author: FRANK D. CELEBREZZE, JR., J.:

text:
    Dianna E. WILLIAMS, Plaintiff-Appellant v. KIA OF BEDFORD, Defendant-Appellee
    No. 105616
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 25, 2018
    Dianna E. Williams, pro se, 6036 White Pine Drive, Bedford Heights, Ohio 44146, FOR APPELLANT.
    Steven D. Strang, Gallagher & Sharp, L.L.P., 35 North 4th Street, Suite 200, Columbus, Ohio 43215, Thomas J. Cabral, Colleen A. Mountcastle, Gallagher & Sharp, L.L.P., Bulkley Building, 6th Floor, 1501 Euclid Avenue, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEE.
    BEFORE: Celebrezze, J., S. Gallagher, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Plaintiff-appellant, Dianna Williams ("appellant"), brings this appeal challenging the Bedford Municipal Court's judgment on her claims for breach of contract, Ohio Consumer Sales Practices Act ("CSPA") and Ohio Administrative Code ("O.A.C.") violations, defamation, and fraud against defendant-appellee, Kia of Bedford ("KOB"). After a thorough review of the record and law, this court affirms the trial court's judgment, albeit for different reasons than those set forth in the trial court's January 30, 2017 judgment entry.

I. Factual and Procedural History

{¶ 2} In November and December 2014, appellant engaged in negotiations with KOB to trade in her 2012 Kia Sportage and lease a 2015 Sportage. At this time, appellant's husband also negotiated and executed two lease agreements with KOB. Various disputes arose during appellant's negotiations regarding the color of the 2015 Sportage, the installation and costs of side rails, the negative equity on the 2012 Sportage, the duration of the lease, and the monthly payments for the 2015 Sportage. The agreement ultimately fell through on December 18, 2014.

{¶ 3} Appellant returned to KOB the following day to speak with a manager about the various disputes that led to the deal falling through and the terms of the lease agreement. She spoke with various KOB employees, but the issues were not resolved. The disagreement between appellant and the KOB employees escalated, and the police were called to the dealership.

{¶ 4} The parties continued to attempt to reach an agreement on the terms of a lease from December 30, 2014 until April 2, 2015, but were unable to do so. On April 11, 2015, appellant entered into a lease agreement with Taylor Kia of Boardman.

{¶ 5} On April 29, 2015, appellant filed a small claims complaint against KOB. This complaint was dismissed without prejudice in July 2015.

{¶ 6} On January 8, 2016, appellant filed a complaint against KOB in the Bedford Municipal Court alleging breach of contract, CSPA and O.A.C. violations, defamation, and fraud. A bench trial commenced on December 13, 2016. A total of seven witnesses, including appellant, testified at trial.

{¶ 7} On January 30, 2017, the trial court returned its verdict. Regarding appellant's breach of contract claim, the trial court concluded that KOB breached the lease agreement by (1) demanding that appellant pay for the installation of side rails on the 2015 Sportage when it was not a term of the lease agreement, and (2) failing to advise appellant about the negative equity on her 2012 Sportage and having her sign the negative equity disclosure box in the lease agreement. However, the trial court concluded that appellant failed to prove any actual economic damages that resulted from the breach. Regarding the CSPA/O.A.C. claims, the trial court concluded that KOB violated (1) O.A.C. 109:4-3-03 by failing to advise appellant that Kia did not manufacture the 2015 Sportage EX in bright silver, and (2) O.A.C. 109:4-3-16 by failing to have appellant sign the negative equity disclosure box in the lease agreement. The trial court awarded appellant $200 in statutory damages for these violations. Finally, the trial court held that appellant failed to meet her burden of proof on her defamation and fraud claims.

{¶ 8} On March 1, 2017, appellant filed the instant appeal challenging the trial court's judgment. Appellant assigns eight errors for review:

I. The trial court erred in calculating actual damages owed to the Appellant.
II. The trial court erred in calculating the treble damages owed to the Appellant.
III. The trial court erred in the application of the whole weight of the evidence to determine that the Appellant was in a better position when she executed the subsequent contract with Kia of Boardman than with [KOB].
IV. The trial court erred in rendering to the Appellant only one statutory award for [KOB's] multiple violations of separate decrees under ORC 1345 et seq[.] and the O.A.C.
V. The trial court erred in determining that the defamatory statements made by [KOB] did not constitute Slander as a matter of law under ORC 2739.01.
VI. The trial court erred in determining that the defamatory statements made by [KOB] were not published to third parties.
VII. The trial court erred by the improper application of the Parol Evidence Rule to determine that the Appellant failed to meet her burden of proof as she failed to show that [KOB's] representations prior to the execution of the contract amounted to fraud.
VIII. The trial court erred in determining whether or not [KOB] acted with malicious intent as claimed in the Appellant's complaint and was argued by the Appellant at trial.

To the extent that appellant's assignments of error and the issues therein are interrelated, they will be addressed together.

{¶ 9} In their appellate brief, KOB raises three cross-assignments of error challenging the trial court's findings that KOB breached the lease agreement, violated the CSPA, and violated O.A.C. 109:4-3-03. KOB did not, however, file a notice of cross-appeal as required by App.R. 3(C)(1), which provides, "[a] person who intends to defend a judgment or order against an appeal taken by an appellant and who also seeks to change the judgment or order * * * shall file a notice of cross appeal within the time allowed by App.R. 4." Accordingly, we decline to address KOB's cross-assignments of error. See Ohio Valley Bus. Advisors, L.L.C. v. AER Invest. Corp. , 8th Dist. Cuyahoga No. 104771, 2017-Ohio-1283, 2017 WL 1283586, ¶ 25.

II. Law and Analysis

{¶ 10} As an initial matter, we note that appellant presents several arguments that relate to the lease agreements that her husband entered into with KOB. Specifically, appellant asserts that her husband made a down payment of $4,000 to pay off the negative equity on appellant's 2012 Sportage. Appellant alleges that KOB failed to apply her husband's $4,000 payment to the negative equity on her 2012 Sportage, incorporated the negative equity into her monthly payments for the 2015 Sportage lease without disclosing this to her, and failed to return the $4,000 "deposit" to her when Kia did not deliver a vehicle to her.

{¶ 11} Appellant's husband is not a party in this case. Appellant's husband entered into agreements with KOB to lease a 2015 Kia Sorento and a 2015 Kia Optima. These lease agreements were signed by appellant's husband, not appellant.

{¶ 12} The lease agreement for the 2015 Kia Sportage was signed by appellant, not her husband. Appellant's lease agreement makes no mention of her husband's lease agreements nor her husband's $4,000 payment. Likewise, the husband's lease agreements make no mention of appellant's lease for a 2015 Sportage, nor her 2012 Sportage trade-in vehicle.

{¶ 13} Therefore, appellant does not have standing to challenge or dispute any of the terms that pertain to her husband's lease agreements. These terms and issues are outside the scope of this appeal. Our review is limited to appellant's negotiations with KOB to lease a 2015 Sportage.

A. Breach of Contract

1. Actual Damages

{¶ 14} Appellant's first and third assignments of error pertain to the trial court's determination that appellant failed to prove actual damages resulting from KOB's breach of the lease agreement. In her first assignment of error, appellant appears to argue that the trial court's judgment that she failed to prove actual damages resulting from KOB's breach of the lease agreement is against the manifest weight of the evidence. In her third assignment of error, appellant argues, in part, that the trial court's determination that she was in a better position under the Taylor Kia of Boardman lease than under the KOB lease agreement is against the manifest weight of the evidence.

{¶ 15} After reviewing the record, we find that the trial court's judgment regarding the actual damages appellant suffered as a result of KOB's breach of the lease agreement is supported by competent, credible evidence. Under the KOB lease agreement, appellant was required to make 48 monthly payments of $449.88, totaling $21,594.24; the amount due at signing was $899.76, and appellant's total payment was $22,444.12. Under the Taylor Kia of Boardman lease, appellant was required to make 36 monthly payments of $394.14, totaling $14,189.04; the amount due at signing was $5,750, and appellant's total payment was $19.944.90.

