between appellant and Keyo as "very strained." Transcript of Proceedings at 52. Ms. Domer testified that the relationship between Peterez and appellant is also strained. Testimony showed that Peterez had a slight or weak bond with appellant. Ms. Domer testified that while there would be some harm in severing Keyo and Peterez's bonds with appellant, the benefits of having a safe, stable adoptive home outweighed the harm. {¶ 44} As to Petreasha, testimony showed that her bond with appellant was very weak. During visits with appellant, Petreasha would be ready to go before the visit was over or would just sit with the SCDJFS social worker. On the other hand, Petreasha is bonded with her foster mother and may have a stronger bond to Ms. Domer, the social worker, than with appellant. Testimony showed that Ms. Domer believed that there would be no psychological harm if Petreasha'a contact with appellant was terminated. {¶ 45} Netreasha is also bonded with her foster mother. And, because she was removed from appellant as a very young baby, she shows no indication that she has any concept that appellant is her mother. {¶ 46} The SCDJFS social worker assigned to the family concluded that it was in the best interests of the children for them to be placed in the permanent custody of SCDJFS. This sentiment was echoed by the children's guardian ad litem. The guardian ad litem noted that the children were doing very well in their placements and that appellant did not seem able to maintain any consistency in her life. Thus, the guardian ad litem recommended that permanent custody be granted to SCDJFS. {¶ 47} We find that the trial court's finding that the best interests of the children would be served by granting permanent custody to the SCDJFS was not against the manifest weight of the evidence. In conclusion, for the foregoing reasons, we find that the trial court's award of permanent custody to SCDJFS was not against the manifest weight of the evidence. {¶ 48} Appellant's first and second assignments of error are overruled. {¶ 49} Accordingly, the judgment of the Stark County Court of Common Pleas, Family Court Division is affirmed. By: Edwards, J., Hoffman, P.J. and Boggins, J. concur. In Re: PC. 1 Ms. Domer, the SCDJFS social worker assigned to the family, testified that appellant's four children had been in the continuous custody of the SCDJFS since June 6, 2001. The children were adjudicated dependent children on August 17, 2001. Thus, the record reveals that the trial court correctly concluded that the children had been in the custody of SCDJFS for twelve or more months of a consecutive twenty-two month period.

2016-07-06 06:42:13.927258+00

This timely appeal arises from an order of the Harrison County Court of Common Pleas granting summary judgment to Appellee in a declaratory judgment action. Appellee filed for declaratory judgment in a dispute with Appellant, his ex-wife, over the disposition of a check which they received from the Clients' Security Fund. For the following reasons, we hold that summary judgment was not appropriate and we reverse and remand this case to the trial court for further proceedings according to law and consistent with this Court's Opinion. When considering a motion for summary judgment, a reviewing court must view the evidence in a light most favorable to the nonmoving party. Stateex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511. Keeping that principle in mind, the record indicates that the parties were married on January 20, 1978. The marriage ended by Decree of Dissolution granted by the Harrison County Court of Common Pleas on February 28, 1989. Appellee alleges that a separation agreement was approved and incorporated into the decree. That separation agreement allegedly released each party from all claims to all property which the other party, ". . .now owns or may hereafter acquire." (3/23/1998 Motion for Summary Judgment, p. 3). Despite this, the parties continued to live together as husband and wife after the dissolution until March of 1992. On June 23, 1989, Appellee was involved in an automobile accident. Attorney Dominic Potts filed a lawsuit against the tortfeasor in the names of both Appellee and Appellant. Appellant's portion of the suit consisted of a claim for loss of consortium. On November 1, 1991, Attorney Potts received a settlement check for $314,600.00 arising out of the automobile accident claim. Apparently, both parties signed releases as part of the settlement, but those releases are not part of the record. Attorney Potts cashed the check on behalf of the parties and deposited it into his own account. Attorney Potts transferred only $30,000.00 of the settlement funds to Appellee and gave nothing to Appellant. The parties filed a claim with the Ohio Clients' Security Fund alleging that Attorney Potts engaged in unethical conduct and committed theft. The Ohio Clients' Security Fund is maintained by the Supreme Court of Ohio to aid in providing some relief to clients and others from losses caused by lawyers who misappropriate funds under their control. Gov.Bar R. VIII(A). On June 23, 1997, the Clients' Security Fund approved the claim and sent a check for $25,000.00 to Appellee made payable to "Ralph and Anna Daugherty." (10/8/97 Complaint, Exh. B). Appellant initially refused to sign a release and subrogation agreement as required by the Clients' Security Fund as a condition of payment from the fund. On October 14, 1997, Appellee filed a Complaint for Interpleader and Declaratory Relief. Appellee requested that the court determine the respective interests of Appellee and Appellant in the $25,000.00 award from the Clients' Security Fund and that it take control of the check and cause this to be deposited into a supervised account. The check was deposited into a supervised account that same day. On October 14, 1997, Appellant filed an answer to the complaint, arguing that she had a partial interest in the $25,000.00 award arising out of her interest in the original $314,600.00 settlement, at least to the extent of her loss of consortium claim. On March 16, 1998, Appellant filed an affidavit with the court which outlined the history of the case and which erroneously listed the date of Appellant's automobile accident as June 28, 1983. On March 23, 1998, Appellee filed his Motion for Summary Judgment. In his motion, he admitted that the automobile accident did not occur until June 28, 1989. However, Appellee argued that any rights that Appellant might have had in the award from the Clients' Security Fund should be terminated by the Decree of Dissolution entered into in February of 1989. Appellee argued that by signing the separation agreement, Appellant gave up all rights to any property Appellee owned on or after February 28, 1989. The only evidentiary material filed as part of Appellee's motion was his own affidavit. On April 6, 1998, Appellant filed her Response to the Motion for Summary Judgment. Appellant attached an amended affidavit which corrected the earlier error as to the date of Appellee's automobile accident. Appellant also stressed that the parties continued to live together as husband and wife after the February 28, 1989, Dissolution Decree. Appellant argued that she should receive part of the $25,000.00 state fund check proportionate to the value of her loss of consortium claim, taking into account the $30,000.00 already received by Appellee. On January 28, 1999, the trial court granted Appellee's Motion for Summary Judgment. The court reasoned that Appellant was barred from claiming any interest in the Clients' Security Fund award due to the language contained within the February 28, 1989, separation agreement. The court held that the separation agreement constituted a waiver by Appellant of all present and future interest in Appellee's property. On February 9, 1999, Appellant filed her timely appeal. An appellate court reviews the trial court's decision to grant summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993),87 Ohio App.3d 704, 711. We apply the same standard used by the trial court as found in Civ.R. 56(C). Peyer v. Ohio Water Serv. Co. (1998),130 Ohio App.3d 426, 431. Civ.R. 56(C) provides that before a court may grant summary judgment, it must determine that: "(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317,327. The movant has the initial burden of informing the trial court of the basis for its motion and must identify the parts of the record that tend to prove that no genuine issue of material facts exists as to the essential elements of the other party's claim. Dresher v. Burt (1996),75 Ohio St.3d 280, 293. Once the initial burden is met, the responding party has a reciprocal burden to place into evidence specific facts that demonstrate that a genuine issue of fact exists for trial. Id. The moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) to affirmatively demonstrate that the nonmoving party has no evidence to support its claims and the movant cannot rely on mere conclusory statements. Cole v. Am. Industries Resources Corp. (1998), 128 Ohio App.3d 546, 551-552. The evidence must consist of pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, or written stipulations of fact. Dresher, supra, 75 Ohio St.3d at 298. Although Appellant's brief lists six assignments of error, each assignment makes the argument that the trial court erroneously granted Appellee's Motion for Summary Judgment. We will treat all six assignments of error as one in order to effectively analyze Appellant's argument on appeal. Appellant maintains that the basis for the trial court's decision was a provision in the parties' 1989 separation agreement in which each party released the other from all claims to all property the other party presently owned or may thereafter acquire. Appellant argues that the separation agreement did not consider nor control the events which subsequently occurred, namely, that after the legal dissolution the parties entered into a common-law marriage and, during this marriage, Appellee was involved in an automobile accident. Appellant argues that the earlier separation agreement cannot defeat her subsequent claim for loss of consortium based on her remarriage to Appellee. The separation agreement in question is not a part of the record on appeal, in spite of Appellant's attempt to create an additional appellate record by attaching an extensive appendix to her brief. Nevertheless, even if the separation agreement released each party from claims on future property interests acquired by the other party, such a provision would not entitle Appellee to summary judgment. Appellant is claiming that a portion of the $25,000.00 award from the Clients' Security Fund is her own property; property to which she is entitled by virtue of her own separate claim for loss of consortium. Appellee argues that any loss of consortium claim by Appellant was extinguished. In Ohio, "[a]n action for loss of consortium occasioned by a spouse's injury is a separate and distinct cause of action that cannot be defeated by a contractual release of liability which has not been signed by the spouse who is entitled to maintain the action." Bowen v.Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, at syllabus. Appellee argues that Appellant signed a release pertaining to the 1991 settlement of the automobile accident for $314,600.00. Thus, Appellee states that Appellant effected a waiver of her right to this loss of consortium claim. Once again, the settlement agreement is not part of the record on appeal. The only evidentiary documents available for this Court's review are the pleadings, Appellee's Motion for Summary Judgment with Appellee's affidavit attached and Appellant's Response with her own amended affidavit attached. It is apparent from the record that the parties disagree as to the specific terms of the 1991 settlement agreement. Appellee has not placed any evidence in the record which resolves the disputed terms of that settlement agreement. Therefore, a material question of fact exists and summary judgment in favor of Appellee is inappropriate. There are additional factual disputes apparent on the record. To defeat some of Appellant's arguments, Appellee insists that Appellant must prove that the parties entered into a valid common-law marriage subsequent to February 28, 1989, and that the marriage was still valid at the time of Appellee's automobile accident. Appellee argues that as Appellant did not provide evidence to support each essential element of a valid common-law marriage in response to Appellee's Motion for Summary Judgment, her claims on this issue must fail. Appellee is mistaken in this argument. Common-law marriages occurring after October 10, 1991, are prohibited in Ohio. R.C. § 3105.12(B)(1). Common-law marriages occurring prior to that date will continue to be recognized if they meet certain requirements and have not been terminated by death, divorce, dissolution of marriage, or annulment. R.C. § 3105.12(B)(2); Lyon v. Lyon (1993), 86 Ohio App.3d 580, 584. The Ohio Supreme Court, in State v.DePew (1988), 38 Ohio St.3d 275, 279, set forth the factors required to establish a valid common-law marriage: "(1) an agreement of marriage inpraesenti; (2) cohabitation as husband and wife; and (3) a holding out by the parties to those with whom they normally come into contact, resulting in a reputation as a married couple in the community." Appellee's Motion for Summary Judgment did not specifically raise the issue of the existence or validity of the parties' alleged common-law marriage. It was Appellee who had the burden of establishing that no common-law marriage existed. Appellee did not even attempt to meet this burden. Therefore, there was no reciprocal burden on Appellant to establish facts to support each essential element of a valid common-law marriage. Dresher, supra, 75 Ohio St.3d at 293. Nevertheless, Appellant's amended affidavit does allege facts that meet the three elements of a valid common-law marriage as set out in State v.DePew, supra. Appellant alleges that the parties continued to live together as husband and wife after February 28, 1989, that she cared for Appellee after his automobile accident, that they held themselves out to the public as husband and wife, that they filed their automobile accident complaint as husband and wife and that both the $314,600.00 settlement check and the $25,000.00 state fund check at issue in this case were made out to the parties jointly as husband and wife. Thus, not only has Appellant established a disputed material issue of fact regarding the parties' alleged common-law marriage, she has further established an issue of fact as to her loss of consortium claim. A valid existing marriage is an essential element of a claim for loss of consortium. Bowen v.Kil-Kare, supra, 63 Ohio St.3d at 97. The record on appeal essentially consists of competing affidavits of the parties. The affidavits raise, but do not resolve, issues concerning the parties' February 28, 1989, separation agreement, their settlement agreement concerning Appellee's automobile accident, the existence of a common-law marriage after February 28, 1989, and the status of Appellant's claim for loss of consortium. In ruling on a motion for summary judgment it is improper for a court to weigh the evidence or choose among a variety of reasonable inferences. Jacobs v. Racevskis (1995), 105 Ohio App.3d 1, 7. Accordingly, we find that genuine issues of material fact exist in this case and we hold that the trial court's award of summary judgment was improper. Appellant's assignments of error are sustained. The judgment of the trial court is reversed and the cause remanded for further proceedings. Cox, P.J., concurs. Donofrio, J., concurs.

2016-07-06 06:42:13.976517+00

OPINION {¶ 1} Defendant-appellant, Jack R. Agee, appeals his conviction from the Butler County Court of Common Pleas for felony domestic violence. {¶ 2} Appellant was charged with domestic violence after it was alleged that he punched his fiancé in the face during an argument. Appellant's case was tried to a jury, which returned a guilty verdict. Appellant was sentenced to prison and this appeal followed. Appellant presents two assignments of error, which we will address out of order. *Page 2 {¶ 3} Assignment of Error No. 2: {¶ 4} "THE TRIAL COURT ERRED IN CONVICTING [APPELLANT] OF [DOMESTIC VIOLENCE] AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]" {¶ 5} A court considering whether a conviction is against the manifest weight of the evidence must review the entire record, weighing the evidence and all reasonable inferences, and consider the credibility of witnesses. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 39. The question is whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. Id.; see, also, State v.Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52; State v. Blanton, Madison App. No. CA 2005-04-016, 2006-Ohio-1785, ¶ 7. {¶ 6} The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Hancock at ¶ 42. We must be mindful that the original trier of fact was in the best position to judge the credibility of witnesses and the weight to be given the evidence. State v.DeHass (1967), 10 Ohio St.2d 230, paragraph one of syllabus. A unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required to reverse a judgment of a trial court on the weight of the evidence in a jury trial. Thompkins at 389. {¶ 7} The domestic violence statute states that no person shall knowingly cause or attempt to cause physical harm to a family or household member. R.C. 2919.25(A). If the offender had previously been convicted of two or more offenses of domestic violence, a violation of subsection (A) is a felony of the third degree. R.C. 2919.25(D)(4). {¶ 8} Appellant stipulated before trial that he had two prior domestic violence convictions before the incident in question. {¶ 9} The alleged victim in this case, Sarah Siddiqi ("victim") testified at trial that she and appellant lived together at the time of the incident and were engaged to be married. *Page 3 According to the victim, she and appellant were returning home from a pool tournament when an argument ensued. The victim was driving and appellant was sitting in the front passenger seat. The victim testified that appellant punched her in the face. She pulled to the side of the road and ordered appellant out of the vehicle. The victim returned home and set her security alarm. The alarm sounded when appellant entered the door. The security company contacted the victim, and called police at the victim's request. {¶ 10} Appellant was not present when police arrived at the scene. The responding officer testified at trial that he talked with the victim, who was "extremely upset" and had swelling and redness on or near the right eye. Appellant reportedly called the victim on her cell phone while the officer was present. The officer testified that he took the phone and talked with the other person on the phone. This person refused to tell the officer where he was located, refused to meet with the officer, and eventually, terminated the call. {¶ 11} On cross-examination of the victim, appellant elicited evidence that the victim had been drinking beer at the pool tournament, that she did not seek treatment for the injuries she alleged, and that she allowed appellant back into her home after the incident. {¶ 12} The victim admitted in her testimony that she drank beer at the bar, but denied it had any impact on the events that occurred. The officer responding to the incident testified that he had no concern about the victim's alcohol intake. {¶ 13} The victim alleged that her nose was broken and that a brow bone was also broken. She indicated that she consulted with her physician father, but sought no other treatment. {¶ 14} The victim admitted on cross-examination that she drove appellant to his family reunion some two weeks after the incident. Appellant introduced photographs taken of the victim with appellant and his family. These photos were reportedly taken two weeks after the incident. *Page 4 {¶ 15} The victim testified that she permitted appellant to live in the basement of her home for a few weeks after the incident because he had already paid that month's rent and she thought he had no place to stay. {¶ 16} We have reviewed the evidence admitted at trial. We cannot say that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction for domestic violence must be reversed. Appellant's second assignment of error is overruled. {¶ 17} Assignment of Error No. 1: {¶ 18} "AGEE WAS DENIED HIS RIGHT TO A FAIR TRIAL BECAUSE OF THE INEFFECTIVE ASSISTANCE OF HIS TRIAL COUNSEL[.]" {¶ 19} Appellant alleges that his trial counsel was ineffective because she did not permit Agee to testify on his own behalf, and because she stipulated to his two prior convictions of domestic violence. {¶ 20} Reversal of a conviction for ineffective assistance requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052; State v. Ketterer,111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 81. {¶ 21} A strong presumption exists that a licensed attorney is competent and that the challenged action is the product of sound trial strategy and falls within the wide range of professional assistance.Strickland at 689. While the wisdom of a given strategy may be debatable, trial tactics, even "debatable trial tactics," do not constitute a denial of effective assistance of counsel. State v.Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 146; State v.Heffernan, Clermont App. Nos. CA2005-11-104, CA2005-11-105,2006-Ohio-5659, ¶ 11. {¶ 22} Trial counsel's advice in regard to whether a defendant testifies or not is a clear example of trial strategy. See State v.Ambrosi, Lorain App. No. 03CA008387, 2004-Ohio-5552, ¶ 14; *Page 5 see, also, State v. Mohammad, Cuyahoga App. No. 80867, 2002-Ohio-5850, ¶ 46-48 (decision not to call appellant as a witness is within the range of professionally reasonable judgment). {¶ 23} Further, trial counsel's conduct in stipulating to appellant's prior convictions rather than having the state present evidence on those convictions is also a matter of trial strategy. See State v.Abercrombie, Clermont App. No. CA2001-06-057, 2002-Ohio-2414; State v.Young (Feb. 22, 1996), Cuyahoga App. No. 69010, 69011. {¶ 24} Appellant argues that the representation was deficient because there was no harm in having him testify, once the stipulations were in the record. Trial counsel's apparent strategy was to attack the victim's credibility, while not placing issues of appellant's credibility, character, or demeanor before the jury. We cannot say that trial counsel's trial strategy was deficient or prejudiced appellant. Appellant's first assignment of error is overruled. {¶ 25} Judgment affirmed. YOUNG, P.J., and BRESSLER, J., concur. *Page 1

2022-11-23 16:04:54.298122+00

Bennett

BENNETT, Judge, delivered the opinion of the court: This is a suit for refund of royalties paid by plaintiff to the United States for lithium which plaintiff mines on federal lands near Silver Peak, Nevada. Defendant counterclaims for additional royalties. Plaintiff seeks review of a decision by the Department of the Interior Board of Land Appeals (IBLA or the board) adverse to plaintiff on its claim and upholding defendant’s counterclaim. Foote Mineral Co., 34 IBLA 285 (1978). The case comes before the court on the parties’ cross-motions for summary judgment. We hold for plaintiff. Plaintiff, Foote Mineral Company (Foote), holds sodium and potassium leases acquired by it or its predecessor in interest in 1963, 1964, and 1968. The leases give plaintiff the right to mine sodium compounds and "related products” and potassium and "associated deposits” at the Silver Peak sites, subject to the payment of a royalty to the United States. Defendant contends that the lithium is covered by the lease on the ground that it is a "related product” or "associated deposit.” The leases were issued to plaintiff and its predecessor upon applications by them which contained recitals that they had discovered valuable deposits of sodium and potassium at the Silver Peak sites. One of the prerequisites for the issuance of sodium and potassium leases is that the lands to be covered by the lease must contain valuable deposits of sodium and potassium. 30 U.S.C. §§ 262, 282 (1976). Another prerequisite is that the lands must be chiefly valuable for sodium and potassium. Id. Plaintiff has also located unpatented placer mining claims pursuant to the General Mining Laws, 30 U.S.C. §§ *23221-54, on all of the lands which are covered by the sodium and potassium leases in issue. The major difference between minerals extracted pursuant to "locations” under the General Mining Laws and those pursuant to leases is that located minerals may be mined without payment of a royalty to the United States whereas a royalty is required for leased minerals. Although plaintiff holds sodium and potassium leases, it is not interested in and does not sell or use sodium or potassium. Instead, plaintiff is interested in lithium which exists in an underground brine in solution with other minerals, including sodium and potassium. The brine is pumped to the surface and the lithium is extracted and sold. The sodium and potassium are either returned to the underground brines or stockpiled on the lands covered by the mining claims and leases. Foote regards the sodium and potassium as contaminants in its operations since they actually interfere with the production of lithium. Plaintiff began production of lithium at Silver Peak in early 1966. It paid royalties to the United States on the lithium until December 1974. At that point, the United States Geological Survey (USGS), which administered the leases, informed plaintiff that plaintiff had been incorrectly calculating the royalties due and that more were owed. In reviewing USGS’s position on the royalty calculations, Foote also reviewed the question of whether the lithium produced at Silver Peak was a locatable or leaseable mineral. Plaintiff concluded that lithium was locatable and that therefore no royalties were due at all. Plaintiff appealed the USGS decision and in that appeal demanded a refund of all royalties previously paid. The Acting Director of USGS ruled against plaintiff on all issues. Plaintiff then appealed to the board and requested an evidentiary hearing. A hearing was denied on the ground that there were no facts in dispute and on April 17, 1978, the board ruled against plaintiff. Plaintiff now seeks review of the board decision. This is apparently the first time that we have been called upon to review an IBLA decision. Our jurisdiction to review the board is not disputed. Plaintiff seeks a refund pursuant to 43 U.S.C. § 1734(c) (1976), which provides: *233In any case where it shall appear to the satisfaction of the Secretary that any person has made a payment under any statute relating to the sale, lease, use, or other disposition of public lands which is not required or is in excess of the amount required by applicable law and the regulations issued by the Secretary, the Secretary, upon application or otherwise, may cause a refund to be made from applicable funds. An earlier and quite similar version of this statute was held to establish jurisdiction in the Court of Claims for those claiming entitlement to refunds. United States v. Laughlin, 249 U.S. 440, 442-43 (1919). We think that, decision carries over to the present statute. Lest there be any confusion, we note that the board is the Secretary’s representative and decides the cases before it as fully and finally as might the Secretary. 43 C.F.R. §§ 4.1, 4.1(b)(3) (1980). The board’s decision is the Secretary’s decision, therefore, for purposes of jurisdiction to review the agency’s action pursuant to the above refund statute. As to the proper scope of review, the parties are generally in agreement that Administrative Procedure Act-type review is appropriate. See 5 U.S.C. § 706 (1976). However, they differ as to the proper standard for review of the board’s findings of fact. Plaintiff would have us review the board’s factual findings to see if they are supported by substantial evidence. Defendant, on the other hand, asserts that such findings are conclusive and there may be no review. Defendant’s position is both inconsistent and untenable. It is inconsistent because the Administrative Procedure Act does provide for review of factual findings under either the substantial evidence test or the arbitrary and capricious test. 5 U.S.C. §§ 706(2)(A), (E) (1976); Doe v. Hampton, 566 F.2d 265, 271-72 n.15 (D.C. Cir. 1977); K. Davis, Administrative Law of the Seventies § 29.00 (1976). It is untenable because no statute precludes review of the board’s factual findings, or otherwise vests its decisions with finality, and we discern no other reason for holding that the Department of the Interior is entitled to a greater shield from judicial scrutiny than other agencies. Coleman v. United States, 363 F.2d 190, 195 (9th Cir. 1966), rev’d on other grounds, 390 U.S. 599 (1968). We are quite familiar *234with nonstatutory review of agency adjudications in other contexts. We think it proper to employ the same standards for review of IBLA decisions as we have for so long in those other cases. That standard is to set aside agency decisions found to be illegal because they are arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, not in substantial compliance with procedural requirements, or otherwise contrary to law. E.g. Summers v. United States, Ct. Cl. No. 130-79C (slip opinion of May 6, 1981) (civilian pay); Pasadena Hospital Ass’n v. United States, 223 Ct. Cl. 70, 618 F.2d 728 (1980) (Medicare); Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804 (1979) (military pay). Plaintiff seeks relief on four grounds: (1) that there are no valuable deposits of sodium or potassium at Silver Peak and therefore the leases are invalid; (2) that the Silver Peak lands are not chiefly valuable for sodium or potassium and therefore the leases are invalid; (3) that lithium is not covered by the leases because it is not a "related product” of sodium or an "associated deposit” of potassium; (4) that the board followed improper procedures in the course of its decision, relying on evidence not of record. We rest our decision on the first ground and so do not need to reach the other three. As already mentioned, were plaintiff able to mine lithium at Silver Peak pursuant to its locations under the General Mining Laws, it could do so without the payment of a royalty to the United States. Minerals extracted pursuant to the General Mining Laws are called "locatable.” The Mineral Leasing Act, however, excepts sodium, potassium, and certain other minerals from the operation of the General Mining Laws under certain conditions and requires the payment of a royalty. 30 U.S.C. §§ 262, 282 (1976). Minerals extracted pursuant to the Mineral Leasing Act are called "leaseable.” Ordinarily, lithium is a locatable mineral. However, defendant contends that it becomes leaseable when it exists in a brine with sodium or potassium under the "related products” and "associated deposits” language in the leases. The statutes provide for the payment of a royalty on sodium, potassium and "related products.” Id. *235One of the required conditions for bringing the Mineral Leasing Act into effect for sodium and potassium mining is that the lands to be leased must contain valuable deposits of sodium or potassium. This is an explicit statutory requirement. 30 U.S.C. §§ 262, 282 (1976). The board has in a recent case held that brines containing sodium are not leaseable where the sodium deposits are not commercially valuable. United States v. Bardsley, 45 IBLA 367 (1980). The same principle would apply to potassium. The effect of a finding that the brines here do not contain valuable deposits of sodium or potassium would be to render the leases invalid, and to render the Mineral Leasing Act inapplicable. The result would be that the General Mining Laws would apply and these brines and the lithium contained in them would be subject to location and removal without the payment of a royalty. Plaintiff contends that there are no valuable deposits of sodium or potassium at its Silver Peak sites and that there were none at the time its leases issued. It offers affidavits to that effect and defendant has not responded to them. Plaintiff claims it sought the leases solely as the mechanism for obtaining the rights to develop the lithium and defendant concedes that all parties understood this to be the case. Foote says that it sought the leases because, at the time, the Department of the Interior had a policy that where otherwise locatable minerals were dissolved in a brine with sodium or potassium, the locatable minerals had to be leased even if the deposits of leaseable minerals were not valuable. Plaintiff offers us a 1963 internal memorandum of the Department of the Interior which supports this contention. Again, defendant does not dispute this. Plaintiffs argument is that it was wrong for the Department to require leases for the lithium where there were no valuable deposits of sodium or potassium since that is an explicit statutory prerequisite to leasing. As noted, defendant has not disputed the above assertions of fact. Instead, defendant asserts that plaintiffs argument on the issue of the existence of valuable deposits of sodium or potassium is barred by waiver or estoppel. Alternatively, defendant insists that the case should be remanded to the board for trial on the matter. *236Defendant’s waiver defense is that plaintiff has waived this contention by failing to raise it at the administrative level. However, we find, after an examination of the administrative record, that plaintiff did raise the issue. In plaintiffs "Statement of Reasons in Support of Appeal” before the board, we find the following passage: Further, the lithium at Silver Peak can in no way be construed as a by-product of any Leasing Act mineral since neither sodium, potassium, nor any other Leasing Act mineral is or currently could be produced for sale in commercial quantities by Foote at Silver Peak. Also, in Foote’s "Supplemental Request for Hearing to Present Evidence on Issues of Fact,” the point is again raised: Likewise, opposition by the Government to Foote’s contention that neither sodium nor potassium are or could be produced for sale in commercial quantities from its Silver Peak operation presents a question of fact. Defendant argues that plaintiff never claimed the leases were invalid before the board. However, while plaintiff never did so in so many words, the argument of invalidity follows implicitly from the argument that valuable deposits of sodium and potassium did not exist. It is important to note that the board refused to hold an evidentiary hearing so that plaintiff never had the opportunity for a full exposition of the facts on this issue. However, the above-quoted portions of plaintiffs briefs before the board do satisfy the requirement that an issue be raised at the administrative level. The defense of waiver therefore fails. Defendant also argues that plaintiff should be estopped from asserting that there are or were no valuable deposits of sodium or potassium at Silver Peak because of the statements in the lease applications to the contrary. We see no basis for estoppel in this case. Where defendant asserts estoppel as an affirmative defense, it has the burden of establishing that all the elements of estoppel are present. McGraw-Hill, Inc. v. United States, 224 Ct. Cl. 354, 369 n.12, 623 F.2d 700, 708 n.12 (1980); Tom W. Carpenter Equip. Co. v. General Elec. Credit Corp., 417 F.2d 988, 990 (10th Cir. 1969). Defendant does not claim that it was in any *237way misled by the recitals in the lease applications that there were valuable deposits of sodium and potassium or that it was ignorant of the true facts. It does not claim that it relied on such representations in any way to its detriment. Nor does it assert that plaintiff has gained any unfair advantage over othérs. It is simply not enough to contend that the recitals are contrary to plaintiffs present contentions. Russell Corp. v. United States, 210 Ct. Cl. 596, 613, 537 F.2d 474, 484 (1976), cert. denied, 429 U.S. 1073 (1977); Emeco Indus., Inc. v. United States, 202 Ct. Cl. 1006, 1015, 485 F.2d 652, 657 (1973). Finally, we note that plaintiffs earlier action stemmed from the parties’ misapprehension of the law. Under these circumstances, the defense of estoppel must also fail. Our conclusion, based on the above discussion, is that the board erred and that its decision must be set aside. Plaintiff asserted below that there were no valuable deposits of sodium or potassium available at the Silver Peak sites. Such an assertion, if shown to be true, would invalidate the leases under the statutes, 30 U.S.C. §§ 262, 282 (1976). However, the board refused to grant an evidentiary hearing on this issue. It disposed of the matter by simply noting that "the leases were issued on the basis of claims by appellant’s [Foote’s] predecessor that it had discovered a valuable deposit of sodium or potassium.” The board’s reasoning is not clear. In essence, it made an implicit finding of fact that valuable deposits existed, based solely on the recitals. In so doing, the board erred as a matter of procedure. The recitals do not constitute irrefutable evidence of the existence of valuable deposits and so the board should not have found the facts, which were disputed, without holding an evidentiary hearing. In such a hearing, plaintiff would have had the opportunity to develop the facts fully and overcome the indication of the recitals in the lease applications that valuable deposits of leaseable minerals existed. Under such circumstances, summary disposition of the case was improper. The board must therefore be reversed. The next issue is what to do with the case at this point. As indicated, defendant insists that if we reject its defenses of waiver and estoppel, as we have done, the case must be remanded to the board for trial on the issue of whether *238there were valuable deposits of sodium or potassium. Plaintiff would have any further trial in this court on a de novo basis. However, the basic facts as asserted by plaintiff have not been contested by defendant. Plaintiff has offered affidavits to the effect that the Silver Peak mines do not contain valuable deposits of sodium or potassium and did not at the time the leases issued, and defendant has not responded to the affidavits. In addition, defendant has not indicated what further relevant facts it would show at an evidentiary hearing. Under such circumstances, we do not see the need for a trial on liability. Under our rules, where a motion for summary judgment is made and supported by affidavits— * * * an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him. [Ct. Cl. Rule 101(f).] Bryant v. United States, 216 Ct. Cl. 409, 410-11 (1978); Pacific Far East Line, Inc. v. United States, 206 Ct. Cl. 378, 385, 513 F.2d 1355, 1359 (1975); Hartwig v. United States, 202 Ct. Cl. 801, 810-11, 485 F.2d 615, 620-21 (1973). We are unwilling to consume the resources of the court and the plaintiff by remanding the case for trial either to the board or to our trial division on the hypothesis of a factual issue which defendant is unwilling to preserve. The case is ripe for summary judgment based on the facts as recited in this opinion. In sum, we hold that valuable deposits of sodium or potassium do not exist at the Silver Peak mines and did not exist at the time the instant leases were issued. Therefore, the leases were issued in excess of statutory authority and are invalid. Plaintiff is entitled to recover royalties paid under the leases. Plaintiffs petition also prays for a determination that plaintiff owes no royalties on lithium that will be mined in the future. To make such a determination would require declaratory judgment authority which this court unfortunately does not have. United States v. King, 395 U.S. 1 (1969). Therefore, that particular part of the relief request*239ed must be denied. We are confident, however, that the defendant’s common sense will prevail and that plaintiffs apprehensions about defendant’s trying to collect such royalties in the face of the collateral estoppel effects of this opinion may be put to rest. It also follows from our opinion that defendant’s counterclaim for additional royalties based on these leases must be dismissed. There remains the question of the amount of plaintiffs recovery. Here we will follow our usual practice in other cases of reviewing agency adjudication and remand to our trial division for a determination of the amount of recovery. E.g. Faith Hosp. Ass’n v. United States, 225 Ct. Cl. 133, 634 F.2d 526 (1980) (Medicare); Bur v. United States, 224 Ct. Cl. 52, 621 F.2d 415 (1980) (civilian pay); Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804 (1979) (military pay). But cf. United States v. Anthony Grace & Sons, 384 U.S. 424, 430 n.6 (1966) (government contract: parties’ contract had term requiring that case be remanded to administrative board on issues of damages). We note as a final matter that defendant’s answer asserts that the statute of limitations bars any recovery for royalties paid prior to January 8, 1972. The parties have not yet addressed this issue and may do so on remand. We express no opinion on the matter. In sum, having heard oral argument, and upon consideration of the briefs, exhibits and administrative record, we grant plaintiffs motion for summary judgment. Defendant’s motion for summary judgment is denied and its counterclaim is dismissed. The case is remanded to the trial division for a determination of the amount of recovery under Ct. Cl. Rule 131(c).

2016-07-06 06:42:13.456489+00

Black

The dispositive question in this case is whether the insurer of disability benefits fulfilled or violated a duty to disclose a medical opinion that the insured's medical treatment for heart disease was inadequate, when that opinion came to the insurer's attention by reason of medical examinations it arranged for the insured in connection with the payment of disability benefits. We hold that, under the circumstances revealed by the record, that duty was fulfilled. I William Meinze was employed as a maintenance pipefitter and plumber by Northern Kentucky University and suffered a heart attack on April 22, 1982. He was hospitalized by his treating physician, Dr. Glenn J. Bichlmeir. On June 11, 1982, a coronary arteriography was performed by a cardiologist, Dr. John C. Holmes, who initially concluded that Meinze had advanced three-vessel coronary artery disease with poor left ventricular function. However, the arteriography results were read by a radiologist, Dr. Harold Margolin, who concluded that Meinze did not have a serious coronary artery disease but a partial blockage. Holmes acceded to this opinion, did not recommend corrective surgery, and prescribed a relatively minor regime of treatment. On August 5, 1982, Meinze applied for disability benefits from the Teachers Insurance and Annuity Association ("TIAA") claiming he was totally disabled. Under the disability policy covering the University's employees, TIAA required Meinze to apply for Social Security benefits because those payments would reduce the amounts contractually payable by TIAA. Meinze's applications to the Social Security Administration were twice rejected. After each rejection, TIAA arranged for Meinze to be examined by two independent medical consultants whom it engaged for this purpose. The first examination was performed by Dr. Allen Cornish who sent TIAA a report dated January 7, 1983, and the second examination was by Dr. Robert Adolph whose report was dated June 27, 1983. Each consultant stated in his respective report to TIAA that in his opinion the treatment prescribed was either questionable or *Page 145 inadequate, but each stated this only to TIAA because under the arrangement, the consulting physicians were required to deliver their reports only to TIAA and to no other person. Cornish felt that Margolin's reading of the "cardiac catheterization" was inconsistent with the other indications, and he stated this in his report of January 7, 1983, as follows: "There certainly is a discrepancy in the description of his cardiac catheterization results between the initial evaluation and the review of his cines. I think it would be of benefit to have the cathing doctor review the films again. Certainly the initial impression fits more with the EKG findings and Mr. Meinze's symptoms. "* * * "It certainly would be difficult to predict how well his symptoms would respond to more aggressive medical management, however, I think he will need to avoid heavy physical exertion in the future. This certainly may limit his ability to perform his duties as power plant operator since climbing and heavy lifting are involved. "In summary, I feel that Mr. Meinze's [sic] must be assumed to have class III angina pectoris. His physical activity should be significantly restricted at this time. He may improve with more aggressive medical therapy, but still would need to be under restrictions from heavy lifting and vigorous physical exercise. There is a discrepancy in his cardiac catheterization report and I feel that a review of his films would be helpful in assessing his overall prognosis." Dr. Adolph stated in his report of June 27, 1983: "His medical management is inadequate insofaras [sic] he is not taking either nitrates and/or a calcium channel blocker. He has hypertension, which is poorly controlled on the beta-blocker alone. He is at considerable risk for developing another acute myocardial infarction. In view of the finding of three-vessel disease and because of the persistence of his symptoms of angina. [Sic.] His is a candidate for coronary artery bypass grafting by usual criteria. "* * * "I believe that his symptoms are real and that he is totally disabled by virtue of the disease mentioned above. His physical activities should be significantly restricted and rehabilitation to gainful employment could only be considered following more aggressive medical management and coronary artery bypass surgery." (Emphasis sic.) TIAA's medical director, Dr. Oscar Garfein, thought that Holmes's angiogram should be reviewed, that Meinze's condition was "rather serious," but that he was not at considerable risk. At Meinze's written request, a copy of Cornish's report was delivered to Meinze's attorney, Deborah F. Webb, on April 18, 1983, and a copy of Adolph's report was delivered to her on September 13, 1983. These deliveries are uncontroverted. Webb used these copies to pursue Meinze's reapplications for Social Security benefits, and they were entered in the record of these proceedings. Webb talked to Bichlmeier for an hour on May 6, 1983, about the Cornish report. Meinze's family had a copy of Adolph's report when he was admitted to Park West Hospital in Knoxville, Tennessee, on January 1, 1984. The family was traveling through that city between Cincinnati and Florida when Meinze suffered another heart attack. This one was fatal, and he died in the hospital on January 5, 1984. II Meinze's administratrix brought suit against the cardiologist, the *Page 146 radiologist and TIAA, claiming malpractice by the physicians and both a negligent violation and an intentional violation by TIAA of a duty to disclose the inadequacy of Meinze's treatment. The malpractice and the failure to disclose were alleged to have caused Meinze's death. The two physicians settled the respective claims against them and were dismissed from the case. TIAA filed a motion for summary judgment that was supported by affidavits, answers to interrogatories and depositions. The trial court granted TIAA's motion without filing an opinion, and the administratrix appealed. In the first of two assignments of error, appellant asserts that the trial court erred in ruling that as a matter of law TIAA had no duty to inform Meinze about his serious medical condition, and in the second, that the trial court erred in holding that the furnishing of the Cornish and Adolph reports fulfilled TIAA's duty to inform. We find no merit in either assignment of error. III The first assignment of error has no merit because the record fails to substantiate it. The record does not demonstrate that the court made a specific holding that an insurer has no duty whatsoever to disclose significant medical information. The trial court's entry granting TIAA's motion for summary judgment states no more than that there were no genuine issues of material fact and that TIAA was entitled to a judgment as a matter of law. The court did not state its reasons for granting the motion, and as will be explained below, there are two other possible reasons for its judgment in addition to the absence of a duty to disclose. IV The second assignment of error has no merit, in our judgment, for two reasons. The first is that on the basis that a disability insurer has, under some circumstances, a duty to inform the insured about significant medical information it acquires by reason of examination of the insured's person and his medical files (see Part A below), that duty was fulfilled in this case when the insurer sent copies of the pertinent reports to the insured's attorney. The second reason is that the appellant failed to establish another essential element of her claim for damages; that is, she failed to establish the causal connection between the failure to disclose (if any) and the death. A Returning to the first reason, we examine appellant's arguments that because TIAA constrained Cornish and Adolph to report their opinions only to itself, TIAA assumed the duties incumbent on the physicians, and that under the circumstances, this duty was to disclose directly and personally to Meinze the opinion that his treatment was inadequate. Appellant bases this duty on an analogy to the duty of an employer to disclose to an employee, prior to or during employment, information the employer acquires when a physician it engaged discovers a serious medical problem while examining the employee in accordance with the employer's requirements. Annotation (1960), 69 A.L.R. 2d 1213. The employer's duty has been held to arise at common law under three different theories: "* * *(1) Even in the absence of a doctor-patient relationship, a doctor who assumes to act must act carefully with respect to all aspects of the examination; (2) where a doctor acts primarily for the benefit of an employer in examining a prospective employee, the doctor must act carefully with respect to all aspects of the examination; (3) where a doctor-patient relationship exists, *Page 147 the doctor must act with care. * * *" Betesh v. United States (D.D.C. 1974), 400 F. Supp. 238, 245. The first theory of assumed responsibility could be applied outside the employer-employee relationship, and conceivably could be applied to the insurer-insured relationship, because it arises even though no doctor-patient relationship has been created. The second and third theories are not applicable in this case. The second theory is grounded on an employer's duty to warn an employee of a "hidden" danger or risk. Union Carbide CarbonCorp. v. Stapleton (C.A.6, 1956), 237 F.2d 229. It is not transferable to an insurer, because the insurer does not owe the same duty of safety to its insureds that an employer owes to its employees. The third theory can be applied only when the examining physician undertakes an ongoing relationship with the examined person based on mutual consent, thus creating a doctor-patient relationship when there was none in the first instance. No such consensual, ongoing relationship arose in the instant case. Cornish and Adolph had only one consultation each with Meinze. We are unwilling to hold, as TIAA would have us hold, that an insurer's physician has no duty under any circumstances to disclose to the insured a newly discovered significant medical risk or danger unknown to the insured. On the other hand, we are also unwilling to hold, as appellant would have us hold, that the duty arises and includes an obligation to intervene directly with the insured whenever the examining physician opines that the treatment is inadequate, or presumably whenever the examining physician thinks there are better ways to treat the particular medical condition. The record does not contain any expert evidence that will assist us in determining what sort of circumstances will create a duty to disclose, what is the extent of that duty, and what actions will fulfill it. The deposed physicians in this case suggest that there may conceivably be situations in which a physician should disclose vital medical information, but the operative factors in those situations are not clear. We are, therefore, unwilling to develop a comprehensive statement of the duty to disclose beyond the requirements of this appeal. Because the determinative fact in this case is that the opinions of the examining physicians were communicated to the insured, we need only determine whether the duty of reasonable care under the circumstances before us was fulfilled by that delivery. The duty to disclose will arise under circumstances when a reasonable physician of ordinary skill and diligence would disclose a significant risk or danger to the person being examined, even though the doctor-patient relationship does not exist. The risk or danger may arise from the inadequacy of the treatment as well as from the patient's condition. This duty arises because the physician has examined the insured personally or has reviewed his confidential medical records, and he has thus assumed a professional and expert position with respect to the insured's physical condition and well-being, even though a doctor-patient relationship has not been created. What is the extent of the duty? We turn to the analogous employer-employee relationship. In Union Carbide, supra, the duty to disclose arose because the examined person was unaware of the newly discovered medical risk, and the examining physician knew he was not aware. In the instant case, Meinze was fully aware of his heart disease and he was under treatment by his own physician on a regular basis. The risk was not unknown. *Page 148 Bichlmeir and Holmes knew Meinze had a three-vessel coronary artery disease with left ventricular dysfunction. The information of which Meinze was not aware, initially, was that at least one of the examining physicians (Adolph) thought his treatment was inadequate and he was at considerable risk. But there was a difference of opinion about the adequacy of his treatment. Garfein did not view the risk as being "considerable." Cornish's opinion was expressed in veiled terms; he even said he was not sure of the benefits of a more aggressive treatment. The record does not present a situation in which there was agreement among TIAA's physicians that there was an immediate threat to Meinze's life that was either unknown to or ignored by his treating physicians. Under these circumstances, we believe the extent of the duty to disclose was to communicate the opinions of the examining physicians about the quality of treatment either to the treating physician or to the patient-insured. We reject appellant's argument that under the circumstances of this case, the duty of the examining physicians was to intervene by stepping between the treating physician and the patient-insured to explain in detail the adverse opinions and to prescribe or advise a different or more aggressive treatment. We hold that TIAA fulfilled its duty to communicate when, at Meinze's specific request, it delivered copies of the Cornish and Adolph reports to Meinze's attorney on April 18, 1983, and on September 13, 1983, respectively. The operative information in those two reports (as opposed to the technical analysis of the experts' examinations and tests) was stated in plain, understandable terms. The delivery to Meinze's attorney was, in our judgment, functionally equivalent to delivery either to Meinze or to his treating physician. In sum, the record demonstrating that TIAA fulfilled its duty to disclose opinions that the treatment was or might be inadequate, TIAA is entitled to judgment as a matter of law. B The second reason that the trial court did not err in granting summary judgment to TIAA is that appellant failed to establish another essential element in addition to the violation of a duty to disclose; that is, the essential element of causation of Meinze's death, suffering or other deprivation by the alleged failure to disclose. Appellant alleged in her petition that TIAA's defalcation caused Meinze great physical and mental pain and suffering, caused his total disability and deprived him of his future earning capacity. The record, however, contains no evidentiary documentation of what pain and suffering was caused by the failure to disclose and of how Meinze's death or loss of earning was caused by that failure. As the movant, TIAA had the duty to demonstrate to the court that it was entitled to judgment as a matter of law because there was no genuine issue about any material fact. One of TIAA's arguments was that causation was not demonstrated. In Celotex Corp. v. Catrett (1986), 477 U.S. 317, the manufacturer of an asbestos product won a summary judgment under Fed.R.Civ.P. 56(c) and (e) on the basis that the claimant was unable to produce evidence that the decedent has been exposed to the manufacturer's products. The Supreme Court held that even though the moving party has the burden to demonstrate that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, the moving party does not have to produce *Page 149 evidence negating the opponent's claim. The court said at477 U.S. at 322-323: "In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. * * *" In the instant case, there was clearly adequate time for discovery. The first amended complaint was filed by leave on June 24, 1985, the motion for summary judgment was filed January 10, 1986, the depositions and affidavits of all persons with knowledge of TIAA's activities were filed, and the summary judgment was rendered on July 3, 1986. Appellant could not rely on the unsworn allegations of her complaint. Civ. R. 56(E). V Finding that there was no genuine issue of any material fact that the TIAA was entitled to judgment as a matter of law, we affirm the summary judgment below. Judgment affirmed. DOAN, J., concurs. UTZ, J., not participating.

2016-07-06 06:42:13.610038+00

Ross

This is an appeal on questions of law from a judgment of the Court of Common Pleas, reversing a judgment of the Municipal Court of Cincinnati for the plaintiff. The action was instituted by the plaintiff to recover from the defendant the cost of repairs to plaintiff's automobile which the defendant agreed to pay. The damage to plaintiff's automobile was caused by the son of the defendant, to whom the father loaned his automobile in order that the son might take "his girl" to the court house "to arrange for a marriage license." It appears that the defendant went to a garage, where the plaintiff, the defendant, his son and a police officer were discussing the collision and damage to plaintiff's automobile. There were no threats of arrest, or suit. The defendant, however, told the plaintiff to have the automobile repaired and he, the defendant, would pay the cost of such repairs. The plaintiff stated he had called a repairman to come and get the automobile. The defendant said he would prefer another repairman, but since plaintiff had employed one, would make no objection to the one selected by plaintiff, and that he, the defendant, would pay the costs of such repairs. The defendant, later in the day being advised by plaintiff that the repairman selected by plaintiff had not yet presented an estimate of such repairs, stated to plaintiff that "he was not interested in it any more." The repairs were made by the repairman selected by plaintiff and the costs of such repairs were paid by plaintiff, for which amount plaintiff recovered judgment against defendant in the Municipal Court of Cincinnati. The defendant now claims that the judgment of reversal by the Common Pleas Court is correct upon the basis (1) that the agreement of the defendant to *Page 544 pay was not in writing; (2) that there was no consideration for the defendant's promise. The defendant admits he gave his son permission to use his automobile, and stated further: "Q. Whom did you have the conversation with? A. With the officers. They came to me and said `Now, we don't want to arrest your boy.' I won't say sure whether they told me he didn't have a driver's license on him or he did. It was figured we don't want to arrest the boy but this man wants the damages paid for. I asked who was at fault. It was the boy's says he. The officers says `it is his fault, he run into him.' He had a signal device on his machine that he operated by hand on the windshield. I am not acquainted with that. I made the simple statement if it is our fault we will pay for it." The son was 23 years old. He had no driver's license upon his person. The credibility of the witnesses was for the trial court. There is evidence that the defendant made a direct promise to the plaintiff to pay for the cost of repairs. This is not a guaranty and such promise is not covered by the statute of frauds. 19 Ohio Jurisprudence, 559. On the question of consideration, there is evidence that the collision was caused by the fault of the defendant's son; that the son was subject to arrest for failure to possess a driver's license while operating the automobile; and that, although no actual threats of arrest were made, a police officer was present and remained with the parties until an amicable agreement was reached by them. There are circumstances under which an owner of a motor vehicle has been held liable for injuries caused by its use when entrusted to a person known to be incompetent to properly operate *Page 545 the same. Williamson v. Eclipse Motor Lines, Inc., 145 Ohio St. 467, 62 N.E.2d 339. There is no evidence sustaining the conclusion that such circumstances were involved in the instant case. The real question here presented is whether there is any substantial evidence showing that the plaintiff suffered any detriment or the defendant received any advantage or is guilty of conduct which would estop him from denying liability. Certainly, there is no evidence that the plaintiff relinquished any legal rights he may have possessed. He did not bind himself not to sue or prosecute. Any rights he possessed when the conference in the garage occurred were still possessed by plaintiff when the defendant, on the same day, refused to be bound by his direct promise to plaintiff to pay the costs of repairs. Did the defendant do or say anything which caused the plaintiff to change his position, resulting in injury or damage to plaintiff? It is to be borne in mind that according to the plaintiff's own testimony before he incurred any expense he was advised by the defendant that "he was not interested in it any more." Again, according to plaintiff's own testimony, he told defendant he would secure an estimate of the costs of repair and submit it to defendant, and if this was not satisfactory the defendant could have his own "man" look at the automobile and make his own estimate. It is apparent, therefore, that the plaintiff incurred no expense before he was notified defendant had rescinded his offer to pay the costs. Plaintiff, before any statement was made by defendant, had ordered his repair man Sieve Lange to come for the automobile. There is apparent in the evidence, therefore, no facts justifying a conclusion that plaintiff changed his position by reason of anything the defendant said *Page 546 or did. Plaintiff relied upon the bare promise of the defendant to pay the costs of repairs. This promise was entirely unsupported by any consideration, consisting either of benefit to the defendant or detriment to plaintiff. The promise of defendant having been rescinded by defendant before the plaintiff had incurred any expense in reliance upon the promise, no element of estoppel appears in the evidence. For these reasons, the judgment of the Court of Common Pleas, reversing the judgment of the Municipal Court of Cincinnati, and rendering judgment for the defendant, is affirmed. Judgment affirmed. HILDEBRANDT, P.J., MATTHEWS and ROSS, JJ., concur in syllabus, opinion and judgment. *Page 1

2016-07-06 06:42:14.751371+00

OPINION *Page 2 {¶ 1} Appellant, Henry A. Selinsky, Inc. appeals the judgment of the Canton Municipal Court overturning the magistrate's report and finding for Appellee, Engineered Polymers, Corp. STATEMENT OF THE FACTS AND THE CASE {¶ 2} Appellee purchased four pieces of machinery from a plant in Hudson, Ohio to be transported to Appellee in Minnesota. Appellee initially contacted Appellant for a quote to load and deliver the machinery to Minnesota. (Trial Exhibit C). After receiving the first quote of $3,455.00, Appellant then provided Appellee with a second quote to "rig your equipment on trucks of others" for $1,100.00. (Trial Exhibit D). Appellee accepted the second quote and drew up a purchase order that stated, "[r]ig load equipment purchased at Little Tikes auction." (Trial Exhibit E). {¶ 3} On September 1, 2006, Appellant used a forklift to place the machinery on a truck arranged by Appellee. Appellant did not package the machinery before loading it onto the truck, nor did Appellant secure the machinery in the truck. The driver of the truck tied the equipment down and departed. {¶ 4} When the machinery arrived in Minnesota, Appellee found the machinery had been damaged during transport. Appellee could not use the machinery for its intended purposes, but was able to sell the equipment for scrap. {¶ 5} On January 3, 2007, Appellee filed a small claims action in Canton Municipal Court claiming breach of contract for Appellant's failure to "rig" the machinery in the truck per the requirements of the purchase order. Appellant filed a counterclaim alleging breach of contract and money owed. *Page 3 {¶ 6} A trial was held before the magistrate on February 22, 2007. The magistrate found in favor of Appellant, finding no breach of contract. (Magistrate's Report, Feb. 22, 2007). He specifically held Appellant was not responsible for the damage to the property because he found, "rig in this instance to mean load." Id. The driver was responsible for securing the load and there was no evidence that Appellant damaged the load. Id. It recommended that judgment be awarded to Appellant on its counterclaim in the amount of $1100.00. {¶ 7} On March 8, 2007, Appellee filed objections to the magistrate's report arguing the magistrate erred as a matter of law when it interpreted the term "rig." It did not file a transcript of the proceeding with its objections. The trial court issued its judgment entry on March 26, 2007, upholding Appellee's objections and vacating the magistrate's report. It specifically held: {¶ 8} "The court finds that Selinsky breached its contractual obligations to rig the equipment, that its breach caused the cargo to be damaged and that the damages exceeded the $3,000 monetary limit of the Small Claims Division." {¶ 9} It is from this decision Appellant now appeals. Appellant raises one Assignment of Error: {¶ 10} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERTURNED THE MAGISTRATE'S DECISION FINDING THAT APPELLANT DID NOT BREACH THE CONTRACT." *Page 4 I. {¶ 11} Appellant argues that the trial court abused its discretion when it sustained Appellee's objections to the magistrate's report without reviewing the transcript. We agree. {¶ 12} As stated above, Appellee did not provide the trial court with a transcript of the proceedings when it filed its objections to the magistrate report. Appellee argues that it was not required to file a transcript because the issue presented was a legal question, not a factual one. Specifically, Appellee states the issue in this matter is of contract interpretation — whether the terms "rig and load" required Appellant to secure the machinery or to just place the machinery in the truck. {¶ 13} Civ. R. 53(D)(3)(b)(iii) provides for proceedings in matters referred to magistrates, and states in pertinent part: {¶ 14} "(3) Magistrate's decision; objections to magistrate's decision. {¶ 15} "(iii) Objection to magistrate's factual finding; transcript or affidavit. An objection to a factual finding, whether or not specifically designated as a finding of fact under Civ. R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available. With leave of court, alternative technology or manner of reviewing the relevant evidence may be considered. The objecting party shall file the transcript or affidavit with the court within thirty days after filing objections unless the court extends the time in writing for preparation of the transcript or other good cause. If a party files timely objections prior to the date on which a transcript is prepared, the party may seek leave of court to supplement the objections. . . ." *Page 5 {¶ 16} The issue before us is whether the interpretation of "rig and load" is a question of law or question of fact. If the contract is clear and unambiguous, its interpretation is a matter of law, and there is no issue of fact to determine. Inland Refuse Transfer Co. v.Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio St.3d 321, 322,15 OBR 448, 474 N.E.2d 271, citing Alexander v. Buckeye Pipe LineCo. (1978), 53 Ohio St.2d 241, 7 O.O.3d 403, 374 N.E.2d 146. However, where the contract language is reasonably susceptible of more than one interpretation, the meaning of the ambiguous language is a question of fact. Ohio Historical Soc. v. Gen. Maint. Eng. Co. (1989),65 Ohio App.3d 139, 146, 583 N.E.2d 340. {¶ 17} "Only when the language of a contract is unclear or ambiguous, or when the circumstances surrounding the agreement invest the language of the contract with a special meaning will extrinsic evidence be considered in an effort to give effect to the parties' intentions."Shifrin v. Forest City Ent., Inc. (1992), 64 Ohio St.3d 635, 638,597 N.E.2d 499, syllabus. Such evidence may include evidence of trade usage within the industry in question. Staden v. Smith (Feb. 20, 2002), 9th Dist. No. 01CA007886, at *6. Extrinsic evidence of a general custom or trade usage is admissible to show that the parties to the contract employed terms which have a special meaning within a particular trade or industry which are not reflected on the face of the agreement.Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241,374 N.E.2d 146, paragraph three of the syllabus. {¶ 18} While the term "rig" in and of itself is clear and unambiguous, we find that the circumstances surrounding the agreement give special meaning to the term "rig" that can only be clarified by permitting extrinsic evidence of the trade or industry usage *Page 6 of the term. In Appellee's attachment to its small claims complaint, it states, "Defendant was identified as one of the preferred riggers available to remove equipment from the auction site." (Jan. 3, 2007). Appellee initially contacted Appellant for a quote to load and deliver the machinery to Minnesota. (Trial Exhibit C). After receiving the first quote of $3,455.00, Appellant then provided Appellee with a second quote to "rig your equipment on trucks of others" for $1,100.00. (Trial Exhibit D). Appellee accepted the second quote and drew up a purchase order that stated, "[r]ig load equipment purchased at Little Tikes auction." (Trial Exhibit E). {¶ 19} In this case, we find the term "rig" to be reasonably susceptible to more than one interpretation based upon the usage of the term in the communications between the parties, therefore creating a question of fact as to the meaning of "rig." Pursuant to Civ. R. 53, Appellee was required to submit a transcript of the evidentiary hearing held before the magistrate when it filed its objections to the magistrate's decision. {¶ 20} Our review of the trial court's findings is limited to whether the trial court abused its discretion in adopting the magistrate's report when the party objecting to a magistrate's report fails to provide a transcript. State ex rel. Duncan v. Chippewa Twp.Trustees (1995), 73 Ohio St.3d 728, 730, 654 N.E.2d 1254. In order to find an abuse of discretion, we must look at the totality of the circumstances in the case sub judice and determine whether the trial court acted unreasonably, arbitrarily or unconscionably and there was not merely an error of law or judgment. Blakemore v. Blakemore (1983),5 Ohio St.3d 217. When the objecting party fails to provide a transcript of the original hearing before the magistrate for the trial court's review, the magistrate's findings of fact *Page 7 are considered established and may not be attacked on appeal. Doane v.Doane (May 2, 2001),5th Dist. App. No. 00CA21, 2001 WL 474267. Accordingly, we review this matter only to analyze whether the trial court abused its discretion in reaching specific legal conclusions based upon the established facts. Sochor v. Smith (June 28, 2000), 5th Dist. No. 00CA00001. {¶ 21} Pursuant to the above-mentioned standard of review, we find that upon application of the magistrate's findings of fact, the trial court abused its discretion in reaching its legal conclusions that "rig" was not synonymous with "load." We also find trial court went further beyond the scope of its permissible review when it made the findings that Appellant's breach caused the cargo to be damaged and the damages exceeded $3000. (Judgment Entry, Mar. 26, 2007). {¶ 22} In order to present a claim for breach of contract, Appellee must present evidence on several elements. Those elements include the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff. Doner v. Snapp (1994),98 Ohio App.3d 597, 649 N.E.2d 42. Based on the evidence presented during the hearing, the magistrate found that the driver of the truck was responsible for securing the load safely and properly. (Magistrate's Report, Feb. 22, 2007). The magistrate further found there was no evidence Appellant damaged the load. Id. {¶ 23} Because Appellee did not file a transcript of the evidentiary hearing, the trial court abused its discretion when it made factual findings regarding breach of the contract and damages. {¶ 24} As such, we sustain Appellant's Assignment of Error. *Page 8 {¶ 25} The judgment of the Canton Municipal Court is reversed and pursuant to App. R. 12(B), final judgment is entered in favor of Appellant according to the Feb. 22, 2007 Magistrate's Report with damages in the amount of $1100.00, plus interest at the statutory rate from March 26, 2007 and costs. Delaney, J. Hoffman, P.J. concur Edwards, J. concurs separately *Page 9

2016-07-05 20:49:59.897096+00

Rogers

The defendant, L.L. Lawrence, was convicted and sentenced for violating an ordinance of the Police Jury of Rapides Parish, dated January 15, 1935. Defendant appealed, relying on bills of exception which he reserved to the overruling by the trial judge of his motions to quash, for a new trial, and in arrest of judgment; each of the motions setting up the unconstitutionality and illegality of the ordinance. The issues in the case are identical with the issues in the case of State v. Roy Reed (La.Sup.) 177 So. 252, this day decided. For the reasons assigned in the case of State v. Reed, the conviction and sentence herein appealed from are annulled, the motion to quash is sustained, and defendant is ordered discharged. HIGGINS, J., takes no part. *Page 411

2016-07-06 06:42:15.653882+00

OPINION {¶ 1} Appellant, Brent Blythe, appeals the judgment of the Allen County Common Pleas Court determining the de facto termination date of Appellant's marriage, and the determination to give Appellee a property interest in certain farm machinery. Appellant claims that the trial court abused its discretion in making both rulings. After reviewing the entire record, we find that the trial court did not abuse its discretion with regards to the termination date of the marriage; however, we do find that the trial court erred in calculating the percentage of the property that was the non-marital separate property of Appellant. Therefore, we overrule Appellant's first assignment of error, sustain in part his second assignment of error, and reverse in part the judgment of the trial court. {¶ 2} Appellant and Plaintiff-Appellee, Ann Blythe, were married in March 1992. During the marriage, Appellant was a farmer and Appellee worked as a respiratory therapist. Each year the parties would take out an operating loan to pay for the maintenance and operation of the farm. Because Appellant's income would not be realized until the end of the year, Appellee's income was used to pay the monthly living expenses. The operating loan was then paid off in full at the end of each year, and the remaining proceeds from the farming activities were used to either pay off large household expenses or reinvested into farm land and equipment. {¶ 3} On April 3, 2002, Appellee filed a compliant for divorce. This complaint was subsequently dismissed as the parties attempted to reconcile; however, the parties were unable to reconcile and another complaint for divorce was filed on April 24, 2002. {¶ 4} In March 2003, the trial court determined that the parties were incompatible and granted a divorce. As part of its judgment, the trial court held that, for the purposes of the division of marital assets, the economic relationship of the parties should severed as of March 2002. Further, the court found that certain pieces of the farm equipment were at least partially marital property and should be distributed between the parties proportionately. It is from this judgment that Appellant appeals presenting two assignments of error for our review. Assignment of Error I The trial court erred in finding the de facto termination dateof the marriage to be March, 2002. {¶ 5} In the first assignment of error, Appellant claims the trial court erred in setting March 2002 as the de facto termination date of the parties' marriage. Appellant maintains that having the economic ties severed in March 2002 caused an inequitable distribution of the marital assets. {¶ 6} For the purposes of dividing and valuing marital property, the date of the final divorce hearing is normally used as the termination date of the marriage.1 However, the trial court has the discretion to set a de facto date of termination of the marriage at an earlier time.2 The decision of the trial court to use a de facto date rather than the date of the final hearing is within its sound discretion and will not be disturbed on appeal absent an abuse of discretion.3 An abuse of discretion will only be found where the decision is unreasonable, arbitrary, or unconscionable.4 {¶ 7} Herein, the trial court made the finding that Appellant began using the proceeds of the operating loan to pay his monthly living expenses. This was demonstrated by the fact that the operating loan was $35,000 more than it had ever been in the past. Further, Appellant admitted to using some of the operating loan to prepay farm expenses. Both of these uses of the operating loan were done after March 2002, and both were outside of the parties' normal practice regarding the operating loan. {¶ 8} The trial court found March 2002 to be the termination date of the parties' economic relationship, because that is when Appellant began to use the operating loan proceeds for his own living and farming expenses. Further, the trial court held that all of the profits as well as the debts which accrued to the farm after March 2002 were the sole property of Appellant. {¶ 9} We cannot say that the trial court abused its discretion in severing the economic ties of the parties as of March 2002. It is clear that Appellant began using the farm's operating loan in a manner which solely benefited himself. Further, the court granted Appellant the sole ownership of all the profits he generated from the farm as well as the debts. Accordingly, Appellant's first assignment of error is overruled. Assignment of Error II The trial court erred in failing to properly determine the separateinterest of Defendant/Appellant in certain farm equipment and machinery. {¶ 10} In the second assignment of error, Appellant contends the trial court wrongfully found that the 1992 32 Foot Chamberlain hopper trailer ("trailer") was entirely marital property. He maintains that he purchased the trailer with money he received by selling six wagons his father had given to him as a gift. Further, he asserts the trial court erred in finding that only thirteen percent of the Kill Bros. 1800 grain cart ("1800 cart") was non marital property. {¶ 11} Property acquired during marriage is presumed to be marital in nature unless it can be shown to be separate.5 The burden is on the party seeking to have certain property declared separate to establish by a preponderance of the evidence that such property is not martial in nature.6 In deciding whether a party has met this burden, a trial court is given broad discretion.7 A judgment that property either is or is not marital in nature will be overturned only upon the trial court's abuse of its discretion.8 {¶ 12} The court found that Appellant had failed to meet his burden of proving the trailer, bought during the marriage, was non marital property. At trial, Appellant was unable to establish when he sold the wagons his father gave him, how much he sold them for, and when, if ever, he had applied any of the amount he received for the wagons to the purchase price of the trailer. Having reviewed the record, we can not find that the trial court's decision regarding the trailer was unreasonable, arbitrary, or unconscionable. {¶ 13} Appellant also complains that the trial court erroneously calculated the amount of his premarital interest in the 1800 cart. During the marriage, Appellant bought the 1800 cart for $11,500. Appellant used an older Kill Bros. 800 grain cart ("800 cart"), which he had purchased prior to the marriage, and which was owned jointly by himself and his father, as a trade in. He received $3,000 for the trade in and applied that amount towards the purchase of the 1800 cart. {¶ 14} The trial court found that his father's half of the 800 cart was a gift to Appellant and non marital property. However, the trial court failed to account for Appellant's original half of the 800 cart. The total trade in value of the 800 cart represents twenty six percent of the total purchase price of the 1800 cart. However, the trial court only found that thirteen percent of the trade in value was non marital property. {¶ 15} Since the 800 cart was purchased in 1985, before the marriage, Appellant's entire share of the cart was non marital property. Accordingly, the full amount from the 800 cart that was applied towards the purchase of the 1800 cart was non marital property. {¶ 16} Reviewing the record, we find that it was unreasonable for the trial court to fail to include Appellant's premarital interest in the 800 cart in his non marital property. Therefore, the court erred in this calculation and, consequently, abused its discretion in not finding that twenty six percent of the $7,200.00 value of the cart was the separate property of Appellant. {¶ 17} Accordingly, we must overrule in part and sustain in part Appellant's second assignment of error, and we reverse the judgment of the trial court to that extent only. {¶ 18} Having found error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm in part and reverse in part the judgment of the trial court and remand the matter for further proceedings consistent with this opinion. Judgment affirmed in part, reversed in part and cause remanded. Bryant, P.J., and Cupp, J., concur. 1 R.C. 3105.171(A)(2)(a); Crouso v. Crouso, 3rd Dist. No. 14-02-04, 2002-Ohio-3765, at ¶ 6. 2 R.C. 3105.171(A)(2)(b); Crouso at ¶ 6. 3 Berish v. Berish (1982), 69 Ohio St.2d 318, 321; Fisher v. Fisher (Mar. 22, 2002), 3rd Dist. No. 7-01-12, 2002-Ohio-1297, unreported. 4 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. 5 R.C. 3105.171(A)(3)(a); Lust v. Lust, 3rd Dist. No. 16-02-04, 2002-Ohio-3629, at ¶ 13. 6 Lust, at ¶ 13, Okos v. Okos (2000), 137 Ohio App.3d 563,570; Peck v. Peck (1994), 96 Ohio App.3d 731, 734. 7 Leathem v. Leathem (1994), 94 Ohio App.3d 470, 472-473. 8 Id.

2016-07-06 06:42:15.709502+00

DECISION {¶ 1} Relator, Sauder Woodworking Company, filed this original action requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order, which granted permanent total *Page 2 disability ("PTD") compensation to respondent, Paul D. Crocker ("claimant"), and ordering the commission to find that claimant is not entitled to such compensation. {¶ 2} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, including findings of fact and conclusions of law, recommending that this court deny the requested writ. (Attached as Appendix A.) {¶ 3} Relator did not object to the magistrate's findings of fact, and we adopt them as our own, with one minor correction. The reference to "October 25, 2003" at ¶ 22 should read "April 25, 2003." That correction has no substantive impact on the magistrate's findings of fact or conclusions of law. {¶ 4} Relator submitted two objections to the magistrate's conclusions of law. First, relator argues that the magistrate erred in concluding that the commission could rely on the medical reports of Allan G. Clague, M.D., to support the granting of PTD benefits. However, we agree with the magistrate's analysis and conclusions on this issue. While Dr. Clague acknowledged that claimant's condition may improve, he unequivocally expressed his opinion that, despite these potential improvements, claimant is, and would remain, permanently and totally disabled. Therefore, we overrule relator's first objection. {¶ 5} Second, relator argues that the magistrate erred in failing to follow "the Supreme Court of Ohio's directive that the granting of [PTD] benefits should be a `compensation of last resort.'" In support, relator cites State ex rel. Wilson v. Indus. Comm. (1997), 80 Ohio St.3d 250,253, in which the Ohio Supreme Court stated: "We view permanent total disability compensation as compensation of last resort, to be *Page 3 awarded only when all reasonable avenues of accomplishing a return to sustained remunerative employment have failed." Relator's specific argument is that PTD benefits are not the "last resort" here because Dr. Clague's medical reports indicate that claimant's condition is improving, and because claimant has refused to participate in the vocational rehabilitation services relator has offered to him. {¶ 6} As reflected in our prior discussion, however, we reject relator's argument that the commission improperly relied on Dr. Clague's report. In addition, we note that the commission is the final evaluator of non-medical factors. State ex rel. Jackson v. Indus. Comm. (1997),79 Ohio St.3d 266. Having determined that claimant is permanently and totally disabled based on medical evidence alone, it was not an abuse of discretion for the commission to award PTD benefits without first requiring claimant to participate in rehabilitation. Therefore, we overrule relator's second objection. {¶ 7} Having overruled relator's objections and finding no error of law or other defect on the face of the magistrate's decision, this court adopts the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it, with the exception of the typographical correction noted above. In accordance with the magistrate's decision, the requested writ is denied. Objections overruled, writ of mandamus denied. BROWN and TYACK, JJ., concur. *Page 4 APPENDIX A MAGISTRATE'S DECISION IN MANDAMUS {¶ 8} Relator, Sauder Woodworking Company, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which granted permanent total *Page 5 disability ("PTD") compensation to respondent Paul D. Crocker ("claimant"), and ordering the commission to find that claimant is not entitled to that compensation. Findings of Fact: {¶ 9} 1. Claimant sustained an industrial injury while employed with relator, a self-insured employer under Ohio's workers' compensation laws. Claimant began his employment with relator in March 1993. Most of the work claimant performed involved repetitive motions. {¶ 10} 2. Around December 1998, claimant developed pain in his lower neck region. Because the neck pain increased over the next two months, on February 18, 1999, claimant saw his family physician who then referred him to a neurologist for diagnostic testing. February 18, 1999 is the official date of claimant's injury in this industrial claim. Relator initially certified the claim for "bilateral carpel tunnel syndrome." {¶ 11} 3. In 1999, claimant underwent carpal tunnel release surgery on both hands. {¶ 12} 4. Claimant's claim was subsequently allowed for "bilateral reflex sympathetic dystrophy, upper limb." {¶ 13} 5. Claimant returned to light duty work with relator following his carpal tunnel releases. However, around November 2000, he was taken off work by his doctor. Claimant began receiving temporary total disability ("TTD") compensation from relator. {¶ 14} 6. On January 15, 2003, claimant was examined at relator's request by Gregory A. Ornella, M.D., who specializes in occupational medicine. Dr. Ornella concluded that claimant's condition had reached maximum medical improvement ("MMI"). *Page 6 {¶ 15} 7. On February 3, 2003, relator moved to terminate TTD compensation based upon Dr. Ornella's January 15, 2003 report. {¶ 16} 8. On February 17, 2003, claimant's treating neurologist, Allan G. Clague, M.D., wrote to claimant's counsel indicating that, in his opinion, claimant had not reached MM I and expected significant improvement to occur over time. {¶ 17} 9. Claimant's counsel asked Dr. Clague to review Dr. Ornella's January 15, 2003 report and respond in writing. In his response dated February 28, 2003, Dr. Clague again reiterated that he expected claimant to continue to show further improvement of his underlying neurological condition and that the goal was to further reduce the pain and swelling in claimant's upper extremities and increase the functional use of his upper extremities. Dr. Clague again stated that claimant had not reached MMI. {¶ 18} 10. On February 26, 2003, claimant moved for an R.C. 4123.57(B) scheduled-loss award for the alleged loss of use of his fingers of the left and right hands. Claimant cited Dr. Ornella's January 15, 2003 report wherein he noted the significant lack of movement which claimant had in his fingers. {¶ 19} 11. Following a March 7, 2003 hearing, a district hearing officer ("DHO") issued an order denying relator's February 2003 motion seeking to terminate claimant's TTD compensation based upon the February 28, 2003 report of Dr. Clague. {¶ 20} 12. Relator administratively appealed the DHO's order of March 7, 2003. {¶ 21} 13. Following an April 25, 2003 hearing before a staff hearing officer ("SHO"), the prior DHO's order was vacated. The SHO determined that claimant had reached MMI based upon Dr. Ornella's January 15, 2003 report. *Page 7 {¶ 22} 14. On [April] 25, 2003, the same SHO who heard the appeal from the DHO's order of March 7, 2003, also sat as a DHO and heard claimant's February 26, 2003 motion seeking an award for loss of use of the fingers of his hands. Following the April 25, 2003 hearing, the DHO issued an order granting claimant's motion for loss of use based upon the January 15, 2003 report of Dr. Ornella. {¶ 23} 15. Relator administratively appealed the order which granted claimant the R.C. 4123.57(B) award. {¶ 24} 16. At relator's request, claimant was examined by Thomas E. Lieser, M.D., who specializes in occupational and environmental medicine. In his June 3, 2003 report, Dr. Lieser concluded that claimant demonstrated no functional use of the left digits two, three, four, and five as they remain in a fixed, rigid position at all joints: MP, PIP, and DIP. {¶ 25} 17. In a report dated June 10, 2003, Dr. Clague responded to Dr. Lieser's report stating that claimant does not have ankylosis of any of the distal or proximal interphalangeal joints of the fingers of either hands. {¶ 26} 18. Following a June 19, 2003 hearing on relator's administrative appeal from the DHO's order of April 25, 2003, an SHO issued an order that vacated the DHO's award based upon the June 10, 2003 report of Dr. Clague. {¶ 27} 19. Claimant filed an administrative appeal from the SHO's order of June 19, 2003 and, on November 5, 2003, a commission deputy heard claimant's administrative appeal and affirmed the prior SHO's order. As such, based upon the June 10, 2003 report of Dr. Clague, the commission denied claimant's motion requesting the loss of use award for the various digits. *Page 8 {¶ 28} 20. On August 13, 2003, claimant filed a mandamus action in this court. {¶ 29} 21. In a decision rendered August 25, 2005 in 04AP-820, this court adopted the decision of its magistrate. In so doing, this court applied State ex rel. Zamora v. Indus. Comm. (1989), 45 Ohio St.3d 17, and its progeny and determined that the commission was precluded from relying upon Dr. Clague's June 10, 2003 report when it denied claimant's loss of use award. As the magistrate noted, the commission had terminated claimant's TTD compensation based upon Dr. Ornella's opinion that the industrial injury had reached MMI. In so doing, the commission had implicitly rejected the opinions expressed in Dr. Clague's February 17 and 28, 2003 reports that claimant's industrial injury had not reached MMI. Thereafter, noting that Dr. Clague's June 10, 2003 report was not in existence when the commission terminated TTD compensation based upon Dr. Ornella's report, this court, nevertheless, concluded that Zamora applied. This court noted that Dr. Clague's June 10, 2003 report simply reiterated the findings contained in his February 17 and 28, 2003 reports regarding MMI. Accordingly, the MMI opinion of Dr. Clague in his June 10, 2003 report had been effectively rejected when the commission accepted Dr. Ornella's opinion regarding MMI. {¶ 30} 22. This court's decision in 04AP-820 was appealed to the Supreme Court of Ohio as of right. In State ex rel. Crocker v. Indus.Comm., 111 Ohio St.3d 202, 2006-Ohio-5483, at ¶ 15 ("Crocker I"), the Supreme Court affirmed this court's decision and specifically noted: * * * In all three reports, Dr. Clague consistently issued the same opinion on the subject of further improvement: Crocker would get better with additional treatment. When Clague made that statement in February, it was deemed un-persuasive, and temporary total disability compensation was accordingly denied. When Dr. Clague made the statement in *Page 9 June, the commission suddenly deemed it persuasive and used it to deny Crocker's loss-of-use application. This result is unfair and inappropriate. Dr. Clague's opinion on future improvement is either persuasive or it is not. The commission cannot have it both ways, particularly to Crocker's dual detriment. {¶ 31} 23. In the meantime, claimant filed an application for PTD compensation on February 6, 2004, stating that he had not worked in any capacity since November 2000. In support of his application for PTD compensation, claimant submitted three new reports from Dr. Clague. In those reports dated June 26, November 24, 2003, and January 5, 2004, Dr. Clague continued to note that claimant was experiencing slight improvements in his ability to move his fingers. However, in spite of the fact that Dr. Clague continued to be of the opinion that claimant would experience some improvement in his condition, a review of his June 26, November 24, 2003, and January 5, 2004 reports indicate that claimant's condition essentially remained the same. Specifically, the magistrate notes that Dr. Clague's findings upon physical examination remained essentially unchanged. Furthermore, Dr. Clague consistently noted that his objective with regards to his care of claimant continued to be attempting to reduce the intensity of his pain and discomfort as well as to reduce the swelling in his hands and to increase the mobility of his extremities. In spite of his goal, Dr. Clague noted, in all three reports: The prognosis in all such cases is poor and I expect this to be a totally disabling condition for the remainder of his lifetime. Certainly on the basis of his current clinical history and neurological examination Mr. Paul D. Crocker is totally and permanently medically disabled from carrying out any form of gainful employment for which he is qualified by education, training and/or experience. I never expect him to be able to carry out any type of gainful, productive activity throughout the remainder of his lifetime. *Page 10 {¶ 32} 24. Claimant was evaluated at the request of relator by Susan Rice, M.D., and at the request of the commission, by Harvey A. Popovich, M.D. Dr. Rice concluded that claimant was permanently disabled from his former occupation and that he would pose a vocational challenge; however, Dr. Rice concluded that claimant would be capable of participating in a vocational retraining program and believed that he could perform a job such as telemarketing from home with assistive technology. Dr. Popovich concluded that claimant's conditions had reached MMI, assessed a 58 percent whole person impairment, and concluded that claimant could perform at a sedentary level in spite of the fact that Dr. Popovich made the following findings: Mr. Crocker indicates he is unable to move his left shoulder, elbow, wrist and fingers two, three, four, and five. There is slight movement in the left thumb but the left hand and its digits are swollen and cool. Examination of the right upper extremity reveals normal range of motion in the thumb, index and middle fingers but ankylosis and tenderness of the fourth and fifth digits. Sensory testing is normal but strength is diminished bilaterally. Mr. Crocker's activities of daily living including work are limited by the allowed conditions of this claim. {¶ 33} 25. Three vocational reports were submitted as evidence. Two of the evaluators concluded that claimant was a poor candidate for rehabilitation and retraining and that it was unreasonable to expect that he would ever be able to return to work while one evaluator opined that with appropriate vocational retraining, claimant should be able to return to some form of sustained remunerative employment. {¶ 34} 26. Claimant's application seeking PTD compensation was heard before an SHO on September 21, 2004, and was granted. The SHO relied upon the June 26, November 24, 2003, and January 5, 2004 reports of Dr. Clague, and concluded: *Page 11 This Staff Hearing Officer does find the opinion of Allan G. Clague, M.D., a clinical neurologist specializing in the treatment of Reflex Sympathetic Dystrophy, to be persuasive. Therefore, after hearing, this adjudicator finds that the medical impairment resulting from the allowed conditions in claim #99-381344 prohibits the injured worker's return to his former position of employment, as well as prohibits the injured worker from performing any sustained remunerative employment. Therefore, the injured worker shall be, and hereby is, found to be permanently and totally disabled, without reference to the vocational factors listed in Paragraph (B) (3) of Industrial Commission Rule 4121-3-34, pursuant to Industrial Commission Rule 4121-3-34 (D) (2) (a). * * The starting date of permanent and total disability compensation is based upon the June 26, 2000 [sic] report from the injured worker's attending neurologist, Allan G. Clague, M.D. {¶ 35} 27. Relator's request for reconsideration was denied by order of the commission mailed December 8, 2004. {¶ 36} 28. Thereafter, relator filed the instant mandamus action in this court. Conclusions of Law: {¶ 37} In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, relator must show a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141. A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76. On the other hand, where the record contains some evidence to support the commission's findings, there has been no abuse of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry *Page 12 Co. (1987), 29 Ohio St.3d 56. Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder. State ex rel. Teece v. Indus. Comm. (1981),68 Ohio St.2d 165. {¶ 38} The relevant inquiry in a determination of permanent total disability is claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic v. Indus. Comm. (1994),69 Ohio St.3d 693. Generally, in making this determination, the commission must consider not only medical impairments but, also, the claimant's age, education, work record and other relevant nonmedical factors. State exrel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. Thus, a claimant's medical capacity to work is not dispositive if the claimant's nonmedical factors foreclose employability. State ex rel. Gay v.Mihm (1994), 68 Ohio St.3d 315. The commission must also specify in its order what evidence has been relied upon and briefly explain the reasoning for its decision. State ex rel. Noll v. Indus. Comm. (1991),57 Ohio St.3d 203. {¶ 39} In this mandamus action, relator contends that the June 26, November 24, 2003, and January 5, 2004 reports of Dr. Clague do not constitute "some evidence" upon which the commission could rely for two reasons: (1) pursuant to the decision in Crocker I, the reports of Dr. Clague could not be relied upon to support an award of PTD compensation as it is "fundamentally inconsistent for the Court to conclude that Dr. Clague's opinions can be accepted for some purposes, but not for others"; and (2) because Dr. Clague continued to be of the opinion that claimant's condition was improving and would continue to improve, those reports cannot support an award of PTD compensation. Relator also argues that PTD compensation should be denied because claimant has not pursued rehabilitation. For the reasons that follow, it is this *Page 13 magistrate's conclusion that relator's arguments lack merit and relator's request for a writ of mandamus should be denied. {¶ 40} Relator's first argument is that the reports of Dr. Clague upon which the commission relied to award claimant PTD compensation should have been removed from consideration pursuant to the court's application of Zamora in Crocker I. However, a simple review of the Supreme Court's final paragraph in Crocker I demonstrates that relator's argument lacks merit. As indicated previously, the Crocker I court stated: Contrary to appellants' representation, this result does not mean that once a doctor's opinion has been rejected, the commission can never rely on any future report from that doctor again. What the commission cannot do is accept the same doctor's opinion on one matter that it previously rejected. In this case, the uniformity of issues rendered the commission's reliance on Dr. Clague's June 10, 2003 report an abuse of discretion. Id. at ¶ 16. {¶ 41} When the commission determined that claimant's allowed conditions had reached MMI, the commission relied upon the January 15, 2003 report of Dr. Ornella. As such, the commission rejected the February 17 and 28, 2003 reports of Dr. Clague. Thereafter, in later determining that claimant was not entitled to an award for the loss of use of his hands, the commission relied upon Dr. Clague's June 10, 2003 report which essentially reiterated the conclusion he had made in the February 17 and 28, 2003 reports. In Crocker I, the court held that because the commission had rejected Dr. Clague's opinion that claimant was not at MMI but would improve when it determined that claimant had reached MMI, the commission could not, thereafter, rely upon that same opinion, expressed in his June 10, 2003 report, to find that claimant did not have ankylosis and that his condition would improve when denying him an award for loss of *Page 14 use of his hands. As the court noted, Dr. Clague had expressed the same opinion in all three reports and the commission could not reject that opinion at one level to terminate TTD compensation and then accept that same opinion later in denying him a loss of use award. {¶ 42} In examining all six reports from Dr. Clague, the magistrate specifically notes that in the February 17, 28, and June 10, 2003 reports, Dr. Clague never stated an opinion as to whether or not claimant was permanently and totally disabled or whether or not claimant would be able to return to any sustained remunerative employment. Instead, he opined that claimant had not reached MMI. In the later reports from Dr. Clague upon which the commission relied in granting him PTD compensation, Dr. Clague opined, for the first time, that claimant was permanently and totally disabled and unable to return to any sustained remunerative employment. As such, Dr. Clague rendered an opinion in those latter three reports which he had not indicated in the previous reports which the court found had been rejected by the commission. Zamora prohibits the commission from relying on a medical report that the commission had earlier found unpersuasive and is properly invoked when the commission tries to revive evidence that was previously deemed unpersuasive. When the Supreme Court appliedZamora in Crocker I, the court specifically noted that the third report of Dr. Clague dated June 10, 2003, expressed the exact same opinion which the commission had earlier rejected. For that reason, the court found that the principles espoused in Zamora did apply and that the commission could not rely upon that report when the opinion expressed therein had previously been rejected in earlier reports. *Page 15 {¶ 43} In the present case, in relying upon the latter three reports of Dr. Clague, the commission relied upon an opinion of Dr. Clague which he had not previously expressed. As such, that opinion had not previously been rejected by the commission and relator's argument thatZamora applied in this situation to bar those reports lacks merit. {¶ 44} Relator also argues that the reports of Dr. Clague upon which the commission relied in granting claimant PTD compensation do not constitute some evidence because Dr. Clague opined, in all three reports, that claimant's condition would continue to improve. Relator argues that, because Dr. Clague continued to opine that claimant's condition would improve, Dr. Clague was really saying that claimant's condition was not permanent. Therefore, relator contends that the commission abused its discretion by relying upon those reports. {¶ 45} In the SHO's order awarding claimant PTD compensation, the commission recognized that Dr. Clague continued to treat claimant because he believed that claimant's condition would continue to improve. Specifically, the commission's order notes the following: Dr. Clague then stated that his "objective in the care and treatment of Mr. Crocker continues to be that of attempting to reduce the intensity of his pain and discomfort, as well as to reduce the swelling in the hands and to increase the mobility of his extremities". However, unfortunately, Dr. Clague also stated that "the prognosis in all such cases is poor and I expect this to be a totally disabling condition for the remainder of his lifetime. Certainly, on the basis of his current clinical history and neurological examination, Mr. Paul D. Crocker is totally and permanently medically disabled from carrying out any form of gainful employment for which he is qualified by education, training and/or experience. I never expect him to be able to carry out any type of gainful, productive activity, throughout the remainder *Page 16 of his lifetime." The aforesaid statement by Dr. Clague is a reiteration of the same state-ment from his prior narrative reports of November 24, 2003 and June 23, 2003. {¶ 46} The improvement that Dr. Clague was anticipating was minimal and directed more at increasing his comfort and not his functional abilities. The magistrate finds that this type of minimal improvement directed at increasing comfort does not invalidate the doctor's opinion that the claimant is permanently and totally disabled and unable to perform any sustained remunerative employment. Furthermore, a review of all three reports of Dr. Clague upon which the commission relied to grant him PTD compensation reveals that claimant's condition remained virtually unchanged in spite of ongoing treatment. In the fifth paragraph of all three reports, Dr. Clague noted his physical findings upon examination. Looking at those findings, which were essentially identical, the magistrate finds that the commission did not misinterpret Dr. Clague's reports and did not abuse its discretion when it relied upon those reports. {¶ 47} Lastly, relator points out that, at the hearing, vocational rehabilitation services were offered to claimant by relator, but claimant indicated that he was not willing to participate. Because claimant refused to participate in rehabilitation, relator contends that PTD compensation should be denied. See State ex rel. Bowling v. Natl.Can Corp. (1996), 77 Ohio St.3d 148. {¶ 48} Claimant responds by noting that the commission determined that he was permanently and totally disabled based solely upon the medical evidence without consideration to the nonmedical disability factors pursuant to State ex rel. Galion Mfg. Div. Dresser Industries, Inc. v.Haygood (1991), 60 Ohio St.3d 38. As such, claimant argues that the commission did not need to consider claimant's rehabilitation potential. *Page 17 {¶ 49} In the present case, vocational rehabilitation was offered and refused late in the game at a time when claimant's doctor opined that he was incapable of performing any sustained remunerative employment. The commission relied upon this evidence and concluded that claimant could not perform sustained remunerative employment. {¶ 50} As such, there was nothing to be gained from referring claimant for rehabilitation — the commission determined that there were no jobs claimant could perform. As such, the magistrate finds this argument not well-taken. {¶ 51} Based on the foregoing, it is this magistrate's conclusion that relator has not demonstrated that the commission abused its discretion in relying upon the reports of Dr. Clague to find that claimant was entitled to PTD compensation and this court should deny relator's request for a writ of mandamus. *Page 1

2016-07-06 06:42:15.747954+00

OPINION {¶ 1} This is an appeal by appellee-appellant, Ohio Real Estate Appraiser Board ("board"), from a judgment of the Franklin County Court of Common Pleas, reversing an order of the board which determined that appellant-appellee, Robert A. Rickett, had violated provisions of Ohio R.C. Chapter 4763. {¶ 2} Appellee is a certified residential real estate appraiser, and has been in the appraisal business since 1969. He is currently the owner of an appraisal company, *Page 2 Country Manor Management and Appraisals. On July 20, 2001, an individual employed by appellee performed an appraisal of property located at 1365 Shuster Road, Piketon, Ohio. The subject property consists of a manufactured home, located in a residential zoned area, and described as having a 1,536 square foot improvement consisting of six rooms, three bedrooms, and two baths. {¶ 3} On July 24, 2001, appellee, as the supervisory appraiser, signed off on the appraisal report. Also on that date, the property owners submitted to the Pike County Auditor's Office an "Application to Surrender Manufactured Home Title For Conversion To Real Estate." {¶ 4} In March 2003, a citizen's complaint was made to the board regarding the appraisal report issued by appellee, alleging that appellee had improperly appraised the property. Adam Tonti, an investigative supervisor with the Division of Real Estate and Professional Licensing (hereafter "division"), investigated the allegations surrounding the complaint. {¶ 5} On June 26, 2006, the division sent a notice of opportunity and hearing to appellee, alleging he had violated provisions of Ohio R.C. Chapter 4763. More specifically, the notice alleged that appellee, in preparing an appraisal report for the property at issue, valued a manufactured home as real property "when in fact the manufactured home located on the Subject property was personal property as of the effective date of your appraisal report." The notice cited violations of R.C. 4763.11(G)(5), (G)(6), (G)(7), and/or (G)(8). {¶ 6} A hearing was conducted before a board hearing examiner on August 17, 2006. The first witness for the state was Tonti, who testified that he conducted an *Page 3 investigation for the division to determine whether property located at 1365 Schuster Road, Piketon, Ohio, was personal property or real property. Tonti identified the state's Exhibit 3 as an appraisal report, dated July 20, 2001, prepared by appellee's appraiser, Laurie Cummings, and signed by appellee as the supervisory appraiser. Tonti testified that the entries in the exhibit were consistent with a description of real property, and that there were no entries indicating that the residence constituted personal property. After contacting the Pike County Auditor's Office, Tonti reviewed a copy of a registration for a manufactured home, as well as an application made by the property owner to have the manufactured home converted to real estate. The application to surrender title for conversion to real estate was filed July 24, 2001, with the names Amanda Entler and Bobby Entler listed as owners. {¶ 7} Appellee testified on his own behalf, and stated that Cummings performed the inspection of the subject property on July 20, 2001. Following the appraisal, appellee conducted a desk review and signed as the supervisor appraiser on July 24, 2001. In his review of the property, appellee determined the manufactured home was part of the real estate because it was bolted down, and he stated that the appraisal report would not have been accurate had the property been listed as other than real estate. Appellee further testified that he did not sign off on the appraisal report until after he had received documentation indicating that the Ohio Bureau of Motor Vehicle Certificate of Title had been surrendered to the auditor's office on July 24, 2001. {¶ 8} Appellee acknowledged there was an error contained in the report; specifically, a check mark which had been placed in a "no" box next to "manufactured housing" should have been placed in the box marked "yes." Appellee testified that his *Page 4 wife typed the information on the document, but he acknowledged it was his responsibility to find and correct such error. {¶ 9} On December 28, 2006, the hearing examiner issued a report and recommendation, finding that the property at issue was not real property on the effective date of the appraisal report, but, rather, was personal property. The hearing examiner concluded that appellee was in violation of the eight charges as set forth in the notice of opportunity for hearing, including charges that he: (1) incorrectly employed recognized methods or techniques necessary to produce a credible appraisal report; (2) rendered appraisal services in a careless or negligent manner; (3) committed substantial errors of omission that significantly affected his appraisal report; (4) prepared a report that contained insufficient information to enable the intended users of the report to understand the report properly; and (5) completed an appraisal report that was misleading. {¶ 10} Appellee subsequently filed objections to the report of the hearing examiner, and the matter came for hearing before the board on February 9, 2007. The board issued an order on February 16, 2007, finding appellee in violation of the eight charges. On Charge No. 1, the board ordered appellee to complete 15 additional hours of education. The board imposed a civil penalty of $250 as to Charge No. 2, and issued a public reprimand against appellee as to Charge Nos. 3-8. {¶ 11} Appellee filed a notice of appeal with the trial court from the order of the board, and the matter came before the trial court upon briefs submitted by the parties. On August 3, 2007, the trial court issued a decision reversing the order of the board, finding in part that the board's order was not supported by reliable, probative, and substantial evidence. The trial court also found that the division had engaged in unreasonable delay *Page 5 in bringing the complaint against appellee, as more than three years had passed from the time the complaint was issued (March 3, 2003), until the time the division notified appellee of the charges and advised him of the opportunity for a hearing (June 26, 2006). Finally, the trial court found that such delay denied appellee due process of law. {¶ 12} On appeal, the board sets forth the following three assignments of error for this court's review: I. The lower court erred as a matter of law in finding it had jurisdiction to hear the administrative appeal. II. The lower court erred as a matter of law in finding the delay in bringing the charges was unreasonable and a violation of due process. III. The lower court abused its discretion when it found the Ohio Real Estate Appraiser Board's order is not supported by some reliable, probative, and substantial evidence. {¶ 13} Under the first assignment of error, the board asserts that the trial court lacked subject-matter jurisdiction over the case because the board failed to issue a certified copy of its order to appellee. In support, the board cites Hughes v. Ohio Dept. of Commerce,114 Ohio St.3d 47, 2007-Ohio-2877, in which the Ohio Supreme Court construed provisions of R.C. 119.09 regarding an agency's service of a final adjudication order. {¶ 14} R.C. 119.09 provides, in part, that, after an administrative agency order "is entered on its journal, the agency shall serve by certified mail, return receipt requested, upon the party affected thereby, a certified copy of the order and a statement of the time and method by which an appeal may be perfected." Further, "[a] copy of such order shall be mailed to the attorneys or other representatives of record representing the party." Id. *Page 6 {¶ 15} The board cites Hughes for the proposition that "[a]n administrative agency must strictly comply with the procedural requirements of R.C. 119.09 for serving the final order of adjudication upon the party affected by it[.]" Hughes, supra, at paragraph one of the syllabus. In its appellate brief, the board acknowledges that it failed to certify the adjudicative order it sent to appellee. Thus, the board's contention that this court must vacate the trial court's decision on the basis of Hughes is predicated upon its own failure to comply with statutory requirements. {¶ 16} The board, however, raises the issue of its deficiency regarding the certification for the first time in its appeal to this court. This court has previously held, under such circumstances, that an agency's failure to bring to the trial court's attention a claimed error based upon Hughes precludes it from raising that argument before this court. See Johns 3301 Toledo Café, Inc. v. Liquor Control Comm., Franklin App. No. 07AP-632, 2008-Ohio-394, at ¶ 42 ("[b]ecause appellant failed to raise a claim of error based on Hughes before the common pleas court, we find that appellant has forfeited this issue for appellate purposes"). See, also, Colonial Village Ltd. v. Washington Cty. Bd. ofRevision, 114 Ohio St.3d 493, 2007-Ohio-4641, at ¶ 15 ("[b]ecause the certification issue in Hughes had been raised in the lower tribunal, the issue was preserved; the failure to raise the jurisdictional issue at the [board of tax appeals] in this case means that it is barred"). {¶ 17} Based upon the above precedent, the board's first assignment of error is without merit and is overruled. {¶ 18} We will address the board's second and third assignments of error in inverse order. Under the third assignment of error, the board contends the trial court *Page 7 erred in holding that its order was not supported by reliable, probative, and substantial evidence. The board argues that the trial court, in reversing the order of the board, substituted its own judgment for that of the administrative agency. {¶ 19} R.C. 119.12 provides that a trial court, in reviewing an appeal of an administrative agency, "may affirm the order of the agency * * * if it finds * * * that the order is supported by reliable, probative, and substantial evidence and is in accordance with law." In the absence of such a finding, the court "may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law." Id. {¶ 20} The review of an administrative record by a court of common pleas "is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court `must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.'" Lies v. Ohio Veterinary Med.Bd. (1981), 2 Ohio App.3d 204, 207, quoting Andrews v. Bd. of LiquorControl (1955), 164 Ohio St. 275, 280. Although the common pleas court is to give due deference to the administrative agency's resolution of evidentiary conflicts, the agency's findings are not conclusive.Medcorp, Inc. v. Ohio Dept. of Job Family Serv., Franklin App. No. 07AP-312, 2008-Ohio-464, at ¶ 13. {¶ 21} This court's standard of review is more limited than that of the trial court. Franklin Cty. Sheriff v. Frazier, 174 Ohio App.3d 202,2007-Ohio-7001, at ¶ 17. Specifically, "[i]n reviewing the common pleas court's determination that reliable, probative, and substantial evidence does not support the board's order, the appellate *Page 8 court's role is limited to determining whether the common pleas court abused its discretion." Id. {¶ 22} As noted, the board adopted the report of the hearing examiner, who found violations of R.C. 4736.11(G). Specifically, the hearing examiner found violations based upon appellee's representation that the subject property was "real property when in fact the manufactured home located on the subject property was personal property as of the effective date of his appraisal report." {¶ 23} R.C. 4736.11(G) provides in part: The board shall take any disciplinary action authorized by this section against a certificate holder, registrant, or licensee who is found to have committed any of the following acts, omissions, or violations during the appraiser's certification, registration, or licensure: * * * (5) Violation of any of the standards for the development or communication of real estate appraisals set forth in this chapter and rules of the board; (6) Failure or refusal to exercise reasonable diligence in developing an appraisal, preparing an appraisal report, or communicating an appraisal; (7) Negligence or incompetence in developing an appraisal, in preparing an appraisal report, or in communicating an appraisal; (8) Willfully disregarding or violating this chapter or the rules adopted thereunder[.] {¶ 24} Thus, at issue is whether the trial court abused its discretion and improperly substituted its judgment for that of the board in finding the evidence failed to support the board's determination that appellee violated the above provisions because the appraisal *Page 9 incorrectly characterized the subject property as real estate. In making its determination, the board adopted in toto the hearing examiner's findings of fact and conclusions of law, in which the hearing examiner found the provisions of R.C. 5701.02(B)(2) to be dispositive. {¶ 25} R.C. 5701.02 sets forth definitions of "real property" and "manufactured or mobile home building" for taxation purposes. R.C. 5701.02(B)(2) provides as follows: "Manufactured or mobile home building" means a mobile home as defined in division (O) of section 4501.01 of the Revised Code or a manufactured home as defined in division (C)(4) of section 3781.06 of the Revised Code, if the home meets both of the following conditions: (a) The home is affixed to a permanent foundation as defined in division (C)(5) of section 3781.06 of the Revised Code and is located on land owned by the owner of the home. (b) The certificate of title for the home has been inactivated by the clerk of the court of common pleas that issued it pursuant to section 4505.11 of the Revised Code. {¶ 26} Relying on the above provisions, the board asserts that the property at issue was not real property at the time of the appraisal because the certificate of title for the home had not yet been surrendered.1 As noted under the facts, the appraisal was conducted July 20, 2001, and the application to surrender title was submitted four days later on July 24, 2001. {¶ 27} In response, appellee argues that the statute relied upon by the hearing examiner is inapplicable as it pertains to the issue of whether property is personal or real *Page 10 for taxation purposes. Appellee maintains that the subject property constituted a fixture at the time of the appraisal report, and that the trial court did not err in analyzing the evidence under traditional fixture analysis in rejecting the board's determination that appellee mischaracterized the nature of the property. {¶ 28} The trial court, as noted by appellee, applied common-law fixture analysis in considering the evidence submitted regarding the characterization of the property. The Ohio Supreme Court, in employing such an approach, has defined a "fixture" as "`[a]n article that was once personal property but has since been installed or attached to the land or building in a rather permanent manner, regarded in law as part of the real estate.'" Litton Sys., Inc. v. Tracy (2000),88 Ohio St.3d 568, 572 (quoting the Dictionary of Real Estate Appraisal, at 127). {¶ 29} In Masheter v. Boehm (1974), 37 Ohio St.2d 68, paragraph two of the syllabus, the Ohio Supreme Court held: The determination of whether an item is a fixture, passing with the real property in an appropriation proceeding, must be made in light of the particular facts of each case, taking into account such facts as the nature of the property; the manner in which it is annexed to the realty; the purpose for which the annexation is made; the intention of the annexing party to make the property a part of the realty; the degree of difficulty and extent of any loss involved in removing the property from the realty; and the damage to the severed property which such removal would cause. {¶ 30} A state certified or state licensed real estate appraiser is required to comply with various applicable standards, including "the uniform standards of professional appraisal practice, as adopted by the appraisal standards board of the appraisal foundation[.]" Ohio Adm. Code 1301:11-5-01(A). The failure to comply with such *Page 11 standards "may constitute a violation of one or more divisions of section 4763.11 of the Revised Code." Ohio Adm. Code 1301:11-5-01(B). The Uniform Standards of Professional Appraisal Practice ("USPAP") defines "real property" as "the interests, benefits, and rights inherent in the ownership of real estate." The USPAP defines "real estate" as "an identified parcel or tract of land, including improvements, if any." {¶ 31} In the present case, the trial court noted that the division's investigator, Tonti, who conducted his investigation three years after the complaint, testified he was uncertain whether the manufactured home was attached at the time of the appraisal. On this point, we note the record indicates the division's investigator acknowledged during his testimony that the only information he had concerning the status of whether the manufactured home was real property or personal property was from the documents obtained from the auditor's office. Thus, the trial court found that the only direct evidence in the record was that the structure was bolted down to the realty. In considering the record before the board, the trial court found that the evidence indicated: * * * [T]he manufactured home * * * (1) was affixed or annexed (bolted down) to the realty, (2) was being used as a stationary residence and (3) was intended by the owner to be considered a permanent accession to the realty in view of the fact that on the day the appraisal was effective, the owner changed the tax status of the structure as taxable as realty. Consequently, any finding that appellant mischaracterized the nature of the residence is not supported by reliable, probative, and substantial evidence. * * * (Footnote omitted.) {¶ 32} As noted, the criterion cited by the hearing examiner in determining that appellee violated appraiser standards was R.C. 5701.02, involving the classification of *Page 12 property for taxation purposes. Specifically, the board's hearing examiner appears to have found determinative the date the certificate of title was surrendered. {¶ 33} However, courts interpreting Ohio law have given recognition to the fact that, once a manufactured home is affixed to real property, the law treats it as a fixture that is part of the real estate. In reEvans (Bankr.Ct.S.D.Ohio 2007), 370 B.R. 138, 141 ("[a] manufactured home, which would often be considered an item of personal property, changes its character when it is affixed to real property"). InEvans, supra, at 143, the court noted that the failure to surrender a certificate of title of a manufactured home to a county clerk is not a necessary prerequisite to a valid fixture being created in a mobile home, holding that whatever significance the surrender of certificate of title may have under Ohio law for tax purposes does not negate the fact that a manufactured home is real property once it is affixed to the land. See, also, In re Cluxton (S.D.Ohio 2005), 327 B.R. 612, 615 ("Ohio courts have held that a failure to precisely follow the statute by a county auditor does not negate the mobile home becoming part of the real property by operation of law"), citing Snyder v. Hawkins, Coshocton App. No. 03-CA-007, 2004-Ohio-99; In re Davis (S.D.Ohio 2008), 386 B.R. 182 (although evidence was undisputed certificate of title for mobile home was not surrendered, case remanded for bankruptcy court to apply traditional fixture analysis "by looking at the physical annexation of the home to the land, the use of the home, and the parties' intent" to determine whether mobile home is real property under Ohio law). See, also, 1993 Ohio Atty.Gen.Ops. No. 385 ("[t]he surrender of the title is the result of the transformation of the manufactured home to real property status and not * * * the cause of the transformation"). (Emphasis added.) *Page 13 {¶ 34} In the present case, the trial court, in conducting its hybrid review, found the evidence to be undisputed that the property was bolted down, or affixed to the land. The trial court further found that the record supported a determination that the owners intended to treat the manufactured home as real property, as evinced by the fact they surrendered title to the property on July 24, 2001. Further, appellee testified he did not sign off on the appraisal report until the certificate of title was surrendered, and he stated that the appraisal report was not provided to anyone prior to July 24, 2001. Here, regardless of the status of the property for tax purposes at the time of the appraisal by appellee's employee, we find the trial court properly considered whether the property could have been characterized as real property, for purposes of the appraisal, under traditional fixture analysis. See Cluxton, supra, at 615 (recognizing under Ohio law that traditional fixture analysis, employing three-prong common-law test set forth in Teaff v. Hewitt (1853), 1 Ohio St. 511 (i.e., attachment, adaptation, and intent), was a proper test to determine whether mobile home is real property under Ohio common law). Based upon this court's review of the evidence cited above, we find no abuse of discretion by the trial court in holding that the board's finding that appellee mischaracterized the property as real property was not supported by reliable, probative, and substantial evidence. {¶ 35} Accordingly, the board's third assignment of error is without merit and is overruled. {¶ 36} Under the second assignment of error, the board asserts that the trial court erred in determining that the division's delay in bringing the charges was violative of due process. Based upon our disposition of the third assignment of error, finding the trial court did not abuse its discretion in finding the board's order was not supported by *Page 14 reliable, probative, and substantial evidence, we need not reach the issue whether the trial court erred in finding a due process violation, and, thus, the board's second assignment of error is rendered moot. {¶ 37} Based upon the foregoing, the board's first and third assignments of error are overruled, the second assignment of error is rendered moot, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed. Judgment affirmed. KLATT and FRENCH, JJ., concur. 1 As noted, R.C. 5701.02(B)(2)(b) contains a requirement that the certificate of title be "inactivated by the clerk of the court of common pleas that issued it pursuant to R.C. 4505.11[.]" R.C. 4505.11(H)(1) provides in part that "an owner of a manufactured or mobile home that will be taxed as real property * * * shall surrender the certificate of title to the auditor of the county containing the taxing district in which the home is located." *Page 1

