[Cite as State ex rel. Hutch v. Village of Bolivar, 2018-Ohio-3460.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO EX REL., : JUDGES: 

IRVIN W. HUTH : Hon. Patricia A. Delaney, P.J. 

 : Hon. Craig R. Baldwin, J. 

 Relator-Appellant : Hon. Earle E. Wise, Jr., J. 

 : 

-vs- : 

 : 

VILLAGE OF BOLIVAR : Case No. 2018 AP 03 0013 

 : 

 Respondent-Appellee : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 2016 CV 05 0320 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: August 27, 2018 

APPEARANCES: 

For Relator-Appellant For Respondent-Appellee 

MICHELA HUTH JOHN T.McLANDRICH 

P. O. Box 17 FRANK H. SCIALDONE 

Bolivar, OH 44612 100 Franklin's Row 

 34305 Solon Road 

 Cleveland, OH 44139 
Tuscarawas County, Case No. 2018 AP 03 0013 2 

Wise, Earle, J.

{¶ 1} Relator-appellant Irvin W. Huth appeals the judgment of the Tuscarawas 

County Court of Common Pleas judgment, after a bench trial, in favor of respondentappellee Village of Bolivar. 

FACTS AND PROCEDURAL HISTORY 

{¶ 2} During the time relevant to this matter, the Village of Bolivar Village Council, 

a public body, was comprised of Lisa Cochran, Robert Lloyd, Craig Slutz, Mary Vincent, 

Andrew Marburger, and Timothy Lang (Village Council). The Village of Bolivar is an Ohio 

municipal corporation subject to the Ohio Open Meetings Act (OMA). 

{¶ 3} In the spring of 2014, Lake Region Development Co., Ltd. offered to settle 

litigation it had pending with the Village of Bolivar. A proposed settlement was drafted 

between the parties, and became the subject of Ordinance No. O-94-2014. 

{¶ 4} On May 18, 2014 Village Council published a legal notice in the Times 

Reporter, a local newspaper, which stated: 

The Village Council for the Village of Bolivar will hold a special 

session of Council on May 19, 2014 at 6:30 p.m. The purpose of this 

meeting will be for consideration of a settlement offer in the case of 

Lake Region Development Co., Ltd. v. Village of Bolivar. Council will 

discuss this pending litigation matter in executive session, but will 

take action in the public portion of the meeting. This meeting will be 

held in the Bolivar Village Hall at 109 N. Canal St., Bolivar, Ohio. 
Tuscarawas County, Case No. 2018 AP 03 0013 3 

{¶ 5} The meeting took place as scheduled and was called to order by Rebecca 

Hubble, the mayor of Bolivar. Hubble stated Village Council would go to executive 

session. Appellant asked Hubble if the public would be permitted to speak after executive 

session. Hubble advised that the general consensus was no, but that she would let council 

make that decision after executive session. Appellant's attorney Michela Huth also 

attended the meeting, and asked Village Council what it was going to discuss during 

executive session. Jillian Daisher, an attorney for the council advised council would be 

discussing the pending litigation. No Village Council member, nor the mayor addressed 

the question. Despite being advised Council would not be taking any further questions, 

appellant's attorney and appellant continued to interrupt. 

{¶ 6} Council member Slutz moved to go into executive session and was again 

interrupted by appellant's attorney. Slutz did not state the purpose of the executive 

session. Council member Lloyd seconded the motion as appellant's attorney continued 

to speak over the Council Members. In a roll call vote all members voted yes to go into 

executive session. All members of the public, with the exception of Bolivar Village 

Council's two attorneys, Daisher and Tami Hannon, left the room. 

{¶ 7} Following executive session, after the public reentered the room, Mayor 

Hubble announced "Public Speaks" would be allowed. Attorney Hannon then described 

the settlement agreement followed by questions and comments from the public, including 

appellant. 

{¶ 8} At the close of public discussion of the settlement, Council Member Slutz 

moved to suspend the rules and pass Ordinance No. O-94-2014 as an emergency. 

Council person Mary Vincent seconded the motion to suspend the rules. Slutz then made 
Tuscarawas County, Case No. 2018 AP 03 0013 4 

a motion to pass the ordinance that night and Lang seconded the motion. In a roll call 

vote, the ordinance passed by a vote of 5-1. 