{¶ 16} Appellant argues that she suffered $4,000 in actual damages as a result of KOB's breach of the lease agreement because in addition to her husband's payment of $4,000 to KOB, she had to pay $4,000 to Taylor Kia of Boardman for the negative equity on her 2012 Sportage. As noted above, appellant's husband's $4,000 payment applied to his lease agreements with KOB, not appellant's lease agreement. Therefore, appellant's actual damages argument regarding her $4,000 payment to Taylor Kia of Boardman fails.

{¶ 17} Based on the foregoing analysis, appellant's first assignment of error is overruled and her third assignment of error in this respect is overruled. Appellant failed to prove that she suffered actual damages as a result of KOB's breach of the lease agreement.

2. Verbal Agreement

{¶ 18} Appellant further argues in her third assignment of error that KOB breached a verbal lease agreement that was entered into on December 30, 2014, between appellant and KOB general manager James Clark. In support of her argument that a verbal lease agreement was entered into, appellant directs this court to the transcription of her meeting with Clark, which she recorded, unbeknownst to Clark, on her cell phone.

{¶ 19} A review of this transcript reflects that there was no lease agreement entered into during this meeting. Clark arranged to meet with appellant to discuss the complaint she filed with the Better Business Bureau. Clark testified at trial that he did not enter into an agreement with appellant during this meeting. Rather, he simply asked appellant what terms she wanted in her lease agreement and indicated that he would communicate this information to Kia's corporate offices and determine whether it was possible to generate a new lease with those terms. Appellant acknowledged at trial that the lease agreement that was purportedly entered into on December 30, 2014, was verbal and that neither she nor Clark signed anything.

{¶ 20} Accordingly, appellant's argument that KOB breached a verbal lease agreement on December 30, 2014, fails. Appellant's third assignment of error is overruled in this respect.

B. CSPA/O.A.C. Violations

{¶ 21} Appellant's second and fourth assignments of error pertain to the trial court's damages award for KOB's CSPA violations. In her second assignment of error, appellant argues that the trial court abused its discretion by failing to award treble and noneconomic damages to her for KOB's CSPA violations.

{¶ 22} The Ohio Consumer Sales Practices Act, R.C. Chapter 1345, protects consumers from suppliers' deceptive or unconscionable sales practices. Richards v. Beechmont Volvo , 127 Ohio App.3d 188, 190, 711 N.E.2d 1088 (1st Dist.1998), citing Thomas v. Sun Furniture & Appliance Co. , 61 Ohio App.2d 78, 399 N.E.2d 567 (1st Dist.1978). "It is a remedial act that courts must liberally construe in favor of the consumer." Id. , citing Einhorn v. Ford Motor Co. , 48 Ohio St.3d 27, 548 N.E.2d 933 (1990).

{¶ 23} Initially, we note that there was no transaction between appellant and KOB. The parties negotiated a lease agreement for a 2015 Sportage; however, the transaction fell through and was never consummated.

{¶ 24} R.C. 1345.09(B), governing a consumer's remedies for CSPA violations, provides:

Where the violation [of R.C. Chapter 1345] was an act or practice declared to be deceptive or unconscionable by rule adopted under division (B)(2) of section 1345.05 of the Revised Code before the consumer transaction on which the action is based, or an act or practice determined by a court of this state to violate section 1345.02, 1345.03, or 1345.031 of the Revised Code and committed after the decision containing the determination has been made available for public inspection under division (A)(3) of section 1345.05 of the Revised Code, the consumer may rescind the transaction or recover, but not in a class action, three times the amount of the consumer's actual economic damages or two hundred dollars, whichever is greater, plus an amount not exceeding five thousand dollars in noneconomic damages or recover damages or other appropriate relief in a class action under Civil Rule 23, as amended.

"Under the CSPA a consumer has the option of 'rescinding the transaction or recovering three times the amount of his actual damages or two hundred dollars whichever is greater.' " Brzezinski v. Feuerwerker , 8th Dist. Cuyahoga No. 74288, 2000 WL 1297699, 6 (Sept. 14, 2000), quoting R.C. 1345(B). In order to award treble damages, there must be a finding of actual damages. Nelson v. Pieratt , 12th Dist. Clermont No. CA2011-02-011, 2012-Ohio-2568, 2012 WL 2088635, ¶ 18, citing Baker v. Tri-County Harley Davidson, Inc. , 12th Dist. Butler No. CA98-12-250, 1999 WL 1037262, 3 (Nov. 15, 1999).

{¶ 25} In the instant matter, the trial court concluded that appellant failed to prove actual damages resulting from KOB's CSPA violations. This determination is supported by competent, credible evidence in the record. Because appellant did not suffer actual damages, she is not entitled to an award of treble damages. Accordingly, appellant's second assignment of error is overruled.

{¶ 26} In her fourth assignment of error, appellant argues that she was entitled to a $200 statutory damages award for each CSPA violation. As noted above, the trial court held that KOB violated O.A.C. 109:4-3-03 and 109:4-3-16. However, the trial court only awarded appellant one $200 statutory damages award.

{¶ 27} "The Ohio Supreme Court has never directly addressed the issue of multiple minimum awards for multiple violations of the CSPA versus a single award for multiple violations." Harrel v. Talley , 4th Dist. Athens No. 06CA41, 2007-Ohio-3784, 2007 WL 2137511, ¶ 24. Ohio courts are split on the issue of whether statutory damages for CSPA violations are calculated on a per-violation or a per-transaction basis. See Crye v. Smolak , 110 Ohio App.3d 504, 511, 674 N.E.2d 779 (10th Dist.1996). The majority of Ohio courts allow plaintiffs to recover for each individual violation of the CSPA "if there are separate rule violations caused by separate acts." Id. , citing Keller v. Pride Chevrolet, Inc. , 9th Dist. Summit No. 13536, 1988 WL 107009 (Oct. 12, 1988).

{¶ 28} After reviewing the record in this case, we find that appellant was not entitled to multiple statutory damages awards.

1. Color

{¶ 29} The trial court's determination that KOB violated O.A.C. 109:4-3-03 by promising to find the 2015 Sportage EX in bright silver knowing that the vehicle was not produced in that color and failing to provide appellant with this information, and by failing to disclose this information to appellant when she was offered a red Sportage is supported by competent, credible evidence in the record.

{¶ 30} It is undisputed that (1) appellant initially sought to lease a 2015 Sportage EX in bright silver, (2) KOB did not deliver a bright silver Sportage EX to appellant, and (3) the lease agreement that appellant and KOB attempted to execute on December 18, 2014 was for a red Sportage. However, the relevant inquiry regarding appellant's "bait and switch" claim in Count 4 is whether KOB disclosed to appellant that the 2015 Sportage EX was not manufactured in bright silver. The record reflects that appellant was never informed that the 2015 Sportage EX was not manufactured in bright silver.

{¶ 31} KOB salesman Ewan Dacres testified that on November 25, 2014, he was not aware that the 2015 Sportage EX was not manufactured in bright silver. He explained that after he met with appellant and her husband on November 25, he spent the next day or two trying to find a 2015 Sportage with all of the features appellant wanted in bright silver. He testified that no more than two days after the November 25 meeting, he told appellant that he was unable to find a bright silver 2015 Sportage EX. Dacres was able to locate a 2015 Sportage EX in red, and appellant agreed to lease the red vehicle.

{¶ 32} When appellant went to the dealership on December 1, 2014, a mineral silver Sportage was presented to her. Dacres testified that bright silver and mineral silver are the same color. He explained that when the vehicle is manufactured in Korea, the color is called bright silver, and when the car is manufactured in Mexico or the United States, the color is called mineral silver. (Tr. vol. 1, p. 15.) Dacres stated that the Kia brochure that indicated that the 2015 Sportage EX was not manufactured in bright silver was incorrect. However, Dacres confirmed that when comparing the color bright silver with the color mineral silver, as displayed in the brochure, the colors do not look the same. (Tr. vol. 1, p. 17.)

