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2016-07-06 06:36:46.17289+00

OPINION {¶ 1} Defendant-appellant Douglas Stillman appeals the judgment entry of the Fairfield County Court of Common Pleas dismissing his petition for post-conviction relief. Plaintiff-appellee is the State of Ohio. {¶ 2} On April 4, 2003 appellant was indicted by the Fairfield County Grand Jury in Case No. 03CR97 on one count of Domestic Violence a felony of the fifth degree in violation of R.C. 2919.25 (A). On May 6, 2003 a Bill of Information was filed in Case No. 03CR134 charging the appellant with one count of Intimidation of Victim/Witness a felony of the third degree in violation of R.C. 2921.04 (B). {¶ 3} On May 7, 2003 appellant pled guilty to both charges. He waived his right to a separate sentencing hearing. The trial court sentenced appellant to a term of nine months on the Domestic Violence count and a sentence of one year on the Intimidation of a Victim/Witness charge. The sentences were to be served consecutively. On July 10, 2003 appellant was granted judicial release and he was placed on community control sanctions. {¶ 4} On December 5, 2003 appellant was indicted in Delaware County on two counts of attempted murder, felonious assault, two counts of rape, and three counts of kidnapping. On January 23, 2004 the appellant was indicted for Tampering with Evidence and Intimidation of a Witness. On May 14, 2004, the Delaware County Prosecuting Attorney's Office filed a Bill of Information charging appellant with Domestic Violence. Prior to trial the State dismissed one count of rape and one count of kidnapping. The cases were joined and appellant was found guilty after a jury trial of felonious assault, rape, two counts of kidnapping, tampering with evidence, intimidation of a witness, and domestic violence. {¶ 5} By judgment entry filed June 29, 2004 the trial court sentenced appellant to eight years on the felonious assault, six years on the rape, five years on the kidnapping, four years on the tampering with evidence, six months on the intimidation of a witness or victim and twelve months on the domestic violence. The eight year sentence on the felonious assault and the four year sentence on the tampering with evidence were ordered to be served consecutively for a total of twelve years. The remaining sentences were ordered to be served concurrently to each other and to the twelve year sentence. {¶ 6} On December 20, 2004 this court affirmed appellant's convictions and sentences in Delaware County. See State v. Stillman, Delaware App. No. 04CAA07052, 2004-Ohio-6974. {¶ 7} On October 12, 2004 in Fairfield County Court of Common Pleas Case Nos. 03CR97 and 03CR134 appellant's community control was revoked and the trial court ordered appellant to serve his original sentences consecutive to the sentence appellant received in Delaware County. {¶ 8} On April 6, 2005 appellant filed a petition for post-conviction relief. On May 11, 2005 the trial court overruled appellant's petition for post-conviction relief without findings of fact and conclusions of law. On May 20, 2005 appellant filed a motion requesting the trial court issue findings of fact and conclusions of law. Also on May 20, 2005, appellant filed a Motion to Reconsider the trial court's overruling of his petition. On June 2, 2005, appellant filed his Notice of Appeal with this court. On June 21, 2005, the trial court filed a judgment entry overruling appellant's petition which contained Findings of Facts and Conclusions of Law. {¶ 9} Appellant filed his appeal from the denial of his Petition to Vacate or Set Aside Sentence in this court and has set forth the following six assignments of error: {¶ 10} "I. THE TRIAL COURT ERRED WHEN IT ORDERED THE PROSECUTION TO SUBMIT FINDING OF FACTS AND CONCLUSION OF LAW AND DENIED APPELLANT AN IMPARTIAL JUDGE VIOLATING THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION. {¶ 11} "II. THE TRIAL COURT ERRED WHEN IT PROMISED APPELLANT FINDING OF FACTS AND CONCLUSION OF LAW BY JUNE 15, 2005 AND NEVER PROVIDED THEM TO APPELLANT AT PROMISED DATE INJURING APPELLANT'S FUTURE APPEAL. {¶ 12} "III. THE TRIAL COURT ERRED WHEN IT SET A DATE OF JUNE 17, 2005 TO DECIDE APPELLANT'S MOTION FOR RECONSIDERATION, THEN REFUSED TO MAKE THAT DECISION AFTER REALIZING STRUCTURAL ERROR OF ORDERING PROSECUTOR TO MAKE FINDING OF FACTS AND CONCLUSION OF LAW HOPING APPELLANT WOULD DEFAULT VIOLATING 5TH, 6TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION. {¶ 13} "IV. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO NON-MINIMUM SENTENCES BASED ON FACTS NOT FOUND BY THE JURY OR ADMITTED BY APPELLANT IN A PLEA AGREEMENT PURSUANT TO BLAKELY V. WASHINGTON AND UNITED STATES V. BOOKER. {¶ 14} "V. THE TRIAL COURT'S SENTENCING OF APPELLANT TO CONSECUTIVE SENTENCES ON THE DOMESTIC VIOLENCE AND INTIMIDATION OF A WITNESS BASED ON FACTS NOT FOUND BY A JURY OR ADMITTED BY APPELLANT PURSUANT TO BLAKELY V. WASHINGTON AND UNITED STATES V. BOOKER IS UNCONSTITUTIONAL. {¶ 15} "VI. THE TRIAL COURT ERRED WHEN THEY DENIED APPELLANT AN EVIDENTIARY HEARING." Standard of Review {¶ 16} R.C. 2953.21(A) states, in part, as follows: "(1) Any person who has been convicted of a criminal offense or adjudicated a delinquent child 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". {¶ 17} A post conviction proceeding is a collateral civil attack on a criminal conviction. State v. Calhoun (1999), 86 Ohio St. 3d 279, 281,714 N.E.2d 905; State v. Phillips, 9th Dist. No. 20692, 2002-Ohio-823. In order to obtain post conviction relief, a petitioner must show 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 [.]" R.C. 2953.21; State v. Watson (1998), 126 Ohio App. 3d 316, 323, 710 N.E.2d 340. {¶ 18} Under R.C. 2953.21, a petitioner seeking post conviction relief is not automatically entitled to an evidentiary hearing. Calhoun,86 Ohio St.3d at 282, 714 N.E.2d 905. Significantly, the Ohio Supreme Court has held that proper basis for dismissing a petition for post conviction relief without holding an evidentiary hearing include: 1) the failure of the petitioner to set forth sufficient operative facts to establish substantive grounds for relief, and 2) the operation of resjudicata to bar the constitutional claims raised in the petition.Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; State v. Lentz (1994), 70 Ohio St. 3d 527, 530, 639 N.E.2d 784. {¶ 19} R.C. 2953.21 does not expressly mandate a hearing for every post-conviction relief petition; therefore, a hearing is not automatically required. In determining whether a hearing is required, the Ohio Supreme Court in State v. Jackson (1980), 64 Ohio St. 2d 107, stated the pivotal concern is whether there are substantive grounds for relief which would warrant a hearing based upon the petition, the supporting affidavits, and the files and records of the case. {¶ 20} As the Supreme Court further explained in Jackson, supra, "[b]road assertions without a further demonstration of prejudice do not warrant a hearing for all post-conviction relief petitions." Id. at 111. Rather, a petitioner must submit evidentiary documents containing sufficient operative facts to support his claim before an evidentiary hearing will be granted. Accordingly, "a trial court properly denies a defendant's petition for post conviction relief without holding an evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief." Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; see R.C. 2953.21(C). {¶ 21} Another proper basis upon which to deny a petition for post conviction relief without holding an evidentiary hearing is res judicata. Lentz, 70 Ohio St.3d at 530; State v. Phillips, supra. {¶ 22} 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 that 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 of conviction, or on an appeal from that judgment. Statev. Szefcyk (1996), 77 Ohio St. 3d 93, 671 N.E.2d 233, syllabus, approving and following State v. Perry (1967), 10 Ohio St. 2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. It is well-settled that, "pursuant to resjudicata, a defendant cannot raise an issue in a [petition] for post conviction relief if he or she could have raised the issue on direct appeal." State v. Reynolds (1997), 79 Ohio St. 3d 158, 161, 679 N.E.2d 1131. Accordingly, "[t]o survive preclusion by res judicata, a petitioner must produce new evidence that would render the judgment void or voidable and must also show that he could not have appealed the claim based upon information contained in the original record." State v. Nemchik (Mar. 8, 2000), Lorain App. No. 98CA007279, unreported, at 3; see, also, State v.Ferko (Oct. 3, 2001), Summit App. No. 20608, unreported, at 5; State v.Phillips, supra. {¶ 23} In State v. Phillips, supra, the court noted "[s]ignificantly, evidence outside the record alone will not guarantee the right to an evidentiary hearing. State v. Combs (1994), 100 Ohio App. 3d 90, 97,652 N.E.2d 205. Such evidence `must meet some threshold standard of cogency; otherwise it would be too easy to defeat the holding of [Statev. Perry (1967), 10 Ohio St. 2d 175] 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.' (Citation omitted.) State v. Lawson (1995),103 Ohio App. 3d 307, 315, 659 N.E.2d 362. Thus, the evidence must not be merely cumulative of or alternative to evidence presented at trial".Combs, 100 Ohio App.3d at 98, 652 N.E.2d 205. I. {¶ 24} In his First Assignment of Error appellant maintains that the trial court erred when it relied upon the proposed findings of fact and conclusions of law prepared by the State. We disagree. {¶ 25} Civ.R. 52 states that it is within the trial court's "discretion" to "require any or all of the parties to submit proposed findings of fact and conclusions of law." {¶ 26} In Anderson v. City of Bessemer(1985), 470 U.S. 564,105 S. Ct. 1504, the United States Supreme Court noted "[w]e, too, have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record. See, e.g., United States v. El Paso Natural Gas Co., 376 U.S. 651,656-657, 84 S. Ct. 1044, 1047-1048, 12 L. Ed. 2d 12 (1964); United States v.Marine Bancorporation, 418 U.S. 602, 615, n. 13, 94 S. Ct. 2856, 2866, n. 13, 41 L. Ed. 2d 978 (1974). We are also aware of the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor. See J. Wright, The Nonjury Trial — Preparing Findings of Fact, Conclusions of Law, and Opinions, Seminars for Newly Appointed United States District Judges 159, 166 (1962). Nonetheless, our previous discussions of the subject suggest that even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. United States v. MarineBancorporation, supra, at 615, n. 13, 94 S.Ct., at 2866, n. 13; UnitedStates v. El Paso Natural Gas Co., supra, 376 U.S., at 656-657,84 S.Ct., at 1047-1048". Id. at 572, 105 S.Ct. at 1510-11. This court has likewise held that this procedure is not prohibited. State v. Erwin (April 8, 1998), 5th Dist. No. 97 CA32. {¶ 27} The trial court did not err in adopting the Findings of Fact and Conclusions of Law submitted by the State. II. {¶ 28} In his Second Assignment of Error, appellant claims the trial court erred when it promised appellant Findings of Fact and Conclusions of Law would be filed concerning the denial of his petition by June 15, 2005. We disagree. {¶ 29} On May 11, 2005 the trial court in the instant case overruled appellant's petition for post-conviction relief without findings of facts and conclusions of law. On May 20, 2005, appellant filed his motion requesting the trial court issue findings of fact and conclusions of law. On June 2, 2005, appellant filed his Notice of Appeal with this Court. On June 21, 2005, the trial court filed a judgment entry overruling appellant's petition which contained Findings of Facts and Conclusions of Law. {¶ 30} Civ. R. 52 does not impose a time limit upon the trial court's issuance of findings of fact and conclusions of law after a party submits a request. We find thirty-two (32) days from the appellant's request for findings of fact and conclusions of law to the trial court's filing of those findings of fact and conclusions of law is a reasonable time period. {¶ 31} As appellant's right to appeal the trial court's decision of June 21, 2005 has not been compromised by the six (6) day delay between June 15 and June 21, 2005 no error, structural or otherwise, has occurred. {¶ 32} Appellant's Second Assignment of Error is overruled. III. {¶ 33} In his Third Assignment of Error, appellant argues that the trial court attempted to make him miss the deadline for filing his appeal from the denial of his petition by not ruling upon his Motion for Reconsideration. We disagree. {¶ 34} On May 11, 2005 the trial court in the instant case overruled appellant's petition for post-conviction relief without findings of facts and conclusions of law. On May 20, 2005, appellant filed his motion requesting the trial court issue findings of fact and conclusions of law. Also on May 20, 2005, appellant filed a Motion to Reconsider the trial court's overruling of his petition. On June 2, 2005, appellant filed his Notice of Appeal with this Court. On June 21, 2005, the trial court filed a Judgment Entry overruling appellant's petition which contained Findings of Facts and Conclusions of Law. {¶ 35} It is axiomatic that the trial court issued its Findings of Fact and Conclusions of Law after the appellant filed his motion to reconsider. Accordingly, the trial court overruled the appellant's motion for reconsideration when it entered its Judgment Entry of June 21, 2005 overruling the petition. {¶ 36} Further, it is well settled that a motion for reconsideration of a final judgment is a nullity. Pitts v. Ohio Dept. of Trans. (1981),67 Ohio St. 2d 378, 379, 423 N.E.2d 1105; Dunkle v. Dunkle (Oct. 17, 2001), 9th Dist. No. 20502, at 4. The rules of civil procedure do not provide for such a motion. Pitts, 67 Ohio St.2d at 380, 423 N.E.2d 1105. {¶ 37} As appellant's right to appeal the trial court's decision of June 21, 2005 has not been compromised we find no error. {¶ 38} Appellant's Third Assignment of Error is overruled. IV. V. {¶ 39} In his Fourth and Fifth Assignments of Error appellant claims the trial court erred in sentencing him to prison terms in light of the decisions of the United States Supreme Court in United States v. Booker (2005), 125 S. Ct. 738, Apprendi v. New Jersey (2000), 530 U.S. 466, andBlakely v. Washington (2004), 542 U.S. 296. We disagree. {¶ 40} At the outset we would note that appellant's petition challenging the judgment entry imposing a prison sentence in the cases at bar is untimely. R.C. 2953.21(A) (2) states a "a petition for post-conviction relief shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, the petition shall be filed no later than one hundred eighty days after the expiration of the time for filing the appeal." {¶ 41} Appellant was given a prison sentence by the Judgment Entry of May 7, 2003. Appellant did not file a direct appeal of that sentence with this court. Appellant's petition was filed in the case at bar on April 6, 2005. This is well beyond the 180 day limit of R.C. 2953.21(A) (2). However, exceptions for late filings are provided for in R.C. 2953.23 which states the following in pertinent part: {¶ 42} "(A) 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 division (A)(1) or (2) of this section applies: {¶ 43} "(1) Both of the following apply: {¶ 44} "(a) Either 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, or, 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. {¶ 45} "(b) 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." {¶ 46} In his petition, appellant did not provide a basis under R.C.2953.21(1) (b) which is a requirement to avoid the filing deadline. {¶ 47} Finally, the United States Supreme Court has not made the decision in Blakely v. Washington(2004), ___ U.S. ____, 124 S. Ct. 2531,159 L. Ed. 2d 403 retroactive to cases already final on direct review. SeeIn re Dean(11th Cir. 2004), 375 F.3d 1287, 1290 ("Because Blakely, likeRing, is based on an extension of Apprendi, Dean cannot show that the Supreme Court has made that decision retroactive to cases already final on direct review."); McBride v. State(Fla.Dist.Ct.App. 2004),884 So. 2d 476, 478 ("We further hold that Blakely does not apply retroactively to cases on collateral review."); State v. Petschl (Minn.Ct.App. 2004), 688 N.W.2d 866, 2004 WL 2663594, at *7 ("Blakely has the same procedural effect as Apprendi, increasing the accuracy of the sentence but not the conviction. Because the Blakely rule does not improve the accuracy or fairness of a trial, we conclude that it is not a watershed rule subject to retroactive application on collateral review."). {¶ 48} Nonetheless, even had Blakely announced a new rule of law, our conclusion that the appellant would not be entitled to have a jury, rather than the sentencing court, determine the factors set forth in R.C. 2929.13 would not change. {¶ 49} In State v. Iddings (November 8, 2004), Delaware App. No. 2004CAA06043, ¶ 12, this court examined the Apprendi and Blakely decisions and found they "do not obviate entirely judicial discretion in sentencing a criminal defendant. Rather, the trial courts maintain discretion to select a sentence within the range prescribed by the legislature." This court further held at ¶ 20-21: {¶ 50} "None of the factors set forth in either 2929.13(B) or 2929.14(B) subject an offender to a prison term in excess of what the law provides as the maximum sentence for a felony of the fourth or fifth degree. The Legislature has simply codified factors that sentences courts have always considered when deciding to sentence a defendant within the range permitted by statute. The fact that the legislature has chosen certain of the traditional sentencing factors and dictated the precise weight to be given those factors does not evade the requirements of theFifth and Sixth Amendments. Harris v. United States, supra,536 U.S. at 568, 122 S.Ct. at 2420. (Citing McMillan v. Pennsylvania (1986), 477 U.S. 79, 106 S. Ct. 2411). {¶ 51} "Accordingly, a jury is not required to find the factors set forth in R.C. 2929.13(B) (2) or R.C. 2929.14(B) before a judge may impose a prison sentence for the conviction of a fourth or fifth degree felony." {¶ 52} Based upon the forgoing, we find the trial court did not err in sentencing appellant in light of Apprendi and Blakely and Booker. {¶ 53} Appellant's Fourth and Fifth Assignments of Error are overruled. VI. {¶ 54} In his Sixth Assignment of Error appellant argues the trial court erred in not conducting an evidentiary hearing on his petition for post-conviction relief. We disagree. {¶ 55} Under R.C. 2953.21, a petitioner seeking post conviction relief is not automatically entitled to an evidentiary hearing. State v.Calhoun (1999), 86 Ohio St. 3d 279, 281, 282, 714 N.E.2d 905. Significantly, the Ohio Supreme Court has held that the proper basis for dismissing a petition for post conviction relief without holding an evidentiary hearing include: 1) the failure of the petitioner to set forth sufficient operative facts to establish substantive grounds for relief, and 2) the operation of res judicata to bar the constitutional claims raised in the petition. Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; State v. Lentz (1994), 70 Ohio St. 3d 527, 530,639 N.E.2d 784. {¶ 56} R.C. 2953.21 does not expressly mandate a hearing for every post-conviction relief petition; therefore, a hearing is not automatically required. In determining whether a hearing is required, the Ohio Supreme Court in State v. Jackson (1980), 64 Ohio St. 2d 107, stated the pivotal concern is whether there are substantive grounds for relief which would warrant a hearing based upon the petition, the supporting affidavits, and the files and records of the case. {¶ 57} As the Supreme Court further explained in Jackson, supra, "[b]road assertions without a further demonstration of prejudice do not warrant a hearing for all post-conviction relief petitions." Id. at 111. Rather, a petitioner must submit evidentiary documents containing sufficient operative facts to support his claim before an evidentiary hearing will be granted. Accordingly, "a trial court properly denies a defendant's petition for post conviction relief without holding an evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief." Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; see R.C. 2953.21(C). {¶ 58} In light of our disposition of appellant's five assignments of error, supra, we find that the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that appellant set forth sufficient operative facts to establish substantive grounds for relief. Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; see R.C. 2953.21(C). {¶ 59} Accordingly, the trial court properly denied appellant's petition for post conviction relief without holding an evidentiary hearing. {¶ 60} Appellant's Sixth Assignment of Error is overruled. {¶ 61} The judgment of the Court of Common Pleas of Fairfield County, Ohio is hereby affirmed. Gwin, J., Boggins, P.J., and Wise, J., concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Fairfield County, Ohio is hereby affirmed. Costs to appellant.

2016-07-06 06:36:46.698066+00

OPINION This appeal arises from the trial court's denial of Appellant's motion for postconviction relief. For the following reasons, this appeal is sua sponte dismissed. On January 8, 1992, Appellant Michael D. Dillon was indicted on one count of aggravated burglary in violation of R.C. § 2901.01 and one count of rape in violation of R.C. § 2907.02. Appellant entered pleas of not guilty and not guilty by reason of insanity. On March 13, 1992, Appellant entered a change of plea pursuant to a Crim.R. 11 agreement whereby the State of Ohio agreed to dismiss the charge of aggravated burglary in exchange for Appellant's guilty plea to the charge of rape. After the trial court accepted the plea agreement, Appellant was sentenced to an indefinite term of not less then ten, nor more than twenty-five years. On March 25, 1994, this Court granted Appellant's motion to allow a delayed appeal. We affirmed the judgment of the trial court in State v.Dillon (Jan. 12, 1996), Monroe App. No. 725, unreported. On May 24, 1996, Appellant filed an application for delayed reconsideration which we denied by an Opinion and Journal Entry filed on August 15, 1996. On September 24, 1996, Appellant, pro se, filed a petition for postconviction relief pursuant to R.C. § 2953.21. On April 1, 1997, Appellant filed a motion to withdraw that petition and on April 9, 1997, the trial court filed an order dismissing the petition pursuant to Appellant's request. Although no actual petition is included in the record, the docket transcript indicates that on August 4, 1997, Appellant filed a second petition for postconviction relief. By a judgment entry filed on August 14, 1997, the trial court ordered Appellant to submit a brief by September 14, 1997. On September 24, 1997, the trial court filed a journal entry denying Appellant's previously filed motions for aid of counsel and for an extension of time. By the same journal entry, the trial court also dismissed Appellant's August 4, 1997 petition due to Appellant's failure to file a brief by the deadline. On October 24, 1997, Appellant filed his notice of appeal of that dismissal. On November 5, 1997, Appellant filed with the trial court a motion for reconsideration of the dismissal and for an extension of time to file a brief. The trial court denied those motions by a journal entry filed on November 17, 1997. During the pendency of the appeal filed on October 24, 1997, on February 12, 1998, Appellant filed a third petition for postconviction relief. On June 12, 1998, the trial court filed findings of fact and conclusions of law wherein it denied Appellant's petition filed on August 4, 1997, despite the fact that it had already dismissed that petition and despite the fact that the matter was presently before this court. Appellant filed a notice of appeal from that decision on June 12, 1998. On July 2, 1998, Appellant filed a motion for summary judgment and release, apparently with respect to his third petition for postconviction relief filed on February 12, 1998. The state opposed that motion by arguing that the issues therein were res judicata as they were previously addressed by this court on direct appeal and in the delayed motion for reconsideration. On August 10, 1998, the trial court by journal entry denied Appellant's motion for summary judgment on the grounds argued by the State. The trial court marked that judgment as a "final appealable order." However, Appellant did not appeal that decision. In two briefs filed in this Court, Appellant raises eleven assignments of error. However, we cannot reach the underlying merits of this appeal as the trial court had no jurisdiction over the petitions, the dismissal or denials of which were appealed to this Court. It is well settled that even when not raised by either party, the issue of subject matter jurisdiction may be raised sua sponte by the court at any stage of the proceedings, including for the first time on appeal. Fox v. Eaton Corp. (1976), 48 Ohio St. 2d 236, 238, overruled on other grounds Manning v.Ohio State Library Board (1991), 62 Ohio St. 3d 24, paragraph one of the syllabus. R.C. § 2953.21(A)(2), effective September 21, 1995, provides that a petition for postconviction relief, "* * * shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication." A savings clause exists which states that: "A person who seeks postconviction relief pursuant to sections 2953.21 through 2953.23 of the Revised Code with respect to a case in which sentence was imposed prior to the effective date of this act * * * shall file a petition within the time required in division (A)(2) of section 2953.21 of the Revised Code, as amended by this act, or within one year from the effective date of this act, whichever is later." 1995 S 4, § 3, effective 9-21-95. State v. Beaver (1998), 131 Ohio App.3d 458, 461-462. We recently held that the limitation imposed by R.C. § 2953.21(A)(2) and its savings clause is not unconstitutionally retroactive and that the one year time limit provided by the savings clause is a reasonable time for one to assert his right to petition the lower court. State v. Buoscio (Dec. 27, 1999), Mahoning App. No. 98-CA-7, unreported, **3. In the present matter, Appellant's direct appeal was decided on January 12, 1996. His first petition for postconviction relief was filed on September 24, 1996, well after the trial transcript was filed in this Court for direct appeal. Moreover, the limitation imposed by the savings clause became effective on September 21, 1995. Although Appellant's first petition was filed with the trial court after the one year limit to do so, the record reflects that he forwarded the petition on September 14, 1996. Ordinarily, with respect to prison inmates the date of delivery to prison authorities for mailing is deemed the date of filing. State v.Owens (1997), 121 Ohio App. 3d 34, 36. Giving Appellant the benefit of this doctrine, his first petition was timely filed with the trial court. However, as noted earlier, Appellant filed a motion to dismiss his first petition and the trial court filed a judgment entry granting that motion. Appellant's petitions filed on August 4, 1997 and February 12, 1998, were filed well after one year from the enactment of the relevant legislation. Although Appellant's subsequent petitions were untimely under R.C. § 2953.21(A)(2) and 1995 S 4, § 3, Appellant had yet another opportunity with which to vest jurisdiction in the trial court pursuant to R.C. § 2953.23, which provides in relevant part: "(A) * * * a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of [R.C. 2953.21] * * * 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 section2953.21 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 * * *." While Appellant has not argued the existence of the preceding factors, we note that in our review of the record there appears some indication that Appellant may have alleged that he was unable to obtain certain documents he deems necessary to his case. On March 27, 1998, Appellant filed a motion asking the trial court to subpoena a sheriff's log which Appellant claims would prove that he was not present at his March 13, 1992, change of plea hearing. However, there is no indication that Appellant "must" have relied upon the sheriff's log to prove his claim. In fact, in his March 27, 1998, motion, Appellant proposed that the Sheriff's records would agree with sworn affidavits of witnesses which stated that Appellant was not present at the hearing. Indeed, the record contains affidavits attached to Appellant's first petition for postconviction relief wherein the affiants asserted that there was no hearing held on March 13, 1992. As Appellant produced other evidence that goes far beyond his assertion that he was not present at the change of plea hearing, the denial of access to the sheriff's log appears inconsequential to any analysis under R.C. § 2953.23. What is clear on review is that the record is devoid of other efforts by Appellant to compel access to the log save for one request for the court to rule on his motion for a subpoena. Based on this and the fact that Appellant makes no argument as to this issue, it cannot be said that Appellant was "unavoidably prevented" from discovering the facts contained within the log. Accordingly, Appellant cannot argue that his petition was timely under the narrow exception provided by R.C. § 2953.23. We also feel it incumbent to resolve a potential issue created by Appellant's voluntary dismissal of his petition filed on September 24, 1996. The rules of civil procedure generally apply to postconviction proceedings. State v. Lawson 103 Ohio App. 3d 307, 313. R.C. § 2305.19 provides that, "[i]n an action commenced, * * * if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the plaintiff * * * may commence a new action within one year of such date." A voluntary dismissal pursuant to the civil rules constitutes a failure "otherwise than upon the merits" for purposes of R.C. § 2305.19. Costell v.Toledo Hosp. (1988), 38 Ohio St. 3d 221, 223. As noted, Appellant's first petition was dismissed by order of the court on April 9, 1997. His subsequent petitions were filed within one year of that dismissal. In light of the fact that Appellant's first petition was properly before the trial court pursuant to the savings clause of R.C. § 2359.21, the question arises, then, whether Appellant may also take advantage of the additional savings clause provided for in R.C. § 2305.19. The Ohio Supreme Court has expressly stated that a savings statute may be used only once to refile a case. Thomas v. Freeman (1997),79 Ohio St. 3d 221, 227. To permit multiple extensions would be to frustrate the intended purpose of rules intended to prevent indefinite filings. Hancock v. Kroger Co. (1995), 103 Ohio App. 3d 266, 269. The Ohio Supreme Court has also ruled that R.C. § 2305.15, a savings statute which tolls the applicable statute of limitations while the defendant is out of state, has absconded, been concealed or imprisoned, is not applicable to an action brought under R.C. § 2305.19. Saunders v.Choi (1984), 12 Ohio St. 3d 247, 250-251. By analogy, in the matter before us, Appellant's first petition was allowable only pursuant to the savings clause of R.C. § 2953.21. It follows that he may not avail himself of any other savings statute or clause. In addition, the clear purpose of time limits imposed by R.C. § 2953.21(A)(2) is to prevent prisoners from taking advantage of their own inordinate delays. State v. Beaver,supra, 461. Permitting Appellant to take advantage of more than one savings clause would frustrate the purpose of the reasonable time limits imposed by R.C. § 2953.21(A)(2). For the foregoing reasons, we hold that the trial court lacked subject matter jurisdiction over Appellant's petition for postconviction relief filed on August 4, 1997. Accordingly, this appeal is dismissed. Donofrio, J., concurs, Vukovich, J., concurs.

2016-11-03 04:09:09.891229+00

http://publicdocs.courts.mi.gov/SCT/PUBLIC/ORDERS/151219_40_01.pdf

Order Michigan Supreme Court Lansing, Michigan November 2, 2016 Robert P. Young, Jr., Chief Justice 151219 & (37) Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen, Justices Plaintiff-Appellee, v SC: 151219 COA: 318872 Isabella CC: 2013-000191-FH JAMES ALLEN CHANDLER, Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the January 27, 2015 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the last paragraph of Section III.B. of the Court of Appeals opinion, and we REMAND this case to the Isabella Circuit Court. The trial court shall consider whether the defendant was properly assigned 15 points on Offense Variable 10 (OV 10) for “predatory conduct” under MCL 777.40(1)(a) and (3)(a), or whether the 15-point score was improperly based solely on the conduct of the defendant’s co-offenders. See People v Gloster, 499 Mich. 199 (2016). If the trial court determines that OV 10 was scored incorrectly, the court shall resentence the defendant. People v Francisco, 474 Mich. 82 (2006). If, however, the trial court determines that OV 10 was correctly scored, the court shall determine whether it would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich. 358 (2015). In making this determination, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court. The motion to remand and for appointment of appellate counsel is DENIED. We do not retain jurisdiction. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. November 2, 2016 s1026 Clerk

2016-07-06 06:36:46.72712+00

OPINION {¶ 1} This is an appeal of a Civ.R. 56 Motion sustained by the Common Pleas Court of Muskingum County. STATEMENT OF THE FACTS AND CASE {¶ 2} This cause began by the filing of a foreclosure by appellee based upon a default in required payments under a note and mortgage secured by the real estate of appellants. {¶ 3} The existence of the note and mortgage is not in dispute. {¶ 4} In their Answer, appellants asserted that appellee wrongfully refused to accept some tendered payments, accepted and returned others and failed to credit payments. {¶ 5} On July 22, 2002 appellee filed its motion for summary judgment as supported by affidavit as to default and balance due. No accounting of payments was supplied. {¶ 6} Appellants responded as to improper non-application of tendered payments. {¶ 7} The Assignments of Error are: I. {¶ 8} "The trial court erred in granting plaintiff-appellee's motion for summary judgment in the face of genuine issues of material fact because defendant-appellants stated in their affidavit attached to their memorandum against motion for summary judgment that defendants-appellants tendered payment to plaintiff-appellee on the adjustable rate note and open-end mortgage and the payments were wrongfully and unjustifiably refused by plaintiff-appellee." II. {¶ 9} "The trial court erred as a matter of law in granting plaintiff-appellee's motion for summary judgment because plaintiff-appellee's motion did not establish that plaintiff-appellee was entitled to judgment as a matter of law since plaintiff-appellee's motion for summary judgment did not controvert defendants-appellants' assertions that they had made payments on the adjustable rate note and open-end mortgage and the payments were wrongfully and unjustifiably refused by plaintiff-appellee." I., II. {¶ 10} Civil Rule 56(C) states, in pertinent part: {¶ 11} "Summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor." {¶ 12} Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. In order to survive a motion for summary judgment, the non-moving party must produce evidence on any issue to which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991),59 Ohio St.3d 108, citing Celotex v. Catrett (1986), 477 U.S. 317. 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. {¶ 13} We shall address each of the Assignments of Error simultaneously. {¶ 14} While we cannot conclude as a matter of fact or law that appellants are or are not in default, the standards as to sustaining a Civ.R. 56 Motion have not been met. {¶ 15} Appellants have disputed the default by improper non-acceptance of tendered payments. In support of its motion, appellee merely relies on the allegations of its complaint without confronting the position taken by appellants. {¶ 16} In light of these matters, can we say that (1) a material matter is not in dispute, or (2) reasonable minds could only reach a conclusion adverse to appellants, when considering these matters most strongly in favor of appellants. {¶ 17} The answer is no, we cannot. {¶ 18} Therefore, we sustain the Assignments of Error and remand this cause for further proceedings. By: Boggins, J.; Farmer, P.J. and Hoffman, J. concur.

2016-07-06 06:36:47.841311+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Defendant-appellant, Derrick English, appeals his convictions for seven drug-related offenses in the Lorain County Court of Common Pleas. We affirm. On January 20, 1999, Defendant pleaded guilty to one count of engaging in corrupt activity in violation of R.C. 2923.32(A)(1), a felony of the first degree; and three counts of trafficking in cocaine in violation of R.C. 2925.03(A), a felony of the first degree, and one count a felony of the second degree. Defendant pleaded guilty to a major drug offender specification accompanying each of the foregoing charges. He also pleaded guilty to one count of permitting drug abuse in violation of R.C. 2925.13(A) and one count of possession of drug abuse paraphernalia in violation of R.C. 2925.14(C)(1). Defendant refused to participate in the preparation of a presentence investigation report. On January 29, 1999, Defendant moved to withdraw his guilty plea pursuant to Crim.R. 32.1. At that time, defense counsel also moved to withdraw from representation. The trial court set the motion to withdraw the plea for a hearing, permitted counsel to withdraw, and appointed new counsel for the purposes of the hearing on the motion. The trial court commenced a hearing on February 5, 1999. On February 12, 1999, the trial court completed the hearing, denied the motion, and proceeded to sentencing. Defendant was sentenced to concurrent prison terms totaling seventeen years, and the trial court ordered two automobiles owned by Defendant to be forfeited to the State of Ohio. Defendant timely appealed. ASSIGNMENT OF ERROR I The trial court abused it's [sic] discretion by denying [Defendant's] motion to withdraw his guilty plea. In his first assignment of error, Defendant has argued that the trial court incorrectly denied his motion to withdraw his guilty plea pursuant to Crim.R. 32.1. We disagree. Crim.R. 32.1 permits a defendant to move the trial court to withdraw a previously entered guilty plea prior to sentencing. The rule does not, however, establish an absolute right to withdraw a guilty plea before sentence is entered. State v. Xie (1992), 62 Ohio St.3d 521, paragraph one of the syllabus. Rather, the determination of whether there is a "reasonable and legitimate basis" to permit withdrawal of the plea lies within the sound discretion of the trial court. Id. at paragraphs one and two of the syllabus. Consequently, we review the trial court's determination for abuse of discretion. State v. Newland (1996),113 Ohio App.3d 832, 837. During the hearing, Defendant testified that his decision to plead guilty was influenced by the belief that his attorneys had reached an agreement with the State. Defendant's former attorney testified that he had visited Defendant in jail and had informed him at that time of his opinion that a guilty plea would be in Defendant's best interests. He stated that he had informed Defendant of the potential consequences of a plea and had reviewed the strengths and weaknesses of the case. He also recalled that he informed Defendant that a guilty plea could produce the possibility of favorable consideration by the State "depending on what occurred and what did not occur." Notably, counsel observed that "there was no guarantee" of positive consideration. The prosecuting attorney confirmed that no plea agreement had been reached. The trial court, after hearing the evidence presented at the hearing, concluded: * * * I believe the evidence has been consistent and essentially has been that there was no promise, there was no plea bargain in this case. * * * As I see it, at most, there were discussions which Mr. English understood that maybe he would be able to post a bond, and that maybe if he posted the bond, he would be able to renew some contacts in the drug community, and maybe if he renewed those contacts, they would be sufficient to cause law enforcement or the State to look at the possibility as to whether they should take a position or urge the Court that the Defendant has cooperated and should be given some consideration. Those are a lot of maybes ***. This is not a promise or a plea bargain in any way, shape, or form. Given the evidence in the record, we are not persuaded that the trial court's determination was motivated by "perversity of will, passion, prejudice, partiality or moral delinquency." See Statev. Green (1996), 116 Ohio App.3d 56, 59. Accordingly, Defendant's contention that this determination constituted an abuse of discretion is not well taken, and his first assignment of error is overruled. ASSIGNMENT OF ERROR II [Defendant] did not enter an [sic] voluntarily and knowingly [sic] plea of guilty. Defendant has argued in his second assignment of error that his guilty plea was not knowingly, voluntarily, and intelligently made. The record, however, indicates otherwise. Before accepting a guilty plea, the trial court must inform a defendant of the right to counsel and must personally address the defendant to determine whether (1) the plea is being made voluntarily and with knowledge of the charges and potential penalties involved; (2) the defendant understands the effect of the guilty plea; and (3) the defendant understands that the guilty plea constitutes waiver of the rights to jury trial, to confront and call witnesses, to have guilt proved beyond a reasonable doubt, and to be tried with the right not to testify. Crim.R. 11(C); State ex rel. Stern v. Mascio (1996), 75 Ohio St.3d 422,424. This procedure fully encompasses the requirements of the United States Constitution with respect to the knowing, voluntary nature of a guilty plea. State v. Johnson (1988),40 Ohio St.3d 130, 133, certiorari denied (1989), 489 U.S. 1098,103 L.Ed.2d 940. Consequently, our review of Defendant's allegations must concentrate on whether the trial court complied with the dictates of Crim.R. 11. State v. Scott (1996), 113 Ohio App.3d 401,403. The trial court in this case meticulously complied with the dictates of Crim.R. 11(C) by informing Defendant of the nature of the charges against him and the penalties that would result from a conviction. The court apprised Defendant of the rights that would be waived by a guilty plea. In addition, the court conducted the following inquiry: The Court: Mr. English, are you a United States citizen? Defendant: Yes. The Court: Has anyone forced you in any way to plead guilty? Defendant: No. The Court: Has anyone threatened you causing you to plead guilty? Defendant: No. The Court: Have there been any promises or representations made causing you to plead guilty here today? Defendant: No. The Court: I'm holding up and showing you a yellow plea s[h]eet, and on the very last page of the plea sheet I'm showing you the signature of Derrick L. English. Is that your signature? Defendant: Yes. The Court: Did you read this plea sheet entirely before you signed it? Defendant: Yes. The court then noted an ambiguity on the face of the written plea: The Court: * * * Before we go any further, I notice that — the answer to question number 8 has me concerned. The question is, "Has anyone used any force or made any promises to you in order to get you to plead guilty?" and you wrote, "Yes." Defendant: I mean — I meant no on that one. Defendant has argued that the trial court should have inquired further into the inconsistent answer provided on the plea sheet. The record, however, indicates that Defendant verbally informed the court that he had not been the subject of force or coercion. He affirmatively stated that the written answer was an error. He also informed the court that he fully understood the contents of the plea sheet and noted that none of the information contained therein was incorrect. Under these circumstances, we cannot conclude that the trial court erred in determining that Defendant's guilty plea was entered knowingly, voluntarily, and intelligently. Defendant's second assignment of error is overruled. ASSIGNMENT OF ERROR III The conduct of [Defendant's] attorneys constitutes ineffective assistance of counsel. Defendant's final assignment of error alleges that he was deprived of the effective assistance of counsel prior to entering his guilty plea. Specifically, he has argued that his attorney coerced him to plead guilty with the promise of a plea agreement that was not honored. Appeals based on ineffective assistance of counsel are governed by a standard of objective reasonableness. Strickland v.Washington (1984), 466 U.S. 668, 688, 80 L.Ed.2d 674, 693-94;State v. Bradley (1989), 42 Ohio St.3d 136, 142, certiorari denied (1990), 497 U.S. 1011, 111 L.Ed.2d 768. Under this standard, a defendant must show deficiency in the performance of counsel "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment."Strickland v. Washington, 466 U.S. at 687, 80 L.Ed.2d at 693. As applied to guilty pleas, the defendant must also show prejudice by demonstrating a reasonable probability that, but for the errors of counsel, he would have proceeded to trial in lieu of a guilty plea. State v. Xie, 62 Ohio St.3d at 524. In applying this test, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland v. Washington, 466 U.S. at 689,80 L.Ed.2d at 694. As noted supra, the record does not evidence the existence of a plea agreement between Defendant and the State. Defendant stated for the record that no promises or representations had led him to plead guilty. Given this information, we are unable to conclude that, but for trial counsel's actions, Defendant would have pursued his right to trial. Defendant's final assignment of error is overruled. Defendant's assignments of error are overruled. The judgment of the trial court is affirmed. Judgment affirmed. KK The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to Appellant. Exceptions. LYNN C. SLABY FOR THE COURT BAIRD, P.J. WHITMORE, J., CONCUR

2016-07-06 06:36:47.141002+00

OPINION. {¶ 1} Defendant-appellant Corwin Goode appeals from his conviction and sentence, following a jury trial, upon one count of possession of crack cocaine in an amount equaling or exceeding ten grams, but less than 25 grams, and one count of possession of cocaine in an amount equaling or exceeding 25 grams, but less than 100 grams. Goode contends that the trial court abused its discretion by denying his motion for a continuance, that the trial court abused its discretion by denying his motion to substitute counsel, and that his conviction is against the manifest weight of the evidence. We conclude that the trial court did not abuse its discretion in denying a motion for continuance made on the morning of trial, based upon new indictments about which the defendant had known for at least a week. We also conclude that the trial court did not abuse its discretion in denying defendant's motion to substitute counsel, where no grounds for substituting counsel were shown. Finally, we conclude, based upon our review of the evidence in the record, that Goode's conviction is not against the manifest weight of the evidence. Accordingly, the judgment of the trial court is Affirmed. I {¶ 2} In March 2001, police officers executed a search warrant at a residence at 1846 Emerson Avenue, in the city of Dayton. Upon entering the residence, the officers found Saconna Hart and defendant-appellant Corwin Goode. {¶ 3} The police officers found three baggies of crack cocaine in a drawer in the kitchen of the apartment. They also found two baggies of powdered cocaine in the kitchen drawer. Other evidence was also found. {¶ 4} Hart testified at trial. She testified that she had been at the Emerson Avenue residence on two occasions. At the time of the execution of the search warrant, she had accompanied Goode to the apartment, in preparation for going out of a date with him. She testified that upon entering the residence, Goode removed some clothes from a bag he had been carrying, and laid them out on a couch in the apartment, as if he were going to change clothes. At one point, Hart used a bathroom, access to which was through a bedroom in the apartment. {¶ 5} Hart testified that she saw Goode take a baggie from his pocket, and put it in a drawer in the kitchen. She testified that she was familiar with crack cocaine, and recognized the substance in the baggie as being crack cocaine. This was about 30 minutes before the execution of the search warrant. {¶ 6} Goode was arrested at the scene. He was initially indicted on the two counts of possession of cocaine for which he was ultimately convicted, and on one count of Having a Weapon While Under Disability. Three weeks before trial, he was indicted with three additional offenses: Having a Weapon While Under Disability, with a firearm specification, and two counts of Possession of Criminal Tools. {¶ 7} On the morning of the day set for trial, Goode moved for a continuance, based upon the recent indictment charging him with three additional offenses. This motion was denied. Goode then requested substitution of trial counsel. This request was denied. {¶ 8} The trial proceeded. It appears that a jury was selected on the same day that Goode orally moved for a continuance, and that opening statements and testimony commenced the following day. The jury found Goode guilty of the possession of cocaine and possession of crack cocaine counts, but not guilty of the Having a Weapon While Under Disability counts and the Possession of Criminal Tools counts. A judgment of conviction was entered, and Goode was sentenced appropriately. {¶ 9} From his conviction and sentence, Goode appeals. II {¶ 10} Goode's First Assignment of Error is as follows: {¶ 11} "The trial court abused its discretion when it denied a properly submitted motion for continuance of trial counsel." {¶ 12} Goode acknowledges that a motion for a continuance of a trial is confided to the discretion of the trial court. State v. Unger (1981), 67 Ohio St.2d 65; State v. Bayless (1976), 48 Ohio St.2d 73. Goode contends that the trial court abused its discretion by denying his motion for a continuance, because he needed additional time to prepare for the three counts of the second indictment, returned three weeks before trial. Goode's trial counsel informed the court that he had been out of town until one week before the trial. {¶ 13} We find no abuse of discretion. Goode contends that he made his motion the day before trial, but our review of the record indicates that his motion was made orally on the morning of trial. Although opening statements and the presentation of testimony did not begin until the following day, it appears from the record that the jury was selected on the same day that Goode made his motion. {¶ 14} Goode's counsel acknowledges that he was aware of the additional charges at least one week before trial. We find no abuse of discretion by the trial court in denying a motion for a continuance made on the morning of trial, based upon facts and circumstances that had been known to defense counsel a week before trial. {¶ 15} Furthermore, we note that Goode was acquitted on all of the counts that were added by the additional indictment returned against him three weeks before trial, so that it would appear that he was not harmed by any alleged lack of opportunity to prepare defenses to these charges. {¶ 16} Goode's First Assignment of Error is overruled. III {¶ 17} Goode's Second Assignment is as follows: {¶ 18} "The trial court erred in failing to allow appellant to obtain new counsel and in the alternative allow counsel to withdraw." {¶ 19} After the trial court had denied Goode's oral motion for a continuance of the trial, which is the subject of his First Assignment of Error, Goode renewed his request for a continuance: {¶ 20} "MR. KNAPP [representing Goode]: That's correct, Your Honor. Uh . . . my client, uh . . . feels so strongly about the fact that, uh . . . — that, uh . . ., uh . . . he wanted a Continuance on this matter and wants to see if — if this can be, uh . . . resolved through a Continuance, that he is advising me that he is refusing to proceed into the Courtroom, uh . . . for the progression of this trial or the — even for the selection of the Jury. {¶ 21} [Whereupon, the trial judge reviewed with Goode various options for viewing the proceedings by television, etc.] {¶ 22} "MR. GOODE: But that's not the problem, sir. That's not the problem with me bein' in the presence of the Jury. That's not the problem at all. That's not . . . {¶ 23} "JUDGE HALL: What's . . . {¶ 24} "MR. GOODE: . . . the reason. {¶ 25} "JUDGE HALL: What's the . . . {¶ 26} "MR. GOODE: That's not the . . . {¶ 27} "JUDGE HALL: . . . problem? {¶ 28} "MR, GOODE: That's not the reason of me askin' for a Continuance, sir. {¶ 29} "JUDGE HALL: And that's denied. And we're not gonna go ahead and go over that again. That's denied and that's the . . . {¶ 30} "MR. GOODE: Well, I mean . . . {¶ 31} "JUDGE HALL: . . . the . . . {¶ 32} "MR. GOODE: . . . that's what I'm askin' for. I need a Continuance. That's what . . . {¶ 33} "JUDGE HALL: And — and . . . {¶ 34} "MR. GOODE: . . . I'm askin' for. {¶ 35} "JUDGE HALL: . . . you're not going to be granted a Continuance. That question is not gonna be addressed anymore. {¶ 36} "MR. GOODE: Well, I — I'm I mean, well, the Court — it can't go on, sir. I'm askin' for a new Counsel. I'm trying' — I'm tryin' to be a — I'm tryin' to fight my case. Now you tellin' me I'm supposed to go ahead . . . {¶ 37} "JUDGE HALL: What . . . {¶ 38} "MR. GOODE: . . . on . . . {¶ 39} "JUDGE HALL: For what reason . . . {¶ 40} "MR. GOODE: . . . when I need . . . {¶ 41} "JUDGE HALL: For what reason do you request new Counsel? {¶ 42} "MR. GOODE: For the support of my case, sir. {¶ 43} "JUDGE HALL: Any . . . {¶ 44} "MR. GOODE: I've bein' . . . {¶ 45} "JUDGE HALL: . . . specific. . . . {¶ 46} "MR. GOODE: I've . . . {¶ 47} "JUDGE HALL: . . . reason? {¶ 48} "MR. GOODE: I've bein' — I've bein' indicted on two new — three new charges two weeks before a trial. You think that's fair? You think that's givin' me adequate time to proceed? {¶ 49} "JUDGE HALL: I've already dealt with those issues. Any other reason that you think that you . . . {¶ 50} "MR. GOODE: I'm askin' for new . . . {¶ 51} "JUDGE HALL: . . . should be . . . {¶ 52} "MR. GOODE: I'm gettin' new coun — I'm askin' for a new Counselor. And I'm gonna hire my own attorney, that's all. {¶ 53} "JUDGE HALL: Any other reasons that you want new Counsel? {¶ 54} "MR. GOODE: Sir, what'd I just ask for? {¶ 55} "JUDGE HALL: I — I heard the reasons that you gave. I'm asking if you have any other reasons. {¶ 56} "You're already on your second attorney in this case. {¶ 57} "MR. GOODE: I understand that. {¶ 58} "JUDGE HALL: And therefore . . . {¶ 59} "MR. GOODE: And it's — it's . . . {¶ 60} "JUDGE HALL: . . . the Court is going to deny you new Counsel and gonna require Mr. Knapp to represent you." {¶ 61} After this the colloquy between Goode and the trial court continued, but nothing of any significance was added. {¶ 62} As can be seen from the portion of the transcript quoted above, it is evident that Goode's request for a substitution of counsel was merely another attempt to get the continuance that had already been denied. Although invited by the trial court to provide reasons for wishing to substitute counsel, Goode failed to do so. Accordingly, we find no abuse of discretion on the part of the trial court in denying Goode's motion to substitute counsel. {¶ 63} Goode's Second Assignment of Error is overruled. IV {¶ 64} Goode's Third Assignment of Error is as follows: {¶ 65} "The verdict of the jury was against the manifest weight of the evidence." {¶ 66} Goode cites State v. Thompkins (1997), 78 Ohio St.3d 380, for the proposition that when the weight of the evidence is challenged, an appellate court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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. {¶ 67} Essentially, Goode invites this court to find that the testimony of Saconna Hart is not worthy of belief. We have read the entire transcript of Hart's testimony upon direct examination and cross-examination, and we find nothing inherently incredible about her testimony. {¶ 68} Goode's contention that Hart's testimony is not worthy of belief appears to be predicated exclusively upon two inconsistencies between her trial testimony and a statement she gave to police officers. The first inconsistency is between her trial testimony that she had been to the apartment only twice, and her statement to the police that she had been to the apartment four or five times. The second inconsistency is between her trial testimony that she had been in the apartment for about an hour prior to the execution of the search warrant, and her statement to the police that she had been at the apartment for about five hours before the execution of the search warrant. This latter discrepancy was partially explained by Hart's testimony that Goode had picked her up earlier that afternoon, but that they had stopped at a friend's house before going to the apartment, perhaps explaining the longer time frame in her statement to the police. {¶ 69} As the State notes in its brief, the trial took place over a year after the incident. We do not find it remarkable that Hart's recollection of events at the time of the execution of the search warrant, as she testified at trial, is not completely consistent with the statement that she gave to police at the time of the incident. As the State notes, Hart's testimony was consistent with her police statement with respect to material matters. These included her observation of Goode taking a plastic baggie containing what appeared to be crack cocaine from his pocket and putting it in the kitchen drawer. From this evidence alone, a reasonable jury could conclude that Goode exercised dominion and control over the illegal drugs in the kitchen drawer. {¶ 70} Evidence of Goode's relationship to the apartment in which the drugs were found did not depend entirely upon Hart's testimony. One of the police officers testifying at trial testified that he observed Goode in the front yard of the apartment building, talking on a white cordless phone, approximately seven hours before the execution of the warrant. A white cordless phone was subsequently located inside the living room of the apartment. Photographs seized from the residence depicted Goode standing outside the apartment building, next to the porch. Other photographs showed Goode and an unidentified woman inside the kitchen. Keys that Goode asserted were his were found to unlock the front door to the apartment building, and both the inner door and wrought iron security door to the apartment unit. {¶ 71} Based upon all of the evidence in the record, we cannot say that the jury lost its way in finding that the drugs seized from the kitchen drawer in the apartment were within Goode's possession in the sense that he exercised dominion and control over them. {¶ 72} Goode's Third Assignment of Error is overruled. V {¶ 73} All of Goode's assignments of error having been overruled, the judgment of the trial court is Affirmed. GRADY and YOUNG, JJ., concur.

2016-10-31 18:22:29.522325+00

http://www.courts.wa.gov/opinions/pdf/743261.pdf

a IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON LARRY SPOKOINY, DIVISION ONE Appellant, No. 74326-1-1 THE WASHINGTON STATE YOUTH UNPUBLISHED OPINION SOCCER ASSOCIATION, a Washington nonprofit corporation, Respondent. FILED: October 31, 2016 Dwyer, J. —Today we are called upon to answer whether, when the judgment to be satisfied by an enforcement action is an amended judgment and the amended judgment altered the principal amount of the original judgment by including amounts awarded for losses incurred after entry of the original judgment, the statutory 10-year limitation period for enforcement of judgments commences upon entry of the amended judgment. The answer is yes. In 2004, the Washington State Youth Soccer Association (WSYSA) imposed a five-year suspension against Larry Spokoiny for misconduct. Spokoiny subsequently filed a petition seeking a temporary restraining order No. 74326-1-1/2 against WSYSA in superior court. WSYSA moved for summary judgment, citing Spokoiny's failure to exhaust the internal appeal procedure required by its by laws prior to filing a court action. The superior court granted the motion on May 17, 2004. Thereafter, based on a cost-recovery provision in its by-laws, WSYSA requested an award of attorney fees and costs related to the litigation. On July 7, 2004, the superior court granted the request, awarding $16,353.83 in fees and costs. The superior court then entered judgment against Spokoiny in that amount. On appeal, we affirmed the trial court's decision. Spokoiny v. Wash. State Youth Soccer Ass'n, 128 Wash. App. 794 , 117 P.3d 1141 (2005). Spokoiny moved for reconsideration, which was denied. On September 2, 2005, a commissioner's ruling awarding fees and costs granted WSYSA $18,819.59 in attorney fees and costs resulting from Spokoiny's appeal. Spokoiny sought discretionary review by our Supreme Court, but his request was denied. Spokoiny v. Wash. State Youth Soccer Ass'n, 156 Wash. 2d 1036 , 134 P.3d 1170 (2006). Our mandate issued on July 11, 2006. Two months later, WSYSA moved for entry of an amended judgment in the superior court. On September 29, 2006, the superior court entered an amended judgment that included the following components: (1) the original principal judgment amount, (2) interest accrued on that amount, and (3) an additional amount for reasonable attorney fees and costs incurred by WSYSA in successfully defending the appeal. The amended judgment against Spokoiny totaled $45,187.51. Spokoiny did not appeal from the amended judgment. No. 74326-1-1/3 Nine years later, in August 2015, WSYSA applied for a writ of garnishment against Spokoiny, which the trial court subsequently issued. Two weeks thereafter, WSYSA moved for an order authorizing supplemental proceedings, which the trial court granted. One week later, Spokoiny filed a motion to quash the writ of garnishment and the order requiring him to appear in court for supplemental proceedings. This motion was denied. Spokoiny unsuccessfully moved for reconsideration. Spokoiny now appeals. II A Four statutes establish the time period for enforcing a judgment and thus control the disposition of this case.1 The first such statute, RCW 4.16.020, details that actions upon a judgment are subject to a 10-year limitation period: The period prescribed for the commencement of actions shall be as follows: Within ten years: (2) For an action upon a judgment or decree of any court of the United States, or of any state or territory within the United States, or of any territory or possession of the United States outside the boundaries thereof, or of any extraterritorial court of the United 1Spokoiny cites numerous cases from Washington—and one case from Vermont—in claimed support for his arguments. TCAP Corp. v. Gervin. 163 Wash. 2d 645 , 185 P.3d 589 (2008); Am. Disc. Corp. v. Shepherd. 129 Wash. App. 345 , 120 P.3d 96 (2005), affd, 160 Wash. 2d 93 , 156 P.3d 858 (2007); BNC Mortq.. Inc. v. Tax Pros. Inc., 111 Wash. App. 238 , 46 P.3d 812 (2002), overruled on other grounds by Columbia Cmtv. Bank v. Newman Park, LLC, 177 Wash. 2d 566 , 304 P.3d 472 (2013); Wlasiuk v. Whirlpool Corp.. 76 Wash. App. 250 , 884 P.2d 13 (1994); N. St. Ass'n v. City of Olvmpia, 96 Wash. 2d 359 , 635 P.2d 721 (1981); Aver v. Hemingway, 2013 VT 37 , 73 A.3d 673(2013). None of these cases bear directly upon the matter before us and we need not address them further. 3- No. 74326-1-1/4 States, unless the period is extended under RCW 6.17.020 or a similar provision in another jurisdiction. RCW 6.17.020(1) indicates that legal actions are available to enforce a judgment and that such actions are subject to a 10-year time limit that begins upon entry of the judgment: (1) Except as provided in subsections (2), (3), and (4) of this section,[2] the party in whose favor a judgment of a court has been or may be filed or rendered, or the assignee or the current holder thereof, may have an execution, garnishment, or other legal process issued for the collection or enforcement of the judgment at any time within ten years from entry of the judgment or the filing of the judgment in this state. RCW 4.56.190 sets forth a limitation period regarding the existence of judgment liens arising from the entry of judgments: The real estate of any judgment debtor, and such as the judgment debtor may acquire, not exempt by law, shall be held and bound to satisfy any judgment of the district court of the United States rendered in this state and any judgment of the supreme court, court of appeals, superior court, or district court of this state, and every such judgment shall be a lien thereupon to commence as provided in RCW 4.56.200 and to run for a period of not to exceed ten years from the day on which such judgment was entered unless the ten- year period is extended in accordance with RCW 6.17.020(3).... Personal property of the judgment debtor shall be held only from the time it is actually levied upon. RCW 4.56.210 sets forth a 10-year limitation period arising from the entry of Washington court judgments and repeats the 10-year limitation for judgment liens: (1) Except as provided in subsections (2) and (3) of this section, after the expiration of ten years from the date of the entry of any 2Special rules exist for child support judgments and restitution or costs in a criminal case. RCW 6.17.020(2), (4). Subsection (3) of RCW 6.17.020 permits a prevailing party to obtain an extension of the 10-year enforcement period. No. 74326-1-1/5 judgment heretofore or hereafter rendered in this state, it shall cease to be a lien or charge against the estate or person of the judgment debtor. No suit, action or other proceeding shall ever be had on any judgment rendered in this state by which the lien shall be extended or continued in force for any greater or longer period than ten years. (3) A lien based upon an underlying judgment continues in force for an additional ten-year period ifthe period of execution for the underlying judgment is extended under RCW 6.17.020. When read together, these statutes indicate the start date of the time period during which a judgment may be enforced. The statutory language makes clear that this enforcement period begins upon entry of judgment. RCW 6.17.020(1) ("from entry of the judgment"); RCW 4.56.190 ("from the day on which such judgment was entered"); RCW 4.56.210(1) ("from the date of the entry of any judgment"). When "judgment" is initially specified in each statute, it is described as "a judgment" or, more notably, "any judgment." RCW 4.16.020(2); RCW 4.56.190, .210(1); RCW 6.17.020(1). When "judgment" is mentioned again in a statutory section, the language used therein merely refers back to the initial mention of "judgment." See, e.g., RCW 4.56.190 ("such judgment"); RCW 4.56.210(3) ("the underlying judgment"); RCW 6.17.020(1) ("the judgment"). Upon review of the pertinent statutory language, then, it is clear that "judgment" was intended to be construed broadly. Thus, taken together, these statutes establish that the time to enforce a judgment begins upon entry of any judgment. No. 74326-1-1/6 B Spokoiny contends that WSYSA's 2015 enforcement action is barred by the 10-year limitation period for enforcing judgments.3 He is wrong. Spokoiny first asserts that WSYSA is barred from enforcing its judgment because the proper interpretation of "judgment," as set forth in RCW 6.17.020 and RCW 4.56.210, is limited to only an "original judgment." In this case, he argues, that is the 2004 judgment. However, neither the statutes referenced by Spokoiny nor any of the other pertinent statutes support Spokoiny's interpretation of "judgment." Nowhere in the statutory language does the phrase "original judgment" appear. Rather, the time period to enforce a judgment commences upon the entry of that judgment. Spokoiny's contention to the contrary is without merit. Spokoiny next contends that WSYSA is barred from enforcing its judgment against him because the 2006 amended judgment necessarily "relates back" to the date of the "original judgment" in 2004. As discussed, the pertinent statutes establish the entry of anyjudgment as the triggering event for the purpose of computing a limitation period applicable to that judgment. The statutes do not reference the entry of an earlier or "original" judgment. See RCW 6.17.020(1); RCW 4.56.190, .210. Furthermore, applicable case authority reflects the commonsense interpretation that entry of a judgment is the triggering event for both the availability of enforcement actions and the time period limiting such enforcement. See, e.g.. Krueoer v. Tippett. 155 Wash. App. 216 , 226, 229 P.3d 3Spokoi ny's arguments focus exclusively on RCW 6.17.020 and RCW 4.56.210, failing to mention RCW 4.16.020 and RCW 4.56.190, two clearly applicable statutes. 6- No. 74326-1-1/7 866 (2010) ("Entry of judgment creates a lien.") (discussing RCW 6.17.020(1)); Hazel v. Van Beek. 135 Wash. 2d 45 , 54, 954 P.2d 1301 (1998) ("The 10-year period commences upon entry of judgment, regardless of when the lien is filed.") (citing RCW 4.56.190, .210(1)). Spokoiny also contends that WSYSA is barred from enforcing its judgment against him because it—in actuality—sought to enforce the 2004 judgment, not the 2006 amended judgment. To the contrary, the 2006 amended judgment is the judgment sought to be enforced by WSYSA. WSYSA's request in 2015 for an order authorizing supplemental proceedings clearly sought to enforce the 2006 amended judgment. It is that judgment that would be satisfied by a successful enforcement action. C Entry of a judgment marks the start date of the time period allowing for enforcement of that judgment. The amended judgment herein was explicit in both its incorporation of the original judgment amount and its inclusion of later amounts awarded. WSYSA properly sought to enforce that judgment within the time period allowed by pertinent statutes. Thus, the trial court astutely and properly permitted WSYSA to seek enforcement of its judgment against Spokoiny. No. 74326-1-1/8 Affirmed.4 We concur: 1*ftKeft L 4WSYSA's request for an award of attorney fees and costs based on the frivolous appeal provision of RAP 18.9(a) is denied. We express no opinion as to whether such an award would be appropriate if made on a different basis.

2016-07-06 06:36:46.106509+00

This is an appeal on questions of law from the Common Pleas Court of Franklin County which overruled plaintiff's demurrer to the answer of the defendants. The plaintiff not desiring to plead further, the cause was dismissed. There is no dispute between the parties as to the facts. The sole question for determination relates to the legal effect of the undisputed facts alleged in the pleadings. The well-considered and comprehensive written opinion of the trial judge, Honorable Myron B. Gessaman, is found among the papers in the case. The trial court held that Section 3, ArticleXVIII of the Ohio Constitution, confers on municipalities the "authority to exercise all powers of local self-government," but that section XV of the charter of the city of Upper Arlington, which provides for submitting an annexation *Page 282 ordinance to a vote of the electors, did not fall in that category; that the constitutional provision conferring on municipalities the "powers of local self-government" contemplates and includes only such powers as are local in the sense that they relate to the municipal affairs of the particular municipality; that matters involving annexation of territory to a municipal corporation are not purely local matters and, therefore, are not proper functions of local self-government; and that such matters are of a general nature and state-wide in their scope. The trial court concluded that section XV of the charter of the city of Upper Arlington deals with a subject that is not a function of local self-government; that this section is in conflict with the general laws passed by the General Assembly under its constitutional powers and is, therefore, void and of no effect. As a consequence the commission of the city of Upper Arlington was not required to submit ordinance No. 1057 to a vote of the electors of the city. Support for this conclusion is found in the following cases which were cited: Fitzgerald v. City of Cleveland, 88 Ohio St. 338,103 N.E. 512; City of Mansfield v. Endly, 38 Ohio App. 528,535, 176 N.E. 462; Village of Brook Park v. City ofCleveland, 26 Ohio Opinions, 536, 538, 12 Ohio Supp., 77. After carefully considering all the legal questions raised by counsel in their briefs, we have arrived at the same conclusion as the trial court. We find no necessity to restate here the applicable provisions of the law so effectively stated in the excellent written opinion by the trial judge. As we find no error in the record prejudicial to the appellant, the judgment is affirmed. Judgment affirmed. MILLER, P. J., HORNBECK and WISEMAN, JJ., concur. *Page 283

2022-07-29 03:08:02.737885+00

PER CURIAM. Appeal dismissed.

2016-07-06 06:36:46.561467+00

Bowman

This is an appeal by the Director of the Environmental Protection Agency, pursuant to R.C. 3745.06, from a decision of the Environmental Board of Review that vacated an order of the director revoking all permits to install a landfill and a 1990 solid waste facility operating license issued to appellee, Crossbridge, Inc. The director sets forth the following assignment of error: *Page 780 "The Environmental Board of Review (hereinafter `Board') erred in holding that Revised Code Section 3734.09, requiring a finding of an emergency, is applicable to a final action of the Director revoking a permit pursuant to R.C. Section 3734.42(E)." The essential facts of this case are not in dispute. In 1984, the director issued a permit to install to Crossbridge, which began accepting waste at its landfill in 1988. Joseph Scugoza was the sole shareholder of Crossbridge as well as its treasurer. In late 1989, Crossbridge submitted an application to modify its permit to install and, as part of that application and as required by R.C. 3734.42, filed a disclosure statement which included, among other things, information pertaining to Crossbridge, its owners, officers and key employees, as well as a listing of convictions and judgments rendered against the company or designated officers and employees. Based in part on information provided in the disclosure statement, the Attorney General conducted an investigation and prepared a report for the director which disclosed Scugoza had pled guilty to a felony in New Jersey in June 1983 and again in December 1989. In November 1990, the director issued a final order revoking Crossbridge's permit to install and its solid waste operating license and ordered the landfill closed immediately. Crossbridge appealed the director's final order to the board and moved for a stay of the director's order. The parties stipulated the following facts before the board: "1. Prior to the Director of Environmental Protection issuing his November 2, 1990 Final Findings and Orders to Crossbridge Inc., there was not a proposed action, nor was a prior adjudication hearing conducted. "2. On November 4, 1982, Joseph Scugoza and Holloway, Inc. pleaded guilty to conspiracy to violate the Monopolies Provisions of the Solid Waste Control Act, fourth degree, New Jersey statutes annotated, Section 48:13A-10A, and New Jersey statutes annotated, 40:13A-12A, and were sentenced on June 24, 1983. "3. On December 12, 1989, Joseph Scugoza was found guilty of conspiracy to falsify records in violation of New Jersey statutes annotated, Section 2C:5-2, a crime of the fourth degree, equivalent to a felony of the fourth degree in Ohio, and was sentenced on May 3rd 1990." Despite references to numerous other allegations or facts allegedly involving Scugoza or companies with which he is associated, the only facts before the board were those stipulated by the parties. Likewise, many references by the director in his brief to actions alleged to be those of Scugoza, or others investigating his activities either in New Jersey or Ohio, are not in the record and, for purposes of this appeal, will be disregarded. *Page 781 The board held a hearing on the request for a stay, including evidence as to the impact of the closing of the landfill on the community. The board concluded in part: "9. Under these circumstances, where no emergency existed nor was declared, the action of the Director issuing the final findings and order in this case immediately revoking the permits previously issued to Appellant, is not in accordance with law and the action should be vacated. "10. The Board notes that the decision in this case deals solely with a limited legal issue of whether or not the Director can issue a valid final order revoking a permit without complying with the requirements of section 3734.09 of the Revised Code. Because of the narrow issue presented by this appeal we emphasize that we are not deciding the question of whether the substance of the order is lawful and reasonable. In the absence of a finding of emergency or evidence of the existence of an emergency, no final revocation order, such as the one issued in this case, can be effective until the permit holder has been given notice in writing and a reasonable period of time to make or take whatever actions may be necessary to correct or resolve the situation which has prompted the revocation as provided in section 3734.09 of the Revised Code." The board specifically stated in its decision that it addressed only the legal issue of whether the director could revoke a license without compliance with R.C. 3734.09 and that its decision did not address the merits of the director's order, or whether the order was supported by sufficient evidence. Likewise, the only issue before this court is whether R.C.3734.09 applies to revocations pursuant to R.C. 3734.42 and does not concern the issue of whether sufficient evidence was presented to support revocation of Crossbridge's permits or licenses. R.C. 3745.05 sets forth the standard of review for the board when considering an appeal taken from an order of the director and provides: "If, upon completion of the hearing, the board finds that the action appealed from was lawful and reasonable, it shall make a written order affirming the action[;] if the board finds that the action was unreasonable or unlawful, it shall make a written order vacating or modifying the action appealed from. Every order made by the board shall contain a written finding by the board of the facts upon which the order is based. Notice of the making of the order shall be given forthwith to each party to the appeal by mailing a certified copy thereof to each party by certified mail, with a statement of the time and method by which an appeal may be perfected." In Citizens Commt. v. Williams (1977), 56 Ohio App. 2d 61, 10 O.O.3d 91, 381 N.E.2d 661, this court held, at paragraph two of the syllabus: *Page 782 "The Environmental Board of Review, initially, does not stand in the place of the Director of Environmental Protection in considering an appeal and may not substitute its judgment for that of the Director, but may consider only whether his actions were unreasonable or unlawful." This court's scope of review of a decision of the board is set forth in R.C. 3745.06, which provides: "The court shall affirm the order complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it shall reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. * * *" In Robinson v. Whitman (1975), 47 Ohio App. 2d 43, 52, 75 O.O.2d 462, 468, 352 N.E.2d 167, 173, this court stated: "The appeal from an order of the environmental board of review to this court, however, departs from the ordinary pattern in that, be the order from a hearing de novo or one given on an appeal, R.C. 3745.06 provides the rule requiring this court to affirm the order if it is supported by reliable, probative and substantial evidence and is in accordance with law. If the evidence does not meet the prescribed tests, then another disposition of the order becomes necessary." In 1988, the General Assembly passed Am.Sub.H.B. No. 592, which made substantial changes in Ohio's solid waste, hazardous waste and infectious waste laws. Enacted as part of that legislation were R.C. 3734.40 to 3734.47, pertaining to the qualifications of licensees for various types of landfills. In R.C. 3734.40, the policy of the state was set forth in part as follows: "(D) That strict licensing standards will help ensure that members of the waste management industry in this state will continue to maintain standards of professionalism and responsibility; "(E) That it therefore is vital to the interests of this state to prevent either direct or indirect entry into the operations of the off-site solid waste disposal and transfer and the off-site hazardous waste treatment, storage, and disposal, industries [or] persons who are not competent and reliable or who have pursued economic gains in an occupational manner or context violative of the criminal code or civil public policies of this state, and it is to the end of excluding such persons from those industries that the regulatory and investigatory powers and duties provided in sections 3734.41 to 3734.47 of the Revised Code shall be exercised to the fullest extent consistent with law." *Page 783 Pursuant to this declaration of public policy, the Attorney General is required to make extensive background investigations of applicants and provide that information to the director. Upon review of the Attorney General's investigative report, R.C.3734.42(E) provides: "* * * The director shall review the disclosure statement and investigative report to determine whether the statement or report contains information that if submitted with a permit application would require a denial of the permit pursuant to section 3734.44 of the Revised Code. If the director determines that the statement or report contains such information, he mayrevoke any previously issued permit pursuant to section 3734.45 of the Revised Code, or he shall deny any application for a renewal of a permit or license. When the renewal of the license is being performed by a board of health, the director shall instruct the board of health about those circumstances under which the renewal is required to be denied by this section." (Emphasis added.) R.C. 3734.44 sets forth conditions for renewal or issuance of licenses or permits and reasons for denying the licenses or permits. R.C. 3734.45 pertains to revocation of permits or licenses and provides: "Any permit or license may be revoked by the director of environmental protection or board of health for any of the following causes, in addition to other causes for revocation authorized by this chapter[.]" (Emphasis added.) R.C. 3734.46 provides a procedure for the removal of conditions which would preclude an applicant from otherwise being able to obtain a permit or license. At the time Am.Sub.H.B. No. 592 was passed, R.C. 3734.09 provided in part: "* * * The director may suspend, revoke, or deny a permit to operate any hazardous waste facility for violation of any section of this chapter or any rule adopted thereunder. No application for a permit or license to be issued under this chapter shall be denied, and no permit or license issued under this chapter shall be modified, suspended, or revoked, without a written order stating the findings upon which the denial, suspension, modification, or revocation is based. A copy of the order shall be sent to the applicant or permit or license holder by certified mail. Unless an emergency exists requiring immediate action to protect the public health or safety or the environment, no suspension, modification, or revocation of a permit shall be made effective until the permit holder has been given notice in writing and a reasonable period of time to make corrections." In its decision, the board found that the director had failed to comply with R.C. 3734.09 by failing to give Crossbridge notice and that, therefore, his action was not in accordance with law. *Page 784 The director argues that the board erred in finding R.C.3734.09 applicable because the revocation of Crossbridge's permit was mandatory when Scugoza's ownership interest, position as a corporate officer, and past convictions were disclosed; that the intent of the legislature in enacting R.C. 3734.40 to3734.47 was to exclude the application of R.C. 3734.09; and that no purpose would be accomplished by providing notice and a hearing and, to do so, would frustrate the stated intent of the legislature in passing Am.Sub.H.B. No. 592. We disagree. It is presumed that the legislature was familiar with existing legislation when it passed Am.Sub.H.B. No. 592, and laws passed by the legislature are presumed to harmonize with existing statutes on the same subject. State v. Ferguson (1954),96 Ohio App. 297, 54 Ohio Op. 310, 121 N.E.2d 684;In re Application of Latham (1965), 5 Ohio App. 2d 187, 34 O.O.2d 316, 214 N.E.2d 681; and Sentinel Sec.Systems v. Medkeff (1987), 36 Ohio App. 3d 86,521 N.E.2d 7. Thus, we must presume that, when it enacted Am.Sub.H.B. No. 592, the legislature was aware of the language in R.C. 3734.09 that prohibited revocation of a license forany violation of R.C. Chapter 3734 without a written order provided to the license holder setting forth the basis for the revocation and, in the absence of an emergency, permitting the license holder to make corrections. Inasmuch as none of the language in R.C. 3734.40 to 3734.47 excludes either directly or by implication application of the requirements of R.C.3734.09, we must presume the legislature intended it to apply. Appellant argues that the rule of in pari materia andState v. Fremont (1949), 151 Ohio St. 19, 26, 38 Ohio Op. 506, 509,84 N.E.2d 498, 503, are dispositive, relying on the following language: "`* * * Courts have also refused to invoke the rule for the purpose of reading into a later act whole sections of former acts when there was no intimation of such an intent on the part of the legislature.'" The language relied on is taken out of context of both the court's decision and the facts of the case. In Fremont, the state prosecuted a lodge, an unincorporated association, for advertising a lottery involving the sale of tickets and awarding of prizes. One of the issues before the court in Fremont was whether G.C. 13067, which prohibited the advertising of a lottery, could be read in pari materia with later amendments to G.C. 13063 and 13064, which prohibited the sale of lottery tickets or promotion of a lottery only if the lottery was for the defendant's own profit. In discussing application of thein pari materia rule, the court stated, at 26-27, 38 Ohio Op. at 509-510, 84 N.E.2d at 503: "`The rule in pari materia is, of course, applicable only when the terms of the statute to be construed are ambiguous or its significance is doubtful. It is *Page 785 not to be applied to effect a construction contrary to the clearly manifested intent of the legislature. Courts have also refused to invoke the rule for the purpose of reading into a later act whole sections of former acts when there was no intimation of such an intent on the part of the legislature.' "Section 13067, General Code, is clear and unambiguous. Its significance is not doubtful. The General Assembly has nowhere indicated an intent to add the exceptions in Sections 13063 and 13064, General Code, to Section 13067, General Code. Section 13067, General Code, has been the law of this state for many years and is consistent with the constitutional provision (Section 6, Article XV) prohibiting lotteries. * * *" In Bernardini v. Board of Edn. (1979), 58 Ohio St. 2d 1, 4, 12 O.O.3d 1, 2-3, 387 N.E.2d 1222, 1224, the court stated: "When this court has been called upon to give effect to an Act of the General Assembly, a standard of judicial restraint has developed when the wording of the enactment is clear and unambiguous. For example, a statute that is free from ambiguity and doubt is not subject to judicial modification under the guise of interpretation. * * * In ascertaining the legislative intent of a statute, `It is the duty of this court to give effect to the words used [in a statute], not to delete words used or toinsert words not used.' (Emphasis added.) * * * Furthermore, whether an act is wise or unwise is a question for the General Assembly and not this court. * * *" The language of R.C. 3734.09 is clear and unambiguous and applies to any revocation pursuant to R.C. Chapter 3734 and, thus, we must not rely on rules of statutory construction to read into or delete from the statute language that is not there or was not intended. Further, appellant argues that, given the mandatory nature of the revocation provisions in R.C. 3734.40 through 3734.47, there would be no purpose in giving notice or providing the applicant an opportunity to make corrections. Appellant relies in large part on the language in R.C. 3734.44(C) which provides: "* * * If any such individual or business concern was convicted of any of the offenses so enumerated that are felonies, a permit shall be denied unless in the case of an individual five years have elapsed since the individual was fully discharged from imprisonment, probation, and parole for the offense. In determining whether an applicant has affirmatively demonstrated rehabilitation, the director, the hazardous waste facility board, or the board of health shall request a recommendation thereon from the attorney general and shall consider and base the determination on the following factors[.]" *Page 786 Thus, appellant argues that, inasmuch as Scugoza was convicted of an offense in 1989, five years have not elapsed and, therefore, revocation of Crossbridge's license is mandatory. At the outset, we note that R.C. 3734.44 pertains only to the issuance or denial of permits and licenses and is not applicable to a revocation, the issue presented by this appeal, which is addressed in R.C. 3734.45. Further, we disagree revocation under all circumstances is mandatory and not discretionary with the director. As set forth in R.C. 3734.42(E) and 3734.45, supra, which pertain specifically to the revocation, as opposed to the issuance, of licenses, the statutes provide the director may revoke a license. This language is to be contrasted with the provisions in R.C. 3734.42(E) and 3734.44 which state the director shall deny applications for renewal or requests for issuance of a license under certain defined circumstances. In Dorrian v. Scioto Conserv. Dist. (1971), 27 Ohio St. 2d 102, 56 O.O.2d 58, 271 N.E.2d 834, the court held, at paragraph one of the syllabus: "In statutory construction, the word `may' shall be construed as permissive and the word `shall' shall be construed as mandatory unless there appears a clear and unequivocal legislative intent that they receive a construction other than their ordinary usage." The court further stated, at 107-108, 56 O.O.2d at 60-61,271 N.E.2d at 837-838: "The character of a statute, as mandatory or permissive, is commonly determined by the manner in which particular terms used therein are construed. "In determining whether a statute is mandatory or permissive, it is often necessary, as in this case, to trace its use of the terms `may' and `shall.' "The statutory use of the word `may' is generally construed to make the provision in which it is contained optional, permissive, or discretionary * * *, at least where there is nothing in the language or in the sense or policy of the provision to require an unusual interpretation * * *. "The word `shall' is usually interpreted to make the provision in which it is contained mandatory * * *, especially if frequently repeated * * *. "Ordinarily, the words `shall' and `may,' when used in statutes, are not used interchangeably or synonymously. * * * "However, in order to serve the basic aim of construction of a statute — to arrive at and give effect to the intent of the General Assembly — it is sometimes necessary to give to the words `may' and `shall' as used in a statute, meanings different from those given them in ordinary usage * * *, and one may be construed to have the meaning of the other * * *. *Page 787 "But when this construction is necessary, the intention of the General Assembly that they shall be so construed must clearly appear * * * from a general view of the statute under consideration * * *, as where the manifest sense and intent of the statute require the one to be substituted for the other * * *." In enacting the provisions of R.C. 3734.40 through 3734.47, the legislature consciously and deliberately used "may" and "shall" in relation to different actions to be taken by the director. "Shall" is used in conjunction with the issuance or denial of a license or a permit; "may" is used in conjunction with revocation. This indicates a clear intent on the part of the legislature that one action is mandatory and the other is discretionary. Thus, there may be situations where the revocation of a permit or license to operate a landfill could have such an impact on a community that the director might find those circumstances outweigh the benefit to be gained from denying an individual who would otherwise be disqualified from the opportunity to do business in Ohio. Appellant further argues no purpose is to be accomplished by providing notice and an opportunity for corrections to be made by the applicant. Appellant argues that, since revocations are essentially based on conduct of an applicant or one of its owners or an owner, officer or key employee, such action cannot be undone and, unless a period of years passes, there is nothing an applicant could do to correct the pre-existing situation. The notice required by R.C. 3734.09 would provide an applicant an opportunity to contest the accuracy of the Attorney General's investigative report. Here, appellant's two convictions were stipulated by the parties, but this may not always be so. Elementary basic concepts of due process would require providing a party an opportunity to refute what could be inaccurate information before taking away a license to do business. Further, R.C. 3734.46, while pertaining to the issuance and renewal of licenses, provides an opportunity for the applicant to take some steps to sever relationships with the individual that would otherwise cause the applicant to be disqualified. This would appear to indicate the legislative intent that, even given the mandatory nature of the provisions pertaining to issuances of licenses in the first instance, some opportunity exists to correct an otherwise disqualifying circumstance. Where revocation is discretionary, the same opportunity should be available. Here, for example, the applicant is Crossbridge, a corporation, and not Skugoza, and Crossbridge could sever its ties with the disqualified officer or employee. Last, appellant argues that application of R.C. 3734.09 would frustrate the intent and purpose of the legislature in enacting Am.Sub.H.B. No. 592. However, R.C. 3734.09 merely provides that those individuals already holding *Page 788 licenses and permits and presumably already in business with the opportunity to know why the license is to be revoked and to take some action, if possible, to correct the situation or challenge the accuracy of the information that is the basis for the revocation. Nothing in this process would prevent the director from revoking the license in an appropriate situation. Appellant's assignment of error is overruled. Appellee filed a notice of appeal, which was later voluntarily dismissed, and has set forth a cross-assignment of error only to prevent reversal. Inasmuch as we find no error in the decision of the board, we need not address the cross-assignment of error. For the foregoing reasons, appellant's assignment of error is overruled and the decision of the Environmental Board of Review is affirmed. Judgment affirmed. JOHN C. YOUNG and REILLY, JJ., concur. ARCHER E. REILLY, J., retired, of the Tenth Appellate District, was assigned to active duty under authority of Section6(C), Article IV, Ohio Constitution.

2016-07-06 06:36:46.601531+00

O'Donnell

JOURNAL ENTRY AND OPINION Shawn Cooper appeals from a judgment of the common pleas court, entered pursuant to a jury verdict finding him guilty of the lesser but included offense of vehicular homicide and driving under the influence of alcohol, in which the court imposed court costs and an aggregate $2,000 fine payable to the American Cancer Society as part of his sentence. On this appeal, Cooper alleges that the court erred when it imposed the costs and fines because it failed to consider his ability to pay, especially since it had found him indigent for the purposes of appeal, and he urges our court to reverse that portion of his sentence. After careful review, we affirm decision to impose the fines and costs as part of the sentence, but vacate that portion of the judgment ordering the fines to be paid to the American Cancer Society because R.C. 2949.11 requires court-imposed fines to be paid to the county treasury. Accordingly, we remand the matter for correction of the court's entry in this case. The history of the case reveals that, in the early morning hours of December 7, 1999, an intoxicated Cooper left a friend's home in Broadview Heights in order to drive John DeAngelis home. Cooper apparently was traveling southbound on Oakes Road at a high rate of speed and failed to stop at the stop sign at Avery Road. He lost control of his vehicle, which careened seventy feet into a woods and collided with a tree. Cooper's passenger, Mr. DeAngelis, died in this accident. Following investigation and arrest, the grand jury indicted Cooper for aggravated vehicular homicide with a DUI specification and driving under the influence of alcohol. The court conducted a jury trial on April 19, 2000, and following its deliberation, the jury returned a verdict finding Cooper not guilty of aggravated *Page 318 vehicular homicide, but guilty of the lesser but included offense of vehicular homicide with a DUI specification and also guilty of driving under the influence of alcohol, both first degree misdemeanors punishable by penalties of up to six months in jail and fines up to $1,000. On June 29, 2000, the court sentenced him to maximum consecutive six-month jail terms, imposed a lifetime suspension of his driver's license, and ordered him to pay court costs and an aggregate $2,000 fine to a designated charity. His counsel indicated he would designate the American Cancer Society to receive the fine. (See appendix.) Cooper now appeals, raising two assignments of error which we will consider together because they involve common issues of law and fact. These assignments of error state: I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING MR. COOPER, A MISDEMEANANT, TWO THOUSAND DOLLARS AFTER FINDING HIM INDIGENT AND FAILING TO CONSIDER HIS ABILITY TO PAY OR THE ISSUE OF UNDUE HARDSHIP, AS REQUIRED IN R.C. 2929.22(A) AND (F). II. IN ASSESSING COURT COSTS AGAINST SHAWN COOPER AFTER FINDING HIM INDIGENT, THE TRIAL COURT COMMITTED REVERSIBLE ERROR. Cooper contends the court failed to consider his ability to pay the court costs and fines, urging that the trial court had found him indigent for the purposes of this appeal. The state claims that, despite an express invitation from the trial court, Cooper failed to file an affidavit of indigence, and hence, has waived his right to assert this as error on appeal. The issues then presented for our resolution concern whether the court abused its discretion in imposing fines and court costs without considering, pursuant to R.C. 2929.22(A) and (F), Cooper's ability and resources to pay, the nature of the burden imposed, and the hardship to him and his dependents. In addition, we shall address the portion of the order requiring the fines be paid to a charitable organization. We begin our analysis by examining R.C. 2929.22, which relates to assessment of fines and states in relevant part: (A) In determining whether to impose imprisonment or a fine, or both, for a misdemeanor, and in determining the term of imprisonment and the amount and method of payment of a fine for a misdemeanor, the court shall consider the risk that the offender will commit another offense and the need for protecting the public from the risk; the nature and circumstances of the offense; the history, character, and condition of the offender and the offender's need for correctional or rehabilitative treatment; any statement made by the victim under sections 2930.12 to 2930.17 of the Revised Code, if the offense is a misdemeanor specified in division (A) of section 2930.01 of the Revised Code; and the ability and *Page 319 resources of the offender and the nature of the burden that payment of a fine will impose on the offender. (F) The court shall not impose a fine or fines that, in the aggregate and to the extent not suspended by the court, exceed the amount that the offender is or will be able to pay by the method and within the time allowed without undue hardship to the offender or the offender's dependents, or will prevent the offender from making restitution or reparation to the victim of the offender's offense. (Emphasis added.) Further, R.C. 2949.092, which relates to payment of court costs, provides: If a person is convicted of or pleads guilty to an offense and the court specifically is required, pursuant to section 2743.70 or 2949.091 of the Revised Code or pursuant to any other section of the Revised Code, to impose a specified sum of money as costs in the case in addition to any other costs that the court is required or permitted by law to impose in the case, the court shall not waive the payment of the specified additional court costs that the section of the Revised Code specifically requires the court to impose unless the court determines that the offender is indigent and the court waives the payment of all court costs imposed upon the offender. In determining whether to impose a fine for a misdemeanor, R.C.2929.22(A) provides that a sentencing court must consider "the ability and resources of the offender and the nature of the burden that payment of a fine will impose on him." Further, subsection (F) mandates that [t]he court shall not impose a fine or fines that * * * exceed the amount that the offender is or will be able to pay by the method and within the time allowed without undue hardship to the offender or the offender's dependents * * *. We agree with the reasoning utilized by the court in State v. Polick (1995), 101 Ohio App. 3d 428, that R.C. 2929.22(F) imposes an affirmative duty on the trial court to justify a decision to impose a fine in a misdemeanor case relating to the factual existence of the ability to pay. We recognize that the trial court did not consider this issue during the sentencing hearing. However, in our case, the court invited such an inquiry and indicated its willingness to consider waiving the fines upon presentation of an affidavit of indigency from Cooper. In imposing these fines in this case, the following colloquy appears in the transcript: THE COURT: I forgot to give you this form. You are also being fin[e]d $2,000. You need to choose where you would like your fine sent. Mr. Marein, if you would like to approach, have your client sign it, and we will make it part of the record. *Page 320 MR. MAREIN: Yes Judge. THE COURT: Mark, I can't waive a fine on statements on the record, but if you want to file an affidavit of indigency on his — MR. MAREIN: Judge, for purposes of this form, Shawn is going to — he will opt to provide those moneis [sic] to the American Cancer Society, but we are going to discuss the motion of his lack of funds. THE COURT: Fine. There's another section, so just write that. MR. MAREIN: All right. THE COURT: If you want me to consider waiving the fines, please consider filing a[n] affidavit of indigency. MR. MAREIN: I will. (Tr. 1034-1035.) In State v. Childs (1968), 14 Ohio St. 2d 56, the court stated the following in paragraph three of its syllabus: 3. It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. Based on our review of the record, although the court did not consider Cooper's ability to pay at the time it imposed financial sanctions, Cooper waived his opportunity to present this issue to our court because he failed to file the affidavit of indigency or otherwise pursue this matter in the trial court. Accordingly, we reject these assignments of error. Next, we address the court's order specifying that the fines be paid to the American Cancer Society. While we agree with the court that court-imposed fines could benefit worthy charities, the law does not permit court-imposed statutory fines to be paid to designated charitable organizations. Some court have imposed lawful fines in conformity with applicable statutes and later suspended those fines upon receipt of evidence of a voluntary contribution made to a charity; however, a court may not order a statutory fine paid directly to a charitable organization. The law in this regard, R.C. 2949.11, provides: Unless otherwise required in the Revised Code, an officer who collects a fine shall pay it into the treasury of the county in which such fine was assessed, within twenty days after the receipt of the fine, to the credit of the county general fund. The county treasurer shall issue duplicate receipts for the fine, and the officer making the collection shall deposit one of these receipts with the county auditor. (Emphasis added.) *Page 321 This statute mandates that all fines be paid into the county treasury; a trial court therefore does not have the statutory authority to direct payment of a fine to a charitable organization. Accord State v. Short (July 6, 1992), Butler App. No. CA91-04-066, unreported (Once assessed, fines are to be paid into the treasury of the county in which the fine was assessed, to the credit of the county's general fund. We can find no statutory provision which gives a court the discretion to order a contribution to an unnamed county agency in lieu of a fine.). Thus, we are constrained to vacate that portion of the court's order directing payment of the fines to the American Cancer Society, and remand the matter to the trial court to conform its entry with R.C. 2949.11. Judgment affirmed. Matter remanded for conformity of entry in accordance with R.C. 2949.11. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY McMONAGLE, P.J. and MICHAEL J. CORRIGAN, J. CONCUR. __________________________ TERRENCE O'DONNELL, JUDGE *Page 322 *Page 323

2016-07-06 06:36:47.494508+00

ORIGINAL ACTION JOURNAL ENTRY AND OPINION {¶ 1} On December 27, 2005, the petitioner, Anthony Hunter, commenced this mandamus action against the respondent, Judge Kathleen Sutula, to compel her to resentence him in the three underlying cases, State v. Hunter, Cuyahoga County Common Pleas Court Case Nos. CR-415551, 411611 and 411627. For the following reasons, this court, sua sponte, denies the writ. {¶ 2} In March 2002, in Case No. CR-415551, Hunter pleaded guilty to aggravated burglary and felonious assault. The respondent judge sentenced him to ten years for aggravated burglary and eight years for assault with the sentences to run consecutively. In Case No. CR-411611, he pleaded guilty to aggravated burglary with a repeat violent offender specification. The judge imposed ten years for burglary consecutive to ten years for the specification.1 In Case No. CR-411627, Hunter pleaded guilty to receiving stolen property, and the judge sentenced him to nine months. She further ruled that the sentences for the three cases would run concurrent to each other. {¶ 3} Hunter argues that he is entitled to mandamus to compel resentencing because (1) new precedent, United States v. Booker (2005), 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621, and UnitedStates v. Grenoble (C.A. 6, 2005), 413 F.3d 569 renders his sentence void or voidable, (2) his appellate counsel was ineffective for failing to argue allied offenses, (3) the trial court violated his due process rights when it allowed community leaders to speak at his sentencing hearing, and (4) the trial court erred when it sentenced him to the maximum without making the required statutory findings. Moreover, Hunter was on parole when he committed these crimes in 2002, and he now complains that he is serving his sentences for these offenses consecutively to the rest of his original sentence. {¶ 4} The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief and (3) there must be no adequate remedy at law. Additionally, although mandamus may be used to compel a court to exercise judgment or to discharge a function, it may not control judicial discretion, even if that discretion is grossly abused. State ex rel. Ney v. Niehaus (1987),33 Ohio St. 3d 118, 515 N.E.2d 914. Furthermore, mandamus is not a substitute for appeal. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St. 3d 176, 631 N.E.2d 119; State ex rel. Daggettv. Gessman (1973), 34 Ohio St. 2d 55, 295 N.E.2d 659; and Stateex rel. Pressley v. Industrial Commission of Ohio (1967),11 Ohio St. 2d 141, 228 N.E.2d 631, Paragraph Three of the Syllabus. Thus, mandamus does not lie to correct errors and procedural irregularities in the course of a case. State ex rel. TommieJerninghan v. Judge Patricia Gaughan (Sept. 26, 1994), Cuyahoga App. No. 67787. Furthermore, if the relator had an adequate remedy, regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78 Ohio St. 3d 45,1997-Ohio-245, 676 N.E.2d 108 and State ex rel. BoardwalkShopping Center, Inc. v. Court of Appeals for Cuyahoga County (1990), 56 Ohio St. 3d 33, 564 N.E.2d 86. {¶ 5} In the present case Hunter had or has adequate remedies at law which now preclude relief in mandamus. Indeed, Hunter appealed his sentences in State v. Hunter, 2003-Ohio-994, Cuyahoga App. No. 81006 in which he argued, inter alia, the propriety of allowing individuals who were not victims or relatives of victims to speak at the sentencing, the propriety of the maximum and consecutive sentences, effective assistance of counsel and allied offenses. This court rejected all of his arguments and affirmed the sentences. This court further notes that Hunter had or has the remedies of a postconviction relief petition under R.C. 2953.21 and an application to reopen under App.R. 26(B). {¶ 6} Moreover, this court has rejected mandamus as the appropriate remedy for a sentence not in conformity with the sentencing statutes. Santiago v. State of Ohio, Cuyahoga App. No. 84586, 2004-Ohio-3952; Grundlock v. State of Ohio, Cuyahoga App. No. 84135, 2004-Ohio-2352; Dunning v. State of Ohio, (Oct. 14, 2004), Cuyahoga App. No. 84982; and State ex rel. Smith v.Fuerst, Cuyahoga App. No. 86118, 2005-Ohio-3829. Similarly, inJaffal v. Calabrese, Jr., Cuyahoga App. No. 85408,2004-Ohio-6616, this court rejected mandamus as a remedy for sentences which arguably violate the principles announced in federal precedent such as Apprendi v. New Jersy (2000),530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 and Blakely v.Washington (2004), 542 U.S. 296, 124 S. Ct. 2531,159 L. Ed. 2d 403. {¶ 7} Additionally, the petition is defective because it is improperly captioned. Hunter styled this petition as "Anthony Hunter v. Kathleen A Sutula (Judge)." R.C. 2731.04 requires that an application for a writ of mandamus "must be by petition, in the name of the state on the relation of the person applying." This failure to properly caption a mandamus action is sufficient grounds for denying the writ and dismissing the petition.Maloney v. Court of Common Pleas of Allen County (1962),173 Ohio St. 226, 181 N.E.2d 270. Cf. State ex rel. Calloway v.Court of Common Pleas of Cuyahoga County (Feb. 27, 1997), Cuyahoga App. No. 71699; State ex rel. Samuels v. MunicipalCourt (Nov. 22, 1994), Cuyahoga App. No. 67762; and State exrel. White v. Villanueva (Oct. 6, 1993), Cuyahoga App. No. 66009. {¶ 8} Accordingly, the court denies Hunter's application for a writ of mandamus. Costs assessed against relator. 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). Karpinski, J., concurs. McMonagle, J., concurs. 1 These convictions arose from Hunter robbing an eighty year-old woman and on the next day a ninety-one year-old woman in their apartments while he was on drugs.

2016-07-06 06:36:46.512886+00

OPINION Defendant-appellant, Clifford D. Williams, appeals a decision of the Butler County Court of Common Pleas in which the court denied his petition for postconviction relief without holding an evidentiary hearing. We affirm. At a trial conducted January 7 through 17, 1991, a jury found appellant guilty of aggravated murder with specifications and recommended a sentence of death for the murder of cab driver Wayman Hamilton on August 3, 1990. At the same trial, appellant was also convicted of felonious assault with a firearm specification and aggravated robbery with a firearm specification with respect to a shooting and robbery on August 6, 1990 of another victim, Jeff Wallace. These convictions and sentence of death were unanimously affirmed by this court in State v. Williams (Nov. 2, 1992), Butler App. Nos. CA91-04-060 and CA92-06-110, unreported, and by the Ohio Supreme Court in State v. Williams (1995), 73 Ohio St. 3d 153, reconsideration denied,74 Ohio St. 3d 1409. The United States Supreme Court denied certiorari in State v. Williams (1996), 516 U.S. ___,116 S. Ct. 1047. The factual details pertaining to appellant's trial are detailed at length in the decisions of this court and the Supreme Court of Ohio and will not be repeated herein. On September 20, 1996, appellant filed a petition for postconviction relief asserting seventeen claims for relief. On September 24, 1996, the state of Ohio, plaintiff-appellee herein, filed an answer denying the material allegations and moving to dismiss the petition. Appellant filed a response to the State's motion to dismiss, a motion to recuse the trial judge, Judge Anthony Valen, and motions for funds to employ a cultural expert and a ballistics expert. Judge Valen voluntarily recused himself on February 24, 1997 and the matter was reassigned to Judge John R. Moser. On July 14, 1997, the trial court entered a decision and order dismissing the petition without an evidentiary hearing and issued an order denying appellant's motions for funds to employ a cultural expert and a ballistics expert. Appellant sets forth five assignments of error on appeal: Assignment of Error No. 1: THE TRIAL COURT ERRED IN ITS APPLICATION OF THE DOCTRINE OF RES JUDICATA TO SEVERAL OF APPELLANT'S CLAIMS FOR RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 5, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. Assignment of Error No. 2: THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT WILLIAMS AN EVIDENTIARY HEARING AND DISCOVERY ON HIS PETITION FOR POSTCONVICTION RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. Assignment of Error No. 3: THE TRIAL COURT ERRED IN DENYING APPELLANT'S PETITION TO VACATE OR SET ASIDE SENTENCE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 1, 2, 9, 10, AND 16 OF THE OHIO CONSTITUTION. Assignment of Error No. 4: THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTIONS FOR FUNDS FOR EXPERT ASSISTANCE IN VIOLATION OF APPELLANT'S RIGHT GUARANTEED UNDER THE FIFTH, SIXTH, EIGHT, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 1, 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION. Assignment of Error No. 5: THE CUMULATIVE ERROR OF APPELLANT'S SUBSTANTIVE CLAIM MERITS REVERSAL OR A REMAND FOR A PROPER POSTCONVICTION PROCESS. Appellant's petition for postconviction relief alleged seventeen claims for relief. In its well-reasoned opinion, the trial court discussed each of appellant's seventeen claims in detail. State v. Williams, (July 14, 1997), Butler C.P. No. CR90-08-0665, unreported. Inasmuch as we adopt the trial court's opinion in its entirety, we see no need to repeat the trial court's thorough analysis. However, in the interest of clarity, we will briefly discuss each of appellant's seventeen claims for relief. We will first set forth the applicable law dealing with postconviction relief. R.C. 2953.21 provides in pertinent part: (A)(1) Any person convicted of a criminal offense or adjudged a delinquent child and who claims 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 Constitution of the United States may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief. * * * (E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal of the case is pending. A criminal defendant is not automatically entitled to an evidentiary hearing on his postconviction claims. State v. Jackson (1980), 64 Ohio St. 2d 107. The petitioner must show that there are substantive grounds for relief that would warrant a hearing based on the petition, the supporting affidavits, and the files and records in the case. Id. A petition for postconviction relief may be dismissed without an evidentiary hearing when the claims raised are barred by the doctrine of res judicata. State v. Perry (1967), 10 Ohio St. 2d 175. 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 proceedings except on appeal from that judgment, any defense or claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. Id., paragraph nine of the syllabus. There is an exception to the doctrine of res judicata where the petitioner presents competent, relevant and material evidence dehors the record that was not available to the petitioner in time to support the direct appeal. State v. Lawson (1995),103 Ohio App. 3d 307, 315. This evidence must be genuinely relevant, and it must materially advance a petitioner's claim that there has been a denial or infringement of his constitutional rights. State v. Lawson, following State v. Coleman (Mar. 17, 1993), Hamilton App. No. C-900811, unreported. First Claim for Relief Appellant's first claim for relief alleges that Judge Anthony Valen was biased and prejudiced and should have recused himself from the trial. This issue is barred by res judicata as it was raised on direct appeal and was decided adversely to appellant by the Ohio Supreme Court in State v. Williams (1995), 73 Ohio St. 3d 153. State v. Perry (1967), 10 Ohio St. 2d 175, paragraph nine of the syllabus. Second Claim for Relief Appellant's second claim for relief alleges that the prosecution denied him postconviction access to certain items of trial evidence for independent analysis by an expert. Appellant asserts that the state of Ohio interfered with appellant's attempts to investigate and prepare his postconviction petition. In support of this claim, appellant attached to his petition a letter from Luke Haag of Forensic Science Services, Inc., dated September 12, 1996, which states that "[i]f the State's attorney wishes to have his representative present while I examine the physical evidence of this case, it is acceptable to me." Inasmuch as appellant's claim is not a claim affecting the trial court's judgment of conviction or sentence, the claim is not cognizable in postconviction proceedings under R.C. 2953.21. State v. Murnahan (1992), 63 Ohio St. 3d 60. Third Claim for Relief Appellant's third claim for relief alleges that he was denied the effective assistance of trial counsel under the standards established in Strickland v. Washington (1986), 466 U.S. 668,104 S. Ct. 2052, by his trial counsel's failure to present scientific evidence which allegedly exculpated him in the aggravated murder. In support of this claim, appellant presents a report prepared by a firearms expert, Larry M. Dehus, dated December 17, 1990, wherein Dehus outlined his examination of the state's exhibits in question, a .25 caliber cartridge casing from the Wayman Hamilton murder scene and two .25 caliber cartridge casings from the Jeff Wallace shooting scene. At trial, the state presented the expert testimony of firearms examiner David Hall regarding the .25 caliber cartridge casings. The trial court compared Dehus' findings to Halls' testimony and found "virtual agreement on all pertinent aspects of the examination." The trial court found, and we concur, that the evidence offered by appellant in support of his third claim was not genuinely significant and did not materially advance appellant's claim to overcome the res judicata bar. State v. Lawson, 103 Ohio App. 3d 307, 315. Fourth Claim for Relief In his fourth claim for relief, appellant asserts that the trial court erred in denying appellant's request for funds for a mitigation specialist. In support of this claim, appellant attached to his petition an affidavit from Donan L. Hall, a mitigation specialist employed by the Public Defender's Office, and affidavits from family members. The trial court found, and we concur, that this issue is barred by res judicata as it was raised, litigated and determined adversely to appellant on direct appeal. State v. William, 73 Ohio St.3d at 171. Furthermore, the evidence dehors the record does not defeat the application of res judicata because the evidence is cumulative to or alternative to legal arguments presented at trial. State v. Lawson, 103 Ohio App. 3d 307,315. Fifth Claim for Relief In his fifth claim for relief, appellant argues that his trial counsel were ineffective under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, due to an alleged failure to present cultural expert mitigation testimony during the penalty phase of trial. Appellant asserts that a cultural expert would have presented evidence in mitigation as to appellant's culture and environment. In support of this claim, appellant attached to the petition affidavits from himself and from family members detailing appellant's family history. In the instant case, a review of the record reveals that trial counsel obtained an investigation of appellant's background and through a psychiatrist presented evidence of appellant's life through school records, juvenile court records and from appellant's mother and grandmother. Accordingly, the trial court found, and we concur, that a claim for relief in a petition for postconviction relief does not show ineffective assistance of counsel merely because it presents a new expert opinion that is different from the theory used at trial. State v. Combs (1994),100 Ohio App. 3d 90, 102-105. Sixth, Seventh, and Eleventh Claims for Relief In his sixth claim for relief, appellant asserts that his trial counsel rendered ineffective assistance of counsel during voir dire of potential jurors. In his seventh claim for relief, appellant asserts that the trial court's instructions to the jury were ambiguous, misleading and unintelligible. Appellant's eleventh claim for relief asserts that his conviction and sentence are void or voidable because he was required to prove the existence of mitigating factors by a preponderance of the evidence, or because sentencing laws preclude consideration of all mitigating evidence and compel a presumption of the death penalty. Appellant supports these claims with an affidavit prepared by Michael Geis, Professor of Linguistics at the Ohio State University. In his affidavit, Professor Geis critiqued the words and phrases used by defense counsel during the trial. The trial court held that these claims were barred by res judicata because the claims were based on acts or omissions entirely reflected in the record. Therefore, appellant's sixth, seventh and eleventh claims are barred as they could have been but were not raised on direct appeal. State v. Perry, 10 Ohio St. 2d 175. Furthermore, regarding the affidavit of Professor Geis, the trial court found that even if the affidavit was admissible as an expert opinion, it does not constitute evidence dehors the record because the record speaks for itself on the issue. We concur with the trial court's findings and find that appellant's sixth, seventh and eleventh claims are barred by the doctrine of res judicata. Eighth Claim for Relief In his eighth claim for relief, appellant asserts that it was error for the court to dismiss his claim concerning an alleged withholding of exculpatory evidence pursuant to Brady v. Maryland (1963), 373 U.S. 83, 83 S. Ct. 1194. A due process claim under Brady cannot be maintained in the absence of a showing of prejudice, i.e., that the government's action deprived the accused of evidence that was favorable and material. United States v. Valenzuela-Bernal (1982), 458 U.S. 858, 872-873,102 S. Ct. 3440, 3449. The alleged exculpatory evidence offered is the criminal record of the shooting victim, Jeff Wallace. A review of the record reveals that at trial Wallace testified that he had felony convictions for battery and grand theft. Furthermore, Wallace testified that he had used cocaine earlier on the day of the shooting. Accordingly, the trial court found that there was no Brady violation where the information at issue was admitted into evidence at the trial and considered by the trier of fact. We concur with the trial court that appellant has failed to establish sufficient operative facts to demonstrate a Brady violation. Ninth Claim for Relief Appellant's ninth claim for relief asserts that appellate proportionality review as undertaken by Ohio appellate courts is in violation of state and or federal constitutional law. First, this issue is not cognizable in a petition for postconviction relief as it is not a claim affecting the trial court's judgment of conviction or sentence. State v. Murnahan, 63 Ohio St. 3d 60. Secondly, this issue is barred by res judicata as it was raised on direct appeal and determined adversely to appellant in State v. Williams, 73 Ohio St.3d at 173. State v. Perry, 10 Ohio St. 2d 175. Tenth Claim for Relief Appellant's tenth claim for relief asserts that electrocution as a means to carry out a death sentence is cruel and unusual punishment. In support of this proposition, appellant attached to his petition voluminous materials which attempt to illustrate the horrors of execution. However, the Supreme Court has expressly held that execution by electrocution is not cruel and unusual punishment. State v. Coleman (1989), 45 Ohio St. 3d 298,308. Furthermore, this issue could have been raised on direct appeal and is therefore barred by the doctrine of res judicata. State v. Perry, 10 Ohio St. 2d 175. Twelfth and Thirteenth Claims for Relief In his twelfth claim for relief, appellant alleges that the death penalty is disproportionately meted out in Butler County in violation of state and/or federal constitutional law. In support of this claim, appellant attached to his petition statistics compiled by the Public Defender's office of the people on death row and a copy of the 1990 Census. In his thirteenth claim for relief, appellant asserts that the jury selection utilized in Butler County results in juries that are racially biased. In support of his thirteenth claim, appellant cites to the 1990 Census attached as part of claim twelve. Statistics indicative of a disparate impact alone are insufficient to establish a claim of discriminatory enforcement of the death penalty; rather, the minority defendant must show that the decision makers in his case acted with discriminatory purpose. State v. Loza (Oct. 13, 1997), Butler App. No. CA96-10-214, unreported, following McCleskey v. Kemp (1987), 481 U.S. 279,297, 107 S. Ct. 1756, 1770. The trial court found, and we concur, that appellant failed to present evidence of intentional racial discrimination in his trial and that the claims are not supported by sufficient operative facts. State v. Lawson, 103 Ohio App. 3d 307. Fourteenth Claim for Relief In his fourteenth claim for relief, appellant argues that his trial counsel were ineffective under the standards of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, for failing to investigate alleged racism in Butler County in its enforcement of the death penalty. In support of this claim, appellant attached affidavits from attorneys regarding the usual composition of Butler County juries and cited to death penalty statistics and the 1990 Census cited to in claim twelve. The trial court found, and we concur, that the appellant has failed to establish sufficient operative facts demonstrating a lack of effective assistance of trial counsel. Fifteenth Claim for Relief Appellant's fifteenth claim for relief asserts that the trial court erred in permitting the prosecution to argue that the nature and circumstances of the offense was aggravating rather than mitigating. This claim was raised and determined adversely to appellant on direct appeal in State v. Williams,73 Ohio St.3d at 173, and is therefore barred by res judicata. State v. Perry,10 Ohio St. 2d 175. Sixteenth Claim for Relief Appellant's sixteenth claim for relief asserts that the death penalty is without penological justification. This claim was raised and determined adversely to appellant on direct appeal in State v. Williams, 73 Ohio St.3d at 173, and is therefore barred by res judicata. State v. Perry, 10 Ohio St. 2d 175. Seventeenth Claim for Relief In his seventeenth claim for relief, appellant seeks to void his convictions or death sentence based on the cumulative effect of errors and omissions as presented in the petition. In State v. DeMarco (1987), 31 Ohio St. 3d 191, the Supreme Court recognized the doctrine of cumulative error. Pursuant to this doctrine, a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial, even though each of numerous instances of trial court error does not individually constitute cause for reversal." State v. Garner (1995), 74 Ohio St. 3d 49, 64. The doctrine of cumulative error is not applicable to the case at bar as we have found no merit in appellant's claims of trial court error. Pursuant to our discussion of appellant's seventeen claims, we find appellant's assignments of error are not well-taken and we affirm the decision of the trial court. KOEHLER and POWELL, JJ., concur.

2016-07-06 06:36:46.892692+00

OPINION {¶ 1} This is an appeal from the judgment of the Franklin County Court of Common Pleas allowing discovery of certain documents from Mount Carmel East Hospital ("Mt. Carmel"). For the reasons that follow, we affirm in part and reverse and remand in part. {¶ 2} On December 26, 1995, Jane Doe went to Mt. Carmel's emergency room for treatment for influenza. Dr. Andrew Schneider treated Ms. Doe and took a history, performed a limited exam and prescribed fever and pain medication to her. Dr. Schneider prepared a medical report from the visit and in that report he stated that Ms. Doe did not have female breast tissue and had male genitalia. Ms. Doe returned to Mt. Carmel's emergency room on January 18, 1996, for treatment of mouth pain. Dr. Schneider again treated Ms. Doe and prepared a second report. The second report stated that Ms. Doe was a cross-dresser and was actually a man even though she claimed to be a woman. {¶ 3} In September 1996, Ms. Doe again returned to Mt. Carmel's emergency room and was treated by Dr. Mark Pesa. Following the exam by Dr. Pesa, Ms. Doe spoke with her treating physician. The treating physician informed Ms. Doe that Dr. Pesa thought she (Ms. Doe) was a man, presumably because of Dr. Schneider's reports. Thereafter, Ms. Doe went to Mt. Carmel and lodged a complaint. {¶ 4} Further, in 1995, Ms. Doe filed a workers' compensation claim for carpal tunnel syndrome with her employer, ATT corporation. During the course of the claim, ATT requested that Ms. Doe execute authorizations to obtain her medical records, to which she complied. In early 1997, Mt. Carmel forwarded Ms. Doe's medical records to ATT. ATT subsequently confronted Ms. Doe about the statements contained in Dr. Schneider's reports regarding her being a man and a cross-dresser. Ms. Doe alleges that she was subjected to humiliation, harassed and forced out of her job after nearly 30 years with the company. On October 16, 1997, Ms. Doe ("plaintiff") commenced this action against Mt. Carmel, Dr. Schneider and Mt. Carmel Health Systems and asserted, among other things, a claim of negligent credentialing. {¶ 5} On November 16, 1998, plaintiff requested that Mt. Carmel produce copies of any documentation used by Mt. Carmel relating to the credentialing of Dr. Schneider as well as copies of all reports/complaints filed against Dr. Schneider by any patient, employee, physician or any other individual. Mt. Carmel objected citing the peer review privilege under R.C. 2305.251 (now 2305.252).1 In February 2001, plaintiff filed a motion to compel the production of the original complaint filed against Dr. Pesa. Plaintiff filed a second motion to compel the production of Dr. Schneider's credentialing file. Mt. Carmel opposed both motions and filed motions for a protective order. {¶ 6} The trial court rendered an opinion and ordered the production of the documents in dispute for purposes of conducting an in camera inspection and to determine whether the privilege applied to any of the documents. The trial court then determined that plaintiff was entitled to certain documents. The trial court separated the documents into two envelopes, one containing "documents to be disclosed" and the other containing "documents not to be disclosed." The trial court did not redact any patient names from the documents disclosed to plaintiff's counsel. Mt. Carmel filed the instant appeal. {¶ 7} Mt. Carmel asserts the following assignments of error: I. The trial court erred to the prejudice of Mount Carmel by releasing privileged documents to Plaintiff. II. The trial court erred when it conducted an in camera inspection of privileged documents. III. The trial court erred when it conducted an in camera inspection of privileged documents when plaintiff's request was limited solely to documents not otherwise available from an original source. {¶ 8} Initially, we find the trial court's order granting plaintiff's motion to compel, in part, is a final appealable order. R.C. 2505.02(B) states that an order is final and may be reviewed, affirmed, modified or reversed, when it is one of the following: (4) An order that grants or denies a provisional remedy and to which both of the following apply: (a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy. (b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action. A provisional remedy is defined as "a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privilegedmatter, or suppression of evidence." R.C. 2505.02(A)(3). (Emphasis added.) {¶ 9} Here, the issue is whether the trial court erroneously ordered the disclosure of Mt. Carmel's "peer review" documents. As stated above, we find that the trial court's order is final and appealable. To hold otherwise would not allow meaningful review of whether the documents are in fact privileged. Nesterv. Lima Mem. Hosp. (2000), 139 Ohio App. 3d 883, 885. * * * [O]nce privileged information is disclosed there would be no way for it to be made private once again. Finding information to be privileged and not subject to an exception allowing for its disclosure after the fact clearly does not afford the appealing party a meaningful or effective remedy. * * * 2 Accordingly, we turn our attention to the assignments of error asserted by Mt. Carmel. {¶ 10} We address the second and third assignments of error first. Mt. Carmel takes issue with the trial court's threshold decision to conduct an in camera inspection as Mt. Carmel maintains the subject documents are privileged. Contrary to Mt. Carmel's contention, the Ohio Supreme Court reaffirmed a trial court's inherent authority to control discovery in State ex rel.Grandview Hosp. Med. Ctr. v. Gorman (1990), 51 Ohio St. 3d 94. In Gorman, the plaintiff alleged that the hospital negligently approved the credentials of a doctor. The issue was whether the trial court had authority to conduct an in camera inspection of hospital records to determine whether the documents were statutorily privileged under R.C. 2305.251. Id. at 94-96. The court recognized the extensive privilege accorded to hospital committee proceedings and records for purposes of peer review. Id. at 95. The court also recognized an exception to that privilege for documents and information or records "otherwise available" from "original" sources. Id. at 96. The court stated that this was a "major" exception. Id. {¶ 11} The court concluded that the trial court must sometimes conduct an in camera inspection to determine if the privilege in fact applies and to which documents it applies. Id. The court stated: * * * Faced with this claim of privilege, and its exception, [the trial judge] clearly had authority to inspect the documents, in camera, to determine if and how the privilege applied and to separate out nonprivileged portions. Applying this R.C. 2305.251 privilege to actual documents is not necessarily easy. An in camera inspection is only a minimal first step. * * * Id. at 96. {¶ 12} The court also cited Henneman v. Toledo (1988),35 Ohio St. 3d 241. In that case, Justice Douglas stated the following with regard to an executive privilege: In camera inspection of the documents by the trial judge is the most appropriate method of dealing with claims of executive privilege. * * * By conducting such an inspection in chambers away from the jury and without the presence or participation of counsel for either party, the trial judge may make the necessary determination without compromising the confidentiality of any information he finds to be privileged. Gorman, quoting Henneman. (Citations omitted.) {¶ 13} Mt. Carmel maintains the documents plaintiff sought were privileged and not available from the original source under R.C. 2305.251. Therefore, the trial court's inspection was not warranted. We disagree. We find that based on Gorman, the trial court was well within its discretion in conducting an in camera inspection. Just as in Gorman, the plaintiff here sought records that were potentially subject to the statutory privilege under R.C. 2305.251. The most appropriate way to determine if the privilege applied and to what documents it applied, was to conduct an in camera inspection. Trangle v. Rojas,150 Ohio App. 3d 549, 556, 2002-Ohio-6510 (it is incumbent upon the trial court to hold an in camera inspection of documents or records to determine if such documents or records are discoverable or privileged under R.C. 2305.251; failure to do so constitutes an abuse of discretion). There was no compromise to the confidentiality of any information the trial court found to be privileged. Therefore, the trial court did not err.3 Accordingly, Mt. Carmel's second and third assignments of error are overruled. {¶ 14} In their first assignment of error, Mt. Carmel argues the trial court erred to the prejudice of Mt. Carmel by releasing privileged documents to plaintiff. Mt. Carmel argues that these documents are privileged under R.C. 2305.24, 2305.25 (now2305.251),4 and 2305.251 (now 2305.252). The former version of R.C. 2305.24 provided in pertinent part "[a]ny information, data, reports, or records made available to a quality assurance committee or utilization committee of a hospital * * * are confidential and shall be used by the committee and the committee members only in the exercise of the proper functions of the committee." Former R.C. 2305.251 provided the following: Proceedings and records of all review committees described in section 2305.25 of the Revised Code shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional, a hospital, a long-term care facility * * * arising out of matters that are the subject of evaluation and review by the committee. No person in attendance at a meeting of a review committee or serving as a member of a review committee shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings of the committee or as to any finding, recommendation, evaluation, opinion, or other action of the committee or a member thereof. * * * {¶ 15} However, there is an exception to the privilege stated as follows: * * * Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented during proceedings of a committee nor should any person testifying before a committee or who is a member of the committee be prevented from testifying as to matters within the person's knowledge, but the witness cannot be asked about the witness's testimony before the committee or opinion formed by the witness as a result of the committee hearing. Id. {¶ 16} Although the trial court conducted an in camera inspection of the documents in dispute and allowed disclosure of certain documents to the plaintiff, the trial court did not articulate in its final order its reasons for the decision. The court's first opinion dated on or about January 28, 2002, addresses the parties' arguments but ultimately orders production for purposes of the in camera inspection. The second opinion is more akin to an order wherein the court states it separated the documents and placed them in the applicable envelopes, and sealed the documents for purposes of appeal. However, in neither opinion does the court state its reasoning for determining which documents were privileged or whether an exception to the privilege applies. If the court relied upon the "original source" exception for some of the documents and not others, neither opinion demonstrates how the court came to that conclusion, specifically how the documents were available from the original source. Therefore, the court finds that it cannot meaningfully address the first assignment of error. Accordingly, the court finds it necessary to reverse and remand to the trial court as to this assignment of error. On remand, the trial court should state its reasons for distinguishing discoverable and non-discoverable documents and if a privilege applies, and whether there is an applicable exception to that privilege. Accordingly, the first assignment of error is sustained in part and this matter is remanded to the trial court for further proceedings consistent with this opinion. {¶ 17} Based on the foregoing, the second and third assignments of error are overruled. The first assignment of error is sustained in part and the judgment of the Franklin County Court of Common Pleas is reversed and remanded with instructions. Judgment affirmed in part, reversed in part and cause remanded with instructions. Lazarus, P.J., and Sadler, J., concur. 1 Former R.C. 2305.251 is now 2305.252, effective April 9, 2003. There are various changes in the new version; however, because the trial court's decision was rendered on April 7, 2003, under former R.C. 2305.251, that version is the one referenced and relied upon in this opinion. 2 As a side note, the current version of R.C. 2305.252, which replaced R.C. 2305.251, specifically states that an order by a court to produce the records or proceedings described in this section, for either discovery or use at trial, is a final order. 3 Mt. Carmel acknowledges that the trial court has authority to conduct an in camera inspection under Gorman. However, Mt. Carmel asserts the second and third assignments of error to preserve the issue for appeal to the Ohio Supreme Court. Mt. Carmel maintains that the Gorman case is incorrect. 4 Former R.C. 2305.25 provided in part "[n]o hospital, * * * and no individual who is a member or employee of any of the following committees shall be liable in damages to any person for any acts, omissions, decisions, or other conduct within the scope of the functions of the committee: (A) A utilization review committee, quality assurance, or tissue committee of a hospital * * *."