2016-07-06 06:42:15.88198+00

OPINION *Page 2 {¶ 1} This matter is on appeal from the trial court's order of October 5, 2006, which granted appellee Ruth Huntsman's motion to compel appellant Sajid Q. Chughtai, M.D. to produce certain documents. {¶ 2} This matter is also on appeal from the trial court's separate order of October 5, 2006, which denied a motion to Quash Subpoena(s) Duces Tecum filed by Physicians Insurance Co. of Ohio and which denied a motion for Protective Orders filed by Sajid Q. Chughtai, M.D. and Sajid Chughtai, M.D., Inc. The trial court ordered Physicians Insurance Company, Physicians Insurance Company of Ohio, Western Indemnity Insurance Co., Sirak-Moore Insurance Agency, Evanston Insurance Company, Zurich American Insurance Company, Frontier Insurance Company, Medical Mutual of Ohio, Anthem Blue Cross Blue Shield, American International Insurance Company, the Bureau of Workers' Compensation, Medicare, Medicaid and Aultcare HMO to produce requested discovery to the court for an in camera inspection. {¶ 3} The appellant, challenging the orders made to Sajid Q. Chughtai M.D. and to Physicians Insurance Company of Ohio, is Aultman Hospital. Physicians Insurance Company of Ohio did not appeal. Sajid Q. Chugtai, M.D. and Sajid Chugtai, M.D., Inc. filed an appeal in Case No. 2006 CA 00331. STATEMENT OF FACTS AND CASE {¶ 4} Defendant-appellant, Aultman Hospital (hereinafter "Aultman"), appeals from the trial court's pre-trial discovery orders, which, inter alia, instructed Dr. Chughtai to produce documents that he provided to Aultman Hospital's peer review committee *Page 3 and which instructed various health insurers and professional liability insurers to produce documents, related to Dr. Chughtai, to the court for an in camera inspection. {¶ 5} The procedural history of this case is extensive. The underlying trial court matter involves a medical malpractice cause of action against Dr. Chughtai and a negligent credentialing cause of action against Aultman Hospital. There has also been a prior appeal to this Court involving the trial court's pre-trial discovery orders concerning the disclosure by Aultman Hospital of any records or documentation pertaining to Aultman Hospital's privileged peer review records. {¶ 6} The underlying action for medical malpractice and negligent credentialing was filed by appellee, Ruth Huntsman (hereinafter "Huntsman"), on behalf of the estate of Aurelia K. Huntsman, now deceased. In the complaint, Ms. Huntsman alleges that Dr. Chughtai's medical negligence during a surgical procedure to repair a hernia proximately caused Aurelia Huntsman's death. {¶ 7} The complaint also alleges that Aultman Hospital negligently granted, renewed and maintained Dr. Chughtai's medical staff privileges. Specifically, the complaint alleges that Aultman Hospital should have been aware that Dr. Chughtai's medical staff privileges were not renewed at Massillon Community Hospital and that between July 7, 1987, and April 20, 1999, at least twelve medical negligence lawsuits were filed against Dr. Chughtai. Ms. Huntsman also alleges that Aultman Hospital's failure to consider these facts regarding Dr. Chughtai's professional competence led to his negligent credentialing by Aultman Hospital and placed him in a position to perform the allegedly negligent surgical procedure. *Page 4 {¶ 8} During the discovery phase, and in an initial effort to obtain documents supporting the negligent credentialing claim, Huntsman requested the production of Aultman Hospital's peer review records. Upon a review of the request and in an effort to comply with R.C. 2305.252, the trial court overruled Huntsman's request for the production of the actual peer review records. In the alternative, the trial court ordered Aultman Hospital to provide Huntsman with a list of the documents which had been considered by Aultman Hospital's peer review committee during Dr. Chughtai's peer review process. This initial discovery order led to the first appeal before this Court wherein both Dr. Chughtai and Aultman appealed the trial court's discovery order. {¶ 9} On March 28, 2005, in an opinion addressing both Dr. Chughtai and Aultman's claims, this Court determined that the trial court erred in ordering Dr. Chughtai and Aultman Hospital to provide Huntsman with a list of documents from Aultman's peer review and credentialing files. See Huntsman v. Aultman Hosp. (2005), 160 Ohio App. 3d 196,2005-Ohio-1482, 826 N.E.2d 384, appeal denied 106 Ohio St. 3d 1487,2005-Ohio-3978, 832 N.E.2d 739. (Hereinafter "Huntsman I") Specifically, this Court held that any information produced during the peer review process was privileged and could not be ordered to be disclosed, even as a "list of documents", by the health care entity. This Court further stated that, although the documents could not be requested from the health care entity as "peer review records", the records did not enjoy the protection of R.C. 2305.252 outside the scope of the peer review process and were discoverable from original sources. Accordingly, this Court remanded the matter to the trial court for further proceedings consistent with the opinion. *Page 5 {¶ 10} On remand, Huntsman again pursued discovery of any information which supported the negligent credentialing claim. In that effort, on August 24, 2005, appellee served Dr. Chughtai personally with a request for the production of documents, and on August 30, 2005, Huntsman served notices of depositions duces tecum on several medical insurance provider networks and professional liability insurance companies. {¶ 11} In the request for production of documents served on Dr. Chughtai personally, Huntsman sought the following documents believed to be in Dr. Chughtai's possession: (1) documents in any way related to Dr. Chughtai's accreditation and/or credentialing as a member of any hospital medical staff; (2) documents in any way relating to any application by Dr. Chughtai for professional liability insurance coverage that would in any way cover any claim or potential claim; (3) documents in any way relating to any notification given to any professional liability insurance company of any claim or potential claim in any way involving Dr. Chughtai; and (4) documents in any way relating to Dr. Chughtai being approved or not being approved as a medical service provider by any health insurance company or health insurance plan. {¶ 12} In the notices of depositions duces tecum to the medical insurance companies/plans and professional liability insurers, Huntsman requested, inter alia, documents concerning Dr. Chughtai's qualification or status as an approved provider of medical services and documents regarding any application by Dr. Chughtai for liability insurance coverage. *Page 6 {¶ 13} The subpoenas issued to The Bureau of Workers' Compensation, Aultcare HMO, Medical Mutual of Ohio and Anthem Blue Cross Blue Shield specifically requested the following:1 {¶ 14} "All documents relating to Sajid Q. Chughtai being approved or not being approved as a medical service provider under any health insurance contract or health insurance plan." {¶ 15} The subpoenas issued to American International Insurance Company, Frontier Insurance Company, Zurich American Insurance Company, Evanston Insurance Company, Physicians Insurance Company of Ohio, Physicians Insurance Company and Western Indemnity Insurance Company specifically requested the following: {¶ 16} "All documents in any way relating to Sajid Q. Chugtai, including but not limited to, all underwriting files, claims files, audit files and/or files regarding any application for insurance. {¶ 17} "All documents by and/or between you and anyone else including but not limited to any professional liability insurance company, Aultman Hospital and/or Sajid Q. Chughtai in any way relating to Sajid Q. Chughtai." {¶ 18} The depositions duces tecum were scheduled to proceed on September 26 and 27, 2005. {¶ 19} On September 22, 2005, Physicians Insurance Company of Ohio filed a motion to quash Huntsman's deposition duces tecum. *Page 7 {¶ 20} On September 23, 2005, Dr. Chughtai filed a motion for a protective order. {¶ 21} On September 27, 2005, Dr. Chughtai's malpractice insurance agent, Sirak Moore Insurance Agency, appeared for the deposition and produced the requested documents. {¶ 22} On October 11, 2005, Huntsman filed a motion to compel Dr. Chughtai to produce the requested documents. Specifically, the appellee sought to compel Dr. Chughtai to produce any of the following documents in his possession: incident reports, sentinel event reports, applications for medical privileges at any health care facility, filings with the National Practitioner Data Bank (NPDB), all personnel and accreditation files, all procedure and surgery logs, all quality/performance and physician profiles, all correspondence relating to medical staff privileges, all applications for professional liability insurance and all applications for approval as a medical service provider on a health plan. {¶ 23} On October 21, 2005, upon motion by Dr. Chughtai, the trial court stayed Huntsman's action, pending a decision by this court inFilipovic v. Dash, M.D., Stark App. Nos. 2005CA00209 and 2005CA00211,2006-Ohio-2809, regarding the constitutionality of R.C. 2305.252. On May 22, 2006, in Filipovic, this Court found R.C. 2305.252 to be constitutional in that it does not preclude discovery of information which, while undiscoverable from peer review committee records, is available from original sources. Accordingly, the trial court set the Huntsman case to proceed. {¶ 24} On October 5, 2006, the trial court issued seven judgment entries in response to the pending discovery matters. *Page 8 {¶ 25} In one of the entries filed on October 5, 2006, the trial court made several different orders as to disclosure of documents by the appellants. Pertinent to this appeal, the trial court ordered Dr. Chughtai personally to produce any of the following documents in his possession: {¶ 26} "2. All documents in any way relating to [Dr.] Chughtai's initial application for medical privileges and all applications for renewal of medical privileges at any health care facility, including but not limited to Aultman Hospital and Massillon Community Hospital * * * {¶ 27} "4. All documents in any way relating to filings with the National Practitioner Data Base (NPDB), the Joint Commission on Accreditation of Health Care Organizations (JCAHO), the Federation of State Medical Board's (FSMB's) Physician Disciplinary Data Bank and the Ohio State Medical Board in any way relating to Dr. Chughtai * * *. {¶ 28} "9. All documents in any way relating to [Dr.] Chughtai's accreditation and/or credentialing as a member of any hospital medical staff. This request includes but is not limited to any document in any way relating to [Dr. Chughtai's] initial application for medical staff privileges at Aultman Hospital and/or Massillon Community Hospital and/or any renewal application for medical staff privileges at Aultman Hospital and/or Massillon Community Hospital." {¶ 29} With regard to documents held by the medical insurance companies/plans and by the professional liability insurance companies, in a separate judgment entry filed on October 5, 2006, the trial court held as follows: *Page 9 {¶ 30} "Physicians Insurance Company, Physicians Insurance Company of Ohio, Western Indemnity Insurance Company, Sirak-Moore Insurance Agency, Evanston Insurance Company, Zurich American Insurance Company, Frontier Insurance Company, Medical Mutual of Ohio, Anthem Blue Cross Blue Shield, American International Insurance Company, the Bureau of Workers' Compensation, Medicare, Medicaid and Aultcare HMO shall comply with their obligations to produce the subpoenaed documents IN THE FOLLOWING MANNER: {¶ 31} "The Court will limit Plaintiffs request to documents that only relate to Sajid Q. Chugtai, M.D. {¶ 32} "The parties will submit the requested discovery to the Court for an in camera inspection within 30 days of the date of this entry. {¶ 33} "If the requested information/file is more than 50 pages, the attorney for Dr. Chughtai will immediately notify the Court as to the number of pages in the file. The Court will then evaluate the discovery request. {¶ 34} "Copies of any pleadings associated with any lawsuit that may be referenced in Dr. Chughtai's file need not be reproduced. The company will provide the case number, case name, court and dates in lieu of the pleadings." {¶ 35} It is from these discovery orders that appellant, Aultman Hospital, now seeks to appeal, setting forth the following assignment of error: {¶ 36} "THE TRIAL COURT ERRED BY (1) ORDERING DR. CHUGHTAI TO PRODUCE DOCUMENTS THAT HE PROVIDED TO AULTMAN HOSPITAL'S PEER REVIEW COMMITTEE AND THAT HAVE BECOME PART OF AULTMAN'S CREDENTIALING FILES; AND (2) INTERPRETING R.C. 2305.252 AS PERMITTING *Page 10 DISCOVERY OF MATERIALS FROM THE PEER REVIEW COMMITTEES OF HEALTH INSURERS AND PROFESSIONAL LIABILITY INSURERS AS ORIGINAL SOURCES AND ORDERING AN IN CAMERA INSPECTION THEREOF RESULTING IN A COMPROMISE OF THE PEER REVIEW PRIVILEGE." {¶ 37} After the notice of appeal was filed, on November 28, 2006, Huntsman filed a motion to dismiss the appellant's appeal from the October 5, 2006, orders. The motion argued that Aultman Hospital lacked standing to appeal and that one of the orders was not a final, appealable order. On January 7, 2007, the appellant filed a motion in opposition. On January 25, 2007, this Court ordered that the motion to dismiss would be considered at the time of the merit review. {¶ 38} We must first address three preliminary issues pertaining to Aultman's assignment of error before reaching the merits. These issues are as follows: what statutory law is applicable to the appeal; whether the matter on appeal is a final, appealable order and whether the appellant, Aultman Hospital, has standing to bring this appeal. APPLICABLE LAW {¶ 39} Huntsman argues that the former version of R.C. 2305.251 is applicable to this case as opposed to the current version of the statute, which was renumbered and modified as R.C. 2305.252 and which became effective April 9, 2003. In support, Huntsman argues that the events that gave rise to this case occurred in June 1999, prior to the effective date of R.C. 2305.252, and that the revised version of the statute gives no indication that it was to be applied retroactively. In addition, Huntsman contends that the statute affects a substantive right, thereby foreclosing retroactive *Page 11 application. We find that this issue was addressed and decided by this Court in Huntsman I, whereby this Court held that the revised version of the statute affected a procedural right and was therefore applicable to the case sub judice. The complaints in this case were originally filed on December 15, 2000, dismissed without prejudice on September 24, 2001, and refiled on September 20, 2002. Accordingly, we hereby find that the revised version of the statute is applicable for the reasons set forth in Huntsman I. JURISDICTION-FINAL APPEALABLE ORDER {¶ 40} In regard to the second part of appellant's assignment of error, the appellant argues that the trial court's order, denying the motion to quash and motion for a protective order and ordering an in camera inspection of what appellant alleges are peer review records, is a final, appealable order pursuant to R.C. 2305.252. R.C. 2305.252 states that "* * * An order by a court to produce for discovery or for use at trial the proceedings or records described in this section [i.e. peer review records] is a final order." Appellee argues that a trial court's order for an in camera inspection of certain documents, rather than an order to provide documents to the adverse party, is a non-final order. We agree with the appellee. {¶ 41} Pursuant to Section 3(B)(2), Article IV of the Ohio Constitution, this Court's appellate jurisdiction is limited to the review of final orders of lower courts. "* * * The entire concept of `final orders' is based upon the rationale that the court making an order which is not final is thereby retaining jurisdiction for further proceedings. A final order, therefore, is one disposing of the whole case or some separate and distinct branch thereof." Noble v. Colwell, (1989),44 Ohio St. 3d 92, 94, 540 N.E.2d 1381 quoting *Page 12 Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio St. 2d 303, 306,272 N.E.2d 127. "A judgment that leaves issues unresolved and contemplates that further action must be taken is not a final appealable order."State ex rel. Kieth v. McMonagle, 103 Ohio St. 3d 430, 2004-Ohio-5580,816 N.E. 2d 597, at paragraph 4, citing Bell v. Horton (2001),142 Ohio App. 3d 694, 696, 756 N.E.2d 1241. {¶ 42} R.C. 2505.02 (B) defines a final order to include: {¶ 43} "(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following: {¶ 44} "(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment; {¶ 45} "(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment; {¶ 46} "(3) An order that vacates or sets aside a judgment or grants a new trial; {¶ 47} "(4) An order that grants or denies a provisional remedy and to which both of the following apply: {¶ 48} "(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy. {¶ 49} "(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action * * *." {¶ 50} As used section R.C. 2505.02: *Page 13 {¶ 51} "(1) `Substantial right' means a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect. {¶ 52} "(2) `Special proceeding' means an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity. {¶ 53} "(3) `Provisional remedy' means a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-facie showing pursuant to section 2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to section 2307.92 of the Revised Code, or a finding made pursuant to division (A)(3) of section 2307.93 of the Revised Code. R.C. 2505.02(A) * * *" (Emphasis added). {¶ 54} Generally, discovery orders are not appealable. Walters v.Enrichment Center of Wishing Well, Inc. (1997), 78 Ohio St.3d 118,676 N.E. 2d 890. However, if the judgment orders a party to disclose allegedly privileged material, it is appealable pursuant to R.C. 2505.02(A) (3) and (B) (4). {¶ 55} An exception would be when the trial court directs a witness opposing a discovery request to submit the requested materials to the trial court for an in camera review. In that case, when the trial court orders that the materials shall be subject to an in camera review so that the court may determine their discoverable nature, the order for an in camera review is not a final, appealable order pursuant to R.C. 2505.02. Bell v. Mount Sinai Medical Center (1993), 67 Ohio St. 3d 60,65, 616 N.E. 2d 181. See, also, King v. American Standard Ins. Co., Lucas App. No. L-06-1306, 2006-Ohio-5774 *Page 14 (holding that a court's order directing "a plaintiff to submit requested materials to an in camera review so that the court can determine whether the documents are protected from disclosure on some alternative basis, including other bases of privilege or confidentiality, * * * is not a final appealable order * * *); Gupta v. Lima News, 143 Ohio App. 3d 300,2001-Ohio-2142, 757 N.E. 2d 1227 (holding that only if the court compelled disclosure of the documents after an in camera inspection would the appellant's substantial rights be affected and the order would become final, and thus appealable); Ingram v. Adena Health System (2001), 144 Ohio App. 3d 603, 761 N.E. 2d 72; Neimann v. Cooley (1994),93 Ohio App. 3d 81, 637 N.E. 2d 72; Keller v. Kehoe, Cuyahoga App. No. 89218, 2007-Ohio-6625. {¶ 56} In this case, the trial court ordered the documents to be submitted to it for an in camera inspection. The order does not appear to exclude the possibility that the trial court will review the documents to determine whether each are protected by the peer review privilege in R.C.2305.252. The trial court has retained jurisdiction to make further determinations regarding the discoverability of the requested materials. {¶ 57} Appellant urges us to find that an in camera inspection would essentially open the documents to some review which would compromise the confidential nature of the documents and violate the privilege set forth in R.C. 2305.252, citing in support Everage v. Elk and Elk,159 Ohio App. 3d 220, 2004-Ohio-6186, 823 N.E. 2d 516. In Everage, the trial court ordered an in camera inspection of documents relating to grievances which had been filed against attorneys in the law firm. Initial grievance filings, until probable cause has been determined, are usually not public. *Page 15 {¶ 58} In King v. American Standard Ins. Co., supra, the court addressed this issue. In King, the appellant argued that an in camera inspection would let the proverbial cat out of the proverbial bag. TheKing court stated as follows: "We have only found one appellate court that agrees with this argument. [footnote omitted]. In Everage v. Elkand Elk * * * the Third District Court of Appeals states: {¶ 59} "The trial court's denial of appellant's motion for a protective order regarding grievances or complaints filed with an attorney disciplinary panel is a final, appealable order, as it relates to the discovery of privileged matter. Due to the unique and confidential circumstances of an attorney disciplinary proceeding, the disclosure could not be meaningfully appealed after the trial court's in camera inspection. Once the trial court reviews the documents, their confidentiality will have been compromised. Accordingly the trial court's order for the production of documents determines the discoverability matter, See R.C. 2505.02(B) (1).' Id." {¶ 60} Upon review of this argument, the King court held as follows: "We find this reasoning unpersuasive. Disclosing privileged information to a judge for in camera inspection is not tantamount to disclosing it to the opposing party in the case. Confidentiality has not been compromised; our judiciary can be trusted to keep confidential information confidential." King v. American Standard Ins. Co. supra at paragraph 27. {¶ 61} The King court further found its decision to be in conflict with Everage v. Elk and Elk and certified the matter to the Supreme Court for review. Specifically, they certified the following question, "Is an order to turn over allegedly privileged material to the trial court for an in camera inspection a final appealable order pursuant to *Page 16 R.C. 2505.02(A)(3) and (B)(4). On January 24, 2007, the Supreme Court dismissed the case holding that no conflict existed. King v. Am. Std.Ins. Co. of Ohio, 112 Ohio St.3d 1437, 860 N.E.2d 763, 2007-Ohio-152 (Ohio Jan 24, 2007) (TABLE, NO. 2006-2162) {¶ 62} We concur with the decision in King v. American Standard Ins.Co. and find the decision in Everage to be both unpersuasive and distinguishable from the facts in this case. In Everage, the court examined the disclosure of confidential documents for in camera review under circumstances only applicable to complaints made to the Office of the Disciplinary Counsel and pursuant to the Ohio Supreme Court's Gov.Bar. R.V. The rules specifically state that attorneys involved in the grievance process have a right to privacy. Privacy is defined by the rule as "the right of an attorney to the right of privacy as to the proceedings, a right that may be waived in certain limited situations." See Gov. Bar R. V (11) (E) (1) (a) through (c). {¶ 63} Unlike the circumstances in Everage, the case sub judice involves the peer review privilege and the protection provided by R.C. 2305.252. The peer review privilege is meant to promote the free flow of information, not to protect a privacy right. Nothing in R.C. 2305.252 sets forth a right to privacy. Furthermore, the protection of the free flow of information into a peer review process will not be compromised by an in camera review. A private review, prior to any order for the production of documents to an adverse party, by a competent judge who is sworn to maintain confidentiality does not compromise the free flow of information that the privilege is meant to protect. {¶ 64} In addition, Everage is distinguishable in another way from the case sub judice. The trial court's order in Everage dealt with a very specific and definite class of information: grievances which had been filed against attorneys. The documents subject *Page 17 to the court's order in the case sub judice are not as homogeneous in nature. In other words, the trial court, in the case sub judice, could issue different rulings regarding the peer review privilege as to each document presented. {¶ 65} For these reasons we find that the trial court's order of October 5, 2006, requiring various insurance companies, the Sirak-Moore Insurance Agency, the Bureau of Workers' Compensation, Medicare, Medicaid, Aultcare HMO, etc. to produce documents to the trial court for an in camera inspection, is not a final, appealable order. Accordingly, this court lacks jurisdiction to consider the second part of appellant's assignment of error. STANDING2 {¶ 66} In the first part of appellant's assignment of error, the appellant argues that the documents which Huntsman has requested from Dr. Chughtai are privileged pursuant to 2305.252 and are, therefore, not discoverable. Appellant Aultman further argues that the privilege attaches to applications submitted by Dr. Chughtai to any peer review process of a hospital or health care facility and any documents submitted to the National Practitioner Data Bank, Joint Commission on Accreditation of Healthcare Organizations, the Federation of State Medical Board's Physician Disciplinary Data Bank and the Ohio State Medical Board. Appellant argues that, by ordering Dr. Chughtai to produce such documents, the trial court has ordered him to produce documents which form a peer review committee's file. *Page 18 {¶ 67} In the motion to dismiss filed on November 28, 2006, Huntsman argues that Aultman was not a party to the discovery requests made to Dr. Chughtai and cannot assert the issue of privilege on Dr. Chughtai's behalf and, therefore, lacks standing to bring this appeal. In response, Aultman argues that pursuant to R.C. 2305.252, it has a substantial interest in the trial court's discovery orders and an obligation to protect the privileged information from potential disclosure. {¶ 68} In case number 2006CA00331, a related appeal, we found that the trial court erred as a matter of law in compelling Dr. Chughtai to produce documents which he provided to the health care entities for use in their peer review processes including initial applications for medical privileges, applications for the renewal of medical privileges, applications for accreditation and/or applications pertaining to credentialing, and we reversed, in part, the trial court's discovery order. {¶ 69} The arguments made by appellant Aultman Hospital in the case sub judice are the same arguments made by Sajid Q. Chightai, M.D. and Sajid Chughtai M.D. Inc. in case number 2006 CA 00331. Dr. Chughtai, in his appeal, incorporated Aultman's arguments by reference. Therefore, we find the appellant's assignment of error to be moot as it relates to Dr. Chughtai's initial applications for medical privileges, applications for the renewal of medical privileges, applications for accreditation and/or applications pertaining to credentialing. {¶ 70} However, since we found that the trial court did not err in compelling Dr. Chughtai to produce documents relating to filings with the National Practitioner Data Base(NPDB), the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), the Federation of State Medical Board's (FSMB's) Physician Disciplinary Data *Page 19 Bank and the Ohio State Medical Board, we shall address the issue of Aultman's standing to invoke the peer review privilege in regard to information provided to those entities by Dr. Chughtai. {¶ 71} We find that Aultman Hospital lacks standing to appeal the portion of the trial court's October 5, 2006, judgment entry, addressing appellee Huntsman's Third Motion to Compel Dr. Chughtai to produce documents, which orders Dr. Chughtai to produce all documents relating to filings with the National Practitioner Data Base (NPDB), the Joint Commission on Accreditation of Healthcare Organizations, the Federation of State Medical Board's Physician Disciplinary Data Bank and the Ohio State Medical Board [hereinafter, NPDB, etc.] in any way relating to Dr. Chughtai. {¶ 72} Aultman Hospital argues that these documents "form a peer review committee's file" and, thus, are protected by the peer review committee's privilege. The peer review privilege in R.C. 2305.252 protects the records possessed and/or used by a peer review committee of a health care entity, but "[i]nformation, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were produced or presented during proceedings of a peer review committee but the information, documents or records are available only from the original sources and cannot be obtained from the peer review committee's proceedings or records." R.C. 2305.252. Therefore, documents filed by Dr. Chughtai with the NPDB, etc. may be included in the records of Aultman Hospital's peer review committee, and if so, those records would be protected by the privilege granted to Aultman Hospital's peer review committee. But that privilege does not extend to documents filed by Dr. Chughtai with the NPDB, etc. *Page 20 Aultman Hospital's peer review committee's privilege does not extend to documents/information submitted by Dr. Chughtai to other entities just because those documents are of a type that would generally be included in, and may actually be included in, Aultman Hospital's peer review committee's records. {¶ 73} Appellant's appeal as it pertains to the first part of the assignment of error is dismissed because it is moot in part and because Aultman lacks standing to invoke the peer review privilege regarding documents which Dr. Chughtai filed with the NPDB and etc. {¶ 74} Appellant's appeal as it pertains to the second part of the assignment of error is dismissed because this Court lacks jurisdiction over a non-final order. Edwards, J., Farmer, P.J., and Wise, J. concur. *Page 22 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the appeal of Aultman Hospital is dismissed. The Motion to Dismiss filed by appellee on November 28, 2006, is granted as to the issue of Aultman Hospital's lack of standing to appeal the trial court's order of October 5, 2006, directing Dr. Chughtai to produce all documents in any way relating to filings with the National Practitioner Data Base, the Joint Commission on Accreditation of Healthcare Organizations, the Federation of State Medical Board's Physician Disciplinary Data Bank and the Ohio State Medical Board in any way relating to Dr. Chughtai, and is granted as to the issue of lack of a final, appealable order regarding the trial court's order of October 5, 2006, which directed various medical insurance *Page 23 companies/plans and professional liability insurers to produce documents to the trial court for an in camera inspection. Said Motion to Dismiss is moot regarding Aultman Hospital's standing to appeal other issues. Costs assessed to appellant. 1 The subpoenas for Medical Mutual of Ohio, Anthem Blue Cross Blue Shield, American International Insurance Company, Frontier Insurance Company, Zurich American Insurance Company, Evanston Insurance Company, Physicians Insurance Company of Ohio, Physicians Insurance Company and Western Indemnity Insurance Company were served "c/o Sirak-Moore Insurance Agency, as Agent * * *" 2 We have previously found that the order for an in camera inspection of documents to be produced by the medical insurance providers and the liability insurance companies is not a final appealable order and accordingly, this Court lacks jurisdiction to consider the order on appeal. Therefore we shall not address Aultman's standing as it pertains to that order. *Page 1

2016-07-06 06:42:15.909754+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JUDGMENT ENTRY. This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1). Defendant-appellant William Cox pleaded guilty to three counts of failing to provide adequate support for three children born of his ex-wife Teresa Lynn Cox, in violation of R.C. 2919.21(B).1 The indictment related to a 1983 divorce decree ordering Cox to pay $135 per week in child support. After accepting Cox's plea and finding him guilty of the charges, the trial court reviewed the pre-sentencing investigative report, victim impact statements, letters from Cox's siblings and potential employers, and a treatment report. The trial court then held a hearing at which Cox, his ex-wife, and their three children, now all emancipated, testified. Though this was Cox's first prison sentence, the trial court imposed the maximum sentence of twelve months of incarceration on each count of fifth-degree-felony nonsupport. Further, the court ordered the sentences to be served consecutively and ordered Cox to pay $10,047.92 in restitution. In this appeal, Cox argues, in his sole assignment of error, that the trial court erred in imposing maximum and consecutive terms of imprisonment. After reviewing the record, we hold that the court made the requisite findings in imposing the maximum and consecutive sentences and that these findings are supported by the record in this case. Before imposing a prison term for the fifth-degree felonies, the court made the requisite findings under R.C. 2929.13(B)(2)(b) that Cox was not amenable to community control and that prison is consistent with the sentencing purposes. In support of these findings, the court weighed the seriousness and recidivism factors of R.C. 2929.12(B) through (E). The court cited Cox's prior convictions for driving under the influence of alcohol and his denial of a long-standing alcohol abuse problem, his complete disregard for court orders and his family, and his lack of remorse. The court made these findings on the sentencing worksheet and orally at the sentencing hearing. Cox argues that the court erred in not considering two possible mitigating factors noted by the probation department in the pre-sentence investigation report: 1) the "less serious" factor of the offender not expecting to cause physical harm to any persons, see R.C. 2929.12(C)(3); and 2) the "recidivism less likely factor" of the offender having led a law abiding life for a significant number of years. See R.C. 2929.12(E)(3). The court did not mark the boxes next to these factors on the sentencing worksheet. The trial court's failure to mark a mitigating factor on the sentencing worksheet does not necessarily demonstrate that the trial court failed to consider the mitigating factor; it might instead indicate that the court chose not to give the mitigating factor the same weight as Cox argued it should have. See State v. Howard (Sept. 11, 1998), Hamilton App. No. C-971049, unreported. Additionally, a pre-sentence investigation report is only one of several sources of information reviewed by the trial court in determining a sentence. The court must also consider the rest of the record, including any information presented at the hearing and any victim-impact statements in determining a proper sentence. See R.C.2929.19(B)(1). We find no error in the trial court's imposition of a prison term in lieu of community-control sanctions. Additionally, we find no error in the court's imposition of the maximum sentence, even though Cox had not previously served a prison term. In accordance with R.C. 2929.14(B), the court specified, on the sentencing worksheet and orally at the hearing, its finding that the shortest term of imprisonment would demean the seriousness of the offense and would not adequately protect the public. This record confirms that the court first considered imposing the minimum sentence and then decided to depart from the statutorily mandated minimum based on both of the permitted reasons. See State v. Edmonson (1999), 86 Ohio St.3d 324, 326, 715 N.E.2d 1313. Further, in imposing the maximum term of imprisonment, the court specifically found on the sentencing worksheet that Cox had committed the worst form of the offense and stated the basis orally at the sentencing hearing: [T]his is one of the most egregious cases I've seen come through the court. You've ignored court orders; not uttered one syllable of remorse when given an opportunity to do so, if only to get yourself out of trouble. You've not even mouthed those words suggesting any kind of remorse for your failure to be involved in any way in your children's lives. * * * The victim impact statements provided, together with the in-court statements, demonstrate a severe lack of regard for your family obligations, leaving your family in a destitute situation, both financially and emotionally. Cox dismisses the court's finding as unsupported by the record. He argues that he did not commit the worst form of the offense because he did make some payments and was supporting another child for whom he had custody at the time. He also challenges the court's finding that the overall arrearage in this case amounted to over $93,000. We disagree. We have held that "there can be several different `worst' forms of the offense so long as they involve conduct that is particularly repugnant, threatening, or otherwise deserving of punishment." State v. Brock (Nov. 3, 2000), Hamilton App. No. C-000085, unreported. The court must consider the totality of the circumstances to determine whether a defendant has committed the worst form of the offense. See State v. Boshko (2000), 139 Ohio App.3d 827, 836- 837, 745 N.E.2d 1111, 1118-1119; State v. Garrard (1997), 124 Ohio App.3d 718, 722, 707 N.E.2d 546, 549-550. The record in this case supports a finding of repugnancy. Cox sporadically paid child support, but when the amounts he did pay during the time-period for which he was charged were averaged out over a period of 104 weeks, he apparently had not paid support for over seventy-seven of the weeks, amounting to a deficiency of over $10,000. The testimony at the hearing indicates that the overall arrearage on the account was over $90,000. This amount was not challenged below, and, therefore, Cox cannot challenge it now. Cox did not pay any support in the six-month period prior to his incarceration in the Hamilton County Justice Center. He left his ex-wife and his two-year-old twin boys and their one-year-old sister in 1983, and he did not visit his children in over fifteen years, even when one was gravely ill. Finally, in accordance with R.C. 2929.14(E)(3) and R.C. 2929.14(B)(4), the court ordered consecutive sentences. The court stated at the hearing, "Your harm was great with respect to these matters." It found that Cox had left his family "in a destitute situation, both financially and emotionally." This determination was based upon the victim-impact statements and in-court testimony of Teresa Cox and the three children Cox had failed to support. This finding of great harm was marked on the sentencing worksheet and is supported by the record in this case. Upon the record before us, we cannot clearly and convincingly conclude that the record does not support the sentence or that the sentence was contrary to law. See State v. Beard (Sept. 5, 2000), Clermont App. No. CA 2000-02-012 (imposing three one-year consecutive terms of incarceration for failure to support.) 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. Gorman, P.J, Hildebrandt and Shannon, JJ. Raymond E. Shannon, retired, from the First Appellate District, sitting by assignment. 1 As part of the plea agreement, three other counts charging non-support were dismissed.

2016-07-06 06:42:15.994825+00

OPINION {¶ 1} Plaintiff-appellant Melissa K. Day (hereinafter "Day") appeals from a decision of the Clark County Court of Common Pleas, Domestic Relations Division, which reallocated the parental rights and responsibilities for Day's two minor children to her ex-husband, Lucas S. Smith (hereinafter "Smith"), the children's biological father. As a result, Smith became the primary legal custodian and residential parent of the parties' minor children. {¶ 2} Day contends that the trial court erred when it held that it would be in the best interests of the parties' minor children to be removed from her custody and permanently placed in the care of Smith. Day also asserts that the decision of the trial court was against the manifest weight of the evidence. Day argues that the trial court abused its discretion when it awarded Smith the entire amount of child support payments being held in escrow during the pendency of this litigation. Lastly, Day asserts that in light of certain failures on the part of her trial attorney, she received ineffective assistance of counsel. {¶ 3} For the following reasons, the judgment of the trial court will be affirmed. I {¶ 4} Day and Smith were married on April 3, 1999, in Grapevine, Texas, and the couple produced two children during their marriage, C.S., D/O/B 8/9/99, and A.S., D/O/B 9/12/00. After moving to the state of Ohio, the couple separated in March of 2002. On December 9, 2002, Day filed for divorce. The divorce was finalized by entry on March 14, 2003. Day was awarded custody of the two children, and Smith was required to pay $50.00 a month in child support to the mother. Smith's child support obligation was later increased to $272.69 a month which became effective on September 1, 2004. {¶ 5} Prior to her filing for divorce, Day became involved with a man named Mark A. Day, whom she later married on February 28, 2005. At the hearing, evidence was adduced that established that Mark Day is a convicted sex offender who served twenty-two months in prison after pleading guilty to two counts of gross sexual imposition involving two minors under the age of thirteen in Clark County, Ohio. One of the victims was Mark Day's biological son from a previous relationship while the other victim was a young female. {¶ 6} Most recently, allegations were made by Smith against Mark Day for sexually abusing C.S. and A.S. on two separate occasions. On December 1, 2002, Smith reported to the Springfield Police that his son, C.S., had told him that his mother's boyfriend, Mark Day, had molested him on November 28, 2002. The alleged incident was investigated by the Springfield Police as well as Clark County Children's Services. Mark Day passed a stipulated polygraph test with respect to the first incident, and because there was no corroborating evidence, medical or otherwise, to support Smith's claims, the investigation was closed as unsubstantiated. {¶ 7} The second alleged incident was reported by Smith on July 20, 2004, wherein he claimed that both C.S. and A.S. told him that Mark Day had performed various sexual acts on them. The children also recounted the story to the police officers, Children's Services workers, and Smith's father and girlfriend. No corroborating evidence was discovered, and although Mark Day did not participate in a polygraph test, no criminal charges were filed against him. Again, the investigation was closed as unsubstantiated. {¶ 8} On October 15, 2004, Smith filed an emergency ex parte petition to gain temporary custody of C.S. and A.S. pending a hearing to determine whether Smith should be designated the children's residential parent and legal custodian. In the petition, Smith alleged that the children were in danger of continuing sexual abuse at the hands of Day's boyfriend, Mark. The trial court granted the motion and gave Smith temporary custody of the children pending the outcome of the evidentiary hearing. {¶ 9} The custody hearing was held on April 4, 2005. In a decision filed on April 21, 2005, the trial court held in light of the danger posed by Mark Day's presence in the mother's household, it was in the best interests of the parties' minor children to be permanently placed with Smith. Thus, Smith was designated the children's primary legal custodian and residential parent. Day was granted visitation with the children, but Mark Day was not to be present during these meetings. Day was also ordered to pay child support to Smith in the amount of $388.00 a month. {¶ 10} It is from this judgment that Day presently appeals. II {¶ 11} Because Day's first and second assignments of error are interrelated they will be discussed together: {¶ 12} "THE TRIAL JUDGE ERRED AND ABUSED HIS DISCRETION IN THE CHANGE OF CUSTODY AND IN DETERMINING THAT IT WAS IN THE BEST INTEREST OF THE MINOR CHILDREN TO CHANGE CUSTODY AND TO REALLOCATE PARENTAL RIGHTS AND RESPONSIBILITIES TO THE APPELLEE, LUCAS S. SMITH CONTRARY TO LAW." {¶ 13} "THE TRIAL JUDGE DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." {¶ 14} In her first assignment, Day contends that the trial court erred when it held that it would be in the best interest of the parties' minor children to have Smith designated as their residential parent and legal custodian. Day argues that the trial court exhibited bias and prejudice towards Mark Day and had already determined that custody of the two minor children would be turned over to the father. We disagree. {¶ 15} While a trial court's discretion in a custody proceeding is broad, it is not absolute, and must be guided by the language set forth in R.C. § 3109.04. Baxter v. Baxter (1971), 27 Ohio St.2d 168, 271 N.E.2d 873. In addition, the trial court's determination in a custody proceeding is, of course, subject to reversal upon a showing of an abuse of discretion.Trickey v. Trickey (1952), 158 Ohio St. 9, 106 N.E.2d 772. The discretion which the trial court enjoys in custody matters 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 involved. Miller v. Miller (1988),37 Ohio St.3d 71, 523 N.E.2d 846. The term "abuse of discretion" connotes more than an error of law or judgment, it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Decisions are unreasonable if they are unsupported by a sound reasoning process. AAAA Enterprises, Inc.v. River Place Community Urban Redevelopment Corp. (1990),50 Ohio St.3d 157, 161, 553 N.E.2d 597. {¶ 16} R.C. § 3104.04(F)(1) provides that in determining the best interests of the child, the court shall consider all relevant factors, including, but not limited to: {¶ 17} "(a) the wishes of the child's parents. {¶ 18} "(b) the wishes of the child if interviewed in chambers. {¶ 19} "(c) the child interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interests. {¶ 20} "(d) the child's adjustment to home, school, and community. {¶ 21} "(e) the mental and physical health of all persons involved. {¶ 22} "(f) the person more likely to honor visitation. {¶ 23} "(g) whether either parent has honored child support payments. {¶ 24} "(h) whether either parent has been convicted of abusing a child. {¶ 25} "(i) whether either parent will live outside the state." {¶ 26} In its decision flied on April 21, 2005, the trial court made the necessary findings with respect to each of the factors mentioned above. The trial court found that both parties care for their children very much, but in light of Day's marriage to a registered sex offender, it would be in the children's best interest to reside in Smith's home. Although Smith's home is small and sparsely furnished, it is the more ideal place for the children to be raised. The trial court further found Smith and his girlfriend, Amber Seelig, provide a more stable home environment for the children. Moreover, the court found that the older of the two children was exhibiting a marked improvement in school since having moved into Smith's home. {¶ 27} With respect to the home environment provided by Day, the trial court found that in light of Mark Day's criminal history and sex offender status, it would not be in the best interest of the children to live with their mother. During the hearing, Day could not provide a suitable answer when asked how she and her husband, Mark Day, could maintain their marriage if he was prohibited from ever being near the children. When Mark Day was questioned by the trial court, he refused to answer any questions with respect to his criminal history, and the court drew a negative inference from his silence. Interestingly, Melissa and Mark Day were not living together at the time of the hearing. The record reveals that as a result of his sex offender status, Mark Day could not reside with Ms. Day since she lived near a school. {¶ 28} Thus, the trial court relied on R.C. §3109.04(E)(1)(a) which states in pertinent part: {¶ 29} "The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on the facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, his residential parent or either of the parents subject to a shared parenting decree, and that modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:. . . . (iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child." {¶ 30} The trial court also considered the fact that Day was the primary caregiver and original residential parent of the two children. However, in light of Day's marriage to a convicted sex offender, the trial court found that Smith had met his burden in demonstrating a change in circumstance in the children's residential status that warranted a reallocation of parental rights and responsibilities. Although the court found that Day was a capable mother, it also held that it was not in the best interest of the parties' minor children "to be anywhere near Mark Day for any length of time whatsoever, even if they were with either of the parties herein." Trial Court Entry, April 21, 2005, pg. 10-11. {¶ 31} The trial court's decision was thorough and explicit in its findings. It is clear from a review of the transcript of the custody hearing that the trial court had not predetermined the outcome. All parties involved were given the opportunity to present evidence favorable to their individual cases. The trial court made all the necessary statutory findings in accordance with R.C. § 3109.04. Thus, the trial court did not abuse its discretion when it found that it would be in the best interest of the parties' minor children to permanently reside with their biological father. {¶ 32} With respect to Day's second assignment concerning the manifest weight of the evidence, we find that the trial court's decision was supported by competent and credible evidence. InBechtol v. Bechtol (1990), 49 Ohio St.3d 1, 550 N.E.2d 164, the Ohio Supreme Court stated that an award of custody supported by a substantial amount of credible and competent evidence should not be reversed as being against the manifest weight of the evidence. {¶ 33} Although the trial court found that the children interacted well with both parents, the court was clearly concerned that Day was married to a convicted sex offender against whom allegations of sexual abuse had been made by her own children. In support of her assertion that the evidence demonstrated she should maintain custody of the children, Day points out that Smith had an outstanding child support arrearage at the time of the hearing and that he was unable to provide convincing evidence that Mark Day had sexually abused the children. It is true that Smith was in arrears with respect to his child support payments, but the trial court provided for the payment of the outstanding sum in its decision as discussed in the next assignment of error. {¶ 34} Regarding the allegations of sexual abuse of the parties' children, the investigation conducted by the Springfield Police as well as Clark County Children's Services were closed as unsubstantiated, and no criminal charges were ever brought against Mark Day. However, with respect to the second instance of sexual abuse alleged, C.S. and A.S. told not only Smith that they had been molested, but they also told Smith's girlfriend and father, as well as the police and Children's Services workers. Moreover, it was undisputed that Mark Day had pled guilty to two counts of gross sexual imposition, one of the victims being his own biological son. When questioned by the trial court concerning her new husband's prior convictions, Day simply stated that she did not believe he was guilty based on her own review of Mark Day's criminal files. The trial court found it "almost incomprehensible that Ms. Day would choose to marry an individual with the criminal background which Mr. Day clearly possesses" and allow him to be around her young children. Based on the undisputed evidence before us, we must agree. {¶ 35} In light of the foregoing analysis, we hold that competent credible evidence existed for the trial court to award custody of the parties' minor children to Smith. The trial court's decision was not against the manifest weight of the evidence. {¶ 36} Day's first and second assignments of error are overruled. III {¶ 37} Day's third assignment of error is as follows: {¶ 38} "THE TRIAL JUDGE ERRED TO THE PREJUDICE OF THE APPELLANT AND ABUSED HIS DISCRETION WHEN HE AWARDED ALL ESCROWED CHILD SUPPORT TO THE APPELLEE, LUCAS S. SMITH, WHEN THE EVIDENCE DIDN'T SUPPORT AN AWARD." {¶ 39} In her third assignment, Day contends that the trial court erred when it awarded the entire amount of child support monies held in escrow to Smith once he was redesignated the primary legal custodian and residential parent of the parties' minor children. In particular, Day argues that evidence adduced at the hearing held on April 4, 2005, demonstrated that Smith was in arrears with respect to his child support payments. Thus, Day asserts that she was entitled to the amount held in escrow necessary to satisfy the arrearage. We disagree. {¶ 40} In an entry filed on April 21, 2005, the trial court stated in pertinent part: {¶ 41} "The credible evidence in this case suggests that Mr. Smith is in arrears with respect to his child support obligation in the approximate sum of $1,446.83 as of February 28, 2005, however, a vast majority of that arrearage accrued during the period of temporary orders and immediately following the filing of the parties' Divorce Decree." {¶ 42} Regarding the existing arrearage, the trial court went on to state: {¶ 43} "IT IS FURTHER ORDERED that any prior child support arrearage owed by the Defendant, Lucas Smith, to the Plaintiff, Melissa Day, shall be preserved and shall be reduced at the rate of Plaintiff's child support obligation owed to the defendant as set forth herein on a monthly basis until such time as the Defendant's child support obligation has been completely eliminated, at which time the Plaintiff's obligation to begin paying child support to the Defendant shall begin. * * *" {¶ 44} In light of the foregoing, the trial court was aware that Smith was in arrears with respect to his child support payments and made the proper order as to how the arrearage would be satisfied. Rather than deduct the outstanding arrearage from the amount of money being held in escrow which was awarded to Smith, the trial court held that Day's child support payments1 would be deducted from the amount of the arrearage until said sum was eliminated. Once the arrearage of $1,446.83 was paid off, Day would then be required to begin making monthly child support payments directly to Smith. In this manner, the trial court awarded Smith the sums held in escrow for the immediate benefit of the parties' minor children as well as providing for means to satisfy the outstanding arrearage owed to Day. {¶ 45} Day's third assignment of error is overruled. IV {¶ 46} Day's final assignment of error is as follows: {¶ 47} "THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO: {¶ 48} "1. COUNSEL FAILED TO CONDUCT AN ADEQUATE INVESTIGATION OF THE CASE." {¶ 49} "2. COUNSEL FAILED TO REQUEST FOR DISCOVERY IN A TIMELY MANNER." {¶ 50} "3. COUNSEL FAILED TO PRESENT ALL REBUTTAL EVIDENCES." {¶ 51} "4. COUNSEL FAILED TO ASK ALL REBUTTAL QUESTIONS." {¶ 52} "5. COUNSEL FAILED TO OBJECT TO THE FALSE AND MISLEADING EMERGENCY EX PARTE MOTION AND AFFIDAVIT STATEMENTS BY APPELLEE'S AND APPELLEE'S ATTORNEY." {¶ 53} "6. COUNSEL FAILED TO INFORM APPELLANT OF THE FACTS REGARDING ESCROW CHILD SUPPORT MONEYS (sic) AND COUNSEL MADE A NEGOTIATED AGREEMENT WITH TRIAL JUDGE AND APPELLEE'S ATTORNEY WITHOUT CONSENTING FIRST WITH THE APPELLANT." {¶ 54} "7. COUNSEL FAILED TO ACT IN THE APPELLANT'S BEHALF REGARDING THE APPELLANT BEING PRESENT AT ALL SCHEDULED PRE-TRIAL CONFERENCES AND HEARINGS AND WAS DENIED HER DUE PROCESS OF LAW." {¶ 55} In her final assignment, Day contends that she received ineffective assistance of counsel at the trial level. In support of this assertion, Day advances the following arguments: 1) failure to adequately investigate her case; 2) failure to request discovery in a timely manner; 3) failure to present rebuttal evidence; 4) failure to ask pertinent rebuttal questions; 5) failure to object to ex parte motion filed by appellee; 6) failure to inform appellant of issues surrounding the escrow account; and 7) failure to act on appellant's behalf at pre-trial conferences and hearings. {¶ 56} The Sixth Amendment to the United States Constitution provides a criminal defendant the right to effective assistance of counsel. Strickland v. Washington (1984), 466 U.S. 668, 686,104 S.Ct. 2052, 2063. However, there is no constitutional right to be represented by counsel in a civil proceeding between individual litigants. Roth v. Roth (1989), 64 Ohio App.3d 768,776, 585 N.E.2d 482. The right to effective assistance of trial counsel attaches only to criminal proceedings and to proceedings for the permanent, involuntary termination of parental rights.Bailey v. Bailey (Sept. 27, 1996), Clark App. No. 96-CA-02; seeJones v. Lucas City Children Serv. (1988), 46 Ohio App.3d 85,86, 546 N.E.2d 471. If a litigant chooses to seek representation by an attorney, the litigant cannot complain that the attorney was ineffective and consequently require the other litigant to bear the loss for the negligent selection of an attorney. Roth, supra, at 776. The proper remedy for a complaint of ineffective assistance of counsel in a civil suit may be a legal malpractice action. Additionally, the instant appeal does not involve the termination of Day's parental rights, merely a reallocation of those rights where she still maintains some visitation with her children. Thus, Day's final assignment of error fails to state a cause of action in a civil proceeding. {¶ 57} Day's final assignment of error is overruled. V {¶ 58} All of Day's assignments of error having been overruled, the decision of the trial court is affirmed. Brogan, P.J. and Fain, J., concur. 1 In the entry filed on April 21, 2005, the trial court ordered Day to pay $388.00 a month to Smith for child support payments.

2016-07-06 06:42:16.056388+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a Gallia County Common Pleas Court judgment of conviction and sentence. The jury found Cherise Jacobs, defendant below and appellant herein, guilty of felonious assault, in violation of R.C. 2903.11(A)(2). {¶ 2} Appellant raises the following assignments of error: {¶ 3} First Assignment of Error: {¶ 4} "The trial judge committed error prejudicial to the Defendant/Appellant when he allowed the prosecuting attorney to bring up, on cross examination of Defendant/Appellant, her multiple misdemeanor convictions from the gallipolis municipal court." {¶ 5} Second Assignment of Error: {¶ 6} "The Trial court committed error Prejudicial to Defendant/Appellant when it overruled Defendant/Appellant's request for a charge of aggravated assault, a violation of Section 2903.12 of the ohio revised code, and a possible lesser included offense." {¶ 7} During the late-night hours of July 25, 2003 and into the early morning hours of July 26, 2003, Anthony Logan had been drinking beer with a friend at a bar. They left the bar and came across appellant, who was sitting on a porch. The encounter ended when appellant shot Logan in the chest. {¶ 8} On August 26, 2003, the Gallia County Grand Jury returned an indictment charging appellant with felonious assault, in violation of R.C. 2903.11(A)(2). On October 20, 2003 and continuing on October 21, 2003, the court held a jury trial. {¶ 9} At trial, appellant and Logan, the victim, offered divergent accounts of the events precipitating the shooting. Logan stated that initially, he and appellant cordially talked. The conversation then turned into an argument when appellant used a racial slur to refer to him. While he was sitting in a chair, appellant walked into the house and returned a few seconds later. When she returned, she promptly shot him. {¶ 10} Appellant claimed that much more verbal arguing occurred before she shot Logan. She testified that she and Logan exchanged several "fuck yous" and "bitches" and that she kept telling him to leave. She explained that she reached into her purse to grab her gun because she thought Logan was going to hit her. She stated that because she has been physically abused in the past, she was afraid that Logan would hit her. She testified that she has filed several domestic violence complaints against the father of her children. {¶ 11} On cross-examination and over appellant's objection, the court permitted the prosecutor to ask appellant whether she had any domestic violence, assault, or criminal damaging convictions. She admitted that she did. {¶ 12} At the close of the evidence, appellant requested an aggravated assault instruction. The trial court did not find evidence of sufficient provocation to warrant the instruction. Appellant did not object before the jury retired. {¶ 13} On October 21, 2003, the jury found appellant guilty, and on November 10, 2003, the trial court sentenced appellant to five years imprisonment. Appellant filed a timely notice of appeal. I {¶ 14} In her first assignment of error, appellant argues that the trial court erroneously permitted the prosecutor to question her regarding prior misdemeanor convictions. {¶ 15} Appellee asserts that appellant opened the door to such questioning after she attempted to paint "herself as a helpless innocent person" by testifying to the abuse she suffered and to the number of charges she filed against the father of her children. {¶ 16} The decision to admit or exclude relevant evidence is within the sound discretion of the trial court. State v. Bey (1999), 85 Ohio St.3d 487, 490, 709 N.E.2d 484. Thus, the trial court's decision to admit or exclude relevant evidence cannot be reversed absent an abuse of that discretion. See, e.g., State v.Combs (1991), 62 Ohio St.3d 278, 581 N.E.2d 1071; State v.Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343; State v.Rooker (Apr. 15, 1993), Pike App. No. 483. The term "abuse of discretion" implies more than an error of law or judgment. Rather, the term suggests that the trial court acted in an unreasonable, arbitrary, or unconscionable manner. See, e.g.,State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715; Statev. Montgomery (1991), 61 Ohio St.3d 410, 575 N.E.2d 167. Furthermore, when applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe 1 (1991),57 Ohio St.3d 135, 566 N.E.2d 1181 (citing Berk v. Matthews (1990),53 Ohio St.3d 161, 359 N.E.2d 1301). {¶ 17} While the Rules of Evidence generally prohibit the use of character evidence to show that an accused has the propensity to commit the crime with which he stands charged, see State v.Thompson (1981), 66 Ohio St.2d 496, 497, 422 N.E.2d 855, 856;State v. Grubb (1996), 111 Ohio App.3d 277, 675 N.E.2d 1353, it is well-established that once an accused puts evidence of a pertinent character trait in issue, the prosecution may offer evidence to rebut the accused's character evidence. See Evid.R. 404(A)(1); see, generally, State v. Finnerty (1989),43 Ohio St.3d 104, 108, 543 N.E.2d 1233; State v. Rahman (1986),23 Ohio St.3d 146, 153, 492, N.E.2d 401. {¶ 18} Evid.R. 404(A)(1) provides: {¶ 19} Evidence of a pertinent trait of [the accused's] character offered by an accused, or by the prosecution to rebut the same is admissible; however in prosecutions for rape, gross sexual imposition, and prostitution, the exceptions provided by statute enacted by the General Assembly are applicable. {¶ 20} Thus, Evid.R. 404(A)(1) permits a criminal defendant to choose to "offer evidence of his good character as proof that he did not commit the act charged because such conduct is not in accord with his character." Gianelli and Snyder, Evidence (1996), 229. "If the accused offers evidence of his good character," however, "the prosecution [may] offer evidence of the bad character of the accused." Id. By introducing such evidence, the defendant "opens the door" for the prosecution, which is then permitted to rebut or impeach the character evidence on cross-examination. Evid.R. 405(A). Grubb, supra. {¶ 21} In the case at bar, appellant testified that she had been the victim of physical abuse on several occasions, dating back to when she was a "little girl." She thus painted herself as a victim who is afraid of physical violence. To rebut the implication, the prosecution presented evidence to show that appellant does not possess the character trait of a helpless victim. {¶ 22} Moreover, to the extent that appellant argues that Evid.R. 609(A) prohibited the evidence, we note that other courts have rejected the argument that Evid.R. 609(A)1 prohibits rebuttal evidence of an accused's character. See, generally,State v. Hewitt (1985), 26 Ohio App.3d 72, 498 N.E.2d 215 (stating that no error occurred when the trial court permitted the state to offer evidence of the defendant's prior convictions for purposes of attacking his credibility during the state's rebuttal as opposed to on cross-examination); Grubb, supra. {¶ 23} Accordingly, based upon the foregoing reasons, we overrule appellant's first assignment of error. II {¶ 24} In her second assignment of error, appellant contends that the trial court erred by overruling her request for an aggravated assault jury instruction. She claims that her past exposure to physical abuse heightened her fear on the night of the shooting and constituted sufficient provocation. We do not agree. {¶ 25} Initially, we note that appellant did not object to the trial court's instructions before the jury retired. The failure to object to a jury instruction before the jury retires in accordance with Crim.R. 30(A) constitutes a waiver, absent plain error. See, e.g., State v. Underwood (1983),3 Ohio St.3d 12, 444 N.E.2d 1332, syllabus; State v. Williford (1990),49 Ohio St.3d 247, 251, 551 N.E.2d 1279. The record in the case at bar does not demonstrate plain error. {¶ 26} Generally, a trial court has broad discretion in deciding how to fashion jury instructions. The trial court must not, however, fail to "fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder."State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus. Additionally, a trial court may not omit a requested instruction, if such instruction is "`a correct, pertinent statement of the law and [is] appropriate to the facts * * *.'" State v. Lessin (1993), 67 Ohio St.3d 487,493, 620 N.E.2d 72 (quoting State v. Nelson (1973),36 Ohio St.2d 79, 303 N.E.2d 865, paragraph one of the syllabus). {¶ 27} In determining whether to give a requested instruction, a trial court may inquire into the sufficiency of the evidence to support the requested instruction. See id. at 494. A trial court is vested with discretion to determine whether sufficient evidence was presented at trial to require a particular jury instruction. State v. Mitts (1998),81 Ohio St.3d 223, 228, 690 N.E.2d 522. If, however, the evidence does not warrant an instruction or if an instruction is not appropriate in light of the crime charged, the trial court is not obligated to give the instruction. See Lessin,67 Ohio St.3d at 494. Thus, in our review we must determine whether the trial court abused its discretion by finding that the evidence was insufficient to support the requested charge or that the requested instruction was not pertinent to the crime charged. SeeMitts; State v. Wolons (1989), 44 Ohio St.3d 64,541 N.E.2d 443, paragraph two of the syllabus; see, also, State v. Elijah (July 14, 2000), Montgomery App. No. 18034. We note that in general, an abuse of discretion may be found if the trial court's attitude was unreasonable, arbitrary or unconscionable. See, e.g., State v. Montgomery (1991), 61 Ohio St.3d 410, 413,575 N.E.2d 167. {¶ 28} In a felonious assault trial, a trial court must instruct the jury on aggravated assault when sufficient evidence of serious provocation exists.2 State v. Mack (1998),82 Ohio St.3d 198, 200, 694 N.E.2d 1328; see, also, State v.Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph four of the syllabus). To determine whether sufficient evidence of serious provocation exists, a trial court must employ a two-part inquiry. First, the court must objectively determine whether the alleged provocation is reasonably sufficient to bring on a sudden passion or fit of rage. Mack, 82 Ohio St.3d at 201. "`If this objective standard is met, the inquiry shifts to a subjective standard, to determine whether the defendant in the particular case `actually was under the influence of sudden passion or in a sudden fit of rage.'" Id. (quoting Shane,63 Ohio St.3d at 634-45). {¶ 29} In examining whether the provocation is reasonably sufficient to bring on a sudden passion or fit of rage, the Ohio Supreme Court has provided the following guidance: "`Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force.'" Id. at 200 (quoting Deem, paragraph five of the syllabus). "[T]he provocation must be `sufficient to arouse the passions of an ordinary person beyond the power of his or her control.'" Id. (quoting Shane, 63 Ohio St.3d at 634-45). {¶ 30} Generally, neither words alone nor fear itself will constitute evidence of serious provocation. See id. ("[W]ords alone will not constitute reasonably sufficient provocation to incite the use of deadly force in most situations"; and "[f]ear alone is insufficient to demonstrate the kind of emotional state necessary to constitute sudden passion or fit of rage."). {¶ 31} In Deem, the court determined that the provocation was not reasonably sufficient to bring on a sudden passion or fit of rage; thus, an aggravated assault instruction was not warranted. In Deem, the defendant and the victim had been involved in a romantic relationship. The couple subsequently ended their relationship. After a brief attempt to reconcile, each filed criminal charges against the other stemming from different confrontations. One day, the defendant waited in his car at a roadside park for the victim to pass by in her car on her way to work. After she drove by, the defendant followed her in his car, pulled alongside her, and motioned for her to pull to the road side. At some point, the cars bumped and eventually the defendant forced the victim's car off the road and into a ditch. The defendant stopped his car and went to the victim's car to attempt to convince her to open her window. When she refused, the defendant returned to his car, obtained a hammer, returned to the victim's car and smashed the driver's side window. Witness testimony established that the defendant reached through the broken window and stabbed the victim numerous times. The court concluded, as a matter of law, that the stormy relationship between the parties and the victim's alleged bumping of the defendant's car did not constitute sufficient provocation. See, also, State v. Koballa, Cuyahoga App. No. 82013, 2003-Ohio-3535 (concluding that sufficient provocation did not exist when the victim grabbed the defendant by the testicles and the arm);State v. Poe (Oct. 6, 2000), Pike App. No. 00CA9 (concluding that the victim's conduct in approaching the defendant with a hammer and stating "come on" did not constitute sufficient provocation); State v. Pack (June 20, 1994), Pike App. No. 93CA525 ("We find that a mere shove and a swing (which appellant by his own testimony ducked) are insufficient as a matter of law to constitute serious provocation reasonably sufficient to incite or arouse appellant into using deadly force."). {¶ 32} In the case at bar, the record fails to show sufficient provocation so as to warrant an aggravated assault instruction. Appellant claims that she was scared, but as the cases have repeatedly recognized, fear alone does not constitute sufficient provocation. See, e.g., Mack, 82 Ohio St.3d at 201 ("Fear alone is insufficient to demonstrate the kind of emotional state necessary to constitute sudden passion or fit of rage."). Cf. State v. Maggard (June 4, 1999), Montgomery App. No. 17198 (concluding that evidence did not show that the defendant acted under a sudden fit of passion or rage when the defendant's testimony was simply that he was afraid and that he shot in self-defense). {¶ 33} Thus, the trial court did not abuse its discretion by overruling appellant's request to instruct the jury that it could convict appellant of aggravated assault. {¶ 34} Accordingly, based upon the foregoing reasons, we overrule appellant's second assignment of error and affirm the trial court's judgment. Judgment Affirmed. Judgment Entry. It is ordered that the judgment be affirmed and that appellee recover of appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Gallia Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Kline, P.J. Harsha, J.: Concur in Judgment Opinion. 1 Evid.R. 609 limits impeachment by evidence of conviction of a crime to (1) crimes punishable by death or imprisonment in excess of one year, or (2) crimes involving dishonesty or false statement, regardless of the punishment. 2 The elements of aggravated assault and felonious assault are identical except that aggravated assault contains the mitigating element of serious provocation. State v. Mack (1998), 82 Ohio St.3d 198, 200, 694 N.E.2d 1328. R.C.2903.11(A)(1) defines felonious assault as: "No person shall knowingly * * * [c]ause serious physical harm to another." R.C.2903.12(A)(1) sets forth the offense of aggravated assault: "No person, while under the influence of sudden passion or in a fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly * * * [c]ause serious physical harm to another."

2016-07-06 06:42:16.119473+00

OPINION {¶ 1} Defendant, Rodney Foust, appeals from his conviction and sentence for assault and unlawful restraint. {¶ 2} Rosalyn Murphy was the office manager for a mortgage closing business in Vandalia owned by Foust. Murphy and Defendant were also involved in a romantic relationship for several years. Murphy terminated that relationship on or about January 1, 2004. As a result, Defendant and Murphy discussed ending their employment relationship. {¶ 3} On January 16, 2004, Defendant came in to work and told Murphy that he didn't think she should continue working for him. Murphy agreed. After Murphy gathered her personal belongings and began to leave, Defendant grabbed Murphy's personal cell phone and refused to return it to her. Murphy's efforts to get her cell phone back resulted in a physical altercation with Defendant. {¶ 4} While trying to retrieve her cell phone, Murphy ripped Defendant's sweater. Defendant began pushing Murphy around, finally pinning her up against a fax machine, bruising her lower back. Defendant also grabbed Murphy by the arms and her clothing and pulled her along the floor to a back office, resulting in "rug burns" to Murphy's leg. In the back office, away from any windows, Defendant slung Murphy to the floor and sat on top of her while he examined the call log on her cell phone to learn what personal calls she had made. {¶ 5} After Defendant let Murphy up and returned her cell phone, she walked to her car to leave. Defendant followed her to the parking lot and tried to prevent Murphy from leaving. Defendant reached inside the car across Murphy and attempted to take her car keys from the ignition. When Murphy resisted, Defendant bit her on the hand. In return, Murphy bit Defendant on the arm. Defendant was able to take a child support check payable to Murphy from inside her car. Rather than following Defendant back inside th office to get the check, Murphy drove away and later called police. Photographs were taken of the rug burns on Murphy's leg and the bite marks on her hand. When police contacted Defendant by phone, he told them Murphy could not have her check back until she returned office equipment that was in her possession. {¶ 6} Defendant's version of the events is vastly different from Murphy's. He claims that he fired Murphy because of her poor job performance, and when he did, Murphy became angry and upset and attacked him. According to Defendant, Murphy came at him swinging and scratching, and he merely attempted to defend himself against further attack. Defendant denied pushing, striking, biting, or sitting on Murphy. He also denied dragging her to the back office or taking the child support check from her car. Defendant claims that the only items he removed from Murphy's car were keys to the office and the office appointment book. Defendant claims that he told Murphy she could stop by the office and pick up her personal belongings, which included a child support check, after he returned to the office from property closings. {¶ 7} Defendant was charged by complaint in Vandalia Municipal Court with one count of assault in violation of section 636.02 of the Vandalia Ordinances and one count of unlawful restraint in violation of section 636.07 of those ordinances. Following a trial to the court, Defendant was found guilty of both offenses. The trial court fined Defendant two hundred fifty dollars plus court costs, but suspended two hundred dollars of the fine. Execution of Defendant's sentence was stayed pending this appeal. {¶ 8} Defendant has timely appealed to this court from his conviction and sentence. {¶ 9} First assignment of error {¶ 10} "The trial court committed prejudicial error in unduly restricting appellant's right of cross-examination of the alleged victim and thereby deprived appellant of a fair trial, as is guaranteed by thesixth amendment to the united states constitution and article I, section10 of the ohio constitution." {¶ 11} Defendant argues that the trial court abused its discretion in not allowing him to cross-examine the alleged victim, Rosalynn Murphy, on matters relevant to her credibility. Specifically, Defendant wished to cross-examine Murphy regarding: (1) whether Murphy had misrepresented to school officials what school district her children live in, (2) whether Murphy had violated a noncompete agreement she signed during the course of her employment with Defendant, (3) whether Murphy had defrauded the federal government by misrepresenting that she was unemployed when she applied for food stamps, (4) whether any criminal charges were ever filed against Murphy for the injuries she caused Defendant during this altercation, and (5) whether on previous occasions when Murphy and Defendant argued, those incidents had involved any acts of violence and whether any charges were ever filed. {¶ 12} Although Defendant argued that he wanted to cross-examine Murphy about these matters in order to demonstrate her bias, prejudice, interest and motive to misrepresent, and thus impeach her credibility, the trial court refused to allow any inquiry into these matters, ruling that they were irrelevant to the issues in this case and did not test the credibility of anything Murphy testified to on direct examination. {¶ 13} The constitutional right of cross-examination includes the right to impeach a witness's credibility. State v. Green,66 Ohio St.3d 141, 1993-Ohio-26; State v. Brewer (August 24, 1994), Montgomery App. No. 13866; Evid.R. 611(B). Unlike Federal Crim.R. 611, which generally limits cross-examination to matters raised during direct, Ohio Crim.R. 611(B) permits cross-examination on all relevant issues and matters relating to credibility. Weissenberger, Ohio Evidence 2005 Courtroom Manual, at p. 245-246. Possible bias, prejudice, pecuniary interest in the litigation or motive to misrepresent facts, are matters that may affect credibility. Evid.R. 616(A); State v. Ferguson (1983),5 Ohio St. 3d 160. The denial of full and effective cross-examination of any witness who identifies Defendant and the perpetrator of the offense, is the denial of the fundamental constitutional right of confrontation essential to a fair trial. State v. Hannah (1978), 54 Ohio St.2d 84;Brewer, supra. {¶ 14} On the other hand, trial courts have wide latitude in imposing reasonable limits on the scope of cross-examination based upon concerns about harassment, prejudice, confusion of the issues, the witness's safety, or repetitive, marginally relevant interrogation. Delaware v. VanArsdall (1986), 475 U.S. 673, 106 S.Ct. 1431. It is within the trial court's broad discretion to determine whether testimony is relevant, and to balance its potential probative value against the danger of unfair prejudice. In re Fugate (2000), Darke App. No. 1512. We will not interfere with the trial court's decision in those matters absent an abuse of discretion. Id. An abuse of discretion means more than a mere error of law or an error in judgment. It implies an arbitrary, unreasonable, unconscionable attitude on the part of the trial court. Id. {¶ 15} This case presents a classic "he said, she said" credibility contest between the victim, Murphy, and Defendant. Murphy's testimony is the only evidence that identifies Defendant as the perpetrator of these crimes and demonstrates the elements of the offenses with which Defendant is charged. Thus, Murphy's credibility was a crucial issue in establishing Defendant's guilt. That said, however, we agree with the trial court that the issues about which Defendant wished to cross-examine Murphy had no relevance to whether on January 16, 2004, Defendant assaulted Murphy and unlawfully restrained her. Furthermore, such extraneous side issues would have injected into this case legitimate concerns over harassment of the victim and confusion of the issues vis-a-vis putting the victim on trial. {¶ 16} Whatever marginal probative value these extraneous areas of inquiry might have had in impeaching Murphy's credibility generally was far outweighed by the danger of unfair prejudice that could result from inquiry into those areas. Evid.R. 403(A). Under those circumstances, the limits the trial court placed upon the scope of cross-examination of the victim Murphy were entirely reasonable and not an abuse of discretion. {¶ 17} The trial court also excluded other evidence Defendant attempted to offer to impeach Murphy's credibility. {¶ 18} Defendant asked Murphy on cross-examination whether she had acted angrily on an earlier occasion when she entered Defendant's home to find him with another woman, Amanda Felts. Murphy denied the accusation. Subsequently, the court refused to allow Murphy to inquire of Amanda Felts about the incident. The ruling was correct. Specific instances of a witness's prior conduct, offered for the purpose of attacking the witness's character for truthfulness, other than conviction of a crime, may not be proved by extrinsic evidence, but only during cross-examination of the witness. Evid.R. 608(B). The proposed testimony of Amanda Felts concerning Murphy's reaction was such extrinsic evidence. Defendant was "stuck" with the answer Murphy gave on cross-examination. {¶ 19} Defendant also proffered testimony that Felts would have offered that Murphy, when she found Defendant and Felts together, threw a glass of wine in Defendant's face. That is evidence tending to show Murphy's bias or prejudice against Defendant. It was admissible per Evid.R. 616(A), "either by examination of the witness (Murphy) or by extrinsic evidence." Felts' testimony was such admissible extrinsic evidence. Therefore, the trial court erred when it excluded her testimony regarding the matter. However, in view of the other evidence the State offered, including evidence of the rug burns to Murphy's leg that clearly bespeak aggression on the part of Defendant, the error is harmless beyond a reasonable doubt. {¶ 20} The first assignment of error is overruled. {¶ 21} Second assignment of error {¶ 22} "Appellant's adjudication of guilt is contrary to law and to the due process clause of the fourteenth amendment to the constitution of the united states and article I, section 16 of the ohio constitution in that there was insufficient evidence adduced to establish each and every element of the offense beyond a reasonable doubt. appellant's conviction is accordingly against the manifest weight of the evidence." {¶ 23} Although this assignment of error refers to both sufficiency and weight of the evidence, Defendant's argument only implicates the weight of the evidence. Defendant points out that he and the victim Murphy presented conflicting versions of the altercation in question. The trial court did not expressly find that Defendant's testimony was not credible. Furthermore, Defendant claims that Murphy's version of the events is not consistent with the physical evidence, which implies that Murphy's testimony is not credible or worthy of belief. Thus, Defendant is arguing that the guilty verdicts are against the manifest weight of the evidence. {¶ 24} A weight of the evidence argument challenges the believability of the evidence, and asks which of the competing inferences suggested by the evidence is more believable or persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App. No. 15562, unreported. The proper test to apply to that inquiry is the one set forth in State v. Martin (1983),20 Ohio App.3d 172, 175: {¶ 25} "[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Accord: State v.Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. {¶ 26} The credibility of the witnesses and the weight to be given to their testimony is a matter for the trier of facts to resolve. State v.DeHass (1967), 10 Ohio St.2d 230. In State v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed: {¶ 27} "[b]ecause the factfinder . . . has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder's determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness." Id., at p. 4. {¶ 28} It is the State's burden at trial to prove the criminal charge or charges alleged beyond a reasonable doubt. However, when a convicted defendant argues on appeal that his conviction is against the manifest weight of the evidence, the defendant bears the burden of that proposition. He must show that his conviction is contrary to the weight of the evidence offered, not merely that the probative value of the evidence offered by both sides is in equipoise. In that circumstance, this court will not substitute its judgment for that of the trier of facts on issues such as witness credibility, unless it is patently apparent that the trier of facts lost its way in arriving at its verdict. State v. Bradley (October 24, 1997), Champaign App. No. 97-CA-03. {¶ 29} The trial court in this case, sitting as the trier of facts, did not lose its way simply because it chose to believe Murphy's version of the events rather than Defendant's, which it was entitled to do. In reviewing this record as a whole we cannot say that the evidence weighs heavily against a conviction, that the trier of facts lost its way, or that a manifest miscarriage of justice has occurred. Defendant's conviction is not against the manifest weight of the evidence. {¶ 30} The second assignment of error is overruled. The judgment of the trial court will be affirmed. Brogan, P.J. and Wolff, J., concur.

2016-07-06 06:42:16.167215+00

{¶ 52} I respectfully disagree with the majority regarding appellants' first assignment of error. In executing a cognovit note and allowing a confession of judgment, the maker of the note waives his or her rights to notice and a prejudgment hearing.2 When a Civ.R. 60(B) motion for relief from judgment is entered in response to a cognovit judgment, the burden necessary to prevail is less stringent.3 The existence of a meritorious defense to all or part of the claim is often sufficient to justify relief from judgment, provided the motion is timely.4 {¶ 53} Moreover, "where relief is pursued in a timely manner and in light of a proper allegation of a meritorious defense, any doubt should be resolved in favor of setting aside the judgment so that the case may be decided on the merits."5 {¶ 54} In their motion for relief from judgment, appellants alleged three meritorious defenses: (1) appellee agreed orally to modify the contract such that the note was not payable while the parties sought a buyer for the companies; (2) appellee failed to mitigate her damages; and (3) appellee breached her fiduciary duty to the companies, causing the businesses to fail and damage to the collateral. The trial court found that appellants' defenses were "not well taken and hereby denied," without addressing any of the defenses specifically alleged. {¶ 55} Regarding their first defense, appellants allege appellee orally agreed to forbear enforcing the cognovit note pending the search for a viable buyer for both companies. Appellant Michael Hiener provided an affidavit alleging such. In addition, appellants subsequently provided an affidavit from appellee's former counsel, Kevin Donovan, who negotiated the stock purchase agreement on appellee's behalf. {¶ 56} In his affidavit, Donovan asserted that he sent a letter and proposed forbearance agreement to appellants at appellee's request. That forbearance agreement provided that appellee would delay enforcement of the cognovit note with the caveat that certain conditions had to be met. Some key conditions included in the agreement were: requiring George Vince to resign as employee, director, and officer of the companies until the note was fully paid; hiring an outside individual by the name of Maria Bocskey to manage daily operations of the companies; and refraining from compensating either Michael Hiener or George Vince until the note was paid. The parties ultimately could not reach an agreement on the conditions of the forbearance, and the agreement was never formally executed. However, the assertions of both Michael Hiener and Attorney Donovan are somewhat contrary to appellee's assertions. Moreover, appellee's statements in her own affidavit are somewhat contrary to each other. Appellee makes the following statements in her affidavit in response to the motion for relief, "[a]t no time did I promise, either orally or in writing, to forbear from enforcement of the Note until such time as the companies were sold or that some other resolution was agreed upon." {¶ 57} The next statement follows: {¶ 58} "I did communicate to the Defendants that I would delay enforcement of the Note for a limited time while Vince and Hiener sought buyers for the companies. I received no consideration for this accommodation. At no time did I waive, release or limit my right to enforce the Defendants' obligations under the Note. It was understood that the Vinces and the Hieners would remain liable for any amounts due under the Note not satisfied by the proceeds of the sale." {¶ 59} Thus, appellee first alleges that she did not make promises, orally or in writing, to forbear on enforcement of the note, but then states she did communicate to appellants that she would forbear on enforcement of the note. The second statement which incorporates a contention that no modification of the contract occurred because appellee received no consideration is contradictory. Appellee alleges that she made a mere accommodation to appellants and not an oral modification of the agreement. As proof, appellee cites the fact that she received no separate consideration for agreeing to forbear on enforcement. However, the reason for the forbearance was to work with appellants to secure a buyer for the companies. The necessity for a buyer was apparent. The due date for the final balloon payment had passed and appellants had defaulted on the note due to the faltering viability of the companies and the lack of the needed capital available to make the final payment. Thus, a new, solvent buyer would provide the funds necessary to repay the note. As such, appellee stood a better chance of receiving her monies if a buyer was secured. The consideration in the "accommodation" was the potential of locating a buyer who would provide the necessary monies in a relatively short period of time, as opposed to the extended litigation of the cognovit, in which the parties are currently embroiled. {¶ 60} Appellants also alleged two other meritorious defenses in their motion: (1) appellee failed to mitigate her damages; and (2) breached a fiduciary duty. Appellants assert appellee failed to mitigate her damages when she failed to follow-up or respond on any prospective buyers that were presented to her by appellants. Appellants alleged in their motion that both MTS, the title company through which the companies maintained an agency agreement, and other potential buyers were presented to appellee but she failed to contact them. Appellants also asserted that MTS offered appellee a large sum of money to relinquish her claims against the companies but appellee refused. In response, both appellee and her accountant, Richard Sippola, allege they considered all potential buyers and explored other leads but no offers were made. Appellants presented evidence of buyers, which received no response from appellee and, as such, have presented a meritorious defense in that appellee had agreed to forebear on enforcement until a buyer could be found but did not respond in securing a buyer when they were presented. {¶ 61} Based on the evidence presented, appellants presented meritorious defenses to the judgment and "any doubt should be resolved in favor of setting aside the judgment so that the case may be decided on the merits."6 {¶ 62} Accordingly, I must respectfully dissent. 2 D.H. Overmyer Co., Inc., of Ohio v. Frick Co. (1972),405 U.S. 174, 176-177. 3 Natl. City Bank v. Concorde Controls, Inc., 11th Dist. No. 2001-L-113, 2002-Ohio-6578, at ¶ 17. 4 Id. 5 Advanced Clinical Mgt., Inc. v. Salem Chiropractic Ctr.,Inc., 5th Dist. No. 2002CA00108, 2004-Ohio-120, at ¶ 16. 6 Id.

2016-07-06 06:42:16.197048+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: Plaintiff Delores Karpinski has appealed from a judgment of the Summit County Common Pleas Court that granted defendant The Billow Company ("Billow") summary judgment. She has argued that the trial court incorrectly granted Billow summary judgment because she presented evidence from which "[a] jury could reasonably conclude [that Billow] was negligent." This Court affirms the trial court's judgment because Ms. Karpinski failed to present any evidence that Billow's alleged negligent conduct was the cause of her injuries. I. On May 4, 1995, Ms. Karpinski went to a funeral home owned by Billow to make funeral arrangements for her husband, who had died the previous day. She entered the funeral home, accompanied by her daughter and son-in-law, and was greeted by Fred Rieman, the funeral director. Mr. Rieman attempted to lead them to a basement lounge area where they would discuss funeral arrangements. Ms. Karpinski followed behind Mr. Rieman, her daughter, and her son-in-law. Although she thought the stairs were poorly lit and the carpeting was "spongy," she descended the basement stairs without incident until she reached the last step. From the last step, Ms. Karpinski attempted to walk forward because she thought she was standing on the basement floor. Because she was actually one step above the floor, however, she lost her balance, fell, and sustained injuries. Ms. Karpinski brought this negligence action against Billow, alleging that her injuries had been caused by Billow's failure to correct the "hazardous condition" created by "the spongy condition of the carpeting and the dim lighting conditions" of the basement stairway. Billow moved for summary judgment, contending that Ms. Karpinski could not prove that it had breached any duty to her or that any alleged breach had caused her injuries. Billow attached supporting evidence, including the deposition testimony of Ms. Karpinski. Ms. Karpinski responded in opposition with her own evidence, but the trial court concluded that she had failed to dispute her own testimony that her fall was not caused by the alleged negligent conduct of Billow. The trial court granted Billow summary judgment. Ms. Karpinski timely appealed to this Court. II. Ms. Karpinski's sole assignment of error is that the trial court incorrectly granted Billow summary judgment. In reviewing a trial court's ruling on a motion for summary judgment, this Court applies the same standard that a trial court is required to apply in the first instance: whether there were any genuine issues of material fact and whether the moving party was entitled to judgment as a matter of law. Parenti v. Goodyear Tire RubberCo. (1990), 66 Ohio App.3d 826, 829. To establish a claim of negligence against Billow, Ms. Karpinski was required to prove that Billow owed a duty to her, that it breached its duty, and that her injuries "proximately resulted therefrom." Jeffers v. Olexo (1989), 43 Ohio St.3d 140,142. By its motion for summary judgment, Billow asserted, with supporting evidence, that Ms. Karpinski could not establish that it breached a duty to her or that any alleged breach was the proximate cause of her injuries. On appeal, Ms. Karpinski has focused her arguments on whether the evidence demonstrated the elements of duty and breach. Because her failure to present any evidence of causation was dispositive, however, this Court will confine its discussion to that element. Billow supported its motion for summary judgment with deposition testimony of Ms. Karpinski. Although Ms. Karpinski testified that the carpet on the stairs was "spongy," she admitted that the sponginess of the carpet had not caused her to fall. She further stated that, although the lighting on the stairs seemed dim to her, she had fallen because she saw the other members of her group standing ahead of her and she "thought [she] was on the floor part." Based on this testimony, Billow asserted that Ms. Karpinski had fallen due to her own mistaken belief that she was at floor level, and there was no evidence that the alleged poor lighting or soft carpeting had contributed to the fall. Ms. Karpinski opposed summary judgment and attached her own affidavit. Her only statements relating to the cause of her fall were the following: "The stairs had a spongy feel and I thought I had reached the floor. I looked up and saw my daughter and Mr. Rieman and I fell forward." This evidence, however, failed to demonstrate that the carpet or lighting of the basement stairway contributed to her fall in any way. Because there was no evidence before the trial court that the alleged negligent conduct of Billow was the cause of Ms. Karpinski's injuries, the trial court correctly granted Billow summary judgment. Ms. Karpinski's assignment of error is overruled. III. Ms. Karpinski's assignment of error is overruled. The judgment of the trial court is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this court, directing the County of Summit Common Pleas Court to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to appellant. Exceptions. _________________________________ CLAIR E. DICKINSON, FOR THE COURT QUILLIN, P. J. BAIRD, J., CONCUR

2016-07-06 06:42:16.223888+00

Defendants-appellants City of Cleveland and the Board of Zoning Appeals for the City of Cleveland (collectively "the City") denied the application of plaintiffs-appellees 1476 Davenport Ave. Limited Partnership and 1476 Davenport, Inc. (collectively "1476 Davenport") for a permit to build a hotel. The Cuyahoga County Court of Common Pleas reversed the Board of Zoning Appeal's decision and, therefrom, the City has filed the instant appeal. The City has assigned the following error for our review: THE COURT BELOW ERRED IN HOLDING THAT THE DECISION OF THE BOARD OF ZONING APPEALS WAS ARBITRARY, CAPRICIOUS AND ILLEGAL. Finding the City's assignment of error to lack merit, the judgment of the trial court is affirmed. I. On January 14, 1997, 1476 Davenport filed an application with the City for a permit to build a five-story, 100-room hotel building. 1476 Davenport proposed erecting the 48- by 165-foot building at 1511 Lakeside Avenue in Cleveland, Ohio, a 348- by 231-foot corner parcel located in a "Semi-Industry District" of the City. According to the proposal, the hotel building would be built approximately 183 feet from the parcel's northern border with an adjoining "General Industry District." On March 7, 1997, the City's Commissioner of Building and Housing ("the Building Commissioner") issued notice of its denial of 1476 Davenport's application. The Building Commissioner found that the proposed hotel would be a "multiple dwelling" and, therefore, the hotel would violate Cleveland Codified Ordinance ("C.C.O.") 345.03(b), which prohibits multiple dwellings in Semi-Industry Districts from being "within 200 feet of the boundary line of an adjoining General or Unrestricted Industry District." On or about March 26, 1997, 1476 Davenport filed an appeal from the decision of the Building Commissioner to the Cleveland Board of Zoning Appeals. On July 28, 1997, the Board of Zoning Appeals conducted a public hearing on 1476 Davenport's appeal. In a resolution dated August 4, 1997, the Board refused the appeal; the Board's decision stated in part: 1. The evidence establishes that the decision of the Commissioner of the Division of Building and Housing to deny the issuance of the building permit based on Cleveland Codified Ordinance Section 345.03(b), which prohibits multiple dwellings within 200' of a General Industry District, was not arbitrary and/or capricious. On August 21, 1997, 1476 Davenport filed an appeal in the Cuyahoga County Court of Common Pleas from the decision of the Board of Zoning Appeals. In a journal entry filed on June 5, 1998, the trial court stated: It is the finding of this Court that the decision of the Board of Zoning Appeals for the City of Cleveland is contrary to the applicable law of existing zoning classifications. Characterizing "hotels" as "multiple" dwellings is a misapplication of the zoning code. This Court further finds that the decision of the Board of Zoning Appeals for the City of Cleveland was arbitrary, capricious and illegal. Case is remanded back to the Board of Zoning Appeals for an order consistent with the findings of the Court. Final. The City filed a timely notice of appeal from, the judgment of the trial court on July 1, 1998. II. In its sole assignment of error, the City claims that the trial court erred in reversing the decision of the Board of Zoning Appeals. Pursuant to R.C. 2506.04, a court of common pleas should not substitute its judgment for that of an administrative board, such as the board of zoning appeals, unless the court finds that the administrative decision was "unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record." In reviewing the decision of the trial court, an appellate court must determine whether the trial court abused its discretion. OSWGI, L.P. v. N. Royalton Bd. of Zoning Appeals (1996), 113 Ohio App.3d 268, 271. The term "abuse of discretion" connotes more than just an error of law or judgment; it implies that the court's attitude was unreasonable, arbitrary, or unconscionable. See Raceway Video and Bookshop, Inc. v. ClevelandBd. of Zoning Appeals (1997), 118 Ohio App.3d 264, 269. In the instant case, the Board of Zoning Appeals based the denial of 1476 Davenport's application for a permit upon C.C.O. 345.03(b). C.C.O. 345.03 governs zoning issues in Semi-Industry Districts; C.C.O. 345.03(b) prohibits the erection of a multiple dwelling "within 200 feet of the boundary line of an adjoining General or Unrestricted Industry District." The Board found that the proposed hotel would be a "multiple dwelling" and, because the hotel would be situated approximately 183 feet from the parcel's northern border with an adjoining General Industry District, 1476 Davenport's permit was denied. The trial court found the Board's decision to be contrary to the City's zoning ordinances and classifications; in particular, the court found that the Board erred in characterizing the proposed hotel as a "multiple dwelling." Zoning regulations deprive property owners of certain uses of their property and are in derogation of common law; therefore, zoning regulations must be strictly construed against the restriction of the use of such property and in favor of permitting the use proposed by the owner. Jones v. Chagrin Falls (1997), 116 Ohio App.3d 249, 253. "[T]he scope of [zoning] restrictions cannot be extended to include limitations not clearly prescribed." Saunders v. Clark Cty. Zoning Dept. (1981),66 Ohio St.2d 259, 261. C.C.O. 325.49, which defines the term "multiple dwelling", states: "Multiple dwelling" means a building other than a dwelling house, row house or institution occupied in whole or part as a residence. It includes apartment houses, rooming houses and other buildings classified as Class A or Class B multiple dwellings. (Emphasis added.) As a threshold requirement under C.C.O. 325.49, a multiple dwelling must be "occupied * * * as a residence." Pursuant to C.C.O. 325.35: "`Hotel' means a building or part thereof operated as a public inn and containing ten or more guest rooms for hire. Under the City's zoning ordinance, a hotel is not considered a "residence"; instead, hotels are expressly classified as a general retail business use. C.C.O. 343.11(b)(2)(Q)(3). We find, as a matter of law, that a "hotel" is not a "residence" and, therefore, not a "multiple dwelling" under the City's zoning ordinances. Moreover, "hotels" are not listed as a "Multiple Dwelling, Class A" in C.C.O. 325.50 or a "Multiple Dwelling, Class B" in C.C.O. 325.51. The City notes that the lists in these ordinances are inclusive, not exclusive. Notwithstanding, "hotels" could easily have been included in C.C.O. 325.50 or C.C.O. 325.51 but, because they were not, the doctrine of expressio unius estexclusio alterius applies.1 Cf. State ex rel. Celebrezze v.Natl. Lime Stone Co. (1994), 68 Ohio St.3d 377, 382. This proposition is strengthened by the fact that "hotels" are listed in C.C.O. 3125.25(d), which lists "Class B Multiple Dwellings" for purposes of the Building Code. The list contained in C.C.O. 3125.25(d) is identical to the list of "Multiple Dwellings, Class B" in C.C.O. 325.51 with two exceptions, viz., "hotels" and "motels" are expressly included in C.C.O. 3125.25(d). This leads to the inference that "hotels" were deliberately excluded from C.C.O. 325.51 and, therefore, "hotels" should not be considered multiple dwellings for purposes of the Zoning Code. Based upon the foregoing, we find that the trial court did not abuse its discretion in reversing the decision of the Board of Zoning Appeals. The Board's decision was clearly illegal and based upon the erroneous classification of the proposed hotel as a multiple dwelling. We find, as a matter of law, that the proposed hotel would not be a multiple dwelling and, therefore, it may be built within 200 feet of the adjoining General Industry District without violating C.C.O. 345.03(b). Accordingly, the City's assignment of error is without merit. The judgment of the trial court is affirmed. It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DIANE KARPINSKI, P.J. and TIMOTHY E. McMONAGLE, J.CONCUR. _________________________________ LEO M. SPELLACY JUDGE 1 "`A maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another. Burgin v.Forbes [(1943)] 293 Ky. 456, 169 S.W.2d 321, 325; Newblock v.Bowles [(1935)] 170 Okl. 487, 40 P.2d 1097, 1100. Mention of one thing implies exclusion of another. When certain persons or things are specified in a law, contract, or will, an intention to exclude all others from its operation may be inferred. * * *'"Vincent v. Civ. Serv. Comm., Zanesville (1990), 54 Ohio St.3d 30, fn. 2, quoting Black's Law Dictionary (6 Ed. 1990) 581.

2016-07-06 06:42:16.812751+00

OPINION Defendant-appellant, Craig Guenther, appeals the decision of the Butler County Court of Common Pleas, Domestic Relations Division, ordering him to pay spousal support, obtain life insurance to secure his spousal support obligation, and exclusively pay credit card debts. The decision of the trial court is affirmed as modified. Appellant and plaintiff-appellee, Beverly Guenther, were married on April 25, 1981. On March 6, 2000, appellee filed for divorce. At the time of the divorce, the three children of the marriage were ages eighteen, seventeen, and fifteen. Appellant is a forty-three-year-old high school graduate with an income of approximately $44,500 per year. Appellee is a forty-seven-year-old high school graduate with an income of $20,800 per year. The trial court ordered an equal division of the marital assets and ordered appellant to pay $738 per month in child support. Appellant was further ordered to exclusively pay the Visa credit card debt. The trial court also ordered appellant to pay appellee $550 per month for spousal support and to obtain life insurance to secure his spousal support obligation. This appeal follows in which appellant raises three assignments of error: Assignment of Error No. 1: The trial court erred in ordering appellant to pay the credit card debt. The reviewing court must view property division in its entirety, consider the totality of the circumstances, and determine whether the trial court abused its discretion when dividing the parties' marital assets and liabilities. Briganti v. Briganti (1984), 9 Ohio St.3d 220,222. The term abuse of discretion connotes more than an error of law or judgment; "it implies that the court's attitude is unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219. When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court but must be guided by the presumption that the findings of the trial court are correct. Brewer v. Brewer (Apr. 27, 1998), Warren App. No. CA97-01-009, unreported, at 6. The trial court determined appellant should pay the entire Visa debt pursuant to a temporary order regarding payment of marital debts during the pendency of the divorce. The temporary order dictates that debts will be paid according to "the established practices of the household." Appellant argues that based upon the size of the approximately $1,500 Visa debt, the past practice of the household would have been to pay the Visa debt with funds from the marital savings account. Appellant asserts the Visa debt should not be paid with his post decree earnings but should be paid with marital assets so both parties pay fifty percent of the debt. Furthermore, appellant argues appellee was prohibited from incurring the debt based upon a restraining order. The restraining order prohibited appellee "from incurring any debt or making any credit card purchase on any account either in the other party's name or in joint names." Appellee testified, and presented receipts to confirm, that the Visa debt was incurred on a card held only in her name for new prescription glasses, contact lenses, clothing, and back-to-school items for their children. Appellee testified these items constituted ordinary household expenses and were charged on a credit card as was the established practice of the household. Furthermore, appellee maintains she was forced to purchase those items with the Visa credit card because appellant would not contribute cash funds for the purchases required by the children. Furthermore, appellee testified that the approximately $1,500 expended was the ordinary, reasonable, and necessary expense for three children requiring these items. There was no testimony to refute appellee's assertion that it was the established practice of the household to purchase contact lenses, prescription glasses, and back-to-school items together and incur a $1,500 debt at one time. There was also no testimony to refute what was the parties' past practice of appellant exclusively paying for those usual yearly purchases. The restraining order did not prohibit appellee from incurring debt in her name. Therefore, the trial court determined these debts were routine household expenses as the children regularly obtain new clothes and "go to the eye doctor each year before school starts." In ordering appellant to pay the entire Visa debt, the trial court was simply enforcing the initial order regarding the payment of marital debts incurred according to the established practices of the household. Consequently, the trial court's decision was not unreasonable, arbitrary, or unconscionable. Therefore, the first assignment of error is overruled. Assignment of Error No. 2: The trial court erred in ordering the amount and commencement date of spousal support. The trial court is given wide latitude in determining the amount of spousal support to be awarded, as long as the trial court properly considers the statutory factors of R.C. 3105.18(C).1 Schneider v.Schneider (1996), 110 Ohio App.3d 487, 494. An appellate court may not substitute its judgment for that of the trial court and a trial court's decision regarding spousal support will be reversed only if found to be an abuse of that discretion. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128,130-131. A trial court is not required to enumerate each factor in R.C.3105.18(C)(1), but must merely provide a sufficient basis to support its award. Bowen v. Bowen (1999), 132 Ohio App.3d 616, 628. Further, this court should be guided by the presumption that the trial court's findings are correct. Miller v. Miller (1988), 37 Ohio St.3d 71, 74. Appellant argues that the trial court was unreasonable in establishing the amount of spousal support. Appellant maintains that based upon the amount of child and spousal support, he receives thirty-nine percent of the total after-tax income while appellee receives sixty-one percent of the after-tax income. Appellant moved to reduce child and spousal support when he was required to accept another position with his employer and his earnings were diminished. On January 23, 2001 the amount of child support was recalculated but spousal support was not reduced. Appellee argues her monthly income is insufficient to pay all her expenses since she must borrow funds in order to pay appellant for his share of the marital equity in the home. While caring for the children, appellee is also currently attempting to obtain a college degree. Appellee expects obtaining a degree will take another four years, and her income is restricted until she graduates. The trial court awarded spousal support of $550 per month for four years. The trial court stated it considered all the factors in R.C.3105.18 when ordering spousal support and in determining the amount of spousal support. The trial court specifically found that the length of the marriage was over eighteen years. Appellant earns more than twice what appellee earns. Appellee remained home to be the primary caretaker of the children during the marriage, and this necessarily decreased her ability to increase her earning capacity. After returning to work appellee could only obtain part-time employment. Appellee has only been able to find full-time employment in the past two years. Appellant is forty-three years old while appellee is forty-seven years old. Appellee has been attending school in an attempt to increase her ability to earn more income. Given its findings, the trial court provided a sufficient basis to justify the amount of the spousal support award. See Bowen,132 Ohio App.3d at 628. Therefore, the amount of spousal support is not unreasonable, arbitrary, or unconscionable. This court notes that the division of assets reflected in the order is not equal, but an equitable division need not mean an equal division. Cherry v. Cherry (1981),66 Ohio St.2d 348, 355. Absent an abuse of discretion, this court is not free to substitute its judgment for that of the trier of fact. Id. Modifications of spousal support are reviewable under an abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142, 144. The magistrate set September 5, 2000 as the commencement date for spousal support. The trial court changed the commencement date to January 26, 2001. Appellant argues that since he paid all of the parties' expenses while they were living together during the pendency of the divorce, the new commencement date effectively extends the spousal support order by nearly six months. Appellant argues he should be given credit toward spousal support for paying the parties' expenses from September 5, 2000 to January 26, 2001. Appellee argues that since the parties continued to live together until January 2001, there was no need for spousal support until they separated. Appellee contends the decision of the magistrate to begin payments on September 5, 2000 was based upon the assumption that the parties would be separating on or about that time. Appellee further argues that the decision of the trial court to set the commencement date for January 26, 2001 was based upon when the actual separation occurred. Appellee testified that appellant had not been following the temporary order regarding payment of marital debts. Appellee testified appellant was not contributing funds for groceries, child support, or upkeep on the house and should therefore receive no credit toward spousal support. While appellant disputes appellee's testimony regarding his contributions, it was undisputed that appellant did not begin paying child support or spousal support on September 5, 2000. The change of date from September 5, 2000 to January 26, 2001 does not change the length of time appellant is required to pay spousal support. Spousal support will still be terminated "upon the death of appellee or appellant, or upon appellee's remarriage or cohabitation or four years," whichever occurs first. The contributions appellant is attempting to obtain as credit toward his spousal support obligations were already his responsibility under the temporary order regarding payment of marital debts. Instead of requiring appellant to pay the back spousal and child support, the trial court determined there was "no arrearage in spousal and child support as of January 22, 2001," and made the payments effective January 26, 2001. The change of the commencement date was not unreasonable, arbitrary, or unconscionable since appellant never began spousal support payments on September 5, 2000. Therefore, the second assignment of error is overruled. Assignment of Error No. 3: The trial court erred in ordering appellant to obtain life insurance to secure his spousal support obligations. A reviewing court may modify or reverse an award of spousal support only if it finds that the trial court abused its discretion. Kunkle v.Kunkle (1990), 51 Ohio St.3d 64, 67. The judgment entry and decree of divorce in this case provide that the obligation to pay spousal support "shall terminate upon death of appellee or appellant, * * *, whichever event occurs first." In Woodrome v. Woodrome (Mar. 26, 2001), Butler App. No. CA00-05-074, unreported, at 3, this court stated that for a spousal support order to continue after death, the order must "expressly provide" that spousal support shall continue beyond the obligor's death. Since appellant's spousal support obligation would terminate upon his death, the portion of the divorce decree ordering appellant to maintain life insurance to secure his spousal support obligation is inappropriate. Therefore, the third assignment of error is well-taken and that portion of the trial court's order requiring appellant to obtain life insurance to secure his spousal support obligation is vacated. Judgment affirmed as modified. YOUNG, P.J., and VALEN, J., concur. 1 R.C. 3105.18(C)(1) provides: In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support * * * the court shall consider all of the following factors: (a) The income of the parties[;] (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; (j) The contribution of each party to the education, training, or earning ability of the other party[;] (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each party, of an award of support; (m) The lost income production capacity of either party that resulted from that party's marital responsibilities; (n) Any other factor that the court expressly finds to be relevant and equitable.

2016-07-06 06:42:16.71914+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] Finding appellant's first assignment of error well-taken and second assignment of error moot, the judgment of the Bowling Green Municipal Court is reversed at appellee's costs. See Opinion and Judgment Entry by Resnick, M.L., J., on file. Glasser, Resnick and Knepper, JJ., concur. * * *

2016-07-06 06:42:16.490297+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a judgment of the Erie County Court of Common Pleas that found that appellant had violated the terms and conditions of his community control sanction and imposed a term of imprisonment. For the reasons that follow, this court affirms the judgment of the trial court. {¶ 2} Appellant sets forth the following assignment of error: {¶ 3} "Appellant's sentence should be reversed pursuant to ORC2953.08(G)(2) since the probation revocation and sentence were not supported by the record." {¶ 4} On March 7, 2002, appellant entered guilty pleas to two counts of forgery and one count of theft. The judgment entry contained in the record indicates that the trial court determined at that time that appellant was a candidate for community control sanctions. The trial court sentenced appellant to five years of community control for each conviction, with the sentences to be served concurrently. The trial court further informed appellant that prison terms of 11 months on each conviction could be imposed if he failed to comply with the terms of his community control, and that the prison terms would be ordered to be served consecutively. The trial court then set forth the conditions of appellant's community control. Appellant did not appeal this judgment. {¶ 5} The record further reflects that on August 8, 2002, appellant was brought before the trial court to show cause why his community control sanctions should not be revoked and sentence imposed. In a judgment entry filed August 9, 2002, the trial court found that appellant had violated the terms and conditions of his community sanctions by leaving the county without permission, failing to report to the Adult Probation Department, failing to secure employment, and failing to obtain counseling. The trial court revoked appellant's community sanctions and imposed the three prison sentences originally ordered to be served. It is from that judgment that appellant appeals. {¶ 6} Appellant first argues that the finding that he violated his community control was not supported by sufficient evidence. He describes some of the violations as "petty and insubstantial" and attempts to explain away the others. Appellant asserts that his failure to appear was not a willful violation because he was evicted from his apartment and had no choice but to go to another county to live with his parents. He further asserts that his failed drug screens were a result of drugs that were already in his system from before he was placed on probation. As to these two violations, appellant's probation officer testified that appellant was to appear once every two weeks but that despite his calls to appellant he never came in after the first appointment. The probation officer testified that he did not know where appellant was at that time although he later learned that appellant was arrested in another county and that appellant had not been granted permission to leave Erie County. He also testified that appellant tested positive for marijuana on March 7 and March 14, 2002, and that one of the conditions of his probation was that he not use narcotics. {¶ 7} As to the remainder of his violations, appellant attempts to minimize them by arguing that they were violations of the general conditions of probation for all probationers and states that there is no evidence he ever received a copy of those conditions. The record reflects that appellant's probation officer further testified that appellant was fined and sentenced to jail in Knox County for passing bad checks and that violating the law and failing to let his probation officer know about the new charges were also violations of his probation. The trial court also heard testimony that appellant had failed to provide any documentation of participation in a drug program or of employment. Further, appellant had failed to pay his court costs. As to appellant's claim that there was no evidence he received a copy of the conditions of his probation, the trial court noted at the revocation hearing that appellant was advised of those conditions at the time of the original hearing. The state commented that the probation officer had a signed copy of the conditions of probation, which the state showed to defense counsel. The trial court then told appellant it appeared he had been advised of the conditions and appellant stated, "All right." This argument is without merit. {¶ 8} Next, appellant argues that the three consecutive jail sentences imposed at the March 7, 2002 hearing were not supported by the record, and that the trial court failed to comply with the requirements of R.C. 2929. 14 for imposition of greater than minimum and consecutive sentences. We are unable to review this claimed error for two reasons. {¶ 9} First, appellant's sentences were imposed at the March 7, 2002 hearing and journalized March 8, 2002. Appellant did not timely appeal from that judgment and has not sought leave to file a delayed appeal {¶ 10} Second, this court does not have before it the transcript of the original sentencing hearing, which is required in order to consider whether the trial court fully complied with the requirements of R.C. 2929. 14. See State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165. {¶ 11} Based on the foregoing, this court finds that appellant's arguments are without merit and his sole assignment of error is not well-taken. {¶ 12} On consideration whereof, this court finds that appellant was not prejudiced and the judgment of the Erie County Court of Common Pleas is affirmed. Costs of this appeal are assessed to appellant. JUDGMENT AFFIRMED. Lanzinger and Singer, JJ., concur.

2016-07-06 06:42:16.56034+00

These cases arise from the construction of the Arthur G. James Cancer Research Institute ("the project") at Ohio State University ("OSU"), Columbus, Ohio. After several years of litigation, a settlement agreement ("the agreement") was reached and executed by all parties in August and September 1993. The agreement was filed with the Ohio Court of Claims on October 1, 1993, and a journal entry approving the agreement was filed on October 4, 1993. Enforcement of the settlement agreement is at issue in these appeals. Pursuant to the trial court's journal entry approving the agreement, OSU was ordered to pay $300,000 to S.I. Industries, Inc. ("S.I.") to settle S.I.'s contract/delay claims. OSU has released $284,243.86 to S.I. but has refused to pay to S.I. *Page 383 $15,756.14 on the ground that liens were filed against S.I. by a subcontractor on the project. Pursuant to R.C. Chapter 1311, OSU has placed the contested amount in an escrow account and has refused to pay those sums to S.I. until OSU receives either a release showing that S.I. has paid the liens or an agreement between S.I. and the lien claimant showing a release of the money or a court order requiring OSU to release the money to S.I. S.I. filed a motion asking the trial court to enforce the settlement agreement and order OSU to pay to S.I. the $15,756.14 being held in an escrow account. On October 6, 1994, the trial court put on an entry denying S.I.'s motion to enforce the settlement agreement until the court had proof that the liens had been satisfied or released. On October 26, 1994, S.I. filed a motion for reconsideration. By entry dated November 3, 1994, the trial court ordered a conference for November 9, 1994 to discuss S.I.'s motion for reconsideration. On November 4, 1994, S.I. filed a notice of appeal from the trial court's October 6, 1994 entry in case No. 94API11-1626. Thereafter, the trial court refused to rule on S.I.'s motion for reconsideration. On November 18, 1994, S.I. filed a motion for relief of judgment, pursuant to Civ.R. 60(B), asking the trial court to vacate its decision and entry dated October 6, 1994. The trial court likewise refused to rule on this motion. During the pendency of the appeal in case No. 94API11-1626, the parties met with this court's prehearing conference attorney. The parties decided to ask the trial court to exercise its continuing jurisdiction and rule on S.I.'s motions to enforce the settlement agreement and for relief from judgment. The trial court ordered a nonoral hearing for December 20, 1994 and, on December 21, 1994, the trial court put on an entry granting S.I.'s motion for reconsideration but denying S.I.'s motion for relief from judgment. S.I. filed a notice of appeal from the court's December 21, 1994 entry in case No. 95API01-78. S.I. asserts the following assignments of error for this court's consideration in case No. 94API11-1626: "Assignment of Error No. 1 "The trial court erred in denying third-party defendant-appellant's motion to enforce settlement agreement. "Assignment of Error No. 2 "The trial court erred in failing to conduct an evidentiary hearing regarding the motion to enforce settlement agreement." S.I. asserts the following assignment of error in case No. 95API01-78: *Page 384 "Assignment of Error No. 1 "The trial court abused its discretion in denying third-party defendant-appellant's motion for relief from judgment." S.I.'s three assigned errors center around one common issue and will be discussed together. The issue involved in this case is whether the trial court erred in refusing to take any action upon S.I.'s motion to enforce the settlement agreement. Upon a review of the record, this court concludes that a factual dispute exists concerning the terms of the settlement agreement and how those terms impact on the existence of the liens in question. The Ohio Supreme Court held in Mack v. PolsonRubber Co. (1984), 14 Ohio St.3d 34, 14 OBR 335, 470 N.E.2d 902, as follows: "In the absence of allegations of fraud, duress, undue influence, or of any factual dispute concerning the existence of the terms of a settlement agreement, a court is not bound to conduct an evidentiary hearing prior to signing a journal entry reflecting the settlement agreement." Id. at syllabus. In the present case, S.I. acknowledges that certain liens are in existence; however, S.I. argues that those liens were filed of record prior to the date that the settlement agreement was executed by the parties and that the parties were aware of these liens. Unfortunately, there is no evidence in the record showing when those liens were filed. OSU and the Ohio Department of Administrative Services did not make any statements in their briefs concerning when they became aware of the existence of these liens. However, pursuant to R.C. 1311.28, once OSU received notice of the existence of the liens, OSU was required to retain enough money to pay those liens from its payment to S.I. and was required to place those funds in an escrow account until such time as OSU was ordered to pay them by order of a court of competent jurisdiction or until such time as an agreement was reached between S.I. and the lien claimant concerning the payment of those funds. Clearly, a factual dispute exists concerning the responsibilities of the parties for the payment of those liens to the lien claimant who was not a party to the settlement agreement. This court is not in a position to make a determination as to whether the parties knew about these liens before they executed the settlement agreement and/or how the existence of these liens affects the payment of the amounts due S.I. from OSU in connection with OSU's corresponding duties under R.C. Chapter 1311 and OSU's duties under the settlement agreement. This factual issue must be determined by the trial court and, lacking an evidentiary hearing, neither the record nor the court's entry discloses whether the trial court had any evidence before it from which to reach its decision. As such, pursuant to Mack, supra, the existence of this factual dispute concerning the existence of the terms of the settlement agreement necessitated an evidentiary *Page 385 hearing in order for the trial court to determine the terms of the settlement agreement, the existence of these liens, and the intent of the parties concerning those liens. S.I.'s second assignment of error is well taken and is sustained. In the first assignment of error, S.I. argues that the trial court erred in denying its motion to enforce the settlement agreement. Because there is no evidence in the record from which this court could render a decision concerning whether OSU should be ordered to pay S.I. the $15,756.14, this assignment of error is overruled. Inasmuch as this court's determination of S.I.'s first and second assignments of error in case No. 94API11-1626 is dispositive of the issue raised in these appeals, S.I.'s sole assignment of error raised in case No. 95API01-78 is rendered moot and is overruled pursuant to App.R. 12(A). Based on the foregoing, in case No. 94API11-1626, S.I.'s first assignment of error is overruled and S.I.'s second assignment of error is sustained. In case No. 95API01-78, S.I.'s sole assignment of error is overruled. This matter is reversed and remanded to the Ohio Court of Claims for a hearing to determine how the existence of these liens impacts upon the responsibilities of the parties pursuant to the terms of the settlement agreement. Judgment reversed and cause remanded. PETREE and CLOSE, JJ., concur.

