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2016-07-06 06:35:57.955341+00

DECISION. {¶ 1} Defendant-appellant Jessie Palmer appeals his conviction for speeding. Because the state failed to produce evidence of the laser device and its reliability, his conviction is reversed. I. Speeding Down the Highway {¶ 2} On July 21, 2005, Palmer was driving on Interstate 71 when he was pulled over by Ohio State Highway Patrol Officer Paul Lezotte for speeding. Officer Lezotte had used a laser device to determine that Palmer was traveling 79 miles per hour ("m.p.h.") in a 55 m.p.h. zone. Officer Lezotte cited Palmer for speeding in violation of R.C. 4511.21(D)(1). {¶ 3} At trial, Palmer argued that Officer Lezotte could not have used the laser device to determine his speed because he had a laser scrambler in his car. Despite this defense, the trial court convicted Palmer of speeding and ordered him to pay fifty dollars plus court costs. {¶ 4} Officer Lezotte testified that he self-checked the laser device the morning of the offense, and that the laser device was recalibrated and rechecked for calibration once a year. At no point did the state identify the laser device. And the court never took judicial notice of its reliability. {¶ 5} Palmer now appeals and argues that (1) his conviction was against the weight of the evidence; (2) the court erred in accepting Officer Lezotte's testimony about the speed reading he obtained from the laser device, where there was no foundation laid for the device's accuracy and dependability; and (3) there was insufficient evidence to convict him of speeding. II. No Laser Device, No Reliability {¶ 6} Palmer's second and third assignments of error argue that the state failed to produce sufficient evidence to support his speeding conviction because the state failed to lay a proper foundation for the laser device's reliability. The state argues that we should not consider the second assignment of error because Palmer did not object to an improper foundation. The state is incorrect. {¶ 7} When defendants enter a "not guilty" plea, they preserve their right to object to the sufficiency of the evidence.1 And a conviction based on insufficient evidence almost always amounts to plain error.2 "`Whether a sufficiency of the evidence argument is reviewed under a prejudicial error standard or under a plain error standard is academic,' because regardless of the standard used, `a conviction based on legally insufficient evidence constitutes a denial of due process.'"3 {¶ 8} Accordingly, if the evidence is insufficient (regardless of whether we review it under a prejudicial-error standard or a plain-error standard), the conviction must be reversed. {¶ 9} When reviewing the sufficiency of the evidence, we must examine the evidence in the light most favorable to the state and determine whether that evidence could have convinced any rational trier of fact that the essential elements of the crime had been proved beyond a reasonable doubt.4 {¶ 10} For a person to be convicted of speeding based on laser-device evidence, evidence must be introduced that the laser device is scientifically reliable.5 {¶ 11} We have stated that the scientific reliability of a laser device is the type of fact that a trial court may judicially notice.6 A judicially noticed fact must not be subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.7 {¶ 12} Thus, the state can establish the reliability of a speed-measuring device through "(1) a reported municipal court decision, (2) a reported or unreported case from the appellate court, or (3) the previous consideration of expert testimony about a specific device where the trial court notes it on the record."8 {¶ 13} Evidence must also be introduced to demonstrate that (1) the laser device is in good condition for accurate readings and (2) the officer is qualified to administer the laser device.9 {¶ 14} In the present case, the state presented Officer Lezotte's testimony that the laser was in good working order and that he had been certified to use speed-measuring devices. Palmer does not challenge these aspects of the state's case. Instead, he argues that the state failed to properly lay the foundation for the laser device's reliability in the trial court. His assignment of error is well taken. {¶ 15} Where the state fails to offer testimony about the construction and method of operation of a laser device not the subject of judicial notice, the testimony of the officer alone is insufficient to sustain a conviction for speeding.10 {¶ 16} Here, the state failed to introduce even the identity of the laser device. The trial court could not then conclude that the reliability of this unknown machine had been recognized by courts within our district. Thus, the unknown and unspecified laser device could not have been used as evidence of Palmer's speed. {¶ 17} The state's only witness, Officer Lezotte, relied upon his laser device to determine that Palmer was speeding. Because we have ruled that the laser device's reading as to Palmer's speed should not have been admitted, and because the record is devoid of any other evidence that Palmer was speeding, his speeding conviction must be reversed based upon insufficient evidence. {¶ 18} Accordingly, the trial court's judgment is reversed and Palmer is discharged from further prosecution. Judgment reversed and appellant discharged. Hendon and Winkler, JJ., concur. Winkler, retired, from the First Appellate District, sitting by assignment. 1 See State v. Jones, 91 Ohio St.3d 335, 346, 2001-Ohio-57,744 N.E.2d 1163, and State v. Carter, 64 Ohio St.3d 218, 223,1992-Ohio-127, 594 N.E.2d 595. 2 See State v. Shadoan, 4th Dist. No. 03CA764,2004-Ohio-1756, at ¶ 16; State v. Hermann, 6th Dist. No. E-01-039, 2002-Ohio-7307, at ¶ 24; State v. Brown (July 14, 2000), 2nd Dist. No. 17891; State v. Miller,153 Ohio App.3d 665, 2003-Ohio-4221, 795 N.E.2d 690, at ¶ 57. 3 See Miller, 153 Ohio App.3d 665, 2003-Ohio-4221,795 N.E.2d 690, at ¶ 57, citing State v. Thompkins,78 Ohio St.3d 380, 386-387, 1997-Ohio-52, 678 N.E.2d 541, Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, and Jackson v.Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781. 4 See State v. Jenks (1991), 61 Ohio St.3d 259,574 N.E.2d 492, paragraph two of the syllabus. 5 See East Cleveland v. Ferell (1958), 168 Ohio St. 298,301, 154 N.E.2d 630. 6 See Cincinnati v. Levine, 158 Ohio App.3d 657,2004-Ohio-5992, 821 N.E.2d 613, at ¶ 7, citing Columbus v.Dawson (Mar. 14, 2000), 10th Dist. No. 99AP-589. 7 Evid.R. 201(B). 8 Levine, 158 Ohio App.3d 657, 2004-Ohio-5992,821 N.E.2d 613, at ¶ 10. 9 See State v. Wilcox (1974), 40 Ohio App.2d 380, 384,319 N.E.2d 615. 10 See New Middletown v. Yeager, 7th Dist. No. 03-MA-104,2004-Ohio-1549), citing State v. Colby (1984),14 Ohio App.3d 291, 470 N.E.2d 924.

2016-07-06 06:35:57.987971+00

OPINION {¶ 1} Appellant, Ohio Construction Industry Licensing Board f/k/a Ohio Construction Industry Examining Board1 ("the board"), appeals from the judgment of the Franklin County Court of Common Pleas reversing the board's orders revoking the electrical and HVAC2 contracting licenses of appellee, Stephen J. Roberts. For the reasons that follow, we affirm. {¶ 2} The relevant facts are undisputed. Appellee has been engaged in the business of electrical and HVAC contracting in Ohio for roughly 13 years, and has operated his own business for over 10 years. Through the years, he has held numerous licenses issued by municipalities permitting him to engage in such contracting within those specified jurisdictions. {¶ 3} In the year 2000, the 123rd Ohio General Assembly passed Am.Sub.H.B. 434 ("the act"), which substantially amended the Construction Industry Certification Law contained in the Ohio Revised Code. The act, whose various sections became effective during the year 2001, created a system under which HVAC contractors, refrigeration contractors, electrical contractors, plumbing contractors, and hydronics contractors who engage in commercial construction may obtain a single state-issued license to do business in all parts of Ohio. {¶ 4} Formerly, the board was empowered to issue "qualification certificates." Possession of a qualification certificate entitled the individual contractor to conduct business anywhere in the state, but municipalities or counties could require the contractor to meet additional regulations. The act eliminated most existing authority for municipal corporations and counties to impose additional examinations or skill-related requirements on those contractors who wish to do business within the jurisdiction of the municipal corporation or county. Instead, the qualification certificates were converted to "licenses." {¶ 5} Under the former law, in order to receive a qualification certificate, an individual was required to be at least 18 years of age, be a citizen of the United States, be of good moral character, pass an examination, pay a specified fee, and have at least two years of continuous experience immediately prior to application for examination in the area of contracting for which the applicant was applying for the certificate. See former R.C. 4740.06. The 2001 amendment eliminated certain qualification requirements, including that the applicant be of good moral character, but added certain others, including that the applicant not have been convicted of a felony. The newly amended requirements for obtaining a license through examination, pursuant to R.C. 4740.06, now precisely mirrored those enumerated items which, if an individual was found out of compliance with the same, would subject the individual to disciplinary action pursuant to the newly amended R.C. 4740.10. (See text of amended R.C. 4740.10, infra, at ¶ 6.) That is, in enacting Am.Sub.H.B. No. 434, the legislature changed R.C. 4740.06 (respecting qualifications to obtain a license) and R.C. 4740.10 (respecting criteria used to trigger disciplinary action against a licensee) so as to harmonize them. This resulted in a predictable, consistent statutory scheme for statewide licensure of contractors by examination. {¶ 6} Pursuant to the act, specific criteria are to be used in deciding whether to issue, renew, suspend, or revoke a license. Specifically, Section 1 of the act amended R.C.4740.10,3 which at all times relevant hereto provided, in relevant part: (A) The heating, ventilating, air conditioning, and refrigeration section of the Ohio construction industry examining board for heating, ventilating, and air conditioning contractors and for refrigeration contractors; the electrical section of the board for electrical contractors; the plumbing section of the board for plumbing contractors; and both the plumbing section and the heating, ventilating, air conditioning, and refrigeration section for hydronics contractors may suspend or revoke a license and may direct the administrative section of the board to refuse to issue or renew a license if the section of the board finds that the applicant or licensee has done any of the following: (1) Been convicted of a misdemeanor involving moral turpitude or a felony; (2) Violated any provision of this chapter or the rules adopted pursuant thereto; (3) Obtained a license or any order, ruling, or authorization of the board by fraud, misrepresentation, or deception; (4) Engaged in fraud, misrepresentation, or deception in the conduct of business. (B) The appropriate section of the board shall determine the length of time that a license is to be suspended and whether or when an individual whose license has been revoked may apply for reinstatement. The appropriate section of the board may accept or refuse an application for reinstatement and may require an examination for reinstatement. {¶ 7} The act included a "grandfather clause" pursuant to which contractors in the five specialty trades would be able to obtain the new statewide license without sitting for a written examination. The grandfather clause provided, in relevant part, as follows: (A) The heating, ventilating, air conditioning, and refrigeration section of the Ohio Construction Industry Examining Board for heating, ventilating, and air conditioning contractors and refrigeration contractors; the plumbing section of the Board for plumbing contractors; the electrical section for electrical contractors; and both the heating, ventilating, air conditioning, and refrigeration section and the plumbing section for hydronics contractors shall issue a license for those types of contractors, as appropriate, to any individual who meets the criteria described in division (B) or (C) of this section. (B) The individual does all of the following: (1) Applies to the appropriate section of the Board within seven months after the effective date of this section; (2) Pays the appropriate fee determined by each respective section of the Board; (3) Has been actively engaged as a heating, ventilating, and air conditioning contractor, refrigeration contractor, plumbing contractor, electrical contractor, or hydronics contractor, as applicable, in this state for at least three years immediately prior to the effective date of this section; (4) Furnishes business records or other evidence to verify the experience required under division (C)(1)(c) of this section to the satisfaction of the appropriate section of the Board; (5) Provides evidence of all of the following: (a) Current contractor's liability insurance, including without limitation, complete operations coverage, in the amount of three hundred thousand dollars; (b) Compliance with Chapters 4121. and 4123. of the Revised Code; (c) Compliance with any other applicable legal requirements to do business in this state, as determined by the Board. (C) The individual applies to the appropriate section of the Board within one year after the effective date of this section, pays the appropriate fee determined by each respective section of the Board, and demonstrates that the individual satisfies qualification requirements as the Board determines, to the Board's satisfaction. Am.Sub.H.B. No. 434, Section 4.4 {¶ 8} Pursuant to the act's grandfather clause, appellee timely filled out and submitted an application for electrical and HVAC contractor licenses. Appellee answered affirmatively a question in Section C of the application regarding whether he had ever been convicted of any felony. He attached a letter explaining that he was convicted of a drug-related felony in 1986, he served time in prison as a result, and was released from parole in 1991. He added that, since his release, he has been involved in a 12-step recovery program and has been drug-free for 10 years. {¶ 9} Following receipt of appellee's application, the board issued him licenses for electrical and HVAC contracting, as it was required to do pursuant to paragraph (A) of the grandfather clause. Nearly two years later, however, by letter dated March 21, 2003, the board informed appellee that it had come to the board's attention that he had a felony conviction. The board requested further information, which appellant provided. On April 7, 2003, the board informed appellee, by two certified letters, that the board's electrical and HVAC sections proposed revocation of appellee's licenses due to his felony conviction. Appellee filed a brief in opposition to the board's proposed action, and the matter was set for a hearing. The board held a hearing on June 6, 2003. {¶ 10} On June 9, 2003, the hearing officer issued his Report and Recommendation. Therein, he found that in 1984, appellee pled guilty to two counts of breaking and entering and three counts of theft.5 The hearing officer further found that these convictions were fully disclosed on appellee's grandfather application, but appellant issued appellee's license, according to appellant's representative, due to an oversight. The hearing officer noted that appellee's character witnesses described him as an exemplary person. {¶ 11} The hearing officer found well-taken appellee's argument that R.C. 4740.10(A) contains permissive — not mandatory — language, such that the board is not required to revoke a license on account of the holder's felony conviction. However, the hearing officer found that this was insufficient to prohibit the board from proceeding with such a revocation pursuant to R.C.4740.10, in a case in which the licensee in fact has a felony conviction, no matter how long ago the conviction occurred. Accordingly, the hearing officer recommended that the board uphold the request of its electrical and HVAC sections and revoke appellee's contractor licenses. {¶ 12} Appellee filed objections to the report of the hearing officer. However, by separate orders dated August 13, 2003, the board informed appellee that its electrical and HVAC sections thereby revoked his contractor licenses. Pursuant to R.C. Chapter 119, appellee filed two separate notices of appeal to the Franklin County Court of Common Pleas. The two cases were consolidated and on January 15, 2004, the trial court journalized a single decision and entry reversing the decision of the board and ordering the board to reinstate appellee's electrical and HVAC licenses. {¶ 13} It is from this decision and entry that the board brings this appeal, and asserts the following three assignments of error for our review: ASSIGNMENT OF ERROR NO. 1 The lower court erred as a matter of law when it determined that Section 4 of Sub. Am. H.B. 434 prohibited appellant from revoking appellee's licenses. ASSIGNMENT OF ERROR NO. 2 The lower court erred as a matter of law when it determined that appellant was without statutory authority to revoke appellee's licenses. ASSIGNMENT OF ERROR NO. 3 The lower court erred in determining that appellant's orders revoking appellee's licenses were not supported by reliable, probative, and substantial evidence and were not in accordance with law. {¶ 14} R.C. 119.12 governs this appeal6 and provides, in part: The court may affirm the order of the agency 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 may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. {¶ 15} Under R.C. 119.12, when the trial court reviews an order of an administrative agency, the trial court must consider the entire record to determine whether the agency's order is supported by reliable, probative and substantial evidence and is in accordance with law. Univ. of Cincinnati v. Conrad (1980),63 Ohio St.2d 108, 110-111, 407 N.E.2d 1265. See, also, Andrewsv. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280,131 N.E.2d 390. {¶ 16} The trial court's "review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court `must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence and the weight thereof.'"Lies v. Veterinary Med. Bd. (1981), 2 Ohio App.3d 204, 207,441 N.E.2d 584, quoting Andrews, supra, at 280. In its review, the trial court must give due deference to the administrative agency's resolution of evidentiary conflicts, but the findings of the agency are not conclusive. Univ. of Cincinnati, supra, at 111. {¶ 17} An appellate court's review of an administrative decision is more limited than that of a trial court. Pons v.Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621,614 N.E.2d 748, rehearing denied, 67 Ohio St.3d 1439, 617 N.E.2d 688. InPons, the Supreme Court of Ohio noted: "* * * While it is incumbent on the trial court to examine the evidence, this is not a function of the appellate court. The appellate court is to determine only if the trial court has abused its discretion[.] * * * Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for [that of an administrative agency] or a trial court. Instead, the appellate court must affirm the trial court's judgment." Id. An abuse of discretion implies the decision is both without a reasonable basis and is clearly wrong. Angelkovski v. BuckeyePotato Chips Co. (1983), 11 Ohio App.3d 159, 161-162,463 N.E.2d 1280. On questions of law, however, the court of common pleas does not exercise its discretion and the court of appeals' review is plenary. Univ. Hosp., Univ. of Cincinnati College of Medicinev. State Emp. Relations Bd. (1992), 63 Ohio St.3d 339,587 N.E.2d 835. {¶ 18} We will consider and discuss all three of the board's assignments of error together because, the facts being essentially undisputed, our resolution of all of the assignments of error rests upon our review of the propriety of the trial court's legal analysis, and of its ultimate finding that the board's decision was not in accordance with law. {¶ 19} We begin by reviewing the substance of the trial court's analysis. The court took note of the fact that, pursuant to the plain language of the grandfather clause, appellee was properly issued his licenses, notwithstanding the fact that he had been previously convicted of a felony. Specifically, the court pointed out that appellee met all criteria enumerated in the grandfather clause, and pursuant to the language thereof, it was mandatory that the board issue appellee's licenses. The court went on to reason that, because appellee's circumstances had not changed since issuance of his licenses, and given that R.C.4740.10 does not mandate revocation for prior felonies, "the Board is without statutory authority to revoke [appellee's] license[s] that it was `mandated' to grant." (Jan. 15, 2004 Decision and Entry, at 6.) The court of common pleas added that, in its opinion, "[t]here seems to be inconsistency between the sections of the O.R.C." (Ibid.) {¶ 20} In its brief, the board frames the legal issue presented in this appeal as, "whether a felony was a bar to licensure under Section 4 of [Am.Sub.]H.B. [No.] 434." We do not share the board's perception of the fundamental legal issue before us. The plain language of the grandfather clause, clearly and unambiguously, contains no prohibition on licensure thereunder for convicted felons. Thus, the court of common pleas was correct in determining that appellee was properly issued his statewide contractor licenses under the grandfather clause. {¶ 21} The pivotal question in this case was first identified by the hearing officer in his Report and Recommendation. The hearing officer observed that R.C. 4740.10 permits the board to revoke the license of a contractor, "if the [appropriate specialty] section of the board finds that the * * * licensee has * * * been convicted of * * * a felony." R.C. 4740.10(A)(1). The hearing officer concluded that, owing to this unqualified power vested in the board to revoke a license upon a finding that a licensee has committed any felony, no legal impediments prevented the board from revoking appellee's licenses if it chose to do so. We disagree. {¶ 22} Within the same enactment in which it amended R.C.4740.06 to include any prior felony conviction as an absolute bar to licensure by examination, the legislature effectuated the grandfather clause, which contains absolutely no language barring convicted felons from licensure thereby. It is therefore clear that the General Assembly intended that prior felonies will not, under any circumstances, provide the basis for any action by the board that would prevent individuals who qualified for licensure under the provisions of the grandfather clause from continuing to engage in the type of contracting for which they were licensed following enactment of Am.Sub.H.B. 434. To construe R.C. 4740.10 to confer unfettered power upon the board to revoke the license of one who obtained his license pursuant to the grandfather clause, and to do so based solely on a pre-licensure felony conviction, directly negates this clear legislative intent. {¶ 23} The board's position invites us to ignore the grandfather clause in its entirety, rather than attempt to reconcile the provisions of R.C. 4740.10 and the grandfather clause, which, at first blush, appear to be somewhat inharmonious. Indeed, to allow the board to revoke appellee's license based upon pre-licensure convictions renders the grandfather clause wholly ineffective. In enacting any statute, it is presumed that the entire statute is intended to be effective. R.C. 1.47(B). We perceive nothing in the record or in the applicable version of the Construction Industry Certification Law that overcomes this presumption. {¶ 24} Accordingly, we construe R.C. 4740.10 to not allow disciplinary action against a licensee who obtained his or her license pursuant to Section 4 of Am.Sub.H.B. 434, by reason of a felony conviction, when the felony conviction was obtained prior to the date of licensure. This construction harmonizes and gives full effect to both provisions, as we are required to do when possible. See Empire Gas Corp. v. Westerville Bd. of Edn. (1995), 102 Ohio App.3d 613, 657 N.E.2d 790; Shover v. CordisCorp. (1991), 61 Ohio St.3d 213, 218, 574 N.E.2d 457; Maxfieldv. Brooks (1924), 110 Ohio St. 566, 144 N.E. 725; Benjamin v.Columbus (1957), 104 Ohio App. 293, 4 O.O.2d 439,148 N.E.2d 695, affirmed (1957), 167 Ohio St. 103, 4 O.O.2d 113,146 N.E.2d 854; State v. Glass (1971), 27 Ohio App.2d 214, 56 O.O.2d 391,273 N.E.2d 893; State v. Hollenbacher (1920), 101 Ohio St. 478,129 N.E. 702. See, also, Couts v. Rose (1950),152 Ohio St. 458, 40 O.O. 482, 90 N.E.2d 139 ("[Courts] in the interpretation of related and co-existing statutes must harmonize and give full application to all such statutes unless they are irreconcilable and in hopeless conflict"). {¶ 25} We hold that, as a matter of law, the board did not have the power to revoke appellee's contractor licenses based on his prior felony convictions. Thus, the board's orders were contrary to law and, as the trial court determined, must be reversed. For all of the foregoing reasons, we overrule all three of the board's assignments of error, and affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. Petree and Klatt, JJ., concur. 1 The name of the board was changed by Sub.S.B. No. 179, effective September 16, 2004. 2 HVAC stands for "heating, ventilating and air conditioning." 3 Sections (A) and (C) were subsequently amended by Sub.S.B. No. 179, effective on September 16, 2004. The pre-Sub.S.B. No. 179 version applies hereto and is reprinted herein. 4 This section of the act became effective on March 22, 2001. 5 The hearing officer did not make a specific finding with respect to the 1986 conviction that appellee disclosed on his license application. 6 In his brief, appellee argues that, in addition to conducting a review pursuant to R.C. Chapter 119, the court of common pleas may also review the board's order for arbitrariness pursuant to R.C. 2506.04. But by the plain language of R.C.2506.01, the former applies only to review of final orders of divisions of the state's political subdivisions. Therefore, R.C.2506.04 is inapplicable herein.

