[Cite as Windsor Med. Ctr., Inc. v. Time Warner Cable, Inc. , 2021-Ohio-158.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

WINDSOR MEDICAL CENTER, INC. JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delane y , J. Hon. Crai g R. Baldwin, J. -vs- Case No. 2020CA00085 TIME WARNER CABLE, INC. DBA SPECTRUM BUSINESS, ET AL Defendants-Appellants O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2018CV02199

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: Januar y

20, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

SCOTT P. SANDROCK ROBERT W. BURGER ELIZABETH SHIVELY BOATWRIGHT CAITLIN R. THOMAS Brennan, Manna & Diamond, LLC Thompson Hine, LLP 75 E. Market Stree t 3900 Ke y Cente r Akron, Ohio 44308 127 Public Square Cleveland, Ohio 44114Stark Count y , Case No. 2020CA00085 2

Hoffman, P.J. {¶1} Defendants-appellants Time Warner Cable, Inc, dba Spectrum Busi ness, et al. (“Spectrum”) appeal the February 12, 2020 Judgment Entry en tered by the Stark County Court of Common Pleas, which denied their motion for jud gment notwithstanding the verdict. Plaintiff-appellee is Windsor Medical Center, Inc . (“Windsor Medical”).

STATEMENT OF THE FACTS AND CASE {¶2} Windsor Medical is a family-owned business, which operates a sk illed nursing and senior living center in North Canton, Stark County, Ohio. Spectrum is engaged in the business of providing telephone, internet, cable , and other technology

services to individuals and businesses. Windsor Medical contra cted with Spectrum to provide telephone, internet, and cable television services for its office and residents. The parties’ business relationship dated back to at least 2012. {¶3} Sometime in 2015, disputes arose between the parties over charg es for

international calls and double billing for internet service. W indsor Medical’s attempts to resolve the disputes were unsuccessful. {¶4} On November 14, 2018, Windsor Medical filed a complaint against Spectrum, asserting claims of fraud and violations of Ohio’s De ceptive Trade Practices Act (R.C. Chapter 4165). Spectrum filed an answer on December 12, 2018. The parties participated in mediation, which proved unsuccessful. A second mediation was scheduled, but ultimately cancelled. {¶5} On October 21, 2019, a week before trial, Spectrum filed a moti on for leave

to file a counterclaim as well as a motion to continue. The tr ial court denied both motions. The matter proceeded to jury trial on October 28, 2019.Stark Count y , Case No. 2020CA00085 3

International Service {¶6} Seth Swallen, who worked in admin istration and information tech nology for Windsor Medical during the time period at issue, testified rega rding the contract negotiations and discussions he had with Spectrum regarding int ernational phone service. When Spectrum’s sales representative Patrick Harrison asked if Windsor Medical wanted Spectrum, Time Warner at the time, to provide lo ng distance and international calls, Swallen expressly declined international s ervice. Harrison advised

Swallen he would make sure international service was not availa ble at Windsor Medical. {¶7} Swallen recalled, in September, 2015, Windsor Medical received a bill from Spectrum which included a charge labeled “international usage” with a service date of August 5, 2015. Swallen immediately contacted Spectrum about t he charge. At Spectrum’s direction, Swallen verified Windsor Medical had take n the appropriate measures with its equipment to prevent international calls. Th e following month, Windsor Medical received a bill from Spectrum which still included the international service charge totaling $7,753.62, with taxes and fees. Swallen contacted Har rison as well as a risk management specialist at Spectrum regarding the bill. Swallen indicated his belief Windsor Medical was owed a credit for the international charges as it had requested the phone service not include an international component. {¶8} Several months later, Spectrum acknowledged it owed Windsor Med ical a credit for the international service charges and such would be forthcoming. Although Windsor Medical remained current on all undisputed charges, it continued to receive past due notices from Spectrum. Swallen made multiple calls to Spec trum, attempting to resolve the issue. He was repeatedly placed on hold and transf erred from oneStark Count y , Case No. 2020CA00085 4

