Datasets:

gen-law

/

katy-cl-extracted

like 0

Follow

genlaw 10

2016-07-06 06:42:20.691887+00

OPINION This is an accelerated calendar case submitted on the record and the brief of appellant, Citibank (South Dakota) N.A. ("Citibank"). Appellee, Joseph Ohlin, did not submit a brief. Citibank appeals from the February 1, 2000 judgment of the Warren Municipal Court, which granted appellee relief from judgment pursuant to Civ.R. 60(B)(1). Citibank filed suit on April 13, 1999, to collect an unpaid balance of $8,956.99 on a credit card. Service was perfected on appellee, who is a licensed attorney. On May 19, 1999, the trial court granted appellee leave to plead by June 17, 1999. However, no answer was filed. Six months later, on December 10, 1999, the court granted Citibank a default judgment. The court found appellee had been properly served and that he failed to plead or otherwise defend in accordance with Civ.R. 12. On Friday, January 28, 2000, appellee filed a motion for relief from judgment under Civ.R. 60(B). The substance of this motion was as follows: "For Cause [sic], Defendant states that he failed to respond to this matter because of ongoing negotiations with Plaintiff. Defendant respectfully submits that Plaintiff reissued credit cards to Defendant and his ex-wife during this controversy. "Defendant submits that his failure to respond constitutes excusable neglect pursuant to Civil Rule 60(B)(1)." On Tuesday, February 1, 2000, two business days after receipt of this motion, the trial court granted the motion and vacated its prior judgment. Prior to the granting of this motion, no notice was sent to Citibank, nor was a hearing held. From this judgment, Citibank timely filed its notice of appeal. In its first assignment of error, Citibank contends the trial court erred by granting appellee's motion two business days after it was filed, thereby depriving Citibank of notice, of the opportunity to respond, or of the opportunity to be heard. In its second assignment of error, Citibank contends the motion was deficient on its face. We review a trial court's disposition of a motion for relief from judgment under Civ.R. 60(B) under the abuse of discretion standard.1 Addressing Citibank's first assignment of error, the trial court should not rule upon a Civ.R. 60(B) motion until, at the least, the opposing party is provided notice of the motion and afforded an opportunity to respond in writing. Unless notice and an opportunity to be heard are given to opposing parties, a trial court has no authority to vacate its own judgment, whether upon the motion of a party or sua sponte.2 "The Ohio Civil Rules and due process require that such practice not be tolerated. Civ.R. 5(A) and 7(B)."3 For reasons explained in the second assignment of error, in this case, the trial court should not have ruled upon this motion without conducting a hearing on the matter. Citibank's first assignment of error has merit. We will now address Citibank's second assignment of error. In regards to a motion brought under Civ.R. 60(B), the Supreme Court of Ohio has held: "To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken."4 If all of these three requirements are not met, the motion should be overruled.5 "With respect to the form of the motion as it relates to the first prong of the GTE test (the meritorious defense or claim requirement), Civ.R. 60(B) does not contain any specific provision requiring a movant to submit evidential material, such as an affidavit, to support the motion for relief from judgment."6 However, "[i]n relation to the second and third prongs set forth in the GTE test, *** the movant is required to submit material of an evidential quality that would indicate the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and that the motion is made within a reasonable time."7 In the instant case, appellee did not submit any evidentiary material in conjunction with the motion. Appellee simply asserted within his motion that "[f]or Cause [sic], Defendant states that he failed to respond to this matter because of ongoing negotiations with Plaintiff. Defendant respectfully submits that Plaintiff reissued credit cards to Defendant and his ex-wife during this controversy." In the absence of any supporting material of evidentiary quality, appellee's motion, standing alone, is an insufficient basis upon which to grant relief. However, "[w]hile a deficient motion does not necessarily require that the motion be denied outright, it cannot be granted unless a hearing is had to determine the validity of the movant's assertions."8 We conclude that the trial court abused its discretion by granting relief on the basis of appellee's motion without first conducting a hearing on the matter. Citibank's assignments of error have merit. We reverse the judgment of the trial court and remand the matter for proceedings consistent with this opinion. PRESIDING JUDGE WILLIAM M. O'NEILL, CHRISTLEY, J., GRENDELL, J., concur. 1 Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. 2 Rice v. Bethel Assoc., Inc. (1987), 35 Ohio App.3d 133. 3 Id. at 134. 4 GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. 5 Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 351. 6 Thrasher v. Thrasher (June 15, 2001), Portage App. No. 99-P-0103, unreported, 2001 Ohio App. LEXIS 2720, at *6, citing Williams v. Ludlum (Aug. 20, 1999), Portage App. No. 98-P-0016, unreported, 1999 Ohio App. LEXIS 3869, at *8-9. 7 Id. at *6-7 8 Id. at *5, citing Ameritech Publishing, Inc., v. Moore (Aug. 24, 1993), Franklin App. No. 93AP-671, unreported, 1993 Ohio App. LEXIS 4147, at *3-4.

2016-07-06 06:42:20.796411+00

OPINION This is an appeal from the judgment of the Trumbull County Court of Common Pleas, which granted summary judgment in favor of appellee, The Cincinnati Insurance Company, on a complaint for declaratory judgment brought by appellee. The trial court determined that appellee was not obligated to represent and/or indemnify appellant, the Tauro Brothers Trucking Company, in the underlying case, filed by the estate of Walter Piecuch. A review of the record on appeal reveals that, on August 19, 1998, Walter Piecuch ("Piecuch") sustained mortal injuries, while unloading a tanker truck, during the course of his employment with appellant. On August 19, 1999, the estate of Piecuch filed a complaint against appellant, alleging: a cause of action for a substantial certainty type tort against his employer, appellant; and, a cause of action for product liability and/or negligence against the remaining named defendant, Fruehauf Trailer Corp. At the time of the accident, appellant was the named insured under a policy of commercial general liability coverage issued by appellee. The policy of insurance was modified by an Ohio Liability Coverage Enhancement, commonly known as "Stop Gap" coverage. The commercial general liability coverage, which covers bodily injury and property damage, provides in relevant part: "SECTION I — COVERAGES "COVERAGE A. "BODILY INJURY AND PROPERTY DAMAGE LIABILITY "1. Insuring agreement "a. We will pay those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies. We will have the right and duty to defend any `suit' seeking those damages. * * *" "2. Exclusions "This insurance does not apply to: "* * * "e. Employer's Liability "`Bodily injury' to: "(1) An `employee' of the insured arising out of and in the course of: "(a) Employment by the insured, or "(b) Performing duties related to the conduct of the insured's business; * * *" "* * * "h. Mobile Equipment "`Bodily Injury' or `property damage' arising out of: "(1) The transportation of `mobile equipment' by an `auto' owned or operated by or rented or loaned to any insured; * * *" Coverage D, the Ohio liability Coverage Endorsement, modifies Section I, supra, as follows: "A. SECTION I — COVERAGES is amended to include the following: "* * * "2. Exclusions. "This insurance does not apply to: "(h) `bodily injury' expected or intended from the standpoint of the insured. This exclusion includes but is not limited to: "(1) any liability for acts committed by or at the direction of an insured with the deliberate intent to injure; and "(2) any liability for acts committed at the direction of an insured in which the act is substantially certain to cause `bodily injury.' For purposes of this insurance, an act is substantially certain to cause `bodily injury' when all three of the following conditions are met: "(a) an insured knows of the existence of a dangerous process, procedure, instrumentality or condition within its business operation. "(b) an insured knows that if an employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be substantially certain; and "(c) an insured under such circumstances and with such knowledge does, act to require the employee to continue to perform the dangerous task; * * *" On October 20, 1999, appellee filed a complaint for declaratory judgment regarding whether appellee had an obligation to represent and indemnify appellant in the lawsuit brought by the estate of Piecuch. Appellant filed an answer and counterclaim. Both parties filed motions for summary judgment. On March 7, 2001, the trial court awarded summary judgment in favor of appellee. From this judgment, appellant raises the following assignment of error: "[1.]The trial court erred in granting [appellee's] motion for summary judgment and in overruling defendant's motion for summary judgment." In appellant's sole assignment of error, he argues that when an employer commits an intentional tort, the employment relationship is not implicated under Ohio law. Therefore, appellant contends, any exclusion in an insurance policy, which is dependent upon the existence of an employment relationship, is not operative when an employer intentional tort is alleged. In support of this argument appellant relies on the following passage: "`Injuries resulting from an employer's intentional torts, even though committed at the workplace, are utterly outside the scope of the purposes intended to be achieved by Section 35 and by the Act. Such injuries are totally unrelated to the fact of employment. When an employer intentionally harms his employee, that act effects a complete breach of the employment relationship, and for purposes of the legal remedy for such an injury, the two parties are not employer and employee, but intentional tortfeasor and victim. * * *'" (Emphasis sic.) Johnson v. B.P. Chemicals, Inc., 85 Ohio St.3d 298, 305, 1999-Ohio-267, quoting Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 634. Accordingly, appellant contends that, in this case, none of the applicable exclusions are operative, and, thus, it is entitled to coverage under the commercial general liability coverage. In opposition, appellee argues that the instant case is governed by the terms of the insurance policy — including the exclusions, and not by the body of case law concerning the elements of employer intentional tort and how they impact the employer-employee relationship. Upon review, we conclude that appellant's reliance on Johnson is misplaced. Neither Brady nor Johnson dealt with the relationship between an employee and his employer's liability insurer. Instead, both cases involved the issue of whether a claimant can maintain a common law action to redress injury incurred as a result of an employer intentional tort. In both cases, the Supreme Court of Ohio held that, as it relates to a workers' compensation claim, an employer's intentional torts are totally unrelated to the fact of employment. Thus, a claimant may maintain a private cause of action. The crux of both Brady and Johnson was whether a claimant could also maintain a common law claim of intentional employer tort in addition to a workers' compensation claim, not whether an employer's insurance provider was required to indemnify and/or represent its insured in an employer intentional tort action. Therefore, appellant's reliance on Brady and Johnson is misplaced. In the instant case, we are not presented with the issue of whether the estate of Piecuch can maintain a common law claim of employer intentional tort. The sole issue before this court is whether the insurance policy provides for representation and/or indemnification of tort claims brought by an employee alleging that his injury was substantially certain to occur. Having concluded that Brady and Johnson do not govern the instant case, we must look to the relevant law regarding insurance policies. An exclusion of employer intentional torts from insurance coverage is effective when the exclusionary language is clear and unambiguous. Moorev. Cardinal Packaging, Inc. (2000), 136 Ohio App.3d 101, 106; Lakota v.Westfield Ins. Co. (1998), 132 Ohio App.3d 138. In the instant case, upon reading the Ohio Liability Coverage Enhancement, it is clear that employer intentional torts are specifically excluded from coverage by the terms of the policy. Thus, appellee does not have a duty to defend or indemnify appellant in the underlying cause of action alleging an employer intentional tort. Appellant's sole assignment of error lacks merit. Based on the foregoing, the judgment of the Trumbull County Court of Common Pleas is affirmed. JUDITH A. CHRISTLEY, P.J., DIANE V. GRENDELL, J., concur.

2016-07-06 06:42:21.134939+00

Plaintiffs-appellants, William Hess, Administrator of the Estate of Winifred Turner, and the Estate of Winifred Turner, appeal from an order of the Franklin County Court of Common Pleas granting a motion brought by defendants-appellees, James Rader and Financial Asset Management, Inc., seeking a stay of proceedings pending arbitration. Appellants filed their action against George Heer, Financial Asset Management, Inc., and James Rader, individually, and in his capacity as President of Financial Asset Management, Inc., alleging theft, fraud, securities law violations, breach of fiduciary duty and negligence. Heer was a licensed securities account representative and served as a financial advisor to appellants' decedent, Winifred Turner, from sometime in the mid-1980's until her death in 1997. Heer was affiliated during this period with appellees Rader and Financial Asset Management, Inc. He is variously described in the pleadings as an employee, agent, or independent contractor with Financial Asset Management, Inc. Appellants' complaint alleges that during the period in question, Heer fraudulently converted in excess of $900,000 from Winifred Turner's personal assets, converted antique jewelry and furniture with a value in excess of $25,000, and otherwise breached his fiduciary duty to the decedent. Appellees allege that in connection with her financial dealings with appellees, Ms. Turner signed a "customer agreement" in which she agreed, in pertinent part, to submit to arbitration as follows: "You agree, and by maintaining an account for you Bear Stearns agrees, that controversies arising between you and Bear Stearns concerning your accounts or this or any other agreement between you and Bear Stearns, whether entered into prior to, or subsequent to the date hereof, shall be determined by arbitration." The customer agreement further provided: "You agree that your broker is a third-party beneficiary of this Agreement and that the terms and conditions hereof, including the arbitration provision, shall be applicable to all matters between or among any of you, your broker or Bear Stearns." The arbitration clause of the customer agreement further provided that arbitration would be final and binding on the parties and the parties were waiving their rights to seek judicial remedies. The trial court granted the motion of appellees Rader and Financial Asset Management, Inc., for a stay pending arbitration, pursuant to the arbitration clause in the account agreement, and R. C. 2711.02: "If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court for which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement * * *." An order entered pursuant to R.C. 2711.02 is a final appealable order that may be reviewed, affirmed, modified, or reversed on appeal pursuant to the Rules of Appellate Procedure. Fabe v.Columbus Ins. Co. (1990), 68 Ohio App.3d 216. Appellants timely appeal and bring the following assignment of error: "The Common Pleas Court erred in staying trial of Plaintiff's Complaint pending arbitration." Appellants present three arguments urging reversal of the trial court's order to stay proceedings. Appellants assert that the account agreement generally, and the arbitration clause in particular, are unenforceable because the decedent lacked the capacity to contract at the time she signed the agreement; that the agreement is otherwise void for fraud in the factum or fraud in the inducement; and that appellees Rader and Financial Asset Management, Inc., are not parties to the agreement, which is executed in the name of Bear Stearns without reference to the names of the above — named appellees. It is well-settled that the law of the state of Ohio favors and encourages resolution of disputes through arbitration, particularly where the dispute arises under a written agreement containing an arbitration clause. Kelm v. Kelm (1993), 68 Ohio St.3d 26,27; Campbell v. Automatic Die Products Co. (1954),162 Ohio St. 321. In recognition of this policy, the General Assembly has enacted R.C. 2711.02, which requires a court to stay an action if the issue involved falls under an arbitration agreement. We first address appellants' contention that the arbitration clause is unenforceable because the entire customer agreement should be voidable based upon fraud in the inducement. "To defeat a motion for stay brought pursuant to R.C. 2711.02, a party must demonstrate that the arbitration provision itself in the contract at issue, and not merely the contract in general, was fraudulently induced." ABM Farms, Inc. v. Woods (1998),81 Ohio St.3d 498, syllabus. "A claim of fraud in the inducement arises when a party is induced to enter into an agreement through fraud or misrepresentation." Id. at 502. The fraud must thus relate to the facts inducing execution of the contract, rather than the nature or object of the contract. Haller v.Borror Corp. (1990), 50 Ohio St.3d 10, 14. In order to show fraud in the inducement, a plaintiff must establish knowing, material misrepresentation with the intent of inducing reliance, and actual reliance upon that misrepresentation in execution of the contract. Beer v. Griffith (1980), 61 Ohio St.2d 119,123. In the present case, while appellants have generally alleged fraud or negligence on the part of the various appellees, there is no allegation of fact that the arbitration clause itself was fraudulently induced. This argument by appellants is therefore without merit. We now turn to appellants' argument that appellants' decedent lacked the capacity to enter into the customer agreement, and that the agreement and its arbitration clause are thus unenforceable. While the pleading contains general assertions that Winifred Turner suffered an inability to manage her own affairs from the early 1990's until her death in 1997, there is no specific allegation in the complaint that the customer agreement, dated in February 1991, should be voided because the decedent at that time lacked the capacity to enter into a contract. On the state of the pleadings before us, we find the trial court did not err when it declined to rely on the decedent's alleged lack of capacity as a potential bar to arbitration. Finally, we address appellants' argument that the dispute between the parties to the present appeal are not subject to the arbitration agreement, because the arbitration agreement is executed in the name of the decedent and Bear Stearns. Appellees assert that they are beneficiaries of the arbitration clause because of a business association with Bear Stearns in which they served as local representatives for the firm, which then handled their brokerage transactions on the market. Parties not privy to a contract may not benefit from an arbitration agreement incorporated therein. Kline v. OakridgeBuilders, Inc. (1995), 102 Ohio App.3d 63. A trial court staying a suit pending arbitration pursuant to R.C. 2711.02, must be "satisfied that the underlying dispute is referable to arbitration under the agreement between the parties." Brumm v.McDonald Co. Securities, Inc. (1992), 78 Ohio App.3d 96, 101. On the present facts, we find that the threshold issue of whether or not appellees Rader and Financial Asset Management, Inc., were privy to the customer agreement between the decedent and Bear Stearns has not been adequately addressed by the trial court. In the absence of an evidentiary hearing on the issue of whether appellees were parties to the arbitration clause, the trial court had insufficient basis to find that the matter was subject to the arbitration clause and should be stayed. It may well be that appellees can establish, without great difficulty, their relationship with Bear Stearns and thereby benefit from the arbitration clause in the agreement. In the absence of a stipulation to such a state of affairs by appellants, the trial court should have at a minimum required proof of this prior to issuing the stay. Accordingly, we find that the judgment of the Franklin County Court of Common Pleas entering a stay pursuant to R.C. 2711.02 shall be reversed, and the matter shall be remanded for an evidentiary hearing as to whether appellees Rader and Financial Asset Management, Inc., can properly invoke the arbitration clause in the customer agreement between appellants' decedent and Bear Stearns. Judgment reversed and cause remanded. BOWMAN and BROWN, JJ., concur.

2016-07-06 06:42:21.170479+00

OPINION {¶ 1} This is an appeal from the March 25, 2003 judgment of the Probate Division of the Seneca County Common Pleas Court which removed Defendant-appellants, Marvin J. Wise and Kathryn M. Slingwine, as co-executors of the estate of Edna S. Falter. {¶ 2} Ms. Edna S. Falter died testate on April 6, 2000. Prior to her death, she drafted two wills. The second will, which is the subject of this dispute, was drafted on July 27, 1999. The document contained a clause that left the residuary of Ms. Falter's estate to "Extended Family Adult Care, Bellevue, Ohio." Wise and Slingwine1 were the executors named in the 1999 will. Additionally, Wise was a beneficiary under the 1999 will. {¶ 3} Plaintiff-appellee, Ann Beaston (Beaston), an executrix and heir under the first will subsequently filed a complaint, alleging (1) that the will was invalid because the testatrix lacked testamentary capacity and was under undue pressure and influence, and (2) that the residuary clause was invalid because Extended Family Adult Care was not a legal entity and thus lacked capacity to take under a will. {¶ 4} The parties filed cross motions for summary judgment regarding the validity of the will's residuary clause. The trial court entered summary judgment on behalf of Ms. Beaston, holding that "Extended Family Adult Care" is not a legal entity and therefore lacked capacity to take under a will.' Thereafter, this court reversed the order of the trial court stating that there was a question of fact, or latent ambiguity, as to whether Falter intended to leave the residuary of her estate to "Extended Family Adult Care Center" but mistakenly gave the bequest to "Extended Family Adult Care" in her will. {¶ 5} On November 18, 2002, a trial was held wherein a jury was instructed to determine whether Falter intended to leave the residuary of her estate to the place where she lived, "Extended Family Adult Care" or to "Karen Pelton dba Extended Family Adult Care Center." The jury found that Falter intended to leave the residuary of her estate to the place where she lived. Thereafter, the trial court determined that because a place cannot accept a bequest, the bequest was void and therefore, the residuary would pass under the statutes of descent and distribution. Karen Pelton (Pelton) appealed this determination but failed to request a stay of the proceedings in the trial court. Wise and Slingwine's names appeared on the notice of appeal. {¶ 6} On January 10, 2003, Wise and Slingwine, as executors, filed an application for authority to pay attorney's fees. Specifically the application requested that the estate pay $33,055.00 for services rendered by Hart for defending Falter's will. However, the list that Hart submitted included fees for services rendered over a year before Wise and Slingwine retained Hart's services. Wise and Slingwine also requested "the Court's determination on attorney fee payments to Mr. Hart on any further actions,2 including any appeal actions." Ironically, on January 27, 2003, Wise, as a beneficiary, filed an objection to his own motion for attorney's fees. Thereafter, on January 31, 2003, Beaston and the Heir's at Law both filed additional objections to the payment of attorney's fees. On February 27, 2003, Wise and Slingwine purported to withdraw the application for attorney's fees. {¶ 7} On March 6, 2003, the trial court denied Wise and Slingwine's application to withdraw their request for attorneys fees because a hearing was necessary based on "the significant nature of the fees that are being sought, the fact that no prior application for retaining counsel and fees were approved by the court and because these may affect the amounts to be distributed to the current heirs and beneficiaries of this estate." The trial court also noted: The court is concerned that this appearance of an alignment by thedefendant co-fiduciaries with a former party to this action [Pelton] mayresult in appearance of breach of those duties of trust that are placedupon the fiduciaries as they administer the estate. {¶ 8} Thereafter, the trial court, on its own motion, scheduled a hearing to consider the removal of Wise and Slingwine as executors under R.C. 2109.24. On March 19, 2003, a hearing was held on the matter. At the hearing, Hart represented Pelton, Marvin and Wise. Furthermore, Wise testified that the list of fees Hart submitted included fees for the representation of Pelton but that he thought the fees would be differentiated at a later date. Slingwine testified that while she would direct the estate according to the court's order, she still believed that Falter intended the estate to go to her daughter, Pelton. {¶ 9} In its March 25, 2003 entry, the trial court found, [T]he Court further finds by clear and convincing evidence that theco-executors of the estate have repeatedly aligned themselves with KarenPelton dba Extended Family Adult Care Center, a former party in thismatter, in filings before this court, by filing an application forauthority to pay attorney fees of said former party incurred in thismatter and to be incurred in a pending appeal by said former party, bywithdrawing said application without leave of court, by engaging withoutthis Court's prior approval said former party's attorney as theirco-counsel and by continuing to engage said former party's attorney astheir co-counsel, and by otherwise taking positions adversarial to thenext of kin and heirs of law, who are the residuary beneficiaries ofdecedent's estate under this Court's Judgment Entry filed November 22,2002 in Case No. 013695(A), all without giving bond or otherwise seekingor obtaining a stay of this Court's said Judgment Entry. The Court findsby clear and convincing evidence that the co-executors have otherwisebreached their trust as such fiduciaries and that the interest of thetrust demands that they be removed as such fiduciaries. {¶ 10} Thereafter, the trial court removed Wise and Slingwine as executors of Falter's estate. Wise and Slingwine now appeal, asserting a single assignment of error. The trial court erred when it found the co-executors had committed abreach of trust requiring the removal from their position asco-executors. {¶ 11} R.C. 2109.24 provides that a court may remove a fiduciary after giving at least 10 days notice for "habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct, because the interest of the trust demands it, or for any other cause authorized by law." The removal of an executor of a will falls within the sound discretion of the probate court. In re Estate of Kirschbaum (May 12, 1986), Hancock App. No. 5-85-20 at *1. Consequently, so long as the court fairly finds that one of the factors in R.C. 2109.24 is present, "there is no requirement that the finding be supported by clear and convincing evidence." In re Estate ofBost (1983), 10 Ohio App.3d 147, 149; Kirschbaum, supra. Furthermore, "[a]n executor's actions need not amount to violations of law or even cause injury to the estate to warrant a finding that the best interests of the estate will be served by removal." Bost, supra.3 {¶ 12} The Ohio Supreme Court in In re Estate of Zonas, (1989)42 Ohio St.3d 8, 12 stated that, A fiduciary's interest in a will contest should be to preserve andprotect the property of the estate. Although he may defend the will, he isnot required to do so and may cast the defense burden onto the legateesand devisees. A fiduciary represents the entire estate and has the dutyto distribute the estate property but should not enter into controversiesamong rival contestants. [citations omitted]. {¶ 13} "Such controversies do not involve `claims' against the estate such as an executor is bound to resist." Doty v. Peters (1958),106 Ohio App. 435, 440. If the estate itself would remain intact, but only its distribution would be affected, the executor owes no duty whatever to the estate to oppose a potential beneficiary. Id. Furthermore, once the beneficiaries under the will are notified of any litigation, any duty to the beneficiaries in that connection is discharged. Id. {¶ 14} In this case, there was clearly a controversy between the beneficiaries under the will and the heirs at law as to the meaning of the residuary clause of Falter's will. In fact, Wise as an executor actually had a conflict with himself as beneficiary. As stated by the trial court in its entry, Wise and Slingwine have repeatedly aligned themselves with Pelton. Because Wise and Slingwine have not provided this court with any applicable law which indicates that their removal as co-executors for the reasons cited by the trial court is not authorized by law, we cannot find that the trial court abused its discretion. Consequently, the single assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. Bryant, P.J., and Cupp, J., concur. 1 Slingwine is the mother of Karen Pelton, the owner of Extended Family Adult Care Center in Bellevue, Ohio. 2 The will contest action was pending at the time of this application for attorney fees. 3 Wise and Slingwine cite In re Estate of Henne (1981),66 Ohio St.2d 232 as authority to determine when a fiduciary may be removed. However, Henne involved the initial appointment of an executor not the removal of an existing executor.

2016-07-06 06:42:21.239373+00

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellants, Hope Porter ("Mother") and Manard Porter ("Father"), appeal from the decision of the Summit County Court of Common Pleas, Juvenile Division, which terminated their parental rights to their son, W.P., and awarded permanent custody to the Summit County Children Services Board ("CSB"). We affirm. I. {¶ 2} Mother and Father were married on September 21, 1998, and W.P. is their biological son, born April 13, 2000. Mother was previously involved with CSB when permanent custody of Mother's minor child, B.S., was granted to CSB on April 16, 1999. Father is not the biological father of B.S. {¶ 3} On April 17, 2000, CSB filed a complaint in the Summit County Court of Common Pleas, Juvenile Division, alleging that the minor child, W.P., was dependent, pursuant to R.C. 2151.04. The juvenile court entered an emergency order of custody, and W.P. was removed from his parents' custody and placed in the custody of CSB. W.P. was four days old at the time of the removal. On May 9, 2000, CSB filed a supplemental affidavit adding an allegation of neglect pursuant to R.C. 2151.03(A). On May 10, 2000, an adjudication hearing was held. The parties stipulated to the finding of dependency, and the allegation of neglect was dismissed without prejudice. At the dispositional hearing held on August 16, 2000, the parties stipulated that placing W.P. in the temporary custody of CSB was in the best interest of the child, and a case plan was adopted. {¶ 4} On December 19, 2000, CSB moved for permanent custody of W.P. On April 11, 12, and May 22, 2001, the permanent custody hearing was held before a magistrate. The magistrate issued a decision on June 26, 2001. Both Mother and Father filed timely objections to the magistrate's decision. On April 23, 2002, the juvenile court overruled the parties' objections, terminated the parental rights of both Mother and Father, and awarded permanent custody of W.P. to CSB. {¶ 5} This appeal followed. Mother and Father each appealed, and this Court consolidated the actions. Mother raises three assignments of error, which she addresses together, while Father raises one. Because the assignments of error are interrelated, we will address them together for ease of review. II. Mother's Assignments of Error {¶ 6} "THE TRIAL ERRED IN FINDING THAT IT IS IN THE MINOR CHILD'S BEST INTEREST THAT SHE [SIC] BE PLACED IN THE PERMANENT CUSTODY OF CSB AS THE PROSECUTION FAILED TO MEET ITS BURDEN OF PROOF REQUIRING CLEAR AND CONVINCING EVIDENCE[.]" {¶ 7} "THE TRIAL COURT ERRED IN GRANTING CSB'S MOTION FOR PERMANENT CUSTODY THEREBY TERMINATING THE PARENTAL RIGHTS OF APPELLANT HOPE PORTER AS THE TRIAL COURT'S FINDINGS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHICH COULD ONLY LEAD TO ONE CONCLUSION THAT BEING CONTRARY TO THE JUDGMENT OF THE TRIAL COURT[.]" {¶ 8} "THE TRIAL COURT ERRED IN GRANTING CSB'S MOTION FOR PERMANENT CUSTODY AS APPELLANT HOPE PORTER SUBSTANTIALLY COMPLIED WITH HER CASE PLAN REQUIREMENTS." Father's Assignment of Error {¶ 9} "THE JUVENILE COURT'S AWARD OF PERMANENT CUSTODY TO THE CHILDREN SERVICES BOARD IS NOT IN THE BEST INTERESTS [SIC] OF THE CHILD, IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." {¶ 10} In their assignments of error, both Mother and Father assert that the order awarding permanent custody of W.P. to CSB was not supported by clear and convincing evidence, was not in the best interest of the child, and was against the manifest weight of the evidence. Mother further alleges that the trial court erred when it granted permanent custody to CSB because she substantially complied with her case plan. We disagree. {¶ 11} When evaluating whether a judgment is against the manifest weight of the evidence in a juvenile court, the standard of review is the same as that in the criminal context. In re Ozmun (Apr. 14, 1999), 9th Dist. No. 18983, at 3. In determining whether a criminal conviction is against the manifest weight of the evidence: {¶ 12} "[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 [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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Thompkins (1997), 78 Ohio St.3d 380, 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. {¶ 13} "[E]very reasonable presumption must be made in favor of the judgment and the findings of facts [of the trial court]." Karches v.Cincinnati (1988), 38 Ohio St.3d 12, 19. Furthermore, "if the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the [juvenile] court's verdict and judgment." Id. Accordingly, before an appellate court will reverse a judgment as being against the manifest weight of the evidence, the court must determine whether the trier of fact, in resolving evidentiary conflicts and making credibility determinations, clearly lost its way and created a manifest miscarriage of justice. {¶ 14} Termination of parental rights is an alternative of last resort but is sanctioned when necessary for the welfare of a child. In reWise (1994), 96 Ohio App.3d 619, 624. Before terminating parental rights and awarding a moving agency permanent custody of a child, who is neither abandoned nor orphaned, the juvenile court must find clear and convincing evidence of both prongs of the statutory test: (1) that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent or that the child has been in the temporary custody of the agency for more than twelve of the last twenty-two months and (2) that the grant of permanent custody to the agency is in the best interest of the child, based on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1). Clear and convincing evidence is that which will produce in the trier of fact "`a firm belief or conviction as to the facts sought to be established.'" In re Adoption of Holcomb (1985),18 Ohio St.3d 361, 368, quoting Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. {¶ 15} Concerning the first prong of the statutory test, when determining 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, in considering all relevant evidence, must determine by clear and convincing evidence that one or more of the enumerated factors set forth in R.C. 2151.414(E) exists as to each parent. R.C. 2151.414(E). If the court finds that any of the enumerated conditions is present or occurred in the case, the court must enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with the parents. In re Higby (1992), 81 Ohio App.3d 466, 468. {¶ 16} In this case, the juvenile court cited the following factors enumerated in R.C. 2151.414(E) concerning whether the child cannot be place with either parent within a reasonable time or should not be placed with the parents: {¶ 17} "(1) Following the placement of the child outside the child's 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. {¶ 18} "(2) Chronic mental illness, chronic emotional illness, mental retardation, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code; {¶ 19} "(11) The parent has had parental rights involuntarily terminated * * * with respect to a sibling of the child[;] {¶ 20} "(16) Any other factor the court considers relevant." {¶ 21} As to the second prong, in determining whether a grant of permanent custody is in the child's best interest, the juvenile court must: {¶ 22} "consider all relevant factors, including, but not limited to, the following: {¶ 23} "(1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child; {¶ 24} "(2) The wishes of the child, as expressed * * * through the child's guardian ad litem[;] {¶ 25} "(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; {¶ 26} "(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; {¶ 27} "(5) Whether any of the factors in divisions (E)(7) to (11) of [R.C. 2151.414] apply in relation to the parents and child." R.C. 2151.414(D)(1)-(5). {¶ 28} Although the trial court is not precluded from considering other relevant factors, the statute explicitly requires the court to consider all of the enumerated factors. {¶ 29} Witnesses who testified at the permanent custody hearing included Dr. Ann Hickin, a licensed psychologist at Northeast Ohio Psychological Associates (NEOPA); Lora Paisley, a nurse the rapist at Portage Path Behavioral Health; Donna Abbott, a pediatric nurse practitioner at Children's Hospital Medical Center of Akron; Elizabeth Harrison; Marsha Morlan, W.P.'s foster caregiver; Stephen Hertrick, Mother and Father's previous landlord; Margaret Campbell, a CSB case aide; William Cardina, a CSB social worker; Manard Porter, I., Father's father and W.P.'s grandfather; Linda Simms, Mother's sister; Mother; and Father.1 Sharon Sciartelli, W.P.'s guardian ad litem, presented her report. The testimony revealed the following. {¶ 30} Dr. Hickin met with Mother and Father each approximately five times. She conducted various intelligence tests and performed psychological and parenting evaluations. Dr. Hickin testified that Mother scored in the low-average range of intellectual functioning and has problems applying what she has learned. Mother suffers from chronic mental illness and has some hearing loss. The test results indicated depression, a cynical viewpoint, a tendency to ignore the advice of others, and impulsiveness. However, the results also indicated a willingness to look at the positive aspects of life and the negative aspects of self in proportion. Although Mother performed well on daily living skills, she exhibited problems with socialization skills. {¶ 31} Dr. Hickin diagnosed Mother as having a personality disorder "Not Otherwise Specified with Narcissistic and Dependent Features." Dr. Hickin explained that Mother needs a lot of reinforcement of self worth, affection, and attractiveness, and she tends to become involved in relationships in which she is dependent on others, which could lead Mother to place herself in dangerous situations. Dr. Hickin also testified that Mother does not take responsibility for her actions; for instance, Mother indicated that the termination of her parental rights to her first child was not Mother's fault. {¶ 32} There are reports of domestic violence occurring in the house, including an instance of domestic violence in the couple's home less than two weeks after CSB was granted permanent custody of B.S. and Mother's parental rights were terminated with respect to that child. Father was convicted of domestic violence in March, 1999. Mother does not perceive the domestic violence occurring in the home as others interpret it. In reference to the circumstances leading to Father's conviction of domestic violence, Mother denied having any bruises, which causes concern for Dr. Hickin because Mother does not perceive the situation at home as being dangerous. {¶ 33} Mother told Dr. Hickin that she and Father argued everyday about Father's dislike of the way Mother dresses and styles her hair. Mother indicated that she felt Father was controlling her. Dr. Hickin's recommendations for Mother were for her to continue counseling, continue working on issues surrounding her personality disorder, and reevaluate and reinvestigate her hearing deficit. Dr. Hickin did not recommend returning W.P. to the custody of Mother until Mother addressed her denial of the domestic violence and admitted and dealt with Father's controlling behavior. {¶ 34} Lora Paisley testified that Mother denied any instances of domestic violence until recently. Mother admitted to Paisley that Father pinches her and hits her in her sleep, leaving bruises. Mother also stated that she would tolerate the abuse in order to get W.P. returned to her. Paisley does not believe that this is a safe environment in which to raise a child. Paisley has referred Mother to a battered women's shelter. CSB recommended joint counseling for the couple, but Father was not receptive to the idea. William Cardina, a social worker with CSB, does not believe that the environment in the home has stabilized. Cardina testified that "Ms. Porter is in danger and we feel any one-year-old child would be in danger." {¶ 35} Dr. Hickin performed a psychological evaluation on Father. Dr. Hickin testified that he scored in the average range of intellectual functioning, but showed problems solving everyday problems. The tests revealed a great deal of anxiety and irritability over minor obstacles, low frustration tolerances, impulsive features, and exaggeration. When asked about how he met Mother, Father reported that he always wanted to be with her and now he has her. That statement concerned Dr. Hinkin because it indicates that Father did not merely enter into a relationship with Mother, rather, he obtained her or possessed her, which puts the relationship at risk for domestic violence. {¶ 36} Father told Dr. Hickin that the charges of domestic violence which led to his conviction in March 1999 should never have been filed, and that he did not believe he hurt Mother. He indicated to Dr. Hickin that Mother looked at him in a way that reminded him of his own defiance with his parents, and this infuriated him. He also indicated that he did not know if he believed in domestic violence. Father completed anger management classes after his conviction, and stated that when he gets angry he will go for a walk to "cool off." Father testified that Mother often lies and exaggerates about the domestic violence in the home. It is Dr. Hickin's opinion that Father does not have control, even after he completed anger management classes. Dr. Hickin's recommendations for Father were that he enter counseling relating to mood and anger management and domestic violence coping skills, as well as classes on life planning. {¶ 37} Paisley has counseled Mother once a month for the past three years. During that time, Mother has missed only one appointment. Paisley testified that Mother has been working on improving her judgment and establishing boundaries in her relationships. Paisley stated that Mother's diagnosis from Portage Path was that she suffers from a personality disorder not otherwise specified with depressant and immature features. Paisley did not agree with the diagnosis given by Dr. Hickin of NEOPA, that Mother's personality disorder included narcissistic features. {¶ 38} Cardina testified that at the time of W.P.'s removal, CSB was concerned with the history of the couple. CSB had received previous referrals concerning Father, and CSB had previously been granted permanent custody of another child of Mother. The couple's housing has been unstable in the past, with the couple moving several times prior to W.P.'s birth. However, the couple moved only once while this matter was pending, and Cardina testified that the past two apartments have been suitable for a child. The couple left their previous apartment abruptly, without telling Mr. Hertrick, the landlord, that they were vacating the apartment. Father testified that he lied to the landlord and told him the rent check was in the mail when he knew that it was not. Father explained this by saying he lost his train of thought and instead of telling Hertrick they were moving out, he told him that the rent check was in the mail. Hertrick testified that he had problems with Mother and Father missing payments and making late payments. Hertrick obtained a judgment in Barberton Municipal Court against the couple in the amount of $2165 for unpaid rent, late fees, and damages. {¶ 39} W.P. has been living with his foster caregivers, Mr. and Mrs. Morlan, since he was four days old. The Morlans have provided for all his needs, including caring for him when he underwent surgery for pyloric stenosis at the age of five months, and recently when he had tubes inserted in his ears. The Morlans wish to adopt W.P. if CSB is granted permanent custody. {¶ 40} Mother and Father have been consistent in their visitations at the CSB visitation center and have only missed their scheduled visits when W.P.'s foster caregiver was on vacation. Margaret Campbell, a CSB case aide, has closely supervised the visits at the CSB Visitation Center between W.P. and Mother and Father. She testified that Mother has problems stimulating W.P. and performing tasks such as putting on his coat and snowsuit. Campbell stated that Mother has to be told everything. Campbell further testified that Mother is not watchful of her hearing aids batteries, that she turns her hearing aid down at times, which concerns Campbell because Mother may not hear the child. Father is appropriate with W.P., gives him bottles, and changes his diapers; however, Campbell testified that the couple does not interact with W.P. together, rather, they interact with him one at a time. Campbell also related instances in which Father was rude to Mother, making harsh and inappropriate comments to her while in Campbell's presence. However, Campbell noted this behavior has stopped in the past few months. {¶ 41} Both Campbell and Mrs. Morlan, W.P.'s foster caregiver, testified that W.P. has no separation anxiety from Mother and Father at the end of the visits. W.P. is quick to go to his foster caregiver, Morlan when she picks him up. W.P. is beginning to refer to Morlan and her husband as "mama" and "dadda." Morlan believed that Mother and Father are happy to see W.P. at the visits. W.P. is ready to go when she picks him up. {¶ 42} Sharon Sciartelli, W.P.'s guardian ad litem, reported that W.P. is healthy and developmentally on target. Any medical concerns have been addressed promptly and effectively by his foster caregivers. Sciartelli noted that Mother and Father have completed several of the tasks set forth in the case plan; however, she also reported that it is unclear if the participation in the various programs had resulted in any meaningful changes in the home environment. Sciartelli pointed to concerns regarding providing a home that is free of abuse and neglect and that is stable and safe. She believes the couple's personal characteristics, attitudes and behavior patterns led to the domestic violence and financial and housing troubles. She further stated that this is unlikely to change, and the case plan requirements will not be met anytime soon. She noted Mother's cognitive and emotional limitations, immaturity and impulsiveness, poor judgment, insight, and decision-making skills, poor parenting skills, and her inability to keep herself safe. Sciartelli also referred to Father's behavior in blaming others for his difficulties and refusing to take responsibility for his own actions. Sciartelli believes that Father does not participate in programs requiring an extended effort or change on his part. Sciartelli reported that W.P. is in need of a permanent, safe, and stable home environment, and she recommended that W.P. be placed in the permanent custody of CSB. {¶ 43} With respect to the finding as to whether W.P. cannot be placed within a reasonable time or should not be placed with the parents, the juvenile court found that Mother, because of chronic mental or emotional illness, mental retardation, physical disability, or chemical dependency, is unable to provide an adequate permanent home for W.P. at this time and, as anticipated, within one year. The court further noted that Mother had her parental rights involuntarily terminated with regard to a sibling of W.P. in 1999. The court found that Father has repeated failed to substantially remedy conditions which caused placement outside the home and he has failed to demonstrate the ability to appropriately parent the child. The court also addressed the history of Father's domestic violence against Mother. While the court noted that the couple complied with their respective case plan objectives by completing a thirteen-week parenting class and regularly attending supervised visitations with W.P., the court also noted that the couple failed to recognize the potential for domestic violence in the home. The court found that Father had not been receptive to counseling for mood or anger management and domestic violence coping skills recommended by Dr. Hickin, nor was Father receptive to joint counseling with Mother as recommended by CSB. {¶ 44} Given the testimony and the evidence presented, we cannot say that the trial court erred in finding, by clear and convincing evidence, that W.P. cannot be placed with either parent within a reasonable time or should not be placed with either parent. {¶ 45} Although Mother does not directly challenge this prong of the statutory test, she asserts that the grant of permanent custody to CSB was erroneous because she substantially complied with her case plan. Substantial compliance with a case plan, in and of itself, does not prove that a grant of permanent custody to an agency is erroneous. In reWatkins (Aug. 30, 1995), 9th Dist. No. 17068. R.C. 2151.414(E)(1) "indicates that if the agency conducts `reasonable case planning and diligent efforts' to assist the parents in resolving the conditions which caused the initial removal of the children and the parents fail to substantially remedy those conditions, then the court is required to find that the child cannot be placed with the parents within a reasonable time." In re Jones (Apr. 17, 2002), 9th Dist. No. 20766. See, also, R.C.2151.414(E)(1). R.C. 2151.414(E) does not require the agency to use reasonable and diligent efforts in all cases. In this case, the juvenile court found that Mother's parental rights were terminated concerning a sibling of W.P. Therefore, R.C. 2151.414(E)(11) applied to Mother in addition to any other factor under R.C. 2151.414(E). Because there was an additional basis under R.C. 2151.414(E) upon which the trial court determined that W.P. could not be placed with Mother within a reasonable time or should not be placed with Mother, we need not consider the effect of Mother's compliance with the case plan and the application of R.C.2151.414(E)(1). See In re Jones, supra. {¶ 46} In considering the best interests of W.P., the court found that W.P. is in need of a legally secure permanent placement, and such placement cannot be effectuated without a grant of permanent custody to CSB. The court found it is in the child's best interest to be placed in the permanent custody of CSB. In making this determination, the court relied on the recommendations of the guardian ad litem, who recommended permanent custody be granted to CSB. The court also discussed the relationships between W.P. and his parents and foster caregivers, and the fact that Mother's parental rights were terminated with regard to a sibling of W.P. Clear and convincing evidence exists to support the trial court's determination that the grant of permanent custody to CSB was in W.P.'s best interest. Therefore, we cannot say that the trial court erred in its decision. {¶ 47} Given the testimony before the juvenile court, we cannot say that the court erred and created a manifest miscarriage of justice when it terminated Mother's and Father's parental rights and awarded permanent custody to CSB. Mother's three assignments of error and Father's sole assignment of error are overruled. III. {¶ 48} Having overruled the assignments of error, we affirm the judgment of the Summit County Court of Common Pleas, Juvenile Division. SLABY, P.J., WHITMORE, J. CONCUR. 1 We note that the magistrate's decision refers to two additional witnesses, Cynthia DeVane and Judith Allen. However, the transcript of proceedings that was filed with the trial court contains no such testimony. We further note that several exhibits referred to in the transcript and in the magistrate's decision are not a part of the record before us, and some exhibits that are in the record are not referred to in the transcript, or are referred to as different numbers. Moreover, the transcript of the permanent custody hearing does not contain a motion on behalf of the state to admit the state's exhibits into evidence. It is also evident upon review of the transcript that some exhibits were missing at the conclusion of the hearing. The magistrate allowed the parties seven days within which they could file the exhibits, yet the record and docket contain no such indication that these missing exhibits were ever filed with the court. The trial court does not refer to any of the exhibits in its judgment entry; therefore, we assume that the record before the trial court is the record we have before us.

2016-07-06 06:42:21.276184+00

OPINION Defendant-appellant, Tiffnie Keller, appeals her conviction for perjury. We affirm. On August 15, 1995, appellant testified at a child support hearing on behalf of her daughter, Sierra Keller. In response to questions concerning her employment, appellant stated that, except for a short period during March 1995, she had not been employed since January 1994. Appellant also stated that she was not employed "at this time." Based upon these statements, appellant was indicted for perjury in violation of R.C. 2921.11. A jury trial on the perjury charge was held on May 22, 1997. At the trial, Vincent McKee testified that he hired appellant on June 13, 1995, to care for his infirm wife. McKee stated that he paid Keller $6.50 per hour and issued her a check each week for the work she performed, for a total of $754 in June 1995 and $751.75 in July 1995. Eight of McKee's cancelled checks made payable to Tiffnie Keller were entered into evidence.1 McKee testified further that on July 28, 1995, he fired appellant and hired another caretaker. That situation did not work out, and McKee rehired appellant "a few days after" the date of August 11, 1995 at the rate of $6.75 per hour. McKee testified that from mid-August on he paid appellant in cash. When asked to explain why, McKee replied: "[H]er mother suggested it * * * she thought that she should not have a record of it." McKee stated that he withdrew $1,000 in cash from his bank account on August 17, 1995 and on September 15, 1995, and that he paid appellant approximately $750 from each of those withdrawals. Jewell Dilley, appellant's grandmother, testified that she worked for the McKees two to three days a week during June and July 1995 and that on the other days of the week, "Tiffnie would work." Gayle Denen, Chief Deputy Clerk for the Fayette County Probate and Juvenile Courts, testified that she recorded the hearing and prepared the transcript in which appellant stated under oath that she was not working and that she had not been employed since January 1994. Kelly Elliot, an investigator at the Fayette County Child Support Agency, testified that based on appellant's August 15, 1995 testimony, Sierra's father was obligated to provide one hundred percent of Sierra's child support. According to Elliot, if appellant's income were annualized based on the payments made to her by McKee in June and July 1995, appellant would have been responsible for 54.87 percent of Sierra's child support. Appellant testified that she did not mention "helping out" Vincent McKee when she was asked about her employment at the August 15, 1995 hearing because she "did not consider what [she] was doing at Mr. McKee's a job." Appellant stated that she began working for the McKees after her mother received a phone call from Mr. McKee. Appellant's mother told McKee that appellant was not working and that she might be able to help him out. Appellant then met with Mr. McKee who asked her what the going rate of pay was. Appellant testified that she began spending time at the McKees for which Mr. McKee paid her by check on approximately a weekly basis. According to appellant, Mr. McKee did not pay her hourly, instead he "paid [her] what he felt he wanted [her] to have." Appellant stated: I never considered Mr. McKee as a boss. Mr. McKee and I did a lot of things together. He would want me to come out to go to lunch, he would want me to come out and just sit and talk with him over lunch, I would cook his lunch and he would write me a check at the end of the week. Despite this casual arrangement, appellant stated that she kept track of the hours she spent at the McKees. Eventually, she asked for and received a written reference from McKee in which he stated that appellant "was employed by me" beginning in June 1995. As to the state of her employment on August 15, 1995, appellant testified that on Sunday, August 6, 1995, she told McKee that she had called off her wedding, had a bad migraine headache, and could not come to his home the next day. Appellant then arranged for her grandmother to take care of Mrs. McKee. Appellant stated that she "never went back to work" at the McKee home. Appellant denied receiving cash payments from McKee in August and September. After hearing the evidence, the jury found appellant guilty of perjury. Appellant filed this appeal. In a single assignment of error, appellant contends that there was insufficient evidence to support her conviction. The crux of appellant's argument is that her statement that she was not employed on August 15, 1995, was contradicted only by McKee's testimony and was not corroborated by any other direct or circumstantial evidence. Appellant relies on R.C. 2921.11(E) which states: No person shall be convicted of a violation of this section [perjury] where proof of falsity rests solely upon contradiction by testimony of one person other than the defendant. McKee did not expressly testify that appellant was in his employ on August 15, 1995. Moreover, no other witness statement nor documentation appears to provide unequivocal support for this proposition. However, even in the absence of clear proof on this single point, other statements made by appellant on August 15 support her conviction for perjury. R.C. 2921.11 prohibits any person in an official proceeding from knowingly making a material false statement under oath. A false statement is material if it "can affect the course or outcome of the proceeding." R.C. 2921.11(B). At the August 15, 1995 hearing, appellant testified that she had not been employed since 1994. McKee's testimony, the cancelled checks from June through August 1995, appellant's grandmother's testimony, and even appellant's own testimony that she was paid on a weekly basis after she performed certain chores for the McKees, provide sufficient evidence that when appellant testified at the child support hearing that she had not worked since January 1994, she made a false statement under oath at an official proceeding. Elliot's testimony that appellant's statement greatly altered her child support obligations provides sufficient evidence that appellant's statement was material. "[A]n 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." State v. Jenks (1991), 61 Ohio St.3d 259, 273. A conviction will not be disturbed unless the reviewing court finds that "reasonable minds could not reach the conclusion reached by the trier of facts." Id. In light of the foregoing, we find that the evidence presented at trial was sufficient to support appellant's conviction for perjury. The assignment of error is overruled. Judgment affirmed. YOUNG, P.J., and KOEHLER, J., concur. 1 The date/amount of each check is as follows: (1) June 16, 1995/$221.00; (2) June 23, 1995/$276.25; (3) July 3, 1995/$256.75; (4) July 10, 1995/$110.50; (5) July 14, 1995/$221.00; (6) July 21, 1995/$261.00; (7) July 28, 1995/$159.25; (8) August 4, 1995/$295.75.

2016-07-06 06:42:21.45663+00

OPINION *Page 2 {¶ 1} Defendant-appellant, Johnny Deloach, appeals the decision of the Richland County Court of Common Pleas to impose a prison sentence after he pled guilty to and was convicted of one count of violation of a protective order, a felony of the fifth degree. {¶ 2} Appellant raises a single Assignment of Error: {¶ 3} "I. THE TRIAL COURT COMMITTED REVERSABLE [SIC] ERROR WHEN IT FAILED TO MAKE A FINDING THAT GIVES IT'S [SIC] REASONS WHY THE IMPOSITION OF COMMUNITY CONTROLLED SANCTIONS WERE NOT THE APPROPRIATE SENTENCE FOR THE DEFENDANT-APPELLANT'S CONVICITON OF A FELONY OF THE FIFTH DEGREE AND IN IMPOSING THE MAXIMUM SENTENCE ALLOWED." I. {¶ 4} Appellant argues the trial court erred when it sentenced him to prison instead of community control and in sentencing him to the maximum sentence for a fifth degree felony. {¶ 5} The appellant was indicted by the Richland County grand jury on one count of menancing by stalking, a felony of the fourth degree and one count of violation of a protective order, a felony of the fifth degree. The victim was appellant's estranged wife and the events leading to appellant's arrest occurred on Christmas Eve, 2006. Following discussions, the prosecution agreed to dismiss the charge of menancing by stalking in exchange for the appellant's plea to a violation of a protection order. On *Page 3 September 10, 2007, appellant entered a guilty plea to the charge of violation of a protection order. {¶ 6} A sentencing hearing was held on October 22, 2007. The trial court considered the presentence report, victim impact statement, the appellant's statement, and the appellant's brother's statement. Furthermore, the trial court considered appellant's lengthy misdemeanor criminal history and the testimony of appellant's pretrial supervision officer regarding appellant's conduct with a minor girl involving alcohol while he awaited sentencing in this matter. {¶ 7} The trial court stated: {¶ 8} "Mr. Deloach, you are a likable guy, but you are also dangerous to women. I see over and over again, I think this is at least your fifth arrest for violation of a protection order. It hasn't been just your current wife, but other women before her. {¶ 9} "You have six disorderly conduct convictions, obstructing official business, driving under the influence of alcohol two times, domestic violence, resisting arrest, intoxication, a prior conviction for violation of a temporary protection order, two other arrests which was amended from a violation of a TPO to one of the disorderly conduct convictions. So you have had experience with the system, and recently, especially when it comes to violating protection orders when people want to be away from you, you don't let that lay down. You are very ingenious and manipulative in getting information you want and going around the rules. This latest violation or arrest is an indication that you are not really willing to work by the rules, Johnny. {¶ 10} * * * *Page 4 {¶ 11} "[G]iven your past history of offenses of this type, your unrepentant manipulative nature and things, and your inability to follow the rules, I have no alternative but to give you a twelve month sentence in this case, and I am giving you a twelve month sentence." {¶ 12} Sentencing Hearing T. at 15-16. {¶ 13} After State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, appellate courts review felony sentences under an abuse of discretion standard. State v. Tharp, 5th Dist. No. 2007CA00050, 2008-Ohio-5557. {¶ 14} In Foster, the Supreme Court of Ohio concluded that trial courts have full discretion to impose a prison sentence within the statutory range. An abuse of discretion implies the trial court's attitude is "unreasonable, arbitrary or unconscionable." {¶ 15} In this case, appellant was sentenced after being convicted of a fifth degree felony pursuant to R.C. 2929.13(B). {¶ 16} He first contends that the trial court erred in sentencing him to prison rather than community control on the fifth degree felony. Appellant contends that a fifth degree felony presumptively calls for a community control sanction rather than imprisonment, and the trial court made no findings under R.C. 2929.13(B)(2) which would allow the court to sentence him to prison. {¶ 17} R.C. 2929.13(B)(1) provides that "in sentencing an offender for a felony of the fourth or fifth degree, the sentencing court shall determine whether any of the following apply: {¶ 18} "(a) In committing the offense, the offender caused physical harm to a person. *Page 5 {¶ 19} "(b) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon. {¶ 20} "(c) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon. {¶ 21} "(d) The offender held a public office or position of trust and the offense related to that office or position; the offender's position obligated the offender to prevent the offense or to bring those committing it to justice; or the offender's professional reputation or position facilitated the offense or was likely to influence the future conduct of other. {¶ 22} "(e) The offender committed the offense for hire or as part of an organized criminal activity. {¶ 23} "(f) The offense is a sex offense that is a fourth or fifth degree violation***. {¶ 24} "(g) The offender at the time of the offense was serving, or the offender previously had served, a prison term. {¶ 25} "(h) The offender committed the offense while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance. {¶ 26} "(i) The offender committed the offense while in possession of a firearm." {¶ 27} Then, under R.C. 2929.13(B)(2), if the court makes a finding described in R.C. 2929.139(B)(1)(a)-(i), and "after considering the factors set forth in section 2929.12 of the Revised Code, finds that a prison term is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code and finds that *Page 6 the offender is not amenable to an available community control sanction, the court shall impose a prison term upon the offender." {¶ 28} In Foster, supra, the Ohio Supreme Court addressed sentencing for fourth and fifth degree felonies. The Supreme Court analyzed R.C. 2929.13(B)(1) and (2), and found that "there is no presumption in favor of community control" and "the statute does not prevent a court from imposing a prison term without these findings." Id. at ¶ 69. The Supreme Court explained that "a judge who does not make one of the (B)(1) findings and does not find that community control is a sufficient sanction could still impose a prison term." Id. The court further explained in Foster that if the particular R.C. 2929.13(B) findings are not made, then "the judge is simply guided by the general principles of sentencing" in imposing sentence. Id. at fn. 91. Those include R.C. 2929.11, which specifies the purposes of sentencing, 1 and R.C. 2929.12, which provides guidance in considering factors relating to the seriousness of the offense and recidivism of the offender. In addition, the trial court is to be guided by statues that are specific to the case itself. See also, State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855. {¶ 29} Applying the above, appellant's argument fails as there is no presumption in favor of community control for fifth degree felonies. The record indicates the trial court did not make one of the (B)(1) findings and did not find that community control is a sufficient sanction. Therefore, the trial court had full discretion to impose a prison sentence within the statutory range, which is six to twelve months. R.C. 2929.14(A)(5). {¶ 30} The record also indicates that the trial court consider the applicable sentencing statutes. R.C. 2929.11, 2929.12. The trial court was aware of the *Page 7 appellant's history of criminal convictions, his likelihood to re-offend and the need to incarcerate appellant to deter him from future crimes, as well as his lack of remorse and manipulative personality. {¶ 31} In his second challenge to his sentence, appellant contends that the trial court did not make specific findings under R.C. 2929.14(C) and R.C. 2929.19(B)(2)(d) before imposing the maximum 12 month sentences. {¶ 32} In Foster, a paragraph seven of the syllabus, the Supreme Court held that "[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or given their reasons for imposing maximum, consecutive, or more than the minimum sentences." R.C. 2929.14(C) and R.C. 2929.14(B)(2), which required judicial fact finding were expressly held to be unconstitutional and were severed. Id. at paragraph one. {¶ 33} Appellant was sentenced post-Foster. Therefore, the trial court need not make any specific finding before imposing a maximum term within the statutory range for a particular felony. See also, State v.Hathy, 11th Dist. No. 2007-A-0057, 2008-Ohio-2614. {¶ 34} After reviewing the record, the trial court did not abuse its discretion when it sentenced appellant to prison for a maximum term rather than imposing community control. {¶ 35} Accordingly, appellant's single assignment of error is overruled. *Page 8 {¶ 36} The judgment of the Richland County Court of Common Pleas is affirmed. Delaney, J., Farmer, P.J. and Edwards, J. concur. *Page 9 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed to appellant. 1 "The overriding purposes of felony sentencing are to protect the public from future crimes by the offender and others and to punish the offender." R.C. 2929.11 *Page 1

2016-07-06 06:42:21.518654+00

DECISION AND JUDGMENT ENTRY This is an appeal from the judgment of the Washington County Court of Common Pleas, which found Defendant-Appellant Donald Barth to be a sexual predator. Appellant argues that the trial court erred in failing to find Ohio's sexual predator statute, R.C. Chapter 2950, to be unconstitutional. We affirm the judgment of the trial court. On May 20, 1992, appellant was convicted of two counts of rape, one count of aggravated burglary, and one count of attempted rape. On September 13, 1992, the trial court sentenced appellant to an aggregate term of five to twenty-five years in prison. On July 23, 1999, the trial court held a hearing pursuant to R.C. 2950.09 to determine whether appellant should be classified as a sexual predator. On August 2, 1999, the trial court filed a journal entry ordering that appellant be classified as a sexual predator. Appellant filed a timely notice of appeal and presents five assignments of error for our review. FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED, IN VIOLATION OF THE EX POST FACTO CLAUSE OF THE UNITED STATES CONSTITUTION, IN FINDING MR. BARTH TO BE A SEXUAL PREDATOR. SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED, IN VIOLATION OF THE CRUEL AND UNUSUAL PUNISHMENT CLAUSES OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 9, ARTICLE I OF THE OHIO CONSTITUTION, IN FINDING MR. BARTH TO BE A SEXUAL PREDATOR. THIRD ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, IN FINDING MR. BARTH TO BE A SEXUAL PREDATOR. FOURTH ASSIGNMENT OF ERROR: R.C. CHAPTER 2950, AS AMENDED BY H.B. 180, PROVIDES NO GUIDANCE AS TO HOW THE FACTORS IN R.C. 2950.09(B)(2) ARE TO BE CONSIDERED AND WEIGHED, RENDERING THE LAW VAGUE, IN VIOLATION OF THE DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION. FIFTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED, IN VIOLATION OF SECTION 1, ARTICLE I OF THE OHIO CONSTITUTION, IN FINDING MR. BARTH TO BE A SEXUAL PREDATOR, BECAUSE OHIO'S SEXUAL PREDATOR LAW IS AN INVALID EXERCISE OF THE POLICE POWER AND DEPRIVES INDIVIDUALS OF THEIR INALIENABLE AND NATURAL-LAW RIGHTS. All of appellant's constitutional arguments have been considered and rejected by either the Supreme Court of Ohio or this court. See State v.Cook (1998), 83 Ohio St.3d 404, 700 N.E.2d 570; State v. Williams (2000), 88 Ohio St.3d 513, 728 N.E.2d 342; State v. Howell (Sept. 28, 2000), Adams App. No. 99CA679, unreported. Indeed, appellant's brief, which was filed before Williams was released, concedes that Williams is dispositive of his constitutional arguments. Thus, for the reasons stated below, we overrule appellant's assignments of error and affirm the judgment of the trial court. I. In his First Assignment of Error, appellant argues that Ohio's sexual predator classification scheme, set forth in R.C. Chapter 2950, violates the Ex Post Facto Clause of the United States Constitution. The Supreme Court of Ohio rejected this same argument in Cook, supra, and found R.C Chapter 2950 to be constitutional. Pursuant to Cook, appellant's First Assignment of Error is OVERRULED. II. In his Second Assignment of Error, appellant argues that classifying an individual as a sexual predator constitutes cruel and unusual punishment, in violation of Section 9, Article I, Ohio Constitution, and the Eighth Amendment to the United States Constitution. The Supreme Court of Ohio has not specifically addressed the Eighth Amendment issue with respect to sexual predator classifications. However, the Cook court conducted an extensive analysis of the potential punitive effects of R.C. Chapter 2950 and found the statute to be remedial rather than criminal in nature. Given that the sexual predator classification scheme does not impose criminal punishment, we have previously determined that it does not constitute cruel and unusual punishment. See State v. Howell (Sept. 28, 2000), Adams App. No. 99CA679, unreported, citing State v.White (Nov. 5, 1999), Miami App. No 98-CA-37, unreported. Accordingly, appellant's Second Assignment of Error is OVERRULED. III. In his Third, Fourth, and Fifth Assignments of Error, appellant argues: (1) that R.C. Chapter 2950 violates the Double Jeopardy Clauses of the Ohio and United States Constitutions; (2) that R.C. 2950.09(B)(2) is unconstitutionally vague; and (3) that the sexual predator classification deprives individuals of "inalienable and natural law rights," in violation of Section 1, Article I, Ohio Constitution. The Supreme Court of Ohio rejected all of these arguments and found R.C. Chapter 2950 to be constitutional in Williams, supra. Pursuant toWilliams, appellant's Third, Fourth, and Fifth Assignments of Error are OVERRULED. The judgment of the Washington County Court of Common Pleas is AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and Appellee recover of Appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution. A certified copy of the entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Harsha, J., and Kline, J.: Concur in Judgment and Opinion. ___________________________ David T. Evans, Judge

2016-07-06 06:42:21.206209+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: Margaret McEaneney appeals the spousal support award rendered by the Summit County Court of Common Pleas, Domestic Relations Division, in its decree of divorce terminating Margaret's marriage to Dennis McEaneney. Dennis cross-appeals the court's spousal support award. I. Margaret and Dennis were married on November 14, 1979. Margaret was twenty years old at the time of the marriage, and Dennis was thirty-four. They have one child of the marriage, a son born on April 10, 1986. In July 1997, Margaret decided to leave the marital home, and moved in with her mother, because of Dennis' abusive behavior. On March 27, 1998, Dennis filed for divorce, charging Margaret with "abandonment, gross neglect of duty and extreme cruelty." Dennis requested custody of their son and child support from Margaret. A hearing was held before the trial judge on February 11, 1999. The following was presented by way of testimony and evidence. Dennis has a college degree and worked throughout the marriage as a newspaper reporter. Dennis earns over $50,000 per year, not including bonuses or overtime of up to almost $3,500 per year. Margaret does not have any education beyond high school, and she did not work at all for the first ten years of the marriage. Dennis encouraged her to be a full-time spouse and mother. One of Margaret's marital duties was to meet Dennis at a bar after work, where the couple consumed from "three to thirteen" drinks on each outing. Sometime in 1989, at Dennis' urging, Margaret began to tend bar two to three days a week. From 1989 to 1997, Margaret worked at three different bars, working two to three days a week. For the bartending jobs, Margaret received approximately $100 per week plus an unknown amount in tips. The bar owners who formerly employed Margaret testified that her work for them was in the nature of fill-in work, and was only part-time employment. After Margaret left the third bartending job, she worked occasionally helping a friend install drywall. This individual testified that he paid Margaret $10 per hour, but only employed her for about eighty-two hours in 1997. He testified that to do other construction work, she would need extensive training, and that she could never do more than minimal work in the drywall business because of the heavy lifting involved. Margaret also got seasonal work in department stores, which paid minimum wage. During the marriage, Margaret developed a problem with alcohol. Nonetheless, she continued to tend bar, and did not seek any treatment for her alcoholism. During the pendency of the divorce proceedings, Margaret went for court-ordered vocational evaluation. The vocational counselor noted in his report that Margaret came into the evaluation sessions smelling of alcohol, even for the session that began as early as 9 a.m. The counselor concluded, "I would be very surprised if she was able to get a starting job that paid more than $6-7/hour or $12,480-$14,580 annually." The report went on to say that Margaret would more likely only be able to secure part-time work, unless she received job training. Dennis disagreed with the vocational analysis, saying that Margaret could earn more than $13,000 per year because she was "too bright for that." Dennis testified that he was unwilling to pay for any re-training for Margaret, because the county offers free vocational training. He offered no support for this statement. During the separation, Dennis gave Margaret a lump sum of $5,000 for her living expenses. Margaret did not seek an interim spousal support award. Dennis filed evidence in support of his earnings, assets, and debts. There is no record before this Court of Margaret's estimated expenses except for her testimony that she anticipated her monthly expenses would be around $900 per month. At the time of the hearing, she was still living with her mother and was not paying rent. At the end of the hearing, Margaret's attorney requested that the court order spousal support of $1,000 per month, with the time and the amount of support subject to further modification by the court. Dennis' attorney requested that no spousal support be ordered, and that the property division, already worked out by both parties, remain intact. The trial court issued a divorce decree on March 17, 1999. The court awarded custody of their son to Dennis, and ordered Margaret to pay $182.37 per month in child support, based on imputed income of $16,640 per year. Dennis was ordered to pay Margaret spousal support of $800 per month for twelve months, which, with a set-off for the child support, would provide Margaret with $617.63 per month in support. Dennis was also required to pay Margaret's health insurance premiums for as long as his COBRA permitted, up to thirty-six months. Dennis retained the marital residence and a car, which were the primary assets in the marriage, as well as all the marital debts, which essentially resulted in a net negative allocation to Dennis of $11,000. Dennis' pension was divided evenly pursuant to a Qualified Domestic Relations Order. Both parties were ordered to pay their own attorney fees. No money was awarded to Margaret specifically to assist her in re-training for gainful employment. Margaret filed a timely appeal, asserting as error that the trial court abused its discretion in making a spousal support award without considering the factors listed in R.C.3105.18(C)(1). Dennis filed a cross appeal, assigning as error that the court abused its discretion when it awarded spousal support without equitably considering the marital debt which Dennis assumed. II. Margaret's Assignment of Error: The decision of the trial court ought to be reversed due to the error contained therein, to wit: The trial court erred in making the spousal support award where it refused to consider O.R.C. Section 3105.18(C)(1). R.C. 3105.18 sets forth the statutory factors that the trial court must review when "determining whether spousal support is appropriate and reasonable." R.C. 3105.18(C)(1). "Trial courts are required to apply these statutory factors and indicate in the final decree of divorce the underlying basis for the award in sufficient detail to enable an appellate court to determine whether the award was appropriate." Schneider v. Schneider (1996), 110 Ohio App.3d 487, 494, citing Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 96-97. "If the court does not specifically address each [R.C. 3105.18(C)(1)] factor in [its] order, a reviewing court will presume each factor was considered, absent evidence to the contrary." Schrader v. Schrader (Jan. 21, 1998), Medina App. No. 2664-M, unreported, at 5, citing Cherry v.Cherry (1981), 66 Ohio St.2d 348, 356. These factors are: The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.17.1 of the Revised Code; The relative earning abilities of the parties; The ages and the physical, mental, and emotional conditions of the parties; The retirement benefits of the parties; The duration of the marriage; 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; The standard of living of the parties established during the marriage; The relative extent of education of the parties; The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party; 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; The tax consequences, for each party, of an award of spousal support; The lost income production capacity of either party that resulted from that party's marital responsibilities; Any other factor that the court expressly finds to be relevant and equitable. R.C. 3105.18(C)(1). An award of spousal support is subject to the discretion of the trial court and will not be reversed absent an abuse of discretion. Schneider, 110 Ohio App.3d at 494. "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, citing State v. Adams (1980), 62 Ohio St.2d 151,157. Absent an abuse of discretion, 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. Margaret challenges the spousal support award of $800 per month for twelve months. She cites the following factors to justify a longer term award: the length of the marriage during which Margaret was caregiver to the minor child, the disparity between the parties' education and income potential, the improbability that Margaret will become self-supporting in the near future, her corresponding child support obligation, and the fact that Dennis at least contributed to Margaret's problem with alcohol. The trial court, in its Finding of Facts and Conclusions of Law, stated that it considered all the statutory factors, and it clearly dealt with many of the elements enumerated in R.C.3105.18(C). The court addressed the length of the parties' marriage, the disparity in their income, Margaret's lack of education or vocational training, Margaret's spotty employment history, her alcoholism, and its implication for her employment prospects. The trial court found that Margaret was "voluntarily underemployed" and attributed an income to her of $320 per week, or $16,640 per year, upon which her child support obligation was imposed. In its Findings of Fact and Conclusions of Law, the court said that "[o]ver the past decade [Margaret] has worked part time in bars and with a drywaller, never working more than 3 days per week and earning wages of $8-10 per hour, together with tips as a bar tender." However, this is not supported by the evidence before the trial court. The drywall installer paid Margaret $10 per hour but he only employed her for a total of eighty-two hours. He acknowledged that her ability to work in drywall was very limited due to the heavy lifting involved, and that she would need further training to do any construction work. Margaret worked "3 days per week" bartending, for which she was paid approximately $100 for thirty-two hours of work, or a rate of approximately $3 per hour, plus an unknown amount in tips. The imputed income of $16,640 annually would require earnings of $8 per hour, for forty hours a week, for fifty-two weeks per year. Thus, it appears that the imputed income is predicated on full-time employment status, which Margaret has not maintained in twenty years, and on an hourly wage level that she only earned on a very short-term basis. This income exceeds the $12,480-$14,580 annual income which the court-appointed vocational analyst concluded would be a very optimistic expectation. In fact, the analyst concluded that more likely Margaret could only secure part time minimum wage work, which would reduce the imputed income dramatically. Finally, the court stated that Margaret "has a * * * drinking problem that obviously has created problems for her in terms of * * * self[-]dependency, and employment. She needs counseling, professional assistance, and vocational direction." But the court did not make any finding that Margaret would be able to become self-supporting within twelve months even with the necessary supportive services. The evidence before the court indicated that after twelve months, Margaret would likely earn less than $12,480 to $14,580, from which she would be obligated to pay $2,188.44 annually in child support. This Court has found a spousal support award to be arbitrary "based on the lack of support in the record for the award made by the trial court[.]" Dilacqua v. Dilacqua (1993), 88 Ohio App.3d 48,60. In Dilacqua, the wife was working on an advanced degree, and the court's spousal support award appeared to be based on her ability to secure a higher income once the degree was attained. However, the court cited no evidence that the wife could achieve work in that field, or what income she would earn doing such work. Because the trial court in the instant case failed to substantiate that Margaret could achieve the level of income imputed to her or that she would be self-supporting within twelve months, we find that the spousal support award was arbitrary. Furthermore, "at the very least, equity requires that a party receive sufficient sustenance alimony to bring him or her to a reasonable standard of living, comparable to the standard maintained during the marriage." Addy v. Addy (1994), 97 Ohio App.3d 204,208, citing Buckles v. Buckles (1988), 46 Ohio App.3d 102 . Because after twelve months Margaret would be left with a gross income after child support of no more than $12,000, while Dennis would have over $50,000 in gross earnings for the support of two persons, we find that the award is unreasonable. We find that the trial court abused its discretion in making the spousal support award. Therefore we find that Margaret's assignment of error is well-taken. III. Dennis' Assignment of Error: The trial judge's ruling which did not equitably consider the marital debt that the Appellee-Cross Appellant has been allocated constitutes an abuse of discretion. Dennis asserts that the trial court failed to consider the marital debt which he assumed when it made the spousal support award, in violation of R.C. 3105.18(C)(1). During the trial, Dennis submitted to the court proposed stipulations as to the division of marital property, which Margaret's counsel stated involved Dennis' retention of the marital house and his assumption of "the outstanding marital debts as well as his own." Dennis asked the court to award no spousal support. Now he claims that the trial court did not consider the marital debt when making the spousal support award. We disagree. It is clear from the trial court's findings of fact and conclusions of law, that the court was aware of Dennis' assumption of the marital debt, the value of the marital residence, and the fact that Dennis gave Margaret $5,000 after the separation. The evidence before the court established that the marital debt was $66,000. Dennis was awarded the marital house, with a value of $55,000 and a $46,000 mortgage, which accounts for most of the marital debt. Essentially, Dennis has a house with no equity, a car with no equity, and an excess marital debt of $11,000. Because Margaret has no assets from the marriage, Dennis is $11,000 worse off than Margaret. Given the disparity between the earning potential of each party, the decision of the trial court to award spousal support despite Dennis' assumption of $11,000 of marital debt over and above the marital assets does not constitute an abuse of discretion. We overrule Dennis' assignment of error. IV. Because we have found that the spousal support award is unreasonable and arbitrary, the award will be vacated and the cause remanded to the trial court for a determination of the appropriate amount and duration of the spousal support required. Judgment reversed and cause remanded. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of 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 Appellee/Cross-Appellant. Exceptions. WILLIAM R. BAIRD, FOR THE COURT BATCHELDER, J., CONCURS. SLABY, J., CONCURS IN JUDGMENT ONLY.

2016-07-06 06:42:21.388756+00

This expedited matter comes for consideration upon both the record in the trial court and the parties' briefs. Appellant Laura Kashdan (hereinafter "Kashdan") appeals the judgment of the Columbiana Court of Common Pleas, Juvenile Division, granting permanent custody of Kashdan's minor children, Dillon Stephens (hereinafter "Dillon"), Ronald Stephens (hereinafter "Ronald"), and River Stephens (hereinafter "River") to the Columbiana County Department of Human Services (hereinafter "the Department"). The issues we must resolve are: 1) whether the trial court based its decision upon clear and convincing evidence; and, 2) whether Kashdan waived her right to challenge the merits in the instant case as they were not raised in her initial appeal. For the following reasons, we conclude that, although Kashdan did not waive her right to challenge the sufficiency of the evidence against her, her assignment of error still fails as the trial court's decision was supported by clear and convincing evidence. Accordingly, we affirm the decision of the trial court. On April 9, 1998, the Department obtained an ex parte emergency order from the trial court granting temporary custody of Dillon (age 4), Ronald (age 5), and River (age 3), to the Department. On April 10, 1998, the Department filed a complaint alleging the children were dependent. Custody was granted to the Department and a case plan was filed and adopted on June 4, 1998. The case plan called for Kashdan to: 1) obtain appropriate housing; 2) become involved with social activities; and, 3) use appropriate daycare for her children. A merits hearing was held on October 29, 1998 at which time the Guardian ad Litem (hereinafter "GAL") recommended the children be placed in the permanent custody of the Department. At this initial hearing, the trial court heard evidence from the Department, the GAL, and Kashdan herself. The GAL testified she investigated this matter to the best of her ability, however, she could not visit Kashdan's residence as she did not have a home at that time. The GAL further stated that she could not locate the father. The GAL explained that Kashdan had been at the Christina House for domestic violence for the previous three weeks and had also spent time in a shelter in Tuscarawus County where she was involved in AA. She was currently unemployed and homeless and had recently been incarcerated for both DUI and drug possession. Although the GAL conceded that Kashdan had made attempts to seek treatment, she testified this had only occurred in the month prior to the hearing. Ginger Wilzchak (hereianfter "Wilzchak"), an intake and assessment worker for the Department, testified that its involvement began when the Department received a call on April 9, 1998 from the Minerva Police Department. The three boys had been brought in by their thirteen year old babysitter. The youngest son had bruises on his bottom. The oldest son claimed his brother had been hit by the babysitter with a spoon. When the babysitter was questioned by the police, she could not inform them of Kashdan's whereabouts. At that time, Kashdan had been living at the Star Motel in Minerva and would usually not arrive home until two or three in the morning. Kashdan was employed as a dancer at a local club and had purportedly given the phone number of the club to the babysitter. Kashdan was formerly living in Texas with her two other biological children. Because they were homeless, the biological father requested that Kashdan move to Ohio. After the move, the biological father took custody of the two children and "threw her" and her three boys out of his house leaving them homeless. The Department then testified that social services from Carroll County had been trying to place Kashdan and her children in a homeless shelter. However, Kashdan did not want to move into the shelter because they would not allow her to keep her pet snake or iguana. Carrie Mitchell (hereinafter "Mitchell"), the foster care caseworker assigned to the case by the Department, testified that the goals of their case plan for Kashdan included: 1) housing issues; 2) social support; and, 3) daycare. Mitchell explained how they attempted to assist Kashdan in meeting these goals, however, she wasn't "real available for us * * * we weren't really sure where she was at * * * sometimes it was difficult to find out where was [sic] to know if she was coming back." At one point, Kashdan had obtained housing from a man who rented his home out to her. However, Kashdan reported she had moved to a shelter after this man had beaten her. In regards to Kashdan's visitation of her children, the Department testified that it was "sporadic at best." Kashdan visited her children eleven out of eighty-five scheduled visits. At one point, in fact, she had gone nearly a year without contacting her children. Due to her lack of visitation, the Department concluded Kashdan was not committed to the children. The Department also expressed concern over the lack of support exhibited by Kashdan. Specifically, Kashdan did not: 1) acknowledge birthdays; 2) pay support; 3) provide items for the children's care; 4) supply clothing for the children; 5) make phone calls to the children; and, 6) send letters. In regard to daycare, Kashdan similarly failed to meet the goal of the case plan. Mitchell testified that they would prepare a list of daycare providers in her area, but Kashdan failed to obtain housing. However, Mitchell did admit that Kashdan was looking into daycare at a church in Minerva. The Department again lost contact with Kashdan. They regained communication when an employee saw her name in a local newspaper and tracked her down in jail where she was serving time for three DUI convictions. When questioned about permanent placement of the children, Mitchell testified that the boys' current foster parents are licensed to adopt and would thus be able to keep all three boys together. The oldest son stated that he wants a place to stay and does not want to move anymore. Mitchell then testified it was important to provide the children with a stable environment as they had already been placed in four foster homes. Finally, Kashdan took the stand and testified that she was attempting to gain recertification as a nurse's assistant. Kashdan then explained how she has had problems with men and has sought help from the church in that regard. However, she admits that being in contact with inappropriate male figures is still a big issue in her life. She similarly admits that she has a problem with alcohol but is involved in AA. Kashdan testified that she has attempted to rectify her problems by attending church and by entering one of her sons in daycare. She also testified that she would soon be employed by the Alzheimer Center. Further, she explains that the only reason why she didn't visit her children is because she lost her driving privileges after her three DUI convictions. Kashdan served sixty days for the third DUI but never notified social services where to contact her during that time period. Kashdan testified she had a falling out with the social worker assigned to her case, and she had been told her children would be transported to her, but this was never carried out by social services. She later admitted that she only asked the social worker for a ride once but never bothered asking again. She explained that for eleven months she could not find transportation. She stated that even people from her church group refused to drive her to visit her children. In regard to her other two children, Kashdan testified that their father will not permit her to see them. While she was living with these children in Texas, they had been taken away from Kashdan by the court. When questioned about meeting the goals of the case plan, Kashdan admitted she was unsuccessful at finding suitable housing for her children but just needed more time. Kashdan also confessed that she has been employed solely as an "entertainer" at area nightclubs. She conceded it was possible that prostitution is involved at her place of employment. After hearing all the evidence, the trial court decided on November 15, 1998 to terminate Kashdan's parental rights. Kashdan timely appealed that decision to this court claiming the trial court could not exercise jurisdiction over her without first serving notice on the father. This court agreed and remanded the case for further proceedings in the case styled In re Stephens (May 17, 2001), 7th Dist. No. 00-CO-2. Upon remand, the trial court obtained jurisdiction over both Kashdan and the father. The trial court reheard the matter on September 27, 2001. At the second merits hearing, the trial court stated, "except for additional participation of the Father and his counsel, the transcripts prepared for the purpose of the appeal shall serve in lieu of repetitious testimony of the scheduled proceeding." Both parties then agreed to stipulate to the admission of the prior testimony. Notably, the trial court gave all parties the opportunity to offer additional testimony which would not have been a part of the original transcripts. At this second hearing, the GAL again recommended that the motion for permanency should be granted leaving the children available for adoption. The GAL explained its decision stating that Kashdan had not contacted her children for two years. Kashdan again took the stand and testified that she made one attempt to gain visitation with her children but then gave up trying. Kashdan further testified that she was residing at Lifeline in the Heritage Apartments and was employed as a waitress at the Ivystone. In its October 5, 2001 judgment entry, the trial court determined there had been no change in circumstances and once again elected to terminate Kashdan's parental rights. It is from that ruling that Kashdan filed an expedited appeal, with Kashdan submitting her brief on December 27, 2001 and the Department on February 15, 2002. Although no specific error is assigned in Kashdan's brief, it can be gleaned from her final statement, "it cannot be proven by clear and convincing evidence that the mother violated Revised Code 2151.414 (E)" that Kashdan is challenging the weight of the evidence. As a preliminary matter, we must first resolve whether Kashdan has waived that particular error in light of her original appeal. More specifically, the Department argues Kashdan should be barred from raising this assignment of error because it could have been brought to our attention in the original appeal. In support of its contention, the Department relies upon Ferguson v. Allied Anesthesia (May 16, 1999), 10th Dist. No. 88AP-483. In Ferguson, the Tenth District held: "Although plaintiffs maintain they would be placed in an `impossible dilemma' of either `waiv[ing] the procedural irregularity, or waiv[ing] the merits of the case,' that is not the case. Plaintiffs could have raised as error the procedural irregularity of finding `no just reason for delay' as applied to Allied, as well as the merits of the Allied case in that first appeal. Hence, plaintiffs' failure to raise the procedural irregularity as an error in the appeal resulted in waiver." Id. at 2. Similarly, the holding of In re Guardianship of Maunz (1991),77 Ohio App.3d 760, 603 N.E.2d 1045 determined, "Any assignments of error which could have been raised on the first appeal cannot subsequently be raised herein as they are barred by res judicata." See also Bosco v.Euclid (1974), 38 Ohio App.2d 40, 67 O.O.2d 209, 311 N.E.2d 870 and Knoxv. Knox (June 17, 1981), 3rd Dist. No. 14-80-11. In the first appeal, Kashdan's sole assignment of error claimed the trial court failed to acquire jurisdiction over the parties for the purpose of terminating parental rights, specifically the children's father. Although this Court held that Kashdan had received adequate notice, nonetheless she was prejudiced by the defective service upon the father, citing In re Call (Apr. 12, 2001), 8th Dist. No. 78376, at 4. InCall, the court determined: "A complaint for permanent custody leads to an adversarial proceeding which can deprive parents of all rights in their children. In re Miller, supra, at 190. To grant permanent custody, the court is required to find that the child cannot be returned to either parent. See R.C. 2151.414(E). Where one parent is unable to defend against this challenge, prejudice to the other parent is inherent. In re Sky Jones, (Nov. 22, 2000), Cuyahoga App. No. 76533, unreported. Specifically, in In re Sky Jones, this court held that a parent's potential retention of parental rights are prejudiced where the court fails to secure proper service and consider the other parent's defenses to the termination of parental rights. Here, the termination of Mr. Call's parental rights, made without a full adjudication of whether the child could be placed in the mother's potential custody, is inherently prejudicial to Mr. Call. As such, he may challenge the error committed against Mrs. Call and has standing to challenge the termination of his parental rights as void for failure of service upon Mrs. Call." Id. at 4. We sustained Kashdan's assignment of error and remanded the case to the trial court so the father could be properly served with notice of the permanency action. We must now determine whether the trial court's initial determination was void against both parents, or just against the party without notice, i.e. the father. It is well recognized that the right to raise a child is an "essential" and "basic" civil right. In re Murray (1990), 52 Ohio St.3d 155, 157,556 N.E.2d 1169, quoting Stanley v. Illinois (1972), 405 U.S. 645, 651,92 S.Ct. 1208, 31 L.Ed.2d 551. A parent's right to the custody of his or her child has been deemed "paramount." In re Perales (1977),52 Ohio St.2d 89, 97, 6 O.O.3d 293, 369 N.E.2d 1047. Permanent termination of parental rights has been described as "the family law equivalent of the death penalty in a criminal case." In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45. Therefore, parents "must be afforded every procedural and substantive protection the law allows." Id. Normally, under the doctrine of res judicata, "a valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, syllabus. However, unlike other types of actions, permanent custody actions require the court to look at the past, present and future when determining the child's best interests and whether the child can be placed with a parent or will be able to be placed with a parent within a reasonable time period. See R.C. 2151.414. The decision of In re Vaughn (Dec. 6, 2000), 4th Dist. No. 00CA692, followed the logic that, "Inasmuch as the juvenile court is vested with continuing jurisdiction to review and, if necessary, modify its dispositional orders, we conclude that res judicata does not prohibit the litigation of issues relevant to a motion for permanent custody even though the same or similar issues may have been considered in a prior action falling within the purview of R.C. Chapter 2151. In re Burkhart (Aug. 19, 1991), Butler App. No. CA90-07-146, unreported." Vaughn at 7. The Vaughn court further held, under R.C. 2151.414(D) and (E), the court is required to look at all relevant evidence in determining whether permanent custody is in the children's best interests and whether the children cannot be placed with their parents within a reasonable time period or should not be placed with their parents. To further the interests of the children, the court must consider any evidence available to it, including a parent's pattern of conduct. Some of the most reliable evidence for the court to consider is the past history of the children and the parents. Id. at 7. In light of the foregoing, we conclude the issue raised in the instant appeal would have been premature if raised in the first appeal. Significantly, the Call court found it unnecessary to reach the issues presented in the remaining assignments of error in light of its resolution of the first assignment of error, rendered moot in accordance with App.R. 12(A)(1)(c). This Court remanded Kashdan's first appeal based upon the same procedural defect complained of in Call. Thus, we also would have rendered moot any additional assignments of error Kashdan may have raised.Finally, R.C. 2151.414 mandates a finding that the child cannot be returned to either parent before the child is handed over to the permanent custody of the state. Consequently, any error based on the trial court's decision to terminate Kashdan's parental rights would not be ripe without the trial court first having jurisdiction over both parents. Accordingly, we hold Kashdan should not be barred from raising a manifest weight argument because this issue was not fully litigated in the prior case. We will now proceed to address Kashdan's sole assignment of error on its merits. Kashdan challenges the sufficiency of the evidence upon which the trial court terminated her parental rights. Termination of the rights of a birth parent is an alternative of last resort, but is sanctioned when necessary for the welfare of the child. In re Wise (1994),96 Ohio App.3d 619, 624, 645 N.E.2d 812, citing In re Cunningham (1979),59 Ohio St.2d 100, 105, 391 N.E.2d 1034. When a child is not abandoned or orphaned, permanent custody may be granted to a public children services agency under R.C. 2151.414(B) if the court determines by clear and convincing evidence that it is in the best interest of the child to grant permanent custody; and, the child cannot be placed with either parent within a reasonable time or should not be placed with the parents. In reBrofford (1992), 83 Ohio App.3d 869, 877, 615 N.E.2d 1120. Applying R.C. 2151.414(B), the trial court was required to consider all relevant factors in determining the best interest of the child, including, but not limited to, the following: "(1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; "(2) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child; "(3) The custodial history of the child * * *; "(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[.]" R.C. 2151.414(D). After making that initial finding, the trial court must next determine that the child cannot be placed with either parent within a reasonable time or should not be placed with the parents. In making that assessment, R.C. 2151.414(E) requires the trial court to consider all relevant evidence and to find that one of the circumstances provided for in the statute exist. Cf. In re William S. (1996), 75 Ohio St.3d 95,661 N.E.2d 738. These factors include: "(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. "(2) Chronic mental illness, chronic emotional illness, mental retardation, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code; "* * * "(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child; "* * * "(10) The parent has abandoned the child. "* * * "(13) The parent is repeatedly incarcerated, and the repeated incarceration prevents the parent from providing care for the child. "(14) The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect. "* * * "(16) Any other factor the court considers relevant." On October 5, 2001, the trial court chose to terminate Kashdan's parental rights. In making its decision, the trial court took into account several factors including testimony regarding the following: 1) Kashdan had been living in a motel with her children; 2) the thirteen year old babysitter was suspected of physical abuse; 3) Kashdan was employed as a dancer/entertainer; 4) Kashdan opted to keep a pet snake and iguana instead of accepting appropriate housing for her children; 5) the children have been in foster care for over three years; 6) the whereabouts of the father are unknown; 7) Kashdan has a long history of drug and alcohol abuse; 8) Kashdan has not visited her sons since October 19, 1999; 9) Kashdan has spent a great deal of time being rehabilitated and incarcerated for her multiple DUI convictions; 10)Kashdan has made virtually no progress on her case plan; 11) Kashdan visited her children only 11 times out of a possible 85; 12) Kashdan has failed to pay any child support; and, 13)it appears that adoption by the boys' current foster parents is very likely. The juvenile court, as the trier of fact, is to weigh the testimony and credibility of witnesses. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21,550 N.E.2d 178. When reviewing the juvenile court's judgment, we must determine from the record whether the trial court had sufficient evidence to satisfy the clear and convincing standard. Wise, supra. Clear and convincing evidence requires that the proof "produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of syllabus; see, also, In re Adoption of Holcomb (1985),18 Ohio St.3d 361, 481 N.E.2d 613. "The standard of review for weight of the evidence issues, even where the burden of proof is `clear and convincing,' retains its focus upon the existence of `some competent, credible evidence.'" Hawn v. Pleasant (June 1, 1999), 4th Dist. No. 98CA2595, citing State v. Schiebel (1990),55 Ohio St.3d 71, 74, 564 N.E.2d 54. Therefore, when reviewing awards of permanent custody to public children services agencies, judgments supported by some competent, credible evidence must be affirmed. In reThomas (Mar. 9, 2000), 8th Dist. Nos. 75330, 75331 and 75332; In re Rowe (Jan. 30, 1998), 4th Dist. No. 97CA2529. Once a court determines, by clear and convincing evidence, that one of the enumerated factors exists, the court must enter a finding that the child cannot or should not be placed with either of his parents within a reasonable time. In re Shanequa H. (1996), 109 Ohio App.3d 142,671 N.E.2d 1113; In re Higby (1992), 81 Ohio App.3d 466, 611 N.E.2d 403. After weighing the testimony in the present case, the trial court determined: "It is in the best interest of these children to grant permanent custody to the Columbiana County Department of Human Services because these children have been abandoned by their father and nearly so by their mother. These children should not be placed with either of their parents, neither of whom have shown any interest in them. The parents have shown a lack of commitment to their children by failing to provide a suitable home, food, clothing, attention, and medical care. As even the oldest of these children have expressed, all three of these children are in need of a legally secure placement and that type of placement cannot be achieved without a grant of permanent custody to the Columbiana County Department of Human Services." (Judgment Entry) With this judgment entry, the trial court determined: 1) it was in the best interest of the children to terminate parental rights; and, 2) the children could not be placed with either parent within a reasonable time or should not be placed with the parents. We find both determinations to be based upon some competent credible evidence that meets the level of clear and convincing evidence. Kashdan's assignment of error is meritless. The judgment of the trial court granting permanent custody to the Department is affirmed. Donofrio, J., and Waite, J., concur.

2016-07-06 06:42:21.689793+00

OPINION {¶ 1} Augustus T. Franklin, pro se, is appealing the decision of the Court of Common Pleas of Greene County, Ohio, overruling his motion to withdraw his guilty plea. {¶ 2} Partly because Franklin's appeal is pro se, and the record in this case is over seven years old, the statement of the case and the facts are difficult to discern. However, the statement of the case is supported by the record submitted to this court and we set forth it here from the brief of the appellee. Thus, on July 1, 1998, appellant Franklin was indicted by the grand jury of Greene County, Ohio, on four counts of rape of a child under thirteen years with force, and one count of rape with force, and on March 1, 1999, he entered a petition to enter a plea of guilty before the trial court. As part of the plea agreement between the State of Ohio and appellant, he entered a guilty plea, in the context of an Alford plea, to all five counts and the State did not oppose concurrent life sentences. Subsequently, he was sentenced to four concurrent life sentences. The appellant signed the plea agreement and acknowledged, on the record, that he understood what he was signing and that he was not coerced into the plea agreement. {¶ 3} Later, on November 29, 1999, appellant filed a motion to withdraw his guilty plea, alleging that the State had breached its plea agreement because the court ordered him to pay restitution costs. On the same date, he filed a pro se notice of appeal to this court which subsequently affirmed his conviction and sentence but vacated the trial court's sexual offender classification and remanded it for a hearing on that issue only. Subsequently, the appellant has been found to be a sexually oriented offender by the trial court and on May 14, 2002, he filed a motion for a new trial. The trial court denied the motion on July 19, 2002, and on appeal this court affirmed the decision of the trial court and suggested that although appellant could not find relief for his motion for a new trial, a more appropriate vehicle for resolving the issue would be for the trial court to hear the appellant's motion to withdraw his guilty plea. Subsequently, on December 7, 2004, Judge Wolaver of the Greene County Court of Common Pleas issued a written decision overruling appellant's motion to withdraw his guilty plea. It is from this decision that appellant now brings this appeal. {¶ 4} To fully understand this case, we find it necessary to set forth the judgment entry of Judge Wolaver in its relevant portions, as follows: {¶ 5} "The Defendant, both Pro Se and through counsel, filed Motions to withdraw his plea after the Defendant had been sentenced in the above captioned case on May 12, 1999. The Motions consist of several branches. The Court held a hearing on Defendant's Motion on November 12, 2004 with the Defendant represented by counsel and the Court taking testimony in support of the Defendant's Motion. {¶ 6} "The Court is guided by Ohio Criminal Procedure Rule 32.1 that directs that a plea of guilty may be withdrawn after sentencing only to correct a manifest injustice. A manifest injustice occurs when the Defendant demonstrates that he would not have otherwise entered the plea had he known the information of which the Court failed to inform him. State v. Nero (1990),56 Ohio St.3d 106. The burden rests with the Defendant to establish the manifest injustice necessary to require the Court to withdraw his former plea of guilty. State v. Xie (1992),62 Ohio St.3d 512. {¶ 7} "The Court will address each branch of the Motions filed by the Defendant and counsel accordingly: {¶ 8} "THE TRIAL COURT DID NOT ADEQUATELY PERFORM THE PLEA COLLOQUY UNDER THE CONFINES OF AN ALFORD PLEA. {¶ 9} "The Court finds the Defendant plead guilty on March 1, 1999 under the mandates of an Alford plea created by the case of Alford v. North Carolina (1991), 400 U.S. 25. The nature of the Alford plea was one in which the Defendant entered his plea of guilty linked with claims of innocence as to the offense itself. However, the United States Supreme Court permitted this Court to accept the plea as long as the Defendant voluntarily and intelligently concluded that his best interest required a guilty plea and further that the record establish sufficient facts to evidence the Defendant's guilt. Further, it is incumbent upon the Court to discern the reasonableness of the Defendant's decision to enter a plea of guilty under the circumstances. {¶ 10} "The Defendant claims that the trial Judge did not evaluate the reasonableness of his decision to plead guilty and did not have sufficient facts in order to accept the plea. {¶ 11} "In addressing this issue, the Court has reviewed the transcript of the plea hearing. {¶ 12} "The Court finds of great significance the statement made on the record by the attorney for the Defendant regarding the Defendant's reason for entering an Alford plea. That statement is as follows: {¶ 13} "MR. LENNON: Your Honor, if I may, and I have informed the Court of this, my client is entering a plea of guilty today. He is maintaining his innocence. However, he believes that be [sic] entering a plea of guilty and to get a concurrent life sentence as opposed to consecutive life sentences, he can't take the chance of that happening. He understands the evidence he has against him, but with the Police Department and the victim testifying, he feels he does not, despite my advice, want to risk this case to a jury and would rather make this, what we would call an Alford plea at this point, maintaining his innocence, however not taking the chance of consecutive life terms. {¶ 14} "So, he is prepared to enter a plea of guilty today, but I at least wanted to give the Court some basis, knowing that it is his reason for doing it. I have advised him to take the case to a jury, to let them decide. My client, for his reasons which I won't dispute, believes that he is best at this point served by entering an Alford plea in doing what he can to avoid a consecutive life term based on what is confronting him today. {¶ 15} "It's [sic] that correct, Mr. Franklin? {¶ 16} "THE DEFENDANT: Yes, sir. {¶ 17} "From this statement on the record it is quite clear as to Defendant's motivation and the reason why he wished to dispose of his case pursuant to an Alford plea. This Court finds that the reasoning is appropriate and within the general requirements of an appropriate Alford plea. Thus, this Court finds that the trial Judge had ample reason to evaluate the reasonableness of the Defendant's decision to plead guilty despite his protestation of innocence and that such reasoning is appropriate under the Alford test. {¶ 18} "Further, the Defendant suggests that the statement of facts on the record are insufficient to evidence the Defendant's guilt. {¶ 19} "The Court will not recite the statement made by the Prosecuting Attorney on the record. However, a review of the transcript clearly indicates that the Prosecuting Attorney established every element of the offense further establishing the Defendant's conduct as to each count. Again, the statement of facts were sufficient for the trial Court to determine that there was sufficient basis of the Defendant's guilt. Furthermore, the Court inquired of the defense as to whether they were satisfied as to the status of the record after the statement of facts was made and counsel for the Defendant responded in the affirmative. {¶ 20} "Therefore, this Court finds that the trial Court complied with all the mandates of the Alford plea and that the Defendant has failed in his burden to establish anything to the contrary. This branch of the Defendant's Motion to Withdraw is OVERRULED and DENIED. {¶ 21} "THE PLEA OF MR. FRANKLIN WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED IN AS MUCH AS THE TRIAL JUDGE DID NOT COMPLY WITH CRIMINAL RULE 11. {¶ 22} "The Defendant indicates that he should be entitled to withdraw his plea because during the plea colloquy the Court did not specifically advise him under Criminal Rule 11 that upon acceptance of the plea the Court could proceed with judgment and sentence. {¶ 23} "A review of the transcript will indicate that the Court did not specifically indicate to the Defendant that the Court could proceed to sentence and judgment immediately following the plea. The Court instead ordered that a pre-sentence investigation would be conducted by the Greene County Adult Probation Department and that it would come on for report and final disposition at 9:15 a.m. on the 17th day of April, 1999. The transcript further indicates that counsel for the Defendant did not object or otherwise request the Court to immediately proceed with sentence and judgment. Further, the Judgment Entry prepared at the time of the plea and filed on March 1, 1999 and signed by the Defendant indicates that the Court could proceed with judgment and sentence immediately and had informed the Defendant of the rights which he/she will waive by entering this plea. {¶ 24} "While literal compliance with Criminal Rule 11 is certainly the preferred practice, the fact that the trial Judge did not do so does not require vacation of the Defendant's guilty plea if the reviewing Court determines that there was substantial compliance. Nero, supra. {¶ 25} "Substantial compliance means that under the totality of the circumstances the Defendant subjectively understands the implications of his plea and the rights he is waiving. State v.Carter (1979), 60 Ohio St.2d 34. Furthermore, a Defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently and voluntarily made must show a prejudicial effect. State v. Stewart (1977), 51 Ohio St.2d 86. The test is whether the plea would have otherwise been made. {¶ 26} "The Defendant does not suggest to this Court in his Motion that had he known the Court could have proceeded to sentence and judgment would have resulted in him choosing not to enter his plea. During the plea the Court indicated the matter would be set for another sentencing date and the Defendant made no objection. Also, the Defendant at the hearing on his Motion to withdraw his plea did not state that had he known that the Court could have proceeded to sentence and judgment it would have affected his decision to plead or in any other form had any prejudicial effect upon him. Finally, the same day that the plea took place the Defendant, in fact, signed a Judgment Entry which indicated that the Court could proceed to sentence and judgment. At the sentencing date the Defendant did receive concurrent sentences which is what he wanted by virtue of disposing the case pursuant to an Alford plea. The Court finds no prejudice in this process. {¶ 27} "Contrary to the position of the Defendant there is no requirement of scrupulous compliance with Criminal Rule 11. In regard to non-Constitutional rights, substantial compliance is only required. See Nero, supra. {¶ 28} "The Defendant does not need to be informed in the exact language to be meaningfully informed of the circumstances regarding his plea. Rote recitation of Criminal Rule 11 is not required. State v. Ballard (1981), 66 Ohio St.2d 473. Substantial compliance means that under the totality of the circumstances the Defendant subjectively understands the implications of his plea and the rights he is waiving. The Court should not focus on whether the trial Court recited the words of Criminal Rule 11, but rather on whether the record shows that the trial Court explained or referred to the right in a manner reasonably intelligible to that Defendant. See Ballard, supra at 480. {¶ 29} "This Court further has found precedent in other cases where the Court accepted a plea while the Court did not use the language of Criminal Rule 11C to indicate that the Court could proceed to sentence and judgment. In each case the Court of Appeals held that there was substantial compliance and that the plea was effective. State v. Brooks 10th District Court of Appeals, Case No.: 02AP-44, 2002-Ohio-5794, State v. Moore (May 26, 2000), 6th District Court of Appeals, No.: E-98-081,State v. Lewis (June 30, 2004) 6th District Court of Appeals, No.: E-02-048, 2004-Ohio-3444. {¶ 30} "Based upon the foregoing, this Court finds that the Defendant was not prejudiced by the plea colloquy, that there is no evidence that the Defendant would not otherwise have made his plea had he known this information. The Court substantially complied with the requirements of Criminal Rule 11. Therefore, this branch of the Defendant's Motion to withdraw his plea is not well taken and is OVERRULED and DENIED. "* * * {¶ 31} "THE DEFENDANT, PRO SE, CLAIMS HIS PLEA SHOULD BE WITHDRAWN DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL. THAT HIS ATTORNEY TOLD HIM THAT EVIDENCE COULD NOT BE USED TO SHOW THAT THE VICTIM HAD SEXUALLY TRANSMITTED DISEASE AND THE DEFENDANT DID NOT, THUS MAKING HIS PLEA INVOLUNTARY. {¶ 32} "The Court permitted the Defendant to provide extensive testimony regarding this particular position. The Defendant alleges that his attorney gave him bad legal advice regarding what evidence could be used in a trial and based upon that `bad' legal advice he entered his plea and would not otherwise have done so. The issue presented to the Court in this branch is whether or not his counsel gave him improper legal advice which affected the voluntariness, the intelligence, or the knowing aspect of the Defendant's plea. The Defendant alleges his attorney was ineffective for this reason. {¶ 33} "Ineffective representation by counsel may be grounds for vacating a guilty plea to the extent that the ineffectiveness makes the plea less than knowing and voluntary. State v. Talley (January 30, 1998), Montgomery App. No. CA 16479. {¶ 34} "The standard for ineffective assistance of counsel was enunciated in State v. Bradley (1998), 42 Ohio St.3d 136: {¶ 35} "Counsel's performance will not be deemed ineffective unless and until counsel's performance is proven to have fallen below an objective standard of reasonable representation and in addition, prejudice arises from counsel's performance. {¶ 36} "The test for vacating a guilty plea due to ineffectiveness of counsel is that but for counsel's errors, the Defendant would not have pled guilty but would have gone to trial. {¶ 37} "The first responsibility of this Court is to determine whether or not counsel made any errors. {¶ 38} "The Defendant testified at length as to his attorney's advice and further testified on cross examination that he did not write any of the statements taken by the Yellow Springs Police Department in which the Defendant admitted his conduct with the victim. The Defendant further indicated during cross examination that he was not advised of his constitutional rights and did not sign the waiver form. {¶ 39} "There was no testimony taken from Mr. Lennon, counsel for the Defendant at the time of his plea, nor was there any testimony that the victim in this case, in fact, did have a sexually transmitted disease. {¶ 40} "In making the determination as to the credibility of the Defendant's testimony, the Court has reviewed the file of this case and initially notes that the Defendant filed a Motion to Suppress on July 24, 1998 wherein defense counsel stated in his Memorandum that the Defendant signed the statements. Further, the Court notes the Judgment Entry of August 31, 1998 wherein after testimony was taken under oath, the Court made a finding that the Defendant made statements at the Yellow Springs Police Department, that they were voluntary, that he was fully and adequately advised his Miranda rights and the statements were properly taken and thus would not be suppressed. The Court further reviewed the Petition to Enter a Plea of Guilty which was signed by the Defendant wherein he acknowledged that he was satisfied with the advice his counsel had given to him, that he was fully informed by his lawyer of the facts and circumstances regarding the indictment. {¶ 41} "Further, in the plea transcript the Defendant said he was satisfied with his attorney. {¶ 42} "This Court frankly does not believe the Defendant to be credible. For some reason, unknown to this Court, the Defendant testified that he did not waive his rights, he did not make any statements, or make any admissions, and did not sign any of the statements for which he already had a hearing and the trial court made a finding of validity. This Court finds it very difficult to believe that his attorney, a very experienced counsel, said anything to him that prompted him to change his plea in light of counsel's statement at the plea. {¶ 43} "In the plea itself, counsel for the Defendant clearly indicated why the Defendant was entering his plea and the circumstances surrounding the Alford nature of his plea. The Defendant agreed. {¶ 44} "Indeed, counsel indicated that he was prepared to take the matter to trial, but it was his client who was choosing to enter his plea and dispose of the case under the circumstances set forth by the State. The Defendant did not say, in any manner, he was entering his plea only because he could not bring in certain forms of evidence. The Defendant had the full opportunity to do so and did not do that at that time. The only conclusion this Court can reach is that that was not the reason the Defendant was changing his plea. {¶ 45} "Thus, the Court finds that the Defendant has failed to credibly establish that his counsel was in any way ineffective and that the Defendant would not have pled guilty but would have gone to trial. Further, the Court finds that no prejudice at all has arisen from counsel's performance. The Defendant admitted in his statements to the police that he engaged in sexual intercourse with the victim and used protection. Whether or not any sexually transmitted diseases were present would be of no moment. The Defendant, even if believed, would not be prejudiced. See State v. Davis (November 5, 2004) 2nd District Court of Appeals Case No.: 2003 CA 87. {¶ 46} "Therefore, this branch is OVERRULED and DENIED. {¶ 47} "Based upon the foregoing the Defendant's Motion to withdraw his plea is OVERRULED in total. {¶ 48} "IT IS SO ORDERED." {¶ 49} The appellant's pro se brief does not set forth numbered assignments of error, as required by the rules of appellate procedure, but it appears to raise all of the issues dealt with by the Common Pleas Court in the aforestated decision except one that the court dealt with which is not on appeal and which is in the omitted portion of its decision as set forth above. Furthermore, as the State has pointed out in its brief, appellant's plea was an Alford plea and was knowing and voluntary in order to escape a more severe punishment and it was previously addressed by this court and is thus res judicata.State v. Franklin (Greene App. No. 2002 CA 77), 2003-Ohio-38131, at paragraph 10. {¶ 50} The appellant also complains that a witness he proposed to call was prevented from testifying because her testimony was ruled by the court to be hearsay. The record amply demonstrates that this witness would have been giving hearsay testimony, which is not admissible. {¶ 51} Finally, the defendant argues that his confession was not his own and had been attained by the police by coercion and it was not, in fact, his handwriting or his signature. The record amply demonstrates the falsity of this argument, as the trial court noted regarding credibility of the defendant, and that his confession was knowingly and voluntarily made as a result of anAlford plea bargain. {¶ 52} Appellant's assignments of error, if they can be justifiably called as such, are all overruled, and the judgment is affirmed. Fain, J. and Donovan, J., concur. (Hon. Frederick N. Young retired from the Second District Court of Appeals sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

2016-07-06 06:42:21.836294+00

JOURNAL ENTRY AND OPINION *Page 3 {¶ 1} Appellants-plaintiffs, Thomas C. Pavlik, d.b.a. Sindell, Rubenstein, Einbund, Pavlik, Novak Celebrezze and William J. Novak, d.b.a. Sindell, Rubenstein, Einbund, Pavlik, Novak Celebrezze (collectively "Appellants") appeal the trial court's granting of summary judgment in favor of defendant-appellee, the Home Insurance Company in Liquidation, fka the Home Indemnity Company ("appellee"). For the reasons set forth below, we affirm. {¶ 2} On May 17, 2005, appellee filed a complaint against appellants in the Cuyahoga County Court of Common Pleas entitled The Home InsuranceCompany in Liquidation v. Thomas Pavlik, et al., Case No. 562972 ("Case # 1"). In the complaint, appellee alleged breach of contract for appellants' alleged failure to pay a $25,000 deductible arising from a 1992 settlement reached in an underlying legal malpractice action against Pavlik and defended by a policy of professional liability insurance procured through appellee. {¶ 3} In Case # 1, appellants filed a motion to amend their answer to include a counterclaim on July 6, 2006. The trial court, on July 10, 2006, however, denied appellant's leave to amend noting appellants waited until six months after filing their answer and three weeks before trial to file the counterclaim. {¶ 4} Soon thereafter, in a judgment entry journalized on July 14, 2006, the court granted appellee summary judgment finding appellants entered into a contract with appellee and that appellants had an obligation under that contract to pay the *Page 4 $25,000.00 deductible. Accordingly, the trial court in Case # 1 awarded appellee said amount plus interest. {¶ 5} Consequently, appellants filed the instant action against appellee on July 13, 2006 ("Case # 2"). In this action, appellants alleged that appellee breached a contract of novation where the parties agreed that appellants were not required to pay the $25,000 deductible. {¶ 6} On September 19, 2006, in this case, Case # 2, appellee filed a motion to dismiss, which the trial court denied. Subsequently, on December 13, 2006, appellee filed a motion for summary judgment, which the trial court granted without opinion on February 2, 2007. {¶ 7} On March 1, 2006, the trial court in the previous case, Case # 1, entered a nunc pro tunc order noticing its inadvertent mistake of omitting co-defendant, William J. Novak, dba Sindell, Rubenstein, Einbund, Pavlik, Novak and Celebrezze to the judgment. Appellants then attempted to appeal the trial court's judgment awarding summary judgment, but it was dismissed as untimely and appellants' motion to reinstate/reopen a previous appeal of Case # 1, invoking App.R. 4(C), was denied. {¶ 8} Appellants now appeal the trial court's granting of summary judgment in favor of appellee in this case, Case # 2, and assert one assignment of error for our review. Their sole assignment of error states: *Page 5 {¶ 9} "The trial court erred to the prejudice of plaintiffs-appellants by granting defendant-appellee's motion for summary judgment." {¶ 10} Within this assignment of error, appellants assert that the trial court erred in granting appellee's motion for summary judgment because there are genuine issues of material fact. Appellants maintain that their breach of contract claim, Case # 2, is not barred by res judicata because at the time of the trial court's judgment in Case # 1, there was no final judgment entered regarding appellants' claims against appellee. Likewise, appellants contend the claims asserted in this case do not arise "out of the same transaction" as the claims asserted by appellee in Case # 1. We disagree and find that res judicata bars the instant action. {¶ 11} With regard to the entry of summary judgment, we note that we employ a de novo review in determining whether summary judgment was properly granted. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,1996-Ohio-336, 671 N.E.2d 241; Zemcik v. La Pine Truck Sales Equip.Co. (1997), 124 Ohio App.3d 581, 585, 706 N.E.2d 860. {¶ 12} Before summary judgment may be granted, a court must determine that "(1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party." Civ.R. 56(C); State ex rel. Dussell v. Lakewood PoliceDept, *Page 6 99 Ohio St.3d 299, 300-01, 2003-Ohio-3652, 791 N.E.2d 45, citing State exrel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191,1996-Ohio-326, 672 N.E.2d 654. {¶ 13} The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Zivich v. Mentor SoccerClub, 82 Ohio St.3d 367, 369-70, 1998-Ohio-389, 696 N.E.2d 201. Once the moving party satisfies its burden, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385,1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59,1992-Ohio-95, 604 N.E.2d 138. {¶ 14} With these principles in mind, we proceed to consider whether the trial court's grant of summary judgment in appellee's favor was appropriate. {¶ 15} Under the doctrine of res judicata, "`[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.'" State ex rel. Denton v.Bedinghaus, 98 Ohio St.3d 298, 301, 2003-Ohio-861, 784 N.E.2d 99, quoting Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331,653 N.E.2d 226, syllabus. Thus, a final judgment on the merits of an action precludes the *Page 7 parties from relitigating issues that were or could have been raised in that action. Trojanski v. George, Cuyahoga App. No. 83472,2004-Ohio-2414. Moreover, the doctrine of res judicata prohibits a collateral attack on an otherwise final judgment. Southridge Civic Assn.v. Parma, Cuyahoga App. No. 80230, 2002-Ohio-2748. {¶ 16} Applying these principles, we hold that the trial court correctly determined that this matter is barred by res judicata and appellee is entitled to judgment as a matter of law. Case # 1 involved the parties dispute concerning the $25,000 deductible and proceeded to final judgment which was neither vacated nor appealed and is a final and binding order. The instant complaint arises out of the same deductible which was the subject of the complaint in Case # 1 and seeks to relitigate the issues of the previous final judgment. Accordingly, the trial court correctly determined that this matter is barred by res judicata. {¶ 17} Additionally, its seems that appellants may be arguing that the effective date of the trial court's judgment in Case # 1 occurred after the trial court in Case # 2 determined res judicata barred the instant litigation. We disagree and find that the effective date of the trial court's granting of summary judgment was July 14, 2006, the date the judgment was originally journalized and not the date of the nunc pro tunc order that corrected an inadvertent mistake. {¶ 18} The sole purpose of a nunc pro tunc order by the trial court is to correct a clerical error in the prior recording of a judgment actually rendered, not to correct a mistake in judgment. State v.Coleman, 110 Ohio App. 475, 478-479, *Page 8 169 N.E.2d 703. Therefore, we find a nunc pro tunc does not operate to extend the period within which a judgment was entered. In applying this principle to calculating the time an appeal may be filed, courts have reasoned that nunc pro tuncs do not create or deny additional rights. See ThePerfection Stove Co. v. Scherer, 120 Ohio St. 445, 448-449,166 N.E. 376. We find that reasoning equally applicable here. Additionally, allowing for the correction of a non-substantive error in a judgment without extending the effective time of the judgment strikes an appropriate balance between the desire to bring litigation to summation and the desire that a judgment entry reflect the actual decision rendered. See Soroka v. Soroka (June 17, 1993), Cuyahoga App. No. 62739. {¶ 19} The period within which a judgment rendered should restart only when the trial court changes a matter of substance or resolves a genuine ambiguity in a judgment previously rendered. See State ex rel. Rue v.Perry, Cuyahoga App. 87810, 2006-Ohio-5320. "The relevant inquiry is whether the trial court, in its second judgment entry, has disturbed or revised legal rights and obligations which by its prior judgment had been settled with finality." Id. {¶ 20} In the instant case, the disparity in the judgments reflects an error in form, a clerical error, rather than error of substance. The trial court specifically stated, "The court inadvertently omitted co-defendant William J. Novak, dba Sindell, Rubenstein, Einbund, Pavlik, Novak and Celebrezze. In order to correct this omission, the court issues the following nunc pro tunc order. * * *). Additionally, a *Page 9 review of the record reveals that the omission of Novak from the entry was an error in form as all the pleadings and motions answered and responded to were filed by and received by both appellants. Therefore, we find that final judgment in Case # 1 was entered on July 14, 2006 and that the court's granting of summary judgment in this case was filed after that final judgment. {¶ 21} Accordingly, as appellants' claims in this case are barred by doctrine of res judicata, we find the trial court correctly granted appellee summary judgment. Judgment affirmed. It is ordered that appellee recover from appellants costs herein taxed. The court finds there were reasonable grounds for this appeal. 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. JAMES J. SWEENEY, A.J., and MARY EILEEN KILBANE, J., CONCUR. *Page 1

2016-07-06 06:42:21.869934+00

OPINION On September 27, 1988, appellant, James McFarland, and appellee, Edith McFarland, were married. Three children were born as issue of the marriage: Ariel, born April 11, 1989; Jacob, born September 26, 1991; and Morgan, born March 1, 1995. On October 10, 1996, appellee filed a complaint for divorce. Following hearings and subsequent objections, the trial court issued a judgment decree of divorce on August 14, 1998. The trial court named appellee as the residential parent of the children. Both parties filed post-decree motions. Appellee sought to have appellant be held in contempt for failure to pay certain bills and for obtaining unauthorized medical attention for the children. Appellant sought several things including an award of attorney fees and court appointed counsel. By judgment entry filed January 9, 2001, the trial court found appellant in contempt for non-payment of a veterinary bill and mediation fees. The trial court sentenced appellant to six days in jail, suspended on the condition of payment. The trial court revised the visitation orders and restrained appellant from seeking non-emergency medical care for the children. The trial court also provided guidelines for non-emergency communications between the parties. Appellant filed a pro se notice of appeal and this matter is now before this court for consideration. As appellant failed to list any assignments of error pursuant to App.R. 16(A)(3), we glean the following assignments from appellant's arguments: I THE TRIAL COURT'S FINDING THAT APPELLANT WAS IN CONTEMPT OF COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II THE TRIAL COURT ABUSED ITS DISCRETION IN NOT PERMITTING APPELLANT TO SEEK MEDICAL CARE AND TREATMENT FOR THE CHILDREN. III THE TRIAL COURT ABUSED ITS DISCRETION IN LIMITING ALL COMMUNICATIONS BETWEEN THE PARTIES TO WRITTEN FORM. IV THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING APPELLANT TO PAY COURT COSTS. V THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING APPELLANT TO PAY ATTORNEY FEES ASSOCIATED WITH APPELLEE'S FILING AND PROSECUTION OF THE CONTEMPT MOTION. VI APPELLANT OBJECTS TO VARIOUS FINDINGS AND STATEMENTS IN THE TRIAL COURT'S JUDGMENT ENTRY. Appellant's assignments of error challenge the trial court's finding of contempt, revision of the Loc.R. 19 visitation order and order on medical treatment for the children. Although appellant cites seven specific issues he has with the trial court's judgment entry of January 9, 2001, he did not follow App.R. 16(A)(3) in designating specific assignments of error. Instead, appellant raises issues for review. We will attempt, as did appellee's counsel, to formulate the issues into assignments of error. I Appellant claims the trial court's finding of contempt to be against the manifest weight of the evidence. We disagree. R.C. 2705.02(A) states a person may be punished for contempt for "[d]isobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or officer." A contempt finding may be civil or criminal in nature. In Brown v. Executive 200, Inc. (1980),64 Ohio St.2d 250, 253-254, the Supreme Court of Ohio discussed the distinction between civil and criminal contempt as follows: While both types of contempt contain an element of punishment, courts distinguish criminal and civil contempt not on the basis of punishment, but rather, by the character and purpose of the punishment. * * * Punishment is remedial or coercive and for the benefit of the complainant in civil contempt. Prison sentences are conditional. The contemnor is said to carry the keys of his prison in his own pocket * * * since he will be freed if he agrees to do as ordered. Criminal contempt, on the other hand, is usually characterized by an unconditional prison sentence. Such imprisonment operates not as a remedy coercive in its nature but as punishment for the completed act of disobedience, and to vindicate the authority of the law and the court. * * * (Citations omitted.) In the case sub judice, the trial court found appellant guilty of contempt and sentenced him to six days in jail, suspended on the condition of payment. This finding of contempt was civil in nature because although the trial court sentenced appellant to jail time, it provided a purge mechanism i.e., suspension of the jail time on the condition appellant pay the veterinary bill and the mediation fees; appellant had the "keys of his prison in his own pocket." To make a finding of civil contempt, the evidence must be clear and convincing. Brown at 253. This court will not reverse a finding of civil contempt absent a showing of an abuse of discretion. State ex rel,Ventrone v. Birkel (1981), 65 Ohio St.2d 10. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Further, a judgment supported by some competent, credible evidence will not be reversed by a reviewing court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978),54 Ohio St.2d 279. A reviewing court must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the judgment rendered by the trial court. Myers v.Garson (1993), 66 Ohio St.3d 610. In appellee's post-decree motion for contempt filed January 12, 2000, she requested the following: An order finding Defendant in contempt for his failure to pay debts, to abide by the visitation order, and for taking the children to health care professionals without the knowledge or consent of Plaintiff. An order requiring Defendant to provide all transportation regarding his visitation. An order restraining Defendant from calling Plaintiff on the phone in non-emergency situations. An order granting her attorney fees and litigation expenses. Appellant claims he cannot be held in contempt for failure to pay the veterinary bill and the mediation debt because the divorce decree did not set a specific date for when such payments were to be made. The debt allocation in the August 14, 1998 divorce decree was as follows: 9. DEBTS: The Defendant shall pay the utility bills associated with the former marital residence and save the Plaintiff harmless from any liability thereon. The Defendant shall pay 75 percent of the balance due on the Visa account and the Plaintiff shall pay 25 percent of such balance. This is based upon the Defendant's being awarded the refrigerator and mower. The Court finds this division to be appropriate as the balance of purchases above these items (that is sums above $698.00 of the balance) was for family household items. If the Plaintiff takes the refrigerator, then each party shall pay one half of the balance due on the Visa account. The Defendant shall pay the hauling bill, the bill for surgery for his dog and one half of the mediation bill. The Plaintiff shall pay the remaining half of the mediation bill. The divorce decree was filed on August 14, 1998, some seventeen months prior to the motion for contempt on non-payment. As noted by the trial court, appellant admitted that he had not paid these debts. Absent a specific time in the divorce decree as to when the debts were to be paid, the trial court imposed a standard of "reasonable length," and found seventeen months to be unreasonable: In resolving the remaining two debts, it is clear that the defendant was obligated to pay both the surgery on the dog and one-half the mediation bill. The Court finds the defendant's stance that since no time limit was imposed, the Court cannot find him in contempt. The Court finds that in determining the defendant's compliance with the order, the common standard of reasonable length of time is appropriate. For the defendant to have paid nothing on a $149.00 debt and a separate $30.00 debt that he was ordered to pay nearly 18 months earlier is equivalent to disobedience of a Court order. The Court finds the defendant in contempt and sentences him to six days in jail. The sentence is suspended upon the condition the defendant pays both of these debts within 30 days of the filing date of this entry.1 Given the admission of appellant that he did not pay the bills as ordered, we cannot say the finding by the trial court that a nearly eighteen month delay was unreasonable was an abuse of discretion. Upon review, we find the trial court did not err in finding appellant in contempt for failing to make payments as ordered in the divorce decree. Assignment of Error I is denied. II Appellant claims the trial court erred in modifying the divorce decree on the issue of medical treatment for the children. We disagree. Specifically, it appears appellant wants to be counseled on any medical treatment for the children. The divorce decree found appellee to be the residential parent. R.C. 3109.04(K)(2) specifically designates the residential parent as the person responsible for the "care, custody, and control" of the minor children: A parent who primarily is allocated the parental rights and responsibilities for the care of a child and who is designated as the residential parent and legal custodian of the child under an order that is issued pursuant to this section on or after April 11, 1991, and that does not provide for shared parenting has `custody of the child' and `care, custody, and control of the child' under the order, and is the `residential parent,' the `residential parent and legal custodian,' or the `custodial parent' of the child under the order. "Care, custody, and control" necessarily includes the right to control medical care. Raid v. Raid (1986), Montgomery App. Nos. CA 9589 CA 9732, unreported. In dicta in the judgment entry on the contempt, the trial court explained to appellant the status of the "residential parent" under Ohio law. In so doing, the trial court neither modified nor expanded the role of the residential parent given in the original divorce decree. Assignment of Error II is denied. III Appellant claims the trial court abused its discretion in ordering that he put all questions and concerns about the children in writing. We disagree. Trial courts have broad discretion in determining matters related to visitation. Appleby v. Appleby (1986), 24 Ohio St.3d 39; Blakemore. In its judgment entry filed January 9, 2001, the trial court ordered the following: The plaintiff's request that the defendant be restrained from phoning her concerning any non-emergency basis is problematic. The Court directs that if the defendant has a particular concern relating to the children, he must put it in writing and either mail it to plaintiff or deliver it at the time of the exchange. The plaintiff must call the defendant within a time span specified by the defendant but no later than 24 hours. Otherwise, the defendant shall NOT contact the plaintiff via the telephone except in an emergency involving the children. It is obvious the parties are having difficulties in communicating about the children. Trial courts in this state have the right to interpret and explain their own entries. Trifiletti v. Wolford (November 8, 2000), Lorain App. No. 99CA007513, unreported; Zbuka v. Zbuka (August 3, 1992), Stark App. No. CA-8800, unreported. Further, the very nature of the hearing was a contempt hearing to determine if appellant followed the trial court's orders. The trial court essentially expanded its own Loc.R. 19 visitation order. Upon review, we find no abuse of discretion. Assignment of Error III is denied. IV, V Appellant claims it was error for the trial court to assess court costs and attorney fees against him. We disagree. R.C. 3105.18(H) states the following: In divorce or legal separation proceedings, the court may award reasonable attorney's fees to either party at any stage of the proceedings, including, but not limited to, any appeal, any proceeding arising from a motion to modify a prior order or decree, and any proceeding to enforce a prior order or decree, if it determines that the other party has the ability to pay the attorney's fees that the court awards. When the court determines whether to award reasonable attorney's fees to any party pursuant to this division, it shall determine 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. An award of attorney fees pursuant to this section is addressed to the sound discretion of the trial court. Donese v. Donese (Sept. 29, 2000), Greene App. No. 2000-CA-17, unreported. In addition, "[a] trial court has discretion to include reasonable attorney fees as a part of costs taxable to a defendant found guilty of civil contempt." State ex rel. FraternalOrder of Police v. Dayton (1977), 49 Ohio St.2d 219, syllabus. In its judgment entry of January 9, 2001, the trial court awarded appellee $200 in attorney fees. Given the fact that appellant admitted to failing to pay as ordered by the trial court, we cannot find that the trial court abused its discretion in assessing attorney fees against appellant. As for costs, under Civ.R. 54(D), "[e]xcept when express provision therefor is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs." Upon review, we find the trial court did not err in assessing court costs and attorney fees against appellant. Assignments of Error IV and V are denied. VI Appellant claims the trial court erred in its wording in the judgment entry. We disagree. Appellant makes several arguments involving the trial court's statements regarding the Visa bill, the veterinary bill, the mediation fees, transference of a lawnmower, retention of the refrigerator, objections to the magistrate's decision and the parties' ability to communicate. We have reviewed each of these specific arguments and find them to be without merit. Assignment of Error VI is denied. For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Licking County, Ohio, Domestic Relations Division is affirmed. Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. concur. 1 The Visa bill was also at issue however, the trial court found said bill and its set-off for a refrigerator was not a basis for contempt. The trial court also found no basis for contempt in the visitation timing and scheduling, nor on the issue of medical treatment for the children.

2016-07-06 06:42:21.930096+00

DECISION AND JUDGMENT ENTRY {¶ 1} Relator, Christopher Elam, has filed a petition for writ of mandamus directing "Erie County Common Pleas Court, To Wit: Judge" to file findings of fact and conclusions of law. Relator requests that a final judgment be issued from which relator may appeal, as referenced by our judgment entry issued November 21, 2007, dismissing relator's appeal from the denial of postconviction relief, for lack of a final and appealable order. Relator's petition is facially flawed for two reasons. *Page 2 {¶ 2} First, the failure to properly caption a complaint for writ of mandamus requires dismissal. See Maloney v. Court of Common Pleas ofAllen Cty. (1962), 173 Ohio St. 226, 227. The civil rules, to the extent that they are applicable, govern mandamus actions. State ex rel. CosmosBroadcasting Corp. v. Brown (1984), 14 Ohio App.3d 376, 378; see, also, 6th Dist.Loc.App.R. 6. Civ.R. 10 specifies: {¶ 3} "(A) Caption; names of parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the case number, and a designation as in Rule 7(A). In the complaint the title of the action shall include the names and addresses of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties." {¶ 4} In this case, the caption on the document filed by relator does not comply with Civ.R. 10. Relator has failed to specify which judge against whom the writ has been filed or any address for purposes of service. Although we are aware relator has attached the judgment entry for which findings of fact and conclusions of law is required, without a specifically designated judge or address, the clerk would be unable to serve the writ, should this court issue an alternative writ. {¶ 5} Second, R.C. 2969.25 requires an incarcerated offender to attach to the complaint for a writ of mandamus an affidavit that describes each civil action or appeal filed within the previous five years in any state or federal court. Failure to comply with R.C. 2969.25 also warrants the dismissal of the complaint for a writ of mandamus. See *Page 3 State ex rel. Zanders v. Ohio Parole Bd. (1998), 82 Ohio St.3d 421;State ex rel. Alford v. Winters (1997), 80 Ohio St.3d 285, 286. {¶ 6} Relator has failed to attach an affidavit of all civil actions filed by him within the past five years as required by R.C. 2969.25. Therefore, relator's current application for writ of mandamus is defective on its face. {¶ 7} Accordingly, relator's petition for writ of mandamus is dismissed. Court costs of this action are assessed to relator. WRIT DENIED. Peter M. Handwork, J., Arlene Singer, J., William J. Skow, J., CONCUR. *Page 1

2016-07-06 06:42:21.988985+00

DECISION AND JUDGMENT ENTRY {¶ 1} This appeal is from the March 22, 2005 judgment of the Lucas County Court of Common Pleas, Juvenile Division, which awarded permanent custody of Jamilah P. to appellee. Upon consideration of the assignments of error, we affirm the decision of the lower court. Appellants, Amber P. and Richard M., parents of the minor child, assert the following assignments of error on appeal in a consolidated appeal: {¶ 2} "Assignment of Error No. 1: The trial court erred when it permanently terminated the parental rights of Amber P. as the decision was against the manifest weight of the evidence." {¶ 3} "Assignment of Error No. 2: The trial court erred when it permanently terminated the parental rights of Richard M. as the decision was against the manifest weight of the evidence." {¶ 4} Two days after the birth of Jamilah P., a/k/a Jamilah M., appellee filed a complaint in dependency requesting permanent custody of the child. At that time of the birth of Jamilah P., her father was incarcerated. Appellee alleged that they had been working with the family for more than a year regarding an older sibling who was adjudged a dependent and neglected child on January 15, 2004. Because the parents had failed to make significant progress on their case plan as to the older child, appellee was also seeking permanent custody of the older child in a separate proceeding. Because appellee believed that Jamilah P. was at risk of being neglected if released to the mother's care, and because appellee believed that it was futile to attempt to work with the family further, appellee was immediately seeking permanent custody of Jamilah P. {¶ 5} Following a hearing on December 10, 2004, the court immediately placed Jamilah P. in the temporary custody of appellee. Appellee filed a case plan on December 29, 2004, with a goal of adoption of Jamilah P. Appellee listed as among its concerns the father's history of violent behavior, including domestic violence; the father's use of narcotics; the father's untreated mental illness; the lack of family housing; the mother's depression; and the father's inappropriate parenting of the parents' older child. Appellee stated that it was unable to provide services before removal of Jamilah P. due to exigent circumstances. {¶ 6} Following a hearing on December 23, 2004, the magistrate found that Jamilah P. was a dependent child as to the mother. The trial court adopted the magistrate's decision as its own on January 19, 2005. On February 11, 2005, the court-appointed special advocate and guardian ad litem filed her report recommending that permanent custody be awarded to appellee. {¶ 7} A hearing was held on February 15, 2005. Because the mother had agreed in mediation to the adjudication of Jamilah P. as a dependent, the hearing proceeded only as to the issue of disposition regarding the mother. The hearing involved both the adjudication and disposition phases regarding the father. Although the father did not attend the hearing, he was represented by counsel. {¶ 8} Appellee submitted the following evidence at the hearing regarding the adjudication phase of the proceedings relative to the father. The caseworker testified that she had been involved with the family since October, 2003, regarding the custody of the couple's older son. By the time of Jamilah P.'s birth, the father had made very little progress on his case plan objectives. He had failed to complete psychological testing, he continued to use narcotics, and was incarcerated for a minimum term of five months. Following the submission of this evidence, the court adjudicated Jamilah P. to be a dependent child as to the father. {¶ 9} With respect to the disposition phase, appellee introduced the following evidence. A clinical therapist for Harbor Behavioral Health Care testified that she assessed the mother in April 2004 and diagnosed the mother with a depressive disorder, not otherwise specified. The therapist recommended a psychiatric evaluation because the mother did not have insurance to pay for medication she had been taking. Appellee also referred the mother to a women's group therapy because she denied that she was being abused. On September 7, 2004, the therapist had closed the mother's file for failure to return. However, the mother returned on September 29, 2004, to attend her first therapy session. She only attended one other session on October 13, 2004. The mother explained that she did not think that she needed to participate because she believed that she was getting her son back soon and her new baby was due in November. The father was in jail at that time and she was planning to move to another state the following month. At the October session, the mother stated that the father had abused other women, but not her. She further stated that she had left him. The mother was still planning to get her son back as late as March 2005. {¶ 10} A clinical counselor for Harbor Behavioral Health Care testified that she assessed the father on April 14, 2004. He denied the allegations that led to the removal of his son and the circumstances that led to his incarceration for aggravated menacing. She recommended a psychological evaluation because the father denied much of the information provided by appellee. The father called two-to-three weeks later asking if an appointment had been made for him. She told him that an appointment had not been scheduled and that it would take four-to-six weeks to do so. Typically, the office calls the parent to announce that the appointment has been set. For some reason, an appointment was never scheduled. The counselor could not recall, but presumed that she sent the father a letter stating that since they had not heard from him, she would close his file. She never heard from the father again. {¶ 11} A social worker testified that she became involved with these parents in October 2003. At that time, the family was homeless and living under a bridge in a car. She completed a diagnostic assessment and made recommendations for domestic violence treatment; offender's treatment; anger management; substance abuse treatment; and, later, parenting classes. There was also a referral for mental health assessments and, later, for psychiatric and psychological evaluations. The social worker believed that the mother did not begin to seek services until after the father was incarcerated. The mother repeatedly said that she was going to do it, but never did. However, the mother had told the social worker a few weeks prior to this hearing that she had completed most of the group therapy. The only other service the mother received was a substance abuse assessment. {¶ 12} The father's services consisted of a substance abuse assessment and a diagnostic assessment. The father admitted to another caseworker at the beginning of the case that he had been diagnosed with delusional schizophrenia while incarcerated. Although the caseworker had ruled out this diagnosis, she had recommended psychiatric testing because of his statements. The social worker had regular contact with the father until he was incarcerated in August 2004 for five months. While incarcerated, the father did not make any inquiries about his unborn child. Since his release, the social worker has not had any contact with the father. The mother stated that she has no knowledge of the father's whereabouts. {¶ 13} At first, the mother did not intend to sever her relationship with the father. She told the social worker that the father had been violent in the past but now was only very controlling. In August 2004, she was told that if she did not leave him and he failed to complete his services, that she would lose her child. She then said that she was no longer going to continue the relationship. She contemplated leaving the state to give birth, but did not do so because she did not want to leave her son. {¶ 14} The social worker also testified regarding the family's housing situation. The couple was living with friends shortly after their older child was removed from their custody. The agency provided a security deposit for an apartment, but the parents were evicted about three months later when they did not continue to pay the rent. The mother lived with her sister while the father was incarcerated. At the time of the hearing, the mother was living with someone else. Neither parent is employed. The mother was living on welfare at the time the child in this case was born. {¶ 15} The mother has had regular visitations with her older son. The visitations were changed in February 2004 because the father was calling the son names and the mother made excuses for the father. Parenting classes were then added to the services. However, no referral was made for parenting classes because the parents had not made significant progress on the case plan. {¶ 16} The social worker and others observed the mother with her children and never saw inappropriate behavior on her part. She had regular visitations with the children. They determined that the mother had bonded with Jamilah P. The maternal grandmother had temporary custody of the older child, but she does not want to raise another baby. Therefore, Jamilah P. was placed in a foster home and the foster parents are willing to adopt her. The social worker believed that the best interests of the child would be served by giving appellee permanent custody of the child. {¶ 17} At the conclusion of the hearing, the court found that appellee had made reasonable efforts to prevent the ongoing removal of Jamilah P. from the home. The court found that there was clear and convincing evidence that that child cannot and should not be placed with either parent within a reasonable period. This conclusion was based upon the facts that neither parent had obtained stable housing, employment, or mental health services during their involvement with the agency. Therefore, the court awarded permanent custody of Jamilah P. to appellee. Both the mother and father sought an appeal to this court. Their assignments of error are consolidated for our review. {¶ 18} Jamilah P. was found to be a dependend child as that term is defined by R.C. 2151.04. Appellants do not raise any assignments of error relating to that determination. Instead, appellants' arguments challenge only the disposition order of the trial court. {¶ 19} After the court adjudicated Jamilah P. a dependent child, the court had the authority to order that Jamilah P. be committed to the permanent custody of appellee. R.C.2151.353(A)(4). To do so, the court was required to make two findings. First, the court was required to find, in accordance with R.C. 2151.414(E), that the child cannot be placed with one of the child's parents within a reasonable time or should not be placed with either parent. Second, the court was required to find, in accordance with R.C. 2151.414(D), that the permanent commitment is in the best interest of the child. R.C.2151.353(A)(4). {¶ 20} Under R.C. 2151.414(E), the trial court is directed to consider all relevant evidence to determine, by clear and convincing evidence, whether one or more of the 16 conditions listed in R.C. 2151.414(E) exist as to each of the child's parents. If the court finds that any one or more of these conditions exist, 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. {¶ 21} In this case, the court concluded that the conditions of R.C. 2151.414(E)(4), (14), and (16) existed. The R.C.2151.414(E)(4) factor is that: {¶ 22} "The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child." {¶ 23} The court found that the "other actions" in this case included the failure of the parents to provide a permanent home for the child and their failure to utilize the services recommended by appellee, which are designed to remedy the problems which caused removal of the child. {¶ 24} The R.C. 2151.414(E)(14) factor is that: {¶ 25} "The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect." {¶ 26} The basis for this finding is again the fact that the parents did not and could not provide a stable home for Jamilah P. {¶ 27} Finally, under R.C. 2151.414(E)(16), the court may base its decision on: {¶ 28} "Any other factor the court considers relevant." {¶ 29} The additional factors, which the court found relevant, included the following. First, the failure of the parents to correct the problems connected with the removal of an older sibling. Second, the unemployment of the parents and their lack of any source of support. Third, their failure to provide housing for their children. Fourth, the failure of the father to even attempt communication with Jamilah P. since her birth. Fifth, the failure of the parents to understand why their children have been removed from their care and their unwillingness to participate in services to obtain the return of their children. {¶ 30} Pursuant to R.C. 2151.414(D), the court shall consider all relevant factors, including those listed in the statute to determine if an award of permanent custody to appellee would be in the child's best interest. The decision of the trial court terminating parental rights and providing for the disposition of the minor child will not be reversed if a review of the record reveals that that the trial court had sufficient evidence to satisfy the clear and convincing standard. In re Bradley John B., 6th Dist. Nos. H-03-037 and H-03-041, 2004-Ohio-1328, ¶ 24, citing In re Wise (1994),96 Ohio App.3d 619, 626. {¶ 31} The mother challenges that there was no competent and credible evidence that permanent placement of the minor child with appellee was in the child's best interest nor that the minor child could not be returned to the mother within a reasonable period of time. She argues that since the hearing was held approximately two months after the child was born, the mother could not have "continuously and repeatedly" failed to correct behavior that led to the child's removal. Furthermore, she asserts, her regular and appropriate visitations with the minor child exhibited her interest in her child. {¶ 32} We disagree. The trial court based its conclusion that the minor child should not be placed with the parents in part upon their behavior that occurred prior to the birth of the minor child. There is no error in so doing. While there was little time for the mother to correct the problems in this case after the minor child was born, appellee has been working with the mother to remedy the same problems in connection with the older sibling for over a year. At the time of the hearing, it was clear that the mother could not or would not take the action necessary to be able to provide a stable home for her newborn child. {¶ 33} As to the father, he asserts that none of the factors listed in R.C. 2151.414(E) are applicable to him since he was incarcerated at the time of the birth of the minor child until approximately one month before this hearing. {¶ 34} We disagree. R.C. 2151.414(E)(4) is clearly applicable in this case. The father made no attempt to communicate with his newborn child, nor did he inquire as to her well-being. He did not make any attempt to contact appellee regarding the child. He also did not attend the adjudication and disposition hearing. Furthermore, the father is unwilling or unable to provide a stable home for Jamilah P. Even though the father was incarcerated, he had an obligation to provide for his child. {¶ 35} We find both assignments of error not well-taken. Having found that the trial court did not commit error prejudicial to appellants and that substantial justice has been done, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to 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, amended 1/1/98. Peter M. Handwork, J. Mark L. Pietrykowski, J. William J.Skow, J. concur.