2016-07-06 06:35:58.021605+00

JOURNAL ENTRY AND OPINION Plaintiff-appellant Richard Tucker ("appellant") appeals from the judgment of the trial court which granted a motion to dismiss in favor of Defendant-appellees William Mason, the Cuyahoga County Prosecutor (hereafter "prosecutor") and the Ohio Adult Parole Authority (hereafter "OAPA"). For the reasons set forth below, we reverse the decision of the trial court and remand. On June 14, 2001, appellant filed his complaint against appellees OAPA and the Cuyahoga County Prosecutor, alleging breach of contract and seeking declaratory judgment. The action stemmed from a plea agreement entered into by the appellant with the State of Ohio through the prosecutor, wherein the appellant pled guilty to attempted aggravated arson, attempted Robbery and felonious assault and was sentenced to between five and fifteen years. The appellant complained that the OAPA and the prosecutor failed to honor the agreement, when they categorized him for purposes of parole eligibility based on his original indictment, rather than categorizing him based on the offenses of which he was convicted.1 The appellant requested the court to declare his entitlement to the terms and conditions of the plea agreement and to issue an injunction ordering compliance with the agreement via a new hearing and new categorization based on his actual conviction. The prosecutor and OAPA both moved to dismiss the complaint for failure to state a claim pursuant to Civ.R. 12(B)(6). In its motion, the prosecutor argued that the appellant has no constitutional or inherent right to parole and therefore he has no right to challenge the OAPA's guidelines or procedures. The OAPA argued in its motion to dismiss that the OAPA may consider conduct supporting an indictment when reviewing an inmate's eligibility for parole.2 They argued that pursuant to statute, the OAPA exclusively administers the parole process, that the guidelines established in 1998 are discretionary, that they are allowed to use elements of offense of which an inmate was indicted but not convicted, that an inmate has no right to be considered for parole at any particular time between his or her minimum and maximum sentence, and lastly that an inmate is not entitled to declaratory judgment under R.C. 2721.03. In the alternative, the OAPA filed a motion to change venue, which was denied by the trial court as moot. The trial court granted the prosecutor's and OAPA's motions to dismiss in a journal entry dated July 30, 2001: Defendant Mason's and Defendant Ohio Adult's Motions for Dismissal are both granted. Case is dismissed with prejudice at plaintiff's costs. FINAL. Plaintiff's Motion to Strike (7/17/01) and Defendant Ohio Adult's second motion for dismissal are both denied as moot. All clams are [dismissed with prejudice]. FINAL. Appellant now appeals this ruling, asserting seven assignments of error for our review. I. In his first assignment of error, the appellant essentially argues that the court erred in failing to include the "no just reason for delay" language in its journal entry and this failure prevents a final appealable order under R.C. 2505.02. We disagree. Pursuant to Civ.R. 54(B), an entry of judgment involving fewer than all of the claims or parties is not final unless the court expressly concludes there is "no just reason for delay." See Noble v. Colwell (1989), 44 Ohio St.3d 92, 540 N.E.2d 1381; Chef Italiano Corp. v. KentState Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64. This does not apply, however to entries of judgment addressing all of the claims or parties in the suit. In the case sub judice, the trial court dismissed all of the claims of the appellant in its journal entry, stating "Defendant Mason's and Defendant Ohio Adult's motions for dismissal are both granted. Case is dismissed with prejudice at Plaintiff's costs. FINAL." Therefore, it was not necessary for the court to include the "no just reason for delay" language its entry. This assignment of error is without merit. II. In his second assignment of error, the appellant essentially argues that the trial court erred in failing to consider jurisdictional issues with regard to the OAPA's motion to change venue. However, as the above journal entry indicates, the trial court dismissed both motions to dismiss, therefore properly rendering the motion to change venue moot. This assignment of error is without merit. III. In his third assignment of error, the appellant claims that the trial court erred in dismissing his breach of contract claim against the prosecutor and the OAPA. The appellant contends that the State of Ohio, through the prosecutor and the OAPA, breached the agreement by denying him the benefit of the bargain that was given in exchange for his guilty plea. The benefit to which the appellant contends he is entitled to is eligible to be considered for parole. When reviewing a Civ.R. 12(B)(6) dismissal, this Court independently reviews the complaint to determine whether dismissal was properly granted. Girts v. Raaf (May 4, 1995), Cuyahoga App. No. 67774, unreported, citing State ex rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40, 528 N.E.2d 1253. Therefore, a reviewing court need not defer to a trial court's ruling. The standard of review for a motion to dismiss for failure to state a claim pursuant to Civ.R. 12(B)(6), is as follows: Pursuant to Civ.R. 12(B)(6), in order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that [plaintiff] could prove no set of facts warranting relief, after all factual allegations of the complaint are presumed true and all reasonable inferences are made in his favor. State ex rel. Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 581, 669 N.E.2d 835, 837. State ex rel. Kaylor v. Bruening (1997), 80 Ohio St.3d 142, 144,684 N.E.2d 1228. This Court recently addressed whether a complaint against the OAPA for breach of contract with regard to a plea agreement states a claim upon which relief can be granted in State v. Vendrick (Feb. 23, 2002), Cuyahoga App. No. 80030, unreported. In Vendrick, we held that as an agency of the state, the OAPA was bound by the state's plea agreement with the appellant. Accord State v. Butts (1996), 112 Ohio App.3d 683 (A plea agreement is contractual in nature and subject to contract standards); State v. Callahan (Oct. 6, 2000), Montgomery App. No. 18237, unreported (County prosecutors and the OAPA are agents of the state and therefore must honor agreements made by the state.) In Vendrick, after noting that other Ohio districts have held that a plea agreement is a contract by the state that the OAPA must honor, we stated: * * * While the OAPA may have absolute discretion to decide whether to parole a particular offender, and may be able to consider the circumstances surrounding the offense and whether appellant could have been convicted of a more serious crime but for his plea, it must begin its decision-making process by applying the guidelines for the crime of which the appellant was actually convicted, not the crime for which he was indicted. Vendrick at 5-6. We further stated that "we cannot conclude that appellant can prove no set of facts entitling him to relief." Vendrick,supra. We continue to be persuaded by this reasoning and in the matter subjudice we cannot say that the appellant can prove no set of facts entitling him to relief. As such, this assignment of error is well-taken. In his remaining four assignments of error, the appellant highlights various alleged constitutional infirmities of the guidelines employed by the OAPA in determining parole eligibility. However, these matters were not raised before the trial court. The appellant cannot raise new issues on appeal that were not raised in the trial court. See Van Camp v. Riley (1984), 16 Ohio App.3d 457, 463, 544-545, 476 N.E.2d 1078, 1084; citingRepublic Steel Corp. v. Cuyahoga Cty. Bd. of Revision (1963),175 Ohio St. 179, 192 N.E.2d 47. See, also, App.R. 12(A); State v. 1981Dodge Ram Van (1988), 36 Ohio St.3d 168, 522 N.E.2d 524; Hungler v.Cincinnati (1986), 25 Ohio St.3d 338, 496 N.E.2d 912; C. MillerChevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio St.2d 298,313 N.E.2d 400. Therefore, we need not address the appellant's remaining four assignments of error. Judgment reversed and remanded for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee their 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. TIMOTHY E. MCMONAGLE, A.J., AND ANNE L. KILBANE, J., CONCUR 1 Appellant was indicted for aggravated arson, aggravated robbery and felonious assault. Employing the procedures used by the OAPA, this would place the appellant in category 9 for purposes of parole eligibility, requiring the appellant to serve between 132-168 months prior to a hearing for parole consideration. However, if the OAPA had placed the appellant in a category based on his conviction, he would have been placed in category 7, which would require the appellant to serve between 84-108 months prior to consideration for parole. 2 The OAPA noted that grand juries indict based on probable cause and that this is sufficient information upon which to rely.

2016-07-06 06:35:58.049386+00

Appellant, George Schempf, and appellee, Sherry Schempf, were married on October 27, 1990. No children were born as issue of said marriage. On November 6, 1996, appellee filed a complaint for divorce. A hearing before a magistrate was held on December 11, 1997. By decision filed January 16, 1998, the magistrate granted the divorce and allocated the parties' property. Appellant filed objections to the magistrate's decision on January 30, 1998 and appellee filed cross-objections on February 3, 1998. A hearing was held on March 25, 1998. The trial court overruled the objections and approved and adopted the magistrate's decision. By judgment entry filed April 9, 1998, the trial court issued its final judgment entry of divorce. Appellant filed a notice of appeal and this matter is now before this for consideration. Assignments of error are as follows: I THE TRIAL COURT'S FAILURE TO INCLUDE APPELLEE'S BANK ACCOUNTS IN THE DISTRIBUTION OF MARITAL ASSETS WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II THE TRIAL COURT'S FAILURE TO INCLUDE THE FEDERAL QUARTERLY ESTIMATED TAX PAYMENTS IN THE DISTRIBUTION OF MARITAL ASSETS WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III THE TRIAL COURT'S DOUBLE COUNTING OF THE ALLIS-CHALMERS TRACTOR BY INCLUDING ITS VALUE IN THE KIKO AUCTION SALES PROCEEDS AND ITS FAIR MARKET VALUE AS SEPARATE AWARDS TO APPELLANT WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. IV THE TRIAL COURT'S CLASSIFICATION OF THE FLATBED TRAILER AS MARITAL PROPERTY AND ITS DISTRIBUTION TO APPELLANT AS MARITAL PROPERTY WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. V THE TRIAL COURT'S VALUATION OF THE MAYER LOAN WAS AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. VI THE TRIAL COURT'S TREATMENT OF THE 1984 ODAY SAILBOAT AND TRAILER WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. VII THE TRIAL COURT'S VALUATIONS OF THE 1988 BUICK AND THE 1983 GMC TRUCK WERE AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. VIII THE TRIAL COURT'S DIVISION OF THE CAPITAL GAINS TAX OBLIGATION WAS AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. IX THE TRIAL COURT'S TREATMENT OF THE OIL WELLS WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. STANDARD OF REVIEW Because all nine assignments of error challenge the trial court's division of the parties' property, we will first discuss the standard of review applicable to all nine assignments. R.C. 3105.171 governs equitable division of marital and separate property. Subsection (B) authorizes the trial court to determine "what constitutes marital property and what constitutes separate property." Subsection (C) mandates "the division of marital property shall be equal." If such a division would be inequitable, the court shall divide the marital property in an equitable manner. In making a division of marital property, the trial court shall consider all relevant factors, including those set forth in subsection (F): (F) In making a division of marital property and in determining whether to make the amount of any distributive award under this section, the court shall consider all of the following factors: (1) The duration of the marriage; (2) The assets and liabilities of the spouses; (3) The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage; (4) The liquidity of the property to be distributed; (5) The economic desirability of retaining intact an asset or an interest in an asset; (6) The tax consequences of the property division upon the respective awards to be made to each spouse; (7) The cost of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property; (8) Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses; (9) Any relevant factor that the court expressly finds to be relevant and equitable. Subsection (G) requires the trial court to "make written findings of fact that support the determination that the marital property has been equitably divided and shall specify the dates it used in determining the meaning of 'during the marriage.' " In reviewing an order on property division, this court will not disturb the trial court's decision absent a showing of an abuse of discretion. Martin v. Martin (1985), 18 Ohio St.3d 292. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. In addition, a judgment supported by some competent, credible evidence will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. V. Foley Construction Co. (1978),54 Ohio St.2d 279. Keeping the foregoing in mind, we will address the nine assignments of error. I Appellant argues the trial court erred in failing to include appellee's bank accounts in the distribution of marital assets. We agree. Appellee testified to having three bank accounts totaling $1,484.00. T. at 93. These accounts are not mentioned in the division of property. The result of this omission is that appellee retains the accounts without an equitable offset to appellant. In making an unequal distribution, the trial court is required to enter written findings of fact supporting its decision. See, Szerlip v. Szerlip (August 20, 1998), Knox App. No. 97CA31, unreported. Such was not done sub judice. Upon review, we find the trial court erred in failing to include appellee's bank accounts in the distribution of martial assets. Assignment of Error I is granted. II Appellant argues the trial court erred in failing to include the federal quarterly estimated tax payments in the distribution of marital assets. We agree. The parties had an account with the Internal Revenue Service in the amount of $5,773.60. When appellee filed her 1996 tax return, she applied $4,058.00 to her tax obligation (see, Plaintiff's Exhibit 29), leaving a balance of $1,715.60. This account was not mentioned in the division of property. As a result of this omission, appellee received $1,171.20 more than appellant did. Again, no written findings of fact were filed supporting the unequal distribution. Upon review, we find the trial court erred in failing to include the tax account in the distribution of marital assets. Assignment of Error II is granted. III Appellant argues the trial court erred in double counting the Allis-Chalmers tractor. We agree. Appellant testified the tractor was sold at auction and the money was placed in escrow. T. at 58-59. Appellee does not dispute appellant was awarded the value of the tractor plus the escrow account which contained the proceeds of the sale. See, Appellee's Brief at 11. As a result of this double counting, appellant was twice assessed credit for the value of the tractor ($1,350.00) creating an inequity. Upon review, we find the trial court erred in doubling counting the tractor. Assignment of Error III is granted. IV Appellant claims the trial court erred in classifying the flatbed trailer as marital property and in distributing said property to appellant. We agree. Appellant claims he purchased the trailer on November 11, 1988. Appellant argues because the trailer was purchased prior to the marriage, it should be deemed separate property and awarded to him without credit to appellee. A review of the record establishes no testimony or documention was given to the magistrate regarding the trailer's purchase date. Appellant argues he did not offer any such evidence because appellee had admitted in her November 6, 1996 financial statement that appellant owned the trailer prior to marriage. Appellee claimed the trailer was marital property via an amended financial statement prepared one day prior to hearing. See, Plaintiff's Exhibit 32. During the objection hearing, appellant brought these facts to the trial court's attention, and produced a sales receipt for the trailer dated November 8, 1988 (see, Defendant's Exhibit AA at page 22). March 11, 1998 T. at 12. Upon review, we find the trial court erred in finding the trailer to be marital property. The trailer was acquired prior to the marriage and as such is appellant's separate property. Assignment of Error IV is granted. V Appellant claims the trial court erred in valuing the Mayer Loan. We disagree. It is undisputed the parties borrowed money from Floyd and Eva Mayer. What is in dispute is the amount. Appellant testified the amount was $15,000 and appellee testified the amount was $10,000. T. at 91, 131. Appellant testified the money was borrowed from four different life insurance policies owned by the Mayers as evidenced by Defendant's Exhibit M. T. at 132. In Conclusion of Law No. 7, the trial court held as follows: Regarding the amount of the loan from the Mayer's the evidence is in dispute. Defendant testified that the amount borrowed was $15,000.00. Defendant's Exhibit M merely shows that the Mayers' borrowed $5,737.90 against their life insurance policy. Meanwhile the Magistrate finds that plaintiff was more credible than the Defendant and therefore finds the $10,000.00 amount contained in Plaintiff's Exhibit 32 is the more reliable figure. Appellant argues this interpretation of Defendant's Exhibit M was erroneous because the magistrate only considered one page of the four page exhibit. The trial court heard this argument at the objection hearing and subsequently overruled it. March 11, 1998 T. at 8. Clearly the trial court found appellee's valuation of the loan to be more credible. Credibility is an issue that lies with the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182. Upon review, we find the trial court did not err in valuing the Mayer loan. Assignment of Error V is denied. VI Appellant claims the trial court erred in its treatment of the 1984 Oday sailboat and its trailer. We agree in part. Appellant argues the boat and trailer were his separate property and should have been awarded to him without any credit to appellee. Appellant testified to making a $3,000 down payment on the boat prior to marriage. However, the boat was not titled to appellant until December 1, 1993, after the marriage had commenced (see, Defendant's Exhibit L). T. at 128-129. Appellant testified the trailer was titled to him on April 18, 1989, prior to the marriage (see, Defendant's Exhibit K). T. at 127-128. Upon review, we find the trial court did not err in finding the boat to be marital property as it was acquired during the marriage. However, the trial court did err in finding the trailer to be marital property. The trailer was acquired prior to the marriage and as such is appellant's separate property. Appellant also argues the trial court assessed incorrect valuations on the boat and trailer. Given the fact we deemed the trailer to be separate property, we will address this challenge as it pertains to the boat only. The trial court awarded appellant the boat assessing a value of $15,000. Appellant argues said value is too high. Appellant testified the boat was purchased for $16,000 and currently the boat and trailer had a combined worth of less than $9,000. T. at 129-130. In a personal financial statement dated May 6, 1996, six months prior to the divorce complaint being filed, appellant listed the boat as having a fair market value of $15,000. See, Plaintiff's Exhibit 14. There was no other evidence before the trial court regarding the boat's valuei.e., professional appraisal. Upon review, we find the trial court did not err in assessing the boat's value at $15,000. Assignment of Error VI is granted in part and denied in part. VII Appellant claims the trial court erred in valuing his two motor vehicles. We agree. The trial court awarded appellant his 1983 GMC truck and his 1988 Park Avenue assessing their value at $6,000 each. In Finding of Fact No. 30, the trial court found appellant had sold these vehicles for $1,500 (GMC truck) and $1,900 (Park Avenue) in contravention of a restraining order. In his May 6, 1996 personal financial statement, appellant valued each vehicle at $6,000. There was no other evidence before the trial court regarding the vehicles' value i.e., professional appraisal. In Conclusion of Law No. 6, the trial court held "[d]efendant's opinion of the value of his two former vehicles as indicated on May 6, 1996 is more credible than the amount he realized from their sale since the transactions were in contravention of the restraining order." It appears the trial court adopted appellant's $6,000 figures because appellant sold the vehicles. If the trial court's intent was to "punish" appellant for violating the restraining order, then it should have addressed this issue separately. Upon review, we find the trial court erred in valuing the vehicles at $6,000 each in light of the fact they were sold for $1,500 and $1,900. Assignment of Error VII is granted. VIII Appellant claims the trial court erred in dividing the capital gains tax obligation. We disagree. Defendant's Exhibit P evidences the parties' capital gains tax obligation of $16,200 from the sale of the farm. This obligation was equally divided between the parties. Appellant argues he should have been assessed full responsibility for this obligation because the Internal Revenue Service will come after him if appellee fails to report her half of the obligation on her tax return correctly. We note appellant is basing his argument on facts that may never occur. If such a situation should arise, appellant can institute a contempt proceeding against appellee. Upon review, we find the trial court did not err in dividing the capital gains tax obligation between the parties. Assignment of Error VIII is denied. IX Appellant claims the trial court erred in distributing the parties' oil wells. We disagree. Appellant testified oil and gas wells were acquired during the marriage. T. at 29. Said wells were appraised at $19,000. See, Plaintiff's Exhibit 11. Appellant argues he should have been awarded the wells with no credit to appellee because the wells constitute his primary source of income. We note appellant owns EBS Associates, an insurance agency, and has been engaged in the insurance business for approximately twelve years. T. at 9. While the wells may significantly contribute to appellant's income, they are not appellant's sole source of income. As the wells were acquired during the marriage, the trial court did not err in finding them to be marital property. Assignment of Error IX is denied. The judgment of the Court of Common Pleas of Stark County, Ohio, Family Court Division is hereby affirmed in part and reversed in part. By Farmer, J., Wise, P.J. and Hoffman, J. concur. -------------------- -------------------- -------------------- JUDGES For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Stark County, Ohio, Family Court Division is affirmed in part, reversed in part and remanded to said court for further proceedings consistent with this opinion. Costs to appellant. -------------------- -------------------- -------------------- JUDGES Hon. John W. Wise, P.J., Hon. William B. Hoffman, J., Hon. Sheila G. Farmer, J., JUDGES.