department to another, never speaking to anyone with authority to resolve the matter. On December 28, 2015, Swallen emailed Spectrum regarding the charg es and requesting a manager with authority contact him. A month later, on January 28, 2016, Swallen received an email from Ar’Qua Welch, a collections agent with S pectrum, advising him Spectrum had issued a partial credit of $2,894.99, and a tax cr edit of $743.93. {¶9} On February 4, 2016, Swallen emailed Welch, Harrison, and accou nt representative Armand DiDonato, requesting the balance of the p romised credit for the international charges. Welch responded, explaining she could n ot issue the credit and directed Swallen to another department. The other department w as unable to resolve the issue. Windsor Medical continued to pay all undisputed charges on its accounts. {¶10} On February 11, 2016, Windsor Medical received a notice from Sp ectrum, advising the phone system would be shut off if the remaining ba lance was not paid. Swallen contacted DiDonato, who advised Swallen to pay the bala nce if he did not want Windsor Medical’s service shut off. Swallen paid the balance t o avoid a disruption in phone service. Windsor Medical never received the full promise d credit for the international service charges. {¶11} Subsequently, in January, 2017, Windsor Medical received a bill from Spectrum which included a second international service charge, totaling $3,214.43, with taxes and fees. Windsor Medical contacted Spectrum regarding t he charge. Spectrum advised Windsor Medical to check the security recommendations. Ultimately, Windsor Medical paid the charges to avoid termination of its phone serv ice. Spectrum never

credited Windsor Medical for the second international service c harge.Stark Count y , Case No. 2020CA00085 5

Internet Accounts {¶12} In the fall of 2015, Harrison approached Swallen about moving W indsor Medical’s internet service from a regional account to a nationa l account, promising better internet speed at a lower rate. Swallen accepted the offer and signed a new internet contract in December, 2015. Swallen understood Harrison would have the old service disconnected when the new service was up and running. Although the new service required updated equipment, Harrison promised the switch would be “turnkey” and he would handle everything. {¶13} Harrison never notified Swallen the new service was ready. Wind sor Medical began receiving separate bills for each of the internet accounts. When Swallen

contacted Harrison about the d ouble billing, Harrison informed Swallen he (Swallen) would need to cancel the old account as Harrison was not permit ted to do so. Swallen attempted to cancel the account, but was unsuccessful. The Spe ctrum representative

advised Swallen she could not locate the account with the accou nt number Harrison had provided to Swallen. Meanwhile, Windsor Medical continued to r eceive separate bills for

each of the internet accounts. {¶14} On June 2, 2016, Harrison emailed Swallen, acknowledging there should only be one internet account and inquiring whether Swallen had cancelled the first account. Swallen advised Harrison he was getting the “runaroun d” and had been unable to cancel the account. Harrison put Swallen in touch with DiDo nato. When Swallen and DiDonato met to discuss the situation, DiDonato informed Swalle n Harrison was no longer working for Spectrum and Windsor Medical was not the only busin ess Harrison had convinced to move from regional to national accounts in order t o improve his salesStark Count y , Case No. 2020CA00085 6

numbers. DiDonato apologized and promised to correct the situa tion. In addition, DiDonato, like Harrison, indicated the new service would requir e new equipment. Although Windsor Medical was billed for two internet services, Spectrum never installed the required equipment or updated the service in any manner. {¶15} Almost a year later, in April, 2017, DiDonato emailed Swallen, inquiring

whether Windsor Medical had two internet connections. DiDonato indicated he would have to engage a national account team to resolve the billing i ssue with the second internet account. DiDonato explained the original internet acc ount would need to be

disconnected to avoid double billing and he would get the paper work completed. DiDonato added he “was never notified by anyone that the servic e needed disconnected to prevent double billing.” Tr. Vol. I at 183. {¶16} Despite ongoing discussions to resolve the issues, Windsor Medi cal received multiple threats of termination of phone service from Spectrum. At one point in 2017, a third-party collection agency came to Windsor Medical a nd advised the accounts payable individual the telephone service would be shut off that day if payment was not made. Windsor Medical paid Spectrum $2,165.96, to avoid disrup tion of its phone