{¶ 9} On May 18, 2016, appellant filed a Verified Complaint in Mandamus and for 

Injunction which set forth six causes of action, alleging that Village Council had violated 

the OMA, specifically, R.C. 121.22(A), (B), (C), (G), and (H). Appellant's complaint alleged 

Village Council had procedurally violated the OMA as to whether the public would be 

permitted to speak, and the manner in which it went to executive session. Appellant 

attached to his complaint a video he had taken of the May 19, 2014 special meeting which 

was taken before Village Council went into executive session. 

{¶ 10} A bench trial was held on October 17, 2017. The parties stipulated to the 

admission of all of appellant and appellee's exhibits, with the exception of appellant's 

exhibits 2a and 2b, which the trial court excluded. Exhibit 2a was a copy of police report, 

and 2b was a signed statement from Councilperson Lisa Cochran, which was attached to 

the police report. The statement detailed activities taking place in the executive session 

while the Village Council discussed the proposed settlement with its attorneys. 

{¶ 11} The parties submitted trial briefs. Thereafter, on March 6, 2018, the trial 

court entered judgment in favor of appellee, dismissing each count of appellant's 

complaint. 

{¶ 12} Appellant filed an appeal and the matter is now before this court for 

consideration. 

I 

{¶ 13} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT 

CONCLUDED 'ALL PORTIONS OF EXHIBITS 2A AND 2B THAT CONTAIN 
Tuscarawas County, Case No. 2018 AP 03 0013 5 

STATEMENTS PROTECTED BY THE EXECUTIVE SESSION PRIVILEGE AND THE 

ATTORNEY-CLIENT PRIVILEGE, INCLUDING LISA COCHRAN’S STATEMENTS 

REGARDING WHAT HAPPENED DURING THE EXECUTIVE SESSION, SHALL NOT 

BE ADMITTED AS EVIDENCE IN THIS MATTER'." 

II 

{¶ 14} "THE TRIAL COURT ERRED AND ABUSED IT DISCRETION, WHEN IT 

DISMISSED WITH PREJUDICE COUNT ONE OF RELATOR’S COMPLAINT, AND 

FOUND THAT BOLIVAR DID NOT VIOLATE R.C. 121.22(G) BECAUSE '[W]HILE THE 

REQUIRED PURPOSE OF THE EXECUTIVE SESSION WAS NOT STATED BY A 

VILLAGE COUNCIL MEMBER AS PART OF THE MOTION ITSELF, OR THE VOTE 

ITSELF, THE STATED PURPOSE OF THE EXECUTIVE SESSION WAS STATED 

IMMEDIATELY PRIOR TO THE MOTION AND VOTE TO ENTER EXECUTIVE 

SESSION. ADDITIONALLY, THE NOTICE FOR THE SPECIAL MEETING 

SPECIFICALLY STATED THAT THE PURPOSE OF THE SPECIAL MEETING AND 

EXECUTIVE SESSION WAS TO DISCUSS PENDING LITIGATION. AS SUCH, THE 

COURT CONCLUDES THAT THE PUBLIC WAS WELL INFORMED THAT THE 

PURPOSE OF THE EXECUTIVE SESSION WAS TO CONSIDER THE LAKE REGION 

DEVELOPMENT CO. LTD. SETTLEMENT WITH THE VILLAGE OF BOLIVAR'." 

III 

{¶ 15} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, WHEN IT 

DISMISSED WITH PREJUDICE COUNT TWO OF RELATOR’S COMPLAINT AND 

FOUND '[T]HE LACK OF PUBLIC DELIBERATION AND THE ALLEGED EXECUTIVE 

SESSION DISCUSSION REGARDING PERMITTING PUBLIC SPEAKS IS NOT AN 
Tuscarawas County, Case No. 2018 AP 03 0013 6 

OPEN MEETING ACTION VIOLATION AS IT DOES NOT CONSTITUTE A FORMAL 

ACTION, RESOLUTION OR RULE UNDER R.C. 121.22(H)'." 

