author: EILEEN A. GALLAGHER, A.J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Matthew JUNG, Defendant-Appellant
    No. 105928
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 19, 2018
    Erin E. Hanson, The Rockefeller Building, Suite 1300, 614 W. Superior Avenue, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Shannon M. Musson, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: E.A. Gallagher, A.J., Stewart, J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   EILEEN A. GALLAGHER, A.J.:

{¶ 1} Defendant-appellant Matthew Jung appeals the sentences imposed by the Cuyahoga County Court of Common Pleas in three cases, Case Nos. CR-14-584243-A, CR-14-591390-A and CR-14-591534-C, after he violated community control sanctions. Jung contends that his sentences in all three cases should be vacated because the record does not support the imposition of maximum sentences and the trial court improperly imposed postrelease control for an unclassified felony in CR-14-591390. For the reasons that follow, we vacate the portion of Jung's sentence in CR-14-591390 that imposes postrelease control. We otherwise affirm Jung's sentences.

Factual and Procedural Background

{¶ 2} In September 2016, Jung pled guilty to one count of breaking and entering in violation of R.C. 2911.13 (a fifth-degree felony) and one count of theft in violation of R.C. 2913.02(A)(1) (a first-degree misdemeanor) in CR-14-584243, one count of open dumping and burning in violation of R.C. 3734.03 (an unclassified felony) in CR-14-591390 and one count of receiving stolen property in violation of R.C. 2913.51(1) (a fifth-degree felony) in CR-14-591534. At the time Jung committed these offenses he was on probation for a theft charge in the Parma Municipal Court. On October 5, 2016, after reviewing the presentence investigation report and hearing from Jung, his counsel and the mother of Jung's children, the trial court sentenced Jung to one-and-a-half years of community control sanctions in each case. The trial court also sentenced Jung to a six-month jail term on the theft charge in CR-14-584243, but suspended the jail term, ordered Jung to perform 100 hours of community service in CR-14-591390, ordered Jung to pay $3,020 in restitution in CR-14-591534 and ordered him to perform community service in lieu of paying costs in all three cases. At the sentencing hearing, the trial court advised Jung that if he violated the community control sanctions, he would receive maximum sentences in each case. The trial judge further indicated that he would order that the sentences be served consecutively. Jung did not appeal the trial court's judgment.

{¶ 3} On October 20, 2016, Jung failed a drug test, testing positive for opiates and heroin. A capias was issued for his arrest. In December 2016, Jung was arrested on the capias.

{¶ 4} On December 22, 2016, the trial court held a community control violation hearing based on the failed drug test. Jung admitted the allegations against him and the trial court found Jung to have violated his community control sanctions. After hearing from Jung, his counsel, the probation officer and the state, the trial judge continued community control sanctions in each of the cases, ordering Jung to complete an inpatient treatment program and attend aftercare and twelve-step meetings. The trial judge told Jung, "If you fail to comply with these orders of probation, you're looking at some serious consequences." He once again informed Jung that if he violated the community control sanctions, he would receive maximum sentences in each case and that he would order that the sentences be served consecutively. Jung indicated that he understood. Jung was remanded to the Cuyahoga County jail and ordered to be transported to an inpatient treatment facility when a bed became available.

{¶ 5} On January 4, 2017, Jung was transported to a residential treatment facility for inpatient drug treatment. That same day, he absconded from the facility. A capias was issued for his arrest. In May 2017, Jung was arrested on the capias and returned to jail.

{¶ 6} On May 22, 2017, the trial court held a second community control violation hearing. Once again, Jung admitted the allegations against him and the trial court found that Jung violated his community control sanctions by absconding from the treatment facility. Prior to sentencing Jung on the community control violation, the trial court heard from Jung, his probation officer and his counsel. The probation officer outlined the allegations against Jung and indicated that a computerized criminal history record check did not reveal any new charges pending against Jung. Jung apologized for his actions and claimed that he left the facility due to a "family emergency" and concern regarding the safety of his children. He admitted that after he absconded from the inpatient treatment facility, he had lied and had given his father's name as his own when he was approached by police while collecting donations for his son's flag football team and when he was arrested for the community control violation. He requested a second chance to complete treatment.

{¶ 7} After "consider[ing] all this information," the trial court found that Jung was not amenable to community control sanctions, terminated them and imposed maximum prison sentences in each case. In CR-14-591534, the trial court imposed a 12-month prison sentence, in CR-14-591390, the trial court imposed a prison sentence of two-to-four years and in CR-14-584243, the trial court imposed a 12-month prison sentence on the breaking and entering charge and imposed the previously suspended six-month jail term on the theft charge. The trial court ordered that each of the sentences run concurrently to one another. The trial court also imposed postrelease control for up to three years in each case.

{¶ 8} Jung appealed his sentences, raising the following two assignments of error for review:

ASSIGNMENT OF ERROR I: The trial court's imposition of maximum sentences in CR-14-584243 and CR-14-591534 is not supported by the record in this matter.
ASSIGNMENT OF ERROR NO. II: The trial court erred when imposing sentence in CR-14-591390.

Law and Analysis

Maximum Sentences

{¶ 9} Jung challenges the trial court's imposition of maximum sentences following his violation of community control sanctions in each of the three cases at issue. Jung argues that his sentences in CR-14-584243 and CR-14-591534 should be vacated because (1) the trial court did not consider the principles and purposes of sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12 when sentencing Jung and (2) "[t]he record as a whole does not support the sentences imposed" by the trial court in those cases. He also contends that the trial court abused its discretion by failing to consider the overriding purposes of felony sentencing under R.C. 2929.11 when sentencing him to a two-to-four year prison term for violating R.C. 3734.03 in CR-14-591390.

{¶ 10} "Following a community control violation, the trial court conducts a second sentencing hearing. At this second hearing, the court sentences the offender anew and must comply with the relevant sentencing statutes." State v. Fraley , 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17 ; see also State v. Jackson , 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 11.

{¶ 11} Former R.C. 2929.15(B)(1) provides a trial court with a choice of sanctions where a defendant violates community control sanctions:

If the conditions of a community control sanction are violated or if the offender violates a law or leaves the state without the permission of the court or the offender's probation officer, the sentencing court may impose upon the violator one or more of the following penalties:
(a) A longer time under the same sanction if the total time under the sanctions does not exceed the five-year limit specified in division (A) of this section;
(b) A more restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the Revised Code ;
(c) _A prison term on the offender pursuant to section 2929.14 of the Revised Code.

{¶ 12} Where the trial court imposes a prison term for violation of community control sanctions, R.C. 2929.15(B)(3) provides:

The prison term, if any, imposed upon a violator pursuant to this division shall be within the range of prison terms available for the offense for which the sanction that was violated was imposed and shall not exceed the prison term specified in the notice provided to the offender at the sentencing hearing pursuant to division (B)(2) of section 2929.19 of the Revised Code. * * *

{¶ 13} In this case, the sentences at issue were within the statutory range and did not exceed the sentences the trial court told Jung, at the sentencing hearing, it would impose if he violated his community control sanctions.

Felony Sentences

{¶ 14} We review felony sentences under the standard set forth in R.C. 2953.08(G)(2). State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 21-23 (" R.C. 2953.08 specifically and comprehensively defines the parameters and standards-including the standard of review-for felony-sentencing appeals."). Under R.C. 2953.08(G)(2), an appellate court must "review the record, including the findings underlying the sentence * * * given by the sentencing court." An appellate court "may increase, reduce, or otherwise modify a sentence" or it may vacate a sentence and remand the matter to the trial court for resentencing if it "clearly and convincingly" finds either that: (1) "the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant" or (2) "the sentence is otherwise contrary to law." R.C. 2953.08(G)(2) ; Marcum at ¶ 1, 21-23. A sentence is contrary to law if the sentence falls outside-the statutory range or if the trial court fails to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12. See, e.g., State v. Pawlak , 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, 2016 WL 5371773, ¶ 58 ; State v. Keith , 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, 2016 WL 4141260, ¶ 8, citing State v. Hinton , 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, 2015 WL 7571481, ¶ 10. When a sentence is imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12, "[a]n appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence." Marcum at ¶ 23 ; see also State v. McGowan , 147 Ohio St.3d 166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1.