2016-07-06 06:42:15.587895+00

Hornbeck

This action was instituted in the court of common pleas by plaintiffs as taxpayers, for themselves and others similarly situated, seeking an injunction restraining defendants from proceeding to carry out a contract with Robert H. Evans Co. for the construction of certain buildings at the Institution for Feeble-Minded at Apple Creek, and praying that the contract be declared illegal, unconstitutional and void, and that, if found to be legal, defendant Griswold, director of the department of public welfare, be required to award a contract for the construction of the buildings according to law, and for other equitable relief. The issues were *Page 356 joined and the cause tried in the court of common pleas, and it comes into this court on appeal. There are two questions raised: First, was the enactment of that part of House Bill No. 203 relating to the appropriation for the Institution for Feeble-Minded at Apple Creek in violation of the State Constitution? Second, was there collusion between the successful bidder and Hal. H. Griswold in causing said award to be made to Robert H. Evans Co., or is the pretended award illegal and void and contrary to law because it undertakes to require by contract the erection of certain alternates known as G-7 and G-2-B. Section 22, Article II, of the State Constitution, provides: "No money shall be drawn from the treasury, except in pursuance of a specific appropriation, made by law; and no appropriation shall be made for a longer period than two years." Without extended discussion, suffice to say that we are of opinion that the appropriation under consideration as it appears in House Bill No. 203 is not in violation of the State Constitution, that it is a specific appropriation, and that the purpose is sufficiently defined. The power of the Legislature to reappropriate is as broad as it is to appropriate originally. The fact that the money set apart had, by the former Legislature, been itemized as to its distribution, was not compelling upon the General Assembly in the act of reappropriation. The history incident to this legislation establishes that the General Assembly acted with knowledge when it took from House Bill No. 203 the items theretofore appearing in the former appropriation. The form of appropriation under consideration has many times *Page 357 during a period covering a number of years been accepted as proper procedure, and, while this is not controlling, it is to be weighed in judicial determination. This court, in the case of Long v. Board of Trustees of OhioState University, 24 Ohio App. 261, 157 N.E. 395, had under consideration a somewhat analogous act, which was sustained. Coming now to the second question, we say without hesitation that there is nothing in this record which tends in the slightest degree to establish that Mr. Griswold and the declared successful bidder, Robert H. Evans Co., were in collusion in any manner whatever to improperly direct or control the award of the contract as made. But it is not necessary that plaintiffs, to succeed in this action, should do more than establish that the awarding of the contract to Robert H. Evans Co. under the specifications for the buildings at Apple Creek was illegal. The record is voluminous, and we are dealing in a highly specialized field. There are, however, some outstanding features of the situation with which bidders were confronted that seem to us not difficult of understanding. The specifications were prepared by an eminent architect, and in great detail, as they are required to be by law. They set forth what the successful contractor was expected to do in the way of construction of the improvement at Apple Creek. Bids were tendered and accepted upon the basis of these specifications. The method adopted in tabulating the bids to which objection is made relates to the floors and fills on the second floor of the cottages to be erected. *Page 358 The specifications provide for base, alternate G-2-B, and alternate G-7 bids. It is apparent that the floors provided for in the base bid, alternate G-2-B, and alternate G-7, were both complete floors. Had the base bid been accepted and the work completed, there would have been a concrete slab of two inches to which there would have been added a cement fill of three inches, smoothly finished. Had alternate G-2-B been accepted, the depth from the top of the floor to the bottom of the concrete slab would have been substantially the same as in the base; the variance in the two types of construction being that, instead of cement fill and finish, there would have been a terrazzo finish and fill, and this only differed in the half-inch composition at the surface. Had alternate G-7 been accepted, the completed floor would have consisted only of the concrete slab with an integral finish, which required a smoothing up with trowel after a certain top dressing of sand and a base of cement around the walls. In all instances the floor would have been at the same elevation. It is interesting to note that the specifications definitely provided that, in the event of the acceptance of alternate G-7, the contractor would be required to raise the concrete slab three inches to bring it up to the level required for the floor. It is evident that, as the base bids, alternate G-7, and alternate G-2-B, each contemplated completed floors, to let a contract requiring the bidder to observe the exact requirements of the specifications in constructing alternate G-7, and thereafter to superimpose alternate G-2-B floor, and fill thereon, could it be done, would be thoroughly impractical and a useless performance. *Page 359 It is difficult to understand how a contractor could estimate that he could construct two floors more cheaply than one; that he could complete alternate G-7, requiring top dressing of sand thereon, smooth it up with trowel, i.e., make the integral finish, then cover that completed floor with terrazzo fill and finish, more cheaply than he could construct the G-2-B alone; but that is the result of the tabulation of the bids as made. It is obvious that alternate G-2-B alone would be less expensive, and the fact that the combined bid was less than alternate G-2-B lends some credence to the claim that it was not expected to build G-7. If a bidder knew that alternate G-7 modified would be accepted in combination with alternate G-2-B, then the concrete slab in alternate G-7 could be left unfinished as in the base, all of the base of cement around the walls required in alternate G-7 could be utilized for alternate G-2-B, and a marked saving could be expected. This plan was feasible, but it was not proposed, and the bidders knew nothing of it. The bidders had every reason to assume that, if alternate G-2-B was accepted, it would not be in conjunction with G-7. The state clearly had the right, if alternate G-2-B was desired, to tabulate the bids upon the cost of that construction, in connection with the base bid, because the specifications so stated, but to permit also the cost of alternate G-2-B to be determined by the base bid plus alternate G-2-B, less alternate G-7, enabled the architect to employ two separate and distinct methods of deciding the low bid. The insurmountable situation with which defendants are confronted is that no bidder relying on information imparted by the specifications, as he had a *Page 360 right to do, could determine that, in order to secure G-2-B construction, the state would first require G-7 construction. The specifications disclose no purpose to do any such thing. The discretion of the director of public works can only be exercised with respect to such matters as could in reason be anticipated as included in the specifications. It is incumbent upon the state in taking bids to apprise prospective contractors of that which they might reasonably be expected to do. They were informed that, if alternate G-7 construction was adopted, it would be necessary to raise the concrete slab three inches. How can it be said that bidders should have known that the state would accept a bid for G-7 construction, and that in so doing, after requiring the slab to be finished and raised, expected it to be unfinished and lowered three inches to comply with the elevation required in the base bid and in alternate G-2-B? It is obvious that, notwithstanding it is claimed that it is purely an engineering problem, G-7 and G-2-B cannot both be completely constructed. As one witness aptly puts it: "You can accept it but you cannot build it." No bidder was put on notice that in order to secure alternate G-2-B construction the state would observe the process of going through alternate G-7 construction to secure it. We are therefore unanimously of the opinion that the contract as proposed to be awarded was illegal and that it should be set aside. The prayer of the petition will therefore be granted. Injunction allowed. KUNKLE, P.J., and ALLREAD, J., concur. *Page 361

2016-07-06 06:42:16.633987+00

OPINION {¶ 1} Raymond Joseph Bruce pled no contest in the Montgomery County Court of Common Pleas to one count of aggravated vehicular homicide and two counts of operating a vehicle while under the influence ("OVI") after the court denied his motion to suppress evidence. He appeals from his conviction. *Page 2 {¶ 2} The state set forth the following summary of the facts at the plea hearing. On November 2, 2005, Bruce was involved in a motorcycle accident while under the influence of alcohol, as a result of which his passenger, Jennifer Barnett, was killed. Bruce had been convicted of two or more offenses of driving under the influence in the six years prior to this offense. His blood-alcohol level at the time of the accident was greater than .08 percent but less than .17 percent. Bruce was charged with one count of aggravated vehicular homicide and two counts of OVI with two or more previous violations within six years. {¶ 3} Bruce filed a motion to suppress the blood evidence that was collected from him at Miami Valley Hospital shortly after the accident. He claimed that his blood was taken in violation of the statutory rules and administrative regulations governing such procedures. The trial court conducted a hearing on March 1, 2007, at which the state presented evidence regarding its compliance with all of the procedural requirements. The trial court concluded that the procedural requirements had been satisfied. Bruce subsequently filed a motion to dismiss one count of OVI in which he also challenged the procedures employed by the state. The motion to dismiss was also denied. {¶ 4} Bruce pled no contest to all of the charges. He was sentenced to three years of imprisonment on the aggravated vehicular homicide and to thirty day terms on each count of OVI, all to be served concurrently. His vehicle was also forfeited and his driver's license was suspended for life. {¶ 5} Bruce raises two assignments of error on appeal. {¶ 6} "I. THE BLOOD TESTS RESULTS SHOULD HAVE BEEN SUPPRESSED, AS PROPER PROCEDURE HAD NOT BEEN FOLLOWED." *Page 3 {¶ 7} Bruce contends that the state failed to establish the qualifications of the person who withdrew his blood and the chain of custody of the blood evidence, including its refrigeration. He also contends that the state violated applicable regulations by failing to prevent the destruction of the blood sample and thereby depriving him of his right to an independent test. {¶ 8} A defendant is required to apprise the state of the specific bases for a motion to suppress evidence so that the prosecutor can adequately prepare his case. Xenia v. Wallace (1988), 37 Ohio St.3d 216,218, 524 N.E.2d 889. When results of blood-alcohol tests are challenged in an aggravated vehicular homicide prosecution that depends upon proof of driving under the influence in violation of R.C. 4511.19(A), the state must show substantial compliance with R.C. 4511.19(D)(1) and Ohio Adm. Code Chapter 3701-53 before the test results are admissible.State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 48. {¶ 9} As a preliminary matter, we note that Bruce's motion to suppress asserted, very generally, that the test was "not completed in accordance with the statutes and regulations" governing such procedures. It did not challenge any specific procedure except to question whether the blood had been withdrawn within two hours of the alleged offense. At the suppression hearing, the state presented evidence of substantial compliance with the regulations, and the motion to suppress was overruled. Later, in his motion to dismiss one of the counts of OVI, Bruce advanced a more specific argument that chain of custody and refrigeration of the sample had not been established. In response to this motion, which raised these objections specifically for the first time, the state presented additional evidence as to these issues. The trial court credited the state's evidence and overruled the motion to dismiss. Thus, the trial court *Page 4 heard evidence on two separate occasions regarding the state's compliance with statutes and regulations in its handling of the blood evidence. We will consider the evidence from both of these hearings in addressing Bruce's argument on appeal about the state's compliance with the necessary procedures. {¶ 10} Bruce challenges the state's compliance with the necessary procedures in three respects. {¶ 11} First, Bruce contends that the state's evidence did not establish that Elizabeth Alley, who withdrew Bruce's blood at Miami Valley Hospital, was qualified to do so. {¶ 12} R.C. 4511.19(D)(1)(b) provides that only a "physician, a registered nurse, or a qualified technician, chemist, or phlebotomist shall withdraw a blood sample" for the purpose of determining the alcohol or drug content. No evidence was presented that Alley was a physician, nurse, or chemist. Thus, we must determine whether the court reasonably concluded that she was a "trained phlebotomist." Because Ohio does not certify phlebotomists, the question whether she was a phlebotomist is akin to whether she was a qualified technician. {¶ 13} Alley testified that, in November 2005, she worked at Miami Valley Hospital while employed by CompuNet Clinical Laboratories. She had three years of nursing background and had been trained on how to draw blood. In fact, she testified that drawing blood for medical and forensic purposes had been her primary responsibility in eight years of employment. On the evening in question, Alley drew blood from Bruce immediately upon his arrival at the hospital for medical purposes, pursuant to hospital protocol. Shortly thereafter, Bruce was sent for a CAT scan, and a deputy arrived at the hospital requesting a second blood draw. Alley complied with the deputy's request, using a standardized kit to collect the evidence *Page 5 and then giving the kit to the deputy. Alley testified that she had drawn blood for criminal prosecutions many times in the past and that she had complied with Department of Health regulations. {¶ 14} The state's evidence clearly established that Alley had expertise in the collection of blood samples. As such, the trial court properly concluded that she was a phlebotomist or qualified technician authorized to withdraw a blood sample pursuant to R.C. 4511.19(D)(1)(b). {¶ 15} Second, Bruce asserts that the state failed to establish the blood sample's chain of custody. {¶ 16} Molly Haas, a deputy sheriff and evidence technician, was assigned to collect a blood sample from Bruce at MVH. She testified that, after she obtained the sample from Alley, she immediately took it to the Montgomery County property room and placed it in a refrigerator that displayed a temperature of 39°. The sample was placed in the refrigerator at 12:09 a.m. on November 3, 2005, less than two hours after the accident. Sergeant Richard Whalen took the blood sample from the property room to the crime lab on November 7. The sample was received by an intake clerk, who placed it in the "outer property room refrigerator." From there, it was transferred to the inner property room refrigerator and to the toxicology refrigerator before the testing was completed. All of the refrigerators were reported to have been in working order, and the appropriate seals and notations were present on the specimen. No evidence was offered to show that the sample was unrefrigerated any longer than was necessary to transport it. Based on this evidence, the trial court reasonably concluded that the state established the chain of custody and the refrigeration of the specimen. {¶ 17} Third, Bruce contends that his due process rights were violated because the state *Page 6 did not retain the blood specimen so that he could conduct an independent analysis. The trial court concluded that the state had not had the burden of notifying the crime lab of the court's order to preserve the blood sample, that there was no evidence that the sample was exculpatory, and that there was no evidence of bad faith on the part of the state. {¶ 18} Ohio Adm. Code 3701-53-05 requires that a blood specimen be retained for one year. Bruce's blood was drawn on November 2, 2005. On August 11, 2006, at Bruce's request, the trial court issued an order that instructed the Miami Valley Regional Crime Lab to preserve the blood sample taken from Bruce on the night of the accident so that an independent analysis could be conducted by Bruce's expert, Larry Dehus. This order had been prepared by Bruce's attorney, who served it upon the prosecutor and informed Dehus of the order, but the crime lab was not notified. Dehus did not contact the crime lab to retrieve the sample until January 3, 2007. By that time, the sample had been destroyed because it was more than one year old. {¶ 19} We agree with the trial court's conclusion that the state did not act in bad faith with regard to the destruction of the blood evidence. Indeed, it appears that Bruce and his expert bear the responsibility for not notifying the lab of Bruce's desire to test the sample within a reasonable time. Thus, Bruce's due process rights were not violated. {¶ 20} The trial court did not err in overruling the motion to suppress. {¶ 21} The first assignment of error is overruled. {¶ 22} "II. APPELLANT ASSERTS INEFFECTIVE ASSISTANCE OF COUNSEL" {¶ 23} Bruce contends that trial counsel was ineffective because, after initially raising a question about Bruce's competence, counsel stipulated to the findings of Dr. Susan Perry Dyer, who found that he was competent to stand trial. Bruce believes that his attorney should have *Page 7 requested a second opinion. {¶ 24} Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance.Strickland v. Washington (1984), 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel's conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id. {¶ 25} A defendant is presumed to be competent to stand trial. To be found incompetent to stand trial, a preponderance of the evidence must show that the defendant is incapable of understanding the nature and objective of the proceedings against him or of assisting in his defense. R.C. 2945.37(G). {¶ 26} Dr. Susan Perry Dyer's report is not in the record. However, she has been recognized many times as a qualified expert, and Bruce has not presented any evidence that trial counsel acted unreasonably in accepting her conclusion that Bruce was competent to stand trial. {¶ 27} Defense counsel did hire a clinical neuropsychologist, William R. Arnold, to review Dr. Dyer's report. Dr. Arnold's report indicated that Bruce suffered from cognitive impairment as a result of the accident which might present some challenges in court, but it did not suggest that Bruce would be incapable of understanding the court proceedings or assisting in his defense. Specifically, Dr. Arnold stated that Bruce showed "a mild decline in his cognitive functioning, particularly for tasks which require perceptual problem solving or perceptual information processing skills." Dr. Arnold *Page 8 also noted that Bruce did not remember the events associated with the motorcycle accident, which would be a detriment to his participation in his defense. Defense counsel used this report to argue for leniency in sentencing. {¶ 28} In our view, counsel's representation did not fall below an objective standard of reasonableness by accepting Dr. Dyer's opinion that Bruce was competent to stand trial and, instead, in using evidence of his impairment to argue for leniency. It is apparent that Dr. Arnold's opinions were not based on the legal standard for competency, and there is no basis to conclude that he would have found Bruce to be incompetent if he had used the stringent standard set forth in R.C. 2945.37(G). Counsel could have reasonably concluded that using the evidence of impairment to seek leniency in sentencing would be a more realistic and effective tactic. {¶ 29} Bruce also contends that his attorney should have requested a second medical opinion regarding his competency. Because we have no basis to conclude that a second opinion would have been different from Dr. Dyer's, we cannot conclude that such a request would have helpful to Bruce or would have affected the outcome of the case. {¶ 30} The second assignment of error is overruled. {¶ 31} The judgment of the trial court will be affirmed. BROGAN, J. and DONOVAN, J., concur. Kirsten A. Brandt William T. Daly Hon. Gregory F. Singer *Page 1

2016-07-06 06:42:16.69692+00

DECISION Appellant, Delmar V. Coleman, and his brother, Jerry, were both employed by appellee, APCOA, Inc., as shuttle bus drivers at Columbus International Airport. On May 12, 1997, Jerry assaulted appellant as he was finishing his shift. As a result of his injuries sustained in the assault, appellant applied for workers' compensation, which appellee, Industrial Commission of Ohio, disallowed. After the commission refused his appeal, appellant filed a notice of appeal and complaint in the Franklin County Court of Common Pleas pursuant to R.C. 4123.512. Appellees, APCOA, the Administrator of the Bureau of Workers' Compensation, and the Industrial Commission, filed a joint motion for summary judgment. The trial court granted appellees' summary judgment motion and denied appellant coverage on the basis that his injuries were not received in the course of and arising out of his employment. Appellant appeals the decision of the trial court and asserts the following assignment of error: The Trial Court Erred In Both Denying Appellant's Motion For Summary Judgment And In Granting Appellees' Motion For Summary Judgment, Where The Undisputed Evidence Demonstrated Appellant Sustained Injuries When A Coworker Physically Attacked Him. Appellant's Injuries Occurred "In The Course of, And Arising Out Of," His Employment According To R.C. 4123.01(C). Appellate review of a trial court's decision on a motion for summary judgment is de novo. Koos v. Cent. Ohio Cellular,Inc. (1994), 94 Ohio App.3d 579, 588. To prevail on a summary judgment motion, the movant has the burden of demonstrating that no genuine issue of material fact remains to be litigated, that it is entitled to judgment as a matter of law, and that it appears from the evidence, when viewed most strongly in favor of the non-moving party, that reasonable minds can come to but one conclusion and that conclusion is adverse to the non-moving party. Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317,327. "An injury sustained by an employee is compensable under the Workers' Compensation Act only if it was `received in the course of, and arising out of, the injured employee's employment.' R.C. 4123.01(C); R.C. 4123.54; Fassig v. State, ex rel. Turner (1917), 95 Ohio St. 232." Bralley v. Daugherty (1980), 61 Ohio St.2d 302,303. "In the course of and arising out of" are conjunctive requirements that must both be met before an injury is compensable. Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277. In accordance with R.C. 4123.95, this phrase is to be liberally construed in favor of the employee. Fisher, at 278. The Ohio Supreme Court has construed "in the course of" as relating to the time, place and circumstances of the injury. Fisher, at 277. An injury is received "in the course of employment," "if it is sustained by an employee while that employee engages in activity that is consistent with the contract for hire and logically related to the employer's business." Ruckman v. Cubby Drilling,Inc. (1998), 81 Ohio St.3d 117, 120. In turn, the Supreme Court of Ohio interprets "arising out of" as referring to a causal connection between the employment and the injury. Fisher, at 277. When determining whether a causal connection exists between an employee's injury and his employment, such that the injury arises from the employment, a totality of the circumstances test is used. Fisher, at 277. Because workers' compensation cases tend to be fact-specific, no one test or analysis could be applied to all cases; consequently, courts have developed sets of rules for similar fact patterns.Fisher, at 280. When deciding cases involving assaults and fights during work hours at the place of employment, Ohio courts have consistently focused on two factors: (1) whether the origin of the incident was work-related, and (2) whether the claimant was the instigator. Courts have found an injury compensable when the origin was found to be work-related and the claimant did not instigate the assault. See Indus. Comm. v. Pora (1919), 100 Ohio St. 218;Delassandro v. Indus. Comm. (1924), 110 Ohio St. 506. In turn, when both findings have not been made, courts have found no compensable injury. See Williams v. Indus. Comm. (1939), 63 Ohio App. 66;Davis v. Indus. Comm. (1957), 76 Ohio Law Abs. 474;Harvey v. Mayfield (Aug. 20, 1990), Richland App. No. CA-2743, unreported. Appellant's deposition is the only evidence in the record addressing the assault. At his deposition, appellant testified that Jerry assaulted him twice in the month of May at work. Appellant testified that the first assault occurred around May 1, 1997. Appellant testified that, as he clocked out, a supervisor, Clyde England, called him by an old family nickname. Appellant saw Jerry sitting nearby and laughing, and concluded that Jerry had told England the nickname. Appellant made a derogatory comment about Jerry and went to his car. As appellant was pulling out, Jerry came up and punched him in the mouth and face. Appellant testified that, shortly before this incident, his brother had threatened him over the phone after appellant defended his wife, who Jerry had accused of getting involved in a dispute between Jerry and his wife. Appellant testified that he went to work the next day and showed his supervisor his injuries. His supervisor then sent him to see the airport manager, who said that Jerry would be fired as soon as he came to work. When appellant returned to work a few days later, he was told that, because Jerry had denied the incident, nothing could be done other than to guarantee that he and Jerry would have no contact on the job. Appellant testified that the next contact he had with Jerry, both at work and outside of work, was on May 12, 1997, when he was again assaulted. Appellant testified that, on May 12th, he had just finished working his nine-to-five shift and was parking his bus and preparing to clock out. As appellant was parking his bus, Jerry, who was working a 12 noon to 8 p.m. shift, came out of the office, jumped on appellant's bus and threatened him. Appellant had a can of mace with him and put his hand toward the pocket where the mace was; Jerry suspected that he had a gun, jumped off appellant's bus and went into the office building to tell England that appellant had a gun. In the meantime, appellant parked his bus and walked toward the office to clock out before going home. As he approached the office, he saw England at the door holding back Jerry, who was yelling and screaming at appellant. England told appellant to go home and that he would clock out for him; England let Jerry go so that he could call the police. As appellant was walking to his car, Jerry hit him in the back of the head with an unopened soda pop can, appellant then took out his mace and sprayed Jerry in the face and went to his car. Jerry caught appellant at his car and assaulted him. Appellant eventually got Jerry off of him when he again sprayed him with mace, at which time the police arrived. Initially when asked why Jerry assaulted him, appellant replied: "Because I stood up to him. I told him my wife did not have anything to do with what was going on between him and his wife. And as far as I know, that's all." (Depo. 32.) However, later in the deposition, appellant stated that, during the May 12th attack, Jerry accused him of trying to get him fired from his job by reporting the first assault. (Depo. 42-43, 50-51.) Based on appellant's deposition testimony, the trial court found that the May 12th attack was based in part on the ongoing domestic dispute between appellant and his brother and, consequently, concluded as a matter of law that appellant's injuries were not sustained in the course of his employment. This court is unaware of an Ohio case addressing the issue of whether injuries from an assault fueled by both personal and work-related quarrels can be compensable injuries. Keeping in mind the liberal construction rule and the underlying intent that there be a causal connection between an employee's injury and employment, the fact that a personal quarrel, in addition to a work-related quarrel, contributed to a situation that culminates in an assault and injury should not automatically prevent the injury from being compensable. Rather, an injury that results from an animosity fueled by both personal and work-related quarrels should be compensable when the work-related quarrel exacerbated the situation and, thus, establishes a causal connection between the injury and the employment. This position is consistent with 1 Larson, Law of Workmen's Compensation (1990) Section 8.02(1)(a). Appellant contends that Jerry instigated the assault and was motivated entirely or partly by the fact that appellant had reported the first assault and, therefore, his injuries from the second assault on May 12th were sustained "in the course of" and "arising out of" his employment. Appellees contend that the May 12th assault was the result of a purely domestic or personal dispute between appellant and his brother, and that no work-related problems substantially exacerbated the situation between appellant and his brother such that it could have attributed to the May 12th assault. Contrary to appellees' position, this court finds that there is a genuine issue of material fact as to the extent that appellant's act of reporting the first assault in May to superiors contributed to the May 12th assault. Despite the potentially continuing and simmering animosity between appellant and his brother stemming from their personal dispute, a reasonable trier of fact could conclude that appellant's reporting Jerry's first assault exacerbated the situation and, thus, had a causal connection to the May 12th assault. If this finding were made, appellant's injuries would be compensable. Appellant's deposition supports, but does not mandate, a finding that his report of the first assault contributed to the May 12th assault. Therefore, a genuine issue of material fact exists as to whether appellant received his injuries "in the course of" and "arising out of" his employment, and the trial court erred in granting summary judgment to appellees. Likewise, the trial court did not err when it denied appellant's motion for summary judgment. For the foregoing reasons, appellant's assignment of error is sustained in part and overruled in part. The judgment of the trial court is reversed and remanded for proceedings consistent with this decision. Judgment reversed and cause remanded. BROWN and KENNEDY, JJ., concur.

2016-07-06 06:42:16.781882+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} Defendant-Appellant William B. O'Neal appeals from his convictions and sentences in the Medina County Court of Common Pleas. This Court affirms. I {¶ 2} On October 13, 2004, O'Neal was involved in the shooting of Tina Harrell at Christie's Cabaret. Harrell survived the shooting, and O'Neal was indicted on: (1) two counts of attempted murder; (2) three counts of kidnapping; (3) one count of felonious assault; (4) one count of carrying a concealed weapon; *Page 2 (5) one count of illegal possession of a firearm in a liquor permit premises; and (6) eight firearm specifications. O'Neal initially pled not guilty to all of the charges. {¶ 3} On May 17, 2005, O'Neal withdrew his not guilty plea and pled guilty to the following charges: (1) two counts of kidnapping pursuant to R.C. 2905.01(A)(2); (2) one count of kidnapping pursuant to R.C.2905.01(A)(3); (3) one count of felonious assault pursuant to R.C.2903.11(A)(1); (4) one count of felonious assault pursuant to R.C.2903.11(A)(2); (5) one count of carrying a concealed weapon pursuant to R.C. 2923.12(A)(2); and (6) one count of illegal possession of a firearm in a liquor permit premises pursuant to R.C. 2923.121(A). All of the charges except for the carrying a concealed weapon charge also contained firearm specifications to which O'Neal pled guilty. The trial court sentenced O'Neal while the Ohio sentencing guidelines were still in effect, but this Court reversed O'Neal's sentence and remanded his case for resentencing after the Ohio Supreme Court's decision in State v.Foster, 109 Ohio St.3d 1, 2006-Ohio-856. See State v. O'Neal, 9th Dist. No. 05CA0076-M, 2006-Ohio-1904. {¶ 4} Upon remand, O'Neal made two oral motions to withdraw his guilty plea. He also made an oral motion for the judge to recuse himself. The trial court denied O'Neal's motions and sentenced him to the same amount of time that he received in his original sentence, a total of thirteen years in prison. O'Neal appealed from his resentencing, but this Court dismissed his appeal for lack of a final appealable order. See State v.O'Neal, 9th Dist. No. 06CA0056-M, *Page 3 2007-Ohio-2266. Subsequently, the trial court issued a nunc pro tunc journal entry and O'Neal filed another notice of appeal. O'Neal's appeal is now properly before this Court. He raises four assignments of error for our review. II Assignment of Error Number One "IN RE-SENTENCING THE DEFENDANT TO THE SENTENCE ORIGINALLY IMPOSED THE COURT VIOLATED THE DEFENDANT'S DUE PROCESS RIGHTS BY RETROACTIVELY APPLYING THE FOSTER DECISION IN THE INSTANT CASE." {¶ 5} In his first assignment of error, O'Neal argues that the trial court's retroactive application of Foster prejudiced his due process rights. However, O'Neal's counsel conceded this assignment of error at oral argument, noting that this Court already has held thatFoster's retroactive application is constitutional. See State v.Hildreth, 9th Dist. No. 06CA008879, 2006-Ohio-5058, at ¶ 10, citingState v. Newman, 9th Dist. No. 23038, 2006-Ohio-4082. We once again note that we are bound by Foster and trust that the Ohio Supreme Court "would not direct us to violate the Constitution." Newman at ¶ 11, citingU.S. v. Wade (C.A. 8, 2006), 435 F.3d 829, 832. O'Neal's first assignment of error is overruled. Assignment of Error Number Two "THE COURT ERRED WHEN ON TWO SEPARATE OCCASIONS IT DENIED THE DEFENDANTS (sic) MOTION TO WITHDRAW HIS PLEA." *Page 4 {¶ 6} In his second assignment of error, O'Neal argues that the trial court erred in denying his oral motions to withdraw his guilty plea. Specifically, O'Neal argues that the trial court abused its discretion when it denied his motions without holding a hearing at which he might present the reasonable and legitimate basis for the withdrawal of his plea. {¶ 7} The record reflects that the trial court held two resentencing hearings in this matter; one on May 8, 2006 and one on June 9, 2006. The trial court held the second hearing to clarify the sentence that it imposed upon O'Neal on May 8, 2006. At both hearings, O'Neal informed the trial court that he wished to withdraw his guilty plea. O'Neal's post-remand plea challenge constituted the first instance that he attempted to withdraw his plea. He never filed a post-sentence Crim.R. 32.1 motion in the trial court prior to appealing. Nor did he challenge his plea in a separate assignment of error on his first direct appeal. Rather, O'Neal waited to challenge his plea upon remand after this Court vacated his initial sentence and remanded to the trial court specifically for resentencing. He now directly appeals from the trial court's denial of his motion to withdraw. {¶ 8} In the past, this Court has taken inconsistent approaches when confronted with the issue that O'Neal's appeal presents. We have reviewed the case law in this area and have found that the Ohio Supreme Court has never directly addressed the issue of whether a defendant may file a motion to withdraw for the first time upon a remand to the trial court for resentencing. Accordingly, *Page 5 we now review our previous approaches to this issue and clarify the law that applies. {¶ 9} In State v. Newman ("Newman II"), 9th Dist. No. 21970,2004-Ohio-5180, we applied a pre-sentence standard to the trial court's denial of Newman's post-remand motion to withdraw his plea. Newman initially appealed to this Court solely on the basis of his sentence. See State v. Newman ("Newman I "), 9th Dist. No. 20981, 2002-Ohio-4250. Although we affirmed Newman's sentence, the Ohio Supreme Court reversed that sentence on the basis of State v. Comer, 99 Ohio St.3d 463,2003-Ohio-4165, and remanded the matter to the trial court for resentencing. See State v. Newman (2003), 100 Ohio St.3d 24. Upon remand, Newman filed a motion to withdraw his plea, which the trial court denied. Newman appealed the trial court's ruling, arguing that a pre-sentence standard should govern his motion. We fully analyzed Newman's argument on appeal, noting that such pre-sentence plea withdrawals should be "freely and liberally granted" and reviewing the trial court's order for an abuse of discretion. See *Page 6 Newman II at ¶ 5-14. While our approach in Newman II was consistent with the approach taken by several other districts,1 we employed a different approach the next time the issue presented itself. {¶ 10} In State v. Roper ("Roper II"), 9th Dist. No. 22988,2006-Ohio-3661, we determined that the trial court lacked jurisdiction to consider Roper's post-remand motion to withdraw his plea. After considering Roper's direct appeal, we vacated his sentence and remanded the matter to the trial court for the sole purpose of resentencing. SeeState v. Roper ("Roper I "), 9th Dist. No. 22102, 2005-Ohio-13. On remand, however, Roper filed a motion to withdraw his plea. The trial court held a hearing on Roper's motion and eventually denied it. Roper then appealed that denial to this Court. In Roper II, we explained that the scope of our mandate limited the jurisdiction of the trial court upon remand because we remanded Roper's case solely for the purpose of resentencing. Roper II at ¶ 10-12. Consequently, the trial court lacked jurisdiction to consider Roper's motion because taking that action would have been inconsistent with our mandate. Id. *Page 7 {¶ 11} Based on our review of the law in this area, we find RoperII's logic superior to Newman II's logic. While the Ohio Supreme Court has not addressed this exact issue, it has consistently held that a trial court has no authority to extend or vary the mandate of the appellate court. See Nolan v. Nolan (1984), 11 Ohio St.3d 1, 4;Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, at ¶ 1; Briggs v.Pennsylvania RR. Co. (1948), 334 U.S. 304, 306. See, also, State ex rel.Special Prosecutors v. Judges, Court of Common Pleas (1978),55 Ohio St.2d 94. Accordingly, when this Court remands a matter for resentencing, the trial court may not entertain a motion to withdraw a plea. Any consideration of such a motion would be inconsistent with this Court's jurisdiction and our order that the trial court resentence the defendant. Indeed, if a trial court were to grant a defendant's post-remand motion to withdraw his plea, the trial court's order would essentially undo the entire appeal. We do not believe that the law supports such a result. See Nolan, 11 Ohio St.3d at 3, 11 (discussing the law of the case doctrine). See, also, Hopkins at ¶ 15 ("The [law of the case] doctrine is necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution."). {¶ 12} Furthermore, we believe that Roper II's holding favors judicial economy while Newman II's holding detracts from it. By freely allowing a defendant to challenge his plea upon remand, a court risks encouraging all *Page 8 defendants whose cases are remanded to do the same. The trial judge would have already sentenced the defendant once, thereby vesting him with the knowledge of the court's sentencing tendencies. Such a defendant would be sorely tempted to risk his fate with a jury rather than follow through with a resentencing that might result in the exact same sentence. In other words, if given the option to file a post-remand motion to withdraw a plea, many defendants might file such a motion even though they never considered doing so before or immediately after their initial sentence pursuant to Crim.R. 32.1. We find this perverted result to be entirely inconsistent with the relief that Crim.R. 32.1 was intended to afford. See State v. Iafornaro, 9th Dist. No. 01CA007967, 2002-Ohio-5550, at ¶ 10, citing State v. Caraballo (1985),17 Ohio St.3d 66, 67 (explaining that a stricter standard of review applies to post-sentence motions to withdraw pleas so as to discourage defendants from testing the severity of their sentences). {¶ 13} In sum, we believe that Roper II dictates the result in this appeal. To the extent that our past precedents, including NewmanII, conflict with this result, those cases are overruled. Once we remanded O'Neal's case for the purpose of resentencing, the trial court was obligated to follow our mandate. The trial court lacked jurisdiction to consider O'Neal's motion to withdraw his plea and therefore erred in ruling on the motion. See Roper II at ¶ 10-11. Since the trial court eventually denied the motion and resentenced O'Neal, however, the error was harmless. Id. at ¶ 12. O'Neal's second assignment of error lacks merit. *Page 9 Assignment of Error Number Three "THE COURT ERRED WHEN IT DENIED, ON TWO SEPARATE OCCASIONS THE DEFENDANT'S MOTIONS OF RECUSAL." {¶ 14} In his third assignment of error, O'Neal argues that the trial judge was obligated to recuse himself Specifically, O'Neal claims that the judge formed an opinion about O'Neal's resentencing and demonstrated "that he was inclined to treat [O'Neal] in a severe manner[.]" {¶ 15} Apart from the fact that O'Neal has not cited to a scintilla of evidence in the record that demonstrates the trial court's alleged bias towards him, this Court is without authority to rule on this alleged error. A party may not simply ask a trial judge to voluntarily recuse himself and then raise the issue on appeal when the trial judge refuses. As our sister court has noted: "Where the trial court refuses to recuse itself * * * appellant must follow the disqualification procedure in the Supreme Court. He cannot forgo this procedure and appeal the issue to the court of appeals in order to avoid Supreme Court jurisdiction over the issue." State v. Drummond, 7th Dist. No. 05MA197, 2006-Ohio-7078, at ¶ 106. The procedure for seeking disqualification of a judge is set forth in R.C. 2701.03. See State v. Ramos (1993), 88 Ohio App.3d 394, 398. Matters of disqualification of trial judges lie within the exclusive jurisdiction of the chief justice of the Supreme Court of Ohio and his designees. Kondrat v. Ralph Ingersoll Publishing Co. (1989),56 Ohio App.3d 173, 174. This Court is without authority to review a *Page 10 matter involving the disqualification of a judge. Id., citing Beer v.Griffith (1978), 54 Ohio St.2d 440, 441-42. {¶ 16} O'Neal did not follow the disqualification procedures set forth in R.C. 2701.03. We cannot remedy his failure by considering the matter because we are without authority to do so. O'Neal's third assignment of error is overruled. Assignment of Error Number Four "[T]HE COURT ERRED WHEN IT RELIED UPON THE INCOMPLETE, INACCURATE AND ERRONEOUS INFORMATION IN THE PSI REPORT AS PART OF ITS CONSIDERATION IN IMPOSING ITS SENTENCE." {¶ 17} In his fourth assignment of error, O'Neal argues that the trial court erred in relying on his pre-sentence investigation ("PSI") report. O'Neal claims that the report contained "inaccurate and misleading information," which "impacted on the length and severity of [his] sentence." We disagree. {¶ 18} Post-Foster, this Court reviews felony sentences under an abuse of discretion standard. State v. Windham, 9th Dist. No. 05CA0033,2006-Ohio-1544, at ¶ 12. An abuse of discretion is more than an error in judgment or law; it implies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable. Blakemore v.Blakemore (1983), 5 Ohio St.3d 217, 219. Furthermore, when applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. *Page 11 {¶ 19} O'Neal argues that the PSI report erroneously indicated that he was not a first time offender when in fact he was. However, the record reflects that during sentencing the trial court stated the following: "Mr. O'Neal, when the Court ordered this sentence, it believed it was consistent with the gut shooting of the victim in the matter and not with any previous convictions you may or may not have had. The Court isn't considering those at all. What happened that day in that bar, the danger to all of the folks that were there, yourself, the victim, the police officers, citizens, bystanders, the extremely frightening nature of that day, this Court believes requires a thirteen-year sentence, and that's the reason I'm doing it." Thus, the trial court specifically noted that it sentenced O'Neal based on the egregiousness and seriousness of his conduct rather than any information in the PSI report. There is no evidence in the record to suggest that the trial court relied on the PSI report in sentencing O'Neal. Accordingly, O'Neal's argument that the trial court abused its discretion in relying on the PSI report is meritless. O'Neal's fourth assignment of error is overruled. III {¶ 20} O'Neal's four assignments of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. *Page 12 We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. CARR, P. J., MOORE, J., CONCUR. 1 Other districts also have used a pre-sentence standard in such cases. See State v. Ziefle, 11th Dist. No. 2007-A-0019, 2007-Ohio-5621, at ¶ 8 (explaining that "when an appellate court reverses and vacates a sentence, * * * the original sentence is rendered void [and] the trial court must resentence the defendant `as if there had been no original sentence.'"), quoting State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, at ¶ 16; State v. Sage, 2d. Dist. No. 22078, 2007-Ohio-6353, at ¶ 16-17 (finding it error, albeit harmless, to employ a post-sentence standard after a Foster remand); State v. Harper, 10th Dist. No. 06AP-733,2007-Ohio-2590, at ¶ 15-18 (applying pre-sentence standard on appeal after Foster remand). *Page 1

2016-07-06 06:42:16.880006+00

JOURNAL ENTRY AND OPINION {¶ 1} In this consolidated appeal, defendant-appellant Katia Abboud appeals (Case No. 80325) from the judgment entered pursuant to a jury verdict finding her guilty of kidnapping and coercion and the State appeals (Case No. 80318) from the judgment of the trial court granting Abboud's motion for reconsideration and dismissing the gun specification. Abboud was indicted along with her husband, co-defendant Michel Abboud. For the reasons that follow, Case No. 80318 is affirmed and Case No. 80325 is reversed and remanded for a new trial. {¶ 2} The facts relevant to this appeal have been set out in the companion case of State v. Abboud (Aug. 29, 2002), Cuyahoga App. No. 80251, and need not be repeated herein. In that case, we dealt with an assignment of error challenging, as to Michel Abboud, the jury instruction that he and his wife were accomplices and that their testimony should be viewed with great caution and grave suspicion. We found this assignment to be dispositive and reversed and remanded the case for a new trial. Much of the reasoning set forth therein is applicable to the instant defendant and, to such extent, we adopt the reasoning therein as though fully set forth herein. {¶ 3} Accordingly, we find that the accomplice instruction violated Abboud's right to testify in her own behalf because it unfairly singled her out and allowed the jury to judge her credibility in a different manner and weight than they would judge the credibility of other witnesses. Id. Our disposition moots any consideration of the remaining assignments of error. See App.R. 12(A)(1)(c). {¶ 4} Judgment reversed and remanded in Case No. 80325. THE STATE'S APPEAL (Case No. 80318) {¶ 5} "I. The trial court abused its discretion in granting appellant's motion for reconsideration." {¶ 6} On June 16, 2000, Abboud was found guilty by a jury of coercion and kidnaping with a gun specification. On June 30, 2000, Abboud filed a motion for judgment of acquittal or, in the alternative, a motion for a new trial requesting a dismissal of the gun specification since there was no evidence presented that a firearm was used for the offenses for which Abboud was indicted and tried. On July 25, 2001, the trial court denied this motion. {¶ 7} On August 31, 2001, the trial court reconsidered its prior ruling and dismissed the gun specification. It is from this decision that the State appeals arguing that the trial court's order granting the motion for reconsideration is a nullity.1 We disagree. {¶ 8} While motions for reconsideration are not expressly or impliedly allowed in the trial court after a final judgment, interlocutory orders are subject to motions for reconsideration. Pittsv. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 378, 379. The denial of a motion for judgment of acquittal prior to final sentencing is an interlocutory order. Accordingly, the trial court was permitted to "revisit" the order that denied Abboud's motion for acquittal. {¶ 9} Because the order denying the motion for acquittal was not a final judgment, we find no merit in the State's assertion that Abboud's motion for reconsideration was a nullity. {¶ 10} The State's sole assignment of error is overruled. {¶ 11} Case No. 80318 is affirmed; Case No. 80325 is reversed and remanded for a new trial. {¶ 12} [Case No. 80318] It is ordered that appellee recover of appellant her costs herein taxed. [Case No. 80325] It is ordered that appellant recover of appellee her costs herein taxed. The Court finds there were reasonable grounds for these appeals. 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. MICHAEL J. CORRIGAN, P.J., and TERRENCE O'DONNELL, J., CONCUR. 1 The State is not arguing the merits of Abboud's motion to reconsider.

2016-07-06 06:42:16.913161+00

JOURNAL ENTRY and OPINION {¶ 1} Defendant-appellant, Kurtis Fields, appeals the finding of guilt and sentence rendered in the common pleas court. Appellant also seeks correction of the trial court's journal entry of conviction. For the reasons that follow, we affirm the finding of guilt and vacate his sentence. We also direct the trial court to correct its journal entry of conviction relative to the merger of counts one and two. {¶ 2} Appellant was indicted by the Cuyahoga County Grand Jury on four counts of felonious assault and one count of having a weapon while under disability. The victim of counts one and two, felonious assault, was Linda Brown. Count one charged appellant with serious physical harm to Brown and count two charged appellant with physical harm to Brown by means of a deadly weapon. The victim of count three, felonious assault, was Lynetta Jackson. Count three charged appellant with attempting to cause physical harm to Jackson. Count four charged appellant with attempting to cause physical harm to Nicole (last name unknown). The four felonious assault charges all contained one- and three-year firearm specifications. {¶ 3} Prior to trial, the State and defense stipulated that appellant had been convicted of a prior felony for the purpose of count five, having a weapon while under disability. Thus, the jury was to determine only whether appellant had a firearm. {¶ 4} At trial, Brown explained what occurred. Brown testified that she, Jackson (her cousin) and Nicole were traveling to a friend's house on the date in question. Jackson was the driver, Brown was the front seat passenger and Nicole was the rear right seat passenger. As the car approached the intersection of East 88th Street and Superior Avenue, a small, red car "cut off" their car, causing Jackson to immediately stop the vehicle. The small, red car continued traveling into a nearby parking lot. {¶ 5} Jackson drove her car in front of the parking lot where the small, red car had pulled in. Jackson then told Brown to open the front passenger door. While still seated in the car, Jackson confronted the driver of the red car, who was out of his car at that time. The driver was angry and responded with profane language. Brown testified that she could clearly see the assailant's face, which was illuminated by the lights in the parking lot. Brown recognized the front seat passenger in the assailant's car as Lashawn Graham. {¶ 6} Brown explained that the driver of the red car then returned to his car and released the latch for the hood of his car. The driver then walked around to the hood of the car, grabbed an object from the engine area and started shooting in the direction of the three woman, who were all still seated in their car. {¶ 7} Brown believed that the assailant's gun was chrome and black and probably a .45 caliber. Brown described the bullets as "flying everywhere." Brown further testified that appellant continued firing his gun as the women drove off. After Jackson pulled off, Brown realized that she had been shot in the buttocks. {¶ 8} Brown testified that all three persons in their car observed that the red car appeared to be following them. As they were driving, the three women saw an ambulance. Jackson drove her car in the direction of the ambulance and the driver of the red car went in the opposite direction. Jackson stopped her car at the ambulance so that Brown could seek medical attention. Brown was transported by the ambulance to the hospital for treatment. {¶ 9} The police officers who responded on the evening of the shooting found one bullet hole in the rear passenger door of the vehicle. The police determined that the bullet traveled through the rear passenger door to where Brown had been sitting in the front passenger seat. The police also interviewed Brown at the hospital. Brown did not know her assailant's name, but described him to the police as "a light brown male with a black hat," with either braids or a do-rag hanging out of the hat. Brown explained that her assailant's face was "familiar," but that she "had to take time to think where [she knew] the face from." Based on Brown's description, the initial police report described the assailant as "medium-complected, braids, 20." During her initial interview with the police, Brown did not mention that she recognized Graham as the front seat passenger in the assailant's car. {¶ 10} After her interview with the police, and while still in the hospital, Brown learned from her cousins that her assailant's name was "Kurtis," and it was at that time she was able to put the name to the face. Brown remembered that "Kurtis" and Graham are brothers and that she had seen the two of them together on previous occasions. Brown shared this information during her first interview with the investigating detective, Amy Duke. Detective Duke showed Brown a photo line-up, in which neither appellant nor Graham were featured. Brown did not identify any of the suspects from that first line-up as being her assailant. {¶ 11} During her second interview with Detective Duke, however, Brown identified appellant, who she still knew at that time only by his first name, from a photo line-up. Brown also identified Graham from another photo line-up. Brown testified that she was "100 percent sure" that appellant was the individual who shot her. {¶ 12} Finally, Brown testified that approximately one month after the incident, Anthony Lockhart, appellant's friend, approached her and attempted to bribe her not to testify. {¶ 13} At the conclusion of the State's case-in-chief, the defense made a Crim.R. 29 motion for acquittal, which the trial court overruled. The defense then called Lockhart who testified that he had been elsewhere with Graham at the time of the incident. Lockhart denied attempting to bribe Brown. At the conclusion of Lockhart's testimony, the defense renewed its Crim.R. 29 motion for acquittal. The court denied the motion as to counts one and two (felonious assault on Brown) and count five (having a weapon while under disability) and reserved its rulings as to counts three and four (felonious assault relative to Jackson and Nicole, respectively). After the jury returned a guilty verdict as to all the counts and specifications, the court denied the defense's Crim.R. 29 motion for acquittal as to counts three and four. {¶ 14} In his first assignment of error, appellant contends that the evidence was insufficient to sustain a conviction as to counts three and four. We disagree. {¶ 15} Crim.R. 29(A) governs motions for acquittal and provides for a judgment of acquittal if the evidence is insufficient to sustain a conviction. Pursuant to Crim.R. 29, a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. A Crim.R. 29(A) motion for acquittal "should be granted only where reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987),33 Ohio St.3d 19, 23, 514 N.E.2d 394; State v. Jordan, Cuyahoga App. Nos. 79469 and 79470, 2002-Ohio-590. {¶ 16} The standard for a Crim.R 29 motion is virtually identical to that employed in testing the sufficiency of the evidence. State v. Turner, Franklin App. No. 04AP-364,2004-Ohio-6609, citing State v. Thompkins, 78 Ohio St.3d 380,386, 1997-Ohio-52, 678 N.E.2d 541. 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. Thompkins, supra. {¶ 17} In this assignment of error, appellant challenges the two felonious assault convictions relative to Jackson and Nicole. Specifically, appellant contends that there was "no evidence that Nicole, who was in the back seat, was even visible to [appellant] as he stood outside the vehicle[,]" and that "there was no evidence that [appellant] intended to hit anyone other than Brown." Appellant goes on to argue that "[o]nly one shot entered the vehicle, and it caused Brown's injuries. As for Brown's testimony about there having been other shots fired, this is evidence of menacing but is not, without more, evidence that [appellant] intended to hit Jackson." We are not persuaded by appellant's arguments. {¶ 18} R.C. 2903.11, governing the two counts of felonious assault relative to Jackson and Nicole, provides in pertinent part that "[n]o person shall knowingly * * * cause or attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance." {¶ 19} Brown testified that appellant was angry because Jackson had confronted him about cutting her off. Appellant shot in the direction of the three women, who were all still seated in their car, while Brown had her door opened. A reasonable inference could thus be made that appellant, angry at Jackson, intended to cause her physical harm. {¶ 20} The one bullet hole that was discovered in the car was found at the rear passenger door; Nicole had been sitting in the rear passenger seat. A reasonable inference could therefore also be made that appellant intended to cause physical harm to the person in the rear passenger seat, in this case, Nicole. {¶ 21} Moreover, Brown described the bullets as "flying everywhere," and how appellant continued firing his gun even as the women drove off. {¶ 22} Based upon the aforementioned, the State presented sufficient evidence to support the felonious assault convictions relative to Jackson and Nicole, and appellant's first assignment of error is overruled. {¶ 23} In his second assignment of error, appellant challenges his conviction as being against the manifest weight of the evidence. We disagree. {¶ 24} A challenge to the weight of the evidence attacks the credibility of the evidence presented. Thompkins, supra, at 387. When evaluating a claim that a conviction was contrary to the manifest weight of the evidence, we must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the 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. Id.; State v. Martin (1983), 20 Ohio App.3d 172, 175,485 N.E.2d 717. The discretionary power to reverse should be invoked only in exceptional cases "where the evidence weighs heavily against the conviction." Martin, supra. {¶ 25} Appellant bases his manifest weight challenge on Brown's identification of him, arguing that her testimony in that regard was "incredible." In particular, appellant cites the fact that in Brown's description to the police she never identified him as having facial hair, while appellant had facial hair in the photo line-up from which Brown identified him. Appellant also notes that Brown never described the distinct curvature of appellant's teeth (i.e., an overbite) to the police, despite her testimony that she had known about this characteristic for years. {¶ 26} Appellant next notes that Brown did not tell the police that she recognized the passenger, Graham, in appellant's car. Appellant also argues that the police report indicates that Brown described appellant as having braids, while at trial Brown testified that appellant may have been wearing a do-rag and denied that she told the police he had braids. Finally, appellant argues that "Brown vacillated between light and medium about the shooter's skin tone." {¶ 27} Convictions based on eyewitness identification will be set aside only if the identification procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. UnitedStates (1968), 390 U.S. 377, 384, 88 S.Ct. 967; State v. Jells (1990), 53 Ohio St.3d 22, 27, 559 N.E.2d 464. Even if an identification procedure is suggestive, the identification testimony may be admissible if the identification was reliable.Manson v. Brathwaite (1977), 432 U.S. 98, 114, 97 S.Ct. 2243;Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375; Jells, supra. To determine whether an identification was reliable, the court considers the totality of the circumstances, particularly the following five factors: {¶ 28} "* * * the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Biggers, supra, at 199. See, also, Manson and Jells, supra. {¶ 29} Here, reviewing the totality of the circumstances, we do not find Brown's identification of appellant "incredible." Brown testified that she was able to clearly see appellant's face, as it was illuminated by lights in the parking lot. The face was "familiar" to Brown, but she "had to take time to think where [she knew] the face from." Upon learning from her cousins that her assailant's name was "Kurtis," Brown was able to put the name to the face. In fact, she testified that she was "100 percent sure" that appellant was the individual who shot her. {¶ 30} Based upon the aforementioned, appellant's conviction was not against the manifest weight of the evidence and, thus, his second assignment of error is overruled. {¶ 31} In his third assignment of error, appellant argues that the trial court erred when it sentenced him to more than the minimum sentence in violation of Blakely v. Washington (2004),542 U.S. 296, 124 S.Ct. 2531. {¶ 32} Until recently, R.C. 2929.14(B) governed more than the minium sentences, and required that "if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless one or more of the following applies: {¶ 33} "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term. {¶ 34} "(2) 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." {¶ 35} While this case was pending on appeal, the Supreme Court of Ohio, in State v. Foster, 109 Ohio St.3d 1,2006-Ohio-856, 845 N.E.2d 470, relying on Apprendi v. NewJersey (2000), 530 U.S. 466, 120 S.Ct. 2348, and Blakely, supra, held that R.C. 2929.14(B), as well as other provisions in the Revised Code, is unconstitutional because it violates a defendant's Sixth Amendment right to a jury trial. {¶ 36} Pursuant to United States v. Booker (2005),543 U.S. 220, 125 S.Ct. 738, the Supreme Court of Ohio's remedy was to sever the unconstitutional provisions of the Revised Code, including R.C. 2929.14(B). After severance, judicial factfinding is not required before imposing a sentence that is more than the minimum. Foster, supra, at paragraph two of the syllabus. {¶ 37} Here, in sentencing appellant to more than minimum, the court made findings pursuant to R.C. 2929.14(B). Thus, in accordance with Foster,/appellant's sentence must be vacated and the case remanded for resentencing. For that reason, appellant's third assignment of error is sustained. {¶ 38} In his fourth and final assignment of error, appellant contends that the journal entry of conviction is incorrect. Specifically, appellant seeks to have the entry amended to reflect the merger of counts one and two, and that the conviction on the having a weapon while under disability was a fifth, rather than a third, degree felony. {¶ 39} In regard to the merger of counts one and two, although there may not be any requirement that the entry state the merger of the counts for the purpose of sentencing, we can see no reason why, upon appellant's request for same, it not be done, especially since the matter is being remanded for resentencing. {¶ 40} In regard to the degree of felony for the having a weapon while under disability count, appellant's counsel conceded at oral argument that the charge is a third degree felony.1 {¶ 41} Thus, appellant's fourth assignment of error is granted in part and denied in part. Finding of guilt affirmed; sentence vacated; case remanded for resentencing and correction of journal entry of conviction. This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, ordered that appellant recover from appellee costs herein. It is ordered that a special mandate be sent to said 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. Cooney, P.J., and Gallagher, J., concur. 1 R.C. 2923.13, governing weapons while under disability, was amended, effective April 8, 2004, to change the crime from a fifth degree felony to a third degree felony. This offense occurred on October 26, 2004 and, thus, was a third degree felony.

2016-10-07 23:47:02.992884+00

http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2014/05-02-14/PDF/0445.pdf

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 445 KA 12-01875 PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER SHYTRECE BANKS, DEFENDANT-APPELLANT. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered September 4, 2012. The judgment convicted defendant, upon her plea of guilty, of grand larceny in the third degree and criminal possession of a controlled substance in the third degree. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of grand larceny in the third degree (Penal Law § 155.35) and criminal possession of a controlled substance in the third degree (§ 220.16 [12]). We agree with defendant that the waiver of the right to appeal does not encompass her challenge to the severity of the sentence inasmuch as “ ‘no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal’ with respect to [her] conviction that [she] was also waiving [her] right to appeal any issue concerning the severity of the sentence” (People v Peterson, 111 AD3d 1412, 1412; see People v Maracle, 19 NY3d 925, 928). We nevertheless conclude that the sentence is not unduly harsh or severe. Entered: May 2, 2014 Frances E. Cafarell Clerk of the Court

2016-07-06 06:42:17.884005+00

I respectfully dissent. Simply stated, the primary issue for consideration, as couched in the first assignment of error, is whether the medical opinions of Nancy Smith's treating physicians — Dr. Thomas Chelimsky, an autonomic nervous system expert, Dr. John Wilber, an orthopedic surgeon, Dr. Bashar Katririj, an neurologist, Dr. Angela Smith, a pediatric orthopedic specialist, and Dr. Jeff Janata, a psychologist — which opinions are contained within her University Hospital medical chart, may be read into evidence by her treating neurologist, Dr. David M. Riley. There are several reasons why I believe the majority in permitting this practice has incorrectly ruled upon this assignment of error. R.C. 2317.40 states in part: * * * A record of an act, condition, or event, in so far as relevant, is competent evidence if the custodian or the person who made such record or under whose supervision such record was made testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition, or event, and if, in the opinion of the court the sources of information, method, and time of preparation were such as to justify its admission. In my view, Riley is neither the custodian of the records nor the person who made such records. Accordingly, those opinions do not constitute competent evidence under this statute. Further, although the majority goes to great lengths to urge that Ohio Evidence Rule 803(6) means what it does not say, the rule specifies in relevant part: A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness * * *, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. (Emphasis added). In addition, the majority in its first footnote simply rejects the sound analysis of Bush v. Burchett (June 13, 1995), Athens App. No. 94CA2237, unreported, where the court found that when Dr. Wise read from a letter written by Dr. Quenemoen expressing a medical opinion, the testimony constituted impermissible diagnosis and opinion outside any recognized exception to the hearsay evidence rule. See also Carter v. Cleveland (May 8, 1997), Cuyahoga App. No. 70674, unreported, where our court pointed out that Ohio's Evidence Rule 803(6) does not provide an exception to the hearsay rule for out-of-court medical opinion or diagnoses. Finally, even the staff note to Evid.R. 803(6) specifies that the rule differs from Federal Evid.R. 803(6) in that the phrase opinions or diagnoses has been deleted from the Ohio rule. For the majority in this case to now re-introduce into Ohio Evid.R. 803(6) language which does not appear in the rule and to determine, contrary to reported case authority that the rule means what it does not say is in may view error. The correct rule of law to be applied in this circumstance in accordance with the foregoing case authority is that Ohio Evid.R. 803(6) does not permit opinions and diagnoses found in business records to be admitted into evidence. Accordingly, I dissent. I would reverse the judgment and remand the matter for a new trial.

2016-07-06 06:42:17.890171+00

Regarding assignment of error one, I concur in judgment only. I concur completely with the remainder of the majority opinion.

2016-07-06 06:42:17.875147+00

JOURNAL ENTRY AND OPINION This is an appeal from a jury verdict following a trial before Judge Shirley Strickland Saffold. Appellant Dillard Department Stores, Inc., (Dillard) a self-insured employer, appealed to the common pleas court from an order of the Industrial Commission allowing appellee Nancy Smith to claim right leg dystonia as part of her 1992 work-related ankle injury. It claims that the judge erred by allowing Smith's medical expert to testify about medical opinions contained within her hospital records. Additionally, it asserts error in denying its motion for summary judgment which challenged the expert's reliability requirement under Evid.R. 702(C) and because the expert could not relate the ankle injury and the dystonia within a reasonable degree of medical certainty. We disagree and affirm the judgment. On February 14, 1992, Dillard hired Smith for the position of manager of the Chanel cosmetics counter in its Westgate Mall store in Rocky River, Ohio. On June 3, 1992, while returning from her dinner break, Smith caught her leg on the corner of a key rack and fell. The following day, she visited the emergency room of a local hospital where a cast was placed on her right leg and, thereafter, the ankle and leg condition worsened. In an order dated September 9, 1992, the Industrial Commission recognized her claim for sprain right ankle, tendinitis, and reflex sympathetic dystrophy (RSD). This condition required Smith to undergo surgery on her ankle, and eventually she developed a progressive deformity and dysfunction of her lower leg, known as dystonia. Due to this condition, Smith has an unusual gait and is unable to walk on the heel of her foot. Any attempt to force her heel to the ground causes her leg to rotate at the hip and her right kneecap to face her left leg. She also cannot simultaneously straighten both of her legs. Smith's physicians opined that the dystonia developed as a direct result of her original ankle injury and, on September 9, 1996, she filed a motion with the Commission seeking an additional allowance for dystonia. A hearing officer denied the application on October 29, 1996 and, after appeal, a staff hearing officer granted the additional allowance on November 22, 1996. Dillard sought further review, but on January 6, 1997 the Commission refused to hear the appeal. On March 13, 1997, pursuant to R.C. 4123.512, Dillard then filed its notice of appeal with the court of common pleas. Smith filed her complaint on April 8, 1997 but dismissed the action pursuant to Civ.R. 41(A) on April 15, 1998. She re-filed her complaint on May 29, 1998 and the action proceeded to trial. The testimony of Dr. David M. Riley, a University Hospital neurologist who treated Smith, was presented through video tape deposition. He stated that he first saw Smith on July 10, 1996 upon referral from Dr. Thomas Chelimsky, an autonomic nervous system expert, and Dr. Bashar Katirji, both who thought she might suffer from dystonia. In an internal letter from Dr. Chelimsky to Dr. John Wilber, an orthopaedic surgeon, dated May 5, 1995, Dr. Chelimsky indicated that treatment had been unsuccessful, that the cause of Smith's problem was unknown, and that he felt Smith should see Dr. Riley to clarify the issue. Reading from a November 30, 1995 letter by Dr. Angela Smith, a specialist in pediatric orthopaedics, to Dr. Wilber (as copied to Dr. Chelimsky), Dr. Riley described Smith's dystonic gait : She walks with her heel approximately two inches off the floor with her entire right lower extremity turned inward markedly and hikes her right hip. She also throws her trunk over to the right side in stance phase apparently for balance. When she attempts to put her heel down onto the ground actively her right hip rotates immediately to its full extent. The hip protrudes laterally markedly making her overall coronal plane alignment even worse and her shoulders rotate in a compensatory manner. Dr. Riley also gave a similar description of Smith's gait, indicating that [t]here is no point at which she can assume a normal posture with the leg, even when she is standing still. When she walks, she has a choice of keeping her hip straight or keeping her foot straight * * *. If she compensates in one way, he continued, she pays the price in another way * * *. Dr. Riley explained that dystonia is an abnormal, painful movement caused by sustained contractions of muscles which usually results in abnormal postures. Theoretically, dystonia can affect any part of the body and can be limited in scope or involve the whole musculature of the body. He explained that there are many causes of dystonia and, in some instances, a definite cause cannot be found. There are two broad categories of dystonia: (1) the inherited types; and (2) the acquired types, or secondary dystonia brought on by diseases of the nervous system. As documented in medical literature and case studies, secondary dystonia may be caused in literally over a hundred different ways, including trauma. Additionally, it can be classified as organic, resulting from a disease of the brain, and psychogenic, resulting from psychological factors. While Dr. Riley admitted that, because of the complexity of the brain, the experts don't know exactly how to explain peripheral trauma causing dystonia, * * * [the same is] true of dystonia of any cause or, for that matter, all kinds of nervous system diseases. As an example he explained that, even though neurologists could not explain why certain neurological symptoms develop as a result of a stroke, they can assume that the symptoms that develop following the stroke are related to the stroke. With dystonia, there is no objective measurement that can document whether a person has it. Riley agreed the condition is more commonly associated with central nervous system injury rather than peripheral nervous system injury and that idiopathic dystonia, one of unknown origin, is also more common than peripheral dystonia. In Smith's case, Riley described the trauma to her foot as significant because, shortly after the injury she developed an abnormal posturing of that leg when she walked, and she never regained normal function of her foot. Dr. Wilber had performed a peroneal tendon surgery in November 1992, but Riley indicated that the dystonia continued to develop thereafter. He concluded that Smith exhibited symptoms indicating organic dystonia induced by trauma rather than psychogenic dystonia but agreed that if Smith's dystonia were psychogenic in origin rather than traumatic, it could not be related to her employment at Dillard's. According to Dr. Riley, Dr. Chelimsky referred Smith to him but also to Dr. Jeff Janata, a psychologist, for a psychological evaluation. Dr. Riley stated that, in Janata's report to Chelimsky, Janata concluded that Smith did not have a psychological state that would predispose her to psychogenic dystonia. Because Dr. Chelimsky had previously diagnosed and the Bureau of Workers' Compensation had recognized that Smith also suffered from RSD, Dr. Riley explained that a large number of people with RSD also suffered from dystonia: The two can co-exist and indeed seem to occur more frequently than would be expected by pure chance. Dr. Riley treated Smith with botulinum toxin, a chemical that paralyzes the muscle, abolishes involuntary muscle spasms, and helps reduce the pain associated with those spasms for a three-to four-month period. After her second treatment, Smith told him that she was able to sleep for the first time in five years. While the injections helped relieve the pain, however, it did not improve her leg posture. Dr. Riley admitted that he had not reviewed Smith's chart immediately before his deposition was taken nor had he brought it with him, but he pointed out that Smith's other doctors had also suspected or diagnosed her with dystonia. He discussed a May 2, 1996 report from Dr. Katirji that raised the possibility that Smith suffered from secondary dystonia and suggested that a consultation with Dr. Riley, who's a movement disorder specialist, might shed some light on Smith's condition. In addition, Riley quoted from Dr. Wilber's November 19, 1996 general letter: `It was both Dr. Katirji's and Dr. Riley's assessment that Nancy Smith has dystonia of her lower extremity and they both feel this is directly related to her original traumatic injury of [6/3/92]. I feel there is a clear consensus by multiple experts in both [P]ediatric [O]rthopedic [S]urgery and [N]eurology that Nancy Smith has dystonia which is directly caused by her work related injury of [6/3/92.]' Finally, Riley read Dr. Wilber's January 27, 1998 notation in Smith's chart which indicated that he strongly agreed with Riley's diagnosis. Dillard's expert, Dr. John Conomy, concluded that Smith's dystonia could have been caused by peripheral trauma but did not believe that it was probable. Six of the eight jurors returned a verdict in favor of Smith, finding that she could participate in the workers' compensation fund for dystonia, and that judgment was journalized. Dillard's first assignment of error states: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN PERMITTING HEARSAY AND DOUBLE HEARSAY EVIDENCE CONCERNING MEDICAL OPINIONS OFFERED TO PROVE THE ULTIMATE ISSUE AT TRIAL. Dillard's contends that much of Dr. Riley's testimony was hearsay and double hearsay opinion statements of Smith's other physicians contained with her University Hospitals chart. While it acknowledges that R.C.2317.40 and Evid.R. 803(6) allow the use of medical charts as evidence after qualification as a business record, it contends that opinions contained within the chart are not admissible. Smith counters, arguing that testimony regarding out-of-court medical opinions and diagnoses is admissible under Evid.R. 803(6). Contrary to Dillard's assertion, and recent conclusions of other courts of this state,1 Evid.R. 803(6) does not preclude the admissibility of opinions or diagnoses contained in medical records or reports as long as they satisfy the foundational and authentication requirements of Evid.R. 803(6)2 and do not violate other evidentiary rules (e.g., R.C.2317.02(B); Evid.R. 402 and Evid.R. 702).3 Before the adoption of Evid.R. 803(6) in 1980, Ohio courts looked to and applied the business records hearsay exception codified in The Uniform Business Records as Evidence Act, as adopted by this state in 1939, Gen. Code, § 12102-22 et seq. Currently found at R.C. 2317.40, it provides, in pertinent part, as follows: As used in this section "business" includes every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not. A record of an act, condition, or event, in so far as relevant, is competent evidence if the custodian or the person who made such record or under whose supervision such record was made testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court, the sources of information, method, and time of preparation were such as to justify its admission. [Emphasis added.] In 1947, while discussing the statute as it applies to medical records, the Supreme Court noted in Weis v. Weis, 147 Ohio St. 416, 425,72 N.E.2d 245, that the purpose of the statute was to liberalize and broaden the shop-book rule, recognized at common law as an exception to the general rule excluding hearsay evidence, and to permit the admissions of records regularly kept in the course of business and incident thereto * * *. The Supreme Court explained the basis for this exception to the hearsay rule: The exception to the hearsay rule of evidence in such cases is based on the assumption that the records, made in the regular course of business by those who have a competent knowledge of the facts recorded and a self-interest to be served through the accuracy of the entries made and kept with knowledge that they will be relied upon in a systematic conduct of such business, are accurate and trustworthy. In other words, such records are accepted as accurate and trustworthy, until inaccuracy is shown, upon faith in the routine by which and in the purpose for which they are made. Globe Indemnity Co. v. Reinhart, [152 Md., 439, 446, 447, 137 A., 43]. Of course, if it should appear that such records have been made and kept solely for a self-serving purpose of the party offering them in evidence, it would be the duty of a trial court to refuse to admit them. Hoffman v. Palmer, 2 Cir., 129 F.2d 976; Needle v. New York Railways Corporation, 227 A.D. 276, 278, 279, 237 N.Y.S. 547, 549; Conner v. Seattle, Renton So. Ry. Co., 56 Wash. 310, 105 p. 634, 25 L.R.A., N.S., 930, 134 Am. St. Rep. 1110. Weis, 147 Ohio St. at 425-426. [A]s applied to hospital records, [the statute also] * * * avoid[s] the necessity and thereby the expense, inconvenience and sometimes the impossibility of calling as witnesses the attendants, nurses and physicians who have collaborated to make the hospital record of a new patient. Id. at 425. [T]hose portions of hospital records made in the regular course of business and pertaining to the business of hospitalization and recording observable acts, transactions, occurrences or events incident to the treatment of a patient are admissible, in the absence of privilege, as evidence of the facts therein recorded, insofar as such records are helpful to an understanding of the medical or surgical aspects of the case, and insofar as relevant to the issues involved, provided such records have been prepared, identified and authenticated in the manner specified in the statute itself. [Weis, 147 Ohio St. at 424.] The Supreme Court further explained that a hospital or physician's office record may properly include the patient's case history; a diagnosis by one qualified to make it; and the condition and treatment of the patient covering such items as temperature, pulse, respiration, symptoms, food and medicines given, analysis of the tissues or fluids of the body[,] and the behavior of and complaints made by the patient. Id. at 425. In 1974, the Tenth District Court of Appeals addressed the act in the context of the admissibility of a medical report in letter form, from a physician to whom the attending physician had referred his patient for an unrelated malady, that was found in the attending physician's records. In Hytha v. Schwendeman (1974), 40 Ohio App. 2d 478, 320 N.E.2d 312, that court held that a medical diagnosis, made by a qualified physician and contained in an otherwise duly authenticated record, is admissible if that statement falls within the general principle of the law of evidence, where such a diagnosis would be admissible if testified to in open court by the person who made the record. 40 Ohio App.2d at 483. Citing its opinion in Dillon v. Young (1965), 3 Ohio App. 2d 110, 113,209 N.E.2d 623, 625, reversed upon other grounds in 6 Ohio St. 2d 221,217 N.E.2d 868, it noted that [a]s to the inclusion of expert opinion generally, within a business record, * * * `we think it clear that a record of an opinion by a qualified expert as to a matter upon which opinion evidence is proper is also admissible.' Hytha,40 Ohio App.2d at 482-483.4 It further explained, however, that [i]t is over simplistic to state that a diagnostic finding can, or cannot be admissible as a part of the business records of a hospital, or of a physician. Id. at 483. [W]e feel that the overriding consideration is that such diagnosis must be contained either in the records of a hospital, in which records the diagnosis is a systematic entry made in the regular course of the business of the hospital, or the diagnosis must have been entered within the records of the physician making such diagnosis and the diagnosis must be shown to have been entered, and the record kept, within the regular course of the business of the physician. [Id.] The court concluded that the letter from the second physician, which contained diagnostic findings and opinions about the patient's psychological condition, was not a record of the receiving doctor within the purview of R.C. 2317.40.5 [S]uch a record, in order to constitute a business record and be admissible to prove the truth of the matter asserted, must be that of the physician making the diagnosis and be shown to have been made in the regular course of the business of such doctor. Id. at 486. The court further explained that, even where a hospital record or physician's office record is properly qualified and found to be generally relevant to the issues, this does not necessarily render all parts of the record admissible. Id. at 487. The court noted that the letter was not made in the regular course of business of the attending physician and that, even if it had been otherwise qualified, portions of the letter contained statements that were not based upon observable data and, as such, were not admissible. Id. at 486-487. In the syllabus of the Hytha opinion, the court provided the following guide to determine admissibility under R.C. 2317.40: Before the record of a medical diagnosis made by a physician may be admitted into evidence, pursuant to R.C. 2317.40 (Records, as evidence), the following factors must be present: (1) The record must have been a systematic entry kept in the records of the hospital or physician and made in the regular course of business; (2) The diagnosis must have been the result of well-known and accepted objective testing and examining practices and procedures which are not of such a technical nature as to require cross-examination; (3) The diagnosis must not have rested solely upon the subjective complaints of the patient; (4) The diagnosis must have been made by a qualified person; (5) The evidence sought to be introduced must be competent and relevant; (6) If the use of the record is for the purpose of proving the truth of matter asserted at trial, it must be the product of the party seeking its admission; (7) It must be properly authenticated.6 The adoption of the Uniform Business Records as Evidence Act, R.C.2317.40, followed the adoption in 1936 of the similarly worded Commonwealth Fund Act, ch. 640, § 1, 49 Stat. 1561 (1936) (codified as amended at 28 U.S.C. § 1732).7 The intent of the Commonwealth Fund Act and attendant common-law rules next found their expression in Fed.R.Evid. 803(6). In 1980, after the 1975 adoption of the Federal Rules of Evidence, the Supreme Court of Ohio adopted its version of Fed.R.Evid. 803(6).8 Like Fed.R.Evid. 803(6), Evid.R. 803(6) does not exclude records of regularly conducted business activity on the basis of hearsay, even though the declarant is available as a witness: A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. [Emphasis added.] Like R.C. 2317.40, the court rule retained the words acts, events, and conditions of the business record hearsay exception but it did not expound upon that list to include the terms diagnosis and opinions as incorporated into the federal rule.9 A review of the staff notes accompanying both the Ohio and federal rule helps explain the reason for the omission. The 1980 staff notes accompanying Evid.R. 803(6) pointed out the opinions or diagnoses discrepancy with the federal rule: The Ohio rule departs from the Federal Evidence Rule by deleting "opinions and diagnoses" as admissible under this section. It is not clear how far present Ohio law permits such evidence to be admitted. In Hytha v. Schwendeman (1974), 40 Ohio App. 2d 478, 69 O.O.2d 419, 320 N.E.2d 312, the Franklin County Court of Appeals set forth seven criteria for a diagnosis to be admissible when contained in a hospital record. The Hytha case may retain validity in so far as it may assist in determining the point at which, in medical records, an act, event or condition admissible under the exception becomes an impermissible opinion or diagnosis under the rule. Interestingly, and in contrast to the Ohio 1980 staff notes, the 1972 advisory committee notes accompanying the federal rule cite Weis as authority for including the opinions or diagnoses phrase in the rule: Entries in the form of opinions were not encountered in traditional business records in view of the purely factual nature of the items recorded, but they are now commonly encountered with respect to medical diagnoses, prognoses, and test results, as well as occasionally in other areas. The Commonwealth Fund Act provided only for records of an "act, transaction, occurrence, or event," while the Uniform Act, Model Code Rule 514, and Uniform Rule 63(13) merely added the ambiguous term "condition." The limited phrasing of the Commonwealth Fund Act, 28 U.S.C. § 1732, may account for the reluctance of some federal decisions to admit diagnostic entries. New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297 (1945); Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957), cert. denied 356 U.S. 961, 78 S. Ct. 997, 2 L. Ed. 2d 1067; England v. United States, 174 F.2d 466 (5th Cir. 1949); Skogen v. Dow Chemical Co., 375 F.2d 692 (8th Cir. 1967). Other federal decisions, however, experienced no difficulty in freely admitting diagnostic entries. Reed v. Order of United Commercial Travelers, 123 F.2d 252 (2d Cir. 1941); Buckminster's Estate v. Commissioner of Internal Revenue, 147 F.2d 331 (2d Cir. 1944); Medina v. Erickson, 226 F.2d 475 (9th Cir. 1955); Thomas v. Hogan, 308 F.2d 355 (4th Cir. 1962); Glawe v. Rulon, 284 F.2d 495 (8th Cir. 1960). In the state courts, the trend favors admissibility. Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938); Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R. 2d 1022 (1956); People v. Kohlmeyer, 284 N.Y. 366, 31 N.E.2d 490 (1940); Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245 (1947). In order to make clear its adherence to the latter position, the rule specifically includes both diagnoses and opinions, in addition to acts, events, and conditions, as proper subjects of admissible entries. Given the language of the federal advisory committee notes, Ohio courts should not construe the omission of the words opinions and diagnoses in the Ohio rule as indicative of an intent to change the principles of Ohio common law. Because the federal rule setting forth the hearsay exception regarding records of regularly conducted business activity was adopted, at least in part, to reflect the common law of this state, we cannot say that the omission of the words opinion and diagnoses in Evid.R. 803(6) reflects an intent to preclude the admissibility of an otherwise qualified medical report or record under that exception merely because the report or record contains out-of-court opinions or diagnoses. Moreover, to have included the words opinions and diagnoses within the text of Evid.R. 803(6) would have been redundant of the case law applying R.C. 2317.40. As Evid.R. 102 (as amended eff. July 1, 1996), makes clear, [t]he principles of the common law of Ohio shall supplement the provisions of these rules, and the rules shall be construed to state the principles of the common law of Ohio unless the rule clearly indicates that change is intended. [Emphasis added.]10 Based upon Evid.R. 102, and considering both the case law interpreting R.C. 2317.40 rendered before the inception of Evid.R. 803(6) and the similarity in wording of both R.C. 2317.40 and Evid.R. 803(6), together with the intent of Fed.R.Evid. 803(6), it is clear that opinions and diagnoses contained within medical reports or records fall within the business records hearsay exception of Evid.R. 803(6). As such, the rules announced in Weis and Hytha supplement Evid.R. 803(6) to the extent they: (1) apply to the admissibility of medical records and their contents; and (2) have not been otherwise superceded by other evidentiary rules.11 In the present matter, while Dillard's contends that introducing these records, as such, precluded it from challenging whether the expert rendering a particular opinion was qualified to give a diagnosis, see Lambert, 79 Ohio App.3d at 24, citing Dillow v. Young (1965),3 Ohio App. 2d 110, 115, 209 N.E.2d 623, 627, reversed on other grounds (1966), 6 Ohio St. 2d 221, 217 N.E.2d 868, it did not object at trial or challenge the admission of the opinions upon that basis. As such, a review of such alleged error is not properly before this court for its review. Evid.R. 103(A)(1). In addition, Dillard's did not, nor does it now, challenge the admissibility of the opinions based upon a foundational or authentication basis but, then as now, argues here that the various doctors' opinions contained in the reports and testified to by Dr. Riley are not admissible under the Evid.R. 803(6) business records hearsay exception for the sole reason that they are opinions or diagnoses. As our discussion indicates, out-of-court medical opinions or diagnoses contained within an otherwise authenticated medical report or record that satisfies the foundational requirements of Evid.R. 803(6) comes within the ambit of the business record hearsay exception contained in that rule and is admissible unless the opinions or diagnoses violate other evidentiary rules. Accord Weis, 147 Ohio St. at 424-425; Hytha,40 Ohio App.2d at 482-483. We cannot conclude that it was prejudicial error to allow their introduction into evidence, and we overrule the first assignment of error. The second assignment of error states: II. THE COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR SUMMARY JUDGMENT WHERE PLAINTIFF'S EXPERT TESTIMONY WAS NOT SCIENTIFICALLY RELIABLE AS A MATTER OF LAW. Dillard's pre-trial motion challenged Dr. Riley's qualifications as an expert because his deposition testimony revealed that no one can explain why dystonia occurs or why peripheral trauma would cause such an order and, therefore, his opinion as to the cause of Smith's problems was mere speculation. It points out that Dr. Riley admitted that there is no objective test to determine whether the manifestation of dystonia is traumatic, psychological, or voluntary, and that learned articles relied upon by Dr. Riley and the testimony of Dr. Conomy, its expert, confirmed that the scientific community cannot reliably causally relate peripheral trauma to dystonia. Therefore, it submits, his testimony was not reliable under Evid.R. 702 and should not have been admitted. Smith responds that Dillard's bases its argument on the fact that Dr. Conomy's testimony was in conflict with that of Dr. Riley, but the mere fact that the experts disagree does not mean that Dr. Riley's testimony was unreliable. We agree with Smith. Evid.R. 702 provides as follows: A witness may testify as an expert if all of the following apply: (A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; (B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; (C) The witness' testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply: (1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles; (2) The design of the procedure, test, or experiment reliably implements the theory; (3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result. [Emphasis added.] Dillard's does not contest Dr. Riley's status as an expert or his testimony as it related to matters beyond the knowledge or experience possessed by lay persons, only the reliability of his opinion under division (C). When determining whether an expert's testimony is admissible under Evid.R. 702(C), the judge must focus upon reliability, i.e., whether the opinion is based upon scientifically valid principles, not whether the expert's conclusions are correct or whether the testimony satisfies the proponent's burden of proof * * *. Miller v. Bike Athletic Co. (1998),80 Ohio St. 3d 607, 687 N.E.2d 735, paragraph one of the syllabus. When evaluating the reliability of scientific evidence, a judge considers several factors: (1) whether the theory or technique has been tested; (2) whether it has been subjected to peer review; (3) whether there is a known or potential rate of error; and (4) whether the methodology has gained general acceptance. Id. at 611, citing Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 593-594, 113 S. Ct. 2786,2797, 125 L. Ed. 2d 469. Not one of these factors, however, is a determinative prerequisite to admissibility. State v. Nemeth (1998),82 Ohio St. 3d 202, 211, 694 N.E.2d 1332. In addition, [t]he reliability requirement in Evid.R. 702 is a threshold determination that should focus on a particular type of scientific evidence, not the truth or falsity of an alleged scientific fact or truth. Id. Further, when reviewing a summary judgment motion, a trial court should not reject one expert opinion or another simply because it believes one theory over the other. Miller, 80 Ohio St.3d at 613-614. It is clear from Dillard's argument that it has mistaken an Evid.R. 702(C) challenge to the reliability of evidence with a challenge to the weight of the evidence that tends to show the causal relationship between Smith's dystonia and the June 3, 1992 injury. It does not contest that: (1) dystonia is a recognized disease that may result from peripheral trauma or that; (2) various doctors diagnosed Smith with the disease; or (3) the methodology or means of reaching Smith's diagnosis of dystonia. See Miller, 80 Ohio St.3d at 611. It claims only that the scientific community cannot explain howor whyperipheral trauma may result in dystonia. Such a challenge goes to the weight of the evidence rather than the reliability of the evidence determining cause and effect. A judge may not consider the weight of the evidence in ruling upon a motion for summary judgment but only whether there exists a genuine issue of material fact. Sterling v. Penn Traffic Co. (1998), 129 Ohio App. 3d 809,812, 719 N.E.2d 82 (The issue presented by a motion for summary judgment is not the weight of the evidence, but whether there is sufficient evidence of the character and quality set forth in Civ.R. 56 to show the existence or nonexistence of genuine issues of fact.); see Miller,80 Ohio St.3d at 613. Therefore, we cannot say that the judge erred in denying Dillard's motion for summary judgment on this basis, and we overrule its second assignment of error. In its third assignment of error, Dillard's again challenges the denial of its motion for summary judgment: III. [THE] TRIAL COURT ERRED IN DENYING [DILLARD'S] MOTION FOR SUMMARY JUDGMENT WHEN PLAINTIFF'S EXPERT TESTIMONY WAS INADMISSIBLE AS A MATTER OF LAW DUE TO [THE] EXPERT'S FAILURE TO OPINE IN TERMS OF PROBABILITY CONCERNING THE CAUSE OF PLAINTIFF'S DYSTONIA. Dillard's argues, as a matter of law, that Dr. Riley's testimony was incompetent for admission at trial because he failed to express a causal relationship between the work injury and dystonia in terms of medical probability. Smith contends that Dillards misrepresents the record. To be admissible, an expert's opinion regarding the proximate cause of an event must be expressed in terms of probability. Stinson v. England (1994), 69 Ohio St. 3d 451, 633 N.E.2d 532, paragraph one of the syllabus. An event is probable if there is a greater than fifty percent likelihood that it produced the occurrence at issue. Id. The expert's testimony need not include the magic words probability or certainty but, when reviewed in its entirety, it must be equivalent to an expression of probability. Schroeder v. Parker (Dec. 10, 1998), Cuyahoga App. No. 73907, unreported. Because the expression of probability is a condition precedent to the admissibility of expert opinion regarding causation, it relates to the competence of the evidence and not its weight. Stinson, supra. To support its argument, Dillard's points to Dr. Riley's following deposition testimony elicited in response to its question: Q: Doctor, based on your opinion just given here, would you be able to say with any reasonable degree of medical certainty whether or not the cause of this condition is either organic or psychogenic? A: I couldn't say with any certainty. Stinson, however, does not require medical certainty to support the admissibility of expert opinion regarding causation. The record reveals, and Dillard's acknowledged in its brief, that Dr. Riley maintained during his deposition that, based upon a medical probability, Smith suffered from an organically based, posttraumatic dystonia. We find no merit to Dillard's argument and overrule the third assignment of error. Judgment affirmed. It is ordered that the appellee recover from appellant her costs herein taxed. This court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DIANE KARPINSKI, J., REGARDING ASSIGNMENT OF ERROR ONE, CONCURS IN JUDGMENT ONLY; CONCURS COMPLETELY WITH THE REMAINDER OF THE MAJORITY OPINION; TERRENCE O'DONNELL, P.J., DISSENTS (SEE DISSENTING OPINION ATTACHED TO JOURNAL ENTRY). 1 Meyers v. Hot Bagels Factory, Inc. (1999), 131 Ohio App. 3d 82,101, 721 N.E.2d 1068 ([T]he report contains a diagnosis, and Evid.R. 803(6) does not allow for opinions and diagnoses found in business records to be admitted into evidence.); Bush v. Burchett (June 13, 1995), Athens App. No. 94CA2237, unreported (both the plain language to Evid.R. 803(6) and the Staff Note make it clear Ohio does not provide an exception to the hearsay rule for that out-of-court medical opinions or diagnoses). We also reject the dicta in Cater v. Cleveland (May 8, 1997), Cuyahoga App. No. 70674, unreported, reversed and remanded on other grounds, 83 Ohio St. 3d 24, where the writing judge concluded, with whom the two remaining judges concurred in judgment only, that unlike its federal counterpart, Ohio's Evid.R. 803(6) does not provide an exception to the hearsay rule for out-of-court medical opinions or diagnoses. 2 The proponent of the evidence, or the parties must stipulate, that (1) the records were made at or near the time of the event, (2) the records were kept in the ordinary course of business, and (3) the records were made by a person with knowledge. We believe, however, that when a party desires to make an authenticity stipulation solely for Evid.R. 901 purposes and not for Evid.R. 803(6) purposes, the party must explicitly bring to the court's attention the limited nature of the stipulation. Lambert v. Goodyear Tire Rubber Co (1992), 79 Ohio App. 3d 15, 27,606 N.E.2d 983; see Quiller v. Mayfield (Aug. 17, 1989), Franklin App. No. 88AP-1115, unreported. 3 E.g., Hunt v. Mayfield (1989), 65 Ohio App. 3d 349, 354,583 N.E.2d 1349. 4 The text of the Hytha opinion uses the terms diagnosis and opinion interchangeably. 5 Williams v. Mayfield (Nov. 29, 1990), Franklin App. No. 90AP-144, unreported; see, also, State ex rel. Shumway v. State Teachers Retirement Bd. (1996), 114 Ohio App. 3d 280, 288, 683 N.E.2d 70 (The information received from outside sources is not part of STRS business records for purposes of Evid.R. 803(6), since the information from outside sources was not properly authenticated.). But cf. Pearson v. Wasell (1998),131 Ohio App. 3d 700, 707, 723 N.E.2d 609 (Seventh District Court of Appeals, Columbiana County, concluded that the attending physician could testify regarding the contents of a letter from the referring physician which expressed an opinion about plaintiff's motivation for the lawsuit because the letter satisfied the admissibility requirements of Evid.R. 803(6)). 6 Pursuant to Rep.R. 2(F), [t]he syllabus of a Court of Appeals opinion shall not be considered the controlling statement of either the point or points of law decided, or law of the case, but rather as a summary for the convenience of the public and the Bar * * *. [T]he point or points of law decided in the case are contained within the text of the opinion, and are those necessarily arising from the facts of the specific case before the court for adjudication. See Lambert,79 Ohio App.3d at 23. 7 With the adoption of the Fed.R.Evid. 803(6) (eff. July 1, 1975), Congress made substantial changes to the statute in 1975. Jan. 2, 1975, P. L. 93-595, § 2(b), 88 Stat. 1949. The statute now addresses the admissibility of copies of business records. 8 62 Ohio St. 2d xxxi, xlv (eff. July 1, 1980). 9 Fed.R.Evid. 803(6) differs slightly, because it includes opinions and diagnoses in its list of potentially admissible content: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time * * * are admissible * * *. It also does not include reference to the corresponding Fed.R.Evid. 901(b)(10). 10 Evid.R. 102, Staff Notes (1996) provides the background for this rule: As originally adopted, Evid. R. 102 referred to the common law of Ohio, but only as a framework for construing the particular rules within the Rules of Evidence. The original text of Rule 102 did not suggest what role, if any, the common law was to have in regard to evidentiary issues as to which the Rules of Evidence were silent. In the years since Ohio adopted the Rules of Evidence, Ohio has added rules codifying the common law on certain topics that the Rules had not addressed. * * * The Rules of Evidence * * * are not an exhaustive compilation of the rules governing evidence questions, nor are the rules preemptive as to subjects that they do not address. The amendment makes clear in the text of the rule not only that the common law of Ohio provides a framework for construing the content of specific rules, but also that the common law provides the rules of decision as to questions not addressed by specific rules. See, also, Mastran v. Urichich (1988), 37 Ohio St. 3d 44, 48-49,523 N.E.2d 509. 11 The Hamilton County Court of Appeals recently addressed both R.C.2317.40 and Evid.R. 803(6) in the context of a medical report prepared at the request of the plaintiff's attorney. Meyers, 131 Ohio App.3d at 101. The court found the report inadmissible, holding that Evid.R. 803(6) does not allow for opinions and diagnosis found in business records to be admitted into evidence. It also concluded that report was inadmissible under R.C. 2317.40 because no foundation was laid to show that the summary constituted a systematic entry made in the regular course of [the doctor's] business. As such, Meyers, draws a distinction between the admissibility of opinions and diagnoses under R.C. 2317.40 and Evid.R. 803(6)). See, also, supra note 1 and accompanying text.

2016-07-06 06:42:17.92683+00

OPINION {¶ 1} The defendant-appellant, Jason Schmehl ("Schmehl"), appeals the judgment of the Auglaize County Municipal Court convicting him of operating a vehicle under the influence of alcohol, a violation of R.C. 4511.19(A)(1)(d), a misdemeanor of the first degree. {¶ 2} On February 26, 2005, at approximately 3:30 a.m., Patrolman Douglas Latimer ("Latimer") of the Minster Police Department and Patrolman Mike Skinner ("Skinner") of the New Bremen Police Department were on break at the Pak-a-Sak store in New Bremen. A man entered the store and told the officers he had almost been run off the road by somebody driving a gray pick-up truck with large tires. The man reported that the pick-up truck was traveling southbound on State Route 66. Latimer left the man with Skinner and drove south on Route 66. Skinner retrieved the license plate number of the vehicle the man was driving, and the man was later identified as Dajuan Price ("Price"). {¶ 3} As he drove south on State Route 66, Latimer observed Schmehl's truck, a blue and silver Dodge Ram with large tires, turn right onto East Third Street in the Village of Minster. The truck made another turn onto Lincoln Street. As he followed the truck, Latimer observed it travel left of center so he effectuated a traffic stop. Schmehl admitted to consuming three beers at his home, and Latimer administered several field sobriety tests, including the horizontal gaze nystagmus ("HGN"). Schmehl was subsequently arrested. Latimer transported Schmehl to the St. Mary's Police Department, where he administered one breath-alcohol test. Because the results were inconclusive, Latimer waited 20 minutes and administered a second test using a BAC Datamaster, which showed results of .150 grams of alcohol per 210 liters of breath. {¶ 4} On May 4, 2005, Schmehl filed a motion to suppress evidence seeking the exclusion of all evidence obtained from the traffic stop. Schmehl argued that Latimer "did not have probable cause or reasonable, articulable suspicion" to stop him. Second, Schmehl argued that a collection of bodily substances for alcoholic drug testing must be made within two hours from the alleged violation, and he was not tested within the time limit. Finally, Schmehl argued that Latimer did not enforce a statutory 20 minute observation period prior to conducting the breathalyzer test, and a radio frequency interference check was not performed as required under the Ohio Administrative Code. {¶ 5} The trial court held a suppression hearing on June 9, 2005. The State of Ohio ("State") presented testimony from Skinner and Latimer. Schmehl presented testimony from his father, Robert Schmehl. A videotape, photographs, and a packet containing various documents were admitted into evidence. The trial court filed a journal entry on June 30, 2005 overruling Schmehl's motion. The court found that Latimer "had reasonable cause to stop the vehicle simply because of the oral statement of Mr. Price. He was a citizen informant who made a face to face report to the officer of his observations." Journal Entry, Jun. 30, 2005. The court also found probable cause for the arrest, that the breathalyzer test was performed within the two hour time limit, the 20 minute observation period was properly completed, and the BAC DataMaster was properly tested for radio frequency interference. Id. Schmehl appeals from the trial court's judgment and asserts the following assignments of error: The Municipal Court of Auglaize County, Ohio committedreversible error in failing to suppress any evidence obtainedfollowing the stop of Jason Schmehl's vehicle, for the officerlacked the required reasonable suspicion to effectuate the stopwithout violating Jason Schmehl's Fourth Amendment rights. The Municipal Court of Auglaize County, Ohio committedreversible error in failing to suppress any evidence followingthe arrest of Jason Schmehl as the officer did not have probablecause for arrest. The Municipal Court of Auglaize County, Ohio committedreversible error in failing to suppress evidence stemming fromthe results of the BAC Data Master tests obtained from JasonSchmehl, as they did not meet the 2 hour limit required underOhio Rev[.] Code §§ 4511.19(D). The Municipal Court of Auglaize County, Ohio committedreversible error in failing to suppress evidence stemming fromthe BAC Data Master tests, as the officers administering the testdid not adhere to Ohio Adm. Code § 3701-53-02(C) requiring thattests should not be administered within the range of radiointerference. {¶ 6} The appeal of a trial court's decision on a motion to suppress evidence presents mixed questions of law and fact.State v. Dixon, 141 Ohio App. 3d 654, 658, 2001-Ohio-2120,752 N.E.2d 1005. Because the trial court determines the weight of the evidence and witness credibility during a suppression hearing, we are bound to accept its findings of fact if supported by competent, credible evidence. State v. Norman,136 Ohio App. 3d 46, 51, 52, 1999-Ohio-961, 735 N.E.2d 953 (citations omitted);State v. DeHass (1967), 10 Ohio St. 2d 230, 227 N.E.2d 212. However, we review de novo whether those facts meet the applicable legal standard. Dixon, supra at 659 (citing Statev. Anderson (1995), 100 Ohio App. 3d 688, 691, 654 N.E.2d 1034). {¶ 7} In the first assignment of error, Schmehl contends Latimer did not have reasonable suspicion or probable cause to effectuate a traffic stop. Schmehl contends the tip was unreliable because Price failed to identify himself to Latimer and he failed to provide an adequate vehicle description. In response to Schmehl's arguments, the State contends that Price's failure to identify himself at the Pak-a-Sak is irrelevant because he gave "sufficient information to Ptl Skinner that allowed officers to later find him and obtain a written statement, thus making an identified informant." The State also contends, "[t]he fact that the Defendant/Appellant might not be found guilty beyond a reasonable doubt of the minor misdemeanor [of driving left of center] does not defeat the much lower standard of reasonable articulable suspicion." For the reasons stated herein, we find probable cause for the stop based on a traffic violation. {¶ 8} The Fourth Amendment of the United States Constitution prohibits warrantless searches and seizures, which renders them per se unreasonable unless an exception applies. See Katz v.United States (1967), 389 U.S. 347, 357, 88 S. Ct. 507,19 L. Ed. 2d 576. An investigative stop, or Terry stop, is a common exception to the warrant requirement. Terry v. Ohio (1968),392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889. When a police officer stops a vehicle and detains its occupants, he has "seized" it and the occupants within the meaning of the Fourth andFourteenth Amendments of the United States Constitution. See Terry, supra at 8, 9. Before stopping a vehicle, the officer must have a reasonable suspicion, supported by specific and articulable facts, that criminal behavior has occurred, is occurring, or is imminent. State v. Chatton (1984), 11 Ohio St. 3d 59, 61,463 N.E.2d 1237, certiorari denied, 469 U.S. 856, 105 S. Ct. 182,83 L. Ed. 2d 116. In determining whether an officer has reasonable suspicion to effectuate a traffic stop, a court must consider the "totality of the circumstances." Maumee v. Weisner,87 Ohio St. 3d 295, 299, 1999-Ohio-68, 720 N.E.2d 507 (citing UnitedStates v. Cortez (1981), 449 U.S. 411, 417, 101 S. Ct. 690,66 L. Ed. 2d 621). "Under this analysis, `both the content of information possessed by police and its reliability' are relevant to the court's determination." Id. (quoting Alabama v. White (1990), 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301). {¶ 9} However, a vehicle stop effectuated with probable cause that a traffic violation has occurred, or was occurring, is reasonable per se. See Whren v. United States (1996),517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89; Dayton v. Erickson,76 Ohio St. 3d 3, 1996-Ohio-431, 665 N.E.2d 1091, at syllabus. The holding in Erickson was based largely on the reasoning of the Sixth Circuit Court of Appeals in United States v. Ferguson (C.A.6, 1993), 8 F.3d 385, where the court stated: "[w]e focus not on whether a reasonable officer `would' havestopped the suspect (even though he had probable cause to believethat a traffic violation had occurred), or whether any officer`could' have stopped the suspect (because a traffic violation hadin fact occurred), but on whether this particular officer infact had probable cause to believe that a traffic offense hadoccurred, regardless of whether this was the only basis or merelyone basis for the stop. The stop is reasonable if there wasprobable cause, and it is irrelevant what else the officer knewor suspected about the traffic violator at the time of the stop.It is also irrelevant whether the stop in question issufficiently ordinary or routine according to the generalpractice of the police department or the particular officermaking the stop." Erickson, supra at 9-10 (quoting Ferguson, supra at 391-392) (emphasis added). The Whren and Erickson holdings apply to Terry stops, and therefore, "where a police officer stops a vehicle based on reasonable articulable suspicion or probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable". McComb v. Andrews, 3rd Dist. No. 5-99-41, 2000 WL 296078, at * 5. Because driving left of center is a traffic violation, an officer who witnesses a driver violating R.C. 4511.25(A)1 would be justified in effectuating a traffic stop. {¶ 10} We note that the trial court made no factual findings as to the traffic violation. The evidence indicates that Lincoln Street is a two-lane road, there is a solid, double yellow line in the middle of the road by the school, and the road is unmarked where the alleged traffic violation occurred, although the width of the road does not deviate between the marked and unmarked sections. The video taken from Latimer's patrol car indicates that cars were parked along the right side of the length of the road, and it indicates several cars parked along the left side of the road. Hearing Tr., Sep. 21, 2005, at Ex. A. The video shows Schmehl driving in what appears to be the middle of the road, in that there seems to be an approximately equal distance between Schmehl's truck and each side of the road. Id. If this were the only evidence before us, we may have been persuaded to find a lack of probable cause for the violation based on the obstructions in the roadway (the parked cars), the width of Schmehl's truck, and the absence of on-coming traffic. See R.C.4511.25(A)(2); Andrews, supra at * 5. However, Latimer testified that he effectuated the stop based on the traffic violation. Hearing Tr., 18:7-10; 37. Latimer also testified that he observed, and the beginning of the video shows, the most severe act of driving left of center because Schmehl's tires almost touched the curb on the left side of the road. Id. at 33:1-6. Although we were unable to discern such egregious driving upon our review of the video, we may not weigh the officer's credibility. See id. at Ex. A. Latimer had probable cause to effectuate a traffic stop based on a violation of R.C.4511.25(A), which renders moot the issue of whether he had reasonable suspicion for the stop based on the informant's tip. Therefore, the first assignment of error is overruled. {¶ 11} In the second assignment of error, Schmehl contends Latimer did not have probable cause for arrest when the only evidence came from the HGN. The State responds that Latimer had probable cause based on Schmehl's driving, the HGN, Schmehl's admission that he consumed three beers, the strong odor of alcohol emanating from Schmehl, and his slurred speech and bloodshot eyes. {¶ 12} In determining whether an officer had probable cause to make an arrest for driving under the influence, courts must consider "`whether, at the moment of arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence.'" State v. Lamb, 3rd Dist. No. 14-03-30,2003-Ohio-6997, at ¶ 12 (quoting State v. Homan,89 Ohio St. 3d 421, 427, 2000-Ohio-212, 732 N.E.2d 952 (citations omitted)). In making this determination, the court must consider the totality of the circumstances. Id. (quoting Homan, supra at 427 (citations omitted)). Probable cause may be found even where no field sobriety tests were administered or where the results of field sobriety tests are suppressed. Id. at ¶ 13 (quotingHoman, supra at 427). {¶ 13} In this case, Latimer testified that he smelled the strong odor of alcoholic beverage emitting from Schmehl's person when he exited the truck. Hearing Tr., at 19:11, 13. Latimer observed slightly slurred speech and bloodshot eyes. Id. at 19:16. Schmehl admitted he consumed three beers at his home outside of New Bremen. Id. at 19:22. When asked where he was going, Schmehl first answered he was going to buy more beer, then he said he was buying cigarettes, and he finally stated that he was on his way to somebody else's house. Id. at 20:1-3. Latimer testified that prior to administering any field sobriety tests, and based on his experience both as a police officer and a lay person, he believed Schmehl was intoxicated due to "his driving, a the [sic] smell of alcohol, his admittance to use, a slurred speech and blood shot eyes prior to giving (inaudible)." Id. at 20:8-9. {¶ 14} Latimer administered the HGN and two field sobriety tests. On the HGN, he received six clues, which would indicate an 80% probability that the person has a blood alcohol content of .10 or higher. Id. at 21:3-14. Latimer admitted that Schmehl performed the walk and turn and the one-legged-stand test fairly well, and if his opinion had been based solely on Schmehl's performance of these two tests, he would not have believed Schmehl was intoxicated. Id. at 22:12-14. However, based on the HGN and the other factors listed above, Latimer believed Schmehl was intoxicated. Id. at 22:15-17. Based on this record, the totality of the circumstances indicates that Latimer had probable cause to arrest Schmehl for driving under the influence. SeeLamb, supra at ¶ 14 (although the results of the HGN and one-legged-stand test were suppressed, the officer had probable cause for arrest based on bloodshot and glassy eyes and a strong odor of alcoholic beverage). The second assignment of error is overruled. {¶ 15} In the third assignment of error, Schmehl contends he was given a breathalyzer test in violation of R.C. 4511.19(D) because more than two hours had transpired since the time of the violation. The State admits that the witnesses provided inconsistent evidence as to when the offense occurred; however, the State contends that the trial court did not err by using the times reflected on the video taken from Latimer's cruiser. R.C.4511.19(D) states: [i]n any criminal prosecution or juvenile court proceeding fora violation of division (A) or (B) of this section or for anequivalent offense, the court may admit evidence on theconcentration of alcohol, drugs of abuse, or a combination ofthem in the defendant's whole blood, blood serum or plasma,breath, urine, or other bodily substance at the time of thealleged violation as shown by chemical analysis of the substancewithdrawn within two hours of the time of the allegedviolation. (emphasis added). The statute clearly provides that a breath test must be administered within two hours of the violation. {¶ 16} In considering this issue, the trial court stated, "[t]he video made by the officer shows a clock time of 3:34.40 for the stop and 5:25 for the test. While the parties indicated that the court could use the tape to determine the time since all the other times appear to have been based upon clocks that were not synchronized, they obviously never checked the tape themselves." Journal Entry, at 2. The trial court's factual findings are supported by competent and credible evidence. The time on the video is clearly indicated, the officer did not stop the tape at any time, and the stop and test were recorded at the times mentioned by the trial court. Hearing Tr., at Ex. A. We cannot find that the trial court misapplied the facts to the law in this case. Based on the times displayed on the video, the final breath alcohol test was administered within the two hour limit required by R.C. 4511.19(D)(1). Even if the time on the video was not synchronized to any other time piece, the time recorded on the video was consistent. The third assignment of error is overruled. {¶ 17} In the fourth assignment of error, Schmehl contends that Latimer's "personal microphone transmitted during the entire duration of testing" so as to violate Ohio Adm. Code3701-53-02(C). In response, the State argues that Ohio State Patrol troopers substantially complied with the pertinent regulations in performing the RFI check. The State also contends that Schmehl's argument and supporting case law are based on a regulation, which has subsequently been amended so that there is no regulation prohibiting the use of any radio in the vicinity of a breath alcohol test. {¶ 18} The State bears the initial burden of demonstrating that a breath test was administered in substantial compliance with the Ohio Department of Health's regulations. See State v.Plummer (1986), 22 Ohio St. 3d 292, 490 N.E.2d 902. If the State meets its burden, the defendant must prove "that he or she was prejudiced by a variation from the regulations." State v. ElMessoussi, 3rd Dist. No. 14-03-53, 2004-Ohio-2473, at ¶ 7 (citing State v. Lauer, 146 Ohio App. 3d 354, 2001-Ohio-2291,766 N.E.2d 193 (citation omitted)). {¶ 19} Ohio Adm. Code 3701-53-04(A)(1) states: [a] senior operator shall perform an instrument check onapproved evidential breath testing instruments and a radiofrequency interference (RFI) check no less frequently than onceevery seven days in accordance with the appropriate instrumentchecklist for the instrument being used. The instrument check maybe performed anytime up to one hundred and ninety-two hours afterthe last instrument check. The instrument shall be checked to detect RFI using ahand-held radio normally used by the law enforcement agency. TheRFI detector check is valid when the evidential breath testinginstrument detects RFI or aborts a subject test. If the RFIdetector check is not valid, the instrument shall not be useduntil the instrument is serviced. In El Messoussi, supra, the appellant argued that the State failed to establish substantial compliance with Ohio Adm. Code3701-53-04. In that case, the State submitted into evidence "the BAC DataMaster Instrument Check Forms which included the dates of the BAC DataMaster instrument checks, the name of the operator of the checks and the results of the checks." El Messoussi, supra at ¶ 14. The State also presented the testimony of two police officers who had performed the checks both before and after the appellant was tested. Id. Both officers testified that they used their portable radios to test for RFI and reported that the BAC DataMaster had aborted. Id. at ¶¶ 11, 14. We found the above evidence sufficient to establish substantial compliance with Ohio Adm. Code 3701-53-04(A)(1). {¶ 20} In this case, the State presented less evidence than it did in El Messoussi because it did not present testimony concerning the RFI test. Instead, the State submitted into evidence a packet of documents collectively marked as State's Exhibit B. The first page of the packet was a certification signed by Lieutenant Daniel C. Lay, which indicated that he is the commanding officer of the Ohio State Highway Patrol, Post 6, and he is the "custodian of all documents concerning the calibration checks of the B.A.C. DataMaster" located at the St. Mary's Police Department. Lay certified that the attached documents were true and accurate copies. Included in the packet were two BAC Datamaster Instrument Check Forms, which indicate that the BAC Datamaster Latimer used on February 26, 2005 was tested on February 23, 2005 and March 2, 2005. The next documents certify that Jonathan Coffey and John Westerfield, who performed the RFI checks, are senior operators, and the last document certifies the test solution. In addition, the parties stipulated that the Ohio State Patrol troopers performed the RFI tests using the hand held radios issued to them. Hearing Tr., at 1:14-16; 2:3-4. We have previously held that a certified packet of documents, similar to what has been submitted here, is admissible under Evid.R. 902 and shows substantial compliance with the regulation. See State v. Reed, 3rd Dist. No. 15-03-08, 2004-Ohio-393, at ¶¶ 16-18; 21-22. Specifically, we noted: [t]he instrument checklists were self authenticating underEvid.R. 902(4) because they were copies of public documents thatwere certified under seal as true and accurate copies. * * *Moreover, we find that the checklists were competent and credibleevidence that the instrument check and radio frequencyinterference check were performed as required by Ohio Adm. Code3701-53-04. Id. at ¶ 22. In this case, the trial court found, and the record supports, substantial compliance with the regulations in performing the RFI checks both before and after Schmehl's blood alcohol was tested. {¶ 21} As the trial court noted, and the State argued, Schmehl has relied on case law, which is no longer applicable due to the amendment of Ohio Adm. Code 3701-53-02(C). The current version of the regulation became effective on September 30, 2002 and states: [b]reath samples of deep lung (alveolar) air shall be analyzedfor purposes of determining whether a person has a prohibitedbreath alcohol concentration with instruments approved underparagraphs (A) and (B) of this rule. Breath samples shall beanalyzed according to the operational checklist for theinstrument being used and checklist forms recording the resultsof subject tests shall be retained in accordance with paragraph(A) of rule 3701-53-01 of the Administrative Code. The resultsshall be recorded on forms prescribed by the director of health. The prior version of Ohio Adm. Code 3701-53-02(C) stated: [a] radio frequency interference (RFI) survey shall beperformed for each breath testing instrument listed in paragraphs(A)(1) to (A)(3) and (A)(5) of this rule that is in operation ateach breath testing site. RFI surveys are not required for theinstrument listed in paragraph (A)(4) of this rule. Surveyresults shall be recorded on the form set for in appendix G tothis rule. The original RFI survey form and any subsequent RFIsurvey forms shall be kept on file in the area where tests areperformed. A new survey shall be conducted when a breath testinginstrument's spatial placement or axis is changed from thatdesignated in the most recent survey form. Radio transmittingantennae shall not be used within any RFI-affected zone duringconduct of a subject test or a calibration check. Clearly, the current version of the regulation, unlike the former version, does not prohibit the use of transmitting antennae within the RFI affected zone of a BAC Datamaster. We have found no current regulation prohibiting the use of radios near a BAC Datamaster. {¶ 22} In making his argument that Latimer's microphone affected the breathalyzer test, Schmehl relies on State v.Witten (1990), 67 Ohio App. 3d 135, 139, 586 N.E.2d 203 ("[t]he operation of breath-testing instruments is affected when radio transmissions are made within certain distances of the instrument.") and State v. McNamara (1997),124 Ohio App. 3d 706, 715, 707 N.E.2d 539 ("[t]he plain meaning of Ohio Adm. Code § 3701-53-02(C) dictates that the state violates the regulation when unsurveyed radios are left `on' in the vicinity of the breath-testing instrument."). However, each of these cases relied on the former version of Ohio Adm. Code 3701-53-02(C). {¶ 23} In its judgment entry, the trial court noted that the Ohio State Patrol troopers performed RFI checks with their hand held radios, and the statute does not require RFI testing to be "repeated on all frequencies of all handheld radios for all agencies." Journal Entry, at 2. Finally, the trial court noted that Schmehl failed to "show that something occurred that actually affected his test." We agree with the trial court. As noted above, the State substantially complied with Ohio Adm. Code3701-53-04(A)(1), and Schmehl then had the burden of proving prejudice. The trial court found no facts indicating prejudice, and our review of the record supports its finding. Therefore, the fourth assignment of error is overruled. {¶ 24} Having overruled each assignment of error, the judgment of the Auglaize County Municipal Court is affirmed. Judgment affirmed. Shaw, J., concurs. Rogers, J., concurs in judgment only. 1 R.C. 4511.25(A) states: "[u]pon all roadways of sufficient width, a vehicle * * * shall be driven upon the right half of the roadway [.]"

2016-07-06 06:42:17.956649+00

OPINION {¶ 1} Appellant, Pilgrim Silk Flowers, Inc., appeals from a judgment of the Portage County Court of Common Pleas, denying its counterclaim against appellee, Chelsea GCA Realty Partnership, L.P. For the reasons that follow, we affirm. {¶ 2} The record discloses the following facts. By way of background, appellee managed property located in the city of Aurora, Portage County, Ohio, named Aurora Farms Factory Outlets Shopping Center ("the Shopping Center"). Appellee, acting as landlord, leased commercial space to various retail outlet stores. Appellant and appellee entered into a written lease agreement on July 12, 1999, allowing appellant, as tenant, to lease a commercial unit for a store at the Shopping Center. {¶ 3} On May 22, 2001, appellee filed a petition in forcible entry and detention in the Portage County Municipal Court, Kent Division. The petition alleged that appellant was in default of its obligation to pay rent under the terms of the lease. Appellee sought eviction, restitution, and monetary damages, resulting from appellant's breach of the lease agreement. Attached to the petition was a copy of the commercial lease. {¶ 4} On June 22, 2001, appellant filed its answer and counterclaim. Appellant's counterclaim maintained that appellee had breached its obligations under the lease and requested that appellee "reimburse [appellant] for improvements which were [appellee's] responsibility under the lease[.]" Appellant further claimed that appellee had failed to advertise its store as required by the lease. Shortly thereafter, this matter was transferred to the Portage County Court of Common Pleas. {¶ 5} On October 31, 2001, a stipulation for eviction and judgment entry was granted by the court. All parties agreed to the termination of the lease, and appellant agreed to vacate the premises and pay restitution. Subsequently, appellee filed a motion for partial summary judgment on appellant's counterclaims. The court denied appellee's motion for partial summary judgment. {¶ 6} This matter proceeded to a trial before a magistrate. Following trial, the magistrate issued a decision on November 26, 2002. The magistrate first granted appellee judgment in the amount of $93,149.64 for unpaid rent. The magistrate then proceeded to dismiss appellant's counterclaims. First, the magistrate found that appellant was responsible under the commercial lease to repair the store unit's HVAC system. Specifically, the magistrate cited to Section 7.03 of the commercial lease which held appellant responsible "for the maintenance and repair of the heating, ventilation and air conditioning equipment * * *." The magistrate noted that during trial appellant attempted to characterize the repairs to the HVAC system as a "replacement," thereby obligating appellee to incur the costs associated with replacing the system. However, based upon the testimony and evidence presented at trial, the magistrate found, "[t]he fix effected to the HVAC performed by [appellant's] contractor was `maintenance and repair of the heating, ventilation and air conditioning equipment' as set out in the Lease. [Appellant], rather than [appellee], had responsibility to fix the HVAC as performed by [appellant's] contractor." {¶ 7} With respect to appellant's remaining claims, the magistrate concluded, "[n]o date certain was set out in the Lease for advertising of [appellant's] business premises, and such was performed by [appellee] within a reasonable time. [Appellant's owner] admitted that [appellee] had no contractual responsibility to landscape the area in front of [the store]. No viable claim was proven regarding the disagreement over placement of [appellant's] store sign. No evidence of any kind was offered tending to show fraud on the part of [appellee]." Accordingly, the magistrate dismissed appellant's counterclaims. {¶ 8} On December 13, 2002, appellant filed timely objections to the magistrate's decision. Despite the timeliness of the objections, appellant failed to provide the court with a transcript of the magistrate's trial. Nevertheless, the objections argued that the magistrate failed to properly interpret the lease agreement and, therefore, erred in determining that appellant was responsible for the HVAC system. Appellant's objections also maintained that "[t]he failure of [appellee] to `replace' the heating and air conditioning system resulted in a constructive eviction." {¶ 9} On December 31, 2002, the court issued a judgment entry adopting the magistrate's decision, including the magistrate's conclusions of law and findings of fact, and dismissed appellant's counterclaims. In particular, the court stated, "[u]pon review and consideration of the `Magistrate Decision and Journal Entry,' the Court determines that there is no error of law or defect on the face of said determinations. The Court further finds that the `Magistrate Decision and Journal Entry' contains sufficient findings of fact and conclusions of law to allow the Court to make its independent analysis of the issues and to apply the appropriate rules of law in making its final decision and judgment entry in this matter." Accordingly, the court dismissed appellant's counterclaims and determined that its objections were not well-taken. {¶ 10} From this judgment, appellant filed a timely notice of appeal and now sets forth the following six assignments of error for our review: {¶ 11} "[1.] The trial court erred in failing to properly interpret the lease provisions as they related to common area and demised premises. {¶ 12} "[2.] The trial court erred in improperly expanding the scope of the phrase `as is.' {¶ 13} "[3.] The trial court erred in failing to properly interpret the obligations of the landlord versus tenant. {¶ 14} "[4.] The trial court erred in failing to differentiate between the phrase `repair and maintenance' versus `replace' under the terms of the lease. {¶ 15} "[5.] The trial court erred by failing to acknowledge the landlord's actions resulted in constructive eviction. {¶ 16} "[6.] The trial court erred by not allowing any of Defendant's claims under the counterclaim." {¶ 17} As an initial matter, the record in this case shows that, although a transcript of the magistrate's trial has been filed with this court, appellant failed to provide a transcript of the trial, or a suitable substitute, with its objections to the trial court. Thus, we are precluded from examining the transcript for the following reason. {¶ 18} Civ.R. 53(E)(3)(b) provides that "[a]ny objection to a finding of fact shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that fact or an affidavit of that evidence if a transcript is not available." The duty to provide a transcript or affidavit to the trial court rests with the person objecting to the magistrate's decision. Inre O'Neal (Nov. 24, 2000), 11th Dist. No. 99-A-0022, 2000 WL 1738366, at 3. This court has repeatedly held that if the objecting party fails to provide either of the above in support of his or her objections, they are "precluded from arguing factual determinations on appeal." Yancey v. Haehn (Mar. 3, 2000), 11th Dist. No. 99-G-2210, 2000 WL 263757, at 2. {¶ 19} In the case at bar, although appellant filed objections to the magistrate's decision, it failed to include a transcript of the magistrate's trial, or a suitable substitute, with the trial court. Appellant has subsequently filed a written transcript of the magistrate's trial with this court on appeal. We, however, are unable to consider anything that was not before the trial court when it overruled appellant's objections and ultimately adopted the magistrate's decision. See, e.g.,Mauerman v. Mauerman, 11th Dist. No. 2002-T-0049, 2003-Ohio-3876, at ¶ 14, (holding that supplementing the record on appeal with a transcript does not enable us to consider evidence that was not presented to the trial court at the time the court made its decision). {¶ 20} That being said, the trial court was still required to examine the magistrate's decision and determine whether there was an error of law or defect on the face of the decision. Civ.R. 53(E)(4)(a). Here, after reviewing the magistrate's decision, the trial court found "no error of law or defect on the face of said determinations." Our own review of the magistrate's decision shows that the magistrate fully complied with the procedural requirements of Civ.R. 53 and, therefore, there is no defect on the face of the magistrate's decision. {¶ 21} Moreover, our examination of the decision has failed to reveal any error of law. As mentioned previously, the magistrate found that the alterations made to the HVAC system were considered repairs or maintenance under Section 7.03 of the commercial lease, which is titled "Repairs and Maintenance By Tenant." Section 7.03 states in relevant part: {¶ 22} "* * * Tenant shall make all repairs and replacements to, and shall keep clean, neat, safe, sanitary, in good order, repair and condition * * * and free of vermin, the Demised Premises, including both inside and the outside, and any equipment, facilities, fixtures and systems including but not limited to fire detection and or prevention systems therein. * * * Tenant shall keep in full force and effect during the Term hereof a maintenance contract for the HVAC system with a company reasonably designated by Landlord, which contract shall include specific provisions for regularly scheduled periodic routine maintenance. * * *" {¶ 23} When construing any written instrument, the primary and paramount objective is to ascertain the intent of the parties. Aultman Hosp. Assn. v. Hosp. Care Corp. (1989),46 Ohio St. 3d 51, 53. If the language of the written instrument is clear and unambiguous, the interpretation of such instrument is a matter of law and the court shall determine the intent of the parties through the language employed. Seminatore v. Med. Mut.of Ohio (2000), 136 Ohio App. 3d 758, 763. "A court must give effect to the contract's express terms in determining the rights and obligations of the parties and cannot, in effect, create a new contract by finding an intent not expressed in the clear language used by the parties." Id. {¶ 24} Here, the magistrate determined that the clear and unambiguous language of Section 7.03 established appellant's responsibility to repair the HVAC system. Our own review demonstrates that the language of Section 7.03 is clear and unambiguous and sets forth the intent of both parties to obligate appellant, as a tenant, to repair and maintain the HVAC system. Thus, with respect to the magistrate's decision regarding the HVAC system, there is no error of law. {¶ 25} Nevertheless, appellant's first four assignments of error challenge the magistrate's finding that the commercial lease obligated appellant to repair the HVAC system. Each of these four assignments of error is predicated upon appellant's argument that the HVAC system was not part of the "demised premises" as defined by the lease. Rather, appellant maintains that the HVAC system was part of the store's defined "common area." As a result, appellant concludes that those portions of the lease relating to the "demised premises" of the store, including Section 7.03, are not applicable to the case at bar. {¶ 26} To support its contentions, appellant relies upon testimony presented at trial. Namely, appellant cites to testimony which allegedly demonstrates that various portions of the HVAC system were located outside of the leased store unit and above the ceiling of the store unit. Appellant attempts to use these factual determinations in conjunction with the language of the lease agreement to establish that the HVAC system was not part of the "demised premises." {¶ 27} Because appellant's arguments under its first four assignments of error are based upon testimony and evidence presented during the magistrate's trial, this court is unable to review appellant's factual arguments as a transcript was not before the trial court. We simply are unable to review the transcript and exhibits produced at trial to verify these facts. Without the relevant facts to support its first four assignments of error, appellant cannot demonstrate any type of error. Thus, we will presume the regularity of the trial court's factual and legal conclusions. Appellant's first four assignments of error are without merit. {¶ 28} Under its fifth assignment of error, appellant argues that the trial court failed to acknowledge that appellee's inability to provide proper heating and cooling resulted in a constructive eviction. Appellant contends that the HVAC's system malfunction caused the leased premises to become untenable and uninhabitable. {¶ 29} At the outset, we note that appellant failed to state constructive eviction as an affirmative defense within its answer or as an issue for resolution under its counterclaim. The first time appellant raised the issue of constructive eviction was in its objections to the magistrate's decision. {¶ 30} A party's failure to raise the issue of constructive eviction as part of its pleadings waives this contention as an affirmative defense. State ex rel. Shemo v. Mayfield Heights,96 Ohio St. 3d 379, 2002-Ohio-4905, at ¶ 25. See, also, Moliquev. Allen, 2nd Dist. No. 19897, 2002-Ohio-460, (A party's failure to raise constructive eviction as an affirmative defense acts as a waiver of such defense.). Moreover, without an amendment of the pleadings under Civ.R. 15(B), a party is precluded from submitting issues not raised by the pleadings unless such issues were tried by the express or implied consent of the parties. {¶ 31} A review of the record before us demonstrates that appellant failed to assert constructive eviction as an affirmative defense. The record also shows appellant's failure to amend its answer and counterclaim, pursuant to Civ.R. 15(B), to include constructive eviction as a counterclaim. As mentioned previously, we are precluded from reviewing the transcript; thus, there is no evidence that the issue of constructive eviction was expressly or impliedly tried by the parties. As a result, appellant has waived any contention with respect to the issue of constructive eviction. Appellant's fifth assignment of error is without merit. {¶ 32} Even assuming appellant had properly raised the issue of constructive eviction, its argument under its fifth assignment of error would still fail. The general basis of constructive eviction is that acts of interference by a landlord compel a tenant to leave. Foote Theatre, Inc., v. Dixie Roller Rink,Inc., (1984), 14 Ohio App. 3d 456, 457. We have previously determined that it was not appellee's responsibility, as a landlord, to repair or replace the HVAC system. Thus, any claim of constructive eviction based upon appellee's actions, or omissions, with respect to the repair or replacement of the HVAC system did not act to interfere with appellant's habitation of the store as the HVAC system was not appellee's obligation. For this additional reason, appellant's fifth assignment of error is without merit. {¶ 33} Appellant's sixth assignment of error argues that the trial court erred in dismissing its counterclaim for appellee's failure to advertise its store. In short, appellant maintains that the lease required appellee to advertise its store in a timely fashion, as appellant had been paying a monthly advertising fee. {¶ 34} Despite appellant's contentions on appeal, an examination of its objections to the magistrate's decision reveals no objection to the magistrate's conclusion of law or finding of fact in relation to advertising. "Civ.R. 53(E)(3)(b) prohibits a party from `assigning as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule.'" State ex rel. Booher v. Honda of Am. Mfg., Inc.,88 Ohio St. 3d 52, 53, 2000-Ohio-269, quoting Civ.R. 53(E)(3)(b). Accordingly, appellant's failure to object to the magistrate's findings or conclusions relating to appellee's advertising precludes an objection on appeal. Appellant's sixth assignment of error is without merit. {¶ 35} Based upon the foregoing analysis, appellant's six assignments of error are without merit. We hereby affirm the judgment of the trial court. O'Neill, J., Grendell, J., concur.