IV 

{¶ 16} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT 

DISMISSED WITH PREJUDICE COUNT FOUR OF RELATOR’S COMPLAINT, AND 

CONCLUDED AND FOUND 'ALLEGED VIOLATION SET FORTH IN COUNT FOUR IS 

SUBSTANTIALLY THE SAME AS THE VIOLATION ALLEGED IN COUNT TWO. THE 

COURT LIKEWISE CONCLUDES THAT THE LACK OF PUBLIC DELIBERATION AND 

THE ALLEGED EXECUTIVE SESSION DISCUSSION REGARDING PERMITTING 

PUBLIC SPEAKS IN NOT AN OPEN MEETING ACTION VIOLATION AS IT DOES NOT 

CONSTITUTE A FORMAL ACTION, RESOLUTION OR RULE UNDER R.C. 121.22(H)'." 

V 

{¶ 17} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT 

DISMISSED WITH PREJUDICE COUNT FIVE OF RELATOR'S COMPLAINT, AND 

CONCLUDED AND FOUND "THE ALLEGED VIOLATION IN COUNT FIVE IS 

SUBSTANTIALLY THE SAME AS THE VIOLATIONS ALLEGED IN COUNTS TWO AND 

FOUR. THE COURT LIKEWISE CONCLUDES THAT THE LACK OF PUBLIC 

DELIBERATION AND THE ALLEGED EXECUTIVE SESSION DISCUSSION 

REGARDING PERMITTING PUBLIC SPEAKS IS NOT AN OPEN MEETING ACTION 

VIOLATION AS IT DOES NOT CONSTITUTE A FORMAL ACTION, RESOLUTION OF 

RULE UNDER R.C. 121.22(H)." 
Tuscarawas County, Case No. 2018 AP 03 0013 7 

VI 

{¶ 18} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT 

DISMISSED WITH PREJUDICE COUNT THREE OF RELATOR'S COMPLAINT, AND 

FOUND 'THE PURPOSE OF THE EXECUTIVE SESSION WAS TO DISCUSS PENDING 

LITIGATION WITH LEGAL COUNSEL. THE SETTLEMENT WITH LAKE REGION 

DEVELOPMENT CO., LTD., WAS PART OF THAT LITIGATION. THE VILLAGE 

COUNCIL'S CONSIDERATION AND DISCUSSION OF THAT SETTLEMENT WITH 

THEIR LEGAL COUNSEL IN EXECUTIVE SESSION WAS APPROPRIATE UNDER 

121.22(G)(3)'." 

VII 

{¶ 19} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT 

DISMISSED WITH PREJUDICE COUNT SIX OF RELATOR'S COMPLAINT, AND 

FOUND '[I]N LIGHT OF THE COURT'S FACTUAL FINDINGS AND LEGAL 

CONCLUSIONS LISTED ABOVE, THE COURT CONCLUDES THE INVALIDATION OF 

ORDINANCE NO. 94-2014 IS NOT WARRANTED'." 

ACCELERATED CALENDAR 

{¶ 20} Preliminarily, we note this case is before this court on the accelerated 

calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment 

on appeal, provides in pertinent part: “The appeal will be determined as provided by 

App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the 

reason for the court's decision as to each error to be in brief and conclusionary form.” 

{¶ 21} One of the most important purposes of the accelerated calendar is 

to enable an appellate court to render a brief and conclusory decision more quickly than 
Tuscarawas County, Case No. 2018 AP 03 0013 8 

in a case on the regular calendar where the briefs, facts, and legal issues are more 

complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 

655 (10th Dist.1983). 

{¶ 22} This appeal shall be considered in accordance with the 

aforementioned rules. 

{¶ 23} For ease of discussion, we will address some of appellant's 

assignments of error together and out of order. 

II 

{¶ 24} Appellant's second assignment of error argues the trial court erred in 

dismissing count one of his complaint when it found Village Council had substantially 

complied with the OMA in stating its reason for entering executive session. We disagree. 

{¶ 25} On a denial of a writ of mandamus, our standard of review is an 

abuse of discretion. State ex rel. River City Capital v. Clermont Cty. Bd. Of Commrs, 12th 

Dist. Clermont No. 2010-07-51, 2011-Ohio-4039, ¶ 23. In order to find an abuse of 

discretion, we must determine the trial court's decision was unreasonable, arbitrary or 

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 

Ohio St.3d 217, 450 N.E.2d 1140 (1983). 