{¶ 15} R.C. 2929.11 provides that "[a] sentence imposed for a felony shall be reasonably calculated to achieve two overriding purposes" of felony sentencing-"to protect the public from future crime by the offender and others and to punish the offender"-while "using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources." R.C. 2929.11(A) - (B). The statute further provides that "[t]o achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both." R.C. 2929.11(A). A court imposing a sentence for a felony "has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code." R.C. 2929.12(A). However, the sentencing court must consider various seriousness factors set forth in R.C. 2929.12(B) and (C) and recidivism factors set forth in R.C. 2929.12(D) and (E) in determining the most effective way to comply with the purposes of sentencing set forth in R.C. 2929.11.

{¶ 16} Although the trial court must consider both the principles and purposes of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12 when sentencing a defendant on a felony, the trial court is not required to use particular language or to make specific findings on the record demonstrating its consideration of those purposes, principles and factors. See, e.g., State v. Gaines , 8th Dist. Cuyahoga No. 103476, 2016-Ohio-4863, 2016 WL 3632497, ¶ 11. Even where a trial court does not reference its consideration of R.C. 2929.11 and 2929.12 at the sentencing hearing or in its sentencing journal entry, this court has held that it can be presumed that the trial court considered the relevant sentencing factors under R.C. 2929.11 and 2929.12 unless the defendant affirmatively shows otherwise. See, e.g. , State v. Jones , 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, 2014 WL 72518, ¶ 13 (" R.C. 2929.11 and 2929.12 are not fact-finding statutes, and consideration of the appropriate factors can be presumed unless the defendant affirmatively shows to the contrary".); see also State v. Rogers , 8th Dist. Cuyahoga No. 100903, 2014-Ohio-4573, 2014 WL 5306783, ¶ 4 (" 'Although the trial court's consideration of these factors is mandatory, proof of that consideration is not-"where the trial court does not put on the record its consideration of R.C. 2929.11 and 2929.12, it is presumed that the trial court gave proper consideration of those statutes.' " * * * This presumption can be rebutted by an affirmative showing by the defendant."), quoting State v. Esner , 8th Dist. Cuyahoga No. 90740, 2008-Ohio-6654, 2008 WL 5259725, ¶ 10, quoting State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18, fn. 4.

{¶ 17} In support of his contention that the trial court did not consider R.C. 2929.11 or 2929.12 when sentencing him, Jung points out that (1) "[a]t no point while imposing sentence or even in the court's journal entries did the court indicate it considered the purposes and principles of sentencing" and (2) the trial court "made no findings about the seriousness of [Jung's] conduct or other factors set forth in R.C. 2929.12."

{¶ 18} Jung's argument that the trial court failed to consider the principles and purposes of sentencing under R.C. 2929.11 and the relevant sentencing factors under 2929.12 is without merit. He has made no affirmative showing that the trial court did not comply with its obligation to consider the relevant sentencing principles, purposes and factors under R.C. 2929.11 and 2929.12. Accordingly, we presume that the trial court gave proper consideration to R.C. 2929.11 and 2929.12 in this case.

{¶ 19} Further, while the trial court did not expressly state on the record or in its sentencing journal entry that it considered R.C. 2929.11 and 2929.12, sufficient information in the record exists for this court to conclude that the trial court considered the relevant factors contained in R.C. 2929.12 in imposing sentences that comply with the purposes and principles of R.C. 2929.11. The trial judge had previously reviewed the PSI and presided at both the original sentencing hearing and the first violation of community control hearing. Both Jung and his counsel addressed the trial court and Jung engaged in a dialogue with the trial court at his second violation of community control hearing. The trial court heard Jung's claims of responsibility for his actions, his remorse regarding how his actions had adversely impacted his family members and his acknowledgment that he had a serious drug problem. However, the trial court noted that he had already given Jung "multiple chances" to comply with community control sanctions and turn his life around. Jung had been on probation at the time he committed the offenses at issue. Although no new charges had been filed against Jung, the trial court noted that Jung had lied to police and identified himself as his father in an attempt to escape detection after he absconded from the drug treatment facility. The trial court previously warned Jung-twice-that if he did not comply with the community control sanctions, he would receive the maximum sentences on each of the offenses of which he had been convicted. Jung indicated that he understood this, yet, once again, he violated his community control sanctions.

{¶ 20} On the record before us, we cannot say that any of Jung's felony sentences is clearly and convincingly contrary to law or that the record otherwise clearly and convincingly does not support his sentences.

{¶ 21} Jung's first assignment of error is overruled.

Postrelease Control

{¶ 22} Jung also contends that the trial court erred in imposing postrelease control for his violation of R.C. 3734.03 because it is an unclassified felony. We agree.

{¶ 23} It is well-established that R.C. 2967.28 does not authorize a trial court to impose postrelease control for unclassified felonies. See, e.g., State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 36 ; State v. Clifton, 8th Dist. Cuyahoga No. 105220, 2018-Ohio-269, 2018 WL 555527, ¶ 26. Accordingly, the portion of Jung's sentence that imposes postrelease control is contrary to law and void. Clifton at ¶ 26 ; see also State v. Loyed , 8th Dist. Cuyahoga No. 101054, 2014-Ohio-5141, 2014 WL 6483288, ¶ 13 ; State v. Watters , 8th Dist. Cuyahoga No. 97636, 2012-Ohio-3809, 2012 WL 3611920, ¶ 21-22. The state concedes this error. Jung's second assignment of error is overruled in part and sustained in part. We vacate the portion of Jung's sentence in CR-14-591390 that imposes postrelease control. We otherwise affirm Jung's sentence in CR-14-591390 and affirm his sentences in CR-14-584243 and CR-14-591534.

{¶ 24} Judgment in CR-14-584243 and CR-14-591534 affirmed. Judgment in CR-14-591390 affirmed in part, reversed in part and remanded for the trial court to issue a new journal entry reflecting that Jung is not subject to postrelease control in that case.

MELODY J. STEWART, J., and FRANK D. CELEBREZZE, JR., J., CONCUR

      Violations of R.C. 3734.03 are sentenced pursuant to R.C. 3734.99. Because "those sentences allowed in R.C. 3734.99 stand alone and are not subject to all of the (specific) guidelines in Chapter 2929 of the Revised Code" and "violation of the environmental statutes results in an unspecified felony," this court has held that, although a trial court must consider the overriding purposes of felony sentencing when sentencing a defendant for a violation of R.C. Chapter 3734, "compliance with the specific felony sentencing guidelines [is] impossible." State v. Steiner , 8th Dist. Cuyahoga Nos. 80488, 80489, 80490, 2002-Ohio-4019, 2002 WL 1821748, ¶ 22 ; State v. Lundy , 8th Dist. Cuyahoga No. 87050, 2006-Ohio-3497, 2006 WL 1851118, ¶ 26 ; see also State v. Jackson , 4th Dist. Lawrence No. 97CA2, 1997 WL 749480, *3 (Dec. 1, 1997) (where defendant was sentenced under R.C. 3734.99, it was not necessary for the trial court to comply with R.C. 2929.12 but the trial court "must comply with the overriding purposes of felony sentencing outlined in R.C. 2929.11.)"

      In Case No. CR-14-584243 Jung was convicted both of breaking and entering in violation of R.C. 2911.13 (a fifth-degree felony) and theft in violation of R.C. 2913.02(A)(1) (a first-degree misdemeanor). However, he argues only that his sentences are contrary to law because the trial court failed to comply with statutory requirements for felony sentencing. Because Jung did not include any argument or authority related to the sentencing on his misdemeanor offense, pursuant to App.R. 12(A)(2) and 16(A)(7), we disregard his assignment of error to the extent it relates to that offense.