service. {¶17} Nonetheless, on May 4, 2017, Spectrum shut off the phone system at Windsor Medical. When Swallen arrived at the facility, he was met with a nursing staff in a state of panic. Nurses were unable to send and receive medic ation and lab orders. Family members of the residents arrived, concerned they were un able to reach their loved ones on the phone. DiDonato event ually returned Swallen’s call s and emails. He stated Windsor Medical’s account was not in a non-pay status and sugge sted Swallen contactStark Count y , Case No. 2020CA00085 7

fiber support. Fiber support indicated the phone system was di sconnected for nonpayment. In a May 5, 2017 email, DiDonato, acknowledging th e corrections which needed to be made on the account, advised Swallen the fastest w ay to restore service was to pay the past due amount. Windsor Medical paid the past due balance. {¶18} Months passed without resolution. Then, in August, 2017, Swall en received an email from Spectrum’s collections department, demanding Wind sor Medical pay $1,129.48, to avoid another phone shut off. {¶19} After hearing all the evidence and deliberating, the jury found in favor of Windsor Medical on its fraud claim. The jury awarded Windsor M edical $22,000.00, in compensatory damages and $225,000.00, in punitive damages. The jury also awarded Windsor Medical reasonable attorney fees. The jury found in fa vor of Spectrum on Windsor Medical's claim for deceptive trade practices. {¶20} On November 25, 2019, Spectrum filed a Motion for Judgment Notwithstanding the Verdict, or, in the alternative, Remittitur . Therein, Spectrum asserted

the economic loss doctrine barred Windsor Medical’s fraud claim as such claim stemmed from Spectrum’s alleged performance or non-performance under th e parties’ contract. Also, on November 25, 2019, Windsor Medical filed a Motion for Prejudgment Interest. {¶21} Via Judgment Entry filed February 12, 2020, the trial court den ied Spectrum’s Motion for Judgment Notwithstanding the Verdict. Th e trial court found a reasonable juror could conclude S pectrum’s conduct went beyond a mere breach of

contract. The trial court further found the economic loss doct rine did not bar Windsor

Medical’s fraud claim. The trial court concluded Windsor Medic al presented sufficientStark Count y , Case No. 2020CA00085 8

evidence to support the jury’s finding of fra ud and to support the jury’s award of punitive damages. {¶22} It is from this judgment entry Spectrum appeals, raising the fo llowing assignment of error:

THE TRIAL COURT ERRED IN DENYING SPECTRUM MIDAMERICA, LLC’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. (FEBRUARY 12, 2 020 JUDGMENT ENTRY.)

STANDARD OF REVIEW {¶23} Civil Rule 50(B) governs motions for judgment notwithstanding t he verdict (JNOV). When ruling on a motion for JNOV, a trial court applies the same test as in reviewing a motion for a directed verdict. Ronske v. Heil Co. , 5th Dist. Stark No. 2006- CA-00168, 2007-Ohio-5417; Pariseau v. Wedge Products, Inc. , 36 Ohio St.3d 124, 522 N.E.2d 511 (1988). In reviewing a motion for JNOV, courts do no t consider the weight of

the evidence or the witness credi bility; rather, courts conside r the much narrower legal question of whether sufficient evidence exists to support the v erdict. Texler v. D.O. Summers Cleaners & Shirt Laundry Co. , 81 Ohio St.3d 677, 693 N.E.2d 271 (1998). In other words, if there is evidence to support the nonmoving part y's side so that reasonable minds could reach different conclusions, the court may not usur p the jury's function and

the motion must be denied. Osler v. City of Lorain , 28 Ohio St.3d 345, 504 N.E.2d 19 (1986). Appellate review of a ruling on a motion for JNOV is de novo. Midwest EnergyStark Count y , Case No. 2020CA00085 9

Consultants, L.L.C. v. Utility Pipeline, Ltd. , 5th Dist. Stark No. 2006CA00048, 2006-Ohio6232.

I. {¶24} Spectrum sets forth three grounds upon which it predicates its assertion the trial court erred in denying its motion for judgment notwithsta nding the verdict. First, Spectrum contends the economic loss doctrine barred Windsor Med ical’s fraud claim as such claim sounded in contract. Next, Spectrum argues, assuming the economic loss doctrine did not bar Windsor Medical’s fraud claim, Windsor Med ical failed to prove the essential elements of fraud. Third, Spectrum maintains the evi dence did not support a finding Spectrum acted with actual malice; therefore, the award of punitive damages was not warranted. We disagree.