{¶ 33} Accordingly, the trial court's determination that KOB violated O.A.C. 109:4-3-03 by failing to advise appellant that the 2015 Sportage EX was not manufactured in bright silver is supported by competent, credible evidence in the record. The trial court properly awarded $200 in statutory damages to appellant for this violation pursuant to R.C. 1345.09(B).

2. Negative Equity

{¶ 34} In Count 1 of her complaint, appellant alleged, in relevant part, that KOB violated R.C. 1345.03(B)(2)-(7) and O.A.C. 109:4-3-16(B)(17) when the final price of the 2015 Sportage was increased by adding the negative equity from her 2012 Sportage into her monthly lease payment for the 2015 Sportage, and by refusing to immediately refund the $4,000 deposit. Complaint at ¶ 42. Appellant asserted that KOB's unfair and deceptive acts constituted a breach of contract. She alleged that KOB "retained the $4,000 deposit that was acquired for payment of the negative equity on [her] 2012 Sportage EX[.]" Complaint at ¶ 43.

{¶ 35} In Count 2 of her complaint, appellant alleged that KOB violated O.A.C. 109:4-3-16(B)(16) and (20) by failing to refund the $4,000 deposit to her when a vehicle was not delivered to her. In her appellate brief, appellant argues that KOB violated O.A.C. 109:4-3-16 by failing to properly disclose the negative equity that was being added into the monthly lease payment for the 2015 Sportage.

{¶ 36} The trial court held that KOB breached the lease agreement by failing to advise appellant about the negative equity on her 2012 Sportage and failing to have her sign the "negative equity disclosure box" on the lease agreement verifying this provision. The trial court held that this same conduct-KOB's failure to have appellant sign the negative equity disclosure notice in the lease agreement-constituted a violation of O.A.C. 109:4-3-16. After reviewing the record, we find that the trial court's determination that KOB violated O.A.C. 109:4-3-16 is against the manifest weight of the evidence.

{¶ 37} Initially, we note that appellant's arguments regarding the $4,000 deposit are premised on the assumption that her husband's $4,000 payment paid off the negative equity on appellant's 2012 Sportage. As noted above, the record reflects that this payment was applied to appellant's husband's lease agreements, not appellant's lease agreement. The trial court properly found that the $4,000 payment was incorporated into the husband's lease agreements and that he received a direct benefit from this payment. Accordingly, appellant was not entitled to a refund of the $4,000 when she backed out of the lease agreement for the 2015 Sportage.

{¶ 38} Although the negative equity disclosure box in the lease agreement was not signed, the negative equity from the 2012 Sportage is reflected in the lease agreement. Dacres testified that negative equity is the difference between the "payoff" or the amount of money that is still owed on a car and the current market value of the car. Appellant's lease agreement indicates that the "trade in allowance" for her 2012 Sportage was $14,800 and the "payoff amount" on the 2012 Sportage was $19,451.45. Thus, the "net trade in allowance" for the 2012 Sportage was -$4,651.45.

{¶ 39} KOB sales manager, Joe DelGuidice, opined that the negative equity on appellant's 2012 Sportage was disclosed by the net trade in allowance figure, -$4,651.45, and appellant signed the bottom of the document that contained this information. Likewise, KOB financial services manager, Noah Daniel, testified that the lease agreement indicated that appellant had negative equity on her 2012 Sportage because the net trade in allowance was -$4,651.45. Daniel testified that he normally has customers sign the bottom of the document that contains the negative equity disclosure box and the trade-in vehicle information, rather than having customers sign both the negative equity disclosure box and the bottom of the document. Finally, the trial court surmised that it was "crystal clear" from the lease agreement that KOB was still holding her accountable for the -$4,651.45. (Tr. vol. 3, p. 69.)

{¶ 40} Courts recognize that breaches of contract or warranty can constitute violations of the Consumer Sales Practices Act. See Temple v. Fleetwood Enters. , 133 Fed.Appx. 254, 266 (6th Cir.2005), citing Boyle v. Daimler Chrysler Corp. , 2d Dist. Clark No. 2001-CA-81, 2002-Ohio-4199, 2002 WL 1881157. In this case, however, a binding contract or agreement did not exist between appellant and KOB.

{¶ 41} It is undisputed that the parties negotiated the terms of a lease agreement for a 2015 Sportage, and the lease agreement was signed on December 18, 2014. However, there was no consideration transferred, and thus, the lease agreement was never consummated.

{¶ 42} Appellant acknowledges that she agreed to pay for the cost and installation of the side rails on the 2015 Sportage on December 6, 2014-12 days before the lease agreement was signed. Appellant's reply brief at 2. After appellant signed the lease agreement on December 18, 2014, she was presented with an invoice for the side rails. Despite the fact that she had previously agreed to pay for the side rails, she refused to do so when she received the invoice. When the dispute regarding the cost of the side rails arose, the parties' agreement fell through-appellant walked away from the transaction and left the dealership in her 2012 Sportage.

{¶ 43} Based on the foregoing analysis, we find that the trial court erred by concluding that KOB violated O.A.C. 109:4-3-16. Thus, appellant was not entitled to receive an additional $200 statutory damages award. Appellant's fourth assignment of error is overruled.

C. Defamation

{¶ 44} Appellant's fifth and sixth assignments of error pertain to her defamation claim. In her fifth assignment of error, appellant argues that the trial court erred by determining that the defamatory statements made by KOB employees did not constitute slander pursuant to R.C. 2739.01. In her sixth assignment of error, appellant argues that the trial court erred by determining that the defamatory statements were not published to third parties. We disagree.

{¶ 45} The trial court held that appellant failed to meet her burden of proof because she failed to show the KOB's employee's verbal comments directed to her were published to third parties.

Defamation is a false publication that injures a person's reputation, exposes the person to public hatred, contempt, ridicule, shame or disgrace, or affects the person adversely in his or her trade or business. Barner v. Kroehle , 8th Dist. Cuyahoga No. 87557, 2006-Ohio-5569 [2006 WL 3028766], ¶ 13, citing Matalka v. Lagemann , 21 Ohio App.3d 134, 486 N.E.2d 1220 (10th Dist.1985). To establish a claim for defamation, a plaintiff must show (1) a false statement of fact was made about the plaintiff, (2) the statement was defamatory, (3) the statement was published, (4) the plaintiff suffered injury as a proximate result of the publication, and (5) the defendant acted with the requisite degree of fault in publishing the statement. Am. Chem. Soc. v. Leadscope, Inc. , 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 77, citing Pollock v. Rashid , 117 Ohio App.3d 361, 368, 690 N.E.2d 903 (1st Dist.1996) ; see also Lucas v. Perciak , 8th Dist. Cuyahoga No. 96962, 2012-Ohio-88 [2012 WL 112983], ¶ 12, citing Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Servs., Inc. , 81 Ohio App.3d 591, 601, 611 N.E.2d 955 (9th Dist.1992).

Swoope v. Osagie , 2016-Ohio-8046, 76 N.E.3d 686, ¶ 28.

{¶ 46} In the instant matter, appellant testified at trial that DelGuidice personally and publically attacked her character on December 19, 2014. DelGuidice testified that appellant came to the dealership on December 19, 2014, and that she was very agitated and disruptive. He recalled telling appellant that she should be ashamed of the way she was acting in front of her son.

{¶ 47} On cross-examination, appellant testified that the conversation she had with DelGuidice during which he made the purportedly defamatory statements took place at a cubicle. She was not aware of anyone who heard this conversation. Appellant asserted that people could have heard the conversation because it was a "public conversation," but confirmed that she did not know whether anyone did, in fact, hear the conversation.