2016-07-06 06:36:47.171597+00

DECISION AND JUDGMENT ENTRY {¶ 1} Defendant-Appellant, Katie Alleman, appeals the trial court's judgment sentencing her to thirty days in jail for violating previously imposed community control sanctions. At her original sentencing hearing, the court notified Appellant that a violation could result in a sentence of "up to six months" and a fine "up to a thousand dollars." Appellant contends that the trial court failed to comply with R.C. 2929.25(A)(3) by failing to give her the statutorily required warnings at the original sentencing hearing. Specifically, Appellant contends that the trial court failed to advise her of the specific jail term it would impose for a community control violation. Because of this failure, Appellant asserts that the trial court cannot impose a jail term as a sanction, urging us to apply the reasoning inState v. Brooks, 103 Ohio St. 3d 134, 2004-Ohio-4746,814 N.E.2d 837 to reach that conclusion. {¶ 2} However, we have previously held otherwise in State v.McDonald, Ross App. No. 04CA2806, 2005-Ohio-3503, State v.Smittle, Ross App. No., 05CA2827, 2005-Ohio-3577, State v.Maxwell, Ross App. No. 04CA2811, 2005-Ohio-3575, City ofChillicothe v. Hough, Ross App. No. 05CA2817, 2005-Ohio-4108, and most recently, State v. Taylor, Ross App. No. 05CA2852,2006-Ohio-136. Here, unlike the felony statutes, nothing in the misdemeanor statutes prohibits a court from imposing a jail term upon a community control violator if the court did not notify the defendant at the original sentencing hearing of the specific jail term that it would impose for any violations. The misdemeanor statute only requires the court to give the defendant notice that it can "[i]mpose a definite jail term from the range of jail terms authorized * * *." R.C. 2929.25(A)(3)(c). The notice given by the trial court below satisfied that requirement. Therefore, we affirm the trial court's judgment. {¶ 3} Appellant also argues that the trial court failed to provide the notices as required by R.C. 2929.25(A)(3)(a) and (b), which serve to notify defendants that the court may: (a) impose a longer time under the same community control sanction if the total time under all of the offender's community control sanctions does not exceed the five-year limit specified in division (A)(2) of that section, and (b) impose a more restrictive community control sanction under section 2929.26,2929.27, or 2929.28 of the Revised Code. We agree with Appellant that the trial court failed to provide these notices; however, this failure is harmless error, in light of the fact that neither of these sanctions was imposed as a result of the violation.1 {¶ 4} Accordingly, we affirm the decision of the trial court. 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 Chillicothe Municipal 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. Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion. 1 All parties below should, however, recognize that in the event of a future community control violation, the trial court cannot impose sanctions under R.C. 2929.25(A)(3)(a) or (b) since Appellant was not warned at her original sentencing hearing that such sanctions could be imposed.

2016-07-06 06:36:47.208082+00

JOURNAL ENTRY AND OPINION Plaintiffs-appellants Richard Carr and Gary Love appeal from the judgment of the trial court following a jury verdict in favor of the defendant-appellee Preferred, Inc. arising out of plaintiffs' intentional tort claim against their employer Preferred. Plaintiffs claim that the trial court erred in its instructions to the jury and seek a new trial. We find no error and affirm. On July 28, 1994, plaintiffs were involved in a single-vehicle truck accident while employed by Preferred. Plaintiff Carr was driving Preferred's thirty-five foot flat-bed truck when he claimed the brakes failed, forcing him to drive into a curb to stop the truck. Plaintiff Love was a passenger in the cab of the truck at the time. Both men claimed injuries as a result of the alleged intentional tort of Preferred in requiring them to operate the truck with faulty brakes. Plaintiffs assert that Preferred knew the brakes on the truck were unsafe, yet ordered plaintiffs to drive it to Canton anyway. Defendant, on the other hand, asserts that it had no knowledge of any problem with the brakes, that the brakes were found to work normally after the accident and that plaintiffs had plenty of opportunity to stop driving prior to the accident if the brakes were a problem. On the day of the accident, plaintiffs were assigned by their employer, Preferred, to transport equipment via truck from Cleveland to Canton. Upon initially operating the truck in Preferred's shop yard, Carr noticed that the brake petal was extremely soft. He then examined the truck and found that the brake fluid reservoir of the truck was bone dry. He informed the foreman, Michael Myers, of this condition and requested and received some brake fluid. The reservoir was filled and Carr observed that the brakes began operating normally. Carr then requested permission to take the truck to a gas station to get gas and have the brakes examined before going to Canton. Carr claims that Myers denied his request and instructed Carr to have the truck filled with gas at another station near Southgate Shopping Center where they were to make a stop to pick up equipment on the way to Canton. Plaintiffs drove to Southgate, picked up the equipment and then stopped at the gas station and fueled the truck. During this time, the brakes functioned normally. Upon leaving the gas station, Carr drove the truck down Warrensville Center Road, heading towards the entrance ramp of I-480. As the truck approached a yellow traffic light near the entrance ramp, Carr applied the brakes to stop the truck, but the brakes went all the way down and he was unable to stop the truck. Carr was forced to drive the truck onto the entrance ramp and onto I-480. At that point, Carr decided to drive the truck westbound on I-480 to the next exit (Lee Road) and to take the truck back to Preferred's shop yard. While on I-480, Carr noticed that the brakes were catching. Carr drove the truck to the Lee Road exit ramp which had a steep downgrade. As the truck entered the ramp, Carr tested the brakes but they again went all the way down to the floor and he was unable to stop the truck, which was gaining momentum. Carr observed traffic stopped at the light at the bottom of the ramp so he steered the truck onto a grassy area along side of the ramp in an effort to slow the truck. After this failed, Carr decided in order to keep from hitting the cars waiting at the upcoming intersection, to steer the truck down a drainage ditch and through a chain link fence. The truck continued into the intersection until Carr turned it into the curb where it finally came to rest. As a result of the accident, the windshield on the passenger side of the truck was cracked and the fiberglass fenders were cracked. Mark Roth, a certified mechanic, examined the truck at the scene shortly after the accident. He visually inspected the brakes and found them to be working properly. He then drove the truck for approximately one-half to three-quarters of a mile to his repair shop, during which the truck's brakes operated normally. At the shop, Roth performed a complete inspection of the truck's braking system which revealed no defects, only normal wear and tear. According to Roth, the truck had ample braking capacity at the time of the accident. Shortly after the accident, Thomas Michael Miller, Vice President of Preferred, recorded a videotape of the route taken by Carr prior to the accident in order to refamiliarize himself with the area and to look for available places along the route where the truck could have been safely stopped or pulled off the road. This video was played before the jury. At the close of the evidence, the trial court charged the jury. Immediately thereafter, the trial judge called the attorneys for both parties to sidebar to see if there were any additions or corrections needed to the instructions. Plaintiffs' counsel requested that the instruction for foreseeability in Ohio Jury Instructions 7.13 be given. However, the court denied this request finding that the instruction went to a negligence issue, not employer intentional tort. Plaintiffs' counsel also requested an instruction on punitive damages. But the court, in its discretion, concluded that the facts of this case did not support a charge of punitive damages and denied the request. We will address plaintiffs' assignments of error in the order presented. I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT INSTRUCTED THE JURY ON REMOTE CAUSE. In their first assignment of error, plaintiffs assert that the trial court committed plain error when it instructed the jury on remote cause because such an instruction was not applicable to the facts of this case. However, the record reflects that plaintiffs never objected to the instruction on remote cause. Even after the trial court invited both parties to sidebar to see if there were any additions or corrections needed to the instructions, plaintiffs still failed to raise any issue regarding the remote cause instruction. When a party fails to object to the giving of or failure to give a jury instruction before the jury retires to consider a verdict, the party may not assign as error the giving of or failure to give such instruction. Goldfuss v. Davidson (1997), 79 Ohio St. 3d 116,121; Cleveland Elec. Illum. Co. v. Astorhurst Land Co (1985), 18 Ohio St. 3d 268, 273; Schade v. Carnagie Body Co. (1982),70 Ohio St. 2d 207. Indeed, Civ.R. 51(A) could not be more explicit: On appeal, a party may not assign as error the giving or the failure to give any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury. Plaintiffs rely on the doctrine of plain error to excuse the failure to object to the remote cause instruction. However, [i]n appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself. Goldfuss, supra, at syllabus. Here, we do not find the circumstances in this case to be exceptional to warrant the application of the plain error doctrine in favor of a party who has waived objection to the instruction. Ordinarily, requested jury instructions should be given if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach a different conclusion sought by the specific instruction. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St. 3d 585, 591. Moreover, where there is sufficient evidence relating to an essential issue to permit reasonable minds to reach different conclusions on that issue, it is the duty of the trial court to submit that issue to the jury. Bostic v. Connor (1988), 37 Ohio St. 3d 144, 147. Plaintiffs' employer intentional tort claims against Preferred are based upon their assertions that defendant's acts or omissions were the proximate cause of plaintiffs' injury. In order to prove their employer intentional tort claims, plaintiffs must establish that Preferred's acts or omissions were the proximate cause of their injuries. Preferred is not responsible for plaintiffs' injuries if its alleged misconduct was only a remote cause and not the proximate cause of the injuries. We find at the least that there was sufficient evidence in the record to permit reasonable minds to conclude that a cause other than the brakes may have been the proximate cause of the accident. Roth, a certified mechanic, testified at trial that immediately after the accident, he drove the truck for approximately one-half to three-quarters of a mile from the scene of the accident to his repair shop during which the truck's brakes operated normally. He then performed a complete inspection of the braking system which revealed no defects, only normal wear and tear. Roth further testified that the truck had ample braking capacity on the day of the accident. Plaintiff Carr asserts that the truck's brakes failed both at the yellow traffic light near the I-480 entrance ramp and at the Lee Road exit ramp where the accident occurred. However, there is also evidence that after the truck failed to stop at the traffic light, Carr decided to continue to operate the truck onto the highway. He accelerated while on the highway and then entered the steeply downgraded exit ramp with full knowledge that the brakes had failed just minutes before. In addition, the video taken by Mr. Miller which was played for the jury revealed several available areas after the first alleged brake failure where Carr could have safely stopped the truck or pulled it off of the road. Thus, we find that this evidence was sufficient for reasonable minds to differ as to whether the truck's brakes or plaintiff Carr's own actions was the proximate cause of the accident. Therefore, the trial court did not commit plain error in instructing the jury on remote cause. Assignment of Error I is overruled. II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO INSTRUCT THE JURY ON FORESEEABILITY. In their second assignment of error, plaintiffs assert that the trial court committed reversible error when it denied their request to give the jury the foreseeability instruction set forth in O.J.I. 7.13. Plaintiffs claim that once the trial court instructed the jury on remote cause, it was incumbent upon the trial court to instruct the jury on foreseeability. Plaintiffs' requested instruction in O.J.I. 7.13 states: 7.13 Foreseeability 1. GENERAL. In deciding whether ordinary care was used, you will consider whether the defendant (either party) ought to have foreseen under the circumstances that the natural and probable result of an act or failure to act would cause some (injury) (damage). 2. TEST. The test for foreseeability is not whether he (they) should have foreseen the (injury)(damage)(precisely)(exactly) as it happened to the specific (person)(property). The test is whether under all the circumstances a reasonably (cautious) (careful) (prudent) person would have anticipated the (injury) (damage) was likely to result to (someone) (something) from the act or failure to act. First, we note that the giving of jury instructions is within the sound discretion of the trial court and will not be disturbed on appeal unless the record affirmatively demonstrates an abuse of discretion. Prejean v. Euclid Bd. of Educ. (1997), 119 Ohio App. 3d 793,804-805, citing State v. Wolons (1989), 44 Ohio St. 3d 64. The term abuse of discretion connotes more than an error of law or judgment, it implies that the court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983),5 Ohio St. 3d 217, 219. In considering the appropriateness of an instruction, a reviewing court must view the instructions as a whole. Atkinson v. Internatl. Technegroup, Inc. (1995), 106 Ohio App. 3d 349, 365. However, the record reflects that plaintiffs failed to provide that portion of the transcript which included the jury instructions. The only portions of the transcript provided by plaintiffs were of part of the testimony and of the discussion between the judge and the parties after the instructions were given. These portions of the transcript do not provide this Court with a means of determining whether or not the trial court adequately conveyed the law to be applied in the case as a whole. We have no way of knowing what instruction was given by the trial court regarding remote cause. Without the opportunity to examine the instructions actually given by the trial court, we have no choice but to presume regularity in the proceedings below. We also find that, even if the plaintiffs had provided this Court with an adequate record, we agree with Preferred that the requested instruction had no place in this employer intentional tort action. The instruction at issue is contained in the negligence section (Chapter 7: Negligence) of the Ohio Jury Instructions. But, plaintiffs have no claim against Preferred sounding in negligence. Plaintiffs assert that the applicable standard in this case is whether under all the circumstances a reasonably, cautious, careful and prudent person would have anticipated that injury was substantially likely to result to Plaintiffs from the act or failure to act. Contrary to plaintiffs' assertion, the well established standard in an employer intentional tort action requires the employee to prove (1) knowledge by the employer of the existence of a dangerous condition, (2) knowledge by the employer that if the employee is subjected by his employment to the dangerous process, procedure, or condition, then harm to the employee will be a substantial certainty, and (3) the employer, under such circumstances and with such knowledge, acted to require the employee to continue to perform the dangerous task. Hannah v. Dayton Power Light Co. (1998), 82 Ohio St. 3d 482, 488, citing Van Fossen v. Babcock Wilcox Co. (1988), 36 Ohio St. 3d 100, paragraph five of the syllabus. Thus, the applicable standard in this case is not whether the injuries were foreseeable, rather, it is whether the employer had actual knowledge of the danger and that the injuries were substantially certain to occur. It is clear that the instruction on foreseeability would have been misplaced in this employer intentional tort case. Therefore, we find that the trial court did not abuse its discretion in denying plaintiffs' request to include it. Assignment of Error II is overruled. It is ordered that appellee recover of appellants 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 Court of Common Pleas to carry this judgment into execution. DYKE, A.J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER, JUDGE

2016-07-06 06:36:47.275957+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} Appellants Judith A. Kukla, John Kukla, and Kirsti Chait appeal from the Medina County Court of Common Pleas, which ruled in favor of Appellees Field Energy Services, Inc., Jeremy Simcox, and Dennis Jungbluth. This Court affirms. I. {¶ 2} Ms. Kukla was driving on a public road at approximately 50 mph, with Ms. Chait in the car. Meanwhile, Mr. Simcox was dragging some large pipes across the road with a backhoe when the pipes broke loose and scattered on the road. Ms. Kukla came upon these pipes, swerved to avoid them, and flipped the car. Appellants Ms. Kukla and Ms. Chait were injured. {¶ 3} Appellants sued. Appellees denied liability and asserted comparative negligence. The case proceeded to a trial, with its attendant conflicting testimony and expert evidence. A jury found for Appellees, concluding that they were not liable. Appellants appealed, asserting three assignments of error. II. First Assignment of Error "THE TRIAL COURT ERRED IN FAILING TO GIVE JURY INSTRUCTIONS ON COMPARATIVE NEGLIGENCE." {¶ 4} Appellants concede that they did not request a jury instruction on comparative negligence, but assert that because R.C. 2315.19(B) mandates such an instruction, the trial court erred in failing to give it and, due to that error, the judgment must be vacated and a new trial ordered. This Court disagrees. {¶ 5} "On appeal, a party may not assign as error the giving or the failure to give any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection." Civ.R. 51(A). See, also, Schade v. Carnegie BodyCo. (1982), 70 Ohio St. 2d 207, paragraph one of the syllabus. In the present case, Appellants admit that they did not object to the trial court's failure to give a comparative negligence instruction. Therefore, on its face, this assignment of error lacks merit. {¶ 6} Appellants argue that R.C. 2315.19(B)'s mandatory language (i.e., the use of the word "shall") imposes on the trial court an unavoidable duty1 to give the jury a comparative negligence instruction, so the failure to request an instruction and the limitation set out by Civ.R. 51 are immaterial. Appellants are incorrect in this presumption. In fact, Civ.R. 51 supersedes the statute. See Civ.R. 51, Staff Notes to the 2005 Amendments ("The Modern Courts Amendment, art. IV, § 5(B), of the Ohio Constitution, provides that `[a]ll laws in conflict with [valid Civil Rules] shall be of no further force or effect after such rules have taken effect.'" (Edits in original.)). See, also,Rockey v. 84 Lumber Co. (1993), 66 Ohio St. 3d 221, 224-25 ("The Ohio Rules of Civil Procedure, which were promulgated by the Supreme Court pursuant to Section 5(B), Article IV of the Ohio Constitution, must control over subsequently enacted inconsistent statutes purporting to govern procedural matters."). This assignment of error is overruled. Second Assignment of Error "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ALLOWING DR. UHRICH'S VIDEOTAPE TO BE PRESENTED TO THE JURY." {¶ 7} Appellants allege that the trial court erred by admitting a videotape reenactment of the accident, because the reenactment was so dissimilar to the actual circumstances that it necessarily confused and misled the jury. Appellants argue that the weather was different (i.e., shadows and visibility), the time of year was different (i.e., angle of the sun), and the driver was aware of the obstruction before beginning the reenactment (i.e., unsurprised). Appellants conclude that these differences rendered the videotaped reenactment inadmissible and prejudicial, so as to warrant a new trial. This Court disagrees. {¶ 8} "[I]t is within the sound discretion of the trial judge to admit or reject evidence of experiments and, absent an abuse of discretion, reviewing courts will not interfere with that decision." Vogel v. Wells (1991), 57 Ohio St. 3d 91, 95, citingSt. Paul Fire Marine Ins. Co. v. Baltimore Ohio RR. (1935),129 Ohio St. 401, at paragraph two of the syllabus. An abuse of discretion is more than an error of law or judgment, but instead, it is a finding that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983),5 Ohio St. 3d 217, 219. Under this standard of review, an appellate court may not merely substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd. (1993),66 Ohio St. 3d 619, 621. {¶ 9} "It is settled that experiments such as this reconstruction must be performed under conditions substantially similar to the occurrence in issue. However, dissimilarities, when not so marked as to confuse and mislead the jury, go to the weight rather than the admissibility of the evidence." (Edits omitted.) Vogel, 57 Ohio St.3d at 94, citing St. Paul Fire Marine, 129 Ohio St. at paragraph one of the syllabus. The present dissimilarities, even as alleged by Appellants, are not so inescapably confusing or misleading as to make the entire reenactment dissimilar. Instead, these alleged dissimilarities go to the credibility (weight) of the reenactment, which Appellants could have challenged through cross examination or contradictory evidence. See Vogel, 57 Ohio St.3d at 95. We conclude that the trial court acted within its discretion. This assignment of error is overruled. Third Assignment of Error "THE JUDGMENT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." {¶ 10} Appellants allege that the verdict was against the manifest weight of the evidence. An appellant bears the burden of affirmatively demonstrating an error on appeal and substantiating arguments in support. State ex rel. Montgomery v. Gold, 10th Dist. Nos. 04AP-863 04AP-873, 2006-Ohio-943, ¶ 51-52, citingState ex rel. Fulton v. Halliday (1944), 142 Ohio St. 548. "[F]ailure to comply with the rules governing practice in the appellate courts is a tactic which is ordinarily fatal." Kremerv. Cox (1996), 114 Ohio App. 3d 41, 60. {¶ 11} App.R. 16(A)(7) requires an appellant to cite to the "parts of the record on which appellant relies." In the present appeal, Appellants failed to include any citations to the record as support for this assignment of error. As such, Appellants failed to provide evidence to support this assignment of error, and this Court is not obligated to search it out. See Prince v.Jordan, 9th Dist. No. 04CA008423, 2004-Ohio-7184, at ¶ 40. This Court may disregard an argument if an appellant fails to identify the relevant portions of the record on which the error is based. App.R. 12(A)(2). This assignment of error is overruled. III. {¶ 12} Appellant's assignments of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. Slaby, P.J., Whitmore, J., concur. 1 Appellants cite Marshall v. Gibson (1985),19 Ohio St. 3d 10, and McCrystal v. Trumbull Memorial Hospital (1996),115 Ohio App. 3d 73, as support for their position. However, Appellants' reliance is misplaced. In each of these two cases, unlike the present case, a party objected to the trial court's failure to give the instruction. Therefore, neither case involved Civ.R. 51 and neither analysis is on point with the present issue.

2016-07-06 06:36:47.309965+00

OPINION Defendant-appellant Tyrel Simmons appeals from a judgment rendered by the Belmont County Common Pleas Court, Juvenile Division, amending its previous judgment to indicate that probable cause existed. For the following reasons, the judgment of the trial court is vacated. STATEMENT OF THE FACTS On June 3, 1998, plaintiff-appellee State of Ohio charged appellant with assault. The complaint alleged that appellant, who was five years old, knowingly caused or attempted to cause physical harm to a three-year-old girl in violation of R.C. 2903.13(A). Appellant denied the charges. On July 15, 1998, a pretrial hearing was held. The trial court continued the case so that appellant could complete counseling. On July 28, 1999, the trial court held a dispositional hearing. Upon learning that appellant had completed counseling, the trial court reviewed the case file. The trial court stated, "Oh, I see it here. I see it in the file now. [The counselor] gave him a good report. * * * From reviewing the file I do see there was some probable cause for this investigation * * *." (Tr. 2). The trial court later commented, "[t]here was probable cause. I saw the pictures. I remember the case." (Tr. 3). The same day, the trial court filed a judgment entry which merely stated, "case dismissed." On August 26, 1999, the trial court issued an amended judgment entry which stated, "journal entry dated July 28, 1999 amended as follows: * * * The [c]ourt, after reviewing the case file, finds that there was some probable cause in this matter. Due to completion of [c]ourt orders, case ordered dismissed." This appeal followed. ASSIGNMENTS OF ERROR Appellant sets forth three assignments of error on appeal. These assignments of error have a common basis in law and fact and will therefore be discussed together. They respectively allege: "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY REOPENING THIS CASE AFTER IT WAS DISMISSED, AND ENTERING A FINDING THEREIN, WITHOUT NOTICE TO THE APPELLANT." "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT, AND ABUSED ITS DISCRETION, BY MAKING A FACTUAL FINDING THAT `PROBABLE CAUSE' EXISTED FOR THE FILING OF THE CHARGE WHEN THERE WAS NO HEARING HELD OR EVIDENCE ENTERED INTO THE RECORD IN THIS CASE." "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT, AND VIOLATED THE APPELLANT'S CONSTITUTIONAL RIGHT TO NOTICE, RIGHT TO COUNSEL, RIGHT OF CONFRONTATION AND DUE PROCESS OF LAW, BY ENTERING THE SAID ORDER." Appellee argues that the August 26, 1999 entry reflected the actual finding at the hearing. While it was not labeled a nunc pro tunc entry, appellee contends that appellant was not harmed by the modification. LAW AND ANALYSIS Crim.R. 36 provides that "[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time." Anunc pro tunc entry is only appropriate when a court desires to correct a clerical error or to put in the record and enter on the journal action which in fact had been taken by the court but not properly noted.Phillips v. Indus. Comm. of Ohio (1927), 116 Ohio St. 261, 264. In short, it is utilized to supply information which existed but was not recorded. State v. Greulich (1988), 61 Ohio App. 3d 22, 24. The August 26, 1999 entry was not labeled "nunc pro tunc." However, the content of an entry, not its label or title, determines the nature of the document.St. Vincent Charity Hosp. v. Mintz (1987), 33 Ohio St. 3d 121, 123. Nonetheless, the August 26, 1999 judgment entry must be vacated. The July 28, 1999 judgment entry did not mention the existence of probable cause. It merely stated what the trial court intended, i.e. that the case was dismissed. We are aware that the trial court noted the presence of probable cause at the dispositional hearing. This, however, was not sufficient to issue a nunc pro tunc entry. The absence of a finding of probable cause on the first judgment entry was not a clerical mistake. It was not something that was inadvertently excluded. In fact, the trial court never undertook to ascertain whether probable cause existed. No adjudicatory hearing was held. No witnesses testified. No evidence was introduced. The only item in the record explaining what allegedly happened is the complaint. As such, the trial court could not have found the existence of probable cause. Because no finding of probable cause could have been made at the dispositional hearing, the trial court erred when it issued a nunc pro tunc entry which included such a finding. Appellant's assignments of error have merit. For the foregoing reasons, the August 26, 1999 judgment entry is hereby vacated. __________________ VUKOVICH, P.J. Donofrio, J., concurs, Waite, J., concurs.

2016-07-06 06:36:47.334901+00

OPINION On December 15, 1998, appellee, Kerry Johnson, gave birth to a son. Appellant, Heath Walters, signed an affidavit of acknowledgment of paternity on December 17, 1998. On September 14, 1999, appellant filed a complaint for the establishment of parental rights with the Court of Common Pleas of Licking County, Ohio, Domestic Relations Division. On January 31, 2000, appellee filed a motion to dismiss, claiming the domestic relations court lacked jurisdiction to hear the matter. By decision filed February 22, 2000, the magistrate recommended that the motion be granted. On March 2, 2000, appellant filed objections to the magistrate's decision. Following a remand to the magistrate to obtain a complete copy of the acknowledgment and an appeal to this court which was dismissed, the trial court denied the objections and accepted the magistrate's recommendation of dismissal. See, Opinion and Judgment Entry filed November 9, 2001. Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DISMISSING PLAINTIFF-APPELLANT'S COMPLAINT FOR CUSTODY OF TAYLOR LANE WALTERS. I Appellant claims the trial court erred in dismissing his complaint for custody. We agree. The sole issue raised sub judice is whether the Court of Common Pleas of Licking County, Ohio, Domestic Relations Division has jurisdiction to hear a custody matter involving a father who has acknowledged paternity pursuant to R.C. 5103.324(D)(1).1 Ancillary to this issue, appellant raises the question as to the right of an acknowledged parent to seek custody. Pursuant to R.C. 5103.324(D)(1), a parent who has acknowledged parentage has the right to seek custody: The department of job and family services shall prepare an acknowledgment of paternity affidavit that includes in boldface type at the top of the affidavit the rights and responsibilities of and the due process safeguards afforded to a person who acknowledges that he is the natural father of a child, including that if an alleged father acknowledges a parent and child relationship he assumes the parental duty of support, that both signators waive any right to bring an action pursuant to sections 3111.01 to 3111.19 of the Revised Code or make a request pursuant to section 3111.22 of the Revised Code, other than for purposes of rescinding the acknowledgment pursuant to section (B) of section 5101.314 [5101.31.4] of the Revised Code in order to ensure expediency in resolving the question of the existence of a parent and child relationship, that either parent may rescind the acknowledgment pursuant to division (B) of section 5101.314 [5101.31.4] of the Revised Code, and that the natural father has the right to petition a court pursuant to section 3109.12 of the Revised Code for an order granting him reasonable visitation with respect to the child and to petition the court for custody of the child pursuant to section 2151.23 of the Revised Code. Pursuant to R.C. 3109.042, unmarried parents of a child stand on equal footing in decisions involving residential parent and legal custodian of the child: An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation. Under R.C. 5101.324(D)(1) cited supra, the implication is that R.C.2151.23 controls and therefore the juvenile court has exclusive jurisdiction. The question of jurisdiction as it relates to the Court of Common Pleas of Licking County, Ohio, Domestic Relations Division is more complex. The Ohio Constitution vests the judicial power of the state in "* * * courts of common pleas and divisions thereof * * *" as established by law. See, Section 1, Article IV, Ohio Constitution. It is the legislature that has the power to define the jurisdiction of the court of common pleas. Seventh Urban, Inc. v. University Circle PropertyDevelopment, Inc. (1981), 67 Ohio St. 2d 19. The divisions of the courts of common pleas and their respective jurisdictions are established by the Ohio General Assembly. Section 4(A) and (B), Article IV, Ohio Constitution. Pursuant to R.C. 2151.011(A)(1)(c), the Court of Common Pleas of Licking County, Ohio, Probate Division has jurisdiction to hear all claims arising out of R.C. Chapters 2151 and 2152. The Court of Common Pleas of Licking County, Ohio, Domestic Relations Division has the following jurisdiction: In Licking county, the judge of the court of common pleas, whose term begins January 1, 1991, and successors * * * shall be elected and designated as judge of the court of common pleas, division of domestic relations. The judge shall be assigned all divorce, dissolution of marriage, legal separation, and annulment cases, all cases arising under Chapter 3111. of the Revised Code, all proceedings involving child support, the allocation of parental rights and responsibilities for the care of children and the designation for the children of a place of residence and legal custodian, parenting time, and visitation, and all post-decree proceedings and matters arising from those cases and proceedings, except in cases that for some special reason are assigned to another judge of the court of common pleas. R.C. 2301.03(S). The enabling legislation of the domestic relations courts of three other counties have identical language, Allen County [R.C. 2301.03(T)], Medina County [R.C. 2301.01(U)] and Scioto County [R.C. 2301.03(X)]. From our review of R.C. 2301.03, we find generally, when domestic relations and juvenile divisions are created as separate courts, there is clear language that reserves jurisdiction of R.C. Chapters 2151 and 2152 to the juvenile court. The only anomaly is the Court of Common Pleas of Fairfield County, Ohio, Domestic Relations Division which has "concurrent jurisdiction with the probate-juvenile division of the court of common pleas of Fairfield county with respect to and may hear cases to determine the custody of a child, as defined in section 2151.011 [2151.01.1] of the Revised Code * * *." R.C. 2301.03(V). In Summit County, the domestic relations court has exclusive jurisdiction to hear "all cases pertaining to paternity, custody, visitation, child support, or the allocation of parental rights and responsibilities for the care of children and all post-decree proceedings arising from any case pertaining to any of those matters." R.C. 2301.03(I)(1) and (2). It is readily apparent that the Ohio General Assembly was not consistent in its enabling language and tailored the jurisdictions of the domestic relations and juvenile courts to the needs and/or desires of the specific county. As we noted earlier, the Ohio General Assembly has the constitutional right to determine the jurisdiction of the courts it creates. Our analysis centers on what does the specific language of the enabling statute define as the jurisdiction of the Court of Common Pleas of Licking County, Ohio, Domestic Relations Division vis-a-vis the jurisdiction of the Court of Common Pleas of Licking County, Ohio, Probate/Juvenile Division. It is important to note that the determination of parentage in this case was done pursuant to R.C. 5101.324. The complaint filed by appellant sought a designation naming him residential parent or grant him reasonable visitation under Loc.R. 19 of the Court of Common Pleas of Licking County, Ohio, Domestic Relations Division. Based upon the clear statutory language, we find appellant had the right to request custody and/or visitation rights from the domestic relations division of the Court of Common Pleas of Licking County, Ohio as it has exclusive jurisdiction to determine "the allocation of parental rights and responsibilities for the care of children and the designation for the children of a place of residence and legal custodian" and visitation. Accordingly, we find the trial court erred in dismissing the complaint for lack of jurisdiction. The sole assignment of error is granted. The judgment of the Court of Common Pleas of Licking County, Ohio, Domestic Relations Division is hereby reversed and remanded. By FARMER, J. GWIN, P.J. and EDWARDS, J. concur. JUDGMENT ENTRY 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 reversed and remanded to said court for further proceedings consistent with this opinion. Costs to appellee. 1 R.C. 5101.324 was in effect when appellant signed his acknowledgment of paternity on December 17, 1998. Said statute was repealed on March 22, 2001. The parallel statute is now R.C. 3111.31.

2016-07-06 06:36:47.902623+00

OPINION {¶ 1} On October 25, 2000, the Perry County Grand Jury indicted appellant, Maxwell Muff, on one count of rape in violation of R.C. 2907.02. Said charge arose from an incident involving appellant's stepdaughter, Melody Bowersock. {¶ 2} A jury trial commenced on May 23, 2001. The jury found appellant guilty as charged. By judgment entry filed July 16, 2001, the trial court sentenced appellant to nine years in prison. {¶ 3} Appellant appealed his conviction, and this court affirmed. State v. Muff (April 19, 2002), Perry App. No. 01-CA-13. {¶ 4} On September 25, 2001, appellant filed a petition for postconviction relief. By judgment entry filed October 5, 2001, the trial court denied the petition. {¶ 5} On July 25, 2003, appellant filed a second petition for postconviction relief. By judgment entry filed August 6, 2003, the trial court again denied the petition. {¶ 6} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I {¶ 7} "The prosecution prior to and during trial violated Defendant's Fifth and Fourteenth Amendments by the knowledge of the existence of the written police report, and failed to provide a copy, despite the counsel's request for production of anything which was exculpatory in nature, and the misconduct involved amounts to a denial of due process within the Rule of Brady." II {¶ 8} "Defendant asserts that the trial court erred in allowing melody to testify, stating she was incompetent as a witness under evidence Rule 601(a)." III {¶ 9} "Defendant was deprived his most basic due process and compulsory rights via the trial court's failure to provide him an evidentiary hearing, whereas he could proffer his innocence." I, II, III {¶ 10} In his assignments of error, appellant claims the trial court erred in denying his petition for postconviction relief and erred in denying him an evidentiary hearing. We disagree. {¶ 11} R.C. 2953.21 governs petitions for postconviction relief. Subsection (A)(2) states the following: {¶ 12} "Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later than one hundred eighty days after the expiration of the time for filing the appeal." {¶ 13} Subsection (C) states the following: {¶ 14} "The court shall consider a petition that is timely filed under division (A)(2) of this section even if a direct appeal of the judgment is pending. Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. * * *" {¶ 15} Although the trial court's decision does not explicitly recite the reason(s) for the denial of the petition, it is clear from an examination of the docket that the reason was jurisdictional. {¶ 16} Appellant first filed a petition for postconviction relief on September 25, 2001. This petition was denied on October 5, 2001. Appellant filed a second petition on July 25, 2003 which was time-barred by statute. The second petition did not set forth any justifiable reason(s) as to why the jurisdictional mandates should not apply. {¶ 17} Upon review, we find the trial court did not err in denying appellant's petition for postconviction relief. {¶ 18} Assignments of Error I, II and III are denied. Perry County, App. No. 03CA15 {¶ 19} The judgment of the Court of Common Pleas of Perry County, Ohio is hereby affirmed. Farmer, P.J., Wise, J. and Edwards, J. concur. JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Perry County, Ohio is affirmed.

2016-07-06 06:36:47.96252+00

OPINION {¶ 1} Defendant-appellant, William Dempsey, appeals his conviction in Brown County Court for misdemeanor assault. We affirm appellant's conviction. {¶ 2} On August 5, 2001, appellant was involved in a physical altercation with Christine Mullis ("Ms. Mullis") and her fifteen-year-old daughter, Susie Mullis ("Susie"). Appellant had been hired by Brown County Job and Family Services to pour a concrete pad for the Mullis' mobile home. Ms. Mullis was upset because, according to her, appellant had not completed the job. Ms. Mullis and Susie confronted appellant while he was working at a residence near the Mullis' home. An argument ensued. According to Ms. Mullis and her daughter, appellant shoved Ms. Mullis in the neck. A Brown County deputy sheriff soon arrived and arrested appellant. {¶ 3} In August 2001, a complaint was filed in Brown County Court charging appellant with assault in violation of R.C. 2903.13, a first-degree misdemeanor. Appellant was convicted in a bench trial in December 2001. Appellant now appeals his conviction, raising one error as follows: {¶ 4} "The trial court erred in entering a find [sic] of guilty because such verdict was against the manifest weight of the evidence." {¶ 5} Under his sole assignment of error, appellant argues that "the evidence presented at trial failed to attain the high degree of probative force and certainty required of a criminal conviction and the verdict of guilty was against the manifest weight of the evidence." {¶ 6} To determine if a conviction is against the manifest weight of the evidence, an appellate court is to 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 a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387,1997-Ohio-52, citing State v. Martin (1983), 20 Ohio App.3d 172, 175. An appellate court should vacate a conviction and grant a new trial only when the evidence weighs strongly against the conviction. Id. In addition, the reviewing court must be aware that the original trier of fact was in the best position to judge the credibility of witnesses and the weight to be given to the evidence presented. See State v. DeHass (1967),10 Ohio St.2d 230, paragraph one of the syllabus; State v. Stair, Warren App. No. CA2001-03-017, 2002-Ohio-18. {¶ 7} Appellant was convicted of assault in violation of R.C.2903.13(A), which provides as follows: "No person shall knowingly cause or attempt to cause physical harm to another or to another's unborn." {¶ 8} Five witnesses testified at appellant's bench trial: a deputy sheriff, Ms. Mullis, Susie, appellant, and appellant's stepson. Tim Whyte, a Brown County deputy sheriff, was the state's first witness. Deputy Whyte testified that when he arrived at the scene he noticed red marks "in the neck/throat area" of Ms. Mullis. After speaking with Ms. Mullis, he arrested appellant for assault. {¶ 9} Ms. Mullis testified that she and appellant were arguing about the work he had done on her property. She then testified as follows: "[H]e shoved me in the neck. He grabbed, pushed me right in the neck." According to Ms. Mullis, Susie then began to yell at appellant. Appellant then shoved Susie who responded by striking him in the face with her fist. Ms. Mullis testified that appellant then kicked Susie in the back of the leg. According to Ms. Mullis, appellant and another man also threw rocks at her and Susie as they were leaving. {¶ 10} Susie also testified that appellant and Ms. Mullis were arguing about the work appellant had done on their property. She then stated the following: "[H]e took his hand and he pushed her against her throat and pushed her backwards. He was still cussing at her." She testified that she then started yelling at appellant. Appellant then kicked her in the leg and she punched him in the face. She also testified that appellant threw rocks at her and Ms. Mullis as they were leaving. {¶ 11} Brian Sieg, appellant's stepson, testified that he was present during the altercation. He testified that Ms. Mullis was "ranting and raving and screaming like a lunatic" when she confronted appellant. He stated that Ms. Mullis "kicked [appellant] in the butt" and that Susie "hit [appellant] in the head." According to Sieg, he stepped between appellant and Ms. Mullis. Ms. Mullis then left with Susie. He testified that appellant did not push or shove anyone, but "just walked off." He also testified that appellant did not throw rocks at anyone. {¶ 12} Appellant testified that during his argument with Ms. Mullis, she kicked him in the butt and Susie hit him in the head. He testified that he did not strike Ms. Mullis or Susie, but simply walked away and called the police. He also testified that he did not throw rocks at anyone. {¶ 13} After reviewing the entire record, we find that appellant's conviction for assault was not against the manifest weight of the evidence. Both Ms. Mullis and Susie testified that appellant, in the midst of a heated argument with Ms. Mullis, shoved her in the neck area. Based on their testimony, a reasonable trier of fact could find that appellant knowingly caused or attempted to cause physical harm to Ms. Mullis in violation of R.C. 2903.13(A). Deputy Whyte's testimony that he observed red marks in Ms. Mullis' neck/throat area lends credence to the testimony of Ms. Mullis and Susie. His testimony also casts doubt on the testimony of appellant and his stepson that appellant did not touch Ms. Mullis or Susie. {¶ 14} We cannot say that the fact-finder clearly lost its way and created a manifest miscarriage of justice, or that the evidence weighs strongly against appellant's conviction. The outcome of the case hinged on the credibility of the witnesses who testified. The trial court was in the best position to judge the witnesses' credibility. Accordingly, we overrule appellant's sole assignment of error. Judgment affirmed. WALSH, P.J., and VALEN, J., concur.

2016-07-06 06:36:48.01863+00

OPINION {¶ 1} Appellant Darrell W. Swaney appeals a divorce judgment of the Tuscarawas County Common Pleas Court, terminating his marriage with appellee Connie L. Swaney, and dividing marital property: {¶ 2} "THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE OPINION OF THE APPELLANT'S REAL ESTATE APPRAISER REGARDING THE VALUE OF THE MARITAL HOME LOCATED AT 200 GREENWOOD AVENUE, NEWCOMERSTOWN, OHIO. {¶ 3} "THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING THE APPELLEE SPOUSAL SUPPORT IN THE AMOUNT OF $1,200.00 FOR 72 MONTHS." {¶ 4} "THE TRIAL COURT ABUSED ITS DISCRETION BY OFFSETTING THE EQUITY IN THE MARITAL HOME AGAINST THE VALUE OF APPELLANT'S PENSION. {¶ 5} THE TRIAL COURT'S FAILURE TO RECOGNIZE APPELLANT'S SEPARATE PROPERTY INTEREST IN THE PUTNAM HARTFORD IRA IS AGAINST THE MANFIEST WEIGHT OF THE EVIDENCE." {¶ 6} The parties were married in 1977, and had one child, who is emancipated. Appellant had been employed at Baker's IGA for twenty-eight years, earning approximately $66,000, plus bonuses. Appellant takes several heart medications following open heart surgery, and Viagra. The parties had sexual relations only a few times in the last eighteen months of the marriage, and appellee was not aware that appellant had a prescription for Viagra until after they separated. She became angry when a Viagra refill was delivered to the marital residence after their separation. {¶ 7} Appellee is a licensed beautician and also works for the Newcomerstown Schools as a library aide. During the calendar year 2000, appellee earned approximately $11,000. She had tendonitis in both arms, and has been seeing a counselor regularly since appellant left the marital residence. {¶ 8} Appellant filed the instant action for divorce. He claimed that he has been unhappy in the marriage for many years, but did not discuss his unhappiness with appellee because he did not like confrontation. He testified at trial that he would fall asleep on the couch while watching TV, and appellee would not wake him to come to bed, which he believed was an example of gross neglect of duty and extreme cruelty. At the time of trial, appellant was living with Janet Burke, who he began a sexual relationship with almost immediately after vacating the marital residence. {¶ 9} The court granted the parties a divorce, and divided marital property, including an IRA account appellant had at Putnam Hartford. The IRA had a balance of $94,052. Appellant unsuccessfully argued that a portion of the account was pre-marital and therefore separate property, as contributions to the account began in 1973, four years before the parties were married. The court ordered appellant to pay spousal support in the amount of $1200 per month for 72 months. I {¶ 10} In his first assignment of error, appellant argues the court erred in failing to consider the opinion of his real estate appraiser. Appellant essentially argues that the court erred in valuing the opinion of appellee's appraiser, Don Wallick, more highly than that of appellant's appraiser, Lauri Fantin. {¶ 11} Where the decision in a case turns upon credibility of testimony, and when there exists competent and credible evidence supporting the findings and the conclusions of the trial court, the reviewing court must give deference to such findings and conclusions.Myers v. Garson (1993), 66 Ohio St.3d 610, 614. The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses, observe their demeanor, and use these observations in weighing the credibility of the testimony. Id. at 615. {¶ 12} In the findings of facts of the magistrate, adopted by the trial court, the magistrate found that appellee's appraiser was more accurate and reliable, as he is a disinterested third party, had seen the interior of the home, and his comparables were in the same school district. This finding is supported by the record. The record reflects that appellant's appraiser is his niece. She testified that she based her appraisal concerning the interior of the house on the information that was given to her by appellant, and not on observation. She also based her comparables on homes in other school districts. The court did not abuse its discretion in finding that appellee's appraiser provided a more accurate appraisal than appellant's appraiser. {¶ 13} The first assignment of error is overruled. II {¶ 14} Appellant argues that the court erred in ordering him to pay appellee spousal support in the amount of $1200 per month for a period of 72 months. Appellant argues that the trial court failed to consider his prescription expenses and medical problems, and an inheritance received by appellee. {¶ 15} In Finding of Fact 28, the court reviews the spousal support factors found in R.C. 3105.18, applying them to the facts of the case. The court found that appellant had a significantly higher income than appellee, and appellee had the ability to earn more money than appellant. The marriage lasted 24 years. The court found that the parties established a comfortable standard of living during the marriage. The court did specifically find that appellee had separate property, from an inheritance. {¶ 16} Based on the evidence concerning disparate income and earning power, the length of the marriage, and other specific factors considered by the court, we cannot find that the court abused its discretion in the award of spousal support. {¶ 17} The second assignment of error is overruled. III {¶ 18} In his third assignment of error, appellant first argues that the court erred in failing to treat a portion of the IRA as separate property, and in offsetting the value of the marital residence equity against the IRA, due to the disparate tax consequences upon liquidation of each. {¶ 19} Pursuant to R.C. 3105.171 (A)(6)(a)(ii), separate property includes any real or personal property or interest in property that was acquired by one spouse prior to the date of the marriage. The commingling of separate property with other property of any type does not destroy its identity as separate, except when the separate property is not traceable. R.C. 3105.171(A)(6)(b). The party seeking to establish an asset as separate property has the burden of proof, by a preponderance of the evidence, to trace the asset to separate property. Hildebrand v.Hildebrand, Morrow Appellate No. 954, 2003-Ohio-3654. {¶ 20} Appellant testified that he began working at Baker's grocery store on October 15, 1973. Tr. 53. He began purchasing CD's at a bank to save for retirement, in $200 increments. He testified that at some point in time, he had in excess of 30 CD's. Id. He stopped purchasing CD's in January of 1983. Tr. 54. At some point the employer began contributing to the purchases, but when the employer stopped contributing in 1983, appellant also stopped contributing. Tr. 55. He had no information on any of the CD's as far as what he bought, or when he bought them. Tr. 56. He could not clarify how long before the marriage his employer contributed to the purchase of CD's for retirement. Id. In 1994, the money was rolled over into the Putnam Hartford account, worth over $94,000 at the time of trial. {¶ 21} Appellant later testified that at the time he rolled the CD's over into the IRA account, he had CD's in $100 and $200 increments. They accumulated between $18,000 and $20,000 at the time they were rolled into the IRA. Tr. 74. He testified that about a year to eighteen months after he started purchasing CD's, the employer started the same program for the total company, and began contributing along with him. Tr. 74-75. {¶ 22} Still later in the hearing, appellant testified that he contributed 41 months prior to the marriage, and 70½ months after the marriage. Tr. (II) 57. He therefore claimed that the marital portion was 63%. {¶ 23} Appellant has not met his burden of tracing what portion of the Putnam Hartford account was separate property. He could place no value on the amount of his contribution and the amount of his employer's contribution prior to the 1977 marriage. Appellant testified generally concerning the amounts of the CD's he purchased, but could not place a value on the amount he contributed to the plan prior to the marriage in 1977. Nor could he place a value on the amount the employer contributed to the plan prior to the marriage in 1977, or an exact date as to when the employer began to contribute to the plan. Appellant cannot claim a percentage of the plan is separate based solely on the number of months he contributed prior to the marriage, when there is no evidence to support a claim that contributions were equal both before and after the marriage, as to both himself and the employer. The court did not err in finding the entire IRA account was marital property. {¶ 24} As to appellant's claim that the court erred in offsetting the IRA account against the equity in the residence, appellant presented no evidence, expert or otherwise, on the issue of tax consequences or liquidity of assets. The court therefore did not abuse its discretion in offsetting one against the other. {¶ 25} The third assignment of error is overruled. IV {¶ 26} In his fourth assignment of error, appellant maintains the court erred in finding that the entire IRA account was marital property. For the reasons stated in III, above, appellant failed to establish by a preponderance of the evidence the traceability of his separate property in the IRA account. {¶ 27} The fourth assignment of error is overruled. {¶ 28} The judgment of the Tuscarawas County Court of Common Pleas is affirmed. Costs to appellant. Hoffman, and Edwards, JJ., concur.

2016-07-06 06:36:48.050043+00

OPINION {¶ 1} In the instant appeal, submitted on the record and briefs of the parties, appellant, Brian LeMasters, appeals his conviction in the Lake County Court of Common Pleas on one count of Grand Theft of a Motor Vehicle, a felony of the fourth *Page 2 degree, in violation of R.C. 2913.02(A)(1). For the reasons that follow, we affirm the judgment of the lower court. {¶ 2} The charges in question arose from an incident which occurred on February 26, 2006. At approximately 2:30 a.m., Dennis Williams was watching television at his home, located at 6820 Warner Road (State Route 320), in Madison Township, Ohio, when he was disturbed by a loud crash. He rushed to the living room window, looked out, and saw a vehicle with extensive damage sitting on the road in front of his house. Williams immediately called 911 to summon assistance. After hanging up the phone, he went outside to assess the accident scene. The vehicle, a blue 2004 Suzuki Verona, was extensively damaged, and appeared to have rolled over. The vehicle also appeared to have struck Williams' company vehicle, which was parked in his driveway. Williams approached the vehicle, where he found LeMasters sitting behind the wheel, and informed him that help was on the way. LeMasters, who appeared agitated, told Williams that he did not need help, and unsuccessfully attempted to leave the scene. {¶ 3} Shortly thereafter, the Madison Fire Department rescue squad appeared and attempted to treat LeMasters for his injuries. Paramedic Kendall Wilson, who treated LeMasters, stated that he was "not cooperative at all," that he repeatedly stated "I know I am in trouble. I have been drinking," and that he violently resisted treatment, insisting that members of the rescue squad not touch him until his eyeglasses were found, and attempting to break free from the restraints holding him to the backboard. The squad eventually was able to transport LeMasters to Geneva Hospital for treatment. *Page 3 {¶ 4} Officer Jason Clark, of the Madison Township Police Department, arrived a few minutes later. While investigating the accident, he heard a stolen vehicle report from the Madison Village Police Department over his radio. The vehicle's description matched that of the Suzuki, which had been reported stolen from the parking lot of Quigley's Saloon, a restaurant and bar, located on North Lake Street in Madison Village. Quigley's is located approximately three miles away from the scene of the accident. Officer Clark ran the vehicle's license number through the LEADS system, found that it matched that of the vehicle that had been reported stolen. He then relayed this information to the Madison Village Police Department. Officer Tim Gleba of the Madison Village Police Department, who had taken the stolen vehicle report from Janine Hathaway, the owner, arrived at the accident scene followed by Hathaway and two of her friends. The women, who had been attending a birthday party, identified LeMasters as having also been at Quigley's that evening. {¶ 5} On December 22, 2006, the Lake County Grand Jury returned a one count indictment, charging LeMasters with Grand Theft of a Motor Vehicle, a felony of the fourth degree, in violation of R.C. 2913.02(A)(1). LeMasters waived his right to be present at the arraignment, and a plea of "not guilty" was entered on his behalf. {¶ 6} On Feburary 22, 2007, after being granted leave by the court, LeMasters filed a motion to suppress. This motion was ultimately withdrawn by his counsel. LeMasters also filed a motion for a competency evaluation, and, pursuant to this motion, was referred to the Lake County Adult Probation Department. After LeMasters was found competent by the court, the matter proceeded to trial. *Page 4 {¶ 7} On July 11, 2007, following a two day trial, the jury found LeMasters guilty as charged. He was sentenced on July 20, 2007, to a fifteen month term of incarceration. {¶ 8} LeMasters timely appealed, assigning the following as error for our review: {¶ 9} "The trial court erred to the prejudice of the defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence." {¶ 10} On appeal, LeMasters argues that "[t]he evidence is insufficient as a matter of law to sustain [his] conviction * * * where the conviction is not supported by competent, credible evidence which proves guilt beyond a reasonable doubt." {¶ 11} We note, at the outset, that although LeMasters' assignment of error challenges his conviction solely on the basis of being against the manifest weight of the evidence, his argument also appears to raise a sufficiency of the evidence challenge, and unwittingly conflates the legal standards between the two. We shall, therefore, discuss both standards briefly before addressing his argument. {¶ 12} The analyses for considering the weight and sufficiency of the evidence are related, but distinct. The Ohio Rules of Criminal Procedure provide that a defendant may move the trial court for a judgment of acquittal "if the evidence is insufficient to sustain a conviction." Crim. R. 29(A). "`[Sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury," i.e. "whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v. Thompkins, 78 Ohio St.3d 380,386, 1997-Ohio-52, quoting Black's Law Dictionary (6 Ed. 1990), 1433. Essentially, "sufficiency is a test of adequacy," that *Page 5 challenges whether the state's evidence has created an issue for the jury to decide regarding each element of the offense. Id. {¶ 13} "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 319. In reviewing the sufficiency of the evidence to support a criminal conviction, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Jenks, 61 Ohio St.3d 259, paragraph two of the syllabus. {¶ 14} Weight of the evidence, in contrast to its sufficiency, involves "the inclination of the greater amount of credible evidence."Thompkins, 78 Ohio St.3d at 387 (emphasis sic) (citation omitted). Whereas the "sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support the verdict as a matter of law, * * * weight of the evidence addresses the evidence's effect of inducing belief." State v. Wilson, 113 Ohio St.3d 382,2007-Ohio-2202, at ¶ 25 (citation omitted). "In other words, a reviewing court asks whose evidence is more persuasive — the state's or the defendant's?" Id. {¶ 15} Generally, the weight to be given to the evidence and the credibility of the witnesses is primarily for the trier of fact to determine. State v. Thomas (1982), 70 Ohio St.2d 79, at the syllabus. When reviewing a manifest weight challenge, however, the *Page 6 appellate court sits as the "thirteenth juror." Thompkins,78 Ohio St.3d at 387 (citation omitted). The reviewing court must consider all the evidence in the record, the reasonable inferences, and the credibility of the witnesses, to determine whether, "in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. 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., quoting State v. Martin (1983),20 Ohio App.3d 172, 175. {¶ 16} In order for a jury to find LeMasters guilty on a charge of Grand Theft of a Motor Vehicle, in violation of R.C. 2913.02(A)(1), the state must prove, beyond a reasonable doubt, that he, "with purpose to deprive the owner of [the motor vehicle] * ** knowingly obtain[ed] or exert[ed] control over * * * [it] * * * [w]ithout the consent of the owner or person authorized to give consent." {¶ 17} At trial, LeMasters' counsel elected not to raise a Crim. R. 29 motion for acquittal challenging the sufficiency of the evidence submitted by the state. Accordingly, this issue is waived for the purposes of appeal. State v. McCrory, 11th Dist. No. 2006-P-0017,2006-Ohio-6348, at ¶ 39, citing State v. Beesler, 11th Dist. No. 2002-A-0001, 2003-Ohio-2815, at ¶ 21. {¶ 18} LeMaster's challenges his conviction on the manifest weight of the evidence grounds based upon the Eighth District's decision inState v. Mattison (1985), 23 Ohio App.3d 10, which listed the "following factors as guidelines to be taken into account by a reviewing court: {¶ 19} "1. The reviewing court is not required to accept as true the incredible; *Page 7 {¶ 20} "2. whether the evidence is uncontradicted; {¶ 21} "3. whether a witness was impeached; {¶ 22} "4. what was not proved; {¶ 23} "5. the certainty of the evidence; {¶ 24} "6. the reliability of the evidence; {¶ 25} "7. whether a witness' testimony is self-serving; {¶ 26} "8. whether the evidence is vague, uncertain, conflicting or fragmentary." {¶ 27} Id. at syllabus (emphasis sic). {¶ 28} In so doing, LeMasters alleges several "inconsistencies," which "taken as a whole * * * multiply and present a confusing mesh of what exactly happened on the night in question," and render the jury's verdict suspect. We disagree. {¶ 29} As an initial matter, "[t]his court has repeatedly held that while `the Mattison factors are helpful guides when exploring whether a verdict is against the weight of the evidence * * * they do not create a specific standard [of review] to be applied to manifest weight claims.'"State v. Higgins, 11th Dist. No. 2005-L-215, 2006-Ohio-5372, at ¶ 38, quoting State v. Torres-Flores, 11th Dist. No. 2005-L-046,2006-Ohio-3212, at ¶ 29. Instead, we have "repeatedly deferred to the standards of review set forth by the Supreme Court of Ohio." Id., quoting State v. Peck, 11th Dist. No. 2004-L-021, 2005-Ohio-1413, at ¶ 13. {¶ 30} Applying the aforementioned standard of review, we find no merit to appellant's arguments. {¶ 31} At trial, the state introduced testimony from six witnesses: Williams, Paramedic Wilson, Officers Clark and Gleba, Dawn Shannon, and Hathaway. *Page 8 {¶ 32} Williams testified that he initially approached the wrecked vehicle immediately after reporting the accident. He stated that he spent approximately three minutes on the phone with the 911 dispatcher, and was looking out of a large picture window in his living room at the accident while on the phone. Williams testified that he was able to view LeMasters sitting behind the steering wheel at a distance of approximately one or two feet, and observed no other individuals around the scene of the accident prior to the arrival of rescue and police personnel. Williams also stated that when he went to check on LeMasters, the first thing he said was that he could not find his glasses and needed his glasses. When Williams told him to relax, because help was on its way, LeMasters responded that he did not help, but "need[ed] to get out of here," after which he turned the ignition key. The car started, "ran full throttle for like seven or eight seconds, [and] then [stopped running] with a loud bang." Williams testified that after failing to get the car running, LeMasters attempted to open the door to get out, but Williams was able to keep him calm until assistance arrived a few minutes later. {¶ 33} Paramedic Wilson also testified, stating that the rescue squad arrived at the scene of the accident at 2:39 a.m., approximately seven minutes after being dispatched. Wilson stated that when he approached, he observed a heavily damaged vehicle, with LeMasters behind the wheel. He described LeMasters as "very combative, looking for his glasses," and was "not going to let us take care of him until he found his glasses." Paramedic Wilson stated that he also observed no one else in or around the vehicle, except for Williams. Paramedic Wilson testified that when he first walked over to the vehicle, the driver's door was open. Wilson asked LeMasters if he was okay. *Page 9 LeMasters responded, "I know I am in trouble. I have been drinking," and repeated this statement several times. Paramedic Wilson said that he had a hard time getting LeMasters to cooperate, with his insistence that he find his glasses, to the point that he could not keep him in the car. Eventually, he was able to convince LeMasters to allow them to put a cervical collar on him and place him on a backboard, although later, he had to be restrained and handcuffed to the backboard for his safety and the safety of the squad after physically breaking the soft restraints typically used for possible spinal injury victims. {¶ 34} Officer Clark testified that he arrived on the scene at 2:41 a.m., and observed "the firefighters attempting to help the (unidentified) male. The male was arguing with them stating that he needed to find his glasses." Officer Clark "told him to calm down, relax, the fire department is just trying to help." Officer Clark testified that when LeMasters saw him, he said, "Oh great, the Madison fucking cops. Now I'm in trouble." Officer Clark further stated that LeMasters kept insisting he would not allow anyone to help him, or provide any information regarding his identity "until he found his glasses." Due to LeMasters' refusal to cooperate in any meaningful way, Officer Clark was unable to confirm his identity that night. {¶ 35} Officer Clark testified that he became aware that a vehicle meeting the description of the one involved in the accident had been stolen "shortly after arrival," after which, he verified that the Suzuki was, in fact, the stolen vehicle, and he, along with another officer from his department, arranged to have the vehicle towed. Clark stated that he later found LeMasters' glasses "in a ditch, 2 houses back" from where the vehicle came to a rest. *Page 10 {¶ 36} Officer Gleba testified that he was dispatched to Quigley's at approximately 2:35 a.m., that same morning. He met with Hathaway, the owner of the vehicle and her friend, Shannon, to make a report. Officer Gleba knew both women, since Shannon worked for the Madison Village Police Department as a dispatcher/officer, and Hathaway, who was a medical secretary, was also an auxiliary officer for the department. Gleba stated that Hathaway told him she had last seen her vehicle at 8:00 p.m., the prior evening, when she arrived at Quigley's for Shannon's daughter's twenty-first birthday party, and had come out at approximately 2:30 p.m., to find the vehicle missing. Gleba said that Hathaway had locked her purse inside the vehicle that night, and that she always kept an extra set of keys in her purse. Officer Gleba stated that he "then scanned the parking lot for forced entry or glass, [but] none was found." {¶ 37} After submitting his report to dispatch, he heard a report on the radio that a squad was "rolling up to a possible injury accident" on a similar vehicle. He submitted the license number of Hathaway's car to dispatch, and confirmed that it was Hathaway's car that had been involved in the accident. Gleba then left the statement form with Hathaway and proceeded to the scene of the accident. Hathaway, Shannon, and Gleba's wife, a friend who had also attended the party, followed in Mrs. Gleba's vehicle. {¶ 38} Officer Gleba further testified that, on arrival at the accident scene, he entered the ambulance and found "the suspect lying on the cot thrashing his arms," and "screaming and yelling." He stated that LeMasters was "very angry," in a "lot of pain," and repeatedly saying that he "wanted his glasses." He testified that Hathaway and a friend "as well as another Madison Village Officer who is very well known in the *Page 11 community [Shannon], came up to the scene * * *. She then came to the [ambulance] to possibly see who it was and said it was Brian LeMasters." {¶ 39} Both Shannon and Hathaway corroborated this portion of Officer Gleba's testimony, with Shannon testifying that she was the person who identified LeMasters in the ambulance. Both women testified that they had seen him in Quigley's that evening. Evidence was submitted that Hathaway was the owner of the vehicle, and she testified that she had not given consent for anyone to use her vehicle. {¶ 40} LeMasters testified on his own behalf at trial. He did not dispute that he was in Quigley's that night. LeMasters testified that he arrived home from work, took a shower, ate, and walked to Quigley's, arriving at approximately 11:30 p.m., on February 25. He stated that he "walked in, * * * kind of looked around, seen a few people that I knew and noticed there was three Madison Village Police Officers in the bar and I sat down * * * and had me a beer." He stated that, during the course of the evening, he "shot a game of pool, sang karaoke, [and] talked to a few people." During the course of the evening, LeMasters claimed to have had "a couple of draft beers and * * * a couple shots of tequila." He testified that he went outside of Quigley's two or three times that evening to have a cigarette. He also does not dispute that he was found behind the wheel of Hathaway's car, given that he spent several months in the hospital as a result of the accident. {¶ 41} Although he denies none of the aforementioned facts, the crux of LeMasters' testimony and defense is based upon his alleged lack of memory of the events of that night after he left Quigley's. LeMasters testified about an earlier "major incident" involving a confrontation he had with Madison Village Police Officers when *Page 12 they arrived at "a relative's home" to effectuate an arrest of his relative. Ever since then, he alleges that Madison Village Police have engaged in a pattern of persecution against him, culminating in what he suspects was a successful attempt by someone connected with the police department to place a drug into his drink. He further testified that "somebody" who had actually taken Hathaway's vehicle "must have offered him a ride," and left him in the car following the accident. In the alternative, he testified that, in his alleged state of involuntary intoxication, he may have taken the car, but "did not know he stole it or was driving it," and therefore he did not possess the required intent to be convicted of Grand Theft. {¶ 42} Generally, the issue of intoxication arises in cases where intent is an element of the crime. Theft is a specific intent crime. See e.g., State v. Feltner, 2nd Dist. No. 06-CA-20, 2007-Ohio-866, at ¶ 10;State v. Crisp, 10th Dist. No. 06AP-146, 2006-Ohio-5041, at ¶ 10. However, intoxication is an affirmative defense, "which thedefendant must prove by a preponderance of the evidence." State v.Robinson (1976), 47 Ohio St.2d 103, 108, citing State v. Vargo (1927),116 Ohio St. 495, at paragraph one of syllabus (emphasis added). LeMasters clearly has failed to meet this burden. {¶ 43} In the instant case, LeMasters further asserts that certain aspects of Williams' testimony should have been deemed unreliable, and/or unclear because he first surveyed the accident from 45 feet away from his home, through a window, and there was inadequate lighting. He also avers that Williams' testimony should have further been called into question because he did not recall airbags being deployed when the photos of the vehicle "clearly illustrated deployed airbags." He also calls into *Page 13 question Williams' testimony that "he had no trouble starting the severely damaged automobile." {¶ 44} When assessing the credibility of witnesses, "[t]he choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact." State v. Awan (1986),22 Ohio St.3d 120, 123. This is because it is "the trier of fact who is in the best position to observe and evaluate the demeanor, voice inflection, and gestures of the witnesses." State v. Dach, 11th Dist. Nos. 2005-T-0048 and 2005-T-0054, 2006-Ohio-3428, at ¶ 42 (citation omitted). Furthermore, "the factfinder is free to believe all, part, or none of the testimony of each witness appearing before it." Warren v.Simpson (Mar. 17, 2000), 11th Dist. No. 98-T-0183, 2000 Ohio App. LEXIS 1073, at *8. If the evidence is susceptible to more than one interpretation, a reviewing court must interpret it in a manner consistent with the verdict. Id. {¶ 45} We fail to see how Williams' failure to recollect whether airbags were deployed is significant, given the fact that he was attempting to recall an event which occurred approximately 17 months earlier. Moreover, we do not find it incredible that a damaged vehicle may be able to be started, albeit briefly, following a rollover accident. {¶ 46} We find it much less credible that LeMasters could have moved, or been moved, into the driver's seat following the accident, considering the fact that the car had been so severely damaged, and the fact that Paramedic Wilson, the other indisputably unbiased witness, testified that LeMasters suffered a severely injured leg following the accident. This, along with LeMasters' own testimony that he suffered two crushed thoracic vertebrae, and two fractured lumbar vertebrae, and spent from "February 26th, *Page 14 to the end of July" in the hospital for these injuries, make it extremely unlikely that events occurred the way he theorizes. {¶ 47} LeMasters also brings into question the fact that "examination of the parking lot where the alleged theft took place" revealed no signs of forced entry, which he finds "perplexing" given the fact that the stolen automobile was locked at the time of the incident. We are considerably less perplexed by these questions, given the undisputed evidence presented to the jury at trial. {¶ 48} It is well-settled that "[d]irect evidence, circumstantial evidence, or both may establish an element of the charged offense."State v. Griffin, 1st Dist. No. C-020084, 2003-Ohio-3196, at ¶ 44, citing State v. Durr (1991), 58 Ohio St.3d 86, 92. Circumstantial evidence has been characterized as the "proof of facts by direct evidence from which the trier of fact may infer or derive by reasoning other facts in accordance with the common experience of mankind."State v. Silverman, 10th Dist. Nos. 05AP-837, 05AP-838 and 05AP-839,2006-Ohio-3826, at ¶ 102 (citation omitted). {¶ 49} Although Officer Gleba testified that he examined the parking lot for signs of forced entry, e.g. broken glass, he was unable to find any. However, on cross-examination when asked if he found "any evidence that the car was broken into," Officer Gleba responded that he did not, saying "[i]t was dark and it is a dirt driveway." {¶ 50} We do not find Officer Gleba's testimony inherently incredible. Breaking a window is not the only means of gaining entry to a locked car. Furthermore, the fact that the vehicle was so severely damaged significantly reduces the likelihood of seeing signs of forced entry on the vehicle itself. *Page 15 {¶ 51} Given the veritable mountain of undisputed direct and circumstantial evidence introduced at trial, which placed LeMasters at the scene of the theft and behind the wheel of the stolen vehicle within a few minutes and a few miles of its having been reported stolen, the fact that the state "failed to produce evidence showing that Mr. LeMasters was actually driving the car," does nothing to create, let alone add to any "quagmire," especially when such proof is not an element of the offense. {¶ 52} Based upon the foregoing, we cannot conclude the jury clearly lost its way or created a manifest miscarriage of justice by convicting LeMasters for Grand Theft. {¶ 53} LeMasters' sole assigned error is without merit. {¶ 54} The judgment of the Lake County Court of Common Pleas is affirmed. Costs to be taxed against appellant. COLLEEN MARY OTOOLE, J., MARY JANE TRAPP, J., concur. *Page 1

2016-07-06 06:36:48.271362+00

OPINION This is an appeal from a judgment of the Court of Common Pleas of Montgomery County sustaining motions of the defendant, Allstate Indemnity Company, and the defendant, Integron Insurance Company, for summary judgment. Allstate filed its motion on October 26, 1999 and Integron followed with its own motion on November 19, 1999. According to the facts, Thomas Cooper, a minor, was a passenger in a vehicle driven by one Robert Gradowski. While Mr. Gradowski was stopped at a stoplight, another vehicle driven by the defendant, Robert Iiams, stopped alongside the passenger side of Gradowski's vehicle. A verbal altercation ensued between Gradowski and Iiams at which time Iiams threw a beer bottle out of his driver's side window into the passenger side window of Gradowski's car. The beer bottle struck Thomas Cooper in the head causing injuries to him. At the time of the incident, Mr. Iiams had automobile insurance with Allstate and the Cooper family had automobile insurance with Integron which included uninsured and underinsured motorist coverage. In its motion for summary judgment, Allstate claimed that it was not liable for automobile coverage for Iiams, (1) because his conduct was intentional and criminal, and (2) because his actions did not arise out of the "ownership, maintenance, or operation" of his motor vehicle. On the other hand, Integron's motion claimed that it was not obligated to provide uninsured/underinsured motorist coverage because the injuries did not arise from the "ownership, maintenance or use" of a motor vehicle. In this appeal, the appellants have set forth two assignments of error as follows: 1. THE TRIAL COURT INCORRECTLY HELD THAT APPELLANTS WERE NOT ENTITLED TO UNINSURED MOTORIST COVERAGE FROM INTEGRON INSURANCE COMPANY OR TO LIABILITY COVERAGE PURSUANT TO ROBERT IIAMS' ALLSTATE INSURANCE AUTOMOBILE POLICY, BASED ON ITS FINDING THAT THE INCIDENT AT BAR DID NOT ARISE OUT OF THE OWNERSHIP, OPERATION, OR USE OF IIAM'S VEHICLE. 2. THE TRIAL COURT INCORRECTLY HELD THAT APPELLANTS WERE NOT ENTITLED TO LIABILITY COVERAGE PURSUANT TO ROBERT IIAMS' ALLSTATE INSURANCE AUTOMOBILE POLICY BASED ON ITS FINDING THAT THE POLICY EXCLUDED COVERAGE FOR BODILY INJURY WHICH MAY REASONABLY BE EXPECTED TO RESULT FROM INTENTIONAL OR CRIMINAL ACTS. The issues presented by the alleged errors were discussed at some length in the decision of the trial court, and this court has been unable to perceive any valid reason to depart from the comprehensive and learned analysis of the case by Judge Patrick J. Foley of the Court of Common Pleas. Particularly and with respect to the doctrine of stare decisis, we recognize the applicability of the case of Babb v. Grizzell (July 30, 1999), Montgomery App. No. 17551, unreported, discretionary appeal not allowed, (1999), 87 OS3d 1443, where this court considered facts which are remarkably similar to the facts of the present case. Accordingly, both of the assignments of error must be overruled, and the judgment will be affirmed. ______________________ KERNS, J. BROGAN, J., and FAIN, J., concur. (Hon. Joseph D. Kerns, Retired from the Court of Appeals, Second Appellate District, Sitting by Assignment of the Chief Justice of the Supreme Court of Ohio).

2016-07-06 06:36:50.093885+00

OPINION {¶ 1} Defendant-appellant Timothy Lamarr Davis appeals from his conviction in the Stark County Common Pleas Court of murder with a firearm specification, a violation of R.C. 2903.02(A)(2) and (B). In support thereof, appellant sets forth a multitude of issues before this court: (1) whether the trial court erred when it did not give a defense of others instruction; (2) whether the trial court committed error in denying the admission of the victim's reputation evidence and the victim's specific acts of conduct, including possession of cocaine at the time of the incident; (3) did the trial court err when it did not allow the coroner to testify as to whether alcohol would cause an aggressive person to be more aggressive; (4) whether the trial court should have excluded three photographs from evidence due to their repetitive and prejudicial nature; (5) whether appellant received ineffective assistance of counsel; (6) whether the verdict is against the manifest weight of the evidence and is supported by insufficient evidence; and (7) whether the cumulative effect of the alleged errors denied appellant a fair trial. For the reasons stated below, the judgment of the trial court is affirmed. STATEMENT OF FACTS {¶ 2} On the evening of August 4, 2003, appellant, Trevis Davis (appellant's brother), Eloy Lopes, and Dana Austin (decedent) attended a party. (Tr. 408). At this party each of the above individuals were consuming alcohol. (Tr. 408-409). {¶ 3} It is disputed as to whether appellant and Austin had an argument at this party. (Tr. 409, 441, 525-526). Appellant and Trevis testified that an exchange occurred between Austin and appellant over appellant's father's outstanding crack cocaine bill. (Tr. 441, 465, 472, 525-526). Lopes, on the other hand, testified that at the party there were no problems between Austin and appellant. (Tr. 409). {¶ 4} After a couple of hours, a number of people including the above four named individuals decided to go to Stella's Bar in Canton, Ohio. (Tr. 410). Lopes and Austin arrived at Stella's first and both had a few drinks there. (Tr. 412). Austin then left the bar, while Lopes remained inside. (Tr. 413). Upon exiting the bar, Austin encountered appellant. (Tr. 531) Shortly thereafter, Trevis, driving separately from appellant, arrived at Stella's Bar. Trevis parked his minivan behind appellant's vehicle and remained in the minivan. {¶ 5} Austin approached appellant's vehicle where appellant was sitting. Appellant grabbed a gun he kept under the car seat, put it in his pocket and exited the vehicle. At this point, an argument occurred between the two men, allegedly over appellant's father's outstanding crack cocaine bill. (Tr. 443). Appellant testified that during the argument Austin said to him, "All right, mother fucker, stay right here, I'm going to kill your ass, stay right here." (Tr. 535). Trevis testified that Austin told appellant to wait right there. (Tr. 445). After these alleged threats were made Austin turned and started walking towards his car. Austin took about four steps, began to turn around, and allegedly looked as if he was reaching for a gun at his waist. (Tr. 536-537). Appellant then turned and ran towards his car and shot in Austin's direction. (Tr. 537). {¶ 6} After firing the gun, appellant ran down a nearby alley and threw the gun in a sewer. (Tr. 539). Appellant then used his cell phone to call Canton Police Officer Baskerville and informed him that he had just shot at Austin. (Tr. 540). {¶ 7} Shortly thereafter officers arrived on the scene and found Austin dead. Austin had sustained two gunshot wounds, one to the right forehead and one to the left arm/chest. (Tr. 356, 358-360). The autopsy revealed that the gunshot wound that entered through the left arm and exited through the left chest was fatal. (Tr. 358-360, 364). The gunshot wound to the head was non-fatal; it entered, hit the forehead bone and then exited, causing only a flesh wound. (Tr. 356-357). {¶ 8} The police then began searching for appellant. Appellant turned himself in later the next day. {¶ 9} Appellant was indicted on one count of murder with a firearm specification. He entered a plea of not guilty and the case proceeded to a jury trial; the jury found him guilty. The court sentenced him to a prison term of 15 years on the murder charge and three years on the firearm specification. The trial court ordered the sentences to be served consecutively. Appellant timely appeals from the conviction raising seven assignments of error. ASSIGNMENT OF ERROR NUMBER ONE {¶ 10} "The trial court erred when it refused to submit the appellant's proposed jury instructions for the defense of others thereby denying appellant's right to due process and a fair trial guaranteed by the united states and ohio constitutions." {¶ 11} During trial, appellant requested both a self-defense jury instruction and a defense of others jury instruction. The trial court granted the self-defense instruction, but refused to give the defense of others instruction. The trial court reasoned that a defense of others jury instruction would not be appropriate in this case because the testimony established that the threat was made to appellant and was not made to his brother. (Tr. 582). {¶ 12} Appellant finds fault with this determination. He contends that his own testimony established that he was fearful for his brother's, Trevis, life. Thus, he contends that this evidence is sufficient to sustain a defense of others jury instruction, and, as such, the trial court abused its discretion in refusing to give the requested instruction. {¶ 13} When reviewing a court's refusal to give a requested jury instruction, an appellate court considers whether the trial court's refusal to give a requested instruction was an abuse of discretion under the facts and circumstances of the case. Statev. Wolons (1989), 44 Ohio St. 3d 64. {¶ 14} A defendant is entitled to a jury instruction on the defense of others if he introduces sufficient evidence that, if believed, raises a question in the minds of reasonable persons pertaining to such issue. See State v. Melchior (1978),56 Ohio St. 2d 15. The elements of the defense of others are as follows: (1) that he, in good faith and upon reasonable grounds, believed that a family member was in imminent danger of bodily harm, (2) that he used a reasonable degree of force to defend the family member, and (3) that he used the same force that he would be entitled to use in self-defense. State v. Sochor (July 26, 1999), 5th Dist. No. 1998CA00139, citing State v. Williford (1990), 49 Ohio St. 3d 247, 250. A defendant need only provide evidence of a nature and quality sufficient to raise the defenses rather than prove the applicability of it by a preponderance of the evidence. State v. Robinson (1976), 47 Ohio St. 2d 103. {¶ 15} The first prong of defense of others was not sufficiently established as to entitle appellant to a defense of others instruction. Testimony clearly established that any allegedly threatening remarks made by Austin were directed toward appellant. (Tr. 445, 535). Appellant specifically testified that Austin threatened to kill him. (Tr. 535). There was no testimony that Austin threatened to kill his brother. The majority of appellant's testimony is that he thought Austin was going to kill him. (Tr. 538-539, 543). {¶ 16} Appellant also testified that Trevis was in Austin's potential line of fire, since Trevis' minivan was parked behind appellant's car. (Tr. 544). Appellant further stated that he feared for his brother's safety. (Tr. 544). However, this testimony does not provide a sufficient basis to show that he had a reasonable belief that Trevis was in imminent danger of bodily harm. An entire reading of appellant's testimony overwhelmingly establishes that no threat was made to Trevis; neither Trevis nor appellant testified that Austin threatened Trevis. When the evidence is devoid of any indication that the family member was threatened, a defense of others instruction is not warranted. SeeWilliford, 43 Ohio St.3d at 250 (stating that a defense of others instruction should have been given because actual testimony established that the family member the accused claimed to be protecting had actually been threatened with physical harm). As there is no evidence that Trevis was threatened, the defense of others instruction was not warranted. The trial court did not abuse its discretion. This assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER TWO {¶ 17} "The trial erred in prohibiting the appellant from introducing evidence regarding the victim's reputation for carrying a gun and possession of cocaine thereby impermissible limiting appellant's ability to establish his defense of self-defense." {¶ 18} Appellant argues that the trial court prevented him from introducing reputation and specific instances of conduct evidence at trial. Also under this assignment of error he argues that the trial court erred by denying him the opportunity to present evidence that at the time of his death, Austin had crack cocaine on his person. He contends that these errors prevented him from establishing his affirmative defense of self-defense. {¶ 19} In meeting the burden to prove self-defense, the defendant must establish in part a bona fide belief that he was in imminent danger of death or great bodily injury. State v.Robbins (1979), 58 Ohio St. 2d 74, 80. In order to prove the defendant's state of mind, a court can allow the defendant to testify about the victim's reputation for violence and his knowledge of specific instances of the victim's prior violent conduct. See, e.g. State v. Baker (1993), 88 Ohio App. 3d 204,208. {¶ 20} The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St. 3d 173. Therefore, we will not disturb a trial court's evidentiary ruling unless we find said ruling to be an abuse of discretion; i.e. unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Statev. Adams (1980), 62 Ohio St. 2d 151, 157. {¶ 21} Prior to trial, the state made an oral motion in limine requesting that the court prevent defendant from introducing evidence regarding Austin's reputation as a violent person and that cocaine and marijuana were found on Austin after the shooting. (Tr. 12-15, 28-33). As to the introduction of reputation and specific instances of Austin's conduct, the trial court reserved ruling until such evidence was introduced at trial. (Tr. 15). However, as to the introduction of the cocaine and marijuana found on Austin's person, the trial court sustained the state's motion. (Tr. 33). In coming to this determination the court stated, "If you feel that something else has developed through the course of the trial, Mr. Koukoutas [defense attorney], if you wish to bring it back up and ask the Court to reconsider the State's motion and the ruling, I certainly shall." (Tr. 33). {¶ 22} Addressing appellant's argument as to reputation testimony, we note that during the trial defense counsel questioned multiple witnesses about Austin's reputation in the community. Officer Anthony Jackson testified that Austin was abrasive, intimidating and a bully. (Tr. 235). Sergeant John Dittmore when asked by defense counsel as to whether he had any knowledge of whether Austin was an aggressive person responded that he did not know Austin personally. (Tr. 263). Officer Gibran Baskerville was asked by defense counsel whether Austin was an aggressive person or a bully. (Tr. 292). He responded that Austin was not and then stated that, "he never had a problem with him being a bully with me." (Tr. 293). Lopes testified that Austin had a reputation for being aggressive and a bully. (Tr. 433). He was also asked whether he had ever seen Austin with a gun in which he responded that he had not. (Tr. 435 — question asked by the state). Trevis testified that Austin had a reputation as being a bully. (Tr. 474). He was also asked whether he had ever seen Austin with a gun, he also responded that he had not. (Tr. 453). Appellant additionally testified that Austin had a reputation of being a bully. (Tr. 530). {¶ 23} The above testimony shows that Austin's reputation was admitted in trial. Furthermore, testimony was allowed as to whether witnesses had knowledge of whether Austin was known to carry a firearm. Thus, appellant's argument that he was prevented from offering testimony of Austin's reputation is misplaced. {¶ 24} However, in one instance the trial court did not permit appellant to introduce specific instances of conduct.1 Appellant asked Trevis whether he had ever seen Austin be violent with anybody. (Tr. 474). The state objected; the trial court sustained the objection, and appellant withdrew the question. (Tr. 474). Appellant did not proffer testimony as to what Trevis would testify to if he answered this question. Thus, it is unclear as to what Trevis' testimony would have established. {¶ 25} Regardless, the trial court did not err when it did not permit Trevis to testify as to Austin's specific instances of conduct. As explained above, the defendant may offer his own testimony regarding specific instances of the victim's prior violent conduct in order to establish his state of mind. Statev. Cuttiford (1994), 93 Ohio App. 3d 546, 554. However, other witnesses are not permitted to testify to the victim's specific instances of violent conduct to establish the defendant's state of mind, i.e. his bona fide belief that he was in imminent danger. State v. Mason, 6th Dist. Nos. L-02-1211, L-02-1189,2003-Ohio-5974, at ¶ 39, citing Evid.R. 405. Thus, this argument lacks merit. {¶ 26} As to the exclusion of testimony as to the crack cocaine on Austin's person at his time of death, the trial court did not err in making this ruling. The grant or denial of a motion in limine does not preserve any error for review. Statev. Hill (1996), 75 Ohio St. 3d 195, 202-203. In order to preserve the error, the evidence must be presented at trial, and a proper objection lodged. State v. Brown (1988), 38 Ohio St. 3d 305, at paragraph three of the syllabus; State v. Grubb (1986),28 Ohio St. 3d 199, at paragraph two of the syllabus. An appellate court will then review the correctness of the trial court's ruling on the objection rather than the in limine ruling. See Wray v.Herrell (Feb. 24, 1994), 4th Dist. No. 93CA08; State v.Hapney, 4th Dist. Nos. 01CA30, 01CA31, 2002-Ohio-3250, at ¶ 55. {¶ 27} During trial, appellant did not try to introduce the evidence of the crack cocaine. Thus, this issue was not preserved for appeal. {¶ 28} However, even if it was, the argument would still fail. Evidence of drug activity on the part of the victim is admissible only insofar as it is relevant to the claim of self-defense. State v. Silva (Feb. 11, 1991), 5th Dist. No. CA-8047, citing State v. Randle (1980), 69 Ohio App. 2d 71. Appellant's claim of self-defense appeared to be based on Austin's violent nature and fear for his life, not over the fact that Austin was allegedly a drug dealer. Therefore, the crack cocaine does not appear to be relevant. It would have been relevant if this was a shooting over a drug deal gone wrong. {¶ 29} Notwithstanding, even if it were relevant, sufficient other evidence was introduced which if believed could lead the jury to believe that Austin was a drug dealer. Testimony from numerous witnesses established that the alleged altercation between Austin and appellant was over a $2,500 drug debt appellant's father owed to Austin. Thus, admission of evidence that Austin had crack cocaine on him at the time of his death would not have added additional information for the jury to consider when determining self-defense. Considering all other evidence, the failure to admit this evidence would have been harmless at most. State v. Moreland (1990), 50 Ohio St. 3d 58,65 (stating error in the admission of evidence constitutes harmless error where the remaining evidence, standing alone, is overwhelming proof of defendant's guilt). This argument lacks merit. For all the above stated reasons, this assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER THREE {¶ 30} "The trial court erred in excluding evidence concerning the effects of decedent's excessive alcohol consumption." {¶ 31} Under this assignment of error, appellant argues that the trial court erred when it did not allow the coroner, Dr. Murthy, to testify as to whether excessive alcohol consumption would exacerbate aggressiveness in a person with an aggressive personality. The state counters this argument by claiming that Dr. Murthy was not capable of answering the question. {¶ 32} The colloquy between defense counsel and Dr. Murthy at issue is as follows: {¶ 33} "Q. All right. In this case, sir, you indicated that there was a blood alcohol level of .15? {¶ 34} "A. Yes. {¶ 35} "Q. Given what you indicated — what you testified to regarding Dana's height, weight, lack of body fat, taking all that into account, what does the .15 blood alcohol mean? {¶ 36} "A. Well, a person with .15 blood alcohol, the effect of that on an individual has a tremendous variation. Some people become sleepy, some people become talkative, and some people lose their — lose their inhibition. So different people have different aspects of their effect on the human body by alcohol, but — again, so it's many variable factors. And that's all I can say. {¶ 37} "* * * {¶ 38} "Q. Okay. And Doctor, you also mentioned about how alcohol affects people differently, makes some people sleepy, makes other people lose their inhibitions. Alcohol can also make a person be aggressive, right? {¶ 39} "A. Yes. Depends upon the person's personality and how they react. A lot of variable factors are there. {¶ 40} "Q. Okay. Is it fair to say that if a person has an aggressive personality to begin with that alcohol may exacerbate that aggressiveness?" (Tr. 379-381). {¶ 41} At this point the state objected and the court sustained the objection. {¶ 42} Given the above colloquy, the trial court did not abuse its discretion in sustaining the objection. Dr. Murthy specifically testified that a .15 blood alcohol level has different effects on individuals. (Tr. 380). According to Dr. Murthy, there are a lot of variable factors that affect how the alcohol will react with the individual. (Tr. 381). Thus, by his own admission, he was not capable of answering the question. Given all the above, this assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER FOUR {¶ 43} "The trial court abused its discretion by admitting into evidence crime scene photographs which were repetitive, cumulative, inflammatory and unduly prejudicial." {¶ 44} Under this assignment of error appellant contends that three of the photographs should have been excluded from evidence because they were repetitive and the probative value was substantially outweighed by the danger of unfair prejudice. The state contends that each of these three pictures depicts different wounds and rebuts appellant's contention that he was blindly shooting in Austin's direction. {¶ 45} "Decisions on the admissibility of photographs are `left to the sound discretion of the trial court.'" State v.Coley, 93 Ohio St. 3d 253, 265, 2001-Ohio-1340, quoting State v.Slagle (1992), 65 Ohio St. 3d 597. In a non-capital case, the admission of potentially prejudicial photographs is determined under a balancing test; the probative value of the photographs must be outweighed by the danger of unfair prejudice to warrant exclusion. State v. Franklin (1991), 62 Ohio St. 3d 118, 125; Evid.R. 403. Photographs may be used to corroborate the testimony of witnesses, to help establish the intent of the accused, or to show the nature and circumstances of the crime. See State v.Jalowiec, 91 Ohio St. 3d 220, 230, 2001-Ohio-26. {¶ 46} The first picture, exhibit 11, is a picture of Austin lying next to his car. It is not a close-up picture and none of the gunshot wounds are clearly visible in this picture. However, it is the only picture that is a full body shot of Austin and shows his position when he died. This photograph corroborates testimony by some of the witnesses and, as such, it shows the nature and circumstances of the crime. Id. This photograph is not repetitive and its probative value is not outweighed by its prejudicial effect. Consequently, the trial court did not abuse its discretion in allowing the admission of this photograph. {¶ 47} The other two pictures, exhibits 12 and 13, are close-up pictures of Austin's face that show the gunshot wound to Austin's head. These are the only two pictures that show the gunshot wound to Austin's head. Consequently, not only do they corroborate the coroner's testimony as to the gunshot wound to the head, but they also show the nature and circumstances of the crime. Id. The probative value outweighed any prejudicial effect. {¶ 48} That said, while these two pictures are taken at slightly different angles, it could be determined that they are repetitive as to the showing of the gunshot wound to the head. They both clearly show the exit and entrance wound to the right forehead. The only difference between the two pictures is that exhibit 13 is a slightly closer view, a front view of Austin's face, and was taken after some of the blood was cleaned from Austin's face. Exhibit 12, on the other hand, is not as close, is a profile picture of the right side of Austin's face and was taken at the scene. Therefore, the admission of one of these pictures, instead of both, would have been sufficient to show the jury the nature and circumstance of the crime. {¶ 49} Yet, even if the pictures are repetitive and it was error to admit them both, it is not such an error as to mandate a reversal of the conviction. State v. Moore, 81 Ohio St. 3d 22,32-33, 1998-Ohio-441. The Supreme Court has stated that admission of photographs showing wounds from varying distances is regarded as nonreversible error. State v. Thompson (1987),33 Ohio St. 3d 1, 9. There is no doubt that any such error here is harmless because of the abundant evidence against appellant. See Id. and analysis under the sixth assignment of error. Thus, given all the above reasons, this assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER FIVE {¶ 50} "Appellant was denied a fair trial in violation of the united states and ohio constitutions due to the ineffective representation of trial counsel." {¶ 51} Appellant argues that trial counsel was ineffective for failing to request an instruction on the lesser-included offenses of voluntary and involuntary manslaughter. The state counters this argument by contending that such requests are within the parameters of trial strategy. {¶ 52} The standard of review of an ineffective assistance of counsel claim is well established. Pursuant to Strickland v.Washington (1984), 466 U.S. 668, 687, in order to prevail on such a claim, appellant must demonstrate both (1) deficient performance, and (2) resulting prejudice, i.e., errors on the part of counsel of a nature so serious that there exists a reasonable probability that, in the absence of those errors, the result of the trial would have been different. State v. Bradley (1989), 42 Ohio St. 3d 136. {¶ 53} In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Id. at 142. Because of the difficulties inherent in determining whether effective assistance of counsel was rendered in any given case, a strong presumption exists that counsel's conduct fell within the wide range of reasonable, professional assistance. Id. {¶ 54} In order to warrant a reversal, appellant must additionally show he was prejudiced by counsel's ineffectiveness. This requires a showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 136. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. {¶ 55} Appellant fails to meet the first prong of ineffective assistance of counsel; i.e. that his counsel's performance fell below an objective standard of reasonableness. The failure to request a jury instruction on a lesser-included offense is presumed to be a matter of trial strategy, and, therefore, does not per se establish ineffective assistance of counsel. State v.Griffie, 74 Ohio St. 3d 332, 333, 1996-Ohio-71; State v.Clayton (1980), 62 Ohio St. 2d 45; State v. Boone, 5th Dist. No. 2001CA00167, 2001-Ohio-7044. This is particularly true when the defendant presented a self-defense claim and does not want to confuse the jury or reduce the possibility of obtaining an acquittal. See State v. Harris (1998), 129 Ohio App. 3d 527,533; State v. Combs, 5th Dist. No. 2001CA00222, 2002-Ohio-1136 (pursuing a defense of self-defense is an attempt to gain a complete acquittal). Thus, appellant has failed to overcome the presumption that trial counsel employed sound trial strategy in not requesting a jury instruction on the crime of voluntary or involuntary manslaughter. See State v. Irwin, 4th Dist. Nos. 03CA13, 03CA14, 2004-Ohio-1129. This assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER SIX {¶ 56} "The verdict is against the manifest weight and sufficiency of the evidence and contrary to law." {¶ 57} Appellant argues that he proved by a preponderance of the evidence that he acted in self-defense at the time of the shooting. Thus, he contends that the state did not prove by proof beyond a reasonable doubt that appellant acted purposefully in causing Austin's death. Accordingly, he insists that the verdict neither is supported by sufficient evidence nor is supported by the weight of the evidence. SUFFICIENCY OF THE EVIDENCE {¶ 58} An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id. {¶ 59} Appellant was charged with one count of murder pursuant to R.C. 2903.02(A) and/or (B) with a firearm specification pursuant to R.C. 2941.145. R.C. 2903.02 states: {¶ 60} "(A) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy. {¶ 61} "(B) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or2903.04 of the Revised Code." {¶ 62} The indictment stated that the underlying offense for R.C. 2903.02(B) was felonious assault. Felonious assault is defined as: {¶ 63} "(A) No person shall knowingly do either of the following: {¶ 64} "(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance." R.C. 2903.11(A)(2). {¶ 65} Appellant asserted the affirmative defense of self-defense, which is an assertion that his actions were justified. In order to establish the affirmative defense of self-defense, an appellant generally has to show three elements: (1) the defendant was not at fault in creating the violent situation; (2) the defendant has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape was the use of force; and (3) the defendant did not violate any duty to retreat. State v. Perry, 5th Dist. No. 02CA77, 2003-Ohio-6097, at ¶ 25, citing Robbins,58 Ohio St. 2d 74. {¶ 66} Viewing the evidence in the light most favorable to the state, appellant's sufficiency of the evidence argument fails. The state presented evidence that appellant shot Austin and that one of the gunshot wounds was fatal. (Tr. 364, 537). The criminalist testified that all of the shots fired that night in that street came from the same gun. (Tr. 496). Furthermore, the state provided evidence that at the time of the incident, Austin did not have a gun on his person and that no one had seen him with a gun. (Tr. 242, 320, 321, 435, 453). The state also presented evidence, which if believed, could establish that prior to the incident there was no altercation between appellant and Austin. (Tr. 409). Thus, the effect of all of this evidence was that appellant killed Austin and, at the time, he did not have a bona fide belief that he was in imminent danger of death or great bodily harm. Accordingly, the state presented sufficient evidence to prove that appellant committed the crime he was charged with. This argument lacks merit. MANIFEST WEIGHT OF THE EVIDENCE {¶ 67} On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine 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 judgment must be reversed. The discretionary power to grant a new hearing should be exercised only in the exceptional case in which the evidence weighs heavily against the judgment. State v. Thompkins, 78 Ohio St. 3d 380,387, 1997-Ohio-52, citing State v. Martin (1983),20 Ohio App. 3d 172, 175. Because the trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v.DeHass (1967), 10 Ohio St. 2d 230. {¶ 68} The testimony and evidence at trial could be viewed in two different ways. In the best possible light to appellant, it could be seen as establishing that he acted in self-defense. Trevis testified that there was an altercation, i.e. argument between Austin and appellant at the party. This altercation arose from a $2,500 crack cocaine debt that appellant's father owed to Austin. Appellant testified that this altercation escalated in front of Stella's bar where Austin told appellant he was going to kill him. According to appellant, Austin turned his back and began walking toward his car, then Austin began to turn around and looked as if he was going to pull a gun and shoot appellant. Appellant stated that he saw a gun. That's when, according to appellant, he began running towards his car and at the same time began shooting at Austin. Appellant claimed to be in fear for his life and that was why he was shooting. Testimony from other individuals established that Austin had a reputation for being a bully and for having an aggressive personality. If the jury believed this testimony, it could support a finding for self-defense. {¶ 69} However, testimony offered by other individuals, if believed by the jury could establish that appellant did not have a bona fide belief that he was in danger of his life. Lopes testified that there was no altercation at the party between Austin and appellant. Moreover, even if the jury believed that an altercation had occurred between Austin and appellant over the $2,500 appellant's father owed to Austin, appellant agreed to go to Stella's where he knew Austin was also going. Testimony established that appellant and Austin had known each other for years and that Austin had a reputation for being a bully and aggressive. Despite this knowledge, appellant still went to Stella's Bar. This could have indicated to the jury that appellant did not fear imminent harm from Austin. {¶ 70} Furthermore, testimony established that Austin did not have a gun on him and neither Trevis nor Lopes had ever seen Austin with a gun. Additionally, a picture of shell casings could shed doubt on appellant's claim that he was running away from Austin while he was shooting. The picture of shell casings show that five of the shell casings dropped in close proximity to each other, indicating that appellant was in the same area when he shot those five shots. Thus, this testimony could establish that at the time of the shooting appellant did not have a bona fide belief that he was in danger. {¶ 71} The jury was in the best position to weigh the credibility of the witnesses. The jury was instructed on self-defense and still returned a guilty verdict. Thus, the jury did not believe that appellant had a bona fide belief that he was in imminent danger. Considering all of the above, we cannot find that the verdict was against the manifest weight of the evidence. This argument lacks merit. For all the above reasons, this assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER SEVEN {¶ 72} "The cumulative effect of errors during the trial resulted in appellant being denied a fair trial." {¶ 73} Appellant's argument under this assignment of error is based upon State v. DeMarco (1987), 31 Ohio St. 3d 191. InDeMarco, the Supreme Court stated errors in the trial taken singularly may not rise to the level of prejudicial error, but when the cumulative effect of the errors deprives a defendant of the constitutional right to a fair trial the conviction will be reversed. Id. at paragraph two of the syllabus. However, the doctrine is not applicable when there are not multiple instances of harmless error. State v. Garner, 74 Ohio St. 3d 49, 64,1995-Ohio-168. {¶ 74} As explained under the first six assignments of error, there were not multiple instances of harmless error (at most there was one instance of harmless error). Thus, the cumulative error doctrine is not applicable. This argument lacks merit. {¶ 75} For the foregoing reasons, the judgment of the trial court is hereby affirmed. Donofrio, J., concurs. DeGenaro, J., concurs. 1 Out of all of the witnesses, appellant only tried to ask for specific instances of conduct twice; once to Officer Baskerville and once to Trevis. Officer Baskerville was asked if he had ever known Austin to be aggressive or a bully with other people. (Tr. 293). Over the state's objection, the trial court permitted Officer Baskerville to answer the question. He stated that he had never known him to be bullying or aggressive with other people. (Tr. 293).

2016-07-06 06:36:48.120218+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellant, Gary Boreman, appeals from the order of the Summit County Court of Common Pleas, which denied his motion for summary judgment and granted summary judgment in favor of appellee, Stephen T. Labay, Jr. This Court reverses and remands. I. {¶ 2} This matter arises out of the removal and disposal of a vehicle, pursuant to R.C. 4513.61. Appellant was the owner of a 1998 Toyota Tacoma truck. On November 19, 2002, appellant met a woman at a bar and loaned her the truck, so she could drive into town to buy cigarettes. The woman never returned with cigarettes or the truck. {¶ 3} Pursuant to the parties' amended stipulation of facts submitted in the trial court, on November 20, 2002, appellant telephoned the Wayne County Sheriff's office to report that his truck had been stolen. The parties further stipulated that appellant filed a written police report regarding the missing truck with the Wayne County Sheriff's office on November 21, 2002 and again on December 9, 2002. The Sheriff's office noted on November 21, 2002 the belief that appellant's truck was not stolen, because appellant "freely lent the vehicle to an unknown person." On December 9, 2002, however, the Sheriff's office noted "unauthorized use of a motor vehicle," pursuant to R.C. 2913.03, on appellant's incident report. {¶ 4} The parties entered into the following further stipulations. On November 24, 2002, the Akron Police Department ("APD") determined that a 1998 Toyota Tacoma truck had been left on a street in Akron. Upon determination that there was no computer record of a theft report involving the truck, the APD ordered Johnny's Auto Truck Towing, Inc. to tow the truck. The APD then conducted a search of Bureau of Motor Vehicles ("BMV") records and determined that appellant was the registered owner of the truck. The APD sent certified notice to appellant, directing appellant to reclaim the truck from the towing company within 10 days; otherwise, the truck would be disposed pursuant to statute. While the post office attempted delivery of the certified notice twice, appellant never received the notice. {¶ 5} It is undisputed that appellant did not reclaim his truck from the towing company within 10 days of the mailing of the notice. On February 19, 2003, a designated representative of the APD executed an unclaimed and abandoned junk motor vehicle affidavit, which a representative of the towing company presented to the Summit County Clerk of Courts to receive a salvage title for the truck. On February 28, 2003, appellee purchased the truck from the towing company and received a salvage title to the truck from the county clerk's office the same day. {¶ 6} On July 17, 2003, appellee filed a complaint for declaratory judgment in the trial court, seeking both a declaration that he is the rightful owner of the 1998 Toyota Tacoma truck and an order directing the BMV to register the truck in appellee's name. Earlier, when appellee had attempted to register the truck in his name, the BMV refused, asserting that appellant was the owner of the truck. In his complaint, appellee named appellant as a party, who "has a potential interest in the personal property of this action[.]" Appellee further averred in the complaint that the APD determined that the truck had been abandoned and that they complied with all requirements of R.C. 4513.61 regarding disposal of the truck. {¶ 7} Appellant answered that the truck was a stolen vehicle at the time of its disposal and that salvage title should not have issued. Appellant requested a declaration from the court that he is the sole owner of the truck and that salvage title is invalid. {¶ 8} The parties filed their amended stipulation of facts and competing motions for summary judgment. The parties agreed that the sole issue for the trial court's determination was whether the truck was abandoned, so that R.C. 4513.61 was applicable to provide for the truck's disposal, or whether the truck was stolen, so that the statute did not apply to allow for disposal. The trial court denied appellant's motion for summary judgment and granted appellee's motion for summary judgment, declaring appellee to be the owner of the truck and ordering the BMV to register the title accordingly. Appellant timely appealed, setting forth one assignment of error for review. II. ASSIGNMENT OF ERROR "the trial court erred as a matter of law by holding appellant Gary Boreman's motor vehicle abandoned within the meaning of R.C.4513.61 and granting summary judgment to appellee." {¶ 9} Appellant argues that the trial court erred by finding that appellant's truck was abandoned, thereby finding summary judgment appropriate for appellee. This Court agrees. {¶ 10} This Court reviews an award of summary judgment de novo.Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. This Court applies the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the nonmoving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 12. {¶ 11} Pursuant to Civ.R. 56(C), summary judgment is proper if: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977),50 Ohio St.2d 317, 327. {¶ 12} To prevail on a motion for summary judgment, the party moving for summary judgment must be able to point to evidentiary materials that show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Once a moving party satisfies its burden of supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or denials of the moving party's pleadings. Rather, the non-moving party has a reciprocal burden of responding by setting forth specific facts, demonstrating that a "genuine triable issue" exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 449. {¶ 13} This case concerns the applicability of R.C. 4513.61 to the subject truck. The statute addresses the storage, reclamation or disposal of vehicles in possession of law enforcement officers or left on public property. R.C. 4513.61 states in relevant part: "The sheriff of a county or chief of police of a municipal corporation * * * may order into storage any motor vehicle * * * that has been left on a public street * * *. The sheriff or chief of police shall designate the place of storage of any motor vehicle so ordered removed. "The sheriff or chief of police immediately shall cause a search to be made of the records of the bureau of motor vehicles to ascertain the owner and any lienholder of a motor vehicle ordered into storage by the sheriff or chief of police * * * and, if known, shall send or cause to be sent notice to the owner or lienholder at the owner's or lienholder's last known address by certified mail with return receipt requested, that the motor vehicle will be declared a nuisance and disposed of if not claimed within ten days of the date of mailing of the notice. The owner or lienholder of the motor vehicle may reclaim it upon payment of any expenses or charges incurred in its removal and storage, and presentation of proof of ownership * * *. "If the owner or lienholder makes no claim to the motor vehicle within ten days of the date of mailing of the notice, and if the vehicle is to be disposed of at public auction as provided in section 4513.62 of the Revised Code, the sheriff or chief of police shall file with the clerk of courts of the county in which the place of storage is located an affidavit showing compliance with the requirements of this section. Upon presentation of the affidavit, the clerk, without charge, shall issue a salvage certificate of title, free and clear of all liens and encumbrances, to the sheriff of chief of police. If the vehicle is to be disposed of to a motor vehicle salvage dealer or other facility as provided in R.C. 4513.62 of the Revised Code, the sheriff or chief of police shall execute in triplicate an affidavit, as prescribed by the registrar of motor vehicles * * *. Upon presentation of a copy of the affidavit by the motor vehicle salvage dealer, the clerk of courts, within thirty days of the presentation, shall issue to such owner a salvage certificate of title, free and clear of all liens and encumbrances." {¶ 14} The parties do not dispute that R.C. 4513.61 is not applicable to stolen vehicles. In enacting that statute, the General Assembly sought to provide a procedure for law enforcement agencies to address vehicles which are abandoned on public or private property. Doughman v. Long (1987), 42 Ohio App.3d 17, 21. The statute is premised upon the idea of implied consent, i.e., that the owner of a vehicle impliedly consents to the necessary removal of a vehicle, where the owner has knowingly left the vehicle in a public place beyond the statutory time period. MotorsIns. Corp. v. Bougher (Dec. 16, 1981), 9th Dist. No. 1077. Where a vehicle is stolen, however, the owner cannot be said to have abandoned the vehicle. State Farm Ins. Co. v. Jones, 11th Dist. No. 2002-P-0063, 2003-Ohio-4035, at ¶ 14. "The thief abandons it and the owner is helpless to stop him. The owner's consent in not involved. Further, a police official is not the owner's agent and cannot give consent for the owner. Therefore, since there is not implied consent, R.C. 4513.60 through 4513.63 do not apply." Id. {¶ 15} While neither appellant nor appellee dispute that R.C. 4513.61 is inapplicable, if appellant's truck was stolen at the time of disposal, the parties dispute the status of the truck at that time. {¶ 16} In his motion for summary judgment, appellee argued that the truck was abandoned; because appellant had loaned his truck to a recent acquaintance, with the understanding that the acquaintance would use the truck to buy cigarettes and return. Appellee asserted that this is not a case, where the acquaintance stole and subsequently abandoned the truck, so as to preclude application of R.C. 4513.61. Rather, appellee argued that the acquaintance, with consent to use the truck, merely exceeded that authority in regard to her use of the vehicle. {¶ 17} In support of his motion for summary judgment, appellee averred in affidavit merely that the APD ordered the towing of the truck after the department determined that the truck was "not stolen, as of above time date." Appellee further averred that the affidavit executed by the APD indicated that the department had complied with the procedural and notice requirements of R.C. 4513.61, and that he secured salvage title to the truck from the clerk of courts. Finally, appellee attested to the expenses he incurred in regard to the truck. {¶ 18} In his competing motion for summary judgment and response in opposition to appellee's motion, appellant argued that the truck was stolen; because his acquaintance deprived him of the truck, within the context of a theft, by knowingly obtaining or exerting control over the truck beyond the scope of appellant's consent. {¶ 19} In appellant's affidavit in support of his proposition that the truck was stolen, appellant conceded that he had loaned the truck to a woman he met at a bar. He averred, however, that he loaned the truck for the limited purpose that the acquaintance drive into town to buy cigarettes and then return. Appellant averred that he telephoned the Wayne County Sheriff's department the next day to report the truck stolen and that he followed up by filing two incident reports regarding the theft of the truck. In addition, appellant averred in affidavit that he is a truck driver, and he never received notice that he must reclaim his truck within 10 days. He averred, however, that had he received notice, he would have signed for it and made arrangements to reclaim the truck. There is no dispute that certified mail notice to appellant was returned unclaimed.1 {¶ 20} In its order, the trial court defined "abandoned property" and "stolen property" and found that, because appellant had some responsibility for the abandonment of the vehicle, R.C. 4513.61 would apply. The trial court further found that, because the APD properly followed the procedures set forth in the statute, notwithstanding the actual failure of notice to appellant, the truck was properly declared abandoned. Based on that reasoning, the trial court denied appellant's motion for summary judgment, granted appellee's motion for summary judgment, declared appellant to be the owner of the truck, and ordered the BMV to register the title accordingly. {¶ 21} R.C. 4513.61 does not define the term "abandoned vehicle," other than to establish a threshold time period of 48 hours, during which the vehicle must be left on public property. Because the statute fails to define the term, this Court must look to the common, everyday meaning of the term to determine its meaning. State ex rel. Celebrezze v. AllenCty. Bd. Of Commrs. (1987), 32 Ohio St.3d 24, 27. {¶ 22} Black's Law Dictionary (7 Ed. 1999) 1 defines "abandonment" as "[t]he relinquishing of a right or interest with the intention of never again claiming it." "Abandoned property" is defined as "[p]roperty that the owner voluntarily surrenders, relinquishes, or disclaims." Id. at 1233. The Doughman court held that "[a]bandoned property then is property over which the owner has relinquished all right, title, claim, and possession with the intention of not reclaiming it or resuming its ownership, possession or enjoyment." Doughman, 42 Ohio App.3d at 21. "Stolen property," on the other hand, is "[g]oods acquired by larceny, robbery, or theft." Black's Law Dictionary (7 Ed. 1999) 1432. {¶ 23} In this case, the only evidence appellee presented regarding the status of the truck was his affidavit that he relied on the APD's determination that the truck had not been reported as stolen and the department's unclaimed and abandoned junk motor vehicle affidavit asserting compliance with the requirements of R.C. 4513.60 through 4513.63. This Court finds that such evidence was sufficient to find that appellee met the threshold Dresher burden. {¶ 24} Viewing the facts in the light most favorable to appellant, i.e., the non-moving party, this Court finds that appellant met his reciprocal burden of responding by setting forth specific facts to overcome appellee's evidence. Appellant averred in affidavit that he loaned his truck to a new acquaintance for a specific limited purpose. Appellant further averred regarding the efforts he made to report that the truck had been stolen, after the acquaintance exceeded that limited authority. Both appellee and appellant further stipulated to appellant's efforts. In addition, as noted in Exhibit B, attached to the parties' amended stipulation of facts, the APD documented the "unauthorized use of a motor vehicle" in regard to the truck, which offense is categorized as a theft offense. {¶ 25} Under the circumstances, this Court finds that there is no genuine issue of material fact, and that appellant is entitled to judgment as a matter of law. Appellant presented sufficient evidence to establish that it was not his intent to have relinquished all rights, title or claim to ownership of the truck, thereby overcoming appellee's evidence and meeting his own Dresher burden. Moreover, appellee presented no further evidence to rebut appellant's evidence that he had not relinquished his claim to the truck or that he would have reclaimed the truck had he received notice of its impending disposal. Appellee's attempt to bootstrap the APD's assertion of compliance with the statutory notice provision to a finding that the truck was, in fact, abandoned is insufficient to overcome appellant's evidence to the contrary, especially in light of the APD's failure to actually effect notice to appellant. {¶ 26} This is a case where appellant's truck was stolen, then abandoned by a thief, at the time of its removal and disposal. Consequently, because this Court finds that appellant's truck was stolen, rather than abandoned, the removal and disposal provisions of R.C. 4513.61 were inapplicable. Because R.C. 4513.61 was not applicable to permit removal and disposal of the 1998 Toyota Tacoma truck, the trial court erred by declaring appellee to be the owner of truck and by ordering the BMV to register the title to the vehicle in appellee's name. {¶ 27} In light of the above facts and applicable law, this Court finds that summary judgment was improperly granted in favor of appellee and denied as against appellant. Appellant's assignment of error is sustained. III. {¶ 28} Appellant's assignment of error is sustained. Accordingly, the order of the Summit County Court of Common Pleas is reversed and the cause remanded to the trial court for proceedings consistent with this opinion. Judgment reversed and cause remanded. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of 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 appellee. Exceptions. Batchelder, J. Concurs. 1 Appellant does not assign as error the issue of defective notice; and this Court, therefore, does not address the issue. We leave for another day the determination whether the language pursuant to R.C. 4513.61 requiring that notice be sent by certified mail, with return receipt requested, is merely a perfunctory requirement or whether the language confers a right concomitant with the notion of due process.