Fraud and the Economic Loss Doctrine {¶25} To prevail on a fraud claim, “a plaintiff must prove: (1) a rep resentation, or if a duty to disclose exists, concealment of a fact, (2) that i s material to the transaction at issue, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge m ay be inferred, (4) with the intent to mislead another into relying on it, (5) justifiable r eliance upon the representation or concealment, and (6) a resulting injury proximately caused b y the reliance.” Andrew v. Power Marketing Direct, Inc. , 10th Dist. No. 11AP-603, 978 N.E.2d 974, 2012-Ohio-4371, ¶ 49, citing Burr v. Stark Cty. Bd. of Commrs. , 23 Ohio St.3d 69, 73, 491 N.E.2d 1101 (1986). {¶26} The economic loss rule generally prevents recovery in tort of d amages for purely economic loss. Corporex Dev. & Constr. Mgt., Inc. v. Shook, Inc. , 106 Ohio St.3dStark Count y , Case No. 2020CA00085 10

412, 2005-Ohio-5409, ¶ 6, 835 N.E.2d 701. That is, “a plaintif f who has suffered only economic loss due to another’s negligence has not been injured in a manner which is legally cognizable or compensable.” Id . (Citation omitted.) “The economic-loss rule stems from the principle that, ‘[i]n the absence of privity of contract between two disputing parties the general rule is “there is no * * * duty to exercise reasonable care to avoid intangible economic loss or losses to others that do not arise from tangible physical harm to persons and tangible things.” ’ ” Waverly City School Dist. Bd. of Edn. v. Triad Architects, Inc. , 10th Dist. No. 08AP-329, 2008-Ohio-6917, ¶ 26, quoting Floor Craft Covering, Inc. v. Parma Community Gen. Hosp. Assn. , 54 Ohio St.3d 1, 3, 560 N.E.2d 206 (1990), quoting Prosser & Keeton, Law of Torts, Section 92, 657 (5th Ed.1984). {¶27} There are exceptions, however, to the application of the economic loss rule to bar recovery in tort of purely econom ic loss. A plaintiff may pursue such a tort claim if it is “based exclusively upon [a] d iscrete, preexisting duty in tort and not upon any terms of a contract or rights accompanyin g privity.” Corporex , supra at ¶ 9. These types of exempt claims may include negligen t misrepresentation, breach of fiduciary duty, fraud, and conversion. Potts v. Safeco Ins. Co. , 5th Dist. No. 2009 CA 0083, 2010-Ohio-2042, ¶ 21; Morgan v. Mikhail , 10th Dist. No. 08AP-87, 2008- Ohio-4598, ¶ 69. {¶28} Therefore, a tort claim can proceed where “the facts of the cas e show an intentional tort committed independently, but in connection wit h a breach of contract * *

*.” Burns v. Prudential Securities, Inc., 167 Ohio App.3d 809, 2006–Ohio–3550, ¶ 99. Accordingly, where a tort claim alleges a duty was breached ind ependent of the contract, the economic loss rule does not apply. See, Campbell v. Krupp, 195 Ohio App.3d 573,Stark Count y , Case No. 2020CA00085 11

961 N.E.2d 205, 2011–Ohio–2694, ¶ 16 (6th Dist.) See also, Eysoldt v. ProScan Imaging, 194 Ohio App.3d 630, 2011–Ohio–2359, ¶21 (1 st Dist.) (finding the economic loss rule does not apply to intentional torts, as they are breaches of duties beyond those created by contract). Where the tort claim alleges a breach of an independent duty, it must also allege damages that are separate and distinct from the