2016-07-06 06:35:58.081231+00

OPINION {¶ 1} Appellants Carol and James Costlow appeal a judgment of the Court of Common Pleas, of Licking County, Ohio, affirming a decision of the Etna Township Board of Zoning Appeals finding them in violation of Section 910 of the Etna Township Zoning Resolution, for storing and warehouse materials outside: {¶ 2} "I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY FINDING THAT A PREPONDERANCE OF RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT THE DECISION OF THE BZA IN FINDING THAT APPELLANTS' USE OF THE STORAGE CONTAINERS DID NOT CONSTITUTE AN ACCESSORY USE PERMITTED UNDER THE ETNA TOWNSHIP ZONING RESOLUTION. {¶ 3} "II. THE TRIAL COURT ERRED AS A MATTER OF LAW, BY FINDING THAT ESTOPPEL AND LACHES DID NOT PREVENT THE BZA FROM FINDING THE ALLEGED ZONING VIOLATIONS. {¶ 4} "III. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY FINDING THAT A PREPONDERANCE OF RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT THE DECISION OF THE BZA IN FINDING THAT APPELLANTS' HAVE NOT AND OR WILL NOT SUFFER AN UNNECESSARY HARDSHIP BY STRICT APPLICATION OF THE ETNA TOWNSHIP ZONING RESOLUTION. {¶ 5} "IV. THE TRIAL COURT ERRED, AS A MATTER OF LAW, WHEN IT DETERMINED THAT THE BZA DID NOT ACT UNREASONABLY IN EXERCISING ITS DISCRETION IN DENYING APPELLANTS' APPEAL BASED ON AESTHETIC ISSUES SURROUNDING THE USE OF OUTSIDE STORAGE AND USE OF INTERMODAL/TRAILER STORAGE CONTAINERS ON THE PROPERTY. {¶ 6} "V. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN AFFIRMING THE BZA'S ORDER THAT RESULTED FROM CONSTITUTIONAL DUE PROCESS DEPRIVATIONS AS APPLIED TO APPELLANTS." {¶ 7} The instant case involves a six-acre tract of land owned by appellants in Pataskala, Ohio. James Costlow purchased the property for operation of a retail carpet business. At the time he purchased the property, it contained no warehouses, storage containers, or other materials related to handling goods. After purchasing the property, he immediately began using and storing items on the premises for use in his business. Shortly after buying the property, James Costlow married appellant Carol Costlow, and devised one-half of his interest in the property to her. In addition to their primary business, which is a retail carpet business, appellants engage in the buying and selling of other material goods, such as forklifts, picnic tables, carpet shelving, and wood pellets for stoves, which they purchase from other businesses which are liquidating. {¶ 8} In November of 2000, appellants received a warning letter from the Etna Township Zoning Inspector. The violation notice related to disabled vehicles and to the improper warehousing of materials outside on the property. Specifically, appellants were storing materials such as iron, wire, metal shelves, workbenches, reenforcement rods, forklifts, and forklift components, outside. In addition, while appellants have six warehouse buildings on the premises, and a residential building on the premises, they use multiple outside storage containers, designed for intermodal railroad transportation, to hold carpet, padding, and wood. Use of these outside storage containers is not uncommon in the carpet industry, as a carpet retailer has to keep defective carpet away from the retail inventory. {¶ 9} As to the disabled vehicles violation, at the time of the zoning inspector's first visit to the property, a car was stored above ground, that appellants allege it was lifted off the ground to allow concrete to be poured under it. An RV was located on the property, which appellants at one time intended to use as a mobile showroom for their carpet, but gave to a homeless man to live in following notice of violation. A boat, designed as a motor boat, was located on the property, although it did not have motor. Appellant James Costlow claimed that he intended to use the boat as a rowboat. {¶ 10} After first receiving notice of violation in November of 2000, appellant Carol Costlow spoke several times on the telephone to the zoning inspector, asking him to clarify the violations. The zoning inspector sent an identical warning letter to appellants in December of 2000. On May 17, 2001, the zoning inspector again visited the property, accompanied by a township trustee. Appellant James Costlow was present on the property at that time and spoke with the inspector and the trustee. Appellant pointed out efforts he had made to comply with the zoning resolution, including constructing a wall along one portion of the premises, and moving the metal and wood materials stored outdoors to one location on the property. In addition, appellants had removed all of the disabled vehicles except for the boat. The zoning inspector determined that the continued storage of materials outside, and the use of the outdoor storage containers, still constituted violations of the Etna Township Zoning Resolution, and issued a notice of violation on May 29, 2001. {¶ 11} Under Section 910 of the Etna Township Zoning Resolution, governing districts zoned "GB" (general business), permitted uses include wholesale business or warehousing, if conducted entirely in an enclosed building; building materials and sales if conducted entirely in an enclosed building; and accessory buildings and uses. {¶ 12} The case proceeded to hearing before the Etna Township Board of Zoning Appeals. Appellants argued that the use of the outside storage containers and storage of materials outdoors on the property constituted an accessory use to the retail carpet business. They also claimed that the vehicles located on the property were not at any time disabled, and had been removed at the time of the hearing. Following the hearing, the Board of Zoning Appeals dismissed the charge of violation of the disabled vehicles resolution, finding that all vehicles except the boat had been removed from the property, and ordered appellants to remove the boat within 30 days, or place it inside. The Board of Zoning Appeals found a violation of Section 910 of the Zoning Ordinance, finding that the outdoor storage of materials and use of the intermodal storage units for carpet and padding was not an accessory use of the property. {¶ 13} Appellants appealed the case to the Licking County Court of Common Pleas pursuant to R.C. 2506.04. The court affirmed the decision of the Board of Zoning Appeals. I {¶ 14} In their first assignment of error, appellants argue that the court erred in affirming the decision of the Board of Zoning Appeals that the use of outdoor storage on the property is not an accessory use as defined in the zoning resolution. {¶ 15} Pursuant to R.C. 2506.04, the common pleas court, on appeal from an administrative agency, may find that the order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record. The common pleas court weighs the evidence in the record, and may consider new or additional evidence only under certain circumstances. Smith v. Granville Twp. Board of Trustees,81 Ohio St.3d 608, 612, 1998-Ohio-340. We must affirm the decision of the common pleas court unless we find, as a matter of law, that the decision is not supported by a preponderance of reliable, probative, and substantial evidence. Id. at 613. {¶ 16} The Etna Township Zoning Resolution specifically prohibits the outdoor warehousing of materials for use in a business. At page 14 of their briefs, appellants contend that it is undisputed that intermodal storage containers do not constitute structures or buildings as defined in the resolution. However, appellants argue that the use of such containers is an accessory use to their carpet business. The zoning resolution defines accessory use as a use on the same lot with, and of a nature customarily incidental and subordinate to the principle use or structure. {¶ 17} Robert Pendleton, a carpet salesman, testified that use of intermodal storage containers was not uncommon in the carpet business. He testified that because used carpet must be kept separate from new carpet, it is not uncommon to see such containers used to store used carpet and padding. However, he did not testify that such containers were customarily used in the business. Robert Birchfield, a wholesale carpet dealer, testified that he uses storage containers similar to those used by appellants to store carpet. However, he did not testify that carpet dealers customarily use such containers. While there is some evidence in the record that these types of storage containers are used in the carpet industry, we cannot find that the finding of the court that use of the containers did not rise to the level of what is customary in the industry is unsupported by a preponderance of reliable, probative and substantial evidence. {¶ 18} The first assignment of error is overruled. II {¶ 19} Appellants argue that enforcement of the zoning resolution is barred by estoppel, res judicata, and laches. {¶ 20} As to the claim of res judicata, appellants argue that because their application for re-zoning of the property was approved in 1997, and because objections to the application similar to those raised by the instant action were raised by residents at the hearing for re-zoning, the issue of violation of the zoning resolution is foreclosed by the zoning commission's approval of the re-zoning application. {¶ 21} The doctrine of res judicata does not apply to legislative acts, which are always subject to amendment by the legislative body that enacted them, and therefore not final in the same sense that a judgment of a judicial body is final. Grava v. Parkman Twp., 73 Ohio St.3d 379,1995-Ohio-331, syllabus. The trial court did not err in concluding that the decision of the zoning commission approving the application for re-zoning, and thus changing the zoning from "LB" to "GB", was a legislative act, as it modified the zoning ordinance. Therefore, the doctrine of res judicata does not bar the instant proceeding by the zoning inspector. {¶ 22} Appellants also argue that the township is estopped from issuing a violation, as they have been storing materials outside and using outside storage containers since their purchase of the property. They also argue that because the township approved the re-zoning application, the township is estopped from complaining about violations which existed at that time. {¶ 23} This court has previously found the doctrine of estoppel inapplicable to prohibit the enforcement of a zoning regulation. Dilerv. Monroe Twp. Zoning Commission (August 13, 1982), Knox Appellate No. 82-CA-08, unreported. The doctrine of estoppel does not preclude the zoning inspector and Board of Zoning Appeals from enforcing the zoning resolution against appellant. {¶ 24} As to the doctrine of laches, appellants have failed to separately argue this issue in their brief, although claimed as error in the statement of the assignment of error. For the same reason that estoppel and res judicata do not apply to the instant action, the action is not barred by laches. {¶ 25} The second assignment of error is overruled. III {¶ 26} Appellants argue that the court erred in failing to reverse the decision of BZA, as appellants will suffer unnecessary hardship by strict application of the zoning resolution. {¶ 27} Appellants cite Trent v. German Twp. Bd. of Zoning Appeals (2001), 144 Ohio App.3d 7, in support of their argument. However, as noted by the trial court, the issue of unnecessary hardship arose in that case because the issue was whether the claimant was entitled to a variance, not whether a use is a violation of the township zoning resolution. Appellants have not requested a use variance in the instant case. Further, as noted by the court, the testimony indicated that appellants had six warehouse facilities on the property. The containers did not constitute the sole or even greater portion of the storage space on the property, and appellants thus did not demonstrate substantial hardship by removal of containers and outdoor storage. {¶ 28} The third assignment of error is overruled. IV {¶ 29} Appellants argue that the court erred in affirming the decision of BZA, as the decision was based solely on aesthetic issues surrounding the use of intermodal storage containers and outside storage on the property. {¶ 30} While there is some reference to the aesthetics of the property in the record, the decision of BZA was not based on pure aesthetics. As discussed earlier in this opinion, the outdoor warehousing of materials is specifically prohibited by the zoning ordinance, and appellants failed to demonstrate that the use of the storage units constituted an accessory use as defined in the zoning resolution. {¶ 31} The fourth assignment of error is overruled. V {¶ 32} Appellants argue that the court erred as a matter of law in affirming the order of BZA, as the resolution was unconstitutionally applied to appellants. {¶ 33} Appellants first claim that they were denied due process, as the prosecutor argued the case on behalf of the zoning inspector, presenting a conflict of interest. Appellants argue that because the office of the Licking County Prosecutor represents and advises the township board of trustees and the Board of Zoning Appeals, representation of the zoning inspector before BZA represented a conflict of interest. Appellants further note that the prosecutor previously represented Carol Costlow when she was a trustee for Etna Township. {¶ 34} The court did not err in finding no conflict of interest in the representation of the zoning inspector by the prosecuting attorney. Despite the fact that appellant Carol Costlow was a township trustee, any representation by the prosecuting attorney on her behalf was completely unrelated to the action at bar. Further, in the appeal brought to BZA by appellants, the assistant prosecuting attorney did not render any advice or represent the Board of Zoning Appeals. Rather, at that time, her representation was solely of the zoning inspector. As noted by the court, the office of the Licking County Prosecutor is the legal advisor for the township and its interests as espoused in the township zoning resolution. Appellant has demonstrated no specific prejudice from the prosecutor's representation of the zoning inspector. {¶ 35} Appellant argues that the zoning resolution is void for vagueness, as it does not clearly set forth sufficient criteria to guide the Board of Zoning Appeals in the exercise of its discretion. As noted by the court, the testimony before the BZA demonstrated some confusion with regard to definitions of "structure" and "use," which stemmed from confusion over whether outside storage containers should be defined as a structure, and/or a use. However, as discussed by the court, the zoning resolution sets forth specific definitions of "structure" and "accessory use," and is not void for vagueness. The ultimate decision by the BZA approving the violation issued by the zoning inspector is supported by the pertinent provisions of the zoning resolution. {¶ 36} Appellants also argue the final order is vague, in that it fails to adequately describe the premises at issue. Appellants argue that the order sets forth a finding that the appellants are conducting their warehouse operation entirely outside of an enclosed building, when in fact, the evidence before BZA indicated that they use six warehouses on the premises for their business. There was some testimony by Jim Clark, a carpet layer for appellant, that the property was full of outside storage. Tr. 176. There also was evidence to suggest that much of the merchandise appellants purchased from liquidating businesses, which may or may not be related to their carpet business, would be stored outside. Appellants' accountant testified that every time he came to the property, something different was on the premises for re-sale. However, it is clear from the order that regardless of whether the statement concerning the amount of outside storage was factually correct, the Board of Zoning Appeals found the use of the storage containers and other outside storage to be a non-conforming use of the property. The order is not unconstitutionally vague. {¶ 37} Finally, appellants argue that their due process rights were violated by the warrantless search of their property by the zoning inspector, and thus the issuance of the violation is unconstitutional. Appellants argue that because the inspector entered their property and took photographs without their consent, the inspector engaged in a warrantless search of their property in violation of their due process rights. {¶ 38} The testimony before BZA indicated that on one occasion, the inspector entered the property without appellants' consent, and took photographs. However, the testimony also indicated that subsequently, the zoning inspector entered appellants' property twice with their consent. On one of these occasions, the inspector was accompanied by a township trustee, and both met with appellant James Costlow. The testimony indicated the photographs were taken on this occasion with the consent of appellants. Because appellants subsequently permitted the inspector to enter the property for the purpose of viewing the area in relation to the violation notice, and permitted the inspector to take photographs, and the inspector issued a violation notice based on this later visit, any error in the initial warrantless search was cured. {¶ 39} The fifth assignment of error is overruled. {¶ 40} The judgment of the Licking County Court of Common Pleas is affirmed. By Gwin, P.J., Edwards, J., and Boggins, J., concur Topic: zoning — accessory use