2016-07-06 06:36:48.229816+00

OPINION {¶ 1} This is an appeal and cross appeal from the Common Pleas Court of Stark County. Prior appeals in this cause have been filed in this court and with the Ohio Supreme Court. STATEMENT OF THE FACTS AND CASE {¶ 2} We shall take the summary of the facts in part from the prior appeals and from the files and briefs. {¶ 3} Appellant may be referred to herein as "Plaintiff" and Appellees-Cross Appellants as "Defendants" or as Appellants and Appellees. {¶ 4} In June of 1998, Appellant, Lauri Weinfeld, purchased land in Perry Township, Ohio. Appellees reside on an adjoining parcel. Appellant's property is known as "Lakeside Center" (hereinafter "center") and contains an enclosed building, a gazebo and gardens on a lake known as "Lake Dee Mar." Said center is used for recreational purposes including weddings, receptions, social gatherings and meetings. Appellant operates the center pursuant to a conditional use permit granted by the Perry Township Board of Zoning Appeals (hereinafter "Board"). {¶ 5} The granting of such use permit and a variance have also been the subject of litigation and appeals but is not involved in this appeal. {¶ 6} On July 22, 1999, Appellant filed a complaint against Appellees claiming nuisance, trespass, civil conspiracy, defamation and intentional interference with contract. Appellant, in pertinent part, alleged Appellees intentionally and deliberately operated noisy pieces of lawn equipment in an attempt to disrupt the events being conducted at the center. Appellant sought money damages and injunctive relief. Appellant also filed a motion for a temporary restraining order restraining appellees from further disruption. Appellees counterclaimed on various causes of action. {¶ 7} On October 26, 1999, Herbert and Tammy Barlow filed a complaint against the Appellees in the Massillon Municipal Court, alleging that Appellees had intentionally interfered with their wedding, which took place at Lakeside Center on July 11, 1999. Such case was transferred to the Stark County Common Pleas Court and consolidated with the case pending between Appellant and Appellees but has, after trial and appeal, been resolved. {¶ 8} The case was set for jury trial in November, 2003, and prior to such trial, the Plaintiff-Appellant voluntarily dismissed her claims for defamation and invasion of privacy and Defendants-Appellees dismissed their claims for zoning violations and violations of deed restrictions. {¶ 9} The jury found in favor of the defendants on all causes of action, awarded no damages to the plaintiff, and found in jury interrogatories that the plaintiff failed to prove intentional interference with her business, intentional infliction of emotional distress, nuisance or trespass. Also the jury denied the plaintiff's claims of a defective septic system and claims that the storage of farm machinery by the defendants constituted and other actions a nuisance, trespass or violation of deed restrictions. {¶ 10} The jury awarded Appellees compensatory damages of $5,412.38 and punitive damages of $250,000.00 on their claim of invasion of privacy. Attorney fees were stipulated at $10,000.00. {¶ 11} On December 6, 2002, plaintiff moved for judgment notwithstanding the verdict or in the alternative for a new trial or remittitur. On June 5, 2003, the trial court overruled the plaintiff's motion for judgment notwithstanding the verdict, but granted a remitter of the punitive damages award to $35,000.00, subject to acceptance by the defendants. The defendants did not accept the remittitur. The trial court, upon rejection of the remittitur, granted a new trial on the invasion of privacy issue with respect to the defendants' counterclaim as well as on the issue of damages. {¶ 12} Appellant, Lauri Weinfeld, raises the following Assignments of Error: ASSIGNMENTS OF ERROR {¶ 13} "I. THE JURY'S VERDICT WAS INADEQUATE, UNSUPPORTED BY THE RECORD AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, THUS WARRANTING A REVERSAL AND NEW TRIAL OF THIS CASE. {¶ 14} "II. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR JNOV ON APPELLEES' COUNTERCLAIM FOR INVASION OF PRIVACY. {¶ 15} "III. THE TRIAL COURT ERRED IN PERMITTING THE TESTIMONY OF A SURPRISE WITNESS. {¶ 16} "IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A PERMANENT INJUNCTION. {¶ 17} "V. THE TRIAL COURT ERRED IN DENYING APPELLANT RELIEF FROM APPELLEES DEED RESTRICTION VIOLATIONS." {¶ 18} Appellees submit their cross-appeal with two Assignments of Error: {¶ 19} "I. THE TRIAL COURT ERRED IN GRANTING A NEW TRIAL ON DEFENDANTS' COUNTERCLAIM FOR INVASION OF PRIVACY. {¶ 20} "II. THE TRIAL COURT ERRED IN GRANTING A REMITTITUR AND REDUCING THE PUNITIVE DAMAGES AWARD." I. {¶ 21} Appellant's First Assignment claims the jury's findings were against the manifest weight of the evidence and unsupported. We disagree. {¶ 22} In reviewing the records to the manifest weight of the evidence, a reviewing court is to examine the entire record, weigh the evidence and draw all reasonable inferences, consider the credibility of the witnesses and determine "whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. Statev. Martin (1997), 78 Ohio St.3d 380. Because the trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967),10 Ohio St.2d 230. {¶ 23} Appellant has coupled her argument as to the manifest weight of the Appellee's evidence with error as to a denial of a request for a new trial (although a new trial on the invasion of privacy issue was subsequently ordered). {¶ 24} "Where trial court is authorized to grant new trial for reason which requires exercise of sound discretion, order granting new trial may be reversed only upon showing of abuse or discretion. Const. Art. 4, § 6; R.C. § 2321.17. Rohde, Admr., et al. v. Farmer (1970), 23 Ohio St.2d 82. {¶ 25} In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable.Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. We must look at the totality of the circumstances in the case sub judice and determine whether the trial court acted unreasonably, arbitrary or unconscionably. {¶ 26} We have examined the numerous references to the record by Appellant and Appellees and the jury's response to the Interrogatories propounded and, without substituting our opinion for that jury, determine that competent, credible evidence supports the jury's acceptance of the evidence it concluded to be more credible. {¶ 27} We therefore reject the First Assignment of Error of Appellant. II. {¶ 28} Appellant's Second Assignment questions the court's denial of her motion for judgment notwithstanding verdict on Appellee's counterclaim for invasion of privacy. {¶ 29} Appellant correctly identifies the standard as to a motion for judgment notwithstanding verdict as set forth in Ayres v. Woodard (1957), 166 Ohio St. 138: {¶ 30} "Test to be applied by a trial court in ruling on motion for judgment notwithstanding verdict is same test such court must apply in ruling on motion for a directed verdict. {¶ 31} In order to sustain either a motion for judgment notwithstanding verdict or a motion for directed verdict, court must view evidence received upon trial and facts established by admission in pleadings and in record in light most favorable to him against whom motion is directed and decide that upon all such evidence and facts, reasonable minds could come to but one conclusion regarding verdict. {¶ 32} In ruling on motion for judgment notwithstanding verdict, neither the weight of evidence nor the credibility of witnesses is for court's determination." {¶ 33} Also, Civil Rule 50 (A)(4) provides: {¶ 34} "When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue." {¶ 35} Civil Rule 50(B), however, limits the review by providing that no judgment (on a motion judgment notwithstanding verdict) to be rendered by the court on the ground that the verdict is against the weight of the evidence. This, as shown above, correlates with Ayers v. Woodard. {¶ 36} As to invasion of privacy, the Ohio Supreme Court has addressed such right in various cases. Historically, the review was set forth inHoush v. Peth (1956), 165 Ohio St. 35, which states: {¶ 37} "The first question presented by the defendant is whether the right of privacy exists in Ohio. {¶ 38} "This right has had an interesting history. Its basic concept in various forms is not new, but in this country its chief impetus as an independent right seems to have originated in an article by Samuel D. Warren and Louis D. Brandeis in the year 1890 in 4 Harvard Law Review, 193. The first recognition of the right by a court of dernier ressort apparently was in the case ofPavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101, 106 Am.St. Rep. 104, 2 Ann.Cas. 561. The syllabus in that case reads in part as follows: {¶ 39} "`2. A right of privacy is derived from natural law, recognized by municipal law, and its existence can be inferred from expressions used by commentators and writers on the law as well as judges in decided cases. {¶ 40} "`3. The right of privacy is embraced within the absolute rights of personal security and personal liberty. {¶ 41} "4. Personal security includes the right to exist, and the right to the enjoyment of life while existing, and is invaded not only by a deprivation of life, but also by a deprivation of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual. {¶ 42} "5. Personal liberty includes not only freedom from physical restraint, but also the right `to be let alone'; to determine one's mode of life, whether it shall be a life of publicity or of privacy; and to order one's life and manage one's affairs in a manner that may be most agreeable to him so long as he does not violate the rights of others or of the public.'" {¶ 43} Both Appellant and Appellees have discussed the extent of and requirements constituting an invasion of privacy. {¶ 44} In Sustin v. Fee (1982), 69 Ohio St.2d 143, the Court reiterated its ruling in Housh v. Peth and also quoted the Restatement of Torts: {¶ 45} "Today the intrusion into a person's seclusion is recognized as but one of four separate branches of tortious invasion of privacy. These are set out in Section 652A of the Restatement of Torts 2d, at page 376, as follows: {¶ 46} "(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other. {¶ 47} "(2) The right of privacy is invaded by * * * {¶ 48} "(a) unreasonable intrusion upon the seclusion of another * * * {¶ 49} "(b) appropriation of the other's name or likeness * * * {¶ 50} "(c) unreasonable publicity given to the other's private life * * * {¶ 51} "(d) publicity that unreasonably places the other in a false light before the public * * *." {¶ 52} "See, also, Prosser on Torts (4 Ed.), 802, Sec. 117. The development of the right of privacy as a separate tort is chronicled inZacchini v. Scripps-Howard Broadcasting Co. (1976), 47 Ohio St.2d 224,351 N.E.2d 454, reversed on other grounds (1977), 433 U.S. 562,97 S.Ct. 2849, 53 L.Ed.2d 965. {¶ 53} "The scope of a person's liability for intrusion into another's seclusion is stated in Section 652B of the Restatement of Torts 2d, as follows: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." {¶ 54} Again in M.J. DiCorpo, Inc. v. Sweeney (1994), 69 Ohio St.3d 497, the Court stated: {¶ 55} "Finally, appellees suggest that Sweeney's affidavit impugned DiCorpo by linking DiCorpo with Kelley, thereby placing DiCorpo in a false light before the public. According to appellees, this case provides us with an opportunity to recognize a cause of action in Ohio for invasion of privacy under a "false light" theory of recovery. In Yeagerv. Local Union 20 (1983), 6 Ohio St.3d 369, 372, 6 OBR 421, 424,453 N.E.2d 666, 669-670, we said, "[t]his court has recognized a cause of action for invasion of privacy in Housh v. Peth (1956), 165 Ohio St. 35 [59 O.O. 60, 133 N.E.2d 340]. However, this court has not recognized a cause of action for invasion of privacy under a `false light' theory of recovery. Under the facts of the instant case, we find no rationale which compels us to adopt the `false light' theory of recovery in Ohio at this time." Given our determination that the statements contained in Sweeney's affidavit cannot form the basis for civil liability, this case (likeYeager) is obviously not the appropriate case to consider adopting, or rejecting, the false light theory of recovery." {¶ 56} Unfortunately, these leading cases of Sustin v. Fee and DiCorpov. Sweeney involved issues of immunity and privilege, respectively, and did not provide a final answer as to whether, in an appropriate case, the court would adopt the "false light" branch of the Restatement. {¶ 57} Therefore, it remains an open question, rather than an absolute rejection whether such theory would be recognized. We do not choose to decide what constitutes an appropriate case wherein the Ohio Supreme Court would finalize such issue as we are not required in this case to reach such decision and would be reluctant, in any event, to do so without affirmative guidance from the Supreme Court. {¶ 58} We are not convinced by Appellant's argument that the area of Appellees' property as to which Appellant admittedly installed video cameras and floodlights was so public as to be compared to a roadway such as referenced in Restatement Section 652B. {¶ 59} The jury could have so found in responding to Interrogatory No. 14. {¶ 60} The fact that Appellees' actions were subject to a prior preliminary injunction does not necessarily form a basis for cameras and floodlights as other forms of bringing violations to the court's attention were available. {¶ 61} We find no abuse of discretion under the Blakemore standards as to this Second Assignment and reject such Assignment. III. {¶ 62} Appellant's Third Assignment asserts that the testimony of a surprise witness was admitted erroneously. We disagree. {¶ 63} The admission or exclusion of relevant evidence rests within the sound discretion of the trial court and that court's ruling as to such matters will not be reversed absent an abuse of discretion. See:Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66; Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271. 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. Blakemorev. Blakemore (1983), 5 Ohio St.3d 217. {¶ 64} We agree with Appellees that our opinion in Speers v.Tri-County Dermatology, Inc., (Sept. 24, 2001), Stark App. No. 2000CA00029, 2001-Ohio-1300, does not support Appellant's argument as to this Assignment of Error but Wood v. Humphries, (July 31, 1986), Tusc. App. No. 85-A08-065, of this Court is more appropriate. Such case, as Appellees note, stated: {¶ 65} "In a civil trial, neither party is required to state before trial who will be called as witnesses unless an expert witness is to be called. As to any requirement to name witnesses prior to trial, Civ. R. 26 provides inter alia: {¶ 66} "Civil Rule 26(B)(1): Parties may obtain discovery regarding . . . the identity and location of persons having knowledge of any discoverable matter. {¶ 67} "Civil Rule 26(B)(4)(b): . . . a party by means of interrogatories may require any other party (i) to identify each person whom the other party expects to call as an expert witness at trial, . . . (Emphasis added) {¶ 68} "Civil Rule 26(E)(1): A party is under a duty seasonably to supplement his response . . . to (a) the identity and location of persons having personal knowledge of discoverable matters, and (b) the identity of each person expected to be called as an expert witness at trial . . . (Emphasis added)" {¶ 69} We, therefore, reject this Third Assignment of Error. IV. {¶ 70} Appellant's Fourth Assignment as to denial of a permanent injunction, based on the jury's conclusions particularly in its responses to the Interrogatories does, contrary to Appellant's argument, form a sufficient reason for the court to refuse to exercise its discretion in favor of a permanent injunction. {¶ 71} Again, no abuse of discretion under Blakemore, supra, is found. {¶ 72} This Fourth Assignment is denied. V. {¶ 73} Appellant's Fifth Assignment references a claimed violation of the deed restrictions. {¶ 74} This Assignment reflects the court's failure to issue an injunction relative to such claimed violations. {¶ 75} The asserted violations are: {¶ 76} "The property shall be used for private residential purposes only. {¶ 77} "No commercial business of any kind shall be permitted on said lot. {¶ 78} "No nuisance of any kind shall be maintained on said premises. {¶ 79} "The owner shall maintain a generally good appearance of said premises. {¶ 80} "No water that has been used for any purpose shall be permitted to drain into Lake DeeMar. {¶ 81} "All sewage and waste water shall be drained into an approved septic tank which shall be kept in good repair at all times. {¶ 82} "Each resident shall have at least 900 feet of leech line, and no septic tank or leech line shall be constructed or maintained nearer than 100 feet from the shores of Lake Dee-Mar." {¶ 83} Appellant correctly states that interpretations of law are within the province of the court rather than the jury. The problem with this analysis is that, while the court does review the meaning or ambiguity thereof of a legal document and clauses therein, including deeds, the actual violation of a restriction is one of fact, not interpretation. {¶ 84} Also, these factual issues were submitted by jury instructions and interrogatories and the submission thereof is not an assignment of error and cannot be raised on appeal. {¶ 85} Here, Appellant states that Appellees were engaged in the commercial business of farming. While the evidence does disclose that farm equipment was stored on Appellees' land, the evidence accepted as factual by the jury was that the utilization of such equipment in farming was done elsewhere. {¶ 86} Of course, Appellant was clearly engaged in a commercial business on her property. {¶ 87} The jury, as to the other claimed violations failed to accept the evidence offered. See the responses to Interrogatories Numbers 5, 7, 9, 15, 17 and 19. {¶ 88} It is within the providence of trier of fact to accept or reject such testimony it finds to be more credible, whether presented by experts or lay witnesses. {¶ 89} Considering the findings of the jury and the evidence presented, we find no abuse of discretion relative to this Fifth Assignment, which is overruled. DEFENDANT-APPELLEES' CROSS ASSIGNMENTS OF ERROR I., II. {¶ 90} We shall consider the issues as to the two Cross Assignment of Error of Defendant-Appellees together. {¶ 91} In a very well-reasoned opinion, Judge Reinbold reviewed the issues of granting a remittitur or a new trial. In said opinion, Judge Reinbold stated: {¶ 92} "Remittitur gives the plaintiff the option of accepting a lower damages award (as determined by the trial court) or receiving a new trial. Wightman v. Consolidated Rail Corp., 86 Ohio St.3d 341, 444, 199-Ohio-119, 715 N.E.2d 546. Kachmar v. HM Health Services, 7th Dist. No. 02 CA 48, 2002-Ohio-7182. `Where the damages assessed by the jury are excessive, but not in a degree to necessarily imply the influence of passion or prejudice in their finding, the court, in the exercise of a sound discretion, may make the remittitur of the excess the condition of refusing to grant a new trial.' Larrissey v. Norwalk Truck Lines (1951),155 Ohio St. 207, 219, 98 N.E.2d 419. The Justice Pfeifer in Wightman discussed the importance of a court's authority to grant remittitur: {¶ 93} "`Remittitur plays an important role in judicial economy by encouraging an end to litigation rather than a new trial. * * * There are times when an end has its own value, with justice delivered, and not further delayed. A final judgment brings closure, certainty, and possibly a commitment to changed future behavior. These are societal benefits as well as benefits to the parties. Wrongs are righted through judgments. Our justice system does not work without finality. Until then, the system's great value is in limbo. We take little from it, but we continually feed it with our energies, intellect, and emotions. Id. at 443.' {¶ 94} "`A court has inherent authority to remit an excessive award, assuming it is not tainted with passion or prejudice, to an amount supported by the weight of the evidence. Id. at 444. The Supreme Court has established four requirements to be met before a court may grant remittitur: {¶ 95} "`unliquidated damages are assessed by a jury, {¶ 96} "`the verdict is not influence [SIC] by passion or prejudice, {¶ 97} "`the award is excessive, and {¶ 98} "`the plaintiff agrees to the reduction in damages. Id. citingChester Park v. Schulte (1929), 120 Ohio St. 273, 166 N.E. 186, paragraph three of the syllabus. {¶ 99} "When considering remittitur, the court must keep in mind the twin goals of punitive damages: punishment and deterrence. Id. at 445. The U.S. Supreme Court recently discussed the purpose and limitations of punitive damages awards in State Farm Mut. Auto. Ins. Co. v. Campbell (2003), 123 S.Ct. 1513, 1519-1520: {¶ 100} "* * * It is well established that there are procedural and substantive constitutional limitations on these awards. CooperIndustries, supra; Gore, supra, at 559, 116 S.Ct. 1589; Honda Motor Co.v. Oberg, 512 U.S. 415, 114 S.Ct. 2331, 129 L.Ed.2d 336 (1994); TXOProduction Corp. v. Alliance Resources Corp., 509 U.S. 443, 113 S.Ct. 2711,125 L.Ed.2d 366 (1993); Haslip, supra. The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor. Cooper Industries, supra, at 433,121 S.Ct. 1678; Gore, 517 U.S., at 562, 116 S.Ct. 1589; see also id., at 587, 116 S.Ct. 1589 (BREYER, J., concurring) (`This constitutional concern, itself harkening back to the Magna Carta, arises out of the basic unfairness of depriving citizens of life, liberty, or property, through the application, not of law and legal processes, but of arbitrary coercion'). The reason is that `e]lementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.' Id., at 574, 116 S.Ct. 1589; Cooper Industries, supra, at 433, 121 S.Ct. 1678 ("Despite the broad discretion that States possess with respect to the imposition of criminal penalties and punitive damages, the Due Process Clause of the Fourteenth Amendment to the Federal Constitution imposes substantive limits on that discretion"). To the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property. Haslip, supra, at 42, 111 S.Ct. 1032 (O'CONNOR, J., dissenting) (`Punitive damages are a powerful weapon. Imposed wisely and with restraint, they have the potential to advance legitimate state interests. Imposed indiscriminately, however, they have a devastating potential for harm. Regrettably, common-law procedures for awarding punitive damages fall into the latter category'). {¶ 101} "The U.S. Supreme Court identified three guideposts to determine if a punitive damages award is grossly excessive: {¶ 102} "1. the degree of reprehensivility of the defendant's conduct, {¶ 103} "2. the ratio between the compensatory and punitive damages awarded in the case, and {¶ 104} "3. the difference between the award and the civil or criminal sanctions that could be imposed for comparable misconduct. BMW v. Gore (1996), 517 U.S. 559." {¶ 105} * * * Civ. R. 59(A) states in pertinent part: {¶ 106} "(A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: {¶ 107} "* * * {¶ 108} "`(4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice; {¶ 109} "* * * {¶ 110} "`(6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case; {¶ 111} "`(7) The judgment is contrary to law; {¶ 112} "* * * {¶ 113} "`(9) Error of law occurring at the trial and brought to the attention of the trial court by the party making the application. {¶ 114} "`In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown.' {¶ 115} "The granting of a new trial lies in the Court's discretion.Rhode v. Farmer (1970), 23 Ohio St.2d 82, paragraph one of syllabus. The Ohio Supreme Court explained that: {¶ 116} "`In ruling on a motion for new trial upon the basis of the claim that a judgment is not sustained by sufficient evidence, the court must weigh the evidence and pass upon the credibility of the witnesses, not in the substantially unlimited sense that such weight and credibility are passed on originally by the jury but in the more restricted sense of whether it appears to the trial court that manifest injustice has been done and that the verdict is against the manifest weight of the evidence. Nay v. Knighton 1999 WL 744200 (Ohio App. 5 Dist.) citingRhodes, supra.'" {¶ 117} We have quoted those parts of the court's judgment as to his determination warranting the conditional remittitur or new trial as they clearly express not only the applicable law but his reasons supporting his decision. {¶ 118} We find no abuse of discretion in regard to these conclusions. {¶ 119} The Two Cross-Assignments of Error are rejected. {¶ 120} This cause is affirmed at Appellant's costs. Boggins, P.J. Hoffman, J. and Edwards, J. concurs in judgment only. For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas, Stark County, Ohio, is affirmed. Costs assessed to Appellant and Appellees equally.

2016-07-06 06:36:50.436101+00

DECISION {¶ 1} Relators, Sidney T. Lewis and Kimberly Austin filed this original action requesting a writ of procedendo against respondent, the Honorable Tommy Thompson, a judge of the Franklin County Court of Common Pleas contending that the trial court granting a third-party defendant a continuance violated their due process rights. Relators also filed a motion to show cause why they should not be held in contempt of court for proffering false statements in these proceedings. Respondent filed a motion to dismiss. {¶ 2} The action was referred to a magistrate, pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals, who rendered a decision including findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate determined that respondent's motion to dismiss should be granted but did not rule on the motion to show cause. No objections have been filed. {¶ 3} Regarding the motion to dismiss and after a review of the magistrate's decision and an independent review of the file, this court finds the magistrate has correctly determined the pertinent facts and applied the relevant law to those facts. Thus, this court adopts the magistrate's decision as its own, including the findings of fact and conclusions of law contained therein. {¶ 4} Regarding the motion to show cause, relators contend that respondent made a false claim in his motion to dismiss by referring to Old Republic Insurance Company as a party in the action. However, relators' amended complaint for a writ of procedendo refers to Old Republic Insurance Company as a "Third-Party Defendant." After a review of the computerized docket attached as an exhibit to relators' memo contra, it appears Old Republic Insurance Company was a third-party defendant as the result of a cross-claim filed against it. Thus, relators' motion has no merit and is denied. {¶ 5} In accordance with the magistrate's recommendation, we hereby grant respondent's motion to dismiss and we deny relators' motion to show cause. Motion to dismiss granted; motion to show cause denied. Brown and McGrath, JJ., concur. DESHLER, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution. APPENDIX A IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. : Sidney T. Lewis and Kimberly Austin, : : Relators, : : v. : No. 04AP-1235 : Tommy Thompson, Judge of the : (REGULAR CALENDAR) Court of Common Pleas, : : Respondent. : MAGISTRATE'S DECISION Rendered on June 14, 2005 Sidney T. Lewis, pro se. Kimberly Austin, pro se. Ron O'Brien, Prosecuting Attorney, and Patrick E. Sheeran, for respondent. IN PROCEDENDO ON RESPONDENT'S MOTION TO DISMISS {¶ 6} In this original action, relators Sidney T. Lewis and Kimberly Austin request that a writ of procedendo issue against respondent, the Honorable Tommy Thompson, a judge of the Franklin County Court of Common Pleas. Findings of Fact: {¶ 7} On November 16, 2004, relators commenced this original action against respondent. On November 22, 2004, relators filed an amended complaint against respondent. {¶ 8} According to the amended complaint, relators are the plaintiffs in a civil action filed in the Franklin County Court of Common Pleas. The civil action is assigned case number 03CV-474. {¶ 9} According to the amended complaint, on October 14, 2004, respondent "unlawfully granted the application of the Third-Party Defendant, Old Republic Surety Company, in that action to continue the matter before the inferior court because of the pendency of Old Republic Insurance Company before the Common Pleas Court of Franklin County, Ohio. [Sic.]" {¶ 10} According to the amended complaint, respondent "hadno jurisdiction to allow this continuance on October 14, 2004, but should have proceeded to Summary Judgment because this action involves a Surety Bond as a written contract or `SPECIALPROMISE' pursuant to the Statutory Mandates of O.R.C. §1335.05." (Emphasis sic.) {¶ 11} According to the amended complaint: Relator-Plaintiff Sidney Lewis has filed a motion requesting defendant Judge to set the matters for oral hearing on the Motion for Continuance and the Motion For Summary Judgment on October13, 2004, but he refuses, without explanation on October 14,2004 and to date. Wherefore, the Relators pray for the issuance of a writ of procedendo commanding the Honorable Judge Tommy Thompson to proceed to final judgment in the case before him involving Ohio Revised Code, Section § 1335.05 as a "Mandatory Statute" irrespective of the proceedings pending in the Tenth District Court of Appeals for Franklin County, Ohio, or show cause at a specified time and place why he has not done so. (Emphasis sic.) {¶ 12} On January 18, 2005, respondent moved to dismiss this action. In his memorandum in support, respondent explains that, in the civil action in common pleas court, he granted a brief continuance to permit a party an additional two weeks to file its memorandum contra to a motion for summary judgment. Respondent also states that an appeal to this court was filed to challenge respondent's granting of the continuance. {¶ 13} On January 24, 2005, relators filed a memorandum contra to respondent's motion to dismiss. In their memorandum contra, relators assert that respondent's grant of a continuance was an illegal act that violates the United States and Ohio Constitutions. Relators attach several exhibits to their memorandum contra. {¶ 14} Exhibit D attached to relators' memorandum contra presents the entry of respondent that is the subject of this original action. In the entry, respondent grants to third-party defendant, Old Republic Insurance Company, a "two week extension of time to respond to the motion of Sidney T. Lewis for partial summary judgment." Conclusions of Law: {¶ 15} It is the magistrate's decision that this court grant respondent's motion to dismiss on grounds that the amended complaint fails to state a claim upon which relief in procedendo can be granted. {¶ 16} A writ of procedendo is an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment in a case before it. State ex rel. Sherrills v.Cuyahoga Cty. Court of Common Pleas (1995), 72 Ohio St. 3d 461,462. The writ does not attempt to control the inferior court as to what the judgment should be. Id. {¶ 17} In order to be entitled to a writ of procedendo, a relator must establish a clear legal right to require the court to proceed, a clear legal duty on the part of the court to proceed, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Miley v. Parrott (1996),77 Ohio St. 3d 64, 65. A writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment. Id. An inferior court's refusal or failure to timely dispose of a pending action is the ill a writ of procedendo is designed to remedy. Id. {¶ 18} While inartfully drafted, it is clear from the amended complaint itself that relators have brought this action to challenge respondent's granting of a continuance in ruling on a summary judgment motion filed in the common pleas court. According to the amended complaint, the continuance at issue was granted by respondent on October 14, 2004. This original action was commenced by relators on November 16, 2004, less than five weeks later. {¶ 19} Moreover, while the amended complaint itself fails to specify the length or nature of the continuance, relators have submitted an exhibit to their memorandum contra indicating that the continuance at issue here is a two-week extension of time that respondent granted to a party to respond to a motion for summary judgment. {¶ 20} In order to dismiss a complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts warranting relief. O'Brienv. University Community Tenants Union (1975), 42 Ohio St. 2d 242. {¶ 21} Here, it is indeed beyond doubt that relators can prove no set of facts warranting relief in procedendo. O'Brien. {¶ 22} Accordingly, it is the magistrate's decision that this court grant respondent's motion to dismiss.

2016-07-06 06:36:50.461607+00

JOURNAL ENTRY AND OPINION Defendant-appellant Carl Adams appeals from the denial of his motion for a new trial. Appellant assigns the following error for review: THE LOWER COURT ERRED IN DENYING THE MOTION FOR A NEW TRIAL WITHOUT FIRST HOLDING AN EVIDENTIARY HEARING. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. In 1987, a jury convicted appellant of two counts of rape with specifications the victim was under the age of thirteen and that force was used. The trial court sentenced appellant to two life terms for the offenses. Appellant filed a motion for directed verdict and for a new trial, arguing there was insufficient evidence to sustain his conviction. The trial court denied both motions. Appellant appealed from his conviction and from the denial of his motion for a new trial. Appellant argued again that there was insufficient evidence to support his conviction and also that the verdict was against the manifest weight of the evidence. This court affirmed appellant's conviction in State v. Adams (Oct. 13, 1988), Cuyahoga App. No. 54467, unreported. On September 14, 1992, appellant filed a petition for post-conviction relief. Appellant attached an affidavit from Yvonne Cole, the victim's mother, to his petition. In the affidavit, Cole declared that her daughter was raped by Donald Mitchell and not appellant. The trial court granted the prosecution's motion to dismiss the petition. Appellant filed a second petition for post-conviction relief on June 30, 1995. Appellant raised a claim of ineffective assistance of counsel. On July 7, 1995, appellant filed yet another petition for post-conviction relief in which he essentially just restated the arguments presented in the petition filed a little over a week earlier. Appellant again attached an affidavit from Cole which was the same as that used to support the first petition. Appellant's own affidavit declared his innocence of the charged crimes. The trial court denied this petition. On November 19, 1998, appellant filed a motion for a new trial based upon newly discovered evidence. Appellant claimed that the trial judge improperly selected a juror for his trial. Appellant further disputed evidence of a rape was submitted at his trial, claiming the child's testimony was untruthful and not supported by medical evidence. Appellant stated the prosecutor improperly failed to disclose medical records and proceeded even though he knew the child was lying. In support of his motion, appellant attached some unidentified pages from a document discussing the child's testimony, the same affidavit from Cole claiming Mitchell committed the rape, and an affidavit from Essie Adams, appellant's mother, stating the child spent a night at her home in May of 1987. The next morning, the child supposedly claimed Essie Adams had done something of a sexual nature to her. Appellant proclaimed his innocence in an affidavit. The trial court denied appellant's motion for a new trial without holding a hearing. II. In his sole assignment of error, appellant contends the trial court abused its discretion by denying his motion for a new trial without first holding a hearing. Appellant argues the affidavits attached in support of his motion were sufficient for the trial court to at least hold a hearing on the matter. A Crim.R. 33(A)(6) motion for new trial due to newly discovered evidence must be filed within one-hundred twenty days after the verdict was rendered. If a defendant does not file a motion for a new trial within these limits, the defendant must show by clear and convincing proof that he or she was unavoidably prevented from filing the motion within the time limits permitted. Crim.R. 33(B). Crim.R. 33 allows a trial court to entertain a motion for a new trial. The allowance or denial of a motion for a new trial is within the competence and discretion of the trial judge. The trial court's decision will not be disturbed absent a showing of an abuse of discretion. State v. Hill (1992), 64 Ohio St. 3d 313, 333. This court also reviews a trial court's decision not to grant a hearing under the abuse of discretion standard as well. State v. Tomlinson (1997), 125 Ohio App. 3d 13. Appellant never explained why the evidence attached to his motion should be considered newly discovered. The affidavit from appellant's mother was the only affidavit not attached to previous motions or petitions filed by appellant. Appellant did not address the issue of when any of the evidence was discovered or why it could not have been discovered before or during his trial. Appellant had to show, by clear and convincing evidence, that he was unavoidably prevented from filing a timely motion for a new trial. Appellant did not even argue the point below or on appeal. Appellant's motion for a new trial was untimely. The trial court did not abuse its discretion by denying the motion without first holding a hearing. Appellant's assignment of error is overruled. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The Defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. _________________________ LEO M. SPELLACY, JUDGE ANN DYKE, ADM. J. and PATRICIA A. BLACKMON, J. CONCUR.

2016-07-06 06:36:50.733318+00

OPINION {¶ 1} Plaintiffs-Appellants, Gary Brubaker, Kevin Branham and James Feffer (hereinafter referred to jointly as "Appellants"), appeal a judgment of the Defiance County Court of Common Pleas, granting summary judgment to Defendant-Appellee, Ron Retcher. On appeal, Appellants assert that the trial court erred in granting summary judgment. Finding that the trial court properly determined that there was no agreement between the parties as to the division of winnings and that the winning ticket was outside of any possible pooling agreement, we affirm the judgment of the trial court. {¶ 2} Appellants and Retcher were all co-workers that had pooled their moneys together over the years to play various Ohio Lottery Games in order to increase their chances of winning. In May of 2005, Retcher and Branham met to discuss pooling moneys to play the Rolling Cash 5 Lottery for a period of two weeks. Appellants and Retcher were the proposed members. All of Retcher's discussions about the pool were with Branham, and Branham spoke with Brubaker and Feffer about the pool. {¶ 3} In their initial conversation about the pool, Retcher and Branham discussed that the pool would play the same numbers for the two week period. Additionally, Retcher originally proposed that if each of the Appellants agreed to contribute three dollars a day toward the pool, he would contribute five dollars a day. Retcher and Branham also agreed that, under the above terms, any winnings would be distributed equally. According to Branham, Retcher also stated that if the others only wanted to play two dollars a day that would be fine. However, Branham stated Retcher did not mention how the winnings would be split under an agreement for less than three dollars a day. Retcher did not recall discussing the others playing less than three dollars per day. {¶ 4} Branham was able to solicit Brubaker and Feffer to participate in the pool; however, each of the Appellants only agreed to contribute two dollars per day to the pool. Subsequently, Retcher received seventy-two dollars from Branham. At that time, Retcher decided he was only going to contribute two dollars per day, based upon the others contribution, and claims to have told Branham. Branham stated that Retcher never told him of his decision to contribute less than five dollars per day. {¶ 5} Subsequently on Monday, May 23, 2005, Retcher purchased two twenty-four dollar pool tickets that were valid for one week. The pool tickets contained eight plays per day for a six day period. These tickets were purchased using numbers that Branham and Feffer had picked as well as numbers that Retcher had picked for himself and Brubaker. These tickets did not win. {¶ 6} Later that same day, Retcher purchased an additional lottery ticket while he was on his way to visit his brother. He bought an additional one-day five dollar Rolling Cash 5 ticket with numbers completely different from the numbers that had been on the tickets purchased for the pool. Later that same evening, the drawing was held for the Rolling Cash 5, and one of the numbers on the one-day five dollar ticket bought by Retcher won approximately one hundred and one thousand dollars. Retcher claimed these winnings as his own. {¶ 7} The following Monday May 30, 2005, Retcher used the remaining forty-eight dollars to purchase the remaining pool tickets for the second week of the pooling period. Again, this ticket contained eight plays per day for a six day period. Retcher used the same numbers. These tickets did not win. {¶ 8} In June of 2005, Appellants collectively filed a complaint against Retcher. Appellants requested a judgment regarding the rights and duties of the parties toward each other with regards to the winnings; that the Ohio Lottery Commission be restrained from paying the lottery proceeds until the trial court decided the issue; and, that Retcher be restrained from disposing of or encumbering any of the lottery proceeds. Subsequently, a joint entry was filed by the parties dismissing the Ohio Lottery Commission from the case. {¶ 9} In August of 2005, Retcher filed a motion for summary judgment. In his motion for summary judgment, Retcher asserted that there was no agreement between the parties; that if there was an agreement, that agreement had been satisfied by the parties and the winning ticket was not part of that agreement; and, that if there was an agreement and Retcher had breached the agreement, Appellants were only entitled to expectation damages alone. Subsequently, Appellants filed their motion in opposition to Retcher's motion for summary judgment. {¶ 10} In November of 2005, the trial court granted Retcher's motion for summary judgment, finding that the issue before the trial court was whether there is a legally enforceable agreement between the parties. Upon review of the evidence, the trial court concluded that there was no actual agreement between the parties based upon the two dollar per day contribution. {¶ 11} It is from this judgment Appellants appeal, presenting the following assignment of error for our review. THE TRIAL COURT ERRORED IN GRANTING DEFENDANT APPELLEE'SMOTION FOR SUMMARY JUDGMENT. {¶ 12} In the sole assignment of error, Appellants assert that the trial court erred in granting Retcher's motion for summary judgment. Specifically, Appellants assert that viewing the evidence in a light most favorable to Appellants there is a genuine issue of material fact as to whether that there was a meeting of the minds between the parties as to how the winnings should be divided. Additionally, Appellants assert that even if there were no meetings of the mind as to how the winnings were to be divided, there is a genuine issue of material fact based upon the theories of implied or quasi contracts. {¶ 13} An appellate court reviews a summary judgment order de novo. Hillyer v. State Farm Mut. Auto. Ins. Co. (1999),131 Ohio App. 3d 172, 175. Accordingly, a reviewing court will not reverse an otherwise correct judgment merely because the lower court utilized different or erroneous reasons as the basis for its determination. Diamond Wine Spirits, Inc. v. DaytonHeidelberg Distr. Co., 148 Ohio App. 3d 596, 2002-Ohio-3932, at ¶25, citing State ex rel. Cassels v. Dayton City School Dist. Bd.Of Ed., 69 Ohio St. 3d 217, 222, 1994-Ohio-92. Summary judgment is appropriate when, looking at the evidence as a whole: (1) there is no genuine issue as to any material fact; (2) 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; and, therefore, (3) the moving party is entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. HarwickChemical Corp., 73 Ohio St. 3d 679, 686-687, 1995-Ohio-286. If any doubts exist, the issue must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St. 3d 356,358-59, 1992-Ohio-95. {¶ 14} The party moving for the summary judgment has the initial burden of producing some evidence which affirmatively demonstrates the lack of a genuine issue of material fact. Stateex rel. Burnes v. Athens City Clerk of Courts,83 Ohio St. 3d 523, 524, 1998-Ohio-3; see, also, Dresher v. Burt,75 Ohio St. 3d 280, 293, 1996-Ohio-107. The nonmoving party must then rebut with specific facts showing the existence of a genuine triable issue; they may not rest on the mere allegations or denials of their pleadings. Id. {¶ 15} In the case sub judice, Appellants assert that the trial court erred in finding that there was no agreement between the parties as to the division of the winnings. Upon review of the evidence, we agree with the trial court's determination that there was no agreement between the parties as to the divisions of any winnings. Specifically, as noted above, Retcher purportedly offered to contribute five dollars per day to Appellants' contributions of three dollars per day. While it is questionable as to whether Retcher's five dollar contribution extended to Appellants' contributing only two dollars per day, that issue is irrelevant. Essentially, Appellant, Branham, unequivocally stated during his deposition that he did not know what the division of the winnings would be if Appellants were only to contribute two dollars per day. Thus, regardless of Retcher's offer, the trial court correctly found that the parties failed to come to an agreement on a key contractual term as to the pooling agreement. {¶ 16} Furthermore, even if we were to find an agreement existed between the parties, we find the facts presented clearly show that the winning ticket bought by Retcher was outside of any possible pooling agreement. Considering the testimony given by Appellants, even if Retcher had abided by the original terms of the agreement, which included his contributing five dollars per day, there would have been a total of eleven plays per day. The eleven plays per day would be made up of each of Appellants' two dollars per day contribution, totaling six dollars, plus Retcher's five dollar per day contribution. However, here Retcher purchased a total of thirteen plays on the day in question; the eight plays for six days for the pool, and a separate single day five plays ticket. {¶ 17} As noted above, on Monday, May 23, 2005, Retcher purchased two twenty-four dollar pool tickets that were valid for one week. The pool tickets contained eight plays per day for a six day period. Later that same day, Retcher purchased an additional lottery ticket at a different location. He bought an additional one-day five dollar Rolling Cash 5 ticket, which contained five plays, with numbers completely different from the numbers that had been on the tickets purchased for the pool. It was this single day ticket that held the winning numbers. {¶ 18} Upon review of this evidence, we find that there is no genuine issue as to any material fact, that reasonable minds can come to but one conclusion, that conclusion is adverse to the party against whom the motion for summary judgment is made, and the moving party is entitled to judgment as a matter of law. Civ.R. 56(C); Horton, 73 Ohio St.3d at 686-687. Even when considering these facts in a light most favorable to Appellants, we simply cannot find the second ticket was part of any pooling agreement. Accordingly, the sole assignment of error is overruled. {¶ 19} Having found no error prejudicial to the appellants herein, in the particulars assigned and argued, we affirm the judgment of the trial court. Judgment affirmed. Bryant, P.J., and Cupp, J., concur.

2016-07-06 06:36:50.973984+00

OPINION {¶ 1} Appellant Deborah Conkle appeals the decision of the Mount Vernon Municipal Court that issued a temporary protection order against her after she was charged with domestic violence. The following facts give rise to this appeal. {¶ 2} On the night of February 1, 2003, appellant returned to her residence where she lived with her boyfriend, Daniel Woodford, and three children. Appellant had not been home all day and arrived home intoxicated. Unbeknownst to Mr. Woodford, earlier in the evening, appellant had been involved in a traffic accident and had left the scene of the accident. According to Mr. Woodford, appellant was argumentative and violent upon her return to the residence. Mr. Woodford decided that he and the three children would leave the residence for their own safety. While the children were packing their belongings, appellant allegedly struck Mr. Woodford, in the back, and pushed him. {¶ 3} During this dispute, troopers from the Ohio State Highway Patrol arrived, at appellant's residence, in response to the earlier accident. The troopers observed appellant push Mr. Woodford. One of the troopers called the Knox County Sheriff's Department in reference to a possible domestic violence altercation. In response to the call, Deputy Huffman arrived on the scene and conducted an investigation. Thereafter, the deputy arrested appellant for domestic violence and Mr. Woodford filed a motion for temporary protection order. {¶ 4} Appellant appeared in court on February 4, 2003, for a hearing on the motion. Mr. Woodford was not present at this hearing. The prosecutor read the report and the deputy's narrative into the record. The prosecutor also read the victim's report into the record, over appellant's objection. The trial court granted Mr. Woodford's motion for temporary protection order. {¶ 5} Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration: {¶ 6} "I. The court granted an order of protection pursuant to Ohio revised code 2919.25 by motion of the alleged victim, without the alleged victim attending the hearing on protective order, in violation of Ohio revised code 2919.26(C)(1). {¶ 7} "II. The court granted an order of protection pursuant to Ohio revised code 2919.25 after no evidence was properly admitted." I {¶ 8} In her First Assignment of Error, appellant claims the trial court erred when it granted the motion for temporary protection order because the victim, Mr. Woodford, failed to appear at the hearing as required by R.C. 2919.26(C)(1). We agree. {¶ 9} Appellant essentially argues, in this assignment of error, that because Mr. Woodford did not attend the hearing on the motion, as required by statute, the decision to grant the order of protection should be overturned. In support of this argument, appellant cites R.C.2919.26(C)(1), which provides, in pertinent part: {¶ 10} "(C)(1) As soon as possible after the filing of a motion that requests the issuance of a temporary protection order, but not later than twenty-four hours after the filing of the motion, the court shall conduct a hearing to determine whether to issue the order. The person who requested the order shall appear before the court and provide the court with the information that it requests concerning the basis of the motion. If the person who requested the order is unable to appear and if the court finds that the failure to appear is because of the person's hospitalization or medical condition resulting from the offense alleged in the complaint, another person who is able to provide the court with the information it requests may appear in lieu of the person who requested the order. * * *" {¶ 11} Appellant also cites to a decision rendered by the First District Court of Appeals in State v. Franklin (June 22, 2001), Hamilton App. No. C-000544. In Franklin, the court held that the defendant did not violate a temporary protection order because the order was invalid since the arresting officer, who had requested the temporary protection order, did not appear before the trial court for the required hearing, no other testimony was presented to the trial court, and the court did not conduct the required hearing. Id. at 7. Appellant argues, in the case sub judice, the victim did not appear for the hearing, as required by statute, and therefore, as in the Franklin case, the protection order is invalid. {¶ 12} The state responds by indicating the trial court relied upon Mr. Woodford's written statement that he was the victim of domestic violence and appellant had threatened the safety of his children. The trial court also relied upon the officer's narrative and report of the incident. The state maintains such evidence is not hearsay because the investigative report was used to provide information only and no determination was made, during the hearing, as to the truth of Mr. Woodford's statement. {¶ 13} Having reviewed the language of R.C. 2919.26(C)(1), we conclude Mr. Woodford was required to appear at the hearing on the motion for protection order. We reach this conclusion on the basis of the mandatory language which states that, "* * * [t]he person who requested the order shall appear before the court and provide the court with the information that it requests concerning the basis of the motion." In construing the language of the statutes in the Ohio Revised Code, the Ohio Supreme Court has consistently held that the term "shall" indicates a mandatory, as opposed to permissive or discretionary, obligation. See, e.g., Musisca v. Massillon Comm. Hosp., 69 Ohio St.3d 673, 676,1994-Ohio-451 and cases cited therein. {¶ 14} Thus, the obligation of the person who requested the protection order to appear at the hearing is mandatory unless, the person is unable to appear and the trial court finds that the failure to appear is because of the person's hospitalization or medical condition resulting from the offense alleged in the complaint. In that case, another person who is able to provide the court with the information it requests may appear in lieu of the person who requested the protection order. There is no evidence, in the record, that Mr. Woodford was unable to attend the hearing due to injuries he sustained from the offense alleged in the complaint. {¶ 15} Appellant's First Assignment of Error is sustained. {¶ 16} We will not address the merits of appellant's Second Assignment of Error as we find it moot based upon our disposition of appellant's First Assignment of Error. {¶ 17} For the foregoing reasons, the judgment of the Mount Vernon Municipal Court, Knox County, Ohio, is hereby reversed. By: Wise, J., Hoffman, P.J., and Farmer, J., concur. Topic: Presence of victim required at hearing for TPO.

2016-07-06 06:36:53.747298+00

Plaintiff-appellant Glynis Deadwyler appeals from the trial court's order which affirmed the defendant-appellee Ohio Unemployment Compensation Review Commission's1 denial of unemployment compensation benefits. From January 1, 1992, until July 12, 1996, the claimant, Ms. Deadwyler, was employed by the Village of Oakwood (Village) as a secretary. Ms. Deadwyler was terminated from her employment for misconduct which occurred after the Village council meeting on June 11, 1996, between herself and Councilperson, Josephine Jedinak. The Review Commission's hearing officer determined the facts as follows: After the council meeting was over, claimant came to the table where the council member was sitting. Claimant wanted to look over proclamations which had been issued. The council member was approached by claimant and her friend. They wanted to talk. The council member had felt antagonism during the council meeting and did not chose (sic) to talk at that time. Claimant insisted that the council member speak with her. The council member did not respond. Claimant uttered the "f" word toward the council member twice. The council member pointed her finger toward the claimant and cautioned the claimant not to use these words toward her. Claimant then slapped the council member on the face, causing the papers in her hand to fly in different directions. The hearing officer further found that "Claimant's demeanor at this hearing is aggressive and argumentative and supports a conclusion that she is capable of this type of action. The weight of the evidence supports the employer's position." The hearing officer concluded such action by the claimant was in complete disregard of the employer's interest. The hearing officer ultimately determined that the claimant was discharged with just cause in connection with work. The appellant set forth the following proposition which will be considered as her assignment of error: IT WAS UNLAWFUL, UNREASONABLE, OR AGAINST THE EVIDENCE FOR THE REVIEW COMMISSION TO DETERMINE THAT PLAINTIFF WAS TERMINATED FOR JUST CAUSE IN CONNECTION WITH WORK, THUS, PLAINTIFF'S INELIGIBILITY FOR UNEMPLOYMENT BENEFITS SHOULD BE REVERSED. The appellant argues that there was no deliberate violation of work rules; that there was no willful disregard of the employer's interest; that she was not terminated in connection with work; and that she was not terminated for just cause. An appellate court may reverse the Ohio Unemployment Compensation Review Commission's "just cause" determination only if it is unlawful, unreasonable, or against the manifest weight of the evidence. Tzangas, Plakas Mannos v. Ohio Bur. of Emp.Serv. (1995), 73 Ohio St. 3d 694, syllabus one. Appellate courts are not permitted to make factual findings or determine the credibility of witnesses, but have a duty to determine whether the review commission is supported by the evidence in the record.Irvine v. Unemp. Comp. Bd. of Review (1985), 19 Ohio St. 3d 15. The fact that reasonable minds might reach different conclusions is not a basis for reversal of the review commission's decision.Fredon Corp. v. Zelenak (1997), 124 Ohio App. 3d 103. In order to be eligible for unemployment compensation benefits in Ohio, a claimant must satisfy criteria established in R.C.4141.29(D)(2)(a). The statute mandates that no individual may be paid benefits for the duration of unemployment if the administrator finds that the employee quit work without just cause or has been discharged for just cause in connection with work. Just cause is the type of conduct that an ordinarily intelligent person would regard as a justifiable reason for discharging an employee. Irving, supra; Lombardo v. Ohio Bur. ofEmp. Serv. (1997), 119 Ohio App. 3d 217. This court has held that the critical issue is not whether an employee has technically violated some company rule. Kiikka v. Ohio Bur. of Emp. Serv. (1985), 21 Ohio App. 3d 168. Rather, an employee is considered to have been discharged for just cause when the employee, by his actions, demonstrated an unreasonable disregard for his employer's best interest. Id. at 169. The determination of whether just cause exists necessarily depends upon the unique factual considerations of the particular case. Tzangas, supra, citing to Irvine, supra. The Supreme Court in Tzangas, supra, stated clearly that just cause determinations in the unemployment compensation context must be consistent with the legislative purpose underlying the Unemployment Compensation Act. The court found that the 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. The Act does not exist to protect employees from themselves, but to protect them from economic forces over which they have no control. Id. at 697. Where an employer has been reasonable in finding fault on behalf of an employee, the employer may terminate the employee with just cause. Tzangas at 698. Fault on behalf of the employee remains an essential component of a just cause. Id. Thus, the question before this court in the case sub judice is whether or not the decision of the trial court was unlawful, unreasonable, or against the manifest weight of the evidence where the hearing officer found the employee's discharge to be with just cause based upon a factual determination that the claimant, an employee of the Village of Oakwood, struck a village councilperson on the face during off-work hours. A review of the record shows that the factual determination by the hearing officer is supported in the record by hearing transcript as a whole and by the specific testimony of Ms. Jedinak. Two related questions arise which require further analysis: 1) whether or not the appellant's conduct may be considered related to her work; and, 2) whether or not the appellant was discharged for just cause. As to the first question, the trial court in its opinion adroitly noted that the appellant is an employee of the Village and thus, a part of that local government organization. The appellant assaulted a Village Councilperson, Jedinak, while the councilperson was engaged in the course of official duties on behalf of the organization. The assault occurred after a council meeting, but before Ms. Jedinak left the city building and returned to private activity. Given the facts, the conduct which lead to the appellant's termination, while not occurring as a result of her secretarial work, was related to her work in that she interfered with the operation of the governmental organization. As to the second question, this court finds an ordinarily intelligent person employed by a city or village, with or without an employee handbook2, would understand that striking a councilperson on the face, during work hours or afterwards, would be just cause for termination of employment. Just as in inWintucky v. North Coast Cable Ltd. (Dec. 1, 1994), Cuyahoga App. No. 66643, unreported, the appellant's behavior reflected poorly on her employer and was an embarrassment to it. Such behavior constitutes a complete and willful disregard of the employer's interest. Id. The public physical assault of a superior within the organization, even though the person was, not a direct supervisor, presented just cause for termination3. The trial court did not err in upholding the determination of the Review Commission. The appellant's assignment of error is overruled. Judgment affirmed. It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. KENNETH A. ROCCO, P.J., and ANNE L. KILBANE, J., CONCUR. __________________________________ JAMES D. SWEENEY JUDGE 1 The Ohio Unemployment Compensation Board of Review has become the Ohio Unemployment Compensation Review Commission. 2 The appellant raised two procedural issues regarding the existence or non-existence of an employee handbook at the time of the assault. Both of these procedural issues are moot as this court determines that even without an employee handbook the result of the appeal would be the same. 3 The appellant has alleged that the Village terminated her employment in retaliation for filing a civil rights action. While a serious accusation, this court has found the termination to be with just cause based solely upon the appellant's conduct.

2022-09-09 23:54:31.821459+00

Dugan

¶ 1. DUGAN, J. Jeffery Thomas Wenzel appeals from that part of the circuit court's order which denied his motion for relief from judgment based on financial documents turned over to him by his former wife, Shirley Ann Rogahn Wenzel. Shirley also cross-appeals from that part of the circuit court's order which denied her motion for sanctions.1 f 2. On appeal, Jeffery contends that, in denying the motion for relief from judgment, the postjudgment court erroneously exercised its discretion and erred as a matter of law by creating new requirements for relief. We disagree and, therefore, affirm that portion of the order. ¶ 3. On cross-appeal, Shirley contends that, in denying the motion for sanctions, the postjudgment court applied an incorrect legal standard by applying the test applicable to fees and costs in a divorce action, rather than applying the test for sanctions for frivolousness. We agree and, therefore, reverse the order denying Shirley's sanctions motion and remand for further proceedings consistent with our directions. ¶ 4. The following procedural history and facts provide helpful background. The discussion includes additional relevant facts as needed. BACKGROUND ¶ 5. The parties had a long-standing relationship that began in 1987. The two began living together in 1989, built a home together in 1990, and resided in that home beginning in 1991. The parties were married on February 10, 2002. Throughout their relationship they maintained one joint checking account. Each of them also had a personal checking account. In April 2013 they separated. 1 6. Shirley filed for divorce on April 1, 2014. On the July 2, 2015 trial date, before any evidence was presented, the trial court summarized the posture of the case, explaining that although the parties had attempted to reach a stipulation and agreed on asset value, they were unable to agree on maintenance and property division. The parties agreed that the summary was accurate. The trial court reminded the parties that "the law in this State is very clear that assets acquired during the marriage and before the marriage are a part of the marital estate to be considered for division by the [c]ourt." It noted that there are specific exemptions, including an exemption for gifts, and that a party arguing for an exemption had the burden of proof. ¶ 7. During counsel's opening statements, Shirley stated she wanted a 50/50 split of assets. She noted that Jeffery claimed that certain funds had been gifted, but she had never received any supporting proof that "these assets were gifted in any way" and that she did not believe that he could meet his burden of proof. ¶ 8. Jeffery stated he wanted to exclude certain funds totaling over $100,000 from the property division asserting that they were nonmarital, claiming that they had been gifted by his parents, were always separate from other assets, and were never drawn on during the marriage.2 ¶ 9. Prior to taking any testimony, the trial court had the following discussion with counsel regarding Jeffery's claim: [Trial Court] [Shirley's attorney] says she's going to argue that all of the assets are in and should be divided. She says you've offered nothing to her to allow her to determine whether assets have been gifted or inherited and statutorily exempt. Why would we be having that type of an argument today, and why won't they have been provided with that information? [Jeffery's Attorney] I don't see anything - Judge, again, I came in right before the final pretrial, but I see nothing in the discovery that requested any admissions or anything in terms of discovery regarding if this was gifted or not. [Trial Court] Okay. But you've — [Jeffery’s Attorney] That's - [Trial Court] — you've got the burden, and why wouldn't you tell them that? [[Image here]] [Jeffery’s Attorney] In my - in my client's request to admit that was prepared by previous counsel, they asked specific questions specifically asking if they were gifted, and several of these assets, and the answer was denied due to lack of information. So the question was asked, Judge. It's not like this is some new issue. [Trial Court] Well, but that puts you on notice that they don't know and maybe you should tell them so that we don't have to have this discussion today. [Jeffery’s Attorney] Well — [Shirley's Attorney] Your Honor, if I could, my request for production of documents requested documentation substantiating that these were gifted. And what I got back was just statements with his name on from the account, nothing proving any gift. [Trial Court] What have you got other than his word, Counsel? [Jeffery’s Attorney] That's what we have, your Honor. [[Image here]] [Trial Court] Are they deceased? No? Your parents are not, but they're not witnesses today either; right? [Jeffery’s Attorney] No. [Trial Court] Okay. Well, you've got the burden. Shirley and Jeffery then testified. ¶ 10. After the noon break, the trial reconvened and the parties advised the trial court that they had reached a settlement. Counsel for Shirley explained the settlement agreement on the record, which was supplemented by Jeffery and his attorney. The trial court questioned the parties about the voluntariness, and their understanding and acceptance of the settlement agreement, which was a compromise. The trial court then approved the settlement agreement, placed its findings on the record, and granted the judgment of divorce. On July 21, 2015, the trial court issued its written findings of fact, conclusions of law, and judgment. ¶ 11. Jeffery filed a motion for relief from judgment with an affidavit of counsel.3 He asserted that, subsequent to the entry of the divorce judgment, Shirley had turned over financial records to him that during the pendency of the divorce action she had claimed not to possess, the records were in her sole possession, and such records would have resulted in a different property division if he had them at the time of trial. Shirley filed a motion to dismiss Jeffery's motion and for sanctions. ¶ 12. The postjudgment court had several hearings where the issues raised by the motions were discussed. Thereafter, the postjudgment court issued an oral ruling denying Jeffery's motion for relief from judgment and Shirley's motion for sanctions. The post-judgment court entered a brief written order denying the motions on July 15, 2016. f 13. This appeal and cross-appeal followed. DISCUSSION ¶ 14. We begin by addressing the issues raised by Jeffery. Then, we will address those raised by Shirley. The Postjudgment Court's Denial of Jeffery's Motion for Relief from Judgment was not an Erroneous Exercise of Discretion or Legal Error ¶ 15. Jeffery contends that, in denying his motion for relief from judgment pursuant to Wis. Stat. § 806.07(l)(b) and Wis. Stat. § 805.15(3), the postjudgment court erroneously exercised its discretion and erred as a matter of law because it added new requirements to obtain relief.4 Shirley maintains that the postjudgment court neither abused its discretion nor committed an error of law in denying the motion, and that the court should distinguish between newly discovered and newly obtained evidence. ¶ 16. A family court has authority to modify a property division under Wis. Stat. § 806.07. See Franke v. Franke, 2004 WI 8, ¶ 21, 268 Wis. 2d 360, 674 N.W.2d 832; Conrad v. Conrad, 92 Wis. 2d 407, 413, 284 N.W.2d 674 (1979) (holding family court has the power to reopen divorce judgment, including property division under § 806.07, even when based on a stipulation). We review the postjudgment court's decision whether to reopen a judgment "under the standard for discretionary decisions, considering only whether the court reasonably considered the facts of record under the proper legal standard." See Nelson v. Taff, 175 Wis. 2d 178, 187, 499 N.W.2d 685 (Ct. App. 1993). Stated somewhat differently, we will not reverse a postjudgment court's discretionary decision "if it examined the relevant facts, applied a proper standard of law, and reached a reasonable conclusion." See Lee v. GEICO Indem. Co., 2009 WI App 168, ¶ 16, 321 Wis. 2d 698, 776 N.W.2d 622. f 17. Wisconsin Stat. § 806.07(l)(b) provides that "[o]n motion and upon such terms as are just, the court. . . may relieve a party or legal representative from a judgment, order or stipulation for the following reasons [,]" including: "(b) [n]ewly-discovered evidence which entitles a party to a new trial under [Wis. Stat. §] 805.15(3)." Section 805.15(3) states as follows: [A] new trial shall be ordered on the grounds of newly-discovered evidence if the court finds that: (a) The evidence has come to the moving party's notice after trial; and (b) The moving party's failure to discover the evidence earlier did not arise from lack of diligence in seeking to discover it; and (c) The evidence is material and not cumulative; and (d) The new evidence would probably change the result. The factors are phrased in the conjunctive. A party has to establish all four factors. Kocinski v. Home Ins. Co., 147 Wis. 2d 728, 743, 433 N.W.2d 654 (Ct. App. 1988), modified on other grounds, 154 Wis. 2d 56, 452 N.W.2d 360 (1990). Jeffery was not Diligent in Seeking the Records ¶ 18. Here, the postjudgment court outlined the legal criteria applicable to newly discovered evidence. The postjudgment court stated that, based on its review of the record, it did not see anything in Jeffery's discovery requests putting Shirley on notice that the box full of account documents were in plain view, should have been disclosed, or turned over to Jeffery. In essence, the postjudgment court found that Jeffery was not diligent in seeking the documents. This finding is supported by Jeffery's June 2016 letter brief, wherein he conceded that "the documents found after the trial were not specifically requested by [Jeffery] in his [Requests for [production of [d]ocuments." ¶ 19. Even so, Jeffery argues that he discovered the evidence after trial and he tried to get the documents from Shirley. He also argues that his failure to discover the evidence earlier did not arise from lack of diligence. While this is Jeffery's position, the postjudgment court did not agree and its conclusions will not be disturbed because that court reasonably considered the facts in the record under the proper legal standard. See Nelson, 175 Wis. 2d at 187. The Evidence was Not Material ¶ 20. Jeffery also states that the postjudgment court did not specifically address whether the newly discovered evidence was material or cumulative. While the postjudgment court did not expressly state that the evidence was not material, it further reasoned that the problem with Jeffery's argument was that, even if the account statements were available at the time of trial and had been made available to Jeffery, "on the day of trial there was no one that Jeffery was prepared to call to demonstrate that any of these [monies] in these accounts was gifted to Jeffery by his parents." f 21. The postjudgment court stated that the issue of the account statements being found in a box in plain view was "nothing more than smoke and mirrors .... What [Jeffery] was lacking and unable to prove at the time of trial was that the money that was in those accounts was allegedly gifted to him by his parents." The postjudgment court emphasized "[i]t's not the amount of money in the accounts that was the issue at trial. It was Jeffery's ability to prove that the money in those accounts was in fact gifted to him by his parents and he was unable to do so on the day of trial. [The trial court] even called him out on that." We interpret the postjudgment court's decision as finding that the account records were not material because Jeffery's problem at trial was his inability to prove that the funds had been gifted, and the account records did not remedy that proof problem. See Brandt v. Brandt, 145 Wis. 2d 394, 408-09, 427 N.W.2d 126 (Ct. App. 1988) (establishing gifted property requires proof of (1) the gifted status of the property and (2) preservation of the character and identity of such property). ¶ 22. The postjudgment court's findings and conclusions are supported by the record. Such support is exemplified by the excerpt of the trial court's lengthy discussion regarding evidence of a gift in the background section of this opinion. The postjudgment court's findings and conclusions with respect to Jeffery's lack of diligence and the fact that the records were not material are the basis for this court to uphold the denial of Jeffery's motion to reopen under Wis. Stat. § 806.07(l)(b), since all four factors listed under Wis. Stat. § 805.15(3) must be satisfied. See Kocinski, 147 Wis. 2d at 743. The Postjudgment Court did not Create a New Burden ¶ 23. Jeffery further asserts that the postjudgment court created a new burden by requiring that he show that Shirley withheld evidence or did not respond to evidence requests in good faith, quoting the following statements: [t]he larger issue is,.. . what effect, if these had been turned over it would have had on the ultimate result of the trial. Because to [reopen] not only requires a showing of mistake, inadvertence or excusable neglect, but also demonstration that there is a meritorious claim or defense. [[Image here]] He had his opportunity at trial. He was not prepared to present his evidence. Nothing has changed. For that reason, I don't think this case defines this issue and the record before me doesn't establish the good cause needed under the motion to [reopen] statute to find any mistake, inadvertence, surprise, or [excusable] neglect." Assuming for the sake of argument that Jeffery is correct, such an error would be inconsequential since the failure to establish even one factor to establish "newly discovered evidence" provides the basis to uphold the denial of his motion. See Kocinski, 147 Wis. 2d at 743. Here, Jeffery failed to establish two factors: (1) diligence; and (2) materiality. f 24. Additionally, review of Jeffery's moving papers discloses that they may have engendered the very language that he states created a new burden. Jeffery states that he brought the motion for relief from judgment pursuant to Wis. Stat. § 806.07(l)(b) and Wis. Stat. § 805.15(3). However, the record discloses that, at best, Jeffery has over-simplified. Rather, Jeffery's motion and later papers varied with respect to the statutory provisions cited as a basis for relief. ¶ 25. Jeffery's motion cited Wis. Stat. § 806.07(1) without specifying any subpart, used the phrase "excusable neglect," and was not limited to invoking the newly discovered evidence provision.5 Jeffery later filed a supporting memorandum that cited § 806.07 and subsection (1), § 806.07(l)(b), and Wis. Stat. § 805.15(3). His subsequent letter brief adds a citation to § 806.07(l)(h), which affords recourse for "[a]ny other reasons justifying relief from the operation of the judgment," to the previously cited §§ 806.07(l)(b) and 805.15(3). The letter brief also states that to prevail on a motion for reconsideration, a party must present either newly discovered evidence or establish a manifest error of law or fact, citing Koepsell's Olde Popcorn Wagons, Inc. v. Koepsell's Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶ 44, 275 Wis. 2d 397, 685 N.W.2d 853. In short, Jeffery invoked multiple and varied statutory and legal standards. ¶ 26. Thus, Jeffery's contention that the post-judgment court created new requirements for relief also lacks reasonable support in the record. Given the lack of specificity in Jeffery's moving papers and the multiple grounds he invoked, the postjudgment court's decision is reasonably interpreted as attempting to touch on the alternative bases for relief from judgment arguably relied upon by Jeffery. Within the context of the postjudgment court's decision as a whole, we conclude the postjudgment court did not create a new burden, but instead, attempted to address the myriad of legal theories proffered by Jeffery. ¶ 27. In sum, we conclude that the postjudgment court's denial of Jeffery's motion for relief from judgment was not an erroneous exercise of discretion or legal error. The Postjudgment Court Failed to Apply the Proper Standard of Law to Shirley's Motion for Sanctions f 28. Shirley maintains that the postjudgment court applied the incorrect legal standard in denying her motion for sanctions because it applied the test applicable to requested contribution to attorney fees and costs in a divorce action, rather than the test applicable to the relief she sought under Wis. Stat. § 802.05(2) and (3). While Jeffery does not directly respond to this argument, he states that "the [postjudgment court] denied her motion for other reasons" and that this court should affirm the denial of sanctions because Shirley did not follow the statutory procedure for sanctions motions under § 802.05(2) and (3). ¶ 29. Wisconsin Stat. § 767.201 provides as follows: "Civil procedure generally governs. Except as otherwise provided in the statutes, [Wis. Stat.] chs. 801 to 847 govern procedure and practice in an action affecting the family." Chapters 801 to 847 constitute the Wisconsin Rules of Civil Procedure. Wisconsin Stat. § 802.05(3) of those Rules provides for sanctions based upon a violation of § 802.05(2). A party may seek such sanctions by motion. f 30. We find that Wis. Stat. ch. 767 does not prohibit civil sanctions for frivolous proceedings under Wis. Stat. § 802.05. Therefore, Shirley's motion for sanctions under § 802.05(2) and (3) is governed by civil procedure because ch. 767 does not preclude such motions. ¶ 31. As stated by Shirley and indirectly conceded by Jeffery, the postjudgment court applied the wrong legal standard to Shirley's motion. The caption and body of Shirley's motion sought sanctions and actual attorney's fees pursuant to Wis. Stat. § 802.05(2) and (3), and was accompanied by an affidavit of counsel that included the statement that "upon information and belief, [Jeffery's] motion [to reopen] is without any legal basis, and serves only to harass [Shirley] and cause her additional attorney fees." Subsequently, Shirley filed a supporting brief setting forth the text of § 802.05(1) through (3). f 32. This court will uphold a discretionary decision regarding frivolousness "if [the postjudgment court] examined the relevant facts, applied a proper standard of law and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." See Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 549, 597 N.W.2d 744 (1999). In addressing Shirley's motion, the postjudgment court relied on Holbrook v. Holbrook, 103 Wis. 2d 327, 343, 309 N.W.2d 343 (Ct. App. 1981), which requires several factual determinations be made before a court awards attorney fees in a divorce action.6 Here, we cannot sustain the postjudgment court's ruling because it failed to apply the proper standard of law, such as Jandrt, 221 Wis. 2d at 549-51, to analyze Shirley's sanctions motion. Therefore, we must reverse that part of the postjudgment court's order denying Shirley's motion for sanctions and remand for consideration of that motion under the correct legal standard. CONCLUSION ¶ 33. With respect to Jeffery's appeal, we conclude that the postjudgment court did not erroneously exercise its discretion or err in its interpretation of the law pertaining to Jeffery's motion for relief from judgment and, therefore, affirm that part of the postjudgment court's order. However, with respect to Shirley's cross-appeal, we conclude that the postjudgment court erred as a matter of law because it did not apply the legal standards applicable to motions for sanctions based on frivolousness. Therefore, we reverse and remand that part of the postjudgment court's order denying Shirley's motion for sanctions for further proceedings applying the proper legal standard. By the Court.—Order affirmed in part; reversed in part and cause remanded with directions. The Honorable Frederick C. Rosa presided over the divorce proceedings and entered the findings of fact, conclusions of law and judgment of divorce. The Honorable Paul R. Van Grunsven presided over the postjudgment proceedings. We refer to Judge Rosa as the trial court and Judge Van Grunsven as the postjudgment court. Jeffery's motion sought relief from the judgment on four grounds: (1) the absence from the record of the date by which Shirley was to refinance the real estate awarded in the divorce; (2) amendment of language in the findings of fact, conclusions of law and judgment of divorce entered by the trial court; (3) Shirley's testimony in a small claims action commenced after the entry of the divorce judgment; and (4) financial documents that Shirley turned over to Jeffery after the entry of judgment. The postjudgment court denied the motion in its entirety. However, Jeffery's appeal is limited to the ruling regarding the financial documents. Jeffery is deemed to have abandoned the other grounds raised by his motion. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998). Jeffery sought to exclude American Fund accounts, the Oak Associates Funds account, the Muhlencamp Fund account, and the Mairs & Power Funds account. For reasons that are not entirely clear from the record, Jeffery filed the motion and affidavit on December 31, 2015, and again on February 1, 2016. With the exception of the signing and filing dates, the documents filed on the two dates are virtually identical. As previously noted, Jeffery's motion presented four grounds for relief. However, Jeffery's appeal is limited to the determinations regarding the financial documents, and the other grounds are not before this court. All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted. Wisconsin Stat. § 806.07(1) provides as follows: On motion and upon such terms as are just, the court, .. ., may relieve a party or legal representative from a judgment, order or stipulation for the following reasons: (a) Mistake, inadvertence, surprise, or excusable neglect; (b) Newly-discovered evidence which entitles a party to a new trial under s. 806.15(3); (c) Fraud, misrepresentation, or other misconduct of an adverse party; (d) The judgment is void; (e) The judgment has been satisfied, released or discharged; (f) A prior judgment upon which the judgment is based has been reversed or otherwise vacated; (g) It is no longer equitable that the judgment should have prospective application; or (h) Any other reasons justifying relief from the operation of the judgment. Before awarding attorney fees in a divorce action a court is required to make the following factual determinations: (1) "the spouse receiving the award needs the contribution"; (2) "the spouse ordered to pay has the ability to do so"; and, (3) "the total fee is reasonable (this provides guidance in determining what is a reasonable contribution)." Holbrook v. Holbrook, 103 Wis. 2d 327, 343, 309 N.W.2d 343 (Ct. App. 1981).

2016-07-06 06:36:47.936969+00

Vickery

This cause comes into this court on appeal from the common pleas court of Cuyahoga county. A transcript of the evidence taken in the court below was introduced in this court, and we have heard it upon the same evidence considered in the court below. The only question involved in this lawsuit is whether the Higgins Manufacturing Company had a lien for some $1,100 on the real estate described in the petition, owned by the Dodds. It seems that the Dodds had made a contract with a general contractor by the name of Benjamin C. Hinig, who was a well-to-do and reputable contractor who had built many high-class houses in the vicinity where this house was built, and perhaps in other places in the city. The general contract was something *Page 88 in the neighborhood of $113,000 for the erection and completion of this house, and the only dealings that the owners had were with the general contractor, who sublet to the various trades different contracts. The contract with plaintiff, the Higgins Manufacturing Company, was for something over $1,100, and that included the weather stripping and screens on the house. The weather strips and screens were installed and completed some time before October, 1926, the parties moving into the house in October, the contract for the erection of the house having been let in 1925, and the architect and the owners testified in this case that the house had been completed when the owners moved in, that all the contract price had been paid to Hinig by the owners, and they had lived in the house some 16 or 18 months when, for some purpose, the Higgins Manufacturing Company went back to the place and worked two hours or more. It is important to bear this in mind because it is upon this work that the Higgins Manufacturing Company proposes to base their claim for a lien. That the Higgins Manufacturing Company did go back and do something about the weather stripping, and did fix the screens, may be true, and it is perhaps true that the owner asked them to come back. But does that show that this was a part of the original contract? Can any house that has been occupied for a period of eighteen months, a new house, escape the ravages of time in settling and so forth, so that it may not be necessary to readjust the weather stripping, the screens, doors, and window sashes? If the weather stripping was out of place, even though it had been perfect when it was put in and everything *Page 89 was completed, as the evidence shows it was in this case, is it incredible to think that the owner in such a case, knowing who had put in the weather stripping and screens, should call upon the same man to readjust them? Can it be possible that that could be called a part of the original contract? Now it must be remembered that there was no contractual relation between the Higgins Manufacturing Company and the owners of this property. They (Higgins Company) were simply subcontractors of the general contractor, Hinig, and Hinig had adjusted and settled with them and had given them a promissory note, and had renewed it many times, and then, unfortunately for the Higgins Manufacturing Company, and perhaps for others, Hinig failed and went into bankruptcy; and then eighteen months after this house had been accepted, and the architect had certified that it was completed and had been turned over to the owners, then, because they could not get their money from Hinig, the Higgins Manufacturing Company go back and do a couple of hours work, upon which they try to base a lien and compel the owner who has honestly and fairly paid the contractor to again pay the sum of $1,100, when the Higgins Company in the beginning apparently trusted their employer, the contractor, fully and entirely; and only after they could not recover from the contractor do they seek to do a little work on the property to keep their lien alive. If such a condition of things were permitted to exist, no matter how careful the owners of property might be, they could not escape paying twice or oftener for work done and material furnished on property. If this subcontractor could do that sort of thing, every *Page 90 other subcontractor could do it, and even though there had been no attention paid by the subcontractors, they could, by going back on some trivial pretext or another, if the door had sagged, or the weather stripping had got out of order, revive a lien they might have secured had they taken proper steps in the first instance. Now this is a court of equity, and, if any persons were ever guilty of laches, this record shows the Manufacturing Company was guilty of laches in this case, but the truth of it is that the company, as it had been dealing with Hinig for a long period of time, had regarded him as perfectly solvent, and one of those unfortunate circumstances occurred that has ruined many builders and contractors, such as a slump in the value and sales of property and consequent inability of people to buy and pay for real property and the building thereon. Now it is singular in this case that the Higgins Manufacturing Company had done like work on three or four other big jobs that Hinig had handled for other persons, and that at just about the same time that their man put in two hours work upon this place, he also went around to each of these various other places and did a couple of hours of work. It looks as though it was done for the purpose of recovering against the owners of the various properties something that the manufacturing company had failed to collect from the contractor with whom it had its contract. The lien law, though to protect subcontractors and furnishers of materials, must be strictly complied with, for the whole mechanics' lien law is in derogation of the contractual rights that the owners of property had under the common law. *Page 91 Under the common law there would be no claim whatever by the materialman against an owner of property who had made a contract with the principal contractor, and it is only by virtue of the statute that he can have any claim; and, being in derogation of common law, it must be strictly construed. We do not put much faith in the arguments of the plaintiff in this action about the affidavit that was filed in this case. We think it substantially complies with the law, but we do think that the evidence clearly shows that all this work, if it was done at all, was done as repair work and not as a part of the original contract. That work had been completed; it had been so stated by the parties and the general contractor. A bill had been rendered by plaintiff to the general contractor, who had given his notes to pay for it, and whatever work was done was simply repairing things which will get out of order around any new home, or old home either for that matter, and the wonder is if one can find any house that has been built for eighteen months and occupied where windows and doors or something do not need adjusting, and merely because the owner called in the party who put them up does not extend the life of the old contract and make it a part of the original contract. The work done was simply adjusting and repairing, and we think that is all the evidence shows in this case. We, therefore, think that the plaintiff was not entitled to maintain a lien against the property of the defendants, and a decree may be drawn for the defendants. Decree for defendants. LEVINE, J., concurs. SULLIVAN, J., not participating. *Page 92

2016-07-06 06:36:50.261621+00

Hornbeck

The action is in habeas corpus praying for the discharge of petitioner from the workhouse of the city of Dayton, Ohio, to which he was committed from the Municipal Court of Dayton. The petition recites that petitioner was unlawfully imprisoned and restrained by virtue of a "certain pretended instrument of writing of which a true copy is hereto attached, marked `A,'" etc. No such exhibit is attached to the petition but upon the averments of the answers and statements of defendant in his brief, which are binding upon him, it appears that petitioner was brought to trial upon a complaint charging that he "did unlawfully cause a disturbance in the city of Dayton, to wit: At Germantown street and Hawthorne street by disorderly behavior, contrary to Section 1036 of the General Ordinances of the city of *Page 216 Dayton, Ohio," and charging further that he had been four times previously convicted and sentenced to the workhouse of the city of Dayton for offenses, three of which were committed in the city of Dayton, setting out the numbers of the cases, the dates of the convictions and sentences and the offenses by name and, further, that "the said Joe Briggs having also been convicted and sentenced by the Municipal Court of Lima, Ohio, on a charge of entering an inhabited house on November 24, 1947. Contrary to Section 4131, Habitual Offender Act, G.C. of Ohio." The entry effectuating the sentence of the court was not on file at the time the petitioner was turned over to the defendant but was spread upon the record of the court nunc pro tunc as of the 26th of December, 1947, the date of the sentence. This entry sets out substantially the language of the charge, makes a finding that the defendant had entered a plea of guilty, as charged, and carries the sentence for a term of three years in the workhouse of the city of Dayton. It is the claim of the petitioner that he is held on a void commitment in that neither the charge to which he entered his plea nor the sentence authorized his detention because the charge did not state an offense as defined in Section 4131, General Code. The defendant does not meet this claim in his brief by argument or authority but asserts that on February 3, 1949, petitioner filed his petition in habeas corpus in the Court of Common Pleas of Montgomery County, which resulted in a denial of the writ and that no appeal was taken from that decision. If it is the purpose of defendant to raise the question of res judicata, it can not be done by merely stating in a brief what defendant understands the facts to be. Res judicata should be set up in a formal way by proper pleading *Page 217 and all the material elements of that defense should be stated. In support of his position defendant cites Ex parte Pharr,10 Ohio App. 395. That case holds that if a judgment in a criminal case is erroneous, but not absolutely void, it can not be collaterally attacked. We are also cited to a part of one sentence from Judge Crawford's decision denying the relief sought which, without more, manifestly is of no assistance to us. However, we have had access to Judge Crawford's opinion in the habeas corpus proceeding and find that it is grounded upon the proposition that there was no evidence whatever offered to support the petition. Manifestly, this is of no benefit whatever to the defendant because the court made no adjudication upon any facts. As a matter of fact, plaintiff would have been in the same situation in this court had not the defendant by answer and brief provided enough factual matter to afford the basis of an adjudication. The other cases cited by defendant go no further than the one which we have discussed. It is said in 20 Ohio Jurisprudence, 508: "The refusal of a court to issue a writ of habeas corpus is not a bar to the consideration of another application in another court, nor is the decision of a court or officer upon a habeas corpus proceeding, refusing to discharge a prisoner, a bar to the issuing, by another court or judge, of another writ, based upon the same facts." Citing In re Luetzler v. Perry, Sheriff, 18 C.C., 826; In re Mullaney, 8 N.P., 49, 10 O.D. (N.P.), 419. The determinative question here is well projected by the language of the Code, Sections 12161 and 12165, General Code. The former section provides that "A person unlawfully restrained of his liberty * * * may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment * * *." *Page 218 Section 12165, General Code, provides: "If it appears that the person alleged to be restrained of his liberty is in custody of an officer * * *, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to * * * render the judgment, or make the order, the writ shall not be allowed * * *." Did the municipal judge have jurisdiction to sentence the petitioner as an habitual offender? This requires consideration of the charge. Manifestly, the judgment can rise no higher than the offense charged and if no offense is charged no valid commitment to the workhouse could have been made. The section under which the prosecution was had is Section 4131, General Code, providing: "Every person who, after having been three times convicted, sentenced and imprisoned in any workhouse or workhouses for offenses committed in this state, whether in violation of law or ordinance, shall be convicted of a fourth misdemeanor, whether committed in violation of an ordinance of a municipality or law of the state, punishable by imprisonment in any workhouse within this state, shall, upon conviction for such offense be held and deemed to be an habitual offender and shall be imprisoned in a workhouse for a period of not less than one year nor more than three years * * *. The fact of former convictions shall be charged in the information or complaint and, if proved, shall be stated in the commitment. * * *" It will be noted that certain elements of the offense are that prior to the conviction of a fourth misdemeanor it shall appear that the offender has been three times convicted, sentenced and imprisoned in a workhouse. The affidavit charges the three convictions and sentences but is silent as to any imprisonment in a *Page 219 workhouse. Is this omission vital to the charge of a violation of Section 4131, General Code? In our judgment it is. As early as Blackburn v. State, 50 Ohio St. 428, 36 N.E. 18, the court had under consideration the habitual criminal act of May 4, 1885, 82 Ohio Laws, 237, and held (paragraph two of the syllabus): "To authorize a sentence of imprisonment for life under that statute, the indictment should allege that the defendant had been previously twice convicted, sentenced and imprisoned, in some penal institution for felonies, describing each separately." The act provided that: "Every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, * * * shall be convicted, sentenced and imprisoned in the Ohio penitentiary for felony hereafter committed, shall be deemed and taken to be an habitual criminal * * *." At page 437, Chief Justice Bradbury, the writer of the opinion, said: "The proof should cover every material averment of the indictment and the verdict establish every fact made necessary by the statute to the judgment pronounced by the court." The language of the act there under consideration is so similar to that of Section 4131, General Code, as to constitute the adjudication of much value. The present Habitual Criminal Act, Sections 13744-1 to 13744-3, General Code, does not include the language which was under consideration in the Blackburn case. It is recognized that criminal statutes must be strictly construed and especially is this true where the penalty prescribed is severe, as it is in the instant *Page 220 case. 24 Corpus Juris Secundum, 1144; 25 American Jurisprudence, 260. Lerch v. City of Sandusky, 23 Ohio App. 109, 155 N.E. 393, which also holds that there can be no valid conviction in a criminal case unless the affidavit charges an offense. Judge Williams, later of the Supreme Court, at page 112 of the opinion, quotes with approval from Hagar v. State, 35 Ohio St. 268: "In charging an offense in an indictment, it is not good practice to omit the words of the statute which define the crime. The safer course is to employ them; and, while this is not always indispensable to the validity of the indictment, it is clear that if they are omitted the defect will be fatal, unless the words used are the precise equivalent of the words of the act, or, at least, plainly and necessarily include them." It is not necessary to cite authority to establish that "convicted," "sentenced" and "imprisoned in any workhouse" all are words of different meaning and neither is the precise equivalent of the other, so that a charge omitting any one of the words or the phrase fails to state one of the material elements of the offense defined. See, also, Hamilton, Ex parte, v.Russell, 54 Ohio Law Abs., 57. In People v. Brown, 253 Mich. 537, 235 N.W. 245, 82 A.L.R., 341, there was a plea of guilty to a charge failing to state the material elements constituting the offense, and the court said that "the record fails to show a plea of guilty covering the elements of the offense." In State v. Parker, 150 Ohio St. 22,80 N.E.2d 490, the defendant was prosecuted under Section 13064, General Code, which made it an offense for one for his own profit to carry on a scheme of chance. The indictment failed to charge that the scheme of chance was promoted for defendant's own profit. The court held, notwithstanding the general averment that *Page 221 the acts were contrary to the form of statute in such cases made and provided, the indictment was demurrable and did not constitute an offense punishable by the laws of this state. Petitioner, by his plea of guilty, admitted culpability only for the elements set out in the formal complaint and as it did not include the charge that he had been imprisoned in a workhouse or workhouses for the offenses of which it was claimed he had been convicted and sentenced, he had not plead guilty to the offense sought to be charged, and no sentence could properly be pronounced committing him to the workhouse upon such plea. It is also urged that the complaint was void because it did not set out the prior specific offenses as charged. We do not believe this claim is of sufficient consequence to affect the jurisdiction of the trial court. It is asserted also that the nunc pro tunc entry is invalid in that it does not conform to certain requirements essential to such an entry. Though it may be conceded that the entry is not all that is to be desired, there is no doubt of the right of the court to make it nunc pro tunc, or that it carried a sentence of the court under the plea of guilty of the petitioner. The prayer of the petition will be granted and petitioner discharged. Petitioner discharged. MILLER, P.J., and WISEMAN, J., concur. *Page 222

2016-07-06 06:36:50.504257+00

Cox

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 378 This matter presents a timely appeal from a judgment rendered by the Mahoning County Common Pleas Court reversing the decision of appellant, Ohio Bureau of Employment Services Board of Review, denying appellees unemployment compensation benefits and ordering the board to remove appellees' disqualifications and direct the administrator to pay appellees' claims. There are over five thousand appellees, all of whom are employees of appellant, General Motors Corporation, and work at the assembly plant in either Lordstown, Ohio or Wentzville, Missouri. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (the "International UAW") represents General Motors Corporation ("GM") employees in both local and national collective bargaining agreements ("CBA") with GM. These agreements govern union-represented employees at each plant. Local agreements are negotiated between a particular GM plant and a UAW local and address specific plant issues. National agreements are made between GM and the International UAW and govern general terms and conditions of employment for all UAW members. *Page 379 As with the dual CBA structure, strikes may take two forms. First, the International UAW may call a strike of all UAW locals or selectively call strikes of certain UAW locals. Second, a UAW local may strike at a particular plant with the International UAW's approval. In 1996, UAW Local 696 ("Local 696") was operating under both a national CBA, effective November 15, 1993 to September 1996 (the "National Agreement"), and a local CBA made in March 1994 (the "Local Agreement") with Delphi Chassis Systems, in Dayton, Ohio ("Delphi"). Despite these agreements, local issues concerning subcontracting, general grievances, manpower, health and safety, and sourcing remained disputed. As GM's critical brake component facility, Delphi actively produces antilock braking systems ("ABS") for GM's automobiles. GM utilizes a "ball screw" mechanism on its ABS compared to the solenoid-based braking system ("SBS") used by other manufacturers such as Bosche. Although the ball screw mechanism was cost-effective and reliable in its early development stage, the SBS technologically surpassed it. This new technology concerned both Local 696 and GM. Unable to develop an SBS timely, union-represented employees at Delphi faced outsourcing, and, as a result job loss. Comparatively, GM feared that it would lose global market competitiveness without an SBS and contemplated ways to implement an SBS quickly so as to remain competitive with other auto manufacturers presently using the system. GM notified the International UAW that it intended to introduce Bosche's SBS, and that consequently, that use would require outsourcing. The National Agreement contains a provision known as Appendix L, which covers product sourcing at GM's assembly plants. Sourcing refers to both insourcing and outsourcing of GM products. With insourcing, GM begins to manufacture products previously produced by a non-GM supplier. In contrast, outsourcing is a procedure whereby GM obtains a product from a non-GM provider that GM previously produced in-house. Sourcing issues have created tension between the International UAW and GM, particularly regarding GM's contractual commitments under Appendix L. The provision states in part: "It is an objective of the Corporation to grow the business and to continue to rely upon its employees and facilities as the source of its products." Agreement between General Motors Corporation and the UAW, October 24, 1993 (Effective November 15, 1993). Disagreement arose between GM and the International UAW as to what "grow the business" meant. GM interpreted "grow the business" as cost-effectiveness coupled with competitiveness so as to attract new business, whereas the International UAW interpreted it to mean simply more jobs. Additionally, GM and the International UAW disagreed on the right to strike over sourcing, and after much *Page 380 debate, GM prevailed. The National Agreement provided that sourcing issues are subject to grievance and arbitration procedures and are not strikeable issues. Unable to resolve disputed local issues on health and safety, general grievances, subcontracting, manpower, and particularly, sourcing, GM and Local 696 remained at odds. On September 17, 1995, Local 696 successfully obtained authorization from the International UAW to strike at Delphi. On March 5, 1996, Local 696 initiated a work stoppage at Delphi. The strike ended on March 21, 1996, and union-represented employees resumed work on March 22, 1996. The Delphi strike affected not only Delphi but most of GM's North American operations. As a result of GM's functional integration system, all but three of GM's assembly plants were forced to close or severely curtail their operations. Functional integration has two important aspects, one involving product manufacture and the other concerning logistics and distribution of those products. GM utilizes specifically tooled parts and components in many of its automobiles and is the sole source supplier of these parts and components. If the supplier plant stops manufacturing its product, all of GM's production stops, as sole source products cannot be procured elsewhere. As with product manufacture, logistics and distribution have some disadvantages. Efficient distribution depends on GM's "just in time" inventory system. With "just in time" inventory, products are delivered to GM plants just in time for assembly, thus eliminating the costs associated with maintaining large inventories. Although cost effective, this system can cause an assembly plant that is dependent on sole-source products to experience an immediate product shortage if the supplier stops production. GM's functional integration system and the Delphi strike forced many GM assembly plants to cease operation temporarily, particularly the assembly plants in Lordstown, Ohio and Wentzville, Missouri. These plants depended on direct parts shipment from Delphi to operate. Without Delphi, they could not obtain the necessary brake components and had none inventoried to use until the strike ended. Ultimately, the lack of parts left appellees unemployed. Although the Delphi strike had an intense impact on other GM plants, the strike settlement did not. The settlement did not change the terms and conditions of employment in the National Agreement, nor did it alter the terms and conditions of employment set forth in the Local Agreement. The strike settlement added two hundred seventy-five employment positions at Delphi, which could benefit union members if reassigned to that plant. Furthermore, only Local 696 members received strike fund payments from the International UAW even though all UAW members involuntarily contributed to the fund and all UAW locals could use the fund, including Local 1112, which represented Lordstown. *Page 381 Appellees filed for unemployment benefits. The matter was referred to a staff hearing officer of the Ohio Bureau of Employment Services ("OBES"). A hearing was conducted on April 2 and 3 of 1996. Subsequently, on April 15, 26 and June 28, the hearing officer issued decisions, determining that union-represented employees at Delphi became unemployed due to a labor dispute other than a lockout. The hearing officer stressed that the resolution of issues raised during the Delphi strike wouldreasonably be expected to affect the resolution of the same or similar issues at Lordstown. The hearing officer found that appellees were therefore directly interested in the Delphi labor dispute, and consequently, were unemployed due to that labor dispute. Accordingly, the hearing officer held that appellees were not entitled to unemployment compensation. Lordstown and Wentzville claimants filed separate applications for appeal with the OBES board of review on May 3, 1996 and July 19, 1996, respectively. The Board of Review disallowed the applications for appeal, thereby affirming the hearing officer's decisions. Appellees appealed separately to the Mahoning County Common Pleas Court. At this level, the two cases were consolidated for administrative purposes. The lower court reversed the board's decision, finding that appellees were entitled to unemployment compensation benefits, and ordered the administrator to pay appellees' claims. The within appeal followed. At the outset, our standard of review on appeal must be discussed. R.C. 4141.28 (O) (1) sets forth the standard of review to be applied in unemployment compensation cases and states as follows: "If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise such court shall affirm the decision." The Ohio Unemployment Compensation Act, R.C. 4141.01 et seq., "does not create distinctions between the scope of review of common pleas courts and appellate courts." Tzangas, Plakas Mannos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St. 3d 694,696-697, 653 N.E.2d 1207, 1210. In reviewing the board's decision, an appellate court must apply the same standard of review as the lower court. Thus, an appellate court may reverse the board's decision only if it is unlawful, unreasonable, or against the manifest weight of the evidence. Id. at 697,653 N.E.2d at 1210-1211. The court shall not make factual findings or assess a witness's credibility. Id. at 696, 653 N.E.2d at 1210, quotingIrvine v. Unemp. Comp. Bd. of Review (1985), 19 Ohio St. 3d 15, 19 OBR 12, 482 N.E.2d 587. The court may only determine if the evidence supports the board's decision, and thus shall not conduct a de novo review. Tzangas at 696-697,653 N.E.2d at 1210-1211. Though deference is due the findings of an administrative body, an *Page 382 appellate court is not bound to accept improperly drawn inferences from the evidence. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St. 2d 108, 17 O.O.3d 65, 407 N.E.2d 1265. The sole assignment of error alleged by appellant OBES and the first assignment of error alleged by appellant GM are similar in nature, and therefore, will be discussed together. They are, respectively, as follows: "The lower court erred when it reversed the board's decision that the claimants were directly interested in the strike which caused their employment to lapse, thus disqualifying the claimants from receiving unemployment benefits." "The trial court erred in reversing the finding of the unemployment compensation board of review which determined that the claimants were `directly interested' in the labor dispute within the meaning of O.R.C. § 4141.28 (D) (1) (a) (i)." Appellants argue that the lower court applied an erroneous and illogical definition of "direct interest." Appellants argue that the International UAW and UAW locals have the same interest regarding outsourcing, noting that the International UAW Constitution (the "Constitution") implicitly provides that the interests of the International UAW and UAW locals are interwoven. The Constitution states: "All members of the Local Union are also members of this International Union and subject to the orders, rulings and decisions of this International Union and the properly constituted authorities of the same." Article 6, Section 14, Constitution of the International Union, United Automobile Aerospace and Agricultural Implement Workers of America, June, 1995. Appellants argue that the language of the Constitution suggests that International UAW decisions are also decisions of UAW locals. Appellants contend that, logically, the lower court could not find that the International UAW's interest on outsourcing is not of direct interest to appellees, all UAW members. Appellants stress that the creation of more jobs at Delphi increased transfer and relocation opportunities for all UAW members. Additionally, appellants note that negotiations over sourcing were conducted at a national level, and that the Delphi strike ended only after the highest ranking officials at GM and the International UAW met to discuss the sourcing issue. Jeffrey Smith, a GM employer with twenty-eight years experience in North American automotive operations labor relations, testified that "it is unprecedented that you'd have that level of the organization meeting over local issues." Appellants argue that this testimony evinces that outsourcing was of great interest to the International UAW and was not just a local issue. *Page 383 Appellants contend that the lower court erred in interpreting R.C. 4141.29 (D) (1) (a) to require GM to prove that appellees had a direct interest in the labor dispute when the statute required appellees to show that they were not directly interested in the labor dispute. Finally, appellants argue that the lower court interpreted the requalification provision of R.C. 4141.29 (D) (1) (a) (i) so as to completely negate the disqualification provision of R.C. 4141.29 (D) (1) (a). Appellants argue that if the focus on outsourcing was on the particular component part to be outsourced rather than on outsourcing generally, then no employees other than those manufacturing that component part could have a direct interest in the dispute. By contrast, appellees argue that the lower court interpreted the phrase "directly interested" in R.C. 4141.29 (D) (1) (a) (i) so as to give meaning to the word "directly." Appellees contend that considering the statutory language, the contextual setting, the policies underlying the law, and the interpretation other state courts have given to similar statutory language, the lower court logically defined the exception. Furthermore, appellees argue that states with similar statutes have found nonstrikers "directly interested" in a labor dispute only when their contractual rights have been directly changed as a result of the labor dispute. Appellees contend that to be "directly interested" in the Delphi labor dispute, a practice, custom or contractual obligation had to exist requiring GM to extend provisions of the Local Agreement to those CBAs governing appellees. Appellees argue that R.C. 4141.29 (D) (1) (a) required the lower court to inquire as to whether appellees were "directly interested" in the labor dispute, not as to whether the International UAW was "directly interested" in the dispute. The objectives of the Ohio Unemployment Compensation Act (the "Act") are to ameliorate the burdens on employees suffering from involuntary unemployment and to provide them with short-term financial relief. Baker v. Powhatan Mining Co. (1946), 146 Ohio St. 600,33 Ohio Op. 84, 67 N.E.2d 714. Baker stressed at 605,33 O.O. at 87, 67 N.E.2d at 717: "It was pursuant to the high purpose and praiseworthy design above stated that provision was made for the accumulation of a fund by means of contribution exacted from employers for the benefit of those who suffer the loss of employment, not through any fault or choice of their own, but because they become the unfortunate and unwilling victims of adverse business and industrial conditions." R.C. 4141.46 mandates that the Act be liberally construed to favor the persons benefited. The court in Adamski v. Ohio Bur. ofUnemp. Comp. (1959), 108 Ohio App. 198, 204, 9 O.O.2d 220, 223,161 N.E.2d 907, 913, elaborated: *Page 384 "By `liberal construction' is not meant that words shall be given an unnatural meaning, or that the meaning shall be enlarged or expanded to meet a particular state of facts. A liberal construction must still be a fair and reasonable one, in an effort always to ascertain the legislative intent." By contrast, exceptions restricting the Act's scope must be strictly construed. Armstrong v. Prophet Foods Co. (1972),31 Ohio Misc. 141, 60 O.O.2d 299, 287 N.E.2d 286. R.C. 4141.29 (D) (1) (a) (i) provides: "Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits under the following conditions: "(1) For any week with respect to which the administrator finds that: "(a) His unemployment was due to a labor dispute other than a lockout at any factory, establishment, or other premises located in this or any other state and owned or operated by the employer by which he is or was last employed; and for so long as his unemployment is due to such labor dispute. No individual shall be disqualified under this provision if either of the following applies: "(i) The individual's employment was with such employer at any factory, establishment, or premise located in this state, owned or operated by such employer, other than the factory, establishment, or premises at which the labor dispute exists, ifit is shown that the individual is not financing, participatingin, or directly interested in such labor dispute." (Emphasis added). A claimant must establish his or her entitlement to unemployment compensation benefits. Irvine, supra, 19 Ohio St. 3d 15,19 OBR 12, 482 N.E.2d 587. Under the statute, a claimant's entitlement to such benefits hinges on whether his or her unemployment was due to a labor dispute other than a lockout occurring at a facility in this or any other state owned or operated by the claimant's employer. If a labor dispute caused a claimant's unemployment, that claimant is not entitled to unemployment compensation benefits, unless it is shown that he or she was "not financing, participating in, or directly interested in such labor dispute." This requalification provision furthers the Act's objective by providing financial assistance to employees who are unemployed through "no fault of their own." As no Ohio court has construed the "directly interested" language of R.C. 4141.29 (D) (1) (a) (i), the interpretation of this language is an issue of first impression before this court. Courts in other states with statutes similar to R.C. 4141.29 (D) (1) (a) (i) have defined "directly interested." Although these cases are not uniform, the prevailing view is that a claimant must have something more that a general interest in a labor dispute. Brobston v. Emp. Sec. Comm. (1963), 94 Ariz. 371,385 P.2d 239. That is, the labor dispute must affect directly a *Page 385 claimant's specific contractual rights, usually, regarding wages, hours or working conditions. Id. In Martineau v. Dir. of Division of Empl. Sec. (1952),329 Mass. 44, 49, 106 N.E.2d 420, 424, the Massachusetts Supreme Court emphasized: "A person is `directly interested' in a dispute when his wages, hours, or conditions of work will be affected favorably oradversely by the outcome. It is of no consequence that the person is not a member of the union conducting the strike or that he may not be in sympathy with its purposes." (Emphasis added). In Gen. Motors Corp. v. Bowling (1981), 85 Ill. 2d 539,55 Ill. Dec. 836, 426 N.E.2d 1210, GM shop clerks were denied unemployment compensation after being laid off when GM production workers struck and caused a work shortage. Although employed at the same GM plants, different UAW locals represented the production workers and the shop clerks. The Illinois Supreme Court held that shop clerks were entitled to unemployment compensation benefits as they were not directly interested in the labor dispute. The court reasoned that customarily, certain parts of the national agreement would be included in the shop clerks' local agreement, and therefore, the shop clerks might anticipate that a strike settlement could alter their employment terms. Nonetheless, the court noted that the shop workers' interest in the strike was an indirect interest, at best. The court stressed, "All they had was a hope, not any assurance. A mere expectancy without any legal right, subject to GM's views on the fairness and convenience of adopting parts of another agreement, does not disqualify the shop clerks for unemployment benefits." Id. at 543, 426 N.E.2d, at 1212. In Pottorff v. Unemp. Comp. Bd. of Review (Pa.Commw. 1996),681 A.2d 244, the Unemployment Compensation Board of Review denied petitioner benefits when he became unemployed due to a labor dispute involving the International Brotherhood of Teamsters, a union of which he was not a member. The Commonwealth Court of Pennsylvania affirmed the board's decision, holding that petitioner was not entitled to benefits because he was directly interested in the labor dispute. The court defined a direct interest, stressing that "an employee is directly interested in a labor dispute if the wages and fringe benefits negotiated by the striking union cover all employees including the non-member claimants." Id. at 247, citing Kearney v. Pennsylvania Unemp.Comp. Bd. of Review (1985), 89 Pa. Commw. 404, 492 A.2d 790. The Michigan Supreme Court further defined the term "directly interested" in Burrell v. Ford Motor Co. (1971), 386 Mich. 486,492, 192 N.W.2d 207, 210. The court noted that a "reasonable expectation" that a labor dispute may affect an individual's wages, hours or working conditions "shall be deemed to exist, in the absence of substantial and preponderating evidence to the contrary: (I) if it is established that there is in the particular establishment or employing unit a *Page 386 practice or custom or contractual obligation to extend * * * changes in terms and conditions of employment which are substantially similar or related to some or all of the changes in terms and conditions of employment which are made for the workers among whom there exists the labor dispute which has caused the individual's total or partial unemployment; or (II) if it is established that one of the issues in or purposes of such labor dispute is to obtain a change in the terms and conditions of employment for members of the individual's grade or class of workers in the establishment in which the individual is or was last employed." Ultimately, the court held that claimants were not entitled to benefits based on reasoning irrelevant to the case sub judice. More important, however, are the court's findings that claimants were not directly interested in the labor dispute, because (1) the company had no practice, custom or contractual obligation to extend agreements made in one plant to another, and (2) the local labor dispute's purpose was not to change the working conditions of these claimants. In Brobston, 94 Ariz. at 378, 385 P.2d at 244, Justice Jennings, in dissent, set forth the purpose behind the "directly interested" provision, stating: "The purpose of the `directly interested' provision was to eliminate the possibility of the key man strike — a device consciously employed by a union to impede production by removing a handful of workmen from an integrated operation. Without this safeguard all nonstriking union members thrown out of work by the ensuing strike shutdown would be entitled to compensation benefits although their interest in the strike was as great as that of the few strikers. Compensation in such cases would be tantamount to payment of strike benefits by the state in violation of it hypothetical neutrality in labor disputes." Justice Jennings suggests that the "directly interested" provision be applied only to those workers whose wages, hours or working conditions will be automatically altered from the strike settlement compared to those workers whose wages, hours or working conditions may be altered or simply reviewed upon settlement. In addition to determining whether a labor dispute will affect a claimant's wages, hours, or working conditions, courts must look to the nature of the labor dispute to determine exactly what contractual right is at stake. For instance, a strike settlement may involve compromising the terms of a national or a local CBA, and consequently, will affect different individuals. With national strikes, often an international union will call a strike of all its locals, or it may selectively strike certain locals, implementing a strategy which will maximize economic pressure. When a national agreement is negotiated, all members of an international union are affected and thus have a direct interest in the dispute. Aaron v. Review Bd. of Indiana (Ind.App. 1981),416 N.E.2d 125. *Page 387 Conversely, local problems may cause a local union to strike at a certain plant. Strike negotiations over terms in a local CBA affect only those individuals governed by that local agreement, although other members of the international union may have a general interest in the strike's end. If the terms and conditions of the national agreement are not at issue and the disputed local agreement does not govern or will not affect a claimant specifically, that claimant has only an indirect interest in the local strike. Gen. Motors Corp. v. Review Bd. of Indiana (1970),146 Ind. App. 278, 255 N.E.2d 107. In Aaron, supra, 416 N.E.2d 125, GM and the International UAW negotiated on UAW demands for changes in the terms and conditions of employment provided by a national agreement covering all GM union-represented employees. No local issues were discussed. With negotiations at a standstill, the dispute erupted into a nationwide strike. The International UAW led over three hundred twenty thousand GM employees at more than one hundred thirty-eight U.S. plants to strike. Pursuant to a planned selective strike strategy, the International UAW struck at all GM automotive production plants but exempted plants that produced parts for GM's competitors. Expectedly, the strike caused a work shortage and significantly curtailed employment at the exempt plants. Employees at these plants applied for unemployment benefits. The Indiana Court of Appeals held that the nonstriking workers at the exempt plants were not entitled to unemployment benefits because their unemployment resulted from a national strike. The court emphasized: "[T]he so-called non-disputing workers at the exempt plants share in the benefits for which the strikers were militating. * * * To maintain that they were non-disputants merely by virtue of the geographic location of their work places is an arbitrary determination. The union elected to place the plants in question here on the exempt list. Its expressed tactical reason for so doing was to make it possible for exempted employees to serve the strike effort by producing parts for GM's competitors. "There is here a joint effort by all the parties to negotiate asingle master contract by which they are all bound and by which they all presumably benefit." (Emphasis added.). Id. at 130. The Aaron court distinguished Gen. Motors, supra,146 Ind. App. 278, 255 N.E.2d 107. There, strikes over local issues continued after GM and the International UAW reached a national agreement. Subsequently, some plants remained closed due to local strikes at other facilities. The court held that employees at the nonstriking plants were entitled to unemployment benefits. The court stressed the difference between a national agreement that altered the contractual rights of all union members and purely local agreements that affected the contractual rights of only those local union members. *Page 388 Finally, in determining whether a claimant is "directly interested" in a labor dispute, R.C. 4141.29(D)(1)(a)(i) directs the fact finder to focus on a claimant's direct interest in the labor dispute. The statute does mandate that the fact finder determine the international union's direct interest in the dispute. The Delphi strike was a local strike over local issues, including outsourcing, unquestionably a hotly debated topic, both locally and nationally. The International UAW's concerns over outsourcing emanated from its interest in membership retention, thus strengthening its highly political and economic position. Conversely, Local 696's interest in the strike encompassed the immediate and long-term effects the strike had on its members, particularly permanent job loss. Ultimately, Local 696 obtained authorization from the International UAW to strike at Delphi. The Delphi strike was not a national strike initiated by the International UAW, nor did the International UAW strike at Delphi as part of a national selective strike strategy. The Delphi strike was purely local. Thus, although the strike may have affected appellees indirectly, they were not "directly interested" in the strike. The strike would alter only the terms and conditions of the Local Agreement and would change neither the National Agreement nor the local CBAs governing appellees. The lower court did not err in reversing the board's decision that appellees were directly interested in the Delphi labor dispute. The board based its decision that appellees were directly interested in the strike on two conclusory statements, neither of which logically defines "directly interested" in the context of R.C. 4141.29(D)(1)(a)(i). First, the board found that "[t]he lack of parts from Delphi Chassis certainly affected their interest in employment as it resulted in their being sent home from work." Second, the board determined that "[t]he resolution of issues raised during the Delphi Chassis labor dispute, including the outsourcing issue, would reasonably be expected toaffect the resolution of the same or similar issues at LordstownAssembly under the national and local agreements about to be negotiated between General Motors and the UAW." (Emphasis added.) The board's first conclusion gives no effect to the word "direct" and therefore nullifies the "directly interested" provision of R.C. 4141.29(D)(1)(a)(i). One can safely assume that most unemployed workers have an interest in resuming work. However, the board's attempt to define "directly interested" with such a generalization is an effortless endeavor. Such a definition renders the phrase meaningless, as all those unemployed would be "directly interested" in the labor dispute that caused their unemployment, and no claimant would ever qualify for benefits. A basic rule of statutory construction mandates that clear and unambiguous words be given their plain meaning. Layman v. OhioDept. of Human Serv. (1997), 78 Ohio St. 3d 485, 678 N.E.2d 1217 If the board had construed the *Page 389 statute as written, it would have been compelled to interpret the phrase "directly interested" as the legislature intended. That is, the board would have defined an "interest" as modified by the word "direct." To more clearly understand the statute's intent, an examination of the words contained therein is necessary. The word "direct" means "operating by an immediate connection or relation, instead of operating through a medium." Black's Law Dictionary (5 Ed. 1990) 459. In contrast, "indirect" means "[c]ircuitous, not leading to aim or result by plainest course or method or obvious, means, roundabout, not resulting from an act or cause but more or less remotely connected with or growing out or it." Id. at 773. Furthermore, an "interest" is a "right, claim, title, or legal share in something; * * * a right to have the advantage accruing from anything." Id. at 812. Finally, to "affect" is "[t]o act upon; influence; change; enlarge or abridge." Id. at 57. A claimant who is "directly interested" in a labor dispute is one whose rights are immediately and proximately connected with the dispute. Conversely, a claimant who reasonably expects that his or her rights may be "affected" by a labor dispute is not "directly interested" in that labor dispute, for the labor dispute may influence or change the claimant's rights indirectly. Judge Riley and Justice Jennings eloquently illustrate our position. In Copen v. Hix (1947), 130 W. Va. 343, 360,43 S.E.2d 382, 390 (Riley, J., dissenting), Judge Riley defines "direct interest," stating: "The interest contemplated by the statute must be active, direct and concrete. It must be in furtherance of the dispute by participation or activity therein by claimants, and must be prompted by a desire to secure higher wages, better working conditions, or some other material interest in the success of the dispute." In Brobston, supra, Justice Jennings emphasizes: "Thus, by substituting `affected' for `directly interested' the majority equates direct interest with `mere' interest or even `indirect' interest, thereby effectively repealing all statutory exceptions to the labor dispute provision when working conditions are an issue." Brobston, supra, 94 Ariz. at 377, 385 P.2d at 243 (Jennings, J., dissenting). Thus, to be "directly interested" in a labor dispute, a claimant must have a stake in the labor dispute. The outcome of the labor dispute must proximately cause an alteration in a claimant's rights, regarding wages, hours or working conditions. A reasonable expectation that the dispute's outcome will "affect" these rights fails to adequately define a "direct interest" and renders, the statutory exception a nullity. Additionally, the board's interpretation of "directly interested" negates the Act's objective. R.C. 4141.46 mandates that the Act be liberally construed to *Page 390 favor those individuals unemployed through no fault of their own. Moreover, the Ohio legislature added the "directly interested" language in 1975 with an intent to clarify what constituted a disqualifying labor dispute. If workers unemployed due to a labor dispute could never qualify for benefits because by virtue of their unemployment they would be directly interested in such labor dispute, the Act itself would be meaningless. The board's second conclusion is as unsubstantiated as its first. A claimant's expectation that a strike settlement will affect a new CBA is at best an indirect interest. The Illinois Supreme Court's decision in Bowling, supra, 85 Ill. 2d 539,55 Ill. Dec. 836, 426 N.E.2d 1210, is persuasive, as is the Michigan Supreme Court's decision in Burrell, supra, 386 Mich. 486,192 N.W.2d 207. Although it was customary for parts of the national agreement to be included in the shop workers' local agreement, the Bowling court found that the shop workers had only an indirect interest in the national strike. The court emphasized that unemployed workers are not disqualified when they merely expect that the strike will alter their legal or contractual rights. Similarly, in this case, appellees had no assurance that the Delphi strike would alter their local CBA and, consequently change their rights. In accordance with the Bowling decision, appellees were not "directly interested" in a strike which may have altered their rights under either their local CBA or the National Agreement. In Burrell, supra, the court found that a claimant may be "directly interested" in a labor dispute upon a reasonable expectation that his or her wages, hours or working conditions could be affected but only if a "practice or custom or contractual obligation" to extend a settlement agreement among the striking workers to the nonstrikers existed, among other conditions. Absent those conditions, a reasonable expectation that the dispute may alter a claimant's rights is insufficient. Burrell is distinguishable from this case. Most important, the record fails to establish that a practice, custom, or contractual obligation existed at GM that extended terms of one agreement to another. Thomas Danzey III, labor relations supervisor at GM, testified that Parma's UAW local had an agreement that addressed sourcing issues and supposedly resolved existing disputes over the issue. Nonetheless, sourcing remained a serious issue at Local 696. Had GM a practice, custom, or contractual obligation to extend parts of one agreement to another, sourcing issues at Local 696 would have ended upon resolution of such issues in Parma or other locals with similar agreements. Apparently, local settlement agreements are separate agreements applicable only to the actual contracting parties. Moreover, Justice Jennings's position in Brobston, supra,94 Ariz. 371, 385 P.2d 239, suggests that appellees would not be "directly interested" in the Delphi *Page 391 strike for their wages, hours or working conditions were not altered automatically as a result of the strike settlement. Appellants' assertion that the strike settlement increased possible transfer and relocation opportunities for GM employees at other plants is but one example of an employment condition that the strike could alter but would not do so automatically. Furthermore, only Local 696 members received strike fund payments, and only Local 696 members shared in the monetary settlement over subcontracting. Appellants argue that the terms of the International UAW Constitution suggests that the interests of the International UAW are interests of all UAW members. This broad inference does not fit succinctly within the context of the "directly interested" provision. A UAW membership hardly equates to a direct interest in every labor dispute which involves the UAW. If this were so, all UAW members would be "directly interested" in every local labor dispute, regardless of the circumstances. The International UAW, as an entity, does have an interest in local labor disputes. However, that does not mean that UAW members in the aggregate necessarily have an interest in local labor disputes. More important, R.C. 4141.29(D)(1)(a)(i) states explicitly that theindividual must be "directly interested" in the labor dispute. The statute does not mandate a determination of the UAW's interests. Thus, appellants' reliance on the International UAW Constitution is misplaced and unsupportive of their argument. Unconvincingly, appellants contend that high level negotiations that ended the Delphi strike confirmed that the International UAW was "directly interested" in the strike and evinced that this was more than a local strike over local issues. As discussed above, the International UAW is interested in local labor disputes by virtue of its host position among the UAW locals. However, appellants fail to look at the nature of the Delphi dispute and concentrate on merely one issue. Gen. Motors, 146 Ind. App. 278, 255 N.E.2d 107, is persuasive. An Indiana. appellate court awarded benefits to nonstrikers after concluding that they were not "directly interested" in the local strikes which continued after a national agreement was reached. There, the court distinguished national and local disputes as well as the issues involved. The Delphi strike was not a strike over outsourcing alone but entailed other issues concerning health and safety, general grievances, manpower, and subcontracting. Outsourcing was the most apparent issue, however, due to its significant effect on Delphi employees. GM's plan to outsource brake components from Bosche would cripple Delphi and result in immediate and possibly permanent job loss for those employed there. Although outsourcing was a pertinent issue to Local 696, it was important to the International UAW also. GM's highly integrated structure suggests that the International UAW would be interested in the Delphi strike because of its effect *Page 392 on other locals and overall membership, which consequently could harm it economically. Nevertheless, the International UAW could not call a national strike over outsourcing. The National Agreement prohibited national strikes over outsourcing; whereas the Local Agreement did not. Furthermore, there was no evidence that the International UAW took a national strike vote over the outsourcing issue. Taken together, these agreements imply that the Delphi strike was a local strike, although the issue concerned both governing bodies. Appellants contend that because the International UAW could not strike over outsourcing, it masked a national strike behind the local strike at Delphi, knowing fully that striking at Delphi, the sole source brake supplier, would significantly halt GM's operations. Appellants fail to grasp that the Delphi strike was not over outsourcing generally, but concerned specifically the outsourcing of brake components. Outsourcing brakes would have a direct and long-term effect on Delphi employees who faced permanent job loss but would affect appellees only indirectly, as they faced temporary layoffs. Once GM began outsourcing brakes, it would supply appellees with the necessary brakes to resume assembly. Appellees' interest in the strike's end so that they could return to work did not make them "directly interested" in the labor dispute. Appellants argue that the lower court interpreted "directly interested" so as to negate the disqualification provision of R.C. 4141.29(D)(1)(a). Appellants are wrong. Giving precise meaning to the word "directly" intensifies not only the disqualification provision but the entire statute. Consistently, the lower court preserved the legislature's intent to liberally construe those provisions that favor claimants and to narrowly construe those provisions which do not. Had the lower court focused on outsourcing generally and not on the part outsourced, as appellants contend, every union member would be "directly interested" in every outsourcing issue which arose. Finally, appellants aver that the lower court required GM to prove that appellees were not "directly interested" in the labor dispute when the statute puts that burden on the claimant. Appellants' argument is unpersuasive. The lower court stated correctly that appellees had the burden of proving their entitlement to benefits and accordingly weighed all the evidence before determining that appellees were not "directly interested" in the Delphi strike. The lower court did not err in reversing the board's decision that appellees were "directly interested" in the labor dispute. The board's decision was unreasonable, unlawful, and against the manifest weight of the evidence. The Board's interpretation of R.C. 4141.29(D)(1)(a)(i) is unlawful, as it left meaningless the vaguely phrased "directly interested" provision and ignored the legislature's intent to liberally construe the statute. Furthermore, the board based its decision on two unreasonable and conclusory statements, neither of which is *Page 393 substantiated with either law or fact. This court is not bound to accept these improperly drawn inferences. Finally, the board's decision is against the manifest weight of the evidence, as the evidence establishes the inverse of what the board holds. The evidence suggests that the Delphi strike was a local strike over local issues, involving only Local 696 directly. Applying the persuasive decisions of other jurisdictions, this court finds that appellees were not "directly interested" in the Delphi strike. First, the strike did not affect appellees' wages, hours or working conditions, nor did GM have a practice, custom, or contractual obligation to extend terms of the Local Agreement to the agreements which governed appellees. Second, the strike was a local strike. Local 696 struck at Delphi upon authorization from the International UAW; the International UAW did not implement the strike and, therefore, appellees cannot be implicated in it automatically. Appellants' first assignment of error is without merit. It is more appropriate to address appellants' third assignment of error before its second. Appellants' third assignment of error alleges: "The trial court erred in finding that the claimants did not `finance' the labor dispute within the meaning of O.R.C. § 4141.29(D)(1)(a)(i). (Judgment Entry, February 18, 1997)." Initially, appellees argue that appellants should not be permitted to raise their third assignment of error on appeal because they failed to preserve it through cross-appeal. Appellees note that appellants had two opportunities prior to this appeal to cross-appeal the financing issue but raised the issue only after the lower court reversed the board's decision that appellees were "directly interested" in the. Delphi strike. Appellees contend that appellants' failure to raise this issue below has prevented proper review of the issue up to this level and, accordingly, the court should dismiss the issue. Alternatively, appellees urge this court to review the issue on its merits and affirm the board's decision that the payment of regular union dues does not constitute "financing" of a labor dispute within the context of R.C. 4141.29(D)(1)(a)(i). App. R. 3(C) states: "(1) Cross appeal required. A person who intends to defend a judgment or order against an appeal taken by an appellant and who also seeks to change the judgment or order or, in event the judgment or order may be reversed or modified, an interlocutory ruling merged into the judgment or order, shall file a notice of cross appeal within the time allowed by App. R. 4. "(2) Cross appeal not required. A person who intends to defend a judgment or order appealed by an appellant on a ground other than that relied on by the trial *Page 394 court but who does not seek to change the judgment or order is not required to file a notice of cross appeal." Appellees' argument that the "financing" issue was not properly reviewed below is unpersuasive. The hearing officer's decision disqualified appellees from receiving unemployment compensation benefits. In reaching this decision, the hearing officer considered whether appellees were participating in, financing, or directly interested in the labor dispute. However, the ultimate decision was that appellees were denied benefits. Appellants never sought to change this judgment until now; thus, they were not required to cross-appeal the issue below. This court shall review appellants' third assignment of error on the merits. Appellants argue that appellees' payment of union dues constituted "financing" of the labor dispute. Appellants contend that although no Ohio law exists on this issue, state courts with similar statutes have found that payment of union dues constitutes "financing" of a labor dispute. Furthermore, appellants note that those state statutes which explicitly prohibit construing the payment of union dues as "financing" of a labor dispute predated the December 1975 passage of R.C. 4141.29(D)(1)(a)(i). Appellants argue that the legislature's omission of this specific statutory restriction manifests its intention that the payment of union dues could constitute "financing" of a labor dispute. Ohio courts have yet to determine what constitutes "financing" of a labor dispute. Accordingly, this court will look to other state court decisions which have defined similar statutory language. In Bowling, supra, 85 Ill. 2d 539, 426 N.E.2d 1210, the Supreme Court of Illinois found that shop clerks who paid regular union dues, part of which went to the International UAW's strike fund and was used to support striking workers, were not "financing" the labor dispute. The court held that "the payment of money is not `financing' a labor dispute unless there is a meaningful connection between the payment and the dispute, such as a purpose to support the strike." Id. at 545,426 N.E.2d at 1213, citing Baker v. Gen. Motors Corp. (1980), 409 Mich. 639,297 N.W.2d 387. The court reasoned that the shop workers did not pay their regular union dues in order to aid the present strike. Instead, the court noted, the shop workers paid their union dues to insure monetary support in the event of their own labor dispute. The court emphasized that "[t]he strike fund is a sort of private insurance against unemployment due to strikes. One does not pay insurance premiums to finance other people's claims, but to provide for one's own need." Bowling at 545,426 N.E.2d at 1213. Section 29(8) of the Michigan Employment Security Act provides: *Page 395 "(ii) The payment of regular dues, in amounts and for purposes established before the inception of the labor dispute, shall not be construed as financing a labor dispute within the meaning of this subparagraph." In Baker, supra, the Michigan Supreme Court distinguished between regular union dues and emergency dues used to supplement the strike insurance fund. The court found that the term "regular" had been used "to exclude from possible treatment as financing those dues payments required uniformly of union members and collected on a continuing basis without fluctuations promed by the exigencies of a particular labor dispute or disputes." The exception for regular union dues thus did not encompass "unusual collections for the purpose of supporting a labor dispute."Baker, supra, 409 Mich. at 666, 297 N.W.2d at 398. On appeal, the United States Supreme Court noted that "[s]pecifically, we have no occasion to consider the circumstances, if any, in which individuals might be disqualified solely because they paid regular union dues required as a condition of their employment." Baker v. Gen. Motors Corp. (1986), 478 U.S. 621, 638, 106 S. Ct. 3129, 3138, 92 L. Ed. 2d 504,519. In Soricelli v. Bd. of Review, Div. of Emp. Sec., Dept. ofLabor Industry (1957), 46 N.J. Super. 299, 134 A.2d 723, the court found that a claimant who contributed $1 to a voluntary strike fund used to assist an affiliated local was "financing" a labor dispute. Following Bowling, supra, 85 Ill. 2d 539, 426 N.E.2d 1210, both the board and the lower court found that appellees' payment of regular union dues did not constitute "financing" of the Delphi labor dispute. This decision was not unreasonable, unlawful, or against the manifest weight of the evidence and should be affirmed. The board determined that no direct relationship existed between the dues paid and the strike, that appelleesestablished no special assessment or strike fund, and thatappellees neither collected goods nor money with which to assistthe strikers. The lower court noted that the International UAW manages and controls the strike fund and decides who will receive strike assistance and in what amount. Moreover, the lower court emphasized that the International UAW's decision to finance a strike should not be imputed to individual locals who oppose such financing but nevertheless are required to pay their dues to retain UAW membership. Our decision that the regular payment of union dues does not constitute "financing" of a labor dispute is consistent with the purpose of Ohio's Unemployment Compensation Act. The Act protects those claimants unemployed through no fault of their own. Such a broad interpretation would negate the Act's overall purpose and the specific purpose of R.C. 4141.29(D)(1)(a)(i). Any union member who paid regular union dues would be disqualified from receiving benefits, regardless of his or her opposition to the strike. *Page 396 Michigan law suggests that the payment of money other than regular union dues coupled with a meaningful connection to the strike constitutes the "financing" of a labor dispute. The record evinces that appellees' union dues were not increased and a separate collection was not established in anticipation of a strike. Darrell Bowling, administrator of strike benefits for the International Union Secretary Treasurer's office, testified that the UAW Constitution allowed members to directly finance a strike. Bowling testified as follows: "Q: Okay. Darrell is there another way that a local union can contribute directly to the strike insurance fund to support locals that have been on a long-term strike? "A: Say that again, Fred. "Q: Is there a way that locals can contribute to support the members who have been on strike for a long period? "A: Yes, yes, there is. "Q: And how is that done? "A: That money goes to the secretary treasurer's office in Detroit which is a separate fund and when the local needs the money then they'll call there and they'll give them the money. It's not in the strike insurance fund. It's separate. "Q: Okay. And do you know whether Local 1862 at Mosler had such an account? "A: No. "Q: Okay. Have you had experience where you distributed money from that account? "A: I never have. "Q: Do you know whether any local unions in Ohio contributed any money in the fashion you just discussed to local 696? "A: Not to my knowledge." Bowling's testimony confirms that union members can voluntarily and actively finance a strike from payments other than regular union dues. All money contributed to this separate fund is earmarked for strike assistance and held apart from the International UAW's strike insurance fund. In contrast, regular union dues are distributed as follows: thirty-eight percent to the local unions, thirty percent to the International UAW's strike insurance fund, and thirty-two percent to the International UAW's administrative fund. Union members must pay union dues to retain membership. They have no choice as to how the International UAW distributes dues incomes and thus passively contribute to the International UAW's strike fund. To find that all claimants who pay regular *Page 397 union dues are "financing" a labor dispute would leave R.C. 4141.29(D)(1)(a)(i) meaningless. Logic would suggest that when the legislature added this exception to the statute, it intended for it to have a precise meaning. That is, a claimant should be actively and directly "financing" a labor dispute before that claimant is disqualified from receiving benefits. Finally, appellant argues that the legislature intentionally excluded language from the statute indicating that payment of regular union dues does not constitute the "financing" of a labor dispute. Appellant further asserts that the absence of such language evidences the legislature's intent to treat the payment of regular union dues as "financing" a labor dispute. Appellant cites no authority supporting such an interpretation. A more reasonable explanation for the absence of such language is that the legislature intended to give courts more freedom to consider multiple factors than simply one dispositive situation. Appellants' third assignment of error is without merit. Appellants' second assignment of error alleges: "The trial court erred in reversing the decision of the unemployment compensation board of review because those decisions were not `unlawful, unreasonable, or against the manifest weight of the evidence' as required by O.R.C. § 4141.28(O)(1)." Appellants argue that the standard of review on appeal prohibits a reviewing a court from making findings of fact or substituting its judgment for that of the administrative agency. Appellants contend that the lower court ignored competent, credible evidence which supported the board's decision that appellees were "directly interested" in the labor dispute. Finally, appellants argue that the lower court improperly substituted its judgment for that of the board by making unsupported factual findings regarding appellees "direct interest" in the labor dispute. This court has addressed the above arguments in its review of appellants' first and third assignments of error. Additional discussion on these matters would be repetitive and is unnecessary. As noted above, the lower court did not err in reversing the board's decision, as that decision was unlawful, unreasonable, and against the manifest weight of the evidence. Appellants' second assignment of error is without merit. Appellants' fourth assignment of error alleges: "The trial court erred in concluding that claimants employed at the Lear Seating Plant are entitled to unemployment compensation benefits." *Page 398 Appellants argue that the UAW stipulated to a list of claimants employed at the Lordstown Assembly Plant, some of whom became employed at the Lear Seating plant. Appellants argue that the trial court erred in finding that the Lordstown and Wentzville claimants were not entitled to benefits, which suggests that similarly, employees at Lear Seating were not entitled to benefits also. Conversely, appellees argue that Lear Seating is a separate plaint which the Delphi strike affected only indirectly. Appellees emphasize that the Lear Seating facility resembles more closely other GM component manufacturers whose employees were awarded benefits, and therefore, employees at Lear Seating should receive benefits even if this court reverses the lower court's decision. The lower court held that whether Lear Seating is a separate plant whose employees were entitled to benefits is a factual issue which the board should resolve on remand. Nonetheless, the lower court correctly found a remand to be pointless based on its decision to reverse the board's conclusion and award appellees unemployment benefits. Appellants' fourth assignment of error is without merit. The judgment of the lower court is affirmed. Judgment affirmed. VUKOVICH and WAITE, JJ., concur.