2016-07-06 06:42:22.0211+00

DECISION AND JUDGMENT ENTRY {¶ 1} Jeffrey S. Watson, in his capacity as the Trustee of the Jeffrey S. Watson Revocable Trust (hereinafter "Watson"), appeals the judgment from the Jackson County Common Pleas Court. Watson owns a parcel of land that became landlocked when the State of Ohio appropriated land from Watson's predecessor in interest. Watson alleged in his complaint that when the State appropriated the land, "it created an easement of necessity by operation of law [for him] to have alternative access" across abutting land owned by Robert Neff, James Neff, and/or John Neff (hereinafter "Neffs"). The trial court found that Watson failed to establish an easement of necessity. On appeal, Watson contends that the trial court's decision is contrary to this Court's decision inJoseph v. Suttle (Feb. 10. 1992), Meigs App. No. 446. Because an easement that *Page 2 arises from necessity requires a plaintiff to prove common ownership of the dominant and servient estates, and because Watson failed to prove the same, we disagree and choose not to follow our decision inJoseph. Accordingly, we affirm the judgment of the trial court. I. {¶ 2} The material facts are not in dispute. Watson's landlocked parcel of land abuts and is between both U.S. Route 35 and the relevant part of Neffs' parcel of land. U.S. Route 35 forms the Northeast boundary, and the relevant portion of the Neffs' land forms the Southwest boundary of Watson's land. {¶ 3} In 1966, the State of Ohio appropriated land from Watson's predecessor in interest and used this land to widen and improve U.S. Route 35. The State, at the same time, changed U.S. Route 35 to a limited access highway, and paid Watson's predecessor in interest for the new limitation of access to the property. As a result, Watson's land became landlocked because no one could access it from a public road. {¶ 4} The Waterloo Coal Company then purchased the property. At some point in time, the Waterloo Coal Company operated an access road across what is now the Neffs' land to a public road (not U.S. Route 35) pursuant to a mineral lease. Eventually Watson purchased the land from the Waterloo Coal Company. {¶ 5} Watson then filed this action in the trial court to have the access road across the Neffs' land declared, inter alia, an easement of necessity. After a bench trial, the court found in favor of the Neffs. {¶ 6} Watson appeals and asserts the following assignment of error: "The trial court erred when it declined to recognize an easement of necessity where the state *Page 3 government had in the past appropriated all public road access to the plaintiff's tract of land, so as to render it landlocked." II. {¶ 7} Watson contends in his sole assignment of error that the trial court erred when it declined to recognize an "easement by necessity * * * or any other access the court would choose to award[.]"1 The crux of the dispute is whether Watson must prove "unity of title" before he can establish an easement by necessity. While the Neffs argue that Watson must prove unity of title, Watson claims that the precedent of the Fourth District Court of Appeals, Joseph, supra, establishes that unity of title is not necessary under the facts of this case. {¶ 8} The issue presented to this Court is solely one of law. This Court reviews questions of law de novo. Lewis v. Nease, Scioto App. No. 05CA3025, 2006-Ohio-4362, ¶ 66, citing Nationwide Mut. Fire Ins. Co. v.Guman Bros. Farm, 73 Ohio St.3d 107, 108, 1995-Ohio-214. {¶ 9} "Easements may be implied in several ways-from an existing use at the time of the severance of ownership in land, from a conveyance describing the premises as bounded upon a way, from a conveyance with reference to a plat or map or from necessity alone[.]" Tratter v.Rausch (1950), 154 Ohio St. 286, 291-92. Implied grants of easements are not favored, being in derogation of the rule that written instruments shall speak for themselves. Ciski v. Wentworth (1930), 122 Ohio St. 487, paragraph one of the syllabus. *Page 4 {¶ 10} Here, Watson only claims an easement by necessity, but the Neffs' brief cites cases related to both easements implied from necessity and easements implied from prior use. So, we will briefly consider both. {¶ 11} Easements implied from prior use may arise where "property has been held in a unified title, and during such time an open and notorious servitude has apparently been impressed upon one part of the estate in favor of another part, and such servitude, at the time that the unity of title has been dissolved by a division of the property or a severance of the title, has been in use and is reasonably necessary for the fair enjoyment of the portion benefited by such use." Ciski at 495. Therefore, easements implied from prior use require proof of unity of title under Ohio law. {¶ 12} Easements that arise from necessity alone still require a plaintiff to prove "[c]ommon ownership of both the dominant and servient estate[s.]" Vance v. Roa (2000), Lawrence County App. No. 99CA23, p. 2, fn.2, citing 4 Powell on Real Property (1994) 383, section 34.07; 36 Ohio Jurisprudence 3d (1982) 448-449, Easements and Licenses in Real Property, section 48; 1 McDermott's, Ohio Real Property (1988) 383, sections 10-12; see also Douglas v. Athens Masonic Temple Co. (1961),115 Ohio App. 353, 359 (holding all easements by implication require unity of title). {¶ 13} Against the foregoing precedent, Watson offers the unreported case of Joseph from this district. In Joseph, a road formed the boundary between two landowners, one to the South and one to the North. The Works Progress Administration moved this road onto the property of the Southern landowner in the 1930's. Years later a dispute arose between the owners of the two parcels of land, and this Court found an easement of necessity arose by operation of law. This easement permitted the *Page 5 Northern landowner to cross the Southern landowner's land to have access to the road. The Joseph court noted that neither landowner produced a root deed from a common grantor; thus, there was no unity of title. However, this Court has more recently repeated the longstanding requirement that a plaintiff prove unity of title to establish an easement by necessity. Vance, supra, at p. 2, fn.2 (the primary issue involved an easement by prescription). {¶ 14} The unity of title requirement accords with the principles of implied easements. Implied easements are easements read into a deed. "An implied easement is based upon the theory that whenever one conveys property he includes in the conveyance whatever is necessary for its beneficial use and enjoyment and retains whatever is necessary for the use and enjoyment of the land retained." Tratter, supra, at 291. In other words, implied easements are those easements that a reasonable grantor and grantee would have expected in the conveyance, and a court will read the implied easement into a deed where the elements of that implied easement exist. However, if there is no unity of title, there is no grantor who may give an easement to the grantee. It does not matter whether a reasonable grantor would have conveyed an easement or a reasonable grantee would have expected to receive an easement. A grantor simply cannot convey what is not possessed. {¶ 15} Here, we choose to follow the longstanding requirement that we stated in Vance. That is, we hold that a plaintiff must prove unity of title to establish an easement by necessity. {¶ 16} Because Joseph was decided before May 1, 2002 (when the Supreme Court Rules For The Reporting of Opinions was modified), and because the Ohio *Page 6 Official Reports did not publish Joseph, it is not controlling authority in this case. See former S.Ct. R.Rep.Op. 2(G)(1)-(2).2Joseph is only controlling as between its parties, and we do not need to expressly overrule it. Id. Consequently, we do not apply the same three-prong test that the Supreme Court of Ohio uses to determine if a prior decision should be overruled. See Westfield Ins. Co. v.Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, paragraph one of the syllabus. {¶ 17} Here, the parties agree that no unity of title exists. Neither the State of Ohio nor Watson's predecessor in interest could have conveyed the easement because they never possessed the part of Neffs' land in question.3 {¶ 18} Accordingly, we overrule Watson's sole assignment of error and affirm the judgment of the trial court. JUDGMENT AFFIRMED. *Page 7 JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED, and Appellant pay the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Jackson 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. Harsha, J. and Abele, J.: Concur in Judgment and Opinion. 1 Watson concedes that the access road cannot satisfy the requirements of an easement by prescription under Ohio law. 2 Former Rule 2(G)(1)-(2) states: "Unofficially published opinions and unpublished opinions of the Courts of Appeals may be cited by any court or person subject to the following restrictions, limitations, and exceptions: (1) An unofficially published or unpublished opinion shall not be considered controlling authority in the judicial district in which it was decided except between the parties thereto when relevant under the doctrines of the law of the case, res judicata or collateral estoppel or in a criminal proceeding involving the same defendant; (2) In all other situations, each unofficially published opinion or unpublished opinion shall be considered persuasive authority on a court, including the deciding court, in the judicial district in which the opinion was rendered. Opinions reported in the Ohio Official Reports, however, shall be considered controlling authority for all purposes in the judicial district in which they were rendered unless and until each such opinion is reversed or modified by a court of competent jurisdiction[.]" 3 In addition, the State clearly did not intend to grant an easement through the land it had appropriated because the State compensated Watson's predecessor in interest for the lack of access. *Page 1

2016-07-06 06:42:22.062559+00

DECISION IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION {¶ 1} In this original action, relator, Daisy Arthur, requests a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying her request for permanent total disability ("PTD") compensation and enter an order granting said compensation. {¶ 2} Relator's compensation claim arises from two separate industrial injuries. Claim No. 74-44302 was allowed for "muscle sprain to neck and right shoulder; occipital neuralgia; chronic pain syndrome; [and] adhesive capsulitis of the right shoulder." Claim No. 01-842280 was allowed for "bilateral carpal tunnel syndrome; [and] aggravation of pre-existing bilateral basilar arthritis." Relator suffered the first claim on September 5, 1974 while employed by Clopay Corporation.1 She suffered the second claim in 2001 while employed by White Castle Systems, Inc. {¶ 3} On September 4, 2005, relator filed an application for PTD compensation. At the commission's request, relator was examined by Andrew Freeman, M.D., on May 20, 2005. Dr. Freeman noted that relator underwent a series of surgeries on her hands following her diagnosis for claim No. 01-842280. Dr. Freeman described relator's surgeries as follows: * * * In May 2002, she underwent a left carpal tunnel release and in June 2002 she underwent a right carpal tunnel decompression with a right flexor tenosynovectomy. She had continued pain at the base of both thumbs and after the claim was allowed for basilar arthritis (arthritis at the base of the thumb), she underwent an arthrodesis with placement of hardware in the left CMC joint in October 2002. She underwent a similar operation in February 2003 in the right thumb. On January 9, 2004, she had an excisional interpositional arthroplasty for a metacarpal-carpal trapezial joint on the right hand with the palmaris longus tendon graft. She also had removal of the metal plate and screws from the previous operation. {¶ 4} Dr. Freeman concluded that relator's allowed physical conditions had reached a maximum medical improvement ("MMI") of 28 percent whole person impairment. Dr. Freeman completed a "Physical Strength Rating" form in which he noted that relator was capable of sedentary employment "with additional restriction of no repetitive hand motions[.]" {¶ 5} Dr. Freeman also included relator's occupational history in his report: OCCUPATIONAL HISTORY: She has not worked since March 26, 2002. She states that she last worked for White Castle from 1998 through 2002 as a fast food restaurant worker. From 1964 to 1968, she was a machine operator operating a security bag-making machine. From 1969 to 1970, she was a machine operator slicing lunchmeats. From 1971 to 1975 until her shoulder and neck injury, she was a machine operator operating a rolling machine, taping and assembling plastic window shades. She did not work from 1975 to 1998. {¶ 6} At the request of respondent, White Castle Systems, relator underwent an employability assessment by vocational expert, Deanna Arbuckle. Ms. Arbuckle's July 11, 2005 report revealed that relator's previous job duties ranged from unskilled to skilled and required light or medium strength. Ms. Arbuckle noted that relator left school after completing the 11th grade in 1958. Relator never obtained a GED. Relator did indicate that she was able to read, write, and do basic math. Under her "Residual Employability Profile (Transferable Skills)," Ms. Arbuckle stated that: Ms. Arthur has demonstrated the ability to work in a position requiring average aptitudes of intelligence, spatial perception, form perception, clerical perception, motor coordination, finger dexterity, and manual dexterity. She has also demonstrated 7-8th grade Reasoning, and 4-6th grade Math and Language proficiencies. She has demonstrated temperaments for occupations that require performing repetitive or short cycle work; attaining precise set limits, tolerances, and standards; making judgements and decisions; and dealing with people. Specific skills have been developed in the Work Fields of Filling-packaging-wrapping (Unskilled); shearing-shaving (Unskilled), structural fabrication-install-repair (Semi-Skilled), cooking-food preparing (Skilled), accommodating (Unskilled) and merchandising sales (Unskilled). Through her prior work activity, the claimant has gained experience with the following materials, products, subject matter or services (MPSMS): processed meat products; [dairy] products; wood and metal fixtures; converted paper and paperboard products [etc]; retail trade; production services; and meal services except domestic[.] {¶ 7} Upon review of relator's occupational history and Dr. Freeman's report, Ms. Arbuckle concluded that relator is capable of sedentary sustained remunerative employment. Based upon her analysis, Ms. Arbuckle suggested sedentary occupations conducive to relator's skill level: 976.682-014 PRINTER OPERATOR, BLACK-AND-WHITE Sedentary 5-skilled Operates printer to produce black-and-white photographic prints from negatives. 249.587-018 DOCUMENT PREPARER, MICROFILMING Sedentary 2-unskilled Prepares documents, such as brochures, pamphlets, and catalogs, for microfilming, using paper cutter, photocopying machine, rubber stamps, and other work devices. {¶ 8} A staff hearing officer ("SHO") conducted a hearing on relator's PTD application on July 28, 2005. The SHO relied upon the reports submitted by Dr. Freeman and Ms. Arbuckle in denying relator's claim for PTD compensation. The SHO further analyzed relator's non-medical factors. The SHO noted that relator was 62 years old. Although her age was not a positive factor for re-employment, relator's education, ability to read, write and do basic math, and the skills she gained from her previous positions were positive factors for consideration. The SHO further stated that "the Injured Worker's lack of engaging in rehabilitation reflects negatively on the injured Worker's application for permanent and total disability compensation." {¶ 9} Based upon these findings, the SHO found that relator was not entitled to PTD compensation. On September 22, 2005, relator filed the within writ of mandamus alleging: (1) the commission abused its discretion by failing to properly consider and discuss its decision based upon relator's non-medical factors; and (2) the commission abused its discretion by relying upon Ms. Arbuckle's vocational report. {¶ 10} Pursuant to Civ. R. 53(C) and Loc. R. 12(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate of this court. The magistrate rendered a decision on June 30, 2006, including findings of fact and conclusions of law. (Attached as Appendix A.) Based upon his application of the case law to these facts, the magistrate found: "(1) the Arbuckle report provides some evidence upon which the commission can rely to support the commission's non-medical analysis, and (2) the commission did abuse its discretion in holding relator accountable for not having engaged in any type of retraining since her most recent injury in 2001." Accordingly, the magistrate recommended that this court issue a writ of mandamus granting relator's request for PTD compensation. {¶ 11} Relator objected to the magistrate's decision on the grounds that Ms. Arbuckle's vocational report is flawed and internally equivocal and, thus, may not be considered evidence upon which a decision may be based. State ex rel. Eberhardt v. Flxible Corp. (1994),70 Ohio St.3d 649. Respondents object to the magistrate's determination that the commission abused its discretion by holding relator accountable for failing to undergo any retraining or rehabilitation. We overrule relator's objection and sustain respondents' objection. {¶ 12} For a writ of mandamus to issue, relator must exhibit a legal right to relief from the determination of the commission and that the commission has a legal duty to provide such relief. State ex rel.Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141. The right to relief is demonstrated by showing that the commission abused its discretion by entering an order not supported by the evidence of record. State ex rel.Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76. However, where some evidence of record supports the commission's order, there is no abuse of discretion and mandamus is not available. State ex rel. Lewis v. DiamondFoundry Co. (1987), 29 Ohio St.3d 56. {¶ 13} Relator contends that Ms. Arbuckle's vocational report mischaracterizes relator's physical restrictions set forth in Dr. Freeman's medical report. Relator argues that Ms. Arbuckle failed to take into consideration the proviso in Dr. Freeman's report that relator was capable of sedentary work as long as she was not required to perform repetitive hand motions. Relator further asserts that all of the jobs listed in Ms. Arbuckle's report require repetitive hand motions in direct contradiction with Dr. Freeman's orders. As such, relator feels Arbuckle's report is fundamentally flawed and may not be relied upon as some evidence to support the commission's non-medical analysis underEberhardt. Relator concludes that the only vocational evidence the commission may rely upon is the report submitted on her behalf by William Cody, which states she is permanently and totally disabled. {¶ 14} Relator misinterprets the holding in Eberhardt. Eberhardt stands for the proposition that equivocal medical opinions may not be relied upon as some evidence by the commission. However, the Supreme Court of Ohio made no mention of vocational reports, indicating the court's intent that the rule only apply to medical opinions. Because Ms. Arbuckle's report is vocational evidence, Eberhardt does not apply in this case. {¶ 15} Furthermore, we have long held that the commission is the ultimate expert on vocational and non-medical evidence. State ex rel.Jackson v. Indus. Comm. (1997), 79 Ohio St.3d 266. While the commission may, in its discretion, refer to offered vocational evidence, it is not required to do so: * * * [T]he commission, as the exclusive evaluator of disability, is not bound to accept vocational evidence, even if uncontradicted. Rather, upon a determination of claimant's permanent partial impairment, the commission's charge is to review the evidence of the claimant's age, education, work history, and other relevant nonmedical characteristics and to decide for itself from that evidence whether the claimant is realistically foreclosed from sustained remunerative employment. The commission may credit offered vocational evidence, but expert opinion is not critical or even necessary, because the commission is the expert on this issue. * * * Id. at 270-271. (Emphasis sic.) The commission did not abuse its discretion in relying upon Ms. Arbuckle's report as some evidence to determine that relator is not entitled to compensation. Relator's objection is overruled. {¶ 16} Respondents object to the magistrate's determination that the commission abused its discretion by holding relator accountable for not seeking rehabilitation or retraining following her most recent injuries. The magistrate noted that the commission failed to consider relator's five surgeries in 2002, 2003 and 2004, and their impact on her ability to undergo retraining. We agree that the magistrate erroneously placed the burden on the commission to consider how rehabilitation and retraining would be affected by relator's multiple surgeries. {¶ 17} Ohio Adm. Code 4123-3-09(C)(3) states, in part, that "the burden of proof is upon the claimant * * * to establish each essential element of the claim by preponderance of the evidence." (Emphasis added.) Absent proof, the commission may deny compensation if "[t]he employee has not engaged in educational or rehabilitative efforts to enhance the employee's employability, unless such efforts are determined to be in vain." R.C. 4123.58(D)(4). In State ex rel. B.F. Goodrich Co. v. Indus.Comm. (1995), 73 Ohio St.3d 525, the injured worker did not take advantage of rehabilitation and retraining programs. The Supreme Court of Ohio noted: The commission does not, nor should it, have the authority to force a claimant to participate in rehabilitation services. However, we are disturbed by the prospect that claimant may have simply decided to forgo retraining opportunities that could enhance re-employment opportunities. An award of permanent total disability compensation should be reserved for the most severely disabled workers and should be allowed only when there is no possibility for re-employment. Id. at 529. {¶ 18} Relator bore the burden of showing why she did not participate in rehabilitation or retraining. Relator did not submit any evidence that she sought out or attempted retraining. Moreover, relator did not suggest that retraining would be futile in light of her physical condition. Absent evidence proving otherwise, we can only reach the conclusion that relator failed to establish her burden of proof that rehabilitation or retraining would be in vain. The magistrate improperly shifted the burden of proof from relator to the commission to reach the recommendation that a writ of mandamus be granted and relator awarded PTD compensation.2 {¶ 19} Pursuant to Civ. R. 53(E)(4), we have conducted a full review of the magistrate's decision, relator and respondents' objections, and submitted memoranda. For the foregoing reasons, we overrule relator's objections and sustain respondents' objections. We decline to adopt that portion of the magistrate's decision that relieved relator from her burden to demonstrate that she either engaged in educational or rehabilitative efforts or that such efforts would be in vain. Relator's request for a writ of mandamus is denied. Relator's objections are overruled; respondents' objections aresustained; writ of mandamus denied. KLATT, P.J., and DESHLER, J., concur. DESHLER, J., retired of the Tenth Appellate District, assigned to active duty under the authority of Section 6(C), Article IV, Ohio Constitution. (APPENDIX A) MAGISTRATE'S DECISION IN MANDAMUS {¶ 20} In this original action, relator, Daisy Arthur, requests a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying permanent total disability ("PTD") compensation, and to enter an order granting said compensation. Findings of Fact: {¶ 21} 1. Relator has two industrial claims. Claim No. 01-842280 arose from her employment as a fast food restaurant worker with respondent, White Castle Systems, Inc. The claim is allowed for "bilateral carpal tunnel syndrome; aggravation of pre-existing bilateral basilar arthritis." The commission recognizes July 16, 2001, as the date of diagnosis in claim No. 01-842280. {¶ 22} 2. Claim No. 74-44302 arose from relator's employment as a roller machine operator with respondent, Clopay Corporation. The claim is allowed for "muscle sprain to neck and right shoulder; occipital neuralgia; chronic pain syndrome; adhesive capsulitis of the right shoulder." The injury in claim No. 74-44302 occurred September 5, 1974. {¶ 23} 3. On September 4, 2005, relator filed an application for PTD compensation. In her application, relator states that she last worked on March 26, 2002. {¶ 24} 4. On May 20, 2005, at the commission's request, relator was examined by Andrew Freeman, M.D. In his narrative report, Dr. Freeman describes relator's surgical history arising from the July 16, 2001 diagnosis: On July 16, 2001, she was working for White Castle System Incorporated as a fast food worker when due to repetitive motion in both hands, she developed bilateral carpal tunnel syndrome with numbness and pain in both hands and wrists. She had an EMG with nerve conduction velocities on July 16, 2001, which showed right-sided severe carpal tunnel syndrome similar to the 2000 EMG. In May 2002, she underwent a left carpal tunnel release and in June 2002 she underwent a right carpal tunnel decompression with a right flexor tenosynovectomy. She had continued pain at the base of both thumbs and after the claim was allowed for basilar arthritis (arthritis at the base of the thumb), she underwent an arthrodesis with placement of hardware in the left CMC joint in October 2002. She underwent a similar operation in February 2003 in the right thumb. On January 9, 2004, she had an excisional interpositional arthroplasty for a metacarpal-carpal trapezial joint on the right hand with the palmaris longus tendon graft. She also had removal of the metal plate and screws from the previous operation. {¶ 25} 5. In his narrative report, Dr. Freeman also describes relator's occupational history: OCCUPATIONAL HISTORY: She has not worked since March 26, 2002. She states that she last worked for White Castle from 1998 through 2002 as a fast food restaurant worker. From 1964 to 1968, she was a machine operator operating a security bag-making machine. From 1969 to 1970, she was a machine operator slicing lunchmeats. From 1971 to 1975 until her shoulder and neck injury, she was a machine operator operating a rolling machine, taping and assembling plastic window shades. She did not work from 1975 to 1998. {¶ 26} 6. In his narrative report, Dr. Freeman concludes with a discussion and opinion: DISCUSSION: Daisy Arthur has allowed conditions from 2 different claims being evaluated in this report. The neck, right shoulder, occipital nerve, bilateral hand and thumb conditions are all still symptomatic. OPINION: Based solely on the allowed conditions listed in the claims reviewed, and considering only the physical conditions allowed: 1. These allowed conditions have reached MMI. 2. Based on the American Medical Association's Guides to the Evaluation of Permanent Impairment 5th Edition, the whole person impairment for the allowed physical conditions in the claim in 28%. * * * {¶ 27} 7. On May 20, 2005, Dr. Freeman completed a Physical Strength Rating form. The form asks the examining physician to indicate the classification of physical work activity the injured worker may be capable of performing. On the form, Dr. Freeman marked "sedentary work" but added "with additional restriction of no repetitive hand motions[.]" {¶ 28} 8. Respondent, White Castle Systems, Inc., requested an employability assessment from Deanna Arbuckle, a vocational expert. In her report dated July 11, 2005, Arbuckle twice describes the opinion of Dr. Freeman. {¶ 29} On page two of her report, Arbuckle states: Andres [sic] Freeman, MD, DS (05/20/2005) has opined the claimant capable of sedentary work. {¶ 30} On page five of her report, Arbuckle states: Medical evaluation and examination report from Andres [sic] Freeman, MD, MS who opined Ms. Arthur has reached maximum medical improvement with the ability to perform sedentary work. {¶ 31} 9. In her July 11, 2005 report, Arbuckle states: WORK HISTORY The following represents the claimant's work history based on the information provided and utilizing the Dictionary of Occupational Titles guidelines: DOT Code Occupational Title Skill Level Strength 313.374-010 Cook, fast food 5-Skilled Medium 311.472-010 Fast food worker 2-Unskilled Light 692.685-250 Window shade cutter mounted 3-Semi-skilled Light 920.587-018 Packager, Meat 2-Unskilled Medium 316.684-014 Deli Cutter Slicer 2-Unskilled Light 649.685-014 Bag Machine Operator 3-Semi-skilled Medium RESIDUAL EMPLOYABILITY PROFILE (TRANSFERABLE SKILLS) Transferable skills are developed through past jobs that can be utilized in other work. Specific skills, aptitudes and academic abilities can be determined by virtue of what a person demonstrated in the previous work history, and this analysis provides the basis for an assessment of vocational functioning capacities through identification of acquired job skills, aptitudes, temperaments and academic abilities. Ms. Arthur has demonstrated the ability to work in a position requiring average aptitudes of intelligence, spatial perception, from perception, clerical perception, motor coordination, finger dexterity, and manual dexterity. She has also demonstrated 7-8th grade Reasoning, and 4-6th grade Math and Language proficiencies. She has demonstrated temperaments for occupations that require performing repetitive or short cycle work; attaining precise set limits, tolerances, and standards; making judgements and decisions; and dealing with people. Specific skills have been developed in the Work Fields of Filling-packaging-wrapping (Unskilled); shearing-shaving (Unskilled), structural fabrication-install-repair (Semi-Skilled), cooking-food preparing (Skilled), accommodating (Unskilled) and merchandising sales (Unskilled). Through her prior work activity, the claimant has gained experience with the following materials, products, subject matter or services (MPSMS): processed meat products; [dairy] products; wood and metal fixtures; converted paper and paperboard products [etc]; retail trade; production services; and meal services except domestic[.] OCCUPATIONS RELATED TO THE CLAIMANT'S WORK HISTORY: Based on the report from Dr. Freeman, Ms. Arthur is capable of sustained remunerative employment in the sedentary capacity level. With this in mind, a transferable skills analysis was completed based on "any work within basic capacities[."] This level is based only on consideration of basic client capacities (the occupational search profile). There is no consideration of skills acquired through past work experience (WORK and MPSMS). There is no assurance that the client has the actual skills needed to perform the occupations at a competitive level. Occupations with an SVP of 1 or 2 require no previous specific occupational experience and can likely be learned within 30 days through on-the-job performance. Occupations requiring supervisory and/or management responsibility have been excluded from this analysis as they were not demonstrated in the work history. DOT CODE TITLE AND DESCRIPTION REQUIRED STRENGTH SKILL 976.682-014 PRINTER OPERATOR, BLACK-AND-WHITE Sedentary 5-skilled Operates printer to produce black-and-white photographic prints from negatives. 249.587-018 DOCUMENT PREPARER, MICROFILMING Sedentary 2-unskilled Prepares documents, such as brochures, pamphlets, and catalogs, for microfilming, using paper cutter, photocopying machine, rubber stamps, and other work devices. {¶ 32} 10. Following a July 28, 2005 hearing, a staff hearing officer ("SHO") issued an order denying relator's PTD application. The SHO's order states: The Injured Worker was examined at the request of the Industrial Commission by Dr. Freeman on 05/20/2005. Dr. Freeman indicated that the Injured [Worker] is right hand dominant and that she indicated to him during the course of the interview that she was not able to sit for more [than] 10 minutes before her hands began to hurt. He indicated however that the Injured Worker was observed being able to sit for more than 30 minutes during the interview portion of the examination without any difficulty. Dr. Freeman examined the Injured Worker and found that there was no tenderness to palpation over the cervical spine but there was diffused mild spasm of the paracervical musculature. The right shoulder demonstrated no visible swelling or deformity and that there was no tenderness over the AC joint or else where in the shoulder region. Examination of the bilateral wrist demonstrated no visible swelling or deformity of the wrist and that Tinel's, Finkelstein's and Phalen's tests were negative. Examination of the thumbs bilaterally showed no deformities or joint instability and that there was full strength demonstrated with flexion and extension against resistance at the IM and MP joints. He found that eth CMC joints were hypertrophic and tender bilaterally. Dr. Freeman found that the allowed orthopedic conditions have reached maximum medical improvement and result in a 28% whole person impairment rating. He concluded that the Injured Worker would be able to engage in sedentary work activity with additional restrictions of no repetitive hand motions. The Staff Hearing Officer finds that the Injured Worker's orthopedic conditions have reached maximum medical improvement and are permanent and preclude the Injured Worker from returning to her former position of employment. The Hearing Officer finds that the injured Worker would be able to engage in sedentary work activity which does not involve repetitive hand motions based upon the 05/20/2005 report from Dr. Freeman. The employer submitted a 07/11/2005 vocational report from Ms. Arbuckle who opined that the Injured Worker's age of 62 classifies the Injured Worker as a person closely approaching advanced age and opined that her age would not be seen as work prohibitive. The vocational expert found that the Injured Worker had an 11th grade education but did not obtain a GED. She found that the Injured Worker's 11th grade education would be consistent with ability to perform unskilled and semi-skill work activity. She also noted that the Injured Worker could read, write and do basic math. The vocational expert found that the Injured Worker's past work history consisted of unskilled semi-skilled and skilled work activity as a cooker/cleaner in a fast food restaurant, window shade machine operator, meat slicer and machine operator and machine bag operator. She found that the Injured Worker demonstrated the ability to work in positions requiring average aptitudes of intelligence, spatial perception, form perception, clerical perception, motor coordination, finger dexterity and manual dexterity. She noted that the Injured Worker demonstrated the ability to read at the 7-8th grade level, and engage in math and language skills at the 4-6th grade level. She also indicated that the Injured Worker demonstrates temperaments for occupations that require repetitive or short cycle work, attaining precise set limits, tolerances, and standards and making judgements and decisions and dealing with people. She found that the Injured Worker developed specific skills in the fields of packaging-wrapping, shearing-shaving, structural fabrication-installation repair and cooking-food preparation. The Staff Hearing Officer finds that the Injured Worker is 62 years of age, has an 11th grade education and has previous work experience as a fast food restaurant worker, machine operator. The Hearing Officer finds that the Injured Worker's age of 62 classifies the Injured Worker as a person closely approaching advance[d] age and that her age affects the Injured Worker's ability to adapt to new work situations and to compete with other employees. The Hearing Officer finds that the Injured Worker's age is not a positive factor with regard to the Injured Worker returning to sedentary employment. The Hearing Officer finds that the Injured Worker has an 11th grade education and has the ability to read, write and do basic math without difficulty. The Hearing Officer finds that the [I]njured Worker's 11th grade education would be sufficient in order for the Injured Worker to engage in entry level sedentary employment activity. The Hearing Officer finds that the Injured Worker's ability to read, write and do basic math without difficulty as noted on her application would be a positive factor with regard to the Injured Worker engaging in entry level sedentary employment activity or engaging in any type of retraining which may be necessary to re-enter the work force. The Hearing Officer finds that the Injured Worker's past work history has involved unskilled, semi-skilled and skilled work activity. She has demonstrated the ability to engage in positions which required average aptitudes of intelligence and also requires spatial perception, form perception, clerical perception, motor coordination and manual dexterity. These positions also demonstrates the Injured Worker's ability to reason at the 7-8th grade level and engage in math and language skills at the 4-6th grade level. The Hearing Officer finds that the Injured Worker's past work history has involved the injured Worker engaging in employment which demonstrates temperaments for occupations that require the ability to attain precise set limits, tolerances and standards, making judgements and decisions and dealing with people. She has developed specific skills from her previous employment including packaging-wrapping, structural fabrication for installing and repairing, cooking and food preparing and merchandising sales. The Hearing [Officer] finds that the Injured Worker's past work history would not be a barrier to the Injured Worker returning to the work force in an unskilled sedentary position or engaging in retraining necessary for such employment activity. The Staff Hearing Officer finds from a review of the file that the Injured Worker has not engaged in any type of retraining even though she has been out of the work force for approximately 4 years since her most recent injury in 2001. A review of the file indicates that the Injured Worker did attempt to engage in a rehabilitation program in 1981 but her rehabilitation plan was closed as she missed several days without calling either the team or the doctor and it was determined that the Injured Worker did not want to participate in rehabilitation at that time. The Hearing Officer finds that the Injured Worker's lack of engaging in rehabilitation reflects negatively on the injured Worker's application for permanent and total disability compensation. The Hearing Officer finds that an award of permanent total disability compensation should be reserved for the most severely disabled workers and should be allowed only when there is no possibility for re-employment. State ex rel. B. F. Goodrich Co. v. Industrial Comm. (1995) 73 Ohio St. 3d 525. The Hearing Officer finds that such a conclusion can not be drawn based on the Injured Worker's forgoing retraining opportunities that could enhance reemployment opportunities. Based upon the Injured Worker's lack of vocational retraining, as well as her education and work experience, the Staff Hearing Officer finds that eth Injured Worker would be able to engage in sustained remunerative work activity and is not permanently and totally disabled. Therefore the Hearing Officer denies the Injured Worker's Application for Permanent Total Disability Compensation filed 03/04/2005. {¶ 33} 11. On September 22, 2005, relator, Daisy Arthur, filed this mandamus action. Conclusions of Law: {¶ 34} Two main issues are presented: (1) whether the Arbuckle report provides some evidence upon which the commission can rely to support its non-medical analysis, and (2) whether the commission abused its discretion in holding relator accountable for not having engaged in any type of retraining since her most recent injury in 2001. {¶ 35} The magistrate finds: (1) the Arbuckle report provides some evidence upon which the commission can rely to support the commission's non-medical analysis, and (2) the commission did abuse its discretion in holding relator accountable for not having engaged in any type of retraining since her most recent injury in 2001. {¶ 36} Accordingly, it is the magistrate's decision that this court issue a writ of mandamus, as more fully explained below. {¶ 37} Turning to the first issue, it is settled law that the commission is the expert on the non-medical factors. State ex rel.Jackson v. Indus. Comm. (1997), 79 Ohio St.3d 266, 271. The commission may credit offered vocational evidence, but expert opinion is not critical or even necessary. Id. {¶ 38} Here, the SHO's order reveals that the commission conducted its own analysis of the non-medical factors with some reliance upon portions of the Arbuckle report. It was proper for the commission to do so. {¶ 39} Equivocal medical opinions are not evidence. State ex rel.Eberhardt v. Flxible (1994), 70 Ohio St.3d 649, 657. Equivocation occurs when a doctor repudiates an earlier opinion, renders contradictory or uncertain opinions, or fails to clarify an ambiguous statement. Id. {¶ 40} Citing Eberhardt, relator argues that the Arbuckle report is equivocal and, thus, cannot provide some evidence to the commission to support its non-medical analysis. Relator argues that the Arbuckle report is equivocal because allegedly Arbuckle mischaracterizes Dr. Freeman's opinion regarding physical work capability. According to relator, Arbuckle's failure to indicate Dr. Freeman's restriction of "no repetitive hand motions" flaws Arbuckle's entire report, thus requiring that the entire report be eliminated from evidentiary consideration. {¶ 41} To further her argument, relator contends that Arbuckle's alleged failure to recognize Dr. Freeman's restriction of "no repetitive hand motions" led Arbuckle to erroneously conclude that relator is capable of performing employment as a printer operator (black and white) and a "document preparer, microfilming[,]" which relator asserts are "jobs that would be hand intensive in nature." (Relator's brief at 8.) The magistrate disagrees with relator's argument in several respects. {¶ 42} To begin, relator's argument that Arbuckle mischaracterized Dr. Freeman's opinion as to physical capacity does not demonstrate an equivocation even if the alleged mischaracterization is accepted. {¶ 43} Secondly, even if it is accepted that Arbuckle mischaracterized Dr. Freeman's opinion, such would not necessarily flaw Arbuckle's entire report. {¶ 44} The SHO's order does not indicate commission reliance upon Arbuckle's entire report. The SHO did rely on Arbuckle's presentation and analysis of relator's work history. However, the SHO did not adopt Arbuckle's employment options. The analysis of relator's work history would necessarily be unaffected by any alleged mischaracterization of Dr. Freeman's medical opinion. {¶ 45} Moreover, there is no requirement that a vocational expert exhaustively list all the medical restrictions when referring to a medical report. The vocational expert is permitted some degree of latitude in describing or summarizing the medical opinion. Here, relator's challenge to Arbuckle's description of Dr. Freeman's opinion invites some degree of speculation as to Arbuckle's understanding of the report. Because it is the commission that weighs the evidence, it is inappropriate for this court to accept relator's view of Arbuckle's report. See State ex rel. Baker v. Formica Corp., Franklin App. No. 05AP-137, 2005-Ohio-6373. {¶ 46} Turning to the second issue, in the case cited in the SHO's order, State ex rel. B.F. Goodrich Co. v. Indus. Comm. (1995),73 Ohio St.3d 525, 529, the court states: * * * [E]vidence of record indicates that claimant did not participate in rehabilitation services offered by the commission. There is no indication that claimant's lack of participation was based on a physician's medical advice, or on a vocational evaluation that concluded that she was intellectually, psychologically or emotionally incapable of retraining. Absent such evidence, the implication is that claimant simply chose not to avail herself of the opportunity to receive retraining and potential re-employment. The commission does not, nor should it, have the authority to force a claimant to participate in rehabilitation services. However, we are disturbed by the prospect that claimant may have simply decided to forgo retraining opportunities that could enhance re-employment opportunities. An award of permanent total disability compensation should be reserved for the most severely disabled workers and should be allowed only when there is no possibility for re-employment. {¶ 47} Pertinent here, the SHO's order again states: The Staff Hearing Officer finds from a review of the file that the Injured Worker has not engaged in any type of retraining even though she has been out of the work force for approximately 4 years since her most recent injury in 2001. {¶ 48} If we accept relator's statement in her PTD application or Dr. Freeman's statement in his report, relator last worked on March 25, 2002, which is approximately three years and four months prior to the PTD hearing date. Dr. Freeman indicates in his report, which the commission accepted, that relator underwent surgeries in May, June, and October 2002, February 2003, and January 2004. The SHO failed to address how these surgeries would permit relator to engage in retraining. Moreover, Dr. Freeman does not opine that relator was a candidate for retraining for the period at issue. It appears that the SHO's analysis of relator's rehabilitation efforts fails to address a key issue. Accordingly, this magistrate concludes that the SHO abused his discretion in determining that lack of rehabilitation efforts negatively affects on the PTD application. {¶ 49} Accordingly, for all the above reasons, it is the magistrate's decision that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio, to vacate its SHO's order of July 28, 2005, and, in a manner consistent with this magistrate's decision, enter a new order that adjudicates the PTD application. /s/Kenneth W. Macke KENNETH W. MACKE 1 Relator attempted rehabilitation in 1981, following her first industrial claim from 1974. However, the plan was closed after relator failed to show up for several days without notifying her doctor or rehabilitation team. 2 Although not dispositive to the outcome of this proceeding, we note that on a prior occasion, rehabilitative services were made available to relator. However, she failed to attend sessions without providing any notice to her doctor or rehabilitation team. Her previous behavior indicates that relator would neither seek out rehabilitation or retraining, nor would it be likely that she would avail herself of those services if they were again made available to her.

2016-07-06 06:42:22.19887+00

DECISION AND JUDGMENT ENTRY {¶ 1} Harmon C. Huntley appeals his sentence from the Hocking County Common Pleas Court on three counts of gross sexual imposition. Huntley contends the trial court erred in imposing consecutive sentences for three reasons. First, Huntley contends the trial court improperly considered the facts behind the dismissed rape charges when it sentenced him. However, following a plea bargain, trial courts may properly consider facts supporting a more serious charged offense so long as the sentence is within the statutory limits of the pled offense. Huntley also argues that the United States Supreme Court's opinion in Apprendi v. NewJersey, which held that "other than * * * a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury," applies to Ohio's statutory scheme. Since the trial court sentenced Huntley within the statutory parameters allowed for his conviction, Apprendi is inapplicable. Finally, Huntley argues consecutive sentences are disproportionate to the seriousness of his conduct. Because Huntley failed to establish disproportionality and our review of the record reveals the trial court made all of the required statutory findings, it did not err in imposing consecutive sentences. {¶ 2} The Hocking County Grand Jury indicted Huntley on three counts of rape, two counts of gross sexual imposition and one count of disseminating matter harmful to juveniles. Huntley agreed to plead no contest to three counts of gross sexual imposition and the state agreed to dismiss the remaining charges. The trial court held a combined sexual predator classification and sentencing hearing where it classified Huntley as a sexually oriented offender, sentenced him to four years on each count and ordered that the sentences run consecutively. Huntley appealed his sentence and we remanded the case for re-sentencing under R.C.2929.14(E)(4).1 See State v. Huntley, Hocking App. No. 01CA18, 2002-Ohio-2035 (Huntley I). On remand, the trial court again sentenced Huntley to three consecutive four-year terms of imprisonment. Once again, Huntley appeals his sentence and assigns the following error: (I) The trial court erroneously imposed consecutive sentences in violation of Ohio Revised Code § 2929.14. (A) Findings which extend the defendant's sentence beyond the maximum sentence must be proven by the state beyond a reasonable doubt pursuant to Apprendi v. New Jersey, [sic] (2000), 530 U.S. 466. (B) The state has failed to show by a lower standard, preponderance of the evidence the requisite findings of Ohio Revised Code § 2929.14 justifying consecutive sentences. (1) The trial court improperly considered factors relating to dismissed charges that were not part of the agreed statement of facts. (2) A review of similar cases shows that consecutive sentences are disproportionate to the seriousness of the offender's conduct. {¶ 1} In his three-pronged assignment of error, Huntley contends the trial court erred in imposing consecutive sentences. In the second prong of his argument, Huntley contends the court improperly considered facts outside of the plea agreement when it made the statutorily required findings for consecutive sentences. {¶ 2} R.C. 2953.08(A)(4)2 provides for an appeal if a sentence is contrary to law. If we find, by clear and convincing evidence, that the record does not support the sentence or that the sentence is contrary to law, we may increase, reduce, modify or vacate the sentence. R.C.2953.08(G)(1). In this context, we do not substitute our judgment for that of the trial court nor do we simply defer to its discretion. Statev. Keerps, Washington App. No. 02CA2, 2002-Ohio-4806. Rather, we will look to the record to determine whether the sentencing court: 1) considered the statutory factors; 2) made the required findings; 3) relied on substantial evidence in the record to support those findings; and 4) properly applied the statutory guidelines. See State v. Dunwoody (Aug. 5, 1998), Meigs App. No. 97CA11 citing Griffin Katz, Ohio Felony Sentencing Law (1998 Ed.), Section 9.16. {¶ 3} Under the new sentencing statutes, Ohio trial courts generally must impose concurrent prison sentences. See R.C. 2929.41(A). But trial courts may impose consecutive sentences under R.C. 2929.14(E)(4) when: "[t]he court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following: * * * (b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct. * * *" {¶ 1} This inquiry involves a "tripartite procedure." State v.Haugh (Jan. 24, 2000), Washington App. No. 99CA28. First, the sentencing court must find that consecutive sentences are "necessary to protect the public" or to "punish the offender"; second, the court must find that the consecutive sentences are "not disproportionate to the seriousness of the offender's conduct and to the danger" he poses; and finally, the court must find the existence of one of the three enumerated circumstances in R.C. 2929.14(E)(4)(a) through (c). Id. ¶ 2 The sentencing court must also comply with R.C.2929.19(B)(2)(c), which requires the court to "make a finding that gives its reasons for selecting the sentence imposed * * * if it imposes consecutive sentences under section 2929.14 of the Revised Code." Therefore, in addition to making the findings required under R.C.2929.14(E)(4), the court must also justify those findings by identifying specific reasons supporting the imposition of the consecutive sentences.State v. Brice (Mar. 29, 2000), Lawrence App. No. 99CA21. {¶ 3} In his first appeal, we held that the sentencing court complied with the first and third prongs of the statutory analysis. SeeHuntley I. Therefore, this appeal only concerns the second prong of the consecutive sentencing statutory analysis. {¶ 4} On remand, after the court incorporated all of its previous findings and the various victim impact statements, Huntley objected to portions of the pre-sentence investigation report (PSI). Huntley alleged that the PSI contained factual inaccuracies because it included facts supporting the dismissed rape charges. Before proceeding, the court verified (and both parties agreed) that the plea agreement did not include an additional term that limited the court to the stipulated facts when sentencing Huntley. At this point, the court offered Huntley the opportunity to introduce evidence to support his objections but he declined. The court then stated: "[t]he Court finds as follows. The consecutive sentences are not disproportionate to the seriousness of Mr. Huntley's conduct and the danger he poses. In regards to the statements objected to by the defense, I make a finding that the allegations in the PSI are true. I will take those matters into account." However, the court also stated: "I believe there are other substantial factors that weren't objected to that are clearly enough to prove the sentences being consecutive would not be disproportionate to the seriousness of his conduct and the danger he poses. I specifically find that the defendant prepared his victims by showing them filthy movies. * * * [T]he fact that he asked them to kiss each other in their private parts. I find that's true. I find that he would forcibly place his finger and penis inside his victims, causing great pain and drawing blood. His utter disregard for the pain and humiliation indicates a depraved mind, which stops at nothing to satisfy his lust." Later, the sentencing court also stated: "These are very small children. One of them was four at the time. He had her take her clothes off, fondled her genital area with his hands and had her touch his genitals. On another occasion, he had a five-year-old take his clothes off, fondled his penis for some time and his bottom, and had him touch Mr. Huntley's bare genitals. On another occasion, he had two toddlers take off their clothes, touch each others genitals, place them in an intercourse position and have them kiss each other while he watched. These are children that trusted him previously and considered him their grandfather, called him their grandfather. That's all in the agreed statement of facts. The Court finds he is likely to pray upon very young children in the future unless his sentences are aggregated and the conduct so horrible in these three incidents in a short period of time they are not — that consecutive sentences are not disproportionate to the seriousness of his conduct and danger he poses. Therefore, the Court imposes the same sentence with these specific findings." While the court referred to "other substantial factors that weren't objected to," it is clear to us that the court placed some emphasis on the facts supporting the dismissed rape charges when it sentenced Huntley. {¶ 1} Huntley does not argue that the sentencing court failed to comply with R.C. 2951.03, which governs objections to alleged factual inaccuracies in a PSI.3 Rather, he argues that the stipulated facts from the plea agreement form the only factual basis that the court may consider when making its statutorily required findings in support of consecutive sentences. Therefore, Huntley contends that the sentencing court could not consider facts supporting the dismissed rape charges when it sentenced him in this case. {¶ 2} Huntley relies on four Eighth District cases in support of his argument. See State v. Russo (May 31, 2001), Cuyahoga App. No. 78096; State v. Smith (Aug. 3, 2000), Cuyahoga App. No. 76919; State v.Gipson (May 20, 1999), Cuyahoga App. No. 75369; State v. Wells (Mar. 22, 1999), Cuyahoga App. No. 73977. However, these four cases are not persuasive in light of the Eighth District's recent decisions in State v.Frankos (Aug. 23, 2001), Cuyahoga App. No. 78072 and State v. Elder, Cuyahoga App. No. 80677, 2002-Ohio-3797 (quoting and applying the reasoning in Frankos). In Frankos, the grand jury indicted the defendant on two counts of rape. However, the defendant later pled guilty to one count of aggravated assault and the state dismissed the rape charges. The court sentenced the defendant to the maximum sentence allowed for aggravated assault and ordered that he serve this sentence consecutive to the sentence imposed for his probation violation. In making the required statutory findings necessary to support these sentences the court took into account the facts supporting the dismissed rape charges. In affirming the defendant's sentence, the Eighth District relied on the concept of "real offense sentencing" promoted by Griffin and Katz, Ohio Felony Sentencing Law (2000 Ed.) at 545-46. Therefore, the Eighth District, the only district Huntley cites for support, now adopts the approach Huntley argues against here. {¶ 3} In their treatise, Griffin and Katz discuss the concept of "real offense sentencing." See Griffin Katz, Ohio Felony Sentencing Law (2002 Ed.) at 545-46. There, Griffin and Katz state: "Notwithstanding that an offense has been plea bargained to a lesser offense, pre-sentence reports are traditionally written to contain all facts in the police file. Likewise, judges have been accustomed to sentence an offender based on the judge's perception of the true facts even though such facts may be inconsistent with a plea bargain. * * * Notwithstanding the plea bargain the judge may sentence the offender within the statutory parameters of the plea bargained offense based upon what the record shows to have been the real facts of the offense. Thus, seriousness of the offense will generally be based upon the judge's perception of the real facts of what occurred, and the plea bargained offense will simply set a ceiling on what the judge can impose." Under the concept of "real offense sentencing" a defendant receives the benefit of his plea when his sentence is within the statutory parameters of the pled offense. Therefore, sentencing courts may consider the real facts behind a plea agreement when sentencing a defendant. {¶ 1} A defendant's plea to a lesser charge is not a statutory factor under the felony sentencing guidelines. State v. Murphy, Meigs App. No. 00CA13, 2001-Ohio-2461. However, following a plea agreement, courts must look at the totality of the circumstances when determining the seriousness of an offender's conduct. Id.; State v. Coleman, Meigs App. No. 00CA10, 2001-Ohio-2436 citing State v. Garrard (1997),124 Ohio App.3d 718, 722, 707 N.E.2d 546. See, also, R.C. 2929.12(A) (stating that the sentencing court may consider "any other factors that are relevant to achieving" the purposes and principles of sentencing). {¶ 2} Real offense sentencing allows sentencing courts to take into account the true facts of a case even though a plea bargain may result in a more lenient charge. This is one of those cases. The grand jury indicted Huntley on two counts of rape, two counts of gross sexual imposition and one count of disseminating matter harmful to juveniles. Instead of taking his case to trial, Huntley pled no contest to three counts of gross sexual imposition. By doing so, Huntley lowered his possible maximum sentence by more than thirty years. However, because real offense sentencing is permissible, Huntley cannot escape the true facts of his offense. For example, the PSI included a doctor's report and various victim impact statements, which supported a finding that Huntley's conduct more closely resembled rape, rather than gross sexual imposition. Therefore, Huntley received the benefit of his plea bargain because the court sentenced him within the statutory parameters for his pled offenses, i.e., gross sexual imposition, and he avoided a possible, additional prison term of thirty years under the rape charges. The sentencing court did not err in considering the true facts behind Huntley's offenses. {¶ 3} In the first prong of his argument, Huntley contends the United States Supreme Court's decision in Apprendi v. New Jersey (2000),530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, controls the outcome here. Apprendi involved a New Jersey statute that allowed judges, at sentencing, to elevate convicted offenses to a higher degree with a finding supported only by the preponderance of the evidence. Apprendi,530 U.S. at 491. The Court held, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. {¶ 4} Huntley pled no contest to three counts of gross sexual imposition, each a third-degree felony. R.C. 2907.05(A)(4) and R.C.2907.05(B). If a court chooses to imprison for a third-degree felony, it may order a sentence of one, two, three, four or five years. R.C.2929.14(A)(3). Prior to pleading no contest, Huntley faced a possible, maximum sentence of forty-five years, six months. By pleading no contest, Huntley guaranteed himself a possible, maximum sentence of fifteen years. The court's twelve-year sentence is clearly not "beyond the prescribed statutory maximum" penalty. Therefore, like other districts who have addressed this issue, we find Apprendi inapplicable to Ohio's sentencing scheme, so long as the sentence is not outside the possible, maximum sentence for the crime to which the defendant pleads. See State v. Carter, Lucas App. No. CR-99-2248, 2002-Ohio-3433; State v.Seese, Lorain App. Nos. 01CA007852, 01CA007889, 2002-Ohio-1998; State v.Brown, Montgomery App. No. 18643, 2002-Ohio-277; and State v. Neal (Aug. 13, 2001), Stark App. No. 2001CA00067. {¶ 5} In the final prong of his argument, Huntley contends his sentence is disproportionate to the seriousness of his conduct. To support his argument, Huntley compares his three consecutive four-year sentences with sentences in Cuyahoga and Hamilton County. The party claiming the disproportionality in sentencing has the burden of establishing it. State v. Hanson, Lucas App. No. L-01-1217, 2002-Ohio-1522; Griffin Katz, Ohio Felony Sentencing Law (2002 Ed.) at 583. Moreover, "a compilation of many cases from within the reviewing district is more likely to be a valid demonstration of prevailing practices than are idiosyncratic examples from other districts." Griffin Katz, at 585. So long as the court considers the appropriate sentencing factors, the legislature vests it with "discretion to determine the most effective way to comply with the purposes and principles of sentencing." R.C. 2929.12(A). {¶ 6} Huntley has failed to carry his burden because he has not cited any cases from our district that illustrate how his sentence is disproportionate to the seriousness of his offense. In addition, a review of R.C. 2929.12(B) and (C) reveals that Huntley's offenses are significantly more serious than the normal offense. For example, both of Huntley's victims were young children who suffered serious physical and psychological injury due to his conduct. R.C. 2929.12(B)(1) and (2). Huntley also abused the trust of the victims and their parents because, although not related, the family considered him a grandfather figure; therefore, his relationship facilitated the offenses. R.C. 2929.12(B)(7). Sentencing courts may also consider "any other factors that are relevant to achieving [the] purposes and principles of sentencing." R.C. 2929.12(A). Therefore, the sentencing court properly considered what it perceived as the true facts of the offenses when it relied on the PSI, which revealed the true nature of Huntley's offenses. Moreover, none of the factors in R.C. 2929.12(C), which illustrate factors indicating an offense is less serious than normal, apply to Huntley. {¶ 7} Since Huntley did not establish disproportionality, the sentence is within the statutory limits, and the sentencing court made the statutorily required findings and reasons in support of its findings, the court did not violate Ohio's felony sentencing scheme. The court's order sentencing Huntley to consecutive four-year terms on three counts of gross sexual imposition is proper in all respects. JUDGMENT AFFIRMED. Kline, J. Evans, J.: Concur in Judgment and Opinion. 1 Huntley, at no time, has appealed his classification as a sexually oriented offender. 2 All references to the Ohio Revised Code refer to the version of the code in effect at the time of Huntley's offenses. 3 After Huntley's objections, the court made a finding that the allegations in the PSI were true. Therefore, the court complied with R.C. 2951.03(B)(5), which mandates the court make one of two findings when confronted with objections to a PSI. The court must either "make a finding regarding the allegation" or "make a determination that no finding is necessary * * * because the factual matter will not be taken into account in the sentencing of the defendant." R.C. 2951.03(B)(5)(a) and (b).

2016-07-06 06:42:22.224861+00

DECISION AND JUDGMENT ENTRY Grover Scott, Jr. appeals his conviction for obstructing official business by interfering with a police investigation into the whereabouts of Milah Wright. Scott contends that his conviction is against the sufficiency and weight of the evidence. In order to obtain a conviction for obstruction, the state must show that Scott actually "hampered or impeded" the officer's investigation. Scott seems to admit that he gave a false statement that Wright was not present. However, he contends that his subsequent grant of consent to search the premises negated any potential hampering effect that his "lie" may have had upon the investigation. We assume without deciding that this argument is legally correct. But, that is not to say Scott's conduct cannot be punished. He overlooks the fact that Wright testified he told her to go upstairs and hide from the police. This is a separate act that had the effect of impeding the investigation since Officer Mertz was unable to locate her in the house. In June 2001, Milah Wright and Heather Fent, both juveniles, were spending the day with Heather's grandmother, Regina Carver. At some point twenty-six year old Grover Scott, Carver's neighbor, invited the girls into his home. Wright testified that she knew her mother and Carver did not want her around Scott. Nevertheless, the girls spent part of the afternoon with Scott at his home without Carver's knowledge or consent. As they were leaving, Scott told the girls that they could come back anytime. A short while later Wright went back to Scott's home, once again without Carver's consent. However, Carver saw Wright go into Scott's home. Carver told Marilyn Fent, Heather's mother that she had seen Wright go into Scott's home. Ms. Fent contacted the Greenfield Police Department and Officer Mertz responded. Ms. Fent was concerned because Penny Barrett, Wright's mother, was on her way to pick her daughter up from Carver's home and Wright's whereabouts were unknown. Officer Mertz went to Scott's home and repeatedly asked if Wright was there. Each time Scott responded that Wright was not in his home and that he had not seen her since the night before. Scott then gave Officer Mertz permission to search his home. Officer Mertz searched the first level of the house but did not go upstairs. Officer Mertz candidly testified, "He [Scott] was doing some construction in there on the stairway and it's my fault, I didn't go upstairs and look. I looked around the downstairs and the upstairs being under construction I just didn't think anybody would be up there. I didn't go up stairs and look." Ten to twenty minutes after Officer Mertz's abbreviated search, Carver saw Wright running out the back door of Scott's home and told Officer Mertz. When Officer Mertz talked to Wright, she told him that she was at Scott's home and that she hid when the police showed up so that they would not get into trouble. At trial, Wright testified that she was inside Scott's home on two different occasions on the day in question. Wright stated that Scott told her to hide upstairs and she did so because she was afraid they would get in trouble. Moreover, Wright testified that she hid in an upstairs closet and heard the police question Scott. Wright even acknowledged that she heard Scott lie to the police. After talking to Wright, Officer Mertz went back to Scott's home and arrested him for obstructing official business. After a bench trial, the Highland County Court, Greenfield Division, found Scott guilty. This appeal followed. Scott assigns the following errors for our review: FIRST ASSIGNMENT OF ERROR "THE COURT ERRED IN FINDING DEFENDANT GUILTY BECAUSE THE MAKING OF AN UNSWORN STATEMENT TO A POLICE OFFICER IS NOT AN ACTION THAT CONSTITUTES OBSTRUCTING OFFICIAL BUSINESS IN VIOLATION OF ORC 2921.31." SECOND ASSIGNMENT OF ERROR "THE COURT ERRED IN FINDING DEFENDANT GUILTY WHERE THE EVIDENCE WAS NOT SUFFICIENT TO MEET THE ELEMENTS OF THE OFFENSE AND WHERE THE SUBSEQUENT FINDING OF GUILTY WAS CONTRARY TO THE SUFFICIENCY OF THE EVIDENCE, ALL IN VIOLATION OF DUE PROCESS OF LAW GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION." THIRD ASSIGNMENT OF ERROR "THE FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." We construe Scott's first assignment of error to argue that, as a matter of law, the evidence is insufficient because his consent to a search of his home negated any hindering effect that his "lie" may have had upon Officer Mertz's investigation. Scott's second assignment of error also challenges the sufficiency of the evidence. Therefore, we will consider Scott's first and second assignments of error together. Our 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, could convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. We must inquire whether the evidence, if viewed in the light most favorable to the prosecution, could convince any rational trier of fact that the essential elements of the crime were proven beyond a reasonable doubt. Id. citing Jackson v. Virginia (1979), 443 U.S. 307,99 S.Ct. 2781, 61 L.Ed.2d 560. The trial court convicted Scott of obstructing official business in violation of R.C. 2921.31(A), a second degree misdemeanor. R.C. 2921.31(A) states that "[n]o 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 the public official's official capacity, shall doany act that hampers or impedes a public official in the performance of the public official's lawful duties." [Emphasis Added.] R.C. 2921.31's legislative history reveals that the "act" must have its intended effect, i.e., must actually hamper or impede the investigation, before it can be punishable. See 1973 Legislative Service Commission Commentary to R.C. 2921.31. Moreover, we have previously held that a conviction for obstruction of official business properly focuses on the defendant's conduct and the effect that the conduct has on the public official. SeeState v. Neptune (April 21, 2000), Athens App. No. 99CA25. This view is consistent with that of the Ohio Supreme Court. See Statev. Lazzaro, 76 Ohio St.3d 261, 1996-Ohio-397, 667 N.E.2d 384. InLazzaro, the defendant actually hampered and impeded an assault investigation because she told the officer that there were no witnesses, when in fact she had possession of the sole witness's statement that described the assault as intentional. Since the officer was unaware of the only witness, he concluded that the assault was accidental and did not file criminal charges. Four days later the defendant called the investigating officer and informed him that there was a witness who thought the assault was intentional. As a result, the officer reopened the assault case and filed criminal charges, which resulted in a guilty plea. The Supreme Court concluded that Lazzaro's unsworn false oral statement that there were no witnesses to the assault impeded the investigation because it had its intended effect, which was to conceal a criminal act. Id. at 265-66. Scott contends the issue here is whether his false statement that Wright was not present actually hampered Officer Mertz's investigation. He contends that it could not in light of his consent to search; i.e., the reason Mertz did not find Wright is Mertz's self-imposed limitation on the search. Even if we assume this proposition is legally correct, Scott overlooks his instructions to Wright to hide. Clearly, Officer Mertz's efforts to find Wright failed in part because he limited his search to the downstairs. However, his efforts were also thwarted by Scott's instruction to Wright to hide. This instruction to hide is "an act" within the meaning of the statute. It clearly had its intended effect, which was to prevent Mertz from finding Wright. Scott's consent to a search of his home did not negate that result. Absent the instruction to hide, Wright would have been downstairs and open to observation. Moreover, given how well she followed instruction, even a reasonable search may not have been successful. A reasonable factfinder could conclude that Scott encouraged Officer Mertz to search his home because he knew that Wright was well hidden and would not be found. Therefore, viewed in the light most favorable to the prosecution, Scott's act of telling Wright to hide and her compliance with his request, impeded Officer Mertz's investigation. Scott's first and second assignments of error are overruled. Scott's third assignment of error challenges the weight of the evidence. Scott contends that the state did not show, beyond a reasonable doubt, that his actions hampered or impeded the police investigation. The legal concepts of sufficiency and weight of the evidence are different. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52,678 N.E.2d 541, paragraph two of the syllabus. Therefore, even though we have already addressed the sufficiency of the evidence, it is still necessary to address the weight of the evidence because it is possible that the evidence may be legally sufficient to go to the jury, yet be so logically unpersuasive that it cannot support a conviction. See State v.Robinson (1955), 162 Ohio St. 486, 487, 124 N.E.2d 148. Our function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports the verdict.Thompkins, 78 Ohio St.3d at 387. In order to undertake this review, we must sit as a "thirteenth juror" and review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether the court clearly lost its way and created a manifest miscarriage of justice. Id. citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. If we find that the court clearly lost its way, we must reverse the conviction and order a new trial. Id. We will not reverse a conviction so long as the state presented substantial evidence for a reasonable trier of fact to conclude that all of the essential elements of the offense were established beyond a reasonable doubt. State v. Getsy, 84 Ohio St.3d 180, 193-94,1998-Ohio-533, 702 N.E.2d 866. We are also guided by the presumption that the jury "is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Seasons Coal Co. v.Cleveland (1984), 10 Ohio St.3d 77, 79, 461 N.E.2d 1273. Here, the trial court, acting as the factfinder, specifically found that Wright's testimony was more credible than Scott's because it was corroborated by other witnesses. The state introduced substantial evidence to show that Wright was in Scott's home, Scott knew that she was in his home, Scott told her to hide and Wright hid in an upstairs closet. Therefore, after carefully reviewing the record, we cannot conclude that the trial court "clearly lost its way and committed a manifest miscarriage of justice" in finding Scott guilty. Scott's third assignment of error is overruled. Scott's conviction for obstruction of official business is supported by sufficient evidence and is not against the manifest weight of the evidence. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Highland County Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Kline, J. Evans, J.: Concur in Judgment and Opinion.

2016-07-06 06:42:24.315671+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant Jabbar Jacobs appeals from his conviction for drug trafficking with a firearm specification. He contends that the court denied him due process by failing to inform him, before he entered his guilty plea, that he was subject to a period of post-release control; the court "illegally" ordered his driver's license to be suspended following his release from prison; the court imposed a fine upon him although it had not informed him that he was subject to a fine; the court erroneously refused to vacate the fine; and the sentence imposed in the court's journal entry differed from that imposed in open court. We agree that the trial court erroneously failed to inform appellant that he was subject to a period of post-release control before it accepted his plea. Therefore, we reverse the judgment of conviction and remand with instructions to vacate the guilty plea and proceed on the indictment. {¶ 2} Appellant was charged in a nine-count indictment filed July 23, 2002, with possession of crack cocaine with firearm and major drug offender specifications; trafficking in crack cocaine with firearm and major drug offender specifications; possession of cocaine with a firearm specification; trafficking in cocaine with a firearm specification; trafficking in marijuana with a firearm specification; possession of criminal tools; having a weapon while under disability; illegal manufacture of cocaine and/or crack cocaine with a firearm specification; and tampering with evidence. {¶ 3} The court held a hearing on April 10, 2003, at which it reviewed the terms of a proposed plea agreement. Appellant agreed to enter a plea of guilty to the second count, trafficking in crack cocaine, which was amended to reduce the amount of contraband involved and to remove the major drug offender specification. As part of the agreement, appellant agreed to a sentence of one year on the firearm specification, to be served prior and consecutive to a term of seven years' imprisonment on the underlying charge, for a total of eight years' imprisonment. He further agreed to forfeiture of various confiscated items, including currency, bank accounts, and automobiles. {¶ 4} Following the state's recitation of the terms of the proposed agreement, the court addressed the appellant. The court inquired about appellant's understanding of his right to a jury trial, his right to representation by counsel, his right of confrontation, his right to compel witnesses on his own behalf, and his right to require the state to prove his guilt at a trial at which he could not be forced to testify against himself. The court further asked whether appellant understood that his guilty plea waived all of these rights and was a complete admission of guilt. The court informed appellant that the potential sentence if he was convicted of all counts was a minimum of 21 years' imprisonment and a maximum of 58 years, but that his agreed sentence was eight years, consisting of seven years on the underlying offense and one year on the firearm specification, to be served prior and consecutive thereto. Appellant confirmed that this agreed sentence was the only promise made to him. {¶ 5} The court told appellant that the potential sentence on count two as amended was three to ten years in one year increments, plus one year on the drug specification to be served prior and consecutive to the underlying sentence, and that he was not eligible for probation on that offense. The court ensured that the appellant understood that the sentence imposed was the sentence he would serve, and would not be reduced for good behavior. Finally, the court inquired whether there was anything appellant did not understand about the proceedings, and whether he was satisfied with his attorney. The court then asked appellant how he wished to plead to amended count two; appellant replied "guilty." Appellant agreed that the plea was voluntary, and further agreed to the forfeiture. {¶ 6} The court immediately proceeded to sentence appellant to one year of imprisonment on the firearm specification, to be served prior and consecutive to a sentence of seven years' imprisonment on count two. The court further imposed five years of post-release control, during which time appellant was to pay court costs, a basic supervision fee, and any applicable fines. The court finally imposed a fine of $20,000. {¶ 7} In this delayed appeal, appellant contends that his plea was not knowingly and voluntarily entered because the court did not inform him that he would be subject to a period of post-release control before it accepted his plea. "R.C.2943.032(E) requires that, prior to accepting a guilty plea for which a term of imprisonment will be imposed, the trial court must inform a defendant regarding post-release control sanctions in a reasonably thorough manner. Post-release control constitutes a portion of the maximum penalty involved in an offense for which a prison term will be imposed." State v. Crosswhite, Cuyahoga App. No. 86345, 2006-Ohio-1081, ¶ 7 (citing Woods v. Telb,89 Ohio St.3d 504, 2000-Ohio-171). The Ohio Supreme Court has noted that the trial court's failure to notify the defendant of post-release control sanctions before the court accepts a guilty or no-contest plea may form the basis to vacate the plea. Statev. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085. "Further, this court and the courts of eight other appellate districts agree that where the trial court failed to personally address a defendant and inform him of the maximum length of the post-release control period before accepting his guilty plea, the court fails to substantially comply with Ohio R. Crim. P. 11(C)(2)(a) and R.C. 2943.032(E)." Crosswhite, 2006-Ohio-1081, at ¶ 11 (citations omitted). {¶ 8} The trial court did not substantially comply with Crim.R. 11(C) and R.C. 2943.032(E) by informing appellant of the post-release control sanctions that would be imposed. The court did not mention post-release control at all during the plea hearing. Although it did notify him at sentencing, informing a defendant at sentencing that he is subject to post-release control will not validate a guilty plea entered without such knowledge. State v. Pendleton, Cuyahoga App. No. 84514,2005-Ohio-3126, ¶ 12 (quoting State v. Delventhal, Cuyahoga App. No. 81034, 2003-Ohio-1503). In any case, even when it imposed post-release control at sentencing, the court did not inform appellant of the consequences of a violation. Therefore, the court erred by accepting appellant's guilty plea. We reverse appellant's conviction and remand with instructions to vacate the order accepting appellant's guilty plea and proceed on the indictment. This disposition renders moot appellant's remaining assignments of error. Reversed and remanded with instructions. It is ordered that appellant recover from appellee costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Celebrezze, Jr., P.J., and Blackmon, J., concur.

2016-07-06 06:42:24.348767+00

DECISION AND JUDGMENT ENTRY {¶ 1} Appellant Richard Marshall appeals the trial court's judgment on the pleadings entered in favor of appellee RL. Collins Company. He argues that the trial court failed to construe the exhibits attached to his complaint and the factual allegations in his favor when resolving appellee's motion for judgment on the pleadings. We agree. Appellant disputed the existence of the contractual terms that appellee attached to its answer. This created a factual dispute that the court could not appropriately resolve in a Civ.R. 12(C) motion for judgment on the pleadings. Accordingly, we sustain *Page 2 appellant's sole assignment of error and reverse and remand the trial court's judgment. I. FACTS {¶ 2} On January 2, 2007, appellant filed a complaint against appellee. He alleged breach of contract, negligence, and breach of implied warranty. He claimed that starting in September 1997, he entered into three written contracts with appellee to store personal property in a public storage area that appellee owned. He asserted that the contracts consisted of three, two-page documents, which he attached to his complaint. He alleged that in January of 2005, the area where he stored his property became flooded and damaged his property. Appellant averred that appellee breached the contractual duty to care for his property, to protect it from flooding, and to warn him of the potential for flooding. Appellant further asserted that appellee negligently failed to warn him of the potential for flooding, negligently failed to protect his property, and negligently failed to provide a safe place for his property. {¶ 3} Appellant attached to his complaint an agreement dated September 17, 1997, which stated, in part, that it was "subject to the terms and conditions on the reverse side of this page." A second page, which may or may not have been the reverse side, stated: "We do not carry insurance *Page 3 on your items in storage." The second agreement is dated February 24, 2001, and again states that it "is subject to the terms and conditions on the reverse side of this page." A second page, which again may or may not have been the reverse side, stated: "We do not carry insurance on your items in storage. You must contact your insurance company for insurance on your items." The third agreement is dated November 6, 2004 and again states that it "is subject to the terms and conditions on the reverse side of this page." A second page states: "We do not carry insurance on your items in storage. You must contact your insurance company for insurance on your items." It also states in a separate paragraph: "We are not responsible for flood, tornado, blizzard, or other natural[ly] occurring acts, all of which have been a part of the Circleville and central Ohio climate and experience historically." {¶ 4} In its answer, appellee alleged that appellant failed to include the reverse side of the three contracts, which included the following language: "5. Your Own Insurance and Liability: You must carry your own insurance on property stored in the space. Any insurance proceeds payable to you as a result of loss or damage to property on the premises shall be for your sole benefit. Likewise, any insurance proceeds payable because of insurance purchased by us shall be for our sole benefit. We each waive any respective right to subrogation against each other. We will not be liable to you or to any other person for any loss, injury, or damage to you or any employee, agent or guest of yours, your personal property, or any other person arising from any *Page 4 cause whatsoever, including without limitation, any acts of negligence, improper construction or failure to repair any building or improvement on the premises. * * * * 11. Relationship of Parties, Assignments, Subletting: We both agree that no provision in this rental agreement or any act of the parties will create any bailment or any relationship between us and you other than the relationship of a landlord and tenant. You have no right to assign this agreement or sublet the space without our written consent." Appellee claimed that the foregoing language relieved it of liability for damage to appellant's property. {¶ 5} Appellee subsequently filed a motion for judgment on the pleadings. It claimed that paragraph 5 was "a complete release of liability." {¶ 6} Appellant argued in his memorandum contra that none of the language in paragraph 5 is in any of the three contract documents that he signed. {¶ 7} The trial court subsequently granted appellee's motion. The court found that paragraphs 5 and 11 relieved appellee of liability. Appellant timely appealed the trial court's judgment. II. ASSIGNMENT OF ERROR {¶ 8} Appellant raises the following assignment of error: {¶ 9} I. "THE COURT ERRED BY GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS." *Page 5 III. LEGAL ANALYSIS {¶ 10} In his sole assignment of error, appellant argues that the trial court erred by granting appellee's motion for judgment on the pleadings. He alleges that factual disputes remained regarding the contents of the contracts. He claims that the document appellee attached to its answer differed from the documents appellant attached to his complaint and that the trial court could not resolve this discrepancy when considering appellee's motion for judgment on the pleadings. {¶ 11} Appellee argues that even if the trial court should not have considered the document attached to its answer, the court's judgment was still proper. Appellee contends that the language contained in the documents appellant attached to his complaint show that appellant waived liability against appellee. {¶ 12} We independently review a trial court's decision regarding a Civ.R. 12(C) motion for judgment on the pleadings. See Dolan v.Glouster, 173 Ohio App.3d 617, 2007-Ohio-6275, 879 N.E.2d 838, at ¶ 7. A trial court may not grant a motion for judgment on the pleadings unless the court finds that the plaintiff can prove no set of facts that would entitled him to relief. See, e.g., Corporex Dev. Constr. Mgt., Inc. v.Shook, Inc., 106 Ohio St.3d 412, 2005-Ohio-5409, 835 N.E.2d 701, at ¶ 2; State ex rel. *Page 6 Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570,664 N.E.2d 931, Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 165-166,297 N.E.2d 113. In determining whether to grant a motion for judgment on the pleadings, the court must construe all material allegations of the complaint and all reasonable inferences that can be drawn from it in the plaintiffs favor. See, e.g., Peterson. "Thus, Civ.R. 12(C) requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law." Midwest Pride,75 Ohio St.3d at 570. {¶ 13} Here, the parties dispute which documents comprise the contract. Appellant attached six pages, consisting of three separate contracts, to its complaint. Appellee attached an additional document to its answer, but appellant denies that this document is a part of any of the contracts. Because this is a factual dispute, the trial court should not have considered the document appellee attached to its answer. Instead, it should have looked solely to the allegations of appellant's complaint. {¶ 14} Because the trial court based its decision upon the existence of disputed contractual terms, we must reverse and remand its judgment so that it may consider the propriety of appellee's motion based solely upon the allegations in appellant's complaint and the attached exhibits.1 *Page 7 Accordingly, we sustain appellant's sole assignment of error and reverse and remand the trial court's judgment for further proceedings consistent with this opinion. JUDGMENT REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGSCONSISTENT WITH THIS OPINION. *Page 8 JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION and that the Appellant recover of Appellee costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Abele, P.J. and Kline, J.: Concur in Judgment and Opinion. 1 Although appellee suggests that we can determine the issue independently by looking solely to appellant's complaint and the attached exhibits, we decline to do usurp the trial court's role as the initial decision-maker. See Murphy v. Reynoldsburg (1992),65 Ohio St.3d 356, 360, 604 N.E.2d 138; Bentley v. Pendleton, Pike App. No. 03CA722,2005-Ohio-3495 (declining to consider issues raised in cross-assignments of error when trial court had not addressed them); Bohl v. TravelersIns. Group, Washington App. No. 03CA68, 2005-Ohio-963 (declining to consider issues raised in cross-assignments of error when trial court had not addressed them); Farley v. Chamberlain, Washington App. No. 03CA48, 2004-Ohio-2771 (remanding matter to the trial court so that it, not appellate court, would first consider the issue). *Page 1

2016-07-06 06:42:20.730172+00

Close

This is an appeal from a judgment of the Franklin County Court of Common Pleas, directing payment of attorney fees from the campaign fund of Thomas E. Ferguson, defendant-appellee. In October 1993, the Ohio Attorney General appointed a special prosecutor to investigate whether Ferguson had solicited campaign contributions from employees in the State Auditor's Office. Based on the investigations, the state of Ohio, plaintiff-appellant, filed State v. Ferguson, case No. 95CR-2269, and indicted Ferguson on eighty counts. However, this indictment was dismissed at the request of the special prosecutor because the indictment failed to state a prosecutable violation. Then, the state filedState v. Ferguson, case No. 95CR-3401, in June 1995, and indicted Ferguson on twenty-five counts: nine counts of theft in violation of R.C. 2921.41, thirteen counts of solicitation in violation of R.C. 124.57 and 124.62, and three counts of prohibited activities in violation of R.C. 3517.13. On March 4, 1996, the state agreed to dismiss sixteen counts of the indictment if Ferguson agreed to plead no contest to nine counts of illegal campaign solicitation in violation of R.C.124.57 and 124.62. The plea agreement explained Ferguson's punishment for each of the nine counts to which he would plead guilty. One of the punishments was that Ferguson had to relinquish control of his campaign funds to a new treasurer who would cooperate with the Ohio Attorney General in order to distribute the funds to charities and other entities. *Page 57 Ferguson accepted the plea agreement, and Ferguson, his attorney, the state, and the trial court signed it. The trial court found Ferguson guilty on nine counts of illegal campaign solicitations and, in compliance with the plea agreement, sentenced Ferguson to six months of incarceration on each count, with two counts to be served consecutively and the rest of the counts to be served concurrently with the first two counts. The trial court suspended the confinement part of the sentence for one year of probation, Ferguson had to pay a fine and costs, complete community service, and relinquish control of his campaign fund to the treasurer as conditions of probation. Kevin Rooney, Ferguson's criminal defense attorney, became the new campaign fund treasurer. Rooney and the Attorney General's Office were not able to agree on the distribution of the campaign funds. The state filed a motion asking the trial court to enforce the terms of Ferguson's probation or, in the alternative, to revoke Ferguson's probation. The trial court held a status conference on June 12, 1996, directing Rooney to liquidate the campaign fund assets and to provide an accounting to the Attorney General's Office and ordering the parties to submit a list of the charities that were to receive money. The trial court also established a date for a hearing at which the charities would be selected and the contribution amounts would be determined. In addition, the trial court would determine whether Ferguson's attorney fees or other costs could be paid from the campaign funds. The hearing was continued, but the state requested a status conference. At the conference, the state argued that the plea agreement prevented Ferguson from paying his attorney fees out of his campaign fund and that, on July 30, 1996, the Ohio Elections Commission ("OEC") had agreed with the state in Advisory Opinion 96ELC-08 that, to pay legal fees for criminal defense, would violate R.C. 3517.13(O)(2). On February 28, 1997, the trial court heard arguments regarding the plea agreement and, on May 8, 1997, the trial court issued a written decision, finding that the plea agreement did not preclude attorney fees or other costs from being disbursed from the campaign fund. The trial court allowed the partial payment of Ferguson's attorney fees. The state filed a timely notice of appeal and secured a stay of the trial court's order pending the outcome of the appeal. We granted the state leave to appeal the issue of whether the payment of Ferguson's attorney fees with campaign funds violates R.C. 3517.13(O); specifically, whether the payment of attorney fees with campaign funds for the defense against criminal charges is a violation. The state then filed its appellate brief. Ferguson moved to strike portions of the state's brief because it discussed matters outside the scope of the granted leave to appeal issue. We agreed and limited our appellate review to the issue on which we granted leave. As a result, we only need to determine whether the trial *Page 58 court sanctioned a result prohibited by R.C. 3517.13(O) by ordering the payment of Ferguson's attorney fees for his criminal defense with campaign funds. The state brings a single assignment of error: "The trial court's order directing payment of attorney and treasurer fees out of appellee Ferguson's campaign funds altered the parties' plea agreement as accepted in the sentencing entry and in the process sanctioned a result prohibited by Ohio Revised Code § 3517.13(O)." R.C. 3517.13(O) states: "No beneficiary of a campaign fund shall convert or accept for personal or business use, and no person shall knowingly give to a beneficiary of a campaign fund, for the beneficiary's personal or business use, anything of value from the beneficiary's campaign fund, including, without limitation, payments to a beneficiary for services the beneficiary personally performs, except as reimbursement for any of the following: "(1) Legitimate and verifiable prior campaign expenses incurred by the beneficiary; "(2) Legitimate and verifiable, ordinary, and necessary prior expenses incurred by the beneficiary in connection with duties as the holder of a public office, including, without limitation, expenses incurred through participation in nonpartisan or bipartisan events if the participation of the holder of a public office would normally be expected[.]" Both the state and Ferguson have presented OEC advisory opinions that have addressed R.C. 3517.13(O) for us to consider. We note that these advisory opinions are neither binding authority nor completely on point. In Advisory Opinion 87-9, the OEC decided that a public officeholder may not use campaign funds to pay for legal representation to defend himself against criminal charges of tampering with records, theft in office, falsification and bribery. The OEC stated that defending against crimes was not a legitimate expense related to the duties of a public office under R.C. 3517.13(O)(2). However, in No. 96S-072, which is an OEC opinion that addressed another Ferguson matter, the OEC upheld the essential holding in Advisory Opinion 87-9, but noted that limited circumstances may arise in which the OEC would allow campaign funds to be used to pay for expenses in defending allegations of criminal conduct. See Advisory Opinion 96ELC-08, discussing No. 96S-072. The OEC stated that determinations about whether to make an exception would be made on a case-by-case basis. In the specific circumstances of case No. 96S-072, the OEC decided that Ferguson's campaign funds could be used to pay for *Page 59 expenses incurred in defending allegations of criminal conduct because that criminal case was summarily dismissed before it went to trial. The OEC Advisory Opinion 96ELC-08, which is the advisory opinion requested by the state during this case and presented to the trial court, followed Advisory Opinion 87-9 and determined that an expenditure for legal fees to defend against criminal charges is an inappropriate use of campaign funds on behalf of the officeholder under R.C. 3517.13(O)(2). The OEC stated that "R.C. § 3517.13(O)(2) requires that an expenditure be related to the duties of the public office. Therefore, a proper campaign expense must be related, according to recognized principles or accepted standards, to a duty of the public office." The OEC concluded that the officeholder's duties do not include defending himself against charges of criminal conduct and, therefore, criminal defense expenses are not legitimate expenses and cannot be paid from campaign funds. After reviewing these OEC advisory opinions and several others, we note that not all payment of attorney fees with campaign funds is forbidden. The OEC allows the payment of attorney fees with campaign funds for representation against charges brought before the OEC itself. Advisory Opinion 87-15; see, also, Advisory Opinion 90-4. Additionally, the payment of attorney fees with campaign funds for representation in declaratory actions is allowable because these are civil actions. The OEC also has specifically decided that Ferguson's attorney fees could be awarded with campaign funds for representation in a criminal case because the charges were dropped by the prosecutor before going to trial. See Advisory Opinion 96ELC-08, discussing No. 96S-072. Based on that OEC opinion, we conclude that the payment of attorney fees with campaign funds for case No. 96CR-2269 the indictment that was dismissed at the request of the special prosecutor because it failed to state a prosecutable violation-is allowable too. Therefore, before we specifically determine whether the trial court sanctioned a result prohibited by R.C.3517.13(O) by ordering the payment of Ferguson's attorney fees for his criminal defense with campaign funds, we must first decide whether any of the award of attorney fees by the trial court was an award of fees charged for criminal defense not related to case No. 95CR-2269. The trial court in this case decided that some campaign funds could be applied to the payment of Ferguson's attorney fees: "This court is of the opinion that counsel for Mr. Ferguson are entitled to some compensation from these funds, but must seek the bulk of their compensation from Mr. Ferguson himself. The court therefore finds that the firm of Messerman and Messerman receive $5,000.00 of their outstanding request of $34,000.00. "Mr. McTigue is to receive his balance of $10,930.00. *Page 60 "Mr. Rooney is to receive $13,000.00 in fees for his activities as Treasurer and counsel for the fund and that he further is to receive $5,000.00 for his portion of the defense. Based on the record in this case, we determine that the trial court's award of fees to Donald McTigue was legitimate. The record reveals that none of the attorney fees charged by McTigue were for criminal defense but, rather, were for expenses that already have been determined to be allowable. However, we cannot determine from the record what portion of the attorney fees, if any, was awarded by the trial court to Rooney and to the firm of Messerman and Messerman for allowable expenses and what portion, if any, was awarded for the defense of criminal charges not related to case No. 95CR-2269. Accordingly, the state's assignment of error is overruled in regard to McTigue and sustained otherwise. The judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed in part, and this cause is remanded to the trial court with instructions to determine the amount of attorney fees, if any, that was awarded from Ferguson's campaign fund for criminal defense not related to case No. 95CR-2269. The trial court may reopen the evidence if it deems it appropriate. Judgment affirmed in part, reversed in part and cause remandedwith instructions. LAZARUS, J., concurs. BOWMAN, J., dissents.

2016-07-06 06:42:20.76941+00

Baird

This cause comes before the court upon the appeal of Adhesive Impressions, Inc. from an order in the Summit County Court of Common Pleas granting summary judgment to Amer, Cunningham Brennan Co., L.P.A. ("Amer"). Adhesive Impressions had filed a claim against Amer alleging legal malpractice. We reverse. In 1986, Adhesive Impressions sought to purchase an adhesive laminator for use in its manufacture of adhesive-backed decals. In this regard, the company's president, Joseph McCabe, instituted negotiations with Lembo-Midland, Ltd., a Canadian company. The two companies reached a preliminary agreement, and a proposed purchase agreement was submitted by Lembo-Midland to Adhesive Impressions. This draft agreement was sent by McCabe to Amer, with the following instructions: "Besides requiring your counsel on the agreement, we feel that 93% of the payment before shipment, installation in our plant or training is awfully heavy up front. Would you suggest going along with the 1/3 down, another payment on shipment — then a balance payment 30 days after completion of the installation here? Thank you." At subsequent negotiations, Nickolas P. Andreeff, one of Amer's attorneys, represented Adhesive Impressions in a line-by-line review and negotiation of the purchase agreement. The parties signed a final agreement on May 31, 1988. Numerous terms of the contract went unfulfilled by Lembo-Midland and, eventually, Lembo-Midland fraudulently withheld delivery of the equipment, became insolvent, and ceased business operations. As a result, Adhesive Impressions forfeited a $100,000 deposit and incurred additional damages stemming from the delays, the resulting loss of business, and capital improvements made to accommodate the new machine. *Page 534 Adhesive Impressions brought suit against Lembo-Midland and also instituted the instant action against Amer and Andreeff. Adhesive Impressions claimed that Amer and Andreeff had committed legal malpractice in failing to fulfill a duty owed in its negotiation of the contract. Specifically, it was alleged that the attorneys had a duty to protect Adhesive Impressions' interests and investment by (1) determining the credit worthiness and general standing among business people of Lembo-Midland, (2) retaining local counsel to determine trade practices and usages in Lembo-Midland's locality for purchase-sale transactions, and (3) negotiating contract terms which would protect it from loss in the event of the breach of the contract by Lembo-Midland. In response, Amer filed a motion for summary judgment, arguing that the scope of its duty to Adhesive Impressions was determined by McCabe's initial inquiry requesting assistance, which did not include any of the actions listed above. Adhesive Impressions submitted, with its reply, an affidavit of an expert who purported to set forth the standard for attorneys doing business in the area and who opined that Amer had not met this standard in its dealings with Adhesive Impressions. This opinion was based upon the expert's review of the depositions of McCabe and Andreeff. Although Andreeff's complete deposition was not filed in the case, McCabe's deposition clearly outlines the actions of both Adhesive Impressions and the law firm during the pendency of the transaction. The trial court granted the motion for summary judgment, reasoning that Amer's duty to Adhesive Impressions was limited to the negotiation of the contract. According to the court, Amer was under no additional duty to the company to perform any of the allegedly omitted acts because it was not specifically requested to do so and because the decision to enter into the contract was a business decision and was not fundamentally legal in nature. It is from that order that Adhesive Impressions now appeals, asserting two interrelated assignments of error: "I. The trial court erred in granting the motion for summary judgment [because] plaintiff-appellant provided expert opinion evidence as to the negligence and substandard legal representat[ion] of the defendants-appellees. "II. The trial court erred in (1) ignoring evidence offered by plaintiff-appellant, (2) construing evidence most favorably to the movant, defendants-appellees, (3) making findings of fact upon which reasonable minds might differ, (4) drawing inferences from evidence where there are competing inferences, and (5) making erroneous conclusions of law." An order granting summary judgment will be upheld where, construing the evidence most strongly in favor of the nonmoving party, the record discloses that no genuine issues of material fact exist and the moving party is entitled to *Page 535 judgment as a matter of law. Parenti v. Goodyear Tire RubberCo. (1990), 66 Ohio App.3d 826, 586 N.E.2d 1121. However, summary judgment is appropriate only when reasonable minds can come to but one conclusion after reviewing the evidence and that conclusion is adverse to the nonmoving party. Civ.R. 56(C). In its order, the trial court properly set forth that, in order to establish a claim for legal malpractice, the aggrieved party must show "(1) an attorney-client relationship giving rise to a duty, (2) a breach of that duty, and (3) damages proximately caused by the breach." Krahn v. Kinney (1989),43 Ohio St.3d 103, 538 N.E.2d 1058, syllabus. While it is undisputed that there was an attorney-client relationship established in this case, an issue remains as to the scope of the duty owed by Amer. Amer provided the affidavit of Andreeff, an attorney and a party to this case, which stated that Amer fulfilled its duty to Adhesive Impressions by simply reviewing and negotiating the contract. On the other hand, Adhesive Impressions presented the affidavit of attorney John Alexander. Alexander states in part: "8. Since Adhesive Impressions, Inc. had not had prior dealings with Lembo-Midland, Ltd. before the present sale and purchase of the machine in question, it was incumbent upon its legal counsel to do at least one or both of the following: "(1) Immediately contact legal counsel in Ontario to discover as much as possible about the reputation of Lembo-Midland, its credit-worthiness and general standing among business people in Ontario; "(2) Immediately contact Ontario legal counsel to discover the trade practices and usages in Ontario, Canada, concerning the escrowing of funds in this type of purchase-sale transaction. "* * * "10. The person doing the negotiating for Adhesive Impressions, Inc. or advising the negotiator should have pressed for contract terms that would have protected the $100,000.00 initial payment from being lost if the deal were not completed. For example, the following ideas should have been discussed and, perhaps, insisted upon in order to protect the purchaser: "(1) Escrow the $100,000.00 and release portions of it as construction of the machine progressed. "(2) Have the Seller's officer, i.e. Mr. Thomas W. Lembo, certify in affidavit form the progress of machine construction to justify release of the escrowed funds. "11. Even if these terms would not have been acceptable to the Seller, that fact alone would have alerted the Buyer that it was dealing with a party who may *Page 536 not perform. At that point the Buyer would have had the opportunity to think again as to whether it really wanted to proceed with Lembo-Midland. "12. In my opinion the services rendered by Mr. Andreeff fell below the accepted standard of care exercised by attorneys in the Northern Ohio area during the time in question to the damage of Adhesive Impressions. My aforementioned opinions are held with a reasonable degree of Attorney certainty." See Gibbons v.Price (1986), 33 Ohio App.3d 4, 13, 514 N.E.2d 127, 135. The trial court noted that, in determining the duty of legal counsel, a court must consider the scope and nature of the responsibility entrusted. Furthermore, the services rendered must be fundamentally legal in nature, unless otherwise established between the parties. The court went on to determine that the actions which Adhesive Impressions alleged fell within Amer's duty did not fall within the duty, as spelled out in McCabe's initial correspondence, because they are essentially "business" judgments and are not fundamentally legal in nature. This, however, ignores the affidavit of John Alexander. Alexander set forth that, in negotiating a contract, an attorney acting within the acceptable standard would have performed additional functions and made additional inquiries than those made by Amer, in an effort to protect the client. Questions of fact, therefore, clearly exist for the jury on the issues of the scope of Amer's duty and whether Amer fell below the requisite standard of care. See Gibbons, 33 Ohio App.3d at 14,514 N.E.2d at 136. Granting summary judgment, therefore, was inappropriate. The judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion. Judgment reversedand cause remanded. COOK, P.J., and DICKINSON, J., concur. *Page 537

2016-07-06 06:42:21.314187+00

French

{¶ 1} Plaintiff-appellant, Complete General Construction Company ("Complete General"), appeals from the judgment of the Franklin County Court of Common Pleas in favor of defendant-appellee, Kard Welding, Inc., d.b.a. Kard Bridge Products ("Kard"). We affirm. {¶ 2} On November 20, 2002, the Ohio Department of Transportation ("ODOT") requested bid proposals for Project No. 020508 ("ODOT project"), which involved the construction of a highway on-ramp and off-ramp for State Route 315, north of King Avenue, in Columbus. Bids were required to be sealed and submitted to ODOT by December 6, 2002, at 10:00 a.m. {¶ 3} In anticipation of submitting a bid for the ODOT project, Complete General solicited quotes from prospective subcontractors, including subcontractors *Page 121 for the project's structural steel components. On December 5, 2002, at approximately 9:30 p.m., Kard faxed a quote (the "original quote") to Complete General for the structural steel components, including prices for seven line items set forth in the ODOT project requirements. Of particular relevance to this appeal, Kard's original quote included a price of $259,260 for line item 0360. {¶ 4} The original quote stated that it was "FIRM FOR 30 DAYS" from December 6, 2002, included a term requiring payment "NET 30 [days] FROM INVOICE DATE," and provided that "ALL 863 MATERIAL SHOP DRAWINGS SHALL BE STAMPED AND DATED AS CHECKED AND ACCEPTED BY A REGISTERED PROFESSIONAL ENGINEER HIRED BY [Complete General]."1 The original quote also included the Kard Group Standard Terms and Conditions of Sale, which provided: Acceptance of any order from [Complete General] for purchase of materials or services or both is expressly made conditional on [Complete General's] assent to the terms and conditions of sale contained in [Kard's] Quotation, in [Kard's] Acknowledgment, and in these "Kard Group Standard Terms and Conditions of Sale", and [Kard] agrees to furnish materials and/or services only upon these conditions. The original quote does not contain a handwritten signature, but contains the following typewritten notation directly above the Kard Group Standard Terms and Conditions: "KENNETH OSTERLOH / VICE PRESIDENT / KARD BRIDGE." {¶ 5} On December 6, 2002, at approximately 7:53 a.m., Dave Anderson, a Complete General estimator, spoke with Ken Osterloh, who confirmed Kard's original quote and confirmed that Kard could meet Complete General's anticipated delivery schedule. After speaking with Osterloh, and based on Kard's original quote, Complete General deducted $89,390 from its bid to ODOT. After making this deduction, Complete General submitted its bid to ODOT at approximately 9:45 a.m. on December 6, 2002. {¶ 6} After ODOT opened the bids on December 6, 2002, Complete General learned that it was the apparent low bidder. ODOT officially awarded Complete General the general contract on December 19, 2002. {¶ 7} At all relevant times, it was Complete General's practice to issue a purchase order to a subcontractor when it agreed on terms and wished to enter into a formal contract. On December 18, 2002, Anderson faxed a copy of Complete General's standard "TERMS AND CONDITIONS" to Osterloh with a *Page 122 cover sheet stating, "[Those terms and conditions] would be made part of our [purchase order] to you and would replace your terms. Please review and advise. Payment would be as we discussed, prompt!" For the next several weeks, Complete General and Kard engaged in negotiations concerning the terms and conditions that would govern a subcontract for the structural steel components. Particular disagreements related to the terms for payment and a term regarding which party bore the risk for the professional engineer's review of Kard's shop drawings. Complete General never issued a purchase order or subcontract to Kard in relation to the ODOT project. {¶ 8} On January 7, 2003, as part of the parties' continuing negotiations over terms, Osterloh faxed Anderson a set of revised terms and conditions that restated Kard's prices for the relevant line items and proposed an increase in Kard's selling price in exchange for Kard's maintaining continued liability for errors in the shop drawings overlooked during the professional engineer's review. Upon review of this fax, Anderson noticed that Kard was working off a price for line item 0360 different from that listed in the original quote. After questioning Osterloh, Anderson learned that Kard had submitted a revised quote to Complete General, via fax, shortly after 9:30 a.m. on December 6, 2002, based on a mistake in the original bid. The revised quote increased the price for line item 0360 by $24,890. Anderson did not learn of the revised quote until he received Osterloh's January 7, 2003 fax, more than 30 days later. {¶ 9} On January 16, 2003, after learning of the revised quote and of Kard's refusal to honor the original quote for line item 0360, Complete General submitted a purchase order and entered into a subcontract for the structural steel components of the ODOT project with PDM Bridge, L.L.C. ("PDM"), in the amount of $570,000. {¶ 10} On March 19, 2003, Complete General filed a complaint against Kard in the Franklin County Court of Common Pleas. After a stipulated dismissal without prejudice on March 3, 2004, Complete General refiled its complaint on March 2, 2005, asserting claims for breach of contract, promissory estoppel, and detrimental reliance. Kard filed an answer on April 22, 2005, along with a counterclaim for a declaratory judgment and breach of contract. On January 25, 2007, the trial court denied a motion for summary judgment filed by Complete General. {¶ 11} Pursuant to an order of reference, a magistrate conducted a jury-waived trial on several nonconsecutive days between January 31, 2007, and March 16, 2007. On the final day of trial, Kard withdrew its counterclaim. The magistrate issued his decision, including findings of fact and conclusions of law, on April 26, 2007, finding in favor of Kard. The magistrate rejected Complete General's argument that the original quote was a firm offer under R.C. 1302.08. The *Page 123 magistrate also concluded that Complete General's promissory-estoppel claim failed because Complete General was not seeking performance from Kard in accordance with the terms of the original quote and because Complete General did not notify Kard within a reasonable time that it was accepting the original quote. {¶ 12} Complete General filed timely objections to the magistrate's decision on May 10, 2007, and filed supplemental objections on March 4, 2008. The trial court overruled Complete General's objections, adopted the magistrate's decision, and entered judgment in favor of Kard on June 3, 2008. Complete General thereafter filed a timely notice of appeal. {¶ 13} Complete General asserts the following assignments of error: Assignment of Error No. 1: Kard's Original Quote constituted a firm offer under Ohio Revised Code § 1302.08 and was irrevocable. Assignment of Error No. 2: The trial court erred in ruling that Kard was not obligated to honor its Original Quote submitted to Complete General. Complete General maintains that the trial court's judgment is contrary to law and must be reversed. {¶ 14} When reviewing a trial court's judgment following a bench trial, an appellate court should be "`guided by a presumption that the findings of the trier-of-fact were indeed correct.'" Rosepark Properties, Ltd. v. Buess,167 Ohio App.3d 366, 2006-Ohio-3109, 855 N.E.2d 140, ¶ 18, quoting Seasons Coal Co. v. Cleveland (1984),10 Ohio St.3d 77, 79-80, 10 OBR 408, 461 N.E.2d 1273. If the judgment is supported by "`some competent, credible evidence going to all the essential elements of the case,'" an appellate court may not reverse the judgment as being against the manifest weight of the evidence. Seasons Coal at 80, 10 OBR 408,461 N.E.2d 1273, quoting C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, syllabus. In contrast to determinations of fact, which are accorded considerable deference, questions of law are reviewed de novo. Nationwide Mut. Fire Ins. Co. v. Guman Bros.Farm (1995), 73 Ohio St.3d 107, 108, 652 N.E.2d 684. {¶ 15} In its first assignment of error, Complete General contends that the trial court erred by concluding that the original quote was not a firm offer. R.C. 1302.08 discusses firm offers and provides: An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months * * *. *Page 124 Kard's original quote states: "THIS QUOTATION IS FIRM FOR 30 DAYS FROM [December 6, 2002] UNLESS OTHERWISE NOTED BELOW" and contains no contradictory language. Therefore, Complete General maintains that the original quote was a firm offer and that Kard violated R.C. 1302.08 by attempting to revoke the original quote when it faxed its revised quote the following day. Accordingly, Complete General contends that Kard became immediately liable for Complete General's cover costs. {¶ 16} The magistrate concluded, in a footnote, that the original quote was not a firm offer because it was not signed, as required by R.C. 1302.08. On appeal, Complete General argues that the original quote was signed. Complete General also argues that it lacked a legitimate opportunity to accept the original quote, based on testimony by Osterloh that he did not intend to be bound by the original price. In response, Kard argues that the Uniform Commercial Code ("UCC"), as codified in R.C. Chapter 1302, does not apply to its original quote and that even if the UCC applies and even if its original quote was a firm offer, Complete General did not accept the original quote within the period of irrevocability. Thus, Kard maintains that no contract was formed between the parties and that Complete General may not recover its cover costs. {¶ 17} Complete General maintains that it is entitled to cover costs under R.C. 1302.86. R.C. 1302.86(A) provides that after a seller breaches, "the buyer may `cover' by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller." R.C. 1302.86(B) provides, "The buyer may recover from the seller as damages the difference between the cost of cover and the contract price," along with certain incidental and consequential damages, but less expenses saved because of the seller's breach. Thus, R.C. 1302.86 expressly presupposes a contractual relationship between the buyer and seller, stating that a buyer may cover after a seller's breach. It is fundamental that the formation of a contract requires an offer, acceptance of the offer, and consideration. Callander v. Callander, 10th Dist. No. 07AP-746, 2008-Ohio-2305, 2008 WL 2026431, ¶ 14, citingHoyt v. Nationwide Mut. Ins. Co., 10th Dist. No. 04AP-941, 2005-Ohio-6367, 2005 WL 3220192, ¶ 40. Absent a contract between the parties, there can be no breach.Collins v. Flowers, 9th Dist. No. 04CA008594,2005-Ohio-3797, 2005 WL 1763615, ¶ 52. {¶ 18} Assuming, without deciding, that the UCC applies and that the original quote constituted a firm offer, we agree that Complete General's claim would nevertheless fail because Complete General did not accept either Kard's original or revised quote, and, therefore, there was no contract between the parties. Kard's original quote was dated December 6, 2002. If, as Complete General argues, the original quote was a firm offer, Complete General was *Page 125 entitled to accept it within 30 days from December 6, 2002, regardless of Complete General's attempt to revoke the quote by issuing a revised quote. At the expiration of the 30-day period of irrevocability, Complete General, although still unaware of the revised quote, had not acted to accept Kard's original quote by issuing a purchase order. Rather, the parties continued to negotiate the terms and conditions that would govern any contractual relationship that developed between them. {¶ 19} Complete General contends that it did not have a real opportunity to accept the original quote based on Osterloh's trial testimony that once he had sent out the revised quote, he did not intend to honor the price for line item 0360 in the original quote. Osterloh maintained that once he sent the revised quote, the original quote was "obsolete" and "void." Osterloh also testified that if Complete General had sent Kard a purchase order on the original quote, Kard "would have talked about thirty days, that's for sure." We reject Complete General's argument that it was not required to accept Kard's original quote because acceptance would have been in vain. Despite Osterloh's subsequent testimony that Kard would have contested its obligation to honor the original quote, Complete General had ample opportunity to accept the original quote within the 30 days that that quote was purportedly firm. Complete General's argument to the contrary is especially disingenuous here, where Complete General remained unaware of the revised quote during the entire 30-day period set forth in the original quote. Thus, price was not even an issue in the parties' negotiations until after the original quote had ostensibly expired, and the price discrepancy accordingly played no role in Complete General's failure to accept Kard's original quote. Upon review, we conclude that Osterloh's after-the-fact testimony does not negate the requirement that Complete General was required to accept Kard's offer before seeking cover damages from Kard. {¶ 20} Ultimately, we find Complete General's first assignment of error moot because, even had Kard's original quote been firm for 30 days, Complete General did not accept that quote. Therefore, we overrule Complete General's first assignment of error. {¶ 21} In its second assignment of error, Complete General asserts that the trial court erred in determining that Kard was not obligated to honor its original quote under Kard's claims of promissory estoppel and detrimental reliance. Ohio does not recognize a cause of action for detrimental reliance.Carpenter v. Scherer-Mountain Ins. Agency (1999),135 Ohio App.3d 316, 327, 733 N.E.2d 1196, fn. 3, citingGottfried-Smith v. Gottfried (1997),119 Ohio App.3d 646, 650, 695 N.E.2d 1229. "Detrimental reliance arises as anelement of various causes of action (e.g. promissory estoppel, misrepresentation) but is not a cause of action unto itself." (Emphasis sic.) Id. Here, the allegations in *Page 126 Complete General's claims for promissory estoppel and detrimental reliance are nearly identical, and we will address those claims together as a claim for promissory estoppel based on Complete General's alleged detrimental reliance on Kard's original quote. {¶ 22} The doctrine of promissory estoppel provides that "`[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.'" Gralewski v. Bur. of Workers'Comp., 167 Ohio App.3d 468, 2006-Ohio-1529, 855 N.E.2d 879, ¶ 47, quoting Restatement (Second) of Contracts (1981), Formation of Contracts-Consideration, Section 90; McCroskeyv. State (1983), 8 Ohio St.3d 29, 30, 8 OBR 339,456 N.E.2d 1204. {¶ 23} An early and seminal case applying the doctrine of promissory estoppel in the context of construction bidding is Drennan v. Star Paving Co. (1958),51 Cal.2d 409, 333 P.2d 757. In that case, the defendant subcontractor submitted the lowest bid for the paving portion of a construction project. The same day, the plaintiff general contractor incorporated the defendant's bid into its own bid. The morning after the plaintiff was awarded the general contract, he stopped at the defendant's office, whereupon the defendant's construction engineer stated that the defendant had made a mistake and would not honor its bid. The plaintiff responded that he expected the defendant to perform in accordance with its bid because the plaintiff had used the defendant's bid and was awarding the contract to the defendant. The Supreme Court of California found no evidence that the defendant, by its bid, made an option contract, supported by consideration. Nor did the court find evidence that warranted interpreting the plaintiff's use of the defendant's bid as an acceptance. Nevertheless, the court affirmed the judgment in favor of the plaintiff for the difference between the defendant's bid and the plaintiff's ultimate cost for the paying. {¶ 24} Drennan, 51 Cal.2d 409,333 P.2d 757, expressed the question presented as whether the plaintiff's reliance made the defendant's offer irrevocable. Based on the Restatement of Contracts (1932), Formation of Informal Contracts, Section 90, the court stated that the defendant's bid "constituted a promise to perform on such conditions as were stated expressly or by implication therein or annexed thereto by operation of law" and that the "[d]efendant had reason to expect that if its bid proved the lowest it would be used by [the] plaintiff." Id. at 413, 333 P.2d 757. The court analogized the scenario to an offer for a unilateral contract, which becomes irrevocable once part of the requested performance has been performed because the main offer includes an implied, subsidiary promise that the offeror will not revoke his offer, the part performance furnishing consideration for the subsidiary promise. Thus, the court held that "[r]easonable *Page 127 reliance resulting in a foreseeable prejudicial change in position affords a compelling basis also for implying a subsidiary promise not to revoke an offer for a bilateral contract," the reasonable reliance serving to hold the offeror to his offer in lieu of consideration. Id. at 414, 333 P.2d 757. The Drennan analysis recognized and attempted to curb the unfairness that may result from applying traditional contract principles, i.e., that an offer may be withdrawn at any time before it is accepted, in a construction bidding context. {¶ 25} In Drennan, 51 Cal.2d at 415,333 P.2d 757, the court held as follows: When plaintiff used defendant's offer in computing his own bid, he bound himself to perform in reliance on defendant's terms. * * * Defendant had reason not only to expect plaintiff to rely on his bid but to want him to. Clearly defendant had a stake in plaintiff's reliance on its bid. Given this interest and the fact that plaintiff is bound by his own bid, it is only fair that plaintiff should have at least an opportunity to accept defendant's bid after the general contract has been awarded to him. The promissory estoppel in Drennan, resulting from the plaintiff's use of the defendant's quote in its own bid, did not create an enforceable contract for the paving work. Indeed, the court stated that a general contractor may not delayacceptance of a subcontractor's offer after being awarded the general contract in hopes of obtaining a better offer while claiming a continuing right to rely on the subcontractor's original offer. Thus, while promissory estoppel prevented the defendant from revoking its offer before the plaintiff had an opportunity to accept it, the defendant was only bound to perform in accordance with its offer once the plaintiff accepted. In that case, the plaintiff promptly informed the defendant that the plaintiff had been awarded the general contract and that the plaintiff was awarding the subcontract to the defendant, thus binding the defendant to perform. The effect of the promissory estoppel was solely to preclude the defendant from denying the contract based on a claim that it had withdrawn the offer prior to acceptance. {¶ 26} Although not mentioning promissory estoppel, the Eighth District Court of Appeals relied onDrennan in Wargo Builders, Inc. v. Douglas L. CoxPlumbing Heating, Inc. (1971), 26 Ohio App.2d 1,55 O.O.2d 23, 268 N.E.2d 597. At paragraph two of the syllabus, the court held as follows: A subcontractor who makes a "bid" or "quote" which constitutes an offer to a general contractor, who submits a bid in reliance upon such offer, is bound to perform in accordance with the terms of that offer when the general contractor (1) is awarded the contract and (2) within a reasonable time thereafter notifies the subcontractor that the offer is accepted. Under such circumstances the subcontractor is liable in damages to the general contractor for failure to perform. *Page 128 In Wargo, the court faced a factual scenario nearly identical to that in Drennan, in that the defendant subcontractor demanded additional money to perform after the plaintiff general contractor included the defendant's bid in its own bid, but before the plaintiff had accepted the defendant's bid. After the defendant demanded additional money, the plaintiff accepted the defendant's original offer by sending a telegram demanding performance at the originally stated price. The court stated that the defendant's bid was an offer to perform, upon which the plaintiff reasonably and foreseeably relied in submitting its own bid. Under those circumstances, the court stated that it would be unreasonable to permit the defendant to revoke its offer until the plaintiff had a reasonable time after award of the general contract to accept the offer. Based on Drennan, Wargo held that the defendant was required to keep his original offer open for a reasonable time, but that the defendant "could not be bound to perform * * * unless the general contractor accepted [the] offer." Id. at 4, 55 O.O.2d 23, 268 N.E.2d 597. Thus, like inDrennan, the plaintiff's acceptance of the defendant's offer remained the paramount concern regarding whether the defendant was bound to perform. Wargo found sufficient circumstances to show that the plaintiff, in fact, had accepted the defendant's offer, thus binding the defendant to perform and rendering the defendant liable in damages for his failure to do so. {¶ 27} More recently, the Eighth District Court of Appeals discussed the Wargo holding in terms of promissory estoppel. See R.P. Carbone Constr. Co. v. N.Coast Concrete, Inc. (1993), 88 Ohio App.3d 505,624 N.E.2d 326. Carbone noted that both Drennan andWargo "recognize that the subcontractor is bound only by the terms of its original offer." In Carbone, based on negotiations between the plaintiff general contractor and the defendant subcontractor regarding the price and the scope of the work, the trial court concluded that the plaintiff never accepted the subcontractor's original offer, as represented by its bid. Because the promissory-estoppel theory espoused byDrennan and Wargo binds a subcontractor to perform only when the general contractor has accepted the subcontractor's offer within a reasonable time, Carbone held that the subcontractor was not required to perform. The requirement of acceptance prevents the injustice that may result when a subcontractor is obligated to perform based on the general contractor's incorporation of the subcontractor's bid into its own bid, but where the general contractor is not obligated to award the job to the subcontractor. {¶ 28} In this case, Complete General reasonably and foreseeably relied on Kard's offer to perform, as set forth in Kard's original quote, to the extent that it incorporated the original quote in its own bid. As a result, in accordance withDrennan and Wargo, Kard was obligated to keep its original quote open for acceptance by Complete General for a reasonable time after ODOT awarded the *Page 129 general contract to Complete General. Accordingly, we conclude that Kard's revised quote, which Kard sent less than a half-hour before Complete General's sealed bid was due and which Complete General did not learn of until over a month later, was ineffective to revoke the original quote. Nevertheless, Kard was not bound to perform under its original quote unless Complete General accepted its offer. {¶ 29} A general contractor's mere use of a subcontractor's quote in formulating a bid for a general contract does not constitute acceptance of the subcontractor's offer. See Drennan; Wargo. Anderson's own trial testimony aptly demonstrates that Complete General's use of Kard's original quote did not constitute an acceptance sufficient to bind the parties. Anderson testified that Complete General's use of Kard's bid did not mean that it would ultimately award Kard the subcontract. Although it was Complete General's practice to issue a purchase order to a subcontractor when it desired to enter into a contract, Complete General did not submit a subcontract or a purchase order to Kard. Moreover, Anderson did not even recall notifying Kard that Complete General was going to award it the contract, stating: "I don't think I ever told Ken [Osterloh] that he had the job." To the contrary, uncomfortable with the terms and conditions included with Kard's original quote, Complete General attempted to negotiate the terms and conditions that would govern any subcontract between the parties. On December 18, 2002, Complete General sent Kard a copy of Complete General's standard terms and conditions with a note stating that those terms and conditions would be made part of any purchase order issued to Kard and asking Kard to "review and advise." Complete General's own note establishes that there was no meeting of the minds and intent to be bound. {¶ 30} Additional evidence that Complete General did not intend to be bound exists in Anderson's testimony that despite including Kard's original quote in its bid to ODOT, Complete General continued to negotiate bids submitted by other structural steel subcontractors in the hope that those subcontractors would reduce their bids. In fact, it is Complete General's customary practice to contact other subcontractors to determine whether they are willing to reduce their bids before Complete General awards a subcontract, a tactic commonly referred to as bid-shopping. Bid-shopping is defined as "[a] general contractor's effort — after being awarded a contract — to reduce its own costs by finding a subcontractor that will submit a lower bid than the one used in calculating the total contract price." Black's Law Dictionary (8th Ed. 2004) 172. Complete General's admission of engaging in this practice belies its assertion that it accepted Kard's original quote or continued to rely on that quote beyond including it in its bid. {¶ 31} Despite the absence of any evidence that it had accepted Kard's original quote and despite its proposition of materially different terms and conditions, *Page 130 Complete General maintains that Kard was required to abide by its original quote. Complete General's argument hinges onLichtenberg Constr. Dev., Inc. v. Paul W. Wilson,Inc. (Mar. 10, 2000), 1st Dist. No. C-990533,2000 WL 33250695, which it contends expanded the Wargo holding to permit a general contractor to propose terms and conditions different from those contained in the subcontractor's bid while still holding the subcontractor to its bid. In that case, on March 17, 1998, the subcontractor, Wilson, made a bid to the general contractor, Lichtenberg, and Lichtenberg used Wilson's bid in submitting its own bid. On April 29, 1998, Lichtenberg received a signed general contract, and on April 29 or 30, 1998, Lichtenberg orally informed Wilson that it intended to enter into a subcontract with Wilson. On May 4, 1998, Lichtenberg sent Wilson a subcontract, which Wilson refused to execute because it contained disagreeable terms. The trial court concluded that Wilson was not obligated to honor its bid because Lichtenberg did not give Wilson timely notice that it intended to use Wilson as its subcontractor. The appellate court reversed after considering the timeliness of Lichtenberg's notice to Wilson and the reasonableness of Lichtenberg's proposed terms. {¶ 32} Lichtenberg reaffirmed, as the applicable law, the Wargo rule that a subcontractor is bound to perform in accordance with its bid when the general contractor submits a bid in reliance on the subcontractor's bid, the general contractor is awarded the contract, and the general contractor notifies the subcontractor within a reasonable time that the subcontractor's offer is accepted.Lichtenberg then stated as follows: Here, the second part of the rule is at issue: whether Lichtenberg gave Wilson notice within a reasonable time that Wilson's offer, or bid, was accepted. In other words, did Lichtenberg inform Wilson within a reasonable time that Lichtenberg intended to enter into a subcontract with Wilson? In analyzing the second part of the Wargo rule, the court concluded that the starting point for determining the reasonableness of Lichtenberg's notice to Wilson should have been the date that the project owner awarded the general contract, not the date of Wilson's bid, because a general contractor cannot enter into a subcontract until it has been awarded the general contract. Because Lichtenberg orally notified Wilson that it intended to enter into a subcontract with Wilson within one day after receiving notice that it had been awarded the general contract, the court held that Lichtenberg notified Wilson within a reasonable time. Nevertheless, the court determined that an issue remained as to whether the terms of Lichtenberg's subcontract were reasonable. {¶ 33} Wilson argued that it did not execute, and was not required to execute, Lichtenberg's subcontract because it included disagreeable and unreasonable terms, which Lichtenberg refused to negotiate. The court stated, "[I]f the *Page 131 general contractor * * * proposes a subcontract with terms that the subcontractor should not reasonably have expected when the subcontractor made the bid, then the subcontractor will not be obligated to honor the bid." Lichtenberg. Because the trial court had not addressed the reasonableness of the subcontract's terms, the appellate court remanded the case for findings of fact and conclusions of law on that issue. The court stated, however, that if the trial court should determine that Lichtenberg's proposed contract terms were customary in the industry, then Wilson was required to honor its bid. {¶ 34} Based on Lichtenberg, Complete General argues that the trial court erred by concluding that its claims failed because Complete General did not seek to have Kard perform in accordance with the terms of the original quote, because Complete General did not notify Kard within a reasonable time that it was accepting Kard's offer, and because Kard should not have reasonably expected certain of Complete General's terms and conditions. {¶ 35} The magistrate concluded that "Complete General did not notify Kard within a reasonable time after December 6, 2002 that it was accepting Kard's offer." Complete General correctly argues that December 6, 2002 — the date the bids were opened — was an improper starting point for determining whether it notified Kard within a reasonable time that it was accepting Kard's offer. However, given Complete General's failure to accept Kard's original quote at all, the trial court's reference to an improper date does not discount its conclusion that Complete General did not notify Kard within a reasonable time that it was accepting Kard's offer, as required to recover under Drennan and Wargo. {¶ 36} The magistrate next concluded that Kard was not liable to honor its original quote because Complete General did not seek to have Kard perform in accordance with the terms of the original quote. Based on Lichtenberg, Complete General argues that Kard was bound to honor its original quote as long as Complete General's proposed terms were reasonable. We do not find Lichtenberg, which has not been cited in the nine years since its issuance, determinative. First, Lichtenberg is factually distinguishable. Not only did Lichtenberg orally notify Wilson that it accepted its quote and intended to enter into a subcontract, Lichtenberg actually delivered a subcontract to Wilson. Thus, at least facially, Lichtenberg accepted Wilson's offer. Furthermore, there is no indication in Lichtenberg that Wilson's subcontract quote was conditioned upon acceptance of specified terms and conditions. To the contrary, here, Kard's original quote stated that it was "expressly made conditional on * * * assent to the terms and conditions" contained therein and in Kard's standard terms and conditions of sale attached to the quote. Complete General's rejection of Kard's specified terms and proposal of materially different terms cannot be construed as an acceptance of Kard's offer, especially in the absence of a subcontract or purchase order *Page 132 executed by Complete General. Rather, Complete General's actions are more akin to the proposal of a counteroffer. SeeFoster v. Ohio State Univ. (1987), 41 Ohio App.3d 86,88, 534 N.E.2d 1220, citing Restatement (Second) of Contracts (1981), Formation of Contracts-Mutual Assent, Section 59 ("A reply to an offer which purports to accept but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counteroffer"). {¶ 37} Even were we to accept Complete General's premise that the doctrine of promissory estoppel applies in this context, not only to provide a general contractor a reasonable opportunity to accept a subcontractor's quote, but also to obligate performance by the subcontractor, Complete General's actions weigh against application of promissory estoppel in this case. Recognizing that contractors could easily abuse the doctrine of promissory estoppel, Drennan determined that the doctrine would be inapplicable in the following circumstances: (1) the general contractor's reliance on the subcontractor's quote was unreasonable, (2) the subcontractor's quote was expressly revocable, (3) the general contractor unreasonably delayed acceptance, or (4) the general contractor engaged in bid-shopping. As promissory estoppel is an equitable doctrine, courts have imposed certain limitations to prohibit its application when the general contractor's conduct renders it unfair to hold the subcontractor to its bid. Among the grounds upon which courts have denied recovery are the following: (1) the general contractor did not rely on the bid, (2) the general contractor failed to accept the bid within a reasonable time, and (3) the general contractor made a counteroffer, in effect rejecting the subcontractor's offer. See, e.g.,Drennan, 51 Cal.2d at 415, 333 P.2d 757 ("[A] general contractor is not free to delay acceptance after he has been awarded the general contract in the hope of getting a better price. Nor can he reopen bargaining with the subcontractor and at the same time claim a continuing right to accept the original offer"); Hedden v. Lupinsky (1962), 405 Pa. 609,176 A.2d 406; Haselden-Langley Constructors, Inc. v. D.E. Farr Assoc, Inc. (Colo.App. 1983), 676 P.2d 709. See also 1 Corbin, Corbin on Contracts (Rev.Ed. 1993) 292, Section 2.31 ("it is generally agreed that the general contractor cannot, after being awarded the contract, reopen the bidding with the subcontractors to chisel down the bids, while at the same time maintaining that the low-bidding subcontractor remains liable"). {¶ 38} Here, despite its claimed reliance on Kard's original quote, after obtaining the general contract from ODOT, Complete General admittedly resumed negotiations with other subcontractors regarding the structural steel subcontract and did not accept Kard's original quote. For these reasons, we conclude that the trial court did not err in determining that Kard was not bound *Page 133 to honor its original quote. Accordingly, we overrule Complete General's second assignment of error. {¶ 39} Having overruled both of Complete General's assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. BRYANT and KLATT, JJ., concur. 1 ODOT Supplemental Specification 863.08 requires a contractor to submit shop drawings for structural steel components to the Office of Structural Engineering and requires that those drawings be approved by a registered professional engineer.

2016-07-06 06:42:21.491719+00

Nichols

Plaintiff in error became the owner of a first lien mortgage upon a two hundred acre farm, situated in Trumbull county, Ohio, to secure payment of a $3500 loan, and the mortgage was recorded December 21, 1925, in the office of the Trumbull county Recorder. *Page 117 On June 30, 1930, the Board of Commissioners of Trumbull county, Ohio, under authority of Section 6862 et seq., General Code, undertook proceedings to secure a new right of way for a portion of State Highway (I.C.H.), 330, Section D, and after notice to, and agreement with, the owner of fee title, the commissioners paid such owner $2800 as compensation and damages, and thereupon took possession of and improved, for highway purposes, 69/100 acres of the mortgaged premises (being a strip 60 feet wide and 513 feet long). The old road through the premises was not vacated, but continues in use to serve certain abutting owners, leaving a two-acre parcel which is claimed to be isolated and useless for farm purposes between the two roads. The mortgage lien holder was not made a party to the appropriation proceedings, and, so far as the record discloses, no notice thereof was had by the mortgagee until the time of filing its amended petition in the court below. The mortgage debt was in default, with approximately $3200 owing thereon at the time the commissioners settled with the owner of the fee title. The mortgagee instituted its action in the Common Pleas Court of Trumbull county, Ohio, for personal judgment on the note secured by the mortgage, for foreclosure of the mortgage and equitable relief, naming the Commissioners of Trumbull county defendants to the amended petition, and alleging that the Board of County Commissioners appears to have some interest in the premises described in the amended petition, by reason of the use of a portion of the property as a public road; their use and right therein, or thereon, being subordinate and junior to this plaintiff's lien thereon. The amended petition prays for personal judgment against the maker of the note and another claimed to be liable thereon, and prays that the mortgage of plaintiff be adjudged the first and best lien *Page 118 on the premises described in the amended petition, and that, upon default in the payment of the amount found due the plaintiff, the premises be sold according to law, and out of the proceeds the amount found due plaintiff, after the payment of costs and taxes, be paid to it. The further prayer of the amended petition is that all of the defendants named therein be required to make answer to this amended petition, setting forth what interest, if any, they have in the subject matter thereof, or be forever barred. No answer was filed by the Board of County Commissioners to this amended petition, although in the journal entry of the court, as shown under date of August 5, 1933, it is stated that the cause came on for hearing on the petition and amended petition of plaintiff, the answer of the Board of County Commissioners of Trumbull county, Ohio, and the evidence. As shown in the journal entry, the court found all of the defendants had been duly and legally served with summons, or had entered their appearance in the action and were in default for answer or demurrer, and that the allegations of the pleadings are thereby confessed by them to be true: "and the defendant, The Board of Commissioners of Trumbull county have appeared and filed answer." The court found that there is due to the plaintiff the sum of $3275.42 as of April 27, 1933, with interest on such amount from that date, being the amount due upon the note set forth in the amended petition, and for which amount personal judgment was rendered in favor of the plaintiff and against the defendants, George L. Hurford and John A. Klenner. The court further found that the mortgage set up in the amended petition had been duly executed to secure the payment of the note, and that the mortgage had been duly filed for record in the office of the Recorder of Trumbull county, on the 21st day of December, 1925, and duly recorded therein, and that such mortgage is the first *Page 119 and best lien against the real estate described in plaintiff's petition, except the lien for taxes and costs. The court found that the conditions of the mortgage have been broken, and that the same has become absolute; that the plaintiff is entitled to have the mortgage foreclosed and the real estate sold for the purpose of paying the indebtedness, "except the right of way of the Commissioners of Trumbull county, hereinafter referred to." The mortgaged premises were ordered sold, "except the right of way claimed by the Board of Commissioners of Trumbull county, Ohio." The entry of the court further states, as follows: "The court hereby reserves for further consideration the issues raised by plaintiff's petition and the answer of the defendant, The Board of Commissioners of Trumbull county, Ohio." The mortgaged premises were duly appraised and sold by the sheriff, the mortgagee purchasing the same at the sum of $3,000, being two-thirds of the appraised value thereof. The sale was confirmed by the court, the costs, in the amount of $80.21, were first ordered paid out of the proceeds of the sale, and the court finding that no taxes were due upon the premises, and that the first mortgagee was the purchaser of the premises, it was ordered that the sum of $2919.79 apply upon plaintiff's judgment, "and there remaining due on said judgment an unsatisfied balance of $435.60 it is ordered that plaintiff recover said sum with interest at 6 per cent thereon from September 26, 1933, from the defendants, George L. Hurford and John A. Klenner, and execution is awarded therefor." The record further shows that executions for the unsatisfied balance of $435.60 of such judgment were issued and returned "unsatisfied for want of property whereon to levy," and it further appears that the judgment debtors have no property from which the unpaid balance can be made. The court having reserved for further consideration *Page 120 the issues presented and raised by plaintiff's petition and the answer of the Board of Commissioners of Trumbull county, Ohio, there having been excepted from the property sold under foreclosure the right of way of the Commissioners of Trumbull county, there was filed in the court by plaintiff, Union Joint Stock Land Bank, an application for further hearing and leave to introduce evidence or testimony "as to the amount of damage suffered by it by the reason of the failure of the Board of County Commissioners to join plaintiff as a party to the appropriation proceedings, or to see to a proper application of the compensation and damage which was paid to the owner of fee title; and plaintiff prays the court that the damage so suffered by it shall be found to be the sum of $435.60, with interest at 6 per cent thereon from September 26, 1933." A stipulation of facts having been filed in the case, the cause came on further to be heard June 1, 1935, "upon the pleadings and particularly the allegation of plaintiff's petition which states: `The defendant, The Board of County Commissioners of Trumbull County, Ohio, appears to have some interest in the premises described herein by reason of the use of a portion of the property herein described as a public road; their said use and right thereon being subordinate and junior to this plaintiff's lien thereon'; the stipulation of facts, the briefs and arguments of counsel and the cause was submitted to the court without the intervention of a jury, upon consideration whereof the court finds on the issues joined in favor of the plaintiff." The court further found that the Board of Commissioners of Trumbull county, on or about June 30, 1930, undertook proceedings to appropriate a part of the mortgaged property for the purpose of straightening a highway under the provisions of Section 6862et seq., General Code, and by way of compensation and damage did pay unto John A. Klenner, the owner of fee title, *Page 121 the sum of $2800, and that the board thereupon took possession of such strip of land for a road; "and the court further finds that the plaintiff herein, owner of a good and valid first mortgage lien was not made a party to the appropriation proceedings and had no notice thereof." The court further found that the Board of County Commissioners had no right under power of eminent domain to destroy the plaintiff's mortgage lien upon such premises without compensating the plaintiff therefor, and the cause was continued for further hearing to determine the amount of damage so suffered by the plaintiff. As appears by journal entry of the court under the same date, June 1, 1935, the cause came on further to be heard upon the application for a determination of a measure of compensation and damage which plaintiff shall be entitled to recover from the Board of County Commissioners of Trumbull county, Ohio, "the liability for which has heretofore been determined by this court"; and the matter was submitted to the court upon the pleadings, stipulations, evidence, exhibits and arguments of counsel, and without the intervention of a jury, "trial by jury being by the parties expressly waived," the court further found that Union Joint Stock Land Bank, "being the owner and holder of a real estate mortgage lien on the premises involved in this proceeding, having filed its mortgage deed of record in the office of the Recorder of Trumbull county, Ohio, was entitled to receive from the Board of County Commissioners of Trumbull county notice of the intention of said board to pay compensation and damages to John A. Klenner, the owner of fee title; that by reason of failure to give such notice to plaintiff, or to give other suitable recognition to the plaintiff's mortgage interest in said premises, the defendant, John A. Klenner, was permitted to collect the entire amount of compensation and damage and divert a substantial portion thereof to his own uses and purposes instead of applying the *Page 122 entire amount of $2800 in the reconditioning of the building structures which were moved to make way for the replacement of State Highway Section 330-D. The court further finds that owing to the failure and neglect of the Board of County Commissioners to see to a proper application of said compensation and damage awards, the residence structure upon said premises was left in an incomplete, damaged and depreciated condition following removal, and that the plaintiff's said mortgage security was thereby impaired." The court thereupon found that "the amount of damage suffered by plaintiff, Union Joint Stock Land Bank of Detroit, by reason of the fault and neglect of the Board of County Commissioners, is $100," and judgment was rendered against the commissioners, and in favor of the bank, in the amount of $100, together with costs. This cause comes into this court on error. Upon oral argument in this court we are asked to determine the following propositions of law: 1. Is a mortgagee of premises entitled to notice, under the provisions of Section 6870, General Code, in a proceeding wherein the County Commissioners have changed the right of way of a certain highway running through the mortgaged premises, and where a portion of the mortgaged premises has been used for such additional right of way, and where there has been no vacation of the old roadway? 2. Is the finding of the trial court, wherein $100 damage was awarded to Union Joint Stock Land Bank against the Board of Commissioners of Trumbull county, a proper finding under the law? 3. We are asked to determine the proper procedure in a situation wherein the County Commissioners have instituted proceedings under Section 6870 et seq., General Code, to appropriate land for road purposes where such land is encumbered by a duly recorded mortgage lien. *Page 123 Taking up these propositions in the order above set forth we find that, by Section 6860, General Code, the County Commissioners have power to locate, establish, alter, widen, straighten, vacate, or change the direction of roads in the county. Sections 6861, 6862, 6864, 6865, 6866, 6867, 6868, and 6869 provide the preliminary steps to be taken by the County Commissioners in determining whether or not to proceed with an improvement of the character mentioned in Section 6860, General Code. Section 6870 provides as follows: "If the commissioners at their final hearing on said improvement order the same established, they shall fix a date for hearing claims for compensation and damages, and they shall forthwith cause notice in writing of the time and place of such hearing to be given to the owner or owners through or upon whose lands said improvement is to be established or located. Such notice shall be served * * *." It will be noted that this section requires notice to be given only to "the owner or owners through or upon whose lands said improvement is to be established or located." Is a mortgagee, holding a valid and duly recorded mortgage lien upon the premises through or upon which the improvement is to be established or located, an "owner," in contemplation of this statute, upon whom notice must be served? The Common Pleas Court held that such mortgagee was an "owner" upon whom notice should have been served by the County Commissioners. It is admitted that no such notice was given or had by Union Joint Stock Land Bank. We find and hold that Section 6870, General Code, does not require notice to the mortgagee in this case. We quote from Kerr v. Lydecker, Admr., 51 Ohio St. 240, at page 248, 37 N.E. 267, 23 L.R.A., 842; "A mortgage of real estate is regarded, in equity, as a mere security for the performance of its condition *Page 124 of defeasance, and where that condition is the payment of a debt, the security is regarded as an incident of the debt. Swartz v.Leist, 13 Ohio St. 419. "The mortgage being, in equity, regarded as a mere security for the debt, the legal title to the mortgaged premises remains in the mortgagor, as against all the world, except the mortgagee, and also as against him until condition broken, but after condition broken the legal title as between mortgagor and mortgagee is vested in the mortgagee. Allen v. Everly, 24 Ohio St. 97; Ely v. McGuire, 2 Ohio, 223; Hibbs v. Insurance Co.,40 Ohio St. 543, 559; Martin v. Alter, 42 Ohio St. 94." The condition of the mortgage held by Union Joint Stock Land Bank had been broken and, as between the mortgagor and mortgagee, the legal title thereby became vested in the mortgagee, but as to all the world, except the mortgagee, the legal title to the mortgaged premises remained in the mortgagor, who was the "owner" upon whom notice was required to be served, under the provisions of Section 6870, General Code. 2. Is the finding of the trial court, wherein $100 damage was awarded to Union Joint Stock Land Bank against the Board of Commissioners of Trumbull county, a proper finding under the law? In its finding the lower court bases its action upon fault and neglect of the commissioners to give notice to the mortgagee of the time fixed for filing claims for compensation and damages. As stated above, we find no such notice was required. What then was the right of the mortgagee under the circumstances in this case? "The holder of a recorded mortgage is not affected by a proceeding to appropriate the land mortgaged unless he is a party to the proceedings, and the proceedings are in due course of law." 27 Ohio Jurisprudence, 495, Section 259. "A mortgagee is entitled to receive the amount of the mortgage from the amount paid into court, at least *Page 125 where the condition of the mortgage was broken before the commencement of the appropriation proceeding." 15 Ohio Jurisprudence, 873, Section 178. We quote from the syllabus in City of Cincinnati v. Fogarty, 14 O.N.P. (N.S.), 599: "5. After the state by this power has acquired property, the money paid is a fund subject to all the rights of all the parties, just the same as if the state had never intervened. "6. Courts will not permit a law general in its nature to deprive one of any of his rights, legal, equitable, or statute, unless such general law expressly says so." In the opinion the court says: "When the state obtained, by its power of eminent domain, the real estate there was no change in the relations of the parties. * * * they are still mortgagor and mortgagee. "The state has taken the land for a public purpose, and the money paid is a fund to be dealt with here * * * just the same as if it were the real estate. "* * * The state can by no general law deprive any one either of his common law right, or his equitable right, or his existing statute right, unless it distinctly says so, and not always then. What Homberg could have accomplished by ejectment may now here be accomplished by setting up his lien against the fund, which is here in place of the real estate. Hence, Homberg is entitled to the fund to the extent of satisfying his lien." We think the court, in Cincinnati v. Fogarty, supra, has correctly stated the proposition of law applicable in the instant case. In the instant case the mortgaged premises, other than the part taken by the commissioners for the highway in question, were sold under the order of the Common Pleas Court, the purchaser paying therefor the sum of $3,000. It is not material that the premises *Page 126 were bid in by the mortgagee at the sale thereof made by the sheriff. The mortgagee had the election to bid the same in, or to let the premises remain unsold for want of bidder, and eventually have a new appraisement and sale thereunder. It is conceded in this case that the amount of the deficiency judgment rendered by the Common Pleas Court in favor of Union Joint Stock Land Bank was the correct amount due to the bank after applying the proceeds of the sale of the mortgaged premises, other than the strip appropriated by the commissioners for road purposes. Having hereinbefore found that the fund arising as compensation and damages for the land appropriated by the commissioners takes the place of the land itself, it is apparent that, out of the sum of $2800 determined by the County Commissioners as the value of the land taken and damages to the residue of the mortgaged premises, there should be paid to Union Joint Stock Land Bank sufficient to make up the deficiency as found by the Common Pleas Court, to wit, $435.60, with interest at 6 per cent thereon from September 26, 1933. We do not deem it proper to lay down a general rule applicable, in all cases, to situations wherein property has been taken for public use without notice to the holder of a valid mortgage lien thereon, and desire to make it plain that this proceeding is decided upon the facts and the law applicable thereto, as we conceive the law to be. We deem it pertinent to observe that when one takes security by way of mortgage as security for a debt, the mortgagee takes the same with knowledge of the right of the governmental authorities to appropriate the property to public use. We find and hold that the Common Pleas Court erred in fixing the damages due from the Commissioners of Trumbull county to Union Joint Stock Land Bank at the sum of $100, and in finding that notice was required to be given to the mortgagee, Union Joint *Page 127 Stock Land Bank, of the proceedings to appropriate a part of the premises covered by its mortgage. We find and hold that Union Joint Stock Land Bank of Detroit has a valid and subsisting first lien upon the fund arising from the appropriation, by the Commissioners of Trumbull county, for road purposes, of a part of the premises described in the mortgage of the Union Joint Stock Land Bank, to the extent of $435.60, with interest from September 26, 1933, and coming now to render the judgment which should have been rendered by the Common Pleas Court, the judgment is modified in amount so that such judgment be in favor of the Union Joint Stock Land Bank of Detroit and against the Board of County Commissioners of Trumbull county in the sum of $435.60, with interest at the rate of 6 per cent from September 26, 1933, and this cause is remanded to said Common Pleas Court to carry into effect the said judgment as modified herein. Judgment modified and cause remanded. ROBERTS, J., and SHERICK, J., of the Fifth Appellate District, sitting by designation in the Seventh Appellate District, concur. *Page 128

2016-07-06 06:42:21.660528+00

Guernsey

This is an action in habeas corpus filed in this court by the state of Ohio on relation of Benjamin L. Waits, as relator, against Dr. R.E. Bushong, superintendent of Lima State Hospital, as respondent. In his petition Benjamin L. Waits alleges that he has been confined in Lima State Hospital since February 14, 1926, and that such confinement is by order of the Probate Court of Franklin county, Ohio. He further alleges that that court was without authority or jurisdiction to so order his confinement. He further alleges that he is sane and is being unlawfully restrained of his liberty by Dr. R.E. Bushong, superintendent of the hospital. In his return of the writ, Dr. R.E. Bushong, superintendent of Lima State Hospital for the Insane, states that he has Benjamin L. Waits in his custody and that he has had custody of Benjamin L. Waits since February 24, 1926, by virtue of a certain mittimus issued by one Homer Z. Bostwick, judge of the Probate Court of Franklin county, state of Ohio, on a plea of guilty of shooting with intent to kill one Caroline Waits, and attaches a copy of the mittimus. The mittimus referred to is in the words and figures following to wit: "Probate Court, Franklin County, Ohio "No. 50,713. "In the Matter of Inquest of Lunacy Benjamin Waits. Application. "To the Superintendent of the Lima State Hospital, Greeting: "Whereas, all the proceedings necessary to entitle Benjamin Waits to be admitted into the Lima State *Page 321 Hospital, have been had according to law, as will appear by the certified copies of said proceedings hereto attached, application is hereby made for the admission of said Benjamin Waits into said hospital. "Witness my signature and the seal of said Probate Court, at Columbus, Ohio, this 19th day of February A.D. 1926." It further appears from the evidence introduced in the case that at the January Term, 1926, of the Court of Common Pleas of Franklin county, Ohio, an indictment was returned against Benjamin Waits charging that on or about the 10th day of September, 1925, within the county of Franklin aforesaid, with a certain pistol then and there loaded with gun powder and one leaden ball, which pistol, he, Benjamin Waits, in his right hand then and there had and held, one Mrs. Benjamin Waits did unlawfully, maliciously and purposely shoot, with intent then and there and thereby her, the said Mrs. Benjamin Waits, to kill. The evidence further shows that on February 19, 1926, subsequent to the return of the indictment, Caroline Waits (Mrs. Benjamin Waits) filed an affidavit in lunacy in the Probate Court of Franklin county, Ohio, against Benjamin Waits, and that subsequent to the filing of the affidavit of lunacy, an inquest was duly held in that court and upon such inquest the court found that Benjamin Waits was then insane, and that he had a legal settlement in Montgomery township, Franklin county, and that he is and was at the time his insanity occurred, a resident of the state of Ohio. It was further ordered by the court that W.D. Dueschle and R.C. Tarbell, the medical witnesses at the inquest, make out a certificate in the cause according to law and file the same in court; and it was further ordered that a copy of the certificate together with a copy of the findings of the court be submitted to the superintendent of the Lima State Hospital. Thereafter the medical certificate *Page 322 was duly made and filed in court as ordered. Following the filing thereof mittimus was issued as hereinbefore mentioned. Thereafter a warrant for the conveyance of Benjamin Waits to the Lima State Hospital was duly issued by the Judge of the Probate Court to the sheriff of Franklin county, Ohio, and Benjamin Waits was thereafter, pursuant to the warrant, conveyed to the hospital by the sheriff and duly received by the then superintendent thereof, and has since been in the custody of the successive superintendents of the hospital and is now in the custody of Dr. R.E. Bushong, as superintendent of the hospital, pursuant to said proceedings and commitment. On submission of this cause it was stipulated by the parties hereto that, although the return of the writ states that the mittimus was issued on a plea of guilty of shooting with intent to kill one Caroline Waits, no plea of guilty was made by Benjamin Waits to such charge. It was further stipulated that the indictment hereinbefore mentioned is still pending against Benjamin Waits in the Court of Common Pleas of Franklin county Ohio, and that, without any action whatever by the Court of Common Pleas of Franklin county on that indictment, Benjamin Waits was adjudged insane by the Probate Court of Franklin county on inquest commenced by the filing of the affidavit of lunacy above mentioned, and committed to the Lima State Hospital as above set forth. It was further stipulated that Benjamin Waits at the time of his commitment to the hospital did not come within any of the classes of persons prescribed in Section 1985 of the General Code, hereinafter set forth, subject to commitment to the hospital except as he might be within class 4 therein mentioned consisting of persons indicted but found to be insane. The cause was submitted to this court upon the ground that Benjamin Waits is being unlawfully restrained of his liberty by reason of the fact that his *Page 323 commitment to the hospital by the order of the Probate Court of Franklin county was without authority in law and the court was without jurisdiction to order his commitment and confinement. The other ground alleged in the petition for the writ, that Benjamin Waits is sane, was not submitted to or considered and is not decided by this court. In order to determine whether the commitment and detention is with or without authority in law it is necessary to consider the statutes of the state of Ohio relating to commitments to Lima State Hospital, in effect at the time the commitment was made in February, 1926. Lima State Hospital was created by an act of the Legislature passed April 2, 1906, appearing in 98 Ohio Laws, page 236 etseq., entitled An Act to provide for the erection, organization and management of the Lima State Hospital for Insane. Section 2 of the act remains substantially in its original form as Section 1985 of the General Code, which provides: "The Lima State Hospital shall be used for the custody, care and special treatment of insane persons of the following classes: "1. Persons who become insane while in the state reformatory or the penitentiary. "2. Dangerous insane persons in other state hospitals. "3. Persons accused of crime, but not indicted because of insanity. "4. Persons indicted, but found to be insane. "5. Persons acquitted because of insanity. "6. Persons adjudged to be insane who were previously convicted of crime. "7. Such other insane persons as may be directed by law." Section 12 of the act, which was later designated as Section 13577 of the General Code, which section was *Page 324 repealed in 113 Ohio Laws at page 123, the subject matter now being covered by Section 13441-1 of the General Code, which became effective on the repeal of Section 13577 on July 22, 1929, read as follows: "When a grand jury upon investigation of a person accused of crime finds such person to be insane, said grand jury shall report such findings to the Court of Common Pleas, and the court shall proceed as provided in Sections 7240 and 7241 of the Revised Statutes of Ohio. If such person is then found to be insane he shall be committed to the Lima State Hospital until restored to reason." Section 13577, General Code, in effect at the time the commitment in the case at bar was made, read as follows: "If a grand jury upon investigation of a person accused of crime finds such person to be insane, it shall report such finding to the Court of Common Pleas. Such court shall order a jury to be impaneled to try whether or not the accused is sane at the time of such impanelling, and such court and jury shall proceed in a like manner as provided by law when the question of the sanity of a person indicted for an offense is raised at any time before sentence. If such person is then found to be insane, he shall be committed to the Lima State Hospital until restored to reason. This section shall not be in force and effect until the Lima State Hospital is ready for the reception of inmates as certified to the courts by the governor and secretary of state." Sections 7240 and 7241 of the Revised Statutes of Ohio, referred to in Section 12 of the act of April 2, 1906, above mentioned, were, after the adoption of that act, incorporated in Sections 13608, 13609 and 13610 of the General Code. Sections 13608 and 13609 of the General Code, which incorporated the provisions of Section 7240, Revised *Page 325 Statutes, and Section 13610 of the General Code, which incorporated the provisions of Section 7241, Revised Statutes, were repealed, 112 Ohio Laws, at page 168 et seq., by an act passed April 11, 1927, and new sections of the General Code numbered 13608 and 13609 were enacted in their place, which were repealed by an act of the Legislature revising and codifying the code of criminal procedure of Ohio, passed April 1, 1929, 113 Ohio Laws, 123 et seq. The original Sections 13608, 13609 and 13610 of the General Code, incorporating the provisions of Sections 7240 and 7241, Revised Statutes, were therefore in effect at the time the commitment in question was made. Section 13608 then, in part, provided: "When the attorney of a person indicted for an offense suggests to the court in which such indictment is pending, and before sentence, that such person is not then sane and a certificate of a reputable physician to that effect is presented to the court, such court shall order a jury be impaneled to try whether or not the accused is sane at the time of such impaneling. * * * The jury shall be sworn to try the question whether the accused is or is not sane and a true verdict give according to the law and the evidence, and, on the trial, the accused shall hold the affirmative." Section 13609 then, in part, provided: "If three-fourths of the jurors provided for in the next preceding section, agree upon a verdict, their finding may be returned as the verdict of such jury." Section 13610, General Code, then, in part, provided: "If the jury find him to be not sane, that fact shall be certified by the clerk to the Probate Court, and the accused, until restored to reason, shall be dealt with by such court as upon inquest had." Section 13 of the act providing for the erection, organization and management of the Lima State Hospital, above mentioned, provided: *Page 326 "If any person under indictment appears to be insane, proceedings shall be had as provided for persons not indicted because of insanity. In case such person is found to be insane, he shall be committed to the Lima State Hospital until restored to reason, when the superintendent thereof shall proceed as provided in Section 7243 of the Revised Statutes of Ohio." This section of the act mentioned was later incorporated in the provisions of Section 13614 of the General Code, which read as follows: "If a person under indictment appears to be insane, proceedings shall be had as provided for persons not indicted because of insanity. If such person is found to be insane he shall be committed to the Lima State Hospital until restored to reason when the superintendent thereof shall notify the prosecuting attorney of the proper county who shall proceed, as provided by law, with the trial of such person under indictment." Section 13614 of the General Code, above quoted, remained in effect until repealed by the act to revise and codify the code of criminal procedure of Ohio, 113 Ohio Laws, 123 et seq., passed April 1, 1929, and was in effect when the commitment in the case at bar was made. Sections 13577, 13608 and 13614, General Code, as in effect at the time the commitment in the case at bar was made, were under consideration by the Supreme Court in the case of State, ex rel.Diehlman, v. Clark, Supt. of Lima State Hospital, 102 Ohio St. 404, 131 N.E. 734, the question under consideration in that case being: "Did the common pleas judge presiding at the trial of the prisoner on the charge of murder in the first degree, and later upon the inquest of insanity, have jurisdiction, upon the finding of the jury as to the then insanity of the prisoner, to commit the prisoner *Page 327 upon such verdict to the Lima State Hospital for the insane?" In that case it was held: "First. That Sections 13577 and 13614, General Code, are later expressions of the legislative will than Section 13608 et seq., and where they are in conflict, the later sections must control. "Second. That Section 13608 relates only to a motion upon the part of the attorneys for the defendant, and gives the prosecuting attorney for the state no right whatsoever to move for an inquest of insanity in the Court of Common Pleas, whereas the later Sections 13577 and 13614 give the prosecuting attorney of the county the right to so move. "Third. That the only parts of Section 13608 et seq. adopted by Sections 13577 and 13614 are the parts that relate to the procedure to determine the sanity or insanity of the accused. Said parts in no wise control Sections 13577 and 13614 in the order to commit the person so found to be insane. "Fourth. The order of commitment is a ministerial and mandatory order explicitly written into the statute. The accused could in no wise be prejudiced by an order committing the prisoner made by the Court of Common Pleas, which would be equally mandatory upon the Probate Court were the latter given the custodianship of the prisoner for the mere purpose of commitment. "Fifth. That the fair and reasonable intendment of the General Assembly of Ohio under the later, more specific and particular statutes dealing with persons accused of crime in the Court of Common Pleas was to give to that court full jurisdiction to fully hear and determine the questions, and to make all final orders necessary upon the determination of such questions, as provided by said statutes." Examining the statutes above mentioned in the light of this decision, it is obvious that at the time the inquest *Page 328 on the sanity of the relator was had by the Probate Court of Franklin county and commitment to the Lima State Hospital made, Section 2 of the act to provide for the erection, organization and management of the Lima State Hospital, which is now, without material change, known as Section 1985 of the General Code, provided the classes of persons subject to confinement in such hospital, while Section 13614, General Code, provided for the commitment of a person under indictment who is found to be insane, to said hospital, and Section 13577, General Code, provided the method for determining the sanity or insanity of the person under indictment, such question being triable under the provisions of Section 13577, General Code, by a jury impaneled for that purpose by the Court of Common Pleas in which the indictment was pending; and that the provisions of these sections were exclusive as to the inquest on the sanity of a person under indictment where, upon a finding and adjudication of insanity, such person was subject to commitment to the Lima State Hospital. In other words, at the time the relator was committed to the Lima State Hospital such commitment to such hospital of a person under indictment and not coming within the other classes of cases subject to confinement in such hospital could be legally made only by the Court of Common Pleas in which such indictment was pending, after trial and verdict of a jury in such court that such person was insane. In the case of State, ex rel. Davey, Governor, v. Owen, Judge,133 Ohio St. 96, 12 N.E.2d 144, in which the provisions of Section 13441-1 of the General Code, a statute bearing upon the same subject matter and analogous to repealed Section 13608, General Code, was under consideration by the court, it is stated in the opinion, that: "While the content of some statutes has been changed, it is still the law of this state that the mental *Page 329 capacity of one under indictment must be determined under the provisions of Section 13441-1, General Code, and not by the probate judge." Whether the Probate Court of Franklin county had jurisdiction upon the affidavit, inquest and adjudication of lunacy, to commit the relator to a hospital other than the Lima State Hospital is not in question in this case and is not decided. For the reasons mentioned, we hold that the Probate Court of Franklin county, at the time it committed relator to the Lima State Hospital, was without any jurisdiction whatever to make such commitment to such hospital, and that the relator is unlawfully restrained of his liberty by the superintendent of that hospital under the commitment, and it is therefore ordered that the relator be delivered by the superintendent of the hospital into the custody of the sheriff of Franklin county, Ohio, to be proceeded against according to law. Writ allowed. CROW and KLINGER, JJ., concur.