breach of contract. Strategy Group for Media, Inc. v. Lowden, 5 th Dist. Delaware No. 12 CAE 03 0016, 2013–Ohio–1330, ¶ 30. {¶29} Spectrum claims Windsor Medical failed to identify a duty separ ate from Spectrum’s contractual obligations. We disagree. While the pa rties were in privity of contract, we find Spectrum breached duties which were independe nt of those contractual obligations. A review of the record, including a reading of t he entire trial transcript, which is summarized below, reveals Spectrum, through its representati ves, engaged in a pattern of misrepresentations, false promises, and threats. {¶30} Despite assurances from Patrick Harrison Windsor Medical’s tele phones would not have international calling capabilities, Spectrum bil led Windsor Medical for international calls in September, 2015. Swallen made exhaustive attempts to resolve the billing issue, but was repeatedly placed on hold or redirected to individuals who did not have authority to help him. Months later Spectrum acknowledged the error and indicated a credit would be forthcoming, however, Spectrum continued to s end past due notices to Windsor Medical. Spectrum eventually issued a partial credit. Swallen’s attempts to obtain the balance of the promised credit was met with the same runaround he previously experienced. Spectrum never fully credited Windsor Medical for the billing error and the amount remained “past due”. In January, 2017, Spectrum again b illed Windsor MedicalStark Count y , Case No. 2020CA00085 12

for international calls. Spectrum failed to resolve the billin g issue and threatened to disconnect phone service if the disputed charge was not paid. Windsor Medical subsequently paid the un-owed past due charges to avoid disrupt ions to its phone service. Spectrum never credited Windsor Medical for these charges. {¶31} In the fall of 2015, Harrison approached Swallen about replacin g Windsor Medical’s internet service, promising better internet speed at a lower rate. Swallen signed a new internet contract in December, 2015. Harrison represente d he would have the old service disconnected when the new service was ready. Harrison never notified Swallen the new service was ready and never disconnected the old servic e. Nonetheless, Spectrum billed Windsor Medical for two separate internet accou nts. When Swallen

contacted Harrison about the do uble billing, Harrison informed Swallen he was not permitted to cancel the account and Swallen would need to do so . Swallen attempted to cancel the account, but the account number Harrison had provide d to Swallen was incorrect. Spectrum continued to double bill Windsor Medical. {¶32} Swallen met with account repres entative Armand DiDonato to disc uss the situation. DiDonato promised to resolve the double billing. A lthough the new service required new equipment, and despite continuing to double bill W indsor Medical, Spectrum never installed the necessary equipment for the new service and never provided Windsor

Medical with a new IP address. {¶33} Inexplicably, almost a year later, DiDonato emailed Swallen, in quiring

whether Windsor Medical had two internet connections . DiDonato represented he would

contact a national account team to resolve the credit issue wit h the second internet account and complete any paperwork necessary to do so. Despite these ongoingStark Count y , Case No. 2020CA00085 13

discussions to resolve the issues, Spectrum issued multiple thr eats of termination of phone service. At one point in 2017, a third-party collection agency came to the facility and advised the accounts payable individual the telephone servi ce would be shut off that day if payment was not received. Windsor Medical paid Spectrum $2,165.96, to avoid any disruptions in its phone service. Spectrum applied the pa yment to the disputed internet account and not the phone service account. {¶34} Subsequently, on May 4, 2017, Spectrum shut off the phone syste m at Windsor Medical due to nonpayment of the admittedly disputed in ternet charges.

DiDonato informed Swallen Windsor Medical’s account was not in a non-pay status, however, fiber support advised Swallen the phone system was, in fact, disconnected for nonpayment of the internet account. DiDonato acknowledged the erroneous double billing, but advised Swallen to pay the disputed internet charg es as doing so was the fastest way to restore the phone service. Windsor Medical paid the disputed charges. Months passed without resolution. Then, in August, 2017, Spect rum’s collection department emailed Swallen, demanding an additional $1,129.48, to avoid another phone

shut off. {¶35} The evidence presented establishes the fraud claim asserted by Windsor Medical did not arise out of the parties’ contracts, but went b eyond and were independent of those agreements. Windsor Medical’s fraud claim went beyond Spectrum’s failure to abide by the terms of the parties’ contracts. Spectrum engaged in deceptive billing practices, charging Windsor Medical for international calls and a second internet service which did not exist. Spectrum fraudulently represented it woul d resolve the billing issues,Stark Count y , Case No. 2020CA00085 14