2016-07-06 06:42:17.984729+00

OPINION Plaintiff, Cincinnati Companies ("Cincinnati"), appeals from a summary judgment rendered in favor of Defendant, Ford Motor Company ("Ford"), on Cincinnati's products liability claim. Cincinnati's claim for relief arises from a fire in the engine compartment of a 1995 Mercury Sable automobile, resulting in damage to the automobile for which Cincinnati reimbursed the owner pursuant to a policy of insurance. Cincinnati subsequently commenced this action against Ford, which had manufactured the automobile, in subrogation to the rights of the owner. Cincinnati alleged that Ford "negligently designed and manufactured the . . . automobile" and that the fire and resulting damage were proximate results of Ford's negligence. Ford denied the allegations. Through discovery, Ford determined that Cincinnati would rely on the testimony of C. R. Spitler, a fire investigator, to prove its claim. Ford deposed Spitler, who testified that he had examined the Mercury to determine the origin and cause of the fire. Spitler opined that the fire was caused by an electrical short-circuit in a wire connected to the Integrated Control Module ("ICM") of the automobile. He offered no opinion concerning whether the short-circuit resulted from a design or manufacturing defect, as Cincinnati had alleged, stating that he is not qualified to offer an opinion on those matters. Ford moved for summary judgment, arguing that Spitler's testimony demonstrates that Cincinnati could not prove the elements of a product liability claim required by the three-prong test set out in Lonzrick v. Republic Steel orp. (1966), 6 Ohio St. 2d 227. The trial court agreed, finding that Cincinnati could not prove that the short-circuit resulted from a defect in the automobile's manufacture or design. Accordingly, the court granted summary judgment for Ford. Cincinnati filed a timely notice of appeal. It presents four assignments of error. FIRST ASSIGNMENT OF ERROR THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT/APPELLEE, THERE WAS A GENUINE ISSUE OF MATERIAL FACT WHETHER A MANUFACTURING DEFECT WAS THE CAUSE OF THE FIRE. FOURTH ASSIGNMENT OF ERROR THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT/APPELLEE, THERE WAS A GENUINE ISSUE OF MATERIAL FACT WHETHER A DEFECT IN THE DESIGN OF THE AUTOMOBILE CAUSED THE FIRE. Due to the similarities of fact and law in the first and fourth assignments of error, we will consider them together. Summary judgment may not be granted unless the entire record demonstrates that there is no genuine issue of material fact and that the moving party is, on that record, entitled to judgment as a matter of law. All evidence must be construed most strongly in favor of the non-moving party. Civ.R. 56. Product liability claims impose a burden on the claimant to prove three things; (1) that there was a defect in the product as it was manufactured and sold, (2) that the defect existed when it left the defendant's hands, and (3) that the defect was the direct and proximate cause of the defendant's injuries and losses. Lonzrick v. Republic Steel, Corp., supra. Generally, direct evidence is used to prove each of the three Lonzrick prongs. In some instances, circumstantial evidence will satisfy the requirement involved. Adkins v. General Motors Corp. (1999),132 Ohio App. 3d 556. One of those instances concerns proof of the defect itself, and is termed the "consumer expectation standard." The consumer expectation standard permits a plaintiff to prove the first Lonzrick element, the existence of a defect, "if (the product) is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner." State Farm Fire Cas. V. Chrysler Corp. (1988), 37 Ohio St. 3d 1, 6. In design defect claims, though not in manufacturing defect claims, that finding also supports an inference that the defect existed when the product left the manufacturer's hands, the second Lonzrick prong, absent evidence of a substantial change in the product since that time. Id. Even so, the consumer expectation standard does not permit an inference concerning causation, the third prong of Lonzrick. The causation prong requires a plaintiff "to establish causation — to prove by a preponderance of the evidence that it was some aspect of the challenged design which rendered the product less safe than the ordinary consumer would expect, resulting in injury." Id., at p. 7. Here, a fire spontaneously occurred in the engine compartment of the automobile, that spread to consume the vehicle and resulted in the losses that Cincinnati suffered. That is evidence from which reasonable minds could find that Ford's product was more dangerous than an ordinary consumer would expect. That finding permits two inferences under the consumer expectation standard. First, it permits an inference that a defect existed, the first Lonzrick element. Second, absent any evidence in this record of a substantial change in the vehicle's condition, and none exists here, it permits an inference applicable to Cincinnati's design defect claim that the defect existed when the auto left Ford's hands, the second Lonzrick element. Cincinnati was yet required to prove, by other evidence, the third Lonzrick element, that the defect was the direct and proximate cause of its injuries and losses. In State Farm, supra, a fire also occurred spontaneously in an automobile, consuming the automobile and damaging the owner's home. The plaintiffs offered evidence in the form of expert opinion that the cause of the fire was an electrical malfunction under the vehicle's dashboard, which most likely occurred when one of the wires retained an electrical charge after the vehicle was stopped and parked in the owner's garage. However, the specific wire involved could not be identified, perhaps because of the damage that resulted. The Supreme Court held that the causation prong of Lonzrick, supra, was not satisfied. Here, the condition of the vehicle apparently did not prevent an examination by Cincinnati's expert, Spitler. His deposition testimony produced the following findings and conclusions: A. There was a plug that, the wiring that came out of the Integrated Control Module went into this plug, and then the wiring out of the plug went to the fan. The plug was just melted down to almost a ball. Q. So, it was an area of intense heat? A. Yes. And the wiring to the Control Module, there were a couple of wires that showed some intense burn, with the insulation burnt off. But not all the wiring showed that. There was some that showed that the wiring was, the insulation was still in tact [sic]. Q. On the Control Module? A. On the Control Module. But the wiring going to this connector had all the insulation burnt off, and the connector was melted down into a ball. Q. What did that indicate to you? A. Whatever wiring went to that particular connector was the cause of this particular fire. Q. So, that was focused in from the origin to the particular site? A. That's correct. Q. Of the fire? A. Yes. So I took that connector apart, and that's when I found this piece of wiring that had some additional welding and shorting taking place. Q. When you say additional welding, what do you mean? A. Intense heat had caused the copper wiring to — the braided copper wiring to weld together. Q. That does not necessarily mean that anything particular went wrong with that wiring, but only that it was in an areas of intense heat? A. There's pro and con along those lines. In my opinion that's in the area that caused the fire, which would indicate that that particular wire, which was a hot lead, was probably the cause of this particular fire. It is certainly in the area of the fire. Q. But you can't determine for certain, other than that that wire was absolutely in the area of intense heat, can you? A. Are you asking me did it result as a cause of the fire, or a result of being in the area of the fire? Q. Well, you explained to me an area of origin of a fire. A. Correct. Q. We have a V pattern to define that area. We have intense heat in that area, with white heat. We have intense melt with wires welding, and other indications, parts, plastic parts melted, I think you mentioned. If we have now focused down to a smaller area of our cause, simply because a part shows intense heat or intense melt, does that tell you for certain that that particular piece was the cause, or simply that it's in the area of the cause? A. In my opinion that was the cause. Q. Okay. How do you tell whether something is, if you have pieces next to each other, or parts next to each other, and they're both closely situated, how do you tell which one has intense heat and intense melt because it was next to the cause? A. Normally you won't have that. If it's wiring that's the cause of the fire, that's going to be shorted and welded. The wiring directly beside of it could have sustained some intense amount of heat, however, it's not going to be shorted and welded. Q. And what does welding look like? A. If you can picture a braided wire in your mind. An extension cord, for example, it has braided wire. Normally it's really flexible. If you push it the braids are gonna' come apart and all that. We would mention that that got so hot as a result of a short taking place that all those braids are — I want to say welded together, but that's not proper terminology, probably because we're talking about a weld. All those braids are put together into one strand, so to speak. Q. You're saying they are like melted together? A. Well, copper melts at 1200 degrees, and that doesn't get that hot, but welded together is really what I'm trying to say. The braids are not braided any more, they are welded into one piece. Q. You couldn't separate them? A. That's correct. Q. Okay. You also mentioned that it showed, other than welding, it showed a short? A. Yeah, it's by beading. And that's an area that, if you want to look at Photograph Number 13, it'll show that small bead in that area. Q. What do you mean by beading? A. That green area. There's a bead. And again, there's pro and con as to beading, whether it's the cause of the fire or happened as a result of the fire. However, in this case the fact that the braided wire was welded, I would say that it was the cause of the fire. Q. Okay. And when we are talking again as the cause of the fire, we're talking in terms of the specific location of the start of the fire? A. Correct. Spitler Dep. at 53-56 (emphasis added). Spitler's testimony was proof of causation which related some aspect of the automobile's design, the specific wire that melted from intense heat to cause the fire, to the losses that Cincinnati suffered. Applying the standards that Civ.R. 56(C) imposes, that evidence is sufficient to prove causation, the third prong of Lonzrick. The first assignment of error is overruled. The fourth assignment of error is sustained. SECOND ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO EVIDENCE TO SUGGEST THAT THE 1995 MERCURY SABLE WAS IN THE SAME CONDITION ON THE DAY OF THE FIRE AS IT WAS ON THE MANUFACTURE DATE, WHEN THERE WAS TESTIMONY IN THE RECORD THAT THE CAR WAS NEW, UNDER WARRANTY, AND WAS IN THE SAME CONDITION AS WHEN MANUFACTURED. THIRD ASSIGNMENT OF ERROR THE TRIAL COURT COMMITTED ERROR BY NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. These assignments of error are rendered moot by our determination of the fourth assignment of error. Therefore, pursuant to App.R. 12(A)(1)(c), we decline to determine them. Conclusion Having sustained the fourth assignment of error, and having overruled the first, second, and third assignments of error, we will affirm the trial court's judgment in part and reverse, in part. We remand the cause to the trial court for further proceedings on the design defect claim. ____________ GRADY, J. WOLFF, P. J., and KERNS, 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 06:42:18.015709+00

OPINION {¶ 1} Plaintiff-appellant, Christopher J. Wynn, appeals from a judgment of the Court of Claims of Ohio granting summary judgment to defendant-appellee, the Ohio Department of Job and Family Services ("ODJFS"). Because there are no issues of material fact and appellee is entitled to judgment as a matter of law, we affirm that judgment. {¶ 2} Appellant was under court order to make child support payments of $592.73 per month and, as of November 16, 2001, was in default of his child support obligation in a total amount of $6,191.28. Appellant was notified of his default and was informed that his driver's license would be suspended if he did not make a $1,513.92 payment to reduce his deficiency. Randall Snyder, an employee of the Franklin County Child Support Enforcement Agency ("FCCSEA"), initiated proceedings pursuant to R.C. 3123.55 to suspend appellant's driver's license when appellant did not make sufficient payments toward his deficiency. In March 2002, appellant's driver's license was suspended. {¶ 3} On April 12, 2002, appellant filed a complaint in the Court of Claims asserting claims against FCCSEA due to its suspension of his driver's license. The trial court dismissed FCCSEA as a defendant because it was not a state agency or instrumentality. Appellant subsequently amended his complaint to replace FCCSEA with ODJFS as the defendant. {¶ 4} After an evidentiary hearing, the trial court determined that Snyder was not employed by the state or ODJFS and, therefore, it lacked jurisdiction over any claims asserted against him. Thereafter, ODJFS filed a motion for summary judgment arguing that because Snyder was not employed by the state or ODJFS, it could not be liable for any actions Snyder took which allegedly damaged appellant. The trial court agreed that ODJFS could not be liable to appellant for Snyder's actions and granted judgment in favor of ODJFS as a matter of law. Appellant appeals from that judgment but fails to clearly articulate any assignments of error. Nevertheless, in the interest of justice, we have reviewed the propriety of the trial court's grant of summary judgment in favor of ODJFS in this matter. {¶ 5} Appellate review of summary judgment motions is de novo. Heltonv. 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. {¶ 6} Appellant's claims arise solely from Snyder's actions, which appellant claims were taken on behalf of ODJFS. ODJFS contends that it cannot be liable to appellant because Snyder did not work for ODJFS and did not act on its behalf when he took actions to suspend appellant's driver's license. We agree. For an employer to be liable under the doctrine of respondeat superior, an employee's tortious act must be committed within the scope of employment and, if an intentional tort, it must be calculated to facilitate or promote the employer's business or interest. See Browning v. Ohio State Hwy. Patrol, 151 Ohio App. 3d 798,2003-Ohio-1108, at ¶ 60. {¶ 7} Snyder was not employed by the state or ODJFS when he took actions to suspend appellant's driver's license. Based upon Snyder's affidavit submitted in support of ODJFS' motion for summary judgment, all of his actions in connection with the suspension of appellant's driver's license were taken as an employee of FCCSEA. ODJFS was not involved in the suspension of appellant's driver's license. Snyder stated in his affidavit that ODJFS did not participate in appellant's driver's license suspension and that Snyder did not request approval or consent from ODJFS to suspend appellant's driver's license. Appellant did not present any competent evidence to demonstrate a genuine issue of material fact as to either of these two points. Therefore, as a matter of law, ODJFS cannot be liable to appellant under a respondeat superior theory for Snyder's actions because Snyder was not employed by the state or ODJFS and he did not act on behalf of ODJFS. Appellant does not present any other decipherable legal theories that could impose liability on ODJFS for Snyder's actions. {¶ 8} Because the trial court properly held that there were no material issues of fact and that ODJFS was entitled to judgment as a matter of law, we affirm the trial court's grant of summary judgment. Judgment affirmed. Bryant and Petree, JJ., concur.

2016-07-06 06:42:18.116429+00

OPINION {¶ 1} After entering a plea of no contest, Charles G. Smith was convicted of an assault on a local corrections officer in violation of R.C. 2903.13(A) and (C)(2)(b). He was sentenced to five years of community control sanctions. Smith appeals from his conviction. {¶ 2} On November 14, 2002, Smith assaulted Corrections Officer Jeffrey J. Vest in the booking area of the Montgomery County Jail. He was indicted for assault of a local corrections officer, and he entered a plea of not guilty. On April 2, 2003, Smith filed a motion to dismiss on the basis that exculpatory evidence had not been provided to him by the state as required by California v. Trombetta (1984), 467 U.S. 479, 489,104 S. Ct. 2528, 81 L. Ed. 2d 413, and Arizona v. Youngblood (1988),488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281. Specifically, he sought a recording of a surveillance camera in the jail, which was in the vicinity of the assault. He also claimed that the investigating officers had engaged in "bad investigation or purposeful neglect" in failing to interview inmate witnesses to the assault. For these reasons, Smith requested that the trial court dismiss the charge against him. {¶ 3} Following a hearing, the trial court overruled the motion to dismiss. Smith subsequently changed his plea to no contest. He was convicted and sentenced as discussed supra. {¶ 4} Smith raises one assignment of error on appeal. {¶ 5} "* * * The court erred in overruling defendant's motion to dismiss based on a failure of the state to preserve and supply defendant with potentially key exculpatory evidence * * *." {¶ 6} Smith claims that his due process rights were violated by the investigating officer's failure to identify and interview possible inmate witnesses to the assault and by the state's failure to preserve a video recording from the jail. {¶ 7} Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the state must disclose material evidence favorable to the defendant. Brady v. Maryland (1963), 373 U.S. 83,83 S. Ct. 1194, 10 L. Ed. 2d 215; State v. Yarbrough, 104 Ohio St. 3d 1, 12-13,2004-Ohio-6087, 817 N.E.2d 845, ¶ 69. Evidence is material within the meaning of Brady only if there exists a reasonable probability that the result would have been different had the evidence been disclosed to the defendant. Yarbrough, 104 Ohio St.3d at 12-13. The Due Process Clause further protects a criminal defendant from being convicted where the state has failed to preserve materially exculpatory evidence or destroys in bad faith potentially useful evidence. State v. Bolden, Montgomery App. No. 19943, 2004-Ohio-2315, at ¶ 51; State v. Franklin, Montgomery App. No. 19041, 2002-Ohio-2370. In order to be materially exculpatory, "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Franklin, supra, quoting Trombetta, 467 U.S. at 489. When evidence is only potentially exculpatory, the destruction of such evidence does not violate due process unless the police acted in bad faith. Id. "The term `bad faith' generally implies something more than bad judgment or negligence. `It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.'" Franklin, supra, quoting State v. Buhrman (Sept. 12, 1997), Greene App. No. 96 CA 145. {¶ 8} We will first address the failure to preserve the video recording. {¶ 9} At the hearing on the motion to dismiss, Sergeant David Hale testified that the surveillance camera covering the booking area "self-records over each other" automatically every ten to thirty days. He said that images can be transferred to a computer if the need to do so is identified before the recording space is reused and that, at the time of the assault, the system was new and it took approximately forty minutes to effectuate such a transfer. He also testified that two or three assaults occurred each day in this section of the jail, and that the recordings of the assaults were not routinely saved to computer. {¶ 10} Smith conceded in his motion to dismiss that the surveillance camera in the jail likely did not capture images of the alleged assault, but that it might have captured events leading up to the assault. Thus, Smith infers that the recording might have been useful in impeaching the officers' testimony and challenging their credibility. This argument essentially concedes that the video recording was not materially exculpatory, but only potentially exculpatory. As such, the failure to preserve the evidence did not violate due process unless the officers acted in bad faith in failing to preserve the recording. From Sergeant Hale's testimony, it is clear that the recording was destroyed as part of the ordinary routine at the jail of reusing recording equipment and that a practice of preserving recordings of all assaults at that location would have been cumbersome and time-consuming. There was no evidence of bad faith on the part of the officers. As such, the trial court properly refused to dismiss the case on the ground that the officers had failed to preserve the recording in question. {¶ 11} Smith also claims that his due process rights were violated by the investigating officer's failure to interview inmates who were potential witnesses to the assault. Deputy Jeffrey J. Vest testified that the list of inmates who were in the booking area at the time of the assault, as generated by the jail's tracking system, was likely incomplete. Vest and Deputy Michael Brem, who completed the incident report, explained that the list was likely incomplete because some people in the booking area would be going to or coming from the courts, would not yet have been entered into the computer, or might not be reflected for other reasons. They indicated that there were likely to have been approximately 50 inmates in the booking area at the time of the assault. Brem further testified that inmates are immediately locked down in their cells when an altercation breaks out, making it difficult for an investigating officer to determine who may have originally been in the booking area. He also testified that he did not believe that inmates in the cells could have seen the altercation. Brem testified that, although he had completed the incident report, he was not a detective and it was not within his duties to interview every witness to an assault. {¶ 12} The state has no duty to gather exculpatory evidence. State v.Farris, Clark App. No. 2003 CA 77, 2004-Ohio-5980, ¶ 20. Moreover, it is wholly speculative whether further investigation would have uncovered potentially exculpatory evidence. Thus, although the deputies could have conducted a more thorough investigation, we are unpersuaded that they were obligated to do so. Clearly, if two or three assaults occur in the booking area each day, and there are fifty or more potential witnesses to each assault, it would be unrealistic to expect deputies to interview each potential witness in completing an incident report. Because such interviews involve only potentially exculpatory evidence, Smith would have had to establish bad faith on the part of the officers to prevail on his motion to dismiss. He failed to do so. {¶ 13} The assignment of error is overruled. {¶ 14} The judgment of the trial court will be affirmed. Fain, J. and Grady, J., concur.

2016-07-06 06:42:18.156719+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/Defendant, Richard Mansfield, appeals from his conviction and sentencing in the Medina County Court of Common Pleas. We affirm. {¶ 2} On February 2, 2005, the Medina County Grand Jury indicted Defendant on one count of pandering sexually oriented matter involving a minor (F-4), in violation of R.C. 2907.322(A)(5); two counts of rape with a victim under the age of 13 years (F-1), in violation of R.C.2907.02(A)(1)(b); one count of unlawful conduct with a minor (F-3), in violation of R.C. 2907.04(A)(B)(3); and 16 counts of pandering sexually oriented matter (F-2), in violation of R.C. 2907.322(A)(1). An additional count of pandering was also filed, but was later dismissed as being duplicative. After several unsuccessful defense motions, including motions to suppress and motions to dismiss, Defendant pled no contest to the indictment and was sentenced to 14 years in prison. Defendant timely appealed his conviction and sentence, raising nine assignments of error for review. First Assignment of Error "The Trial Court improperly denied the motion to suppress the admission of evidence obtained through a search warrant on residence because search warrant as demonstrated at hearing was unsupported by probable cause and obtained items not specified or connected to a criminal nexus; and improperly denied suppression of computer CD that was read and obtained from Appellant's residence as there was no proper search warrant authorizing same." Fourth Assignment of Error "The Trial Court improperly denied the Defendant's motion to suppress the evidence obtained from the computer pursuant to search warrant as the search warrant was not signed by the affiant, Detective Foraker." {¶ 3} Defendant asserts that the State did not have probable cause sufficient to obtain a warrant to search his home, which search garnered a computer CD. Defendant's assertion regarding specific evidence obtained pursuant to the search warrants shall be addressed in conjunction with our discussion of Defendant's second and third assignments of error. The probable cause issue and the sufficiency of the affidavits in support of the search warrants shall be discussed here in conjunction with our analysis of Defendant's first and fourth assignments of error. {¶ 4} Two search warrants were executed in this case although which warrant is at issue vis-à-vis each assignment of error is unclear. The first warrant was issued on January 12, 2005, by Judge Collier (the "Collier Warrant"). The second warrant was issued on January 13, 2005, by Judge Kimbler (the "Kimbler Warrant"). It was the Collier warrant by which the State obtained the CD and computer evidence, and the Kimbler Warrant, that granted the State the right to view the evidence. A hearing was held related to Defendant's motions to suppress evidence obtained by the search warrants on November 2, 8, 21, and 30, 2005. The trial court denied all of Defendant's motions. {¶ 5} An appellate court's review of a ruling on a motion to suppress evidence presents a mixed question of law and fact. State v. Long (1998), 127 Ohio App. 3d 328, 332, 713 N.E.2d 1. ` "In a hearing on a motion to suppress evidence, the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.'" State v. Hopfer (1996),112 Ohio App. 3d 521, 548, 679 N.E.2d 321, appeal not allowed (1996),77 Ohio St. 3d 1488, quoting State v. Venham (1994), 96 Ohio App. 3d 649, 653,645 N.E.2d 831. Accordingly, "[a]n appellate court must review the trial court's findings of historical fact only for clear error, giving due weight to inferences drawn from those facts by the trial court. The trial court's legal conclusions, however, are afforded no deference, but are reviewed de novoT State v. Russell (1998), 127 Ohio App. 3d 414, 416,713 N.E.2d 56, citing Ornelas v. United States (1996), 517 U.S. 690,698-699, 134 L. Ed. 2d 911. (Emphasis sic). {¶ 6} While a motion to suppress evidence under the Fourth Amendment is reviewed using the standard set forth in Ornelas, Defendant's brief asserts that the trial court's finding of probable cause was improper and the warrant invalid. "In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by [the trial court] * * *, [the] appellate court should [not] substitute its judgment for that of the [trial court] by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant. Rather, the duty of a reviewing court is simply to ensure that the [trial court] had a substantial basis for concluding that probable cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, trial and appellate courts should accord great deference to the [trial court's] determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant. (Illinois v. Gates (1983), 462 U.S. 213, * * * followed.)" State v. Thymes, 9th Dist. No. 22480, 2005-Ohio-5505, at 124, quoting State v. George (1989), 45 Ohio St. 3d 325, 544 N.E.2d 640, paragraph two of the syllabus. See, also, State v. Jordan, 101 Ohio St. 3d 216, 2004-Ohio-783, at 138. {¶ 7} The George Court also stated: "In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, `the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." George, at paragraph one of the syllabus. (External citation omitted.) {¶ 8} Defendant makes only a bald argument that the affidavit for the Collier search warrant was not supported by probable cause, asserting that there was "no independent evaluation of the witnesses supporting the search warrant, nor their backgrounds, nor their veracity for truthfulness." Defendant asserts the Kimbler search warrant was improper because Detective Foraker, who obtained the warrant, did not sign the supporting affidavit. We will discuss each warrant in turn. A. The Collier Warrant {¶ 9} This Court notes that Defendant's argument regarding the independent evaluation of the witnesses, including their backgrounds and veracity, is waived, as this argument was not raised before the trial court in the motion to suppress. ` "A fundamental rale of appellate review is that a reviewing court will not consider a claimed error that a party failed to bring to the trial court's attention at a time when it could have been corrected.'" O'Bryon v. Poff, 9th Dist. No. 02CA0061, 2003-Ohio-3405, at ¶ 14 quoting Bohlmann v. Cox (Nov. 1, 1995), 9th Dist. No. 17166. "If an issue was not raised at the appropriate time in the trial court, the party has waived the right to contest the issue on appeal." Id. {¶ 10} Here, Defendant did not ask any questions of Detective Foraker relative to the probable cause issue at the suppression hearing and only raised the issue superficially and without analysis in his motion to suppress, stating that "the affidavit does not contain any specific facts to support probable cause. Further, based on the facts as contained in the affidavit, no reasonably well-trained officer could have concluded that there were sufficient facts to warrant a finding of probable cause." {¶ 11} Even so, Detective Foraker testified that he sought the warrant based on information from the victim. Where the victim in a case is the source of information to the police, he is presumed to be reliable.State v. Yeagley (Aug. 28, 1996), 9th Dist. No. 96CA0022, at *2. We find there was sufficient probable cause to support the Collier Warrant. B. The Kimbler Warrant. {¶ 12} Defendant asserts that there was insufficient probable cause to support the Kimbler warrant because the officer that signed the search warrant (Detective Foraker) did not sign the affidavit in support of the search warrant. As with most of his assignments of error, Defendant fails to cite any authority for his proposition. In his motion to suppress the Kimbler Affidavit, Defendant states only that "[t]he affidavit presented in support of the search warrant is fatally defective in that the affiant never signed the affidavit." Once again, Defendant cites no authority for this proposition. {¶ 13} An appellant has the burden on appeal. See App.R. 16(A)(7); Loc.R. 7(B)(7). "It is the duty of the appellant, not this court, to demonstrate his assigned error through an argument that is supported by citations to legal authority and facts in the record." State v.Taylor (Feb. 9, 1999), 9th Dist. No. 2783-M, at *3. See also, App.R. 16(A)(7); Loc.R. 7(B)(7). Pursuant to App.R. 16(A), an appellant's brief shall include the following: "(7) An argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." See, also, Loc.R. 7(B)(7). In addition to reflecting the requirements specified in App.R. 16(A)(7), Loc.R. 7(B)(7) provides that "[e]ach assignment of error shall be separately discussed and shall include the standard of review applicable to that assignment of error[.]" {¶ 14} "It is not the function of this court to construct a foundation for [an appellant's] claims; failure to comply with the rales governing practice in the appellate courts is a tactic which is ordinarily fatal."Kremer v. Cox (1996), 114 Ohio App. 3d 41, 60, 682 N.E.2d 1006. Moreover, it is not the duty of this Court to develop an argument in support of an assignment of error if one exists. Cardone v. Cardone (May 6, 1998), 9th Dist. Nos. 18349 and 18673, at *8. As we have previously held, we will not guess at undeveloped claims on appeal. See McPherson v. GoodyearTire Rubber Co., 9th Dist. No. 21499, 2003-Ohio-7190, at 4|31, citingElyria Joint Venture v. Boardwalk Fries, Inc. (Jan. 3, 2001), 9th Dist. No. 99CA007336. {¶ 15} Without authority, law and analysis in support of Defendant's proposition that the Kimbler Warrant is invalid because Detective Foraker did not sign the affidavit, we find that Defendant did not meet his burden on appeal vis-à-vis whether there was sufficient probable cause to support the Kimbler Warrant. {¶ 16} Even so, since Detective Foraker orally swore, under oath, to the veracity of the statements contained in the affidavit, Defendant received all of his constitutional guarantees and any error was not prejudicial. State v. Wilmoth (1986), 22 Ohio St. 3d 251, 264,490 N.E.2d 1236. A procedural defect will not result in suppression where a neutral judge issues the search warrant after the receipt of a reliable and credible affidavit and sworn testimony in support thereof. See State v.Shaulis (Feb. 20, 2002), 9th Dist. No. 01CA0044, at *2. The trial court similarly found, referencing the good faith exception for search warrants. {¶ 17} Defendant's first and fourth assignments of error are overruled. Second Assignment of Error "The Trial Court improperly denied the motion to suppress the e-mail dated January 12, 2005 between 11:56 a.m. and 12:35 p.m. as well as to dismiss Counts 5 through 21 of the indictment." Third Assignment of Error "The Trial Court improperly denied the motion to suppress the oral statements given by Defendant in the captioned matter as the Defendant was not properly advised of his Miranda rights nor did he waive his Miranda rights." {¶ 18} Defendant asserts that the trial court improperly denied motions to suppress the following evidence obtained from his home during execution of the Collier Warrant: (1) computer CD; (2) notebook; (3) KY Jelly; (4) e-mails dated January 12, 2005 between 11:56 a.m. and 12:35 p.m.; (5) his oral statements; and (6) computer evidence. Defendant asserts that these items were obtained in excess of the scope of the search warrant and/or without proper Miranda warnings. We will address Defendant's second and third assignments of error collectively as they concern similar issues of law. We also note that we will simultaneously discuss evidence seized as set forth in Defendant's first assignment of error. {¶ 19} We begin by noting that items one through five were obtained by police officers pursuant to the Collier Warrant. Item six was viewed by police officers pursuant to the Kimbler Warrant. Items one through three are addressed by Defendant in his first assignment of error. Error is assigned vis-à-vis items four and five in Defendant's second and third assignments of error, respectively. {¶ 20} We have previously set forth in our discussion of Defendant's first and fourth assignment of error the appropriate standard of review. We will now discuss each piece of evidence that Defendant asserts the trial court erroneously failed to suppress. A. Computer CD, KY Jelly and Notebook {¶ 21} Defendant asserts nothing in the search warrant "warranted police removing a notebook from [Defendant's] residence nor KY Jelly, nor the CD from [Defendant's] residence." In his motion to suppress, Defendant asserted that the warrant only allowed seizure of "[a]ny type of pornography depicting child pornography, videos, pictures and magazines" and the KY jelly and citations from the notebook were outside the scope of the warrant. The trial court denied Defendant's motions to suppress finding the motions not well taken. {¶ 22} The items to be located and seized pursuant to a search warrant must be identified with sufficient particularity. See State v.McGettrick (1988), 40 Ohio App. 3d 25, 29, 531 N.E.2d 755. "The specificity required varies with the nature of the items to be seized."State v. Overholt, 9th Dist. No. 02CA0108-M, 2005-Ohio-3500, at ]fl3, citing McGettrick, at 29. "In determining whether a warrant is specific enough, the key inquiry is whether the warrant could reasonably have described the items more precisely." Overholt, at ]fl4, citing State v.Benner (1988), 40 Ohio St. 3d 301, 307, 533 N.E.2d 701. It is important to note that the prohibition against general warrants will not prevent the issuance of a broad or generic listing of items to be seized if the circumstances do not allow for greater specificity and detail. State v.Dalpiaz, 151 Ohio App. 3d 257, 2002-Ohio-7346, 127, citing United Statesv. Wicks (C.A.10, 1993), 995 F.2d 964, 973. {¶ 23} In the present case, the warrant authorized the seizure of computers, computer disk, computer related equipment (CD's, CD Rom, computer programs) any type of pornography depicting child pornography, videos, pictures, and magazines. The warrant also allowed seizure of any and all contraband found within the residence. The warrant was based upon an interview Detective Foraker had with a juvenile who stated that he had been sexually abused by Defendant and that the sexual abuse involved a computer at Defendant's residence. {¶ 24} Thus, the warrant limited the search to the particular circumstances of the case and the nature of the alleged stolen items. All the items identified were connected to the investigation of sexual abuse and/or contraband. R.C. 2901.01 states that "'[Contraband' means any property described in the following categories: "(a) Property that in and of itself is unlawful for a person to acquire or possess; (b) Property that is not in and of itself unlawful for a person to acquire or possess, but that has been determined by a court of this state, in accordance with law, to be contraband because of its use in an unlawful activity or manner, of its nature, or of the circumstances of the person who acquires or possesses it, including, but not limited to, goods and personal property described in division (D) of section 2913.34 of the Revised Code; * * * (h) Any personal property that has been, is being, or is intended to be used in an attempt or conspiracy to commit, or in the commission of, any offense or in the transportation of the fruits of any offense; [and] * * * (j) Any computer, computer system, computer network, computer software, or other telecommunications device that is used in a conspiracy to commit, an attempt to commit, or the commission of any offense, if the owner of the computer, computer system, computer network, computer software, or other telecommunications device is convicted of or pleads guilty to the offense in which it is used." {¶ 25} The computer CD, KY jelly and notebook containing a list of pornographic web cites were properly seized pursuant to the Collier Warrant. B. Oral Statements {¶ 26} Defendant asserts that his admissions made to Detective Foraker during the execution of the Collier Warrant were improper as it was clear that Defendant did not understand the Miranda warnings. {¶ 27} On November 2, 2005, the trial court held a hearing on Defendant's motion to suppress statements he made to Detective Foraker on January 12, 2005, during the execution of the Collier Warrant. The statements include an admission that Defendant engaged in oral sex with the juvenile victim. Detective Foraker testified that he verbally mirandized Defendant when he first began speaking to him. He then decided to tape the interview and mirandized Defendant presenting him with a Miranda waiver form, which Defendant signed. {¶ 28} Defendant asserts that his response to the verbal Miranda warning and Detective Foraker's inquiry as to whether he would like to waive his rights demonstrates he did not understand his rights. When asked if he would like to waive his rights to an attorney, Defendant stated: "I think so." {¶ 29} The first inquiry we must make is whether or not Detective Foraker was required to advise Defendant of his Miranda rights before engaging him in conversation. Pursuant to Miranda v. Arizona (1966),384 U.S. 436, 471-72, 16 L. Ed. 2d 694, once police begin a custodial interrogation, they must use procedures to warn the person in custody of his rights (i.e., "Miranda warnings"). The duty to provide Miranda warnings is only invoked when both custody and interrogation coincide.State v. Wiles (1991), 59 Ohio St. 3d 71, 83, certiorari denied (1992),506 U.S. 832, 121 L. Ed. 2d 59. "Custody" for purposes of entitlement to Miranda rights exists only where there is a ` "restraint on freedom of movement' of the degree associated with a formal arrest." California v.Beheler (1983), 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, quoting Oregon v.Mathiason (1977), 429 U.S. 492, 495, 50 L. Ed. 2d 714. "Interrogation" is defined as ` "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.'" State v. Knuckles (1992), 65 Ohio St. 3d 494, 496,605 N.E.2d 54, quoting Rhode Island v. Innis (1980), 446 U.S. 291, 301,64 L. Ed. 2d 297. {¶ 30} "Whether a suspect is in custody depends on the facts and circumstances of each case." State v. Dunn, 9th Dist. No. 04CA008549,2005-Ohio-1270, at ¶ 24, citing State v. Warrell (1987),41 Ohio App. 3d 286, 287, 534 N.E.2d 1237. The test is ` "whether, under the totality of the circumstances, a "reasonable person would have believed that he was not free to leave.'"" Dunn, at 124, quoting State v. Gumm (1995),73 Ohio St. 3d 413, 429, 653 N.E.2d 253, certiorari denied (1996),516 U.S. 1177, 134 L. Ed. 2d 221, quoting United States v. Mendenhall (1980),446 U.S. 544, 554, 64 L. Ed. 2d 497. {¶ 31} In the present case, Defendant answered his door when the police arrived to execute the Collier Warrant. Detective Foraker gave Defendant a copy of the Collier Warrant and then moved to the living room to engage in conversation with Defendant. Defendant never told the detective he did not want to talk to him and he was never placed in custody. Instead, Defendant voluntarily gave his statement to the police and after the police were finished searching the home, they left leaving Defendant at home. We conclude that the circumstances of this case are such that Defendant was neither in custody nor under interrogation, and therefore Miranda warnings were not required. {¶ 32} That being said, Detective Foraker did give Defendant verbal Miranda warnings and Defendant signed a Miranda waiver. That Defendant indicated he thought he understood the verbal warnings is not sufficient to find Defendant's waiver of his Miranda rights to be improper. Defendant's response was affirmative in nature and was followed up by his signature on a written waiver form. We find the trial court's denial of Defendant's motion to suppress oral statements given to police on January 13, 2005 to be without any clear error and in accordance with Ohio law. C. January 12, 2005 E-Mails. {¶ 33} Defendant next asserts that certain e-mails between himself and Detective Foraker (acting under cover), dated January 12, 2005, should be suppressed as being sent by the detective to Defendant without a Miranda warning first being given. {¶ 34} Defendant cites no authority for this proposition. As set forth above, Miranda warnings are only required to be given "when both custody and interrogation coincide." Wiles, at 83. Here, even if Detective Foraker's exchange with Defendant could be deemed an interrogation, and Defendant has supplied no authority that it could be, Defendant was clearly not in custody. He was in his own home on his personal computer. {¶ 35} We find the trial court's denial of Defendant's motion to suppress the January 12, 2005 emails to be without any clear error and in accordance with Ohio law. {¶ 36} Given our findings as set forth above, Defendant's second and third assignments of error are overruled. Fifth Assignment of Error "The Trial Court erred because it denied the motion to dismiss due to the Government's actions and position against proposed expert Dean Boland and their current position on his testimony in court." Sixth Assignment of Error "The Trial Court improperly denied the Defense's efforts to establish Dean Boland as an expert in the captioned matter because the charge warrants an expert to establish if or not the State can prove the necessary element of the child being actual children in pornography." {¶ 37} We will discuss Defendant's fifth and sixth assignments of error together as the same law and analysis apply. The errors assigned in Defendant's fifth and sixth assignments of error are entirely unclear and are supported by very little law and/or argument. While the fifth assignment of error purports to challenge the trial court's denial of Defendant's Motion to Dismiss, both it and Defendant's sixth assignment of error actually challenge the trial court's order rendering defense expert, Dean Boland, unqualified to offer expert testimony at trial on behalf of Defendant. {¶ 38} "Generally speaking, a no contest plea waives all nonjurisdictional defects to a felony conviction and leaves open for review only the sufficiency of the indictment." State v. Palm, 9th Dist. No. 22298, 2005-Ohio-1637, at ¶ 13, citing State v. Cianci (June 11, 1986), 9th Dist. No. 3947, at *4. See City of Columbus v. Sullivan (1982), 4 Ohio App. 3d 7, 9, 446 N.E.2d 485. Moreover, while Crim.R. 12(1) does allow for an appeal of improper pretrial rulings where judgment was entered on a no contest plea, such appeal may only relate to legal defenses as a no contest plea is an admission or a waiver of objection to all facts as contained in the indictment. State v.Moore, 9th Dist. No. 21182, 2003-Ohio-244, at 18. {¶ 39} To utilize the "savings provision of Rule 12(1), however, a trial court's ruling must be upon a matter that is a proper subject of a pretrial motion." State v. Banks (Sep. 7, 1994), 9th Dist. No. CA-2256-M, at *3; Columbus, at 9-10. Crim.R. 12(C) provides that, "[p]rior to trial, any party may raise by motion any defense, objection, evidentiary issue, or request that is capable of determination without the trial of the general issue." Crim.R. 12(C). {¶ 40} Here, the trial court ruled, after conducting a voir dire of Mr. Boland, that he would not be permitted to testify at trial. Such finding "would have necessarily been based on a determination that the witness's anticipated testimony would be immaterial or irrelevant, or that its relevance would be outweighed by its prejudicial effect."Banks, at *3. "Such a determination cannot be properly made prior to trial." Id. "Rather, it must be made during trial, based upon the specific testimony proffered and the record as it exists at the time of the proffer." Id. "A pretrial admissibility ruling of the type defendant claims occurred in this case would be premature." Id "In order to preserve the issue of the admissibility of a witness's testimony for appeal, the proponent of that evidence would have to make an actual proffer of the testimony at trial." Id.; Columbus, at 9-10. Accordingly, the trial court's ruling as to the admissibility of Mr. Boland's testimony was not a proper subject for a pretrial motion within the meaning of Crim.R. 12(B) "and, therefore, was not saved for review on appeal by Rule 12[I] of the Ohio Rules of Criminal Procedure." Defendant's fifth and sixth assignments of error are overruled. Seventh Assignment of Error "The trial court improperly denied the motion to dismiss the indictments against [Defendant] regarding the alleged pornographic computer video streams concerning minor evidence against [Defendant] as he was unable to determine the actual video streams contained actual minors." {¶ 41} Defendant's seventh assignment of error is unclear. It purports to assert that the trial court improperly denied Defendant's motion to dismiss the indictments against him related to the pornographic video streams (counts five through 21) because Defendant was unable to determine if the actual video streams contained actual minors. Defendant then cites to Ashcroft in support of his right to possess digital images that appear to be minors engaged in sexual conduct where the images are not actual minors. {¶ 42} While a motion to dismiss is a pretrial motion that can be preserved for appeal even where a Defendant has pled no contest as set forth in Crim.R. 12(1), "a no-contest plea does not preserve for appeal a trial court's ruling on a pretrial motion that requests an advance ruling on the materiality and relevancy of evidence." State v.Lewis, 164 Ohio App. 3d 318, 2005-Ohio-5921, at |8, citingColumbus, supra. Here Defendant seems to be asserting that, because he could not determine if the videos contained images of actual children, then the State similarly would not be able to determine if the images contained actual children and, therefore, would not be able to prove its case. The State, however, was prepared to offer the expert testimony of a computer forensic examiner. Defendant's seventh assignment of error is based on what Defendant believes to be an erroneous advance ruling on the materiality and relevancy of evidence. Accordingly, any error was waived when Defendant pled no contest. Defendant's seventh assignment of error is overruled. Eighth Assignment of Error "The trial court erred because it failed to stay the proceedings or grant the continuance of the defense or grant Defendant's request for a dismissal in the captioned matter because a case of similar kinds of images, was stayed in this court by the Prosecutors [sic] office because a decision had been issued out of a different jurisdiction that concerned child pornography questions involving children and establishing that children were actual children on videos which was appealed to the Ohio Supreme Court, and this Prosecutor's office in that case asked that the case be stayed pending resolution of that sister appellate district case's resolution in the Ohio Supreme Court." {¶ 43} Defendant asserts that the trial court erred by denying his motion to stay proceedings or for a continuance or to dismiss pending resolution of the appeal of a case captioned State v. Tooley, 11th Dist. No. 2004-P-0064, 2005-Ohio-6709, in which the Portage County trial court found two out of three child pornography statues were unconstitutional. {¶ 44} Defendant has provided no authority to support his assertion that the trial court should have dismissed this action based on an unrelated case pending in another appellate district or as to why the trial court was required to stay the instant action pending the resolution of an unrelated case pending in another appellate district. A mere assertion that the case should have been stayed because it involved "very similar issues" is not sufficient. {¶ 45} App. R. 16(A)(7) states: "The appellant shall include in its brief * * * "(7) An argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." Loc.R. 7(B)(7) requires that an appellant's brief include the following: "Argument and law. The argument shall contain the contentions of the appellant with respect to the assignments of error and the supporting reasons with citations to the authorities and statutes on which the appellant relies." (Emphasis added.) {¶ 46} This court has previously held that a defendant has the burden of affirmatively demonstrating the error of the trial court on appeal.State v. Cook, 9th Dist. No. 20675, 2002-Ohio-2646, at |27. "Moreover, `[i]f an argument exists that can support this assignment of error, it is not this court's duty to root it out.'" Id., quoting Cardone v.Cardone (May 6, 1998), 9th Dist. Nos. 18349 and 18673, at 18. See, also,State v. Patton, 9th Dist. No. 02CA0113-M, 2003-Ohio-4030, at 115;State ex rel. Rothal v. Smith, 9th Dist. Nos. 20938 and 20950, 2002-Ohio-7328, at 190; State v. McAdory, 9th Dist. No. 21454,2004-Ohio-1234, at 132; State v. Baker, 9th Dist. No. 21414, 2003-Ohio-4637, at 115; State v. Stuck, 9th Dist. No. 02CA0071-M, 2003-Ohio-1596, at 18. {¶ 47} Defendant's eighth assignment of error is overruled. Ninth Assignment of Error "The Trial Court improperly sentenced Appellant to 14 years because that sentence violated the mandates of State v. Foster, as the sentence relies upon R.C. 2929.14(E)(4), the requisite factual findings for consecutive sentences have been deemed unconstitutional." {¶ 48} Defendant argues that his sentence, imposed pursuant to R.C.2929.14(B), is unconstitutional and void and that his case, therefore, must be remanded to the trial court for re-sentencing pursuant toState v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856. Defendant asserts that the court made factual findings at the sentencing hearing in violation of Foster. At the sentencing hearing, defense counsel made the following objection: "You Honor, just for the record, I would like to enter an objection to the sentence. It is more than the mandatory minimum on the terms, and also the consecutive." {¶ 49} This Court has held that an appellant, who is sentenced afterBlakely v. Washington (2004), 542 U.S. 296, 159 L. Ed. 2d 403, waives the constitutional challenge to his sentence if he does not preserve the argument at the trial court level. Specifically, we have stated that: "[T]he Ohio Supreme Court addressed Ohio sentencing guidelines in [State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856]. The Court also addressed the guidelines in State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855. This Court interpreted and applied Foster and Mathis in State v. Dudukovich, 9th Dist. No. 05CA008729, 2006-Ohio-1309. In Dudukovich, we found that while pursuant to Foster portions of Ohio's sentencing guidelines were unconstitutional, Dudukovich did not properly preserve his constitutional challenge for appeal. Dudukovich at ¶ 21. We held that an appellant, if sentenced after Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, waives constitutional challenge to his sentence if he does not preserve the argument in the trial court. Id. at ¶¶ 22 and 24. This Court questioned `whether [the] Defendant raised a specific challenge to the constitutionality of Ohio's sentencing statutes in the trial court.' Id. at ¶ 24. We found that `[a]s Defendant failed to raise any objection below, let alone an objection specifically raising a constitutional challenge, he is precluded from raising such an argument for the first time on appeal. Id. ` " State v. Williams, 9th Dist. No. 05CA008804, 2006-Ohio-4310, at ¶ 34. {¶ 50} Based on our holding in Dudukovich, we find that Defendant failed to preserve his constitutional challenge for appeal. SeeState v. Duffield, 9th Dist. No. 22634, 2006-Ohio-1823, at ¶ 72-75 (holding that when appellant did not specifically object to the constitutionality of a statute after sentencing in trial court he waived that argument on appeal). The record shows that Defendant was sentenced on January 30, 2006, well after Blakely had been decided1 and beforeFoster was decided.2 Further, a review of the record indicates that at no time during the sentencing proceeding did Defendant object to the constitutionality of his sentence. See Williams at ¶ 35. Accordingly, because "one must object to preserve errors for review," we find that Defendant is precluded from arguing the sentencing statute's constitutionality on appeal. See Id. Accordingly, Defendant's ninth assignment of error lacks merit and we overrule it. {¶ 51} Each of Defendant's assignments of error is overruled and the judgment of the trial court is affirmed. Judgment Affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to ran. 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. BOYLE, J. CONCURS CARR, J. CONCURS IN JUDGMENT ONLY 1 Blakely was decided on June 24, 2004. 2 Foster was decided on February 27, 2006.

2016-07-06 06:42:18.663195+00

DECISION AND JUDGMENT {¶ 1} Appellants appeal a summary judgment issued by the Lucas County Court of Common Pleas in favor of an attorney and his law firm in a suit alleging legal malpractice. For the reasons that follow, we affirm. *Page 2 {¶ 2} Appellants are Future Lawn, Inc., a Toledo landscaping firm, and its principals, Michael E. and Gregory J. Kott. In 1995, appellants retained the services of the law firm of Eastman and Smith ("Eastman") to pursue a claim against a former joint venture partner. Appellants entered into a fee agreement with the firm wherein Future Lawn would pay one-half of the negotiated billed hourly rate, with payment of the remainder personally guaranteed by the Kotts, pending the outcome of the suit. {¶ 3} When appellants were unable to meet the payment schedule in the initial fee agreement, Eastman suggested a modified arrangement. The new agreement executed by appellants provided that appellants would pay the lesser of a 30 percent contingent fee or 125 percent of incurred fees on conclusion of the suit. In the new agreement the Kotts were released from their personal guarantees. {¶ 4} As this arrangement proceeded, appellants employed Eastman in other affairs, including the acquisition of real estate adjacent to Future Lawn's west Toledo facilities. In the process, the firm reviewed and approved an environmental report on the acquired property. {¶ 5} In 1997, appellants' joint-venture claim was resolved with a settlement to appellants in excess of $1 million to be paid in five installments over three years. In conformity with the modified the agreement, Eastman prepared a fee statement premised on fees plus 25 percent, the lesser of the computational options. *Page 3 {¶ 6} Following the settlement, appellants disputed numerous charges on Eastman's statements. On May 16, 1997, Eastman advised appellants that they were severing the attorney/client relationship. Following this, appellants engaged Jack Brady of Brady, Coyle and Schmidt to act as their general counsel. {¶ 7} Brady was sometime later directed to "investigate the issue of [Eastman's] fees for legal services" agreement modification. On April 22, 1998, Brady wrote Eastman, requesting a meeting. Negotiations continued over the next few months to no avail. On August 7, 1998, Brady requested that Eastman return the 25 percent negotiated fee premium. Eastman refused. {¶ 8} As the fee dispute continued, appellants were advised by the U.S. Army Corps of Engineers that their use of the property purchased in 1996 violated federal environmental regulations concerning wetlands. Appellants eventually absolved themselves from this violation by paying a $50,000 "in lieu" fee to a local environmental agency. {¶ 9} Appellants sought to recoup their loss from the wetlands fee from the firm which had authored the report that cleared the land from wetlands issues and from Eastman, whose lawyers had approved the report. To accomplish this, Jack Brady, referred the matter to someone experienced in legal malpractice cases, appellee Harold M. Steinberg, and his law firm, appellee Wagoner and Steinberg Ltd. *Page 4 {¶ 10} On November 23, 1999, appellees, on behalf of appellants, brought suit against the author of the wetlands report and Eastman. On January 25, 2000, appellee Steinberg amended the complaint, adding a claim that Eastman had impliedly coerced appellants to modify their fee agreement, then padded the bill. Eastman answered, denying both allegations. {¶ 11} Eventually, Eastman moved for summary judgment on the excessive billing claim, arguing that since the attorney/client relationship between the firm and appellants ended on May 16, 1997, and the excess fee claim was not filed until 2000, appellants had missed the one-year statute of limitations on legal malpractice. Appellants, through appellee Steinberg, responded that the fee dispute was not a malpractice claim, but based on contract with a longer statute of limitations. The trial court rejected appellants' argument and granted Eastman partial summary judgment on the fees dispute. Following this, in September, 2002, the parties negotiated a settlement on the wetlands issue. At the end, appellants executed a "global settlement," releasing Eastman from its liability for any event that occurred prior to the date of the agreement, including the fees dispute. {¶ 12} As this was unfolding, appellants parted company with Jack Brady and acquired other counsel. On May 30, 2000, Brady sued appellants for unpaid legal fees. Appellants responded with a separate suit against Brady, alleging that he had committed malpractice by failing to bring suit against Eastman on the excessive fees claim within the statute of limitations. *Page 5 {¶ 13} The record with respect to these events is not wholly clear, but it appears that Brady moved for summary judgment on the malpractice claim, arguing that appellants had not brought suit within the one-year statute of limitations. Brady prevailed on this issue and on his fees claim. The matter was affirmed on appeal. Kott Ent, Inc. v. Brady, 6th Dist. No. L-03-1324, 2004-Ohio-7160, ¶ 77. {¶ 14} On April 2, 2004, appellants sued appellees, alleging that appellees had committed malpractice by failing to timely bring to appellants' attention that Brady had committed malpractice by failing to file a malpractice suit within the statute of limitations on the excessive fees claim against Eastman.1 {¶ 15} Following discovery, appellees moved for summary judgment, arguing that appellants failed to present evidence sufficient to create a genuine issue of material fact with respect to any of the elements of legal malpractice. According to appellees, Harold Steinberg's deposition testimony that he was expressly retained to pursue a malpractice claim against Eastman, therefore, he had no duty to find potential claims of any sort against Jack Brady, was undisputed. Absent duty there can be no breach. Moreover, appellants could not establish a causal connection between any act or omission by appellees and injury, because the Eastman modified contract was a valid novation, negating the validity of any excessive fee claim. *Page 6 {¶ 16} Appellants filed a memorandum in opposition to appellees' motion, but the trial court concluded that the unrefuted evidence before the court established that appellees had been engaged only to pursue a malpractice claim against Eastman and had no duty to seek or bring to appellants' attention claims outside that scope. On these conclusions, the court granted appellees' motion for summary judgment. {¶ 17} From this judgment, appellants now bring this appeal, setting forth the following three assignments of error: {¶ 18} "Assignment of Error No. 1 {¶ 19} "The Trial Court committed prejudicial error by granting Defendants' Motion for Summary Judgment when there remained genuine issues of material fact concerning Defendants' duty to inform Plaintiffs of the existence of a claim for relief through which they could recover excessive fees charged by Eastman Smith and where Defendants were not entitled to judgment as a matter of law. {¶ 20} "Assignment of Error No. 2 {¶ 21} "The Trial Court committed prejudicial error in concluding the parties had limited the scope of representation to a suit against Eastman Smith to recover for excessive fees charged by Eastman Smith. {¶ 22} "Assignment of Error No. 3 {¶ 23} "The Trial Court committed prejudicial error in failing to find that Defendants breached a duty to inform Plaintiffs of the existence of a claim against the *Page 7 Brady Firm relating to the harm for which Plaintiffs sought Defendants' services and in finding that there was no breach of duty as a matter of law." {¶ 24} We shall discuss appellants' assignments of error together. {¶ 25} Appellate review of a summary judgment is de novo. We independently review the proceedings, employing the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts. (1989),61 Ohio App. 3d 127, 129. The motion may be granted only when it is demonstrated: {¶ 26} "* * * (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) 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, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 67, Civ. R. 56(C). {¶ 27} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v.Wheeler (1988), 38 Ohio St. 3d 112, syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St. 3d 280, 293. When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleading, but must respond with specific facts showing that there is a genuine issue of material fact. Civ. R. 56(E); Riley v. Montgomery *Page 8 (1984), 11 Ohio St. 3d 75, 79. A "material" fact is one which would affect the outcome of the suit under the applicable substantive law.Russell v. Interim Personnel, Inc. (1999), 135 Ohio App. 3d 301, 304;Needham v. Provident Bank (1996), 110 Ohio App. 3d 817, 826, citingAnderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248. {¶ 28} "To establish a cause of action for legal malpractice based on negligent representation, a plaintiff must show (1) that the attorney owed a duty or obligation to the plaintiff, (2) that there was a breach of that duty or obligation and that the attorney failed to conform to the standard required by law, and (3) that there is a causal connection between the conduct complained of and the resulting damage or loss."Vahila v. Hall, 77 Ohio St.3d 421, 1997-Ohio-259, syllabus. {¶ 29} The trial court in this matter concluded that appellees owed appellants no duty to inform them of a possible claim against Brady for missing the statute of limitations on the fee dispute. Initially, appellants argue that summary judgment was inappropriate because they presented an affidavit from a legal expert who opined that, on the facts presented, appellees had an obligation to make such a disclosure, and that appellees breached that duty. At the least, appellants insist, this affidavit sets up a question of fact which would preclude summary judgment. {¶ 30} "The existence of a duty in a negligence action is a question of law for the court to determine." Mussivand v. David (1989),45 Ohio St. 3d 314, 318. It is the function of the court to determine whether, "* * * the law imposes upon the defendant *Page 9 any legal duty to act or to refrain from acting for the protection of the plaintiff. This decision is always for the court." Restatement of the Law 2d, Torts (1965) 153, Section 328 B, Comment e. Accord, Keeton, Prosser and Keeton on Torts (1984) 236. Consequently, the submission of "expert" opinion on this issue is neither dispositive, nor gives rise to a factual dispute. {¶ 31} Next appellants insist that while an attorney may limit the scope of representation to specific legal matters, such limitations are permissible only after consultation with the client and then only with the consent of the client. Appellants maintain that the record contains no evidence that they and appellees consulted about limiting appellees' representation, nor that they consented to such limitation. {¶ 32} Appellants find support for their proposition that consultation and consent are required antecedent to limiting representation in several cases from foreign jurisdictions, which appellants concede are for the most part premised on the Model Rules of Professional Conduct.2 Even though the Model Rules were not adopted in Ohio *Page 10 until after the time relevant here, appellants argue that EC 7-8 of the Ohio Code of Professional Responsibility should dictate the same result. {¶ 33} "An attorney's duty to his or her client exists in relation to the scope of representation sought by the client and undertaken by the attorney." Advanced Analytics Labs. v. Kegler, Brown, Hill Ritter, 148 Ohio App. 3d 440, 541, 2002-Ohio-3328, ¶ 34, citingPractical Offset, Inc. v. Davis (1980), 83 Ill. App. 3d 566. Unlike the ethical provisions in the foreign cases appellants cite, the Ohio Code of Professional Responsibility, which was effective in these matters, contains no express requirement of client consultation before limiting the scope of representation. Neither have appellants provided to us any Ohio authority giving rise to such a requirement. They only argue that EC 7-8's directive that "A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations" impliedly permits such a requirement and invite us to adopt this view. We must decline. Accordingly, we must hold that, prior to the adoption of the Model Rules, Ohio rules set no requirement that an attorney and client consult prior to limitation of the scope of representation. {¶ 34} This is a key point because the deposition testimony of appellee Harold Steinberg that the scope of his representation of appellants was expressly limited to handling a suit against Eastman and Smith is unrefuted. Thus appellees had no duty to look for or to bring to appellants' attention causes of action against any other individual *Page 11 or entity. Consequently, the trial court's conclusion that appellees had no duty with respect to a suit against Brady is supported by the record. {¶ 35} We might also point out that appellees' argument that appellants could show no causative relationship between breach and damages has some merit. Appellees viewed the fee dispute with Eastman as being a claim on written contract, not malpractice. The trial court in the Eastman suit did not agree, but its ruling was never tested because appellants released Eastman of all claims, including the fee dispute. Malpractice is the "`professional misconduct of * * * attorneys.' Such professional misconduct may consist of either negligence or of breach of the contract of employment." Muir v. Handler Est. Management Co. (1982)4 Ohio App. 3d 89, 90, quoting Richardson v. Doe (1964),176 Ohio St. 370, 372. It would seem arguable that a fee dispute, whether with a hospital or a law firm, is an action outside the professional relationship and should not be governed by the same strictures applicable to the exercise of professional judgment. In any event, appellants settled the underlying claim, arguably waiving any further ancillary action. {¶ 36} Accordingly, all of appellants' assignments of error are found not well-taken. {¶ 37} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal *Page 12 pursuant to App. R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County. JUDGMENT AFFIRMED. A certified copy of this entry shall constitute the mandate pursuant to App. R. 27. See, also, 6th Dist. Loc. App. R. 4. Mark L. Pietrykowski, P.J., Arlene Singer, J., Thomas J. Osowik, J. CONCUR. 1 Appellants dismissed the initial complaint, pursuant to Civ. R. 41(B), on July 26, 2004, and refiled the complaint on July 24, 2005. 2 Lerner v. Laufer (N.J. App. 2003), 819 A.2d 471, 483 (New Jersey ethics rule expressly requires client consultation prior to limiting scope of representation.); Atty Grievance Comm. of Maryland v. Ward (Md.App. 2006), 904 A.2d 477, 481, fn 3 (Maryland ethics rule expressly requires consultation.); Sengupta v. Wickwire (Alaska 2005),124 P.3d 748, 754, fn 38 (Alaska ethics rules expressly require consultation.);Machado v. Statewide Grievance Comm. (Conn.Super. 2004), 38 Conn. L. Rptr. 156 (Scope may be limited after consultation pursuant to Connecticut Ethics Rule.) Appellants also argue that PracticalOffset, infra, the case upon which Advanced Analytics Labs relies to define an attorney's duty, also supports their position. We disagree.Offset is about scope of representation, not consultation. *Page 1

2016-07-06 06:42:18.687756+00

OPINION In a prosecution for driving under the influence of alcohol, appellant, the state of Ohio, appeals the decision of the Clinton County Municipal Court to grant a motion to suppress in favor of defendant-appellee, John F. Tissandier. The trial court found the traffic stop of appellee was outside the jurisdiction of the police officer who detained appellee and, therefore, violated the Fourth and Fourteenth Amendment to the United States Constitution. Accordingly, all evidence gathered as a result of the traffic stop was suppressed by the trial court. We reverse and remand. All the relevant facts are stipulated and/or undisputed. On March 18, 1998, Corporal Flynn of the New Vienna Police Department received an anonymous tip that a "possibly intoxicated person" was "engaging in disruptive behavior at the Shell station in New Vienna." The tip also described the vehicle being driven by appellee. Flynn proceeded toward the Shell station and was stopped at a traffic light "outside the Shell station." Flynn observed the vehicle described in the tip drive away from "the [Shell] lot in what appeared to be a high rate of speed." Flynn followed appellee westbound on State Route 28 and noticed appellee drive left of center on "several occasions." These observations occurred outside the limits of the village of New Vienna. Flynn radioed Sergeant Van Winkle of the Clinton County Sheriff's Department who "advised [Flynn] to stop the vehicle for safety reasons." Flynn stopped appellee and detained him. Appellee was arrested by a Deputy Wood of the Clinton County Sheriff's Department and charged with driving under the influence of alcohol.1 On April 27, 1998, appellee moved to suppress all evidence gathered against him because Flynn stopped him outside the limits of the village of New Vienna. After a hearing and written argument, the trial court granted the motion to suppress on May 30, 1998. From this ruling, the state of Ohio filed a timely notice of appeal pursuant to Crim.R. 12(J) and presents one assignment of error for our review: THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION TO SUPPRESS. R.C. 2935.03(D) provides that: If a sheriff, deputy sheriff, marshall, deputy marshall, municipal police officer, member of a police force employed by a metropolitan housing authority * * *, member of a police force employed by a regional transit authority * * *, constable, police officer of a township or joint township police district, or state university law enforcement officer * * * is authorized by division (A) or (B) of this section to arrest and detain, within the limits of the political subdivision * * *, a person until a warrant can be obtained, the police officer may, outside the limits of that territory, pursue, arrest, and detain that person until a warrant can be obtained if all of the following apply: (1) The pursuit takes place without unreasonable delay after the offense is committed. (2) The pursuit is initiated within the limits of the political subdivision * * * in which the peace officer is appointed, employed, or elected. (3) The offense involved is a felony, a misdemeanor of the first degree * * *, a misdemeanor of the second degree * * *, or any offense for which points are chargeable pursuant to division (G) of section 4507.021 [4507.02.1] of the Revised Code. In City of Cleveland Heights v. Richardson (May 7, 1981), Cuyahoga App. No. 42856, unreported, the Eighth Appellate District interpreted R.C. 2935.03(D). In Richardson, a South Euclid police officer received an anonymous tip about an erratic driver. The officer spotted the vehicle traveling outside of South Euclid, in the jurisdiction of Cleveland Heights. The officer pursued the vehicle, observed erratic driving and concluded a danger to public safety existed. At that point, the officer stopped the vehicle and radioed the Cleveland Heights police department for assistance. A Cleveland Heights police officer arrived at the scene, had the driver perform sobriety tests, arrested the driver and gave him a breathalyzer test. Richardson at 4. The court noted that under R.C. 2935.03(A), an officer generally cannot arrest someone for a misdemeanor committed outside the officer's jurisdiction. See Cincinnati v. Alexander (1978),54 Ohio St. 2d 248. However, the court found that the South Euclid officer did not intend to arrest the driver, but only to detain the driver until a Cleveland Heights officer arrived at the scene. The court found that the pursuit of the driver was initiated within South Euclid when the officer received the anonymous tip and the pursuit began without delay. R.C. 2935.03(D)(1) (2). Finally, driving under the influence is an offense for which points are chargeable under R.C. 4507.40(G). R.C. 2935.03(D)(3). Therefore, the South Euclid police officer who detained appellee complied with R.C. 2935.03(D). We agree with the reasoning of Richardson and believe it applies to the case sub judice. After the anonymous tip, Flynn began his pursuit in New Vienna without delay. Flynn did not intend to arrest appellee and called for the Clinton County Sheriff Department to investigate and, if necessary, arrest appellee. Cf. Richardson at 4. Finally, appellee was detained for suspicion of driving under the influence, a misdemeanor of the first degree. R.C. 2935.03(D)(3). Accordingly, appellee was validly detained pursuant to R.C. 2935.03(D) and the single assignment of error is well-taken. Finally, we note that even if the investigatory stop had violated R.C. 2935.03(D), "absent a violation of a constitutional right, the violation of a statute does not invoke the exclusionary rule." State v. Droste (1998), 83 Ohio St. 3d 36,40. See, also, Kettering v. Hollen (1980), 64 Ohio St. 2d 232,235. A violation of R.C. 2935.03(D), by itself, does not implicate constitutional rights. State v. Curry (Sept. 5, 1989), Butler App. No. CA89-02-032, unreported, at 6. Therefore, the trial court erred by suppressing evidence gathered after appellee was stopped by Flynn. Judgment reversed and remanded to the trial court for further proceedings according to law. KOEHLER and POWELL, JJ., concur. 1 Appellant was charged with violating R.C. 4511.19(A)(1) (3).

2016-07-06 06:42:17.552273+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: Defendant Kevin E. Carte has appealed his sentence in the Summit County Common Pleas Court. This Court reverses and remands for further proceedings consistent with this decision. I. On April 19, 1999, Defendant pled guilty to one count of sexual battery, a third degree felony in violation of R.C. 2907.03, and one count of corruption of a minor, a fourth degree felony in violation of R.C. 2907.04. The trial court merged the counts and sentenced him to the maximum of five years incarceration for sexual battery. Defendant appealed, and this Court reversed and remanded, holding that the trial court erred in imposing the maximum sentence because the sentencing decision failed to meet the statutory requirements. State v. Carte (July 5, 2000), Summit App. No. 19659, unreported, at 4. On August 21, 2000, the trial court resentenced Defendant. He timely appealed, asserting one assignment of error. II. The [trial] court improperly sentenced Defendant because [it] failed to address Defendant personally and ask if he wished to make a statement in (sic) his own behalf or present any information in mitigation of punishment in violation of [Crim.R. 32(A)(1)]. In his sole assignment of error, Defendant has argued that the trial court erred when it failed to provide him an opportunity for allocution upon resentencing. This Court agrees. Crim.R. 32(A)(1) provides that "[a]t the time of imposing sentence, the court shall * * * address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment." Moreover, the Ohio Supreme Court has recently determined that Crim.R. 32(A)(1) confers an absolute right of allocution. See State v. Campbell (2000), 90 Ohio St.3d 320,324-325; see, also, State v. Green (2000), 90 Ohio St.3d 352, 358-359. [A] trial court must address the defendant personally and ask whether he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment. Campbell, 90 Ohio St.3d at 323. Furthermore, this Court recently held inState v. Harper (Jan. 10, 2001), Summit App. 20122, unreported, at 5, that upon remand for resentencing, a trial court must again personally address a criminal defendant and afford him or her the opportunity to make a statement and present information in mitigation of punishment. In the instant case, the trial court failed to meet this obligation. The transcript of the resentencing hearing reveals that the trial court failed to address Defendant personally and ask whether he wanted to make a statement in his own behalf or present any information in mitigation of punishment. As a result, Defendant's absolute right to allocution was violated. See Harper, supra, at 5. His assignment of error is well taken. III. Defendant's sole assignment of error is overruled. The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this decision. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the County of Summit, Court of Common Pleas, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to Appellant. Exceptions. ___________________________ BETH WHITMORE BAIRD, P. J., CARR, J., CONCUR.

2016-07-06 06:42:17.585874+00

OPINION {¶ 1} Arthur Askew is appealing the Montgomery County Common Pleas Court's denial of his pre-sentence motion to withdraw his guilty plea. {¶ 2} On August 12, 2000, three individuals entered Robbie Brown's residence in Trotwood, Ohio and fired gunshots. After a car chase, Askew, Anthony Hart, and Tommy Lee Nichols were arrested and indicted. Askew was indicted for aggravated burglary with a firearm specification, six counts of felonious assault with firearm specifications, and obstructing justice.1 {¶ 3} On December 3, 2002, Askew and the State reached a plea agreement wherein he pled guilty to aggravated burglary and the State dropped the remaining counts. The plea also included an agreed sentence of three years imprisonment to be served concurrently with a federal sentence. On March 5, 2003, Askew filed a motion to withdraw his guilty plea. A hearing on the motion was held on June 5, 2003. The motion was overruled on August 18, 2003, and the agreed sentence was later imposed. Askew has filed this appeal, raising the following assignment of error. {¶ 4} "The trial court erred in failing to grant appellant's motion to withdraw his plea of guilty." {¶ 5} Askew argues that the trial court's denial of his motion to withdraw was an abuse of discretion because the court did not assign proper weight to factors it considered. We disagree. {¶ 6} A presentence motion to withdraw a guilty plea should be liberally allowed. State v. Kordelewski (Mar. 8, 1996), Montgomery App. No. 15425. However, a defendant does not have an absolute right to withdraw his plea prior to sentencing. Statev. Xie (1992), 62 Ohio St.3d 521, 527. A trial court must hold a hearing on the motion to determine if a reasonable and legitimate basis exists for the withdrawal. Id. Yet, the decision to grant or deny the motion is within the court's discretion. Id. Generally, denials of pre-sentence motions to withdraw pleas have been upheld even if the accused was mistaken as to an aspect of the plea's consequences. State v. Drake (1991),73 Ohio App.3d 640, 646; State v. Sabatino (1995), 102 Ohio App.3d 483, 486. {¶ 7} On appeal, a court will reverse a trial court's denial of a pre-sentence motion to withdraw a guilty plea only upon a finding of an abuse of discretion. State v. Peterseim (1980),68 Ohio App.2d 211, 213-214. An abuse of discretion occurs where the trial court's ruling is unreasonable, arbitrary, or unconscionable. Xie, supra; Peterseim, supra. In State v.Barnett (1991), 73 Ohio App.3d 244, 250, quoting Peterseim, supra, we stated: {¶ 8} "A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim. R. 11, before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request." {¶ 9} Askew concedes he was represented by competent counsel, given a full Crim.R. 11 hearing, and provided with a complete and impartial hearing on the motion. Due to this concession, we need only determine if the court gave full and fair consideration to Askew's request. {¶ 10} When conducting the hearing on the motion to withdraw, the trial court may consider: {¶ 11} "(1) whether the state will be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to withdraw, * * * [5] whether the timing of the motion was reasonable; [6] the reasons for the motion; [7] whether the defendant understood the nature of the charges and potential sentences; and [8] whether the accused was perhaps not guilty or had a complete defense to the charge." State v. Cuthbertson (2000), 139 Ohio App.3d 895,898-899. {¶ 12} At the hearing, Robbie Brown and her son testified. The son testified Nichols had stated that the Browns deserved what happened to them because of what Brown's cousin had done to Nichols. Although Nichols did not admit he was the shooter, Brown's son believed he was. The son also stated he had told this information to either a police officer or a prosecutor. Brown testified she told a prosecutor about Nichols's statements and her belief that he was the shooter. However, Brown did not mention the statements when she testified at a co-defendant's hearing because prosecutors had told her it was hearsay. {¶ 13} In its decision, the trial court applied the evidence to the Cuthbertson factors. The court found that the first and fifth factors favored granting Askew's motion because the State was not prejudiced by the plea withdrawal and the motion was filed in a timely manner. The court assigned greater weight to the first factor and lesser weight to the fifth factor. The second, third, sixth, and seventh factors were determined to weigh against the motion. The court granted greater weight to third and seventh factors as Askew had an extensive Crim.R. 11 plea hearing and had demonstrated that he understood the nature of the charges and the potential sentences. Little weight was given to the second and sixth factors. Along with the fourth factor, the eighth factor was determined to be neutral because the evidence was not exculpatory. {¶ 14} Askew argues the trial court abused its discretion in applying the evidence to the Cuthbertson factors. In particular, Askew disagrees with the court's conclusion that the evidence was not exculpatory and, therefore, did not weigh in favor of the motion. Askew argues the sixth and eighth factors should have been weighed in his favor and given the greatest weight. Further, he argues the court should have found the State withheld documents regarding Brown and her son's statements. Also, Askew contends more weight should have been given to the first factor and less weight to the third and seventh factors. {¶ 15} Even though Askew may disagree with the trial court's application of the evidence to the factors, the court gave full and fair consideration to his motion. The trial court considered Brown and her son's testimony that Nichols had made incriminating statements. However, this testimony did not exculpate Askew. The court noted Askew could still be guilty of aggravated burglary, even if he was only a complicitor. Moreover, Brown and her son never saw their assailants and their belief in Askew's innocence was merely opinion not exculpatory evidence. We cannot say the court's determination was unreasonable, arbitrary, or unconscionable. The court's weighing of factors reveals the court fully and fairly considered Askew's motion. {¶ 16} Further, the court considered Askew's allegation that the State withheld evidence. The evidence revealed the State did not have any affidavits from Brown or her son. Also, Askew was free to contact Brown or her son since their names appeared on the State's witness list. The court found no misconduct by the State. {¶ 17} As to the first, third, and seventh factors, the court conducted an analysis of the plea hearing, determined that Askew understood the charges and the potential sentences, and concluded that the State was not prejudiced by the withdrawal. Although the court may not have given the factors the weight Askew desired, the record demonstrates the court fully and fairly considered his motion to withdraw. Because the trial court satisfied the test adopted in Barnett, the court did not abuse its discretion in denying this motion. Askew's assignment of error is without merit and is overruled. {¶ 18} The judgment of the trial court is affirmed. Fain, J., and Grady, J., concur. 1 This was Askew's second indictment arising from the incident as the original indictment was nolled.

2016-07-06 06:42:17.666783+00

DECISION AND JOURNAL ENTRY Defendants-appellants, the Cloverleaf Local School District Board of Education and the Medina County Board of Mental Retardation and Development, appeal a judgment of the Medina County Court of Common Pleas that denied their motions to dismiss pursuant to Civ.R. 12(B)(6). Because the appellants have attempted to appeal from an order that is not final pursuant to2505.02 and because R.C. 2744.02(C) is inapplicable to this case, the appeal is dismissed. This court has jurisdiction to "review, affirm, modify, set aside, or reverse judgments or final orders." R.C. 2501.02. An order that denies a motion to dismiss for failure to state a claim upon which relief can be granted is not a final order within the jurisdiction of this court. See Bartok v. Merrill, Lynch, Pierce,Fenner Smith, Inc. (Sept. 6, 1989), Summit App. No. 14009, unreported, at 3. See, also, State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23, 23. Assuming, arguendo, that a political subdivision could attempt to avail itself of the benefit of immunity via Civ.R. 12(B)(6), however, "an order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability * * * is a final order" pursuant to R.C. 2744.02(C). R.C. 2744.02(C) was enacted as part of Am.Sub.H.B. 350, in conjunction with the addition of substantially similar language in R.C. 2501.02. The Supreme Court of Ohio has recently concluded that Am.Sub.H.B. 350 is unconstitutional in its entirety. Stateex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, paragraph three of the syllabus. Unrelated portions of R.C. 2744.02, however, were also amended as part of Am.Sub.H.B. 215. Pursuant to Section 15, Article II of the Ohio Constitution, Am.Sub.H.B. 215 repealed the prior version of R.C. 2744.02 and reenacted it as amended, effective June 30, 1997. "A statute is presumed to be prospective in its operation unless expressly made retrospective." R.C. 1.48. The legislature did not specify that R.C. 2744.02(C), as amended by Am.Sub.H.B. 215, applies to pending cases in which the cause of action accrued prior to June 30, 1997. Cf. R.C. 2505.02(D). Accordingly, the statute is presumed to apply prospectively. See R.C. 1.48; Colev. Holland (1996), 76 Ohio St.3d 220, 225. See, generally, VanFossen v. Babcock Wilson Co. (1988), 36 Ohio St.3d 100.1 In the absence of a statutory exception to the contrary, the denial of the appellants' motion to dismiss is not a final appealable order within the jurisdiction of this court. The appellants have attempted to appeal from an order that was not final within the meaning of R.C. 2505.02. This court does not have jurisdiction over the present appeal, and it is, therefore, dismissed. Appeal dismissed. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to Appellants. Exceptions. LYNN C. SLABY, FOR THE COURT WHITMORE, J., BATCHELDER, J., CONCUR. 1 We need not address the constitutional implications of a potential retroactive application. See Nease v. Medical CollegeHosp. (1992), 64 Ohio St.3d 396, 398. See, also, Van Fossen,supra, at 106. But see, EPI of Cleveland, Inc. v. Limbach (1989), 42 Ohio St.3d 103, 105, citing State, ex rel. Holdridge,v. Indus. Comm. (1967), 11 Ohio St.2d 175, paragraph one of the syllabus.

2022-07-29 03:08:16.762654+00

PER CURIAM. Appeal dismissed.

2016-07-06 06:42:17.519675+00

Koehler

Appellants, Ronald and Tamisha Fetters, appeal a decision of the Preble County Court of Common Pleas, Juvenile Division, dismissing appellants' complaint alleging that their daughter Shawnee was a neglected child while in foster care placement by the Preble County Children Services Board ("PCCSB"). We reverse and remand. Shawnee was diagnosed shortly after birth with moderate to severe gastral reflux, a condition where the esophagus does not close properly and can allow food to reenter, causing choking. The condition necessitated that Shawnee wear an apnea heart monitor while sleeping or when she was not being held. The Fetters were trained in monitor usage, proper wake-up techniques, infant CPR, and obstruction removal in order to manage Shawnee's condition. Shawnee, currently eighteen months old, was removed from appellants' home by PCCSB via a court order filed March 30, 1995. Appellants' five older children had already been removed. All six children were placed in the temporary custody of PCCSB in June 1995 by an agreed entry. Appellants admitted to dependency pursuant to R.C. 2151.04(A), which specifies a lack of "proper care or support, through no fault of [the] parents." PCCSB established a case plan with a goal of reunification, and the children were placed in foster care subject to supervised visitation with appellants. On April 20, 1995, after the children had been removed but prior to the temporary custody order, appellants arrived at PCCSB for their supervised visitation with the children. Appellants observed caseworker Christa Marsh arrive with Shawnee in her car. Once inside the building, appellants observed that Shawnee's heart monitor had a low heart alarm which had not been reset. When appellants asked Marsh about the alarm, Marsh allegedly indicated that she didn't know anything about it, nor was she trained in infant CPR or monitor usage. Appellants also state that the two cords connected to the monitor were reversed, the monitor patches were incorrectly placed, and there were approximately three inches of space between the belt and Shawnee's chest. When questioned by appellants, Marsh allegedly indicated that the company which maintains the recordings from the monitor had not been contacted by PCCSB. This entire incident was recorded on videotape by appellant Ronald Fetters. On April 21, 1995, appellants were advised that Shawnee had been taken to the hospital due to problems with her apnea monitor. Appellants called the hospital and spoke with Shawnee's foster mother. Appellants state that when they asked *Page 485 the foster mother if she was aware that rice cereal was to be put in Shawnee's baby formula by doctor's orders, the foster mother said she was not aware of that. The foster mother is also alleged to have said that she was not aware that the head of Shawnee's bed was to be raised and was not aware that the white heart monitor lead was to be connected on the baby's right side. Appellants filed a complaint as a result of these incidents, alleging that Shawnee was a neglected child and requested that Shawnee be removed from foster care and placed back with PCCSB or with appellants. PCCSB filed a motion to dismiss appellants' complaint, alleging that the complaint failed to meet Juv.R. 10(B) requirements because it contained an incorrect numerical statutory reference. PCCSB pointed to the fact that although the complaint is one in neglect, the complaint states that the conduct of PCCSB and the foster parent in regard to Shawnee's medical condition violated R.C. 2151.04(D)(1) and (2), which is a dependency statute. The trial court, by a June 21, 1995 entry, granted PCCSB's motion to dismiss pursuant to Juv.R. 10(B). Appellants appeal pro se from that entry, assigning the following as error: "The trial court erred in denying the return of Shawnee Autumn Alexis Dawn Fetters to her natural parents, in that the child had not been adopted and that the state failed to show by clear evidence that it would not be in the child's best interest to be returned to her natural parents. Furthermore, the father testified as to the parents' ability and desire to care for this child and denying the return was against the manifest weight of evidence presented at the hearing which was a conflict with parental rights and clearly arbitrary and capricious and resulted in abuse of discretion." As an initial matter we must address appellee's challenge to this court's jurisdiction over the appeal. Appellee states that although the trial court's dismissal of appellants' complaint was proper, "the dismissal of the complaint did not leave the appellants without further recourse in the Juvenile Court. As the appellants have not exhausted their lower court remedies, they are not properly before this Court." The trial court denied appellants' oral motion to amend the complaint and filed an entry dismissing appellants' complaint and allocating court costs. We conclude from a review of the record that there is no pending unresolved claim as to this action, and the entry appealed from constitutes a final appealable order which dismissed the entire action. See ChefItaliano v. Kent State Univ. (1989), 44 Ohio St.3d 86, 88,541 N.E.2d 64, 67. This court therefore has jurisdiction over the appeal. *Page 486 Appellants' pro se brief, although inartfully drafted, does state the argument that the trial court erred in denying the return of Shawnee. The independent issue of whether Shawnee should remain in her present foster care, apart from a disposition as to the other children, was raised in appellants' April 1995 complaint alleging that Shawnee has suffered neglect at the hands of her foster mother and caseworker Christa Marsh. The trial court granted appellee's motion to dismiss the complaint because the complaint, although clearly stating neglect on its face and acknowledged by appellee as alleging neglect, contained a numerical reference to R.C. 2151.04(D)(1) and (2), which is a dependency statute. Appellee cites Juv.R. 10(B)(1), which requires that a complaint "(1) [s]tate in ordinary and concise language the essential facts that bring the proceeding within the jurisdiction of the court, and in juvenile traffic offense and delinquency proceedings, shall contain the numerical designation of the statute or ordinance alleged to have been violated." We note that as appellants are proceeding pro se, their filings will be construed liberally by this court. See State exrel. Reque v. Clark (July 27, 1992), Brown App. No. CA91-02-005, unreported, 1992 WL 176459. Juv.R. 10(B) does not require that a complaint include a numerical statutory designation except in a juvenile traffic or delinquency proceeding. See In re Vanek (Sept. 29, 1995), Ashtabula App. No. 95-A-0027, unreported, 1995 WL 787429. When the motion to dismiss was heard, appellants acknowledged the incorrect statutory designation and indicated that they were in fact proceeding under R.C. 2151.03(A)(3), which defines a neglected child.1 The trial court still denied appellants' oral motion to amend and dismissed the complaint. Our focus here is one of substance over form. In spite of the statutory citation inconsistent with the facts as pleaded, the action is described in the complaint as one for neglect, and the facts make out a claim for neglect. See Reque, Brown App. No. CA91-02-005, unreported, 1992 WL 176459 (where pro se relator mistakenly attempted to proceed under the federal Freedom of Information Act, court construed the petition liberally as alleging a violation of the Ohio Public Records Act). The record does not disclose any legal prejudice to appellee by appellants' use of the wrong statute number, and in fact appellee describes the complaint as one for neglect. *Page 487 The complaint demonstrates a good faith effort on the part of appellants to comply with the rules and adequately notified PCCSB of the claim appellants intended to assert. See In reSims (1983), 13 Ohio App.3d 37, 42-43, 13 OBR 40, 45-47,468 N.E.2d 111, 117-119 (in an action involving the possible severance of custody rights, the respondent to the complaint is entitled to be apprised of the basis of the claim). The correction of mistaken section numbers is within the sound discretion of the trial court. State v. Hill (Dec. 28, 1976), Franklin App. No. 76AP-504, unreported. It is our determination that the trial court's dismissal of appellants' complaint instead of providing appellants with an opportunity to cure the defect was not a valid exercise of the court's discretion. We therefore reverse the trial court's dismissal of appellants' complaint and remand the cause for further proceedings as provided by law. Judgment reversedand cause remanded. WALSH, P.J., and POWELL, J., concur. 1 R.C. 2151.03(A)(3) includes in the term "neglected child" a child "whose parents, guardian, or custodian neglects or refuses to provide him with proper or necessary * * * medical * * * care or treatment, or other care necessary to his health, morals, or well being." (Emphasis added.)

2016-07-06 06:42:18.089367+00

Evans

This is an appeal by the state from a judgment of the Court of Common Pleas of Hardin County granting the motion of the defendant, Robert Ellis, to exclude the testimony of his wife during his criminal trial. Appellee's indictment arose out of the theft of money from a convenience store. The theft was facilitated by appellee's girlfriend, Danielle Bowers, who was an employee of the business. Danielle was a minor at the time of the theft. Based upon the report of a police interview with Danielle, wherein she described the modus of the theft and identified appellee as her confederate, appellee was arrested and charged with grand theft, in violation of R.C. 2913.02(A)(1), with a specification of a prior violence offense, see R.C. 2941.143, and with contributing to the delinquency of a minor, in violation of R.C. 2919.24(A)(2). Appellee was indicted by a grand jury on July 9, 1991. Trial on the indictment was set for December 17 and 18, 1991. Following the state's request for a continuance, the trial was rescheduled for February 3 and 4, 1992. On January 24, 1992, appellee filed a motion in limine requesting the court to exclude from evidence the testimony of Danielle Bowers, on the basis that Evid.R. 601 provides that "a spouse testifying against the other spouse charged with a crime" is not a competent witness. The court failed to respond to the *Page 364 motion prior to the trial date, but held a hearing on the morning of February 3, 1992. Although the potential jurors had already convened, they were dismissed prior to the motion hearing. It was established at the hearing that appellee and Danielle Bowers had been married on December 24, 1991. The court therefore ruled that Danielle was incompetent to testify against her husband unless she chose to do so. See Evid.R. 601(B)(2). Pursuant to Crim.R. 12(J), the state took an immediate appeal from the court's granting of the motion, contending that the court's decision "rendered the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed." Crim.R. 12(J)(2). Appellant has asserted the following assignment of error: "The trial court committed reversible error in expanding the substantive rights of a spouse under Ohio Revised Code section2945.42 through an application of procedural evidence." While appellant has failed to provide us with a proper assignment of error and issue for review as required by App.R. 16(A) and Loc.R. 7(A),1 in the interest of justice we will presume that the state is assigning error to the court's finding that Danielle Ellis was incompetent to testify against her husband in his criminal trial, pursuant to Evid.R. 601(B). Because we find that the trial court committed error, either due to a misunderstanding of, or an unreasonable application of, the applicable law, we sustain the assignment of error, and reverse the judgment of the trial court. The state argues that R.C. 2945.42 and Evid.R. 601 conflict as to the competency exception for spouses. We hasten to point out that the portion of the statute relating to spousal competence has been superseded by the Evidence Rule since its inception in 1980.2 Pursuant to the rule, a witness-spouse is incompetent "to testify against the other spouse in a criminal prosecution with the broad exception of any crimeagainst the testifying spouse." (Emphasis added.) Evid.R. 601(B), 1980 Staff Note. Under the exception, such spouse can be compelled to *Page 365 testify against the criminally charged spouse. Evid.R. 601(B)(1).3 Furthermore, case law interpretation of the Rule "has affirmed the competency of a spouse to testify against the other spouse as to a crime committed against a third person where the crime is part of one continuous transaction or occurrence which culminates in offenses against the third party and the spouse." Weissenberger's Ohio Evidence (1991), Section 601.4 (citing State v. Mowery [1982], 1 Ohio St. 3d 192, 1 OBR 219, 438 N.E.2d 897, syllabus); State v. Fewerwerker (1985),24 Ohio App. 3d 27, 24 OBR 49, 492 N.E.2d 873. Appellee's crime of theft against the convenience store owner and his contributing to the corruption or delinquency of his minor accomplice "constitute one continuous transaction or happening culminating in offenses against two individuals." (Emphasis added.) Mowery, 1 Ohio St.3d at 197, 1 OBR at 224,438 N.E.2d at 901. Since the offenses were inextricably intertwined, arising out of the "same continuing incident," eliciting evidence from Danielle relating only to the "contributing" charge would serve only to thwart the express purpose of the Ohio Rules of Evidence "to provide procedures for the adjudication of causes to the end that the truth may be ascertained and proceedings justly determined." Evid.R. 102. Since Danielle was the only eyewitness to appellee's crimes, exclusion of her testimony precludes a just resolution of the case. We find that the trial court erred in declaring Danielle incompetent to testify against her husband, since the exception to spousal incompetence is applicable to the circumstances of this case under the rule and the common law. Appellee's involvement of Danielle, his minor girlfriend, in the theft of money from her employer, resulting in his indictment for contributing to delinquency of a minor, is a crime against her as contemplated by the Rules of Evidence. She is thus competent to testify against her spouse in his trial on the contributing charge, as well as the theft, since the charges arose out of a single criminal event which victimized Danielle as well as others. See Mowery, 1 Ohio St.3d at 196-197, 1 OBR at 223-224,438 N.E.2d at 900-901. Having found prejudice to the appellant herein, we reverse the judgment of the trial court, and remand the case to that court for further proceedings. Judgment reversedand cause remanded. HADLEY, P.J., and THOMAS F. BRYANT, J., concur. 1 The Staff Note to amended App.R. 16(A), effective as of July 1992, clearly illustrates and explains the proper formulation of assignments of error and issues presented for review in all Ohio appellate courts. 2 Spousal privilege, or the right of a witness-spouse to refuse to testify concerning private, intramarital communications, is not at issue in this case since any communication between appellee and his spouse relating to the execution of the theft took place before the marriage, and thus was not "privileged" under the rule. 3 Spousal privilege, as opposed to spouse-witness competency, is encompassed by Evid.R. 501 and is still validly addressed by the relevant portion of R.C. 2945.42. The two "exclusionary" rules "are separate, independent rules of exclusion." State v. Savage (1987), 30 Ohio St. 3d 1, 30 OBR 11,506 N.E.2d 196. Savage sets forth a clear and succinct explanation of the difference. See id. at 3-4, 30 OBR at 12-13,506 N.E.2d at 197-198. *Page 366

2016-07-06 06:42:18.631163+00

Young

This matter is before this court upon the appeal of CC Bars Sahara, Inc., d.b.a. Sahara Lounge ("Sahara"), appellant, from a judgment of the Franklin County Court of Common Pleas in favor of the Ohio Liquor Control Commission ("commission"), appellee. Appellee seized nine bottles of whiskey from appellant's place of business. A chemist for the state analyzed the whiskey and found that six of the nine bottles seized were below the advertised eighty proof. The results also demonstrated a discrepancy from the reference standard in the extracts, acidity and esters. The comparison was made to a reference standard which is compiled yearly by the commission. Thereafter, the commission filed a complaint against the appellant, alleging that the bottles had been refilled and/or diluted in violation of R.C. 4301.68 and Ohio Adm. Code 4301:1-1-47. The commission conducted a hearing and determined that the permit holder, appellant, had violated R.C. 4301.68 and Ohio Adm. Code 4301:1-1-47, and ordered that the liquor permit be revoked. The appellant appealed that decision to the Franklin County Court of Common Pleas. When the trial court affirmed the commission's decision, this appeal ensued. The appellant now asserts the following three assignments of error: "Assignment of Error No. I: "The Department of Liquor Control failed to compare the properties of the seized bottles of liquor from the permit holder to the formulae provided by the manufacturers of the various brands which the appellant was charged with diluting or refilling. *Page 22 "Assignment of Error No. II: "There was no testimony to indicate that the permit holder or an agent or employee of the permit holder refilled or diluted any of the bottles under Regulation 4301:1-1-47 of the regulations of the Ohio Liquor Control Commission. "Assignment of Error No. III: "The reference standards and the seized permit holder's liquor bottles all contained less than eighty (80) proof whiskey which is less than the advertised proof on each of the various Canadian whiskeys." In the first assignment of error, appellant asserts that the state's chemist did not use the formulae provided by each particular manufacturer in making the comparison between the bottles seized and a standard of reference. Appellant argues that the bottles seized from appellant's premises could have been processed three years before or three years after the sample used by the chemist in the standard of reference, which would result in varying congeneric properties. Appellee asserts that the commission annually tests a sample of each type of liquor sold in the state of Ohio and uses that analysis as the reference standard. Furthermore, each manufacturer must notify the Ohio Department of Liquor Control when there is a new product, or a change in the production of a current product, and forward a sample so that it can be tested. R.C. 4301.68 provides: "No person shall sell, offer for sale, or possess intoxicating liquor in any original container which has been diluted, refilled, or partly refilled." Upon review, there is no statute or regulation which dictates that the commission must use the formulae provided by the manufacturers as a standard of reference, for comparison purposes, under circumstances such as those in the matter herein. In Langdon v. Bd. of Liquor Control (1959), 112 Ohio App. 232, 16 O.O.2d 149, 175 N.E.2d 866, syllabus, this court stated: "An order of the Board of Liquor Control revoking a liquor permit for possession of diluted intoxicating liquor in an original container which has been refilled or partially refilled in violation of Section 4301.68, Revised Code, and the regulations of the board, is supported by reliable, probative and substantial evidence and is in accordance with law, where evidence before such board consisted of testimony of the board's chemist that an analysis of bottles found on the permit premises showed that the congeneric properties of the contents thereof did not compare with the manufacturer's formula or with ananalysis of such brand made by the Department of Liquor Control * * *." (Emphasis added.) *Page 23 In accordance with Langdon, the state chemist submitted six reports concerning the makeup of the liquor seized, which demonstrated that the alcohol content deviated from the reference standard by as much as 5.9 percent, extract by as much as 16.3 percent, acidity by as much as 46.1 percent, esters by as much as 73.6 percent, and color by as much as 8.1 percent. This evidence was uncontroverted, since the appellant offered no testimony or other evidence to support its claim that the liquor seized from its premises had not been tampered with prior to its seizure by the agents of the Ohio Department of Liquor Control. Accordingly, appellant's first assignment of error is not well taken and is overruled. In the second assignment of error, appellant asserts that there was no testimony which demonstrated that the bottles seized had been diluted and/or refilled. Upon review, the record indicates that the commission was responding to a complaint that liquor being served at appellant's premises was diluted. The investigators answering the complaint arrived at the premises in the afternoon and identified themselves. Based upon their experience, they seized nine bottles that appeared to have worn labels. The contents of the bottles were tested and three of the bottles were found to be satisfactory. However, six of the bottles did not approximately match the reference standard and, thus, the state's chemist's written analysis indicates his conclusion, in each instance, whether the bottle analyzed was refilled, or diluted and refilled. Accordingly, appellant's second assignment of error is not well taken and is overruled. Appellant's third assignment of error asserts that the reference standards contained less than eighty proof whiskey. However, appellant presents this assertion without any supportive argument. The record indicates that the reference standards allow for a slight deviation below eighty proof, but generally do not allow for a deviation above eighty. The chemist for the state testified as follows: "COMMISSIONER SWEENEY: Excuse me. How much of a margin do you allow below the advertised — "THE WITNESS: The law states it should be within half a proof; but in this case because of the way we do it, we are allowed to give some balance, you know, 79 or 78.8. In other words, we are not — we are doing it just for the purpose of comparing them. "COMMISSIONER SWEENEY: But you are also using it for these studies as well? "THE WITNESS: Right, for comparing. And more often — can we go off the record? *Page 24 "COMMISSIONER SWEENEY: Yeah. "(Discussion off the record.) "THE WITNESS: I don't recall any bottle that has been done that a report has been done for the DB D that has has [sic] been substandard proof. "COMMISSIONER SWEENEY: In this testing does it run on both sides of 80 roughly even. That is 81 as compared with 79? "THE WITNESS: No, I never — "COMMISSIONER SWEENEY: Does it generally run below? "THE WITNESS: Yeah, right. That is primarily, we feel that they are very careful because the federal government would come very heavy on them because of the proof count." There was no evidence presented that the reference standard used in this case by appellee showed a material deviation from the manufacturers' formulae. Accordingly, based on the evidence, the reference standards were within the proof count deviation allowed by law. Appellant has not demonstrated otherwise. Based on the foregoing, appellant's first, second and third assignments of error are not well taken and are overruled. The judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. PEGGY BRYANT and TYACK, JJ., concur.

2016-07-06 06:42:17.766649+00

OPINION {¶ 1} Mark A. King appeals from the judgment of the Lake County Court of Common Pleas, which found him to be a sexual predator under R.C. 2950.01(E). We affirm. {¶ 2} On January 8, 1993, in Case No. 2004-L-185, King pleaded guilty to two counts of attempted rape and one count of gross sexual imposition. The trial court sentenced King to concurrent prison terms of three to fifteen years and one year respectively. {¶ 3} In Case No. 2004-L-186, King pleaded guilty to one count of gross sexual imposition. The trial court sentenced King to one year in prison, with this term to be served concurrent with the sentences in Case No. 2004-L-185. {¶ 4} On September 8, 2004, the trial court held a consolidated hearing in the underlying cases and by entry filed October 12, 2004, found King to be a sexual predator. King filed a timely appeal from the trial court's judgment. We consolidated the cases for purposes of argument and disposition. {¶ 5} King's appeal raises one assignment of error, to wit, "The trial court committed reversible error when it labeled the defendant-appellant a sexual predator against the manifest weight of the evidence." {¶ 6} For an offender to be adjudicated a sexual predator, the trial court must find, by clear and convincing evidence, that the offender has been convicted of a sexually oriented offense and that the offender is likely to engage in the future in one or more sexually oriented offenses. R.C. 2950.01(E)(1). See, also,State v. Eppinger (2001), 91 Ohio St.3d 158, 163. {¶ 7} The trial court must consider the factors set forth in R.C. 2950.09(B)(3), but has discretion to determine the weight, if any, given to each guideline. State v. Thompson (2001),92 Ohio St.3d 584, paragraph one of the syllabus. These factors are: the offender's age; the offender's prior criminal or delinquency record regarding all offenses; the victim's age; whether the offense involved multiple victims; whether the offender used drugs or alcohol to impair the victim of the offense or to prevent the victim from resisting; if the offender has previously been convicted of or pled guilty to a criminal offense, whether the offender completed the sentence imposed and, if the prior offense was a sex offense, whether the offender participated in programs available for sex offenders; any mental illness or mental disability of the offender; the nature of the sexual conduct with the victim and whether it was part of a demonstrated pattern of abuse; whether, during the commission of the offense, the offender displayed cruelty or made one or more threats of cruelty; and any additional behavioral characteristics that contribute to the offender's conduct. R.C. 2950.09(B)(3)(a)-(j). {¶ 8} In reaching its decision, the trial court, "should discuss on the record the particular evidence and factors upon which it relie[d] in making its determination regarding the likelihood of recidivism." Eppinger, (2001), at 166. See, also,Thompson, at 588. {¶ 9} In State v. Randall (2001), 141 Ohio App.3d 160, we stated: {¶ 10} "Even though the trial court is not required to refer to each factor in making its determination, the court is required to provide a general discussion of the factors so that the substance of the determination can be properly reviewed for purposes of appeal. Such a discussion can be set forth on the record during the sexual offender hearing or in the court's judgment entry." (Internal citations omitted.) Id. at 165-66. {¶ 11} When reviewing a sexual predator adjudication, we must examine the record and determine whether the trier of fact had before it sufficient evidence to satisfy the burden of proof.State v. Stillman (Dec. 22, 2000), 11th Dist. No. 2000-L-015, 2000 Ohio App. LEXIS 6106, 3, citing, State v. Schiebel (1990),55 Ohio St.3d 71, 74. {¶ 12} In the instant case, the sole issue is whether the state presented clear and convincing evidence to establish King is likely to reoffend. Specifically, King directs us to consider that his age at the time of the hearing, thirty-five, decreases the likelihood he will reoffend. He points to his lack of history of violent offenses and the fact that he did not use drugs or alcohol to impair his victims. He point to evidence that he successfully completed a sex offender program while incarcerated, has actively furthered his education while incarcerated and has been involved in the Jaycees. He points out that while he was diagnosed as a pedophile and as having posttraumatic stress disorder, he was found not to have antisocial personality disorder. He noted he did not restrain his victims and that in fact, one of his victims left the room immediately after he touched the victim. The court psychologist found there was no evidence of death threats, physical assaults, or cruelty. Finally, King notes that while he has had limited relationships with age appropriate females, he did have a girlfriend prior to his incarceration, and has been incarcerated from a young age. {¶ 13} While all of these factors arguably weigh against a finding of likelihood of recidivism, we find the state presented ample evidence to support the trial court's judgment. {¶ 14} King was twenty-two years old at the time he committed the offenses at issue; his victims were five and ten year old boys. King has a prior criminal record including three sex offenses (two counts of gross sexual imposition and one count of sexual imposition.) King's offenses involved multiple victims. While King completed his sentences for his prior offenses and completed programs for sexual offenders while serving those sentences, he committed the instant offenses shortly after being released from his prior sentences. The court psychologist diagnosed King as a pedophile, exclusive type, attracted to both males and females. The state presented evidence that the underlying offenses were committed a part of a demonstrated pattern of abuse and that King threatened the victims and their families. The state presented evidence under subsection j that King is a fixated child molester with a sexual interest in children under thirteen years old; has low intelligence and poor social skills; and substitutes children for age appropriate relationships. Finally, the parties stipulated to the report of the court psychologist who found King to have a medium high risk of recidivism. {¶ 15} After reviewing the record and considering the above cited evidence, we cannot say the trial court clearly lost it way when it adjudicated King a sexual predator. {¶ 16} For the foregoing reasons, appellant's sole assignment of error is without merit and the judgment of the Lake County Court of Common Pleas should be affirmed. O'Neill, J., O'Toole, J., concur.

2016-07-06 06:42:17.798332+00

JOURNAL ENTRY AND OPINION Defendant-appellant Deshun A. Whitlow ("Whitlow") appeals from his conviction of carrying a concealed weapon (see R.C. 2923.12)1 following a plea of no contest. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the March 27, 2000 original indictment against Whitlow stated that on January 15, 2000, * * * in the County of Cuyahoga, unlawfully and knowingly carried or had concealed on his person or concealed ready at hand, a deadly weapon or dangerous ordnance, to-wit: loaded firearm. At the plea hearing, the State provided a summary of Whitlow's actions which formed the basis for the indictment. See Tr. 16-18. Essentially, the State informed the trial court that Whitlow displayed a pistol through the window of a local barbershop and threatened to kill the barber/owner (Mr. Graham) therein. As the police were called and after the owner of the shop told Whitlow to go away, Whitlow proceeded to run down a nearby alley. The police apprehended Whitlow a short distance from the barbershop, at which time Whitlow, crying, professed remorse for his actions. The police then performed a pat-down search of Whitlow's person and found twenty-three .22-caliber cartridges in one of Whitlow's pockets. At this point, Whitlow volunteered that [T]he gun's under the garbage can. Tr. 18. The police immediately recovered the pistol and returned Whitlow and the weapon to the barbershop where the shop owner identified Whitlow as the individual who threatened him, and identified the firearm as the weapon that Whitlow had displayed outside the shop. This firearm was later successfully test-fired by the police and declared operable. Appellant presents one assignment of error for review, stating: THE TRIAL COURT ERRED WHEN IT MADE ITS FINDING OF GUILT BECAUSE THE STATE FAILED TO PROVIDE THE COURT WITH SUFFICIENT FACTS THAT MR. WHITLOW POSSESSED A LOADED FIREARM. In this assignment, appellant argues that the State charged Whitlow with possessing a loaded firearm, yet failed to present any evidence to the trial court that the firearm found by the police was actually loaded. Thus, appellant argues that his conviction should be reversed and remanded for a new trial. Apart from the to-wit: loaded firearm language, the indictment is essentially a mirror image of the statutory language for a violation of R.C. 2923.12(A). Furthermore, that the ammunition for the firearm was located in Whitlow's pocket, to-wit, ready at hand, see R.C. 2923.12(D), the indictment is sufficient to charge the fourth-degree felony offense of carrying a concealed weapon. See Crim.R. 7(B). The to-wit: loaded firearm language is surplusage because it was not necessary to be proven in order to constitute the offense of carrying a concealed weapon; rather, it is sufficient that the fact-finder find the presence of a deadly weapon. See State v. Poston (Mar. 2, 2000), Cuyahoga App. No. 75846, unreported, 2000 Ohio App. LEXIS 772 at 8. The firearm herein, which was operable, constitutes a deadly weapon because it was capable of inflicting death, was designed as a weapon, and was possessed or carried as a weapon. By entering a plea of no contest to a factually sufficient indictment for the felony offense of carrying a concealed weapon, Whitlow admitted the truth of the allegations alleged in the indictment. See Crim.R. 11(B)(2). Accordingly, the court must find the defendant guilty of the charged offense. State v. Bird (1998), 81 Ohio St.3d 582, 584, citing State v. Mascio (1996), 75 Ohio St.3d 422, 425. Assignment overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DIANE KARPINSKI, A.J., and ANNE L. KILBANE, J., CONCUR. 1 R.C. 2923.12, carrying concealed weapons, provides in pertinent part the following: (A) No person shall knowingly carry or have, concealed on his or her person or concealed ready at hand, any deadly weapon or dangerous ordnance. * * * (D) * * *, if the weapon involved is a firearm that is either loaded or for which the offender has ammunition ready at hand, * * * carrying concealed weapons is a felony of the fourth degree. * * *. A deadly weapon is defined as * * * any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon. R.C. 2923.11(A). Firearm includes an unloaded firearm. R.C. 2923.11(B)(1). Whitlow was sentenced on October 26, 2000 to a term of one year of community control sanctions for a fourth-degree felony.