2016-07-06 06:42:21.959728+00

Tyack

Ten-year-old Jasper Moffitt was with his parents near the family's store on the east side of Columbus when shots rang out. A bullet struck Jasper in the head and he died from the wound. The ensuing police investigation indicated that Allen Brian Mullins had fired the fatal shot while shooting at third parties in a white Cadillac over a city block away. Mullins was indicted on a charge of aggravated murder with a gun specification. Ultimately, a jury trial was conducted and Mullins was convicted of murder with a gun specification. Accordingly, he was sentenced to a term of imprisonment of fifteen years to life for the murder conviction. He received an additional sentence of three years' actual incarceration to be served prior to the indefinite term because he was found to have used a firearm in committing the murder. Mullins ("appellant") has timely appealed, assigning a single error for our consideration: "The evidence does not support appellant's conviction for murder. Viewed in the manner most favorable to the prosecution, the evidence at best supports conviction of the lesser-included offense of involuntary manslaughter and leaves in doubt identification of the defendant as the perpetrator." *Page 635 Addressing the latter part of the assignment of error first, the testimony as to identity presented to the trial court clearly met the standard for sufficiency of evidence set forth in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. InJenks, the Supreme Court of Ohio held at paragraph two of the syllabus: "* * * 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. * * *" (Citation omitted.) Testimony at trial indicated that appellant was seen in possession of a silver nine millimeter pistol on the day Jasper died. Appellant was alleged to have said that he was going to kill "the Detroit dudes." Appellant supposedly saw a white Cadillac in the neighborhood, indicated that it contained the men from Detroit, and began firing at the white Cadillac. After the shooting, a woman was heard crying out down the street that her baby had been shot. Appellant then fled and later concealed himself from the police, even to the point of attempting to hide his identity when arrested. To the extent that the assignment of error alleges insufficient proof of identification as the perpetrator, the assignment of error is overruled. The first portion of the assignment of error alleges that the evidence was insufficient to establish a conviction for murder, as opposed to involuntary manslaughter. "Murder" is defined in R.C. 2903.02(A) as follows: "No person shall purposely cause the death of another." "Involuntary manslaughter" is defined in R.C. 2903.04(A) thus: "No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a felony." The least crime appellant could be found guilty of committing is involuntary manslaughter. He apparently at least was knowingly attempting to do physical harm with a deadly weapon to the persons in the white Cadillac. Thus, he was guilty of felonious assault, which is defined in R.C. 2903.11(A) as follows: "No person shall knowingly: "* * * "(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code." *Page 636 As a direct and proximate result of the felonious assault, Jasper Moffitt was struck and killed by a stray bullet — hence, the observation above that appellant was at least guilty of involuntary manslaughter, an aggravated felony of the first degree. The more difficult question is whether appellant is guilty of purposely causing the death of Jasper Moffitt, thereby making him guilty of the greater offense of murder. No reason exists to believe that appellant wanted to kill a ten-year-old child, as opposed to the "Detroit dudes" in the white Cadillac who he apparently believed were gunning for him. However, appellant may still be guilty of murder if the doctrine of transferred intent is applicable. The doctrine of transferred intent indicates that where an individual is attempting to harm one person and as a result accidentally harms another, the intent to harm the first person is transferred to the second person and the individual attempting harm is held criminally liable as if he both intended to harm and did harm the same person. The doctrine has been applied for many years in Ohio but has apparently been removed by the legislature from application in aggravated murder cases. In revising R.C. 2903.01(D), the legislature mandated: "No person shall be convicted of aggravated murder unless he is specifically found to have intended to cause the death of another. * * * [T]he jury * * * is to consider all evidence introduced by the prosecution to indicate the person's intent and by the person to indicate his lack of intent in determining whether the person specifically intended to cause the death of the person killed * * *." The legislature did not remove the doctrine of transferred intent from application in determining the absence or presence of purpose to kill in murder, as opposed to aggravated murder, convictions. The limitation of the legislative reference to aggravated murder implies to a point that the legislature intended for the doctrine of transferred intent to have applicability in situations involving lesser crimes such as murder. The applicable case law does not indicate that transferred intent applies only to victims whose presence is known to the perpetrator. In fact, the case law implies that the proximity of the victim and the knowledge of the perpetrator about the ultimate victim are immaterial. Thus, in Wareham v. State (1874), 25 Ohio St. 601, 607, the Supreme Court of Ohio stated: "* * * The intent to kill and the malice followed the blow, and if another was killed the crime is complete * * *. The purpose and malice with which the blow was struck is not changed in any degree by the circumstance that it did not take effect upon the person at whom it was aimed. The purpose and *Page 637 malice remain, and if the person struck is killed, the crime is as complete as though the person against whom the blow was directed had been killed, the lives of all persons being equally sacred in the eye of the law, and equally protected by its provisions. A blow given with deliberate and premeditated malice and with the intent and purpose to kill another, if it accomplish its purpose, can not be said to have been given without malice and unintentionally, although it did not take effect upon the person against whom it was directed * * *." Recent case law has even allowed transferred intent to be the basis for transferring prior calculation and design from one victim or intended victim to the victim who actually dies, even though the latter victim's death was not originally contemplated. See State v. Solomon (1981), 66 Ohio St.2d 214, 20 O.O.3d 213, 421 N.E.2d 139, and State v. Sowell (1988), 39 Ohio St.3d 322, 530 N.E.2d 1294. Given the action of the legislature and the existing case law regarding transferred intent, we are bound to hold that transferred intent is the appropriate legal theory to apply in assessing the sufficiency of the evidence. Appellant's apparent intention to kill one or more of the occupants of the white Cadillac, combined with the actual death of Jasper Moffitt resulting from the gunshots fired in an attempt to kill the occupants of the car, presents sufficient proof of the elements of a charge of murder. The first part of the assignment of error is also overruled. The assignment of error having been overruled in toto, the judgment and sentence of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. JOHN C. YOUNG and PEGGY BRYANT, JJ., concur. *Page 638

2016-07-06 06:42:22.141314+00

Brogan

{¶ 1} This case is before us on the appeal of Kenneth Gevedon from a trial court decision finding him in contempt of court for failing to appropriately respond to discovery requests after being ordered to do so by the court. The court also awarded attorney fees of $4,661.25 to Joel Gevedon, held that Kenneth was a vexatious litigator, and prohibited Kenneth from instituting any legal proceedings in a court of claims or in a common pleas court, municipal court, or county court in the state of Ohio without first obtaining leave of court to proceed. *Page 452 {¶ 2} In support of his appeal, Kenneth claims, in a single assignment of error, "The trial court abused its discretion when it found Defendant-Appellant to be in contempt of court and to be a vexatious litigator." After reviewing the record, we hold that the trial court did err in finding Kenneth to be a vexatious litigator, because Joel Gevedon never made a claim for relief under R.C. 2323.52 (the vexatious-litigator statute). Accordingly, the judgment of the trial court will be affirmed in part, reversed in part, and remanded for further proceedings. I {¶ 3} This action began as a petition for a domestic violence civil protection order filed by Joel Gevedon against his brother, Kenneth. In the petition, Joel alleged that his brother had made false police reports against him, had paid people to lie on police reports, and had talked to others about having Joel killed. An ex parte civil protection order was granted on March 6, 2002, and a hearing was scheduled for March 15, 2002. That hearing was apparently held, but no transcript is in the file. {¶ 4} More than a year later, on August 13, 2003, a consent agreement and domestic violence civil protection order was filed, restraining the brothers and their families from threatening and harassing each other and prohibiting them from being within 500 yards of each other. The mutual consent order had apparently been agreed to by the parties at the March 2002 hearing, but was never filed. When the consent order was finally filed in August 2003, it was also not made retroactive. As a result, another entry was filed on October 15, 2003, making the consent decree retroactively effective, per Civ.R. 60(A), as of March 15, 2002. {¶ 5} In the October 15, 2003 entry, the magistrate additionally overruled a motion for contempt that Kenneth had filed against Joel on August 14, 2003. The magistrate found that Joel was not in contempt of the consent agreement because the evidence indicated that the parties were coincidentally at the same place at the same time. The magistrate also found that Joel Gevedon was not in contempt of the consent agreement by driving past Kenneth's businesses, because Kenneth was not there at the time and the businesses were on main thoroughfares where Joel would be expected to travel. {¶ 6} Kenneth filed objections to the magistrate's decision, but failed to provide the trial court with a transcript of the hearing that the magistrate had held. Kenneth also failed to meaningfully supplement his objections. Consequently, on September 8, 2004, the trial court overruled the objections to the magistrate's decision because of Kenneth's failure to follow through with filing objections and a transcript. No appeal was taken from this decision. *Page 453 {¶ 7} In the meantime, Joel had filed a motion for statutory relief and attorney fees against Kenneth, based on R.C. 2323.51. In the motion, Joel claimed that Kenneth's August 14, 2003 motion for contempt was a continuation of conduct that had been condemned in a prior civil action between the parties. The prior action involved a business relationship between the brothers that had soured. A magistrate in the prior case found, among other things, that Kenneth's conduct toward Joel was "characterized by ill will and a spirit of revenge." The magistrate in that case also commented about a breach-of-fiduciary claim that Joel had made against Kenneth. In criticizing Kenneth's conduct, the magistrate stated that it was "difficult to imagine a scenario in which a partner exercised less integrity and good faith with a partner." See Gevedon v. Gevedon (July 8, 2002), Greene C.P. No. 00-CV-0294. {¶ 8} Joel's statutory claim under R.C. 2323.51 was originally set for hearing on November 11, 2003, but the matter was not actually resolved until June 2005. In the interim, the court granted numerous continuances and also dealt with a motion for change of venue and a petition for disqualification that Kenneth had filed. In both filings, Kenneth claimed bias on the part of Greene County Common Pleas Court judges and magistrates, and by the Greene County Prosecutor's Office, which had allegedly failed to proceed with criminal complaints that Kenneth had made against various individuals. The trial court overruled the motion for change of venue, and Kenneth did not appeal. The Ohio Supreme Court also denied Kenneth's affidavit to disqualify three Greene County Common Pleas judges and a magistrate from hearing any further proceedings involving Kenneth. The court refused to consider Kenneth's charges against two judges, because he did not have any cases pending before those judges. However, the Ohio Supreme Court rejected Kenneth's claims against the trial judge who presided over the present case, noting that "[d]isagreement or dissatisfaction with a judge's rulings of law is not grounds for disqualification." {¶ 9} The trial court was also busy resolving discovery disputes during the interval between the filing of Joel's R.C.2323.51 motion and the eventual decision on the motion. On July 21, 2004, Kenneth filed a motion to compel Joel to answer interrogatories. The court extended the time for answering until September 1, 2004, because Joel's counsel had sustained serious injury in an accident in July 2004. Joel's attorney then filed a motion on September 2, 2004, seeking to modify the court's discovery order, because the attorney could not locate the discovery requests and had not been able to reach Kenneth's attorney. The court granted this request and extended the deadline for about a month. {¶ 10} Before the new deadline had passed, Joel filed a motion for a protective order, claiming that the requested discovery was oppressive and was intended for purposes of annoyance. In the motion, Joel's attorney pointed out that many *Page 454 discovery requests were directed toward the prior case that had been litigated and toward individuals who were nonparties, including Joel's attorney himself. For example, Kenneth asked Joel's attorney to list all cases that he had litigated in Greene County Domestic Relations Court from 1995 to present. Joel's attorney was also asked to attach copies of all decisions and pertinent documentation for those cases. These matters were clearly irrelevant to the litigation at hand. {¶ 11} Kenneth did not file a response to Joel's motion for a protective order. Subsequently, on October 12, 2004, the magistrate filed a decision finding that most of Kenneth's discovery requests and requests for admissions were objectionable. The magistrate allowed a few interrogatories and requests for admissions. In the decision, the magistrate stated: {¶ 12} "All discovery requests in this case that are found to be admissible shall be answered specifically in a brief narrative form. Any evidence provided shall be strictly the evidence itself with no additional opinions or writings of either party on that evidence." {¶ 13} The trial court immediately adopted this decision, and no objections were filed thereafter. Subsequently, on December 12, 2004, Kenneth filed another motion to compel and in the alternative, for contempt, because Joel had not yet answered the interrogatories. The court ordered that the answers be submitted within 14 days, and they apparently were, for Kenneth did not file any further motions relating to discovery. {¶ 14} On March 9, 2005, the court set the matter for a final motion hearing on May 25 and 26, 2006. However, on May 19, 2005, Joel filed a motion to compel discovery and a petition for sanctions. In the motion, Joel claimed that Kenneth had failed to comply with the court order of October 12, 2004, which required the parties to answer discovery requests in brief narrative form. Joel indicated that he had sent Kenneth interrogatories that either were not answered or were answered incompletely or evasively. According to Joel, Kenneth had refused to provide any further response to these discovery requests. As a result, Joel asked the court to compel discovery and issue appropriate sanctions. Joel claimed that sanctions alone were not enough, due to the pending trial date. Instead, Joel asked the court to award judgment in his favor on the pending claim. Again, Kenneth failed to file a response to this motion. {¶ 15} The parties apparently then appeared before the court, because a magistrate's decision filed on June 7, 2005, refers to a stipulation of the parties about the reasonableness of fees charged by Joel's attorney. Since no written stipulation is in the record, the stipulation must have taken place at a hearing. However, Kenneth did not file any transcripts of a hearing, nor has he attempted to provide a substitute record under App.R. 9(C) or (D). *Page 455 {¶ 16} In the June 7, 2005 decision, the magistrate found Kenneth in contempt for failing to go back through interrogatories and provide answers in compliance with the October 12, 2004 court order. The magistrate further found that Kenneth's actions were willful and intentional and had delayed the case. Therefore, the magistrate recommended that default judgment be rendered against Kenneth. The magistrate also discussed Kenneth's actions in the present case as well as the prior case, which was characterized as having established a pattern for vexatious litigation that was carried forward. Among other things, the magistrate focused on the unfounded allegations that had been made against judges, opposing counsel, and the Greene County Sheriff's Department, and the lack of merit in various motions that Kenneth had filed. As we mentioned, Kenneth was ordered to pay attorney fees to Joel and was barred from instituting further legal actions without prior court approval. {¶ 17} The trial court immediately adopted the magistrate's decision as the order of the court. On June 28, 2005, Kenneth filed a motion for an extension of time to file his objections to the magistrate's decision. In the motion, Kenneth claimed generally that the magistrate's ruling was against the sufficient weight of the evidence and contradicted the decision of other courts. These are the same generic, nonspecific objections that Kenneth had previously made to the decision rejecting his contempt motion. {¶ 18} On June 30, 2005, the trial court denied the motion for extension, finding that the time for filing objections had already passed by the time the motion was filed. The court also stressed that Kenneth had a history of filing objections and requesting additional time without following through, which resulted in unnecessary delays. The court found no just reason for delay, and this appeal then followed. {¶ 19} As we mentioned, Kenneth claims that the trial court abused its discretion by finding him in contempt and in holding that he is a vexatious litigator. However, Kenneth has waived error by failing to timely object to the magistrate's decision.State ex rel. Booher v. Honda of Am. Mfg., Inc. (2000),88 Ohio St.3d 52, 53-54, 2000-Ohio-269, 723 N.E.2d 571. In this situation, our own district has previously said: {¶ 20} "the bar that Civ.R. 53 imposes for error that has not been brought to the trial court's attention by way of timely objections is not jurisdictional: it applies to the party who takes the appeal, not to the court. Nevertheless, absent civil plain error, the appellate court should affirm a trial court's final judgment or order adopting a magistrate's decision when an alleged error in the judgment or order is predicated on a finding of fact or conclusion of law in the magistrate's decision. * * *Civil plain error is error which, though not objected to, seriously affects the basic fairness, integrity, or public reputation of the judicial process, *Page 456 thereby challenging the legitimacy of the judicial process itself." (Citations omitted and emphasis sic.) Hulcher v.Hulcher (May 5, 2000), Montgomery App. No. 17956,2000 WL 543315, *2. {¶ 21} Due to Kenneth's failure to file timely objections, we may consider only plain error in the trial court's decision. Our review is further constrained by Kenneth's failure to file any transcripts and by his failure to provide either a statement of the evidence under App.R. 9(C) or an agreed statement of the case under App.R. 9(D). These failures prevent us from effectively reviewing the assignment of error for plain error regarding the contempt issue and award of attorney fees. See,e.g., Flatinger v. Flatinger, Franklin App. No. 03AP-663,2004-Ohio-130, 2004 WL 63622, at ¶ 7 (appellant's omission of transcript leaves reviewing court with no option but to presume validity of lower court proceeding); and Poole v. Becker MotorSales, Inc. (Feb. 2, 2001), Montgomery App. No. 18550,2001 WL 88276, *2 (court's ability to review record for plain error is hampered by appellant's failure to order transcript of attorney-fee hearing or to provide alternate means of reviewing evidence). Some matters are apparent simply from the pleadings, but hearing transcripts or a statement of evidence would have shed light on the lower court's perception of Kenneth's conduct. Because such evidence is lacking, we must presume the validity of the judgment as to the contempt finding and the award of attorney fees. {¶ 22} There is one area where we can evaluate plain error without resort to evidentiary matters. As we mentioned, the trial court held that Kenneth was a vexatious litigator and prohibited him, under R.C. 2323.52, from filing in various Ohio courts without prior approval. However, the lower court case was not brought as an action for vexatious litigation. By statute, a vexatious litigator is defend as follows: {¶ 23} "[A]ny person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions, whether in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court, whether the person or another person instituted the civil action or actions, and whether the vexatious conduct was against the same party or against different parties in the civil action or actions." R.C. 2323.52(A)(3). {¶ 24} The remedy for vexatious litigation is provided in R.C. 2323.52(B), which states: {¶ 25} "A person, the office of the attorney general, or a prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a municipal corporation who has defended against habitual and persistent vexatious conduct in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court may commence a civil action in a court of common pleas *Page 457 with jurisdiction over the person who allegedly engaged in the habitual and persistent vexatious conduct to have that person declared a vexatious litigator. The person, office of the attorney general, prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a municipal corporation may commence this civil action while the civil action or actions in which the habitual and persistent vexatious conduct occurred are still pending or within one year after the termination of the civil action or actions in which the habitual and persistent vexatious conduct occurred." {¶ 26} In the present case, Joel Gevedon did not commence a civil action against Kenneth Gevedon under R.C. 2323.52(B). Instead, Joel filed a motion in a pending domestic violence case, specifically asking for statutory relief under R.C. 2323.51, which governs "frivolous conduct." R.C. 2323.51 is distinct from the vexatious-litigator statute and provides: {¶ 27} "[A]t any time not more than thirty days after the entry of final judgment in a civil action or appeal, any party adversely affected by frivolous conduct may file a motion for an award of court costs, reasonable attorney's fees, and other reasonable expenses incurred in connection with the civil action or appeal." R.C. 2323.51(B)(1). {¶ 28} R.C. 2323.51 and R.C. 2323.52 offer "complementary" remedies, but the remedies are not the same. As the Tenth District Court of Appeals has noted, the two statutes share the same definition of reprehensible conduct. However, R.C. 2323.51 allows attorney fees for past frivolous conduct in a civil action, while R.C. 2323.52 provides a "protective remedy in the form of a restriction on future frivolous filings." K.Z. Roo v.Sain, Franklin App. No. 04AP-881, 2005-Ohio-2436,2005 WL 1177940, at ¶ 15. {¶ 29} The procedures outlined in the statutes are different, also. Relief under R.C. 2323.51 is obtained by filing a motion in a pending case, while the remedy in R.C. 2323.52 requires commencement of a civil action against the alleged vexatious litigator. {¶ 30} Notably, Joel never asked the court for relief under R.C. 2323.52. Instead, his motion was specifically based on R.C.2323.51. Accordingly, the trial court decision, insofar as it declares Kenneth a vexatious litigator under R.C. 2323.52, is plain error that "seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the judicial process itself."Hulcher, Montgomery App. No. 17956, 2000 WL 543315, at *2. {¶ 31} We do note that in filing for a protective order, Joel's attorney mentioned the subject of vexatious litigation. However, he did not refer to R.C. 2323.52. Even if he had mentioned this statute, the issue would not have been *Page 458 adequately raised in a motion for protective order. As we noted, the requirements in R.C. 2323.52 are quite particular, and relief must be requested in the manner outlined in the statute. InState ex rel. Naples v. Vance, Mahoning App. No. 02-CA-181, 2003-Ohio-4738, 2003 WL 22071486, the Seventh District Court of Appeals held that an individual defending against a mandamus action did not properly raise the vexatious-litigator statute. Specifically, the respondent included the matter as an affirmative defense and did not commence a civil action. Id. at ¶ 17. Likewise, in Howard v. Indus. Comm., Lucas App. No. L-04-1037, 2004-Ohio-5672, 2004 WL 2384444, the Sixth District Court of Appeals rejected an attempt to have an appellant declared a vexatious litigator. The Sixth District noted that the motion was made at oral argument, but the remedy under R.C.2323.52 is to commence a civil action. Id. at ¶ 6. {¶ 32} Our decision does not mean that Kenneth could not be classified as a vexatious litigator. That issue is not before us, and we express no opinion on the matter. We simply hold that the trial court committed plain error in relying on R.C. 2323.52, as there was never a request for relief under that statute. {¶ 33} Based on the preceding discussion, the single assignment of error is sustained in part and is overruled in part. Accordingly, the judgment of the trial court is reversed insofar as it relates to Kenneth's status as a vexatious litigator, and this matter is remanded for further proceedings. In all other respects, the judgment of the trial court is affirmed. Judgment affirmed in part and reversed in part, and cause remanded. GRADY, P.J., and DONOVAN, J., concur.

2016-07-06 06:42:22.289734+00

Gorman

With respect to the majority's resolution of Marx's fifth assignment of error challenging the denial of his request for a hearing on the amount of attorney fees awarded, I dissent. This issue was not waived as the majority holds. In Digital Analog Corp. v. North Sup. Co.,53 the supreme court in unequivocal terms adopted the procedure for assessment and determination of attorney fees when a jury awards punitive damages in a tort action. "[T]he amount of attorney *Page 105 fees to be awarded in a tort action, after a jury determination that a defendant is liable for such fees, will lie in the sound discretion of the trial judge, based upon evidence that the defendant has been given the opportunity to present either at a post trial hearing or at trial."54 In Zoppo v. Homestead Ins.Co.,55 the supreme court expressly reaffirmed the procedure for assessment of attorney fees announced in Digital despite its holding that the legislative scheme for determination of punitive damages by the judge under R.C. 2315.21(C)(2) violates the right to trial by jury. At the second stage of the bifurcated proceeding, in compliance with Digital, the trial court was to determine the amount of Meyers's attorney fees. At this second stage, it was incumbent upon the trial court to provide Marx an opportunity to challenge the affidavits which Meyers offered in support of her post-trial motion requesting attorney fees in the sum of $21,458.75 and $1,345.10 in costs. Marx appropriately notified the trial court by a memorandum that he was challenging Meyers's entitlement to attorney fees and requested oral argument. In response, however, the trial court stated, "The Court finds that the request for an oral hearing is not necessary since the defendants have failed to raise any specific objection as to hours expended or hourly rate charged by the plaintiffs' counsel. The affidavits of the plaintiff remain unrebutted and therefore no hearing is necessary." By summarily preempting a hearing, the trial court deprived Marx of the opportunity to challenge the amount of attorney fees. Although the evidentiary hearing need not be conducted in open court, at the very least, under Digital the trial court must demonstrate in the record that it provided Marx some forum, if only by means of deposition or affidavit, to offer expert evidence on the issue of reasonableness. Here, the record is silent. For the trial court to proceed to assess attorney fees on a waiver theory ignores the mandate of Digital and the rule of fairness. I join the majority in overruling the other assignments of error. 53 (1992), 63 Ohio St.3d 657, 590 N.E.2d 737. 54 Id. at 664, 590 N.E.2d at 743. 55 (1994), 71 Ohio St.3d 552, 557, 644 N.E.2d 397, 401. *Page 106

2016-07-06 06:42:24.427357+00

OPINION *Page 2 {¶ 1} Plaintiff-appellant Lawrence Township, Stark County, Ohio, Board of Township Trustees, ("Lawrence Township") appeals from the entry of summary judgment in favor of defendants-appellees, City of Canal Fulton, Tammy Marthey, Clerk of Council for the City of Canal Fulton, the Stark County Board of County Commissioners and Canal Fulton Farms, LLC (collectively referred to as "Appellees"). {¶ 2} The Stark County Court of Common Pleas determined Lawrence Township lacked standing to file a complaint for declaratory and injunctive relief against Appellees in this annexation proceeding. The trial court also determined that the annexation petition approved by the Board of Commissioners was valid. {¶ 3} For the reasons that follow, we reverse and remand this matter for further proceedings. {¶ 4} It is well-established that "annexation is strictly a statutory process." In re Petition to Annex 320 Acres to S. Lebanon (1992),64 Ohio St.3d 585, 591, 597 N.E.2d 463. Consequently, the procedures for annexation and for challenging an annexation must be provided by the General Assembly. Id. at 591, 597 N.E.2d 463. {¶ 5} In 2001, the Ohio Legislature passed Senate Bill ("S.B") 5, which amended R.C. Chapter 709, Ohio's annexation law, to provide for special procedures to expedite the annexation process in which all property owners desire annexation. Prior to Senate Bill 5, all annexations in Ohio initiated by private property owners followed a single procedure requiring that a "majority of the owners" sign the annexation petition. {¶ 6} The three expedited procedures established by S.B. 5 are as follows: a type-1 annexation occurs when "all parties", including the township and the municipality *Page 3 agree to the annexation of the property (R.C. 709.022); a type-2 annexation applies when the property to be annexed to the municipality will remain within the township despite the annexation (R.C. 709.023); and a type-3 annexation applies when the property to be annexed has been certified as a "significant economic development project" (R.C. 709.024). See, State ex rel. Butler Twp. Bd. Of Trustees v. MontgomeryCty. Bd. Of Commrs., 112 Ohio St.3d 262, 2006-Ohio-6411,858 N.E.2d 1193, at ¶ 5. {¶ 7} S.B. 5 also changed the definition of "owner" or "owners" in R.C. 709.02(E) for purposes of establishing the number of owners who must sign an annexation petition. That statute provides, in relevant part: {¶ 8} "* * * `owner' or `owners' means any adult individual who is legally competent, the state or any political subdivision * * *, and any firm, trustee or private corporation seized of a freehold estate in land; except that easements and any railroad, utility, street, and highway rights-of-way held in fee, by easement, or by dedication and acceptance are not included within those meanings. * * * [T]he state or any political subdivision shall not be considered an owner and shall not be included in determining the number of owners needed to sign a petition * * *. An owner is determined as of the date the petition is filed with the board of county commissioners." {¶ 9} This definition of "owner" applies to all types of annexations. {¶ 10} In addition, S.B. 5 provided under each of the expedited annexations limited challenges to decisions by the board of county commissioners. R.C. 709.022(B) states: {¶ 11} "* * * [o]wners who sign a petition requesting that the special procedures in this section be followed expressly waive their right to appeal any action taken by the *Page 4 board of county commissioners under this section. There is no appeal from the board's decision under this section in law or equity." {¶ 12} R.C. 709.023(G) further provides: {¶ 13} "If a petition is granted under division (D) or (F) of this section, the clerk of the board of county commissioners shall proceed as provided in division (C)(1) of section 709.033 of the Revised Code, except that no recording or hearing exhibits would be involved. There is no appeal in law or equity from the board's entry of any resolution under this section, but any party may seek a writ of mandamus to compel the board of county commissioners to perform its duties under this section." STATEMENT OF FACTS AND CASE {¶ 14} The facts surrounding this case indicate that on June 22, 2007, Canal Fulton Farms, LLC ("CFF") filed a type-2 petition for annexation pursuant to R.C. 709.021 and 709.023. {¶ 15} The petition requested annexation to the City of Canal Fulton of 32.767 acres of land located within Lawrence Township. The only signatory on the petition was CFF as owners of 24.937 acres. {¶ 16} The agent for CFF, Eric Williams, stated in the annexation petition that R.J. Corman Railroad Company ("Corman") and Stark County Park District ("Park") were not statutorily defined owners required to sign the petition. The petition identifies Parcel #95011737 as "land now or formerly owned by" Corman in the legal description of the area to be annexed. A copy of the annexation plat is also included in the petition. The plat notes "tracks and occupation used to establish right of way" in reference to Corman's parcel. *Page 5 {¶ 17} On July 9, 2007, Lawrence Township passed Resolution 2007-210 which set forth objections to the petition.1 The objections were subsequently filed with the Commissioners pursuant to R.C. 709.023(D). After consideration of the objections, the Commissioners passed a resolution granting the petition pursuant to R.C. 709.023. {¶ 18} On October 2, 2007, Lawrence Township filed a complaint in the Stark County Court of Common Pleas seeking a declaratory judgment, injunctive relief and a writ of mandamus requesting that the annexation be invalidated and set aside. Lawrence Township submits that the petition is defective since it did not contain the signature of all the owners of the property as required by 709.21(A) and 709.023(2). {¶ 19} In the complaint, Lawrence Township alleged that Corman was identified in the petition as the fee simple owner of property within the territory to be annexed. Lawrence Township further alleged that fee owners of property used for "railroad purposes" are required to sign the annexation petition under R.C. 709.02(E). Attached to the complaint is the annexation petition filed by CFF. {¶ 20} The record reflects that service of the complaint was not perfected upon Corman. Consequently, Corman did not defend or otherwise appear in this action. {¶ 21} Almost immediately Lawrence Township filed a motion for summary judgment which was supported with a copy of the aforementioned annexation petition (Exhibit A) and the Township's objections to the annexation petition (Exhibit B). {¶ 22} In the motion, Lawrence Township reiterated its belief that on the face of the petition, Corman is a private title owner to a portion of the land included in the *Page 6 annexation and therefore Corman was required to sign the petition. Appellees filed cross-motions for summary judgment arguing Corman only holds fee title to a railroad right-of-way, therefore Corman should not be counted as an "owner" under R.C. 709.02(E). {¶ 23} The trial court granted summary judgment in favor of Appellees, finding "[i]n the present action the material facts are undisputed in that Corman held fee title to the property for a railroad right-of-way and did not sign the Petition. There has been no affidavit or deed indicating Corman held something other than fee title to the property for a railroad right-of-way. Further, Corman has not objected to the annexation". J.E., 12-31-07, at 3. The trial court concluded the word "owner" within R.C. 709.021 and 709.023 does not include Corman or the Park, and therefore CFF's petition was valid as it contained the signatures required by law. Id. at p. 5. Therefore, it found Lawrence Township was not entitled to mandamus relief. {¶ 24} Lastly, the trial court found Lawrence Township lacked standing to seek a declaratory judgment, injunctive relief or summary judgment on the issue of who is an owner according to Ohio's annexation statutes. {¶ 25} Lawrence Township filed an appeal and raises a single assignment of error: {¶ 26} "I. THE TRIAL COURT ERRED IN GRANTING THE APPELLEES' CROSS MOTIONS FOR SUMMARY JUDGMENT AND IN DENYING THE APPELLANT'S MOTION FOR SUMMARY JUDGMENT, AS A MATTER OF LAW, TO APPELLANT'S PREJUDICE." *Page 7 {¶ 27} Lawrence Township claims the trial court's decision to deny declaratory, judgment, injunctive relief and mandamus was contrary to law. {¶ 28} We will first address Lawrence Township's claim for writ of mandamus. {¶ 29} A writ of mandamus will issue if the party seeking the writ demonstrates that the respondent is under a clear duty to perform the requested act, that there is clear legal right to the requested relief, and that there is no plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d.28, 29,451 N.E.2d 225, citing State ex rel. Heller v. Miller (1980),61 Ohio St.2d 6, 399 N.E.2d 66, syllabus 1. {¶ 30} A writ of mandamus is an appropriate remedy should a board of county commissioners fail to perform its statutory duty in regards to a type-2 annexation petition. R.C. 709.023(G). {¶ 31} According to R.C. 709.023(D), "a township's ability to object * * * to the proposed annexation shall be based solely upon the petition's failure to meet the conditions specified in division (E) of this section." {¶ 32} Under Section (E)(1) through (7) of R.C. 709.023, a board of county commissioners is required to review the petition for annexation to determine if certain conditions are met. Relevant to this matter is the condition specified in (E)(2), which states: "[t]he persons who signed the petition are owners of the real estate located in the territory proposed for annexation and constitute all of the owners of real estate in that territory." {¶ 33} Therefore, in order to be entitled to a writ of mandamus, Lawrence Township is required to establish that Corman was an "owner" which is defined by *Page 8 R.C. 709.02(E) as "seized of a freehold estate in land". Appellees adamantly contend, and the trial court so found, that Corman only held "fee title to the property for a railroad right-of-way". Therefore Corman maybe excluded from the meaning of "owner" because R.C. 709.02(E) further provides: {¶ 34} "* * * easements and any railroad, utility, street or highway rights-of-way held in fee, by easement or by dedication and acceptance are not included * * *" within the meaning of owner." {¶ 35} In Butler, supra, the Ohio Supreme Court determined that landowners who own the property over which a roadway easement exists are "owners" as defined in R.C. 709.02(E) and therefore must be included in determining the number of owners needed to sign the annexation petition. Lawrence Township argues by analogy that fee owners of real property used for railroad purposes, such as Corman, are "owners" because Corman also owns the property underlying the railroad. {¶ 36} Although it is easier to conceptualize Appellant's challenge as being one seeking prohibition as opposed to mandamus given the board of commissioners' resolution approving annexation, it is conceivable to frame Appellant's mandamus complaint as one to compel the board of commissioners to reject the annexation petition because of the lack of signatures of the owners of the property to be annexed. Therefore, mandamus may lie. The crux of the issue becomes whether board of commissioners had a clear legal duty to approve [or reject] the petition. {¶ 37} We believe resolution of that issue depends upon a determination of whether Corman is fee simple owner of the land upon which its tracks sit or whether it merely possesses a right of way or easement in fee upon the land(s) of another within *Page 9 the territory to be annexed. Neither the trial court, nor the parties reference any record evidence which indisputably establishes Corman's interest. Although the annexation petition averred Corman was not a statutorily defined owner required to sign the petition, the petition identifies Parcel #95011737 as "land now or formally owned by" Corman in the legal description of the area to be annexed. {¶ 38} In the trial court's judgment entry, the trial court finds "the material facts are undisputed in that Corman held fee title to the property for a railroad right-of-way . . ." If so, we would agree with the trial court the annexation was properly approved. But Appellant does dispute, at least in its brief to this court, Corman's fee interest was limited to a right-of-way. {¶ 39} We have reviewed the parties' briefs in support of and in opposition to summary judgment filed in the trial court. Nowhere therein did we find any evidentiary material specifically addressing whether Corman owns the land under its tracks in fee simple or merely owns a fee interest in a right-of-way over the land. Resolution of this factual issue is crucial under the holding of the Ohio Supreme Court inButler. While attaching the annexation petition and resolutions as exhibits, the summary judgment briefs focused on legal arguments concerning the applicable statutes. Our review of the summary judgment submissions leaves the factual issue of the nature of Corman's interest in dispute. Accordingly, we believe the trial court erred in granting Appellees summary judgment at this stage of the proceedings. {¶ 40} We will next address Lawrence Township's request for declaratory and injunctive relief. We disagree with the trial court Appellant lacks standing to bring the instant declaratory judgment action. Whether the trial court has jurisdiction to hear it, *Page 10 and to order the request for injunctive relief, presents a different issue requiring a separate analysis. {¶ 41} R.C. 709.239(G) provides there is "no appeal in law or equity from the board's [of commissioners] entry of any resolution under this section, but any party may seek a write of mandamus to compel the board of county commissioners to perform its duties under this section". Although not captioned as such, Appellant's complaint for declaratory judgment and injunctive relief serves the same function and purpose as an appeal. Accordingly, we find the proper disposition of these claims in the trial court to be dismissal for lack of jurisdiction, not lack of standing. {¶ 42} The assignment of error is sustained. {¶ 43} For the foregoing reasons, the judgment of the Stark County Court of Common Pleas is reversed and remanded for further proceedings. Hoffman, P.J. and Edwards, J. concur; Delaney, J. dissents. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas is reversed and this matter is remanded for further proceedings. Costs assessed to Appellee. 1 We note that while Lawrence Township filed an objection stating the petition "fails to meet any of the requirements provided [in] Section 709.021 of the Revised Code", it did not set forth a specific objection that the petition lacked the required number of owner signatures. *Page 11

2016-07-06 06:42:24.43444+00

{¶ 44} I respectfully disagree from the majority opinion. {¶ 45} I would decline to interpret Butler as urged by Lawrence Township. I would find that an "owner" as defined in R.C. 709.02(E) excludes "any railroad, utility, street, and highwayrights-of-way held in fee, by easement, or by dedication and acceptance." (Emphasis added). The plat undisputedly establishes that Corman is the owner of a railroad right-of-way. Thus, Corman, as owner of a railroad right-of-way, is excluded from the definition of owner and therefore Corman's consent is not necessary in this type-2 annexation. In addition, as CFF aptly noted "a railroad right-of-way is not developable for anything other than the laying of railroad tracks. A piece of property used for a railroad right-of-way gains no appreciable benefit nor does it suffer a detriment from an annexation." CFF's Brief, at 6. {¶ 46} Therefore, the trial court correctly determined CFF's petition meets the unanimity requirement set forth in R.C. 709.023(E)(2) and the Commissioners followed the statutory procedure in approving the annexation. {¶ 47} We also previously stated in Violet Twp. Bd. of Twp. Trusteesv. City of Pickerington, Fairfield App. No. 02-CA-41, 2003-Ohio-845, "* * *[w]here the law provides a statutory scheme for review of an issue, injunction or declaratory action does not lie outside of that scheme. * * * [A]ll of the trustees rights and claims are limited to the statutory scheme for annexation contained in Title VII of the Revised Code." Id. at ¶ 12. See also, Washington Twp. Bd. of Trustees v. City ofMansfield, Richland App. No. 03 CA 85, 2004-Ohio-4299. *Page 12 {¶ 48} R.C. 709.023(G) limits a township to a mandamus action when challenging a petition filed under R.C. 702.023, as in the case subjudice. Prior precedent from this Court has indicated this statutory scheme excludes the right to declaratory relief. Lawrence Twp. Bd. ofTrustees v. City of Canal Fulton, Stark App. No. 2007CA00308,2008-Ohio-2690, at ¶ 22. Likewise, this statutory scheme does not authorize a party to seek injunctive relief in this instance. {¶ 49} I disagree with Lawrence Township's contention that the Ohio Supreme Court in Butler endorsed an action for declaratory judgment under R.C. Chapter 2721 as an avenue to challenge or determine the issue of "owner" or "owners" who are required to sign the petition in expedited annexation proceedings. A review of Butler indicates this issue was never raised or addressed by the Ohio Supreme Court. Accordingly, I would continue to follow our precedent and find Lawrence Township does not have standing to bring an action for declaratory or injunctive relief after the Commissioners approved the petition under R.C. 709.023(G). {¶ 50} I would therefore affirm the decision of the lower court. *Page 1

2016-07-06 06:42:24.464776+00

{1} This appeal, having been heretofore placed on the accelerated calendar, is being considered pursuant to App. R. 11.1(E) and Loc. R. 12. Pursuant to Loc. R. 12(5), we have elected to issue a full opinion in lieu of a judgment entry. {2} Sandra Roa appeals the judgment and order of the Seneca County Court of Common Pleas, Juvenile Division, granting custody of her daughter, Delee Alexis Galan, to Edward Galan and Rebecca Galan. Finding none of the arguments advanced on appeal to have merit, we affirm the decision below. {3} The pertinent facts and procedural history are as follows. Delee Galan is the daughter of appellant Sandra Roa and Thomas Galan. Delee's parents never married. From the time Delee was born until she was approximately four years old, she and her parents lived in the Fostoria, Ohio, home of Delee's paternal grandparents, Edward and Rebecca Galan ("the Galans"), the appellees herein. Over the course of these years, Rebecca Galan was Delee's primary caretaker. {4} When she was four years old, Delee and Sandra moved in with Sandra's parents in Leipsic, Ohio. Here too, Sandra left Delee's primary care to the hands of another, Delee's maternal grandmother. One year later, Delee and Sandra moved into a one-bedroom apartment, but shortly thereafter returned to Sandra's parents' home. {5} While in Leipsic, Delee was enrolled in the Leipsic school system for kindergarten and for a portion of her first grade year. During this time, her mother met her boyfriend Danny Jaso, who was a convicted drug felon. Sandra then moved with Jaso to Toledo, Ohio, to live with Jaso in his mother's house. This move prompted Sandra to place Delee back into in the care of Edward and Rebecca Galan in Fostoria, and Delee began living with her paternal grandparents on December 3, 1999. {6} In 2001, Sandra moved back to Leipsic, Ohio, and leased a two-bedroom apartment. She also obtained employment at Fox Run Manor in Findlay, Ohio. Sandra advised Delee that Delee would be coming to stay with Sandra. Shortly thereafter, the Galans initiated a complaint for the custody of Delee pursuant to R.C. 2151.23(A)(2). The Galans alleged that both of Delee's biological parents were unfit to have custody of Delee; that Sandra voluntarily relinquished custody of Delee to the Galans on December 3, 1999; that over the past two years Delee had only sporadic minimal contact with her mother; and that it would be in Delee's best interest to remain in the custody of her paternal grandparents. The Galans also requested temporary custody of Delee during the pendency of the case. The trial court granted the Galans' request for temporary custody, and a permanent custody hearing was scheduled before the magistrate on September 12, 2001. {7} A two-day hearing was held before the magistrate featuring testimony by fifteen witnesses. The magistrate's decision of November 25, 2001, found by clear and convincing evidence that Sandra and Thomas were not suitable custodians and had forfeited their parental custodial rights. The magistrate also found by clear and convincing evidence that it would be in Delee's best interest to be placed in the Galans' custody. Objections to the magistrate's decision were raised by Sandra, specifically, with regard to the present appeal, challenging the magistrate's interpretation of case law relied upon by the court.1 The trial court scheduled the matter for hearing on April 10, 2002. By final judgment entry of November 8, 2002, the trial court found Sandra to be unfit to raise Delee and awarded custody of Delee to the Galans. {8} Appellant now appeals asserting five assignments of error for our review which, for purposes of clarity and brevity, we elect to address together. ASSIGNMENT OF ERROR NO. I {9} "The trial court erred and abused its discretion in upholding the magistrate's decision granting the complaint for custody filed by Ed and Rebecca Galan because the evidence presented failed to meet the burden of proof by a preponderance of the evidence." ASSIGNMENT OF ERROR NO. II {10} "The trial court erred and abused its discretion in upholding the magistrate's decision finding that a contract for relinquishment of Delee to the Galans existed." ASSIGNMENT OF ERROR NO. III {11} "The trial court erred and abused its discretion in upholding the magistrate's finding that Sandra Roa is an unsuitable parent for custody of Delee, because such finding is unsupported by the evidence." ASSIGNMENT OF ERROR NO. IV {12} "The trial court erred and abused its discretion in upholding the magistrates [sic] finding that Sandra Roa had failed to support Delee Galan, because such finding is unsupported by the evidence." ASSIGNMENT OF ERROR NO. V {13} "The trial court erred and abused its discretion in upholding the magistrates [sic] finding that an award of custody of Delee Galan to Sandra Roa would be detrimental to the child, because such finding is unsupported by the evidence." {14} In her five assignments of error, Sandra challenges the trial court's award of custody of Delee to Edward and Rebecca Galan. Specifically, Sandra contends that the trial court's findings, pursuant toIn re Perales,2 were unsupported by the evidence. {15} As a preliminary matter, we note that a trial court has broad discretion in custody matters.3 Therefore, we will not reverse a trial court's finding absent an abuse of discretion.4 An abuse of discretion implies more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.5 Our only inquiry is whether the trial court abused its discretion in granting custody of Delee to her paternal grandparents, Edward and Rebecca Galen. For the following reasons, we find no such abuse of discretion. {16} The case herein involves a child custody dispute initiated in juvenile court pursuant to R.C. 2151.23(A)(2). Generally, custody proceedings between a parent and a nonparent are governed by the rule set forth by the Supreme Court of Ohio in Perales: "In an R.C. 2151.23(A)(2) child custody proceeding, the hearing officer may not award custody to the nonparent without first making a finding of parental unsuitability — that is, without first determining that a preponderance of the evidence shows that the parent abandoned the child, that the parent contractually relinquished custody of the child, that the parent has become totally incapable of supporting or caring for the child, or that an award of custody to the parent would be detrimental to the child."6 {17} Unlike the "best interest of the child" test enunciated in R.C. 3109.04, which looks to the best custodial situation for the child and places the child there, Perales presumes parental custody to be in the child's best interest.7 However, that presumption is overcome if the trial court determines by a preponderance of the evidence that placement with a parent will be detrimental to the child.8 Thus, underPerales, "parents who are `suitable' persons have a `paramount' right to the custody of their children unless they forfeit that right by contract, abandonment, or by becoming totally unable to care for and support those children."9 {18} The trial court's judgment entry of November 8, 2002, reveals that, in the trial court's opinion, Sandra contractually relinquished custody of Delee to the Galans on December 3, 1999, and that an award of custody to her mother would be detrimental to Delee. It is manifest that "a trial court's determination of whether a parent has forfeited his or her paramount right to custody is a factual determination that will not be reversed by a reviewing court if it is supported by some reliable, credible evidence."10 Having thoroughly reviewed the record in this case, we cannot say that the trial court abused its discretion in finding that Sandra was an unsuitable parent. {19} There is competent, credible evidence to support the assertion that Sandra contractually relinquished custody of Delee and that if Sandra were to regain custody of Delee it would be detrimental to the child. With respect to contractual relinquishment of custody, the record reflects that Delee was voluntarily placed with the Galans by her mother on December 3, 1999, when Edward picked Delee up from her school in Leipsic by agreement. That evening Sandra and Rebecca had a telephone conversation wherein Sandra placed Delee in the Galans' custody for an indefinite period of time. Both parties confirm the existence of the agreement. Sandra testified that it was her intent, at the time, to leave Delee with the Galans forevermore. Sandra also stated that the Galans believed that Delee was going to be in their care until she reached 18 years of age. Rebecca too stated that she believed that Delee was going to be in their custody "forever" and that she was going to raise Delee. {20} Other testimony supports the trial court's additional finding that Delee's placement with Sandra would also be detrimental to the child. Multiple witnesses testified that during the first four years of Delee's life when Sandra and her child lived in the Galans' home, Rebecca was the child's primary caretaker. When Sandra and Delee moved in with Sandra's parents, it was Sandra's mother who was Delee's primary caretaker. The record reflects that the only time Sandra was primarily responsible for Delee was the brief period when Sandra rented a one-bedroom apartment in Leipsic, before she and the child returned to Sandra's parents' home. {21} Further, the evidence that Sandra consistently placed her own needs above those of her daughter was also properly considered by the trial court as indicia of unsuitability. After meeting her boyfriend Danny, Sandra moved to Toledo to be with Danny uprooting Delee once again. At this time, Delee was a student in first grade and was just weeks away from completing the second quarter of the school year. Because of her mother's move and the child's placement in the custody of her paternal grandparents, Delee was never able to complete the second quarter at St. Wendolyn Elementary. With respect to her new school, witnesses at St. Wendolyn's testified that Sandra never attended a parent-teacher conference and that two years passed before the school had Sandra's address. Witnesses also testified that Sandra's visitation, up until the filing of the Galan's complaint for custody, was sporadic. {22} Additionally, the court weighed the testimony of Delee herself. During her in camera interview, Delee stated that she would like to continue to reside with the Galans and enjoys living in their home. Multiple witnesses testified that Delee was a happy child, maintained an A/B average, and was active in school and extra-curricular activities. {23} The aforementioned testimony provides a credible basis for the trial court's finding. The trial court's decision that appellant Sandra Roa contractually relinquished custody of her daughter to the Galans on December 3, 1999 is supported by competent, credible evidence. Moreover, the trial court's additional finding that an award of custody to Sandra would be detrimental to Delee is also supported by the evidence. For the foregoing reasons, we cannot say that the trial court abused its discretion in finding Sandra to be an unsuitable parent. {24} Accordingly, Appellant's five assignments of error are not well taken and are overruled. {25} 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, P.J., and SHAW, J., concur. 1 Thomas Galen proclaims that he is an unsuitable parent and does not challenge the trial court's decision. 2 (1977), 52 Ohio St.2d 89. 3 Booth v. Booth (1989), 44 Ohio St.3d 142, 144. 4 Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 23. 5 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. 6 Perales, 52 Ohio St.2d at syllabus. 7 In re Holycross (Feb. 24, 1999), Seneca App. No. 13-98-60;In re Porter (1996), 113 Ohio App.3d 580, 589. 8 Holycross, Seneca App. No. 13-98-60. 9 Perales, 52 Ohio St.2d at 97. 10 Holycross, Seneca App. No. 13-98-60.

2016-07-06 06:42:24.972911+00

OPINION {¶ 1} Appellant, Victoria Lopshire, appeals from the March 25, 2005 judgment entry of the Portage County Municipal Court, Kent Division, in which she was sentenced for criminal damaging. {¶ 2} On June 3, 2004, a complaint was filed against appellant charging her with one count of criminal damaging, a misdemeanor of the second degree, in violation of R.C.2909.06(A)(1). On June 24, 2004, appellant entered a plea of not guilty at her initial appearance. {¶ 3} A jury trial commenced on December 6, 2004. {¶ 4} At the trial, Bert Allen Prisby ("Prisby"), testified for appellee, the state of Ohio, that he had contact with appellant, his aunt, on May 19, 2004. According to Prisby, he was at his grandmother's house when he received a telephone call from appellant. Prisby stated that appellant yelled and cursed at him, as well as accused him of "taking" from his grandmother, specifically eating some lunchmeat. Prisby told appellant that he did not know what she was talking about, and said that he was going to get off the phone and go watch a game at the Ravenna Men's Civic Club ("club"), located in Ravenna, Portage County, Ohio. After he arrived at the club, he sat at the bar and ordered a beer. Within twenty-five minutes, appellant arrived at the club, walked toward Prisby, accused him of taking things from his grandmother's house, and an argument ensued. Prisby thought that appellant seemed to be intoxicated. {¶ 5} Approximately three minutes later, Prisby walked away and went to the restroom. While inside the restroom, Prisby looked out the open window while talking on his cell phone to a friend of his in Akron. He indicated that it was dusk, but that the parking lot was very well lit where he always parks his vehicle. Prisby saw appellant "standing or walking" around his car, specifically the driver's side. On his way home, Prisby noticed scratches on his vehicle with the word "bitch" written on the front and back of his car. He explained that the doors of his vehicle were scratched, as if a person walked along his car and ran a key down the side. Hoping that the matter could be resolved by the family with his grandmother's assistance, he went to her house. Prisby waited six or seven hours before reporting the incident to the police. {¶ 6} On cross-examination, Prisby stated that he parked his car in front of the men's restroom. He said that there were about ten people in the club when he arrived. When appellant came to the club, she sat down at the bar. Prisby indicated that a patron told him that appellant wanted to talk to him, so he walked over to her. Prisby testified that appellant again accused him of draining his grandmother's resources. He stuck his hand out which caused appellant to lose her balance and almost fall backward. Prisby then went to the men's restroom. He did not actually see appellant damage his car, but he saw her around it. {¶ 7} Officer Craig Wilmington ("Officer Wilmington"), with the Ravenna City Police Department at the time of the incident, testified for appellee that shortly after the encounter, he received a call from appellant regarding Prisby assaulting her. The following day, Officer Wilmington took a report from Prisby, and later photographed his vehicle. {¶ 8} At the close of appellee's case, appellant moved for an acquittal pursuant to Crim.R. 29, which was overruled by the trial court. {¶ 9} Louis King ("King"), a bartender at the club, testified for appellant that both appellant and Prisby were already at the club when he arrived at work. King served Prisby two beers while he was on duty. He saw and overheard appellant and Prisby arguing about Prisby's grandmother. King never witnessed Prisby touch appellant in any manner. He told both of them to quit arguing or he would throw them out. According to King, appellant said she was leaving, slid her drink to King, which spilled on him. King went to the men's restroom. He viewed appellant from the window head toward the street, then down an alley. King did not see appellant go near Prisby's vehicle. After King left the restroom, Prisby went into the men's room for about ten to fifteen minutes, then went outside. King entered the men's restroom again to observe Prisby outside. He saw Prisby sitting inside his vehicle, then he came back into the club. Prisby did not mention anything unusual to King after he came back inside. {¶ 10} According to appellant, she had a phone conversation with Prisby regarding his grandmother. She said that she had a couple of alcoholic drinks before she walked to the club to let Prisby know that it was not okay for him to abuse her mother's resources. At the club, appellant indicated that Prisby approached her and an argument ensued. After almost being knocked down, she left the club and walked home. She began first to walk the longer well-lit route to her house, then changed her mind and opted for the quicker dimly lit alley. Appellant stated that she did not know where Prisby's vehicle was parked, nor did she do any damage to it. After she arrived home, she contacted the police. {¶ 11} On cross-examination, appellant stated that she went to the club to confront Prisby because she was very upset with him. She never filed a criminal complaint for assault against Prisby. {¶ 12} At the close of appellant's case, appellant's counsel renewed the Crim.R. 29 motion, which was overruled by the trial court. {¶ 13} On December 7, 2004, the jury returned a verdict of guilty. On February 10, 2005, appellant filed a motion to set aside the verdict, which was overruled by the trial court. {¶ 14} Pursuant to its March 25, 2005 judgment entry, the trial court sentenced appellant to thirty days in jail, thirty days suspended, and ordered her to pay restitution. Appellant's sentence was stayed pending appeal. It is from that judgment that appellant filed a timely notice of appeal and makes the following assignments of error: {¶ 15} "[1.] The trial court erred to the prejudice of appellant, by denying appellant's [Crim.R.] 29 motions for acquittal and motion to set aside verdict when the evidence was insufficient to sustain a conviction for criminal damaging. {¶ 16} "[2.] Appellant was prejudiced by ineffective assistance of counsel, when trial counsel failed to conduct research to support with law the [Crim.R.] 29 motions for acquittal and motion to set aside the verdict." {¶ 17} In her first assignment of error, appellant argues that the trial court erred by denying her Crim.R. 29 motions for acquittal and motion to set aside the verdict because the evidence was insufficient to sustain a conviction for criminal damaging. In addition, appellant asserts that her conviction was against the manifest weight of the evidence. {¶ 18} In State v. Bridgeman (1978), 55 Ohio St.2d 261, the Supreme Court of Ohio established the test for determining whether a Crim.R. 29 motion for acquittal is properly denied. The Supreme Court stated that: "[p]ursuant to Crim.R. 29(A), 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." Id. at syllabus. "Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the sufficiency of the evidence introduced by the state." State v.Patrick, 11th Dist. Nos. 2003-T-0166 and 2003-T-0167, 2004-Ohio-6688, at ¶ 18. {¶ 19} As this court stated in State v. Schlee (Dec. 23, 1994), 11th Dist. No. 93-L-082, 1994 Ohio App. LEXIS 5862, at 13-14: {¶ 20} "`Sufficiency' challenges whether the prosecution has presented evidence on each element of the offense to allow the matter to go to the jury, while `manifest weight' contests the believability of the evidence presented. {¶ 21} "`"(* * *)The test (for sufficiency of the evidence) is whether after viewing the probative evidence and the inference[s] drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt. The claimof insufficient evidence invokes an inquiry about due process. Itraises a question of law, the resolution of which does not allowthe court to weigh the evidence. * * *"' {¶ 22} "In other words, the standard to be applied on a question concerning sufficiency is: when viewing the evidence `in a light most favorable to the prosecution,' * * * `(a) reviewing court (should) not reverse a jury verdict where there is substantial evidence upon which the jury could reasonably conclude that all of the elements of an offense have been proven beyond a reasonable doubt.' * * *" (Emphasis sic.) (Citations omitted.) {¶ 23} "* * * [A] reviewing court must look to the evidence presented * * * to assess whether the state offered evidence on each statutory element of the offense, so that a rational trier of fact may infer that the offense was committed beyond a reasonable doubt." State v. March (July 16, 1999), 11th Dist. No. 98-L-065, 1999 Ohio App. LEXIS 3333, at 8. The evidence is to be viewed in a light most favorable to the prosecution when conducting this inquiry. State v. Jenks (1991),61 Ohio St.3d 259, paragraph two of the syllabus. Further, the verdict will not be disturbed on appeal unless the reviewing court finds that reasonable minds could not have arrived at the conclusion reached by the trier of fact. State v. Dennis (1997),79 Ohio St.3d 421, 430. {¶ 24} With regard to manifest weight, this court stated inSchlee, supra, at 14-15: {¶ 25} "* * * `[M]anifest weight' requires a review of the weight of the evidence presented, not whether the state has offered sufficient evidence on each element of the offense. {¶ 26} "`In determining whether the verdict was against the manifest weight of the evidence, "(* * *) the court reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. (* * *)"' (Citations omitted.) * * *" (Emphasis sic.) {¶ 27} A judgment of a trial court should be reversed as being against the manifest weight of the evidence "only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Thompkins (1997), 78 Ohio St.3d 380, 387. {¶ 28} In the instant matter, appellant is challenging her R.C. 2909.06(A)(1) criminal damaging conviction, which provides: "[n]o person shall cause, or create a substantial risk of physical harm to any property of another without the other person's consent * * * [k]nowingly, by any means[.]" {¶ 29} In finding appellant guilty of criminal damaging, the jury was required to find that appellee had proven beyond a reasonable doubt that she acted knowingly. R.C. 2901.22(B) states: "[a] person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." {¶ 30} Here, Prisby testified that after arguing with appellant on the phone at his grandmother's house, he went to the club where appellant also showed up, and another argument ensued. Again, Prisby indicated that he went to the men's restroom, looked out of the window, and saw appellant standing or walking around his car, specifically by the driver's side of his vehicle. When Prisby went outside, he saw scratches with the word "bitch" written on the front and back of his car. The doors of his vehicle were scratched, as if someone walked by and ran a key down the side of his car. Prisby's vehicle was not scratched, nor was any profanity written on it, before he arrived at the club. Also, he did not give anyone permission to damage his vehicle. {¶ 31} The foregoing damage satisfies the definition of physical harm to property. R.C. 2901.01(A)(4). In addition, appellant's knowledge can be ascertained from the surrounding facts and circumstances of the night at issue. See State v.Johnson (1978), 56 Ohio St.2d 35, 38, citing State v. Huffman (1936), 131 Ohio St. 27, paragraph four of the syllabus. {¶ 32} We note that appellee could not put on direct evidence that appellant was actually seen "keying" Prisby's car. However, the law does not require such a high standard of proof. State v.Williams, 7th Dist. No. 04 MA 38, 2005-Ohio-4762, at ¶ 23. "If that were so, convictions for crimes without eyewitnesses would never be upheld." Id. Thus, the Supreme Court of Ohio held inJenks, supra, paragraph one of the syllabus: "[c]ircumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction." {¶ 33} Pursuant to Schlee, supra, considering the evidence in a light most favorable to the prosecution, the jury could have found appellant guilty of criminal damaging beyond a reasonable doubt. {¶ 34} With respect to appellant's assertion that her conviction was against the manifest weight of the evidence, we note that the jury is in the best position to assess the credibility of witnesses. State v. DeHass (1967),10 Ohio St.2d 230, paragraph one of the syllabus. Here, the jury chose to believe Prisby rather than appellant. Based on the evidence presented, we cannot say that the jury clearly lost its way in finding appellant guilty of criminal damaging. See Williams, supra, at ¶ 22-24; State v. Howdyshell (Aug. 15, 1997), 11th Dist. No. 96-A-0064, 1997 Ohio App. LEXIS 3673, at 5 (holding that the trial court did not clearly lose its way in finding appellant guilty of criminal damaging where a witness saw the appellant walk from the back bumper to the front bumper of the victim's car, and the following day, the victim noticed key marks on her vehicle). {¶ 35} Appellant's first assignment of error is without merit. {¶ 36} In her second assignment of error, appellant alleges that she was prejudiced by the ineffective assistance of her counsel. She stresses that her counsel failed to conduct research to support with law the Crim.R. 29 motions for acquittal and motion to set aside the verdict. {¶ 37} "In reviewing a claim of ineffective assistance of counsel, there exists a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Mick (Sept. 7, 1990), 11th Dist. No. 88-T-4088, 1990 Ohio App. LEXIS 3908, at 5, citing State v.Post (1987), 32 Ohio St.3d 380. "Mere inexperience or unskillfulness, mistakes or errors of judgment, and improper trial strategy in connection with the case are ordinarily insufficient to justify setting aside a judgment of conviction because of the claimed incompetency of retained counsel for the accused." State v. Peoples (1971), 28 Ohio App.2d 162, paragraph five of the syllabus. "The judgment of conviction is void where retained counsel's representation has been so inadequate as to make the trial a farce and a mockery of justice, thereby denying the accused of a fair trial (due process of law) or invading his constitutional right to the effective assistance of counsel." Id., paragraph six of the syllabus. {¶ 38} Strickland v. Washington (1984), 466 U.S. 668, 687 states: {¶ 39} "[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction * * * has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction * * * resulted from a breakdown in the adversary process that renders the result unreliable." {¶ 40} "* * * When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-688. State v. Bradley (1989),42 Ohio St.3d 136, 142, quoting Strickland, supra, at 694, states: "[t]o warrant reversal, `(t)he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" {¶ 41} In the case at bar, appellant's counsel raised the Crim.R. 29 motions in a timely manner. Based on Strickland, supra, appellant has failed to demonstrate that her counsel was deficient, or that such deficiency resulted in prejudice to her. Appellant has not shown, pursuant to Bradley, supra, that but for her counsel's claimed unprofessional errors, the result of the proceeding would have been different. Even assuming that appellant's counsel made a professionally unreasonable error by not citing case law in the Crim.R. 29 motions and/or motion to set aside the verdict, that does not warrant setting aside the judgment since the "error," if any, had no effect on the judgment. See Bradley, supra, at 142. {¶ 42} Appellant's second assignment of error is without merit. {¶ 43} For the foregoing reasons, appellant's assignments of error are not well-taken. The judgment of the Portage County Municipal Court, Kent Division, is affirmed. O'Neill, J., Rice, J., concur.

2016-07-06 06:42:25.11229+00

JOURNAL ENTRY AND OPINION {¶ 1} Relator, Bennie Anderson, is the defendant in State v.Anderson, Cuyahoga County Court of Common Pleas Case Nos. CR-203616, 464328 and 464929. Currently, appeals are pending in Case Nos. CR-464328 (App. No. 87828) and 464929 (App. No. 87836). Respondents are the court of common pleas and the clerk. {¶ 2} Anderson filed a motion to conform his sentence to S.B. 2 as modified by case law and a motion for collection assistance on September 13, 2005. On October 7, 2005, he also filed a notice to initiate document theft investigation. Anderson complains that there has been no disposition of these filings and requests that this court compel respondent court to issue rulings and respondent clerk to file the rulings. {¶ 3} Respondent has filed a motion to dismiss, attached to which are various journal entries from Case Nos. CR-203616, 464328 and 464929 denying Anderson's motions. Anderson has filed a motion to dismiss in part in which he concedes that the action should be dismissed as to Case Nos. CR-203616, 464328 and 464929. Yet, he also requests that this court "extend" this case to compel the clerk to correct the arrest date in Case Nos. CR-399468 and 400933. {¶ 4} Crim. R. 36 authorizes the correction of errors in the record "at any time." As a consequence, Anderson has an adequate remedy in the ordinary course of the law. Compare State ex relAhmed v. Costine, 103 Ohio St.3d 166, 2004-Ohio-4756,814 N.E.2d 865, at ¶ 5 (App.R. 9 is an adequate remedy for correcting errors in the record). We deny, therefore, Anderson's request for relief regarding Case Nos. CR-399468 and 400933. {¶ 5} Anderson's complaint and supporting documentation also are defective in ways that require dismissal. "A complaint for a writ of mandamus must be brought in the name of the state, on relation of the person applying. The failure of [relator] to properly caption her complaint for a writ of mandamus warrants dismissal." Marcano v. State, Cuyahoga App. No. 87797,2006-Ohio-1946, at ¶ 2 (citations deleted). See also R.C.2731.04. Anderson's complaint is not captioned as being on relation of the state. Anderson "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. "* * * Additionally, relator `did not file an R.C. 2969.25(A)affidavit describing each civil action or appeal of a civilaction he had filed in the previous five years in any state orfederal court and also did not file an R.C. 2969.25(C) certifiedstatement by his prison cashier setting forth the balance in hisprivate 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, wedeny 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, Anderson 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. "The 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 ex rel. Hitev. 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} Accordingly, for the reasons stated above and in light of relator's motion to dismiss in part, this action is dismissed to the extent that Anderson voluntarily dismisses the claims stated in his original complaint. Respondent's motion to dismiss is overruled as moot. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B). Relator to pay costs. Complaint dismissed. Kilbane, J., and Corrigan, J., Concur.

2016-07-06 06:42:22.09896+00

OPINION {¶ 1} Appellant, Jonalyn D'Amico ("D'Amico"), appeals a judgment of the Montgomery County Common Pleas Court, Juvenile Division, granting specified visitation rights to her three-year-old child's great-aunt, Appellee, Patricia Hill ("Hill"). Appellant argues that the trial court erred and abused its discretion in determining the best interests of her daughter Madison C; that the trial court failed to give special *Page 2 weight to her wishes regarding visitation; and that the visitation order was excessive. For the following reasons, we find that the trial court failed to grant special weight to the parent's wishes, and we, therefore, reverse the judgment of the trial court. {¶ 2} In May 2003, D'Amico returned to the Dayton area shortly after giving birth to her third child, Madison. D'Amico also brought with her her two older children, Hailey, age 13, and Kayla, age 10. D'Amico had lived outside the State of Ohio for approximately fourteen years; however, she maintained some sporadic contact with her aunt, Patricia Hill, during this period of time. {¶ 3} After D'Amico returned to the Dayton area, Hill offered to assist D'Amico with babysitting the three children while D'Amico worked and later attended school. D'Amico initially attempted to pay Hill for her services; however, Hill refused payment. This arrangement continued until August 2005, when it was mutually terminated due to a deteriorating relationship between Hill and D'Amico. D'Amico claims that Hill repeatedly refused to honor D'Amico's requests regarding the rearing of her children, and that Hill became incensed at D'Amico's fourth pregnancy, even asking D'Amico's children to pray for a miscarriage. D'Amico, while conceding that Hill and Madison had bonded during this arrangement, also testified that Madison always came home "wild and crazy'" and that she is much more disciplined in her behavior now. D'Amico also testified that the older children told her that Hill had beaten them with sticks as punishment. Hill claims that the final altercation came about as the result of D'Amico asking Hill for money to have an abortion, which Hill refused. {¶ 4} Thereafter, Hill began threatening and harassing D'Amico, demanding that she be allowed to see Madison. On two occasions the police were called, and they *Page 3 advised Hill to have no further contact with D'Amico. Hill apparently wanted nothing to do with the older children, Hailey and Kayla. {¶ 5} On September 29, 2005, Hill filed a complaint to establish visitation with Madison in the Montgomery County Common Pleas Court, Juvenile Division. A guardian-ad-litem was appointed, and the matter proceeded to trial on May 18, 2006 in front of a magistrate. The magistrate, finding that it was in the best interests of the child, recommended the establishment of visitation between Hill and Madison for one weekend per month and ordered that Hill and D'Amico have no contact with one another. D'Amico filed objections to the magistrate's report, which were overruled, and the trial court adopted the order of the magistrate on January 16, 2007. {¶ 6} It is from this judgment that D'Amico has filed the instant appeal. The matter is now before this Court for consideration of D'Amico's three assignments of error. FIRST ASSIGNMENT OF ERROR {¶ 7} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING THAT VISITATION WITH PATRICIA HILL WAS IN THE BEST INTEREST OF MADISON AS SAID FINDING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." SECOND ASSIGNMENT OF ERROR {¶ 8} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY UNCONSTITUTIONALLY APPLYING OHIO REVISED CODE SECTION 3109.12 AND SECTION 3109.051(D) WHEN IT FAILED TO GIVE ANY SPECIAL WEIGHT TO THE *Page 4 APPELLANT'S WISHES REGARDING VISITATION." THIRD ASSIGNMENT OF ERROR {¶ 9} "THE TRIAL COURT ERRED IN GRANTING AN EXCESSIVE ORDER OF VISITATION TO PATRICIA HILL." {¶ 10} R.C. section 3109.12 provides that "[i]f a child is born to an unmarried woman, * * * any relative of the woman may file a complaint requesting the court of common pleas of the county in which the child resides to grant them reasonable companionship or visitation rights with the child[,] * * * if it determines that the granting of the parenting time rights or companionship or visitation rights is in the best interest of the child." The legislature has then determined that in considering the best interest of the child, that a court should apply the factors provided in R.C. section 3109.051(D). {¶ 11} The United States Supreme Court, considering the constitutionality of a strikingly similar statute, observed that "the nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States' recognition of these changing realities of the American family. Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties. * * * The extension of statutory rights in this area to persons other than the child's parents, however, comes with an obvious cost. For example, the States' recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship." Troxel v. Granville (2000), 530 U.S. 57, 64,120 S.Ct. 2004, 147 L.Ed.2d 49. *Page 5 {¶ 12} The U.S. Supreme Court went on to observe that theFourteenth Amendment to the U.S. Constitution "includes a substantive component that `provides heightened protection against government interference with certain fundamental rights and liberty interests.'" Id. at 65, quoting Washington v. Glucksberg (1997), 521 U.S. 702, 719,117 S.Ct. 2258, 138 L.Ed.2d 772. See, also, Reno v. Flores (1993), 507 U.S. 292,301-02, 113 S.Ct. 1439, 123 L.Ed.2d 1. The fundamental liberty interest involved in Troxel, as well as the case herein, is "the interest of parents in the care, custody, and control of their children, [which] is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme Court]." Troxel, 530 U.S. at 65. {¶ 13} The Supreme Court of Ohio has, likewise, consistently recognized this fundamental right. See Harrold v. Collier,107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.Ed.2d 1165, at ¶ 40; Zivich v. MentorSoccer Club, Inc. (1998), 82 Ohio St.3d 367, 372, 696 N.Ed.2d 201;State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 10, 15 O.O.3d 3,399 N.E.2d 66. {¶ 14} The basis for the U.S. Supreme Court's decision affirming the Supreme Court of Washington's decision that the Washington statute was unconstitutional was that the state trial court gave no special weight to the parent's determination of the child's best interest. The U.S. Supreme Court stated that "the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination." (Emphasis added.) Troxel, 530 U.S. at 70. While the Supreme Court passed on the primary question presented-whether the Due Process *Page 6 Clause requires all nonparental visitation statutes to include a showing of harm or potential harm as a condition precedent to granting such visitation-they strongly expressed that "the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best elaborated with care." Id. at 73. {¶ 15} The Supreme Court of Ohio subsequently considered the constitutionality of this statute within the context of the U.S. Supreme Court's decision in Troxel. In Harrold v. Collier, 107 Ohio St.3d 44,2005-Ohio-5334, 836 N.E.2d 1165, the Ohio Supreme Court, distinguishing the Washington statute from the Ohio statute in question, nevertheless held, in answering the certified question, that "Ohio courts are obligated to afford some special weight to the wishes of parents of minor children when considering petitions for nonparental visitation made pursuant to R.C. 3109.11 or 3109.12." Id. At paragraph one of the syllabus. {¶ 16} In discussing the language of the applicable Ohio statutes, R.C. 3109.11, 3109.12 and 3109.051, the Supreme Court of Ohio stated that "consideration of the parents' wishes and concerns is mandatory. Moreover, in light of Troxel and our above holding on the certified conflict issue, a trial court must give special weight to that factor in making its visitation determination, thus protecting a parent's due process rights." Id. at ¶ 42. {¶ 17} This Court would note here that this "special weight" requirement is the single necessary component of the decision-making process that provides the heightened Constitutional protection necessary to protect against governmental interference with the fundamental liberty interest of parents in the care, custody, and *Page 7 control of their children. {¶ 18} In neither Troxel nor Harrold, however, was the definition of "special weight" addressed. The Seventh District Court of Appeals, inOliver v. Feldner, 149 Ohio App.3d 114, 2002-Ohio-3209, 776 N.E.2d 499, one of the cases certified as a conflict in the Harrold case, however, discussed the concept of "special weight." That court stated that "[e]ven though the Troxel court did not define `special weight,' previous [United States] Supreme Court decisions make it clear that `special weight' is a very strong term signifying extreme deference. See, e.g., Rodrigues v. Hawaii (1984), 469 U.S. 1078, 1080,105 S.Ct. 580, 83 L.Ed.2d 691 (special weight is given to a verdict of acquittal, signifying a conclusive presumption that a second trial would be unfair); Guardians Assn. v. Civ. Sen/. Comm. (1983), 463 U.S. 582, 621,103 S.Ct. 3221, 77 L.Ed.2d 866 (special weight given to long-standing and consistent administrative interpretations of a statute; court must defer to the interpretation even if the court would interpret the statute differently); Comstock v. Group of Institutional Investors (1948), 335 U.S. 211, 230, 68 S.Ct. 1454, 92 L.Ed. 1911 (findings of a bankruptcy judge are given special weight; reviewing courts should defer to those findings). The `special weight' requirement, as illuminated by these prior Supreme Court cases, means that the deference provided to the parent's wishes will be overcome only by some compelling governmental interest and overwhelmingly clear circumstances supporting that governmental interest." Oliver, 2002-Ohio-3209 at ¶ 59. {¶ 19} This Court would also point to another U.S. Supreme Court decision that defines `special weight' in a somewhat analogous application. In Whitley v. Albers (1986), 475 U.S. 312, 106 S.Ct. 1078,89 L.Ed.2d 251, the Court, discussing a prison's *Page 8 internal security measures, states that these matters are normally left to the discretion of prison administrators, and that these decisions carry "special weight"; that these decisions of the administrators "should be accorded wide-ranging deference." Id. At 321-22. See, also,Bell v. Wolfish 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447. In explaining "special weight," the court stated "it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice." Whitley, 475 U.S. at 322. The choice of a "fit" parent in a nonparental visitation context, expressed with sufficient reasoning to support that choice can be no less of a "considered choice" that is entitled to the same deference of that of a prison official exercising his occupational duties. {¶ 20} In this case, the magistrate made the following findings: "(1) the child and maternal great-aunt have established a strong bond; (2) the maternal great-aunt has cared for the child since infancy and she is genuinely concerned for the child's welfare; and (3) the Court finds that visitation with the maternal great-aunt is in the best interests of the child[.]" These bare bones findings totally ignore the wishes of the parent, and, therefore, cannot be said to have been considered by the magistrate whatsoever in making her recommendation, which was adopted by the trial court. In ruling on the objections to the magistrate's report, the trial court, while giving lip service to the parent's objection, does not provide any rationale for going beyond the wishes of the parent and simply concludes that visitation time is in the child's best interest. As the U.S. Supreme Court stated in Troxel, the manner in which the standard is applied must be "`elaborated with care.'"Troxel, 530 U.S. at 73 (citation omitted). Therefore, from the findings before us, we cannot determine that the trial court gave the requisite "special weight" to the *Page 9 wishes of the parent. {¶ 21} Furthermore, in considering the testimony, we note that the mother's wishes to deny visitation were based upon reasonably objective reasons. And, there was no evidence that the mother's choice to deny the visitation would result in any physical or emotional harm to the child. Therefore, there is no evidence before the trial court from which it could have made a finding that would support a conclusion that there was any compelling government interest in interfering with the mother's fundamental liberty interest in raising her daughter as she deems appropriate. Therefore, the trial court's decision is contrary to the manifest weight of the evidence. {¶ 22} Based upon the foregoing, we find that the trial court erred in granting the request for visitation rights under R.C. 3109.12. The first and second assignments of error are sustained. And, based upon this determination, the third assignment of error has been rendered moot. {¶ 23} Having found error prejudicial to the Appellant herein, in the particulars assigned and argued, we reverse the judgment of the trial court. GRADY, J., concurs.

2016-07-06 06:42:22.319313+00

OPINION {¶ 1} This is an appeal from a summary judgment for the defendants on their statute of limitations defense. {¶ 2} In 2001 Plaintiff, Barbara Jett, was employed by Delphi Chassis ("Delphi") at its factory in Dayton. *Page 2 Defendant, Interim Healthcare of Dayton, Inc. ("Interim Healthcare"), is an independent contractor that by agreement with Delphi provided medical services to Delphi's employees at the factory. Defendant, Cheryl A. Fleck, is a registered nurse employed by Interim Healthcare who was assigned to work in the medical department at Delphi's factory. {¶ 3} On June 4, 2001, Plaintiff Jett, who was working the second shift at Delphi's factory, presented at the medical department to obtain custom-fitted earplugs. Such plugs are formed by inserting a clay-like substance into the user's ear canal. Before insertion, several drops of a liquid hardening agent must be added to the substance. {¶ 4} Nurse Fleck prepared the clay-like substance, kneading it with her hands, and inserted it into Jett's ear canal. However, Nurse Fleck failed to add the hardening agent. In a complaint in the action she subsequently filed against Delphi, Interim Healthcare, and Nurse Fleck, Jett alleged that as a result of Nurse Fleck's negligent act or omission the substance partially liquified after insertion in her ear canal, proximately causing injuries to her ears, hearing, and balance. Jett's spouse, James Jett, alleged a loss of consortium arising from those injuries. {¶ 5} Jett filed her complaint on June 4, 2003. The *Page 3 action was voluntarily dismissed and was refiled on January 13, 2006. Defendants Interim Healthcare and Jett filed an answer that pleaded the affirmative defense of statute of limitations. {¶ 6} Interim Healthcare and Nurse Fleck moved for summary judgment on their statute of limitations defense. They argued that the claim for relief in the action Jett filed is a "medical claim" governed by the one-year statute of limitations, and that the action Jett first commenced in 2003 is barred because the cause on which the claim for relief was brought had accrued in 2001, more than one year before. Jett argued that her claim is instead a claim for personal injuries governed by the two-year statute of limitations, under which the action was timely filed. {¶ 7} After thoroughly analyzing the contentions of the parties and the record before it, the trial court found that Jett's action was brought on a medical claim and granted the motion for summary judgment the Defendants filed. Jett filed a timely notice of appeal. ASSIGNMENT OF ERROR {¶ 8} "THE TRIAL COURT ERRED IN APPLYING THE ONE-YEAR MEDICAL CLAIM STATUTE OF LIMITATIONS OF FORMER R.C. _ 2305.11 INSTEAD OF THE TWO-YEAR NEGLIGENCE STATUTE OF LIMITATIONS OF *Page 4 R.C. _ 2305.10, AND THUS ERRED IN GRANTING SUMMARY JUDGMENT IN APPELLEES' FAVOR." {¶ 9} 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. Civ. R. 56. The burden of showing that no genuine issue of material fact exists is on the moving party. Harless v. Willis Day WarehousingCo. (1978), 54 Ohio St.2d 64. All evidence submitted in connection with a motion for summary judgment must be construed most strongly in favor of the party against whom the motion is made. Morris v. First NationalBank Trust Co. (1970), 21 Ohio St.2d 25. In reviewing a trial court's grant of summary judgment, an appellate court must view the facts in a light most favorable to the party who opposed the motion. Osborne v.Lyles (1992), 63 Ohio St.3d 326. Further, the issues of law involved are reviewed de novo. Nilavar v. Osborn (1998), 127 Ohio App.3d 1. {¶ 10} Jett has moved to strike a copy of her deposition that Fleck attached to her brief on appeal, because the deposition was not filed in the trial court's proceedings. We may not add or rely on evidentiary materials that were not before the trial court. State v. Ishmail (1978), *Page 5 54 Ohio St.2d 402. Jett's motion is granted. {¶ 11} The statute of limitations governing medical claims that was in effect in 2001 when the allegedly negligent acts or omissions of Nurse Fleck occurred, R.C. 2305.11(B), provided that an action on a medical claim must be commenced within one year after the cause of action accrued. R.C. 2305.11(D)(3), also in effect at that time, defined a "medical claim" as: {¶ 12} "[A]ny claim that is asserted in any civil action against a physician, podiatrist, or hospital, against any employee or agent of a physician, podiatrist, or hospital, or against a registered nurse or physical therapist, and that arises out of the medical diagnosis, care, or treatment of any person. `Medical claim' includes derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person." {¶ 13} R.C. 2305.10 provides that an action for bodily injury shall be brought within two years after the cause thereof accrues. The shorter statute of limitations on medical claims alleging malpractice as a proximate cause of bodily injuries operates as an exception to the two-year rule. Whether an action for bodily injury is in fact brought on a medical claim presents two issues. The first is whether the *Page 6 person or entity against which the action is brought is within the coverage of R.C. 2305.11(D)(3), which defines a medical claim. The second issue is whether the claim arises out of the medical diagnosis, care, or treatment of any person. {¶ 14} Interim Healthcare's potential liability derives from the alleged liability of its employee, Nurse Fleck, under the doctrine of respondeat superior. Jett concedes that Nurse Fleck, being a registered nurse, is a person within the coverage of R.C. 2305.11(D)(3). The further question, and the issue which this appeal presents, is whether Jett's claim for relief against Nurse Fleck is one that "arises out of the medical diagnosis, care, or treatment of any person." {¶ 15} Jett argues that the record before the trial court was insufficient to permit a finding that her claim against Nurse Fleck arose out of the medical diagnosis, care, or treatment of any person. Jett relies on Browning v. Burt (1993), 66 Ohio St.3d 544, 556-57, which held that medical diagnosis or treatment "are terms of art having a specific and particular meaning relating to the identification and alleviation of a physical or mental illness, disease, or defect." Jett contends that none of those conditions are shown by this record to have been the purpose of the earplugs for which she was fitted by Nurse Fleck. *Page 7 {¶ 16} In Browning, the Supreme Court distinguished a claim against a hospital for negligent credentialing of a physician from a medical claim alleging malpractice. While that particular distinction is not an issue in the present case, we are bound to apply the Browning definition of a medical claim to the facts before us. Defendants argue that the requirements of the Browning definition are shown by the purposes of the earplugs she requested to which Jett testified in her deposition. However, that deposition is not before us. {¶ 17} Civ. R. 56(C), governing motions for summary judgment, provides that "[s]ummary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of facts, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. . . ." {¶ 18} The complaint that Jett filed in commencing her action contains three claims for relief. The first claim for relief, alleging the liability of Nurse Fleck and Interim Healthcare, states: {¶ 19} "2. On or about June 4, 2001, and at all times *Page 8 relevant hereto, Plaintiff, Barbara Jett was an employee of Delphi Chassis, working at the Needmore Road Plant location in Dayton, Ohio. {¶ 20} "3. At all times relevant, Defendant, Interim Healthcare was contracted by Delphi Chassis to provide various nursing, industrial, and related services to dispensary department at Delphi Chassis' location on Wisconsin Blvd in Dayton, Ohio. Included in these services was the assistance in preparation and providing plant employees with custom-fitted earplugs and other personal protective devices. {¶ 21} "* * * {¶ 22} "7. On or about June 4, 2001, Plaintiff, Barbara Jett, was in need of earplugs for use during her employment in the factory. {¶ 23} "8. Defendant, Interim Healthcare, and/or an employee thereof, was present for this effort, and was responsible for the preparation and fitting of Plaintiff, Barbara Jett's earplugs. {¶ 24} "9. The preparation of the earplugs required the use of a mixture to be placed in or near the Plaintiff's outer and/or inner ear, and the letting of said mixture to harden and form to the shape of the Plaintiff's ear opening. {¶ 25} "10. Said employee of Defendant, Interim *Page 9 Healthcare, was negligent in preparing said mixture for the earplug. TO WIT: Defendant failed to include the hardening agent, and/or otherwise failed to use the proper mixture prior to inserting it into Plaintiff, Barbara Jett's ear, which resulted in a more liquid mixture (which did not harden) being inserted and/or otherwise poured into Plaintiff, Barbara Jett's ear." {¶ 26} In the third claim for relief, which alleged the liability of Delphi for the injuries Jett suffered, Jett's complaint alleged: {¶ 27} "19. On or about June 4, 2001 the Plaintiff, Barbara Jett, as part of her job duties as an employee of Defendant, Delphi Chassis Systems, Inc., was required by Defendant to work on machines which were loud, causing the need for her to wear earplugs and other similar personal protective equipment." {¶ 28} Jett's claim for relief against Delphi was settled. However, in granting summary judgment for Nurse Fleck and Interim Healthcare the trial court could rely on Jett's allegations in her claim for relief against Delphi because they are pleadings in the single "action" Jett commenced on her claims for relief against all three defendants. "It is generally held that where a party has alleged a matter of fact *Page 10 in his pleadings, the pleadings are evidence against him as an admission of fact so alleged." Shifflet v. Thomson Newspapers (Ohio), Inc. (1982),69 Ohio St.2d 179, 187 (citation omitted). The court may consider such evidence for purposes of Civ. R. 56(C). Id. {¶ 29} Nurse Fleck testified that she is a registered nurse and has been since 1980. (Tr. 16). She holds several certificates, including one for occupational health and hearing conservation (Tr. 17) or "audiometrics", which she testified involves avoidance of hearing loss. (Tr. 21). She was trained for those purposes by physicians. (Tr. 22). She worked for Interim Healthcare at Delphi's medical department under the direct supervision of a senior nurse (Tr. 24) and under standing orders developed by a physician in Michigan. (Tr. 42). {¶ 30} Nurse Fleck testified that she learned to fit custom-fitted earplugs by observing other nurses perform that task. (Tr. 25, 27). She testified that when fitting earplugs she regularly uses an otoscope to examine the subject's ear canals for fluid before inserting the clay-like substance to form an earplug. (Tr. 57). Nurse Fleck further testified that when she fits earplugs, including those for Jett, Nurse Fleck performs her function as a nurse. (Tr. 30, 39, 54). *Page 11 {¶ 31} R.C. 4723.01 states: {¶ 32} "As used in this chapter: {¶ 33} "(A) `Registered nurse' means an individual who holds a current, valid license issued under this chapter that authorizes the practice of nursing as a registered nurse. {¶ 34} "(B) 'Practice of nursing as a registered nurse' means providing to individuals and groups nursing care requiring specialized knowledge, judgment, and skill derived from the principles of biological, physical, behavioral, social, and nursing sciences. Such nursing care includes: {¶ 35} "(1) Identifying patterns of human responses to actual or potential health problems amenable to a nursing regimen; {¶ 36} "(2) Executing a nursing regimen through the selection, performance, management, and evaluation of nursing actions; {¶ 37} "(3) Assessing health status for the purpose of providing nursing care; {¶ 38} "(4) Providing health counseling and health teaching; {¶ 39} "(5) Administering medications, treatments, and executing regimens authorized by an individual who is authorized to practice in this state and is acting within the *Page 12 course of the individual's professional practice; {¶ 40} "(6) Teaching, administering, supervising, delegating, and evaluating nursing practice. {¶ 41} "(C) `Nursing regimen' may include preventative, restorative, and health-promotion activities. {¶ 42} "(D) `Assessing health status' means the collection of data through nursing assessment techniques, which may include interviews, observation, and physical evaluations for the purpose of providing nursing care." {¶ 43} On this record, reasonable minds could only find that Jett "needed" to have custom-fitted earplugs as "personal protective equipment" while she worked on loud machines, and that Nurse Fleck, a registered nurse, engaged in the practice of nursing when she provided or attempted to provide for that need by fitting Jett with earplugs for that purpose, thereby engaging in actions that constituted a "nursing regimen" in the selection and performance of a preventive and health-promotion activity. R.C. 4723.01(B)(1). Further, when she first examined Jett's ear canals for fluid by using an otoscope device, Nurse Fleck provided a service requiring specialized knowledge, judgment, and skill derived from principles of biological sciences in which she was trained. R.C. 4723.01(B). Therefore, reasonable minds could only find *Page 13 that Nurse Fleck engaged in the practice of nursing as that is defined by R.C. 4723.01 when she attempted to provide Jett with custom-fitted earplugs. {¶ 44} The rule of Browning requires proof that the actor's conduct related to the identification and alleviation of a physical or mental illness, disease, or defect in order to constitute the basis of a medical claim. Reasonable minds could only find that the purpose of the service Nurse Fleck provided Jett was to create a device to protect Jett against injury to her hearing, which is a disease or defect, that in doing so Nurse Fleck engaged in a nursing specialty in which she was trained, and that she performed as a registered nurse. {¶ 45} Jett argues that Nurse Fleck's testimony that she acted as a nurse when she fitted Jett for earplugs is not determinative of whether Jett's action is on a "medical claim", because it is not in what capacity the actor perceived himself as rendering a professional service but how the recipient perceived the actor as rendering a service that should control. That rule was announced in Sarnovsky v. Snyder, Evans Anderson, Inc. (1997), 38 Ohio App.3d 33, in which the issue was whether a surgeon against whom a medical malpractice claim was brought had acted as a physician or as a dentist, which affected what expert opinion could be offered *Page 14 on a malpractice claim. That is not a matter in issue in the present case, in which the issue is instead whether the action is brought on a medical claim. That is a question to be determined objectively, from the service that was performed. "The critical phrase, `arising out of the diagnosis, care, or treatment of any person', describes clinical assistance for a patient." Price v. Cleveland Clinic Foundation (1986),33 Ohio App.3d 301, 304. The service Nurse Fleck performed comfortably fits that definition. Jett has offered no evidence that she perceived the service in any different way. {¶ 46} Jett argues that she cannot be classified as a patient because she may have "needed" custom-fitted earplugs for some purpose other than to protect against a loss of hearing, such as, for example, for use while swimming. We are not persuaded that such a purpose would except Jett's claim from the definition of a medical claim in R.C. 2305.11(D)(3). In any event, it would not affect the nature of the service Nurse Fleck provided. Furthermore, on this record the contention is speculative. If that was Jett's purpose, it was her burden to offer evidence to prove it in order to preserve a genuine issue of material fact in relation to the proof in Nurse Fleck's deposition. Dresher v. Burt (1996), 75 Ohio St.3d 280. Indeed, the assertion is contradicted by the *Page 15 inference reasonably drawn from Jett's pleading that she "needed" the earplugs to protect her sense of hearing. {¶ 47} Finally, Jett argues that her action is not barred because her employer, Delphi, had a motivation and self-interest in insuring compliance with OSHA regulations. Nurse Fleck testified that she is familiar with OSHA regulations and compliance, but there is no evidence that such compliance was the purpose of the services Nurse Fleck provided to Jett. Furthermore, the exception on which Jett relies applies only when in a case of this kind an employer requires an employee to submit to a medical examination or procedure. New YorkCentral Railroad Co. v. Wiler (1931), 124 Ohio St. 118. There is no evidence that Delphi required Jett to obtain earplugs. {¶ 48} No error is demonstrated in the trial court's order granting the motion for summary judgment that Nurse Fleck and Interim Healthcare filed on their statute of limitations defense. The assignment of error is overruled. The judgment of the trial court will be affirmed. BROGAN, J. and FAIN, J., concur. *Page 1

2016-07-06 06:42:22.351312+00

DECISION AND JUDGMENT ENTRY {¶ 1} This matter is before the court on appeal from a judgment of the Lucas County Court of Common Pleas in which appellant, Brian W. Snow, was awarded prejudgment interest pursuant to R.C. 1343.03(A). Appellant argues that he should have received prejudgment interest in accordance with R.C. 1343.03(C). For the reasons that follow, we affirm the decision of the trial court. {¶ 2} Appellant was involved in two separate automobile accidents in July 1995, the first with Denise M. Pollick and the second with Larry D. Booth, Sr. At the time of the accidents, appellant was insured by appellee, Allstate Insurance Company, with uninsured/underinsured policy limits of $100,000 per person and $300,000 per accident. Appellant filed negligence suits against both Pollick and Booth, and the cases were consolidated. Appellee filed a motion to intervene in the case when it learned that Pollick was an uninsured motorist. {¶ 3} Appellant claimed he had incurred approximately $26,000 in medical expenses and that he had lost wages in the amount of $5,800 as a result of the two accidents. Appellant also claimed he was facing $290,000 in future medical expenses resulting from his injuries. Consequently, appellant asserted that he was entitled to $200,000 under his own uninsured motorist automobile policy, and an additional $25,000 which represented the limit of Booth's liability insurance policy. {¶ 4} Appellee and Booth countered appellant's $225,000 settlement offer with an offer of $15,000 to settle the claim. They contended that the accidents had resulted in relatively minor soft tissue injuries to appellant, and any more serious injuries were caused by factors other than the accidents. No further settlement discussions took place until the morning of trial when the trial judge conducted settlement negotiations. Those negotiations did not result in any change in the parties' positions. {¶ 5} At trial, appellant received a jury verdict against appellee in the amount of $29,000, including $11,000 for economic damages and $18,000 for non-economic damages. The jury also concluded that appellant sustained no compensable injury in the accident caused by Booth. {¶ 6} Appellant filed two successive motions for prejudgment interest. In the first, he requested that the court grant him interest in accordance with R.C. 1343.03. In the second, amended motion, appellant asked that the court grant him prejudgment interest pursuant to R.C.1343.03(A) and/or (C). The trial court ruled that R.C. 1343.03(A) was the applicable provision, and that appellant was entitled to prejudgment interest from the date of the jury verdict until the date on which the judgment was satisfied. {¶ 7} Appellant then filed assorted motions regarding his award of prejudgment interest, asserting that the trial court erred in not taking into account a settlement offer of between $60,000 and $90,000 that he claims to have made the morning of trial. Appellant submitted an affidavit from his attorney, who claimed that he communicated the offer to the trial court judge. Appellee's motion in opposition argued that appellant's motions were not proper, and even if they were, appellant's alleged offer should not affect the court's decision to find that the claim for prejudgment interest became due and payable on the date of the jury's verdict. The trial court denied appellant's motions. {¶ 8} It is from this decision that appellant appeals and asks this court to consider the following assignments of error: {¶ 9} "1. Whether prejudgment interest should be awarded in accordance with R.C. 1343.03(A). {¶ 10} "2. Whether the court should consider bad faith when determining if prejudgment interest should be awarded pursuant to R.C. 1343.03(A). {¶ 11} "3. Under the peculiar facts of this litigation should prejudgment interest accrue from the date of the accident, the date of the filing of the litigation, the date of the judgment, or some other significant event." {¶ 12} Due to the interrelated nature of appellant's assignments of error, we will discuss them together. {¶ 13} Appellant argues that his award of prejudgment interest should begin to accrue from the date of the first accident. In support of this argument, appellant asserts that appellee acted in bad faith by refusing to engage in good faith settlement negotiations and by unnecessarily delaying trial. Appellant also claims that the trial court based its decision on incorrect information, in that it did not consider the offer appellant claims to have made in the $60,000 to $90,000 range. {¶ 14} The determination to award prejudgment interest rests within the trial court's sound discretion. Scioto Mem. Hosp. Assn., Inc.v. Price Waterhouse (1996), 74 Ohio St.3d 474, 479. The trial court's finding on this issue will not be reversed absent a clear abuse of discretion. Kalain v. Smith (1986), 25 Ohio St.3d 157, 159. The Ohio Supreme Court defines abuse of discretion as an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable.Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. {¶ 15} The Ohio Supreme Court has determined that claims arising out of an uninsured/underinsured policy of motorist insurance are contractual claims, and as such, R.C. 1343.03(A) is the applicable provision under which to award prejudgment interest. Landis v. GrangeMutual Insurance Co. (1998), 82 Ohio St.3d 339. {¶ 16} In Landis, the Supreme Court left discretion for determining prejudgment interest to trial courts in order to assure that the aggrieved party is made whole. Id. at 341-342. The Court was concerned with the injustice that occurs when an insurance company's denial of benefits contractually owed leads the parties through a lengthy judicial process. Id. {¶ 17} In interpreting Landis, this court has held that with regard to awarding prejudgment interest, the coverage owed in an uninsured motorist case becomes due and payable when it is determined by a court, arbitrator, or by agreement of the parties that such a loss is covered. Stacy v. Nationwide Mut. Ins. Co. (1998), 125 Ohio App.3d 658,673. {¶ 18} In this case, that determination occurred when the trial court entered judgment on the verdict. Therefore, we find no abuse of discretion on the part of the trial court in ruling that the verdict triggered accrual of appellant's prejudgment interest. Nor do we find any abuse of discretion in the trial court's use of R.C. 1343.03(A) in making its determination of prejudgment interest. {¶ 19} We note that "lack of a good faith effort to settle is not a predicate to an award of prejudgment interest pursuant to R.C.1343.03(A), as it is under R.C. 1343.03(C)." Landis, supra. Therefore, appellant's argument that appellee acted in bad faith becomes moot in light of the court's use of R.C. 1343.03(A). In addition, there was no evidence presented that appellee acted in bad faith. {¶ 20} Finally, we note that appellant did not provide this court with any transcripts of the proceedings as he is required to do under App.R. 9. Therefore, we were unable to review a transcript of the hearing on award of prejudgment interest. Consequently, with respect to appellant's allegations that the court did not properly consider evidence of his settlement offer, this court must presume the regularity of the proceedings below and hold that the trial court properly determined appellant's award of prejudgment interest. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. {¶ 21} For the foregoing reasons, appellant's assignments of error are found not well-taken. {¶ 22} On consideration whereof, the court finds that substantial justice has been done the party complaining, and the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal. JUDGMENT AFFIRMED. Handwork, P.J., and Sherck, J., concur.

2016-07-06 06:42:24.14236+00

OPINION {¶ 1} Appellant, George A. Dougherty, appeals the judgment entry of the Geauga County Court of Common Pleas denying his "Motion to Correct Improper Sentence." {¶ 2} On March 19, 2003, appellant was indicted on one count of Possession of Marijuana in violation of R.C. 2925.11(A)(C)(3)(f), a felony of the second degree. This charge carried with it a mandatory eight year term of incarceration. On May 12, 2003, appellant entered into a plea agreement wherein he pleaded guilty to a lesser included offense of Possession of Marijuana in violation of R.C. 2925.11(A)(C)(3)(e), a felony of the third degree. Pursuant to the agreement, appellant agreed to a three year period of incarceration and a $5,000 mandatory fine. {¶ 3} At the plea and sentencing hearing, the state read the plea agreement into the record. The trial court conducted its requisite plea colloquy and on May 12, 2003, sentenced appellant to a prison term of three years pursuant to the plea agreement. Appellant did not file a direct appeal on this judgment entry.1 On October 31, 2003, appellant filed a "motion to correct improper sentence." On November 5, 2003, the trial court overruled appellant's motion for failure to state sufficient grounds to warrant an evidentiary hearing. Appellant now appeals. {¶ 4} Appellant's sole assignment of error alleges: "[t]he trial court erred in denying appellant's pro se motion to correct improper sentence filed pursuant to R.C. 2953.21." {¶ 5} In his motion, and on appeal, appellant contends that he was misinformed regarding the nature of the sentence he was obligated to serve given the charge to which he pleaded. Specifically, appellant argues the trial court stated his three year prison term was "mandatory." Under the circumstances, appellant contends the three year sentence was not mandatory, but permissive. Appellant claims he based his plea upon this misinformation and therefore neither knowingly nor voluntarily pleaded to the count in question. {¶ 6} That said, appellant maintains his "motion to correct improper sentence" was made pursuant to R.C. 2953.21, Ohio's post-conviction relief statute, which requires a trial court to hold an evidentiary hearing where a petitioner asserts "substantive grounds for relief." R.C. 2953.21(C). Appellant submits his contentions are supported by the record and thus meet the requirements for an evidentiary hearing. Appellant also points out that the trial court erred in failing to issue findings of fact and conclusions of law when it denied his "petition." R.C. 2953.21(G). {¶ 7} In response, the state contends that while appellant styled his "motion to correct improper sentence" as a petition for post-conviction relief, it should be treated, under the circumstances, as a Crim.R. 32.1 motion to withdraw guilty plea. In support, the state directs our attention to State v. White, 7th Dist. No. 03 MA 168, 2004-Ohio-2809, a recent case decided by the Seventh Appellate District with analogous facts to the instant matter. {¶ 8} If we were to treat appellant's "motion to correct improper sentence" as a petition for post-conviction relief, he would be entitled to a remand based upon the trial court's failure to file findings of fact and conclusions of law. However, while appellant's "motion to correct improper sentence" was characterized as a petition for post-conviction relief, it failed to set forth a specific constitutional challenge to his conviction. R.C. 2953.21(A)(1)(a) provides, in relevant part: {¶ 9} "Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief." {¶ 10} To attack a plea on the basis that it was not entered into knowingly or voluntarily is an attack on the "non-constitutional" components of Crim.R. 11(C). See, e.g., State v. Scarnati, 11th Dist. No. 2001-P-0063, 2002-Ohio-711, 2002 Ohio App. LEXIS 776, at 9, (holding Crim.R. 11(C)(2)(a) and (b), those provisions designed to ensure a party's plea is "knowingly, intelligently, and voluntarily" entered, are non-constitutional and thus require only substantial compliance and not a rote recitation of language of the rule). See, also, State v. Nero (1990), 56 Ohio St.3d 106, 108, (holding, literal compliance with Crim.R. 11 is preferred but substantial compliance allows the court to infer from the totality of the circumstances that the defendant understood the charges against him.). {¶ 11} That is not to say the constitution would countenance a plea entered involuntarily or without full knowledge of the implications of a defendant's waiver. {¶ 12} "What is at stake for an accused facing * * * imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought * * * and forestalls the spin-off of collateral proceedings that seek to prove murky memories." (Internal citations omitted). Boykinv. Alabama (1969), 395 U.S. 238, 244. {¶ 13} Accordingly, to satisfy constitutional due process concerns, a guilty plea must involve an "intentional relinquishment or abandonment" of known rights or privileges. Johnson v. Zerbst (1938), 304 U.S. 458, 464. "[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." McCarthyv. United States (1969), 394 U.S. 459, 466. Such can be accomplished without specifically mimicking the lettered protocol of Crim.R. 11(C). {¶ 14} Here, appellant asserts a "due process" violation; however, the record does not support his contention that his constitutional rights were so violated as the plea hearing demonstrates the trial court substantially, if not literally, complied with the requirements of Crim.R. 11. As appellant's contentions fail to assert a constitutional error, they are outside the purview of post-conviction relief. Appellant's "motion to correct improper sentence" more closely resembles a Crim.R. 32.1 post-sentence motion to withdraw his guilty plea. Accordingly, we accept the state's invitation to apply the Seventh Appellate District's holding in White, supra, to the instant matter. {¶ 15} In White, the defendant pleaded guilty to aggravated assault, a felony of the fourth degree. White was eventually sentenced to the maximum eighteen months in prison. Two and one-half months subsequent to White's sentence he sought judicial release which the trial court denied. White then moved the trial court, pro se, to "vacate and/or correct his sentence." White set forth several bases for his motion, one of which was the trial court's failure to ensure his plea was entered knowingly and voluntarily. The trial court also denied this motion. On appeal, the state argued the motion should be treated as a petition for post-conviction relief.2 The Seventh District disagreed, in part because White's motion failed to state a valid post-conviction claim. The court held the arguments set forth in White's motion were "better suited to being argued in a motion to withdraw a guilty plea." Id. at ¶ 15. {¶ 16} Crim.R. 32.1 provides that a court may grant a party's post-sentence motion to withdraw a guilty plea only to correct a manifest injustice. State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, ¶ 8. "A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court." State v. Smith (1977), 49 Ohio St.2d 261, paragraph two of the syllabus. In our view, the trial court did not abuse its discretion in overruling appellant's motion. {¶ 17} Appellant was indicted on an offense carrying a mandatory eight year prison term. Upon accepting the state's plea offer, appellant agreed to a sentence of three years: Five years below the mandatory penalty set forth by the statute upon which he was indicted. The court ensured appellant understood the nature of this agreement. {¶ 18} Specifically, during the plea hearing, the prosecutor read the terms of the plea agreement into the record; to wit: {¶ 19} "[The Prosecutor:] Again pursuant to that agreement the defendant will be entering a plea of guilty to a lesser included offense of the crime as charged, specifically, a violation of Revised Code Section 2925.11(A)(C)(3)(e), that being possession of marijuana, a felony of the third degree. The state of Ohio and the defendant agree to the following sentencing recommendation: {¶ 20} "The defendant will be incarcerated in a state penal institution for a period of three years and will pay a $5,000 mandatory fine. {¶ 21} "* * * {¶ 22} "The Court: Mr. Dougherty, Do you understand the plea agreement? {¶ 23} "The Defendant: Yes, sir, I do. {¶ 24} The court then engaged appellant in a colloquy to make certain he knew the nature and consequences of his plea. The court inquired into (1) whether appellant understood that he was admitting to committing the crime of possession of marijuana, a felony of the third degree; (2) whether he understood he was giving up all defenses to the charge; (3) whether he had any threats or promises made in exchange for a plea of guilty; (4) whether he was under the influence of drugs or alcohol; (5) whether he has been found to be mentally ill; and (6) the applicability of community control sanctions. {¶ 25} Moreover, the court fully explained that, in accepting the plea, appellant would be waiving: (1) the Fifth Amendment privilege against self incrimination, (2) the right to a jury trial, (3) the right to confront accusers, (4) the right to compulsory process of witnesses, and (5) the right to be proven guilty beyond a reasonable doubt. {¶ 26} The court eventually queried: {¶ 27} "The Court: In regards to the plea agreement I will be sentencing you to three years in prison; that's a mandatory three years. There is no application to get out early. You understand that? {¶ 28} "The Defendant: Yes, sir. {¶ 29} "The Court: You also understand there is a mandatory fine of $5,000? {¶ 30} "The Defendant: Yes, sir." {¶ 31} In the context of the entire dialogue, appellant acceded to the conditions of the plea agreement which involved a three year term of incarceration and a $5,000 fine. These conditions were spelled out in the agreement and, to the extent appellant was agreeing to these terms, he was bound by them, i.e. the conditions of the agreement were mandatory and thus reflected the actual term of incarceration appellant would serve. The judge's comment regarding the "mandatory" nature of the prison sentence was not a misstatement of the law; rather, it was an attempt to ensure appellant was aware that the terms he was agreeing to required a three year term of incarceration without the privilege of judicial release or the like. In other words, the judge was clarifying that, by the terms of his agreement, appellant would be serving no less than three years in prison. This statement, placed in the proper context, illustrates a fidelity rather than an affront to the spirit of Crim.R. 11(C). {¶ 32} As there was no manifest injustice, the trial court did not act arbitrarily or unreasonably in overruling appellant's Crim.R. 32.1 post-sentence motion to withdraw his guilty plea. Appellant's sole assignment of error is overruled. {¶ 33} For the above reasons, the judgment entry of the Geauga County Court of Common Pleas is hereby affirmed. Ford, P.J., Grendell, J., concur. 1 R.C. 2953.08 sets forth grounds for appeal by a defendant or prosecutor of a felony sentence. Pursuant to R.C. 2953.08(D), "[a] sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge. * * *" Here, appellant and the prosecution agreed jointly to appellant's sentence. As such, his sentence was not reviewable on appeal. 2 In White, if the court treated the appellant's motion as a petition for post conviction relief, it could have been denied without examination as untimely.

2016-07-06 06:42:24.178224+00

DECISION Jermaine L. Reese stands convicted of aggravated robbery1 and an accompanying firearm specification.2 The convictions came after a bench trial and were primarily based on the testimony of Alexander Solomon, the victim and sole witness. We affirm. Solomon testified that he was alone at a bus stop when two men approached him. One was Reese, whom Solomon knew, and the other was a man whom Solomon only knew as "Mike." Solomon testified that he initially spoke with Reese and gave Reese a Bidi cigar. Solomon stated that while he and Reese were talking, Mike interrupted, asked him what he had in his pockets, pointed a gun at him, and patted his pockets. Solomon explained that while this was going on, Reese was standing near the curb and looking up and down the street. According to Solomon, Reese stated to him, "Bidi's will kill you." Solomon testified that Mike then took a pack of Bidi cigars from him and told him to run away or that he would be shot. Solomon then ran away and reported the crime. Later, according to Reese's arresting police officer, Reese was found hiding in the attic of his mother's house. (Mike apparently was not caught, and this appeal does not involve him.) In Reese's sole assignment of error, he asserts that his convictions were based on insufficient evidence and against the manifest weight of the evidence. We disagree. It is clear that an aggravated robbery occurred, and we hold that there was evidence to conclude that Reese was an accomplice to the crime. Accomplices to a crime may be punished as if they were the principal offenders.3 The complicity statute provides that "[n]o person, acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense[.]"4 To aid and abet, one must assist, incite, or encourage a crime. Aiding and abetting may be demonstrated by direct or circumstantial evidence and can be inferred from conduct before and after the offense is committed. It can also be established by overt acts of assistance such as serving as a lookout.5 Here, Reese denied that he participated with Mike in the crime. But, based on Solomon's testimony, the court could — and did — conclude beyond a reasonable doubt that Reese was an accomplice. Solomon's testimony that Reese looked up and down the street during the robbery, as well as Solomon's testimony that Mike and Reese initially approached him together, provided a sufficient basis to conclude that Reese acted as a lookout — an aider and abettor. Further, Solomon's testimony that Reese made the rather suspect comment during the robbery that "Bidi's will kill you," and the arresting officer's testimony that Reese was found hiding after the crime, cast doubt on Reese's credibility. We hold that the court did not err in choosing to believe Solomon's version of events, as opposed to Reese's denial of his involvement in the crime. Regarding the firearm specification, Reese argues that there was insufficient evidence that the gun held by Mike, which was not recovered by the police, was operable. But the Ohio Supreme Court has held that a firearm specification can be proven beyond a reasonable doubt by direct or circumstantial evidence. That evidence may consist of the testimony of lay witnesses who were in a position to observe the instrument and circumstances of the crime. Operability or potential operability may be proven where an individual brandishes a gun and implicitly threatens to discharge it at the time of the offense.6 Here, Solomon testified that Mike pointed a gun at him while Mike patted his pockets. In light of this testimony, and in light of Solomon's testimony that Mike threatened to shoot him if he did not run away, we hold that there was sufficient evidence that the gun was operable. Finally, we note that Reese argues that his convictions should be reversed because he was charged with aggravated robbery in terms of the principal offense, not as an accomplice, and because the trial court never actually stated in its findings that Reese was an accomplice. We reject Reese's argument, because the complicity statute provides, "Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense."7 Based on this language, Reese was on notice that evidence could be presented that he was either a principal offender or an aider and abettor. The fact that he was not specifically charged as an accomplice and that the court did not specifically find him to be an accomplice does not affect the validity of his convictions. The judgment of the trial court is, accordingly, affirmed. Judgment affirmed. ________________________________ PAINTER, Judge. HILDEBRANDT, P.J., and WINKLER, J., concur. 1 R.C. 2911.01(A)(1). 2 R.C. 2941.145. 3 See State v. Griffin (Dec. 11, 1998), Hamilton App. No. C-980143, unreported. 4 R.C. 2923.03(A)(2). 5 See Griffin, supra. 6 See State v. Thompkins (1997), 78 Ohio St.3d 380,678 N.E.2d 541; see, also, Griffin, supra; R.C. 2923.11(B)(2). 7 R.C. 2923.03(F).

2016-07-06 06:42:25.29601+00

OPINION STATEMENT OF THE FACTS AND CASE This is an appeal from a trial court decision denying Appellant's Motion for Summary judgment and holding that Appellant was not entitled to UM/UIM coverage under Appellant's wife's employer's liability insurance policy issued by Appellee. The undisputed facts are as follows: The collision from which this case arises occurred on October 26, 1999. Appellant, Larry Mayfield, was a passenger in an automobile driven by his wife, Elizabeth Mayfield, which was involved in a single car accident in North Canton, Ohio. As a result of said accident, Appellant sustained serious injuries. At the time of the accident, Mrs. Mayfield was an employee of Gabrielle Brothers department store. Mrs. Mayfield was not acting within the scope of employment at the time of the accident. The Mayfields were residents of the State of Ohio. Gabrielle Brothers is a West Virginia Corporation, with its principal place of business in Morgantown, West Virginia. Appellant exhausted the $50,000.00 liability limits of his wife's personal automobile policy, with the consent of Appellee, Federal Insurance Company (improperly identified as Chubb Insurance Company). Appellant then sought underinsured motorist coverage from Federal Insurance Company which was the liability carrier for Gabrielle Brothers, his wife's employer. Appellee denied coverage, and Appellant filed a declaratory judgment action in the Stark County Common Pleas Court. Appellee, Federal Insurance Company filed a Motion for Summary Judgment with Appellant responding with his own motion for summary judgment on the issues of coverage and bad faith. The trial court overruled Appellant's motion for summary judgment and granted Appellee's motion, denying UM/UIM coverage to Appellant. Appellant appeals said decision, assigning the following assignments of error: ASSIGNMENTS OF ERROR I. THE TRIAL COURT ERRED IN ITS RULING THAT OHIO LAW DID NOT APPLY. II. THE TRIAL COURT ERRED IN ITS RULING THAT PLAINTIFF WOULD NOT BE ENTITLED TO UNINSURED/UNDERINSURED MOTORIST BENEFITS UNDER WEST VIRGINIA LAW. III. THE TRIAL COURT ERRED IN FAILING TO RULE THAT THE DEFENDANT HAD ACTED IN BAD FAITH IN DENYING COVERAGE TO THE PLAINTIFF. SUMMARY JUDGMENT MOTIONS Summary judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio inState ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St. 3d 447, 448: Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St. 3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274. As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party,Inc. (1987), 30 Ohio St. 3d 35 I. Appellant argues that the trial court erred in finding that Ohio Law did not apply in the present case. We disagree. Appellant asks this court to hold that when an insured under an automobile insurance policy issued in another state is injured in an automobile accident in Ohio, coverage under the uninsured/underinsured motorist provisions of the policy is determined by the law of the state in which the injury occurred. For the following reasons, we decline to adopt this proposition. In the case sub judice, Appellant has recovered the limits of the tortfeasor's liability policy, in this case his wife's personal automobile policy. Having so done, the substantive question of damages recoverable form the tortfeasor is no longer an issue. The declaratory judgment action for UM/UIM coverage therefore is an action sounding in contract and not tort. In Ohayon v. Safeco Ins. Co. of Illinois (2001), 91 Ohio St. 3d 474, the Ohio Supreme Court held: 1. An action by an insured against his or her insurance carrier for payment of underinsured motorist benefits is a cause of action sounding in contract, rather than tort, even though it is tortious conduct that triggers applicable contractual provisions. Landis v. Grange Mut. Ins. Co. [1998], 82 Ohio St. 3d 339, 341, 695 N.E.2d 1140, 1141, followed.) Id. at paragraph one of the syllabus. 2. Questions involving the nature and extent of the parties' rights and duties under an insurance contract's underinsured motorist provisions shall be determined by the law of the state selected by applying the rules in Sections 187 and 188 of the Restatement of the Law 2d, Conflict of Laws (1971). (1 Restatement of the Law 2d, Conflict of Laws [1971], Section 205, applied. Id. at paragraph two of the syllabus. The Ohio Supreme Court then stated that absent an express choice of law provision, the court should consider the factors set forth in Restatement (Second) of Conflict of Laws, Section 188, the contract choice of law factors, to make a determination with respect to which state's law applies. The court should determine which state has "the most significant relationship to the transaction and the parties." Id. at 477. To assist in this determination, the court should consider "the place of contracting, the place of negotiation, the place of performance, the location of the subject matter, and the domicile, residence, nationality, place of incorporation, and place of business of the parties." Id. The court further found that coverage issues, like other contract issues, should be determined "`by the local law of the state which the parties understood was to be the principal location of the insured riskduring the term of the policy, unless with respect to the particular issue, some other state has a more significant relationship * * * to the transaction and the parties.'" (Emphasis sic.) Id., at 479, quoting Restatement of Conflicts, Section 193 at 610. "`[I]n the case of an automobile liability policy, the parties will usually know beforehand where the automobile will be garaged at least during most of the period in question.'" Ohayon, supra, at 479-480 quoting Restatement of Conflicts at 611, Comment b. Here, the application of the Restatement factors supports the application of West Virginia law. The contract was entered into between Federal Insurance Company and Gabrielle Brothers, a West Virginia corporation with its principal place of business in Morgantown, West Virginia. The policy was negotiated, made and issued and delivered in West Virginia through an agent of Federal whose office was located in Morgantown, West Virginia. Based on the Schedule of Covered Autos You Own section of the policy, all but two of the thirty-one listed vehicles were garaged in Morgantown, West Virginia, with the remaining two garaged in Pennsylvania and were insured under a Pennsylvania endorsement. There is no evidence that appellee ever contemplated that any vehicle would be garaged in Ohio. Accordingly, West Virginia law should apply to the determination of UIM benefits. We find Appellant's first Assignment of Error not well-taken and overrule same. II. Appellant argues that the trial erred in finding that under West Virginia law, he is not entitled to UM/UIM benefits. We disagree. The language contained in the insurance policy sub judice, contains language identical to that in the case of Scott-Pontzer v. Liberty Mut.Fire Ins. Co. (1999), 85 Ohio St. 3d 660. The named insured is Gabrielle Brothers, Inc. The uninsured motorist coverage page defines "Who Is An Insured" as follows: 1. You 2. If you are an individual, any family member. 3. Anyone else occupying a covered auto or a temporary substitute for a covered auto. The covered auto must be out of service because of its breakdown, repair, servicing, loss or destruction. 4. Anyone for damages he or she is entitled to recover because of bodily injured sustained by another insured. In Scott-Pontzer, supra, the Ohio Supreme Court found a corporation's employees to be insureds and therefore entitled to underinsured motorist coverage under a commercial automobile liability policy which designated the corporation as the named insured and which defined "insured" to include "you" and "[i]f you are an individual, any family member."Scott-Pontzer at 665. The Court concluded that it would be meaningless to limit protection solely to a corporate entity which cannot occupy or operate a motor vehicle or suffer bodily injury or death. Id. at 664. However, the West Virginia Supreme Court, while having never addressed the identical issues presented in Scott-Pontzer, has on at least two occasions refused to hold that the word "you", in reference to a corporation or governmental entity, included employees as insureds. SeeAdkins v. Meador (W.Va. 1997), 494 S.E.2d 915 and Trent v. Cook (W.Va. 1996), 482 S.E.2d 218. In Adkins, the West Virginia Supreme Court held that an employee of Champagne-Webber, who was injured on the job, was not entitled to UM/UIM coverage, stating: Mr. Adkins is not a "you" under the policy because he is not Champagne-Webber; is not a family member of Champagne-Webber, . . . Similarly, in Trent, the West Virginia. Supreme Court held that a governmental employee was not an insured entitled to UM/UIM coverage because "Appellee clearly was not an insured under the express policy terms. . .". West Virginia has not adopted the holding ofScott-Pontzer. Thus, under West Virginia law, appellant is not entitled to UIM benefits Furthermore, under West Virginia law the employee must occupy the employer's vehicle at the time of the accident to be entitled to recover UIM benefits. Younger v. Reliance Ins. Co. (Tenn.App. 1993),884 S.W.2d 453. We also agree with Appellee that R.C. § 3937.18 would not apply to the instant policy regardless. The plain language of R.C. §3937.18(A) requires the insurer to offer underinsured coverage at the time of contracting. Moore v. State Auto. Mut. Ins. Co. (2000),88 Ohio St. 3d 27, 29. Before this mandatory offering law applies, the car to be covered must be registered or principally garaged in Ohio when the policy is being delivered or issued. Gabrielle Brothers did not have any covered autos principally garaged in Ohio. Appellant's Second Assignment of Error is denied. III. Appellant argues that the trial court erred in not finding that the Appellee acted in bad faith when it denied coverage to Appellant. Appellee argues that the trial court never considered the issue of bad faith and that the issue is premature for review. It appears from the trial court's entry, wherein it stated "[i]n light of the foregoing, the motion for summary judgment of the Defendant, Federal Insurance Company is herein GRANTED in all respects. The Plaintiff's motion for summary judgment is herein OVERRULED", that the court did consider and rule upon the issue of bad faith, granting us jurisdiction to review same. Regardless, based upon our disposition of Assignments of Error One and Two, we find this assignment to be moot. For the foregoing reasons, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to appellant. By Boggins, J., Hoffman, P.J. and Wise, J. concur.

2016-07-06 06:42:24.788767+00

OPINION In 1993, Olin Hunt Specialty Products, Inc. ("Olin Hunt"), the manufacturer of a product known as "BlackHole,"1 filed a breach of contract action in the Hamilton County Court of Common Pleas against one of its "BlackHole" distributors, Thortek, Inc. ("Thortek"). The parties resolved the litigation through a consent judgment entered on June 21, 1993, which provided that Thortek was to pay Olin Hunt $198,227.73 plus interest.2 In 1995, Metalgraphics, Inc. ("Metalgraphics") filed a products liability action against both Olin Hunt and Thortek, who in turn filed cross-claims against one another. American Motorists Insurance Company ("AMI"), Thortek's insurer, defended Thortek in the action. In April 1998, both Olin Hunt and Thortek settled with Metalgraphics without resolving their cross-claims. To effect the settlement, Olin Hunt agreed to pay Metalgraphics $190,000, and AMI, as Thortek's insurer, agreed to pay Metalgraphics $100,000. In December 1998, AMI filed a complaint seeking to recover from Olin Hunt the $100,000 it paid in settlement to Metalgraphics, as well as $75,000 in attorney fees and costs expended by AMI in defending the Metalgraphics lawsuit. Olin Hunt filed an answer, wherein it included an affirmative defense that the 1993 consent judgment served as a total setoff to AMI's claims as subrogee of Thortek. Olin Hunt also asserted a counterclaim seeking indemnification from AMI for the $190,000 it paid Metalgraphics, as well as interest, attorney fees and costs. In its answer to Olin Hunt's counterclaim, AMI alleged that the consent judgment was void as to AMI's claim against Olin Hunt because Thortek, its insured, failed to provide AMI timely notice of the Hamilton County lawsuit, thereby prejudicing AMI. AMI further claimed that because Olin Hunt failed to enforce the consent decree, Olin Hunt had waived the right to do so in a subsequent action. Finally, AMI asserted that Olin Hunt was barred from bringing an action against AMI for claims Olin Hunt had against Thortek which had not been reduced to judgment. Olin Hunt filed a motion for summary judgment on September 9, 1999, wherein it reiterated its position that it was entitled to enforce the consent judgment against AMI as Thortek's subrogee. As such, Olin Hunt argued that since the value of the consent judgment exceeded the value of the damages sought by AMI, AMI had no cognizable claim for damages. AMI filed a memorandum contra Olin Hunt's motion for summary judgment in which it argued that it was not subject to Olin Hunt's setoff claim because: (1) the "business debt" Thortek owed Olin Hunt could not be used to offset an indemnity claim; and (2) AMI had no notice of, nor did it not agree to, the June 1993 consent judgment. The trial court granted Olin Hunt's motion for summary judgment on September 20, 2000, finding that the 1993 consent judgment between Olin Hunt and Thortek was valid and enforceable and that Olin Hunt was entitled to judgment as a matter of law because the setoff defense based upon the consent judgment was applicable to AMI as Thortek's subrogee. The trial court filed a judgment entry on October 23, 2000, consistent with its decision. AMI has timely appealed the trial court's judgment and advances a single assignment of error, as follows: The trial court erred in granting Olin Hunt's motion for summary judgment for the reason that Olin Hunt could not have plead or proved the Hamilton County Common Pleas consent judgment as a defense in the Metalgraphics case and, therefore, cannot now plead or prove such judgment as an [sic] set-off against American in this case. By its assignment of error, AMI contends that the trial court erred in granting summary judgment in favor of Olin Hunt. In order to obtain summary judgment, the moving party must establish that: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion when viewing the evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102,105. A reviewing court has complete and independent power of review as to all questions of law. Id. In the case before us, there are no questions of fact to be resolved. The sole issue for determination is whether the consent judgment can, as a matter of law, be asserted by Olin Hunt as a setoff defense to AMI's contribution/indemnity claim. As such, the determination of whether the trial court properly granted summary judgment involves only questions of law which are considered by this court de novo. Id. Preliminarily, we note that a review of the record indicates that AMI never raised, either in its answer to Olin Hunt's counterclaim or in its memorandum contra Olin Hunt's motion for summary judgment, the precise issue it now raises on appeal; i.e., that Olin Hunt could not have asserted the consent judgment as a defense against either Thortek (in the Metalgraphics case) or AMI (in the instant case) because the consent judgment did not arise from the same transaction or facts giving rise to those lawsuits. Accordingly, the trial court had no opportunity to address or rule upon that issue. It is well-settled that a party may not raise issues on appeal that should have been raised in response to a motion for summary judgment. Thompson v. Ghee (2000), 139 Ohio App.3d 195,199; Haas v. Indus. Comm. of Ohio (Dec. 21, 1999), Franklin App. No. 99AP-475, unreported. As such, AMI's argument should be deemed waived for appellate purposes. Thompson, supra. However, in the interests of justice, we will address the argument raised in AMI's brief. AMI's argument is premised on the defense of recoupment. In particular, AMI relies on the Ohio Supreme Court's decision in Riley v. Montgomery (1984), 11 Ohio St.3d 75, wherein the court noted that recoupment is a defense which arises out of the same transaction as the plaintiff's claim and entitles the defendant to reduce the amount demanded, but only to the extent sufficient to satisfy the plaintiff's claim. Id. at 77. Recoupment is available only when it is offered to reduce the plaintiff's right to relief, such as where the defendant has been so damaged in the transaction that the plaintiff should not be entitled to recover. Id. at 77-78. As noted previously, AMI argues that Olin Hunt could not have asserted the consent judgment as a recoupment defense against either Thortek (in the Metalgraphics case) or AMI (in the instant case) because the consent judgment did not arise out of the same transaction or facts giving rise to those lawsuits. While AMI's contention is technically correct, it is irrelevant to the instant action, as Olin Hunt asserted the consent judgment as a setoff defense, rather than a recoupment defense. Thus, Riley is inapposite. The defense of setoff is in the nature of an "independent affirmative action." Akron Nat'l Bank Trust Co. v. Roundtree (1978),60 Ohio App.2d 13, 17. In contrast to a recoupment, a setoff is "a demand asserted to diminish or extinguish a plaintiff's demand, which arises out of a transaction different from that sued on, and which must be liquidated and emerge from a contract or judgment." Continental Acceptance Corp. v. Rivera (1976), 50 Ohio App.2d 338, 344, fn. 17, quoting 3 Moore's Federal Practice, Para. 13.02, note 1 (1978). In the instant case, Olin Hunt asserted its right of setoff, relying on the consent judgment enforceable against Thortek and arising out of a different transaction than that raised in the instant case, to extinguish AMI'S claims (as Thortek's subrogee) against Olin Hunt. In its lawsuit, Metalgraphics sued both Olin Hunt and Thortek, and the settlement payments were made on behalf of both entities. AMI paid Thortek's portion of the settlement pursuant to its contract of insurance with Thortek. The contribution and/or indemnity claim currently pending originally belonged to Thortek as the named defendant in the Metalgraphics case. As Thortek's insurer, AMI subrogated Thortek's claims and stepped into Thortek's shoes for purposes of pursuing Thortek's contribution/indemnity claims against Olin Hunt. See American Ins. Group v. McCowin (1966), 7 Ohio App.2d 62, 65 (subrogation is "[t]he substitution of one person in the place of another with reference to a lawful claim, demand, or right.") It is well-established that "a subrogated insurer has no greater rights than those of its insured." In addition, "[a] subrogee cannot accede to a right not possessed by the subrogor." See Ohio Mut. Ins. Assoc., United Ohio Ins. Co. v. Warlaumont (1997), 124 Ohio App.3d 473, 475; Nationwide Mut. Fire Ins. Co. v. Sonitrol, Inc. of Cleveland (1996),109 Ohio App.3d 474, 482-483. Since AMI's claim, arising through subrogation, can rise no higher than that of Thortek, any defense which could be asserted by Olin Hunt in an action brought by Thortek may also be asserted against AMI. See Ohio Cas. Ins. Co. v. Ford Motor Co. (S.D.Ohio 1977), 443 F. Supp. 80, 83. In the instant action, Olin Hunt asserted a valid and enforceable consent judgment as a defense to AMI's subrogated contribution/indemnity claim. Generally, a consent judgment operates as res judicata to the same extent as a judgment on the merits entered in a fully adversarial proceeding. S. Ohio Coal Co. v. Kidney (1995), 100 Ohio App.3d 661, 668; Packer, Thomas Co. v. Eyster (1998), 126 Ohio App.3d 109, 118. AMI characterizes the consent judgment as a "business debt," which cannot be used as a setoff. However, AMI mischaracterizes the consent judgment as a mere "business debt." Olin Hunt and Thortek entered into the consent judgment as a means of settling litigation on the contract issues between them. Even though the consent judgment represents an agreement between Olin Hunt and Thortek, the effect of the judgment is the same as if the issues had been litigated and is just as enforceable as any other validly entered judgment. Id. For the foregoing reasons, we agree with the trial court's determination that no genuine issues of material fact exist, that reasonable minds can come to but one conclusion adverse to AMI, and that Olin Hunt is entitled to judgment as a matter of law, as the consent judgment is valid and enforceable and was properly asserted by Olin Hunt as a setoff defense against AMI as Thortek's subrogee. For the foregoing reasons, AMI's assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed. DESHLER and BROWN, JJ., concur. 1 "BlackHole" is used in the production of electronic devices. 2 The judgment became dormant and was subsequently revived in November 1998 pursuant to R.C. 2325.15.