2016-07-06 06:35:56.588853+00

Doan

This timely appeal follows a jury verdict finding appellant, Valerie Jones, guilty of trafficking in drugs, a violation of R.C. 2925.03(A)(1). Appellant was sentenced as appears of record. The facts surrounding the offense are irrelevant for purposes of this appeal. Appellant's single assignment of error alleges: "The trial court erred to the prejudice of Defendant-Appellant by completely denying her request, during voir dire, to examine prospective jurors regarding racial bias." The record reflects that appellant is a black female. Defense counsel was addressing a black prospective juror on voir dire when the following verbal exchange took place: "Q. Okay. There is going to be, as I'm sure you're already prepared, there is going to be some obvious question for you. You're not going to bend over backwards to find in favor of my client, because you and her [sic] happen to be a member of the same race? "A. No. "The Court: Objection. I do not permit this in this court. "Mr. Yaros: Do you mean to tell me — "The Court: Any alluding to the race will be stricken from the record. "Mr. Yaros: Is the Court saying that I'm not allowed to ask any questions of any prospective member about race? And I would ask for a clarification. "The Court: Don't discuss the matter of race in this court. "Mr. Yaros: Any prospective juror? "The Court: That's right. "Mr. Yaros: All right. Note my *Page 332 exception. And I heartily object and accept [sic]." The issue squarely presented is whether or not the trial court abused its discretion in completely foreclosing voir dire examination of prospective jurors in the area of racial bias or prejudice and if so, whether the abuse of discretion rises to reversible error. Crim. R. 24(A) provides for the examination of prospective jurors: "Examination of jurors. Any person called as a juror for the trial of any cause shall be examined under oath or upon affirmation as to his qualifications. The court may permit the attorney for the defendant, or the defendant if appearing pro se, and the attorney for the state to conduct the examination of the prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the state and defense to supplement the examination by further inquiry." Crim. R. 24(B)(9) provides: "Challenge for cause. A person called as a juror may be challenged for the following causes: "* * * "(9) That he is possessed of a state of mind evincing enmity or bias toward the defendant or the state; but no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial." The rule further states that the validity of each challenge shall be determined by the court. It is obvious to this court that racial, ethnic, or religious biases are realities in our society and are proper subjects of voir dire inquiry within the context of Crim. R. 24(B)(9). This must be so in order to ensure the right to trial by an impartial jury as embodied in the Ohio and United States Constitutions. If such was not the interpretation, the rule regarding challenges for cause based on a biased state of mind would be superfluous, as grounds for such challenges could never be developed unless such state of mind was volunteered by a prospective juror, a rather unlikely happenstance not contemplated by the rule. The trial court may limit questioning in this area, or undertake the examination itself, so long as the broad or general meaning of the inquiry is understood by prospective jurors in order to intelligently respond, but the court may not totally preclude or foreclose any and all questioning on the subject. The appellee argues that our decision in State v. Sebastian (May 12, 1982), Hamilton App. No. C-810358, unreported, sustains the trial court's ruling in the matter sub judice. Such argument is misplaced, as our ruling in Sebastian, supra, allows the trial court to control the scope and extent of voir dire examination providing general inquiry be permitted into biases in favor of, or against either party that would interfere with the impartial consideration between them. Inherent in our holding in Sebastian,supra, is the determination that a clear abuse of discretion occurs where a total preclusion or foreclosure of good faith voir dire examination as to biases is imposed, and such abuse of discretion is reversible error. Appellant's assignment of error is well-taken. The decision of the trial court is reversed and the cause is remanded for further proceedings consistent with law and with this opinion. Judgment reversed and cause remanded. PALMER, P.J., and KLUSMEIER, J., concur. *Page 333

2016-07-06 06:35:56.898467+00

Wolff

OPINION {¶ 1} Carlos Duane Ellison appeals from a judgment of the Montgomery County Court of Common Pleas, which convicted him of possession of cocaine in violation of R.C. 2925.11(A). Ellison had pled no contest to the charge after the trial court overruled his motion to suppress evidence. {¶ 2} The events that gave rise to this appeal are as follows. {¶ 3} On February 6, 2001, at approximately 7:45 p.m., police officers observed a vehicle in which Ellison was a passenger stop in front of a known drug house. Ellison ran into the house for a few moments and then returned to the vehicle. When the vehicle pulled away, the officers stopped it for a cracked windshield violation. As the vehicle pulled to the curb, the officers observed Ellison "slumping down into the seat." The driver did not have a valid license, and Ellison could not produce formal identification, although he did furnish certain identifying information. Ellison was asked to step out of the vehicle, and Officer House conducted a pat down search, whereupon he felt an object that he knew to be marijuana between Ellison's buttocks. The officers were apparently involved in some type of a scuffle with Ellison in their efforts to remove the marijuana from his pants. They then placed him in the back of the cruiser. Because the officers were not satisfied with the identifying information provided by Ellison, they transported him to the county jail. When they arrived at the jail, House saw that the tongue of Ellison's right boot was pushed down into his shoe, which was not how it had been positioned when he was placed in the cruiser. When the officers searched the rear floorboard of the cruiser where Ellison had been seated, they found a flattened clear plastic baggie containing crack cocaine. {¶ 4} Ellison was charged with possession of cocaine and entered a plea of not guilty. He filed a motion to suppress the evidence against him. After a hearing *Page 272 on the motion, the trial court overruled the motion to suppress, and Ellison changed his plea to no contest. The trial court found Ellison guilty. He was sentenced to community control sanctions for a period not to exceed five years, and his driver's license was suspended for six months. {¶ 5} Ellison raises one assignment of error on appeal: {¶ 6} "THE TRIAL COURT ERRED BY OVERRULING MR. ELLISON'S MOTION TO SUPPRESS EVIDENCE DISCOVERED AS A RESULT OF BEING ILLEGALLY SEIZED AND SEARCHED." {¶ 7} Ellison claims that he was illegally arrested for a minor misdemeanor possession of marijuana and that the evidence against him, i.e., the crack cocaine, was a product of this illegal arrest. Specifically, Ellison claims that he could only have been arrested pursuant to R.C. 2935.26 if he had failed to provide sufficient identifying information and that he did not fail to provide such information. {¶ 8} R.C. 2935.26(A)(2) provides, in pertinent part, that a law enforcement officer shall not arrest a person who commits a minor misdemeanor, but shall issue a citation, unless the offender cannot or will not offer satisfactory evidence of his identity. When a minor misdemeanant is not carrying formal identification, merely saying who he is, along with an address, Social Security number, and date of birth, is not sufficient evidence of his identity. State v. Hudson (Jan. 17, 1997), Montgomery App. No. 15757, citing State v. Satterwhite (Jan. 25, 1995), Montgomery App. No. 14699. Some additional corroboration is required. Id. Police are not required to go to extraordinary lengths to verify identification information, but they cannot avail themselves of the identification exception to the citation, only rule set forth at R.C. 2935.26(A)(2) by refusing to attempt to verify identification information if the means for doing so are readily available. State v.Terry (Feb. 28, 1997), Montgomery App. No. 15796; Satterwhite, supra. Courts must apply a standard of objective reasonableness in determining what type of proof is satisfactory. State v. DiGiorgio (1996),117 Ohio App.3d 67, 70. {¶ 9} The information available to Officer House about Ellison's identification at the time of his arrest was as follows. Ellison initially indicated that he had identification on his person and then indicated that he did not. From these conflicting answers, House concluded that "this individual did not want me to know who he, in fact, is." When he was unable to produce formal identification, Ellison gave House his name, address, date of birth, and Social Security number. House was able to verify that a person named Carlos Ellison had that date of birth and Social Security number; however, because Ellison did not live in Montgomery County, the officer was apparently unable to verify the address. Ellison was also able to provide some information about his prior encounters with *Page 273 the police, which were verified by computer data from the cruiser, but he did not have total recall about them. {¶ 10} At the hearing on the motion to suppress, House testified that he had been given false information numerous times, including dates of births and Social Security numbers, only to find out later that the person was lying. House also testified that, because Ellison had been uncooperative, House had felt that he "might not comply with the Court order or order-in date to come and pay the fine or * * * appear in Court for the citation," and that this was part of the reason that he arrested Ellison rather than issue a citation. {¶ 11} We have held that, where a person stopped for a minor misdemeanor furnishes the police officer with his name, address, and Social Security number, and that information is verified by computer, the person has offered satisfactory evidence of his identity. DiGiorgio,117 Ohio App.3d at 70; Terry, supra. "While an imposter might, with relative ease, be able to furnish the name and address of the person whose identity he assumes, it is less likely that he will be able to furnish that person's Social Security Number. * * * [W]e believe that possibility to be so remote as to render objectively unreasonable [the officer's] rejection of the information" provided. DiGiorgio,117 Ohio App.3d at 70. {¶ 12} Based on the facts presented in this case, we conclude that House's suspicions about Ellison's identity were not objectively reasonable. As in DiGiorgio, the officer verified Ellison's name and Social Security number by computer. Although House was unable to verify Ellison's address, he did have two other pieces of information that had not been available in DiGiorgio: a date of birth and information about prior contacts with the police. Ellison provided the proper date of birth and at least some accurate information about prior encounters with the police. The sum of this information was "satisfactory evidence of his identity" under R.C. 2935.26(A)(2) as interpreted by this court. Moreover, while we recognize that concern for whether a minor misdemeanant will appear in court following the issuance of a citation is part of the rationale behind the identity exception to the citation only rule of R.C. 2935.26(A), see Satterwhite, supra, this concern, in itself, cannot justify an arrest where the minor misdemeandant has provided verifiable evidence of his identity. {¶ 13} The assignment of error is sustained. {¶ 14} The judgment of the trial court will be reversed. FAIN, J. and YOUNG, J., concur. *Page 274

2016-07-06 06:35:57.654571+00

Koehler

On January 11, 1994, the Last Will and Testament of Frank D. Martin ("testator"), who died December 1, 1993, was admitted to probate in the Clinton County Probate Court. On February 3, 1994, plaintiff-appellant, Nancy V. Martin, filed a complaint seeking the trial court's direction and judgment as to a proper construction of Items III and V of the will. *Page 271 Testator is survived by appellant, who was his spouse. Testator had only one child, Richard Martin. Richard Martin was adopted by testator, but was neither the natural nor adoptive son of appellant. Testator survived his son Richard Martin, who died in 1989. Richard Martin is survived by his only two children, defendants-appellees, Richard V. Martin and Maralyn Summers, n.k.a. Maralyn Arms. Item III of the will provides, "I give, devise and bequeath the rest, residue and remainder of all my property equally to my said wife, Nancy V. Martin, and to my son, Richard Martin, share and share alike." Item V of the will, which provides for the sale of decedent's farm and payment of legal debts, expenses, and taxes, states that "[t]he balance of said sale proceeds shall be distributable equally to my said son and wife, share and share alike." In interpreting this language, the trial court did not resort to extrinsic evidence. The trial court found that the testator intended to have R.C. 2107.52, Ohio's antilapse statute, apply in the event that his son predeceased him. The trial court further found that R.C. 2107.52 operated in this case to cause a stirpital distribution of Richard Martin's share to appellees. On appeal, appellant argues that the trial court's decision is against the manifest weight of the evidence because the language of the will and the extrinsic evidence admitted at trial demonstrate a testamentary intent for a per capita distribution. We disagree. R.C. 2107.52(B) provides that: "Unless a contrary intention is manifested in the will, if a devise of real property or a bequest of personal property is made to a relative of a testator and the relative was dead at the time the will was made or dies after that time, leaving issue surviving the testator, those issue shall take by representation the devised or bequeathed property as the devisee or legatee would have done if he had survived the testator." "In any action seeking construction of a will the court's sole purpose is to ascertain and carry out the intention of the testator. Such intention must be ascertained from the words contained in the will." Wills v. Union Savings Trust (1982),69 Ohio St.2d 382, 385, 23 O.O.3d 350, 352, 433 N.E.2d 152, 155. If the language of the will is unambiguous, extrinsic evidence is not admissible to vary, modify or alter a plainly expressed intent. Sandy v. Mouhot (1982), 1 Ohio St.3d 143, 1 OBR 178,438 N.E.2d 117; Steinbrenner v. Dreher (1942), 140 Ohio St. 305, 23 O.O. 502, 43 N.E.2d 283. A testator is presumed to have known of the existence and effect of the antilapse statute. Everhard v.Brown (1945), 75 Ohio App. 451, 31 O.O. 268, 62 N.E.2d 901. *Page 272 Appellant contends that the use of the phrase "equally, share and share alike" must be interpreted as requiring a per capita distribution. Use of these words, appellant claims, demonstrates an intent on behalf of the testator to defeat operation of the antilapse statute. The term "equally, share and share alike," when used in the context of a gift to a class, has been interpreted to require aper capita and not a per stirpes distribution. See Mooney v.Purpus (1904), 70 Ohio St. 57, 70 N.E. 894; First Natl. Bank ofSouthwestern Ohio v. Walther (Feb. 6, 1984), Butler App. No. CA83-08-091, unreported, 1984 WL 4322. However, the term does not automatically require a per capita distribution. See Gill v.Alcorn (1924), 19 Ohio App. 122. Reading the will in this case in its entirety, it is clear that the testator intended to make gifts to named individuals, not to a class. Further, the use of "equally, share and share alike" in the will has "no broader meaning than would be ascribed to the term `equally.'"Godfrey v. Epple (1919), 100 Ohio St. 447, 455, 126 N.E. 886,888. Thus, the term indicates only that appellant and Richard Martin were to each receive half of the proceeds remaining from the sale of the farm. The will manifests no intent on behalf of the testator to defeat the operation of R.C. 2107.52. Item II of the will provides "I give, and bequeath to my wife, Nancy V. Martin,if she survives me, all the tangible personal property I may own or have an interest in at the time of my death." The underscored language suggests that testator was well aware of the antilapse statute and that he was quite capable of employing language that would prevent its application when he so intended. The testator's intent can be found within the four corners of the will. Therefore, it is unnecessary to resort to the extrinsic evidence put forth by appellant. We conclude that the trial court properly applied the antilapse statute and found that appellees were entitled to a per stirpes distribution of the bequest to Richard Martin as if he had survived. Accordingly, appellant's sole assignment of error is overruled, and the judgment of the trial court is affirmed. Judgment affirmed. JONES, P.J., and WALSH, J., concur. FRED E. JONES, P.J., retired, of the Twelfth Appellate District, sitting by assignment. *Page 273