{¶ 48} KOB employee Tim Tallion testified that he "remember[s] hearing the conversation [between appellant and DelGuidice] get loud[.]" (Tr. vol. 2, p. 74.) He explained that appellant was very loud and upset about something. He opined that he was approximately 20 feet away from DelGuidice and appellant when they were conversing. He stated that he could only hear appellant's tone, not the content of the conversation. Tallion confirmed that he did not know what was going on between appellant and DelGuidice, but that appellant was getting loud.

{¶ 49} After reviewing the record, we find that appellant failed to demonstrate that DelGuidice's statement was published.

{¶ 50} Appellant further alleged that KOB employees made defamatory statements to the Bedford Police Department. Count 5 of appellant's complaint alleged, in relevant part, that KOB employees "openly telecommunicated false and defamatory statements to the Bedford Police [Department]." Complaint at ¶ 89. She goes on to allege that the employees "slurred her character" by reporting that she was a nuisance and that she refused to leave the dealership. Appellant testified at trial that Tallion called the police in an attempt to embarrass or cause further harm to her.

{¶ 51} Tallion testified that there was a lot of commotion when appellant returned to the dealership on December 19, 2014. He explained that appellant was very loud and upset about something, so he approached her to see if he could help. Tallion asserted, "I got yelled at, I felt uncomfortable, my customer-I felt like there was an uncomfortable situation for them just because of [appellant's] tone." (Tr. vol. 2, p. 77.) Tallion explained that when he first sat down with appellant, she calmed down, but she became upset again when he was unable to resolve the problem for her. He confirmed that he was getting yelled at and feeling uncomfortable, and he was also worried about other customers feeling uncomfortable.

{¶ 52} Tallion testified that he decided to call the police because he looked around and saw customers looking over at him and appellant. He explained that he was uncomfortable and he believed that the customers were even more uncomfortable than he was. Tallion asserted that appellant was disrupting business. He testified that he told the police officers that there was a customer at the dealership that he asked to leave but refused to do so. However, he did not recall exactly what he told the police dispatcher.

{¶ 53} As noted above, DelGuidice testified that appellant was very agitated and disruptive at the dealership. He explained that a person is disruptive when they are "getting loud, disrupting day-to-day business, may have cursing, anything to that nature would be a disruption in my opinion." (Tr. vol. 2, p. 66.)

{¶ 54} After reviewing the record, we find that appellant failed to demonstrate that Tallion's statements were false.

{¶ 55} Finally, appellant argues that as a result of Tallion's defamatory statements to the police, there is now a written record/report of the December 19, 2014 incident that is "published in the public record files, which could be requested by any current or future employer of the [a]ppellant." Appellant's brief at 24. We disagree.

{¶ 56} Appellant attached a copy of the Bedford Police Department's "call for service" report to her complaint as exhibit Q. The report's narrative provides, in its entirety, "complainant reports a female he asked to leave is still in the building. Female left on her own when officer arrived." The report does not identify appellant by name.

{¶ 57} Based on the foregoing analysis, the trial court properly determined that appellant failed to meet her burden of proof on her defamation claim. Appellant's fifth and sixth assignments of error are overruled.

D. Fraud

{¶ 58} Appellant's seventh and eighth assignments of error pertain to her claim for fraud.

{¶ 59} Fraud requires proof of the following elements: (1) a representation or, where there is a duty to disclose, omission of a fact; (2) that is material to the transaction at hand; (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (4) with the intent of misleading another into relying upon it; (5) justifiable reliance upon the representation or concealment; and (6) a resulting injury proximately caused by the reliance. Stancik v. Deutsche Natl. Bank , 8th Dist. Cuyahoga No. 102019, 2015-Ohio-2517, 2015 WL 3899224, ¶ 51.

{¶ 60} In the instant matter, appellant's fraud claim fails under the fifth element. Even if KOB made false and material misrepresentations regarding the lease agreement, appellant cannot demonstrate that she justifiably relied on these misrepresentations because she walked away from the transaction, rather than accepting the 2015 Sportage. Accordingly, the trial court properly determined that appellant failed to meet her burden of proof on her fraud claim.

{¶ 61} Appellant's seventh and eighth assignments of error are overruled.

III. Conclusion

{¶ 62} After thoroughly reviewing the record, we affirm the trial court's judgment. Appellant failed to prove actual damages resulting from KOB's breach of the lease agreement. The trial court properly awarded appellant $200 in statutory damages for KOB's violation of O.A.C. 109:4-3-03. Appellant failed to prove actual damages resulting from KOB's CSPA violation, and thus, she is not entitled to an award of treble damages. The trial court properly found that appellant failed to meet her burden of proof on her defamation and fraud claims.

{¶ 63} Judgment affirmed.

SEAN C. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR

      Defendant's exhibit B.

      Defendant's exhibit D.

      Plaintiff's exhibit No. 4.

      Defendant's exhibit B.

      Defendant's exhibit C.

      Appellant asserted in her complaint that her three-month old son was with her at KOB on December 19, 2014.


source: Caselaw Access Project

license: Public Domain

text:
    Nicholas A. HERMAN, et al., Plaintiffs-Appellants v. Luan SEMA, et al., Defendants-Appellees
    No. 105579
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 25, 2018
   Mark J. Obral, Thomas J. Silk, Obral, Silk & Associates, 55 Public Square, Suite 1700, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANTS.

John C. Cubar, Patrick J. Gump, McNeal, Schick, Archibald & Biro Co., L.P.A., Van Sweringen Arcade, Suite 250, 123 West Prospect Avenue, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEES, For Pekin Insurance Company, in care of Keith Brady, Adjuster.

Walter H. Krohngold, Ritzler, Coughlin & Paglia, Ltd., 1360 East Ninth Street, 1000 IMG Center, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLEES, For Allstate Fire and Casualty Insurance Company.

Michael E. Reardon, Douglass & Associates Co., L.P.A., 4725 Grayton Road, Cleveland, Ohio 44135, ATTORNEYS FOR APPELLEES, For Bureau of Workers' Compensation.

Libert Pinto, 700 W. St. Clair Avenue, Suite 400, Cleveland, Ohio 44113, Michael R. Shanabruch, Progressive House Counsel-Cleveland, 625 Alpha Drive, Box # 011B, Cleveland, Ohio 44143, ATTORNEYS FOR APPELLEES, For Luan Sema.

BEFORE: Laster Mays, J., E.A. Gallagher, A.J., and Blackmon, J.

JOURNAL ENTRY AND OPINION

ANITA LASTER MAYS, J.:

{¶ 1} Plaintiffs-appellants Nicholas Herman ("Herman") and Mark D. Wright ("Wright") appeal the trial court's decision to grant defendant's motion for summary judgment on the pleadings, and asks this court to reverse the trial court's decision and remand for further proceedings. We affirm.

I. Facts

{¶ 2} On May 20, 2014, Herman and Wright were parked along the right shoulder of the westbound lanes of I-90 in the city of Cleveland, with emergency flashers operating. Both Herman and Wright were in the scope of their employment with the Ohio Department of Transportation ("ODOT"), when Luan Sema ("Sema") struck Herman and Wright's vehicle, causing injuries to both. Herman and Wright filed a complaint against Sema, Pekin Insurance Company ("Pekin"), Allstate Fire and Casualty Insurance Company, and the Ohio Bureau of Workers' Compensation.

{¶ 3} Herman was issued a business auto insurance policy from Pekin with a policy term from December 23, 2013 to November 13, 2014. The named insured on the policy is Lawnstars Landscaping, L.L.C. ("Lawnstars"). Herman is the sole owner of Lawnstars. The vehicle that Pekin's policy covered was sometimes used for Herman's personal use and also for his business. However, Herman was in an ODOT vehicle and was not in his personal vehicle at the time of the accident. Nonetheless, Herman filed a claim with Pekin, under the underinsured motorist coverage. Pekin denied the claim, stating that Herman and Wright were not covered persons for the purposes of uninsured/underinsured motorist coverage with Lawnstars because they were not working within the course and scope of employment with Lawnstars at the time of the accident.