2016-07-06 06:42:17.824727+00

JOURNAL ENTRY AND OPINION Plaintiff-appellant the City of Cleveland ("City") appeals from the trial court's granting of a motion to dismiss in favor of the Defendant-appellee Brett Kristoff ("Kristoff"). For the reasons set forth below, we affirm the judgment of the trial court. On May 2, 2001, Kristoff came upon two of his friends, one of whom was being questioned by two Cleveland Police detectives in plain clothes regarding a recent crime in the area. When Kristoff noticed his friend being questioned, he allegedly requested that the detectives provide identification, to which neither detective responded. Kristoff then encouraged his friend to refuse to answer any of the detectives' questions. Kristoff repeatedly told his friend that he was not required to answer any questions until the detectives provided identification proving that they were, in fact, detectives. In an attempt to dissuade Kristoff from interfering, the detectives warned Kristoff that he was hampering an official investigation. Kristoff ignored the warnings and continued. The detectives then attempted to arrest Kristoff for obstructing official business in violation of C.C.O. 615.06, at which point a struggle ensued between them and Kristoff. Kristoff was subsequently charged with resisting arrest. Kristoff pleaded not guilty and filed a motion to dismiss the complaint. The trial court granted the motion at a hearing on August 1, 2001. It is from this ruling that the City now appeals asserting two assignments of error for our review. I. THE TRIAL COURT ERRED WHEN IT DISMISSED THE CHARGE OF OBSTRUCTING OFFICIAL BUSINESS AGAINST THE APPELLEE HOLDING THE CHARGE WAS UNCONSTITUTIONAL IN ITS APPLICATION ON THE BASIS OF FREE SPEECH PURSUANT TO THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION. The City challenges the decision of the trial court, which found that the city ordinance, as applied, violated Kristoff's free speech rights under the First Amendment. We agree with the decision of the trial court. The ordinance which Kristoff allegedly violated states: No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within its official capacity, shall do any act which hampers or impedes a public official in the performance of his lawful duties. C.C.O. 615.06. This ordinance mirrors R.C. 2921.31. Kristoff contends that his remarks to his friend do not constitute an act pursuant to this ordinance. We agree. In State v. Lazzaro (1996), 76 Ohio St.3d 261, 667 N.E.2d 384, the Supreme Court of Ohio held that: The making of an unsworn false oral statement to a public official with the purpose to mislead, hamper or impede the investigation of a crime is punishable conduct within the meaning of R.C. 2921.31(A). The Supreme Court of Ohio has not determined whether true statements made to police officers in the course of conducting official business constitute "conduct" as contemplated by the statute. However, after a thorough review of applicable case law, this court noted in City of Parmav. Campbell (Nov. 1, 2001), Cuyahoga App. Nos. 79041 and 79042, unreported, "* * * courts have affirmed convictions for obstruction of official business only when the manner and context of the boisterous statement prevented a public official from carrying out his or her lawful duty." (Emphasis added.) In the case sub judice, Kristoff's comments may have disturbed the detectives insofar as their investigation was in abeyance while the detectives turned to Kristoff to warn him about interfering. However, the City presented no evidence that Kristoff's encouraging statements advising his friend of his right to refrain from answering the detectives' questions were spoken so boisterously and in such a manner as to prevent the detectives from carrying out their duties. We cannot find that Kristoff's comments to his friend constituted an act under the statute. Therefore, we find that the trial court did not err in dismissing the case and finding that the charge of obstructing official business unconstitutionally infringed upon Kristoff's First Amendment rights. This assignment of error is not well-taken. II. THE TRIAL COURT ERRED IN DISMISSING THE CHARGE OF RESISTING ARREST HOLDING THE CHARGE WAS UNCONSTITUTIONAL IN ITS APPLICATION ON THE BASIS OF FREE SPEECH PURSUANT TO THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION. Within this assignment of error, the City contends that the detectives' arrest of Kristoff was lawful, Kristoff resisted, and therefore the trial court erred in dismissing the resisting arrest charge against him. We disagree. In Garfield Heights v. Simpson (1992), 82 Ohio App.3d 286,611 N.E.2d 892, this court held: As to the element of a "lawful arrest," we further note that it is incumbent upon the state to prove as an element of the offense that the arrest was lawful. Strongsville v. Waiwood (1989), 62 Ohio App.3d 521, 524, 577 N.E.2d 63, 64; State v. Johnson (1982), 6 Ohio App.3d 56, 58, 6 OBR 268, 270, 453 N.E.2d 1101, 1103; State v. Clay (1988), 43 Ohio Misc.2d 5, 6, 539 N.E.2d 1168, 1169. In determining the lawfulness of an arrest, the elements of an underlying offense need not be proven, but there must exist a "reasonable basis" for the arrest. Id., State v. Johnson, supra. That is, conduct which does not amount to an offense beyond a reasonable doubt may supply the officers with a reasonable basis for the arrest. State v. Kirchner (1984), 19 Ohio Misc.2d 7, 8, 19 OBR 183, 185, 483 N.E.2d 497, 499. The "reasonable basis" test considers whether a reasonable police officer under similar circumstances would have concluded that the defendant committed a crime suitable for arrest. Id. In this case, it is undisputed that the detectives physically struggled with Kristoff when they attempted to arrest him. We must now determine whether a reasonable detective under similar circumstances would have concluded that Kristoff violated C.C.O. 615.06. In order to so, a reasonable detective would have to conclude that Kristoff acted with purpose to prevent, obstruct or delay the detectives' investigation and subsequently hampered or impeded the detectives in their lawful duties. The City presented no evidence that Kristoff acted with any specific purpose to prevent, obstruct or delay the detectives' investigation. The record indicated that Kristoff was, albeit energetically, merely informing his friend of his rights under the law. Therefore, this 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 Cleveland 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. ANNE L. KILBANE, P.J., AND COLLEEN CONWAY COONEY, J., CONCUR.

2016-07-06 06:42:18.781961+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JUDGMENT ENTRY. {¶ 1} 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). {¶ 2} Defendant-appellant, Emma Binford, appeals the decree of divorce entered by the Hamilton County Court of Common Pleas, Domestic Relations Division. For the following reasons, we affirm the trial court's judgment. {¶ 3} Mrs. Binford and plaintiff-appellee, Reggie S. Binford, were married in 1983. In December 2000, Mr. Binford filed a complaint for divorce. The parties entered into stipulations, which the magistrate accepted before issuing his decision. Both parties then filed objections. The trial court sustained the objections and returned the case to the magistrate for an inquiry into whether the stipulations had been validly executed. {¶ 4} After another hearing before the magistrate, the stipulations were substantially upheld. The magistrate issued his decision, and, following objections, the trial court issued a divorce decree in accordance with the magistrate's decision. {¶ 5} On appeal, Mrs. Binford now asserts, in a single assignment of error, that the trial court erred in failing to award her spousal support and in failing to find that Mr. Binford had engaged in financial misconduct. {¶ 6} In determining whether and to what extent to award spousal support, the trial court must consider the factors set forth in R.C.3105.18(C)(1). A court's decision regarding spousal support will not be reversed absent an abuse of discretion.1 The term "abuse of discretion" means more than a mere error of law or judgment; it implies that the trial court's decision was unreasonable, arbitrary, or unconscionable.2 {¶ 7} In the case at bar, we find no abuse of discretion in the trial court's denial of spousal support. Although she cites the statutory factors in her brief, Mrs. Binford cites no evidence in the record to indicate that an award of spousal support would have been appropriate. Moreover, our independent review of the record convinces us that the trial court's decision was not unreasonable, arbitrary or unconscionable. {¶ 8} Mrs. Binford also argues that the trial court erred in failing to adjust the division of marital property to account for the alleged financial misconduct of Mr. Binford. Specifically, she argues that Mr. Binford's neglect of certain rental property and his delinquency in paying taxes on the property constituted misconduct that resulted in the property's devaluation. {¶ 9} The division of marital property is governed by R.C.3105.171(C)(1), which provides that marital property shall be divided equally unless an equal division would be inequitable. The factors that a trial court must consider in making its decision are set forth in R.C.3105.171(F). The domestic relations court has broad discretion in dividing marital property, and a reviewing court will not disturb that decision absent an abuse of discretion.3 {¶ 10} In the case at bar, we find no abuse of discretion. Although Mrs. Binford argues that the neglect of the property and the tax delinquencies were the result of financial misconduct within the meaning of R.C. 3105.171(E)(3), the trial court was presented with evidence, in the form of Mr. Binford's testimony, that the couple was simply unable to afford the maintenance and taxes. We find no abuse of discretion in the trial court's reliance on that evidence. {¶ 11} Finally, Mrs. Binford's argument that there was insufficient evidence to prove the value of certain marital property is not persuasive. Mr. Binford was competent to testify about the value of the property,4 and it was within the trial court's discretion to accept that testimony. Accordingly, the assignment of error is overruled, and the judgment of the trial court is affirmed. {¶ 12} 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. Sundermann, P.J., Doan and Hildebrandt, JJ. 1 See Dunn v. Dunn, 1st Dist. Nos. C-010282 and C-010292, 2002-Ohio-6247, at ¶ 29. 2 See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219,450 N.E.2d 1140. 3 See Raphael v. Raphael (Nov. 19, 1999), 1st Dist. No. C-980696. 4 See Allen v. Niehaus, 1st Dist. Nos. C-000213 and C-000235, 2001-Ohio-4021.

2016-07-06 06:42:18.722319+00

This is an appeal by plaintiffs from a judgment entered by the Common Pleas Court on the motion of defendant Beatrice VanStone to strike from the files the petition of plaintiffs and entering judgment for defendants upon the ground that the court did not have jurisdiction of the subject matter of the action. From that judgment, plaintiffs appealed to this court on questions of law. The petition contains two causes of action, and the relief sought is that a trust be imposed on certain personal and real property described therein by virtue of the terms and provisions of the wills of the grandparents of plaintiffs, Thomas VanStone and Ella VanStone. In the introductory allegations of plaintiffs' petition, which are incorporated in the first and second causes of action, it is averred that Thomas VanStone died testate on January 11, 1918, leaving surviving his widow, Ella VanStone, and five children; that Ella VanStone died testate on June 28, 1925; that the wills of such decedents were duly admitted to probate and record in the Probate Court of Lucas County, Ohio; and that the estate of each was administered in that court and closed. It is alleged further that plaintiffs are the only surviving children and next of kin, respectively, of Fred *Page 408 VanStone and George VanStone, who were children of Thomas and Ella VanStone and who passed away prior to the death of their mother Ella VanStone. The wills of Thomas VanStone and Ella VanStone, and also the will of their daughter, Ethel D. VanStone (who died on July 7, 1940), were each incorporated in plaintiffs' petition, and it is alleged that by virtue of the testamentary provisions therein, the property devised and bequeathed was impressed with a trust, and that plaintiffs are the beneficiaries of the trusts so created. In determining the question of the trial court's jurisdiction of the subject matter of the action, a detailed recital of the allegations in the petition appears to be unnecessary. We call attention to the statute (Section 11309, General Code) which expressly provides that the issue of jurisdiction of the subject matter be raised by demurrer. However, without approving the practice "of making a motion to strike from the files subserve the purpose of a general demurrer" (Robinson v. Fitch, 26 Ohio St. 659,662), no good purpose would be served in remanding the case on the ground of this procedural irregularity, if on the face of the pleading, the jurisdiction or want of jurisdiction of the trial court is clearly manifest. It is apparent from an examination of the wills of Thomas and Ella VanStone that no testamentary trusts were provided for in express terms. Under such circumstances, before the devised or bequeathed property could be impressed with a trust, it must appear from the language employed that the testator so intended. It follows that it would be necessary to construe the wills and ascertain the intention of the testator before a trust could be imposed. Does the Common Pleas Court, pursuant to the Constitution and statutes, have jurisdiction to construe wills? *Page 409 The Constitution (Section 4, Article IV), does not confer jurisdiction on the Common Pleas Court directly and in specific terms. It contains the general provision that "the jurisdiction of the Courts of Common Pleas, and the judges thereof, shall be fixed by law." "It is given a capacity to receive jurisdiction * * * but it can exercise none, until `fixed by law.'" (Stevens v.State, 3 Ohio St. 453.) Section 11215, General Code, as uniformly construed by the courts, confers general jurisdiction on the Courts of Common Pleas in both law and equity. Over a period of many years, the Common Pleas Court was the only court competent to construe wills; but, in 1932, pursuant to the provisions of Section 8, Article IV of the Constitution, the Legislature, in the enactment of the Probate Code, conferred jurisdiction upon the Probate Court in 13 specific matters (Section 10501-53, General Code), including the construction of wills. This section concludes with the general provision: "Such jurisdiction shall be exclusive in the Probate Court unless otherwise provided by law. "The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute." The explicit language found in this statute clearly reveals that the Legislature intended to give to the Probate Court exclusive jurisdiction in the several matters enumerated in the statute, including the construction of wills, "unless otherwise provided by law." The general jurisdiction of the Common Pleas Court conferred by Section 11215, General Code, is modified or limited by the provisions of Section 10501-53, General Code, with respect to the specific provisions incorporated therein, including its jurisdiction to construe *Page 410 wills, in which respect the statute is repealed by implication, it being a general statute and such section being a later enactment. Unger v. Wolfe, 134 Ohio St. 69, 74,15 N.E.2d 955. However, statutes conferring specific jurisdiction on the Common Pleas Court were not repealed by implication by the enactment of the Probate Code, for the reason that such statutes are within the statutory exceptions "unless otherwise provided by law." Nahas, Admx., v. George, 153 Ohio St. 574,93 N.E.2d 5; State, ex rel. Ehmann, v. Schneider, Judge, 78 Ohio App. 27, 67 N.E.2d 117. Plaintiffs contend, however, that the jurisdiction conferred in express terms on the Probate Court to render declaratory judgments by Section 10501-53, General Code, is not exclusive, and that under the Declaratory Judgments Act (Sections 12102-1 to 12102-16, inclusive, General Code), enacted subsequent to the Probate Code, such jurisdiction is also conferred upon the Common Pleas Court. In relation to this contention, plaintiffs obtained leave in the trial court to amend their petition by striking from the prayer those paragraphs wherein plaintiffs prayed specifically that a trustee be appointed by the court to take possession of the trust assets, etc.; and at the same time they obtained leave to amend the first paragraph of the prayer by adding thereto the words: "Under the provisions of Sections 12102-1 to 12102-16, inclusive, of the General Code of Ohio." Leave to make these amendments having been granted (however, no amended petition was filed), it is now urged that the petition, as amended, states a cause of action under the Declaratory Judgments Act. As already pointed out, these amendments are related exclusively to the prayer. It appears to be uniformly recognized that the sufficiency of a pleading is determined on the basis of the facts alleged in the body of *Page 411 the pleading and that the prayer forms no part of the cause of action or defense. 31 Ohio Jurisprudence, 629, Section 80; Borchard on Declaratory Judgments (2 Ed.), 425. When a litigant asserts a right conferred by statute, the allegations in his pleading must be sufficient in substance to embrace the right conferred. It is said to be "an elementary principle in pleading that if a statute, upon certain conditions, confers a right, or gives a remedy, unknown to the common law, the party asserting the right, or availing himself of the remedy, must in his pleading bring himself clearly within the statute." 31 Ohio Jurisprudence, 573, Section 36; Borchard on Declaratory Judgments (2 Ed.), 208. The Uniform Declaratory Judgments Act expressly provides that it "is to be liberally construed and administered" (Section 12102-12, General Code) in those cases which are properly within the act. Coshocton Real Estate Co. v. Smith, 147 Ohio St. 45,67 N.E.2d 904; Schaefer v. First National Bank of Findlay,134 Ohio St. 511, 18 N.E.2d 263. It may be noted further that in Ohio it now appears to be well settled that an action for declaratory judgment may be alternative to other remedies in those cases in which the court, in the exercise of sound discretion, finds that the action is within the spirit of the Uniform Declaratory Judgments Act. However, before the question of the jurisdiction of the Common Pleas Court to enter a declaratory judgment in a given case can be determined, a petition with appropriate allegations within the letter and spirit of the act must be presented to that court. 41 American Jurisprudence, 355, Section 92. In the instant case, it is our opinion that the two causes of action set forth in plaintiffs' petition, when liberally construed, present a claim for relief grounded on equitable principles, as heretofore amenable to *Page 412 the general jurisdiction of a court of equity. To be more specific, the plaintiffs assert the claim that it was the intention of their grandfather and grandmother in making testamentary disposition of their real and personal property to impress it with a trust and that plaintiffs are among the beneficiaries of such trust. It is apparent from the petition, as amended, that before imposing a trust upon such property, it is necessary to construe the wills of such testator and testatrix. 41 Ohio Jurisprudence, 820, Section 684. As already pointed out, the Probate Court now has exclusive jurisdiction to construe wills. It follows that plaintiffs' action, as pleaded, can not be maintained in the Common Pleas Court. In view of the conclusion we have reached that plaintiffs' action, as pleaded, is not within the Uniform Declaratory Judgments Act, the questions whether such action could be brought in the Common Pleas Court under this Act and the issues adjudicated therein are not presently before us in the opinion of a majority of the court. Judgment affirmed at plaintiffs' costs. Judgment affirmed. FESS and SAVORD, JJ., concur. FESS, J., concurs on the additional ground that, although to be liberally construed, the Declaratory Judgments Act does not add to the substantive jurisdiction of either the Probate Court or the Common Pleas Court. *Page 413

2016-07-06 06:42:18.757907+00

ORIGINAL ACTION JOURNAL ENTRY AND OPINION {¶ 1} Relator, Guy J. Jarrett, is the defendant in State v.Jarrett, Cuyahoga County Court of Common Pleas Case No. CR-465241. Jarrett avers that, on August 30, 2005, "an order was made granting the defendant access to the grand jury minutes" in Case No. CR-465241. A review of the docket in Case No. CR-465241, however, reflects that, on September 1, 2005, relator filed a motion for an order to inspect grand jury minutes. In an August 30, 2005 journal entry, respondent court ordered the state to respond to the motion for an order to inspect grand jury minutes prior to the new trial date of September 7, 2005. Relator observes that there has been no order from respondent "enforcing their order," Complaint ¶ 4(A), and requests that this court issue a writ of mandamus compelling respondent "to move, enforce their previous order," Complaint ¶ 5 — that is, to provide the grand jury minutes to relator. {¶ 2} Respondent has filed a motion to dismiss attached to which is a copy of the docket in Case No. CR-465241. Jarrett has not opposed the motion. Respondent correctly observes that Jarrett entered a guilty plea and was sentenced in an entry received for filing on December 9, 2005. "[I]t is well-settled that when a motion is not ruled on, it is deemed to be denied."State v. Whitaker, Cuyahoga App. No. 83824, 2004-Ohio-5016, ¶32 (citations deleted). {¶ 3} Relator has not indicated that respondent court issued a journal entry authorizing him to inspect the grand jury minutes. In light of Whitaker, Jarrett's motion for an order to inspect grand jury minutes is deemed denied. Respondent argues that this action in mandamus is, therefore, moot. We agree. {¶ 4} The complaint also manifests various defects. "* * * Additionally, relator `did not file an R.C. 2969.25(A) affidavit describing each civil action or appeal of a civil action he had filed in the previous five years in any state or federal court and also did not file an R.C. 2969.25(C) certified statement by his prison cashier setting forth the balance in his private account for each of the preceding six months.' State exrel. Hunter v. Cuyahoga Cty. Court of Common Pleas (2000),88 Ohio St. 3d 176, 177, 724 N.E.2d 420, 421. As a consequence, we deny relator's claim of indigency and order him to pay costs.Id. at 420." State ex rel. Bristow v. Sidoti (Dec. 1, 2000), Cuyahoga App. No. 78708, at 3-4. Likewise, in this action, relator has failed to support his complaint with the affidavit required by R.C.2969.25(A), we deny his claim of indigency and order him to pay costs. We also note that the fact that the purported affidavit of indigency is not notarized, which also requires that we deny his claim of indigency. State, ex rel McGrath v. McDonnell, Cuyahoga App. No. 87368, 2006-Ohio-535, at ¶ 3. {¶ 5} Additionally, "[t]he failure to comply with R.C.2969.25 warrants dismissal of the complaint for a writ of mandamus. State ex rel. Zanders v. Ohio Parole Board (1998),82 Ohio St. 3d 421, 696 N.E.2d 594 and State ex rel. Alford v.Winters (1997), 80 Ohio St. 3d 285, 685 N.E.2d 1242." State exrel. Hite v. State, Cuyahoga App. No. 79734, 2002-Ohio-807, at 6. Similarly, relator has failed to comply with Loc.App.R. 45(B)(1)(a) which requires that complaints in original actions be supported by an affidavit from the plaintiff or relator specifying the details of the claim. State ex rel. Hightower v.Russo, Cuyahoga App. No. 82321, 2003-Ohio-3679. {¶ 6} Jarrett "also failed to include the address of the parties in the caption of the complaint as required by Civil Rule 10 (A). This may also be grounds for dismissing the action.State ex rel. Sherrills v. State (2001), 91 Ohio St. 3d 133,742 N.E.2d 651." State ex rel. Hall v. Calabrese (Aug. 16, 2001), Cuyahoga App. No. 79810, at 2. {¶ 7} Accordingly, respondent's motion to dismiss is granted. Relator to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the {¶ 8} journal. Civ.R. 58(B). Complaint dismissed. Karpinski, J., Concurs. Kilbane, J., Concurs.

2016-07-06 06:42:18.816062+00

OPINION {¶ 1} Defendant-appellant, John M. Ramby, appeals a decision of the Warren County Court of Common Pleas awarding judgment in favor of plaintiff-appellee, Daniel P. Morgan, on claims of contribution, breach of fiduciary duty, and breach of employment agreement. For the reasons outlined below, we affirm in part, reverse in part, and remand. *Page 2 {¶ 2} On September 2, 1999, Ramby and Morgan executed a Close Corporation Agreement ("CCA") whereby they formed United Builders, Inc. ("United"). Each acquired 50 percent of the stock in the corporation. In exchange for their respective 50 percent interests, Morgan agreed to initially finance United while Ramby agreed to provide "sweat equity," or, in other words, to run the day-to-day operations of the corporation. The CCA appointed Ramby to the position of president and chief executive officer ("CEO") and Morgan to the positions of treasurer, secretary, and chief financial officer. The CCA also provided that, in lieu of a board of directors, each shareholder would be liable for managerial acts just as a director is liable for actions taken by the full board. {¶ 3} Ramby and Morgan executed separate employment agreements with United on September 21, 1999. In accordance with his agreement, Ramby agreed to perform duties and functions determined by United from time to time as customarily assigned to the position of CEO. The agreement also provided that Ramby would devote 50 percent of his working time and efforts to United. In addition, the agreement contained clauses prohibiting Ramby from competing with United or hiring its employees. Finally, the terms of the agreement permitted United to recover actual damages caused by any failure, refusal, or neglect by Ramby to perform his duties under the agreement. {¶ 4} The following financial dealings are also relevant to this appeal. Morgan loaned $300,000 in cash to United, as evidenced by a Commercial Mortgage Note ("Note") executed on September 22, 1999. Ramby did not personally guarantee the Note, but signed it in his capacity as president of United. Morgan and Ramby treated the Note as a temporary, short-term revolving line of credit with Morgan advancing money as needed and the balance paid down as monies became available. {¶ 5} United obtained two separate National City Bank Visa cards, one of which was personally guaranteed by Ramby and the other by Morgan. Morgan submitted payments *Page 3 totaling nearly $7,000 towards Ramby's Visa to keep the account current. In January 2004, Morgan negotiated a settlement with National City under which Ramby would pay $0.40 on the dollar. Ramby paid off the Visa in January 2007. {¶ 6} Morgan testified that he used his National City Bank Visa to cover expenditures for day-to-day operations of United. The company acquired an additional credit card from MBNA, which Morgan alone personally guaranteed and which he also used for United's day-to-day operations. Morgan satisfied both his Visa account and the MBNA account on his own, with no contribution from Ramby. {¶ 7} United also obtained a National City Bank line of credit in the amount of $25,000, which was advanced to the corporate bank account for operations. Both Morgan and Ramby personally guaranteed the line of credit. Morgan insists that he contributed more than his one-half share in order to extinguish the line of credit debt. United also obtained a credit card from Advanta, which Morgan alone personally guaranteed. Morgan used the Advanta card to pay down the National City line of credit by transferring a portion of the debt to the Advanta card to take advantage of its lower interest rate. Morgan paid off the entire balance on the Advanta card. {¶ 8} According to Morgan, Ramby separated himself from United by his actions in June 2002 but failed to resign his employment or return his ownership interest in United. Morgan maintains that Ramby refused to manage projects and works in progress, failed to pay vendors and suppliers, failed to aid Morgan in defending lawsuits against United that related to work Ramby was responsible for managing, and interfered in Morgan's attempts to salvage United. {¶ 9} On December 19, 2005, Morgan filed a complaint against Ramby alleging causes of action for contribution, breach of employment agreement, breach of fiduciary duty, tortuous interference with business relations, and unjust enrichment. Ramby filed an answer *Page 4 and counterclaim on March 23, 2006. Ramby filed a motion to dismiss for lack of subject matter jurisdiction on October 30, 2007, which the trial court denied. {¶ 10} A bench trial was scheduled for November 5-6, 2007. On the morning of November 5, 2007, Ramby filed a motion for reconsideration of his motion to dismiss. The trial court orally denied the motion. Ramby then orally requested a continuance so that he could petition the appellate court for a writ of prohibition. The trial court denied the continuance. Ramby and his counsel left the courtroom to pursue the writ of prohibition, and the bench trial proceeded without Ramby. {¶ 11} The trial court issued its decision on November 28, 2007, finding in favor of Morgan on his claims of breach of employment agreement, breach of fiduciary duty, and contribution. The court awarded Morgan damages in the amount of $523,832.97. This amount included reimbursement for one half of cash advances paid by Morgan to United, plus interest; one half of personally guaranteed credit card debt, plus interest; and legal fees related to litigation involving United as a party.1 Ramby timely appeals, raising six assignments of error. {¶ 12} Assignment of Error No. 1: {¶ 13} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-RAMBY BY ENTERING A JUDGMENT HOLDING DEFENDANT-RAMBY, AN INDIVIDUAL SHAREHOLDER, PERSONALLY LIABLE FOR CASH ADVANCES MADE TO THE CORPORATION BY ANOTHER SHAREHOLDER, WITHOUT FACTS OR LAW TO SUPPORT SUCH A HOLDING." {¶ 14} Assignment of Error No. 2: {¶ 15} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-RAMBY *Page 5 BY ENTERING A JUDGMENT HOLDING DEFENDANT-RAMBY, AN INDIVIDUAL SHAREHOLDER, PERSONALLY LIABLE FOR CORPORATE CREDIT CARD DEBT THAT WAS PERSONALLY GUARANTEED BY ANOTHER SHAREHOLDER, WITHOUT FACTS OR LAW TO SUPPORT SUCH A HOLDING." {¶ 16} Assignment of Error No. 3: {¶ 17} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-RAMBY BY ENTERING A JUDGMENT HOLDING DEFENDANT-RAMBY, AN INDIVIDUAL SHAREHOLDER, PERSONALLY LIABLE FOR LEGAL FEES ASSOCIATED WITH THE CORPORATION'S LITIGATION, WITHOUT FACTS OR LAW TO SUPPORT SUCH A HOLDING." {¶ 18} Because Ramby's first three assignments of error are interrelated, we shall address them together. Ramby's first assignment of error argues that he cannot be held personally liable for the cash advances made to United by Morgan because he obligated himself to contribute only sweat equity, not capital. According to Ramby, Morgan's cash contributions to the corporation, other than the initial capital investment, were voluntary. Ramby also disclaims any personal liability for the $300,000 loan made to United by Morgan because he signed the Note in his representative capacity as corporate president only, and did not personally guarantee payment on the Note. {¶ 19} Ramby's second assignment of error contends that he cannot be held personally liable for one half of the credit card debt incurred by United using credit accounts that were personally guaranteed by Morgan only. He also emphasizes the fact that the sole credit card personally guaranteed by him, the National City Visa, had been fully paid by the time of trial, and maintains that any payments made towards the balance of that card by Morgan were voluntary. {¶ 20} Ramby's third assignment of error asserts that he cannot be held personally *Page 6 liable for the legal fees associated with litigation involving United as a party because these fees are solely United's debts. {¶ 21} First, we examine some principles of Ohio corporate law that are relevant to this case. A close corporation, such as United, is a corporation with relatively few shareholders and whose corporate shares are not generally traded on a securities market. Crosby v. Beam (1989),47 Ohio St. 3d 105, 107. It is well settled that shareholders in a close corporation owe one another a fiduciary duty to act in good faith. See id. at 107-08. See, also, Herbert v. Porter, 165 Ohio App. 3d 217,2006-Ohio-355, ¶ 12. In close corporations possessing both majority and minority shareholders, this fiduciary duty is heightened.Crosby at 108; Herbert at ¶ 12. Because Ramby and Morgan are equal shareholders, however, this heightened standard is not applicable to the present matter. Id. at ¶ 13. Thus, Ramby and Morgan owed one another an ordinary fiduciary duty as shareholders in a close corporation. {¶ 22} Further complicating this case is the fact that the fiduciary duty owed between shareholders in a close corporation differs from the fiduciary duty owed by an officer or director of a corporation. Directors owe a fiduciary duty to the corporation and to the shareholders, collectively. Thompson v. Cent. Ohio Cellular, Inc. (1994), 93 Ohio App. 3d 530, 540. This entails a duty of good faith, a duty of loyalty, a duty to refrain from self-dealing, and a duty of disclosure. Wing Leasing, Inc. v. M B Aviation, Inc. (1988),44 Ohio App. 3d 178, 181. See, also, R.C. 1701.59(B) and 1701.60(A)(1). A breach of this duty exposes the director to liability for damages where clear and convincing evidence establishes that the director acted with deliberate intent to cause injury to the corporation or recklessly disregarded the corporation's best interests. R.C. 1701.59(D). The trial court's decision found that Ramby violated his fiduciary duty as an officer and director of United, and the court's decision employed a clear and convincing evidence standard. {¶ 23} Of note is the fact that the present matter is a direct action brought by Morgan *Page 7 in his individual capacity, not a derivative action brought by Morgan on behalf of United. Consequently, it does not appear that Morgan may recover directly for any breach of fiduciary duty committed by Ramby in his capacities as officer and director. Generally, a director's breach of fiduciary duty is said to harm the corporation and, accordingly, damages resulting from such a breach inure to the corporation. GrandCouncil of Ohio v. Owens (1993), 86 Ohio App. 3d 215, 220-21. See, also,Adair v. Wozniak (1986), 23 Ohio St. 3d 174, 177-78. The exception to this general rule is that a shareholder may bring an action for an injury suffered by the corporation where (1) there is a special duty, such as contractual, between the wrongdoer and the shareholder, or (2) the shareholder suffered an injury separate and distinct from that suffered by other shareholders. Hershman's, Inc. v. Sachs-DolmarDiv. (1993), 89 Ohio App. 3d 74, 77. {¶ 24} At trial, the trial court should have limited Morgan's recovery to any breach of fiduciary duty owed directly by Ramby to Morgan, unless the court finds legal and factual support upon which to otherwise premise personal liability under the facts and circumstances of this case. See Adair at 176 (observing that a shareholder may recover for injuries sustained by, or wrongs done to, the corporation "where the wrongful acts are not only against the corporation but are also violations of a duty arising from contract or otherwise owed directly by the wrongdoer to the shareholder"); Hershman's at 77. {¶ 25} Similarly, Morgan may only recover for breach of contract where he was a party to or an intended third-party beneficiary of the contracts upon which Ramby's breaches are premised. Kappes v. Village ofMoscow (May 4, 1998), Clermont App. No. CA97-09-078, at 4-5. Both Morgan and Ramby were parties to the CCA, therefore Morgan may recover where there is evidence that Ramby breached the CCA. However, Morgan was neither a party to nor a named third-party beneficiary of Ramby's employment agreement with United. Therefore, Morgan may not directly recover for any breaches of Ramby's employment *Page 8 agreement unless the trial court is able to decipher legal and factual support upon which to premise personal liability under the facts and circumstances of this case. {¶ 26} Morgan presented evidence at trial regarding Ramby's poor job performance. It is not clearly discernable from the record or the trial court's decision, however, which fiduciary and contractual duties the court relied upon in rendering judgment in favor of Morgan. Ramby correctly points out in his appellate brief that Morgan interchangeably discusses the duties owed by Ramby to United with those owed by Ramby to Morgan, without making any distinction between them. See, e.g.,Aschinger v. Columbus Showcase Co. (C.A.6, 1991), 934 F.2d 1402, 1407. The difficulty lies in the fact that Ramby acted in a number of different roles for United including employee, shareholder, officer, and director. Morgan, the sole plaintiff in this action, may only recover for breaches of fiduciary and contractual duty which Ramby owed directly to him. This will require the trial court to properly develop the record by forging legal and factual bases between the duties owed by Ramby directly to Morgan and the relevant breaches of duty committed by Ramby, if any. {¶ 27} It is also unclear which of Ramby's breaches of duty the trial court relied upon in calculating the damages award. "It is well established that principles of compensation provide the measure and limit for damage recoveries." Spalding v. Coulson (Sept. 3, 1998), Cuyahoga App. Nos. 70524, 70538, 1998 WL 564054, at *9. Do these principles of compensation compel the conclusion that Ramby's breaches of contract and fiduciary duty permit reimbursement for half of Morgan's cash advances, credit debt, and legal fees? The record, as it stands, provides only a vague nexus between Ramby's alleged breaches and the damages awarded. "In general, the damages that may be recovered in a civil action are * * * such only as are the natural and probable consequences of a tortious act or breach of contract on the part of the defendant * * *." 30 Ohio Jurisprudence 3d (1999) 21, Damages, Section 14. The trial court thus must properly develop the record by establishing adequate *Page 9 legal and factual bases between Ramby's breaches of fiduciary duty and contract, if any, and the damages naturally and probably resulting from these breaches, if any. {¶ 28} Ramby's first, second, and third assignments of error are sustained. {¶ 29} Assignment of Error No. 4: {¶ 30} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-RAMBY BY ENTERING A JUDGMENT IN A CASE IN WHICH THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION." {¶ 31} Ramby urges this court to vacate the judgment of the trial court on the basis that the trial court lacked subject matter jurisdiction over the matter. In support, Ramby cites section 11.04 in his employment agreement, which states: "Employee consents to personal jurisdiction in the courts of Ohio and hereby agrees that the Montgomery County, Ohio, Court of Common Pleas shall be the exclusive forum for the resolution of disputes arising under or relating to this Agreement." Ramby insists that this provision vests subject matter jurisdiction exclusively in the Montgomery County Court of Common Pleas. {¶ 32} Subject matter jurisdiction refers to a court's power to adjudicate a case upon its merits. Pratts v. Hurley, 102 Ohio St. 3d 81,2004-Ohio-1980, ¶ 11. The issue of subject matter jurisdiction may be challenged at any point during a case. Id. Conversely, the failure to timely raise a challenge to venue results in a waiver of that issue.Durrah v. Durrah, Butler App. No. CA2005-06-144, 2006-Ohio-2138, ¶ 12; Civ. R. 12(H). Venue refers to the geographic locality in which an action should be heard. Morrison v. Steiner (1972), 32 Ohio St. 2d 86, 87. Improper venue does not deprive a court of its jurisdiction to hear an action. State ex rel. Florence v. Zitter, 106 Ohio St. 3d 87,2005-Ohio-3804, ¶ 23. {¶ 33} Ramby attempts to salvage his untimely objection by wording it in terms of subject matter jurisdiction rather than venue. The plain language of the forum selection clause in section 11.04 of Ramby's employment agreement clearly describes the geographic *Page 10 locality where disputes pertaining to the employment agreement should be heard. Cf. Stocklas v. Erie Ins. Grp. (Oct. 10, 1997), Lake App. No. 96-L-186, 1997 WL 665980, at *2. This provision thus establishes the proper venue, not subject matter jurisdiction. Because Ramby failed to timely challenge venue in a pre-pleading motion or in his answer, the issue was waived. Durrah at ¶ 12. {¶ 34} Ramby's fourth assignment of error is overruled. {¶ 35} Assignment of Error No. 5: {¶ 36} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-RAMBY BY DENYING DEFENDANT-RAMBY'S MOTION FOR A CONTINUANCE OF TRIAL." {¶ 37} Assignment of Error No. 6: {¶ 38} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-RAMBY BY ENTERING A JUDGMENT WITHOUT DEFENDANT-RAMBY'S PARTICIPATION IN A TRIAL ON THE MERITS." {¶ 39} In his fifth assignment of error, Ramby insists that the trial court abused its discretion in denying his motion for a continuance on the morning of trial. In his sixth assignment of error, Ramby claims that the trial court's denial of his continuance essentially deprived him of his right to participate in the trial on the merits. Due to the fact that we are remanding for a new trial, Ramby's fifth and sixth assignments of error have been rendered moot by our disposition of his first, second, and third assignments of error. See App. R. 12(A)(1)(c). {¶ 40} The portion of the trial court's decision denying Ramby's counterclaim is affirmed, as that issue was not appealed. The portion of the trial court's decision awarding judgment in favor of Morgan is reversed, and the matter is remanded for a new trial on the merits. *Page 11 {¶ 41} Judgment affirmed in part, reversed in part, and remanded. BRESSLER, J., concurs. WALSH, P.J., dissents without written opinion. 1 This portion of the award did not include legal fees for Morgan's current lawsuit against Ramby. *Page 1

2016-07-06 06:42:18.966617+00

Decision and Journal Entry {¶ 1} Defendant, Aaron Basford, appeals from the judgment of the Medina County Common Pleas Court that found him guilty of aggravated vehicular assault in violation of R.C. 2903.08. We affirm. {¶ 2} On October 22, 2002, both Defendant and the victim, Michael Peaco ("Peaco") were in a local Brunswick sports bar. After Peaco threw a cigarette into Defendant's face, Defendant got to his feet and began fighting with Peaco. Employees escorted Defendant from the establishment where he soon drove off in his minivan. After a phone call to the bar, allegedly from Defendant, stating that Peaco was "a marked man," Peaco went out of the bar to check on his car. While in the parking lot, Defendant returned in his minivan, driving straight for Peaco. Peaco had a golf club in the front seat of his car. He drew it out quickly, and swung it at Defendant's minivan as Defendant circled threateningly around Peaco in the parking lot. Two times Peaco struck Defendant's car with the club. Then Defendant drove straight at Peaco, striking Peaco with the front passenger side of the minivan. Peaco sustained various injuries, including a broken leg and ankle, from the incident. {¶ 3} Defendant was indicted for felonious assault under R.C.2903.11 and aggravated vehicular assault under R.C. 2903.08. On February 14, 2003, a jury found Defendant guilty of aggravated vehicular assault, but not guilty of felonious assault. Defendant timely appeals, raising two assignments of error for review. Assignment of Error I "The trial court erred in admitting evidence of [Defendant's] other crimes, wrongs or acts to the prejudice of [Defendant]." ¶ 4Defendant first argues that the trial court's admission of evidence relating to an alleged prior breaking, entering, and theft by Defendant was prejudicial. Specifically, the trial court permitted Peaco to testify that he believed that Defendant had broken into his car and stolen some of his possessions a few years before. The trial court, Defendant asserts, abused its discretion by admitting such character evidence under Evid.R. 404(B). We disagree. {¶ 5} A trial court has broad discretion concerning the admission of evidence. State v. Issa (2001), 93 Ohio St.3d 49, 64. An appellate court may disturb the trial court's ruling only when confronted with an abuse of discretion. Id. Defendant challenges this evidence under Evid.R. 404(B) which states that "[e]vidence 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." The rule continues to say that the evidence "may * * * be admissible for other purposes, such as proof of motive, opportunity, intent, plan, knowledge, identity, or absence of mistake or accident." Evid.R. 404(B). The rule only prohibits use of character evidence when it is used to show that a person acted in conformity with the offered evidence. State v. Webb (1994),70 Ohio St.3d 325, 340. When it is not offered to prove conformity, but is instead offered to prove, for example, motive, it is generally admissible. See State v. Prade (2000), 139 Ohio App.3d 676, 685 (permitting testimony regarding past taping of phone calls to show history of jealousy, possessiveness and control over the victim); State v.Cerveniak (June 19, 1991), 9th Dist. No. 90CA004860, at 9 (permitting admission of evidence of prior stalking and threats against victim to prove intent and motive). {¶ 6} In the case at bar, testimony regarding the prior alleged theft and breaking and entering of Defendant into Peaco's car was not offered to show conformity. Rather, the State offered the evidence to show the prior animosity that existed between Defendant and Peaco culminating in the current confrontation between the two men. Peaco testified that he feared for his car because of his belief that Defendant had previously entered his car and stolen possessions from within. In isolation, without this explanation, Peaco's vociferous protection of his vehicle with a golf club, and Defendant's return to the restaurant to confront Peaco for throwing a cigarette in his face, make little sense. The character evidence is necessary to explain the existing animosity between Defendant and Peaco, not to show that Defendant acted in conformity with the alleged prior act. The trial court did not abuse its discretion. Defendant's first assignment of error is overruled. Assignment of Error II "[Defendant's] conviction must be reversed as [Defendant] received ineffective assistance of counsel at trial." {¶ 7} In Defendant's second assignment of error, he argues that he was denied effective assistance of counsel. Specifically, Defendant states that trial counsel virtually admitted to the aggravated vehicular assault charge during closing argument. Defendant further claims that this admission was not trial strategy because evidence existed showing that Defendant did not have the required mens rea necessary to commit aggravated vehicular assault. Defendant's allegations are without merit. {¶ 8} In evaluating an ineffective assistance of counsel claim, this court employs a two step process as described in Strickland v.Washington (1984), 466 U.S. 668, 687, 80 L.Ed.2d 674. First, the court must determine whether there was a "substantial violation of any of defense counsel's essential duties to his client." State v. Bradley (1989), 42 Ohio St.3d 136, 141; State v. Lytle (1976), 48 Ohio St.2d 391,396. Licensed attorneys are presumed competent in Ohio. Lytle,48 Ohio St.2d at 397. Defendant must overcome the "presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, quoting Michel v. Louisiana (1955), 350 U.S. 91, 101. {¶ 9} Second, the court must determine if prejudice resulted to Defendant from counsel's ineffectiveness. Bradley,42 Ohio St.3d at 141-42. Prejudice exists where the trial result would have been different but for the alleged deficiencies of counsel. Id. at paragraph three of the syllabus. Defendant bears the burden of proof, and must show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." State v. Colon, 9th Dist. No. 20949, 2002-Ohio-3985, at ¶ 48-49, quoting Strickland,466 U.S. at 687. {¶ 10} This court need not address both elements in any particular order — if we find there was no prejudice to Defendant by defense counsel's acts, we need not address whether defense counsel's acts were actually deficient. See Bradley, 42 Ohio St.3d at 143. In fact, the Ohio Supreme Court has instructed that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice * * * that course should be followed." Id. In this case, we find that there was not sufficient prejudice to Defendant to support a claim of ineffective assistance of counsel. {¶ 11} The State presented multiple witnesses who described the incident in detail. The Defendant chose not to present any evidence in defense. Given the amount of uncontroverted evidence against Defendant, we can not say that Defendant was prejudiced by defense counsel's virtual admission during closing argument. Defense counsel's trial strategy of admitting to a lesser offense to avoid conviction on the greater worked in this case. Such trial strategy by defense counsel has been upheld as within the permissible gambit of defense counsel's choices. See State v.Foster (Dec. 22, 1994), 4th Dist. No. 94-CA-4 (finding defense counsel's virtual admission to lesser included offenses during closing was not ineffective assistance); State v. Smith (1991), 75 Ohio App.3d 73, 75-76 (determining that defense counsel's admissions regarding smoking, ownership, and possession of marijuana during opening statement and closing argument was sound trial strategy and not ineffective assistance of counsel). We find defense counsel in this case was not ineffective. In fact, in this case the trial strategy worked to avoid a conviction on the greater felonious assault charge. Defendant's second assignment is thereby overruled. {¶ 12} Defendant's assignments of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed. Judgment affirmed. BAIRD, J., CARR, J. CONCUR.

2016-07-06 06:42:18.911445+00

{¶ 1} In State v. Hooks, Cuyahoga County Court of Common Pleas Case No. CR-474577, applicant was convicted of murder with one-year, three-year and five-year specifications as well as of having a weapon while under disability. This court affirmed that judgment in State v.Hooks, Cuyahoga App. No. 88713, 2007-Ohio-5944. Hooks did not appeal to the Supreme Court of Ohio. {¶ 2} Hooks has filed with the clerk of this court a timely application for reopening. He asserts that he was denied the effective assistance of appellate counsel because his appellate counsel failed to assign as error that: 1) "the prosecutor purposely and knowingly used perjured testimonies from two state witnesses"; 2) "The Court erred to the prejudice of Appellant by failing to instruct the jury about the lesser included offense of Involuntary Manslaughter"; and 3) "The Trial Court violated Appellant's Due Process rights by failing to submit a Special Interrogatory to the jury on the issue of the existence of specific intent to cause the death of another." Application, at 5 (capitalization in original). We deny the application for reopening. As required by App. R. 26(B)(6), the reasons for our denial follow. {¶ 3} Having reviewed the arguments set forth in the application for reopening in light of the record, we hold that applicant has failed to meet his burden to demonstrate that "there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." App. R. 26(B)(5). In State v. Spivey (1998),84 Ohio St. 3d 24, 1998-Ohio-704, 701 N.E.2d 696, the Supreme *Page 2 Court specified the proof required of an applicant. "In State v.Reed (1996), 74 Ohio St. 3d 534, 535, 660 N.E.2d 456, 458, we held that the two prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, is the appropriate standard to assess a defense request for reopening under App. R. 26(B)(5). [Applicant] must prove that his counsel were deficient for failing to raise the issues he now presents, as well as showing that had he presented those claims on appeal, there was a `reasonable probability' that he would have been successful. Thus [applicant] bears the burden of establishing that there was a `genuine issue' as to whether he has a `colorable claim' of ineffective assistance of counsel on appeal." Id. at 25. Applicant cannot satisfy either prong of the Strickland test. We must, therefore, deny the application on the merits. {¶ 4} In his first proposed assignment of error, Hooks complains that prosecutorial misconduct led to his conviction. He contends that the state "knowingly and intelligently" presented two state's witnesses who lied. Hooks argues that the testimony of each of these witnesses demonstrates that they could not have seen the person who committed this murder. The state correctly observes, however, that — on direct appeal — this court rejected the assignment of error asserting that the verdict was against the manifest weight of the evidence. Additionally, this court specifically examined the evidence identifying Hooks as the perpetrator and concluded that "the trier of fact did not lose its way and create a manifest miscarriage of justice. Further, the amount of reliable and consistent evidence presented by the state outweighed any inconsistencies in testimony and *Page 3 substantially supported each conviction." Cuyahoga App. No. 88713,2007-Ohio-5944, at TJ60-61. Applicant's first proposed assignment of error does not, therefore, provide a basis for reopening. {¶ 5} In his second proposed assignment of error, Hooks asserts that the trial court should have instructed "the jury about the lesser included offense of Involuntary Manslaughter." Application, at 5. "[A]n instruction is not warranted every time any evidence is presented on a lesser included offense. There must be `sufficient evidence' to `allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser included (or inferior-degree) offense.' (Emphasis sic.) State v. Shane, 63 Ohio St.3d at 632-633, 590 N.E.2d 272."State v. Conway, 108 Ohio St. 3d 214, 2006-Ohio-791, 842 N.E.2d 996, at 1J134 (affirming the refusal of the trial court to instruct the jury on involuntary manslaughter in a case in which the appellant was convicted of aggravated murder). {¶ 6} As the state correctly observes, Hooks does not provide this court with any authority in support of this assignment of error nor does he cite to any portions of the transcript in support of his assertion that an instruction on involuntary manslaughter as a lesser included offense would be appropriate. Rather, at trial, "[t]he state and defense agreed to add the lesser included offense of murder, in violation of R.C. 2903.02(A), with one-, three-, and five-year firearm specifications." Cuyahoga App. No. 88713, 2007-Ohio-5944, at T|38. Hooks has not, therefore, demonstrated that there is a genuine issue whether his appellate counsel was *Page 4 ineffective for failing to assign as error the absence of a jury instruction on involuntary manslaughter. {¶ 7} In his third proposed assignment of error, Hooks contends that the trial court erred by failing to submit a special interrogatory to the jury on whether he had the specific intent to cause the death of another. Hooks does not, however, identify any portion in the record at which a special interrogatory was requested or provide this court any authority requiring an interrogatory. As a consequence, he has not demonstrated either that his appellate counsel's performance was deficient or that he was prejudiced by the absence of an assignment of error asserting that the trial court should have submitted to the jury interrogatory regarding his intent. {¶ 8} Accordingly, the application for reopening is denied. PATRICIA A. BLACKMON, J., and MELODY J. STEWART, J., CONCUR *Page 1

2016-07-06 06:42:18.994158+00

DECISION AND JUDGMENT ENTRY This matter is before the court pursuant to our previous grant of defendant-appellant Darrell Brown's application to reopen his appeal concerning his conviction for receiving stolen property. Appellant was indicted on November 25, 1996, on one count of receiving stolen property, in violation of R.C. 2913.51. On July 8, 1997, a jury trial was held and appellant was found guilty. On August 11, 1997, a sentencing hearing was held. On August 15, 1997, the trial court filed its judgment entry which ordered appellant to serve one year in prison, pay restitution in the amounts of $500 to the victim and $128.90 to American Insurance Company, and pay all prosecution and court appointed counsel costs and fees. Appellant then filed a notice of appeal on September 12, 1997. On direct appeal, appellant set forth three assignments of error, none of which addressed issues relative to sentencing. This court found all assignments of error not well-taken and affirmed the trial court. State v. Brown (Sept. 4, 1998), Lucas App. No. L-97-1332, unreported. On December 3, 1998, appellant filed an application to reopen his appeal pursuant to App.R. 26(B) and this court granted his application. In this appeal, appellant asserts the following assignments of error: "FIRST ASSIGNMENT OF ERROR "THE TRIAL COURT COMMITTED PLAIN ERROR IN ORDERING MR. BROWN TO PAY RESTITUTION. (Sent. T.p. 9; Judgment Entry). "SECOND ASSIGNMENT OF ERROR "THE TRIAL COURT COMMITTED PLAIN ERROR BY ORDERING MR. BROWN TO PAY COURT-APPOINTED-COUNSEL [SIC.] FEES. (Judgment Entry). "THIRD ASSIGNMENT OF ERROR "THE TRIAL COURT FAILED TO COMPLY WITH REVISED CODE SECTION 2929.19(B)(3)(B), (C) AND (E) AT MR. BROWN'S SENTENCING HEARING. (Sent. T.p. 2-17). "FOURTH ASSIGNMENT OF ERROR "MR. BROWN WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. (Sent. T.p. 2-17; Judgment Entry). In appellant's first assignment of error, he contends that the trial court erred when it ordered him to pay restitution absent any evidence of the amount claimed and absent a finding of appellant's ability to pay. At the time of sentencing, appellant's trial counsel failed to object to the order. Preliminarily, we note that an appellate court need not consider an error which appellant failed to bring to the trial court's attention through an objection. See Crim.R. 52(B). However, a court should take notice of such errors where, "but for the error, the outcome of the trial clearly would have been different."State v. Long (1978), 53 Ohio St. 2d 91, 97. R.C. 2929.18(A) provides that a trial court may order an offender to pay restitution to the victim of the offender's crime "* * * in an amount based on the victim's economic loss." In an order of restitution, the amount of restitution must bear a reasonable relationship to the loss suffered. State v. Marbury (1995), 104 Ohio App. 3d 179, 181. Thus, restitution is limited to the actual loss caused by the defendant's criminal conduct for which he was convicted. State v. Brumback (1996), 109 Ohio App. 3d 65,82. There must be competent and credible evidence in the record from which the court may ascertain the amount of restitution to a reasonable degree of certainty. Id. at 83; Statev. Warner (1990), 55 Ohio St. 3d 31, 69; State v. King (Feb. 27, 1998), Wood App. No. WD-97-015, unreported. Where the amount of restitution ordered does not bear a reasonable relationship to the loss suffered, the outcome of the trial as to restitution clearly would have been otherwise and therefore amounts to plain error. State v. Johnson (June 30, 1999), Auglaize App. No. 2-98-39, unreported; State v. Clark (June 19, 1998), Greene App. No. 97-CA-27, unreported. In the present case, the record is devoid of evidence to support the trial court's restitution award. At appellant's August 11, 1997 sentencing hearing, the following discussion took place: "THE COURT: * * *. "Now in this matter, you have also destroyed property, and it will be ordered that you make restitution to Mr. Carl Housley [the victim] in the amount of $500.00, and to the Westfield National Insurance Company in the amount of $1928.07 for property destroyed in the course of this offense. "Anything further:? "MR. RILEY: Your Honor, as it relates to the restitution, I think Mr. Housley testified there was only damage, if any, done to the window. "We asked the Probation Department — THE COURT: He also stole some — how many gallons of paint was it? "MR. RILEY: No — "THE DEFENDANT: Gallons of paint? "THE COURT: Yeah. Do you remember Mr. Housley went into the paint store to pick up eighty gallons of paint, which went by the way? "Anyway, that's the order." Upon review of the trial transcript we find, as appellant's trial counsel stated at the sentencing hearing, that the only reference to the victim's economic loss was the cracked windshield of his pick-up truck. No monetary value was assigned to the damage.1 Further, the trial testimony does not support the trial court's assertion that appellant stole paint from the victim's vehicle. The victim testified that his vehicle was stolen when he went into the paint store in order to retrieve the paint. Thus, since the paint was not in the vehicle when it was stolen, appellant could not have acquired the paint when he obtained the vehicle. Based upon the foregoing, we find that because the record is devoid of competent, credible evidence from which the trial court could ascertain the actual economic damages suffered by the victim, the trial court erred in ordering appellant to pay restitution. Accordingly, appellant's first assignment of error is well-taken. In his second assignment of error, appellant argues that the trial court erred by ordering appellant to pay court-appointed counsel fees. Specifically, appellant argues that the trial court erroneously ordered appellant to pay court-appointed counsel costs without first making a finding as to appellant's ability to pay as required under R.C. 2941.51(D). R.C. 2941.51(D) provides, in part: "The fees and expenses * * * shall not be taxed as part of the costs and shall be paid by the county. However, if the person represented has, or reasonably may be expected to have, the means to meet some part of the cost of the services rendered to him, he shall reimburse the county in an amount that he reasonably can be expected to pay." In Galion v. Martin (Dec. 12, 1991), Crawford App. No. 3-91-6, unreported, the Third Appellate District addressed this issue and held that: "[A]n indigent defendant may properly be required to pay his attorney fees only after the court makes an affirmative determination on the record in the form of a journal entry, that the defendant has, or reasonably may be expected to have, the means to pay all or some part of the cost of the legal services rendered to him. The court must then enter a separate civil judgment for the attorney fees or any part thereof that the court finds the defendant has the ability to repay. The court may not imprison the defendant in order to compel him to pay the civil judgment of the attorney fees." See State v. Burns (Mar. 15, 1999), Marion App. No. 9-98-21, unreported; State v. Watkins (1994), 96 Ohio App. 3d 195, 198. In the present case the trial court made no determination on the record that appellant was able to pay for his court-appointed counsel. Accordingly, we find appellant's second assignment of error well-taken. Appellant next argues that the trial court erred at sentencing when it failed to notify appellant, pursuant to R.C. 2929.19(B)(3)(b), (c) and (e), that he is subject to the "bad time" provisions under R.C. 2967.11 and post-release control under R.C. 2967.27.2 This court addressed a similar issue in State v. Sanchez (Oct. 22, 1999), Ottawa App. No. OT-99-014, unreported. InSanchez, appellant argued that the trial court failed to notify him of the bad time provisions. We determined that the trial court failed to comply with the sentencing requirements under R.C.2929.19(B), despite a written plea form acknowledging notification of the postconviction provisions at the plea hearing, because the trial court made no reference to prior discussion of the postconviction issues at the time of sentencing. In the instant case, the evidence of notification is even less compelling than Sanchez. The judgment entry does state that "[d]efendant has been given notice under R.C. 2929.19(B)(3);" however, evidence of notification is absent from the record. Thus, we find that the trial court failed to satisfy the notice requirement of R.C. 2929.19(B). Accordingly, appellant's third assignment of error is well-taken. In appellant's fourth and final assignment of error, he argues that trial counsel was ineffective based upon his previous assignments of error. Based upon our rulings in the first three assignments of error, we find appellant's claim of ineffective assistance of counsel moot. Accordingly, appellant's fourth assignment of error is not well-taken. On consideration whereof, we find that appellant was prejudiced or prevented from having a fair trial and the judgment of the Lucas County Court of Common Pleas is reversed as to the restitution order and order to pay court-appointed counsel fees. We further find that the sentence imposed by the trial court in this case is vacated, and this case is remanded for resentencing in accordance with the requirements of R.C. 2929.19. Appellee is ordered to pay the court 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., _______________________________ Mark L. Pietrykowski, J., JUDGE CONCUR. 1 Additionally, the trial court's order at sentencing differs from the journalized judgment entry. At sentencing, the trial court ordered that appellant pay $1928.07 to Westfield National Insurance Company; however, the trial court's entry orders appellant to pay $128.90 to American Insurance Company. 2 R.C. 2929.19(B) provides, in relevant part: "Subject to division (B)(4) of this section, if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following: "* * *; (b) Notify the offender that the parole board may extend the stated prison term if the offender commits any criminal offense under the laws of this state or the United States while serving the prison term, that the extension will be done administratively as part of the offender's sentence in accordance with section 2967.11 of the Revised Code and may be for thirty, sixty, or ninety days for each violation, that all extensions of any stated prison term for all violations during the course of the term may not exceed one-half of the term's duration, and that the sentence so imposed automatically includes any extension of the stated prison term by the parole board; (c) * * *, if the offender is being sentenced for a felony of the first degree, for a felony of the second degree, for a felony sex offense, as defined in section 2967.28 of the Revised Code, or for a felony of the third degree that is not a felony sex offense and in the commission of which the offender caused or threatened to cause physical harm to a person, notify the offender that a period of post-release control pursuant to section 2967.28 of the Revised Code will be imposed following the offender's release from prison; "* * *. (e) Notify the offender that, if a period of post-release control is imposed following the offender's release from prison, as described in division (B)(3)(c) or (d) of this section, and if the offender violates a post-release control sanction imposed as a component of the post-release control including the mandatory condition described in division (A) of section 2967.121 [2967.12(1)] of the Revised Code, all of the following apply: "(i) The adult parole authority or the parole board may impose a more restrictive post-release control sanction. "(ii) The parole board may increase the duration of the post-release control subject to a specified maximum. "(iii) The more restrictive sanction that the parole board may impose may consist of a prison term, provided that the prison term cannot exceed nine months and the maximum cumulative prison term so imposed for all violations during the period of post-release control cannot exceed one-half of the stated prison term originally imposed upon the offender. "(iv) If the violation of the sanction is a felony, the offender may be prosecuted for the felony and, in addition to any sentence it imposes on the offender for the new felony, the court may impose a prison term, subject to a specified maximum, for the violation."

2016-07-06 06:42:19.187093+00

DECISION AND JUDGMENT ENTRY {¶ 1} Plaintiff-Appellant Bryan R. Goodfleisch appeals the judgment of the Pickaway County Court of Common Pleas which granted him a divorce from Defendant-Appellee Apryl D. Goodfleisch, executed a shared parenting agreement, and determined his child support obligations. Appellant asserts that the trial court's calculations of child support were erroneous. {¶ 2} For the reasons that follow, we disagree with appellant and affirm the judgment of the trial court. Trial Court Proceedings {¶ 3} In August 1987, Plaintiff-Appellant Bryan R. Goodfleisch and Defendant-Appellee Apryl D. Goodfleisch were married. Three children were born from this union: (1) Kaylin, born May 31, 1988; (2) Madyson, born March 13, 1995; and, (3) Nickolas, born August 14, 1996. {¶ 4} In September 1999, appellant filed a complaint with the Pickaway County Court of Common Pleas seeking a divorce from appellee. Subsequently, appellant filed an amended complaint adding Defendant Joseph Daniel Kostenbader as a party defendant. Appellant asserted that appellee had committed adultery, and was in a relationship with Kostenbader, whom appellant sought to enjoin from taking or hiding marital assets. The trial court enjoined Kostenbader from releasing any marital assets to appellee that he may have held on appellee's behalf or from encumbering or hiding any marital assets. {¶ 5} In November 1999, appellee filed an answer and asserted a counterclaim for divorce against appellant. Appellee conceded that she and appellant were mutually incompatible. {¶ 6} The trial court filed a temporary order, instructing appellant to pay to appellee $1,428 per month in child support. Pursuant to an agreed entry resolving matters involving custody and child support during the divorce proceedings, the child support obligation was reduced to $1,029.51 in June 2000. {¶ 7} A final hearing was held before a magistrate, who subsequently filed her decision in March 2001. The magistrate found that pursuant to the parties' shared parenting agreement appellee would have companionship with the children from Friday at 6:00 p.m. until Sunday at 6:00 p.m. on alternate weekends. Further, appellee would have visitation with Kaylin one weekday per week from 4:00 p.m. to 8:00 p.m. Additionally, on weeks where appellee did not have the children for the weekend, Madyson and Nickolas would stay with her either Tuesday through Thursday or Monday through Wednesday. {¶ 8} Further, the magistrate noted the disparate incomes between the parties, appellant's historical income being $66,600 per year, while appellee's historical income was $21,252 per year. Employing a split parental worksheet, the magistrate determined appellant's child support obligation to be $496.20 commencing from January 23, 2001. {¶ 9} Appellant filed objections to the magistrate's decision with the trial court. Among other objections, appellant asserted that the magistrate's calculation of child support was erroneous. Appellant argued that the amount he should pay to appellee for child support obligations should be no more than $371.72 per month. Appellant further asserted that this amount should be retroactively applied to the temporary child support orders. Thus, appellant concluded that he has overpaid on his child support obligations during the time the divorce proceedings were pending and should receive credit for those overpayments. {¶ 10} In October 2001, the trial court filed its decision overruling appellant's objections to the magistrate's decision concerning child support. {¶ 11} In February 2002, a final decree of divorce was filed. It incorporated the shared parenting agreement and the magistrate's decision, including certain changes by the trial court that are inconsequential for purposes of our decision. The Appeal {¶ 12} Appellant timely filed his notice of appeal and presents the following assignments of error for our review. {¶ 13} First Assignment of Error: "The Trial Court erred when it used a split parenting worksheet rather than using a calculation of the percentage of time as specified in the Looker case, rendering the result inequitable." {¶ 14} Second Assignment of Error: "The Trial Court erred when it failed to make its final award of child support retroactive to the filing date of the divorce since the arrangements regarding the care and custody of the children never changed." I. Appellate Jurisdiction {¶ 15} Initially, we must address a threshold jurisdictional issue, to wit: whether the judgment entered below constitutes a final appealable order. Absent a final appealable order, we lack jurisdiction to review the case under R.C. 2505.02 and Section 3(B)(2), Article IV, Ohio Constitution. In his amended complaint, appellant named both appellee and Kostenbader as parties defendant. As far as we can tell, the court never entered judgment for or against Kostenbader, nor was he dismissed from the action. Technically, the claims against Kostenbader are still pending. {¶ 16} Civ.R. 54(B) provides that a "court may enter final judgment as to one or more but fewer than all the claims * * * only upon an express determination that there is no just reason for delay." See Civ.R. 54(B). The Supreme Court of Ohio has held that a judgment disposing of less than all the claims presented in a particular case must comply with Civ.R. 54(B) or it will not be considered a final appealable order. See Chef Italiano Corp. v. Kent State University (1989),44 Ohio St.3d 86, 541 N.E.2d 64, syllabus. {¶ 17} The judgment in the present case neither disposes of claims against Kostenbader, to the extent that any such claims were raised, nor does it contain the requisite Civ.R. 54(B) language that there is "no just reason for delay." Thus, arguably, the judgment is not a final appealable order such that we would have jurisdiction to review the matter. Thus, we generally would be required to dismiss the appeal. SeeProd. Credit Assn. v. Hedges (1993), 87 Ohio App.3d 207, 621 N.E.2d 1360, fn. 2. {¶ 18} Nevertheless, we decide against this approach because Kostenader appears to have been brought in as a party solely to make it easier for the trial court to restrain the dissipation of assets possibly held by him on behalf of appellee. The final divorce decree and distribution of assets has effectively rendered any claims against Kostenader moot. Further, the trial court's judgment released all restraining orders issued during the course of the divorce proceedings. Thus, we can properly assume jurisdiction in this case. See Vadakin v.Vadakin (1997), Washington App. No. 95CA49; General Accident Ins. v.Ins. Co. of North America (1989), 44 Ohio St.3d 17, 21, 540 N.E.2d 266 (holding that "even though all the claims or parties are not expressly adjudicated by the trial court, if the effect of the judgment as to some of the claims is to render moot the remaining claims or parties, then compliance with Civ.R. 54(B) is not required to make the judgment final and appealable"); see, also, Noble v. Colwell (1989), 44 Ohio St.3d 92,540 N.E.2d 1381. II. Child Support Calculations {¶ 19} In his First Assignment of Error, appellant argues that the trial court erred when it determined that appellant's child support obligation should be $496.20 per month. Appellant asserts that the trial court should have deviated from the child support computation worksheet as set forth in R.C. 3119.0231, and applied a formula used by the Tenth District Court of Appeals in Looker v. Looker (Dec. 29, 1992), 10th Dist. No. 92AP-1064. {¶ 20} R.C. 3119.023 provides that in proceedings where the parents have split parental rights and responsibilities, the trial court "shall use a worksheet that is identical in content and form to the" one provided in the statute. R.C. 3119.023. Initially, we note that appellant concedes that the trial court's judgment correctly calculates the child support obligation in accordance with the child support computation worksheet for split parental rights and responsibilities. Appellant's only argument is that the trial court should have deviated from the statutory worksheet because he has more time with the children than appellee does. {¶ 21} R.C. 3119.22 provides: {¶ 22} "The court may order an amount of child support that deviates from the amount of child support that would otherwise result from the use of the basic child support schedule and the applicable worksheet, through the line establishing the actual annual obligation, if, after considering the factors and criteria set forth in section 3119.23 of the Revised Code, the court determines that the amount calculated pursuant to the basic child support schedule and the applicable worksheet, through the line establishing the actual annual obligation, would be unjust or inappropriate and would not be in the best interest of the child." {¶ 23} Among the many factors to be considered for a deviation are: (1) special and unusual needs of the children; (2) extended parenting time or extraordinary costs associated with parenting time; (3) financial resources and earning ability of the child; (4) income disparity between the parents or households; (5) benefits received by either parents from remarriage or sharing living expenses with another person; and, (6) any other relevant factor. See R.C. 3119.22.2 Further, if a trial court decides to deviate from the mandated computation worksheet, it must make a finding delineating why the worksheet amount is unjust or inappropriate and not in the best interests of the child or children. See R.C. 3119.22. Additionally, the trial court must make factual findings supporting that determination. See id. {¶ 24} R.C. 3119.22 and 3119.23 endow the court with discretion to deviate from the amount of child support calculated pursuant to the statutory worksheet, after considering certain factors. Accordingly, we review the court's decision to not deviate from the worksheet to determine whether that decision constitutes an abuse of discretion. SeePurvis v. Purvis, Adams App. No. 00CA703, 2002-Ohio-570 (stating that, "An appellate court uses the abuse of discretion standard when reviewing matters concerning child support."); see, also, Booth v. Booth (1989),44 Ohio St.3d 142, 144, 541 N.E.2d 1028; State ex rel. Scioto Cty. ChildSupport Enforcement Agency v. Gardner (1996), 113 Ohio App.3d 46, 52,680 N.E.2d 221. {¶ 25} "The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. To constitute an abuse of discretion, "the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will, but the perversity of will, not the exercise of judgment, but the defiance of judgment, not the exercise of reason but, instead, passion or bias." Nakoff v. FairviewGen. Hosp., 75 Ohio St.3d 254, 256, 1996-Ohio-159, 662 N.E.2d 1. {¶ 26} In making his argument, appellant relies exclusively on the decision of the Tenth District Court of Appeals in Looker. In Looker, the court reviewed a trial court's deviation from the then-existing statutory framework in determining the amount of child support. The court explained the statutory formula and the court's rationale for deviating from that formula. The court's rationale for deviating from the formula included the disparity in income between the parents and their respective abilities to take advantage of certain tax deductions. See Looker v.Looker, supra. {¶ 27} Contrary to appellant's assertions, Looker does not set out some alternate child support formula that trial courts may utilize.Looker addresses the reasonableness of a trial court's decision to deviate from the statutory computation worksheets. See Looker, supra. {¶ 28} In the case sub judice, the trial court applied the proper worksheet and performed the calculations correctly, as conceded by appellant. The trial court determined that the amount born of the worksheet computations was just and in the best interest of the children. The trial court noted the disparity of incomes between appellant and appellee. It also noted appellee's need in creating a home for the children and compared appellee's financial ability to do so with appellant's financial resources. These factors can be used to deviate from the worksheet calculations, but the trial court specifically found that in this case, the factors weighed against deviating from the worksheet. {¶ 29} Considering the trial court's thorough reasoning, we cannot find that it abused its discretion in setting appellant's child support obligation at $496.20 per month. Accordingly, we overrule appellant's First Assignment of Error. III. Retroactive Application of the Child Support Award {¶ 30} In his Second Assignment of Error, appellant asserts that the trial court erred by not retroactively applying the $496.20 per month child support award to the date the divorce proceedings commenced. {¶ 31} Appellant was instructed, pursuant to temporary child support orders, to pay to appellee $1,428 per month in child support. That amount was subsequently changed to $1,029.51, pursuant to an agreed entry that, among other things, temporarily resolved custody matters. Appellant asserts that the living arrangements for the children have not changed since the commencement of the divorce proceedings and have essentially been the same as the arrangements agreed to in the shared parenting plan. Accordingly, appellant asserts that he should be entitled to a credit for all child support payments made while the divorce action was pending that were in excess of $496.20. {¶ 32} As we have already noted, we review child support matters using an "abuse of discretion" standard of review. See Purvis and Booth, supra. {¶ 33} When issuing a temporary child support award, a trial court must make a decision with limited evidence and information. The recipient wants the award to be perfect and precise to ensure full payment, while the obligor desires the same to ensure no overpayment is made. A perfect and precise temporary child support award is unrealistic. "The magistrate must make a determination quickly, often with only limited evidence. Temporary orders for support are pendente lite. The very nature of temporary support orders is `to preserve the status quo during the proceeding.'" See Alteno v. Alteno, 11th Dist. 2000-T-0078,2002-Ohio-302. {¶ 34} If a party is not satisfied with a temporary child support order, he or she may file a motion pursuant to Civ.R. 75(N)(2), seeking a hearing on the issue. In the case sub judice, appellant was initially ordered to pay $1,428 per month. The parties then agreed that the amount to be paid should be $1,029.51 per month. We cannot say that the trial court erred in not revisiting these figures and crediting appellant with the difference. {¶ 35} A trial court's decision to not complicate child support matters by revisiting support payments made two years before the final decree of divorce was filed is not wholly unreasonable. Further, the trial court's decision is reasonable considering that appellant agreed to the second temporary child support order. {¶ 36} Accordingly, the trial court did not abuse its discretion by refusing to retroactively apply the final child support award, and we overrule appellant's Second Assignment of Error. Conclusion {¶ 37} Therefore, we find that the trial court did not abuse its discretion by calculating appellant's child support obligation as it did. The trial court also did not abuse its discretion by refusing to retroactively apply the calculated child support amount. {¶ 38} Accordingly, appellant's assignments of error are overruled in toto and we affirm the well-reasoned judgment of the trial court. Judgment affirmed. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that appellee recover of appellant costs herein taxed. 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 PICKAWAY 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 of the Rules of Appellate Procedure. Exceptions. Harsha, J., and Abele, J.: Concur in Judgment Only. 1 We note that R.C. 3119.023, effective March 22, 2001, contains provisions that are analogous to former R.C. 3113.215(F), which was repealed. 2 R.C. 3119.22 contains provision analogous to portions of former R.C. 3113.215(B)(1) and former R.C. 3113.215(B)(2)(c), which have been repealed.

2016-07-06 06:42:19.317529+00

OPINION {¶ 1} Defendant-appellant Donta Cabiness appeals the December 27, 2002 Judgment Entry of the Licking County Court of Common Pleas, which sentenced him on his conviction of one count of possession of crack cocaine. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE {¶ 2} On August 4, 2001, the Newark Police Department received a complaint from a local resident. Officer Lewis was dispatched to the scene. While there, Officer Lewis saw two individuals who matched, generally, the description provided in the complaint. Only a small amount of street lighting illuminated the area. The suspects were standing on the sidewalk to the right of the police cruiser. Officer Lewis claimed he shone his spotlight, which is mounted on the driver's side of his cruiser, on the suspects. Officer Lewis told the suspects of the complaint. One suspect turned and walked away from the officer; the other suspect stayed near the police cruiser. While securing the individual who stayed by the police cruiser, Officer Lewis watched the other suspect walk to a chain link fence toward a residence and observed him drop a "baggie" over the fence and into the yard. After backup arrived at the scene, Officer Lewis approached the second residence. Officer Lewis asked the woman who answered the door if he could speak to the individual who just entered the home. Appellant came to the door and was secured by Officer Lewis. When asked about how he could identify appellant as the individual who dropped the baggie, Officer Lewis testified he recognized appellant by his clothes. At the time of trial, Officer Lewis was unable to remember the kind of clothing appellant had been wearing. {¶ 3} Officer Lewis subsequently retrieved the baggie from the yard. After lab analysis, the police determined the baggie contained crack cocaine. At trial, Officer Lewis testified he does not routinely dust baggies for fingerprints, especially when he witnesses an individual remove a baggie from his or her person and discard it. {¶ 4} When questioned about his identification of appellant as the man he encountered on the street, Officer Lewis was unable to provide details, other than the fact he remembered appellant's clothing at the time he identified appellant. Officer Lewis admitted his identification was based solely on the clothing match, and that he did not see appellant's facial features when he saw appellant on the street. The parties stipulated the baggie recovered contained 1.3 grams of crack cocaine, and that the baggie itself was never dusted for fingerprints. {¶ 5} On August 9, 2001, appellant was indicted on one count of possession of crack cocaine, in violation of R.C. 2925.11(A)(C)(4)(b). At his August 13, 2001 arraignment, appellant plead not guilty to the charge. {¶ 6} The matter proceeded to a jury trial on December 19, 2002. After hearing all the evidence and deliberations, the jury returned a guilty finding on the sole count of the indictment. In a December 27, 2002 Judgment Entry, the trial court sentenced appellant to sixteen months in prison. {¶ 7} It is from this judgment entry appellant prosecutes this appeal, raising the following error for our review: {¶ 8} "I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN FINDING THE DEFENDANT-APPELLANT GUILTY OF POSSESSION OF COCAINE AS THE CONVICTION OF THE DEFENDANT-APPELLANT IS NOT SUPPORTED BY CREDIBLE EVIDENCE SUFFICIENT TO SUSTAIN OR WARRANT THE SAME." I {¶ 9} In his sole assignment of error, appellant contends the evidence presented against him was insufficient to sustain a conviction entered by the trial court. We disagree. {¶ 10} In State v. Jenks (1981), 61 Ohio St.3d 259, 574 N.E.2d 492, the Ohio Supreme Court set forth the standard of review when a claim of insufficiency of the evidence is made. The Ohio Supreme Court held: AAn 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. {¶ 11} When applying the aforementioned standard of review to the case sub judice, based upon the facts noted supra, we do not find, as a matter of law, appellant=s conviction was based upon insufficient evidence. {¶ 12} On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine Awhether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. The discretionary power to grant a new hearing should be exercised only in the exceptional case in which the evidence weighs heavily against the judgment. State v. Thompkins,78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541 citing State v.Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. Because the trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1, 227 N.E.2d 212. {¶ 13} Specifically at issue in this appeal is Officer Lewis' identification of appellant as the individual he encountered on the street. The parties agreed Officer Lewis' identification was based not upon appellant's facial features, but rather upon appellant's clothing. We find the identification was sufficient given the circumstances of the arrest. Officer Lewis used the cruiser spotlight to illuminate appellant and the second suspect. Even though Officer Lewis asked appellant to stay, appellant turned and walked away. Officer Lewis watched appellant walk a short distance, into a house. When he subsequently asked the woman who answered the door at the house if he could speak to the individual who just entered the house, appellant appeared at the door. Officer Lewis recognized appellant's clothes at that time. Based upon these facts, we find Officer Lewis' identification of appellant was sufficient for the jury to conclude he was the individual who dropped the baggie of cocaine. {¶ 14} Accordingly, appellant's sole assignment of error is overruled. {¶ 15} The December 27, 2002 Judgment Entry of the Licking County Court of Common Pleas is affirmed. By: Hoffman, P.J., Edwards, J. and Boggins, J. concur.

2016-07-06 06:42:19.960939+00

{¶ 50} I respectfully dissent because the record shows that there was a manifest injustice in the trial court's refusal to allow defendant to withdraw his guilty plea and also in failing to hold a hearing so that a full record could be made on this request. {¶ 51} The majority concludes "the court advised Ford of the changed conditions on the record prior to the plea" because of an early statement of the court: {¶ 52} The record additionally will reflect there have been discussions among counsel with regard to sentencing in the event Mr. Ford's plea were to be forthcoming, those discussions have been inconclusive other than that the court has indicated that it would consider, if sufficient mitigation were produced, minimum term in the criminal docket No. 431940, and that it would, the court would consider on motion the possibility of terminating community controlled sanctions in the other matter. {¶ 53} However, the court would want the opportunity to hear from the victim, Miss Ford, prior to making any sentencing decision. So court will confirm for the record those discussions have taken place. {¶ 54} Tr. 7-8. {¶ 55} From the beginning, however, defendant characterized the "discussions among counsel" as a "deal." When the court asked him whether he understood "what is taking place here and what is being put on the table" and what his intention was, defendant responded: "I guess I go with the deal, I guess." {¶ 56} Later when asked whether he was "specifically promised" anything "to get you to plead guilty," defendant clearly stated: "There was an agreement reached as to the twoyears." Tr. 16-17. {¶ 57} The court then asked: "Other than what we talked about here today," and defendant responded: "That was it." The court's reference to "what we talked about here today" broadly encompassed ten pages of transcript, the most recent being a discussion of the counts, not the years of his sentence. Nor is the defendant's answer helpful in clarifying what he thought was the agreement, since it is not clear what the antecedent of "that" is when he said, "That was it." Defendant could have been referring to the agreement he just had described as two years. {¶ 58} After the sentence of three years was pronounced, however, the defendant said: "That's crazy man, that's crazy, He told me two years, man. He told me two years." The court then dded five years of post-release control, full restitution and anger management, whereupon the defendant declared: "No man, that ain't right. That ain't right. That ain't cool. He lied to me man." He immediately asked to withdraw his plea, reiterating: "It ain't right." Tr. 35. {¶ 59} Defense counsel then indicated to the court that the agreement he conveyed to the client when the client decided to accept the plea was clearly that defendant would receive two years. Defense counsel specifically clarified that it was only after that discussion that the court conveyed its intent to hear from the victim: {¶ 60} We had conversations in chambers concerning this sentence and the court indicated to me you would give him theminimum of two years. I then had conference with the defendant. * * *At this point he decided to make a change of plea because Itold him that he will get two years when we came out on therecord, and he entered the plea. The Court then indicated on the record that it would consider the two years; however, would like to hear from the victim. That was not conveyed to him by thiscounsel prior to coming out before the plea and prior to enteringthe plea. So I did, based upon my conversation with the Court,advise him that that he would get the minimum of two years. Ihave to put that on the record." (Emphasis added.) {¶ 61} Tr. 36. {¶ 62} Defense counsel made it quite clear that an agreement of specifically two years was reached in chambers and that was the agreement conveyed to defendant. However, the judge apparently changed his mind and added qualifications at the sentencing hearing. To assume that defendant understood thatsudden addition of qualifications is to ignore the strikinglyclear assertion of defendant before he was sentenced: "Therewas an agreement reached as to the two years." Tr. 17. The timing of this assertion calls into question whether defendant understood additional conditions had been added. {¶ 63} Also noteworthy is the admirable perseverance of defense counsel in clarifying on the record that an understanding of an unqualified two years was definitely reached in the judge's chambers and that defendant's guilty plea was based on that understanding. {¶ 64} If the court needed to add considerations after that agreement had been reached, then the burden was upon the court to clarify those qualifications specifically as additions to the agreement and then to question defendant as to that specific addition. The court made no attempt, however, to clarifyseparately defendant's understanding of these additions. Rather, the court merely added the conditions and then asked only generally whether he understood "what is being put on the table." {¶ 65} Even if, arguendo, one does not believe that the opening discussion is completely undercut by what followed, one must conclude, at the very least, that what followed called into question whether defendant understood what he was pleading guilty to and thus that a hearing on his motion should have been held.1 There was sufficient evidence on the record to require the judge to hold a hearing to flesh out the matter fully. Anything less is a manifest injustice. 1 We note that "A defendant's motion to withdraw a guilty plea need not be written." State v. Nicholson, Cuyahoga App. No. 82825, 2004-Ohio-2394, citing State v. Bowling (Mar. 10, 1987), Montgomery App. No. 9925, 1987 Ohio App. LEXIS 6103.

2017-02-01 17:56:57.668246+00

http://www.ag.state.mn.us/office/opinions/159a3-19980311.pdf

EDL?CATIO;\`: I:\*DEP':`.\"DE-.\`T SCHOOL DISTRICT: BO.\`D ELECTIOX: RE\"[E\\` _A.\`D C`OM.\/IE;\~'T: School board _\\'hich receives petition by voters to hold special election to authorize issuance of bonds for school facility must submit project for review and comment A community recreational facility as described by school district is subject to review and comment procedures Unless the revie\\' and comment is negative. school board must call the special election petitioned by \'oters. Minn. Stat. §§ l2l.l~'lS (1996). 121.15 (Supp. 1997)_ 205A.05 (Supp. 1997). Affirmative vote in bond election does not compel board to issue bonds. Op. Atty. Gen. 159-a-3. l\/lay 25. 1970. March ll , “1998 John M. Roszak, Esq. 159_3_3 Jay T'. Squires, Esq. (Cr. Ref. to 159-b-l , 622~a-l and 622-b) Ratwtk, Roszak, Maloney, P.A. 300 Peavey Bldg. 730 Sccond Ave. South Minneapolis, MN 55402 Dear Messrs. Roszak and Squires: In your letter to Attorney Genera.l Hubert H. Humphrey III you present substantially the following: FACTS In October of 1997, lndependent School District No. 197 (West St. Paul- Mendota Heights-Eagan) was presented with a petition signed by voters of the School District. The petition requests the Board of Education to authorize and hold a special election for the school district “ in accordance with applicable and current Minnesota State Statutes.” The petition goes on to state: The Special Election ballot will pose question(_s) to District voters authorizing the sale of bonds to finance the design, construction and equipping of a multi-purpose activity center to be located at ‘ the Henry Sibley High School campus The activity center could house facilities to serve all District resident and youth programs Previously, the School District had created a community task force to study various proposals, including proposals that contemplated the erection of a community activity center in the District. In September of 1996, the School Board determined, based on cost considerations and the availability of existing space. that plans to erect a community facility were not feasible As a result of receiving the petition for the special election. the administration of the School District has attempted to determine the cost of architectural and design fees to comply with Nlinn. Stat. § l'.‘.l.l48 e;§eg. if the District is required to do so prior to conducting an election pursuant to the petition. Although the matter is not without some uncertainty the District has been advised that it could cost approximately 310.000 to S'.l$. 000 for such fees. ;\/lessrs. Roszak and Squires Page 2 You then ask substantially the following: QUESTIO.\' ONE Whether Minn. Stat. § 205A.05, subd. 1 (Supp. 1997) authorizes voters of a school district, by petition, to compel the School District to hold a special election on the question of issuance of bonds for construction of school facilities‘? OPINION Subject to our response to your third question as discussed below, we answer your first question in the affirmative In Op. Atty. Gen. 159-a-3, May 25, 1970, consuming the provisions of Minn. Stat. § 123.32, subd. 22 (1967), we concluded that a petition of the voters calling for a special election on the question of issuing bonds to finance construction of an outdoor hockey arena required that the school board call an election on the matter. We also concluded, however, that while an affirmative vote in the election authorized the school board to issue the bonds, it did not compel the board to issue the bonds, Although the special election provisions for school districts are now contained in Minn. Stat. § 205A.05, subd. 1(Supp. 1997) rather than Minn. Stat. § 123.32, subd. 22, we conclude that the answer to your question remains the same under the current statute. ln 1987, the Legislature repealed Minn. Stat. § 123.32 (1986`) effective July l, 1988. Minn. Laws 1987, ch. 266, art. 2, §§ 14 and 15. At the same time. it enacted Minn. Stat. § 205A.05_ to address the subject of special elections in school districts. .\linn. Laws 1987. ch. 266. art. l. §§ 52 and 69. One obvious difference between the last version of i\/linn. Stat. § 113.32. subd. 22 (1986) and the special election language of section 205A.05. subdivision l as enacted in 1987 is the addition of the first sentence of the latter. lt provides'. Messrs. Roszak and Squires Page 3 Special elections must be held for a school district on a question on which the voters are authorized by law to pass judgment Under Minnesota law, voters are authorized to “pass judgment” on a variety of issues through the election process. F or example, voters are authorized to approve consolidation actions (Minn. Stat. § 122.23, subds. 10-13 (1996)); to increase the size of the school board (Minn. Stat. § 123.33, subd. 1 (1996)); to increase the tax levy of the school district (Minn. Stat. § 124.A.03, subd. 2(a) and (b) (1996)); or to revoke or reduce the amount generated thereby (ir_i. at clause (C)); and to authorize the school board to issue general obligation bonds for school facility construction projects fMim. Stat. § 475.58, subd. 1 (1990)). Except for tlte last example, each of these elections mandates that some action be taken following an affirmative vote of a majority of those voting on the question. In either case, however, the voters are “passing judgment” on questions which necessitate voter approval as a prerequisite to action. The last example, an election authorizing a school board to issue general obligation bonds, does not compel the board to issue the bonds. Op. Atty. Gen. 159-a-3, May 25, 1970. Nevertheless, unless an exception to the general rule applies, a school board may not issue general obligation bonds for the school district without an affirmative vote at the election. Con_sequently, voters at school bond elections are"‘passing judgment” upon the question of whether their school board should be authorized to issue bonds for the purpose presented at the election. 'l'hus. we conclude that the first sentence of section 205A.05, subdivision 1 does not preclude a special election by petition on the question of authorizing the school board to issue bonds. Messrs. Roszak and Squires Page 4 Significantly, the remainder of the special election language of section 205A.05, subdivision 1 (Supp. 1997) is substantially identical to its predecessor. ;\/Iinn. Stat. § 123.32, subd. 22, (1986). The language of section 123.32, subdivision 22. relied upon in Op. Atty. Gen. 159-a-3, May 25, 1970, remained.the same until its repeal in 1987. That language provided in relevant part that: The board of an independent district may and upon petition . . . shall by resolution call a special election to vote on any matter requiring approval of the voters of the district. The new special election provision, enacted as section 205A.05_. subdivision 1 provides in relevant part that: Upon petition . . . the school board shall by resolution call a special election to vote on any matter requiring approval of the voters of a district Consequently, for purposes of responding to your first question, the provisions of the new school district special election statute contain substantially the same terms as its immediate predecessor. 'l`hus, we conclude that your first question is resolved by Op. Atty. Gen. 159-a-3, May 25, 1970. Based upon the foregoing, it is our opinion that, subject to the qualifications discussed below, t\/[inn. Stat. § 205A.05, subd. l (Supp. 1997) authorizes the voters of a school district, by petition, to compel the school district to hold a special election on the question of issuance of . . . . l bonds for construction of school factliues. l lt is not the intention of this opinion to review the sufficiency ot` the petition nor is such a review necessary to respond to the questions presented. Messrs. Roszak and Squires Page 5 Your letter presenting the District’s request for an opinion also expresses a concern about another issue raised by the first question. The concern is that the voters’ petition has been presented in a situation where the School Board has recently considered the feasibility of the project which is the subject of the petition and the School Board determined not to pursue the project. Under the facts presented, however, more than a year has passed between the School Board’s decision that the project was not feasible and its receipt of the voters’ petition, While die facts presented do not indicate whether the School Board ever submitted the question of issuing bonds for the community recreational facility to the voters, Minn. Stat. § 475.58, subd. la (1996) allows the question of authorizing bonds to be raised a second time within a period of as little as 180 days from the date an election was held for the same purpose and for the same amount The fact that the School Board considered the feasibility of the proposed project or a similar one over a year ago does not now bar a special election by petition from being held. QUESTION 'I"WO lf the answer to Question One is in the afiirmative. whether the School District must comply with Minn. Stat. § 121.148 eLseg.. the review and comment law, prior to the conduct of the election? OPINION We answer to your second question in the affirmative Minn. Stat. § 121.15, subd. 6 (Supp. 1997) provides in relevant part that: A school district . . . must not initiate an installment contract t’or purchase or a lease agreement hg_\d_a_refere_nd_u_tn_fgr_b_gn§i§. nor solicit bids for new construction expansion. or remodeling of an educational facility that requires an expenditure in access of 5400.000 per school site prior to review and comment by the commissioner. Messrs. Roszak and Squires Page 6 (Emphasis added.) The special election under section 205A.05, subdivision l. discussed in response to your first question, is certainly a "referendum for bonds” within the meaning of section 121.15, subdivision 6. Neither section 205A.05 nor the review and comment provisions of section 121.15 contain any express exemption allowing a referendum for bonds to be held pursuant to a petition for a special election without a review and comment. Consistent with the goal of statutory construction, we believe that section 205A.05, subdivision 1 and section 121.15, as relevant to the subject of your questions, may be construed so that effect may be given to both. Minn. Stat. §~545.26, subd. l (1996). One purpose of the special election by voter petition set out in section 205A.05, subdivision 1 is to allow questions to be put before the voters of the district where the school board may have chosen not to do so. An affirmative vote at the special election, particularly where a significant number of voters participate and support the ballot question. may be persuasive and convince the school board to change its position and pursue the project which is the subject of the ballot. The purposes of the review and comment provisions of Minn. Stat. § 121.148 (1996) and Minn. Stat. § 121.15 (Supp. 1997) are compatible with the special election by petition purposes of the section 205A.05. subdivision l. Prior to holding a referendum for bonds, and to aid the Commissioner of Children, Families. ~& Learning in conducting a review and comment a school district is required to provide the Commissioner with a substantial amount of information about a proposed project Minn. Stat. § 121.15. subd. 7 tSupp. 1997) Such information ranges from the anticipated need for the t`acility. a reasonably detailed description ot" the construction project the estimated annual operating costs. the effects of the Messrs. Roszak and Squires Page 7 proposed facility on the district’s operating budget. the anticipated benefit of the facility to the area and the level of collaboration at the facility between the district and other governmental and nonprofit entities Minn. Stat. § 121.15, subd. 7(b), (C), (d). (f), (k), and (1). Using the information required to be submitted by subdivision 7, and other information as determined by the Commissioner, the Commissioner evaluates the proposed project, addresses its educational and economic advisability, and returns the review and comment to the school district within 60 days Minn. Stat. § 121.15, subd. 8 (1996). The review and comment may be either positive, unfavorable or negative. Minn. Stat. § 121.148, subd. 1; Minn. Stat. § 121.15, subd. 8 (1996). The results of the review and comment impact a bond election differently. lf a project receives either a positive or an unfavorable review and comment, the school board is required to publish the Comrnissioner’s review and comment in the district’s legal newspaper before a bond election is held. Minn. Stat. § 121.15, subd. 9 (1996). A positive review and comment provides information to the voters so that they can make an informed decision at the polls An unfavorable review and comment requires reconsideration of the project by the school board and, if the question is nevertheless submitted to the voters requires a 60% affirmative vote at the election to authorize the issuance of school bonds Minn. Stat. § 121.148, subd. 4. A negative review and comment precludes the district from proceeding with construction Minn. Stat. § 121.148. subd. 3(c) (1996). ln summary, the information provided by the school district to the Commissioner allows the Commissioner to make a decision on the project. lt` a bond election is to be held. the Commissioner's decision is shared by the school board with its voters prior to the election. The Messrs. Roszak and Squires Page 8 information gives the voters information from which they can make informed decisions on the project in deciding whether to authorize the school board to issue bonds for the project. Based on the foregoing, section 205A.05, subdivision l allows voters to petition to bring certain matters to an election by all of the voters of the district where the school board may have otherwise declined to acton the matter. Sections 121.148 and 121 .15 provide a procedure through which voters will receive information from which they can make an informed decision at the polls It is, therefore, our opinion that the school district must comply with Minn. Stat. § 121.148 and Minn. Stat. § 121 .15, the review and comment law, prior to conducting a bond election initiated by a petition of the voters pursuant to section 205A.05, subdivision l. QUESTION THREE If the answer to Question No. 2 is in the affirmative whether a bond election pursuant to a petition must be held if the review and comment process results in a negative review and comment to the School District? OPINION Based upon the assumption that the Commissioner`s negative review and comment follows the procedure set out in Section 121.148. subd. 3. we answer your question in the negative Minn. Stat. § 121.148, subd. 3(c) provides that: A school board mgv_ngt_pmgej_d_with_c_o_n§tni§jio_n if the state board of education upholds the commissioners negative review and comment or the commissioners negative review and comment is not appealed. (Emphasis added.) To give effect to the impact of a negative review and comment we believe the phrase “proceed with construction" in clause (c) includes those items identified in section 121.15. subd. 6 (Supp. 1997) as part of an entire project leading up to the construction. expansion Messrs. Roszak and Squires Page 9 or remodeling of a school building. Thus, a school district which receives a negative review and comment “must not initiate an installment contract for purchase or a lease agreement hold a referendum for bonds, nor solicit bids for new construction, expansion, or remodeling or an education facility . . . Minn. Stat. § 121.15, subd. 6. We reach this conclusion since each of these activities involves an expenditure of funds and some involve long term commitments by a school district where the school district has been precluded by a negative review and comment from proceeding with construction. We realize that the conclusion that a negative review and comment precludes a bond election by voter petition is at odds with one of the conclusions in Op. Atty. Gen. 159-a-3, May 25, 1970. In that opinion, we concluded that a petition by voters for a special election on authorizing the sale of bonds required the school district to hold such an election. However, the statutory provisions precluding a school district from proceeding with construction based on a negative review and continent were not enacted until 1990. Minn. Laws 1990, ch. 562, art. 5 . § 1, subd. 3. By contrast the statutory provisions providing for a special election by petition of the voters significantly predate 1990. The provisions of section 205A. 05, subdivision 1. providing for a special election by petition of the voters as enacted in 1987. are substantially identical to those contained in its longstanding predecessor. l_\/linn. Stat. § 123.32. subd. 22 (1986). which was repealed in the same 1987 law. Minn. l_a\vs l987. ch. 266. art. l. § 52 and art. 2. § 14. Minn. Stat. § 645.37 t 1996) provides in relevant part that: When a law is repealed and its provisions are at the same time reenacted in the same or substantially the same terms by the repealing la\v. :he earlier law shall be construed as continued in active operation Messrs. Roszak and Squires Page 10 Thus, afier receipt of a petition, Minn. Stat. § 205A.05. subd. l, containing substantially the same language construed in Op. Atty. Gen. 159-a-3, May 25, 1970_. generally requires a _ school district to hold an election on the question of authorizing the school board to issue bonds for construction On the other hand, a negative review and comment issued pursuant to sections 121 . 148 and 121 .15 precludes the holding of such an election. This conflict is resolved by Minn. Stat. § 645.26, subd. 4 (1996) with the result that the law specifying the impact of a negative review and comment, as the law latest in date of final enactment, prevails This interpretation also avoids the unreasonable result of holding an election to authorize the issuance of bonds for a project which has been precluded by a negative review and comment. Minn. Stat. § 645.17 (1996). Based upon the foregoing, it is our opinion that no school bond election may be held if a negative review and comment is issued regardless of whether the election is proposed by the school board or pursued by the voters through a petition. QUESTION FOUR Whether the review and comment procedures apply to the construction of a multi-purpose community recreational facility? OPINION We answer your question in the affirmative As indicated in your letter. the contemplated multi-purpose community recreational facility may consist of an ice atena. soccer field. swimming pool. and senior center. The facility would be constructed on school property and other governmental and private organizations may be involved in the project lt is estimated that. Messrs. Roszak and Squires Page ll if constructed, the School District would utilize the facility in its education program on a 50% time basis while other community activities would utilize the facility the other 50% of the time. You have noted that Minn. Stat. § 121.15, subd. 6 (Supp. 1997) uses the term “educational facility” while Section 121 .148 (1996) uses the term “school facility.” §§e Minn. Stat. § 121.148, subds. 1 and 3 (1996). In the context of a multi-purpose community recreational facility intended to be used as described in your letter, we do not find the difference in the terms “educational facility” and “school facility” to be significant The multi-purpose community recreational facility described in your letter can be appropriately described as either a “school facility” or an “educational facility.” ln determining whether the Legislature intended that a multi-purpose community recreational facility as described is subject to the review and cement provisions it is appropriate to look at other laws on the same or a similar subject Minn. Stat. § 645. 16 (5) (1996). Since the School District would be proceeding with an election to authorize the sale of bonds for the construction of such a facility, it is appropriate to look to the purposes for which a school district may issue its general obligation bonds Minn. Stat. § 47i i') subd. 5 (1996) ..,._r_., provides that: F or capital improvements any school district may issue bonds for the acquisition or betterment of scthl_t`;l_Qili_ti§§ … fields,t sta adig, teacherages school garages school buses pad all Qt r`ah§;f gj|jt`e tel s fg; administration academic instruction and physle and vocational education ( Emphasis added.) The inclusion of the ice arena. soccer tield_ and swimming pool in the proposal are certainly facilities of the types identified in the emphasized langua let of subdivision- \ a_` Messrs. Roszak and Squires Page 12 All of the examples identified in subdivision 5. including the athletic buildings fall under the general term, “school facilities” Since the School District may pursue the community recreational facility with others including other govemmental units, it is also appropriate to examine Minn. Stat. § 471 . 19 (1996). That provision provides that: I]E.]..[ cl H.. .a , pursuant to the provisions of Sections 471. 15 to 471. 19 shallhe_gsed_pdmmily_fg£ thenumosentcnndncnngthetegulatshocl_cunicuhnnandrelaeduymes and the use of schm)_l_fagilities for recreational purposes authorized by those sections shall be secondary. (Emphasis added.) 'I'he proposal described in your letter seems to be intended to comply with the use requirements of section 471 . 19. The language of that section requires that such facilities must be used primarily for conducting “the regular school curriculum and related activities."' i e “educational” purposes and also recognizes that such “school facilities” can be used for recreational purposes Finally, and significantly, while section 121 .15. subd. 6. requiring a review and comment prior to a bond election uses the term “educational facility_." the provisions of section 121.1-18, detailing the review and comment process, use the term school facility." S_e .\/linn. Stat. § 121.148, subds 1 and 3. Thus. there does not appear to be an intended difference in the use of the two terms ln light of the foregoing we conclude that the Legislature`s use of the term “educational facility" in section 121.15. subd. 6 while using the term "school t`acility" or "school f`acilities" in related statutes is not legally significant lt is therefore. our opinion that a proposed construction .\Aessrs. Roszak and Squires Page 13 multi-purpose community recreational facility by the School District is subject to the review and comment provisions of sections 121.1-18 and 121.15. Very truly yours HUBERT H. HUMPHREY 111 Attorney General CHARLES T. MOT'i'l_ Assistant Attorney General

2016-11-15 01:01:00.525803+00

http://www.ca5.uscourts.gov/opinions/unpub/16/16-50242.0.pdf

Case: 16-50242 Document: 00513758729 Page: 1 Date Filed: 11/14/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 16-50242 Fifth Circuit FILED Summary Calendar November 14, 2016 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff-Appellee v. FERNANDO BARRAZA-REVELES, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:13-CR-1106-1 Before JONES, WIENER, and CLEMENT, Circuit Judges. PER CURIAM: * The Federal Public Defender appointed to represent Fernando Barraza- Reveles has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Barraza-Reveles has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 16-50242 Document: 00513758729 Page: 2 Date Filed: 11/14/2016 No. 16-50242 nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2

2016-07-06 06:42:19.385625+00

DECISION. {¶ 1} Plaintiff-appellant Lisa Bullucks grabbed a loose railing on the front steps of her parents' house, lost her balance, and fell, breaking her kneecap. Bullucks sued her parents, Ruth A. Moore and Joseph Moore. The trial court granted summary judgment in favor of the Moores, and Bullucks now appeals. We reverse. {¶ 2} Bullucks was visiting her parents at their house when she and her mother decided to go to the store to get something to eat. Bullucks walked out the front door with her mother a few paces ahead of her. James Drake, the Moores' foster child, was sitting on the steps leading from the porch to the front walk. In order to get around Drake, Bullucks grabbed the porch railing at the top of the steps. {¶ 3} As Bullucks pulled on the railing, the railing post came out of the concrete, which caused Bullucks to lose her balance. As she lost her balance, Bullucks stepped down on a crack in the sidewalk and twisted her right ankle. As her right ankle twisted, Bullucks fell forward onto her left knee, breaking the kneecap. The broken kneecap required two surgeries, during which two pins and additional wires were inserted into the kneecap and then later removed. In her suit, Bullucks claimed that her parents knew or should have reasonably known of the dangerous conditions the loose railing and the cracked sidewalk and were negligent in their failure either to warn her or to make the conditions safe. {¶ 4} Invitee or Social Guest A Question of Fact {¶ 5} In her sole assignment of error, Bullucks asserts that the trial court erred in granting summary judgment. We review a grant of summary judgment de novo.1 The Moores were entitled to prevail on their summary-judgment motion only if (1) there was no genuine issue of material fact; (2) they were entitled to judgment as a matter of law; and (3) it appeared that reasonable minds could come to but one conclusion when viewing the evidence in favor of the party opposing the motion, and that conclusion was adverse to the party opposing the motion.2 {¶ 6} In Ohio, the duty owed by a possessor of land to another on the land depends upon the other's status as a trespasser, a licensee, or an invitee.3 In addition, the law tends to treat social guests as a distinct category.4 (This author, at least, believes that these distinctions serve no purpose, but they seem still to be followed by the Ohio Supreme Court.) The parties disagree on the appropriate status for Bullucks while she was on the Moores' property, and on the corresponding duty of care the Moores owed Bullucks. Specifically, Bullucks claims that she was an invitee, while the Moores argue that Bullucks was a social guest. {¶ 7} An invitee is a business visitor, or one who rightfully comes upon the premises of another by invitation, express or implied, for some purpose that is beneficial to the owner.5 The landowner owes the invitee a duty to exercise ordinary care and to protect the invitee by maintaining the premises in a safe condition.6 In addition, there is also a duty to warn invitees of latent or concealed perils on the property of which the landowner has knowledge or should have knowledge.7 {¶ 8} A social guest is one who is allowed use of the premises merely as a personal favor. The duty of care owed a social guest, though remarkably similar to that for an invitee, is considered to be less of a duty. "A host who invites a social guest to his premises owes the guest the duty (1) to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition."8 {¶ 9} Ruth Moore testified at her deposition that Bullucks came over with her husband and children that day "to eat dinner and just hang out with us." This could indicate that Bullucks was a social guest. But Bullucks testified at her deposition that her purpose for visiting was to take her mother to the store, and they were indeed heading out to the store when Bullucks fell. As Bullucks was performing a service for her mother, she could have been classified as an invitee rather than a mere social guest, and thus have required the higher standard of care from the Moores. {¶ 10} The trial court did not make a determination of Bullucks's status for purposes of premises liability in its entry granting the summary judgment. We conclude that the determination of Bullucks's status was, at the least, a question of fact. It would need to be decided before proceeding to an analysis of whether the Moores breached a duty to Bullucks. {¶ 11} Perhaps the trial court determined that Bullucks's status was not a material fact to be decided, reasoning that the Moores did not breach a duty to her under either standard. If so, we disagree. As discussed in the next section, we conclude that there remain additional questions of fact concerning whether the Moores violated a duty of care to Bullucks, regardless of whether she was an invitee or a social guest. Therefore, Bullucks' status for premises liability was a material question of fact, meaning that the trial court was precluded from granting summary judgment. {¶ 12} Breach of Duty A Question of Fact {¶ 13} The porch railing that Bullucks grabbed as she started down the steps came loose, causing her to lose her balance. Bullucks testified at her deposition that she had no previous knowledge that the railing was loose or that it was a potential danger. {¶ 14} Joseph Moore, Bullucks's father, testified at his deposition that he knew the railing could come loose. Moore testified that, on a previous occasion, the railing had come loose from the concrete base, and that when it happened, the railing would "swing like a hinge." Moore testified, "The bottom of the post came out, which allowed the railing to open like a fence gate." Moore further testified, "I knew that railing was bad." Moore was inside the house when Bullucks fell, but as soon as he heard that she fell, "I knew exactly what it was as soon as I heard what happened, because I remembered that. I knew that thing was like that." Moore also testified that he never told Bullucks or anyone else about how the railing could come loose, nor had he made any attempt to repair it. {¶ 15} Regardless of the eventual determination of Bullucks's status as either an invitee or a social guest, the Moores may have violated a duty of care to her. An invitee must be warned of concealed perils that the landowner has knowledge of, while a social guest must be warned of any conditions that the host should reasonably consider dangerous. Joseph Moore knew that he had a porch railing that could come loose when grabbed. The loose railing was a concealed peril or a dangerous condition. At the least, it was a genuine issue of material fact whether the Moores' failure to warn Bullucks of the loose railing resulted in a breach of a duty to her. {¶ 16} Open and Obvious {¶ 17} As for the crack in the sidewalk, the Moores argue that it was an "open and obvious" defect, and that they were therefore relieved of any duty to warn social guests or invitees of its danger. {¶ 18} The open-and-obvious doctrine provides that the owner or occupier of premises owes no duty to warn of defects in the premises that invitees or guests should reasonably be expected to discover and to take appropriate precautions to protect themselves.9 In Texler v. D.O.Summers Cleaners Shirt Laundry Co.,10 the Ohio Supreme Court did not mention the open-and-obvious doctrine where the plaintiff tripped over a bucket on a sidewalk. Although the court did not explicitly reject the open-and-obvious doctrine in Texler, there is now a split of authority on this issue. For example, the Eighth Appellate District has held that Texler has abrogated the open-and-obvious doctrine.11 It has stated that the openness and obviousness of a hazard should be analyzed not in terms of the duty owed, but rather in terms of causation.12 This author also believes that the doctrine has lost its validity.13 {¶ 19} The Ninth Appellate District, however, rejects the interpretation that Texler has abrogated the open-and-obvious doctrine.14 It has stated that the open-and-obvious doctrine should continue to be applied to the duty element of negligence, and that the doctrine is not inconsistent with the principles of comparative negligence.15 {¶ 20} We note that the Ohio Supreme Court has acknowledged that a conflict exists among the districts and has accepted the matter for review.16 Therefore, this issue will be clarified for the courts, counsel, and parties, most likely before this case comes to trial. In the interim, the open-and-obvious doctrine continues to apply in this district.17 {¶ 21} In any event, the Moores were entitled to summary judgment only if there were no genuine issues of material fact. Because genuine issues of material fact existed in this case the determination of Bullucks's status on the Moores' property, whether the Moores breached a duty of care owed to Bullucks, and whether Bullucks's own negligence contributed to her injury the grant of summary judgment by the trial court was erroneous. {¶ 22} Accordingly, we sustain Bullucks's assignment of error, reverse the trial court's judgment, and remand the case for further proceedings consistent with this decision. Judgment reversed and cause remanded. Gorman and Sundermann, JJ., concur. 1 See Doe v. Shaffer, 90 Ohio St.3d 388, 390, 2000-Ohio-186,738 N.E.2d 1243. 2 See Grafton v. Ohio Edison Company, 77 Ohio St.3d 102, 105,1996-Ohio-336, 671 N.E.2d 241. 3 See Patete v. Benko (1986), 29 Ohio App.3d 325, 327, 505 N.E.2d 647;Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312,315, 1996-Ohio-137, 662 N.E.2d 287. 4 See Scheibel v. Lipton (1951), 156 Ohio St. 308, 328,102 N.E.2d 453. 5 See Gladon v. Greater Cleveland Regional Transit Auth.,75 Ohio St.3d 312, 315, 1996-Ohio-137, 662 N.E.2d 287. 6 See Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68,502 N.E.2d 611. 7 See Westwood v. Thrifty Boy Super Markets, Inc. (1972),29 Ohio St.2d 84, 86, 278 N.E.2d 673. 8 Scheibel v. Lipton (1951), 156 Ohio St. 308, 102 N.E.2d 453, paragraph three of the syllabus. 9 See Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644,1992-Ohio-42, 597 N.E.2d 504. 10 81 Ohio St.3d 677, 1998-Ohio-602, 693 N.E.2d 271. 11 See Schindler v. Gales Superior Supermarket (2001),142 Ohio App.3d 146, 153, 754 N.E.2d 298. 12 Id. 13 See Wilson v. PNC Bank (May 5, 2000), 1st Dist. No. C-990727 (Painter, J., concurring in judgment). 14 See Armstrong v. Best Buy Co., 9th Dist. No. 01CA007848, 2001-Ohio-1934. 15 Id.; see, also, Mayweather v. Rite Aid Corp., 5th Dist. No. 2002CA00160, 2002-Ohio-6406. 16 See Armstrong v. Best Buy Co. (2002), 95 Ohio St.3d 1411,765 N.E.2d 878. 17 Wilson v. PNC Bank (May 5, 2000), 1st Dist. No. C-990727.