2016-07-06 06:42:25.035207+00

OPINION {¶ 1} Appellant, Harold A. Jones, appeals from the Ashtabula County Court of Common Pleas' denial of his motion to suppress evidence. Appellant was convicted of one count of possession of crack cocaine. {¶ 2} On July 25, 2000, appellant was arrested for driving under the influence and possession of drug paraphernalia. He was issued a ticket for "Trafficking in drugs — Moving Violation," in violation of R.C. 2925.11(A). Subsequently, appellant was indicted for possession of crack cocaine, in violation of R.C. 2925.11(A) and (C)(4)(a), a felony of the fifth degree. {¶ 3} On January 19, 2001, appellant filed a motion to suppress all the evidence obtained as the result of his arrest. In his motion, appellant argued that the police did not have an articulable and reasonable suspicion that he was committing criminal activity justifying the traffic stop, and that there was no probable cause to arrest. {¶ 4} A hearing was held on appellant's motion to suppress. Trooper Frank Clayman ("Trooper Clayman") of the Ohio State Patrol attested that, at approximately 2:55 a.m., on July 25, 2000, he initiated a traffic stop of a gold-colored Honda driven by appellant after he observed the vehicle turn without using a turn signal. Because appellant did not immediately pull over, Trooper Clayman radioed for assistance. Tooper Daniel Keller ("Trooper Keller") responded to the call. {¶ 5} Once the vehicle pulled over, Trooper Clayman approached the driver, told him the reason for the stop, and asked for identification. Trooper Clayman stated that appellant "appeared pretty nervous" and "his words were being slurred." {¶ 6} Trooper Clayman then proceeded to walk over to the female passenger, who had exited the car and begun walking away. From that point on, Trooper Keller spoke with appellant. {¶ 7} Trooper Keller attested that he assisted Trooper Clayman with a traffic stop, on July 25, 2000, at approximately 2:55 a.m. Trooper Keller confirmed that he spoke with appellant after Officer Clayman went to speak with the female passenger. At that time, appellant was standing between his car and Trooper Clayman's cruiser. As he spoke with appellant, Trooper Keller noticed that appellant "had some indications that he could possibly be under the influence of some form of narcotic." The trooper explained that "[t]he indications were that his pupils appeared to be fixed even with the strobes flashing, and he seemed to have a twitch. Didn't [sic] seem like a nervous twitch. It seemed like possibly a need for a controlled substance twitch." Trooper Keller testified that he had additional training in "drug interdictions." He explained that "when an individual licks their lips a lot and basically runs their tongue over their lips, it's an indicator that there's a possibility that they were smoking a crack pipe because the crack pipe heats up and they get those fever blisters on their tongue." {¶ 8} Trooper Keller testified that before he administered the horizontal gaze nystagmus ("HGN") test, he shined his flashlight in the open driver's side door and observed a crack pipe in the door. Based on his experience in dealing with people that are under the influence of narcotics and his observation of the crack pipe, Trooper Keller concluded that appellant was under the influence of some type of narcotic. {¶ 9} After seizing the crack pipe, Trooper Keller asked appellant to perform the HGN test to determine if appellant was under the influence of alcohol or drugs. After conducting the test, the trooper concluded that appellant was under the influence of an illegal narcotic, not alcohol. Appellant was placed under arrest. While conducting a search incident to arrest, Trooper Keller found small white rocks, which were later identified as crack cocaine, in appellant's right pocket. {¶ 10} After the hearing on appellant's motion to suppress, the court denied the motion. Subsequently, the case was tried to a jury and appellant was convicted of one count of possession of crack cocaine. The trial court sentenced appellant to two years of community control and suspended his driver's license for six months. {¶ 11} From this judgment and sentence, appellant raises the following assignment of error: {¶ 12} "The trial court erred in overruling the defendant-appellant's motion to suppress evidence obtained as a result of his arrest for driving under the influence." {¶ 13} In appellant's sole assignment of error, he argues that the police lacked probable cause to arrest him for driving under the influence of narcotics. Specifically, appellant asserts that the record is devoid of any evidence that his driving was actually impaired. In support of his argument, appellant cites to State v. Maxwell (Aug. 31, 2001), 11th Dist. No. 99-L-042, 2001 WL 1078257, at *3-4, wherein this court approved the following jury instruction regarding the definition of under the influence: {¶ 14} "Under the influence means that a defendant had within his body a drug of abuse, whether mild or potent, in such a quantity, whether small or great, that it adversely affected and appreciably impaired the Defendant's actions, reactions or mental processes under the circumstances then existing and deprived him of that clearness of intellect and control of himself that he would otherwise have possessed. The question is not how much a drug of abuse would affect an ordinary person. The question is what effect did any drug of abuse consumed by the Defendant have on him at the time and place involved. If the ingestion of a drug of abuse so affected the nervous system, brain, or muscles of the Defendant so as to impair, to an appreciable degree, his ability to operate the vehicle, then the Defendant was under the influence. Appreciable means noticeable or perceptible." {¶ 15} Because the foregoing jury instruction sets forth the standard to convict an offender for driving under the influence, rather than the standard for stopping and/or arresting an offender, we conclude that the jury instruction is not determinative of this appeal. Instead, the proper inquiry is whether the evidence presented at the suppression hearing reveals that the police had an articulable and reasonable suspicion or probable cause, justifying the stop and whether the arresting officer had probable cause to believe that appellant was driving under the influence. {¶ 16} At a hearing on a motion to suppress, the trial court assumes the role of the trier of facts and, therefore, is in the best position to resolve questions of fact and evaluate the credibility of witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366. When reviewing a motion to suppress, an appellate court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Guysinger (1993), 86 Ohio App.3d 592, 594. Accepting these findings of facts as true, a reviewing court must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the appropriate legal standard. State v.Curry (1994), 95 Ohio App.3d 93, 96. {¶ 17} "When a police officer stops an automobile on the basis of a routine traffic violation, there only needs to be a reasonable suspicion that the violation has occurred in order that the stop be permissible under the Fourth Amendment." State v. Yemma (Aug. 9, 1996), 11th Dist. No. 95-P-0156, 1996 Ohio App. LEXIS 3361, at *6. A minor violation of a traffic regulation, such as changing lanes without giving a proper signal, that is witnessed by a police officer, standing alone, is sufficient justification to warrant a limited stop for the issuance of a citation. Id. {¶ 18} In the instant case, appellant violated R.C. 4511.39 when he made a left turn without first giving the proper signal. As noted above, this traffic violation justified Trooper Clayman's stop for the limited purpose of issuing a citation. {¶ 19} Once an officer has stopped a vehicle for a minor traffic offense and begins the process of obtaining the offender's license and registration, the officer may proceed to investigate the detainee for driving under the influence if there exists reasonable suspicion that the detainee may be driving under the influence based on specific and articulable facts. See e.g., Yamma, at * 6-8. When determining whether an officer had probable cause to make an arrest, a reviewing court must consider whether, at the moment the arrest was made, the police had reasonably trustworthy information, sufficient to warrant a prudent man in believing that the suspect was driving under the influence. See Beckv. Ohio (1964), 379 U.S. 89, 91. This determination is based upon the totality of facts and circumstances surrounding the arrest. Id. {¶ 20} After properly stopping appellant for a minor traffic violation, Trooper Clayman noticed appellant "appeared pretty nervous" and that his words were slurred. In addition, Trooper Keller concluded that appellant was under the influence of narcotics based on his experience, his observation of narcotic use indicators, his observation of the crack pipe, and appellant's HGN test results. Based on the totality of the circumstances, we conclude that Trooper Keller had reasonably trustworthy information, sufficient to warrant a prudent man in believing that appellant was under the influence. {¶ 21} In summation, Patrolman Clayman had probable cause that appellant had committed a criminal act when he observed appellant turn left without using a proper signal. After properly stopping appellant, Trooper Keller observed indications of narcotic use, a crack pipe, and noted that appellant's HGN test results indicated narcotics use. Accordingly, Trooper Keller had probable cause to arrest appellant for driving under the influence and possession of drug paraphernalia. Although a finding of actual impairment may be a requirement for a conviction of driving under the influence, it is not dispositive of the issue of whether an arresting officer has probable cause to arrest an individual for driving under the influence. {¶ 22} In light of the foregoing, appellant's sole assignment of error is without merit. The judgment of the trial court is affirmed. WILLIAM M. O'NEILL, P.J., DONALD R. FORD, J., concur.

2016-07-06 06:42:25.07231+00

OPINION {¶ 1} On April 24, 1995, Adara Leigh Perez and Adena Gabrielle Perez, twin girls, were born to Jay Perez ("appellant") and Jeannine Perez ("appellee"). When the parties divorced, appellee was named the residential parent. After the divorce, appellee filed a name change to return to her maiden surname of Mistovich. Both parties agreed that the minor girls would use the Perez surname. Appellee wished to hyphenate the girls' surname to include her family's surname of Mistovich. Therefore, the girls' surname would be Mistovich-Perez. {¶ 2} On February 7, 2003, appellee filed an application for change of name for the minor girls. Appellee maintained that by not having the surname Mistovich included, the minor girls would not be able to identify with appellee's side of the family. Appellee wanted the minor girls to be able to identify with both the Perez and Mistovich family. A hearing on the application was set for March 20, 2003. {¶ 3} Appellant maintained that by hyphenating the girls' name, Perez would ultimately be dropped and the girls will be known only as Mistovich. Appellant attempted to introduce, as a witness, an individual with a hyphenated name, to testify as to her experience of living with a hyphenated name. {¶ 4} Appellee is required to show that there is a reasonable and proper cause for changing the minor girls' surname. R.C.2717.01(A). Furthermore, the trial court must also consider the best interest of the children in determining whether reasonable and proper cause has been established. In re Willhite (1999),85 Ohio St.3d 28, paragraph one of the syllabus. When determining the best interest of the child, the trial court should consider the following eight factors: * * * [T]he effect of the change on the preservation and development of the child's relationship with each parent; the identification of the child as part of a family unit; the length of time that the child has used a surname; the preference of the child if the child is of sufficient maturity to express a meaningful preference; whether the child's surname is different from the surname of the child's residential parent; the embarrassment, discomfort, or inconvenience that may result when a child bears a surname different from the residential parent's; parental failure to maintain contact with and support of the child; and any other factor relevant to the child's best interest. Id. at paragraph two of the syllabus, citing Bobo v. Jewell (1988), 38 Ohio St.3d 330, paragraph two of the syllabus; In reChange of Name of Andrews (1990), 235 Neb. 170, 177,454 N.W.2d 488, 492. {¶ 5} The magistrate noted that the name change would serve to identify the family unit and to distinguish the minor girls from appellant's other two children from a subsequent relationship. Over appellant's objection, the magistrate questioned the minor girls. The minor girls stated that they did not think that the name change would hurt anyone's feelings. {¶ 6} In the findings of fact and conclusions of law, the magistrate determined that the surname change would create a bond with the minor girls' relationship with appellee, while still preserving the identity with appellant and his family. The magistrate further found no evidence that the surname change would have a dramatic effect on the minor girls or cause them embarrassment. Finally, the magistrate excluded appellant's witness, as she did not qualify as an expert witness. On October 30, 2003, the magistrate concluded that appellee met the burden set forth in In re Willhite, supra. In the best interest of the minor girls, their names were changed to Adara Leigh Mistovich-Perez and Adena Gabrielle Mistovich-Perez. {¶ 7} On November 4, 2003, appellant filed objections to the magistrate's decision arguing that the magistrate's findings of fact were erroneous and against the manifest weight of the evidence. On January 28, 2004, the trial court found that the magistrate applied the proper legal standard and that the evidence met the burden of that standard. The trial court noted that there was reasonable and probable cause for changing the minor girls' surname and that the name change would be in the minor girls' best interest. Furthermore, the trial court concluded that the magistrate did not abuse his discretion by refusing to let appellant's witness testify. It is from this decision that appellant appeals, assigning the following as error: I. The trial court abused its discretion and erred in grantingthe name change of the minor children. II. The trial court abused its discretion in disallowing thetestimony of a witness as to her experiences of living with ahyphenated name. III. The trial court erred in permitting the two eight yearold twin girls to express their "wishes" concerning the namechange without determining if the girls were competent and matureenough to express an opinion, interviewing the girls together andwithout placing the girls under oath. {¶ 8} We must first address appellee's motion to strike certain evidentiary materials in appellant's brief, which is made on the ground that these materials are not properly part of the record upon appeal. Specifically, these materials include appellee's relationship with a man she later married, additional surnames in appellee's primary residence as a result of the marriage, and the practical effects of a hyphenated name in society. {¶ 9} An appellate court is limited to consideration of the record properly before it upon appeal from the trial court's decision. State v. Ishmail (1978), 54 Ohio St.2d 402. A reviewing court cannot add matter to the record that was not part of the trial court's proceeding and then decide the appeal based on the new matter. McAuley v. Smith (1998), 82 Ohio St.3d 393,396. {¶ 10} Appellant complains that the evidence that appellee was seriously involved with another man and had subsequently married this gentleman was presented at the hearing. A careful review of the transcript reveals that appellee did testify that she was in a serious relationship with another man. However, when the hypothetical question was posed to appellee by appellant's counsel regarding a future marriage, the trial court did not allow this line of questioning. Appellant wants this court to take judicial notice of this marriage because it is a public record. In addition, appellant's attempt to introduce evidence of additional surnames in appellee's residence and the effects of a hyphenated name in society were also disallowed by the trial court. {¶ 11} Testimony as to appellee's remarriage, the additional surnames in her primary residence, and the effects of the hyphenated names in our society were not allowed by the trial court, and were not, therefore, relied upon in the trial court's decision. We find the trial court's evidentiary ruling in such regards not to be an abuse of discretion. Appellee's motion to strike is well taken and none of the aforementioned materials will be relied upon in our decision, nor shall we consider arguments advanced by appellant in reliance on this evidence. As such, appellee's motion to strike filed April 28, 2004, is hereby granted. {¶ 12} In his first assignment of error, appellant maintains that appellee failed to meet her burden of establishing reasonable and proper cause for the minor girls' surname change and that the change was in the best interest of the children. Appellant maintains that the twin girls have been known by their family and friends, and in the community, church and school, as Perez for eight years. Appellant also argues that the surname change would further risk disassociation of the minor girls from appellant and his two sons, especially since the minor girls do not reside with appellant and appellant and appellee do not have equal rights and shared parenting. Appellant asserts that because appellee spends the majority of the time with the minor girls, his relationship with the twins is strained. {¶ 13} The change of name statute, R.C. 2717.01, vests discretion with the trial court to determine whether to grant a name change application. On appeal, our role is not to reweigh the evidence, but to determine whether the trial court's application of the law to the facts presented amounted to an abuse of discretion. In re Crisafi (1995), 104 Ohio App.3d 577. "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. {¶ 14} In this case, appellee is not attempting to remove appellant's surname from the names of the minor girls. Rather, appellee seeks to combine both surnames for the minor girls to use. Appellee testified that she was not trying to take appellant's identity away from the minor girls or cause the girls to become disassociated with their father. Also with the name change, appellee hoped to eliminate any confusion of being referred to as the mother of appellant's two sons. There is no evidence that adding appellee's surname would have a negative impact on the minor children. Since appellee had recently changed her surname back to her maiden name, she wanted her daughters to share a common surname. She wanted to eliminate any confusion with her daughters explaining why their last name is different from their mother's. {¶ 15} "`A dual name would help the child identify with both parents, a state of mind that child psychologists say is essential to the child's adjustment to divorce.'" In reWillhite, at 33, quoting Seng, Note, Like Father, Like Child: The Rights of Parents in their Children's Surnames (1984), 70 Va.L.Rev. 1303, 1350, citing Cochran Vitz, Child Protective Divorce Laws: A Response to the Effects of Paternal Separation on Children (1983), 17 Fam.L.Q. 327, 333-334, 353. {¶ 16} We find there was sufficient evidence, as a matter of law, to support the probate court's judgment changing the minor girls' surname. As such, the trial court did not abuse its discretion in adopting the magistrate's decision. Appellant's first assignment of error is not well-taken. {¶ 17} In his second assignment of error, appellant maintains that the trial court abused its discretion in finding that the magistrate's exclusion of appellant's witness was proper under Evid.R. 702(B), and not an abuse of discretion. Appellant proffered for the record that his witness, Cynthia Sullivan-Fraser, was to testify regarding her experiences of living with a hyphenated name and how often the name Fraser in the hyphenated name fell off. The magistrate did not allow Cynthia to testify because she did not qualify as an expert. {¶ 18} The decision whether testimony is relevant and will assist the trier of fact is within the discretion of the trial court. State v. Williams (1983), 4 Ohio St.3d 53, syllabus. Absent an abuse of that discretion, a reviewing court should not reverse. {¶ 19} The trial court must follow the basic mandates of Evid.R. 702, which states: 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. * * * {¶ 20} In this case, the trial court excluded Cynthia's testimony because she did not have the specialized knowledge, skill, experience, training, or education regarding the effects of living with a hyphenated name, nor would Cynthia's testimony have related to matters beyond the knowledge or experience possessed by laypersons nor would it dispel a misconception among laypersons, nor would it be based on reliable scientific, technical, or other specialized information, as Cynthia was testifying about her own personal experiences of having a hyphenated surname. Therefore, we find that the trial court did not commit an abuse of discretion when it excluded Cynthia's testimony. As such, appellant's second assignment of error lacks merit and is not well-taken. {¶ 21} In his final assignment of error, appellant argues that the magistrate erred by questioning the two eight year old minor girls without properly placing the children under oath or qualifying the children as witnesses. Appellant's counsel objected, arguing that based on the minor girls' maturity level, they were unable to express their preference. The magistrate overruled the objection, stating he wanted to talk with the children to get an idea from the minor girls how they perceived what was going on and if the name change would cause them any stress, discomfort, or embarrassment. {¶ 22} In his decision, the magistrate noted that the questioning of the minor girls was appropriate because appellant was the one who raised the issue of embarrassment to the minor girls and concerns of harmful effects on them as a result of the name change. The magistrate concluded that the minor girls had sufficient maturity to be questioned by the court. However, the trial court concluded that the minor girls were not mature enough to understand the issues surrounding the surname change. (Jan. 28, 2004 Entry at 1-2.) The trial court noted that the magistrate did not rely solely on the testimony of the minor girls. {¶ 23} A review of the record reveals that the minor girls were not called as witnesses, but were interviewed by the magistrate only to aid in his decision in granting the name change. A magistrate generally has the power to regulate proceedings to the same extent as a trial court. Holm v.Smilowitz (1992), 83 Ohio App.3d 757, 771. Magistrates possess inherent power to regulate court proceedings, and a ruling or order by the magistrate affecting the conduct of the trial will not be reversed unless the complaining party demonstrates prejudicial abuse of discretion. Id. at 771-772. Therefore, because the minor girls were not called as witnesses, they were not required to submit to an oath or affirmation. Evid.R. 603 ("Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation."). {¶ 24} In order to consider whether the change of the minor girls' surname was in their best interest, In re Willhite mandates that the trial court consider several factors. One of those enumerated factors was "the embarrassment, discomfort, or inconvenience that may result when a child bears a surname different from the residential parent's." Id. at paragraph two of the syllabus. In order to consider this factor, the trial court felt it necessary to speak with the minor girls. Furthermore, the hearing transcript evidences that the magistrate's decision was supported by more than ample evidence. As such, we find that the trial did not act arbitrarily in interviewing the minor girls to determine their wishes. Accordingly, appellant's third assignment of error lacks merit and is not well-taken. {¶ 25} For the foregoing reasons, appellant's first, second, and third assignments of error are overruled and the decision of the Franklin County Court of Common Pleas, Probate Division, is affirmed. Appellee's motion to strike granted; judgment affirmed. Bowman and Deshler, JJ., concur. Deshler, J., retired, of the Tenth Appellate District, assigned to active duty under the authority of Section 6(C), Article IV, Ohio Constitution.

2016-07-06 06:42:25.197434+00

OPINION This timely appeal arises from the trial court's dismissal of a charge against Appellant for violating R.C. § 4507.02(B)(1), driving under a financial responsibility suspension. For the following reasons, the judgment of the trial court is affirmed. On July 2, 1998, Appellee William H. Stoneking was cited for driving under FRA suspension in violation of R.C. § 4507.02(B)(1). At his initial appearance on July 17, 1998, Appellee entered a plea of not guilty. Following a pre-trial hearing on August 25, 1998, the trial court granted the State of Ohio fourteen days to file legal authority which would justify the stop of Appellee's vehicle. This entry was apparently prompted by Appellee's oral motion to suppress or dismiss, although the record does not confirm it. On August 28, the State filed a memorandum with the trial court which read in pertinent part: "On July 2, 1998, Trooper Jerico set up a vehicle safely [sic] check on US. 40 at 8:44 a.m. (See attached log). "In the course of the vehicle inspection, the trooper stopped the defendant and learned he was driving under an FRA suspension. The defendant was cited by Trooper Jerico. "The defendant claims the stop was random and violated Ohio law. However, in Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme Court held that only random vehicle checks violate the Fourth amendment rights. "In State v. Goines [(1984), 16 Ohio App.3d 168], * * * the court held that `evidence obtained in a safety search made from a designated checkpoint indicating that the driver of the stopped vehicle was driving under a suspension * * * is not obtained in violation the Fourth Amendment and is thus admissible.' This case is directly on point as evidenced by the log indicating that Trooper Jerico was working at at [sic] traffic checkpoint at the time of the citation." The "attached log" to which Appellant referred purports to serve as evidence of a pre-determined safety checkpoint conducted by Trooper Jerico. However, Appellant offered no explanation of the contents of the log, nor is it authenticated by affidavit or in any other manner. On September 24, 1998, Appellee filed a "Motion to Dismiss," wherein he also relied on State v. Goines, supra. Appellee asserted that pursuant to this authority, a stop at a safety checkpoint is valid only if the checkpoint has been previously designated and was not set at the whim of the officer. On October 26, 1998, the trial court filed a journal entry whereby it noted that State v. Goines provided that the location of fixed checkpoints was to be determined, "* * * not by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources." The court also stated that pursuant to R.C. § 4513.02(c), safety check-points are to conform with standards promulgated by the superintendent of the State Highway Patrol. The court granted Appellant fourteen days to submit evidence that the stop of Appellee conformed to these standards. On November 11, 1998, the trial court filed a journal entry granting Appellee's motion to dismiss. The court noted that Appellant failed to provide sufficient evidence that the checkpoint at which Appellee's vehicle was stopped conformed to statutory and case law. On November 19, 1998, Appellant filed a notice of appeal pursuant to Crim.R. 12(J). Appellant's sole assignment of error alleges: "THE TRIAL COURT ERRED IN GRANTING APPELL[EE]'S MOTION TO DISMISS BECAUSE TROOPER JERICO'S STOP OF APPELL[EE] AT A SAFETY CHECKPOINT DID NOT VIOLATE APPELL[EE]'S RIGHTS UNDER THE STATE AND U.S. CONSTITUTION." Appellant sets forth that in Delaware v. Prouse (1979), 440 U.S. 648, the United States Supreme Court recognized a need for safety inspections as long as stops were not random, or at the "whim" of police officers. Appellant stresses that the Court did not prohibit less intrusive checks or ones that do not involve unconstrained exercise of discretion. Reiterating its reliance on State v. Goines, supra, Appellant states that in that case, a state trooper was involved as part of a, "calculated pattern of inspecting cars at a designated checkpoint." According to Appellant, the trooper would flag down the next available motorist after he completed the inspection of a vehicle. The court ruled that such a stop did not violate the motorist's Fourth Amendment rights. State v.Goines, 172. Appellant concludes that the present case is analogous toGoines in that Trooper Jerico was not conducting random safety checks with unbridled discretion. Appellant asserts that the touchstone of theFourth Amendment is reasonableness and that Jerico's conduct was reasonable. Finally, Appellant asserts, with no explanation, that, "[i]n the alternative, the Trial Court should have asked for an evidentiary hearing before sustaining Appell[ee]'s Motion." In response, Appellee does not challenge the State's reading ofDelaware v. Prouse, supra. Likewise, Appellee does not challenge that the court in State v. Goines held that evidence obtained as the result of a calculated pattern of inspecting cars at a checkpoint is legally obtained. However, Appellee agrees with the trial court's interpretation of State v. Goines that the location of a fixed checkpoint is to be chosen by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. Appellee asserts that in the present matter there is nothing on the record to indicate that the stop was anything but random and that there is no evidence that the checkpoint was chosen by responsible officials. Based on the record before us and the relevant law, Appellant's assignment of error lacks merit. It should be noted that Appellee styled his motion before the trial court as a motion to dismiss, claiming that the stop leading to his citation was in violation of the Fourth Amendment. This Court has held that there is no provision in the Ohio Rules of Criminal Procedure regarding a motion to dismiss on Fourth Amendment grounds. State v.Lloyd (Apr. 15, 1998), Belmont App. No. 96 BA 31, unreported, citing Cityof Cleveland v. Shields (1995), 105 Ohio App.3d 118, 123 (Blackmon, J., concurring), citing State v. Hartley (1988), 51 Ohio App.3d 47, 48. "The proper remedy for Fourth Amendment violations is suppression of the evidence, not dismissal of the charges." State v. Hartley, 48 citingBlanchester v. Hester (1992), 81 Ohio App.3d 815, 820. Therefore, the present matter is properly reviewed under the same standard of review as a motion to suppress. State v. Beall (Mar. 18, 1999) Belmont App. No. 94-B-43, unreported, *4. An appellate court will not disturb a trial court's decision on a motion to suppress when it is supported by competent, credible evidence.State v. Winand (1996), 116 Ohio App.3d 286, 288, citing Tallmadge v.McCoy (1994), 96 Ohio App.3d 604, 608. An appellate court accepts the trial court's findings of fact if they are supported by competent, credible evidence. State v. Kobi (1997), 122 Ohio App.3d 160, 168, citingState v. Guysinger (1993), 86 Ohio App.3d 592, 594. While accepting that the facts as found by the trial court are true, an appellate court must then, "* * * independently determine as a matter of law, without deference to the trial court's conclusion, whether the facts meet the legal standards * * *" applicable to the case. Lloyd, supra [citations omitted]; State v. Brown (1996), 116 Ohio App.3d 477, 481. A motion to suppress evidence as illegally obtained is properly raised in a pre-trial motion under Crim.R. 12(B)(3). "The court may adjudicate a motion based upon briefs, affidavits, the proffer of testimony and exhibits, a hearing, or other appropriate means." Crim.R. 12(E). In the present case, the trial court found that there was insufficient evidence to establish that the stop of Appellee conformed with existing statutory and state law. As noted earlier, the trial court adopted the position that a fixed checkpoint must be chosen by responsible officials, not an officer in the field. The record in the present case supports a conclusion that there was no factual basis to support the State's position. The record reflects that neither Appellee nor the prosecution on behalf of the State requested a hearing on the motion. Rather, the trial court permitted the parties to respond by brief and to submit evidence in support of their respective positions. The state presented only a photocopy of Trooper Jerico's log in support of the contention that Jerico stopped Appellee as part of a pre-determined safety inspection checkpoint. As noted earlier, the log is indecipherable and without explanation or verification from the State or Jerico. The log does not in any manner suggest that the stop was anything but at Jerico's discretion. Based on the State's meager submission, the record supports the trial court's factual conclusion. Turning to the question of whether the facts meet the legal standard, in Delaware v. Prouse, supra, the United States Supreme Court recognized the vital interest in ensuring that vehicles are fit for safe operation and that inspection requirements are observed. Id., 658. However, the Court determined that the random stop of a driver is unreasonable under the Fourth Amendment absent reasonable and articulable suspicion that the driver is unlicenced or that he is otherwise subject to seizure for violation of the law. Id., 663. "This holding does not preclude [the States] from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers." Id. While the Court in Prouse stated in dicta that a roadblock-type stop of all oncoming vehicles is a permissible method of conducting inspections, it did not expound on any further requirements for or limitations on such police activity. In Michigan Dept. of State Police v. Sitz (1990),496 U.S. 444, the U.S. Supreme Court addressed the permissibility of a roadblock-type sobriety checkpoint. However, there is no controlling authority regarding the use of a roadblock-type vehicle safety inspection point, as is at issue here, where the interests are significantly different. The most comprehensive analysis of the issue was by the Second Appellate District in State v. Goines, supra. The court there recognized that R.C. § 4513.02 requires that vehicles be safe for travel and that a driver submit to a safety inspection as directed by a state highway patrolman. State v. Goines, 171. However, the court also stated that, "[i]nsofar as R.C. 4513.02(B) would permit the random stop of automobiles, it must be read in conjunction with Delaware v. Prouse,supra." State v. Goines, 171. The Goines court considered an Iowa Supreme Court decision which set forth guidelines to gauge the permissibility of a checkpoint stop in light of Prouse: "* * * where there is no consent, probable cause, or Terry-type reasonable and articulable suspicion, a vehicle stop may be made only where there minimally exists (1) a checkpoint or roadblock location selected for its safety and visibility to oncoming motorists; (2) adequate advance warning signs, illuminated at night, timely informing approaching motorists of the nature of the impending intrusion; (3) uniformed officers and official vehicles in sufficient quantity and visibility to `show * * * the police power of the community,' and (4) a predetermination by policy-making administrative officers of the roadblock location, time, and procedures to be employed, pursuant to carefully formulated standards and neutral criteria." State v. Hilleshiem (Iowa 1980), 291 N.W.2d 314, 318 quoted in Statev. Goines, 170-171. The Goines court affirmed the permissibility of the stop of the appellant therein as, "* * * the facts suggest the stopping was not an unbridled act of whim, but was part of a calculated pattern of inspecting automobiles at a designated checkpoint. [The officer] stated that after he had completed the inspection of one vehicle, he flagged down the next available motorist, who happened to be the appellant." State v. Goines, 171. It is clear that if we were to follow the standards set forth inGoines, the evidence submitted by Appellant would not support that Appellee was stopped as part of a calculated pattern. However, it is not necessary for us to adopt or extensively analyze Goines or any other standard for safety checkpoints. The meager offering of evidence by the State does not even rise to the threshold showing required in Delawarev. Prouse that the stop was not at the unbridled discretion of the police officers. As noted earlier, the unauthenticated and indecipherable log gives no indication that the stop of Appellee was other than at the discretion or whim of Trooper Jerico. Had there been some evidence that an actual roadblock inspection point was implemented, then a detailed analysis under Goines would be appropriate. In short, we are unable to determine the constitutionality of the roadblock at which Appellee was stopped as Appellant has failed to produce any evidence that the stop was anything other than random. Accordingly, we hold that Appellant's assignment of error lacks merit and affirm the judgment of the trial court. _______________ WAITE, J. Donofrio, J., concurs, Vukovich, P.J., concurs.

2016-07-06 06:42:25.229181+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant-appellant Matthew Schwabauer ("appellant") appeals from the judgment of the trial court denying his motion to suppress the evidence and finding him guilty of operating a motor vehicle while under the influence of alcohol. For the reasons set forth below, we affirm. {¶ 2} On July 25, 2003, appellant was pulled over in Cleveland Heights for traveling 41 miles per hour in a 25 miles per hour zone. The Cleveland Heights officer who pulled him over noticed immediately the strong odor of alcohol emanating from the vehicle. Based on odor, appellant's speeding, slurred speech and red eyes, the officer conducted field sobriety tests on appellant. Appellant was thereafter charged with speeding and operating a motor vehicle while under the influence of alcohol ("OMVI"). Appellant filed a motion to suppress, which the trial court denied. Appellant later pled no contest to the OMVI and the city dismissed the speeding charge. Appellant now appeals asserting two assignments of error for our review. {¶ 3} "I. The trial court erred in determining that Ptl. Speece had a reasonable suspicion that appellant was under the influence of alcohol; appellant's detention exceeded the scope of the purpose of the original traffic stop." {¶ 4} Appellant, in essence, challenges the trial court's ruling denying his motion to suppress, maintaining Officer Speece acted without reasonable suspicion in detaining him longer than necessary to effect a traffic stop and thereafter conducting field sobriety tests. {¶ 5} When considering a motion to suppress, a trial court serves as trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Mills (1992), 62 Ohio St.3d 357. Accordingly, a reviewing court must defer to the trial court's findings of fact and conclusions of law if supported by competent, credible evidence. State v. Smith (1997), 80 Ohio St.3d 89, 1997-Ohio-355. The appellate court must independently determine as a matter of law, without deferring to the trial court's conclusions, whether the facts meet the applicable legal standard. State v. Klein (1991), 73 Ohio App.3d 486,488. {¶ 6} A police officer may briefly stop and detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that "criminal activity may be afoot," even if the officer lacks probable cause to make an arrest. Terry v.Ohio (1968), 392 U.S. 1. {¶ 7} In this case, appellant concedes the propriety of the traffic stop for speeding. He maintains, however, Officer Speece lacked a reasonable suspicion that he was driving while under the influence of alcohol and therefore exceeded the scope of the traffic stop when he ordered appellant out of his car to perform field sobriety tests. We disagree. {¶ 8} Upon pulling appellant over for a speeding violation, Officer Speece noticed a "strong, extreme odor" of alcohol emanating from the car. Appellant explained the odor was from a fresh beer stain on his pants and from his friend who had been drinking and smelled "liked a brewery." While there was a fresh stain on appellant's pants and his friend was visibly intoxicated, the officer also noticed appellant's eyes were glassy and a bit red, and his speech was slurred. {¶ 9} Officer Speece asked appellant to perform divided attention tests while he was still seated in the car. The officer determined that, while appellant finished the finger counting task, he was slightly shaky while touching his fingers and performed the test much more slowly and deliberately than the officer did when demonstrating for appellant. Furthermore, appellant was asked to recite the alphabet from I to S. Again, while he completed the task, the officer found he had a slight slur, though he pronounced each of the letters overly deliberately than the officer had. The officer described appellant's speech as a thick tongue speaking pattern. Appellant asked to step out of his car, at which time appellant took a large step and was unsteady. The officer was confident that the smell of alcohol was emanating from appellant's breath. {¶ 10} For support of his position, appellant relies on several cases, which we find unpersuasive in the case at hand. In State v. Evans (1998), 127 Ohio App.3d 56, the appellate court determined an officer had a reasonable suspicion appellant was driving while under the influence of alcohol after receiving dispatch reports regarding the motorist's impaired driving, smelling alcohol on his person, and the motorist admitting he had a few beers. The court cited a non-exhaustive list of factors to be considered in a totality of the circumstances analysis of whether an officer had a reasonable suspicion sufficient to conduct roadside sobriety tests. {¶ 11} Appellant maintains that few to none of the factors apply in his case. We disagree and reject appellant's characterization of the factors as they apply to the instant case. As stated above, appellant was speeding, which is indicia of impaired driving, it was after midnight on Thursday night, he was traveling home from The Brewery, he had glassy, red eyes, slightly slurred and overly deliberate speech and a "strong, extreme" odor of alcohol emanating from the vehicle. All of these factors, coupled with the officer's experience and training were sufficient to create a reasonable suspicion that appellant was driving under the influence. {¶ 12} Appellant also relies on State v. Spillers (Mar. 24, 2000), Second Dist. App. No. 1504 and State v. Dixon (Dec. 1, 2000), Second Dist. App. No. 2000-CA-30. In Spillers, the court found that in the absence of some indicia of impaired driving, slurred speech or bloodshot eyes, a de minimus lane violation with the mere detection of the odor of alcohol did not rise to a reasonable suspicion the motorist was driving while under the influence. Similarly, in Dixon, the same court held an officer pulling over a motorist for a tinted window violation improperly conducted field sobriety tests where the officer merely detected an odor of alcohol, but failed to witness any impaired driving by the motorist. {¶ 13} Lastly, appellant relies on State v. Gustin, (1993),87 Ohio App.3d 859. In Gustin, the court found a trooper lacked the requisite reasonable suspicion to conduct field sobriety tests. There, a trooper responded to a single vehicle accident in which a motorist hit a pole after swerving, on a wet road and in fog, to avoid a deer crossing the road. The motorists' eyes were neither glassy nor bloodshot, his speech was not slurred and the trooper did not detect an odor of alcohol. {¶ 14} We find the above cases markedly different from the case at hand where the officer witnessed impaired driving, to wit speeding, noticed an extreme odor of alcohol, slurred and overly deliberate speech and glassy, red eyes. We find these facts constitute sufficient articulable facts to support the officer's reasonable suspicion that appellant may have been driving under the influence and his decision to conduct field sobriety tests. We therefore overrule this assignment of error. {¶ 15} "II. The trial court erred in determining that Ptl. Speece had probable cause to arrest appellant for driving under the influence of alcohol, to wit, the field sobriety tests were not conducted in substantial compliance with NHTSA, the results should not have been considered, and the remaining evidence did not support probable cause." {¶ 16} In his second and final assignment of error, appellant avers Officer Speece failed to conduct the field sobriety tests in compliance with NHTSA and the results should have been suppressed. It follows, he argues, Officer Speece arrested him without probable cause. {¶ 17} In Ohio, a warrantless arrest in a DUI case is constitutional so long as, at that moment, the officer had probable cause to make the arrest. State v. Woodards (1966), 6 Ohio St.2d 14. In order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in substantial compliance with standardized testing procedures. State v. Schmitt,101 Ohio St.3d 79, 82, 2004-Ohio-37; R.C. 4511.19. {¶ 18} In this case, appellant avers the trial court erred in determining Officer Speece conducted the field sobriety tests in substantial compliance with NHTSA. We disagree. {¶ 19} Regarding the Horizontal Gaze Nystagmus ("HGN") test, appellant complains Officer Speece failed to comply with the NHTSA's procedures in instructing appellant prior to administering the test, he failed to follow NHTSA procedures when he checked the left eye twice in succession, then the right eye twice in succession for clues of nystagmus, and that he moved the stimulus too quickly across appellant's field of vision when checking for the onset nystagmus prior to a 45 degree angle. {¶ 20} First, appellant maintains Officer Speece only "instructed" that he was going to check appellant's eyes prior to administering the test, rather than reciting verbatim these instructions set forth in NHTSA's manual: {¶ 21} "I am going to check your eyes. Keep your head still and follow this stimulus with your eyes only. Keep following the stimulus with your eyes until I tell you to stop." {¶ 22} However, Officer Speece testified that he told appellant he was going to check his eyes. He instructed appellant to place his hands on his cheeks to ensure his head remained steady and for officer safety, then told appellant "you're going to follow the pen with your eyes and your eyes only." (T. 71-72). We find Officer Speece's instructions substantially complied with NHTSA's instructions. {¶ 23} Next, appellant complains Officer Speece failed to conduct the distinct nystagmus at maximum deviation test in the correct order. Officer Speece testified he began the test with appellant's left eye, moved his pen until appellant's eye had gone as far to the side as possible and held it there in order to observe the eye for distinct and sustained nystagmus, repeated the procedure on the left eye and then performed it on the right. While not in strict compliance with NHTSA's procedures, we find the order in which Officer Speece conducted the distinct nystagmus at maximum deviation test was in substantial compliance. {¶ 24} Lastly, appellant challenges the Officer's method for testing the onset of nystagmus prior to 45 degrees. NHTSA provides an officer should move the stimulus at a speed of approximately four seconds. The manual states the purpose behind the four second rule: {¶ 25} "It is important to use the full four seconds when checking for the onset of nystagmus. If you move the stimulus too fast, you may go past the point of onset or miss it altogether." In this case, the officer moved the stimulus at a speed of between two and three seconds and was still able to detect the onset of nystagmus prior to forty-five degrees. Presumably, moving the stimulus in strict compliance with the manual would have rendered the same, if not worse, results. We therefore fail to see how the discrepancy in Officer Speece's administration prejudiced appellant. {¶ 26} Appellant also alleges Officer Speece failed to administer the Walk and Turn Test ("WAT") in substantial compliance with NHTSA when he gave all the instructions prior to giving any demonstrations, failed to tell appellant not to begin walking until told to do so and failed to instruct appellant to count his first step as one. However, the record demonstrates Officer Speece substantially complied with NHTSA in instructing appellant demonstrating for appellant the WAT test. {¶ 27} We find the trial court was correct in determining that Officer Speece substantially complied with NHTSA. As a result, we find the results admissible, and affirm the trial court's determination that probable cause existed to arrest appellant for operating a motor vehicle while under the influence. 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 Cleveland Heights Municipal 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. Blackmon, P.J., concurs. Karpinski, J., concurs in judgment only

2016-07-06 06:42:25.263759+00

OPINION {¶ 1} Appellee-appellant, Ohio Department of Administrative Services ("ODAS"), appeals from a judgment of the Franklin County Court of Common Pleas, which disaffirmed an order of the State Personnel Board of Review ("SPBR") that affirmed the abolishment of appellant-appellee Joyce A. Penrod's job. For the following reasons, we affirm the judgment of the common pleas court. {¶ 2} Ms. Penrod was employed as a Facilities Planning Project Manager in the office of the Ohio State Architect. Due to agency reorganization that was prompted by budgetary reductions, her job was abolished, effective September 4, 2002. Thereafter, she appealed to the SPBR, which assigned the matter to an administrative law judge. {¶ 3} After conducting a hearing, an administrative law judge issued a report and recommendation, wherein she recommended disaffirmance of the abolishment of Ms. Penrod's job. Objecting to this report and recommendation, ODAS appealed to the SPBR. {¶ 4} Thereafter, after requesting additional supplementation by the parties, the SPBR overruled the administrative law judge and affirmed the abolishment of Penrod's job. From the SPBR's order affirming the abolishment of her job, Ms. Penrod appealed to the Franklin County Court of Common Pleas. {¶ 5} Finding that there was no reliable, probative, and substantial evidence to support the SPBR's order, the common pleas court disaffirmed the order of the SPBR and ordered Ms. Penrod to be reinstated to her position as Facilities Planning Project Manager, effective as of September 4, 2002. From this judgment, ODAS appeals and assigns a single error for our consideration: The court of common pleas erred as a matter of law in finding that the order of the State Personnel Board of Review was [not] supported by reliable, probative and substantial evidence and was [not] in accordance with law, when the Ohio Department of Administrative Services demonstrated a statutory basis for the abolishment of Ms. Penrod's position. {¶ 6} "An order of the State Personnel Board of Review issued on appeal from a final decision of an appointing authority relative to job abolishments is appealable, pursuant to the provisions of R.C. 119.12."Pitts v. Ohio Dept. of Trans. (1981), 67 Ohio St.2d 378, paragraph two of the syllabus. {¶ 7} Pursuant to R.C. 119.12, when a common pleas court reviews an order of an administrative agency, the common pleas court must consider the entire record to determine whether the agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-111; see, also, Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280. The common pleas court's "review of the administrative record 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, at 280. In its review, the common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, but the findings of the agency are not conclusive. Conrad, at 111. {¶ 8} An appellate court's review of an administrative decision is more limited than that of a common pleas court. Pons v. Ohio State Med.Bd. (1993), 66 Ohio St.3d 619, 621, rehearing denied, 67 Ohio St.3d 1439. In Pons, the Supreme Court of Ohio instructed: * * * While it is incumbent on the trial court to examine the evidence, this is not a function of the appellate court. The appellate court is to determine only if the trial court has abused its discretion,i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for [that of an administrative agency] or a trial court. Instead, the appellate court must affirm the trial court's judgment. * * * Id. at 621. {¶ 9} An appellate court does, however, have plenary review of purely legal questions. Chirila v. Ohio State Chiropractic Bd. (2001),145 Ohio App.3d 589, 592, citing Steinfels v. Ohio Dept. ofCommerce, Div. of Securities (1998), 129 Ohio App.3d 800, 803, appeal not allowed (1999), 84 Ohio St.3d 1488. {¶ 10} Former R.C. 124.321(D),1 in pertinent part, provided: Employees may be laid off as a result of abolishment of positions. Abolishment means the permanent deletion of a position or positions from the organization or structure of an appointing authority due to lack of continued need for the position. An appointing authority may abolish positions as a result of a reorganization for the efficient operation of the appointing authority, for reasons of economy, or for lack of work. The determination of the need to abolish positions shall indicate the lack of continued need for positions within an appointing authority. Appointing authorities shall themselves determine whether any position should be abolished and shall file a statement of rationale and supporting documentation with the director of administrative services prior to sending the notice of abolishment. If an abolishment results in a reduction of the work force, the appointing authority shall follow the procedures for laying off employees[.] * * * {¶ 11} Here, the rationale in support of the abolishment of Ms. Penrod's job was increased efficiency. However, the common pleas court concluded that there was no reliable, probative, and substantial evidence to support a claim of increased efficiency resulting from the abolishment of her job. The common pleas court stated: * * * Since the Court has already concluded that there was no stated basis of economy for the abolishment, the issue is not determinative of the appeal. The notice to Penrod of August 8, 2002 from DAS states in part: "This position is being abolished for reasons of efficiency. With recent reductions in the state budget, and with additional budget reductions planned for the next biennium, the SAO [State Architect's Office] must now address reorganizing the Interior Design Services (IDS) to efficiently accommodate available capital projects and capital funds." * * * While the [SPBR] has expertise in this area and is entitled to due deference, this Court cannot adopt a position that blurs the distinction set forth by the legislature. There may be more than one basis for a job abolishment, nonetheless the appointing authority should be held to a standard of enunciating the actual basis or bases in order to fairly apprise an employee of her or his rights if a dispute should arise and an appeal prompted. (Aug. 26, 2004 Decision, at 9-10.) {¶ 12} ODAS argues there is substantial overlap between the meanings of "reorganization for * * * efficient operation" and "reorganization for * * * reasons of economy," and, because there is a substantial overlap, the common pleas court erred. {¶ 13} "A basic rule of statutory construction requires that `words in statutes should not be construed to be redundant, nor should any words be ignored.'" D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health,96 Ohio St.3d 250, 2002-Ohio-4712, at ¶ 26, quoting E. Ohio Gas Co. v.Pub. Util. Comm. (1988), 39 Ohio St.3d 295, 299. Moreover, "[s]tatutory language `must be construed as a whole and given such interpretation as will give effect to every word and clause in it. No part should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative.'" Id., quoting State ex rel. Myers v. Spencer Twp. RuralSchool Dist. Bd. of Edn. (1917), 95 Ohio St. 367, 372-373. {¶ 14} Here, if "reorganization for * * * efficient operation" and "reorganization for * * * reasons of economy" in former R.C. 124.321(D) have the same meaning, then these provisions in former R.C. 124.321(D) are redundant and either of these provisions would be rendered superfluous. Such a construction is contrary to the basic rule of statutory construction that "words in statutes should not be construed to be redundant, nor should any words be ignored.'" Id., quoting E. Ohio GasCo., at 299. {¶ 15} Accordingly, ODAS's contention that the common pleas court erred because it declined to blur the distinctions set forth in former R.C. 124.321(D) is not well-taken. {¶ 16} In State ex rel. Bispeck v. Bd. of Commrs. of Trumbull Cty. (1988), 37 Ohio St.3d 26, construing a former version of Ohio Adm. Code124-7-01(A)(1), the Supreme Court of Ohio determined that an appointing authority has the burden of proving by a preponderance of the evidence that a job abolishment was undertaken due to the lack of continuing need for the position, a reorganization for the efficient operation of the appointing authority, for reasons of economy, or for a lack of work that is expected to last more than 12 months. Id. at 28. Cf. Ohio Adm. Code124-7-01(A)(1), effective March 28, 1998.2 {¶ 17} In Bispeck, the court considered, among other things, whether the SBPR misconstrued the terms "economy" and "efficient operation" in the context of permissible reasons for abolishment of positions as set forth in former R.C. 124.321(D). Id. at 29-30. In Bispeck, the appellee, the Board of Commissioners of Trumbull County, argued that the SBPR's use of "increased efficiency" and "more efficient" in an order indicated that the SBPR required an appointing authority to demonstrate that there was a greater output of performing or functioning after an abolishment. Id. at 30. The appellee contended that such a requirement misconstrued and exceeded former R.C. 124.321(D), which allowed abolishments where a reorganization occurred for "efficient operation" or "for reasons of economy." Id. {¶ 18} Observing that the relator's job was abolished as part of the reorganization for the efficient operation of the county commissioner's office, the Bispeck court stated that "[i]n order to determine whether any efficiency gains were accomplished by the abolishment, the board must consider the county's operation before and after the abolition." Id. TheBispeck court further stated that "[w]e believe that the intent of the General Assembly was to require an appointing authority to justify a job abolishment by proving that the abolishment would result in more efficient operations." Id. at 30-31. {¶ 19} In Monger v. Fairfield Cty. Dept. of Human Serv. (Apr. 6, 2000), Franklin App. No. 99AP-492, this court considered an appeal by the Fairfield County Department of Human Services from a judgment of a common pleas court that disaffirmed the abolishment of a clerical supervisor position. Affirming the judgment of the common pleas court, the Monger court found that none of the witnesses on behalf of the county department of human services had any personal knowledge as to the appellee's duties prior to a job abolishment and the merger of two county agencies. Only one witness on behalf of the county department of human services was able to testify to the appellee's current job duties. The Monger court therefore determined that the county department of human services did not present "before and after evidence" as required by Bispeck. The Monger court further found that the county department of human services failed to produce evidence of increased efficiency. The Monger court determined that the common pleas court correctly discounted an administrative law judge's reliance on a report as evidence of increased efficiency because the report was produced prior to the merger and abolishment. The Monger court further observed that an administrative law judge's reliance on notions of sensibility did not rise to the level of probative evidence and that the fact that the county did not receive any negative feedback from the public after the merger also did not rise to the level of probative evidence of increased efficiency due to the abolishment of the appellee's position. {¶ 20} In the present appeal, ODAS argues that Monger misconstruedBispeck and this court should follow the view of the First District Court of Appeals in McAlpin v. Shirey (1997), 121 Ohio App.3d 68. We disagree. {¶ 21} In McAlpin, Walter McAlpin appealed to the Civil Service Commission of the city of Cincinnati following his demotion to police captain after abolishment of an assistant police chief position within the Cincinnati Police Division. After the civil service commission denied McAlpin's appeal, McAlpin appealed to the Hamilton County Court of Common Pleas, which affirmed the commission's decision. From the common pleas court's decision, McAlpin appealed to the First District Court of Appeals. {¶ 22} In his appeal before the appellate court, relying uponBispeck, McAlpin argued, among other things, that the city was required to prove that abolishment of an assistant police chief position did result in a more efficient operation. Id. at 76. Rejecting McAlpin's argument, the First District court stated: "[W]hat the [Bispeck] court actually said was, `We believe the intent of the General Assembly was to require an appointing authority to justify a job abolishment by proving that the abolishment would result in more efficient operations.'"McAlpin, at 76, quoting Bispeck, at 30-31. (Emphasis sic.) The McAlpin court further stated: The [Bispeck] court also quoted from Ohio Adm. Code 124-7-01(A)(1), which states that "[a]ppointing authorities shall demonstrate by a preponderance of the evidence that a job abolishment was undertaken due to the lack of the continuing need for the position, a reorganization for the efficient operation of the appointing authority, for reasons of economy or for a lack of work expected to last more than twelve months." Id. at 76, quoting Bispeck, at 28 (emphasis sic). {¶ 23} Agreeing with the common pleas court's decision and quoting with approval the common pleas court, the McAlpin court stated: "[T]o adopt appellant's position that a * * * City * * * must establish prior to the abolishment of a civil service position that the abolishmentwill result in greater efficiency is to, [sic] delegate a position of the managerial and fiscal responsibility of the City government to the Civil Service Commission. Such a delegation of legislature [sic] and executive authority is inappropriate. Rather, the rule should be * * * that the Commission may approve the abolishment if it finds it is designed to promote efficiency in the future and is not an attempt to avoid civil service laws." (Emphasis sic.) Id. {¶ 24} The McAlpin court further stated: In this case, the reorganization had been in effect for only three months at the time of the hearing before the commission. The evidence did not show that efficiency had increased in that time, and it may even have decreased. Nevertheless, the commission concluded that the plan was designed to promote efficiency, and the fact that it did not work well once put in practice was not a matter for the commission but for the administration of the city. This finding was supported by a preponderance of substantial, reliable and probative evidence, and this court will not reverse it. Id. {¶ 25} We believe the court's view in McAlphin that a reviewing authority, such as the SBPR, properly may approve an abolishment if it finds that such an abolishment is designed to promote efficiency in the future and is not an attempt to avoid civil service laws is inconsistent with Bispeck. To merely require that a reviewing authority show that an abolishment was undertaken for purposes of efficiency without demonstrating efficiency gains conflicts with Bispeck's instruction that "[i]n order to determine whether any efficiency gains were accomplished by the abolishment, the board must consider the county's operation before and after the abolition." Bispeck, at 30. {¶ 26} Accordingly, we do not conclude that Monger is in error and we decline ODAS's invitation to apply McAlpin in this case. {¶ 27} At the hearing before the administrative law judge, David Choban, Allison Schaeffer, and Roger Booker, testified on behalf of ODAS. {¶ 28} David Choban, business manager for the General Services Division of ODAS, testified that on July 1, 2002, the Governor of Ohio imposed a 15-percent budgetary reduction for all state agencies, which, as applied to the General Services Division of ODAS, amounted to a reduction of $1.4 million in funding from the state's General Revenue Fund. (Tr. 11-13.) Choban testified that, due to the budgetary reduction that was ordered by the governor, the agency was faced with cutting $1.4 million from its budget with $300,000 of the $1.4 million being absorbed through personnel reduction. (Tr. 16.) {¶ 29} According to Mr. Choban, Ms. Penrod's position was funded through an allotment from the General Revenue Fund (Tr. 14), and Ms. Penrod's position could not have been funded through rotary funding, another funding source. (Tr. 22.) Mr. Choban testified that during the reorganization of the State Architect's Office, in addition to Ms. Penrd's position, other positions within the State Architect's Office were abolished. (Tr. 20.) {¶ 30} According to Mr. Choban, faced with budget cuts, the State Architect's Office reorganized the Interior Design section, within which Penrod worked, to promote efficiency. (Tr. 18.) Upon cross-examination, Mr. Choban also testified that, according to a document that he prepared, although the Interior Design section was reorganized to promote efficiency, the overall level of service following the reorganization was projected to be reduced. (Tr. 24.) {¶ 31} Mr. Choban also testified that during the reorganization process of the State Architect's Office, additional personnel were added, including project managers and energy specialists. (Id. at 32.) According to Mr. Choban, these additional persons added an additional $450,000 to the budget; however, according to Mr. Choban, these positions were funded through rotary accounts, not funding from the General Revenue Fund. (Tr. 34, 36.) {¶ 32} Allison Schaeffer, Interim Human Resources Administrator for ODAS, testified that as part of her duties she oversaw the abolishment process and worked with deputy directors and managers to assist with "fine tuning" rationales for abolishments. (Tr. 71, 72.) Ms. Schaeffer testified that "efficiency" was the rationale for the reorganization within the General Services Division. (Id. at 73.) {¶ 33} According to Roger Booker, State Architect of Ohio, prior to the abolishment of her job, Ms. Penrod was the manager for the Interior Design section and she oversaw four other staff persons. (Tr. at 41, 42.) Mr. Booker testified that a primary function of Ms. Penrod's job was supervisory. (Id. at 42.) {¶ 34} When queried about why the Facilities Planning Project Manager position was abolished, Mr. Booker testified, in part, as follows: When it became apparent that we were going to have to cut into our staffing as deeply as we did, we — we knew that we were going to have to lose a G.R.F. [General Revenue Funded] position. And that then became the decision of well, which — which one of those G.R.F. positions. We could absorb the management responsibilities and functions that Ms. Penrod was producing as a part of her functions. But we were less expert are [sic] doing the interior design, the actual hands-on, day-to-day space planning and interior design that was handled by those staff that were formerly management, Ms. Penrod. So that made the decision fairly clear and fairly obvious in our mind that we would eliminate the position that — that we could — that we could absorb the duties and responsibilities of using the remaining staff. (Tr. 49-50.) {¶ 35} Additionally, Mr. Booker testified as follows: Q. [By Assistant Attorney General Anne Thomson]: * * * And the abolishments were for the reorganization for the more efficient operation of your office. Has your office operated more efficiently since the abolishments occurred? A. It has. We've been able to maintain our projects — project load and — and had little or no complaints of any significance from our client — our clientele. Q. Have you decreased your level of services? A. We have — we probably have. Q. Okay. A. I don't like to tell my boss that, but we — we're handling pretty much the same level of projects, the same number of projects that we did a year, year-and-a-half ago with — with half as many people — Q. Okay. A. — Roughly. We've been able to touch on the projects and manage them with a certain level of care, but not with the intensity that we want or that those projects actually need. (Tr. 54.) {¶ 36} In Bispeck, the Supreme Court of Ohio instructed that "[i]n order to determine whether any efficiency gains were accomplished by the abolishment, the board must consider the county's operation before and after the abolition." Id. at 30. Thus, applying Bispeck, to determine whether any efficiency gains were accomplished by the abolishments within the State Architect's Office, including the abolishment of Ms. Penrod's position, the common pleas court was required to consider the agency's operation before and after the abolishments. {¶ 37} Mr. Booker's testimony that "[w]e've been about to touch on the projects and manage them with a certain level of care, but not with the intensity that we want or that those projects actually need," (Tr. 54), and Mr. Choban's testimony that although the Interior Design section was reorganized to promote efficiency, the overall level of service was anticipated to be reduced following the abolishments (Tr. 24), support the common pleas court's view that the reorganization did not result in increased agency efficiency. {¶ 38} Furthermore, Mr. Booker's testimony that the agency did not receive any significant complaints after the reorganization does not rise to the level of probative evidence of increased efficiency due to the abolishment of Ms. Penrod's position. See Monger, supra. {¶ 39} Based upon our review of the record, we cannot conclude that the common pleas court abused its discretion when it concluded that that there was no reliable, probative, and substantial evidence to support a claim of increased efficiency resulting from the abolishment of Ms. Penrod's job. Accordingly, we find that the common pleas court did not abuse its discretion by disaffirming the SPBR's order, and acknowledge that, absent an abuse of discretion, an appellate court may not substitute its judgment for that of a common pleas court. Therefore ODAS's assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. Bryant and Christley, JJ., concur. Christley, J., retired of the Eleventh Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution. 1 (2005) Am.Sub.H.B. No. 66 amended R.C. 124.321(D), effective September 29, 2005. 2 Ohio Adm. Code 124-7-01(A)(1), effective March 28, 1998, provides: "The appointing authority shall demonstrate by a preponderance of the evidence that a job abolishment was undertaken due to a lack of continuing need for the position based on: a reorganization for the efficient operation of the appointing authority; reasons of economy; or a lack of work expected to last one year or longer."

2016-07-06 06:42:22.169793+00

DECISION. Plaintiffs-appellants, Givaudan Roure Flavors Corp., Robert Pellegrino and Thomas Buco, collectively "Givaudan," appeal the trial court's judgment dismissing their complaint against defendant-appellee, X-Treem Products Corp. We conclude that their arguments have merit and reverse the trial court's judgment. Because X-Treem has not filed a brief, we accept Givaudan's statement of the facts as correct. App.R. 18(C);Fuhrman v. Garrison Feist Constr. Co. (Dec. 15, 2000), Hamilton App. Nos. C-000063 and C-000080, unreported. Givaudan is a corporation engaged in the business of formulating, producing and selling flavors. Pellegrino is Givaudan's senior vice president who conducts business in Cincinnati, and Buco is the vice president of Givaudan's beverage unit. X-Treem is a New York corporation engaged in the business of developing, producing and selling beverages. On May 26, 1999, Givaudan filed a complaint for declaratory judgment against X-Treem. Givaudan alleged that it had produced an order for X-Treem according to certain formulas, for which X-Treem had paid in advance because of its bad credit history. At the direction of one of X-Treem's officers, Givaudan had added more citric acid to the formula. X-Treem had produced beverages using the formula, but added citric acid during production. Consequently, X-Treem had claimed to have made one or more production runs of unsatisfactory beverages for which it alleged that Givaudan was liable. Givaudan asked the court to declare that it, along with Givaudan's other officers, directors, employees and agents, was not liable to X-Treem. Service for the complaint and summons complaint was issued by certified mail on May 27, 1999 and June 7, 1999. Givaudan subsequently filed an amended complaint on June 10, 1999. It served that complaint on Ken Marino, X-Treem's trial attorney in an action between the same parties in New York on June 10, 1999, and on X-Treem's statutory agent on June 14, 1999. Because no answer or other responsive pleading was filed, Givaudan filed a motion for a default judgment on July 22, 1999. The trial court set the matter for a hearing on August 20, 1999. At the hearing, Marino represented X-Treem by telephone. The trial court granted X-Treem a continuance until September 10, 1999, three months after service of the amended complaint, to obtain local counsel and to file a motion for leave to file an answer. On September 8, 1999, two days before the court-imposed deadline, X-Treem filed numerous documents, not in proper form. Marino or Anne Hovis, X-Treem's in-house counsel, neither of whom was admitted to practice in Ohio, signed these documents. They included a request by Hovis to be admitted to appear before the trial court pro hac vice. In a signed "certification" to the court, Hovis represented that she was "an attorney at law of the District of Columbia." Givaudan later filed an affidavit with an attached letter from the District of Columbia Bar showing that Hovis had been suspended since November 1998 for failure to pay dues. The trial court held a hearing on these issues and permitted Marino to participate on behalf of X-Treem, even though he was neither admitted to practice in Ohio nor asking to be admitted pro hac vice. Marino represented that X-Treem intended to obtain local counsel, but had not yet done so, despite the continuance that the court had already allowed. Hovis admitted that she had let her admission to the District of Columbia Bar lapse, but she represented to the Court that she was validly admitted to practice in Pennsylvania. Over Givaudan's objection, the court granted Hovis's motion for admission pro hac vice. Subsequently, Hovis filed a copy of a letter and a check that she had sent to the District of Columbia Bar for the purpose of having her membership reinstated on an inactive basis. Subsequently, Givaudan filed a motion asking the court to reconsider its decision on Hovis's admission, based on its discovery that she had been registered as a voluntarily inactive attorney in Pennsylvania since 1987. It attached to its motion a letter from the Disciplinary Board of the Supreme Court of Pennsylvania stating that she would have to petition for reinstatement to practice law in Pennsylvania. The trial court overruled the motion. Subsequently, the trial court granted a motion to dismiss that X-Treem had previously filed based on its claim that the trial court lacked personal jurisdiction over it. The court also granted Givaudan fourteen days to file a second amended complaint. After Givaudan filed its amended complaint, the trial court "presumed personal jurisdiction," but dismissed the complaint sua sponte based on the doctrine of forum nonconveniens. This appeal followed. Givaudan presents four assignments of error for review, which we address out of order. In its second assignment of error, it contends that the trial court erred when it granted X-Treem's motion to admit Hovis prohac vice. It argues that the trial court's admission of an out-of-state attorney who was not in good standing with any state bar was an abuse of discretion. This assignment of error is well taken. Out-of-state lawyers have no absolute right under state or federal law to practice in Ohio. Royal Indemnity Co. v. J.C. Penney Co. (1986),27 Ohio St.3d 31, 33, 501 N.E.2d 617, 620; In re Myers (1995),107 Ohio App.3d 489, 495, 669 N.E.2d 53, 56. Attorneys admitted in other states, but not in Ohio, may request permission from an Ohio court to appear pro hac vice. Royal Indemnity Co., supra, at 33,501 N.E.2d at 619. A court may specially admit an attorney not admitted to practice in Ohio, but in good standing in another state, to represent a person in a particular case. State v. Ross (1973), 36 Ohio App.2d 185, 188,304 N.E.2d 396, 399. The decision whether to permit an attorney to appearpro hac vice lies within the discretion of the trial court. RoyalIndemnity Co., supra, at 33, 501 N.E.2d at 619-620; Myers, supra, at 495, 669 N.E.2d at 56. The most basic and obvious requirement for the individual seeking to appear before an Ohio Court is to have a license to practice law in some other jurisdiction. In this case, the trial court granted Hovis's motion to appear pro hac vice even though she had misrepresented that she was a member of the District of Columbia Bar, after she represented that she was a member in good standing of the Pennsylvania Bar. The court ordered her to provide an affidavit to that effect, but she failed to comply with that order. Instead, she filed a copy of the check and a letter sent when she sought to be reinstated as an inactive member of the District of Columbia Bar. Givaudan then demonstrated to the court that her representation about being a member in good standing of Pennsylvania Bar was false. Hovis not only failed to show that she was a member in good standing of any bar, she and her co-counsel also completely disregarded Ohio's Rules for the Governance of the Bar, Disciplinary Rules and Rules of Civil Procedure. Under the circumstances, the trial court's decision to allow her to appear pro hac vice was an abuse of discretion. See Blakemore v.Blakemore (1983), 5 Ohio St.3d 217, 218, 450 N.E.2d 1140, 1142. Accordingly, we sustain Givaudan's second assignment of error. In its fourth assignment of error, Givaudan states that the trial court erred in permitting X-Treem to file an answer out of time and in denying Givaudan's motion for default judgment. It argues that the trial court abused its discretion in allowing X-Treem to file its answer out of time without a showing of excusable neglect. This assignment of error is well taken. If the defendant fails to file an answer within twenty-eight days after service of the summons and complaint as required by Civ.R. 12(A)(1) or otherwise fails to appear, the trial court may enter a default judgment against the defendant. Civ.R. 55(A); Davis v. Immediate MedicalServices, Inc. (1997), 80 Ohio St.3d 10, 14, 684 N.E.2d 292, 296. Civ.R. 6(B) allows for an extension of time to file a late pleading, but only upon the filing of a motion and a showing of excusable neglect.Davis, supra, at 14, 684 N.E.2d at 296; Miller v. Lint (1980),62 Ohio St.2d 209, 214, 404 N.E.2d 752, 755. When determining whether neglect in failing to file a timely answer is excusable or inexcusable, the trial court must consider all of the surrounding facts and circumstances. Griffey v. Rajan (1987),33 Ohio St.3d 75, 79, 514 N.E.2d 1122, 1126; Kenwood Office Associatesv. Maryland Regional Impotence Ctr., Inc. (Dec. 26, 1997), Hamilton App. No. C-970049, unreported. Inexcusable neglect is conduct that falls substantially below what is reasonable under the circumstances. State exrel. Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470, 473, 605 N.E.2d 37,39; Kenwood Office Associates, supra. While generally the decision whether neglect is excusable or inexcusable lies within the trial court's discretion, that discretion is not unlimited. The defendant must make some affirmative showing of excusable neglect before obtaining an extension of time to answer the complaint. Davis, supra, at 14,684 N.E.2d at 296; Miller, supra, at 214, 404 N.E.2d at 755. In this case, X-Treem made absolutely no showing of excusable neglect. It made its "appearance" two months out of time through a New Jersey attorney who did not represent X-Treem in the case and through the filing of numerous documents that did not meet the requirements of the Civil Rules. See Civ.R. 7; Perez v. Bush (C.P. 1993), 63 Ohio Misc.2d 423,427, 637 N.E.2d 192, 194-195. Later, X-Treem filed a motion to dismiss, signed by Hovis, a person who was not validly admitted to any bar at the time of her signature. See Civ.R. 11. X-Treem's conduct in failing to comply at all with the Civil Rules fell far below what was reasonable under the circumstances and should have subjected it to a default judgment. See Davis, supra, at 14-15, 684 N.E.2d at 296-297; Miller,supra, at 214, 404 N.E.2d at 755; Kenwood Office Associates, supra. Consequently, the trial court abused its discretion in granting X-Treem leave to answer or otherwise plead and in denying Givaudan's motion for default judgment. See Turner v. Alexander (1995), 107 Ohio App.3d 853,858, 669 N.E.2d 565, 568. We sustain Givaudan's fourth assignment of error, reverse the judgment of the trial court and remand the case with instructions for the trial court to enter a default judgment in Givaudan's favor. Givaudan's other two assignments of error are moot, and we, therefore, decline to address them. See App.R.12(A)(1)(c). ____________________________ Doan, P.J., Gorman and Shannon, JJ. Raymond E. Shannon, retired, from the First Appellate District, sitting by assignment.

2016-07-06 06:42:22.449425+00

Young

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 309 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 310 Defendant-appellant, Jerry R. Lawson, appeals a decision of the Clermont County Court of Common Pleas in which the court dismissed his petition for postconviction relief without holding an evidentiary hearing. On April 26, 1988, a Clermont County jury convicted Lawson of two counts of aggravated murder with capital specifications, two counts of kidnapping, one count of aggravated robbery, and two counts of intimidating a witness. On April 28, 1988, the jury recommended the death sentence on the aggravated murder counts. The trial court approved the jury's recommendation on May 3, 1988, and sentenced Lawson to death for the aggravated murder of Timothy Martin. Lawson's convictions and sentence were upheld on direct appeals to this court, *Page 311 State v. Lawson (June 4, 1990), Clermont App. No. CA88-05-044, unreported, 1990 WL 73845, and to the Ohio Supreme Court,State v. Lawson (1992), 64 Ohio St.3d 336, 595 N.E.2d 902. The United States Supreme Court denied Lawson's petition for writ of certiorari on March 29, 1993. Lawson v. Ohio (1993), 507 U.S. ___, 113 S.Ct. 1653, 123 L.Ed.2d 273. On December 15, 1993, Lawson filed his first petition to vacate or set aside sentence under R.C. 2953.21. The petition contained forty-one claims for relief and was accompanied by numerous documents attached as exhibits. On February 14, 1994, the state filed a motion for judgment on Lawson's petition. The state asserted that no evidentiary hearing was necessary because all issues Lawson raised in his petition could be determined from the existing record. Lawson filed an opposing memorandum, in which he requested a six-month continuance to conduct discovery. The trial court denied Lawson a continuance and refused to order an evidentiary hearing on his petition. On June 8, 1994, the court filed a judgment entry and separate decision dismissing Lawson's petition for postconviction relief. On appeal to this court, Lawson sets forth six assignments of error. For purposes of analysis, the assigned errors will be rearranged where appropriate. Under Lawson's first assignment of error, he complains that the lower court erred in dismissing his petition without first holding an evidentiary hearing. Lawson argues that certain affidavits attached to his petition establish evidence dehors the record. Lawson also points out that the lower court concluded that many of his claims were barred under the doctrine of res judicata, and suggests that res judicata was not appropriate in this case. This first assignment of error addresses issues that are presented in greater detail in Lawson's third, fourth, and sixth assignments of error. At this point, however, we point out that a petitioner in a postconviction proceeding is not automatically entitled to an evidentiary hearing. State v. Jackson (1980),64 Ohio St.2d 107, 18 O.O.3d 348, 413 N.E.2d 819 (petitioner bears the initial burden in a post-conviction proceeding to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and also that the defense was prejudiced by counsel's ineffectiveness). Before granting a hearing, the trial judge must determine from the petition, the supporting affidavits, and the record whether there are substantive grounds for relief. State v. Coleman (Mar. 17, 1993), Hamilton App. No. C-900811, unreported, at 2, citing R.C. 2953.21(C), 1993 WL 74756. Lawson's first assignment of error is overruled to the extent that issues therein are not more fully addressed under subsequent, more specific assignments of error. *Page 312 Under Lawson's fifth assignment of error, he argues that the trial court erred in granting the state's motion for judgment before the state had filed an answer or before the issues had been "made up." R.C. 2953.21(D) provides: "Within ten days after the docketing of the petition, or within such further time as the court may fix for good cause shown, the prosecuting attorney shall respond by answer or motion. Within twenty days from the date the issues are made up, either party may move for summary judgment. The right to such judgment shall appear on the face of the record." The state, in compliance with R.C. 2953.21(D), filed a motion for judgment within ten days after the court docketed Lawson's petition. The state attached to this motion a memorandum in which the state addressed each of Lawson's forty-one claims for relief. This court concludes that the issues were "made up" within the meaning of R.C. 2953.21(D) when the trial court granted the state's motion for dismissal. Lawson's fifth assignment of error is overruled. Under his second assignment of error, Lawson argues that the trial court failed to make findings of fact and conclusions of law as required by R.C. 2953.21(C). We disagree. R.C. 2953.21(C) provides in pertinent part: "Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. * * * If the court dismisses thepetition, it shall make and file findings of fact andconclusions of law with respect to such dismissal." (Emphasis added.) On June 8, 1994, the trial court issued a two-line entry dismissing Lawson's petition. That day, the trial court also issued a fifteen-page decision which addressed each of Lawson's forty-one claims. Lawson complains that the court's entry contains no reference to findings of fact and asserts that the court's decision did not contain specific findings. Contrary to Lawson's suggestion in his brief, R.C. 2953.21(C) does not require the court to refer to its findings of fact and conclusions of law in its entry. Further, a document's language, not its label, determines whether it satisfies the requirements of R.C. 2953.21. State ex rel. Carrion v. Harris (1988), 40 Ohio St.3d 19,20, 530 N.E.2d 1330, 1331. Although the lower court's fifteen-page written decision was not captioned "findings of fact and conclusions of law," it was more than adequate to apprise both Lawson and this court of its reasoning in denying Lawson's petition. See State v. Mapson (1982), 1 Ohio St.3d 217,219, *Page 313 1 OBR 240, 242-243, 438 N.E.2d 910, 912-913; see, also, State v.Greer (Oct. 28, 1992), Summit App. No. 15217, unreported, at 7, 1992 WL 316350, motion to certify record overruled (1993),66 Ohio St.3d 1446, 609 N.E.2d 172. The lower court's written decision constituted "findings of fact and conclusions of law" and therefore complied with R.C. 2953.21(C). Lawson's second assignment of error is overruled. Under Lawson's sixth assignment of error, he argues that the lower court erroneously relied upon the doctrine of resjudicata in ruling against many of the claims in his petition. Lawson points out that the defense of res judicata may not be raised by motion to dismiss under Civ.R. 12(B). See State exrel. Freeman v. Morris (1991), 62 Ohio St.3d 107, 109,579 N.E.2d 702, 703. Although the Rules of Civil Procedure generally apply to postconviction proceedings, dismissals rendered under R.C.2953.21 are different from those made under Civ.R. 12(B).State v. Franklin (Jan. 25, 1995), Hamilton App. No. C-930760, unreported, at 6, 1995 WL 26281. For example, unlike Civ.R. 12(B), R.C. 2953.21 requires the court to look beyond the petition and response and specifically allows the prosecution to respond by motion rather than answer. Because postconviction proceedings are statutorily created, specific requirements set out by statute take priority where they conflict with the Civil Rules. Greer, supra, Summit App. No. 15217, at 4. On the other hand, the Ohio Supreme Court has explicitly held that a trial court may dismiss a petition for postconviction relief without a hearing where the doctrine of res judicata applies. State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the syllabus, provides: "Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment." The trial court could properly rely on the doctrine of resjudicata in dismissing many of Lawson's claims in his petition. Lawson's sixth assignment of error is overruled. Lawson's third and fourth assignments of error are related. Under his third assignment of error, Lawson claims that his state and federal constitutional rights were violated by imposition of the death penalty where the jury was not specifically instructed that it could consider Lawson's mental state as a mitigating factor. Under Lawson's fourth assignment of error, he asserts that he was denied effective assistance of counsel because his trial counsel did not present *Page 314 evidence that he suffered from a mental disease or defect during the mitigation phase of sentencing, or request a jury instruction in that regard. R.C. 2929.04(B) provides for the presentation of all mitigating evidence, including under subsection (3): "Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law[.]" During the guilt phase of Lawson's trial, trial counsel presented a defense of not guilty by reason of insanity. The defense had called Dr. John Peter Lutz, a psychiatrist, who testified that Lawson suffered from "brief reactive psychosis." Trial counsel, however, did not specifically make this argument during the mitigation phase of sentencing. During the mitigation phase, trial counsel did call a psychologist, Dr. David Chiappone, who detailed a psychological profile he had conducted on Lawson. Dr. Chiappone testified that based upon all of the psychological data, Lawson may have believed at the time of the offense that his victim was a threat to him and his family. Trial counsel also called and questioned several witnesses regarding Lawson's personality and intelligence. Central to Lawson's third and fourth assignments of error is his assertion that he has come forward with new evidencedehors the record. In support of his claim that trial counsel was deficient and that the trial court should have specifically instructed the jury that it could consider his mental condition, Lawson attached certain exhibits to his petition. Lawson presented affidavits from Dr. Lutz, the defense expert during the trial, Dr. Roger H. Fisher, a clinical psychologist who testified for the state during the guilt phase of the trial, Julie S. Brams, another clinical psychologist not previously involved in the case, and John Woliver, one of Lawson's two trial attorneys. Dr. Fisher asserted that although his findings did not support a determination that Lawson was legally insane, they would have been useful as mitigating evidence. Dr. Fisher complained that the defense never approached him regarding the sentencing proceeding. Dr. Brams also criticized Lawson's medical expert and trial counsel in her affidavit. Dr. Lutz indicated in his affidavit that conditions foundational to his diagnosis were inadequately presented. Attorney John Woliver, in his affidavit, stated that he "did not know" why the defense team did not request an instruction on the mitigating factor of Lawson's mental state. The only specific example of evidence dehors the record that Lawson cites in his appellate brief concerns Lawson's alleged "`huffing' practices." Dr. Brams related that Lawson described to her assistant his practice of "`huffing' solvents and propellants, in particularly [sic] Right Guard deodorant." The doctor went on to state that huffing can "quickly lead to neurological damage * * *." Dr. Lutz stated in his affidavit that he has come in contact with patients who have *Page 315 "huffed," and "[i]n a short period of time, with only moderate use, they develop numerous signs and symptoms of organic brain syndrome."1 There is no indication that Lawson's "huffing" practice predated his victim's murder. The presentation of competent, relevant, and material evidence dehors the record may defeat the application of resjudicata. See State v. Smith (1985), 17 Ohio St.3d 98, 101, 17 OBR 219, 221, 477 N.E.2d 1128, 1131-1132, fn. 1. However, a petition for postconviction relief is not the proper vehicle to raise issues that were or could have been determined on direct appeal. State v. Perry, supra, 10 Ohio St.2d at 182, 39 O.O.2d at 193, 226 N.E.2d at 109. "[E]vidence presented outside the record must meet some threshold standard of cogency; otherwise it would be too easy to defeat the holding of Perry by simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner's claim beyond mere hypothesis and a desire for further discovery." Coleman,supra, Hamilton App. No. C-900811, at 7. To overcome the resjudicata bar, evidence offered dehors the record must demonstrate that the petitioner could not have appealed the constitutional claim based upon information in the original record.Franklin, supra, Hamilton App. No. C-930760, at 7. We are unconvinced that the issues Lawson raised could not have been fairly determined without resort to evidencedehors the record. See State v. Cole (1982), 2 Ohio St.3d 112, 2 OBR 661, 443 N.E.2d 169, syllabus. Information contained in Lawson's exhibits do not contain new evidence that was unavailable in the original record. Instead, the affiants have basically repackaged information already available in the record in order to second-guess Lawson's trial counsel. In regard to his third assignment of error, Lawson cites a number of cases in which trial courts were reversed forexcluding mitigating evidence. However, the Ohio Supreme Court has held that the trial court need only instruct the jury on those mitigating factors raised by the defense. State v. Hicks (1989), 43 Ohio St.3d 72, 77, 538 N.E.2d 1030, 1036, fn. 3, reaffirming State v. DePew (1988), 38 Ohio St.3d 275, 289,528 N.E.2d 542, 557. In this case, the trial court did not refuse to allow evidence that Lawson may have suffered from a mental disease or defect. Instead, the trial court gave the jury an instruction on mitigation which had been submitted by Lawson. *Page 316 In regard to Lawson's fourth assignment of error, this court reaffirms that generally, where a defendant is represented by new counsel on appeal, a claim of ineffective assistance of trial counsel is capable of review and therefore may be barred under the doctrine of res judicata from being raised in a later postconviction relief petition. State v. Greer, supra, Summit App. No. 15217, at 5, citing Cole, supra, 2 Ohio St.3d 112, 2 OBR 661, 443 N.E.2d 169, syllabus. This court also notes that Lawson's trial counsel did present evidence that Lawson suffered from a mental disease or defect during the guilt phase. At the end of the sentencing proceeding, the court instructed the jury that it was to consider all the evidence adduced in the earlier proceeding, as well as any new evidence presented during sentencing. The trial court was required to instruct the jury on those applicable mitigating factors presented by the defense. It did so. Lawson has failed to demonstrate through the record or through additional evidence that his trial counsel's conduct was either ineffective or prejudicial. Further, Lawson did not raise these claims on direct appeal, and they were barred by resjudicata. Lawson's third and fourth assignments of error are overruled. In conclusion, after reviewing the record, and Lawson's petition for relief, including each attached exhibit, we are convinced that the trial court did not err in dismissing Lawson's postconviction petition without ordering an evidentiary hearing. The petition, the files and the record of the case demonstrate that Lawson is not entitled to postconviction relief. The judgment is affirmed. Judgment affirmed. KOEHLER and POWELL, JJ., concur. 1 Dr. Fisher also asserted that the defense was inadequate because it did not have Lawson tested for organic brain damage. However, Dr. Chiappone testified during the mitigation phase of sentencing that he had performed a number of tests on Lawson including a test of "organistic original brain damage." *Page 317

2016-07-06 06:42:22.532182+00

Christley

OPINION This is an accelerated calendar appeal. Appellant, Carol A. Sopkovich, the administratrix of the estate of Michael J. Lexie, appeals from a final judgment of the Trumbull County Court of Common Pleas granting appellee, Ohio Edison Company, summary judgment. For the reasons that follow, we affirm the decision of the trial court. At the time of the accident, Michael J. Lexie ("Lexie") was employed by Morakis Sons Industrial Painting Company, Inc. ("Morakis Sons"). He sustained serious injuries after coming into contact with high voltage electricity while painting an electric substation owned and operated by appellee. Appellee had hired Morakis Sons, an independent contractor, to perform the painting work on a number of structures, including the substation in Masury, Ohio where the accident occurred. *Page 580 As a result of his injuries, Lexie filed a complaint in the Trumbull County Court of Common Pleas on July 14, 1989. In the complaint, Lexie alleged, among other things, that appellee had acted negligently in failing to: (1) provide a safe place of employment; (2) eliminate known hazards; (3) adequately supervise the work activities; (4) install proper safety devices; and (5) de-energize the electrical lines involved in the accident. Appellee filed an answer on August 4, 1989 denying the allegations. In February 1991, appellee filed a motion for summary judgment in which it argued that it owed no duty to Lexie because he had been working for an independent contractor when the accident occurred, and because painting electric substations was an inherently dangerous activity. In addition, appellee argued that it had not actively participated in the painting because Morakis Sons had directed and controlled the work of the painting crew. On June 26, 1991, Lexie filed a brief in opposition in which he argued that appellee's control over the activation and de-activation of the electrical conductors had amounted to active participation by appellee in the painting of the Masury substation. The trial court denied appellee's motion in September 1991 and set the case for trial. However, after numerous delays, appellee filed a motion with the trial court in August 1995 asking the court to reconsider the denial of its motion for summary judgment.1 Appellant did not file a response to appellee's motion to reconsider. The trial court subsequently issued a judgment entry granting summary judgment in favor of appellee. Appellant filed an appeal of the trial court's decision with this court. In reversing the judgment of the trial court, we determined that there were two separate ways in which a duty of care to an independent contractor under an active participation analysis could be created: (1) active participation through the direction or control of the performance of the work activities; and (2) active participation through the exertion or retention of control over a critical variable in the working environment. After reviewing the record, we held that appellee was entitled to summary judgment on the question of whether it had directed or controlled the performance of Lexie's job activities. However, we also held that appellee was not entitled to summary judgment as to the entire duty of care owed to an independent contractor because a question remained as to whether appellee had created a duty of care by retaining and exerting control over a critical aspect of the working environment.Lexie v. Ohio Edison Co. (Dec. 13, 1996), Trumbull App. No. 96-T-5384, unreported, 1996 WL 761223. *Page 581 We subsequently found our judgment on the issue of active participation in conflict with the Ninth Appellate District and its decision in DeHassv. Ohio Edison Co. (Sept. 15, 1993), Summit App. No. 15970, unreported, 1993 WL 347059. As a result, we certified the conflict to the Supreme Court of Ohio for a determination. In affirming our decision, the Supreme Court held that "active participation giving rise to a duty of care may be found to exist where a property owner either directs or exercises control over the work activities of the independent contractor's employees, or where the owner retains or exercises control over a critical variable in the workplace."Sopkovich v. Ohio Edison Co. (1998), 81 Ohio St.3d 628, 643. Based on this holding, the Supreme Court went on to conclude that the evidentiary materials in the record demonstrated that appellee did actively participate in the work by retaining and exercising control over a critical aspect of the job, and that as a result, appellee owed the independent contractor's employee, Lexie, a duty of care. Id. Specifically, the Supreme Court found that appellee's "participation in [the activity] was clearly limited to the tasks of de-electrification of certain conductors in the work area and the dissemination of correct information [to the independent contractor] concerning which conductors were energized and which had been de-activated." Id. Accordingly, appellee's ultimate liability, if any, could only be predicated on a breach of one or both of the assumed duties. If appellee "properly de-activated the conductors it had promised to de-activate, andaccurately communicated with [Morakis Sons] and the painters as to which conductors were activated and which were not," the company discharged any duty of care owed to Lexie. (Emphasis added.) Id. at 643-644. On remand, appellee filed a new motion for summary judgment on February 19, 1999, arguing that although it may have owed Lexie a duty of care, there was no evidence that the company had breached that duty. Appellant countered by filing a brief in opposition to summary judgment. According to appellant, the methods employed by appellee in communicating the necessary information to the paint crew were inadequate to inform them of which areas of the substation were de-activated and safe; hence, the communication was inaccurate. Appellant also maintained that instead of verbally communicating to the independent contractor and the paint crew which areas were energized, appellee should have marked those areas with yellow tape or flags as the company had done on previous jobs on which Lexie had worked. The trial court granted appellee's motion for summary judgment on October 22, 1999. In doing so, the trial court concluded that the undisputed evidence showed that appellee had deactivated the conductors it had promised to deactivate, and that it had accurately communicated this information both to the *Page 582 independent contractor, Morakis Sons, and in turn, to the workers painting the substation. From this judgment entry, appellant filed a timely notice of appeal with this court, asserting the following assignment of error for our review: "The trial court erred to the prejudice of Plaintiff-Appellant by granting summary judgment in favor of the Defendant-Appellee." Under this single assignment of error, appellant claims that the trial court erred in granting appellee summary judgment because there were questions of fact with respect to whether appellee had breached its duty to accurately communicate which areas of the substations were de-energized. It is appellant's position that the "vague verbal instructions" given by an employee of appellee who was on the job site for this purpose, without more, were inadequate to inform the painters of the independent contractor of precisely which sections were safe to work within. Essentially, appellant is arguing that while Lexie was given correct information on which areas had been de-energized, the information was confusing, ineffective, and not in compliance with certain codes, practices, or customs. At the outset, we note that summary judgment is proper when: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come but to one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in his favor. Civ.R. 56(C); Leibreich v. A.J. Refrigeration, Inc. (1993),67 Ohio St.3d 266, 268. Material facts are those facts that might affect the outcome of the suit under the governing law of the case. Turner v. Turner (1993),67 Ohio St.3d 337, 340, citing Anderson v. Liberty Lobby, Inc. (1986),477 U.S. 242, 248. To determine what constitutes a genuine issue, the court must decide whether the evidence presents a sufficient disagreement to require submission to a jury, or whether it is so one-sided that one party must prevail as a matter of law. Turner at 340. The party seeking summary judgment on the grounds that the nonmoving party cannot prove its case bears the initial burden of informing the trial court of the basis for the motion and of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential elements of the nonmoving party's claims. Dresherv. Burt (1996), 75 Ohio St.3d 280. The moving party must be able to point specifically to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that *Page 583 the nonmoving party has no evidence to support the nonmoving party's claim. Id. at 293. If this initial burden is met, the nonmoving party has a reciprocal burden to respond, by affidavit or as otherwise provided in the rule, in an effort to demonstrate that there is a genuine issue of fact suitable for trial. Id. If the nonmoving party fails to do so, the trial court may enter summary judgment against that party if appropriate. Id. As noted by the Supreme Court in Sopkovich, supra, if appellee properly de-activated the conductors it had promised to de-activate, and itaccurately communicated this information to the independent contractor's painters, appellee discharged any duty of care owed to Lexie. Sopkovich at 643-644. However, if appellee failed to de-activate the conductors it had promised to de-activate, or if the company inaccurately informed the independent contractor as to which conductors were or were not de-activated, appellee would have breached its duty to Lexie. After an exhaustive review of the record, this court concludes that appellee did meet its duty of care owed to the independent contractor and Lexie.2 The record shows that as a result of the nature of the system, appellee could not shut off the entire flow of electricity through the substation during the time the painters were working. Appellee, however, was able to shut down portions of the substation for a limited period of time without disrupting the service of its customers. To accomplish this, a representative of appellee, Patrick Cambell ("Cambell"), would consult with Morakis Sons' on-site supervisor, James Morakis ("Morakis"). Campbell would inform Morakis of which electrical lines were still active and which ones had been de-activated. Morakis, in turn, would then convey this information to the painters. Campbell then remained at the substation during the painting to answer any further questions. On the day of the accident, it is undisputed that Lexie was instructed by Morakis to paint several I-beams in a de-energized area located approximately thirty to forty feet above the ground. Morakis testified that Campbell had told him what areas were energized and which areas were not, and that he relayed this information to his employees. Moreover, prior to resuming work after his lunch break, Lexie had a conversation with Campbell as to whether or not it was safe to paint in a particular area. *Page 584 Campbell informed Lexie that the area had been de-energized, and that he should avoid a nearby section of the substation because it was still active. While no one saw the accident, evidence in the record shows that people at the substation saw Lexie working in the deactivated area. However, when Lexie fell to ground after being shocked, his body landed under an area that had been designated as hot. Although he does not remember the incident, it is apparent that Lexie mistakenly entered into an area that was energized. There was undisputed evidence establishing that appellee had communicated with Morakis, and even Lexie, which areas were energized and which areas were not. Accordingly, there is no dispute of fact over whether appellee had properly de-energized the areas which it had promised, or over whether this information was accurately communicated to Morakis and his crew, in particular Lexie. Further, appellant does not contend that Lexie did not know which areas had been deactivated prior to resuming work after lunch. Indeed, Lexie's only explanation for the accident was that he had become "confused." Appellant's position is that the Supreme Court's use of the termaccurately must be interpreted to mean that appellee should have conveyed the information in a better way, and that the electric company should have taken further precautions to avoid serious injury. We, however, decline to interpret the term accurately to mean anything other thancorrectly. The immediate issue only involves the duty that exists between an owner/general contractor and an independent contractor. That duty is arguably significantly different than it would be if Lexie had been an employee of appellee and not of Morakis Sons. Whether or not there was a more effective way of communicating the necessary information to the independent contractor or his painters is ultimately immaterial. There was no dispute that Lexie and his employer, Morakis Sons, were made aware of the activated and de-activated areas on several occasions. The fact that Lexie was subsequently injured, by itself, does not automatically demonstrate a breach of duty by appellee to the independent contractor or its employees. Based on the foregoing analysis, appellant's sole assignment of error is without merit. As a result, the judgment of the trial court is affirmed. ______________________________________ JUDGE JUDITH A. CHRISTLEY FORD, P.J., concurs, O'NEILL, J., dissents. 1 The record shows that Lexie died during this delay and that appellant was substituted as the plaintiff in the action. 2 Because appellant does not challenge the trial court's conclusion that appellee had properly de-activated the conductors the electric company said it would, we will confine our discussion to the issue of whether appellee accurately communicated this information to Morakis and/or the painters. *Page 585

2016-07-06 06:42:24.048184+00

Bryant

{¶ 1} The plaintiffs-appellants, Eldon and Charlotte Eulrich, appeal from the judgment of the Logan County Common Pleas Court granting summary judgment in favor of the defendant-appellee, Weaver Brothers, Inc. ("Weaver"). {¶ 2} The Eulrichs own property and a residence located in West Mansfield, Logan County, Ohio, which they purchased in 1982. After a fire destroyed their home in 1987, the Eulrichs constructed a new residence on the same property. Located approximately one half mile to the west of the Eulrich property is an egg farm, known as Heartland Quality Egg Farms ("Heartland"), which produces eggs, chicken manure, and egg rinse water for sale. Between 1985 and 1995, Weaver and a partner owned Heartland, and in 1995, Weaver bought out its partner and gained sole ownership. Weaver then applied for, and was granted, agricultural-district status from the Logan County Auditor. {¶ 3} Since 1995, Weaver has renovated Heartland and added several poultry houses, so that the facility now houses approximately one million chickens. Heartland sells the chicken manure as fertilizer to local farmers, who are responsible for spreading the manure on their property and abiding by governing law. The excess egg rinse water is pumped into a lagoon and then onto a neighboring farm for use as fertilizer. {¶ 4} The Eulrichs claim that as a result of Heartland's operations, their property has been exposed to excessive flies, beetles, odor, dust, feathers, other noxious odors and material, and spores containing histoplasmosis. The Eulrichs also claim that Heartland's operations have polluted the ground water. The Eulrichs claim that due to these conditions, they have suffered the loss and quiet enjoyment of their property, as well as a loss in market value. {¶ 5} On May 30, 2003, the Eulrichs filed a complaint against Weaver alleging two claims of nuisance, two claims of negligence, and one claim of trespass. The Eulrichs sought a permanent injunction to prevent further nuisance and trespass to their land and damages in excess of $25,000. On June 27, 2003, Weaver filed its answer and affirmative defenses in response to the Eulrichs' complaint. On February 25, 2004, the Eulrichs filed a supplemental complaint, adding a claim for loss of consortium on behalf of Charlotte Eulrich. Weaver failed to file an amended or supplemental answer, but filed a motion for summary judgment on May 14, 2004. The Eulrichs filed a response to the motion on June 2, 2004, and on August 4, 2004, the trial court granted summary judgment in favor of Weaver on the issues of nuisance and negligence and denied summary judgment on the issues of trespass and loss of consortium. On August 24, 2004, the Eulrichs *Page 315 waived their claims against Weaver, except the claim for trespass, which was tried to the court. On September 2, 2004, the trial court entered judgment in favor of Weaver as to the trespass claim. {¶ 6} The Eulrichs appeal the portion of the trial court's August 4, 2004 judgment, which granted summary judgment on the nuisance claims to Weaver. The Eulrichs assert the following assignments of error: The trial court erred in granting summary judgment on an affirmative defense that was never pled. The trial court erred in granting summary judgment on the basis of a statute which was enacted after appellants purchased their land and which had the effect of depriving them of an interest in their property to the benefit of an adjoining land owner. The trial court erred in granting summary judgment on the basis that appellee was protected from nuisance suits by a statute which required appellee to file for an exemption as an agricultural district and such filing was not done until appellants had lived in their home for nearly 15 years. {¶ 7} We begin by noting that a summary judgment is reviewed under the de novo standard of review. Lorain Natl. Bank v.Saratoga Apts. (1989), 61 Ohio App.3d 127, 129, 572 N.E.2d 198. Thus, a summary judgment will be affirmed only when there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law, and "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, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor." Civ.R. 56(C). {¶ 8} The moving party may file its motion for summary judgment "with or without supporting affidavits." Civ.R. 56(A). However, "[a] party seeking summary judgment must specifically delineate the basis upon which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond." Mitseff v. Wheeler (1988), 38 Ohio St.3d 112,526 N.E.2d 798, syllabus. Once the moving party demonstrates that it is entitled to summary judgment, the burden shifts to the nonmoving party to show why summary judgment is inappropriate. See Civ.R. 56(E). If the nonmovant fails to respond, or fails to support its response with evidence of the kind required by Civ.R. 56(C), the court may enter summary judgment in favor of the moving party. Civ.R. 56(E). Otherwise, summary judgment should be granted with caution, with a court construing all evidence and deciding any doubt in favor of the nonmovant. Murphy v.Reynoldsburg (1992), 65 Ohio St.3d 356, 360, 604 N.E.2d 138. *Page 316 {¶ 9} In their first assignment of error, the Eulrichs contend that immunity under R.C. 929.04 is an affirmative defense that must be pleaded in Weaver's responsive pleading and that its failure to do so has waived the defense. Weaver argues that R.C.929.04 is a complete defense to liability, which is equivalent to the defense found in Civ.R. 12(B)(6), failure to state a claim upon which relief may be granted, and may be raised as late as trial. We cannot agree with Weaver. {¶ 10} Civ.R. 12(B) states: Every defense, in law or fact, to a claim for relief in any pleading, * * * shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can be granted. * * *. When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. {¶ 11} In ruling on a Civ.R. 12(B)(6) motion, the trial court must accept all allegations set forth in the complaint as true. Greeley v. Miami Valley Maint. Contrs., Inc. (1990),49 Ohio St.3d 228, 229, 551 N.E.2d 981. In order to grant the motion to dismiss, "`it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.'" (Emphasis added.) Id. at 230, 551 N.E.2d 981, quotingO'Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.3d 2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. By converting a Civ.R. 12(B)(6) motion to a motion for summary judgment, the trial court may consider matters outside the complaint. However, the staff notes to Civ.R. 12(B) state: [T]he procedure [for converting a 12(B)(6) motion to a Rule 56 motion] is optional with the court, and presumably in most situations a court should exclude matters outside the pleadings thereby making it necessary for defendant to move formally for summary judgment under Rule 56 in order to present matters outside the pleadings. {¶ 12} In this case, the Eulrichs filed their complaint, which clearly included two claims for nuisance, and Weaver filed an answer, which failed to set forth the immunity defense provided under R.C. 929.04. After the Eulrichs filed their amended complaint, Weaver failed to file a responsive pleading. Instead, Weaver filed a motion for summary judgment and asserted R.C. 929.04 as a defense approximately two months after the amended complaint was filed. This case presents the scenario envisioned in the staff notes to Civ.R. 12(B) in that Weaver failed to file an amended answer or motion to dismiss based on Civ.R. 12(B), but instead formally filed a motion for summary judgment. The problem with filing *Page 317 the motion for summary judgment is that Ohio law prohibits a defendant from asserting an affirmative defense for the first time in a motion for summary judgment. Carmen v. Link (3d Dist. 1997), 119 Ohio App.3d 244, 250, 695 N.E.2d 28. {¶ 13} Civ.R. 8(C) governs the pleading of affirmative defenses and states, "In pleading to a preceding pleading, a party shall set forth affirmatively * * * any * * * matter constituting an avoidance or affirmative defense." The Ohio Supreme Court has interpreted Civ.R. 8(C) in dicta and noted, While the word "shall" indicates the firmness of this pleading requirement, Civ.R. 8 does not state a time period within which an affirmative defense must be pleaded or the effect of failing to plead an affirmative defense. However, it is clear that some sort of concept of "waiver" is embodied in the requirement of Civ.R. 8(C) that a party "shall" raise any affirmative defenses in his answer. Carmen, 119 Ohio App.3d at 250, 695 N.E.2d 28, quoting Hooverv. Sumlin (1984), 12 Ohio St.3d 1, 3-4, 12 OBR 1,465 N.E.2d 377. There are only three methods to assert an affirmative defense: a prepleading Civ.R. 12(B) motion to dismiss, a responsive pleading filed under Civ.R. 8(C), or amendment pursuant to Civ.R. 15. Id., citing Mills v. Whitehouse TruckingCo. (1974), 40 Ohio St.2d 55, 69 O.O.2d 350, 320 N.E.2d 668, syllabus. In this case, Weaver failed to raise the R.C. 929.04 defense in its initial answer under Civ.R. 8(C), it failed to file any amended responsive pleading under Civ.R. 15(A), and it failed to file a formal Civ.R. 12(B) motion for dismissal. Therefore, Weaver has failed to properly assert the affirmative defense set forth in R.C. 929.04. {¶ 14} As a final matter, we note that the above analysis applies only if the immunity provided by R.C. 929.04 is an affirmative defense. We find that the statute does provide an affirmative defense rather than a complete defense. R.C. 929.04 states: In a civil action for nuisances involving agricultural activities, it is a complete defense if: (A) The agricultural activities were conducted within an agricultural district; (B) Agricultural activities were established within the agricultural district prior to the plaintiff's activities or interest on which the action is based; (C) The plaintiff was not involved in agricultural production; and (D) The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agricultural practices. Weaver argues that the statute clearly provides a complete defense that need not be pleaded or proven and relies on our decision in Harmon v. Adams, 3d Dist. No. 14-01-27, 2002-Ohio-2103, 2002 WL 987914. However, in Harmon, we did *Page 318 not say that R.C. 929.04 is not an affirmative defense. We noted, "The extension of this complete defense to qualified entities is essentially a legislative determination that conduct falling within the purview of the statute, regardless of its frequency or intensity, is not a nuisance as a matter of law." Id., supra, at ¶ 22. While the statute does provide a complete defense, the defendant must show compliance with the statute before benefiting from those defenses and immunities. {¶ 15} The Ohio Supreme Court has defined an affirmative defense as a new matter which, assuming the complaint to be true, constitutes a defense to it. "An affirmative is any defensive matter in the nature of a confession and avoidance. It admits that the plaintiff has a claim (the `confession') but asserts some legal reason why the plaintiff cannot have any recovery on that claim (the `avoidance')." State ex rel. Plain Dealer Publishing Co. v. Cleveland (1996),75 Ohio St.3d 31, 33, 661 N.E.2d 187, quoting 1 Klein, Browne Murtaugh, Baldwin's Ohio Civil Practice (1988) 33, T 13.03. In this case, assuming the allegations in the Eulrichs' complaint to be true, Weaver would be protected if it could show that it has satisfied the provisions in the statute. Clearly, R.C. 929.04 provides an affirmative defense against nuisance actions to qualified agricultural districts. This result is consistent with our holding in Harmon, which did not address the issue presented in this case. {¶ 16} The Ohio Supreme Court has long held that "[a]ffirmative defenses other that those listed in Civ.R. 12(B) are waived if not raised in the pleadings or in an amendment to the pleadings." Jim's Steak House, Inc. v. Cleveland (1998),81 Ohio St.3d 18, 21, 688 N.E.2d 506, citing Civ.R. 8 and 15. See, also, Mossing v. Dye, 3d Dist. No. 13-02-13, 2002-Ohio-4689,2002 WL 31006140, at ¶ 9. Weaver failed to assert immunity under R.C. 929.04 in its answer. Weaver also failed to file an amended responsive pleading and improperly brought its defense for the first time in a motion for summary judgment. Therefore, Weaver has waived the affirmative defense provided by R.C. 929.04. The first assignment of error is sustained. {¶ 17} This court having sustained appellant's first assignment of error, the remaining assignments of error are moot. The judgment of the Logan County Common Pleas Court is reversed, and this cause is remanded for further proceedings. Judgment reversed and cause remanded. CUPP, P.J., and ROGERS, J., concur. *Page 319

2016-07-06 06:42:24.211248+00

Quillin

Plaintiff-appellant, Barbara Ann Dieckman, appeals from the trial court's order which granted summary judgment in favor of defendant-appellee, Prudential Property and Casualty Insurance Company ("Prudential"). The trial court apparently concluded that the action was commenced beyond the one-year policy limitation. We reverse. On April 19, 1991, a fire occurred at a house located at 18476 West River Road, Columbia Station, Ohio. Pursuant to a divorce settlement, Dieckman, who did not live in the house, owned a thirty-five percent interest in this property. Dieckman's former husband was suspected of arson. In late July, Dieckman retained counsel to negotiate a settlement with Prudential, the homeowner's insurance carrier. For the next seven to eight months, Dieckman's attorney and his associate negotiated with Prudential. A Prudential adjuster assured each attorney that Dieckman would be compensated for her interest in the property over and above the mortgage payoff. The adjuster indicated that, although Prudential suspected Dieckman's ex-husband was involved in the arson, Prudential considered Dieckman to be an innocent spouse. Prudential apparently paid off the mortgage, but, despite its representations, denied Dieckman's claim. In a letter dated May 5, 1992, Prudential's attorney indicated that Prudential did not believe that Dieckman was entitled to any payment above the amount of the mortgage payoff. On August 31, 1992, Dieckman filed this action against Prudential, seeking $35,000 in damages for her interest in the property. Prudential moved for summary judgment, asserting that Dieckman's claim was barred by the following provision in her insurance policy: "8. Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions and the action is started within one year after the occurrence causing loss or damage." Dieckman opposed summary judgment, contending that, through its representations, Prudential had waived its right to assert the one-year limitation. The trial court, without explanation, initially denied Prudential's motion for summary judgment. However, upon reconsideration, the trial court, again without explanation, vacated its earlier judgment and granted summary judgment in favor of Prudential. *Page 854 Dieckman appeals and raises one assignment of error: "The trial court's final judgment was against the manifest weight of the evidence and genuine issues of material fact exist, precluding a grant of summary judgment." No one disputes the validity of the policy's one-year limitation provision, or the fact that Dieckman filed this action after the one-year period had expired. The sole issue before us is whether Dieckman established a genuine issue of material fact as to whether Prudential waived its right to enforce the policy provision in this case. "An insurance company may be held to have waived a limitation of action clause in a fire insurance policy by acts or declarations which evidence a recognition of liability, or acts or declarations which hold out a reasonable hope of adjustment and which acts or declarations occasion the delay by the insured in filing an action on the insurance contract until after the period of limitation has expired." Hounshell v. Am. States Ins.Co. (1981), 67 Ohio St.2d 427, 21 O.O.3d 267, 424 N.E.2d 311, syllabus. Although the Hounshell holding is broad, mere negotiation or discussion concerning liability of the insurance company under the policy would not be sufficient action to constitute waiver. See Broadview S. L. Co. v. Buckeye Union Ins. Co. (1982),70 Ohio St.2d 47, 50, 24 O.O.3d 109, 110, 434 N.E.2d 1092, 1094. Therefore, in Broadview S. L., the Supreme Court concluded that the mere fact that an insurance adjuster stated that he saw "no problem" with the claim did not evidence an admission of liability where it was evident that the insurance company was only in the process of determining the validity of the claim.Id. at 51, 24 O.O.3d at 111, 434 N.E.2d at 1094. Dieckman relies on Hounshell, and contends that Prudential's actions evidenced a recognition of liability which caused Dieckman's delay in filing this action. Dieckman insists that, for several months, Prudential led her to believe that her claim was valid and would be adjusted. It was not until she received the May 5 letter from Prudential's attorney, after the one-year period had expired, that she had any indication her claim was being denied. According to the affidavit of Dieckman's attorney, Robert Tinl, he sent numerous letters to Prudential over a seven- to eight-month period, attempting to negotiate a settlement. Tinl also stated that he had one telephone conversation with a Prudential adjuster, Teddi Nowak, in August 1991. According to Tinl, Nowak advised him that, although the claim of Dieckman's ex-husband would be denied because of his suspected involvement in the arson, Prudential considered Dieckman an innocent spouse. Nowak further indicated that Dieckman would be compensated for her pro rata share for her interest in the property, after Prudential had determined the market value of the property and the amount of *Page 855 the first mortgage. Tinl further stated that Nowak assured him that she would review the matter with her superiors, and that she would send information concerning payment in the following weeks. In September, October and November 1991, Tinl sent several letters to Nowak, requesting information on the status of the settlement of Dieckman's claim. Apparently, Tinl received no response to these letters. On January 13, 1992, Tinl's associate, Kevin Dunn, had a telephone conversation with Nowak. Dunn stated by way of affidavit that Nowak advised him that Prudential could not determine a settlement amount until it received a proof of loss from the mortgagee. However, Nowak indicated that Prudential would issue a settlement check once the settlement amount was calculated. In January and February 1992, Tinl sent two follow-up letters to Nowak, requesting information as to the amount of proceeds which Dieckman could expect to receive. In a letter dated March 2, 1992, Nowak indicated that payment would not be issued until a pending bankruptcy issue was clarified. The "payment" to which she referred was specified as a mortgage payoff in the amount of $62,002.071. Nothing in this letter indicated that Prudential would not pay any additional proceeds to Dieckman. On March 9, 1992, Tinl sent a follow-up letter to Nowak, questioning whether Dieckman was entitled to a percentage of the loss over and above the amount of the mortgage payoff. A letter from Prudential's attorney, dated May 5, 1992, indicated that Prudential did not agree that Dieckman was entitled to any proceeds. By the time this letter was sent, the one-year limitations period had expired. According to Dieckman's attorneys, Nowak had represented that, although she could not quote an exact dollar figure, Prudential would, in fact, compensate Dieckman for her pro rata share of the fire loss. The attorneys further contend that if Prudential had not made such representations, they would have filed suit within the one-year limitations period. Reasonable minds could conclude that Prudential's actions evidenced a recognition of liability to Dieckman for proceeds over and above the mortgage payoff, and that such actions caused Dieckman's delay in filing this action. Therefore, summary judgment was not proper. The assignment of error is sustained. The judgment of the trial court is reversed and the cause is remanded. Judgment reversedand cause remanded. COOK, P.J., and REECE, J., concur. *Page 856

2016-07-06 06:42:24.248352+00

Doyle

This case originated in the Common Pleas Court of Cuyahoga County, and was commenced by Ezra Z. Shapiro, a practicing lawyer of the city of Cleveland, against the Kilgore Cleaning and Storage Company, to recover damages for serious personal injuries received by him through the claimed negligence of one Ralph Herdman, an employee of the defendant company. Upon the issues developed by the pleadings and the evidence, a jury rendered a verdict for the defendant. A motion for a new trial was overruled, and judgment was entered on the verdict. The appeal by the plaintiff to this court is taken from that judgment. A head-on collision between two automobiles, one driven by the plaintiff, and the other driven by defendant's employee, was the mischief which brought about the hurt. The plaintiff testified: that he left his home at about 8:30 in the morning, and drove his automobile west on North Park Boulevard; and that, as he approached a point "three or four car lengths east of the intersection of South Overlook and North Park Boulevard," while driving on the "right-hand side of the road" and with the "left side of my car * * * three to five feet * * * north of the center line * * *, all of a sudden I saw a car which had been coming in the opposite direction, coming east up the hill, shoot straight at me, coming across the center line and crossing the bulge of the curve at that point, and it struck my car on the left front side * * *, it threw me forward and to the right and my right chest struck the right center of the wheel, turning the wheel to the left, and then my car began to *Page 404 roll forward down the hill and the other car began to roll backwards down the hill in front of me, and we rolled a car length and a half or so until we both came to a stop and we were about five feet apart at that point." The record then shows the following: "Q. What part of your automobile was struck? A. The left front part of my automobile was struck. "Q. What part of the other car was involved? A. The left front part of their car was similarly involved." The driver of the defendant's car testified to an entirely opposite set of circumstances at and near the time of the collision. He said (in answer to a previous question): "I was driving out North Park Boulevard and I came * * * close to the intersection of South Overlook and I * * * [saw] Mr. Shapiro's car up ahead and after it got maybe four car lengths from me he seemed to come right straight across the road, across the center line. "Q. Now, when you first saw Mr. Shapiro's car, approximately how far ahead of you was it? A. Approximately seventy-five yards. * * * "Q. At the time you first saw his car, how fast was your car going approximately? A. 25 [m. p. h.]. "Q. And in what line of traffic was your car proceeding? A. I was on the right-hand lane. "Q. Well, were you nearer to the center line or to the curb? A. I would say about in the center in my lane, or closer to the curb. "Q. Now, when you saw Mr. Shapiro's car veering toward you across the center line, what did you do with reference to the operation of your car? A. I cut the wheel and hit the brakes. "Q. Cut the wheel in which direction, sir? A. Towards the side of the road. "Q. That would be towards your right? A. Yes." In addition to the testimony stated above, the record contains the testimony of a police officer who arrived after the accident, and photographs taken shortly after the collision, showing the damaged cars, the highway and its condition, and *Page 405 the plaintiff's car partly on the "wrong" side of the road, and the defendant's car on its "right" side of the highway. The position of the plaintiff's car on its wrong side of the road when it came to rest was explained by the plaintiff's testimony as being brought about as a result of his car rolling forward "down the hill" immediately after the collision, and the defendant's car rolling "backwards down the hill in front of me." The only eye witnesses to the collision, who testified, were the respective drivers of the cars; and, as a result, it is obvious that the jury was especially concerned with the credibility to be given to the testimony of these persons. Attention will be first directed to the following claim of error: "3. The trial court erred in relation to the misconduct of defendant's counsel in making improper and prejudicial argument to the jury and in failing to grant a new trial because of such argument." Counsel for the defendant, after giving to the jury in argument his interpretation of the facts, as shown by the evidence, then proceeded to argue the question of the credibility which should be given to the plaintiff's version of the cause of the collision. He said to the jury: "I am troubled by something in this case that goes far deeper, and with this I am through. I think the facts are perfectly clear that under these pictures Mr. Shapiro's story can't be accurate. I don't accuse him of being deliberately misleading. I think he is mistaken. But as you well know, in the eyes of the public, lawyers do not have the most savory reputation. This goes for me, for Mr. Gaines [Gaines was counsel for the plaintiff], and for all of us. The word `shyster' has a meaning in our language. If a person says that word you know what he is talking about. Now, ladies and gentlemen, I have nothing against a lawyer coming into court and demanding redress for an injury, but when he is so obviously wrong I confess it makes me sick. Every time a lawyer goes sour in the public prints, every time it happens it is a little harder for my wife to go in the grocery store and do her shopping. They tar us all with the same brush. Please, please, don't tar me with this one * * *." *Page 406 In rebuttal argument, counsel for plaintiff said: "I stood here and I listened to this man imply that this Ezra Shapiro was a `shyster,' and I resented it, I resented it with every ounce of energy in my possession, and you ought to resent it. Ezra Shapiro, a former law director of the city of Cleveland, who had the willingness and the candor to come up and tell you his story. How can you ever expect respect for the profession that you and I chose when you undertake to resort to that sort of innuendo? You will be tarred * * * [the offending counsel was here named]. You ought to be tarred. Any man who would demean the profession to the extent to which you have undertaken to demean it today." Defendant's counsel, after the conclusions of the arguments, stated, in open court and to the jury, that he spoke impulsively when he used the word "shyster," and that he did not intend to use the word "with a personal reference to anyone either present or not present." Blackstone called the jury system "the glory of the English law." Thomas Jefferson, and others of great repute, have recognized it as one of the really great achievements of English and American jurisprudence. The jury system is sometimes spoken of as the "palladium of our liberties." The system in this country has its champions and its opponents. The jury is, however, considered by the majority as a champion of the popular cause; cherished as a bulwark against oppressive governments; and acclaimed as essential to individual liberty. In this state every person has the right to a fair and impartial jury trial before an impartial jury in a case of the kind now under consideration. The lawyers who participate in the trial are officers of the court and charged with every responsibility connected with that office. The phrase "fair trial" has a definite meaning; and while a generous latitude should be allowed counsel in arguing the merits of their respective sides, such argument should be decorous, and should not be of such a nature as to impair the impartial administration of justice. If it does thwart an impartial administration of justice, of course it causes an "unfair trial." "* * * it may be laid down as law, and not merely discretionary, *Page 407 that where the counsel grossly abuses his privilege to the manifest prejudice of the opposite party, it is the duty of the judge to stop him then and there. And if he fails to do so, and the impropriety is great, it is good ground for a new trial."Jenkins, Admx., v. North Carolina Ore Dressing Co.,65 N.C. 563, at pp. 564-565, cited with approval in Hayes v. Smith,62 Ohio St. 161, at p. 187, 56 N.E. 879. "1. It is not within the privilege of counsel in argument to a jury, to use language calculated to humiliate and degrade the opposite party in the eyes of the jury * * *, particularly when he has not been impeached." Coble v. Coble, Admr., 79 N.C. 589, 28 Am. Rep., 338, cited with approval in Hayes v. Smith, supra, at p. 186. The fact that one Cleveland lawyer subtly inferred or insinuated that another lawyer, practicing at the same bar, was dishonest, a pettifogger, and a trickish knave, is sufficient to raise the question whether a fair and impartial jury trial was maintained, and whether the jury was prejudicially influenced in determining the credibility of the witness; and the fact that the insinuating, vicious and slanderous characterization of the lawyer-witness was later withdrawn, leaves the question of whether, once a dagger is thrust through the heart, it can be withdrawn without injury or damage. In other words, can the smear of the word "shyster" be withdrawn and leave the surface clean? In Jones v. Macedonia-Northfield Banking Co., 132 Ohio St. 341, 7 N.E.2d 544, the following paragraphs of the syllabus are recorded: "1. It is the duty of counsel to refrain from challenging the honor or reputation of a witness, party or opposing counsel unless warranted by the evidence. "2. Utterances of counsel while evidence is being adduced, whether consisting of comments on the evidence or of offensive and personal remarks, are improper and unethical and, if prejudicial and not waived, constitute reversible error. "3. Argument to the jury, in which counsel charges opposing parties with framing or fixing up their defense by perjury arranged for or suborned, is improper unless there is evidence *Page 408 warranting the course pursued; and where counsel grossly abuses his privilege by persisting in making such unfounded charges to the manifest prejudice of opposing parties, it is the duty of the court to interfere, admonish offending counsel and instruct the jury to disregard the improper utterances, and a failure to do so is ground for a new trial." Unwarranted and unjustified charges against a party to a suit were under investigation in Plas v. Holmes Construction Co.,Inc., 157 Ohio St. 95, 104 N.E.2d 689. The court said, in paragraph 3 of the syllabus, that: "3. It is the duty of the trial judge to repress unwarranted charges of a scurrilous character and gratuitous personal attacks against a party to a suit in cross-examination and in argument to the jury; and the trial judge should interpose and not only admonish offending counsel and prevent further improper and prejudicial cross-examination and argument to the jury based thereon but should also promptly instruct the jury relative thereto. Failure of the judge so to do constitutes prejudicial error." There is nothing in the record of the trial to justify an implied character assassination of the plaintiff. He is a man who bears a reputation of integrity. Nor is there anything in the record to indicate that "lawyers do not have the most savory reputation." The members of the bar have the reputation generally, we think, of employing such means as are consistent with truth and honor in maintaining the causes confided to them; of carrying out the oath, which they took upon admittance to the bar, to not seek to mislead a judge or jury by any artifice or false statement of fact or law, and to abstain from offensive personality; and to advance no fact prejudicial to the honor and reputation of a party or witness unless required by the justice of the cause with which he is charged. There are, of course, a few in the legal profession who have miserably violated their oath, and do not bear a "most savory reputation." The same is true in all other professions or callings. This fact, however, does no violence to the reputation of the vast majority of the men and women of the profession, to the intelligent person, any more than did the conduct of John *Page 409 Wilkes Booth bear upon the reputation of the people of the South who were in sympathy with the Confederate cause following the Civil War. We further do not believe that an intelligent juror or citizen is influenced in his estimation of a lawyer by the sometimes-silly, stupid or dishonest stunts attributed to lawyers in staged plays shown on television or elsewhere. We are of the opinion, and so hold, that the inflammatory argument of counsel, from which a strong inference could be reasonably drawn that counsel meant the jury to believe and understand that the reputation of lawyers generally was bad, and that the plaintiff-lawyer-witness was a "shyster," all of which had no basis in fact, constituted prejudicial error; and the court's attempt, in the general charge, to cure the error was of no avail. In 39 Words and Phrases (Perm. Ed.), 329, appears the following: "A `shyster' is defined as a pettifogger, one who carries on legal business in a dishonest way, one without professional honor. Moore v. State, 147 Neb. 390, 23 N.W.2d 552, 557." "A shyster is defined as a trickish knave; one who carries on any business, especially a legal business, in a dishonest way (Webst.), and is capable of having reference to the professional character and standing of lawyer; and hence in an action for libeling a lawyer by calling him a shyster the issue whether plaintiff is a lawyer is a material one. Gribble v. Pioneer PressCo., 34 Minn. 342, 25 N.W. 710." "An article headed `The White-Livered Shyster,' and in its body imputing grossly criminal, anarchistic, and unprofessional conduct to the object of its attack, etc., being written and published concerning a lawyer, held libelous per se under Rev. Codes 1921, Sec. 5690, as exposing him to hatred, contempt, ridicule, and obloquy, causing him to be shunned and avoided, and tending to injure him in his business; a `shyster' being said to be `a trickish knave; one who carries on any business, especially a legal business, in a dishonest way.' Nolan v.Standard Pub. Co., 67 Mont. 212, 216 P. 571, 574." "A `shyster' as applied to an attorney, in common understanding means that he is an unscrupulous practitioner who will *Page 410 carry on his legal work in a dishonest way and will resort to sharp and tricky practices to achieve his end and purpose.Henderson v. Evansville Press, Inc., 127 Ind. App. 592,142 N.E.2d 920, 922." See also: Black's Law Dictionary (3 Ed.), 1625. Error of the trial court is further assigned in two respects: "1. * * * in imposing upon plaintiff the burden of proving that the negligence of the defendant was the sole proximate cause of the collision." And — "2. * * * in giving instructions which state conflicting and contradictory rules of law." The court charged: "It is the duty of the plaintiff to prove to you by a preponderance of the evidence that the defendant was guilty of negligence in one or more of the particulars set forth in the petition. And he must further prove to you by a preponderance of the evidence that said negligence of the defendant was the sole proximate cause of the collision and consequent injuries to said plaintiff before you may find a verdict for the plaintiff." At another point the court charged: "If you, therefore, find, by a preponderance of the evidence, that this collision happened through the sole negligence of the defendant and further find that said negligence was the sole proximate cause of the injuries sustained by the plaintiff, then your verdict must be for the plaintiff." Following these words to the jury, the court then charged on contributory negligence as follows: "From this evidence, in case you find the defendant's agent guilty of negligence, you may then consider whether the plaintiff was also negligent, which negligence contributed to proximately cause the collision and consequent injuries to him. This is known as contributory negligence. The burden of proving contributory negligence of the plaintiff is on the defendant. If you find, therefore, by a preponderance of the evidence, that the plaintiff was guilty of negligence, which negligence contributed to proximately cause the collision and injuries to the plaintiff, *Page 411 then your verdict must be for the defendant. In other words, if this collision was caused or contributed to by the negligence of both parties proximately operating, then your verdict must be for the defendant." When this trial commenced, the presumption of law was that neither of the litigants were negligent, and whether one or the other, or both, were negligent was a question of proof. The proof offered was the testimony of the two contradictory eye witnesses, coupled with physical facts shown to exist after the collision. The jury, in consideration of the evidence, could have found that the negligence of the plaintiff, the negligence of the defendant, or the negligence of both, proximately caused the collision. This thought, it would appear, was in the mind of the trial court when a charge on contributory negligence was given, because contributory negligence on the part of a plaintiff does not come into existence unless there is some proof indicating negligence of the defendant contributing to the damage. It is well settled in this state that contributory negligence is an affirmative defense which may arise through either the pleadings, the evidence, or both; and the burden of persuasion to establish it falls upon the party charged with culpable liability. When the court told the jury that, before the plaintiff could recover, he must prove that the negligence of the defendant was the sole proximate cause of the damage, the jury was told, in effect, that the plaintiff must prove that he was not negligent proximately causing, or contributing to cause, along with the defendant's negligence, the damage. In other words, before he could recover, he must prove his freedom from negligence which caused his damage. No such burden is put upon a plaintiff, except only if his own testimony, or evidence in support of his cause of action, raises an inference or presumption of his own contributory negligence, then the burden rests upon him to equal or dispel such inference or presumption. Maddex v. Columber,114 Ohio St. 178, 151 N.E. 56; Smith v. Lopa, 123 Ohio St. 213,174 N.E. 735. It is not necessary to equal or dispel a presumption or inference of contributory negligence, arising from the plaintiff's *Page 412 evidence, by a preponderance of the evidence; it is sufficient if the inference or presumption is equalled or dispelled by evidence of equal weight. Tresise v. Ashdown, Admr., 118 Ohio St. 307,316, 160 N.E. 898. The plaintiff was entitled to the benefit of the presumption that he was exercising due care for his own safety, and was not negligent as a matter of law at the time of the collision.Cleveland, C. C. Rd. Co. v. Crawford, Admr., 24 Ohio St. 631, 15 Am. Rep., 633; Norris, Exrx., v. Jones, Recr., 110 Ohio St. 598,604, 114 N.E. 274; Tresise v. Ashdown, Admr., supra;McFadden, Admx., v. Elmer C. Breuer Transportation Co., 156 Ohio St. 430,442, 103 N.E.2d 385. If, for instance, the minds of the jurors were in a state of even balance as to whether the plaintiff's version of the accident was correct, under the charge which required him to prove, by a preponderance of the evidence, that the defendant's negligence was the sole proximate cause of the damage, he must necessarily fail, because he had not proved that his own negligence was not a proximate cause of the accident. This situation does not comply with the rules of proof. In a trial where the evidence is in sharp conflict, and an erroneous instruction is given to the jury, relating to the burden of proof, prejudicial error arises in favor of the litigant upon whom the unwarranted burden is placed.Montanari v. Haworth,, 108 Ohio St. 8, 14, 140 N.E. 319;Cleveland Ry. Co. v. Goldman, a Minor, 122 Ohio St. 73,170 N.E. 641; Johnson v. Hunter, 103 Ohio App. 31,144 N.E.2d 472, affirmed, Johnson v. Hunter, 166 Ohio St. 289,142 N.E.2d 227. It appears obvious that the charges on "sole proximate cause" and on "contributory negligence," are confusing, conflicting, and contradictory. This creates error. Bosjnak v. Superior SheetSteel Co., 145 Ohio St. 538, 62 N.E.2d 305. For the reasons stated above, the judgment of the Court of Common Pleas will be reversed, and the cause remanded for a new trial. We do not find the judgment "against the manifest weight of the evidence." Judgment reversed and cause remanded. HUNSICKER and RADCLIFF, JJ., concur. *Page 413 DOYLE, P. J., and HUNSICKER, J., of the Ninth Appellate District, and RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the Eighth Appellate District.

2016-07-06 06:42:24.827099+00

Matthews

This is a proceeding in error to the Court of Common Pleas of Hamilton county, and presents for review certain efforts to enforce the final judgment for money previously rendered. That judgment having been affirmed by the highest court having jurisdiction, the sole issue now is as to the regularity *Page 300 and validity of the means resorted to in the process of securing, or attempting to secure, its satisfaction. On June 10, 1932, an execution was issued. On May 3, 1934, the plaintiff filed a motion for an order setting "a time and place for hearing and for defendants to appear and file any motions or pleadings." On September 27, 1934, the court entered upon its journal the following order: "Upon motion of the plaintiff filed herein on May 3rd, 1934, to which reference is hereby made the court hereby sets for hearing upon Wednesday, October 3rd, 1934, at 9 o'clock a.m. the question referred to in said motion as to whether any of the items of property of The Long Allstatter Company, levied upon by the Sheriff of Butler county, in so far as they are included in the inventory of said Sheriff, filed herein with his return of the fourth order of sale, are as a matter of fact and law not personal property but fixtures and therefore part of the realty. "The Court hereby orders the defendant, The Long Allstatter Company, Ralph K. Beeler, Trustee in Bankruptcy of The Long Allstatter Company and also The First National Bank Trust Company of Hamilton, Ohio, and The Fifth Third Union Trust Company of Cincinnati, Ohio, to appear before this Court on said 3rd day of October, 1934, at 9 o'clock a.m. and to file such motions or pleadings as they may see fit and offer such evidence as they may see fit which is competent and relevant on said question, in order that the matter may be determined by this court." The parties named in this order appeared specially and moved to quash service of this order on the ground that the court had no jurisdiction of the person or the subject-matter. The motions of The Long Allstatter Company and Ralph K. Beeler, trustee in bankruptcy of The Long Allstatter Company, were overruled. The motions of the others were sustained. No pleadings of any sort were filed, but thereafter *Page 301 the court proceeded to hear evidence as to the character of the property levied upon and the manner of its attachment to the land, and, on January 26, 1935, journalized its findings of facts from this evidence and stated separately its conclusions of law in accordance with the request of counsel for The Long Allstatter Company. On the same day the court spread upon its journal a finding that certain property was personalty and certain other property was realty, and as to the former the court ordered "said sheriff to proceed to sell the same as such," and as to the latter, the court found that it was not "subject to sale as personal property under the judgment, execution and orders of this court." While counsel for The Long Allstatter Company and its trustee participated in the hearings, they claimed at all times that the court was completely lacking in jurisdiction, and in terms refrained from entering the appearance of their clients generally in the proceeding. It is claimed that notwithstanding their disclaimer, their conduct amounted to a general appearance, but the view we take of this case makes it unnecessary for us to determine this question of jurisdiction of the person. While no pleadings were filed we learn from the statements of counsel incorporated in and occupying the first forty-two pages of the bill of exceptions, that the sheriff had made a levy under the execution upon certain property, and a controversy arose as to the right to levy upon certain fixtures as personal property. The sheriff filed a list or inventory of the property levied upon. All the proceedings thereafter taken were for the purpose of determining what the sheriff should do in the light of this controversy. The Long Allstatter Company filed a voluntary petition in bankruptcy in the United States District Court for the Southern District of Ohio, and was *Page 302 adjudged a bankrupt on the 4th day of April, 1933, and, thereafter, Ralph K. Beeler was appointed trustee in bankruptcy. On August 26, 1933, Beeler as trustee filed a plenary action in the United States District Court for the Southern District of Ohio against the sheriff for an injunction to restrain him from selling as personal property the fixtures, on the ground that the levy upon them as personal property was invalid; and a temporary injunction was granted. The jurisdiction of the United States District Court to hear and determine this case was sustained inSchumacher v. Beeler, 293 U.S. 367, 79 L. Ed., 433,55 S. Ct., 230, and the temporary injunction was operative at the time of the hearing of the case. It appears from the elaborate statement of counsel that much litigation has developed in the effort to enforce the judgment in this case, but the foregoing statement is sufficient for the purposes of this proceeding in error. By Section 4 of Article IV of the Ohio Constitution it is provided that the jurisdiction of the Courts of Common Pleas "shall be fixed by law." They can only hear such cases as they are authorized to hear by the law-making body, and their judgments are enforceable only by such writs and methods as are provided by that body. It is not doubted that by Section 11215, General Code, the Legislature has conferred upon Common Pleas Courts original jurisdiction to hear and decide the controversy between the original parties, set forth in the pleadings, showing a claim made by the plaintiff against the defendant and a denial of liability by it. But the court has long since decided that controversy and placed it in the form of a judgment in favor of the plaintiff against the defendant. Having done so — having decided and the decision having become final — the judicial function ceased in that case. The case was no longer pending. The enforcement of the judgment was no part of the judicial function. That duty devolved *Page 303 upon the executive department and the duty was ministerial and not judicial in its nature. The Legislature has provided by law for the ministerial officers and the process for the enforcement of judgments. These are available to the judgment creditor, and it is not in the power of the court to withhold, suspend, or modify them, unless the Legislature has conferred such authority.Municipal Court of Toledo v. State, ex rel. Platter, 126 Ohio St. 103, 184 N.E. 1; Ex Parte United States, 242 U.S. 27. We have been cited to no legislative authority. We think it equally sound that the court cannot invent and apply any new or different process for the enforcement of its judgments than that provided by the legislative department. The power, incidental to the judicial power, to make rules and otherwise provide for the effective exercise of the judicial power, and to enforce its judgments, is not so extensive as to transcend legislative provisions to that end. The Legislature has provided the writ of execution for the enforcement of money judgments, and, in aid of that writ, by Section 11768, et seq., General Code, the summary proceeding in aid to discover assets may be resorted to. Neither the proceeding under the writ nor the proceeding in aid of execution gives the court power to decide any issue that may arise between the executing officer and a third person. Welch v.Pittsburgh, Ft. Wayne Chicago Ry. Co., 11 Ohio St. 569, at 573; White v. Gates, 42 Ohio St. 109 at 112. In obedience to this rule, The Fifth-Third Union Trust Company and The First National Bank Trust Company were dismissed from this proceeding. If the lien of the judgment or the levy is upon property subject to other claims, or if assets not subject to execution exist, the Legislature has provided by Section 11760, General Code, that the judicial power may be again invoked to decide the rival claims in order that the judgment in the main action may be satisfied. *Page 304 If the sheriff under color of the writ levies upon property not belonging to the judgment debtor, the writ does not protect him, and the injured person may invoke the judicial power for redress. And to protect the sheriff in executing the writ the Legislature has placed it in his power to seek the advice of the prosecuting attorney, and to require indemnity. But it is claimed that the power of the court over its own process is authority for this proceeding. The writ of execution is provided by the Legislature and is not strictly speaking the process of the court. Having decided the case and entered judgment, the court has no power to withhold or suspend execution except to the extent authorized by the Legislature. As we view it what the court did was not to control its process, but to foreclose or adjudicate a new case or controversy that had arisen, or might arise, by reason of the action of the sheriff in executing the writ. We know of no authority for this. It is argued that the seizure of the property by the sheriff converted the case into a proceeding in rem. This could not be, for the reason that there was no proceeding pending. The only proceeding was the original action in personam, and it had reached the judicial repose of a final judgment. Counsel have cited certain cases. Wayman v. Southard, 10 Wheat. (U.S.), 1, involved the question of whether Congress had the power under the constitution to confer or delegate power to the court to provide its own writs, and all the court held was that it was not an unconstitutional delegation of legislative power. The court said at page 43: "It will not be contended, that these things might not be done by the legislature, without the intervention of the courts; yet it is not alleged that the power may not be conferred on the judicial department." And, at page 25: "It is true, that if, after the service of an execution, a question *Page 305 respecting the legality of the proceeding should be brought before the court by a regular suit, there would be a trial at common law * * *." Riggs v. Johnson County, 6 Wall. (U.S.), 166, was not a summary action in the case in which the judgment had been rendered, but was an independent action in mandamus to compel the county to levy a tax to pay the judgment. Bayne v.Brewer Pottery Co., 90 F., 754, was a suit in equity, and, as is well known, the legislative department has left to courts of equity the power to mould their decrees to fit the equity of the case and to enforce them by coercion of the person. Dickey v. Turner, 49 Fed. (2d), 998, was an independent action to enjoin the enforcement of a judgment rendered in another action in order that the plaintiff might be permitted the advantage of a set-off because of the insolvency of the judgment creditor. State, ex rel. Ellis, Atty. Genl., v. Board of Deputy StateSupervisors, 70 Ohio St. 341, 71 N.E. 717, did not involve the power of the court after it had rendered final judgment. The question was whether the Supreme Court had power to issue a temporary restraining order to preserve the status quo pending the final determination of the right to an office in an action inquo warranto. The cases cited do not sustain the validity of this summary proceeding. In so far as they are pertinent, they indicate a contrary conclusion. After The Fifth-Third Union Trust Company and The First National Bank Trust Company were dismissed from this proceeding, there were no adversaries except the trustee in bankruptcy of the defendant, and the sheriff, unless it could be said that notwithstanding the final judgment the original litigants still answered that description which of course they did not. The original issues had been decided. All the defendant's property, whether real, personal or mixed, was subject to the judgment. The trustee in *Page 306 bankruptcy could, at most, only represent the general creditors. Their rights could, perhaps, be affected by a determination that certain fixtures were still personal property, and, therefore, subject to the lien created by the levy and to sale under the writ. Whatever the trustee did or failed to do could not jeopardize the proprietary rights of other lienholders. The only possible issue then was between the trustee and the sheriff. But this issue was involved in Schumacher v. Beeler, pending in the United States District Court, and this fact was brought to the attention of the Common Pleas Court. Not only comity, but the mandate of the United States Constitution that "This Constitution * * * shall be the supreme law of the land; and the judges of every state shall be bound thereby," required the state court to yield whatever jurisdiction it might otherwise have to the paramount jurisdiction of the Federal court. In Schumacher v. Beeler, supra, the Supreme Court of the United States has decided that the United States District Court has jurisdiction to the extent that these fixtures are real estate. But it is said that its jurisdiction depends, under the act of Congress, on whether these fixtures are to be regarded as realty, and that until that issue is determined it cannot be known whether that court has jurisdiction. Manifestly some court must determine this jurisdictional fact. It is a rule of universal application that whenever the jurisdiction of a court depends on the existence of a fact, that court has from necessity the included jurisdiction to inquire into such jurisdictional fact. In 1 Freeman on Judgments (5th Ed.), Section 350, it is said: "By some application or pleading, facts and circumstances are presented to the court upon the existence of which its right to undertake a determination of the case depends. Without the allegation and proof of such facts it could not rightfully proceed to adjudicate *Page 307 the matter involved. If the circumstances which give rise to the jurisdiction do not exist in a particular case the authority to act does not arise. But the question as to whether or not they do in fact exist is a matter primarily for the court whose powers are invoked, and it has jurisdiction to examine and determine whether the particular application is within or beyond its authority. Its decision in this respect is itself the exercise of a power conferred by the pleading or other act invoking its jurisdiction, and if such decision is incorrect, whether because of lack of evidence or for any other reason, it is none the less binding upon the parties unless and until set aside on appeal or by some other proceeding for that purpose. For jurisdiction to decide includes power to decide erroneously and to make the decision binding collaterally. It is enough in such cases that there be something of record which shows the subject matter before the court and its action upon it, that its judicial power arose and was exercised by a definite order or judgment." If the United States District Court should err in its decision upon the existence of the jurisdictional fact, the remedy is by way of appeal to the higher federal courts. Should the Supreme Court of the United States decide that these fixtures were real estate, then the jurisdictional fact would be conclusively established beyond controversy in any other state or federal court. State, ex rel. Faber, Receiver, v. Jones, 95 Ohio St. 357, at 366, 116 N.E. 456. In this case the issue between the state court and the federal court is raised in the state court at a time when both are assuming to exercise jurisdiction over the same subject-matter. In the absence of this conflict, both the state and the nation have jurisdiction. If the national agencies actually exercise such authority, the state authority must yield, otherwise conflict and chaos would ensue. *Page 308 This case is unlike those in which the issue is raised in the United States courts. Those courts may and frequently do on the principle of comity yield jurisdiction to a state court that had already assumed jurisdiction over the subject-matter. Straton v.New, 283 U.S. 318, 75 L. Ed., 1040, 51 S. Ct., 465, is of this class. The United States court asserted its jurisdiction and then yielded it to the state court, which had previously assumed jurisdiction over the subject-matter. We regard such cases as entirely inapplicable to this case. For the reasons that no power has been conferred upon the Court of Common Pleas to entertain such a proceeding under any circumstances, and for the further reason that Congress in the exercise of its paramount authority over bankruptcy had conferred jurisdiction upon the United States District Court as to the real estate of the bankrupt, and that court had assumed such jurisdiction in a case between these same parties before any attempt was made in the case at bar to invoke jurisdiction to determine that issue, the order of the Common Pleas Court is reversed, and this cause remanded with instructions to dismiss the proceeding in which the order was made. Judgment reversed and cause remanded. ROSS, P.J., and HAMILTON, J., concur. *Page 309

2016-07-06 06:42:24.87095+00

Stephenson

This is an appeal from a judgment entered by the Small Claims Division of the Hocking County Municipal Court, following a bench trial, awarding monetary damages to Nancy C. Blosser, plaintiff below and appellee herein, against Nick Carter, defendant below and appellant herein. Appellant assigns the following errors: "Assignment of Error number One "The trial court erred, to the prejudice of the defendant-appellant, by granting a judgment for money in excess of the amount requested by the plaintiff in her complaint. *Page 217 "Assignment of Error number Two "The trial court's holding was against the manifest weight of the evidence, an abuse of discretion, and thus constitutes reversible error. "Assignment of Error number Three "The conduct of the trial court evidenced bias against the defendant-appellant, thereby depriving the defendant-appellant of his right to a fair and impartial trial, and thus constitutes reversible error." The facts pertinent to this appeal are as follows. On June 8, 1988, appellee and her husband paid appellant the sum of $1,187 in consideration for appellant's promise to "till, topsoil, seed and straw new lawn" on appellee's premises. Subsequent to appellant completing his work on the lawn, appellee became dissatisfied with the result. On October 28, 1988, appellee commenced suit in the Small Claims Division of the Hocking County Municipal Court alleging, in substance, that appellant had breached their agreement for the lawn work. Appellee prayed for compensatory damages in the amount of $800. On December 8, 1988, a trial was held in this matter and appellee presented evidence, including photographs, that despite appellant's labor, her lawn showed only "rye, weeds and bare spots." In rebuttal, appellant testified that he had properly performed under their agreement and that any defect which arose with respect to appellee's lawn was caused by the drought which occurred that summer. At the conclusion of trial, the court entered judgment for appellee in the amount of $946.76. In his first assignment, appellant argues that the court below erred in awarding damages in excess of the $800 damages specified in appellee's complaint. In her brief, appellee agrees and concedes that the court erred in this regard. We also agree. The portion of Civ.R. 54(C), pertinent to this action, states as follows: "A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled; however, a demand for judgment which seeks a judgment for money shall limitthe claimant to the sum claimed in the demand unless he amends his demand not later than seven days before the commencement of the trial * * *." (Emphasis added.) However, in the cause sub judice, the rule is qualified by an exception in Civ.R. 1(C), which declares, in part, as follows: *Page 218 "These rules, to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure * * * (4) in small claims matters under Chapter 1925, Revised Code * * *." Accordingly, Civ.R. 54(C) will apply to a small claims matter unless, by its nature, it would be clearly inapplicable. Though we can find no decisions which have considered this issue, we hold, for the following reasons, that Civ.R. 54(C) is not "clearly inapplicable" to a small claims matter and, therefore, a small claims judgment is limited to the amount, or amended amount, demanded in the small claims complaint. Application of the Rules of Civil Procedure to small claims actions is specifically sanctioned by R.C. 1925.16, which states as follows: "Except as inconsistent procedures are provided in this chapter or in rules of court adopted in furtherance of the purposes of this chapter, all proceedings in the small claims division of a municipal court are subject to the Rules of Civil Procedure, and Chapter 1901. and sections 2307.06 and 2307.07 of the Revised Code, and all proceedings in the small claims division of a county court are subject to the Rules of Civil Procedure, Chapter 1907., and sections 2307.06 and 2307.07 of the Revised Code." There is no provision in R.C. Chapter 1925 which is contrary to the general rule of Civ.R. 54(C) that a judgment cannot be in excess of the amount, or amended amount, demanded by the claimant. To the contrary, while other portions of Civ.R. 54(C) have been statutorily altered in R.C. Chapter 1925, the legislature has presumably seen fit to leave the money damages limitation intact. Civ.R. 54(C) allows for an amendment of a claim no later than seven days before a trial commences. However, R.C. 1925.09 permits amendment of a claim at any time before judgment, or vacation of judgment. Thus, under R.C. 1925.16, set forth above, the seven-day amendment limitation set forth in Civ.R. 54(C) will not apply to a small claims proceeding because it is inconsistent with the statute. However, as stated previously, there is no alternate procedure in that chapter to allow a court to award damages in excess of that amount demanded by a claimant. Our holding is further supported by the fact that the damage limitation rule does not contravene the general philosophy behind small claims proceedings which is to present an informal, inexpensive and expedited procedure without the usual delays engendered by responsive pleadings and elaborate discovery. 8 West, Ohio Practice (1970) 140 (Civil Rules Staff Notes); 4 Anderson, Ohio Civil Practice (1987) 51, Section 147.04(C). This court has previously declined to apply a provision of the Civil Rules where such provision is contrary to the *Page 219 goal of expedient resolution of small claims matters. SeeSchafer v. McNeill Enterprises (Nov. 11, 1984), Ross App. No. 1071, unreported, 1984 WL 5658. However, limiting a court's power to award damages to that amount demanded by the claimant, under Civ.R. 54(C), does not contravene the goal of expediency. Under R.C. 1925.09, a claimant is free to amend a demand for damages at any time before a judgment. Thus, a claimant who discovers, during trial, that she is entitled to additional damages may freely amend her demand subject only to the jurisdictional limitation of R.C.1925.02(A)(1). Thus, the damages-limitation rule of Civ.R. 54(C) works no hardship on a small claims litigant, but merely restricts the court as it would in any other civil case. Accordingly, we hold that the damages-limitation rule of Civ.R. 54(C) is not "clearly inapplicable" to small-claims litigation under R.C. Chapter 1925. Thus, the trial court below erroneously awarded damages in excess of that amount demanded by appellee and, accordingly, appellant's first assignment of error is sustained. In his second assignment of error, appellant argues that the judgment of the trial court was an abuse of discretion and against the manifest weight of the evidence. The basis for appellant's argument is that his agreement with appellee obligated him only to perform certain services and that appellee, herself, admitted such services had been performed. Appellant further contends that he neither warranted his services, nor promised, a lawn with grass would be provided and, therefore, he did not breach their agreement. We disagree. It is a fundamental principle of contract law that "[w]here the language of a contract is of doubtful import, it is proper to ascertain the circumstances which surrounded the parties at the time it was made, the object intended to be accomplished,and the construction which the acts of the parties show theygave to their agreement, in order to give proper construction to the words they have used in the instrument, and to determine its legal effect." (Emphasis added.) Mosier v. Parry (1899), 60 Ohio St. 388,54 N.E. 364, at paragraph one of the syllabus;Johnson v. American Gas Co. (1917), 8 Ohio App. 124, 134; Coe v.Suburban Light Power Co. (1929), 32 Ohio App. 158, 163,167 N.E. 693, 695. The only writing which directly reflects the agreement between the parties is the receipt given appellee after payment to appellant. Such receipt describes, under "Description Of Material Used," the following: "Till, top soil, seed and strawnew lawn." (Emphasis added.) It may, arguably, be unclear as to whether appellant obligated himself to provide a "new lawn" or merely to provide services. However, the following testimony by appellee clearly *Page 220 shows that she intended their agreement to accomplish the final objective of providing her with a "new lawn" which included grass: "On June the 8th, I paid Nick Carter $1,187 to rework our lawn. The invoice that he gave us said "new lawn." We didn't geta new lawn. All we got was weeds and rye grass and bare spots." (Emphasis added.) This testimony, and similar evidence, supports a finding that the agreement was not to provide merely services, but rather to provide appellee a new lawn with grass. The evidence further supports a finding that such agreement was breached. In reviewing a lower court's judgment, we must presume findings by the trier of fact to be correct and we cannot reverse a judgment supported by some competent and credible evidence going to all the essential elements of a case. C.E. Morris Co. v. FoleyConstr. Co. (1978), 54 Ohio St.2d 279, 54 Ohio St.2d 279,376 N.E.2d 578, at the syllabus; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410-411,461 N.E.2d 1273, 1276-1277; Karches v. Cincinnati (1988), 38 Ohio St.3d 12,19, 526 N.E.2d 1350, 1357. We find the judgment below to be supported by sufficient competent evidence and, therefore, appellant's second assignment of error is overruled. In his final assignment of error, appellant argues that he was denied a fair and impartial trial. After a review of the transcript of proceedings below, we disagree. In support of his argument, appellant first advances an affidavit, attached to his brief, which makes certain allegations concerning an alleged lack of impartiality on the part of the court below. However, this court is confined by App.R. 12(A) to consider only that which is contained in the "record on appeal." Lamar v. Marbury (1982), 69 Ohio St.2d 274,277, 23 O.O.3d 269, 271, 431 N.E.2d 1028, 1030-1031; Boston v.Daugherty (1983), 12 Ohio App.3d 4, 5, 12 OBR 88, 89-90,465 N.E.2d 1317, 1319, at fn. 3; State v. Hawley (1984), 20 Ohio App.3d 59, 20 OBR 62, 484 N.E.2d 231, at fn. 1. Inasmuch as the subject affidavit constitutes neither part of the original papers or exhibits filed below, nor does it constitute part of the transcript, we are required to disregard it.1 Next, appellant cites to specific remarks in the transcript made by the court which, allegedly, demonstrates a lack of impartiality during trial. *Page 221 However, even assuming, arguendo, that such remarks were improper, appellant has failed to demonstrate, and we cannot determine, how appellant would have been prejudiced by them. The trial below was not before a jury and, as held previously, there was sufficient competent evidence to support a judgment against appellant. In short, we cannot see how appellant would be prejudiced even if the court's remarks were improper. In determining whether a violation of the canons of judicial conduct has prejudiced a party, "[n]o prejudice will be presumed where none is demonstrated." State v. Freeman (1985), 20 Ohio St.3d 55,57, 20 OBR 355, 357, 485 N.E.2d 1043, 1045, citingState v. Stanton (1968), 15 Ohio St.2d 215, 44 O.O.2d 191,239 N.E.2d 92, at paragraph two of the syllabus. Moreover, we are not persuaded that the "comments" relied upon by appellant demonstrate a lack of impartiality. Under Ohio law, the conduct of a trial is largely under the control of the trial judge. See Maddex v. Columber (1926), 114 Ohio St. 178,183, 151 N.E. 56, 57. Further, "the keeping of * * * witnesses, within the just limits of the issues and the competent evidence thereon, and their conduct pertinent thereto, must be left to the sound discretion of the presiding judge." Logan v. ClevelandRy. Co. (1923), 107 Ohio St. 211, 222, 140 N.E. 652, 655. Such a rule is even more crucial where, as in the cause sub judice, there are no attorneys to plead a litigant's case and they must go before the court pro se. In those instances, the court must, necessarily, conduct the questioning of witnesses and the presentation of evidence. In the present action, we do not believe the trial court's remarks to be any indication of a lack of impartiality. Rather, in those instances cited by appellant, the court was clearly attempting to confine appellant's testimony to pertinent issues and relevant evidence. Accordingly, appellant's third assignment of error is overruled. Having sustained appellant's first assignment of error, we modify, as a matter of law pursuant to App.R. 12(B), the judgment rendered below to that amount demanded by appellee in her complaint, to wit, $800, and affirm the judgment as so modified. Judgment affirmedas modified. HARSHA and GREY, JJ., concur. 1 App.R. 12(A) provides, inter alia, that an appeal "shall be determined on its merits on the assignments of error set forth in the briefs * * * on the record on appeal * * * and, unless waived, on oral arguments * * *." The "record on appeal" is defined by App.R. 9(A), which provides, in pertinent part, as follows: "The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases." (Emphasis added.) As neither appellant's, nor appellee's, affidavit falls within the rubric of the "record on appeal," we are required byLamar, supra, to disregard them. *Page 222

2016-07-06 06:42:24.908114+00

Grady

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3 Plaintiff James Jacobs appeals from a summary judgment dismissing his claims for breach of contract and fraud; the claims arose out of Jacobs's purchase of a parcel of residential real property from defendant Karlis Racevskis. On August 18, 1989, Jacobs signed a real estate sales agreement for the purchase of Racevskis's home, which is located at 3057 Woods Drive, in Springfield. Jacobs was subsequently provided with inspection reports concerning the roof, termites, septic system, and the well. Jacobs reviewed the reports on the roof and termites prior to closing. The evidence is unclear whether Jacobs received the reports on the septic system and the well before or after the closing. Jacobs and Racevskis did not speak before they met at the closing. The inspection report for the roof indicated that it was ten to twelve years old and in good condition. The termite report indicated that termites had been found and that the home had been treated. The inspection report on the well indicated that it did not meet building code requirements. As for the septic system, the inspection report recommended annual cleaning because it is a small system. Closing was held on October 17, 1989. Jacobs was aware at that time that the home had been treated for termites, but he declined the option of purchasing a follow-up treatment plan. Within a few weeks after the closing, Jacobs began to experience numerous problems with this home, including a leaking roof that resulted in water damage to the ceiling in the dining room, a water leak in the basement, a backed-up septic *Page 4 system, problems with the well, electrical problems, rodent infestation, and termite damage. Jacobs contacted Racevskis concerning these problems, but he obtained no satisfaction. On September 11, 1992, Jacobs and Ann M. Jacobs filed a complaint alleging that Racevskis had breached the contract of sale and had fraudulently concealed defects in the home and misrepresented the home's condition. Racevskis responded by filing an answer and third-party complaints against the real estate brokers involved in the sale and persons who had performed the various inspections. Thereafter, motions for summary judgment were filed by Racevskis and the third-party defendants. After considering the depositions, affidavits, memoranda filed by the parties and the arguments of counsel, on July 27, 1994, the trial court granted summary judgment in favor of each of the defendants and dismissed the complaint. The trial court found, as a fact, that Racevskis made no representations or statements to Jacobs concerning this house. The court further found that the real estate sales agreement that Jacobs had signed included a provision which indicated that Jacobs was purchasing this home in its present physical condition, "as is." Accordingly, the trial court held: "In Ohio the doctrine of caveat emptor applies to real estate transactions. The doctrine of caveat emptor precludes recovery in an action by the purchaser for structural defects in the real estate when (1) the condition complained of is open to observation or discoverable upon reasonable inspection, (2) the purchaser had the unimpeded opportunity to examine the premises, and (3) there is no fraud on the part of the vendor. Such is the present case. "Therefore, the court finds, as a matter of law, based on the undisputed facts and the doctrine of caveat emptor, defendants' motions for summary judgment should be SUSTAINED. This case is hereby DISMISSED at plaintiffs' cost." James Jacobs has timely appealed to this court from the summary judgment in favor of Karlis Racevskis. Jacobs argues that genuine issues of material fact remain for determination regarding whether Racevskis fraudulently concealed latent defects in the house and, therefore, that summary judgment was improper. We agree, and accordingly reverse the trial court's order. With respect to real estate sales transactions, a seller may be liable to the buyer for nondisclosure of a latent defect where the seller is under a duty to disclose facts and fails to do so. Brewer v. Brothers (1992), 82 Ohio App.3d 148, 151,611 N.E.2d 492, 493-494. An "as is" clause in a real estate sales contract relieves the seller of any duty to disclose and places the risk upon the buyer as to the discovery of existing defects.Brewer, supra; Kaye v. Buehrle (1983), 8 Ohio App.3d 381,382-383, 8 OBR 495, 496-497, 457 N.E.2d 373, 375-376. A purchaser's *Page 5 claim of nondisclosure will not overcome an "as is" clause. However, an "as is" clause does not bar a claim by the purchaser for positive fraud, that is, a fraud of commission rather than omission, such as fraudulent misrepresentation or fraudulent concealment. Brewer, supra; Kaye, supra. The doctrine of caveat emptor applies to real estate transactions. In Layman v. Binns (1988), 35 Ohio St.3d 176,519 N.E.2d 642, syllabus, the Ohio Supreme Court stated: "The doctrine of caveat emptor precludes recovery in an action by the purchaser for a structural defect in real estate where (1) the condition complained of is open to observation or discoverable upon reasonable inspection, (2) the purchaser had the unimpeded opportunity to examine the premises, and (3) there is no fraud on the part of the vendor. * * *" Caveat emptor will not bar recovery by a purchaser when latent defects not easily discoverable are coupled with affirmative misrepresentations or concealment. Kaye, supra;Szeman v. Williams (Mar. 30, 1992), Greene App. No. 90-CA-129, unreported, 1992 WL 66362; Said v. Steger (June 17, 1991), Clermont App. No. CA90-10-107, unreported, 1991 WL 106025. Civ.R. 56(C) provides in relevant part: "Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor." The burden of showing that no genuine issue exists as to any material fact falls upon the moving party. Harless v. Willis DayWarehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74,375 N.E.2d 46, 47-48. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. AnchorMedia, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095. All evidence submitted in connection with a motion for summary judgment must be construed most strongly in favor of the party against whom the motion is made. Morris v. First Natl. Bank Trust Co. of Ravenna (1970), 21 Ohio St.2d 25, 28, 50 O.O.2d 47, 48-49, 254 N.E.2d 683, 685-686. Before summary judgment may be granted the court must find that (1) no genuine issue as to any material fact remains to be *Page 6 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 that favors the movant. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317,327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. In reviewing a summary judgment an appellate court must view the facts in a light most favorable to the party opposing the motion.Osborne v. Lyles (1992), 63 Ohio St.3d 326, 327, 587 N.E.2d 825,827. In this case we are not concerned with fraudulent nondisclosure because the "as is" clause in the purchase agreement relieved the seller, Racevskis, of any duty to disclose known defects. Kaye v. Buehrle, supra. We are also not concerned with fraudulent misrepresentation as the trial court found that Racevskis made no representations or statements of any kind to Jacobs concerning the house. The sole question before us, therefore, concerns fraudulent concealment and, in the context of summary judgment, whether, on this record, construing the evidence presented in a light most favorable to Jacobs, there exists a genuine issue of material fact regarding whether Racevskis fraudulently concealed any latent defects in the house from Jacobs. If so, the doctrine of caveat emptor does not preclude recovery by Jacobs and the summary judgment for Racevskis was improper. In Szeman v. Williams, supra, this court, citing Crum v.McCoy (1974), 41 Ohio Misc. 34, 39, 70 O.O.2d 76, 79,322 N.E.2d 161, 165, identified the elements of a fraudulent concealment claim as follows: "(1) an actual concealment "(2) of a material fact "(3) with knowledge of the fact concealed "(4) with intent to mislead another into relying upon such conduct "(5) followed by actual reliance thereon by such other person having the right to so rely "(6) with injury resulting to such person because of such reliance." The evidence presented in this case, when viewed in a light most favorable to Jacobs, demonstrates that during the time Racevskis lived in this home he experienced leaks in the roof, including leaks in the basement walls, problems with the well, and problems with the septic system. At the time of sale, Racevskis did not reveal to Jacobs or any of the real estate agents the problems he had experienced with the house. According to Racevskis, he had remedied the defects by taking various corrective actions. These actions included repairing the floor underneath a toilet tank which had been damaged by condensation, digging up and relocating drainage pipes in order to stop water leaking through the *Page 7 basement walls, using various adhesives on the roof, putting sheets of plastic up in the attic, and repainting ceiling tiles in order to stop water leaks in the roof and remedy the resulting water damage, pulling and replacing the motor, filter and pipes in the well, digging up the septic system, and replacing the gravel in the leach bed. The actions taken by Racevskis to correct the defects in this house had the effect of concealing or disguising some of the problems Jacobs later experienced. For example, Jacobs claims that by painting the ceiling tiles Racevskis prevented him from discovering water stains on the ceiling, which could evidence a roof leak. Other evidence also indicates that some of the problems Jacobs has experienced with the basement and septic system were not open to observation or discernible upon reasonable inspection. Racevskis claims that the various actions he took to correct defects in this home were taken solely for the purpose of repairing and remedying those existing problems, not for the purpose of misleading or deceiving anyone, one of the necessary elements of a fraudulent concealment claim. Jacobs claims, on the other hand, that Racevskis's actions, such as painting the ceiling tiles and repairing the floor, were motivated by a purpose to conceal existing defects in this home from any potential buyer. Thus, the pivotal question here is one of Racevskis's purpose or intent, a material issue of fact. The evidence adduced both for and against the motions for summary judgment presented the trial court with two competing reasonable inferences as to Racevskis's intent. The trial court, in granting summary judgment to Racevskis, necessarily resolved this conflict by weighing the evidence and choosing the inferences that favored Racevskis, the seller and moving party. This was improper. In ruling on a motion for summary judgment the trial court is not permitted to weigh the evidence or choose among reasonable inferences. Dupler v. Mansfield Journal Co.,Inc. (1980), 64 Ohio St.2d 116, 121, 18 O.O.3d 354, 357-358,413 N.E.2d 1187, 1191-1192. Rather, the court must evaluate the evidence, taking all permissible inferences and resolving questions of credibility in favor of the nonmoving party.Dupler, supra. When the evidence presented in this case is viewed in a light most favorable to Jacobs, the buyer and nonmoving party, reasonable minds could come to differing conclusions regarding whether certain repairs by Racevskis, the moving party, were undertaken for the purpose of correcting existing defects in the house or for the purpose of concealing those existing defects from potential buyers. Accordingly, genuine issues of material fact exist, and the trial court's award of summary judgment was improper. Jacobs's assignments of error are sustained. *Page 8 The judgment of the trial court is reversed and the cause is remanded for further proceedings. Judgment reversed and cause remanded. BROGAN, P.J., and WOLFF, J., concur.