2016-07-06 06:35:57.721405+00

Petree

This is an administrative appeal from a judgment of the Franklin County Court of Common Pleas that reversed a decision of appellant, Ohio Civil Rights Commission, which found that appellee, city of Columbus, unlawfully discriminated against Timothy W. Liebhart on the basis of handicap in connection with his attempt to secure a position in the Columbus fire fighter training academy. The commission sets forth three assignments of error as follows: 1. "The common pleas court, as a reviewing court, abused its discretion by reweighting the evidence and substituting its judgment for that of the Ohio Civil Rights Commission." 2. "The common pleas court's decision should be reversed as a matter of law, because the court abused its discretion by applying the incorrect case law to the facts as found by the commission and adopted by the court." 3. "The commission established by reliable, probative and substantial evidence that the city violated R.C. 4112.02(A) by failing to permit Timothy Liebhart to attend its training academy." Timothy Liebhart filed a complaint with the commission asserting that the city of Columbus discriminated against him on the basis of his speech handicap. *Page 471 After investigation and attempts at conciliation, the commission issued a complaint against the city and an adjudication hearing was held before a commission hearing examiner. The hearing examiner issued a report, including findings of fact and conclusions law, which found that Liebhart was handicapped, but which further found that the city was justified in not selecting him as a fire fighter because his speech handicap rendered him unable to pass the required oral interview. The commission heard the matter on objections and rejected the hearing examiner's conclusion that the city's discrimination against Liebhart was justified. The commission therefore issued a cease and desist order and also ordered the city to place the complainant in the next available fire fighter training academy class. Pursuant to R.C. 4112.06, the city appealed this determination to the common pleas court, which reversed the commission's decision because the court felt that Liebhart's speech handicap rendered him unable to safely and substantially perform his duties without significant hazard to himself or others. The commission then appealed to this court under R.C. 4112.061. The commission's assignments of error essentially argue that the trial court erred in reversing the decision of the commission when there was substantial, reliable and probative evidence to support that decision. In Asplundh Tree Expert Co.v. Ohio Civil Rights Comm. (1991), 68 Ohio App.3d 550, 555-556,589 N.E.2d 102, 106, this court succinctly set forth the standards of review governing administrative appeals in civil rights cases. Judge Bowman wrote in the majority opinion that: "In reviewing a decision of the commission pursuant to R.C.4112.06, the common pleas court is required to give due deference to the commission's resolution of factual issues. * * * Due deference, however, does not require the common pleas court to inevitably accept every factual determination made by the commission. * * * Rather, in reviewing the evidence on the record as a whole, the common pleas court may set aside the administrative order if `* * * there exist legally significant reasons for discrediting certain evidence relied upon by the administrative body * * *.' * * * The role of this court in reviewing the judgment of the common pleas court, under R.C.4112.06, is to determine whether the common pleas court abused its discretion. * * * This court will affirm such judgment if there is a reasonable basis for the common pleas court decision." (Citations omitted.) To prove a prima facie case of handicap discrimination the commission must show (1) that the complainant was handicapped, (2) that the employer's action was taken at least in part because the complainant was handicapped, and (3) that even though the complainant was handicapped, the complainant could safely and substantially perform the essential functions of the job in question. Ohio Adm. Code 4112-5-02(K); Hazlett v. MartinChevrolet, Inc. (1986), 25 Ohio St.3d 279, *Page 472 281, 25 OBR 331, 333, 496 N.E.2d 478, 480;Asplundh, supra, 68 Ohio App.3d at 555, 589 N.E.2d at 105;Kent State Univ. v. Ohio Civ. Rights Comm. (1989), 64 Ohio App.3d 427,435, 581 N.E.2d 1135, 1140. The initial burden to establish the elements of a prima facie case falls upon the commission. Columbus v. Ohio Civil Rights Comm. (1985), 23 Ohio App.3d 178,180, 23 OBR 421, 423, 492 N.E.2d 482, 484. The burden then shifts to the employer to establish nondiscriminatory or legitimate reasons for its actions. Id. at 181, 23 OBR at 424, 492 N.E.2d at 485. For example, the employer has the burden to prove the occupational hazard defense contained in Ohio Adm. Code 4112-5-08(D)(3). See Ohio Adm. Code4112-5-08(D)(1). The evidence presented before the hearing examiner established the following facts. Timothy Liebhart served for ten years as a part-time auxiliary fire fighter with the Clinton Township Fire Department. During that time he fought about twenty to thirty fires and served without incident. In fact, his former supervisor and former co-workers characterized him as an "excellent" fire fighter. Indeed, he eventually became qualified to work on the emergency medical team and performed typical paramedic duties. When he left the department in 1988 he was second in command. In that capacity, he was the fire fighter in charge of the fire scene itself, overseeing and commanding all of the other fire fighters as they fought the fire. Liebhart was an able fire fighter with the department despite the fact that he has suffered nearly all of his life from a speech impediment. Specifically, Liebhart has a markedly severe stuttering disorder which prevents him from communicating effectively. In fact, his stuttering is so severe that it often takes him twice as long to communicate as it would take an ordinary person. Liebhart, who is thirty years old, has wanted to be a full-time fire fighter since high school and has taken extensive training to accomplish this goal in his life. He has successfully completed the state-mandated training courses for fire fighters and has been qualified in other areas as well. Liebhart applied with the city of Columbus in 1987 and began the long and arduous application process to become a city fire fighter. He passed the written civil service examination, the physical agility test, the physical examination, and the background investigation. Consequently, he was placed on the eligible list for admission into the city's fire fighter training academy. The last step in the city's process for selecting fire fighters are the so-called "oral boards." This consists of an oral interview before several experienced fire fighters who can observe the candidate, ask questions, and hear any additional information. Thus, the "oral board" is much like any other job interview except that it is conducted before several fire fighters at one time. The evaluation forms that the interviewers are required to fill out highlight the typical areas of inquiry. *Page 473 These areas include general history, marital history, personal history, residential history, financial history, employment history, military history, education history, criminal/traffic history, miscellaneous communications and appearance. After each category there is a space for the interviewer to note the candidate's responses or interviewer's impressions. Further, after each category there is a space where the interviewer is to rate the candidate as either "acceptable," "unacceptable" or that the interviewer has "reservations." The last part of the form has a space for the interviewer's overall rating of the candidate. Again, the interviewer is to indicate that the candidate is acceptable or unacceptable, or that the interviewer has reservations. The candidate must receive an overall acceptable rating to qualify for selection as a fire fighter. If the candidate fails the interview, however, the candidate can obtain a further interview with the city safety director, who is the person with actual hiring authority. However, the safety director follows the decision of the interview board almost all of the time. Liebhart had his oral interview on October 1, 1988. His stuttering became immediately apparent to his interviewers and was quite severe. It was so severe that the interview, which normally takes about fifteen minutes to complete, took a full forty-five minutes. Liebhart was unable to answer questions smoothly and stuttered on almost every other word. Liebhart was rated acceptable in every single area on the interview forms by every interviewer, except in the "communications" category, in which he received unacceptable marks from them. Further, they each gave him an overall unacceptable rating because of his stuttering. Thereafter, Liebhart had a further interview with the assistant safety director who was acting as interviewer in the place of the safety director. At the interview, Liebhart again stuttered badly. The assistant safety director likewise found him unacceptable because of his stuttering. At the commission hearing to contest the city's actions, Liebhart presented several witnesses who testified on his behalf. Jay Arnholt, a fire fighter who worked with Liebhart in Clinton Township, testified that he fought fires with Liebhart and worked on the emergency squad with him as well. He said Liebhart's stuttering never posed a problem. He said he trusted Liebhart and put his own life in his hands. Likewise, Dr. John Mason, a psychologist and former Clinton Township fire fighter, testified that Liebhart was "extremely competent." He said that around the engine house Liebhart had some problem with stuttering but when he had to fight a fire or go on an emergency squad run he communicated adequately. He said that he never encountered any problem with Liebhart's stuttering in either the simulated training fires in "fire school" or in any actual fire situations. Indeed, on one occasion at fire school the controlled fire "flashed over," or *Page 474 exploded, creating an emergency. Liebhart was the first one to see the flash in the smoke-filled room and yelled "get out" to the other fire fighters. Lieutenant J.R. Louks, Liebhart's supervisor in Clinton Township, picked Liebhart to serve under him as "lead" fire fighter when Louks was not present. Liebhart thus orchestrated the work of the other fire fighters at the scene of the fire, giving orders and talking over the radio. Louks recalled that when he was in a smoke-filled building with him, Liebhart communicated effectively. Further, he pointed out that, aside from being an excellent driver and pump operator, Liebhart had to communicate over the radio and walkie-talkie and also did so effectively. He said Liebhart's stuttering never posed a problem. In fact, he said that Liebhart taught new recruits how to use the pump and did not have any difficulties in doing so. Cathy Chester, a speech pathologist, evaluated Liebhart's stuttering disorder. She testified that he had a "markedly severe stuttering problem," which consisted of blockages and repetitions. She said that one could assume that his disorder significantly affected his everyday living. She found that stress did not affect his stuttering. She explained there was no concrete medical definition for stuttering and the cause of the disorder is unknown. She explained that the difficulty or struggle to speak that stutterers suffer from is very individualized. She further said that some people are able to "forget" that they stutter when they focus on something, like work, but then revert to stuttering in stressful social settings. Liebhart testified in his own behalf. By request of the city, the letter "p" was noted in the transcript to indicate pauses where he could not immediately answer the questions posed by counsel. He stuttered on most of his answers. He testified that he had stuttered since age eight and was diagnosed as having a stuttering disorder. It takes him twice as long to carry on a conversation and this affects his life in many ways. For instance, he said he did not go on to college because of his difficulty in speaking. He even shies away from trying to order food at restaurants. Despite his difficulties speaking in many situations, he has never had any problem at work. He said that no one ever complained about a communication problem. He said that he had been in emergency situations before where he had to yell out and he did so without stuttering. He said that even on the radio it is easier for him to communicate. He said he does not know why that is true but in his effort to get the job done he tends to think less about his stuttering and the words come out more quickly. The harder he tries to speak clearly, the worse his problem gets. *Page 475 The city presented several witnesses in an effort to establish that Liebhart's stuttering rendered him unqualified. Bruce Wolf, an eighteen-year veteran of the City of Columbus Fire Department, sat on the five-member oral interview board that interviewed Liebhart. He said it was a "tough interview" because Liebhart could not properly articulate his words. He said the interview took twice as long as usual. He marked Liebhart as unacceptable because he believed that in stressful, emergency situations, Liebhart's stuttering could delay his response and thereby possibly cause injury to himself or other fire fighters. He emphasized that at a fire scene, where visibility is poor, verbal communication is essential to stay out of danger. He admitted that neither he nor anyone else on the board was a speech therapist qualified to understand speech disorders. Dr. S. David Kriska, personnel psychologist with the city civil service commission, said that he is responsible for structuring the selection and promotion tests and procedures for the city police and fire departments. In that capacity, he studies the work done in various positions and creates job analyses. He then creates tests that try to predict a candidate's competence in the various tasks necessary to perform the job under analysis. The city has also commissioned several outside studies to do this type of analysis as well. He said the studies concluded that verbal expression is the second most important cognitive ability that a fire fighter must have. He explained that at the fire scene it is "critical" that the fire fighter be able to effectively communicate. He said the oral interview was established years ago to see how the candidate expressed himself or herself. He felt that this was a peculiar case and said it would not be cost-effective to expect to find a lot of stuttering problems in the general population. H.J. Dutko, assistant chief of the fire department, echoed Dr. Kriska's assessment of the need for proper communication by a fire fighter. He emphasized that a fire in and of itself is not an emergency to a fire fighter, but part of his daily job. But he said emergencies do occur on the job when a second can make the difference between life and death. He said all fire fighters must meet the communication requirements because at any given time they may be called to a major fire. He added that there are some other areas apart from actual fire fighting where communication is important as well. For instance, fire fighters perform building inspections and speak before groups to foster public relations. He admitted that Clinton Township fire fighters often work side by side with Columbus fire fighters and that the training for both departments is very much the same. Wendall Metz, the assistant safety director who interviewed Liebhart, said that because of the stuttering, Liebhart's interview took forty-five minutes instead of the usual fifteen minutes. He said he recommended that Liebhart not be hired *Page 476 because of his stuttering. He said he did not want to expose the city to liability if something did happen because of Liebhart's stuttering. Since the city has conceded that Liebhart was denied employment on the basis of his handicap, the only issues to be addressed here under the Hazlett test are whether Liebhart was handicapped and whether he was qualified to substantially perform the position without significant hazard to himself or others. The definition of "handicap" is contained in R.C.4112.01(A)(13), which reads: "`Handicap' means a medically diagnosable, abnormal condition which is expected to continue for a considerable length of time, whether correctable or uncorrectable by good medical practice, which can reasonably be expected to limit the person's functional ability, including, but not limited to, seeing, hearing, thinking, ambulating, climbing, descending, lifting, grasping, sitting, rising, any related function, or any limitation due to weakness and significantly decreased endurance, so that he can not perform his everyday routine living and working without significantly increased hardship and vulnerability to what are considered the everyday obstacles and hazards encountered by the nonhandicapped." In the present case, the trial court was correct in concluding that Liebhart's stuttering disorder constituted a handicap. Liebhart testified that he was diagnosed as having this disorder, which he had had since he was eight years of age. He testified that his stuttering made it twice as difficult to carry on a conversation and this significantly affected his life. Further, speech pathologist Cathy Chester testified that one could assume that such a severe speech impediment would significantly affect his life. One could expect that his speech disorder would create significant hardship and vulnerability in a variety of everyday settings. The city did not offer any affirmative evidence to the contrary. Hence, Liebhart was handicapped under R.C. 4112.01(A)(13). The last issue under the Hazlett test is whether Liebhart was qualified to safely and substantially perform the essential functions of the job in question. There is no doubt that clear, concise, and timely communication in the context of fighting a fire is an essential function of the job in question. The city presented abundant evidence to establish the importance of effective communication in fighting fires. Verbal expression is the second most important cognitive ability that a fire fighter must have. While there was also testimony that a typical fire fighter performs other duties like inspections and public relations activities, there was no evidence that these activities were essentials of the job. Moreover, there was no evidence that they had to be performed without any stuttering. The central dispute between the parties concerns whether Liebhart will be able to communicate quickly and effectively in a fire or emergency situation. The hearing examiner, who presided over the testimony, expressly found that Liebhart's *Page 477 stuttering was less of a problem when he was performing his duties as a fire fighter with Clinton Township than it was when he engaged in everyday conversation. The hearing examiner expressly found that his "stuttering did not interfere with the performance of his job duties." Nevertheless, the hearing examiner found Liebhart unqualified because he failed his oral interview. The hearing examiner simply treated the oral interview as an unassailable neutral test which the city had chosen to screen out candidates who could not communicate effectively. The hearing examiner felt that Liebhart could not contest his failure at the oral interview by evidence of his successful past job performance. In effect, the hearing examiner found the test to be conclusive. The commission wholeheartedly disagreed, stating that the oral interview was an improper selection device because it was an "insurmountable barrier to a speech impaired individual's employment opportunities to becoming a firefighter." The commission concluded that the city could have used alternative, less onerous criteria to gauge Liebhart's abilities, like considering his past work history. The trial court rejected the commission's reasoning. The court felt that while the commission had expertise in determining who was handicapped, the assistant safety director and the five experienced fire fighters who interviewed Liebhart observed him face to face and could better determine if his communication problem constituted a significant hazard in the fire fighting context. We agree with the trial court that safety is a paramount concern here and that a handicapped person need not be hired if his employment would create a significant risk of harm. SeeDiPompo v. West Point Military Academy (S.D.N.Y. 1991),770 F. Supp. 887, judgment affirmed, DiPompo v. West Point MilitaryAcademy (C.A.2, 1992), 960 F.2d 326 (dyslexic applicant for fire fighter position not qualified where he could not read language on explosive hazardous materials that were prevalent in the area). However, we must reject the trial court's attempt to discredit the commission's decision. Assuredly, whether analyzed as an element of being a qualified handicapped person who can "safely" perform the job or as an element of the occupational hazard defense, assessing the risks posed in a fire situation would naturally fall within the expertise of fire fighters. But the issue in this case is not whether stuttering would cause a danger in fighting a fire. It would. The issue is whether Liebhart's stuttering would cause such a problem. Liebhart presented substantial evidence that he does not stutter when fighting fires. Speech pathologist Cathy Chester provided expert evidence that this phenomenon occurs. His former co-workers also testified that he does not stutter in fire fighting situations. The hearing examiner, who was the only person to actually hear these witnesses and observe their credibility, could have found that these people were not being truthful but *Page 478 the hearing examiner said nothing of the sort. On the contrary, his findings of fact support the conclusion that Liebhart does not stutter in fire situations. The city did not present any expert evidence to contradict the expert testimony presented by the commission in the record. The only evidence it presented was the fact that Liebhart could not speak in a job interview — a totally different situation from that presented in a blazing building. The fire fighters and assistant safety director simply assumed that Liebhart's stuttering is caused by nervousness and would get worse in a stressful fire situation. In fact, Cathy Chester tested Liebhart and found that his speech did not get worse with stress. Not one of the individual fire fighters or the assistant safety director knew anything about speech disorders. Not one of them was qualified to gauge how bad or good this man's speech would be in a fire. They made their assessments of his abilities on the basis of assumptions about his handicap which had no basis in fact. This type of decisionmaking is exactly what the handicap discrimination law was designed to eliminate. The testimony showed that Liebhart performed differently at work than when being questioned either in an interview or at a hearing. Though the city's oral interview was designed to gauge normal verbal expression, the city presented no evidence to validate this test as a measure of Liebhart's own abilities. See Ohio Adm. Code 4112-5-03; cf. Colorado Civ. Rights Comm. v. N.Washington Fire Protection Dist. (Colo. 1989), 772 P.2d 70 (employer has burden to establish whether medical qualifying factors for entry level fire fighters were reasonably related to ability to do the job). The trial court abused its discretion by according more weight to the testimony of the interviewing fire fighters and the assistant safety director and discrediting the evidence relied upon by the commission. There was no reasonable basis for doing so in this case. The commission's decision was supported by substantial, reliable, and probative evidence. For the foregoing reasons, the commission's assignments of error are sustained. The judgment of the common pleas court is reversed and the cause remanded for further proceedings consistent with this opinion and in accordance with the law. Judgment reversedand cause remanded. JOHN C. YOUNG and BOWMAN, JJ., concur. *Page 479

2016-07-06 06:35:57.791407+00

Phillips

Plaintiff bank held mortgages on a property owned by Lester Creed and his wife, Letitia Creed, and on another property owned by Gerald F. Carver and his wife, Jean E. Carver. On May 5, 1949, the officers of plaintiff bank signed the following release of its mortgage on the property of Gerald F. and Jean E. Carver: "The conditions of this mortgage have been complied with and the same is here satisfied and discharged." Subsequently, that release was filed with the recorder of mortgages of Mahoning county for record. On May 7, 1949, that release was mistakenly recorded by such recorder on the margin of the mortgage plaintiff bank held on the property of Lester and Letitia Creed situated at Shilling Mills, where they conducted a restaurant. On June 13, 1950, defendant, Kline, obtained a judgment against Lester and Letitia Creed in the Court of Common Pleas. A search of the records of the clerk of that court and of the recorder of Mahoning county, *Page 407 made by him subsequent to June 13, 1950, revealed such mortgage had been released, and that the Creed property was free of judgment and mortgage liens. Claiming he was induced and influenced to withhold issuance of an order of sale of Creed's property to permit them to sell it and thus save them court costs, defendant claims he refrained from issuing such order of sale timely. Subsequently, Lester and Letitia Creed had domestic difficulties, as the result of which their business declined, and Letitia Creed refused to join Lester Creed in a deed to either of two bona fide purchasers of their property for an amount in excess of what it could have been sold for at the time of trial in the Court of Common Pleas. In September 1950, by the action we review, filed in the Court of Common Pleas, plaintiff bank claimed a lien on Creed's property, and contended that the release and satisfaction quotedsupra, and delivered to the recorder of Mahoning county, was intended as a release of its mortgage on the property of Gerald F. and Jean E. Carver, and prayed the Court of Common Pleas to strike from the recorder's record of its mortgage on the Creed property the mistakenly recorded cancellation and satisfaction, and that its mortgage lien be declared a lien on their property prior to defendant's judgment lien. The trial judge held, and entered his judgment accordingly, that since the recorder mistakenly released the plaintiff's mortgage on Creed's property the lien of plaintiff bank was entitled to be restored, and he restored its mortgage to priority over defendant's lien, and held: "An order to correct the mistake of the recorder by removing the Creed mortgage cancellation and entering such cancellation as of the Carver mortgage *Page 408 has, on motion, been made and is hereby renewed." Defendant Kline appealed from the finding and judgment of the trial court to this court on questions of law, and by brief inquires: "Does the restoration to record of a mortgage which has been recorded as discharged operate to endow it with priority over a lien obtained by an innocent third party during the time the discharge of said mortgage was of record?" By sole assignment of error defendant contends that: "The conclusion reached, and the judgment rendered by the trial court, is contrary to the law of Ohio in that it restored the lien of a mortgage which had been unqualifiedly released and cancelled of record, and in so doing awarded to said mortgage priority over the lien which had been acquired during the time said mortgage was released of record"; and consequently contends such judgment is prejudicially erroneous to defendant Kline. It is conceded that such a mistake of the recorder can be corrected, but not "at the expense of and to the prejudice of innocent intervening third parties." Appellant argues that if, as provided by Section 8542, General Code, mortgages are effective from the instant of delivery to the recorder for record, likewise release of a mortgage is effective from the instant of delivery thereof to such recorder. In the case of Commercial Building Loan Co. v. Foley,25 Ohio App. 402, 158 N.E. 236, in which the facts were similar to those in the case we review, the court said: "While the courts are not in accord on this question, the great weight of authority supports the right of plaintiff to enforce the lien of its mortgage. * * * "It is said in Heyder v. Excelsior Building Loan Assn.,supra: *Page 409 "`Between a mortgagee, whose mortgage has been discharged of record, solely through the unauthorized act of another party, and a purchaser who buys the title in the belief, induced by such cancellation, that the mortgage is satisfied and discharged, the equities are balanced, and the rights, in the order of time, must prevail. The lien of the mortgage must remain, despite the apparent discharge.'" In the opinion written in the case of Commercial Building Loan Co. v. Foley, supra, the court cited the case of Harris v.Cook, 28 N. J. Eq., 345, and said: "* * * that parties purchasing land may effectually protect themselves by requiring some proof that preceding mortgages have in fact been satisfied. But nothing, said the court, short of constant watch will protect a mortgagee against the making of a false entry of satisfaction." In paragraph one of the syllabus of the case of CommercialBuilding Loan Co. v. Foley, supra, the court announced as the law of that case that: "Where a first mortgage on real property is released on the record by the mistake of the recorder and thereafter the property is mortgaged to a second mortgagee and sold to purchasers, all of whom relied upon the record and did not know of the mistake, the first mortgage may be foreclosed against the second mortgagee and the purchasers, since none of the parties are at fault and all are equally protected by statutes, and in this situation the oldest claim must prevail." There seems to be no doubt that where, as in the case we review, the recorder mistakenly cancelled plaintiff's mortgage held on the property of Lester Creed and Letitia Creed instead of that held on the property of Gerald F. Carver and Jean F. Carver a *Page 410 court of equity may, as the trial court did, grant relief to plaintiff and set the erroneously made cancellation aside, notwithstanding that since the cancellation of the mistakenly cancelled mortgage judgment liens may have attached to the lands, especially when by granting such relief defendant was not damaged. If the recorder had not made the mistake to which reference has been made, defendant's lien would have been junior to the mortgage lien of plaintiff bank, and by correcting such mistake defendant's lien position remains the same. The evidence does not support defendant's contention that he "was induced by reason of the state of the record to pursue a course which if now taken from him will result in denying to him a lien, and that the property in question will not support the liens of the respective parties." Our conclusion, which is supported by 59 Corpus Juris Secundum, 364 to 367, is that the judgment of the Court of Common Pleas must be and hereby is affirmed. Judgment affirmed. GRIFFITH, J., concurs. NICHOLS, P. J., concurs in judgment. *Page 411