      In fact, the trial court imposed a lesser aggregate sentence. At both the original sentencing hearing and the December 22, 2016 community control violation hearing, the trial court informed Jung that it would impose maximum consecutive sentences if he were to violate his community control sanctions. Instead, it imposed maximum concurrent sentences.


source: Caselaw Access Project

author: ANITA LASTER MAYS, J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Devontae HUGLEY, Defendant-Appellant
    No. 105692
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 19, 2018
    Susan J. Moran, 55 Public Square, Suite 1616, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Shannon M. Raley, Brandon Piteo, Assistant County Prosecutors, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Laster Mays, J., Kilbane, P.J., and Keough, J.
    JOURNAL ENTRY AND OPINION
   ANITA LASTER MAYS, J.:

{¶ 1} Defendant-appellant Devontae Hugley appeals his convictions for kidnapping, domestic violence, aggravated menacing, endangering children, and criminal damaging with various specifications. We affirm in part, reverse in part, and remand.

I. Background and Facts

{¶ 2} Appellant was indicted on December 20, 2016, for: kidnapping, a first-degree felony ( R.C. 2905.01(A)(3) ), with a one-year and three-year firearm specification;

domestic violence, a first-degree misdemeanor ( R.C. 2919.25(A) ); aggravated menacing, a first-degree misdemeanor ( R.C. 2903.21(A) ); endangering children, a first-degree misdemeanor ( R.C. 2919.22(A) ); having weapons while under disability, a third-degree felony ( R.C. 2923.13(A)(2) ; and criminal damaging or endangering, a second-degree misdemeanor ( R.C. 2909.06(A)(1) ).

{¶ 3} The charges arose from a December 8, 2016 altercation between appellant and VW. Appellant had been living with VW for several months, along with VW's son, who was not present the day of the incident, and her five-year-old daughter. There were suspicions of infidelity by both parties.

{¶ 4} On December 7, 2016, VW left the house with the daughter after viewing inappropriate activity on appellant's cell phone, and returned the next morning. VW refused to tell appellant her whereabouts the prior night, the disagreement escalated and appellant was ultimately indicted. Appellant pleaded not guilty to the charges.

{¶ 5} Prior to the trial, the state filed a motion to call VW as an adverse witness, explaining that VW had begun to "recant [her testimony] as to significant details without clear explanation." Motion (Mar. 9, 2017), p. 3. The state opined that VW was not cooperating due to her continued intimate relationship with appellant.

{¶ 6} The motion summarizes the content of a telephone call, which was initiated by appellant to a third-party who was instructed to add VW to the call. During the call, VW told appellant that she advised the state that she wanted to drop the charges and contacted the parole officer in an attempt to clear things up. Appellant instructed VW to say that he did not have a gun, and that she only said he had one at the time because she was angry and wanted him to go to jail.

{¶ 7} The trial court construed the motion as a request "for the [c]ourt on its own motion to call [VW] as a [c]ourt's witness." (Tr. 130.) The trial court granted the motion over defense objections.

A. Trial

{¶ 8} Trial commenced on March 8, 2017. The testimony established that Cleveland Police Department officers DiFranco and Tessin responded to a 911 call on December 8, 2016, reporting the assault of a female by a male wielding a firearm and wearing a red bubble jacket and gray hat. Officer DiFranco wore a body-cam. The officers observed appellant, who fit the suspect's description, standing in the open doorway of an apartment as they entered the building.

{¶ 9} Appellant walked through the doorway and the officers followed. Appellant continued to walk directly into the dining room that was adjacent to the living room door entry way, then immediately returned to the living room where VW and the child were sitting at a table. Appellant was handcuffed, frisked and taken to the police car by the officers.

{¶ 10} Officer DiFranco returned to the apartment to interview VW, who explained that appellant was angry and insisted on knowing where she spent the night. VW pushed appellant into the wall, damaging the plaster, started her car with the remote ignition and left the apartment with her daughter. Appellant walked with them to the car.

{¶ 11} VW placed the daughter in the back seat, sat in the driver's seat and appellant sat in the passenger's seat, continuing to question her. After VW refused to reveal her whereabouts, appellant removed the key from the ignition, exited the car, punctured the front tire with a knife, and told VW that she was not going anywhere.

{¶ 12} VW kicked appellant in the groin for puncturing the tire and she, her daughter, and appellant returned to the apartment. Appellant responded by grabbing the hood of her sweatshirt that was pulled up onto her head. In the apartment, appellant threatened to break a small glass end table belonging to VW and looked surprised when he tapped it with a hammer and it shattered.

{¶ 13} VW told appellant that he could retrieve a lighter from her car and locked the apartment door when appellant exited. VW took her daughter across the hall to her neighbor's apartment where officers found them. The 911 call was placed by VW's cousin in response to VW's call to her.

{¶ 14} VW told the officers that appellant had a gun, and then picked up a .380 Bersa from the dining room window seat and handed it to officer DiFranco. Appellant was then Mirandized and charged. The body-cam recording was played for the jury and admitted into evidence.

{¶ 15} Det. Sudbury was assigned to investigate the incident on behalf of the domestic violence unit. He reviewed the police report and a handwritten misdemeanor complaint statement written by VW that said she did not want to prosecute. A knife, revolver, and hammer were obtained as part of the investigation. The firearm was operable but no forensic tests were done on the evidence to determine whether it had been fired.

{¶ 16} VW "was uncooperative" when contacted by Det. Sudbury. Though stating that he was not certain that his recollection was correct, Det. Sudbury "believe[d]" that VW told him that appellant "shot at me, he cut my car tire, and I don't want to prosecute." (Tr. 313.)

{¶ 17} Sgt. Christopher testified that appellant was recorded advising VW how to respond to the state's questions about the incident during a March 7, 2017 telephone conversation that occurred while appellant was in jail awaiting trial. After the conversation, VW's recollection of the incident no longer corroborated that of the officers and the body-cam evidence.

{¶ 18} VW testified as an adverse witness and said that she intentionally lied to officers about the gun so that appellant would be arrested. In spite of the impeachment evidence of prior inconsistent statements, body-cam evidence and the testimony of the officers, VW maintained that many of her initial statements were fabricated to ensure appellant's removal from the premises.

{¶ 19} Confronted with photographs of VW's apartment, the car, and other evidence, VW explained that, at a point during the argument, she felt that appellant was standing too close to her. She pushed him into the wall, using both arms, which caused damage to the plaster. Appellant was taller than VW, but appellant weighed less than VW "by a significant amount." (Tr. 396.)

{¶ 20} VW also testified that appellant got into her car and said, "talk to me, tell me where you was at or whatever" when VW attempted to leave. (Tr. 378.) VW refused, appellant removed the key and flattened the tire. Appellant returned the key "because we was going to go back in the house, talk, whatever." (Tr. 380.) VW kicked appellant in the groin as they were walking into the building and he "yanked at" her hood that was on her head at the time as though questioning why she kicked him. (Tr. 418.)

{¶ 21} VW also testified that the knife that she gave to the police was not the knife that was used to cut the tire.

COUNSEL: How similar would you say this knife is to the knife that was actually used.
VW: I don't know what the knife looked like. I didn't never find it. They [police] was trying to help me find the knife. I couldn't find it.

(Tr. 398-399.)

{¶ 22} Appellant testified and confirmed that he and VW were arguing, he was pushed into the wall by VW, followed her to her car, and punctured the tire. He also confirmed pulling VW's hood to stop her from kicking him in the groin again. Appellant admitted to breaking the table and stated that he told VW that he would pay for it.

{¶ 23} Appellant denied possessing a gun and said that he walked briefly in the room adjacent to the living room to put the "weed that he was smoking in his pocket." (Tr. 580.) "How could I get a gun off of me in 10 seconds?" (Tr. 598.) Appellant also pointed out how much noise the bag that the gun was removed from made on the body-cam recording. "I couldn't put the gun in a bag or whatever in ten seconds and [the police] don't hear [it]. The door is wide open." (Tr. 599.)