{¶ 26} The OMA states that “[a]ll meetings of any public body are declared 

to be public meetings open to the public at all times.” R.C. 121.22(C). Any formal action 

adopted in an open meeting that results from deliberations in a meeting not open to the 

public is invalid unless (1) the meeting not open to the public was an executive session; 

(2) the public body utilized the proper procedures to enter into an executive session; and 

(3) the executive session was for a reason enumerated as one of the exceptions to the 
Tuscarawas County, Case No. 2018 AP 03 0013 9 

OMA under R.C. 121.22(G). R.C. 121.22(H). A public body can only enter an executive 

session from a properly held regular or special meeting, and only after a roll call vote of 

a quorum of the members present. R.C. 121.22(G). To properly hold a special meeting, 

the public body must follow the required notice procedures. R.C. 121.22(F). Further, "[i]f 

a public body holds an executive session to consider any of the matters listed in divisions 

(G)(2) to (8) of this section, the motion and vote to hold that executive session shall state 

which one or more of the approved matters listed in those divisions are to be considered 

at the executive session." R.C. 121.22(G)(8)(b). 

{¶ 27} “[T]he party asserting a violation of [the OMA] has the ultimate 

burden to prove [the OMA] was violated (or was threatened to be violated) by a public 

body.” State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 12th Dist. Clermont Nos. 

CA2011-05-045, CA2011-06-047, 2012-Ohio-2569, ¶ 24. “[T]he presumption of regularity 

applies to official actions pursuant to the official's ordinary duties of office.” L.J. Smith, 

Inc. v. Harrison Cty. Bd. of Revision, 140 Ohio St.3d 114, 2014-Ohio-2872, 16 N.E.3d 

573, ¶ 28. 

{¶ 28} The intent of the OMA, as set forth in R.C. 121.22, is to prevent public 

bodies from engaging in secret deliberations on public issues with no accountability to the 

public. Cincinnati Enquirer v. Cincinnati Bd. of Edn., 192 Ohio App.3d 566, 2011-Ohio703, 949 N.E.2d 1032, ¶ 9 (1st Dist.). Under the OMA, public officials are required “to 

take official action and to conduct all deliberations upon official business only in open 

meetings unless the subject matter is specifically excepted by law.” R.C. 121.22(A). 

{¶ 29} After following the procedures outlined above, a public body may 

discuss certain subject matter privately in an executive session. Tobacco Use Prevention 
Tuscarawas County, Case No. 2018 AP 03 0013 10 

& Control Found. Bd. of Trustees v. Boyce, 185 Ohio App.3d 707, 2009-Ohio-6993, 925 

N.E.2d 641, ¶ 64 (10th Dist.) The exception relevant here is contained in R.C. 

121.22(G)(3): "Conferences with an attorney for the public body that are the subject of 

pending or imminent court action[.]" 

{¶ 30} In this matter, the notice for the special meeting clearly stated the 

purpose for both the special meeting and the executive session was to discuss pending 

litigation with Lake Region Development Co. Ltd. Publisher's affidavit Legal Notice. At 

the special meeting, Mayor Hubble notified those present that Village Council would be 

entering executive session. Appellant's Exhibit 3, Video recording of Special Meeting PreExecutive Session 00:16-19. An attorney for the Village then stated Council would be 

entering executive session to discuss pending litigation. Id., 01:25-28. A motion was then 

made to enter executive session, although the motion itself did not state the reason. Id. 

01:36. The motion was seconded and a roll call vote to enter executive session then took 

place. Id. 01:41-02:06. 

{¶ 31} First, appellant complains that in reaching its conclusion, the trial 

court should have relied only on the minutes of the meeting and not appellant's own video 

of the meeting. We note, however, there are gaps in the minutes of the meeting where 

the secretary could not discern what was being said because appellant, his attorney, and 

others were disruptive and speaking out of turn. It is necessary to review both the minutes 

and the video of the meeting to understand what did or did not take place. 