{¶ 4} The trial court agreed with Pekin and granted Pekin summary judgment stating in its journal entry:

The [c]ourt finds beyond doubt that the plaintiffs could prove no set of facts in support of the claim that plaintiffs are covered persons entitling them to underinsured motorist coverage under the policy issued by defendant Pekin Insurance Company to Lawnstars Landscaping, LLC, as the plaintiff Nicholas Herman was operating the motor vehicle involved in the collision while in the course and scope of his employment with the Ohio Department of Transportation * * *. In construing the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, the court finds that no material factual issues exist and that the movant defendant Pekin Insurance Company is entitled to judgment as matter of law under Civ.R. (12)(C).

See journal entry no. 97989903 (Mar. 9, 2017).

{¶ 5} As a result Herman filed this appeal submitting one assignment of error for our review:

I. The trial court erred in granting defendant Pekin Insurance Company's motion for judgment on the pleadings.

II. Law and Analysis

{¶ 6} In Herman's sole assignment of error, he argues that the trial court erred by granting Pekin's motion for summary judgment.

We review a ruling on a motion for judgment on the pleadings de novo. Thornton v. Cleveland , 176 Ohio App.3d 122, 2008-Ohio-1709, 890 N.E.2d 353, ¶ 3 (8th Dist.). Motions for judgment on the pleadings are governed by Civ.R. 12(C), which states: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." "In order to be entitled to a dismissal under Civ.R. 12(C), it must appear beyond doubt that [the nonmovant] can prove no set of facts warranting the requested relief, after construing all material factual allegations in the complaint and all reasonable inferences therefrom in [the nonmovant's] favor." State ex rel. Toledo v. Lucas Cty. Bd. of Elections , 95 Ohio St.3d 73, 74, 2002-Ohio-1383, 765 N.E.2d 854.

Dickson v. Gorski , 2017-Ohio-8582, 100 N.E.3d 857, ¶ 5.

{¶ 7} Herman argues that the policy does not contain specific language stating that the policy coverage only applies when Herman or Wright (as a passenger) are involved in a collision while in the scope of employment for Lawnstars. Herman contends that the policy is a generic policy that coverage extends to the insured for bodily injury caused by an accident . (Emphasis added.) The language of the policy states:

OHIO UNINSURED AND UNDERINSURED MOTORISTS COVERAGE-BODILY INJURY
For a covered "auto" licensed or principally garaged in, Ohio, this endorsement modifies insurance provided under the following:
YOUR AUTO POLICY FORM 1500
With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement.
This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. This endorsement replaces PART
VI-UNINSURED MOTORISTS INSURANCE (INCLUDING UNDERINSURED MOTORIST).
A. Coverage
1. We will pay all sums the "insured" is legally entitled to recover as compensatory damages from the owner or operator of an "uninsured motor vehicle" or "underinsured motor vehicle" because of "bodily injury" sustained by the "insured" and caused by an "accident."
The owner's or operator's liability for these damages must result from the ownership, maintenance or use of the "uninsured motor vehicle" or "underinsured motor vehicle."
2. With respect to damages resulting from an "accident" with an underinsured motor vehicle," we will pay under the coverage selected under this endorsement only if Paragraph a. or b. below applies:
a. The limits of any applicable liability bonds or policies have been exhausted by payment of judgments or settlements; or
b. A tentative settlement has been made between an "insured" and the insurer of the "underinsured motor vehicle" and we:
(1) Have been given prompt written notice of such settlement; and
(2) Advance payment to the "insured" in an amount equal to any judgment for damages arising out of a suit brought without our written consent is not binding on us.
B. Who Is An Insured
If the Named Insured is designated in the Declarations as:
2. A partnership, limited liability company, corporation or any other form of organization, then the following are "insureds":
a. Anyone "occupying" a covered "auto" or a temporary substitute for a covered "auto." The covered "auto" must be out of service because of its breakdown, repair, servicing, "loss" or destruction. However, no coverage is provided for anyone occupying an "auto" which is not a covered auto for Uninsured Motorists and/or Underinsured Motorists Coverage under this coverage form.
b. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured."
The Commercial Auto Policy provides Comprehensive Auto Coverage that supplements the definition of covered autos to include any auto. It provides as follows:
COMPREHENSIVE AUTO COVERAGE
With respects to Part IV-Liability Insurance, Part V-Medical Payments Insurance and Part VI-Uninsured Motorists Insurance including Underinsured Motorist, the definition shown under part II, sections A and B, which autos are covered autos, is deleted and replaced by the following:
A. Description of covered autos.
Any auto.
B. Owned autos you acquire after the policy begins.
1. You have coverage for autos that you acquire for the remainder of the policy period. Autos acquired during a prior policy period will be covered autos only if the auto is specifically described in the Declarations.
The policy also contains a Commercial Auto Enhancement Endorsement in relevant part reads as follows:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
COMMERCIAL AUTO ENHANCEMENT ENDORSEMENT
This endorsement modifies insurance provided under the following: YOUR AUTO POLICY
With respect to coverage provided by this endorsement, the provisions of YOUR AUTO POLICY apply unless modified by this endorsement.
3. PART VI, UNINSURED MOTORISTS INSURANCE (INCLUDING UNDERINSURED MOTORIST), D. WHO IS INSURED is amended by adding the following as insureds:
Any of your executive officers and his or her family members are insureds while occupying any private passenger or light truck (10,000 lbs. or less gross vehicle weight) type auto you do not own except any auto owned by that executive officer or by any of his or her family members.

{¶ 8} However, the trial court applied the reasoning from Westfield Ins. Co. v. Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, that decided that,

[A]bsent specific language to the contrary, a policy of insurance that names a corporation as an insured for uninsured or underinsured motorist coverage covers a loss sustained by an employee of the corporation only if the loss occurs within the course and scope of employment. Additionally, where a policy of insurance designates a corporation as a named insured, the designation of "family members" of the named insured as "other insureds" does not extend insurance coverage to a family member of an employee of the corporation, unless that employee is also a named insured.

Westfield at ¶ 62.

{¶ 9} In accordance with the holding in Westfield , there is no specific language to the contrary. Because Lawnstars was named on the policy as the insured, the coverage covers loss that occurs by an employee of Lawnstars within the course and scope of employment. Herman and Wright were within the course and scope of employment for ODOT at the time of accident, and therefore, coverage does not extend to them.

{¶ 10} Herman and Pekin disagree as to the language of the policy and what it covers.

It is generally the role of the finder of fact to resolve ambiguity. See, e.g., Davis v. Loopco Indus., Inc. , 66 Ohio St.3d 64, 609 N.E.2d 144 (1993). However, where the written contract is standardized and between parties of unequal bargaining power, an ambiguity in the writing will be interpreted strictly against the drafter and in favor of the nondrafting party. Cent. Realty Co. v. Clutter , 62 Ohio St.2d 411, 413, 406 N.E.2d 515 (1980). In the insurance context, the insurer customarily drafts the contract. Thus, an ambiguity in an insurance contract is ordinarily interpreted against the insurer and in favor of the insured. King v. Nationwide Ins. Co. , 35 Ohio St.3d 208, 519 N.E.2d 1380 (1988), syllabus.
There are limitations to the preceding rule. "Although, as a rule, a policy of insurance that is reasonably open to different interpretations will be construed most favorably for the insured, that rule will not be applied so as to provide an unreasonable interpretation of the words of the policy." Morfoot v. Stake , 174 Ohio St. 506, 190 N.E.2d 573 (1963), paragraph one of the syllabus. Likewise, where "the plaintiff is not a party to [the] contract of insurance * * *, [the plaintiff] is not in a position to urge, as one of the parties, that the contract be construed strictly against the other party." Cook v. Kozell , 176 Ohio St. 332, 336, 199 N.E.2d 566 (1964). This rings especially true where expanding coverage beyond a policyholder's needs will increase the policyholder's premiums. Id.