{¶ 24} On March 14, 2017, the jury rendered a verdict of guilty on all counts. Appellant was sentenced to a total of nine years of imprisonment: (1) three years for the firearm specification prior to and consecutive to six years for kidnapping (Count 1), totaling nine years; (2) 180 days concurrent to the Count 1 sentence for Counts 2, 3, 4, and 6; and (3) three years concurrent with Count 1 for having a weapon while under disability.

{¶ 25} Appellant appeals his convictions.

II. Assignments of Error

{¶ 26} Appellant assigns five errors relating to the trial court's conduct of the case:

I. The trial court erred in allowing the state to admit impeachment evidence as substantive evidence of the crimes alleged.
II. The appellant was denied effective assistance of counsel in violation of Amendments VI and XIV, United States Constitution, Amendment I, Article I, Section 10, Ohio Constitution.
III. The state failed to present sufficient evidence of the offenses charged.
IV. Appellant's convictions are against the manifest weight of the evidence.
V. Appellant was denied due process and a fair and impartial trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution, and Article I, Section 16, of the Ohio Constitution, based on prosecutorial misconduct.

III. Analysis

A. Admission of Impeachment Evidence as Substantive Evidence

{¶ 27} The first assignment of error challenges the trial court's admission of impeachment evidence. The state's impeachment motion is entitled "motion to call [VW] as an adverse witness." It is based on VW's recantation of prior statements and the recorded telephone call.

{¶ 28} The state proffered Evid.R. 611(C) in support of the motion:

(C) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

(Emphasis added.)

{¶ 29} The trial court elected to call VW as the court's witness as permitted by Evid.R. 614 :

(A) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(B) Interrogation by court. The court may interrogate witnesses, in an impartial manner, whether called by itself or by a party.
(C) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

{¶ 30} A trial court has discretion to control the flow of the trial, including questioning witnesses "in a search for the truth" under Evid.R. 611 and 614. State v. Redon , 8th Dist. Cuyahoga No. 92611, 2009-Ohio-5966, 2009 WL 3765971, ¶ 8. A trial court must tread carefully where a jury is involved to prevent communicating the trial court's opinion on the witness's credibility to the jury. Id. at ¶ 12.

{¶ 31} Thus, the trial court was wholly within its discretion to call VW as the court's witness and we will not reverse the trial court's decision absent an abuse of discretion. Parma Hts. v. Owca , 2017-Ohio-179, 77 N.E.3d 505, ¶ 35 (8th Dist.), citing State v. Stadmire , 8th Dist. Cuyahoga No. 81188, 2003-Ohio-873, 2003 WL 549912, ¶ 26 ; State v. Davis , 79 Ohio App.3d 450, 454, 607 N.E.2d 543 (4th Dist.1992).

{¶ 32} The state presented substantial evidence of VW's recantation of material prior statements, possibly motivated by VW's ongoing relationship with appellant. VW's testimony at trial echoed the telephone discussion with appellant regarding the content of her testimony:

A witness whose appearance is important to the proper determination of the case, but who appears to be favorable to the other party, is a principal candidate for application of Evid.R. 614(A). State v. Brewer , Franklin No. 84AP-852, 1986 WL 2652 (Feb. 25, 1986). McPherson, as the victim and an eyewitness, was a principal candidate for the application of Evid.R. 614(A) when he would not otherwise cooperate with the party originally planning to call him. Therefore, the trial court's decision to call McPherson as its witness was not unreasonable, arbitrary, or unconscionable.

State v. Curry , 8th Dist. Cuyahoga No. 89075, 2007-Ohio-5721, 2007 WL 3105268, ¶ 18.

{¶ 33} A review of the body-cam recording confirms that VW's statement at the scene conflicts with her later testimony in key respects. We also observe that VW was held in contempt for failure to appear for trial and a material witness warrant was issued for her arrest, further buttressing the state's position regarding VW's reluctance to cooperate with the state. Once VW became the witness of the court, "the state was permitted to impeach [her] with [her] prior inconsistent statement." State v. Pritchard , 8th Dist. Cuyahoga No. 78497, 2001 WL 898427, at *5-6 (Aug. 2, 2001) citing State v. Dacons , 5 Ohio App.3d 112, 449 N.E.2d 507 (10th Dist.1982).

{¶ 34} We further determine that appellant's reliance on State v. Davis , 8th Dist. Cuyahoga No. 102726, 2016-Ohio-694, 2016 WL 762585, is misplaced. Davis was charged with domestic violence. The victim alleged that Davis "pulled the victim's hair weave and threw it to the ground." Id. at ¶ 1. The victim admitted that she grabbed Davis's injured hand and he " 'ended up breaking my hair [weave] loose and loosening my tracks up.' " Id. at ¶ 6. Police arrived to find a " 'wig' " in the driveway. Id. at ¶ 7.

{¶ 35} The victim initially told police during the 911 call that Davis had a firearm that he placed into her mouth, threatening to kill her, and fired shots at the house. The victim also said she and Davis were trying to come up with exonerating scenarios because she had previously lied and presented false evidence resulting in Davis's incarceration. Id. at ¶ 9. The victim's description of events during trial was, to quote the trial court, "incredible" and "questionable." Id. at ¶ 10.

{¶ 36} This court reversed the trial court's finding of guilt that focused on the victim's claim regarding the hair extensions and corroboration by the police officer at the scene that the hair was laying in the driveway when he arrived. We held that there was no evidence that Davis removed the extensions. "There was no competing evidence-the victim's testimony stood alone." Id. at ¶ 13.

{¶ 37} Appellant argues that, like Davis , there is no corroborating evidence of what occurred because the body-cam is merely hearsay evidence that was later recanted by the witness. We agree with the state that appellant has failed to direct us to any error by the court in the admission of the evidence. The first assigned error is without merit.

B. Sufficiency and Manifest Weight of the Evidence

{¶ 38} We take the third and fourth errors out of order and combine them for analysis.

1. Standard of Review

{¶ 39} The Ohio Supreme Court has explained that, "[t]he legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different." State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶ 40} "Sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the evidence's effect of inducing belief." State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387, 678 N.E.2d 541.

{¶ 41} Viewed in a light most favorable to the prosecution, the question is whether the state met its burden of production. The inquiry is not whether the prosecution's evidence "is to be believed, but whether, if believed, the evidence admitted at trial supported the conviction." State v. Rudd , 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, 2016 WL 193495, ¶ 32, citing State v. Starks , 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, 2009 WL 1965296, ¶ 25. Would " 'any rational trier of fact' " find that " 'the essential elements of the crime [were] proven beyond a reasonable doubt.' " State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

{¶ 42} In contrast, we sit as a thirteenth juror and intercede only where it is apparent that " 'a jury has 'lost its way' " when entertaining a manifest weight challenge.

State v. Stewart, 8th Dist. Cuyahoga No. 86411, 2006-Ohio-813, 2006 WL 440153, ¶ 11, quoting Thompkins at 387, 678 N.E.2d 541. While we "may determine" that the trial court's judgment "is sustained by sufficient evidence," we "may nevertheless conclude that the judgment is against the weight of the evidence." Thompkins at 387, 678 N.E.2d 541.

2. Kidnapping

{¶ 43} R.C. 2905.01(A)(3) provides:

(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:
* * *
(3) To terrorize, or to inflict serious physical harm on the victim or another * * *.

{¶ 44} The state argues that a kidnapping occurred because VW "was given no other choice but to go back into her apartment." Appellee brief (Sept. 14, 2017), p. 16. Appellant counters that VW was not threatened and did not have to follow appellant back into the apartment after the key removal and tire cutting incident.