2016-07-06 06:42:19.470911+00

OPINION {¶ 1} Defendant-appellant, Sohan Singh, appeals a decision of the Warren County Court of Common Pleas, Domestic Relations Division, dividing the parties' property in a divorce action. {¶ 2} Appellant and plaintiff-appellee, Gurdip Singh, were married on December 15, 1987. The parties separated on February 25, 1991 and filed for divorce on May 25, 2001. The trial court held a hearing on April 29, 2002 to resolve issues regarding the division of the parties' property and custody of the children. On May 17, 2002, the trial court issued a decision and on July 15, 2002 issued an amended decision. A decree of divorce was entered on July 16, 2002. {¶ 3} Appellant now appeals the trial court's decision to classify certain assets as marital. Appellant originally raised three assignments of error on appeal. However, subsequent to oral argument in this case, appellant withdrew his second assignment of error. In his first and third assignments of error, appellant argues that the trial court's decision finding two bank accounts to be marital property was against the manifest weight of the evidence. {¶ 4} In his first assignment of error, appellant contends that the trial court's decision that the contents of his Emery checking account were marital was against the manifest weight of the evidence. During the marriage, appellant had a checking account at Emery that was in his name alone. Appellant claimed that the money in the Emery account belonged to his brother, Dalip Singh. According to appellant, Dalip used the Emery account because he was new to the United States. Dalip claimed he applied for refuge status, but was awaiting an appeal before an immigration judge. Appellant also claimed Dalip gave him $15,000 to deposit in the Emery account on December 5, 2000, because Dalip needed to demonstrate to immigration officials that he could support his wife, who he was attempting to bring to the United States from India. {¶ 5} In dividing property during a divorce proceeding, the trial court is required to classify assets as marital or non-marital. See R.C.3105.171(B). This court reviews a trial court's determination regarding the classification of property as marital under a manifest weight of the evidence standard. Johnson v. Johnson (Sept. 27, 1999), Warren App. No. CA99-01-001. In performing such a review, the factual findings of the trial court relating to its classification of property as marital are reviewed to determine whether they are supported by competent, credible evidence. Id; Barkley v. Barkley (1997), 119 Ohio App.3d 155. {¶ 6} Marital property is defined in R.C. 3105.171 to include all real and personal property owned by either or both of the spouses or in which either or both spouses have an interest, including the retirement benefits of the spouses, which was acquired during the marriage. See R.C. 3105.171(A)(3)(a). A trial court is to assume that any property acquired during the marriage is marital, unless evidence is offered to rebut the presumption. Barkley at 160. The party seeking to have property determined non-marital bears the burden of proof on this issue. Spinettiv. Spinetti (Mar. 14, 2001), Summit App. No. 20113. {¶ 7} We find that the trial court did not err in classifying the Emery account as marital. The account was in appellant's name. Although appellant testified that the money in the account was his brother's, he failed to provide credible supporting evidence for this contention. He testified that Dalip gave him $15,000 to deposit in the account and provided a cancelled check. However, the memo of the check indicates that the check was for a "loan." Furthermore, the trial court noted that appellant's testimony was not credible on some of the issues regarding the parties' assets. Issues of credibility of witnesses and the weight to be given their testimony are issues for the trier of fact and we will not substitute our judgment for that of the trial court on that issue.Seasons Coal Co. v. City of Cleveland (1984), 10 Ohio St.3d 77, 81. {¶ 8} In his third assignment of error, appellant contends that the trial court erred in classifying the contents of a Firstar account as marital. Evidence at the hearing established that the account was in appellant and his brother Dalip's names. Appellant and Dalip both testified that the account was Dalip's alone, even though appellant's name was also on the account. Dalip testified that the only money in the account was his paychecks. However, the trial court found that Dalip's testimony on this issue was not credible. Again, issues of credibility are for the trial court to determine. Id. In addition, appellant failed to present any supporting evidence that the money in the account was not his. No evidence was submitted to establish that all of the deposits and withdrawals were made by Dalip, particularly several large deposits which could not be paychecks. Furthermore, appellant testified that he removed the entire balance of the account the day after the parties separated, evidencing that he had control over the entire amount in the account. Thus, we find that the trial court did not err in determining that the contents of the Firstar account were marital. {¶ 9} Finally, while not raised in a separate assignment of error, within both his first and third assignments of error, appellant argues that the trial court erred in valuing the accounts. On appeal, appellant contends that he repaid Dalip $15,000 from the Emery account to the Firstar account. The trial court valued the Emery account using the value provided by parties through the date of February 25, 2001, the date the parties separated. The trial court valued the Firstar account as of February 26, 2001.1 This was the only valuation date presented by the parties' testimony at trial. Appellant contends that the Emery account shows check number 2082 in the amount of $15,000 and that the Firstar account shows a $15,000 deposit on February 26, 2001. {¶ 10} Although the bank accounts were submitted into evidence, this particular argument was not presented in any type of testimony before the trial court. Although appellant testified that he "paid Dalip the $15,000 back," there was no testimony at the hearing to establish that the amount was paid by this particular check from the Emery account, and that it was deposited into the Firstar account. The bank accounts discussed at the hearing and the parties' financial information was highly complex and the testimony was confusing. Various sums of money, including several large sums, were transferred between accounts, and in and out of accounts, and, according to appellant, he received large sums of money from other family members for safekeeping. Although there is some evidence supporting the argument now made by appellant on appeal, it was not the trial court's responsibility to "connect the dots" regarding absent testimony to support an argument that was not made at trial. {¶ 11} In conclusion, we find that the trial court did not err in determining that the Emery and Firstar accounts were marital and in dividing the assets between the parties. Appellant's first and third assignments of error are overruled. Judgment affirmed. WALSH and POWELL, JJ., concur. 1 We note that, as a general matter, a trial court should consistently apply the same set of dates when evaluating marital property that is subject to division and distribution in a divorce proceeding.Herrmann v. Herrmann(Nov. 6, 2000), Butler App. Nos. CA99-01-006, CA99-01-011. However, the circumstances of some cases may require the use of different dates for valuation purposes. Id. This is particularly true where the only valuation amounts presented by the parties involves different dates.

2016-07-06 06:42:19.25383+00

DECISION AND JOURNAL ENTRY James Radcliff pled guilty to, and was convicted of, violating a Civil Protection Order ("CPO"), in violation of R.C.2919.27, theft, in violation of R.C. 2913.02, and misrepresenting identity, in violation of Akron City Code 136.15.1 He has appealed from his conviction and sentence. Radcliff has asserted that (1) he was denied the effective assistance of counsel and that the trial court erred by (2) denying his right to a speedy trial; (3) setting an excessive bond and revoking his house incarceration pending sentence, without notice or hearing; and (4) denying his motion to withdraw his plea of guilty prior to his sentencing.2 We overrule all of Radcliff's assignments of error and affirm the judgment of the trial court. I Radcliff was arrested on February 13, 1999, and charged with two counts of violating a CPO, one count of theft, and one count of misrepresentation of identity. One of the counts of violating a CPO was separately charged; the remaining counts represent the offenses charged in Case No. 99CRB1628.3 On February 16, 1999, Radcliff pled "Not Guilty" to all counts in the instant case. On May 17, 1999, Radcliff appeared in court with his attorney. He indicated he wished to withdraw his not guilty pleas and to enter guilty pleas to two counts of violating of a CPO, one count of misrepresenting identity, and one count of petit theft. In exchange for the guilty pleas, the state recommended that the trial court merge and dismiss two counts of violating a CPO and dismiss another count of menacing by stalking.4 In addition it recommended that the court order a presentence investigation and place Radcliff under home incarceration prior to sentencing. The court accepted Radcliff's plea and found him guilty. It ordered him placed on home incarceration. Two days after he entered his guilty plea, the court ordered Radcliff recommitted in lieu of a $100,000/10% bond. Between May 24, 1999, and May 26, 1999, Radcliff made approximately forty attempts to reach his attorney in order to "withdraw [his] guilty plea prior to the sentencing date but [his] attorney failed to respond." After the court accepted his plea, and before it sentenced him, Radcliff wrote to the court about his communication problems with his attorney.5 Radcliff apparently remained in custody until his sentencing hearing on June 28, 1999. At his sentencing hearing the following exchange took place: MR. GATSKIE: Your honor, preliminarily, I've been asked by Mr. Radcliff to ask you to vacate his pleas. THE COURT: And what's the reason for that? MR. RADCLIFF: I spoke with the Probation Department, and a couple of these charges I [pled] guilty to, but I wasn't really guilty to them. Okay? Uh, Probation Department, and I know my past record isn't very good, okay? And uh, he persuaded me to, you know, not plead guilty to something that I wasn't guilty of. I am guilty of a couple of them. Okay. THE COURT: So what is it that you're alleging that you're not guilty of? MR. RADCLIFF: Well, I know I'm guilty of violation of the TPO and the CPO. Okay. Uh, I am guilty of misrep. Uh, what other charge is there? THE COURT: The only other one is the Petit Theft. MR. RADCLIFF: That's pretty much it. The other ones[. . .] At that point, Radcliff appeared confused as to what offenses he had committed, or had pled guilty to. He did later assert that "there was a Petit Theft that I wasn't really guilty of." The court responded, "the court's going to deny the motion at this time." At the sentencing hearing, Radcliff admitted that his "past record isn't very good." When it sentenced him, the trial court noted that his criminal record was "extensive," and contained "numerous offenses of violence." The court specifically noted that he had been convicted of felony aggravated assault, and misdemeanor assault. II Ineffective Assistance of Counsel Radcliff has asserted that his trial counsel was ineffective because (1) he did not adequately represent his client when he permitted Radcliff to plead guilty without raising speedy trial issues; and (2) he did not zealously advocate for his client. To establish that trial counsel was so deficient that Radcliff was denied his right to counsel, and is entitled to a new trial because of it, he must demonstrate both deficient performance and prejudice resulting from that deficient performance. Strickland v. Washington (1984), 466 U.S. 668, 687,80 L. Ed. 2d 674, 693. The prejudice must reach such a level that it is reasonably probable that the professionally unreasonable performance caused him to lose what he otherwise would have won.United States v. Morrow (C.A.6 1992), 977 F.2d 222, 229,certiorari denied (1993), 508 U.S. 975, 125 L. Ed. 2d 668. That demonstration of both deficient performance and prejudice must be based on the record. State v. Cooperrider (1983), 4 Ohio St. 3d 226,228. When the determination cannot be made without reference to facts outside the record, "the General Assembly has provided a procedure whereby appellant can present evidence of his counsel's ineffectiveness. This procedure is through the post-conviction remedies of R.C. 2953.21." Id. at 228. 1. Guilty Plea Radcliff has asserted that his guilty plea, after the expiration of the speedy trial period, demonstrates that his counsel was ineffective. The decision to plead guilty to charges after the speedy trial period has passed, in exchange for the dismissal of other charges may, however, be a valid trial strategy. State v. Dumas (1996), 75 Ohio St. 3d 455, 456. The reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 80 L.Ed.2d at 694. Unless Radcliff has established that the strategy was so objectively unreasonable as to rebut the strong presumption that his counsel's conduct was reasonable, this court will not second guess his counsel's trial strategy decisions. See State v. Mason (1998), 82 Ohio St. 3d 144, 157, certiorari denied (1998),52 U.S. 1057, 142 L. Ed. 2d 562. Radcliff was arrested and charged with four misdemeanors of the first degree on February 13, 1999. He pled guilty to those charges ninety-three days later, on May 17, 1999. Because he was charged with misdemeanors of the first degree, he was entitled to be brought to trial within ninety days of his arrest. R.C.2945.71(B)(2). Nonetheless, there are circumstances under which an individual would find it preferable to plead guilty to charges on which he could no longer be convicted in exchange for the dismissal of other pending charges. Radcliff has asserted, on appeal, that, "It defies common sense to assert that [he] waived his speedy trial rights. Had [he] known that there was a possibility that charges against him would be dismissed, he would never have entered a plea of guilty to those charges." Had Radcliff not pled guilty, he would almost certainly have been entitled to the dismissal of the four charges. At most, then, Radcliff could have been convicted of committing the three remaining misdemeanor offenses. By pleading guilty, Radcliff was convicted of committing four misdemeanor offenses. Because of this, we describe one scenario that is a plausible trial strategy and is consistent with the record. Based on the record, we know that Radcliff pled guilty to four misdemeanors of the first degree. In exchange, three other misdemeanor charges were dismissed. The record demonstrates that he has an "extensive" criminal history, including at least two assault convictions. It is not clear from the record whether the plea bargain resolved all of the pending charges, or whether there are others still pending. Two of the charges to which he pled guilty were identical to two of the three dismissed charges, so there could be no benefit to this portion of the bargain. In addition, he pled guilty to charges of petit theft and misrepresenting identity. The charge that was dropped was menacing by stalking, in violation of R.C.2903.211. Menacing by stalking, as a first offense, is a misdemeanor of the first degree. R.C. 2903.211(B). A conviction for menacing by stalking elevates a subsequent violation of the same statute to a felony of the fifth degree. Id. The record does not exclude the possibility that Radcliff was previously convicted of menacing by stalking, nor does it exclude the possibility that another menacing by stalking charge is still pending. If either of those circumstances existed, Radcliff faced the likelihood of being convicted of a felony rather than a misdemeanor. In that event, it would have been a reasonable trial strategy for Radcliff to plead guilty to misdemeanor charges in order to avoid the possibility of a felony conviction. Given the existence of at least one scenario under which his counsel's performance is objectively reasonable, Radcliff has not rebutted the strong presumption that the conduct of his counsel was reasonable. He cannot do so without referring to facts outside the record. Because of this, the appropriate means for Radcliff to challenge his counsel's asserted ineffectiveness is through postconviction remedies of R.C. 2953.21. Zealous Advocacy Radcliff has also asserted that his counsel was ineffective because his counsel (1) failed to request a hearing when the plea agreement entered into was not honored; (2) failed to communicate with him following the plea hearing; and (3) failed to advocate his request to withdraw his guilty plea. The plea agreement provided that Radcliff would plead guilty to four misdemeanors of the first degree. In exchange the state agreed to move to dismiss three other charges. In addition, construed liberally, the agreement also provided that "the prosecution would recommend that a presentence investigation be conducted" and would "recommend at this time that the defendant be placed under home incarceration prior to his sentencing." The state moved the court to dismiss the three charges and it recommended both the presentence investigation and the home incarceration. The court granted the motions to dismiss the charges, and ordered the presentence investigation. It initially ordered home incarceration, but revoked Radcliff's bond shortly thereafter. There is nothing in the record to indicate that Radcliff was promised that he would be granted home incarceration pending sentencing. Nor did the record indicate a promise that home incarceration, if granted, would never be revoked. Radcliff received the benefit of his plea bargain. Even if his counsel's performance in this respect was deficient, he was not prejudiced by it. Radcliff's second assertion, relating to his counsel's failure to communicate with him, suffers the same defect as his assertion that his counsel was ineffective because he permitted Radcliff to plead guilty to charges after the speedy trial period on those charges had expired. Prejudice cannot be established without resort to facts outside of the record. The failure of Radcliff's counsel to respond to any of his phone calls between the plea hearing and the sentencing hearing a month and a half later is not appropriate conduct; it is possible that it even rises to the level of deficient performance. Assuming, arguendo, that his performance was deficient, Radcliff must also demonstrate that the deficient performance resulted in prejudice. Based on the facts contained in the record, the court did not abuse its discretion in denying Radcliff's motion to withdraw his guilty plea. See infra at ___. Radcliff may be in possession of facts that are compelling enough that the court would have granted his motion to withdraw his guilty plea. In that event, the failure of Radcliff's counsel to communicate with him might have resulted in prejudice. Assuming those facts exist, they are necessarily outside the record. The appropriate means for Radcliff to bring the matter to the attention of the court is through postconviction motions pursuant to R.C. 2953.21. Radcliff has also asserted that his trial counsel should have argued that he failed to receive the benefit of his plea bargain in support of his motion to withdraw his guilty pleas. Because Radcliff received the benefit of his bargain, discussedsupra at ___, no prejudice resulted from the failure of his counsel to advance this argument. Finally, Radcliff has asserted that his counsel should have argued that "there were issues concerning the credibility of the alleged victim of some of these charges." In support of this he points to comments his counsel made about the ongoing relationship between Radcliff and the victim, which appear in the transcript of the plea hearing. Because the source of concern was the victim's ongoing relationship with Radcliff, it is clear that Radcliff knew about any potential weakness in the credibility of the witness against him at the time he entered his plea of guilty. It is not reasonably probable that the failure of Radcliff's attorney to argue concerns about the credibility of the victim caused Radcliff to lose a motion he would otherwise have won. Summary Radcliff has not demonstrated that his counsel performed deficiently by permitting him to plead guilty to four charges beyond the end of the speedy trial period. Assuming, for the sake of argument, that his counsel's conduct after the plea hearing was deficient, Radcliff has not demonstrated that he was prejudiced by that performance. Radcliff's first assignment of error is overruled. Speedy Trial Radcliff has asserted that because he was charged with misdemeanors of the first degree, he was entitled to be brought to trial within ninety days of the date of his arrest. R.C.2945.71(B)(2). Pursuant to the Rules of Criminal Procedure, the court "shall not accept such plea without first addressing the defendant personally and informing the defendant of the effect of the [plea] of guilty * * * and determining that the defendant is * * * voluntarily" pleading guilty to a misdemeanor involving a serious offense. Crim.R. 11(D). In addition, the record must affirmatively demonstrate that a meaningful dialog took place when it accepted the pleas. State v. Joseph (1988), 44 Ohio App. 3d 212,213. The court spoke directly to Radcliff when he pled guilty on the ninety-third day after his arrest. It informed Radcliff that he was pleading guilty to misdemeanors which each included the "possible maximum penalty of six months in the Summit County Jail and $1000 fine." In addition, it explained the various trial rights Radcliff was waiving by his guilty plea. After asking for individual pleas to each of the four offenses, and receiving the response "Guilty" to each, the court found that Radcliff had "voluntarily entered those pleas." The court complied with both the procedural and constitutional requirements that are preconditions for accepting a guilty plea to a serious offense misdemeanor from a represented defendant. Radcliff has also asserted that he did not waive his right to a speedy trial when he pled guilty. In general, that assertion is incorrect. Under most circumstances, an individual who pleads guilty waives his right to appeal speedy trial issues. Montpelierv. Greeno (1986), 25 Ohio St. 3d 170. Radcliff has asserted that his guilty plea was a consequence of the deficient performance of his counsel and that, because of this, the court should find that this case is the exception to the general rule. On review, this court is limited to facts contained in the record. App.R. 12. Even if an ineffective assistance of counsel exception to the general rule exists, as suggested in footnote 5 of Montpelier, it would not apply here because Radcliff's assertion that his counsel was ineffective cannot be established from the record. Radcliff has not offered any compelling reasons, which the record supports, for permitting an exception to the general rule. Radcliff's second assignment of error is overruled. Excessive Bond Radcliff has asserted that his constitutional rights were violated when the trial court set his postconviction bond at $100,000/10%. Whether or not he is correct in this assertion, the proper means to challenge an excessive bond was through a habeas corpus action. See, generally, State ex rel. Pirman v. Money (1994), 69 Ohio St. 3d 591. Radcliff's third assignment of error is overruled. Denial of Motion to Withdraw Guilty Plea Radcliff has asserted that the trial court abused its discretion when it refused to permit him to withdraw his guilty plea prior to sentencing. Once a guilty plea is entered, a defendant does not have an absolute right to withdraw it. Statev. Xie (1992), 62 Ohio St. 3d 521, paragraph one of the syllabus. Before he is sentenced he may make a motion to withdraw a guilty plea. Crim.R. 32.1. The Supreme Court of Ohio has agreed that such motions are to be freely allowed and treated with liberality.Xie, 62 Ohio St.3d at 526. In reviewing the motion, the trial court is to conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.Id. at paragraph one of the syllabus. Once the trial court has granted or denied such a motion, however, appellate review is limited to a determination of whether the trial court abused its discretion in reaching that decision. Id. at 527. Unless the trial court acted unreasonably, unconscionably, or arbitrarily, it did not abuse its discretion. State v. Adams (1980), 62 Ohio St. 2d 151,157. The basis of Radcliff's motion is that he "spoke with the Probation Department and a couple of these charges I [pled] guilty to, but I wasn't really guilty to them." Based on the transcript of the hearing, Radcliff clearly admitted he was guilty of committing three of the four offenses with which he was charged. With respect to the fourth, his testimony was ambiguous. After admitting his guilt to the first three, he asked, "Uh, what other charge is there?" The court responded, "The only other one is Petit Theft." Radcliff responded, "That's pretty much it. The other ones[. . .]" These comments can reasonably be interpreted as an admission that he committed the final offense, as well. On appeal, Radcliff has emphasized that the court was "aware that defense counsel had failed to communicate with his client or his [client's] family" and should have specifically inquired about the attorney-client relationship. Radcliff appeared in court with his attorney at the hearing. Radcliff's attorney indicated that he had been asked by Radcliff to move that the pleas be vacated. From this exchange it appears that, despite whatever difficulties they may have had in the past, Radcliff's attorney was acting at Radcliff's direction after speaking with him. In light of the above, it was not unreasonable, arbitrary, or unconscionable for the trial court to deny Radcliff's motion to withdraw his guilty pleas. Radcliff's fourth assignment of error is overruled. III Because Radcliff cannot demonstrate that his counsel was ineffective without reference to facts outside the record, his first assignment of error is overruled. His second assignment of error is overruled because his guilty plea acted as a waiver of his right to a speedy trial. We overrule his third assignment of error because a direct appeal is not the appropriate means to challenge an excessive presentence bond. Because the trial court did not abuse its discretion when it denied Radcliff's motion to vacate his guilty pleas, Radcliff's fourth assignment of error is overruled. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Akron Municipal Court, County of Summit, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to Appellant. Exceptions. ________________________________ WILLIAM R. BAIRD, FOR THE COURT. BATCHELDER, P.J. and WHITMORE, J. CONCUR. 1 In a separate case, pled simultaneously, he was convicted of violating a Temporary Protection Order ("TPO")/CPO, in violation of R.C. 2919.27. Because the charging instrument and the lower court used the term TPO interchangeably with CPO, and because there is no material distinction with respect to this appeal we use CPO to refer to both. 2 Radcliff's third and fifth assignments of error are combined here as the third assignment of error, because both challenge the constitutionality of his postconviction bond and confinement pending sentencing. 3 Although the record is unclear as to how the cases are linked, several documents in the record refer jointly to Case No. 99CRB1628, the instant case, Case No. 99CRB1103, the separate count of violating a CPO, Case Nos. 99CRB3087, and 99CRB3666. 4 The court certification on the App.R. 9(C) statement indicates that it "is a complete and accurate representation of the proceedings in the case of State of Ohio v. James Radcliff, Case No. 99CRB1628, 99CRB3666 and 99CRB3087." The record does not indicate which charges were contained in which cases, nor does it indicate whether the pleas completely disposed of Case Nos. 99CRB3666 and 99CRB3087, or of Case No. 99CRB1103. 5 Radcliff sent a letter to the court prior to the hearing. Although the letter is not included in the record, the court supplemented the record with Radcliff's affidavit that reflects the "substance of a letter sent to the court prior to his sentencing date."

2016-07-06 06:42:19.412492+00

OPINION This case is before us on the Crim. R. 12(J) appeal of the State of Ohio from a decision granting a motion to suppress filed by Defendant, Michael Kimble. The State presents the following single assignment of error: I. Because unprovoked flight in a high crime area is sufficient to support a reasonable, particularized suspicion under Terry, the trial court erred in suppressing the State of Ohio's evidence. After considering the record and the assignment of error, we find that the assignment of error has merit. Accordingly, the trial court's decision on suppression will be reversed and this case will be remanded for further proceedings. The transcript of the suppression hearing reveals the following facts. On June 25, 2000, at about 7:00 p.m., Dayton Police Officer, James Mullins, was dispatched to 715 Oxford Avenue on a 911 disconnect call. Mullins responded to the call, but waited about ten minutes for a backup officer to arrive. Mullins thus arrived at about 7:10 p.m., and parked just past 715, in front of 711 Oxford. 715 Oxford was a single home, and the house next door was a double, numbered 713 and 711. The homes in that location are quite close together. When Mullins pulled up, he saw two people on the porch of 711 Oxford. One person immediately ran off the porch to the east, and went between the houses. The other person began walking casually toward 715 Oxford. According to Mullins, the neighborhood in the area of 715 Oxford is known for drugs, weapons, and prostitution. Mullins, himself, had made seven or eight drug or weapons arrests in that area in the past three years, and knew of 15-20 similar arrests by other officers. When Mullins arrived, he did not see anything illegal being done by the two people on the porch, nor did he have any indication that they were connected with the 911 call, other than their proximity to the house. However, Mullins followed the person who ran away to see if he had something to do with the call. Mullins went down a few yards and ran into Kimble, who was walking out from behind a garage at 701 Oxford. At that time, Mullins ordered Kimble to get down on the ground, but Kimble refused. Kimble did not threaten Mullins, did not act aggressively, and did not make any gestures as if to pull a weapon. However, as a result of Kimble's refusal to get on the ground, Mullins tackled Kimble, took him to the ground, and handcuffed his hands behind his back. Mullins then walked Kimble back to the cruiser. At this time, Kimble told Mullins that he ran away because he was afraid. When Kimble and Mullins arrived at the cruiser, Mullins and his back-up officer (Wendy Stiver) both conducted a "pat-down" search for safety. During the pat-down, Stiver felt a chunky hard substance wrapped in plastic that she believed was cocaine. Stiver then reached in Kimble's pocket and pulled out the packet. Subsequently, Kimble was arrested and charged with possession of cocaine. After hearing the above evidence, the trial court granted the motion to suppress. Unfortunately, the trial court made limited factual findings. Specifically, the court said only that the totality of the circumstances did not justify an investigative stop. In particular, the court felt that more was required than the defendant's presence in front of a building known to be the center of drug distribution activity and the fact that the defendant ran away when approached by police. When we review rulings on motions to suppress, we accept the trial court's factual findings if "they are supported by competent, credible evidence." State v. Retherford (1994), 93 Ohio App. 3d 586, 592. After accepting these facts as true, we independently decide "as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard." Id. (citations omitted). Notably, in making its findings, the trial court did not considerIllinois v. Wardlow (2000), 528 U.S. 119, 120 S. Ct. 673,145 L. Ed. 2d 570, which was issued several months before the suppression hearing. InWardlow, the United States Supreme Court held that a defendant's unprovoked flight from police in an area of heavy narcotics trafficking gives officers reasonable suspicion that the defendant is involved in criminal activity, and justifies an investigative stop. Since the defendant in the present case ran from police in a high crime area, the State contends that the trial court erred in granting the motion to suppress. In response to the State's argument, Kimble makes two points. First, he says that this case differs factually from Wardlow. Second, Kimble argues that even if the police had reasonable suspicion to make an investigatory stop, the State failed to prove that the subsequent "pat-down" search was reasonable. As a preliminary point, we disagree that the facts of Wardlow are significantly different. In Wardlow, the defendant fled after seeing a caravan of police vehicles converge on an area known for heavy drug trafficking. Officers chased him, conducted a pat-down protective search for weapons, and found a handgun. This is not unlike what happened in the present case, i.e., Kimble was in a known drug and weapons crime area, and fled after seeing the police arrive. In Wardlow, the lower courts suppressed the evidence, but the United States Supreme Court felt the motion to suppress should have been overruled. In this regard, the Court rejected the State's request for a "per se" rule, which would authorize the detention of anyone who flees at the sight of an officer. Instead, the Court retained the view that "the totality of the circumstances" is the appropriate test for assessing whether officers have a reasonable suspicion of criminal activity. Id. at ___, 120 S. Ct. 677, 145 L. Ed. 2d 578 (Stevens, concurring in part and dissenting in part). On the other hand, the Supreme Court did specifically focus on two factors: 1) the defendant's presence in an area of heavy narcotics trafficking; and 2) the defendant's unprovoked flight when he noticed the police. Id. at ___, 120 S. Ct. 676, 145 L. Ed. 2d 576. Concerning the unprovoked flight, the Court remarked that: [o]ur cases have recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. * * * Headlong flight — whenever it occurs — is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. * * * And any "refusal to cooperate, without more, does not justify the minimal level of objective justification needed for a detention or seizure." * * * But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not "going about one's business"; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning. Id. at ___, 120 S. Ct. 676, 145 L. Ed. 2d 576-77(citations omitted). Four dissenting members of the Supreme Court agreed that adopting a "per se" rule for either the State or defendants was not wise. However, they stressed that the following factors might be relevant to a decision about a defendant's flight in a particular case: the time of day; the number of people in the area, the character of the neighborhood, whether the officer was in uniform, the way the runner was dressed, the direction and speed of the flight, and whether the person's behavior was otherwise unusual. Id. at ___, 120 S. Ct. 679, 145 L. Ed. 2d 580. After applying these factors, the dissent felt suppression was appropriate because the totality of the circumstances did not justify the stop. Id. at ___,120 S. Ct. 683, 145 L. Ed. 2d 584 (Stevens, concurring in part and dissenting in part). In light of Wardlow, we find that Officer Mullins' investigatory stop of Kimble was appropriate. Although Mullins was not specifically investigating a drug tip, he was aware that the neighborhood in question was a high drug and weapons crime area. Furthermore, Mullins was summoned to the scene via a 911 disconnect call and had no idea what he might encounter when he arrived. Under the circumstances, and upon seeing a person in the immediate area flee when the police arrived, a reasonable officer would believe that criminal activity was afoot. In a similar situation, a majority of the Seventh District Court of Appeals followed Wardlow and found that stopping a fleeing defendant was reasonable. State v. Whitfield (Nov. 1, 2000), Mahoning App. No. 99 CA 111, unreported, p. 3. The majority in Whitfield further found that handcuffing the defendant was a reasonable means of detention during the investigatory stop and did not convert the stop into an arrest. In this regard, the majority relied on the defendant's prior unprovoked flight and the risk that he would flee at the first opportunity if not handcuffed. Id. The Seventh District did emphasize that conducting an investigatory stop and performing a frisk during the stop are "two distinct acts."Id. at 4. As a result, the legality of a stop does not validate a subsequent "frisk." In this context, the Seventh District noted that a frisk may not be based on a belief that the defendant possesses drugs. However, officers may make a protective sweep of the defendant's clothing if they believe he or she is armed and dangerous. Among the circumstances validating this belief are "furtive movements, a noticeable bulge which could be a weapon, and the officers' familiarly with an area that is known for a high incidence of drug or other criminal activity."Id. Ultimately, the majority in Whitfield validated the frisk, by finding that a reasonably prudent officer would have been warranted in believing the defendant was armed. In particular, the majority relied on these facts: 1) the officers had been dispatched to a vacant house based on reported drug use at the house; 2) drug use at the vacant house was a common call; 3) the defendant was trespassing at the house and fled with three other people when the officers arrived; 4) after the defendant was caught, the three others were still in the process of fleeing; 5) the other available police officer ran away to catch another individual, leaving the officer who conducted the frisk without the protection of his vehicle or cover; and 6) the frequent involvement of weapons in drug transactions. Under the circumstances, the court found that the officer acted reasonably in determining, for his own safety, if the detainee had a weapon. While the facts in the present case are somewhat less compelling, we still believe the officers acted reasonably in frisking Kimble. As we mentioned earlier, the neighborhood was known for drugs and weapons, and frequent arrests for such crimes had occurred. Additionally, the person Kimble had been with was not in police custody, and the officers were simply taking prudent steps to ensure their safety. More important, however, the officers still did not know the nature of the 911 call when they frisked Kimble. Specifically, for all the officers knew, a violent crime may have occurred. Admittedly, the 911 call could have been a prank or mistake, or the alleged crime could have been non-violent. Nonetheless, the details were unknown, and the officers acted reasonably, for their safety, in patting Kimble down. Based on the above discussion, we find that the trial court erred in failing to consider the applicability of Wardlow. Furthermore, in view of the record presented, the trial court should have found that the officers had reasonable suspicion to conduct the investigatory stop and to frisk the defendant. Accordingly, the State's single assignment of error is sustained. The decision of the trial court is, therefore, reversed, and this case is remanded for further proceedings. ___________ BROGAN, J. GRADY, J., and YOUNG, J., concur.

2016-07-06 06:42:19.026756+00

Matia

* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was not allowed in (1998), 81 Ohio St. 3d 1515,692 N.E.2d 620. Frank and Cheryl Glover, plaintiffs-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas, case No. CV-297650, in which the trial court granted the motion for directed verdict of Boehm Pressed Steel Company, defendant-appellee. Plaintiffs-appellants assign two errors for this court's review. Plaintiffs-appellants' appeal is well taken. *Page 704 I. THE FACTS On November 1, 1995, Frank and Cheryl Glover, plaintiffs-appellants, filed a five-count complaint in the Cuyahoga County Court of Common Pleas against Glover's former employer, Boehm Pressed Steel Company. Glover alleged that Boehm Pressed Steel had unlawfully discriminated against him in the terms and conditions of his employment in violation of R.C. 4112.01 et seq.; that Boehm Pressed Steel had wrongfully terminated Glover in violation of both federal and state laws prohibiting racial discrimination and retaliatory discharge; that Boehm Pressed Steel, through its employees, had intentionally inflicted emotional distress on Glover by its ratification of outrageous and offensive racist conduct; that Cheryl Glover had suffered a loss of the services and consortium of her husband; and that Boehm Pressed Steel had fraudulently induced Glover into leaving his prior employment with PAR Industries. Count five was voluntarily dismissed by plaintiffs-appellants prior to the beginning of trial. On October 2, 1996, the case came on for a jury final. At trial, the following facts were developed. Glover began his employment with Boehm Pressed Steel on August 2, 1993 as the company's first full-time African-American employee. Glover was hired to be the supervisor of "single hit" operations. "Single hit" refers to a specific type of punch press used in the manufacture of pressed steel items. Soon after beginning his employment at Boehm Pressed Steel, Glover began having difficulty with two employees in his department, Tony Walton and Dennis Smith. Both Walton and Smith refused to take direction, cursed at Glover, and allegedly threatened Glover on more than one occasion. However, Glover testified that neither Walton nor Smith used any words that could be considered to have a "racial overtone" during this period. Glover filed disciplinary reports on Anthony Walton for "unexcused absences and tardiness" on September 2, September 21, October 12, and December 12, 1993. As a result of these disciplinary reports, Boehm Pressed Steel terminated Walton's employment on December 13, 1993. Similarly, Glover filed disciplinary reports on Dennis Smith for "unexcused absences and tardiness" on September 25, October 19, and November 15, 1993. As a result of these disciplinary reports, Smith's employment was terminated on November 15, 1993. During this period, Glover had an ongoing dispute with another employee, David Strunk. In addition to being insubordinate and argumentative, Glover alleged, Strunk cursed him and threatened to kill him with a work boot. Glover also maintained that Strunk had allegedly told the union steward, Lewis Brooks, that he would never work for a "nigger." Brooks did not recall this comment during his trial testimony. As a result of these incidents, management issued a *Page 705 written reprimand to Strunk and warned him that further insubordinate conduct would result in his termination. On February 4, 1994, there was yet another incident between Glover and David Strunk, in which Strunk allegedly activated a punch press while Glover's hands were still in the point of operation. Glover escaped injury, but, due to the serious potential consequences of this act, Boehm Pressed Steel terminated David Strunk that same day. Glover also experienced a problem with Mike Cervelli, a maintenance man with Boehm Pressed Steel, who had used the phrase "nigger-rig" in Glover's presence to describe a certain type of repair. Glover estimated that Cervelli used the racially derogatory term approximately four times before management warned him to stop. Even after management's warning, Cervelli still used the term on one additional occasion. Glover maintained that management maintained a less than-vigilant attitude toward Cervelli's conduct throughout Glover's employment. Glover testified further that he had experienced problems with a fellow supervisor at Boehm Pressed Steel, Marcelo Javanov. Allegedly, Javanov had used the word "nigger" while at the workplace in Glover's presence and maintained a hostile and critical attitude toward Glover. During trial, Javanov testified that he had made the following statement to Glover: "I would never consider calling you the N-word. And if I did it would only be because I was mad at you." Glover repeatedly complained to management regarding Javanov's use of racial slurs and generally demeaning behavior to no avail. In October, 1994, Glover was permanently laid off by Boehm Pressed Steel. Boehm Pressed Steel maintained that Glover was being laid off because the company was moving to a new location in Valley City, Medina County, Ohio, and consequently would be reducing single-hit production significantly. This reduction meant that the company would need only two supervisors to cover the single hit, automatic, maintenance, and tool room areas. Boehm Pressed Steel maintained further that the company did not replace Glover but merely consolidated his former responsibilities under another supervisor. During the trial, plaintiffs-appellants' counsel attempted to move for a mistrial on the record in the presence of the jury. The following exchange between counsel and the trial court occurred: "THE COURT: Mr. Glover, you may step forward, please, and resume the stand. "MS. MARTIN: Your Honor, before he does that I have a motion. "THE COURT: Approach the side bar. Why don't you come up and take the stand, Mr. Glover. *Page 706 "THE WITNESS: Yes, ma'am. "MS. MARTIN: I'd like the record to show I've asked for a mistrial. "THE COURT: Okay. Well, we are going to have a hearing at this time because I indicated we would go on the record with that later. So ladies and gentlemen, you may step out. "* * * "(Thereupon, the following proceedings were had in open court in the absence of the jury:) "* * * "THE COURT: You may be seated. Before commencing with this witness I had asked Mr. Glover to resume the stand for cross-examination. Counsel had indicated she had a motion. I gave her permission to approach the bench and she indicated she had a motion she wished to make for a mistrial based on judicial misconduct and irregularity. And I indicated that she would have access to the record later, but we were going to proceed at this time. And throughout the course of this trial I have given counsel access to make a record. Obviously counsel has a right to supplement the record at any time on appeal should that become appropriate under 9(C). "After walking away from the bench and in front of a jury[,] counsel made the comment that, `At this time I would ask for a mistrial.' And I want to know why you did that. "MS. MARTIN: Because, your Honor, it's important that you entertain this motion now because the — my client is not getting a fair trial. And for you to permit a proceeding to go on in the face of an allegation of judicial misconduct is inappropriate conduct — "THE COURT: And how would that — "MS. MARTIN: — and a violation of the code. "THE COURT: How would that remedy the situation, you speaking up in front of a jury and saying the words, `I want a mistrial?' How is that going to help your client out, that type of conduct? "MS. MARTIN: Your Honor, I would appreciate an opportunity to complete my sentences for the record. "THE COURT: You're in direct contempt of court, and I'm fining you $250. You may be seated. I told you we would go on the record at a later time with regard to your motion for a mistrial. It is going to be denied but you'll have access to the record. Bring the jury out. Don't you dare do that to me again in front of a jury. And that will be docketed." *Page 707 Eventually, the trial court denied appellants' motion for a mistrial. At the close of appellants' case, defense counsel moved for a directed verdict pursuant to Civ. R. 50(A)(4), arguing that appellants had failed to meet the evidentiary burden necessary for the underlying case to proceed to the jury. The trial court granted defense counsel's motion for directed verdict; however, in so doing, the trial court made the following statement: "With regard to Mr. Cervelli, I believe he was the maintenance man. And again, I'm construing the evidence in the light most favorable to the defense. And in large major relying on the testimony of Mr. Glover himself." On November 6, 1996, appellants filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Frank and Cheryl Glover's first assignment of error states: "The trial court construed the evidence at trial in favor of defendant-appellee, and improperly directed a verdict against plaintiff-appellants, even though every element of the discrimination claim was proven." A. THE ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR A DIRECTED VERDICT. Appellants argue, through their first assignment of error, that the trial court incorrectly granted a motion for directed verdict in favor of defendant-appellee. Specifically, appellants maintain that the trial court improperly construed the evidence presented at trial in a light most favorable to defendant-appellee, as evidenced by the trial court's blatant admission in open court. It is appellants' position that had the trial court applied the proper standard of review for a motion for a directed verdict, the appellee's motion would have been denied, as sufficient evidence was presented to enable the case to proceed to the jury for determination on the merits. Appellee argues that a review of the trial court's entire ruling clearly demonstrates that the trial court did, in fact, construe all of the evidence presented in a light most favorable to appellants as required under Civ. R. 50(A). Appellee maintains that the portion of the trial transcript upon which appellants rely merely represents an inadvertent misstatement by the trial court, not the application of an incorrect standard. It is appellee's position that, when viewed in context, the trial courts ruling was proper and supported by the record. Appellants' first assignment of error is well taken. *Page 708 B. STANDARD OF REVIEW FOR AN EMPLOYER-DISCRIMINATION CLAIM. R.C. 4112.02(A) states that it is an unlawful, discriminatory practice: "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." In Byrnes v. LCI Communication Holdings Co. (1996), 77 Ohio St. 3d 125,128, 672 N.E.2d 145, 147-148, the Ohio Supreme Court stated that a plaintiff-employee may prove a claim of employer discrimination pursuant to R.C. 4112.02 by two separate methods: "Discriminatory intent may be established indirectly by the four-part analysis set forth in Barker v. Scovill, Inc. (1983),6 Ohio St. 3d 146, 6 OBR 202, 451 N.E.2d 807, adopted from the standards established in McDonnell Douglas Corp. v. Green (1973),411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668. The Barker analysis requires that the plaintiff-employee demonstrate `(1) that he was a member of the statutorily-protected class, (2) that he was discharged, (3) that he was qualified for the position, and (4) that he was replaced by, or that his discharge permitted the retention of a person not belonging to the protected class.' Id., paragraph one of syllabus." The court stated further that discriminatory intent may also be established by direct evidence of discrimination, "which is evidence other than the four-part demonstration of Barker.Kohmescher v. Kroger Co. (1991), 61 Ohio St. 3d 501,575 N.E.2d 439. A plaintiff may establish a prima facie case by presenting evidence, of any nature, to show that an employer more likely than not was motivated by discriminatory intent. Mauzy [v. KellyServices, Inc. (1996)], 75 Ohio St. 3d 578, 664 N.E.2d 1272, paragraph one of syllabus." Id. at 128-129, 672 N.E.2d at 148. C. STANDARD OF REVIEW FOR A MOTION FOR A DIRECTED VERDICT. Civ. R. 50(A), which sets forth the grounds upon which a motion for directed verdict may be granted, states: "(A) Motion for directed verdict. "(1) When made. A motion for a directed verdict may he made on the opening statement of the opponent, at the close of the opponent's evidence or at the close of all the evidence. *Page 709 "(2) When not granted. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. "(3) Grounds. A motion for a directed verdict shall state the specific grounds therefor. "(4) 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 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." A motion for directed verdict is to be granted when, construing the evidence most strongly in favor of the party opposing the motion, the trial court finds that reasonable minds could come to only one conclusion and that conclusion is adverse to that party. Civ. R. 50(A)(4); Crawford v. Halkovics (1982), 1 Ohio St. 3d 184,1 OBR 213, 438 N.E.2d 890; The Limited Stores, Inc. v. Pan Am.World Airways, Inc. (1992), 65 Ohio St. 3d 66, 600 N.E.2d 1027. A directed verdict is appropriate where the party opposing it has failed to adduce any evidence on the essential elements of this claim. Cooper v. Grace Baptist Church (1992), 81 Ohio App. 3d 728,734, 612 N.E.2d 357, 360-361. The issue to be determined involves a test of the legal sufficiency of the evidence to allow the case to proceed to the jury, and it constitutes a question of law, not one of fact. Hargrove v. Tanner (1990), 66 Ohio App. 3d 693,695, 586 N.E.2d 141, 141-142; Vosgerichian v. Mancini Shah Associates, et al. (Feb. 29, 1996), Cuyahoga App. Nos. 68931 and 68943, unreported, 1996 WL 86684. D. THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR DIRECTED VERDICT OF DEFENDANT-APPELLEE. The trial court improperly granted the motion for directed verdict of Boehm Pressed Steel. In ruling on the motion the trial court relied upon specific evidentiary examples in support of its decision. One such example was Glover's relationship with David Strunk, which the trial court characterized as follows: "With regard to employee Strunk, he apparently did not get along with Mr. Glover. He was insubordinate. He was difficult and so on and so forth. There is double or triple hearsay present at trial that he supposedly made the *Page 710 statement, "I won't work for a nigger. Even if I assume that the statement is true, management again responded to the insubordinate conduct of Mr. Strunk. And it needs to be emphasized that Strunk did not do his job properly, did not work with other employees well and he apparently was not a team player. There is no racial overtone to his conduct. Apparently he was just a poor employee." This characterization by the trial court contradicts the direct testimony of Glover, who testified: "A. Prior to the problems with David I was warned by a gentleman named Lewis Brooks, which at the time was the shop steward. He took me in my office out on the floor and told me that, `Frank — ' he says, `I want to tell you something.' "I said, `What is that, Lewis?' "He said, `David Strunk told me that he is not going to work for no N-words.' "I said, `Well, why are you telling me this?' "He says, `I just thought I might want to warn you.' "I said, `Okay, thank you.' And then from that point on I've had problems with David. The one I just discussed in which led up to the incident of him trying to take my arms off in the press, which he denied." Clearly, in this instance, the trial court construed the evidence regarding David Strunk in a light most favorable to defendant-appellee by finding that Strunk's conduct had "no racial overtone." Such a finding is improper in light of the requirement that the trial court view the evidence in favor of the nonmoving party when considering a Civ. R. 50(A) motion for a directed verdict. Bentley v. Stewart (1992) 71 Ohio App. 3d 510,594 N.E.2d 1061. Similarly, the trial court characterized the reasons for Glover's termination as follows: "After the defendant's moved their small steel plant, and I want to emphasize that this was a small — excuse me, manufacturing facility of approximately 40 employees. 7 of the defendants — 12 machines on which the defendant worked in Mr. Glover's division were eliminated and were not transferred to the new plant, nor were they replaced. In light of this reduction of the machines to work on, the plaintiff was laid off as a supervisor. The remaining duties were spread about and consolidated amongst the other three supervisors. "There has been no testimony brought forward indicating that this was a preternatural dismissal. There is absolutely no testimony whatsoever that this was in retaliation for any conduct. Apparently, there had been no complaints at this time filed with the Civil Rights Commission by Mr. Glover. Any other *Page 711 complaints he had made with regard to the employees, as I stated earlier were very promptly and forcefully addressed by management in this case." Once again, the trial court's statements are in direct contravention of the testimony of Glover, who maintained that the company was aware of the upcoming relocation at the time he was hired: "Q. Okay. Did they talk to — did Mr. Geib talk to you in this interview at all about Boehm Pressed Steel's plan to move? "A. Yes, he did. "Q. Would you please describe what those discussions were? "A. He said that they were not going to be in Cleveland forever. He said that in April they were supposed to make a move from Cleveland to the Valley City area, and then I would be a part of that move. And that he understands that the building that they were in is pretty old, pretty worn down so don't be surprised when you see it. That, you know, `We want to take you with us and you're going to be a part of it.' Assuming the accuracy of Glover's testimony, it is apparent that the trial court again construed the evidence relating to the termination of Glover in a light most favorable to Boehm Pressed Steel in violation of Civ. R. 50(A). For the foregoing reasons, this court finds that the trial court improperly granted the motion for a directed verdict in favor of Boehm Pressed Steel. Appellants' first assignment of error is well taken. III. SECOND ASSIGNMENT OF ERROR The Glovers' second assignment of error states: "The trial court erred in denying plaintiff-appellants' motion for a mistrial since the court arbitrarily prevented counsel from making a record for appeal and misapplied the law to the case." A. THE ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING PLAINTIFFS-APPELLANTS MOTION FOR A MISTRIAL. Plaintiffs-appellants argue, through their second and final assignment of error, that the trial court erred in denying their motion for a mistrial. Due to this court's disposition of plaintiffs-appellants' first assignment of error, the remaining assignment of error is hereby rendered moot pursuant to App. R. 12(A)(1)(c) and will not be considered. *Page 712 Judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion. Judgment reversed and cause remanded. SPELLACY, J., concurs. JAMES D. SWEENEY, C.J., concurs in judgment only.

2016-07-06 06:42:19.059698+00

Connors

This cause comes before us upon an appeal from a finding and sentence for contempt by the Court of Common Pleas of Huron County, Juvenile Division. On February 6, 1981, an employee of the Huron County Welfare Department filed a complaint, alleging Jeani Poth to be a dependent child and asking that her parents be divested of permanent custody. Subsequently, Dennis B. Trimboli, assistant prosecuting attorney, moved the court to order a deposition of the appellant, Karen Poth, the mother of Jeani Poth. At the hearing on February 11, 1981, the court appointed an attorney for the appellant and ordered that she give a deposition. On February 18, 1981, the prosecutor moved the court under R.C. 2945.44 for transactional immunity for the appellant in order to obtain her testimony concerning treatment of her child. The motion was heard by the court and granted by entry filed March 10, 1981. By order dated March 18, 1981, appellant's deposition was set for April 14, 1981. At the deposition, counsel for appellant entered objections to the method by which the deposition was conducted. Due to the error, the motion for contempt filed by the prosecutor was overruled and the deposition was reset for May 3, 1981. At that deposition, appellant refused to answer the questions of the prosecutor based on her Fifth Amendment right against self-incrimination. Another motion for contempt was filed based on appellant's refusal to testify, and the court granted such motion on May 21, 1981. Appellant was sentenced to a term of indefinite incarceration in the Huron County Jail until she should purge herself of contempt, the execution of the sentence being stayed by this court pending this appeal. Appellant's first assignment of error states: "The trial court committed substantial, prejudicial and reversible error in that its finding of contempt was against the weight of the evidence." Appellant contends here that there was full compliance with the court's order of February 11, 1981, for appellant showed up at the appointed time and place for the taking of the deposition. Appellant contends that the mere act of showing up at the proper place and time fulfilled the court's order, and that it was not necessary for appellant to answer the questions asked. Hence, appellant contends that there was full compliance with the court's directive, and that, therefore, *Page 362 there was no basis for a finding of contempt. However, the meaning and implication of the February order are clear, for appellant was instructed to "present herself for adeposition." Furthermore, at the hearing on May 21, 1981, the trial court asked appellant to answer the same question asked at deposition, and appellant again would not answer. In 11 Ohio Jurisprudence 2d, 119-120, Contempt, Section 34, the author states: "* * * Under the rule thus established by the Supreme Court the refusal of the witness to answer proper questions may be contempt. The question the answer to which the witness claims will incriminate him must be material and relevant to the issues involved in the trial, and the witness is not the sole judge of the matter, but it is for the court to determine under the circumstances * * *." (Footnote omitted.) See, also, McGorray v.Sutter (1909), 80 Ohio St. 400; State v. Murray (1910), 82 Ohio St. 305. The author goes on to state, in the same section, that: "Where full statutory immunity is conferred upon the witness so that he may not be prosecuted or subjected to any penalty or forfeiture on account of any transaction, matter, or thing testified to, he may be compelled to testify, and be guilty of contempt in refusing to do so." (Footnote omitted.) 11 Ohio Jurisprudence 2d, supra, at page 120. See, also, Mouser v. Pub.Util. Comm. (Franklin App. 1931), 10 Ohio Law. Abs. 38. Furthermore, if inquiry can be made which does not invade the immunity of the witness who claims that the question would tend to incriminate him, and if it appears to the trial court that his answer would not have the tendency claimed, then the witness should answer or otherwise be in contempt. In re Newton (1967),12 Ohio App. 2d 191 [41 O.O.2d 290]. In the instant case, the questions directed toward appellant were found by the trial court to be material and relevant to the issues of the case, and the court's order directed that appellant answer such questions. Furthermore, appellant was granted transactional immunity so that appellant could testify as to the above matters without incriminating herself. In light of the above, this court finds that the trial court's finding of contempt is supported by the weight of the evidence, and appellant's first assignment or error is not well taken. Appellant's second assignment of error states the following: "The trial court committed substantial, prejudicial and reversible error in granting transactional immunity to Karen Poth pursuant to section 2945.44 of the Revised Code and thereafter finding her in contempt for failing to testify." R.C. 2945.44 states in pertinent part: "(A) In any criminal proceeding in this state, if a witness refuses to answer or produce information on the basis of his privilege against self-incrimination, the court of common pleas * * * shall compel the witness to answer or produce the information, if both of the following apply: "(1) The prosecuting attorney of the county in which the proceedings are being held makes a written request * * * to order the witness to answer * * *; "(2) The court of common pleas informs the witness that by answering, or producing the information he will receive immunity * * *. "* * * "(C) A witness granted immunity under this section may be subjected to a criminal penalty for any violation of section2921.11, 2921.12, or 2921.13 of the Revised Code, or for contempt committed in answering, failing to answer, or failing to produce information in compliance with the order." (Emphasis added.) Appellant contends that the juvenile court lacked authority to grant immunity under R.C. 2945.44, that the grant of immunity was invalid because there was no criminal proceeding initiated against the appellant and that appellant was not a witness at the time of the grant. *Page 363 However, R.C. 2151.21 states: "The juvenile court has the same jurisdiction in contempt as courts of common pleas." Furthermore, R.C. 2151.07 states in pertinent part that: "The juvenile court is a court of record and within the division of domestic relations or probate of the court of commonpleas * * *." (Emphasis added.) While there is no Ohio case authority on the question of whether criminal proceedings must already have been initiated or on whether the person must be a witness at the time of the grant of immunity, the court finds that the facts of this case are sufficient to support the findings of the trial court under R.C.2945.44. R.C. 1.49, in dealing with rules of statutory construction, states that where a statute is unclear or ambiguous, the court may consider the following: "(A) The object sought to be attained; "(B) The circumstances under which the statute was enacted; "(C) The legislative history; "(D) The common law or former statutory provisions, including laws upon the same or similar subjects; "(E) The consequences of a particular construction; "(F) The administrative construction of the statute." SeeState v. Sinito (1975), 43 Ohio St. 2d 98, 101 [72 O.O.2d 54], at fn. 6. Here, the object of the statute is clear, for State v. Broady (1974), 41 Ohio App. 2d 17, at page 23 [70 O.O.2d 18], states that "* * * [t]he key consideration set forth in R.C. 2945.44 is whether or not `the interests of justice' are served by the granting of immunity * * *." The trial court recognized this "key consideration" in making its determination, the court stating that: "The Court finds no criminal proceeding is pending in this state involving the witness Karen Poth, but that the Prosecuting Attorney proffers that one could be easily filed. Little purpose would seem to be served by requiring the filing of a criminal complaint, the Court granting transactional immunity, and the criminal complaint [being] dismissed in order that the prosecutor may pursue a dependency complaint, when the status of the child is of prime importance to the state. "The court further finds that [the] importance of determining the alleged dependent status of a child weighed against the granting of transactional immunity to Karen Poth substantiate the said granting of immunity would further the administration of justice and should be granted." The requirement of the initiation of a criminal proceeding is also put in question by the language of Brown v. Executive 200,Inc. (1980), 64 Ohio St. 2d 250 [18 O.O.3d 446], at page 253, where the court stated: "* * * Contempt proceedings are regarded as sui generis. State v. Timson (1974), 38 Ohio St. 2d 122 [67 O.O.2d 140]. They are neither wholly civil nor wholly criminal actions. Gompers [v.Bucks Stove Range Co. (1911)], supra [221 U.S. 418]. Rather, `[t]hey bear some resemblance to suits in equity, to criminal proceedings and to ordinary civil actions; but they are none of these.' Cincinnati v. Cincinnati District Council 51 (1973),35 Ohio St. 2d 197, at page 202 [64 O.O.2d 129]. * * *" Appellant contends that any violation, however small, of the Ohio statute renders the grant of immunity invalid, making the finding of contempt based on the granting of immunity invalid as well. As support for this contention, appellant cites the case ofStevens v. Marks (1966), 383 U.S. 234, where the court held that immunity is conferred only by strict compliance with procedural requirements of the immunity statutes. However, the ruling in Marks was designed to allow a witness to withdraw his waiver of his rights should it be found that all the procedural requirements of *Page 364 the immunity statute were not followed. The Marks decision followed from the situation where a witness, who had testified before a grand jury on the promise of immunity, was later denied such immunity due to a technical violation of the immunity statute. Hence, in Marks, the prosecution (or state) was attempting to render the immunity invalid, unlike the instant case, where the person testifying (appellant) is attempting to render the grant of immunity invalid. This court, therefore, finds that, based on the facts and circumstances of this case, as well as the meaning and spirit of R.C. 2945.44, that the trial court's grant of immunity under R.C.2945.44 was valid. While there were defects amounting to less than full compliance with the statute, such defects were not sufficient to render the grant of immunity invalid. Appellant's second assignment of error is therefore found not well taken. On consideration whereof, the court finds substantial justice has been done the party complaining and the judgment of the Court of Common Pleas of Huron County, Juvenile Division, is affirmed. This cause is remanded to said court for execution of judgment and for costs. Judgment affirmed. DOUGLAS and BARBER, JJ., concur.

2016-07-06 06:42:19.106249+00

Pryatel

Appellant, National Tires, Inc., appeals the decision of the Board of Tax Appeals ("board") affirming the order of appellee, Edgar Lindley, Tax Commissioner ("commissioner"), assessing franchise taxes, penalties and interest against appellant for the years 1973 to 1975, pursuant to R. C. 5733.05. The record discloses that in 1975 the commissioner *Page 72 amended appellant's franchise tax assessment, based upon net income, for the years 1972 and 1973. Appellant immediately paid the assessments, but filed an application for review and correction of these corporate franchise taxes.1 In 1976, the commissioner issued two additional franchise tax assessments, including penalties and interest, covering the years 1974 and 1975. Appellant also paid these assessments promptly and again filed an application for review and correction of such assessments. Upon consideration of appellant's applications for review and correction of the several years' franchise taxes, the commissioner ordered a refund for the tax paid in 1972, but affirmed the assessments for the years 1973 through 1975. Additionally, he reduced the penalties earlier imposed for these assessments. Appellant appealed to the board.2 The board held a hearing upon the three appeals in 1977. Subsequently, in 1979 the board affirmed the commissioner's decision. Appellant presents the following sole assignment of error in its appeal to this court3: "The Board of Tax Appeals erred in holding that Ohio could lawfully impose upon appellant Ohio Franchise tax measured by net income for the taxable years 1973 through 1975." Appellant challenges the commissioner's assessments for the following reasons. Appellant contends that it is exempt from paying corporate franchise taxes measured by net income, since its business in Ohio consists merely of "solicitation." Under Section 381, Title 15, U.S. Code, a corporation dealing in interstate commerce is immune from such taxes when its activity in another state is limited to "solicitation of orders." Appellant thus concludes that the commissioner's assessments unduly burden interstate commerce by imposing a double *Page 73 tax (Colorado and Ohio) upon the corporation. As such, appellant contends that it has been denied due process of law. Public Law 86-272, codified in Section 381, Title 15, U.S. Code, provides in part: "(a) No State, or political subdivision thereof, shall have power to impose, for any taxable year ending after September 14, 1959, a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both, of the following: "(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and "(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1). "* * * "(c) For purposes of subsection (a) of this section, a person shall not be considered to have engaged in business activities within a State during any taxable year merely by reason of sales in such State, or the solicitation of orders for sales in such State, of tangible personal property on behalf of such person by one or more independent contractors, or by reason of the maintenance, of an office in such State by one or more independent contractors whose activities on behalf of such person in such State consist solely of making sales, or soliciting orders for sales, of tangible personal property." Upon review of appellant's business activity in Ohio, the commissioner concluded that: "The activity engaged in by the applicant within Ohio exceeds the minimum activity threshold under which a state is prohibited from levying a tax on or measured by net income under the provisions of 15 U.S.C. § 381 (P.L. 86-272)." The record before this court is comprised of the transcript furnished by the Tax Commissioner; the testimony of appellant's *Page 74 Ohio District Manager, Vern Thorn, taken before the board; exhibits presented to the board; and, the briefs supplied by counsel for the parties. The record discloses the following pertinent information. Appellant is engaged in the purchase and sale of automotive products manufactured by its parent corporation, The Gates Rubber Company.4 Appellant is a Colorado corporation, based in Denver. As it relates to Ohio, appellant's sales structure is as follows: Doing business under the name of National Products, Inc., appellant sells its line of "Modac" brand automotive parts to NAPA distribution centers in Ohio. There are three NAPA distribution centers (Cleveland, Cincinnati and Columbus) which are appellant's sole customers in Ohio. NAPA is a nationwide affiliation of automotive parts businesses which buy goods from automotive manufacturers and distribute them to retailers. Modac is simply one such line purchased by NAPA. These distribution centers constitute a first tier of sales distribution. The NAPA distribution centers sell the different manufacturer's automotive products under the NAPA brand name to a second tier of distribution known as "jobbers." Jobbers are intermediate wholesalers. In turn, jobbers sell these parts to the third and final tier of customers, retail dealers and fleet operators. Retail dealers are comprised of stores, gas stations and service garages. Fleet operators run truck lines. The board described appellant's sales operations in Ohio as follows5: "With regard to the appellant's automotive parts sales in Ohio the selling force is comprised of two levels: a zone manager and a district manager (ST. 24). The district manager's function is to call upon and give service to distribution centers, `jobbers,' and `dealers' (R. 4). By distribution center is meant the N.A.P.A. distribution center which is the sole customer of the appellant in Ohio (R. 6). The services rendered by the appellant's district manager at the distribution *Page 75 center include checking inventory levels and records and reporting his findings to either the distribution center's purchasing agent or operations manager (R. 7). The district manager also inspects failed merchandise at the distribution center. After verifying failure, the district manager obtains the part number and the price on the failed item and lists this information on a credit form which he in turn signs and mails to Denver. Thereafter, the district manager oversees the destruction of the failed item so as to insure that a subsequent credit is not given on this same article (R. 22-24). The Denver office has never denied credit determined to be due on failed merchandise by district managers (R. 31). In addition to the above-mentioned duties of the district manager at the distribution center, he is directed by the appellant to maintain contact with the distribution center's Service, Purchasing, and Operations Manager in order to `see if there are any particular problems [he] can handle "`right now'"' (Ex. A). "The one thing the district manager does not do at the distribution center is solicit orders. The distribution center obtains the appellant's product by personally ordering these productions on a weekly basis from the taxpayer's Denver facility (R. 7-8, 29-30). "The efforts of the appellant's district manager are not confined to the distribution center. The district manager routinely calls upon `jobbers' or customers of the distribution center in his district. In calling upon a `jobber' the district manager routinely: checks the `jobber's' stock; replaces worn packaging; updates the prices of the `jobber's' catalog with price sheets carried along with him; and passes on promotional material (R. 9-11). Additionally, the district manager, in company with a `jobber,' is directed to call upon `dealers' or a customer of the `jobber' (R. 11). In making such calls, the primary duty of the district manager, as expressly directed by the appellant, is selling (Ex. B.). "In making calls at the `dealer' level, which consists of gas stations, garages and the like, the district manager routinely: installs display boards by nailing them to a wall; straightens up, updates, and adds to the dealer's Modac inventory; changes over competitive lines of products to the Modac brand and, in so doing, changes the identification number of the competitor's product to the corresponding Modac part number and *Page 76 changes the package to one labeled with the Modac brand; promotes sales contests; and leaves current catalogs and price sheets (R. 14-18; Ex. C). "The district manager also makes calls on the `fleet' customers or trucking companies in his district. The `fleet' customer is the customer of a `jobber.' In calling upon a `fleet,' the district manager's efforts are basically the same as at the `dealer' level. The district manager provides and installs belts and hooks to display and identify the taxpayer's product. Further, the district manager attempts to sell theModac brand of products and obtain commitments from `fleet' customers to change over from a competitor's inventory (R. 19-21, Ex. D)." Both the commissioner and the board concluded that the above activities exceeded "mere solicitation of orders and thus the prohibition imposed by 15 U.S.C. § 381 (P.L. 86-272) was inapplicable." The authority cited by the board in its decision to affirm the commissioner was Heublein, Inc., v. South Carolina Tax Comm. (1972), 409 U.S. 275, the United States Supreme Court's most recent interpretation of Section 381, Title 15, U.S. Code. The Court analyzed the intent of Congress in enacting the statute: "The impetus behind the enactment of § 381 was this Court'sopinion in Northwestern States Portland Cement Co. v.Minnesota, 358 U.S. 450 (1959). There we held that `net incomefrom the interstate operations of a foreign corporation may besubjected to state taxation provided the levy is notdiscriminatory and is properly apportioned to local activitieswithin the taxing State forming sufficient nexus to support thesame.' 358 U.S., at 452. Congress promptly responded to the `considerable concern and uncertainty' and the `serious apprehension in the commercial community' generated by this decision by enacting Pub.L. 86-272, 73 Stat. 555, 15 U.S.C. § 381, within seven months. "In this statute, Congress attempted to allay theapprehension of businessmen that `mere solicitation' wouldsubject them to state taxation. Such apprehension arose because, as businessmen who sought relief from Congress viewed the situation, Northwestern States Portland Cement did not adequatelyspecify what local activities were enough to create a `sufficientnexus' for the exercise of the State's power to tax. Section *Page 77 381 was designed to define clearly a lower limit for the exercise of that power. Clarity that would remove uncertainty was Congress' primary goal. * * * "Congress recognized * * * that the accommodation of local and national interests in this area was a delicate matter. The committees reporting the bill to the House and Senate emphasized the difficulty of devising appropriate limitations on state taxing powers. Both Committees called their bills temporary solutions to meet only the most pressing problems created byNorthwestern States Portland Cement. * * *" (Emphasis added.)Id., at 279-281. That Congress has achieved its goal of providing a clear standard "that would remove uncertainty" appears doubtful, since various jurisdictions conflict in their interpretations of this statute. Indeed, in United States Tobacco Co. v. Commonwealth (1978),478 Pa. 125, 386 A.2d 471, certiorari denied (1978),439 U.S. 880, the Pennsylvania Supreme Court noted that the Heublein decision "is uninstructive on the proper interpretation of `solicitation' * * *." Id., at 133. The court concluded that the statutory language should be broadly construed.6 The Pennsylvania court relied upon a recent New York state decision,Gillette Co. v. State Tax Comm. (1977), 56 A.D.2d 475, 393 N.Y. Supp. 2d 186, affirmed (1978), 45 N.Y.2d 846,410 N.Y. Supp. 2d 65, in support of its view. Both United States Tobacco and Gillette share facts similar to the instant case. Gillette had no place of business in New York, did no manufacturing there, had no inventory there other than salesmen's samples and filled all orders from outside the state. United States Tobacco Company shared similar circumstances and, additionally, had 10 "missionary representatives," furnished with company cars, who visited independent wholesalers to inform them of company activities and promotions and, sometimes, to take orders for appellant's products, which were filled and shipped from another state. The representatives had no authority to accept orders although they made "incidental" sales to retail customers. They also set *Page 78 up counter displays and gave away free samples of their product in exchange for counter space. The Pennsylvania court concluded that such activity was exempt from income taxation pursuant to federal law. However, a dissenting judge pointed to a contrary result inClairol, Inc., v. Kingsley (1971), 402 U.S. 902, in which the United States Supreme Court dismissed the case for want of a federal question. The dismissal thus left standing the decision of the New Jersey Superior Court: Clairol, Inc., v. Kingsley (1970), 109 N.J. Super. 22, 262 A.2d 213, affirmed (1970),57 N.J. 199, 270 A.2d 702. The facts in Clairol in our judgment are similar to those in the instant case. There, the court ruled that a sufficient nexus existed between the state and Clairol's business activities to warrant taxation as constitutionally lawful. In short, the jurisdictions are divided as to how strictly the federal statute should be construed.7 The United States Supreme Court has offered little or no guidance to resolve the issue. In the instant case, appeals from the board are governed by R. C. 5717.04. That statute simply requires this court to determine whether the decision below is reasonable and lawful. A review of the record satisfies us that appellant's sales activity in Ohio significantly exceeded mere solicitation. Appellant's zone and district managers performed functions *Page 79 more commonly related to maintaining an on-going business operation. They constantly upgraded stock, maintained current inventories, removed old, defective products and ensured proper credit for them, advised sellers on methods to improve their inventory, negotiated sales between jobbers and dealers, completely changed over competitive products to the Modac line — in short, appellant helped run these businesses in Ohio. Such practices did more than promote goodwill among appellant's customers; rather, they enabled appellant to assume control over its Ohio operations, generating greater income than could be achieved simply through the solicitation of orders. Indeed, appellant could block out the competitive line on which the commissioner made an assessment and substitute its own line on which appellant resists assessment. We conclude that the board properly found that appellant's business in Ohio involved "something more than solicitation." Therefore, we find that a sufficient nexus existed for the state to exercise its taxing authority in compliance with the requisites of the Commerce Clause of the United States Constitution. Heublein, Inc., v. South Carolina Tax Comm., supra;Clairol, Inc., v. Kingsley, supra (109 N.J. Super. 22). The decisions of the board are reasonable and lawful. Accordingly, we overrule appellant's assignment of error. Decisions affirmed. CORRIGAN and COOK, JJ., concur. COOK, J., of the Eleventh Appellate District, sitting by designation in the Eighth Appellate District. 1 The application was filed pursuant to R. C. 5733.11. 2 The board assigned the following case numbers for each of the assessments appealed: case no. 361-B covers 1973; case no. 361-A covers 1974; case no. 361 covers 1975. 3 The three consolidated appeals are designated in this court as case nos. 40699 through 40701 for the years 1973 through 1975, respectively. 4 Vern Thorn testified that appellant's sole line of automotive goods sold in Ohio consists of fan belts, radiator hoses, air, water and heater hoses and hydraulic hoses. 5 Appellant conceded in its appeal to the board that it was not contesting any factual questions, but rather disagreed with the commissioner's conclusions of law. 6 Nevertheless, the majority in United States Tobacco acknowledged that if a business is "involved in something more than solicitation" (without determining how much more), a "state may validly tax that portion of the corporation's taxable income attributable to activity within the state." Id., at 133. 7 In Gillette, supra, the New York State Tax Commission concluded that Gillette's salesmen had practiced "merchandising": The salesmen would visit retailers and "review" the Gillette displays to ensure that they were attractive and in saleable condition. The court, however, disagreed with the commission's conclusion that such "merchandising" activity constituted anything more than "solicitation" and therefore nullified the tax. On the other hand, in Clairol, supra, Clairol's representatives occasionally took inventory of retailer's stock and additionally employed "technicians" in New Jersey to instruct Clairol's customers in how to use its products. Without deciding whether, without the technicians, Clairol's activities exceeded solicitation, the New Jersey Superior Court concluded that Clairol was not immune from taxation under Section 381, Title 15, U.S. Code. Additionally, in Miles Laboratories, Inc., v. Department of Revenue (1976), 274 Ore. 395, 546 P.2d 1081, the state of Oregon denied Section 381 immunity where salesmen arranged advertising displays, maintained stock to replace damaged merchandise, and serviced accounts. The facts in the instant case more closely resemble the additional activities performed in Clairol and Miles than the more passive duties of reviewing displays as carried out by Gillette's representatives. *Page 80

2016-07-06 06:42:19.222988+00

Kerns

The defendant, James Thompson, appellant herein, was tried without a jury and convicted in the Sidney Municipal Court for a violation of Section 731.01 of the ordinances of that city (driving while intoxicated). Upon appeal to this court, six errors have been assigned, which, epitomized, raise but three questions for determination: 1. Is the ordinance under which the defendant was tried and convicted invalid and unconstitutional? 2. Was the defendant unlawfully deprived of a jury trial? 3. Is the verdict and judgment of the trial court contrary to law or against the weight of the evidence? The ordinance under consideration provides as follows: "No person who is under the influence of intoxicating liquor or narcotic drugs or opiates shall operate or be in actual physical control of any vehicle within the city * * *." In discussing the first question, the defendant attacks the ordinance on the ground that it includes the language "or be in actual physical control," whereas the state statute (Section4511.19, Revised Code) on the same subject, as amended October 21, 1953, no longer includes physical control as a possible statutory offense. Municipalities undoubtedly have the authority to adopt and enforce police regulations which are not in conflict with the general laws. Section 3, Article XVIII, Constitution of Ohio. The test to be applied here therefore is whether the city ordinance is in conflict with the state statute, in its present form, and this brings to mind the oft-cited case of Village ofStruthers v. Sokol, 108 Ohio St. 263, the third paragraph of the syllabus of which reads as follows: "A police ordinance is not in conflict with a general law upon the same subject merely because certain specific acts are declared unlawful by the ordinance, which acts are not referred to in the general law, or because certain specific acts are omitted in the ordinance but referred to in the general law, or because different penalties are provided for the same acts, even though greater penalties are imposed by the municipal ordinance." *Page 514 See, also, City of Columbus v. Barr, 160 Ohio St. 209;Greenburg v. City of Cleveland, 98 Ohio St. 282. But with specific reference to the offense charged herein, attention is directed to the case of City of Toledo v. Best,172 Ohio St. 371. In that case, the Supreme Court considered an ordinance of the city of Toledo which contains language identical to that in the ordinance of the city of Sidney which is now under consideration. After recognizing the retention in the city ordinance of physical control as a possible offense and the deletion of physical control from the state statute, the court, nevertheless, upheld the constitutionality of the ordinance. In our opinion, that case provides a conclusive negative answer to the first question presented herein. In attempting to sustain his position with reference to the second question before us, the defendant relies on Section2945.05, Revised Code, which provides that a waiver of a trial by jury shall be in writing, signed, filed in the cause and made a part of the record. The section relied upon, however, does not supersede Section 1901.24, Revised Code, which provides that any cause in a Municipal Court, either civil or criminal, shall be tried to the court unless a jury trial is demanded in writing.Holub v. State, 127 Ohio St. 34; In re Calhoun,87 Ohio App. 193; State v. Partanen, 67 Ohio App. 248. See, also, Hoffman v. State, 98 Ohio St. 137. In the present case, the record fails to show a request by the defendant that he be tried by a jury. In the absence of such a request, his contention that he was unlawfully deprived of a jury trial is without merit. Upon further examination of the record, the third question presented herein must also be answered in the negative. The trial court specifically concluded that the defendant was under the influence of intoxicating liquor; that the defendant was in actual physical control of his vehicle within the city; and that under the undisputed facts and conclusions of law, defendant is guilty as charged. In our opinion, the evidence is of sufficient probative force to sustain the conclusions of the trial court by the requisite degree of proof. The judgment is affirmed. Judgment affirmed. CRAWFORD, P. J., and SHERER, J., concur. *Page 515

2016-07-06 06:42:19.501603+00

DECISION AND JUDGMENT ENTRY {¶ 1} Petitioner, Javier Garcia, has filed a petition for writ of habeas corpus against respondent, Sheriff Mark Wasylyshyn. Petitioner brings this proceeding to contest the amount of bail set as a condition of his release as issued by the Wood County Court of Common Pleas. {¶ 2} Petitioner was indicted on the following four counts: Count 1 — aggravated riot with a gang specification, a violation of R.C.2917.02(A)(2), a felony of the fourth degree; Count 2 — complicity to vandalism, a violation of R.C. 2923.03(A)(2) and (3) and *Page 2 2909.05(A), a felony of the fifth degree; Count 3 — complicity to attempted aggravated burglary, a violation of R.C. 2923.03(A)(2) and (3), 2912.02(A) and 2911.11(A)(1), a felony of the second degree; and Count 4-participating in a criminal gang, a violation of R.C. 2923.42(A) and (B) a felony of the second degree. The trial court set bond at $100,000, no ten percent. {¶ 3} In Ohio, the writ of habeas corpus protects the right to reasonable bail. In re Petition of Gentry (1982), 7 Ohio App. 3d 143,145. If the offense is bailable, the right to reasonable bail is an inviolable one which may not be infringed upon or denied. Id.; andLewis v. Telb (1985), 26 Ohio App. 3d 11, 14-15. As such, a person charged with the commission of a bailable offense cannot be required to furnish bail in an excessive or unreasonable amount. Ex parteLonardo (1949), 86 Ohio App. 289, 291. {¶ 4} The purpose of bail is primarily to secure the accused's presence in court. See, e.g., Wilson v. Telb (Jan. 11, 2001), 6th Dist. No. L-01-1008. In addition to this purpose, Section 9, Article I of the Ohio Constitution and Crim.R. 46 recognize the need to ensure public safety as a consideration for setting bail in felony cases. King v.Telb, 6th Dist. No. L-05-1022, 2005-Ohio-800, ¶ 6. {¶ 5} Pursuant to R.C. 2937.23(A)(3), "* * * bail shall be fixed with consideration of the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of the defendant appearing at the trial of the case." Additionally, in determining the types, amounts, and conditions of bail, Crim.R. 46(C) states that the court shall consider all relevant information, including the nature and *Page 3 circumstances of the crime charged, the weight of the evidence against the defendant, the confirmation of the defendant's identity, the defendant's family ties, employment, financial resources, character, mental condition, length of residence in the community, jurisdiction of residence, record of convictions, record of appearance at court proceedings or of flight to avoid prosecution, and whether the defendant is on probation, a community control sanction, parole, post-release control, or bail. {¶ 6} Crim.R. 46(C)(4) also permits a court to impose a cash bond. After weighing the factors in Crim.R. 46, the trial court may set the amount of bail within its sound discretion. Davenport v. Tehan (1970),24 Ohio St. 2d 91; and Bland v. Holden (1970), 21 Ohio St. 2d 238, 239. Thus, our review in a habeas corpus action which challenges the amount of bond, is limited to whether the trial court abused its discretion. See Hardy v. McFaul, 103 Ohio St. 3d 408, 2004-Ohio-5467, ¶ 7. An abuse of the trial court's discretion occurs when the trial court's actions are unreasonable, arbitrary, or capricious. Gentry, supra, at 146. {¶ 7} In this case, petitioner was indicted on two second degree felonies, one fourth degree felony, and one fifth degree felony. The charges relate to both gang activity, as well as aggravated burglary, all serious offenses. Contrary to the claims presented in his petition, nothing in the record provided indicates that the trial court apportioned the bond to $25,000 for each count. The trial court's judgment entry states only that bond is set at "$100,000, without 10% to apply, with the additional conditions *Page 4 that he has no contact with any of the co-defendants." Consequently, we must view the propriety of the amount set as it relates to the aggregate of the four charges. {¶ 8} Petitioner states that, if released, he would live with his parents in Toledo, Ohio, become re-employed, and would begin attending a community college. Nevertheless, he is only 20 years old and has no substantial ties to the community other than his parents. The nature and number of counts, as well as the possible sentences if convicted, support the implication that petitioner may indeed be a flight risk and that protection of the community is also necessary. {¶ 9} Under the facts and circumstances in this case, we cannot say that the bail amount of $100,000, no 10%, is excessive. Therefore, petitioner alleges no facts that indicate an abuse of discretion by the trial court or that appropriate grounds for independent review by this court exist. See Chari v. Vore (2001), 91 Ohio St. 3d 323, 328, citing toJenkins v. Billy (1989), 43 Ohio St. 3d 84, 85 (writ may be denied without ordering a return in a habeas corpus case involving an excessive-bail claim, where facts alleged do not indicate either an abuse of discretion by the trial court or that appropriate grounds for independent review exist); and In re DeFronzo (1977), 49 Ohio St. 2d 271. We find nothing alleged in the petition that makes it appear that the writ ought to issue. See R.C. 2725.06 (when "petition for a writ of habeas corpus is presented, if it appears that the writ ought to issue, a court or judge authorized to grant the writ must grant it forthwith"). *Page 5 {¶ 10} Accordingly, we decline to issue the writ and petitioner's application for writ of habeas corpus is not well-taken and is denied. Petitioner is ordered to pay court costs. {¶ 11} The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal pursuant to Civ.R. 58(B). {¶ 12} Pursuant to Civ.R. 58(B), the clerk is directed to serve allparties not in default for failure to appear with notice of thisjudgment and its date of entry on the journal. APPLICATION DENIED Mark L. Pietrykowski, P.J., Arlene Singer, J., William J. Skow, J. CONCUR. *Page 1

2016-07-06 06:42:19.528318+00

OPINION Jason J. Lenz appeals the February 8, 2001 judgment of the Seneca County Court of Common Pleas, Juvenile Division, denying his motion for visitation with his minor children at the correctional institution where he is presently incarcerated. On November 17, 2000, a complaint was filed by the Seneca County Department of Job and Family Services (hereinafter "SCDJFS") in the Seneca County Court of Common Pleas, Juvenile Division, alleging that Lila N. Lenz, Appellant's daughter, was dependent and requesting emergency physical custody and temporary custody of Lila N. Lenz. On that same date, another complaint was filed by SCDJFS that contained identical allegations regarding Jason T. Lenz, Appellant's son, and requested the same relief. A consolidated hearing as to the dependency of Appellant's children was held on January 24, 2001, wherein Appellant and Susan Bennett, the children's mother, admitted to the allegations of dependency as to Lila and Jason T. Lenz. During the hearing, Appellant's counsel made an oral motion for Appellant to be able to have visitation with his children at the correctional institution where he was, and currently remains, incarcerated. After the juvenile court declared the children dependent, the court afforded Appellant's counsel an opportunity to address the visitation motion. Appellant's counsel informed the court that Appellant had communicated with the children by telephone, stated Appellant's position that visitation with the children at the institution would be in their best interest, and then referred the court to the Appellant for further explanation. Without testifying, Appellant then informally relayed to the court his desire to visit with the children, explained why he was incarcerated, and related the facts surrounding his criminal convictions. The court then inquired of the other parties as to their positions regarding Appellant's motion. All were opposed with the exception of Susan Bennett. The juvenile court then took the matter under advisement and subsequently denied the motion by way of a written order, filed on February 8, 2001. The principal basis of the order was that Appellant had the burden of proof on the issue but had failed to present any evidence at the hearing. This appeal followed, and Appellant now asserts one assignment of error. The Appellant was denied effective assistance of counsel where his attorney failed to present any evidence on his behalf at the hearing on the Appellant's motion for visitation. Ohio Revised Code section 2151.352 entitles "[a] child, his parents, custodian, or other person in loco parentis of such child . . . to representation by legal counsel at all stages of the proceedings and if, as an indigent person, he is unable to employ counsel to have counsel provided for him[.]" See also Juv.R. 4(A). This court has previously held that "[t]his statutory right to appointment of counsel expands beyond the federal and state constitutional requirements to afford the right to counsel at juvenile proceedings in general." In the Matter of Mull (March 24, 1997), Seneca App. No. 13-96-38, unreported, 1997 WL 155412, *5 (citations omitted); see also State ex rel. Asberry v. Payne (1998), 82 Ohio St. 3d 44, 46 (quoting In the Matter of Mull, supra). Furthermore, "the right to counsel implies effective assistance of counsel." In the Matter of Mull, supra (citing In re Richardson (Aug. 19, 1987), Scioto App. No. CA 1674, unreported, 1987 WL 15980; Williams Cty. Dept. of Social Services Gilman (June 4, 1982), Williams App. No. WMS-81-26, unreported, 1982 WL 6438). The two-part test for determining ineffective assistance of counsel announced in Strickland v. Washington (1984), 466 U.S. 668, 687, and adopted by the Ohio Supreme Court in State v. Smith (1985),17 Ohio St. 3d 98, 100, "has been utilized to give effect to R.C. 2151.352 and Juv.R. 4(A)." In the Matter of Mull, supra (citing In reRichardson, supra). The first prong of Strickland requires a showing that the attorney's performance was deficient. Strickland v. Washington,466 U.S. at 688. Once the client is able to show a deficient performance, the second prong requires a demonstration that the client was prejudiced by counsel's deficient performance. Id. at 694. In the case sub judice, the juvenile court appointed counsel for the appellant. Appellant's counsel represented him at the dependency hearing and on the oral motion for visitation. Upon taking the oral motion under advisement, the juvenile court determined that Appellant, as the incarcerated parent, bore the burden of proving that having the children visit him in prison was in the children's best interest pursuant to In reHall (1989), 65 Ohio App. 3d 88. The juvenile court then found that Appellant had failed to meet this burden because no evidence was presented to the court, and thus, the visitation motion was denied. While this Court affords much deference to counsel, licensed by the State of Ohio, State v. Jones (Sept. 27, 2000), Auglaize App. No. 02-2000-07, unreported, 2000 WL 1420271 (citing State v. Hoffman (1988),129 Ohio App. 3d 403, 407), the failure to present any evidence on an issue raised by counsel and upon which counsel's client bears the burden of proof constitutes a deficient performance. Moreover, when such a failure is the basis of an adverse judgment, prejudice is clearly established. Because the burden was on the appellant to prove that visitation with him at the prison was in the children's best interest, counsel's failure to present any evidence in support of his own motion constituted a deficient performance. Counsel had an obligation to at least have his client testify on this issue, not to merely refer the court to Appellant to explain his position in a non-testimonial fashion. The deficient performance was clearly prejudicial to the appellant because the failure to present any evidence as to why visitation with Appellant was in the children's best interest was the deciding factor in the juvenile court's denial of Appellant's motion for visitation. Thus, Appellant received ineffective assistance of counsel in this respect, and the appellant's single assignment of error is sustained. For these reasons, these cases must be remanded for an evidentiary hearing to allow Appellant to attempt to satisfy his burden of demonstrating that visitation in the correctional institution with his children is in the children's best interest. See In re Hall, supra. The judgments of the Seneca County Court of Common Pleas are hereby reversed and remanded for further proceedings consistent with the foregoing opinion. WALTERS, P.J., and BRYANT, J., concur.

2016-07-06 06:42:19.556395+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JUDGMENT ENTRY. This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1). Plaintiff-appellant, Michael DuPriest, appeals from the summary judgment entered by the Hamilton County Court of Common Pleas in favor of the defendants-appellees, Helping Hands Household Sales, Inc. ("Helping Hands") and the Estate of Allen Sapp ("the Estate") in a negligence action. For the following reasons, we reverse the judgment and remand the cause to the trial court for further proceedings. The Estate arranged for Helping Hands to conduct an estate sale of the personal property located in the deceased's home. After Helping Hands and the Estate determined that the sale would be a "private sale," Helping Hands distributed invitations on behalf of the estate to antique dealers and buyers that it thought would be interested in the property contained in the estate. DuPriest, an antique dealer who had attended previous estate sales managed by Helping Hands, received the following invitation: Private Sale Sat. Sun. April 24th April 25th — 6871 Ken Arbre Exceptional Smalls and Large Empire and Victorian Pieces-(near intersection of Euclid Steward R.) Both days 10 to 3. On April 24, 1999, at approximately 9:30 a.m., prior to the start of the estate sale, DuPriest decided to walk to the right side of the house in order to look through the dining-room window in an effort to see the items that were for sale. Overgrown shrubbery and a thicket of twigs, branches and dried leaves were in front of the dining-room window. As DuPriest approached the window by walking through the middle of the shrubbery and twigs, he fell down a window well that had been covered with wire mesh, but that was hidden from view by ivy that had grown over it, and sustained injuries to his right leg and ankle. DuPriest filed a negligence action against the defendants-appellees, and on October 8, 1999, and October 30, 1999, the trial court entered summary judgment in favor of Helping Hands and the Estate, respectively, without written decisions. This appeal followed. In a single assignment of error, DuPriest argues that the trial court improperly granted summary judgment. Concluding that genuine issues of material fact remain concerning what duty was owed to DuPriest, we sustain the assignment of error. Initially, we note that Helping Hands, for the purposes of summary judgment, conceded that a joint venture existed between Helping Hands and the Estate. In a joint venture, each party to the venture is liable for the negligent and tortious acts of the other committed within the scope of the joint venture.1 For purposes of our analysis as to whether summary judgment was improperly granted in favor of Helping Hands, we assume that a joint venture existed. To prove a negligence claim, a plaintiff must show (1) that the defendant owed a duty of reasonable care; (2) that the defendant breached its duty of care; and (3) that the plaintiff sustained injuries proximately caused by that breach.2 In a premises-liability case, the duty of care owed by the owner or occupier of the premises depends upon the legal status of the injured party, as "Ohio adheres to the common-law classifications of invitee, licensee, and trespasser."3 An invitee is an individual "who rightfully come[s] upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner."4 The rights of an invitee are not absolute but are limited by the scope of the owner's invitation.5 If an invitee goes beyond the area that is reasonably considered to be part of the invitation, the visitor loses his invitee status and becomes either a licensee or a trespasser, depending on whether he goes there with or without the permission of the owner or occupier of the land.6 As there is no dispute that DuPriest would have been an invitee during the hours of the sale and while inside the house, where all of the sale items were located, the parties focus their argument on whether DuPriest exceeded the scope of his invitation when he walked to the right side of the house and made a path through the middle of a thicket of twigs and branches to peer into the dining-room window. The test for construing the scope of an invitation is objective and depends upon how a reasonable person would interpret the purpose for which the land is held open and the purpose for which the landowner wishes the visitor to enter.7 Put simply, the issue here was whether it was reasonable for DuPriest to believe that the area on the side of the house in front of the dining-room window was open to him. Relevant considerations include the landowner or occupier's conduct, the nature of the business conducted on the premises, and the arrangement and design of the premises.8 DuPriest maintained that it was common practice for prospective buyers to walk around a home prior to the start of an estate sale to look into windows and to locate desired items. He introduced into evidence the affidavits of three antique collectors who regularly attended estate sales to support this assertion. Further, he testified in his deposition that upon his arrival at the estate sale there were other buyers looking through the two windows in the front of the house. Finally, there was testimony that two other people attending the sale also peered through the same window that DuPriest had attempted to look through. Fortunately, those two individuals, approaching the window from the side and not walking through the thicket of branches, realized that there was unsafe ground in front of the window and did not step on the wire mesh. The owners of Helping Hands admitted in their depositions that some people did on occasion look into windows, but that it was not a "customary" practice and that Helping Hands did not encourage it. Further, evidence and testimony demonstrated that the yard was unkempt and that there was overgrown shrubbery in front of the windows. The owners of Helping Hands testified that they purposely did not enhance the appearance of the lawn because there were no items for sale outside, such as birdbaths, urns or patio furniture.9 The Estate administrator testified that he did not trim the overgrowth or clear out the dead tree branches prior to the sale, as all the items for sale were located inside the house, and thus there was no reason for prospective buyers to wander around the yard. But the invitation did not specifically state that all the items for sale were located only in the house. DuPriest testified that oftentimes furniture and lawn ornaments were placed out in the yard. Further, Helping Hands was aware that people "occasionally" looked through windows at estate sales, and two other prospective buyers at the sale in this instance looked through the same window. Thus, it was possible that DuPriest could have reasonably believed that this area of the premises was held open to him, and we conclude that there remained a genuine issue of material fact. Additionally, "if the status of a visitor as an invitee depends upon whether the possessor should have known that the visitor would be led to believe that a particular part of the premises was held open to him, then that is a question of fact for the jury."10 Because there was evidence reasonably supporting the inference that Helping Hands and the Estate should have known that DuPriest would believe that the area in front of the dining-room window was open to him, there remained a question of fact to be settled before it could be determined whether DuPriest had lost his invitee status. Therefore, by construing the evidence in a light most favorable to DuPriest, as required under the summary-judgment standard,11 we hold that reasonable minds could differ as to whether DuPriest had exceeded the scope of his invitation by venturing around the house and walking through the overgrown branches to peer into the dining-room window. Though evidence of the unkempt yard and overgrown shrubbery suggested that prospective buyers at the sale were not invited to the dining-room window, there was also evidence that it may have been customary practice to peer through windows, and that Helping Hands and the Estate should have known that and taken appropriate action. In reference to the Estate, we note that a landowner has a duty to warn invitees of any dangerous conditions of which he has or should have knowledge.12 In Ohio, the administrator of an estate "stands in the shoes" of the decedent in defending alleged tort actions.13 If the decedent in this case created the dangerous condition by placing wire mesh over the window well, he had knowledge of the condition. If the Estate, standing in the shoes of the decedent, had actual or constructive knowledge of the condition, then it had a duty to warn invitees of the dangerous condition. Even if it is determined that DuPriest lost his invitee status when approaching the dining-room window and became a licensee or trespasser, the Estate may still have owed a duty to DuPriest. A landowner has the duty of refraining from willfully or wantonly causing injury to the trespasser or licensee.14 As there remain genuine issues of material fact as to DuPriest's status and the duty owed to him by the Estate and Helping Hands, summary judgment was improperly granted in their favor. Accordingly, we sustain DuPriest's assignment of error, reverse the judgment of the trial court, and remand the cause for further proceedings consistent with the law and this judgment entry. 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. Gorman, P.J., Hildebrandt and Winkler, JJ. 1 See Clifton v. Van Dresser Corp. (1991), 73 Ohio App. 3d 202,596 N.E.2d 1075. 2 See Strother v. Hutchison (1981), 67 Ohio St. 2d 282,423 N.E.2d 467. 3 Gladon v. Greater Cleveland Regional Transit Auth. (1996),75 Ohio St. 3d 312, 315, 662 N.E.2d 287, citing Shump v. FirstContinental-Robinwood Assoc. (1994), 71 Ohio St. 3d 414, 417,644 N.E.2d 291. 4 Provencher v. Ohio Depart. of Transp. (1990), 49 Ohio St. 3d 265,266, 551 N.E.2d 1257, 1258. 5 See Gladon, 75 Ohio St.3d at 315, 66 N.E.2d at 291. 6 See id.; Restatement of the Law 2d, Torts (1965), 181-182, Section 332, Comment l. 7 See Conniff v. Waterland, Inc. (Mar. 10, 1997), Geauga App. No. 96-G-1975, unreported. 8 See id. 9 DuPriest testified that one of the reasons he went walking around the house was to see if there was any outdoor furniture or ornaments for sale. 10 See Restatement of the Law 2d, Torts (1965), 182, Section 332, Comment l. 11 See State ex rel. Howard v. Ferreri (1994), 70 Ohio St. 3d 587,589, 639 N.E.2d 1189, 1192. 12 See Stinespring v. Natorp Garden Stores, Inc. (1998),127 Ohio App. 3d 213, 711 N.E.2d 1104. 13 See Baker v. McKnight (1983), 4 Ohio St. 3d 125, 128, 447 N.E.2d 104,107. 14 See Provencher, supra.

2016-07-06 06:42:19.64684+00

OPINION On August 18, 1995, the Stark County Grand Jury indicted appellant, Gary Duane Jones, on one count of gross sexual imposition in violation of R.C. 2907.05(A). Said charge arose from an incident involving an eight year old boy. On September 20, 1995, appellant pled guilty as charged. By judgment entry filed November 1, 1995, the trial court sentenced appellant to a definite term of two years in prison. Appellant served his sentence and was released from prison on or about March 16, 1997. On April 7, 1997, the trial court set a hearing for April 23, 1997 to determine appellant's status pursuant to the Sex Offender Registration Act, R.C. Chapter 2950. On April 18, 1997, appellant filed a motion to dismiss claiming the trial court lacked jurisdiction to hold said hearing due to appellant's release from prison. By judgment entry filed May 12, 1997, the trial court denied said motion. The hearing was eventually held on June 30, 1997. By judgment entry filed July 2, 1997, the trial court adjudicated appellant to be a sexual predator. Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I THE TRIAL COURT LACKED JURISDICTION TO HOLD A HEARING AND FIND DEFENDANT-APPELLANT A SEXUAL PREDATOR. II THE TRIAL COURT ERRED IN USING UNSUBSTANTIATED HEARSAY EVIDENCE IN SUPPORT OF ITS FINDING DEFENDANT-APPELLANT TO BE A SEXUAL PREDATOR. I Appellant claims the trial court lacked jurisdiction to adjudicate him a sexual predator because his hearing pursuant to R.C.2950.09(C)(1) was not held prior to his release from prison. We agree. Pursuant to R.C. 2950.09(C)(1), if an offender convicted of a sexually oriented offense and sentenced prior to January 1, 1997 is still serving the term of imprisonment after said date, the department of rehabilitation and correction shall determine "prior to the offender's release" "whether to recommend that the offender be adjudicated as being a sexual predator." Once such a recommendation is made, the trial court must proceed to determine whether to accept or deny the recommendation. Appellant was incarcerated on or about November 1, 1995 and released on March 16, 1997. By entry filed April 7, 1997, the trial court set a classification hearing for April 23, 1997. On said date, the hearing was continued to May 7, 1997. On May 29, 1997, appellant filed a motion for continuance and time waiver. Appellee, the State of Ohio, argues this filing waived appellant's jurisdictional argument. We disagree. The filing does not bear appellant's signature. Furthermore, the filing was filed by a different attorney than the attorney that had filed the motion to dismiss on April 18, 1997. The record does not contain a notice of substitution of counsel therefore, we conclude the filing does not waive the jurisdictional argument raised sub judice. The classification hearing was eventually held on June 30, 1997. Appellant acknowledges the recommendation from the department of rehabilitation and correction was timely made (before his release from prison). However, appellant argues because the hearing was held after his release, the trial court lacked jurisdiction to adjudicate him a sexual predator. In State v. Brewer (January 12, 1998), Clermont App. No. CA97-03-030, unreported, our brethren from the twelfth district addressed this same fact pattern and held the following: * * * we must conclude that the legislative scheme appears to assume that pre-release classification will occur. Several sections of the statute impose a duty on the offender or on law enforcement officials that is contingent upon the adjudication being made before the imprisoned offender is released. Offenders who, like Brewer, were serving a prison term at the time the statute went into effect, are defined to be `adjudicated as being a sexual predator' if the trial court makes its determination `prior to the offender's release from imprisonment.' R.C. 2950.01(G)(3). (Emphasis added.) The registration provisions (FN2) also support this position. See, e.g., R.C. 2950.03(A)(1) (`[the official in charge of the prison] shall provide the notice [of a duty to register] to the offender at least ten days before the offender is released * * * from the prison term'); R.C. 2950.05(A)(1) (an offender who was serving a prison term when the statute went into effect is required to register with the county sheriff within seven days of coming into the county where he will reside, suggesting that sexual predator classification has occurred prior to the offender's release); R.C.2950.07(A)(1) (for offenders who were serving a prison term when the statute went into effect, the duty to register commences on the date of the offender's release from prison) (Emphasis added.) R.C. 2950.09(D)(1)(a) provides that an offender who is classified as a sexual predator prior to release may file a petition asking the court to determine that he is no longer a sexual predator `one year prior to the offender's release from imprisonment.' Finally, the statement of legislative intent suggests that pre-release classification serves the public interest: `If the public is provided adequate notice and information about sexual predators * * * [i]t can develop constructive plans to prepare * * * for the sexual predator's * * * release from imprisonment * * *.' See R.C.2950.02(A)(1). (Emphasis added.) See, also, two similar opinions from the tenth district, State v. Rhodes (March 24, 1998), Franklin App. No. 97APR06-793, unreported, and State v. Sowards (March 26, 1998), Franklin App. No. 97APA07-907, unreported. We concur with the above reasoning. The legislature, in providing for pre-statute classification, correctly chose to set limits on its retroactivity. To permit sexual predator classifications to be attempted after release would create a burden upon trial courts. Further, once terms of imprisonment are served, trial courts no longer have jurisdiction over adult offenders. Assignment of Error I is granted. II Appellant claims the trial court erred in using hearsay evidence in its determination. Based upon our decision in Assignment of Error I, this assignment of error is moot. The judgment of the Court of Common Pleas of Stark County, Ohio is hereby reversed. By Farmer, J. Hoffman, P.J. and Edwards, J. concur.

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DECISION Plaintiffs-appellants Michael A. Tackett and Norm Chenoweth appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment for defendant-appellee Columbia Energy Group Service Corporation ("Columbia Energy"). Appellants were injured during the course of their employment with Carrier Corporation, a contractor that performed maintenance and repair on the premises of a Columbia Energy building in Columbus, Ohio. Appellants were injured while working on a "chiller," a large air conditioning unit that produces cool air in commercial buildings by heating a solution of lithium bromide and water. After several days of attempts to repair the chiller, with only intermittent success, Tackett, a service technician, and his supervisor, Chenoweth, a former technician, suffered burns when the lithium bromide solution overheated and discharged through a pressure release mechanism known as a "rupture disk" at an estimated temperature of over three hundred forty degrees. The discharge pipe from the pressure release mechanism terminated a short distance above the concrete floor, initially causing hot lithium bromide solution to splatter on appellants. In addition, the discharge pipe itself separated at its point of attachment from the rupture disk, causing more hot lithium bromide solution to spray onto appellants from above, causing further burns. Appellants filed their complaint naming as appellees Columbia Energy and Columbia Gas of Ohio, Inc. Columbia Gas appears to have been a tenant occupying some portion of the premises. Columbia Gas is no longer a party to this action, having been dismissed without prejudice prior to the grant of summary judgment in the trial court. Appellants' complaint alleges negligence and negligence per se on the part of Columbia Energy for failure to properly install and maintain the equipment which led to appellants' injuries, and failure to comply with specific legislative enactments relating to the construction and maintenance of unfired pressure vessels such as the chiller in question. With respect to their negligence claim, appellants alleged that the chiller unit was defectively installed or maintained because the rupture disk discharge pipe did not, as specified in the installation manual, terminate in a floor drain but, rather, discharged directly on the concrete floor, allowing the hot lithium bromide solution to splash onto appellants. In addition, appellants alleged that the discharge pipe was made of PVC plastic rather than CPVC, the material specified in the manual, which has better performance at high temperatures. Appellants did not specify, with respect to their negligence per se claim, which specific statute Columbia Energy had failed to comply with. Appellee then moved for summary judgment, which the trial court granted. The trial court concluded that there remained no material issue of fact on the question of whether the work performed by appellants was inherently dangerous, thus precluding liability on the part of appellee as the landowner. The trial court further found that appellants had not demonstrated negligence per se, because the statutes invoked by appellants in opposition to summary judgment did not give rise to such a liability. The trial court accordingly entered summary judgment in favor of appellee on all counts in appellants' complaint. Appellants have timely appealed and bring the following assignment of error: The Trial Court erred to the prejudice of Plaintiffs-Appellants in finding that there were no genuine issues of material fact and granting summary judgment in favor of Defendant-Appellee, Columbia Energy Group Service Corporation. Appellants essentially argue two distinct issues in support of their assignment of error. First, appellants argue that the trial court granted summary judgment based on negligence per se issues which were not raised and argued in appellee's motion, and upon which appellants consequently did not have an obligation to present evidence going to their burden of proof at trial. Second, appellants argue that the trial court improperly concluded that the issue of whether or not an activity undertaken by a contractor on a landowners property is inherently dangerous, thus shielding the landowner from liability, was a question of law for the court to resolve, rather than an issue of fact for the jury. The present matter was decided on summary judgment. Civ.R. 56(C) states that summary judgment shall be granted if: * * * [T]he pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * Accordingly, summary judgment is appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Tokles Son, Inc. v. Midwestern Indemn. Co. (1992),65 Ohio St. 3d 621, 629, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64. Appellate review of summary judgments is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App. 3d 579,588; Midwest Specialties, Inc. v. Firestone Tire Rubber Co. (1988),42 Ohio App. 3d 6. We stand in the shoes of the trial court and conduct an independent review of the record. As such, we must affirm the trial court's judgment if any of the grounds raised by the movant before the trial court are found to support it, even if the trial court failed to consider those grounds. Dresher v. Burt (1996), 75 Ohio St. 3d 280; Coventry Twp. v. Ecker (1995), 101 Ohio App. 3d 38. The Ohio Supreme Court further elaborated on the moving party's burden when seeking summary judgment in Dresher, supra, at 293, in which the court stated: Accordingly, we hold that a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. [Emphasis sic.] The court in Dresher, therefore, returned to a former standard set forth in Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112, 115, in which the court made it clear that the moving party bears the burden of specifically identifying the issues to be relied upon in a grant of summary judgment, in order to provide proper notice enabling the nonmoving party to formulate the appropriate response: * * * Rather than eliminate the non-moving party's burden, the requirement that the moving party, here appellee, be specific in his reasons for requesting summary judgment provides the non-moving party with the information needed to formulate an appropriate response as required by Civ.R. 56(E). Accordingly, if a party files a motion based on some but not all issues in the case, the trial court should, under most circumstances, restrict its ruling to those matters raised and argued by the parties in the motion for summary judgment. Ferro Corp. v. Blaw Knox Food Chem. Equip. Co. (1997), 121 Ohio App. 3d 434, 443. We first address appellants' negligence claim against Columbia Energy, which falls under Ohio's "frequenter statute," R.C. 4101.11: 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. The Ohio Supreme Court has stated that the duty created under the frequenter statute is "not * * * substantially different from that imposed at common law upon an owner of property." Westwood v. Thrifty Boy (1972), 29 Ohio St. 2d 84, paragraph one of the syllabus. The statute "requires no more care than is owed by an owner of property to an invitee." Debie v. Cochran Pharmacy-Berwick, Inc. (1967),11 Ohio St. 2d 38, 42. Because the frequenter statute therefore merely codifies the common law of negligence, we will examine appellants' claim under that standard. In order to recover from Columbia Energy, appellants must establish that Columbia Energy owed Tackett and Chenoweth a duty, that Columbia Energy breached that duty, and that the breach of that duty was the proximate cause of injuries to appellants. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77. The common law duty owed by a property owner to an individual depends on the status of the individual as an invitee, licensee, or trespasser on the property. Railroad Co. v. Harvey (1907), 77 Ohio St. 235, 240. It is uncontroverted in the present case that Tackett and Chenoweth, being on the premises by invitation of the property owner for a purpose beneficial to the owner, were business invitees. Generally, a landowner owes an invitee a duty of ordinary care, including a duty to maintain premises in a reasonably safe condition and to warn the invitee of latent or concealed defect of which the owner has or should have knowledge. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St. 2d 51, 52-53. A property owner must exercise ordinary care to maintain the premises in a reasonably safe condition so as not to expose invitees unreasonably to danger. The J.C. Penney Co., Inc. v. Robison (1934), 128 Ohio St. 626, paragraph one of the syllabus. While a property owner owes business invitees a higher duty of care than that owed any other class of individual, the property owner is not an insurer of an invitee's safety. Englehardt v. Phillipps (1939), 136 Ohio St. 73, 77. Ohio recognizes, however, a significant exception, involving "inherently dangerous" work, to the general rule addressing the duty of a landowner to an invitee: * * * Where 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. * * * One who engages an independent contractor to do work for him ordinarily owes no duty of protection to the employees of such contractor, in connection with the execution of the work, who proceeds therewith knowing and appreciating that there is a condition of danger surrounding its performance. Wellman v. The East Ohio Gas Co. (1953), 160 Ohio St. 103, paragraphs one and two of the syllabus. While some exceptions to the Wellman doctrine exist, most significantly that set forth in Hirschbach v. Cincinnati Gas Elec. Co. (1983), 6 Ohio St. 3d 206, involving situations in which the landowner actively participates in, controls, or directs the work of the contractor, the parties agree that these exceptions do not apply on the facts of the present case. The question of whether a duty exists which would give rise to liability for negligence is a question of law. Mussivand v. David (1989), 45 Ohio St. 3d 314, 318. As an extension of this determination, Ohio court's have generally treated the issue of whether employment is inherently dangerous as a question of law to be determined by the court. Sopkovich v. Ohio Edison Co. (1998), 81 Ohio St. 3d 628, 643; Best v. Energized Substation Serv., Inc. (1993), 88 Ohio App. 3d 109. Recently, in the case of Frost v. Dayton Power Light Co. (2000),138 Ohio App. 3d 182, Ohio's Fourth Appellate District aptly summarized the test to determine whether work is inherently dangerous for purposes of the Wellman exception to landowner liability: * * * [T]he performance of a task is inherently dangerous when the independent contractor recognizes or should recognize that a degree of danger surrounds the performance of the task for which he was engaged. In answering the foregoing question, courts should not limit the inquiry to the specific task being performed. Rather, courts also should consider the environment in which the task is performed. * * * [Id. at 198.] In the present case, the trial court found that appellants were engaged in inherently dangerous work when they were injured. The court based its determination on the fact that appellants had received extensive specialized training on maintenance of the chiller unit, that the chiller unit itself involved a process utilizing liquids at high temperatures and pressures, and that appellants' work occasionally required them to wear protective equipment and clothing, which would be taken with them to the job site in the company truck. We agree with the trial court's conclusion that, as a matter of law, working on the chiller units in question as they are described in the record must be found to be inherently dangerous. We are unpersuaded by appellants' argument, based upon statements in their deposition and affidavits, that they did not personally believe that working on a chiller unit was inherently dangerous, and that had the rupture disk discharge piping not been defective, they would have suffered no injury from the over pressurization and subsequent liquid release from the chiller. First, as we have set forth above, a determination of whether employment is inherently dangerous is a question of law to be addressed by the court; the court was not obligated to accept legally conclusory statements in appellants' affidavits as raising a material issue of fact on the question. Second, "inherently dangerous" is not synonymous with "inevitably catas-trophic." For every occupation or task classified as inherently dangerous, one would still find the vast majority of cases where the work was undertaken without mishap or injury; otherwise, there would be little likelihood of finding anyone to undertake work such as painting electrical substations, working on construction high-rise construction sites, or dismantling a furnace, all occupations which have been found by courts to be inherently dangerous. Sopkovich, supra; Bond v. Howard Corp. (1995), 72 Ohio St. 3d 332; Adkins v. Armco Steel Co. (Apr. 15, 1996), Butler App. No. CA95-07-119, unreported. The question of whether an occupation is inherently dangerous is one of probabilities based upon the nature and circumstances of the work, and is not to be determined after the fact based upon the unfortunate outcome in a particular case.1 We therefore find that the trial court did not err as a matter of law in concluding that the work undertaken by appellants in maintaining and repairing the chiller unit on appellee's premises was inherently dangerous by its nature. The trial court therefore did not err in granting summary judgment for Columbia Energy on appellants' negligence claim. We now turn to issues surrounding appellants' claim that appellee was negligent per se. Appellants' complaint generally alleged that Columbia Energy was negligent per se by "failing to comply with specific legislative enactments relating to the construction and/or maintenance of unfired pressure vessels." (Paragraph 4 of appell-ants' complaint.) Appellants did not set forth a specific statute in the complaint which they alleged gave rise to negligence per se on the part of Columbia Energy. In Columbia Energy's motion for summary judgment, it was accordingly pointed out that no specific statute had been relied upon for the negligence per se claim. Appellants' responded in their memo contra summary judgment that R.C. 4104.12, governing inspection requirements for certain boilers and pressure vessels, had not been complied with by Columbia Energy: All boilers, except boilers mentioned in section 4104.04 of the Revised Code, shall be inspected when installed and shall not be operated until an appropriate certificate of operation has been issued by the superintendent of the division of industrial compliance. The certificate of operation required by this section shall not be issued for any boiler which has not been thoroughly inspected during construction and upon completion, by either a general or special inspector, and which does not conform in every detail with the rules adopted by the board of building standards and unless, upon completion, such boiler is distinctly stamped under such rules by such inspector. R.C. 4104.01 defines boilers for purposes of R.C. 4104.12: (C) "Boiler" means a closed vessel in which water is heated, steam is generated, steam is superheated, or any combination thereof, under pressure or vacuum for use externally to itself by the direct application of heat from the combustion of fuels, or from electricity or nuclear energy. "Boiler" includes fired units for heating or vaporizing liquids other than water where these units are separate from processing systems and are complete within themselves. The Ohio Supreme Court has defined the law of negligence per se in Ohio as follows: * * * Where a legislative enactment imposes upon any person a specific duty for the protection of others, and his neglect to perform that duty proximately results in injury to such another, he is negligent per se or as a matter of law. * * * Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence pre se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case. Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, paragraphs two and three of the syllabus. Appellants did not offer any evidence in opposition to summary judgment indicating that the chiller unit in question fell within the definitions of R.C. 4104.01(C) and thus within the ambit of R.C. 4104.12. Appellant Tackett's affidavit avers that the chiller so falls within the definition of a boiler and is subject to the inspection requirements, but Tackett's affidavit does not make the necessary, complementary, averment that he is qualified to attest to the applicability of the inspection statute in question to the chiller. In fact, Tackett's deposition testimony is directly contradictory: Q. * * * Do you have any information to the effect that a permit or an inspection of the chiller unit is required, as far as you know? A. I wouldn't know. [Tackett depo. at 68.] In order to establish their claim of negligence per se, appellants bore the burden of establishing the applicability of a statute giving rise to a legal duty on the part of appellee. While the materials before the trial court did identify a statute, its applicability was never shown through competent evidence. Appellants likewise pre-sented no legal authority for the proposition that failure to undertake R.C. 4104.12 inspections of a chiller unit would constitute negligence per se. Based on the materials before the trial court, we conclude that the trial court did not err in finding that there remained no material issue of fact on the question of negligence per se, and in granting summary judgment for appellee. Based upon the foregoing we find that the trial court did not err in granting summary judgment for appellee Columbia Energy on both appellants' negligence and negligence per se claim, and appellants' assignment of error is accordingly overruled. The judgment of the Franklin County Court of Common Pleas granting summary judgment for Columbia Energy is affirmed. LAZARUS and KENNEDY, JJ., concur. 1 We note that this leads us to reject appellee's equally untenable argument that, because the repair job on the chiller in the case before us did go awry leading to serious injuries for appellants, the task must, based upon this outcome, be found to be inherently dangerous.