Id. at ¶ 13-14.

{¶ 11} It is unreasonable to believe that the business insurance policy should cover Herman and Wright's bodily injuries while working outside of the course and scope of Lawnstars' business. Therefore, we affirm the trial court's decision to grant Pekin's motion for judgment on the pleadings.

{¶ 12} Appellants' sole assignment of error is overruled.

{¶ 13} Judgment is affirmed.

EILEEN A. GALLAGHER, A.J., and PATRICIA ANN BLACKMON, J., CONCUR


author: DONOVAN, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Issac MORGAN, Defendant-Appellant
    NO. 2017-CA-29
    Court of Appeals of Ohio, Second District, Clark County.
    Rendered January 26, 2018
    ANDREW PICKERING, Atty. Reg. No. 68770, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501, Attorney for Plaintiff-Appellee
    ANDREW SCHLUETER, Atty. Reg. No. 86701, 5540 Far Hills Avenue, Suite 202, Dayton, Ohio 45429, Attorney for Defendant-Appellant
   DONOVAN, J.

{¶ 1} Defendant-appellant Issac Morgan appeals his conviction and sentence for one count of rape, in violation of R.C. 2907.02(A)(2), a felony of the first degree. The rape count was accompanied by a mandatory three-year firearm specification. Morgan was also sentenced to a mandatory five years of post-release control and informed that he was classified as a Tier III sex offender. Morgan filed a timely notice of appeal with this Court on March 20, 2017.

{¶ 2} On March 15, 2016, Morgan was indicted for two counts of rape, two counts of kidnapping, and one count of felonious assault. Each count was accompanied by a mandatory three-year firearm specification. At his arraignment on March 18, 2016, Morgan pled not guilty to all of the charges in the indictment.

{¶ 3} Thereafter on January 26, 2017, Morgan pled guilty to one count of rape and the accompanying firearm specification in exchange for dismissal of the remaining counts. After accepting Morgan's guilty plea, the trial court ordered the probation department to generate a presentence investigation report (PSI).

{¶ 4} On February 16, 2017, the trial court sentenced Morgan to ten years in prison for the rape count and to a mandatory three years in prison for the firearm specification. The trial court ordered that the sentence for the firearm specification be served prior to and consecutive to the sentence for the rape count, for an aggregate sentence of thirteen years imprisonment. The trial court also designated Morgan as a Tier III sex offender.

{¶ 5} It is from this judgment that Morgan now appeals.

{¶ 6} Morgan's sole assignment of error is as follows:

{¶ 7} "APPELLANT's GUILTY PLEA WAS NOT MADE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY."

{¶ 8} In his sole assignment of error, Morgan contends that the trial court erred because it did not substantially comply with Crim.R. 11(C)(2) when it failed to inform him that he was not eligible for community control sanctions because of the mandatory nature of his sentence for his rape conviction.

{¶ 9} In State v. Balidbid , 2d Dist. Montgomery No. 24511, 2012-Ohio-1406, 2012 WL 1079543, we stated the following:

In determining whether to accept a defendant's guilty plea, the trial court must determine whether the defendant knowingly, intelligently, and voluntarily entered the plea. State v. Johnson , 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988), at syllabus. "If a defendant's guilty plea is not knowing and voluntary, it has been obtained in violation of due process and is void." State v. Brown , 2d Dist. Montgomery Nos. 24520 & 24705, 2012-Ohio-199 [2012 WL 175029], ¶ 13, citing Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In order for a plea to be given knowingly and voluntarily, the trial court must follow the mandates of Crim. R. 11(C). Brown at ¶ 13.
Crim.R. 11(C)(2) requires the court to (a) determine that the defendant is making the plea voluntarily, with an understanding of the nature of the charges and the maximum penalty, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions; (b) inform the defendant of and determine that the defendant understands the effect of the plea of guilty [or no contest] and that the court, upon acceptance of the plea, may proceed with judgment and sentencing; and (c) inform the defendant and determine that he understands that, by entering the plea, the defendant is waiving the rights to a jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. State v. Brown , 2d Dist. Montgomery No. 21896, 2007-Ohio-6675 [2007 WL 4358473], ¶ 3. See also State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 27.
The Supreme Court of Ohio has urged trial courts to literally comply with Crim.R. 11. Clark at ¶ 29. However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial court need only substantially comply with those requirements. E.g. , State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). "Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving." Id. In contrast, the trial court must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights. Clark at ¶ 31.
Furthermore, when nonconstitutional rights are at issue, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made generally must show a prejudicial effect. State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that the plea would otherwise not have been entered. Id. at ¶ 15. Where the trial court completely fails to comply with Crim.R. 11(C)(2)(a) or (b), however, "an analysis of prejudice" is not implicated. State v. Sarkozy , 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.

Id. at ¶¶ 4-7.

{¶ 10} At Morgan's plea hearing, the trial court stated the following in pertinent part:

The Court has been handed a written plea of guilty to Count One, the rape offense, with the three-year firearm specification. The rape carries a possible maximum penalty of 11 years in prison , $20,000 fine, restitution if any were found to be due and owing, and court costs. Prison is a mandatory sentence for the firearm specification, and that's three years, which must be consecutive to any prison sentence the Defendant gets for the rape charge, which means a total possible maximum penalty of 14 years in prison .

{¶ 11} The following exchange also occurred between the trial court and Morgan, to wit:

The Court: Did you understand the possible maximum penalty I read into the record?
Morgan: Yes, sir.

{¶ 12} While the record establishes that the trial court informed Morgan of the maximum possible sentence for rape and that he was subject to a mandatory three years in prison for the firearm specification, it is undisputed that at no point during the plea hearing did the trial court inform Morgan that he was subject to a mandatory prison sentence if it accepted his guilty plea for the rape offense. Morgan asserts that the trial court failed to comply with Crim.R. 11(C)(2)(a) because it failed to advise him that a prison sentence was mandatory for the rape charge that he was pleading guilty to and failed to inform him that he was ineligible for community control sanctions in lieu of a prison term for this offense.

{¶ 13} R.C. 2929.13(F)(2) requires that the sentencing court impose a prison term for "[a]ny rape, regardless of whether force was involved and regardless of the age of the victim * * *." Because Morgan pleaded guilty to one count of rape, the trial court had to sentence him to prison, and he was ineligible to be sentenced to community control sanctions. See State v. Brigner , 4th Dist. Athens No. 14CA19, 2015-Ohio-2526, 2015 WL 3917983, ¶ 12 (finding that the trial court did not substantially comply with the notification requirement of Crim.R. 11(C)(2)(a) by wholly failing to advise the defendant that he was subject to mandatory prison terms for three rape convictions to which he pled guilty, which made him ineligible for community control sanctions in lieu of prison thus rendering his guilty pleas unknowing, involuntary, and unintelligently made); State v. Givens , 12th Dist. Butler No. CA2014-02-047, 2015-Ohio-361, 2015 WL 419882, ¶ 15-16 (trial court's failure to advise defendant that guilty plea to robbery charge carried a mandatory prison term that rendered him ineligible for community control or judicial release rendered the plea invalid so as to require reversal of the conviction and sentence); State v. Smith , 5th Dist. Licking No. 13-CA-44, 2014-Ohio-2990, 2014 WL 3030956, ¶ 11-12 (trial court's failure to notify defendant who pled no contest to rape charges of the amount of mandatory prison time and the time during which he would be ineligible for community control resulted in invalid plea that required reversal); State v. Rand , 10th Dist. Franklin No. 03AP-745, 2004-Ohio-5838, 2004 WL 2474426, ¶ 23 (trial court committed reversible error when it accepted defendant's guilty plea because it misinformed him that his sentence was not mandatory).