but instead of doing so, Spectrum disconnected phone service fo rcing Windsor Medical to pay what amounts to a ransom. {¶36} Spectrum further contends the damages Windsor Medical alleged u nder its fraud claim were entirely dependent upon the terms of the parti es’ contracts. We disagree. The damages Windsor Medical sought were the result of Spectrum’s deceptive and fraudulent billing. The damages were amounts Windsor Medic al paid to prevent disruption to its phone service which was vital to its operatio ns. These payments included charges for international calls, which Spectrum conceded were e rroneously billed and for which Windsor Medical was owed a credit, and for a second inter net account, which Spectrum never actually installed. The amounts Windsor Medical paid Spectrum were not

owed under the contracts. {¶37} Because there was sufficient evidence to support the jury’s ver dict, we find the trial court did not err in denying Spectrum’s motion for ju dgment notwithstanding the

verdict on the fraud claim and the economic loss doctrine. Punitive Damages {¶38} In cases alleging fraud, in order to be awarded punitive damage s, the plaintiff must establish not only the elements of the tort itse lf, but must also show either the fraud is aggravated by the existence of malice or ill, or m ust demonstrate the wrongdoing is particularly gross or egregious. Atram v. Star Tool & Die Corp. (1989), 64 Ohio App.3d 388, 391–392, 581 N.E.2d 1110; Mid–America Acceptance Co. v. Lightle (1989), 63 Ohio App.3d 590, 602, 579 N.E.2d 721. There must be an element of malice, oppressive conduct, or outrage to sustain such an award

. Id

.Stark Count y , Case No. 2020CA00085 15

{¶39} The “actual malice” necessary for purposes of an award of punitive damages has been defined as (1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of rev enge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing

substantial harm. Berge v. Columbus Community Cable Access (1999), 136 Ohio App.3d 281, 316, 736 N.E.2d 517, quoting Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174, syllabus; Kemp v. Kemp , 5th Dist. No. 04CA011, 161 Ohio App.3d 671, 2005-Ohio-3120, 831 N.E.2d 1038, ¶ 73. {¶40} Whether actual malice exists is a question for the trier of fac t. Spires v. Oxford Mining Co., LLC , 7th Dist. Belmont No. 17 BE 0002, 2018-Ohio-2769, 116 N.E.3d 717, ¶ 32, citing Buckeye Union Ins. Co. v. New England Ins. Co. (1999), 87 Ohio St.3d 280, 720 N.E.2d 495; R.C. 2315.21(C)(1). “The same standard of review is employed to assess the weight of evidence whether the finding is for compen satory damages or the elements necessary to justify an award of punitive damages.” Id. , citing Bosak v. Kalmer , 7th Dist. Mahoning No. 01 CA 18, 2002-Ohio-3463, ¶ 36. Factual determinations will not be overturned as long as they are supported by some competent, credible evidence going

to all the essential elements of the case. Id. , citing C.E. Morris Co. v. Foley Constr.

Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus. {¶41} The trial court properly instructed the jury on the standard fo r the imposition of punitive damages. A jury is presumed to follow the instruc tions of the trial court. MCM Home Builders, LLC v. Sheehan , 5th Dist. Delaware No. 18 CAE 09 0074, 2019-Ohio3899, 2019 WL 4724682, ¶ 48 citing Pang v. Minch , 53 Ohio St.3d 186, 187, 559 N.E.2d 1313 (1990), paragraph four of the syllabus. This Court will no t invade the province of aStark Count y , Case No. 2020CA00085 16

properly instructed jury which reached a reasonable decision ba sed upon the evidence presented to it. Estate of Baxter v. Grange Mut. Cas. Co. , 73 Ohio App.3d 512, 521 (1992). {¶42} Upon review and as detailed, supra, we conclude the jurors coul d have reasonably determined Spectrum acted with actual malice which w arranted an award of punitive damages. The evidence supports the jury’s determinati on Spectrum’s conduct was, indeed, egregious. Accordingly, we find the trial court d id not abuse its discretion in confirming the award via its ruling on the motion for judgment notwithstanding the verdict on the issue of punitive damages. {¶43} Spectrum’s sole assignment of error is overruled. {¶44} The judgment of the Stark County Court of Common Pleas is affir med.

By: Hoffman, P. J. Delaney, J. and Baldwin, J. concur