2016-07-06 06:42:19.815286+00

OPINION *Page 2 {¶ 1} On December 5, 2005, the Stark County Grand Jury indicted appellant, Dale Smith, on one count of aggravated robbery in violation of R.C. 2911.01, one count of felonious assault in violation of R.C.2903.11 and one count of intimidation of an attorney, victim or witness in a criminal case in violation of R.C. 2921.04. Said charges arose from an incident wherein appellant struck his coworker, Ricky Miles, after Mr. Miles refused to give appellant money. Thereafter, appellant threatened Mr. Miles with physical harm to prevent him from pursuing criminal charges. {¶ 2} On January 20, 2006, appellant waived his right to counsel following a hearing on the issue. A jury trial commenced on January 30, 2006. Appellant proceeded pro se. The jury found appellant not guilty of the aggravated robbery charge, not guilty of the felonious assault charge, but guilty of the lesser included offense of assault and guilty of the intimidation charge. By sentencing entry filed February 8, 2006, the trial court sentenced appellant to an aggregate term of four years in prison. {¶ 3} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I {¶ 4} "THE TRIAL COURT DEPRIVED APPELLANT OF HIS RIGHT TO COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AS THE COURT FAILED TO ENSURE THAT APPELLANT HAD MADE A VOLUNTARY, KNOWING AND INTELLIGENT WAIVER OF HIS RIGHT TO COUNSEL." *Page 3 II {¶ 5} "APPELLANT'S CONVICTION FOR INTIMIDATION OF AN ATTORNEY, VICTIM OR WITNESS IN A CRIMINAL CASE WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE." I {¶ 6} Appellant claims the trial court erred in failing to ensure that he had voluntarily, knowingly and intelligently waived his right to counsel. We disagree. {¶ 7} "The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment." Faretta v.California (1975), 422 U.S. 806, 807.1 In State v. Gibson (1976), 45 Ohio St. 2d 366, syllabus, the Supreme Court of Ohio held the following: {¶ 8} "1. The Sixth Amendment, as made applicable to the states by theFourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily, and knowingly and intelligently elects to do so.Faretta v. California (1975), 422 U.S. 806, 95 S. Ct. 2525,45 L. Ed. 2d 562. {¶ 9} "2. In order to establish an effective waiver of right to counsel, the trial court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right." *Page 4 {¶ 10} Crim.R. 44 governs assignment of counsel. Subsections (A) and (C) state the following: {¶ 11} "(A) Counsel in serious offenses {¶ 12} "Where a defendant charged with a serious offense is unable to obtain counsel, counsel shall be assigned to represent him at every stage of the proceedings from his initial appearance before a court through appeal as of right, unless the defendant, after being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily waives his right to counsel. {¶ 13} "(C) Waiver of counsel {¶ 14} "Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22. In addition, in serious offense cases the waiver shall be in writing." {¶ 15} Although appellant concurs with the state that the trial court held a hearing on the issue of representation on January 20, 2006 pursuant to Crim.R. 44, he nonetheless argues the trial court's explanation of his rights was deficient as the trial court failed to advise him of "possible defenses and circumstances in mitigation." Appellant's Brief at 6. {¶ 16} During the hearing, the trial court informed appellant of the charges against him and the possible sentences, and told him he would have to follow the Rules of Evidence and the Rules of Criminal Procedure. January 20, 2006 T. at 4-5, 8-12. Appellant indicated he understood. Id. The trial court also told appellant, "With all my experience and all my knowledge, I would not represent myself." Id. at 15. Thereafter, the following exchange between appellant and the trial court occurred: *Page 5 {¶ 17} "THE COURT: And do you understand that there are several defenses to these allegations which may be available to you, but there are rules governing affirmative defenses or mitigating offenses and that, your lack of knowledge of their existence or the appropriate procedure for introducing them will not be grounds for appeal if you miss them? Do you understand that? {¶ 18} "THE DEFENDANT: Yes. {¶ 19} "THE COURT: And do you understand that even though I'm going to read to the jury what I'm required to from the Ohio Jury Instructions, instructing the jurors not to hold it against you, that you're going to be representing yourself, that notwithstanding my reading that, the fact that you're representing yourself may impart a negative connotation to the jury, which may be detrimental to you? Do you understand that? {¶ 20} "THE DEFENDANT: I don't see how, but I understand what you're saying. {¶ 21} "THE COURT: Do you understand the nature of the charges pending against you? {¶ 22} "THE DEFENDANT: Yes, all three. {¶ 23} "THE COURT: And do you understand the range of punishment which could be imposed? {¶ 24} "THE DEFENDANT: Yes, I do. {¶ 25} "THE COURT: Do you understand the defenses which are available to you? {¶ 26} "THE DEFENDANT: Somewhat I have in mind, yes. {¶ 27} "THE COURT: So you have a strategy in mind? {¶ 28} "THE DEFENDANT: Yes, I do. *Page 6 {¶ 29} "THE COURT: Based upon your knowledge of the defenses against you? {¶ 30} "THE DEFENDANT: My knowledge of the offense and my knowledge of the victim and the atmosphere, the chain of crime took place. {¶ 31} "THE COURT: And you are also aware of the circumstances and mitigation that you can present? Is that what you're telling me? {¶ 32} "THE DEFENDANT: No. I, that's not what I'm saying. I just--basically, was saying I do have a defense prepared. {¶ 33} "THE COURT: Well, mitigation is something that would lessen, ah, the punishment, lessen the acts which you committed. Defenses are things that are defenses to what you did. And you've told me that you feel that you understand the defenses; is that correct? {¶ 34} "THE DEFEDANT: Yes. {¶ 35} "THE COURT: And mitigation is not a defense, but it's explaining why you did, something that reduces the severity of it. Do you understand that? {¶ 36} "THE DEFENDANT: Yes. {¶ 37} "THE COURT: And so you feel that you understand the defenses and mitigating circumstances surrounding these charges? {¶ 38} "THE DEFENDANT: Well, ah- {¶ 39} "THE COURT: I'm not asking you for specifics. I'm just asking if you feel that you understand the defenses available to you and the mitigating circumstances that you want to bring forward? {¶ 40} "THE DEFENDANT: Yes, because the charges are trumped up anyway. It's a simple assault trumped up. *Page 7 {¶ 41} "THE COURT: Mr. Smith, in light of the penalties, prison terms you might suffer if you're found guilty and in light of all the difficulties of representing yourself, is it still your desire to represent yourself and to give up your right to be represented- {¶ 42} "THE DEFENDANT: Yes. {¶ 43} "THE COURT: — by an attorney? {¶ 44} "THE DEFENDANT: Yes." Id. at 18-21. {¶ 45} Upon review of the hearing transcript, we find the trial court adequately covered the issues of possible defenses and circumstances in mitigation given appellant's statement that he had a strategy prepared. We note appellant's strategy was partially effective because the jury returned verdicts of not guilty on the aggravated robbery and felonious assault charges. {¶ 46} Assignment of Error I is denied. II {¶ 47} Appellant claims his conviction for intimidation of an attorney, victim or witness in a criminal case was against the sufficiency and manifest weight of the evidence. We disagree. {¶ 48} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks (1991), 61 Ohio St. 3d 259. "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." Jenks at paragraph two of the syllabus, following Jackson v.Virginia (1979), 443 U.S. 307. On review for manifest weight, a reviewing court is to examine the entire record, weigh the *Page 8 evidence and all reasonable inferences, consider the credibility of witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."State v. Martin (1983), 20 Ohio App. 3d 172, 175. See also, State v.Thompkins, 78 Ohio St. 3d 380, 1997-Ohio-52. The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. {¶ 49} Appellant was convicted of intimidation of an attorney, victim or witness in a criminal case in violation of R.C. 2921.04(B) which states the following: {¶ 50} "No person, knowingly and by force or by unlawful threat of harm to any person or property, shall attempt to influence, intimidate, or hinder the victim of a crime in the filing or prosecution of criminal charges or an attorney or witness involved in a criminal action or proceeding in the discharge of the duties of the attorney or witness." {¶ 51} As stated in Count 3 of the Bill of Particulars filed January 10, 2006, the alleged intimidation was against Mr. Miles: {¶ 52} "Defendant threatened continued physical harm to Ricky Miles in an attempt to influence, intimidate, or hinder Ricky Miles, the victim of the crimes described in the Bill of Information to Counts 1 and 2, above, from the filing or prosecution of criminal charges against defendant." {¶ 53} Appellant argues the only witness to the alleged intimidation was Mr. Miles, the victim, and because the allegation was unsubstantiated, the evidence was insufficient to convict him of the charge. Mr. Miles testified during the trial and stated a *Page 9 few weeks after he had filed criminal charges, appellant and his girlfriend came to his home and the following ensued: {¶ 54} "Q. And what did he [appellant] say? {¶ 55} "A. There was some small talk, dialogue; but he said you better drop the charges. He says I ought to come in the house and whip your ass all over again right now, he says you better drop the charges. Then he got irate. He says I will go on court records; and he said if you don't drop the charges, I'm going to kill you, I'm going to kill you, when I go to prison, when I get out, I'm going to kill you if I don't get you before. {¶ 56} "* * * {¶ 57} "Q. Well, what did you do then? What did you do next? When did you learn that he had left? {¶ 58} "A. Well, he talked to me through the window a little bit; and he seemed to calm down. He offered me some money if I dropped the charges. I don't remember exactly what, I just kind of blew it off. He said I guess it is not going to be the same between the two of us. I said no kidding. Then he left." T. at 229-231. {¶ 59} A third individual, Ron Schaar, observed appellant and his girlfriend at Mr. Miles's home a few weeks after the initial incident and heard arguing, but did not hear the actual conversation. T. at 327-328. Mr. Schaar testified he heard bits and pieces, including appellant say, "if I go to prison I'll come back and I'll come at you." T. at 329. {¶ 60} One witness, if believed by the trier of fact, is sufficient to prove any element of the offense. The issue of witness credibility is clearly within the province of the jury. State v. Jamison (1990),49 Ohio St. 3d 182, certiorari denied (1990), 498 U.S. 881. *Page 10 {¶ 61} We find the direct testimony of Mr. Miles to be sufficient to establish the offense of intimidation. This direct testimony was substantiated by Mr. Schaar who observed appellant and his girlfriend at Mr. Miles's home a few weeks after the incident. It is further corroborated by appellant's threat following the incident, "you better not call 911 or I'll come back and finish what I started." T. at 212. {¶ 62} Upon review, we find sufficient, credible evidence in the record to support the guilty finding for the offense of intimidation, and no manifest miscarriage of justice. {¶ 63} Assignment of Error II is denied. {¶ 64} The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed. By Farmer, J. Hoffman, P.J. and Edwards, J. concur. *Page 11 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. 1 The Faretta case includes a thorough historical analysis on the issue of selfrepresentation. *Page 1

2016-07-06 06:42:19.842738+00

Appellant Darrick Glenn was convicted of violating R.C. 2925.11(A), possession of cocaine, a first-degree felony. The trial court sentenced Glenn to four years' incarceration. Glenn appeals his conviction, raising three assignments of error. Glenn contends in his first assignment that the trial court erred in overruling his motion to suppress evidence seized from his automobile. In his second assignment, Glenn contends that the trial court erred by not granting his motion for a continuance. In his last assignment, Glenn contends both that the trial court erred by not granting his Crim.R. 29 motion and that his conviction was not supported by sufficient evidence. Arlington Heights Police Officer Buxsel stopped an automobile driven by Glenn because it did not have a license-plate light. Upon learning that Glenn was driving with a suspended license, Buxsel arrested Glenn. Officer Vaughn, who had responded to Buxsel's call for help, arrested Glenn's passenger, Kenneth Mattress, on an outstanding felony warrant. Because neither Mattress nor Glenn could drive the car, Buxsel called a tow truck to remove it. Before the impoundment, Officers Drake and Vaughn inventoried the automobile and found empty baggies inside the car, what appeared to be marijuana seeds on the floor of the car, and marijuana under the hood. At this point, Buxsel provided Glenn with his rights under Miranda v. Arizona.1 At a later point, while Glenn was still seated in the cruiser, Vaughn also provided him with his Miranda rights. Buxsel asked Glenn if he could search the trunk, hood, and glove compartment of the car. Glenn gave oral consent, but when the key could not be found, he withdrew the consent because his mother would be upset if the car was damaged by opening the trunk and glove compartment without a key. Officer Vaughn requested a drug canine, and Buxsel took Glenn and Mattress back to the police station for processing. Buxsel was later advised that the dog had indicated that the glove compartment and the trunk contained narcotics. He asked Glenn what he had in the glove compartment, and Glenn responded that the compartment held twenty dollars' worth of marijuana. The automobile was towed to the station, where Vaughn was in the process of typing a search warrant for the car. Officer Upchurch, the officer with the dog, told Glenn about the dog indicating that the car contained narcotics and that Vaughn was drafting a search warrant. He asked Glenn if he wanted to give consent to open the glove compartment, read the consent-to-search form to Glenn, and reviewed Glenn's Miranda rights with him. Glenn consented. The consent was very broad and allowed a complete search of the car. The police found two bags of crack cocaine that weighed approximately 36 grams and one baggy of marijuana in the glove compartment. When Officer Upchurch confronted Glenn with the crack cocaine detected by the dog, Glenn said, "You got me, he found it." Buxsel advised Glenn that he was under arrest for felony drug abuse. When Buxsel transported Glenn from the police station to the county jail, Glenn told him that Mattress "had the dope and must have put it in the glove box" when Buxsel removed Glenn from the car. Glenn also said that he and Mattress were on their way to sell the drugs, and that he had been selling crack cocaine for the last year and had been using money from selling drugs to pay child support. Glenn also told Vaughn that he had gotten away with selling drugs a few times. Glenn moved to suppress the evidence gathered from his car and the statements made by him. The trial court granted that part of his motion relating to the marijuana found under the hood of the car, because the evidence demonstrated that it was not part of the inventory procedure to look under the hood of impounded vehicles. The court denied the remainder of Glenn's motion. In his challenge to the trial court's denial of his motion to suppress, Glenn raises three arguments: (1) the state failed to demonstrate that the stop of his vehicle was warranted, and that the trial court placed the burden on him to establish that the stop was proper; (2) the consent to search was not voluntary; and (3) the search was outside the scope of a routine inventory search. Buxsel testified that he stopped Glenn because he did not have a license-plate light in violation of R.C. 4513.05. R.C. 4513.05 requires that a car have a lighting mechanism that can be used to illuminate a license plate. The trial court concluded that the stop was justified because the evidence demonstrated that Glenn had no license-plate light. Glenn argues that the stop was unjustified because he was not required to have the license-plate light illuminated under R.C. 4513.03, because it was not yet one-half hour after sunset when he was stopped. We employ a two-step analysis in reviewing a trial court's ruling on a suppression motion. We first review the trial court's "findings of historical fact only for clear error, giv[ing] due weight to inferences drawn from those facts" by the trial court.2 Second, we independently determine whether the historical facts meet the applicable legal standard. In this case, that standard is whether the facts "viewed from the standpoint of an objectively reasonable police officer" amounted to a reasonable, articulable suspicion that Glenn had violated R.C. 4513.05. At a suppression hearing that does not involve a warrant, the state has the burden of proving the validity of a warrantless search and seizure. An investigative stop requires that the police officer making the stop have a reasonable, articulable suspicion of criminal behavior.3 The observation of a traffic violation provides a reasonable, articulable suspicion for a stop.4 While the trial court did comment on Glenn not fully exploring the issue of whether a license-plate light was required because it was not yet one-half hour after sunset, it did not reach its conclusion that the stop was justified on that issue. Instead, it determined that the evidence demonstrated that Glenn's car lacked any license-plate light, making the time of the stop irrelevant. Thus, the trial court did not shift the burden to Glenn to demonstrate that the stop was justified. Further, based on the record, we conclude that the factual determination that Glenn's vehicle was without a light was not clearly erroneous. As to the voluntariness of Glenn's consent to search the glove compartment, the state had the burden of proving that Glenn's consent to search was voluntary under the totality of the circumstances.5 Glenn claims his consent was not voluntary because it was the result of the threat that the drug canine might damage the vehicle, and that the officers would obtain a search warrant to enter his car. These circumstances did not, on their own, constitute coercion under the facts of this case.6 We conclude that the trial court did not err in finding that Glenn's consent was voluntary under the totality of the circumstances. In Glenn's last argument, he contends that because the Arlington Heights Police Department had no standard form for conducting inventory searches, the search was unconstitutional. He also argues that because Officer Vaughn admitted his search was for contraband, and not an inventory search, the seized evidence should have been excluded. An inventory search "must be conducted in good faith and in accordance with reasonable standardized procedure(s) or established routines."7 The purpose of a standardized policy or practice is to prevent the inventory search from being used as a "ruse for general rummaging to uncover evidence of a crime."8 Buxsel testified that the Arlington Heights Police Department had a policy governing inventory searches, and that the policy required that the search be performed at the scene. At the time of the search of Glenn's vehicle, the department did not have official inventory forms, but such forms existed at the time of the suppression hearing. Vaughn testified that every time a vehicle was towed, the Arlington Heights Police Department inventoried it. According to him, the inventory search included looking through the entire vehicle, including the trunk and the glove compartment, and examining the exterior for damage. During the inventory search, the officer also had to check the gas gauge and the odometer. While conducting his inventory search, Vaughn found several empty plastic bags in the vehicle and seed-like material on the floorboard that he believed might be marijuana seeds. Vaughn also opened the hood. He attempted to open the glove compartment and the trunk, which he could not do. He stated, "My experience is [that a locked glove compartment with no keys is] commonly used in narcotics trafficking." On cross-examination, Vaughn testified that he was originally conducting an inventory search, but that after locating the baggies, he looked under the hood for narcotics, and not for inventory purposes. The trial court suppressed the marijuana found under the hood because the search pursuant to which it was found was not part of the inventory procedure of the Arlington Heights Police Department. Vaughn's search of the glove compartment did not occur during his inventory search because the compartment was locked and no key was available. That area was searched separately with Glenn's consent. Therefore, we conclude that the trial court did not err in denying this aspect of the suppression motion. We overrule Glenn's first assignment. In his second assignment, Glenn challenges the trial court's refusal to grant him a continuance. Glenn sought a continuance based on newly retained counsel. The issue was raised a few days before trial The trial court denied the motion, finding that Glenn was at fault for not making himself available to consult with his initial trial counsel, that the motion was a delay tactic, that newly retained counsel could not proceed to trial until the following month, and that the initial trial counsel could adequately represent Glenn, in spite of the fact that counsel had stated that, while he could represent Glenn, he was "unprepared to go forward in a truly professional manner." The trial court indicated that the full and complete hearing on the suppression motion demonstrated counsel's ability to adequately represent Glenn. Whether to grant a motion for a continuance rests in the trial court's discretion.9 When faced with a request for a continuance, the trial court should consider the following: (1) the length of the delay requested; (2) whether other requests for delays have been sought and granted; (3) the inconvenience to others; (4) whether the delay is for legitimate reasons or whether it is dilatory, purposeful or contrived; (5) whether the defendant has contributed to the circumstances giving rise to the request; and (6) any other relevant factors unique to the case.10 Under the facts of this case, we conclude that the trial court did not abuse its discretion in denying the motion for a continuance. We overrule Glenn's second assignment. In his third assignment, Glenn challenges the sufficiency of the evidence presented by the state. The sufficiency-of-the-evidence challenge in this case requires us to examine the evidence at trial and determine whether that evidence, viewed in a light most favorable to the state, could have convinced any rational trier of fact beyond a reasonable doubt that Glenn was guilty of possession of cocaine.11 Similarly, in the review of the trial court's denial of Glenn's Crim.R. 29 motion, we must determine whether the evidence is "such that reasonable minds [could have] reach[ed] different conclusions" as to whether the state had proved each material R.C. 2925.11(A) states that "[n]o person shall knowingly obtain, possess, or use a controlled substance." In this case, the controlled substance was crack cocaine in an amount that exceeded 25 grams, but was less than 100 grams. Glenn argues that the state never proved that the crack cocaine was his. We hold that the evidence, construed most strongly in favor of the state, was sufficient to demonstrate beyond a reasonable doubt that Glenn knowingly possessed crack cocaine. We overrule Glenn's third assignment. Therefore, we affirm the judgment of the trial court. Sundermann and Shannon, JJ., concur. Raymond E. Shannon, retired, of the First Appellate District, sitting by assignment. 1 Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602. 2 Ornelas v. United States (1996), 517 U.S. 690, 699,116 S. Ct. 1657, 1663. 3 See Terry v. Ohio (1968), 392 U.S. 1, 88 S. Ct. 1868. 4 See State v. Parks (Sept. 18, 1998), Hamilton App. No. C-970814, unreported. 5 See Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-249,93 S. Ct. 2041, 2058-2059. 6 See State v. Clelland (1992), 83 Ohio App. 3d 474, 481,615 N.E.2d 276, 281. 7 See State v. Hathman (1992), 65 Ohio St. 3d 403, 604 N.E.2d 743, paragraph one of the syllabus. 8 See State v. Hathman, supra, at 407, 604 N.E.2d at 746, citingFlorida v. Wells (1990), 495 U.S. 1, 4, 110 S. Ct. 1632, 1635. 9 State v. Unger (1981), 67 Ohio St. 2d 65, 423 N.E.2d 1078. 10 See State v. Unger, supra, at 67-68, 423 N.E.2d at 1080. 11 State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

2016-07-06 06:42:19.953456+00

JOURNAL ENTRY AND OPINION {¶ 1} Appellant, Santonio Ford ("Ford"), appeals the denial of his motion by the trial court to withdraw his guilty pleas in case numbers CR-431136 and CR-431940 and the failure of the trial court to conduct a hearing on Ford's motion. For the reasons outlined below, we affirm the decision of the trial court. {¶ 2} Ford was indicted in case number CR-431136 on a charge of assault with a peace officer specification, a violation of R.C. 2903.13, a felony of the fourth degree. He was also charged in CR-431940 with felonious assault, a violation of R.C. 2903.11, a felony of the second degree; intimidation, a violation of R.C.2921.04, a felony of the third degree; and domestic violence, a violation of R.C. 2919.25, a misdemeanor of the first degree. {¶ 3} Ford entered guilty pleas on January 8, 2003 to assault with a peace officer specification, as charged in CR-431136, and to felonious assault and domestic violence, as charged in CR-431940. The intimidation count was dismissed as a condition of the plea. Ford was sentenced on February 10, 2003 to eighteen months on the assault on a peace officer charge concurrent with a three-year sentence for the felonious assault charge and a concurrent sentence of six months on the domestic violence charge. {¶ 4} In addition, Ford had pending in CR-417267 an allegation that he violated the terms of his community control sanction for the offense of carrying a concealed weapon, a felony of the fourth degree. The court made a finding that Ford violated the terms of the community control sanction, but it did not impose a prison term on Ford for this charge. {¶ 5} At the sentencing hearing, Ford verbally objected to the court's imposition of the three-year term of incarceration on the felonious assault charge in CR-431940, claiming he was promised by counsel prior to the plea that the court would impose a minimum term of two years on that charge. Ford's counsel indicated on the record that he told Ford in the holding cell prior to the plea that the court would give Ford the minimum of two years, but acknowledged the court informed counsel prior to the plea that the court would only consider the minimum term and wanted to review the victim impact statement prior to deciding on giving the minimum term. Counsel indicated that Ford was not informed of this condition prior to the plea. {¶ 6} Ford formally filed his brief on the delayed appeal on April 9, 2004, asserting two assignments of error. Since the assignments of error are interrelated, we will address them together. {¶ 7} Ford's first assignment of error reads as follows: {¶ 8} "The defendant-appellant's right to due process of law under the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution were violated and he did not enter a knowing, intelligent and voluntary plea to a charge of Felonious Assault, Domestic Violence and Assault with a Peace Officer Specification when he is under the impression that he will only be sentenced to two (2) total years of incarceration." {¶ 9} Ford's second assignment of error reads as follows: {¶ 10} "The trial court erred to the prejudice of the defendant-appellant when it failed to properly conduct a hearing upon the defendant-appellant's oral motion to withdraw his plea of guilty." {¶ 11} These assignments of error argue that the trial court violated Ford's constitutional rights by enforcing a plea that Ford claims he did not enter knowingly, intelligently, or voluntarily and then prejudiced him further by refusing to hold a hearing on Ford's oral motion to withdraw the guilty pleas at the conclusion of the sentencing hearing. {¶ 12} As we outlined in State v. Craddock, Cuyahoga App. No. 83870, 2004-Ohio-627, Crim.R. 32.1 governs motions to withdraw guilty pleas. "A motion to withdraw a plea of guilty * * * may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." Crim.R. 32.1. {¶ 13} "It has been expressly recognized by the weight of authority that a defendant seeking to withdraw a plea of guilty after sentence has the burden of establishing the existence of manifest injustice." State v. Smith (1977), 49 Ohio St. 2d 261. A decision on a defendant's motion to withdraw a guilty plea will not be disturbed on appeal absent an abuse of discretion. Statev. Boynton (Aug. 14, 1997), Cuyahoga App. No. 71097. {¶ 14} 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. State v. Clark, 71 Ohio St. 3d 466,1994-Ohio-43. When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe I (1991),57 Ohio St. 3d 135. With this standard in mind, we review the matter before us. {¶ 15} Ford argues that he was promised by his attorney that he would receive a minimum term of two years on the felonious assault charge, concurrent with the other charges pending in CR-431136, CR-431940 and CR-417267. This discussion apparently took place off the record in the holding cell just prior to the plea and was based on discussions that Ford's counsel had with the prosecutor and the trial court, off the record, in chambers prior to the plea hearing. Although Ford points to his verbal objections on the record and the reference by his attorney on the record at the conclusion of the sentencing hearing to the purported plea deal, we decline to find that these factors satisfy Ford's claim entitling him to withdraw his pleas or to have a hearing on his motion to withdraw guilty pleas after sentencing. The record reflects the court advised Ford of the changed conditions on the record prior to the plea. {¶ 16} While we are cognizant of expectations that can and are created during plea discussions, it is the dialogue on the record in open court that is controlling. {¶ 17} In the instant case, there is no dispute that the trial court properly outlined the potential maximum penalties and thoroughly conducted the proper Rule 11 colloquy with Ford. The trial court and the parties initially addressed the issue of the sentence as follows: {¶ 18} "THE COURT: Mr. Spellacy, I know you've been throughthis extensively with your client. But it's the court'sunderstanding — is he aware of the offer that's been made tohim? {¶ 19} "MR. SPELLACY: Yes, your Honor. I have discussed theoffer in this case as well as our discussions with the prosecutorin chambers with regards to the potential sentence that thiscourt would consider." {¶ 20} (Emphasis added.) {¶ 21} Later, after a brief sidebar and prior to the plea, the court clarified its position on sentencing: {¶ 22} "THE COURT: The record will additionally reflect therehave been discussions among counsel with regard to sentencing inthe event Mr. Ford's plea were to be forthcoming, thosediscussions have been inconclusive other than that the court hasindicated that it would consider, if sufficient mitigation wereproduced, minimum term in the criminal docket No. 431490, andthat it would, the court would consider on the motion thepossibility of terminating community controlled sanctions in theother matter." {¶ 23} (Emphasis added.) {¶ 24} The court then went on to state: {¶ 25} "THE COURT: However, the court would want theopportunity to hear from the victim, Miss Ford, prior to makingany sentencing decision. So the court will confirm for therecord those discussions have taken place." {¶ 26} (Emphasis added.) {¶ 27} The court then, in an effort to insure clarity, directly addressed Ford on the sentencing issue: {¶ 28} "THE COURT: I want to be sure that you understand whatis taking place here and what is being put on the table. {¶ 29} "THE DEFENDANT: Right. {¶ 30} "THE COURT: Do you understand that? {¶ 31} "THE DEFENDANT: Yes." {¶ 32} Ford then indicated he would "go with the deal." It is clear that, at this point, whatever representations were made to Ford by counsel off the record prior to the plea hearing had been altered or clarified by the trial court on the record. Ford at this point could have declined the offer and proceeded to trial, but he did not do so. While Ford apparently clung to the mistaken belief that he would be guaranteed the minimum sentence by entering a plea, this belief is not supported by the dialogue on the record. {¶ 33} Further, after outlining the plea deal, the prosecutor indicated the following: {¶ 34} "THE PROSECUTOR: There have been no threats orpromises made to secure this plea, your Honor, in either ofthese cases other than what has been put on the record beforeyou." {¶ 35} (Emphasis added.) {¶ 36} Defense counsel acknowledged the terms stating: {¶ 37} "MR. SPELLACY: That's my understanding your Honor. Mr.Ford has indicated to the court anyways that he would like toaccept the proposed deal as he put it." {¶ 38} After the court explained in detail the elements of the offenses and the potential penalties, the court and Ford had the following dialogue that Ford asserts is the basis of the purported sentence. {¶ 39} "THE COURT: Okay? Other than the things we discussedhere in open court now and on the record, anybody including yourlawyer or the prosecutor's office or this court specificallypromised you anything or threatened you to plead guilty? {¶ 40} "THE DEFENDANT: There was an agreement reached as tothe two years. {¶ 41} "THE COURT: Other than what we talked about heretoday? {¶ 42} "THE DEFENDANT: That was it." {¶ 43} The off-the-record promise of defense counsel, the prosecutor, and the trial court was clarified by the trial court and acknowledged by Ford on the record in open court. Any subsequent reliance on the belief of an agreed sentence by Ford was misplaced and is not supported by the record. This court recognizes that Ford's counsel has the highest degree of integrity and no doubt accurately communicated to Ford what was initially discussed in chambers. Nevertheless, for reasons outlined on the record, the trial court clarified or altered its position with respect to the minimum sentence prior to the plea. Since this was done on the record, and Ford formally acknowledged the court's position, the claim of error is misplaced. Suggesting that a court could never clarify a position or change a stated position on a plea arrangement is not valid. Here, the court outlined its position and communicated it formally prior to the plea. {¶ 44} In his second assignment of error, Ford alleges prejudice on the basis that the trial court refused to grant him a formal hearing on his oral motion to withdraw his plea. We note that Ford never filed a formal motion to withdraw his plea, as suggested by the trial court, when Ford initially complained orally of the sentence on February 10, 2003. Nevertheless, even Ford's oral claim does not present evidence of a manifest injustice. {¶ 45} As we outlined above, after sentence has been imposed, a trial court may permit a defendant to withdraw a guilty plea only to correct a manifest injustice. The burden of establishing the existence of such injustice is upon the defendant. Smith,49 Ohio St. 2d 261. The logic behind this precept is to discourage a defendant from pleading guilty to test the weight of potential reprisal and later withdrawing the plea if the sentence is unexpectedly severe. State v. Caraballo (1985),17 Ohio St. 3d 66, citing State v. Peterseim (1980), 68 Ohio App. 2d 211. {¶ 46} In State v. Sneed, Cuyahoga App. No. 80902, 2002-Ohio-6502, this court stated that "A manifest injustice is defined as a `clear or openly unjust act.' Another court has referred to it as `an extraordinary and fundamental flaw in the plea proceeding.' Again, `manifest injustice' comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her." (Internal citations omitted.) {¶ 47} An individual who enters a plea of guilty has no right to withdraw it. Peterseim, 68 Ohio App.2d at 213. It is within the sound discretion of the trial court to determine what circumstances justify the granting of a motion to withdraw and will not be overturned on appeal absent an abuse of discretion.Smith, 49 Ohio St. 2d 261, paragraph two of the syllabus; Statev. Stumpf (1987), 32 Ohio St. 3d 95. {¶ 48} Although at some point there was likely an understanding in place that Ford would receive the minimum sentence in exchange for his plea, that condition was changed by the trial court on the record, in open court, prior to the plea. The fact that Ford apparently chose not to listen to the trial court's clarification of the plea terms does not render the plea invalid. Ford verbally stated that he understood the court's position and openly agreed to the plea. When a representation is made that someone understands the terms of a plea, deviating from what is plainly said or inferring a different meaning or understanding from the dialogue does not serve the interests of justice. Such an approach only invites "claimed" errors. {¶ 49} In light of these facts, we cannot say the trial court abused its discretion in determining that no injustice had occurred, in refusing to grant Ford's request to withdraw his plea, or in refusing to hold a hearing on the oral motion to withdraw the guilty plea. We, therefore, affirm the decision of the trial court as to assignments of error one and two. Judgment affirmed. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Dyke, P.J., concurs. Karpinski, J., dissents with separate dissenting opinion. DISSENTING OPINION

2016-07-06 06:42:20.004733+00

OPINION {¶ 1} Defendant-appellant, Tim Townsend (hereinafter "Townsend"), appeals the judgment of the Celina Municipal Court which awards plaintiffs-appellees, Elizabeth Snider (hereinafter "Snider") and Motorists Mutual Insurance Company (hereinafter "Motorists"), the sums of $250.00 and $662.66, respectively, and further orders Townsend to pay $221.32 in court costs. {¶ 2} On March 24, 2002, Snider drove her automobile on Rice Road in rural Mercer County, Ohio. Snider proceeded at a speed of approximately 55 miles per hour when she saw two colored chickens along the right-hand side of the road but off the traveled roadway. Townsend owned the two chickens, and he had allowed them to roam free on his nearby property. {¶ 3} Upon spotting the chickens, Snider testified she disengaged her cruise control, slowed her vehicle, honked her horn, and moved her automobile so that it more or less straddled the center line. Nevertheless, one of the chickens struck Snider's automobile and caused damage to the front-right headlight and fender. {¶ 4} The damage to Snider's automobile totaled $912.66. Motorists insured Snider. Under the terms of her policy, Snider paid a $250.00 deductible toward the damage. Motorists paid an additional $662.66 to cover the balance. {¶ 5} On February 26, 2004, Snider and Motorists brought suit to recoup the amounts paid. The complaint alleged Townsend was negligent in allowing his chickens to roam free near the road. Townsend defended on the grounds that Snider was contributorily negligent, had failed to keep an assured clear distance, and had failed to exercise reasonable control. Townsend filed a counterclaim alleging Snider was negligent in operating her automobile and sought to recover the value of the chicken. {¶ 6} The trial court concluded Townsend was negligent and ruled in favor of Snider and Motorists. The trial court determined Snider was not contributorily negligent in her driving, speed, or actions. Consequently, the trial court also ruled in favor of Snider on Townsend's counterclaim. The trial court then ordered Townsend to pay $250.00 to Snider, $662.66 to Motorists, and $221.32 in court costs. {¶ 7} It is from this decision that Townsend appeals, setting forth one assignment of error for our review. ASSIGNMENT OF ERROR NO. 1 The Trial Court erred rendering a decision in favor ofPlaintiff-Appellee by not finding the Plaintiff-Appellee contributorilynegligent, failing to keep assured clear distance and failure to keepreasonable control of her motor vehicle. {¶ 8} In his sole assignment of error, Townsend contends that Snider violated the "assured clear distance ahead" rule set forth in R.C.4511.21(A). From this premise, Townsend also argues Snider failed to exercise reasonable care and was negligent. For the reasons that follow, we find that Townsend's assignment of error is without merit. {¶ 9} R.C. 4511.21(A) provides, in part, as follows: No person shall operate a motor vehicle * * * at a speed greater orless than is reasonable or proper, having due regard to the traffic,surface, and width of the street or highway and any other conditions, andno person shall drive any motor vehicle * * * in and upon any street orhighway at a greater speed than will permit the person to bring it to astop within the assured clear distance ahead. A person violates the statute only if "there is evidence that the driver collided with an object which (1) was ahead of him in his path of travel, (2) was stationary or moving in the same direction as the driver, (3) did not suddenly appear in the driver's path, and (4) was reasonably discernible." Pond v. Leslein (1995), 72 Ohio St. 3d 50, 52,647 N.E.2d 477, quoting Blair v. Goff-Kirby Co. (1976), 49 Ohio St. 2d 5,7, 358 N.E.2d 634 (citing McFadden v. Elmer C. Breuer Transp. Co. (1952), 156 Ohio St. 430, 103 N.E.2d 385). {¶ 10} Ordinarily, satisfaction of the four elements is a question of fact. Pond, 72 Ohio St.3d at 52. In determining whether a judgment is against the manifest weight of the evidence, a reviewing court will not reverse the trial court on a question of fact if the record contains competent, credible evidence going to all the essential elements of the case. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279,376 N.E.2d 578, syllabus. {¶ 11} Snider was the sole witness to the featherly collision. Snider's testimony establishes that she saw two colored chickens along the right-hand side of the road. Neither chicken, however, was on the traveled roadway. Thereafter, Snider moved her automobile so that it straddled the center line and created a wide berth as she passed the chickens. She subsequently heard something impact her automobile. Snider's testimony, in essence, establishes that the smash up was a fowl suicide. {¶ 12} Although one chicken was in the traveled part of the roadway when contact was made, we cannot conclude from the evidence available to the trial court that the chicken was in Snider's "path of travel" at anytime except perhaps suddenly prior to its demise. {¶ 13} Even if we assume, arguendo, that the first element of thePond standard is established, there is still insufficient evidence to establish either the second or third elements. While Snider testified that one chicken was "sitting" off of the traveled roadway, she believed that same chicken flew sideways into the front-right side of her automobile. Aside from Snider's testimony, there is no indication, either in the transcript of the final hearing or the record as a whole, as to whether the deceased chicken was "stationary or moving in the same direction as the driver" immediately prior to, or at the point of, impact. Furthermore, there is no other testimony or evidence indicating the chicken "did not suddenly appear in the driver's path." Thus, we cannot agree with Townsend that he has met his burden of proving a violation of R.C. 4511.21(A). {¶ 14} Townsend cites Bolton v. Barkhurst (1973), 40 Ohio App. 2d 353,319 N.E.2d 376, and Grout v. Joseph (Oct. 13, 2000), 2nd Dist. No. 2000 CA 20, for the proposition that "[t]he driver of an automobile is required to exercise reasonable care to avoid injuring or killing livestock on the highway." Bolton, 40 Ohio App.2d at 358 (citations omitted). Unlike the instant matter, however, the drivers in Bolton andGrout struck animals that were on the traveled part of the roadway well before impact. Therefore, we find Bolton and Grout to be factually distinguishable and unpersuasive. {¶ 15} In summary, there is substantial, credible evidence in the record going to each element of the plaintiffs' claims. Because there is insufficient evidence to find a violation of R.C. 4511.21(A), Townsend has not established his defense of contributory negligence or his counterclaim for the value of the chicken. Therefore, we conclude that the trial court did not err in rendering its judgment for the plaintiffs. {¶ 16} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court. Judgment affirmed. Bryant and Rogers, JJ., concur.

2016-07-06 06:42:20.089052+00

OPINION *Page 2 {¶ 1} Defendant-Appellant, Scott W. appeals the April 16, 2008, Judgment Entry adjudicating him to be a juvenile delinquent on one count of illegal conveyance or possession of a deadly weapon or dangerous ordnance in a school safety zone, in violation of R.C. 2923.122, and one count of aggravated menacing, in violation of R.C. 2903.21 The State of Ohio is plaintiff-appellee. STATEMENT OF THE CASE AND FACTS {¶ 2} On January 14, 2008, Appellant, a juvenile, was charged with one count of felonious assault, in violation of R.C. 2903.11, a felony of the second degree if committed by an adult. He was also charged with one count of illegal conveyance or possession of a deadly weapon or dangerous ordnance in a school safety zone, a felony of the fifth degree if committed by and adult, and one count of aggravated menacing, in violation of R.C. 2903.21, a misdemeanor of the first degree if committed by an adult. {¶ 3} Appellant, who was represented by counsel at all stages of the proceedings, appeared before the juvenile court on January 14, 2008, for a preliminary hearing and entered a denial to all charges. At that time, the trial court advised Appellant that an attorney could be appointed to represent him if his parents could not afford legal representation. The court additionally advised Appellant at his preliminary hearing that due to the nature of the charges against him, he could potentially be committed to the custody of the Department of Youth Services for an indefinite period of time of not less than one year to a maximum period of time not to exceed Appellant's twenty-first birthday. *Page 3 {¶ 4} On March 14, 2008, Appellant admitted to the charges of aggravated menacing and illegal conveyance of a deadly weapon in a school safety zone and exercised his right to trial on the charge of felonious assault. After trial, the court found Appellant to be a delinquent minor on all three counts and proceeded to disposition, wherein the court committed Appellant to the custody of the Department of Youth Services (DYS) on the felonious assault for a minimum term of one year and a maximum term not to exceed Appellant's twenty-first birthday. On the charge of illegal conveyance of a deadly weapon in a school safety zone, the court committed Appellant to the custody of DYS for a minimum of six months and maximum term not to exceed Appellant's twenty-first birthday. The court ran the terms consecutively. On the charge of aggravated menacing, the court fined Appellant $250 and suspended his right to obtain a driver's license until his twenty-first birthday. No objections were made to this disposition. {¶ 5} Appellant raises four assignments of error: {¶ 6} "I. SCOTT W.'S ADMISSIONS WERE NOT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY MADE, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, SECTIONS 10 AND 16, ARTICLE 1 OF THE OHIO CONSTITUTION AND JUVENILE RULE 29." {¶ 7} "II. THE TRIAL COURT ERRED IN DEPRIVING SCOTT W. OF HIS ABILITY TO APPLY FOR DRIVING PRIVILEGES BECAUSE HE WAS NOT PLACED ON COMMUNITY CONTROL AND THERE IS NO STATUTORY AUTHORITY TO *Page 4 IMPOSE THAT SANCTION UPON A CHILD WHO HAS COMMITTED AGGRAVATED MENACING, IN VIOLATION OF R.C. 2903.21(A)." {¶ 8} "III. THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER COMMUNITY SERVICE IN LIEU OF THE FINANCIAL SANCTIONS IN VIOLATION OF R.C. 2152.20(D)." {¶ 9} "IV. SCOTT W. WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WHEN HIS ATTORNEY FAILED TO OBJECT TO AN UNCONSTITUTIONAL PLEA AND AN UNLAWFUL DISPOSITION?" [SIC]. I. {¶ 10} In his first assignment of error, Appellant argues that his admissions to the charges of illegal conveyance of a deadly weapon in a school safety zone and aggravated menacing were not knowingly, voluntarily and intelligently entered pursuant to Ohio Juv. R. 29. Specifically, Appellant argues that the juvenile court failed to explain any of the penalties or consequences of Appellant's admissions to a felony or misdemeanor charge. {¶ 11} Juvenile proceedings must comport with due process requirements. In re Gault (1967), 387 U.S. 1, 87 S. Ct. 1428,18 L. Ed. 2d 527. Ohio Juvenile Rule 29(D), which is analogous to Ohio Crim. R. 11, and which codifies the due process requirement in Gault, provides, in pertinent part: *Page 5 {¶ 12} "The court may refuse to accept an admission and shall not accept an admission without addressing the party personally and determining both of the following: {¶ 13} "(1) The party is making the admission voluntarily with the understanding of the nature of the allegations and the consequences of the admission; and {¶ 14} "(2) The party understands that by entering an admission the party is waiving the right to challenge the witnesses and evidence against the party, to remain silent, and to introduce evidence at the adjudicatory hearing." {¶ 15} Juvenile Rule 29 and Criminal Rule 11 both require the respective courts to make careful inquiries in order to ensure that the admission or guilty plea is entered voluntarily, intelligently and knowingly. In re Flynn (1995), 101 Ohio App. 3d 778, 781, 656 N.E.2d 737;In re McKenzie (1995), 102 Ohio App. 3d 275, 277, 656 N.E.2d 1377. In order to satisfy the requirements of Juv. R. 29(D), "the court must address the youth personally and conduct an on-the-record discussion to determine whether the admission is being entered knowingly and voluntarily." In re West (1998), 128 Ohio App. 3d 356, 359,714 N.E.2d 988, citing In re McKenzie, supra, at 277, 656 N.E.2d 1377. Juvenile Rule 29(D) also places an affirmative duty upon the juvenile court to personally address the juvenile before the court and determine that the juvenile understands the nature of the allegations and the consequences of entering the admission. In re Beechler (1996), 115 Ohio App. 3d 567,571, 685 N.E.2d 1257. The test for the juvenile's understanding of the charges is subjective, rather than objective. Id. {¶ 16} We have previously held that strict compliance with these rules is not constitutionally mandated. In re Pritchard, 5th Dist. No. 2001 AP 080078, 2002-Ohio-1664. *Page 6 Several other appellate courts have also interpreted these rules as requiring substantial compliance with their provisions. Id. citingIn re Royal (1999), 132 Ohio App. 3d 496, 504, 725 N.E.2d 685; In reBrooks (1996), 112 Ohio App. 3d 54, 57, 677 N.E.2d 1229. {¶ 17} As we stated in Pritchard, the "failure of the juvenile court to substantially comply with Juv. R. 29(D) has [a] * * * prejudicial effect * * * necessitating a reversal of the adjudication so that the juvenile may plead anew." Id. quoting In re Doyle (1997),122 Ohio App. 3d 767, 772, 702 N.E.2d 970 (internal citations omitted). However, the preferred method for assuring compliance with Juv. R. 29(D) is for each court to use the language of the rule, "carefully tailored to the child's level of understanding, stopping after each right and asking whether the child understands the right and knows he is waiving it by entering an admission." In re Messmer, 3rd Dist. No. 16-08-03, 2008-Ohio-4955 at ¶ 10. quoting In re Miller (1997),119 Ohio App. 3d 52, 58, 694 N.E.2d 500, 504. {¶ 18} In discussing the timing of when a court should advise a juvenile of his rights, we find the Third District's decision inMessmer to be instructive. In Messmer, the Third District found that Juv. R. 29(D)(2), concerning rights waived by admission, require a juvenile court to insure a juvenile's understanding at the time he enters his admission. Specifically, where forty-eight days passed between Messmer's arraignment hearing and his adjudication hearing, the court found it inappropriate to consider the arraignment hearing in determining whether the juvenile court substantially complied with Juv. R. 29(D). Messmer, supra, at ¶ 14. {¶ 19} The Messmer court references In re Jones (April 13, 2000), 4th Dist. No. 99-CA-4 as additional authority supporting the requirement that juvenile rights must be *Page 7 articulated at the adjudicatory hearing in order to comply with Juv. R. 29. In Jones, a juvenile entered an admission at a hearing without being informed of the nature of the allegations. The State claimed the juvenile was adequately notified of the nature of the allegations due to a bindover hearing that occurred several weeks earlier. The Fourth District, in rejecting the state's argument, stated that "[t]he obvious intent of Juv. R. 29(D)(1) is that the juvenile understands the charge at the time he enters his admission of guilt, not several weeks earlier at a bindover hearing." Id. {¶ 20} The Second District has recently come to a similar conclusion, holding that a trial court fails to substantially comply with Juv. R. 29(D) where it did not discuss the potential consequences of a juvenile's admission at an adjudicatory hearing. See In re J.F., 2nd Dist. Nos. 22181, 22441, 2008-Ohio-4325. {¶ 21} In the present case, the trial court read each charge in the complaint and advised Appellant, at his preliminary hearing, as follows: {¶ 22} "The above behavior is in violation of Section 2903.11(A)(2) of the Ohio Revised Code as applied to adults; and in violation of Section 2152.02(F) of the Ohio Revised Code as made applicable to juveniles. Again, this offense is commonly referred to as felonious assault. {¶ 23} "As I indicated moments ago, it is classified as a felony of the second degree. That means, Scott, that if you're found to be a delinquent minor for having committed this offense, the Court, among many different choices, could commit you to the Ohio Department of Youth Services — which in our state is our youth authority — for an indefinite period of time of not less than one year to a maximum period of time not to exceed age 21. The thing that I really truly wish to impress upon you, is that this is a *Page 8 very serious offense, which can result in you being — losing your freedom and being detained in a secured facility for a number of years. {¶ 24} "Count 2 of the complaint alleges the offense of illegal conveyance or possession of a deadly weapon or dangerous ordinance in a school safety zone. {¶ 25} "If you are adjudged to be a delinquent minor for having committed this offense, the Court can commit you to the Ohio Department of Youth Services for an indefinite or indeterminate period of time to a secured facility, operated by the State, for a period of not less than six months, to a maximum period of time not to exceed your 21st birthday." {¶ 26} Further, the Court stated "Count 3 of the complaint, aggravated menacing, is classified as a misdemeanor of the first degree. The Court cannot commit you to a State institution. But the Court could commit you to a juvenile detention facility for a period of not more than 90 days for having committed this offense. Again, that's contingent upon you being adjudicated a delinquent." {¶ 27} At his plea hearing, Appellant admitted to the charges of illegal conveyance and aggravated menacing. At that hearing, the court advised Appellant as follows: {¶ 28} "THE COURT: [D]o you understand what the word "admit" means? {¶ 29} A: Yes, sir. It means I'm admitting that I did say and do them things and have them. {¶ 30} Q: Is anyone forcing you to enter these pleas of admit to Counts 2 — {¶ 31} A: Huh-uh. {¶ 32} Q: — Count 3 against your will? *Page 9 {¶ 33} A: No, sir, they're not. {¶ 34} Q: Are you doing so voluntarily? {¶ 35} A: Yes, sir, I am. {¶ 36} Q: Do you understand that you're giving up your right to challenge the evidence against you? {¶ 37} A: Yes, sir, I am. {¶ 38} Q: You're giving up your right to remain silent? {¶ 39} A: Yes sir, I do. {¶ 40} Q: You're also giving up your right to cross examine your accusers? {¶ 41} A: Yes, sir. {¶ 42} "THE COURT: The Court will accept the pleas of admit to Count 2 and Count 3. And to a certain degree this is only an academic exercise, because frankly the Court has already heard the evidence in the case. It is not necessary to make reference to any police reports that have been filed in this case because, again, the witnesses who were called and the exhibits which have been admitted really address the issues of — that are set forth in Count 2 and 3." {¶ 43} The court additionally stated: {¶ 44} "THE COURT: Now, listen to me very carefully. Well, first of all, I've got the legal responsibility to explain to you that you do have the right to appeal the Court's orders which it is making today, with regard to the adjudication of delinquency on Count 1, and also with regard to disposition. {¶ 45} "You do have the right to file an appeal with the Licking County Court of Appeals for the 5th Appellate District. I'm required to explain to you by law, that if you *Page 10 wish to appeal and cannot afford an attorney, the Court will appoint an attorney to represent you at no expense. Do you understand your right to appeal? {¶ 46} "A: Yes, sir, I do." {¶ 47} The State urges this Court to examine the preliminary hearing and the adjudicatory hearing together and determine that the juvenile court complied with Juv. R. 29. Specifically, the State cites to two cases, State v. Skropits (Feb. 8, 1993), 5th Dist. No. CA-9077, and In re Pyles, 2nd Dist. No. 19354, 2002-Ohio-5539 in support of its argument. We find bothSkropits and Pyles to be distinguishable. {¶ 48} In Skropits, the court was faced with a situation where an adult defendant challenged his misdemeanor no contest plea under Crim. R. 11(E), claiming that the court did not inform him of the effect of his plea. The defendant was advised of the effect of his plea at an arraignment hearing and the court advised him of all rights required under Crim. R. 11 at his arraignment. This court found substantial compliance with Crim. R. 11, stating that the rule merely requires the court to first inform a defendant of the effect of his plea "at some point" prior to accepting the plea. In the present case, because we are confronted with a juvenile case where our determination is focused on whether or not the juvenile court complied with specific mandates in Juv. R. 29(D), i.e., whether the court complied with advising Appellant of the consequences of his admission, including the range of penalties he would face, we do not find Skropits to be dispositive on the issue before this court. {¶ 49} Moreover, the Pyles decision involved an adjudication after a trial on two charges of rape. Because Pyles does not focus on the procedure to be used following an admission by a juvenile to a felony and a misdemeanor, we find it to be inapplicable *Page 11 to the facts at bar. Additionally, in Pyles, the defendant admitted in his reply brief that he "may have received an adequate explanation at the initial hearing" of his rights. See Pyles, supra, at ¶ 11.1 {¶ 50} The record in the present case shows that the judge failed to discuss the potential consequences of Appellant's admissions at the adjudicatory hearing. While the judge did discuss some of the potential consequences at Appellant's preliminary hearing, we find that discussion to be inadequate and find that it does not comply with the mandates of Juv. R. 29. Appellant should have been advised of the consequences of his admissions at his adjudicatory hearing. {¶ 51} Appellant's first assignment of error is sustained. II, III, IV {¶ 52} In his second, third, and fourth assignments of error, Appellant argues, respectively, that the trial court erred in suspending his right to apply for driving privileges; that the trial court erred by not considering imposing community service in lieu of a fine; and that trial counsel was ineffective for failing to object when the court did not inform Appellant of the consequences of his admissions and for failing to object when the court imposed an incorrect disposition. Due to our disposition Appellant's first assignment of error, we find the second, third, an fourth assignments of error to be moot and decline to address them. App. R. 12(A)(1)(c). *Page 12 {¶ 53} For the foregoing reasons, we find Appellant's first assignment of error to be well taken and reverse the judgment of the juvenile court and remand for further proceedings consistent with this opinion. Delaney, J., and Hoffman, P.J., concur. Farmer, J. dissents. *Page 14 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Licking County Court of Common Pleas is reversed and remanded. Costs assessed to Appellee. 1 The Second District has distinguished Pyles from other Juv. R. 29(D) compliance cases on this basis. See In re J.F., 2nd Dist. Nos. 22181, 22441, 2008-Ohio-4325, ¶ 75. *Page 13

2016-07-06 06:42:20.293618+00

JOURNAL ENTRY AND OPINION {¶ 1} Plaintiff Louise Williams appeals from the order of the trial court that granted summary judgment to defendant Greater Cleveland Regional Transit Authority ("GCRTA") in Williams's negligence action. For the reasons set forth below, we affirm. {¶ 2} Plaintiff filed this action against GCRTA alleging that on December 4, 2002, she fell on snow and ice on the stairs of the No. 10 bus. {¶ 3} GCRTA moved for summary judgment and presented evidence that Williams observed snow and ice on the steps prior to exiting, that the driver told Williams to be careful on the stairs, and that she acknowledged that she was stepping carefully because she had observed the snow and ice on the steps. GCRTA further asserted that the driver had cleared the steps at some point that day and breached no duty in failing to keep the stairs free of snow and ice.1 In opposition, plaintiff asserted that as a common carrier, GCRTA has a heightened duty of care for the safety of its passengers. She also presented evidence that she had a bag of groceries, and was seated in the section designated "handicapped." In addition, plaintiff noted that bus company regulations provide: {¶ 4} "It is the operator's responsibility to carry and use the ice scraper that was issued. Its purpose is to clear the step area and windshield of accumulated snow and ice. Layovers are the most appropriate time to do this." {¶ 5} The trial court granted GCRTA's first motion for summary judgment. Plaintiff now appeals and assigns four errors for our review. {¶ 6} Plaintiff's first, second and fourth assignments of error are interrelated and state: {¶ 7} "The facts demonstrate that genuine issues remain as to whether RTA failed to exercise the degree of care required of common carriers." {¶ 8} "RTA failed to maintain a safe egress for passengers." {¶ 9} "RTA has a legal duty to warn its passengers of unsafe conditions presented on the bus when the operator has knowledge of such dangers." {¶ 10} We review the grant of summary judgment de novo using the same standards as the trial court. Nationwide Mut. Fire Ins.Co. v. Guman Bros. Farm (1995), 73 Ohio St. 3d 107, 108,652 N.E.2d 684. {¶ 11} A trial court may not grant a motion for summary judgment unless the evidence before the court 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 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. See, e.g., Vahila v. Hall (1997),77 Ohio St. 3d 421, 429-30, 674 N.E.2d 1164, 1171. {¶ 12} The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting a summary judgment. Id., citing Harless v. Willis Day WarehousingCo. (1978), 54 Ohio St. 2d 64, 66, 375 N.E.2d 46, 47. 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. Vahila v. Hall, supra. {¶ 13} In responding to a motion for summary judgment, the nonmoving party may not rest on "unsupported allegations in the pleadings." Civ.R. 56(E); Harless v. Willis Day WarehousingCo., supra. Rather, Civ.R. 56 requires the nonmoving party to respond with competent evidence that demonstrates the existence of a genuine issue of material fact for trial. Vahila v. Hall, supra. {¶ 14} If the party does not so respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that there is a genuine issue for trial, summary judgment, if appropriate, shall be entered against the non-moving party.Jackson v. Alert Fire Safety Equip., Inc. (1991),58 Ohio St. 3d 48, 52, 567 N.E.2d 1027, 1031. {¶ 15} With regard to the substantive law, we note that a claim of negligence must prove the following: (1) that the defendant owed the plaintiff a duty; (2) that the defendant breached that duty; and (3) that said breach proximately caused the plaintiff's injury. See, e.g., Hensley v. Toledo AreaRegional Transit Auth. (1997), 121 Ohio App. 3d 603, 615,700 N.E.2d 641. {¶ 16} In Cotrill v. Laketran (Nov. 19, 1999), Lake App. No. 98-L-169, the court outlined a common carrier's duty of care as follows: {¶ 17} "It is well established that a common carrier has a duty to exercise the highest degree of care to its passengers consistent with the practical operation of the system. Dietrichv. Community Traction Co. (1964), 1 Ohio St. 2d 38, 41,203 N.E.2d 344. These duties include warning passengers of dangerous conditions known to or reasonably ascertainable by the carrier as well as affording passengers the opportunity to alight in a reasonably safe place. Id. at paragraph one of the syllabus;James v. Wright (1991), 76 Ohio App. 3d 493, 495,602 N.E.2d 392. However, the above duties only apply to perils that a passenger should not be expected to discover or protect him or herself against. Dietrich, 1 Ohio St.2d at 43; James [v.Wright (1991),] 76 Ohio App.3d at 495." {¶ 18} Moreover, although a railway company owes a duty of the highest degree of care to its passengers, it cannot be regarded as an insurer of the safety of passengers. Rahman v.Greater Regional Transit Authority (June 2, 1994), Cuyahoga App. No. 66166. In judging whether or not the railway company exercised the highest degree of care toward this plaintiff, reference must be had to the surrounding circumstances. Id. {¶ 19} In Rahman this court affirmed summary judgment for the plaintiff and stated: {¶ 20} "Appellee met its duty of care by providing its drivers with ice scrapers and rock salt to keep the steps clear of slush. As appellant admits, the driver of this bus did undertake to keep the steps clear. The high degree of care required of common carriers is qualified by the phrase, `consistent with the practical operation of the system.'Dietrich, at 41. As those who are familiar with life in Cleveland during the winter months, it would be an impossible task to keep the steps completely free of slush and remain responsible for driving the bus route." {¶ 21} Similarly, in Fixel v. Greater Cleveland RegionalTransit Auth. (January 12, 1995), Cuyahoga App. No. 67298, this court affirmed summary judgment for GCRTA on the passenger's action for slip and fall on snow and ice in a bus. This court stated: {¶ 22} "It cannot be inferred from appellant's statement that she slipped on dirty, crusted snow, that appellee failed to remove snow from the bus in a manner consistent with the practical operation of the system. * * * {¶ 23} "Additionally, it is questionable whether appellee had a duty, because a common carrier has no duty to warn against perils a passenger should reasonably be expected to discover or protect himself against." {¶ 24} In Bell v. Greater Cleveland Regional TransitAuth. (April 6, 1995), Cuyahoga App. No. 67906, the plaintiff filed suit after she slipped on an accumulation of snow and slush and fell while disembarking the bus. The trial court entered summary judgment for GCRTA and this court affirmed, applyingRahman, supra. {¶ 25} Conversely, however, in Banks v. Greater ClevelandReg'l Transit Auth. (November 6, 1997), Cuyahoga App. No. 72468, this court determined that summary judgment was erroneously granted in favor of GCRTA where: {¶ 26} "1) It was an extremely snowy day; 2) driving conditions were `terrible;' 3) it was RTA's policy to issue ice scrapers to its drivers to keep the steps free from ice; 4) Baker cleaned the front bus steps with her ice scraper at the stop just prior to the one at which appellant boarded the bus; 5) appellant boarded at the front steps and "stomped her feet" to free them from snow; 6) Baker then made four to five other stops at which passengers boarded and disembarked through the front door; 7) all the passengers "stomped" the snow off as they boarded; 8) appellant was on the bus for approximately ten minutes; 9)appellant did not observe the floor during the time she was onthe bus but Baker did; 10) Baker warned appellant to be careful as she disembarked; however, 11) appellant slipped on one of the steps as she exited the front door of the bus." (Emphasis added.) {¶ 27} Applying all of the foregoing, we conclude that there are no genuine issues of material fact and that GCRTA was properly awarded judgment as a matter of law. Plaintiff did not notice if there was snow and ice on the steps as she boarded the bus, but it was an extremely snowy day and other passengers tracked in snow as they boarded. Plaintiff saw the snow and ice as she alighted the bus, walked carefully, the driver cleared the steps earlier and the driver warned plaintiff to be careful. GCRTA acted consistent with the practical operation of the system. {¶ 28} In accordance with the foregoing, the first, second and fourth assignments of error are without merit. {¶ 29} Plaintiff's third assignment of error states: {¶ 30} "RTA owes a greater degree of care to passengers with physical handicaps as compared to those passengers in good health." {¶ 31} We note that there are many laws which regulate accommodations for the disabled and which regulate public transportation. See, e.g., Spector v. Norwegian Cruise LineLtd. (2005), 545 U.S. 119, 125 S. Ct. 2169, 162 L. Ed. 2d 97. The instant matter, however, was pled as an ordinary negligence action and was not pled with regard to an alleged physical handicap, and was not pled with regard to any such regulations or any alleged breach thereof. Likewise, discovery was not undertaken as to any of these issues. Accordingly, we conclude that these issues are not properly before us and we will not address them herein. {¶ 32} This assignment of error is without merit. Affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Sweeney, J., and Calabrese, Jr., J., concur. 1 In a supplemental motion for summary judgment GCRTA asserted that it was entitled to judgment as a matter of law because plaintiff claimed that she suffered permanent injuries but she failed to submit expert evidence in support of this claim.

2016-07-06 06:42:20.481065+00

JOURNAL ENTRY and OPINION Appellant herein, Marshae King, appeals from the order of the Cuyahoga County Court of Common Pleas-Domestic Relations Division denying her motion for additional spousal support in the form of attorney fees subsequent to an evidentiary hearing. Because we find that the trial court's order did not constitute an abuse of discretion, we affirm the ruling of the trial court. Appellant filed the within action for divorce on April 16, 1999. The appellant initially retained attorney Judith Hunt to represent her interests in the proceedings. Attorney Hunt served as appellant's counsel from April 1999 to August 1999, when the appellant expressed some anxiety over the manner in which her case was being handled. In August of 1999, attorney Hunt, with the permission of the appellant, caused attorney Joyce Barrett to be retained as appellant's co-counsel. At some point well into the proceedings, the appellant discharged both Hunt and Barrett and retained new counsel. On January 12, 2001, a settlement agreement reached by the parties was journalized. This agreement resolved all outstanding issues other than the allocation of responsibility for attorney fees incurred by the appellant during the time in which she was represented by attorneys Hunt and Barrett. The trial court had an evidentiary hearing on the appellant's motion for additional spousal support in the form of attorney fees over the course of two days on January 10, 2001 and January 11, 2001. The settlement agreement between the parties had already been reached at this juncture, but had not yet been journalized. The hearing consisted of testimony from the appellant, attorney Hunt and attorney Barrett. On January 25, 2001, the trial court issued a judgment entry in which it found that the amount of reasonable attorney fees incurred by the appellant was $10,000.00 as to attorney Barrett and $2,500.00 as to attorney Hunt. As the appellant had already paid attorney Hunt $2,500.00 over what the court determined to be the amount of fees reasonably incurred, the court ordered that attorney Hunt transfer to attorney Barrett the sum of $2,500.00. As has already been stated, the total amount of legal fees found by the court to be reasonably incurred by attorney Barrett was $10,000.00. After crediting the appellant $2,500.00 for fees already paid to attorney Barrett by appellant and $2,500.00 for fees ordered to be paid by attorney Hunt on appellant's behalf, the court found that the amount still due and owing to attorney Barrett by appellant was $5,000.00. The court refused appellant's request that it order the appellee to pay these outstanding attorney fees. The court specifically found that the appellant was capable of paying the additional $5,000.00 in attorney fees. The appellant timely filed the within appeal and assigns one assignment of error for this court's review: I. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO AWARD APPELLANT ALL ATTORNEY FEES AND COSTS INCURRED AS ADDITIONAL SPOUSAL SUPPORT AND BY NOT CONSIDERING APPELLANT'S NEED AND APPELLEE'S ABILITY TO PAY AS SET FORTH IN R.C. 3105.18(H). Appellant correctly notes that our standard of review in an appeal from a trial court's award of spousal support is an abuse of discretion standard. This court recently reviewed the standard for reviewing a trial court's award of spousal support in Millstein v. Millstein (Oct. 12, 2000), Cuyahoga App. No. 77158, unreported: It has long been the rule that an award of attorney fees is based on, among other things, necessity, and that necessity is determined by a consideration of the parties' financial situation, including income, assets and expenses. Barone v. Barone (Sept. 1, 2000), Lucas App. No. L-98-1328, unreported. Cassaro v. Cassaro (1976), 50 Ohio App. 2d 368, 363 N.E.2d 753. In Goode v. Goode (1991), 70 Ohio App. 3d 125, 134, 590 N.E.2d 439, the court noted that a trial court, in reviewing the record to determine the necessity and reasonableness of attorney fees, may use its own knowledge and experience. An award of attorney fees can be reversed only if the trial court abused its discretion. Birath v. Birath (1988), 53 Ohio App. 3d 31, 558 N.E.2d 63; Swanson v. Swanson (1976), 48 Ohio App. 2d 85, 355 N.E.2d 894. In determining whether to award reasonable attorney fees to either party, the trial court must decide "whether either party will be prevented from fully litigating that party's rights and adequately protecting that party's interests if it does not award reasonable attorney's fees." R.C. 3105.18(H). Fees may be awarded only if the payor spouse has the greater ability to pay. Lee v. Lee (1983), 10 Ohio App. 3d 113, 460 N.E.2d 710; Leff v. Leff (Mar. 2, 2000), Cuyahoga App. Nos. 75551, 75581, unreported. Applying that standard to the facts of this case we cannot conclude that the trial court committed reversible error when it failed to grant appellant's motion requesting that appellee be ordered to pay her outstanding legal liabilities. Per the terms of the party's settlement agreement, the appellee was to pay to appellant the sums of $5,865.00 in monthly spousal support and $4,605.36 in monthly child support, together totaling over $10,000.00 Thus, despite the appellant's protestations that she only earns $18,000 per year as a department store clerk while her husband has a successful medical practice, the trial court properly concluded that she had the means with which to pay her own legal fees. There was no necessity that the appellee be ordered to pay additional support in the form of attorney fees. Appellant would have this court consider only the respective income of the parties and ignore assets, expenses and other obligations. For the foregoing reasons, the appellant's lone assignment of error is overruled and the judgment of the trial court is 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 Common Pleas Court Domestic Relations Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, J., and JAMES J. SWEENEY, J., CONCUR.

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OPINION Plaintiff-appellant, Brenda J. Hodges, appeals a decision and decree of divorce entered by the Domestic Relations Division of the Butler County Court of Common Pleas. Appellant and defendant-appellee, Ronnie D. Hodges, were married on January 5, 1994, approximately six weeks after they first met. At the time of their courtship and marriage, appellee, an employee of General Electric, was in the process of starting a sideline business, known variously as "ABC," "Quality Connections Hotline," and "Contractor Hotline," the purpose of which was to furnish referrals for service providers in the construction industry. Appellee initially funded the business with a loan of approximately $13,000 which he obtained from refinancing his home. By February 1994, appellee had spent the $13,000 and the business was not generating any income. In addition, appellee's personal financial situation "wasn't very good." He was behind on credit card payments, car payments and payments on a land-contract. In February 1994, appellant refinanced her home, withdrew $15,000 in equity, and lent appellee approximately $13,500 to invest in the business. Appellee used most of the money to pay off his personal debts. By July 1994, appellee's business had failed and appellee filed for bankruptcy. On December 20, 1994, appellant filed a complaint for divorce. A hearing on all contested issues, including whether appellee's $15,000 debt was dischargeable in bankruptcy, was held in domestic relations division of the Butler County Court of Common Pleas on November 29, 1995, and continued to February 15, 1996. At the hearing before the trial court, appellant testified that appellee told her he would reaffirm the debt he owed her at the bankruptcy proceeding and that he would repay the loan. But, the record indicates, appellee did not reaffirm the debt. Instead, he received a discharge in bankruptcy of his debt to appellant in the amount of $15,000. Appellant then filed this appeal. Appellant presents the following two assignments of error for review: Assignment of Error No. 1: THE TRIAL COURT ERRED IN NOT FINDING THE DEFENDANT RESPONSIBLE TO PLAINTIFF FOR THE FIFTEEN THOUSAND DOLLAR LOAN THAT PLAINTIFF ASSISTED DEFENDANT IN PROCURING ON THE BASIS OF DEFENDANT'S FRAUDULENT CONDUCT. Assignment of Error No. 2: THE TRIAL COURT ERRED BY FAILING TO CONSIDER THE NON-DISCHARGABILITY OF DEFENDANT'S DEBT TO PLAINTIFF UNDER 11 U.S.C. § 523(a)(2) BECAUSE OF DEFENDANT'S FRAUDULENT CONDUCT. Appellant argues that appellee fraudulently induced her to loan him the $15,000, therefore, the trial court erred by failing to find appellant's debt to appellee not dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(2).11 U.S.C. Section 523(a)(2) states: A discharge * * * does not discharge an individual debtor from any debt — (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by — (A) false pretenses, a false representation, or actual fraud, * * * We begin by observing that appellant did not raise this argument below.1 Although appellant did file a motion for reconsideration with the trial court in which she argued that the trial court's order was "unjust" for failing to consider the "nondischargability of Defendant's debt to the Plaintiff under11 U.S.C. § 523(a)(2) because of Defendants [sic] fraudulent acts," we do not consider those arguments as having been properly before the trial court. In the trial court, motions for reconsideration after a final judgment and all judgments or final orders from them are a "nullity not contemplated by the civil rules." Pitts v. Ohio Dept. of Transportation (1981), 67 Ohio St. 2d 378,381; Consolidated Rail Corp. v. Forest Carthage Co. (1990), 68 Ohio App. 3d 333, 338. An appellate court will not consider as error an issue that is raised for the first time on appeal. Schade v. Carnegie Body Co. (1982), 70 Ohio St. 2d 207, 210. Thus, a party waives the right to raise an issue on appeal if the issue existed at the time of trial and the party did not raise it at the appropriate time in the lower court. State v. Awan (1986), 22 Ohio St. 3d 120, 123. Because appellant failed to raise the issue of whether the debt was dischargeable under 11 U.S.C. § 523(a)(2) before the trial court, she has waived any error on appeal. Appellant's assignments of error are overruled. The judgment of the trial court is affirmed. YOUNG, P.J., and POWELL, J., concur. 1 Appellant did argue that the debt was not dischargeable. However, the basis for his argument appears to have been that the debt was incurred in the course of divorce or separation. See11 U.S.C. § 523(a)(15).

2016-07-06 06:42:20.568157+00

OPINION JUDGMENT ENTRY {¶ 1} Defendant-appellant Sean Burroughs appeals the January 30, 2004 Judgment Entry of the Delaware Municipal Court, which denied appellant's counsel's motion to withdraw. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE CASE AND FACTS {¶ 2} Appellant was charged with driving under the influence in violation of Ohio Revised Code Section 4511.19(A)(1). The trial court appointed counsel to represent appellant. On January 28, 2004, eight days prior to the scheduled trial date, appellant's appointed counsel filed a motion to withdraw. The motion to withdraw requested the trial court appoint another attorney to be assigned by the Public Defender's Office. The request was not made by appellant, but by his attorney. The trial court, via Judgment Entry, denied the motion to withdraw on January 30, 2004. {¶ 3} On February 4, 2004, the day before the scheduled jury trial, appellant filed a pro se letter with the trial court requesting a postponement. According to a February 5, 2004 Judgment Entry, the trial court granted the request, and continued the matter until a new date as assigned by the trial court due to appellant's requesting new counsel and postponement. However, appellant entered a plea of no contest on February 5, 2004. The trial court accepted the plea, and sentenced appellant accordingly. {¶ 4} It is from the January 30, 2004 Judgment Entry of the trial court denying counsel's motion to withdraw appellant assigns the following as error: {¶ 5} "I. The appellant's sixth amendment right to counsel was violated by the trial court's refusal to allow appellant counsel of his choice." I {¶ 6} The first assignment of error is overruled. The Sixth Amendment right to counsel protects "the fundamental right to a fair trial." Strickland v. Washington (1984), 466 U.S. 668,684. "A fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." Id.,466 U.S. at 685, 104 S.Ct. at 2063. Thus, effective counsel is one who "plays the role necessary to ensure that the trial is fair," Id., 466 U.S. at 685, 104 S.Ct. at 2063, and "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id., 466 U.S. at 686,104 S.Ct. at 2064. {¶ 7} In speaking on the subject of effective assistance of counsel in State v. Hester, 45 Ohio St. 2d 71, (1976), the Ohio Supreme Court stated: {¶ 8} "We hold the tests to be whether the accused, under all the circumstances, including the fact that he had retained counsel, had a fair trial and substantial justice was done". {¶ 9} The right to effective assistance of counsel does not equate with the right of a defendant to have counsel of his choosing. As the court stated in Wheat v. United States (1988),486 U.S. 153, 159, 108 S. Ct. 1692, 1697: {¶ 10} "[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, theessential aim of the Amendment is to guarantee an effectiveadvocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." (Emphasis added). {¶ 11} An indigent defendant has a right to competent counsel, not a right to counsel of his own choosing. Thurston v. Maxwell (1965), 3 Ohio St. 2d 92, 93, 32 O.O.2d 63, 64. The right to competent counsel does not require that a criminal defendant develop and share a "meaningful relationship" with his attorney.Morris v. Slappy (1983), 461 U.S. 1, 13, 103 S. Ct. 1610, 1617;State v. Blankenship (1995), 102 Ohio App. 3d 534. {¶ 12} In State v. Green, Stark App. No. 1996CA00058, August 19, 1996, this Court held: {¶ 13} "The right of an accused to select his own counsel is inherent only in those cases wherein such accused is employing the counsel himself. The right to have counsel assigned by the court does not impose a duty on the court to allow the accused to choose his own counsel; the selection is within the discretion of the court. "Further, "[t]he right to competent counsel does not require that a criminal defendant develop and share a `meaningful relationship' with his attorney." State v. Blankenship (1995),102 Ohio App. 3d 534, 558. {¶ 14} "* * * [A]n indigent defendant is entitled to the appointment of substitute counsel only upon a showing of good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust result. Id., citing State v. Pruitt (1984),18 Ohio App. 3d 50, 57." {¶ 15} In the case sub judice, based upon our review of the record below, we do not believe that appellant has demonstrated that the breakdown in his relationship with his attorney either: (1) caused counsel's performance to be deficient; or (2) that any deficiency in counsel's performance prejudiced the defense. Accordingly, we find no evidence demonstrating substantial justice was not done. {¶ 16} Appellant's sole assignment of error is overruled. {¶ 17} The January 30, 2004 Judgment Entry of the Delaware Municipal Court denying counsel's motion to withdraw, and appellant's subsequent conviction and sentence are affirmed. Hoffman, J., Gwin, P.J. and Wise, J. concur. For the reason stated in our accompanying Memorandum-Opinion, the January 30, 2004 Judgment Entry of the Delaware Municipal Court is affirmed. Costs assessed to appellant.

2016-07-06 06:42:24.544169+00

OPINION {¶ 1} Appellant-father, Todd G., appeals a decision of the Butler County Court of Common Pleas, Juvenile Division, in which the court issued dispositional orders concerning *Page 2 minor child, T.G., including adoption of the case plan and modification of parental visitation. {¶ 2} On March 14, 2007, the magistrate issued a decision adjudicating T.G. dependent and awarding temporary custody of T.G. to the Butler County Children Services Board ("the agency"). The trial court upheld the magistrate's decision over objection by T.G.'s mother and father on June 15, 2007. This court affirmed the trial court's decision on April 14, 2008. In re T.G., Butler App. Nos. CA2007-07-158, CA2007-07-171,2008-Ohio-1795. On October 10, 2007, however, during the pendency of the appeal, the magistrate conducted a dispositional hearing concerning T.G. At the conclusion of the hearing, the magistrate ordered that the case plan be adopted, that the agency devise a plan to enable T.G.'s parents to participate in T.G.'s treatments and therapies, and that supervised parental visitation continue to occur in the parents' home twice per week for a period of two hours each. {¶ 3} Over appellant's objection, the trial court adopted the magistrate's decision on January 11, 2008. Appellant thereafter instituted the present appeal, advancing two assignments of error. Because our resolution of appellant's first assigned error is determinative of his second, we shall address the assignments of error together. {¶ 4} Assignment of Error No. 1: {¶ 5} "THE TRIAL COURT ERRED WHEN IT HELD THE DISPOSITIONAL HEARING AND MADE DISPOSITIONAL ORDERS BECAUSE IT LACKED THE JURISDICTION AND AUTHORITY TO PROCEED." {¶ 6} Assignment of Error No. 2: {¶ 7} "THE TRIAL COURT ERRED WHEN IT DID NOT MAKE AN EXPRESS FINDING REGARDING REASONABLE EFFORTS AND ABUSED ITS DISCRETION WHEN IT IMPLICITLY FOUND THAT REASONABLE EFFORTS HAD BEEN MADE BECAUSE THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT A FINDING OF *Page 3 REASONABLE EFFORTS AND/OR SUCH FINDING WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE." {¶ 8} In his first assignment of error, appellant argues the trial court lacked jurisdiction to make dispositional orders where an appeal concerning the trial court's original adjudication and temporary custody decision was pending on appeal before this court. The agency, however, contends the dispositional order from which appellant appeals is not a final appealable order, precluding this court's review of the matter. {¶ 9} It is well-established that appellate courts have jurisdiction to review only final appealable orders from lower courts. In reAdams, 115 Ohio St.3d 86, 2007-Ohio-4840, ¶ 26; In re T.M., Madison App. Nos. CA2006-01-001, CA2006-01-004, 2006-Ohio-6548, ¶ 12, citing Section 3(B)(2), Article IV, Ohio Constitution, In re Murray (1990),52 Ohio St.3d 155, 156, and R.C. 2505.03. Where an appeal involves matters lacking a final appealable order, an appellate court lacks jurisdiction to review such matters and must dismiss the appeal accordingly. In reT.M., citing In re J.V., Franklin App. No. 04AP-621, 2005-Ohio-4925, ¶ 24. {¶ 10} R.C. 2505.02(B) provides, in relevant part, that a "final order" is: {¶ 11} "(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment; {¶ 12} "(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment * * *." {¶ 13} The Ohio Supreme Court has held that proceedings in the juvenile division are special statutory proceedings. In re Adams at ¶ 43. A "substantial right," for purposes of R.C. 2505.02, is a legal right entitled to enforcement and protection by law, and one which, if not immediately appealable, would foreclose appropriate relief in the future. In re T.M. at ¶ 17, 19. The Ohio Supreme Court has recognized that "parental custody of a child is an important legal right protected by law and, thus, comes within the purview of a `substantial right' for *Page 4 purposes of applying R.C. 2505.02." In re Murray at 157. {¶ 14} Generally, whether an order is final and appealable is determined by the effect the order has on the pending action, rather than the name attached to the order or its general nature. In reT.M. at ¶ 18, citing In re Murray. The purpose of a final appealable order is to prevent a case from being presented to the court of appeals in fragments. Id. at ¶ 21, citing Squire v. Guardian Trust Co. (1946),147 Ohio St. 1 and In re Boehmke (1988), 44 Ohio App.3d 125, 128. Notably, this court has previously held that a juvenile court's order modifying a case plan is not a final appealable order. See id. at ¶ 22, 23. Additionally, this court has held that a juvenile court's order denying a parent's motion for a change in visitation is not a final appealable order. See In re Neal (Mar. 7, 1994), Butler App. No. CA93-06-117, at 5, citing In re Boehmke (finding that "[w]ere * * * visitation provisions] considered a final order, there would be nothing to prevent the piecemeal litigation of each aspect of the proposal at issue, as well as any other steps the court might take prior to a final disposition of the custody issue. The resulting delay and disruption of the judicial process would benefit no one"). {¶ 15} In this case, we conclude the trial court's dispositional order does not qualify as a final appealable order under either R.C. 2505.02(B)(1) or (2). The record demonstrates that upon commencement of the dispositional hearing, the agency requested that visitation be reduced and the case plan be adopted. The trial court, noting that an appeal was pending before this court, indicated it "may back away from certain dispositional recommendations" but that it would "make a decision as to what should happen at this point in time regarding some * * * services and * * * the issue of visitation * * *." A review of the transcript from the dispositional hearing demonstrates that the main issue addressed therein concerned visitation. {¶ 16} At the conclusion of the hearing, the trial court did not modify the temporary *Page 5 custody order it had previously established, and that was pending on appeal at the time of the hearing, or make any custody determinations. Rather, the trial court ordered, in relevant part, that the case plan be adopted, and that parental visitation "continue to occur in their home * * * twice per week * * * for two (2) hours each. The [agency] shall make up for any missed visits caused by the weather or by the agency within thirty (30) days of any such missed visit." {¶ 17} It is clear such orders do not determine the action and prevent a judgment, as they do not determine the outcome of the underlying dependency action. See In re Adams, 2007-Ohio-4840 at ¶ 36, 37. See, also, In re T.M., 2006-Ohio-6548 at ¶ 22, 23. In addition, with respect to the court's order concerning adoption of the case plan, it is clear such order does not foreclose appellant from appropriate relief in the future. In re T.M. With respect to the court's visitation order, while a later appeal of such order would be "impracticable," Ohio courts have held there is "a compelling need to deny appellate review" of such matters to avoid piecemeal litigation and the resulting delay it causes both the parties and the judicial system. In re Boehmke,44 Ohio App.3d at 127-128. See, also, In re Neal, Butler App. No. CA93-06-117 at 5;In re Christian (July 23, 1992), Athens App. No. 1507, 1992 WL 174718 at *3, 4. {¶ 18} Accordingly, we find the dispositional order is not a final appealable order, and that this court is without jurisdiction to consider the matter. The present appeal must therefore be dismissed. {¶ 19} Appeal dismissed. WALSH, P.J. and BRESSLER, J., concur. *Page 1

2016-07-06 06:42:24.606025+00

OPINION On October 10, 1992, appellant, Shannan Austin, was injured in an automobile accident caused by Dennis Lisk. Mr. Lisk was insured by appellee, Allstate Insurance Company, with limits of liability of $15,000 per person, $30,000 per occurrence. The parties attempted to settle the case but were unsuccessful. Thereafter, appellant filed a lawsuit and received a default judgment against appellee in the amount of $33,000. Appellee filed a motion to vacate judgment which was denied. On March 12, 1997, appellee filed a complaint for declaratory judgment against appellant. Appellee sought declarations that it did not negotiate in bad faith and it owed appellant only $15,000. On March 27, 1997, appellant filed a motion to dismiss. On April 14, 1997, appellant filed a counterclaim for malicious prosecution and a motion for attorney's fees. By judgment entries filed May 9, 1997, the trial court granted appellant's motion to dismiss, but denied appellant's motion for attorney's fees finding appellee's conduct in filing the declaratory judgment complaint was not "patently frivolous." On May 16, 1997, appellant filed a motion to amend the counterclaim to include a claim of abuse of process. On June 3, 1997, appellee filed a motion to dismiss the counterclaim. By judgment entry filed July 30, 1997, the trial court denied appellant's motion to amend and granted appellee's motion to dismiss. Appellant filed a notice of appeal and this matter is now before this court for consideration. Assignments of error are as follows: I THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S COUNTERCLAIM. II THE TRIAL COURT ERRED IN RULING THAT PLAINTIFF'S COMPLAINT WAS NOT FRIVOLOUS AND, THEREFORE CONCLUDING THAT A COUNTERCLAIM FOR ABUSE OF PROCESS MUST FAIL. I, II Appellant claims the trial court erred in dismissing the counterclaim for malicious prosecution and in denying the motion to amend the counterclaim. We agree. By judgment entry filed May 9, 1997, the trial court dismissed appellee's declaratory judgment complaint finding there was no real controversy between adverse parties. In ruling on appellant's motion for attorney's fees, the trial court found appellee's "conduct in filing a Motion for Declaratory Judgment is not `patently frivolous'." See, Judgment Entry filed May 9, 1997. The trial court did not provide any reason for this finding. In its subsequent entry of July 30, 1997 denying appellee's motion to amend, the trial court stated "[i]n determining that the original action was not frivolous, the court concluded that the action was not brought for an improper purpose. Therefore, a claim for abuse of process must fail." In this same judgment entry, the trial court dismissed appellant's counterclaim without comment on the claim for malicious prosecution. Frivolous conduct is defined in R.C. 2323.51 as follows: (2) `Frivolous conduct' means either of the following: (a) Conduct of an inmate or other party to a civil action, * * * that satisfies any of the following: (I) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation. (ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law. The elements for a malicious prosecution claim are as follows: (1) malicious institution of prior proceedings against the plaintiff by defendant; (2) lack of probable cause for the filing of the prior lawsuit; (3) termination of the prior proceedings in plaintiff's favor; and (4) seizure of plaintiff's person or property during the course of the prior proceedings. (Citations omitted.) Crawford v. Euclid Natl. Bank (1985), 19 Ohio St.3d 135, 139. The elements for an abuse of process claim are as follows: (1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process. Yaklevich v. Kemp, Schaeffer and Rowe Co., L.P.A. (1994), 68 Ohio St.3d 294, paragraph one of the syllabus. Based upon the foregoing, we find the trial court's equating of "no frivolous conduct" to "no malicious prosecution" and "no abuse of process" to be in error. Assignments of Error I and II are granted. The judgment of the Court of Common Pleas of Stark County, Ohio is hereby reversed and remanded. Farmer, P.J., Hoffman, J. and Wise, J. concur.

2016-07-06 06:42:24.678627+00

OPINION {¶ 1} Defendant-appellant, Anthony S. Davis ("appellant"), appeals from the judgment of the Franklin County Court of Common Pleas, whereby a jury convicted appellant of possessing criminal tools, a violation of R.C. 2923.24, a felony of the fifth degree, and burglary, a violation of R.C. 2911.12, a felony of the second degree. Appellant entered a no contest plea to a charge of breaking and entering, a violation of R.C. 2911.13, a felony of the fifth degree. {¶ 2} The charges against appellant arose from events occurring in August 2003, when break-ins occurred at the Patient Care Medical Services ("PCMS") offices and the Columbus Speech and Hearing Center ("Center"). On the evening of August 22, 2003, Mary Lesko, an employee of PCMS, was working late. Hearing noises, she left her office to inspect and saw a man standing in the common area to the PCMS suite of offices. The man, whom this employee later identified as appellant, said that he was looking for a nurse. The employee informed the man that the offices were closed for the day, and the man left. The employee then found evidence that someone had tampered with the door and, upon further inspection, she and other employees found that filing cabinets and boxes of cell phones had been disturbed. A Columbus police officer dusted the cell phone boxes for fingerprints, and a fingerprint examiner matched a fingerprint to appellant. {¶ 3} On the morning of August 27, 2003, employees of the Center found evidence that desks, a file cabinet, and offices had been tampered with. Leanne Parnell found a large screwdriver on her desk and discovered her CD player and a CD missing. Katie Toman, whose office was down the hall from Parnell's office, found that her desk drawers had been disturbed, but no items were missing. A Columbus police officer dusted both areas for fingerprints, and a fingerprint examiner matched several fingerprints from the inside of Toman's desk drawer to appellant. {¶ 4} On September 26, 2003, the Franklin County Grand Jury indicted appellant on four counts arising from the two incidents. Counts 1 and 2 of the indictment charged appellant with breaking and entering and possession of criminal tools arising out of the August 27, 2003 break-in at the Center. Counts 3 and 4 (as amended) charged appellant with burglary and possession of criminal tools arising from the August 22, 2003 break-in at PCMS. {¶ 5} On February 2, 2005, while voir dire was in progress, appellant indicated that he wanted to plead no contest to Count 1, breaking and entering at the Center, and that he wished to proceed pro se. After lengthy questioning, the trial court allowed appellant to represent himself, but defense counsel remained at counsel table in an advisory position. At oral argument before this court, appellant's counsel relayed appellant's belief that he never signed a plea form. However, our record includes a no contest plea form, which appellant signed on February 2, 2005, and the court filed on February 9, 2005, and by which appellant pled no contest to the charge of breaking and entering at the Center. {¶ 6} After trial began, appellee, State of Ohio, moved to dismiss Count 4, possessing criminal tools at the PCMS offices. Thus, only Counts 2 and 3, possessing criminal tools at the Center and breaking and entering at the PCMS offices, were before the jury. On February 8, 2005, the jury found appellant guilty on both counts. {¶ 7} At appellant's request, the court proceeded immediately to sentencing. The court sentenced appellant to 12 months as to Counts 1 and 2, to be served concurrently, and eight years for Count 3, to be served consecutively to the 12-month sentence. {¶ 8} Appellant timely appealed to this court, and he has raised the following assignments of error: ASSIGNMENT OF ERROR NO. 1: A TRIAL COURT ABUSES ITS DISCRETION WHEN IT ALLOWS PRIOR BAD ACTS INTO EVIDENCE IN A CRIMINAL TRIAL. ASSIGNMENT OF ERROR NO. 2: A TRIAL COURT COMMITS REVERSIBLE ERROR WHEN IT FAILS TO [INSTRUCT] THE JURY IN A CRIMINAL TRIAL OF THE ELEMENTS OF AN OFFENSE. ASSIGNMENT OF ERROR NO. 3: A TRIAL COURT ABUSES ITS DISCRETION WHEN IT ALLOWS THE PROSECUTION TO PRESENT EVIDENCE REGARDING CHAIN OF CUSTODY OF A FINGERPRINT CARD WHERE SUCH EVIDENCE WAS NOT TIMELY SUBMITTED TO THE DEFENSE. ASSIGNMENT OF ERROR NO. 4: A TRIAL COURT ABUSES ITS DISCRETION WHEN IT PUNISHES A CRIMINAL DEFENDANT FOR EXERCISING HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL BY CHARGING WHAT IS COMMONLY REFERRED TO AS "RENT." ASSIGNMENT OF ERROR NO. 5: THE CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶ 9} We begin with appellant's fifth assignment of error, in which he asserts that his conviction is against the manifest weight of the evidence. We disagree. {¶ 10} In determining whether a verdict is against the manifest weight of the evidence, we sit as a "thirteenth juror."State v. Thompkins (1997), 78 Ohio St.3d 380, 387. Thus, we review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of witnesses. Id. Additionally, we 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.'" Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175; see, also, Columbus v. Henry (1995), 105 Ohio App.3d 545, 547-548. We reverse a conviction on manifest weight grounds for only the most "`exceptional case in which the evidence weighs heavily against the conviction.'" Thompkins at 387. Moreover, "it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible." State v. Brown, Franklin App. No. 02AP-11, 2002-Ohio-5345, at ¶ 10. {¶ 11} As to the charge of breaking and entering on August 22, 2003, at the PCMS offices, the state offered the testimony of Ms. Lesko. Lesko testified that the suite of PCMS offices is on the fourth floor of a four-story office building, which is accessible only by key card after hours. Lesko stated that she was working in her office at about 7:45 p.m., after normal business hours. She heard noises and walked out of her office. She encountered a man, whom she later identified as appellant, in the foyer to the PCMS offices. The man told Lesko that he was looking for a nurse. On cross-examination by appellant, Lesko admitted that a service dog accompanying her was not agitated upon arrival at the offices. {¶ 12} After the man's departure, Lesko and other employees found that locks on filing cabinets in the suite of offices were broken and that boxes of cell phones had been disturbed. A Columbus police detective found evidence of forced entry on a door to the building. That same detective tested for fingerprints on the boxes of cell phones. A Columbus police fingerprint examiner matched one of two useable prints to appellant's left index finger. Appellant later admitted to a Columbus police investigator that he was at the PCMS offices, but stated that he was there looking for a job. According to the investigator, appellant also stated that Lesko was upset because the offices had been burglarized and that she took him through the offices. {¶ 13} As to the charge of possessing a criminal tool arising from the August 27, 2003 break-in at the Center, which occupies three floors of a four-story office building, the state offered the testimony of three Center employees. They testified that doors and desk drawers in the second-floor offices had been pried open. Parnell found a large screwdriver on her desk and also found a CD player and CD missing from her office. {¶ 14} A Columbus police detective dusted for fingerprints at the scene. There was conflicting testimony about whether anyone attempted to lift fingerprints from the screwdriver, which police did not recover immediately. No fingerprints from the screwdriver were admitted into evidence. Of the prints lifted from Toman's office, a Columbus police fingerprint examiner matched the prints to four fingers on appellant's left hand. On cross-examination by appellant, the examiner admitted that she had made one mistaken match early in her training, but had made hundreds of thousands of identifications during her 11-year tenure as an examiner. {¶ 15} In support of his argument that the verdicts are against the manifest weight of the evidence, appellant admits that he was present at both locations. According to appellant, "[a]t one facility he was in search of an employee and at the other he was in search of gainful employment." While his fingerprints were found at both scenes, he argues, those fingerprints do not indicate when he was there. Finally, he points to Lesko's testimony that he was well-mannered and calm when she encountered him. He asks this court to determine whether this evidence is credible and reliable. {¶ 16} We find that the evidence is credible and reliable. From our careful review of the record in this case, including the direct evidence of appellant's presence at both scenes, we conclude that the jury did not lose its way. It was reasonable for jurors to believe the testimony of the state's witnesses and, from that testimony, find appellant guilty on both charges. Therefore, we overrule appellant's fifth assignment of error. {¶ 17} In his first assignment of error, appellant asserts that the trial court abused its discretion when it admitted evidence of appellant's prior bad acts, in violation of Evid.R. 404(B). In essence, appellant argues that his plea of no contest to the charge of breaking and entering at the Center precluded the state from admitting any evidence concerning the break-in. An abuse of discretion standard applies to our review. State v.Mardis (1999), 134 Ohio App.3d 6, 20. {¶ 18} On October 18, 2004, even though he was represented by counsel, appellant filed a pro se motion for relief from prejudicial joinder. In his motion, he asked the court to separate the offenses into separate trials. He argued that, even though the indictment included two counts of possessing criminal tools arising from the two break-ins, the state only had one tool from one break-in. Although there is no record of the court hearing or deciding appellant's joinder motion expressly, at a hearing on November 8, 2004, the court discussed appellant's numerous pro se motions generally and denied all of them. At that hearing, appellant also waived his right to a jury trial as to the counts arising from the break-in at the Center (Counts 1 and 2), thus mooting his motion regarding joinder. However, on the first day of trial, February 2, 2005, appellant indicated that he wished to plead no contest to the breaking and entering charge (Count 1) and proceed to a jury trial on the remaining three counts. The record reveals the following: MR. BENTON [appellant's counsel]: Your Honor, it's Mr. Davis' request that the Court permit him to enter a no contest plea to the one count of the indictment that charges him with breaking and entering and proceed to trial only on the remaining count related to burglary. THE DEFENDANT: The remaining three counts. (Tr. at 12.) Thus, not only did appellant and his counsel fail to raise the joinder issue to the court at the time of trial, they both indicated their desire to proceed on all remaining counts. {¶ 19} As noted, during voir dire, appellant asked to proceed pro se. As part of the discussion regarding appellant's request, appellant revealed that he and his counsel disagreed over whether appellant's no contest plea to the charge of breaking and entering at the Center would preclude the state from presenting the fingerprint evidence in support of the charge of possessing a criminal tool at the Center. The court informed appellant that it would admit all evidence relevant to the possession charge and explained its reasoning in detail. {¶ 20} During opening arguments, counsel for appellee referred to the August 27, 2003 break-in at the Center. Appellant objected, stating: "This objection centers around the fact that a no contest plea has already been stipulated that will be entered into this case, and mentioning past wrong acts will prejudice the jury as far as the burglary case." (Tr. at 62.) Appellee countered that evidence of the break-in at the Center was necessary to support a showing that a tool had been used "criminally." (Tr. at 63.) The court overruled the objection. {¶ 21} When a fingerprint examiner began to testify regarding the prints found in Toman's office at the Center, appellant again objected. Appellant stated: "The screwdriver was not found in that office. That office has nothing to do with the screwdriver. He's bringing that up now just to taint the jury that there was another crime involved, and that's not under the jury's consideration at this point." (Tr. at 221.) The court overruled the objection, stating: "I understand your argument, Mr. Davis, but whether that print has anything to do with a screwdriver is up to the jury." (Tr. at 222.) {¶ 22} On appeal, appellant raises Evid.R. 404(B), which provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. {¶ 23} Thus, as a general rule, evidence of previous or subsequent criminal acts, wholly independent of the criminal offense for which a defendant is on trial is inadmissible. However, "other acts" evidence is admissible if it is related factually or chronologically to the acts alleged in the indictment or if the evidence forms the immediate background for the crimes charged. State v. Thompson (1981),66 Ohio St.2d 496. Evidence of other crimes may be presented when they are so blended or connected with the one on trial that proof of one incidentally involves the other, explains the circumstances thereof or tends logically to prove any element of the crime charged. State v. Wilkenson (1980), 64 Ohio St.2d 308, 317. {¶ 24} Here, as the trial court explained, in order for the state to prove that appellant was guilty of possessing a criminal tool, the state had to show that appellant possessed a tool "with purpose to use it criminally." R.C. 2923.24(A). The state did this by introducing evidence of the following: (1) desks, a file cabinet, and offices at the Center had been tampered with; (2) a CD player and CD were missing from Parnell's office; (3) a large screwdriver was found in Parnell's office; and (4) appellant's fingerprints were found inside a desk drawer in Toman's office. While some or all of this evidence would have supported the breaking and entering charge relating to the Center, the state introduced it for independent purposes: (1) to identify appellant as the person who possessed the screwdriver; and (2) to show appellant's intent to use the screwdriver to commit the crime of breaking and entering at the Center. As R.C. 2923.24(C) provides, in order to find appellant guilty of the felony charged, the jury had to determine whether he intended to use the screwdriver to commit breaking and entering. Therefore, admission of the evidence did not violate Evid.R. 404(B). {¶ 25} Nor did admission of evidence of the Center break-in prejudice appellant as to the PCMS break-in. In opening arguments, appellee presented the break-ins as "two separate factual situations, two separate incidents[.]" (Tr. at 53.) During the trial, appellee offered evidence with respect to each break-in separately from the other. At closing arguments, appellee argued to the jury that the evidence supported each of the elements applicable to each separate break-in. And, the court instructed the jury to keep its consideration of the two charges separate. The court stated: The charges set forth in each count of the indictment constitute a separate and distinct matter. You must consider each count and the evidence applicable to each count separately, and you must state your finding as to each count uninfluenced by your verdict as to any other count. * * * Ladies and gentlemen, that last instruction I gave you, in simple terms what it means is you can't find the Defendant guilty of one count simply because you found him guilty of the other. You can't make that broad generalization here. * * * (Tr. at 359.) {¶ 26} The court went on to explain that, if the jury found that appellant had committed an act or acts charged in the indictment, then the jury could only consider "the evidence of those acts or act as bearing upon the Defendant's motive, intent, opportunity, preparation, plan, or knowledge." (Tr. at 359-360.) The court cautioned, however, that the state "must prove identity beyond a reasonable doubt. If you find that the Defendant committed the other act or acts, you may not presume that he committed acts charged." (Tr. at 360.) {¶ 27} As we have already determined, the manifest weight of the evidence supported the jury's guilty verdict as to each charge. The state presented evidence to support each charge independent of the other. Therefore, we find that the court did not abuse its discretion by allowing the submission of evidence relating to the August 27, 2003 break-in at the Center, and we overrule appellant's first assignment of error. {¶ 28} In his second assignment of error, appellant alleges that the trial court erred by failing to instruct the jury properly. Specifically, appellant alleges that the court failed to give the jury complete definitions of the elements of the crimes at issue. We disagree. {¶ 29} As to the charge of possessing criminal tools, appellant alleges that the court failed to define "criminal tool." In its verbal instructions to the jury, the court stated that the jury "must find beyond a reasonable doubt that on or about the 27th day of August, 2003, in Franklin County, Ohio, the Defendant possessed a device with purpose to use it criminally." (Tr. at 361.) The court also stated: "If any word is not specifically defined for you, specially defined, then you're to use the everyday common English usage meaning of the word." Id. {¶ 30} The court also explained further: "Now, if your verdict is guilty concerning possession of criminal tools, you will separately decide whether the State has proven beyond a reasonable doubt that the Defendant intended to use the device to commit the offense of breaking and entering." (Tr. at 362.) The court then went on to explain each element of a breaking and entering offense, that is, that appellant "knowingly by force, stealth, or deception trespassed in an unoccupied structure with purpose to commit therein any theft offense." (Tr. at 362.) As to breaking and entering, the court defined the terms "force," "trespass," "knowingly," and "theft." As appellant points out, the court did not define the terms "stealth," "deception" or "unoccupied structure." {¶ 31} This failure to define terms, appellant argues, resulted in the jury's confusion and their need to ask questions during deliberation. The jury submitted four written questions to the court, and three of those questions related to the criminal tools charge. First, the jury asked: "In order to find [defendant] guilty of possession of criminal tools as charged do we need to believe that the screwdriver had to be the tool used?" The court responded: No. Please refer to your Jury Inst[ruction] last paragraph page 6 continued on to page 7. Before you can find the Defendant guilty of [possession of criminal tools] you must find . . . [sic] that he possessed the screwdriver, exhibit G, with purpose to use it criminally. {¶ 32} Second, the jury asked: "What if all cannot agree on single verdict?" The court responded to this question by giving the jury a charge based on State v. Howard (1989),42 Ohio St.3d 18. {¶ 33} Then, the jury asked two simultaneous questions. First: "Can the defendant be found guilty without all agreeing that exhibit `G' was not in possession although some tool was used?" The court responded: "No." Lastly: "Based on the verdict does that reference to criminal tools refer to only the evidence exhibit `G'?" The court responded: "Yes." {¶ 34} Ordinarily, as Crim.R. 30(A) provides, a party may not assign as error the giving of, or the failure to give, any instruction unless the party makes a timely objection thereto. The only exception to this waiver provision is where there is plain error or a defect affecting a substantial right. Crim.R. 52(B). We are to invoke the plain error doctrine only in exceptional circumstances to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 94-95. An instruction does not constitute plain error unless, but for the error, the outcome of the trial would clearly have been different. State v. Ballew (1996), 76 Ohio St.3d 244, 251;State v. Rice (Mar. 26, 1987), Franklin App. No. 86AP-911. {¶ 35} Our review of the record indicates that appellant objected to the jury instructions, but on grounds different from those presented here. Therefore, we agree with appellant that he waived all but plain error with respect to the definitions contained in the jury instructions. {¶ 36} To support error, appellant argues that the jury's questions indicate that the court's instructions were "inadequate and confusing to the jury. This, coupled with a pro se defendant, beg for a new trial based on ambiguous jury instructions." We find, however, that the jury's questions do not indicate confusion about the definitions that might apply to the charges. Rather, three of the jury's questions indicate confusion about whether appellant could be convicted of possessing a criminal tool other than the screwdriver, not whether the screwdriver or any other device was a "criminal tool." The other question, which prompted the Howard charge, indicates a lack of agreement among jurors, not confusion about the elements at issue. {¶ 37} In giving both the written and verbal instructions, the court followed closely the language of the applicable statutory provisions. While the court did not define "criminal tool," the court did provide extensive instruction concerning the specific criminal purpose alleged to be at issue, breaking and entering. And, while the court did not provide special definitions for every term applicable to each charge, there is no indication in this record that the jury was incapable of applying ordinary English usage to these terms. Appellant has not directed us to a single case that would require us to find the instructions, taken as a whole, insufficient. More importantly, appellant has not shown that, but for the instruction, the outcome of the trial would have been different. As we concluded above, the weight of the evidence supports the jury's findings. {¶ 38} Finally, appellant urges us to consider that he was acting pro se. We find, however, that his "advisory" counsel had substantial involvement in the jury instructions and even filed proposed instructions. In addition, appellant made other specific objections to the instructions and even persuaded the court to make changes to them. Therefore, for all of the stated reasons, we overrule appellant's second assignment of error. {¶ 39} In his third assignment of error, appellant asserts that the trial court allowed the prosecution to present evidence regarding the chain of custody of a fingerprint card without having timely submitted the evidence to the defense. However, appellant directs our attention to the portion of the transcript where appellant, not the prosecution, questions Officer Lewis about a chain of custody slip — a slip appellant now says "had no connection to Davis' case[.]" After questioning Officer Lewis about the chain of custody slip, appellant then objected to its use and stated that the prosecution had not given it to him in discovery. The prosecution responded that the state was not going to offer the chain of custody slip as evidence and, therefore, Crim.R. 16 did not require its release to appellant. See Crim.R. 16(B)(1)(c). The court agreed and overruled the objection. {¶ 40} Appellant's alleged error is based on a misreading of the record. It was his own cross-examination that invited Officer Lewis' testimony concerning chain of custody, not the prosecution's examination. He may not complain on appeal about an alleged error he invited. State ex rel. Beaver v. Konteh (1998), 83 Ohio St.3d 519, 520-521. Therefore, we overrule appellant's third assignment of error. {¶ 41} In his fourth assignment of error, appellant asserts that he "was clearly assessed a `rental fee' for usage of the courtroom in the exercise of his constitutional right to a jury trial." He directs us to a discussion with the trial court, which he argues "is penalizing Davis for going to trial." {¶ 42} The court sentenced appellant to 12 months on each charge arising from the break-in at the Center, to be served concurrently. Thus, appellant received no additional time for his crime of possessing a criminal tool. {¶ 43} The court sentenced appellant to eight years for his crime of burglary at the PCMS offices, to be served consecutive to the 12-month sentence. The court did not impose a fine, but did assess costs. The court explained: * * * I normally do not assess costs, but in this particular case the Defendant had me fire one lawyer, had me hire another lawyer for him, then didn't want that lawyer, who sat here throughout this trial. We went through a delay of trial in days — hours, in order to get his witnesses here from the institution at State expense, and then he didn't even use those witnesses at trial. This has been a pattern of behavior. I don't normally do this, but I'm doing it in this case. (Tr. at 396-397.) {¶ 44} The court then gave a detailed explanation of his reasoning for the maximum burglary sentence and consecutive sentences. He focused on appellant's record, which included eight theft-related convictions over 19 years, including offenses committed while appellant was on parole. The court concluded: "[I]t appears that you're either locked up behind bars or you're out messing with other people's property in one way or another." (Tr. at 401.) {¶ 45} The court then informed appellant of his right to appeal his convictions and told him that, if he could not afford a lawyer, counsel would be appointed for him at state expense. At his request, appellant's current counsel was appointed. {¶ 46} Appellant then identified for the court another case that "should be coming before you shortly." (Tr. at 405.) He asked for counsel to be appointed in that case, and he made a request for a specific lawyer who was not immediately familiar to the court. The following exchange, which contains the excerpt to which appellant points us here, then occurred: MR. DAVIS: When will I know? Will she contact me or will the Court contact me? When will I know if the Court has appointed her? THE COURT: Well, for the time being Mr. Benton is on these cases, so if that changes, you'll be notified. MR. DAVIS: Thank you, Your Honor. THE COURT: Mr. Davis, once again I'm not saying this to be mean, but you started out with a chance to have a four-year sentence. You had a chance before we started this one to have an eight-year sentence. You're now up to nine years and you need to get — MR. DAVIS: Five more to go. THE COURT: — you need to be getting somebody to be talking on your behalf to the Prosecutor to find out what can be done or we'll just keep going and going and going here. And I don't know what the evidence is on these other cases. * * * * * * But you seem to be an intelligent man. I don't know why you're bent upon marching down this road that you seem to be marching down. It just doesn't make any sense to me. (Tr. at 406-407.) {¶ 47} From our reading of the sentencing-related discussions between appellant and the trial court, as well as our reading of the pre-trial, trial, and post-trial proceeding transcripts, we can only conclude that the trial court provided to appellant every possible accommodation. Appellant's use of an isolated statement taken out of context misrepresents the trial court's intentions, which clearly were to assist appellant and to lessen any further damage appellant might cause to his own defense. Appellant's claim that the trial court penalized him for asserting his right to a jury trial is simply baseless. Therefore, we overrule his fourth assignment of error. {¶ 48} Having overruled appellant's first, second, third, fourth, and fifth assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. Klatt and Sadler, JJ., concur.