{¶ 14} In the instant case, the State argues that the trial court substantially complied with Crim.R. 11(C)(2) because it expressly informed Morgan that he was subject to a mandatory three-year prison term for the firearm specification attached to the rape count. However, a conviction for the firearm specification was contingent upon the trial court accepting Morgan's guilty plea to the rape count. Furthermore, it is undisputed that the trial court failed to inform Morgan that he was subject to a mandatory prison term if it accepted his guilty plea to the rape count. The trial court also failed to inform Morgan that because the prison time was mandatory for a rape conviction, he was ineligible for community control sanctions in lieu of prison. In fact, the record establishes that the trial court did not even mention the possibility or impossibility of community control at the plea hearing.

{¶ 15} "When a defendant on whom a mandatory prison sentence must be imposed enters a plea of guilty or no contest, the court must, before accepting the plea, determine the defendant's understanding that the defendant is subject to a mandatory sentence and that the mandatory sentence renders the defendant ineligible for probation or community control sanctions." Balidbid , at ¶ 10. Even if Morgan and his counsel "believed the community control was unlikely, such an understanding would not constitute substantial compliance, given the mandatory nature of his [rape] sentence." Id. at ¶ 12.

{¶ 16} Here, Morgan was neither advised that he was subject to a mandatory sentence upon his conviction for rape, nor did the trial court inform him that he would be ineligible for community control if he was convicted. We also note that Morgan's plea form did not affirmatively state that his prison sentence for the rape count was mandatory. Rather, the plea form states for Morgan's rape conviction as follows: "PRISON TERM IS MANDATORY n/a." Assuming "n/a" is understood to be an acronym for "not applicable," as is it commonly understood to be, Morgan's plea form suggests that a mandatory prison sentence is "not applicable" for his rape conviction, and is therefore, an incorrect statement of law which went unnoticed by the trial court and the parties.

{¶ 17} Thus, we conclude that in light of the foregoing analysis, the trial court failed to substantially comply with Crim.R. 11(C)(2)(a) and an additional analysis of prejudice is unnecessary. The trial court failed to inform Morgan that he was subject to a mandatory prison term before it accepted his guilty plea to the rape count. The trial court also failed to inform Morgan that because the prison time was mandatory for a rape conviction, he was ineligible for community control sanctions in lieu of prison. Furthermore, the plea form signed by Morgan incorrectly stated that a mandatory prison term was "not applicable" to his conviction for rape. Accordingly, we find that Morgan's guilty plea was not made knowingly, intelligently, and voluntarily.

{¶ 18} Morgan's sole assignment of error is sustained.

{¶ 19} Morgan's sole assignment of error having been sustained, the trial court's judgment is reversed, and the matter will be remanded for proceedings consistent with this opinion.

HALL, J. and TUCKER, J., concur.


text:
    STATE of Ohio, Plaintiff-Appellee, v. Lionel MOSES, Defendant-Appellant.
    NO. 16 MA 0006
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: January 26, 2018
    Paul Gains, Prosecutor, Ralph M. Rivera, Assistant Prosecutor, 21 W. Boardman St., 6th Floor, Youngstown, Ohio 44503, For Plaintiff-Appellee
    Attorney Lynn Maro, 7081 West Boulevard # 4, Youngstown, Ohio 44512, For Defendant-Appellant
   JUDGES: Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Mary DeGenaro

OPINION

DONOFRIO, J.

{¶ 1} Defendant-appellant, Lionel Moses, appeals from a Mahoning County Court of Common Pleas Court judgment convicting him of three counts of trafficking in drugs in violation of R.C. 2925.03(A)(1)(C)(6)(e), felonies of the second degree, following a jury trial.

{¶ 2} This case revolves around the plaintiff-appellee's, the State of Ohio, use of a confidential informant, Anthony West (West). West was arrested by the Mahoning Valley Law Enforcement Drug Task Force (Task Force) and indicted on numerous charges including drug trafficking and possession. After West was indicted, he agreed to cooperate with the Task Force in certain investigations in exchange for a shorter prison sentence.

{¶ 3} West provided the Task Force with a list of individuals he believed he could purchase drugs from. This list included appellant. As part of West's cooperation with the Task Force's investigation, West was to arrange a series of drug buys with appellant and wear video and audio recording equipment during the drug buys with appellant.

{¶ 4} There were three meetings between West and appellant: October 21, 2013, October 28, 2013, and November 18, 2013. All of these meetings took place at a house located in Youngstown, Ohio. During all of these meetings, West went into the house and came out with heroin in his possession. The video and audio recording devices that were planted on West were working during the October 21, 2013 transaction. However, the video was not working during the other two transactions. In all of the video and audio recordings, appellant was never seen possessing heroin or saying the word heroin.

{¶ 5} West asserted that he obtained the heroin from appellant in all three meetings at the house. The Ohio Bureau of Criminal Identification and Investigation (BCI) confirmed that the substances West obtained were in fact heroin. As a result, the Task Force arrested appellant and charged him with three counts of drug trafficking.

{¶ 6} At trial, the state called multiple members of the Task Force to testify. Notably for this appeal, the state called Officer Patton. Officer Patton testified on direct examination that West had successfully helped in other cases and that West was "credible." The state also admitted several pieces of evidence including, but not limited to: the video recording from West's transactions, still photographs from the video recordings, and text messages West received from "Pee Wee." Appellant exercised his right to not testify at trial and called no other witnesses.

{¶ 7} During the state's rebuttal closing argument, the prosecuting attorney made the following remarks:

Ladies and gentlemen, what you just witnessed from the defense is trying to force doubt into a situation where there is no doubt.
* * *
So what do they do? Well, I will just make something up during closing arguments and hopefully trick the jury into thinking, yeah, there should have been something. You have the guy who made it. Question him. You can't because it's indisputable what happened. So what do we do? Well, we can't attack the facts. We can't attack the law, so we'll stipulate to the drugs. Of course, you're going to stipulate to the drugs because they're drugs. Otherwise we have to parade three scientists in to say, yeah, those are drugs. Okay?
So what do you do? It's what the defense has done the whole time. Let's attack Anthony [West].

(Tr. 494-496).

{¶ 8} The prosecuting attorney also made this remark during his rebuttal closing argument:

But I go home to my wife and my three kids, and I think of what would happen if I didn't do that, if these fine officers didn't do that. We would have drug dealers galore out there doing their deeds, putting poison on our streets. That's what we would have. It is an unsavory business, but what's the alternative? We let drug dealers go free putting this crap on our streets and in the hands of our children, our friends, our families? No. That's not acceptable.

(Tr. 497-498).

{¶ 9} The prosecuting attorney also began to argue that a jury does not hear about a person's criminal record until they take the stand. Noting that appellant did not take the stand, appellant's counsel objected. The trial court sustained the objection and instructed the jury to disregard that particular remark.

{¶ 10} After closing arguments, the trial court read its instructions of law to the jury. Appellant requested that the trial court read to the jury an instruction on accomplice testimony. The purpose of the instruction is to inform the jury that when an accomplice is testifying, they are doing so because they have a special motive to testify in a particular manner. The trial court denied this request. Ultimately, the jury returned guilty verdicts on all counts.

{¶ 11} At the sentencing hearing, the trial court sentenced appellant to six years of incarceration on count one, three years of incarceration on count two, and three years of incarceration on count three for a total of twelve years of incarceration. The trial court ordered that these sentences were to run consecutively. The state then requested that the trial court make the necessary findings for consecutive sentences pursuant to R.C. 2929.14 but the trial court refused. The trial court issued its judgment entry regarding appellant's sentence on January 6, 2016. Appellant timely filed this appeal on January 13, 2016. Appellant now raises six assignments of error. As explained below, only appellant's first assignment of error will be addressed.

{¶ 12} Appellant's first assignment of error states:

APPELLANT WAS DENIED A FAIR TRIAL WHEN THE POLICE IMPROPERLY VOUCHED FOR THE CONFIDENTIAL INFORMANT'S CREDIBILITY IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 1, 10, AND 16 OF THE OHIO CONSTITUTION.