2016-07-06 06:42:24.942838+00

Bryant

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 84 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 85 Relator, Florence C. Odita, filed this original action on October 31, 1990, requesting that this court issue a writ of mandamus ordering respondents, Ohio Department of Human Services ("ODHS") and Pamela Hyde, Director of ODHS, to comply with the June 22, 1988 order of the Ohio Equal Employment Opportunity Coordinator ("Coordinator"). The order, which was based upon a finding of probable cause that relator had been discriminated against on the basis of race in the filling of two positions in ODHS, directed respondents to immediately award relator a position at the division chief level, along with back pay and other benefits retroactive to the date on which the first of the these positions was filled. Respondents have moved to dismiss the complaint for failure to state a claim upon which relief may be granted, or, in the alternative, for summary judgment. In ruling on a motion to dismiss pursuant to Civ.R. 12(B)(6), we examine only the allegations of relator's complaint. Assuming those allegations to be true, as we must for purposes of a Civ.R. 12(B)(6) motion, we will dismiss the complaint only if no set of facts exists which would entitle relator to relief under the allegations of her complaint. O'Brien v. University Community Tenants Union,Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. In ruling on a motion for summary judgment pursuant to Civ.R. 56, we may consider matters outside the allegations of relator's complaint. In accordance with Civ.R. 56, we consider the evidence most strongly in favor of the nonmoving party; and we will grant summary judgment only if no genuine issue of fact exists, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. Harless v. Willis DayWarehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73,375 N.E.2d 46. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which the party bears the burden at trial. Wing v. Anchor Media, Ltd. of Texas (1991),59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus (citing Celotex v. Catrett [1986], 477 U.S. 317,106 S.Ct. 2548, 91 L.Ed.2d 265, approved and followed). *Page 86 Consequently, we apply the Civ.R. 12(B)(6) standard to the extent that respondents raise issues solely within the allegations of relator's complaint, and the Civ.R. 56 standard to the extent that respondents raise issues outside the complaint. To obtain a writ of mandamus, relator must demonstrate that she has a clear legal right to relief, that respondents have a clear legal duty to perform the requested act, and that she has no plain and adequate remedy at law. State ex rel. Berger v.McMonagle (1983), 6 Ohio St.3d 28, 29, 6 OBR 50, 50-51,451 N.E.2d 225, 226. Respondents first argue that relator has failed to establish the existence of a clear legal duty entitling her to a writ of mandamus, because she has identified no authority requiring their compliance with the Coordinator's order. Relator contends in response that the Director of the ODHS has a legal duty to comply with the June 28, 1988 order of the Coordinator by virtue of Ohio Adm. Code 123:1-49-36 and Executive Order 87-30. Ohio Adm. Code 123:1-49-36 provides that the decision of the division, by its Coordinator, is final with regard to employment discrimination complaints filed by state employees.1 Executive Order 87-30 provides that the Coordinator "shall possess the full authority to direct" state departments and agencies to "take any action the Coordinator deems appropriate" in the area of equal employment opportunity and directs the Director of the Department of Administrative Services to promulgate regulations pursuant to R.C. Chapter 119 in order to implement the Governor's equal employment opportunity policies.2 Relator argues that the combination of the executive order and the regulations legally binds the director to comply with the Coordinator's order. *Page 87 Administrative rules enacted pursuant to a specific grant of statutory authority have the force and effect of law. Doyle v.Ohio Bur. of Motor Vehicles (1990), 51 Ohio St.3d 46,554 N.E.2d 97, paragraph one of the syllabus; Youngstown Sheet Tube Co.v. Lindley (1988), 38 Ohio St.3d 232, 234, 527 N.E.2d 828, 830. However, an administrative agency can only exercise those powers conferred upon it by the Constitution or the statute which created it or vested it with power. In re Application of MiltonHardware Co. (1969), 19 Ohio App.2d 157, 160, 48 O.O.2d 266, 268, 250 N.E.2d 262, 265. R.C. 121.04 creates within the Department of Administrative Services the Office of Equal Employment Opportunity Coordinator, and R.C. 121.07 authorizes the Director of Administrative Services to exercise the powers and perform the duties vested by law in that department, and to "prescribe rules for * * * the performance of its business." Given the statutory placement of the Office of Equal Employment Opportunity Coordinator within the Department of Administrative Services, the duties of that department encompass the duties of the Office of Equal Employment Opportunity Coordinator; hence, the Department of Administrative Services may prescribe regulations relating to the performance of the duties of the Office of Equal Employment Opportunity Coordinator. In accordance with the foregoing statutes, the Director of Administrative Services has promulgated regulations related to equal opportunity in state government, thereby establishing a framework for addressing employee assertions that discrimination on the basis of race, color, religion, sex, national origin, age, or handicap has resulted in a denial of employment benefit, such as promotion. See Ohio Adm. Code Chapter 123:1-49. These regulations provide that the decision of the Coordinator as to a discrimination complaint is "final"; that the agency shall take remedial action, including at least one such action from a specified list, upon a finding by the agency or the Coordinator that the complainant had been discriminated against; and, that the agency shall promptly notify the division that such corrective action has been taken. Ohio Adm. Code 123:1-49-36 and123:1-49-38. In the present case, the Coordinator made a determination, pursuant to established regulations, that relator had been denied a promotion on account of race and issued an appropriate order that relator be given relief retroactively. Under the regulations in place, the Coordinator's final decision has the force of law and is a legally binding determination that respondents are compelled to follow. Respondents, relying upon State ex rel. Armstrong v. Davey (1935), 130 Ohio St. 160, 163, 4 O.O. 38, 39-40, 198 N.E. 180, 181, contend that mandamus will not lie to enforce even an order that is binding upon them, as compliance with the *Page 88 order is an executive act dependent upon the judgment or discretion of the Director of ODHS. However, Davey, makes clear that mandamus will lie to compel the performance of duties that are ministerial in nature and do not require the exercise of official judgment and discretion. Contrary to respondents' assertions, compliance with the order is not an executive act dependent upon the exercise of respondents' judgment, but, rather, is a ministerial act that respondents may perform "`in obedience to the mandate of legal authority, without regard to or the exercise of [their] judgment upon the propriety of the act being done.'" State ex rel. Traugerv. Nash (1902), 66 Ohio St. 612, 618, 64 N.E. 558, 559. Having determined that the order is binding upon respondents, they have "no discretion as to acting, however much discretion [they] must necessarily exercise in selecting" the particular position to be awarded to relator. Id. Respondents also argue that relator has adequate legal remedies under R.C. Chapter 4112 and Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title 42, U.S. Code, because she can file discrimination actions under state and federal law. Relator contends that these legal remedies are inadequate in the present case, however, because she is not seeking an initial judicial determination that discrimination has occurred; rather, because she has already received a determination of discrimination from the Coordinator, she simply seeks to enforce the rights flowing from that determination. Thus, relator essentially contends that a remedy is inadequate when it requires the holder of that right to relitigate the merits of her case in order to obtain enforcement of those rights. The conclusion that these existing legal remedies are inadequate presupposes, however, that the Coordinator's decision granted relator vested legal rights distinct from those which she possesses under R.C. Chapter 4112 and Section 2000e etseq., Title 42, U.S.Code. Thus, we examine the nature of the rights created by the Coordinator's determination. Ohio Adm. Code 123:1-49-36 gives the complainant the right to a final decision by the Coordinator. The "final decision" language in Ohio Adm. Code 123:1-49-36 initially appears somewhat inconsistent with the requirement of Ohio Adm. Code 123:1-49-36 and 123:1-49-39 that the complainant be notified of her right to file an appropriate charge complaint with the Ohio Civil Rights Commission or United States Equal Employment Opportunity Commission under R.C. Chapter 4112 and Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title 42, U.S.Code. The apparent inconsistency, however, can be resolved by the complaint structure established by Ohio Adm. Code Chapter123:1-49. The notice required by Ohio Adm. Code 123:1-49-36 and123:1-49-39 simply informs a complainant of other available legal actions which a complainant can, if she or he chooses, pursue outside Ohio Adm. Code Chapter 123:1-49 by bringing a *Page 89 charge complaint under state or federal anti-discrimination laws applicable to the public at large; the reasons for pursuing such alternate remedies may vary, including the availability of other remedies outside Ohio Adm. Code Chapter 123:1-49. The provisions of Ohio Adm. Code Chapter 123:1-49 establish an internal procedure binding on state agencies and "final" for that purpose only. Respondents' argument implicitly suggests that the regulations require a complainant to enforce her rights in noncompliance situations like the present case by commencing adversarial legal actions in the Ohio Civil Rights Commission pursuant to R.C. Chapter 4112. The problem with such an interpretation is that it ignores the mandatory remedial language of Ohio Adm. Code 123:1-49-38. The regulation clearly states: "(B) * * * When an agency, or the Division, finds that an employee of the agency was discriminated against and as a result of that discrimination was denied an employment benefit, or an administrative decision adverse to said employee was made, the agency shall take remedial actions which shall include one or more of the following * * *." (Emphasis added.) The mandatory language of Ohio Adm. Code 123:1-49-38, and its detailed list of remedies, together with the "final" decision language of Ohio Adm. Code 123:1-49-36, do not contemplate that a complainant be required to "appeal" a favorable decision of the Coordinator to the Ohio Civil Rights Commission to obtain enforcement. Moreover, such an interpretation would essentially require a complainant successful at the administrative level to relitigate the merits of the discrimination claim, would encourage administrative officials to disregard the equal employment mandates of the Coordinator, and would render meaningless the entire administrative procedure set forth in Ohio Adm. Code Chapter 123:1-49. Thus, Ohio Adm. Code Chapter 123:1-49 seems to recognize that it does not supplant or eliminate other rights state employees may have by virtue of existing state and federal laws; rather, it provides rights to state employees separate from those set forth elsewhere. Further, in providing those rights, Ohio Adm. Code 123:1-49 binds the state to the Coordinator's final decision and creates a clear legal duty on respondents to comply with the Coordinator's decision. Thus, relator's rights are inadequately protected by subsequent action in the Ohio Civil Rights Commission and are capable of being enforced in mandamus. Respondents next raise arguments which involve events which occurred subsequent to the order. As respondents' remaining arguments raise matters not contained in relator's complaint, we address these matters under the summary judgment standard. *Page 90 Respondents first contend that subsequent events justify their refusal to comply with the order; and, that this justification negates a finding that a clear abuse of discretion sufficient to support issuance of a writ of mandamus to compel the performance of a discretionary act. Having determined that compliance with the order does not involve performance of a discretionary act, we reject this argument. Furthermore, even if no genuine issue of material facts existed, respondents have failed to demonstrate that they are entitled to judgment as a matter of law. Specifically, respondents contend that the federal court's finding that relator is unable to prevail on the Title VII claims she filed after the order was issued supersedes the Coordinator's finding and order. This contention is inconsistent with both the express language of Ohio Adm. Code 123:1-49-36 that the Coordinator's decision shall be final, and the spirit of Ohio Adm. Code 123:1-49-39, that the filing of a complaint under Ohio Adm. Code Chapter 123:1-49 "does not in any way limit the rights of an individual to file a charge with the Ohio Civil Rights Commission or the Equal Employment Opportunity Commission." Thus, relator's failure to prevail on her federal claims does not preclude her from enforcing relief previously awarded under Ohio Adm. Code Chapter 123:1-49. Respondents further contend refusal to comply with the order is within their discretion in light of the Inspector General's allegations that relator engaged in misconduct after the order was issued. However, respondents have pointed to no authority that grants them the discretion to modify or deny the relief ordered by the Coordinator because of relator's subsequent conduct. Respondents cannot indefinitely delay compliance with the Coordinator's order in the hope that some subsequent event will justify noncompliance; their only options are to comply with the order or to seek reconsideration of the order pursuant to Ohio Adm. Code 123:1-49-37. Finally, respondents urge that, if mandamus does lie to enforce the order, this court should nevertheless refuse to issue a writ of mandamus by invoking the doctrine of laches, contending that relator's delay in bringing suit to enforce the order has materially prejudiced respondents. However, respondents have merely alleged that they were materially prejudiced by relator's delay; they have submitted no affidavits or other documentation in support of their allegation. Respondents' bare allegation of material prejudice being insufficient to establish that no genuine issue of fact remains in dispute, respondents have not met the burden imposed upon them by Civ.R. 56(C) with regard to their laches argument. Having failed to satisfy the standard for either dismissal pursuant to Civ.R. 12(B)(6) or summary judgment pursuant to Civ.R. 56, respondents' motion is *Page 91 denied. Further, there being no facts at issue, and relator's right to a writ being clear, relator's requested writ of mandamus is granted. Motion to dismiss deniedand writ granted. WHITESIDE and BOWMAN, JJ., concur. 1 Ohio Adm. Code 123:1-49-36 provides in part: "The Division of Equal Employment Opportunity for State Personnel shall upon appeal review the complaint file and all relevant written information made to the Division. * * * When corrective action is ordered, the agency shall report promptly to the Division that the corrective action has been taken. The decision of the Division is final, but shall contain a notice of the right to file a charge affidavit with the Ohio Civil Rights Commission in accordance with Chapter 4112 of Ohio Revised Code, and with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964." 2 Executive Order 87-30 reads in relevant part: "* * * I hereby direct the Director of the Department of Administrative Services to promulgate administrative rules, pursuant to Chapter 119 of the Ohio Revised Code, regarding the equal employment opportunity and affirmative action policy set forth in this Executive Order. I hereby direct and order that the said rules and regulations shall be applicable to all state agencies and appointing authorities under my jurisdiction. I further direct and order that the State Equal Employment Opportunity Coordinator, set forth in the said rules and regulations, shall have responsibility for the coordination of Ohio's programs and activities."

2016-07-06 06:42:25.330931+00

Young

This matter is before this court upon the appeal of Joan Krone, appellant, from a judgment of the Franklin County Court of Common Pleas in favor of appellee, Ohio Dominican College ("ODC"). Appellant had been employed at ODC since 1967. Prior to the time this dispute arose, appellant was a tenured assistant professor and chairperson of the mathematics department. In 1982, ODC received a Federal Title III Challenge Grant to provide funding for establishing a computer science degree program at ODC. The terms of the grant permitted funds to be used to pay a person's salary, tuition and books in order for him to qualify and gain the credentials and expertise necessary to develop the computer science degree program. It was the understanding of both parties that appellant would acquire the needed credentials and return to ODC full time to develop and head the computer science degree program. Appellant and appellee made the following "agreement": appellant was granted leave to attend the Ohio State University ("OSU") for the 1982-1983 academic year to pursue a Master's degree in computer science. ODC agreed to pay appellant's salary and provide her with benefits. Additionally, ODC agreed to reimburse appellant for tuition, fees, and textbooks. Upon her return, appellant agreed to teach full time at ODC for a period twice as long as the period of paid leave and reimburse ODC if she chose to leave employment before her teaching obligation was satisfied. The continuation of this agreement into the 1983-1984 academic year was negotiable. Under this agreement, appellant was still obligated to perform her department chairperson duties. In February 1983, appellant was promoted to Associate Professor; in June 1983, she completed the Master's degree program-in computer science. On June 28, 1989, the President of ODC, Sister Mary Andrew Matesich, sent a letter to appellant detailing a "payback" scheme for appellant's 1982-1983 leave. In July 1983, appellee and appellant entered into another *Page 30 agreement: ODC granted a leave to appellant for the 1983-1984 academic year. ODC would continue to pay her salary and provide her with benefits and reimburse the cost of her tuition, fees and textbooks from July 1, 1983 to December 31, 1983. Appellant was granted leave without pay from January 1 through June 30, 1984, but with protection of her tenured position until the fall of 1984, according to the contract terms. Appellant agreed to perform six other tasks during the 1983-1984 academic year. Appellant agreed to attend OSU full time while enrolled in a computer science degree program and subsequently to teach full time at ODC for twice the length of time as the period of paid leave. In April 1984, appellant met with Joan Campbell, Vice President for Academic Affairs to discuss appellant's duties for the 1984-1985 academic year. On April 9, 1984, ODC offered appellant a one-half time contract for the 1984 fall semester. The six-month contract provided compensation in the amount of $5,500. Appellant signed and returned the contract but changed the salary amount to $10,000. On April 30, 1984, the ODC president sent appellant a letter rejecting appellant's previous counteroffer, and offered appellant a full-time teaching contract at a salary amount of $22,000. The letter included a provision that if the contract was not signed and returned by May 10, 1984, then ODC would interpret that conduct as appellant's resignation and forfeiture of tenure. On May 9, 1984, appellant sent a letter to the ODC president explaining her objections to the proposed contract and requested a meeting. On May 17, 1984, appellant met with the ODC president and the academic vice president. It was ODC's position that there would be no further negotiating on the contract offered to appellant. However, there is evidence in the record that ODC was negotiating with Kenneth Solveson during this same time period. Kenneth Solveson was offered a contract by ODC on May 21, 1984 and accepted the twelve-month position at a salary of $25,000. On May 30, 1984, the academic vice president sent appellant a letter indicating that appellant had forfeited her tenure by failing to sign and return the proposed contract. The letter also indicated that appellant would have to begin reimbursing ODC by July 1, 1984. On June 13, 1984, appellant sent a letter to the ODC president and the vice president of academic affairs in response. She asked that: (1) her two-year leave be considered as a retroactive sabbatical; (2) outlined the tasks she had performed in preparation of her return to ODC to develop the computer science degree program; and (3) indicated that she could not sign the proposed contract since the salary and the responsibilities listed were unreasonable. Appellant also requested that a copy of her letter be given to the Rank, Tenure and Promotion Committee for consideration of her request. The Rank, Tenure and Promotion Committee consists of the president, vice president for academic affairs, and five full-time elected teaching faculty members. Thus, two members of the Rank, Tenure and Promotion Committee, Sister Mary Andrew Matesich and Dr. Joan Connell, had already been informed. Appellant's request was not considered by the Rank, Tenure and Promotion Committee. On June 19, 1984, James Albers, ODC's attorney, sent a letter to appellant demanding payment in the amount of $30,501. On July 6, 1984, appellant responded to his letter explaining her rationale that the terms of ODC's proposed contract were unreasonable and, thus, she was unable to *Page 31 sign it. ODC has a faculty handbook which sets forth, among many other things, procedures for grievances and the dismissal of faculty. In October 1984, appellant filed this action against appellee for reimbursement of salary, fringe benefits, tuition, fees and textbook moneys which were expended on her behalf during the 1982-1984 academic years. Appellant filed a counterclaim for wrongful termination. After a trial to the bench, the trial court granted judgment in favor of appellee in the amount of $30,501. Thereafter, appellant filed this appeal and asserts the following seven assignments of error: "I. The trial court erred, as a matter of law, by failing to conclude that appellant was denied a pretermination hearing in violation of the due process of law requirement of the Ohio Constitution and the 14th Amendment of the U.S. Constitution. "II. The trial court finding that appellee dealt in good faith with appellant is against the manifest weight of the evidence. "III. The trial court finding that appellant did not file a complaint with the Rank, Tenure and Promotion Comittee is against the manifest weight of the evidence. "IV. The trial court erred, as a matter of law, by concluding that appellant's failure to return to faculty status as offered by appellee constituted a resignation, forfeiture and termination of her tenure. "V. The trial court erred by failing to find that appellee discriminated against appellant with the hiring of Solveson. "VI. The final order of the trial court granting judgment to appellee is against the manifest weight of the evidence. "VII. The final order of the trial court dismissing appellant's counterclaim is against the manifest weight of the evidence." Appellee has filed the following cross-assignment of error: "I. The trial court erred in failing to grant [appellee] prejudgment interest at the rate of 10% per annum commencing July 1, 1984, based upon breach of contract of appellee/defendant Joan Krone." Appellant's assignments of error two, three, four, and six are interrelated and the disposition of these assignments of error will necessarily determine the issues germane to this appeal. Appellant asserts that the trial court's judgment is against the manifest weight of the evidence on the basis that: (1) appellee did not negotiate in good faith; (2) appellant filed a complaint with the Rank, Tenure and Promotion Committee; and (3) appellant did not resign from her tenured position. The concept of "tenure" is a source of many rights and is unique to each set of given circumstances considering whether the setting is a public or private institution, and depending upon whether the source of the rights is statutory, contractual or constitutional. Tenure bestows upon a person the right to continue employment and, in the facts before this court, the tenure agreement between appellant and ODC is a contract which is to be considered separate from the other agreements made between the parties and discussed herein. In analyzing the separate tenure agreement between the parties, it is apparent that the source of appellant's tenure rights is contractual in nature. The Faculty Handbook, Section 7(A) states as follows: "Section 7. Dismissal of Faculty "A) An appointment with continuous tenure is terminable by the institution only for grave cause or on account of extraordinary financial *Page 32 emergencies. Grave cause shall include demonstrated incompetence, crime, or similar matters." Clearly, ODC was not experiencing an extraordinary financial emergency which would serve as a basis for terminating appellant's employment. Thus, this court needs to determine whether appellant's conduct constituted "grave cause" as defined in Section 7(A) of the Faculty Handbook. The parties were negotiating appellant's contract for the 1984-1985 academic year and could not reach an agreement as to appellant's teaching assignment, additional responsibilities, or salary. Appellant was also trying to negotiate terms, in the alternative, whereby her thirty-six-month teaching obligation to ODC would be waived in consideration for her teaching a semester and forgoing her salary. It is important to emphasize that the agreement which was being negotiated by the parties was something different and separate from the contract for tenure between the parties. When the parties seemed to have reached an impasse, the President of ODC, Sister Mary Andrew Matesich, wrote the following letter to appellant, dated April 30, 1984: "It is not possible to accept the contract for employment for the 1984-85 academic year as you have amended it. * * * Ohio Dominican College is offering you a fulltime reappointment as a tenured faculty member with the rank of Associate Professor in the Department of Mathematics and Computer Science for the academic year 1984-85 at a salary of $22,000.* * * "The responsibilities included in this contract will include teaching five courses and performing the administrative duties for the computer science program which are listed below. "* * * "Please sign and return the enclosed contract by May 10, 1984.If the contract is not received by that date, its absence willbe interpreted as your resignation from the faculty and yourforfeiture of tenure." (Emphasis added.) In examining the Faculty Handbook, Section 4, Article IV states as follows: "Section 4. Faculty Load Policy. "Full load shall ordinarily consist of teaching three courses per semester * * *." Since a full load is normally three courses and appellant's contract required her to teach five courses, appellant found the terms of the proposed contract to be more than a fulltime commitment and totally unrealistic. Consequently, she did not sign or return the proposed contract to Sister Mary Andrew Matesich and requested a meeting. Appellant responded to Sister Mary Andrew Matesich and Dr. Connell in a letter dated June 13, 1984: "The purpose of this letter is to request, while I am still a tenured member of the Ohio Dominican College faculty, that my leave taken during academic year 1982-83 and the first half of 1983-84 be considered as retroactive sabbatical. * * * "* * * "During the spring of 1984 I made efforts to negotiate a contract for my return to teaching at Ohio Dominican College, requesting that consideration be given to my 14 years of service, my tenure, my rank as Associate Professor, my credentials — an M.S. in Math, a Ph.D. candidate in Computer Science. The three contracts and suggested revisions are on file. The third contract which offered only $22,000 for a list of responsibilities that is really more than a full-time committment [sic] was accompanied by a letter stating that either I must sign that contract by May 10th or Ohio *Page 33 Dominican College would take away my tenure. "I could not sign the proposed contract because both the salary offered and the responsibilities listed were not reasonable. "I request that a copy of this letter be given to the Rank, Tenure, and Promotion Committee for its consideration of my request." Appellant's conduct, in not signing and returning a proposed contract that included terms of employment which were unacceptable to her, cannot serve as the basis for ODC terminating appellant for grave cause as set forth in Section 7(A) in the Faculty Handbook. Furthermore, upon review of the record, there is no contractual provision in the Faculty Handbook which ODC can invoke that grants authority to ODC to unilaterally demand the signing and returning of a contract from a tenured professor by a specified date, and interpret the failure of that action to be forfeiture of tenure. The record is devoid of any written letter of resignation, and, although ODC could interpret appellant's failure to return the proposed contract as a rejection of the counteroffer, it could not terminate appellant's tenured position without a finding of grave cause without violating the separate tenure agreement. The only provision in the Faculty Handbook which is remotely related to a time demand is Section 6(A), which states that if a faculty member intends to decline a renewal contract he/she shall give notice no later than two weeks after being offered the position. However, there is no evidence in the record which indicates appellant's intention not to renew her employment with ODC. To the contrary, appellant signed and returned the April 20, 1984 contract proposal and added her salary modification to the terms of employment. Thus, appellant responded in the affirmative that she intended to resume her employment at ODC, but not without some further negotiation regarding the terms of the proposed contract which she considered to be unreasonable, and by the standards set forth in the Faculty Handbook, were unreasonable. Furthermore, the contract between appellant and ODC for the term January 1 through June 30, 1984 states, in pertinent part: "The terms are leave without pay with no fringe benefits but protection of the tenured position until fall of 1984." Thus, appellant had a contractual right to continued employment until the fall of 1984 unless there was a finding of grave cause which would terminate her employment before that time period. Furthermore, in appellant's June 13, 1984 letters to Sister Mary Andrew Matesich and Dr. Connell, appellant requested that a copy of her letter be given to the Rank, Tenure and Promotion Committee for consideration of her request. The Faculty Handbook requires that such a letter be sent to the committee directly by the person making a request. The Rank, Tenure and Promotion Committee consists of Sister Mary Andrew Matesich and Dr. Connell and five other faculty members. Thus, although appellant did not address her request directly to the committee perse, two of the committee members were presented with her request and they did not place the issue before the committee as a whole. Accordingly, ODC breached appellant's contract for tenure by unilaterally setting forth a condition for continued employment. ODC made appellant's tenured position conditional upon the signing and returning, by May 10, 1984, of a proposed employment contract, a contract whose terms were totally unacceptable to appellant and which terms exceeded *Page 34 the reasonable expectations as set forth in the Faculty Handbook. Having no evidence before it regarding an affirmative act or written intent of voluntary resignation by appellant, the trial court erred when it equated as "grave cause" appellant's conduct in not signing and returning the proposed employment contract by May 10, 1984. The trial court's decision was against the manifest weight of the evidence. Accordingly, appellant's second, third, fourth and sixth assignments of error are well-taken and are sustained. In the first assignment of error, appellant asserts that she was denied a hearing in violation of the Due Process Clauses of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution. Constitutional questions will not be decided until the necessity for their decisions arises.State, ex rel. Lieux, v. Westlake (1951), 154 Ohio St. 412, 43 Ohio Op. 343, 96 N.E.2d 414, paragraph one of the syllabus. Since this court's disposition of appellant's second, third, fourth and sixth assignments of error obviates the need to address the constitutional issues asserted in the first assignment of error, that assignment of error is not well-taken and is overruled. The fifth assignment of error asserts that the trial court erred by failing to find that the appellee discriminated against appellant when it hired Kenneth Solveson. Upon review, the evidence fails to show that Solveson was hired to perform the job duties that were being negotiated and offered to appellant. The agreement between ODC and appellant specifically set forth that appellant would work full time to establish and develop a computer science major upon her return to ODC. Initially, however, ODC offered appellant only a part-time position upon her return. Although appellant accepted the part-time position, she modified the offer by increasing the amount of salary to be paid to her. ODC rejected this counteroffer and only then offered appellant a full-time position, which contract appellant rejected due to its unreasonable terms. It is apparent from the record that Solveson negotiated for, and finally accepted, only a full-time, twelve-month teaching position. Since appellant initially accepted ODC's offer of a part-time position, she obviously accepted an alteration of the original agreement between the parties which required appellee to employ appellant on a nine-month, full-time basis to establish and develop a computer science major at ODC. In initially accepting ODC's part-time proposal which was less demanding of appellant's time, appellant cannot now assert a claim for discrimination when the record indicates that Solveson was offered and accepted a twelve-month, full-time position. Accordingly, appellant's fifth assignment of error is not well-taken and is overruled. In her seventh assignment of error, appellant asserts that the dismissal of her counterclaim was against the manifest weight of the evidence. Upon review, and in light of this court's disposition of appellant's second, third, fourth and sixth assignments of error, it was against the manifest weight of the evidence for the trial court to dismiss appellant's counterclaim since the evidence overwhelmingly supports the conclusion that ODC breached its tenure agreement with appellant. Appellant is entitled to reinstatement in order to meet her thirty-six-month teaching obligation to ODC. Accordingly, appellant's seventh assignment of error is well-taken and is sustained. Appellee asserts in its cross-assignment of error that the trial court erred in not granting prejudgment interest. Since this court has determined that the matter herein warrants reversal, *Page 35 appellee's cross-assignment of error is not well-taken and is overruled. Based on the foregoing, appellant's second, third, fourth, sixth and seventh assignments of error are well-taken and sustained. Appellant's first and fifth assignments of error and appellee's cross-assignment of error are not well-taken and are overruled. The judgment of the Franklin County Court of Common Pleas is reversed and the matter is remanded for further proceedings to institute appellant's reinstatement or, in the alternative, to determine the amount of damages. Judgment reversedand cause remanded. BOWMAN, J., concurs. STRAUSBAUGH, J., dissents.

2016-07-06 06:42:30.295452+00

Montgomery

The appeal to this court is on questions of law and fact, and is submitted upon a transcript of the evidence taken in the Common Pleas Court and a little additional evidence taken in this court. The essential relief sought by plaintiffs, appellants herein, is an accounting. The defense is essentially twofold. First, it is claimed that there is no proof of a contract between the parties sufficient to justify the granting of any relief; and, second, that the purpose of the principal plaintiff, Earl McClanahan, in entering into whatever arrangement was made, was to hinder, delay and defraud his creditors, and, not coming into court with clean hands, he cannot ask for any relief. The record shows a maze of contradictions and also of irrelevancies. The two principals are brothers. The conduct of neither of them would measure up to any high test of business integrity, and the testimony *Page 232 of neither of them justifies any claim of complete reliability. The inconsistencies in the pleadings of plaintiffs and many of the inconsistencies in the testimony of each of the brothers may be disregarded, however, in view of our conclusions as to the ultimate facts and the law applicable thereto. Those conclusions seem to us to be inescapable, and a recital of all the claims and of the details of the various maneuvers would answer no useful purpose. As to the facts, we limit ourselves to a statement of what we regard as basic and decisive. The plaintiff Earl McClanahan had started a small jewelry store and watch repair shop in Akron. By 1934 he had assets which he claims were worth approximately $4,000, but he could not meet the claims of creditors against him, and for practical purposes was insolvent. He induced James McClanahan, also insolvent, to come from West Virginia to Akron and to join him in the business. After a short time they agreed upon the formation of a corporation, and we find, as the Common Pleas Court found, "that there was an agreement to divide the stock fifty-fifty." Two hundred and fifty shares were authorized. One hundred shares were issued promptly to James or as he directed. Later, another fifty shares were similarly issued. None was ever issued to or for Earl. His shares were not to be issued until he should settle with his creditors. Some years later Earl did settle with his creditors for approximately ten per cent of the claims, and in making some of these settlements he made false statements as to his financial ability, and in at least one instance made a false statement under oath. In the meantime, the business had become valuable, and when James, by virtue of the stock he held and his claim to sole ownership, excluded Earl from participation *Page 233 in the business, it was worth $40,000. The chief producer of the assets was a contract procured by Earl from the General Electric Company for the sale of its products. In other words, Earl had the business. He is entitled to chief credit for making the business profitable. He brought his then impecunious brother into the business. That brother made the contribution expected of him, but the latter now seeks to exclude from participation in the business or its profits the man chiefly responsible for both. The reason for such attempted exclusion, other than the indefiniteness of the contract, which we have hereinbefore resolved, is that Earl, in entering into the arrangement, did so for the purpose of defrauding his creditors in whole or in part. Is such a defense available to the brother making the claim? As we see it, that is the question for us to decide, in view of our stated conclusions as to the facts. Early in our consideration of the case, the thought came to us that for James to succeed on such a claim would be a gross example of unjust enrichment. What is "unjust enrichment?" 43 Words and Phrases, 272, suggests three definitions, the substance of which is that one is unjustly enriched if the retention of the benefit would be unjust; that one should not be allowed to profit or enrich himself inequitably at another's expense; and that there may be a recovery where the receipt by one person from another of a benefit and the retention of that benefit would be unjust. An interesting suggestion concerning this doctrine appears in 66 Corpus Juris, 32, wherein it is described as a phrase much used to designate a principle which lies at the foundation of the great bulk of quasi-contracts *Page 234 — that one shall not unjustly enrich himself at the expense of another. We come now to the questions whether the so-called "clean hands" doctrine is applicable in the instant case and whether, where one has a fault attached to him in a transaction, he can still claim relief against an unjust claim asserted by another. In the course of the opinion in the case of Pride v. Andrew,51 Ohio St. 405, 414, 38 N.E. 84, where the court discussed the proposition that neither party to a fraudulent conveyance can be aided in a court of justice, there is added this interesting proposition: "There are cases, however, seemingly at variance with this rule, in which aid was extended to grantors who were in delicto, but not in pari delicto with the grantees. But these cases are exceptions to the well-defined and almost universal rule, and rest upon facts not existing in the case before us. Where there are different degrees of guilt as between the parties to the fraudulent or illegal transaction, it was said in Roman v. Mali,42 Md. 513, that as an exception to the general rule, if one party act under circumstances of oppression, imposition, undue influence, or at great disadvantage with the other party concerned, so that it appears that his guilt is subordinate to that of the defendant, the court in such case will relieve." In 30 Corpus Juris Secundum, Equity, Section 93, referring to this proposition, this statement is made: "It means that equity refuses to lend its aid in any manner to one seeking its active interposition, who has been guilty of unlawful or inequitable conduct in the matter with relation to which he seeks relief." In the instant case, the inequitable conduct of the plaintiff Earl McClanahan had nothing to do with his connection with the defendant James McClanahan, or with the claim which the former makes against the *Page 235 latter. And under the subject of Equity in 19 American Jurisprudence, Section 473, we find this statement: "The applicability of the maxim, `he who comes into equity must come with clean hands,' depends upon the connection between the complainant's iniquitous acts and the defendant's conduct which the complainant relies upon as establishing his cause of action. Relief is not to be denied because of general iniquitous conduct on the part of the complainant or because of the latter's wrongdoing in the course of a transaction between him and a third person." And in Section 474, Id., we find this: "If the alleged wrongful conduct of the complainant appears not to have injured, damaged, or prejudiced the defendant, the maxim may not be successfully invoked." In 4 Pomeroy's Equity Jurisprudence (5 Ed.), Section 1047, in a discussion of constructive trusts, this statement appears: "By the well-settled doctrines of equity, a constructive trust arises whenever one party has obtained money which does not equitably belong to him, and which he cannot in good conscience retain or withhold from another who is beneficially entitled to it * * *." And the Ohio rule, as stated in 27 Ohio Jurisprudence, Money Received, Section 2, is: "Where one receives money that in equity and good conscience belongs to another, the latter may recover it as money received to his use. In other words, `the action lies in every instance where one has come into possession of money which should in good conscience be refunded to another.'" Of course, law digests do not constitute the best authority for any proposition, but we have checked all the references hereinbefore made and they are justified *Page 236 by virtue of their annotations, and there are numerous decided cases referred to in the various digests, which sustain all that has been quoted herein. We direct attention in particular to one case — that ofLangley v. Devlin, 95 Wn. 171, 163 P. 395 — and to the last paragraph of the syllabus therein, which is: "In an action to recover an interest in corporate stock, secretly retained by defendants out of the purchase price on the sale of plaintiff's stock, it is no defense that the plaintiffs and defendants did not deal fairly with third parties who were interested in the sale and that plaintiffs did not make all persons interested in the subject matter parties to the suit; since the principle that he who comes into equity must come with clean hands does not apply to defeat the enforcement of a contract because a third party was defrauded, where the defendants first invited the fraud, the third party is not complaining but made common cause with the plaintiff, and there is no evil in the subject matter of the contract." Finally, it is our conclusion, and we must state, that James McClanahan, being in no sense connected with the people whom he claims were defrauded or with the alleged attempt to defraud them, and having profited as hereinbefore stated, is in no position to invoke the doctrine which he claims as an aid to him in retaining this property. And in this conclusion, no injustice is done him. It follows that there may be a decree for the plaintiffs, granting their right to an accounting from the defendants, and counsel for the plaintiffs may draw an entry accordingly. Decree accordingly. DOYLE, P.J., and STEVENS, J., concur. MONTGOMERY, J., of the Fifth Appellate District, sitting by designation in the Ninth Appellate District. *Page 237

2016-07-06 06:42:23.625791+00

OPINION {¶ 1} Appellant Terrance Williams appeals his conviction, in the Canton Municipal Court, for operating a motor vehicle under the influence. The relevant facts leading to this appeal are as follows. {¶ 2} At approximately 2:45 AM on February 3, 2005, appellant left his workplace on Dressler Road in Jackson Township, Stark County. He proceeded in his 1993 Jeep to Everhard Road and began heading toward the city of North Canton. By the time he reached the North Canton portion of Everhard, appellant was traveling at about twenty-four miles per hour, in a thirty-five mile per hour zone. Due to this slow speed, the Jeep caught the attention of North Canton City Police Patrolman Scott Carrel. The officer began following the Jeep, observing it turn right onto South Main Street (which becomes Cleveland Avenue after leaving the city limits). Carrel then observed the Jeep weave twice outside its lane of travel on South Main. A traffic stop was immediately effectuated. {¶ 3} After some initial colloquy with appellant, Carrel administered field sobriety tests and utilized a portable breathalyzer. Appellant was thereupon arrested and charged with one count of OVI, a first-degree misdemeanor, and one count of driving in marked lanes, a minor misdemeanor. Appellant was arraigned on February 4, 2005, and entered a plea of not guilty. On March 5, 2005, appellant filed a motion to suppress. Following a hearing on March 17, 2005, the motion was overruled. Appellant thereafter filed a plea of no contest to both charges. The trial court found him guilty, and sentenced him to twenty days in Oriana House, fifty hours of community service, a fine of three hundred dollars, and a one-year license suspension. {¶ 4} On April 26, 2005, appellant filed a notice of appeal. He herein raises the following two Assignments of Error: {¶ 5} "I. THE COURT ERRED IN FINDING THE ARRESTING OFFICER HAD PROBABLE CAUSE TO STOP APPELLANT. {¶ 6} "II. THE COURT ERRED IN FINDING THE ARRESTING OFFICER HAD REASONABLE GROUNDS TO SUSPECT APPELLANT HAD BEEN DRIVING UNDER THE INFLUENCE OF ALCOHOL." I. {¶ 7} In his First Assignment of Error, appellant contends the trial court erred in denying his motion to suppress as to the initial traffic stop. We disagree. {¶ 8} There are three methods of challenging, on appeal, a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. See State v. Fanning (1982), 1 Ohio St.3d 19,437 N.E.2d 583; State v. Klein (1991), 73 Ohio App.3d 486,597 N.E.2d 1141; State v. Guysinger (1993), 86 Ohio App.3d 592,621 N.E.2d 726. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. See State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95 Ohio App.3d 93, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 620 N.E.2d 906; Guysinger, supra. In the matter presently before us, we find appellant challenges the trial court's decision concerning the ultimate issue raised in his motion to suppress. Thus, in analyzing this Assignment of Error, we must independently determine whether the facts meet the appropriate legal standard. {¶ 9} It is well-settled law in Ohio that reasonable and articulable suspicion is required for a police officer to make a warrantless stop. Terry v. Ohio (1968), 392 U.S. 1,88 S.Ct. 1868, 20 L.Ed.2d 889. The reasonable and articulable standard is a lesser standard and not synonymous with the probable cause standard needed to place a person under arrest. Delaware v.Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. As a general matter, determinations of both reasonable suspicion and probable cause should be reviewed de novo on appeal. Ornelas v.U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663,134 L.Ed.2d 911, {¶ 10} The police cruiser's dashboard camera tape reveals appellant swerved within his lane of travel several times while on Everhard. This matches Officer Carrel's testimony. See Tr. at 8. There is no white line visible on the right-hand side of Everhard, perhaps due to the snow remnants pushed off the road surface. Nonetheless, although the tape reveals no "over-the-line" violations during this stage of travel, appellant's passenger-side tires appear to approach or nearly touch the snow bank several times. After appellant turned right (southerly) on South Main, the tape indicates he first veered slightly from his right lane, with a driver's side tire appearing to briefly roll directly onto the dashed white line separating the two southbound lanes of travel on South Main. After a few more seconds, appellant weaved to the left a second time and again rolled over the dashed white line with his driver's side tires. It is difficult to determine from the tape how much of the Jeep's tire surfaces stray to the left of the dashed white line in these latter instances, but Officer Carrel, in his testimony, answered in the affirmative that "* * * it looks like there are two occasions the Defendant actually goes outside of his lanes (sic)." Tr. at 8. At least the second instance was in the vicinity of what appears to be an area of damaged or patched asphalt.1 During the suppression hearing, Carrel answered in the affirmative that "the road's pretty chewed up there" and that there were "[p]otholes — that type of stuff" on that area of South Main. Tr. at 10. {¶ 11} Any traffic violation, even a de minimis violation, can form a sufficient basis upon which to stop a vehicle. Statev. Lambert (August 20, 2001), Stark App. No. 2001CA00089. "The severity of the violation is not the determining factor as to whether probable cause existed for the stop." State v.Weimaster (Dec. 21, 1999), Richland App. No. 99CA36. When determining whether or not an investigative traffic stop is supported by a reasonable, articulable suspicion of criminal activity, the stop must be viewed in light of the totality of circumstances surrounding the stop. See State v. Bobo (1988),37 Ohio St.3d 177, 524 N.E.2d 489, paragraph one of the syllabus. "Courts have also found that weaving within a lane can support an investigatory stop, even when such weaving itself is not illegal." State v. Flanagan (June 14, 2000), Wayne App. No. 99CA0045, citing State v. Gedeon (1992), 81 Ohio App.3d 617,618-619, 611 N.E.2d 972. {¶ 12} In the case sub judice, we find the record and the police videotape reveal the following factors were before Officer Carrel on February 3, 2005: (1) Appellant's Jeep was traveling eleven miles per hour under the posted speed limit; (2) The time was between 2 AM and 3 AM; (3) Although previously-fallen snow is seen off the road, the asphalt was cleared and visible; (4) Appellant's Jeep weaved several times within its lane while on Everhard, in a more pronounced fashion than merely slowly drifting within the lane; (5) Appellant then committed two apparent lane violations on South Main, albeit in an area of potholes or patched road surface. {¶ 13} Upon review, we conclude the above factors, when viewed in their totality, provided sufficient reasonable suspicion for the officer to proceed with the traffic stop. Accordingly, we are unpersuaded the trial court erred in denying the motion to suppress. {¶ 14} Appellant's First Assignment of Error is overruled. II. {¶ 15} In his Second Assignment of Error, appellant contends the officer did not have probable cause to arrest following the initial traffic stop. However, appellant's trial counsel agreed at the suppression hearing that the only issue before the court was that of the propriety of the initial traffic stop. See Tr. at 4. The Ohio Supreme Court has recognized that "[f]ailure on the part of the defendant to adequately raise the basis of his [warrantless search or seizure] challenge constitutes a waiver of that issue on appeal." City of Xenia v. Wallace (1988),37 Ohio St.3d 216, 218, 524 N.E.2d 889, citing State v. Carter (Utah 1985), 707 P.2d 656. {¶ 16} Appellant's Second Assignment of Error is therefore overruled. {¶ 1} For the foregoing reasons, the judgment of the Canton Municipal Court, Stark County, Ohio, is hereby affirmed. Wise, J. Boggins, P.J., and Hoffman, J., concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed. Costs to appellant. 1 Appellant urges that his vehicle had undergone recent suspension repair, and that he "was trying to avoid damaging the car to require more repairs." Appellant's Brief at 9. This information, of course, would not have been known to Officer Carrel when his decision to effectuate the stop was made.

2013-10-30 07:33:47.796229+00

Schiff

230 B.R. 287 (1998) In re A. ANGELLE, INC., d/b/a Lakeside Honda, Debtor. American Honda Finance Corporation, Plaintiff, v. A. Angelle, Inc., d/b/a Lakeside Honda, Calcasieu Marine National Bank of Lake Charles, Walter Umphrey, Jeff Branick, and The Calcasieu Parish School Board, Defendants. Bankruptcy No. 96-20205, Adversary No. 96-2011. United States Bankruptcy Court, W.D. Louisiana, Lake Charles Division. January 12, 1998. *288 *289 *290 Scott J. Scofield, Lake Charles, LA, for American Honda Finance Corporation. A.J. Gray, III, Lake Charles, LA, David F. Waguespack, New Orleans, LA, Patrick J. Johnson, Jr., New Orleans, LA, for Hibernia National Bank. Wade N. Kelly, Lake Charles, LA, for Rudy O. Young, Trustee. Glenn H. Steele, Jr., Beaumont, TX, for Walter Umphrey and Jeff Branick. Stephen C. Polito, Lake Charles, LA, for Calcasieu Parish School Board. REASONS FOR DECISION GERALD H. SCHIFF, Bankruptcy Judge. A. Angelle, Inc., d/b/a Lakeside Honda ("Debtor") filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code[1] on March 7, 1996 ("Petition Date"), and on that day an order for relief was duly entered. The Debtor remained in possession as no chapter 11 trustee was appointed. On July 15, 1996, the case was converted to a case under chapter 7. Rudy O. Young ("Trustee") is the duly appointed, qualified and acting chapter 7 trustee. This adversary proceeding was instituted by American Honda Finance Corporation ("AHFC") against the Debtor, Hibernia National Bank (successor by merger to Calcasieu Marine National Bank of Lake Charles) ("Hibernia"), Walter Umphrey ("Umphrey"), Jeff Branick ("Branick"), and the Calcasieu Parish School Board ("School Board")[2], to determine the extent, validity and rank of multiple security interests held by AHFC *291 and the defendants. These security interests encumber virtually all of the Debtor's assets. AHFC contends that its lien position on such assets is senior to all other claimants. Hibernia claims a first lien position in the Debtor's new and used vehicle inventory as well as the proceeds resulting from the sale of such vehicles. Hibernia also asserts a counterclaim against AHFC to recover $1.2 million which Hibernia paid to AHFC. Umphrey and Branick admit that they have subordinated their positions to those held by Hibernia and AHFC and simply request that their liens be ranked by the court in accordance with law. The Trustee, however, takes the position that none of the parties have or had liens on certain of the Debtor's assets, or alternatively, in the case of Hibernia, that any lien it may have had on the new cars or other assets has been released. The Trustee also asserts various counterclaims and cross claims attempting to avoid certain prepetition transfers allegedly made by the Debtor to AHFC and Hibernia within ninety days of the filing of the petition and certain postpetition payments made to Hibernia. I. FACTUAL BACKGROUND A. Prepetition History. American Honda Motor Company ("AHMC") awarded the Debtor a Honda automobile franchise ("Franchise") for the Lake Charles area market in 1990. In May 1991, the Debtor obtained new car floor plan financing from AHFC. AHFC secured its financing with a security agreement and a properly filed UCC-1 financing statement. The Debtor defaulted under its original floor plan with AHFC, resulting in AHFC filing suit against the Debtor in late 1991 or early 1992. In late 1992, the Debtor entered into a settlement agreement with AHFC ("1992 Settlement Agreement") to repay the unpaid floor plan balance ($559,883.97) in monthly installments, plus interest at a variable rate. Also, in late 1992, the Debtor executed a Wholesale Financing Agreement ("WFA") which granted AHFC a security interest in the following: All Debtor's personal property now owned or hereafter acquired, including, but not limited to, fixed assets, including all machinery, shop equipment, tools, business and office equipment, furniture, fixtures, supplies, furnishings, all inventory of new and used parts, all proceeds, insurance proceeds, accessories, additions, accessions, and replacements of any of the foregoing, all accounts, accounts receivable, contract rights, chattel paper, documents, instruments, Dealer Reserve Accounts, manufacturer's rebates, service contracts, general intangibles, equipment, goods and inventory, including without limitation, all new and used vehicles, tractors, trailers, semi-trailers, service vehicles and repossessed vehicles, parts and accessories whether held for sale or lease, and all vehicles, parts and accessories of like kinds of types now owned or hereafter acquired from manufacturers, distributors, or sellers by way of replacement, substitution, addition or otherwise, and all rents receivable under lease and rental agreements and any and all leases, for either real or personal property. AHFC properly filed a second UCC-1 financing statement in connection with the WFA. In consideration of the 1992 Settlement Agreement, the WFA, the 1992 UCC-1 financing statement and other documents, AHFC agreed to provide additional floor plan financing for the Debtor's new car inventory under conditions set forth in the WFA. In order to facilitate the Debtor's payment obligation under the 1992 Settlement Agreement, Umphrey and Branick loaned the Debtor the sum of $200,000.00. On April 27, 1993, Umphrey and Branick were granted a security interest in certain of the Debtor's assets. They properly perfected their security interest by filing a UCC-1 financing statement on May 14, 1993. As part of the consideration for the 1992 Settlement, however, Umphrey and Branick subordinated the rights of any security interest they held to any security interest held by AHFC. In the spring of 1995, AHFC agreed to provide floor plan financing for the Debtor's *292 used cars. Also in the spring of 1995, the Debtor began negotiations with Hibernia for Hibernia to provide floor plan financing for Debtor's used cars. Beginning in July or August 1995, the Debtor began negotiations with Hibernia for Hibernia to provide floor plan financing for the Debtor's new cars. On September 5, 1995, Hibernia filed a UCC-1 financing statement listing the following property of the Debtor as collateral: All accounts now owned or hereafter acquired; All Chattel paper now owned or hereafter acquired, including, but not limited to the reversionary right of grantor and leased goods; All documents now owned or hereafter acquired, all equipment now owned or hereafter acquired; All inventory now owned or hereafter acquired, including but not limited to consigned inventory; All general intangibles now owned or hereafter acquired; Any and all used vehicles; All products of collateral are also covered. Hibernia began advancing funds to the Debtor under the used car floor plan on or about September 14, 1995. By October 1995, the Debtor had defaulted under the WFA by selling both new and used cars out of trust, i.e., selling vehicles without paying off the floor plan financing. On October 6, 1995, Hibernia sent notice to AHFC of its intention to provide purchase money security financing to the Debtor for its new vehicles. On October 25, 1995, AHFC filed suit against the Debtor in the 14th Judicial District Court, Calcasieu Parish, and obtained a writ of sequestration thereby constructively seizing those movable assets of the Debtor which constituted AHFC's collateral pending the outcome of the lawsuit. In November 1995, Hibernia approved $2 million for the new car floor plan financing, but required that AHFC execute a subordination. Hibernia sent a proposed subordination agreement to AHFC. On December 11, 1995, AHFC executed a subordination agreement ("Subordination Agreement") in which AHFC subordinated its secured position in favor of Hibernia, but only as to the Debtor's existing, unsold new car inventory and the sale proceeds thereof. In return for the Subordination Agreement, Hibernia agreed to pay AHFC the value of the Debtor's unsold new car inventory still on the Debtor's lot, namely, $1,146,597.30. Hibernia further agreed to pay AHFC the sum of $57,900.00, which was the amount the Debtor had drawn under AHFC's used car floor plan in connection with the six used cars which were still on the Debtor's lot at that time. On December 15, 1995, AHFC received two checks from Hibernia totaling $1,204,497.30, thus reducing its claim against the Debtor by that amount. Thereafter, AHFC sent Hibernia the Manufacturer's Statements of Origin ("MSOs") on the existing new car inventory as well as the titles to the six used cars. AHFC kept the MSOs and used car titles for the out-of-trust cars. Upon receipt of the $1.2 million, AHFC faxed a copy of the executed Subordination Agreement and copies of several UCC-3 statements to Hibernia. AHFC, however, never sent either the original Subordination Agreement or the original UCC-3s to Hibernia. Hibernia did not record the faxed copies of the UCC-3s in the public records. On February 28, 1996, the Debtor executed a Partial Dation En Paiement ("Partial Dation") in favor of Hibernia, through which the Debtor purported to transfer ownership of the new car inventory to Hibernia in exchange for a partial reduction of debt. The new cars described in the Partial Dation were not physically removed by Hibernia, but remained on the Debtor's sales lot until after the Petition Date. B. Postpetition Transactions. Although the case was filed under chapter 11, the Debtor's intent from the start was to liquidate. Accordingly, and since time appeared to be of the essence, the court entered a Consent Order on April 15, 1996, setting forth certain conditions for the sale of the Debtor's assets, including the Debtor's interest in the Franchise and the new car inventory. *293 On May 16, 1996, after appropriate notice, the court conducted an auction at which William Navarre ("Navarre") outbid one other bidder and ostensibly acquired the Franchise for $420,000.00. Several other transactions took place following the conversion of the case to chapter 7 on July 15, 1996. As a result of all transactions, the Trustee now holds the sum of $1,441,235.88, which represents proceeds of the following: $420,000.00 Sale of Franchise 246,000.00 Sale of used car inventory 4,200.00 Sale of 4 lifts and compressor 3,310.70 Insurance premium rebate 8,000.00 Sale of office equipment and furniture 759,725.18 Sale of new car inventory On the Petition Date, Hibernia's total claim against the Debtor amounted to $1,821,555.90. Hibernia received $234,909.38 from the Debtor subsequent to the Petition Date. The source of such payments were the sale of new and used cars. Also on the Petition Date, AHFC was due $872,000.00 while Umphrey and Branick were owed $218,333.33. II. FUNDS RECEIVED FROM BILLY NAVARRE A. In General. AHFC, Hibernia, and Umphrey and Branick each argue that their lien attaches to the $420,000.00 ("Navarre Funds") as proceeds of the sale of the Franchise. The Trustee argues, however, that the Navarre Funds are property of the estate acquired after the commencement of the case and which are free and clear of all liens or security interests[3]. The Trustee takes the position that the Navarre Funds are not proceeds from the sale of any parties' collateral. AHFC first claims that the Trustee is barred from raising issues regarding the Navarre Funds based upon the terms of the Consent Order. In the Consent Order, the parties stipulated to certain facts, as follows: (11) Further, IT IS HEREBY ADJUDGED that debtor owns a franchise from American Honda Motor Co., Inc. ("Motor Company") and that the Motor Company franchise is a valuable asset of the estate. Further, IT IS HEREBY ADJUDGED that the Motor Company may terminate the franchise unless it is transferred to another car dealer within a relatively short period of time and thus time is of the essence. (12) Accordingly, IT IS HEREBY ORDERED that the debtor shall, no later than April 15, 1996, send notice of its intent to sell the Honda franchise to the current highest bidder, giving notice to all creditors, the U.S. Trustee, and William J. Navarre with the minimum selling price of the franchise to be $400,000. The sale will be free and clear of all security interests, liens, encumbrances, privileges, and mortgages for a minimum of $400,000 cash or cash equivalents and to the highest qualified bidder, with all of the sale proceeds being immediately placed into a trust account opened at a depository for bankruptcy accounts and exclusively for the purposes of depositing the proceeds from the sale of the Motor Company franchise and associated good will. If a higher bid is received, a hearing will be held on May 16, 1996 in the United States Bankruptcy Court in Lake Charles, Louisiana at 11:00 a.m. IT IS FURTHER ORDERED that the sale proceeds placed into the Motor Company trust account be subject to all valid, prepetition security interests in the Motor Company franchise and associated good will to the same extent and rank as existed upon the date and time debtor filed for Chapter 11 relief. The Trustee raises several issues regarding the May 16 auction sale, including (a) whether the Franchise had been terminated prior to the Petition Date, thus leaving the Debtor with nothing to sell, (b) if the Debtor retained the Franchise, whether any transfer thereof could occur without the consent of the franchiser, AHMC, and (c) if the Debtor indeed held the Franchise after the Petition Date, did any party in interest hold a security interest in the Franchise and/or proceeds of the Franchise? These inquiries break down into two general categories. First, did the Debtor retain an interest in the Franchise on and after the Petition Date, and second, does any party in interest hold a *294 security interest which covers the Navarre Funds? Whether or not the court may venture into such inquiries, however, depends upon the applicability of the principles of res judicata to the instant case. B. Res Judicata. 1. In General. Res judicata operates to "bar a subsequent action when a prior action involving the same parties and the same cause of action reached final judgment on the merits in a court of competent jurisdiction." Agrilectric Power Partners, Ltd. v. General Electric Co., 20 F.3d 663, 664-65 (5th Cir.1994). In this circuit, res judicata applies if the following elements are present: (1) identity of the parties, (2) the first order or judgment was rendered by a court of competent jurisdiction, (3) the prior order or judgment is final, and (4) the same issues are raised in both proceedings. See, e.g., Matter of Super Van, Inc., 92 F.3d 366 (5th Cir. 1996). 2. Court of Competent Jurisdiction/Final Order. The Trustee does not suggest that either this court was without jurisdiction in entering the Consent Order or that the Consent Order was not final. These requirements are clearly satisfied. 3. Identity of the Parties. The Trustee contends that the first requisite element, identity of the parties, is absent, as the Trustee not only was not a party to the Consent Order, he had not even been appointed at that time. This fact, however, is not sufficient in and of itself to deny application of res judicata. In Eubanks v. F.D.I.C, 977 F.2d 166 (1992), the question arose as to whether res judicata would apply as to both Dr. and Mrs. Eubanks where the prior order arose in a bankruptcy proceeding involving only Dr. Eubanks and not his spouse. The court said: It is well-settled that, under certain circumstances, a judgment may bar a subsequent action by a person who was not a party to the original litigation. See Meza, 908 F.2d at 1266; Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.), cert. denied, 423 U.S. 908, 96 S. Ct. 210, 46 L. Ed. 2d 137 (1975). For example, where the non-party's interests were adequately represented by a party to the prior action, we have concluded that there is sufficient identity between the parties to apply the principles of res judicata and give preclusive effect to the prior judgment. Meza, 908 F.2d at 1266. A non-party, such as Mrs. Eubanks, is adequately represented where a party in the prior suit is so closely aligned to her interests as to be her virtual representative. Meza, 908 F.2d at 1267 (citing Aerojet-General); see also Delta Air Lines, Inc. v. McCoy Restaurants, Inc., 708 F.2d 582, 587 (11th Cir.1983). This requires more than a showing of parallel interests — it is not enough that the non-party may be interested in the same questions or proving the same facts. Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 864-65 (5th Cir.1985). In the instant case, the inquiry thus becomes whether the interests of the Debtor, as debtor-in-possession, were sufficiently identical to the interests of the Trustee so as to satisfy the foregoing principles. In the bankruptcy context, courts have generally recognized that acts of a debtor in possession generally bind a subsequently-appointed trustee, In re Monument Record Corporation, 71 B.R. 853, 862 (Bkrtcy. M.D.Tenn.1987), although an exception would exist where there is evidence of fraud or prejudice to the estate. In re Philadelphia Athletic Club, Inc., 17 B.R. 345, 347 (Bkrtcy. E.D.Pa.1982). See, also, Seidle v. GATX Leasing Corp., 45 B.R. 327 (S.D.Fla.1984), where, under principles of equitable estoppel, the court held a subsequent trustee bound by the debtor-in-possession's stipulation. The duties and responsibilities of a chapter 11 trustee are set forth in section 1106, and, by reference, section 704. With only minor differences, section 1107(a) clothes a debtor in possession with the same duties and responsibilities as a trustee. In commenting upon the similarities of the two with respect to their fiduciary responsibilities, the Fifth Circuit, citing the Supreme Court's decision in Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 355, 105 S. Ct. 1986, 1994, 85 L. Ed. 2d 372 (1985), said: *295 The appellees' argument seems premised on the bizarre notion that a debtor-in-possession is under no obligation to act in the best interests of the creditors. The appellees' position "ignores the fact that bankruptcy causes fundamental changes in the nature of corporate relationships." See Weintraub, 471 U.S. at 355, 105 S. Ct. at 1994. As the Court noted in Weintraub: Respondents also ignore that if a debtor remains in possession — that is, if a trustee is not appointed — the debtor's directors bear essentially the same fiduciary obligation to creditors and shareholders as would the trustee for a debtor out of possession. Wolf v. Weinstein, 372 U.S. 633, 649-652 [83 S. Ct. 969, 979-981, 10 L. Ed. 2d 33] (1963). Indeed, the willingness of courts to leave debtors-in-possession "is premised upon an assurance that the officers and managing employees can be depended upon to carry out the fiduciary responsibilities of a trustee." Id., at 651 [83 S.Ct. at 980]. 471 U.S. at 355, 105 S. Ct. at 1994; see also In re Hughes, 704 F.2d at 822 (debtor-in-possession holds its powers in trust for the benefit of creditors; creditors have the right to require the debtor-in-possession to exercise those powers for their benefit); Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 462 n. 8 (6th Cir.1982) ("A trustee in bankruptcy or a debtor-in-possession, as a fiduciary, represents both the secured and unsecured creditors of the debtor."). Louisiana World Exposition v. Federal Insurance Company, 858 F.2d 233, 249-50 (5th Cir.1988). In the instant case, the Consent Order was entered by the court, not necessarily in an effort at compromising certain litigation, but as the culmination of several motions which were pending at the time. Between the Petition Date and the date the Consent Order was entered, numerous motions were filed, including AHFC's motion to convert to chapter 7 or dismiss, AHFC's motion to sequester or prohibit use of cash collateral, and Navarre's motion to convert to chapter 7. These motions were noticed for hearing on April 11, 1996. The matters were taken up in the form of a status conference. All parties in interest had negotiated the settlement of various issues, all of which were incorporated into the Consent Order which was entered of record on April 16, 1996. Based upon the facts of the case, the court finds that the Debtor did have such an identity of interest with the Trustee so as to hold that this essential element for application of res judicata is present. 4. Identity of Issues. In suggesting that the doctrine of res judicata precludes consideration of certain matters, the Trustee actually raises two separate issues. First, what was sold at the May 16 auction, and second, does any party hold a security interest in such property, if any, and the proceeds thereof. For the following reasons, the Court determines that res judicata applies to the former, but not the latter. (a) What Was Sold? Paragraphs 11 and 12 of the Consent Order contain the following language which clearly indicates the Debtor's present ownership of the Franchise: • ". . . debtor owns a franchise from American Honda Motor Co. Inc. (`Motor Company') . . . " • ". . . the Motor Company franchise is a valuable asset of the estate. . . . " • ". . . the Motor Company may terminate the franchise unless it is transferred to another car dealer within a relatively short period of time and thus time is of the essence." • ". . . the debtor shall . . . send notice of its intent to sell the Honda franchise . . . " The issue of what was to be sold at the May 16 auction was clearly determined in the Consent Order. There is no question that there is an identity of issues with regard to what property was sold at the May 16 auction. Thus, the issues raised by the Trustee with regard to whether the Debtor indeed held the Franchise at the time it was purportedly sold or whether in fact it could be sold will not be addressed by the court, as res judicata precludes inquiry into such matters at this time. *296 (b) Liens? On the other hand, the issue of liens against the Franchise and the proceeds thereof was clearly not addressed in the Consent Order. In fact, the issue of the validity of liens was expressly reserved for later proceedings, as paragraph 12 of the Consent Order provides that the proceeds from the sale of the Franchise would be placed in a trust account and would— be subject to all valid, prepetition security interests in the Motor Company franchise and associated good will to the same extent and rank as existed upon the date and time debtor filed for Chapter 11 relief. And, for good measure, paragraph 22 of the Consent Order provides that— this Consent Order does not, in and of itself, create any additional security interests or otherwise affect the ranking of the security of any creditor. There is obviously a lack of identity of issues between the Consent Order and the question of the extent, validity, and rank of security interests in the Navarre Funds. The court must examine issues raised by the Trustee in connection with such alleged interests, as res judicata simply does not apply to this issue. The issues raised by the Trustee focus almost exclusively on whether the $420,000.00 was derived from the sale of the Franchise. As the court has already held that res judicata principles apply to the issue of what was sold at the May 16 auction, those issues have been determined and are not to be revisited. Thus, the only issue is whether AHFC, Hibernia, or Umphrey and Branick hold a lien on the Navarre Funds, and who among those holding such liens is entitled to priority. As the Consent Order provided that the funds derived from the auction would be subject to all valid, prepetition security interests in the franchise, the issue is whether AHFC, Hibernia or Umphrey and Branick held valid, pre-petition security interests in the Franchise and the rank of any such security interests. Each such party held a lien on general intangibles, which is defined as "any intangible personal property (including things in action) other than goods, accounts, chattel paper, documents, instruments, investment property, and money." LSA-R.S. 10:9-106[4]. Although there are no Louisiana cases on point, case law from other jurisdictions uniformly holds that franchise agreements and licenses fall within the definition of "general intangibles." See, e.g., In re Scheidmantel Olds-Cadillac, Inc., 144 B.R. 296 (Bkrtcy.W.D.Pa.1992); In re Topsy's Shoppes, Inc., 131 B.R. 886, 888 (D.Kan. 1991); In re Hengalo Enterprises, Inc., 51 B.R. 54 (Bankr.S.D.Fla.1985). Therefore, AHFC, Hibernia and Umphrey and Branick each hold liens on the Navarre Funds. In accordance with § 9-312(5)(a), security interests are to be ranked according to date of recordation, unless a special priority rule applies. As no such special priority rule applies in the instant case, and taking into account the Umphrey and Branick subordination, the court therefore concludes that AHFC holds a first ranking security interest in the Navarre Funds, followed by Hibernia and Umphrey and Branick in that order. III. TRUSTEE'S AVOIDABLE PREFERENCE CLAIM AGAINST AHFC The Trustee claims that certain payments to AHFC constitute preferential transfers which the Trustee may avoid pursuant to the provisions of section 547(b). That section provides: (b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— *297 (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. The transfers which the Trustee asserts are avoidable under section 547(b) fall into two categories, namely, the $1.2 million paid by Hibernia to AHFC in December 1995, and certain other payments from the Debtor to AHFC between December 12, 1995 and February 6, 1996. A. The $1.2 Million. AHFC received $1.2 million from Hibernia in on or about December 15, 1995, a point in time clearly within 90 days of the Petition Date. AHFC, however, argues that (1) the money was not property of the estate under the so-called "earmarking" doctrine; (2) the debtor was not insolvent at the time of the transfer; (3) AHFC did not receive more than they would receive in a chapter 7 liquidation; and (4) in the event an avoidable preference did occur (which AHFC denies), the defenses available to defendants pursuant to sections 547(c)(1), 547(c)(5), and/or 547(c)(6) operate to defeat the action. No action lies under section 547(b) unless the Debtor had an interest in the property which was the subject of the contested transfer. The earmarking doctrine focuses on this issue: The crux of the preference statute as it relates to the "earmarking doctrine" is that only a "transfer of an interest of the debtor in property" may be avoided. In re EUA Power Corporation, 147 B.R. 634, 639 (Bkrtcy.D.N.H.1992). The EUA court went on to say: The "earmarking doctrine" is a judicial interpretation of whether certain transactions constitute a "transfer of an interest of the debtor in property." The "earmarking doctrine" basically provides that if property transferred in payment of a debt was never truly within the control of the debtor or subject to the debtor's direction, then a transfer of such property would not be considered a preference. The doctrine derives from the concept that co-obligors on a loan can set aside, or "earmark", payments which, although they pass through the debtor's estate, are designated for payment of a pre-petition creditor that could proceed against the non-debtor co-obligor. The money or property was never subject to an equitable interest of the debtor and, accordingly, such assets are not considered truly property of the estate within the meaning of section 541 of the Bankruptcy Code. Therefore they are not subject to a preferential attack under section 547(b) of the Bankruptcy Code. 147 B.R. at 640. The court in EUA favorably cited the Fifth Circuit's earlier decision of Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351 (5th Cir.1986). The Coral Petroleum court observed: For a preference to be voided under section 547, "it is essential that the debtor have an interest in the property transferred so that the estate is thereby diminished." Genova v. Rivera Funeral Home (In re Castillo), 39 B.R. 45, 46 (Bankr. D.Colo.1984); see also Young v. Scandore Paper Box Corp. (In re Lucasa International, Ltd.), 13 B.R. 596 (Bankr.S.D.N.Y. 1981); In re Moskowitz, 13 B.R. 357 (Bankr.S.D.N.Y.1981). If all that occurs in a "transfer" is the substitution of one creditor for another, no preference is created because the debtor has not transferred property of his estate; he still owes the same sum to a creditor, only the identity of the creditor has changed. This type of transaction is referred to as "earmarking," and is, according to a noted bankruptcy *298 treatise, applicable in the following circumstances: "In cases where a third person makes a loan to a debtor specifically to enable him to satisfy the claim of a designated creditor, the proceeds never become part of the debtor's assets, and therefore no preference is created. The rule is the same regardless of whether the proceeds of the loan are transferred directly by the lender to the creditor or are paid to the debtor with the understanding that they will be paid to the creditor in satisfaction of his claim, so long as such proceeds are clearly `earmarked.'" 4 Collier on Bankruptcy ¶ 547.25 at 547-(101-102) (15th ed.1986). The earmarking doctrine is widely accepted in the bankruptcy courts as a valid defense against a preference claim, primarily because the assets from the third party were never in the control of the debtor and therefore payment of these assets to a creditor in no way diminishes the debtor's estate. (Citations omitted.) 797 F.2d at 1355-1356. The key issue in Coral Petroleum was whether the debtor had any control over the funds. The Fifth Circuit determined that although the funds were technically transferred to the debtor and then to the original creditor, there was actually only a bookkeeping entry and the debtor never actually had control over the funds. In the instant case, the evidence indicates that the Debtor likewise never had any control over the $1.2 million. These funds were transmitted directly from Hibernia to AHFC and never came under the Debtor's control. Additionally, Paul Van Geffen, a representative of Hibernia testified that the Debtor could not have received the funds under any circumstances. He testified that if the negotiations with AHFC had fallen through, the Debtor would not have received the $1.2 million; Hibernia simply would not have made the loan. Mr. Van Geffen further testified that Hibernia would only have sent the funds to AHFC, and not to the Debtor. The Trustee asserts that the earmarking doctrine should not apply in the present case because this is not a situation where one creditor was merely substituted for another. He contends that because Hibernia received a security interest and AHFC did not release any portion of its security interest, the doctrine of earmarking should not be applicable. The court does not find this argument persuasive. Once the $1.2 million was paid to AHFC, the Debtor's obligation to AHFC was reduced by this amount, thus reducing AHFC's secured claim. At that same point the secured claim of Hibernia increased by $1.2 million. While each creditor may have had a security interest over the entirety of the Debtor's property, the amount either could realize based upon such security interest was of course limited to the amount of the debt owed by the Debtor. As long as the debt owed to AHFC was decreased, it is irrelevant that AHFC did not release any portion of its security interest. The Debtor's estate was not diminished by the transfer. The court therefore finds that the transfer of the $1.2 million from Hibernia to AHFC was not a "transfer of an interest of the debtor in property" within the meaning of section 547(b), and, accordingly the Trustee's attempt to avoid such transfer must fail. B. ADDITIONAL PAYMENTS TO AHFC. In the 90 days preceding the Petition Date, AHFC also received 10 payments from the Debtor, as follows: Date Amount of Payment December 12, 1995 $22,427.00 December 13, 1995 $18,969.49 December 21, 1995 $13,608.40 January 2, 1996 $20,085.00 January 8, 1996 $17,690.80 January 10, 1996 $13,084.00 January 12, 1996 $21,856.16 January 16, 1996 $20,085.00 February 1, 1996 $ 1,597.26 February 6, 1996 $ 2,669.40 The payment made on December 21, 1995, in the amount of $13,608.40 was a payment pursuant to the 1992 Settlement Agreement. The remaining payments were apparently from the sale of vehicles and/or parts. Although AHFC originally claimed that these remaining payments were derived from the sale of AHFC's collateral, i.e., vehicles sold *299 prior to the execution of the Subordination Agreement, AHFC now concedes that the payment of $21,856.16 on January 12, 1996, was on account of the sale of Hibernia's collateral. As to the remainder, however, AHFC continues to argue that such payments were derived from the sale of AHFC's collateral. The Trustee claims, however, that the funds were derived from the sale of Hibernia's rather than AHFC's collateral. 1. $13,608.40 Payment (December 21, 1995). AHFC does not seriously dispute that all elements of section 547(b) have been satisfied with respect to this payment. The court finds that the Trustee has indeed satisfied his burden with respect to such elements. However, as such payment was the Debtor's normal monthly payment to AHFC under the 1992 Settlement Agreement, AHFC argues that these payments were made in the ordinary course of the Debtor's business and are therefore subject to the affirmative defense found at section 547(c)(2). That section provides: (c) The trustee may not avoid under this section a transfer— * * * * * * (2) to the extent that such transfer was— (A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee; and (B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (C) made according to ordinary business terms;. . . . In the case of In re Bourgeois, 58 B.R. 657, 659 (Bkrtcy.W.D.La.1986), Judge Bernard observed: The legislative history of section 547(c)(2) states that "[t]he purpose of this exception is to leave undisturbed normal financial relations, because it does not detract from the general policy of the preference section to discourage unusual action by either the debtor or his creditors during the debtor's slide into bankruptcy." House Report 95-595, 95th Congress, 1st Session (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6329. Thus, payments made by a debtor to employees, suppliers, for utilities and rent, and other similar operating expenses or trade credit transactions, were intended by Congress to be exempt from recovery as preferences. [Citations omitted.] Courts have on several occasions held that transfers made in connection with settlement of litigation do not fall within the "ordinary course of business" defense of section 547(c)(2). See, e.g., Hickey v. Nightingale Roofing, Inc., 83 B.R. 180 (D.Mass.1988), and In re Industrial & Municipal Engineering, Inc., 127 B.R. 848 (Bkrtcy.C.D.Ill.1990). In fact, the court in the Hickey case adopted a per se rule regarding payments made in connection with settlement of litigation, declaring: Thus, it appears appropriate to enforce a per se rule that litigation settlements are not to be treated under any circumstances as transfers either "in the ordinary course of business" or "according to ordinary business terms." Based upon the foregoing discussion, this court concludes that the payment by the Debtor to AHFC on December 21, 1995, in the amount of $13,608.40, is not protected by the provisions of section 547(c)(2). 2. $21,856.16 Payment (January 12, 1996). In defense of the preference action with respect to this transfer, as well as the remaining 8 payments, discussed in paragraph 3, infra, AHFC contends that the Trustee has not met the requisite burden of proof with respect to the evidentiary requirements of section 547(b)(5). The court agrees with AHFC's position that section 547(b)(5) will protect the transferee where the transferee is fully secured: Generally, payments to a fully secured creditor will not be considered preferential because the creditor would not receive more than in a chapter 7 liquidation. *300 5 Collier on Bankruptcy, ¶ 547.03[7], p. 547-41 (15th Ed. Rev.). Based upon the evidence adduced, however, the court concludes that AHFC was not a fully secured creditor with respect to the vehicle which the Debtor sold in order to generate the $21,856.16 paid to AHFC on January 12, 1996. In attempting to identify the source of the funds represented by the 10 contested transfers, AHFC was able to identify the funds received by the vehicle identification number ("VIN") on each such vehicle sold. This investigation revealed the date each such vehicle was actually sold. Robert Hurt, AHFC's national credit manager, acknowledged in his testimony that, based upon such investigation, the vehicle which generated these proceeds ($21,856.16) was sold subsequent to the effective date of the Subordination Agreement. At that time, however, Hibernia's security interest with respect to such sold vehicle outranked that of AHFC. Consequently, AHFC did not enjoy a senior secured position with respect to such vehicle, nor to the proceeds resulting from the sale thereof, and, accordingly, was not fully secured with respect to that transfer. As with the $13,608.40 payment made on December 21, 1995, AHFC does not seriously dispute that the remaining elements of section 547(b) have been satisfied with respect to this transfer. The court finds that the Trustee has indeed satisfied his burden with respect to such elements. Further, the court finds that no defense exists under section 547(c) which would insulate AHFC from the preference action. 3. Remaining 8 Payments. As pointed out in paragraph 2, supra, if the funds received by AHFC were derived from the sale of collateral on which AHFC held a first ranking security interest, the transfer could not be avoided as preferential because the provisions of section 547(b)(5) would not have been satisfied, i.e., AHFC had not received more than it would have received in a chapter 7 liquidation. However, if the funds received by AHFC were derived from the sale of collateral on which another entity, i.e., Hibernia, held a first ranking security interest, the requirement of section 547(b)(5) would be deemed satisfied. Thus, the inquiry is whether AHFC held a senior perfected security interest in the vehicles which were sold by the Debtor in order to generate the funds paid to AHFC. Mr. Hurt testified that AHFC's review of the VINs of the cars sold indicated that, with the exception of the $13,608.40 payment made on December 21, 1995, the sales proceeds represented vehicles sold prior to the Subordination Agreement. At such times, AHFC did hold a senior security interest in such vehicles. The Trustee presented no evidence to contradict this testimony. Accordingly, the remaining 8 payments received by AHFC from the sale of vehicles were not preferential transfers in that the requirements of section 547(b)(5) have not been satisfied. IV. EQUITABLE SUBORDINATION The Trustee takes the position that the priority of AHFC's entire claim should placed below the claims of other creditors pursuant to principles of equitable subordination. This claim, which arises under section 510(c), is based upon the following: (1) AHFC defrauded Hibernia in receiving the $1.2 million and not forwarding the original Subordination Agreement; (2) AHFC judicially seized the used car inventory of the Debtor in an attempt to put the Debtor out of business to the detriment of the other creditors; and (3) AHFC received funds which it knew or should have know was proceeds from the sale of Hibernia's collateral. Section 510(c) provides: . . . after notice and a hearing the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. *301 The seminal Fifth Circuit case involving section 510(c), In re United States Abatement Corporation, 39 F.3d 556 (5th Cir.1994), set forth the requirements for equitable subordination to apply: This court has established a three-prong test to identify those situations in which equitable subordination is permitted: (1) the claimant must have engaged in some type of inequitable conduct; (2) the conduct must have resulted in injury to the creditors or conferred an unfair advantage on the claimant; and (3) the invocation of equitable subordination must not be inconsistent with the provisions of the Bankruptcy Code. In Re Fabricators, Inc., 926 F.2d at 1464-65; Smith v. Associates Commercial Corp. (In re Clark Pipe & Supply Co.), 893 F.2d 693, 699 (5th Cir.1990); Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692, 700 (5th Cir.1977). 39 F.3d at 561. The court then observed those limited areas where equitable subordination has generally been applied: While our three-pronged test appears to be quite broad, we have largely confined equitable subordination to three general paradigms: (1) when a fiduciary of the debtor misuses his position to the disadvantage of other creditors; (2) when a third party controls the debtor to the disadvantage of other creditors; and (3) when a third party actually defrauds other creditors. Holt v. FDIC (In re CTS Truss, Inc.), 868 F.2d 146, 148-49 (5th Cir.1989) (citing cases). Ibid. With these principles in mind, the court must consider whether AHFC's conduct of which the Trustee complains fits within any of the "general paradigms" described by the court. The Trustee first contends that AHFC defrauded Hibernia when, after receiving $1.2 million from Hibernia, it failed to return the original Subordination Agreement and UCC-3's. While the evidence supports this factual finding, the court does not believe that AHFC defrauded Hibernia. Hibernia sought a Subordination Agreement from AHFC in exchange for the payment of $1.2 million. Upon the payment, Hibernia got exactly what they bargained for. Hibernia received the MSOs and titles with regard to the vehicles which were subordinated. AHFC does not dispute that it subordinated its position to Hibernia. Hibernia was not harmed by the failure of AHFC to send the original documents or by the lack of filing of the UCC-3's. The only consequence of the recordation of the UCC-3's would have been with respect to the Subordination Agreement's effect as to third parties. In the present case, the dispute as to ranking is between AHFC and Hibernia, not a third party. Therefore, the court finds that Hibernia was not harmed by AHFC's act. Hibernia bargained for the subordination by AHFC and received such subordination. For that reason, the court finds that AHFC did not defraud Hibernia. The Trustee next suggests that AHFC's judicial seizure and receipt of funds from the sale of its collateral constitutes conduct sufficient to trigger equitable subordination. The court disagrees. The seizure of the Debtor's property was merely an exercise of AHFC's rights as a creditor. This appears to be no more than an attempt on the part of AHFC to collect a just debt based upon rights granted by the Debtor in the security agreement. And the Trustee points to no other evidence to suggest that the seizure was anything more than just that. The court does not believe that a secured creditor is obligated to forestall collection efforts to protect the interest of other creditors. The court also believes that the receipt of funds from the sale of vehicles was but an exercise of AHFC's rights as a creditor. AHFC was entitled to receive payments from the Debtor, and the receipt of such funds is not the type of activity which supports a claim of equitable subordination. While the language of United States Abatement does not suggest that the "general paradigms" outlined therein are exclusive and describe the only situations where equitable subordination may be applied, the Trustee has not presented any compelling *302 reason which suggests an extension of section 510(c) to the acts of AHFC in the instant case. For these reasons, the court finds that the claim of AHFC should not be equitably subordinated pursuant to section 510(c). V. HIBERNIA'S LIEN AS A RESULT OF THE PARTIAL DATION Both AHFC and the Trustee contend that, upon the execution of the Partial Dation, Hibernia acquired ownership of the vehicles and, through confusion[5], thereby lost any security interest it had in such vehicles. Hibernia, on the other hand, argues that the Partial Dation was not completed because they received no consideration for the transaction. The court finds that the Partial Dation was in fact completed. Pursuant to the Partial Dation, in exchange for a reduction of the debt owed by the Debtor, Hibernia received ownership of the vehicles. Thus, the consideration to Hibernia was the acquisition of ownership of the vehicles, which it received. Although Hibernia intended to subsequently execute a repurchase agreement with American Honda Motor Company ("AHMC"), the failure to execute that agreement does not affect the validity of the Partial Dation, i.e, the execution of the repurchase agreement was not a condition precedent to the Partial Dation becoming effective. The court finds that the Partial Dation was completed when executed by the parties thereto, thereby transferring ownership of the vehicles to Hibernia as of February 28, 1996. Consequently, pursuant to Civil Code Articles 1903 and 3319, Hibernia's security interest in the vehicles was extinguished when Hibernia acquired ownership of those vehicles. The Trustee's next argument is that the Partial Dation was never perfected as to third parties and thus may be avoided pursuant to section 544(b). The Trustee then suggests that pursuant to section 551, the transfer should be preserved for the benefit of the estate. The Trustee's claim that the Partial Dation was not perfected as to third parties is based upon the fact that Hibernia never acquired actual physical possession of the new car inventory. Delivery is essential under Louisiana law to perfect a transfer of movable property. CC Art. 518. In turn, CC Art. 2477 provides the methods of making delivery— Delivery of a movable takes place by handing it over to the buyer. If the parties so intend delivery may take place in another manner, such as by the seller's handing over to the buyer the key to the place where the thing is stored, or by negotiating to him a document of title to the thing, or even by the mere consent of the parties if the thing sold cannot be transported at the time of the sale or if the buyer already has the thing at that time. (Emphasis added.) At the time of the Partial Dation, Hibernia already held title (or actually the MSOs which equate to titles in newly manufactured cars) to the Debtor's new vehicles. The vehicles remained on the Debtor's lot following the Partial Dation and continued to be sold by the Debtor with Hibernia's consent. Mr. Van Geffen testified that Hibernia intended to acquire ownership of the vehicles upon the execution of the Partial Dation and that the parties had agreed that the vehicles would remain on the Debtor's lot. The parties further agreed that Russ Williams, an employee of the Debtor, would look after the vehicles on behalf of Hibernia and could continue to sell the vehicles until they could be inspected by AHMC. As stated hereinabove, the transfer of the vehicles from the Debtor to Hibernia occurred upon the execution of the Partial Dation. Such transfer was also perfected as to third parties upon execution of the Partial Dation. While the vehicles were not physically removed from the Debtor's lot, the court believes that pursuant to CC Art. 2477, the parties intended delivery to take place "in another manner", i.e., upon the execution *303 of the Partial Dation. As Hibernia already held indicia of title to the vehicles, i.e., the MSOs, the transfer was fully perfected as to third parties upon execution of the Partial Dation. Once the parties agreed to the transfer, Hibernia held the MSOs no longer as a secured creditor, but as owner. The Partial Dation accomplished two results: (1) the debt to Hibernia was reduced by the amount intended by the parties, i.e., the amounts received from the sale of the vehicles, pursuant to CC Art. 2657; and (2) Hibernia acquired ownership of the vehicles thereby extinguishing its security interest in the new car inventory by confusion pursuant to CC Arts.1903 and 3319. As a result of the foregoing, Hibernia is the owner of the funds resulting from the sale of the collateral. Are these funds, however, subject to any valid liens? The answer to this inquiry is "Yes" as both AHFC and Umphrey and Branick hold security interests in the proceeds. These parties, therefore, are entitled to payment from those proceeds with respect to their secured claims in preference to Hibernia, whose lien was extinguished. VI. PAYMENTS MADE TO HIBERNIA AFTER PARTIAL DATION Following the execution of the Partial Dation, the Debtor continued to send proceeds from the sale of the new car inventory to Hibernia. These payments totaled $365,106.95. Two issues are raised by these payments. First, the Trustee asserts that these payments are avoidable as preferential transfers. Second, AHFC asserts a claim against Hibernia based upon Hibernia's receipt of such funds. A. Preferential Transfer. Again, for the Trustee to succeed in this action under section 547(b), the Debtor must have had an interest in the property which was the subject of the transfer. In this instance, however, the transfers were of proceeds from the sale of vehicles which Hibernia acquired as a result of the Partial Dation. Consequently, as the transfers were not transfers of an interest of the Debtor in property, the threshold requirement of section 547(b) has not been met. B. AHFC's Rights Against Hibernia. The court has held that Hibernia acquired ownership of the vehicles as a result of the Partial Dation. However, the lien of AHFC remained in place. As a result, Hibernia held an ownership interest in the proceeds, but AHFC held a lien on such proceeds. As a general tenet of security devices law, a secured party is entitled to receive proceeds in preference to the owner of the property. Thus, Hibernia received proceeds which rightly should have been paid to AHFC. For that reason, AHFC is entitled to receive from Hibernia, the funds paid by the Debtor which represented proceeds of the sale of new cars following the Partial Dation. VII. LIENS ON USED CARS In May 1991 and again in November 1992, AHFC filed UCC-1 financing statements in order to perfect its security interest in the Debtor's used car inventory. In May 1993 and September 1995, Umphrey and Branick and Hibernia, respectively, filed similar UCC-1 financing statements. Umphrey and Branick, however, subordinated their position to both AHFC and Hibernia. Unless a special priority rule applies, § 9-312(5)(a) requires that competing security interests rank according to the time of filing. Thus, unless Hibernia is entitled to a special priority, AHFC's lien outranks that of Hibernia as to the used car inventory. Hibernia, however, claims such special priority as the holder of a purchase money security interest. Pursuant to § 9-312(3), a purchase money security interest in inventory has priority over competing security interests in the same inventory if three conditions are met. Specifically, the party claiming the purchase money security interest must (1) file proper notice before the inventory is delivered to the debtor, (2) give written notice to all secured parties who have previously filed that he has or expects to acquire a purchase money security interest in inventory of the debtor, and (3) insure that such notice is actually received *304 by the other secured parties before the debtor obtains possession of the inventory. In order to benefit from the provisions of § 9-312(3), a party must first establish that it holds a purchase money security interest, which is defined as (1) a security interest taken or retained by a seller to secure the price of collateral, or (2) a security interest taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or use of the collateral if that value is in fact so used. § 9-107. Mr. Van Geffen, testified that on September 14, 1995, Hibernia began to allow the Debtor to draw on its used car account. He further testified regarding Hibernia's procedure for providing floor plan financing for used cars. First, after acquiring a used car from a customer on a trade-in or otherwise, the Debtor would prepare a used car work-sheet, thus establishing the value of the used car. Second, the Debtor delivered the work-sheet and car title to Hibernia. Third, Hibernia would loan the Debtor 80% of the value of the used car by placing the proceeds into the Debtor's general operating account. The court finds that Hibernia does not hold a purchase money security interest in the used cars. The loan did not allow the Debtor to acquire rights in the used cars. Based upon Mr. Van Geffen's testimony, the Debtor acquired rights in the used vehicles prior to receiving the loan from Hibernia. Additionally, the court notes that while Hibernia did give written notice of its intent to acquire a purchase money security interest in inventory to the other secured creditors, the notice was given in October, 1995, which was after the Debtor began to receive loan proceeds. Thus, Hibernia did not precisely follow the requirements of either 9-107 to hold a purchase money security interest or § 9-312(3) to hold a priority over other security interests. For the foregoing reasons, the residual rule of § 9-312(5)(a) applies and the security interest in the used car inventory must be ranked based upon the date of filing of such interests. Accordingly, the court concludes that AHFC holds a first ranking security interest over the used car proceeds, followed by Hibernia and Umphrey and Branick, respectively. VIII. HIBERNIA'S CLAIMS AGAINST AHFC Hibernia asserts four causes of action against AHFC, namely (1) breach of contract, (2) error, (3) detrimental reliance, and (4) misrepresentation. With respect to the first three causes of action, Hibernia essentially seeks relief against AHFC because AHFC failed to mail the original Subordination Agreement and UCC-3 notices to Hibernia. However, as the court previously discussed, Hibernia got exactly what it bargained for and was not harmed by the failure of AHFC to mail the original documents. Hibernia would have been in the same position vis-a-vis AHFC had the original documents been sent. Prior to the Partial Dation, and based upon the Subordination Agreement, Hibernia held a first ranking lien as to the new car inventory. Hibernia was injured by its own decision to execute the Partial Dation, not by any action or inaction by AHFC. As to the fourth claim against AHFC, Hibernia alleges that AHFC concealed the Debtor's financial situation from Hibernia. Hibernia claims that had it known of the Debtor's true financial condition, Hibernia would not have agreed to provide financing to the Debtor nor pay AHFC $1.2 million. These allegations, however, are not borne out by the evidence. The testimony of Mr. Van Geffen clearly demonstrates that Hibernia was fully aware of the Debtor's financial condition at the time Hibernia decided to make the loan to the Debtor. Mr. Van Geffen testified that he had road the lawsuit filed by AHFC against the Debtor which fully set forth the Debtor's out-of-trust position. Mr. Van Geffen also testified that he had examined the Debtor's bank statements. Additionally, Judy Taylor, the Hibernia employee who analyzed the Debtor's used car loan application, testified that she was not aware of any information from AHFC and did not rely upon any information from AHFC in making her recommendation *305 that the used car loan to the Debtor be approved. The court believes that Hibernia made the decision to loan money to the Debtor based upon its own analysis, and not as a result of any information provided by AHFC. Additionally, the court is unaware of any principal of law which would have imposed a duty upon AHFC to assist Hibernia in making lending decisions. There were no allegations of fraud, collusion, or the like, only a claim of a failure to disclose. This is not actionable. For the foregoing reasons, the court holds that AHFC is not liable to Hibernia under any of Hibernia's counterclaims. IX. CONCLUSION In conclusion, the court makes the following findings: (1) AHFC, Hibernia and Umphrey and Branick, in that order of ranking and priority, hold valid and perfected security interests in the Navarre Funds; (2) AHFC, Hibernia and Umphrey and Branick, in that order of ranking and priority, hold valid and perfected security interests in the used car inventory and the proceeds thereof; (3) Hibernia holds an ownership interest in the new car proceeds; (4) AHFC and Umphrey and Branick, in that order of ranking and priority, hold valid and perfected security interests in the new car inventory and the proceeds thereof; (5) As to all other property of the Debtor, the secured parties hold security interest as set forth in their respective security interest, to be ranked according to date of filing; (6) The transfer of $1.2 million to AHFC by Hibernia may not be avoided as a preference under section 547(b) as the Debtor had no interest in such property; (7) With the exception of the payment of $21,856.16, payments received by AHFC from the Debtor on account of the sale of vehicles between December 12, 1995 and February 6, 1996, may not be avoided as a preference under section 547(b) as the requirements of section 547(b)(5) have not been met; (8) The transfer of $21,856.16 by the Debtor to AHFC on January 12, 1996, is avoidable as a preference in accordance with section 547(b); (9) The transfer of $13,608.40 by the Debtor to AHFC on December 21, 1995, on account of the 1992 Settlement Agreement, is avoidable as a preference in accordance with section 547(b); (10) The payments made by the Debtor to Hibernia following the execution of the Partial Dation are not avoidable as preferences under section 547(b) as such did not constitute transfers of an interest of the Debtor in property; (11) Hibernia is liable to AHFC for payments made by the Debtor to Hibernia following the Partial Dation, in the sum of $365,106.95; (12) AHFC is not liable to Hibernia under Hibernia's counterclaims; and (13) The Trustee's demand to equitably subordinate AHFC's claim to the claims of other creditors is without merit. Within 10 days of the entry of these reasons, counsel for AHFC shall (a) prepare a proposed order in conformity with the foregoing reasons, (b) serve a copy of such proposed order on counsel for the Trustee, Hibernia, and Umphrey and Branick, and (c) forward such proposed order (together with a 3½ inch computer disk formatted for Word-Perfect 6.02 or higher) to the Clerk of the Bankruptcy Court for filing. Counsel for the other parties shall have 5 days within which to advise the court in writing of any objections to the form of the proposed order, after which the court will enter an appropriate order. NOTES [1] Title 11, United States Code. Further references to the Bankruptcy Code herein shall be shown as "section ____." [2] The School Board answered the complaint, stated that it was not a secured creditor and asked to be dismissed from the adversary proceeding. [3] Section 552. [4] Chapter 9 of Title 10 of the Louisiana Revised Statutes is the Louisiana equivalent of Chapter 9 of the Uniform Commercial Code. Further references to LSA-R.S. 10:9 herein shall be shown as "§ 9- ____." [5] See Articles 1903 and 3319, Louisiana Civil Code. References to the Louisiana Civil Code herein shall be shown as "CC Art. ____."

2016-07-06 06:42:25.433033+00

DECISON AND JOURNAL ENTRY. This cause was heard upon the record in the trial court, and the following disposition is made: {¶ 1} Defendant-Appellant Daniel Crouse has appealed from a decision of the Akron Municipal Court that found him guilty of violating Akron City Code Section 70.20. This Court dismisses the appeal for mootness. I {¶ 2} On September 6, 2002, Appellant was driving southbound along Arlington Road when he came to a railroad crossing. As Appellant approached the railroad crossing, the warning gates on the crossing descended and red warning lights began to flash. The vehicle immediately in front of his vehicle, a police cruiser driven by Officer Leonard Stephens, proceeded around the warning gates. Appellant also proceeded around the warning gates. After Appellant bypassed the activated railroad crossing sign, he was stopped by Officer Stephens and ticketed for violating Akron City Code Section 70.20, Obeying Traffic Control Devices. {¶ 3} On September 13, 2002, Appellant appeared for arraignment at the Akron Municipal Court and entered a plea of not guilty. The matter then proceeded to a bench trial and Appellant was found guilty of violating Akron City Code Section 70.20. Appellant was fined one hundred dollars. However, the trial court suspended Appellant's sentence, in part. Appellant was ordered to pay twenty-five dollars and the payment of the remaining seventy-five dollars was suspended. Appellant paid the twenty-five dollar fine on September 25, 2002. {¶ 4} On October 18, 2002, Appellant filed a motion for reconsideration. Before the trial court could rule on said motion, Appellant timely filed the instant appeal, asserting three assignments of error, which we have consolidated to facilitate review. II Assignment of Error Number One "Akron [City] Code [Section] 70.20 is void for vagueness." Assignment of Error Number Two "Ordinance conflicts with general law and is therefore void." Assignment of Error Number Three "A railroad crossing under [Akron City Code] Section 72.31 is not a `traffic device' under Section 70.20 of the said Ordinance." {¶ 5} In Appellant's assignments of error, he has challenged the validity and constitutionality of Akron City Code Section 70.20. However, we decline to address the merits of Appellant's appeal on the ground that said appeal is moot. {¶ 6} "As a general rule, courts will not resolve issues which are moot." Boncek v. Stewart, 9th Dist. No. 21054, 2002-Ohio-5778, at ¶ 10, citing Miner v. Witt (1910), 82 Ohio St. 237, syllabus. The court inState v. Berndt (1987), 29 Ohio St.3d 3, established that an appeal is moot where a defendant has paid the fine or completed the sentence imposed by the trial court. See State v. Tolbert, 9th Dist. No. 21203,2003-Ohio-2160, at ¶ 6 ("An appeal from a misdemeanor conviction becomes moot when a defendant has voluntarily satisfied the judgment imposed upon him." (Emphasis sic.)) The Berndt court held: "`[W]here a defendant, convicted of a criminal offense, has voluntarily paid the fine or completed the sentence for that offense, an appeal is moot when no evidence is offered from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction.' State v. Wilson (1975),41 Ohio St.2d 236, syllabus. The burden of presenting evidence that he has such a `substantial stake in the judgment of conviction' is upon the defendant. [Id. at 237.] Thus, this appeal is moot unless appellee has at some point in this proceeding offered evidence from which an inference can be drawn that appellee will suffer some collateral legal disability or loss of civil rights." Berndt, 29 Ohio St.3d at 4. {¶ 7} Additionally, the court in State v. Chevalier (Sept. 26, 1995), 4th Dist. No. 94CA22, 1995 Ohio App. LEXIS 4389, had to determine whether a defendant's appeal was moot because the fine that the trial court imposed on the defendant was suspended and the defendant paid the court-ordered court costs. Relying on State v. Wilson (1975),41 Ohio St.2d 236, certiorari denied (1976), 423 U.S. 936, 96 S.Ct. 295,46 L.Ed.2d 268, the court explained that an appeal is moot if there is no possibility that any collateral legal consequences will be imposed upon the basis of the challenged conviction. Chevalier, supra at *5. The court held, however, that because the defendant was also put on probation for one year that the imposition of probation was sufficient to overcome mootness. Id. {¶ 8} Here, the trial court only imposed a one hundred dollar fine on Appellant, but "suspend[ed] all over $25.00"; the trial court did not impose probation or any other punishment. Appellant voluntarily paid the twenty-five dollar fine on September 25, 2002. As Appellant has paid the fine imposed by the trial court, and he has failed to offer any evidence which demonstrates some collateral disability or loss of civil rights as a result of his conviction, we find that Appellant's appeal is moot. SeeWilson, 41 Ohio St.2d at 237. Accordingly, the appeal is dismissed. III {¶ 9} Appellant's appeal is moot, and is hereby dismissed. Appeal dismissed. CARR, P.J. and REECE, J. concur. (REECE, J., retired judge of the Ninth District Court of Appeals, sitting by assignment pursuant to Article IV, § 6(C), Constitution.)

2016-07-06 06:42:25.366931+00

JOURNAL ENTRY and OPINION {¶ 1} In these consolidated appeals, defendant-appellant Michael Jarmal Pruitt appeals from his convictions and sentences and from the common pleas court's denial of his motion to withdraw his guilty plea. In Cuyahoga App. No. 86986, he argues that the victim impact statement which the court considered in sentencing him was unreliable and violated his right of confrontation. In a supplemental pro se brief, appellant also urges that he received ineffective assistance of counsel and that the court abused its discretion by accepting his plea. In Cuyahoga App. No. 86707, appellant contends that the court abused its discretion by denying his motion to withdraw his guilty plea. We find no error in the proceedings below and affirm the court's rulings. However, we must vacate the sentence imposed for the charge of having a weapon while under disability and remand for resentencing on that offense, pursuant to State v. Foster,109 Ohio St. 3d 1, 2006-Ohio-856. Procedural History {¶ 2} Appellant was charged in a four-count indictment filed May 19, 2004, with attempted murder including three and five year firearms specifications and a notice of prior conviction; two counts of felonious assault with firearms specifications and a notice of prior conviction; and having a weapon while under disability. On October 13, 2004, he entered a guilty plea to attempted murder with a three year firearms specification and notice of prior conviction, and having a weapon while under disability. The court subsequently sentenced appellant to three years' imprisonment on the firearms specification, to be served prior and consecutive to a term of eight years' imprisonment on the attempted murder charge, and a concurrent sentence of five years' imprisonment on the weapons charge. {¶ 3} On April 13, 2005, appellant filed his motion to withdraw his guilty plea. While this motion was pending, appellant sought and obtained leave to file a delayed appeal from his conviction (App. No. 86986). The trial court denied the motion to withdraw the guilty plea, and appellant appealed from that ruling as well (App. No. 86707). Law and Analysis Appeal No. 86707 (Motion to Withdraw Guilty Plea) {¶ 4} We address Appeal No. 86707 first, because a ruling in appellant's favor in that matter will moot the issues raised in Appeal No. 86986. In Appeal No. 86707, appellant argues that the court erred by denying his motion to withdraw his guilty plea without holding an evidentiary hearing. He contends that he presented the court with evidentiary materials sufficient to demonstrate that he received ineffective assistance of counsel at the time he entered his plea, and that the court was therefore obligated to hold an evidentiary hearing on his motion. {¶ 5} The trial court can set aside a judgment of conviction after it imposes sentence, and may allow the defendant to withdraw his or her plea, only "to correct a manifest injustice." Crim.R. 32.1. "A post-sentence motion to vacate a guilty plea is addressed to the sound discretion of the trial court, [State v.Peterseim (1980), 68 Ohio St.2d 211,]at paragraph two of the syllabus, and an appellate court's review of a trial court's denial of a post-sentence motion to withdraw a guilty plea is limited to a determination of whether the trial court abused its discretion." State v. Blatnik (1984), 17 Ohio App. 3d 201, 202. {¶ 6} To prevail on his claim that he should have been permitted to withdraw his plea because he received ineffective assistance of counsel, appellant had to meet the test for ineffective assistance of counsel established in Strickland v.Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. See State v. Xie, 62 Ohio St. 3d 521, 524. He had to show, first, that counsel's performance was deficient, and second, that there was a reasonable probability that, but for counsel's error, he would not have pleaded guilty. Id., citing Strickland andHill v. Lockhart (1985), 474 U.S. 52, 59. {¶ 7} In this case, appellant claims his attorney told him he would be sentenced to only three years' imprisonment. However, the transcript of the plea hearing makes clear that the court disabused appellant of any misunderstandings he may have had about the sentence he could receive before appellant entered his plea. At the plea hearing, appellant said he understood that the court "[had] to sentence [him] to the penitentiary for at least six years" on the attempted murder charge with the firearms specification, and "could sentence [him] to the penitentiary on that count for as long as thirteen years." He also stated that he understood the court could sentence him "to the penitentiary for a period of one to five years" on the charge of having a weapon while under disability. The court asked appellant if he had any questions and he said no. Appellant denied that any promises had been made to him. On this record, it is apparent that appellant pleaded guilty after having been correctly informed of the sentence he could receive. Counsel's alleged error did not affect appellant's decision. {¶ 8} Appellant also argues that his attorney did not discuss the facts of the case with him or the elements of the charges against him or his potential defenses. Again, however, at the plea hearing, appellant advised the court that he told his attorney everything he was aware of that was important to the case, that the attorney had done everything appellant had asked him to do, and that the attorney had done a satisfactory job. There is no evidence that, had further discussions occurred, appellant would not have entered his guilty plea. {¶ 9} The common pleas court did not abuse its discretion by finding that appellant failed to demonstrate that any manifest injustice would occur if he were not allowed to withdraw his guilty plea. Appellant failed to show that, but for counsel's alleged errors, he would not have entered his guilty plea. Therefore, we overrule the sole assignment of error in Appeal No. 86707. Appeal No. 86986 (Direct Appeal) {¶ 10} In Appeal No. 86986, appellant also contends that he received ineffective assistance of counsel, on somewhat different grounds. Again, we must apply the Strickland and Hill test to assess this contention. Appellant argues, first, that his attorney should have objected when the court commented at sentencing that it did not believe appellant intended to kill the victim and would sentence him as if he had committed the worst form of the offense of felonious assault. It is not clear to what counsel would have objected. His client was being sentenced as if the offense were of a lesser degree than the offense to which he pleaded guilty. As a matter of sound strategy, counsel properly remained silent after this statement. Counsel's performance was not deficient in this respect. {¶ 11} Appellant also argues that his attorney advised him to enter a guilty plea without investigating and explaining possible defenses. These arguments concern the advice counsel gave to appellant, so they are necessarily based on evidence outside the record of appellant's plea and sentencing. In reviewing this matter on direct appeal, however, we are limited to the record before the trial court at that time. Appellant cannot demonstrate on the record that counsel provided ineffective assistance in counseling appellant to enter into the plea agreement. Therefore, we overrule appellant's first pro se assignment of error. {¶ 12} Appellant also argues that the court abused its discretion by accepting his guilty plea although the facts did not support the charge of attempted murder. A guilty plea is an admission of the facts set forth in the indictment; Crim.R. 11 "does not require the trial court to establish the factual basis for the offense before accepting a plea." State v. Greathouse,158 Ohio App. 3d 135, 2004-Ohio-3402, ¶ 7, citing State v. Post (1987), 32 Ohio St. 3d 380, 386-87. Therefore, we overrule appellant's second pro se assignment of error. {¶ 13} Finally, appellant asserts that R.C. 2929.14(A) and2947.051 are unconstitutional because they require the court to consider victim impact statements in sentencing.1 R.C.2929.14(A) provides: {¶ 14} "(A) Except as provided in division (C), (D)(1), (D)(2), (D)(3), (D)(4), (D)(5), (D)(6), or (G) of this section and except in relation to an offense for which a sentence of death or life imprisonment is to be imposed, if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender pursuant to this chapter, the court shall impose a definite prison term that shall be one of the following: {¶ 15} "(1) For a felony of the first degree, the prison term shall be three, four, five, six, seven, eight, nine, or ten years. {¶ 16} "(2) For a felony of the second degree, the prison term shall be two, three, four, five, six, seven, or eight years. {¶ 17} "(3) For a felony of the third degree, the prison term shall be one, two, three, four, or five years. {¶ 18} "(4) For a felony of the fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months. {¶ 19} "(5) For a felony of the fifth degree, the prison term shall be six, seven, eight, nine, ten, eleven, or twelve months. {¶ 20} This statute does not require the court to consider the victim impact statement in sentencing the offender.2 Therefore, we reject appellant's constitutional challenge to R.C.2929.14(A). {¶ 21} R.C. 2947.051(A) provides: {¶ 22} "(A) In all criminal cases in which a person is convicted of or pleads guilty to a felony, if the offender, in committing the offense, caused, attempted to cause, threatened to cause, or created a risk of physical harm to the victim of the offense, the court, prior to sentencing the offender, shall order the preparation of a victim impact statement by the department of probation of the county in which the victim of the offense resides, by the court's own regular probation officer, or by a victim assistance program that is operated by the state, any county or municipal corporation, or any other governmental entity. The court, in accordance with sections 2929.13 and2929.19 of the Revised Code, shall consider the victim impact statement in determining the sentence to be imposed upon the offender." {¶ 23} Appellant urges that the United States Supreme Court's decision in Blakely v. Washington (2004), 542 U.S. 296, renders it unconstitutional for the court to consider a victim impact statement "as a means of deciding that a defendant committed `the worst form of the offense.'"3 If not for the Ohio Supreme Court's recent pronouncements in State v. Foster,109 Ohio St. 3d 1, 2006-Ohio-856, and State v. Mathis, 109 Ohio St. 3d 54,2006-Ohio-855, this argument might have required us to negotiate the thin logical tightrope connecting R.C. 2947.051(A)'s requirement that the court consider the victim impact statement in sentencing with the statutory findings formerly required by R.C. 2929.14(C) to impose the maximum term of imprisonment on an offender. Fortunately for us, however, the Ohio Supreme Court inFoster found unconstitutional the statutes that required judicial factfinding to impose a sentence greater than the "statutory maximum" (as that term was defined in Apprendi v. NewJersey (2000), 530 U.S. 466). R.C. 2929.14(C) was among the provisions the Foster court found to be unconstitutional and severed from the remainder of the sentencing statutes. Therefore, "judicial factfinding is not required before a prison term may be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant," including the maximum term. Foster, at ¶ 99. The constitutionality of the evidence the court considered in making unconstitutional findings is irrelevant. {¶ 24} The eight-year sentence imposed by the court for attempted murder was not the maximum term available for that offense. However, the court did impose the longest term authorized by statute for the charge of having a weapon while under disability, five years' imprisonment. The court made the findings and stated the reasons why it did so, as was required by R.C. 2929.14(C) and R.C. 2929.19(B)(2)(c) at that time. Although the court ordered that this sentence be served concurrent to the sentence for attempted murder, and therefore it did not affect the length of the term of imprisonment appellant was actually required to serve, nonetheless, the Foster decision suggests that this sentence is void and must be vacated. Foster, at ¶ 103. Accordingly, we affirm appellant's convictions and the sentence imposed on the attempted murder charge. However, we vacate the sentence imposed on the charge of having a weapon under disability, and remand for resentencing on that charge alone. See State v. Saxon, 109 Ohio St. 3d 176, 2006-Ohio-245. Affirmed in part, vacated in part and remanded for resentencing consistent with this opinion. This cause is affirmed in part, vacated in part and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to 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. Karpinski, P.J. and Calabrese, Jr., J. Concur. 1 Appellant filed a pro se "errata" sheet attempting to "correct" the brief filed by his counsel to indicate a challenge to the constitutionality of R.C. 2929.14(B)and (C), rather than R.C. 2929.14(A). Appellant did not obtain leave to file this amendment to his attorney's argument. Therefore, we decline to consider it. 2 Appellant quotes a purported version of R.C. 2929.14(A) which states that, "[i]n determining whether to impose a fine for a felony and the amount and method of payment of a fine, the court shall consider * * * the victim impact statement prepared pursuant to R.C. 2947.051 * * *." We could not locate this provision in the Revised Code, but if it exists, appellant cannot have been harmed by its alleged unconstitutionality because he was not ordered to pay a fine. 3 This is one of the two findings formerly required by R.C.2929.14(C) to impose the longest authorized prison term on an offender.

2016-07-06 06:42:25.391578+00

OPINION {¶ 1} Appellant, Richard Whitmore, appeals from the trial court's refusal to permit him to withdraw his guilty pleas to breaking and entering with a firearm specification, menacing by stalking and robbery, after the trial court imposed an eleven-year sentence upon him. *Page 2 {¶ 2} Whitmore was originally charged October 23, 2000, with having a weapon while under disability, breaking and entering with a firearm specification, aggravated robbery and robbery. He moved to suppress certain evidence on December 20, 2000, which was overruled by the trial court on March 26, 2001. He then entered his plea to the reduced charges on April 18, 2002, and was sentenced on May 9, 2001. On March 7, 2005, Whitmore moved to withdraw his guilty pleas. {¶ 3} In his motion, Whitmore contended that he entered his guilty pleas only days after trying to kill himself and while he was on medication for a fractured neck. Also, Whitmore claims the trial court sentenced him upon misinformation. Specifically, Whitmore contends he was not previously charged with aggravated robbery in 1998, although the criminal history used by the trial court to sentence him contained this misinformation. Also, he contended he was not on probation for burglary at the time he was sentenced as indicated in the probation report used by the court. {¶ 4} In overruling Whitmore's motion, the trial court stated as follows: {¶ 5} "Whitmore submits that he was under the influence of `psychotic drugs' when he entered his guilty pleas-specifically, Neurontin, Risperdal, Klonopin, and Zoloft. In support, he presents a letter from a law firm that describes side effects of Neurontin. The letter also alludes to litigation against pharmaceutical companies associated with Neurontin. "Whitmore also submits: {¶ 6} "(1) a medical report from Twin Valley Behavioral Healthcare listing the four drugs above as medications dated March 21, 2001; {¶ 7} "(2) a record from the Clark County Sheriffs Department reporting an incident in which Whitmore became suicidal on April 20, 2001; *Page 3 {¶ 8} "(3) a record from Mental Health Services for Clark County listing the four medications dated April 24, 2001; and {¶ 9} "(4) a report from Mercy Hospital following Whitmore [sic] attempted suicide dated April 20, 2001. {¶ 10} "While there is ample evidence that Whitmore was likely taking medications and was in an agitated state around the time of his plea, he has not presented sufficient evidence that would merit a hearing on whether his plea was less than knowing, intelligent, and voluntary. There is no evidence about the effect of those medications. Moreover, Whitmore can present no evidence on his condition at the time of the plea other than his own self-serving statements. Further, this claim was not raised until nearly four years after the fact. Due to the untimeliness coupled with the speculative and self-serving evidentiary support, the Court finds that relief is not warranted on this issue." {¶ 11} To facilitate the disposition of this appeal, we will begin by addressing Whitmore's second assignment of error. In his second assignment of error, Whitmore contends the trial court abused its discretion in failing to grant him a hearing on his motion. The State notes that we have held that evidentiary hearings are not required on every post-sentence motion to withdraw a guilty plea. State v.Youngblood (Aug. 25, 2006), Mont. App. No. 21078, 2006-Ohio-4390, at ¶ 7. Rather, we held that a movant must establish a reasonable likelihood that the withdrawal is necessary to correct a manifest injustice before a hearing is required. Id. {¶ 12} The following occurred in open court when Whitmore entered his guilty pleas: *Page 4 {¶ 13} "THE COURT: Mr. Whitmore, are you under the influence of alcohol, drugs, or medication this morning? {¶ 14} "DEFENDANT: Yeah, I take medications, but I'm coherent. {¶ 15} "THE COURT: All right. The medications do not affect your ability to understand the proceedings? {¶ 16} "DEFENDANT: No. {¶ 17} "THE COURT: Have you discussed this case with your attorney? {¶ 18} "DEFENDANT: I've discussed in part, yes. Some of the things that the prosecutor related to today happened to be three and a half, maybe four years old as far as any physical violence. {¶ 19} "THE COURT: I understand that, sir, if you're talking about the history of what occurred before. {¶ 20} "DEFENDANT: Okay. {¶ 21} "THE COURT: Are you satisfied with the advice and representation your attorney has given you? {¶ 22} "DEFENDANT: Yes, with the exception of case 01-229, I — it was to my understanding it was to be dropped to a felony five and serve a maximum of a year on that. {¶ 23} "THE COURT: Then this negotiated plea that I have in front of me was not your understanding of what the plea was to be? {¶ 24} "DEFENDANT: Everything with the — they left the felony on 01-229. They still have that as felony four. The offer I received was a felony five on that. {¶ 25} "THE COURT: I see. *Page 5 {¶ 26} "DEFENDANT: If that could be corrected, everything else is in order in this. {¶ 27} "THE COURT: Gentlemen, Court's in recess. (WHEREUPON, a recess was taken at 10:36 a.m. and the proceedings resumed at 10:37 a.m.). {¶ 28} "THE COURT: Mr. Thomas? {¶ 29} "MR. THOMAS: Thank you, Your Honor. The plea form or the form that he's discussing was a note that the prosecutor had given me and I sent over to Mr. Whitmore and inadvertently wrote F5 and it should have been F4. I informed him that was my mistake and the charge — the offer to plea which was indicted as an F4 and not F5. He has indicated that he's willing to accept the offer. {¶ 30} "THE COURT: Mr. Whitmore, are you on probation, parole, community control, or post release control at this time? {¶ 31} "DEFENDANT: My — my probation was terminated with Dave Ellinger. I still owe a fine and it was continued till the fine was paid. That is all I have. I am on nothing further as far as parole or probation. {¶ 32} "THE COURT: But they extended your probation because of the fine being {¶ 33} "DEFENDANT: Yes. {¶ 34} "THE COURT: Do you understand that if you're still on probation, these convictions could be a violation of that probation? {¶ 35} "DEFENDANT: Yes, sir." *Page 6 {¶ 36} The trial court then explained at some length the charges and the sentences Whitmore faced by pleading guilty. Whitmore stated he understood the nature of the charges and the consequences of his plea. (T. 14 and 15.) The Court then found that Whitmore had entered his pleas knowingly, voluntarily, and intelligently. (T. 16.) {¶ 37} Whitmore told the Court at the plea hearing that although he was taking medications, they did not affect his ability to understand the proceedings. There was nothing in the court's colloquy with Whitmore to suggest the medications affected his understanding and appreciation of what he was doing in entering his guilty pleas. Whitmore offered no evidence in support of his motion that the medications in the dosages he was taking could have affected his ability to enter knowing and intelligent pleas. There was absolutely no evidence offered in support of his motion that suggested his trial counsel was constitutionally ineffective for permitting him to enter his pleas while taking medications. Also, Whitmore's own evidentiary material shows that he tried to hang himself in jail two days after he entered his guilty pleas, not before. {¶ 38} In Youngblood, we noted that "`the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by the trial court.'" Id. at ¶ 9, quoting State v.Smith (1977), 49 Ohio St. 2d 261, 264, 3 O.O.3d 402, 361 N.E.2d 1324. In this matter, Whitmore waited four years to assert his innocence and claim he did not enter a knowing and voluntary plea. The trial court did not abuse its discretion in finding that there was no reasonable likelihood that withdrawal of Whitmore's plea was necessary to correct a manifest injustice, and that a hearing was unnecessary. *Page 7 {¶ 39} In his first assignment, Whitmore argues that the trial court abused its discretion in denying his motion. {¶ 40} Appellant's motion was filed a substantial time after the sentence in this case — three (3) years and ten (10) months — and no appeal was taken from the sentence imposed by the trial court. The only basis under Crim. R. 32.1 for granting the motion must be to correct a manifest injustice and the defendant has the burden to prove the existence of such a manifest injustice. Smith, 49 Ohio St.2d at 264. Moreover, the manifest injustice standard demands a showing of extraordinary circumstances. Smith, supra; State v. Wolford (Sept. 17, 1999), Miami App. No. 99CA10; State v. Reed (Oct. 5, 2001), Clark App. No. 01CA0028. A motion seeking to withdraw a guilty plea is addressed to the sound discretion of the court. Smith, supra; and Reed, supra. Whitmore has failed to demonstrate in his motion that he was the victim of a manifest injustice. The first assignment of error is also Overruled. {¶ 41} The Judgment of the trial court is Affirmed. WOLFF, P.J., and GRADY, J., concur. Copies mailed to: Hon. Richard J. O'Neill *Page 1

2016-07-06 06:42:26.36867+00

DECISION. {¶ 1} Plaintiff-appellant Mary Louise Doss appeals the dismissal of her retaliatory-discharge claim against her employer of twenty-three years. Doss claimed that she had been fired because she had filed workers' compensation claims. Finding insufficient evidence of retaliation, the trial court granted summary judgment in favor of defendants-appellees Hilltop Rental Company and Summit View Properties. We affirm. I. Workers' Compensation Claims and a Firing {¶ 2} Doss worked as a cleaner for Hilltop and Summit View's two apartment complexes from 1978 until April 2001. Doss's job responsibilities included cleaning vacant and model apartments and common areas at the complexes. Though at times the cleaning team numbered as many as six workers, at the time of her dismissal, the cleaning team consisted of Doss and her sister, Ruby Walker. For the last six years of her employment, Doss's supervisor was Colleen Lawrence. {¶ 3} Doss filed several different workers' compensation claims during her employment. The first filing was in 1995, when Doss suffered injuries to her back and right shoulder in an elevator accident. Doss next filed a claim in 1997, when she developed carpel tunnel syndrome in both hands. She required surgery on one hand in 1997 and on the other in 1998. In 2000, Doss filed another workers' compensation claim when she fell off a ladder while cleaning an apartment. She injured her left shoulder, back, and neck, aggravating her prior injuries from the 1995 accident. {¶ 4} Despite the surgeries on her hands for her carpel tunnel syndrome, in 2000, Doss again began experiencing numbness and other symptoms in her hands. Doctors recommended that she have additional surgery, but Doss opted for physical therapy to address the problem. {¶ 5} On April 20, 2001, Doss arrived at work and received her work order for the day from Lawrence. The work order included cleaning caulk off windows at one of the apartment complexes and carrying outlet switch covers to replace any missing in the apartments. {¶ 6} The order to clean the caulk upset Doss, because Lawrence had previously told Doss and Walker not to worry about the caulk on the windows, due to the possibility of litigation with the window installer. The order to carry the switch plate covers also upset Doss, because she felt that that was something maintenance personnel typically took care of. In a heated exchange, Doss expressed her unhappiness to Lawrence, and Lawrence said that she would get somebody else to clean the caulking. {¶ 7} Doss headed off to begin other cleaning, but Lawrence followed her, not wanting to leave things unresolved. Lawrence testified that Doss began complaining about other employees and making negative comments about her job. Lawrence testified that Doss told her that "I was adding extra work. That she couldn't do it all. That her body hurts at the end of the day and I keep pushing her to do more." {¶ 8} Lawrence said to Doss that she did not realize Doss felt as she did, adding, "You shouldn't be working here if you have these feelings." Doss accused Lawrence of trying to provoke her into quitting and wanting to get rid of her due to her workers' compensation claims. Doss told her that she would not quit and that Lawrence would have to fire her. Lawrence responded by firing Doss, and she testified that she felt that that was what Doss had wanted her to do. II. Summary-Judgment and Retaliatory-Discharge Standards {¶ 9} In her two assignments of error, Doss argues that the trial court erred in granting summary judgment on her workers'-compensation-retaliation claim and on her public-policy claim. We review a grant of summary judgment de novo.1 Hilltop and Summit View 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 Doss, and that conclusion was adverse to Doss.2 {¶ 10} Under R.C. 4123.90, it is illegal for an employer to retaliate against an employee for filing or pursuing a claim for workers' compensation benefits: "No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers' compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer."3 {¶ 11} To establish a prima facie case of retaliatory discharge under the statute, the employee must show that he or she "was injured on the job, filed a claim for workers' compensation, and was discharged by that employer in contravention of R.C. 4123.90."4 If the employee establishes a prima facie case, then the employer must set forth a legitimate nonretaliatory reason for the discharge.5 Finally, if the employer provides a nonretaliatory reason, the employee must prove that the reason was pretextual.6 {¶ 12} Hilltop and Summit View agree with Doss that the first two prongs for a prima facie case were established in the trial court — that Doss was injured on the job and filed workers' compensation claims. But Doss argues that the trial court erred when it did not find facts supporting the existence of the third prong — that she was firedbecause of her workers' compensation filings. {¶ 13} Ohio and other states with similar statutes use a flexible evidentiary test for purposes of assessing retaliatory behavior.7 Most courts look at the "before and after" picture.8 "Factors taken into consideration include such punitive action as bad performance reports surfacing immediately after a workers' compensation claim was filed, the length of time between the filing of a claim and discharge, changes in salary level, hostile attitudes emerging, and whether legitimate reasons exist for the discharge."9 The burden of proving that the employer had a retaliatory motive remains at all times on the employee.10 III. Doss Failed to Establish Hostile Attitudes {¶ 14} To prove that her firing was based on retaliation, Doss offered facts to show that she faced a hostile attitude from her supervisor after she filed her carpel-tunnel-syndrome claim. Specifically, she cited instances of "nit-picking," inconsideration, and changes in work assignments. {¶ 15} In her deposition, Doss testified that she and Lawrence had a "good relationship, working and personal," before Doss's carpel-tunnel-syndrome surgery, but that, after the surgery, Lawrence's attitude towards Doss changed. Doss testified, "She wasn't considerate, and she was nitpicking me on my work and just finding fault with stuff." Asked to cite specific examples of the nitpicking, Doss said that, three or four times, Lawrence inspected an apartment after Doss and Walker had finished cleaning and requested that they go back and clean the cracks in the light-switch plates with a toothbrush. Both workers had to return and finish cleaning the light-switch plates, which Doss acknowledged were still dirty. {¶ 16} Doss claimed that, after her surgery, Lawrence did not show consideration and concern for the cleaners. At one point, Lawrence asked Doss and the other cleaner to clean the heat lines in the apartments. The cleaners did as they were asked, but became sick and got headaches from the chemical that they were using to clean the coils. Doss and the other cleaner eventually took the chemical to Lawrence and said the chemical was dangerous and that they needed more ventilation to use it. Doss said that Lawrence was not happy that they had complained about it, but that she did obtain a different chemical for them to use. {¶ 17} On another instance, Charlie Barnett, the maintenance supervisor, was supervising the cleaners, as he did whenever Lawrence was unavailable or on vacation. Barnett ordered Doss and Walker to clean an apartment at the same time that a contractor was in the apartment reglazing the bathtub. The cleaners had previously been told by contractors not to be in the apartments when the tubs were reglazed, as the chemicals they used were dangerous. The contractors themselves would don masks and a complete chemical suit when they reglazed the tubs. But Barnett screamed at the cleaners and told them that they could not leave the apartment until the work was done. {¶ 18} Doss refused to do as Barnett ordered, and, as she was not feeling well anyway, went home. Walker and another worker cleaned the apartment, but both left before the contractor reglazed the tub. When Lawrence returned to work, she called Doss at home. Lawrence asked how Doss was feeling and apologized for Barnett's behavior. Doss said, "[S]he told me to take care of myself and get some rest and she would see me the next day." {¶ 19} We are not convinced that any of the instances cited by Doss showed that a hostile attitude had emerged from Lawrence towards Doss after Doss had filed her carpel-tunnel-syndrome workers' compensation claim. The "nitpicking" example that Doss cited applied to both Doss and another worker, and Doss herself acknowledged that the light-switch plates could have been cleaned better. When Lawrence was told that the chemical the cleaners were using to clean the heating coils was dangerous and was causing them to become sick, she obtained a different chemical for them to use. And Lawrence was not even present or involved with the incident when Barnett ordered Doss and Walker to clean an apartment while a tub was being reglazed. Upon learning what had happened, Lawrence phoned Doss, apologized, and made sure that she was returning to work the next day. That was clearly not the behavior of a supervisor eager to dismiss a troublesome employee. {¶ 20} In addition to nitpicking and inconsideration by Lawrence, Doss claimed that the cleaners were assigned new tasks that they were not required to do before her surgeries. {¶ 21} One day, the cleaners were instructed to clean the bathroom sink stoppers. Barnett was instructed to show them how to take the stoppers apart, and Doss testified that, with her carpel tunnel syndrome, she would not have been able to do it. When Barnett attempted to demonstrate how to get to a stopper to clean it, he had difficulty taking it apart and then could not put it back together without it leaking. Both he and the cleaners told Lawrence that it was not a good idea to have the cleaners be responsible for cleaning the sink stoppers. After that, Doss and Walker did not clean the stoppers as part of their regular duties, and Lawrence never said anything about it to either of them. We fail to see how the request to clean the sink stoppers, which Doss and Walker never did and for which they suffered no consequences, demonstrated a hostile attitude from Doss's supervisor. {¶ 22} Doss also believed that the assignment to clean the caulk off the windows, which led to the confrontation between Lawrence and Doss and Doss's firing, was an example of Lawrence creating a hostile environment. Doss claimed that she was told repeatedly that she did not need to clean the windows because of possible litigation with the window installers. But, according to Doss, once Lawrence's attitude towards her changed, Lawrence assigned Doss to clean the windows. {¶ 23} First, it should be noted that when Doss became upset about cleaning the windows on the morning she was fired, Lawrence expressed annoyance, but told Doss she would get somebody else to clean them. Second, in Lawrence's deposition, she explained that the windows had been installed incorrectly. Summit View eventually settled with the window installers for the faulty work, and, at that point, Summit View handled the repair and cleaning of the windows. On Doss's last day of work, an apartment that had one of the caulked windows needed cleaning, and Lawrence assigned Doss to do it. {¶ 24} Construing all the facts cited in Doss's favor, we conclude that there was little or no evidence supporting her claim that she was subjected to a hostile attitude after filing her workers' compensation claims, or that she was fired because she filed the claims. There was at times tension between the cleaners and their supervisors. But the examples cited by Doss did not show that the tension existed because of her workers' compensation claims, or that she was fired because of the claims. IV. Comments About Health {¶ 25} More supportive of Doss's argument that her firing was retaliatory were statements made by Lawrence concerning Doss's workers' compensation claims and Doss's health issues. Doss claimed that Lawrence would become upset when Doss had to attend doctors' appointments or workers' compensation hearings. One day, upon learning that Doss had a workers' compensation hearing that day, Lawrence confronted Doss and asked, "[N]ow, what's this one about?" Doss replied that she was not sure. Doss testified that Lawrence said, "[W]ell, I just think they're pushing this stuff a little too far[,]" and that she thought it was ridiculous. {¶ 26} On other occasions, Lawrence questioned Doss's use of chiropractors, saying she did not believe in them and did not think they could help Doss. And when Doss's doctors told her that her carpel tunnel syndrome had returned and that she needed surgery again, Lawrence stated that she thought that was ridiculous. She asked Doss if she was going to have the surgery again and stated that she thought that it would be silly to have surgery again if the carpel tunnel syndrome had returned so soon. {¶ 27} Kim Smith, an office worker for Summit View, stated in an affidavit that she had overheard Lawrence complain about Doss's workers' compensation claim for carpel tunnel syndrome. She specifically recalled that Lawrence was angry about Summit View having to pay a large bill for treatment of Doss's injury. According to Smith, Lawrence expressed unhappiness about the length of time that Doss had been receiving workers' compensation benefits for her carpel tunnel syndrome. Smith stated, "Lawrence said something like `you would think that after two surgeries you wouldn't have to have anymore workers' compensation and that these problems would have been taken care of.'" {¶ 28} Construed in Doss's favor, Lawrence's comments could have supported the theory that Lawrence was growing frustrated over Doss's seemingly never-ending health issues and was growing concerned about the expense and time involved for Hilltop and Summit View. But the comments did not show that Lawrence's frustration with Doss's ongoing workers' compensation claims created a hostile attitude that ultimately led to Doss's firing. {¶ 29} In Boyd v. Winton Hills Medical and Health Center,Inc.,11 we held that a single comment by an employer could be enough to create an inference that the employer had some hostility towards an employee. But, in Boyd, the employer had stated, "He filed that Workman's Comp[.] claim; I want him out of here."12 In another case where the court held that the employee had presented a prima facie case of retaliation, a supervisor had told the employee, "You are screwing us. Workers compensation costs us a lot of money, and that's money that we don't have to give you raises. I'm going to snap you out of this. If I give you work, you gotta do it."13 In yet another case where the court ruled in the employee's favor and found evidence of retaliation, as soon as the employee had hurt her back, the supervisor said, "I can tell you right now, this is not a Workmen's Comp claim."14 {¶ 30} We note that none of Lawrence's comments contained any threat to Doss's employment. Doss admitted that Lawrence had never told her not to have the second surgery for her carpel tunnel syndrome. Lawrence also never told Doss not to file a workers' compensation claim or to drop a workers' compensation claim that had already been filed. Most importantly, unlike the foregoing cases, Lawrence never connected any of her comments about Doss's health or workers' compensation benefits to a threat to end Doss's employment. {¶ 31} Lawrence testified that she had fired Doss because she felt that Doss wanted to be fired. Doss testified that a number of workers at Summit View had voiced concerns about how long Doss could continue to do the hard work of a cleaner. She testified that Barnett had said that maybe she was getting too old to do the job. Lawrence also asked Doss several times how much longer she could do the job and said that Doss herself complained that she was getting too old to do the work. Lawrence testified that Doss had told her daughters that she did not know how much longer she could do her job. {¶ 32} Lawrence said, "Now we talked a lot at the end of the day and some days her eyes would tell the pain that she was in. * * * [S]he didn't know how much longer the pain would be — that it could get to the point that she couldn't take the pain and do the job." {¶ 33} Doss testified that when Lawrence asked her how long she could continue doing such hard work, she said, "[I]t's hard with all my problems with my workman's comp, but I'm trying to hang in here until I can retire at 62 at least. * * * I just knew I had to hang in there. I had to support myself. I couldn't be a burden on my children." (Doss was 57 when she was fired). Nonetheless, Doss admitted, "Since I fell off the ladder I was really struggling." {¶ 34} Doss could prevail on her claim under R.C. 4123.90 only if she alleged and proved that she was fired not because of her job-related injuries, but because of her pursuit of the workers' compensation benefits awarded as a result of those injuries.15 We conclude that the comments by Lawrence concerning Doss's health issues and ongoing workers' compensation claims did not sufficiently show a causal relationship between Doss's workers' compensation claims and her firing. {¶ 35} "Not every action taken by an employer that has a disadvantageous or detrimental effect upon an employee is a `punitive action' within the meaning of the statute. To hold otherwise would effectively preserve the status quo of every employee receiving benefits for job-related injuries, regardless of future job performance."16 Construing the facts in Doss's favor, we hold that the evidence was insufficient to support her theory that a hostile attitude had emerged after she had filed her workers' compensation claims or that Lawrence had fired her because she had filed the claims. V. Other Factors {¶ 36} In addition to Doss's failure to establish that she had endured hostile attitudes at work because of her filing of workers' compensation claims, the other relevant factors bearing upon whether her dismissal was retaliatory did not favor Doss. In her argument, Doss focused on the factor of whether there was a hostile attitude towards her after the filing of her workers' compensation claims. But we must also consider Doss's performance reports after her claims were filed, the length of time between the claims and the firing, any changes in salary level, and whether legitimate reasons existed for her discharge. {¶ 37} Doss presented no evidence that she had ever received a bad performance report after any of her workers' compensation claims were filed. In fact, Doss testified that several times she had been awarded "Employee of the Month" honors. The only specific date that she could remember for the award was September 1999, which was after Doss had filed the workers' compensation claims for her elevator accident and both hand surgeries. {¶ 38} In considering the length of time between the filing of the workers' compensation claims and the discharge, we note that Doss originally filed a workers' compensation claim in 1995, six years before she was fired. The last claim she actually filed was in March 2000, and she was not fired until April 2001. This factor suggests that Doss's firing was unrelated to her workers' compensation claims. {¶ 39} But Doss argues that her firing came within two months of when she had told Lawrence that her doctor had recommended additional surgery for her carpel tunnel syndrome. And the most questionable comments made by Lawrence were in response to learning that Doss might need to have further surgery both her comments to Doss that she thought further surgery was ridiculous and her comments overheard by Smith expressing unhappiness over the length of time Doss was receiving workers' compensation benefits for her carpel tunnel syndrome. Looked at in this way, the factor of the length of time between the claims and the firing could support Doss's argument that her firing was related to her extended health issues and the prolonged workers' compensation claims. {¶ 40} The next factor concerns any changes in salary level. Doss testified that at the beginning of 2001, about nine months after her last workers' compensation filing, she had received an increase in salary of 5%, from $9.85 an hour to $10.35 an hour. Also, Doss's reduced rate on her apartment at Summit View, where she paid only $125 a month, stayed the same, even though the normal rental rate for her apartment had increased. {¶ 41} In addition, Doss received several unsolicited bonuses from Lawrence. Doss testified that she had received a bonus of $250 when she had helped to fill in for another worker. Doss could not remember the date, but thought that it was several years before she was fired. In October 2000, Lawrence gave Doss a bonus of $250 before Doss went on vacation. Doss said that she had received it for "all the hard work I had done and getting all the apartments done and ready on time." And a few weeks before she was fired, Doss's paycheck was about $37 too much because an insurance payment had mistakenly not been deducted. Lawrence told Doss just to consider it a bonus. The salary increase and the bonuses clearly indicated a good working relationship between Lawrence and Doss. They also showed that Lawrence appreciated Doss's efforts at work. {¶ 42} Perhaps most damaging to Doss's claim of a retaliatory discharge was that Lawrence repeatedly offered other employment opportunities to Doss. {¶ 43} Within the last year and a half of Doss's employment, Lawrence offered Doss a job in the rental office. Instead of the repetitive manual labor of cleaning apartments, Doss was offered a job leasing apartments to new residents. Lawrence also suggested that, in time, Doss could take over the office manager's job. Doss declined the offer because she did not think that she had the skills to do the work. Lawrence encouraged her nonetheless, saying that she could learn the necessary skills. Lawrence said that if her daughter, a high-school student, could do it, she knew Doss could do it. But Doss did not accept the offer. {¶ 44} Asked how Lawrence responded when she turned the job down, Doss said, "She wasn't very happy about it. She said she had spent a lot of time thinking about it and working on it and stuff. And I guess she thought I would take it, but I didn't." {¶ 45} Later, within the last year of her employment, Lawrence offered Doss the job of resident manager of one of the apartment complexes. Lawrence specifically presented the job offer as something that would be physically easier for Doss to do. The work would not have been manual labor, and Doss would have lived at the site rent-free and leased the apartments to other tenants. Again Doss declined the offer. She did not consider the new job full-time work and was concerned that she would still be required to do some cleaning. In addition, Doss said that it involved paperwork and worried that she would not be able to do the work. {¶ 46} Doss turned down both job offers, even though she admitted that they would have been promotions. Doss felt that, with her limited education, she was unqualified for either job and preferred to remain working as a cleaner. {¶ 47} And finally there was significant evidence that Doss and Lawrence had a good relationship, both professional and personal, up until the day Doss was fired. Doss herself testified that, the day before she was fired, she had been laughing and joking with Lawrence. Walker, Doss's sister, testified that the friendship between Doss and Lawrence did not cease at any time during Doss's employment. According to Walker, "Mary Lou always went upstairs and they were always talking about somebody in [Lawrence's] family or somebody in Mary Lou's — grandkids or daughter, they were always talking about stuff together." {¶ 48} When construing all the facts in Doss's favor, we hold that there were very few facts that supported her claim of retaliatory discharge. Lawrence expressed frustration and general negativity towards Doss after Doss had said that she might need further surgery for her carpel tunnel syndrome. Lawrence sometimes acted annoyed or frustrated at Doss's many workers' compensation hearings and medical appointments. Lawrence expressed doubt about whether additional surgery and the medical care Doss was receiving were even necessary. Lawrence also questioned Doss's ability to continue the demanding physical work of cleaning apartments. The timing of Doss's firing was within several months of when she had revealed that she might require further surgery for her carpel tunnel syndrome. {¶ 49} Taken as a whole, the evidence was insufficient to make a prima facie case that Doss's firing was in retaliation for her workers' compensation claims. Based on the evidence, the only conclusion reasonable minds could reach was that while Doss had struggled with her health and had filed numerous workers' compensation claims, sometimes frustrating her employer, she had not been fired because she had filed the workers' compensation claims. {¶ 50} Therefore, we overrule Doss's first assignment of error and hold that summary judgment was properly granted against Doss on her claim of retaliatory discharge. VI. Public-Policy Claim {¶ 51} In her second assignment of error, Doss argues that the trial court improperly dismissed her claim of wrongful discharge in violation of public policy. {¶ 52} We have previously held that an employee has a cause of action for termination in violation of public policy based on an employer's violations of R.C. 4123.90.17 But for Doss to have succeeded on a public-policy claim based on R.C. 4123.90, she had to comply with the requirements of the statute.18 Because we have determined that Doss failed to establish that she had been fired in retaliation for her workers' compensation claims, her common-law claim based on public policy also failed and was properly dismissed. {¶ 53} Accordingly, we overrule Doss's second assignment of error and affirm the judgment of the trial court. Judgment affirmed. Sundermann, P.J., and Hildebrandt, J., 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 Co., 77 Ohio St.3d 102, 105,1996-Ohio-336, 671 N.E.2d 241. 3 R.C. 4123.90. 4 See Wilson v. Riverside Hospital (1985), 18 Ohio St.3d 8,479 N.E.2d 275, syllabus. 5 See Boyd v. Winton Hills Medical and Health Center (1999),133 Ohio App.3d 150, 154, 727 N.E.2d 137. 6 Id. 7 See Hohn v. Deco Tools, Inc. (Jan. 23, 1987), 6th Dist. No. L-86-119. 8 Id. 9 Id. See, also, Boyd v. Winton Hills Medical and Health Center, supra, at 154, and Anschutz v. Dresser Industries, Inc. (Dec. 11, 1991), 3rd Dist. No. 3-90-8. 10 See Boyd v. Winton Hills Medical and Health Center, supra, at 154. 11 Supra, at 155-156. 12 Id. at 155. 13 See Limbacher v. Penn-Ohio Coal Co., 5th Dist. No. 2001 AP 07 0065, 2002-Ohio-2870. 14 See Kent v. Chester Labs, Inc. (2001), 144 Ohio App.3d 587,589-590, 761 N.E.2d 60. 15 See Bea v. Revlon Realistic Professional Products, Inc. (Nov. 27, 1985), 1st Dist. No. C-840926. 16 Id. 17 See Boyd v. Winton Hills Medical and Health Center, Inc., supra, at 161. 18 See Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134,1997-Ohio-219, 677 N.E.2d 308, paragraph three of the syllabus; Celestev. Wiseco Piston, 151 Ohio App.3d 554, 2003-Ohio-703, 784 N.E.2d 1198, at ¶ 24.