{¶ 45} VW testified that appellant was taller than her but there was a considerable difference in weight in her favor. She pushed appellant into a wall with enough strength to damage the wall. It does not appear that VW's liberty was restrained by force, threat, or deception when VW exited the car and "kicked [appellant] in the privates." (Tr. 418.) Appellant's response was to pull her hood to prevent another strike. After this incident, VW returned to the apartment with the child.

{¶ 46} There is no evidence of restraint of removal or restraint of liberty for the purpose of terrorizing VW and the child or inflicting physical harm. We find that the evidence was not only insufficient as a matter of law, but the conviction also was against the manifest weight of the evidence. The kidnapping conviction is reversed and vacated.

3. Aggravated Menacing

{¶ 47} R.C. 2903.21(A), aggravated menacing, provides:

No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person, the other person's unborn, or a member of the other person's immediate family. In addition to any other basis for the other person's belief that the offender will cause serious physical harm to the person or property of the other person, the other person's unborn, or a member of the other person's immediate family, the other person's belief may be based on words or conduct of the offender that are directed at or identify a corporation, association, or other organization that employs the other person or to which the other person belongs.

{¶ 48} Proof of aggravated menacing requires that the state demonstrate the victim had a " 'subjective believe or fear of serious physical harm.' " State v. Thomas , 8th Dist. Cuyahoga No. 104174, 2017-Ohio-957, 2017 WL 1034597, ¶ 22, quoting State v. Landrum , 1st Dist. Hamilton No. C-150718, 2016-Ohio-5666, 2016 WL 4651577, ¶ 9.

{¶ 49} According to VW's statements to officers at the scene, appellant wielded a gun, punctured a tire, and shattered the table in the apartment so she called the police to have him removed. We affirm the finding on this charge.

4. Endangering Children

{¶ 50} Pursuant to R.C. 2919.22(A), endangering children:

(A) No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. It is not a violation of a duty of care, protection, or support under this division when the parent, guardian, custodian, or person having custody or control of a child treats the physical or mental illness or defect of the child by spiritual means through prayer alone, in accordance with the tenets of a recognized religious body.

{¶ 51} The purpose and policy of R.C. 2919.22(A) is to protect children by " 'preventing acts of omission or neglect.' " Cleveland Hts. v. Cohen , 2015-Ohio-1636, 31 N.E.3d 695, ¶ 27 (8th Dist.), quoting State v. Bennett , 7th Dist. Mahoning No. 12 MA 223, 2013-Ohio-5524, 2013 WL 6672407, ¶ 19, quoting State v. Newman , 4th Dist. Ross No. 94CA2079, 1995 WL 499771 (Aug. 18, 1995).

{¶ 52} "A child endangering conviction may be based upon isolated incidents or even 'a single rash decision' in which a parent recklessly puts his or her child's health or safety at risk." Id. , quoting State v. James , 12th Dist. Brown No. CA2000-03-005, 2000 WL 1843196, at *2-3 (Dec. 18, 2000). See State v. Huffman , 8th Dist. Cuyahoga No. 93000, 2010-Ohio-5116, 2010 WL 4132253, ¶ 30 (conviction for endangering children affirmed where defendant's five-year-old nephew was in the backseat of the car that defendant was driving when he was arrested for a drug-related offense).

{¶ 53} The state charges that appellant was in the custody and control of the child. VW testified that appellant assumed a parental role while residing with VW and the child, and that the child viewed appellant as a parental figure.

{¶ 54} We find that the state established that the appellant had custody and control over the child and put the child's safety at substantial risk by the child's presence during the incident. State v. Masterson , 8th Dist. Cuyahoga No. 88102, 2007-Ohio-1145, 2007 WL 764533, ¶ 23

5. Having a Weapon While Under Disability

{¶ 55} R.C. 2923.13(A)(2), having a weapon while under disability, provides:

(A) Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
* * *
(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.

{¶ 56} The body-cam evidence reveals appellant walking ahead of the officers into the dining room adjacent to the living room and quickly returning to the living room. During Officer DiFranco's discussion with VW after appellant had been removed, VW volunteered information about the gun. She walked into the adjacent room and picked the gun up from the window seat.

{¶ 57} In light of the foregoing evidence, supplemented by the 911 call and the recorded conversation between VW and appellant discussing how to handle the gun testimony, we find that the evidence is sufficient to find that appellant possessed a gun at the time of the incident.

C. Prosecutorial Misconduct

{¶ 58} Appellant's fifth assignment of error asserts that the introduction of impeachment evidence of the body-cam video, video appearance of "Red," the next door neighbor that resided in the unit where VW and her daughter were sitting, and the 911 call constituted prosecutorial misconduct resulting in the denial of a fair trial. We disagree.

{¶ 59} A prosecuting attorney's conduct constitutes error where the conduct deprives the defendant of a fair trial. State v. York , 8th Dist. Cuyahoga No. 87814, 2006-Ohio-6934, 2006 WL 3804524, ¶ 23, citing State v. Keenan , 66 Ohio St.3d 402-405, 613 N.E.2d 203 (1993) ; State v. Gest , 108 Ohio App.3d 248, 257, 670 N.E.2d 536 (8th Dist.1995). Prosecutorial misconduct may violate a defendant's due process rights; therefore, "the touchstone of a due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." York , at ¶ 23, citing Smith v. Phillips , 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). We consider the impact of the misconduct "in light of the whole trial." Id. , citing State v. Durr, 58 Ohio St.3d 86, 94, 568 N.E.2d 674 (1991).

{¶ 60} In our analysis of the first assignment of error, we held that the trial court did not abuse its discretion in allowing the impeachment evidence and treating VW as a witness of the court. Parma Hts. , 2017-Ohio-179, 77 N.E.3d 505, ¶ 35, citing Stadmire , 8th Dist. Cuyahoga No. 81188, 2003-Ohio-873, ¶ 26 ; Davis , 79 Ohio App.3d 450, 454, 607 N.E.2d 543. Officer DiFranco, who was wearing the body-cam, testified to the video depiction. VW provided a written statement of the events, and Sgt. Christopher testified about the jail recordings discussing the gun.

{¶ 61} "[P]rosecutorial misconduct constitutes reversible error only in rare instances." State v. Eisermann , 8th Dist. Cuyahoga No. 100967, 2015-Ohio-591, 2015 WL 758989, ¶ 44, citing State v. Ball , 8th Dist. Cuyahoga No. 99990, 2014-Ohio-1060, 2014 WL 1340226, citing State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993).

"[A] defendant's substantial rights cannot be prejudiced where the remaining evidence, standing alone, is so overwhelming that it constitutes defendant's guilt, and the outcome of the case would have been the same regardless of evidence admitted erroneously."

State v. Williams , 8th Dist. Cuyahoga No. 95796, 2011-Ohio-5483, 2011 WL 5116501, ¶ 67, quoting State v. Hicks , 8th Dist. Cuyahoga No. 95133, 194 Ohio App.3d 743, 2011-Ohio-3578, 957 N.E.2d 866, ¶ 30, citing State v. Williams , 38 Ohio St.3d 346, 349-350, 528 N.E.2d 910 (1988).

{¶ 62} The fifth assignment of error also lacks merit.

D. Ineffective Assistance of Counsel

{¶ 63} Appellant's second assigned error asserts ineffective assistance of counsel. To prevail, appellant must demonstrate that counsel was deficient in some aspect of his representation, and there is a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Dues , 2014-Ohio-5276, 24 N.E.3d 751, ¶ 57 (8th Dist.), citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). " 'Counsel's performance will not be deemed ineffective unless and until the performance is proven to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance.' " Dues at ¶ 57, quoting State v. Iacona , 93 Ohio St.3d 83, 105, 752 N.E.2d 937 (2001). Thus, in light of our finding that the errors are unsubstantiated errors, we do not find that counsel was ineffective.

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

IV. Conclusion

{¶ 65} We find that the evidence was insufficient and against the manifest weight to sustain the kidnapping conviction in this case. The conviction is ordered reversed and the matter is remanded to vacate that portion of the sentence. The remaining convictions are affirmed.