2016-07-06 06:36:50.607492+00

Day

On plaintiffs' petition for declaratory judgment, the trial court found for the defendant, dismissed the petition and entered judgment for the defendant. From this action the plaintiffs appealed, assigning two errors: "1. The trial court erred by omitting from its findings of fact that the contract of February 27, 1960, imposed upon the seller the obligation to convey said lots fully improved and that the purchase price specifically included the entire cost of the installation of paving, grading, engineering costs and the costs of the installations of the utilities. "2. The trial court erred in finding as a matter of law that the contract of purchase was merged into the deed." The record, consisting of the original papers, including the admissions in the pleadings and an oral stipulation reduced to writing and filed with the papers in the case, is sufficient without a bill of exceptions to exemplify facts upon which the claimed errors are based. See, Bailey v. Bushnell (Cuyahoga County App., 1962), 89 Ohio Law. Abs. 449, 450. That record includes the findings of fact of the court below and: (a) The relevant contract clauses from the contract (and its supplement) to purchase and sell certain lots in original Bedford Township. (b) The relevant sections from the escrow agreement prepared by the seller's counsel and followed by the parties in consummating the transfer of the properties. (c) The clauses of the deed, executed by the seller, and delivered by it to the buyers and by them accepted and recorded, relevant to the issue of the merger in the deed of contractual agreements made by the seller in the original sales contract relating to the inclusion of certain described improvements in the purchase price of the parcels in question, including designated sublots fronting on Columbus Road. *Page 29 (d) The fact that the city of Bedford Heights, Ohio, made special assessments against the buyers to cover the cost of the improvements described in (c). The deed transferring title did not reserve the "agreement" and "understanding" of the sales contract. The contract was later supplemented without any change of the terms related to the issue here. The crucial terms for the matter on trial were: "4. The seller hereby agrees that the purchase price of $4,700.00 for each lot includes all costs of engineering, paving, grading, sanitary sewer installations, a storm sewer installation and water line installation to each and every lot being sold therein together with the connections for said sanitary and storm sewer and water line to the property line. And all of the above enumerated installations shall meet with the construction requirements of the village of Bedford Heights, Ohio. In addition thereto, the seller herein undertakes to obtain all acceptances and acceptance certificate or approval from the village of Bedford Heights, Ohio, for maintenance of the above installations from the village of Bedford Heights, Ohio, for the benefit of the buyer herein. "5. The seller hereby agrees that as part of the consideration for each lot herein that the seller will rough grade with clean fill dirt each and every lot within the approximate building grade established for each and every home by the engineer of the village of Bedford Heights, Ohio, or the city so that buyer herein shall not be required to move any mass amount of soil. Seller also agrees to clear each lot of all trees or shrubs from such areas as are necessary for the installation of sewer line, building area and driveway. Rough grading shall be commenced within thirty (30) days of the date of request of the buyer herein to rough grade each lot and shall be completed thereafter as soon as possible or practicable. It is understood that the seller herein shall not be held responsible for any delay caused by weather conditions, strikes, or other conditions beyond the control of the seller herein. "6. The seller hereby agrees to deliver title to all the lots being sold herein to the buyer by a good and sufficient *Page 30 warranty deed conveying good and marketable title to said lots to the buyer herein, free and clear of any and all liens and encumbrances except restrictions of record, easements, reservations and conditions of record, zoning ordinances, if any and taxes and assessments both general and special for the last half of 1959 and thereafter. "All taxes and assessments shall be pro-rated as of date of transfer upon the basis of the last available tax duplicate. All respreads, if any, to be paid by seller." "9. It is specifically understood that the cost to buyer of the lots being sold herein includes the entire cost for the installation of the paving, grading, engineering costs and the cost of the installation of the utilities hereinabove specified which are to be a part of the lots conveyed herein." In relevant part the escrow agreement provided: "4. You are to pro-rate taxes and assessments on the within lots to the date of filing the mortgage and you are to charge the seller with the same and credit the buyers with the same. You are to use the last available tax duplicate or bill in determining said tax prorations. In the event there are any respreads upon these lots, then they are to be charged and paid for by the seller." The parties both assert and concede in the pleadings that the sales contract imposed upon the seller the obligation to convey lots, the consideration for each of which included "all costs of engineering, paving, grading, sanitary sewer installations, a storm sewer installation and water line installation" and the "entire cost for the installation of the paving, grading, engineering costs and the cost of the installation of the utilities." With the evidence in the agreed posture the trial court omitted this fact from its findings. It is obvious that there is no warrant in law for the omission of facts which are conceded and material. To support the legal conclusion of the trial court, the appellee urges that the doctrine of merger melded the contract commitments into the title deed when the latter was accepted without reservation and without including those contractual terms which appellants claim entitle *Page 31 them to prevail. As authority for its contention the appellee relies upon Dependabilt Homes, Inc., v. Grant Wayne Co. (1959),169 Ohio St. 224, and Fuller v. Drenberg (1965), 3 Ohio St. 2d 109. Dependabilt Homes, Inc., is distinguishable on the ground that the matters merged in the deed in the transaction in that case were contingencies. The Fuller court, treating the issue before it solely as a pleading question, sustained a demurrer to all of three alternate causes of action — to the first on the ground that the doctrine of merger wiped out a contract contingency,1 cf.Dependabilt Homes, Inc., v. Grant Wayne Co., supra, and on the further ground that the presence of a sewer pipeline covering the statutory equivalent of a natural watercourse could not be deemed an incumbrance within the covenants of the deed. The demurrer to the second cause of action was sustained on the ground that a theory of mutual mistake of fact could not be based on ignorance of the fact. The third alternative proceeded on the theory of fraud. The court in Fuller found this third cause of action inconsistent with the second in its theoretical foundation. This inconsistency made the third claim vulnerable to demurrer, but the court specifically said: "It should not be implied that a good cause of action on the theory of fraud could not have been alleged by the plaintiffs under the facts and circumstances of this case. * * *" (page 114 of 3 Ohio St. 2d.) In the instant case it is clear that there was no merging contingency involved. Rather, there was a representation in the contract of sale in the form of an "agreement" and "understanding" that the purchase price "for each lot" included all costs for the described items. Thus the facts here bring this case within merger exceptions announced in Rhenish v. Deunk (Cuyahoga County, 1963), 7 Ohio App. 2d 225, and Zander v. Blumenthal (Cuyahoga County, 1964),1 Ohio App. 2d 244. In the Rhenish case, this court said that a sales contract *Page 32 provision for the payment of a special assessment against real property was not obliterated by merger because the provision: "* * * created no * * * contingent liability. It was collateral in character. The obligation to pay the assessed paving costs was as definite and certain as the obligation to pay the purchase or sales price. * * *" (p. 231) Six months later, in Zander, this court considered, among other contentions, whether a provision in a contract of sale for a "three-family frame dwelling" merged in the deed conveying a "two-family" to block an action for damages on the contract. Concluding that the coalescence did not take place, the court held: "We also determine that the doctrine of merger does not obtain in the instant case. Where the acceptance of a deed isinduced by false representations, or by representations that in the exercise of reasonable diligence one should know to be false, the representations and the deed are distinct and the representations are not merged in the deed." (p. 249) (Emphasis supplied.) Cf. also Fries v. Gannon (Hamilton County, 1918),9 Ohio App. 387. The controlling relevance of the decisions in Rhenish andZander to the facts here could hardly be more obvious.2 Accordingly, both assignments of error are well taken. The judgment below is reversed and the cause is remanded to the trial court with instructions to enter judgment for the plaintiffs absolving them from liability for the payment of the special assessment in issue and allowing them their costs, including the cost on this appeal. Judgment reversed. WHITE and WASSERMAN, JJ., concur. 1 I. e., issuance of a building permit by the city of Willowick. The permit issued but was revoked on discovery that the city's sewer pipeline traversed the property about three feet underground. 2 It is noted that implicit in the rationale of theRhenish case on the specific point of merger is the suggestion that the doctrine of merger will not cure a failure of consideration. Cf. 38 A. L. R. 2d 1310, Section 15, at 1334. *Page 33

2016-07-06 06:36:50.770824+00

Whiteside

Defendant, Erie Insurance Company ("Erie"), appeals from a judgment of the Franklin County Court of Common Pleas and raises two assignments of error, as follows: "I. The trial court erred in finding that the two-year limitation in which to initiate an underinsured motorist claim contained in the policy issued by Erie Insurance Company to Wanda and Earl Kuhner is ambiguous, and determining that plaintiffs-appellees are entitled to recover underinsured motorist benefits. "II. The trial court erred in finding that plaintiffs-appellees were entitled to recover underinsured motorist benefits, as Earl and Wanda Kuhner failed to exhaust the tortfeasors' insurance policies as a matter of law." *Page 694 Plaintiffs, Wanda and Earl Kuhner, have also appealed from the judgment of the Franklin County Court of Common Pleas and raise two assignments of error, as follows: "1. The trial court erred in finding that the underinsured motorist benefits which plaintiffs-appellees were entitled to recover were subject to a set-off of $75,000.00." "2. The trial court erred in finding that any set-off which defendant-appellant is entitled should not be reduced by the reasonable costs of litigation." Plaintiffs brought this action in the trial court seeking a declaratory judgment with respect to the underinsured motorist coverage of a policy of insurance issued to them by defendant, Erie Insurance Company. Defendant filed a counterclaim seeking a declaratory judgment that plaintiffs were not entitled to underinsured motorist coverage, including a declaration that plaintiffs had failed to exhaust the liability limits of the tortfeasor's insurance policies. The policy contained an uninsured/underinsured motorist coverage provision in the amount of $100,000 per person and $300,000 per accident. The tortfeasor who caused the accident maintained insurance with a $50,000 liability-coverage limit. Plaintiff Wanda Kuhner's injuries caused her condition to deteriorate over a period of time, with continuing medical expenses which totalled less than $1,500 by the end of 1987 but had grown to more than $7,500 by the end of 1990. Her condition continued to deteriorate, and she was diagnosed in 1991 as having a recurrent post-traumatic stress disorder that rendered her incapable of regular employment. Accordingly, on December 11, 1991, plaintiffs sought the consent of Erie Insurance Company to accept $48,500 offered by the tortfeasors' insurers in settlement of that claim but preserving the underinsured claim with defendant insurer. Defendant responded by a letter dated December 13, 1991, including the statement that: "We regret that we can neither give you permission nor deny permission to accept the settlement offer." In the next paragraph, Erie asserted that the claim was barred by a provision of the policy requiring legal actions to recover under underinsured motorist coverage to be commenced within two years from the date of accident and further stated: "This loss occurred in 1987 and this is the first notification that there was a potential for underinsured motorists claim." As a result of this letter, plaintiffs accepted the tortfeasors' offers and settled. However, plaintiffs' action sought recovery against two tortfeasors. The $48,500 accepted in settlement of the claims included $33,500 from the insurer of the driver of the other vehicle directly involved in the accident and $15,000 from the insurer of a person who, although not directly involved in the accident, allegedly caused the accident. Such person had a policy limit of $25,000 liability coverage, making the total liability limits of the two policies of the alleged *Page 695 tortfeasors $75,000. Thus, defendant Erie asserted two bases for denying any available coverage: (1) failure of plaintiffs to initiate an action against Erie within two years from the date of the accident; and (2) failure of plaintiffs to exhaust the limits of the liability policies issued to the two tortfeasors named defendants in the underlying suit. The trial court found for plaintiffs upon these issues. Since the language of the Erie policy is ambiguous, the trial court construed it in favor of plaintiffs and concluded that the two-year limitation is a time in which an action must be commenced against the tortfeasor, rather than against the insurance company, citing Heil v. United Ohio Ins. Co. (1990),66 Ohio App. 3d 307, 584 N.E.2d 19. The trial court similarly rejected Erie's contention that arbitration should have commenced within two years from the date of the accident, since any right of plaintiffs to recover under the underinsured motorist provision did not accrue until Erie denied coverage on December 13, 1991. The trial court also found that there had been sufficient exhaustion of the underlying policies, but included a $75,000 setoff against the underinsured motorist benefits due plaintiffs from Erie, less reasonable cost of litigation. The uninsured/underinsured motorist coverage of the policy provides in part: "We will pay damages that the law entitles you or your legal representative to recover from the driver or owner of an uninsured motor vehicle. * * * "We will not be bound by a judgment against the uninsured or the underinsured on the issues of liability or amount of damages unless it is obtained with our written consent. "* * * "We will pay no more than the limit(s) shown on the Declarations for one auto. * * * "* * * "The limits of protection available under this Uninsured/Underinsured Motorist Coverage will be reduced by: "(1) the amounts paid by or for those liable for bodily injury to any one we protect. "(2) the amount of any Liability Protection paid or payable to anyone we protect. "* * * *Page 696 "When the accident involves underinsured motor vehicles, we will not pay until all other forms of insurance applicable at the time of the accident have been exhausted by payment of their limits. * * * "* * * "Disagreement over the legal right to recover damages or the amount of damages shall be settled by arbitration. Arbitration must be initiated within two years from the date of the accident. "* * * "If claimants or their representatives bring action for damages, copies of suit papers must be sent to us at once. "In an action against us, we may require anyone we protect to join as party defendants those we allege to be liable. "Legal action to recover under Uninsured/Underinsured Motorists Coverage must be initiated within 2 years from the date of the accident. * * *" There is a clear inconsistency in the policy provisions with respect to underinsured motorist coverage. One clause provides that the insurer (Erie) will not be required to pay any amount under underinsured motorist coverage until all other insurance applicable has been exhausted by payment of the policy limits. As the Supreme Court held in the second paragraph of the syllabus of Bogan v. Progressive Cas. Ins. Co. (1988), 36 Ohio St. 3d 22, 521 N.E.2d 447: "An injured insured satisfies the `exhaustion' requirement in the underinsured motorist provision of his insurance policy when he receives from the underinsured tortfeasor's insurance carrier a commitment to pay an amount in settlement with the injured party retaining the right to proceed against his underinsured motorist insurance carrier only for those amounts in excess of the tortfeasor's policy limits." In Bogan, the insureds settled the case against the tortfeasors for approximately eighty-four percent of the policy limits. Here, plaintiffs settled their claim against one tortfeasor for approximately sixty-seven percent of the policy limit and against the other tortfeasor (whose vehicle apparently was not involved in the accident) for sixty percent of policy limits. Erie relies upon Motorists Mut. Ins. Cos. v. Grischkan (1993), 86 Ohio App. 3d 148, 620 N.E.2d 190. In Grischkan, the court of appeals refused to follow the holding in Bogan, but, instead, "distinguished" it because the settlement was for $25,000 less than was available, and, thus, much greater than the $4,000 differential involved in Bogan, even though the settlement figure represented seventy-five percent of the policy limits. The Grischkan court also attempted to *Page 697 distinguish McDonald v. Republic-Franklin Ins. Co. (1989),45 Ohio St. 3d 27, 543 N.E.2d 456, the second paragraph of the syllabus of which holds: "When an insured has given his underinsurance carrier notice of a tentative settlement prior to release, and the insurer has had a reasonable opportunity to protect its subrogation rights by paying the underinsured motorist benefits before the release but does not do so, the release will not preclude recovery of underinsurance benefits. (Bogan v. Progressive Cas. Ins. Co. [1988], 36 Ohio St. 3d 22, 521 N.E.2d 447, modified and explained.)" In doing so, the Grischkan court reasoned that the insurer in that case based its denial of underinsured motorist coverage at least in part upon the contention that the insured's injury was not worth an amount in excess of the tortfeasor's policy limits. That is not the case here. We cannot distinguish McDonald,supra, in similar fashion, since notice of proposed settlement was timely given, and Erie chose not to protect its interest by paying the underinsured motorist benefits prior to release. Accordingly, under the rule of McDonald, failure to exhaust underinsured benefits cannot preclude underinsured motorist coverage under the circumstances herein. There remains the issue of whether the assertion of the underinsured motorist claim is time-barred by the two-year limitation of the policy commencing with the date of the accident. Erie has relied upon Colvin v. Globe Am. Cas. Co. (1982), 69 Ohio St. 2d 293, 23 O.O.3d 281, 432 N.E.2d 167, which would support Erie's position. However, subsequent to the filing of Erie's brief herein, the Supreme Court overruled Colvin byMiller v. Progressive Cas. Ins. Co. (1994), 69 Ohio St. 3d 619,635 N.E.2d 317, holding that a policy provision precluding coverage unless the insured has either demanded arbitration or commenced a suit within one year from the date of accident is void as against public policy. Nevertheless, Erie points to some language in the opinion in Miller at 624, 635 N.E.2d at 321, which states: "Finally, we do not suggest that time-limitation provisions of the type at issue in this case are altogether prohibited. Consistent with our analysis, a two-year period, such as that provided for bodily injury actions in R.C. 2305.10, would be a reasonable and appropriate period of time for an insured who has suffered bodily injuries to commence an action or proceeding for payment of benefits under the uninsured or underinsured motorist provisions of an insurance policy." (Emphasis sic.) Although that comment does suggest that a two-year limitation would be appropriate, it does not suggest when the two years should commence with respect to underinsured motorist coverage. As pointed out above, the Erie policy expressly provides that: *Page 698 "When the accident involves underinsured motor vehicles, we will not pay until all other forms of insurance applicable at the time of the accident have been exhausted by payment of their limits. * * *" This suggests that there is no obligation of Erie under the underinsured motorist coverage until all other insurance is exhausted. Since R.C. 2305.10 provides for two years in which to commence the action against the tortfeasor, it is unrealistic to assume that that action would be concluded within a very short period after commencement of the action; therefore, very little, if any, time to exhaust policy limits will be afforded for commencing an action or arbitration proceedings subsequent to exhaustion of the tortfeasor's policy limits. Rather, it is unlikely that the limits of the other polices will be exhausted within two years of the accident. That was the situation in this case, the two-year period having expired prior to exhaustion of the tortfeasor's policy limits so that, as noted in the opinion in Miller, as to the result of a one-year limitation with respect to uninsured motorist coverage, "as a practical matter, the effect of the policy provision was to deprive the appellants of the coverage required by R.C. 3937.18." Furthermore, in a case decided the same day as Miller, the Supreme Court held in paragraphs two and four of the syllabus with respect to uninsured motorist insurance in Kraly v.Vannewkirk (1994), 69 Ohio St. 3d 627, 635 N.E.2d 323: "2. The validity of a contractual period of limitations governing a civil action brought pursuant to the contract is contingent upon the commencement of the limitations period on the date that the right of action arising from the contractual obligation accrues. "* * * "4. A provision in a contract of insurance which purports to extinguish a claim for uninsured motorist coverage by establishing a limitations period which expires before or shortly after the accrual of a right of action for such coverage is per se unreasonable and violative of the public policy of the state of Ohio as embodied in R.C. 3937.18. * * *" Under the policy provision, an insured's rights to payment by Erie for underinsured motorist coverage does not accrue until the tortfeasor's policy limits are exhausted. Under the rule of the second paragraph of the syllabus of Kraly, supra, the two-year limitation created by the policy cannot commence prior to that time. Accordingly, that limitation period cannot preclude the instant action, which was commenced within two years of the exhaustion of the other policies. For these reasons, we find that the trial court did not err in finding plaintiffs' claims not to be barred by the two-year limitation of the policy. Neither Erie's first nor second assignment of error is well taken. *Page 699 Turning to the two assignments of error raised by plaintiffs, the contention is that the trial court erred in finding defendant entitled to a setoff of $75,000. Although the trial court referred to "setoff," it is unclear as to the intent of the trial court with respect thereto. Plaintiffs and Erie both construe the setoff as being against the policy limits of Erie's policy with respect to underinsured motorist coverage. This may well be what the trial court intended, but the judgment itself does not so indicate. Rather, the import of the judgment is that the setoff is against the total amount of damages to which plaintiffs are entitled as a result of the automobile accident which is the subject of this action. Such a conclusion is consistent with the recent Supreme Court decision in Savoie v.Grange Mut. Ins. Co. (1993), 67 Ohio St. 3d 500, 620 N.E.2d 809. Erie continues to contend that the setoff should be from the $100,000 limits of liability, relying upon the provision of R.C.3937.18(A)(2) and an earlier Supreme Court decision inMotorists Mut. Ins. Co. v. Andrews (1992), 65 Ohio St. 3d 362,366, 604 N.E.2d 142, 146, which states: "* * * Reading this statute, in conjunction with the public policy behind its adoption, the inescapable conclusion is that, when determining whether a motorist is underinsured, theamount actually available for payment under the tortfeasor's policy must be compared with the insured's underinsured motorist coverage limits. If the amount available for payment is less than the insured's underinsured policy limits, then the insured is entitled to underinsured motorist coverage. * * *" (Emphasissic.) Andrews, however, does not support Erie's contention, nor is it inconsistent with Savoie, supra, which holds in the third paragraph of the syllabus: "An underinsurance claim must be paid when the individual covered by an uninsured/underinsured policy suffers damages that exceed those monies available to be paid by the tortfeasor's liability carriers. (Hill v. Allstate Ins. Co. [1990], 50 Ohio St. 3d 243, 553 N.E.2d 658, overruled.)" Any doubt as to the meaning of this paragraph of the syllabus is dispelled by the discussion of Savoie, which states, at 508,620 N.E.2d at 815: "In order to arrive at the proper conclusion in this case, it is critical to review the purpose of R.C. 3937.18, which explains how monies received from a tortfeasor's liability insurer reduce, or do not reduce, the limits of an underinsurance policy. An individual covered by an underinsurance policy is entitled to receive compensation in an amount no less than what he would receive if he had been injured by an uninsured motorist. James v. Michigan Mut. Ins. Co. (1985), 18 Ohio St. 3d 386, 18 OBR 440, 481 N.E.2d 272. Thus, underinsured motorists who suffer from injuries caused by an automobile accident are entitled to collect up to the full limits of their underinsurance policy to the extent that their damages exceed the amounts which the tortfeasor's insurer has already paid to them. The *Page 700 Savoies may collect up to the limits of their policy with Motorists to the extent that their damages exceeds the $225,000 which they are entitled to receive from Grange." Thus, Savoie makes it clear that the "setoff" of $75,000 is from the total damages sustained by plaintiffs, not from the underinsured coverage of the Erie policy. We shall construe the judgment of the trial court to be consistent with Savoie and R.C. 3905.18, as construed thereby, rather than inconsistent therewith. With such a construction, the trial court did not err, since the "setoff" will be from the total damages which plaintiffs sustained, rather than from the policy limits of the Erie policy. Plaintiffs also contend that the trial court erred in including the $25,000 policy of the tortfeasor Cottonbrook, contending that his policy was not available because, under the Erie policy, Erie would not recognize him as an uninsured or underinsured motorist because he was a "hit-and-run" motorist, whose vehicle had no contact with either plaintiffs' vehicle or the vehicle which struck plaintiffs. We find no merit to this contention, since the facts are that this motorist's insurer paid sixty percent of the policy limits or $15,000 as part of the settlement. Accordingly, we find no error on the part of the trial court in finding the available insurance coverage from the two underinsured motorists to be $75,000. Plaintiffs' first assignment of error is not well taken. By plaintiffs' second assignment of error, they contend that the trial court erred in failing to deduct reasonable costs of litigation from the $75,000 setoff. We find no provision either in the statute or in the Erie policy requiring such a deduction for expenses of litigation against a tortfeasor from the amount recovered from said tortfeasor in applying uninsured or underinsured motorist coverage. Plaintiffs rely upon the doctrine of quantum meruit, contending that Erie has benefitted from the settlement and now should share in the costs necessary to obtain the settlement. If the total damages eventually be determined to be less than the policy limits of the tortfeasors, there will be no recovery under the underinsured motorist coverage of the Erie policy. Although plaintiffs contend their damages exceed the amount of the tortfeasors' combined policy limits, that is an issue of fact yet to be determined. Accordingly, plaintiffs' second assignment of error is not well taken. For the foregoing reasons, both of plaintiffs' and both of defendant's assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas as construed herein is affirmed. Costs are assessed equally against the plaintiffs and defendant. Judgment affirmed. PETREE and DESHLER, JJ., concur. *Page 701

2016-07-06 06:36:51.765158+00

Per Curiam

This is an appeal on questions of law from a judgment of the Probate Court of Fayette County sustaining exceptions to the first and final account of Harry Warfield, administrator of the estate of Howard L. Brown. *Page 299 The widow, Goldie Brown, filed ten exceptions. Exceptions Nos. 2 and 4 were overruled. The court sustained exceptions numbered 1, 3, 5, 6, 7, 8, 9 and 10. The assignments of error in the main follow the rulings of the trial court on the various exceptions which were sustained. The court does not deem it necessary to discuss at length the applicable legal principles, but will briefly apply them to the essential facts, which will be stated in the discussion of the several assignments of error. A detailed statement of the facts which give rise to the controversy is found in the opinion of the trial court, in the case of In re Estate of Brown, which is published in 67 Ohio Law Abs., 291. The probate judge called the Judge of the Common Pleas Court to hear and determine the issues presented. In his first assignment of error the administrator contends that the acting probate judge had no authority to reverse, vacate or modify the former orders of the probate judge. The order of the court approving the inventory, the order of the court confirming the sale of personal property at private sale, and the order determining inheritance tax, did not deprive this exceptor of the right to file exceptions to the first and final account. In his second and third assignments of error the question as to the legality and sufficiency of the accounting is raised. A part of the assets of the estate consisted of a junk yard, including equipment and approximately 700 junked cars. The administrator filed an application and secured an order authorizing him to sell the junk at private sale, which was done over a period of several months. In the liquidation of such assets the administrator employed a bookkeeper, a manager, and several other employees for the purpose of preparing the junk for sale, the sale of the same, and the transportation. In some instances *Page 300 the purchaser paid for the junk by check, and in other instances by cash. The checks were immediately deposited in a bank by the administrator. The cash was retained at the office in a cash account, out of which cash disbursements were made for various purposes, such as wages to the employees, licenses for trucks, insurance and various other items. A detailed record of these receipts and disbursements was kept in a book provided for that purpose at the office of the junk yard. As the cash would accumulate, lump sums of such cash were turned over to the administrator, which he deposited in the bank. In his accounting he charged himself with the receipt of such lump sum payments. He did not account in detail for the receipt of cash for sales made to various purchasers; neither did he ask credit for the various items of cash disbursements. The administrator contends that he is not required, under the circumstances, to give a detailed statement of such cash receipts and cash disbursements; that the matter of the liquidation of this estate was well known to the widow and to his wife, the daughter of the decedent, the only other heir at law; that no charge of fraud or misappropriation of funds is made; and that as a practice the administrator is not required to account for each and every item of cash received and cash disbursed, otherwise the Probate Court records would become too voluminous. This court recognizes the established practice countenanced by the members of the bar and the various Probate Courts in the reporting of sales of personal property, and in making an accounting to the court in which the fiduciary is not required to give a detailed statement of receipts and disbursements. In most instances this is satisfactory, not only to the court but also to the interested parties. However, where an objection is raised and an issue is presented the court *Page 301 must require the fiduciary to comply with the provisions of Section 2109.30, Revised Code, formerly Section 10506-34, General Code, which section provides in part: "Every account shall include an itemized statement of all receipts of the fiduciary during the accounting period and of all disbursements and distributions made by him during such period, verified by vouchers or proof." The trial court sustained these two exceptions and ordered the administrator to file an amended and supplemental account, itemizing such cash receipts and cash disbursements. The record shows that counsel for the administrator, on two occasions during the hearing, indicated the willingness of the administrator to render such supplemental account. In view of the exceptions and the manner in which the assets were liquidated and the records kept at the junk yard, this court is of the opinion that the trial court very properly sustained these two exceptions. In his fourth assignment of error the administrator contends that the trial court erroneously sustained exception No. 5 in which the question was raised as to the right of the administrator to pay himself as wages during the liquidation of the assets at the junk yard the sum of $75 per week. The record shows that the widow and exceptor, who at that time was represented by her personal counsel, agreed that for a period of 60 days the administrator should be permitted to compensate himself at the rate of $75 per week for his services in the liquidation of the assets at the junk yard. The record shows also that this liquidation process extended over a period of more than six weeks. The administrator took credit for $75 per week for a period of thirteen weeks. The trial court sustained this exception, principally on the *Page 302 ground that the administrator could not compensate himself for his services without first having filed a written application with the Probate Court and securing a court order. Aside from the fact that the record shows that the exceptor agreed to such compensation for a limited period, thinking at the time that during such period the liquidation would be completed, we do not believe that the failure of the exceptor to agree to compensation for a longer period is material. About two months after the administration was opened, the administrator filed a written application with the Probate Court to sell the assets of the junk yard at private sale. The Probate Court, on March 27, 1953, in granting the order authorized the administrator to "proceed according to law to sell said personal property at private sale, for the best price obtainable." The administrator at that time was in the process of liquidating such assets at private sale. The record shows that subsequently the administrator had numerous conferences with the probate judge relative to his conduct of the administration of this estate and particularly the liquidation of the assets at the junk yard. The administrator called as a witness the probate judge and sought to produce evidence to the effect that the administrator, together with his counsel, had made a verbal application to the probate judge for authority to compensate himself at the rate of $75 per week during the time the junk yard was being liquidated, and that the probate judge verbally made such an order. The trial court sustained an objection to this line of testimony, and a proffer was made as follows: "If the witness had been permitted to answer he would have stated that he did verbally authorize the payment of $75 per week to the administrator for extra compensation, and he believed that it would be reasonable and proper." In our opinion *Page 303 this testimony should have been admitted and prejudicial error was committed in the failure to admit such testimony. Upon the basis of this testimony a nunc pro tunc order would have been proper. A nunc pro tunc order can be made at this time, journalizing the verbal order which was made by the probate judge. 23 Ohio Jurisprudence, 673, 678, Sections 249, 256. The trial court was in error in sustaining this exception, and this assignment of error is well made. In his fifth assignment of error the administrator contends that the trial court erroneously sustained exception No. 6, which raises the question as to the right of the manager of the business to draw a weekly salary as set out in the account, which shows that he took part of his salary in cash and part by check and that the cash payment amounted to $25 per week. At the time the administrator took charge of the administration of this estate, according to the record, he agreed with the manager to pay him an additional $25 weekly salary in cash for the additional responsibilities which the manager would assume over and above the responsibilities which he carried during the lifetime of the decedent. No question is raised as to the reasonableness of such compensation. The exception was sustained by the trial court on the ground that the administrator was first required to secure an order from the Probate Court. The record shows that all parties concerned recognized the fact that in the liquidation of the assets of the junk yard the administrator would not only be required to expend time and effort himself, but would require the assistance of the former manager who was acquainted with prospective purchasers, who knew the junk yard business, and whose services were needed to expedite the liquidation. In our opinion the absence of a court order did not deprive the administrator of the right to employ *Page 304 and compensate the necessary workmen to conduct the liquidation; and so long as no question is raised as to the reasonableness of such compensation, the administrator should be entitled to take credit for such items. In our opinion the trial court erroneously sustained this exception. In his sixth assignment of error the administrator contends that the trial court erroneously sustained exception No. 7, which raises the question as to the authority of the administrator to grant vacation periods to the employees, during which time they were compensated at the regular rate. Here again the Probate Court sustained this exception on the ground that the administrator had not first secured a court order. The same legal principle applies to this matter as to the matter discussed under assignment of error No. 5. The record shows that at the time the administrator took charge of the business he agreed with his employees that they should have a vacation period with pay. He carried out this agreement and took credit in his account for compensation paid to three employees for a one-week vacation period. In our opinion the trial court erroneously sustained this exception. In his seventh assignment of error the administrator contends that the trial court erroneously sustained exception No. 8, which raises the question as to the amount of compensation to which the administrator is entitled for the administration of the estate. The administrator took credit for compensation which exceeded that allowed by Section 2113.35, Revised Code, formerly Section 10509-192, General Code. The administrator did not file an application for additional compensation for extraordinary services as provided in Section 2113.36, Revised Code, formerly Section 10509-193, General Code. Although it is a practice for an administrator to file a written application and secure *Page 305 a court order, either upon notice to the parties interested or at an ex parte hearing, prior to filing the account, the statute does not require a formal written application. Section 2113.36, Revised Code, authorizes the Probate Court to grant an additional allowance over and above that provided for in Section2113.35, Revised Code, for actual and necessary expenses and for extraordinary services not required of the administrator in the common course of his duty. When the administrator filed his account and asked the court to allow a credit for compensation over and above that allowed under Section 2113.35, Revised Code, the matter of determining whether such an allowance should be granted was before the court. Upon exception being filed to this credit, an issue of fact was made which the Probate Court could try and determine. The acting probate judge took testimony on this exception, but did not attempt to fix compensation, reserving it for future determination. In view of the reservation we do not find this assignment of error well made. In his eighth assignment of error the administrator contends that the trial court erroneously sustained exception No. 9, which raises the question as to the reasonableness of counsel fees. The record shows that according to the minimum fee schedule adopted by the bar of Fayette County and followed as a matter of practice by the Probate Court the counsel fees for services rendered would amount to approximately $1,388. The administrator took credit for $2,243. Under Section 2113.36, Revised Code, "reasonable attorney fees paid by the executor or administrator shall be allowed as a part of the expenses of administration. The court may at any time during administration fix the amount of such fees and, on application of the executor or administrator or the attorney, shall fix *Page 306 the amount thereof." The trial court, in rejecting the item for counsel fees, to a large extent based its disallowance of this item on the fact that no application had been filed to fix such fees. While it is the practice in most Probate Courts to file an application to fix counsel fees prior to the filing of an account, the statute does not expressly provide that the filing of an application is essential. The statute gives the right to the Probate Court at any time during the administration to fix the amount of such fees. When the administrator sought to take credit in his account for the payment of $2,243 to counsel for legal services the matter was before the court. Upon an exception being filed to this credit an issue of fact was made which the Probate Court could try and determine. Testimony was taken as to the extent of services rendered by counsel and what would be reasonable compensation for such services. However, the court did not determine the amount of fees for which the administrator was entitled to take credit, but reserved this matter for future determination. In view of the reservation this assignment of error is not well made. In his ninth assignment of error the administrator contends that the trial court erroneously sustained exception No. 10, which raises the question as to the amount for which he should be charged for sale of the remaining portion of the junk to Helen Warfield. It appears that the highest bid was $2,850, and that it was agreed that the administrator would sell for the highest bid. The administrator takes the position that in view of the fact that there were certain moneys due Helen Warfield from her mother, the exceptor herein, for rents collected on certain pieces of real estate, he should not be required to charge himself for the full amount of said sale, until exceptor properly accounted for rents. The trial court was correct in sustaining this *Page 307 exception on the ground that the failure of the exceptor to account for rents collected does not relieve the administrator of his duty to correctly report the full amount of the sale price of $2,850. This assignment of error is not well made. In his tenth assignment of error the administrator contends that the trial judge erroneously held that the administrator failed to comply with the provisions of Section 2113.30, Revised Code, formerly Section 10509-9, General Code, which states that after the expiration of one month following the date of his appointment an administrator is required to apply to the Probate Court for authority to continue the business. The court held that the facts in this case placed the administrator within the provisions of this section. This section has no application where the administrator is not continuing the business but is in the process of the liquidation of assets under a court order for the sale of the assets at private sale. The record is very clear that at no time did any of the parties in interest claim that the business was being continued, but at all times recognized that the business was being liquidated. Unquestionably this liquidation was being conducted under an order of court for the sale of the assets at private sale. In our opinion, the trial court was in error in ruling that the administrator failed to comply with the provisions of Section 2113.30, Revised Code. The judgment of the trial court is affirmed in part and reversed in part. Judgment affirmed in part and reversed in part. WISEMAN, P. J., MILLER and HORNBECK, JJ., concur. *Page 308

2016-07-06 06:36:52.930009+00

Ford

Appellant, Robert F. Owens, has filed a motion that this court reconsider our decision in State v. Owens (June 28, 1996), Lake App. No. 95-L-078, unreported. Appellant contends that this court's decision was in error and that we should, therefore, reconsider the opinion pursuant to App.R. 26(A). App.R. 26 does not provide specific guidelines to be used by an appellate court when determining whether a decision should be reconsidered or modified. In Matthews v. Matthews (1981), 5 Ohio App. 3d 140,143, 5 OBR 320, 323, 450 N.E.2d 278, 282, the court stated: "The test generally applied [in App.R. 26(A) motions] is whether the motion for reconsideration calls to the attention of the court an obvious error in its decision *Page 336 or raises an issue for our consideration that was either not considered at all or was not fully considered by us when it should have been." A review of appellant's motion reveals that it has not demonstrated any obvious error or pointed out any issue that was not adequately addressed in the opinion. An application for reconsideration is not designed for use in instances where a party simply disagrees with the conclusions reached and the logic used by an appellate court. App.R. 26 provides a mechanism by which a party may prevent miscarriages of justice that could arise when an appellate court makes an obvious error or renders an unsupportable decision under the law. Appellant has made no such demonstration in his application for reconsideration. Concerning the third assignment, appellant disagrees with our decision that the trial judge's substitution of the alternate juror for the reportedly disabled juror was not a decision that was subject to the manifest necessity standard. Since appellant's former counsel failed to object to this alleged error, we reviewed the assignment under the plain error standard. Upon reconsideration, we conclude that no error was committed by this court. Appellant relies on Hines v. State (1873), 24 Ohio St. 134, in support of the proposition that the substitution of a duly impaneled alternate juror is conditioned upon a finding of manifest necessity by the trial court. Appellant's reliance on this case is misplaced. The holding in that case applied to the trial court's dismissal of an entire jury due to the occurrence of a mistrial, and not to the situation where a duly impaneled alternate juror has been substituted for a reportedly disabled juror, as was the case here. As stated in the opinion, "[t]he replacement of a juror with an alternate, as contemplated by R.C. 2945.29 and Crim.R. 24(F) is within the trial court's discretion. * * *" (Citation omitted.) State v. Gleason (1989), 65 Ohio App. 3d 206, 210,583 N.E.2d 975, 977; State v. Shields (1984), 15 Ohio App. 3d 112,119, 15 OBR 202, 210, 472 N.E.2d 1110, 1118-1119. The trial court's decision to substitute an alternate juror for a reportedly disabled juror is not contingent upon a showing of manifest necessity. State v. Hopkins (1985), 27 Ohio App. 3d 196,198, 27 OBR 235, 237, 500 N.E.2d 323, 325-326. Contrary to appellant's assertion, the principle announced in Hopkins continues to represent the prevailing view in Ohio on this issue.1 The fact that the trial court did not make a more extensive inquiry into the circumstances surrounding the reportedly disabled juror's illness did not demonstrate an abuse of discretion by the trial court. The statement that the *Page 337 juror was in the emergency room, without more, provided sufficient grounds to support the trial court's decision to proceed with the substitution. The trial court's substitution was not arbitrary, unreasonable, or capricious, and the decision fell squarely within its discretionary authority. Further, the fact that the substitution occurred on the second day of trial and prior to deliberations reinforces our view that appellant suffered no prejudice as a result of the trial court's decision. In his artful dialectic, appellant's counsel confuses the composition and subsistence of a jury panel with one of the possible results of its deliberative exercise. Convoluting his syllogistic premises in his deductive submission does not really alter the stripes on the tiger or the spots on the leopard regarding what his primary argument is and its obvious bulwarks, and our alleged deficiencies and inadequacies in comprehending his self-styled Ibsenian intellectualism. The nonapplication of inappropriate authority does not translate to a deficient substantive analysis and review; ergo, appellant's argument regarding the claimed ignoring of the first two paragraphs of the syllabus (incidentally, incorrectly referred to by the appellant as the first two syllabi) of Hines, supra. Simply stated, the jury was not discharged in this case before reachinga verdict. An empaneled juror was excused before the verdict! We are not impervious or blurred as to what the appellant's desired "state of the law" should be; but, it would take more than a proverbial quantum leap to reach the desired summit of his alp with respect to his objection. Appellant's argument concerning the third assignment is without merit. With regard to appellant's fourth assignment of error pertaining to ineffective assistance of counsel, it is our view that no error was committed. Because appellant's former counsel failed to object to the substitution of the alternate juror at the appropriate time during the proceedings, the trial court's decision was subject to review under the plain error standard. After reexamining the record, we find that no error was committed. Because we have already determined that a showing of manifest necessity is not required as a condition precedent to substitution, the failure of appellant's former counsel to object to the substitution does not qualify as an act that falls below an objective standard of reasonable representation. We are fully cognizant that appellant's counsel contended for ineffective assistance of counsel under this assignment. Only an undesired level of opaqueness would have one contending that this issue was preserved for review by a coextensively nonexistent objection. How else then under fundamental concepts of appellate review would we be enabled to address this argument? We are of the considered view that appellant's counsel would prefer that we not undertake our examination and conclusion on this point in a celestial vacuum capsule without *Page 338 any elements of gravity present. Appellant's assertion concerning the fourth assignment is not well founded. Appellant also challenges this court's resolution of the sixth assignment of error. Appellant's issue under this assignment was "On this record, was there any reasonable theory that [supported] intent to harm?" Appellant claimed that he intended only to scare Kurt Ross when he fired two shots at his vehicle. In the opinion we stated that "the shooting of a gun in a place where there is a risk of injury to one or more persons supports the inference that appellant acted knowingly," regardless of his purpose. State v. Gregory (1993), 90 Ohio App. 3d 124,131, 628 N.E.2d 86, 91. In the case sub judice, appellant shot a gun not just once, but twice, at Ross's moving car carrying two passengers while they were traveling on an icy expressway. Again, as we stated in the opinion, the risk of physical harm to Kurt Ross and Cynthia Combs under those circumstances was significant. In our humble opinion, the doing of an act which causes a significant risk of harm readily satisfies the required probability of harm under R.C. 2901.22(B). Accordingly, the jury's determination that appellant acted knowingly was substantiated by the evidence. Appellant cites as erroneous our reference to the legal presumption set forth in State v. Johnson (1978), 56 Ohio St. 2d 35,39, 10 O.O.3d 78, 80-81, 381 N.E.2d 637, 640, specifically that a person is presumed to intend the natural, reasonable, and probable consequences of his voluntary acts. A review of the current case law reveals that the rule announced in Johnson remains valid case law in Ohio, State v. Carter (1995), 72 Ohio St. 3d 545,554, 651 N.E.2d 965, 974-975, if not employed to improperly shift the burden of proof. Notably, appellant failed to set forth in his appellate brief any case citations whatsoever to support the alleged error in derogation of App.R. 16(A)(7). After reexamining the entire record, we conclude that appellant's argument concerning the sixth assignment is not well founded. To paraphrase the widely acclaimed and universally restated quotation from decades ago uttered between Earthquake McGoon and Indian Joe, "as any `person' can plainly see," and contrary to counsel's intonations, our opinion was directly and unequivocally responsive to his assignments of error, albeit not with the result he desired. Again, his arguments here are simply restatements of those previously advanced. Although we may harbor some empathy with respect to the frustrating odyssey of appellant's counsel on the subject of "manifest necessity" having equal application to the discharge of a single juror as well as the whole panel, we acknowledge *Page 339 similar pains when we are unable to remake the legal wheel in total conformity with our individualized concepts. We have observed counsel's propensity to indulge in hyperbolic forays. However, we assure those who may be interested that such excesses do not distract us to any measurable, perceptible extent from what some may term a mundane plodding in our search for the correct path to the truth — both factual and legal. We seek no apogees consciously or subconsciously. In our quest to resolve appellate arguments in our role as anerror court, we try our level best to adhere to the wisdom of that old Polish proverb: "Cz l owiek kt o ry dokladnie idzie zaznaczon a drog a nie w pada w do l y i doliny Karpackich g o r."2 Additionally, in our efforts to achieve sound opinions, we are heartened by the knowledge that the judiciary does not have a complete monopoly in the exercise of misjudgment. In the course of legal events, even attorneys are occasionally "wrong." Appellant's arguments are without merit, and the motion for reconsideration is overruled. Motion for reconsideration overruled. CHRISTLEY and NADER, JJ., concur. 1 For further authority on this issue, we direct appellant's attention to this court's decision in State v. Sallee (1966),8 Ohio App. 2d 9, 37 O.O.2d 5, 220 N.E.2d 370. 2 Reporter's Note: "The person who clearly follows the marked path does not fall into the canyons and caverns of the Carpathian Mountains." *Page 340

2016-07-06 06:36:50.801345+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant-appellant Leo Carothers ("defendant") appeals from the judgment of the trial court, asserting that his jury waiver was invalid, which thereafter rendered the trial court without jurisdiction to conduct a bench trial on the charges against him. The defendant also challenges the sufficiency of the evidence. For the reasons set forth below, we affirm. {¶ 2} The defendant was indicted on one count of aggravated robbery in violation of R.C. 2911.01 with a one-year firearm specification in violation of R.C. 2941.141 and a three-year firearm specification in violation of R.C. 2941.145. The defendant signed a jury trial waiver form, after which the trial court engaged in a colloquy with the defendant to determine that his waiver was effective. The trial court accepted the waiver and thereafter conducted a bench trial. The defendant was found guilty of aggravated robbery and the three-year firearm specification and was sentenced accordingly. It is from this ruling that the defendant now appeals, asserting two assignments of error for our review. {¶ 3} "I. The trial court was without jurisdiction to conduct a bench trial, because the jury waiver in the case at bar was not executed in strict compliance with the statutory requirements." {¶ 4} In his first assignment of error, the defendant maintains that his waiver of a jury trial was ineffective and, as a result, the trial court was without jurisdiction to conduct a bench trial. He advances two arguments in support of this assignment of error: that the jury waiver was not signed in open court and that the waiver was not journalized before his trial began. {¶ 5} Was the jury waiver signed in "open court?" {¶ 6} R.C. 2945.05 governs jury waivers and provides: {¶ 7} "In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: `I * * *, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Judge of the Court in which the said cause may be pending. I fully understand that, under the laws of this state, I have a constitutional right to a trial by jury.'" {¶ 8} Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had an opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial. {¶ 9} In State v. Pless (1996), 74 Ohio St. 3d 333, paragraph one of the syllabus, the Ohio Supreme Court stated: {¶ 10} "In a criminal case where the defendant elects to waive the right to trial by jury, R.C. 2945.05 mandates that the waiver must be in writing, signed by the defendant, filed in the criminal action and made part of the record thereof. Absent strict compliance with the requirements of R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without a jury." {¶ 11} In State v. Spivey (1998), 81 Ohio St. 3d 405, 408, the Ohio Supreme Court stated: "The Criminal Rules and the Revised Code are satisfied by a written waiver, signed by the defendant, filed with the court, and made in open court, after arraignment and opportunity to consult with counsel." Accord State v. Jells (1990), 53 Ohio St. 3d 22,26. {¶ 12} As to the requirement that the waiver be made "in open court," the court in State v. Walker (1993), 90 Ohio App. 3d 352, 358 stated: {¶ 13} "There must occur, in open court, a colloquy between the trial judge and the defendant himself, extensive enough for the judge to make a reasonable determination that the defendant has been advised and is aware of the implications of voluntarily relinquishing a constitutional right. We do not take the statute to mean, as urged by appellant, that the written waiver must be actually signed in open court, as long as the signed writing has been made a part of the record and the waiver is reaffirmed in open court." {¶ 14} Accord State v. Morris (1982), 8 Ohio App. 3d 12, 14, (noting that this court has held that a written waiver signed by the defendant prior to trial and followed by a one sentence inquiry by the trial judge is sufficient to insure defendant's rights). {¶ 15} In this case, the record demonstrates that on February 25, 2003, in a colloquy with the defendant in open court, the trial judge reaffirmed the defendant's written jury waiver. {¶ 16} The defendant selectively quotes from the transcript that prior to beginning trial, the trial court stated: {¶ 17} "The Court: * * * I have just been advised, Mr. Carothers, that you have decided to give up your right to a trial by jury and have this case tried to the Court without a jury, and I have a waiver of jury trial. Is this your signature on it, sir? {¶ 18} "The defendant: Yes, sir." (T. 5). {¶ 19} The defendant then maintains that after this statement, the waiver was executed. However, the defendant omits the portion of the transcript which demonstrates the trial court's reaffirmation of his jury trial waiver. The court went on to state: {¶ 20} "The Court: I do have to go through some questions here. I know [the defense attorney], I worked with him, he's been in this courtroom many, many times. I trust him but I still have to put on the record that this is a voluntary waiver." (T.5). {¶ 21} The trial court then conducted a colloquy with the defendant regarding his waiver and thereafter accepted it as knowing, intelligent and voluntary. We reject the defendant's characterization of the jury trial waiver colloquy and find that his waiver was made in open court. {¶ 22} Was the defendant's jury trial waiver properly journalized? {¶ 23} The defendant also contends that the trial court lacked jurisdiction to conduct a bench trial because his jury trial waiver was filed, but not journalized, prior to the start of trial. {¶ 24} This court has repeatedly held that "strict compliance with R.C. 2945.05 is met upon filing the jury waiver; there is no rule pertaining to when the filing must occur" State v. Thomas, Cuyahoga App. No. 82130, 2003-Ohio-6157, citing: State v. Franklin, Cuyahoga App. No. 81426, 2003-Ohio-2649, P15, citing State v. McKinney, Cuyahoga App. No. 80991, 2002-Ohio-7249; State v. Sekera, Cuyahoga App. No. 80690, 2002-Ohio-5972. {¶ 25} "R.C. 2945.05 only requires that the waiver occur before trial and that the waiver is filed, time-stamped and contained in the record. See State v. Pless (1996), 74 Ohio St. 3d 333, 1996-Ohio-102;State v. Gipson (1998), 80 Ohio St. 3d 626, 1998-Ohio-659. There is norequirement that the waiver be filed and placed in the record beforetrial. See State v. Jones (Feb. 5, 1999), Hamilton App. No. C-980270" (Emphasis added.) State v. Antonic (Nov. 22, 2000), Cuyahoga App. No. 77678. {¶ 26} In this case, the record reflects that the jury waiver form signed by the defendant was filed on February 24, 2003, the day before trial. Since the jury waiver occurred before trial and the waiver form was filed, time-stamped and placed in the record, we find that the jury waiver in this case clearly met the statutory requirements. We therefore overrule the defendant's first assignment of error. {¶ 27} "II. Leo Carothers has been deprived of his liberty without due process of law by his convictions on the firearm specification which was not supported by sufficient evidence to prove his guilt beyond a reasonable doubt." {¶ 28} The defendant maintains that there was insufficient evidence to demonstrate that the gun that he allegedly possessed while committing the underlying felony constituted a firearm under R.C. 2923.11. Specifically, he contends that, since the gun was never recovered, the state was unable to present testimony that the weapon was ever fired on the night of the robbery or test fired by the state following the burglary. It follows, he argues, that there is insufficient evidence to prove beyond a reasonable doubt that the gun was "operable," constituting a firearm under R.C. 2923.11. We disagree. {¶ 29} The defendant further asserts that just as a factfinder might infer from the circumstances that the weapon was operable, the factfinder might infer that the weapon was an inoperable prop, since the defendant never removed the gun from his waist band However, we note that a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v.Jenks (1991), 61 Ohio St. 3d 259. An appellate court must view the evidence in a light most favorable to the prosecution and determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Jenks, supra. at paragraph two of the syllabus, citing Jackson v. Virginia (1979), 443 U.S. 307. Thus a reviewing court will not overturn a conviction for insufficiency of the evidence unless we find that reasonable minds could not reach the conclusion reached by the trier of fact. State v. Treesh (2001),90 Ohio St. 3d 460. Moreover, the credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact, who observed the witness in person. State v. Antill (1964),176 Ohio St. 61; State v. DeHass (1967), 10 Ohio St. 2d 230. {¶ 30} R.C. 2941.145 provides, in relevant part: {¶ 31} "(A) Imposition of a three-year mandatory prison term upon an offender * * * is precluded unless the indictment, count in the indictment, or information charging the offense specifies that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense." {¶ 32} R.C. 2923.11 (B)(1) defines a "firearm" as: {¶ 33} "Any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. `Firearm' includes an unloaded firearm, and any firearm that is inoperable but that can be readily rendered operable." {¶ 34} The statute further states: {¶ 35} "(2) When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm." {¶ 36} The Ohio Supreme Court has held that proof of operability can be established beyond a reasonable doubt by testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. State v. Murphy (1990),49 Ohio St. 3d 206, syllabus. The Ohio Supreme Court later refined the manner by which the state may prove a firearm specification in State v.Thompkins (1997) 78 Ohio St. 3d 380, stating: {¶ 37} "In determining whether an individual was in possession of a firearm and whether the firearm was operable or capable of being readily rendered operable at the time of the offense, the trier of fact may consider all relevant facts and circumstances surrounding the crime, which include any implicit threat made by the individual in control of the firearm." Id. at 385. {¶ 38} In this case, the defendant was arrested after burglarizing a dry cleaning store. The defendant was carrying in his waistband what appeared to the victim, Ms. Malone, to be a real gun. The defendant announced to the victim that he intended to "empty full clips tonight." The defendant then stated, "No, I'm for real," as he placed his hand on the handle of the gun, then said "pull the phone cord out of the wall and get money out of the register." We find that, under the facts and circumstances in this case, it was reasonable for the trial court to conclude that the defendant's words and actions were meant to imply that his gun was in fact operable on the night of the burglary. {¶ 39} While the defendant concedes that operability may be inferred from the facts and circumstances of a case, he argues that the state relied solely on circumstantial evidence, the credibility of which had been undermined by other testimony in the case. Specifically, he maintains that his father's testimony that the defendant owned only a toy gun weighs in favor of finding the weapon inoperable. However, we find this testimony irrelevant in determining whether the defendant made representations to Ms. Malone or acted in such a manner on the night of the burglary which would lead Ms. Malone to believe that he was carrying an operable firearm. We therefore reject the defendant's argument that the state failed to prove that the weapon was operable, as defined by the firearm statute, simply because the weapon was never fired that night by the defendant or thereafter test fired by the state. {¶ 40} Upon review of the entire record and, after viewing the evidence in a light most favorable to the prosecution, we find that the trial court could have found the essential elements of the firearm specification beyond a reasonable doubt. We therefore overrule this assignment of error. {¶ 41} The judgment is affirmed. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. 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. Frank D. Celebrezze, Jr., J., concurs. Anne L. Kilbane, P.J., concurs in judgment only.

2016-07-06 06:36:50.897109+00

JOURNAL ENTRY AND OPINION *Page 3 {¶ 1} Appellant Darrick Wade appeals his conviction for breaking and entering and theft. After a thorough review of the record, and for the reasons set forth below, we affirm. {¶ 2} On June 20, 2006, the Cuyahoga County Grand Jury issued an indictment against appellant, charging him with one count of breaking and entering, in violation of R.C. 2911.13(A), a fifth degree felony, and one count of theft of property in the amount less than $500, in violation of R.C. 2913.02, a first degree misdemeanor. At his arraignment on July 5, 2006, appellant entered a plea of not guilty on both counts. {¶ 3} On October 23, 2006, a jury trial commenced. After the state's case was presented, appellant made a Crim.R. 29 motion for acquittal, which the court denied. In the defense's case, appellant testified on his own behalf. At the close of the defense's case, appellant renewed his motion for acquittal, and it was again denied. On October 24, 2006, the jury returned a guilty verdict on both counts of the indictment. On December 7, 2006, the trial court sentenced appellant to serve concurrent terms of imprisonment of six months on count one and 180 days on count two. {¶ 4} Appellant filed his notice of appeal on January 4, 2007. {¶ 5} The facts that give rise to this appeal occurred on May 8, 2006. Bowman Industries had been hired to perform the demolition process of a *Page 4 warehouse owned and operated by Federal Equipment Company, located at 6040 Truscon Avenue in Cleveland, Ohio. On that date, at approximately 6:50 p.m., a private security officer for Cuyahoga Valley Patrol allegedly witnessed appellant attempting to remove copper wiring and pipes from in and around the warehouse by placing them in his pickup truck. {¶ 6} At trial, the state presented witnesses who testified that appellant had no permission to be at the location, nor permission to remove any salvage materials, including copper wiring, from the property. These witnesses included Edward Nehez, the vice president of operations for Federal Equipment Company; Kenneth Niedhammer, the security officer for Cuyahoga Valley Patrol; and Daniel David, a Cleveland police officer. {¶ 7} Edward Nehez testified regarding the issue of ownership of the property. He stated that the warehouse was owned by Federal Equipment Company, that Bowman Industries had been hired to demolish the building, and that only Bowman Industries' employees were entitled to take anything from the property as part of the demolition process. Nehez testified that Bill Bowman, owner of Bowman Industries, never gave anyone permission to be on the property except his employees in the course of their work demolishing the warehouse. {¶ 8} Kenneth Niedhammer testified that he observed appellant enter the area around the building. There was no dispute that the fence around the area in which appellant was observed was open, and that the overhead warehouse door *Page 5 was open. The weather that day was clear, and it was still sunny at 6:50 p.m. Niedhammer testified that he approached appellant, and appellant told him he had permission to be on the property and to take scrap materials. Niedhammer testified he detained appellant while he made some phone calls. {¶ 9} According to Niedhammer's testimony, at no time during his interaction with appellant was appellant uncooperative; in fact, Niedhammer testified that appellant was forthcoming about the details of his actions. Niedhammer testified that he contacted the Cleveland Police Department, and Officer Daniel David arrived on the scene approximately one hour later. Officer David testified that he spoke with Niedhammer, verified appellant's identity and his ownership of the pickup truck, and arrested appellant. {¶ 10} Appellant testified on his own behalf. He testified that he was a licensed contractor in the scrapping business and had owned his own company for 13 years. He testified that he had spoken to a Bowman employee earlier in the day on May 8th, and the employee told appellant he could retrieve loose scrap metal from around the perimeter of the building after 5:00 p.m. Appellant testified he returned to the warehouse around 6:00 p.m. that evening and parked his truck in plain view near the entrance to the warehouse. He then began putting copper wire and pieces of metal pipe he found near an open demolition area of the building into his truck. Appellant testified that during the time he was loading his truck, the security officer drove up to him and asked him what he was doing. Appellant testified that he told the security *Page 6 officer he had permission to be there and that he was getting scrap from the outside perimeter of the building and not from inside the warehouse. {¶ 11} Appellant testified that the value of the scrap material he put in his truck was approximately $20. He testified that some time after his arrest, he spoke with Bill Bowman and asked Bowman if the employee who allegedly gave him permission to take scrap materials would tell his story to the police. Appellant testified that Bowman told him that this employee refused to verify appellant's story because the employee knew it was against company policy, and he was afraid to lose his job. Bowman did not testify, so this portion of appellant's story was not corroborated by another witness. {¶ 12} The jury returned a guilty verdict on the breaking and entering charge and the theft charge. Review and Analysis {¶ 13} "The trial court erred in denying appellant's motions for acquittal of the charges since the state failed to sustain its burden of proof." {¶ 14} In his sole assignment of error, appellant argues that the evidence presented at trial was not sufficient to support a guilty verdict on either count. Specifically, he argues that on the breaking and entering charge, the state failed to present evidence that he acted with "force, stealth, or deception" or that he acted "with purpose to commit theft"; and on the theft charge, the state failed to demonstrate ownership of the property. *Page 7 {¶ 15} Crim.R. 29(A) states, in pertinent part, "[t]he court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses." Under Crim.R. 29, a trial court "shall not order an entry 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." State v. Bridgeman (1978),55 Ohio St. 2d 261, syllabus. "A motion for judgment of acquittal under Crim.R. 29(A) should only be granted where reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987),33 Ohio St. 3d 18, 23. {¶ 16} Thus, the test an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal is the same as a challenge based on the sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356. In State v. Jenks (1991), 61 Ohio St. 3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: {¶ 17} "[T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial and determine whether such evidence, if *Page 8 believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St. 2d 169. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct 2781, 61 L. Ed. 2d 560. Theft Conviction {¶ 18} We first address the sufficiency of the evidence regarding the charge of theft. R.C. 2913.02 states that "(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: (1) without the consent of the owner or person authorized to give consent; (2) beyond the scope of the express or implied consent of the owner or person authorized to give consent; (3) by deception; (4) by threat; (5) by intimidation." {¶ 19} There was conflicting testimony as to whether appellant had consent from Bowman Industries to be on Federal Equipment Company property and to remove scrap material. Appellant argues that a Bowman employee gave him permission, but he was unable to identify that employee by name. The state presented two witnesses, Edward Nehez and Kenneth Niedhammer, who both testified that Bill Bowman never gave anyone except his employees permission to be on a job site. They further testified that Bill Bowman did not specifically give appellant permission to be at the warehouse on May 8th or any other day. Appellant contradicted the state's witnesses with only his own testimony that he had permission from a Bowman employee. *Page 9 {¶ 20} The facts presented to the jury were sufficient to support a finding that appellant did not have consent from "the owner or person authorized to give consent." R.C. 2913.02(A)(1). Appellant did not produce a witness to testify that he had consent. Further, he testified that Bowman told him no employee would come forward because it was against company policy to give non-employees consent to remove scrap material. Bowman himself was not called by the defense to admit or deny the truth of appellant's story. {¶ 21} Appellant did not refute the issue of lack of consent as an element of theft. Having examined the evidence admitted at trial, we find that such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. Clearly, the jury believed that appellant did not have consent to remove scrap material from the warehouse on May 8th. {¶ 22} Appellant also challenges the issue of ownership of the scrap material he put in his truck. We find that his argument is without merit, and the jury could reasonably find that the scrap material found in appellant's possession was rightfully owned by Federal Equipment Company and/or by Bowman Industries. Appellant offered no contradictory testimony regarding the ownership of the materials he took from the warehouse site and placed in his truck. Therefore, we find that there was sufficient evidence admitted at trial to support a guilty verdict on the theft charge. Breaking and Entering Conviction *Page 10 {¶ 23} With respect to the charge of breaking and entering, appellant argues that his actions were open and obvious and that he did not act with the purpose to commit theft. R.C. 2911.13 states: "(A) No person by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose to commit therein any theft offense, as defined in section2913.01 of the Revised Code, or any felony." {¶ 24} Appellant argues that the state did not introduce evidence upon which reasonable minds could find that he acted with "force, stealth or deception" to "commit therein any theft offense" when he removed scrap materials from the warehouse site and put them in his truck in the broad daylight. {¶ 25} We do not agree. While it is true that appellant gained access to the warehouse property in broad daylight and without forcing his way through a locked entrance, a jury could reasonably find that he acted with deception. Several witnesses saw appellant enter the property and take materials that did not belong to him. His actions led to the inference that he had consent to be there. Also, he told the security guard that he had permission to take the copper wiring when, in fact, he was unable to produce any witness to confirm this. A jury could reasonably believe that appellant deceived the security guard by saying he had permission to be on the Federal Equipment Company property, particularly in light of the complete lack of evidence to the contrary. {¶ 26} Furthermore, a jury could reasonably believe that appellant entered the Federal Equipment Company property in order to take the copper wiring. Without *Page 11 evidence that appellant had permission to take the scrap materials, we find there was sufficient evidence admitted at trial to support a guilty verdict on the breaking and entering charge. Judgment is hereby affirmed. 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. 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. FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE ANN DYKE, J., and MARY J. BOYLE, J., CONCUR. *Page 1

2016-07-06 06:36:50.998147+00

DECISION AND JUDGMENT ENTRY Chris Kuntz appeals his conviction by the Ross County Court of Common Pleas for possession of marijuana, a violation of R.C. 2925.11. He argues that his conviction is against the manifest weight of the evidence. We disagree because we find, upon a thorough review of the record, that the trial court did not clearly lose its way in resolving conflicts in the evidence. Accordingly, we affirm the judgment of the trial court. I. The grand jury indicted Kuntz with possession of marijuana weighing over two hundred grams but less than one thousand grams, a violation of R.C. 2925.11. Kuntz pled not guilty and eventually waived his right to a jury trial. At the trial to the court, the parties stipulated that Kuntz knowingly obtained, possessed or used marijuana, a schedule one controlled substance, in Ross County. The parties further stipulated that the marijuana present in the courtroom was the same marijuana Kuntz possessed and that the police maintained the chain of custody. Thus, the only element of the offense left for the trial court to determine was the weight of the marijuana. The only witness to testify at the trial was Chillicothe Police Officer Dana Cousins. He testified that he has been the "marijuana tester" for the Chillicothe Police Department and the Ross County Sheriff's Department since 1991. He received training from the Ohio State Patrol Academy and from the London Police Officer's Academy in the identification and weighing of marijuana. He explained, in detail, the extent of this training. Cousins testified that he has qualified as an expert in the analysis and weighing of marijuana well over thirty times. He explained that he analyzes marijuana as a regular part of his duties. Cousins testified that on July 21, 2000, he analyzed and weighed the substance seized from Kuntz. He explained in detail how he concluded the substance was marijuana. Once he made this conclusion, he weighed the marijuana. Cousins testified that he used a digital scale to do so. Once he zeroed the scale, Cousins placed a metal bowl on the scale. The scale indicated that the bowl weighed 128.56 grams. According to Cousins, the scale consistently calculates the weight of the metal bowl, i.e., that it always weighs within one hundredth of a gram of 128.56 grams. Once he weighed the bowl, he zeroed the scale and removed the bowl. Cousins then placed the marijuana in the bowl and put the bowl back onto the scale. The scale indicated that the marijuana seized from Kuntz weighed 207.64 grams. Cousins testified that he concluded that the marijuana indeed weighed 207.64 grams. On cross-examination, Cousins identified the scale he used to weigh the marijuana as the one he brought with him to court. He testified that he had used this scale since 1994. Cousins was unaware of any records kept on the calibration of the scale and, as far as he knew, the scale had never been calibrated. Cousins then attempted to weigh the marijuana in the courtroom, but was unable to do so because of the conditions in the courtroom. The trial court then reconvened court at the Law Enforcement Complex, where, Cousins weighed the marijuana as 193.79 grams. The parties then returned to the courtroom. Cousins again explained that the scale consistently calculated the weight of the bowl within one hundredth of a gram. He testified that the bag used to store the marijuana was sealed but was not airtight enough to prevent desiccation of the marijuana. He testified that the marijuana loses weight as time passes and it continues to dry out. He opined that the marijuana weighed 207.64 grams on July 21, 2000. One week later, the trial court announced its decision. The court found that the relevant weight of the marijuana was its weight at the time of the offense and found Kuntz guilty. The trial court sentenced Kuntz accordingly. Kuntz appeals and assigns the following error: I. The verdict of the trial court was against the manifest weight of the evidence. II. In his only assignment of error, Kuntz argues that his conviction is against the manifest weight of the evidence. He asserts that the questions surrounding the accuracy of the scale call into question the actual weight of the marijuana seized from him. In determining whether a criminal conviction is against the manifest weight of the evidence, we must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial granted. State v. Thompkins (1997), 78 Ohio St. 3d 380, 387, citing State v. Martin (1983), 20 Ohio App. 3d 172, 175. In making such a determination, we sit as a thirteenth juror. Thompkins at 387, citingTibbs v. Florida (1982), 457 U.S. 31, 42. However, "[t]he discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction."Thompkins at 387, quoting Martin at 172. After thoroughly reviewing the record, including the transcripts and exhibits, we cannot conclude that the trial court clearly lost its way and created a manifest miscarriage of justice in resolving conflicts in the evidence. The trial court, as the trier of fact, was in the best position to judge the credibility of Cousins' assertion that the marijuana weighed over two hundred grams in July 2000 and that marijuana loses weight as time passes and it dries out. We note that Kuntz's arguments regarding the accuracy of the scale concern not the admissibility of the evidence, but its relative importance or value. Kuntz did not object to the admissibility of Cousins' testimony concerning the weight of the marijuana in July 2000. That the identical scale weighed the marijuana at issue as over two hundred grams in July 2000 and under two hundred grams in February 2001 certainly calls the reliability and accuracy of the scale into question absent a change in the composition of the marijuana. Cousins' testimony that as time passes the marijuana loses weight due to desiccation is an alternate explanation to the theory that the scale is inaccurate or unreliable. We cannot conclude that the trial court clearly lost its way in resolving this conflict in the evidence. Accordingly, we find that Kuntz' conviction is not against the manifest weight of the evidence, overrule his only assignment of error and affirm the judgment of the trial court. JUDGMENT 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 Ross County Court of Common Pleas 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 continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. The stay as herein continued will terminate in any event at the expiration of the sixty-day period. The stay shall terminate earlier if the appellant fails 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 said 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. Harsha, J. and Abele, P.J. Concur in Judgment and Opinion. _____________________ Roger L. Kline, Judge

2016-07-06 06:36:51.04627+00

OPINION Plaintiff-Appellant, Susan R. Gibson, individually and as administratrix of the Estate of Mike E. Gibson, and also as parent, natural guardian and next friend of Kayla and Samantha Gibson, appeals the judgment of the Paulding County Common Pleas Court directing a verdict in favor of Defendant-Appellee, Drainage Products, Inc. This case arises from an incident that occurred on February 21, 1996, which led to the death of Mike E. Gibson. The defendant is a company that manufactures plastic corrugated drainage pipe, and employed Mike Gibson on a full-time basis from March 1994 until his death. As part of defendant's manufacturing process, plastic chips are fed by a conveyor into an "extruder" that heats the plastic until it becomes malleable, at approximately 500 degrees Fahrenheit. The plastic is then pushed through a "screen changer" that removes impurities, and then through two pipes that force the molten plastic into a die that molds it into a tube shape. At certain intervals the piping is wrapped with heating coils, which are intended to keep the plastic at a consistent temperature as it passes through the machine. The manufacturing line is approximately sixty feet long. In 1994, the Occupational Health and Safety Administration (OSHA) issued a citation to the defendant, relating to the defendant's failure to implement a safety procedure known as a "lockout-tagout" for the plastic tubing manufacturing line. Specifically, this procedure required that when maintenance or repair work was to be performed on the manufacturing line, the person who was performing the work was to shut down the power to the line and place a lock on the power switch to prevent the line from being restarted. The relevant OSHA rules indicated that there should be a written "lockout-tagout" policy and training about that policy to ensure that "before any employee performs any servicing or maintenance on a machine or equipment * * * the machine shall be isolated from the energy source, and rendered inoperative."29 C.F.R. § 1910.147(a)(3)(c)(1). In response to the 1994 OSHA citation, the defendant developed a written "lockout-tagout" policy, but apparently trained only certain supervisory personnel as to its specifics. Other personnel who had not been trained in "lockout-tagout" occasionally performed "minor maintenance" upon the manufacturing line. On February 21, 1996, defendant's employee, Tim Jewell, who was working as an "operator" of a portion of the manufacturing line, noticed that molten plastic appeared to be seeping from around the screen changer. He concluded that the bolts joining the pipe in the rear of the screen changer to the pipe in front of it were loose, but a few of the bolts snapped as he was attempting to tighten them. At this point, Jewell contacted the floor foreman, John Meggit, who decided that the proper course of action was to remove and replace all the bolts holding the two pipes and the screen changer together. Meggitt and Jewell spent twenty-five minutes to an hour removing the broken bolts that held the two pipes and the screen changer together, at which point Meggitt left the work area to find replacement bolts. Before Meggitt left, he instructed Jewell to separate the screen changer from the pipe leading into the die and to scrape the plastic residue from the edges of the changer. The extruder was shut down, and the heaters surrounding the piping closest to the extruder were also shut off. However, the heaters leading into the die were apparently left on. Jewell then disconnected the screen changer from the pipe leading to the die, and began to clean the plastic off, at which point plaintiff's decedent approached Jewell and asked him if he wanted help. Jewell indicated that he did not need Gibson's help. Mike Gibson, was a "mixer" and did not work directly on the line; he worked in a different but nearby area of the plant. However, testimony in the record indicated that it was not uncommon and in fact might have been expected for employees who had completed their assigned tasks to assist other employees. Moreover, employees were both expected and required to talk to a supervisor if they ran out of work to do. Gibson's supervisor was John Meggitt, the employee who had been working on the pipeline and had left the area to obtain new bolts prior to the time that Gibson approached. At approximately the same time as Gibson approached Jewell, maintenance supervisor Randy Bullinger also approached the scene. Shortly thereafter, Bullinger heard a hissing sound, and shouted "duck" or other words to that effect. Tim Jewell testified that he heard a "pop" and a hiss, and knew at that point that molten plastic was about to blow out of one of the open tubes. In fact, plastic did blow out of the pipe connected to the die. Plaintiff's decedent was standing approximately three feet away from the open end of the pipe, and was sprayed directly in the face with molten plastic. He was immediately transported by EMS to the Van Wert County Hospital and subsequently to Parkview Memorial Hospital in Fort Wayne, Indiana. While at the Indiana hospital, Gibson suffered an asthma attack that was allegedly treated in a negligent manner, and he died three days after the initial injury. On January 21, 1997, plaintiff filed this action in the Common Pleas Court of Paulding County, alleging that Haviland Drainage Products, Inc. had committed an intentional tort against Mike Gibson that resulted in his death. Plaintiff also alleged medical malpractice against the Indiana Hospital and the two Indiana doctors who had treated Mr. Gibson. However, the claims against the Indiana defendants were dismissed prior to trial due to lack of personal jurisdiction, and plaintiff filed an amended complaint proceeding solely against defendant Drainage Products, Inc. While defendant, Drainage Products, Inc. and Haviland Products, Inc. are separate but related companies, Mike Gibson was employed by Drainage Products, Inc., and plaintiff's amended complaint reflected this fact. Defendant answered the complaint, discovery commenced, and on October 15, 1997, defendant filed a motion for summary judgment, arguing in part that plaintiff had failed to present sufficient evidence of the defendant's intentional conduct pursuant to the test set forth in Fyffev. Jeno's, Inc. (1991), 59 Ohio St. 3d 115, paragraphs one and two of the syllabus. Plaintiff responded by arguing that it was standard procedure at the plant to work on portions of the line without "powering down" the entire line and that this procedure created an unreasonable danger of spraying hot plastic. Plaintiff also noted that the procedure appeared to be in violation of both the company's own written policy and the OSHA regulations on the "lockout-tagout", and that if the policy regulations had been complied with, Mike Gibson's injuries and his eventual death would not have occurred. On April 27, 1998, the trial court issued a judgment entry overruling the defendant's motion without setting forth any specific reasons for the decision. The case proceeded to trial on October 25, 1999. At the close of Plaintiff's case, the defendant moved for a directed verdict pursuant to Civ.R. 50, again arguing that the plaintiff failed to present sufficient evidence of an intentional tort by the employer under the standard set forth in Fyffe. Although it had previously denied summary judgment on this same ground, the trial court determined that a directed verdict should be granted. This timely appeal followed wherein the plaintiff asserts three assignments of error for our review. Assignment of Error I The trial court erred in directing a verdict for defendant at the close of plaintiff's case as plaintiffs did prove a prima facie case of an employer intentional tort. Plaintiff's first assignment of error asserts that the trial court improperly granted a directed verdict because her prima facie case contained evidence sufficient to establish that defendant acted intentionally under the test defined by the Ohio Supreme Court in Fyffev. Jeno's, Inc. (1991), 59 Ohio St. 3d 115 : [I]n order to establish "intent" for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task. Fyffe, 59 Ohio St. 3d 115, at paragraph one of the syllabus. The trial court granted a directed verdict based upon its conclusion that the plaintiff "failed to establish that prior to plaintiff's decedent's injury, the defendant knew of the existence of a dangerous process, procedure, equipment, or condition within its facility that was substantially certain to cause harm to plaintiff's decedent or any other employee." Civ.R. 50(A)(4) provides the standard for a decision on a motion for directed verdict as follows: When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. When addressing a motion for directed verdict, the trial court must neither consider the weight of the evidence nor the credibility of the witnesses. "A motion for directed verdict * * * does not present factual issues, but a question of law, even though in deciding such a motion, it is necessary to review and consider the evidence." O'Day v. Webb (1972),29 Ohio St. 2d 215, paragraph three of the syllabus. "The `reasonable minds' test of Civ.R.50(A)(4) calls upon the court only to determine whether there exists any evidence of substantial probative value in support of [the non-moving party]." Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St. 2d 66, 68-69. Moreover, since a directed verdict presents a question of law, appellate courts are to review a trial court's judgment on a de novo basis. See, e.g., Nichols v. Hanzel (1996),110 Ohio App. 3d 591, 599. Because we find it to be dispositive, we have chosen to focus our attention on the third prong of the Fyffe test. As previously noted, pursuant to the final element of the Fyffe test, the employee must demonstrate "that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task." Fyffe, 59 Ohio St. 3d 115, at paragraph three of the syllabus. We recognize that an express order from the employer is not the only method by which an opposing party can satisfy the third prong of the Fyffe test. Hannah v. Dayton Power Light (1998), 82 Ohio St. 3d 482,487. Rather, this element can be satisfied "by presenting evidence that raises an inference that the employer, through its actions and policies, required the decedent to engage in that dangerous task." Id. It is undisputed that Mike Gibson was never expressly directed to assist in the repair of the extruder pipe. And, based upon the evidence presented in this case, we find that Appellant has failed to raise even the inference of such a requirement. First, there is no evidence from which the jury could have inferred that the defendant required plaintiff's decedent to be in the area to offer assistance with the problem. Even though various witnesses testified that employees were expected to assist each other in performing various tasks, the evidence shows that upon Gibson's approach, Jewell stated that he had the situation under control and did not need any help. Notwithstanding, the record indicates that Gibson remained standing in the area, apparently merely observing the repairs, for approximately two to five minutes before the accident occurred. Similarly, although the evidence also suggests that Gibson would have been required to ask his immediate supervisor for another assignment in the event that he ran out of work at his own station, it is undisputed that John Meggitt, Gibson's supervisor, was not working on the line nor was he in the immediate area at the time of plaintiff's decedent's approach. There is no evidence that Gibson even asked for Meggitt or that he was waiting for Meggitt to return during those few moments that he remained in the area after Tim Jewell informed him that the situation was under control. Consequently, there is no evidence from which the jury could have inferred that Gibson was in the area in an attempt to find his supervisor to ask for more work. Additionally, we note that this Court has previously found that in order to satisfy the third prong of the Fyffe test, the injured employee must have been compelled, as a condition of employment, to participate in the dangerous task. See, e.g. Myers v. Oberlin Processing, Inc. (Sept. 27, 1996), Seneca App. No. 13-96-20, unreported, appeal not allowed by77 Ohio St. 3d 1547; Paxton v. Hench (July 22, 1992), Allen App. No. 1-92-36, unreported, jurisdictional motion overruled by 66 Ohio St. 3d 1410. In this case, Plaintiff has merely shown that the decedent's employer expected him to inquire about and perform any number of unspecified and varied duties at times when his own tasks had been completed. This general expectation is not tantamount to a requirement that Mike Gibson specifically assist in the repair of a manufacturing line without the power to the entire line having been first shut down. While we certainly are not unaware of the tragic results of this accident, we find that reasonable minds could only conclude that Plaintiff's decedent placed himself at the point of danger by choice and not as a requirement of employment. Based upon the foregoing, we find the trial court's decision to grant the defendant's motion for directed verdict, albeit for different reasons than those addressed herein, was appropriate. Consequently, Plaintiff's first assignment of error is not well-taken and is overruled. Assignment of Error II The trial court erred in ruling it was admitting evidence of the surviving spouse cohabitating with another after decedent's death. Assignment of Error III The trial court erred in permitting defense counsel to adduce and argue that since OSHA cited the violations as serious, not willful, no employer intentional tort claim existed. Given our disposition of the first assignment of error, specifically on the third prong of the Fyffe test, we find these remaining evidentiary arguments to have been rendered moot. Having found no error prejudicial to the Appellant herein, in the particulars assigned and argued, the judgment of the trial court is affirmed. Judgment affirmed. HADLEY, J., concurs. SHAW, J., dissenting.

2016-07-06 06:36:51.511464+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM DECISIONS (87CR-2770) Motion for leave to file delayed appeal (Judge Pfeiffer) denied.

2016-07-06 06:36:51.230286+00

JOURNAL ENTRY AND OPINION {¶ 1} This is an appeal from an order of Judge Nancy R. McDonnell that found appellee Nicholas Brozovic to be an insured and entitled to uninsured/underinsured motorist ("UMI") coverage under a commercial automobile insurance policy issued by appellant Transcontinental Insurance Company ("Transcontinental") to his mother's employer. Transcontinental claims it was error to find, under Scott-Pontzer v.Liberty Mut. Fire Ins. Co.1 and Ezawa v. Yasuda Fire MarineIns. Co. of Am.,2 that Brozovic was an insured. We reverse and remand. {¶ 2} On May 12, 1998, Brozovic, a passenger, was severely injured in an accident caused by his driver and received $100,000, the limit of liability coverage under the driver's comprehensive automobile insurance policy. On March 14, 2000, he filed a complaint for declaratory judgment seeking underinsured motorist coverage ("UMI") under a commercial automobile policy issued by St. Paul Fire Marine Insurance Company ("St. Paul") to his father's employer. He later amended the complaint to include CNA Insurance Company3 ("CNA") and American Alternative Insurance Corporation ("American"), which had issued a commercial automobile insurance policy and an umbrella/excess liability policy, respectively, to United Way Services, his mother's employer. Brozovic settled his claims against St. Paul and, because his stipulated damages did not exceed the UMI coverage limits of the CNA policy, he dismissed American, leaving Transcontinental the only defendant. {¶ 3} Under the CNA policy, "United Way Services, ETAL" is the named insured and many affiliated groups and organizations are listed as named insureds on separate endorsements. An endorsement titled "Drive Other Car Coverage — Broadened Coverage for Named Individuals" identifies six persons who are additional policy "insureds." The endorsement states, inter alia: {¶ 4} "C. Changes in auto medical payments and uninsured andunderinsured motorists coverages {¶ 5} "The following is added to WHO IS AN INSURED: {¶ 6} "Any individual named in the Schedule and his or her `family members' are `insured' while `occupying' or while a pedestrian when being struck by any `auto' you don't own except: {¶ 7} "Any `auto' owned by that individual or by any `family member.'" {¶ 8} The main body of the policy sets forth the terms for "Liability Coverage" and "Physical Damage Coverage," and includes a section titled "Business Auto Conditions," which states, inter alia: {¶ 9} "The following conditions apply in addition to the Common Policy Conditions: {¶ 10} "A. LOSS CONDITIONS {¶ 11} "* * * {¶ 12} "2. DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT OR LOSS {¶ 13} "a. In the event of `accident,' claim, `suit' or `loss,' you must give us or our authorized representative prompt notice of the `accident' or `loss.' {¶ 14} "* * * {¶ 15} "3. LEGAL ACTION AGAINST US {¶ 16} "No one may bring a legal action against us under this coverage form until: {¶ 17} "a. There has been full compliance with all the terms of this Coverage Form; {¶ 18} "* * * {¶ 19} "5. TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US {¶ 20} "If any person or organization to or for whom we make payment under this Coverage Form has rights to recover damages from another, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after `accident' or `loss' to impair them." {¶ 21} The "Coverage Form" itself does not refer to UMI coverage, which is provided by a separate endorsement and states, inter alia: {¶ 22} "A. COVERAGE {¶ 23} "1. We will pay all sums the `insured' is legally entitled to recover as compensatory damages from the owner or driver of an `uninsured motor vehicle' because of `bodily injury' sustained by the `insured' caused by an `accident.' The owner's or driver's liability for these damages must result from the ownership, maintenance or use of the `uninsured motor vehicle.' {¶ 24} "2. We will pay under this coverage only if a. or b. below applies: {¶ 25} "a. The limits of any applicable liability bonds or policies have been exhausted by judgments or payments; {¶ 26} "* * * {¶ 27} "B. WHO IS AN INSURED {¶ 28} "1. You. {¶ 29} "2. If you are an individual, any `family member.' {¶ 30} "* * * {¶ 31} "C. EXCLUSIONS {¶ 32} "This insurance does not apply to: {¶ 33} "1. Any claim settled without our consent. However, this exclusion does not apply to a settlement made with the insurer of a vehicle described [as underinsured]." {¶ 34} Each party moved for summary judgment concerning coverage under the policy, and the judge found Brozovic was entitled to claim UMI benefits. {¶ 35} Transcontinental asserts one assignment of error: {¶ 36} "I. The Trial Court Erred in Granting The Plaintiff-appellee's Motion For Summary Judgment And Denying Defendant-appellant's Motion For Summary Judgment." {¶ 37} We review the grant of summary judgment de novo, using the same standard as the trial judge.4 The interpretation of unambiguous written contract terms is a matter of law that we review de novo.5 Where ambiguity is found in an insurance contract the contract term is construed against the insurance company as drafter of the language.6 {¶ 38} In Scott-Pontzer, supra, the Ohio Supreme Court ruled that, where the named insured on the declarations page was a corporation, its employees were reasonably included as insured parties because the corporate entity could act only through actual persons.7 Because of the ambiguity the Court held that the insurance policy extended UMI coverage to the company's employees, and Ezawa extended the principle to the employees' "family members."8 Although the UMI endorsement here uses the same language as that in Scott-Pontzer, Transcontinental argues that it cured the ambiguity by issuing the "Drive Other Car Coverage" endorsement, which added specific individuals as insureds and, therefore, limited the UMI endorsement's definition of an insured to only those individuals. We disagree. {¶ 39} In Burkhart v. CNA Ins. Co.,9 the Stark County Court of Appeals ruled that a declarations page naming specific individuals did not cure the ambiguity addressed in Scott-Pontzer because the definition of insured was still ambiguous with respect to the named corporate entity.10 This ruling was followed by the Lucas County Court of Appeals in Kasson v. Goodman,11 which agreed that the ambiguity with respect to the corporation continued because its inclusion as a named insured would be "superfluous" if coverage were limited only to the specifically named individuals. {¶ 40} In contrast, Transcontinental argues that a reference to a specific individual on a declarations page or subsequent endorsement is sufficient to remove the Scott-Pontzer ambiguity, citing the Henry County Court of Appeals' decision in Reinbolt v. Gloor.12 Reinbolt, however, is distinguishable because it involved a policy issued to a sole proprietor rather than a corporation.13 Moreover, even if the principle asserted in Reinbolt does compete with the reasoning inBurkhart, the endorsement's language does not remove the ambiguity in this policy because the endorsement itself purports to be an addition to the definition, and not a limitation. We agree that the endorsement cannot remove the ambiguity concerning who is an insured when it purports to add to, rather than limit or substitute for, the definition. {¶ 41} "In the construction of insurance contracts, `[w]here exceptions, qualifications or exemptions are introduced into an insurance contract, a general presumption arises to the effect that that which is not clearly excluded from the operation of such contract is included in the operation thereof.'"14 {¶ 42} Nothing in the endorsement's language specifically addresses, limits, or removes the definition of "insured" adopted inScott-Pontzer. We agree with the decisions in Burkhart and Kasson that ambiguity is not removed where an endorsement adds insured parties without addressing, removing or amending the original ambiguous language. Transcontinental's first argument is unavailing. {¶ 43} Transcontinental's second argument for reversal claims that Brozovic was required to give the insurer "prompt notice" of the accident in order to allow it to preserve its subrogation rights. Brozovic counters that the policy is ambiguous with respect to notice because the UMI endorsement does not require the insurer's consent before settling a claim with an underinsured motorist. However, the endorsement does require that a person seeking underinsured motorist coverage must notify the insurer of a tentative settlement with the underinsured motorist's insurer "and allow us 30 days to advance payment * * * in an amount equal to the tentative settlement to preserve our rights against the insurer, owner or operator of such vehicle[.]" {¶ 44} The general subrogation clause is insufficient to undermine the specific provisions in the UMI endorsement that allow settlement without consent because, in addition to the construction of ambiguity in favor of the insured, specific provisions control over general provisions.15 The general subrogation clause purports to forbid any action that impairs the insurer's subrogation rights, yet the specific UMI provisions allowing settlement without consent necessarily allow impairment of those rights in specific circumstances and provide a specific exception to the general clause. {¶ 45} Nevertheless, we agree with the analysis in Green v. TheCincinnati Ins. Co.,16 in which the Huron County Court of Appeals agreed that the lack of a consent requirement when settling with an underinsured motorist normally would mandate coverage, but the policy in that case contained a provision that required notice of a tentative settlement and opportunity to advance funds specifically in underinsuredmotorist cases, even though consent was not required. The court found the specific reference to underinsured motorists distinguishable from the provision in Howard v. State Auto Mut. Ins. Co.,17 and denied UMI coverage based on the failure to allow the insurer an opportunity to retain subrogation rights against the underinsured motorist. {¶ 46} Because the policy here contains the same provision as that found in Green, Brozovic's failure to provide notice of the settlement deprived Transcontinental of its subrogation rights in violation of the policy. However, even though an insured's breach of subrogation provisions is presumed prejudicial and, therefore, material, the presumption is not conclusive and an insured may present evidence rebutting the presumption that the insurer was prejudiced.18 Therefore, even though we must reverse the grant of summary judgment based on the breach of the subrogation provision, Transcontinental is not entitled to judgment as a matter of law because Brozovic has not had an opportunity, pursuant toFerrando, to show a lack of prejudice. The assignment of error is sustained with respect to the grant of summary judgment to Brozovic, but overruled with respect to the denial of Transcontinental's motion for summary judgment. {¶ 47} The judgment is reversed and remanded for further proceedings. It is ordered that each party shall bear their own costs herein taxed. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE, A.J. AND JAMES J. SWEENEY, J., CONCUR. 1 85 Ohio St.3d 660, 1999-Ohio-292, 710 N.E.2d 1116. 2 86 Ohio St.3d 557, 1999-Ohio-124, 715 N.E.2d 1142. 3 Transcontinental was later substituted for CNA. 4 Civ.R. 56(C); Druso v. Bank One of Columbus (1997),124 Ohio App.3d 125, 130-131, 705 N.E.2d 717. 5 Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107,108, 1995-Ohio-214, 652 N.E.2d 684. 6 Scott-Pontzer, 85 Ohio St.3d at 664-665. 7 Id. 8 Ezawa, supra, reversing Ezawa v. Yasuda Fire Marine Ins.Co. of Am. (June 30, 1998), Franklin App. No. 97APE10-1343. 9 Stark App. No. 2001CA00265, 2002-Ohio-903. 10 Id. at ¶ 16. 11 Lucas App. No. L-01-1432, 2002-Ohio-3022, at ¶ 28-33. 12 146 Ohio App.3d 661, 2001-Ohio-2224, 767 N.E.2d 1197. 13 Id. at 667-668, 2001-Ohio-2224, at ¶ 19-30; see, also,Herschell v. Rudolph, Lake App. No. 2001-L-069, 2002-Ohio-1688, at ¶ 28. 14 King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 214,519 N.E.2d 1380, citation omitted. 15 Monsler v. Cincinnati Cas. Co. (1991), 74 Ohio St.3d 321,330, 598 N.E.2d 1203. 16 (Dec. 7, 2001), Huron App. No. H-01-018. 17 (Mar. 14, 2000), Franklin App. No. 99AP-577. 18 Ferrando v. Auto-Owners Mut. Ins. Co., ___ Ohio St.3d ____, 2002-Ohio-7217, ___ N.E.2d ___, paragraphs one and two of the syllabus;Ruby v. Midwestern Indemn. Co. (1988), 40 Ohio St.3d 159, 161,532 N.E.2d 730.

2016-07-06 06:36:51.429674+00

OPINION {¶ 1} Appellant, Rebecca Arp, appeals from a final judgment of the Geauga County Court of Common Pleas granting appellee, Geauga County Board of Mental Retardation and Developmental Disabilities ("the Board"), summary judgment. For the reasons that follow, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion. {¶ 2} On or about October 21, 1999, appellant, Rebecca Arp, entered the Geauga County Board of Mental Retardation and Developmental Disabilities' Human Resources office to submit a complaint she had with her supervisor, Richard Klepper. On the previous day, appellant approached Klepper with a request for sick leave in order to treat poison ivy. In response to appellant's request, Klepper queried whether, in spite of her condition, appellant could still "make out" with her husband. Upset by this remark, appellant went home and investigated the procedure for leveling a complaint for sexual harassment. Appellant's New Employee Handbook directed her to contact the superintendent or the human resources department. {¶ 3} The next day, appellant contacted Human Resources office and was connected to the director supervisor of Human Resources, Assistant Superintendent Carol Brill. During her meeting with Brill, appellant detailed her most recent episode with Klepper. Appellant also communicated how Klepper had continuously harassed her with sexually oriented comments and gestures from 1998 through the time of her complaint, October of 1999.1 In short, appellant told Brill that her work environment had become intolerable and she wanted Klepper's harassment to stop. {¶ 4} After appellant conveyed her concerns, Brill offered her several options: (1) Filing a formal complaint which would include an investigation by the appropriate authorities; (2) ignore the situation and pretend that it never happened; or (3) the matter could be addressed internally in an effort to arrest the problem without outside publicity. The meeting concluded with an understanding that appellant would consider her options overnight and return the following day for further discussion. {¶ 5} On the following day, appellant told Brill that she did not want to make her situation a public issue. In lieu of a formal complaint, appellant asked Brill to speak directly to Klepper to ensure that the behavior would stop. On October 25, 1999, Brill called Klepper into her office to discuss workplace harassment. Brill spoke directly regarding the details of appellant's complaint. Although Klepper denied the allegations, Brill informed him that his perceptions regarding his actions were not important so long as others perceived his actions to be inappropriate. Brill asked Klepper if it was worth his career, reputation, and position in the community to ignore the present warning. At the conclusion of the meeting, Klepper agreed to avoid appellant with the exception of work related necessities. Soon after the meeting, Brill informed appellant that she had spoke with Klepper and said she had been very specific regarding the appellant's allegations. Brill told appellant to inform her if she had any additional problems with Klepper. {¶ 6} Following Brill's conversation with Klepper, appellant's work environment improved. Between October, 1999 and May, 2000, Brill contacted appellant approximately three times inquiring into her work environment. Each time, appellant indicated that her working conditions were improved and there had been no further episodes of harassment. {¶ 7} On May 25, 2000, Klepper approached a group of employees of which appellant was a part and began discussing a recent conference he attended. According to appellant, Klepper was bemoaning the conference because people were continuously getting out of their seats and leaving. However, Klepper then looked at appellant and declared that he could tell who was "feeling ill and he could tell whose time of the month it was." {¶ 8} Appellant stated that this comment made her physically ill so she retreated to the bathroom where she vomited. Appellant then went directly to Brill's office and announced she was "fed up" and "couldn't take it anymore." Brill called Superintendent Dan Larrick who listened to appellant's account of the details. All parties agreed that filing a formal complaint was appropriate. Larrick then provided appellant with a grievance form and asked her to return it as soon as possible along with any documentation of her harassment. {¶ 9} Brill contacted the county prosecutor's office regarding the procedure for moving forward with the complaint. The prosecutor directed Brill to immediately conduct an investigation. Based on a concern that the Board's administrative staff would not be able to conduct an impartial investigation, Brill contacted the offices of Geauga County to identify someone outside the agency to conduct a complete investigation. Assistant County Administrator John Zacharia was designated the principal investigator. {¶ 10} Over the next month, Zacharia interviewed appellant, Klepper, other women identified by appellant as having similar experiences with Klepper, and other individuals with relevant information. After the interviews, Zachariah issued a final report to the Board which stated his view that Klepper had engaged in conduct that amounted to sexual harassment and that the Board did not have a clearly articulated anti-sexual harassment policy. {¶ 11} On August 7, 2000, Klepper was advised that the Board would hold a pre-disciplinary conference regarding the complaint allegations. On August 16, 2000, a pre-disciplinary conference was held. On August 29, 2000, the Board notified Klepper that his employment would be terminated on the following day. Klepper requested a formal hearing and ultimately, in settlement of the parties' differences, Klepper was allowed to retire. {¶ 12} On February 16, 2001, appellant filed her complaint against Klepper, the Board, and the Geauga County Commissioners alleging sexual harassment, hostile work environment, and retaliation and negligent retention of a supervisor. On December 28, 2001, the Board filed its motion for summary judgment and on December 31, 2001, Klepper filed his motion for summary judgment. Both motions were opposed by appellant. On April 26, 2002, appellant voluntarily dismissed her claims against the Geauga County Commissioners and the dismissal was entered on May 2, 2002. On August 27, 2002, the trial court denied Klepper's motion for summary judgment and granted the Board's motion for summary judgment. {¶ 13} From this decision, appellant filed a timely notice of appeal with this court. She now asserts the following assignments of error: {¶ 14} "[1.] The trial court erred to the prejudice of appellant by granting the board's motion for summary judgment on the ground that appellant did not suffer any tangible employment action as a result of Klepper's harassment. {¶ 15} "[2.] The trial court erred to the prejudice of appellant by granting the Board's motion for summary judgment on the ground that the board had established the Farragher/Ellerth affirmative defense. {¶ 16} "[3.] The trial court erred to the prejudice of appellant by granting the Board's motion for summary judgment without addressing the merits of appellant's fourth cause of action-negligent retention of a supervisor." {¶ 17} At the outset, it is useful to delineate the nature of the legal issue under consideration: Appellant seeks recovery against her employer based upon her claim of sexual harassment by her supervisor, Richard Klepper. In Faragher v. City of Boca Raton (1998), 524 U.S. 775, the United States Supreme Court established a standard of liability in response to allegations of sexual harassment involving a supervisory employee. The Court indicated: {¶ 18} "An employer is subject to vicarious liability to a victimized employee for an actionable hostile work environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages ***."Id. at 807. {¶ 19} In the absence of a tangible employment action, the affirmative defense available to employers for acts of sexual harassment committed by a supervisor comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Id. 807. In sum, if the harassment is accompanied by a tangible employment action, liability attaches automatically and no defense is available to the defendant employer. However, if the harassment is not accompanied by a tangible employment action, the employer may escape liability by proving the aforementioned affirmative defense. {¶ 20} In her first assignment of error, appellant claims the lower court erred in granting the Board's motion for summary judgment because she suffered a tangible employment action as a consequence of Klepper's failure to conduct a performance evaluation. Specifically, appellant argues Klepper's failure to evaluate her job performance in accordance with the terms and conditions of her employment contract effected a tangible employment action. We agree. {¶ 21} In reviewing an award of summary judgment, we apply a de novo standard of review. Village of Grafton v. Ohio Edison Co. (1996),77 Ohio St.3d 102, 105. As such, summary judgment is appropriate when: (1) there is no genuine issue as to any material fact; (2) the nonmoving 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 non-moving party, who is entitled to have the evidence construed most strongly in her favor. Zivich v. Mentor Soccer Club (1998),82 Ohio St.3d 367, 369-370. {¶ 22} The party seeking summary judgment on the ground that the nonmoving party cannot prove its case bears the initial burden of informing the trial court of the basis for the motion and 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. Hunter v. Interpak, Inc., 11th Dist. No. 2001-L-198, 2002 Ohio 7149, at ¶ 9, citing, Dresher v. Burt (1993),75 Ohio St.3d 280, 293. 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 the nonmoving party has no evidence to support the nonmoving party's claim. Id. {¶ 23} If the moving party fails to satisfy this initial burden, summary judgment should be denied. Id. However, 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. {¶ 24} "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits." Burlington Industries v.Ellerth (1998), 524 U.S. 742, 761. {¶ 25} "Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control. Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act." Id. at 762. {¶ 26} Insofar as performance evaluations were required by appellant's collective bargaining agreement, she maintains Klepper's failure to conduct the evaluations was a tangible employment action. {¶ 27} Appellant cites Wilburn v. Fleet Financial Group, Inc. (D.Conn. 2001), 170 F. Supp.2d 219 in support of her position. InWilburn, the court held that the failure to evaluate does not, in and of itself, constitute a tangible employment action. Rather, where there is no evidence from which a reasonable jury could conclude that Klepper's failure to evaluate appellant's performance was related to the pattern of sexual harassment such that the harassment could reasonably be said to have "culminated" in the refusal to evaluate, there is no tangible employment action. Id. at 228. {¶ 28} In the current case, appellant asked Klepper to conduct a performance evaluation so that a record of her performance would be included in her personnel file. To this request, Klepper responded: "You haven't done anything for me to evaluate you on. I haven't seen you on your knees." Moreover, according to Brill's testimony, performance evaluations were a requirement of her employment pursuant to her collective bargaining agreement. Brill further indicated that a positive performance evaluation is a springboard for raises and/or promotions. {¶ 29} With respect to the interrelationship of sexual harassment and performance evaluations Brill testified: "My understanding of sexual harassment has to do with if you don't perform in a certain way, your performance evaluation, your opportunity for promotion or raise is infringed ***. If you don't respond to a person's gesture in the way the person would like you to respond, then it would result in a lower performance review or loss of pay or status or promotional opportunities." As indicated above, Klepper never conducted appellant's performance evaluation and, as such, appellant's opportunity for promotion was ostensibly encumbered. {¶ 30} In sum, testimony established that Klepper refused to conduct appellant's performance evaluations because he "[had not] seen [appellant] on her knees yet." In light of this testimony, there is a genuine issue of material fact as to whether Klepper's harassment reasonably culminated in a refusal to evaluate. Wilburn, supra, at 228. Moreover, performance evaluations were required by appellant's collective bargaining agreement. As such, Klepper's failure to conduct appellant's evaluation may have infringed upon appellant's opportunity for a promotion. Therefore, when viewed in a light most favorable to appellant, there are genuine issues of material fact as to whether Klepper's failure to conduct a performance evaluation was a tangible employment action. Thus, appellant's first assignment of error has merit. {¶ 31} In her second assignment of error appellant argues that even if she suffered no tangible employment action, the Board failed to meet the required elements of the Ellerth/Faragher affirmative defense. In particular, appellant argues that the Board did not have a reasonable policy in place to prevent and correct sexual harassment. {¶ 32} In concluding that the Board did not have a reasonable sexual harassment policy in place, appellant relies on the findings of an investigative report conducted by Assistant County Administrator John K. Zachariah. Zachariah's report was initiated on or about June 23, 2000, subsequent to Appellant's final complaint regarding Klepper's behavior. In his report, Zachariah stated that the Board did not have a "clearly articulated anti-sexual harassment policy and procedure." Zachariah further noted that "there has been no staff training in anti-sexual harassment." {¶ 33} In response, the Board maintains that it did have a clear "Anti-Harassment Policy" published in its Policy Manual and summarized in its New Employee Handbook. In particular, at the inception of employment, each new employee is given a New Employee Handbook. Although new employees are not provided with a copy of the Board's Policy Manual, they are apparently instructed to familiarize themselves with the policies contained therein. Moreover, the Board points out appellant's admission that she "looked at [the policy] previously, so I basically was aware of what I needed to do." From these facts, the Board asserts that it had a policy in place and it was "reasonable" {¶ 34} Under the circumstances, it appears that the Board did have a policy prohibiting sexual harassment. It is also evident that, at the very least, an outline of that policy was disseminated via the New Employee Handbook to each new employee upon commencement of his or her duties. However, it is equally clear that a detailed exposition of this policy did not accompany the circulation of the New Employee Handbook. In fact, Assistant Superintendent Brill indicated that the Board's anti-harassment policy was expressly defined within the Board's policy manual but the Board did not have a practice of providing copies of all Board policies to every employee. Further, Brill testified that the harassment policy did not contain a reference to a complaint form. Instead, it details a procedure whereby an employee with a complaint must report to the human resources manager, the superintendent, or the Board president. {¶ 35} As the Board notes, dissemination of "an effective anti-harassment policy provides compelling proof" that the employer has exercised reasonable care to prevent and correct sexual harassment.Lissau v. Southern Food Serv., Inc., (C.A.4, 1998), 159 F.3d 177, 182. The question therefore becomes whether the extant policy discussed above is "effective." Although appellant verbalized her "awareness" of the policy and procedure, a genuine factual issue must be resolved as to whether this awareness can be viewed as adequate evidence of the policy's efficacy. It is our position that appellant's disclosure of her awareness of the policy does not necessarily imply that the policy, as it was written and circulated, was effectively drafted or implemented. This conclusion is bolstered by both Assistant Superintendent Brill's recognition that the Board did not have a clearly articulated anti-sexual harassment policy and procedure in place during October, 1999 or May, 2000. In essence, Brill's conclusion corresponds to the conclusion of the Zachariah report. As such, when the evidence is viewed most strongly in appellant's favor, there is an issue of material fact as to whether the policy was effective. {¶ 36} However, the Board suggests that even if its policy does not provide sufficient evidence of its reasonable care, its response to appellant's complaints were adequate because they were "reasonably calculated to end the harassment." Hodoh-Drummond v. Summit Cty. (N.D.Ohio. 2000), 84 F. Supp.2d 874, 881. To this end, the Board observes that, after appellant made her initial complaint it provided her with two options by which she could pursue the problem, viz, she could file a formal complaint or the Board could address the problem internally. Appellant voluntarily chose to have the matter addressed internally. Once appellant made this decision, Brill called Klepper into her office where she exhorted him to avoid contact with appellant. Brill indicated in her deposition that Klepper acknowledged her admonitions and agreed to avoid appellant. After this meeting, the Board placed Klepper back into his supervisory role in the same building and same office as appellant. The Board further points out that, subsequent to this meeting, appellant's working conditions improved and, for some seven months, she experienced no problems with Klepper. Thus, the Board maintains that it exercised reasonable care to prevent or promptly correct any sexually harassing behavior. {¶ 37} Were these the only facts on which this court had to rule, we would agree that the Board did exercise reasonable care in the manner it handled appellant's complaints. However, certain facts revealed in the depositions of appellant and Ms. Brill militate against this conclusion. Specifically, in her deposition, appellant listed six people (i.e., Kathy Abrahamson, Terry Sheridan, Cindy Brown, Carey Kleinschmidt, Keth Werbeach, and Dan Harsyn) within the Boards employ who alerted her to Klepper's reputation for harassing behavior. Further, Brill testified that prior to October, 1999, she had heard, albeit not firsthand, that Klepper had previously engaged in some similar form of unseemly behavior. Brill also indicated that Beth Kimbell, another Board employee, had come to her in either October, 1999, or May, 2000, and disclosed that Klepper had touched her inappropriately (namely, Kimball was forced to touch Klepper's genitals). These facts create a genuine issue of material fact especially when viewed in appellant's favor. The Board's action of placing Klepper back into the same working environment as appellant was arguably not an exercise of reasonable care or an example of an effective policy. {¶ 38} Further, although appellant was given two options on how to proceed with her complaint, there is absolutely no evidence as to whether an opportunity to make a lateral transfer into a different office under a different supervisor was either a viable or an available option. {¶ 39} Moreover, because other employees (including some ostensible management) were aware of Mr. Klepper's reputation for inappropriate behavior, the nature and extent of their knowledge is material to a determination of whether the Board had either actual or constructive prior knowledge of said reputation. See BreMiller v.Cleveland Psychiatric Inst. (N.D.Ohio. 2000), 195 F.R.D. 1 (stating "[a]n employer may be charged with knowledge when an employee*** complain[s] to management, or when the sexual harassment is pervasive, which gives rise to an inference of knowledge or constructive knowledge." Id. at 28). In the current matter, evidence that six other Board employees were aware of Klepper's reputation for harassment, such may be sufficiently pervasive to create a material issue of fact regarding whether the Board had knowledge or constructive knowledge of Klepper's reputation. {¶ 40} Similarly, it is possible that Brill was aware of Klepper's inappropriate behavior before she obtained her position as assistant superintendent. If evidence to this effect were demonstrated, Brill's knowledge of past harassment, combined with her decision to keep appellant under Klepper's supervision could provide a material dispute of fact. That is, under traditional agency principles, Brill's awareness of past harassment could be imputed to the Board insofar as she occupied a managerial position. Thus, placing appellant back into the same office with Mr. Klepper with such knowledge would not likely be an exercise of reasonable care. Moreover, if facts were established that Beth Kimball told Ms. Brill of her episode with Klepper in October of 1999, the Board could be charged with actual notice of Klepper's misbehavior early enough to prevent the May, 2000, episode. {¶ 41} We must emphasize our position is not that the Board's actions were categorically unreasonable. However, "[s]ummary judgment is a procedural device to terminate litigation*** it must be awarded cautiously with any doubts resolved in favor of the nonmoving party."Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359. Consequently, we find that there is an issue of material fact as to whether the Board necessarily exercised reasonable care under the circumstances. Therefore, the Board is not entitled to summary judgment. Hence, appellant's second assignment of error has merit. {¶ 42} Insofar as the Board has failed to demonstrate that there is no issue of material fact whether it exercised reasonable care to prevent and correct promptly any harassing behavior, it has not met the first prong of the Ellerth/Faragher affirmative defense. The affirmative defense requires proof of two conjunctive elements. Therefore, it is unnecessary to address the second prong. {¶ 43} In her third assignment of error, appellant argues that the trial court erred by granting summary judgment without addressing the merits of her claim for negligent retention of a supervisor. In support of her position, appellant directs our attention to a memo sent by Superintendent Larrick to John Zachariah indicating Larrick was aware of Klepper's harassing behavior as early as 1997. The Board asserts that this memo is incompetent insofar as it was not sworn, certified, or authenticated by affidavit. See Civ.R. 56(E). {¶ 44} In response to the Board's claim that the memo is incompetent, appellant notes that Civ.R. 56(C) permits the use of depositions to demonstrate the existence of a genuine issue of material fact. Insofar as the Zachariah report, with the Larrick Memo attached, was identified as Plaintiff's Exhibit 4 to the Brill deposition, it may be utilized to oppose the Board's summary judgment. Hence, the Board's argument regarding the incompetence of the Zachariah report and the Larrick Memo is not well taken. Furthermore, because we review the grant of summary judgment de novo, we shall explore whether appellant has any other foundations for her claim of negligent retention. {¶ 45} The elements of a claim for relief for negligent hiring or negligent retention are: (1) The existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing the plaintiff's injuries; and (5) the employer's negligence in hiring or retaining the employee as the proximate cause of plaintiff's injuries. Peterson v. Buckeye Steel Casings (1999),133 Ohio App.3d 715, 729; see also, Ruta v. Breckenridge-Remy, Co., (1982), 69 Ohio St.2d 66, 69. In our view, appellant has alleged sufficient facts to support each element. {¶ 46} In Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486, the Supreme Court of Ohio explained: {¶ 47} "An employer has a duty to provide its employees with a safe work environment and, thus, may be independently liable for failing to take corrective action against an employee who poses a threat of harm to fellow employees***. [W]here an employer knows or has reason to know that one of his employees is sexually harassing other employees, he may not sit idly by and do nothing." Id. at 493. {¶ 48} As we stated above, the deposition testimony of appellant indicates that six other employees were aware of Klepper's reputation for behaving inappropriately. Moreover, Brill admitted that she was aware of Klepper's unsavory conduct prior to October of 1999. There was evidence that six individuals under the Board's employ had some awareness of Klepper's reputation, suggesting that the sexual harassment was pervasive. Thus there was a material issue of fact as to whether there was actual or constructive knowledge on behalf of the Board. Furthermore, Brill's position as assistant superintendent placed her in a position of management. That said, there are several genuine issues of material fact to be resolved with respect to the elements of appellant's claim for negligent retention. Therefore, the trial court did err in awarding summary judgment without addressing the merits of appellant's claim. {¶ 49} In sum, because of the presence of material issues of fact with respect to negligent retention summary judgment was inappropriate. Therefore, we must sustain appellant's third assignment of error. {¶ 50} Thus, because appellant's first, second, and third assignments of error have merit, it is the judgment and order of this court that the judgment of the Trumbull County Court of Common Pleas, Juvenile Division is reversed and the matter remanded to the trial court for further proceedings consistent with this opinion. JUDITH A. CHRISTLEY, J., concurs. DIANE V. GRENDELL, J., dissents. 1 Appellant stated that, inter alia, Klepper had (1) a penchant for staring at her for prolonged periods; (2) attempted to touch her; (3) expressed his desire to see her with her shirt off; and (4) attempted to invite himself to appellant's home while her husband was away.