2016-07-06 06:42:25.6203+00

OPINION {¶ 1} Appellee-appellant, Cynthia Tucker, appeals from a judgment of the Franklin County Court of Common Pleas, reversing the decision of the hearing officer of the Unemployment Compensation Review Commission ("commission") allowing appellant's claim for unemployment benefits for the week ending October 12, 2002. For the reasons that follow, we affirm. {¶ 2} On October 9, 2002, appellant filed a claim for unemployment compensation benefits, which was allowed on October 24, 2002 by the Ohio Department of Job and Family Services ("ODJFS") for the week ending October 12, 2002. Allowance of the claim was based on the finding that appellant was unemployed from employer-appellee Home Health Connection ("appellee") due to a lack of work. This decision was affirmed on redetermination mailed November 15, 2002. On the employer's appeal of the ODJFS director's redetermination, a hearing officer conducted a hearing on April 1, 2003 and affirmed the director's redetermination. {¶ 3} The facts adduced from the hearing consist of the following. Appellant was employed by appellee as a home health aide from June 17, 2002 through July 12, 2002. During that time, appellant was assigned to care for Ms. Madden, who also happened to be appellant's personal friend. This assignment ended after Ms. Madden passed away on July 12, 2002. Mr. Shawn Mafi ("Mafi"), appellee's administrator, testified that on July 15, 2002, he asked appellant if she was "interested in working with us and staying on and for us to give her other cases." (Tr. at 16.) In response, appellant indicated she was not interested "at this time right now" because she "wanted to take some time off due to Ms. Maden's [sic] death." Id. at 24. Appellant stated she would "let him know" when she was available. Id. {¶ 4} Appellee had no further contact with appellant until October 2, 2002. On that day, appellant called Michelle Phipps ("Phipps"), appellee's scheduling coordinator, to indicate she was available to work. Thereafter, Phipps began looking for work for appellant. Appellant and Phipps both testified that appellant declined two work offers made by Phipps, because one of the assignments included lifting duties, and the other assignment conflicted with a previously scheduled doctor's appointment. In his decision, the hearing officer determined that because the offers of work were made to appellant after the week ending October 12, 2002, her unemployment for that week was due to a lack of work, thus qualifying her for unemployment compensation. Further, the hearing officer stated ODJFS should determine whether appellant's refusals of work offered to her after the week ending October 12, 2002 were for or without just cause. {¶ 5} By decision issued April 4, 2003, the hearing officer affirmed the finding by the ODJFS Director that appellant had been separated by appellee due to a lack of work. In his decision, the hearing officer found: The facts set forth above show that the claimant completed the assignment at Ms. Madden's [sic]. The facts show that on July 15, 2002, a conversation concerning the claimant's future with Home Health Connection occurred between the claimant and Mr. Mafi. The facts show that the claimant did not want to return to work right away but said she would call when she was again available. Since the claimant's assignment ended, the claimant is separated due to a lack of work. The facts show that after the claimant called on October 2, 2002, she filed her claim for unemployment benefits. The claimant was again able and available for work at that time. A review of the appeal letter from the employer to the redetermination decision lists dates after the week ending October 12, 2002, on which claimant was offered worked [sic] that she refused. The Ohio Department of Job and Family Services should investigate and determine whether or not the refusals of work were for or without just cause. Additional determinations should be issued as necessary. (April 14, 2003 Decision, at 2-3.) {¶ 6} Appellee requested review before the commission, but the requested review was disallowed. Thereafter, appellee appealed the hearing officer's decision to the Franklin County Court of Common Pleas, pursuant to R.C. 4141.282. By decision filed October 23, 2003, the trial court reversed the order of the hearing officer. In its decision, the court noted Mafi spoke with appellant on July 15, 2002 to see if she would still be interested in working for appellee. The court found appellant informed Mafi she was not interested in working for appellee "at this time," and she would "let him know" when she was ready to return to work. (October 23, 2003 Decision at 2.) The court found appellant did not seek employment from appellee again until she called on October 2, 2002 to indicate she was ready to return to work. The court found at that time, appellant declined one job offer from appellee because the position included lifting duties. The court found appellant presented doctor's restrictions for the first time at the hearing that had never been provided to appellee. The court further found "when she stated that she told appellant she could not do lifting, no evidence supported appellant's position." Id. Finally, the court noted appellant declined a second offer of employment because of a previously scheduled doctor's appointment. {¶ 7} The court emphasized that, in order for a claimant to qualify for unemployment compensation benefits, separation from employment must be involuntary. Applying this principle, the court found appellant voluntarily chose not to accept employment from July until October, when she called appellee to indicate she was ready to return to work. The court concluded, "the law does not impose a perpetual obligation on the employer to continue to have work for an employee who chooses to discontinue employment for an unstated interval of time." Id. at 3-4. Thus, the court found the hearing officer's decision was unlawful, unreasonable, and against the manifest weight of the evidence. {¶ 8} On appeal, appellant asserts one assignment of error:1 The Common Pleas Court committed error by redetermining the facts of the case and substituting its own judgment for that of the administrative agency, and thereupon reversing the reasonable determination of the administrative agency. {¶ 9} Under R.C. 4141.282(H), a party may appeal the final determination of the commission to the court of common pleas, which shall hear the appeal on the record certified by the commission. On appeal, the court may reverse the decision of the commission if it finds the decision to be unlawful, unreasonable, or against the manifest weight of the evidence. R.C. 4141.282(H). {¶ 10} Our standard of review is identical to that of the court of common pleas. Tzangas, Plakas Mannos v. Admr., Ohio Bur. Of Emp.Servs. (1995), 73 Ohio St. 3d 694, 696, 653 N.E.2d 1207, citing Irvine v.Unemp. Comp. Bd. of Review (1985), 19 Ohio St. 3d 15, 18, 19 OBR 12,482 N.E.2d 587. Reviewing courts, whether at the common pleas or appellate level, are not permitted to make factual findings or to determine the credibility of witnesses; their duty is limited to determining whether the evidence in the record supports the hearing officer's determination. Id.; Irvine, at 18. See, also, Aliff v. OhioDept. of Job and Family Servs. (Sept. 25, 2001), Franklin App. No. 01AP-18, 2001 Ohio App. LEXIS 4303 at *6, appeal denied (2002),94 Ohio St. 3d 1433, 761 N.E.2d 48; Higgins v. Patterson Pools, Inc. (Sept. 26, 2000), Franklin App. No. 99AP-1394, 2000 Ohio App. LEXIS 4402 at *5. Jones v. Bd. of Review (Sept. 28, 1993), Franklin App. No. 93AP-430, 1993 Ohio App. LEXIS 4788 at *6, citing Brown-Brockmeyer Co.v. Roach (1947), 148 Ohio St. 511, 518, 36 Ohio Op. 167, 76 N.E.2d 79 ("A reviewing court should not substitute its judgment for that of the Board of Review on purely factual questions"). {¶ 11} In her sole assignment of error, appellant contends that the trial court's decision rests on its redetermination of the hearing officer's factual findings, and that the trial court's factual findings are unsupported by the evidence in the record. Thus, appellant contends the trial court exceeded its authority, and urges us to reverse its decision. {¶ 12} Appellant admits that in July 2002, she declined further work and indicated she would "get back to" appellee when she was ready to "take additional assignments." (Appellant's Brief, at 1.) Appellant also concedes she did not give Mafi a definite date as to when she intended to return to work. However, appellant argues that, because of her conversation with Mafi, appellee was "aware from the outset" that she wanted to return to work. Id. at 6. Moreover, appellant emphasizes she called appellee on October 2, 2002 to indicate she was available to work. By seeking new work assignments for her in October 2002, appellant asserts that appellee still considered her an employee. {¶ 13} R.C. 4141.29 provides, "[e]ach eligible individual shall receive benefits as compensation for loss of remuneration due to involuntary total or partial unemployment." "The Unemployment Compensation Act was intended to provide financial assistance to an individual who had worked, was able and willing to work, but was temporarily without employment through no fault or agreement of his own."Salzl v. Gibson Greeting Cards (1980), 61 Ohio St. 2d 35, 39, 15 O.O.3d 49, 399 N.E.2d 76. Generally, "the basic eligibility for unemployment benefits depends upon the establishment of an `employment' relationship followed by `involuntary unemployment.'" Mathieu v. Dudley (1967), 10 Ohio App. 2d 169, 174, 39 O.O.2d 332, 226 N.E.2d 763. Employment is defined as "service performed by an individual for remuneration under any contract of hire, written or oral, express or implied." R.C. 4141.01(B)(1). {¶ 14} In this case, the hearing officer did not make any factual findings regarding work restrictions allegedly recommended by her doctor. Further, the hearing officer concluded ODJFS should "investigate and determine whether or not the refusals of work [offered to her after the week ending October 12, 2002] were for or without just cause," and if necessary, issue additional determinations. (April 14, 2003 Decision, at 3.) Therefore, we note the trial court exceeded its limited authority by improperly making factual determinations regarding the reasons for and timing of appellant's refusals to accept work assignments in October 2002, and evidence regarding the work restrictions allegedly recommended by her doctor. Tzangas, supra, at 696; Irvine, supra, at 18. As such, we find improper any reliance by the trial court on facts related to the reasons for and timing of appellant's refusals of offers for work, and evidence related to doctor recommended work restrictions. {¶ 15} Notwithstanding these improper factual findings by the trial court, our review of the record indicates the trial court did not err in reversing the hearing officer's decision. After the expiration of her assignment with Ms. Madden, appellant informed Mafi on July 15, 2002 she was not interested in working for appellee and she would contact him when she was available. The record establishes that appellant did not seek employment from appellee again until October 2002, when she called appellee to indicate she was ready to return to work. Thus, appellant's unemployment from July until she spoke with Phipps on October 2, 2002, can not be considered a result "through no fault or agreement of her own," as appellant voluntarily chose to decline any further work assignments until further notice. Salzl, supra, at 39. {¶ 16} At the April 1, 2003 hearing, neither Phipps nor appellant offered a detailed account of their conversation that occurred on October 2, 2002. Although he found Phipps began looking for work for appellant after this conversation, the hearing officer did not determine whether Phipps agreed at that time to employ appellant. As such, we find the hearing officer's inherent conclusion that an employment relationship existed in October 2002, is not supported by the evidence in the record. Phipps' action of looking for work assignments for appellant does not, standing by itself, conclusively create an existing employment relationship. Based on the foregoing, we find the hearing officer's determination was against the manifest weight of the evidence, and overrule appellant's assignment of error. {¶ 17} Having overruled appellant's single assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. Brown, P.J., and Lazarus, J., concur. 1 The record reflects appellee did not submit a brief in the instant matter.

2016-07-06 06:42:25.646131+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, Damon Smith, appeals the decision of the Summit County Court of Common Pleas, which found him guilty of possession of cocaine and resisting arrest. This Court affirms. I. {¶ 2} Officers Matthew Beech and Brian Stevens of the Akron Police Department were dispatched to the Edgewood Homes area in response to a call from a female who stated that a male in her apartment was refusing to leave despite having been requested to do so. *Page 2 {¶ 3} The officers arrived on the scene and began knocking at the door when a female approached from a neighbor's apartment. The woman identified herself as the person who called police. She told the officers that she had been fighting with her boyfriend and that he refused to leave the apartment. {¶ 4} Upon entering the apartment, the officers came upon Mr. Smith and learned that he had an outstanding warrant for his arrest for failure to pay child support. The officers placed Mr. Smith under arrest, handcuffed him, and escorted him to the police cruiser. Before removing Mr. Smith from the apartment, Officer Beech did a pat down to check him for weapons. On the way out to the cruiser, Mr. Smith continuously yelled at the female and attempted to pull away from the officers. At one point, Mr. Smith kicked Officer Beech in the right knee and Officer Stevens struck him and took him to the ground. The officers then called a paddy wagon to come pick up Mr. Smith. While waiting in the back of the cruiser for the paddy wagon, Mr. Smith continued to yell at the female and flail around in the back seat, kicking at the windows. As the officers were transferring Mr. Smith to the paddy wagon, Officer Beech noticed a white lump in the floor board of the cruiser where Mr. Smith was sitting. After escorting Mr. Smith most of the way to the paddy wagon with Officer Stevens, Officer Beech returned to the cruiser and discovered that the white lump was a clear baggie containing a substance that was later determined to be 123.23 grams of powder cocaine. *Page 3 {¶ 5} Mr. Smith was indicted by the Summit County Grand jury on one count of trafficking in cocaine, a violation of R.C. 2925.03, one count of possession of cocaine, a violation of R.C. 2925.11, and one count of resisting arrest, a violation of R.C. 2921.33. Mr. Smith pled not guilty and the matter proceeded to a jury trial. At the conclusion of the trial, the jury found Mr. Smith not guilty of trafficking in cocaine, but guilty of possession of cocaine and resisting arrest. Mr. Smith was sentenced to a total term of two years incarceration. II. ASSIGNMENT OF ERROR I "THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A FINDING OF GUILT FOR POSSESSION OF COCAINE OR RESISTING ARREST." ASSIGNMENT OF ERROR II "THE VERDICT OF GUILTY OF POSSESSION OF COCAINE AND RESISTING ARREST WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." ASSIGNMENT OF ERROR III "THE TRIAL COURT ERRED BY NOT GRANTING DEFENSE COUNSEL'S [CRIM.R.] 29 MOTION." {¶ 6} Mr. Smith argues that his convictions were not supported by sufficient evidence and are against the manifest weight of the evidence. He further asserts that the trial court erred in denying his Crim.R. 29 motion for acquittal as to both charges. This Court disagrees. *Page 4 {¶ 7} As a preliminary matter, we observe that sufficiency of the evidence and weight of the evidence are legally distinct issues.State v. Thompkins (1997), 78 Ohio St. 3d 380, 386. {¶ 8} Crim.R. 29(A) provides that a trial court "shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." A trial court may not grant an acquittal by authority of Crim.R. 29(A) if the record demonstrates "that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Wolfe (1988), 51 Ohio App. 3d 215, 216. In making this determination, all evidence must be construed in a light most favorable to the prosecution. Id. "In essence, sufficiency is a test of adequacy." Thompkins, 78 Ohio St.3d at 386. {¶ 9} "While the test for sufficiency requires a determination of whether the [S]tate has met its burden of production at trial, a manifest weight challenge questions whether the [S]tate has met its burden of persuasion." State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, citing Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring). When a defendant asserts his conviction is against the manifest weight of the evidence, "an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a *Page 5 manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Otten (1986), 33 Ohio App. 3d 339, 340. This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id. {¶ 10} Sufficiency of the evidence is required to take a case to the jury; therefore, "a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency. Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency."State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462. {¶ 11} Therefore, we will address Mr. Smith's claims that his convictions were against the manifest weight of the evidence first, as they are dispositive of his claims of insufficiency. We will address Mr. Smith's arguments as they relate to each individual offense. Possession of Cocaine {¶ 12} R.C. 2925.11(A) provides that, "[n]o person shall knowingly obtain, possess, or use a controlled substance." "Possession may be actual or constructive." State v. Fry, 9th Dist No. 23211,2007-Ohio-3240, at ¶ 47, quoting State v. Kobi (1997),122 Ohio App. 3d 160, 174. "Constructive possession has been defined as `knowingly [exercising] dominion and control over [the drugs], even though [they] may not be within his immediate physical possession.'" State v.Hardison, *Page 6 9th Dist. No. 23050, 2007-Ohio-366, at ¶ 22, quoting State v.Hankerson (1982), 70 Ohio St. 2d 87, syllabus. See, also, State v.Wolery (1976), 46 Ohio St. 2d 316, 329. Furthermore, ownership need not be proven to establish constructive possession. State v. Mann (1993),93 Ohio App. 3d 301, 308. Circumstantial evidence is sufficient to support the elements of constructive possession. See State v. Jenks (1991),61 Ohio St. 3d 259, 272-73. {¶ 13} Officer Matthew Beech testified on behalf of the State at trial. Officer Beech testified that he inspected his cruiser prior to starting his shift on June 20, 2006. He stated that nothing was in the back seat except some trash, which he and his partner discarded before they went out on patrol. Officer Beech testified that the back seat of the cruiser is a one-piece fiberglass unit and there are no cushions under which to hide contraband. Officer Beech further testified that it is impossible to put something under the seat. {¶ 14} In response to a domestic call, Officer Beech and his partner, Officer Brian Stevens, went to an apartment located at 722 Westerly, in Akron. Officer Beech testified to the following events upon arrival at the scene. When Officer Beech and his partner arrived on the scene, they discovered that Mr. Smith had an outstanding warrant for failure to pay child support. After placing Mr. Smith under arrest, he was removed from the apartment and placed in the back of the cruiser. Officer Beech also testified that Mr. Smith was the first person that was placed in the back of the cruiser that night. Before removing Mr. Smith from the *Page 7 house, Officer Beech patted him down to check for weapons or contraband. Officer Beech called for a paddy wagon to come and get Mr. Smith. While Mr. Smith was in the back of the cruiser, he continued to yell at the woman who called the police, spit on the window, and attempted to kick out the window. When the wagon arrived, he and his partner removed Mr. Smith from the cruiser and placed him in the wagon. As they were removing Mr. Smith from the cruiser, Officer Beech observed a white lump on the floor of the cruiser. Officer Beech walked Mr. Smith half way to the paddy wagon and returned to the cruiser while his partner secured Mr. Smith in the wagon. {¶ 15} When he went back to the cruiser, Officer Beech found a clear plastic baggie containing what was later determined to be 123.23 grams of powder cocaine in plain view on the floor board of the cruiser where Mr. Smith had been sitting. {¶ 16} Officer Stevens also testified on behalf of the State and corroborated Officer Beech's testimony. With regards to questions by Mr. Smith's attorney as to why the cocaine was not found during Officer Beech's search of Mr. Smith, Officer Stevens responded that he was aware of cases in which a detainee was in possession of drugs, but the drugs were not found or were missed during an initial search. {¶ 17} Mr. Smith testified on his own behalf at trial. Mr. Smith testified that he came down the stairs wearing only a pair of shorts when the officers first *Page 8 entered the apartment. Mr. Smith stated that he later put a shirt on that was lying on the couch and eventually put his socks and shoes on. Mr. Smith testified that the only thing he had in his pockets was $12. Mr. Smith denied ownership of the cocaine that was found in the cruiser. Mr. Smith also denied kicking Officer Beech. {¶ 18} In this case, the jury heard testimony from several witnesses, including testimony from Mr. Smith that conflicted with the testimony of the State's witnesses. "[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts."State v. DeHass (1967), 10 Ohio St. 2d 230, at paragraph one of the syllabus. The trier of fact is in the best position to judge the credibility of the witnesses. In the present matter, the jury believed the testimony of the State's witnesses. {¶ 19} Given the testimony of Officers Beech and Stevens, the jury could have found that Mr. Smith constructively possessed the cocaine that Officer Beech found in the cruiser. Therefore, this Court cannot conclude that the jury clearly lost its way when it convicted Mr. Smith of possession of cocaine. Resisting Arrest {¶ 20} Mr. Smith was also convicted of resisting arrest, a violation of R.C. 2921.33(B), which states: "[n]o person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or another person and, during the course of or as a result of the resistance or interference, cause physical harm to a *Page 9 law enforcement officer." R.C. 2901.01(A)(3) defines "physical harm to persons" as "any injury, illness, or other physiological impairment, regardless of its gravity or duration." {¶ 21} Mr. Smith argues that because the ambulance was called to treat him and only him after he had been placed under arrest, the evidence was insufficient to support his conviction for resisting arrest. However, at trial, both Officer Beech and Officer Stevens testified that Mr. Smith continuously tried to pull away when they were taking him from the apartment to the cruiser. Officer Beech testified that after about four or five times of Mr. Smith's pulling away and his straightening him out, Mr. Smith kicked him in his right knee. At that point, Mr. Smith was struck by Officer Stevens and taken to the ground in order to get him under control. R.C. 2921.33(B) does not require that the officer seek medical treatment in order for a person to be found guilty of resisting arrest. This Court finds that the trial court did not err in convicting Mr. Smith of resisting arrest. {¶ 22} Having disposed of Mr. Smith's challenge to the weight of the evidence, we similarly dispose of his sufficiency challenge. SeeRoberts, supra. Mr. Smith's assignments of error are overruled. III. {¶ 23} Mr. Smith's assignments of error are overruled. The decision of the Summit County Court of Common Pleas is affirmed. Judgment affirmed. *Page 10 The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. SLABY, P. J. MOORE, J. CONCUR. (Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Article IV, Constitution.) *Page 1

2016-07-06 06:42:26.117797+00

OPINION {¶ 1} Appellant, Wendy Cutright, appeals the September 25, 2003 judgment entry of the Portage County Court of Common Pleas, Juvenile Division, in which the trial court terminated the case and ordered that all further proceedings be commenced in case number 2003 JCF 00276. {¶ 2} This situation involves the termination of parental rights. The trial court denied the motion of appellee, the Portage County Department of Job and Family Services ("PCDJFS"), to grant it permanent custody of Brianna Snow ("Brianna") on July 7, 2003. A review hearing was held on August 7, 2003, and on August 12, 2003, the magistrate determined that the temporary custody case should be terminated. The magistrate made no other dispositional ruling regarding Brianna since the termination case was on appeal before this court. Appellant filed objections to the magistrate's decision on August 27, 2003.1 Appellant claimed that the trial court erred by not issuing an order terminating the case and returning the child to her legal custody. Appellee filed a response to the objections and a motion to dismiss arguing that the objections were not timely filed. {¶ 3} In an entry dated September 25, 2003, the trial court overruled appellant's objections since the PCDJFS was denied permanent custody of Brianna. The trial court explained that the matter was currently on appeal before this court. Thus, the trial court adopted the magistrate's decision and terminated the case as a matter of law. The trial court also ordered that all further proceedings were to be commenced in case number 2003 JCF 00276. Appellant timely filed the instant appeal and now raises a single assignment of error: {¶ 4} "The trial court erred in denying the [m]otion for [d]isposition for the trial court had the jurisdiction to enter that order even after the sunset date and, since the [m]otion for [p]ermanent [c]ustody had been denied, the only appropriate order was to return the child to the mother." {¶ 5} Under her lone assignment of error, appellant claims that the trial court erred because it did not issue a dispositional order requiring that the child be returned to her since the PCDJFS's motion for permanent custody had been denied and the sunset date had passed. {¶ 6} Preliminarily, we note that in In re Snow, 11th Dist. No. 2003-P-0080, we are affirming the trial court's decision to deny the PCDJFS's motion for permanent custody. {¶ 7} Furthermore, as explained by Giannelli and Yeomans, Ohio Juvenile Law (2003 Edition) 409, Section 34:4: {¶ 8} "it is not necessary that the dispositional order be final in all respects in order to permit appeal. The Ohio Supreme Court has determined that `the question of whether an order is final and appealable turns on the effect which the order has on the pending action rather than the name attached to it, or its general nature.' [In re Murray (1990), 52 Ohio St. 3d 155, 157.] * * *." {¶ 9} Based on the record in this case and the foregoing analysis, we conclude that the dispositional order in which the trial court denied permanent custody of Brianna to appellee was a final appealable order. See, generally, State ex rel. Papp v.James (1994), 69 Ohio St. 3d 373. {¶ 10} However, it is our determination that the trial court erred because it failed to further order the return of Brianna to appellant in conjunction with its termination of the case. Specifically, the trial court did not expressly order that the child be returned to appellant. {¶ 11} For the foregoing reasons, appellant's sole assignment of error has merit. The judgment of the Portage County Court of Common Pleas, Juvenile Division, is reversed, and the case is remanded for further proceedings consistent with this opinion. Christley and O'Neill, JJ., concur. 1 Appellee filed objections to the magistrate's decision on August 21, 2003. Appellee later withdrew its objections on August 27, 2003, the day appellant filed her objections.

2016-07-06 06:42:26.271347+00

OPINION {¶ 1} Appellant, City of Columbus, filed this appeal seeking reversal of a decision by the Franklin County Municipal Court dismissing two counts of operating a vehicle while under the influence of alcohol ("OVI"). For the reasons that follow, we reverse. {¶ 2} On May 8, 2006, appellee, Terry L. Rose ("appellee") was charged with two counts of OVI in the City of Columbus. Appellee's arraignment was held on May 16, 2006, at which time appellee made a motion to dismiss the charges due to the failure to provide an initial appearance within five days of the charges being filed, as required by R.C.4511.191 and 4511.196. Apparently, there was some confusion on the part of the assigned prosecutor as to whether appellee's motion sought dismissal of only the administrative license suspension ("ALS") imposed at the time appellee was charged, or of the underlying criminal charges as well. The trial court granted appellee's motion to dismiss, and clarified that the dismissal was of both the ALS and the underlying criminal charges. {¶ 3} Appellant filed this appeal, alleging as its sole assignment of error that: The trial court erred as a matter of law in dismissing a criminal OVI charge under the authority of a remedial statute dealing with civil sanctions. {¶ 4} Ohio's OVI statutory framework includes some provisions that are criminal in nature, and others that are civil in nature. The criminal aspects encompass the charge itself and the criminal penalties to be imposed, which are set forth in R.C. 4511.19.1 Other aspects, including the ALS imposed at the time a person is charged with OVI, are civil and remedial in nature. State v. Gustafson (1996),76 Ohio St. 3d 425, 668 N.E.2d 435. The Ohio Supreme Court has emphasized this duality in a number of cases involving the interplay between the criminal OVI charge and the ALS. See, e.g., State v. Uskert (1999),85 Ohio St. 3d 593, 709 N.E.2d 1200 (reinstatement fee imposed as part of ALS does not constitute double jeopardy barring criminal charge of OVI); State v.Williams (1996), 76 Ohio St. 3d 290, 667 N.E.2d 932 (criminal prosecution for OVI not barred on res judicata grounds where ALS was dismissed at initial appearance). {¶ 5} The statutory provision regarding the initial appearance is set forth in R.C. 4511.191 and repeated in R.C. 4511.196. Each section provides that, when a person is charged with a violation of R.C. 4511.19 or an equivalent municipal OVI ordinance, "the person's initial appearance on the charge resulting from the arrest shall be held within five days of the person's arrest or the issuance of the citation to the person." R.C. 4511.191(D)(2), and 4511.196(A). Neither section sets forth any remedy for the failure to hold the initial appearance within the five-day timeframe. {¶ 6} It is clear that R.C. 4511.191 and 4511.196 are related solely to the civil and remedial aspects of the OVI statutory framework, and not the criminal aspects. The purpose for requiring the initial appearance to be held within five days is to provide the person with an opportunity to appeal the ALS. In fact, an ALS appeal is untimely unless made at the initial appearance, or within thirty days of the initial appearance. R.C. 4511.197(A). {¶ 7} Here, the trial court essentially treated the five-day requirement for holding the initial appearance as a speedy trial right requiring dismissal of the criminal charges, a result supported by neither the speedy trial statutes (R.C. 2945.71 through 2945.73) nor R.C. 4511.191 and 4511.196. In reaching this result, the trial court improperly conflated the civil and remedial nature of the ALS appeal called for by the OVI statutory framework with the criminal aspects of that framework. {¶ 8} Consequently, we reverse the trial court's decision dismissing the criminal OVI charges against appellee, and remand this matter to the trial court for further action consistent with this opinion. Judgment reversed and cause remanded. BROWN and WHITESIDE, JJ., concur. WHITESIDE, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution. 1 In this case, appellee was not charged with a violating R.C.4511.19, but rather with violating the equivalent provisions of the Columbus City Code. This distinction does not affect the applicability of the provisions governing the ALS.

2016-07-06 06:42:26.301137+00

JOURNAL ENTRY AND OPINION The appellant, Fortney Weygandt, Inc., appeals the decision of the trial court in denying its motion to stay the complaint and refer the claims to arbitration, pursuant to R.C. 2711.02. For the reasons set forth below, we affirm the decision of the trial court. Fortney Weygandt, Inc. is a commercial construction contractor in North Olmsted, Ohio, that serves as a general contractor in public and private commercial construction projects throughout the United States. The appellee, Christine Strasser, began her employment with Fortney Weygandt in 1999. Strasser eventually attained the role of project manager for Fortney Weygandt's role out division. On or about September 29, 2000, Strasser was terminated from her position with Fortney Weygandt. At that time, she was one of only two female project managers in the company. She contends that she received disparate treatment from her employer after she began questioning why she was not treated the same as her male counterparts, thereby rendering her a victim of sexual discrimination. Strasser filed a complaint alleging employment discrimination based upon sexual discrimination and failure by the appellant to provide her with pay equal to that of the male project managers. The appellant then filed a motion to stay or, in the alternative, motion for summary judgment, claiming that Strasser's cause of action is subject to the company grievance and arbitration procedure: E. Grievance/ Arbitration 1. Grievances over benefits, hours or other terms and conditions of employment should be taken up with your immediate supervisor. If your grievance is not satisfactorily resolved, please discuss with Chris Gray. 2. Any dispute, claims or controversy which may arise with regard to an employee's employment by the Company, including any claim alleging discrimination based on age, sex, color, race, creed, national origin, religious persuasion, union affiliation, or disability, or in violation of Ohio law, shall be subject to and fully settled by mandatory and binding arbitration administered by the American Arbitration Association in accordance with the AAA National Rules for the Resolution of Employment Disputes. The Arbitrator shall have authority to award any remedy that an Ohio or federal court or Ohio or federal agency could award or grant in a similar dispute. In any such arbitration proceeding, the employee shall have the right to be represented by a spokesman of his/her choosing. The arbitrator shall have the authority to award the employee reimbursement of some or all of the attorneys fees and other costs expended, if successful. On April 17, 2001, the trial court denied the appellant's motion for stay. It is from this order that appellant now appeals asserting the following assignment of error: THE TRIAL COURT ERRED BY DENYING DEFENDANT FORTNEY WEYGANDT, INC.'S MOTION TO STAY OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT IN THAT PLAINTIFF'S CLAIMS ARE SUBJECT TO A MANDATORY AND BINDING ARBITRATION PROCEDURE AGREED ON BY PLAINTIFF DURING HER EMPLOYMENT WITH DEFENDANT. The appellant maintains that Strasser's claims in the complaint are subject to the mandatory and binding arbitration proceeding agreed to by her upon receipt of the company handbook. Therefore, the appellant argues, the trial court erred when it failed to stay her claims. Under R.C. 2711.02, when a court is presented with a motion to stay court proceedings and submit a claim to arbitration, the court must make a determination that the matters involved in the complaint are subject to the arbitration agreement in question. McGuffey v. Lenscrafters, Inc. (2001), 141 Ohio App. 3d 44; see also Cross v. Carnes (1998),132 Ohio App. 3d 157. The standard of review that this court must apply to the trial court's determination is whether or not the actions constituted an abuse of discretion. Sikes v. Ganley Pontiac Honda (Sept. 13, 2001), Cuyahoga App. No. 79015, unreported, 2001 Ohio App. LEXIS 4065. According to R.C. 2711.02, the trial court must review materials outside of the pleadings to determine if the claims are subject to arbitration. Therefore, the actions of the trial court do not raise the level of this court's review to that of a motion for summary judgment. We note at the outset that the law in Ohio is well settled that in the absence of facts showing the presence of an employment agreement for a specified term, the employment relationship is terminable at will by either party. See Mers v. Dispatch Printing Co. (1985), 19 Ohio St. 3d 100, paragraph one of the syllabus; Henkel v. Educational Research Council of America (1976), 45 Ohio St. 2d 249, syllabus. However, the Ohio Supreme Court has created two exceptions to the employment-at-will doctrine: (1) the existence of promissory estoppel where certain representations or promises have been made to an employee; and (2) the existence of implied or express contractual provisions which have the effect of altering the terms and conditions of employment or discharge. Root v. PCC Airfoils, Inc. (Oct. 1, 1998) Cuyahoga App. Nos. 73149, 73150, 73151, 73402, 73403, 73404, unreported, 1998 Ohio App. LEXIS 4652, at 16-17, citing Mers at 104-105. In this case, the issue centers around the terms of an arbitration agreement and disclaimer found within an employee handbook. Although employee handbooks, policy manuals, and the like are not contracts of employment, they may define the terms and conditions of an employment relationship if the employer and employee manifest an intention to be bound by them. Winter-Jones v. Fifth Third Bank (May 27, 1999), Cuyahoga App. No. 75582, unreported, 1999 Ohio App. LEXIS 2410, at 2, citing Finsterwald-Maiden v. AAA S. Central Ohio (1996), 115 Ohio App. 3d 442. This court has found in Root: Generally, employee handbooks and statements of policy will not affect the employment-at-will rule. Under the implied contract exception, `a handbook may be found to alter the terms of employment at will only if the employee and employer have agreed to create a contract from the writing.' Latimore-Debose v. BVM, Inc., 1996 Ohio App. LEXIS 1425, *7 (April 4, 1996), Cuyahoga App. No. 69439, unreported. In the absence of mutual assent, a handbook is merely a unilateral statement of rules and policies which creates no rights and obligations * * *. Id.; see also Manofsky v. Goodyear Tire Rubber Co. (1990), 69 Ohio App. 3d 663, 671, 591 N.E.2d 752. Most importantly for the case at hand, where a handbook contains a disclaimer, absent fraud in the inducement, the disclaimer precludes the use of the handbook to demonstrate an implied contract. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, 110. * * * Absent fraud in the inducement, a disclaimer in an employee handbook stating that employment is at will precludes an employment contract other than at will based upon the terms of the employment handbook. See Tohline v. Central Trust Co. (1998), 48 Ohio App. 3d 280. Id. at 19. In this case, the appellant's handbook contained the following disclaimer: The policies, practices, and benefits expressed in this handbook are those currently in effect as of the date of your hire. The policies described in this handbook are not conditions of employment, nor does this handbook create a contract of employment between the Company and you. Because the continued success of ours, or any company requires the ability to change and adapt to the times, these policies, practices, and benefits may be suspended, modified, or canceled, without advanced notice. No modification or cancellation of any of the provisions in this handbook will occur unless in writing and signed by an officer of the Company. Should the Company determine that changes are required, we will make every effort to contact you as soon as practical, in writing, with details on the new policy. It is hoped that any modifications, which do occur will work for the betterment of both you and the company. Although it is our hope that every employee will find a home here, we know that it is not always possible. You should understand that employment at the company is not offered, contracted, or promised for any specific length of time. If at any time you are not fully satisfied, you may terminate your employment. Just as you will be free to terminate your employment at any time for any reason, the Company reserves the right, on the same basis, to terminate employment. Therefore, the employer's use of a disclaimer contained in its employee handbook precludes the use of the handbook as an implied contract. The disclaimer specifically states that the policies in the handbook do not create a contract of employment and that employment at the company remains an "at-will" status. In addition, the very nature of the disclaimer itself leads to the conclusion that the employer did not manifest an intention to be bound by the handbook provisions. The provisions of an employee handbook may alter the terms of an at-will employment relationship if the employer and employee manifest an intention to be bound by the handbook provisions. Keaton v. Pike Community Hospital (Jan. 27, 1997), Pike App. No. 96CA579, unreported, 1997 Ohio App. LEXIS 346, at 8, citing Sowards v. Norbar, Inc. (1992), 78 Ohio App. 3d 545, 549. In Keaton, the appellant appealed her termination based upon her employer's breach of contract and sexual discrimination. The court determined that merely signing an acknowledgment that the appellant had received the new handbook did not make the handbook binding on either party. In addition, the trial court found that because the language of the handbook left the hospital the ability to change the policies set forth in the book, this failed to show mutual assent under the terms of the handbook. Id. at 11-12. In another case similar to the one at bar, Trumbull v. Century Marketing Corp., 12 F. Supp. 2d 683 (1998), the court determined that an employee handbook containing an arbitration clause did not constitute a binding contract. In that case, the employer distributed an employee handbook with the following disclaimer: The company may modify, augment, delete, or revoke any and all policies, procedures, practices, and statements contained in this handbook at any time, without notice. The court determined that to give effect to this language and hold that a valid contract exists would be to create a contract where only one party is bound. The plaintiff would be bound by all the terms of the handbook while defendant could simply revoke any term (including the arbitration clause) whenever it desired. Without mutuality of obligation, a contract cannot be enforced. Id. at 686, citing Thomas G. Snavely Co. v. Brown Construction Co., (C.P. 1969), 16 Ohio Misc. 50, 239 N.E.2d 759. The court included in its reasoning that the placement of the arbitration clause and its provisions filled less than two pages of a sixty-page handbook, and the clause was not set apart from the rest of the text in any fashion that would allow someone to conclude that they were giving away any legal rights. Id. at 12-13. In a similar fashion, this court dealt with the issue of an employee handbook, distributed to employees, discussing a range of topics including a new program of dispute resolution within the company. In Harmon v. Philip Morris Inc. (1997), 120 Ohio App. 3d 187, the trial court granted the motion of Philip Morris to compel the arbitration of an employee's claims of wrongful discharge, breach of contract, defamation and racial discrimination. Philip Morris argued that since the employee signed the acknowledgment stating that he had received and understood the foregoing documents, he must therefore be held to the terms of the handbook and is compelled to take his grievances to arbitration. This court determined that the handbook was offered with no consideration for modification. Philip Morris demanded that the employee sign the acknowledgment, and failure to do so would result in the employee's termination. As for the signed acknowledgment, this court stated that we conclude that the signed acknowledgment by Harmon does not constitute acceptance of an offer to modify the terms of his employment. He merely acknowledged his receipt and understanding of the items presented to him. He never expressed assent to those terms. Id. at 7. This court therefore reversed the decision of the trial court in ordering the use of arbitration for the appellant's claims. In the case at bar, the appellant distributed a forty-seven-page employee handbook which included, on page 16, the grievance/ arbitration procedures. The arbitration procedure takes up less than half a page of the forty-seven-page handbook. This section is not bold faced; it is not distinctively marked, except for E. Grievance/Arbitration, which is the same font size as the rest of the handbook. In addition, the disclaimer presented in the handbook left the employer with total discretion to alter or modify the arbitration process, with notice as soon as practical to the employees. An employee cannot be held to accept the guidelines of a handbook that an employer is not bound to keep. The trial court did not abuse its discretion in denying the appellant's motion to stay the proceedings pending arbitration of the employee's claims. It is ordered 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 Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., AND COLLEEN CONWAY COONEY, J., CONCUR.

2016-07-06 06:42:26.399524+00

OPINION Appellant Leonard Resar is appealing his conviction, in the Ashland Municipal Court, for one count of illegal breath/alcohol concentration in violation of R.C. 4511.19(A)(3). The following facts give rise to this appeal. On June 11, 1996, Trooper Jeff Carpenter, of the Ashland Post of the State Highway Patrol, observed a non-operational tail light on appellant's pick-up truck. The trooper turned around his vehicle and began following appellant. As appellant's pick-up truck passed the merge lane to exit Route 42 and enter U.S. 250, one-half the width of appellant's pick-up truck entered the merge lane for two to three seconds. The trooper then observed appellant abruptly swerve into the northbound lane of Route 42. After observing this behavior, the trooper activated his lights and stopped appellant. As a result of the traffic stop, the trooper cited appellant for illegal breath/alcohol concentration, driving under the influence of alcohol and/or drugs, driving under FRA suspension and no seat belt. Appellant entered a plea of not guilty to these charges and filed a motion to suppress. The trial court conducted a hearing on appellant's motion on July 15, 1996. Following the hearing, the trial court overruled appellant's motion on July 22, 1996. The trial court conducted a hearing on appellant's motion to reconsider on September 17, 1996, and again overruled appellant's motion to suppress on September 18, 1996. On October 15, 1996, appellant plead no contest to a violation of R.C. 4511.19(A)(3). The remaining charges were nollied. The trial court sentenced appellant to imprisonment for one year, with all but thirty days suspended, and imposed a $750 fine, suspended appellant's operator's license for two years and placed appellant on probation for two years with an alcohol assessment required. Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN OVERRULING THE MOTION TO SUPPRESS AND THE MOTION TO RECONSIDER WHEN THERE WAS NO REASONABLE SUSPICION WITH SPECIFIC AND ARTICULABLE FACTS OF CRIMINAL ACTIVITY. II. THERE WAS NO REASONABLE SUSPICION WITH SPECIFIC ARTICULABLE FACTS OF CRIMINAL ACTIVITY WHEN THE STATE HIGHWAY TROOPER OBSERVED THE MOVEMENT OF TWO AND ONE-HALF FEET INTO AN UNMARKED EXIT RAMP LANE FOR TWO SECONDS WITHOUT A SIGNAL AND THEN RETURN TO THE ORIGINAL LANE WHEN THE OFFICER WAS 150 FEET BEHIND THE VEHICLE AT NIGHT. I, II We will address both of appellant's assignments of error simultaneously as both concern whether Trooper Carpenter had a reasonable suspicion, based upon specific and articulable facts, to stop appellant's vehicle. As an appellate court, when reviewing the trial court's decision to suppress evidence, we are guided by the Ohio Supreme Court's ruling in State v. Smith (1991), 61 Ohio St. 3d 284 andState v. Fanning (1982), 1 Ohio St. 3d 19. Pursuant to these cases, it is well settled law that "[a]t a suppression hearing the evaluation of evidence and the credibility of witnesses are issues for the trier of fact." Smith at 288, citing Fanning at 20. We are therefore required to accept the trial court's findings of fact if they are supported by competent, credible evidence. Statev. Klein (1991), 73 Ohio App. 3d 486, 488. It is based upon this standard that we review the trial court's decision overruling appellant's motion to suppress. In its judgment entry of July 22, 1996, the trial court found that Trooper Carpenter observed conduct which would constitute a traffic violation, either a lane change violation or a failure to indicate a turn. Pursuant to the judgment entry, the trial court did not find a reasonable and articulable suspicion based upon a tail light violation, even though the BMV form 2255 charged appellant with a tail light violation. Therefore, we will not address the issue concerning a tail light violation on appeal. Instead, the trial court found a reasonable and articulable suspicion due to either a lane violation or a failure to indicate a turn. Since Trooper Carpenter did not charge appellant with failure to indicate a turn, it cannot be the reasonable and articulable suspicion upon which he stopped appellant's vehicle. Thus, we are left with the lane violation under R.C. 4511.33. Trooper Carpenter testified, at the suppression hearing, as follows: A. As I caught up to him, he was approaching — there was like a ramp if you want to go on 250 eastbound, he made no signal to turn but his vehicle drifted over as if he intended to get off at that exit. He got about half of his vehicle onto the exit and then abruptly came back, swerved it back onto 42. Q. So what then did you do? A. At that time as soon as I saw him do that, I activated my overhead lights and stopped him. Tr. Suppression Hrng., July 15, 1996, at 6. Trooper Carpenter also testified to the movement as follows: Q. All right. And describe again the manner in which he came back onto the traveled portion of 42? (sic) A. It was an abrupt movement back, he drifted onto the ramp, normally — at that time I believe he was, he was going to go onto the ramp, and then just, he swerved back suddenly back onto 42 like he either had changed his mind or was confused about whether or not he was supposed to go that way. Tr. Suppression Hrng., July 15, 1996, at 7-8. Finally, Trooper Carpenter testified to the length of time appellant was on the exit ramp before he swerved back onto Route 42. Q. With regard to his getting onto this ramp and then getting off, how long would you say he was on the ramp? A. I'd say about two to three seconds, maybe two seconds. Tr. Suppression Hrng., July 15, 1996, at 10. It is well settled law in Ohio that reasonable and articulable suspicion is required for an officer to make a warrantless stop. Terry v. Ohio (1968), 392 U.S. 1. "Probable cause to arrest a suspect for driving under the influence is not necessary in order to stop a vehicle for suspected criminal activity." State v. Brandenburg (1987), 41 Ohio App. 3d 109, 110. The reasonable and articulable standard is a lesser standard and not synonymous with the probable cause standard needed to place a person under arrest. Delaware v. Prouse (1979), 440 U.S. 648. We find, based upon the above standard and the testimony presented at the suppression hearing, that Trooper Carpenter did not have a reasonable and articulable suspicion to stop appellant. First, approximately half of appellant's pick-up truck, two and one-half feet, drifted onto the exit ramp. In doing so, appellant did not cross a marked lane as there is no line delineating between the roadway and the exit ramp. For a violation of R.C.4511.33 to occur, a person must cross "clearly marked lanes for traffic". Second, according to Trooper Carpenter's own testimony, this abrupt swerve only lasted about two to three seconds. Trooper Carpenter also testified that when he saw appellant swerve back onto Route 42, he thought appellant either changed his mind or was confused about whether or not he was supposed to go that way. Tr. Suppression Hrng., July 15, 1996, at 7-8. Third, we find this case differs factually from other cases from this district in that Trooper Carpenter only observed one movement, appellant swerving onto the exit ramp and back onto Route 42, before he activated his lights and stopped appellant. In other cases where we have found a reasonable and articulable suspicion to justify a stop, the law enforcement official observed driver's conduct that involved swerving over the center line and/or over the line on the right side of the road. The law enforcement official observed more than merely one swerve or drift. See City of Bellville v. Mabee (March 7, 1997), Richland App. No. 96 CA 53, unreported; State v. Kinsey (Dec. 23, 1996), Stark App. No. 1995CA00312, unreported; State v. Berry (Dec. 19, 1996), Delaware 95CAC04022, unreported; State v. Young (Dec. 2, 1996), Stark App. No. 95-CA-211, unreported; State v. Nutter (Oct. 30, 1996), Licking App. No. 95 CA 30, unreported; State v.Copinski (Oct. 21, 1996), Stark App. No. 96-CA-0032, unreported;State v. Pennington (May 14, 1996), Richland App. No. 95-CA-71, unreported; State v. Powers (March 26, 1996), Fairfield, App. No. 95-CA-30; State v. Glenn (Dec. 4, 1995), Licking App. No. 95-CA-37, unreported; State v. Ute (May 12, 1993), Richland App. No. 92-CA-78, unreported. Had Trooper Carpenter continued to follow appellant and noticed appellant swerving between the center line and the line on the right side of the road or observed him crossing the center line or the line on the right side of the road, this case would present a different factual situation. However, when a law enforcement official observes a driver swerve onto an exit ramp, which is not a marked lane of travel, for two or three seconds, and again enter the road upon which he or she was traveling, we find such conduct, alone, does not establish a reasonable and articulable suspicion which can be the basis for a valid traffic stop. Appellant's first and second assignments of error are sustained. For the foregoing reasons, the judgment of the Ashland Municipal Court, Ashland County, Ohio, is hereby reversed and remanded for further proceedings consistent with this opinion. By: Wise, J. Farmer, P. J., and Gwin, J., concur. For the reasons stated in the Memorandum-Opinion on file, the judgment of the Ashland Municipal Court of Ashland County, Ohio, is reversed and remanded for further proceedings consistent with this opinion.

2016-07-06 06:42:26.841275+00

JOURNAL ENTRY AND OPINION This is the fifth time this matter has been before this court. It involves an unorthodox and persistent series of proceedings against a former expert witness after the parties to the underlying litigation voluntarily settled their claims. The matter has generated more review and extraordinary actions within the original jurisdiction of this court than any in recent memory. Actions within the original jurisdiction of this court are rare, comprising, in all forms, fewer than ten percent of all cases filed. Actions seeking the extraordinary writ of prohibition are themselves a comparatively rare form of original action. Unlike appeals to review and correct error in proceedings, such actions concern basic jurisdiction to act and such writs are not routinely issued, even to prevent anticipated erroneous judgments. Not only are requests for such writs rare, but they are not frequently granted because of the stringent requirements governing their issuance. This matter can be put into perspective by recognizing that not only were three extraordinary writs of prohibition requested, but all three were granted. We have been compelled to invoke our sparingly exercised original jurisdiction and revisit this matter to countermand trial court orders with such frequency that such extraordinary writs have become ordinary. The appeal in the case at bar by the former expert witness, Robert Corn, M.D., and his professional corporation involves recurring claims that the trial court indiscriminately exceeded its jurisdiction, abused its contempt powers and the adversary process, and improperly interfered with their attorney-client relationship. The only Ohio case with a similar history and persistent refusal to put a matter to rest is State ex rel. Celebrezze, Jr. v. Ohio Fifth District Court of Appeals (1983), 5 Ohio St. 3d 1, which involved almost nine years of mandamus actions and appeals from an order requiring Canton to fluoridate its municipal water supply. Although the matter at bar pales in comparison, the IBM antitrust litigation provides perhaps the classic example of a similar trial court refusal to conclude the litigation. In Re IBM Corp. (2nd Cir. 1982), 687 F.2d 591 (granting writ of mandamus directing the trial judge to accept settlement by the parties and terminate litigation); In Re IBM Corp. (1995), 45 F.3d 641 (granting a writ of mandamus ordering the trial judge to recuse himself from further proceedings). This court has previously noted that the role of the [trial] court is to resolve the parties' disputes in a fair and equitable manner at a difficult time in their lives rather than embroiling them in further litigation. Oatey v. Oatey (1992), 83 Ohio App. 3d 251, 262. These cases stand as stark testament to the principle that judicial resources would be better employed if trial courts limit themselves to resolving the parties' claims within the traditional bounds of the adversary system. We believe, as the Supreme Court recognized in Celebrezze, supra, that enough is enough already. With any luck, this appeal will conclude this matter. The background facts, briefly summarized, are as follows: Appellants Dr. Corn and his professional corporation, Highland Musculo-Skeletal Assoc., Inc., perform medical services, including independent medical examinations to evaluate medical claims and injuries. This matter has arisen from two cases in which trial courts have ordered discovery of their federal income tax documents, patient records, and other financial information, ostensibly for purposes of cross-examination during litigation. Proceedings continued despite the fact that the underlying litigation was settled. Each of the cited cases can be consulted for further details. This court issued the first writ of prohibition in a case in which a trial judge took the unprecedented step of appointing a special master to conduct the investigation. State ex rel. Allstate Ins. Co. v. Gaul (1999), 131 Ohio App. 3d 419. This court held that neither the trial court nor the special master, Robert Housel, had jurisdiction to investigate appellants. This court specifically ordered that the material obtained by the special master be sealed and returned to Dr. Corn. Id. at 438. The second writ action arose after the special master was ordered to testify in a subsequent tort case concerning a similar discovery dispute. State ex rel. Corn v. Russo (1999), 133 Ohio App. 3d 57 (Russo I). This court granted a writ of prohibition to prohibit the special master and the trial judges in both cases from disclosing any information the special master obtained during his unlawful appointment. This court specifically ordered that the transcript of the special master's testimony at the September 28, 1998 contempt hearing be sealed. Id. at 65. Unbeknownst to this court when issuing this opinion, the parties had already voluntarily settled the underlying tort action. The third writ action arose after the parties filed a notice of voluntary dismissal with the trial judge, who refused to file it with the clerk and terminate the litigation after their settlement. State ex rel. Corn v. Russo (Nov. 24, 1999), Cuyahoga App. No. 76730, unreported (Russo II). This court granted a third writ of prohibition finding that the trial court lacked jurisdiction to conduct any further proceedings, including the contempt hearing. Cf. In Re IBM Corp. (2nd Cir. 1982),687 F.2d 591. During the course of this action, this court again sealed the transcript of the special master's testimony at the September 28, 1998 contempt hearing.1 In the appeal at bar, filed before the third writ action had been filed or decided, appellants argue the trial court improperly compelled them to execute Internal Revenue Service (IRS) tax information release forms, improperly unsealed the transcript of the special master's testimony at the September 28, 1998 contempt hearing, and improperly ordered their former counsel to testify in violation of their attorney-client privilege. No appellee's brief has been filed.2 I Appellants' first assignment of error follows: THE TRIAL COURT ERRED IN COMPELLING A NON-PARTY, EXPERT WITNESS TO EXECUTE INTERNAL REVENUE SERVICE FORMS RELEASING TAX RETURNS AND RETURN INFORMATION IN VIOLATION OF 26 U.S.C. § 6103. This assignment is overruled as moot. Appellants challenge the trial court's mandate, announced during the September 28, 1998 hearing, to complete IRS release forms that requested disclosure of tax returns and 1099 forms for a four-year period. Appellants argue the trial court's order violates a federal confidentiality statute, which provides generally that the IRS may not disclose federal tax return information except to taxpayers or their designees, or to state taxing authorities and federal agencies under limited circumstances. 26 U.S.C. § 6103. Because the court is not a taxing authority, appellants argue the court improperly compelled the disclosure, so the completed forms should be returned. A review of the record and applicable federal regulations implementing the statute reveals that these arguments are moot.26 C.F.R. 301.6103(c)-1(a)(4) provides in pertinent part as follows: The disclosure of a return or return information authorized by a request for or consent to the disclosure shall not be made unless the request or consent is received by the [Internal Revenue] Service within 60 days following the date upon which the request or consent was signed and dated by the taxpayer. (Emphasis added.) Because more than 60 days have elapsed since appellants completed the forms on September 28, 1998, applicable regulations state that disclosure of the information sought shall not be made. Because of the lapse of time, the documents are no longer effective to constitute a valid request for information. We decline appellants' request to issue a blanket statement that state trial courts are categorically prohibited from ordering disclosure of IRS tax return information. Although there is a public policy that disfavors disclosure of tax return information, in appropriate cases courts may order taxpayers to produce information they possess or to complete information request forms when the information is relevant to the litigation. See 6 Moore's Federal Practice, Sections 24.41[3][b] and 26.52[6][a]. Caselaw recognizes, however, that the standard of relevance for discovery from persons who are not parties to the litigation is more rigorous than when such information is sought from parties. E.g., Katz v. Batavia Marine Boating Supplies, Inc. (Fed. Cir. 1993), 984 F.3d 422. We share appellants' concern that the trial court did not adequately consider these principles before compelling them to complete the request forms in the case at bar and have disapproved of the court's independent investigatory practices in our prior cases. Under the circumstances, because the documents are no longer effective to constitute a valid request for information under federal regulations, however, no further relief is necessary. Accordingly, appellants' first assignment of error is overruled as moot. II Appellants' second assignment of error follows: THE TRIAL COURT ERRED IN ISSUING AN ORDER UNSEALING THE ENTIRE TRANSCRIPT OF THE SEPTEMBER 28, 1998 HEARING, INCLUDING THAT PORTION OF THE TRANSCRIPT WHICH WAS SEALED BY THIS COURT OF APPEALS' JOURNAL ENTRY AND OPINIONS IN CASE NOS. 75349 AND 75048. This assignment is overruled. Appellants argue that the trial court improperly unsealed the transcript of testimony given by special master Robert Housel in the September 28, 1998 contempt hearing. They request this court vacate the trial court's June 11, 1999 order unsealing this testimony. Under the circumstances, however, the record shows this argument has become moot because this court already resealed the Housel testimony in the third writ action. Moreover, even if the argument were not moot, appellants have failed to show any resulting prejudice. As noted above, this court has held that Housel never should have been appointed special master, never should have collected any financial or other information concerning appellants in that capacity, and never should have testified concerning this matter. The sealing and unsealing of these materials has plagued this matter ever since. In the first writ action, this court specifically ordered that the material obtained by the special master be sealed and returned to Dr. Corn. State ex rel. Allstate Ins. Co. v. Gaul, 131 Ohio App.3d at 438. The special master was subsequently ordered to testify at a September 28, 1998 contempt hearing in a separate tort action before a different judge. Appellants challenged this order in the second writ action after the testimony had already occurred. On October 13, 1998, the trial court ordered a copy of the transcript and entered an order sealing the record as follows: COURT SEALS ANY AND ALL DOCUMENTS RELATED TO THE SHOW CAUSE HEARING OF 9/28/98 AND ORDERS THE COURT REPORTER TO SEAL THE ORIGINAL TRANSCRIPT AND TO REFUSE ANY REQUEST FOR TRANSCRIPT WITHOUT PRIOR ORDER OF THIS COURT. On June 4, 1999, this court issued its opinion in the second writ action, which found inter alia that the trial court had jurisdiction over the contempt proceedings, and concluded as follows: The transcript of the testimony of respondent Housel, as taken at the contempt hearing of September 28, 1998, is ordered sealed. State ex rel. Corn v. Russo, 133 Ohio App.3d at 65. On June 11, 1999, the trial court reinstated the contempt matter to its active docket, however, and entered, inter alia, the following order: PURSUANT TO THE RULING BY THE COURT OF APPEALS, THE COURT VACATES ITS ORDER SEALING THE TRANSCRIPTS IN THIS MATTER AS CONTAINED ON THE DOCKET ON 10/13/99 [SIC]. The parties thereafter voluntarily settled and dismissed their underlying tort claims on or about July 2, 1999. Five days thereafter, the trial court clarified its order unsealing the transcripts, stating as follows: COURT CLARIFIES ITS ORDER TO STATE THAT THE CT VACATES ITS PRIOR RULING SEALING THE TRANSCRIPTS OF THE HEARING HELD 9-28-98, EXCEPT THAT THE TRANSCRIPT OF TESTIMONY OFFERED BY ROBERT HOUSEL IS TO REMAIN SEALED. Appellants thereafter filed the third writ action. On July 23, 1999, the day the third writ action was filed, this court had to enter an order to obtain a copy of the transcript and again ordered that the transcript be sealed as follows: MOTION BY RELATORS TO FILE PARTIAL TRANSCRIPT UNDER SEAL IS GRANTED. IT IS FURTHER ORDERED THAT THE TRANSCRIPT OF THE TESTIMONY OF ROBERT V. HOUSEL AS TAKEN AT THE SHOW CAUSE HEARING OF SEPTEMBER 28, 1998, IN CASE NO. CV-345899, SHALL REMAIN UNDER SEAL AS DIRECTED IN THIS COURT'S JUNE 4, 1999, PERMANENT WRIT OF PROHIBITION ISSUED IN STATE EX REL. ROBERT CORN, M.D., ET AL. V. THE HONORABLE NANCY RUSSO, ET AL., CASE NO. 75349 [(1999), 133 Ohio App. 3d 57]. ANY CITATIONS, QUOTATIONS, OR OTHER REFERENCES TO THE SEALED TRANSCRIPT IN ANY PLEADING, MOTION, BRIEF OR OTHER FILING WITH THE COURT, IN THE COURSE OF THIS LITIGATION, ARE ALSO SEALED BY THIS ORDER. See State ex rel. Corn v. Russo, Cuyahoga App. No. 76730, Motion No. 08585 (July 23, 1999). In response to this entry, the trial court entered the following order: PURSUANT TO THE ORDER OF THE COURT OF APPEALS DATED 7-23-99, THIS COURT HAS PROVIDED COURT REPORTER SCOTT WALLACE WITH A COPY OF THE ORDER ISSUED REGARDING THE SEALING OF HOUSEL'S TESTIMONY. THIS COURT HAS DETERMINED THAT THE ONLY PERSON REQUESTING ANY COPY OF THE TRANSCRIPT OF THE HEARING ON 6-28-98 [SIC] WAS JOSEPH MELNIK, OF DR. CORN'S COUNSEL'S FIRM. NO OTHER REQUESTS HAVE BEEN MADE SINCE THE ORIGINAL SEALING. Finally, this court's merit opinion in the third writ, which found the trial court lacked any further jurisdiction after the parties dismissed the underlying tort claims, again sealed the record as follows: In the case of Crow v. Dotson, Cuyahoga County Court of Common Pleas Case No. CV-345899, respondent, Judge Nancy Russo, is hereby prohibited from conducting any further proceedings, including the contempt hearing against Dr. Corn. Documents previously ordered sealed in Corn v. Russo I [(1999), 133 Ohio App. 3d 57] and Allstate v. Gaul [(1999), 131 Ohio App. 3d 419] shall remain under seal in those cases. Documents submitted under seal in this case shall be resealed and remain under seal absent an order from this court. Id. at p. 8. Because this court has already resealed the Housel testimony after the trial court's June 11, 1999 order unsealing it, any claim of error is moot. Even if appellants' claim were not moot, however, the record fails to show any resulting prejudice. Appellants do not argue they suffered any prejudice and the record shows that the unsealed transcript of Housel's testimony was not disseminated to anyone other than appellants' counsel before it was subsequently resealed. If appellants seek any further redress, this court previously instructed them it would entertain an appropriate motion in State ex rel. Corn v. Russo, Cuyahoga App. No. 75349. See State ex rel. Corn v. Russo (Nov. 24, 1999), Cuyahoga App. No. 76730, unreported at p. 5.3 Accordingly, appellants' second assignment of error is overruled. III Appellants' third assignment of error follows: THE TRIAL COURT ERRED IN ORDERING APPELLANTS HIGHLAND MUSCULO-SKELETAL ASSOCIATES, INC. AND ROBERT S. CORN, M.D.'S FORMER ATTORNEY, DOUGLAS DIPALMA OF CAVITCH FAMILO, DURKIN AND FRUTKIN, TO TESTIFY IN VIOLATION OF THE ATTORNEY-CLIENT PRIVILEGE OF OHIO REVISED CODE SECTION 2317.02. This assignment is overruled. Appellants argue that the trial court improperly subpoenaed their former attorney Douglas DiPalma to testify at a continuation of the contempt hearing scheduled for October 13, 1998. Attorney DiPalma represented the appellants in the case at bar until September 29, 1998, the day after the contempt hearing commenced, when he and his law firm were disqualified by the trial court. DiPalma was disqualified because he was subpoenaed by the court to testify as a witness and produce documents at the continued contempt hearing. Appellants do not specifically challenge the disqualification in this appeal, but argue that the testimony and documents sought by the subpoena fell within the attorney-client privilege. As with the other assignments of error, appellants' challenge to the subpoena appears to be moot because the October 13, 1998, continuation of the contempt hearing never occurred. Proceedings in the third writ action prevented compliance with the order to appear on that date. Because more than two years have elapsed since that date, it is no longer possible to comply with the subpoena as issued. In any event, appellants have failed to show reversible error under the circumstances. Objections to the scope of material requested by a subpoena should be raised by a motion to quash the subpoena. Civ.R. 45(B). The proceedings on such a motion provide a basis to review any order concerning the scope of disclosure. Without any such motion asserting the attorney-client privilege, without any proceeding by trial court order adjudicating such claim, and with no testimony by counsel on the record, we have no basis to find that the trial court violated appellants' attorney-client privilege. R.C. 2317.02(A) specifically prohibits attorneys from testifying concerning privileged communications made to them by their clients absent waiver. Applying these principles in particular cases can be an involved process to determine whether the privilege applies and whether it was properly asserted and not waived. See e.g., State v. McDermott (1995),72 Ohio St. 3d 570 (the final in a series of three appeals arising from one criminal case). Appellants cite a prior appeal in McDermott, which held that the trial court erred by ordering an attorney to testify. State v. McDermott (1991), 73 Ohio App. 3d 689, 693. This case is distinguishable from the case at bar, however, precisely because the record in McDermottwas much more developed than in the case at bar. The trial court in McDermott held a hearing to determine whether to compel the attorney to testify, journalized a specific order concerning the scope of the attorney's proposed testimony, and held a subsequent contempt hearing against the attorney who refused to testify. Id. The case at bar contains no such proceedings, the record shows that attorney DiPalma was not called to testify, the hearing for which he was subpoenaed never took place, and no copy of the subpoena to him even appears in the record. While we agree that McDermott properly states the law and would not hesitate to apply its principles, we will do so only if the trial court compels privileged testimony. Appellants have not cited any authority that attorneys are exempt from subpoenas generally or from the need to properly litigate privilege claims in a particular case. Accordingly, appellants' third assignment of error is overruled. It is ordered that appellee(s) recover of appellant(s) 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. JOHN T. PATTON, J., CONCURS; LEO M. SPELLACY, J., CONCURS IN JUDGMENT ONLY. 1 This matter was before the court a fourth time in Guerrieri v. Allstate Ins. Co. (Sept. 2, 1999), Cuyahoga App. Nos. 73869, 73870, 75132 and 75133, unreported. In Guerrieri an insurer argued on direct appeal in an unrelated tort case that the first trial judge exhibited a pattern of bias by its ruling challenged in the first writ action and by excluding expert testimony of another Highland Musculo-Skeletal Assoc. physician. Id. at pp. 3-9. 2 An appeal from this third writ action is currently pending in the Ohio Supreme Court. We have jurisdiction over the orders challenged in this appeal, because it is separate from the pending writ appeal and because there is nothing left for the trial court to do as a result of our holding that it lacked further jurisdiction in the third writ action. Under the circumstances, even if the trial court had further jurisdiction, the challenged orders are final appealable orders denying provisional remedies. R.C. 2505.02(B)(4). 3 We have been reluctant to address an issue that has repeatedly been raised in the writ actions: that is, whether the trial court violated an order of this court through misconduct or mere legal error. On each occasion this court stated that the panel of this court that issued the order would entertain an appropriate motion to consider the matter. Because the third writ action has been appealed to the Supreme Court, this court and the panel that issued that opinion lack jurisdiction to address whether the trial court violated that writ and is in contempt for entering orders after this court stated it had no further jurisdiction whatsoever.

2016-07-06 06:42:25.469932+00

Ziegel

In December 1974, plaintiffs, having just moved to the Cincinnati area from Michigan, sought a five-to-seven acre tract of real estate upon which to build a home. In their search they were represented by realtor, Connie Charles, who located a parcel in which plaintiffs were interested upon which was a sign indicating that the property was being sold through the appellant, the Harold W. Hague Company (hereinafter "Hague"), with the agent in charge being the appellant, Shirley Aszman, who was working with her husband, Sandy Aszman (hereinafter "Aszman"). Plaintiffs were interested in the first parcel "next to the creek." The transaction was eventually completed, and plaintiffs received a deed and gave a mortgage as a part of their financing. A short time later plaintiffs had their contractor begin grading for their driveway and excavating for their basement, at which time they were advised that the work in progress was not being conducted on the land which they had purchased. The land described in their deed placed the creek essentially in the center of their property, not on the edge of it. On May 12, 1975, they brought action for damages against Aszman, Hague and others alleging that they had misrepresented the location of the real estate purchased. After one trial for which a motion for new trial was granted, the proceedings upon which this appeal is based were tried by a jury on February 4 and 5, 1980, with a verdict being rendered for plaintiffs against both Aszman and Hague for $15,000. The trial court reduced that verdict to $12,500 to conform to plaintiffs' demand for relief. Thereafter each of the above-named parties filed appropriate notices of appeal. The Aszman brief sets forth four assignments of error, and the Hague brief asserts six assignments of error. By way of cross-appeal, plaintiffs have asserted two assignments of error. The Aszman-Hague assignments of error will be discussed first. Facts pertinent to each assignment of error will be set forth in the discussion. I In the Aszman assignment of error three and the Hague assignment of error four, each contend that the trial court erred in permitting Connie Charles over objection to testify by way of an expert opinion as to the value of the property, each claiming that she was not qualified as an expert. As of the date she testified, Charles was a sales manager for Showcase Realtors, her employer, and she had been a licensed realtor and had been actively selling real estate since January 1974. While each of these appellants argue that such testimony is insufficient to qualify her as an expert witness for the purpose of testifying as to the value of *Page 66 real estate, it is interesting to note that Hague's own counsel called upon her for a valuation estimate. Generally, the ruling of a trial judge as to the qualifications of an expert witness is within the judge's sound discretion, which is conclusive unless it is clearly shown to be erroneous. 21 Ohio Jurisprudence 2d 431, Evidence, Section 422. Since the evidence did establish that Connie Charles had been in the business of selling real estate for more than six years at the time she testified, the trial judge had a sound basis for considering her to be qualified to give testimony as to real estate values. That the evidence did not show such things as how many times she had appraised property, etc., goes to the weight of her testimony, not to its admissibility. These assignments of error are held not to be well taken. II At the first trial of this case, one Robert White testified for Aszman and Hague. Since that time, he had retired from his position with the Warren County Health Department and was living in Florida. A transcript of testimony in the first case was proffered and refused. The trial court's refusal to accept such evidence is assigned as error number two by Aszman and number one by Hague. Aszman contends that R.C. 2317.06 allows earlier testimony of a witness beyond the court's jurisdiction to be taken into evidence. That section, as effective on May 23, 1980, the date of trial, provided in pertinent part: "When a party or witness, after testifying orally, * * * is beyond the jurisdiction of the court, * * * if the evidence given by such * * * witness is incorporated into a bill of exceptions * * * and such bill has been signed by the judge or court before whom such evidence was given, the evidence so incorporated into such bill of exceptions may be read in evidence by either party on the further trial of the case. If no bill of exceptions has been taken or signed, but the evidence of such party or witness has been taken down by an official stenographer, the evidence so taken may be read in evidence by either party on the further trial of the case and shall be prima facie evidence of what suchdeceased party or witness testified to orally on the former trial. * * *" (Emphasis added.) Obviously, the first sentence of the code section above quoted does not apply. There was no appeal from the first trial, the new trial having been granted pursuant to motion in the trial court, and therefore, there could have been no "bill of exceptions." As we read the second sentence of that quoted section, where no bill of exceptions has been taken or signed, on a further trial the testimony of a deceased party or witness may be read into evidence. The evidence did not establish that Robert White was deceased. Thus, the trial court did not err in refusing to permit White's testimony given at the first trial to be read into evidence. We observe that subsequent to the date of the trial now being appealed, on May 28, 1981, R.C. 2317.06 was amended so that now the testimony of a witness, given at a former trial, who is at the time of the present trial beyond the jurisdiction of the court, may be read into evidence, no mention being made of death of the witness. Likewise, we note that Evid. R. 804(B)(1), which became effective on July 1, 1980, also subsequent to the date of the trial in question, now permits such testimony to be read into the record. We also observe, from our reading of the transcript of Mr. White's testimony in the first trial which was attached to the Aszman brief, that the substance of White's proffered testimony was included in the testimony of Larry Wiser, an active employee of the health department, and the testimony of Paul Buker, Superintendent of the Warren County Building and Zoning Inspection Department. Thus, even if the trial judge erred in refusing to permit White's testimony taken at the *Page 67 first trial to be read into evidence, that error would not have been prejudicial. Accordingly, we hold that Aszman's second assignment of error and Hague's first assignment of error are not well taken. III For its fourth assignment of error, Hague contends that the trial court erred in not permitting counsel to call the defendant, Shirley Aszman, as if on cross-examination, in its case-in-chief. Hague bases its claim of error on R.C. 2317.07, which provides, inter alia, that, "[A]t the instance of the adverse party, a party may be examined as if under cross-examination * * *." Both Hague and Shirley Aszman were co-defendants. Neither of them, however, filed any cross-complaint against the other. Hague contends that they were nevertheless adverse since it was to Shirley Aszman's best interest to have Hague found liable so that there would be several liabilities. Hague has not cited any cases in support of its contention, and our own research has not uncovered anything appropriate. Insofar as the pleadings are concerned, no issues are set forth in which Hague is adverse to Shirley Aszman. To hold as Hague urges would be to declare that in any case brought against alleged joint tortfeasors, that alone would make the alleged tortfeasors adverse to each other, even though their primary interest in preventing the plaintiff from recovering was cooperative. Nothing in the pleadings before us indicates that either of these alleged joint tortfeasors was attempting to steer sole liability to the other. In our opinion, their interests were not adverse, and therefore, the trial judge did not err when he refused to permit one of them to call the other as on cross-examination. This assignment of error is accordingly overruled. IV At the close of plaintiffs' case, and again at the close of all of the evidence, both Hague and Aszman moved for directed verdicts. The overruling of these motions is charged as error in the second assignment of error in the briefs of each of these parties. Each of them contends that there was no showing of fraudulent conduct on the part of either of them. It is undisputed that in December 1974, plaintiffs were looking either for a newly built home on a five-acre tract of land, more or less, or vacant acreage of similar size upon which they might build a home. With the assistance of Connie Charles, a real estate agent, they did locate a suitable vacant tract, which was a part of some two hundred acres owned by one Nicholas M. Gormas, and which was in the process of being sold for him by appellant Hague, whose agent in charge was appellant Shirley Aszman. It was established that Shirley worked on this project in conjunction with her husband, appellant Sandy Aszman; Gormas was willing to sell either the entire two hundred acres or to sell lesser amounts. At the time plaintiffs contacted Aszman, through Charles, none of the Gormas acreage had been sold, and the tract involved in this law suit was indeed the first tract to be sold. The property in question was located on the Roachester-Cozaddale Road, Warren County, a road which runs generally in a southwest-northeast direction. After clearing the question of availability with Shirley Aszman, on December 31 Connie Charles drafted an offer to purchase for plaintiffs' signatures. That offer described the property desired as "6.30 acres southeast side of Roachester-Cozaddale Road. First parcel northeast of the creek." After some dickering over price, the offer was accepted, and a closing date was set for February 10, 1975. For reasons attributable to the seller, closing did not take place on that date, and thereafter, on March 13, 1975, a new offer to purchase was made. Although this offer was prepared in Charles' office, its text was apparently given to her secretary over the telephone by Aszman. This *Page 68 second contract simply said "6.2 acres," without reference to any location. Robert Fulton admitted that he read this contract before he signed it. At no time in advance of the closing was any specific description given for the land to be conveyed. Likewise, at no time did plaintiff or Charles ever mention any land except that which began northeast of the creek. It was always plaintiff's intention that the land he was buying should have the creek on its southwest side. Some one hundred and fifty to two hundred feet southwest of the creek was a cemetery, and at no time was the cemetery ever mentioned as being one of the boundaries of the land in question. Although some rough sketches were exchanged, no survey of the land was ever shown to plaintiff prior to closing. He did ask for the survey at the time of the closing, but, although the survey had been made sometime before and had been in Aszman's hands, for some unknown reason it was not available for plaintiff's inspection at that time. As indicated in the first part of this opinion, after plaintiff accepted the deed and executed the mortgage to secure payment for the land, plaintiff learned that the southwest boundary of the land he had purchased was not the creek, but was the cemetery, and that instead of the creek being on the southwest side of the land, it was essentially in the middle. Aszman admitted in his testimony that he had received and read the contract dated December 31, 1974. He insisted, however, that as far as he was concerned, he was always talking of a tract which began at the cemetery. After plaintiff discovered what he had received, he got in touch with Charles, who then consulted with one Donald G. Attermeyer, broker-owner of the real estate agency with whom she was associated. Attermeyer was of the opinion that plaintiff had received the wrong deed, and he telephoned Aszman about getting a corrected one. He also offered to swap lots, or to make arrangements so plaintiff could buy two lots, both of which suggestions Aszman rejected. According to Attermeyer, Sandy Aszman replied: "No, the man got the right lot. He got the lot that I wanted to deed him." And, "the fool bought what he bought." Sandy Aszman did not deny this report of his conversation. Both the deed which plaintiff accepted, and the mortgage which he executed, as a part of the description of the land being conveyed, contained the following: "764.89 feet to an iron pin at the easterly corner of a cemetery tract," and "Thence, with the northeasterly line of the cemetery tract, North 32 degrees, 12 minutes, 46 seconds West (passing an iron pin at 305.00 feet) a distance of 330 feet to the point of beginning * * *." Plaintiff admitted that at the closing he did not read either the description contained in the deed or that contained in the mortgage. At least to one with some experience in reading non-platted land descriptions, it is apparent that the land being purchased abutted on the cemetery tract. Both Aszman and Hague argue that since the deed and mortgage description clearly indicated the cemetery as a boundary, and since by inspection plaintiffs could have discovered this fact, he is not now in a position to claim that anything was misrepresented to him, citing Traverse v. Long (1956), 165 Ohio St. 249 [59 Ohio Op. 325]; and Ralston v. Grinder (1966), 8 Ohio App. 2d 208 [37 O.O.2d 213]. Traverse, supra, involved a controversy over some filled land on a portion of property which the plaintiff was purchasing. It appears that the real estate agent made some false statements to plaintiffs relative to the condition of this filled land, but it also appears that the misstatements were not willfully false, but were based on his honest opinion. The Supreme Court's opinion contains no syllabus, but does contain the following statement: "The principle of caveat emptor applies to sales of real estate relative to conditions *Page 69 open to observation. Where those conditions are discoverable and the purchaser has the opportunity for investigation and determination without concealment or hindrance by the vendor, the purchaser has no just cause for complaint even though there are misstatements and misrepresentations by the vendor not so reprehensible in nature as to constitute fraud." Id. at 252. That statement itself indicates that the results might have been different if the misstatements and misrepresentations had been so reprehensible in nature as to constitute fraud. There the court decided that question as a matter of fact. The factual matter is not so clear here, as to whether Aszman, knowing that plaintiffs wanted the land they were purchasing to run northeastwardly from the creek, deliberately prepared a deed which began at the cemetery tract, under circumstances which might constitute fraud. A jury question thus remained. Ralston, supra, involved a situation in which the real estate agents had advised plaintiffs-purchasers that there were three acres of land in the tract to be sold. The owner told them the same thing. Prior to the recording of the deed, plaintiffs had executed a mortgage which contained a description of the land purchased as containing 1.4874 acres. The court held there that plaintiffs could not, because of their failure to investigate, complain of fraud when the land area, by the execution of the mortgage, was brought to their attention, and they cannot be heard to deny that their own negligence created the situation about which they now complain. In the case sub judice, it is submitted that even though Ralston dealt with quantity the same rule should apply as to location particularly where a deed and mortgage review at closing would have given obvious notice that the tract being purchased began at the cemetery line, not at the creek. There were, however, other factors which may have influenced the Ralston court in its conclusion. In addition to the notice given by the quantity designation of 1.4874 acres contained in the mortgage, plaintiffs in that case were also physically shown the precise land they were buying before any mortgage was executed or deed accepted. They had inspected the property several times and the boundaries were pointed out. They easily could have checked the distances and computed the area. These factors were not present in the case before us. Ohio case law has not covered the situation of an alleged misrepresentation as to location of land. Our own research has developed that the matter has received attention in other jurisdictions. In 37 American Jurisprudence 2d Fraud and Deceit, Section 98, it is stated at pages 141-142, that "[T]he general principle is well settled that false statements or misrepresentations as to the location, boundaries, or identity of real property which is the subject of a transaction constitute actionable fraud and will sustain an action of deceit or constitute ground for rescinding the contract. * * *" Likewise, in 37 Corpus Juris Secundum, Fraud, Section 52, it is stated that "[M]isrepresentation as to the boundaries or location of real property constitute fraud where the other essential elements of fraud are present; even where the facts are matters of public record the representee is not required to conduct a search, and may have redress for misrepresentations." Again, in 91 Corpus Juris Secundum 925, Vendor Purchaser, Section 64(b), the following appears: "The seller's misrepresentation as to the position of the boundary lines of the property may invalidate the sale where the falsely asserted boundaries form part of the inducement to buy and constitute a material factor in the sale, as where land which would have formed part of the parcel conveyed, had the representations been true, is not included in the boundaries of the land actually sold and the part *Page 70 thus lost is a material part of the whole tract in quantity or value. * * *" Cited in support of the last part above quoted is Williams v.Reinert (1933), 251 Ky. 344, 65 S.W.2d 66, a case in which, as here, the buyer accepted a deed without seeing or reading the description. That the deed which plaintiffs accepted and the mortgage which they executed contained a description which, if read, clearly indicated that the land they were buying began at the cemetery line rather than at the creek as they intended is thus not conclusive of the absence of misrepresentations by Aszman. Motions for directed verdicts are construed most strongly against the moving party. If there are undecided factual questions upon which reasonable minds might differ, the motion to direct must be overruled, and the matter submitted to the jury under proper instructions. Our review of the record causes us to conclude that such is the case here. The Aszman motion for a directed verdict made at the close of plaintiffs' case was in two parts: first, a general verdict, and secondly, a directed verdict as to plaintiffs' demand for punitive damages. The trial court granted the motion insofar as the demand for punitive damages was concerned. In connection with their second assignment of error, Aszman contends that the claim for punitive damages encompasses the same elements necessary to entitle plaintiffs to receive compensatory damages, and that therefore when the demand for punitive damages was dismissed, the demand for compensatory damages should also have been dismissed. The case of Logsdon v. Graham Ford Co. (1978), 54 Ohio St. 2d 336 [8 O.O.3d 349], belies this contention, with the Supreme Court holding that there was a distinction between the kind of fraud necessary to be shown to establish a right to compensatory damages, and the kind necessary to be shown to justify punitive damages. In the latter case, the fraud must be gross or malicious. The effect of the trial court's holding in the case before us is that that court found that there was sufficient evidence presented by plaintiffs to require jury consideration of the issue of ordinary fraud, but no evidence to support a finding of gross or malicious fraud. Whether the trial court was correct from a factual point of view in making that distinction will be discussed later in this opinion as we deal with plaintiffs' cross-appeal assignments of error. Insofar as this assignment of error is concerned, we hold that the trial court had a legal right to make such a distinction. Hague's liability in this case had to rest on respondeat superior, the agency relationship between it and Aszman. In its second assignment of error (its motion for directed verdict), it contended that the motion should have been granted since there was no showing of Aszman's agency or the scope of that agency, but rather there was a showing that Aszman was an independent contractor. Hague pointed out that Aszman was employed to accomplish some result or some piece of work, and was at liberty in general to choose his own means and methods, being responsible only for the results. Post Publishing Co. v. Schickling (1926),22 Ohio App. 318. Primary reliance is placed on Councell v.Douglas (1955), 163 Ohio St. 292 [56 Ohio Op. 262], paragraph one of the syllabus, wherein it is stated that "[T]he relationship of principal and agent or master and servant is distinguished from the relationship of employer and independent contractor by the following test: Did the employer retain control of, or the right to control the mode and manner of doing the work contracted for?" Our attention is also invited to several other cases supporting this point of view, none of which, however, involves the relationship of real estate broker and salesman. Plaintiffs do not cite any cases but do factually point out that Hague always retained the right to fire Aszman, and that *Page 71 after the problem of the location of the land became apparent, Aszman did consult with Hague about it. In their briefs, counsel for both parties discuss this issue on a common-law basis. Neither of them make any reference to R.C. Chapter 4735 on real estate brokers. R.C. 4735.01(A) defines a "real estate broker" and establishes the areas in which such broker may perform. R.C. 4735.01(C) provides that: "`Real estate salesman' means any person associated with a licensed real estate broker to do or to deal in any acts or transactions set out or comprehended by the definition of a real estate broker as set forth in this section, for compensation or otherwise." R.C. 4735.07 prescribes for the licensing of real estate brokers, and sets forth in detail the preliminary education and practical experience which a person must have before being examined and qualified as a real estate broker. R.C. 4735.09 prescribes for the licensing of real estate salesmen, and an examination of these two sections clearly reveals that a much more comprehensive background and a much more detailed examination is required for licensing a real estate broker. The second paragraph of R.C. 4735.21 is also instructive: "No real estate salesman shall collect any money in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental, or otherwise, except in the name of and with the consent of the licensed real estate broker under whom he is licensed. Nor shall any real estate salesman commence or maintain any action for a commission or other compensation in connection with a real estate brokerage transaction, against any person except a person licensed as a real estate broker under whom he is licensed as a salesman at the time the cause of action arose." In Wolf v. Hyman (1957), 104 Ohio App. 32[4 O.O.2d 75], the Hamilton County Court of Appeals commented on R.C. Chapter 4735, as follows: "It will be observed that a real estate salesman is given no right to conclude a sale. He is an associate of a licensed real estate broker who, by definition, is the one who sells. It will also be observed that a licensed real estate salesman has no independent status. He is an associate of a licensed real estate broker, and can only function through the broker with whom he is associated * * *." Id. at 35. Here, both Sandy Aszman and Shirley Aszman were simply real estate salesmen; they were not real estate brokers. Thus, under the statute, they could have no independent status, regardless of how loose the arrangements might have been between them, or either of them, and Hague. Such a construction of the statute is consistent with the public policy behind its enactment. Being subject to less stringent qualifications, the real estate salesman is required to be under the supervision of a licensed real estate broker in all of his activities relative to the sale of real property. If the Hague contention were approved, the only purpose of the statute would be to enable the real estate broker to share in the commission created by the real estate salesman — certainly an absurd purpose. Statutorily, then, Hague cannot deny the Aszman agency. The trial court did not err in overruling the respective motions for directed verdicts, and therefore, the second assignment of error of each appellant is held not to be well taken. V Both Aszman and Hague contend that portions of the trial court's charge to the jury were prejudicially erroneous, such contentions being Aszman assignment of error one and Hague assignment of error five. Aszman claims that "[I]n an action for fraudulent misrepresentation it was error for the trial court to fail to give an instruction that the alleged wrongdoers *Page 72 must be proved to have had the intent to deceive in order to be liable." Hague states the same alleged error a different way: "Absent fraud on the part of a seller of real property or his agents, there can be no recovery by a buyer based upon a theory of either negligent or tortious misrepresentation." The charge to the jury complained of was given as follows: "The first thing the Plaintiffs have to prove then by a preponderance of the evidence is that one or the other of the Aszmans made representations to Mr. Fulton that he was being sold a lot other than the one he actually received. So, that is the beginning. They have to prove that there was a misrepresentation. Then it must also be shown that the misrepresentation was known by the Aszmans to be false — that is, that the Aszmans, one or the other of them, knew better. Then, it must be proved that the Plaintiffs relied on that untrue representation and were deceived by it * * *." It is clear that at no place in the above-quoted jury charge was there any reference to any requirement that the jury find that Aszman intended to deceive plaintiffs. The charge does, however, require the jury to find that Aszman knew the representations to be false, and that plaintiffs relied on them. In their brief, Aszman relied on 24 Ohio Jurisprudence 2d 703, Fraud and Deceit, Section 109: "The rule is firmly established that the existence of a fraudulent intent or intent to deceive is an indispensable element to successful maintenance of a tort action of deceit for the recovery of damages. Actual fraud is the foundation, or, as is often said, the gist or gravamen of the action of deceit. It must be shown that the representation was made with the fraudulent intent of deceiving and inducing persons to act upon it, in order to constitute an action of deceit for fraudulent misrepresentation, or to defeat a recovery on the fraudulent contract." So far as it goes, the above quotation correctly states the law. It is not, however, complete. Section 113, at 706, op.cit., provides: "The intention to deceive may be inferred, and, in some cases, will be conclusively imputed upon the principle that a party must be presumed to intend the necessary consequences of his own acts or conduct. Intent need not be proved where the facts show that the party making the fraudulent representations must have known their falsity and intended them to be an inducement to the transaction." Again, in Section 114, at pages 706-707, it is stated that "[W]here knowledge of the falsity of representations is shown, it is not essential that there be a motive for actual fraud." The charge of the trial court in the case at bar required the jury to find that (1) the representations made by Aszman were false; (2) that Aszman knew they were false; and (3) that plaintiffs relied on such representations. If the jury found affirmatively on these issues, Aszman's intent to deceive would be inferred, and accordingly we conclude that no specific charge on intent to deceive was necessary. Gleason v. Bell (1915),91 Ohio St. 268; Mohler v. Baker (1950), 88 Ohio App. 461 [45 Ohio Op. 238]. As indicated supra in this opinion, between the time plaintiffs accepted the deed to the property and the time they learned that they had not received the property for which allegedly they had bargained, their builder, Mr. Hogue, had begun work on a driveway and on the proposed basement for their home which was not located on the property which had been deeded to them. In this connection, Fulton testified as follows: "Q. What work had he done? "A. Well, he had excavated the driveway and excavated the basement and began [sic] work on the foundation. *Page 73 "Q. And did you agree to pay Mr. Hogue for this? "A. Oh, yes. "Q. How much did you agree to pay him? "A. $2,500.00 for that work. "Q. Okay, now, this was part of the contract that he had with Mr. Hogue? "A. That was part of the price that was included in the house, yes." In connection with this evidence, the trial court charged the jury as follows: "Now, if you find in favor of the plaintiffs, you may award to the plaintiffs whatever sum of money you find from the evidence is reasonably necessary to compensate them for their loss in regard to this particular matter of the driveway and the other excavation. You should look at the particular expense that was incurred here for this driveway and so much of it as you find was actually and reasonably incurred by the plaintiffs." At the conclusion of the charge, Hague objected "to the damage instruction as it relates specifically to the $2,500 charge for the driveway." It now asserts error as follows: "Where the plaintiff's testimony indicates that he had agreed to pay a third party $2500.00 for certain work done, but that he had not paid that sum and did not present testimony as to the reasonable value of this amount, then it cannot be considered by the jury as an element of damages." In support, Hague cites Motorist Mutual v. Cook (1971), 31 Ohio App. 2d 1 [60 O.O.2d 25], and Hellkamp v. Boiman (1970), 25 Ohio App. 2d 117 [54 O.O.2d 237]. Neither of these cases, however, dealt with a contractual obligation. If plaintiffs agreed to pay Mr. Hogue $2,500 for the driveway and basement and he in fact did that work, plaintiffs are obligated to pay him that much for the work done, regardless of what the reasonable value of that work might have been. Thus, we conclude that the trial court did not err in giving the above-quoted charge. Finally, Hague contends that the trial court erred in refusing to give the instruction suggested by its counsel, that "an independent contractor, just as an agent, can be fired and discharged from employment; that this act of firing and discharging does not in itself have any bearing as to whether someone is an agent or an independent contractor." Earlier in this opinion, we determined that under R.C. Chapter 4735, Aszman as real estate sales persons could have no status independent of their real estate broker, Hague. Since they could not be independent contractors, but were limited to an agency relationship in whatever type of an arrangement they had with Hague, it was not error for the trial court to refuse to give any charge relative to the distinction between an independent contractor and an agent. We observe that had the verdict of the jury been in favor of Hague, plaintiffs, had they objected appropriately at the close of the charge, would have had just complaint as to the entire portion of the charge dealing with independent contractors. Accordingly, we conclude that none of the appellants' assignments of error relative to the charge of the trial court to the jury is well taken. VI For its final assignment of error, Hague asserts that the verdict of the jury is against the manifest weight of the evidence. The basis for this assertion is the contention that the evidence established that plaintiffs were themselves guilty of something similar to contributory negligence, in that it was error to conclude that they were acting with ordinary common prudence in this transaction. The trial court did give the jury an instruction on this issue. Hague argues that the evidence showed conclusively that Fulton did not act as a prudent person should, and that he had ample opportunity to protect his own interest but chose not to do so. In support, it cites Oakes v.Aller (1964), 7 Ohio App. 2d 72 [36 O.O.2d 159], *Page 74 wherein the following quotation from 37 Corpus Juris Secundum 284, Fraud, Section 37, is approved: "One cannot secure redress for fraud where he acted on his own judgment derived from independent investigation or reports or advice and not on the representations made to him; the representee is ordinarily chargeable with knowledge of all the facts which his investigation should disclose." The above quotation is, of course, in-apposite. Plaintiffs did not make any investigation of their own. They relied upon the impression they received from Aszman. In this connection, we note that "[A] false representation may be made by conduct calculated and intended to produce a false impression as well as by words." 24 Ohio Jurisprudence 2d 638, Fraud and Deceit, Section 25. Were they justified in relying on Aszman? Hindsight being better than foresight, it is obvious that there were a number of things plaintiffs could have done to protect themselves from what happened. It cannot be said as a matter of law, however, that a purchaser of real estate is not entitled to rely on representations made by one selling, or responsible for selling, that real estate. See 24 Ohio Jurisprudence 2d 722, Fraud and Deceit, Section 130. Whether plaintiffs exercised prudence in their reliance on Aszman was a fact question for the jury, was indeed submitted to that body, the trial court charging the jury that "it must be proved that in relying on that representation, they were acting with ordinary prudence, that is, the prudence that an ordinary person would use under circumstances of this type considering the nature of the transaction." No objections were made as to that charge. From our review of the transcript of the testimony, it does appear that the verdict was supported by some credible evidence going to all the essential elements of the case. Under such circumstances, a reviewing court cannot find that the result was against the manifest weight of the evidence. C.E. Morris Co. v.Foley Construction Co. (1978), 54 Ohio St. 2d 279 [8 O.O.3d 261]. Hague's sixth assignment of error is accordingly held not to be well taken. A Plaintiffs have also filed a cross-appeal, with their first assignment of error on cross-appeal being that the trial court erred in not submitting to the jury the claim of the plaintiffs for punitive damages. The issue of punitive damages was discussed earlier in this opinion in connection with the Aszman second assignment of error regarding the overruling of their motion for a directed verdict. Per Logsdon v. Graham Ford, supra, we recognized that fraud may be simple, or it may be gross and malicious, the latter being required before punitive damages may be assessed. Mr. Aszman did indeed make some statements to Connie Charles to the effect that he hated Fulton, and he did refer to him as a "son of a bitch." These statements, however, were made after plaintiffs learned they had not been deeded the land they intended to purchase, and were attempting to have the matter remedied in their favor. There was no evidence to show that at the time Aszman was actually in the act of making what the jury found to be misrepresentation he bore any ill will toward plaintiffs. Accordingly, we conclude that the trial court did not err when it refused to submit the question of punitive damages to the jury. B Plaintiffs' second assignment of error by way of cross-appeal is that the trial court erred in not permitting the plaintiffs to amend their complaint seven days prior to trial. As indicated in the first part of this opinion, this appeal is taken from the second trial of this case. The first trial took place in May 1978, and resulted in a verdict for plaintiffs in the amount of *Page 75 $15,000. Plaintiffs' complaint was filed on May 12, 1975, and sought compensatory damages of $12,500. Within seven days of the second trial date, February 4, 1980, plaintiffs amended their demand to $25,000 and thereafter the trial court sustained Hague's motion to strike this amended demand, which order gave rise to this assignment of error. Plaintiffs rely on Civ. R. 54(C) which provides in pertinent part: "* * * [A] demand for judgment which seeks a judgment for money shall limit the claimant to the sum claimed in the demand unless he amends his demand not later than seven days before the commencement of the trial. Additional service of process is not necessary upon such amendment." Both appellants contend that such an increase in the demand is nevertheless an amendment to the complaint which is governed by Civ. R. 15(A), which provides in pertinent part: "A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires. * * *" Appellants point out that neither of them has consented to the amendment. It is clear that both Civ. R. 15(A) and 54(C) deal with amendments to pleadings. It is also readily apparent that they are from the point of view of dealing with the same subject matter inconsistent, in that the Civ. R. 15(A) provides that unless the amendment is made before a responsive pleading is served or within twenty-eight days after a pleading to which no responsive pleading is permitted, it must have court approval or other party consent to be effective, while, on the other hand Civ. R. 54(C) permits its kinds of amendment not later than seven days before trial and makes no requirement for either court approval or other party consent. The inconsistency is resolvable, however, when it is considered that Civ. R. 15(A) deals with amendments generally, while Civ. R. 54(C) is applicable only to amendments of the money demand for relief. We hold, therefore, that Civ. R. 54(C), applying only to amendments of the demand is an exception to the court approval or party consent provisions of Civ. R. 15(A). Since Civ. R. 54(C) makes no provision either for court approval or party consent, as long as the amendment is made not later than seven days before trial, the demand as such may be amended, pro forma, and neither court consent nor opposing party approval is a prerequisite to its effectiveness. Appellants argue that such a holding would put them at a disadvantage in obtaining discovery prior to trial to determine the reason for the increased demand. If that were the case, a motion for continuance would be in order. Cross-appellants' second assignment of error is accordingly sustained. The judgment of the Court of Common Pleas of Warren County, will therefore be affirmed in part and reversed in part. Since the reversal is based on the trial court's sustaining of Hague's motion to strike plaintiffs' amended demand, pursuant to authority conferred upon us by App. R. 12(B), having determined that the trial court committed error prejudicial to the cross-appellants, we now conclude that plaintiffs-cross-appellants are entitled to have judgment rendered in their favor in the amount of $15,000, that amount being the verdict of the jury without the trial court's reduction. It is our holding that since the trial court should have permitted the amended demand of $25,000 to stand, there was no basis for reducing the jury's verdict to *Page 76 $12,500, the amount demanded in the original complaint. Judgment affirmed in part and reversed in part. HENDRICKSON, P.J., and KOEHLER, J., concur. ZIEGEL, J., retired, of the Court of Common Pleas of Preble County, was assigned to active duty under authority of Section 6(C), Article IV, Constitution.

2016-07-06 06:42:25.503878+00

Waite

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 317 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 318 {¶ 1} Appellant, Mary Ellen Potts, appeals the decision of the Mahoning County Court of Common Pleas, granting summary judgment to the defendant in a case involving breach of contract, age discrimination, wrongful discharge in violation of public policy, and negligence. Appellant had been a teacher at St. Charles School, a parochial school under the jurisdiction of appellee, the Catholic Diocese of Youngstown. Appellant's teaching contract was terminated after she entered into a marriage that appellee determined was invalid under the teachings of the Roman Catholic Church. Appellant filed a multicount complaint in response to appellee's actions. The trial court granted summary judgment to appellee on all claims. It appears from the record that appellee did not provide any evidence with respect to some of appellant's contractual claims concerning money that may have been owed to her at the time of her discharge. Appellant should have been permitted to go to trial on this limited aspect of her breach of contract claim. On all other claims, the trial court was correct in granting summary judgment. The judgment of the trial court is reversed and remanded for the limited purpose of litigating the remaining contractual issues. {¶ 2} Appellant filed her complaint on May 3, 2002. Appellant stated four claims in her complaint: breach of contract, age discrimination, wrongful discharge in violation of public policy, and general negligence. On July 8, 2002, appellee filed an answer in which it asserted that appellant had failed to state a claim for which relief could be granted and that the claims were barred by the First Amendment. {¶ 3} On November 21, 2003, appellee filed a motion for summary judgment. The motion first argued that appellant's teaching contract incorporated by reference the terms and conditions of the Lay Teacher Personnel Policies and Fringe Benefits. The motion argued that the Section 7(7) of the Lay Teacher Personnel Policies and Fringe Benefits manual gave the superintendent of schools the right to terminate any teaching contract if the teacher entered into a marriage not recognized as valid by the Catholic Church. The attached affidavit of Sister Mary Alyce Koval asserted that the Catholic Church does not recognize a marriage as valid if either party to the marriage was previously married and if *Page 319 that prior marriage was not properly annulled. The affidavit also asserted that appellant had entered into that type of invalid marriage. These facts were apparently presented as a complete defense to the breach-of-contract claim, the age-discrimination claim, and any other possible claim contained in appellant's complaint. {¶ 4} Appellee's motion for summary judgment also argued that the claims presented by appellant involved an excessive entanglement of the court into religious questions, in violation of the First Amendment. {¶ 5} Appellant filed a response to the motion for summary judgment on December 17, 2003. Appellant's attached affidavit asserted that she became engaged to Roger Brotzman on October 6, 1999. Brotzman was a protestant Christian and had been previously married. Appellant asserted that she also had been previously married but that her previous marriage had been properly annulled. The affidavit stated that she found out from her priest that under Roman Catholic doctrine, Brotzman's protestant marriage would also need to be properly annulled before appellant and Brotzman could be married. Appellant alleged that Monsignor Carigilio told her that Brotzman's prior marriage would be annulled on grounds of adultery. Appellant stated that the annulment decision was announced on November 28, 2001, and that the annulment was not granted. Appellant and Brotzman decided to go forward with the marriage. Appellant was then fired from her teaching position on December 14, 2001. She was replaced by the 23-year-old daughter of the assistant principal of the school. {¶ 6} Appellant's responsive motion argued that there were material facts in dispute as to whether appellee's stated reason for firing appellant was a pretext for unlawful age discrimination. Appellant also argued that appellee's motion failed to address the first, third, and fourth claims in the complaint and that the trial court should only have ruled on a partial motion for summary judgment dealing solely with the age-discrimination claim. {¶ 7} On December 22, 2003, appellee filed a reply to appellant's motion in opposition to summary judgment. Appellee asserted that its motion for summary judgment attempted to address all claims in appellant's complaint. Appellee argued that the legitimate religious basis for firing appellant precluded the court from granting appellant any relief on her claims. Appellee also noted that appellant had not denied that her marriage was invalid under the teachings of the Roman Catholic Church and that this failure to deny constituted an admission of the fact for purposes of summary judgment. According to appellee, the alleged attempt that appellant made to comply with the marriage requirements of the church was irrelevant because, under church law, the marriage is de facto invalid. Appellee also argued that appellant was owed no money under her contract because she had breached the contract. *Page 320 {¶ 8} On January 8, 2004, the trial court granted appellee's motion for summary judgment on all claims. This timely appeal was filed on February 5, 2004. {¶ 9} Appellant's first assignment of error asserts: {¶ 10} "The trial court erred in finding a breach of appellant's employment contract" {¶ 11} The trial court's January 8, 2004 judgment entry found that appellant had entered into a marriage that was not recognized as valid under the doctrines of the Roman Catholic Church and, therefore, that appellant had violated her employment contract. This finding was made in the course of granting summary judgment to appellee. An appellate court reviews a trial court's decision to grant summary judgment on a de novo basis, without regard to the trial court's decision. Grafton v. Ohio EdisonCo. (1996), 77 Ohio St. 3d 102, 105, 671 N.E.2d 241. De novo review means that the reviewing court is not required to give any weight or deference to the trial court's judgment. Any error that the trial court made in finding that appellant breached the employment contract is harmless error based on this court's de novo standard of review. Whether or not appellant breached the employment contract, though, is relevant as part of appellant's second assignment of error, which will be discussed below. {¶ 12} Appellant's second assignment of error states: {¶ 13} "The trial court abused it's [sic] discretion in granting appellee's rule 56 motion" {¶ 14} Appellant contends that summary judgment should not have been granted on any of the claims in her complaint, much less on all claims, particularly since appellee did not request summary judgment on all the claims. As stated above, this court's standard of review of a trial court's decision granting summary is a de novo standard, which is the same standard used by the trial court. In accordance with Civ.R. 56, summary judgment is appropriate when "(1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St. 3d 679,653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St. 3d 280, 292-293, 662 N.E.2d 264, 273-274."Zivich v. Mentor Soccer Club (1998), 82 Ohio St. 3d 367,369-370, 696 N.E.2d 201. *Page 321 {¶ 15} If the moving party meets its initial burden of production, the nonmoving party bears a reciprocal burden to produce evidence on any issue for which that party bears the burden of proof at trial. Dresher, 75 Ohio St.3d at 293,662 N.E.2d 264. {¶ 16} There are three main points that appellant attempts to make as part of this assignment of error. First, appellant contends that she did not breach the employment contract. Second, she argues that even if she did breach the contract, the breach does not extinguish her claim for age discrimination. And third, she asserts that even if she did breach the contract and even if the age-discrimination claim is not viable, the other claims in her complaint should not have been disposed of in summary judgment. {¶ 17} It is clear from the record that appellant has not presented any evidence challenging appellee's assertion that she breached the employment contract. Appellee submitted an affidavit of Sister Mary Alyce Koval, which states that appellant was fired because she had entered into a marriage that was invalid under the teachings of the Roman Catholic Church. Appellant's response was to argue that the marriage would have been valid if her priest had done what he promised to do. Appellant's response was not a denial of Sister Koval's affidavit but, rather, an admission that the marriage was invalid according to the church, along with an excuse for the invalid marriage. {¶ 18} Appellant's second argument involves the age-discrimination claim. A prima facie case of age discrimination is established when the plaintiff shows that she was a member of the statutorily protected class, that she was discharged, that she was qualified for the position, and that she was replaced by, or the discharge permitted the retention of, a person of substantially younger age. Coryell v. Bank One TrustCo. N.A., 101 Ohio St. 3d 175, 2004-Ohio-723, 803 N.E.2d 781, paragraph one of the syllabus. Once a prima facie case of age discrimination is established, the employer may overcome the presumption by coming forward with a legitimate, nondiscriminatory reason for the discharge. Kohmescher v. KrogerCo. (1991), 61 Ohio St. 3d 501, 503, 575 N.E.2d 439. The plaintiff is then permitted to show that the stated reason is merely a pretext for unlawful discrimination. Manofsky v.Goodyear Tire Rubber Co. (1990), 69 Ohio App. 3d 663, 668,591 N.E.2d 752. {¶ 19} Appellee argued at the trial court level that the age-discrimination claim could not survive because it gave a legitimate reason for firing appellant. Appellee asserts that the reason for the firing was based on religious doctrine and that this religious doctrine could not be reviewed by a civil court. In this appeal, neither party gives us much insight into how we are supposed to review appellant's age-discrimination claim without also examining the validity or invalidity *Page 322 of appellant's marriage under Roman Catholic teachings. Fortunately, this problem is not a matter of first impression in Ohio. The First District Court of Appeals has ruled on a very similar set of facts in Basinger v. Pilarczyk (1997),125 Ohio App. 3d 74, 707 N.E.2d 1149 ("Basinger I"). Although BasingerI involved a motion to dismiss rather than a motion for summary judgment, its analysis is equally applicable to the instant case. {¶ 20} In Basinger I, the two plaintiffs were fired from their teaching positions at All Saints School, a parochial school under the jurisdiction of the Catholic Diocese of Cincinnati. The plaintiffs claimed that their employment was terminated because of age discrimination in violation of R.C. 4112.02(A) and4112.14. The defendants asserted that the firing occurred because the plaintiffs had entered into a marriage that violated church doctrine and that their employment contract required, as a condition of employment, that the teachers abide by the tenets of the Roman Catholic faith. {¶ 21} The Basinger I opinion examines whether the First Amendment allows a civil court to review the religious doctrines relating to the firing of a parochial school teacher. The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *." This portion of the First Amendment has been generally interpreted to mean that courts are barred from inquiring into purely ecclesiastical questions and from resolving disputes over church doctrines and practices. PresbyterianChurch v. Mary Elizabeth Blue Hull Mem. Presbyterian Church (1969), 393 U.S. 440, 447, 89 S. Ct. 601, 21 L. Ed. 2d 658. If a court cannot resolve a dispute without extensive inquiry into religious laws and polity, the court must defer to the decisions of the highest ecclesiastical tribunal of the relevant religious institution. Serbian E. Orthodox Diocese v. Milivojevich (1976), 426 U.S. 696, 709, 96 S. Ct. 2372, 49 L. Ed. 2d 151. {¶ 22} Basinger I, though, held that the claim of age discrimination against the Catholic Diocese of Cincinnati did not involve an excessive entanglement of the court into religious doctrine. Basinger I held: {¶ 23} "The First Amendment does not, however, preclude the trial court's limited inquiry into the second count of the complaint, which alleges that the doctrinal reason proffered by the appellees for the Basingers' termination was a mere pretext and that their firing was actually motivated by age discrimination. In so ruling, we are acutely mindful of the three-prong inquiry set forth in Natl. Labor Relations Bd. v.Catholic Bishop of Chicago (1979), 440 U.S. 490, 99 S. Ct. 1313,59 L. Ed. 2d 533, to determine impermissible entanglement between a secular law and a religious institution. However, if the allegations in the second count are presumed true, as is required under Civ.R. 12(B)(6), the Basingers have established a prima facie case of employment discrimination under McDonnell *Page 323 Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S. Ct. 1817,36 L. Ed. 2d 668. See Mauzy v. Kelly Services, Inc. (1996),75 Ohio St. 3d 578, 664 N.E.2d 1272. Although All Saints School has proffered a legitimate doctrinal reason for their termination, the Basingers are still entitled to an opportunity to demonstrate, as they allege, that the doctrinal reason proffered was not the real motivation behind their termination." Id.,125 Ohio App.3d at 76, 707 N.E.2d 1149. {¶ 24} The three-pronged test that Basinger I refers to is undoubtedly the test first set forth in Lemon v. Kurtzman (1971), 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745, which held that a statute does not violate the Establishment Clause when (1) it has a secular legislative purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it does not excessively entangle government with religion. Id. at 612-613,91 S. Ct. 2105, 29 L. Ed. 2d 745. {¶ 25} After Basinger I remanded the case for further proceedings, the lower court granted summary judgment to the defendants. The case was appealed a second time in Basinger v.Pilarczyk (2000), 137 Ohio App. 3d 325, 738 N.E.2d 814 ("Basinger II"). In Basinger II, the appellate court held, "The plaintiffs-appellants could refute the defendants-appellees' justification for their discharge by proving that (1) there was no basis in fact for the justification given, (2) the justification did not actually motivate the discharge, or (3) the justification was insufficient to motivate the discharge." Id. at 328-329, 738 N.E.2d 814. Basinger II ultimately concluded that the plaintiffs had not provided sufficient evidence that the reason for the firing was a pretext, and the trial court decision was affirmed. {¶ 26} In the instant appeal, appellant has, for all intents and purposes, admitted that there was justification for the firing and that the justification was sufficient to motivate the discharge. The stated justification was the invalid marriage. According to her teaching contract, this reason was sufficient to justify terminating the employment contract. Thus, the only means for appellant to prove that her marriage was merely a pretext for her firing was to show that the marriage did not actually motivate the discharge. Appellant attempted to prove this by stating that the teacher who replaced her was only 23 years old and was the daughter of the assistant principal of the school. The fact that appellant's replacement was 23 years old is no more than a recitation of one of the facts appellant used to establish a prima facie case of age discrimination. The fact that the replacement was a blood relative of the assistant principal does not relate to the issue of age discrimination. It might be used as proof of nepotism or of some other type of favoritism, but it has no bearing on appellee's attitudes or motivations concerning the age of its employees. Thus, appellant has failed to produce sufficient evidence to support a claim of age discrimination. The trial court correctly granted summary judgment on this count. *Page 324 {¶ 27} The final issue raised by appellant is that the trial court should not have granted summary judgment on the claims that were not addressed in appellee's motion for summary judgment. Appellant is incorrect that appellee intended only to ask for summary judgment on the contract claim and the age-discrimination claim. Appellee's supplemental filing on December 22, 2003, makes it clear that the motion for summary judgment was intended to cover all of appellant's claims. {¶ 28} Appellee did not file any evidence to support summary judgment on the claim that appellant was owed back pay, pro rata pay, vacation and sick pay, and other compensation that had already accrued prior to the termination of her contract. Because appellee failed to produce any evidence on this issue, appellant was not required to respond with any evidence in rebuttal. Appellant's complaint states a viable cause of action for breach of contract for the value of compensation and benefits already accrued, and appellant should be permitted to litigate her claim. For this reason, we partially sustain appellant's second assignment of error. {¶ 29} In contrast, appellant's claim of wrongful discharge in violation of public policy cannot survive summary judgment. An essential element of the tort is that the employee was an at-will employee. Wiegerig v. Timken Co. (2001), 144 Ohio App. 3d 664,674, 761 N.E.2d 118. Appellant's complaint is based on the premise that appellee and appellant had entered into an employment contract and that appellee breached that contract. Appellant's contract dictates the terms of her employment, rather than the common-law rules governing at-will employees. Therefore, appellant cannot establish one of the essential elements of the tort of wrongful discharge in violation of public policy, namely, that she was an at-will employee. {¶ 30} Appellant's final claim of negligence creates a high probability of entanglement by this court into doctrinal disputes of the Roman Catholic Church because appellant appears to be asking this court to force appellee to grant her husband an annulment. In order to make such a ruling, this court would need to determine the current teachings of the Roman Catholic Church with respect to annulments, as well as rule on the efficacy of church practices regarding the granting of annulments. Based on the holdings of Presbyterian Church v. Mary Elizabeth Blue HullMem. Presbyterian Church and Serbian E. Orthodox Diocese v.Milivojevich, supra, we must refrain, on constitutional grounds, from addressing this issue. The trial court was therefore correct in granting summary judgment to appellee on this claim, because the trial court was incapable of granting the relief appellant sought. *Page 325 {¶ 31} Based on the analysis above, the trial court was correct in granting summary judgment on all claims except for the limited breach-of-contract claims for compensation and benefits accrued prior to appellant's termination. The judgment of the Mahoning County Court of Common Pleas is reversed and remanded for this limited purpose. Judgment affirmed in part and reversed in part, and cause remanded. VUKOVICH and READER, JJ., concur. READER, J., retired, of the Fifth District Court of Appeals, sitting by assignment.

2016-07-06 06:42:25.678639+00

Bryant

Plaintiff-appellant, Mark Moore, appeals from a judgment of the Franklin County Court of Common Pleas denying his request for postjudgment interest pursuant to R.C. 1343.03 on his judgment against defendant-appellee, Daniel A. Jock. Plaintiff's single assignment of error states: "The court erred in denying plaintiffs/appellants postjudgment interest during the pendency of appeal because plaintiffs/appellants are entitled to such interest under Ohio Revised Code Section 1343.03(A). Absent specific statutory provisions, waiver or bad faith, judgment creditors have the right to appeal inadequate awards without tolling the postjudgment interest because judgment debtors can avoid interest payments by tendering full payment immediately after entry of decision." In August 1988, plaintiff filed suit in the trial court alleging that, on September 25, 1987, defendant negligently and recklessly operated his motor vehicle, colliding with the motor vehicle operated by plaintiff and thereby proximately causing injury to plaintiff. Plaintiff's wife joined in the complaint, alleging that defendant proximately caused her a loss of plaintiff's services. On November 16, 1990, the jury rendered a verdict in favor of plaintiff in the amount of $2,505; the jury awarded plaintiff's wife nothing. Following posttrial motions, plaintiff and his wife appealed the judgment of the trial court as inadequate; defendant did not appeal. In an opinion rendered on September 5, 1991, this court affirmed the jury's verdict in favor of plaintiff, but reversed the jury's failure to award damages to plaintiff's wife. Moore v. Jock (Sept. 15, 1991), Franklin App. No. 91AP-102, unreported, 1991 WL 355138. Plaintiff appealed to the Supreme Court; defendant filed a cross-appeal; the Supreme Court refused *Page 415 to direct this court to certify its record (1992), 63 Ohio St. 3d 1411, 585 N.E.2d 835. On remand to the trial court, plaintiff filed a motion for postjudgment interest in the amount of $282.50, calculating the interest from the date the trial court originally entered judgment in plaintiff's favor, January 25, 1991. The trial court denied plaintiff's motion, finding that the delay in payment was attributable to plaintiff's appeal. Plaintiff appeals from that judgment, contending that the trial court erred in refusing to grant postjudgment interest pursuant to R.C. 1343.03(A). R.C. 1343.03(A) provides: "* * * [W]hen money becomes due and payable upon any bond, bill, [or] note * * * and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of tortious conduct or a contract or other transaction, the creditor is entitled to interest at the rate of ten per cent per annum, and no more, unless a written contract provides a different rate of interest in relation to the money that becomes due and payable, in which case the creditor is entitled to interest at the rate provided in that contract." In Warren/Sherer Div. v. Store Equip. Co. (Sept. 27, 1984), Franklin App. No. 84AP-41, unreported, 1984 WL 5918, this court addressed the interpretation of R.C. 1343.03 under circumstances similar to those herein. Specifically, in Warren/Sherer, defendant was awarded a net judgment of $36,149.01 following a jury trial on both a claim and counterclaim. Judgment was entered accordingly, and defendant appealed to this court, asserting that the trial court had erred in not submitting the issue of punitive damages to the jury. The judgment debtor, plaintiff Warren/Sherer Division, cross-appealed, asserting four assignments of error with respect to the judgment in compensatory damages. On appeal, this court overruled all assignments of error and affirmed the judgment of the trial court. Thereafter, the plaintiff therein sought a determination from the trial court that no postjudgment interest be awarded on the judgment pending appeal. The trial court agreed, and the defendant appealed. In discussing the propriety of interest under R.C. 1343.03, this court noted: "Plaintiff relies upon cases, stating that a creditor cannot enhance its judgment by gaining additional interest on it by filing an appeal therefrom. However, a debtor may stop the running of interest by a tendering unconditional payment in full of a judgment rendered against him. In that event, if the judgment is appealed and affirmed, no interest would accrue during the time of appeal. See Interest Pending Appeal, 15 A.L.R. 3d 411, 418-19, for the view that we adopt in interpretation ofR.C. 1343.039(A) [sic] and the common law that `a judgment *Page 416 creditor appealing on the ground of inadequacy from a judgment inhis favor is entitled to interest, under a general intereststatute providing for interest on judgments from time of entryto time of payment, for the period during which his appeal waspending, notwithstanding the judgment was affirmed, at least in the absence of waiver or conduct estopping him from claiming interest, such as bad faith or want of diligence in prosecution of the appeal, and in the absence of a tender by the judgment debtor.' The reason for adopting this rule is that the debtor has the option of either tendering unconditional payment to stop the running of interest or having the use of the money during appeal, which generally should at least be of equal value to the legal rate of interest." (Emphasis added.) Id. at 4. Application of the forgoing explanation of R.C. 1343.03(A) would entitle plaintiff to some postjudgment interest on the judgment awarded him in the trial court, as the record contains no evidence of plaintiff's waiver or conduct estopping him from claiming interest, nor does it reflect an immediate tender of payment from defendant. Defendant, however, contends that postjudgment interest herein would be inequitable, as any delay in payment was occasioned by plaintiff's appeal of the trial court judgment, not by defendant's dilatory tactics. In support of his contentions, defendant relies on an unreported decision from the Erie County Court of Appeals, Fowler v. Wilford (May 8, 1987), Erie App. No. E-86-50, unreported, 1987 WL 11106, wherein the court of appeals tolled the award of postjudgment interest pending an appeal initiated by the judgment-creditor. However, subsequently the same court in Viock v. Stowe-Woodward Co. (1989), 59 Ohio App. 3d 3, 569 N.E.2d 1070, relied on the language of Warren/Sherer in granting postjudgment interest where both parties appealed. In an attempt to reconcile those cases as well as Warren/Sherer, defendant asserts that the key to determining whether an award of postjudgment interest is appropriate lies in which party appeals and, if both do, which appeals first. The rationale of Warren/Sherer, however, does not lie in such distinctions. Rather, this court therein adopted the policy that a judgment-creditor who appeals is entitled to interest in the absence of waiver or conduct estopping him from claiming interest and in the absence of a tender by the judgment-debtor. Thus, as defendant concedes, regardless of which party appeals first, no inequity accrues to the judgment-debtor who has the ability to toll postjudgment interest by the tender of unconditional payment. Given the foregoing, including this court's interpretation of R.C. 1343.03(A) adopted in Warren/Sherer, the trial court erred in refusing to grant plaintiff postjudgment interest from the date the trial court entered judgment in plaintiff's favor, January 25, 1991. *Page 417 Defendant asserted in oral argument that he had tendered payment to plaintiff, thereby eliminating any award of postjudgment interest. However, the record reflects only that on June 10, 1992, following plaintiff's motion for postjudgment interest, defendant paid the original judgment, but not any accruing interest. Defendant's payment of the original judgment as of June 10, 1992 is pertinent to the calculation of postjudgment interest required under our decision herein; it does not however totally eliminate an award of postjudgment interest. See Shaffer v.Cornwell (Dec. 18, 1990), Franklin App. No. 90AP-772, unreported, at 7-10, 1990 WL 212564. To the extent defendant asserts that he tendered full payment before June 10, 1992, and further urges that we grant his oral motion under App.R. 9(E) to supplement the record with such documentation, defendant's failure to submit the matter to the court in writing precludes further consideration of his offer of additional evidence; moreover, App.R. 9(E) does not support defendant's request. In light of the foregoing, we sustain plaintiff's single assignment of error. The judgment of the trial court is reversed and this case is remanded to the trial court with instructions to enter satisfaction of judgment only after plaintiff has paid or tendered the amount of the judgment with interest added thereto at the legal rate set forth in R.C. 1343.03 from the time that judgment was entered on January 25, 1991, until payment or tender of payment of the judgment. Judgment reversedand cause remandedwith instructions. PETREE and STRAUSBAUGH, JJ., concur. DEAN STRAUSBAUGH, J., retired, of the Tenth Appellate District, was assigned to active duty under authority of Section6(C), Article IV, Ohio Constitution. *Page 418

2016-07-06 06:42:26.805753+00

Brogan

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3 OPINION Defendant-Appellant Christopher R. Nelloms was found guilty of one count of felonious sexual penetration and seven counts of rape of his daughter under the age of thirteen. The court sentenced Nelloms to life on each count, four to be served consecutively, and the other four to be served concurrently to those counts. In his direct appeal of these convictions, we reversed four of the counts which occurred in Kentucky due to lack of subject matter jurisdiction. We remanded for resentencing on the four remaining counts, and reminded the trial court of its obligations under North Carolina v. Pearce (1969), 395 U.S. 711, 89 S. Ct. 2072 if it imposed a harsher sentence on remand. At the sentencing hearing on remand, the trial court stated: Mr. Nelloms, as you know, the Court of Appeals decided that the crimes that were committed in Kentucky did not have sufficient nexus to Dayton to vest this Court with jurisdiction over you for those events. The Court of Appeals, however, did not say those crimes were not committed. The jury here said that the crimes were committed and that you committed them. The jury considered the connection between what you did in Kentucky and what happened here in Dayton. The jury found that the force that you used against the victim was the psychological control that a parent has over a child and that the control continued here in Dayton and related back to what you did in Kentucky. To the extent that the Court of Appeals found those facts differently from the jury is something that the Court of Appeals is going to have to explain in this case. The fact remains, however, that all 10 crimes were committed.1 The Court's original sentence here was that four consecutive life terms was the appropriate sentence for punishment for this conduct. This fact is no less true here today than it was on February 12, 1999. *Page 4 The trial court then proceeded to resentence Nelloms to four consecutive life sentences on the remaining counts. This resulted in the same aggregate sentence Nelloms received originally. Nelloms has appealed this sentence raising the following assignment of error: The trial court erred to the prejudice of Mr. Nelloms when it resentenced in violation of his Constitutional rights. Nelloms does not argue that the sentence imposed on remand violated the sentencing statutes. Instead, he contends that the sentence conflicted with the principles of North Carolina v. Pearce (1969), 395 U.S. 711,89 S. Ct. 2072. After a successful post-conviction relief petition, Pearce was retried, reconvicted and resentenced to a term which resulted in a longer period of incarceration than he would have served on his original sentence. Id. at 713, 89 S.Ct. at 2074. The Supreme Court held that a trial court violates the Due Process Clause of the Fourteenth Amendment when it resentences a defendant to a harsher sentence, motivated by vindictive retaliation. Id. at 724, 89 S.Ct. at 2080. Further, a presumption of vindictiveness arises when the same judge resentences a defendant to a harsher sentence following a successful appeal. Id. at 726, 89 S.Ct. at 2081. In order to overcome the presumption, the trial court must make affirmative findings on the record regarding conduct or events which occurred or were discovered after the original sentencing. Id.; Wasman v. United States (1984), 468 U.S. 559, 104 S. Ct. 3217. This means that a trial court may impose an enhanced sentence, but it must demonstrate that it was not motivated by vindictiveness toward the defendant for exercising his rights. Pearce, 395 U.S. at 723,89 S.Ct. at 2079. The issue in this case is after dismissal of some counts, whether the sentence imposed on remand altering the remaining counts from concurrent to consecutive, without exceeding the aggregate original sentence constitutes a harsher sentence as contemplated in Pearce. This specific issue is one of first impression in Ohio. One Ohio court has partially touched on this topic and impliedly found that resentencing with consecutive sentences without justification does violate the principles of Pearce. State v. Pearson (1998), 130 Ohio App. 3d 577, 586. However, in Pearson, the consecutive sentences resulted in a longer aggregate amount of incarceration than originally sentenced. Id. Therefore, Pearson is not directly on point. See, also, Kopko v. State (Fla.App. 1998), 709 So. 2d 159 (changing from concurrent to consecutive sentences on remand caused increase in aggregate sentence, and therefore violated Pearce). We were only able to find one state appellate court which found consecutive sentences on remand following concurrent original sentences implicated Pearce, *Page 5 regardless of the aggregate length of the sentences. In State v. Coggins, a Tennessee appellate court held that even though the aggregate sentence decreased from 105 years to 47 years, because some counts that had originally received concurrent sentences were changed to consecutive on remand, Pearce applied. (Nov. 21, 1995), Davidson App. No. 01C01-9503-CR-00076, unreported, at p. 2. Aside from Coggins, we found no other cases supporting this theory. Most courts that have encountered this question have held provided the aggregate sentence imposed on remand for the remaining counts does not exceed the aggregate sentence imposed originally for all counts, Pearce does not apply. See, United States v. Soto-Alvarez (C.A.1 1992),958 F.2d 473, certiorari denied (1990), 493 U.S. 1030, 110 S. Ct. 742 (finding Pearce did not apply in restructured sentencing package); United States v. Mancari (C.A.7 1990), 914 F.2d 1014, certiorari denied (1991),499 U.S. 924, 111 S. Ct. 1320 (finding no error when the court resentenced the defendant to the same period of time after the only count originally receiving a prison term was vacated); United States v. Gray (C.A.4 1988), 852 F.2d 136 (finding the second aggregate sentence of eight years was not harsher than the original sentence of twenty-five years even though some counts were changed from concurrent to consecutive);United States v. Shue (C.A.7 1987), 825 F.2d 1111, certiorari denied (1987),484 U.S. 956, 108 S. Ct. 351 (resentencing from five to twenty years on a specific count did not implicate Pearce since the total resentence did not exceed the original aggregate sentence); United States v. Hagler (C.A.9 1983), 709 F.2d 578, certiorari denied (1983), 464 U.S. 917,104 S. Ct. 282 (holding that Pearce was not implicated when the defendant was resentenced to the same amount of incarceration and probation even though the incarceration was applied to a different count); State v. Duffey (1996), 222 Ga. App. 802, 476 S.E.2d 89 (finding Pearce did not apply because even though some counts changed from concurrent to consecutive, the aggregate sentence had not increased); Johnson v. United States (C.A.D.C. 1993), 628 A.2d 1009 (finding no error in a longer sentence for a lesser count on remand when the entire package did not exceed the original sentence); Alvarado v. State, No. A01A0741 (Ga.App. Mar. 28, 2001), unreported (converting a sentence from concurrent into consecutive without increasing the total length of the sentence was not a more severe sentence as contemplated in Pearce). All of the aforementioned cases support the view that Pearce only applies when the resentence results in a longer sentence than originally imposed. In multi-count situations, the judge imposes a sentence as a package, taking into consideration a myriad of factors. Mancari,914 F.2d at 1019. Aside from the crimes being punished, the court considers "the accused's actual conduct during the *Page 6 criminal enterprise, as well as his life, health, habits and background." Id. at 1020. These factors are considered because "[s]ociety has a strong interest in ensuring that, in our criminal jurisprudence, punishment `will suit not merely the offense but the individual defendant.'" Id., citing Wasman, 468 U.S. at 564, 104 S.Ct. at 3220. See, also, Alvarado, Ga. App. No. A01A0741, quoting Duffey, 476 S.E.2d at 91 ("[T]he fact that two * * * counts were vacated does not lessen the severity of the crimes against [this child], and it certainly does not require the trial court to reduce appellant's sentence for the remaining counts * * *.", (Emphasis in original). Removing one or more counts from the package through a successful appeal does not necessarily alter these other factors when the court resentences the defendant. Mancari, 914 F.2d at 1020. Instead, when one or more counts constituting the original sentence are vacated, the trial court should be able to review what remains and reconstruct the sentence in light of the original sentencing plan. Soto-Alvarez,958 F.2d at 480, citing United States v. Pimiento-Redondo (C.A.1 1989), 874 F.2d 9,14, certiorari denied (1989), 493 U.S. 890, 110 S. Ct. 233. In other words, "if it is reasonably clear that the judge reshaped the impost merely as a means of bringing original sentencing intentions to fruition after some new development had intervened, a need for employing the Pearce presumption never arises." Id., quoting Pimiento-Redondo,874 F.2d at 13. We agree with the reasoning of these courts. Nelloms did not receive an aggregate sentence on remand that was longer than he received originally. In fact, the length of his sentence remained exactly the same. Although the court at the resentencing hearing may have expressed some dissatisfaction with the outcome of the appeal, it also explained the reasoning for again imposing four consecutive life sentences. The trial court could not sentence Nelloms for the rapes that occurred in Kentucky, but it could still consider those actions by defendant when fashioning a sentence. Other crimes and acts committed by the defendant can be considered by the trial court when it imposes sentence. See, State v. Cooey (1989), 46 Ohio St. 3d 20, 35, certiorari denied (1991),499 U.S. 954, 111 S. Ct. 1431. In this case, the trial court had a jury verdict finding that Nelloms in fact committed these other crimes. The trial court properly considered this fact when fashioning a sentence that would not only fit the crimes being sentenced, but also fit the defendant. Additionally, the trial court did not indicate at the original sentencing any specific reason why certain counts were to run concurrently and certain counts were to run consecutively. Evidently, the court concluded that Nelloms deserved four consecutive life sentences, so the counts were fashioned to obtain that result. *Page 7 The court could just as easily have sentenced the Ohio counts as consecutive and the Kentucky counts concurrent to those. Cf., Mancari,914 F.2d at 1019. The court should not be prohibited from imposing the same sentence it originally intended just because it chose the wrong counts to run consecutively. "The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." United States v. DiFrancesco (1980),449 U.S. 117, 135, 101 S. Ct. 426, 436. Based on the foregoing, we hold that when one or more counts of a multi-count conviction are vacated and remanded, a court does not violate the principles of Pearce as long as the aggregate length of the new sentence does not exceed the total length of the original sentence. The sentence for each individual count need not remain the same, provided defendant's total sentence does not increase. We find that the trial court sentenced Nelloms on remand to the same aggregate sentence as originally imposed, and therefore North Carolina v. Pearce does not apply. Accordingly, Nelloms' sole assignment of error is overruled. __________ BROGAN, J. WOLFF, P.J., and GRADY, J., concur. 1 This is a misstatement by the trial court that it later clarified. Although the original indictment contained ten counts, the state nolled Count VII and Nelloms was found not guilty of Count IV.