{¶ 66} Judgment is affirmed in part, reversed in part, and remanded.

MARY EILEEN KILBANE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR


author: HALL, J.

text:
    George HELMS, Plaintiff-Appellee v. Lisa THOMAS, et al., Defendant-Appellant
    No. 27744
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on April 20, 2018
    EDWARD D. PLATO, Atty. Reg. No. 002294, 30500 Northwestern Highway, Suite 425, Farmington Hills, MI 48334, WILLIAM A. POSEY, Atty. Reg. No. 0021821, MICHAEL T. CAPPEL, Atty. Reg. No. 0079193, and JOSEPH E. LEHNERT, Atty. Reg. No. 89492, One E. Fourth Street, Suite 1400, Cincinnati, Ohio 45202, Attorneys for Plaintiff-Appellee George Helms
    KENNETH IGNOZZI, Atty. Reg. No. 0055431, 131 N. Ludlow Street, Suite 1400, Dayton, Ohio 45402, Attorney for Defendant-Appellant Lisa Thomas
    JOHN C.SCOTT, Atty. Reg. No. 0029518, and TRACY SCHWETSCHENAU, Atty. Reg. No. 0091578, 1 W. Fourth Street, Suite 2050, Cincinnati, Ohio 45202, Attorneys for Defendant-Appellee R Boulevard Properties, LLC
   HALL, J.

{¶ 1} Defendant Lisa Thomas appeals the trial court's order appointing a receiver with respect to residential property that is a subject of this action. We find no error with the appointment, so we affirm.

I. Background

{¶ 2} Thomas and plaintiff George Helms were previously romantically involved. They first met in 2007, when Helms hired Thomas as an escort. According to Thomas, in October 2013, they agreed that Thomas would provide exclusive escort services to Helms in exchange for lifetime financial support. She claims that he agreed to pay her $30,000 a month. During all this, and known to Thomas, Helms was married.

{¶ 3} In October 2013, Helms and Thomas formed an Ohio Limited Liability Company, defendant R Boulevard Properties, LLC of which they are each fifty percent members. They executed an operating agreement, which required a capital contribution by each member. Helms and Thomas purchased the residential property at 9397 Ridings Boulevard in Dayton, Ohio, in the LLC's name. This property is the LLC's only asset. The parties differ on the reason for the LLC and the reason for purchasing the property. Helms claims that the LLC was formed to invest in real estate and that they purchased the property as an investment. But Thomas claims that the LLC was formed to carry out the agreement for exclusive escort services, to conceal the parties' relationship from Helms's wife, and to avoid taxes. She says that the property was purchased for her in exchange for her services. Thomas further claims that Helms gave her the property for her own personal use. Indeed, Thomas currently lives on the property.

{¶ 4} In February 2016, Helms's wife filed for divorce for the second time. The following month, Helms and Thomas engaged a realtor to sell the property. Also that month, after supporting Thomas financially for nearly three years, Helms allegedly stopped all payments and support. Thomas had moved out of the house and into an apartment in Michigan, but she decided unilaterally to move back into the Dayton house, which interfered with the attempt to sell it. When an offer was made in June 2016 to purchase the property, Thomas refused to accept it.

{¶ 5} In July 2016, Helms filed an action against Thomas asserting the following claims: (1) dissolution of the LLC, (2) injunctive relief, (3) declaratory judgment, (4) breach of fiduciary duty, (5) breach of fiduciary duties, (6) accounting, (7) conversion, and (8) civil theft. Helms claims that he contributed a total sum of $1,709,876.41 to the LLC. He says that Thomas failed to make any contributions. Helms alleges that Thomas has misappropriated, wasted, and/or diverted the assets of the LLC for her personal benefit. He seeks dissolution of the LLC, injunctive relief enjoining Thomas from misappropriating LLC assets, a declaration of the parties' rights and obligations under the operating agreement, an accounting, compensatory damages, punitive damages, attorney fees, and costs. Thomas filed counterclaims against Helms for (1) breach of contract, (2) breach of implied-in-fact contract, (3) promissory estoppel, (4) inter vivos gift, (5) breach of fiduciary duty, and (6) breach of the duty of good faith. She also filed a cross-claim against the LLC for fraudulent and improper organization.

{¶ 6} Helms filed a motion to dismiss Thomas's counterclaims and filed a motion for judicial dissolution and appointment of a liquidating trustee on the grounds that the parties are at an impasse as to the purpose of the LLC. In response, Thomas filed a motion for continuance and/or stay, arguing that dissolution is premature. Thomas then filed a motion for summary judgment on her counterclaims against Helms and a motion for summary judgment on her claim against the LLC.

{¶ 7} In May 2017, the trial court ruled on the parties' pending motions. The court overruled Helms's motion to dismiss Thomas's counterclaims. But the court concluded that her claim for breach of the duty of good faith was included in her claim for breach of fiduciary duty, so it dismissed the former claim. The court granted Thomas's motion for a stay, staying Helm's motion for dissolution. The court overruled Thomas's motions for summary judgment. The court dismissed Thomas's cross-claim against the LLC, with the agreement of the parties. The court noted that the LLC would remain a nominal party.

{¶ 8} In April, before the trial court's above ruling, the LLC asked the trial court to appoint a receiver under R.C. 1701.91 and R.C. 2735.01 to perform an accounting and to preserve its property during this litigation. The court held an evidentiary hearing in August on the appointment of a receiver at which both Helms and Thomas testified. Both parties admitted that they signed the operating agreement and that the agreement requires unanimous agreement. They both admit that they are deadlocked as to the management of the company: they cannot agree on the purpose of the LLC; the management of its assets, including paying the insurance, maintenance, and property taxes associated with the LLC's sole property; nor even what assets exist.

{¶ 9} The evidence showed that only $187.31 remained in the LLC's bank account. This means that the LLC was unable to pay its bills, including homeowners' insurance and property taxes. Helms testified that he was willing to contribute capital to pay for fifty percent of the insurance, but Thomas refused to make any contribution towards the cost of the insurance. More than $50,000 in property taxes are due, part of which is penalties and interest. Thomas testified that she has been paying other bills related to the property. But she also testified that she has been using money from the LLC's bank account to pay personal expenses.

{¶ 10} After considering the testimony and exhibits, the complaint, and the parties' affidavits, the trial court ordered the appointment of a receiver. The court found that "the members of R Boulevard LLC are hopelessly deadlocked and that the appointment of a Receiver is warranted to, among other things, preserve the value of the existing assets of R Boulevard LLC." The court ordered the receiver to begin taking steps to pay the LLC's outstanding liabilities, including property taxes, and left open the possibility of selling or leasing the property.

{¶ 11} Thomas appealed.

II. Analysis

{¶ 12} Thomas's sole assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION IN APPOINTING A RECEIVER TO PRESERVE THE VALUE OF THE EXISTING ASSETS OF R BOULEVARD PROPERTIES, LLC.

{¶ 13} A trial court has authority under R.C. 1701.91 and R.C. 2735.01 to appoint a receiver. Under R.C. 1701.91, "[u]pon the filing of a complaint for judicial dissolution [of a corporation]," the court may "appoint a receiver with such authority and duties as the court from time to time may direct, to take such other proceedings as may be necessary to protect the property or the rights of the complainants or of the persons interested, and to carry on the business of the corporation until a full hearing can be had." R.C. 1701.91(C). And under R.C. 2735.01, the court may appoint a receiver in cases such as these:

(1) In an action * * * between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of a party whose right to or interest in the property or fund, or the proceeds of the property or fund, is probable, and when it is shown that the property or fund is in danger of being lost, removed, or materially injured;
* * *
(6) When a corporation, limited liability company, partnership, limited partnership, or other entity has been dissolved, is insolvent, is in imminent danger of insolvency, or has forfeited its corporate, limited liability company, partnership, limited partnership, or other entity rights;
(7) In all other cases in which receivers have been appointed by the usages of equity.