2016-07-06 06:36:51.456827+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a judgment of the Wood County Court of Common Pleas which ordered stricken the appellant's voluntary notice of dismissal filed pursuant to Civ.R. 41(A)(1)(a). The trial court sua sponte declared the filing a nullity and ordered it stricken from the record. For the reasons set forth below, this court reverses the judgment of the trial court. {¶ 2} Appellant, The Northern Ohio Investment Company ("NOIC") sets forth the following sole assignment of error: {¶ 3} "The trial court erred in striking plaintiff's notice of dismissal which was filed before the sale was confirmed." {¶ 4} The following undisputed facts are relevant to the issues raised on appeal. In March 2005, NOIC filed a complaint in foreclosure against Julie A. Yarger ("mortgagor"). Mortgagor did not appear in the foreclosure action and has not denied the amount due or order of foreclosure. {¶ 5} On August 18, 2005, the trial court entered a judgment foreclosure and order of sale. A sheriff's sale of the underlying premises was scheduled for November 3, 2005. This initial sheriff's sale was subsequently canceled due to mortgagor's bankruptcy filing. NOIC secured relief from stay and the sheriff's sale was rescheduled to January 26, 2006. {¶ 6} Counsel for NOIC arrived a short time after 10:00 a.m. to discover the subject property had been the first offered for sale. A third-party bid had already been accepted in an amount of $58,000. This bid is equivalent to approximately half the value of the property. NOIC had been prepared to bid the $110,000 actual value at the sale. An informal attempt by NOIC to resolve the matter by offering the prospective purchasers $1,000 for their inconvenience was promptly rejected by them as insufficient and not "agreeable." On the contrary, the record shows the prospective purchasers engaged in passioned communications with the trial judge via correspondence and an "affidavit" to combat NOIC's legal challenge to completion of the sale. The letter and affidavit were dated and file-stamped January 31, 2006, evidencing personal delivery to the court. We carefully reviewed both documents and find they are not in any way rooted in law or authority relevant to this appeal. {¶ 7} In this correspondence, the prospective purchasers zealously suggested to the judge that if the sale was not permitted to be completed he would somehow be "compromising the legitimacy of the auction format itself." The record contains no legal basis for such a hyperbolic claim. {¶ 8} In addition, the "affidavit" of the prospective purchasers purports to give third party testimony ostensibly favorable to affiant by a well known Wood County attorney. There was no affidavit or testimony in the record from the attorney. The purported testimony pertained to the exact amount of time counsel for NOIC was delayed in arriving late at the sale. That issue, as will be explained below, is wholly irrelevant to the legitimacy of appellant's notice of voluntary dismissal. {¶ 9} On February 6, 2006, a week after appellant submitted the letter and affidavit to the judge, NOIC filed a motion to set aside the sale. It was denied. As the sale had not yet been confirmed or completed, NOIC filed a voluntary notice of dismissal pursuant to Civ.R. 41(A)(1)(a) on March 21, 2006. On March 27, 2006, the trial court sua sponte declared the notice of voluntary dismissal a nullity and ordered it stricken from the record. This appeal of that order was filed on March 31, 2006. {¶ 10} In its sole assignment of error, appellant contends the trial court erred in its sua sponte striking of NOIC's voluntary notice of dismissal. In support, appellant argues the trial court lacked any basis in legal authority to declare the notice of dismissal a nullity and order it stricken. It was appellant's first voluntary notice of dismissal in the case. The case never proceeded to trial. The notice of voluntary dismissal was filed before the sheriff's sale was confirmed and before title to the property transferred. {¶ 11} Civ.R. 41(A)(1)(a) establishes a plaintiff's unilateral right to voluntarily dismiss all claims asserted by the plaintiff. Civ.R. 41(A)(1)(a) states in relevant part: {¶ 12} "Subject to the provision of Civ.R. 23(E), Civ.R. 23.1, and Civ.R. 66, a plaintiff, without order of the court, may dismiss all claims asserted by that plaintiff against the defendant by doing either of the following: {¶ 13} "(a) filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by that defendant." (Emphasis added). {¶ 14} Controlling case law establishes that a notice of voluntary dismissal, such as that underlying this action, is unilateral, self-executing, and effective regardless of court approval. Murphy v. Ippolito, 8th Dist. No. 80682, 2002-Ohio-3548, at ¶ 5. The Supreme Court of Ohio has consistently held a plaintiff may dismiss an action pursuant to Civ.R. 41(A)(1) without order of the court. Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 126. {¶ 15} Case law makes clear a proper notice of voluntary dismissal filed pursuant to Civ.R. 41(A)(1) is fully effectuated upon its filing by the plaintiff. The act of filing the notice of voluntary dismissal automatically terminates the case. It requires no intervention by the court and is valid regardless of court approval. Peyton v. Rehberg (Apr. 14, 1997), 3rd Dist. No. 70964, at ¶ 6. {¶ 16} In its judgment entry purporting to sua sponte strike plaintiff's notice of voluntary dismissal, the court offers no legal basis in support of its action. The court unilaterally concludes, "a plaintiff in a foreclosure action, however, may not dismiss the complaint pursuant to Civ.R. 41(A)(1)(a) after the property has been sold at sheriff's sale." {¶ 17} In truth, the record shows there was not a completed sale of the property at the time of appellant's filing of voluntary dismissal. Rather, there had been an accepted bid. The sale had not been confirmed by the trial court. Title to the property had not been transferred to the prospective purchaser at the time of filing the notice of voluntary dismissal. There was neither a trial nor a completed sale. {¶ 18} It was during the pendency of sale in which NOIC filed a self-executing notice of voluntary dismissal. We find no compelling or persuasive legal authority to suggest a unilaterally self-executing notice of voluntary dismissal is invalidated by an unconfirmed sheriff's sale. {¶ 19} We review the trial court's actions in sua sponte striking the voluntary notice of dismissal pursuant to an abuse of discretion standard. The term an 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. {¶ 20} We have thoroughly reviewed the record in this matter. Controlling case law dictates a proper notice of voluntary dismissal is self-executing upon its filing without court approval. This right of voluntary dismissal is absolute. The record has no evidence that NOIC's filing did not comport with Civ.R. 41(A)(1)(a). Given the propriety of NOIC's filing a notice of voluntary dismissal, we find the trial court judgment unreasonable and arbitrary. It was an abuse of discretion. The dismissal was self-executing, fully effectuated upon its filing, and is hereby reinstated. Appellant's assignment of error is found well taken. {¶ 21} On consideration whereof, the judgment of the Wood County Court of Common Pleas is reversed and remanded for execution of this court's judgment. Appellees 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 Wood 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. Pietrykowski, J., Skow, J., Parish, J., concur.

2016-07-06 06:36:51.488776+00

JOURNAL ENTRY and OPINION {¶ 1} Appellant Dan Day appeals from his convictions for murder and reckless homicide following a jury trial. He complains that the court erred by denying his motion to suppress a statement he gave to the police, and denied him a fair trial by allowing the state to both read the statement to the jury and admit the written statement into evidence. He also contends that the court erred by refusing his request for appointment of a medical expert to assist the defense. Appellant argues he was denied due process when the court allowed prejudicial and inflammatory testimony to be introduced about the relationship between him and the victim, and when the prosecutor expressed his personal opinion about the appellant's guilt. He asserts the court erroneously overruled his motion for acquittal, erroneously instructed the jury, and erroneously sentenced him for murder rather than reckless homicide. Finally, he argues that the murder statute under which he was convicted violated his rights to equal protection and due process. We find no error in the proceedings below, and therefore affirm appellant's conviction and sentence. Procedural and Factual History {¶ 2} In an indictment filed December 18, 2002, appellant was charged with two counts of murder in connection with the death of Beverly Atterberry. Count one charged that appellant purposely caused Atterberry's death; count two charged that he caused her death as a proximate cause of committing an offense of violence that is a first or second degree felony. Appellant moved the court to appoint a medical expert to assist the defense in evaluating the autopsy, and moved the court to suppress a statement he made to the police. The court held a suppression hearing immediately before trial. {¶ 3} At the suppression hearing, Patrol Officer Wanda Babb testified that she was assigned to the report desk at Cleveland Police Headquarters on December 7, 2002. At approximately 12:00 noon, a man (later identified as the appellant) and woman (later identified as appellant's sister) approached her desk. The man reported that he and his wife had been fighting for the past three days and that "he had beat her up pretty bad," but she had been "okay" and went to bed. He found her dead when he went to check on her in the middle of the night. The officer-in-charge at the Fourth District police station confirmed that there had been a death at appellant's home, and asked Officer Babb to detain appellant. Officer Babb asked appellant and his sister to sit down in her work area. Approximately 30 to 45 minutes later, a Lieutenant Wagner arrived and took appellant to the city jail. {¶ 4} Detective James Gajowski testified that he was assigned to investigate a death at 3938 East 189th Street at approximately 10:20 a.m. on December 7, 2002. When he arrived at the scene at approximately 10:45 a.m., other officers directed him to a bedroom where he found the body of a deceased female. He observed that she was frothing from the mouth, and that her legs and neck were discolored. He also observed some scratches below the chin. He said the death appeared suspicious because of the marks on the victim's neck. {¶ 5} Gajowski was notified that appellant was at the Justice Center, so he and his partner proceeded there. They located appellant at the city jail at around 12:00 noon, and took him to the homicide unit of the Cleveland Police Department, where they informed him that they were investigating the death of the woman, whom they had identified as Beverly Atterberry. Appellant indicated that he would speak with them. Detective Gajowski's partner, Detective Cipo, read appellant his Miranda rights. Appellant appeared sober and oriented as to time, place and person. {¶ 6} Appellant gave a statement beginning at 1:00 p.m. Before he gave the statement, appellant affirmed, in writing, that he understood a written confirmation of his rights and that he wanted to make a statement. The statement was completed at 1:35 p.m., and appellant was asked to sign it. "He stated that he didn't feel comfortable signing it until he talked to his family or an attorney." The interview then ended. {¶ 7} Detective Gajowski sought appellant's consent to a search of the house at approximately 9:00 a.m. on December 10, 2002. Appellant provided his written consent to a search. Detective Gajowski and his partner reminded appellant of the statement he had given, and informed him that the coroner had ruled the death a homicide. Appellant confirmed that the statement was true and signed it after the police detectives read it to him. He told the police officers that he had not spoken to an attorney but had spoken to his family, who told him to cooperate. {¶ 8} At the conclusion of the hearing, the court denied both the motion to suppress and the motion for appointment of an expert. The case then proceeded to a jury trial. {¶ 9} At trial, Dr. Elizabeth Balraj, the Cuyahoga County coroner, testified that she autopsied the body of Beverly Atterberry on Sunday December 8, 2002. She observed extensive, recent bruising, scrapes and cuts on the body. There were surgical dressings on both arms and the right leg. There was extensive hemorrhaging of the soft tissues of the neck. The hyoid bone was fractured, an injury only sustained by squeezing the neck. She found extensive hemorrhaging in the soft tissues of the victim's body, and estimated that the victim had bled two liters or more into her soft tissues. The coroner testified that a person of the victim's size would have blood volume of approximately six liters, and if a person lost a third of his or her blood volume (as the victim did here), he or she could go into shock and die. She testified that the cause of death here was multiple blunt impacts and massive soft tissue hemorrhaging. {¶ 10} Toxicology found no alcohol, but did find cocaine metabolites in the victim's blood, which the coroner described as "breakdown products" of cocaine. She explained that breakdown products do not have any adverse effect but are part of the process of eliminating cocaine from the body. She also found amitriptyline, also known as Ellavil, a prescription anti-anxiety drug, in the victim's blood. Over appellant's objection, the coroner testified that the victim's injuries were consistent with having been beaten to death, and that this was "one of the worst" cases of an adult death resulting from blunt impact injuries. {¶ 11} On cross-examination, the coroner testified that she had not been aware that the victim was foaming at the mouth when found, but that fact was not diagnostic of any one condition. She further testified that amitriptyline could be fatal at levels of three milligrams per liter; the level in the victim's blood was far lower than that, .64 milligrams per liter. {¶ 12} The victim's mother, Annie Atterberry, testified that the victim had known the defendant ever since she was a child. They had a boyfriend/girlfriend relationship for the past eleven years, and lived together at times. She described their relationship as "brutal." She testified that the victim had been living with her for most of 2002, but lived with the appellant from November 15, 2002 until her death. {¶ 13} Ms. Atterberry testified that on December 7, 2002 at approximately 10:00 a.m., she received a telephone call from "Potts," appellant's cousin, regarding her daughter. As a result of this call, Ms. Atterberry had her stepson, Frank, call the police. She and her stepson then drove to appellant's house. The police were already there. She was not allowed in the house and did not see her daughter, but the police told her that her daughter was dead. {¶ 14} Patrol Officer Richard Toussing testified that he responded to a call to check on the well-being of a person at 3938 East 189th Street. They found the house locked, and heard a dog inside, so the kennel was called. They broke into the house and found the victim lying in bed with the covers pulled up to her neck. She was motionless, and foam was coming from her mouth. His partner determined that she had no pulse. {¶ 15} Detective Gajowski testified about his investigation of the scene where the victim was found, and about the statement he and Detective Cipo took from appellant. He then read appellant's statement into the record. The statement reported that appellant and the victim had been fighting since the previous Tuesday, shouting and hitting each other. They were also drinking liquor and smoking crack. They both went to bed at 10:00 or 11:00 p.m., the victim in the bedroom and appellant on a couch. Appellant called out for the victim at around 3:00 a.m., and when she did not respond, he went into the bedroom and found that she was dead. He called his aunt and asked for her help. Instead, his sister picked him up and brought him to the police station. He denied that he and the victim had been physically fighting the day before. He stated that he felt responsible for her death because he fought with her, but he did not intend to kill her. {¶ 16} Patrol Officer Babb testified about the report appellant made to her, including his statement that "he had beat her [the victim] up pretty bad." {¶ 17} The jury was instructed on both murder and the lesser included offense of reckless homicide with respect to count one, but was only instructed on murder with respect to count two. It returned a verdict of not guilty of murder but guilty of reckless homicide with respect to count one, and guilty of murder with respect to count two. The court then sentenced appellant to 15 years to life imprisonment. Law and Analysis Motion to Suppress {¶ 18} In his first assignment of error, appellant argues that the court erred by overruling his motion to suppress the statement he made to the police. First, he claims the statement was taken in violation of his right to counsel. We disagree. Detective Gajowski testified that appellant was given hisMiranda warnings before he gave his statement. These warnings included notification that appellant had the right to have an attorney present and that if he could not afford an attorney, one would be appointed to represent him. He stated that he understood these rights and chose to proceed to make the statement. Thus, appellant's statement was not taken in violation of his right to counsel. {¶ 19} Appellant stated that he would not sign the statement until he had spoken to his family or an attorney. The fact that appellant asked to speak to his family or an attorney after he gave the statement but before he signed it does not affect its admissibility; his signature was not necessary to make the statement admissible. Moreover, appellant did not say that he wanted to have an attorney present for any further questioning. He only indicated that he wanted to speak with his family or an attorney before he signed. He spoke with his family and then agreed to sign the statement. Therefore, we agree with the common pleas court that the statement was not taken in violation of appellant's right to counsel. See Davis v. United States (1994), 512 U.S. 452, 462 ("Unless the suspect actually requests an attorney, questioning may continue"). {¶ 20} Appellant next argues that his statement was taken in violation of his Fourth Amendment right not to be held without a probable cause determination. Because he was arrested without a warrant, a judicial determination of probable cause was required promptly after his arrest. Gerstein v. Pugh (1975),420 U.S. 103, 125. A probable cause determination is presumptively prompt if it occurs within 48 hours of arrest. The defendant bears the burden showing that a hearing held within this period was nevertheless unreasonably delayed. Riverside County v.McLaughlin (1991), 500 U.S. 44, 56. On the other hand, if the probable cause determination does not occur within 48 hours after the arrest, the government bears the burden of demonstrating that an extraordinary circumstance precluded an earlier determination. Id. at 57. {¶ 21} Appellant contends that suppression of evidence obtained incident to his arrest, including his statement, is the proper remedy for the state's failure to obtain a prompt probable cause determination. Notably, appellant does not argue that there was no probable cause for his arrest. He only argues that the state failed to obtain a prompt probable cause determination. Cf.Dunaway v. New York (1979), 442 U.S. 200. Consequently, we presume that the appellant's detention was lawful at the time he gave the statement. Suppression of this statement is not an appropriate remedy for a constitutional violation which allegedly occurred after the statement was made. United States v.Fullerton (6th Cir. 1999), 187 F.3d 587. Therefore, even if there was a McLaughlin violation, we would not suppress this statement as a result. {¶ 22} Appellant contends that he was not given fullMiranda warnings. The record belies this contention. In addition to the written statement of rights which appellant acknowledged, Officer Gajowski testified that Officer Cipo orally advised appellant of his constitutional rights, including his right to remain silent, his right to have an attorney present during questioning, and his right to have an attorney appointed to represent him free of charge. Therefore, we reject this argument. {¶ 23} Finally, appellant urges that his statement was involuntary because he was held for several days without a probable cause determination. However, as noted above, the statement was obtained at the beginning of his detention. Therefore, the length of his detention does not demonstrate that the statement was involuntarily obtained. {¶ 24} Accordingly, we overrule the first assignment of error. Appointment of Medical Expert {¶ 25} In his second assigned error, appellant asserts that the court erred by denying his motion for appointment of a medical expert. There is no statutory authority mandating the appointment of expert witnesses to assist indigent defendants in non-capital cases. State v. Weeks (1989), 64 Ohio App.3d 595,598. Thus, the standard to be applied is abuse of discretion. Id. We use as a guide the factors that are used in determining whether to appoint an expert in capital cases under R.C.2929.024. State v. Weeks (1989), 64 Ohio App.3d 595, 598;State v. Scott (1987), 41 Ohio App.3d 313, 315. Under R.C.2929.024, the court may authorize the defendant's counsel to obtain expert services if the court finds that the services are reasonably necessary. In determining whether the services are reasonably necessary, the factors the trial court should consider are (1) the value of the expert assistance to the proper representation of the defendant, and (2) the availability of alternative means to fulfill the same function as the expert assistance which is sought. State v. Jenkins (1984),15 Ohio St.3d 164, 193. {¶ 26} Although appellant claims there was an issue as to the cause of the victim's death, appellant questioned the coroner on all of the issues he raises now, and the coroner rejected them all. Dr. Balraj testified that the levels of amitriptyline in the victim's blood were not sufficient to have caused her death. There were harmless cocaine metabolites in her blood, but there was no cocaine in the victim's system at the time of her death, so neither cocaine use nor the interaction of cocaine and amitriptyline could have caused her death. The frothing or foaming from the mouth was not diagnostic. Therefore, appellant has failed to demonstrate that an expert witness would have provided any services of value to his defense, or achieved any result which was not achieved through cross-examination of the coroner. The second assigned error is overruled. Allegedly Prejudicial and Inflammatory Evidence {¶ 27} Next, appellant asserts that the court erred by allowing prejudicial and inflammatory testimony at trial. First, he complains that the prosecutor was allowed to ask the coroner whether the victim was beaten to death, and whether her injuries were consistent with having been beaten to death. This testimony was not inflammatory but was necessary to link the victim's death from multiple blunt force trauma to appellant's admitted actions in hitting her repeatedly over the previous three days. {¶ 28} Appellant also argues that he was prejudiced by the testimony of the victim's mother that the relationship between appellant and the victim was "[b]rutal; she [the victim] was always beaten up." The prosecutor's question — "How would you characterize the relationship that your daughter had with [appellant]? — did not invite this response, so we cannot characterize this as an instance of prosecutorial misconduct. The court did not have an opportunity to rule on appellant's objection to this question before the witness answered. Appellant did not request a mistrial or a corrective instruction, which could have repaired any prejudice. We cannot say that this one statement, in itself, denied appellant a fair trial. Therefore, we overrule the third assignment of error. Admission of Written Statement {¶ 29} Appellant urges that the court erred by allowing the state to both introduce his written statement and read the statement to the jury. He contends this was cumulative and gave undue emphasis to his statement. "A trial court enjoys broad discretion in admitting evidence. This court will not reject an exercise of this discretion unless it clearly has been abused and the criminal defendant thereby has suffered material prejudice."State v. Long (1978), 53 Ohio St.2d 91, 98. Abuse of discretion connotes an attitude which is unreasonable, arbitrary or unconscionable. "Upon review, we cannot say that this is an instance where the trial court abused its discretion and acted unreasonably or arbitrarily by admitting Defendant's written statement into evidence thus causing the needless presentation of cumulative evidence." State v. Overholt, Medina App. No. 02CA0108-M, 2003-Ohio-3500, ¶ 43. Therefore, we overrule the fourth assignment of error. Allegedly Improper Argument {¶ 30} Appellant next contends that the prosecutor improperly expressed his personal opinion about the defendant's guilt when he stated, in closing argument, "So he's clearly guilty of count two." Reviewing the statement in context, we cannot characterize this argument as an expression of personal opinion. The prosecutor argued: {¶ 31} "Now, you have two counts in front of you. And each count is a separate and distinct matter. {¶ 32} "Count two is a no brainer. It says, caused the death of another, as a proximate result of committing felonious assault. Felonious assault is knowingly causing serious physical harm to another. {¶ 33} "This lady is riddled with serious physical harm. {¶ 34} "* * * {¶ 35} "This woman did not fall down a flight of steps. This woman was not run over by a car. This woman did not inflict these injuries upon herself. She was beaten, over, and over, and over, and over, and over, and over, and over again. {¶ 36} "She was beaten to death. {¶ 37} "Now, to cause the death of another as a proximate result of committing felonious assault. That's a no brainer, ladies and gentlemen. I mean, with all due respect, that's not even arguable — {¶ 38} "MR. P. MANCINO [defense counsel]: Objection. {¶ 39} "MR. BOMBIK [prosecutor]: — under the evidence of this case. {¶ 40} "THE COURT: This is argument. Overruled. {¶ 41} "MR. BOMBIK: Well, it isn't. {¶ 42} "So he's clearly guilty of count two." {¶ 43} "MR. P. MANCINO: Objection. {¶ 44} "THE COURT: Well, it's going to be a jury question, but we're in the argument right now. Overruled." {¶ 45} This argument simply cannot be characterized as an expression of the prosecutor's personal opinion. Viewed as a whole, it was an argument that the evidence demonstrated appellant's guilt. In any case, the court corrected any misconceptions the jury may have had by stating that the defendant's guilt was a jury question. Therefore, the fifth assignment of error is overruled. Jury Instructions {¶ 46} Appellant's sixth assignment of error claims that the court erred by refusing to include a jury instruction on reckless homicide in connection with the second count of murder, although the court included such an instruction in connection with the first murder charge. He asserts that it was somehow "unfair" not to include an instruction on the lesser offense under both counts. {¶ 47} We agree with appellant that reckless homicide may be a lesser included offense of the form of murder charged in count two of the indictment, that is, causing the death of another as a proximate result of committing an offense of violence which is a first or second degree felony. State v. Jones, Cuyahoga App. No. 80737, 2002-Ohio-6045, ¶ 94. However, an instruction on a lesser included offense is warranted only if the jury could reasonably conclude that the evidence supported the lesser charge and did not support the greater charge. State v. Kidder (1987),32 Ohio St.3d 279. The evidence in the record showed that appellant struck the victim repeatedly over several days causing extensive bruising and hemorrhaging, and she died as a result those injuries. "[T]he jury could not have reasonably concluded that the evidence presented in this case supports a conviction for reckless homicide but not murder under R.C. 2903.02(B)."Jones, ¶ 94. Therefore, we overrule the sixth assignment of error.1 {¶ 48} Appellant's seventh assignment of error complains that the court instructed the jury in such a way as to allow him to be convicted for the intervening act of another. We do not agree that this was the import of the court's instruction. The court's instruction stated that the defendant was responsible for the consequences of his own unlawful act or failure to act, even if harm was also caused by others. In any case, there was no evidence of intervening acts which may have caused the victim's death. Therefore, appellant could not have been prejudiced by this instruction. Motion for Acquittal {¶ 49} Appellant next asserts that the court erred by denying his motion for judgment of acquittal. Appellant asserts that the coroner's testimony was equivocal as to the cause of death. Again, we must disagree. The coroner testified that the victim died as a result of multiple blunt impacts to the head, neck, upper and lower extremities, and massive soft tissue hemorrhage. She specifically denied that the cocaine metabolites and amitriptyline in the victim's blood contributed to her death. She further denied that the frothing from the victim's mouth was diagnostic of any one condition. Her testimony, taken together with appellant's own statement that he had beaten the victim "pretty bad," amply supported the conclusion that appellant caused the victim's death. Therefore, we overrule the eighth assignment of error. Allegedly Inconsistent Verdicts {¶ 50} Appellant contends that the two guilty verdicts were inconsistent. To the contrary, the verdicts were entirely consistent. The jury found that appellant "recklessly" caused the victim's death, in violation of R.C., 2903.041, and that he caused her death as a proximate result of a first or second degree felony offense of violence, in violation of R.C.2903.02(B). R.C. 2903.02(B) does not prescribe a culpable mental state in causing the death of another for purposes of the offense of murder.2 Therefore, the jury's determination that appellant recklessly caused the victim's death is not inconsistent with the finding that he committed a felony offense of violence, as a proximate result of which he caused the victim's death. Accordingly, we overrule the ninth assignment of error. Sentencing {¶ 51} Appellant argues that the court erred by sentencing him for murder rather than for reckless homicide. We are not aware of any authority which requires that appellant may be convicted only of the lesser of two allied offenses of similar import. Accordingly, we overrule the tenth assignment of error. Constitutionality of R.C. 2903.02(B) {¶ 52} Finally, appellant contends that the offense of murder of which he was convicted was functionally equivalent to involuntary manslaughter, a lesser offense. He argues the Revised Code therefore imposes disparate penalties for the same offense, in violation of his rights to equal protection and due process. We previously rejected these arguments in Jones, at ¶¶ 125-136. Accordingly, we overrule the eleventh assignment of error, and affirm the common pleas court's decision. Judgment affirmed. Patricia ann Blackmon, P.J., and Sweeney, J., concur. 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. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). #83138 State of Ohio v. Dan Day. 1 This conclusion does not undermine the jury's finding that appellant was guilty of reckless homicide under count one of the indictment. The elements of murder under counts one and two were distinct. The jury could consistently find that appellant did not purposely cause the victim's death, but that he did recklessly cause her death, and that appellant caused the victim's death as a proximate result of committing an offense of violence which was a first or second degree felony. There was simply no evidence from which the jury could have concluded that appellant recklessly caused the victim's death by some means other than a first or second degree felony of violence. 2 This does not mean that the state is relieved of the obligation of proving mens rea under R.C. 2903.02(B). Under the common law approach to felony murder, intent to kill is presumed from the intent to commit the underlying felony. Jones, at ¶ 130. Alternatively, this court has previously noted that, where a statute does not include a culpable mental state and does not plainly indicate an intent to impose strict liability, the applicable culpable mental state is recklessness. Jones, at ¶ 77; R.C. 2901.21(B).

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OPINION Defendant Michael Jamar Simms appeals a judgment of the Court of Common Pleas of Stark County, Ohio, convicting and sentencing him for one count of aggravated robbery in violation of R.C.2911.01 and one count of assault in violation of R.C. 2903.13. Appellant assigns four errors to the trial court: ASSIGNMENTS OF ERROR I. THE DECISION OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BY COUNSEL'S FAILURE TO PERFORM ESSENTIAL DUTIES, THEREBY VIOLATING APPELLANT'S CONSTITUTIONALLY PROTECTED RIGHTS. III. THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS FAILURE TO CORRECT CERTAIN OBVIOUS, PREJUDICIAL ERRORS. IV. THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO DUE PROCESS OF LAW IN VIOLATION OF THE UNITED STATES CONSTITUTION BY ITS FAILURE TO NOTIFY APPELLANT OF THE SPECIFICS OF POST-CONVICTION RELIEF CONTROL AS REQUIRED BY THE R.C. At trial, the State presented testimony of two police officers. Canton City Police Office Michael Peterson testified he observed appellant and another man in downtown Canton, Ohio. Peterson confirmed an outstanding warrant for appellant's arrest, and parked his police cruiser behind appellant's vehicle. Officer Peterson also radioed for backup officers. Officer Peterson testified when he informed appellant of the outstanding warrant, appellant struggled, and struck him in the chest at least twice. Appellant and Peterson fell to the ground, at about the time Canton City Police Officers Flaherty and Saler arrived at the scene. Officer Saler is assigned to the K-9 Patrol Unit, and is partnered with a German Shephard named Maxwell. Peterson testified while he and appellant were wrestling on the ground, appellant unbuckled Peterson's holster and started to removed his gun. Eventually, the officers subdued appellant and placed him under arrest, after Maxwell bit appellant at least twice and one of the officer had maced appellant. Officer Peterson was treated at a local hospital for bites to his hand allegedly received from appellant. Officer Saler also testified at trial, corroborating Officer Peterson's testimony. Officer Saler testified he saw appellant attempting to gain control of Peterson's weapon. Appellant offered three witnesses in his Case in Chief. Appellant's cousin, and companion at the time, testified Officer Peterson grabbed appellant without provocation. This eyewitness testified appellant never threw any punches at any police officers and never attempted to take any gun from them. Appellant's cousin also testified the police officers on the bike patrol unit arrived and drew their guns also. Appellant also called a passerby who observed the incident. The passerby testified he was acquainted with appellant. The passerby testified he saw the police officers spray mace into appellant's face and saw the dog attack appellant. Appellant testified in his own defense, and denied attempting to take anyone's gun or unbuckling the safety strap on the holster. Appellant denied bitting Officer Peterson, and denied punching or kneeing anyone. I In his first assignment of error, appellant urges the trial court's judgment, entered on the jury's verdict, was against the manifest weight of the evidence and supported by insufficient evidence. R.C. 2911.01(B) states in pertinent part: (B) No person, without privilege to do so, shall knowingly remove or attempt to remove a deadly weapon from the person of a law enforcement officer, or shall knowingly deprive or attempt to deprive a law enforcement officer of a deadly weapon, when both of the following apply: (1) The law enforcement officer, at the time of the removal, attempted removal, deprivation, or attempted deprivation, is acting within the course and scope of the officer's duties; (2) The offender knows or has reasonable cause to know that the law enforcement officer is a law enforcement officer. R.C. 2903.13 states in pertinent part: (A) No person shall knowingly cause or attempt to cause physical harm to another or to another's unborn. (B) No person shall recklessly cause serious physical harm to another or another's unborn. In State v. Thompkins (1997), 78 Ohio St.3d 380, the Ohio Supreme Court developed the similarities and distinctions between the concepts of manifest weight and sufficiency of the evidence. The Supreme Court noted the distinctions are qualitative and quantitative. Sufficiency of the evidence refers to the legal standard the trial court applies to determine whether the evidence is legally sufficient to support the verdict as a matter of law, Thompkins at 386, citations deleted. Thus, the issue of sufficiency of the evidence is directed to the trial court's legal determination. However, even if a judgment is sustained by sufficient evidence, the judgment may nevertheless be against the manifest weight of the evidence, because the weight of the evidence concerns the amount of credible evidence offered in a trial in support of side of the issue, Thompkins at 387, citations deleted. Thus, the weight of the evidence concern the factual issues as determined by the jury. Appellant characterizes the State's evidence as vague, uncertain, conflicting and fragmentary. Appellant urges the police officers contradicted themselves and each other. Appellant also points out he and his two eyewitnesses described the incident much differently from the police officer's descriptions. The State argues the Supreme Court has directed us not to reverse a jury verdict if there is substantial evidence on which the jury could reasonably conclude all the elements of the offenses had been proven beyond a reasonable doubt, see e.g. State v. Eley (1978), 56 Ohio St.2d 169 . This court must defer to the judgment of the trier of fact regarding the weight to be given the evidence and credibility of the witnesses, see State v. DeHass (1967), 10 Ohio St.2d 230. We have reviewed the record, and we find the State presented sufficient evidence which, if believed, would support a jury verdict of guilt beyond a reasonable doubt. The jury here heard the testimony of the officers, as well as appellant's testimony and that of his witnesses. This court cannot substitute its judgment for that of the jury in resolving the factual issues. We conclude the trial court's judgment is supported by the sufficiency and weight of the evidence. Accordingly, the first assignment of error is overruled. II In his second assignment of error, appellant urges he was denied the effective assistance of counsel because counsel failed to object to certain testimony, and statements made by the prosecutor in her closing argument, see III, infra. In Strickland v. Washington (1984), 466 U.S. 668, the United States Supreme Court fashioned a two-pronged test for use in claims of ineffective assistance of counsel. First, the defendant must demonstrate counsel's representation fell below an objective standard of reasonableness, and must also demonstrate the defendant was prejudiced as a result of counsel's performance. Ohio uses the Strickland test, see State v. Bradley (1989),42 Ohio St.3d 136. In Lockhart v. Fretwell (1993), 506 U.S. 364, the United States Supreme Court found a deficient performance by counsel is one which renders the result of the trial unreliable or the proceeding fundamentally unfair. First appellant cites us to the testimony of Officer Peterson tending to show appellant operated a motor vehicle without a valid Ohio driver's license. Officer Peterson also attempted to testify regarding what he believed appellant would have done had he managed to get Peterson's gun. Peterson also testified as to the conduct of appellant's cousin, who testified on appellant behalf. The officer testified appellant's cousin was yelling, swearing, and telling the police to "get off of" appellant, and this person was subsequently arrested for his behavior. As the State points out, the court itself sua sponte interrupted Peterson's testimony regarding appellant's lack of an Ohio driver's license and his speculation regarding appellant's potential use of the gun. The court instructed the jury on both occasions to disregard the statement. In fact, the court actually stopped the witness' testimony at one point. As the State urges, we find appellant cannot demonstrate he was prejudiced by defense counsel's conduct in failing to object to the testimony, because the trial court sua sponte intervened, rendering an objection unnecessary. Regarding Officer Peterson's testimony about the conduct and arrest of appellant's cousin, appellant urges the evidence is irrelevant and would not have been admitted had counsel objected properly. When appellant's cousin testified, he freely admitted intervening in the situation that developed between appellant and the police officers. Thus, appellant introduced the testimony himself, and may not now assign error to its admission. Appellant also argues certain statements the prosecutor made in her closing argument were prejudicial, and his counsel should have objected to them. First, appellant urges the prosecutor made improper comments about the appellant not being tested for drugs or alcohol. Our review of the record discloses defense counsel objected, and the court sustained the objection and instructed the jury to disregard the comment. The prosecutor also told the jury appellant's cousin was convicted of obstructing official business as a result of his activities in this situation. In fact, appellant's admitted this on cross examination. It is not error for the prosecutor to comment on evidence presented at trial. More problematic is the prosecutor's comment that Officer Peterson testified that he was in fear of his life when he realized appellant was grabbing at his gun. This comment references one of the portions of Officer Peterson's testimony which the court sua sponte struck from the record. As the State points out, however, the jury undoubtedly appreciated the dangerousness of the situation. Thus, this single mention of a matter which should have been obvious, was not sufficient to deprive the appellant of a fair trial. We have reviewed the record, and we find none of the instances cited by appellant demonstrate the ineffective assistance of counsel. The second assignment of error is overruled. III In his third assignment of error, appellant cites us once again to the incidents complained of in the prosecutor's closing argument, see II, supra. Appellant urges the trial court's failure to sua sponte intervene constituted plain error. Pursuant to Crim.R. 52 (b), plain errors, or defects which affect the substantial rights of the defendant, may be noticed, although they were not brought to the attention of the court. In State v. Long (1978), 53 Ohio St.2d 91, the Ohio Supreme Court held plain error does not exist unless the court can say that but for the error, the outcome of the trial would clearly have been otherwise. Because of our findings in II, supra, we conclude the trial court committed no plain and prejudicial error. In addition, appellant urges the trial court committed plain error in admitting State's Exhibit 1 through 3 without a proper foundation. The exhibits in question are three photographs of Officer Peterson taken at the hospital to demonstrate the bites the officer suffered during the altercation. Although the State did not introduce testimony of the person who took the photos or present evidence of where the photos were stored pending the trial, Officer Peterson testified the pictures were taken at the hospital of the bite wounds appellant had inflicted on him. Officer Peterson testified the photographs accurately depicted the injuries he had suffered. The State also points out defense counsel did not object to the admission of the exhibits. In fact, part of appellant's defense was that he could not have inflicted the bites in question because he was missing two of his front teeth. Thus, counsel may not have objected to the exhibits because of sound trial strategy, believing the exhibits actually supported appellant's version of events. Our review of the record leads us to conclude the trial court did not commit plain error in it conduct of this case. Accordingly, the third assignment of error is overruled. IV In his fourth assignment of error, appellant urges the trial court did not comply with the mandates of R.C. 2919.19 when it pronounced sentence. The State concedes this point, and it is borne out independently in the transcript of the sentencing hearing. The State concedes this court should remand the case to the trial court in keeping with our previous judgments, see e.g. State v. Pryor (August 9, 1999), Stark App. No. 1999CA00044, unreported. The fourth assignment of error is sustained. For the foregoing reasons, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed in part and reversed in part. The sentence is hereby vacated, and the cause is remanded to the trial court for re-sentencing in accord with law and consistent with this opinion. By GWIN, P.J., HOFFMAN, J., and FARMER, J., concur.

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OPINION *Page 2 {¶ 1} Appellant, C.J. Mahan Construction Company, was the general contractor on a bridge reconstruction project located on Route 62 and Interstate 77 in Canton, Ohio. Appellant entered into a subcontract agreement with Mohawk Re-Bar Services, Inc. to supply and install rebar for the construction project. Appellant provided a crane and crane operator for Mohawk's use in performing its work. {¶ 2} Paragraph 9 of the subcontract agreement between appellant and Mohawk required Mohawk to purchase and maintain workers' compensation coverage and liability coverage, and obtain comprehensive general liability, automobile liability, excess liability, and Ohio stop gap insurance. Appellant also required Mohawk to name it as an additional insured under its comprehensive general liability policy. {¶ 3} Mohawk purchased a commercial general liability policy and commercial umbrella policy through appellee, Cincinnati Insurance Company. The commercial general liability policy contained an Additional Insured Endorsement Form, GA 472 01 99. {¶ 4} On October 19, 2001, two Mohawk employees, plaintiffs herein, Jeffrey Tingler and Curt Naus, were engaged in attaching bundles of re-bar to a crane operated by an employee of appellant's when the crane came in contact with an overhead electrical power line. As a result, the two employees were shocked and sustained injuries. {¶ 5} On November 16, 2001, plaintiffs filed a complaint against appellant and Mohawk alleging intentional tort against Mohawk and intentional tort and negligence *Page 3 against appellant.1 Appellant expected Cincinnati to defend the claims pursuant to the terms of the Additional Insured Endorsement. Cincinnati refused to defend the claims against appellant. Thereafter, appellant filed a cross-claim against Mohawk alleging Mohawk was primarily liable for the injuries to the plaintiffs. Appellant sought contribution and indemnity from Mohawk. {¶ 6} On March 29, and July 22, 2004, plaintiffs dismissed their claims against Mohawk and appellant, respectively, pursuant to a settlement agreement. {¶ 7} On August 16, 2004, Mohawk filed a motion for summary judgment on appellant's amended cross-claim filed December 12, 2003. On October 27, 2004, appellant filed a third party complaint against Cincinnati alleging breach of contract in failing to provide a defense. By judgment entry filed November 19, 2004, the trial court granted Mohawk's motion for summary judgment. On appeal, this court affirmed this decision. See,C.J. Mahan Construction Company v. Mohawk Re-Bar Services, Inc., Stark App. No. 2004CA00387, 2005-Ohio-5427. {¶ 8} Following the appeal, appellant filed a motion for summary judgment on October 30, 2006 on its third party complaint against Cincinnati. On December 6, 2006, Cincinnati filed a brief in opposition and a cross-motion for summary judgment. By judgment entry filed February 20, 2007, the trial court denied appellant's motion and included Civ.R. 54(B) language, "[t]here is no just reason for delay." {¶ 9} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: *Page 4 I {¶ 10} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING MAHAN'S MOTION FOR SUMMARY JUDGMENT SINCE THERE IS NO DISPUTE THAT MAHAN WAS ENTITLED TO A DEFENSE UNDER THE CLEAR AND UNAMBIGUOUS LANGUAGE OF THE CINCINNATI POLICY." II {¶ 11} "THE TRIAL COURT ABUSED ITS DISCRETION BY CERTIFYING THE DENIAL OF A MOTION FOR SUMMARY JUDGMENT AS A FINAL APPEALABLE ORDER." I {¶ 12} Appellant claims the trial court erred in denying its motion for summary judgment. We disagree. {¶ 13} 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 in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448,1996-Ohio-211: {¶ 14} "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, *Page 5 citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274." {¶ 15} 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. TheWedding Party, Inc. (1987), 30 Ohio St.3d 35. {¶ 16} Appellant's summary judgment motion involved its third party claims against Cincinnati. Appellant sought judgment for Cincinnati's failure to defend under a policy of insurance wherein appellant was named as an additional insured. The basis of appellant's third party complaint was for damages as a result of Cincinnati's failure to defend appellant in the underlying intentional tort action. {¶ 17} The Additional Insured Endorsement in this case included the following: {¶ 18} "1. WHO IS AN INSURED (Section II) is amended to include as an insured: {¶ 19} "2.e. Any person or organization, hereinafter referred to as ADDITIONAL INSURED, for whom you are required to add as an additional insured on this Coverage Part under: {¶ 20} "(1) A written contract or agreement; or {¶ 21} "(2) An oral agreement or contract where a certificate of insurance showing that person or organization as an additional insured has been issued; but only with respect to liability arising out of your ongoing operations performed for that additional insured by you or on your behalf. A person's or organization's status as an *Page 6 insured under this endorsement ends when your operations for that insured are completed. {¶ 22} "* * * {¶ 23} "4. COVERAGES (Section I) is amended to include: {¶ 24} "The insurance provided to the additional insured does not apply to `bodily injury', `property damage', `personal injury' or `advertising injury' arising out of the {¶ 25} "* * * {¶ 26} "b. Sole negligence or willful misconduct of, or for defects in design furnished by, the additional insured or its `employees'." {¶ 27} We have previously addressed the scope of this "additional insured" coverage in C.J. Mahan Construction Company v. Mohawk Re-BarServices, Inc., Stark App. No. 2004CA00387, 2005-Ohio-5427 (hereinafter"Mahan I"). The following assignments of error in Mahan I included arguments concerning the scope of coverage under the Cincinnati policy: XI {¶ 28} "THE LOWER COURT ERRED IN FAILING TO CONSIDER WHETHER THE TERMS OF POLICIES OF INSURANCE PROVIDED BY MOHAWK TO MAHAN REQUIRE BOTH A DUTY TO DEFEND MAHAN AND POLICY COVERAGE OF MAHAN FOR THE CAUSES OF ACTION ALLEGED BY THE EMPLOYEES OF MOHAWK. XII {¶ 29} "THE LOWER COURT ERRED IN CONCLUDING THAT DISMISSAL OF ALLEGATIONS INVOLVING CONTRIBUTION BY JOINT TORTFEASORS TO THE *Page 7 PLAINTIFFS IMPACTS THE CLAIM OF MAHAN AGAINST MOHAWK AND THE INSURANCE CARRIER. XIII {¶ 30} "THE LOWER COURT ERRED IN CONCLUDING THAT THE DECISION INVOLVING THE CLAIMS INVOLVING MOHAWK DISPOSED OF THE CLAIM INVOLVING CINCINNATI INSURANCE COMPANY. XIV {¶ 31} "THE LOWER COURT ERRED IN FAILING TO CONSIDER PRIOR TO ITS DECISION WHETHER CINCINNATI INSURANCE COMPANY HAD A DUTY, UNDER ITS INSURANCE POLICY, TO DEFEND MAHAN." {¶ 32} In Mahan I, we determined the scope of the policy as follows at ¶ 81: {¶ 33} "We agree with the trial court, regardless of which additional insured endorsement is applied, the policy would only cover Mahan for liability arising out of Mohawk's work for Mahan. As noted supra, the plaintiffs in the underlying litigation alleged negligence against Mahan only, not vicariously through Mohawk; therefore, the additional insured endorsements could not apply as the plaintiffs' allegations would be excluded as a matter of law under the endorsement because the allegations involved Mahan's own actions, not Mohawks actions arising out of their work for Mahan." {¶ 34} Therefore, the terms of the policy will cover appellant for injury arising out of Mohawk's work for appellant. Conversely, it would not cover appellant for any of its own acts of negligence or own intentional tort. For example, if construction work performed by Mohawk caused injury or liability to appellant, e.g., a re-bar failed and injured another, any suit against appellant would have to be defended by Cincinnati. It *Page 8 would not cover the negligent acts of appellant's crane operator in causing shock to Mohawk's employees or in providing an unsafe work place for Mohawk's employees. {¶ 35} The underlying cause of action involved the operation of a crane by appellant's employee and the placement of re-bar by Mohawk's employees. As a result of the crane's position in proximity to electrical power lines, the crane came in contact with the lines and caused an electric shock resulting in injury to the plaintiffs. The complaint and amended complaint claimed appellant was negligent in the placement and operation of the crane and in supervising and training its employee, failed to provide proper equipment, failed to provide proper safety devices and warnings, failed to comply with safety codes, failed to contact the power company, and failed to provide a safe workplace. It further claimed an intentional tort by both appellant and Mohawk in failing to provide a safe workplace and in permitting a dangerous condition to exist. The amended complaint filed November 19, 2003 claimed joint and several liability of each party. {¶ 36} The complaint against appellant and Mohawk was dismissed via a general dismissal after mediation and a settlement by the parties. The issue of joint/several liability or who actually controlled the workplace and the location of the crane was never litigated. {¶ 37} Appellant argues because of the possibility that some act alone by Mohawk caused damage to appellant (being sued for negligence and intentional tort), Cincinnati had a duty to defend. We disagree with this analysis of the coverage sub judice. Being sued for negligence is not per se what was contemplated by the clear and unambiguous language of the "additional insured" coverage. *Page 9 {¶ 38} Given our opinion in Mahan I and the clear reading of ¶ 81 therein, we find the doctrine of law of the case applies: {¶ 39} "Briefly, the doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels. * * * Thus, where at a rehearing following remand a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal, the court is bound to adhere to the appellate court's determination of the applicable law. {¶ 40} "The doctrine is considered to be a rule of practice rather than a binding rule of substantive law and will not be applied so as to achieve unjust results. * * * However, the rule is necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution. * * * {¶ 41} "In pursuit of these goals, the doctrine functions to compel trial courts to follow the mandates of reviewing courts.* * * Thus, where at a rehearing following remand a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal, the court is bound to adhere to the appellate court's determination of the applicable law.* * * Moreover, the trial court is without authority to extend or vary the mandate given.* * *" Nolan v.Nolan (1984), 11 Ohio St.3d 1, 3-4. (Citations omitted.) {¶ 42} We further note the Supreme Court of Ohio denied jurisdiction to hear the issues of Mahan I. See, C.J. Mahan Construction Company v.Mohawk Re-Bar Services, Inc., 108 Ohio St.3d 1489, 2006-Ohio-962. {¶ 43} Assignment of Error I is denied. *Page 10 II {¶ 44} Based upon our decision in Assignment of Error I, this assignment is moot. {¶ 45} The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed. Farmer, P.J. Wise, J. and Edwards, J. concur. *Page 11 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. 1 Mr. Tingler died on November 22, 2002. Terrell Cross, as duly appointed estate representative, was substituted as plaintiff Tingler. A first amended complaint was filed on November 19, 2003. *Page 1

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This case has sua sponte been removed from the accelerated calendar. DECISION. In September 1997, lessee, plaintiff-appellant 1345 Main Partners, Ltd. (Main Partners), filed a complaint against the lessor, defendant-appellee Michael A. Collins, seeking a temporary and a permanent injunction,1 a declaratory judgment, and damages for breach of a lease agreement. Specifically, the complaint alleged that Main Partners was forced to withhold its September rent because Collins had wrongly removed display lights and fixtures belonging to Main Partners from the front door of the leased property. The complaint further alleged that, in response to the termination of rent payments, Collins improvidently evicted Main Partners from the property. Main Partners sought quiet enjoyment of the property, including the immediate restoration of the light fixtures and lighting; an injunction preventing Collins from interfering with business on the property; and damages arising from Collins's business interference. In response, Collins filed an answer, counterclaim, and third-party complaint on October 2, 1997. In his counterclaim, Collins alleged that Main Partners had breached its obligations under the lease by refusing to pay rent, and that he had suffered damages as a direct and proximate result of that breach. In the third-party complaint, Collins maintained that third-party defendant Carl Perin was a general partner of Main Partners and that Perin was liable for Main Partners' obligations under the lease. On October 21, 1998, Collins filed a motion for summary judgment against Main Partners, alleging that all of the issues in the case were wholly disposed of in the United States Bankruptcy Court. According to Collins, Main Partners had filed a Chapter 11 application in order to seek protection under the bankruptcy laws. Further, Collins alleged that the bankruptcy court had held a full trial on all of the issues between the parties, including those issues still pending in the state court. Main Partners filed a memorandum in opposition to the summary-judgment motion, alleging that the bankruptcy court had only addressed leasehold rights to the use of the property pending the Chapter 11 hearing, and that, although the bankruptcy court acknowledged that there were additional disputes between the parties, it did not address those issues. Main Partners attached an affidavit from Carl Perin to its memorandum. In that affidavit, Perin stated that the bankruptcy court did not address the issues still pending between the parties in the state-court action. On November 20, 1998, the trial court, after reviewing the record (including the applicable law, the bankruptcy court decision, the parties' memoranda and properly filed affidavits), granted Collins's motion for summary judgment, ruling that: all issues in dispute in this litigation have been or should have been disposed of in the Bankruptcy Case. Therefore under the principle of res judicata, there are no remaining material issues of law or fact in dispute and Collins is entitled to judgment as a matter of law on all of the claims of Plaintiff. In its sole assignment of error, Main Partners asserts that the trial court improperly granted summary judgment on the basis of res judicata. Essentially Main Partners argues that the bankruptcy court's decision did not dispose of any of the issues pending in the state-court action, because the only issue before the bankruptcy court was a determination of who actually retained rights to the use of the property after the eviction, while the issues before the trial court related to use and enjoyment of the property prior to the eviction and the Chapter 11 application. Based on the evidence presented in the record, we agree that summary judgment was improperly granted. In Ohio, the doctrine of res judicata encompasses both claim preclusion and issue preclusion.2 With regard to the claim-preclusion effect of res judicata, or estoppel by judgment, a final, valid judgment on the merits is conclusive as to all claims arising out of the transaction or occurrence that was the subject matter of the previous lawsuit.3 Res judicata as it relates to claim preclusion is applicable to a bankruptcy proceeding in the following circumstances: (1) both cases involve the same parties, (2) the prior judgment was rendered by a court of competent jurisdiction, (3) the prior decision was a final judgement on the merits, and (4) the same cause of action is at issue in both cases.4 With regard to the issue-preclusion effect of res judicata, often referred to as collateral estoppel, relitigation of issues actually litigated in a prior suit between the same parties is precluded.5 Collateral estoppel is a bar to relitigation of an issue if: (1) the issue is the same as the one previously and actually litigated by the parties in prior action; (2) resolution of the issue was essential to the previous judgment and passed upon and determined by a court of competent jurisdiction; and (3) there is mutuality between the parties.6 Preliminarily, we note that that our review of this case is severely limited by two factors. First, no evidence has been presented to demonstrate what claims were actually brought and argued before the bankruptcy court. Second, no evidence has been presented to demonstrate what has subsequently happened to Main Partners' Chapter 11 application. Without this information, it is difficult to ascertain exactly what claims were before the bankruptcy court and whether a final judgment was rendered relating to the Chapter 11 application. With that in mind, we look to what is actually in the record. The record reflects that, after filing the Chapter 11 application, Collins filed a motion for summary judgment and Main Partners reciprocally filed a motion for "return to premises" in the bankruptcy court. After conducting hearings on the motions, the bankruptcy court granted Main Partners' motion to return to the leased premises provided that it cured all rent arrears and other applicable charges due under the lease, and it denied Collins's motion for summary judgment. In its decision, the bankruptcy court identified that its decision was limited to the motions raised by the parties when it stated: [t]he remaining issues involving the premises, including assumption of the lease, payment of rent arrears, and additional disputes between the parties shall be presented to the Court by motion of the parties. The parties are admonished, however, that they are likely to find the Court far less tolerant and more inclined to impose sanctions against them if the Court is called upon to resolve disputes concerning matters which are the subject of the lease agreement or any separate oral agreements the parties may have entered regarding the placement of exterior lighting, signage, or the like. [Footnote omitted.] Based on this record, it is evident that the issues raised by Main Partners in state court were not actually litigated in the previous bankruptcy proceeding; therefore, res judicata as it relates to issue preclusion is inapplicable here. Moreover, we are unconvinced that the bankruptcy court's decision constituted a final judgment. The decision only determined two limited motions raised by the parties subsequent to the Chapter 11 hearing, and it did not finally determine the Chapter 11 application or any state claims. Accordingly, we hold that the doctrine of res judicata as it relates to claim and issue preclusion does not bar the state court's consideration of Main Partners' claims. Because the trial court erroneously granted summary judgment on the basis of res judicata, we reverse the judgment of the trial court and remand the cause for further proceedings. Judgment reversed and cause remanded. Gorman, P.J., Painter and Sundermann, JJ. Please Note: The court has placed of record its own entry in this case on the date of the release of this Decision. 1 The temporary restraining order was denied by the trial court on September 12, 1997. 2 See Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 381,653 N.E.2d 226, 228. 3 See id. at 382, 653 N.E.2d at 229. 4 Bollinger, Inc. v. Mayerson (1996), 116 Ohio App.3d 702,709, 689 N.E.2d 62, 67. See, also, Jungkunz v. Fifth Third Bank (1994), 99 Ohio App.3d 148, 151, 650 N.E.2d 134, 136. 5 See Krahn v. Kinney (1989), 43 Ohio St.3d 103, 107,538 N.E.2d 1058, 1062. 6 See New Winchester Gardens, Ltd. v. Franklin Cty. Bd. ofRevision (1997), 80 Ohio St.3d 36, 41, 684 N.E.2d 312, 316;Bollinger, Inc. v. Mayerson, supra, at 710, 689 N.E.2d at 67.

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JOURNAL ENTRY and OPINION {¶ 1} Appellant Kevin Watson appeals the trial court's granting of summary judgment in favor of Parma Community General Hospital ("Parma Hospital") on his claim that he was discharged in violation of public policy. Watson assigns the following error for our review: "I. Plaintiff-appellant Kevin Watson ("Watson") contends in this appeal that the trial court erred in granting summary judgment to defendant-appellee Parma Community General Hospital. Watson maintains that since the federal court that decided Watson's federal law claim did not have subject matter jurisdiction over Watson's state law claims that [the] prior federal proceeding did not have res judicata effect upon Watson's state court lawsuit." {¶ 2} Having reviewed the record and pertinent law, we affirm the decision of the trial court. The apposite facts follow. {¶ 3} On July 26, 2001, Watson filed a complaint against Parma Hospital in federal court. Watson's federal lawsuit raised claims of retaliation pursuant to Title VII and R.C. 4112.99. In the suit, he alleges in 1997 he was head of the Radiation Safety Program at Parma Hospital. In January 2000, a co-worker of Watson's confidentially informed him that she was pregnant. Watson made an inquiry on behalf of the pregnant employee. During the inquiry, Watson refused to disclose who the pregnant employee was. Watson was subsequently demoted and eventually discharged. {¶ 4} Watson claimed his action was protected by state and federal law; consequently, his demotion and discharge constituted retaliatory conduct. {¶ 5} On January 7, 2002, the federal court dismissed Watson's federal and state claims, stating in pertinent part: "The court concludes as a matter of law that it was objectively unreasonable for plaintiff to take the position that he was opposing a Title VII violation in refusing to disclose the name of a pregnant co-worker. Because plaintiff did not engage in protected oppositional activity, the court concludes he has not established a prima facie case of retaliatory discharge and thus has not stated a cause of action."1 {¶ 6} Watson did not appeal the federal court's decision. Instead, six months later, he filed suit in the Cuyahoga Common Pleas Court. In that action, Watson claimed he was terminated for failing to inform superiors at the hospital about safety violations committed by the hospital staff. He argued he was a whistle-blower and his termination violated public policy. {¶ 7} Parma Hospital filed a motion for summary judgment based on the doctrine of res judicata. The hospital argued Watson could have raised the whistle-blower claim in federal court with his other claims. The trial court agreed and granted Parma Hospital's summary judgment. STANDARD OF REVIEW {¶ 8} We review an appeal from summary judgment under a de novo standard of review.2 Accordingly, we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate.3 Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can reach only one conclusion which is adverse to the non-moving party.4 {¶ 9} The moving party carries an initial burden of setting forth specific facts which demonstrate his or her entitlement to summary judgment.5 If the movant fails to meet this burden, summary judgment is not appropriate; if the movant does meet this burden, summary judgment will be appropriate only if the non-movant fails to establish the existence of a genuine issue of material fact.6 FEDERAL COURT'S JURISDICTION OVER THE NEW ACTION {¶ 10} In his sole assigned error, Watson contends the trial court erred in granting summary judgment in favor of Parma Hospital. Watson argues that res judicata does not bar his state suit because he could not have brought the claim in federal court. He contends the federal court did not have jurisdiction to decide a purely state law claim once it dismissed his federal claim. {¶ 11} According to the United States Supreme Court's decision in United Mine Workers v. Gibbs, "if the federal claims are dismissed before trial, * * * the state claims should be dismissed as well."7 However, there is no mandatory rule that the state claims be dismissed.8 "Pendent jurisdiction is a doctrine of discretion, not of plaintiff's right."9 "Trial courts do possess some discretion to decide a pendent state law claim once the federal basis for jurisdiction is dismissed. A trial court must balance the interests * * * when deciding whether to resolve a pendent state claim on the merits."10 {¶ 12} If a plaintiff commences and actually litigates an action in federal court, but omits state law claims that could have been brought under pendent jurisdiction, his or her claim is extinguished upon adjudication and the plaintiff is barred from maintaining a second action on a different theory in state court.11 {¶ 13} To allow the plaintiff to go forward on a different theory in state court would result in claim splitting.12 {¶ 14} Although Watson contends he did not bring a "purely state law" claim in his federal action, our review of the record indicates that he did. Along with stating in the first paragraph of his federal complaint that the trial court had pendant jurisdiction over his claims, Watson brought a state law claim for retaliation. His federal complaint specifically alleges in Count Two: "8. Parma's adverse employment actions toward Watson as alleged herein constituted retaliation against Watson in violation of the Ohio Revised Code Sections 4112.01 et seq. and 4112.99. * * *." {¶ 15} Moreover, Watson requested in his complaint that the federal court, "Find that Parma retaliated against Watson in violation of Title VII and Ohio Law."13 Therefore, Watson's claim that he did not bring a "purely state law" claim in his federal suit is not supported by the record. {¶ 16} In addition, it is evident the federal court did exercise pendent jurisdiction over the state law claim. In its opinion, the federal court noted that Watson was asserting both federal and state law claims. Thus, the record indicates Watson did bring a state claim in the federal court, and the federal court assumed pendent jurisdiction over the state claim. This is not a case where the trial court decided the federal case on the merits and dismissed the pending state claim without prejudice in order for the plaintiff to refile in state court. {¶ 17} Watson claims that if he had alleged his whistle-blower claim in his federal action, the federal court would have decided not to exercise its pendent jurisdiction over the claim once the federal Title VII claim was dismissed. We find this conclusion to be speculative. The federal court did exercise pendent jurisdiction over Watson's state retaliation claim. As we stated above, there is no mandatory rule that the federal court dismiss a state claim once the anchoring federal claim is dismissed. Instead, the federal court has discretion in determining whether to exercise its pendent jurisdiction. {¶ 18} In Lakewood Congregation of Jehovah's Witnesses,Inc., we held:14 "Unless it is clear that the federal court would have declined as a matter of its discretion to exercise jurisdiction over the state claim, that state action is barred in subsequent suits. Restatement of the Law 2d, Judgements (1982) 316, Section 87a, Illustration 1. The congregation has not provided proof that it brought the state claim to the federal court's attention, nor has it shown that the federal court would have declined to exercise jurisdiction over the state claim."15 {¶ 19} By failing to bring the claim before the federal court in the prior suit, we have no way of knowing whether the federal court would have exercised its pendent jurisdiction over the whistle-blower claim. As the Tenth District Federal Circuit court in Nwosun v. General Mills Restaurants16 stated, "If we were to participate in the speculative gymnastics required to determine whether a federal court would or would not have exercised its supplemental jurisdiction over a state claim never brought, we would be doing a disservice to the policy considerations res judicata protects."17 Therefore, we cannot speculate now what the trial court would have done. {¶ 20} Watson could have avoided this problem by joining all his claims in the federal suit, instead of attempting to split them between the federal and state courts. We conclude, given the circumstances, the trial court did not err by granting summary judgment in the hospital's favor. Watson's sole assigned error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Ann Dyke, A.J., and Frank D. Celebrezze, Jr., J., concur. 1 Watson v. Parma Community General Hosp. (N.D. Ohio, 2002), Case No. 1:01CV1816. 2 Baiko v. Mays (2000), 140 Ohio App. 3d 1, citing Smiddyv. The Wedding Party, Inc. (1987), 30 Ohio St. 3d 35; NortheastOhio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs. (1997),121 Ohio App. 3d 188. 3 Id. at 192, citing Brown v. Scioto Bd. of Commrs. (1993),87 Ohio App. 3d 704. 4 Temple v. Wean United, Inc. (1997), 50 Ohio St. 2d 317,327. 5 Dresher v. Burt, 75 Ohio St. 3d 280, 292-293,1996-Ohio-107. 6 Id. at 293. 7 United Mine Workers v. Gibbs (1966), 383 U.S. 715, 726,16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). 8 See Carnegie-Mellon Univ. v. Cohill (1988), 484 U.S. 343,350, 98 L. Ed. 2d 720, 108 S. Ct. 614 n. 7; Rosado v. Wyman (1970), 397 U.S. 397, 403-05, 25 L. Ed. 2d 442, 90 S. Ct. 1207. 9 Baer v. R F Coal Co. (C.A. 6, 1986), 782 F.2d 600, 603 (quoting Gibbs, 383 U.S. at 726); Roberts v. Troy (C.A. 6, 1985), 773 F.2d 720, 726; Huntington Mortgage Co. v. Shanker (1993), 92 Ohio App. 3d 144. 10 Aschinger v. Columbus Showcase Co. (C.A. 6, 1991),934 F.2d 1402, 1412, quoting Province v. Cleveland Press PublishingCo. (C.A. 6, 1986), 787 F.2d 1047, 1055. 11 Kale v. Combined Ins. Co. (C.A. 1, 1991), 924 F.2d 1161,1165; Shaver v. F.W. Woolworth Co., (C.A. 7, 1988),840 F.2d 1361, 1368; Delal v. Alliant Techsystems, (1996),934 P.2d 830. 12 Kale, supra. 13 Federal Complaint, page 3. 14 (1984), 20 Ohio App. 3d 338. 15 Id. at 340. 16 (C.A. 10, 1997), 124 F.3d 1255. 17 Id. at 1258.

2016-07-06 06:36:52.161651+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Defendant-Appellant Willard McCarley has appealed from the judgment of the Summit County Court of Common Pleas that found him guilty of aggravated murder. This Court reverses. I {¶ 2} On May 21, 2004, a secret indictment was filed against DefendantA-ppellant Willard McCarley for one count of aggravated murder, in violation of R.C. 2903.01(A), a special felony. The charges stem from the 1992 homicide of Charlene Puffenbarger. On June 10, 2004, Appellant entered a "not guilty" plea to the indictment. {¶ 3} On December 9, 2004, Appellant filed a motion in limine to exclude the introduction of evidence and testimony by prosecution witnesses proffered as experts in the area of DNA analysis. Appellant's motion stated that the State's "proposed DNA evidence and expert testimony in this matter does not meet the necessary standards to cause it to be relevant and reliable evidence[.]" Appellant moved for an Evidence Rule 104(A) hearing prior to trial to determine if the evidence met the proper standards under Evidence Rule 702. Appellant also filed a motion to suppress the DNA evidence. Appellant argued that said evidence was "taken in violation of the Fourth Amendment to the United States Constitution and Article I, § 14 of the Ohio Constitution[.]" {¶ 4} On December 20, 2004, the trial court denied Appellant's motion to exclude the DNA evidence. On January 12, 2005, Appellant filed a motion to suppress the following evidence: 1) any identifications of the offender by the victim's minor son; 2) testimony by Dr. Lord concerning statements made to her by said minor son; 3) any expert opinion by Dr. Lord, such as a clinical evaluation, of said minor son; and 4) any statements by the victim regarding her fear of Appellant. Appellant filed a supplemental motion in support of this motion on January 19, 2005. {¶ 5} On January 14, 2005, Appellant's motion to suppress the DNA evidence came before the trial court. The trial court found that under the totality of the circumstances there was probable cause for the search warrant and overruled Appellant's motion. {¶ 6} A jury trial commenced on January 24, 2005 and continued until February 2, 2005 at which time the jury retired for deliberation. On February 4, 2005, Appellant was found guilty of aggravated murder. On February 9, 2005, Appellant was sentenced to life imprisonment with parole eligibility after serving 20 full years of incarceration. {¶ 7} Asserting seven assignments of error, Appellant has appealed several of the trial court's procedural and evidentiary rulings. For ease of analysis, we first address Appellant's third assignment of error. II Assignment of Error Number Three "THE COURT COMMITTED REVERSIBLE ERROR BY VOUCHING FOR THE CREDIBILITY OF DR. DAWN LORD." {¶ 8} In his third assignment of error, Appellant has argued that the trial court erred when it commented on Dr. Lord's reputation in the presence of the jury. Specifically, Appellant has asserted that the trial court's comments bolstered Dr. Lord's credibility and prejudiced the defense. We agree. {¶ 9} In exercising his duty to control a criminal trial pursuant to R.C. 2945.03, the trial judge is to remain impartial and refrain from making comments which may influence a jury.State v. Boyd (1989), 63 Ohio App. 3d 790, 794. "[T]he judge must be cognizant of the effect of his comments upon the jury[.]"State v. Wade (1978), 53 Ohio St. 2d 182, 187, vacated and remanded on other grounds (1978), 438 U.S. 911, 98 S. Ct. 3138,57 L. Ed. 2d 1157. A judge's "participation by * * * comment must be scrupulously limited, lest the court, consciously or unconsciously, indicate to the jury its opinion on * * * the credibility of a witness." State ex rel. Wise v. Chand (1970),21 Ohio St. 2d 113, at paragraph three of the syllabus. Furthermore, "juries are highly sensitive to every utterance by the trial judge" and any comments by the trial judge must be appropriate under the circumstances. (Quotation omitted.) Wade,53 Ohio St.2d at 188. {¶ 10} In deciding whether a trial judge's comments were appropriate, we must determine whether the comments were prejudicial to the defendant's right to a fair trial. Id. InWade, the Ohio Supreme Court established that the following factors must be considered when determining whether a trial judge's remarks were prejudicial: "(1) The burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for, (3) the remarks are to be considered in light of the circumstances under which they are made, (4) consideration is to be given to their possible effect upon the jury, and (5) to their possible impairment of the effectiveness of counsel" Id; See, also, State v. Lute (Nov. 22, 2000), 9th Dist. No. 99CA007431, at 10. {¶ 11} The instant assignment of error stems from the actions of the trial judge during Dr. Lord's testimony. A review of the transcript reveals that throughout her testimony Dr. Lord voiced her concerns over testifying in the instant matter because her psychology license was under suspension. After a brief side-bar concerning whether letters/reports Dr. Lord sent to Detective Karabatsos could be read to the jury, the trial court made the following statement: "Dr. Lord has in front of her Exhibits 6, 7, and 8, letters purported to have been written by her back in 1992. She is going to be asked to read the contents of those letters to you, understanding she has no independent recollection of the treatment or what went into those particular letters. The purpose of sharing this with you is not to prove the truth of any matter contained therein, but only to the fact that Dr. Lord back in 1992 purported to do what is set forth in the letter." {¶ 12} The trial court then instructed Dr. Lord to read the letters and Dr. Lord asked that she be ordered to read them so that it would be clear for the record that she was not breaching the terms of her suspension from the practice of psychology. With some interruption by Dr. Lord, the trial judge responded: "Yes. Clearly the Court does not — the Court is well aware, Dr. Lord * * * of your long-standing reputation in the community. And we certainly hope you get reinstated one of these days." Dr. Lord then proceeded to read the letters to the jury. After Dr. Lord finished reading the letters, Appellant conducted a brief cross-examination. {¶ 13} Appellant has claimed the trial judge committed prejudicial error in its comments to Dr. Lord regarding her reputation and in his well wishes regarding a possible reinstatement. We must initially note that from our review of the entire transcript it is clear that the trial judge's comments to Dr. Lord were not made to persuade the jury or as a result of bias, rather they were made out of empathy for Dr. Lord's situation and to calm her fears of reprimand from the psychology board for testifying in this matter. Nonetheless, the issue before this Court is whether the comments were prejudicial, not the trial judge's intent. {¶ 14} To determine if the judge's comments were prejudicial we reviewed the record under the Wade standard, with the burden on Appellant to demonstrate prejudice. We initially note that this Court recognizes under Wade that the trial judge is in the best position to decide if a comment is prejudicial and when necessary he can make the appropriate corrective measures. However, we find that in the instant matter the effect of the judge's comments could only be seen upon review of the entire record, which was not possible when the judge reviewed his comments after Appellant's motion for a mistrial. {¶ 15} After considering the comments in light of the circumstances under which they were made, the possible effect of the comments on the jury, and their effect on Appellant's defense, we find that the trial judge's comments were prejudicial. It is clear from the record that Dr. Lord was not a strong witness for the State; she could not recall interviewing the minor child involved and she could not recall the minor child making the statements that were in the letters at issue. Moreover, from the beginning of her testimony it was obvious she was concerned about testifying; she openly voiced her concerns and even objected to some questions. Before hearing from Dr. Lord regarding the letters, the trial judge informed the jury that Dr. Lord would be reading the letters that were "purported to have been written by her back in 1992." Immediately before she read the letters, the trial judge commented that Dr. Lord had a "long-standing reputation in the community" and that the community in general hoped Dr. Lord would soon be reinstated to the practice of psychology. In light of the circumstances of this case, including subsequent events during the trial, such an endorsement went beyond polite banter and into the realm of prejudicial comments. {¶ 16} We find that the trial judge's statements made during the direct examination of this witness bolstered the credibility of the witness, especially since the witness could not remember the events to which she was testifying. The jury was presented with a witness that could not remember writing letters concerning eye-witness accounts of the murder and the judge commented that the witness had a long-standing reputation in the community. We find the judge's comments were likely interpreted by the jury as the judge finding Dr. Lord to be an honest, trustworthy, and competent witness; such a determination is for the jury to make without input from the judge. With the judge's comments in mind, it is not unreasonable to determine that the jury applied the comments regarding Dr. Lord to her overall testimony and the content of the letters.1 Our determination is evident from the fact that the jury requested Dr. Lord's letters during deliberations. {¶ 17} We are not persuaded by the State's arguments that Dr. Lord's credibility is not an issue because the letters were not treated as substantive evidence; the State relied on the contents of the letters throughout its case and Dr. Lord's testimony was a major portion of the State's evidence against Appellant. Moreover, the State specifically relied on the letters in its closing argument when it described the child's comments to Dr. Lord and reiterated that the letters showed the child had twice identified Appellant as the killer. We find it clear that the jury found Dr. Lord's presence and testimony significant. In essence, we find that the trial judge's comments regarding Dr. Lord resulted in the jury interpreting the judge's comments as "believe this witness and anything she has said before, including the content of the letters." {¶ 18} Another important factor under Wade is the impact of the comments on Appellant's cross-examination of Dr. Lord. We find that Appellant's counsel was impaired by the trial judge's comments because counsel had the daunting task of cross-examining a witness that the judge had essentially endorsed as being a credible witness and well regarded in the community. With the judge's comments fresh in the jury's mind, Appellant's counsel ran the risk of antagonizing the jury by vigorously questioning the already vouched for credibility of Dr. Lord. We recognize the State's argument that Dr. Lord testified on cross-examination that she did not recall writing the letters at issue, but we cannot find that her lack of memory reduced the influence of the trial judge's comments. The jury was presented with a witness that could not recall her past actions, letters that were purportedly written by the witness in 1992 that pointed to Appellant as the killer, and a trial judge's endorsement of said witness as a doctor with a long-standing reputation in the community. We find that the circumstances of this case demonstrate a great impairment to the defense. {¶ 19} Based on the foregoing, we find that Appellant has met his burden under the Wade standard and that the trial judge's comments were prejudicial to his right to a fair trial. Accordingly, Appellant's third assignment of error has merit. Assignment of Error Number One "THE COURT ERRED IN PERMITTING DR. DAWN LORD TO TESTIFY IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND IN VIOLATION OF THE SUPREME COURT DECISION CRAWFORD V. WASHINGTON." Assignment of Error Number Two "THE COURT ERRED IN PERMITTING DR. DAWN LORD TO READ HER REPORTS INTO EVIDENCE BECAUSE SHE WAS NOT A COMPETENT WITNESS OR A QUALIFIED EXPERT WITNESS AND BECAUSE HER REPORTS WERE INADMISSIBLE HEARSAY AND BECAUSE HER REPORTS CONTAINED INADMISSIBLE HEARSAY WITHIN HEARSAY FROM AN INCOMPETENT THREE YEAR OLD CHILD WITNESS." Assignment of Error Number Four "THE COURT ERRED IN PERMITTING HEARSAY EVIDENCE FROM FIVE DIFFERENT WITNESSES, PHYLLIS PUFFENBARGER, CHERYL SCHWEICKART, ROGER HERRINGTON, FRANCINE ANN CLARK, AND MICHELLE GREEN IN DIRECT VIOLATION OF THE DEFENDANT'S RIGHT TO CONFRONT HIS ACCUSERS AND IN VIOLATION OF OHIO RULES OF EVIDENCE INVOLVING HEARSAY." Assignment of Error Number Five "THE COURT ERRED IN ALLOWING PHYLLIS PUFFENBARGER TO TESTIFY AND IN ALLOWING THE PROSECUTION TO INTRODUCE INTO EVIDENCE A PHOTOGRAPH OF HER COAT IN VIOLATION OF THE SEPARATION OF WITNESSES ORDER AND IN VIOLATION OF THE DISCOVERY RULES." Assignment of Error Number Six "THE COURT ERRED IN FAILING TO CONDUCT A DAUBERT HEARING IN ORDER TO DETERMINE IF THE STATE'S D.N.A. EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY AS SAID D.N.A. RESULTS WERE NOT RELIABLE IN IDENTIFYING WILLARD S. McCARLEY AS THE PERSON WHO MURDERED CHARLENE PUFFENBARGER." Assignment of Error Number Seven "THE COURT ERRED IN PERMITTING EVIDENCE OF `OTHER ACTS' VIA THE TESTIMONY OF KIMBERLY PENNINGTON IN VIOLATION OF THE OHIO RULES OF EVIDENCE." {¶ 20} In his remaining assignments of error, Appellant has alleged various procedural and evidentiary errors. Given this Court's resolution of Appellant's third assignment of error, Appellant's remaining assignments of error are moot and we decline to address them. See App.R. 12(A)(1)(c). III {¶ 21} Appellant's third assignment of error is sustained. This Court declines to review Appellant's remaining assignments of error. See App.R. 12(A)(1)(c). The judgment of the trial court is reversed and the cause is remanded for proceedings consistent with this opinion. Judgment reversed, and cause remanded. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of 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 Appellee. Carr, J. concurs. Slaby, P.J. concurs in judgment only. 1 We reach this conclusion notwithstanding the trial judge's instruction to the jury prior to deliberation that if he said or did anything that the jury considered an indication of his or the Court's view they were instructed to disregard it. We do not find that under the facts and circumstances of this case the court's general, boiler-plate instruction cured the prejudice.

2016-07-06 06:36:52.226038+00

OPINION On February 7, 1959, appellant, Agnes Bowen, and appellee, Robert Bowen, were married. On January 6, 1997, appellant filed a complaint for legal separation. On March 26, 1997, appellant filed a first amended complaint for divorce. The parties' principle asset was the marital home. Appraisals were conducted in an effort to value the property. A final hearing was held on June 25, 1998. By agreement, the parties valued the property at $72,400. By decree of divorce filed same date, the trial court granted the divorce and awarded the marital property to appellee subject to a $36,200 payment to appellant per the parties' agreement. On November 2, 1998, appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B) claiming "newly discovered evidence." A hearing was held on April 14, 1999. By judgment entry filed April 22, 1999, the trial court denied said motion. Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I THE TRIAL COURT ERRED WHEN IT OVERRULED THE MOTION OF APPELLANT, AGNES BOWEN, TO SET ASIDE A PORTION OF THE PROPERTY SETTLEMENT THAT GROSSLY UNDER COMPENSATED THE PLAINTIFF/APPELLANT BASED UPON NEWLY DISCOVERED EVIDENCE. I Appellant claims the trial court erred in denying her motion for relief from judgment. We disagree. A movant from relief from judgment under Civ.R. 60(B) must demonstrate the following: (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. GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976),47 Ohio St. 2d 146, paragraph two of the syllabus. 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. Appellant's request for relief from judgment was based upon "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B)." See, Civ.R. 60(B)(2); Holden v. Ohio Bur. of Motor Vehicles (1990), 67 Ohio App. 3d 531. Appellant claims she just discovered the marital home valued at trial at $72,400 is actually worth $125,000 to $129,000. Prior to trial, an appraisal by agreement of both counsel valued the marital property at $72,400. T. at 20; Plaintiff's Exhibit 1. Appellant was dissatisfied with this appraisal because several acquaintances and family members had opined the value was too low. T. at 22, 43-46. Prior to trial, appellant had her own appraisal done and the value given by her appraiser was $70,500. T. at 21, 24, 46-47; Plaintiff's Exhibit 2. As to this appraisal, appellant "felt like tearing it up, because I didn't go along with him." T. at 24. The agreed value of the marital home at the final hearing was the amount of the first appraisal, $72,400. T. at 47, 50-51. The option for either party to purchase the property or sell the property to a third person was available. T. at 47-48. After the final hearing but before final settlement, appellant had a market analysis done by Ernest Cavanaugh, a real estate salesman, who valued the selling price of the property at $125,000 to $129,500. T. at 28-30, 63; Plaintiff's Exhibit 3. Mr. Cavanaugh opined the property alone without the home and the barn could sell for $35,000 to $50,000. T. at 64. The property with the barn only could sell for about $70,000 to $80,000. Id. Mr. Cavanaugh criticized the two appraisals. T. at 66-71. The two appraisers testified at the hearing and remained convinced of their original values. T. at 111, 131. We concur with the trial court that the issue of the marital property's value had been raised and argued by appellant and was known to her prior to her signing the final decree. Prior to signing the decree containing the $72,400 agreed value, appellant had talked to her attorney and several acquaintances and family members about the property's value. Appellant also had her own appraisal conducted. Despite the opinions she received about the value being too low, appellant signed the divorce decree. The fact that appellant managed to find a real estate salesman who valued the selling price of the property higher than the agreed value after the signing of the decree is not "newly discovered evidence which by due diligence could not have been discovered in time." Mr. Cavanaugh is a member of the community and has been a realtor for six years. T. at 57. Upon review, we find the trial court did not err in denying appellant's motion for relief from judgment. The sole assignment of error is denied. The judgment of the Court of Common Pleas of Fairfield County, Ohio, Domestic Relations Division is hereby affirmed. By FARMER, J. GWIN, P.J. and HOFFMAN, J. concur.

2016-07-06 06:36:52.274992+00

OPINION {¶ 1} Plaintiffs-appellants, Erin Hill and her parents, Donald and Debra Hill, appeal a decision of the Montgomery County Court of Common Pleas granting summary judgment against them and in favor of defendants-appellees, Primed Pediatrics and Dr. Anna Cata, with respect to appellants' negligence claim. {¶ 2} On June 12, 2002, Erin Hill, who was then 17 years old, went to an appointment she had with Dr. Anna Cata of Primed Pediatrics, in order to receive a meningitis immunization vaccination that she needed to attend the Ohio State University in the fall of 2002. When Erin arrived, she was brought into an examination room by Nurse Mary Lynn Voss. Voss did a finger prick on Erin to draw some blood for testing, and then gave her the vaccination. Voss made a notation on her chart and left the examination room. {¶ 3} Within two minutes after receiving the vaccination, Erin began to feel light-headed and nauseous. When she realized she was going to vomit, Erin stood up to go to the sink. The next thing Erin remembered was waking up on the examining room floor with Dr. Cata and Nurse Voss checking on her. As a result of her fall, Erin sustained injuries to her face, nose, teeth, head and neck. {¶ 4} On June 14, 2004, Erin and her parents, Donald and Debra Hill, filed a complaint against Primed Pediatrics, Dr. Cata, and Nurse Voss, alleging that Voss was negligent for failing to remain with Erin after giving her the meningitis immunization vaccination to ensure that she suffered no adverse reaction to the vaccination, and that Primed Pediatrics and Dr. Cata were responsible for Voss's negligence under a theory of respondeat superior. Erin sought compensation for her injuries, while Donald and Debra sought damages for lost wages while attending to Erin's care and for loss of Erin's consortium as a result of her injuries. Appellees filed an answer to appellants' complaint. {¶ 5} On October 5, 2004, appellees moved for summary judgment, arguing that: (1) appellants' complaint was time-barred because it was not brought within the one-year statute of limitations for medical claims contained in former R.C.2305.11(B)(1) [now R.C. 2305.113(A)]; and (2) appellants failed to present expert testimony to rebut Dr. Cata's sworn affidavit establishing that she and Nurse Voss met the applicable standards of care in these circumstances. {¶ 6} Appellants responded to appellees' summary judgment motion with a memorandum contra, arguing that: (1) their complaint was not untimely because their claim was governed by the two-year statute of limitations for bodily injury actions contained in R.C. 2305.10, as opposed to the one-year statute of limitations applicable to medical malpractice claims; and (2) appellants did not need to present expert testimony to support their claims because it was a matter of "common knowledge" that Nurse Voss should not have left Erin unattended after administering the meningitis immunization vaccination to her. {¶ 7} On February 2, 2005, the trial court issued a decision and entry granting appellees' motion for summary judgment. {¶ 8} Appellants, acting pro se, now appeal from the trial court's decision and entry, raising the following assignment of error: {¶ 9} "THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS-APPELLEES ON THE BASIS THAT THE CAUSE OF ACTION ALLEGED IN THE COMPLAINT IS ONE OF MEDICAL MALPRACTICE, RATHER THAN ONE OF NEGLIGENCE."1 {¶ 10} Appellants essentially argue that their cause of action was one for ordinary negligence rather than medical malpractice, and, therefore, the two-year statute of limitations contained in R.C. 2305.10(A), which governs bodily injury actions, should have been applied to this case, rather than the one-year statute of limitations contained in former R.C.2305.11(B) [now R.C. 2305.113], which governs medical malpractice claims. {¶ 11} We disagree with this argument. {¶ 12} A trial court may award summary judgment to a party that moves for it, if that party demonstrates that (1) there is no genuine issue of material fact remaining 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 that conclusion is adverse to the party against whom the motion for summary judgment is made, with the nonmoving party being entitled to have the evidence construed most strongly in his or her favor.Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64,66. In this case, the trial court properly awarded summary judgment to appellees on appellants' claims. {¶ 13} Former R.C. 2305.11(B)(1), which was in effect on the date of Erin's accident provided, in pertinent part, "* * * [A]n action upon a medical * * * claim shall be commenced within one year after the action accrued[.]" Former R.C. 2305.11(D)(3) defined the term "medical claim" as meaning "any claim that is asserted in any civil action against a physician, * * * against any employee or agent of a physician, * * * or against a registered nurse * * * 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." Id. {¶ 14} Former R.C. 2305.11(D)(7) defined the term "derivative claims for relief" as "includ[ing], but * * * not limited to, claims of a parent * * * of an individual who was the subject of any medical diagnosis, care, or treatment * * * that arise from that diagnosis, care, [or] treatment, * * * and that seek the recovery of damages for any of the following: {¶ 15} "(a) Loss of society [or] consortium * * *; {¶ 16} "(b) Expenditures of the parent * * * for medical * * * care or treatment * * * {¶ 17} provided to the individual who was the subject of the medical diagnosis, care, or treatment[.]" {¶ 18} The provisions in former R.C. 2305.11(B)(1) and (D)(3) and (7) are now codified in R.C. 2305.113(A) and (E)(3) and (7), respectively. {¶ 19} In this case, appellants' claims were based on an allegation that Nurse Voss was negligent for leaving Erin unattended after administering a meningitis immunization vaccination to her. This claim clearly fits within the term "medical claim" as that term is defined in former R.C.2305.11(D)(3), since it is a claim that "arises out of the medical * * * care or treatment of any person." Therefore, pursuant to former R.C. 2305.11(B)(1), appellants were obligated to bring their action against appellees "within one year after the action accrued." {¶ 20} Appellants' cause of action accrued on June 12, 2002, the day of Erin's fall. However, because Erin was a juvenile at that time, appellants' cause of action did not accrue until she turned 18 years old on July 17, 2002. See R.C. 2305.16 (tolling of statute of limitations due to minority or unsound mind). Furthermore, former R.C. 2305.11(B)(1) [now R.C. 2305.113(B)] provides that a person who has a medical claim may extend the one-year statute of limitations by 180 days, by serving written notice on the person who is subject to that claim, prior to the expiration of the one-year period. In this case, however, appellants never provided such notice. Thus, appellants needed to bring their cause of action no later than July 17, 2003, or one year after Erin's 18th birthday. Because appellants did not bring their claims until June 14, 2004, the trial court was correct in finding that appellants' claims were barred under the applicable statute of limitations in former R.C. 2305.11(B)(1). {¶ 21} Appellants argue that their claim was not a claim for "medical malpractice," because the accident was not "the result of incorrect medication, improper administering of medication, nor physical reaction to the medication." Appellants argue that their claim is simply a claim for ordinary negligence "because the accident occurred on [appellees'] premises and the features of their service and furniture contributed to the severity of the injury. The fainting occurred in the [appellees'] office and the resulting injury was the result of being placed on an unnecessarily tall table rather than a chair that was in the room. And the nurse was careless for ignoring [Erin's] expression of concern about getting a shot after all these years." {¶ 22} Despite their protestations to the contrary, it is clear from appellants' own arguments that their claim falls squarely within the definition of the term "medical claim," as set forth in former R.C. 2305.11(D)(3). Furthermore, to the extent that appellants are now trying to focus attention on the furniture that was in appellees' examining room, we note that appellants did not raise this argument in the proceedings held in the trial court, and, therefore, have waived this argument for purposes of appeal. Schade v. Carnegie Body Co. (1982),70 Ohio St. 2d 207, 210. {¶ 23} Appellants also assert that the trial judge should have recused himself since he works closely with Judge Thomas Grady of the Second District Court of Appeals, and Judge Grady is the father of Dr. Cata. However, intermediate appellate courts such as this one have no jurisdiction to consider claims of bias against a trial judge; instead, such claims must be brought to the Chief Justice of the Ohio Supreme Court. See Beer v.Griffith (1978), 54 Ohio St. 2d 440, 441-442. {¶ 24} Appellant's assignment of error is overruled. {¶ 25} The trial court's judgment is affirmed. Walsh and Young, JJ., concur. JUDGMENT ENTRY The assignment of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed. It is further ordered that a mandate be sent to the Montgomery County Court of Common Pleas for execution upon this judgment and that a certified copy of this Judgment Entry shall constitute the mandate pursuant to App.R. 27. Costs to be taxed in compliance with App.R. 24. 1 Appellants actually failed to raise a formal assignment of error in their brief. As a result, appellees moved to strike appellants' brief. This court declined to do so, after recognizing that appellants were acting pro se and therefore were entitled to some latitude. Therefore, we accepted appellants' brief, stating that we would construe it as raising the assignment of error set forth above.

2016-07-06 06:36:52.312344+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant-appellant Aliyu Omar appeals from his convictions after a trial to the bench on two counts of gross sexual imposition. {¶ 2} Appellant asserts his convictions are against the manifest weight of the evidence. Since a review of the record does not support his assertion, his convictions are affirmed. {¶ 3} The record reflects appellant is a citizen of Ghana who first came to this country in 1979 to participate in a two-year work-related training program. Appellant eventually returned in 1983 to attend college in Ohio. Although he never completed his degree program, appellant began a career in religious teaching in 1985, married in 1991, and remained in this country; he did not receive legal immigration status until 1997. {¶ 4} The woman appellant married, L, was a divorcee.1 L had two grown sons, one of whom had a wife of his own, and two younger children. Appellant met L when she enrolled the two younger children in the Islamic school in which he taught. L's youngest child, her daughter, N, was only three years old when L married appellant.2 Since N had little contact with her biological father, appellant held the role of her male parent. {¶ 5} At the time of her marriage to appellant, L owned a duplex located on Trafalgar Avenue in Cleveland In 1995, L rented out the downstairs portion and utilized for her own family the upstairs portion. Her oldest son lived with his wife in one of the bedrooms, while L, appellant, and L's two younger children shared another. N and her brother each had small beds in the room; N, however, often sought comfort in the parental bed. Thus, it was not unusual for her to sleep there. {¶ 6} From the testimony of the state's witnesses at appellant's trial, it can be gleaned the incidents which resulted in appellant's convictions occurred sometime in 1996 or 1997. N recalled being in the parental bed for a nap. She was alone with appellant, lying on her back, when she "felt him in [her] shirt." On the first occasion, appellant's hand went under the T-shirt N was wearing and his index finger and middle finger were placed on either side of her nipple. Appellant held the nipple with those two fingers while he brushed his thumb against it in a circling motion. {¶ 7} N lay still, because she "didn't know what to do." After approximately a minute, the touching stopped, and N felt "nasty" about the episode, so she remained silent. Appellant thereafter repeated this same activity "about two other" times, but his sexual assaults upon N did not stop with the touching of her breast; rather, he instituted another type. {¶ 8} On that occasion, N again lay on her back on the parental bed when she felt one of appellant's fingers enter her clothing; she "partially" opened her eyes so she could see what he was doing. She covertly watched as he placed his index finger "between her legs," made contact with the area just above her clitorus, and moved his finger in an "up and down" motion. Once again, the episode lasted only "about a minute or so," and N did not know how to respond. She felt "uncomfortable" and "afraid;" after appellant left her alone, she began to feel as though she somehow must have "provoked" appellant's behavior. {¶ 9} Shortly after that incident, L, appellant, and the two younger children moved to the lower portion of the house in order that L's older son and his family could have the upper portion to themselves. N's relationship with appellant began to change. Although N accorded appellant respect in the school setting as the school's principal, L noticed N avoided appellant at home. Additionally, N wanted a lock for her bedroom door. Eventually, N began to challenge appellant's authority; she especially resented his lectures on appropriate female behavior. {¶ 10} In late spring 2002, L left Cleveland for a week-long visit to New Mexico. While she was away, N spent much of her time with her older brother's family. She ultimately confided in her sister-in-law that appellant had "messed with" her. N's sister-in-law encouraged her to tell L. {¶ 11} L believed her daughter's disclosure, since N's account was similar to her own experience of appellant's preferred type of sexual contact. In view of the family's religiousness and appellant's significant status in the Islamic community, L took N first to the other leaders of their mosque to request advice. Upon hearing N's description of appellant's actions, the men decided N should confront appellant about the matter in their presence. The confrontation took place in L's home. Only after appellant denied N's accusations in front of the mosque leaders did L contact an Islamic social worker, who, in turn, contacted a police detective who was also a member of the mosque. {¶ 12} Appellant ultimately was charged with two counts of gross sexual imposition upon a minor, R.C. 2907.05.3 Appellant executed a waiver of his right to jury trial; thus, his case was tried to the bench. The state presented the testimony of N, L, and the detective. Appellant elected to testify in his own behalf and also presented the testimony of several character witnesses. {¶ 13} Thereafter, setting forth its analysis of the evidence in open court, the trial court found appellant guilty on both counts. Appellant eventually received a sentence of concurrent terms of three years incarceration for each conviction. {¶ 14} Appellant presents the following single assignment of error for this court's review: {¶ 15} "I. Defendant-appellant's convictions were contrary to the manifest weight of the evidence." {¶ 16} Appellant asserts that since N's testimony was uncorroborated by any physical evidence, the weight of the evidence supports a conclusion her story was fabricated. Appellant further asserts some comments made by the trial court during his sentencing hearing provide proof the trial court improperly weighed one defense witness' testimony when it determined his guilt. This court disagrees. {¶ 17} With regard to an appellate court's function in reviewing the weight of the evidence, it must be determined from the "entire record" that in resolving conflicts in the evidence, the trier-of-fact "clearly lost its way" and created a "manifest miscarriage of justice;" cases in which this occurs are "exceptional." State v. Thompkins, 78 Ohio St. 3d 380, 387,1997-Ohio-52, citing State v. Martin (1983),20 Ohio App. 3d 172. This court thus remains mindful that matters of credibility are reserved primarily for the trier-of-fact. State v. DeHass (1976), 10 Ohio St. 2d 230, paragraph one of the syllabus. {¶ 18} The trial court made several references to the relative credibility of the evidence as the basis for its determination of appellant's guilt. After a lengthy preamble, the court stated in pertinent part as follows: {¶ 19} "The phrase that comes to mind * * * about the role this defendant had in his community as being a religious leader, a teacher, a principal, and stepfather, in this case is[`]wolves in sheep's clothing.['] * * * [H]e stands before the court to be judged only on the evidence presented in the case * * * and the court must look neutrally at all the evidence that's been presented. {¶ 20} "The defendant has blamed the child * * * and suggested that the court should believe that a young girl of Muslim faith would make these charges against someone because she no longer wanted to abide by a Muslim stepfather's rule and the dictates of his religious beliefs. I find this preposterous considering * * * that the child went before the Muslim council, which was a council made up primarily of men, to make her charges when the worst punishment * * * he could have received had he been found guilty by the council was a flogging * * *. {¶ 21} "* * * The defendant was correct in stating that nobody here knows what happened except for the two people who were involved. * * * {¶ 22} "Crimes of this sort are committed often privately and deliberately out of sight of others. * * * {¶ 23} "The court has had the opportunity to observe the testimony of both of those persons, to hear their words, to observe their body language and demeanor, to hear the inflection and tones of voices and to watch them throughout the case. The defendant's testimony was riddled with inconsistencies, and the court finds it not to be credible. * * * Given all of the testimony and all of the evidence presented and the court's opportunity to witness that testimony, as I have listened to the evidence, I am firmly convinced without any question [of the defendant's guilt] * * *." {¶ 24} The trial court's comments thus demonstrate it exercised its prerogative to believe N's account of the incidents. The transcript makes it apparent that it was difficult for N to relive these incidents, and her account was corroborated not only by the testimony of her mother, but also, in certain respects, by appellant's testimony. {¶ 25} Appellant's witnesses' testimony seemed rehearsed in contrast to that of the state's witnesses; every one of the defense witnesses characterized appellant's reputation as "impeccable." Moreover, as noted by the trial court, appellant's explanations for N's accusations became more far-fetched the longer he testified. {¶ 26} Appellant suggests that the trial court made certain comments during his sentencing hearing that undermine the legitimacy of his convictions. A review of the challenged remarks indicate the trial court believed appellant had attempted to sway its impartiality by summoning a member of the city cabinet as a defense witness. Those same remarks made it clear, however, that if such an attempt had been made, it remained unsuccessful. Consequently, appellant's suggestion is rejected. {¶ 27} Since the record, therefore, supports the trial court's assessment of the evidence, appellant's assignment of error is overruled. State v. Fountain, Cuyahoga App. No. 81833, 2003-Ohio-1961; State v. Edwards, Cuyahoga App. No. 81351, 2003-Ohio-998; State v. Glass, Cuyahoga App. No. 81607, 2003-Ohio-879. {¶ 28} Appellant's convictions are affirmed. Michael J. Corrigan, A.J., and Ann Dyke, J., concur. 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 Cuyahoga County Court of Common Pleas 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. 1 Pursuant to the policy of this court, the identity of the victim is shielded; thus, in this opinion, she and her mother are referred to by their initials. 2 N was born on August 27, 1988. 3 Originally, the first count of the indictment against appellant charged him with the offense of rape; the state amended the charge to gross sexual imposition prior to appellant's trial.

2016-07-06 06:36:52.338497+00

OPINION Plaintiff-appellant, EFA Associates, Inc., appeals from a judgment of the Ohio Court of Claims finding that defendant-appellee, Department of Administrative Services ("DAS"), did not breach the terms of its printing contract with plaintiff. The state of Ohio's Office of State Printing, part of DAS, provides printing services to numerous state agencies, and it contracts on their behalf to obtain printing services from outside vendors. In 1996, DAS allowed minority-owned business enterprises to competively bid on a two-year term contract to provide book printing services for various state agencies from October 7, 1996 to October 6, 1998. The term contract included printing and binding of booklets. The printing services, also called presswork, involved running large sheets of paper through a press that prints text, provided by DAS, on both sides of the paper to create multiple-page sheets called "press forms." Depending on the size of the press and the size of the pages to be printed, a press form may contain four, eight or 16 separate printed pages of text on a single sheet of paper. A "half-size" press is able to print a press form on 17 1/2; inch by 22 inch paper; a "full size" press is able to print press forms on paper that is twice as large, 35 inches by 22 inches. If the pages of text to be printed on the press form are letter size, or 8 1/2; inches by 11 inches, a half-size press can print four separate letter-size pages of text on each side of a press form, resulting in an eight-page press form. In comparison, a full-size press can print eight separate letter-size pages of text on each side of a press form, resulting in a 16-page press form. In the bindery operation, each press form is "folded" so that the pages appear in the correct order and the edges of the pages are cut. The result is called a "signature." An eight-page signature, four separate pieces of paper printed on the front and back, will create eight pages in a book; a 16-page signature will render 16 pages in a book. Thus, 16 pages in a book can be created using one 16-page signature, two eight-page signatures, or four four-page signatures. After the requisite number of signatures have been made to create the number of pages that will comprise a book, the signatures are bound with a cover into a finished booklet. Prior to letting the term contract at issue for bid, DAS was aware most minority printing contractors had half-size presses, not full-size presses. Therefore, as an accommodation, the bid specifications asked for bidders to submit unit prices for printing eight-page press forms for letter-size pages that can be printed on half-size presses; it did not request pricing for printing 16-page press forms for letter-size pages, as those cannot be printed on half-size presses. The bid specifications, however, requested bidders to submit unit prices for "folding" eight-page and 16-page letter-size signatures because paying at the 16-page rate generally is more cost efficient than the eight-page rate. DAS held pre-bid meetings plaintiff attended where, according to DAS, the ordering, pricing and payment procedures were explained to the bidders. The competitive sealed bid ("CSB") form on which bidders submitted their bids to DAS expressly notified prospective bidders that "the state's requirements for itemizing and invoicing work produced under this contract often differ from standard commercial practices." To allow DAS to determine the lowest overall bid for the term contract, the bidders submitted prices on their CSB for the various printing and binding services on a line item basis which the bidders weighted and multiplied, based on DAS' estimate of items to be purchased over the term of the contract. The CSB's submitted by the three bidders were opened on August 9, 1996, with plaintiff, a minority-owned printing business in Dayton, Ohio, submitting a bid with the lowest overall amount of $410,301.67. Morris Printing submitted a bid with an overall amount of $888,470.09, and Graphic Action submitted a bid with an overall amount of $1,098,725.20. Because plaintiff's bid was significantly lower than the others, DAS contacted plaintiff prior to awarding the contract to advise plaintiff of its low bid and to ask plaintiff to confirm its prices. Plaintiff confirmed its prices on August 12, 1996. On September 25, 1996, representatives of DAS visited plaintiff's printing facility to review the bid, go over contract procedures, and determine whether plaintiff had the equipment capacity to handle the contract. Despite DAS' concerns that plaintiff did not have a printer with enough capacity to handle the contract, plaintiff was ultimately awarded the term contract. DAS issued several purchase orders to plaintiff from October to December 1996 for various jobs plaintiff was to perform under the contract. As provided in Paragraph 47 of the contract, DAS supplied the paper for the printing jobs. For the first two jobs, DAS sent 17 1/2; inch by 22 inch paper, which fit plaintiff's presses. Thereafter, however, DAS sent standard stock size paper, 35 inches by 22 inches, that plaintiff was required to cut in half for use on its presses. According to DAS, contractors routinely cut full size paper stock, if necessary, to fit its press. Pursuant to the express terms of Paragraph 62 of the contract, no charges were paid to plaintiff for cutting or slitting paper prior to presswork. Plaintiff did not reject the full-size paper and did not request payment for cutting it. Plaintiff experienced difficulty in keeping up with the volume of work and, in February 1997, asked to be excused from the two-year contract. DAS allowed plaintiff to withdraw without penalty. A dispute subsequently arose between the parties regarding discrepancies in pricing between certain purchase orders DAS issued and invoices plaintiff submitted for the work plaintiff performed pursuant to the purchase orders. The first two purchase orders DAS issued to plaintiff specified that printing would be paid at the eight-page press form rate of $8 per 1,000 press forms and "folding" would be paid at the eight-page signature rate of $29.64; those prices reflected the unit prices plaintiff quoted for those items on its CSB. Upon completing those two jobs, plaintiff submitted invoices that reflected the quantities and unit prices stated on the purchase orders, and plaintiff ultimately was paid accordingly. The remaining purchase orders DAS issued specified printing would be paid at the eight-page press form rate of $8, but folding would be paid at the 16-page signature rate of $30.95, the unit price plaintiff quoted on its CSB for 16-page folding of letter-size paper. When plaintiff completed those remaining jobs, plaintiff submitted invoices, after the contract had terminated, that were inconsistent with the purchase orders. Specifically, plaintiff invoiced DAS for two foldings at the eight-page signature rate for each 16-page signature folding specified on the DAS purchase order. For example, if a purchase order stated DAS would pay for 100 signatures at plaintiff's 16-page signature rate of $30.95, for a total price of $3,095, plaintiff billed DAS for 200 signatures at its eight-page signature rate of $29.64, for a total invoice price of $5,928 for the folding work. Thus, plaintiff's invoice for folding 1,600 pages would be almost twice the amount DAS' purchase order stated DAS would pay for the folding work. DAS withheld payment from plaintiff until plaintiff revised its invoices to match the purchase order prices and quantities DAS specified, and DAS ultimately paid the revised amount to plaintiff. Although plaintiff revised its invoices accordingly, it reserved the right to collect the amounts it claimed to be due and owing. It thereafter commenced this action for breach of contract, asserting DAS wrongfully withheld full payment of the invoices plaintiff submitted, and claiming DAS owed plaintiff $43,550.69 plus interest for amounts plaintiff originally invoiced but DAS did not pay. The central issue concerned the appropriate price plaintiff was to be paid for "folding": whether plaintiff should have been paid at the rate for folding 16-page signatures, the price DAS specified it would pay for the work, or whether plaintiff should have been paid at double the eight-page signature rate, as plaintiff asserted in its breach of contract claim. During the bench trial held on plaintiff's action for breach of contract, DAS entered a stipulation it owed plaintiff an as yet undetermined amount, later stipulated to be $8,539.35 plus prejudgment interest, on one of its purchase orders. The trial court indicated it would include the stipulated amount in favor of plaintiff in its judgment. On July 24, 2001, the trial court entered judgment for DAS. In its decision, the trial court found a contract existed, its terms were clear and unambiguous, and DAS did not breach the contract as plaintiff asserted. The trial court concluded that "[i]n compensating plaintiff for folding at the sixteen-page signature rate and refusing to reimburse plaintiff for folding double at the eight-page signature rate, defendant was simply holding plaintiff to the price it listed on the original bid and the specifications outlined in the various purchase orders." (Decision, 3-4.) The trial court neglected to include in its judgment the stipulated amount of $8,539.35 plus interest in favor of plaintiff. Plaintiff appeals and assigns nine errors. Plaintiff, however, fails to argue the assignments of error separately in its brief, as required under App.R. 16(A). See, also, App.R. 12(A)(2). To facilitate an analysis of plaintiff's assignments of errors, we present them as plaintiff argued them in its brief: I. The trial court erred in failing to enter judgment awarding plaintiff $8,539.35 plus interest, in accordance with the parties' stipulation. II. The trial court erred in finding, as a matter of law, that DAS had not breached the terms of the printing contract. III. The trial court erred when it used parol evidence to interpret terms of the printing contract it had found to be clear and unambiguous. IV. The trial court erred in finding: (1) plaintiff did not have capacity to fold 16-page signature forms, (2) plaintiff had to cut 16-page signatures in half and then fold them as two 8-page signatures, (3) plaintiff's unit prices for folding were substantially below other bidders, and (4) unit pricing structures for folding were discussed at a pre-bid meeting. In its first assignment of error, plaintiff asserts the trial court erred in failing to incorporate into the court's judgment the parties' stipulation, filed on April 16, 2001, that DAS owes plaintiff $8,539.35, plus prejudgment interest from March 3, 1997 to the date of judgment, on DAS' purchase order 7P1195. DAS concedes it owes that amount to plaintiff for purchase order 7P1195, and agrees the judgment should have included the amount. Plaintiff's first assignment of error is sustained. In its second assignment of error, plaintiff asserts the terms of the printing contract are clear and unambiguous and the trial court erred in finding as a matter of law that DAS had not breached Paragraphs 47 and 62 of the printing contract. Plaintiff contends: (1) pursuant to the plain language of Paragraph 47 of the contract, DAS should have furnished paper to plaintiff that was 17 1/2; inches by 22 inches in size as the "appropriate" size paper for plaintiff's half-size press, and (2) pursuant to the plain language of Paragraph 62 of the contract that states "[t]he contractor shall charge for binding operations from the appropriate prices itemized in the contract," plaintiff should have been paid the unit price itemized in the contract for folding an eight-page signature form when it performed the work of folding an eight-page signature form. Plaintiff maintains its interpretation of the contract provisions is the only reasonable interpretation, but asserts if any other interpretation is reasonable, then by law the contract is ambiguous and must be construed against DAS, the party who drafted it. To prove a breach of contract claim, a plaintiff must show: (1) the existence of a contract, (2) performance by the plaintiff, (3) breach by the defendant, and (4) damage or loss to the plaintiff. Allied Erecting Dismantling Co. v. Uneco Realty Co. (2001), 146 Ohio App. 3d 136, 142. Plaintiff argues extensively on appeal that DAS breached Paragraph 47 of the contract when it failed to provide plaintiff with 17 1/2; inch by 22 inch paper; instead, DAS provided paper that was 35 inches by 22 inches in size, which plaintiff had to cut for use on its presses. Paragraph 47 of the contract states in part: PAPER FURNISHED BY THE STATE: When DAS furnishes paper, the kind and quantity of paper will be specified for each order. Paper will be furnished in the most appropriate standard mill sizes for each order, and the equipment on which its production is planned. Even assuming DAS breached Paragraph 47 of the contract by failing to furnish the "most appropriate" size paper, plaintiff expressly agreed in the trial court, in response to DAS' request for admissions, that plaintiff did not seek damages in this lawsuit for any expenses associated with cutting paper DAS delivered to it under the term contract. (Plaintiff's Response to Defendant's Request for Admission No. 2.) Plaintiff's president, Edward Anthony, testified in accord. (Tr. I, 104-105, 174.) He further stated he was aware of the provision in the contract that expressly states no charges would be paid for cutting paper prior to presswork, and testified he did not request payment from DAS for cutting the paper to fit plaintiff's presses. (Tr. I, 104-105.) See, also, Paragraph 62 of Contract ("No charges for cutting or slitting paper prior to presswork shall be paid"). Damages are an essential part of a breach of contract claim, and without them plaintiff cannot maintain a claim for breach of contract. Metropolitan Life Ins. Co. v. Triskett Illinois, Inc. (1994),97 Ohio App. 3d 228, 235 ("To recover on a breach-of-contract claim, the claimant must prove not only that the contract was breached, but that the claimant was thereby damaged"). See, also, Dulaney v. Jallaq (1998), Franklin App. No. 98AP-227 (holding breach of contract claim is irrelevant without damages). Accordingly, to the extent plaintiff argues DAS breached Paragraph 47 of the term contract by providing plaintiff with "inappropriate" size paper for plaintiff's presses, plaintiff's claim fails because it failed to prove damages arising from the alleged breach. Plaintiff additionally contends in its second assignment of error, that DAS breached the clear and unambiguous terms of Paragraph 62 of the contract, which states in pertinent part: BINDERY: The contractor shall charge for bindery operations from the appropriate prices itemized in the contract. * * * The contractor shall be required to perform all bindery operations itemized as specification in the contract. Plaintiff asserts the price plaintiff charged for folding eight-page signatures was the "appropriate price" pursuant to the plain language of Paragraph 62 of the contract because it was the price plaintiff itemized on its CSB for that work. Contending the language of the contract is clear and ambiguous and plaintiff's interpretation of the contract terms is the only reasonable interpretation, plaintiff further asserts DAS' interpretation, adopted by the trial court, is unreasonable in holding plaintiff should be paid for folding a 16-page signature when in fact plaintiff folded eight-page signatures. Plaintiff maintains that, as a result, DAS breached the contract when it refused to pay plaintiff the "appropriate" eight-page folding price for doing the eight-page signature folding work. The construction of a written contract is a matter of law for the court. Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St. 2d 241; McConnell v. Hunt Sports Ent. (1999), 132 Ohio App. 3d 657, 675. "A Government contract should be interpreted as are contracts between individuals, with a view to ascertaining the intention of the parties and to give it effect accordingly, if that can be done consistently with the terms of the instrument." S M Constructors, Inc. v. City of Columbus (1982), 70 Ohio St. 2d 69, 71, quoting Hollerbach v. United States (1914), 233 U.S. 165, 171-172, 34 S. Ct. 553. Generally, the terms of a contract are to be given their ordinary meaning unless manifest absurdity results or some other meaning is clearly evidenced from the face or overall content of the contract. Shifrin v. Forest City Enterprises, Inc. (1992), 64 Ohio St. 3d 635, 638; McConnell, supra. When the terms of the contract are unambiguous and clear on their face, the court does not need to go beyond the plain language of the contract to determine the rights and obligations of the parties and the court must give effect to the contract's express terms. DiGioia Bros. Excavating, Inc. v. Cleveland Dept. of Public Utilities, Division of Water (1999), 135 Ohio App. 3d 436, 446. A writing, or writings executed as part of the same transaction, will be read as a whole, and the intent of each part will be gathered from a consideration of the whole. Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth. (1997), 78 Ohio St. 3d 353, 361; McConnell, supra. Although plaintiff contends this court need apply only the plain language of Paragraph 62 to conclude as plaintiff asserts, that the "appropriate price" to be paid plaintiff is the eight-page folding rate plaintiff itemized in its CSB, we are required to read the provision regarding "appropriate price" in pari materia with the other pertinent provisions that are part of the term contract. Foster Wheeler; Mesarvey, Russell Co. v. Boyer (1992), Franklin App. No. 91AP-974. Accordingly, we consider the provisions in plaintiff's CSB and the purchase orders issued by DAS under the term contract, both of which are part of the "contract." See Contract, Standard Terms and Conditions for Bids, paragraph 3 at 14. The submission of a purchase order is deemed an offer which may then be accepted or rejected. American Bronze Corp. v. Streamway Products (1982), 8 Ohio App. 3d 223, 227. Plaintiff's president, Edward Anthony, admitted that the purchase orders DAS issued were DAS' orders for specific jobs under the term contract, and he testified he looked at all the purchase orders carefully before doing the work ordered. The purchase orders DAS issued to plaintiff specified the size and number of pages to be produced for each job, as well as the prices to be paid for the printing and binding work for the respective jobs. The prices stated on the purchase orders for the work reflected the prices itemized on plaintiff's CSB and the quantity of a specified item, such as 16-page folding, that was needed to complete a particular job. The particular purchase orders at issue stated plaintiff was to be paid for printing at the eight-page rate and paid for "folding" at the 16-page rate, with the rates reflecting the unit prices plaintiff quoted in its bid. Plaintiff did not reject the purchase orders at the prices stated, but instead indicated its "acceptance" by completing the printing jobs ordered in the purchase orders. See American Bronze, supra. Pursuant to Paragraphs 30 and 31 of the term contract, upon completion of a printing job, plaintiff was required to submit an invoice to DAS based on the "[d]escription, quantity, unit price, total price, etc., as appears on the purchase order/purchase request" and any change orders approved by DAS for the job. (Emphasis added.) Paragraph 31 expressly states, twice, that "[a]ny changes to an order not approved by DAS shall not be paid." Plaintiff's president testified he saw this provision before he submitted plaintiff's bid and agreed its language is clear. Plaintiff did not demonstrate it obtained approval for a change in the pricing structure for "folding" from the 16-page rate specified in the purchase orders to an eight-page rate. Brenda Anthony, plaintiff's chief financial officer, testified that prior to submitting the disputed invoices, she sent no written request for such a change, she had no documentation of a request for or verbal authorization by DAS for a folding rate change, and she received no written change order from DAS approving such a change, even though plaintiff had requested and obtained approval for change orders for other items, and was paid accordingly. Rather, plaintiff testified she submitted the invoices reflecting an eight-page folding rate, not the 16-page folding rate reflected on the unchanged purchase orders, based on her "belief" DAS would pay the invoices because DAS knew plaintiff was folding eight-page, not 16-page, signatures. Plaintiff also did not demonstrate that DAS, either expressly or through its conduct, waived the contractual provisions requiring approval for changes in purchase orders. "Knowledge, and even acquiescence" by DAS that plaintiff was doing eight-page folding rather than 16-page folding "is not enough for recovery" by plaintiff where the contract expressly provides that invoices are to be based on the prices specified in the purchase order, and further provides that changes to a purchase order not approved will not be paid. See Foster Wheeler at 362-364. Plaintiff contends the terms of the contract are ambiguous to the extent a construction of the contract results in an interpretation different from plaintiff's interpretation, and therefore the contract should be construed against DAS as the drafter of the contract. See 2 Restatement of the Law 2d, Contracts (1979) 105, Contractual Obligations, Section 206. Even if we assume an ambiguity existed in the contract's terms, the general rule of construction does not apply in this case because the contract expressly provides that any ambiguities shall be construed in favor of the state. See Contract, Instructions for Submitting Bids, paragraph 1 at 12. Plaintiff next argues it should be paid at the eight-page folding rate because it was the work plaintiff actually performed. Plaintiff notes, and DAS agrees, it is physically impossible to fold a 16-page signature from an eight-page press form. Despite the apparent logic of plaintiff's argument, the contract nowhere states that folding eight-page press forms, arising out of plaintiff's eight-page printing, necessarily will be compensated at the eight-page folding rate. To the contrary, the contract states the purchase orders specify the rates and total price to be paid for the folding work for each job. No "manifest absurdity" results from the state structuring payment and setting its prices at the most economical rate for the job to be done. McConnell, supra. Where a contractor accepts a public contract for a stated amount, it has no right to unilaterally modify the contract to provide for payment on a basis different from that provided for in the contract. DiGioia Bros. at 454. Thus, where plaintiff accepted and completed the jobs outlined on the purchase orders, it could not then unilaterally modify the contract to provide for payment on a basis different from that provided for in the purchase orders. Id. Even if plaintiff had to fold two eight-page signatures to produce the equivalent of one 16-page signature, the terms of the contract provided that payment for this work would be at the 16-page signature rate. Plaintiff further argues that, where the sizes being printed and folded are the same, in this case printing and folding eight-page forms, charge for a larger size for folding than is being charged for printing is against industry standards. However, the record reflects plaintiff was on written notice that industry standards would not prevail regarding pricing and invoicing. Specifically, page three of plaintiff's bid form, which is a part of the contract, expressly provided in the section entitled "Instruction to Bidders" that "the state's requirements for itemizing and invoicing work produced under this contract often differ from standard commercial practices." Moreover, evidence was presented that DAS verbally notified the bidders in pre-bid meetings regarding the pricing and payment structure to be utilized in the term contract and, in particular, that contractors would be paid a larger rate for folding than for printing. Accordingly, industry standards are not controlling in this case. Finally, in support of its breach of contract claim, plaintiff maintains DAS should be estopped from denying payment to plaintiff at the eight-page folding rate for all purchase orders because plaintiff charged, and DAS paid, for folding at the eight-page rate on the first two purchase orders DAS issued. Plaintiff's estoppel argument is unpersuasive because it overlooks the fact that DAS merely paid according to the terms of the contract as reflected on the purchase orders, both when it paid plaintiff at the eight-page folding rate stated on the first two purchase orders and when it paid plaintiff at the 16-page folding rate stated on the remaining purchase orders. DAS claimed it made a mistake in specifying payment at the eight-page folding rate rather than a 16-page folding rate on the first two purchase orders, but it nevertheless paid according to the terms specified. Plaintiff entered into the contract and was similarly bound by its terms. Plaintiff may have simply realized, belatedly, it made a mistake in the bid it submitted and it wished to escape the harsh result. Plaintiff's claim, that it did not know until its invoices were rejected that it should have structured its bid price for 16-page folding to include two eight-page foldings, is undercut by the testimony of plaintiff's president, who admitted on cross-examination that two weeks after plaintiff submitted the bid for this contract, plaintiff bid another contract in which its rate for folding 16-page signatures was twice that of its rate for eight-page signatures. In comparison, plaintiff's unit price for 16-page folding for this contract was only slightly higher than its price for eight-page folding. As the Sixth Circuit Court of Appeals has observed, "parties that contract with the government are held to the letter of the contract — irrespective of whether the contract terms appear onerous from an ex post perspective, or whether the contract's purpose could be effectuated in some other way — under the maxim that '[m]en must turn square corners when they deal with the Government.'" U.S. ex rel. Compton v. Midwest Specialties, Inc. (1998), 142 F.3d 296, 302; see, also, DiGioia at 453 (adopting the maxim). A contract does not become ambiguous by reason that its operation may work a hardship upon one of the parties. S M Constructors at 71; Robert W. Clark, M.D., Inc. v. Mt. Carmel Health (1997), 124 Ohio App. 3d 308, 319. When the contract provisions at issue are construed as a whole, the terms are clear and unambiguous that, upon completion of a printing job, plaintiff was required to invoice DAS, and DAS was required to pay plaintiff, at the price(s) stated on the purchase order for the job, unless plaintiff obtained approval for a change. Because plaintiff did not obtain approval for a change in the folding price, DAS did not breach the contract by holding plaintiff to the terms of payment specified in the purchase orders. Plaintiff's second assignment of error is overruled. In its third assignment of error, plaintiff asserts the trial court found the terms of the contract to be clear and unambiguous but then erroneously used parol evidence to construe the terms of the printing contract in favor of the drafter, DAS. Specifically, plaintiff argues that in construing the "appropriate price" to be charged for bindery operations pursuant to Paragraph 62, the trial court improperly relied upon parol evidence that DAS explained the pricing and payment structure at pre-bid meetings. "Parol evidence is admissible only if the terms of the contract are ambiguous and then only to interpret, but not to contradict, the express language." Ohio Historical Soc. v. Gen. Maintenance Engineering Co. (1989), 65 Ohio App. 3d 139, 146. Here, parol evidence was inadmissible to construe the terms of the contract because the terms are clear and unambiguous, as the trial court properly determined. However, contrary to plaintiff's assertion, the trial court did not rely upon the referenced evidence to construe the terms of the contract. Rather, the trial court discussed the evidence in relation to plaintiff's claim that it should not be held to the pricing terms stated on the purchase orders because it lacked notice of the pricing and payment structure for "folding" work. Based upon the evidence, the court, at least implicitly, rejected plaintiff's claim it had no notice of the pricing structure before the time plaintiff submitted its bid. The court then construed the terms of the contract by applying the plain language of its provisions. Plaintiff's third assignment of error is overruled. Finally, in its fourth assignment of error, plaintiff asserts the trial court made various erroneous factual findings that the court then relied on in making its decision. Plaintiff argues the trial court's decision should be reversed to the extent it rests on incorrect factual findings. Plaintiff first contends, and DAS generally agrees, evidentiary support was lacking for the trial court's statements that "plaintiff was not able to fold a sixteen-page signature because it did not possess the necessary equipment" and "plaintiff cut the sixteen-page signatures in half and folded them as two eight-page signatures." (Decision, 2-3.) Even if the two statements are not supported by the evidence, plaintiff has not shown it was materially prejudiced by the statements such that the result at trial would have been different without the apparent errors. The result here is dictated by the contract terms, not by the trial court's description of plaintiff's equipment or the process plaintiff used. Accordingly, the errors do not warrant reversal. Plaintiff next claims the trial court erred in finding "plaintiff's bid prices for folding were considerably lower than the other contractors' bids." (Decision, 4.) Plaintiff maintains the undisputed evidence shows plaintiff's folding prices were lower than one bidder and higher than the other bidder. According to the evidence presented at trial concerning the bids submitted for the term contract, plaintiff's overall bid of $410,301.67 was significantly lower than the bids of the other two contractors, $1,098,725.20 and $888,470.09. Plaintiff is correct that its unit price of $29.64 for eight-page folding was considerably lower than the price of one bid at $42.92, and slightly higher than the other bid at $25.79. However, plaintiff's unit price of $30.95 for 16-page folding was lower than the price of either of the other bidders, being slightly lower than the one bid at $32.13, and almost half the price of the other bid at $58. Although the unit price plaintiff submitted for eight-page folding was slightly higher than one of the other bids, the evidence generally supports the trial court's statement that plaintiff's bid prices for folding were lower than the other bids and supports a finding that plaintiff's overall bid was significantly lower than the other two bids. Finally, plaintiff contends the trial court erred in finding that the other bids submitted for the contract supported DAS' testimony that the unit pricing structure for folding was discussed at pre-bid meetings. Specifically, the court stated: * * * The evidence shows that defendant outlined its pricing and payment structure to prospective bidding companies at pre-bid meetings. Specifically, defendant explained that it would make payment for folding signature pages at the largest folding rate. Representatives of plaintiff were in attendance at the pre-bid meetings; however, they denied that the aforementioned pricing and payment structure was discussed. Nevertheless, examination of the other bids submitted for the project as well as the pre-bid meeting agenda establishes that the structure was, in fact, discussed. (Decision, 4-5.) In testimony presented at trial, Brenda Anthony denied DAS explained the pricing and payment structures at the pre-bid meetings. Diane Ford, DAS' printing standards supervisor, contradicted Brenda Anthony and testified she was "confident" the pricing structure for folding was explained at the pre-bid meetings. The bid submitted by Morris Printing, in which its unit price for 16-page folding, $58, is markedly higher than its price for eight-page folding, $42.92, lends support to DAS' contention that the payment structure was explained to the bidders. In any event, because the evidence is conflicting regarding whether a pre-bid discussion was held concerning the pricing and payment structure, the question was properly one of credibility for the court to resolve, and it decided in favor of DAS. Because plaintiff has pointed to no erroneous finding that warrants reversal, we overrule plaintiff's fourth assignment of error. Accordingly, plaintiff's second, third, and fourth assignments of error are overruled, plaintiff's first assignment of error is sustained, and the judgment of the trial court is affirmed in part and reversed in part, and this matter is remanded to the trial court to incorporate the stipulation of the parties, filed April 16, 2001, into the judgment. Judgment affirmed in part and reversed in part; case remanded with instructions. LAZARUS and DESHLER, JJ., concur.