2016-07-06 06:35:57.855466+00

Strausbaugh

This is an appeal by plaintiff from a judgment of the common pleas court holding that a claim against the estate of which plaintiff was executrix was to be allowed, inasmuch as the claim was contingent and not barred by R.C. 2117.06. This cause was originally assigned to the accelerated calendar. Because this appeal concerns an issue which possibly may be of precedential value, we sua sponte order that this case be removed from the accelerated calendar and reassigned to the regular calendar. The primary issue in this case is whether the letter of credit signed by plaintiff's decedent, Byron L. Carter, is a contingent claim against the estate and therefore is not barred by the three-month presentment requirement of R.C. 2117.06. The record indicates that Byron Carter became a limited partner in Ranger Drilling Service No. 4, Ltd. ("Ranger") by tendering $10,000 cash and executing with Bank One of Columbus, N.A. ("Bank One") an irrevocable and transferable letter of credit in the amount of $90,000; that the letter of credit could be drawn upon no later than March 1, 1984; that Carter also executed an assumption agreement under which neither the partnership nor any holder of any letter of credit would be entitled to recover unless (1) the partnership or such holder surrendered the letter of credit to the undersigned (Carter), or (2) the partnership or such holder indemnified the undersigned for a draft made on the letter of credit; that on December 31, 1981, the letter of credit was assigned by Ranger to First City Bank of Dallas ("First City"); and that, thereafter, Ranger instructed Bank One to transfer its rights in the letter of credit to First City. The record further indicates that Byron Carter died on December 31, 1982; that plaintiff was appointed executrix of Carter's estate by the Court of Common Pleas of Franklin County, Probate Division, on January 11, 1983; that on February 29, 1984, Bank One received from First City a draft drawing on the letter of credit; that plaintiff was denied a motion for temporary restraining order and on March 5, 1984 Bank One paid First City $90,000 pursuant to the draft and letter of credit; that Bank One presented to plaintiff an affidavit of claim in the amount of $90,222.50; and that plaintiff did not sign the affidavit and Bank One pursued its claim in the court of common pleas. The trial court adopted the report of the referee, which determined that defendants' claim was contingent and therefore was not barred by the three-month *Page 84 presentment requirement of R.C. 2117.06. Plaintiff asserts the following single assignment of error: "The trial court erred in failing to hold that the defendants' claim against Byron Carter was barred by their failure to present such claim within three months of the appointment of the executor of his estate." R.C. 2117.06 provides, in pertinent part, that: "(A) All creditors having claims against an estate, including claims arising out of contract, out of tort, on cognovit notes, or on judgments, whether due or not due, secured or unsecured, liquidated or unliquidated, shall present their claims in one of the following manners: "(1) To the executor or administrator in a writing; "(2) To the executor or administrator in a writing, and to the probate court by filing a copy of the writing with it. "(B) All claims shall be presented within three months after the date of the appointment of the executor or administrator * * *." However, claims that are contingent need not be presented within the three-month time period in accordance with R.C.2117.06(E). Plaintiff contends that the focus must be on the debt which Carter owed; that the letter of credit was contingent but that the debt — that is, the loan made — was a fixed and unconditional obligation. She urges that Carter's underlying obligation was in no way dependent on any future event and therefore presentment of this obligation had to occur within three months of plaintiff's appointment as executrix. Defendants argue that First City and Ranger would not have drawn on the letter of credit unless certain events occurred. Therefore, the obligation was not fixed and need not have been made within the three-month period. Also, plaintiff acknowledged on a 1983 estate tax return the letter of credit as a contingent liability. The Supreme Court, in Pierce v. Johnson (1939), 136 Ohio St. 95, 16 O.O. 34, 23 N.E.2d 993, 125 A.L.R. 867, defined a contingent claim as one upon which liability is dependent on some uncertain future event which may or may not occur. It is the element of dependency upon an uncertainty which renders a claim contingent. Accord Lewis v. Knight (App. 1955), 75 Ohio Law Abs. 589, 144 N.E.2d 551. We find that the claim herein was a contingent claim. Although it is true that the underlying debt was a fixed sum, the satisfaction of the debt could be accomplished in several ways. For example, a return on Carter's investment in the amount of the letter of credit would presumably satisfy the underlying obligation. We cannot agree with plaintiff that, for purposes of R.C.2117.06, the focus must only be on the underlying debt. Rather, under the facts of this case the focus must be on the letter of credit. Here, First City would not draw on the letter of credit unless necessary. If Ranger was successful and the debt was satisfied, the letter of credit would not need to have been drawn upon. The uncertainty regarding when, and under what circumstances, the letter of credit might be drawn upon renders the letter a contingent claim. Therefore, it need not have been made within three months of plaintiff's appointment as executrix. Plaintiff's single assignment of error is overruled, and the judgment of the court of common pleas is affirmed. Judgment affirmed. REILLY and CARNEY, JJ., concur. CARNEY, J., retired, of the *Page 85 Cuyahoga County Court of Common Pleas, was assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.

2016-07-06 06:35:57.890244+00

Cacioppo

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 665 This appeal questions whether summary judgment was properly granted in this employer/employee dispute. Appellant, Robert Manofsky, maintains that triable questions of fact exist on all the essential elements of his claims of age discrimination, sex discrimination, and wrongful discharge. He further protests that summary judgment was granted before discovery could be adequately conducted. We disagree and affirm the trial court's judgment in favor of appellee, Goodyear Tire Rubber Company ("Goodyear"). Although the parties disagree on almost every aspect of this case, a few uncontested facts may be discerned. Except for a two-year period when he operated his own Goodyear franchise, Manofsky was employed by Goodyear from 1965 to 1987. In late 1986, after the failed takeover attempt by Sir James Goldsmith, Goodyear adopted an early retirement incentive program ("ERIP") which allowed older employees to retire early and collect increased benefits. For reasons the parties hotly dispute, Manofsky passed on this offer which terminated on December 19, 1986. Within weeks, Goodyear determined that more personnel reductions would be required. Manofsky was subsequently laid off in January 1987. He was never considered for reinstatement. *Page 666 On July 16, 1987, Manofsky filed a complaint against Goodyear alleging age discrimination, sex discrimination, and wrongful discharge. For two years the parties battled over the proper forum, consolidation, amendments to the complaint, and discovery. Goodyear then moved for summary judgment on all counts. After an oral hearing and the filing of a number of briefs, the trial court granted Goodyear's Civ.R. 56 motion in full. Manofsky now appeals this decision. Assignment of Error I "The trial court erred in granting summary judgment on behalf of Goodyear since there were genuine issues of material fact." The standard of review in this appeal is well established. Pursuant to Civ.R. 56(C), summary judgment is proper if the trial court determines 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 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, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; see, also, Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1,2, 546 N.E.2d 975, 976. Once summary proceedings have been properly initiated, the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. Civ.R. 56(E); see, also, Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552-2553,91 L.Ed.2d 265, 273-274. The dispute must be "material" in that the facts involved have the potential to affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242,248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the nonmoving party. Id.477 U.S. at 248-252, 106 S.Ct. at 2510-2512, 91 L.Ed. at 211-214. Manofsky's complaint against Goodyear alleges three independent causes of action. This opinion will be subdivided accordingly. I. Age discrimination Manofsky's age discrimination claim is founded upon R.C.4112.02(N). Adopting the analytical framework established inMcDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802,93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677, the *Page 667 Ohio Supreme Court held in Barker v. Scovill, Inc. (1983) 6 Ohio St.3d 146, 6 OBR 202, 451 N.E.2d 807, paragraph one of the syllabus: "In order to establish a prima facie case of age discrimination, violative of R.C. 4101.17, in an employment discharge action, plaintiff-employee must demonstrate (1) that he was a member of the statutorily-protected class, (2) that he was discharged, (3) that he was qualified for the position, and (4) that he was replaced by, or that his discharge permitted the retention of, a person not belonging to the protected class. Defendant-employer may then overcome the presumption inherent in the prima facie case by propounding a legitimate, nondiscriminatory reason for plaintiff's discharge. Finally, plaintiff must be allowed to show that the rationale set forth by defendant was only a pretext for unlawful discrimination." This approach is similarly applicable to actions based upon R.C. 4112.02. Wang v. Goodyear Tire Rubber Co. (1990), 68 Ohio App.3d 13, 587 N.E.2d 387; In re Brantley (1987), 34 Ohio App.3d 320, 518 N.E.2d 602. The employer's burden regarding the legitimate nondiscriminating rationale is one of production only. Once an explanation "legally sufficient to justify judgment" for the employer is presented, the plaintiff then bears the burden of persuasion upon the ultimate question of wrongful discrimination. Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 254-256, 101 S.Ct. 1089, 1094-1095,67 L.Ed.2d 207, 215-217. Manofsky's assignment of error in this regard may be resolved by moving directly to the "nondiscriminatory rationale" element of his age discrimination claim. Goodyear's interrogatory answers state that payroll cost reductions were necessary to cope with the multibillion-dollar debt incurred in the wake of the Sir James Goldsmith takeover attempt in October and November 1986. The document states further that two layoffs were required in Manofsky's department and he was selected based solely upon poor performance reports. These answers were signed by Alice Chaloner who is the manager of Human Resource Division at Goodyear. Although Manofsky complains that Chaloner is not competent to testify on these matters — apparently believing that his interrogatories deserved the attention of more prominent personnel — Civ.R. 33(A) merely demands that she be a "proper employee" for this task. Manofsky's reference to Civ.R. 56(E)'s "admissibility and competency requirements" is severely misleading as that provision only concerns affidavits. Such documents are but one form of evidence a trial court may consider in a summary judgment proceeding. Civ.R. 56(C). The interrogatory answers involved represent the sworn statement *Page 668 of Goodyear on matters which the corporate entity has personal knowledge and are therefore appropriate. Accordingly, this evidence establishes a nondiscriminatory rationale for laying off Manofsky which would be legally sufficient to justify a judgment for Goodyear. Burdine, supra. The burden of persuasion consequently rests squarely upon the employee to establish his claim of wrongful discrimination. SeeRidenour v. Lawson Co. (C.A. 6, 1986), 791 F.2d 52, 56. After a thorough review of the many documents submitted by the parties, this court finds that Manofsky falls short in this respect. The former employee has presented no evidence suggesting that the economic justification based upon the Goldsmith takeover attempt was a mere "pretext for discrimination." Loeb v. Textron, Inc. (C.A. 1, 1979),600 F.2d 1003, 1012; Wilkins v. Eaton Corp. (C.A. 6, 1986), 790 F.2d 515,521. Manofsky's repeated claims that he was a valued employee who was often commended and paid well serve only to demonstrate that he was treated fairly by Goodyear up until layoffs were necessitated. Barker, supra, 6 Ohio St.3d at 149, 6 OBR at 204-205, 451 N.E.2d at 810-811. Manofsky asserts in his brief that he was denied an opportunity to conduct discovery upon the question of whether the attempted takeover truly necessitated layoffs at Goodyear. Civ.R. 56(F) permits a party to seek a continuance of summary judgment proceedings in order to conduct further discovery. Obviously, the evidence cannot be examined in a light most favorable to the nonmoving party if full access to necessary materials and witnesses is denied. Tucker v. Webb Corp. (1983),4 Ohio St.3d 121, 123, 4 OBR 367, 369, 447 N.E.2d 100, 102. The trial court nevertheless enjoys considerable discretion in the regulation of discovery proceedings. State, ex rel. Daggett, v.Gessaman (1973), 34 Ohio St.2d 55, 63 O.O.2d 88, 295 N.E.2d 659, paragraph one of the syllabus; see, also, 36 Ohio Jurisprudence 3d (1982) 47, Discovery and Depositions, Section 32. Manofsky has not set forth a compelling basis demonstrating that this discretion was abused. See, generally, Cedar BayConstr., Inc. v. Fremont (1990), 50 Ohio St.3d 19,552 N.E.2d 202; Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1251. As drafted, the two pertinent demands were extremely broad and not particularly pertinent. Contrary to his assumptions, Manofsky does not have the unfettered right to "test" the accuracy of Goodyear's sworn statements through discovery. More to the point, the trial court was not under any obligation to permit Manofsky to conduct a fishing expedition for incriminating documents. *Page 669 This court has previously held in a similar case that the employee's burden in demonstrating a discriminatory pretext is somewhat heavier when a work force reduction is required by economic necessity. Wang, supra, 68 Ohio App.3d at 16,587 N.E.2d at 389, citing LaGrant v. Gulf Western Mfg. Co., Inc. (C.A. 6, 1984), 748 F.2d 1087, 1090-1091. As a general rule, the judiciary will not second guess business judgments by an employer making personnel decisions. Brownlow v. Edgecomb Metals Co. (C.A. 6, 1989), 867 F.2d 960, 964; Wilkins, supra, at 521. Since Manofsky has not established a genuine dispute over Goodyear's nondiscriminatory rationale, summary judgment in this regard was appropriate. II. Sex discrimination Manofsky also complains that he was the victim of unlawful gender discrimination while employed at Goodyear. His claim is problematic on a number of grounds. While a cause of action is created for those aggrieved by age discrimination in R.C. 4112.02(N), a claim of sex discrimination must be based upon the general provision of R.C. 4112.99. Effective September 28, 1987, that section transformed the criminal penalties of R.C. Chapter 4112 into a civil remedy.Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131,134, 543 N.E.2d 1212, 1215; Hoops v. United Tel. Co. ofOhio (1990), 50 Ohio St.3d 97, 101-102, 553 N.E.2d 252, 256-257. The alleged discriminatory conduct which Manofsky sets forth is said to have occurred in late 1985 and early 1986. His original complaint was filed on July 16, 1987. Because R.C.4112.99 was not in effect at that time and statutes are presumed to be prospective in operation, R.C. 1.48, a question exists as to whether Manofsky can assert a civil claim of sex discrimination at all. Nevertheless, we need not resolve this issue at this time as these allegations were properly rejected by summary judgment on the merits. Manofsky maintains in this deposition that he was unjustly refused various job opportunities which Goodyear gave instead to women. The use of such conclusory assertions, however, is not sufficient, without more, to establish a prima facie case of discrimination. Locke v. Commercial Union Ins. Co. (C.A. 6, 1982), 676 F.2d 205, 206; Simpson v. Midland-Ross Corp. (C.A. 6, 1987), 823 F.2d 937, 941, fn. 5. Even if it were, Manofsky has not presented any credible evidence refuting Goodyear's claim that the women were qualified for the positions they received. Summary judgment on the claim of sex discrimination was therefore appropriate as reasonable minds could not conclude that Manofsky was denied job opportunities simply because he was a man. *Page 670 III. Wrongful discharge Manofsky was, at all relevant times, an at-will employee of Goodyear. Generally, such contracts may be terminated by either side for any reason. Phung v. Waste Management, Inc. (1986),23 Ohio St.3d 100, 102, 23 OBR 260, 261, 491 N.E.2d 1114, 1116. Manofsky insists, however, that various oral and written assurances by Goodyear satisfied the "promissory estoppel" and "implied contract" exceptions to this rule permitting him to recover damages. We do not agree. The two briefs prepared on behalf of Manofsky by counsel fail to differentiate between these two theories which are actually quite distinct. See, e.g., Spangler v. Go-Jo Industries, Inc. (Mar. 22, 1989), Summit App. No. 13853, unreported, 1989 WL 25692. This court will nevertheless attempt to separate the relevant passages which are scattered over the fifty-eight pages of arguments. A. Promissory Estoppel In Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150, paragraph three of the syllabus, the court held that: "The doctrine of promissory estoppel is applicable and binding to oral at-will employment agreements. The test in such cases is whether the employer should have reasonably expected its representation to be relied upon by its employee and, if so, whether the expected action or forbearance actually resulted and was detrimental to the employee." As an initial matter, the promises alleged must be "clear and unambiguous" in their terms. Cohen Co. v. Messina (1985),24 Ohio App.3d 22, 26, 24 OBR 44, 48, 492 N.E.2d 867, 871. Manofsky does not suggest that anyone guaranteed him a job at Goodyear for a specific length of time. He complains, instead, that certain remarks by fellow employees and publications of the company induced him to forgo the early retirement plan to his detriment. The oral assurances he refers to, however, consist of vague remarks by individuals who were not his immediate supervisors and not responsible for making his employment evaluations. Moreover, the written statements to which he points claim only that Goodyear employees will not be subject to unlawful discrimination and will be transferred, rather than laid off, if possible. Such comments do not create a genuine dispute over whether clear and unambiguous promises were made upon which one could reasonably rely. See Spangler, supra, at 7. Summary judgment was therefore appropriate in this regard. *Page 671 B. Implied contract Mers, supra, also recognized that the culmination of various events may transform an employment at-will agreement into an implied contract for a definite term. Mers, supra, at paragraph two of the syllabus, states: "The facts and circumstances surrounding an oral employment-at-will agreement, including the character of the employment, custom, the course of dealing between the parties, company policy, or any other fact which may illuminate the question, can be considered by the trier of fact in order to determine the agreement's explicit and implicit terms concerning discharge." The court has warned, however, that a strong presumption exists against such inflexible arrangements. Henkle v.Educational Research Council (1976), 45 Ohio St.2d 249, 255-257, 74 O.O.2d 415, 418-420, 344 N.E.2d 118, 121-123; Mers, supra,19 Ohio St. 3d at 102, 19 OBR at 263, 483 N.E.2d at 153, fn. 1. Furthermore, employee manuals and handbooks are usually insufficient, by themselves, to create a contractual obligation upon an employer. White v. Wright Tool Co. (Sept. 23, 1987), Summit App. No. 12991, unreported, 1987 WL 17920. In the instant appeal, Manofsky bases his implied contract analysis upon the same evidence as his promissory estoppel claim. As was the case for the latter, such vague remarks do not allow reasonable minds to conclude that the parties had agreed to anything more than an employment-at-will contract. We also find significant the inconsistent positions set forth on appeal by Manofsky. By asserting claims for both unlawful discrimination and wrongful discharge, he is forced to argue that his employers were invidiously plotting to remove him for improper causes while simultaneously promising to employ him perpetually. While not mutually exclusive in theory, these two claims do create a tension which is difficult to reconcile. In this case, summary judgment was appropriate as Manofsky failed to demonstrate a genuine dispute over whether the parties created an implied employment contract terminable for good cause only. Assignment of Error II "The trial court erred by dismissing the third cause of action to the extent that such dismissal was based upon Goodyear's position that the claim was time barred and/or that Manofsky failed to exhaust his administrative remedies." The judgment entry which forms the basis of this appeal does not identify the specific rationale for the trial court's decision. Therefore, we have no reason to believe that summary judgment was granted on the sex discrimination *Page 672 claim because it was time barred or administrative prerequisites were ignored. Since we have already held that this cause of action was properly dismissed on the merits, the trial court may be affirmed on this ground alone. This assignment of error is therefore overruled. Assignment of Error III "The trial court erred in refusing to grant Manofsky's motion to compel discovery." This assignment of error was fully discussed previously in regard to the granting of summary judgment in favor of Goodyear. The trial court did not abuse its discretion in denying Manofsky's motion to compel discovery. This assignment of error is therefore overruled. Conclusion For the reasons stated, the trial court is affirmed in all respects. Judgment affirmed. REECE, P.J., and BAIRD, J., concur.