{¶ 13} Appellant argues that Officer Patton inappropriately bolstered West's credibility by stating on direct examination that West was "credible." Appellant contends that this is inappropriate because Officer Patton made a judgment on West's credibility as a witness which is the sole responsibility of the jury.

{¶ 14} It appears from the context of appellant's brief he is alleging that the state engaged in prosecutorial misconduct by asking a witness to potentially assess the credibility of another witness. The test for prosecutorial misconduct is whether the remarks were improper and, if so, whether the remarks prejudicially affected the accused's substantial rights. State v. Twyford , 94 Ohio St.3d 340, 2002-Ohio-894, 763 N.E.2d 122. The touchstone of this analysis "is the fairness of the trial, not the culpability of the prosecutor." Id. quoting Smith v. Phillips , 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

{¶ 15} The jury is the sole judge of the credibility of a witness. State v. Swiger , 5 Ohio St.2d 151, 156, 214 N.E.2d 417 (1966). Generally, the opinion of a witness as to whether another witness is being truthful is inadmissible. State v. Persohn , 7th Dist. No. 11 CO 37, 2012-Ohio-6091, 2012 WL 6679921, ¶ 68 citing State v. Boston , 46 Ohio St.3d 108, 128, 545 N.E.2d 1220 (1989) (overruled on other grounds).

{¶ 16} The exact passage that is the basis of this assignment of error appears in the direct examination of Officer Patton, one of the officers of the Task Force. The passage is:

Q Officer Patton, you indicated that you had worked with Anthony [West]. Did you find him to be credible during the time that he worked with us?
A Yes.
Q Now, let me go back to you begin this investigation. Anthony agrees to cooperate. Defense counsel brought up some other instances of wrongdoings by him. Did we attempt to help him out in any way in any of that stuff that happened aside from our case?
A No.

(Tr. 420-421).

{¶ 17} Appellant objected to this line of questioning but the trial court overruled the objection. (Tr. 420). Appellant contends that these questions and answers are an inappropriate opinion for a witness to make regarding the credibility of a witness. But the state argues that these questions and answers are analogous to a recent issue presented to the Fourth District.

{¶ 18} In State v. Smith , 2016-Ohio-5062, 70 N.E.3d 150 (4th Dist.), the Fourth District ruled that the following testimony from a state's witness on redirect about said witness was not improper vouching for the witness' credibility:

[Prosecutor]: You've testified against heroin traffickers in this county before?
[Schuman]: Yes.
[Prosecutor]: The one out here where they had to stop traffic and arrested three of them coming from Cincinnati?
[Schuman]: Yes.
[Prosecutor]: And you testified in that case?
[Schuman]: Yes.
[Prosecutor]: Okay. Judge Harcha made a ruling in that case about your credibility, didn't he?
[Schuman]: Yes, he did.
[Prosecutor]: And he said you were a most credible witness?
[Schuman]: Yes, he did.

State v. Smith , at ¶ 51.

{¶ 19} The Fourth District reasoned that this line of questioning did not amount to prosecutorial misconduct because the prosecutor did not express a personal voucher for the witness' credibility. Id. at ¶ 55.

{¶ 20} This District has the same or a similar rule to that of the Fourth District's. "It is improper for an attorney to express his or her personal belief or opinion as to the credibility of a witness or as to the guilt of the accused." State v. Rector , 7th Dist. No. 01 AP 758, 2002-Ohio-7442, 2002 WL 32098116, ¶ 58 quoting State v. Williams , 79 Ohio St.3d 1, 679 N.E.2d 646 (1997). In order for the prosecutor to "vouch" for the witness, the prosecutor's statements must imply knowledge of facts outside the record or place the prosecutor's personal credibility in issue. Id. citing State v. Keene , 81 Ohio St.3d 646, 693 N.E.2d 246 (1998).

{¶ 21} Even though the facts in the case at bar are somewhat different from those in Smith and Rector , the same rule applies. In this case, the prosecuting attorney aligned himself with the police. Specifically, the prosecutor asked Officer Patton if he found West to be credible "during the time he worked with us?" (Tr. 420). Additionally, the prosecutor asked Officer Patton, "Did we attempt to help him out in any way in any of that stuff that happened aside from our case?" (Tr. 421). The words "us," "we," and "our" when spoken by the prosecuting attorney to Officer Patton during trial indicates that the prosecutor's office and the police share the same viewpoints regarding the evidence, including the credibility of West. With the prosecution aligning itself with the police openly and on the record and Officer Patton assessing West as a "credible" witness, the prosecution was essentially vouching for the witness. There is no indication in the record of corroboration as to why West was a credible informant.

{¶ 22} Additionally, the Sixth Circuit held that "[b]olstering occurs when the prosecutor implies that the witness's testimony is corroborated by evidence known by the government but not known by a jury. A prosecutor may ask a government agent or other witnesses whether he was able to corroborate what he learned in the criminal investigation. However, if the prosecutor pursues this line of questioning, she must also draw out testimony explaining how the information was corroborated and where it originated." United States v. Francis , 170 F.3d 546, 551 (6th Cir. 1999). In this case, there is no corroboration of how exactly West was deemed credible by Patton other than West did prior work for police and Patton deemed him credible. Furthermore, the Sixth Circuit also held that a defendant is denied a fair trial when testimony from a police officer regarding an informant's "reliability" in other cases is offered. Cooper v. Sowders , 837 F.2d 284, 288 (6th Cir. 1988).

{¶ 23} Similar rulings have been used in Ohio as well. The First District held that the opinion of a witness about another witness' truthfulness is inadmissible and the problem of such testimony is only compounded when the opinion is from a police officer as jurors are more likely to perceive police officers as expert witnesses. State v. Huff , 145 Ohio App.3d 555, 763 N.E.2d 695 (1st Dist. 2001). Ultimately, the trial court's decision to allow testimony regarding West's credibility as an informant was error. The remedy for prosecutorial misconduct is a new trial. State v. McCleod , 7th Dist. No. 00 JE 8, 2001-Ohio-3480, 2001 WL 1647305 citing State v. Keenan , 81 Ohio St.3d 133, 1998-Ohio-459, 689 N.E.2d 929.

{¶ 24} Accordingly, appellant's first assignment of error has merit and is sustained.

{¶ 25} Appellant's remaining assignments of error are as follows:

Second Assignment of Error
APPELLANT WAS DENIED A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S COMMENTS DURING VOIR DIRE AND REBUTTAL CLOSING ARGUMENT IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 1, 10, AND 16 OF THE OHIO CONSTITUTION.
Third Assignment of Error
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GIVE REQUESTED JURY INSTRUCTIONS ON ACCOMPLICE/INFORMANT TESTIMONY, AND DENIED MR. MOSES' RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND OHIO CONSTITUTION ARTICLE 1, SECTION 1, 10, AND 16.
Fourth Assignment of Error
THE TRIAL COURT ERRED IN ADMITTING THE RECORDINGS FROM THE WIRE WORN BY THE CONFIDENTIAL INFORMANT, AND A DVD OF STILL PHOTOGRAPHS AND TEXT MESSAGES WERE NOT PROPERLY AUTHENTICATED THEREBY DEPRIVING APPELLANT THE RIGHT TO A FAIR TRIAL IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 1, 10, AND 16 OF THE OHIO CONSTITUTION.
Fifth Assignment of Error
DEFENDANT'S SENTENCE IS CONTRARY TO LAW BECAUSE THE TRIAL COURT IMPOSED CONSECUTIVE SENTENCES WITHOUT MAKING THE NECESSARY FINDINGS PURSUANT TO R.C. 2929.14.
Sixth Assignment of Error
APPELLANT'S CONVICTION AND SENTENCE VIOLATE THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AS THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 26} Based on our resolution of appellant's first assignment of error, appellant's second, third, fourth, fifth, and sixth assignments of error are moot.

{¶ 27} For the reasons stated above, appellant's conviction is hereby vacated.

The trial court's judgment is reversed and this matter is remanded for a new trial.

Waite, J., concurs

DeGenaro, J., concurs