2016-07-06 06:36:52.425252+00

Given the evidence before the trial court, I agree that summary judgment was not appropriate in this case. Nevertheless, I disagree with the majority's conclusion that the question of whether appellee had constructive notice of the water box's defective condition was unsuitable for summary judgment. Therefore, I respectfully concur in judgment only. R.C. 723.01 clearly imposes a duty upon a municipal corporation to keep public grounds "open, in repair, and free from nuisance." See, also,Joseph v. Portsmouth (1975), 44 Ohio St. 2d 155, 157-158; Berger v. PortClinton (1993), 96 Ohio App. 3d 45, 48. In order to hold a municipal corporation liable for a violation of R.C. 723.01, the injured party must be able to show either that the municipality's agents or officers actually created the problem, or that it had notice, actual or constructive, of the alleged nuisance. Vogel v. Wells (1991),57 Ohio St. 3d 91, 97; Ruwe v. Bd. of Springfield Twp. Trustees (1987),29 Ohio St. 3d 59, 60. In the case at bar, there is nothing to indicate that appellee had actual notice of the water box's defective condition. However, as the majority correctly notes, reasonable minds, presented with the same evidence introduced during the summary judgment exercise, could come to different conclusions with respect to whether appellee had constructive notice of the condition. Constructive notice will be found where: (1) the unsafe condition existed in such a manner that it could have or should have been discovered; (2) the unsafe condition existed for a sufficient length of time to have been discovered; and (3) if the unsafe condition had been discovered it would have created a reasonable apprehension of a potential danger. Harp v. Cleveland Hts. (2000), 87 Ohio St. 3d 506, 512. Furthermore, "constructive notice may be inferred where it is foreseeable that a hazardous condition is likely to occur." Berger at 48. Despite the lack of evidence to suggest appellee had reason to suspect the water box posed a danger to the public, appellee did inspect the box approximately five months before the incident. The purpose of this inspection, at least in part, was to ascertain the condition of the water box and assess its potential to cause injury. Taken into consideration with David Sferra's letter to appellee's law department, in which Sferra explained that the water box in question was located in an area where rainwater had washed away the dirt from around the box causing the lid to become unstable, appellant presented sufficient evidence to create a genuine issue of material fact concerning whether appellee had constructive notice of the alleged nuisance. In other words, based on the evidence, a jury could reasonably conclude that appellee could or should have discovered the dangerous condition prior to the incident, and that the discovery would have created a reasonable apprehension of a danger to a passerby. That being said, however, I disagree with the majority's conclusion that the issue of constructive notice was "inappropriate for resolution by summary judgment." For example, if appellee would have presented some evidence, expert or otherwise, in its motion for summary judgment concerning the effects of rainwater on the water box, or the need and frequency of reasonable inspections, certainly one would agree that appellee did what it could to prevent the accident. Stated differently, simply because appellee did not properly support its motion does not inexorably mean that summary judgment was unsuitable; rather, it merely means that, considering the evidence actually presented, there still remained a genuine issue of material fact. For the foregoing reasons, I respectfully concur in judgment only with the opinion of the majority.

2016-07-06 06:36:50.935344+00

Dickinson

* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was not allowed in (1999), 85 Ohio St. 3d 1461,708 N.E.2d 1013. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 706 Defendants Jerry and Velvet Meadows have appealed from a judgment of the Summit County Common Pleas Court that granted declaratory and injunctive relief to plaintiffs Franklin Township and the township's zoning inspector, Mark Kochheiser. Defendants have argued that (1) the trial court incorrectly found their business not to be a public utility and, therefore, not exempt from township zoning regulations pursuant to R.C. 519.211(A), (2) the trial court incorrectly failed to apply the doctrine of estoppel against the township, and (3) the trial court incorrectly found Velvet Meadows to be in contempt of court and incorrectly awarded attorney fees to the township as punishment for defendants' actions. *Page 707 This court affirms the judgment of the trial court because (1) defendants failed to demonstrate that their company was a public utility pursuant to R.C. 519.211(A), (2) defendants failed to show that estoppel was applicable in this case, and (3) the trial court did not err by finding Velvet Meadows to be in contempt of court and by awarding attorney fees as part of the township's costs. I Defendants are the sole shareholders of Industrial Machinery Transport Incorporated, an Ohio corporation engaged in the intrastate and interstate hauling of industrial machinery. During September 1996, defendants requested an opinion from Franklin Township's zoning inspector concerning the possibility of relocating their business to the township. Specifically, they asked whether, pursuant to R.C. 519.211(A), they would be exempt from township zoning restrictions as a public utility. The zoning inspector requested an opinion from the Summit County Prosecutor's Office. That office stated that defendants' company was likely exempt as a public utility. On February 12, 1997, the zoning inspector sent a letter to defendants stating that their business would be exempt from the township's zoning regulations. Defendants continued with their plans to move and operate their trucking company from the new location in Franklin Township. A new zoning inspector for Franklin Township took office on February 15, 1997. He received complaints from defendants' neighbors about the operations being conducted on defendants' property. He reviewed the prior zoning inspector's letter to defendants and disagreed with its contents. He also inspected defendants' property and concluded that they were in violation of the township's zoning regulations. He therefore posted a notice on defendants' property on April 9, 1997, in which he informed them that they were in violation of the township's zoning regulations. He sent a letter on April 21, 1997, explaining to defendants that before any commercial or industrial buildings could be constructed, they would need to have their plans approved by the Summit County Engineer's Office and to obtain a zoning permit. Another letter was sent by the township's attorney on April 22, 1997, informing defendants that the township did not consider their business to be exempt from township zoning regulations. On May 22, 1997, Franklin Township filed a complaint against defendants in which it sought a declaration that defendants were in violation of the township's zoning regulations. It also sought a permanent injunction to prevent defendants from operating their business from their land in Franklin Township. Defendants, even after receiving notice from the township that they were in violation of the zoning regulations, continued to implement their plan to operate the trucking terminal from their property. A witness testified during the preliminary injunction hearing that "hundreds of tons of limestone" had been *Page 708 brought in during April and May 1997. Also during May 1997, gravel was brought in and a driveway was constructed. Truck traffic began on the property at least as early as April 1997. By June 3, 1997, defendants had completed moving their equipment onto the property. On that date, they started operating as a trucking terminal. They did not apply to the township for permission to operate the terminal, believing that they had a right to operate without permission. On July 8, 1997, the trial court held a preliminary injunction hearing. On July 17, 1997, it issued a preliminary injunction, enjoining defendants from operating their trucking business on the land and prohibiting further construction at the site. Contrary to the trial court's order, however, defendants continued to operate their business, and, on August 12, 1997, the trial court found that they had violated the injunction. It found that Ms. Meadows had solicited business for the trucking firm after the injunction was issued, and it ordered her incarcerated at the Summit County Jail for thirty days, which was suspended as long as no further trucking operations were conducted on the premises. It further ordered defendants to pay the township's attorney fees and the costs of the hearing. On September 9, 1997, the township's action was tried to the court. On September 19, 1997, the trial court ruled that defendants had failed to provide sufficient evidence that their trucking business could be classified as a public utility, pursuant to R.C. 519.211(A), and permanently enjoined them from operating their business on their property in Franklin Township. Defendants timely appealed to this court. II A Defendants' first assignment of error is that the trial court incorrectly determined their business not to be a public utility. They have argued that pursuant to R.C. 519.211(A) and case law from this court, their business should have been classified as a public utility and, as such, was exempt from the township's zoning regulations. In particular, defendants have relied onFreight, Inc. v. Northfleld Ctr. Twp. Bd. of Trustees (1958),107 Ohio App. 288, 8 O.O.2d 212, 158 N.E.2d 537, to support this assignment of error. In Freight, Inc., this court held a trucking firm to be a public utility when that firm was engaged in the intrastate and interstate hauling of commodities, was licensed by the Public Utilities Commission of Ohio and the Interstate Commerce Commission, had regulated rates, and held its services open to the public indiscriminately. Pointing to Freight, Inc., defendants have argued that its holding compels a similar result in this case. *Page 709 Freight, Inc. was an early case construing the public utility exemption from township zoning regulation pursuant to R.C. 519.211. The Ohio Supreme Court has refined that case. In A BRefuse Disposers, Inc. v. Ravenna Twp. Bd. of Trustees (1992),64 Ohio St. 3d 385, 596 N.E.2d 423, syllabus, the court held: "Determination of whether a particular entity is a public utility for the purpose of exemption from local zoning restrictions requires consideration of several factors related to the `public service' and `public concern' characteristics of a public utility. While the definition of a `public utility' is a `flexible one, the entity must provide evidence that it possesses certain attributes associated with public utilities or its claim to that status must fail." Defendants, therefore, had the burden of providing sufficient evidence to demonstrate public utility status. Absent such evidence, their business was not entitled to that classification.Id. at 389, 596 N.E.2d at 426-427. Public service is demonstrated by the "devotion of an essential good or service to the general public which has a legal right to demand or receive this good or service." Id. at 387,596 N.E.2d at 425. The good or service must be provided indiscriminately and reasonably, and may not be arbitrarily or unreasonably withdrawn.Id. at 387-388, 596 N.E.2d at 425-426; see, also, Adam v. BathTwp. Bd. of Zoning Appeals (1997), 121 Ohio App. 3d 645, 649,700 N.E.2d 669, 671; see, generally, Freight, Inc., supra,107 Ohio App. at 293, 8 O.O.2d at 215, 158 N.E.2d at 540-541. Defendants introduced no evidence demonstrating that their trucking business provided an essential service to the general public, or that the public had a legal right to demand it. Their business essentially involved the hauling of industrial payloads for private and public entities. This court cannot conclude that simply operating a trucking business automatically establishes the public service element. In addition, defendants failed to demonstrate that their business was provided to the general public without discrimination, or that it could not be arbitrarily or unreasonably withdrawn. The most that defendants claimed on this point was that they offered their services to "absolutely anybody." Those claims alone, however, were not sufficient to demonstrate that their business provided a public service. See A B Refuse Disposers, 64 Ohio St.3d at 389, 596 N.E.2d at 426-427 (rejecting appellant's assertion that Marano v. Gibbs (1989),45 Ohio St. 3d 310, 544 N.E.2d 635, stands for the proposition that any business that simply claims that its services are "open to the public" can be categorized as a public utility). Defendants failed to carry their burden of demonstrating that their business provided a public service, as defined in A B Refuse Disposers. Besides demonstrating the public service aspect of a public utility, defendants were required to show that their business was a matter of public concern. *Page 710 The public concern of a public utility arises from the monopolistic aspects of the business and the nature of the business in which it is engaged. See A B Refuse Disposers,supra, 64 Ohio St.3d at 389, 596 N.E.2d at 426-427; Adam v. BathTwp. Bd. of Zoning Appeals (1997), 121 Ohio App. 3d 645, 649-650,700 N.E.2d 669, 671-672. In determining whether defendants' business involved a public concern, relevant factors include the good or service provided, competition in the local marketplace, and regulation by the government. A B Refuse Disposers,64 Ohio St.3d at 388, 596 N.E.2d at 425-426. Defendants introduced no evidence relating to the nature of their services. They did not demonstrate anything in particular about their specific business or the trucking industry in general. In addition, they introduced no evidence whatsoever concerning the level of competition in the local marketplace. They did not address whether they held a monopolistic or oligopolistic position in the marketplace. In fact, they failed to even define the market. According to Ms. Meadows's testimony at the preliminary injunction hearing, their list of clients did not include any Franklin Township residents, arguably leading, to the conclusion that their business was not a public concern, at least as to Franklin Township residents. See A B RefuseDisposers, supra, 64 Ohio St.3d at 390, 596 N.E.2d at 427 (one factor leading to conclusion that the business was not a public utility was that no evidence was introduced showing that "a substantial part of those [local] residents actually avail[ed] themselves of [appellant's] service"). Finally, although defendants are registered with the Public Utilities Commission of Ohio and the Federal Highway Administration, regulation alone is not dispositive of the question of whether an entity's business is a matter of public concern.1 Id. at 389-390, 596 N.E.2d at 426-427. Along those same lines, although defendants' business is recognized as a public utility by the Public Utilities Commission of Ohio, for purposes of regulation by the Public Utilities Commission, that recognition alone does not establish that classification for purposes of R.C. 519.211(A). See Coventry Twp. v. Ecker (1995),101 Ohio App. 3d 38, 41, 654 N.E.2d 1327, 1328-1329; SpringfieldTwp. v. Grable (Aug. 5, 1998), Summit App. No. 18832, unreported, at 6-7, 1998 WL 469871. Defendants failed to introduce sufficient evidence to demonstrate that their business was a public utility, entitled to exemption from Franklin Township's zoning regulations pursuant to R.C. 519.211(A). Consequently, the trial court did *Page 711 not err by finding that their business was not exempt. Defendants' first assignment of error is overruled. B Defendants' second assignment of error is that the trial court incorrectly failed to apply the doctrine of equitable estoppel against the township. They have argued that because the then Franklin Township zoning inspector wrote on February 12, 1997, that their business was a public utility, defendants should have been entitled to rely on that representation and the township should not have been permitted to change its position and argue that defendants were in violation of the township's zoning regulations. Equitable estoppel prevents relief when one party induces another to believe that certain facts exist and the other party changes his position in reasonable reliance on those facts. Chubbv. Ohio Bur. of Workers' Comp. (1998), 81 Ohio St. 3d 275, 279,690 N.E.2d 1267, 1269-1270. Defendants, as the parties raising this affirmative defense, had the burden of demonstrating its applicability. See Civ. R. 8(C); MatchMaker Internatl., Inc. v.Long (1995), 100 Ohio App. 3d 406, 408, 654 N.E.2d 161, 162. Determinations concerning the specific elements of estoppel are questions of fact. Teamster's Local 348 Health Welfare Fund v.Kohn Beverage Co. (C.A.6, 1984), 749 F.2d 315, 319. Whether facts proven are legally sufficient to constitute an estoppel is a question of law. Id. In this case, defendants failed to set forth sufficient facts to demonstrate the applicability of equitable estoppel. First, defendants could assert estoppel against the township only if the prior zoning inspector made a statement that was within his authority to make and that statement actually induced reliance. See Pilot Oil Corp. v. Ohio Dept. of Transp. (1995), 102 Ohio App. 3d 278,283, 656 N.E.2d 1379, 1382-1383 (applying estoppel against municipality); Shapely, Inc. v. Norwood Earnings Tax Bd.of Appeals (1984), 20 Ohio App. 3d 164, 166, 20 OBR 198, 200-201,485 N.E.2d 273, 275-276. To demonstrate the applicability of equitable estoppel in this case, therefore, defendants were required to show that it was within the scope of the zoning inspector's authority to grant exemptions from the township's zoning regulations. Defendants presented no evidence regarding the scope of the zoning inspector's authority. They only showed, through the testimony of the zoning inspector, that he had given a copy of the letter at issue to the chairperson of the trustees of Franklin Township. That testimony alone was not sufficient. Defendants did not present any township resolutions or zoning regulations that defined the authority of the zoning inspector. Defendants did not show what person or entity, if any, may exempt a business from the township's zoning regulations as a *Page 712 public utility, or what procedures were necessary to resolve such a case. Accordingly, because defendants presented no evidence showing that the zoning inspector was acting within the scope of his authority when he informed them that their business was exempt from the township zoning regulations, defendants have failed to demonstrate the applicability of equitable estoppel to this case. Second, the February 12, 1997, letter did not necessarily induce defendants to rely to their detriment. Defendants were preparing to move, and were making all of the necessary arrangements to move, well before they were told that their business was exempt from the township's zoning regulations. According to Ms. Meadows, during October 1996, defendants sent the Public Utilities Commission of Ohio a notice of their new address in Franklin Township because they were required to inform the commission of their "home domicile." Defendants failed to demonstrate that they were waiting for confirmation from the zoning inspector before they moved or that they would not have moved had the zoning inspector not determined their business to be exempt from the township's zoning regulations. Instead, they continued with their plans to move while the decision of the zoning inspector was pending. Defendants have, therefore, failed to show that they were induced to move to Franklin Township by the zoning inspector. Finally, defendants' reliance on the February 12, 1997, letter was not reasonable, considering that that letter's conclusions were revoked when the new zoning inspector informed them that they were in violation of the township's zoning code. The township notified defendants of its position that their trucking company was not a public utility as early as April 9, 1997, when the new zoning inspector posted a notice of violation at their premises, and no later than May 22, 1997, when the township filed its complaint against them. Despite that notice, defendants continued with their plans to move their business into the township and to begin trucking operations. Defendants did not actually begin operations at their facility until the first week of June 1997. According to Ms. Meadows's testimony, after receiving notice that the township considered them in violation of its zoning code, defendants did not stop with their plans to move their operations on the advice of their attorney. At that time, they knew the township's position and understood that the township would consider any further actions on their part to be in violation of the township's zoning regulations. They were, therefore, not operating in reliance on the February 12, 1997, letter. Defendants' second assignment of error is overruled. C Defendants' third assignment of error is that the trial court incorrectly found Ms. Meadows in contempt of court and incorrectly awarded attorney fees to the township. They have argued that the trial court's granting of the *Page 713 preliminary injunction was improper and that, therefore, finding Ms. Meadows in contempt for violating that injunction was improper. Defendants have simply concluded that the trial court's granting of the preliminary and permanent injunctions was improper without demonstrating how the trial court's action was improper or why the injunctions should not have been issued.2 Defendants' argument, therefore, is overruled. Nonetheless, even if Ms. Meadows had shown that the injunction was improperly granted, she still would have been obligated to obey it. SeeCramer v. Petrie (1994), 70 Ohio St. 3d 131, 133, 637 N.E.2d 882,884-885 (courts have a "strong interest" to see that their orders are not "disobeyed with impunity"); Hamilton City School Dist.Bd. of Edn. v. Hamilton Classroom Teachers Assn. (1982), 5 Ohio App. 3d 51,53, 5 OBR 146, 149, 449 N.E.2d 26, 29 ("[a]n order issued by a court with jurisdiction must be obeyed until it is reversed by orderly and proper proceedings"); In re White (1978),60 Ohio App. 2d 62, 64-69, 14 O.O.3d 34, 35-39, 395 N.E.2d 499,501-504. Finally, defendants have argued that the trial court improperly awarded attorney fees to the township. They have argued that pursuant to R.C. 2705.05, the allowable sanctions for contempt for a first-time offense are only a fine of no more than $250, imprisonment up to thirty days, or both. Although R.C. 2705.05 sets forth penalties for contempt of court, a court is not limited to imposition of those penalties. McDaniel v. McDaniel (1991), 74 Ohio App. 3d 577, 579, 599 N.E.2d 758, 759-760. Among other things, it may award attorney fees as part of the costs taxable to a defendant found to have committed civil contempt.Id. The trial court ordered defendants to pay the township's attorney fees and the costs of the hearing, and ordered Ms. Meadows to serve a term of thirty days in the Summit County Jail. This court concludes that the award of attorney fees was part of the costs of the hearing. Defendants' third assignment of error is overruled. III Defendants' assignments of error are overruled. The judgment of the trial court is affirmed. Judgment affirmed. SLABY, P.J., and REECE, J., concur. 1 Apparently, defendants must have their rates approved by the Federal Highway Administration. In addition, they are subject to appropriation by the federal government in cases of national emergency. 2 Ms. Meadows was only found in contempt for violating the preliminary injunction, not both injunctions, as defendants have asserted. *Page 714

2016-07-06 06:36:51.080164+00

Per Curiam

On July 27, 1962, the office of Mayor of the city of Cleveland became vacant by reason of the resignation of *Page 138 the incumbent, Anthony J. Celebrezze. The fact of such vacancy gives rise to the present action which is now lodged in this court as an appeal on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County. The action, as begun in the trial court, sought a declaration from that court as to the manner and method by which the vacancy in the office of mayor is to be filled. The petition was filed on relation of Gerard A. Anderson, Jr., a taxpayer, elector and resident of the city of Cleveland. The respondents are the members of the Board of Elections of Cuyahoga County, one Patricia A. Dorsey, a taxpayer, elector and resident of the city of Cleveland, and the city of Cleveland. The last two named respondents were made so by order of the trial court. Patricia A. Dorsey is the appellant herein. The city of Cleveland did not prosecute an appeal, although it presented oral argument. The appellees are the relator and the respondents who are members of the board of elections. A narrative bill of exceptions, approved by all counsel of record as provided in Section 2321.12 of the Revised Code, has been filed herein within the time provided by law. The city of Cleveland, in November 1931, revised its charter. Such revision, among other things, provided the manner and method of election of its mayor and its members of city council. The election to these offices was, by Section 4 of such revised charter, to be by a nonpartisan ballot. The way by which a vacancy in the office of mayor was to be filled, if such vacancy "is more than one year before the next regular municipal election," was provided for by Section 73 of the charter. This section calls for a special nonpartisan primary election to be held on the first Tuesday after 60 days from the day on which the vacancy first occurs, to be followed by a "final special municipal election" on the fifth Tuesday following "the said nonpartisan primary election" to determine which one of the two top men chosen in the nonpartisan primary election is to be mayor. In 1958, and again in 1960, Section 4 of the city charter was amended. These amendments provided for a partisan mayoralty election, but retained the provision for a nonpartisan election for members of city council. No change was made in Section 73. Three declarations are possible herein. One declaration is *Page 139 to hold that, since Section 73 was not amended and standing alone does not provide a complete method of preparing and filing a nomination petition, no election to fill a vacancy can be held. A second declaration is to require a nonpartisan election as earlier called for before the amendments of 1958 and 1960. Such declaration would compel us to accept as still operative the earlier charter provisions before the 1958 and 1960 amendments. The third declaration is to state that, when Section 4 of the charter was amended to provide for a mayor to be regularly elected by a partisan vote after nomination by partisan supporters, such partisan character also applies to the filling of a vacancy for the office of mayor under Section 73. The only way a candidate can get on the primary ballot, whether partisan or nonpartisan, is by means of a declaration of candidacy with which there is submitted a petition signed by the required number of electors. Under the charter as it now exists, a petition for mayor must be signed by at least 3,000 electors of the city of Cleveland who are members of his political party (Section 4 of the Charter), thus making it a purely partisan affair. An independent candidate for mayor does not run at the primary and his name can be submitted to the voters at the general election only if he presents a petition with qualified names representing in number seven per cent of those who voted for Governor in the last gubernatorial election at least ten days before the primary election. To declare that Section 73 is inoperative, and that as a consequence an election of a mayor at this time cannot be held, would nullify the plain intent of the electors of Cleveland, as clearly expressed in such section. This section has been determined to be a valid and constitutional provision of the charter of the city of Cleveland. Jones v. City of Cleveland,124 Ohio St. 544. The second declaration, supra, which is urged by the respondent-appellant herein, would compel reliance upon sections of the charter which no longer exist, they having been repealed by amendment. In addition thereto, to justify this second solution would require us to ignore the partisan provision of Section 4 presently in effect. The respondent-appellant insists that a nonpartisan primary could be held by candidates filing, with their declaration of candidacy, a petition bearing the signatures *Page 140 of 3,000 electors regardless of party affiliation. Such hybrid procedure finds no sanction in law. It seems to us that the third declaration, supra, is the rational and logical solution of the problem presented herein. Section 3 of the charter provides for the time when regular municipal elections shall be held and sets out that other elections shall be held as required by law or as provided for in the charter. Section 4 provides for the manner by which candidates for the office of mayor are to be nominated. The principal requirement of this section, for other than an independent candidate, is that a candidate be nominated at a partisan primary, including the number of partisan electors who must sign the petition filed with the declaration of candidacy. When the electors of the city of Cleveland on two separate occasions voted to amend Section 4, they, by their mandate, required that the mayor of the city be thereafter nominated only by partisan supporters with definite party affiliation. Section 73 requires, under the circumstances we have in the instant case, that a new mayor be elected to fill the unexpired term by means of "special municipal elections," and fixes the dates, with relation to the vacancy, on which these "special municipal elections" are to be held. It also provides that "all the provisions in the charter contained as to nomination and election of candidates for mayor at regular municipal elections shall apply to the special municipal elections." (Emphasis added.) It is clear from such language that the character of these "special municipal elections" is determined from the section dealing with the nomination and election of a mayor at "regular municipal elections," which is Section 4. Thus it is manifest that the expression, "the nonpartisan primary election," in Section 73 is no more than a reference to a primary election designated in Section 4. The expression, "the nonpartisan primary election," in Section 73, though not amended in 1958 or 1960, is not substantive in character and does not change the type of primary election as now provided for in Section 4. The charter says, with respect to elections, that where there is no provision expressed therein, the general law of the state of Ohio shall apply. By reaching our conclusion herein, we find that the charter of the city of Cleveland, together with the general election laws, *Page 141 constitute a harmonious document which carries into effect the clearly expressed wishes of the electors of Cleveland in the nomination and election of its mayor. We therefore determine that the judgment of the trial court must be affirmed. Judgment affirmed. KOVACHY, P. J., HURD and HUNSICKER, JJ., concur. HUNSICKER, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.

2016-07-06 06:36:51.194864+00

Painter

{¶ 1} In this uninsured-motorist case, defendant-appellant/cross-appellee Erie Insurance Company ("Erie") appeals the entry of partial summary judgment in favor of plaintiff-appellee/cross-appellant, Jeffrey Fahlbush. In 2003, Fahlbush was in a car accident with defendant-appellee/cross-appellee Connie Crum-Jones, and Fahlbush sued, seeking a declaration that he was covered under an Erie insurance policy issued to Fahlbush's employer, Cincinnati Building and Contracting, Inc. ("CBCI"). Defendant-appellee/cross-appellee Geico General Insurance Company insured Fahlbush. {¶ 2} Before the accident, Fahlbush had been at a CBCI job site, but had left when the work at that site had been stopped because a necessary inspection had been lacking. According to Fahlbush, he drove to the next job site and, while en route, was in a car accident. In its appeal, Erie contends that it did not owe coverage because Fahlbush was not en route to another CBCI job site and that even if he was, the CBCI policy did not cover him. {¶ 3} We note that Erie failed to raise below the issue whether CBCI's policy covered Fahlbush; notwithstanding this, our review of the record convinces us *Page 330 that Fahlbush was covered under the uninsured-motorist ("UM") provision of the CBCI policy and that the accident occurred while Fahlbush was acting in the scope of his employment. We must therefore affirm the trial court's entry of summary judgment for Fahlbush. {¶ 4} Also, on the authority of Bowman v.Progressive Cas. Ins. Co., 1 we summarily conclude that Fahlbush's cross-appeal — urging us to reverse the trial court's decision denying prejudgment interest against Erie and Geico — is meritless. Our review of the record reveals no abuse of discretion and no basis to depart from our previous holding that prejudgment interest should generally not be awarded when the insured's coverage exceeds his or her damages — as was the case here. I. A Lack of Work {¶ 5} In February 2003, Fahlbush went to his assigned job site at Village Brook Apartments and on arrival learned that he could not work because a required inspection had not been performed. {¶ 6} The site manager advised Fahlbush about another job where CBCI was performing work. Fahlbush attempted to call three different dispatching supervisors for further instructions, but he could reach no one. Fahlbush then decided to drive to the nearest CBCI jobsite, which was at Furrow's Lumber on Reading Road in Evendale, Ohio. CBCI required Fahlbush to use his own car to drive from job site to job site, and he was considered to be on the job while in transit and was paid for his time driving between job sites. The accident occurred at the intersection of Kemper and Snider Road, when Connie Crum-Jones failed to yield the right-of-way and turned in front of Fahlbush as he was traveling along Kemper Road. {¶ 7} Fahlbush was injured, and his car was damaged. Fahlbush filed for workers' compensation, and the Ohio Industrial Commission ruled that Fahlbush was in the course and scope of employment when the accident occurred, thereby entitling him to compensation. {¶ 8} Fahlbush then brought this declaratory-judgment action seeking coverage under CBCI's Erie insurance policy. Fahlbush later moved for partial summary judgment on the issues of coverage and scope of employment. Oddly, Erie's memorandum in opposition did not address the issue whether Fahlbush was covered under the terms of the policy. Consequently, the hearing and trial court's decision focused on whether Fahlbush was acting in the scope of his employment. In concluding that he was, the court noted that although there *Page 331 were factual discrepancies in the record, the discrepancies were immaterial to the issue of summary judgment. {¶ 9} The summary-judgment standard required that Fahlbush's motion be granted if (1) there were no material issues of fact remaining, (2) Fahlbush was entitled to judgment as a matter of law, and (3) based on the evidence, reasonable minds could have come to only one conclusion, and that conclusion was adverse to Erie.2 On appeal, we review an entry granting summary judgment de novo;3 and though the evidence must be construed in favor of the nonmoving party, 4 we are mindful that only genuine factual disputes that affect the outcome of the suit will preclude summary judgment.5 II. Scope and Course of Employment {¶ 10} Erie contends that summary judgment was precluded because material issues of fact existed regarding whether Fahlbush was actually going to work when the accident occurred. Specifically, Erie cites inconsistencies in the record, including the following: (1) Fahlbush's letter to the Bureau of Workers' Compensation ("BWC") asserted that he could not reach his dispatch supervisor, and that this was not unusual, but in Fahlbush's first deposition he stated that he had never been in a situation where he was unable to make contact with his employers, (2) Fahlbush claimed in his BWC letter that he had driven to Furrow's, the closest job site, as he had done in the past, but the facts indicated that he had never in the past gone to a new job site because it was closest, and that he had never traveled to another job site without being specifically assigned by a supervisor, and (3) the affidavits of Fahlbush and Tom Jansen (another CBCI employee) conflicted, according to Erie's brief, because Jansen claimed that "employees were given discretion to go from jobsite to jobsite without the need to call the office or owners," whereas Fahlbush's affidavit went on "at length to point out that he [had] tried calling the owners to get a new assignment." {¶ 11} In reverse order, we first note that Jansen did not testify that employees were given discretion to travel from job site to job site without the need to call the dispatching supervisors. Jansen's affidavit stated only that employees were given discretion to leave job sites to obtain tools, parts, or materials without the need to call the office or supervisors. And Erie's first and *Page 332 second examples of inconsistencies in the record were immaterial to the entry of summary judgment in this case. As the trial court correctly noted, "without question, there are grounds to assert [that] discrepancies may be shown in [Fahlbush's] statements. But to raise the situation to the level of being a genuine issue of fact, the credibility must relate to a material fact." {¶ 12} The issues identified by Erie — whether Fahlbush had been able to reach his supervisors and whether he had traveled to another job site without being specifically assigned by a supervisor — were immaterial to whether he was in the course and scope of his employment when the accident occurred. He clearly was. III. A Waived Argument {¶ 13} The issue whether Fahlbush was covered under the UM endorsement of CBCI's policy as an "active member" of CBCI was apparent at trial. But because it was not raised by Erie in the trial court, it has been waived on appeal. {¶ 14} Under the waiver doctrine, the failure to timely advise a trial court of possible error, by objection or otherwise, results in a waiver of the issue for purposes of appeal.6 The rule ensures that the trial court is afforded an opportunity to avoid or correct an error by placing the adversary on notice of the argument and providing an opportunity for rebuttal, and by providing the trial court with an opportunity to modify its decision or to order a more complete development of the record regarding the issue for review.7 Thus, a reversible error is one that has been firstsuggested as error to the trial court.8 {¶ 15} Erie failed to raise the issue whether the policy covered Fahlbush at trial. Fahlbush had no notice of the argument, and the trial court was never given the opportunity to develop the record regarding that issue. For these reasons, Erie's argument that Fahlbush was not covered under the UM endorsement has effectively been waived and is barred on appeal. {¶ 16} Even so, it appears that Fahlbush was covered under the UM endorsement. Insurance policies are contracts.9 When a term is not defined in an insurance policy, as in any contract, the ordinary meaning will prevail.10 The *Page 333 failure to define a term in an insurance policy does not automatically render the policy ambiguous.11 Rather, only when no ordinary meaning of the term exists will the failure to define the term constitute an ambiguity.12 In cases of ambiguities, policy terms will be construed in favor of coverage.13 {¶ 17} The Erie UM endorsement stated that insureds were "active members of the organization." "Active members" was not defined in the policy. The Second Appellate District, in Florence v. Brown, held that an employee was not an active member under the policy, but failed to state its reasoning or to define the term.14 {¶ 18} Because an ordinary meaning of the term existed, the policy's failure to provide a definition did not create an ambiguity. Instead, the ordinary meaning prevailed. Literally defined, a "member" is "one of the individuals composing a group."15 Likewise, "active" is defined as "marked by present operation" or "engaged in an action or activity."16 In that sense, Fahlbush was an active member of CBCI. Although Erie has waived the argument, we are convinced that, under the policy, Fahlbush would have been considered an active member. Perhaps the drafters meant something else, but we cannot discern exactly what. We affirm the judgment of the trial court. Judgment affirmed. HILDEBRANDT, P.J., and HENDON, J., concur. 1 Bowman v. Progressive Cas. Ins. Co. (1999),136 Ohio App. 3d 259, 265, 736 N.E.2d 502. 2 See Civ. R. 56(C); see also Dresher v. Burt (1996), 75 Ohio St. 3d 280, 293, 662 N.E.2d 264. 3 See Doe v. Shaffer (2000), 90 Ohio St. 3d 388,390, 738 N.E.2d 1243. 4 See Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St. 3d 344, 346, 617 N.E.2d 1129. 5 Id.; see also Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202; Perezv. Scripps-Howard Broadcasting Co. (1988),35 Ohio St. 3d 215, 520 N.E.2d 198. 6 See Ponder v. Kamienski, 9th Dist. No. 23270,2007-Ohio-5035, 2007 WL 2781197, at ¶ 13. 7 See Pfeifer v. Jones Laughlin Steel Corp. (C.A.3, 1982), 678 F.2d 453, Fn. 1; State v. Awan (1986), 22 Ohio St. 3d 120, 122, 22 OBR 199, 489 N.E.2d 277. 8 (Emphasis added.) Thamann v. Banish,167 Ohio App. 3d 620, 2006-Ohio-3346, 856 N.E.2d 301, ¶ 58 (Gorman, J., dissenting), citing Pfeifer. 9 Westfield Ins. Co. v. Galatis,100 Ohio St. 3d 216, 2003-Ohio-5849, 797 N.E.2d 1256. 10 Byers v. Motorists Ins. Cos.,169 Ohio App. 3d 404, 2006-Ohio-5983, 863 N.E.2d 196. 11 Nationwide Mut. Fire Ins. Co. v. Guman Bros.Farm (1995), 73 Ohio St. 3d 107, 652 N.E.2d 684. 12 Boso v. Erie Ins. Co./Erie Ins. Exchange (1995),107 Ohio App. 3d 481, 669 N.E.2d 47. 13 Spike Indus. v. Midwestern Indemn. Co., 7th Dist. No. 06-MA-148, 2007-Ohio-6225, 2007 WL 4145842, at ¶ 11, citing Galatis, supra, 100 Ohio St. 3d 216,2003-Ohio-5849, 797 N.E.2d 1256, at ¶ 14, and Yeager v.Pacific Mut. Life Ins. Co. (1956), 166 Ohio St. 71, 1 O.O.2d 204, 139 N.E.2d 48. 14 Florence v. Brown, 2d Dist. No. 19847,2004-Ohio-772, 2004 WL 315219, at ¶ 28. 15 Merriam Webster's Online Dictionary (2008). 16 Id. *Page 334

2016-07-06 06:36:51.294997+00

Gwin

{¶ 1} Defendant, Stephanie Chapman, appeals a judgment of the Court of Common Pleas of Richland County, Ohio, which sustained the motion to compel discovery made by plaintiff-appellee Haley Thompson, a minor, by and through her mother and next friend, appellee Amanda McNeely. Appellees sought appellant's psychiatric and psychological treatment records, and the trial court found that the information is discoverable. The court ordered appellant to provide appellees with the requested documents or signed authorizations allowing appellees to obtain the documents. Appellant assigns a single error to the trial court: {¶ 2} "I. The trial court erred in granting plaintiff's motion to compel discovery of defendant Stephanie Chapman's privileged psychiatric/psychological records." {¶ 3} Appellee Haley Thompson was injured in appellant's home when she allegedly pulled an electric fryer off the counter, spilling hot grease on her. She was approximately one year old at the time. Appellee filed suit against appellant, alleging that she had negligently left the electric fryer close to the edge of the counter with the electrical cord hanging over the edge. Appellant denied leaving the fryer too close to the edge of the counter and denied leaving the cord dangling. Appellant counterclaimed, alleging that appellee Amanda McNeely was negligent and caused the child's injuries. {¶ 4} It does not appear that appellant's deposition was filed with the court. Appellees allege that appellant testified in the deposition that she was on stress leave from her employment at the time of the accident. Appellees state that appellant deposed that she had seen a psychiatrist and a psychologist in the weeks or months after the accident. *Page 336 {¶ 5} Appellees argued that the records of the psychiatrist and psychologist would demonstrate appellant's state of mind at the time of the accident. {¶ 6} R.C. 2317.02(B)(1) provides that certain persons shall not testify regarding certain matters: {¶ 7} "(1) A physician or a dentist concerning a communication made to the physician or dentist by a patient in that relation or the physician's or dentist's advice to a patient, except as otherwise provided in this division, division (B)(2), and division (B)(3) of this section, and except that, if the patient is deemed by section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the physician may be compelled to testify on the same subject, The testimonial privilege established under this division does not apply, and a physician or dentist may testify or may be compelled to testify, in any of the following circumstances: (a) In any civil action, in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action, or in connection with a claim under Chapter 4123. of the Revised Code, under any of the following circumstances: * * * (iii) If a medical claim, dental claim, chiropractic claim, or optometric claim, as defined in section 2305.113 of the Revised Code, an action for wrongful death, any other type of civil action, or a claim under Chapter 4123. of the Revised Code is filed by the patient." {¶ 8} Psychiatrists are treated like other medical doctors. McCoy v. Maxwell (2000), 139 Ohio App. 3d 356,743 N.E.2d 974. {¶ 9} Subsection (G) applies the same privilege to mental-health professionals, such as clinical counselors, professional counselors, social workers, and therapists. It provides: {¶ 10} "(1) A school guidance counselor who holds a valid educator license from the state board of education as provided for in section 3319.22 of the Revised Code, a person licensed under Chapter 4757. of the Revised Code as a professional clinical counselor * * * independent social worker, marriage and family therapist or independent marriage and family therapist, or registered under Chapter 4757. of the Revised Code as a social work assistant concerning a confidential communication received from a client in that relation or the person's advice to a client unless any of the following applies: * * * {¶ 11} "(d) The client voluntarily testifies, in which case the school guidance counselor or person licensed or registered under Chapter 4757. of the Revised Code may be compelled to testify on the same subject. {¶ 12} "(e) The court in camera determines that the information communicated by the client is not germane to the counselor-client, marriage and family therapist-client, or social worker-client relationship. * * * *Page 337 {¶ 13} "(g) The testimony is sought in a civil action and concerns court-ordered treatment or services received by a patient as part of a case plan journalized under section 2151.412 of the Revised Code or the court-ordered treatment or services are necessary or relevant to dependency, neglect, or abuse or temporary or permanent custody proceedings under Chapter 2151. of the Revised Code." {¶ 14} Our standard of reviewing decisions on motions to compel is the abuse-of-discretion standard, seeState ex rel. The V Cos. v. Marshall (1998),81 Ohio St. 3d 467, 692 N.E.2d 198. Thus, this court may not reverse a trial court's decision absent an abuse of discretion, which the Supreme Court has defined as implying that the court's attitude is unreasonable, arbitrary, or unconscionable, Id. {¶ 15} Because R.C. 2317.02(B) is in derogation of the common law, it must be strictly construed, In reMiller (1992), 63 Ohio St. 3d 99, 585 N.E.2d 396. TheMiller court stated that in addition to the three statutory instances in which a waiver occurs, there may be other instances in which a court could find a waiver: "[T]he facts of this case are not so compelling that a judicially created waiver must be invoked." Id. at 109, 585 N.E.2d 396. {¶ 16} Appellees argue that because appellant filed a counter claim, she has waived the privilege, or in the alternative, there are compelling facts requiring a judicially created waiver as stated in Miller, supra. {¶ 17} Appellant did in fact file a counterclaim, but it does not appear that her counterclaim places her mental condition at issue. In addition, the record does not contain sufficient facts from which we could conclude that a judicially created waiver might be appropriate. We conclude that the information appellees seek is privileged and confidential. {¶ 18} In Folmar v. Griffin,166 Ohio App. 3d 154, 2006-Ohio-1849, 849 N.E.2d 324, this court reviewed a case similar to the one at bar. Folmar sued Griffin for assault, battery, and negligent and/or intentional infliction of emotional distress, and Griffin filed a counterclaim alleging assault, battery, trespass to chattels, negligence, defamation, and intentional infliction of emotional distress. In the course of discovery, Folmar's interrogatories asked whether Griffin had been referred to or ordered to undergo or take part in any type of anger-management counseling. Griffin objected but also responded that he had taken an anger-management counseling course. Folmar then sought the records relating to the anger-management counseling. {¶ 19} The trial court found that Griffin's psychological and psychiatric records were not privileged because they relate causally or historically to the physical and/or mental injuries he claimed in his counterclaim. The court ordered the records delivered directly to Folmar. *Page 338 {¶ 20} On review, this court found that the conditions for disclosure listed in R.C. 2317.02 are different for medical records than for counseling records. If the records are medical records under subsection (B), then the court must determine whether the records are related causally or historically to physical or mental injuries relevant to the issues of the case. If they are counseling records governed by subsection (G), they are admissible only if one or more of the statutory exceptions applies. {¶ 21} In Folmar, 166 Ohio App. 3d 154,2006-Ohio-1849, 849 N.E.2d 324, ¶ 25-26, we concluded that the trial court erred in not conducting an in camera inspection of the records to determine whether they were medical records or counseling records and whether the conditions for disclosure were present. We found that the court should have issued an order that the records be transmitted under seal to the trial court for its review. {¶ 22} We also noted that the court should place any documents it found privileged in the record under seal for potential appellate review. Id. at ¶ 27. {¶ 23} Judge Edwards's concurring opinion found that the request to release the records was also overly broad. Id. at ¶ 39. {¶ 24} We find that the trial court here erred in ordering that all the records be provided directly to appellees. Instead, the court should have ordered the records delivered under seal to the court so it could conduct an in camera inspection. As in Folmar, supra, the court must determine whether each record is covered by R.C. 2317.02(B) or (G), and whether the conditions set out in the appropriate subsection for disclosure are present. {¶ 25} The assignment of error is sustained. {¶ 26} For the foregoing reasons, the judgment of the Court of Common Pleas of Richland County, Ohio, is reversed, and the cause is remanded to the court with instructions to conduct an in camera examination of the documents. The court must also place all the documents under seal in the record for potential appellate review. Judgment reversed and cause remanded. HOFFMAN, P.J., and WISE, J., concur. *Page 339

2016-07-06 06:36:51.552911+00

Matthews

The appellees in these cases were found guilty of contempt by a notary public in refusing to answer certain questions asked them at the taking of their depositions. They were committed to the custody of the sheriff until they should purge themselves of the contempt. Whereupon, petitions for writs of habeas corpus were filed. At the hearing before the court, it was considered that they were not in contempt and were unlawfully restrained of their liberty, and the sheriff was directed to release them from custody. The sheriff appealed from that order. Appellees' counsel inform the court dehors the record that one of the three Defendants in the action in which the deposition was being taken had not been served with summons and contends that Section 11526, General Code, providing that "either party may commence taking testimony by deposition at any time after service upon the defendant" invalidates the whole process of the taking of this deposition. This court, of course, cannot predicate its decision in a case upon something not shown by the record. Furthermore, were this fact recited in the record, it would not necessarily produce the legal consequence attributed to it. Notwithstanding service of summons had not been made upon one defendant, Section 11526, General Code, places no obstacle in the way of taking depositions that would be admissible in evidence against the two who *Page 47 had been served with summons at the time of the taking of the deposition. It might be that the third defendant might never be summoned and the action dismissed as to him. He is not a necessary party to this action against the other two tort-feasors. The action against them could proceed without him. The authority of the notary and the fact that he was engaged in the taking of a deposition in a pending case in the lawful exercise of his official power are not in issue in this case. The appellees, therefore, were obliged to answer all questions that would elicit competent and relevant evidence, unless protected from answering by some rule of privilege. From the copy of the petition introduced in evidence, we learn that the plaintiff alleged that the defendants were negligent in the operation of an automobile upon a public highway in Clark county, Ohio, and that as a result the automobile struck the plaintiff who was walking along the berm of the highway. It was stipulated that the appellees were acting as investigators for Employers Group, an insurance company, and were making the investigations on behalf of the assured. We assume from this that the witnesses were agents for one or more of the defendants in making the investigation. The questions sought to elicit from them statements made by defendant Cole to them at some time after the accident, relating to the circumstances of the accident — whether he was operating the automobile, how he was operating it, when he first learned an accident had happened, what he was doing at and immediately prior thereto, the kind of automobile, and for whom he was working. The only questions not relating to conversations with the defendant Cole were as to whether they went to the place of the accident and what they discovered. It is clear that admissions to any one made by Cole *Page 48 narrating the circumstances of the accident would be inadmissible against Cole's co-defendants. It is also clear that these statements were made by Cole to these investigators to be communicated to an attorney representing Cole in defending the action, and, therefore, would be privileged as to Cole and inadmissible against him. It is equally clear that things discovered by these witnesses at the place of accident at a later, but unknown, date would be immaterial and irrelevant as to all defendants. In 14 Ohio Jurisprudence, 36, Section 36, it is said: "* * * The Supreme Court has expressly declined to sustain the contention that a witness who is testifying in a deposition may be compelled to produce any document, or disclose information as to facts, which by any possibility may become pertinent on the trial of the case, and has held, on the contrary, that the right to compel the production of a document, or to elicit other evidence, is to be determined on the basis of its relevancy and competency under the issues as they stand at the time of the taking of the deposition. In other words, a party has no greater privilege under the law in the taking of a deposition, with respect to the scope of the examination of the witness and the production of books and papers, than he would have on the trial of the case, under the same state of the pleadings and issues." That a witness may refuse to answer any question that seeks to elicit incompetent or irrelevant matter, as well as matter that is privileged, is well established. 14 Ohio Jurisprudence, 39, Section 39. On the subject of privilege, it should be observed that we are not considering here the question of the admissibility of a report made by an investigator, which has been placed in the hands of an attorney by his client, as was the case in In reKlemann, 132 Ohio St. 187, 5 N.E.2d 492, 108 A.L.R., 505. What was sought *Page 49 to be developed was the memory of the witnesses as to what Cole had said to them. He was a defendant, but, as stated by counsel, had not been served with summons. However, it is obvious that to make Cole's statement admissible at all, it would be necessary that he should be a party against whom a verdict and judgment could be rendered. His admissions would then be competent evidence against him, unless they were excluded on the ground of privilege. It is inferable from the facts in the record, and it is assumed by counsel that Cole made these statements to these witnesses because he was a defendant in the action, and in order to enable his attorney to prepare his defense. The witnesses represented the parties, client and attorney for this purpose. In 28 Ruling Case Law, 571, Section 161, it is stated: "Communications between an attorney and the agent of his client are also entitled to the same protection from disclosure as those passing directly between the attorney and his client. The agent as well as the attorney is prohibited from testifying with respect thereto except by consent of the client, and this is true even though the communications are made merely with a view to establishing the relation of attorney and client, and securing professional aid for the principal." And where the privilege exists, it includes the protection of the name and address of the client. Neugass v. Terminal CabCorp., 139 N.Y. Misc., 699, 249 N.Y. Supp., 631. We find that witnesses were justified in refusing to answer, on the ground that the questions called for disclosures of confidential communications and for irrelevant and immaterial evidence in all respects except the one noted, and as to that, on the ground that it called for irrelevant and immaterial evidence. Judgment affirmed. HAMILTON, P.J., and ROSS, J., concur. *Page 50

2016-07-06 06:36:52.091685+00

Brogan

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 19 Appellant, Palmer Manufacturing Supply, Inc., f.k.a. Palmer Foundry, Inc. ("Palmer"), appeals from the decision of the Clark County Court of Common Pleas granting summary judgment to appellee, BancOhio National Bank, n.k.a. National City Bank, Columbus ("Bank"). The underlying facts and procedural history of the case are as follows. Constance Winkle was an employee of Palmer with authority to transact business on its behalf. Winkle's authority was allegedly restricted to depositing checks and other instruments payable to Palmer into Palmer's account with Bank. In January 1986, Winkle opened a personal account at Bank entitled "Echo Rental Account" apparently to accommodate her embezzlement of Palmer funds. Specifically, between January 21, 1986 and July 2, 1986, Winkle deposited numerous checks payable to Palmer into her Echo Rental account. She endorsed the back of the checks "Palmer Manufacturing" and then wrote in her own Echo Rental account number. The checks were credited to Winkle's account instead of Palmer's. Winkle embezzled somewhere between $21,000 and $25,000 from Palmer in this manner. Winkle was eventually discovered and imprisoned. On February 21, 1990, Bank received a letter from Kenneth M. Elder, Palmer's former attorney. The letter stated that Palmer had discovered the theft of its funds in April 1989, and that Palmer's position was that Bank was liable for statutory conversion for payment of the checks on forged endorsements pursuant to R.C. 1303.55(A)(3). On February 10, 1992, well over two years after its discovery of Winkle's activities and almost six years after the last forgery, Palmer filed a complaint against Bank, alleging that Bank had improperly paid on the instruments forged by Winkle. Bank filed for summary judgment, arguing that Elder's letter *Page 20 constituted a "claim" for improper payment of the checks forged by Winkle under R.C. 1304.29, and that Palmer's cause of action was filed beyond the one-year statute of limitations of R.C.1304.29(F). The trial court granted Bank's motion for summary judgment on the grounds that Palmer's action was untimely and thus barred by the one-year statute of limitations of R.C. 1304.29(F). This appeal followed. Palmer advances one assignment of error: "The statute of limitations for an action under the Uniform Fiduciary Law is four years, as set forth in Ohio Revised Code Section 2305.09, rather than one year, as set forth in Ohio Revised Code Section1304.29(F)." Before we reach the issue of which limitations period actually applies in this case, we conclude for the following reasons that the trial court erred in applying the one-year statute of limitations set forth at R.C. 1304.29(F). R.C. 1304.29(A) provides: "When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries * * *, the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof." (Emphasis added.) R.C. 1304.29(F) then provides as follows: "An action against a bank arising out of an unauthorized signature or indorsement of the item must be brought within one year after the customer has notified the bank of his claim as required by the provisions of this section." (Emphasis added.) We agree with Palmer that the "item" referred to in paragraph (F) must be interpreted with reference to "items" paid in good faith accompanying a statement of account sent by a bank to its customer referred to in paragraph (A). The checks wrongfully deposited by Winkle into her account established with Bank do not constitute "items" within the meaning of R.C. 1304.29. These checks were not items which would ever have accompanied a statement of account from Bank to Palmer. Rather, these checks were checks of Palmer's customers which would have accompanied the individual customers' statements of account from their respective financial institutions. In other words, Palmer could never have discovered the forgeries from a perusal of its own statement of account from Bank, since none of the checks forged by Winkler was returned therein. Thus, the forged checks were not "items" as defined in R.C. 1304.29 and the statute of limitations specified in R.C.1304.29(F) has no application to the facts of this case. *Page 21 That leaves us to determine what statute of limitations is applicable. When a statute-of-limitations argument is raised in the trial court, a reviewing court may consider all aspects of that argument and all available statutes in order to chose the one which best applies to the facts of the case. Lawyer's Co-opPublishing Co. v. Muething (1992), 65 Ohio St. 3d 273, 275-276,603 N.E.2d 969, 971-972. Palmer argues that the four-year statute of limitations at R.C. 2305.09(B) should apply and assumes that such statute began to run upon Palmer's discovery of the check forgeries in 1989. Bank contends that if the one-year statute of R.C. 1304.29 does not apply, then Palmer's complaint is time-barred by the two-year statute of limitations for injury to personal property set forth at R.C. 2305.10. In order to determine the applicable statute of limitations, we must first properly characterize the nature of the underlying cause of action. In United Home Life Ins. Co. v. Bellbrook Bank (1988), 50 Ohio App. 3d 53, 552 N.E.2d 954, on facts practically identical to those in the present case, we held that an endorsement of a check by an agent of the payee who expressly lacks authority to endorse checks is a forged endorsement, and payment on the endorsement by the bank is a conversion of the check pursuant to R.C. 1303.55(A)(3), the Ohio counterpart to UCC 3-419(1)(c). See, also, Morris v. Ohio Cas. Ins. Co. (Dec. 23, 1986), Franklin App. No. 86AP-739, unreported, 1986 WL 14865. Yet, because neither the Revised Code nor the UCC specifies the statute of limitations applicable when there is a conversion of commercial paper, we must look elsewhere for an appropriate statute.1 See Anderson, Uniform Commercial Code (3 Ed.1993) 60, Section 3-419:6. R.C. 2305.09 states in pertinent part: "An action for any of the following causes shall be brought within four years after the cause thereof accrued: "* * * "(B) For the recovery of personal property, or for the taking or detaining it * * *." This court has applied the four-year limitations period set forth at R.C. 2305.09(B) to actions for common-law conversion.Beaver v. Raybourne (June 23, *Page 22 1988), Miami App. No. 83-CA-34, unreported, 1988 WL 66930 ("Conversion is an action at law which clearly falls under R.C.2305.09[B]."). See, also, Abraham v. Natl. City Bank Corp. (1990), 50 Ohio St. 3d 175, 177, 553 N.E.2d 619, 621. In the absence of a specific statute to the contrary, we see no reason to conclude that the conversion of an instrument under R.C.1303.55(A)(3) should have a different limitations period than any other tort action for conversion. See Menichini v. Grant (C.A.3, 1993), 995 F.2d 1224, 1229, fn. 6; Mintz v. UnitedStates (D.N.J. 1980), 29 U.C.C.Rep.Serv. 1325, 1980 WL 98472; Hawkland, Uniform Commercial Code Series (1984) 814, Section 3-419:10 ("The statute of limitations for any action for conversion of an instrument is the same as for any tort action for conversion." Citations omitted.) Having determined that the four-year statute applies, we must now determine when the statute began to run. Palmer filed suit on February 10, 1992. Both parties appear to assume that whatever the applicable statute, it began to run when Palmer first discovered the check forgeries in April 1989, in which case Palmer's claim against Bank is not barred by the statute of limitations. If the statute began to run when Bank paid on the forged instruments in 1986, however, Palmer's claims against Bank would be barred by the four-year statute. R.C. 2305.09(B). The parties have not cited, nor have we found, any Ohio cases applying the discovery rule2 to the conversion of an instrument. We have found no Ohio case which addresses this specific matter, although Ohio courts have long held that the statute begins to run on common-law conversion at the time of the conversion, unless the fact of the conversion was fraudulently concealed from the plaintiff. Klein v. Linn (App. 1931), 10 Ohio Law. Abs. 560. Faced with a question of first impression involving the UCC, we must look to other jurisdictions for guidance. Although a few courts apply the discovery rule to negotiable instrument theft on essentially equitable grounds, see DeHart v.First Fid. Bank (D.N.J.1986), 67 B.R. 740, 743-746; Stjenholm v.Life Ins. Co. of N. Am. (Colo.App. 1989), *Page 23 782 P.2d 810, the great bulk of authority runs very strongly against this approach. See, e.g., Menichini v. Grant (C.A.3, 1993),995 F.2d 1224; Kuwait Airways Corp. v. Am. Sec. Bank (C.A.D.C.1990),890 F.2d 456; First Investors Corp. v. Citizens Bank, Inc. (W.D.N.C.1991), 757 F. Supp. 687, 690-692; Husker News Co. v.Mahaska State Bank (Iowa 1990), 460 N.W.2d 476, 477-478; Wang v.Farmers State Bank of Winner (S.D. 1989), 447 N.W.2d 516, 518-519;Fuscellaro v. Indus. Natl. Corp. (1977), 117 R.I. 558, 562-564,368 A.2d 1227, 1231; Lyco Acquisition 1984 Ltd. Partnership v.First Natl. Bank of Amarillo (Tex.App. 1993), 860 S.W.2d 117;Ins. Co. of N. Am. v. Mfr's Bank of Southfield, N.A. (1983),127 Mich. App. 278, 282-284 338 N.W.2d 214, 216; Continental Cas. Co.v. Huron Valley Natl. Bank (1978), 85 Mich. App. 319, 324-327,271 N.W.2d 218, 221; Southwest Bank Trust Co. v. Banker'sCommercial Life Ins. Co. (Tex.Civ.App. 1978), 563 S.W.2d 329,331; Gerber v. Mfrs. Hanover Trust Co. (1970), 64 Misc. 2d 687,688-689, 315 N.Y.S.2d 601, 603; Hawkland, Uniform Commercial Code Series (1984) 814, Section 3-419:10 (the cause of action should accrue when the act of conversion occurred). Where a party not engaging in fraudulent concealment asserts the statute of limitations defense, most courts have refused to apply the discovery rule to negotiable instruments, finding it contrary to UCC policies of finality and negotiability. The Iowa Supreme Court's analysis in Husker News Co. v.Mahaska State Bank (Iowa 1990), 460 N.W.2d 476, illustrates this approach. There, on facts similar to those in the present case, the court refused to apply the discovery rule to a Section 3-419 conversion action based on a forged endorsement. Plaintiff Husker's employee, Hopf, collected customer payments, forged Husker's endorsement on the checks, and deposited the funds in his personal account. As in the present case, Husker never saw the forged endorsements because the checks were routed to the various drawee banks and back to the customers in their respective statements. Husker did not discover the theft until after the Iowa statute of limitations had run. When the defendant bank asserted a statute of limitations defense, Husker asserted the discovery rule claiming that Hopf's fraudulent concealment prevented discovery. Based on the UCC objectives of predictability and finality in commercial transactions, the Iowa Supreme Court refused to apply the discovery rule to the law of commercial paper. The court, declining to elevate "the rights of unsuspecting victims of forgery over the broader interests of the commercial world," stated as follows: "As tempting a choice as that may be in an individual case, we think the public would be poorly served by a rule that effectively shifts the responsibility for *Page 24 careful bookkeeping away from those in the best position to monitor accounts and employees. Strict application of the limitations period, while predictably harsh in some cases, best serves the twin goals of swift resolution of controversies and `certainty of liability' advanced by the UCC." Id.,460 N.W.2d at 479. Accordingly, the court held the discovery rule inapplicable to conversion actions under UCC 3-419(1)(c). We find this approach convincing and believe that it advances the UCC objectives of negotiability, finality, and uniformity in commercial transactions. See Menichini, supra. We also believe that four years is ample time for a prudent business or individual, exercising due diligence, to discover a forgery and bring an action for conversion.3 See Kuwait Airways Corp.,supra (ordinary business should detect embezzlement within three-year limitations period). Thus, we hold that in the absence of fraudulent concealment by the defendant invoking the statute-of-limitations defense, a cause of action for conversion of negotiable instruments accrues when, irrespective of the plaintiff's ignorance, the defendant wrongfully exercises dominion. As there is no evidence that Bank engaged in fraudulent concealment, Palmer's claims against Bank for conversion in relation to the 1986 forgeries are barred by the statute of limitations. R.C. 2305.09(B). In light of the foregoing, the judgment of the Clark County Court of Common Pleas will be affirmed. Judgment affirmed. WOLFF and FREDERICK N. YOUNG, JJ., concur. 1 The Revised UCC (RUCC), not yet adopted in Ohio, includes,inter alia, a three-year statute of limitations for conversion, RUCC Section 3-118(g)(1), and a loss-allocation provision dealing directly with employer responsibility for fraudulent endorsement by an employee, RUCC Section 3-405. RUCC leaves tolling issues to other law. See Uniform Commercial Code (1991), Section 3-118, Comment 1, 2 U.L.A. 45 ("the circumstances under which the running of a limitations period may be tolled is [sic] left to other law pursuant to Section 1-103"). 2 The discovery rule is an equitable exception to the general rule that the statute of limitations begins to run as soon as the underlying cause of action accrues. Wyler v. Tripi (1971), 25 Ohio St. 2d 164, 166, 54 O.O.2d 283, 284-285,267 N.E.2d 419, 420. Under the general rule, lack of knowledge, mistake or misunderstanding does not toll the running of the statute of limitations. Cf. id. The discovery rule, which arises from the inability of the injured party, despite his exercise of due diligence, to know of the injury or its cause, provides that the statute of limitations begins to run as soon as the plaintiff knows, or reasonably should have known, that he has been injured by the conduct of another party. See Clutter v.Johns-Manville Sales Corp. (C.A.6, 1981), 646 F.2d 1151, 1153 (citing R.C. 2305.10). 3 In this case, Palmer did, in fact, discover the forgeries within the applicable limitations period but simply failed to bring its action until after the limitations period had run. *Page 25

2016-07-06 06:36:52.132682+00

Nader

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 671 This is an appeal from the judgment of the Court of Common Pleas for Lake County awarding prejudgment interest under R.C.1343.03(C) to plaintiffs-appellees, Sara-Beth Loder et al. On February 16, 1993, plaintiff-appellee Sara-Beth Loder, then approximately two and one-half years old, was bitten by a Labrador retriever belonging to defendants-appellants Charles E. and Donna Jean Burger ("appellants"). The appellants were covered by an insurance policy with Allstate Insurance Company ("Allstate"). Sara-Beth's parents, plaintiffs-appellees George W. and Mary A. Loder ("appellees"), brought this action on her behalf to recover for her injuries, medical expenses, and pain and suffering. Appellants, who were defended by Allstate in the underlying action, initially disputed liability by relying on a number of arguments. They asserted that the child was teasing or tormenting the dog and that they did not actually own the dog, which they claimed belonged to their son. However, on the morning of trial, appellants stipulated liability under R.C.955.28(B), Ohio's dog bite statute. Trial was held on the issue of damages. The jury returned a verdict awarding Sara-Beth $126,273 for her injuries, and awarding $4,000 to her parents for loss of consortium. On November 3, 1995, appellees filed a motion for prejudgment interest pursuant to R.C. 1343.03(C), alleging that Allstate had failed to make a good faith effort to settle the case. The trial court conducted a hearing on the motion on November 30, 1995. The hearing on this matter uncovered the following facts. After the attack, Allstate paid $9,555 of Sara-Beth's medical expenses. Appellees then hired an attorney to resolve the claim with Allstate. Counsel for appellees sent a letter to Allstate on July 1, 1994, notifying it that appellees had retained a lawyer. Allstate sent an acknowledgment letter to counsel for appellees on July 21, 1994, and informed him that the claims adjuster would be Regina Walker. *Page 672 On July 27, 1994, counsel for appellees sent a second letter to Walker requesting information regarding the limits of the appellants' insurance policy. On August 1, 1994, counsel for appellees sent a third letter to Walker, containing photographs of Sara-Beth's face so that she could review the condition of the child in order to discuss settlement. On August 9, 1994, counsel for appellees sent a fourth letter to Walker, containing the report of Dr. Bahman Guyuron, who had examined Sara-Beth and reported on the extent of the scarring on her face. The letter informed Walker that the statute of limitations was fast approaching, and repeated the earlier request for information on the appellants' insurance policy. On October 25, 1994, counsel for appellees sent a fifth letter to Walker, containing a summary of Sara-Beth's medical expenses, more photographs of her face, a copy of a supplemental report from Dr. Guyuron, and a third request for information regarding the coverage limits of the appellants' insurance policy. It also contained a demand for $500,000. On October 28, 1994, counsel for appellees sent a sixth letter to Walker, which supplemented the summary of medical expenses, and requested a response to the previous correspondence. On December 27, 1994, counsel for appellees sent a seventh letter to Walker. The letter explained once again that the two-year statute of limitations was approaching, and requested a response to the previous correspondence. On January 9, 1995, Walker sent a letter to counsel for appellees with an offer to settle the case for $65,000.1 Walker testified at the hearing that she had seen the photographs of Sara-Beth's face, read the reports from Dr. Guyuron, and reviewed the list of medical expenses. She did not seek an independent medical opinion. She testified that of the $65,000, she intended about one-third to cover Sara-Beth's legal fees, and the remaining $40,000 to compensate the girl for her injuries, pain and suffering, and future medical expenses. Counsel for appellee testified that he had never received the letter, but steadfastly maintained that it was inadequate. He filed suit on February 14, 1995, just two days before the statute of limitations would run on Sara-Beth's claim. On June 29, 1995, counsel for appellees filed a written demand for $500,000. On September 16, 1995, counsel for appellees attempted to obtain a copy of the insurance policy by serving a request for production of documents on Allstate. Counsel for Allstate indicated that the policy would be sent under a separate *Page 673 cover, but the policy was never mailed. On or about October 4, 1995, counsel for appellees called counsel for Allstate to discuss settlement. Counsel for Allstate indicated that he thought that Walker had made an offer of $60,000 or $65,000, but he would check with Allstate. At a pretrial conference held October 6, 1995, counsel for Allstate confirmed that the offer to settle was $65,000. Counsel for appellees reduced the demand from $500,000 to $160,000. In response, counsel for Allstate increased the offer to $76,000, less credit for the $9,000 in medical expenses already paid, for a net settlement offer of $67,000. Largely because the new offer did not significantly exceed the first, counsel for appellees declined to accept. At some point, the court admonished counsel for Allstate that the offer was too low. A few days after the pretrial, counsel for appellees again contacted counsel for Allstate in an attempt to settle the claim. Counsel for appellees reduced the demand to $120,000. Counsel for Allstate refused to settle, and did not make a counteroffer. On the day of trial, the counsel for Allstate conceded liability under the dog bite statute. Counsel for appellees took the opportunity to again attempt to settle the case. He reduced the demand to $109,000, less a $9,000 credit for medical expenses already paid, for a net settlement of $100,000. Counsel for Allstate refused to settle. The case went to trial, and the jury awarded $130,273. In a decision filed December 5, 1995, the trial court found that Allstate had indeed failed to make a good faith effort to settle the claim, and granted appellees' motion for prejudgment interest. Originally, the court assessed the interest from February 4, 1995.2 The court later entered a nunc pro tunc entry assessing the interest from February 16, 1993, the date of the attack. Appellants filed this appeal on December 21, 1995. Appellants assign only the following as error: "The trial court abused its discretion by awarding prejudgment interest to plaintiffs." R.C. 1343.03(C) provides: "Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause of action accrued to the date on which the money is paid, if, upon motion of any party to the action, 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 *Page 674 settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case." The party seeking prejudgment interest bears the burden of demonstrating that the other party failed to make a good faith effort to settle the case. Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St. 3d 638, 659, 635 N.E.2d 331, 348. The ultimate decision as to whether a party's settlement efforts constitute a failure to make a good faith effort is committed to the sound discretion of the trial court. Huffman v. HairSurgeon, Inc. (1985), 19 Ohio St. 3d 83, 87, 19 OBR 123, 126-127,482 N.E.2d 1248, 1252. An appellate court will review the determination for abuse of that discretion. Mobberly v.Hendricks (1994), 98 Ohio App. 3d 839, 845, 649 N.E.2d 1247,1250-1251. An allegation that the trial court abused its discretion in awarding prejudgment interest is tantamount to alleging that the trial court acted unreasonably, arbitrarily, or unconscionably. DiPiero v. Bianco (Feb. 9, 1990), Trumbull App. No. 88-T-4090, unreported, 1990 WL 10958, at 2. Such judgments, which rely so heavily on findings of fact, will not be disturbed on appeal as being unreasonable or arbitrary if supported by some competent, credible evidence. Smith v. Jaskowiak (May 17, 1991), Trumbull App. No. 90-T-4365, unreported, 1991 WL 84230, at *2; Wingard v. Johnson (June 30, 1986), Portage App. No. 1628, unreported, 1986 WL 7310, at *1. Where, as here, the defendant in a lawsuit is represented by an insurance company, the court's inquiry as to whether the defendant made a good faith effort to settle must focus on the settlement efforts of the insurance carrier. See Moskovitz,supra, 69 Ohio St.3d at 660, 635 N.E.2d at 348-349, citingPeyko v. Frederick (1986), 25 Ohio St. 3d 164, 166-167, 25 OBR 207, 208-210, 495 N.E.2d 918, 920-921. The Supreme Court of Ohio has indicated that a trial court should decline to impose a prejudgment interest penalty on the party obligated to pay the judgment where that party (1) fully cooperated in discovery, (2) rationally evaluated risks and potential liability, (3) did not attempt to delay the proceedings unnecessarily, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. Kalain v. Smith (1986),25 Ohio St. 3d 157, 25 OBR 201, 495 N.E.2d 572, syllabus. Appellants initially argue that, because they honestly believed that liability was disputed, they were under no obligation to make any settlement offers whatsoever. See Id. at 159, 25 OBR at 203, 495 N.E.2d at 574 ("If a party has a good faith, objectively reasonable belief that he has no liability, he need not make a monetary settlement offer."). We reject this argument. Appellants were apparently baby-sitting Sara-Beth when their dog attacked her. Their asserted defenses that their son actually owned the dog, and that two-and-one-half-year-old *Page 675 Sara-Beth was teasing or tormenting the dog, are patently untenable.3 Because they relied on faulty defenses, appellants' belief in their own immunity was not objectively reasonable. See Woodhams v. Moore (S.D.Ohio 1994),840 F. Supp. 517, 520. A party holding an objectively unreasonable belief in nonliability is not excused from the obligation to enter into settlement negotiations, and cannot insulate himself from liability for prejudgment interest by relying on his own naivete. See Ziegler v. Wendel Poultry Serv., Inc. (1993),67 Ohio St. 3d 10, 20, 615 N.E.2d 1022, 1031-1032 (party whose belief in nonliability was unreasonable was held liable for prejudgment interest). Appellants alternatively argue that the trial court found that Allstate had failed to make a good faith attempt to settle this claim solely because Allstate's final net settlement offer was only about one-half of the eventual verdict. They citeBlack v. Bell (1984), 20 Ohio App. 3d 84, 20 OBR 105,484 N.E.2d 739, as authority for their assertion that a trial court abuses its discretion in awarding prejudgment interest based only on a comparison of the size of the offer and the size of the verdict. In Black, the defense offered only $25,000 to settle. The jury awarded $117,200. The trial judge ordered the defendant to pay prejudgment interest. The Court of Appeals for Cuyahoga County reversed, and stated: "The statute [R.C. 1343.03(C)] affords no remedy, nor does it deny a remedy, because one or both parties predict or fail to predict the ultimate verdict accurately. If the legislature intended to allow prejudgment interest whenever the verdict exceeded or approximated the plaintiff's settlement offer, the statute would so state. At most, the proximity of one party's settlement offer to the ultimate verdict is conceivably some circumstantial evidence of the reasonableness of that party's evaluation. It falls far short of demonstrating that such party made a good faith effort to settle or that the adverse party failed to do so. Evidence at a trial may differ markedly from reasonably anticipatable evidence at any stage of negotiations, just as anticipatable evidence may have varied earlier. "Fortuitous foresight does not demonstrate good faith settlement efforts. Nor does poor predictive ability necessarily establish a failure to make such efforts." Id.,20 Ohio App.3d at 88, 20 OBR at 109, 484 N.E.2d at 743. In essence we have agreed with these principles. Jones v.Gray Drug Fair, Inc. (Nov. 16, 1990), Ashtabula App. No. 89-A-1465, unreported, 1990 WL 178941, at *7 (holding that a prevailing party could not meet her burden of *Page 676 showing a lack of good faith effort to settle by relying only on the difference between the settlement offers and the eventual verdict). We also agree that the mere fact that the final net settlement offer amounted to barely fifty-two percent of the eventual verdict at best supplies weak circumstantial evidence of a lack of good faith effort to settle.4 However, there is much more evidence in the record to support the trial court's conclusion that Allstate failed to make a good faith effort to resolve this case. Despite repeated attempts to negotiate, Walker failed to make an offer until twenty-three months had elapsed after the dog attack. In Kline v. Ross (Mar. 15, 1991), Lake App. No. 90-L-14-066, unreported, 1991 WL 35637, we held that a party's pretrial activities may be considered when determining a party's good faith. In that case, we suggested that an insurance company's eighteen-month failure to respond to attempts to negotiate could be sufficient to establish the lack of a good faith effort to settle. A settlement offer made this close to the statute of limitations deadline allows neither careful consideration nor further negotiations. The policy of R.C. 1343.03(C) requires a party to make more determined efforts to settle the case before litigation begins than Allstate has exhibited here. Additionally, Allstate did not respond with a significantly increased offer after counsel for appellees repeatedly reduced the demand. In Hughey v. Lenkauskas (Sept. 30, 1987), Lake App. No. 12-014, unreported, 1987 WL 18001, we upheld the decision of the trial court to award prejudgment interest where the prevailing party repeatedly reduced the demand from $375,000 to $60,000, and where the opposing party did not bother even to make a nominal effort to counter. The second net settlement offer of $67,000, which surpassed the initial offer of $65,000 by a mere three percent, does not constitute an aggressive effort toward settlement as is required by R.C. 1343.03(C). SeeSindel v. Toledo Edison Co. (1993), 87 Ohio App. 3d 525, 533,622 N.E.2d 706, 711 (statute requires an "aggressive effort at prejudgment settlement"). Furthermore, counsel for Allstate did not increase the second net settlement offer during the settlement negotiations at the commencement of trial after stipulating liability. Robert DiCello, an expert on personal injury litigation called *Page 677 by Allstate in the prejudgment interest hearing, admitted on cross-examination that the failure to raise the offer at that point was unreasonable. Last, Walker testified that her valuation of the case as being worth approximately $65,000, less one-third for attorney fees, rested solely on her experience. She did not seek an independent medical opinion. In Detelich v. Gecik (1993),90 Ohio App. 3d 793, 798, 630 N.E.2d 771, 774, we held that a party who "relied on nothing but his own judgment, ignor[ed] the evaluation of the doctors and attorneys, fail[ed] to read [the plaintiff's] depositions and [chose] not to seek other medical evaluation" failed to rationally evaluate the case. In this case, although Walker testified that she had read Sara-Beth's deposition and the appellees' medical reports, her reliance on her own abilities to estimate the value of the claim and failure to seek an independent medical opinion constitute evidence of a failure to rationally evaluate the claim. While not sufficient in and of itself to impose liability for prejudgment interest, we consider this failure to elicit a neutral appraisal as evidence which a trial court may properly consider when assessing a party's faith in its settlement efforts. There is ample evidence beyond the mere disparity between the final net settlement offer and the eventual verdict upon which the trial court could have determined that Allstate failed to make a good faith effort to settle the underlying claim. Because the judgment is supported by competent, credible evidence, we cannot say that it is unreasonable or arbitrary. Thus, the court below did not abuse its discretion in awarding prejudgment interest. Appellants' assignment of error is meritless, and the judgment of the trial court is affirmed. Judgment affirmed. FORD, P.J., and EDWARD J. MAHONEY, J., concur. EDWARD J. MAHONEY, J., retired, of the Ninth Appellate District, sitting by assignment. 1 In its findings of fact, the trial court mistakenly found that the offer was $64,000. 2 The court probably meant February 14, 1995, which was the date when the complaint was filed. 3 Even if appellants' assertion that their son owned the dog were true, they would still be subject to R.C. 955.28(B), inasmuch as they clearly were the keepers of the dog. SeeKhamis v. Everson (1993), 88 Ohio App. 3d 220, 623 N.E.2d 683 (keeper of the dog is one who possesses and controls the premises where the dog lives). Also, under Ohio law, a child under three cannot be held to have teased or tormented a dog.Ramsey v. King (1984), 14 Ohio App. 3d 138, 14 OBR 154,470 N.E.2d 241. 4 Walker testified that only sixty-six percent of the offer was intended to compensate Sara-Beth. If we were to consider that Allstate in reality offered only $40,000, then the offer would amount to just thirty-one percent of the final verdict. This would constitute stronger circumstantial evidence of a lack of good faith effort to settle. However, one consequence of the American Rule is that, because a party is to pay his or her own legal fees, and because those fees are usually deducted from the money that is intended to compensate the plaintiff, the plaintiff's net compensation is nearly always less than the value of the injury. We do not believe it to be significant that in this case, Walker recognized this practice. Therefore, we view the entire $65,000 as intended to compensate the plaintiff for the purpose of comparing the settlement offer to the eventual verdict. *Page 678

2016-07-06 06:36:52.370789+00

Walsh

Plaintiff-appellant, India K. Clark, appeals a decision of the Fayette County Court of Common Pleas that affirmed a State Personnel Board of Review ("SPBR") ruling upholding her demotion. The record shows that appellant was promoted to the position of interim account clerk supervisor for defendant-appellee, Ohio Department of Transportation ("ODOT"), on January 13, 1991. Her probationary period for the position commenced that same day and was scheduled to end in one hundred eighty days. In July 1991, before her probation expired, appellant was notified she did not satisfactorily complete her probationary period. She was subsequently demoted to her original position. Appellant appealed her demotion to SPBR. In an order released November 6, 1991, SPBR dismissed appellant's appeal for lack of subject matter jurisdiction, *Page 98 adopting an administrative law judge's finding that appellant had no right of appeal since her demotion occurred during the second half of her probationary period. Thereafter, appellant appealed the dismissal to the Fayette County Court of Common Pleas, which upheld the SPBR order. In a timely appeal, appellant presents the following assignment of error for our consideration1: "Does the State Personnel Board of Review have jurisdiction to review whether the appointing authority has complied with the Rules and Regulations of the State of Ohio with regard to a probationary demotion." It is appellant's position that where an appeal contains issues regarding an appointing authority's compliance with the Ohio Administrative Code provisions that govern the demotions of probationary civil servants, SPBR has jurisdiction to hear the appeal. We disagree. In pertinent part, R.C. 124.27 provides: "All original and promotional appointments * * * shall be for a probationary period, * * * and no appointment or promotion is final until the appointee has satisfactorily served his probationary period. * * * If the service of the probationary period is unsatisfactory, he may be removed or reduced at any time during his probationary period after completion of sixty days or one-half of his probationary period, whichever is greater. * * *" It is not disputed by the parties that appellant's status while working as an interim account clerk supervisor at ODOT was that of a probationary employee. Nor is there any question that she was demoted to her original position during the second half of her probationary period. Ohio law is well established in holding that the removal of a probationary employee who has completed sixty days or one half of a probationary period, whichever is greater, may not be appealed to the State Personnel Board of Review. Walton v.Montgomery Cty. Welfare Dept. (1982), 69 Ohio St. 2d 58, 23 O.O.3d 93, 430 N.E.2d 930, syllabus. See Hill v. Gatz (1979),63 Ohio App. 2d 170, 174, 17 O.O.3d 370, 374-375, 410 N.E.2d 1268,1271. Consequently, a decision of the appointing authority during the second half of the probationary period to terminate a probationary civil servant is final and not subject to administrative or judicial review. Taylor v. Middletown (1989),58 Ohio App. 3d 88, 91, *Page 99 568 N.E.2d 745, 748, citing Vonderau v. Parma Civ. Serv. Comm. (1983),15 Ohio App. 3d 44, 45, 15 OBR 71, 72-73, 472 N.E.2d 359, 360. In light of the above authority, we find that the lower court did not err in concluding that SPBR lacked jurisdiction to adjudicate appellant's appeal. An appointing authority may reduce the rank of a probationary employee after the completion of the first half of the employee's probationary period, and, by law, that demotion is not subject to any additional judicial review. For this reason, the lower court's decision affirming the dismissal of the appeal was proper. Appellant's assertion that the alleged violation of several administrative code provisions that took place when she was demoted conferred jurisdiction on SPBR to hear the appeal is not persuasive. Construing these provisions to provide an appeal to a second-half probationary employee would result in absurd results that the General Assembly has sought to avoid in promulgating R.C. 124.27. See Taylor, supra,58 Ohio App.3d at 91, 568 N.E.2d at 748, citing Walton, supra,69 Ohio St.2d at 62-63, 23 O.O.3d at 95-97, 430 N.E.2d at 933-934. Appellant also asserts that her demotion violated her due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution. The law does not support her contention. In order to be accorded procedural due process, it is incumbent on the claimant to show a legitimate claim of entitlement. Walton, supra, 69 Ohio St.2d at 64, 23 O.O.3d at 97, 430 N.E.2d at 935. The Ohio Supreme Court has previously concluded that "probationary civil service employment does not constitute a legitimate claim of entitlement to be accorded procedural due process under the Fourteenth Amendment." Id. at 65, 23 O.O.3d at 97-98, 430 N.E.2d at 935. The rationale for not conferring entitlement under this circumstance is that a civil servant's appointment is not final until the probationary period is satisfactorily completed. Taylor, supra,58 Ohio App.3d at 92-93, 568 N.E.2d at 749-750. As a result, a probationary civil servant is precluded from claiming a property interest in continued government employment that is sufficient to warrantFourteenth Amendment protection. Hill, supra,63 Ohio App.2d at 177, 17 O.O.3d at 374-375, 410 N.E.2d at 461-462. Upon perusing the record before us, it is our belief that appellant has failed to present a claim of entitlement. Appellant was a probationary employee at the time of her demotion and based on the above case law she did not possess a property interest in her position. Hence, her due process rights have not been contravened. On the basis of the aforesaid, this court is of the opinion that the lower court properly dismissed appellant's appeal for lack of jurisdiction. Accordingly, the *Page 100 sole assignment of error is overruled and the judgment of the lower court affirmed. Judgment affirmed. KOEHLER, P.J., and WILLIAM W. YOUNG, J., concur. 1 Actually, appellant's brief fails to state an assignment of error as required by App.R. 16(A)(3). Instead, a "statement of issues presented for review" was set forth, under which the above issue was listed. For purposes of clarity, we have chosen to address the issue as appellant's sole assignment of error.

2016-07-06 06:36:52.734801+00

Carpenter

In the trial court the defendant in error, Richard Milleson, obtained a verdict and judgment for $4,000 against the plaintiff in error, The Pennsylvania Railroad Company, for personal injuries claimed by him to have been sustained June 29, 1932, through the negligence of that company. The plaintiff in error alleges error in the trial court in its refusal to direct a verdict for it on the opening statement of counsel for plaintiff, at the close of plaintiff's evidence, and at the close of all the evidence. The essential facts are substantially as follows: Richard Milleson was born May 3, 1931. From that time to June 29, 1932, he lived with his parents, his six brothers, of whom the oldest was then seventeen, and a sister, seven, on a parcel of land several miles south of the city of Sandusky, the family occupying the property as tenants. The right of way of the defendant railroad company passed through this land, the dwelling house being on the west side of the railroad. On the east side were a few acres of ground on which some of the older boys of the family had a pickle patch, which they planted and cultivated in the summer of 1932. A farm-crossing over the right of way had been provided by the railroad many years before, for the use of the occupants of the land in going to and from the east side. On both sides of the right of way there were wire *Page 530 fences, and in them at the crossing were farm gates about ten feet long and four feet high. The back porch of the residence was about 67 feet from the west gate. The railroad right of way is 66 feet wide, and in the center of it is a single standard gauge railroad track, which, at the farm crossing, is about three and one-half feet lower than the natural land surface on the west side where the house stood. The farm crossing is 337 feet north of a public highway crossing called Bardshar Road, which intersects the railroad right of way. The Milleson house faced that road. South of the road 1327 feet down the track is a whistling post, 1664 feet from the farm crossing. On June 29, 1932, weeds, some of which were three or four feet high, had grown up on the slopes of the right of way to within a few feet of the stone ballast which spread out from the ends of the ties in the road bed. About three o'clock on the afternoon of June 29, 1932, plaintiff's father was at work at the cement plant some miles from his home, his mother was sewing carpet in the house, and the other children were about the premises. Donald, ten, had been working in the pickle patch and had left the west gate open wide enough for him to get through. The plaintiff, who then lacked five days of being fourteen months old, and could not walk, had, unknown to his mother, crept out of the back door of the house and onto the right of way. After a northbound train of 77 loaded coal cars passed, the mother missed plaintiff, and she and the children searched for him. His oldest brother found him lying near the west rail of the track over 100 feet north of the farm crossing. The front part of his left foot was severed and lay inside the west rail. The child's head was out of shape, and there were many bruises and cuts on his body. His clothing and body were covered with grease and dirt. He was promptly taken to a hospital where an amputation *Page 531 was performed so as to leave the heel of his foot for a stump. His skull, which was found to have been fractured, was pressed into shape, and he was kept at the hospital for two months. The head has or will, fully recover, the attending physician says. For these injuries this action was brought, and ten specifications of negligence are charged against the railroad company. They relate to five matters — weeds on the right of way, speed of the train, warning signals at the farm crossing, lookout kept by the train crew, and its control of the train. The train crew testified it was traveling 20 to 25 miles per hour. Plaintiff's oldest brother, Henry, who saw the train pass, placed its speed at 20 to 30 miles per hour. He and his mother both testified they heard the whistle blow. None of the train crew saw the plaintiff, nor did any of them know they had struck him until the next morning, when they learned about it in Sandusky. The degree of care required of the railroad company toward the plaintiff depended largely upon his legal status when he crept out upon the right of way. The company contends he was but a trespasser or licensee, and as such it owed to him only the duty not to wilfully or wantonly injure him after its agents knew of his presence on its property. Counsel for plaintiff claims he had a right to be there. It is true the crossing was established and maintained for the use of the occupants of the premises where the plaintiff lived. However, that use must be a purposeful one — the passage from one part of the land to the other part across the railroad. It did not contemplate the children playing upon the track, even at the crossing. It is hard to conceive a mindful purpose on the part of the plaintiff, a child less than 14 months old, when he crept out on the track. Under the circumstances it is difficult to see how he can be classified *Page 532 other than as a trespasser. Some Ohio cases so regard such a situation. L.S. M.S. Ry. Co. v. Liidtke, 69 Ohio St. 384,69 N.E. 653; Rd. Co. v. Harvey, 77 Ohio St. 235, 83 N.E. 66, 122 Am. St. Rep., 503, 19 L.R.A. (N.S.), 1136; Hannan, Admr., v.Ehrlich, 102 Ohio St. 176, 131 N.E. 504. But assuming the plaintiff's status was in the exercise of his right, it was the duty of the company to exercise ordinary care for his safety. Did it do so? The trial court charged the jury at some length regarding the duty imposed upon the railroad company to keep the weeds cut along its right of way, and quoted Section 7149, General Code. We think this law was not intended as a safety measure for the protection of persons upon the right of way, but rather for the protection of adjoining lands from noxious weeds growing on the right of way. The weeds are of moment here only as an obstruction to view, and the statute makes no difference in this respect. Had the weeds or grass been a foot high along that path that June afternoon, they would have fully obstructed the view of the trainmen of this child creeping down the slope, and that is the only way the presence of weeds could have affected the situation. This was a private right of way in the open country, some miles from any town, and the track was straight and level. The company had the right to operate its trains at such speed as it wished, having regard for the safety of the persons and property in its charge. Could it be said that a speed of 20 to 30 miles per hour for that train was negligence? It is urged that the company owed a duty to give warning signals by whistle and bell at this farm crossing, and that Section 8853, General Code, applies to a farm crossing. The signal provided by that section is the sounding of the whistle and ringing of the bell 80 to 100 rods from a crossing. As this farm crossing was but 14 feet more than 100 rods from the *Page 533 whistling post for the highway crossing south of the farm crossing — and the mother and brother of the plaintiff, as well as the train crew, testified the whistle was blown — that contention seems to be out, regardless of whether the statute requires such warning at a farm crossing. It is also difficult to understand what such warning signals could have meant to this baby that day. Recognizing as we must that the operation of a heavy train such as this was a practical matter, and that the men in charge of it have various duties to properly claim their attention, we do not think the mere fact that the trainmen did not see the small, creeping child on that track away from the highway, and probably even some distance from the farm crossing, was evidence of negligence on their part in respect to their lookout, or the control they maintained over their train. To all of these considerations, that of proximate cause must be added. Having regard for all of these things, and testing them by the standard of ordinary care, we can but conclude that reasonable minds could arrive at but one conclusion under this evidence — that negligence was not proven. This being true, it was the duty of the trial court to have granted defendant's motion for a verdict on the evidence, and on it to have entered final judgment. That not having been done, this court will reverse the case and enter such judgment. Judgment reversed. LLOYD and OVERMYER, JJ., concur. *Page 534

2016-07-06 06:36:52.447362+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). Following a jury trial, defendant-appellant Leron Jones was convicted of having a weapon under a disability in violation of R.C. 2923.13(A)(3) with two gun specifications, which provided, among other things, that he displayed, brandished, indicated he possessed, or used a firearm while committing the offense. On appeal, he presents several assignments of error, none of which is well taken. In his first assignment of error, Jones argues that the gun specifications and the underlying weapons-under-disability charge ran afoul of constitutional protections against double jeopardy. The thrust of his argument is that they all involved the same offense. The double-jeopardy clauses of the state and federal constitutions prevent a defendant from being convicted or sentenced more than once for the same offense. It is well settled in Ohio, however, that firearm specifications are not separate offenses, but rather penalty "enhancements."1 As a result, the constitutional prohibition against multiple punishments does not apply to penalty-enhancing factors such as the firearm specifications. Accordingly, we hold that there was no constitutional violation here. Jones further argues in this assignment of error that his trial counsel was ineffective because counsel failed to file a motion to dismiss on double-jeopardy grounds. We hold that counsel was effective because there was no substantial violation of Jones's rights, and because he was clearly not prejudiced by trial counsel's failure to raise the issue of double jeopardy.2 As a result, we overrule Jones's first assignment of error. In his second assignment of error, Jones challenges the clarity of the jury instructions given for the two specifications. Because the jury instructions were not objected to at trial, we evaluate this assignment under a plain-error analysis.3 After reviewing the jury instructions, we cannot say that the jury was misled by them. Accordingly, Jones's second assignment of error is overruled. Therefore, the judgment of the trial court is affirmed. Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. PAINTER, P.J., SUNDERMANN and WINKLER, JJ. To the Clerk: Enter upon the Journal of the Court on January 26, 2000 per order of the Court _______________________________. Presiding Judge 1 See State v. Blankenship (1995), 102 Ohio App. 3d 534, 547,657 N.E.2d 559, 567; State v. Carter (May 21, 1999), Lucas App. Nos. L-97-1162, L-97-1163, and L-97-1169, unreported, appeal not allowed (1999), 86 Ohio St. 3d 1489, 716 N.E.2d 721; State v. Russell (June 30, 1998), Athens App. No. 97 CA 37, unreported; State v. Willingham (Feb. 16, 1989), Cuyahoga App. Nos. 54767, and 56464, unreported. 2 See Strickland v. Washington (1984), 466 U.S. 668,104 S. Ct. 2052; State v. Bradley (1989), 42 Ohio St. 3d 136, 538 N.E.2d 373, paragraph two of the syllabus. 3 See Crim.R. 30(A); State v. Underwood (1983), 3 Ohio St. 3d 12,444 N.E.2d 1332, syllabus.

2016-07-06 06:36:55.897379+00

Young

OPINION Plaintiff-appellant, Christopher T. Grooms, appeals the decision of the Brown County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Nationwide Insurance Company ("Nationwide"). On April 18, 1997, Christopher was injured in an automobile accident caused by Charles Marshall, an underinsured driver. Marshall had liability coverage of $12,500, and his carrier has paid this amount to Christopher. At the time of the accident, Christopher was an emancipated adult, living with his wife and children away from his parents, Treber and Betty Grooms. Treber and Betty ran a family farm, and they insured their automobiles under a commercial policy with Nationwide. Christopher's automobile, a Jeep Cherokee, was listed on this commercial policy. Christopher remained a named insured of this policy, even after his emancipation. The arrangement provided a lower premium than he could afford on his own. In general, the policy included underinsured motorist ("UIM") coverage of $100,000, equivalent to the policy's liability limit. Treber, though, signed a waiver with Nationwide in 1991 to reduce the UIM coverage to $25,000 for Treber's vehicle, a Ford pickup used for farm purposes. It was in this pickup that Christopher was injured. As part of his suit against Marshall, Christopher also sought a declaration against Nationwide that he was entitled to the general $100,000 UIM limit under the Nationwide policy. Nationwide responded that the $25,000 UIM coverage limit on the Ford pickup was applicable because Treber had executed a rejection of equivalent UIM coverage on the pickup. Both parties filed motions for summary judgment. The trial court granted summary judgment in Nationwide's favor, ruling that the $25,000 limit was the applicable UIM coverage. Christopher appeals. Assignment of Error No. 1: THE TRIAL COURT COMMITTED ERROR IN DENYING THE APPELLANT THE RIGHT TO COLLECT THE UNDERINSURED MOTORIST COVERAGE THAT HE HAD PAID FOR UNDER HIS AUTO INSURANCE POLICY. Assignment of Error No. 2: REGARDLESS OF WHICH COVERAGE IS APPLICABLE, APPELLANT IS NOT BOUND BY ANY REJECTION OF UM/UIM COVERAGE MADE BY HIS FATHER AND THE TRIAL COURT ERRED BY SO RULING. Christopher contends that $100,000 was the UIM coverage limit applicable to his accident. He asserts that he was not bound by Treber's waiver of equivalent *Page 865 UIM coverage. Christopher argues that Nationwide was required to get an express waiver from him to bind him to a lower coverage limit. Nationwide asserts that because Treber executed a rejection of equivalent coverage for the Ford pickup in which Christopher was injured, Christopher should be limited to the lower UIM coverage limit for the pickup. It is well-settled that UIM coverage was designed by the General Assembly to protect persons, not vehicles. Scott-Pontzer v.Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St. 3d 660, 664, citing Martinv. Midwestern Group Ins. Co. (1994), 70 Ohio St. 3d 478, paragraph one of the syllabus. Thus, Nationwide's contention that a UIM coverage limit ostensibly applicable to a vehicle, rather than a limit applicable to a person, should govern the result in this case is unfounded. We must therefore consider whether Treber's rejection of equivalent UIM coverage is binding upon Christopher. Nationwide argues that the current version of R.C. 3937.18(C), which imputes the waiver of equivalent UIM coverage by one named insured to all named insureds of the same policy, is applicable to the instant case. R.C. 3937.18(C) was amended into its present form effective September 3, 1997, months after Christopher's accident and even longer after the present contract of insurance was completed. The Ohio Supreme Court conclusively held in Ross v. Farmers Ins. Group of Cos. (1998),82 Ohio St. 3d 281, syllabus: For purpose of determining the scope of coverage of an underinsured motorist claim, the statutory law in effect at the time of entering into a contract for automobile insurance controls the rights and duties of the contracting parties. Thus, contrary to Nationwide's assertion, current R.C. 3937.18(C) is inapplicable. We therefore look to former R.C. 3937.18(C) to resolve the instant dispute. Former R.C. 3937.18(C) read: The named insured may only reject or accept both coverages offered under division (A) of this section. The named insured may require the issuance of such coverages for bodily injury or death in accordance with a schedule for optional lesser amounts approved by the superintendent, that shall be no less than the limits set forth in section 4509.20 of the Revised Code for bodily injury or death. Unless the named insured requests such coverages in writing, such coverages need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverages in connection with a policy previously issued to him by the same insurer. Under former R.C. 3937.18(C), UIM coverage "can be eliminated from * * * a policy of insurance only by the express rejection of that provision by the insured." Abate v. Pioneer Mut. Cas. Co. (1970), 22 Ohio St. 2d 161, *Page 866 paragraph one of the syllabus. If UIM coverage is not expressly rejected by the named insured, then the equivalent amounts of liability and UIM coverage are provided by operation of law. Id. at paragraph two of the syllabus. Christopher contends that since he did not execute an express rejection of equivalent UIM coverage, the general $100,000 UIM policy limit is applicable to him. Nationwide does not challenge this contention. Rather, Nationwide argues that Treber signed the rejection as Christopher's agent. Nationwide further asserts that even if Treber was not Christopher's agent, Christopher acquiesced in the rejection by not expressly denying it between the time of Treber's rejection and the time of the accident. In Braden v. State Farm Mut. Auto. Ins. Co. (1994), 92 Ohio App. 3d 777, this court considered the situation where an alleged agent of the named insured executes a rejection of equivalent UIM coverage. In that case, this court determined that "[b]y virtue of R.C. 3937.18, a named insured must knowingly and expressly ratify an agent's act of rejecting equivalent [UIM] coverage in order for the rejection to be valid." Id. at 781. An authorized agent can reject equivalent UIM coverage, but if there is not an express statement of authority from the named insured, the insurance company must "obtain an express statement, written or otherwise, from a named insured rejecting equivalent [UIM] coverage when an insurance policy is purchased." Id. at 781-782. There must be more than the named insured simply paying the premium or accepting the benefits of the policy. Id. at 781. In Braden, the only named insured was Jennifer Braden, an adult. The policy application was completed by her mother, Loreda Braden, who signed a document reducing the UIM coverage to an amount below that of liability coverage limits. Even though this application and document were completed by Loreda and the insurance agent in Jennifer's presence, Jennifer evidently did not understand the consequences of lowering the UIM policy limit. Id. at 779. More important, Jennifer gave no indication that Loreda had express authority to make such a decision. The discussion between Loreda and the insurance agent could not thus amount to an express rejection by Jennifer. Id. at 781. Under former R.C. 3937.18(C), one named insured's (Treber) rejection of equivalent UIM coverage is not automatically effective against other named insureds (Christopher and Betty) as would be the case under current R.C. 3937.18(C). Under the former law, each named insured must expressly reject such equivalent UIM coverage for all of them to be bound. See, also, Owens v. *Page 867 State Farm Mut. Ins. Co. (1996), 112 Ohio App. 3d 200,204-205, discretionary appeal not allowed, 77 Ohio St. 3d 1493. Christopher never expressly rejected equivalent UIM coverage. Nothing in the depositions or other documents indicate that Christopher gave Treber express authority to reduce UIM coverage on his behalf or that Christopher indicated that Treber had such authority. The trial court erred in granting summary judgment to Nationwide. $100,000 is the applicable UIM coverage limit and summary judgment to that effect is hereby granted in Christopher's favor. The assignments of error are sustained. Judgment reversed. POWELL, P.J., and VALEN, J., concur.

2016-07-06 06:36:52.579814+00

DECISION AND JUDGMENT ENTRY This matter comes before the court on appeal from the Ottawa County Court of Common Pleas. The facts giving rise to this appeal are as follows On February 2, 2000, appellant, Ryan Hickam, was indicted on one count of possessing the controlled substance lysergic acid diethylamide ("LSD"), a violation of R.C. 2925.11(A) and a felony of the fifth degree (Case No. 00-CR-009). He was arrested and taken into custody on February 3, 2000. On February 7, 2000, appellant was released on a personal recognizance bond. On October 5, 2000, appellant was indicted on one count of burglary, a violation of R.C. 2911.12(A)(2) and a felony of the second degree (Case No. 00-CR-108). Appellant was arrested on October 5, 2000 and held in the Ottawa County Detention Facility on a $20,000 bond. On December 4, 2000, appellant entered guilty pleas to one count of possessing LSD (Case No. 00-CR-009) and one count of burglary in the second degree (Case No. 00-CR-108). He was found guilty of both on December 18, 2000 and both of his bonds were continued. Appellant's sentencing hearing for both cases was held on January 31, 2001 where he was sentenced to a community control sanction. Specifically, he was sentenced to serve six months in the Ottawa County Detention Facility and six months in a community based correctional facility. He was advised that any violation of the sanction could lead to a one year prison term for his drug conviction and an eighteen month prison term for his burglary conviction. On March 28, 2001, Ottawa County probation officer Andrew Haley filed a "complaint of probation violation" against appellant. The complaint alleged that appellant had violated the terms of his community control sanction and therefore had been removed from the community based correctional facility. On May 3, 2001, appellant was found guilty of violating his community control sanction. He was sentenced to one year in prison for the drug offense and eighteen months in prison for the burglary. The sentences were ordered served consecutively. He was given fifty-eight days credit for time already served in Case No. 00-CR-009. He was given two hundred twenty-four days credit for time already served for the burglary conviction. Appellant now appeals contending that he is entitled to six hundred sixty-six days credit for time served. The prosecutor contends that appellant is entitled to eighty-nine days credit for Case No. 00-CR-009 and two hundred one days for Case No. 00-CR-108. 2967.191 states: "The department of rehabilitation and correction shall reduce the stated prison term of a prisoner or, if the prisoner is serving a term for which there is parole eligibility, the minimum and maximum term or the parole eligibility date of the prisoner by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial, confinement for examination to determine the prisoner's competence to stand trial or sanity, and confinement while awaiting transportation to the place where the prisoner is to serve the prisoner's prison term. While the Adult Parole Authority has the duty to grant such credit, the trial court has the duty to properly calculate the number of days to be credited. State v. Gregory (1995), 108 Ohio App. 3d 264. Appellant's contention that he is entitled to six hundred sixty-six days credit is not supported by the record and is without merit. However, the trial court's judgment entry is silent as to what was included in the court's calculations. Nor does the record reveal any material which can aid this court in determining the correct calculation. In fact, the "cumulative time report" provided by the Ottawa County Sheriff only confuses the court in that it lists appellant's initial incarceration date for Case No. 00-CR-108 as being September 13 when the record shows that appellant was not indicted for Case No. 00-CR-108 until October 5. For this and other deficiencies in the record, we are unable to conduct a meaningful appellate review of the issue raised in this case. Accordingly, appellant's assignment of error is found well-taken. This matter is affirmed as to appellant's conviction and reversed as to appellant's sentencing. This matter is remanded to the trial court for the limited purpose of supporting appellant's time served credit calculations with pertinent dates and locations in the judgment entry. Judgment of the Ottawa County Court of Common Pleas is affirmed, in part and reversed, in part. Costs to be divided equally between the parties. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. Melvin L. Resnick, J., Mark L. Pietrykowski, P.J., JUDGES CONCUR.

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OPINION This is an appeal of a judgment of the Ashtabula County Court of Common Pleas, upon a jury verdict, convicting appellant, Anthony Hargrove, of felonious assault. In January 2000, appellant was indicted on one count of felonious assault, in violation of R.C. 2903.11, a felony of the second degree. The indictment stemmed from an incident that occurred between appellant and his girlfriend, Kristol McMillen, on November 16, 1999. At arraignment, appellant pleaded not guilty. The record reveals that, on the evening of November 16, 1999, the victim, Kristol McMillen, and her friend, Josie Bennett ("Bennett"), drove to a Burger King restaurant, after work. They then proceeded to the residence of Jason Boles ("Boles"), a friend of appellant, to tell him that appellant had told the victim that she had to terminate her friendship with Boles. At trial, the state's witnesses testified that the victim and Boles talked in the driveway in front of the house. After some time had passed, appellant arrived at the house. According to the state's witnesses, appellant grabbed the victim, yelled at her, and forced her behind the house. During the ensuing struggle, appellant struck the victim on the head with a small silver pistol causing her to bleed from a cut on her ear. Appellant then released the victim. The victim, accompanied by Bennett and Boles, went into the bathroom of the house to clean up. The victim testified that she stayed in the bathroom for thirty minutes or more, because appellant was inside the house, and she was afraid. When the victim realized that the police had not been called, she left the house and got into the passenger seat of her car, with Bennett driving. Both the victim and Bennett testified that appellant ran out of the house shouting at the victim and put a gun up to the car's passenger side window. Bennett drove directly to the police station, where the victim filed a complaint and gave a statement. A jury trial commenced May 16, 2000 and concluded the following day. Appellant presented Boles and two women, who were also residents of the house, as his witnesses. Boles testified that he and the victim did talk, but when appellant arrived, he spoke calmly with the victim. Later, Boles testified, he went up to the bathroom of the house with the victim, where they "made out." Boles further testified that, when the victim later left, she was completely unharmed and appellant did not follow her and Bennett out to the car. Appellant's other two witnesses, Jessica Malinkey and Valerie Hogkinson, testified that they did not observe a scuffle between appellant and the victim. They also attested that they did not see any blood on the victim or see anyone give the victim a towel to clean up blood. Further, they stated that they did not see appellant go out after the victim when she left. On March 18, 2001, the jury returned a unanimous guilty verdict. Subsequently, appellant filed a motion for a new trial. The trial court, after a hearing to consider the motion, overruled it, and sentenced appellant to five years of community control. From this judgment, appellant filed a timely notice of appeal. On June 23, 2001, appellant's counsel filed a motion to withdraw from representation because he found "the appeal to be wholly frivolous." On the same day appellant's counsel filed an Anders brief, pursuant toAnders v. California (1967), 386 U.S. 738, specifying portions of the record that might arguably support an appeal. This court granted counsel's motion to withdraw and appointed substitute counsel for appellant. In addition, this court granted leave to file a supplemental brief. In his Anders brief, and his supplemental brief, appellant raises the following assignments of error: "[1.] The appellant did not receive the effective assistance of counsel in violation of the Sixth Amendment and Fourteenth Amendment to the United States Constitution and Article 1, Section 10 of the Ohio Constitution." "[2.] The trial court erred to the prejudice of appellant when it denied the state's request to instruct the jury on the lesser included offense of assault." "[Supplemental assignment 3.] The appellant received ineffective assistance of trial counsel in violation of his constitutional rights." "[Supplemental assignment 4.] The trial court erred by failing to excuse a biased juror for cause, to the prejudice of appellant." "[Supplemental assignment 5.] Appellant's conviction was against the manifest weight of the evidence." "[Supplemental assignment 6.] The trial court erred by denying defendant's motion for a new trial." As some of appellant's assignments of error are related, we will group them for discussion. In appellant's first assignment of error and his third supplemental assignment of error, he argues that he was denied the effective assistance of counsel at his trial. He received ineffective assistance, appellant argues, because: his counsel did not obtain the presence of Assistant Prosecutor David Foster ("Foster") to impeach the credibility of a prosecution witness; his counsel failed to challenge a juror for cause, when the juror indicated, during voir dire, that he would be inclined to believe the testimony of a police officer more than the testimony of other citizens; and, his trial counsel refused an instruction on the lesser included offense of assault, when the state requested it. "Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance." State v. Bradley (1989), 42 Ohio St. 3d 136, paragraph two of the syllabus, citing Strickland v. Washington (1984),466 U.S. 668. A licensed attorney is presumed to have rendered effective assistance in representing a criminal defendant; thus, appellant bears the burden of proving ineffective assistance. State v. Kerns (July 14, 2000), 11th Dist. No. 99-T-0106, 2000 Ohio App. LEXIS 3202, at *7. On the morning of Wednesday, May 17, 2000, appellant's counsel sent a subpoena to the Prosecutor's office for Foster, requiring that he appear to testify that day as a rebuttal witness. Specifically, the defense wanted to rebut the victim's testimony with regard to the no-contact order between the victim and appellant. The victim testified she was informed that it was permissible for her and appellant to associate, so long as there was no problem between them. Foster was unavailable to testify because he was out of the state. Appellant's counsel requested that the court grant a continuance, so that Foster's deposition could be secured. The court denied this request, and the trial proceeded without Foster's testimony. It is clear from these facts that appellant's attorney's representation did not fall below the standard of reasonable representation. While appellant's attorney was not able to perfect service on Foster, when confronted by the unavailability of his impeachment witness, appellant's attorney attempted to secure the testimony by deposition. The record is devoid of any explanation why a deposition was not taken at an earlier time. Appellant's counsel's conduct falls within the minimum standards of reasonable representation. The court's denial of appellant's motion for a continuance does not make the representation ineffective. See State v.Clemons (1998), 82 Ohio St. 3d 438, 451, 1998-Ohio-406. Appellant also claims that he received ineffective assistance of counsel because his attorney failed to effectively question or challenge a juror for cause, when the juror indicated that he would believe a police officer to be a more credible witness. When considering the conduct of defense counsel in voir dire, the Supreme Court of Ohio has explained that defense counsel's voir dire does not have to take a specific form, and counsel does not have to ask any specific questions. State v. Hartman (2001), 93 Ohio St. 3d 274, 300,2001-Ohio-1580. Furthermore, an appellate court "`will not second-guess trial strategy decisions' such as those made in voir dire, and `"a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id.; quoting Statev. Mason (1998), 82 Ohio St. 3d 144, 157-158, 1998-Ohio-370. When questioned by the court, the juror in question indicated that he might tend to think police officers to be more credible than other witnesses at a trial. However, in response to further questioning by the court, the juror indicated that he would be able to judge each witness's credibility based on the testimony given at trial. Defense counsel then asked the juror whether, considering the fact that the officers were not witnesses to the event, he could judge the credibility of the witnesses and make a decision based upon their testimony. The juror indicated that he could. Thus, appellant's counsel's acceptance of the juror did not constitute ineffective assistance of counsel. See State v. Bair (Apr. 8, 1999), 8th Dist. No. 72881, 1999 Ohio App. LEXIS 1572, at *29. At trial, appellant's counsel opposed the state's request for an instruction on the lesser-included offense of simple assault, arguing that it was not supported by the facts shown at trial. Appellant clams that his counsel was ineffective because he opposed the instruction. An attorney's strategic decisions and trial tactics will not support a claim of ineffective assistance of counsel. State v. Clayton (1980),62 Ohio St. 2d 45, 48-49. "[E]rrors of judgment regarding tactical matters do not substantiate a claim of ineffective assistance of counsel." Statev. Lundgren (Apr. 22, 1994), 11th Dist. No. 90-L-15-125, 1994 Ohio App. LEXIS 1722, at *53. "The tactical choice not to pursue an instruction on a lesser included offense falls within the realm of sound trial strategy, and will not give rise to a claim of ineffective assistance of counsel." State v. Simpson (June 26, 1998), 11th Dist. No. 97-L-086, 1998 Ohio App. LEXIS 2914, at *8, citing Clayton, supra, at 47. Thus, counsel's opposition to an instruction on the lesser-included offense of simple assault does not constitute ineffective assistance of counsel. Appellant's first and third assignments of error are without merit. In appellant's second assignment of error, despite his initial opposition to an instruction on the lesser-included offense of simple assault, he now argues that the trial court erred by failing to give it. Appellant claims that the facts presented at trial could have supported an instruction on the lesser-included offense. This may be true, but appellant failed to present a timely objection to the court's instruction. When a party fails to object to a jury instruction prior to the jury retiring to consider its verdict, as required by Crim.R. 30, the party waives any claims of error based upon the erroneous instruction. Statev. Long (1978), 53 Ohio St. 2d 91, paragraph one of the syllabus. As appellant did not object to the court's failure to give an instruction on simple assault, but rather argued that the court should refuse to give such an instruction, appellant has waived all error, save for plain error, based upon the lack of such an instruction. Id. at 94-95. A jury instruction does not constitute plain error unless the outcome of the trial would clearly have been different but for the error. Id. at paragraph two of the syllabus. See also State v. Moreland (1990),20 Ohio St. 3d 58, 62. In addition, "notice of plain error is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Long, supra, at paragraph three of the syllabus. In this case, appellant cannot show that the outcome of the trial would certainly be different if the court had given the instruction on the lesser-included offense of simple assault. In a case similar to the case at bar, the Supreme Court of Ohio determined that, when trial counsel limited the jury instructions to not include lesser-included offenses, the decision was a matter of trial strategy and not plain error. Statev. Clayton (1980), 62 Ohio St. 2d 45. Appellant's second assignment of error is without merit. In appellant's fourth assignment of error, he argues that the trial court erred by failing to excuse a juror for cause, when appellant moved the court to do so. This, appellant claims, forced him to use one of his four peremptory challenges to exclude this juror. Prior to voir dire, appellant's trial counsel informed the court that he was acquainted with one of the prospective jurors. The court conducted a voir dire of the prospective juror in chambers, with the prosecutor and appellant's counsel present. During the course of this voir dire, it was revealed that, prior to the trial of the case sub judice: the juror's husband had written letters to the newspaper concerning appellant's counsel; the juror and her husband hung door knockers on doors, regarding counsel's involvement with the City of Geneva; counsel had to write a letter to the juror concerning phone calls made to her sister late at night; and, several years before the trial, counsel was going to represent the juror's husband concerning a marriage dissolution. During the course of this voir dire, the court and appellant's counsel asked the juror whether she could be a fair and impartial juror, in spite of her prior interactions with appellant's counsel. The juror repeatedly responded that she could be a fair and impartial juror. The court overruled appellant's motion to dismiss the juror for cause. Appellant excluded the juror from the panel with a peremptory challenge. Pursuant to R.C. 2313.43, the validity of a challenge of a juror for cause "shall be determined by the court and be sustained if the court has any doubt as to the juror's being entirely unbiased." It is within the court's discretion to determine the juror's ability to be impartial.State v. White (1998), 82 Ohio St. 3d 16, 20, 1998-Ohio-363; citing Statev. Williams (1983), 6 Ohio St. 3d 281, 288. When an appellate court reviews a decision of a trial court on a challenge to a prospective juror, the appellate court will not reverse the trial court's decision absent a showing of an abuse of the trial court's discretion. White, supra, at 20. Further, the appellate court must give deference to the trial judge, who is able to see and hear the juror. Wainwright v. Witt (1985), 489 U.S. 412, 426. We find no abuse of discretion in the trial court's decision not to dismiss the juror. The juror consistently asserted that she could be fair and impartial despite her acquaintance with appellant's counsel. The court was entitled to accept her assurances to this effect. See State v.Jones (2001), 91 Ohio St. 3d 335, 338, 2001-Ohio-57. Thus, appellant's fourth assignment of error is without merit. In appellant's fifth assignment of error, he argues that his conviction was against the manifest weight of the evidence. When an appellate court reviews a criminal verdict to determine whether it is against the manifest weight of the evidence, it: "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, 1997-Ohio-52, citing State v. Martin (1983), 20 Ohio App. 3d 172, 175. The case sub judice is not a case in which the evidence weighs so heavily against the conviction that we must reverse the conviction and grant a new trial. Appellant asserts three arguments in support of his conclusion that his conviction was against the manifest weight of the evidence. First, he claims that there was a dispute as to whether there was blood on the victim's shirt the night of the assault. Second, he argues that there was a dispute as to the extent of the victim's injuries, and whether the victim had a lump on her head or not. Third, appellant argues that there is a dispute as to whether appellant had a gun or a cell phone in his hand when he assaulted the victim. Appellant's first and second arguments are not well taken. Appellant was convicted of violating R.C. 2903.11(A)(2), which provides that "[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance." Even if appellant were correct, and the victim had not bled on her shirt and did not have a lump on her head, the jury did not lose its way in determining that appellant at least attempted to cause physical harm to the victim with a deadly weapon. Appellant's third argument is likewise not well taken. Both the victim and the state's witness, Bennett, testified that appellant struck the victim with a small, silver gun. Appellant impeached Bennett with prior testimony, but in that testimony, Bennett still testified that she thought it was a gun and that she was "almost positive" that it was a gun. In addition, both the victim's and Bennett's statements to the police, taken hours after the incident occurred, clearly state that appellant hit the victim with a gun. Defense witness Jessica Malinkey testified that appellant always carried around a small silver cell phone, however, she also testified that she was inside the house and did not see any altercation between appellant and the victim. Based on this evidence adduced at trial, the jury did not clearly lose its way in determining that appellant used a gun when he caused or attempted to cause physical harm to the victim. Appellant's fifth assignment of error is without merit. In appellant's sixth assignment of error, he claims that the trial court erred by overruling his motion for a new trial. Appellant asserts that the court should have granted his motion for a new trial based on the fact that the state violated Crim.R. 16 by failing to disclose the EMT report made the night of the incident as exculpatory evidence. Appellant claims that, even though the report was entered into evidence at trial as a joint exhibit, and read to the jury, he could have subpoenaed the EMT to testify as to the lack of a lump on the victim's head or to the victim's demeanor during the examination. Appellant did not submit an affidavit in support of his motion for a new trial. The state claims that it never had the EMT report in its case file, and thus the state did not violate any duty to disclose it. Motions for a new trial are governed by Crim.R. 33, which states, in pertinent part: "(A) Grounds "A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: "* * * "(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state." Further, Crim.R. 33(C) states that: "[t]he causes enumerated in subsection (A)(2) and (3) must be sustained by affidavit showing their truth * * *." A court's decision on a motion for a new trial is a matter of the court's sound discretion, and an appellate court will not overturn that decision absent a showing of an abuse of the court's discretion.State v. Schiebel (1990), 55 Ohio St. 3d 71, paragraph one of the syllabus. A trial court does not abuse its discretion when it overrules a motion for a new trial that is not properly supported by affidavits as required by Crim.R. 33(C). Toledo v. Stuart (1983), 11 Ohio App. 3d 292; see alsoState v. Johnson (June 17, 1988), 5th Dist. No. 87AP110086, 1988 Ohio App. LEXIS 2711, at *5. In the case sub judice, appellant did not submit affidavits in support of his contention that the state had committed misconduct by withholding exculpatory information from appellant in violation of Crim.R. 16. Indeed, appellant did not include the state's failure to disclose the EMT report in his written motion for a new trial. Thus, the court did not abuse its discretion in overruling appellant's motion for a new trial.Furthermore, for a court to grant a new trial under Crim.R. 33, "[i]t must affirmatively appear from the record that the [appellant] was prejudiced by one of the grounds set forth in section (A) of the rule."State v. Nahhas (Mar. 16, 2001), Trumbull App. No. 99-T-0179, 2001 Ohio App. LEXIS 1236, at *10. As discussed above, appellant could have been convicted of felonious assault whether the victim had a lump on her head or not. Thus, the trial court's determination that appellant was not prejudiced by the state's failure to disclose the EMT report did not constitute an abuse of discretion. Appellant's sixth assignment of error is without merit. For the foregoing reasons, the judgment of the Ashtabula County Court of Common Pleas is affirmed. WILLIAM M. O'NEILL, P.J., DONALD R. FORD, J., concur.