R.C. 2735.01(A). " R.C. 2735.01 is a procedural statute and is to be liberally construed." State ex rel. Petro v. Gold , 166 Ohio App.3d 371, 2006-Ohio-943, 850 N.E.2d 1218, ¶ 66 (10th Dist.).

{¶ 14} "The decision to appoint a receiver is within the trial court's sound discretion. * * * Absent an abuse of discretion, an appellate court will not reverse a decision on whether to appoint a receiver." U.S. Bank, N.A. v. 2900 Presidential Drive, LLC , 2d Dist. Greene No. 2013 CA 60, 2014-Ohio-1121, 2014 WL 1339643, ¶ 12.

{¶ 15} Thomas argues that the trial court should not have appointed a receiver over the property for five reasons: (1) the court failed first to determine the rights and interests of the parties in the property, (2) the receivership order is inconsistent with the court's summary-judgment decision with respect to the parties' interests in the property, (3) there is no clear and convincing need for a receiver, (4) an adequate legal remedy exists to protect the LLC's interests, and (5) Thomas will suffer irreparable harm from the appointment of a receiver.

A. A preliminary determination of rights and interests was not required.

{¶ 16} Thomas argues that before appointing a receiver the trial court should have determined the rights and interests of the parties in the property. In essence, Thomas argues that the merits of the parties' claims needed to be decided before a receiver could be appointed. We disagree.

{¶ 17} The law does not require a preliminary determination of parties' rights and interests before appointing a receiver. "The appointment of a receiver is an ancillary proceeding. Community First Bank & Trust v. Dafoe , 108 Ohio St.3d 472, 2006-Ohio-1503, 844 N.E.2d 825, ¶ 26. It is a 'separate procedure[ ] tied to a main action, acting in furtherance of the main action, but with [its] own li[fe].' Id. " U.S. Bank, N.A. v. Courthouse Crossing, Acquisitions, LLC , 2017-Ohio-9232, --- N.E.3d ----, ¶ 10 (2d Dist.). The appointment of a receiver "aids the principal proceeding-the underlying litigation-for the receiver conserves the interests of litigants with respect to property that is in the custody of the court during the course of that principal litigation." State v. Muncie , 91 Ohio St.3d 440, 449, 746 N.E.2d 1092 (2001). "[A] receiver is necessary to protect the corporation's business and assets while these allegations are sorted out, regardless of the actual merits of either party's claims." Collins v. Collins , 8th Dist. Cuyahoga No. 87986, 2007-Ohio-283, 2007 WL 184666, ¶ 10, citing Malloy v. Malloy Color Lab., Inc. , 63 Ohio App.3d 434, 579 N.E.2d 248 (10th Dist.1989).

{¶ 18} Here, Helms's complaint asks for dissolution of the LLC, and a trial court has the authority to appoint a receiver in corporate dissolution actions, R.C. 1701.91(C). Also, the evidence here shows that the LLC has only $187.31 in cash but owes over $50,000 in property taxes. And a court may appoint a receiver when a limited-liability company "is insolvent [or] is in imminent danger of insolvency." R.C. 2735.01(A)(6). No preliminary determination of the parties' rights and interests is needed.

{¶ 19} Thomas relies on Westbrook v. Swiatek , 5th Dist. Delaware Nos. 07 CAE 09 0046, 07 CAE 11 0058, 2008-Ohio-6477, 2008 WL 5182611, and Tessler v. Ayer , 1st Dist. Hamilton Nos. C-940574, C-940632, C-940780, 1995 WL 621316 (Oct. 25, 1995). But neither of these cases supports her contention that the trial court in this case should have made a determination of parties' rights and interests before appointing a receiver. Both cases were decided under what is now R.C. 2735.01(A)(1), a different section of R.C. 2735.01(A) that allows the appointment of a receiver over property that is jointly owned.

B. The receivership order is not inconsistent with the summary-judgment decision.

{¶ 20} Thomas next argues that the order appointing the receiver is inconsistent with the trial court's summary-judgment decision. She says that the court did not decide in that decision the rights and interests of the parties but does appear to have decided these issues in the receivership order.

{¶ 21} Thomas claims she is the sole owner of the property by way of contract, implied-in-fact contract, promissory estoppel, or inter vivos gift. The trial court specifically concluded in its summary-judgment decision that genuine issues of fact remain as to each of her claims. The court concluded that "genuine issues of material fact remain as to the nature of the parties' relationship, and therefore, the Court cannot determine the purpose and, ultimately the validity of the LLC at this time." The court further said that "numerous issues remain to be determined before the Court may properly declare the LLC dissolved pursuant to RC 1705.47. The Court must, first, determine whether the LLC is a valid and enforceable entity."

{¶ 22} The appointment order here does not determine the rights and interests of the parties. As we indicated above, the appointment of a receiver is ancillary to the merits of the parties' claims. The court here appointed the receiver because it believed that a receiver is necessary to protect the LLC's assets while the parties' allegations are sorted out, "regardless of the actual merits of either party's claims," Collins , 2007-Ohio-283, 2007 WL 184666, at ¶ 10.

C. There is evidence of the need for a receiver.

{¶ 23} The trial court here determined that a receiver is needed to, among other things, preserve the value of the existing assets of the LLC. Thomas argues that the evidence does not show that a receiver is needed for this purpose. She says that there is no evidence that the property is being, or will be, wasted or that its value is declining or will decline.

{¶ 24} " 'The appointment of a receiver is the exercise of an extraordinary, drastic and sometimes harsh power which equity possesses and is only to be exercised where the failure to do so would place the petitioning party in danger of suffering irreparable loss or injury.' " Crawford v. Hawes , 2d Dist. Montgomery No. 23209, 2010-Ohio-952, 2010 WL 890520, ¶ 33, quoting Hoiles v. Watkins , 117 Ohio St. 165, 174, 157 N.E. 557 (1927). Accordingly, "[o]wing to the extreme nature of the remedy is the requirement that the movant must demonstrate the need for a receiver by clear and convincing evidence." (Citation omitted.) Id. Accord 2115-2121 Ontario Bldg., L.L.C. v. Anter , 8th Dist. Cuyahoga No. 98627, 2013-Ohio-2995, 2013 WL 3581951, ¶ 14 ("Because the appointment of a receiver is such an extraordinary remedy, the party requesting the receivership must show by clear and convincing evidence that the appointment is necessary for the preservation of the complainant's rights."). "[An] order for an interim receiver may be reviewed only for the purposes of determining whether there is evidence tending to prove the facts essential to sustain the order, and a reviewing court may not consider the weight of the evidence. Such order may be reversed only when there is failure of proof which would be essential to support the order * * *." Malloy , 63 Ohio App.3d at 436, 579 N.E.2d 248 ; Collins at ¶ 9 (quoting the same).

{¶ 25} Helms alleges, among other things, that Thomas breached fiduciary duties and misused LLC assets. And he seeks, among other things, dissolution of the LLC, injunctive relief enjoining Thomas from misappropriating LLC assets, and an accounting. Helms further alleges that Thomas moved into the house without the LLC's consent and refuses to leave. For her part, Thomas alleges that Helms breached fiduciary duties. The evidence shows that the LLC has only $187.31 in its bank account. And Thomas admits that she has been taking money from the LLC's bank account to pay personal expenses. The LLC alleges that there is not enough money to purchase homeowners' insurance for the property. And Helms and Thomas have been unable to agree to additional capital contributions so that the LLC could purchase the insurance. The LLC also does not have enough money to pay over $50,000 of property taxes and penalties due and owing. And Helms and Thomas cannot agree to additional capital contributions to cover these taxes. This raises at least the possibility that the county could foreclose on the property. The LLC says that the property could be generating income to pay for these expenses. Thomas admits that property taxes remain outstanding but asserts that this debt has no impact on the "structural value" of the property. And she says that the insurance policy on the home has been paid and is current.