2016-07-06 06:42:26.949599+00

Corrigan

As I would affirm the trial court's finding that the appellant should be classified as a sexual predator, I must respectfully dissent from the majority opinion. The sexual predator hearing at issue was held based upon the recommendation of the Ohio Department of Rehabilitation and Corrections (ODRC) as the appellant was, and continues to be, incarcerated at the Grafton Correctional Institution. The ODRC recommended that the appellant be classified as a sexual predator. At the hearing the state presented evidence from the record of the underlying crimes for which the appellant was convicted by a jury (five counts of rape, kidnapping and gross sexual imposition), including the victim's statement. The state also presented evidence of the appellant's lackluster prison record which included numerous citations for disobeying orders and aggressive conduct. In contrast, the appellant presented evidence that he had completed an anger management program and two sexual offender programs. The appellant also *Page 100 introduced evidence that the appellant had been screened using the Abel Assessment Test and that based on the results thereof, he was not likely to re-offend. The trial court determined that the appellant should be classified as a sexual predator finding that: I am particularly disturbed by the fact that there were multiple assailants of the victim of which your client certainly was one. They kidnapped this victim, beat this victim, not only threatened her with force, but actually used force against her. The prison record which includes a disciplinary violation shows a repeat pattern of inability to comply with authority, and that combined with his response to the social desirability scale of refusing to admit that he cannot, that he is not imperfect, that he does not sometimes become angry, that he occasionally lies about little things, clearly indicates to me that he is out of touch with reality as I don't think any human being would fairly answer that question in the negative. Therefore, the court adjudicates you to be a sexual predator, Mr. Winchester. A trial court need not list all of the factors in R.C. 2950.09(B)(2) supporting a sexual predator determination, but rather need only consider such factors. State v. Griffin (2000), 140 Ohio App. 3d 433; State v. Goodall (July 6, 2000), Cuyahoga App. No. 76491, unreported; State v. Tracy (May 20, 1998), Summit App. No. 18623, unreported. Simply because certain factors do not apply to a particular defendant does not mean he or she cannot be adjudicated a sexual predator. Id. R.C. 2950.09(B)(3) states: After reviewing all testimony and evidence presented at the hearing conducted under division (B)(1) of this section and the factors specified in division (B)(2) of this section, the judge shall determine by clear and convincing evidence whether the offender is a sexual predator. * * * If the judge determines by clear and convincing evidence that the offender is a sexual predator, the judge shall specify in the offender's sentence and the judgment of conviction that contains the sentence that the judge has determined that the offender is a sexual predator and shall specify that the determination was pursuant to division (B) of this section. * * * Clear and convincing evidence is that evidence which will provide in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. State v. Eppinger (2001), Ohio St.3d 158, 164; Cincinnati Bar Assoc. v. Massengale(1991), 58 Ohio St. 3d 121, 122, quoting Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. While clear and convincing evidence is more than a mere *Page 101 `preponderance of the evidence,' it does not rise to the level of evidence beyond a reasonable doubt. Id. The majority chooses to substitute its judgment as to the relevancy of certain evidence for that of the trial court and, in so doing, exceeds its proper scope of review. This court's function is not to weigh the evidence presented at the sexual predator hearing, but rather is to determine whether clear and convincing evidence was adduced to support the determination. In this manner our review of a sexual predator classification is analogous to reviewing a claim that a verdict is against the manifest weight of the evidence. Thus, even though this court has a duty to independently review the evidence, we should give deference to the trial court's determinations and decline to substitute our judgment for that of the trial court. State v. DeHass (1967),10 Ohio St. 2d 230. The majority opinion fails to accord the proper deference to the trial court's evidentiary determinations and blatantly substitutes this court's judgment for that of the trial court. The facts of this case are very similar to those presented to the court in State v. Griffin, supra, 140 Ohio App. 3d 433. In Griffin, this court clarified that our holding in State v. Ward (1999), 130 Ohio App. 3d 551, should not be construed as prohibiting a trial court from considering the facts underlying an offender's conviction in making its classification determination: Contrary to the assertions contained in the appellant's brief filed with this court, the appellant's sexual conduct, the extreme cruelty which he displayed and his lack of remorse are evidence, per R.C. 2950.09(B)(2), that the appellant is likely to re-offend in the future. The appellant asserts that a determination as to whether an offender is likely to re-offend should be made independent of the factors listed by the legislature in R.C. 2950.09(B)(2)(a)-(j), and states that additional evidence, beyond the statutory factors, must be presented to support a sexual predator classification. We do not believe that such a requirement can be found in the statute. The legislature clearly believed that sexual conduct of a violent and bizarre nature on the part of an offender, the exhibition of extreme cruelty in the commission of a sexual offense and a documented pattern of abuse and other aberrant behavioral characteristics correlated with an increased likelihood that an offender will engage in the future in one or more sexually related offenses. These characteristics are evidence of an increased likelihood of recidivism. Thus, we reject the appellant's contention that there is a lack of evidence that the appellant is likely to re-offend. This court's statement in Ward that committing a single sexually oriented offense is not proof, without further evidence or other compelling facts, that the offender is `likely to engage in the future in one or more sexually oriented *Page 102 offenses,' should not be interpreted as an absolute requirement that additional evidence beyond the facts of the underlying crime be presented in order to justify a sexual predator determination. In this case, as well as in many other similar cases, recent evidence of this nature is unlikely to exist given the fact that the appellant has been incarcerated, and thus in a strictly controlled environment, since 1986. Wardsimply stands for the proposition that a certified copy of a conviction is not sufficient to sustain the burden of proof necessary to justify a sexual predator determination. To cite Ward, as does the majority, for the proposition that compelling facts beyond the circumstances of the underlying offense must exist before an offender can be classified as a sexual predator is incorrect. Where, as was the case here, the state presents additional evidence beyond the proof of the conviction consisting of specific details of the underlying offense, a victim's statement, and the appellant's shoddy prison disciplinary record, Ward presents no impediment to a classification as a sexual predator. Per the plain language of the statute, if the offense in question had been committed subsequent to January 1, 1997, the indictment against the appellant would have contained a sexually violent predator specification and the appellant would have been adjudicated a sexual predator upon his conviction on the underlying counts of rape and kidnapping with the purpose of gratifying the sexual desires of the offender. Surely, this sheds some light on the legislative intent of the statute in regards to the weight to be given to evidence arising from the commission of the underlying offenses(s) during the course of a sexual predator classification hearing. This court has also held that circumstances of a single offense may be enough to justify a sexual predator determination where an assailant takes unconscionable advantage of his victim or uses his superior size, or strength to dominate a weaker person. State v. Gross (Aug. 17, 2000), Cuyahoga App. No. 76836, unreported; see, also, State v. Griffin, supra,140 Ohio App.3d at 439, 442. Each of these factors are present in the instant case. The majority opinion aptly recites the facts and circumstances underlying the appellant's convictions, but inexplicably fails to reach the logical conclusion that they are sufficient to justify the trial court's sexual predator classification. It cannot be disputed that the appellant displayed extreme cruelty, even by sexual offense standards, in the commission of this offense. The victim was kidnapped, she was repeatedly raped and otherwise degraded by the appellant, the three culprits argued on more than one occasion in front of her as to whose turn it was to sodomize the victim and the appellant personally attempted to force the victim to engage in prostitution in order to earn him money. I believe that the majority opinion places an undue emphasis on the Abel Assessment report which was introduced into evidence. Initially, it should be *Page 103 noted that the report was interpreted by a licensed social worker, not a psychiatrist or a psychologist. It is doubtful that the person who prepared the report could have been qualified as an expert even if she did testify at the hearing, which she did not. The majority opinion refers to this social worker as an expert on six separate occasions and evidently assumes that her expertise in predicting criminal behavior far surpasses that of the trial judge who presided over the hearing and whose evaluation of the evidence is given scarce consideration by the majority. There is no background provided within the report, or elsewhere in the record, as to the methodology employed, the number of such assessments conducted by this individual or the degree of likelihood upon which the conclusions were drawn. It is unclear how much time, if any, this particular social worker spent with the appellant in the course of preparing this report. Thus, the majority's reference to this person as an expert is somewhat dubious. Almost all of the information interpreted in the report was provided by the appellant himself. The purported objective measurements of the appellant's sexual interests are never explained. It is not at all clear that these objective measures of the appellant's purported sexual interest which consisted of 22 slide categories depicting children, teens, and adults both Caucasian and African-American, plus depiction of various deviant sexual behaviors are in any way truly objective. In filling out the questionnaire the appellant either failed to admit or denied that he had engaged in rape. This display of self-serving evasiveness on the part of the appellant was probative evidence properly considered by the trial court in reaching its determination and also distorted, if not flat out invalidated, the results of the assessment. Viewed in this context, the trial judge's observation that the appellant seemed out of touch with reality because he is prone to lie about little things was actually a considerable understatement. The appellant claimed on the sex offender specific questionnaire portion of the report that his sexual history consisted of one consensual act with a stranger at the age of twenty-three. Nobody familiar with the underlying facts of the appellant's convictions could possibly believe such a patently implausible claim. Yet, the social worker who prepared the report in question not only accepted this assertion, but utilized it in reaching her conclusions. The report's objective findings merely state that appellant has a sexual interest in adult and adolescent females and does not show a sexual interest in sadistic sexual behavior. This is not equivalent to a finding that he is not likely to re-offend. Similarly, the report's conclusion states [h]e does not appear to have an interest in sadistic sexual behavior. Therefore, it appears that his actions may have been motivated by other factors. The report makes no further *Page 104 effort to explain or determine what these other factors may be or why the public should not be concerned about them upon the appellant's release. Nowhere in the report does the social worker render an opinion that appellant is unlikely to re-offend as is inaccurately stated in the majority opinion. Even if the social worker had included such a conclusion of law in her report, the trial court would have been under no obligation to accept it. The majority opinion confers Holy Grail like status upon this rudimentary interpretation of a questionnaire by a social worker, implying that the trial court was obligated to accept the results of the assessment and concomitantly to decline to classify the appellant as a sexual predator. In so doing, the majority disregards traditional evidentiary maxims concerning the functions of the finder of fact. It is axiomatic that a finder of fact is free to believe some, all or none of the evidence presented. The majority states [t]he trial court simply ignored the expert opinion regarding appellant's likelihood of re-offending. I submit that rather than simply ignor[ing] the results of the Able Assessment, the trial court, as was its province, merely chose not to adopt the results. This decision by the trial court was reasonable given the report's questionable methodology coupled with the fact that the interpreter of the report did not even testify at the hearing. I am also somewhat perplexed by the majority's conclusory assertion that appellant's prison disciplinary record * * * is obviously not probative of the issue of whether the appellant is likely to engage in the future in one or more sexually related offenses.2 The appellant's prolonged pattern of misconduct and defiance of authority is indeed probative of the issue of whether he is likely to re-offend upon being released. The legislature apparently did not share the majority's opinion concerning the irrelevance of such evidence as the relevant factors found in R.C. 2950.09(B)(2) for the trial court to consider in determining whether an offender is a sexual predator include [t]he offender's prior criminal conduct regarding all offenses, including, but not limited to, all sexual offenses, and [i]f the offender has been convicted of or pleaded guilty to any criminal offense. (Emphasis sic.) See R.C. 2950.09(B)(2)(b) and R.C. 2950.09(B)(2)(f). The majority's cavalier dismissal of all evidence of aberrant behavior not sexual in nature is clearly inconsistent with the dictates of R.C. 2950.09, as well as the statute's legislative intent. Evidence of such behavior may *Page 105 be properly considered by the trial court in making its determination whether an offender should be classified as a sexual predator. I must also take exception to the majority's vacation of the order of the trial court without remanding the matter for further proceedings. As the majority is well aware, the intended effect of their order will be to prevent the appellant from being classified as a sexually oriented offender or as a habitual sexual offender on appeal. By operation of law, the appellant should be classified, at the very least, as a sexually oriented offender with the attendant registration requirements. A sexually oriented offender is defined as a person who has committed a "sexually oriented offense" as defined in R.C. 2950.01(D), and does not meet the definition of either a habitual sex offender or sexual predator. The appellant's convictions herein for rape and kidnapping satisfy the criteria for committing a sexually oriented offense, and thus, the appellant is, at a minimum, a sexually oriented offender as a matter of law. R.C. 2950.01(D)(1),(3) and (4). Yet, for reasons the majority chooses not to disclose, they opt to vacate the trial court's finding without remanding the matter for further proceedings and in so doing essentially gives the appellant a free pass. There can be but little doubt that this was not the intention of the legislature when it enacted the sexual predator statute. As the majority is also undoubtedly aware, the Supreme Court has also weighed in on the issue of whether a remand for a new sexual predator classification hearing constitutes double jeopardy. Because such a hearing is civil, rather than criminal in nature, the concept of double jeopardy is inapplicable. State v. Gowdy (2000), 88 Ohio St. 3d 387, 398. The Supreme Court, as well as other courts throughout the state, have consistently determined that the proper remedy is remand for a new hearing where it has been determined upon appeal that there is insufficient evidence to support sexual predator classification. State v. Eppinger (2001), 91 Ohio St. 3d 158, 167; State v. Cook (1998),83 Ohio St. 3d 404, 425; State v. Ward (1999), 130 Ohio App. 3d 551, 563, State v. Allen (Apr. 20, 2001), Hamilton App. No. C-000721, unreported; State v. Burke(Sept. 21, 2000), Franklin App. 00AP-54, unreported. I am at a loss to explain this abrupt procedural deviation in which the majority engages. Accordingly, I would affirm the trial court's classification of the appellant as a sexual predator. 2 After dismissing the prison record as non-probative, the majority later states that [t]he evidence presented by the state related solely to the appellant's underlying conviction. The fact that the prison disciplinary record was introduced at the hearing obviously belies the assertion that evidence beyond the underlying conviction was not presented. *Page 106

2016-07-06 06:42:25.837265+00

OPINION {¶ 1} This is a disability discrimination case. Appellant, Gary Minshall ("Minshall"), appeals the entry of summary judgment against him. Appellee FirstEnergy Nuclear Operating Company ("FirstEnergy") was Minshall's employer up until his discharge. Though named as a party, Appellee The Cleveland Illuminating Company ("CEI") is not at all connected with any of the operative facts herein. {¶ 2} Minshall was employed as a Senior Reactor Operator ("SRO") at the Perry Nuclear Power Plant when he was terminated on February 2, 2004. He had been employed there since August 18, 1982. {¶ 3} FirstEnergy is licensed by the Nuclear Regulatory Commission ("NRC") to operate the Perry Nuclear Power Plant. {¶ 4} In his complaint for disability discrimination, filed pursuant to Chapter 4112 of the Revised Code, Minshall alleged that he had the disability of alcoholism and that his employer failed to accommodate his disability. {¶ 5} The essence of Minshall's claim is that he was wrongfully discharged based on a statutory right created under Chapter 4112 of the Revised Code; and the essence of FirstEnergy's defense is that, whether Minshall has a valid disability claim or not, because of the overriding safety issues, federal law and regulations under the Atomic Energy Act1 preempt state law and control employee disciplinary procedures in a nuclear power plant. If FirstEnergy is correct in its assertion concerning federal preemption, federal law and regulations permit his employer to terminate him if he is in violation of those laws and/or regulations. We disagree that federal preemption exists in this case. We are mindful of the "tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability,"2 but for the reasons indicated in the following analysis, we stand with the United States Supreme Court and "tolerate whatever tension there was between them."3 {¶ 6} While we conclude that Minshall may proceed with his disability discrimination claim, our review is limited to the issue of federal preemption, and is not to be construed as a consideration of the merits of the disability discrimination claim. The disability discrimination claim is left for further adjudication by the trial court. {¶ 7} FirstEnergy and CEI filed a motion for judgment on the pleadings, which the trial court converted to a motion for summary judgment. In their motion, appellees contended that Minshall's claim for disability discrimination was preempted by federal law. In response, Minshall contended that he was qualified to perform the position of SRO, that his alcoholism was a disability, and that his employer failed to accommodate his disability. Minshall further argued that, before the question of federal law preemption is reached, his employer must demonstrate that he was a safety risk. {¶ 8} The record reflects two alcohol-related incidents, which affected Minshall's employment. {¶ 9} The first incident took place on September 17, 2002. As he drove into the vehicle inspection facility to begin his 4:00 p.m. shift, the security officer on duty decided to conduct a random search of his vehicle. An empty beer bottle was discovered in his car. He was administered blood alcohol content tests that same day, and a detectable level of alcohol was noted in his blood. The result was lower than a "positive test result," which would have resulted in immediate disciplinary action and possible termination. Minshall was immediately assessed by supervisors to determine his fitness for duty. He related that he had consumed at least eleven beers between midnight and 3:00 a.m. that same day. He was supposed to be on call for emergency responses as of 8:00 a.m. that day. His supervisors determined that he was potentially unsuitable to be fit for duty both during the "on call" period (8:00 a.m. to 4:00 p.m.) and during his regular shift that day (4:00 p.m. to midnight). As a result of this incident, Minshall's unescorted access to vital areas of the plant was denied for a four-week period, but then restored after he completed a psychological evaluation and FBI background check. {¶ 10} The second incident took place one year later, on September 25, 2003. Minshall fell asleep while driving and ran into a building near his home. He admitted to consuming approximately eleven beers during the ten hours prior to the accident. He was not on duty during this period. A blood test administered at the hospital gave a reading of .20% blood alcohol content. He was cited for operating a vehicle while under the influence and failure to control his vehicle. He was convicted in municipal court of the lesser offense of disregard for safety and failure to control, because the blood draw at the hospital was faulty. On October 1, 2003, his unescorted access to vital areas of the plant was denied. Minshall was required to undergo a psychological evaluation, as a result of which he was deemed unacceptable for unescorted access to protected or vital areas. The psychologist recommended in his report that Minshall be reevaluated after one year "in order to determine whether he is psychologically acceptable to be considered for restoration of his unescorted access to a nuclear power plant." On February 2, 2004, he was terminated due to his "inability to maintain unescorted access to our plant." {¶ 11} The record reflects that Minshall worked outside the protected or vital areas during the periods September 17, 2002 through October 17, 2002, and September 26, 2003 through February 2, 2004. {¶ 12} Minshall raises two assignments of error, the first of which is: {¶ 13} "The trial court committed reversible error by granting defendants' motion for summary judgment." {¶ 14} Pursuant to Civ.R. 56(C), summary judgment is proper 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) 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. A party seeking summary judgment must point specifically to some evidence that affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims.4 In response, the nonmoving party must set forth specific facts that demonstrate that there is a genuine factual issue to be tried. He or she may not rest on conclusory statements or the bare allegations of the complaint.5 {¶ 15} The trial court converted FirstEnergy's motion for judgment on the pleadings to a motion for summary judgment. In doing so, the trial court erroneously permitted matters outside the pleadings to be considered. In the case of Peterson v.Teodosio, the Supreme Court of Ohio held that a motion for judgment on the pleadings pursuant to Civ.R. 12(C) allows the trial court to consider only the allegations in the pleadings, and not matters outside the pleadings.6 As stated by that court: {¶ 16} "Since the judgment below was entered upon the pleadings, pursuant to Civ.R. 12(C), appellee herein was entitled to have all the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, construed in her favor as true. 2A Moore's Federal Practice 2342, Paragraph 12.15; 5 Federal Practice and Procedure, Wright and Miller, Section 1368. Civ.R. 12(C) is a continuation of the former statutory practice and presents only questions of law, and determination of the motion for judgment on the pleadings is restricted solely to the allegations in the pleadings."7 {¶ 17} Anderson's Ohio Civil Practice notes that Ohio, unlike the federal rules, does not have a provision for automatic conversion of a motion for judgment on the pleadings, if accompanied by matters outside the pleadings, to a motion for summary judgment.8 "A defense in bar (on the merits) accompanied by affidavits or outside materials, if served after the pleadings are closed, should be served in the form of a motion for summary judgment in order that the opposing party may be protected by the safeguards governing the motion for summary judgment."9 {¶ 18} Civ.R. 12(B) does provide for conversion to a motion for summary judgment where a party has filed a motion pursuant to Civ.R. 12(B)(6), asserting that the plaintiff has failed to state a claim upon which relief can be granted, and matters are presented outside the pleading and not excluded by the court. In such a case, "the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56."10 {¶ 19} Nevertheless, Minshall did not bring this irregularity in procedure to the attention of the trial court, though he now asserts it as part of his first assignment of error. However, having failed to raise this irregularity in the trial court, we deem it to be waived.11 In fact, once the trial court converted the motion for judgment on the pleadings to a motion for summary judgment, Minshall responded accordingly, and submitted materials relevant to a motion for summary judgment. He did move to strike certain materials during the exercise, but the motion sought to exclude portions of the materials on the ground of hearsay, and not to rectify the trial court's procedural error. {¶ 20} Similarly, in the case of State ex rel. Nelson v.Russo, the Supreme Court of Ohio held that though the court of appeals erred in converting a motion to dismiss to a motion for summary judgment without formal notification to the parties, the error was considered harmless, because the appellate court could have taken judicial notice of the extrinsic materials and upheld the trial court's action without converting the motion to one for summary judgment.12 That court found the procedure to be somewhat irregular, but it was not prejudicial error.13 {¶ 21} In either case, whether our review considers the proceedings below in terms of motion for judgment on the pleadings or as a motion for summary judgment, our decision will rest upon whether FirstEnergy is entitled to judgment as a matter of law. Our standard of review is de novo.14 {¶ 22} In one of its memoranda in support of its motion for summary judgment, FirstEnergy summed up its position as follows: {¶ 23} "[I]t is undisputed that [Minshall's] conduct, not his alcoholism, lead [sic] to his termination. Moreover, [Minshall] was unable to perform the essential functions of his job as a SRO with or without accommodation because he was forbidden from access to the vital areas of the plant where he would need to be in order to perform that position. Accordingly, [Minshall's] claim of handicap discrimination under Chapter 4112 fails as a matter of law." {¶ 24} In his response to the motion for summary judgment, Minshall admits that he is an alcoholic, that as of October 2003, he participated in treatment, attended two to three Alcoholics Anonymous meetings per week, did not drink, and satisfactorily performed his job, until he was terminated in February 2004. Though he had worked as an SRO in the operations department, it was normal procedure for someone in his position to work in the training building ("TEC") doing "impact reports" on a rotation basis. In fact, that is what FirstEnergy had him doing between October 2003 and February 2004. One does not require unescorted access to work in the training building. {¶ 25} FirstEnergy raises the issue of federal preemption and, in support thereof argues, "[b]ecause Mr. Minshall's claim — that he was disabled due to his alcoholism and that FirstEnergy failed to accommodate that disability — falls squarely within the `safety' aspect over which the federal government has occupied the entire regulatory field, he may not maintain this cause of action — disability discrimination under Ohio law." {¶ 26} The Supreme Court of Ohio addressed the issue of federal preemption with respect to nuclear power in the case ofCleveland v. Pub. Util. Comm.15 The issue in that case was "whether the commission is preempted from ordering a shutdown of a nuclear generating plant by the Atomic Energy Act of 1954, as amended, Sections 2011 et seq., Title 42 of the U.S. Code."16 That court noted that "[t]he doctrine of preemption is premised on Clause 2 of Article VI of the United States Constitution. The doctrine forbids state regulation of an area if there is explicit or implicit exclusion of state regulation by Congress over a particular subject matter."17 The court held that "the federal government has preempted state regulation of the operation of nuclear power plants with respect to radiological hazards and safety considerations[.]"18 However, the court noted that Congress has left intact the following subsection of the Atomic Energy Act since its enactment in 1954: {¶ 27} "`(k) Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.'"19 {¶ 28} Thus, the Supreme Court of Ohio, in the Cleveland case, recognized the long-standing doctrine of federal preemption in the area of nuclear safety, as well as the rule of judicial analysis that divides federal preemption into express preemption and implied preemption. In general, "[i]f Congress evidences an intent to occupy a given field, any state law falling within that particular field is pre-empted."20 With respect to express preemption in the field of nuclear safety, the United States Supreme Court stated that the "Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States."21 {¶ 29} Notably, in decisions dating back to McCulloch v.Maryland, the United States Supreme Court has stated that the Supremacy Clause would allow the court to proscribe vast numbers of state laws if they create an "interference" with federal law.22 More recently, that court has made clear that the federal government has the power under the Commerce Clause to preempt state tort claims.23 Due to principles of federalism, however, Congress has not chosen to exercise its plenary power to preempt state tort claims.24 {¶ 30} In the instant case, we are dealing with the Atomic Energy Act and the fact that Congress has not expressly proscribed state law claims.25 Thus, we are dealing with implied federal preemption, which is further broken down into (1) federal preemption of a given field and (2) federal preemption by virtue of a conflict with federal law.26 {¶ 31} In the case of English v. General Electric Co., the United States Supreme Court summed up the rules regarding implied "field" preemption and implied "conflict" preemption: {¶ 32} "[I]n the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively, * * * or to the extent it actually conflicts with federal law."27 {¶ 33} As to implied "field" preemption, the United States Supreme Court has stated: {¶ 34} "Absent explicit pre-emptive language, Congress' intent to supersede state law altogether may be inferred because `(the) scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,' because `the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,' or because `the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.'"28 {¶ 35} As for implied federal preemption by virtue of a "conflict" with federal law, "[e]ven when federal law has not completely displaced state law, state law is nullified if it either conflicts with federal law, an event which occurs when compliance with both state and federal law is impossible, or is an obstacle to the accomplishment and execution of the goals of the federal law."29 {¶ 36} The English case was discussed at length in the case of Brown v. Northeast Nuclear Energy Co.,30 which is a case with facts similar to the instant case. {¶ 37} In the Brown case, plaintiff was employed by a subcontractor of a nuclear power plant licensee. When reporting to the plant for work one day, a security guard stopped him, because he believed that Brown had alcohol on his breath. Brown told the guard that he felt sick that day. Unable to reach his supervisor, Brown asked the guard for permission to see his own doctor. His doctor diagnosed him with shingles, with no trace of alcohol. Northeast Nuclear informed Brown later that day that his access to the plant was denied for three hundred sixty-five days, because of his suspected substance abuse. Brown sued his employer and Northeast Nuclear. A motion to dismiss for failure to state a claim upon which relief can be granted was filed by the defendants. The motion contended that Brown's state law claims were preempted by federal law, because they related to his security access and, therefore, fell within the preempted field of nuclear safety regulation. It also argued for a "conflict" preemption, as stated in the English case, such that Northeast Nuclear could not simultaneously comply with federal regulations regarding fitness for duty regulations and state law duties, and, therefore, the state law duties were preempted due to the conflict.31 The court in Brown analyzed the decision of the United States Supreme Court in English. The court stated: {¶ 38} "While it is without dispute that `only the Federal Government should regulate the radiological safety aspects in the construction and operation of a nuclear power plant,' English,496 U.S. at 80 (1990) (internal citations omitted), this begs the question of where to draw the line between preempted and unpreempted state law claims. In making such determinations, the Supreme Court has either focused on the motivation underlying the state law, see Pacific Gas [461 U.S. at 213] (`state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field'), or the `effect of the state law on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels.'English, 496 U.S. at 85. In examining the effects of a state law on radiological safety decisions, the domain of preemption has been restricted to those state laws with `direct and substantial effects.' Id. at 85."32 {¶ 39} The court in Brown concluded that the state interests to be protected related to employee rights and were not motivated by an objective to regulate nuclear safety: {¶ 40} "In this case, the state law underpinning Mr. Brown's claims of breach of implied employment contract, tortious interference with contractual rights, intentional infliction and negligent infliction of emotional distress, are [sic] not motivated by an objective of regulating nuclear safety, but rather the state's protection of the rights of employees, including those who work at federally-licensed nuclear power plants."33 {¶ 41} The court observed that the effect of such state claims "is not generically the type that necessarily is direct or significant enough to fall within the field of preemption created by the federal government's interest in nuclear safety."34 {¶ 42} Finally, under this prong of the court's decision, the court in Brown distinguished two cases that dealt with state law actions for wrongful discharge in the context of federal preemption. Both of these cases are relied upon by FirstEnergy in its argument. First, the case of Hanni v. Cleveland Elec. Illum.Co.35 was distinguished on the basis that in Hanni "`there (was) no genuine issue in dispute as to whether (nuclear power plant) properly terminated (employee) pursuant to federal regulations.'"36 The facts in the Hanni case were that, two months prior to his discharge, plaintiff was arrested for two felonies and subsequently charged with six traffic offenses, including driving under the influence of alcohol. A further investigation revealed that he had been driving without a license for at least three years, which meant that he was driving his personal vehicle onto the plant premises without a driver's license. In Hanni, the Eighth Appellate District held that "a review of the record discloses that CEI was well within its rights to revoke appellant's access authorization pursuant to Section 10.25(a)(3), Title 10, C.F.R., after a review of the guidelines presented in Sections 10.10 and 10.11, Title 10, C.F.R."37 {¶ 43} The second case distinguished by the Brown Court is that of Burns Internatl. Sec. Servs. v. Pennsylvania.38 The plaintiff in that case was a watchman who was subject to Nuclear Regulatory Commission regulations concerning her ability to perform her duties. She suffered from the medical condition of endometriosis and, as a result, was not physically able to work overtime, a requirement of the job. After she was terminated, she sued on the basis that her employer discriminated against her for her disability/handicap.39 The Brown Court distinguished this case on the basis that "the appellate court found that a nuclear power plant employee's state discrimination law claim was preempted to the extent that federal NRC regulation establishing minimum physical and mental qualifications for safety reasons conflicted with state anti-discrimination requirements."40 The Brown Court observed that the facts of the Burns case presented a "direct and substantial conflict between the state law and the federal NRC safety regulations."41 {¶ 44} In summary of the foregoing cases regarding federal preemption, in the absence of express statutory language to dictate otherwise, the Brown and English cases find implied federal preemption where Congress has manifested an intention to regulate the field exclusively (e.g. construction of nuclear facilities) or where state law is in conflict with federal law. In analyzing whether state law was in conflict with federal law, the Brown case held that the effect of the state law on federal law must be "direct and substantial."42 This rule would allow cases dealing with breaches of employment contracts, tortious interference with contract rights, and intentional and negligent infliction of emotional distress to proceed apart from the doctrine of federal preemption, because, in the words of theBrown Court, they "are not motivated by an objective of regulating nuclear safety, but rather the state's protection of the rights of employees, including those who work at federally-licensed nuclear power plants."43 The Supreme Court of the United States upheld this reasoning, because, in the case of Silkwood v. Kerr-McGee Corp., it held that the plaintiff could pursue her claim for punitive damages resulting from unsafe working conditions: {¶ 45} "No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability. But as we understand what was done over the years in the legislation concerning nuclear energy, Congress intended to stand by both concepts and to tolerate whatever tension there was between them. We can do no less. It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to accept."44 {¶ 46} Likewise, a claim for disability discrimination fits within the holding of the Brown case, because it too seeks to vindicate an employee's right to be free of unlawful discrimination. This is true notwithstanding the Burns case, where the appellate court in Pennsylvania found that the claim for disability/handicap discrimination was preempted by federal law, because in that case there was a specific regulation governing the physical and mental qualifications of security personnel.45 {¶ 47} In the instant case, there is no specific regulation offered in the record as to the qualifications for an SRO. There is mention in an affidavit by Brenda Alvord, an HR representative of FirstEnergy, that Minshall "could not perform the essential functions of his job as a Senior Reactor Operator because he could not meet the NRC requirements necessary to obtain unescorted access to the vital areas of the plant." In addition, FirstEnergy, in one its supporting memoranda, states that Minshall "was unable to perform the essential functions of his job as a SRO." However, nowhere in the record are we provided with specifics as to what the essential functions of the SRO job consisted of. The letter dated February 2, 2004, terminating Minshall, states that "[a]s a result of your inability to maintain unescorted access to our plant, your employment with FirstEnergy Nuclear Operating Company is being terminated effective February 2, 2004." The meaning of the letter is clear enough, but what is not clear is whether having unescorted access to the vital areas of the plant is an essential function of the job of SRO. Recall that the record does demonstrate that Minshall was working for some months before he was terminated in the capacity as an SRO, after his unescorted access had been terminated. As in the Hanni case, FirstEnergy may have had grounds to revoke his unescorted access in accordance with the guidelines of 10 C.F.R. 10.11, but this is not conclusive as to whether he was then unable to perform as an SRO where the record is devoid of evidence to tell us what those essential functions consisted of. {¶ 48} FirstEnergy also argues that "Mr. Minshall's lack of fitness for duty, which he clearly alleged in his complaint, falls squarely within the pre-emptive sweep of federal law." FirstEnergy points to the fitness for duty regulations, specifically 10 C.F.R. 26.1, et seq., to argue that Minshall was in violation of those regulations; that those regulations preempt the field of state disability claims; and that his claim for disability discrimination cannot survive such federal preemption. A review of those regulations, however, demonstrates that they are intended as a promulgation of standards by the NRC to its licensees to create fitness-for-duty programs that would guide its employees. They are not themselves the regulations that govern the fitness for duty of the employees at the Perry Nuclear Power Plant. As stated in 10 C.F.R. 26.1: {¶ 49} "This part prescribes requirements and standards for the establishment and maintenance of certain aspects of fitness-for-duty programs and procedures by the licensed nuclear power industry, and by licensees authorized to possess, use, or transport formula quantities of strategic special nuclear material (SSNM)." {¶ 50} It is further stated in 10 C.F.R. 26.2, subsection (a), that, "[e]ach licensee shall implement a fitness-for-duty program which complies with this part." {¶ 51} There is a reference in a memorandum of M.T. Gilday-Gulliford, a nuclear analyst, to an "FFD Program" instituted by FirstEnergy. This memorandum is dated September 19, 2002 and narrates specific violations of the "FFD Program" with respect to Minshall's incident in 2002. However, there is nothing in the record with respect to his incident in 2003 to the effect that he was in violation of FirstEnergy's "FFD Program." {¶ 52} Lacking an adequate record as to what the essential functions of Minshall's job as an SRO consisted of, or what specific regulations he was in violation of, we are unable to agree with FirstEnergy that federal preemption is applicable here. Moreover, we are of the opinion that Congress did not intend, either expressly or impliedly, to preempt state disability claims in promulgating statutes and regulations governing nuclear facilities, but left such claims, dealing as they do with employee's rights, to the states for adjudication. {¶ 53} Therefore, we find that Minshall's first assignment of error has merit. {¶ 54} Minshall's second assignment of error is as follows: {¶ 55} "The trial court committed reversible error by denying plaintiff's motion to strike." {¶ 56} We review this assignment of error according to an abuse of discretion standard. Matters of admission or exclusion of evidence in the trial court are subject to reversal on appeal only if there is an abuse of discretion by the trial court.46 {¶ 57} "The trial court enjoys broad discretion in the admission and exclusion of evidence and will not be reversed absent a clear abuse that materially prejudices the opposing party. * * * In the application of the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial court."47 {¶ 58} Minshall argues that certain documents attached as Exhibits E and F to FirstEnergy's second reply memorandum in support of their motion for judgment on the pleadings, which motion was converted to a motion for summary judgment, contain hearsay and were not authenticated. On this point, the trial court said, "[t]he documents contained in these exhibits were authenticated by Maureen Gilday-Gulliford, Nuclear Analyst the Perry Nuclear Power Plant, through her Affidavit, which was also attached to Defendant's Second Reply Memorandum. Further, the documents contained within said exhibits are not offered for their truth, but merely as a demonstration of the information that Defendant had before them when deciding to terminate Plaintiff." {¶ 59} While we disagree with the trial court's analysis that the documents were not offered for their truth, nevertheless, they were authenticated by the affidavit of Gilday-Gulliford. In her affidavit, she stated that exhibit E constituted business records kept and maintained in the ordinary course of business by FirstEnergy, and that exhibit F was a true and accurate copy of a psychologist's report. As business records, therefore, they were documents that are admissible in support of a motion for summary judgment. Civ.R. 56(C) permits the trial court to consider "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact" in its decision whether to render summary judgment. The rule goes on to say that "[n]o evidence or stipulation may be considered except as stated in this rule." The documents in question, having been authenticated through Gilday-Gulliford's affidavit, were admissible business records. Therefore, there was no abuse of discretion on the part of the trial court in denying Minshall's motion to strike the documents in question. {¶ 60} The second assignment of error is without merit. {¶ 61} For the reasons indicated, the summary judgment entered by the trial court is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion. Ford, P.J., O'Toole, J., concur. 1 Atomic Energy Act of 1954, Sections 2011-2296, Title 42, U.S. Code. 2 Silkwood v. Kerr-McGee Corp. (1984), 464 U.S. 238, 256. 3 Id. 4 Dresher v. Burt (1996), 75 Ohio St. 3d 280, 292. 5 Smith v. L.J. Lewis Ent., Inc., d.b.a. Action EmergencyAmbulance (Sept. 28, 2001), 11th Dist. No. 2000-T-0052, 2001 Ohio App. LEXIS 4413, at *12-14. 6 Peterson v. Teodosio (1973), 34 Ohio St. 2d 161, 166. 7 Id. at 165-166. 8 Anderson's Ohio Civil Practice, vol. 4, § 152.15, at 347. 9 Id. 10 Civ.R. 12(B). 11 See State v. Lee, 11th Dist. No. 2002-T-0168,2004-Ohio-6954, at ¶ 57-58. 12 State ex rel. Nelson v. Russo (2000), 89 Ohio St. 3d 227,228. 13 Id. 14 Grafton v. Ohio Edison Co. (1996), 77 Ohio St. 3d 102,105. 15 Cleveland v. Pub. Util. Comm. (1980),64 Ohio St. 2d 209. 16 Id. at 210. 17 (Citations omitted.) Id. at 212. 18 Id. at 215. 19 Cleveland v. Pub. Util. Comm., supra, at 212, quoting Atomic Energy Act of 1954, section 2021(k), Title 42, U.S. Code. 20 Silkwood v. Kerr-McGee Corp., 464 U.S. at 248. 21 Pacific Gas Elec. Co. v. State Energy ResourcesConservation and Dev. Comm. (1983), 461 U.S. 190, 213. 22 McCullogh v. Maryland (1819), 17 U.S. (4 Wheat.) 316;Gibbons v. Ogden (1824), 22 U.S. 1. 23 Gonzalez v. Raich (2005), 125 S. Ct. 2195, 2205-2206. 24 Cipollone v. Liggett Group, Inc. (1992), 505 U.S. 504,531-533 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part). 25 Silkwood v. Kerr-McGee Corp., 464 U.S. at 251. 26 English v. Gen. Elec. Co. (1990), 496 U.S. 72, 78. 27 Id. 28 Fidelity Federal Savings Loan Assn. v. De La Cuesta (1982), 458 U.S. 141, 153, quoting Rice v. Santa Fe ElevatorCorp. (1947), 331 U.S. 218, 230. 29 (Citation omitted.) Burns Internatl. Sec. Servs., Inc. v.Pennsylvania (1988), 119 Pa. Commw. 418, 547 A.2d 818, 821. 30 Brown v. Northeast Nuclear Energy Co. (Conn. 1999),48 F. Supp. 2d 116. 31 Id. at 119-120. 32 Id. at 120. 33 Id. 34 Id. 35 Hanni v. Cleveland Elec. Illum. Co. (1993),87 Ohio App. 3d 295. 36 Brown v. Northeast Nuclear Energy Co.,48 F. Supp.2d at 121, quoting Hanni v. Cleveland Elec. Illum. Co.,87 Ohio App.3d at 304. 37 Hanni v. Cleveland Elec. Illum. Co., supra, at 301. 38 Burns v. Internatl. Sec. Servs. v. Pennsylvania, supra. 39 Id. at 819-820. 40 Brown v. Northeast Nuclear Energy Co.,48 F.Supp.2d at 121. 41 Id. 42 Id. 43 Id. at 120. 44 Silkwood v. Kerr-McGee Corp., 464 U.S. at 256. 45 Burns Internatl. Sec. Servs. v. Pennsylvania,547 A.2d at 822. 46 Consol. Invest. Corp. v. Oak Real Estate, Ltd., 11th Dist. No. 2003-L-017, 2004-Ohio-1435, at ¶ 13. 47 (Citations omitted.) Id.

2016-07-06 06:42:25.86722+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Appellants, Mary L. Leek and Dennis T. Leek, appeal from the Summit Count Court of Commons Pleas' grant of summary judgment in favor of Appellees, Donald Miller, d.b.a. The Cafe in Stow, and Leisure Time, Inc. We affirm. Around noon on May 1, 1996, Mary Leek drove to "The Cafe in Stow." She was planning to meet her friend, Debbie Millimet, for lunch. Leek parked her car and started to walk across the parking lot. She carried her nine-month-old granddaughter and a diaper bag. She slipped in a pothole and fell to the ground. This hole was eighteen inches long, eight inches wide, and one and one-quarter inches deep. Rain fell most of that morning, and at the time of Leek's fall, the rain was a misty drizzle. Leek had been to the cafe on three or four previous occasions, and her last visit had been several months before. Leek and her husband sued Donald Miller and Leisure Time for the injuries that Leek sustained as a result of this fall. Miller and Leisure Time moved for summary judgment. Leek and her husband filed a memorandum with exhibits in opposition to the defendants' motion. On September 15, 1997, the trial court granted summary judgment in favor of Miller and Leisure Time. The Leeks timely appeal the judgment of the trial court and raise a single assignment of error. ASSIGNMENT OF ERROR The Trial Court erred in granting summary judgment in favor of Defendant on the grounds that the danger was open and obvious as Plaintiff presented evidence that the defect causing the fall was not visible to Plaintiff. The Leeks contend that the trial court erred by granting summary judgment in favor of the defendants, Miller and Leisure Time. Based upon our review of the motion, the response, and the evidence presented in both, we find that summary judgment was properly granted in favor of Miller and Leisure Time. Pursuant to Civ.R. 56(C), summary judgment is proper if it can be established that (1) no genuine issues of material fact exist to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to only one conclusion. State ex rel Howard v. Ferreri (1994),70 Ohio St. 3d 587, 589. Doubts must be resolved in favor of the nonmoving party. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St. 3d 679,686. Because only legal questions exist, no deference is to be afforded the trial court upon a review of an entry of summary judgment. Lorain Cty. Bd. of Commrs. v. United StatesFire Ins. Co. (1992), 81 Ohio App. 3d 263, 267. Therefore, we review the matter de novo. Pennsylvania Lumbermens Ins. Corp. v.Landmark Elec., Inc. (1996), 110 Ohio App. 3d 732, 743. We will first set forth the substantive law relating to the duty a shopkeeper owes to invitees. We will then address whether the parties met their respective burdens for summary judgment. The Leeks' claim requires them to show a duty on the part of Miller, a breach of that duty, and that such breach proximately caused Mary Leek's injuries. Anderson v. Ruoff (1995), 100 Ohio App. 3d 601,604. We first note that "[t]he determination of any question of duty * * * has been held to be an issue of law for the court and never one for the jury." (Citations omitted.) Keisterv. Park Centre Lanes (1981), 3 Ohio App. 3d 19, 24. We now turn to whether Miller and Leisure Time owed Mary Leek a duty concerning the pothole in the parking lot. Business invitees are defined as "persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner." Light v. OhioUniversity (1986), 28 Ohio St. 3d 66, 68; Scheibel v. Lipton (1951), 156 Ohio St. 308, paragraph one of the syllabus. The Supreme Court of Ohio has held that owners owe "business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger." Paschal v. RiteAid Pharmacy, Inc. (1985), 18 Ohio St. 3d 203. See Light v. OhioUniversity, 28 Ohio St.3d at 68; Anderson v. Ruoff,100 Ohio App. 3d at 605. Ordinary care connotes "that which an ordinarily reasonable and prudent person exercises." Parsons v. LawsonCo.(1989), 57 Ohio App. 3d 49, 50; See Jackson v. Kings Island (1979), 58 Ohio St. 2d 357, 359; S.S. Kresge Co. v. Fader (1927),116 Ohio St. 718, 722. This duty of care includes "warning an invitee of latent or concealed defects or perils of which the possessor has or should have knowledge." McLaughlin v. OhioVeterans' Children's Home (1987), 37 Ohio App. 3d 136, 138. SeeWestwood v. Thrifty Boy (1972), 29 Ohio St. 2d 84, 86-87; Newtonv. Pennsylvania Iron Coal, Inc. (1993), 85 Ohio App. 3d 353, 355;Kubiszak v. Rini's Supermarket (1991), 77 Ohio App. 3d 679, 686;Keister v. Park Centre Lanes, 3 Ohio App.3d at 24. This duty of care includes "providing a reasonably safe ingress and egress."Tyrrell v. Investment Assoc., Inc. (1984), 16 Ohio App. 3d 47, 49. However, "[a] shopkeeper is not * * * an insurer of the customer's safety." Paschal v. Rite Aid Pharmacy, Inc.,18 Ohio St.3d at 203; S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, paragraph one of the syllabus. A defect that is "insubstantial and of the type that passersby commonly encounter" is not an unreasonably dangerous condition. Baldauf v. Kent State Univ. (1988), 49 Ohio App. 3d 46,49. A merchant is "under no duty to protect business invitees from dangers `which are known to such invitee that he may reasonably be expected to discover them and protect himself against them.'" Paschal v. Rite Aid Pharmacy, Inc.,18 Ohio St.3d at 203-04, citing Sidle v. Humphrey (1968), 13 Ohio St. 2d 45, paragraph one of the syllabus. The Supreme Court of Ohio has found that a variation of less than two inches in a sidewalk is not an unreasonably dangerous condition. Kimball v. Cincinnati (1953), 160 Ohio St. 370, 374. Moreover, this court has acknowledged: [t]he "Kimball Rule" holds that variations in sidewalk levels of less than two inches are, as a matter of law, minor or trivial imperfections that are not unreasonably dangerous.' Campbell v. G.M.S. Management Co. Inc. (Mar. 30, 1994), Summit App. No. 16403, at 4. The Ohio Supreme Court upheld the Kimball rule in the context of privately owned properties. See Helms v.American Legion, Inc. (1966), 5 Ohio St. 2d 60, 63. See, also,Campbell v. G.M.S. Management Co. Inc., supra, at 4. Furthermore, the Supreme Court has refused to overrule the Kimball rule. Cashv. Cincinnati (1981), 66 Ohio St. 2d 319, 323. We now look at how courts in Ohio have defined an unreasonably dangerous condition. The Eighth District Court of Appeals determined that an uncovered, concealed, waist-deep manhole was an unreasonably dangerous condition. Fischer v. DairyMart Convenience Stores, Inc. (1991), 77 Ohio App. 3d 543, 551-52. The Supreme Court found that a depression from an excavation that was one and one-half inches deep and twelve to fourteen inches wide, and traversed at least three feet of a crosswalk presented an issue of fact regarding whether an unreasonably dangerous condition existed. Cash v. Cincinnati, 66 Ohio St.2d at 324-25. In contrast, an unreasonably dangerous condition did not exist in a case where a person fell due to loose concrete, and the pieces of concrete were approximately one and one-half inches in diameter. McLaughlin v. Ohio Veterans' Children's Home,37 Ohio App.3d at 137 and 140. In a case of crumbling concrete on a step, the Tenth District Court of Appeals found that such a defect was minor and of a type commonly encountered. Baldauf v. Kent StateUniv., 49 Ohio App.3d at 50. Similar to Kimball, and distinguishable from Cash where the depression was at least three feet in length and created by an excavation, the depression in the case at bar resulted from climate and natural wear and tear. Moreover, a shallow pothole is a minor defect and commonly encountered. We now turn to whether the parties met their respective burdens for summary judgment. The moving party "bears the initial burden of informing the trial court of the basis of 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." Dresher v. Burt (1996), 75 Ohio St. 3d 280,293. See, also, Vahila v. Hall (1997), 77 Ohio St. 3d 421,429; Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St. 3d 134, 145. Once the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden to set forth specific facts showing that there is, indeed, a genuine issue for trial.Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 256,91 L. Ed. 2d 202, 217; Vahila v. Hall, supra, at 429. The nonmoving party "is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute." 60 Ivy Street Corp. v. Alexander, (C.A. 6, 1987), 822 F.2d 1432, 1435. Where the nonmoving party fails to make a sufficient showing on an essential element of the case with respect to which it has the burden of proof, summary judgment is appropriate. Celotex Corp. v. Catrett (1986),477 U.S. 317, 323, 91 L. Ed. 2d 265, 273. In their motion for summary judgment, Leisure Time and Miller pointed to the one and one-half-inch depth of the puddle and argued that because no unreasonably dangerous condition existed, no duty was owed to Mary Leek. In its response to the motion for summary judgment, the Leeks offered the affidavit of David Leek and a photograph that confirmed the depth of the pothole puddle being one and one-quarter inches deep. Construing the facts in a light most favorable to the Leeks, that the pothole was one and one-quarter inches deep, eighteen inches in length, and eight inches wide, we find that the Leeks failed to demonstrate that an unreasonably dangerous condition existed upon which shopkeepers would owe a duty to invitees. Therefore, the trial court properly granted summary judgment in favor of Leisure Time and Miller. The Leeks' 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 appellants. Exceptions. _________________________________ SHEILA G. FARMER, FOR THE COURT BAIRD, P. J. DICKINSON, J., CONCUR (Farmer, J., Judge of the Fifth District Court of Appeals, sitting by assignment pursuant to Article IV, § 5(A)(3), Constitution.)

2016-07-06 06:42:25.790018+00

{¶ 1} Relator, Ronald Hall, has filed this original action requesting this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its orders denying his motion for leave to take a doctor's deposition and denying his application for permanent total disability ("PTD") compensation, and to enter an order finding that he is permanently and totally disabled or permission to take the deposition. {¶ 2} This matter was referred to a court-appointed 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, and recommended that this court grant a limited writ and return the matter to the commission to vacate its denial of PTD compensation and to issue a new order that complies with State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, and State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. (Attached as Appendix A.) Both relator and the commission have filed objections to the magistrate's decision. {¶ 3} The commission argues in its objection the magistrate erred in finding the commission failed to comply with Noll and Stephenson by failing to include in its discussion of relator's mental capacity Dr. Norman Berg's conclusions regarding relator's intelligence. The magistrate found the commission could not make an unqualified statement that it relied upon Dr. Berg's report, yet fail to address Dr. Berg's conclusion that relator's intelligence was very limited and his functioning was at a borderline or dull normal level. We agree with the magistrate. Although we recognize the commission did discuss relator's mental capacity with regard to sustained remunerative employment, it did not specifically address Dr. Berg's conclusions on this matter. While specifically endeavoring to outline all of Dr. Berg's other conclusions in his report, the commission then inexplicably neglected to mention anything about Dr. Berg's conclusions on relator's intelligence and functioning. Thus, we find the commission's objection without merit. {¶ 4} Relator argues in his objections the magistrate erred in finding: (1) the commission did not abuse its discretion in refusing relator's request to take the deposition of Dr. Amendt; (2) that Dr. Amendt's report constituted some evidence upon which the commission could rely; (3) that the report of the commission's psychologist Dr. Berg constitutes some evidence upon which the commission could rely to deny PTD compensation; (4) that the commission did not violate State ex rel. Fultz v. Indus. Comm. (1994), 69 Ohio St.3d 327; and (5) the commission did not abuse its discretion in failing to discuss relator's unsuccessful rehabilitation attempt. Relator raises no new issues and merely disagrees with the magistrate. We have reviewed relator's objections and the magistrate's analysis and agree with the magistrate's reasoning on these issues. Therefore, relator's objections are without merit. {¶ 5} After an examination of the magistrate's decision, an independent review of the record pursuant to Civ.R. 53, and due consideration of relator's and the commission's objections, we overrule their objections and find that the magistrate sufficiently discussed and determined the issues raised. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it, and grant a limited writ of mandamus returning this matter to the commission to vacate its denial of PTD compensation and to issue a new order that complies with Noll and Stephenson, supra. Objections overruled; limited writ granted. TYACK and DESHLER, JJ., concur. IN MANDAMUS {¶ 6} Relator, Ronald Hall, filed this original action seeking a writ of mandamus compelling respondent Industrial Commission of Ohio to vacate its orders that denied leave to take a doctor's deposition and that denied compensation for permanent total disability ("PTD"), and to issue an order granting the requested compensation or permission to take the deposition. Findings of Fact: {¶ 7} 1. In 1989, Ronald Hall ("claimant") sustained an industrial injury, and his workers' compensation claim was allowed for numerous conditions of the back and neck. He underwent surgeries, and his claim was additionally allowed for dysthymic disorder and somatoform pain disorder. {¶ 8} 2. In June 1991, a rehabilitation plan was designed for claimant that involved a vocational evaluation, assistance with a job search, and a course on minimizing pain and stress. {¶ 9} 3. In June 1991, claimant was examined by Bernard Bacevich, M.D., who found limited lumbosacral motion but no cervical limitation. Neurological examination showed no involvement of the extremities. Dr. Bacevich assessed a 15% permanent impairment based on the physical conditions. He stated that the conditions prevented claimant from returning to drywall installation and also prevented "other types" of employment. Dr. Bacevich recommended that claimant participate in the rehabilitation services that were scheduled to begin later that month. {¶ 10} 4. In April 1996, a form was completed by John Roberts, M.D., estimating claimant's physical capacities. Dr. Roberts opined that claimant could lift up to five founds frequently. He opined that claimant could stand/walk for four hours per day and could sit for four hours per day, but could not perform "repetitive" twisting or rotation of the trunk. Dr. Roberts estimated that claimant could engage in combined sitting/standing/walking for a total of six hours. He found no restrictions on reaching, grasping, fine manipulation, foot controls, and turning the head/neck. Dr. Roberts stated that claimant must avoid bending, stooping, crouching, kneeling, crawling, and twisting. {¶ 11} 5. In January 1999, the Social Security Administration granted disability benefits to claimant based on his testimony and a psychologist's testimony regarding claimant's dysthymia and chronic depression. {¶ 12} 6. In January 2000, claimant filed a PTD application, indicating that he was forty-two years old, completed the eighth grade, and had done construction work, specializing in drywall installation. {¶ 13} 7. Claimant relied on various medical opinions and filed a report from Kenneth Manges, Ph.D. {¶ 14} 8. In support of his application, claimant filed a November 1999 report from Walter Broadnax, M.D., who noted that claimant reported severe pain, including pain that radiated down both legs. Claimant explained that, on a pain scale from one to ten, with ten being the worst pain imaginable, his pain was routinely at level ten. During the examination, Dr. Broadnax noted lumbar muscle spasm. Motor strength was 5/5 and muscles had normal bulk and tone. The senses were intact to pinprick and light touch. Plantar reflex was flexion, and deep tendon reflex was +2. Dr. Broadnax described range of motion as follows: "* * * [L]umbar flexion to be 10 degrees, lumbar extension to be 5 degrees, left lateral flexion is 10 degrees, right lateral flexion is 10 degrees, left lateral rotation is 10 degrees, right lateral rotation is 10 degrees." Dr. Broadnax also discussed claimant's educational background and noted that Dr. Manges had found claimant to be functionally illiterate. He assessed a whole-person impairment of 32% based on the orthopedic conditions, and set forth the following physical capacities: that claimant could stand for one hour, sit for one hour, and walk for one hour. He opined that claimant could lift up to ten pounds for one hour, and could operate foot controls for up to one-third of the time. Dr. Broadnax opined that claimant could use his upper extremities for handling/seizing/turning for up to one-third of the time, and could reach overhead for up to one-third of the time. He stated that claimant could "not at all" kneel, climb stairs or ladders, and reach at waist or floor levels, or crouch, stoop or bend. Accordingly, Dr. Broadnax opined that claimant was permanently and totally disabled. {¶ 15} 9. On May 3, 2000, claimant was examined on behalf of the commission by Norman Berg, Ph.D., who found that claimant could relate adequately to others in a work setting and that claimant's ability to cope with routine job stress was "mildly to moderately" impaired. Dr. Berg observed that claimant functioned in a "moderately slow" manner and that his ability to sustain his level of activity was "mildly to moderately" impaired. He rated claimant's intelligence as borderline to dull normal, and he observed that claimant was able to understand and follow verbal directions. Dr. Berg assessed 20% impairment from the somatoform pain disorder and 15% for the dysthymia. He concluded that, based only on the impairment from the allowed psychological conditions, claimant could meet the basic demands required to perform sustained remunerative employment. {¶ 16} 10. On May 10, 2000, claimant was examined on behalf of the commission by Wayne Amendt, M.D., who submitted a report that was received by claimant's counsel on May 31, 2000. (A copy of that report does not appear to be in the record.) {¶ 17} 11. On June 2, 2000, a hearing administrator sent a memorandum, asking the medical section to have Dr. Amendt review his narrative report, because he had apparently sent a draft report rather than a final one, based on the appearance of the section of his report regarding evidence in the file. {¶ 18} 12. On or about June 6, 2000, claimant filed a motion requesting permission to take Dr. Amendt's deposition, noting that the subject report was "received by claimant's counsel on 5/31/00." {¶ 19} 13. The medical section of the commission received a report from Dr. Amendt on June 20, 2000 (according to a date stamp on the copy in the stipulated evidence). In this report, Dr. Amendt described the examination as follows: {¶ 20} "Physical Examination: {¶ 21} "On physical examination, claimant is able to undress and assume the seated position on the exam table without difficulty. In the seated position on the exam table, straight leg raise is negative, negative sciatic stretch and negative flip test. Reflexes, patellar 3+, Achilles 3+. Calves measure equally at 15" bilaterally. Strength in the EHL and ankle dorsiflexors is 5/5 and symmetrical. He assumes the supine position, rolling to side and in this position straight leg raise causes back pain only at 40° of hip flexion on the right and 60° of hip flexion on the left. Hip internal and external rotation is normal. In the supine position. Faber test does cause pain over the right SI joint, however there is no pain over the left SI joint. He rolls to side to come to the upright position and in the standing position he is able to toe and heel walk without evident weakness. Range of motion lumbar spine 0°, forward flexion 20°. Right and left lateral bending 10° and rotation 20° right and left. {¶ 22} "Cervical spine range of motion, forward flexion is 60°, extension 50°, rotation to the right 80°, rotation to the left 80°, lateral bending is 30° right, 30° left. Reflexes, biceps and triceps 2+ and equal. He has normal strength in the radial median and ulnar innervated musculature. There is atrophy. There is no decrease sensation over the C-6, 7 or C-8 dermatomes. Shoulder strength is normal in terms of deltoid, biceps and triceps, internal and external rotators. There is no tenderness noted over the thoracic spine area." {¶ 23} Dr. Amendt then concluded as follows: {¶ 24} "Opinion: {¶ 25} "The claimant has reached a state of maximum medical improvement. His whole person impairment, based upon AMA Guides to the Evaluation of Permanent Impairment, Edition IV is rated as follows: Upper back and neck strain — 5% whole person DRE Cervicothoracic Category II. Back injury, lumbosacral strain, acquired spondylolisthesis L-5, S-1 and failed back syndrome and pseudoarthrosis of prior fusion L-4, S-1 — Table 75 Section IV — 15%, Table 81 — 11% + 7%, Table 82 — 3% + 3%, Table 83 — 0% for a total whole person impairment rating of 37% based upon AMA Guides to the Evaluation of Permanent Impairment, Edition IV. His condition is permanent and he has reached maximum medical improvement. The claimant is incapable of resuming his former position of employment but would be capable of engaging in sustained remunerative work activity in a sedentary setting." {¶ 26} In addition, on the capacities checklist accompanying the report (received by the commission initially in May 2000), Dr. Amendt estimated that claimant could sit for five to eight hours, stand for zero to three hours, and walk for zero to three hours. Lifting was limited to ten pounds, for zero to three hours. Dr. Amendt stated that claimant could not climb stairs or ladders, and could not crouch, stoop, bend or kneel. He could operate foot controls for up to one-third of the time, and could reach overhead for up to one-third of the time. Reaching at waist level was unrestricted, but reaching at knee and floor levels was prohibited. {¶ 27} 14. In July 2000, a vocational report was submitted on behalf of the commission by William Cody. Claimant obtained permission to take Mr. Cody's deposition, during which Mr. Cody repudiated one or more of the opinions set forth in his report. Among other things, Mr. Cody testified that some bending was necessary to perform sedentary work. {¶ 28} 15. The commission denied permission to take Dr. Amendt's deposition: {¶ 29} "The Staff Hearing Officer finds that there is no substantial disparity between the report of Dr. Amendt and other medial evidence on file concerning the issue of the claimant's ability to engage in sedentary work activity. The opinion of the vocational expert Mr. Cody is not sufficient to call into question the opinion of Dr. Amendt regarding the claimant's ability to engage in sedentary work activity from a medical point of view." {¶ 30} 16. In February 2001, the commission denied PTD compensation: {¶ 31} "This order is based on the medical reports of Dr. Amendt and Dr. Berg. {¶ 32} "* * * Dr. Amendt opined that a claimant is unable to return to his former position of employment as a result of the allowed orthopedic conditions. He further opined that the claimant is capable of performing other forms of sustained remunerative employment, characterized as sedentary employment. Dr. Amendt completed an Occupational Activity Assessment Form which he attached to his medical report. On that form, he indicated that the claimant can sit up to 8 hours in a workday, stand up to 3 hours in a workday and walk up to 3 hours in a workday. He further indicated that the claimant can occasionally lift, carry, push or pull objects weighing up to 10 pounds. Dr. Amendt noted that the claimant is unrestricted in his ability to handle objects and reach at waist level. He further indicated that the claimant can occasionally use foot controls and reach overhead. Finally, Dr. Amendt noted that the claimant is unable to climb stairs or ladders, crouch, stoop, bend, kneel, and reach at knee level or from floor level. {¶ 33} "* * * Dr. Berg opined that the allowed psychological conditions do not prevent the claimant from performing his former position of employment or any other form of sustained remunerative employment. Dr. Berg opined that the claimant is able to understand and follow simple verbal directions. He further opined that the claimant's ability to maintain his attention and concentration is mildly impaired by the allowed psychological conditions. He further opined that the claimant is able to adequately relate to others in a work setting, although he functions in a moderately slow manner. Psychologically, Dr. Berg opined that the claimant's ability to sustain his level of activity is mildly to moderately impaired and his ability to cope with routine job stress is mildly to moderately impaired. {¶ 34} "The Staff Hearing Office finds that the claimant is unable to return to his former position of employment as a result of the allowed orthopedic conditions in the claim. The Staff Hearing Officer further finds that the claimant is capable of performing sedentary employment with the limitations and capabilities as set forth in the medical reports and Occupational Activity Assessment Forms completed by Dr. Amendt and Dr. Berg. {¶ 35} "The Staff Hearing Officer finds that the claimant is presently 43 years of age. The Staff Hearing Officer finds the claimant's age to be an asset which would enable him to adapt to new work rules, processes, methods, procedures and tools involved in a new occupation. The Staff Hearing Officer further finds that the claimant's age would be an asset in enabling him to compete with others for available openings in the job market. The Staff Hearing Officer finds that the claimant's formal education has been reported to be between the 8th and 10th grade by the claimant. The claimant noted on the Application for Permanent Total Disability Compensation that he has an 8th grade education. However, he has reported a 9th and 10th grade education to various examiners, notably Dr. Tarlano on 12/12/90, Dr. Farrell on 02/26/92, Dr. Miller on 07/20/95 and Dr. Manges on 10/14/96 and 11/20/00. Equally contradictory are the testing results reported by Dr. Manges. Dr. Manges performed testing on the claimant to determine his academic functioning as reported on 11/14/96. At that time, Dr. Manges stated that the claimant reads at a 3rd grade equivalent, writes at a 2nd grade equivalent and performs mathematics at a 5th grade equivalent. More recently, in a 11/20/00 report, Dr. Manges stated that the claimant reads at a 5th grade equivalent, writes at a 3rd grade equivalent and performs mathematics at a 5th grade equivalent. Absent any explanation as to the variance in the academic skills, the Staff Hearing Officer finds that the claimant has improved his academic functioning, although it continues to be in the marginal to limited range. The Staff Hearing Officer finds that the claimant's education and academic functioning would not be assets to the claimant in performing entry-level occupations requiring clerical competency. The Staff Hearing Officer finds that the claimant's education and academic functioning would not preclude him from performing entry-level unskilled work and participating in on-the-job training to acquire basic work skills. The Staff Hearing Officer further finds that the claimant's work history has been that as a drywaller, where the claimant functioned in the position of `working foreman.' The Staff Hearing Officer finds that the claimant acquired a number of skills and abilities which would be beneficial to him and transferable to other employment activities within his physical restrictions. Such skills would include the ability to measure, mark and cut lines, use a tape measure and marking device as well as engage in reasoning and problem solving. The Staff Hearing Officer further finds that these abilities and aptitudes indicate that the claimant has the ability to process information and make judgments, reason and deal with others, as well as do precise work within tolerances. The Staff Hearing Officer finds that such skills would be an asset to the claimant in engaging in re-training. Furthermore, the Hearing Officer finds that although the claimant has tested at low levels on aptitude testing, his past work experience suggests that he is able to perform a wide range of tasks necessary to engage in unskilled work activity. {¶ 36} "The Staff Hearing Officer finds that the claimant's past work history is a reliable measure and indicates that the claimant has worked productively in the past and has potential for employment in the future. The Staff Hearing Officer further finds that the claimant has the ability to engage in a number of employment activities based upon his physical restrictions considering his age, education, academic functioning and work experience. In denying his application for Social Security Disability benefits, the Administrative Law Judge found that the claimant is able to perform the occupations of sedentary assembler and production inspector. The Judge made findings in her order (which is contained in the claim file) that the claimant was limited to sedentary work with the additional limitations that the claimant would need to change position every two hours and not perform tasks which require bending or stooping. The Judge relied on the testimony of a vocational expert who named jobs the claimant could perform given his residual functional capacity taking into account the claimant's age, educational background, and employment history. The Staff Hearing Officer finds that the claimant would be capable of performing those occupations. Accordingly, the Staff Hearing Officer finds that the claimant is able to engage in sustained remunerative employment." {¶ 37} 17. Claimant requested reconsideration, which the three members of the commission unanimously denied. Conclusions of Law: {¶ 38} In this original action in mandamus, claimant contends that the commission abused its discretion in refusing his request to take Dr. Amendt's deposition. In addition, in regard to the denial of PTD compensation, claimant makes the following arguments: (1) that the report of Dr. Berg does not constitute "some evidence" on which the commission could rely and must be removed from evidentiary consideration; (2) that the report of Dr. Amendt does not constitute "some evidence" on which the commission could rely and must be removed from evidentiary consideration; (3) that the commission abused its discretion and violated State ex rel. Fultz v. Indus. Comm. (1994), 69 Ohio St.3d 327, in failing to mention the opinions expressed by Mr. Cody; and (4) that the commission abused its discretion in failing to mention an unsuccessful rehabilitation attempt that claimant made. {¶ 39} In regard to medical reports, the magistrate agrees that a medical report cannot constitute "some evidence" if it is internally inconsistent or fatally ambiguous. E.g., State ex rel. Owens-Corning Fiberglas Corp. v. Indus. Comm. (1994), 70 Ohio St.3d 263; State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio St.3d 649; State ex rel. Lopez v. Indus. Comm. (1994), 69 Ohio St.3d 445; State ex rel. Malinowski v. Hordis Bros. Inc. (1997), 79 Ohio St.3d 342; State ex rel. Chrysler Corp. v. Indus. Comm. (1998), 81 Ohio St.3d 158. {¶ 40} In regard to depositions, R.C. 4123.09 provides that parties may take depositions in workers' compensation claims with permission from the bureau or as ordered by the commission. The administrative code sets forth a procedure for requesting a deposition and states that the hearing administrator will grant a "reasonable" request. Ohio Adm. Code 4121-3-09(6)(c). The code further states that the factors for considering the reasonableness of a request for deposition "include whether a substantial disparity exists between various medical reports on the issue that is under contest, whether one medical report was relied upon to the exclusion of others, and whether the request is for harassment or delay." Ohio Adm. Code 4121-3-09(6)(d). See, also, Williams v. Moody's of Dayton (1982), 1 Ohio St.3d 238. {¶ 41} In State ex rel. Cox v. Indus. Comm. (2002),95 Ohio St.3d 353, the Ohio Supreme Court recently reviewed the administrative rule and pointed out that, at the time the commission is determining whether to grant leave to take a deposition, it cannot know which medical reports will be relied upon to the exclusion of others. In addition, the court clarified the proper standard for granting deposition requests. The court explained that substantial disparity between percentage figures can be irrelevant when the issue for determination is not the percentage of disability. Id. at 355. Moreover, the court noted that substantial disparities in the evidence are commonplace and that, in a disputed disability matter, one of the primary purposes of the hearing is to present and debate the relative strengths and weakness of the medical reports. The court further observed that the enumerated factors for determining the reasonableness of a deposition were not exclusive and that, in some cases, it is more appropriate to consider whether there is a defect in the report that can be cured by a deposition and whether the hearing itself is an equally reasonable option for resolving the questions. {¶ 42} In the present action, the magistrate finds no disparity in the medical reports of a type that would require the commission to order a deposition. Dr. Amendt's clinical findings were not substantially different from other doctors' findings during the same period of time, and the differences that did appear were subject to explanation and discussion in the hearing. To require a deposition as a matter of law, there must be a divergence that cannot be attributed to the difference in a person's symptoms from day to day, to the different presentations a person may give to different examiners, or to ordinary bias that might be expected from examiners hired by different parties. In short, the disparity must be more than the ordinary difference of opinion that doctors have. Further, there are no defects in Dr. Amendt's report — no inexplicable statements, no ambiguity on crucial issues, no patent contradictions — that can be cured in a deposition. Indeed, even the existence of a fatal inconsistency does not automatically require a deposition, as the hearing officer can simply disqualify a report that is defective as a matter of law. Id. at 357. Examining all the factors, the magistrate concludes that the commission was within the range of its discretion to deny leave to take Dr. Amendt's deposition. {¶ 43} Next, the magistrate addresses the issues relating to the PTD order. The first question is whether there are fatal defects in the reports of Drs. Berg or Amendt such that the commission was barred from relying on the reports as a matter of law. The magistrate finds none. There are no contradictions or ambiguities that would bar the reports from evidentiary consideration. Dr. Berg made clear that, when he stated his opinion on work restrictions, he was relying solely on the allowed psychological conditions. He did not consider the effect of nonmedical factors such as education and intelligence. Therefore, while Dr. Berg's finding about claimant's limited intelligence was within his area of expertise as a psychologist, that finding did not contradict his opinion regarding work restrictions caused by the allowed conditions. {¶ 44} Nonetheless, although there is no fatal flaw in Dr. Berg's report, the magistrate concludes that the commission's lack of discussion of claimant's mental capacity, as found by Dr. Berg, was insufficient to satisfy State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, and State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. Although the commission was not required to rely on Dr. Berg's report, it chose to do so, and that report stated that claimant's intelligence was very limited; Dr. Berg concluded that claimant was functioning at a "borderline level" or in the dull normal level. However, the commission ignored that finding in its discussion of the vocational factors. {¶ 45} The magistrate concludes that the commission, having made an unqualified statement that it relied on Dr. Berg's report and having a duty to discuss vocational factors such as intelligence and ability to learn new skills, had a duty to address the factor of claimant's low intelligence as found by Dr. Berg or at least to explain why it rejected that part of Dr. Berg's opinion. The magistrate does not suggest that the commission cannot choose to accept part and reject part of a report. The conclusion is simply that, when the commission chooses to adopt a report without qualification, and then ignores crucial opinions in the report that are relevant to issues the commission is obliged to discuss, then it has failed to comply with its duty to provide an adequate rationale for its decision. {¶ 46} Next, the magistrate finds no abuse of discretion in the absence of any reference in the order to the report or deposition of Mr. Cody. The commission had no duty to cite all the evidence or discuss all the evidence. It was required to cite only the evidence on which it relied and had no obligation to identify the rejected evidence or explain why it was rejected. See, e.g., State ex rel. Bell v. Indus. Comm. (1995), 72 Ohio St.3d 575; State ex rel. Lovell v. Indus. Comm. (1996),74 Ohio St.3d 250. The commission was not required to rely on or discuss Mr. Cody's opinions, whether in his written report or deposition. {¶ 47} Finally, as to the alleged omission of evidence demonstrating claimant's unsuccessful attempt at rehabilitation, the evidence in the file regarding rehabilitation is too sketchy to impose a duty on the commission to discuss that factor. The evidence before the court does not demonstrate how rehabilitation progressed, whether it was completed, or why it was unsuccessful, and the commission's lack of discussion was, therefore, not an abuse of discretion. {¶ 48} Based on the foregoing, the magistrate recommends that the court grant a limited writ and return this matter to the commission to vacate its denial of PTD and to issue a new order that complies with Noll and Stephenson, supra.

2016-07-06 06:42:25.901902+00

DECISION {¶ 1} Relator, Jerry Tressler, filed this original action requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying his application for permanent total disability compensation, and order the commission to find that he is entitled to that 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.) Relator filed an objection to the magistrate's decision, stating only that he objects because the magistrate disagreed with the arguments he presented. The magistrate considered relator's arguments and concluded that the commission properly relied on a vocational assessment prepared by Anthony Stead, and that the commission gave appropriate consideration to a letter from Catherine Mikula concerning relator's willingness to pursue vocational rehabilitation. We agree with the magistrate's analysis and reasoning. We do, however, wish to correct the spelling of relator's name for the record. {¶ 3} Based on an independent review of the evidence, and with the exception of the change to the spelling of relator's name, we adopt the magistrate's decision, including the findings of fact and conclusions of law contained it. In accordance with the magistrate's decision, we deny the requested writ of mandamus. Objection overruled, writ of mandamus denied. Petree and Sadler, JJ., concur. APPENDIX A IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. Jerry [Tressler], : Relator, : v. : No. 05AP-654 Industrial Commission of Ohio : (REGULAR CALENDAR) and Koester Metals, Inc., : Respondents. : MAGISTRATE'S DECISION Rendered on December 21, 2005 Law Offices of Thomas Tootle Co., L.P.A., and ThomasTootle, for relator. Jim Petro, Attorney General, and Eric J. Tarbox, for respondent Industrial Commission of Ohio. Eastman Smith, LTD, Thomas J. Gibney and Sarah E.Pawlicki, for respondent Koester Metals, Inc. IN MANDAMUS {¶ 4} Relator, Jerry [Tressler], 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 denied his application for permanent total disability ("PTD") compensation, and ordering the commission to find that he is entitled to that compensation. Findings of Fact: {¶ 5} 1. Relator has sustained three separate work-related injuries during the course of his employment and his claims have been allowed for: Claim Number 99-342285: Recurrent unilateral inguinal hernia, right; other mononeuritis lower, right represents the diagnosis of right ilioinguinal nerve entrapment syndrome; erectile dysfunction; depressive disorder, NEC. Claim Number 97-348700: Contusion of elbow, left. Claim Number 99-543673: Contusion of thigh, left. {¶ 1} 2. On March 8, 2002, relator filed his application for PTD compensation. In support thereof, relator attached the February 27, 2002 report of Timothy H. Hogan, M.D., who noted that relator's activities of daily living, such as lifting, prolonged standing, even sitting, kneeling, squatting, reaching, climbing, and bending, are moderately to severely hampered by his pain. Dr. Hogan opined that relator was unable to engage in any sustained remunerative employment and that he was permanently and totally disabled. {¶ 2} 3. Relator was also examined by Thomas E. Lieser, M.D., who issued a report dated May 14, 2002. Dr. Lieser opined that relator was not precluded from participating in a work setting. He indicated that relator could pursue remunerative employment on a full-time basis provided he avoid squatting, stooping or climbing. Dr. Lieser suggested that relator avoid very heavy or heavy work and limit himself to medium level functioning. As such, he opined that relator was capable of lifting 30 pounds regularly and up to 40 pounds occasionally. {¶ 3} 4. Relator was also examined by Daniel J. Kuna, Ph.D., who issued a report dated June 4, 2002. Dr. Kuna examined relator for his allowed psychological condition and assessed a three percent whole person impairment; opined that relator's "depressive disorder" was very mild and should resolve by August or September without treatment; that relator is not in need of continuing psychotherapy; and that relator's "depressive disorder" is not work-prohibitive. {¶ 4} 5. Relator was also examined by commission specialist, Gerald A. Cichocki, M.D., who issued a report dated June 20, 2002. Dr. Cichocki opined that relator's allowed condition of "erectile dysfunction" had reached maximum medical improvement ("MMI") and assessed a ten percent whole person impairment. {¶ 5} 6. Relator was also examined by Harvey A. Popovich, M.D., who issued a report dated July 17, 2002. Dr. Popovich opined that relator's allowed physical conditions had reached MMI, assessed a one percent whole person impairment, and concluded that relator was capable of performing sustained remunerative work activity of a sedentary nature. {¶ 6} 7. Relator was also examined by Donald J. Tosi, Ph.D., for his allowed psychological conditions. In his July 25, 2002 report, Dr. Tosi opined that: relator's allowed psychological conditions had reached MMI; assessed an eight percent whole person impairment; and opined that relator was able to return to his former position of employment or other employment for which he was otherwise qualified. {¶ 7} 8. A vocational assessment was prepared by Anthony Stead, MS, CRC, CCM, dated October 4, 2002. Mr. Stead completed a "Transferable Skills Analysis" in an attempt to identify positions for which relator would possess transferable and/or related employment skills. Based upon that analysis, Mr. Stead opined that relator could perform the following jobs: "Surveillance Systems Monitor; Security Guard; Self-Service Station, Clerk/Cashier; Bench Worker; and Assembler." Mr. Stead opined that relator's age of 43 placed him within the category of a younger person and that relator should retain the ability to learn new skills and adapt to new environments. Mr. Stead opined that relator's educational level should be sufficient for entry-level, unskilled, and semi-skilled tasks and that his work history would not be a barrier to reemployment. {¶ 8} 9. Another vocational assessment was prepared by John P. Kilcher, CRC, CCM, CDMS, LPC, NCC, dated October 9, 2002. Mr. Kilcher opined that relator's chronic groin pain would severely limit his ability to work and that relator's depression would further impede his ability to work. Mr. Kilcher opined that relator's education would not have provided him with skills that would allow him to obtain a job within his reduced residual functional capacity and would prevent him from developing new skills. Mr. Kilcher ultimately opined that the combination of relator's orthopedic and psychological impairments preclude him from performing any type of sustained remunerative employment on a full-time or part-time basis. {¶ 9} 10. Another vocational assessment was prepared by Tracy H. Young, MA, CRC, CCCP. In a report dated October 8, 2002, Ms. Young noted that relator's level of academic functioning would limit him to entry-level positions and that he lacked any transferable skills. Ms. Young also noted that, although relator had completed the 11th grade in a Joint Vocational School, he cannot read or write. Ms. Young considered relator's IQ to be below average and that he would have difficulty learning new academic or other skills required to perform entry-level sedentary jobs. {¶ 10} 11. Relator's application for PTD compensation was heard before a staff hearing officer ("SHO") on March 3, 2003. The SHO relied upon the medical reports of Drs. Popovich and Tosi and concluded that, from a physical standpoint, relator was limited to performing sedentary work and that, from a psychological standpoint, relator had no impairment. The SHO also relied upon the vocational report of Mr. Stead as follows: On October 4, 2002, a report was prepared by Anthony Stead, vocational expert, regarding the injured worker's capacity for employment, considering not only his functional capacity, but also his age, education, and work experience. Mr. Stead noted that the injured worker is only 43 years old. He completed the 11th grade but never obtained a GED degree. Mr. Stead assumed from a functional perspective that the injured worker would be limited to sedentary work. Mr. Stead opined numerous jobs that the injured worker would be capable of performing within his functional capacity. Mr. Stead noted that the injured worker is only 43 years old, and this is not a barrier to re-employment. At his age, he should retain the ability to learn skills and adapt to new environments. Mr. Stead offered several different jobs that the injured worker would be capable of performing, such as a surveillance systems monitor, a security guard, a worker at a self-service station, a clerk cashier, a bench worker, and an assembler. This Staff Hearing Officer finds the vocational analysis and conclusion of Mr. Stead to be persuasive. {¶ 16} In the alternative, the SHO denied relator's application due to his failure to seek rehabilitation: This Staff Hearing Officer acknowledges that the vocational rehabilitation file for the injured worker was closed on January 29, 2001. Admittedly, the injured worker cannot read nor write and may very well have limited options for returning to work. However, it is clearly noted in the vocational rehabilitation closure report that the injured worker did not wish to participate in vocational services. The injured worker requested that his case be closed. This Staff Hearing Officer finds no evidence in file that the injured worker has ever actually pursued and participated actively in a rehabilitation program. In fact, information submitted by the employer, by letter dated June 3, 2002, from Catherine Mikula reveals that the injured worker did not avail himself of an opportunity to improve his reading skills. Ms. Mikula was the program director for the Northwest Ohio private industry council. She attempted to help the injured worker who was deemed to be illiterate by the instant employer. Ms. Mikula volunteered to tutor the injured worker once or twice a week. The injured worker initially kept the appointments and was making progress in developing his reading skills. However, after at time, he failed to show up for appointments and eventually cancelled the tutoring program. This information reveals that the injured worker has not exhibited a desire to rehabilitate himself to reenter the workforce for jobs within his functional capacity. Further, at age 43, the injured worker has nearly 20 years of potential work life available for him. The evidence fails to establish that the injured worker has made a good-faith attempt to rehabilitate himself from a vocational standpoint. {¶ 17} 12. Thereafter, relator filed the instant mandamus action in this court. {¶ 11} Conclusions of Law: {¶ 18} 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. Stateex 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. Lewisv. Diamond Foundry 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 {¶ 19} 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 ex rel. Stephensonv. 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. {¶ 20} Relator challenges the commission's order in two respects: (1) the commission abused its discretion when it concluded that relator had the ability to learn new skills; and (2) the commission abused its discretion when it relied upon evidence that predated relator's application to conclude that relator lacked motivation to participate in rehabilitation. For the reasons that follow, the magistrate finds that relator has not demonstrated that he is entitled to a writ of mandamus. {¶ 21} In his first argument, relator contends that the commission's reliance upon Mr. Stead's conclusion that he has the ability to learn new skills and adapt to new environments is not supported by the record. In support of that argument, relator points to the other vocational reports. Both Ms. Young and Mr. Kilcher had opined that relator's intellectual abilities would make it difficult for him to learn new academic and other skills required to perform entry-level sedentary work. However, Mr. Stead disagreed and noted that relator should be able to learn new skills and adapt to a new work environment and identified certain jobs relator could perform. Further, Mr. Stead did note that relator indicated he was dyslexic. {¶ 22} Relator appears to argue that the commission was required to find that his difficulties reading and writing preclude him from performing any work in the future because he is incapable of learning new skills. However, as stated numerous times, the commission has the discretion to accept one vocational report while rejecting another and the commission is not required to explain its reasons therefore. See State ex rel. Jackson v.Indus. Comm. (1997), 79 Ohio St. 3d 266. Furthermore, to bind the commission to a rehabilitation report's conclusions would make the rehabilitation division, and not the commission, the ultimate evaluator of disability contrary to Stephenson. The commission was within its discretion to find that, at age 43, and given his educational achievements, relator could learn new skills and adjust to new work environments. This determination did not constitute an abuse of discretion. {¶ 23} Relator also challenges the commission's order from the standpoint that the commission relied upon the June 3, 2002 letter from Catherine Mikula indicating that relator did not avail himself of an opportunity to improve his reading skills. Relator points out that he had participated in this reading program in 1993, six years prior to the industrial injury which led to the most significant allowed conditions. However, the magistrate disagrees with relator's characterization of the amount of weight the commission gave to Ms. Mikula's letter. {¶ 24} The SHO noted that relator's vocational rehabilitation file was closed January 29, 2001, at the request of relator. Apparently, relator did not wish to pursue vocational rehabilitation at that time because of pain and he was going to apply for social security benefits instead. There is no evidence that, once his level of pain decreased/lessened, he ever sought rehabilitation or retraining again. The commission felt that, at age 43, and given his ability to learn new skills, relator should pursue rehabilitation. The commission can hold a claimant accountable for their failure to take advantage of opportunities for rehabilitation or retraining. State ex rel. Bowling v. Natl.Can Corp. (1996), 77 Ohio St. 3d 148. The commission also pointed to Ms. Mikula's letter as further evidence that relator has not exhibited a desire to rehabilitate himself in an effort to reenter the workforce. If Ms. Mikula's report would have been the only evidence upon which the commission had relied in finding that relator failed to avail himself of rehabilitation and if that would have been the sole reason for denying his application for PTD compensation, this magistrate would agree that a writ of mandamus was appropriate because the time period addressed by Ms. Mikula predated the industrial injury. However, because the commission first found that relator was capable of performing certain specific jobs of a sedentary nature, the commission did not abuse its discretion by citing an alternative reason for denying his application for PTD compensation and in citing to Ms. Mikula's 2002 letter as further evidence of relator's lack of willingness to participate in rehabilitation. Even if this court was to find that the commission's analysis regarding relator's failure to participate in rehabilitation constituted an abuse of discretion, a writ of mandamus still would not be appropriate as the commission found that relator had the ability to perform some sustained remunerative employment. {¶ 25} Based on the foregoing, this magistrate concludes that relator has not demonstrated that the commission abused its discretion in denying his application for PTD compensation and relator's request for a writ of mandamus should be denied.

2016-07-06 06:42:26.065788+00

OPINION {¶ 1} Plaintiff-appellant, Geraldine McKenzie, administrator of the Estate of Donald G. Spearry, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, FSF Beacon Hill Associates, LLC ("FSF"), CRES Management, LLC ("CRES"), and Trinity Property Consultants, LLC ("Trinity"). For the following reasons, we affirm. {¶ 2} On October 2, 2002, Spearry suffered serious burns while he showered in his apartment at The Pines at Creek's Edge ("The Pines"). Spearry, who lived with his sister, McKenzie, later told McKenzie that he had taken a bath in the combination shower/bathtub, and then stood up and turned on the shower to wash his hair. The water from the shower burned Spearry's face, and he fell back into the bathtub. When McKenzie heard Spearry scream for help, she rushed to the bathroom and found Spearry laying in the bathtub with burns on his feet, scrotum, and buttocks. {¶ 3} After a lengthy hospitalization, Spearry died. Seeking recovery for Spearry's injuries and death as well as her own loss, McKenzie filed suit against FSF, the owner of The Pines; CRES, the managing agent of The Pines from September 1, 2001 to October 1, 2002; and Trinity, the managing agent of The Pines from October 1, 2002 to the present. In her complaint, McKenzie asserted claims for negligence, alleging that defendants were liable because they set the temperature of the water heater that supplied the apartment at such a dangerously high level that the shower water scalded Spearry in seconds. {¶ 4} On June 15, 2005, defendants moved for summary judgment and argued that McKenzie could not provide sufficient evidence to create a question of fact as to defendants' negligence.1 McKenzie disagreed and, in her memorandum contra, pointed to evidence that she maintained proved that defendants set the water heater to its highest setting (denominated on the dial as "hot") without appreciating that, at that setting, the water heater would produce 160 degree water. Citing the testimony of The Pines' maintenance supervisor, McKenzie asserted that defendants knew that a water heater set on "hot" would emit scalding water. {¶ 5} In making her argument against summary judgment, McKenzie relied solely upon two photographs to establish the make and model of the water heater in apartment 1D, where Spearry and McKenzie once lived. McKenzie used the same photographs throughout the discovery process. After the parties completed the summary judgment briefing, a dispute arose as to the authenticity of the photographs. Ultimately, McKenzie admitted that the photographs did not, in fact, depict the water heater in apartment 1D. Upon defendants' motion, the trial court struck the photographs from the record and did not consider them in ruling on defendants' summary judgment motion. {¶ 6} On October 18, 2005, the trial court issued a decision granting summary judgment in defendants' favor. The trial court reduced this decision to judgment on October 31, 2005. McKenzie now appeals from the October 31, 2005 judgment entry. {¶ 7} On appeal, McKenzie assigns the following errors: [1.] The trial court committed reversible error by granting Defendants/Appellees FSF Beacon Hill Associates, LLC, Trinity Property Consultants, LLC and C.R.E.S. Management, LLC's Motion for Summary Judgment on all of Plaintiff/Appellant McKenzie's claims. [2.] The trial court committed reversible error by granting Defendant/Appellee C.R.E.S. Management, LLC's separate Motion for Summary Judgment. {¶ 8} Appellate review of summary judgment motions is de novo.Helton v. Scioto Cty. Bd. Of Commrs. (1997), 123 Ohio App. 3d 158, 162. "When reviewing a trial court's ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court." Mergenthal v. Star Banc Corp. (1997),122 Ohio App. 3d 100, 103. Civ. R. 56(C) provides that summary judgment may be granted when the moving party demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Grady v. State Emp. RelationsBd. (1997), 78 Ohio St. 3d 181, 183. {¶ 9} When seeking summary judgment on the ground that the nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St. 3d 280,293. The moving party does not discharge this initial burden under Civ. R. 56 by simply making a conclusory allegation that the nonmoving party has no evidence to prove its case. Id.; Vahila v. Hall (1997),77 Ohio St. 3d 421, 429. Rather, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ. R. 56(C) that the nonmoving party has no evidence to support the nonmoving party's claims. Dresher, supra, at 293. If the moving party meets this initial burden, then the non-moving party 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 non-movant does not so respond, summary judgment, if appropriate, shall be entered against the non-moving party. Id. {¶ 10} By her first assignment of error, McKenzie argues that a question of fact remains as to defendants' negligence in setting the water heater at an unsafe temperature. We disagree. {¶ 11} McKenzie asserts defendants are negligent per se because they violated R.C. 5321.04(A)(4), which requires landlords to "[m]aintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, and air conditioning fixtures and appliances, and elevators, supplied or required to be supplied by him." As this provision sets forth specific duties that are the same under all circumstances and are imposed upon all landlords, a violation of R.C. 5321.04(A)(4) constitutes negligence per se. Sikora v. Wenzel (2000),88 Ohio St. 3d 493, 498; Shroades v. Rental Homes, Inc. (1981),68 Ohio St. 2d 20, 25. In order to establish negligence per se, a plaintiff must prove that the defendant failed to perform its statutory duty.2Chambers v. St. Mary's School (1998), 82 Ohio St. 3d 563, 565. Consequently, we must examine the record for evidence that defendants failed to perform their statutory duty to maintain the water heater in "good and safe working order and condition." {¶ 12} Here, McKenzie claims that defendants violated R.C. 5321.04(A)(4) when they set the water heater in apartment 1D to "hot," thus increasing the water temperature to 160 degrees — an unsafe temperature. The record is devoid of any direct evidence as to the temperature setting of the water heater at the time of Spearry's injuries. McKenzie, however, argues that a reasonable finder of fact could infer the setting from the testimony of two maintenance technicians who worked at The Pines. The first maintenance technician, Robert White, testified that he personally set all the water heaters he installed at The Pines to "hot." White, however, did not install the water heater in apartment 1D, so a reasonable finder of fact could not infer the temperature setting of that water heater from this testimony. Similarly, although maintenance technician Robert Trail testified that he, too, personally set water heaters to "hot," there is no evidence that Trail ever set the temperature of the water heater in apartment 1D. {¶ 13} Contrary to McKenzie's allegations, both White and Trail testified that setting water heaters to "hot" was their personal practice and not an apartment-wide policy. Therefore, no factual basis exists on which to infer that all the water heaters at The Pines were set to "hot." {¶ 14} Thus, McKenzie is left with White's testimony that he set the water heaters he installed to "hot" because his one-time supervisor, Timothy McCain, told him to do so.3 However, in order to accept this testimony as proof that the water heater in apartment 1D was set to "hot," a reasonable finder of fact would have to stack inference upon inference. First, the finder of fact would have to infer that McCain also told the other members of the maintenance staff, at least four other technicians, to set all water heaters to "hot." Then, the finder of fact would have to use this first inference as the sole basis on which to infer that one of those other technicians set the apartment 1D water heater to "hot" per McCain's instruction. A finder of fact is prohibited from drawing an inference solely and entirely from another inference. Cole v. Contract Framing, Inc., 162 Ohio App. 3d 612,2005-Ohio-4244, at ¶ 17. Consequently, White's testimony that McCain told him to set water heaters to "hot" is not evidence that the water heater in apartment 1D was set to "hot." {¶ 15} Moreover, even if McKenzie could establish the temperature setting of the apartment 1D water heater as "hot," McKenzie failed to present any evidence as what temperature of water would result from the "hot" setting. McKenzie introduced two expert reports that stated that the "hot," or maximum, setting on the subject water heater would cause the water to heat to 160 degrees. However, neither expert was properly informed as to the make and model of water heater at issue. McKenzie does not dispute that the water heater in apartment 1D was different than what she originally believed, and that she did not discover the discrepancy until July 25, 2005. By that time, the experts had both issued their reports, and both reports relied upon erroneous information. Therefore, the record contains no evidence as to the temperature the actual water heater would reach when set to "hot." {¶ 16} Without evidence as to the temperature setting or temperature range of the water heater in apartment 1D, a reasonable finder of fact could only speculate as to whether defendants failed to maintain the water heater in "good and safe working order and condition." "`Mere speculation does not create a material issue of fact.'" Sharp v.Andersons, Inc., Franklin App. No. 06AP-81, 2006-Ohio-4075, at ¶ 18, quoting Wike v. Giant Eagle, Inc., Portage App. No. 2002-P-0049, 2003-Ohio-4034, at ¶ 32. Accordingly, we conclude that the trial court properly granted summary judgment in defendants' favor, and we overrule McKenzie's first assignment of error. {¶ 17} Given our ruling upon McKenzie's first assignment of error, her second assignment of error is moot. {¶ 18} For the foregoing reasons, we overrule McKenzie's first assignment of error and overrule as moot McKenzie's second assignment of error. Further, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. McGRATH and TRAVIS, JJ., concur. 1 Six days later, defendants filed a "Supplemental Motion for Summary Judgment" in which they set forth the same argument and, in addition, contended that CRES was not liable because its management of The Pines ended a day before the accident. 2 Liability for a violation of R.C. 5321.04(A)(4) can be excused under certain circumstances. Sikora, supra, at 498. This legal doctrine is not applicable here because McKenzie cannot prove that defendants' actions violated R.C. 5321.04(A)(4). Absent a violation of the relevant statute, a defendant's actions need not be excused. 3 In contrast to White's testimony, Trail stated that he never talked with anyone, including McCain, about where to set the temperature of a water heater. McCain testified that he never told any of the maintenance technicians he supervised to set water heaters at "hot."

2016-07-06 06:42:26.208255+00

OPINION {¶ 1} Appellant James Thompson appeals the decision of the Court of Common Pleas, Tuscarawas County, which granted summary judgment to Appellees Dover Elks, et al., regarding appellant's complaint alleging sex discrimination in employment and wrongful discharge. STATEMENT OF THE FACTS AND CASE {¶ 2} In 1982, Appellant was hired by the Dover Elks Lodge. Appellant worked as cook in the Lodge Grill Room for 10 years. {¶ 3} In 1992, Appellant was promoted to Grill Room Manager. Appellant's duties as Grill Room Manager included, inter alia, supervising employees under his charge including barmaids and a janitor. {¶ 4} In February, 1999, the Dover Elks Lodge Trustees voted unanimously to terminate Appellant, basing their decision on incidents of intoxication, insubordination and misconduct in dealing with subordinate employees. The termination notice stated that the Trustees had lost confidence in Appellant's ability to manage the business of the Grill Room without generating conflict among the members, trustees and employees. {¶ 5} Appellant would drink at the Lodge bar after his shift and become intoxicated. On one occasion, Appellant crashed his car into the Dover Police Department Building located adjacent to the Lodge. {¶ 6} The Trustees also received complaints concerning Appellant making lewd remarks toward the barmaids. One of the trustees witnessed appellant proposition a barmaid for oral sex. {¶ 7} Appellant was also the subject of a sexual harassment complaint by another barmaid. While denying same, Appellant admitted that he engaged in a sexual relationship with said barmaid which continued for approximately one year. {¶ 8} Appellant filed a Complaint with the Tuscarawas County Court of Common Peas alleging sexual discrimination in employment and wrongful discharge in violation of public policy. {¶ 9} On September 26, 2001, Appellees filed a Motion for Summary Judgment on the issues contained in Appellant's complaint. {¶ 10} On February 13, 2002, the trial court granted Appellee's Motion for Summary Judgment and dismissed Appellant's complaint. {¶ 11} Appellant filed a notice of appeal therefrom and herein raises the following sole Assignment of Error: ASSIGNMENT OF ERROR {¶ 12} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT." I. {¶ 13} In his sole Assignment of Error, appellant contends that the trial court erred in granting summary judgment in favor of appellees. We disagree. {¶ 14} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987),30 Ohio St. 3d 35, 36. As such, we must refer to Civ.R. 56 which provides, in pertinent part: Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. {¶ 15} Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall (1997),77 Ohio St. 3d 421, 429, citing Dresher v. Burt (1996), 75 Ohio St. 3d 280. {¶ 16} Appellant contends that he was unlawfully discriminated against based on his gender, in violation of R.C. §§ 4112.02. Generally, in order to establish a prima facie case of employment discrimination, the employee must prove: (1) that he was a member in a protected class; (2) that he was discharged from his job by the employer; (3) that he was qualified for the position; and (4) that he was replaced by a person who did not belong to the protected class. McDonnell DouglasCorp. v. Green (1973), 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668. However, in cases involving reverse gender discrimination, courts have modified the McDonnell standard to enable plaintiffs who are members of a dominant group to prove a prima facie case of discrimination. To show reverse discrimination and to avoid a summary judgment, the plaintiff must establish a prima facie case by showing: (1) background circumstances supporting the suspicion that the defendant is the unusual employer who discriminates against the majority; and (2) that the employer treated employees who were similarly situated, but not members of the protected group, more favorably. Murrav v. Thistledown RacingClub, Inc. (C.A.6, 1985), 770 F.2d 63, 67. {¶ 17} In the case at bar, Appellant failed to put forth any evidence that Appellee Dover Elks Lodge is the unusual employer who discriminates against the majority, i.e. males. {¶ 18} Furthermore, while Appellant's former duties were temporarily assigned and distributed among current employees who were in fact female, Appellant's position was ultimately filled by a man. InBarnes v. GenCorp (C.A.6, 1990), 896 F.2d 1457, the court held that an employee is not replaced when his duties are distributed among existing employees already performing related work. Wagner v. Allied Steel andTractor Co. (1995) 105 Ohio App. 3d 611. {¶ 19} Additionally, assuming arguendo that appellant had established a prima facie case of reverse discrimination, if an employer presents a legitimate, nondiscriminatory reason for an employee's discharge after the employee makes prima facie case of discrimination, the employee must show that employer's reason for discharge is pretextual. Id. {¶ 20} Appellee advanced legitimate nondiscriminatory reasons for firing employee, thereby rebutting Appellant-employee's discrimination claim. {¶ 21} This Court finds that the plaintiff failed to establish a prima facie case of reverse gender discrimination pursuant to theMcDonnell standard, as modified for reverse discrimination. Therefore, Appellees were entitled to summary judgment on the claim of gender discrimination. {¶ 22} The sole Assignment of Error is overruled. {¶ 23} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Tuscarawas County, Ohio, is hereby affirmed. By: Boggins, J., Hoffman, P.J., and Edwards, J., concur. Topic: Summary Judgment.

2016-07-06 06:42:26.564671+00

OPINION {¶ 1} Defendant-appellant, Joseph A. Cross, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion to withdraw his guilty plea and motion for post-conviction relief. For the following reasons, we affirm the judgment of the trial court. {¶ 2} In May 1999, defendant was indicted by the Franklin County Grand Jury on two counts of rape, in violation of R.C. 2907.02 (counts one and three), and four counts of gross sexual imposition, in violation of R.C. 2907.05 (counts two, four, five, and six). Regarding counts one, two, three, and four, the offenses were alleged to have occurred "on or about September 1, 1987 through June 1, 1988" when the victims were 12 years old. On June 11, 1999, defendant pled not guilty as charged. Counsel was appointed to represent defendant. {¶ 3} On June 24, 1999, defendant moved to dismiss counts one, two, three, and four of the indictment, on the basis that they were not brought within the time period specified in R.C. 2901.13, and alternatively, on the basis that pre-indictment delay violated the Ohio Constitution and the United States Constitution. The trial court denied defendant's motion to dismiss counts one, two, three, and four of the indictment. In its decision, the trial court determined that the criminal charges did not violate "either the applicable statute of limitations or the speedy-trial provisions of the United States Constitution or the Ohio Constitution." (Trial court July 27, 1999 decision.) {¶ 4} On December 22, 1999, defendant pled guilty to two counts of attempted rape, a lesser-included offense to counts one and three. Upon recommendation of the state, the trial court entered a nolle prosequi as to counts two, four, five, and six. On February 4, 2000, the trial court sentenced defendant to seven to 15 years as to count one and seven to 15 years as to count three, to be served concurrently. {¶ 5} On July 11, 2001, more than one year after defendant was sentenced to prison, defendant filed a pro se motion entitled "Writ of Error Coram Nobis" in the trial court. In the filing, defendant moved to withdraw his guilty plea on the basis that the trial court lacked subject-matter jurisdiction in the case. The trial court treated the filing as a petition for post-conviction relief pursuant to R.C. 2953.21 and denied it on July 27, 2001, finding, inter alia, that defendant had failed to demonstrate that his guilty plea was involuntary or that the court lacked jurisdiction. Defendant filed a motion for reconsideration of the July 27, 2001 decision, which was denied. On December 31, 2001, defendant filed a "Motion to Amend Indictment or Criminal Complaint and Motion to Sever the State of Ohio as a party," which was denied. On February 7, 2002, defendant filed a motion for a speedy trial, which was denied. {¶ 6} On June 13, 2003, defendant moved for leave to file a delayed appeal pursuant to App. R. 5. This court, in State v. Cross (Sept. 2, 2003), Franklin App. No. 03AP-597 (Memorandum Decision), denied said motion on the basis that defendant failed to demonstrate a reasonable explanation for his failure to file a timely appeal. {¶ 7} On September 29, 2003, defendant filed a petition for post-conviction relief pursuant to R.C. 2953.21, and a motion to withdraw his guilty plea pursuant to Crim. R. 32.1. On October 27, 2003, the trial court denied defendant's petition for post-conviction relief and his motion to withdraw his guilty plea. In its decision, the trial court found that defendant had not shown that his guilty plea was made involuntarily, and also found defendant's petition for post-conviction relief to be without merit. {¶ 8} Defendant appeals from this judgment and assigns the following error: The trial court abused its discretion when it failed to hold an evidentiary hearing on appellant's petition for state post-conviction relief, in violation of U.S.C. Const. Amends. 5, 14, and Ohio Const. Article I, § 16, namely due process of law, when the appellant's petition conformed to the statutory requirements of R.C. § 2953.23(A)(1)(b), (2), because appellant's reliance upon united states supreme court holdings in a new case, Stogner v. California, 123 S. Ct. 2446 (2003), in which a new rule (federal) of law was established and had the appellant had the benefit of stogner, at the trial court procedures, appellant would never had been found guilty of the offense to which appellant plead [sic] guilty too [sic]. {¶ 9} By his assignment of error, defendant asserts that the trial court abused its discretion in denying his petition for post-conviction relief without holding an evidentiary hearing. {¶ 10} Under R.C. 2953.21, post-conviction relief may be granted where the petitioner demonstrates that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the United States Constitution. If no direct appeal is taken, a petition for post-conviction relief shall be filed no later than 180 days after the expiration of the time for filing the appeal, except as provided in R.C. 2953.23. R.C. 2953.21(A). Clearly, defendant's petitions for post-conviction relief were filed beyond the time specified in R.C. 2953.21(A). {¶ 11} R.C. 2953.23 provides that a court may not entertain a petition filed after the expiration of the time period prescribed in R.C. 2953.21(A) or a second petition or successive petitions unless an exception in R.C. 2953.23(A) applies. At the time of defendant's conviction and at the time he filed his September 29, 2003 petition for post-conviction relief, R.C. 2953.23(A) provided as follows: Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless both of the following apply: (1) Either of the following applies: (a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief. (b) Subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right. (2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence. {¶ 12} By his assignment of error, defendant asserts that R.C. 2953.23(A)(1)(b) and (2) apply in this case. According to defendant, the United States Supreme Court, in Stogner v. California (2003), 539 U.S. 607,123 S. Ct. 2446, recognized a new federal or state right that applies to him. In Stogner, at 632-633, the United States Supreme Court concluded that a law "enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution." {¶ 13} In his reply brief, at 2, defendant asserts the following, "To hold a statute of limitations in abeyance until the so-called `corpus delecti' [sic] is discovered is against the basic proposition of the holding in Stogner." Defendant's argument is unpersuasive. The holding inStogner does not apply to defendant's situation. In the case at bar, the prosecution was brought prior to the expiration of the statute of limitations in effect when defendant committed the offenses for which he was convicted. Stated differently, the time period set forth in the applicable statute of limitations had not expired prior to the prosecution in this case. {¶ 14} In the case at bar, the applicable statute of limitations was R.C. 2901.13, which, at the time the offenses occurred in this case, read as follows: (A) Except as otherwise provided in this section, a prosecution shall be barred unless it is commenced within the following periods after an offense is committed: (1) for a felony other than aggravated murder or murder, six years; * * * (F) The period of limitation shall not run during any time when the corpus delicti remains undiscovered. {¶ 15} The Supreme Court of Ohio, in State v. Hensley (1991),59 Ohio St. 3d 136, syllabus, held that, "[f]or purposes of R.C. 2901.13(F), the corpus delicti of crimes involving child abuse or neglect is discovered when a responsible adult, as listed in R.C. 2151.421, has knowledge of both the act and the criminal nature of the act." The court, at 139, further stated that this rule "strike[s] a proper balance between the need to place some restriction on the time period within which a criminal case may be brought, and the need to ensure that those who abuse children do not escape criminal responsibility for their actions." {¶ 16} Furthermore, in State v. Elsass (1995), 105 Ohio App. 3d 277,281, this court expressly rejected the argument "that, if there is testimony or evidence to demonstrate that the alleged victim is aware of the corpus delicti, or should be aware through reasonable diligence, then the statute of limitations begins to run." Therefore, unless a responsible adult, as listed in R.C. 2151.421, discovers the corpus delicti, the statute of limitations is tolled at least until the child-victim reaches the age of majority. Regarding the case at bar, even if the statute of limitations began to run when the victims turned 18, the prosecution was commenced within six years of that date. Furthermore, nothing in the record indicates that the corpus delicti was discovered by a responsible adult, as listed in R.C. 2151.421, prior to that date. Therefore, the six-year statute of limitations had not expired prior to the commencement of the prosecution in this case. Consequently, we find that the holding of Stogner does not apply to this case. {¶ 17} Regarding his petition for post-conviction relief, defendant failed to present facts establishing the applicability of an exception to the 180-day time limit for the filing of a petition for post-conviction relief. On that basis alone, we conclude that the trial court did not err when it denied his motion for post-conviction relief without conducting an evidentiary hearing. {¶ 18} In addition to filing a petition for post-conviction relief on September 29, 2003, defendant also filed a motion to withdraw his guilty plea. Crim. R. 32.1 provides as follows: A motion to withdraw a plea of guilty or no contest 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. Under Crim. R. 32.1, a trial court may grant a post-sentence motion to withdraw a guilty plea only to correct a manifest injustice. Therefore, "a defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice." State v. Smith (1977), 49 Ohio St. 2d 261, paragraph one of the syllabus. {¶ 19} Regarding his Crim. R. 32.1 motion that was denied, defendant states the following in his merit brief, at 2-3: "For the sake of brevity, Appellant has consolidated his argument to include both the denial of Appellant's post-conviction petition and his 32.1, motion to withdraw guilty plea, because a favorable decision on appeal from the post-conviction petition is depositive [sic] of the case on appeal." Apparently, defendant relies on his arguments that the trial court erred in denying his petition for post-conviction relief as support for an assertion that the trial court improperly denied his motion to withdraw his guilty plea without holding a hearing. However, for the reasons stated above, we have concluded that the trial court did not err in denying his petition for post-conviction relief. {¶ 20} Additionally, we note that defendant has not argued, in this appeal, that his plea was not entered knowingly, voluntarily, and intelligently. Nevertheless, to the extent defendant challenges the trial court's denial of his motion to withdraw his guilty plea, we find no error in the trial court's denial of said motion. We observe that defendant made various allegations in his Crim. R. 32.1 motion and attached affidavit. However, the various claims in defendant's Crim. R. 32.1 motion and attached affidavit are directly contradicted by the record, general and conclusory in substance, or, even if true, insufficient to necessitate an evidentiary hearing on his motion to withdraw his guilty plea. Upon our review of the record, we conclude that the trial court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea under Crim. R. 32.1 without holding an evidentiary hearing. {¶ 21} For the foregoing reasons, we overrule defendant's sole assignment of error and affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. Lazarus, P.J., and Bryant, J., concur.

2016-07-06 06:42:26.590961+00

OPINION Defendant-appellant, Timothy A. Yocum, appeals a decision by the Clermont County Municipal Court denying his motion to suppress evidence. At the hearing on the motion to suppress, Trooper Mark Johnson of the Ohio State Highway Patrol testified as follows: At about 1:00 a.m. on May 4, 1996, Johnson was sitting in a gas station lot on State Route 28 in Miami Township waiting to make a right turn into the eastbound lane. As Johnson looked at the oncoming eastbound traffic, he observed appellant's vehicle driving eastbound on State Route 28. Johnson testified that while appellant never left the road, appellant's vehicle was coming towards his until "[a]t the very last second [appellant] jerked it and continued eastbound on State Route 28." Johnson testified that appellant's vehicle was about three or four feet away from his before appellant jerked it. At that point, Johnson pulled out behind appellant. As Johnson was following appellant, Johnson observed appellant turn right onto Wolfpen-Pleasant Hill Road from the straight only lane instead of the right turn lane. About one mile down the road, appellant crossed the right-hand edge line by about one-fourth of the width of his car. In doing so, appellant nearly struck three mailboxes that were two to three feet off the roadway. Appellant subsequently jerked his car back onto the roadway. Because the road was dangerously narrow at that point, Johnson decided not to pull appellant over then but to follow him instead. Appellant continued to "rid[e] the white line" or drive close to it. Appellant never drove left of center. Johnson eventually stopped appellant. Upon approaching appellant's vehicle, Johnson noticed a strong odor of alcohol on appellant's breath, that appellant had red, glassy eyes, and that his speech was very slurred. Appellant subsequently failed to satisfactorily complete three field sobriety tests and was arrested. Appellant was charged with failure to drive within marked lanes in violation of R.C. 4511.33, failure to wear a seatbelt in violation of 4513.263(B)(1), and driving while under the influence of alcohol ("DUI") in violation of R.C. 4511.19(A)(1) and (A)(3). Following the denial of his motion to suppress, appellant entered a no contest plea to the DUI charge under R.C.4511.19(A)(3) and was found guilty. The remaining charges were dismissed. This appeal followed. In his sole assignment of error, appellant argues that the trial court erred in overruling his motion to suppress "as the arresting officer lacked probable cause to stop and detain appellant." In order to conduct an investigative stop of a motor vehicle, a police officer must have a reasonable and articulable suspicion that the driver is engaged in criminal activity or is operating his vehicle in violation of the law. State v. Johnson (1995),105 Ohio App. 3d 37, 40, citing Delaware v. Prouse (1979), 440 U.S. 648,99 S. Ct. 1391; State v. Brandenburg (1987), 41 Ohio App. 3d 109, 110. "The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances." State v. Bobo (1988), 37 Ohio St. 3d 177, 178, certiorari denied (1988), 488 U.S. 910, 109 S. Ct. 264. A trial court's decision overruling a motion to suppress must not be disturbed on appeal where it is supported by substantial evidence. Maumee v. Johnson (1993), 90 Ohio App. 3d 169, 171. Appellant argues that "being at or upon the right hand edge line marker while driving four to five miles on a `dangerous' county road [was] not evidence of impaired driving so as to warrant a stop and detention." We agree with appellant, and have so held, that not every crossing of the right-hand edge line, regardless of circumstances, constitutionally justifies a stop of the vehicle. Johnson, 105 Ohio App.3d at 40-41; State v. Wilhelm (Apr. 14, 1997), Butler App. No. CA96-12-272, unreported. Indeed, we have found previously that "[e]vidence of a momentary or minuscule crossing of the right edge line, without more, does not justify a stop of the vehicle." Johnson, 105 Ohio App.3d at 41. (Emphasis added.) In the case at bar, appellant did not just merely cross the right-hand edge line once. The record clearly shows that appellant's erratic driving also included nearly hitting Johnson's vehicle, turning right onto a roadway from a straight only lane, nearly hitting three mailboxes, and jerking his car at least twice to bring it back onto the roadway. In light of appellant's foregoing driving, we find that Johnson had reasonable suspicion to stop appellant. Accordingly, we hold that the trial court properly denied appellant's motion to suppress. Appellant's sole assignment of error is overruled. Judgment affirmed. WALSH, J., concurs. POWELL, P.J., concurs in judgment only.

2016-07-06 06:42:26.611867+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, State of Ohio, appeals the judgment of the Hamilton County Court of Common Pleas granting the motion for expungement filed by defendant-appellee, Paul E. Vidourek, Jr. For the following reasons, we reverse the trial court's judgment. In 1991, Vidourek entered a guilty plea to one count of carrying a concealed weapon under R.C. 2923.12. At the same time, he was convicted of driving while under the influence of alcohol. On November 21, 2001, the trial court granted Vidourek's motion to expunge his record. In a single assignment of error, the state now contends that the trial court erred in granting the motion for expungement. This assignment of error is well taken. To be eligible for expungement, the movant must be a "first offender."1 Pursuant to R.C. 2953.31(A), a conviction for a violation of section 4511.19 or an analogous municipal DUI ordinance is to be considered a previous or subsequent conviction precluding expungement. Therefore, as Vidourek concedes, he was not eligible for expungement. Vidourek argues, though, that because the state failed to object to the expungement motion on the basis of the contemporaneous DUI conviction, it waived any argument with respect to the error.2 Pursuant to Crim.R. 52(B), the failure to raise an objection results in the waiver of all but plain error. To find plain error, this court must conclude that, but for the trial court's error, the result of the proceeding clearly would have been different.3 In the case at bar, the trial court's failure to recognize that the DUI conviction precluded expungement constituted plain error. The trial court granted the expungement under the misapprehension that the contemporaneous conviction for DUI did not prevent Vidourek from being classified a "first offender" under R.C. 2953.31(A). But for this error, the motion for expungement would have been denied.4 Accordingly, we sustain the assignment of error. The judgment of the trial court is reversed, and we hereby deny the motion for expungement. 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. Painter, P.J., Doan and Hildebrandt, JJ. 1 R.C. 2953.32. 2 At the hearing on the motion, the prosecutor merely lodged a "general objection" to the expungement. 3 See State v. Underwood (1983), 3 Ohio St. 3d 12, 444 N.E.2d 1332, syllabus. 4 The state argues that the trial court lacked subject-matter jurisdiction to grant the expungement because Vidourek was not a first offender. We are not convinced by this argument. Although the trial court improperly exercised its jurisdiction in granting the motion, a common pleas court does possess subject-matter jurisdiction to entertain expungement motions. See R.C. 2953.32 and State v. Wilfong (Mar. 16, 2001), 2nd Dist. No. 2000-CA-75, jurisdictional motion overruled (2001),92 Ohio St. 3d 1449, 751 N.E.2d 486.

2016-07-06 06:42:26.684665+00

DECISION AND JUDGMENT ENTRY {¶ 1} This case involves a judgment rendered in favor of an injured worker who filed a negligence action against the owner of the construction project. Alan B. Evans appeals the trial court's decision to apply the amended version of R.C. 1343.03, the prejudgment interest statute, rather than the version that was in effect at the time he filed his complaint. The Dayton Power and Light Company ("DPL") cross-appeals the court's award of prejudgment interest, arguing that the court abused its discretion by making the award because Evans did not prove that DPL failed to make a good faith effort to settle the case and that he did not fail to make a good faith effort to settle the case. {¶ 2} We conclude the court's finding that DPL did not make a good faith effort to settle, on the purported basis that it failed to fully cooperate in discovery proceedings, is unreasonable. The record reveals that Evans filed status reports with the court indicating that DPL was fully complying with discovery. And, Evans failed to demonstrate that two documents that DPL allegedly failed to provide him had any bearing on his ability to settle his claims. The court's determination that DPL failed to rationally evaluate its risks and potential liability is also unreasonable. In reaching its decision that it had no liability, DPL clearly considered: (1) the relevant statutory/case law, and (2) documented facts, which it identified through discovery and its own investigation. Thus, it conducted a rational evaluation of its risk and potential liability. The court failed to consider these factors and instead relied on the fact that DPL's analysis ultimately proved to be incorrect. The proper inquiry was whether DPL had an objectively reasonable basis to believe it had no liability. Because DPL had such a belief, it was not required to respond to Evans' settlement offers. {¶ 3} Since the award of prejudgment interest was unreasonable, we reverse the judgment. Evans' assignment of error is moot based on our disposition of DPL's cross-assignment of error. I. CASE HISTORY {¶ 4} In March 1995, Evans suffered serious injuries when he fell from a catwalk while working at a power plant operated by DPL. Evans, a pipefitter, worked for Enerfab Corporation ("Enerfab"), an independent contractor hired by DPL to perform maintenance work at the plant. In March 1997, Evans filed suit against DPL, alleging its negligence caused his injuries. Evans voluntarily dismissed this action in June 2000 but refiled the suit a year later. {¶ 5} In June 2002, the case went to a jury trial. The jury returned a verdict in Evans' favor, awarded damages totaling $1,104,215.44, and found that Evans was 27% at fault. Thus, the court entered judgment in the amount of $806,077.27 in Evans' favor. Evans filed a motion for prejudgment interest, which the trial court granted. {¶ 6} DPL appealed the trial court's denial of various motions that are not relevant here and the court's award of prejudgment interest to Evans. We reversed solely on the award of prejudgment interest after finding that the court applied the wrong legal standard in making the award. We remanded the issue of prejudgment interest to the trial court for reconsideration.Evans v. Dayton Power and Light Co., Adams App. No. 03CA763, 2004-Ohio-2183 ("Evans I").1 {¶ 7} On remand, the court again awarded prejudgment interest to Evans after determining that a revised version of the prejudgment interest statute applied. This significantly reduced the amount of interest Evans can collect. Therefore, both parties appealed the court's judgment. {¶ 8} Evans assigns the following error: The Common Pleas Court erred in applying the amended version of Ohio's prejudgment interest statute, R.C. § 1343.03(C) effective June 2, 2004, retrospectively to this case, which was pending on appeal as of the effective date, to limit the period of time and the portion of the underlying judgment for which Plaintiff has a right to recover prejudgment interest. {¶ 9} DPL assigns this error on cross-appeal: The trial court erred when it granted Evans' motion for prejudgment interest. Because we find it to be dispositive, we consider DPL's cross-appeal first. II. PREJUDGMENT INTEREST A. Principles And Standards {¶ 10} R.C. 1343.03(C) controls the award of prejudgment interest in tort cases. The legislature enacted R.C. 1343.03(C) to prevent parties who have engaged in tortious conduct from frivolously delaying the ultimate resolution of cases and to encourage good faith efforts to settle controversies outside a trial setting. Kalain v. Smith (1986), 25 Ohio St. 3d 157, 159,495 N.E.2d 572, 574. The statute also serves the additional purpose of compensating a plaintiff for the defendant's use of money that rightfully belonged to the plaintiff. Musisca v.Massillon Community Hosp., 69 Ohio St. 3d 673, 676, 1994-Ohio-451, 635 N.E.2d 358, 360. {¶ 11} A plaintiff is entitled to prejudgment interest under R.C. 1343.03(C) when four conditions exist.2 First, the party seeking interest must petition the court by a motion filed after judgment and no later than fourteen days after entry of judgment. Second, the court must hold a hearing. Third, the court must find that the party required to pay the judgment failed to make a good faith effort to settle. And finally, the court must find that the party to whom the judgment is to be paid did not fail to make a good faith effort to settle the case. Moskovitzv. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 658, 1994-Ohio-324,635 N.E.2d 331; R.C. 1343.03(C). If a party meets the four statutory requirements, the decision to allow prejudgment interest is not discretionary. Moskovitz at 658. {¶ 12} The party seeking prejudgment interest bears the burden of proof. Moskovitz at 658. Although the court must award prejudgment interest if the moving party establishes the four requirements of R.C. 1343.03(C), the decision as to whether a party's settlement efforts indicate good faith is generally within the sound discretion of the trial court. Moskovitz at 658; Kalain at 159, 495 N.E.2d 572. Absent a clear abuse of discretion, we will not reverse the trial court's finding on the issue. Kalain at 159, 495 N.E.2d 572. Abuse of discretion is an attitude on the part of the trial court that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St. 3d 83, 87, 482 N.E.2d 1248. {¶ 13} DPL concedes that the first two requirements of R.C.1343.03(C) are satisfied but argues that the trial court abused its discretion in finding that it failed to make a good faith effort and that Evans did not fail to make a good faith effort to settle the case. The Ohio Supreme Court has held that a party has not "failed to make a good faith effort to settle" under R.C.1343.03(C) if it has: (1) fully cooperated in discovery proceedings; (2) rationally evaluated its risks and potential liability; (3) not attempted to unnecessarily delay any of the proceedings; and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. But, when a party has a good faith, objectively reasonable belief that it has no liability, it need not make a monetary settlement offer. Kalain v. Smith (1986), 25 Ohio St. 3d 157,495 N.E.2d 572, at syllabus. In sum, a party may have "failed to make a good faith effort to settle" even when its conduct does not arise to the level of bad faith. Id. at 159, citing Mills v. Dayton (1985), 21 Ohio App. 3d 208, 486 N.E.2d 1209. {¶ 14} A party must satisfy all four of the Kalain requirements — noncompliance with even one factor indicates that the party has failed to make a good faith effort to settle. See, e.g., Wagner v. Marietta Area HealthCare, Inc., Washington App. No. 00CA17, 2001-Ohio-2424 (affirming award of prejudgment interest when defendant cooperated in discovery and did not attempt to delay proceedings, but court found she did not rationally evaluate the risks and potential for liability or possess a good faith, objectively reasonable belief that she had no liability); Myres v. Stucke (Oct. 29, 1999), Trumbull App. No. 98-T-0132 (trial court erred by denying prejudgment interest when it concluded that the defendant failed to properly evaluate his risks and potential liability). {¶ 15} In considering a request for prejudgment interest, the trial court is not limited to considering the evidence presented at the prejudgment interest hearing. The court may also review the evidence presented at trial and its prior rulings and jury instructions, especially when considering such factors as the type of case, the injuries involved, applicable law, and the available defenses. Galmish v. Cicchini, 90 Ohio St. 3d 22, 27, 2000-Ohio-7, 734 N.E.2d 782. {¶ 16} Here, the trial court found that Evans' claimed damages were $75,000 in medical damages, $1.4 million in future earnings, and $195,000 in lost wages. Prior to trial, Evans made a settlement demand of $900,000, which he later reduced to $650,000 and then to $400,000. DPL had "reserves" of $200,000 and its insurer, Miami Valley Insurance Company ("MVIC"), set its excess reserves for $250,000. These reserves represented the "worst case scenario" for DPL. The court found that despite the reserve amounts and counsel's recommendation that DPL increase its settlement offer to $120,000, DPL never offered Evans more than $75,000 to settle the case. Further, DPL was aware that Evans would reject the $75,000 offer, but believed Evans had nothing more than a "nuisance claim." DPL's senior in-house counsel believed this was a non-liability case. The court also noted that DPL lost two motions for summary judgment and a motion for a directed verdict. {¶ 17} The court concluded that DPL failed to make a good faith effort to settle Evans' claims by failing to fully cooperate in discovery and withholding documents requested by Evans, and by failing to make a good faith settlement offer and instead treating the case as a nuisance case. The court also found that DPL "failed to correctly analyze this case as a non-liability case." The court determined that Evans did not fail to make a good faith settlement offer as he cooperated in discovery, did not delay the proceedings, made a good faith monetary settlement offer, and did not delay in preparing for trial. B. DPL'S Good Faith Efforts {¶ 18} We examine each of the Kalain factors to determine whether the trial court abused its discretion by concluding that DPL failed to make a good faith effort to settle. 1. Failure to Cooperate in Discovery {¶ 19} The trial court found that DPL failed to fully cooperate in discovery and withheld documents requested by Evans. The court does not specify which documents it is referring to, but Evans contends that DPL failed to produce an "Alliance Agreement" between it and Enerfab, and a copy of an accident investigation report. Therefore, we assume these are the documents the court found DPL withheld. {¶ 20} The "Alliance Agreement" outlined how both DPL and Enerfab would financially benefit from the completion of Enerfab's work before schedule. According to Evans, he first learned of this Agreement during a deposition on March 19, 2002 and requested a copy of the document from DPL at the deposition and again in a letter dated April 9, 2002. Evans asserts that he never received a response from DPL and obtained the document prior to trial through Enerfab. Evans contends that the accident investigation report, which was prepared by a DPL employee and evaluated the loss severity potential for the accident as "major," was not provided to him until after judgment. {¶ 21} DPL argues the status reports Evans filed on April 12 and May 26, 2002, belie his claim that DPL was not cooperating in discovery proceedings. In both of those reports, dated after the deposition and letter requesting the Agreement, Evans stated that DPL was fully cooperating in discovery. DPL also argues that it provided Evans with a copy of the investigation report and Evans actually used that report at a deposition prior to trial. {¶ 22} Although the Ohio Supreme Court has not defined "full cooperation in discovery," at least one appellate court has determined that "[t]he crux of [a] court's inquiry when examining cooperation in discovery is to assure that the parties were not deprived of information necessary to make a well-informed decision with respect to settlement." Allied Erecting andDismantling Co., Inc. v. City of Youngstown, Mahoning App. No. 03MA179, 2004-Ohio-3665, citing Watson v. Grant Med. Ctr.,123 Ohio Misc.2d 40, 2003-Ohio-2704, 789 N.E.2d 1175, at ¶ 39. Because the goal of R.C. 1343.03(C) is to promote settlement, we agree that this is an appropriate standard to follow. {¶ 23} In addition to the fact that Evans filed status reports indicating that DPL was fully complying with discovery, it is significant Evans never filed any motions to compel discovery. Minor discovery disputes between parties are routine and small disagreements do not demonstrate that a party failed to cooperate in discovery for purposes of awarding prejudgment interest. Cf. Bisler v. Del Vecchio (July 1, 1999), Cuyahoga App. No. 74300 (defendant failed to cooperate in discovery proceedings when plaintiffs were forced to file a motion to compel). Given the longevity and complicated issues involved in this case, there were apparently surprisingly few discovery disputes. {¶ 24} Most importantly, Evans filed a status report with the court three days after he wrote a letter requesting the "Alliance Agreement" from defense counsel but never mentioned that any discovery requests were still outstanding. This report undermines Evans' later claim that DPL failed to fully cooperate in discovery. And, Evans never demonstrated that he could not make a well-informed decision as to settlement due to any alleged delay in his receipt of either of these documents. Evans apparently learned of the existence and contents of the "Alliance Agreement" in March 2002 and received a copy of the document shortly thereafter. Moreover, Evans apparently obtained at least a version of the accident report well before the settlement negotiations between the parties. {¶ 25} Evans also argues that DPL failed to fully cooperate with discovery by providing evasive and inconsistent interrogatory answers regarding the location of the gaskets DPL was required to provide to Enerfab. DPL contends that its answers distinguish between gasket materials, which it possessed at the time of Evans' fall, and pre-made gaskets, which DPL intended to order once Enerfab indicated that it needed the gaskets to complete its work. Having reviewed the interrogatory answers, we see little or no inconsistencies or evasiveness in DPL's answers; they are consistent with the evidence DPL presented at trial regarding the location of the gaskets and gasket materials. {¶ 26} We conclude that the trial court's finding that DPL failed to fully cooperate in discovery is not supported by the evidence and, therefore, is unreasonable. Other than Evans' post-trial claims that DPL failed to provide two documents, which are refuted by the record, there is no evidence that DPL failed to fully cooperate in discovery. 2. Rational Evaluation of Risks and Potential Liability {¶ 27} DPL contends that it rationally evaluated its risks and potential liability and determined that this was a "non-liability" case. DPL's liability hinged upon whether it had "actively participated" in the work Evans performed for Enerfab so that it owed him a duty of care. DPL theorized that it had not "actively participated" in Evans' work because it had not supervised his actions or instructed him or Enerfab as to how to perform the job. DPL also believed that Evans' failure to wear protective fall gear was an intervening cause of his injuries and that the jury would find Evans at least 50% liable for his own injuries. {¶ 28} Although the court did not explicitly find that DPL failed to rationally evaluate this case, it did conclude that DPL treated this as a "nuisance case" and "failed to correctly analyze this case as a non-liability case." The court also noted that DPL lost two summary judgment motions and a motion for directed verdict. {¶ 29} In evaluating its risk of liability, a party must examine both the likelihood of the event occurring, i.e. its probability, and its impact if it should happen, i.e. its magnitude. Wagner v. Marietta Area Health Care, Inc., Washington App. No. 00CA17, 2001-Ohio-2424. Here, DPL presented evidence that it rationally considered both the likelihood of being found liable for Evans' injuries and the potential impact of a liability finding. {¶ 30} Timothy Rice, DPL's in-house counsel, testified that he reviewed Sopkovich v. Ohio Edison Co., 81 Ohio St. 3d 628,1998-Ohio-341, 693 N.E.2d 233, the Ohio Supreme Court decision addressing the duty of care building owners owe to employees of independent contractors, as well as precedent from this Court applying Sopkovich. He also examined the facts of this case and determined that DPL had a strong defense to Evans' allegations. Rice also met with DPL's outside counsel at various times during the pendency of the action to discuss the case. {¶ 31} Paul Cynkar, DPL's claims adjuster, testified that he too believed this was a "non-liability" case. Cynkar attended or reviewed several of the depositions and attended at least part of the trial and observed nothing that changed his mind. Cynkar testified that, although he is not an attorney, he reviewed the case law regarding "active participation" and concluded that DPL did not actively participate in Enerfab's work. Cynkar testified that he believed this was a "non-liability" case because DPL employees did not tell Enerfab employees how to perform their work and Cynkar believed that DPL's provision of the gaskets to Enerfab was a minor issue. {¶ 32} Evans contends that Cynkar overly relied upon his initial investigation in determining that DPL had no liability for the accident and that he ignored newer evidence establishing DPL's liability. However, Cynkar testified that he kept abreast of the case, but no new information affected his analysis. Therefore, it is apparent that Cynkar did consider the new evidence as it was discovered, it just did not change his opinion. {¶ 33} Evans also argues that Rice ignored or was unaware of several facts that were unfavorable to DPL when he determined that DPL was not liable for Evans' injuries. For example, Evans criticizes Rice for not being aware that Danny Farmer testified at deposition that DPL employees and supervisors were involved in the discussions concerning how the job was going to be performed or that Enerfab supervisors were told to notify a DPL supervisor if they needed anything for the job. Most of these facts, however, have no bearing on DPL's liability. As we held in Evans I, Evans produced no evidence that DPL instructed Enerfab about how to perform the job even though it was involved in some discussions concerning how the work was being performed. These actions could not constitute "active participation" underSopkovich and its progeny. Although Rice was unaware of some details of the case, it is unrealistic to expect an in-house counsel to read every deposition and be aware of every aspect of a case. Rice testified that he knew the most significant points and it is clear that DPL's outside counsel, who was intimately familiar with all the facts, also believed DPL was not liable for Evans' injuries under existing case law. {¶ 34} Evans also contends that in deciding it had no liability, DPL misinterpreted Sopkovich and its progeny because it ignored the fact that DPL controlled a critical variable — the gaskets that the Enerfab employees needed to safely complete their work. Therefore, Evans concludes DPL's evaluation of its risk of loss was not rational. {¶ 35} In Evans I, we affirmed the court's denial of DPL's motions for directed verdicts after finding that there was enough evidence for a reasonable jury to conclude that the gaskets were a critical variable and that their absence caused Evans' injuries. The bulk of this evidence was the testimony of Evans' co-workers who indicated that they had never performed the coil installation job the way it was being performed at DPL, i.e., without the gaskets being bolted into place — and that this procedure was unsafe. They also testified that the job was being performed in this manner because DPL did not have the needed gaskets at the plant. Our ratification of the trial court's decision to allow the matter to proceed to the jury should not be misconstrued. It cannot be interpreted to mean anyone who believed DPL was free from liability was acting irrationally. It simply reflects the low threshold a plaintiff must meet to allow a jury to decide the ultimate issue. {¶ 36} Having read the entire trial transcript, we recognize that there was substantial evidence to support DPL's position that the gaskets were not critical to Enerfab's completion of its work and that the job was being performed without the gaskets solely based on the decision of Enerfab supervisors. In fact, the Enerfab supervisor in charge of the job testified that he informed a DPL representative that he did not yet need the gaskets and that the job was being performed without the gaskets in order to use labor resources more efficiently, not because DPL failed to provide the gaskets in a timely manner. And, a DPL representative testified that he could have had the gaskets at the plant within one to two days of ordering them and was merely waiting for the go-ahead from Enerfab. Additionally, even some of Evans' co-workers acknowledged that the job could have been safely performed even without the gaskets in place. Presumably, DPL relied on this testimony when it concluded that the gaskets were not a critical variable and that they were only a minor issue in the case. We cannot say that this conclusion was irrational. {¶ 37} Evans criticizes DPL for interpreting the case law incorrectly and misapplying the case law to the facts in this case. However, the facts of this case do not mirror those from our prior cases, other appellate courts or the Supreme Court of Ohio. We are aware of no case law that is so "on point" with the facts here that, based on its holding, a reasonable person could only conclude DPL was liable. Therefore, DPL's determination that the law would be resolved in its favor was not irrational. While it may have been prudent to err on the side of caution, it was not irrational for DPL to conclude they did not actively participate in the work. {¶ 38} DPL also presented evidence that its interpretation of the case law was consistent with that of some of the attorneys Evans contacted to represent him. After dismissing his initial complaint, Evans had a difficult time retaining local counsel. At least one attorney expressly declined to take the case because he had concerns regarding the likelihood of Evans' recovery and Evans' out-of-state counsel informed him that he couldn't find an Ohio attorney interested in the case because "they do not believe you have a cause of action under Ohio law." Moreover, Evans' attorney told him shortly before trial that the "recommended settlement value [would] not reap a lot of expendable sums." {¶ 39} We agree with DPL that the trial court placed undue weight on the fact that it had denied two summary judgment motions and a motion for a directed verdict. In order to survive these motions, the non-moving party need only produce some evidence to support its claims. During settlement negotiations after the denials of the summary judgment motions, DPL recognized that there was some evidence supporting Evans' claims but believed that the weight of the evidence was heavily in its favor. Given that the supervisors at both Enerfab and DPL agreed that DPL was following Enerfab's instructions regarding the provision of the gaskets, this belief was not irrational. {¶ 40} The court also placed undue weight on the fact that DPL "failed to correctly analyze this case as a non-liability case." Obviously, DPL's conclusions regarding its lack of liability were incorrect. However, if the standard were merely whether a defendant's analysis of liability was correct, prejudgment interest would be awarded whenever a jury finds a defendant liable. Although the jury and the trial court disagreed with DPL's evaluation, that does not mean DPL acted irrationally when making it. See, e.g., Holman v. GrandviewHosp. Med. Ctr. (1987), 37 Ohio App. 3d 151, 159,524 N.E.2d 903, 911-912, and Walworth v. BP Oil Co. (1996),112 Ohio App. 3d 340, 354, 678 N.E.2d 959, 969 ("adverse jury verdict standing alone is not proof of irrational evaluation"). Instead, the court should have considered whether, despite its erroneous conclusion, DPL had an objectively reasonable basis for its belief that it had no liability. We see no evidence that the court made this analysis. {¶ 41} DPL also presented evidence that it weighed the magnitude of a loss at trial in evaluating whether to settle the case. Counsel informed DPL that he believed Evans had "no legitimate claim," but that a settlement offer would "hedge against the risk of a sympathy verdict by a result-oriented jury." He opined that a plaintiff's verdict would not be near $1 million and that Evans' "home run" verdict would be between $400,000 and $650,000. He also noted that the trial court had referred to a $160,000 verdict as a "healthy verdict" in Adams County. {¶ 42} Cynkar testified that he set DPL's "reserve" at $200,000, and MVIC set its "reserve" at $200,000 or $250,000. Cynkar testified that the "reserve" reflects DPL's exposure prior to its insurance company becoming involved. Because DPL had a $200,000 deductible3 and Evans had extensive injuries, DPL's potential exposure was $200,000. {¶ 43} It is apparent that DPL and its counsel underestimated the amount a jury would award in this case. However, their analysis was not totally unreasonable. The record reveals that counsel considered at least one prior jury award as well as DPL's prior cases in Adams County and the facts and circumstances of this case in evaluating the magnitude of a potential loss. And, DPL apparently believed that their liability exposure in this case was so low that, even given the large loss potential, their risk was minimal. {¶ 44} Based on the evidence clearly establishing that DPL rationally evaluated its risk of liability and its potential losses, we conclude that the trial court abused its discretion by finding otherwise. It would be an injustice to penalize a defendant for exercising its right to trial, especially when there is substantial evidence supporting its claim that it is not liable for a plaintiff's injuries. See Avondet v. Blankstein (1997), 118 Ohio App. 3d 357, 370, 692 N.E.2d 1063. Although DPL's analysis of the case was ultimately proven wrong, there is considerable evidence that DPL's analysis was rational. The trial court failed to consider whether DPL had an objectively reasonable belief for its determination that this was a "non-liability" case under the facts and existing case law. The mere fact that DPL's evaluation was ultimately proven wrong does not mean that it was irrational. Therefore, we conclude that the trial court's determination that DPL failed to rationally evaluate its risk of liability is unreasonable. 3. Unnecessarily Delay the Proceedings {¶ 45} The trial court did not find and Evans does not argue that DPL unnecessarily delayed the proceedings. 4. Failed to Make an Offer or Respond to an Offer {¶ 46} Finally, the trial court found that DPL failed to make a good faith effort to settle this case. The court noted that DPL set the "reserve" for this case at $200,000 and its insurer set its "reserve" at $250,000. Yet, DPL never offered more than $75,000 to settle the case. The court also noted that Evans suffered substantial losses and that defense counsel recommended that DPL incrementally increase its settlement offer to $120,000, but DPL failed to follow counsel's recommendation. {¶ 47} However, a party is not required to make or respond to a settlement offer if it has a good faith, objectively reasonable belief that it has no liability. Kalain at syllabus. We have already determined that DPL had such a belief. Therefore, it was not required to engage in settlement discussions. So, even assuming the $75,000 offer was not made in good faith, it is irrelevant. {¶ 48} Because DPL made a good faith effort to settle this case, we need not consider whether Evans failed to make a good faith effort to settle. Accordingly, we sustain DPL's cross-assignment of error and reverse the trial court's award of prejudgment interest in Evans' favor. Appellant's assignment of error is moot. JUDGMENT REVERSED AND CAUSE REMANDED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED and that Appellant recover of Appellee costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Abele, J. McFarland, J. Concur in Judgment and Opinion. 1 Because Evans I contains a full recitation of the facts, we will not repeat the evidence presented here. 2 R.C. 1343.03(C)(1) states: If, upon motion of any party to a civil action that is based on tortious conduct, that has not been settled by agreement of the parties, and in which the court has rendered a judgment, decree, or order for the payment of money, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case, interest on the judgment, decree, or order shall be computed * * *. 3 Rice testified that the $200,000 amount was not actually a deductible. Rather, DPL was self-insured for up to $200,000.