2016-07-06 06:36:52.694577+00

OPINION Defendant-Appellant Herman Smith appeals from his conviction and sentence from the Perry County Court of Common Pleas on one count of felonious assault with a firearm specification in violation of R.C. 2903.11(A)(2) and R.C. 2941.145 and one count of having weapons while under disability in violation of R.C. 2923.13(A)(2). Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE On October 1, 1997, the Perry County Grand Jury indicted appellant on one count of felonious assault in violation of R.C.2903.11(A)(2), a felony of the second degree, and one count of having weapons while under disability in violation of R.C.2923.12(A)(2), a felony of the fifth degree. The felonious assault charge included a firearm specification. At his arraignment on October 15, 1997, Appellant entered a plea of not guilty to the charges contained in the indictment. An entry memorializing Appellant's not guilty plea was filed on October 24, 1997. Appellant, on October 15, 1997, also signed a written "Waiver of Time" waiving all statutory and constitutional speedy trial requirements. A stipulation signed by both counsel was filed on March 6, 1998, stating that the parties stipulated to the following facts: "1. That the Defendant in this case, Herman Smith, has previously been convicted of two counts of Aggravated Assault, Section 2903.12, each a felony of the fourth degree, in the Common Pleas Court of Richland County, Ohio, January 6, 1987, case number 86-DR-255A. 2. That the offense of Aggravated Assault of which the defendant has been convicted is defined as a felony offense of violence by Section 2901.01(A)(9) Revised Code." Both counsel further agreed and stipulated that "subject to the approval of the Court, this STIPULATION may be submitted to the trier of the fact herein." On March 10, 1998, appellee filed a notice of its intention pursuant to Ohio Evid.R. 609(B), to use evidence of certain of appellant's prior convictions. Thereafter, a jury trial commenced on March 16, 1998. The following evidence was adduced at the trial. On May 17, 1997, Mark Cacioppo, the owner of a towing and recovery business that does repossessions, traveled from his home in Tallmadge, Ohio, to Perry County to repossess a 1988 Ford van owned by Rebecca Keyser, a disabled woman who uses either a cane and brace or a wheelchair. Cacioppo testified that at such time, he had a written order to repossess the van for Auto Loan, Inc., the lienholder. Keyser, however, had received a `Notice of Default and Intent to Repossess" dated May 9, 1997, from Auto Loan indicating that she had until May 24, 1997, to cure her default by paying $5,088.69. Typically before traveling into other counties to repossess property, Cacioppo notifies both the local police department and sheriff's department of the repossession. Cacioppo stated that he had notified the sheriff's department just prior to the repossession of Keyser's vehicle. The radio and telephone log for the Perry County Sheriff, however, did not indicate that such a call had been received. The log, however, was not complete. Keyser owned a house jointly with appellant and a woman named Shirley Bennett. When, on May 17, 1997, Cacioppo arrived at Keyser's residence at approximately 2:30 to 3:00 a.m., he drove into her driveway with all of his exterior and interior truck lights, including his headlights and utility work lights, on. After he verified the VIN number on Keyser's van, Cacioppo proceeded to hook the van up to his tow truck. Cacioppo testified that as he was pulling away with the van attached to his truck, he heard two shotgun blasts coming from the front right hand side and observed a man on the passenger side of the truck pointing a sawed-off shotgun at him. One of the shots hit the passenger fender and the other the windshield. Cacioppo testified that the man walked around Cacioppo's truck and, while pointing the gun at his head, told Cacioppo to "Drop the mother fucking van. I'm going to kill you." Transcript of Proceedings at 114. Cacioppo also testified that after Keyser appeared on the scene, she told the man to "Blow his fucking brains out. He's — He was trespassing." Transcript of Proceedings at 115. Thereafter, the man struck Cacioppo in the chest with the butt of the gun, causing a red mark. Transcript of Proceedings at 115. Cacioppo testified that he attempted to tell the two about the repossession so that he would not be killed. After he was able to unhook the van, Cacioppo got into his truck and drove to a nearby gas station where the attendant called 9-1-1. When the sheriff's department arrived, Cacioppo gave the deputy sheriff a description of his assailant and his assailant's name. Photographs were taken of both Cacioppo's truck and the injury to his chest. After taking a report from Cacioppo, two deputies went to Keyser's residence to talk to appellant. Although both Keyser and appellant stated that Keyser had fired the gun, Keyser was unable to locate the gun when asked to do so by the deputies. Keyser told the deputies that she had grabbed the gun and gone outside with it after observing a man standing outside her house looking into her windows at approximately 3:00 A.M. Keyser was doing dishes in the nude at such time. Once appellant told Keyser where the gun was located, the deputies retrieved the same. An area search conducted by the deputies using a K-9 dog yielded a spent cartridge from a 12 gauge shotgun in front of the garage that still smelled of gunpowder. Appellant was then arrested based on Cacioppo's description of him. Shortly thereafter, Cacioppo identified appellant as his assailant. Cacioppo was also able to identify appellant at trial as the man who had fired shots at him and had struck him in the chest with the gun. At the conclusion of the evidence, the jury on March 17, 1998, found appellant guilty of the offense of having weapons while under disability and guilty of the offense of felonious assault with a firearm specification. Thereafter, on April 14, 1998, Appellant was sentenced to an aggregate sentence of eight (8) years and eleven (11) months in prison. A Judgment Entry of Sentence was filed on April 14, 1998. It is from his conviction and sentence that Appellant prosecutes his appeal, raising the following assignments of error: FIRST ASSIGNMENT OF ERROR APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY THE INTRODUCTION, OVER OBJECTION, OF TWO PRIOR CONVICTIONS, AND THE TRIAL COURT'S FAILURE TO PROVIDE AN INSTRUCTION LIMITING THE JURY'S USE OF THE PRIOR CONVICTIONS, CONTRARY TO THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION, EVID. R. 403, 404, AND 609. SECOND ASSIGNMENT OF ERROR APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, WHEN TRIAL COUNSEL: 1) DID NOT REQUEST A JURY INSTRUCTION OUTLINING THE RIGHTS OF A PROPERTY OWNER TO REPEL TRESPASSERS; 2) DID NOT MOVE THAT THE TWO CHARGES BE SEVERED, OR IN THE ALTERNATIVE, WAIVE APPELLANT'S RIGHT TO A JURY TRIAL ON THE HAVING WEAPONS UNDER DISABILITY CHARGE; AND 3) DID NOT REQUEST A LIMITING INSTRUCTION AFTER APPELLANT'S PRIOR CONVICTIONS WERE ADMITTED INTO EVIDENCE OR OBJECT TO THE INCOMPLETE LIMITING INSTRUCTION REGARDING THE UNDERLYING FELONY SUPPORTING THE HAVING WEAPONS UNDER DISABILITY CHARGE. I In his first assignment of error, appellant challenges the trial court's admission, over objection, of appellant's two prior convictions, one a May 8, 1989, conviction for breaking and entering in violation of R.C. 2911.13, a felony of the fourth degree, and the other an October 24, 1988, conviction for having weapons under disability, in violation of R.C. 2923.12, also a felony of the fourth degree. Appellant specifically argues that the trial court erred by allowing appellant to be cross-examined with these two convictions and by failing to provide any "instruction properly limiting the jury's use of the evidence to impeach [appellant's] credibility, not his character." Appellee, appellant also contends, improperly attempted to use the prior convictions as evidence of appellant's character. Evid.R. 609 states, in relevant part, "(A) General rule. For the purpose of attacking the credibility of a witness: (2) Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the accused was convicted and if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice or confusion of the issues, or of misleading the jury. (B) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of probation, or shock probation, or parole, or shock parole imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence." Evid.R. 609 must be read in conjunction with Evid.R. 403(B), which states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence." Under Evid.R. 609, a trial court has broad discretion to determine the extent of the admissibility of prior convictions for impeachment purposes. State v. Wright (1990),48 Ohio St. 3d 5. In determining whether prior convictions should be admitted or whether the probative value of the evidence outweighs the danger of unfair prejudice, of confusion of the issues or of misleading the jury, the trial court should consider the following factors: "(1) the nature of the crime, (2) recency of the prior conviction, (3) similarity between the crime for which there was a prior conviction and the crime charged, (4) importance of the defendant's testimony, and (5) centrality of the credibility issue." State v. Goney (1993), 87 Ohio App. 3d 497, 501. The State bears the burden of demonstrating that the probative value of the evidence outweighs its prejudicial effect. Id. A trial court's decision whether to admit or exclude evidence of prior convictions is reviewable for abuse of discretion. State v. Lane (1997),118 Ohio App. 3d 230. In the case sub judice, on March 16, 1998, appellant's counsel filed a Motion in Limine to exclude evidence of the October 24, 1988, and May 8, 1989, prior convictions, both which were less than ten years old and both which were punishable by imprisonment in excess of one year under the law. Both the May 8, 1989, conviction for breaking and entering and the October 24, 1998, conviction for having weapons while under disability were punishable by up to 18 months in prison. The trial court, however, denied appellant's Motion in Limine, finding "the probative value of the evidence of these convictions outweigh the danger of unfair prejudice and confusion of the issues, or misleading the jury, . . ." Transcript of Proceedings at 205 — 206. We agree. One of appellant's prior convictions was for breaking and entering in violation of R.C. 2911.13. R.C. 2913.01(K) defines a "theft offense" as including a violation of R.C. 2911.13. Theft offenses such as breaking and entering involve dishonesty within the meaning of Evid.R. 609(A)(2), and therefore, may be used to impeach a witness. State v. Tolliver (1986), 33 Ohio App. 3d 110. The trial court, therefore, did not abuse its discretion in allowing the prosecution to impeach appellant with his prior conviction for breaking and entering since the probative value of such evidence outweighed any danger of unfair prejudice or confusion or of misleading the jury. At trial, appellant also was cross-examined regarding his prior conviction for having weapons under disability in violation of R.C. 2923.13. As a general rule, those prior convictions which are for the same crime as the accused is on trial should be admitted sparingly. Goney, supra. However, based on Keyser's portrayal of appellant as an outstanding citizen and appellant's testimony on direct exam that he had never possessed any shotgun, we find that the trial court did not abuse its discretion in allowing the State to cross-exam appellant on his prior conviction for having a weapon while under disability. Appellee clearly used such conviction to impeach appellant's credibility and veracity rather than as evidence of his character or his propensity to commit the crime of weapons under disability. Appellant further asserts that the trial court erred in failing to give the jury a limiting instruction regarding the proper use of appellant's prior convictions for breaking and entering and having weapons under disability. Appellant argues that the jury should have been instructed to consider these prior convictions only in regard to assessing his credibility and not for evidence of his character since Rule 404 of the Ohio Rules of Evidence, prohibits, with a limited exception, the use of evidence of an accused's character to show that he acted in conformity with his character. However, no such instruction was requested by appellant at trial nor did defense counsel object to the instructions given. "Where no objection was made at trial to failure to give special limiting instructions concerning the proper use of prior conviction in evidence, the omission was not reviewable on appeal from conviction." State v. Gordon (1971),28 Ohio St. 2d 45. This court, therefore, cannot review the trial court's failure to give a limiting instruction. Appellant's first assignment of error is overruled. II Appellant, in his second assignment of error, asserts that he was denied his constitutional right to the effective assistance of counsel by his trial counsel's (1) failure to request a jury instruction regarding the rights of property owners to repel trespassers, (2) failure to move that the two charges be severed or, in the alternative, to waive appellant's right to a jury trial on the weapons under disability charge, and (3) failure to request a limiting instruction after appellant's prior convictions were admitted into evidence or to object to the incomplete limiting instruction regarding the underlying felony supporting the having weapons under disability charge. A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell (1993) 113 S. Ct. 838,122 L. Ed. 2d 180; Strickland v. Washington (1984), 466 U.S. 668,104 S. Ct. 2052, 80 L.ED.2d 674; State v. Bradley (1989), 42 Ohio St. 3d 136. In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Bradley,42 Ohio St. 3d at 142. Because of the difficulties inherent in determining whether effective assistance of counsel was rendered in any given case, a strong presumption exists that counsel's conduct fell within the wide range of reasonable, professional assistance. Id. In order to warrant a reversal, the appellant must additionally show he was prejudiced by counsel's ineffectiveness. This requires a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Bradley, supra at syllabus paragraph three. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. It is with this framework in mind that we address the instances of alleged ineffectiveness of counsel raised by appellant in the instant case. The first instance of alleged ineffectiveness raised by appellant is his trial counsel's failure to request an instruction on appellant's privilege to defend his property against trespassers. Appellant specifically asserts that, based on the notice that Keyser received granting her until May 24, 1998, to cure her default, Cacioppo had no right to repossess Keyser's vehicle and, therefore, to be on the property owned by Keyser and appellant. As his defense at trial, appellant argued that Keyser had fired shotgun. Keyser herself testified for the defense that she grabbed her gun, ran outside, and fired after observing a man looking into her windows. In other words, appellant's defense was that he did not fire the gun. Since appellant raised no claim of defense of property against trespassers, an instruction on the same would have been inconsistent with the defense. While appellant argues that his trial counsel should have argued that even if the State's case was believed, appellant still had a right to defend his property, trial counsel's failure to request such an instruction constituted trial strategy and, as such, cannot be regarded as ineffective assistance of counsel. See State v. Coleman (1989),45 Ohio St. 3d 298, 308. Appellant further questions defense counsel's failure to move the trial court for separate trials on the two counts contained in the indictment pursuant to Crim.R. 14 or to waive appellant's right to a jury on the weapons under disability charge. According to appellant, the failure to request a severance of the two charges was prejudicial since the elements of the weapons under disability charge included a prior aggravated assault conviction that improperly influenced the jury in its decision on the felonious assault charge in this case. Crim R. 8(A) provides: "(A) Joinder of Offenses. Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged * * * are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of conduct." In this case, the felonious assault and having weapons under disability charges were joined in a single indictment and tried together and were based on the same act. In order to have obtained a severance, the appellant would have had to demonstrate that joinder was prejudicial under Crim.R. 14. That Rules provides: "If it appears that a defendant * * * is prejudiced by a joinder of offenses * * * in an indictment, information or complaint, * * * that court shall order an election or separate trial of counts, * * * or provide such other relief as justice requires. In State v. Dunkins (1983), 10 Ohio App. 3d 72, the court found the joinder of multiple charges in a single indictment not to be prejudicial. In that case, the defendant argued that the trial court erred in failing to sever his having a weapon with disability charge from his burglary and carrying a concealed weapon charges. The defendant maintained that joinder of the three charges in a single indictment was prejudicial because it permitted the State to bring in evidence of the defendant's prior conviction for armed robbery in the trial as to the disability charge. If, however, the charge of having a weapon while under disability was severed from the other charges, the State could not introduce the defendant's prior conviction in a trial on the remaining charges because it would be considered prejudicial. The court found the joinder of offenses to be valid because (1) the evidence of the defendant's prior conviction was simple and distinct, (2) the three counts arose out of the same transaction and (3) the jury was given an appropriate limiting instruction. Under these circumstances, the trial court found the defendant had not been prejudiced and affirmed the trial court's refusal to sever the charges. Similarly, we find, in the instant case, the joinder of the felonious assault and having weapons while under disability offenses was valid and non-prejudicial because (1) the evidence of appellant's prior aggravated assault convictions was simple and distinct, i.e. there was no elaboration as to the details of the prior convictions, (2) the felonious assault and having weapons while under disability charges arose out of the same transaction or set of facts and (3) the jury was given an appropriate limiting instruction. See State v. Harris (1995), Knox App. No. 95-8, unreported. Consequently, in light of the fact that the joinder of the two charges was appropriate under Dunkins, supra, we find appellant's trial counsel did not fall below an objective standard of reasonable representation in failing to request a severance of the charges under the first prong of Strickland and Bradley, supra. Moreover, whether or not to waive a jury trial is a tactical consideration and a decision not to waive a jury trial does not constitute ineffective assistance of counsel. As his final example of the alleged ineffective assistance of trial counsel, appellant points to trial counsel's failure to request a limiting instruction after appellant's prior convictions were admitted into evidence or to object to the incomplete limiting instruction regarding the underlying aggravated assault felony supporting the having weapons under disability charge. In the case sub judice, appellant has failed to rebut the presumption that trial counsel's actions were anything but sound trial strategy. See State v. Smith (1991), 75 Ohio App. 3d 73. Defense counsel may have declined to request a limiting instruction regarding appellant's prior convictions for breaking and entering and having a weapon under disability out of fear that, if such an instruction was given, the prior convictions would be once again called to the jury's attention. The same holds true with trial counsel's failure to object to the alleged incomplete limiting instruction regarding the underlying felony supporting the having weapons under disability charge. In addition to finding that the performance of appellant's counsel did not fall below an objective standard of reasonable representation, we also find that, even if it had, appellant was not prejudiced by his counsel's actions. The eyewitness testimony of the victim, coupled with the testimony regarding Keyser's physical limitations and regarding appellant's knowledge of the whereabouts of the weapon was sufficiently strong that the appellant did not establish that, but for counsel's errors, there was a reasonable probability that the result of the proceeding would have been different. Therefore, we conclude that neither prong of the test for ineffective assistance of counsel has been met. Since there is no evidence that trial counsel's performance fell below an objective standard of reasonable representation and since, with respect to appellant's three examples of ineffective assistance of counsel, appellant has not shown that but for such errors the results of his trial would have been different, appellant's second assignment of error is overruled. The judgment of the Perry County Court of Common Pleas is affirmed. By Edwards, J. Gwin, P.J. concurs Hoffman, J. concurs separately

2016-07-06 06:36:52.831951+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, Craig D. Bevan, appeals from the judgment of the Lorain County Court of Common Pleas, Domestic Relations Division, which denied appellant's motion for relief from judgment, pursuant to Civ.R. 60(B). This Court affirms. I. {¶ 2} Appellant and appellee, Karen A. Bevan, were divorced on February 27, 1995. The judgment entry for divorce awarded appellee an interest in appellant's Ohio Police and Fireman's Pension Fund ("OPFPF") as and for alimony. The OPFPF was to begin paying appellee at the time when appellant "actually receives the monthly retirement payment[.]" On June 27, 2001, the trial court issued a supplemental judgment entry of divorce regarding the Police and Fireman's Pension Plan. The supplemental judgment entry reiterated that appellee was to receive a portion of appellant's monthly benefit under the plan as soon as appellant entered pay status. {¶ 3} On or about October 31, 2001, appellant became disabled and opted for disability benefits from the OPFPF in lieu of age and service retirement benefits. To facilitate the distribution of spousal support to appellee under the plan, on April 8, 2002, the trial court issued a Division of Property Order ("DPO") regarding the OPFPF. The April 8, 2002 DPO indicated that the only applicable benefits were those from age and service monthly retirement benefits. On April 15, 2002, the OPFPF received the DPO and its Executive Director William J. Estabrook signed it on May 31, 2002. On June 12, 2002, the OPFPF filed its notice of acceptance of the DPO. {¶ 4} On February 24, 2003, appellee filed a motion to show cause, alleging that appellant was refusing to cooperate in the enforcement of appellee's interest in appellant's OPFPF. Although the matter was scheduled for contested hearing, the magistrate issued an order on July 18, 2003, indicating that the matter was settled and ordering the parties to submit a journal entry to the magistrate by August 5, 2003. On September 11, 2003, the magistrate issued an order noting that the parties had failed to submit the agreed journal entry to court, but that appellee tendered a DPO, which her counsel represented was the basis for the parties' agreement. The magistrate granted appellant 10 days to file objections to the proposed DPO. {¶ 5} On September 22, 2003, appellant filed a motion to set aside the magistrate's order, asserting that the proposed DPO was not consistent with the terms of the judgment entry for divorce or any other agreement reached by the parties. In support, appellant attached letters from the OPFPF to appellant and appellee, informing them that the fund had been improperly paying appellee under the terms of the DPO, because the DPO permits payments from appellant's age and service monthly retirement benefit only, and not from his disability retirement benefit. {¶ 6} On February 17, 2004, appellee filed her brief in support of a motion to approve the proposed DPO. The trial court noted that the parties stipulated to the facts as contained in all exhibits attached to both appellant's and appellee's briefs. Attached to appellee's motion was a letter from OPFPF asserting that appellant's effective date of retirement was July 15, 2001; that appellant was eligible to receive normal age and service retirement at the start of his disability benefit; that appellant in his personal discretion opted for disability retirement benefits in lieu of age and service retirement benefits; and that appellant's gross monthly disability benefit was $3,171.48, while his gross monthly normal age and service retirement benefit would have been only $2,810.72. {¶ 7} On September 15, 2004, the trial court granted, in part, appellee's motion to approve the proposed DPO, effectively overruling appellant's motion to set aside the magistrate's order. The trial court reasoned that, given appellant's election for disability retirement benefits when he previously qualified for normal age and service retirement benefits, appellee maintained an interest in receiving spousal support from appellant's OPFPF monies. The trial court ordered appellee to prepare and submit a new DPO by October 12, 2004, which provides her with an interest in appellant's OPFPF disability benefit in proportion to what she would have received, if appellant were receiving the lesser amount of his normal age and service retirement benefits. The trial court further stated that appellee's failure to timely submit the proposed DPO "may result in imposition of sanctions." {¶ 8} Appellant filed a notice of appeal on October 13, 2004. This Court ordered appellant to file a memorandum by November 15, 2004, explaining why that appeal should not be dismissed for lack of a final, appealable order. Appellant did not respond to this Court's show cause order, and appellant's appeal was dismissed on December 7, 2004. Bevan v. Bevan, 9th Dist. No. 04CA008582. {¶ 9} Appellee failed to present her proposed DPO to the trial court for signature until on or about December 22, 2004. The DPO was filed that day. There was no endorsement thereon directing the clerk to serve the DPO on the parties. See Civ.R. 58(B). In addition, there is no notice of service by the clerk entered in the appearance docket. See id. On February 28, 2005, the OPFPF filed its notice of acceptance of the December 22, 2004 DPO, certifying service of its notice on the parties. {¶ 10} On March 14, 2005, appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B)(1) and (5). For grounds, appellant alleged that appellee's submission of the proposed DPO was untimely, that appellee failed to serve or cause appellant to be served with the DPO, and that such improper notice deprived appellant of his opportunity to timely appeal the trial court's September 15, 2004 journal entry. Appellee opposed appellant's motion. The magistrate noted in an order that the parties had briefed the matter and that the trial court would rule on the motion without further hearing. Appellant did not move to set aside the magistrate's order. {¶ 11} On May 3, 2005, the trial court denied appellant's motion for relief from judgment, finding that appellant failed to demonstrate any meritorious claim or defense. In addition, the trial court found that appellant improperly attempted to use a Civ.R. 60(B) motion as a substitute for a timely filed appeal. Appellant timely appeals the trial court's denial of his motion for relief from judgment, setting forth two assignments of error for review. This Court consolidates the assignments of error for ease of review. II. ASSIGNMENT OF ERROR I "THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION TO VACATE JUDGMENT PURSUANT TO [CIV.R. 60(B)(1) AND (5)] AS APPELLANT WAS ENTITLED TO RELIEF FROM JUDGMENT." ASSIGNMENT OF ERROR II "THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT APPELLANT HAD NOTICE OF ISSUANCE OF THE [DPO] WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING." {¶ 12} Appellant argues that he presented a meritorious procedural defense, because he was never served with the DPO. He further argues that appellee's failure to timely submit the DPO to the trial court constitutes a meritorious procedural defense. In addition, appellant argues that the trial court abused its discretion by failing to conduct an evidentiary hearing, relying instead upon facts contained in exhibits attached to appellee's brief in opposition to appellant's Civ.R. 60(B) motion. This Court disagrees. {¶ 13} The decision to grant or deny a motion for relief from judgment pursuant to Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed absent an abuse of the discretion. Strack v. Pelton (1994), 70 Ohio St. 3d 172, 174. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983),5 Ohio St. 3d 217, 219. An abuse of discretion demonstrates "perversity of will, passion, prejudice, partiality, or moral delinquency." Pons v. Ohio State Med. Bd. (1993),66 Ohio St. 3d 619, 621. When applying the abuse of discretion standard, this Court may not substitute its judgment for that of the trial court. Id. {¶ 14} Civ.R. 60(B) states, in relevant part, "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, 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. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment order or proceeding was entered or taken." {¶ 15} To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving party 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."GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976),47 Ohio St. 2d 146, paragraph two of the syllabus. The moving party's failure to satisfy any of the three requirements will result in the motion being overruled. RoseChevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 17, 20. {¶ 16} The Ohio Supreme Court has held that a trial court should hold a hearing on a movant's motion for relief from judgment where the movant has alleged operative facts warranting relief under Civ.R. 60(B). Kay v. Marc Glassman, Inc. (1996),76 Ohio St. 3d 18, 19. The motion and supporting documents, if any, must contain operative facts which demonstrate the timeliness of the motion, the reasons for seeking relief, and the movant's defense. Adomeit v. Baltimore (1974),39 Ohio App. 2d 97, paragraph two of the syllabus. "If the material submitted by the movant in support of a motion for relief from judgment under Civil Rule 60(B) contains no operative facts or meager and limited facts and conclusions of law, it will not be an abuse of discretion for the trial court to overrule the motion and refuse to grant a hearing." Id. at paragraph four of the syllabus. Before the trial court must schedule a hearing on a motion for relief from judgment, "the movant must do more than make bare allegations that he or she is entitled to relief." Kay,76 Ohio St.3d at 20, citing Rose Chevrolet, 36 Ohio St.3d at 20. {¶ 17} Appellant argues that the trial court erred by denying his motion for relief from judgment, or for not having a hearing prior to ruling. This Court finds that appellant's argument lacks merit because appellant failed to allege any operative facts regarding any meritorious defense. {¶ 18} Appellant alleges that he has a meritorious procedural defense to the DPO, because appellee failed to file the DPO in a timely manner. Appellant's argument lacks merit. Although the trial court stated that appellee's failure to timely submit the DPO for approval "may" result in sanctions, and appellant speculated that such sanctions might have included the court's refusal to accept the DPO, the trial court in fact did not refuse to accept the DPO. That the trial court might have imposed, in its discretion, some speculative sanction upon appellee for her untimely submission of the DPO does not constitute a defense to the substance of the DPO, should the trial court vacate that order. Accordingly, the trial court did not abuse its discretion when it found that appellant had not presented a meritorious defense to the DPO on the basis of appellee's untimely submission. {¶ 19} Appellant further alleges that he has a meritorious procedural defense, because he was never served with the DPO. This Court disagrees. {¶ 20} Civ.R. 58(B) provides: "When the court signs a judgment, the court shall endorse thereon a direction to the clerk to serve upon all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed by Civ.R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete. The failure of the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided in App.R. 4(A)." {¶ 21} App.R. 4(A) provides: "A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure." {¶ 22} Accordingly, App.R. 4(A) stays appellant's right to appeal until such time as the clerk has finally served notice of the judgment and its entry upon the docket. Moreover, there exists a mechanism to compel the clerk to perform its mandatory duty of service pursuant to Civ.R. 58(B). The failure of service, however, does not operate as a defense to the underlying DPO. Further, appellant has not alleged any defense he might have to present, if the trial court were to vacate the DPO. {¶ 23} In this case, it is clear that appellant has attempted to use a motion for relief from judgment pursuant to Civ.R. 60(B) as a substitute for the appeal which he may yet bring within thirty days of the clerk's service of notice of the judgment and its entry upon the docket. It is well settled that a Civ.R. 60(B) motion for relief from judgment is not a substitute for a timely perfected appeal. Morgan Auto Paint Co. v. Glassner (Apr. 17, 2002), 9th Dist. No. 20811, citing Doe v. Trumball Cty. ChildrenServs. Bd. (1986), 28 Ohio St. 3d 128, paragraph two of the syllabus. In this case, appellant may perfect his appeal within thirty days of the date on which the clerk finally serves notice of the judgment and its entry. That his time for appeal has not yet begun to run does not constitute a meritorious defense in support of his motion for relief from judgment.1 Accordingly, the trial court did not abuse its discretion by denying appellant's motion for the reason that he failed to demonstrate that he has a meritorious defense to the DPO. Appellant's assignments of error are overruled. III. {¶ 24} Appellant's assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas, Domestic Relations Division, is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to appellant. Moore, J., Boyle, J., Concur. 1 This is assuming that the clerk has not since served notice of the judgment and its entry upon the docket on appellant. At the time of the filing of this appeal, the clerk had not yet served such notice.

2016-07-06 06:36:51.802626+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an appeal from a judgment of the Sandusky County Court of Common Pleas. The material facts in this cause are as follows. {¶ 2} On December 6, 1998, Kathy Armbruster was killed in a motor vehicle collision caused by Eugene Heinemann. Anna Armbruster, Kathy's daughter, was also injured in the collision. Appellant is Charles Armbruster, the surviving spouse of Kathy Armbruster and the father of Anna Armbruster. In his capacity as the executor of Kathy's estate, appellant filed a wrongful death suit in the Sandusky Court of Common Pleas, Probate Division. {¶ 3} On October 14, 1999, appellant settled Anna's personal injury claim and his wrongful death claim with the tortfeasor's insurer for a total of $100,000. Appellant also filed an uninsured/underinsured (UM/UIM) claim against his own motor vehicle insurer. On December 8, 1999, the probate court approved the settlement of this claim and ordered the distribution of the $400,000 received by appellant from his insurer. {¶ 4} At the time of the fatal accident, appellant was employed by Libbey-Owens-Ford Co., a division of Pilkington Holdings, Inc. ("Pilkington"). Pilkington had a commercial motor vehicle liability policy with appellee, Hartford Fire Insurance Company ("Hartford"), which, as a renewal policy, was effective from April 1, 1998 to April 1, 1999. The limit of liability for each "accident" under this policy was $2 million. {¶ 5} For previous policy periods commencing on April 1, 1995 and April 1, 1996, Pilkington rejected, in writing, Hartford's offer of UM/UIM coverage. The offer/rejection forms are identical for both periods. They each state that UM/UIM coverage applies to all vehicles covered in the Hartford policy. The forms also provide: {¶ 6} "Uninsured Motorists Coverage pays benefits for bodily injury, sickness or disease, including death, caused by an uninsured driver, or an insured driver whose bodily injury insurance limit is inadequate to cover bodily injury losses you are entitled to recover as damages." {¶ 7} The forms recommend a UM/UIM coverage limit equal to Hartford's motor vehicle liability insurance limit, but no lower than "the Financial Responsibility Limit of Ohio." The offers also state that Pilkington could reject UM/UIM coverage in its entirety. The forms also apprise the insured of the following: {¶ 8} "Please be sure to read, fill out, sign and return this Supplemental Application to your Hartford agent or broker if you wish to elect an optional Uninsured Motorist Coverage limit, or to reject coverage entirely. The choice you make will apply to any policy which renews, changes, supersedes or replaces your existing policy or any policy for which you may be applying, unless you request a change to your coverage in writing." {¶ 9} Both forms indicate that Pilkington rejected UM/UIM coverage "entirely." {¶ 10} Pilkington also held an umbrella liability insurance policy issued by CGU International Insurance, PLC ("CGU"). It is undisputed that Pilkington was not offered UM/UIM coverage under the CGU policy. {¶ 11} In October 1999, appellant submitted underinsured motorist claims to CGU and Hartford. Both claims were rejected. Therefore, appellant instituted the present action, asking the trial court to determine his rights under the CGU and Hartford insurance policies. Appellant urged that under the Ohio Supreme Court's decision inScott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660, he was entitled to UM/UIM coverage under his employer's commercial motor vehicle liability policy and umbrella policy. {¶ 12} The case sub judice was, for a period, removed to the United States District Court for Northern Ohio, Western Division. During that time, appellant, CGU, and Pilkington filed motions for summary judgment. The federal court then remanded the case to the Sandusky County Court of Common Pleas based upon a lack of jurisdiction. {¶ 13} CGU's motion for summary judgment was predicated on the fact that its umbrella policy was negotiated, issued, delivered, and paid for in the United Kingdom. Further, CGU asserted that the place of performance and subject matter of the policy were in the United Kingdom. Finally, CGU maintained that any benefits paid under the policy would be paid to Pilkington in the United Kingdom. CGU therefore claimed that, in applying Ohio's choice of law rules for contract actions, the law of the United Kingdom, not Ohio, must be utilized in this cause. Because the United Kingdom has no law comparable to Scott-Pontzer, CGU contended that a corporation's UM/UIM coverage is not extended to the corporation's employees. {¶ 14} The trial court agreed with CGU and granted its motion for summary judgment. On appeal, and despite the fact that CGU filed an appellee's brief, appellant fails to raise any error with regard to the basis of that decision. In fact, in his reply brief, appellant concedes that he assigns no error in regard to the trial court's grant of summary judgment to CGU "on the basis of choice of law." Therefore, the lower court's grant of summary judgment to CGU must be affirmed. {¶ 15} In its motion for summary judgment, Hartford asserted that Pilkington's written rejection of UM/UIM coverage was valid under R.C.3937.18, as effective on September 3, 1997. Thus, UM/UIM coverage was not available to appellant under Pilkington's commercial motor vehicle liability policy. In the alternative, Hartford argued that appellant destroyed its subrogation rights and/or that appellant's claim was barred by a lack of prompt notice. {¶ 16} On the other hand, appellant contended, inter alia, that the Ohio Supreme Court's decision in Linko v. Indem. Ins. Co. of N. Am. (2000), 90 Ohio St.3d 445 was applicable to the case under consideration. Appellant claimed that, under the standard set forth inLinko, Pilkington's rejection of UM/UIM coverage was invalid. {¶ 17} In granting Hartford's summary judgment and denying appellant's motion for summary judgment, the trial judge found that applying Linko retrospectively would impair Hartford's "vested contractual rights without due process of law." She then determined that this ruling rendered Hartford's "impairment of subrogation rights" and "prompt notice" arguments moot. {¶ 18} Appellant appeals this judgment and asserts that the following errors occurred in the proceedings below: {¶ 19} "1. The trial court erred by failing to apply the standards set forth in Linko v. Indemnity Ins. Co. of North America (2000),90 Ohio St.3d 445 for an effective rejection of Uninsured/Underinsured motorists coverage." {¶ 20} "2. The trial court erred in deny [sic] plaintiff/appellant's motion for summary judgment." {¶ 21} In reviewing a trial court's grant or denial of a motion for summary judgment, an appellate court applies the same standard used by the trial court. McConville v. Jackson Comfort Sys., Inc. (1994),95 Ohio App.3d 297, 301. To prevail on a motion for summary judgment, the movant must demonstrate that there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). {¶ 22} The gist of appellant's first and second assignments of error is that, pursuant to Linko, Pilkington's rejection of UM/UIM coverage is invalid; therefore, appellant, as an insured under the Hartford policy pursuant to Scott-Pontzer, acquires UM/UIM coverage by operation of law. {¶ 23} Initially, we find that the trial court erred in finding that Linko should not be applied retrospectively to this cause because it would impair Hartford's vested contractual right. The Ohio Supreme Court's interpretation of UM/UIM legislation does not establish any substantive rights to which an insurer can claim a vested right. SeeCartwright v. The Maryland Ins. Group (1995), 101 Ohio App.3d 439, 443. Of greater importance is the fact that there is no retroactive application at issue here. In Linko, the Ohio Supreme Court did not announce a new rule of law. Instead, it simply determined what R.C. 3937.18 "has meant since its enactment." See Agee v. Russell (2001),92 Ohio St.3d 540, 543 (applying this principle to the Ohio Supreme Court's interpretation of R.C. 2151.26). {¶ 24} Furthermore, a recent Ohio Supreme Court case, Kemper v.Michigan Millers, Inc. (2002), 98 Ohio St.3d 162, 2002-Ohio-7101, holds that the requirements for a meaningful offer of UM/UIM coverage are "applicable to a policy of insurance written after enactment of [1997] HB 261 and before [2001] SB 97." Id. at ¶ 2 and ¶ 4. See, also,Hartfield v. Toys "R" Us, 6th Dist. Nos. L-02-1218 and L-02-1228,2003-Ohio-2905. Accordingly, the trial court did err in granting summary judgment to Hartford on the basis that Linko was inapplicable to the case before us. Thus, appellant's first assignment of error is found well-taken. {¶ 25} In his second assignment of error, appellant urges that the trial court should have granted his motion for summary judgment because Hartford's offer/rejection forms do not comply with the requisites ofLinko. We agree, but only to the extent that Pilkington's rejection of UM/UIM coverage was invalid. {¶ 26} Finding that a meaningful rejection requires a meaningful offer, the Linko court set forth specific required elements for written offers. Id. at 449. The offer must contain (1) a brief description of the coverage; (2) the premium for that coverage; and (3) an express statement of the UM/UIM coverage limits. Id. at 447-448. In the instant case, the offer/rejection forms describe the UM/UIM coverage. Nonetheless, neither form provides the premium for that coverage. Additionally, the statements delineating coverage limits are too overbroad to be of any assistance to the insured in making a meaningful rejection of UM/UIM coverage. Specifically, the limits range from a high of $2 million to no less than the amount currently set forth in R.C. 4905.01(K). We therefore conclude that the offers of UM/UIM coverage by Hartford do not satisfy the Linko requirements. {¶ 27} Based on the foregoing, the trial court should have granted partial summary judgment to appellant on the Linko question only, and appellant's second assignment of error is found well-taken. {¶ 28} Notwithstanding this finding, Hartford raises, pursuant to R.C. 2502.02, a cross-appeal to prevent reversal of the final judgment in its favor. Hartford argues that it was entitled to summary judgment on either or both of the other two issues, impairment of Hartford's subrogation rights and lack of prompt notice, raised in its motion for summary judgment. These questions were deemed moot and not considered by the trial court. We therefore decline to consider them for the first time on appeal. See Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 360. Rather, we leave the resolution of these issues to the lower court on remand. {¶ 29} On consideration whereof, the judgment of the Sandusky County Court of Common Pleas is affirmed as to the grant of summary judgment to CGU International Insurance, PLC, and is reversed as to the grant of summary judgment to Hartford Fire Insurance Company. This cause is remanded to that court for further proceedings consistent with this judgment. Hartford Fire Insurance Company is ordered to pay the costs of this appeal. JUDGMENT AFFIRMED IN PART AND REVERSED IN PART. Arlene Singer, J., concurs.

2016-07-06 06:36:52.556364+00

DECISION {¶ 1} Plaintiff-appellant, Constance Swackhammer, appeals a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Kroger Company, and its janitorial service, Metropolitan Building Services, Inc. ("Metropolitan"), in this slip-and-fall negligence action. {¶ 2} In February 1999, appellant was shopping at a Kroger grocery store on Sunbury Road in Columbus when she slipped on spilled cooking oil and injured her knee. She obtained assistance from a Kroger employee to whom she showed the spill. As they were discussing the accident, another Kroger employee arrived on the scene and spread cat litter on the spill. A Metropolitan employee, who was cleaning in another part of the store, learned of the spill over the intercom and proceeded to the area to clean up the spill. Depositions by appellant and several others indicated some discrepancy as to whether the cooking oil bottle was present at the location of the spill, either prior to the accident or at the time Kroger employees arrived at the scene. {¶ 3} In January 2001, appellant and plaintiff-appellee, Larry Swackhammer, filed a cause of action alleging that Kroger negligently failed to clean and/or secure the spill, and that this failure proximately caused appellant's injury. In April 2003, the trial court granted motions for summary judgment by Kroger and Metropolitan based upon its conclusion that: * * * [E]ven assuming that a Kroger employee did in fact pick up the cooking oil bottle, there is no evidence that the oil was on the ground for an excessive amount of time. In fact, the evidence seems to suggest that it was not there for long. Plaintiff herself gave deposition testimony to the effect that there were no footprints or cart tracks through the oil and none of the deposition testimony of the Kroger employees reveals that they knew of the spill, until Plaintiff's slip. {¶ 4} Appellant now assigns the following as error: In this slip and fall negligence action, the trial court erred in granting the Defendant-Appellees' motions for summary judgment where one of the Defendant-Appellees admitted that the cooking oil container had been removed from the spill site, that the spill site was proximally located near the cash registers where Plaintiff-Appellant offered evidence that there were no warning signs in place and the cooking oil container had been removed from the spill site. {¶ 5} Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio App.3d 158, 162. "When reviewing a trial court's ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court." Mergenthal v. Star Banc Corp. (1997),122 Ohio App.3d 100, 103. Civ.R. 56(C) provides that summary judgment may be granted when the moving party demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183. {¶ 6} When a motion for summary judgment has been supported by proper evidence, a non-moving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52. To establish the existence of a genuine issue of material fact, the non-moving party must do more than simply resist the allegations in the motion. Rather, that party must affirmatively set forth facts which entitle him to relief. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111. If the non-moving party "does not so respond, summary judgment, if appropriate, shall be entered against the party." Civ.R. 56(E). {¶ 7} This case is factually similar to those set forth in Barker v. Wal-Mart Stores, Inc., Franklin App. No. 01AP-658, 2001-Ohio-8854, in which a store patron was injured when he slipped and fell on some clear liquid which was later identified as coming from a cracked bottle of recreational vehicle wash. At issue in that case was whether the plaintiff sufficiently demonstrated an issue of fact as to whether the store had either actual or constructive knowledge of the spill and, thus, breached a duty to promptly remove it or to warn the plaintiff of its existence. In upholding the trial court's granting of summary judgment for defendant, this court stated: In the final analysis, plaintiff has not presented evidence that a genuine issue of material fact exists about whether defendant had actual knowledge of the RV wash fluid on the floor before plaintiff fell. Plaintiff presented no evidence that anyone knew the fluid was on the floor before plaintiff fell, nor did he present any evidence, other than conjecture, of how the RV wash bottle got on the floor and cracked open, resulting in leakage of the slippery fluid onto the floor. * * * {¶ 8} Given the lack of evidence that Wal-Mart had actual knowledge of the spill, we found that Barker would have had to present evidence as to the length of time the hazard existed. There again, Barker failed to meet his burden of production, since he presented no evidence of how long the substance was on the floor prior to his fall. Following Sweet v. Big Bear Stores Co. (1952), 158 Ohio St. 256, which held that where no evidence shows how a slippery substance came to be on the floor or how long it had been there, a plaintiff cannot show that the store breached a duty of ordinary care, we upheld the trial court's determination that Barker had not presented sufficient evidence to demonstrate a genuine issue of material fact. {¶ 9} In the case at bar, appellant's evidence did not support either a finding that appellees knew of the spill prior to her fall or that the oil had been on the floor long enough that appellees could be deemed to have constructive knowledge of the spill. Appellant attempts to show that the absence of the leaking bottle demonstrates that someone had removed the bottle from the scene, and assert that a Kroger employee must have learned of the spill, removed the bottle, but did nothing further to address the problem. However, this is mere conjecture, and the trial court properly concluded that the presence or absence of the bottle was not pertinent to the question of how long the spill was there and whether the store knew or should have known of the spill. {¶ 10} It is unfortunate that appellant was injured; however, "a business owner is not an insurer of a customer's safety or against all types of accidents that may occur on its premises." Barker, citing Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. Because appellant was unable to present sufficient evidence to create a genuine issue of material fact as to appellees' liability, the trial court properly granted summary judgment in appellees' favor. {¶ 11} Based upon these considerations, we overrule appellant's sole assignment of error and affirm the summary judgment of the Franklin County Court of Common Pleas. Judgment affirmed.

2016-07-06 06:36:51.913282+00

JOURNAL ENTRY AND OPINION *Page 2 {¶ 1} Defendant-appellant, Masood Moinuddin ("Masood") appeals the trial court's judgment affirming the magistrate's decision regarding his divorce and his contempt finding. Finding no merit to the appeal, we affirm. {¶ 2} In November 2002, plaintiff-appellee, Barbara Moinuddin ("Barbara") filed for divorce.1 Masood counterclaimed, and orders for temporary support were granted in December 2002.2 The matter was heard before a magistrate on June 23, 2005, August 2, 2005, January 11, 2006, and January 17, 2006. Following the hearings, the magistrate issued a decision in April 2006 regarding the division of marital assets, spousal support, child support, and a contempt finding against Masood. Marital Assets {¶ 3} The magistrate found that Masood is self-employed, as the sole shareholder of ABC Auto Insurance Agency, Inc. The magistrate determined that this business is a marital asset.3 The magistrate also found that Masood had an interest in Consolidated Estates LLC ("Consolidated Estates"). This finding was based on Masood's tax returns for the year 2000, which indicated that he was the *Page 3 proprietor of the business and listed the marital home address and Consolidated Estates' address. The magistrate also found that Masood had an interest in a business called Silver City Properties LLC ("Silver City"). The magistrate based her decision on evidence that: Masood was sued along with Consolidated Estates and Silver City in a civil matter, Consolidated Estates was listed as statutory agent for Silver City, and Masood's fiance_ is an authorized representative for Silver City. {¶ 4} The magistrate also found that the fair market value of property owned by Silver City and located at 5407 Euclid Avenue is $647,500. The magistrate gave Masood the opportunity to provide documents showing any mortgage balance or liens on the property which would change the value of the property. However, Masood failed to provide any documents, so the court relied on the $647,500 value. Spousal Support {¶ 5} The magistrate concluded that Masood continued to actively engage in the insurance business during the pendency of the case and through the date of the final hearing. Therefore, the magistrate found that Masood is not unemployed and his income is at least $60,000. The magistrate found that Barbara was voluntarily unemployed and that her earning capability is $14,500. Barbara was awarded half of the value of the retirement accounts (approximately $9,500) as spousal support. The magistrate found that this amount would meet Barbara's immediate needs rather than allowing a monthly award in light of Masood's history of non-payment. Child Support *Page 4 {¶ 6} The magistrate determined Masood's monthly child support obligation to be $520.03. The magistrate found that Masood was not entitled to a deviation from the guidelines because both parties agreed that the minor child would remain in parochial school. Contempt Findings {¶ 7} The magistrate found Masood in contempt of the temporary support orders for failing to pay the support and found him $24,086.22 in arrears. Masood was sentenced to thirty days in jail. However, the sentence would be purged if he paid $2,400 within thirty days of the journalization of the final decree. In addition to the current support, Masood was ordered to pay $200 per month until the arrearage was paid in full or until further order of the court. {¶ 8} Both parties filed objections to the magistrate's decision, which the trial court denied.4 In August 2006, the trial court affirmed and adopted the magistrate's decision, modifying the contempt order to give Masood sixty days to purge his contempt. The divorce decree was finalized on August 16, 2006. {¶ 9} Masood appeals, raising six assignments of error. Masood argues that the magistrate abused her discretion and committed prejudicial error in: determining the marital assets, allocating the marital debt, imputing income to Masood, failing to deviate from the child support guidelines, finding Masood in contempt of the *Page 5 temporary support orders, and failing to provide reasonable conditions for purging the contempt order. {¶ 10} However, we note that the record contains no transcript of the proceedings conducted on January 17, 2006, the final hearing. It is the duty of the appellant to provide this court with an adequate record from which to review the assignments of error on appeal. See App.R. 9. When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the regularity of the lower court's proceedings and affirm.Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197,400 N.E.2d 384. For this reason, the six assignments of error are overruled. {¶ 11} Accordingly, judgment is affirmed. It is ordered that appellee recover of appellant the costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Domestic Relations Division of 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. *Page 6 KENNETH A. ROCCO, J. and MARY EILEEN KILBANE, J. CONCUR 1 The parties were married on July 3, 1986, and have two children as issue of the marriage. Their daughter is emancipated and their son is a minor. 2 The divorce proceedings were stayed pending both parties' bankruptcy petitions. 3 Barbara and the court requested documents regarding Masood's businesses, but Masood failed to produce the documents. 4 The trial court noted that Masood filed only a partial transcript in support of his objections. *Page 1

2016-07-06 06:36:56.005304+00

DECISION AND JUDGMENT ENTRY {¶ 1} This is an accelerated appeal from the Ottawa County Court of Common Pleas. Although originally charged with four counts of rape of a victim under age 13, appellant, Robert L. Wilson, agreed to enter a guilty plea, pursuant to North Carolina v. Alford (1970), 400 U.S. 25, to two counts of attempted gross sexual imposition. {¶ 2} The trial court sentenced appellant to maximum sentences, 18 months, on each count and ordered that the sentences be served consecutively. In a single assignment of error, appellant contends that the imposition of maximum consecutive sentences is contrary to law. {¶ 3} The thrust of appellant's argument is that the trial court improperly considered or weighed certain factors when arriving at its conclusion that appellant should receive maximum consecutive sentences. Appellant maintains that R.C. 2929.12 contains no "other factors" category as found by the court and that appellant's five drunk driving charges should not have been considered because R.C. 2929.12(D)(4) limits consideration of a defendant's drug or alcohol abuse history only as it relates to the offense of which he or she was convicted. Moreover, appellant insists, the trial court under no circumstances should have given weight to appellant's "lack of remorse," because to do so would be antithetical to the Alford plea. {¶ 4} R.C. 2929.12(B), (C) and (D) expressly state that the court's sentencing considerations are not limited to the enumerated factors, but should include, "* * * any other relevant factors." Having reviewed the trial court's sentencing colloquy and sentencing judgment entry, we cannot conclude that the "other factors" the court considered were irrelevant to the determination of his sentence. State v. Parker (Jan. 19, 1999), Clermont App. No. CA98-04-025. {¶ 5} While it is true that under North Carolina v. Alford a defendant is permitted to plead guilty to a negotiated reduced charge while maintaining his or her innocence, such a plea does not bind a sentencing court to accept that the defendant is, in fact, not guilty of the more serious offense. Here, appellant maintained his innocence of the original rape accusation and his attorney argued his innocence during the sentencing hearing. Clearly the sentencing court did not believe appellant was not guilty of the more serious acts. {¶ 6} An Alford plea is an accommodation plea motivated by a defendant's desire to obtain a lesser penalty or fear of the consequences of a jury trial, or both. State v. Piacella (1971), 27 Ohio St.2d 92, syllabus. Nevertheless, the Alford plea is nothing more than a species of a guilty plea. State v. Carter (1997), 124 Ohio App.3d 423, 429. While the plea limits the court's sentencing options to those available for a person guilty of the lesser offense, it does not obligate the court to wear blinders when considering sentencing options. Consequently, the sentencing court can properly consider the defendant's "lack of remorse" in fashioning the defendant's sentence. {¶ 7} Accordingly, appellant's single assignment of error is not well-taken. {¶ 8} On consideration whereof, the judgment of the Ottawa County Court of Common Pleas is affirmed. Costs to appellant. JUDGMENT AFFIRMED. Peter M. Handwork, P.J., Richard W. Knepper, J., and Arlene Singer, J.

2016-07-06 06:36:53.056498+00

OPINION {¶ 1} Plaintiff-appellant, Stacy Lynn Gossard, appeals the October 20, 2004 judgment of the Court of Common Pleas, Juvenile Division, of Wyandot County, Ohio, adopting the decision of the magistrate and designating defendantappellee Brad E. Miller the residential parent of the parties' son, Chad Miller. By a previous judgment entry on September 23, 2004 the trial court had overruled Stacy's objections to the Magistrate's decision. {¶ 2} Brad and Stacy met while working together. They were both married when they met, but they entered into an adulterous relationship in 2001. After their relationship had begun, Stacy separated from her husband, Larry Gossard, and moved out of her marital residence in March 2001. Brad later separated with his wife, Teresa Miller, and moved into Stacy's residence in October 2001. Little more than a month later, Brad moved out. After that, Larry and Stacy attempted a reconciliation; Larry moved back in with her in December 2001 although they were finalizing their divorce at the same time. {¶ 3} Chad was born on May 18, 2002. Shortly thereafter, Brad and Stacy attempted to reconcile, and Stacy moved out to Nevada with Chad where Brad was then residing. Two months later, Stacy and Larry decided that they could work through their marital difficulties, and Stacy moved back to Upper Sandusky, Ohio to live with Larry. Although Stacy and Larry had previously had a son together, Brandon Gossard, the record is unclear as to who had custody of Brandon at this time. However, in June or July 2002, when Stacy moved back to Ohio, it is apparent that she and Larry were living together and had custody of both Brandon and Chad. Additionally, sometime during this period Brad and Teresa reconciled as well, and Brad moved back in with Teresa and their kids in Carey, Ohio. {¶ 4} On August 30, 2002 the Wyandot County Child Support Enforcement Agency (CSEA) filed a complaint seeking to establish a parent-child relationship. On November 19, 2002 the parties came to a mutual agreement and filed a consent judgment entry establishing that Brad is Chad's biological father and designating Stacy as Chad's temporary residential parent. On January 28, 2003 the magistrate filed his decision adopting the parties' stipulated agreement. The magistrate's decision designated Stacy as the residential parent, ordered Brad to pay child support, and granted standard visitation rights to Brad. The trial court adopted that decision in its February 2, 2003 judgment entry. {¶ 5} On December 16, 2003 Brad filed a motion to modify the allocation of parental rights and responsibilities. The court appointed a guardian ad litem (GAL) in response to a motion made by Brad, and the GAL filed a report with the trial court after investigation, recommending that Brad be named residential parent. {¶ 6} The matter was heard on April 14, 2004 in front of a magistrate, and the magistrate issued a decision on May 27, 2004 designating Brad as the residential parent. Stacy filed objections to the magistrate decision, but the trial court overruled those objections and adopted the decision of the trial court in its September 23, 2004 judgment entry. Stacy appealed, asserting the following assignment of error: THE MODIFICATION OF THE RESIDENTIAL PARENT IS CONTRARY TO LAW. {¶ 7} Stacy contends that the decision modifying the residential parent is contrary to law because the lower court did not make the necessary findings under R.C. 3109.04(E)(1)(a). Specifically, appellant argues that the evidence does not support a finding that there was a substantial change in circumstances warranting a change in parental rights, and that the change in parental rights is not in Chad's best interests. {¶ 8} Decisions concerning child custody matters rest within the sound discretion of the trial court. Miller v. Miller (1988), 37 Ohio St. 3d 71. The judge, acting as the trier of fact, is in the best position to observe the witnesses, weigh evidence and evaluate testimony. In reBrown (1994), 98 Ohio App. 3d 337. Therefore, we must not substitute our judgment for that of the trial court's absent an abuse of discretion.Miller, 37 Ohio St.3d at 74; Davis v. Flickinger (1997), 77 Ohio St. 3d 415,418. Accordingly, we will not reverse a trial court judgment that is "supported by a substantial amount of credible and competent evidence."Bechtol v. Bechtol (1990), 49 Ohio St. 3d 21, 550 N.E.2d 178, syllabus. {¶ 9} The issue presented in this case is therefore whether the trial court's decision to modify the allocation of parenting rights and responsibilities is supported by a substantial amount of competent, credible evidence. Before a court can make such a modification, the trial court must find, "based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree," that (1) a change in circumstances has occurred, (2) a change in the parental rights and responsibilities is in the best interests of the child, and (3) one of the factors listed in R.C. 3109.04(E)(1)(a)(i) — (iii) applies. R.C. 3109.04(E)(1)(a). In the case sub judice, this requires the trial court to find "(iii) [that] the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child." Id. {¶ 10} The threshold inquiry is whether a change has occurred in the circumstances of one of the parents or of the child; this issue must be addressed before moving to the final two prongs of the test. Id., Millerv. Miller (1988), 37 Ohio St. 3d 71, 74. The record contains substantial competent, credible evidence supporting the finding that a change in circumstances has occurred. {¶ 11} First, there is evidence in the record that Stacy and Larry were interfering with Brad's visitation rights in various ways. One parent having a relationship with someone "that creates hostility by the residential parent, frustrating attempts at visitation, may be an unforeseen change in circumstances * * *." Davis, 77 Ohio St.3d at 419. There is ample evidence in the record indicating that the Gossards had frustrated Brad's visitation rights: Larry threatened and was hostile towards Brad during exchanges, Stacy refused to make exchanges at a neutral location, and Stacy constantly changed the "procedures" by which exchanges would be made by first prohibiting Brad from approaching the house and then refusing to come out to meet him at the curb. Moreover, Stacy was constantly out of contact with Brad. She frustrated attempts at communication by changing phone numbers without telling him, and then only provided a cell phone number but did not keep her cell phone on. Moreover, Stacy refused to agree to a change in the parenting schedule when Brad's work schedule changed to weekends, preventing him from spending any time with his son. {¶ 12} Second, the magistrate's decision relied on evidence exhibiting a change in Chad's behavior. The magistrate found that Chad had started "`banging' his head on hard surfaces, throwing things, having temper `fits,' and crying." The record supports this finding — all of Stacy's witnesses testified to this behavior. Importantly, while this behavior was sufficient to cause concern to the Gossard's babysitter, the Gossards themselves did not seek a medical or psychological evaluation of Chad. While this change in behavior may have coincided with the beginning of visitations with his father's family, there is no evidence that this type of behavior occurred in the Miller home. {¶ 13} Third, most troubling was the evidence presented concerning the circumstances in the Gossard home. Larry has a substantial history of alcohol use/abuse, and there was evidence in the record which indicates he may have given Chad and his own son Brandon alcohol. In one instance, Brad picked up Chad for visitation and there was a wet spot on Chad's shirt that smelled like beer. Brad notified the police, and the GAL's report indicates that the Sheriff's Department agreed that Chad smelled of beer. The GAL report also revealed several instances where Larry had given alcohol to his other children, including wine coolers and beer, which he referred to as "barley pop." The report also included this entry: During his visit, GAL asked Brad to get a can of soda [out] of therefrigerator. GAL asked Brad if he would offer the can to Chad and referto it as "barley pop." When first offered Chad walked away [and] frownedand then when Brad offered it again, Chad pushed it away, turned with anunhappy expression on his face and grabbed hold of and hugged hisstepmother Teresa. 3/6/04 This evidence, though circumstantial, causes serious concerns when coupled with the reported instances of Larry giving alcohol to children and the documented report of Chad smelling of beer. {¶ 14} In addition to this evidence, there were other reported difficulties in the Gossard household. There are several reports of abuse and neglect, including three instances in which Children's services opened investigations, two of which were from mandatory reporters, the school and the police. There was also testimony pertaining to a recurring rash on Chad which Stacy failed to have treated. {¶ 15} Based on the foregoing, we find that there is sufficient evidence in the record to support the trial court's conclusion that a change of circumstances had occurred. The evidence was sufficient to establish the first prong of R.C. 3109.04(E)(1)(a). {¶ 16} The second prong of the test requires the trial court to find that the reallocation of parenting rights and responsibilities is in Chad's best interests. A non-exhaustive list of factors to be considered in this determination is outlined in R.C. 3109.04(F)(1). As previously indicated, there is a substantial amount of competent, credible evidence in the record supporting the court's conclusion that Chad's interaction and interrelationship with Larry, his stepfather, would not be in his best interests. R.C. 3109.04(F)(1)(c). In addition to the evidence mentioned above, Larry's own testimony causes concerns. He testified at the hearing in regards to disciplining the children: "A whack on the butt or send `em to bed or stand them in the corner. Taking the TV away from Brandon is the funnest, (sic) though. That really hurts him." Larry's theory of discipline as a means of "hurting" his children psychologically or emotionally is deeply troubling, as is the admission that he takes some form of pleasure out of it. Taken together, this evidence supports the conclusion that it is not in Chad's best interests to reside in the Gossard home. {¶ 17} Moreover, the evidence in the record supports the conclusion that Brad is "the parent more likely to honor and facilitate court-approved parenting time rights" and that Stacy has "continuously and willfully denied visitation." R.C. 3109.04(F)(1)(f) (i). We documented some of the problems surrounding exchanges of Chad supra. The parties were having such difficulties at the exchanges that they routinely involved the police. The evidence shows that Larry frequently involved himself in the exchanges and made threatening statements and gestures towards Brad, and that Stacy refused to make the exchanges a neutral site where Larry would not be present. The evidence also shows that Stacy denied Brad his parenting rights on four separate occasions. There were instances where Brad sought to exercise his visitation rights and the Gossards were not at their home. Finally, there was evidence in the record that Stacy refused to re-work the parenting schedule when Brad's job began requiring him to work Thursdays through Sundays, thereby preventing him from spending any time with Chad on visitation weekends. {¶ 18} Based on the foregoing, we find that there is sufficient evidence in the record supporting the trial court's finding that modifying the parenting rights is in Chad's best interests. Therefore, the second prong of R.C. 3109.04(E)(1)(a) is met. {¶ 19} Finally, although Stacy does not argue this issue in her appeal, the evidence in the record supports the trial court's determination that the benefits of reallocating parenting rights and responsibilities outweigh the harm. The documented reports of abuse and neglect in the Gossard, Larry's repeated alcoholrelated difficulties and his failure to seek treatment, and the change in Chad's behavior that manifests itself only in the Gossard home all support the conclusion that Chad will strongly benefit from a change in environment. Thus, the third prong of R.C. 3109.04(E)(1)(a) is met. {¶ 20} Accordingly, the trial court did not error in reallocating the parental rights and responsibilities by designating Brad as the residential parent. The assignment of error is overruled, and the judgment of the trial court is affirmed. Judgment Affirmed. Cupp, P.J., and Rogers, J., concur.

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OPINION On May 14, 1999, appellant, Joann Mitchell, filed an administrative appeal and a complaint in the Geauga County Court of Common Pleas, contesting the denial of her claim for worker's compensation. In her complaint, appellant alleged that she injured her right knee, on June 6, 1998, while employed by appellee, Carlisle Engineering Products ("Carlisle"), in Chardon, Ohio. A jury trial was held on March 20 and 21, 2000. At the trial, the evidence revealed that appellant's job at Carlisle required her to cut, inspect, and pack drain hoses for automobiles. The hoses are about four feet long, but it is unclear how heavy they are. Appellant's job required her to cut the hoses using an electrical saw and put them on a rack over the machine. When she had a bundle of at least twenty cut hoses, she would turn and put it in a container on the floor to her right. Appellant testified that her injury occurred as she was turning to put a bundle of hoses in a container. Two of appellant's coworkers testified that on the day of the injury, they heard a pop and appellant screaming in pain, but did not see how her injury occurred. After the injury occurred, appellant asked her supervisor if she could go home because her knee hurt, but did not tell him about the incident. She did not fill out an accident report until a few days after the incident. Appellant was treated by Dr. Michael J. Jurenovich, who diagnosed her as having a torn meniscus in her right knee. Appellant had three surgeries on her knee within a year of her injury, the last one being a complete knee replacement. Dr. Jurenovich testified by videotaped deposition. The trial court sustained numerous objections to his testimony that it was his opinion that appellant's injury occurred at work. His basis for that opinion was that appellant told him that she had injured her knee at work. On cross-examination, Dr. Jurenovich testified that he did not know the nature of appellant's employment and that appellant had not described for him the exact cause of her injury, twisting of the knee. Dr. Jurenovich testified that he had not seen and did not rely on the emergency room report. He also testified that because appellant was overweight, she was at a higher risk of suffering a torn meniscus without a traumatic injury. Dr. Daniel Mazanec testified that he examined appellant at the request of appellee. He testified that appellant had osteoarthritis in her knees and synovitis, an abnormally inflamed lining of the joint. His opinion was that appellant's knee problems were caused by a degenerative knee condition, not from a work injury. Dr. Mazanec based his opinion on his examination of appellant and a review of her past medical records, which revealed that her arthritis was apparent in December 1996. Dr. Mazanec testified that an MRI report showed that her right meniscus was intact shortly after the injury. On March 22, 2000, the jury returned a verdict in favor of appellee. Appellant assigns the following error on appeal: "The trial court improperly excluded testimony of Plaintiff's treating doctor." Appellant asserts that she had the right to have her treating doctor give his opinion on the causal relationship between her employment and her injury. She argues that the trial court erred by refusing to admit Dr. Jurenovich's testimony that was based on a direct personal examination. In support of her argument, appellant cites Evid.R. 703, Evid. R. 7051, and Lambert v. Goodyear Tire Rubber Co. (1992), 79 Ohio App. 3d 15, 606 N.E.2d 983 (holding that physicians may base their expert opinions on direct personal examinations). The standard to be applied with respect to the trial court's decisionto admit or exclude evidence rests within the sound discretion of thetrial court. Id. To obtain a reversal of that decision, the appellantmust demonstrate an attitude that is unreasonable, arbitrary orunconscionable. AAAA Enterprises, Inc. v. River Place Community UrbanRedevelopment Corp. (1990), 50 Ohio St. 3d 157, 161. The trial judge admitted Dr. Jurenovich's entire deposition with the sole exception of his opinion on causation. He was qualified as an expert witness, but he did not qualify his opinion on the issue of causation by complying with the terms of Evid.R. 703 and Evid.R. 705. Under Evid.R. 705, an expert can give an opinion only after disclosing the underlying facts or data upon which the opinion was based. Under Evid.R. 703, those facts or data can be either observed by the expert personally or admitted in evidence at the hearing. Appellant's emergency room medical records were properly admitted into evidence at trial. These records described how appellant began to have pain in her knee as she moved side to side on the assembly line. Dr. Jurenovich was asked directly in his deposition whether he had relied on the emergency room records in forming his opinion. He flatly denied relying on the emergency room records, or even having seen the records. Dr. Jurenovich also testified that he had not heard about appellant's statement to the emergency room doctors, that she hurt her knee while moving side-to-side on the assembly line, until appellee's counsel cross examined him about it during the deposition — after he had given his opinion. At his deposition, Dr. Jurenovich testified that he based his opinion on appellant's statement that she injured herself at work. He did not know what appellant did at work to cause the injury or explain in his testimony how the type of work in which appellant was engaged could cause such an injury. Thus, his opinion was essentially a recitation of appellant's hearsay statement, and not an opinion that would be helpful to the jury. While the hearsay statement was admissible, under Evid.R. 803(4), Dr. Jurenovich's mere recitation of appellant's statement that she hurt her knee at work does not constitute testimony relating to matters beyond the knowledge or experience of the average lay person. Evid.R. 803(4); Evid.R. 702(A). The jury had before it the testimony of appellant and two of her co-workers concerning the circumstances surrounding the day she claimed to have injured her leg. Dr. Jurneovich's non-expert testimony that appellant told him she injured her leg at work would do nothing to strengthen her claim and could prejudice appellee, by giving that statement the appearance of an expert opinion. Appellant's sole assignment of error is without merit. Based on the foregoing reasoning, the judgment of the Geauga County Court of Common Pleas is affirmed. ____________________________ JUDGE ROBERT A. NADER O'NEILL, P.J., dissents with dissenting opinion, CHRISTLEY, J., concurs. 1 Evid.R. 703 states: "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing." Evid.R. 705 states: "The expert may testify in terms of opinion or inference and give his reasons therefor after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise."

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For the reasons that follow, I must respectfully dissent in this matter. The record in this matter is perfectly clear that on June 6, 1998, appellant was at work cutting, inspecting and packing drain hoses for automobiles. The work required her to cut the hoses using an electrical saw, and when she had completed a bundle of twenty hoses, she would "turn and put it in a container on the floor * * *." At trial appellant testified, under oath, that she injured her knee when she was turning to put a bundle of hoses in a container. Two of her co-workers testified, under oath, that they heard a loud "pop" at the time of the incident, but that they did not actually see the injury. Appellant did not finish her shift and was permitted to go home early after telling her supervisor that her knee hurt. The following day, June 7, 1998, appellant was treated at the Emergency Department of Trumbull Memorial Hospital, where her "Chief Medical Complaint" indicates that a "46 year-old white female who presents to the Emergency Department complaining of right knee pain. Pt states while working yesterday, she began to have pain in her right knee. She states that `as she would movesideways along the assembly line she could hear pops on both sides of herknees, causing her knee to give out * * *.'" (Emphasis added) Appellant was seen by an Orthopedic Surgeon, Doctor Michael Jurenovich, who stated under oath that "she was sent to me from the ER with an injured right knee on 6-8-98." The doctor stated that "she was referred to me by the emergency room physician the previous weekend for a twisted knee. I saw her, I offered her a cortisone injection; she deferred that idea. I thought she had torn cartilage in her knee * * *." In taking her history and performing his initial examination, Doctor Jurenovich found that "she said that she hurt her knee at work" and that "she denied any previous history of trauma other than her injury two days earlier." His physical findings indicated painful range of motion in the right knee with some swelling, pain along the medial joint line with hyperflexion. In his trial deposition, Doctor Jurenovich indicated that approximately one month later, on July 11, 1998, "Joanne still has ongoing right knee pain with problems and swelling. I reviewed the MRI report with her from last week. Patient now likes to proceed with arthroscopic surgery of her knee sometime next month at the hospital." Ultimately the doctor performed a total knee replacement on April 22, 1999. In answer to the question of appellant's counsel, the doctor expressed the opinion, based upon "your education, your experience, the examination of Joanne Mitchell, the history you took, your review of the diagnostic studies previously discussed, the operative notes and your many treatments * * *" that "she was hurt at work in the summer of '98." The trial court sustained appellee's objection and, thus, the jury was not permitted to hear the doctor's opinion. A defense verdict was returned for the employer. In order to participate in the Workers' Compensation Fund, an employee must demonstrate that they have been injured in the course and scope of their employment. In matters which are outside the realm of common knowledge, the standard of proof is by competent medical evidence. It is well settled that an expert testifying on the issue of proximate cause must state an opinion with respect to the causative event in terms of probability. Stinson v. England (1994), 69 Ohio St. 3d 451, paragraph one of syllabus. An expert is not required to recite any particular "magic words," but his testimony, when considered in its entirety, must be equivalent to an expression of probability. Hampton v. Eckhart (Nov. 19, 1991), Montgomery App. No. 11976, unreported, 1991 Ohio App. LEXIS 5590. The purpose of having an expert testify is to assist the jury in understanding matters which are within the expertise of the witness. Rarely, if ever, are the experts present at the place of injury. Thus, their testimony is going to be based almost exclusively on evidence which is properly before the jury. In the case of Blakeman v. Condorodis (1991), 75 Ohio App. 3d 393, the court found it be error to exclude the testimony of a physician which relied upon x-rays which he did not personally view. The court held, properly I believe, that the basis of an expert's testimony, flawed or perfect, goes only to its weight, and not its admissibility. Id. at 396 In the instant matter, the doctor saw the patient two days after her injury at work, took a history and performed a physical examination. The trial court and my distinguished colleagues take great issue with the lack of thoroughness of the doctor in questioning the patient on the precise mechanism of injury. Such an inquiry is clearly within the realm of cross-examination and the record is replete with counsel's attempts to demonstrate to the jury that the doctor simply did not have a sufficient basis to render his opinion. They may be right. However, as a matter of law, that is a question for the jury to decide. Evid.R. 703 requires that opinion testimony by an expert witness be based upon facts within that witness's own personal knowledge or upon facts shown by the evidence. Mahan v. Bethesda Hosp., Inc. (1992),84 Ohio App. 3d 520, 525. There is no question that the issue of "sliding" and "turning" on the assembly line, followed by the "popping" noise were in evidence before the jury. It was wholly improper for the trial judge to not permit the treating physician to render an opinion based upon those admitted facts. In Hampton the Second District Court of Appeals stated the following: "[i]t is not necessary that medical experts give boilerplate `legal jargon' answers to every question asked by counsel. They are not computers capable of precisely stating their opinion in legal terms. Physicians should be afforded some leeway to put forth their opinion in their own style and manner befitting their personality and keeping with their own thought process. A recitation of the appropriate legal standard is not required. What is required is that the physician's testimony when considered in its entirety, is equivalent to the legal requirements of probability. Words and phrases that connote or are equivalent to probability are sufficient." Hampton at 6-7. To be admissible, an expert's opinion regarding the proximate cause of an event must be expressed in terms of "probability." Stinson. "An event is probable if there is a greater than fifty percent likelihood that it produced the occurrence at issue." Id. The expert's testimony need not include the magic words "probability" or "certainty" but, when reviewed in its entirety, it "must be equivalent to an expression of probability." Schroeder v. Parker (Dec. 10, 1998), Cuyahoga App. No. 73907, unreported, 1998 Ohio App. LEXIS 5919. Finally, I must respectfully take issue with the legal analysis in the majority opinion with respect to the history given by the patient to her physician. The majority suggests that when the patient stated she was injured at work, this was a hearsay statement. This is true. However, Evid. R. 803(4) clearly grants an exception to the hearsay rule for: "Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." In a workers' compensation trial, the statements given to physicians, along with the conclusions as to their veracity made by the physicians, are at the heart and soul of the matter. The jury had every right to know what the treating physician knew and thought. Without his opinion, their verdict is speculative at best. I am not saying that the doctor needed to be believed. But he had to be heard. ____________________________ JUDGE WILLIAM M. O'NEILL

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DECISION AND JUDGMENT ENTRY {¶ 1} Jerome Smith appeals the Washington County Common Pleas Court's dismissal of his petition for post-conviction relief for lack of jurisdiction. On appeal, Smith contends that the trial court erred when it enhanced his sentence by using facts neither admitted by him nor found by a jury. Thus, he concludes that his sentence is void because he received a non-minimum sentence in violation of Apprendi v. NewJersey (2000), 530 U.S. 466, Blakely v. Washington (2004), 542 U.S. 296, and State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856. Because Smith did not file his petition within the 180-day time period as required by R.C.2953.21(A)(2), and because he failed to show that his untimely petition comports with R.C. 2953.23(A)(1), we find that the trial court properly dismissed his untimely petition for lack of jurisdiction. Accordingly, we *Page 2 overrule both of Smith's assignments of error and affirm the trial court's judgment. I. {¶ 2} On October 5, 2004, Smith pled guilty to possession of drugs, a third degree felony. He received a non-minimum, three-year prison term on November 16, 2004. The court filed an amended sentencing entry on December 13, 2004 to reflect that it had also imposed a three-year driver's license suspension. Smith did not file a direct appeal. {¶ 3} On May 31, 2006, Smith filed a "Motion to Vacate and Modify Judgment." He asked the court to re-sentence him under theFoster holding and in accordance with Apprendi and Blakely. The court dismissed Smith's motion without a hearing because it held that it lacked jurisdiction. It cited State v. Barney, Meigs App. No. 05CA11,2006-Ohio-4676 in support. {¶ 4} In a pro se appeal of the trial court's judgment, Smith asserts the following two assignments of error: I. "THE TRIAL COURT COMMITTED PREJUDICIAL REVERSABLE ERROR, PURSUANT TO THE U.S. CONST. ART. VI, ANDFIFTH, SIXTH, AND FOURTEENTH AMEND. OF THE U.S. CONST." (Sic.) And, II. "THE SENTENCE IMPOSED IS VOID PURSUANT THE SIXTH AND FOURTEENTH AMEND. TO THE UNITED STATES CONSTITUTION, AND UNDER CLEARLY ESTABLISHED FEDERAL LAW. (Cites omitted.) AS THE OHIO SUPREME COURT FOUND IN FOSTER, SUPRA, CERTAIN OHIO STATUTES ARE UNCONSTITUIONAL." (Sic.) II. *Page 3 {¶ 5} Smith's "Motion to Vacate and Modify Judgment" sought to vacate his sentence due to alleged constitutional violations. Therefore, the trial court properly treated his motion as a petition for post-conviction relief as defined in R.C. 2953.21. State v.Reynolds (1997), 79 Ohio St. 3d 158, syllabus. Consequently, Smith had to follow the procedure outlined in that statute. {¶ 6} Because Smith's assignments of error are interrelated, we consider them together. The crux of Smith's appeal is that the trial court's sentence is void for constitutional reasons because the trial court enhanced his sentence by considering facts neither admitted by him nor found by a jury. He cites Apprendi, Blakely, and Foster in support of his arguments. {¶ 7} This Court's standard of review is de novo when the trial court neither holds an evidentiary hearing nor makes findings of fact before dismissing or denying a petition for post-conviction relief that involves sentencing issues. State v. Gondor, 112 Ohio St. 3d 377,2006-Ohio-6679, ¶¶ 46, 50. Hence, we independently review the record without deference to the trial court's decision. {¶ 8} R.C. 2953.21 and R.C. 2953.23 govern a petition for post-conviction relief. A defendant convicted of a criminal offense who shows 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 Constitution of the United States" is entitled to relief from his sentence. R.C. 2953.21. {¶ 9} Under R.C. 2953.21(A)(2), a defendant who does not directly appeal must file a petition for post-conviction relief no later than 180 days after the expiration of the time for filing an appeal. If a defendant's petition is untimely *Page 4 under R.C. 2953.21(A)(2), then his untimely petition must comport with R.C. 2953.23(A)(1). {¶ 10} Pursuant to R.C. 2953.23(A)(1), a court may not entertain a delayed petition for post-conviction relief unless the petitioner satisfies a two-pronged test. First, the petitioner must show either: "that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in [R.C. 2953.21 (A)(2)] 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." R.C. 2953.23(A)(1)(a). Second, the petitioner must show "by clear and convincing evidence that, but for constitutional error at trial, no reasonable fact finder would have found the petitioner guilty of the offense of which the petitioner was convicted * * *." R.C. 2953.23(A)(1)(b). {¶ 11} If a defendant neither timely files his petition under R.C.2953.21(A)(2) nor shows that his untimely petition comports with R.C.2953.23(A)(1), then the trial court lacks jurisdiction to consider his petition. See, e.g., State v. Gibson, Washington App. No. 05CA20,2005-Ohio-5353, ¶ 10, appeal not allowed, 108 Ohio St. 3d 1439,2006-Ohio-421. {¶ 12} Here, Smith had until January 12, 2005 to file a direct appeal from the December 13, 2004 sentencing entry. Smith had 180 days from January 12, 2005 to file his petition for post-conviction relief. However, he did not file it until May 31, 2006. Hence, Smith's petition was untimely under R.C. 2953.21(A)(2). *Page 5 Consequently, Smith had to comport with R.C. 2953.23(A)(1) before the trial court could consider the merits of his petition. {¶ 13} Smith essentially contends that his untimely petition complies with R.C. 2953.23(A)(1)(a) because the Apprendi, Blakely, andFoster decisions created a "new federal right" that applies to his situation. He asserts that this "new federal right" prohibits a court from enhancing a sentence based on facts neither admitted by a defendant nor found by a jury. Based on this new right, he claims his non-minimum sentence is void, because the trial court used facts neither admitted by him nor found by a jury to enhance his sentence. The trial court relied on our decision in Barney, supra, to dismiss the petition for lack of jurisdiction. {¶ 14} In Barney, we held that the right created in Apprendi and followed in Blakely and Foster did not apply "retroactively" to cases that were not on direct review. See United States v. Booker (2005),543 U.S. 220 (holdings in Apprendi and Blakely are restricted to cases on direct review); Foster (holding limited to cases on direct review or not yet final). Therefore, a defendant who does not directly appeal a final judgment cannot use the right created in Apprendi to satisfy the "new federal or state right" exception to the 180-day period for filing a petition for post-conviction relief. See R.C. 2953.23(A)(1)(a). Accordingly, in Barney, we agreed with the trial court that it lacked jurisdiction to consider the untimely petition. {¶ 15} The Foster court followed Apprendi and Blakely and found some of Ohio's sentencing statutes unconstitutional. R.C. 2929.14(B), which required *Page 6 judicial findings prior to imposition of non-minimum sentences, was one of the statutes found to violate the Sixth Amendment right to a jury trial because it required judicial fact-finding before imposition of non-minimum sentences. Foster, at paragraph one of the syllabus. We have held that Blakely and Foster did not create a new federal or state right, because they only applied principles established earlier inApprendi. See, e.g., State v. Volgares, Lawrence App. No. 05CA28,2006-Ohio-3788, at ¶ 11, appeal not allowed, 111 Ohio St. 3d 1433,2006-Ohio-5351; State v. Wilson, Lawrence App. No. 05CA22,2006-Ohio-2049, at ¶ 14; State v. Cottrill, Pickaway App. No. 06CA20,2006-Ohio-6943, at ¶ 13. {¶ 16} Here, we agree with the trial court that it lacked jurisdiction to consider Smith's petition. Smith did not directly appeal his underlying possession of drugs sentence. Thus, any right created inApprendi, Blakely, or Foster is not retroactive to his situation because his case is on collateral review, not direct review. SeeGondor, supra, at 387-388, quoting State v. Steffen (1994),70 Ohio St. 3d 399, 410 ("A post-conviction proceeding is not an appeal of a criminal conviction, but, rather, a collateral civil attack on the judgment."). Because Smith failed to comply with R.C. 2953.23(A)(1)(a), we do not need to consider R.C. 2953.23(A)(1)(b). {¶ 17} Further, the doctrine of res judicata applies. The trial court sentenced Smith in late 2004, after Apprendi and Blakely were decided. Therefore, Smith could have filed a direct appeal of his sentence based on Apprendi and Blakely. See, e.g., Cottrill, supra, at ¶ 14. *Page 7 {¶ 18} Therefore, we find that Smith's untimely petition fails to comport with R.C. 2953.23(A)(1). Consequently, the trial court lacked jurisdiction to consider Smith's petition. {¶ 19} Accordingly, we overrule both of Smith's assignments of error and affirm the trial court's dismissal of his petition. JUDGMENT AFFIRMED. *Page 8 JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that the costs herein be taxed to the Appellant. 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. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions. McFarland, P.J. and Harsha, J.: Concur in Judgment and Opinion. *Page 1

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OPINION *Page 2 {¶ 1} On July 3, 2007, appellant, David Zamore, was cited for speeding in violation of R.C. 4511.21. A hearing before a magistrate commenced on July 30, 2007. By decision filed same date, the magistrate found appellant guilty, and recommended he pay a fine and costs. By judgment entry filed July 31, 2007, the trial court confirmed and adopted the magistrate's decision. {¶ 2} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I {¶ 3} "THE TRIAL COURT DENIED THE DEFENDANT DUE PROCESS AND A FAIR TRIAL BY RELYING ON INADMISSIBLE EVIDENCE TO SUPPORT A GUILTY VERDICT." (FOOTNOTE OMITTED.) II {¶ 4} "THE TRIAL COURT DENIED THE DEFENDANT A FAIR TRIAL BY FAILING TO RECOGNIZE SEIZURE PROTECTIONS AFFORDED BY THE OHIO AND UNITED STATES CONSTITUTIONS." (FOOTNOTE OMITTED.) I {¶ 5} Appellant claims the traffic stop was an unlawful seizure because it occurred on private property. Therefore, any evidence from the stop should have been suppressed. We disagree. {¶ 6} Crim.R. 12 governs pleadings and motions before trial. Subsection (C)(3) states the following: {¶ 7} "(C) Pretrial motions *Page 3 {¶ 8} "Prior to trial, any party may raise by motion any defense, objection, evidentiary issue, or request that is capable of determination without the trial of the general issue. The following must be raised before trial: {¶ 9} "(3) Motions to suppress evidence, including but not limited to statements and identification testimony, on the ground that it was illegally obtained. Such motions shall be filed in the trial court only." {¶ 10} Appellant never filed a motion to suppress. We find the failure to challenge the stop via a pretrial motion bars review on appeal. {¶ 11} Assignment of Error I is denied. II {¶ 12} Appellant claims the stop was unreasonable because it occurred on private property. We disagree. {¶ 13} Crim.R. 19 governs magistrates. Subsection (D)(3)(b) governs objections to magistrate's decision, and subsection (iv) provides the following: {¶ 14} "(iv) Waiver of right to assign adoption by court as error onappeal. Except for a claim of plain error, a party shall not assign on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Crim. R. 19(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Crim.R. 19(D)(3)(b)." {¶ 15} No objections were filed sub judice. In its judgment entry filed July 31, 2007, the trial court confirmed and adopted the magistrate's decision. Because the entry does not raise issues on its face of a defect in law, we find appellant's failure to file objections to be fatal to his appeal. *Page 4 {¶ 16} Assignment of Error II is denied. {¶ 17} The judgment of the Municipal Court of Delaware County, Ohio is hereby affirmed. Farmer, J. Hoffman, P.J. and Delaney, J., concur. *Page 5 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Municipal Court of Delaware County, Ohio is affirmed. *Page 1

2016-07-06 06:36:53.620643+00

OPINION Appellant Debra Winters Bergandine appeals a summary judgment of the Delaware County Common Pleas Court dismissing her complaint for breach of contract, promissory estoppel, and breach of fiduciary duty against appellee Office of City Manager, City of Delaware: ASSIGNMENTS OF ERROR: I. THE TRIAL COURT ERRED IN FAILING TO APPLY OHIO'S GROUP HEALTH INSURANCE COORDINATION OF BENEFITS ("COB") PROVISIONS SET FORTH IN OHIO REVISED CODE 3902.13 AND OHIO ADMINISTRATIVE CODE 3901-1-56 TO ITS DECISION AND JOURNAL ENTRY GRANTING SUMMARY JUDGMENT TO APPELLEE. II. HAD THE TRIAL COURT PROPERLY APPLIED OHIO'S GROUP HEALTH INSURANCE COB PROVISIONS AS THEY ARE SET FORTH IN OHIO REVISED CODE 3902.13 AND OHIO ADMINISTRATIVE CODE 3901-1-56 TO THE DECISION CONTAINED IN ITS DECISION AND JOURNAL ENTRY, APPELLANT WOULD HAVE BEEN ENTITLED TO JUDGMENT AS A MATTER OF LAW ON HER CLAIM FOR BREACH ON CONTRACT. In July of 1996, appellant, who had been employed by appellee, went on sick leave and ceased working full-time hours. Because she was no longer working full time, she was not qualified to continue the employee health care benefit plan offered by appellee. Appellee extended appellant the opportunity for coverage at an increased premium, pursuant to COBRA. Appellee was the plan administrator of the plan. On August 12, 1996, appellant accepted the offer, tendered payment of the first month's premium, and continued to make timely monthly premium payments to maintain coverage through April 30, 1997. During the time the continued health benefits were in force, appellant submitted medical bills totaling $8,048.10 for coverage under the plan. Appellee refused to pay, claiming that pursuant to the terms of the policy, the continuation coverage is secondary to coverage provided by appellant's husband's employer. After appellee refused to pay, appellant filed the instant action. She alleged breach of contract, promissory estoppel, and breach of fiduciary duty. Appellee moved for summary judgment. The court found that the terms of the policy were clear and unambiguous, and the policy was secondary in nature to appellant's husband's policy. The court entered summary judgment and dismissed the case. I. II. We address both Assignments of Error together, as both address the same issue of whether the coordination of benefits provision in the continuation coverage policy administered by appellee conflicts with R.C. 3902.13 and Ohio Administrative Code3901-1-56(B)(5). R.C. 3902.13(A)(2) provides: (A) A plan of health coverage determines its order of benefits using the first of the following that applies: (1) A plan that does not coordinate with other plans is always the primary plan. (2) The benefits of the plan that covers a person as an employee, member, insured, or subscriber, other than a dependent, is the primary plan. The plan that covers the person as a dependent is the secondary plan. Ohio Administrative Code 3901-1-56(G) provides: (G) Order of benefits. Order of benefits shall be determined by the first applicable provision set forth below: (1) The benefits of a plan covering the person as an employee, member, insured, or subscriber, other than as a dependent, shall be determined before those of a plan which covers the person as a dependent . . . * * * (5) Continuation of coverage. If a person whose coverage is provided under a right of continuation pursuant to federal or state law also is covered under another plan, the following shall be the order of benefit determination: (a) First, the benefits of a plan covering the person as an employee, member, or subscriber (or as that person's dependent); (b) Second, the benefits under the continuation coverage. Appellee argues that OAC 3901-1-56(G)(5) specifically applies to the instant case. While the language in that subsection specifically applies to continuation of coverage, both the rule and the statute clearly provide that order of benefits shall be determined by the first applicable provision. The first applicable provision under OAC 3901-1-56 is subsection (G)(1), as appellant is a member, insured, or subscriber under the policy administered by appellee. Similarly, the first applicable provision of R.C. 3902.13(A) is subsection (2), as again, the policy covers her as a member, insured, or subscriber. She is not covered as a dependent under her continuation coverage with COBRA. Appellee argues that because she is a "qualified beneficiary" under the continuation coverage, she is not a member, subscriber, or insured. We disagree. Appellee cannot avoid the clear requirements of the statute and rule by using different terminology to designate the insured. Appellant paid monthly premiums to appellee for continuation coverage, which specifically covered her as a member, subscriber, or insured pursuant to the plan. Therefore, the coordination of benefits section in appellee's continuation coverage contract conflicts with R.C.3902.13(A) and with Ohio Administrative Code 3901-1-56(G). The court's decision concerning appellant's claims for promissory estoppel and breach of fiduciary duty relied on the court's decision that appellee's contract clearly provided secondary coverage. As we have found this decision to be in error, we must reverse the summary judgment on both the promissory estoppel and the breach of fiduciary duty counts. The Assignments of Error are sustained. The summary judgment of the Delaware County Common Pleas Court is reversed. This case is remanded to that court for further proceedings according to law. By: Reader, J., Hoffman, P. J. and Wise, J. concur. For the reasons stated in the Memorandum-Opinion on file, the summary judgment of the Delaware County Common Pleas Court is reversed. This case is remanded to that court for further proceedings according to law. Costs to appellee.

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OPINION {¶ 1} On March 25, 2005, Defendant, Frank Davis, withdrew his prior pleas of not guilty and entered pleas of no contest which the trial court accepted to three drug offenses for which he had been indicted: possession of cocaine in an amount in excess of 1,000 grams, R.C. 2925.11; trafficking in cocaine in an amount in excess of ten grams, R.C. 2925.03; and, trafficking in cocaine, R.C. 2925.03. Davis entered the pleas after the trial court denied his motion to suppress evidence. {¶ 2} On April 13, 2005, the trial court journalized its judgment of conviction and sentence, which imposed a total term of incarceration of twelve years. Davis filed a timely notice of appeal from that judgment. On review, we reversed the judgment of conviction and sentence from which Davis appealed, finding that the trial court erred when it denied Davis's motion to suppress evidence, and remanded the case to the trial court for further proceedings on the three drug charges. State v. Davis (March 31, 2006), Clark App. No. 2005-CA-43. {¶ 3} On remand, the trial court reasoned that our judgment of reversal applied only to Davis's conviction for possession of cocaine, because the State had evidence to support the two trafficking charges independent of the evidence which we held should have been suppressed. In an order dated July 27, 2006, the court refused to release Davis from the imprisonment it had ordered for the two trafficking offenses in its judgment of conviction and sentence, as well as from a fine and license suspension sanctions which the court also imposed. The court further ruled that bank account proceeds owned by Davis which the State had seized would not be released until his fine was paid from them. Davis filed a timely notice of appeal. {¶ 4} ASSIGNMENT OF ERROR {¶ 5} "THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING OF GUILT IN COUNTS TWO AND THREE OF THE INDICTMENT, TRAFFICKING IN DRUGS." {¶ 6} We agree that the trial court erred when it proceeded on our mandate as it did. {¶ 7} Davis appealed from the trial court's April 13, 2005 judgment of conviction and sentence for all three offenses, and we reversed that judgment. Our judgment rendered void both the three convictions the trial court ordered and the sentences it imposed on those convictions. Therefore, Davis was no longer subject to any of the sanctions which his sentences involve, and the trial court erred when it permitted the sanctions the court had applied to the two trafficking offenses to continue in effect. {¶ 8} Our judgment also rendered void the no contest pleas that Davis previously entered to all three charges, because his pleas were tainted by the trial court's error in overruling Davis's motion to suppress evidence. Therefore, irrespective of what other evidence the State had, Davis's no contest pleas could no longer serve as a basis for his convictions of the offenses with which he was charged. The trial court erred when it proceeded on the theory that Davis's pleas remained valid. {¶ 9} Our judgment did not affect the indictment in which Davis was charged with the three drug offenses. The State is therefore free to re-prosecute Davis on any or all of those charges, though it may not make use of evidence that should have been suppressed. If Davis is re-prosecuted, he is entitled to consideration of bond upon his arrest. He is also entitled to a trial on the charges the State elects to prosecute. By proceeding as it did, after his convictions and sentences were rendered void, the trial court denied Davis the right to trial guaranteed by the Sixth Amendment to the Constitution of the United States. {¶ 10} Whether or not the State elects to re-prosecute Davis, he may no longer be imprisoned pursuant to the trial court's April 13, 2005 judgment and conviction of sentence. Davis is entitled to immediate release from that detention, subject only to his re-arrest should the State elect to prosecute him again. {¶ 11} The assignment of error is sustained. The judgment of the trial court dated April 13, 2005 will be reversed, and the case will be returned to the trial court on our mandate to immediately order Davis released from imprisonment and the related sanctions the court imposed upon his three convictions, subject to any re-arrest on the charges against him. Brogan, J. and Fain, J., concur.

2016-07-06 06:36:53.224643+00

OPINION Appellant, Robin D. Nahrstedt, appeals a decision of the Lake County Court of Common Pleas finding him to be a sexual predator pursuant to R.C. Chapter 2950. On September 16, 1983, appellant was found guilty on one count of rape, in violation of R.C. 2907.02; one count of kidnapping, in violation of R.C. 2905.01; and one count of felonious assault, in violation of R.C. 2903.11. He was sentenced to serve five to twenty-five years for rape, five to twenty-five years for kidnapping, to run consecutive to the rape sentence, and four to fifteen years for felonious assault, to be served concurrent with the other sentences. Subsequently, on September 28, 1998, appellant was found to be a sexual predator. Appellant timely filed a notice of appeal and now seeks a reversal of the trial court's determination that Ohio's sexual predator laws are valid and can be enforced against him. Appellant has raised six assignments of error; the first five challenge the constitutionality of Ohio's sexual predator laws, and the final one is a manifest weight challenge to the determination that he is a sexual predator. For the reasons that follow, we affirm the trial court's decision. In the first assignment of error, appellant contends that R.C. Chapter 2950 constitutes a denial of due process and must be held unconstitutional under strict scrutiny because it impairs one's fundamental rights to liberty and privacy. Within this assignment of error, appellant also argues that the statute denies him equal protection of the law. Appellant's argument regarding fundamental rights has been expressly rejected by the Supreme Court of Ohio in State v. Williams (2000),88 Ohio St. 3d 513, wherein the court held that Ohio's sexual predator laws do no improperly impinge upon an offender's natural law rights of privacy, the ability to pursue an occupation, the enjoyment of a favorable reputation, or the acquisition of property. The Williams decision also rejected the argument raised by appellant that the sexual predator laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Id. at 529-531. In the second assignment of error, appellant asserts that R.C. Chapter 2950 is unconstitutionally vague. Specifically, appellant claims that the statute offers no meaningful guidance as to how to determine whether a defendant is a sexual predator, nor does it state which party has the burden of proof. These arguments were each rejected in Williams, supra, wherein the court expressly stated that Chapter 2950 is not impermissibly vague because the statutes provide sufficient guidelines by which a trial court can decide whether the state has established, by clear and convincing evidence, that the defendant is a sexual predator. Id. at 533. The court also made it clear that the state has the burden of proof. Id. In the third assignment of error, appellant maintains that R.C. Chapter 2950 constitutes cruel and unusual punishment. While the Supreme Court of Ohio has not specifically addressed this argument, in State v. Cook (1998), 83 Ohio St. 3d 404, the court held that Ohio's sexual predator law was not punitive but, rather, remedial in nature. In light of this characterization, this court has recently held that the prohibition against cruel and unusual punishment has no application to the sexual offender laws. State v. Wheeler (July 28, 2000), Lake App. No. 99-L-095, unreported, at 3, 2000 WL 1041444. In the fourth assignment of error, appellant submits that R.C. Chapter 2950 is unconstitutional on the basis that it violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The Supreme Court of Ohio rejected this argument inWilliams, supra, based upon its conclusion that the sexual predator proceedings are not criminal in nature. In the fifth assignment of error, appellant contends that R.C. Chapter 2950 violates the Ex Post Facto Clause of the United States Constitution. The Supreme Court of Ohio rejected this challenge in Cook,supra, after determining that the statutory scheme served a remedial purpose and was not punitive in nature. Finally, in the sixth assignment of error, appellant asserts that the trial court's determination that he is a sexual predator is against the manifest weight of the evidence. R.C. Chapter 2950.09(B)(2) provides: "In making a determination under divisions (B)(1) and (3) of this section as to whether an offender is a sexual predator, the judge shall consider all relevant factors, including, but not limited to, all of the following: "(a) The offender's age; "(b) The offender's prior criminal record regarding all offenses, including, but not limited to, all sexual offenses; "(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed; "(d) Whether the sexually oriented offense for which sentence is to be imposed involved multiple victims; "(e) Whether the offender used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting; "(f) If the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense, and, if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sexual offenders; "(g) Any mental illness or mental disability of the offender; "(h) The nature of the offender's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse; "(i) Whether the offender, during the commission of the sexually oriented offense for which sentence is to be imposed, displayed cruelty or made one or more threats of cruelty; "(j) Any additional behavioral characteristics that contribute to the offender's conduct." In the instant cause, the trial court determined that appellant was a sexual predator after making the following conclusions regarding the foregoing factors: "(a) The offender's age at the time of offense was twenty-four (24) years old. "* * * "(c) The victim's age at the time of offense was twenty (20) years old. "* * * "(e) Alcohol use played a role in the offense. "* * * "(i) The offender, during the commission of the offense, displayed cruelty to the victim. "(j) The offender has a subsequent conviction for Sexual Imposition, R.C. 2907.06." After reviewing the record in this case, we conclude that the trial court's decision finding appellant to be a sexual predator is supported by clear and convincing evidence and is not against the manifest weight of the evidence. The trial transcript reveals that appellant, then age twenty-four, met the victim, then age twenty, while he and a male friend were drinking in a bar. She was with two of her friends. When appellant and his friend were leaving, they offered to give the victim a ride home. She accepted but, instead of taking her home, they took her back to appellant's house where they took turns raping her. After raping the victim, appellant proceeded to beat her and repeatedly threatened to kill her. Appellant was holding a gun while making the threats. Appellant then raped her again. Finally, the two men put the victim back in appellant's car, drove around for a while, then dropped her off in a deserted area in the middle of the night. The record also established that after appellant was released on parole in 1990, he was arrested, charged, and convicted of another sexually oriented offense in 1992. Following a bench trial, appellant was found guilty of sexual imposition involving his sixteen year-old niece. Thus, appellant has more than one conviction on sexually oriented crimes. We further consider the psychological report prepared by G.T. Atwood, Ph.D., at the request of the Parole Board. The gist of that report is that appellant has a history of alcohol abuse but, of course, appellant was not drinking while in prison. The psychologist concluded that if appellant remains alcohol-free, there is a "good chance" that he will not reoffend. If, however, appellant returns to drinking, the risk of further offense increases "greatly." Thus, the psychologist's prediction depends, in large part, on future events. Based upon the foregoing analysis, we cannot conclude that the trial court's decision was against the manifest weight of the evidence. Appellant's sixth assignment of error is without merit. The judgment of the trial court is, hereby, affirmed. _______________________ FORD, P.J. CHRISTLEY, J, O'NEILL, J., concur.

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JOURNAL ENTRY AND OPINION *Page 3 {¶ 1} Appellant-father W.M.B. ("father") appeals from an order by the juvenile division of the common pleas court which granted permanent custody of his three children to the Cuyahoga County Department of Children and Family Services (the "agency"). His sole assignment of error is directed to the adjudicatory phase of the proceedings and complains that the court abused its discretion by finding the children neglected and abused because none of the evidence heard at the adjudicatory hearing pertained to him.1 I {¶ 2} Because the father's sole assignment of error relates only to the adjudicatory finding relating to neglect and abuse, we consider only those facts adduced at the adjudicatory hearing. This appeal pertains to the second agency complaint involving mother G.T.'s six children. The mother's former husband fathered two girls and one boy. The appellant-father is the natural parent of two boys (W.B. and C.B.) and one girl (N.B.). In the first complaint, the agency alleged that the children had been neglected and abused because the parents had been *Page 4 physically abusive and the mother and father had permitted the children to be sexually abused by a cousin who lived with them. The mother entered an admission that the children were neglected, and the court granted permanent custody of the children to the agency. This court reversed that disposition, however, finding that the mother's admission of neglect had been infirm because the court failed to advise her of her rights under Juv.R. 29(D). See In re A.C., 160 Ohio App. 3d 457,2005-Ohio-1742, at TJ6-10. {¶ 3} The agency refiled the complaint, alleging that the children had been sexually abused by a cousin who had been residing in the mother's house; that the mother knew about the sexual abuse but did not report it; and that after the cousin had stopped residing in her house, she and the children moved into the same house where the cousin subsequently moved. Paragraphs 6 and 7 of the complaint alleged that the father had (1) demonstrated a lack of commitment toward the children by his failure to provide care or support for the children, and his failure to visit or communicate with the children when able to do so and (2) engaged in acts of verbal and domestic violence with the mother and that those acts placed the children at risk of serious physical and emotional harm. {¶ 4} An agency intake worker was the sole witness at the adjudicatory hearing. She said that the agency received a referral through its KIDS hotline that "the girls" had been sexually abused by a cousin who temporarily lived with them and that the mother and father knew about the sexual abuse but did not stop it. The *Page 5 mother told the father not to call the police because she did not want social services to become involved. By the time the agency received the referral, the cousin had moved out. The intake worker testified that the mother moved in with her sister and the cousin who perpetrated the abuse. During the investigation, the intake worker learned that the mother and father were getting divorced and that there had been incidents of domestic violence between them. It appeared that the father had forced the mother and children to leave the house and seek refuge with the mother's sister. The intake worker testified that there had been an incident of sexual abuse between the mother and N.B. after the family moved in with the mother's sister. {¶ 5} At the conclusion of the adjudicatory hearing, the court stated that "I agree that this certainly is not the strongest case that's ever been presented and in fact I wonder why the Department couldn't have done a little better job if there were such horrific acts occurring." The court concluded, however, that there was clear and convincing evidence to show that the children were abused and neglected. The court found that the allegations made against the father in paragraphs 6 and 7 of the complaint "have not been proven" and dismissed those counts. {¶ 6} After a dispositional hearing, the court granted the agency permanent custody of the children, finding that the parents had failed to remedy the problems *Page 6 that caused the initial removal of the children and that it would not be in the best interest of the children to return to their parents.2 II {¶ 7} The father's sole assignment of error is that the court abused its discretion by finding that his three children, W.B., C.B., and N.B. were abused and neglected. He claims that there was no evidence that any of his children were sexually abused, nor were there any allegations in the complaint that support a finding that he abused or neglected them. A {¶ 8} Hearings involving the termination of parental rights are bifurcated into separate adjudicatory and dispositional phases. See R.C.2151.35, Juv.R. 29 and 34. In the adjudicatory phase, the court determines whether a child is "abused, neglected or dependent * * *." See R.C. 2151.35(B)(1). The trial court must determine whether the children were neglected or dependent as of the date or dates alleged in the complaint, not whether the children were neglected or dependent as of the date of the adjudicatory hearing. R.C. 2151.23(A)(1). {¶ 9} R.C. 2151.031 does not require a finding of "fault" by either parent during the adjudicatory stage. In In re Pitts (1987),38 Ohio App. 3d 1, 5, the court stated: *Page 7 {¶ 10} "[R.C. 2151.031] makes no reference to parental fault. All that is necessary is that the child be a victim, regardless of who is responsible for the abuse. The focus is upon harm to the child, not upon parental or custodial blame-worthiness. It has been argued that such a focus will enhance family autonomy. See Areen, Intervention Between Parent and Child: A Reappraisal of the State's Role in Child Neglect and Abuse Cases (1975), 63 Geo. L.J. 887, 917-920." {¶ 11} Determinations made during the adjudicatory phase must be supported by clear and convincing evidence. R.C. 2151.35(A). "Clear and convincing" evidence is that which produces "in the mind of the trier of facts 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. As with other questions of evidence, we cannot reverse a factual determination if it is supported by competent, credible evidence. In re S. (1995),102 Ohio App. 3d 338, 344-345. B {¶ 12} As applicable to this appeal, R.C. 2151.031 defines an "abused child" to include any child who: {¶ 13} "(A) Is the victim of `sexual activity' as defined under Chapter 2907 of the Revised Code, where such activity would constitute an offense under that chapter, except that the court need not find that any person has been convicted of the offense in order to find that the child is an abused child; *Page 8 {¶ 14} "(B) Is endangered as defined in section 2919.22 of the Revised Code, except that the court need not find that any person has been convicted under that section in order to find that the child is an abused child; * * *." 1 {¶ 15} The social worker did not name or mention W.B. or C.B. in her testimony. There is no evidence of any kind to show that these two children were the victims of sexual activity. {¶ 16} The agency offered some testimony regarding N.B. and sexual activity, but it did not rise to the level of clear and convincing evidence to support the court's finding that N.B. had been abused. During questioning about circumstances that occurred after the mother moved the children in with her sister, the intake worker was asked "did sex abuse come to your attention, any incident of sex abuse, after the children came to Cleveland [to live with the mother's sister] * * *?" The intake worker answered, "[t]here was an incident between Mom and the youngest child, [N.B.]." The questioning on this point ended after this answer. We conclude that this testimony does not rise to the level of clear and convincing evidence that N.B. had been sexually abused for purposes of R.C. 2151.031(A). This testimony was vague and offered no specifics of any kind from which the court could have found that N.B. had been sexually abused. {¶ 17} In another part of her testimony, the intake worker again mentioned N.B. by name when referencing a conversation she had with N.B. However, when the *Page 9 intake worker started to relate the substance of her conversation with N.B., the court sustained an objection on hearsay grounds. The agency then shifted the topic of examination and the intake worker did not mention N.B.'s name. Again, we conclude that this brief mention of N.B.'s name, without any specific reference to acts of sexual activity could not constitute clear and convincing evidence of abuse. 2 {¶ 18} We do conclude, however, that the agency presented clear and convincing evidence to show that the children were placed at a substantial risk of harm such that the parents would have endangered the children under R.C. 2151.031(B). Endangering children is defined in R.C.2919.22(A), which states that no parent "shall create a substantial risk to the health or safety of the child by violating a duty of care, protection, or support." The term "substantial risk" is defined by R.C.2901.01(A)(8) as "a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist." {¶ 19} When a parent knows that a child is being sexually assaulted by another member of the household, but fails to remove either the child or the perpetrator from the household, that parent has created a substantial risk to the safety of the child. See State v. Wardlow (1985), 20 Ohio App. 3d 1, 3-4. The parents knowingly permitted a sexual abuser to remain in the household, even though he had abused their children with devasting effect to the family unit. This fact alone could justify a *Page 10 finding that there was a strong possibility that these three children would also be sexually assaulted. {¶ 20} The father's role in causing the problem was undisputed. Testimony showed he not only knew the abuse had occurred, but when he "threw" the mother and children out of the house, they had no other option but to go to the mother's sister's house, where the abusive cousin lived. The father's actions demonstrated a callous disregard for the health and safety of the children. C {¶ 21} As applicable to this appeal, R.C. 2151.03(A)(2) defines "neglected child" as any child as one "who lacks adequate parental care because of the faults or habits of the child's parents * * *[.]" {¶ 22} Although the agency presented no evidence to show that the three children at issue were sexually abused, it did present evidence to show that other members of the household were sexually abused by the cousin and that the parents knew about it but did nothing to stop it. Despite knowing that the cousin had abused her children, the mother moved her children into a residence in which the cousin also resided. The court heard testimony that the father had been home when the abuse occurred. Finally, testimony showed that the mother told the father not to report the abuse to the police in order to prevent the agency's intervention. {¶ 23} A parent who not only actively fails to report acts of sexual abuse committed against her children by a known perpetrator, but then voluntarily moves *Page 11 her children into a residence in which that perpetrator lives, creates a substantial risk to the health and safety of the children and violates a duty of care and protection for those children. This duty extended to the three children at issue even though the agency offered no evidence at the hearing to show that they were sexually abused. The cousin posed a risk to all of the children in the household. His prior actions poisoned the home environment for all the children. The mother's refusal to deal with the problem constituted clear and convincing evidence of neglect. See, e.g., In re Marshall (Oct. 22, 1987), Putnam App. No. 12-85-8; In re Gail (C.P. 1967), 12 Ohio Misc. 251, 253. The father was equally culpable as he likewise knew the abuse had occurred and not only failed to stop or prevent it, he threw his own children out of their house and gave them no choice but to move in with their abuser. {¶ 24} We conclude that the court did not err by finding that W.B., C.B., and N.B. were neglected. The assignment of 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 Cuyahoga County Court of Common Pleas — Juvenile Court Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. *Page 12 COLLEEN CONWAY COONEY, P.J., and MARY EILEEN KILBANE, J., CONCUR. 1 The agency argues that this appeal is not properly before us because the father's notice of appeal contains only the dispositional order granting permanent custody of the children to the agency, not the adjudicatory order which found the children neglected. The agency has shown no prejudice from the father's failure to attach the journal entry relating to the neglect adjudication, so we exercise our discretion to hear this appeal. See In re A.C., 160 Ohio App. 3d 457, 2005-Ohio-1742, at ¶ 17-21. But see In re K.M., Butler App. No. CA2004-02-052, 2004-Ohio-4152 (having failed to timely appeal from the dependency adjudication which resulted in a grant of temporary custody, an appellant cannot raise on appeal the issue of the dependency adjudication). 2 The mother has not appealed from either the adjudicatory or dispositional rulings. *Page 1

2022-09-09 23:54:31.901645+00

Reilly

¶ 1. REILLY, RJ. This case addresses whether a beneficiary designation on a "P.O.D. account" under Wis. Stat. ch. 705 (2015-16)1 may be controlled by a writing separate from the contract of deposit between a depositor and his or her financial institution. Todd Mueller alleges that a handwritten note made by Robert Zernzach (depositor) sometime after Zernzach had entered into a P.O.D. account with US Bank (financial institution) resulted in Mueller being the sole beneficiary upon Zernzach's death. We affirm the circuit court's finding that the beneficiaries stated in the records of the bank were the lawful owners of the proceeds as Zernzach and US Bank never amended the P.O.D. account to change the beneficiary to Mueller. BACKGROUND ¶ 2. On November 18, 2013, Zernzach and US Bank created a P.O.D. account in which Zernzach deposited $200,000 into a certificate of deposit (CD) naming Martina Welke and Thomas Edwards as P.O.D. beneficiaries. Upon opening a P.O.D. account, a depositor designates the beneficiary(ies) who the bank is directed to pay the proceeds to upon the death of the depositor. "Prior to the depositor's death, the depositor maintains control over the principal and income of the accounts and can change the P.O.D. recipient at any time." Estate of Sheppard v. Schleis, 2010 WI 32, ¶ 24, 324 Wis. 2d 41, 782 N.W.2d 85; see also Wis. Stat. § 705.03(2). Zernzach designated Welke and Edwards as the P.O.D. beneficiaries on the account via a signature card held by US Bank. Zernzach and US Bank never changed the beneficiary designation.2 Zernzach died unexpectedly on June 21, 2015. ¶ 3. Mueller, a neighbor and friend of Zernzach, claims that on March 6, 2015, Zernzach changed the beneficiary designation on the account by naming Mueller as sole beneficiary in a handwritten note (Exhibit 8) that Mueller found in Zernzach's safe after Zernzach's death. Exhibit 8 lists seven financial institutions with the type of account, amount of the account, and the purported beneficiary of the account. Six of the seven accounts list Mueller as the beneficiary. The document indicates that "[t]hese are all P.O.D. accounts" and "[t]hese accounts are recorded on all the P.O.D. documents at the banks and credit unions." Zernzach never filed or provided Exhibit 8 to US Bank during his lifetime.3 ¶ 4. The circuit court, following a trial, found that Welke and Edwards were the owners of the proceeds from the P.O.D. account. Mueller appeals. DISCUSSION ¶ 5. The sole issue is whether Exhibit 8 operated to change the beneficiary designation on Zernzach's P.O.D. account at US Bank. This issue presents a question of statutory interpretation. Statutory interpretation is a question of law, which we review de novo. Seider v. O'Connell, 2000 WI 76, ¶ 26, 236 Wis. 2d 211, 612 N.W.2d 659. "Statutory language is given its common, ordinary, and accepted meaning," but context and structure of the surrounding language are also important considerations "to avoid absurd or unreasonable results." State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶¶ 45-46, 271 Wis. 2d 633, 681 N.W.2d 110. f 6. Mueller argues Exhibit 8 is a valid P.O.D. beneficiary designation as it meets the requirements under Wis. Stat. §§ 705.01(9) and 705.10, even though "it is surprising and unconventional." We disagree. ¶ 7. Wisconsin Stat. ch. 705 details the procedures required to create a "P.O.D. account." Wisconsin Stat. § 705.01(1) defines an account as "a contract of deposit of funds between a depositor and a financial institution" and expressly includes a certificate of deposit. A P.O.D. account is an account "where the relationship is established by the form of the account and the deposit agreement with the financial institution." Sec. 705.01(8). A P.O.D. beneficiary is "a person designated on a P.O.D. account as one to whom all or part of the account is payable on request after the death of one or more parties." Sec. 705.01(9). ¶ 8. Applying the plain meaning of the language utilized by the legislature in Wis. Stat. § 705.01, we conclude that a P.O.D. beneficiary designation is a contract made between a "financial institution" and a "depositor" in which the depositor and financial institution agree that a P.O.D. beneficiary is "a person designated on a P.O.D. account." See § 705.01(8), (9) (emphasis added); see also Wis. Stat. § 705.02 (describing the procedure necessary to create multiple-party accounts). A P.O.D. beneficiary must be named in the account records of the financial institution such that the financial institution can adhere to its contract to pay the depositor's funds to the beneficiary as it was directed upon the depositor's death. A separate writing not filed by a depositor with a financial institution is ineffective to alter a P.O.D. beneficiary designation under Wis. Stat. ch. 705. ¶ 9. The plain language of Wis. Stat. § 705.01(8) and (9) is also supported by Wis. Stat. § 705.04(2)(a) and (b), which requires that "all sums remaining on deposit" are to be paid "in accordance with any written instructions that the owner filed with the financial institution." (Emphasis added.) Section 705.04(3) also provides that "a right of survivorship arising from the express terms of the account or under this section, or a P.O.D. beneficiary designation, cannot be changed by will." And finally, Wis. Stat. § 705.08 mandates that subchapter one of Wis. Stat. ch. 705 is to be "construed in such a manner as to ensure reasonable certainty of legal result for those who establish a multiple-party or agency account." ¶ 10. Mueller argues that Zernzach's separate writing (Exhibit 8) is legally enforceable as Wis. Stat. §705.10 "specifically enforces beneficiary designations that are made 'in a separate writing' from the account agreement." We disagree. Section 705.10(1) is in sub-chapter two of Wis. Stat. ch. 705, whereas P.O.D. accounts are expressly addressed in subchapter one of ch. 705. Subchapter two of ch. 705 addresses "nonpro-bate transfers on death" in instruments such as "an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, . . . [or] marital property agreement, or other written instrument of a similar nature." Compare Wis. Stat. §§705.01, 705.02, 705.03, & 705.04, with §705.10. Under § 705.10(l)(a), "[m]oney or other benefits due, controlled by or owned by a decedent before death must be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will executed either before or at the same time as the instrument, or later." ¶ 11. It is a long-standing rule of statutory construction that if two or more statutes are in conflict, the more specific statute controls over the general statute. State ex rel. Hensley v. Endicott, 2001 WI 105, ¶¶ 19-21, 245 Wis. 2d 607, 629 N.W.2d 686. Wisconsin Stat. § 705.10 does not reference P.O.D. accounts, whereas Wis. Stat. §§ 705.01, 705.02, 705.03, and 705.04 all are specific as to P.O.D. accounts. Section 705.04(3) expressly provides that a P.O.D. beneficiary designation cannot be changed by a will. A will is a "separate writing," yet by statute it may not change a beneficiary designation in a P.O.D. account. If a will, with all of its procedural requirements to ensure authenticity, is ineffective to change a beneficiary designation in a P.O.D. account, then likewise a handwritten note may not change a P.O.D. beneficiary designation. CONCLUSION ¶ 12. Zernzach contracted with US Bank to pay the proceeds in the P.O.D. account to Welke and Edwards upon his death. Zernzach never changed the beneficiary designation with US Bank prior to his death. Exhibit 8, a separate writing unknown to the bank, did not affect the P.O.D. contract between Zern-zach and US Bank. By the Court.—Order affirmed. All references to the Wisconsin Statutes are to the 2015—16 version unless otherwise noted. A representative from US Bank testified that in order to change a P.O.D. beneficiary designation with the bank the depositor must sign a signature card appointing and naming the new beneficiary. Zernzach was familiar with the process as on the same day he opened the US Bank CD, Zernzach also changed the beneficiaries on his existing US Bank checking account by signing a form entitled "Remove POD Addendum" to remove his cousins Lance and Michael Zernzach as beneficiaries and a signature card designating Welke and Edwards as the new P.O.D. beneficiaries. On March 7, 2015, Zernzach completed a signature card at US Bank amending the P.O.D. beneficiary designation from Welke and Edwards to Mueller on the US Bank checking account, but he did not change the beneficiary designation on the $200,000 certificate of deposit P.O.D. account.