2016-07-06 06:35:57.925571+00

Guernsey

This is an appeal on questions of law and fact from a judgment of the Probate Court of Hancock county, overruling exceptions of Mary Alice Shafer to the inventory of the estate of Alvin Ross Shafer, deceased, filed by Aubrey R. Moul, administrator with the will annexed, and adjudging that Trudie L. Shafer is entitled to the exempt property set off to her in schedule A-1 and to the year's allowance set off to her in schedule F in the inventory and appraisement. In her exceptions to the inventory, Mary Alice Shafer, who is the sole legatee and devisee under the last will and testament of Alvin Ross Shafer, pleads the terms of a separation agreement made and entered into by and between the decedent Alvin Ross Shafer and Trudie L. Shafer, his wife and surviving spouse, under date of June 16, 1943, as barring Trudie L. Shafer from any rights in the property set off to her as exempt in schedule A-1 and to the year's allowance set off to her in schedule F, as the surviving spouse of Alvin Ross Shafer. To these exceptions, Trudie L. Shafer filed a reply in which she pleads that she is the only true and lawful surviving spouse of Alvin Ross Shafer, deceased, and that the separation agreement dated September 13, 1941, which the exceptor cites as a bar, is and was null and void and ineffective as against her for the following reasons: "That said separation agreement itself recites and shows that no actual consideration was paid to Trudie *Page 107 L. Shafer other than one-half of the money and property already legally due her independently of the agreement. There was absolutely no consideration to support the release provisions of the agreement, quoted in full by the exceptor. That said agreement was a fraud upon Trudie L. Shafer, as she received absolutely nothing for the alleged release provisions and was obtained by Alvin Ross Shafer taking his wife to his own counsel and without having any legal counsel of her own to explain the highly technical nature of the instrument itself. "That after signing the instrument, Trudie L. Shafer and Alvin Ross Shafer became reconciled and lived together and specifically agreed between themselves that the separation agreement be abrogated and have no legal effect whatsoever." The prayer in this reply is that the court dismiss the exceptions filed to the allowance set forth in the inventory; for an order setting aside the alleged separation agreement; and for such other and further relief as may be proper. To this reply, the exceptor, Mary Alice Shafer, filed a pleading which she designated "answer and reply of Mary Alice Shafer" and which amounts to a general denial of the allegations thereof. Neither the exceptions filed by Mary Alice Shafer nor the pleading designated "answer and reply of Mary Alice Shafer" contains any averments which show the contract of separation to have been fair, reasonable and just to Trudie L. Shafer under the then existing circumstances. Under the provisions of Section 6, Article IV of the Constitution of Ohio the only appellate jurisdiction conferred on the Court of Appeals is in the trial of chancery cases, that is, a retrial of the facts in such cases. As the jurisdiction of the Court of Appeals is prescribed *Page 108 by the Constitution it cannot be enlarged or diminished by statute. The question therefore arises as to whether this case is a chancery case, within the purview of such constitutional provision, and retriable upon the facts. By the provisions of Section 8, Article IV of the Constitution of Ohio, jurisdiction in probate and testamentary matters and in the settlement of accounts of executors and administrators is conferred upon the Probate Court. By virtue of the constitutional provisions conferring such jurisdiction, the Probate Court has plenary power fully to dispose of any of those matters properly before the court, and such power comprehends the power to adopt and apply such remedies, legal or equitable, as may be suitable for such purpose. Insofar as these matters are concerned, Section 10501-53, General Code, prescribing that the Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is otherwise limited or denied by statute, adds nothing to the jurisdiction of the court. However, the procedure of the court in the exercise of its jurisdiction may be prescribed by statute, and is so prescribed in matters of exceptions to accounts and inventories. The jurisdiction conferred on the Probate Court by the Constitution comprehends jurisdiction of all matters which were the subject of adjudication in the instant case, and although the attack on the validity of the separation agreement, made by Trudie L. Shafer in her reply to the exceptions of Mary Alice Shafer to the inventory, invoked a remedy which ordinarily may be invoked only in chancery cases, such remedy was incidental to the exercise by the Probate Court of the jurisdiction *Page 109 conferred on it by the Constitution, and did not change the character of the case from a probate and testamentary matter, and an accounting by an executor or administrator, into a chancery case. See In re Estate of Gurnea, 111 Ohio St. 715,146 N.E. 308; Squire, Supt. of Banks, v. Bates, 132 Ohio St. 161,5 N.E.2d 690. The court, therefore, sua sponte determines that the case is not a chancery case; that, therefore, it does not have jurisdiction of the appeal as an appeal upon questions of law and fact; and that the appeal stands as an appeal upon questions of law only and will be so considered, a bill of exceptions, assignments of error and briefs of the parties having been heretofore filed herein perfecting the appeal as an appeal upon questions of law. As disclosed by the bill of exceptions, the following facts are in evidence in this case: Trudie L. Shafer was married to Alvin Ross Shafer, the decedent, on September 10, 1940, following his divorce on such date from Mary Alice Shafer. After her marriage she expended $2,976.46 in improvements to the real estate occupied by herself and husband, the title to which was in the name of Alvin Ross Shafer. Under date of October 26, 1940, Alvin Ross Shafer executed and delivered to her a deed conveying to her an undivided one-half interest in such premises. The premises mentioned are the premises referred to in the separation agreement. Under date of September 13, 1941, Trudie L. Shafer and Alvin Ross Shafer entered into a separation agreement in writing, which is in the words and figures following: "These articles of separation, made and concluded *Page 110 at Findlay, Ohio, this 15th day of September, 1941, by and between A.R. Shafer and Trudie L. Shafer, husband and wife, witnesseth: "That whereas, the parties have agreed upon an immediate separation, and "Whereas, the said A.R. Shafer has this day paid to the said Trudie L. Shafer the sum of nineteen hundred and seventy-five dollars ($1,975), the receipt of which is hereby acknowledged, said sum being the value of the interest of the said Trudie L. Shafer in the real estate formerly occupied by the parties hereto, and on this day sold to T.B. Clymer and Winifred Clymer, and for the value of the interest which the said Trudie L. Shafer had in one (1) farm tractor, and "Whereas, the said Trudie L. Shafer has assigned, conveyed and transferred to said A.R. Shafer the following personal property: "1. All of the household furniture which the said A.R. Shafer had in the residence lately occupied by said parties before the said A.R. Shafer and Trudie L. Shafer were married. "2. All of the farm machinery, implements and farm equipment now owned by the said A.R. Shafer and located on the real estate formerly occupied by said parties. "3. All growing corn and ear corn on the premises formerly occupied by the parties, being approximately three (3) acres. "4. 1 1938 Ford sedan automobile. "And whereas, in consideration of the premises, the said A.R. Shafer does hereby assign, convey and transfer to said Trudie L. Shafer any and all interest which he may have in all of the household furniture, goods and effects in the residence lately occupied by said parties, except that part which he reserved to himself hereinabove, and "Whereas, the said parties have agreed, and hereby *Page 111 do agree, to sell all of the hay, oats, wheat, livestock and chickens which are on the premises formerly occupied by the parties hereto and divide the proceeds received from the sale thereof equally between them. "Now therefore, in consideration of the premises, each party hereto does hereby release and discharge the other from all obligations of support, and from all other claims, rights and duties arising or growing out of said marital relation; and said parties mutually agree that each party hereto may freely sell or otherwise dispose of his or her own property, by gift, deed, or last will and testament, and each party is by these presents hereby barred from any and all rights or claims by way of dower, inheritance, descent, distribution, allowance for twelve (12) months' support, right to remain in the mansion house, and all rights or claims as widow, widower, heir, distributee, survivor, or next of kin, and all other rights or claims whatsoever, in or to the estate of the other, whether real or personal, and whether now owned or hereafter to be acquired, which may, in any manner, arise or accrue by virtue of said marriage. "And each party hereto, for the considerations aforesaid, does hereby release and relinquish to the other, and to the heirs, executors, administrators, devisees, legatees and assigns of the other, all claims or rights of dower, inheritance and a distributive share, or as widow, widower, heir, survivor, distributee or next of kin, in and to all of the estate of the other, whether now owned or hereafter acquired, and all claim or right to an allowance for twelve (12) months' support, or to reside in the mansion house, and all other rights or claims whatsoever, which may, in any manner, arise or accrue by virtue of said marriage. "And each party further agrees that the other party shall have full liberty to dispose of all his or her property, real and personal, whether now owned or *Page 112 hereafter acquired, during life, or by last will and testament, and that, upon the death of such party, all of his or her property, real and personal, which shall not have been disposed of, during life or by last will and testament, shall descend to, vest in and be distributed to, such person or persons as would be entitled to the same by the statutes of descent and distribution of the state of Ohio then in effect, had the surviving party died during the life of the other party. "And each party hereby waives any right which he or she may have, to administer the estate of the other party, upon the death of such other party. "Each party hereto further agrees, upon request of the other, to execute and acknowledge any and all deeds or other instruments of release or conveyance to enable such other to sell, convey, mortgage, or otherwise dispose of or encumber his or her own real property, free from any apparent right of dower therein. "In witness whereof the parties have hereunto set their hands the day and year first above written. "Signed and acknowledged A.R. Shafer in presence of: "Marcus C. Downing "Edythe W. Morgan Trudie L. Shafer." The terms of the separation agreement were fully executed by the parties thereto, and at the time of the execution thereof the parties separated and lived apart. On a number of occasions subsequent thereto, and prior to February 28, 1942, Trudie L. Shafer came to and was seen at the residence which Alvin Ross Shafer maintained at Rawson, Hancock county, and Alvin Ross Shafer, at such residence, stated to Mrs. Carnahan, his sister, that he was "so glad that him and Trudie could live together," and it was stated that *Page 113 Trudie told Mrs. Carnahan she had been there several weeks. Trudie L. Shafer did not testify as to whether she and Alvin Ross Shafer had lived together at any time subsequent to the execution of the separation agreement, and there is no evidence tending to prove that she and Alvin Ross Shafer specifically agreed that the separation agreement should be abrogated, as alleged in Trudie L. Shafer's reply to the exceptions. There is no evidence showing what property, if any, either of the parties had at the time of the execution of the separation agreement, which is not covered by the agreement, or as to the state of health of either of the parties or their respective ages at the time of the execution thereof, or as to other then existing circumstances of the parties, except as hereinbefore mentioned. Mary Alice Shafer, the exceptor, appellant herein, is the divorced wife of Alvin Ross Shafer and was, at the time of his death, living in his home and keeping house for him. As shown by the transcript of docket and journal entries of the Probate Court, Alvin Ross Shafer died on May 22, 1943. The errors which the appellant assigns may be summed up as follows: 1. Error in overruling the motion of exceptor for a new trial. 2. Error in that the finding and judgment are against the manifest weight of the evidence. 3. Error in that the finding and judgment are contrary to law. 4. Error in the admission of evidence, offered by Trudie L. Shafer under her reply to the exceptions, to which the appellant objected. 5. Other errors apparent upon the face of the record. *Page 114 The claimed errors will be considered in the order mentioned. 1. An inspection of the record discloses that no motion for new trial was filed. No motion having been filed, error cannot be predicated upon the overruling of a motion for new trial, although the judgment entry recites that a motion for a new trial was overruled. 2. No motion for new trial having been filed, the weight of the evidence may not be reviewed by this court. 2 Ohio Jurisprudence, 264, Section 228. 3. Under this assignment of error appellant makes two general contentions. First. That, although the validity of the separation agreement was put in issue by the reply of Trudie L. Shafer to the exceptions, within six months from the appointment of the administrator of the estate of decedent, such attack was unauthorized in law and did not, within the purview of Section 10512-3, General Code, constitute an attack on the validity of such agreement, within six months after the death of the decedent, the Probate Court was without power to set the agreement aside, and the agreement is, under the provisions of such section, deemed valid. Second. That there is no evidence that the provisions of the separation agreement were unfair, or that the parties thereto had by their conduct rescinded or abrogated the same. The appellee contends that the filing of a motion for new trial in the trial court is a condition precedent to the signing and allowance of a bill of exceptions; that, as no motion for new trial was filed in this case, the bill of exceptions should be stricken from the files; and that the errors demonstrable thereby, including this assignment of error, may not be reviewed by this court. In support of this contention she relies on the case of EdwardWren Co. v. Retail Clerks Union Local No. 190, 28 Ohio Law Abs., 95, a decision of the Court of *Page 115 Appeals of the Second District which announces the rule that the filing of a motion for a new trial is a condition precedent to the allowance of a bill of exceptions. We have carefully checked the reported cases in Ohio, including the cases of State, ex rel. Porter, a Taxpayer, v. Clark et al.,Bd. of Commrs., 112 Ohio St. 133, 146 N.E. 815, and Chapman v.Manix, 17 Ohio Law Abs., 16, cited in the opinion in the Wrencase in support of this rule, and find no cases supporting the announced rule, except the cases of Schwenkel v. Schwenkel, 23 Ohio Law Abs., 321, and State, ex rel. Warner, v. Smith, 23 Ohio Law Abs., 313, which were decided by the same Court of Appeals. It has been uniformly held that the filing of a motion for new trial upon the ground that the finding of a court or jury is against the manifest weight of the evidence and the overruling of such motion by the trial court are conditions precedent to a review of the weight of the evidence. It has also been held that the filing of a motion for new trial upon the grounds of misconduct of the prevailing party, accident or surprise which ordinary prudence could not have guarded against or newly discovered evidence, and the overruling of such motion by the trial court are conditions precedent to a review of assignments of error based on such grounds. Weaver v. Columbus,Shawnee Hocking Valley Ry. Co., 55 Ohio St. 491, 45 N.E. 717; 2 Ohio Jurisprudence, 263, Section 227. But we find no reported cases, other than the cases decided by the Court of Appeals of the Second District, above-mentioned, holding that the filing and overruling of motions for new trial are conditions precedent to the review of any other ground of error. An error of law for want of proof arises where there is no evidence to establish one or more facts the existence *Page 116 of which is essential to recovery. Turner v. Turner, 17 Ohio St. 449,452. Where the trial court is not called upon to weigh the evidence but to apply the law when the ultimate facts are not in dispute, the case assumes a legal phase and a motion for new trial need not be filed in order to review claimed error in the application of the law to the facts. Jacob Laub Baking Co. v. Middleton,118 Ohio St. 106, 120, 160 N.E. 629; Inglish v. IndustrialCommission, 125 Ohio St. 494, 182 N.E. 31, 83 A.L.R., 210. In the cases of Travelers' Indemnity Co. of Hartford, Conn. v.M. Werk Co., 33 Ohio App. 358, 169 N.E. 584, and Fairley v.Wilmington College, 19 Ohio Law Abs., 380, it was held that although the Court of Appeals cannot pass on the weight of the evidence in the absence of a motion for new trial, such motion is not necessary to a determination of the question whether there was any evidence to support plaintiff's claim. From these holdings we conclude that the rule announced in theWren case, supra, is erroneous; that the filing of a motion for a new trial and the overruling of same are not conditions precedent to the allowance of a bill of exceptions; that, consequently, the bill of exceptions should not be stricken; and that this court may review this assignment of error and the errors complained of on this appeal notwithstanding the fact that no motion for a new trial was filed. Section 10512-3, General Code, prescribes that any antenuptial or separation agreement to which the decedent was a party shall be deemed valid unless action to set it aside is begun within six months after the appointment of the executor or administrator of the estate of such decedent, or unless within such period of time the validity of such agreement is otherwise attacked. As hereinbefore mentioned, the Probate Court has *Page 117 constitutional jurisdiction of probate and testamentary matters, and the accounts of executors and administrators. Such constitutional jurisdiction necessarily comprehends jurisdiction of inventories and exceptions thereto, as inventories are essential to the accounting of executors and administrators. Incident to this constitutional jurisdiction in the premises, the Probate Court has plenary power to dispose of any matters properly before it, including the power to adopt and apply remedies which are legal or equitable in their nature. The reply of Trudie L. Shafer to the exceptions constituted a direct attack on the validity of the separation agreement which the court, in the exercise of its constitutional jurisdiction, had power to determine. This attack was made within six months from the date of the appointment of the administrator so it was made within the time prescribed by Section 10512-3, General Code, and was made in such a manner that it was necessary for the court, in order to dispose of a matter properly before it, to determine whether the agreement was valid. The case of Juhasz v. Juhasz, 134 Ohio St. 257,16 N.E.2d 328, 117 A.L.R., 993, is not in point as in that case no attack on the validity of the agreement (antenuptial) was made in the Probate Court in a form in which the validity thereof could be adjudicated by the court. For the reasons mentioned, the first contention of appellant, under this assignment of error, is without merit. As above mentioned, the second contention of appellant under this assignment of error is that there is no evidence that the provisions of the separation agreement were unfair, or that the parties thereto had by their conduct rescinded or abrogated the same. As will be noted from the statement of facts, the separation *Page 118 agreement provided for an immediate separation of the parties and a division of property between them, and was fully executed. Agreements of this character which have been executed are not subject to rescission, revocation or abrogation by reconciliation of the parties and the resumption of marital relations alone, but only by clear agreement between the parties that they should be so revoked. Lucas v. Lucas, 26 Ohio Law Abs., 664; Leedy v.Malcolm, 8 Ohio Law Abs., 640. In the instant case, although there is evidence tending to prove reconciliation and resumption of marital relations, there is no evidence tending to prove any agreement between the parties that the separation agreement should be rescinded, revoked or abrogated. The evidence therefore is insufficient in law to sustain the finding of the trial court that the agreement was abrogated. Whether the separation agreement was fair presents another question. The validity of separation agreements is determined in acccordance with the general rules applicable to transactions and agreements between parties occupying confidential relations with each other. Section 7999, General Code; Hoagland v. Hoagland,113 Ohio St. 228, 148 N.E. 585; Garver, Exr., v. Miller, 16 Ohio St. 527. In the last-cited case it was held that a parol post-nuptial agreement between husband and wife, made in view of a voluntary separation, and fully executed on the part of the husband, whereby, for a consideration which, in the light of all the circumstances of the parties at the time the contract is made, is fair, reasonable and just, the wife relinquishes all claim to a distributive share of the husband's personal estate, in case she survive him, will be upheld and enforced in equity; but that it is an essential element of the foregoing *Page 119 proposition that the terms of the contract shall be fair, reasonable and just to the wife, in view of all the circumstances of the parties at the time when it was made; and that such contract can be made available, in pleading, as a full defense to an action by the wife for a distributive share of her deceased husband's estate, only when accompanied by such averments as show it to have been fair, reasonable and just to her. Otherwise expressed, if the contract be relied on in pleading, either as a cause of action or as a matter in defense, the pleading must contain averments which show the contract to have been fair, reasonable and just to the wife under the circumstances existing at the time of making. If such becomes a question of fact, the proof must lead the mind of the chancellor satisfactorily to the same conclusion. It is not sufficient, either as a matter of pleading or of proof, to set up the naked contract and its execution by the husband. In addition to this, facts must be averred or proved, or both, as the exigencies of the case may require, showing that the terms of the contract in favor of the wife were fair, reasonable and equitable under the circumstances of the parties at the time it was made. See, also, 2 Pomeroy's Equity Jurisprudence (4 Ed.), 2038, Section 956. Applying the foregoing rule to the instant case, it was not essential that the exceptor, in her exceptions, plead facts showing the contract to have been fair, reasonable and just to the wife, Trudie L. Shafer, under the then existing circumstances, as the contract, not having been attacked as prescribed by Section 10512-3, General Code, was deemed valid, but when the contract was attacked by Trudie L. Shafer, the widow of the decedent, in her reply to such exceptions, it became incumbent upon the exceptor to plead and prove the facts mentioned. The exceptor failed to plead such facts and, as shown *Page 120 by the statement of facts, there are no facts in evidence from which a determination could be made that the contract was fair, reasonable and just to the wife, Trudie L. Shafer, under the circumstances existing at the time of its execution. In this situation it was the duty of the trial court, by reason of the failure of pleading and proof on the part of the exceptor of these essential facts, to hold that the contract was invalid, and the finding of the court in that respect is not erroneous. 4. The appellant, in her briefs herein, fails to specify any errors in the admission of evidence so that this assignment will not be considered by the court. 5. The appellant also fails to specify in her briefs any errors under this assignment so the court is not required to and will not consider this assignment. For the reasons mentioned, we find no error in any of the particulars assigned and argued in appellant's brief, and the judgment of the Probate Court is affirmed at costs of appellant, and the cause remanded for execution. Judgment affirmed. JACKSON and MIDDLETON, JJ., concur. *Page 121