{¶ 32} Next, following a review of the notice of special meeting, the minutes 

of the meeting, and the video, we note, as did the trial court, that the public was well 

informed that the purpose of the executive session was to discuss the pending litigation 
Tuscarawas County, Case No. 2018 AP 03 0013 11 

and settlement with Lake Region Development Co. Ltd. It is apparent from viewing the 

videos that everyone present at the meeting was well aware of the reason the meeting 

was called and the reason for executive session. We have reviewed appellant's 

arguments and authority in support and find the same unavailing. We conclude the trial 

court did not abuse its discretion in finding that the intent of R.C. 121.22 was satisfied and 

the Village of Bolivar did not violate the OMA. 

{¶ 33} The second assignment of error is overruled. 

III, IV, V 

{¶ 34} Appellant's third, fourth and fifth assignments of error concern the 

trial court's resolution of appellant's allegation that Village Council violated R.C. 

121.22(H) when it allegedly discussed during executive session whether to allow Public 

Speaks. According to appellant, the trial court erred when it found discussion regarding 

permitting public speaks is not an OMA violation. We disagree. 

{¶ 35} R.C. 121.22(H) states: 

(H) A resolution, rule, or formal action of any kind is invalid unless 

adopted in an open meeting of the public body. A resolution, rule, or 

formal action adopted in an open meeting that results from deliberations 

in a meeting not open to the public is invalid unless the deliberations 

were for a purpose specifically authorized in division (G) or (J) of this 

section and conducted at an executive session held in compliance with 

this section. A resolution, rule, or formal action adopted in an open 
Tuscarawas County, Case No. 2018 AP 03 0013 12 

meeting is invalid if the public body that adopted the resolution, rule, or 

formal action violated division (F) of this section. 

{¶ 36} The trial court took judicial notice of Village of Bolivar Municipal 

Ordinance #0-84-2014, Article 21.2.1 which provides the procedure for allowing Public 

Speaks. It states: 

The laws of the State of Ohio do not require that the public be granted 

an opportunity to speak in a public meeting. All public bodies of the 

Village of Bolivar have the discretion to allow or not allow public 

comment at each meeting. The public body shall announce whether 

or not there will be public comment at the meeting by verbally making 

an announcement regarding Public Speaks. 

{¶ 37} Decision, March 6, 2018 at 7. 

{¶ 38} Per R.C. 121.22(H), in order for a violation of the OMA to occur, some 

resolution, rule, or formal action must have been adopted by Village Council after 

deliberating in a meeting not open to the public. Cincinnati Enquirer v. Cincinnati Bd. Of 

Education, 192 Ohio App.3d 566, 570, 2011-Ohio-703, 949 N.E.2d 1032 (1st Dist.). 

{¶ 39} A public body deliberates “by thoroughly discussing all of the factors 

involved [in a decision], carefully weighing the positive factors against the negative 

factors, cautiously considering the ramifications of its proposed action, and gradually 

arriving at a proper decision which reflects the legislative process.” Theile v. Harris, 1st 
Tuscarawas County, Case No. 2018 AP 03 0013 13 

Dist. No. C–860103, 1986 WL 6514 (June 11, 1986). Deliberations involve “more than 

information-gathering, investigation, or fact-finding,” which are essential functions of any 

board. Berner v. Woods, 9th Dist. No. 07CA009132, 2007-Ohio-6207, 2007 WL 4146645, 

¶ 17, Holeski v. Lawrence, 85 Ohio App.3d 824, 829, 621 N.E.2d 802 (11th Dist. 1993). 

For example, the act does not prevent board members from participating in question-andanswer sessions with other persons who are not public officials. Id. 830.

{¶ 40} We agree with the trial court's finding that any lack of public 

deliberation, or alleged discussion during executive session regarding public speaks was 

not a violation of the OMA because it does not constitute a formal action, resolution or 

rule pursuant to R.C. 121.22(H). See Steingass Mechanical v. Warrensville Hts. Bd. of 

Edn., 151 Ohio App.3d 321, 2003-Ohio-28, 784 N.E.2d 118, ¶ 48-49. Rather, the decision 

is merely administrative. Accordingly, we find no abuse of discretion and overrule 

appellant's third, fourth, and fifth assignments of error. 