2016-07-06 06:42:20.594489+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: Robert E. Biehl appeals from two orders of the Akron Municipal Court, one finding him 100 percent negligent for failing to control his truck, and the other denying his motion for a new trial. We affirm. The controversy at issue stems from a collision that occurred when Biehl and the driver of another truck, Gene Riggin, were traveling south on State Route 8 in Akron. When Biehl refused to pay for damage caused to Riggin's truck, Grange Mutual Casualty Company, Riggin's insurer, paid Riggin $2,462.49 for repairs, becoming subrogated as to that amount. Grange and Riggin then brought a claim against Biehl, alleging negligent operation. The trial court overruled Biehl's motion to dismiss, and the matter was tried to the bench. At the conclusion of trial, the court found Biehl "100% negligent in failing to control his vehicle and in leaving his lane of travel to collide with [Riggin]" and awarded damages in the amount of $2,712.49 to Plaintiffs. The court determined the following to be the relevant facts adduced at trial: On March 3, 1995, at approximately 7:15 a.m., Plaintiff's insured (Gene Riggin) was traveling southbound on Route 8 from Cuyahoga Falls to Akron. He was driving a white 1992 Ford pick-up truck and traveling in the right or curb lane as he approached the Perkins Street exit. He felt a jolt as he turned to his left to see a blue pick up truck driven by Defendant. Riggin pulled off the side of the expressway and used his car phone to call police. While waiting for the police to arrive, Robert Biehl, driver of the blue truck approached Riggin. When confronted with the statement, "You're the guy who just hit my truck," Biehl did not deny having done so. Biehl, who was also traveling southbound on Route 8, was traveling in the high speed or passing lane when he noticed a problem with his steering. He put on his brakes and felt his car surge to the right. He then put on his hazard lights. As he was traveling roughly 50 mph, he alleges a car traveling in the center lane hit him from the right causing him to lose control and spin out on the highway. Fortunately, the traffic behind him had come to a stop and did not collide with his truck as it came to rest facing eastbound across two lanes of traffic. Biehl was able to move his car onto the Perkins Street ramp where one of the rear tires came off completely. Just ahead of the Plaintiff's insured and the Defendant's vehicle was a car driven by William Duve, a co-worker of Riggin. Duve testified of seeing from his rear-view mirror the Defendant's truck swing out of control and collide with Plaintiff's truck. Each party submitted photographs of the respective vehicles. Biehl moved for a new trial, alleging as grounds Plaintiffs' misconduct, perjury, and newly discovered evidence. The trial court overruled the motion, finding that Biehl had presented "no new evidence which would justify granting a new trial pursuant to Civil Rule 59." Biehl has appealed, asserting three assignment of error. I. In his first assignment of error, Biehl argues that the trial court's judgment finding him negligent in causing damage to Riggin's truck was against the manifest weight of the evidence. He points specifically to Riggin's faulty memory at trial, inconsistencies between Biehl's testimony and that of Riggin, inconsistencies between photographs in evidence and the court's version of the facts, and the biased testimony of William Duve. In reviewing a judgment in a civil case that is alleged to be against the weight of the evidence, a court will only reverse when it "is so manifestly contrary to the natural and reasonable inferences to be drawn from the evidence as to produce a result in complete violation of substantial justice." Jacobs v. Benedict (1973), 39 Ohio App.2d 141, 144, quoting 3 Ohio Jurisprudence 2d (1953) 817, Appellate Review, Section 819. The judgment of the trier of fact is only to be disturbed when "it clearly appears that the conclusion reached cannot be supported by any rational view of the evidence." Id. at 144-145. Thus, an appellate court cannot reverse a judgment in a civil action if it is "supported by some competent, credible evidence." C.E. Morris Co. v. FoleyConstr. Co. (1978), 54 Ohio St.2d 279, 280. Biehl has provided this court with only a partial transcript of the trial court proceedings. He has provided the testimony of Riggin and Duve, the witness to the collision, but was unable to provide this court with a transcript of his own testimony or that of the investigating officer. Biehl has also included with this appeal climatological data that was not admitted into evidence by the trial court. App.R. 9(B) requires an appellant who is arguing that the verdict is contrary to the evidence to include in the record "a transcript of all evidence relevant to the findings or conclusion," and not merely selected portions of the record. (Emphasis added.) In the absence of an adequate record or a substitute statement of the evidence as permitted by App.R. 9(C) and (D), an appellate court must presume the validity of the lower court's proceedings and affirm. Buckingham, Doolittle Burroughsv. Brady (Feb. 1, 1995), Summit App. No. 16835, unreported, at 2, citing Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197,199. See, also, Helton v. Helton (1994), 102 Ohio App.3d 733,737. As to the climatological data provided by Biehl, a reviewing court cannot consider an exhibit unless the record demonstrates that the exhibit was formally admitted into evidence in the lower court. State v. Ishmail (1978), 54 Ohio St.2d 402, paragraph one of the syllabus; Moore v. Nichol (Oct. 30, 1991), Summit App. No. 15062, unreported, at 9. Thus, we may not consider the climatological data as part of this appeal. Since there is nothing in the record to demonstrate that the partial transcript contains all of the evidence relevant to the issue of negligence, we cannot conclude that the judgment of the trial court was against the manifest weight of the evidence. SeeState v. Steen (1984), 18 Ohio App.3d 68, 69. Biehl's first assignment of error is overruled. II. In his second assignment of error, Biehl argues that the judgment rendered by the trial court was contrary to law because the court failed to apply the sudden emergency doctrine to his circumstances. Biehl maintains that he reacted reasonably, and not negligently, when his truck developed a steering problem and moved to the right on the highway. He notes that he activated his hazard lights and that his truck was hit by another vehicle which caused him to lose control. In considering whether a judgment is contrary to law, an appellate court considers the facts in evidence but may not weigh the evidence or assess the credibility of witnesses. Pangle v.Joyce (1996), 76 Ohio St.3d 389, 391. The sudden emergency doctrine provides "that one who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence."Mapes v. Opper (1983), 9 Ohio App.3d 140, 141. "In a negligence action, the so-called `emergency doctrine' applies only where there was a sudden and unexpected occurrence of a transitory nature which demanded immediate action without time for reflection or deliberation and does not comprehend a static condition which lasted over a period of time." Miller v. McAllister (1959),169 Ohio St. 487, paragraph six of the syllabus. In order to invoke the sudden emergency doctrine, a motorist must show that something over which he had no control, or an emergency not of his own making, made him react in a way that would otherwise be considered negligent. See Mapes v. Opper,9 Ohio App. 3d at 141. "A self-created emergency, one arising from his own conduct or from circumstances under his control, cannot serve as an excuse." Id. A defendant claiming the defense of sudden emergency is required to establish by a preponderance of the evidence "that the claimed emergency was not the result of any fault of the defendant, or any circumstance under his control, and further that he exercised such care as a reasonably prudent person would exercise under the same or similar circumstances." Radeckiv. Lammers (1968), 15 Ohio St.2d 101, paragraph two of the syllabus. Applying this standard to the instant case, and on the partial record before us, we find that Biehl failed to establish by a preponderance of the evidence that the claimed emergency created by his faulty steering and brakes was not the result of his fault or a circumstance under his control. Riggin testified that he was "just driving along like this and pretty soon wham, something hits me in the side of the door — I look like that, here I see this blue pick up truck, just bouncing across the — the highway." Duve testified that he saw an "out of control" blue truck hit Riggin's white truck. Riggin testified that, after he pulled over, Biehl approached him and said, "`My tire's going flat' or something like that." Biehl's trial testimony is not in the record before us. However, the trial court's findings of fact indicate that Biehl "noticed a problem with his steering" and "put on his brakes and felt his car surge to the right." The record establishes only that Biehl was driving erratically and that, according to him, he experienced some problem with his driving. Nothing in the record establishes that any potential problems with his truck were not known to Biehl previously or that remedying those problems was not under his control. Accordingly, Biehl has failed to establish that he demonstrated to the trial court that his collision with Riggin was the result of a sudden emergency. We note, moreover, that we can find nothing in the record to establish that Biehl ever presented a defense of sudden emergency to the trial court. Biehl steadfastly maintained throughout his various motions to the court, through his answers to Plaintiffs' interrogatories, and in a separate accident report he filed with the police that his truck and Riggin's truck were hit by a third vehicle that left the scene of the accident. A fundamental rule of appellate review is that a reviewing court will not find error in any issue that a party was aware of but failed to bring to the trial court's attention. Schade v. Carnegie Body Co. (1982),70 Ohio St.2d 207, 210. As to the existence of a third car and its hit-skip driver, the trial court determined as a factual matter that the car did not exist. We cannot determine as a matter of law that it did. Biehl's second assignment of error is overruled. III. Biehl attached to his motion for a new trial a copy of Riggin's deposition and an affidavit by Biehl in which he claimed that Riggin: (1) admitted at his deposition that Biehl's truck did not collide with Riggin's truck; (2) admitted through his statement to police at the scene of the accident that a "car" had hit his truck; and (3) stated at his deposition that a witness behind his truck saw Biehl's truck collide with Riggin's when, in fact, the witness testified that he was in front of Riggin's truck and saw the collision through his rear-view mirror. Biehl also attached to his motion, and claimed as new evidence, four photographs of his truck "which were found in Defendant's dresser drawer while cleaning." In his third assignment of error, Biehl argues that the trial court abused its discretion by failing to properly address and grant his motion for a new trial. He states that he demonstrated the grounds for a new trial set forth in Civ.R. 59(A)(2) and (A)(8). He claims that his affidavit cited various instances of perjury and misstatements by Riggin at trial and that the photographs he presented constituted newly discovered evidence. Civ.R. 59(A)(2) provides: Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: * * * (2) Misconduct of the jury or prevailing party; * * * (8) Newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at trial[.] The decision whether to grant or deny a motion for a new trial is left to the sound discretion of the trial court. Dawson v.Metrohealth Ctr. (1995), 104 Ohio App.3d 654, 656. A reviewing court may not reverse a trial court's decision on this issue absent an abuse of discretion. Id. "Abuse of discretion" connotes more than an error of law or judgment as it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Cedar Bay Constr., Inc. v. Fremont (1990),50 Ohio St.3d 19, 22. In Biehl's affidavit attached to his motion for a new trial he asserted that Riggin had committed misconduct and perjury by: (1) admitting at his deposition that Biehl's truck did not collide with his truck; (2) by stating for purposes of the accident report that a "car" had hit his truck; and (3) by testifying at trial that Riggin's blue truck had hit his truck. Riggin's statement, taken by police after the collision, states, "I was traveling N. On Rt. 8 [at] Perkins St. I was in curb lane a car came from inside lane struck my truck on the driver side door. The other driver wouldn't wait for the police." Riggin testified both at his deposition and at trial that he felt something hit his truck and when he looked to the side he saw a blue pick-up truck "bouncing" across the highway. Despite his sworn testimony, he admitted at his deposition that he "might have said car" when he made his statement to police. Evidence before the trial court included photographs of both Riggin's and Biehl's trucks, which Riggin took the day of the accident. The photographs show the damage to both trucks and show blue paint at the point of impact on Riggin's white truck, and white paint at the point of impact on Biehl's blue truck. Riggin never testified that Biehl's vehicle did not hit his truck; he testified only that he did not see the collision at the moment of impact. In light of all of the evidence, we cannot conclude that the trial court abused its discretion in overruling Biehl's motion for a new trial on the basis of Riggin's conflicting statements. The trial court was in the position to determine whether Riggin's use of the word "car" when making his statement to police was a generalization by a person just involved in a collision or evidence of misconduct or perjury. Biehl also maintained in his affidavit that at his deposition Riggin had described Duve as being behind Riggin when the collision occurred. In fact, Duve testified that he was in frontof Riggin and had observed the collision through his rear-view mirror. Biehl maintained in his affidavit that this contradiction amounted to perjury by Duve, misconduct by Riggin, and misconduct by Riggin's counsel who "had the transcript in his brief case and he knew the answers to his questions." We do not agree. The contradiction may raise a question of credibility, but Biehl failed to demonstrate to the trial court, or to this court, how that contradiction amounts to perjury by a witness and misconduct by the prevailing party or his counsel. Consequently, we cannot determine that the trial court abused its discretion in denying Biehl a new trial on these grounds. With respect to the photographs that Biehl claimed to be newly discovered evidence, two of the photographs are close-up views of a bolt-punctured tire, one is a view of the tire leaning against the replacement tire, and the fourth is a view of Biehl's truck ostensibly showing damage caused by the hit-skip driver. Biehl placed an explanation on the back of each of these photographs and dated them "11-12-96." There is nothing to establish when they were taken. In order to justify the granting of a new trial on the basis of newly discovered evidence: "(1) the new evidence must be such as will probably change the result if a new trial is granted, (2) it must have been discovered since the trial, (3) it must be such as could not in the exercise of due diligence have been discovered before the trial, (4) it must be material to the issues, (5) it must not be merely cumulative to former evidence, and (6) it must not merely impeach or contradict the former evidence."Otterbacher v. Brandywine Ski Center, Inc. (May 23, 1990), Summit App. No. 14269, unreported, at 14-15. We fail to see how the four photographs at issue would change the result of the trial. Nor are the photographs evidence that, with diligence, could not have been discovered before trial. Biehl's third assignment of error is overruled. The decision of the trial court is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this court, directing the County of Summit Akron Municipal Court to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to appellant. Exceptions. _______________________________ WILLIAM R. BAIRD FOR THE COURT SLABY, P. J. QUILLIN, J., J. CONCUR. APPEARANCES: SUSAN H. BURNS, Attorney at Law, for Appellant. HERBERT L. NUSSLE, Attorney at Law, for Appellee.

2022-11-23 16:04:54.389093+00

Per Curiam

PER CURIAM: This case is before the court on exceptions to the report of Trial Judge Francis C. Browne. After consideration of the briefs and oral argument of the parties, we adopt the report, as modified, as an opinion of this court. Because we find it unnecessary to reach the issue of whether there was a "sonic” easement, we delete that portion of the report discussing the issue. Additionally, we delete that portion of the report dealing with rights of third-party plaintiffs; thus, who shares in the award shall be determined at the time of the final judgment. *242The novelty of this decision is in its holding that defendant’s use of airspace at altitudes above 500 feet, and independent of landing and takeoff, may be a taking of land beneath if the use is peculiarly burdensome. A vital factor of this case is that defendant devised an exercise to prepare trainees for future landings on aircraft carriers, in which heavy jet aircraft followed one another almost nose to tail in an unvarying loop over plaintiffs land. Trainees were required to hold their planes, preparatory for landing on the supposititious carrier deck, with noses up and tails down, with near maximum power (and noise) associated with low speed. Defendant could have performed this exercise elsewhere but selected airspace over plaintiffs land for it because alternative locations were deemed even more objectionable. Thus, plaintiff was consciously singled out or selected to bear a burden which defendant also consciously elected not to impose on others, even others otherwise similarly situated. This is a classic statement of a taking situation. Whether use of airspace above 500 feet for noisy air navigation of a more conventional variety can be held a taking is an issue that can be and is reserved for the case that presents it. In this case our taking holding turns on the peculiar facts the trial judge has found. The trial judge’s report, as modified, follows.1 OPINION OF TRIAL JUDGE* BROWNE, Trial Judge: This is an action for recovery of just compensation for the alleged taking of an easement over plaintiffs property by "inverse condemnation” as a consequence of the operation of defendant’s aircraft over that property.1 Plaintiff is a general partnership in which Cloide C. Branning (hereinafter referred to in personam as "Bran-*243ning”) is the "surviving” partner. The partnership was formed and operated under the name "Pleasant Point Plantation.” Defendant is, of course, the United States of America. Morgan Guaranty Trust Company of New York (hereinafter referred to as "Morgan”) has joined in the action as a third-party plaintiff in view of its alleged equitable interest in the property.2 The court has jurisdiction of the subject matter and the parties under Title 28, United States Code, Section 1491, the claim being founded on the fifth amendment to the Constitution of the United States, it being alleged that defendant has taken the subject property without due process of law and without just compensation. Synopsis The Pleasant Point Plantation partnership (hereinafter referred to as "plaintiff’), is a general partnership which was formed in 1973 in Beaufort, South Carolina, by Cloide C. Branning, H. Jack Pendley, Jr., and David M. Pendley. Plaintiff acquired a tract of approximately 525 acres on Lady’s (or Ladies) Island, Beaufort County, South Carolina, known as "Pleasant Point Plantation” (hereinafter referred to as the "property”) from Pleasant Point Plantation, Inc., a South Carolina corporation, the stock of which had been owned by Branning prior to sale of the property to plaintiff. The United States Marine Corps Air Station, Beaufort (hereinafter referred to as "MCAS-Beaufort”) is located northwest of the city of Beaufort; it is just across Brickyard Creek, due west of plaintiffs property. Defendant established the facility as a naval air station in 1943 and it served as a training base for the Navy until 1946, when it was disestablished. Ten years later (1956), it was recommissioned as a Marine Corps Auxiliary Air Station and, in 1961, was redesignated as a Marine Corps Air Station. The basic mission of the station was, and still is, to provide facilities for Marine Corps aircraft operations and training. *244One type of training conducted on and around the station consists of practice landings and takeoffs designed to simulate aircraft carrier takeoffs and landings. One type of operation is referred to as "field mirror landing practice” (FMLP). In the course of such operation, the prescribed flight pattern requires the trainees to take off from the runway on the station and then fly defendant’s aircraft directly over plaintiffs property in a "racetrack pattern” at an altitude of 600 feet above ground level (AGL) and return to the runway. The pattern is repeated by each aircraft several times, the training exercise being conducted squadron-by-squadron (and virtually nose-to-tail at 25 to 30-second intervals) over a period of several days during each month in which training is conducted. Originally such training employed single-engine (A-4) and vertical takeoff (AV-8 Harrier) aircraft, but later employed twin-engine (F-4) aircraft.3 A second type of operation is one which does not employ the field mirror system, but is a "Touch-and-Go” pattern. In this exercise, the aircraft fly the same "racetrack pattern” directly over plaintiffs property, but the aircraft pass over the plaintiffs property at 1,000 feet AGL instead of 600 feet AGL. Plaintiff asserts that the noise created by the frequence and altitude at which the defendant’s F-4 aircraft fly over *245the subject property on Lady’s Island, particularly in the FMLP pattern, has reduced or destroyed the value of the property for its highest and best use, namely, for single family residential use and development as provided in plaintiffs master plan. In support of its position plaintiff relies upon "Air Installation Compatability Use Zone” (hereinafter referred to as "AICUZ”) studies and charts prepared on behalf of, adopted, published, and implemented by defendant. These studies are relied upon to establish that property located in the "CNR 3” zone, as plotted in the studies and charts, has been rendered "clearly unacceptable”4 for low, medium, or high density residential use as a consequence of defendant’s aircraft overflights. Plaintiff further relies upon defendant’s admission in its answer that "* * * CNR Zone 3 is regarded as unsuitable for residential use or development.” Morgan goes one step further and contends that there has also been a taking by defendant of all property located in the "CNR 2”5 zone, as plotted in the AICUZ studies and charts, since property in that zone is "normally unacceptable” for residential use and, therefore, may not be used for its highest and best use. Defendant denies that its operations over plaintiffs property constitute a taking, since the altitude at which the aircraft fly over plaintiffs property is not below 500 feet AGL, and the noise created by operation of flights at 600 feet AGL by any type of aircraft, regardless of the noise created, does not constitute a taking of plaintiffs property. Defendant also contends that as long as none of the flights were below 500 feet AGL over plaintiffs property, publication of defendant’s AICUZ studies and charts cannot constitute a taking of plaintiffs property under the fifth amendment to the Constitution of the United States either by itself or coupled with actual flights at or above 500 feet AGL over plaintiffs property. *246 MCAS-Beaufort Operations MCAS-Beaufort6 is a military installation of the United States of America and is part of a complex which includes the Marine Corps Recruit Depot at nearby Parris Island and the U.S. Naval Hospital at nearby Port Royal. All are located in Beaufort County, near the City of Beaufort, South Carolina. Beaufort County is located in the southeastern corner of South Carolina, along the Atlantic coast between Charleston, South Carolina, and Savannah, Georgia. The City of Beaufort and the Navy-Marine Corps complex lie between the Broad River on the west and the Beaufort and Coosaw Rivers on the east and north. The Broad and Beaufort Rivers converge into Port Royal Sound opposite the well-known resort area known as Hilton Head Island, South Carolina, just south of Beaufort. Beaufort County’s economy is dominated by two major factors — its geographic and climatic conditions and, secondly, by the presence of the military. More than 50 percent of the labor force in the county is military. Indeed, historically the area has played a significant role in maritime operations along the southeast Atlantic coast. Port Royal Island was claimed by Spanish explorers in 1521, but the entire area was claimed by the British in 1663. Beaufort was chartered as a town in 1710, and has been designated as a national historical site. However, as was the case with any other areas of the South, Beaufort County suffered from the consequences of the Reconstruction and the Great Depression of the 1930’s. Even the World War II era of the 1940’s did little to help the economy in the area. During the 1950-60 decade, however, the population of Beaufort County increased by 63.7 percent, largely due to immigration of military-oriented, people from other counties in the region. As a consequence, the area became more urbanized and more subject to the problems which result from urbanization. One of such problems was land use and the impact of various land uses on the environment. *247In 1942 (during the early years of World War II), the Beaufort County Board of Directors reached an agreement with the Civil Aeronautics Administration to establish an airport at the present site of MCAS-Beaufort. The site was acquired by defendant and designated for use as a major naval air station; operational facilities were completed in 1943. It was used from 1943 to 1946 as a Navy training base and was disestablished in 1946. For 10 years the site was not used by defendant. However, in 1956 defendant, having a need for a jet aviation base in the southern Atlantic coastal area, recommissioned the station as a Marine Corps Auxiliary Air Station. Five years later, in 1961, the station was redesig-nated as a Marine Corps Air Station. The evidence in this case does not disclose what types of jet aircraft operated from MCAS-Beaufort in the 1960’s, but a compilation of data for the period 1963 to 1970 shows the number of aircraft operations under IFR (Instrument Flight Rules) and VFR (Visual Flight Rules), quarter-by-quarter for each year during that period. The original records from which that compilation was made are not in evidence, but the compilation is deemed to be a business (and historical) record and is acceptable as the best evidence available for the purpose of determining the number of such operations during that period. A record maintained as an "Air Traffic Activity Report” shows the same type of information on a semi-annual basis from July 1, 1970 to December 31, 1977. This form, however, also adds the number of radar approaches and divides the operations into categories of military and civilian aircraft; it further distinguishes the military aircraft operations between Navy/Marine Corps and Other Military. Aircraft Noise Impact Studies The Navy Facilities Engineering Command (Southern Division) of the Department of the Navy, pursuant to a directive from the Department of the Navy, contracted with Tracor, Inc. (hereinafter referred to as "Tracor”), of Austin, Texas, to conduct a study of aircraft and related noise in the *248vicinity of MCAS-Beaufort at that time. A report was submitted to the Commanding Officer of that command on May 14, 1973. The report was based on measurement of aircraft noises both on and off the station and on information and records provided by station personnel. The data and measurements were used to prepare "Composite Noise Rating” (CNR) contours to serve as a guide to compatible land uses and for evaluation of existing and projected noise impact on the community in and around MCAS-Beaufort, including the City of Beaufort and Lady’s Island. The computations were based on the numbers and kinds of aircraft in use at the station at the time and the anticipated operations for the ensuing year. Since the plaintiff did not acquire the property in suit until after the Tracor study was completed, consideration must be given not only to the altitude at which defendant’s aircraft have flown over the property, but also the type of aircraft and the frequency or timing of the flights both before and after plaintiff acquired the property in order to determine whether or not the taking of an easement occurred while plaintiff was the owner of the subject property. The Tracor study was completed by May 14, 1973. Plaintiff acquired the property in suit on November 28, 1973. As of May 14, 1973, there had been, on the average, 1,222 FMLP operations per month. Those operations normally occurred within one 5-day week for F-4 and A-4 aircraft, and within two 5-day weeks for AV-8A7 aircraft. All such operations were under VFR and no aircraft but the A-4, F-4, and AV-8 performed the FMLP operation. The 1973 study reported that the average number of F-4 and A-4 FMLP operations were equal, i.e., 389 each, per month, based on one 5-day week, each, per month. Also, at that time 29 percent of the total station operations were conducted by F-4’s, 29 percent by the A-4’s, 35 percent by the AV-8’s, 3.5 percent by T-28’s and 3.5 percent by transport aircraft. However, only about 14 percent of the F-4 operations (or 4 percent of all operations) were FMLP operations by the F-4 aircraft. *249In late 1975, Tracor was employed as a consultant to the firm of Burns and McDonnell under a NAVFAC contract to do another aircraft noise study with respect to the aircraft and related noise then existing and projected in the vicinity of MCAS-Beaufort. The study was completed in 1976. The 1976 study was based, in part, on the data and measurements made for the 1973 study. New CNR contours were prepared for the expected 1976 operations. An additional set of CNR contours was prepared which depicted the effects of various operational changes that had been recommended and accepted for implementation in the AICUZ study prepared by Burns and McDonnell. The operations data reflected in the Tracor report dated December 13, 1976, (but based on data obtained in late 1975), shows that the A-4 FMLP operations had dropped to zero, but the F-4 FMLP operations had increased to an average of 1,400 per month, all of which occurred during one 7- to 10-day training period each month. This was almost four times the average number of F-4 FMLP operations in 1973, and was almost two times the total average number of monthly combined F-4 and A-4 FMLP operations in 1973. Thus the total noise impact on the area was increased by a combination of the greater number of F-4 operations and the greater noise level created by the F-4 aircraft. The difference in F-4 FMLP activity between 1973 and 1976 is attributable to the fact that in 1973 there was but one squadron (12 aircraft) of twin-engine F-4’s stationed at MCAS-Beaufort, and five squadrons (60 aircraft) of single-engine A-4’s, whereas by December 1976, there was an entire Marine Air Group (MAG-31) consisting of five squadrons of F-4’s (60 aircraft at full strength) and no A-4 squadrons stationed at MCAS-Beaufort.8 There is nothing in the record of this case to explain why 600 feet was the prescribed altitude for the F-4 FMLP pattern at MCAS-Beaufort, whereas an altitude of 450 feet was prescribed at NALF-Orange Grove. The evidence does, *250however, establish that the F-4 "racetrack” FMLP pattern at MCAS-Beaufort was wider and shorter than that of the F-4’s and A-4’s for Touch-and-Go landing operations. In either case, the aircraft flew over a part of plaintiffs property, but more F-4’s traversed plaintiffs property than A-4’s. The prescribed altitude for the FMLP pattern on the downwind leg of the pattern (over plaintiffs property) at one time was 800 feet but later was reduced to 600 feet, thus increasing the noise level on the ground. The reason for or the date of that change, however, is not known, and neither the flight path nor the pattern altitude for FMLP’s as of 1973 was mentioned in the 1973 Tracor report.9 AICUZ Study and Report The Air Installation Compatible Use Zone (AICUZ) Program has been instituted in an effort to coordinate the requirements of the missions of military air installations, with the development of the surrounding communities. The AICUZ is a concept of identifying compatible and incompatible land use around an air station, the purpose being to guide compatible private development through cooperation with local jurisdictions in order to minimize public exposure to aircraft noise and accident potential, while at the same time maintaining the operational capability of the station. The AICUZ studies take into account two principal factors. One is the aircraft noise impact on the area; the other is the aircraft accident potential. The areas impacted by aircraft noise are designated as CNR (Composite Noise Rating) Zones, whereas the aircraft accident potential areas are designated as APZ (Accident Potential Zones). The area of the highest aircraft noise impact (115 decibels10 and above, at ground level) is designated as CNR Zone 3, the area of modest noise impact (100 to 115 decibels) is *251designated as CNR Zone 2, and the areas of little, if any, noise impact (less than 100 decibels) are designated as CNR Zone 1. The APZ’s are classified as "Clear Zone,” "APZ-I” or "APZ-II,” depending on whether the area is most critical (Clear Zone), moderate potential for aircraft accidents (APZ-I) or least critical, but possessing some potential for aircraft accidents (APZ-II). In the course of preparing the AICUZ study for MCAS-Beaufort, 13 specific possible operational modifications were investigated and analyzed. These 13 possible modifications were in addition to the various noise-related changes that had been made in the past. At least two of these possible changes in the operations at MCAS-Beaufort would have significantly reduced the noise over plaintiffs property. Of the 13 modifications considered, only 6 of them were considered to be of sufficient benefit to be implemented. However, none of the six that were accepted had any significant effect on the noise levels over plaintiffs land.11 Among the operational modifications specifically considered and rejected by the Marine Corps was to terminate future FMLP training operations at MCAS-Beaufort and transfer these training exercises to Page Field on Parris Island. This would have eliminated the flights that are the cornerstone of plaintiffs complaints. An analysis of this alternative disclosed that such a transfer would create an equivalent noise problem in the Page Field area and would adversely impact other residential areas. The Marine Corps similarly rejected a proposal to raise the FMLP training flight pattern altitude from 600 to 1,000 feet. This would have lessened the noise level over plaintiffs property caused by these flights. In adopting the AICUZ study, the Marine Corps concluded that this alternative should be rejected since it would be a nonstandard FMLP flight pattern and contrary to the training procedure and the requirements of the base mission for MCAS-Beau-fort. Thus, it was decided that the plaintiff landowner should bear the burden of aircraft noise and low-level *252flights even though such flights would render the property clearly unacceptable for normal residential use. The evidence in this case clearly establishes that the CNR Zone 3 and CNR Zone 2 "footprints” include portions of plaintiffs property on Lady’s Island. This is not, in and of itself, sufficient to establish a taking of plaintiffs property by the defendant. It does, however, constitute valuable evidence of the impact of defendant’s aircraft operations on that part of plaintiffs property over which defendant’s A-4 and F-4 jet aircraft were operating when flying the FMLP pattern. The ultimate facts found in this case are: 1. Defendant’s F-4 aircraft made standard operational flights over plaintiffs property in performing FMLP training by the squadrons of a full air group at a level flight altitude of 600 feet (plus or minus 50 to 100 feet) AGL which aircraft created more noise than the previously flown A-4 aircraft and such greater noise was sufficient to constitute an immediate and direct intrusion upon plaintiffs property, which intrusion was so substantial as to detract from and interfere with plaintiffs full enjoyment of the property by limiting plaintiffs exploitation of it as a medium density residential development, its highest and best use. 2. Defendant has not only intruded upon plaintiffs property but has also given public notice of the adverse effect thereof upon plaintiffs property by adopting, publishing, and approving for implementation the AICUZ study of 1976 in which at least part of plaintiffs property has been designated as unsuitable or unacceptable for medium density residential use. 3. All of the foregoing acts of defendant occurred during the time plaintiff was the owner of the property in suit and the present action was brought less than 6 years after plaintiffs claim against defendant first accrued. The value of plaintiffs property right and the exact date of the taking are left for determination in further proceedings under Rule 131(c). 4. There has been no assignment to plaintiff of any claim against defendant, the claim asserted by plaintiff having first accrued to plaintiff after plaintiff acquired the property in issue. *253 The Case Law The leading case in the realm of "inverse condemnation” as a consequence of the flight of aircraft over private property ("avigation easements”) is United States v. Causby, 328 U.S. 256 (1946). The most recent decision of the Court of Claims on this subject, however, is Lacey v. United States, 219 Ct. Cl. 551, 595 F.2d 614 (1979). In the 33-year interval between Causby and Lacey there have been a goodly number of cases involving differing factual situations and different governmental entities. Also within the last few years numerous articles have been written on the subject of "noise pollution”12 in which noise impact, alone, is considered to be the source of the encroachment on private property, notwithstanding the particular altitude at which the aircraft passes over the property. The Supreme Court long ago put to rest the ancient common law doctrine that ownership of the land extends to the periphery of the universe. In United States v. Causby, supra, the Supreme Court held that "[t]he airspace, apart from the immediate reaches above the land, is part of the public domain.” 328 U.S. at 266. In Causby, it was not necessary to define "the immediate reaches” to which the limits of a landowner’s rights extend above the land, and the Court expressly declined to do so. Id. The Court of Claims, in applying the holding of Causby, likewise has avoided a definition of the "immediate reaches” of private ownership, stating: "[t]he Causby case established the rule that flights by Government-owned aircraft over private land are a 'taking’ under the Fifth Amendment of an easement in the overhead airspace if such flights are so low and so frequent as to be a direct and immediate interference with the use and enjoyment of the land.” Lacey v. United States, 219 Ct. Cl. at 553, 595 F.2d at 615 (emphasis supplied). At the time of Causby, Congress had legislated that "[t]he United States of America is hereby declared to possess and exercise complete and exclusive national sovereignty in the *254air space above the United States * * 49 U.S.C. § 176(a) (1940) (current version at 49 U.S.C. § 1508 (a) (1976)). Congress had also recognized and declared that every citizen of the United States has "a public right of freedom of transit in air commerce through the navigable air space of the United States.” 49 U.S.C. § 403 (1940) (current version at 49 U.S.C. § 1304 (1976)). "Navigable airspace” was then defined as "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority [CAA] * * *.”49 U.S.C. §180 (1940).13 The aircraft in Causby passed over the plaintiffs land along a glide path at an altitude of 83 feet, and thus were not within "the navigable airspace” which Congress had declared to be in the public domain. Thus the United States was not immune from suit under the above statutes and the taking of an easement, in the constitutional sense, was found. The Court pointed out that had the CAA (now the FAA) prescribed 83 feet as the minimum safe altitude of flight, the validity of the regulation would then have been called into question. 328 U.S. at 263. Congress’ regulatory power over air navigation (or "avi-gation”) and the public right of freedom of travel in the navigable airspace of the United States is analogous to, stems from, and is subject to the same constitutional limitations as Congress’ regulatory power over, and the public’s right to travel in the "navigable waters” of the United States. It was upon this premise that Congress declared the "navigable airspace” to be a "public highway” in the Air Commerce Act of 1926, ch. 344, 44 Stat. 568 (1926). In enacting the 1926 Act, Congress intended to apply existing principles of the law of water transportation to air transportation. The House report accompanying the bill stated: The provisions of the bill are not unique or unprecedented. In practically every case each provision has a precedent in an existing provision of law, and is modeled upon *255and often paraphrased from it. Usually these existing provisions are those of the marine navigation laws. This is natural for the reason that air space, with its absence of fixed roads and tracks and aircraft with their ease of maneuver, present as to transportation practical and legal problems similar to those presented by transportation by vessels upon the high seas. s{: sfc sj: * s}: The declaration of what constitutes navigable air space is an exercise of the same source of power, the interstate commerce clause, as that under which Congress has long declared in many acts what constitutes navigable or nonnavigable waters. The public right of flight in the navigable air space owes its source to the same constitutional basis which, under the decisions of the Supreme Court, has given rise to a public easement of navigation in the navigable waters of the United States, regardless of the ownership of the adjacent or subjacent soil. [H.R. Rep. No. 572, 69th Cong., 1st Sess. 9-10 (1926); emphasis supplied.] The Federal Government’s plenary power to regulate navigable airspace is unquestionable. However, just as the aquatic navigational servitude does not afford a blanket exemption from the taking clause of the fifth amendment whenever Congress exercises its commerce clause authority to regulate aquatic navigation, Kaiser Aetna v. United States, 444 U.S. 164, 172 (1979), the avigational servitude does not preclude application of the taking clause when Congress, in acting to regulate aviation, exceeds its reasonable power to regulate. Subsequent to the decision in Causby, as part of the Federal Aviation Act of 1958, Pub. L. No. 85-726, 72 Stat. 731, Congress redefined "navigable airspace” to mean "airspace above the minimum altitudes of flight prescribed by regulations issued under this chapter, and shall include airspace needed to insure safety in take-off and landing of aircraft.” 49 U.S.C. § 1301 (26) (1976).14 In Griggs v. Allegheny County, 369 U.S. 84 (1962), the Supreme Court was faced with a situation where flights along a glide path above the plaintiffs land, while below 500 feet, were nevertheless within the navigable airspace as declared by *256Congress in the 1958 Act. The Court held that a taking had occurred despite the fact that the landing planes were within the navigable airspace of the United States as defined by Congress and as determined by the applicable regulations. 369 U.S. at 88-89. This court in Aaron v. United States, 160 Ct. Cl. 295, 311 F.2d 798 (1963), found that owners of property over which planes flew at an elevation of less than 500 feet were entitled to compensation, but they were not entitled to compensation for flights above 500 feet although they may have been "inconvenienced to some extent by these flights.” Id. at 300, 311 F.2d at 801. But as the court pointed out: This is not to say that a case could not arise where the unavoidable damage to a person’s property occasioned by travel in the navigable air space would be so severe as to amount to a practical destruction or a substantial impairment of it. When such a case arises we would then have to consider whether the relevant statutes and regulations violated the property owners’ constitutional rights * * * [Id. at 301, 311 F.2d at 801; emphasis supplied.] This is such a case and the facts warrant such consideration. The spirit of the Causby rule was evident in the Federal courts even prior to the Supreme Court’s decision in Causby. See Cory v. Physical Culture Hotel, Inc., 14 F. Supp. 977, 982 (W.D.N.Y. 1936) (Although his rights to the airspace are limited, the owner of the surface may prevent the use of airspace above that actually occupied by him to the extent that its use unreasonably interferes with his complete enjoyment of the surface. "The height at which an airplane operator may pass above the surface without trespassing is a question depending for solution on the facts in the particular case, and this question is unaffected by the regulations promulgated * * * under the Air Commerce Act of 1926 * * *.”). As the Court of Appeals for the District of Columbia Circuit has more recently pointed out in another context, although the navigable airspace has been declared to be in the public domain, "[rjegardless of any congressional limitations, the land owner, as an incident to his ownership, has a claim to the superjacent airspace’ to the extent that a *257reasonable use of his land involves such space.” Palisades Citizens Association, Inc. v. C.A.B., 420 F.2d 188, 192 (D.C. Cir. 1969) (footnote omitted and emphasis supplied). Thus it is clear that the Government’s liability for a taking is not precluded merely because the flights of Government aircraft are in what Congress has declared to be navigable airspace and subject to its regulation.15 In virtually all of the cases in which recovery has been awarded for the overflights of aircraft, the value of the land in question was diminished, not by the mere presence of the aircraft in the superjacent airspace, but by the attendant noise. Under the "great weight” of Federal authority, noise alone, without an actual physical invasion of the superja-cent airspace, is merely consequential damage within the rule of Richards v. Washington Terminal Co., 233 U.S. 546 (1914),16 and thus not compensable under the fifth amendment. Batten v. United States, 306 F.2d 580 (10th Cir. 1962), cert. denied, 371 U.S. 955 (1963); Avery v. United States, 165 Ct. Cl. 357, 330 F.2d 640 (1964); Town of East Haven v. Eastern Airlines, Inc., 331 F. Supp. 16 (D. Conn. 1971), aff’d on other grounds, 470 F.2d 148 (2d Cir. 1972). On the other hand, many State courts have allowed recovery for a taking based solely upon the impact of noise from aircraft flights without regard to whether there was also a physical invasion of the superjacent airspace. E.g., Thornburg v. Port of Portland, 376 P.2d 100 (Ore. 1962); Henthorn v. Oklahoma City, 453 P.2d 1013 (Okla. 1969).17 *258The Thornburg case involved flights along two different flight paths. Planes flying in the first path flew close to the plaintiffs’ land but not directly over it; the noise created by the planes was equivalent to a nuisance. As to these flights the court reasoned: If we accept, as we must upon established principles of the law of servitudes, the validity of the propositions that a noise can be a nuisance; that a nuisance can give rise to an easement; and that a noise coming straight down from above one’s land can ripen into a taking if it is persistent enough and aggravated enough, then logically the same kind and degree of interference with the use and enjoyment of one’s land can also be a taking even though the noise vector may come from some direction other than the perpendicular. [376 P.2d at 106.] There was a dissent in Thornburg which agreed with the majority opinion in Batten v. United States, supra. As to the second flight path, however, the court was unanimous. The second flight path took planes directly over the plaintiffs property at low altitudes, but in excess of 500 feet. The court, in reversing the trial court, held that these flights should have also been considered in determining if there had been a taking. Whatever virtue the establishment of a 500-foot. floor under the cruising flight of aircraft may have as a matter of public safety, there can be only one sound reason to make it a rule of the law of real property. That reason ought to be the knowledge * * * that flights above 500 feet do not disturb the ordinary, reasonable landowner. [376 P.2d at 109-110; emphasis supplied.] The dissenting Justices, while rejecting the majority’s position that an adjacent noise nuisance alone can constitute a taking of property, agreed with the majority that if the flights were in the superjacent airspace, even if above 500 feet, such flights could constitute a taking. It was felt by the minority that the Causby rule18 is a "proper rule to balance public and private interests arising from the abolishment of the common-law rule that ownership in land *259extended upward to the periphery of the universe * * *,” 376 P.2d at 111 (dissenting opinion), but that it does not preclude the possibility of a taking where the overflights are above the safe altitude of flight, namely, 500 feet AGL, if the evidence shows that, by reason of noise and vibration alone, there is serious interference in the owner’s use and enjoyment of the property. Although the bare presence of noise, without penetration of the superjacent airspace, cannot itself amount to a taking, an increase in noise alone, without any change in the nature of the physical invasion, has been held to constitute a further taking. In Avery v. United States, supra, the court held that the introduction of a larger, heavier, noisier aircraft can constitute a fifth amendment taking of an additional easement even though the noisier aircraft do not violate the boundaries of an earlier easement. The earlier easement in Avery had granted the Government the right to fly aircraft over the plaintiffs’ land at altitudes as low as 29 feet AGL. The easement was not limited on its face to any particular aircraft, yet the court found a further taking where the plaintiffs established additional loss due to the increase in the noise. Thus it is clear that noise and its impact are generally of primary importance in determining whether there has been a taking by aircraft overflights. In Lacey v. United States, supra, the property over which defendant’s aircraft flew was a large tract of agricultural land located in an uncongested rural area used principally for the grazing of cattle. Such property would be "clearly unacceptable” for such use if located within an AICUZ "Clear Zone,” or a "CNR 3” Zone as defined in the AICUZ studies received in evidence in the present case. The evidence in Lacey did not include an AICUZ study or classification19, but it did establish that the prescribed minimum altitude of aircraft flying over plaintiffs property in conducting FMLP operations was 450 feet A.GL during the period from 1958 to 1973 with single-engine (A4J and *260F-9) aircraft, and from 1972 to 1975 with twin-engine (T2C) aircraft.20 The trial judge concluded that the taking in that case first occurred "not later than 1960” and the action was, therefore, barred under the 6-year statute of limitations (28 U.S.C. § 2501). It was further found, as a fact, that at no time after 1960 did defendant operate its aircraft at altitudes lower than 450 feet AGL nor did it employ any appreciably noisier aircraft in its operations at the base. Thus, there was no "further” taking within the 6 years prior to filing the action due to increased noise or frequency of operations. The trial judge, in turning to the question of ownership of the Lacey property in and prior to the calendar year 1960, found that plaintiffs did not acquire the property until 1971, at the earliest. Thus, the taking had already occurred before plaintiffs acquired the property. Accordingly, plaintiffs in that case would not have been entitled to recover even if the statute of limitations had not been a bar. The real source of interference with plaintiffs’ use of their property in Lacey was not the altitude of the flights but the noise which "made it impossible or difficult to use the telephone in the residence, made conversation on the property impossible or difficult, greatly interfered with television reception in the residence, and interfered substantially with ranch operations (the noise from the aircraft drowned out attempts by the ranch operator to call cattle for feeding operations).” 219 Ct. Cl. at 558, 595 F.2d at 618. There was no evidence whatever that any damage, interference, or inconvenience was caused solely because the altitude of the flights was as low as 450 feet above ground level. It was the noise created by the overflights which interfered with full use of the property. The opinion concludes that it was as a result of the noise that "an avigation easement” had already been taken by the operation of noisy jet aircraft over plaintiffs’ property. *261The facts in the present case are distinguishable from the facts in Lacey in two material respects. At NALF-Orange Grove, training operations were conducted with aircraft which generated approximately the same noise (127 to 133 decibels at 50 feet altitude) throughout the whole period under consideration, even though the T2C was a twin-engine (2,950 pounds thrust per engine or 5,900 pounds of total thrust) and the F-9 and A4J were single-engine (7,250 pounds and 8,500 pounds thrust, respectively) aircraft. Also, the total number of operations of aircraft of these types did not increase appreciably during the 6-year period next preceding the filing of the petition. In the present case the twin-engine (33,000 total pounds of thrust) F-4 aircraft replaced the substantially less noisy single-engine (7,800 pounds thrust) A-4 aircraft, and the total number of FMLP operations increased substantially after plaintiff purchased the subject property in November 1973 (and less than 6 years prior to the filing date of the present petition). The clear implication in Lacey was that even if overflights of the F-9, A4J and T2C aircraft at less than 500 feet occurred more than 6 years prior to filing the petition, plaintiffs would have prevailed if "appreciably noisier” aircraft were introduced for the first time within the 6-year period prior to filing the petition. It follows, therefore, that the introduction of the full Marine Air Group of noisier F-4 aircraft into MCAS-Beaufort, after November 1973, created a new cause of action in the present case even though fewer and less noisy overflights were conducted at 600 feet AGL prior to plaintiffs acquisition of the property, regardless of whether the earlier flights had constituted a partial taking. The question thus raised is whether the 500-foot altitude is so critical a measure of the avigational servitude that liability can be avoided simply by flying noisier aircraft at an altitude of 501 feet. Minimum safe altitude and minimum noise levels are concerned with two different things.21 While safety may be measured in terms of altitude, a *262reasonable noise level cannot be measured solely in terms of altitude.22 The present case is a case, as the court foresaw in Aaron v. United States, 160 Ct. Cl. at 301, 311 F.2d at 801, in which "the unavoidable damage [reduction of the highest and best use] to a person’s property occasioned by [the noise created during] travel in the navigable air space [is] so severe as to amount to a practical destruction of it.” This is a case of first impression in which the court may consider the altitude of the flights over the property, but must give primary consideration to the effect of aircraft noise where the Government itself has adopted and published standards of compatability of use of the subjacent property. Since the subjacent property owner has suffered a diminution of the value of the property in this case, there has been a taking of an easement over and through the airspace superjacent the property of the plaintiff. It is abundantly clear that under the law established by Causby, Griggs, and Aaron a taking has occurred in this case. Identity of Plaintiff The caption in this case designates plaintiff as "Cloide C. Branning, d/b/a Pleasant Point Plantation, A Partnership.” The opening paragraph of the petition repeats, verbatim, the wording of the caption. Although paragraph 2 states that petitioner "resided on the premises located in Beaufort County, State of South Carolina,” and paragraph 8 alleges that petitioner has been deprived of "his” free and unmolested use of "his” property, the record clearly establishes that Cloide C. Branning, an individual, did not own the property in suit at the time the petition was filed. Therefore, to do justice as between Branning, individually, and the Pleasant Point Plantation partnership, the petition *263must be construed as having been filed in the name of the true owner, Pleasant Point Plantation, a partnership. The domicile (residence) of the partnership is alleged to be in South Carolina and the address of plaintiff (petitioner) is given at the end of the petition as "Cloide C. Branning, Pleasant Point Plantation, Star Route 5, Beaufort, South Carolina 29002.” Thus the partnership is deemed to have been organized and existing under the laws of the State of South Carolina. When David M. Pendley and H. Jack Pendley, Jr., sold their respective interests in the Pleasant Point Plantation partnership to Cloide C. Branning, the partnership was technically dissolved. However, the partnership had outstanding liabilities which were incurred before the two general partners sold their interests to Branning. Bran-ning, therefore, became the sole surviving partner for the purposes of winding up the affairs of the partnership. Notwithstanding the sale of the Pendleys’ interests in the partnership to Branning, record title to the property in suit was, at the time of filing the petition, and still was at the time of trial, in the name of Pleasant Point Plantation, a partnership. There is no evidence of record to show that Branning, individually, ever took title to the property from the partnership or any of the partners. Title went from Pleasant Point Plantation, Inc. (a South Carolina corporation) to Branning and the Pendleys, as individuals (jointly and severally) by deed executed on November 10, 1973. Thereafter, by deed executed November 28, 1973, Branning and the Pendleys, for a nominal consideration and in further consideration of "the formation of Pleasant Point Plantation, a Partnership,” conveyed the property in suit to "Pleasant Point Plantation, a Partnership, Its Successors and Assigns.” Under the circumstances, merger of all interest in the assets of the partnership in one individual dissolved the partnership de jure, but the partnership continued de facto for the purpose of winding up the affairs of the partnership, including the prosecution of this action on the alleged claim of the partnership as holder of record title to the property in suit. *264Since the value of the property right taken is to be determined as of the date of taking, determination of both the date of taking and value of the property right taken as of that date are reserved for further proceedings under Rule 131(c). CONCLUSION OF LAW For the foregoing reasons, the court concludes that a taking has occurred. The case is remanded to the trial division under Rule 131(c) for further proceedings. Such further proceedings will determine the date of the taking, the amount of recovery, and who will share in said recovery. The findings of fact have been submitted to the parties and with the exception of the "Ultimate Finding and Conclusion” are adopted by the court. We do not reprint the findings of fact here because the facts necessary to resolve this case are set forth in the report. The opinion and conclusion of law are submitted in accordance with Rule 134(h). Such "taking” has been referred to in reported cases variously as an "avigation easement” (by analogy to the sovereign’s right of navigational servitude in navigable waters of the sovereignty) and as an "easement of flight” (by analogy to easements taken by the sovereign in the airspace over land for public purposes). In addition to Morgan, other third-party plaintiffs (creditors of plaintiff) have appeared, but Morgan is the only third-party plaintiff who actively participated in the trial of the case or has presented post-trial submissions as a third-party plaintiff. FMLP operations are required before a pilot can be deemed "combat ready,” and thus qualified to fly carrier operations. The operations must be practiced both during the daytime and at night. Since a pilot is only deemed to be qualified for 3 months after flying FMLPs, an F-4 squadron will usually fly FMLPs just prior to being assigned to duty on a carrier. When FMLP operations are being conducted there can be as many as six aircraft in the air at once (up to four aircraft if the practice is at night). The planes make about 10 practice landings and loops and then must refuel. While one group of planes is refueling, another is in the air. The aircraft are spaced about 30 seconds apart. When flying FMLPs, the pilots keep the wing flaps down during the entire operation (in what is known as a "dirty” configuration) at 80-85 percent of full power. Since flying in a "dirty” configuration requires that more thrust be employed than would otherwise be needed, the noise is consequently much greater than if the plane was flying a normal pattern. Thus, during the weeks when FMLPs are being conducted, F-4 aircraft pass directly over the plaintiffs property, with over 80 percent of full throttle applied, every 30 seconds almost continuously throughout the morning, afternoon, and sometimes at night. This pattern is referred to in Lacey v. United States, 219 Ct. Cl. 551, 595 F.2d 614 (1979), as the "field carrier landing practice” pattern. The only difference between the pattern flown in Lacey (at the Naval Auxiliary Landing Field-Orange Grove, Texas) and that flown at MCAS-Beaufort is that the prescribed altitude for the pattern at NALF-Orange Grove was 450 feet AGL (above ground level), whereas the prescribed altitude over plaintiffs property in the present case was 600 feet AGL. "Clearly unacceptable: The noise exposure at the site is so severe that construction costs to make indoor environment acceptable for performance of activities would be prohibitive. (Residential areas: The outdoor environment would be intolerable for normal residential use).” (Emphasis supplied.) "Normally unacceptable: The noise exposure is significantly more severe so that unusual and costly building constructions are necessary to insure adequate performance of activities.” Beaufort is pronounced "Bu’fert” in South Carolina, whereas the name is pronounced "Bo1 fort” in North Carolina where a city of the same name is located. The AV-8, however, did not fly the same "racetrack” FMLP pattern over plaintiffs property since that aircraft operates on a vertical takeoff principle. The record establishes that much of the time one of the five F-4 squadrons (12 of the 60 planes) was on TDY (temporary duty) at one or another of the other stations in the United States. It also establishes that MAG-31 was not always at. full TO (table of organization) strength, either in terms of aircraft or pilots. The only logical assumption which can be made is that there was a desire to lower the altitude of the downwind leg to be only slightly above the level of an aircraft carrier deck above the water level without going below the 500-foot level prescribed by the Federal Aviation Administration as the safe level of flight of all aircraft over private property. The Composite Noise Rating is measured in PNdB. The CNR is a way to describe quantitatively the acoustic energy of sound as it relates to the subjective feelings of loudness, noisiness or annoyance that would be experienced by an observer. One of the six operational modifications which was accepted to be implemented with the AICUZ study was not actually carried out because of a perceived conflict with safety criteria. See, e.g., "Airport Noise Regulation: Burbank, Aaron and Air Transport” 8 Trans. L.J. 403 (1976) and "Current State of the Law in Aircraft Noise Pollution Control” 43 J. AirL. & Com. 799 (1977). The existing statutes and regulations as applied to the facts in Causby v. United States, 328 U.S. 256 (1946), were interpreted to mean that "the navigable airspace” began at 500 feet above Causby’s land. (There was no allowance, in that interpretation, for takeoffs or landings.) It is of interest to note that subsequently Congress defined "navigable waters” to mean "waters of the United States.” 33 U.S.C. § 1362(7) (1976). By further analogy, since owners of property adjacent to the navigable waters of the United States must not be made to suffer uncompensated damage such as that resulting from an abnormal wake caused by vessels plying the navigable waters, owners of property subjacent to the navigable airspace of the United States should not be made to suffer the damages caused by abnormal aircraft noise without just compensation especially where the flights by Government-owned aircraft directly and immediately interfere with the use and enjoyment of the land. Although this case is said to have been decided on a theory that a physical invasion is required for a taking, the compensable damage that was found to exist was not accompanied by a physical invasion, but the damage resulted from an overt act of defendant which caused the smoke and noise to be directed over plaintiffs property. Furthermore, there have been many cases in the Supreme Court, this court, and other Federal courts where the fifth amendment taking of land was found to have been effected without an actual physical invasion of the surface of that land. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) (a taking of the subjacent property); Drakes Bay Land Co. v. United States, 191 Ct. Cl. 389, 424 F.2d 574 (1970) (isolation of and denial of access to plaintiffs property). These cases were decided under the same legal framework of the present case. Other states have constitutions which grant broader relief to property owners than *258the Federal constitution; they provide right to compensation when property is taken or damaged. See, e.g., Martin v. Port of Seattle, 391 P.2d 540 (Wash. 1964). These other cases will not be further considered herein. As set forth on pp. 253-54, supra. It does not appear from the opinion or findings of fact in Lacey that an AICUZ study was ever made in connection with the Naval Auxiliary Landing Field in that case. The noise level of the A4J aircraft (introduced in 1969) was 133 decibels at 500 feet AGL and 110 decibels at 1,000 feet AGL, whereas the comparable values for the F-9 (flown from 1958 to 1969) were 131 decibels at 500 feet and 108 decibels at 1,000 feet. Thus, there was no "appreciable difference” in noise level between that created by the A4J and the F-9. The noise level of the T2C aircraft (introduced in 1972) was even lower, the values 127 decibels at 500 feet AGL and 104 decibels at 1,000 feet. It is noted that the Federal Aviation Administration has promulgated regulations regarding noise standards for aircraft which are wholly apart from flight regulations. See Title 14, C.F.R., Part 36 (1980). Gliders, for example, would not be a source of noise impact over a residential area, even if flown at altitudes of less than 500 feet AGL over such an area. However, flight of gliders over property at any altitude might constitute a substantial accident risk. Conversely, loud, annoying aircraft such as helicopters, repeatedly passing over a residential area at an altitude above 500 feet AGL, might well be a source of considerable noise impact and yet not create a substantial accident risk at any given point below.

2016-07-06 06:42:19.877123+00

Shannon

This comes to us as an appeal on questions of law from the Probate Court of Hamilton County. The facts, which were stipulated below, may be summarized thusly: Richard Ross Whiting died, testate, October 27, 1944, *Page 133 survived by his daughter, Josephine, who was his sole next of kin. In his will, executed September 18, 1944, Whiting, after other things, devised the residue of his estate to the Central Trust Company as trustee with directions to pay Josephine a sum certain monthly until age fifty and the entire net income thereafter. In Item IX of the will, Whiting provided: "When my daughter, Josephine Mary Whiting, reaches the age of fifty years, I will and direct that my said trustee shall pay out of my trust estate to my sister, Mabel Whiting, if living, the sum of $10,000.00 in cash and in case my daughter dies before she reaches the age of fifty years I will and direct that my said trustee shall pay to my said sister, Mabel Whiting, if living, the sum of $10,000.00 in cash upon the death of my daughter, Josephine Mary Whiting. "Should my daughter, Josephine Mary Whiting, die leaving issue surviving her, I will and direct that my said trustee shall use so much of the income of said trust estate as may, in its judgment be necessary, for the maintenance and support of such issue until they respectively attain the age of twenty-one years, and when such issue or the youngest of such surviving issue attains the age of twenty-one years I will and direct that my said trustee shall pay, disburse, convey and transfer all the rest, residue and remainder of my trust estate to the said issue of my daughter, surviving her death, share and share alike. "Upon the death of my daughter without issue or upon her having issue and such issue dies before reaching the age of twenty-one years, I will, direct and authorize my trustee, The Central Trust Company, to pay, disburse, convey and transfer all the rest and remainder of my said trust estate to my nephews and nieces then living, in equal shares, upon the youngest one of my said nephews and nieces reaching the age of twenty-one years." When he died, testator was also survived by four nephews and two nieces. He had had two brothers, both of whom predeceased testator, and a sister, born in 1879 and still living. Whiting's brother William left three sons, *Page 134 William Whiting and Carson Whiting, appellees here, and Richard Whiting, who died in 1958. Testator's brother Herbert left a son, Herbert, and two daughters, all of whom are the appellants here. Testator's daughter, Josephine, died married but without issue on January 17, 1967. The Central Trust Company, as trustee, filed its application thereafter in the Probate Court to distribute, in equal shares, the corpus of the trust to the five nephews and nieces who were alive on January 17, 1967 (the date of death of testator's daughter, Josephine). Exceptions were taken by the remarried widow and three children of Richard Whiting (the nephew of testator who predeceased Josephine), they contending that an undivided one-sixth interest in the trust estate vested in each nephew and niece on the death of the testator, subject to divestment only in the event Josephine Whiting should die having issue. The issue, then, is squarely put: does the language of the will, "Upon the death of my daughter without issue * * * I direct * * * my trustee * * * to pay * * * to my nephews and nieces then living, in equal shares, upon the youngest one of my said nephews and nieces reaching the age of twenty-one years," require division into five parts or into six parts? Conversely stated, the issue becomes: did the nephews of testator who predeceased Josephine have a vested interest, subject to divestment, upon the death of the testator? It is apparent that the trustee opined that the estate should be divided into fifths because no beneficiary had an interest vest until the death of the life tenant, Josephine; that is, that in order to share the beneficiary must have survived Josephine. Interestingly enough, the testimony taken below discloses that after the death of the testator (Richard Ross Whiting), Richard Whiting (who died in 1958), William Whiting and Carson Whiting, appellees here, entered into an agreement, drawn by the same attorney now representing *Page 135 the trustee, providing that if one of them should die before the time for distribution of their uncle's estate, leaving issue, the survivors would share their portions with the issue instead of having such children denied a share. Obviously, the precise problem here was foreseen and a plan laid to solve it to their satisfaction. Appellees urge that there is an apparent ambiguity in the will. We find none. This court is of the opinion that the rationale of Sinton v.Boyd, 19 Ohio St. 30, 2 Am. Rep. 369, and Hamilton, Exr., v.Pettifor, 165 Ohio St. 361, following the authority of theSinton case, controls the matter at bar. The membership of the class enumerated in the trust instrument had to be determined upon the death of the life tenant. In order to share, then, a nephew or niece must have been alive at the time that particular event occurred. The survivors of a predeceased nephew cannot take the share to which he would have been entitled had he survived. The testator could easily have so provided; to say now that he so intended is to write for him a new will. This we cannot do. The language appearing after the method of determining the class as set forth merely provides a time for distribution and does not introduce any ambiguity. Consequently, the questions posed above are answered. The estate is to be divided into five parts because the nephew of the testator who predeceased the life tenant did not have a vested interest upon the death of testator. The judgment of the Probate Court is reversed, the exceptions to the plan of distribution proposed by the trustee are overruled, and the Probate Court is ordered to distribute the remainder of the estate among the appellants and William H. Whiting and Carson R. Whiting, in equal shares, in harmony with this decision. Judgment reversed. LONG, P. J., and HILDEBRANT, J., concur. *Page 136

2016-07-06 06:42:19.910084+00

Corrigan

This is an action brought by plaintiff, Berea Bus Lines Company, to vacate, after term, a default judgment obtained against it by the defendants, Natalie and Charles Seminatore. In plaintiff's second amended petition, Section 2325.01 (G), Revised Code, was asserted as the statutory ground for vacating the judgment. Section 2325.01 (G), Revised Code, reads: *Page 32 "The Court of Common Pleas or the Court of Appeals may vacate or modify its own final order, judgment, or decree after the term at which it was made: "* * * "(G) For unavoidable casualty or misfortune, preventing the party from prosecuting or defending * * *." The allegations of this petition set forth facts which reveal that plaintiff purchased insurance from an insurance agent named Robert Kujanek. The insurance was designed to protect Berea Bus Lines from the type of claim filed by defendants in their original action. Although agent Kujanek delivered an allegedly valid insurance policy to plaintiff, he had, in fact, never notified the parent insurance company, and instead had simply converted the premiums for himself. Thus, Berea Bus Lines had no insurance. In January 1966, Natalie Seminatore, wife of Charles Seminatore, left her children at Midpark High School in Middleburg Heights, Ohio, and was exiting from the school when a collision occurred between her car and one of plaintiff's school buses. Defendants herein filed suit against plaintiff company on September 7, 1966, in the Common Pleas Court. On September 9, 1966, plaintiff was served with petition and summons in the action and immediately forwarded the suit papers to its insurance company agent, Kujanek. According to plaintiff's amended petition to vacate, plaintiff inquired of Kujanek about the status of the lawsuit on several occasions, and was assured by him as to its progress. On December 23, 1966, defendants secured a default judgment against plaintiff in the amount of $4,000. In March 1967, an attachment on the assets of the Berea Bus Lines found at the National City Bank of Cleveland in the amount of the judgment was secured. Immediately thereafter, on March 13, 1967, a petition to vacate the judgment was filed by counsel for plaintiff. A demurrer to plaintiff's second amended petition was sustained by the trial court and a motion to reconsider was denied. The appeal to this court followed. Appellant asserts one assignment of error: "The court below erred in sustaining a demurrer to *Page 33 the second amended petition on the ground that it did not state a cause of action for `unavoidable casualty or misfortune.'" In the opinion of this court, appellant's second amended petition did allege facts sufficient to state a cause of action under Section 2325.01 (G), Revised Code. It is well established in Ohio that the negligence, or incompetence, or wrong doing of an atterney, if clearly shown, will not be imputed to his client in an action to vacate a default judgment where it appears that the client has given all reasonable attention to the litigation.Andring v. Andring, 3 Ohio App. 2d 417, 211 N.E.2d 59 (1965);Lazarus v. Cleveland Household Supply Co., 23 Ohio App. 15,154 N.E. 343 (1915); Stine v. Springfield City Lines, Inc., 76 Ohio Law. Abs. 114, 145 N.E.2d 435 (1955); Gephart v. Black, 14 Ohio Law. Abs. 163 (1933); 32 Ohio Jurisprudence 2d 281 to 288, Judgments, Sections 587 to 595; 4 Ohio Jurisprudence 2d 518, Appellate Review, Section 1166. Is there a similarity between these cases and the case at bar? The Iowa Supreme Court, working with similar statutes, thought so. In Edgar v. Armored Carrier Corp., 256 Iowa 700,128 N.W.2d 922 (1964), the court held, on the authority of several attorney-client cases, that where a legal summons sent to the insurer by its insured is lost in the insured's office, the insurer, as agent for its insured, had a right to have the default judgment against the insured set aside. Appellees herein contend that the Berea Bus Lines should have avoided this casualty by checking with the home office of the insurance company. In effect, this argument demands that Berea Bus Lines should have uncovered Kujanek's fraud in order to establish a case of "unavoidable casualty or misfortune." Other courts have not required a party to go this far. For example, the Supreme Court of Iowa held in Hobbs v. Martin Marietta Co.,257 Iowa 124, 131 N.W.2d 772 (1964) that even though a defendant company failed to follow up on its law suit after sending the legal papers to its insurance company, it was still entitled to have the default judgment set aside when *Page 34 the facts revealed that the papers were lost in the insurance company's mail room. The court said, at page 131: "We are not prepared to hold that in the operation of such large business enterprises the law requires constant checking to see that papers sent through the regular channels are received and acted upon, nor do we think the failure to do so here amounted to carelessness within the meaning of our rule. To be careless and inattentive, as the terms are applied here, means to give the matter no care, no attention, approaching gross neglect or willful procrastination. * * *" See, also, Stehman v. Reichhold Chemicals, Inc., 57 Ill. App. 2d 40, 206 N.E.2d 299 (1965); Spencer v. American United CabAssn., 59 Ill. App. 2d 165, 208 N.E.2d 118 (1965); and cases cited in 87 A.L.R. 2d 870 (1961) with supplements. According to appellant's second amended petition, to which appellees demurred, Berea Bus Lines "on several occasions" inquired of Kujanek as to the status of the lawsuit and was assured by him as to its progress. Finally, the requirement that appellant allege a valid defense also was satisfied by the second amended petition to vacate where the defense was stated. It is our decision that appellant has met with an unavoidable casualty or misfortune as specified in Section 2325.01 (G), Revised Code, and that it should be accorded its day in court. The judgment is, therefore, reversed as contrary to law and the cause is remanded to the Court of Common Pleas, with instructions to grant defendant's petition to vacate and for further proceedings according to law. Judgment reversed. WHITE, P. J., and CANARY, J., concur. *Page 35

2016-07-06 06:42:20.227103+00

Wolff

OPINION Lawrence Kreuzer appeals from a domestic violence civil protection order (CPO) made after a full hearing. Karen Kreuzer, Mr. Kreuzer's former *Page 612 wife, had previously obtained an ex parte civil protection order which precipitated the full hearing. The trial court determined that the evidence established that Mr. Kreuzer had committed domestic violence by virtue of having committed the offense of menacing by stalking, as defined by R.C. 2903.211, by operation of R.C. 3113.31(A)(1)(b). Having so found, the court granted a protection order that prohibited Mr. Kreuzer from, inter alia, abusing Mrs. Kreuzer or coming within 100 yards of her. Menacing by stalking, as found by the trial court, consisted of Mr. Kreuzer's knowingly causing Mrs. Kreuzer to believe he would cause her mental distress by his engaging in a pattern of conduct. R.C.2903.211(A). Mr. Kreuzer appears pro se in this court. Mrs. Kreuzer has not made an appearance. Mr. Kreuzer advances two assignments of error, which we consider in reverse order. THE COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THAT APPELLANT KNOWINGLY CAUSED APPELLEE TO BELIEVE THAT HE WOULD CAUSE PHYSICAL HARM TO HER OR CAUSE MENTAL DISTRESS TO HER. The testimony from Mrs. and Mr. Kreuzer was mostly free of conflict. Mrs. Kreuzer testified that she applied for a CPO because Mr. Kreuzer had been picketing her home three to four times during a two-month period immediately prior to her seeking the CPO February 29, 2001. She stated that Mr. Kreuzer parked his car in her front yard (which was apparently permissible) and walked from property line to property line. She testified that he would picket for an hour to an hour and a half between 7:30 and 9:00 p.m., when it was dark. Mrs. Kreuzer stated that the picketing made her "very uncomfortable," and that when Mr. Kreuzer was picketing, she and the parties' eighteen-year-old daughter were prisoners in their own home. She stated that she was afraid to exit or enter her driveway when Mr. Kreuzer was present, and Mr. Kreuzer confirmed by his testimony that whenever he observed Mrs. Kreuzer entering or exiting her driveway she was escorted by a third party. Mrs. Kreuzer testified that Mr. Kreuzer had not threatened her, but that she was nevertheless afraid to go outside when he was present because "he's capable of anything." She testified that she's been abused by Mr. Kreuzer (referring to an incident the day after the parties' divorce in 1985 of which Mr. Kreuzer was acquitted), that Mr. Kreuzer has been in her home uninvited (based on a statement by her son, who was not a witness), and that she was "scared to death" simply being in the same courtroom with him. Mrs. Kreuzer testified that she lived a couple of streets off "the main road" on "the last street toward the woods," and that her street had no street lights or sidewalks. She also stated that her former husband had picketed her *Page 613 home from time to time for several years, once almost every day for eleven months. Mr. Kreuzer admitted the picketing activity, and he acknowledged that Mrs. Kreuzer always called the sheriff who related to him her desire that he leave. He said he pickets his former wife's home because he has had little contact with the parties' daughter. He said his picket sign says "children have visitation rights, too" and contains no vulgar, inciting, or threatening words. Mrs. Kreuzer said she couldn't read the sign because of the darkness. Although he denied being in Mrs. Kreuzer's home, saying his detailed information about her home came from his mother whom Mrs. Kreuzer had told about her home, he did acknowledge entering the home of the trial judge who handled the case in 1985. Mr. Kreuzer contends in his second assignment that there is no proof that he knowingly caused Mrs. Kreuzer to believe he would cause her mental distress. Mental distress is defined as "any mental illness or condition that involves some temporary, substantial incapacity or mental illness or condition that would normally require psychiatric treatment." R.C. 2903.211(D)(2). "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." R.C. 2901.22(B). The trial court found Mr. Kreuzer had knowingly caused Mrs. Kreuzer to believe he would cause mental distress to her. Mr. Kreuzer does not argue that the evidence failed to show he caused his former wife to believe he would cause her mental distress. Rather, he argues that the evidence failed to show he acted knowingly. Culpable mental states may be shown by circumstantial as well as direct evidence. Mrs. Kreuzer testified that, in effect, she was seized by paralyzing fear when Mr. Kreuzer was outside her home, picketing in the dark. The testimony established, and Mr. Kreuzer concedes, that he has been picketing Mrs. Kreuzer's home from time to time since 1987, at one time almost every day for eleven months. Based on the testimony relating to Mr. Kreuzer's picketing activity over the years, Mr. Kreuzer's admitted knowledge that Mrs. Kreuzer was disturbed and frightened by this activity, and the evidence that he had entered the trial judge's home in 1985, the trial court could have reasonably inferred that Mr. Kreuzer was aware that his conduct would probably cause Mrs. Kreuzer to believe he would cause her mental distress. The second assignment is overruled. THE COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THAT APPELLANT'S CONDUCT WAS IN VIOLATION OF ORC 2903.211 WHERE THE CONDUCT IS NOT SUPPORTED BY THE QUANTUM OF EVIDENCE REQUIRED BY LAW. *Page 614 Menacing by stalking requires proof of a "pattern of conduct" that causes another to believe the offender will cause physical harm or mental distress. R.C. 2903.21(A). "Pattern of conduct" means two or more actions or incidents closely related in time. R.C. 2903.211(D)(1). Mr. Kreuzer contends that the three or four incidents of picketing cannot satisfy the pattern of conduct requirement because peaceful picketing is protected speech under the first amendment. In disposing of a constitutional challenge to R.C. 2903.211, the Court of Appeals for Hamilton County has stated: "We do not believe it is fairly within the protection of the First Amendment's guarantee of free speech to knowingly cause another to believe one will cause physical harm or mental distress to him or her by engaging in two or more actions or incidents closely related in time."State v. Benner (1994), 96 Ohio App. 3d 327, 329-30. Although Mr. Kreuzer's picketing activities might qualify as protected speech in another place at another time, we do not think they qualify as protected speech on the facts of this case. Mr. Kreuzer targeted his former wife's home, located on an unlit back street, after dark. The record discloses no audience for his message, which, in any event, was not readable in the darkness. Mr. Kreuzer's behavior served no other purpose than to torment his former wife and the parties' daughter. The first assignment is overruled. The judgment will be affirmed. GRADY, J. and YOUNG, J., concur. *Page 615

2016-07-06 06:42:20.262173+00

Troop

Plaintiff in the trial court, Charles Sherrod, recovered the sum of $2,500 against the defendant, Agnes Landon, as administratrix of the estate of Grace Mansbarger, deceased, by way of judgment entered by the court upon a jury verdict. The recovery was allowed for services claimed to have been rendered by the plaintiff to the defendant's decedent during her lifetime. It is from the judgment of the trial court that this appeal is taken on questions of law. Pleadings and testimony, some of it agreed by counsel to be accurate, indicate that Grace Mansbarger died January 3, 1961, having been preceded in death by her husband, known throughout the record as "Hob." During her lifetime, Grace Mansbarger owned real estate fronting upon Buckeye Lake. Agnes Landon was appointed executrix of the estate of Grace *Page 255 Mansbarger, on February 28, 1961, and the plaintiff filed a claim in writing, for services rendered the decedent, within four months of the appointment of the executrix, on May 17, 1961, which claim was formally rejected May 19, 1961. The controversial issues arise from the allegations in plaintiff's petition, paragraphs numbered 2 and 3. Briefly, plaintiff alleges that he rendered services from time to time, at the request of Grace Mansbarger, or with her knowledge and acquiescence, such services as performed were work and labor in construction and maintenance of her real estate covering a period including 1955 to the date of her death, the reasonable value of which was $5,412. An answer on behalf of defendant denying these basic allegations made up the issues to be tried. Four errors are assigned as the basis of defendant's appeal. The first error upon which defendant relies is with respect to a ruling of the trial court upon defendant's motion to require the plaintiff to make his petition definite and certain. If the trial court had sustained rather than overruled defendant's motion, the haphazard development of testimony at the time of trial might have been avoided, but be that as it may, a trial court has a wide range of discretion in ruling upon motions and it appears that the rulings in the instant case were within the purview of that discretion. The first assignment of error is not well taken. Second, appellant urges that the trial court erred in admitting, over objection, evidence of the provisions of decedent's will. The question to which objection was made is as follows: "What was said in the reading of the will?" And the answer follows: "The reading of the will stated that the property and — for the whole estate would be left to Agnes Landon, providing that she paid all of her debts and paid all of her bills. That's stated right in the will." Counsel then moved that the answer be stricken and his objection was overruled. Case law and text material dealing with the admissibility of evidence of this kind is extremely meager. General propositions are available, but a case involving the very limited question concerning the propriety of such a reference to an estate, as contained *Page 256 in the quoted answer, has not been revealed by research or suggested by citations of counsel. An extremely broad suggestion is made by the text writers in 20 American Jurisprudence 250, Section 259, to the effect that rich and poor stand alike in courts of justice and that neither the wealth of one nor the poverty of the other is to be permitted to affect the administration of the law. The annotation in 65 A.L.R. 2d 945, contains material moving much more directly toward the appraisal of the bit of testimony before us here. The title of the section is suggestive, "Admissibility of evidence of value or extent of decedent's estate in action against estate for reasonable value of services furnished decedent," and the content approves the general rule excluding evidence of the pecuniary worth of a decedent in an action such as this. The exception appears in the cases in which the service performed related to the management of the property in the estate during the life of the decedent. The admission into evidence of testimony concerning the extent of the property in the estate is regarded as justifiable in such cases. Application of the general rule excluding testimony concerning the value or extent of an estate would seem to be accepted by Ohio courts. The basic proposition appears inSaffin v. Thomas, Exr. (1894), 8 Cow. C. 253, as follows: "2. In an action by a plaintiff to recover, on a quantum meruit the value of services rendered by him to the defendant, it would seem that evidence of the pecuniary condition of the defendant, and that he was a very wealthy man, is not competent. The value of the services, as a general rule, is to be ascertained and fixed by the usual price paid for like services at the time and place of performance." In the instant case the objectionable testimony is certainly not identical to that described in the first part of the quoted syllabus. There is, however, no escape from the limiting effect of the proposition contained in the last sentence. Plaintiff herein claimed to have rendered services upon the real estate of the decedent and so alleged in his petition. Such an allegation was necessary. Testimony directed to the quality and quantity of the services rendered was clearly admissible, but any testimony beyond that area of unmistakable relevancy moves *Page 257 into a gray area of doubtful pertinency. Any testimony concerning the extent of the property in the estate, and to the beneficiary of the "whole" of it, under the rule, produces an inescapable emphasis that could well have presented to the jury a concept of a case of the plaintiff, a poor working man, as opposed to the recipient of a windfall, instead of an issue arising out of a claim for the reasonable value of the services performed for which the decedent, at least by implication, agreed to pay and from which services she benefited. Following the rigidity reflected in the general propositions reviewed, it is necessary to conclude that the reference to the will of the decedent and the beneficiary under it, as above quoted, was designed to influence the jury and had a prejudicial effect, and was, therefore, inadmissible. Defendant's second assignment of error is well taken. (See, also, 58 Ohio Jurisprudence 2d 56, part of Section 47, text material and footnotes.) The third assignment of error amounts to a request to review the weight of the evidence since it suggests that the court erred in overruling defendant's motion for a directed verdict made at the conclusion of all the evidence. While not entirely necessary, since the second assignment of error was sustained, some purpose might be served in such a survey. 58 Ohio Jurisprudence 2d 52, Section 46, suggests the burden of proof resting upon a plaintiff in a quasi-contractual or quantum meruit action. Briefly, the points to be sustained are: 1. Sufficient facts adduced from which a promise, implied in fact or law, to pay for the services may be found. 2. The character and extent of the services. 3. The reasonableness of the charges. 4. Show not only that the rate charged was reasonable but also that the time consumed was reasonable. There seems to be evidence to prove that there was, at least, a pseudo promise to pay. Although characterized by vagueness, it appears from the testimony that Grace Mansbarger had said on several occasions that the plaintiff would be taken care of. It appears that the services performed consisted largely of labor with a touch of some skill here and there so that the character of the labor might be assumed, but a conclusion by the jury as to the extent of the work done would be *Page 258 unadulterated surmise. Even the testimony of plaintiff's witnesses consists of the vaguest of generalities. For example, Lee Sherrod, son of the plaintiff, said he saw his father at work "a lot of times" and that he "seen him working on the docks," but added, "exactly the dates * * * I'm not familiar." Thelma Williams said, "I seen him do quite a few jobs there." Friedlinghaus said, "He was working on a roof of one of the cottages over there." And then he adds that he left to go fishing and when they returned "he was still working." Not a hint as to the number of hours involved appears. Whether the fishing, in the interval between observations of the plaintiff at work, consumed fifteen minutes, all day, or a week is not suggested. From the testimony contained in the record, the extent of the services could only be concluded by the jury from the wildest of guesses. All the jury knew was that over a period of approximately six years service was rendered. Nothing appears of record as to the rate charged or the hours worked. It appears in the record that an attempt was made to introduce evidence, through testimony of the plaintiff, as to a rate and the estimated hours spent, but objection was made by opposing counsel. It seems that the objection was sustained because counsel then proffered for the record an answer the plaintiff would have made indicating a rate charged of $2 an hour and the amount of time he estimated had been spent, including transportation to and from Columbus. These facts are not in the record and were not before the jury. Evidence as to the reasonableness of the $2-an-hour rate might have been unnecessary if it is presumed the work performed was of the type within the range of experience of the jurors. (Ortman, Exr., v.Ortman [1934], 17 Ohio Law. Abs. 525.) The task is for the jury most commonly, however, where the labor is that of the domestic variety. (Hossler, Exr., v. Trump [1900], 62 Ohio St. 139.) It is possible that if the services involve an element of skill a different burden is present that the plaintiff must carry. 58 Ohio Jurisprudence 2d 59, Section 49, and footnote 6. But a calculation is impossible if there is no evidence as to time. Without evidence as to time, and an assocated rate, before them, the jury could only guess. In the Hossler case, supra, at *Page 259 page 140, is an example of a reasonable method of presenting a claim based upon the common counts. This case contains evidence comparable to that which must have been in the record before this court in Curry v. Bd. ofCommrs. of Franklin County (1939), 135 Ohio St. 435. The Supreme Court said that the Hossler case, supra, provided the law for the case, although the case before them was a negligence action, and added, at page 437: "* * * but unfortunately the record contains no evidence whatsoever as to the extent of the services performed by the plaintiff's wife. * * *" And there follows a quotation of the observation of this court, as follows: "* * * `there was the very general statement that she took care of the chickens, but the evidence is silent as to whether it was two or two hundred. There is nothing at all as to the age or kind or what amount of attention was given; the same is true as to the garden. The only statement in the evidence is she helped in the gardening, but no other details. She also helped with the milking. There is no evidence as to the number of cows or how many she milked. Under this state of the record the jury could no nothing more than guess.'" This jury had no evidence before it as to rate or time. The other evidence before it was about as definite as that in theCurry case, supra, and the observations of this court in that case are equally appropriate here. Defendant's third assignment of error is well taken. It is doubtful if the fourth error assigned could be regarded as prejudicial in view of other directions contained in the charge, and it is, therefore, overruled. For other reasons indicated herein, the judgment of the trial court is reversed and the cause remanded for further proceeding according to law. Judgment reversed. DUFFY, P. J., and DUFFEY, J., concur. *Page 260

2016-07-06 06:42:20.324423+00

Hildebrant

The Probate Court certified an appeal in a county road case to the Common Pleas Court. That court considered that Chapter 2505 of the Revised Code headed "Procedure on Appeals," a general chapter, and Chapter 5563 of the Revised Code headed "Appeals in County Road Cases," a specific chapter, could be construed together and dismissed the road appeal for the reason that the notice of appeal filed in the Probate Court was not filed within the time limit of ten days *Page 304 fixed by Section 2505.07, a general statute, and ignored the specific statutes on road appeals set out in Chapter 5563. The appeal is here on questions of law. After two continuances of the hearing on claims for compensation and damages originally set on February 5, 1964, during which the matter was considered, the Board of County Commissioners, on March 11, 1964, made an award of compensation and damages to certain ones, including this appellant, and fixed a bond of $100, with surety approved by the County Auditor in event of appeal from such awards. On the same day, appellant filed written notice of appeal in the words and figures following: "Board of County Commissioners, Hamilton County, Ohio "In re: Establishment of Plainfield Road No. 273, Sycamore Township Hamilton County, Ohio "Notice of Appeal By Frank L. Showalter. "Now comes Frank L. Showalter and gives notice of his intention to appeal to the Probate Court of Hamilton County, Ohio from the final order of the Board of Commissioners of Hamilton County, Ohio, with respect to the improvement of Plainfield Road, made by them on the 11th day of March, 1964. "Said appeal is from the determination of said Board of County Commissioners regarding: "(A) The compensation for land appropriated "(B) The damages allowed to property affected by the improvement "(C) The order establishing the proposed improvement. "Executed at Cincinnati, Ohio, this 11th day of March, 1964. /s/ Frank L. Showalter 2100 Losantiville Road Cincinnati 37, Ohio." Appellant then filed within time the $100 bond approved by the auditor. The Board of County Commissioners took no action whatsoever responsive to the notice of appeal filed with it, and on March 23, 1964, appellant filed in the Probate Court a document executed on March 21, 1964, headed "Notice of Appeal of Frank L. Showalter; In re Establishment of Plainfield Road No. 273," together with a praecipe to the Clerk of the Board of *Page 305 County Commissioners for the original papers and transcript of proceedings, and a praecipe to the Clerk of the Probate Court to serve a copy of such notice on the defendants. Thereafter, on March 26, 1964, the Clerk of the Board of County Commissioners filed with the Probate Court the transcript of the proceedings of the Board of County Commissioners contemplated by the statutes. On April 1, 1964, the cause was certified to the Common Pleas Court with praecipe to the clerk to lodge the transcript there. Section 5563.02 of theRevised Code, a specific statute providing for appeal from the Board of County Commissioners in road improvement proceedings, provides in part: "Any person, firm, or corporation desiring to appeal from the final order or judgment of the board upon any such questions, shall, at the final hearing upon matters of compensation or damages, give notice in writing of an intention to appeal, specifying therein the matters to be appealed from." Such section further provides: "The board shall fix the amount of the bond to be given by the appellant, which amount shall be reasonable, and cause an entry thereof to be made upon its journal. The appellant, within ten days thereafter, shall file with the county auditor a bond in the amount so fixed, with sureties to be approved by the county auditor. * * *" Specific statute Section 5563.03 then requires the board to act, stating: "Within ten days after the filing of an appeal bond or the making of the journal entry as provided by Section 5563.02 of the Revised Code, the board of county commissioners shall transmit to the Probate Court or to the Common Pleas Court the original papers in the road improvement proceedings, and a certified transcript of the record of the board of all proceedings in connection therewith. Upon receipt thereof the court shall docket the cause, and the appellants shall be designated as plaintiffs and the board and other parties in interest as defendants." Appellants followed the provisions of Section 5563.02, Revised Code, to the letter, but the Board of County Commissioners failed to function within the required ten days in compliance with Section 5563.03, Revised Code. At the next court day after the ten-day period during which *Page 306 the Board of County Commissioners failed to function, appellant filed in the appellate tribunal, in this instance the Probate Court, his document headed "Notice of Appeal" as set forth above. Provision for the filing of such a notice with the appellate tribunal is nowhere to be found in the statutes, and it was and is a completely superfluous document filed out of time under the chapter relating to general appeals and completely vulnerable to motion to strike from the files. However, its filing prodded the delinquent Board of County Commissioners into complying with Section 5563.03, Revised Code, as it was already required to do. Upon that compliance the appeal was perfected upon being docketed by the court designating appellant as plaintiff and the board et al. as defendants. Therefore, the Court of Common Pleas was in error in attempting to construe the general chapter on appeals with the specific chapter on road appeals under the circumstances of this case. The judgment is reversed and the cause remanded for further proceedings according to law. Judgment reversed. HOVER, J., concurs. LONG, J., not participating. *Page 307

2016-07-06 06:42:20.356039+00

Young

The appellant, Bobby Wright, appeals from an order of the Montgomery County Court of Common Pleas, Juvenile Division, denying her motion to reopen custody cases of her two children, and to recover legal custody of those children from their paternal grandmother. Both these custody cases have been consolidated for purposes of appeal. I The appellant is the natural mother of Donesha Wright, born August 24, 1978, and of Dawn Wright, born November 4, 1975. Montgomery County Children Services filed a complaint of dependency for the two children with the Montgomery County Juvenile Court on February 27, 1989. The complaint alleged that it was in the best interests of Dawn and Donesha that they be placed temporarily with the Montgomery County Children Services Board because neither the appellant nor her husband was able to care for the children properly. Donesha and Dawn were subsequently adjudged dependent pursuant to R.C. 2151.04, and were committed to the temporary custody of the Montgomery County Children Services Board on April 14, 1989. This followed a determination that their mother was unable to care for them due to mental problems for which she was only beginning to undergo counseling, and that their father was likewise unable to properly care for them. Neither of the parents was employed at the time, so no child support from either of them was ordered. Legal custody of Donesha and Dawn was granted to their paternal grandmother, Ruth H. Anderson, on June 6, 1989. The court noted that the father was willing to give up legal custody of the children, and the appellant had not followed through with her counseling and treatment. The appellant continued to have some visitation rights. On July 31, 1990, the appellant moved to reopen the case and change the custody of Donesha and Dawn from their grandmother Ruth Anderson to herself. The appellant maintains that her circumstances had improved considerably since 1989. She had found adequate housing and made substantial progress in dealing with her mental illness and drug abuse. She had begun a course of study in early childhood development at Sinclair College and found work at the Sinclair Daycare Center. She had maintained contact with her children over the previous year and averred that her children wished to be reunited with her. *Page 541 After a hearing before a referee, the appellant's motion to reopen and to change custody was denied by the Juvenile Court March 11, 1992. From this denial, the mother appeals. Appellant assigns three errors, alleging that the trial court did not apply the proper standard of proof in considering her motion to reopen the case and to change custody, that the court failed to follow proper juvenile procedure in denying her motion, and that the appellant received ineffective assistance of counsel when her trial counsel allowed the court to determine the matter of custody without a formal hearing, and to proceed on an agreed entry that was in fact not agreed upon by the appellant. The record in this case is incomplete. The appellee has filed no brief in this appeal. Most unfortunately, there is no transcript of the hearing on the motion to change custody available, and the referee has prepared no report. The entry and order do not refer to any findings of fact on which the decision denying the appellant's motion was based. App.R. 18(C) provides that "[i]f an appellee fails to file his brief within the time provided by this rule * * * in determining the appeal, the court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action." Guided by this rule, we will next consider the appellant's assignments of error, taking the second assignment first. II "Assignment Two: "The trial court erred in awarding legal custody [of] appellant-mother's minor children to the paternal grandmother because the state did not follow the statutorily required procedural steps in violation of appellant's constitutional right to due process under the Fourteenth Amendment of theUnited States Constitution and Article I Section 10 of theOhio State Constitution." (Emphasis sic.) In this assignment of error, the appellant argues that the court's failure to prepare and to serve a referee's report after the change-of-custody hearing vitiated that hearing. We agree. The powers and duties of juvenile court referees are laid out in Juv.R. 40. Juv.R. 40(D)(1) provides, "The referee shall prepare a report upon the matters submitted by the order of reference or otherwise. The referee shall file the report with the judge and forthwith provide copies to the parties. The report shall set forth the findings of the referee upon the case submitted, together with *Page 542 a recommendation as to the judgment or order to be made." None of these mandates were carried out in this case. The Ohio Supreme Court has held that a failure to make a referee's report, where a referee is required by statute to make one, will render the ensuing judgment voidable on the timely objection of a party. See State ex rel. Lesher v. Kainrad (1981), 65 Ohio St. 2d 68, 71, 19 O.O.3d 261, 263,417 N.E.2d 1382, 1384. Lesher construed Civ.R. 53, on which Juv.R. 40(D) is patterned. In re Swain (1991), 68 Ohio App. 3d 737,589 N.E.2d 483. A litigant must be given the opportunity to object to the referee's findings of fact, and the appellant in this case was never given that opportunity. See Erb v. Erb (1989), 65 Ohio App. 3d 507, 584 N.E.2d 807; and Juv.R. 40(D)(2). Moreover, a referee must prepare a written report that lists the findings of fact underlying his recommendation so that a trial judge can perform an independent analysis of that recommendation. Juv.R. 40(D)(5), in part, states, "The referee's findings of fact must be sufficient for the court to make an independent analysis of the issues and to apply appropriate rules of law in reaching a judgment order." Only after this is done is it proper for the judge to act on the referee's recommendation. Taylor v. Smith (1984), 22 Ohio App. 3d 38, 22 OBR 115, 488 N.E.2d 1253; In re Swain, supra, 68 Ohio App.3d at 742,589 N.E.2d at 485. In this case, there were no written findings in the record on which the trial judge could base an independent analysis of the record. There is, consequently, no evidence that an independent analysis was made. For this reason, as well as the fact that the litigant was never given an opportunity to object to the referee's findings of fact, the referee's failure to prepare a report was error, and was prejudicial to the appellant. The appellant also argues that the hearing below was vitiated by the fact that no transcript was made. It is clear, however, from a reading of R.C. 2151.35(A) that the court was not absolutely required to make a transcript of oral proceedings, since this was not a matter determining permanent custody, but only a motion to change legal custody. In cases not involving permanent custody, the juvenile court is required to make a transcript of oral proceedings on the request of a party. See, also, Juv.R. 37(A). Appellant does not argue, and the record does not show, that the court refused her request for a transcript of the motion hearing. Thus, we find no error in the trial court's failure to make a transcript of the oral hearing. *Page 543 However, because the referee failed to prepare and file a written referee's report detailing the findings of fact on which the referee's recommendation was based, the entry and order of March 11, 1992 is void. The appellant's second assignment of error is sustained. III "Assignment One: "The juvenile court erred in denying appellant-mother custody of her minor children because the state did not meet the requisite burden of proof in violation of appellant's constitutional right to due process under the FourteenthAmendment of the United States Constitution and Article I Section10 of the Ohio State Constitution." (Emphasis sic.) This assignment of error requires a review of the case on the merits. Because the record as it stands is insufficient to allow proper appellate review at this time, we will not reach the issues in this assignment of error. IV "Assignment Three: "The trial court erred and the appellant-mother received ineffective assistance of counsel when trial counsel allowed legal custody of the children to be awarded to the paternal grandmother without formal hearings and when trial counsel allowed the final order in the case to be erroneously labelled an agreed entry in violation of appellant's constitutional right to due process under the Fourteenth Amendment of the United StatesConstitution and Article I Section 10 of the Ohio StateConstitution." (Emphasis sic.) Because we have sustained the appellant's second assignment of error, this assignment of error is rendered moot. We reverse the judgment of the trial court and remand the cause for a new hearing, complete with a referee's report, to be held within sixty days of the date this decision was rendered. Judgment reversedand cause remanded. BROGAN and WOLFF, JJ., concur. *Page 544

2016-07-06 06:42:20.393962+00

Richards

This action is one brought for specific performance, and resulted in a decree for the defendant, Adelbert L. Spitzer, from which the plaintiff, James T. McMahon, has taken an appeal to this court. In August, 1927, the plaintiff was the owner of a portion of lots numbered 56 and 57 in the city of Toledo, lying east of the Maumee river, and he placed the property for sale with a realty company in that city. About August 20, 1927, Milton J. Kane, a representative of that company, called on the defendant and offered to sell him the lots at the price of $30,000. They had some discussion regarding the property, and late in August went over to East Toledo and examined it. After their return the defendant wrote a letter, dated August 31, 1927, to the real estate company having the lots for sale, making an offer of $27,000 therefor, the letter being as follows: "Gentlemen: I have been talking with your representative about buying a lot at the corner of Starr avenue and Platt street, East Toledo. "This lot is now occupied by the Johnson Oil Refining Company, and he tells me that they have a ten-year lease on this lot for which they are to pay $159.17 per month for the first five years, $164.17 per month for the next two years and $174.17 per month for the next three years. He tells me further that the taxes on this property for the last year have been only $200.00, and on the strength of this, I will give $27,000.00 cash when an abstract is furnished me, showing the property is clear and free from all incumbrances. The abstract *Page 46 to be entirely satisfactory to my attorneys, showing a clear and undisputed title. "This offer is good until 12 o'clock noon, Saturday, September 3, 1927. "The lease is to be also approved by my attorneys and in accordance with the above statement. "Respectfully yours, A.L. Spitzer." The proposition as made by the defendant was accepted in writing on September 1, 1927, by the plaintiff, upon the terms stated in the written offer. On September 2, 1927, the defendant wrote to the realty company, declining to complete the purchase, his letter being in the language following: "Dear Sirs: I am writing to confirm the conversation I just had with your representative in regard to the lot at Starr avenue and Platt street which I have been contemplating purchasing. "You will remember that I made my offer on this lot with the distinct understanding that the Johnson Oil Refining Company were paying $159.17 as rental per month for the first five years and $164.17 per month for the next two years and $174.17 per month for the last three years. I now find that the lease which you submitted to me shows that they are only paying $125.00 rental per month for the first five years and $140.00 per month for the next two years and $150.00 per month for the last three years, and I therefore would not care to buy the property at the price which we agreed upon. "The papers which you left with me and my attorney I will hold subject to your order. "Yours very truly, A.L. Spitzer." It appears from the evidence in this case that the lots were leased as vacant property in March, 1927, *Page 47 to the Johnson Oil Refining Company, for the term of ten years at a rental of $135 per month, payable monthly in advance during the first five years of term, $140 per month during the sixth and seventh years of the term, and $150 per month during the last three years of the term. By a rider attached to the lease the lessor agreed to expend not exceeding $3,500 for improvements upon the premises at the direction of the lessee, in consideration of which the lessee was to pay the lessor, in addition to the rental named in the lease, interest upon the amount expended on improvements, at the rate of 8 per cent. per annum, payable monthly. Under the terms of the rider so attached to the lease, a gas filling station was erected on the lots, and completed prior to the time the defendant and the real estate agent went over to view the property. The defendant contends that the lots were represented to him by the plaintiff's agent to be vacant property and to be under lease to the Johnson Oil Refining Company for a ten-year period at the rental recited in his offer of August 31, and that the rental was for the lots only, and no part was for any building or structure thereon, and that he relied upon these representations, and made his offer of $27,000 for the property by reason thereof. The plaintiff denies that any such representations were made by his agent. The evidence has had the careful consideration of this court and from this evidence the court is convinced that the property was represented to the defendant by plaintiff's agent to be vacant and that the amount represented by him to defendant as rental was not the rent named in the lease, but was that *Page 48 rent, plus 8 per cent. interest on the amount advanced by plaintiff for the purpose of erecting a gas filling station on the lots. Although the gas station had been erected before Kane and the defendant inspected the property, the former expressed surprise that they had it erected, and, when Spitzer inquired if the oil company had the right to remove it at the expiration of the lease, Kane replied that he did not know. The statements made by Kane and the circumstances show that the defendant believed and was justified in believing that the oil company had erected the station. The fact that a tenant is in possession of property offered for sale does not remove it from the realm of those things about which false representations may be made. As appears from the written offer made by the defendant, the abstract was to be satisfactory to his attorneys and the lease was also to be approved by his attorneys. On or immediately after September 1, 1927, the papers were received by the attorney for the defendant and he objected to examining the abstract or opinion of title until it had been brought down to date, but called the attention of plaintiff's agent to the fact that the lease was not properly acknowledged by the Johnson Oil Refining Company, and that he was not satisfied with the papers, in that the rental was specified in the lease and the provisions for interest at 8 per cent. on the improvements were attached as a rider thereto. Shortly thereafter the plaintiff procured a new lease with the Johnson Oil Refining Company with a proper acknowledgment, and having the entire amounts to be paid stated in the lease as rent. The attorney for the defendant advised him that *Page 49 the lease was not in accordance with the contract between the parties, and as soon as the attorney procured a copy of the lease, and examined it in detail, he advised his client that under the lease he would have to assume all fire hazards of the building and make certain repairs, and if the building was knocked down, or burned down, or blown down, or damaged, he would have to repair it, and that under certain conditions if the building was not repaired in a certain time that fact would automatically cancel the lease. The lease itself contains a provision that, if the premises should be damaged by fire, flood, storm, or other causes, so as to be unfit for occupancy, the lessor should have the option of repairing the damage, if it could be repaired within 90 days, and that the rent should cease from the time of the occurrence of the damage and not be again payable until the repairs should be completed. It is true that the new lease procured by the plaintiff with the Johnson Oil Refining Company was properly acknowledged, and had the entire payments inserted as rent, but this lease was not brought to the attention of the defendant until the 9th or 10th of September, 1927, long after the time when he had given notice of the repudiation of the contract, and the new lease contains the same provision imposing on the owner the responsibility of maintaining or reconstructing the building in case of destruction and that if this was not done the lease would terminate. We think it clear from the evidence in this case that the defendant's offer of $27,000 was made by reason of representations of plaintiff's agent regarding the property and the lease thereon, and *Page 50 these representations were not justified by the facts, and although the plaintiff did not himself have knowledge of such representations, yet, in seeking the benefit of the contract made by his agent, he is bound by the representations so made. Mulvey v. King, 39 Ohio St. 491. The offer made by the defendant and accepted by the plaintiff included as one of its conditions a provision that the abstract should be to the satisfaction of defendant's attorneys, and that the lease should also have their approval. The attorneys, acting in good faith and on sufficient cause, declined to approve the abstract or opinion of title, and declined to approve the lease, and their decision was final. For the reasons given, the petition will be dismissed and a decree entered for the defendant. Petition dismissed and decree for defendant. WILLIAMS and LLOYD, JJ., concur. *Page 51

2016-07-06 06:42:20.428577+00

Cacioppo

This is an appeal from the trial court's dismissal of three charges against a juvenile, now facing prosecution as an adult. The state concedes that one count was properly dismissed because the juvenile was previously adjudicated delinquent on that count. The state claims error in granting dismissal of two counts and asserts that jeopardy does not attach under Juv.R. 29(B) because that phase of an adjudicatory hearing is similar to a criminal arraignment. *Page 722 This court finds the state's argument does not apply to this case and agrees with the trial court's well-reasoned opinion. Four complaints which arose out of the same course of conduct were filed against Dean Allen Penrod, a juvenile. The juvenile appeared with his parents before the juvenile referee. The referee advised the juvenile of his rights pursuant to Juv.R. 29(B). The juvenile, counseled by his parents, elected to proceed with the adjudicatory hearing. The juvenile stated facts concerning the circumstances which gave rise to the four complaints. On two complaints, the referee found the facts sufficient to adjudicate the juvenile a delinquent child. The referee proceeded to disposition and further found that the best interest of the juvenile and the community warranted commitment to the Department of Youth Services. The referee recommended these findings to the court and, after review, they became an order of the court without objection. Within a week, additional complaints were filed against the juvenile. Included were three complaints from the prior adjudication. The state filed a motion pursuant to Juv.R. 30, and the juvenile court transferred the juvenile's case for prosecution as an adult. The juvenile filed a motion to dismiss based on double jeopardy. The trial court dismissed the three charges from the prior adjudication citing double jeopardy and the authority of Breed v. Jones (1975), 421 U.S. 519,95 S. Ct. 1779, 44 L. Ed. 2d 346. Assignment of Error "The trial court committed error in granting the defendant's motion to dismiss and finding that the defendant has already been placed in jeopardy on count two, rape by fellatio, and count three, felonious assault." The state relies upon the referee's draft recommendation and asserts that jeopardy does not attach when a complaint against a juvenile is dismissed following an adjudicatory hearing. The referee adjudicated the juvenile a delinquent child, based upon admitted facts sufficient to find the juvenile committed the acts charged in two complaints. The referee found no facts to substantiate the remaining two complaints and the state did not offer additional proof. The referee dismissed the two complaints "without prejudice." The state argues that the juvenile's failure to admit the facts alleged in the complaints is a denial. Confronted with a denial, the state did not proceed to prove the complaint allegations and, therefore, the juvenile was not placed in jeopardy. The state further argues that Juv.R. 29(B) provides a proceeding similar to criminal arraignment and jeopardy does not attach at arraignment. Ohio has long recognized that juvenile proceedings are not criminal in nature and the juvenile system must focus on the child's welfare. See, *Page 723 generally, In re Agler (1969), 19 Ohio St. 2d 70, 48 O.O.2d 85,249 N.E.2d 808 (the court reviewed Ohio juvenile system history and applied In re Gault [1967], 387 U.S. 1, 87 S. Ct. 1428,18 L. Ed. 2d 527). This court has previously stated that double jeopardy is not a mere criminal defense but a right to be free from a second prosecution, and a court proceeding which may result in incarceration places a juvenile in jeopardy. In reGilbert (1974), 45 Ohio App. 2d 308, 309-310, 74 O.O.2d 480, 481-482, 345 N.E.2d 79, 80-81. The state's argument fails for two distinct reasons. First, Juv.R. 29 has no counterpart in the Criminal Rules. See In reGreen (1982), 4 Ohio App. 3d 196, 4 OBR 300, 447 N.E.2d 129. In a delinquency case, the juvenile's plea is an admission or denial of the facts contained in the complaint. An admission is not a guilty plea but a waiver of rights to challenge the allegations. A juvenile is not a delinquent child until so adjudicated pursuant to Juv.R. 29. A denial is an assertion of the juvenile's right to challenge the allegations. If the allegations of the complaint are not proved, the complaint must be dismissed. Juv.R. 29(F). Second, the referee did not simply inform the juvenile of his rights as required under Juv.R. 29(B), and enter a denial to the complaints. It is common practice after a complaint is filed for the juvenile court to inform the child of his rights pursuant to Juv.R. 29(B) when the child initially appears before the court. Once satisfied the adjudicatory hearing may proceed, the court requests the juvenile to enter an admission or denial pursuant to Juv.R. 29(C). "The juvenile court may conduct its hearings in an informal manner and may adjourn its hearings from time to time." Juv.R. 27; R.C. 2151.35. It is also common practice for the juvenile court to adjourn the adjudicatory hearing after an admission or denial and schedule the adjudicatory hearing to continue, where evidence is presented and issues determined. In this case, the juvenile requested that the adjudicatory hearing proceed. The referee did proceed on the four complaints, heard the juvenile's statements, reviewed documents, made inquiry, and adjudicated the juvenile a delinquent child. The referee then immediately proceeded to disposition pursuant to Juv.R. 29(F) and 34. The fact that the juvenile did not admit to all the allegations contained in the complaints and no additional evidence was presented, does not prevent attaching of jeopardy: "Although R.C. 2151.23, insofar as it gives jurisdiction to the juvenile court `concerning any child who on or about thedate specified in the complaint is alleged to be a * * * delinquent * * *;' (emphasis added), implies that several claims of delinquency may be made resulting upon trial in several findings of *Page 724 delinquency, nevertheless, the finding that a child is a delinquent child is the finding of a legal status which status is common to all proceedings tried within the same time reference and which must result in one disposition for all complaints or a separate disposition for each complaint which is consistent with and not mutually exclusive of the disposition made at the same time for another complaint." In re Bolden (1973), 37 Ohio App. 2d 7, 16, 66 O.O.2d 26, 52, 306 N.E.2d 166,173. The juvenile's liberty was placed at risk on all four complaints when the court proceeded to determine issues. At that point, the juvenile court was no longer a mere advisor of rights, but a trier of fact. The adjudicatory hearing did not adjourn but continued to adjudication and disposition. For the foregoing reasons, the trial court did not err in granting the motion to dismiss and finding jeopardy attached as to the four complaints. The judgment of the trial court is affirmed. Judgment affirmed. REECE, J., concurs. QUILLIN, J., concurs in judgment only.

2016-07-06 06:42:20.829796+00

Lemert

This is an action brought by the appellee, hereinafter referred to as plaintiff, against the Amus-U-Theatre (an operative name for a partnership), appellant, hereinafter referred to as defendant. The case came on for trial and resulted in a verdict in favor of plaintiff in the sum of $1250. Motion for directed *Page 160 verdict was made at the close of plaintiff's evidence, and again at the close of all of the evidence. Motion for new trial was duly filed and overruled. This appeal is on questions of law only. Plaintiff, on the fourteenth day of October, 1934, in company with some friends, went to the Amus-U-Theatre, situated in Struthers, Mahoning county, Ohio, for the purpose of witnessing a picture show. She purchased a ticket and entered the lobby or foyer of the theatre, where she and her friends, as well as other patrons, were detained until the crowd then in the theatre had left. The foyer of this theatre is approximately ten or twelve feet in width, and at the northerly edge of it are two posts, about four feet apart, across which is connected a rope with hooks on the ends, so they can be disconnected for the purpose of letting people pass through the gate. The theatre is in a small structure and has one center aisle. When a performance is finished the patrons of the theatre pass up the center aisle, through the gate hereinbefore mentioned, and out the northerly door. The patrons enter a southerly door and walk into this foyer, where they are detained until seats are available. It is the claim of the plaintiff that after she had entered the foyer she was detained by reason of this rope across the gate; that while she waited there the foyer in back of her was filled up with a crowd of people; that when the patrons of the theatre would pass out, an usher would remove the rope to permit those waiting in the foyer to pass down into the seats; and that in so doing the crowd back of her gave her a shove, causing her to fall against the seats and receive the injury complained of. She went to her seat and remained in the theatre for a short time, after which she left and was taken to her home in Niles, Ohio, by one of her friends. Plaintiff alleged in her petition that the defendant *Page 161 was negligent in permitting a crowd of people to enter the foyer and in failing to protect the plaintiff when the rope was moved to permit the patrons to pass into the theatre; that defendant failed to keep proper supervision over the patrons to prevent them from crowding, shoving and injuring plaintiff; that defendant failed to keep its premises in a reasonably safe condition for this plaintiff, in accordance with her invitation; that defendant failed to use the proper degree of care in handling patrons, having in mind the patron's customary conduct; and that defendant knew, or in the exercise of ordinary care, could or should have known of the number of people who were standing in back of this plaintiff and the probabilities of their actions in the event that they were permitted to enter the aisle in a group. A general diagram of the lobby or foyer is before us as an exhibit. However, the issues and facts presented in this case do not require us to be particularly interested in that part of the theatre where the seats are located, but we are interested in the plan and dimensions of the front of the theatre, such as the entrance, the vestibule and the lobby, as it is divided for the receiving and discharging of patrons. On the day in question the program was unusually attractive and brought to the theatre an unusual number of people, with the result that five shows were put on during the afternoon of this day. The record discloses that the ordinary and customary personnel in conducting this show and handling the crowds consisted of Mrs. Pat Kelley, the defendant, the cashier and two boys of the age of nineteen and thirteen years, respectively; that these boys performed some duties within the theatre as compensation for being permitted to see the show without charge. The record is clear that on the afternoon in question Mrs. Pat Kelley could not give attention to *Page 162 the patrons, since the cashier was absent. She was continuously in the booth, selling tickets from 1:30 p.m. until 9:30 p.m. The only persons who seemed to be there to handle the crowd were an employee by the name of George Adams and the volunteer boys, as aforesaid. The record is clear that the management permitted a vast throng of people to crowd into this receiving lobby, with the result that when the chain was let down the people in the lobby surged through the opening, and everybody seemed to push and shove their way in. When the chain was lowered, the plaintiff, having retained her position near the chain at the opening, and thereby being in front of the mob, started through between the posts, with the result that the rushing crowd from behind threw her with great force to the floor of the aisle, near the seats on the left hand side of the aisle. After being hurled to the floor she seized the arm of the nearest seat and endeavored to, and did, raise herself from the floor, when she was again hurled by the shoving mob across the arm of the seat by the aisle and again to the floor between one row of seats and the back of the seats ahead. The record before us, without controversy, presents a situation in conformity with what has hereinbefore been stated, and there is but one contention really advanced here upon the part of the defendant, and that is that, conceding the injuries to plaintiff and the manner in which they were caused, the question of actionable negligence on the part of the defendant was not a jury question, and, as a matter of law, no duty owed by the defendant to this plaintiff was violated by the defendant. The question of proximate cause is not before this court. The plaintiff was injured. She was injured by being knocked down by the crowd that came surging through the opening when the chains were lowered, so *Page 163 that the main contention of the defendant, when it is all summed up, is that the management of a place of amusement owes no duty to protect its patrons from injury by the proper handling of crowds. We can not agree with this contention and we believe the law to be that those who operate amusement places must exercise reasonable care to meet hazards and dangers which may reasonably be anticipated. That there was a hazard and danger in this situation, is beyond dispute. The very thing that transpired proves the hazard and danger, and for one to urge that proprietors of amusement places do not and should not recognize the disposition of crowds to stampede for seats, or otherwise, in amusement places, unless controlled, is to confess a complete lack of understanding of the "crowd spirit." The question before us clearly presents a jury issue, to wit, should the management or proprietor have anticipated the danger? Did defendant meet the measure of care required? If the measure of care required was not met, was plaintiff injured, and, if so, were her injuries the direct and proximate result of such want of care on the part of the proprietor or manager? But counsel for defendant urge that there is nothing to be weighed by a jury in this case; that as a matter of law it should be declared by this reviewing court that there was no duty violated to this plaintiff patron by the defendant. An intelligent approach to the solution of the question at issue in this case is to determine the law or rule in Ohio in regard to the duty of those who invite patrons upon their premises. This is not a new question in our state but was touched upon in the case of Dunn v. Agricultural Society, 46 Ohio St. 93, 18 N.E. 496, 15 Am. St. Rep., 556, 1 L.R.A., 754. We find the Supreme Court of our state defining the duty of proprietors of amusement places in the case of Base Ball *Page 164 Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86, wherein the court says: "One who expressly or by implication invites others to come upon his premises must exercise ordinary care to guard them against danger, and to that end he must exercise ordinary care to render the premises reasonably safe for the invitees." The court, in the same case, at page 182, says: "Under such circumstances, since the management had expressly invited the plaintiff to come upon its premises, it was its duty to exercise ordinary care not to invite her into danger, and to that end it was its duty to exercise ordinary care to render the premises reasonably safe during the period of plaintiff's sojourn there as an invitee to the game. * * * Being in the business of providing public entertainment for profit, it was bound to exercise care commensurate with the circumstances of the situation to protect patrons against injury." The law on this point is well settled in 45 Corpus Juris, 858, Section 281. The great weight of authority in Ohio and elsewhere is that the duty of the proprietor of a place of amusement to exercise reasonable care for the protection and safety of its patrons, goes further than the mere provision of suitable premises. One who invites persons upon his premises must properly protect those accepting the invitation. In this day and age when managers and proprietors of places of amusement, and other places, invite the public and thereby cause great crowds of people to be amassed together, it would be violative of the common rules of humanity to say that no duty is imposed upon those proprietors and managers, who, for their profit, bring crowds together, to exercise ordinary care to protect and guard these people from the "crowd spirit" which always prevails. Since they owe such duty, it clearly becomes a jury question, under a proper charge of the *Page 165 court, as to whether the proximate cause of an injury to a person did or did not arise through a breach of duty. We find no error in the record, and it follows that the judgment of the court below will be, and the same is hereby, affirmed. Judgment affirmed. MONTGOMERY and SHERICK, JJ., concur. MONTGOMERY, SHERICK and LEMERT, JJ., of the Fifth Appellate District, sitting by designation in the Seventh Appellate District.

2016-07-06 06:42:20.868546+00

Strausbaugh

This is an appeal by the defendant from a conviction in the Court of Common Pleas of a felonious assault. A sentence of 4 to 15 years was imposed, with credit given for 88 days spent in custody after his bindover from the Juvenile Court. The record indicates that defendant, aged 17 years, was arrested on August 19, 1974, by the Columbus police on a charge relating to a dispute with his landlord on July 12, 1974; that, on August 21, 1974, a complaint was filed in Juvenile Court charging defendant with delinquency in committing a felonious assault under R. C. 2903.11; that also on August 21, 1974, the state filed a motion under Juv. R. 30 to transfer the proceedings to the Court of Common Pleas. On October 2, 1974, the court ordered defendant bound over to the Grand Jury. The state, however, did not transfer its file to the Court of Common Pleas after the bindover. On December 20, 1974, a record entry was again filed, ordering defendant bound over to the Court of Common Pleas. On December 23, 1974, defendant was indicted for attempted aggravated murder, pursuant to R. C. 2923.02. *Page 388 On December 27, 1974, defendant entered a plea of not guilty. The same day, the trial court signed an entry reciting that trial had been set for December 30, 1974, but that, on the application of defendant, the case was continued for reassignment to February 24, 1975. It stated: "defendant does not waive his statutory rights to a speedy trial, § 2945.71 et seq., R. C. from the date of arrest until December 30, 1974." Defendant's motion to dismiss, based upon the failure to bring him to trial within the time limits set forth in R. C.2945.71, et seq., was overruled. A trial to the court was conducted February 24, 1975, in which defendant was found not guilty of attempted aggravated murder, but guilty of the lesser included offense of felonious assault. From this conviction and sentence this appeal is taken. Defendant's first assignment of error reads: "The trial court erred in overruling defendant's motion to dismiss since he was not brought to trial within the time limits set forth in O. R. C. § 2945.71, et seq." R. C. 2945.71 provides that a person against whom a charge of felony is pending shall be brought to trial within 270 days after his arrest, and that, for purposes of computing time, each day the accused is held in jail in lieu of bail shall be counted as three. Defendant maintains that the provisions of R. C. 2945.71 should take effect as soon as the state files a motion to transfer under Juv. R. 30. The Ohio Supreme Court recently held in State, ex rel. Williams, v. Court of Common Pleas (1975),42 Ohio St.2d 433, at page 434: "* * * if a juvenile is accused of committing a felony, the 90-day period established by R. C. 2945.71 (C) (2) and (D) for commencing trial does not begin to run until the Juvenile Court relinquishes jurisdiction and transfers the accused to the `adult' court." Defendant's first assignment of error is overruled. Defendant's second assignment of error is: "The trial court erred in refusing to give the defendant jail time credit for the days he spent in juvenile custody." *Page 389 The court concurs with defendant and counsel for plaintiff that we find no case which would preclude credit for time served in the county jail pending the Juvenile Court's decision under Juv. R. 30, since R. C. 2967.191 mandates credit for jail time spent "for any reason arising out of the offense." Defendant's second assignment of error is sustained, and the cause remanded with instructions to allow credit to defendant for time spent by defendant in jail prior to October 2, 1974. For the foregoing reasons, defendant's first assignment of error is overruled, and the conviction is affirmed; the second assignment of error is sustained, and the cause remanded for credit for time spent in jail. Judgment affirmed in part and reversed in part,and cause remanded. HOLMES and REILLY, JJ., concur.