2016-07-06 06:36:52.47889+00

Reece

Appellants, Amanda, Michelle and Jim Ratliff, appeal the Lorain County Court of Common Pleas' grant of summary judgment in favor of appellee, Oberlin City Schools. We affirm. Amanda Ratliff, an elementary school student in the Oberlin City School System ("Oberlin"), attends Eastwood Elementary School. On June 7, 1993, Amanda climbed the monkey bars on the school playground during her recess break. Mulch covered the ground underneath the monkey bars. Moreover, a light mist fell during recess and rain had fallen the previous night. While playing, Amanda fell and broke her arm. Amanda, through her parents Michelle and Jim, sued Oberlin for damages. Oberlin moved the trial court for summary judgment. Oberlin argued that it did not act negligently and that it could not incur liability based on its governmental immunity. Oberlin relied on the affidavit of Ralph Ballard, the principal of Eastwood at the time of the accident. Ballard stated that "[i]t was a common procedure to permit students to use the playground equipment when it was wet. I permitted them to do so because, in my opinion, it was safe. I had not experienced any prior injuries due to wet or slippery playground equipment." Furthermore, Ballard stated that "[s]tudents do fall from the monkey bars and other playground equipment from time to time; that is why we put mulch under the playground equipment. (The area under the monkey bars was well mulched on the day of Amanda's fall.) We've never had any significant injuries from falls from monkey bars." Amanda responded in opposition to the motion for summary judgment. She relied on the affidavits of her parents as well as Ballard's deposition testimony. Michelle Ratliff stated that "[w]hen I picked Amanda up to take her to the hospital, the side on which she had fallen was covered with mud * * * [t]he area under the monkey bars had some wood chips. In fact, the area directly under *Page 550 the monkey bars had only a thin covering of wood chips; I could see the ground through the wood chips in some areas. It appeared that most of the wood chips had been kicked aside, away from the area underneath the monkey bars, but there was not a lot of wood chips even on the sides of the monkey bars." Jim Ratliff also stated in his affidavit that at the time his daughter fell he visited the site and saw a thin covering of wood chips underneath the monkey bars. Moreover, "I could see dirt through the wood chips." At his deposition, Ballard testified: "A. Well, when I see it, when there's mulch on the ground and that there are no holes or gaps, then I'm assuming that that's sufficient to stop or break a fall, to help soften the impact. "* * * "Q. And the purpose of the mulch is; what is the purpose? "A. To reduce the impact of a drop or fall. To help let water seep through so the surface isn't — there aren't puddles." The trial court granted summary judgment in favor of Oberlin. On appeal, Amanda raises one assignment of error: the trial court improperly granted summary judgment because a genuine issue of material fact existed as to whether the fill beneath the monkey bars was adequate and whether Oberlin acted recklessly. In reviewing a trial court's grant of summary judgment pursuant to Civ.R. 56(C), an appellate court applies the same standard as the trial court: whether any genuine issues of material fact existed and whether the moving party was entitled to judgment as a matter of law. Parenti v. Goodyear Tire Rubber Co. (1990), 66 Ohio App. 3d 826, 829, 586 N.E.2d 1121,1122-1123. In a negligence cause of action, it is fundamental that the plaintiff must establish the existence of a duty, a breach of that duty, and an injury that is the proximate result of that breach. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75,77, 15 OBR 179, 180-181, 472 N.E.2d 707, 710. According to this court, "[t]here is no general duty upon school officials to watch over each child at all times." Redd v.Springfield Twp. School Dist. (1993), 91 Ohio App. 3d 88, 91,631 N.E.2d 1076, 1078. Absent the assumption of a more specific obligation, school officials are bound only by the common-law duty to exercise that care necessary to avoid reasonably foreseeable injuries. Id. at 91-92, 631 N.E.2d at 1078-1079. Therefore, for purposes of successfully responding to Oberlin's motion for summary judgment, Amanda had to raise a genuine issue of material fact establishing the elements of her cause of action. See id.; Anderson v. Liberty Lobby, Inc. (1986),477 U.S. 242, 247-253, 106 S. Ct. 2505, 2509-2512, 91 L. Ed. 2d 202,211-214. *Page 551 In this case, we determine that Amanda did not raise any genuine issue of material fact concerning Oberlin's negligence. The central issue is whether Oberlin took reasonable care to avoid injury on the monkey bars. The statements made by her parents in their affidavits provide the prime support for her position. In sum, both parents stated that based on their observations, Oberlin did not provide adequate mulch to guard against injury. This evidence, however, was not sufficient to overcome the motion for summary judgment. Significantly, neither parent had witnessed the accident and, therefore, neither could know how the mulch was laid before Amanda fell. Furthermore, Amanda presented no evidence as to what constituted reasonable protection from injury. Ballard stated in his deposition that he believed the mulch adequately protected against injury based on his experience as an educator. Amanda did not rebut his assertion with evidence indicating that Oberlin fell below its standard of care. Therefore, Amanda failed to meet her burden in response to the motion for summary judgment. Anderson, supra, 477 U.S. at 247-253,106 S.Ct. at 2509-2512, 91 L.Ed.2d at 211-214. Because no genuine issue of material fact existed as to absence of Oberlin's negligence, we need not address the issue of Oberlin's recklessness and its defense of governmental immunity. Accordingly, appellant's assignment of error is overruled, and the judgment of the trial court is affirmed. Judgment accordingly. DICKINSON, J., concurs. BAIRD, P.J., concurs in judgment only.

2016-07-06 06:36:52.999398+00

Rocco

JOURNAL ENTRY and OPINION Defendant-appellant Richard E. Carley appeals from his convictions after entering guilty pleas to two counts of aggravated murder with mass murder and felony murder specifications. Appellant challenges the acceptance by the trial court three-judge panel of his guilty pleas for the panel's failure to comply with several of the requirements set forth in R.C. 2945.06. Appellant further argues his pleas were not knowingly, voluntarily and intelligently made, contending both that the trial court panel's compliance with Crim.R. 11(C) was inadequate and that his trial counsel rendered ineffective assistance. After an examination of the record, this court is compelled to sustain appellant's challenge to the acceptance of his guilty pleas by the three-judge panel, not precisely on the basis of appellant's arguments but, rather, on the basis that the panel lacked subject matter jurisdiction to do so. Appellant's convictions, therefore, must be reversed. Appellant originally was indicted in October 1997 on charges related to the September 1997 shooting deaths of two men in Cleveland, Ohio. The indictment alleged six counts against appellant as follows: two counts of aggravated murder, R.C. 2903.01(A) (murder committed with prior calculation and design), both counts containing two firearm specifications, a mass murder specification, and a felony murder specification; two counts of aggravated murder, R.C. 2903.01(B) (felony murder), both counts containing two firearm specifications, a mass murder specification, and a felony murder specification; and two counts of aggravated robbery, R.C. 2911.01, both counts containing two firearm specifications. At his arraignment, appellant entered a plea of not guilty to the charges. His case duly was assigned to a trial judge for further proceedings. Although appellant initially retained counsel to represent him, subsequent to his waiver of his right to a speedy trial,1 appellant's original counsel requested permission to withdraw from the case due to appellant's inability to pay for the representation. The trial court granted that request and, in view of appellant's indigency, appointed new counsel. Thereafter, the prosecutor's efforts to come to a plea agreement with appellant proved futile, in spite of the fact that, after conducting a hearing on his motion to suppress the evidence of his written confession to the murders, the trial court overruled appellant's motion. The trial court, therefore, commenced voirdire of prospective jury members for appellant's trial. *Page 844 The trial court had not yet concluded this process, however, when the prosecutor and the defense attorneys notified the trial court that a plea agreement had been reached. In consequence, the administrative judge of the Cuyahoga County Common Pleas Court issued an order2 pursuant to R.C. 2956.0633 appointing the trial judge and two other judges of the court "to serve on a 3 judge panel" to consider appellant's plea. The trial court panel thereupon assembled. Initially, the panel permitted the prosecutor to present the substance of the plea agreement. The prosecutor indicated appellant would enter pleas of guilty to only the felony murder counts. The prosecutor further stated that although the capital murder specifications would remain in the indictment, the agreed penalty would not be death but, rather, a sentence of concurrent terms of "30 full years to life" imprisonment on the two charges. The panel proceeded to conduct a colloquy with appellant pursuant to Crim.R. 11(C), requested his plea to the charges, which was "guilty," then heard the prosecutor's "presentation of evidence." The prosecutor's evidence consisted of the following; (1) the coroner's autopsy reports relating to the two shooting victims; (2) appellant's written confession via the testimony of one of the investigating police detectives; together with (3) the detective's testimony that (a) the pager of one of the victims indicated appellant had contacted the victim three times on the day of the shootings and (b) a search of appellant's home pursuant to a warrant led to the discovery of drugs, which corroborated appellant's confession.4 *Page 845 Thereafter, the panel made a "finding of guilt" and accepted appellant's "plea of guilt to both offenses of aggravated murder with [capital] specifications under the third and fourth counts of the indictment." The panel dismissed the remaining charges and specifications. The panel then accepted the parties' "stipulation" that the "aggravating specifications contained within the body of each counts (sic) of the indictment relating to mass murder and felony murder do not outweigh by evidence beyond a reasonable doubt claimed factors in mitigation." Subsequently, the panel sentenced appellant to concurrent terms of life imprisonment without possibility of parole for thirty years. Only two months later, in April 1998, appellant, acting prose, filed a motion to withdraw his pleas. The judge originally assigned to appellant's case issued an order denying appellant's motion. In September 1998, appellant filed a petition for postconviction relief. One month later, the same originally-assigned trial court judge denied appellant's petition. The judge's order further essentially advised appellant to file a direct appeal of his convictions. Appellant's first attempt to follow the trial judge's advice was dismissed as untimely pursuant to App.R. 4(A). Subsequently, this court granted appellant's request to file a delayed appeal of his convictions. Appellant presents five assignments of error for review in this appeal.5 Nevertheless, this court need not directly address them since the record demonstrates the trial court panel lacked subject matter jurisdiction in this case. The Ohio Supreme Court has "consistently required strict compliance with Ohio statutes when reviewing the procedures used [by the trial court] in capital cases." State v. Filiaggi (1999),86 Ohio St. 3d 230 at 240; see, also, State v. Green (1998),81 Ohio St. 3d 100 at 103. Moreover, the trial court's strict compliance with the requirements of both R.C. 2945.05 and R.C. 2945.06 is a "jurisdictional matter" that "cannot be waived." Filiaggi at 239;State v. Pless (1996), 74 Ohio St. 3d 333, syllabus 1. The trial court panel in this case proceeded to consider appellant's decision to enter into a plea agreement pursuant to R.C. 2945.06. With regard to this statute, the supreme court has most recently observed as follows: R.C. 2945.06 does not require an examination of witnesses, determination of guilt, and pronouncement of sentence by a three-judge court if the accused *Page 846 is not charged with an offense punishable by death. Ullman v. Seiter (1985), 18 Ohio St. 3d 59, 18 OBR 92, 479 N.E.2d 875. In this regard, R.C. 2945.06 must be construed in pari materia with Crim.R. 11(C). State v. Green (1998), 81 Ohio St. 3d 100, 104, 689 N.E.2d 556, 559. At the time [the defendant] pled guilty, his indictment had been amended to delete any death-penalty specification. Therefore, neither R.C. 2945.06 nor Crim.R. 11(C) required an examination and determination by a three-judge panel because [the defendant] was no longer charged with an offense punishable by death at the time he entered his guilty plea. (Citation omitted.) State ex rel. Henry v. McMonagle (2000), 87 Ohio St. 3d 543 at 544-545. (Emphasis added.) In contrast to Henry, however, at the time appellant entered his pleas in this case, both counts still contained death penalty specifications. Indeed, the prosecutor took pains to place this fact on the record. Notably absent from the record in this case is any indication appellant waived his right to a jury trial, pursuant to R.C. 2945.05, prior to the appointment of the three-judge panel. The supreme court in Henry was construing the fourth sentence of R.C. 2945.06. However, the first sentence of that statute limits its applicability to those cases in which a defendant has waived his right to a trial by jury in accordance with R.C.2945.05. State v. McCoy (1969), 26 Ohio App. 2d 62, headnote 1;State ex rel. Henry v. McMonagle (June 3, 1999), Cuyahoga App. No. 75464, unreported at 5; cf., State ex rel. Novak v. Eckle (1956), 77 Ohio Law. Abs. 185. The decision in State v. McCoy, supra, was cited by the supreme court in State ex rel. Larkins v. Baker (1995), 73 Ohio St. 3d 658, at footnote 1, to illustrate the proposition that "R.C.2945.05 and R.C. 2945.06 must be read in context and * * * regulate not only the procedure, but also the jurisdiction of the trial court." Id. at 660. (Emphasis added.) Subsequently, in Pless, the application of Larkins was limited to require only that, in order to remedy a trial court's "failure to comply with the requirements of R.C. 2945.05," a defendant must file a direct appeal. Appellant's delayed appeal of his convictions has met that requirement in this case. Moreover, the issue of a trial court's jurisdiction is one that may be raised at any time. A review of the relevant case law fails to provide another single instance of a trial court panel assuming jurisdiction of a capital case in the absence of a written waiver by the defendant of his right to a jury trial. State v. Pless, supra; State v. Filiaggi, supra; State v.Green, supra; see, also, State v. Staton (Dec. 22, 1997), Butler App. No. CA-97-08-0156, unreported. Cf., State ex rel. Henry v.McMonagle, supra; State v. Perkins (June 22, *Page 847 2000), Cuyahoga App. No. 76321, unreported; State v. Shakoor (Dec. 13, 1996), Trumbull App. No. 93-T-4917, unreported. Appellant signed no waiver of his right to a jury trial in this case as required by R.C. 2945.05 and R.C. 2945.06. Without strict compliance with the requirements of R.C. 2945.05 and R.C.2945.06, the trial court panel lacked jurisdiction to consider appellant's plea to the capital offenses with which he was charged. Appellant's convictions, therefore, must be reversed. This case is remanded for further proceedings consistent with this court's opinion. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, A.J. and DIANE KARPINSKI, J. CONCUR ________________________ JUDGE, KENNETH A. ROCCO 1 The signed waiver form is contained in the record on appeal. 2 The order was dated February 24, 1998 and filed for journalization on March 23, 1998. Since the record reflects plea agreement was not reached until the afternoon of February 25, 1998, it may be assumed the order was misdated. 3 R.C. 2945.06 states in pertinent part: § 2945.06 Jurisdiction of judge when jury trial is waived; three-judge court. In any case in which a defendant waives his right to trial by jury and elects to be tried by the court under section 2945.05 of the Revised Code, any judge of the court in which the cause is pending shall proceed to hear, try, and determine the cause in accordance with the rules and in like manner as if the cause were being tried before a jury. If the accused is charged with an offense punishable with death, he shall be tried by a court to be composed of three judges, consisting of the judge presiding at the time in the trial of criminal cases and two other judges to be designated by the presiding judge or chief justice of that court, * * * If the accused pleads guilty of (sic) aggravated murder, a court composed of three judges shall examine the witnesses, determine whether the accused is guilty of aggravated murder or any other offense, and pronounce sentence accordingly. The court shall follow the procedures contained in sections 2929.03 and 2929.04 of the Revised Code in all cases in which the accused is charged with an offense punishable by death. * * * (Emphasis added.) 4 The detective also testified at the hearing on appellant's motion to suppress evidence that one of appellant's fingerprints was present in the vehicle in which the dead victims were found. 5 Appellant's assignments of error are attached as an Appendix to this Opinion. APPENDIX ASSIGNMENT OF ERROR NO. 1 THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT'S GUILTY PLEA WITHOUT EXAMINING THE WITNESSES, DETERMINING WHETHER THE ACCUSED IS GUILTY OF AGGRAVATED MURDER OR ANY OTHER OFFENCE (SIC) BEFORE PRONOUNCING SENTENCE IN VIOLATION OF OHIO REVISED CODE SECTION 2945.06 AND APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR NO. 2 THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY JOURNALIZE A FINDING OF GUILTY WITH REGARD TO APPELLANT'S CONVICTION IN VIOLATION OF OHIO REVISED CODE SECTION 2924.06 AND OHIO RULE OF CRIMINAL PROCEDURE 11, THEREBY RESULTING IN AN INVALID CONVICTION AND A VIOLATION OF APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR NO. 3 THE APPELLANT'S GUILTY PLEA WAS INVALID AND HIS DUE PROCESS RIGHTS WERE VIOLATED WHERE THE TRIAL COURT FAILED TO REQUIRE THE APPELLANT TO SEPARATELY PLEAD GUILTY TO THE SPECIFICATIONS IN HIS INDICTMENT IN VIOLATION OF HIS FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. *Page 848 ASSIGNMENT OF ERROR NO. 4 THE APPELLANT'S GUILTY PLEA WAS INVALID AND HIS DUE PROCESS RIGHTS WERE VIOLATED WHERE THE TRIAL COURT FAILED TO FULLY INFORM THE APPELLANT OF AND DETERMINE THAT THE APPELLANT UNDERSTOOD THE EFFECT OF THE PLEAS OF GUILTY IN VIOLATION OF HIS FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR NO. 5 THE APPELLANT'S GUILTY PLEA WAS INVALID AND UNKNOWINGLY MADE WHERE HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BEFORE, AND DURING HIS PLEA PROCEEDINGS[,] IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE OHIO AND UNITED STATES CONSTITUTIONS.

2016-07-06 06:36:53.147708+00

Pakdee

The parties stand in this court in the same relative position as in the court below. The plaintiff, Frank Abraham, brought an action at law against the defendant, the Akron Sausage Company, a domestic corporation, to recover a sum of money for rent claimed to be due under an alleged contract made between the parties on or about the 22d day of November, 1919. The defendant filed an answer denying liability. The case came on for hearing, and both parties in open court waived a trial by jury and consented that the issues be tried to and decided by the court. The court thereupon heard the evidence and found that there was due the plaintiff the sum of $180. The plaintiff, not being satisfied with the amount of the judgment, prosecuted error to this court. The bill of exceptions shows that on the 29th of September, 1919, the plaintiff leased to the Akron Sausage Company, a partnership, a certain piece of real estate for a period of five years, at an annual rental of $720, payable in monthly installments of $60. This lease was in writing, signed by both parties, attested by two witnesses and acknowledged before a notary public. The record also shows that on the 22d day of November, 1919, the plaintiff leased to the defendant, the Akron Sausage Company, a corporation, a part *Page 287 of a building adjacent to the property leased to said partnership. This lease was in writing, signed by both parties, attested by two witnesses and acknowledged before a notary public. This company was incorporated in the early part of October, 1919, and it was promoted by the same persons who composed the partnership of the same name. The record further shows that a short time after the incorporation of said company, the partnership orally assigned its lease to said company, and the company went into the possession of the demised property and paid the rent stipulated in the lease until it abandoned possession of the property in October, 1923. At the same time it also abandoned the possession of the property leased directly to it. The defendant also paid the rent stipulated in both leases for the succeeding month of November, but refused to pay any more, although at the time suit was filed the term of neither lease had expired, the company claiming that, having abandoned said property, it was released from further liability. It is not claimed that plaintiff consented to the abandonment of the property held under either lease, or that the partnership lease was reassigned by said corporation to another. The trial court held that the corporation was liable to the plaintiff only for the rent due under the lease made directly to it, from the date of the last payment to the time the suit was filed in the court of common pleas — being six months at $30 per month. This conclusion was partially right, as there was an express contract by the defendant under a properly *Page 288 executed written lease to pay rent for the full term of the lease of five years. Sutliff v. Atwood, 15 Ohio St. 186; Lodge v.White, 30 Ohio St. 569, 27 Am. Rep., 492; Taylor v. De Bus,31 Ohio St. 468. The defendant in its answer did not set up the statute of frauds as a defense, but claimed in the trial court, and in this court, that it is not liable under the first lease because the assignment to it was not in writing. By the statute of frauds, Section 8620, General Code, an assignment of a lease is required to be in writing and signed by the party so assigning or granting it, and it is also provided in another section, Section 8621, General Code, that no action shall be brought whereby to charge a defendant upon a contract for a sale of lands, tenements, or hereditaments, or an interest in or concerning them, unless the agreement is in writing and signed by the party to be charged. It is admitted in this case that the assignment of the lease was not signed by the lessee, and that defendant did not assume any of the obligations of the assigned lease by a promise in writing. It has generally been held in equity that part performance of a contract for the sale of lands, in cases where the vendee takes possession of the land under the contract, is sufficient to take the case out of the statute of frauds. "But it is equally well settled that to have that effect the possession must be connected with and in consequence of the contract; it must be in pursuance to its terms and in part execution of them. In other words, the possession must pursue and substantiate *Page 289 the contract." Myers v. Croswell, 45 Ohio St. 543, at page 547,15 N.E. 866, 868. So, do the oral assignment of the partnership lease to the corporation, the occupation of the leased property by said corporation, and payment of rent to the lessor by said corporation, take the contract out of the statute of frauds in an action at law? At an early date in the jurisprudence of this state it was held, in an action at law for the recovery of rent under an oral lease for a year, that part performance took the case out of the statutes of fraud, the Supreme Court in the case of Moore v.Beasley, 3 Ohio, 294, at page 296, saying: "The second error relied on, depends on the construction of the statute for the prevention of frauds and perjuries. This court has decided, as often as the question has been made, that part performance may take a case out of that statute, and that delivery of possession, on a parol lease, is sufficient for that purpose. "There was, in this case, not only a delivery of possession to Moore, but an enjoyment by him of everything for which he contracted. On the part of Beasley, the contract was fully performed; it does not, therefore, come within the design of the act. "The case of Wilber v. Paine, 1 Ohio, 252, may be considered as settling this point." And it was later held, in another action at law for the recovery of rent, in the case of Grant v. Ramsey, 7 Ohio St. 158, that: "A parol lease of lands for more than one year, but less than three, will, by the taking possession under it, and the payment of rent according to its terms, be withdrawn wholly from the operation of the statute of frauds." *Page 290 These cases and the principles of law announced therein are authority for the statement that, as between the lessor and lessee of a piece of property, delivered into the possession of the lessee under an oral lease, and payment of rent therefor, in cases where the term is not more than three years, the case is taken out of the statute of frauds in an action at law for rent between the lessor and lessee. In this state leases for more than three years are by another statute, Section 8510, General Code, required to be in writing, signed by the lessor, attested by two witnesses, and acknowledged before a notary public or other officer named therein. It has therefore been decided by the Supreme Court in the case ofBaltimore Ohio Railroad Co. v. West, 57 Ohio St. 161,49 N.E. 344, in reference to a lease for five years, which was defectively executed: "1. An entry under a lease for a term of years at an annual rent, void for any cause, and payment of rent under it, creates a tenancy from year to year upon the terms of the lease, except as to its duration." It was also held in the case of Richardson v. Bates, 8 Ohio St. 257, at page 264, that in an action at law a landlord could not recover for rent after the lessee abandoned the premises, when the right to recover was predicated solely upon a defectively executed lease for a term of five years. The facts in the foregoing case show that the lessee was in possession of the demised premises at the time of the execution of the lease relied upon, and "that the plaintiff, by his petition, predicated his right to recover solely upon the indenture set forth in his petition. He did not aver a part performance, and ask to have the instrument reformed, and then enforced. Nor does the *Page 291 petition state a delivery of possession by the plaintiff, or an occupancy by the defendants; but the right of action is placed solely upon the obligations imposed upon defendants by the instrument set forth." But we think it is equally well settled that an oral assignment of a written lease for less than three years, and an oral assignment of an oral lease for less than three years, are equally good and binding where the assignees of these kinds of leases enter into the possession of the property under the lease, and pay the rental specified therein. The case of Sutliff v. Atwood, 15 Ohio St. 186, was a written lease for a term of three years, where the lessee made an oral assignment to another, and the assignment was held good in an action at law. The case of Lodge v. White, 30 Ohio St. 569, 27 Am. Rep., 492, was an oral lease where the lessee entered the possession of the demised property under a contract for a year, and held over from year to year, and during the last year orally assigned the lease to another, and the court there held the assignment good in an action at law. These cases, then, are authority for the proposition that an oral assignment of either an oral or written lease for a term not exceeding three years is good, where the assignee takes possession of the leased premises and pays the rent stipulated in the lease. But said Section 8510 of the Code relates only to the execution of a lease, in the first instance, and does not expressly or by implication relate to the assignment of a lease, or provide a method by which it shall be done. So, the only section of the Ohio *Page 292 Code which applies to an assignment of a lease is the statute of frauds, Section 8620. In his opinion in the case of Grant v. Ramsey, supra, at page 166, Judge Scott says: "No distinction is made by the terms of the statute, between leases for years, estates for life, or in fee simple; nor between leases for a term not exceeding one year, and those for a longer term. All estates or interests in lands, are placed on the same footing, and it is certain that contracts for the absolute sale of lands, in fee simple, are constantly held by our courts to be taken out of the operation of the statute by part performance, and that a change of possession and part payment will constitute a sufficient part performance for this purpose. The clauses of our statute relied upon in this case, are but a reenactment of the English statute upon the same subject, and the courts of that country have always regarded leases, without regard to their duration, as taken out of the statute by part performance. In the Earl of Aylesford's case, 2 Strange, 783, there was a parol agreement for a lease of twenty-one years. The lessee had entered and enjoyed for a part of the term, and then the earl brought a bill to oblige him to execute a counterpart for the residue of the term. The lessee pleaded the statute of frauds, which was overruled, the agreement being in part executed. So also under a similar statute in Pennsylvania, in the case of Jones v. Peterman [3 Serg. R., 543, 8 Am. Dec., 672], where the question was, whether part performance of a parol lease for seven years would take the case out of the statute, it was held that it would, where the possession relied on as part performance was directly referable to the lease." *Page 293 We are therefore of the opinion that an oral assignment of a properly executed written lease for a term of more than three years is enforceable in an action at law against the assignee for the recovery of the balance of the rent due, when the assignee takes possession of the demised property under the lease and pays the rent stipulated in the lease for a part of the term. But the defendant claims that, though this may be true, it is relieved from further liability because of having abandoned the demised property. There are two kinds of obligations which are created between a lessor and lessee, to wit, those which arise by the express terms of the contract and those which are implied. The implied relation arises by operation of law, through privity of estate, and not through privity of contract, as it is a covenant running with the land. The implied obligation is discharged when the privity of estate is destroyed, for then the reason for the obligation is taken away and the implied duty terminated. Sutliff v. Atwood, 15 Ohio State, at page 194; Taylor v. De Bus, 31 Ohio State, at page 471. The evidence in this case shows that the defendant abandoned the property and did not attempt to reassign the lease to another with the consent of the lessor. It is generally held that mere abandonment of the leased property will not discharge the assignee from liability, as liability is based on privity of estate and not by occupancy of the property. In this state it has been held that, in a case where the obligation of a tenant to pay rent is implied by law, his assignment of the lease to another must be accompanied *Page 294 by the delivery of possession of the property and the assent of the lessor: "2. But where the obligation of the lessee to pay rent is only that which is implied by law from his occupation of the premises, his assignment of the lease and surrender of possession to the assignee, with the assent of the lessor, extinguishes the privity of estate between the lessor and lessee, and the consequent implied liability of the lessee to pay rent."Lodge v. White, 30 Ohio St. 569, 27 Am. Rep., 492. The foregoing principle is supported by the case of Sutliff v.Atwood, supra. See, also, Ann. Cas., 1916E, 788 (note). Of course, if an assignment of a lease requires the assent of the lessor before the assignee is relieved of liability, it necessarily follows that an abandonment of the leased property without the assent of the lessor will not relieve the assignee of liability. We are therefore unanimously of the opinion that the abandonment of the leased premises by the defendant, without the assent of the landlord, did not relieve it of its implied obligation to pay rent for the remainder of the term of the lease. The defendant claims that there is a variance between the allegations of the plaintiff's petition and the proof, as to the date the assignment of the lease was made, but we do not think this variance is substantial, or material, or that the defendant was prejudiced in any way thereby. For the reasons stated, the judgment of the trial court will be reversed; and, it clearly appearing from the record that the defendant is liable as a matter of law to the plaintiff for six months rent for both parcels of land, at the rate of $90 per month, *Page 295 final judgment may be entered in favor of the plaintiff for $540. Judgment accordingly. WASHBURN and FUNK, JJ., concur.

2016-07-06 06:36:53.262371+00

Grady

Larry A. Semler appeals from his conviction for disorderly conduct in violation of Section 573.03 of the Codified Ordinances of the City of Fairborn. Semler *Page 370 argues that his conviction is not supported by the weight and sufficiency of the evidence. The charge of disorderly conduct was tried to the court. The facts found by the trial court and stated in its decision and judgment entry of conviction are as follows: "Defendant was the passenger in a car driven by James Pierson. While driving the defendant home, Pierson's car was stopped outside defendant's residence in a DUI arrest at approximately 2:00 o'clock a.m., on December 7, 1991. Three police officers in three separate cruisers were present at the scene. As Officer Helman began questioning Pierson, the defendant started to exit the car. When told to stop, the defendant informed Officer Helman he was going into his house and he couldn't stop him. Officer Helman observed that the defendant's eyes were bloodshot; his speech was slurred; he had poor balance and the strong odor of alcohol. Defendant was loud and his demeanor was angry. Officers Helman, Plemmons, and Cockrell observed the defendant and each determined he was extremely intoxicated. After Officer Helman asked him several times for identification, the defendant finally gave his social security number and birth date. The defendant continued to argue and shout about his rights in an abusive, profane, belligerent manner while Officer Helman was trying to interview Mr. Pierson. After ascertaining that defendant lived at that address, Mr. Semler was instructed to go into his house. As he headed toward his house, the defendant kept turning around to argue with the police officers about his rights. Officer Helman instructed him three times to go inside his house; Officer Plemmons told him an additional five or six times; and Officer Cockrell told him three or four times. After reaching his house and shutting the screen door, the defendant came out again, yelling and using profanity. The houses in defendant's neighborhood are close together, with approximately 15 to 20 feet between houses. The lot sizes are 60 feet wide. Plemmons told the defendant he was under arrest. The defendant re-entered the house and locked the storm door. He said, `I dare you to do anything now. I'm in my house.' "After telling him to open the door, Officer Plemmons pushed hard, forcing the door open. Officers Plemmons and Cockrell informed the defendant he was under arrest. The defendant passively resisted when the officers were trying handcuff him, became rigid and pulled away. Officer Helman joined the other officers in forcing Mr. Semler to the ground. He was then handcuffed and taken to the cruiser." Section 573.03(b)(1) of the Fairborn Municipal Code ("Section 573.03[b][1]"), disorderly conduct, is identical to R.C.2917.11(B)(1) and provides: *Page 371 "No person, while voluntarily intoxicated shall do either of the following: "In a public place or in the presence of two or more persons, engage in conduct likely to be offensive or to cause inconvenience, annoyance, or alarm to persons of ordinary sensibilities, which conduct the offender, if he were not intoxicated, should know is likely to have such effect on others[.]" Semler argues that he cannot be convicted of disorderly conduct unless the words he used were, by their very utterance, likely to inflict injury or provoke the average person to an immediate retaliatory breach of the peace. See State v. Hoffman (1979), 57 Ohio St. 2d 129, 11 O.O.3d 298, 387 N.E.2d 239. Semler told the officers, "* * * you f ___ing can't tell me what to do," and "F ___ you, . . . this is bull ___," screaming the words at them. Semler argues that while he used obscene language it was not directed at any officer in particular but only expressed his opinions about what was happening to him. Therefore, it was not likely to incite the average person to retaliate and breach the peace, and was insufficient to support his conviction. Semler's argument and the authorities upon which he relies concern the conduct necessary to violate R.C. 2917.11(A)(2), the section of the disorderly conduct statute that deals with the content or nature of speech, i.e., what is said. Semler was not, however, convicted of violating R.C. 2917.11(A)(2). He was convicted of violating the Fairborn equivalent of R.C.2917.11(B)(1). A violation of that provision occurs anytime a person while intoxicated and in a public place or in the presence of others engages in any conduct which is likely to be offensive or annoying to persons of ordinary sensibilities. A violation of R.C. 2917.11(B)(1) does not necessarily depend on the particular content of the speech involved. There is no dispute that the evidence is sufficient to prove that Semler was intoxicated. Also, while he was outside his house, he was in a public place. The only issue is whether Semler's conduct there was "likely to be offensive or to cause * * * annoyance or alarm to persons of ordinary sensibilities," in violation of Section 573.03(b)(1). If Semler's conviction was based on the content of his speech, it could not stand. No matter how rude, abusive, offensive, or vulgar words may be to another person, one who uses them may not be convicted of a criminal offense for his utterance unless they are "fighting words," that is, words which by their very utterance are likely to inflict injury or to provoke the average person to an immediate, retaliatory breach of the peace. State v. Hoffman, supra. Semler's use of an old English four-letter functional verb in the imperative mood, obnoxious as it was, is not of that character. Perhaps it was once, but it has *Page 372 changed with the times. As a wag has observed, in today's world Hester Prynne would get, at most, a C+. It was Semler's actions, not the content of his speech, that produced his conviction. The trial court found that his loud and angry words, shouted in a residential neighborhood where houses are in close proximity, at 2:00 a.m., violated the ordinance. We agree. The noise and commotion he created were likely to cause annoyance or alarm to persons of ordinary sensibilities who lived nearby and heard them. The same would be true had he shouted the words of "Mary Had a Little Lamb," though his condition and the surrounding circumstances probably inclined him to use more colorful and forceful terms. In addressing claims involving both the weight and sufficiency of the evidence, the weight to be given the evidence, including credibility of witnesses, is a question for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 39 O.O.2d 366, 227 N.E.2d 212. An appellate court abuses its discretion by substituting its judgment for that of the trier of fact as to the weight and sufficiency of the evidence. State v.Nicely (1988), 39 Ohio St. 3d 147, 156, 529 N.E.2d 1236, 1243. The evidence presented in this case, if believed, would permit a rational trier of act to find the essential elements of the crime of disorderly conduct proved beyond a reasonable doubt. The assignment of error is overruled. The judgment of the trial court will be affirmed. Judgment affirmed. BROGAN and FREDERICK N. YOUNG, JJ., concur. *Page 373

2016-07-06 06:36:53.372164+00

Whiteside

Plaintiff appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant Mary Lavonia Secrest (Bartley). In support of his appeal, plaintiff raises five assignments of error, as follows: "1. Failure of the Trial Court to enter a Judgment Notwithstanding the Verdict in favor of the Plaintiff and against the Defendant Secrest (Bartley) in accordance with the Decision of this Court dated March 19, 1974. "2. Failure of the Trial Court to grant a new trial on the nature and extent of Plaintiff's damages in accordance with the Decision of this Court dated March 19, 1974. "3. Error of the Trial Court in allowing the Defendant Secrest (Bartley) to `amend' her responses to her Requests for Admission out of rule. "4. Error of the Trial Court in overruling Plaintiff's Motion for Summary Judgment filed January 15, 1975 and Plaintiff's Cross-Motion for Reconsideration and Summary Judgment filed March 24, 1975. "5. Error of the Trial Court in sustaining Defendant Secrest's (Bartley's) Motion for Reconsideration and entering summary judgment in favor of Defendant Secrest (Bartley)." The first, second, and fourth assignments of error are interrelated and will be considered together. This action was the subject of a prior appeal to this court, reported asSchmelzer v. Farrar (1974), 40 Ohio App. 2d 440, which indicates that the Supreme Court overruled a motion to certify on September 20, 1974. Upon the prior appeal, this court reversed a judgment in favor of defendant Secrest, sustaining six of the assignments of error asserted therein by plaintiff. The syllabus upon the prior appeal states: "Where, in discovery proceedings conducted pursuant to Civ. R. 36(A) and (B), a party denies a matter in part, to the extent that there is no answer, there is an admission, and the matter is conclusively established." Upon the prior appeal, this court expressly found that the trial court erred in overruling plaintiff's motion for a directed verdict against defendant Secrest and in overruling *Page 212 plaintiff's motion for a judgment notwithstanding the verdict as to the liability of defendant Secrest. This court further expressly found that the trial court erred to the prejudice of plaintiff in its charge upon the issue of damages. Accordingly, it was the clear mandate of this court that, upon remand to it, the trial court should sustain plaintiff's motion for judgment notwithstanding the verdict as to the issue of the liability of defendant Secrest. Plaintiff brought this matter to the attention of the trial court both by a motion for such a judgment and a motion for summary judgment, as well as by a motion for the reconsideration of a decision overruling plaintiff's motion for summary judgment. Likewise, it was the clear mandate of this court that the issue of damages should be retried and submitted to the jury with the appropriate instructions mandated by this court, unless the evidence upon retrial substantially differed from that upon the original trial so as to justify a different charge. The issue of release and satisfaction of judgment raised by the fifth assignment of error could, however, if appropriate, result in a judgment for defendant Secrest without retrial. Upon remand, in accordance with the mandate of this court, the trial court should have entered an order vacating its prior judgment in favor of defendant Secrest, sustaining plaintiff's motion for judgment notwithstanding the verdict upon the issue of liability as to defendant Secrest, and granting plaintiff a new trial upon the issue of damages. The trial court erred in failing to follow the mandate of this court upon the prior appeal. Accordingly, the first, second, and fourth assignments of error are well taken. By the third assignment of error, plaintiff contends that the trial court erred in allowing defendant Secrest to amend her responses to requests for admission. So long as such amended answers to requests for admission are not utilized as a basis for the trial court to, in effect, reverse or overrule the judgment of this court upon the prior appeal, we find no prejudicial error in allowing amendment. Whether this court was correct or incorrect in its *Page 213 judgment upon the prior appeal, upon remand, the judgment of this court became the law of the case to be applied by the trial court. The responses to the request for admissions could not be amended upon remand in such a fashion as to have the effect of reversing or overruling the judgment of this court upon the prior appeal since this court expressly mandated the trial court to grant judgment notwithstanding the verdict in favor of plaintiff upon the issue of liability of defendant Secrest. However, we find no prejudicial error in the trial court's allowing the amended responses since the issue of liability of defendant Secrest had been determined by the judgment of this court upon the prior appeal and constitutes the law of the case. The third assignment of error is not well taken. The fifth assignment of error raises an issue concerning a codefendant at the original trial. The original trial resulted in a verdict in favor of defendant Secrest but against the codefendant Farrar in the amount of $6,075. During the pendency of the prior appeal to this court, anunc pro tunc entry was filed in the trial court with respect to the judgment in favor of plaintiff against the codefendant Farrar, such entry being filed two days after the filing of the notice of appeal upon the prior appeal. The nunc pro tunc entry revealed that, during the pendency of the action in the trial court, and prior to the commencement of trial, plaintiff executed a covenant not to sue defendant Farrar in consideration of the sum of $8,500. The order of the trial court recited that, in view of the covenant not to sue, the court ordered that "that portion of the Judgment * * * rendering judgment against the Defendant, Gwendolyn Ann Farrar * * * is rendered null and void and of no effect and that plaintiff is forever barred from proceeding against or attempting collection from the defendant, Gwendolyn Ann Farrar, on said Judgment Entry." The entry further ordered the clerk to indicate upon the docket that the judgment against defendant Farrar "is null and void and of no effect." In the nunc pro tunc entry, plaintiff and defendant Farrar stipulated that "said Covenant Not To Sue rendered *Page 214 void and of no effect that portion of said judgment entry rendering judgment in favor of the plaintiff and against the defendant, Gwendolyn Ann Farrar * * * that the plaintiff and defendant, Gwendolyn Ann Farrar, further agree and stipulate that by reason of said Covenant Not To Sue, plaintiff is forever barred from proceeding against or attempting collection from the defendant, Gwendolyn Ann Farrar, because of said judgment entry * * * however, plaintiff has his rights reserved to proceed against the co-defendant, Mary Fraley Secrest (Bartley)." The consideration for the covenant not to sue was nearly $2,500 in excess of the jury verdict rendered against defendant Farrar. There is no explanation as to why plaintiff proceeded to trial and judgment against defendant Farrar despite the covenant not to sue, but defendant Farrar did not object or raise the issue at any time. Defendant Secrest points out that the covenant not to sue did not expressly reserve plaintiff's right to proceed with his action against defendant Secrest. However, the covenant not to sue is just that and not a release and expressly provides that "it is further understood that this is a Covenant Not To Sue as to the parties named herein and is not a Release." Although a release not reserving rights against other joint or concurrent tortfeasors constitutes a release as to all joint and concurrent tortfeasors, it is not necessary in a convenant not to sue to expressly reserve rights against other joint or concurrent tortfeasors. The syllabus of Bacik v. Weaver (1962), 173 Ohio St. 214, reads as follows: "Where a valid agreement is made not to sue parties whose negligence is claimed to have proximately contributed with the negligence of others to cause injury and where the agreement does not purport to release or transfer any cause of action for the injury and where the agreement does not expressly recognize the consideration paid thereunder as full satisfaction for the injury, such agreement will not operate to bar actions against others for causing such injury even though the agreement does not expressly reserve rights against such others." *Page 215 Accordingly, the covenant not to sue does not, standing by itself, constitute a release of plaintiff's claim against defendant Secrest. Defendant Secrest, however, contends that the nunc pro tunc entry has the effect of constituting a full satisfaction of plaintiff's judgment and, accordingly, bars any further action by plaintiff against defendant Secrest. There appears to be no authority upon the precise issue raised herein. No reported decision has been cited to or found by this court which involves a situation similar to that herein involved. Defendant Secrest relies upon Cleveland Ry. Co. v. Nickel (1923), 120 Ohio St. 133, the syllabus of which reads as follows: "1. Receipt of full compensation from one of several persons whose concurrent acts of negligence are the basis of a suit for damages for personal injury releases all. "2. Where, in an action to recover damages for personal injury claimed to have been caused by concurrent negligent acts of two defendants the amount of damages sustained is determined by the jury and a judgment rendered thereon against one defendant, the other being granted a new trial, the payment of such amount and the receipt thereof by the plaintiff releases both defendants." Obviously, the first paragraph of the syllabus of Nickel must be applied at least to the extent of requiring a pro tanto reduction of any judgment that plaintiff may eventually recover from defendant Secrest by the amount paid to plaintiff by defendant Farrar for the covenant not to sue. However, the issue is whether or not plaintiff has received "full compensation" from defendant Farrar. Upon the prior appeal, this court found error in submission of the issue of damages to the jury so that the amount of full compensation to which plaintiff is entitled has not yet been determined. The second paragraph of the syllabus of Nickel is readily distinguishable from the circumstances herein. In Nickel, a joint judgment was rendered in favor of the plaintiff against two codefendants. Plaintiff therein apparently *Page 216 took no exception to the judgment, but one of the defendants was granted a new trial, and the other defendant was granted a remittitur. Defendant paid the remitted judgment and such was accepted by the plaintiff. The court held that, under such circumstances, the plaintiff had received full compensation for her injuries and that, by acceptance of payment therefor from the one defendant, the plaintiff therein released the other defendant, who had been granted a new trial. In this case, however, the amount of damages to which plaintiff is entitled has not been determined by a jury without the intervention of error as determined by this court upon the prior appeal. It is further noted that this issue, although then existing, was not raised upon the prior appeal. Had there been no covenant not to sue, and had plaintiff accepted payment by defendant Farrar of the judgment in full,Nickel would be controlling and would bar any further action by plaintiff against defendant Secrest. Here, however, the judgment against defendant Farrar was not paid subsequent to its rendition, but, rather, it was found to be null and void and unenforceable because of the existence of a covenant not to sue executed by plaintiff to defendant Farrar prior to the commencement of trial. Although we do not condone the tactics of plaintiff in executing a covenant not to use, the existence of which was concealed from defendant Secrest, and proceeding to trial against both defendant Farrar and defendant Secrest as if such covenant had not been executed, we fail to find any reason why the covenant not to sue should have any different effect because of the circumstances. There has been no satisfaction of the judgment rendered against defendant Farrar but, rather, a recognition that plaintiff is barred from collecting the judgment by virtue of the covenant not to sue. The result would be the same whether the judgment was for a greater or, as herein, a lesser amount than the consideration paid for the covenant not to sue. Accordingly, we conclude that neither the covenant *Page 217 not to sue, nor the nunc pro tunc entry operate as a complete release of plaintiff's claim against defendant Secrest; however, any award that plaintiff may recover against defendant Secrest must be pro tanto reduced by the amount received from defendant Farrar as consideration for the covenant not to sue. At this point, it is impossible to determine whether or not plaintiff has received full compensation for this injuries, although there is a distinct possibility that he has, depending upon the eventual determination of damages. Accordingly, the trial court erred in sustaining defendant Secrest's motion for a summary judgment, and the fifth assignment of error is well taken. Although this court could on this appeal reach a different conclusion upon the basic issues than that reached upon the prior appeal, we should do so only when we determine that there is manifest error in our prior judgment. Although the issue may well be debatable, the issue was determined upon the prior appeal, and we are reluctant to disturb that finding, inasmuch as there is no manifest error demonstrated. Accordingly, the first, second, fourth, and fifth assignments of error are sustained, and the third assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law consistent with this decision. Judgment reversed and cause remanded. REILLY and McCORMAC, JJ., concur. *Page 218

2016-07-06 06:36:53.409224+00

VictDr

Earl Nickey, plaintiff-appellant, had been a patient of Dr. Lauren Brown, defendant-appellee, for a number of years. In February 1970, Dr. *Page 33 Brown diagnosed Nickey as a diabetic and prescribed medication and a special diet to control the disease. By May 1970, Nickey's blood sugar had stabilized at an acceptable level, and he discontinued his visits to Dr. Brown. On December 23, 1977, Nickey came to Brown's office complaining of pain in the left thigh. Nickey indicated to Brown that he (Nickey) had recently suffered a blow to the thigh. Brown diagnosed the problem as a sprain and prescribed an anti-inflammatory medication. On December 26, 1977, Nickey went to the emergency room at Barberton Citizen's Hospital complaining of extreme pain in his left thigh and knee. He had a temperature of 101.3 degrees but no local temperature increase in the thigh and knee, no tenderness of the left calf muscles and good left femoral pulses. He was diagnosed as having a muscle spasm, given medication to alleviate the pain and told to see his family physician. On December 27, 1977, Nickey returned to Brown's office with a stiff and swollen left knee, increased pain, a temperature of 100 degrees and general malaise. At this time Brown considered the possibility of a fracture and tapped and aspirated the knee joint, removing bloody fluid. The simple test that Brown performed on the bloody fluid indicated the absence of fracture. The presence of bloody fluid in the joint was consistent with Brown's previous diagnosis of sprain. Continuing to treat for sprain, Brown injected Decadron into the joint, prescribed an oral diabetes medicine and disposed of the bloody fluid without further testing. On December 29, 1977, Nickey again returned to Brown's office for treatment of his knee. At that time, Brown extracted pus from the knee joint. Brown discarded the pus without having it tested and recommended that Nickey be hospitalized but failed to make arrangements for immediate admittance. Nickey arrived at the emergency room on his own initiative at 7:30 a.m. on December 30, and requested admission. Brown was notified by the hospital and authorized the admission. At this time, Brown diagnosed an infection in the joint and prescribed ampicillin, a broad spectrum antibiotic. On January 4, 1978, one of the consulting orthopedic surgeons retapped Nickey's knee and had the aspirated pus cultured in the hospital laboratory. The test results indicated the presence of a bacteria resistant to treatment with ampicillin. A different antibiotic was prescribed and an incision and drainage was done on the knee. However, the infection remained uncontrolled resulting in the disarticulation of Nickey's left leg on January 26, 1978. Nickey sued Brown alleging medical malpractice that proximately caused the loss of his left leg. The case was arbitrated in December 1979, pursuant to R.C. 2711.21. The arbitrators unanimously found in favor of Nickey and awarded him $465,000 in damages. Brown refused to accept the decision of the arbitrators. The pleadings were amended as required by R.C. 2711.21, and the matter was tried to a jury. The jury found for Brown and judgment was entered on the verdict. Nickey appeals that judgment. Assignment of Error I "The trial court erred in refusing to allow the plaintiff to call expert witnesses in the absence of a violation of the rules of discovery or a court order." The record indicates that defendant filed supplementary answers to interrogatories on October 16, 1980, informing plaintiff that Drs. McFadden, Miller, DeFreest, Hunter, Weygandt, and Glazer were possible defense witnesses. In early January 1981, Brown's attorney wrote a letter to Nickey's attorney stating that Dr. Weygandt would definitely testify at trial. Since Dr. Weygandt was a potential defendant, he had not been contacted by plaintiff prior to this time. Upon receipt of *Page 34 the letter, Nickey's attorney telephoned Brown's attorney to notify him that, since Weygandt was going to testify, plaintiff intended to procure additional experts to refute Weygandt's opinion. On January 23, 1981, defendant moved the trial court for an order excluding all expert testimony on behalf of plaintiff, except the testimony of Dr. Parker who had testified for plaintiff at the arbitration hearing. On January 27, 1981, Nickey's attorney again called Brown's attorney and informed him of the names and addresses of two additional expert witnesses. On January 28, a pretrial conference was held. At that time, plaintiff was prepared to give the names, addresses and specialties of all anticipated expert witnesses in compliance with Rule 8.01 of the Local Rules of the Summit County Court of Common Pleas. Also on January 28, plaintiff filed supplemental answers to interrogatories adding Drs. Lawrence and Skelleran to plaintiff's list of expert witnesses. The answers were served on defendant by regular mail. On February 2, 1981, immediately before the trial began, defendant's attorney renewed his motion to exclude, contending that he had received written notice of the additional experts that very morning and that to allow such testimony would constitute unfair surprise. The court limited plaintiff to calling Drs. Parker and DeFreest for his case-in-chief. Plaintiff argues that the court's exclusion was error. We agree. Civ. R. 37(D) provides: "If a party * * * fails * * * to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, * * * the court in which the action is pending on motion and notice may make such orders in regard to the failure as are just, and among others it may take any action authorized under subsections (a), (b), and (c) of subdivision (B)(2) of this rule. * * *" Sanctions permitted under Civ. R. 37(B)(2)(a), (b), and (c) include stipulating facts in accordance with the claim of the moving party, refusing to allow the disobedient party to support or oppose designated claims or defenses, excluding the undiscovered evidence, striking portions of the pleadings, dismissing the action, staying the proceedings and rendering a judgment by default. Thus, under Civ. R. 37(D), the trial court may immediately sanction noncompliance without a previous court order compelling discovery as long as the sanction is just. The exclusion of reliable and probative evidence is a severe sanction and should be invoked only when clearly necessary to enforce willful noncompliance or to prevent unfair surprise.State v. O'Neil (Feb. 17, 1982), Wayne App. No. 1771, unreported. Further, under Civ. R. 37 (D), exclusion is only one of several means of remedying unfair surprise. For example, the court may grant a continuance for the purpose of giving defendant the opportunity to depose the undisclosed witnesses and to determine their opinions. Alternatively, the court can permit the testimony, allowing defendant to renew his motion when and if he is, in fact, surprised by the expert's opinion. Hair v. CertifiedLaboratories (Aug. 3, 1979), Summit App. No. 9160, unreported. The record in the instant case fails to indicate that the testimony of Drs. Lawrence and Skelleran would have been so surprising to defendant as to warrant the exclusion. Of import is the fact that defendant's attorney had actual notice of the names and addresses of plaintiff's experts approximately a week before trial yet made no attempt to contact either witness or to demand a statement of the substance of their testimony pursuant to Civ. R. 37 (A). Under these circumstances, we believe that the trial court abused its discretion in excluding plaintiff's evidence. The record indicates that the court below confined its ruling to the exclusion *Page 35 of the testimony only in plaintiff's case-in-chief, presumably permitting plaintiff to call Drs. Lawrence and Skelleran on rebuttal. 31 Corpus Juris Secundum 818, Evidence, Section 2, defines "rebutting evidence" as follows: "Rebutting evidence is that which is given to explain, repel, counteract, or disprove facts given in evidence by the adverse party. It is that evidence which has become relevant or important only as an effect of some evidence introduced by the other side. * * *" The scope of rebuttal testimony is limited by the evidence adduced by the opposing party. Thus, the opportunity to rebut defendant's evidence is not an adequate substitute for introducing evidence in the case-in-chief. Further we note the difficulties inherent in medical malpractice actions with getting doctor's reports and depositions due to time constraints imposed on doctors by their practices. In the instant case, the fact that Dr. Weygandt was a potential defendant further limited plaintiff's ability to take his deposition, thus, necessitating additional expert testimony in plaintiff's case-in-chief. Under these circumstances, we find that the exclusion of plaintiff's witnesses from his case-in-chief is prejudicial error and sustain the first assignment of error. Although our disposition of this first assignment of error reverses the judgment, in the interest of judicial economy and in accordance with App. R. 12 (A), we will now pass upon the remaining assignments of error. Assignment of Error II "The trial court erred in allowing the introduction of depositions into evidence, over plaintiff's objections, when the offering party had not complied with Ohio Rules of Civil Procedure 32 (A)." Civ. R. 32 (A) states: "Use of depositions. Every deposition intended to be presented as evidence must be filed at least one day before the day of trial or hearing unless for good cause shown the court permits a later filing." The record indicates that the videotaped depositions of Drs. McFadden and Miller were not filed pursuant to Civ. R. 32 (A). However, there is no indication that the failure to file was a bad faith attempt to withhold discoverable evidence. To the contrary, plaintiff's attorney was present at the taking of both depositions and cross-examined the witnesses. Dr. McFadden's deposition was shown at the arbitration hearing with plaintiff's permission. The record further indicates that plaintiff had actual notice that defendant intended to use Dr. Miller's deposition at trial. Thus, we conclude that defendant's failure to comply with Civ. R. 32 (A) was an inadvertent mistake. Still, the rule clearly makes filing of the depositions mandatory. Bryson v. Fleming (Jan. 9, 1980), Medina App. No. 894, unreported; Kull v. Karson (June 22, 1977), Medina App. No. 699, unreported. However, Civ. R. 32 (A) must be read in conjunction with Civ. R. 32 (D)(4) which provides: "As to completion and return of deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rule 30 and Rule 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained." As indicated in the Staff Note to Civ. R. 32, the filing requirement is designed to put the opposing party on notice that the depositions might be used in evidence. The waiver provisions of Civ. R. 32 (D) are designed to limit objections. The Staff Note states: "Objections which could have been obviated by timely assertion are waived. Currently all exceptions to the deposition *Page 36 except incompetency and relevancy are waived unless made and filed before the commencement of the trial. * * *" In the instant case, defense counsel indicated in his opening statement made on the first day of trial that a color videotape of Dr. Miller's testimony would be shown and that the jury would hear Dr. McFadden's testimony. Plaintiff did not at this time object to the admission of the unfiled depositions. Rather, on the afternoon of the third day of trial, after the court had indicated that defendant could show the tapes, instructed the jury as to the function of the taped depositions, and asked the bailiff to turn off the courtroom lights, plaintiff's attorney objected to their admissibility under Civ. R. 32(A). Construing plaintiff's objection as the motion to suppress required by Civ. R. 32 (D)(4), we do not believe the motion was made with reasonable promptness. In the instant case, due diligence required plaintiff to move to suppress when the unfiled depositions were mentioned in defendant's opening statements. A motion at this point would have allowed defendant an opportunity to remedy the oversight and to obviate the objection. Thus, we hold that plaintiff's failure to move with reasonable promptness waived his objection. See Valdez v. United States (C.A. 9, 1963),326 F.2d 598, 600. Further, plaintiff has not demonstrated that he was surprised by the contents of the depositions or that their introduction as evidence changed his trial strategy or perception of the case. We agree with the court in Houser v. Snap-On Tools Corp. (D.Md. 1962), 202 F. Supp. 181, 188, which held: "The error complained of in no way affects the value of the depositions as evidence. So, even if it cannot be said that there has been a waiver of the right to object — and it very well might — defendant's slight oversight does not justify so drastic an action on the part of the Court." Assignments of Error III and VI "III. Where a party has made admissions against interest, or judicial admissions, regarding his negligence and failure to meet the standard of care, a question of law and not of fact is raised and the trial court has a plain duty to sustain a motion for a directed verdict, which the trial court erred in failing to do. "VI. Where a defendant is guilty of negligence as a matter of law on the basis of his own admissions, and the properly admitted expert testimony demonstrates proximate cause, the trial court erred in refusing to grant a directed verdict on the issue of proximate cause." Plaintiff argues that the trial court is required to sustain a motion for directed verdict when the opposing party's testimony amounts to an admission of negligence. Winkler v. Columbus (1948), 149 Ohio St. 39 [36 Ohio Op. 364]. The Winkler court said at pages 43-44: "* * * But where plaintiff herself makes admissions against interest during her cross-examination which admissions showclearly that her negligence contributed directly to her injury (one of the precise, ultimate facts in issue) a question of law and not of fact is raised and the trial court has a plain duty to sustain a motion for a directed verdict. * * *" (Emphasis added.) In Winkler, the plaintiff testified that she had seen the defect in the sidewalk shortly before she tripped over it and fell. In the instant case, Dr. Brown's answers on cross-examination are not clear admissions of negligence so as to mandate a directed verdict. Brown testified that he agreed with plaintiff's attorney that certain testing procedures comport with good medical practice. However, Brown did not say that such procedures were the only means of complying with the standard of care required of a physician. Rather, he explained why he believed that his diagnosis and treatment of plaintiff's injuries were also commensurate with good medical practice. *Page 37 Expert witnesses expressed varied opinions as to the proximate cause of plaintiff's disarticulation. Dr. Parker testified that Brown's negligent treatment of Nickey's infection was the only reason for the disarticulation. Dr. Weygandt regarded Nickey's infection as quite rare and uncontrollable with any antibiotic. In Dr. Weygandt's opinion, different treatment would not have altered the result. Since reasonable minds could disagree as to the issues of negligence and proximate cause, the trial court properly allowed the jury to resolve the factual dispute. Assignment of error IV "The trial court erred in preventing plaintiff from calling the arbitrators on direct examination where the general rule in Ohio is that an arbitrator's testimony is admissible except to impeach the award and Ohio Revised Code § 2711.21 merely specifically changed that rule to allow cross-examination by a non-offering, or losing, party." R.C. 2711.21 provides in relevant part: "(C) If the decision of the arbitration board is not accepted by all parties thereto, the pleadings shall be amended to aver both the fact that the controversy was submitted to an arbitration board and the decision of the arbitration board. The decision of the arbitration board, and any dissenting opinion written by any board member, shall be admitted into evidence at trial upon the offer of any party * * *. "* * * "(D) Any party who has not made the offer stated in division (C) of this section may subpoena any member or members of the arbitration board for purposes of cross-examination." The Supreme Court of Ohio, in Beatty v. Akron City Hospital (1981), 67 Ohio St. 2d 483, 487 [21 O.O.3d 302], construed this section to mean: "Additionally, the statute provides for a number of safeguards to the litigants in the submission of the arbitrators' decision to the jury. Under the section, the board's decision is admissible only if the trial court concludes that the hearing and decision are free from prejudice to either party. Additionally, the statute specifically affords the non-offering party the right to subpoena and cross-examine any of the arbitrators during the trial. No similar right is provided the offering party." (Emphasis added.) R.C. 2711.21 does not confer upon the prevailing party the right to have the arbitrators repeat the testimony adduced at the hearing or to give their opinions as to the witnesses' credibility. Rather, arbitrators' testimony on direct examination is limited to defining the issues tried by them, the claims included in the award and the time and the circumstances under which the award was made. Corrigan v. Rockefeller (1902), 67 Ohio St. 354. See, also, 6 Ohio Jurisprudence 3d 90, Arbitration and Award, Section 91. None of these matters was at issue in this case. At trial, plaintiff's counsel asserted that the issues before the jury were the same issues presented to the arbitrators. The claims for damages were the same. The time and circumstances were not challenged. Thus, the trial court properly prevented plaintiff from calling the arbitrators for his case-in-chief. Assignment of Error V "The trial court erred in its refusal to charge the jury regarding the `expert' character of the arbitration panel's decision in the face of plaintiff's request based on Beatty v.Akron City Hospital." In Beatty v. Akron City Hospital, supra, at 490-491, the Supreme Court quoted with approval the following guidelines for jury instructions: "As appropriately stated by the Wisconsin Supreme Court inState, ex rel. Strykowski, v. Wilkie, supra [(1978),81 Wis. 2d 491, 261 N.W.2d 434], at pages 528-529: *Page 38 "`The proper application of this rule, as with any rule of evidence, is the responsibility of the trial court. No boiler plate jury instruction can be drafted to cover all factual situations. However, the trial court shall instruct the jury with clarity and simplicity to the end that the jurors are impressed with the fact that the panel's findings and order are in no way binding upon the jury, but are to be accorded such weight, and such weight only, as the jury may choose to give them. The trial court shall further instruct the jury to the effect that the jury remains the final arbiter of the issues raised and the facts presented and that its determination, based upon its consideration of all the evidence, will prevail.'" (Emphasissic.) The trial court's instructions comport with these guidelines. We find no error. The judgment is reversed and the cause is remanded for further proceedings consistent with the law and this opinion. Judgment reversed and cause remanded. MAHONEY, P.J., and BELL, J., concur.

2016-07-06 06:36:53.458337+00

Willamowski

{¶ 1} Defendant-appellant, Nicholas J. Kinstle, brings this appeal from the judgment of the Court of Common Pleas of Allen County granting summary judgment to plaintiff-appellee, S. Cohn Son, Inc. ("Cohn"). This court sua sponte consolidated this case with appellate case No. 1-07-04 for the purposes of briefing and oral argument. However, we choose to issue separate opinions. {¶ 2} On May 5, 2005, a complaint in replevin was filed by Cohn. An answer was filed by a codefendant, David Jennison, on May 13, 2005. Kinstle filed his answer, counterclaim, and a cross-claim against Jennison on June 2, 2005. On November 14, 2006, Kinstle filed for default judgment or, in the alternative, summary judgment against Jennison. On December 18, 2006, the trial court ruled on the motion denying summary judgment to Kinstle, but granting summary judgment to Cohn, who had not filed a motion for summary judgment. This court notes that Kinstle did not appeal the denial of his motion for summary judgment against Jennison and that issue is not ripe for review. Kinstle filed a notice of appeal from the granting of summary judgment to Cohn and raises the following assignments of error. The trial court may not award summary judgment to a party which files no request for such a ruling. It is reversible error for the trial court on summary judgment to weigh the evidence and attribute differential weight to some evidence over other evidence. *Page 83 {¶ 3} When reviewing a motion for summary judgment, courts must proceed cautiously and award summary judgment only when appropriate. Franks v. Lima News (1996),109 Ohio App. 3d 408, 672 N.E.2d 245. "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 the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party." Stateex rel. Howard v. Ferreri (1994), 70 Ohio St. 3d 587, 589,639 N.E.2d 1189. When reviewing the judgment of the trial court, an appellate court reviews the case de novo.Franks. {¶ 4} Kinstle's first assignment of error claims that the trial court erred in granting summary judgment to a party that did not file a motion for it. (A) For a party seeking affirmative relief. A party seeking to recover upon a claim, counterclaim, or cross-claim * * * may move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part of the claim, counterclaim, cross-claim, or declaratory judgment action. * * * (B) For defending party. A party against whom a claim, counterclaim, or cross-claim is asserted * * * may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part of the claim, counterclaim, cross-claim, or declaratory judgment action. Civ. R. 56. The rule does not permit a trial court to grant summary judgment to a party without a pending motion. Since Cohn did not seek summary judgment, the trial court erred in sua sponte deciding to grant summary judgment in Cohn's favor. The first assignment of error is sustained. {¶ 5} Having found that the trial court erred in granting summary judgment to Cohn when summary judgment was not requested, the second assignment of error becomes moot and need not be addressed by the court. {¶ 6} The judgment of the Court of Common Pleas of Allen County is reversed, and the matter is remanded for further proceedings. Judgment reversed and cause remanded. ROGERS, P.J., and PRESTON, J., concur. *Page 84

2016-07-06 06:36:54.934255+00

Whituside

This is an appeal from a judgment of the Franklin County Court of Common Pleas. Defendant was found guilty, following a jury trial, of one count of armed robbery and one count of assault with intent to rape, and sentenced to be imprisoned in the Ohio Penitentiary with the sentences to run concurrently. Through appointed counsel, defendant appeals and raises six assignments of error as follows: "First Assignment of Error "The Failure to Conduct an Inquiry to Determine Defendant's Capacity to Stand Trial Denied the Accused Due Process of Law as Guaranteed by the Fourteenth Amendment. "Second Assignment of Error "The Refusal to Allow Defendant to Amend his Plea Was a Denial of Due Process Required by the Fourteenth Amendment Since Defendant Was Deprived of Such a Vital Defense. "Third Assignment of Error "Defendant Was Denied Effective Representation of Counsel at Time of Arraignment in Violation of His Sixth and Fourteenth Amendment Rights. "Fourth Assignment of Error "Defendant Was Denied The Right to Counsel at Trial Since His Waiver of Counsel Was Not Made Knowingly and Intelligently. "Fifth Assignment of Error "Defendant Acting Pro Se Did Not Receive Adequate Protection From The Trial Judge. "Sixth Assignment of Error "The Court Violated Defendant's Right to Compulsory Process in Violation of His Sixth and Fourteenth Amendment Rights." The record indicates that the indictment was filed on November 27, 1972, and served upon defendant on December 6, 1972. On December 8, 1972, a written plea of not guilty was entered by defendant, indicating that he was represented by attorney J. Michael McGinley, but signed on his behalf by the Legal Aid and Defender Society. On December *Page 166 19, 1972, a notice that a pre-trial hearing had been set for January 9, 1973, was filed. On January 15, 1973, a journal entry, signed by the prosecuting attorney and James Kura (attorney for the defendant), ordering a medical examination of defendant was filed. By this entry, Southwest Mental Health Center was designated to investigate and examine into the mental condition of the defendant, pursuant to R. C. 2945.40. On February 15, 1973, there was filed an apparent xerox copy of a letter dated January 31, 1973, from Southwest Mental Health Center, which apparently constitutes its report on defendant's mental health condition. A proof of service filed February 16, 1973, indicates that on that date a copy of the report of Southwest Mental Health Center was served by ordinary mail upon Roy F. Martin, counsel for defendant. On the same date, a motion was filed by attorney J. Michael McGinley, and sustained by an entry, removing his name as attorney of record in this case, "for the reason that he does not know the defendant, and has never discussed his case with anyone, or been retained to represent Patrick Jackson." The case proceeded to trial on Wednesday, February 21, 1973, without further inquiry or determination of the mental capacity of defendant to stand trial. The transcript of proceedings indicates that some discussion between the defendant and the court may have occurred prior to a court reporter being present, inasmuch as the transcript commences with the following: "THE DEFENDANT: I ain't going to trial "THE COURT: You are going to be gagged, Mr. Jackson, if you don't be quiet. "THE DEFENDANT: Go ahead, speak your piece. "* * * "THE COURT: * * * You came before this Court on arraignment day, December 8, 1972, and entered a not guilty plea to these charges. The record shows at the time of the not guilty plea, which you signed, you were represented for arraignment purposes only by Legal Aid and you informed the Court at that time that you were represented by Mr. Michael McGinley *Page 167 "THE DEFENDANT: I haven't made any contact with — they won't let me make any calls over there "* * * "THE COURT: This case was called for pretrial conference and you were brought over December 19th at which time Mr. McGinley did not show up. The Court called Mr. McGinley and Mr. McGinley advised the Court that he did not represent you. At that time the Court asked the Legal Aid representative, Mr. Kura, to come in and discuss this matter with you and Mr. Kura advised this court that you did not wish Legal Aid to represent you; that you had in mind either Mr. Davis, Mr. William Davis or Mr. Webster Lyman. The Court contacted Mr. Lyman and Mr. Lyman advised the Court he did not represent you and was not going to represent you and the Court was advised then, finally, that Mr. Davis was not representing you. "Mr. Jackson, you were brought before this court a couple weeks ago and you were advised at that time that the Court was going to appoint Legal Aid to represent you unless you could come into this Court within approximately five or six days with an attorney and inform the Court who the lawyer was going to be in the case that was going to represent you and that this case was going to be tried. "THE DEFENDANT: I have not made no contact "THE COURT: This case is set for trial this morning, Mr. Jackson, and the case is going to be tried this morning as I advised you. "THE DEFENDANT: I refuse. "THE COURT: Mr. Kura is here and "THE DEFENDANT: I am not going to have no trial. "THE COURT: I am going to gag you "THE WITNESS: Well, go ahead "THE COURT: You are going to have a trial this morning. Legal Aid is going to be here in the Courtroom. Now, we will call the Jury. Would you call the Jury, please. "THE DEFENDANT: This is a forceful trial. "THE COURT: This is your trial, sir, and you are going to remain silent except when you are addressed by the Court or the attorneys. "THE DEFENDANT: A forceful trial. *Page 168 "THE COURT: You are entitled to a speedy trial, Mr. Jackson, and this is what I am making available to you. A speedy trial. "* * *." A jury was called for voir dire examination and the court advised the jury as follows: "As I have said before this is the case of the State of Ohio against Patrick G. Jackson. Mr. Jackson is sitting at the counsel table; at his left is Mr. James Kura, a member of the Columbus Bar and seated with Mr. Jackson. * * * The State is being represented by Mr. John Salimbene." Following voir dire examination by the prosecuting attorney, the following occurred: "THE COURT: Anything on behalf of the defense? "MR. KURA: The Defendant states that he refuses to have anything to do with me, I am not his representative so at this point, your Honor, I will remain moot until and if the Defendant asks me any question or asks me to intercede in his behalf. "THE COURT: Very well. Gentlemen, I take it there are no challenges for cause. Any challenge preemptorily, Mr. Salimbene? "MR SALIMBENE: The State is satisfied, your Honor. "THE COURT: Mr. Jackson, do you wish to challenge anybody on the jury? "THE DEFENDANT: I refuse everything. This is not my representative so I refuse everything. This man is not my representative. "THE COURT: Very well, Mr. Jackson. * * *" The state called two witnesses and defendant, at various times, interrupted the questioning of the witnesses. The court offered defendant personally an opportunity to examine the witnesses, and he did ask certain questions of one of the witnesses which consisted primarily of statements by defendant of his own past history. Following the state's case, the court asked Mr. Kura to explain to defendant his rights at that stage of the case. Mr. Kura also at that time made several motions, prefaced with the statement that he had never been officially appointed to the case. *Page 169 He requested the court to look further into the competency of defendant to stand trial. This was overruled by the trial court. Repeating the fact that he had not been officially appointed to the case, Mr. Kura also asked leave to amend the plea of not quilty to one of not guilty by reason of insanity, and requested a continuance in order to subpoena witnesses on behalf of defendant. This also was denied by the trial court. The court stated: "Well, in view of the fact we have already had an examination and the examiner has advised the Court that the Defendant is capable of standing trial the Court doesn't feel justice would be served by granting a continuance. The motion will be overruled." By the first assignment of error, defendant, through counsel, contends the trial court erred in failing to conduct an inquiry to determine defendant's capacity to stand trial. By entry of January 15, 1973, the trial court did determine that it had been suggested that defendant is not now sane and that defendant should be examined as to his mental condition. As a result of that order, the trial court received the letter dated January 31, 1973, and filed herein on February 15, 1973, from the Southwest Mental Health Center, signed by its director of forensic psychiatry, which reads as follows: "The above captioned individual pursuant to the provisions of Section 2945.40 of the Ohio Revised Code, was psychiatrically examined under the request of the court on January 25, 1973, by Henry Luidens, M. D., a forensic psychiatric consultant to Southwest Community Mental Health Center. "It is the opinion of our forensic psychiatry staff that Patrick G. Jackson is competent and understands the nature and consequences of the charges against him. He is considered sane and able to counsel in his defense." R. C. 2945.37 provides for such an inquiry into the present sanity of a defendant in a pending criminal action and provides that "the court shall proceed to examine into the question of sanity or insanity of said person, or in its discretion may impanel a jury for such purpose." R. C. 2945.38 provides, in pertinent part: *Page 170 "If the court or jury finds, upon the hearing provided for in Section 2945.37 of the Revised Code, that the accused is sane, he shall be proceeded against as provided by law. If the court or jury finds him to be not sane, he shall be forthwith committed by the court to a hospital for the mentally ill within the jurisdiction of the court. If the court finds it advisable, it shall commit such person to the Lima state hospital until he is restored to reason, and upon being restored to reason the accused shall be proceeded against as provided by law." R. C. 2945.40 does provide for commitment of a defendant to either the Lima State Hospital, a local hospital for the mentally ill, or disinterested qualified physicians, to investigate and examine into the mental condition of a defendant and to testify as experts at his trial or other hearing. The only provision in that section for a report upon the results of the investigation, observation, or examination, is the following: "* * * Such persons so appointed may be required by the court to prepare a written statement under oath, concerning the mental condition of the defendant, and file the same in the case. Such report shall not be read as evidence, except that it may be used by either counsel on the cross-examination of the witness who signed the same. * * *" R. C. 2945.40 further provides that: "The expert witnesses appointed by the court may be called by the court and shall be subject to examination and cross-examination by the prosecuting attorney and counsel for the defendant. The appointment of such expert witnesses, and their testifying as witnesses, shall not preclude the prosecuting attorney or defendant from calling other witnesses to testify on the subject of insanity. * * *" R. C. 2945.37, 2945.38 and 2945.40, when read in pari materia, clearly contemplate and require that the determination of the present sanity of the person accused of crime whose cause is pending is to be made either by the court or by a jury. SeeState, ex rel. Smilack, v. Bushony (1952), 93 Ohio App. 201. While the court may refer such a defendant to certain authorities for examination, observation, or *Page 171 investigation, with respect to his mental condition, the determination of present sanity is not made by such authorities, but rather must be made either by the court or by jury. Such investigation, observation, or examination is merely a means of obtaining evidence to be considered by the court or jury in determining present sanity of the defendant. R. C. 2945.40 preserves the right of examination and cross-examination of such witnesses. The record of this case is devoid of any indication that the trial court made a determination of the present sanity of the defendant, or held a hearing in regard thereto. The record does reflect that prior to the jury being sworn for voir dire examination, the trial court made the following statement: "Let the record show that this man has had a psychiatric evaluation by the Southwestern Clinic and that the court has received a report from the clinic stating that this defendant is able to stand trial and we will make the report a part of this file and the case record." The trial court, however, made no determination of the issue, and held no hearing thereon. Once the trial court made a determination that there was cause to investigate the present sanity of the defendant, as the trial court did by the January 15, 1973, entry, the trial court was required to proceed with a hearing and make the determination provided by R. C. 2945.37 and 2945.38, supra. This case is not controlled by State v. Jemison (1968),14 Ohio St. 2d 47. That case held that it was not necessary to have a second examination into the question of the sanity of a defendant unless the court is informed that the defendant has become insane since a prior determination of sanity was made. Furthermore, defendant in that case was represented by counsel, and a request for a sanity hearing was withdrawn with the approval of both counsel and the defendant himself. Accordingly, we find the first assignment of error to be well taken. By the second assignment of error, defendant, through *Page 172 counsel, contends that the trial court erred in refusing to allow a change of plea on behalf of defendant to not guilty by reason of insanity. This assignment of error is well taken. Had there been a sanity hearing as required and a proper determination made by the trial court, a change of plea may have been frivolous. However, in light of the fact that the defendant was at no time represented by counsel prior to trial, except briefly at the arraignment upon the indictment, and because of the improbability of a defendant who in fact is insane raising such a defense, such request by counsel, even though he was not officially appointed by the court to represent the defendant, should have been given consideration rather than having been summarily overruled. The third, fourth and fifth assignments of error are related and will be considered together. They relate to defendant's being represented by counsel at his trial. The third assignment of error is not well taken. There is no indication in the record that the defendant was denied effective representation of counsel at the time of arraignment. However, the record does reflect that defendant was at no time represented by counsel subsequent to his arraignment and through his trial. Likewise, there was no express waiver of counsel and no inquiry by the court to the defendant as to his desire to waive counsel. The trial court did not appoint The Legal Aid and Defender Society or Mr. Kura to represent defendant, although Mr. Kura reminded the court on several occasions that he had not been appointed as counsel. While the defendant indicated he did not want to be represented by legal aid, he at no time indicated that he did not want to be represented by counsel. The record does not indicate that the trial court informed defendant of his right to counsel and of his right to represent himself, and that if he wished to be represented by appointed counsel it would be required that his counsel be The Legal Aid and Defender Society. While not directly applicable, because it did not take effect until after the trial in this case, Crim. R. 44 provides that: *Page 173 "(A) Where a defendant charged with a serious offense is unable to obtain counsel, counsel shall be assigned to represent him at every stage of the proceedings from his initial appearance before a court through appeal as of right, unless the defendant, after being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily waives his right to counsel. * * * "(C) Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22. In addition, in serious offense cases the waiver shall be in writing. "(D) The determination of whether a defendant is able or unable to obtain counsel shall be made in a recorded proceeding in open court." With the exception of the requirement of paragraph (D) and the requirement that waivers be in writing, Crim. R. 44 merely restates the law as we understand it to have been prior to the adoption of that rule. The record in this case does not reflect that the trial court fully advised defendant of his right to assigned counsel, or that trial court made an inquiry as to whether defendant knowingly, intelligently and voluntarily waived his right to counsel. Such cannot be assumed from a silent record. Accordingly, the fourth assignment of error is well taken. The fifth assignment of error is also well taken. While the trial court was faced with a very vexing situation and an obstreperous defendant who did not wish to go to trial, and one who, it had been suggested, was insane, and whose conduct during the trial would indicate that either he was incapable of defending himself or was not willing to do so, it instructed him that he was required to remain silent except when addressed by the court or the attorneys. The only other step that the trial court took was to have a legal aid attorney present in the courtroom. When the defendant made statements concerning himself which he clearly should not have made during what was supposed to be cross-examination of a witness, the trial court took no steps whatsoever to see to it that defendant was advised of any *Page 174 of his constitutional rights or that he understood them. The trial court was confronted with a situation of a defendant who was either incapable of conducting a proper defense, whether because of mental incapacity or lack of understanding, or one who very cleverly attempted to disrupt his trial so that he would not receive a fair trial. When confronted with such a situation, it is the responsibility of the trial court to make an inquiry, out of the presence of the jury, as to which situation is involved, make a determination thereof, and take the appropriate steps to insure that both the defendant and the state receive a fair trial. See new Crim. R. 43 (B). The fifth assignment of error is well taken. The sixth assignment of error is also well taken. While defendant did indicate that he would like to subpoena ten people and that he had the names and addresses of them, and the trial court stated "the court has already handled this part of the case," this does not establish a denial of compulsory process. Any problem in this regard would have been solved by the appointment of counsel for the defendant, an adequate inquiry into the waiver of counsel by defendant, proper advice by the court to defendant as to his rights, and a determination as to whether defendant understood his rights and could and did knowingly and intelligently waive them. The trial court made no such determination, at least no such determination is reflected on the record, and this court is unable from the record to determine whether or not defendant was advised of his rights, understood them, and knowingly and intelligently waived them. Had such determinations been made adverse to the defendant, there would be no abuse of discretion on the part of the trial court in denying a continuance at the close of the state's case, for the purpose of subpoenaing witnesses who had not previously been subpoenaed, when the request was first made at the conclusion of the state's case. However, defendant was not represented by counsel from the time of the arraignment through his trial, and there is no indication in the record that defendant at any time was *Page 175 afforded any opportunity to subpoena witnesses in his own defense. Rather, the record indicates that defendant was incarcerated pending trial and defendant himself stated, which is uncontroverted, that he was not allowed to contact anyone. The record does reflect that defendant refused to be represented by The Legal Aid and Defender Society. The following occurred during cross-examination by the state: "Q. Mr. Jackson, isn't it a fact that Mr. Kura of the Legal Aid and Defenders Society has been sitting next to you and available for you to speak with and you have refused to speak with him? "A. That is right, because everything has been cut off over there at the County. I can't get in touch with nobody. "Q. Have you in fact sought the advice of Mr. Kura? "A. I refuse his representation. "MR. SALIMBENE: Thank you. I have no further questions. "THE DEFENDANT: I want my personal representative. I don't want no public defender. "THE COURT: Very well." In summary, this was a unique case, a perplexing, vexing and difficult situation for a trial judge. On one hand, the trial court cannot permit a defendant to avoid trial by obstructive tactics. However, where there is an indication to the trial court that the obstructive tactics of the defendant may be the result of a lack of mental capacity rather than an intelligent design, the trial court has a duty to protect the defendant from his own incapacity to properly defend himself, including the appointment of counsel over the protestations of defendant, when appropriate. Counsel has also brought the fact of the filing of a motion for new trial in the trial court upon the grounds of newly discovered evidence to the attention of this court. However, such matters are for the determination of the trial court in the first instance, and are not properly before the court, and have been given no consideration by the court in its examination of this appeal. For the foregoing reasons, the first, second, fourth, *Page 176 fifth and sixth assignments of error are sustained, and the third assignment of error is overruled; and the judgment of the Franklin County Court of Common Pleas is reversed. This cause is remanded to that court for further proceedings in accordance with law. Judgment reversed and cause remanded. TROOP, P. J., and STRAUSBAUGH, J., concur.

2016-07-06 06:36:55.065969+00

Gbiffith

An affidavit was filed in the Municipal Court of Warren by a deputy sheriff charging the defendant with the crime of receiving stolen property. He moved for dismissal of the affidavit for the reason that the court had no jurisdiction, and demurred to it for the reason that the affidavit did not charge an offense. A preliminary hearing was had. It appears from the bill of exceptions that there may be merit to defendant's contention that the court has over-reached its jurisdiction and also some question as to the sufficiency of the affidavit. At the conclusion of the hearing, the judge overruled his demurrer and his motion to set aside the affidavit, bound him over to the grand jury, and fixed bond. This appeal on questions of law is from the action of the judge of the Municipal Court in overruling defendant's demurrer and motion. The question presented is whether the action of the judge is a final order from which an appeal may be taken. Defendant contends that it is clearly apparent that the Municipal Court was without jurisdiction, that jurisdiction is a matter that may be raised at any time and he has raised it at the earliest possible opportunity, and that the order binding him over to the grand jury is wholly illegal. Section 2953.02, Revised Code, provides that appeals may be taken from the Municipal Court to the Court of Appeals in criminal cases. It provides for a review of "a judgment or final order of a court * * * inferior to the Court of Appeals." Section 2505.02, Revised Code, defines a final order as follows: "An order affecting a substantial right in an action which in effect determines the action and prevents a judgment * * *." The principle applicable is stated in Hoffman v.Knollman, 135 Ohio St. 170, 181, 20 N.E.2d 221, wherein it held: "Though this court has interpreted the term `judgments' *Page 416 so as to include `final orders,' it has limited its application to acts or decrees of the court which give final effect to the central purpose or some independent branch of the litigation, finality being the touchstone in the determination of that quality." We think the rule of law applicable to the case at bar is well stated in State v. Miller, 96 Ohio App. 216,121 N.E.2d 660, where it is held that an order overruling a motion to dismiss an indictment is not a final order from which an appeal may be taken. In State v. Himlerick, 100 Ohio App. 476,137 N.E.2d 297, the court uses the following language in the syllabus: "1. An appeal on questions of law does not lie in a criminal action before final judgment in such case. "2. The ruling of a trial court in a criminal action sustaining a demurrer to a defendant's plea in abatement is interlocutory and lacks finality: and an appeal may not be taken therefrom until after judgment and sentence." The action on the part of the judge in overruling the demurrer and the motion had none of the attributes of a final order or judgment. It was merely preliminary to a criminal proceeding. Our conclusion is that the action of the Municipal Court in overruling the defendant's demurrer to the affidavit and in overruling his motion to dismiss the affidavit is interlocutory and lacks finality; that there is no notice of appeal from a final order in the trial court and nothing before us to consider and determine. We, therefore, dismiss the attempted appeal at costs of the defendant, appellant herein, and remand the cause to the Municipal Court. Appeal dismissed. NICHOLS, P. J., and PHILLIPS, J., concur. *Page 417

2016-07-06 06:36:56.2+00

Valen

{¶ 52} I concur with the majority's decision affirming appellant's conviction for disorderly conduct and resisting arrest, but I cannot agree with and must dissent from the majority's analysis in reversing appellant's conviction for obstructing official business. {¶ 53} Middletown City Ordinance 606.14 provides that: {¶ 54} "(a) No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties."[2] {¶ 55} The "act" is the first prong of the ordinance and must occur before the element of "purpose" is decided. "Act" refers to the conduct of hampering or impeding lawful duties. See State v.Cobb, Montgomery App. No. 19474, 2003-Ohio-3034, at ¶ 8. The "purpose" related in the ordinance is to prevent, obstruct or delay the performance by a public official of any authorized act within the public official's capacity. Id. {¶ 56} Appellant specifically targeted the "act" portion of the ordinance, arguing that "doing nothing or refusing to cooperate with law enforcement" was not a violation of the ordinance. The majority apparently agrees with this argument. {¶ 57} I write to dissent because I believe the majority too narrowly defines the term "act," when they simply require some form of an overt act. {¶ 58} Black's Law Dictionary, 6th Edition, defines "act" under the subsection criminal act: "* * * an omission or failure to act may constitute an act for the purpose of criminal law." Therefore, "act" could encompass overt acts or acts of omission. *Page 575 {¶ 59} Appellant's decision not to provide any other form of identification or cooperate with the police officers obviously delayed and hampered the officers in their investigation to determine whether appellant was the individual who should be issued a citation. {¶ 60} While I find that there was an "act" of hampering or impeding lawful duties, it is a close call on whether there was the requisite "purpose." If the majority had presented an analysis finding that no purpose had been shown to prevent, obstruct, or delay by appellant's conduct, a dissent might not be necessary. However, I must respectfully dissent from the majority's decision that simply requires an overt act before it considers the rest of the language of the ordinance. 1. We note that though appellant was convicted of two minor misdemeanor counts of "animals running at large," MCO 618.01 states that the offense is a fourth-degree misdemeanor. Therefore, regardless of R.C. 2935.26(A), Officer Quick could have arrested appellant because he had probable cause to believe appellant committed this fourth-degree misdemeanor offense. See R.C. 2935.03(A). 2. MCO 606.14 is identical to Ohio Revised Code 2921.33(A).

2016-07-06 06:36:53.542244+00

OPINION. Having been initially convicted of six charges of cruelty to animals, in violation of R.C. 959.13(A)(1), misdemeanors of the second degree, defendant-appellant Anita Bybee appeals from the trial court's order committing her to five hundred and forty days of home incarceration for violating probation by failing to make restitution payments in excess of $117,625 to the SPCA. She challenges the sentence imposed, contending that (1) the trial court was without authority to impose restitution to the SPCA for a misdemeanor conviction; and (2) consecutive sentences were erroneously imposed in contravention of R.C. 2941.25, because the six convictions involved allied offenses of similar import. Despite the fact that the trial court's sentence was well intentioned, we must reverse its order of restitution because it was an invalid condition of probation, and we must further vacate the sentences because they were impermissibly imposed for allied offenses of similar import. The charges stemmed from the deplorable condition of dogs found in the abysmally filthy kennel operated by Bybee, a sixty-eight-year-old widow, and her daughter. Accordingly, local law-enforcement officials and the Hamilton County SPCA confiscated one hundred eighty-eight dogs that were badly matted, undernourished, and neglected. On July 7, 1995, following Bybee's pleas of no contest, the trial court sentenced her to ninety days' home incarceration, a seven-hundred-and-fifty-dollar fine, and costs on each of the six complaints charging her with cruelty to animals in violation of R.C. 959.13(A)(1). The trial court suspended execution of the sentence, placed Bybee on five years' probation, and ordered her to pay the fines and costs through the probation department. Before sentence was imposed, the prosecutor informed the trial court that the SPCA had incurred costs to board Bybee's dogs in the amount of $1,104 per day for one hundred twelve days, totaling $131,261.50. As one of the conditions of probation, the trial court ordered Bybee to reimburse the SPCA for the expenses remaining after the sale of the dogs. A year later, on June 28, 1996, Bybee filed a motion requesting clarification of the order of restitution, because the probation department was demanding, in addition to $4,500 in fines, payment of restitution to the SPCA in the sum of $117,625.97. At the hearing on the motion, defense counsel told the trial court that while Bybee's real property was worth $450,679, the Small Business Administration had a lien against it for $288,479. He further advised the court that there were no prospective buyers. The trial court continued the hearing to August 6, 1996, to allow defense counsel to negotiate an amount for a second mortgage or to agree to a means for payment of restitution. When Bybee next appeared with her counsel, the trial court ordered her to give the SPCA a note and mortgage in the sum of $117,625. On October 16, 1997 the probation department filed a complaint asking the trial court to violate Bybee's probation for "[f]ailure to pay fine and cost as scheduled — Balance Due $802.00. Failure to report as scheduled." Bybee entered a not-guilty plea, but stipulated the facts at the revocation hearing held on July 17, 1998. Her probation officer stated that the probation department had calculated her payments toward fines and restitution at $2,557.08 per month. After thirty-six months, according to the probation officer, Bybee had paid only $1,243. Bybee told the trial court that her only income was $485 per month from social security, from which she paid $250 per month to her daughter for rent. The trial court found Bybee guilty of the violation, terminated her probation, committed her to home incarceration on the six ninety-day prison terms, to run consecutively, and remitted the unpaid fines. In her first assignment of error, Bybee argues that the trial court erred in revoking her probation on the basis of her failure to comply with what she asserts was an unlawful order to pay restitution. Bybee first contends that the trial court was without statutory authority to order restitution. In response, the state relies on State v. Sheets (1996), 112 Ohio App. 3d 1,677 N.E.2d 818, from the Fourth Appellate District, in which the court affirmed the surrender of, but not the restitution for the expenses for maintaining, a number of horses as a condition of probation, because the surrender was reasonably related to preventing future criminality. While trial courts are given broad discretion in defining conditions for the probation of a criminal defendant, where the legislature has provided a statutory remedy, the court must adhere to the conditions necessary for its imposition. See State v.Beasley (1984), 14 Ohio St. 3d 74, 75, 471 N.E.2d 774, 775. We have previously held that a special condition of probation that required a defendant convicted of felony domestic violence to execute a quitclaim deed to the victim, who jointly owned the property, exceeded the court's jurisdiction when the sanction wasnot provided by law. See State v. Mueller (1997), 122 Ohio App. 3d 483,702 N.E.2d 139. A trial court may order restitution pursuant to R.C.2929.21(E), which states: The court may require a person who is convicted of or pleads guilty to a misdemeanor to make restitution for all or part of the property damage that is caused by the offense or for all or part of the value of the property that is the subject of any theft offense * * *." This same restrictive language is repeated in R.C.2951.02(C)(1)(a), which identifies the criteria for the suspension of a sentence in a misdemeanor prosecution. The Eleventh Appellate District has held that ordering a defendant convicted of cruelty to animals to make restitution to a humane society for its expenses in caring for animals that had been removed from the defendant's home did not constitute "property damage" under R.C. 2929.21(E) and was invalid. State v.Orr (1985), 26 Ohio App. 3d 24, 498 N.E.2d 181. Similarly, inState v. Hileman (1998), 125 Ohio App. 3d 526, 708 N.E.2d 1078, the Twelfth Appellate District held that it was error to order restitution to a humane society. We agree with and adopt the reasoning enunciated in these cases: expenses incurred in caring for animals removed from Bybee's kennel was not property damage as defined in R.C.2929.21(E), and the trial court erred in ordering restitution to the SPCA for those costs as a condition of probation. This holding, however, has no effect on the SPCA's ability to receive fines collected pursuant to R.C. 959.13. The SPCA also has recourse, by means of a civil action, for its expenses related to the care of the dogs. We further agree with Bybee's second contention that the trial court's order to pay restitution of $117,625.07 to the SPCA was an in personam criminal forfeiture amounting to an excessive fine under the Eighth Amendment to the U.S. Constitution. The state's brief neglects to address this issue. An in personam criminal forfeiture is an action against a person whereas an in rem forfeiture is an action against the property itself. An in personam criminal forfeiture is a form of punishment that does not differ from a fine. See Alexander v.United States (1993), 509 U.S. 544, 558-559, 113 S. Ct. 2766,2775-2776; United States v. Wild (C.A.4, 1994), 47 F.3d 669, 674. "In personam forfeitures involve "assessments, whether monetary or in kind, to punish the property owner's criminal conduct." Austinv. United States (1993), 509 U.S. 602, 624, 113 S. Ct. 2801, 2813 (Scalia, J., concurring). Writing for the court in State v.Ziepfel (1995), 107 Ohio App. 3d 646, 669 N.E.2d 299, Judge Painter undertook an exhaustive analysis of the federal approach to and treatment of in rem forfeitures and criminal in personam forfeitures, as well as how the Ohio Supreme Court views the test of constitutionality for forfeitures under the Ohio Constitution. See State v. Hill (1994), 70 Ohio St. 3d 25, 635 N.E.2d 1248. In Wild, supra, at 676, the Fourth Circuit Court of Appeals said: [I]n personam criminal forfeitures * * *, which operate on the premise that the property being forfeited was obtained independent of any illegal activity, are subject to an excessiveness inquiry. That inquiry essentially asks whether the value of the property being forfeited is an excessive monetary punishment in relation to the offense giving rise to the forfeiture. In other words, the excessiveness inquiry turns on whether the government can exact a fine in the amount of the forfeiture in light of the defendant's conduct and the offense committed. The inquiry beckons a comparison of the value of the property being forfeited to the gravity of the offense committed by the defendant and the nature and extent of the defendant's activities. Although the trial court did not order the restitution of $117,625.09 pursuant to a statute, as is the case of the usual forfeiture, we hold that its order has all the badges of a criminal in personam forfeiture subject to the Excessive Fines Clause of the Eighth Amendment. Accordingly, even if our holding was otherwise with respect to the validity of restitution as a condition of probation, we would be required to remand this case to the trial court for an assessment of the proportionality of the forfeiture under the guidelines outlined in Ziepfel, supra, at 652-653, 669 N.E.2d at 303. The first assignment of error is sustained. In her second assignment of error, Bybee argues that the six convictions for cruelty to animals involved allied offenses of similar import and that, therefore, the trial court's imposition of multiple sentences was precluded by R.C. 2941.25. Although Bybee raises this issue for the first time on appeal from the order revoking her probation, we, nevertheless, have jurisdiction to review a sentence initially suspended but subsequently given effect at a revocation hearing. See, e.g., State v. McMullen (1983), 6 Ohio St. 3d 244, 452 N.E.2d 1292. Furthermore, we have discretion to review Bybee's multiple sentences under a plain-error analysis pursuant to Civ.R. 52(B). See State v.Fields (1994), 97 Ohio App. 3d 337, 646 N.E.2d 866. A two-step inquiry determines if offenses are allied and of similar import: (1) do the elements of the offenses correspond to such a degree that commission of one results in commission of the other; and (2) were the offenses part of the same conduct, or was there a separate animus for each crime? Id. at 249, 656 N.E.2d at 1361. Bybee's essential concern is that, by giving out six sentences, the trial court imposed multiple punishments for one offense in violation of the Double Jeopardy Clause. NorthCarolina v. Pearce (1969), 395 U.S. 711, 717, 89 S. Ct. 2072, 2076;State v. Thomas (1980), 61 Ohio St. 2d 254, 260, 400 N.E.2d 897,902. Here, the six charged offenses satisfy the first step of the analysis requiring comparison of the statutory elements "in the abstract," as the elements of cruelty to animals charged in each complaint were identical. State v. Rance (1999), 85 Ohio St. 3d 632,710 N.E.2d 699, paragraph one of the syllabus. Although each charge related to a different dog, Bybee's offenses were part of the same continuing pattern of neglect and did not rely on a distinct abusive act for each dog. As we have previously stated, "the crimes were not committed with separate conduct" sufficient to satisfy the second step of the analysis. State v. Williams (Dec. 31, 1996) Hamilton App. No. C-960070, unreported. Therefore, we hold that Bybee's six convictions for cruelty to animals involved allied offenses of similar import and must be merged into one conviction. While the trial court can find her guilty of the six offenses, it should have sentenced her only on one. The second assignment of error is sustained. Therefore, we reverse the trial court's order revoking Bybee's probation, vacate the multiple sentences imposed as part of the original convictions, and remand these causes to the trial court for resentencing in accordance with law and consistent with this Opinion. Judgment accordingly. Doan, P.J., and Painter, J., concur. Please Note: The court has placed of record its own entry in this case on the date of the release of this Opinion.

2016-07-06 06:36:53.58435+00

OPINION Appellant/Cross-Appellee Cynthia Muzechuk ("Cynthia") appeals the decision of the Court of Common Pleas, Tuscarawas County, which granted her a divorce from Appellee Thomas Muzechuk ("Thomas"), who has cross-appealed the same decision. The relevant facts leading to this appeal and cross-appeal are as follows. Cynthia and Thomas were married in August 1980. Two children were born as issue of the marriage, both of whom are still minors. On January 3, 2000, Cynthia filed a complaint for divorce. Thomas thereafter filed an answer and counterclaim. The parties reached partial settlement, including reaching an agreement on shared parenting, leaving the issues of child support, spousal support, and non-real personal property division for resolution by the court. During the trial on said issues on August 18, 2000, set before the magistrate, both Cynthia and Thomas testified, as well as appraiser Don Wallick, a professional auctioneer. Wallick testified that he focused more on the real estate valuation which Thomas asked him to complete, and the personal inventory he took was "really a very basic highlight of what I looked at." Tr. at 54. On September 6, 2000, the magistrate recommended child support of $338.56 per month for both children ($345.33 including processing fees), spousal support of $400 per month for five years, and held as follows regarding personal property division: 12. As Plaintiff took with her when she vacated the marital residence those items which she wanted at that time, and has not requested any other items other than the Compaq computer, each party should retain that personal property currently in his/her possession, with the exception that Plaintiff should be entitled to the Compaq computer, one-half of the videos, one-half of the photos, one-half of the Christmas items, one-half of the coin proof sets, one-half of the nicknacks, and the Pfaltzgraff dishes and accessories. Further, Defendant should ensure that the minor children receive the pewter dishes. The undersigned finds this division to be fair given that plaintiff is not requesting any of the household furniture remaining at the marital residence, Plaintiff already removed those items which she wanted in June, 1999, and the relative age and the probable low resale value of these used household furnishings. The undersigned specifically finds that a sale of all of the items currently in Defendant's possession would lead to an inequitable result. Magistrate's Decision at 9. Cynthia and Thomas each filed timely objections to the magistrate's decision. Oral arguments followed on January 2, 2001. The trial court issued a judgment entry on August 17, 2001, adjusting child support to $202.03 per month for both children ($206.07 including processing fees), effective January 1, 2001, leaving spousal support at the magistrate's recommendation of $400 per month, but setting the commencement date at January 1, 2001, and essentially reiterating the magistrate's decision regarding personal property, except to direct the ownership of the Compaq computer to Thomas. Cynthia filed her notice of appeal on September 7, 2001, and herein raises the following two Assignments of Error: I. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE PLAINTIFF-APPELLANT IN CALCULATING CHILD SUPPORT FOR THE TWO MINOR CHILDREN WHEREBY SHE REDUCED THE AMOUNT PAYABLE FROM APPELLEE TO APPELLANT UNDER THE SHARED PARENTING PLAN TO THE AMOUNT OF $206.07 PER MONTH TOTAL FOR TWO CHILDREN. II. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO APPELLANT WHEN THE TRIAL COURT DID NOT ORDER THE PERSONAL PROPERTY OF THE PARTIES SOLD OR TO REQUIRE APPELLEE TO PURCHASE APPELLANT'S SHARE OF THE HOUSEHOLD GOODS AND FURNISHINGS. Thomas raises the following four Assignments of Error on cross-appeal: I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED PAYMENT OF SPOUSAL SUPPORT FOR A PERIOD OF FIVE YEARS IN THE AMOUNT OF $400 PER YEAR CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES. II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED THAT SPOUSAL SUPPORT IN THE AMOUNT OF $400 FOR FIVE-YEARS SHALL BEGIN EFFECTIVE JANUARY 1, 2001. III. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO CROSS APPELLANT WHEN IT FAILED TO INCLUDE COURT ORDERED SPOUSAL SUPPORT IN THE PARTIES' GROSS INCOMES. IV. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE CROSS APPELLANT WHEN IT FAILED TO PROPERLY CALCULATE ACROSS APPELLANT'S INCOME ON THE CHILD SUPPORT WORKSHEET. Cynthia's Appeal I In her First Assignment of Error, Cynthia challenges the trial court's calculation of child support. Cynthia does not dispute the calculation of her annual income at $17,160, or of Thomas' at $42,539. Instead, she contends the methodology utilized by the trial court in calculating shared-parenting child support constituted an abuse of discretion. We disagree. This court has previously taken note of the "meager nature" of legislative directive in specifically addressing "50/50" shared parenting support orders under former R.C. 3113.215. See French v. Burkhart (May 22, 2000), Delaware App. No. 99CAF07038, unreported. The Ohio Supreme Court in Hubin v. Hubin (2001), 92 Ohio St. 3d 240, recently addressed the issue again. The question certified to the Supreme Court was as follows: "When determining the proper amount of child support in a shared parenting case, must a court presume that each parent must pay his or her child support obligation on line twenty-four of the child support worksheet and then order the difference through an offset while reserving the ability to deviate?" See Hubin v. Hubin (2000), 90 Ohio St. 3d 1482. The Court ultimately affirmed the Tenth District Court of Appeals decision, citing Pauly v. Pauly (1997), 80 Ohio St. 3d 386, which held: "R.C. 3113.215(B)(6) does not provide for an automatic credit in child support obligations under a shared parenting order. However, a trial court may deviate from the amount of child support calculated under R.C.3113.215(B)(6) if the court finds that the amount of child support would be unjust or inappropriate to the children or either parent and would not be in the best interest of the child." Id. at syllabus. In the case sub judice, the parties' combined child support obligation worked out to $11,403.28. Of this, Thomas, who earned 71% of the combined incomes, incurred an obligation of $8125.98, prior to any deviation. The court found as grounds for deviation on the worksheet that "[b]oth Plaintiff and Defendant must have 50% of the annual amount of child support as both children reside in each household 50% of the time." The court thus found it appropriate to subtract 50% of parties' combined child support obligation of $11,403.28, or $5701.64, from Thomas' obligation of $8125.98, for a final figure of $2424.34, or $206.07 per month after adding processing fees. In Booth v. Booth (1989), 44 Ohio St. 3d 142, the Supreme Court of Ohio determined an abuse of discretion standard is the appropriate standard of review in matters concerning child support. In order to find an abuse of that 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. We find under the facts of the case sub judice that the trial court acted within its discretion, pursuant to Hubin and Pauly, in establishing child support under the parties' shared parenting arrangement. Cynthia's First Assignment of Error is overruled. II In her Second Assignment of Error, Cynthia contends that the trial court erred in formulating a division of personal property. We initially note that Cynthia's Civ.R. 53 objection, in regard to property division, merely states "[t]he division of furniture and appliances is not fair and equitable." Cynthia now seeks to challenge the division of all "household goods." Civ.R. 53(E) requires the objections be specific. North v. Murphy (March 9, 2001), Tuscarawas App. No. 2000AP050044, unreported. Thus, we are inclined to dismiss as waived her present challenge concerning the appraiser's failure to estimate the value of "things in the basement," and tools and equipment in the shed and garage, as well as other smaller items. In regard to the furniture, we note the appraiser estimated that the refrigerator, a range, marital bedroom suite, kitchen table and chairs, sofa, chairs, two end tables, and computer equipment, all of which were left with Thomas, had a total value of $1235. We generally review the overall appropriateness of the trial court's property division in divorce proceedings under an abuse of discretion standard. Cherry v. Cherry (1981), 66 Ohio St. 2d 348. Although Cynthia estimated the personal property left behind at $15,000, as we have often reiterated, the trier of fact, as opposed to this Court, is in a far better position to weigh the credibility of witnesses. State v. DeHass (1967), 10 Ohio St. 2d 230. Furthermore, during the trial Cynthia inferred that she had already taken the items she wanted to keep. Tr. at 27. The trial court did not abuse its discretion in its division of property. Cynthia's Second Assignment of Error is overruled. Thomas' Cross-Appeal I In his First Assignment of Error on cross-appeal, Thomas argues that the award of spousal support was an abuse of discretion. We disagree. A trial court's decision concerning spousal support may only be altered if it constitutes an abuse of discretion. Kunkle v. Kunkle (1990),51 Ohio St. 3d 64, 67. A trial court abuses its discretion when, in addition to making an error of law or judgment, it acts with an unreasonable, arbitrary, or unconscionable attitude. Blakemore, supra, at 219. R.C. 3105.18(C)(1)(a) thru (n), provides the factors that a trial court is to review in determining whether spousal support is appropriate and reasonable and in determining the nature, amount, terms of payment, and duration of spousal support. R.C. 3105.18(C)(1) provides: (C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors: (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code; (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; (j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party; (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each party, of an award of spousal support; (m) The lost income production capacity of either party that resulted from that party's marital responsibilities; (n) Any other factor that the court expressly finds to be relevant and equitable. The record reveals that Cynthia was born in 1959, while Thomas was born in 1955. Their marriage lasted approximately twenty years. Cynthia is employed as a deputy clerk of courts, with sporadic part-time hours as an assistant at the YMCA. Her clerk job pays $8.25 per hour. Her education level is high school graduate. She had worked previously at General Electric, leaving employment in 1986, when the parties' first child was born. She was earning $9.00 per hour at that time. The parties decided that Cynthia would stay home to take care of the family and household, while Thomas would work outside the home full-time. Thomas, who completed some college work, is employed by a steel company, earning $16.23 per hour plus overtime. There was no evidence presented of any health problems. Thomas contends in his brief that since both parties are only in their forties and in good health, and that Cynthia has chosen to work in the public sector, where he alleges lower pay is balanced against better benefits, the spousal support award was unreasonable. However, upon full review of the record in this matter, we are unpersuaded that the award constituted an abuse of discretion by the trial court. Thomas' First Assignment of Error on cross-appeal is overruled. II In his Second Assignment of Error on cross-appeal, Thomas argues that the trial court abused its discretion in setting the spousal support commencement date at January 1, 2001. We disagree. Thomas contends that the commencement date was completely arbitrary, and no recognition was granted for his payments made during the temporary orders or the period of time after the trial before the magistrate in August 2000. A trial court's selection of a commencement date for spousal support is also subject to an abuse of discretion standard of review. See, e.g., Guenther v. Guenther (Feb. 4, 2000), Butler App. No. CA2001-04-072, unreported. Here, the magistrate's decision indicated spousal support would commence "effective the first month following the filing of the Judgment Entry which approves or modifies this Magistrate's Decision." The trial court heard arguments on the objections on January 2, 2001, even though a decision was not forthcoming for seven months thereafter. Nonetheless, it appears the court was relating the commencement date back to the date she heard the objections, and we are thus unable to conclude that the court thereby acted in an unreasonable, arbitrary, or unconscionable fashion. Thomas' Second Assignment of Error on cross-appeal is overruled. III In his Third Assignment of Error on cross-appeal, Thomas argues that plain error resulted from the trial court's failure to adjust for spousal support on the child support guideline worksheet, pursuant to the statutory changes which were in effect by the time the court issued its judgment entry. We disagree. Pursuant to the revised child support guideline worksheet in R.C.3119.022, line 6 requires a party to include under "other annual income" the amount of spousal support actually received. See, also, R.C.3119.01(C)(7). In addition, a party may obtain an adjustment to income on line 10 for spousal support paid to any spouse or former spouse. These changes to the worksheet took effect on March 22, 2001, as part of S.B. 180. Prior thereto, R.C. 3113.215 did not include spousal support from the other party to the proceeding as income, and one could obtain an income adjustment for payment of spousal support only if the payee was a "former spouse." As hereinbefore noted, Cynthia and Thomas both filed Civ.R. 53 objections in September, 2000. Oral arguments regarding the objections were heard on January 2, 2001. S.B. 180 was enacted thereafter but prior to the August 17, 2001 filing of the judgment entry under appeal, while the matter was under advisement by the trial court. Child support statutes are generally recognized as remedial rather than substantive. See Swanson v. Swanson (1996), 109 Ohio App. 3d 231, 235. Being remedial in nature, such statutes may be applied retroactively without violating the constitutional prohibition against retroactive laws. Bielat v. Bielat (2000), 87 Ohio St. 3d 350. Nonetheless, when reviewing child-support matters, an appellate court applies an abuse-of-discretion standard. See Booth, supra. We are not persuaded herein that the trial court's decision to utilize the "old" guideline methodology under the circumstances of this case amounted to either an abuse of discretion or plain error. Civ.R. 53(E)(4)(b) specifies that upon objection to the magistrate's decision, "[t]he court may adopt, reject, or modify the magistrate's decision, hear additional evidence, recommit the matter to the magistrate with instructions, or hear the matter." If the court has the power to review and adopt the magistrate's decision, it would follow that the court likewise has the power to affirm the application of the law in effect both at the time the magistrate rendered her decision and at the time the objection came on for hearing. The trial court in the case sub judice did not err in failing to adjust for spousal support on the child support guideline worksheet. Thomas' Third Assignment of Error on cross-appeal is overruled. IV In his Fourth Assignment of Error on cross-appeal, Thomas argues that the trial court erred by failing to separate his overtime income from his regular income. Both the "old" and "new" versions of the child support worksheet call for an overtime averaging method in calculating annual income. See R.C. 3113.215; R.C. 3119.022. However, our review of both Thomas' Civ.R. 53 objection and his memorandum in support does not indicate that this issue was brought to the attention of the trial judge. The only challenge to the magistrate's income calculations were in the context of spousal support. The "overtime averaging" issue is not mentioned. Civ.R. 53(E)(3)(a) provides that a party may, if it so desires, file objections to a magistrate's decision within fourteen days of the filing of the decision. Civ.R. 53(E) requires the objections be specific. North v. Murphy (March 9, 2001), Tuscarawas App. No. 2000AP050044, unreported. Further, Civ.R. 53(E)(3)(b) provides that "[a] party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule." See, e.g., Stamatakis v.Robinson (January 27, 1997), Stark App. No. 96CA303, unreported;Kademenos v. Mercedes Benz of North America, Inc. (March 3, 1999), Stark App. No. 98CA50, unreported. See, also, Staff Notes to Civ.R. 53(E)(3)(b) (stating that "the rule reinforces the finality of trial court proceedings by providing that failure to object constitutes a waiver on appeal of a matter which could have been raised by objection"). We therefore find that Thomas has waived his right to argue this issue on appeal. We are further disinclined to apply any "plain error" review to appellant's arguments. See Goldfuss v. Davidson (1997),79 Ohio St. 3d 116, 122. Thomas' Fourth Assignment of Error on cross-appeal is therefore overruled. For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Tuscarawas County, Ohio, is hereby affirmed. By: WISE, P.J. EDWARDS, J., and BOGGINS, J., concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Tuscarawas County, Ohio, is affirmed. Costs to be split evenly between appellant and appellee.