VI 

{¶ 41} In his sixth assignment of error, appellant argues the trial court erred 

in finding the purpose to the executive session was to discuss pending litigation and that 

the settlement offer by Lake Region Development was part of that litigation. According to 

appellant, the settlement offer is not an excepted topic for executive session under R.C. 

121.22(G) and thus any deliberations surrounding the settlement had to be conducted in 

an open meeting. Appellant also revisits his complaint that Village Council did not follow 

proper procedure before entering executive session. We disagree. 

{¶ 42} We have already determined that the trial court did not abuse its 

discretion in finding Village Council properly entered executive session. As for appellant's 
Tuscarawas County, Case No. 2018 AP 03 0013 14 

argument regarding discussion in executive session regarding the proposed settlement, 

the Eighth District, in a matter regarding the discoverability of a settlement agreement 

under public records provisions found: 

While R.C. 121.22(G)(3) permits a governmental body to privately 

discuss litigation, the statute expressly invalidates any resolution, 

rule or formal action adopted in the closed session unless the 

resolution, rule or formal action is adopted in an open meeting. See 

R.C. 121.22(H). Thus, once a conclusion is reached regarding 

pending or imminent litigation, the conclusion is to be made public, 

even though the deliberations leading to the conclusion were private. 

Since a settlement agreement contains the result of the bargaining 

process rather than revealing the details of the negotiations which 

led to the result, R.C. 121.22(G)(3), which exempts from public view 

only the conferences themselves, would not exempt a settlement 

agreement from disclosure. 

{¶ 43} State ex rel. Kinsley v. Berea Bd. of Edn. 64 Ohio App.3d 659, 664, 

582 N.E.2d 653 (1990); accord State ex rel. Findlay Publ'g Co. v. Hancock Cty. Bd. of 

Commrs., 80 Ohio St.3d 134, 136, 684 N.E.2d 1222 (1997) 

{¶ 44} Thus R.C. 121.22(G)(3) permits a public body to discuss and 

deliberate on pending litigation, including a settlement agreement or offer in executive 
Tuscarawas County, Case No. 2018 AP 03 0013 15 

session as long as any action taken on the matter is adopted in an open meeting. That is 

exactly what took place here. We therefore reject appellant's argument. 

{¶ 45} Appellant further argues, under the same assignment of error that 

Council could not discuss the settlement offer in executive session because according to 

appellant, the offer was one-sided, and thus not a legitimate settlement offer. As noted 

above, however, Council was permitted to discuss the offer in executive session. This is 

true whether or not the offer met appellant's approval. We reject this argument as well. 

{¶ 46} Finally, appellant attempts to transform the executive session 

discussion from a discussion on pending litigation to a discussion on zoning changes, a 

topic which may not be discussed in executive session. While the pending litigation may 

have ultimately had some zoning implication, the purpose of the executive session was 

to determine how to resolve the litigation against the Village, a permissible executive 

session topic. 

{¶ 47} We find no abuse of discretion, and reject appellant's sixth 

assignment of error. 

VII 

{¶ 48} In his seventh assignment of error, appellant argues Ordinance No. 

94-2014 is invalid because it resulted from deliberations not open to the public. 

{¶ 49} Because we have found no abuse of discretion on the part of the trial 

court in concluding there was no violation of the OMA, appellant's seventh assignment of 

error must necessarily fail. 
Tuscarawas County, Case No. 2018 AP 03 0013 16 

I 

{¶ 50} Appellant's first assignment of error argues the trial court erred and 

abused its discretion when it found appellant's exhibits 2a and 2b inadmissible. Based on 

our resolution of assignments of error II, III, IV and V, finding no violation of the OMA, 

appellant's second assignment of error challenging evidentiary issues is moot pursuant 

to App.R. 12(A)(1)(b) and (c). We therefore decline to address appellant's first assignment 

of error. 

{¶ 51} The judgment of the Tuscarawas County Court of Common Pleas is 

affirmed. 

By Wise, Earle, J. 

Delaney, P.J. and 

Baldwin, J. concur. 

 

 

 

EEW/rw