2016-07-06 06:35:58.558741+00

Reilly

This is an appeal from a judgment of the Court of Common Pleas, Franklin County, Ohio. The record indicates that on November 1, 1973, William Peyton, filed an application for unemployment benefits. The Ohio Bureau of Employment Services, on November 16, 1973, allowed the claim, finding he was not excluded by R. C. 4141.29(D) (2)(a), but quit for just cause. Sun T.V. Appliances sought a reconsideration and obtained a reversal of the initial allowance. Peyton timely appealed to the board of review. There was a hearing before a referee, and the decision, upon reconsideration, was affirmed. Ultimately, the board of review affirmed the referee's decision. The board's decision was appealed to the Court of Common Pleas and affirmed; whereupon, this appeal was perfected, and the following advanced as the assignment of error: "The Trial Court erred in affirming the decision of the Board of Review, State of Ohio, Bureau of Employment Services, which decision was contrary to law, unreasonable, and against the manifest weight of the evidence." Mr. Peyton was employed by Rockwell International Corporation as a factory employee for approximately twenty-one years. He lost his job because of a general layoff, due to the cancellation of government contracts. At the time of his termination, he was earning approximately two hundred dollars per week. Then, he found employment with Sun T. V. as a salesman, and was paid by a commission for individual sales. The plain fact was that he was unable to earn enough for necessary family expenses. He was not only facing financial hardship, but probable bankruptcy. His entire work experience, aside from some secondary real estate background, was basically different from sales and promotional merchandising. Hence, Mr. Peyton, in net effect, left his employment to find work for which he was reasonably adapted. He applied for unemployment benefits while seeking a job. Specifically, R. C. 4141.29 (D)(2)(a) reads, in pertinent part: "(D) Notwithstanding division (A) of this section, no individual may * * * be paid benefits under the following conditions: * * * *Page 12 "(2) For the duration of his unemployment if the administrator finds that: "(a) He quit his work without just cause or has been discharged for just cause in connection with his work. * * *" The claimant asserts that he quit his work with just cause. This is the issue in the case. There is, of course, not a slide-rule definition of just cause. Essentially, each case must be considered upon its particular merits. Traditionally, just cause, in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act. Moreover, there is minimal case law directly determining this issue. Therefore, we are considering this case upon its individual merits. It is noteworthy that Mr. Peyton's consistent employment record scarcely reflects any malingering or abuse of the system. When he lost his job, after twenty-one years of steady employment, he immediately sought and found other work. The true result was a postponement of the time of eligibility for unemployment benefits, for, undoubtedly, he could have had benefits from his North American Rockwell employment. It is noteworthy that he did not simply apply for unemployment compensation. Instead, he went out and found a job. The ultimate difficulty was that he was not suited for that kind of work and could not make a living doing it. The intent of the law is not to penalize a person for not finding work. Therefore, we find, as a matter of law, appellant had just cause for leaving his job. Accordingly, the assignment of error is well taken and sustained. The judgment of the trial court is reversed and remanded for further proceedings consistent with this decision. Judgment reversed. TROOP, P. J., and WHITESIDE, J., concur. *Page 13

2016-07-06 06:35:58.927555+00

Shannon

This comes before us on appeal on questions of law from the Court of Common Pleas of Hamilton County wherein a summary judgment for the defendant upon its cross-petition had been entered. The defendant has filed a cross-appeal. Originally, plaintiff had filed its petition in the Cincinnati Municipal Court seeking to recover from defendant upon an account stated for insurance premiums. An answer *Page 162 and cross-petition was filed by defendant and, because the amount prayed for in the cross-petition exceeded the monetary jurisdiction of the court, the cause was certified to the Court of Common Pleas. Defendant stipulated its liability on the account, but alleged that plaintiff was liable on a certain promissory note. The gist of such contention was that plaintiff's predecessor had negotiated a loan and signed a note therefor, that defendant's predecessor was a co-signer of that note and upon default by plaintiff's predecessor had paid the same. It appears that shortly before September 23, 1960, the date upon which the note was signed, one Robert J. Leonard told Harry Fuller II, then president of Northern Kentucky Asphalt Co., that the insurance agency in which he, Leonard, was a general partner, needed $5,000. Fuller then accompanied Leonard to the bank which made the loan. It is undisputed that the proceeds of the loan transaction found their way into the commercial account of the insurance agency. A pretrial hearing was held and resulted, among other things, in certain orders. Notable among such are that "if the note was the partenership obligation, stipulations will be filed and a judgment entered upon an agreed statement of facts"; that, "both attorneys will make a search * * * to find the original note * * * and examine the bank records * * * to establish who the primary obligor on the note actually was"; and that, "if the investigation cannot establish the correct identity * * * a trial date will be established and the fact issue determined." The note was never found, and it is conceded that the court below considered the same to have been lost or destroyed. Certain affidavits were filed, being those of Fuller, Leonard and one Allgeyer, the loan manager for the bank at the time of the transaction. Substantially, these affidavits are that the loan was "for partnership business" with Leonard adding, "the Agency unequivocably ratified the transaction and accepted the burden thereof as a partnership obligation." However, the deposition of one Rolf, *Page 163 an officer of the bank, was filed and such discloses that the draft issued by the bank as the result of the loan transaction was payable solely to Robert J. Leonard and that the bank's ledger card, which includes the name of the borrower, carries only the name of Robert J. Leonard. The court below found as a matter of law that the partnership of which Leonard was a member was liable on the note. Defendant's cross-appeal is based upon a claim that the court below erred in considering the documentary evidence submitted in connection with the Rolf deposition. It is clear to us that a genuine issue of fact exists as to the manner in which the note was executed. The trial court was required, perforce, to evaluate evidence before reaching its legal conclusion. Section 2311.041, Revised Code, provides, in part (paragraph B thereof): "* * * A summary judgment shall not be rendered unless it appears from the pleadings, depositions * * * affidavits * * * and written stipulations of fact, if any, previously filed in the action, 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; the party against whom the motion for summary judgment is made is entitled to have such pleadings, depositions * * * affidavits * * * and written stipulations of fact construed most strongly in his favor. * * *" Since it is apparent that rendition of summary judgment in the instant case was improper under the statute, such is reversed and the cause remanded to the Court of Common Pleas for further proceedings according to law. Such determination on our part renders moot the issue raised by defendant's cross-appeal, that is, even without the exhibits, the consideration of which is complained of, there is a genuine issue of fact apparent to us. Therefore, the cross-appeal is dismissed without further consideration of the merits thereof, which disposition is not to be interpreted to prejudice the raising of such issues upon trial. Judgment accordingly. LONG, P. J., and HILDEBRANT, J., concur. *Page 164

2016-07-06 06:35:58.150187+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 Dave Walter, Inc. has appealed from the decision of the Akron Municipal Court that adopted the magistrate's decision which found in favor of Plaintiff-Appellee Karrie Kalail. This Court reverses. I {¶ 2} On June 22, 2004, Plaintiff-Appellee Karrie Kalail filed a complaint in the Akron Municipal Court against Defendant-Appellant Dave Walter, Inc. alleging a deceptive sales practice in violation of the Consumer Sales Practices Act. The matter went before a magistrate and Appellant failed to appear. On March 21, 2005, the magistrate issued its decision finding in favor of Appellee. On April 4, 2005, Appellant filed objections to the magistrate's decision arguing that it never received notice of the magistrate's hearing and therefore the decision should be vacated; Appellee timely responded to Appellant's objections. The trial court adopted the magistrate's decision and found that the evidence showed that mail and telephone notice were executed on Appellant regarding the new hearing date. {¶ 3} Appellant has timely appealed the trial court's ruling, asserting one assignment of error. II Assignment of Error Number One "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADOPTING THE MAGISTRATE'S RULING IN FAVOR OF APPELLEE DESPITE [APPELLANT'S] OBJECTIONS THAT DAVE WALTER RECEIVED NO ACTUAL NOTICE OF THE HEARING ON APPELLEE'S COMPLAINT." {¶ 4} In its sole assignment of error, Appellant has argued that the trial court erred in adopting the magistrate's decision when Appellant did not receive notice of the hearing before the magistrate. Specifically, Appellant has argued that the evidence does not support the trial court's conclusion that no evidence was presented that Appellant did not receive notice. We agree. {¶ 5} A decision to modify, affirm, or reverse a magistrate's decision lies within the discretion of the trial court and should not be reversed on appeal absent an abuse of discretion.Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. An abuse of discretion suggests more than a mere error in judgment, but indicates that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Id. {¶ 6} Pursuant to Loc.R. 6: "The Akron Legal News is the official daily journal of the Municipal Courts of Summit County as authorized O.R.C. 2701.09. Publication in the Akron Legal News shall be deemed official and complete notification to all local counsel of any assignment of any case for any purpose, and it shall be the duty of counsel to ascertain such notice from The Akron Legal News. Non-local counsel and parties representing themselves shall be notified by mail. Notwithstanding provisions of any rule to the contrary, any mail notification provided shall be sufficient." In the instant matter, Appellant's counsel maintains its offices in Brecksville, Ohio, which is in Cuyahoga County. Accordingly, we find that Appellant's counsel was not local counsel and the trial court was required to notify said counsel by mail of the new hearing date. With that requirement in mind we turn to the evidence of record. {¶ 7} A review of the record reveals the following relevant documents: 1) the court docket; 2) a notice dated October 7, 2004; 3) a memo dated October 7, 2004; 4) a notice dated January 7, 2005; 5) a fax cover sheet; 6) a memo dated April 28, 2005; and 7) an affidavit from Appellant's counsel. We begin with the docket; the docket does not contain a notation of the hearing date of January 7, 2005. It does not cite the hearing as scheduled or having occurred on that date. We find this troubling because if one follows the argument that a lawyer is responsible for maintaining his case load and knowing when his hearings are set, then the lawyers in this case could not rely on the court docket for that information. We also note that this case's docket was not available online for review. {¶ 8} The second document of interest to this Court is the notice dated October 7, 2004. It lists the new hearing date as January 7, 2005, but does not list Appellant's counsel as receiving notice of the new date. The "NOTICES TO" section only lists the Appellant as a company, not Appellant's counsel as being sent notice of the hearing date. The trial court knew Appellant was represented by counsel, but from the notice form, the trial court did not send notice to said counsel. {¶ 9} The third document is a memo from the trial court's support staff that states that Appellant's counsel was called about the new date and a message was left. But the memo does not state who received the message or if it was left with an automated service that confirmed the staffer had called Appellant's counsel. {¶ 10} The fourth document was sent in response to Appellant's counsel's January 7, 2005 request for evidence that notice was sent regarding the new hearing date. The information counsel received was a notice sheet that differed from the prior notice sheet in the following ways: 1) the date the document was created is listed as January 7, 2005, which was the current date; 2) Appellant's counsel is listed in the upper left section along with her address; and 3) the "NOTICES TO" section lists Appellant's counsel as being sent notice of the new hearing date. It is clear that the notice form sent to Appellant's counsel on January 7, 2005 was not a copy of the original notice. {¶ 11} The fifth document this Court finds relevant is the fax cover sheet that accompanied the previous document. Typed onto the cover sheet was the following sentence: "Attorney Rhoades, a copy would not of gone to the client, only to your office." Such a statement is contrary to the other documents in the file; the original notice form was clearly not sent to counsel because it lists the client in the "NOTICES TO" section. {¶ 12} The sixth document is a memo from a trial court staff member to the file that states that notice was not issued in the Akron Legal News, but "notices were sent and that the defendant has been involved in multiple cases." We find this document relevant because by its own admission the trial court did not adhere to Loc.R. 6. The memo does not explain where notices were sent or who was sent notices. Moreover, we question why it was noted that the Appellant had multiple cases when the only relevant issue was whether Appellant's counsel received notice of the hearing in this case; whether or not he received notice on other cases is irrelevant. {¶ 13} The final document relevant to whether or not Appellant and/or its counsel received notice is Appellant's counsel's affidavit which avers that neither counsel nor Appellant received notice of the hearing. The affidavit was attached to Appellant's objections to the magistrate's decision. Appellant's counsel rebutted the evidence from the file and made a sworn statement that her office did not receive notice of the January 7, 2005 hearing; she also averred that her client did not receive notice. {¶ 14} After a thorough review of the record, we find that the trial court abused its discretion in adopting the magistrate's decision and overruling Appellant's objections. Our decision is based on the inconsistent documents in the trial court's record, the trial court's failure to comply with Loc.R. 6., and the trial court's failure to acknowledge the rebuttal evidence presented by Appellant's counsel. The journal entry adopting the magistrate's decision stated: "There is nothing in the file to indicate that the defendant did not receive the notice." While we make no judgment regarding whether or not Appellant did actually receive notice, we find that the file contained several documents indicating Appellant did not receive proper notice and the trial court must consider and address all the evidence in the file. Based on the foregoing, we find that the trial court did abuse its discretion in overruling Appellant's objections to the magistrate's decision. {¶ 15} Appellant's sole assignment of error has merit. III {¶ 16} Appellant's sole assignment of error is sustained. 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 Akron Municipal Court, 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. Slaby, P.J., Moore, J., concur.