2016-07-06 06:42:26.71684+00

OPINION {¶ 1} Plaintiffs-appellants, Hubert Milton, Sr., et al., appeal the decision of the Clermont County Court of Common Pleas upholding the decision of the Williamsburg Township Board of Zoning Appeals. We affirm the decision of the trial court. {¶ 2} In 1976, appellants became the owners of approximately two acres of real property in Williamsburg Township. The property is zoned A-1. In 1976, appellants divided the property into five parcels, known as lots 101, 161, 162, 163, and 164. Hubert Milton, Sr. and Barbara Milton own Lot 101. Lots 161, 162, 163, and 164 are all approximately .57 acres and are owned by Hubert Milton, Sr. and Hubert Milton, Jr. At the time of their creation, all lots conformed to the requirements for development as single-family lots. {¶ 3} A residential house was constructed on lot 162 in 1978. However, appellants never applied for building permits or constructed residences on lots 101, 161, 163, and 164. In 1990, appellants had the properties surveyed again. Appellants intended to combine lot 162 with half of lot 101. Appellants then wanted to combine the other half of lot 101 with lot 164. However, appellants failed to file the deeds. Hubert Milton, Jr. testified the failure to file was "an error on my part." {¶ 4} In 1994, Williamsburg Township amended its zoning resolution to require a minimum lot size of 1.5 acres for lots to be used for single-family residential purposes. Appellants applied for a building permit in 2000 for lot 164. However, the Williamsburg Township Zoning Inspector would not issue the building permit. {¶ 5} As a result of the 1994 zoning resolution, the .57 acre lots, 161, 163, and 164, could no longer be used individually for single-family residential purposes, and the Williamsburg Township Zoning Inspector would not issue zoning certificates for the development of the lots. But, the Williamsburg Township Zoning Inspector stated lots 161, 163, and 164 have the same owners and could be combined to form a single, conforming lot. Furthermore, appellants are permitted to build on lot 101 since it is not in common ownership with any contiguous lots. {¶ 6} In December 2000, appellants filed an application for a variance with the Board of Zoning Appeals of Williamsburg Township ("Board"). On January 15, 2001, the Board heard the application and denied the variance. Appellants filed a complaint for declaratory judgment and an administrative appeal with the Clermont County Court of Common Pleas. The trial court entered judgment in favor of Williamsburg Township and dismissed appellants' case. Appellants appeal the decision arguing three assignments of error. {¶ 7} Assignment of Error No. 1: {¶ 8} "The Trial Court erred in finding Section 912 and 914 of the Williamsburg Township Zoning Resolution legal and enforceable." {¶ 9} Appellants argue that "a Township's Authority to enact zoning resolutions is limited to that authority granted to the Township by the General Assembly. Zoning regulations which exceed that authority are illegal and unenforceable." Appellants maintain that nothing in Chapter 519 of the Revised Code requires them to combine their nonconforming lots into a single lot. {¶ 10} The police power authority of townships to enact zoning ordinances, unlike municipalities, is not inherent, nor does it derive from a constitutional provision. Torok v. Jones (1983), 5 Ohio St. 3d 31, 32. The zoning power of a township is a police power delegated to the township by the General Assembly.Yorkavitz v. Columbia Twp. Bd. of Trustees (1957),166 Ohio St. 349, paragraph one of the syllabus. As such, "[t]he zoning authority possessed by townships in the state of Ohio is limited to that which is specifically conferred by the General Assembly."Bd. of Bainbridge Twp. Trustees v. Funtime, Inc. (1990),55 Ohio St. 3d 106, paragraph one of the syllabus. Accordingly, to the extent that a zoning regulation or rule violates an explicit statutory command of the General Assembly, it is preempted and is therefore invalid and unenforceable. Newbury Twp. Bd. ofTrustees v. Lomak Petroleum (1992), 62 Ohio St. 3d 387, paragraph one of the syllabus. See, also, Funtime at paragraph two of the syllabus; Crist v. True (1973), 39 Ohio App. 2d 11, 12; Cole v.Bd. of Zoning Appeals for Marion Township (1973),39 Ohio App. 2d 177, 181. {¶ 11} R.C. Chapter 519 grants townships limited zoning authority. R.C. 519.19 specifically outlines the powers of a township board of zoning appeals with regard to the nonconforming use of land, and provides: "[t]he lawful use of any dwelling, building, or structure and of any land or premises, as existing and lawful at the time of enactment of a zoning resolution or amendment thereto, may be continued, although such use does not conform with such resolution or amendment, but if any such nonconforming use is voluntarily discontinued for two years or more, any future use of such land shall be in conformity with sections 519.02 to 519.25, inclusive, of the Revised Code." {¶ 12} A dwelling was constructed on lot 162 in 1978. Since the dwelling was existing and lawful when Williamsburg Township amended its zoning resolution to require 1.5 acres for single-family residential lots in 1994, the nonconforming use may be continued. However, lots 161, 163, and 164 have been vacant since appellants purchased them in 1976. There is no existing nonconforming use to continue on lots 161, 163, and 164. {¶ 13} A landowner has not been deprived of a pre-existing residential use of a lot where there has been no such use prior to enactment of the prohibition. Northhampton Building Co. v.Bd. of Zoning Appeals of Sharon Township (1996),109 Ohio App. 3d 193, 201. Since appellants voluntarily chose not to use the nonconforming lots for two years or more after the enactment of a zoning resolution, pursuant to R.C. 519.19, any future use of such land shall be in conformity with sections R.C. 519.02 to519.25, inclusive. Consequently, the first assignment of error is overruled. {¶ 14} Assignment of Error No. 2: {¶ 15} "The Trial Court erred in finding that the evidence of the economic viability of the lots in their current state is speculative at best." {¶ 16} Appellants argue that the "opinions of a property owner and two expert witnesses that the lots have zero economic value as currently zoned establishes an unconstitutional taking beyond fair debate." The Fifth Amendment to the United States Constitution provides that governmental takings of private property for a public purpose are prohibited unless just compensation is paid. A "taking" may be a physical intrusion onto land, or it may be accomplished through a regulation that prohibits a use of land. Tahoe-Sierra Preservation Council, Inc.v. Tahoe Regional Planning Agency (2002), ___ U.S. ___,122 S. Ct. 1465. {¶ 17} In order to constitute a "regulatory" taking, the measure involved must be permanent in nature and of such a character and effect that the owner is deprived of all or substantially all economic use of his land that is feasible. Id. However, "[a] landowner does not have a right to have his land zoned for its most advantageous economic use; the mere fact that the property would be substantially more valuable if used an alternate way is, in itself, insufficient to invalidate an existing zoning ordinance." Smythe v. Butler Township (1993),85 Ohio App. 3d 616, 621. {¶ 18} The property owner must demonstrate that the zoning restrictions render the property effectively valueless, without any economically beneficial use, such that the landowner should be compensated. Ketchel v. Bainbridge Twp. (1990),52 Ohio St. 3d 239, 245. "[S]omething more than loss of market value or loss of comfortable enjoyment of the property is needed to constitute a taking." State ex rel. BSW Dev. Group v. Dayton (1998), 83 Ohio St. 3d 338, 345, quoting State ex rel. Pitz v.Columbus (1988), 56 Ohio App. 3d 41. {¶ 19} The lots are zoned A-1 which allows buildings or premises for the following purposes: agriculture, churches, public elementary and high schools, public and private forests, cemeteries, golf courses, and hospitals. Hubert Milton, Jr. testified that he researched agriculture use and building a church on the property, and neither was economically feasible. {¶ 20} However, appellants concede that they may combine lots 161, 163, and 164 and make a profit by building a house on the combined lot. Additionally, Russell Canter, a real estate appraiser and broker, testified that such a lot would have a fair market value of $18,000. However, Hubert Milton, Jr. testified that while it would be economically feasible to build a house and make a profit on the combined lots, "it just wouldn't be as desirable" as building on the individual lots. Appellants believe building on the individual lots will "maximize" the value of the properties. {¶ 21} "Takings" jurisprudence does not favor claims that some more remunerative use is denied. Rather, the question is whether some economically feasible use remains. Feasibility refers to the reasonable availability of the use. Its economic character is its capacity to produce a material return. Both exist here, therefore, no "taking" has occurred for which compensation is required by the Fifth Amendment as a result of the Board's decision. The second assignment of error is overruled. {¶ 22} Assignment of Error No. 3: {¶ 23} "The Trial Court erred in finding that sections 810, 912 and 914 of the Williamsburg Township Zoning Resolution substantially advances a legitimate governmental interest." {¶ 24} Appellant argues that there "is no legitimate governmental purpose advanced by prohibiting the owner of non-conforming lots of record from using those lots in accordance with their non-conforming status." {¶ 25} A zoning regulation is presumed to be constitutional unless determined by a court to be clearly arbitrary, unreasonable and without substantial relation to the public health, safety, morals, or general welfare of the community.Goldberg Cos., Inc. v. Council of the City of Richmond Heights,81 Ohio St. 3d 207, 214, 1998-Ohio-456. A reviewing court must be reluctant to substitute its judgment for that of the body responsible for applying zoning ordinances. Ketchel v.Bainbridge Twp. (1990), 52 Ohio St. 3d 239, 246. {¶ 26} Timothy Hershner, an urban planner, testified that permitting a lot size smaller than 1.5 acres would increase population density and require greater costs and expense to the Township to provide public services from police, fire and emergency services, road maintenance, snow removal, water and sewer. Furthermore, Hershner testified that smaller lot sizes would compromise the character and nature of the Township and result in lower land values. Many of these concerns, including increased traffic congestion, maintenance of the single-family nature of a neighborhood and increased population density have been found to be legitimate governmental concerns justifying single-family classification. Leslie v. Toledo (1981),66 Ohio St. 2d 488, 491. See, also, Singer v. Troy (1990),67 Ohio App. 3d 507, 514. {¶ 27} Under these circumstances, the common pleas court could properly conclude that the zoning resolution served a legitimate public interest as a matter of law. The third assignment of error is overruled. {¶ 28} Judgment affirmed. Walsh and Valen, JJ., concur.

2016-07-06 06:42:26.744065+00

DECISION AND JUDGMENT ENTRY {¶ 1} Appellant, Darek Lathan, appeals from a judgment of sentence entered against him by the Lucas County Court of Common Pleas. For the reasons that follow, we reverse the judgment of the trial court. *Page 2 {¶ 2} Lathan was indicted on April 10, 2000, on one count of aggravated robbery with a firearm specification and one count of kidnapping with a gun specification. He was tried and convicted on both charges. On appeal, this court reversed those convictions, and remanded the case for a new trial. At the second trial, Lathan was again convicted of aggravated robbery and kidnapping, but not of the gun specifications. The trial court imposed two concurrent six-year prison terms. {¶ 3} On appeal, Lathan's appellate counsel filed a brief pursuant toAnders v. California (1967), 386 U.S. 738, stating that there were no arguable issues on appeal and asking this court for permission to withdraw. The state cross-appealed, arguing that the trial court improperly relied on State v. Williams (Nov. 30, 2000), 6th Dist. Nos. L-00-1027, L-00-1028, when imposing sentence. This court granted counsel's motion to withdraw and ruled that the trial court should not have relied on State v. Williams, supra, in sentencing Lathan. However, this court affirmed the sentences because they were within the statutory range for Lathan's convictions. {¶ 4} Lathan filed a timely motion to reconsider pursuant to App.R. 26(A). This court granted the motion. This court then reversed Lathan's sentence in light of State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856. On remand, the trial court imposed the same prison sentence, but failed to notify him at the sentencing hearing that he would be subject to a period of post-release control. Appellant is currently in prison, serving his sentence in this case. *Page 3 {¶ 5} Appellant, timely appealed the judgment of sentence, raising the following assignments of error: {¶ 6} I. "THE TRIAL COURT ERRED BY IMPOSING NON-MINIMUM PRISON SENTENCES." {¶ 7} II. "THE TRIAL COURT ERRED BY IMPOSING POST-RELEASE CONTROL." {¶ 8} Appellant argues in his first assignment of error that the imposition of non-minimum prison sentences under the authority ofFoster, supra, was contrary to law, not because the trial court failed to follow the mandate of the Ohio Supreme Court, but because the remedy prescribed in Foster violates the Ex Post Facto and Due Process Clauses of the Unites States Constitution. {¶ 9} As an intermediate appellate court, we are bound by the Ohio Supreme Court's decision in Foster, and cannot overrule it or declare it unconstitutional. State v. Thrasher, 6th Dist. No. WD-06-047,2007-Ohio-2838, ¶ 7. In addition, this court has previously considered the ex post facto and due process arguments, and has rejected them each time. Id., ¶ 8. Accordingly, appellant's first assignment of error is found not well-taken. {¶ 10} Appellant argues in his second assignment of error that the trial court erred by imposing post-release control. As grounds for this assignment of error, appellant argues that post-release control violates the separation of powers doctrine because amendments to the Revised Code that were enacted by Am. Sub. H.B. 137 permit the *Page 4 executive branch of government to impose the sanction without a court order. See, e.g., R.C. 2929.14(F)(1); R.C. 2929.19(B)(3)(c); R.C.2967.28(B). {¶ 11} The amendments in question specifically provide that, for any sentence imposed on or after July 11, 2006, a trial court's failure to inform an offender of mandatory post-release control does not negate or otherwise affect the imposition of that sanction. See id. Lathan was resentenced on June 30, 2006. Because he was sentenced before July 11, 2006, the amendments that he refers to do not apply to him and, as a result, he has no standing to attack them. See State v. Bond, 1st Dist. No. C-060611, 2007-Ohio-4194, ¶ 7. {¶ 12} Our analysis does not end here, however. We note that the trial court erred when it failed to notify Lathan at the sentencing hearing that he would be subject to a period of post-release control. See R.C.2929.19(B)(3)(c) (providing that "if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall * * * [n]otify the offender that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the first degree * * *.) R.C. 2929.191(A)(1) establishes a remedy for such an error where, as here, the offender was sentenced before July 11, 2006, and has not yet been released from prison, and provides that the court may hold a new hearing to "prepare and issue a correction to the judgment of conviction that includes in the judgment of conviction the statement that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison." Id.; see, also, *Page 5 State v. Cruzado, 111 Ohio St. 3d 353, 2006-Ohio-5795, ¶ 29. The corrective hearing must be a full de novo resentencing hearing, rather than one in which the trial court merely provides the offender with notice of post-release control and summarily imposes the original sentence. State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250; see, also,State v. Brimer, 11th Dist. No. 2007-A-0012, 2007-Ohio-4767. For the foregoing reasons, appellant's second assignment of error is well-taken. {¶ 13} The judgment of the Lucas County Court of Common Pleas is reversed, and this case is remanded for resentencing consistent with this decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County. 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. *Page 6 Arlene Singer, J., William J. Skow, J., Thomas J. Osowik, J., CONCUR. *Page 1

2016-07-06 06:42:26.775237+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, Darrell Richardson, appeals the judgment of the Hamilton County Court of Common Pleas convicting him of two counts each of aggravated robbery and robbery, with firearm specifications. He was convicted of the offenses and specifications after a jury trial. For the following reasons, we affirm the judgment of the trial court. In his first assignment of error, Richardson argues that the convictions were based upon insufficient evidence and were contrary to the manifest weight of the evidence. In the review of the sufficiency of the evidence to support a conviction, the relevant inquiry for the appellate court "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 beyond a reasonable doubt."1 To reverse a judgment as against the manifest weight of the evidence, a reviewing court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and conclude that, in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage of justice.2 R.C. 2911.01, the aggravated-robbery statute, provides the following: No person, in attempting or committing a theft offense * * * shall do any of the following: Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate the offender possesses it, or use it * * *. Similarly, R.C. 2911.02(A)(1), the robbery statute, provides that no person, while committing or attempting a theft offense, shall "[h]ave a deadly weapon on or about the offender's person or under the offender's control * * *." In the case at bar, the convictions were in accordance with the evidence. Shante Haymore testified that a person whom she later identified as Richardson held her at gunpoint while an unidentified person held her friend, Tobi Kirchenwitz, at gunpoint in the parking lot of a delicatessen. Haymore testified that Richardson demanded money and took her wallet, containing her money and other property. Kirchenwitz testified that Richardson's companion also demanded money and took approximately $4.00 from her. She further testified that she had the opportunity to observe the person who accosted Haymore, and she identified that person as Richardson. Although Richardson emphasizes certain alleged weaknesses in the state's case, such as the lack of physical evidence and certain inconsistencies in the identification testimony, we cannot say that the jury clearly lost its way in finding that Richardson had participated in the robberies. Richardson also contends that his convictions for the offenses relating to Kirchenwitz were improper, because the unidentified companion was the perpetrator of those offenses. We find no merit in this argument. The evidence indicated that Richardson and his companion had committed the offenses as part of a common plan and that Richardson's actions in holding Haymore at gunpoint had facilitated the robbery of Kirchenwitz. Thus, Richardson was properly convicted as an accomplice. Next, Richardson argues that he was improperly convicted of the firearm specifications, because the state failed to present evidence of operability. We disagree. To establish a firearm specification, the state is required to prove that the weapon was capable of firing a projectile and was operable or could readily have been rendered operable at the time of the offense.3 But R.C. 2923.11(B)(2) provides that, in determining whether a weapon is capable of expelling a projectile, "the trier of fact may rely on circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm." Further, we have repeatedly held that a victim's belief that the weapon was a gun, together with the intent on the part of the accused to create and use that belief for his own criminal purposes, is sufficient to prove a firearm specification.4 In the instant case, Haymore testified that Richardson brandished a gun while demanding money. Haymore was able to give a fairly detailed description of the gun and testified that she was afraid of being shot. Similarly, Kirchenwitz testified that the unidentified assailant brandished a gun while demanding money and that she believed the gun to be operable. Under these circumstances, the convictions for the firearm specifications were proper. In his second and final assignment of error, Richardson argues that he was denied a fair trial as a result of the prosecutor's use of peremptory challenges to excuse two African-American jurors. We find no merit in this argument. To establish a prima facie case of racial discrimination in the selection of a jury, the defendant must establish that members of a cognizable racial group were peremptorily challenged and that the facts and any other relevant circumstances raise an inference that the prosecutor used the peremptory challenges to exclude jurors on account of their race.5 If the defendant makes a prima facie case of discrimination, the state must then provide a race-neutral explanation for its use of the challenges.6 A trial court's finding of no discriminatory intent will not be disturbed unless it is clearly erroneous.7 In the case at bar, we assume, without deciding, that Richardson established a prima facie case of discrimination. The state, though, explained its use of the peremptory challenges by stating that the challenged jurors were unresponsive to questioning by the prosecuting attorney and demonstrated limited life experiences. These were valid, race-neutral reasons for excusing the prospective jurors, and we find no clear error in the trial court's finding of no discriminatory intent. The second assignment of error is accordingly 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 Sundermann, JJ. 1 State v. Waddy (1992), 63 Ohio St. 3d 424, 430, 588 N.E.2d 819,825. 2 State v. Thompkins (1997), 78 Ohio St. 3d 380, 386, 678 N.E.2d 541,546. 3 State v. Roberts (May 3, 1995), Hamilton App. No. C-940509, unreported. 4 See, e.g., State v. James (Dec. 22, 1994), Hamilton App. No. C-930618, unreported. 5 See Batson v. Kentucky (1980), 476 U.S. 79, 96, 106 S. Ct. 1712,1723. 6 Id.; State v. Hill (1995), 73 Ohio St. 3d 433, 445, 653 N.E.2d 271,282. 7 State v. Hernandez (1992), 63 Ohio St. 3d 577, 583, 589 N.E.2d 1310,1314.

2016-07-06 06:42:26.899797+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant-appellant John Riley (a.k.a. Cordale Garrett) appeals from his convictions for attempted murder, felonious assault and possession of criminal tools, to wit: a gun. {¶ 2} Riley presents two assignments of error in which he argues his convictions are not supported by either sufficient evidence or the manifest weight of the evidence. Following a review of the record, this court cannot agree with his arguments. Consequently, Riley's convictions are affirmed. {¶ 3} Riley's convictions result from an incident that occurred on the night of November 19, 2005. According to the victim, Carlton Gilmore, at approximately 8:00 *Page 2 p.m. he was returning to his home located on the corner of East 68th Street and Rogers Avenue. As Gilmore drove, he noticed a silver-colored Lincoln Town Car; the vehicle drew his attention because it was parked on the wrong side of the oneway street that gave access to his house. {¶ 4} Gilmore continued past the Lincoln and parked his car on Rogers Avenue at the side of his home. He kept watch on the other vehicle, however. Therefore, Gilmore noticed that at the same time he emerged from his own car, two men got out of the Lincoln. The driver of the Lincoln pulled forward, passing him, but then stopped again. Meanwhile, the two men pulled masks over their heads, separated so that each was on a different side of the street, and began walking toward Gilmore's location. {¶ 5} Gilmore reentered his car in order to evade what he thought was developing into a dangerous situation. Since he believed the Lincoln would block his car if he took that direction, he backed out and drove the wrong way on the street he had just used, toward the two men on foot. At that point, both men "just started shooting" at him. {¶ 6} Gilmore heard several gunshots, some of which struck his car. He also felt a burning sensation in his left hand, but kept driving. Subsequently, he sought medical treatment; the treating physicians found a bullet fragment in Gilmore's left hand. Gilmore suffered permanent damage to his nerves and bones. *Page 3 {¶ 7} One of the residents in Gilmore's neighborhood called the Cleveland police upon hearing the gunfire. A "priority-one" radio dispatch of "shots fired" at East 65th Street and Rogers Avenue immediately went out to patrol units in the area. Officers William Conn and Marvin Young were in their zone car at East 65th Street and Union Avenue, very near the location, so they responded. {¶ 8} As Young drove the patrol car, the officers received a second dispatch which provided a description of the vehicle seen fleeing the scene. Moments later, they observed a Lincoln Town Car of the same description coming toward them on East 65th Street. Young made a u-turn and followed the vehicle with lights and sirens activated. Conn used the police radio to keep other units informed of their actions. {¶ 9} The Lincoln Town Car was traveling at a high rate of speed. Between the intersections of Broadway and Hinde Avenue, Young and Conn both noticed that one of the occupants threw an item from a passenger-side window. The vehicle's driver thereafter attempted to elude the pursuit by altering his course; nevertheless, the effort proved unsuccessful. The Lincoln Town Car eventually slowed at East 71st Street and Aetna Avenue. Three men "bailed out." {¶ 10} While the Lincoln Town Car rolled into a fence along Broadway Avenue and came to a halt, another police unit arrived at the scene. Officers Patrick Andrejack and his partner Daniel David thus joined Young and Conn in foot pursuit *Page 4 of the fleeing suspects. Young went after the man who had exited from the rear passenger's side of the vehicle. {¶ 11} Andrejack and David followed a man who was running across Aetna Avenue toward a hospital building. The man, while making an evasive maneuver, accidentally came up behind the officers, who arrested him. The man later was identified as Riley. During David's pat-down search of Riley, he found a black face mask in Riley's sweatshirt pocket. {¶ 12} Young apprehended the other suspect, who later was identified as William Houston. Conn had been unable to catch the third man, so he returned to the Lincoln Town Car. Conn looked inside to see a .357 magnum revolver on the rear seat. Later forensic analysis of a bullet extracted from Gilmore's dashboard proved it had been fired from this weapon. {¶ 13} The officers also found a black face mask on the rear compartment's floor. Moreover, the item that earlier had been thrown from the vehicle was located on East 65th Street between Hinde and Union Avenues; it was a nine millimeter semiautomatic handgun. {¶ 14} Riley and Houston subsequently were indicted together on four counts, viz., one count of attempted murder, two counts of felonious assault, and one count of possession of criminal tools, to wit: a gun. The first three counts additionally carried both one-year and three-year firearm specifications. *Page 5 {¶ 15} Riley executed a written waiver of his right to a jury trial. After hearing the testimony and considering the evidence, the trial court found him guilty on all counts. Riley ultimately received a sentence that totaled nine years. {¶ 16} In this appeal, Riley presents the following two assignments of error for review. "I. The trial court erred in denying Appellant's motion for acquittal as to the charge [sic] when the state failed to present sufficient evidence to sustain a conviction [sic]. "II. Appellant's conviction [sic] is against the manifest weight of the evidence." {¶ 17} Despite his use of the singular in his assignments of error, Riley actually challenges all of his convictions. He argues they are not supported by sufficient evidence, so the trial court should have granted his motions for acquittal; he further argues that his convictions are not supported by the manifest weight of the evidence. This court disagrees. {¶ 18} A defendant's motions for acquittal should be denied if the evidence is such that reasonable minds could reach different conclusions as to whether each material element of the crime has been proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St. 3d 421, 1997-Ohio-372;State v. Jenks (1991), 61 Ohio St. 3d 259; State v. Bridgeman (1978),55 Ohio St. 2d 261. The trial court is required to *Page 6 view the evidence in a light most favorable to the state. State v.Martin (1983), 20 Ohio App. 3d 172. Thus, circumstantial evidence alone may be used to support a conviction. State v. Jenks (1991),61 Ohio St. 3d 259. {¶ 19} With regard to an appellate court's function in reviewing the weight of the evidence, this court is required to consider the entire record and determine whether in resolving any conflicts in the evidence, the fact-finder "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Id. at 175. This court must remain mindful, however, that the weight of the evidence and the credibility of the witnesses are matters primarily for the fact-finder to consider. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. {¶ 20} In this case, when viewed in a light most favorable to the prosecution, the evidence demonstrated that Gilmore saw two men exit the Lincoln Town Car; both donned face masks before taking positions on each side of the street. Gilmore tried to flee the area of East 68th Street and Rogers Avenue, prompting both men to "just start" shooting at him. At least seven shots were fired into Gilmore's car; one of them lodged in his dashboard, and one struck him in the left hand. Gilmore identified a photograph of the Lincoln Town Car as the vehicle from which his assailants emerged. *Page 7 {¶ 21} Within moments of the shooting, police officers saw that vehicle traveling on East 65th Street near Rogers Avenue. The driver failed to stop for their lights and sirens; instead, he attempted to get away from them. During the police pursuit, one of the rear-seat passengers threw a gun out of the window. The officers never lost sight of the vehicle. {¶ 22} When the Lincoln Town Car finally slowed, its occupants "bailed out" and ran from it. Two were captured, viz., Riley and his co-defendant Houston. Riley carried a black face mask in his pocket. The gun that fired the shot that lodged in Gilmore's dashboard was found at the place in the Lincoln Town Car where Riley had been seated. Another black face mask lay on the rear-seat floor. {¶ 23} From this evidence, reasonable minds could conclude Riley was one of the two men who fired shots at Gilmore's car, that both men had the purpose to kill him, and that Riley and his accomplice did, in fact, inflict serious physical harm on Gilmore by means of a deadly weapon. The trial court, therefore, did not err in denying Riley's motions for acquittal. State v. Garner, Franklin App. No. 07AP-429, 2007-Ohio-5865. {¶ 24} Moreover, the witnesses provided a coherent and essentially consistent version of events which the trial court was within its prerogative to believe. This court cannot determine the trial court lost its way in finding Riley guilty of the charges *Page 8 of attempted murder, felonious assault with a gun, and possession of criminal tools. Id. {¶ 25} For the foregoing reasons, Riley's two assignments of error are overruled. Affirmed. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. 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. SEAN C. GALLAGHER, P.J., and ANTHONY O. CALABRESE, JR., J. CONCUR *Page 1

2016-07-06 06:42:27.005171+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from the judgment of the Lawrence County Municipal Court which held that Defendant-Appellee Jerry Bell was not liable for the damages resulting from a motor-vehicle accident with Plaintiff-Appellant Charlotte R. Queen, who is insured by Plaintiff-Appellant Erie Insurance Co. {¶ 2} Appellants argue, inter alia, that the lower court erroneously considered Bell's answer because it did not comply with Civ.R. 5(A). We agree and reverse the judgment of the trial court. I. The Proceedings Below {¶ 3} In 1997, Defendant-Appellee Jerry Bell and Plaintiff-Appellant Charlotte R. Queen were involved in a motor-vehicle collision on State Route 777 in Lawrence County, Ohio. The accident occurred when Bell attempted to pass Queen in a no-pass zone while she was turning left into a private driveway to deliver mail while on her United States Postal Service route. {¶ 4} In 1999, precisely two years after the accident, Plaintiff-Appellant Erie Insurance Co. (Erie), who insured Queen, filed a subrogation complaint in the Lawrence County Municipal Court alleging that Bell negligently operated his motor vehicle and was liable for the damages caused to Queen. {¶ 5} In May 2000, Erie voluntarily dismissed this complaint. {¶ 6} In September 2000, Erie re-filed its complaint, making the same claims it made in its first complaint. {¶ 7} Shortly thereafter, Bell filed in the trial court what the trial court construed to be an answer. This document did not contain a certificate of service. {¶ 8} Subsequently, appellants filed a motion for default judgment in which they argued that Bell's answer did not comport with Civ.R. 5(A). The trial court denied this motion. {¶ 9} In February 2001, the case was tried before the trial court without a jury. At the trial, various witnesses testified on behalf of Erie and Queen. Only Bell testified on his behalf. {¶ 10} In March 2001, the trial court issued its decision and judgment entry, finding in favor of Bell. II. The Appeal {¶ 11} Subsequently, Erie and Queen timely filed an appeal with this Court, assigning nine errors for our review. {¶ 12} First Assignment of Error: "The trial court erred as a matter of law in applying a lower standard to defendant/appellee during the course of the proceedings than it would have required from counsel." {¶ 13} Second Assignment of Error: "The trial court erred by accepting defendant/appellee's answer as it did not comply with Civ.R. 5(a) and Civ.R. 8(b)." {¶ 14} Third Assignment of Error: "The trial court erred by denying plaintiffs/appellants' motion for a default judgment." {¶ 15} Fourth Assignment of Error: "The trial court abused its discretion by not granting plaintiffs/appellants' motion for leave to file a motion for summary judgment." {¶ 16} Fifth Assignment of Error: "The trial court's finding that plaintiff/appellant, Charlotte Queen, made an improper [left-hand] turn was against the manifest weight of the evidence." {¶ 17} Sixth Assignment of Error: "The trial court erred as a matter of law in placing the burden of disproving comparitive [sic] fault on plaintiffs/appellants, when instead, the burden of proving this affirmative defense fell upon defendant/appellee." {¶ 18} Seventh Assignment of Error: "The trial court erred by finding that plaintiffs/appellants [sic] cause of action was barred by comparative fault when defendant/appellee never pled comparative fault nor offered any evidence in support of this affirmative defense." {¶ 19} Eighth Assignment of Error: "The trial court erred in finding that plaintiffs/appellants' cause of action was barred by the statute of limitations when this affirmative defense was never pled and no evidence was offered in support of it." {¶ 20} Ninth Assignment of Error2: "The trial court erred in finding that plaintiffs/appellants' cause of action was barred by the statute of limitations when the Ohio savings statute saved plaintiffs/appellants' [re-filed] complaint." {¶ 21} The threshold issue we must resolve is whether, "Because [Bell's] Answer did not comply with Civ.R. 5(A)[,] * * * the [trial court] erred by considering it." This argument is set forth in appellants' Second and Third Assignments of Error in the context of their argument that the trial court erroneously overruled their motion for default judgment. {¶ 22} Civ.R. 5(A) requires that "every pleading subsequent to the original complaint * * * shall be served upon each of the parties." {¶ 23} Civ.R. 5(D) goes on to state that "Papers filed with the court shall not be considered until proof of service is endorsed thereon or separately filed." {¶ 24} Here, Bell's answer does not contain a certificate of service. In fact, there is no indication on the document that service was attempted. Further, the record reveals that proof of service was not separately filed. {¶ 25} Thus, because no certificate of service was ever filed with the trial court, it could not have properly considered Bell's answer, "[i]t [could] not conduct a trial on the merits, nor [could] it rule on motions for summary judgment." Enyart v. Columbus Metro. Area CommunityAction Org. (Sept. 6, 1994), Franklin App. No. 93APE12-1658; see Civ.R. 5(D). {¶ 26} "The primary purpose of the service requirements of [Civ.R. 5(A)] is to notify the plaintiff of the defenses raised by the defendant so that the plaintiff can make an appropriate response. * * *. Thus, if the defendant files her answer but that pleading does not contain an endorsement of proof of service, the court will not consider the paper filed. * * *. Here, [the defendant's] answer contains no endorsement of proof of service. * * *. For this reason, the trial court did not abuse its discretion in striking [the defendant's] answer." (Citations omitted.) Amiri v. Thropp (1992), 80 Ohio App. 3d 44, 50,608 N.E.2d 824, 828; see, generally, Staff Note to Civ.R. 5(D); cf. Merosv. Rorapaugh (Nov. 22, 2000), Cuyahoga App. No. 77611 (holding that Civ.R. 5(D) precludes the trial court from considering papers without proof of service, not ones where service was merely not perfected). {¶ 27} We are mindful that Bell is a pro se litigant. We are cognizant of the long-standing preference in Ohio courts to afford reasonable leeway to pro se parties. See, generally, State ex rel.Simpson v. Hamilton County Court of Common Pleas (May 17, 1995), Hamilton App. No. C-940505. {¶ 28} Nevertheless, pro se litigants are "presumed to have knowledge of the law and of correct legal procedure and [are to be] held to the same standard as all other litigants." Kilroy v. B.H. LakeshoreCo. (1996), 111 Ohio App. 3d 357, 363, 676 N.E.2d 171, 174; see, generally, State v. Wayt (Mar. 20, 1991), Tuscarawas App. No. 90AP070045 ("While insuring that pro se [litigants] are afforded the same protections and rights prescribed in the * * * rules, we likewise hold them to the obligations contained therein."). {¶ 29} Accordingly, we find that the trial court erred in proceeding to trial with this case. {¶ 30} Thus, we sustain appellants' Second and Third Assignments of Error. Consequently, we find the remaining assignments of error to be moot because the trial court erred by permitting the case to proceed forward. See James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App. 3d 788,791, 600 N.E.2d 736, 738, citing South Pacific Terminal Co. v. InterstateCommerce Comm. (1910), 219 U.S. 498, 514, 31 S. Ct. 279, 283 ("It is not the duty of a court to decide purely academic or abstract questions."). III. Conclusion {¶ 31} For the foregoing reasons, we REVERSE the judgment of the Lawrence County Municipal Court. The cause is remanded for further proceedings not inconsistent with this opinion. JUDGMENT REVERSED AND REMANDED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED and the cause be remanded to the trial court for further proceedings consistent with this opinion, costs herein taxed to appellee. This Court finds that there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the LAWRENCE COUNTY MUNICIPAL COURT to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this Entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Abele, P.J.: Concurs in Judgment Only with Opinion. Kline, J.: Dissents. 2 We note that appellants numbered this assignment of error as number ten, when a number nine does not appear in their brief. Accordingly, we will refer to this as the Ninth Assignment of Error.

2016-07-06 06:42:27.077677+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant-appellant, Christopher Morris, appeals the trial court's judgment sentencing him to 68 months (5 years, eight months) on four counts of pandering sexually-oriented matter involving a minor. We affirm. {¶ 2} Morris was indicted on 11 charges of pandering sexually-oriented matter involving a minor, felonies of the fourth degree, and subsequently pled guilty to four of the charges; the remaining charges were dismissed. Morris was sentenced to 17 months on each of the four counts and five years of post release control; the sentences were ordered to be served consecutively. In his sole assignment of error, Morris challenges his sentence. {¶ 3} An appellate court may not disturb an imposed sentence unless it finds by clear and convincing evidence that the sentence is not supported by the record or is "otherwise contrary to law."1 R.C. 2953.08(G)(2); State v. Moore, 8th Dist, *Page 4 No. 89779, 2008-Ohio-2365, ¶ 24; State v. Donahue, 8th Dist. No. 89111,2007-Ohio-6825, ¶ 13. Clear and convincing evidence is "that measure or degree of proof which is more than a mere `preponderance of the evidence,' but not to the extent of such certainty as is required `beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford (1954),161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus. We must now determine whether the record demonstrates clear and convincing evidence that Morris's consecutive sentences were contrary to law. {¶ 4} Morris first challenges the fact that the trial court sentenced him to prison rather than to community control. {¶ 5} In Foster, supra, the Ohio Supreme Court made the following observations with regard to sentencing for fourth and fifth degree felonies: {¶ 6} "Community control is the default sentence for felonies of the fourth and fifth degree, except for those identified as mandatory prison offenses. R.C. 2929.13(B)(2)(b) states that `if the court does not make a finding described in *Page 5 division (B)(1)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of this section and if the court, after considering the factors set forth in section 2929.12 of the Revised Code, finds that a community control sanction or combination of community control sanctions is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code, the court shall impose a community control sanction or combination of community control sanctions upon the offender. * * *' If the appropriate findings are made, the court has no discretion and must impose a prison term; however, the statute does not prevent a court from imposing a prison term without these findings. There is no presumption in favor of community control, in other words. If no findings are made under R.C. 2929.13(B)(1)(a) through (i), the court must find that a community control sanction meets the principles of sentencing under R.C. 2929.11 before it must impose community control. Thus, a judge who does not make one of the (B)(1) findings and does not find that community control is a sufficient sanction could still impose a prison term." Id. at ¶ 68. {¶ 7} Thus, the Foster court held that when a judge does not make the statutory findings and does not find that community control is a sufficient sanction, they can still impose a prison term. {¶ 8} In this case, the court did not make the statutory findings. Nonetheless, the court implicitly found that Morris was not amenable to community control sanctions, noting its concern for Morris's one-year-old son. In particular, Morris admitted that he was sexually interested in children three years of age and older, and *Page 6 that incest was desirable to him. Accordingly, the trial court was permitted to impose a prison term. See State v. Duncan, 8th Dist. No. 87518, 2006-Ohio-5024, ¶ 12. The fact that the judge failed to make the R.C. 2929.13(B) findings does not preclude the imposition of a prison term. Id., citing State v. Christian, Mahoning App. No. 05-MA-89,2006-Ohio-3567. {¶ 9} Morris next challenges his sentence as being disproportionate when compared to other similarly situated defendants in Cuyahoga County. {¶ 10} R.C. 2929.11(B) mandates that the trial court is to impose a sentence that is "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders." {¶ 11} Morris cites several cases where defendants convicted of crimes involving sex offenses against a minor were sentenced to community control sanctions. Conversely, the State cites several cases where defendants have been sentenced to, and this court has affirmed, maximum and consecutive sentences for pandering. {¶ 12} The record in this case reflects that the trial court considered the circumstances that surrounded the incident prior to imposing a sentence that was within the permissible range under R.C. 2929.14. Upon review, this court cannot conclude that Morris's sentence was "contrary to law." *Page 7 {¶ 13} Finally, Morris contends that the trial court's sentence was an "afterthought." Specifically, after the court pronounced sentence, an off-the-record discussion was had between the court and defense counsel. The court then went back on the record, telling Morris that he had indicated an interest in incest and that the sentence was for the protection of his son. {¶ 14} A review of the record, however, reveals that the court had, prior to pronouncing the sentence, considered Morris's interest in incest, young children, and the fact that he has a young son. The court's further elaboration on that point was apparently at defense counsel's request, and not because it was a mere "afterthought." {¶ 15} Based on the above, the court's sentence was not contrary to law, and the sole assignment of error is overruled. Affirmed. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. 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. *Page 8 CHRISTINE T. McMONAGLE, J., CONCURS; SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE CONCURRING OPINION 1 Morris and the State argue in terms of an abuse of discretion standard. Following the Supreme Court of Ohio's decision in State v.Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470, there has been some confusion among the appellate districts regarding the standard of review to apply to maximum, consecutive, or more than minimum felony sentences. This evidently arose from the Foster court's holding that R.C. 2953.08(G) no longer applies insofar as it refers to the sentencing statutes that the court held unconstitutional and severed.Foster, supra at ¶ 99. Some appellate courts interpreted this to mean that Foster eliminated the clear and convincing standard "and left a void concerning the applicable standard of review in sentencing matters." State v. Saunders, 5th Dist. No. 2006-CA-00058,2007-Ohio-1080, ¶ 21. The Fifth District therefore reinstituted the abuse of discretion standard in reviewing the imposition of consecutive sentences. The Ninth District Court of Appeals has also interpretedFoster as eliminating the clear and convincing standard. State v.Windham, 9th Dist. No. 05CA0033, 2006-Ohio-1544. We, however, believe the correct standard of review, even after Foster, is that we may not disturb an imposed sentence unless we find by clear and convincing evidence that the sentence is not supported by the record or is otherwise "contrary to law," and follow our own cases (Moore andDonahue, supra), and the numerous other appellate districts, that have applied that standard. See State v. Johnson, 6th Dist. No. OT-07-007,2007-Ohio-6000, ¶ 11; State v. Rhodes, 12th Dist. No. CA2005-10-426,2006-Ohio-2401, ¶ 4; State v. Vickroy, 4th Dist. No. 06CA4,2006-Ohio-5461, ¶ 15; State v. White, 11th Dist. No. 2005-A-0086,2006-Ohio-5370, ¶ 13; State v. Sheppard, 1st Dist. Nos. C-060042, C-060066, 2007-Ohio-24, ¶ 16; State v. Parrish, 2d Dist. No. 21206,2006-Ohio-4161, ¶ 62; State v. Ramos, 3d Dist. No. 4-06-24,2007-Ohio-767, ¶ 23; State v. Warren, 7th Dist. No. 05 MA 91,2006-Ohio-1281, ¶ 12-17; State v. Rice, 12th Dist. No. CA2006-01-002,2006-Ohio-5511, ¶ 3.

2016-07-06 06:42:27.588916+00

OPINION Appellant Nicholas M. Meade appeals from a decision and order of the juvenile court adjudicating him delinquent after finding that Meade had committed three counts of Rape. Meade argues that the trial court erred by denying his pre-trial motion for a bill of particulars, and by denying his motion for a mistrial made during the proceedings. Meade also contends that his counsel provided him with constitutionally ineffective assistance of counsel, and that the trial court's finding that he had committed three counts of Rape was not supported by sufficient evidence, and was against the manifest weight of the evidence. We conclude that the trial court did not err by denying Meade's motion for a bill of particulars, because it did so on the basis of the State's representation that it had already divulged all the information that it had regarding the times when the offenses may have occurred. We also conclude that the trial court did not err by overruling Meade's motion for a mistrial when it became known that the State's representation regarding full disclosure was false; Meade received a fair trial despite the failure of full disclosure, because the trial court ordered the State to reveal the information to Meade that had been withheld, and gave Meade the opportunity to request a continuance to adjust his defense strategy to the new information. We further conclude that Meade has failed to establish that his defense counsel was constitutionally ineffective for not availing himself of the opportunity for a continuance, because Meade has failed to show a reasonable probability of a different outcome if his defense counsel had done so. We also conclude that the trial court's finding that Meade was delinquent by reason of having committed the three counts of Rape with which he was charged was supported by sufficient evidence and was not against the manifest weight of the evidence. Accordingly, the judgment of the trial court is Affirmed. I In January, 2000, a complaint was filed in the Juvenile Division of the Common Pleas Court of Montgomery County, charging Meade with being delinquent in that he had committed three counts of Rape against his step-brother, S.C., in violation of R.C. 2907.02(A)(1)(b). The complaint alleged that the offenses occurred at some time between March, 1996, and April, 1999. At the time of the hearing, Nicholas was 17 years old, and S.C. was nine years old. At the time of the alleged offenses, Nicholas was 15 years old, and S.C. was between the ages of six and eight. Prior to trial, Meade filed a motion for a bill of particulars, requesting that the State provide specific dates and times for each of the three Rape counts brought against him. Meade also moved to suppress any statements he made to police. Immediately prior to the hearing on the charges, Meade withdrew his motion to suppress. With respect to Meade's motion for a bill of particulars, the prosecutor represented that it had fully disclosed to the defense all of the information available to it in the case. Meade's defense counsel accepted the prosecutor's representation, but voiced skepticism that the State had no evidence that would have allowed the defense to narrow the time frame during which the charged offenses were allegedly committed. On this basis, the trial court denied the motion for a bill of particulars. In order to prove its charges, the State called S.C. to the witness stand, who testified that Meade engaged in sexual conduct with him in the basement and bedroom of S.C.'s house on Circleville Street, in Vandalia Ohio. According to S.C., Meade engaged in sexual conduct with him "more than one time" in both the basement and bedroom. S.C. testified that during the encounters he asked Meade to stop, but Meade refused. S.C. testified that he did not tell his mother, Vicky Meade, who was Nicholas' stepmother, about the abuse at first, because he was scared, and Nicholas had threatened to "do it harder" if he told. The State also called Vicky Meade as a witness. During cross-examination, Ms. Meade revealed that she had given the prosecutor a list of the dates on which Nicholas had visited her home on Circleville Street in 1996 and 1997. Upon hearing this, Meade's defense counsel moved for a mistrial on the ground that the State had misrepresented that it had fully disclosed all material available to it that would have narrowed the time frame in which the alleged offenses occurred. After adjourning to chambers to discuss the motion, the trial court ruled that the list should have been disclosed to the defense, because it "narrows the time frame down upon which the complaint is based, [and] gives * * * some clarification as to when the alleged delinquent had access with regards to the victim." Nevertheless, the trial court refused to declare a mistrial. Instead, it ordered the prosecutor to turn the list over to defense counsel immediately, and adjourned the proceedings from 11:15 a.m. to 1:15 p.m., to allow the defense to review the information contained in the list. The trial court stated that it would "entertain" a request from defense counsel for a continuance of the proceedings when it reconvened at 1:15 p.m. When the court reconvened, defense counsel reserved his right to request a continuance based on the newly disclosed list until the close of the State's case. The trial court acknowledged this reservation of the right to request a continuance, and indicated that it would consider a request for a continuance made at the close of the State's case. Neither at this time, nor later, did the trial court indicate any unwillingness to grant a continuance to allow the juvenile to prepare a defense based upon the newly disclosed information. At the close of the State's case, defense counsel did not move for a continuance, but instead, called several witnesses on Meade's behalf, including Meade, himself, who denied S.C.'s allegations. Meade testified that he let S.C. touch his private parts once after S.C. had kept "bugging" him to let him do it. Following the hearing, the trial court found that the State had proven the Rape charges beyond a reasonable doubt, and that, therefore, Meade was delinquent by reason of having committed acts which if committed by an adult would constitute felonies of the first degree. In its May 30, 2000 Order of Disposition, the trial court committed Meade to the Department of Youth Services for a minimum period of 12 months and a maximum period not to exceed Meade's attainment of his 21st birthday. However, the trial court suspended Meade's commitment to the Department of Youth Services and placed him on supervised probation for a term of one year. As a condition of probation, the trial court ordered Meade to serve a 29-day sentence at the Dora Tate Center, and to attend counseling with a sex offender therapist. The trial court ordered reviews of Meade's progress to be sent to the trial court every 30 days. Meade sought and received a stay of his commitment to the Dora Tate Center pending his appeal to this court. Meade appeals from the trial court's May 30th Order of Disposition. II Meade's First, Second, and Third Assignments of Error state as follows: THE TRIAL COURT ERRED IN DENYING THE MOTION FOR A BILL OF PARTICULARS. THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. Initially, Meade asserts that the trial court erred in denying his motion for a bill of particulars, wherein he sought to have the State provide him with the specific dates and times for the alleged offenses. Unlike the Ohio Rules of Criminal Procedure, which provide for a request for a bill of particulars — Crim. R. 7(E) — the Ohio Rules of Juvenile Procedure do not so provide. Meade argues that due process requires that a juvenile be given a bill of particulars upon request to enable him to prepare a defense to any charge leveled against him. However, even if we assume, without deciding, that a juvenile possesses a due process right to be provided with a bill of particulars upon request, it still would not change the result here. At the time the trial court overruled Meade's request for a bill of particulars, the State had represented that it had made a full disclosure of all of the information available to it regarding the case. The trial court did not act improperly by accepting that representation. Indeed, even defense counsel felt compelled to accept the State's representation, though he did express skepticism, which turned out to be well-founded. Therefore, the question remaining before us is whether the trial court erred in failing to grant Meade's motion for a mistrial upon learning that the State had not made a full disclosure, as it had represented. Mistrials need be declared only when the ends of justice so require, and a fair trial is no longer possible. State v. Garner (1995),74 Ohio St. 3d 49, 59. The decision to grant or deny a mistrial lies within the trial court's sound discretion. Id. In order to demonstrate that a trial court has abused its discretion in denying a motion for a mistrial, it must be shown that the trial court's decision was arbitrary, unreasonable, or unconscionable. State v. Nichols (1993),85 Ohio App. 3d 65, 69. Here, any prejudice that Meade suffered as a result of the State's failure to divulge the existence of Mrs. Meade's list of his visitations for 1996 and 1997 could have been cured by a request for a reasonable continuance to allow Meade's defense counsel to review the list and adjust his trial strategy, if necessary. Presumably, the main interest the defense had in narrowing the time frame was to establish, if possible, an alibi for the time of one or more of the offenses. The trial court gave defense counsel an opportunity to review the list, and advised defense counsel that it was willing to entertain a motion for a continuance. Since no jury was involved, the trial court could have given the defense ample time to review the information that had been withheld. The defense, after not only reviewing the information, but after hearing all of the State's evidence, chose not to seek a continuance. Meade contends that his defense counsel provided him with constitutionally ineffective assistance by failing to request additional time to review the information withheld by the State. We disagree. In Ohio, a properly licensed attorney is presumed to be competent; therefore, a criminal defendant has the burden of showing that his counsel was constitutionally ineffective. State v. Calhoun (1999),86 Ohio St. 3d 279, 289. In order to prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel's performance fell below an objective standard of reasonableness, and that but for his counsel's errors, there is a reasonable probability that the outcome of his trial would have been different. Strickland v.Washington (1984), 466 U.S. 668. A failure to make an adequate showing on either the "performance" or "prejudice" prong of the Strickand standard will doom the defendant's claim. Id. Here, Meade has not shown how his defense would have been different, let alone, how the outcome of his trial would have been different, if his defense counsel had requested additional time to review the information withheld by the State. For all we know from this record, Meade and his counsel discussed the dates, and concluded that no alibi could be established. In that event, experienced trial counsel would not want to draw the attention of the trial court, as the fact-finder, to the fact that no alibi could be established; to the contrary, trial counsel would prefer in that event to let the matter drop without further comment, as exemplified by this record. Furthermore, Ms. Meade testified that the list of Nicholas' visitation was incomplete. She compiled the list not for the trial, but simply because Nicholas' visitation had become an issue between her husband (Nicholas's father) and his former wife (Nicholas' natural mother). Ms. Meade testified that once the visitation issue had been dropped, she stopped listing Nicholas' visits. Ms. Meade testified there were times that Nicholas could have visited her house between September, 1997 and January, 1998, which she simply did not write down, and she had "no idea" of the dates as to when Nicholas was at her house in 1998. Therefore, Meade has failed to demonstrate that his counsel's performance fell below an objective standard of reasonableness or that there is a reasonable probability that the outcome of his trial would have been different absent the claimed errors. Accordingly, Meade's First, Second, and Third Assignments of Error are overruled. III Meade's Fourth Assignment of Error states: THE DECISION OF THE TRIAL COURT WHICH ADJUDICATED APPELLANT A DELINQUENT CHILD IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Meade argues that the trial court's finding that he committed the three counts of Rape with which he was charged is not supported by sufficient evidence and is against the manifest weight of the evidence. We disagree. When considering whether the evidence presented at trial is sufficient to support a conviction, an appellate court must determine whether the evidence, if believed, "would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks (1991),61 Ohio St. 3d 259, paragraph two of the syllabus. The relevant inquiry is whether any rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt, with the evidence presented viewed in a light most favorable to the prosecution.Id. Meade was charged with raping S.C., pursuant to R.C.2907.02(A)(1)(b), which states in relevant part: (A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies: * * * (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person. R.C. 2907.01(A) defines "sexual conduct" as meaning * * * vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. Here, S.C., who was nine years old at the time of trial, testified that his step-brother Meade performed fellatio and anal intercourse on him more than one time in the basement, and more than one time in the bedroom of his home on Circleville Street in Vandalia, Ohio. S.C. testified that he asked Meade to stop, but Meade refused. S.C. also testified that he did not tell anyone about Meade's actions, because he was afraid of Meade, who had warned him at one point, that he would "do it harder" if S.C. told someone. This evidence, if believed, is alone sufficient to establish the elements of the offense of Rape as set forth in R.C.2907.01(A)(1)(b). The weight to be given the evidence and the credibility of the witnesses are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. Deference is given to the findings of the trier of fact because the trier of fact is able to observe the witnesses' demeanor, gestures, and voice inflections and use those observations in weighing the witnesses' credibility.Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80. In considering whether a conviction is against the manifest weight of the evidence, a reviewing court must weigh the evidence presented and consider the credibility of the witnesses to determine whether the trier of fact "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."State v. Martin (1983), 20 Ohio App. 3d 172, 175. "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." Id. Here, the trial court's decision to find Meade delinquent on the basis that he committed the three counts of Rape with which he was charged was not against the manifest weight of the evidence. Given S.C.'s young age when the alleged crimes occurred, it is not surprising that he could not remember the exact times, locations, and number of times he was abused by Meade. His inability to remember those details does not make his testimony inherently unreliable. S.C.'s failure to raise his allegations against Meade sooner is also understandable in light of the threats that Meade made to him. The fact that S.C.'s medical exam revealed no physical manifestations of sexual assault was unsurprising since the exam was conducted several months after the last reported incident of abuse occurred. The facts that S.C. made the allegations against Meade after he had watched the movie Deliverance, which contains scenes depicting male homosexual rape, and after his mother had related to him that she had been abused during her childhood, do not establish fabrication on the part of S.C. These factors may have prompted S.C. to overcome his reluctance and make a truthful report of the rapes he endured. These were all facts that the trial court could have and, presumably, did take into account in reaching its decision; however, they do not demonstrate that the trial court's decision is contrary to the manifest weight of the evidence. The same is true of a statement taken from the notes from Ms. Meade's and S.C.'s family physician, Dr. Mark Striebel, that was first proffered in evidence after the State's objection to its admission had been sustained, but was later admitted in evidence, without objection, as part of S.C.'s medical records. Dr. Striebel's notes from March, 1999, indicated that S.C. initially had stated that his step-father had beaten him, but then retracted the allegation after his mother became angry. Meade has not assigned as error the trial court's initial refusal to admit in evidence Dr. Striebel's statement from his notes, apparently because the statement was eventually admitted as part of S.C.'s medical records. Meade instead argues that this fact damaged S.C.'s credibility. However, the statement, along with the remainder of S.C.'s medical records, was presented to the trial court, and the trial court chose to believe S.C.'s allegation against Meade notwithstanding his alleged statement to Dr. Striebel. Because the trial court was in the best position to gauge S.C.'s credibility, we cannot say that the trial court's decision was contrary to the manifest weight of the evidence. Based upon our review of the transcript of the trial, we are not prepared to find S.C.'s testimony unworthy of belief. Meade's Fourth Assignment of Error is overruled. IV All of Meade's assignments of error having been overruled, the judgment of the trial court is Affirmed. __________________ FAIN, J., GRADY, P.J., and BROGAN, J., concur.

2016-07-06 06:42:28.002604+00

OPINION {¶ 1} Defendant, Timothy Richardson, was convicted after entering no contest pleas to multiple offenses arising out of an armed robbery of Rolfe's Jewelers in Springfield. Those offenses include aggravated robbery with a firearm specification, grand theft of a motor vehicle, having weapons under disability, and carrying concealed weapons. The trial court sentenced Defendant to consecutive prison terms totaling eighteen years and ten months. Defendant has timely appealed to this court. He presents one assignment of error for review: {¶ 2} "The trial court erred to the substantial prejudice of the defendant-appellant by overruling defendant-appellant's pretrial motion to dismiss for violation of defendant's right to a speedy trial." {¶ 3} The sole issue in this appeal is whether an unjournalized continuance granted at Defendant's own request extends the time provided by R.C. 2945.71 for bringing Defendant to trial. We hold that it does, and affirm the judgment of the trial court. {¶ 4} On October 7, 2002, Defendant was arrested and jailed for aggravated robbery and a number of other offenses arising out of his participation in the armed robbery. Defendant remained in jail in lieu of bail solely on those pending charges until April 16, 2003, when he posted bail and was released from jail. On October 15, 2002, Defendant was indicted. The trial court scheduled Defendant's trial to begin on December 16, 2002. {¶ 5} On December 4, 2002, Defendant's counsel, Linda Cushman, was permitted to withdraw. At a hearing held on December 11, 2002, the trial court appointed Attorney Paul Kavanaugh as counsel for Defendant. Defendant's new counsel orally requested a continuance of the December 16, 2002, trial date in order to have more time to prepare. The trial court granted Defendant's requested continuance, but did not journalize that decision until some months later when it filed a nunc pro tunc entry on October 30, 2003. The trial court rescheduled Defendant's trial for March 4, 2003. {¶ 6} In the interim, yet another attorney, Daniel J. O'Brien, entered his appearance as counsel for Defendant, replacing Kavanaugh. On March 3, 2003, Attorney O'Brien filed a motion seeking a continuance of the March 4 trial because he was not adequately prepared. The trial court granted Defendant's requested continuance and filed an order to that effect on March 10, 2003. By Entry filed March 26, 2003, the trial court rescheduled Defendant's trial for June 2, 2003. {¶ 7} The June 2, 2003 trial date, as well as subsequent trial dates of September 3, 2003, and October 27, 2003, were also continued at Defendant's requests. During this period of time numerous pretrial motions were also filed by Defendant which extended the time for trial pursuant to the provisions in R.C.2945.72. {¶ 8} A fourth attorney, Joseph Reed, entered his appearance as counsel for Defendant, replacing Attorney O'Brien. On October 9, 2003, Defendant filed his motion to dismiss claiming a violation of his speedy trial rights. Following a hearing held on October 27, 2003, the trial court overruled Defendant's motion to dismiss on October 30, 2003. Defendant subsequently entered no contest pleas to the charges. {¶ 9} The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution guarantee a criminal defendant the right to a speedy trial. In Ohio that right is implemented by the statutory scheme imposing specific time limits in R.C. 2945.71 et seq. State v. Pachey (1980),64 Ohio St.2d 218, 221. The particular rights which that statutory scheme confers attach when criminal charges are placed against a defendant. They continue in operation so long as those charges remain pending, until he is brought to trial. {¶ 10} R.C. 2945.71(C)(2) requires the State to bring a person against whom a charge of felony is pending to trial on the charge within two hundred seventy days after the person's arrest. Each day defendant is held in jail in lieu of bail on the pending charge is counted as three days. R.C. 2945.71(E). The time within which an accused must be brought to trial may be extended pursuant to the provisions in R.C. 2945.72. In that regard, R.C.2945.72(H) provides that the time for bringing a defendant to trial may be extended by "the period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion." {¶ 11} In arguing that his speedy trial rights were violated, Defendant challenges only the validity of the continuance of the original December 16, 2002 trial date. The parties agree that any speedy trial violation that occurred necessarily took place prior to the court's March 26, 2003 entry granting a defense motion to continue the trial from March 4, 2003, until June 2, 2003. Thereafter, Defendant's requested continuances of subsequent trial dates and the many pretrial motions that he filed extended the time for trial pursuant to R.C. 2945.72 such that Defendant was brought to trial within the time limits provided by R.C.2945.71, if the continuance of the original December 16, 2002 trial date was valid. {¶ 12} Defendant was held in jail in lieu of bail solely on the pending charges in this case between the date of his arrest, October 7, 2002, and the date he posted bail, April 16, 2003. Therefore, he is entitled to three for one credit for that time period pursuant to R.C. 2945.71(E). In order to comply with R.C.2945.71(C)(2), the State was required to bring Defendant to trial in this case within ninety days after his arrest, on or before January 6, 2003, because the ninetieth day fell on Sunday, January 5, 2003. {¶ 13} The trial court originally set Defendant's trial to begin on December 16, 2002, well within the ninety day limit. At a hearing held on December 11, 2002, the trial court granted an oral request by Defendant's counsel to continue the December 16, 2002 trial date. The trial court ordered Defendant's trial rescheduled to March 4, 2003. That decision continuing the original trial date at Defendant's request however was not jounalized until October 30, 2003, when the court filed a nunc pro tunc entry. The trial court explained that when it filed its Entry on December 16, 2002, continuing the trial at the request of Defendant's co-defendant, Hakeem Smith, the court inadvertently omitted from its Entry the continuance it had orally granted at Defendant's request on December 11, 2002. Relying upon State v. King, 70 Ohio St.3d 158, 1994-Ohio-412, Defendant argues that the court's continuance of the original December 16, 2002 trial date, at Defendant's request, was not valid because it was not journalized prior to the expiration of the statutory time limit for bringing Defendant to trial, January 6, 2003. We disagree. {¶ 14} Continuances granted "other than upon the accused's own motion" pursuant to R.C. 2945.72(H), that is, continuances granted either at the State's request or ordered sua sponte by the court, must be reasonable. To evidence reasonableness, a continuance must be supported by an explanation. Therefore, in those two situations the trial court must journalize the continuance before the expiration of the time limit set forth in R.C. 2945.71, and must state in its journal entry the reasons for the continuance. State v. Garries (Dec. 19, 2003), Montgomery App. No. 19825, 2003-Ohio-6895. See also: State v. Mincy (1982), 2 Ohio St.3d 6; State v. King, 70 Ohio St.3d 158,1994-Ohio-412; State v. Stamps (1998), 127 Ohio App.3d 219. {¶ 15} On the other hand, an explanation or reason for a continuance in a journal entry is not necessary, even though preferable, when the continuance clearly is granted "on the accused's own motion." Garries, supra; Stamps, supra. In such cases Defendant is obviously aware of the reasons for the continuances that were granted. When the defendant's request for a continuance appears in the record, the absence of an explanation for the continuance in a journal entry should not allow Defendant to use the speedy trial statute as a sword rather than the shield it was designed to be. Id. {¶ 16} Defendant's reliance upon State v. King, supra, is misplaced, as that case dealt with sua sponte continuances by the trial court. Here, the record affirmatively demonstrates that at a hearing on December 11, 2002, the trial court granted a request made by Defendant's attorney to continue the December 16, 2002 trial date the court had set. The court rescheduled the trial for March 4, 2003. This continuance granted upon Defendant's own motion, which appears in the record, is valid even in the absence of a journal entry, and it extends the time for bringing Defendant to trial by the period of that continuance, December 16, 2002 until March 4, 2003, a period of seventyeight days.State v. Garries, supra; State v. Sanders (Dec. 10, 1996), Pickaway App. No. 95CA6; R.C. 2945.72(H). Thus, rather than January 6, 2003, the State had until March 25, 2003, to bring Defendant to trial in a timely manner. {¶ 17} On March 3, 2003, Defendant filed a motion requesting a continuance of the trial set for March 4, 2003. The trial court granted Defendant's requested continuance, this time by journal entry/order filed March 10, 2003, and subsequently rescheduled the trial for June 2, 2003. This second continuance of the trial, also granted upon Defendant's own request, likewise extends the time for bringing Defendant to trial by the period of that continuance, from March 4, 2003, until June 2, 2003, a period of ninety days. Thus, instead of March 25, 2003, the State had until June 23, 2003, to timely bring Defendant to trial. Defendant does not challenge in this appeal any of the subsequent continuances of his trial date after June 2, 2003. {¶ 18} The trial court properly charged to Defendant for speedy trial purposes the delay in bringing him to trial caused by the continuances he requested of the original December 16, 2002 trial date and the March 4, 2003 trial date. Accordingly, Defendant's trial was commenced within the time limits required by R.C.2945.71, as properly extended pursuant to the provisions of R.C.2945.72. No violation of Defendant's speedy trial rights has been demonstrated. {¶ 19} The assignment of error is overruled. The judgment of the trial court will be affirmed. Wolff, J. and Young, J., concur.

2016-07-06 06:42:28.027479+00

On November 8, 1988, appellant entered pleas of guilty to two counts of rape (R.C. 2907.02) and one count of illegal use of a minor in nudity-oriented material (R.C. 2907.323). The Perry County Common Pleas Court sentenced appellant to five to twenty-five years on each rape conviction, to be served concurrently, and a sentence of two to fifteen years incarceration on the remaining charge. Following the enactment of R.C. Chapter 2950, Ohio's version of Megan's Law, the warden of the institution where appellant was incarcerated recommended that appellant be adjudicated as a sexual predator. Following a hearing on the recommendation, the court found appellant to be a sexual predator. Appellant assigns a single error on appeal: ASSIGNMENT OF ERROR WHETHER COURT'S FINDING THAT APPELLANT IS A "SEXUAL PREDATOR" IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A judgment supported by some competent, credible evidence will not be reversed by the reviewing court as against the manifest weight of the evidence. C.E. Morris Company v. FoleyConstruction Company (1978), 54 Ohio St.2d 279; State v.Albaugh (February 1, 1999), Stark App. No. 1997CA00222, unreported. A "sexual predator' is statutorily defined as a person who has been convicted of a sexually oriented offense, and is likely to engage in the future in one or more sexually oriented offenses. R.C. 2950.01(E). In determining whether an individual is a sexual predator as defined by statute, the court is to consider the following factors: entire body. Appellant admitted that he placed his mouth on her breast and vagina, and inserted his penis to her mouth. Appellant admitted that he took a picture of one of the victims naked, sitting on the edge of the bath tub, with her legs spread. This admission gave rise to the charge of illegal use of a minor in nudity-oriented material. Appellant admitted that he played strip poker with one of the victims, and then engaged in sexual intercourse with her. Appellant also admitted to touching his daughter all over her body, after she had disrobed. Appellant argues that the State did not meet its burden of demonstrating that he was likely to re-offend in the future, as the sole witness for the State admitted that he could not express an opinion concerning appellant's likelihood to re-offend, based on facts arising since his incarceration. However, the statute does not require expert testimony on the issue of the likelihood to re-offend. Rather, the statute sets forth factors, listed above, from which the court may make the determination. In the instant case, the convictions arose from three separate incidents. All the victims were under the age of thirteen, and one of the victims was appellant's own daughter. The judgment is not against the manifest weight of the evidence. The assignment of error is overruled. For the reasons stated in the Memorandum-Opinion on file, the judgment of the Perry County Common Pleas Court is affirmed. --------------------------- --------------------------- --------------------------- JUDGES

2016-07-06 06:42:30.212351+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellant, Brandy Stahl-Welsh, appeals from the judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated her parental rights to her minor child, K.S., and placed the child in the permanent custody of Summit County Children Services Board ("CSB"). This Court reverses. I. {¶ 2} Appellant and Timothy Dunn are the natural parents of K.S., born on February 2, 1998. Dunn's parental rights were also terminated and he is not a party to this appeal. After the birth of K.S., appellant married Daniel Welsh, and Welsh has been incorporated into these proceedings through case-planning. {¶ 3} CSB was initially involved with the family in July 2000 when K.S. was removed from the home as a neglected child. The case was resolved in late 2001 when K.S. was placed in the care of Liza Snyder, a maternal aunt, and an infant brother was placed with his father. {¶ 4} On March 1, 2002, CSB filed the complaint which forms the basis of the present action, and alleged that K.S. was abused, neglected, dependent and endangered. The affidavit asserted that, while in the care of Snyder, the child apparently swallowed Pine Sol, a cleaning fluid, and became unresponsive. At the hospital, the child was found to have bruises over her entire body. Tests revealed subdural hematoma, retinal hemorrhaging, and yielded a diagnosis of shaken baby.1 The child was said to have a history of self-induced abuse and had reportedly attempted to drink other fluids not intended for human consumption. The police were notified, and K.S. was taken into custody pursuant to Juv.R. 6. {¶ 5} Snyder denied abusing the child, but relinquished custody at the shelter care hearing. She was dismissed as a party at that time. Appellant then moved to obtain custody of her child. Following hearings, the child was adjudicated abused and dependent, and was placed in the temporary custody of CSB. {¶ 6} In December 2002, CSB moved for permanent custody and, in April 2003, appellant moved for a six-month extension of temporary custody. Following a hearing on both motions and without opposition by CSB or the guardian ad litem, the trial court found that sufficient progress had been made on the case plan and granted a six-month extension. {¶ 7} In August 2003, appellant moved for a second six-month extension, and in September 2003, CSB again moved for permanent custody. On December 31, 2003, the trial court denied the motion for an extension, terminated the parental rights of appellant and placed the child in the permanent custody of CSB. This appeal followed. Appellant has assigned two errors for review. II. FIRST ASSIGNMENT OF ERROR "R.C. 2151.414(B)(1)(d) Imposes a statutory presumption of parental unfitness if a trial court finds that a child has been in the temporary custody of csb for twelve or more months of a twenty-two month period and violates a parent's substantive and procedural due process rights as guaranteed under the ohio and united states constitutions." {¶ 8} Through this assignment of error, appellant challenges the constitutionality of R.C. 2151.414(B)(1)(d). She did not, however, assert this challenge in the trial court. Generally, an appellate court will not consider any error that could have been, but was not, called to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. State v. Childs (1968), 14 Ohio St.2d 56, paragraph three of the syllabus. The "[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal." State v. Awan (1986),22 Ohio St.3d 120, syllabus. {¶ 9} Because appellant did not raise this constitutional challenge below, this Court will not consider it now. The first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR "The trial court's award of permanent custody is not supported by sufficient credible evidence meeting the burden of clear and convincing evidence that permanent custody was in the best interest [of k.s.]." {¶ 10} Through this assignment of error, appellant has asserted that the trial court erred in concluding that there was clear and convincing evidence that permanent custody was in the best interest of the child This Court agrees. {¶ 11} Before a juvenile court can terminate parental rights and award permanent custody to a proper moving agency, it must find clear and convincing evidence of both portions of the permanent custody test as set forth in R.C. 2151.414(B). Specifically, the juvenile court must find: (1) that one of the factors in R.C. 2151.414(B)(1)(a)-(d) applies, and (2) that permanent custody is in the best interest of the child, pursuant to the factors set forth in R.C. 2151.414(D). See In re WilliamS. (1996), 75 Ohio St.3d 95, 99. Clear and convincing evidence is that which will cause the trier of fact to develop a firm belief or conviction as to the facts sought to be established.Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. {¶ 12} In the present case, the trial court found that the first prong of the permanent custody test was met by the fact that the child had been in the temporary custody of CSB for more than 12 months of the prior 22-month period. See R.C.2151.414(B)(1)(d). The trial court also found that permanent custody was in the best interest of the child. See R.C.2151.414(D). In this assignment of error, appellant has asserted that the evidence fails to support the conclusion of the trial court that permanent custody is in the best interest of the child. {¶ 13} In making the determination that the grant of permanent custody to the agency is in the child's best interest, the juvenile court was required to: "[C]onsider all relevant factors, including, but not limited to, the following: "(1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child; "(2) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child; "(3) The custodial history of the child, 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; [and] "(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[.]" R.C.2151.414(D)(1)-(4)2 {¶ 14} "Although the trial court is not precluded from considering other relevant factors, the statute explicitly requires the court to consider all of the enumerated factors." See In re Smith (Jan. 2, 2002), 9th Dist. No. 20711, 2002-Ohio-34, at ¶ 6; see, also, In re Palladino, 11th Dist. No. 2002-G-2445, 2002-Ohio-5606, at ¶ 24. {¶ 15} The evidence before the trial court is summarized below. Witnesses were taken out of order at the hearing below, and are rearranged here for the sake of clarity. {¶ 16} Christina Snyder was the CSB caseworker assigned to the prior case involving K.S. The caseworker explained that the case plan objectives at that time were for appellant to: (1) attend parent education classes; (2) attend anger management classes; (3) seek mental health evaluations; (4) and obtain suitable housing. That case was terminated in November 2001 when K.S. was placed with a relative, Liza Snyder, and an infant son was placed with his father. The caseworker stated that appellant complied with the requirements of her case plan, but was not able to satisfy CSB as to her ability to interact with both children at the same time. {¶ 17} Eileen Kostich, of CSB's medically fragile unit, was assigned to the present case when K.S. was admitted to the hospital in February 2002. Kostich testified that although appellant was cooperative, she took a long time to get started on case plan objectives and then did not complete enough to reunify. Kostich stated that she still has no idea whether appellant would be able to appropriately parent her child due to the child's behavioral needs. {¶ 18} She explained that the case plan objectives in the present case required appellant to: (1) address K.S.'s behavioral and medical needs; (2) attend parent education classes; and (3) obtain a mental health evaluation. Mr. Welsh was required to obtain a mental health evaluation and attend anger management classes. Kostich stated that the case plan objectives regarding parenting classes, mental health assessments and anger management were completed. Later, because of a disparity between a mental health evaluation of appellant during the previous case and a more recent one, Kostich requested that another assessment be done at Catholic Social Services. That evaluation resulted in a recommendation for continued counseling. {¶ 19} Although appellant attended two sets of parenting classes, Kostich stated that there was little interaction between appellant and the child during the visitations she observed. The child actively played and appellant watched. Kostich conceded, however, that she has received no reports that appellant did not act appropriately in any of the supervised visits with K.S. Kostich transported the child to visitations and has not observed problems during transport. Nor, she stated, has the child expressed any fear or anger towards appellant during those transports. {¶ 20} Although Kostich stated that she tried to assist appellant in gaining insight and education regarding the needs of K.S., there was no evidence of any effort to provide her with specialized parenting classes for a special needs child — only general parenting classes with brief references to special needs children. {¶ 21} While Kostich complained that appellant did not request visits until "really late in the case," she also admitted she was not aware that appellant filed requests to be involved with medical providers and participate in visitation in April and July 2002, very early in these proceedings. {¶ 22} Kostich testified that she believed that permanent custody in CSB was in the best interest of the child because she needs a stable home and constant monitoring, and appellant and her husband are not able to provide that. {¶ 23} Kimberly Berger, the second foster mother, also testified. Berger explained that she and her husband provide care for their own 18-year-old and seven-year-old daughters, K.S. and a nine-month-old foster child. When K.S. came into Berger's care in April 2002, at the age of four, K.S. exhibited several problems, including self-destructive behavior, poor speech, terrible balance, and was developmentally delayed. These problems were addressed through occupational therapy, physical therapy, and speech therapy. {¶ 24} Weekly visitation with K.S.'s mother began in June 2002 at the visitation center. Berger did not deny that the child's treatment schedule was inconsistent, but explained that she had difficulty getting the child to appointments because of her work schedule. CSB then provided a driver for the child's appointments. The child continued to miss several appointments due to weather and traffic problems encountered by the CSB driver. {¶ 25} According to Berger's testimony, the child became angry and returned to her self-destructive behavior an hour or so after visits with her mother and for the next day or two. Recovery took progressively longer, and Berger decided to raised the issue with the caseworker, Eileen Kostich. Following consultation with Dr. John Duby, the visits were stopped. After four to six weeks, the child's behavior reportedly improved. According to Berger, when joint-counseling sessions between mother and child were begun in April or May 2003, the self-destructive behaviors returned. {¶ 26} Berger admitted that K.S. does not complain about seeing her mother or Mager. Also, her husband was told by the CSB transporter that K.S. became upset or cried when the visits were over and appellant was leaving her. {¶ 27} Berger stated that K.S. used to speak negatively about her aunt, indicating that she did not want to go back with her aunt because the aunt hurt her. K.S. does not mention her mother very much, except occasionally to ask if she is "ever going to see mommy again." Berger said no one ever suggested to her that she should participate in the joint-counseling sessions. {¶ 28} Dr. John Duby, director of developmental and behavioral pediatrics at Children's Hospital Medical Center, testified regarding his periodic evaluations of K.S. He initially saw the child for a behavioral evaluation in June 2001, while she was under the care of her maternal aunt. At that time, there were concerns regarding the child's intense temper tantrums, biting, hitting, kicking walls, throwing herself on the floor, and banging her head. K.S. was found to be a year behind in all developmental skills, but presented no signs of neurological disturbance. {¶ 29} Dr. Duby saw the child again, in February 2002, when she was in intensive care after suffering a subdural hematoma. Dr. Duby thought it unlikely that her injury was self-inflicted. K.S. had mild paralysis on the right side. {¶ 30} In August 2002, Kimberly Berger, the foster mother, brought the child to see Dr. Duby. He found that the child had made remarkable improvement in her neurological examination. She no longer had any weakness on her right side and also showed significant developmental progress. Berger was concerned, however, with deterioration in the child's behavioral functioning, including an increase in disruptive behavior, regression in toileting skills, and deterioration of sleep habits. {¶ 31} According to Berger, this behavioral deterioration coincided with joint-counseling visits between appellant and K.S. Dr. Duby understood Berger to say that the child's behavior deteriorated the day before anticipated visits with appellant and continued for a day or two afterwards. He relied solely on Berger for this information. He explained that the fact that the misbehavior began before the visits was central to any conclusion that the joint sessions with her mother were causing the misbehavior as opposed to a reaction to separation. In reliance on this information from Berger, Dr. Duby therefore recommended that CSB consider discontinuing K.S.'s visits with appellant. CSB did discontinue those visits in August 2003. {¶ 32} Whether or not Berger told Dr. Duby that the child's behavior deteriorated on the day before the visits, it is clear that Berger testified during the permanent custody hearing that the child's behavior did not deteriorate until after the visits. {¶ 33} By March 2003, Dr. Duby observed that K.S.'s behavior problems had improved remarkably, she continued to make developmental progress and the child's physical and neurological exams looked good. He considered it "vital" that K.S. continue to be in a stable, nurturing, predictable, structured environment. He stated that it appeared there had been significant improvement in her overall functioning when visits with appellant were terminated, but he could not be certain that the improvement was related to the termination of the visits with appellant. {¶ 34} Robin Tener, clinical psychologist, then testified regarding her assessment of K.S. in June and July 2002. She initially became involved because K.S. was demonstrating sexualized behavior, possible sexual victimization, and behavior problems. {¶ 35} She testified that K.S. reported that her aunt spanked her a lot, threw her in a toilet, and made vague references to sexual conduct by the aunt. She also reported negative feelings, confusion and distress about whatever contact she had with her mother. K.S. reportedly said, "My mom come over and beat my butt * * *." There was no further evidence regarding this statement. {¶ 36} At times, K.S. would say that she did not like her real mother, but other times she drew pictures for her and asked to see her. The bond between them seemed to vacillate between positive and negative. Tener believed that the child's visitation experience was causing her to feel insecure and anxious. Tener could not conclude whether the child was upset by contact with her mother or by the separation from her. {¶ 37} Robert Bell, psychotherapist for Summit County Catholic Social Services, also testified for CSB. He was asked by CSB to provide an opinion in regard to appellant's parenting skills and mental health evaluation. Bell understood that CSB wanted a second opinion because it believed appellant had more difficulties than an earlier assessment indicated. {¶ 38} Bell did not use any written tests available for determining personality disorders, and has not been trained in psychological testing, but relied on his own experience. The evaluation was conducted during four sessions in May and June 2003. {¶ 39} Bell testified that he believed appellant "is not fit to adequately parent her children. The basis for his opinion was that appellant has serious emotional and psychiatric disturbances that make her unable to parent, including a persistent pattern of poor judgments. Bell diagnosed six personality disorders, including: (1) borderline; (2) antisocial; (3) paranoid; (4) narcissistic; (5) not otherwise specified; and (6) passive aggressive. {¶ 40} He stated that the one characteristic that runs through all these disorders is lying and fabrication. He believed appellant did a lot of lying. The example he provided is that, on one occasion, appellant stated that she had previous counseling at the age of seven, whereas on another occasion, she indicated that she had counseling at the age of 14. Appellant stated during her own testimony that she had counseling from the age of seven until the age of 14. {¶ 41} In addition, Bell "absolutely" believed appellant was serious when she said she would like to have 24 children, and this statement contributed to his opinion. Appellant testified that she would, indeed, like to have many children, but that she was joking when she made that statement. She said she and Mr. Welsh would not be having any more children because he was unable to father children. {¶ 42} Bell also stated that appellant is very impulsive in her decision making. He believed appellant makes poor judgments and that she would overestimate her abilities or the child's abilities. He believed appellant would have difficulty bonding with her child, would be a poor role model for her child, and would not be able to teach her daily life skills. {¶ 43} Bell also met with Mr. Welsh. Although he stated that he was not prepared to discuss Mr. Welsh, he nevertheless went ahead and did so. He stated that he did no intellectual testing, but suspects he is probably below average in IQ. Mr. Welsh has no child-rearing experience and Bell believed he would be easily led. He did not believe Mr. Welsh is capable of being a primary or joint caretaker of the child. {¶ 44} Sheri Walters, an employee at Portage Path Behavioral Health Center, provided individual counseling to appellant for the past year. Appellant came to her with a diagnosis of "phase of life problem," i.e., a change in life that creates stress. Appellant's goal was to work on her case plan and regain custody of her child. She attended very regularly and cancelled only once because of a house fire. She was extremely cooperative and always very pleasant. Her affect was appropriate. She was frustrated at times, but never defensive. {¶ 45} When apprised of Bell's diagnoses, Walters expressed her disagreement. She said that she had not observed any actions by appellant during her sessions that would lead to those diagnoses, and believed that appellant demonstrated rather good problem solving. {¶ 46} Florence Wavle, K.S.'s 2003-2004 classroom teacher and an early intervention specialist, testified at the permanent custody hearing. She stated that K.S. is doing fine academically, but her behavior is erratic. The teacher explained that she charts the children's behavior on a scale: first warning, second warning, loss of privileges, and telephone call home. K.S.'s current behavior usually requires only a first or second warning. Occasionally, her behavior has been worse, Wavle said, and requires a loss of privileges, but that occurred more at the beginning of the school year. Similarly, according to Wavle, K.S. has wet herself and engaged in self-destructive behavior less in the past couple weeks. {¶ 47} When asked if any of the child's erratic behaviors coincided with her joint-counseling sessions with her mother, Wavle stated that K.S. would often be flighty, jumpy, and hard to settle down when she returned, but there were no major outbursts. {¶ 48} Wavle testified that K.S. is just beginning to be able to put her feelings into words. Recently, K.S. said she was going to see her mother and that her mother was going to ask the judge if she could come live with her. Wavle stated that K.S.'s behaviors are manageable in a special education classroom, and that Wavle's special training is necessary to deal with the issues that K.S. has. {¶ 49} Shawn Blake, counseled Mr. Welsh following a referral by CSB. His primary diagnosis was a phonological disorder, a problem with speech and hearing. He was referred to Blake for anger management counseling. According to Blake, Welsh seemed to have skills and knowledge about anger management and maintaining his temper. Welsh was discharged in June 2003, because Blake was comfortable that anger was not a major problem for him. Blake also addressed a history of depressive symptoms and impulse control problems from a previous admission. At the time of discharge, Blake had no remaining concern about any of those issues. There was nothing that led Blake to believe that Welsh could not co-parent a child. According to Blake, Welsh appeared to have an understanding of his role and a willingness to undertake it. {¶ 50} Catherine Neelon monitored the recent visits of appellant and K.S. at the visitation center. She testified that, at first, she had to suggest to appellant that she could bring healthy snacks or dinner for K.S. Thereafter, appellant usually brought dinner and some toys — her favorite dolls and a new microwave toy that she likes. It takes K.S. one-half hour to eat her dinner. Appellant talks with her while she eats, and then K.S. typically plays on her own while appellant watches her. According to Neelon, there is not much interaction. Occasionally, appellant plays ball on the floor with her daughter or helps her put toys away. {¶ 51} Neelon stated that appellant tells K.S. she loves her and gives her hugs.3 Appellant does not say anything to K.S. that concerns Neelon. Appellant asks how she did in school and what she has been doing. There is not a lot of conversation, however. {¶ 52} Neelon testified that during the visits, K.S. has expressed a desire to go home with appellant. She is happy to see her mother, and mother is happy to see her. Appellant has not missed any sessions while Neelon has monitored them. The only time K.S. was upset was two weeks earlier, when she started crying because she said she missed her mother. K.S. does tend to wet herself frequently, and Neelon has to ask her if she needs to go to the bathroom. {¶ 53} When Neelon picks her up from the foster home, the child comes out herself and seems happy to leave the house. On the ride back to the foster home after visits, she always says she had a nice visit. {¶ 54} Neelon stated that three or four weeks ago, K.S.'s lip was cracked, with dried blood on it. Appellant asked her what happened and K.S. said her foster mother hit her. Upon inquiry, the foster mother said that K.S. tripped on a baby toy. Neelon also observed bruises on the child's inner thigh on one occasion. {¶ 55} Gail Mager, a psychologist and clinical counselor at Northeast Ohio Behavioral Health, also testified. Mager began counseling K.S. alone in August 2002, following an assessment by Robin Tener. The child's attendance was sporadic because of difficulties of the foster mother and the CSB transport person to get her to the sessions. In addition, the foster mother was less than cooperative and that contributed to slow progress. {¶ 56} Mager also counseled appellant alone, with her husband, and jointly with K.S. The joint-counseling sessions have taken place weekly since April 2003. Mager believed that the only way to see how the parent-child relationship may blend is to see them together. Out of 15 or 16 scheduled sessions, six were cancelled by CSB, one by Mager, and none by appellant. CSB failed to notify appellant of three of their cancellations. Appellant made a "great effort" to be there, and was "very eager." Mager stated: "It was her desire to have joint sessions with her [daughter] and disappointed when K.S. wasn't there to meet her." {¶ 57} On September 10, 2003, Mager recommended supervised visitation outside the therapeutic setting to the caseworker, with possible extended visits. She based her recommendation on the fact that mother and daughter were doing very well, K.S. was not afraid, and was very comfortable with her mother. {¶ 58} Mager stated that the joint-counseling sessions have gone "very well." She explained: "They are getting to know each other again and getting to understand each other's place developmentally." Mager stated that the sessions have little structure, and K.S. draws appellant into play. No serious concerns were raised by their activities or interaction. There appears to be a bond between them. K.S. knows appellant to be her mother and looks to her as her mother. K.S. can be defiant and strong-willed, but never acted-out while her mother was there. Mr. Welsh attended two of the sessions, and Mager would be happy to have him continue, but CSB refused to allow "other family members" to participate. When he was present, K.S. interacted appropriately with him and initiated interaction with him. {¶ 59} Mager believed K.S. looks forward to seeing her mother. K.S. has never indicated that she did not want to visit, and in fact, was disappointed — and acted-out — on the one occasion that her mother was not present due to a scheduling error. She has never expressed any fear of her mother. K.S.'s communication with Mager has improved significantly since appellant started having joint sessions. {¶ 60} Before the joint sessions, K.S. was very anxious and angry, whereas since the joint sessions with mother, she has begun to open up more and express some of her feelings. She has become much happier and much more eager to come in. She is a different child in her posture and the way she presents herself. Mager believed that the reason K.S. finally progressed is because of reengagement in a relationship with her mother. {¶ 61} In the joint sessions, K.S. has expressed her feelings through interactive play with her mother, such as with puppets. Mager also provides some parenting education and talks with appellant about K.S.'s problems. Mager discusses how appellant might address K.S.'s academic needs and how to succeed in school. {¶ 62} Mager stated that the foster parents have been less than cooperative in encouraging joint-counseling. For example, the foster mother called at one point to say K.S. would not be able to participate until a certain date because of her work schedule, but K.S. did not participate even then. Mager spoke to the foster mother again in February 2003 and "[foster mother] said she didn't see why it would be important for [K.S.] to participate as [she] would probably be going into permanent custody and going to a new home as of the April hearing."4 {¶ 63} Mager testified that K.S. volunteered that she was told by the foster mother that "mommy doesn't love her, that mommy is mean to her." K.S. also expressed that she is reticent to see her biological mother because "it would hurt" her foster mother. K.S. reportedly told Mager that if she sees her mother, her foster mother will get mad. {¶ 64} Mager indicated that she believed these statements by K.S. were credible because they were repeated, unsolicited, over the course of a year. Mager also stated that K.S. had never volunteered anything nice about the foster home, foster mother, or foster sister. {¶ 65} When Mager asked K.S. why she gets angry and pulls her hair out, K.S. replied that she gets angry because Katie, another child in the foster home, tells her what to do. K.S. also admitted to Mager that she wets herself to make her foster mother mad. Mager concluded that K.S. feels frustrated, powerless, and is not happy in the foster home. She believes K.S. would have made more progress if she had a foster parent who was involved in the counseling process. Mager stated that she made that request through caseworker Kostich and in calls made directly to the foster home. {¶ 66} Mager explained that appellant exhibited parenting skills during the joint-counseling sessions. For example, appellant talked to the child about not breaking her glasses in anger again, about listening to her teacher, and handling her feelings if she gets upset with the teacher. Appellant told Mager that if she were to get K.S. back in her home, she would contact the child's teacher to know what she can do to help K.S. in school and improve her behavior. {¶ 67} Mager hypothesized that if K.S.'s behaviors after the joint-counseling sessions were related to seeing her mother, then you might expect that she would not want to see her mother and to have to drag her into the room. To the contrary, K.S. exhibited no anxiety in contact with her mother. In addition, one would expect that the acting out in school would have reduced when visits were terminated, but instead, they were reportedly worse. {¶ 68} Mager stated that despite their separation, K.S. does know her mother, and it would impact the child negatively if her mother were permanently removed from her life. Mager said that if permanent custody were granted to CSB, it would be very difficult for K.S. because it's been an on-again, off-again relationship and she does not understand Mager believed that it would be contrary to the child's best interest to terminate parental rights. {¶ 69} Appellant then testified in her own behalf. She testified that K.S. was not in her care in February 2002 when the child was injured and taken to the hospital. During the period when K.S. was in Snyder's custody, appellant was only permitted to visit two hours weekly. Appellant described her relationship with K.S. at that time as loving, affectionate, and playful. She also said that K.S. obeyed her instructions. {¶ 70} During those visitations, appellant observed Ashley, Snyder's child, taking toys from K.S. and hitting her. Appellant requested more visitation, but it was refused. On Christmas Eve 2002, Snyder refused to let appellant visit any longer, claiming appellant was complicating her life. During the visit on that day, appellant noticed that K.S. was acting strangely and as if she were afraid to talk to her. Shortly thereafter, in January 2003, the maternal grandmother saw K.S. with Snyder at a fast food restaurant where maternal grandmother worked. The left side of K.S.'s face was bruised. The maternal grandmother and the store manager asked how it happened. K.S. said Snyder hit her because K.S. called her Lisa. The store manager reportedly called CSB. {¶ 71} Appellant was notified when K.S. was taken to the hospital in February 2002, but was not allowed to visit her until June or July. In April or May 2002, appellant asked caseworker Kostich to be involved in visitation. On July 12, 2002, her attorney filed a motion to include appellant in counseling and medical appointments. CSB allowed visitation, but no involvement in medical appointments or counseling. However, after five visits, on August 5, 2002, visitation was terminated. {¶ 72} Appellant testified that she took two sets of parenting classes, two sets of anger management classes, and has been married for three and one-half years. Her husband also took parenting classes and anger management classes. Appellant attended all the hearings in this proceeding. {¶ 73} Appellant has three part-time jobs. She works for a temporary agency three days a week, baby-sits six children for relatives in the late afternoons, and works weekend evenings at a seasonal job at Blossom Music Center. The children she baby-sits range in age from four to twelve, and include two who are in "SBH" classes, two with asthma, and one with a learning disability. {¶ 74} Appellant described her current relationship with K.S. as very good and stated that she loves her very much. K.S. calls her "mommy" and calls Mr. Welsh, "daddy." Appellant stated that the counselor posed hypotheticals during the joint-counseling sessions. In regard to discipline, appellant explained that she would use time-outs or remove a toy or privilege. If the child attempted to hurt herself, appellant stated that she would restrain her "in a loving way." She described the activity in the joint-counseling sessions as follows: "We play, we talk, I teach her things, I tell her how to handle her anger, I give her examples. I explain to her slowly and at like her age level so she can comprehend it. * * * She seems to listen and take it all in like she understands it, and when I get done talking to her, I ask her if she understands and I ask her to repeat it back to me to make sure she understands." {¶ 75} Appellant explained that K.S. never hurt herself in her presence. During the first three or four sessions, K.S. would get upset when it was time to clean up and go. Appellant told her that if she goes home and behaves, she will see her again. Appellant testified that she tried to speak to the foster mother once and ask questions, but the foster mother ignored her. {¶ 76} Appellant testified that her daughter seemed excited and happy to have her husband participate with them in the joint-counseling sessions. However, after the second visit, appellant received a letter from caseworker Kostich stating that she was not permitted to have other family members participate. {¶ 77} Appellant stated she understands K.S. is a slow-learner, has speech problems, that there is deterioration in her eyes, and is supposedly abusive to herself, but her goal is to see her child succeed and get on the track of a normal five-year-old. When asked on cross-examination whether she thought K.S. would ever be "normal," appellant replied: "She'll never be physically normal, but she could present herself as an average child, well-behaved. She probably will be able to speak better, read better. I mean, she'll act like a normal child, but she'll still have her mental and physical health that would be taken care of every day." {¶ 78} When visitation was terminated in the present case, appellant asked to have a telephone number or address so that she could communicate with her child, but Kostich told her she was not permitted to have that information. Kostich also refused to provide appellant's phone number to the child or to the foster home. Appellant said that Kostich did not offer to take cards or gifts to the child. {¶ 79} The two sets of parenting classes that appellant attended only briefly addressed special needs children. There is no evidence that CSB referred appellant to any parenting classes that would focus more on the particular needs of this child. Appellant did indicate that she had experience with handicapped children when she attended "SBH" classes. She also helped disabled children when she was in high school. {¶ 80} Appellant said that she has a separate room for the child, as well as furniture for the room. She explained that she has a bed, bed linens, two dressers, a desk, a night stand, and a lamp with a nightlight. Appellant said she would keep the child in her present school and would continue counseling with Gail Mager. {¶ 81} Appellant also has a son, who is in the custody of his father. The father does not permit appellant any visitation and she has no contact with him. The maternal grandmother and appellant's sister also previously had contact with K.S. {¶ 82} Finally, the guardian ad litem addressed the court. He indicated that appellant worked well with the counselor and did everything she could to visit K.S., given her opportunities. The guardian ad litem observed one visitation and noted that K.S. looked like she was enjoying herself. He never saw K.S. act inappropriately in the presence of her mother, act like she was afraid of her, or not be interested in her. {¶ 83} The guardian ad litem did express several concerns, however. The concerns included: (1) it took appellant a long time to find another place to live after her home burned down; (2) she seemed overwhelmed by working part-time and attending counseling once a week; (3) it took her a long time to initiate some of the evaluations; and (4) visitation seemed lacking in interaction — even after two sets of parenting classes. {¶ 84} In response, appellant's attorney pointed out that visitation was suspended by CSB for awhile; that the assessments were delayed because of appellant's motion seeking financial assistance; and that joint-counseling was inconsistent because the foster parents had been uncooperative. {¶ 85} In the end, the guardian ad litem recommended that permanent custody be granted to CSB. However, his opinion relied largely on the foster mother's claim that the behavior of K.S. deteriorated when she started visiting with her mother again, and his understanding that the child's teacher purportedly stated that the child had regressed to her earlier behaviors. {¶ 86} This conclusion therefore rests on uneasy ground. The foster mother testified that the child's behavior was poorafter visits, and Dr. Duby expressed his expert view that misbehavior in anticipation of visits was key to discounting separation as a cause of the child's misbehavior. Also, the child's current teacher testified in the permanent custody hearing that the child's behavior has improved, and not regressed, in recent weeks while joint-counseling sessions have taken place. {¶ 87} This evidence is considered in light of the four parts of the best interest test set forth in R.C. 2151.414(D). 1. The interaction and interrelationship of the child. {¶ 88} Unfortunately, there was a great deal of delay and failure of communication between the parties involved in this case. Many visitations were missed because of the employment of the foster mother and delay in making other arrangements. The caseworker was apparently not aware of appellant's early request to be involved in visitation, school, and medical appointments of her daughter. The counselor and appellant both stated that they requested that the foster mother be involved in joint-counseling sessions, but the foster mother indicated that she never received such a request. {¶ 89} Visitation, which is critical to maintaining and developing relationships, was terminated for reasons which now appear to be ill-conceived. The most significant criticism of the visitations between mother and child is a lack of interaction. Even caseworker Kostich conceded that the lack of visitation limited appellant's ability to interact and develop a relationship with the child. Notwithstanding these difficulties, the mother and child have maintained their relationship. In addition, the child also appears to enjoy her relationship with appellant's husband 2. The wishes of the child. {¶ 90} The child was five and one-half years old at the time of the hearing, but did not directly express her wishes at the proceedings. The guardian ad litem expressed his view that permanent custody was in the best interest of the child. However, as explained above, the guardian ad litem's opinion was based, in large part, on a questionable foundation. 3. The custodial history of the child. {¶ 91} K.S. was born in February 1998. She was placed in the temporary custody of CSB from May 2000 to November 2001, and legal custody was awarded to Liza Snyder in November 2001. Appellant had visitation until Christmas Eve, 2001. In February 2002, CSB regained custody due to abuse in Snyder's home. After a stay in the hospital, K.S. had a brief stay in one foster home, and in May 2002, she was placed in foster care with the Bergers. Visitation with appellant began in June 2002 and was terminated in August 2002. Joint counseling was initiated in April 2003 and the counselor recommended the resumption of additional visitation in September 2003. {¶ 92} This Court has indicated that "the time period in and of itself cannot be held against the parent without considering the reasons for it and the implications that it had on this child." In re Smith (Jan. 2, 2002), 9th Dist. No. 20711. In this case, much of the delay and time spent without visitation can be attributed to CSB and a lack of cooperation by the foster family. Moreover, despite the length of time that the child has been out of the appellant's care, the child continues to be anxious to see her mother, is happy to see her, and inquires when she might be able to live with her mother. The counselor indicated that a bond exists between mother and child, and appellant has stated that she loves the child and wants to be reunited with her. There was no evidence that the separation had any adverse effect on the relationship of the two or on appellant's ability to parent the child. {¶ 93} Moreover, none of the professionals could testify that appellant's visitation was the cause of any of K.S.'s behavioral tantrums. Only Dr. Duby indicated it might be a cause and, in so doing, he relied on the foster mother's supposed information that the child began acting-out the day before, as opposed to onlyafter, visits with the mother. In her testimony to the trial court, Berger clearly indicated that the tantrums occurredafter visits with her mother. This distinction was important to Dr. Duby's reasoning, as explained above. 4. The child's need for a legally secure permanent placement. {¶ 94} Caseworker Kostich stated her belief that permanent custody in CSB is in the best interest of the child, because she needs a stable home and constant monitoring, and because appellant and her husband are not able to provide that. However, Kostich also reported that the current caregiver is not interested in adopting the child and a permanent home has not yet been located. The caseworker admitted that K.S. may be difficult to place because she is a special needs child. {¶ 95} Dr. Duby, the guardian ad litem, and Robert Bell, all expressed the view that permanent custody is in the best interest of the child. However, as explained above, the views of Dr. Duby and the guardian ad litem are based, at least in part, on questionable foundations. Bell's opinion must be considered in light of the fact that he understood CSB to be inviting him to provide an opinion contrary to an opinion which was favorable to appellant. {¶ 96} On the other hand, the clinical counselor who spent the greatest amount of time working with the child and mother, Gail Mager, believed that the termination of parental rights would be harmful to the child. Mager stated that since the child has been participating in joint counseling, she has become happier and finally made progress, that there is a bond between appellant and child, and that appellant exhibited parenting skills during the sessions. In addition, appellant's individual counselor, Sheri Walters, disagreed with the diagnoses of Robert Bell regarding personality disorders. She found appellant to be cooperative, pleasant, and believed that she demonstrated good problem solving skills. {¶ 97} This Court has carefully considered the evidence presented upon the question before us. Cases involving the termination of parental rights are, by nature, difficult and of critical importance. This case is particularly difficult because of the conflicting and — in some cases — problematic — opinions expressed by the witnesses, the needs of the child, and the limited opportunity of appellant to demonstrate her ability to provide care for the child. But the termination of parental rights requires clear and convincing evidence that it is in the best interest of the child. This Court is convinced that such a conclusion has not been sufficiently supported by clear and convincing evidence in the present case. Based upon the record before this Court, this Court concludes that appellant's second assignment of error is sustained. III. {¶ 98} Appellant's first assignment of error is overruled. Her second assignment of error is sustained. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is reversed and the cause remanded. Judgment reversed, and the cause remanded. Baird, J., Slaby, J. concur. 1 It remains unknown who was involved in these injuries to K.S. and no arrests have been made in regard to them. 2 The factor set forth in R.C. 2151.414(D)(5) is not relevant in this case. 3 This is in contrast to the testimony of caseworker Kostich who testified of little emotional interaction between mother and child during the visits she observed. The record does not indicate, however, when those visits took place, whereas, the visitations monitored by Neelon are the most recent visits. 4 A similar attitude — not seemingly directed to a goal of reunification — was reflected by the CSB attorney when she cross-examined Mager. Mager had indicated that she believed her role during joint-counseling was "to facilitate a relationship between mom and the child." The CSB attorney then asked: "Did it ever occur to you that your role may have been to monitor the interaction and not necessarily facilitate?" Mager explained that she did both, monitor and facilitate.

2016-07-06 06:42:30.255905+00

JOURNAL ENTRY and OPINION {¶ 1} Appellant Angel Torres appeals his convictions for three counts of aggravated murder, one count of murder, two counts of aggravated robbery, and four counts of aggravated burglary. He assigns eight errors for our review.1 {¶ 2} Having reviewed the record and pertinent law, we affirm Torres' convictions. The apposite facts follow. {¶ 3} The Cuyahoga County Grand Jury indicted Torres for four counts of aggravated murder, with specifications for mass murder and felony murder, four counts of aggravated robbery, and four counts of aggravated burglary.2 Torres entered a plea of not guilty and the matter proceeded to a jury trial. {¶ 4} Cleveland Police Officer Eric Tammisaar found the bodies of Zaida Rosa, Torres' mother, and her sister-in-law, Angelica Nieves, in Zaida Rosa's home, victims of an apparent homicide. Both women had been stabbed repeatedly. The officer noted the lack of any evidence of a forced entry and the locked doors. The rooms in the house were intact, except Zaida Rosa's room. The officer observed that the deadbolt lock had been forced open. A box of Zaida Rosa's personal checks was on the floor between the bed and dresser. Otherwise, the remaining items were in place; however, the photograph of Zaida Rosa's husband and Torres' father was faced down on the entertainment center. {¶ 5} In the basement, the officer observed forced entry into the storage room. The items contained therein were neatly arranged except one empty space, which to the officer appeared that something had been removed. {¶ 6} After further investigation and speaking with other family members, the officer learned that Torres' father had committed suicide after he had been charged with raping his eleven year-old granddaughter and the accusation from his daughter, Maribel Torres, that he had raped her when she was a child. The officer was told that Torres had resided with his mother until June 4, 2003, and that he had stolen her checks and written fraudulent checks to Wilson Bastita, totaling $10,000. {¶ 7} Maribel Torres informed the police that Torres had been calling her asking for money and she last saw him on August 7, 2003. The last communication with Rosa was initiated by her son on August 10th. Her body was found on August 13, 2003. Maribel Torres told the police that Torres was angry with his mother and that he was very violent. {¶ 8} Torres was arrested, taken to the police station, and "mirandized." Ultimately, Detective Kovach interviewed him about the murders. He denied the murders and surmised that someone broke into the house and killed the victims for money. The detective responded that no one would believe that a burglar would break into the house and then lock the doors upon leaving. {¶ 9} Torres than confessed to the detective. He stated he went with his girlfriend, Susan Zicarelli, to his mother's house on Monday, August 11. They went there to pick up the rest of his belongings. The girlfriend waited in the car. While inside, he blacked out while speaking to his mother. He claimed he had become upset after thinking about how his father had raped his sister and niece, how his mother was blaming the sister for telling the police, and how his mother would not give him any money. He also blamed his mother for not stopping the father from molesting his sister when she was young. He stated, "things just boiled up." He did not want to kill his aunt but did because she "was there." He stated after he killed his mother and his aunt, he went back to the car and left. He said he returned to the house on Tuesday, because it felt like a dream; he thought everybody would be okay. {¶ 10} Torres' statement was reduced to writing. However, after the detective typed the statement, Torres refused to sign it until he communicated with his attorney. Torres than wrote the word, "Gangey" in the upper right hand corner, so that he would know that the statement was his. {¶ 11} Although no blood was found on the clothing retrieved from Susan Zicarelli's house, a drop of blood matching Zaida Rosa's DNA was found on a pair of Torres' tennis shoes. No fingerprints were discovered from the alleged weapons. {¶ 12} After Torres was arrested, Susan Zicarelli was questioned. She told officers that she and Torres had gone to his mother's house on August 11 between 11:00 a.m. and 2:00 p.m. She stated she waited in the car for a half-hour. She was angry because it was hot. She became impatient and knocked on the door and rang the doorbell, but no one responded. Torres then finally exited the house with a box of car detailing equipment and several hundred dollars in cash. {¶ 13} At his trial, several inmates testified against Torres. Eddie Farrell testified that Torres told him he killed his mother and aunt after getting into an argument with his mother. He told Farrell he blacked out and left a pair of scissors imbedded in his mother. He also told him that Susan Zicarelli disposed of the clothing he wore on the date of the murders. {¶ 14} Fabian DeJesus testified he and Torres knew each other from the neighborhood and became friends while in jail. Torres told DeJesus he got into an argument with his mother. His aunt tried to intervene. He tied the women up and then started stabbing his mother with scissors. After killing his mother, he killed his aunt. He told DeJesus that he was initially going to take some checks, but left them because he did not want the murders linked to him. He believed the fact he stole checks before would implicate him. He told DeJesus he burned the clothes that he wore during the murders. {¶ 15} The jury found Torres guilty of two counts of aggravated murder regarding Zaida Rosa, along with the mass murder and felony-murder specifications. The jury found Torres guilty of aggravated murder of Angela Nieves with the mass murder specification, but not guilty of the felony-murder specification. Torres was found not guilty of the second count of aggravated murder against Angela Nieves, but the jury found he was guilty of the lesser included offense of murder. The jury found Torres guilty of two counts of aggravated robbery against Zaida Rosa, but not guilty of the two counts of aggravated robbery against Angela Nieves. He was found guilty of all four counts of aggravated burglary. {¶ 16} After the conclusion of the penalty phase of the trial, the jury rejected the death penalty as punishment. The trial court sentenced Torres to life in prison. Motion to Suppress {¶ 17} In his first assigned error, Torres argues that his statements to the police should have been suppressed because they were obtained without probable cause and without an arrest warrant. We disagree. {¶ 18} The Fourth Amendment to the United States Constitution provides that people are "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, * * * and no Warrants shall issue, but upon probable cause * * *."3 The test for establishing probable cause to arrest without a warrant is whether the facts and circumstances within an officer's knowledge were sufficient to warrant a prudent individual in believing that the defendant had committed or was committing an offense.4 In making this determination, we examine the totality of the facts and circumstances.5 As the United States Supreme Court in Maryland v. Pringle6 stated: "`[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual con-texts — not readily, or even usefully, reduced to a neat set of legal rules.'Gates, 462 U.S., at 232, 76 L.Ed.2d 527, 103 S.Ct. 2317. "The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. See ibid.; Brinegar, 338 U.S. at 175, 93 L.Ed. 1879,69 S.Ct. 1302. We have stated, however, that `[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt,' ibid. (internal quotation marks and citations omitted), and that the belief of guilt must be particularized with respect to the person to be searched or seized, Ybarra v.Illinois, 444 U.S. 85, 91, 62 L.Ed.2d 238, 100 S.Ct. 338 (1979)."7 {¶ 19} In the instant case, multiple factors created probable cause to arrest Torres. No signs of a forced entry existed, and all the doors were locked, indicating the murderer possessed a key to the house and locked the doors as he left. The house was not ransacked, suggesting the killer was familiar with the house. Officers were informed by Torres' siblings that Torres had lived at the home until shortly before the murders. Both Torres' brother and sister strongly believed that Torres was involved in the murders. They both also suspected Torres was into drugs again and needed drug money. {¶ 20} Torres' brother informed the police that Torres had previously stolen checks from his mother and illegally cashed them. The only item out of place at the home was the mother's box of checks. The mother had filed a complaint against Torres regarding his theft of her checks. She also had refused to give Torres any more financial assistance. {¶ 21} Torres' sister informed the police that Torres was verbally abusive to their mother in the past and had a violent nature. Torres had been calling his sister begging for money. Torres told her he was going to rob somebody in order to get the money he needed. According to his sister, Torres was angry with their mother because she would not give him any money. He planned on suing their mother for $10,000, which he had previously given to her to use as a down payment on the house. {¶ 22} All of these facts were known to the officers prior to making the decision to arrest Torres. A police officer may draw inferences based on his own experience in deciding whether probable cause exists.8 These above facts support probable cause that Torres was not only a suspect, but probably the murderer. {¶ 23} Although Torres argues the United States Supreme Court case of Kaupp v. Texas9 controls the instant case, we conclude that it is distinguishable. The Court in Kaupp stated: "The detectives did not seek a conventional arrest warrant, as they did not believe they had probable cause for Kaupp's arrest. See ibid. As the trial court later explained, the detectives had no evidence or motive to corroborate the brother's allegations of Kaupp's involvement."10 {¶ 24} In the instant case, Torres' brother and sister strongly suspected Torres was involved in the murders. Their suspicion was corroborated by the fact the house was not ransacked, was not broken into, and the killer locked the doors as he left. Family members also told officers that Torres' relationship with his mother was strained. Motive was established by the statement of the sister that Torres appeared desperate for money and his mother had recently refused to give him any more financial assistance. Unlike Kaupp, motive was established. Additionally, Torres had access and knowledge of the house; consequently, motive and opportunity served as a basis for probable cause to arrest him. {¶ 25} During oral argument, Torres' attorney argued that pursuant to the United States Supreme Court's decision in Paytonv. New York,11 removing a person from his residence without a warrant, is per se unreasonable unless exigent circumstances existed. However, Payton does not apply where the entry into the home is made with the consent of the occupant.12 At the suppression hearing, Officer Tammisaar testified that a female answered the door and gave the officers permission to enter the home. The daughter of Torres' girlfriend testified that she answered the door, and the officers walked in without permission. At a hearing on a motion to suppress, however, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility.13 We, therefore, defer to the trial court. {¶ 26} Assuming merely for purposes of discussion that the officers did not have consent and entered the house without a warrant in violation of Payton, Torres' written confession is not suppressible under the fruit of the poisonous tree doctrine. Ten years after Payton, the U.S. Supreme Court in New York v.Harris,14 held when the officers have probable cause prior to entering a house, the exclusionary rule would not prevent the prosecution's use of a statement made by a defendant outside his home at the police station. The Court held: "Nothing in the reasoning of that case [Payton v. New York] suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house. There could be no valid claim here that Harris was immune from prosecution because his person was the fruit of an illegal arrest. United States v.Crews, 445 U.S. 463, 474 (1980). Nor is there any claim that the warrantless arrest required the police to release Harris or that Harris could not be immediately rearrested if momentarily released. Because the officers had probable cause to arrest Harris for a crime, Harris was not unlawfully in custody when he was removed to the station house, given Miranda warnings, and allowed to talk. For Fourth Amendment purposes, the legal issue is the same as it would be had the police arrested Harris on his doorstep, illegally entered his home to search for evidence, and later interrogated Harris at the station house. Similarly, if the police had made a warrantless entry into Harris' home, not found him there, but arrested him on the street when he returned, a later statement made by him after proper warnings would no doubt be admissible. {¶ 27} In the instant case, the officers had probable cause to arrest Torres prior to entering the home. This is not a situation where evidence found in the home established the probable cause. Consequently, the officers' continued custody over Torres was not illegal. Accordingly, Torres' first assigned error is overruled. Cross-examination of Detective Kovach {¶ 28} In his second assigned error, Torres claims the trial court erred by restricting his cross-examination of Detective Kovach. Torres' counsel attempted to impeach Detective Kovach's testimony with an unrelated case involving Detective Kovach. In the unrelated case, the defendant recanted his confession. {¶ 29} Trial courts have broad discretion in determining the relevance or irrelevance of evidence.15 We conclude the trial court did not abuse its discretion by not permitting evidence of the unrelated case. In the other case, the defendant confessed to committing the crime. Later, another inmate confessed to committing the same crime, causing the first defendant to recant. However, in this matter, Torres claimed he never confessed. More importantly, he does not argue that Detective Kovach committed any act or procedure that was illegal or improper. Accordingly, Torres' second assigned error is overruled. Deficiency in Indictment/Jury Instructions and Verdict {¶ 30} Assigned errors three and five will be addressed together as they concern Torres' allegation that deficiencies existed in his indictment on the felony-murder counts. Torres contends the indictment for these counts did not contain the essential elements of the principle charges underlying the felony-murder counts, which are, aggravated robbery and aggravated burglary.16 He argues this deficiency in the indictment, and the trial court's related jury instructions and failure to provide jury verdict forms for each underlying offense, permitted the jury to convict him for felony murder based on a less than unanimous verdict because some of the jurors may have found him guilty under aggravated robbery, while others may have found him guilty under aggravated burglary. We disagree. {¶ 31} The Ohio Supreme Court addressed this identical situation in State v. Noling.17 In Noling, the defendant was convicted of two counts of aggravated murder, two counts of aggravated robbery and one count of aggravated burglary. The Court held the outcome would not have been different if the indictment had been worded otherwise because the defendant was separately convicted of both aggravated burglary and aggravated robbery. Therefore, the jury found the elements for both crimes were present. {¶ 32} Likewise, in the instant case, because the jury found Torres guilty of both aggravated robbery and aggravated burglary, no prejudice resulted. Accordingly, Torres' third and fifth assigned errors are overruled. Excluding Testimony of Dr. Richard Offshe {¶ 33} In his fourth assigned error, Torres claims the trial court erred by excluding the testimony of interrogation expert, Dr. Richard Ofshe. The trial court excluded Dr. Ofshe's testimony based on the fact his opinion was irrelevant to the facts of the case. We agree. {¶ 34} Dr. Ofshe specializes in determining the voluntariness of a confession. However, in the instant case, Torres did not claim his confession was involuntary, but claims he never gave a confession and that the detective fabricated his confession. Therefore, Dr. Ofshe's testimony as to whether the confession was voluntary was irrelevant. In fact, Dr. Ofshe even stated he had never previously testified whether a confession was fabricated by a detective. {¶ 35} As we stated, the trial court has broad discretion in determining the exclusion of irrelevant evidence. We conclude the trial court did not abuse its discretion in the instant case. Accordingly, Torres' fourth assigned error is overruled. Ineffective Assistance of Counsel {¶ 36} In his sixth assigned error, Torres argues he did not receive effective assistance of counsel because counsel failed to object to the jury instructions, failed to object to the indictment, and failed to request a continuance so that Marie Cornielas could testify on Torres' behalf. We disagree. {¶ 37} We review a claim of ineffective assistance of counsel under the two-part test set forth in Strickland v.Washington.18 Under Strickland, a reviewing court will not deem counsel's performance ineffective unless a defendant can show his lawyer's performance fell below an objective standard of reasonable representation and that prejudice arose from the lawyer's deficient performance.19 To show prejudice, a defendant must prove that, but for his lawyer's errors, a reasonable probability exists that the result of the proceedings would have been different.20 Judicial scrutiny of a lawyer's performance must be highly deferential.21 {¶ 38} Torres contends his counsel was ineffective for failing to object to the trial court's failure to instruct the jury on the underlying elements of aggravated robbery and aggravated burglary of the felony-murder counts. As we concluded in the fourth assigned error, the trial court's failure to instruct on the elements did not result in prejudicial error. Therefore, counsel was not ineffective for failing to object. {¶ 39} Torres contends counsel was ineffective for failing to request the term "mass murder" be stricken from the indictment and for failing to object to the trial court's use of the term when instructing the jury. The specification set forth in R.C.2929.04(A)(5) has been variously referred to as a "mass murder" specification; a "multiple murder" specification; and "a course of conduct" specification.22 While the term "mass murder" is not found in the statute, the Committee Comment to R.C.2929.04(A)(5) states that one of the aggravating circumstances justifying the imposition of the death penalty is "mass murder." {¶ 40} Regardless of what the R.C. 2929.04(A)(5) specification is called, the use of the term "mass murder" under the circumstances cannot rise to the level of prejudicial error. "Mass murder" arguably suggests the killing of more than one person, a fact that indisputably occurred in this case. We also cannot conclude the jury found Torres guilty of two counts of murder solely because the trial court used the term and the indictment labeled the aggravated murder specification as "mass murder." {¶ 41} Finally, Torres claims counsel was ineffective for failing to request a continuance to allow Marie Cornielas to testify. Cornielas claims to have seen the victims alive on Monday evening, which conflicts with the State's assertion that the victims were murdered earlier in the day. The substance of Cornielas' testimony was testified to by Detective Gajowski when he related that Cornielas told him that she had last seen the victims on Monday evening. Dr. Richard Bux, who testified on behalf of the defense, also stated one of his considerations in determining the time of death was the fact Marie Cornielas contended she saw the victims alive on Monday around 6:00 p.m. {¶ 42} Therefore, because the jury was well aware of the fact Cornielas stated that she saw the victims alive on Monday evening, no prejudice resulted from Cornielas not testifying. Accordingly, Torres' sixth assigned error is overruled. Insufficient Evidence of Prior Calculation and Design {¶ 43} In his seventh assigned error, Torres argues that there was insufficient evidence presented that he committed the murders with prior calculation and design. Torres points to the fact that in his confession, he states he "didn't really mean to hurt my aunt, but she was just there," and, "I did not plan on this happening, it just happened while talking to my mother." The jail house informants also testified that Torres claimed he did not plan the murders. {¶ 44} The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman:23 "Pursuant to Criminal Rule 29(A), 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."24 {¶ 45} Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks,25 in which the Ohio Supreme Court held: "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307,99 S.Ct. 2781, 61 L.Ed.2d 560, followed.)" {¶ 46} Prior calculation and design requires something more than instantaneous deliberation.26 However, prior calculation and design can be found even when the killer quickly conceived and executed the plan to kill "within a few minutes."27 It is not required that a prolonged thought process be present. There is no bright line test to determine whether prior calculation and design are present, rather each case must be decided on a case-by-case basis.28 {¶ 47} While Torres argues that the State failed to prove that this was anything more than an argument that turned violent, we conclude the jury could find prior calculation and design, necessary for an aggravated murder conviction, based on the protracted nature of the murders.29 Three different weapons were used in committing the murders: a kitchen knife, sewing scissors, and an iron. This indicates some foresight in killing the victims. Rosa suffered a total of thirty-seven stab wounds, along with blunt force trauma to the head, and a fractured skull. Nieves suffered a total of twenty-one stab wounds, blunt force trauma, and a fractured jaw. Dr. Bux, who testified on behalf of the defense, estimated the assault took five-to-ten minutes. {¶ 48} The evidence also indicates that Torres was in desperate need of money. For several months, he stole and forged checks that were his mother's. His mother recently refused to give him any more financial help. Torres, therefore, had a motive to kill his mother in order to obtain money. He took cash, and other belongings, which he later tried to sell. Thus, based on the protracted nature of the murders, the use of several weapons, the fact there were two victims, and Torres' motive to kill to obtain money, we conclude, there was sufficient evidence presented of prior calculation and design. Accordingly, Torres' seventh assigned error is overruled. Penalty Phase {¶ 49} In his eighth assigned error, Torres contends the trial court erred by not permitting Marie Cornielas to testify as to residual doubt during the penalty phase. {¶ 50} The Ohio Supreme Court in Ohio v. McGuire30 held that residual doubt is not an acceptable mitigating factor under R.C. 2929.04(B), because it is irrelevant to the issue of whether the defendant should be sentenced to death. Torres claims that the Court's holding in McGuire is unconstitutional. We disagree. {¶ 51} While this appeal was pending, the United States Supreme Court in Oregon v. Guzek31 addressed whether the states can exclude residual doubt evidence during the penalty phase of a capital case. The Court held: "The Constitution does not prohibit a State from limiting the innocence-related evidence a capital defendant can introduce at a sentencing proceeding to the evidence introduced at the original trial. This Court's cases have not interpreted theEighth Amendment as providing such a defendant the right to introduce at sentencing evidence designed to cast `residual doubt' on his guilt of the basic crime of conviction. Franklin v. Lynaugh,487 U.S. 164, 173, n. 6, 108 S.Ct. 2320, 101 L.Ed.2d 155 (plurality opinion). Lockett v. Ohio, supra, 438 U.S. 586,98 S.Ct. 2954, 57 L.Ed.2d 973, and Green v. Georgia, supra,442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738, distinguished. Even if such a right existed, it could not extend so far as to provide Guzek with a right to introduce the evidence at issue. TheEighth Amendment insists upon `reliability in the determination that death is the appropriate punishment in a specific case, `Penryv. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256, and that a sentencing jury be able `to consider and give effect to mitigating evidence' about the defendant's `character or record or the circumstances of the offense,' id., at 327-328,109 S.Ct. 2934, 106 L.Ed.2d 256, but it does not deprive the State of its authority to set reasonable limits on the evidence a defendant can submit, and to control the manner in which it is submitted."32 {¶ 52} The United States Supreme Court has found capital defendants do not have a constitutional right to present residual doubt evidence during the penalty phase. Therefore, the Ohio Supreme Court's holding in McGuire is constitutional. Thus, the trial court did not err by excluding residual doubt testimony from Marie Cornielas during the penalty phase of the trial. Accordingly, Torres' eighth assigned error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. 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. Celebrezze, Jr. P.J., and MCMonagle, J., concur. APPENDIX Assignments of Error "I. The trial judge erred in overruling a defense motion to suppress statements obtained as the result of an improper warrantless arrest of the appellant in his residence." "II. The trial court erred by unduly restricting the defense cross-examination of Detective Denise Kovach." "III. The court erred by failing to dismiss counts three and four, aggravated murder pursuant to R.C. 2903.01(B) on the basis of a void or voidable indictment." "IV. The trial court denied the appellant his right of compulsory process and right to present a defense by precluding the testimony of Dr. Richard Ofshe." "V. The trial court's erroneous culpability phase jury instructions denied the appellant his federal due process rights to a fair trial." "VI. The failure to object to erroneous culpability phase jury instructions denied the appellant his right to effective assistance of counsel." "VII. The evidence is insufficient to sustain a conviction for the element of prior calculation and design." "VIII. The trial court erred by precluding the testimony of a defense witness to testify in the penalty phase of trial because the testimony related to the issue of residual doubt and by refusing to instruct the jury that it could consider such as mitigation." 1 See Appendix. 2 The Grand Jury also indicted Torres on one count each for theft, forgery, and uttering. However, because these counts arose out of Torres' theft and subsequent forgery of Zaida Rosa's checks approximately one month prior to the murders, they were severed and tried to the bench after the trial concluded. The trial court found Torres guilty of these remaining counts. 3 Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 225,13 L.Ed.2d 142. 4 Id. 5 State v. Homan, 89 Ohio St.3d 421, 427, 2000-Ohio-212. 6 (2003), 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769. 7 Id. at 371. 8 See, e.g., United States v. Ortiz (1975), 422 U.S. 891,897, 95 S.Ct. 2585, 2589, 45 L.Ed.2d 623. 9 (2003), 538 U.S. 626, 123 S.Ct. 1842, 155 L.Ed.2d 814. 10 Id. at 628. 11 (1980), 445 U.S. 573. 12 New York v. Harris (1990), 494 U.S. 14; State v.Thompson (1987), 33 Ohio St.3d 1, 19; State v. Gibson,164 Ohio App.3d 558, 2005-Ohio-6380; State v. Palinkas, Cuyahoga App. No. 86247, 2006-Ohio-2083 at ¶ 8. 13 State v. Mills (1992), 62 Ohio St.3d 357; State v.Curry (1994), 95 Ohio App.3d 93. 14 (1990), 495 U.S. 14. 15 State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus; State v. Hymore (1967), 9 Ohio St.2d 122,128. 16 We note the jury found Torres not guilty of felony murder as to count four. Therefore, Torres' argument as applies to this count is moot. 17 98 Ohio St.3d 44, 2002-Ohio-7044. 18 (1984), 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052. 19 State v. Bradley (1989), 42 Ohio St.3d 136, paragraph one of syllabus. 20 Id. at paragraph two of syllabus. 21 State v. Sallie (1998), 81 Ohio St.3d 673, 674. 22 State v. Gregley (Dec. 16, 1999), Cuyahoga App. No. 75032. 23 (1978), 55 Ohio St.2d 261, syllabus. 24 See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19,23; State v. Davis (1988), 49 Ohio App.3d 109, 113. 25 (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. 26 State v. Cotton (1978), 56 Ohio St.2d 8, paragraph two of the syllabus. 27 State v. Coley, 93 Ohio St.3d 253, 264, 2001-Ohio-1340, citing State v. Palmer, 80 Ohio St.3d 543, 567-568, 1997-Ohio-312. 28 State v. Taylor, 78 Ohio St.3d 15, 1997-Ohio-243; Legislative Service Commission Comment to R.C. 2903.01. 29 State v. Allen, 73 Ohio St.3d 626, 1995-Ohio-283. 30 (1997), 80 Ohio St.3d 390. 31 (2006), ___ U.S. ___, 126 S.Ct. 1226, 163 L.Ed.2d 1112. 32 Id. at syllabus, paragraph two.

2016-07-06 06:42:25.943339+00

Strausbaugh

Plaintiff-appellant, Bruce Boster, appeals the judgment of the Franklin County Municipal Court overruling plaintiff's Civ.R. 60(B) motion. Plaintiff sets forth the following two assignments or error: "1. The trial court committed prejudicial error and abused its discretion when it failed to sustain appellant's motion for Rule 60(B) relief. "2. The trial court committed prejudicial error and abused its discretion when it failed to hold a hering [sic] prior to ruling on appellant's Rule 60(B) motion." The record indicates that on November 12, 1991, plaintiff filed an action against defendants alleging that defendants violated Sections 1692c, 1692e, 1692g, Title 15, U.S. Code of the Fair Debt Collection Practices Act. On December 5, 1991, defendants filed an answer to plaintiff's complaint. The parties thereafter engaged in discovery and settlement negotiations. Plaintiff's counsel allegedly advised defendants' counsel that no settlement could be reached if defendants had placed plaintiff's account with any credit reporting agency or service. Defendants' counsel, in a letter dated January 28, 1992, indicated that defendants assured him that they did not contact any credit rating or reporting service. This same response was later restated in answer to an interrogatory of plaintiff. Thereafter, plaintiff and defendants entered into an agreement releasing each other, and the case was dismissed with prejudice on June 4, 1992. On March 22, 1993, plaintiff filed a motion under Civ.R. 60(B) for an order setting aside the dismissal entry previously filed and the mutual release and *Page 525 settlement agreement, claiming by affidavit that he had learned that his account had been placed with a credit bureau and that he would not have settled the case had he known of this fact beforehand. Plaintiff did not attach a credit report to his motion or affidavit or offer any fact showing that defendants were involved in reporting him to a credit bureau, nor did plaintiff request a hearing on the motion for relief from judgment. Thereafter, on April 1, 1993, the trial court issued an entry overruling plaintiff's motion for relief from judgment. It is from that judgment that plaintiff now appeals. Civ.R. 60(B) provides a mechanism whereby a party may be relieved from the judgment or order of the court if certain circumstances are present. This rule provides: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a finaljudgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. * * *" (Emphasis added.) In the present case, the parties entered into a settlement agreement. The only entry put on by the court was an entry dismissing the case at the parties' request. Therefore, the court's only function was to dismiss the case for the record. Although this issue was not expressly decided in Bond v.BancOhio Natl. Bank (Aug. 27, 1992), Franklin App. No. 92AP-536, unreported, 1992 WL 214351, this court stated in Bond that: "It is highly questionable that Civ.R. 60(B) can be used to obtain relief from a judgment based upon a settlement agreement entered into by the parties to the action. The settlement agreement terminates the rights that parties may have and the judgment entry of the trial court ordinarily only clears up the court records. * * *" Id. at 3. In Bolen v. Young (1982), 8 Ohio App. 3d 36, 8 OBR 39,455 N.E.2d 1316, this court held that if a settlement agreement is extrajudicial, in that the trial judge is advised of the settlement agreement but does not know the content thereof, then the settlement agreement can be enforced only if the parties are found to have entered into a binding contract. Relief may be sought through the *Page 526 filing of an independent action sounding in breach of contract, or it may be sought in the same action through a supplemental pleading filed pursuant to Civ.R. 15(E), setting out the alleged agreement and breach. Id. at syllabus. Consistent with Bond and Bolen, this court finds that a settlement agreement differs from a judgment, decision or order entered by the court and, consequently, Civ.R. 60(B) is not the proper vehicle to rescind a settlement agreement. Therefore, plaintiff's first assignment of error is overruled. By his second assignment of error, plaintiff argues that the trial court abused its discretion by failing to hold a hearing prior to ruling on plaintiff's motion to vacate the judgment. Plaintiff's contention is without merit. A person filing a motion for relief from judgment under Civ.R. 60(B) is not automatically entitled to such relief nor is he automatically entitled to a hearing on the motion in all circumstances. The movant must show that he is entitled to a hearing. Therefore, he must make allegations in his motion which demonstrate the timeliness of the motion, the reasons why the motion should be granted and that he has a meritorious defense.Adomeit v. Baltimore (1974), 39 Ohio App. 2d 97, 103, 68 O.O.2d 251, 254, 316 N.E.2d 469, 475. It is an abuse of discretion for a trial court to overrule a Civ.R. 60(B) motion for relief from judgment without first holding an evidentiary hearing only if the motion or supportive affidavits contain allegations of operative facts which would warrant relief under Civ.R. 60(B). Bachman v.Ramsey (Jan. 22, 1991), Franklin App. No. 90AP-896, unreported, 1991 WL 7270. Since plaintiff did not meet this burden with respect to the dismissal, but instead seeks to set aside a settlement agreement, the trial court did not abuse its discretion in failing to provide an evidentiary hearing prior to overruling plaintiff's Civ.R. 60(B) motion. For the foregoing reasons, plaintiff's assignments of error are overruled, and the judgment of the Franklin County Municipal Court is affirmed. Judgment affirmed. WHITESIDE, P.J., and BOWMAN, J., concur. DEAN STRAUSBAUGH, J., retired, of the Tenth Appellate District, was assigned to active duty under authority of Section6(C), Article IV, Ohio Constitution. *Page 527

2016-07-06 06:42:25.976085+00

Houck

This case is here on a petition in error from the common pleas court of Knox county, Ohio. Error is predicated on the overruling of a motion to discharge an attachment, issued out of the court of George S. Harter, a justice of the peace in and for Clinton township, Knox county, Ohio, against Carlo Casci and one F. Di Piero. The justice of the peace overruled the motion, and an appeal was taken to the common pleas court, under favor of Section 10259, General Code of Ohio, and the same was heard on the evidence, as appears by more than 50 pages of typewritten testimony set forth in the bill of exceptions filed herein. Question: Did the common pleas court err in overruling the motion to discharge said attachment? The plaintiff in error seeks a reversal of the judgment entered in the common pleas court, for the following reasons: (1) That the judgment is against the manifest weight of the evidence; (2) that the property sought to be attached is exempt from execution as against the plaintiff in error. The grounds of attachment in the affidavit were that the defendants have assigned, removed, and *Page 290 disposed of a part of their property, and are about to dispose of all of said property, with intent to defraud their creditors. The affidavit further set forth that the property sought to be attached was not exempt from execution. The two questions here raised are questions of fact: namely, were the defendants disposing of their property to defraud their creditors; and, second, was the property sought to be attached exempt from execution? These charges were denied by the plaintiff in error by affidavit duly filed by him. This having been done, the burden rested with the defendant in error to establish the truthfulness of the allegations in the affidavit of attachment by that degree of proof required by the rules of law applicable thereto. We have read all of the evidence offered in the trial, and, while it is somewhat conflicting, yet we are not able to say that it is not sufficient to sustain the allegations of fraud, and that under the facts and law the property levied upon is not exempt from execution. The question whether or not the partnership between Casci and Di Piero was, at the time of such levy in attachment, in existence, and the question whether or not the partnership was dissolved in good faith prior to the levying of said attachment, and the question whether the dissolution of said partnership was done for the purpose of defrauding Evans as one of its creditors, were for the determination of the trial judge under all the circumstances and facts in the case, as shown by the evidence. While there is some conflict in the evidence, we *Page 291 find that the weight of same is clearly with the defendant in error. We must adhere to the rule of law laid down in the case ofLoney v. Hall, 8 Ohio App. 154, 28 O.C.A., 14, 29 O.C.D., 453. The first proposition of the syllabus reads: "The judgment of a trial judge who has passed upon the sufficiency and weight of the evidence will not be disturbed, where the evidence is such that different minds might reach different conclusions." It is urged that Casci, the purchasing partner, is entitled to the attached property, as an exemption, for the reasons that he is a resident of Ohio, the head of a family, and without a homestead, and, to sustain that claim, counsel for plaintiff in error relies upon the case of Mortley v. Flanagan, 38 Ohio St. 401, the syllabus of which reads: "Where the members of a firm, acting in good faith, dissolve the partnership, and one member sells his interest in the partnership property to the other, the latter will not be deprived of the right to hold such property exempt from the payment of a debt thereafter asserted against him, on the ground that such debt was a partnership debt due at the time of the dissolution; nor will the fact that the partners knew the firm to be insolvent, at the time of such dissolution, make any difference." A careful reading of the testimony of Casci clearly discloses that he did not act in good faith, and that the transactions between him and the others interested in the property attached were not consonant with his claim of good faith, but, *Page 292 upon the other hand, we find and hold that they were, in fact and law, such as to constitute a fraud upon the rights of the defendant in error Evans. It therefore follows that Casci does not come within the rule applicable to purchasing partners, in good faith and without fraud, and the case of Mortley v.Flanagan, supra, does not apply. Having read all the testimony and examined all of the exhibits as contained in the bill of exceptions now before us, we find, under the facts and law governing same, that the judgment of the common pleas court is right, and should be affirmed. Judgment affirmed and cause remanded. SHIELDS and PATTERSON, JJ., concur.

2016-07-06 06:42:26.245721+00

Richards

This action was commenced by Clarence E. Ogden for the purpose of recovering $9,200, the value of an airplane which he claimed to have stored with the defendant as a bailment, and which was never returned to him. The trial resulted in a verdict and judgment in favor of the defendant. While the facts and the law in this case are not complicated, the case has some novel aspects in that it involves the destruction of an airplane, resulting in the loss of the life of the pilot, who, if living, would be a material witness, and the subsequent death, by accident, of another pilot, who also, if living, would have been a material witness. The facts, so far as necessary to understand the issues, are as follows: The plane involved in this action was an International Aircraft plane, equipped with a Wright Whirlwind motor, owned by the plaintiff, and had been driven for him by Harold A. Speer, an experienced operator, from Cincinnati to Jackson, Michigan, on business. His return flight on January *Page 303 13, 1929, was by way of Toledo. The weather was very cold, evidently below zero, and as he approached Toledo he discovered that the oil in the pipes was congealing and that it was not safe to continue his flight. He therefore landed at the Toledo airport of the defendant company about noon on January 13th, and his plane was taken inside the hangar with the assistance of Ted Hay, who was about the hangar. In an attempt to remedy the difficulty, they wrapped felt about the pipes and oil tank. Hay sold Speer fifteen gallons of gasoline and four gallons of oil for the plane and rendered him a bill therefor on the printed blank of the defendant company, showing that Speer was indebted to the company for the amount of the bill, which was signed The Transcontinental Airport of Toledo by T.W. Hay. Later in the day Speer undertook to continue his journey to Cincinnati, but after proceeding some fifteen miles he had the same difficulty with congealing oil and returned to the airport of the defendant. He inquired of Mr. Van Buren, now deceased, and who appears to have been assistant manager of the airport, regarding the storage rate for a plane, and was told that it would be $1.50 per night. Speer stayed in Toledo overnight and discovered on the following morning that the unfavorable weather conditions still continued. He stated that he had to be in Cincinnati on Tuesday to attend a directors' meeting, and was informed that on Wednesday morning 40,000 pounds of mail was to be transported from the airport for the Willys-Overland Company, by airplane, and that many planes would be at the airport that morning. Speer testified that he told assistant manager Van *Page 304 Buren that he would leave the ship there and catch a train, that he had talked to Mr. Hay, who had agreed to fly the ship to Cincinnati for him Thursday, provided he, Speer, could not return, and that he instructed Van Buren that he would call him on the phone Wednesday night as to whether he would have Hay fly the plane to Cincinnati, if he himself could not get back. Speer further testified that he explained to Van Buren that it was necessary that he, Speer, "get permission from Mr. Ogden." The plane was accordingly left in the hangar of the defendant and Speer returned to Cincinnati on Monday, the 14th. Speer did not communicate with Ogden, who was in California, and did not phone Van Buren, or anybody else representing the defendant. The plane was totally destroyed Wednesday morning, January 16th, the evidence tending to show that the destruction occurred under the following circumstances: There was a low-lying, heavy fog that morning, and airplanes arriving at the time the large shipment of mail was to be made appeared to have difficulty in finding the airport on account of the fog. Gabriel C. Harman, who was, in January, 1929, manager of the airport for the defendant, testified as follows: "Mr. Hay volunteered to assist these pilots looking for the field, in locating the field, by going up and piloting them into the field, which, of course, he was much better acquainted with than any of the others. He came out into the hangar and asked me to assist him in starting the plane, which I did. In starting the motor of the plane. He opened the doors of the hangar, rolled the ship out with our own hands, but *Page 305 not with the power of the plane, put jacks under the wheels, and Mr. Hay got in the pilot's seat and I started the motor for him. After two or three minutes, when the ship had received its — the oil had become properly warmed, and the ship's motor was functioning properly, someone came up to us and said that the planes had found the field, and that it would not be necessary for him to go up on this mission. I made a special effort to go to Mr. Hay, who was seated in the ship, and he did not hear these reports, by reason of the noise of the motor, to advise him that it would not be necessary to make this flight. He said that, in view of the fact, that he was planning to return the ship to Cincinnati some time that week, and that there had been oil line trouble encountered by Mr. Speer in coming to the field, that he thought this would be a good time to test out the motor to see if it were functioning properly before he took off to return the ship to Cincinnati. Realizing that he had had conversation with Mr. Speer, who was the pilot of the plane, I offered no objection to him taking off in the plane, because the weather then was clearing sufficiently to enable flying operations off the field, which had been prohibited by weather, prior to that time." Hay accordingly flew the plane, and within a few minutes it appears to have taken a nose dive on the field and was totally destroyed, and Mr. Hay instantly killed. The answer, in addition to a general denial, sets out two defenses, one being that the transaction was not a bailment, and the other that the plane was demolished without any fault or negligence on the part of the defendant. *Page 306 This court is of the opinion that the undisputed evidence shows, as a matter of law, that the transaction constituted a bailment of the plane to the defendant. Harman, who was manager of the airport for the defendant, testified that the plane was in the hangar in his charge, and the defendant seems to have moved the plane about in the hangar as occasion required. The circumstances disclose the same relation as is constantly created when automobiles are stored in a garage overnight for a compensation. Being a bailee, the defendant owed to the plaintiff the ordinary duty cast on a bailee which is as stated in 5 Ohio Jurisprudence, 108, Section 19, to exercise ordinary care and diligence in protecting and keeping safely the thing bailed. The defendant being, under the undisputed evidence, a bailee as a matter of law, the trial court erred to the prejudice of the plaintiff in the general charge in submitting that issue to the jury. The other issue is the claim that the plane was destroyed without fault on the part of the defendant. This issue raises a question as to the authority of Speer and the agency of Hay. Speer testified that he made arrangements for the storage of the plane with Van Buren, assistant manager of the defendant, and informed Van Buren that he, Speer, must get authority from Ogden, the owner, before allowing anybody to fly the plane. If Speer made this statement to Van Buren, and if Van Buren was assistant manager, and directly or impliedly authorized on behalf of the defendant to represent it in this matter, then the statement which Speer made to Van Buren would be notice to the defendant of the limitation of authority possessed by Speer, and if the *Page 307 defendant had knowledge of such limitation of authority there would be no justification for it to rely on the apparent authority, if any, which Speer would have by reason of being in possession of the plane. If the defendant had knowledge of this limitation, it had no right to allow anybody to fly the plane except the owner or Speer. Harman's own testimony might justify the inference that in permitting Hay to take the plane without objection he relied on the mere fact that he had seen him talking with Speer. After a careful reading of the evidence, we are satisfied that the verdict and judgment for the defendant are manifestly against the weight of the evidence. Some alleged errors arise on the admission of evidence, particularly relating to the logbooks kept by Ted Hay and by the defendant. These logbooks were admitted in evidence over the exception of the plaintiff. Speer in his testimony could not recall whether he had been at the airport before January 13th, or whether Hay had been up in the plane, and denied having a passenger when he landed January 13th. Hay's logbook showed that he had flown the plane on December 29, 1928. The record contained in the logbook not being in entire accordance with the testimony of Speer, it would not be prejudicial error to receive it in evidence as bearing upon his credibility and accuracy. Hay was an experienced, licensed operator of aircraft, and the regulations adopted by the Department of Commerce of the United States require every such operator to keep a navigation and engine logbook. This logbook appears to have been kept in accordance with the requirements of the regulations, and was therefore an *Page 308 official record of the matters required to be recorded therein. We think courts may take judicial notice of the rules and regulations of federal executive departments. 23 Corpus Juris, 99; Boone v. State, 109 Ohio St. 1, 141 N.E. 841. In this latter case the Supreme Court held that the courts of the state will take judicial notice of regulations made by the commissioner of prohibition and issued by the United States Treasury Department. Generally speaking, it would be good practice and a convenience to the courts to read into the record or attach thereto anything of which a court is expected to take judicial notice. In the case under consideration the trial court admitted these logbooks in evidence, and as everything will be presumed in favor of the regularity of the action of the court this court will assume that the trial court did in fact take judicial knowledge of the regulations of the Department of Commerce relating to logbooks. While these items of evidence do not appear to be of great importance on the issues involved in the case, we find no prejudicial error in receiving them in evidence. We have not considered any objections to special instructions given to the jury, as no exceptions were lodged thereto. For the reasons given the judgment will be reversed and the cause remanded for a new trial. Reversed and remanded. WILLIAMS and LLOYD, JJ., concur. *Page 309