{¶ 26} In light of the preceding evidence, we cannot say that the trial court abused its discretion in finding that the LLC met its evidentiary burden. The mutual allegations of Helms and Thomas-the LLC's equal members-support the court's finding of deadlock, "which ma[k]e[s] normal operation of the LLC during the pendency of these proceedings impractical, if not impossible," Collins at ¶ 10. Therefore the court reasonably determined that a receiver is needed to preserve the value of the LLC's assets.

D. The appointment of a receiver is a legal remedy.

{¶ 27} Thomas argues that appointing a receiver is not necessary because an adequate legal remedy exists to protect the LLC's interests in the form of money damages.

{¶ 28} The trial court's appointment of a receiver here is a legal remedy. The court did not appoint the receiver under the equitable catch-all provision in R.C. 2735.01(A)(7), which authorizes a court to appoint a receiver "[i]n all other cases in which receivers have been appointed by the usages of equity." Rather, the trial court appears to have acted (it does not cite a statute in the receivership order) under R.C. 1701.91(C), which allows the appointment of a receiver in corporate dissolution actions, or under R.C. 2735.01(A)(6), which allows appointment when insolvency threatens. With respect to division (A)(1) of R.C. 2735.01, it has been said that "[h]aving an available remedy at law thus does not bar the appointment of a receiver because this pertinent subsection provides a legal rather than an equitable remedy." Gemmell v. Anthony , 2016-Ohio-2686, 51 N.E.3d 663, ¶ 41 (4th Dist.), citing Victory White Metal Co. v. N.P. Motel Sys., Inc. , 7th Dist. Mahoning No. 04 MA 245, 2005-Ohio-2706, 2005 WL 1300785, ¶ 74-75 (distinguishing the general precedent that equitable relief is appropriate only if the movant demonstrates that no adequate remedy at law exists, and holding that having an adequate remedy at law did not bar the appointment of a receiver under R.C. 2735.01(A)(1) ). The same is true of R.C. 1701.91(C) and division (A)(6) of R.C. 2735.01.

{¶ 29} We note too that the presence of monetary damages might not constitute an adequate remedy because in the absence of a receiver, there might be no assets or money left for Helms to recover, if he ultimately prevails in the underlying action. The lack of insurance puts the property at risk of complete loss, and the failure to pay the property taxes puts it at risk of foreclosure. These circumstances justify the appointment of a receiver both in law and equity. Compare Gemmell at ¶ 41 (noting that "the presence of appellees' underlying monetary action would not constitute an adequate remedy because in the absence of a receiver, there might be no assets or money left for them to recover if they ultimately prevail in the underlying action"), and Victory White Metal at ¶ 75 ("The remedy at law through the contract action may only become adequate upon appointment of the receiver. * * * If no receiver is appointed, there may be no remedy left.").

E. Irreparable harm is uncertain.

{¶ 30} Thomas lastly argues that she will suffer irreparable harm if a receiver is appointed.

{¶ 31} Section 3(F) of the trial court's order here appointing the receiver relevantly states:

iii. Within thirty (30) days of the date of its appointment, and every ninety (90) days thereafter, the Receiver shall file a report on all income and expenses, all operations, and all other matters of interest, including any liabilities receipts and disbursements under seal with the Clerk of Courts and upon all interested parties herein.
iv. Within ten (10) days of the Receiver's filing, to the extent that expenses exceed income, either Plaintiff Helms or Defendant Thomas may advance funds in accordance with Section 5(D) to cover said deficit. If neither party elects to advance funds, the Receiver shall proceed to the sale of the property in accordance with Section 4.

What this means, says Thomas, is that if the property taxes are not paid, the receiver has the power to sell the property-her home. If she succeeds in proving that she owns the property, money damages may not be adequate to get her home back.

{¶ 32} Thomas's argument ignores the competing claims of Helms to the LLC's assets, as well as the separate interests of the LLC itself, in whose name the property is titled. Also, we note that under Section 3(F)(iv) of the receivership order, quoted above, Thomas could give the receiver enough money to pay the taxes. Section 5(D) provides: "Either Party may, at its sole discretion, advance funds to the Receiver for expenses of the Receivership relating to the Property and this Order. Such advances, if made, shall be returned to that Party, regardless of the outcome of the case, at the interest rate of 3% and shall be entitled to priority upon the sale of the Property or other settlement of R Boulevard LLC's assets." Finally, we note that Section 4(A)(ii) of the order states that "[a]ll sales, and contracts for sale, shall be made subject to approval by the Court."

{¶ 33} It is not certain, then, that Thomas will be irreparably harmed in the way that she claims. Ultimately, the trial court retains the power to stop the sale of the property and prevent the irreparable harm that Thomas fears.

III. Conclusion

{¶ 34} We cannot say that the trial court abused its discretion by appointing a receiver to manage the subject property. Consequently the sole assignment of error is overruled and the order appointing the receiver is affirmed.

{¶ 35} On March 22, 2018 Helms filed a motion for this court to require Thomas to post a supersedeas bond as a condition of the trial court's grant of stay pending this appeal. In light of our foregoing decision, that motion is moot and overruled.

WELBAUM, P.J. and FROELICH, J., concur.


author: Gwin, P.J.

text:
    Michael E. CHECOVICH, et al, Plaintiffs-Appellees v. James COCHRAN, et al, Defendant-Appellant
    No. 17 CA 24
    Court of Appeals of Ohio, Fifth District, Guernsey County.
    DATE OF JUDGMENT ENTRY: April 20, 2018
    C. KEITH PLUMMER, 139 West Eighth Street, P.O. Box 640, Cambridge, OH 43725-0640, For Plaintiffs-Appellees.
    MARK STUBBINS, 59 North Fourth Street, P.O. Box 488, Zanesville, OH 43702-0488, For Defendants-Appellants.
    JUDGES: Hon. W. Scott Gwin, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.
   Gwin, P.J.

{¶ 1} Appellant appeals the October 10, 2017 and October 23, 2017 judgment entries of the Guernsey Court of Common Pleas granting summary judgment to appellees.

Facts & Procedural History

{¶ 2} The real property at issue in this case was originally owned by Bedway Coal Company ("Bedway"). On July 6, 1992, Bedway transferred 47.737 acres out of the parent parcel to Bruner Land Company ("Bruner"). The transfer to Bruner was made as a result of a survey performed by Russel Neitzelt ("Neitzelt"). Two days later, on July 8, 1992, Bedway transferred 101.728 acres out of the parent parcel to Martin Yoder ("Yoder"). The transfer was made as a result of a survey performed by the same surveyor, Neitzelt. The 101.728 acre tract was divided in half and appellees Michael and Elaine Checovich own 51.536 acres of this tract. The 47.737 tract is now owned by appellant James Cochran.

{¶ 3} In the deed, Neitzelt described the property from Bedway to Bruner as being 775.46 feet from a point in the northern property line consisting of 47.73 acres. Two days later, a deed was filed in which Neitzelt described the property from Bedway to Yoder in a manner that reflected an iron pin two hundred feet shorter than the 775.46 feet described in the Bedway to Bruner deed. The two hundred foot discrepancy in the two deed descriptions means that ownership of approximately twelve acres of the real estate is disputed.

{¶ 4} On February 1, 2017, appellees Michael and Elaine Checovich and appellees John and Marcia Fuchs filed a complaint to quiet title against appellant James Cochran. In the complaint, appellees allege the Checovichs' are the owners of the real estate parcel 28-00070-002 acquired via warranty deed on August 15, 2008. Further, that appellees John and Marcia Fuchs are the owners of real estate parcel 28-00316.00 acquired via a general warranty deed on October 4, 2000. The complaint avers appellant James Cochran is the owner of real estate parcel 28-0000079.001 acquired via a quit claim deed on June 15, 2011. The complaint states the properties of the Checovichs', the Fuchs', and Cochran adjoin one another and share various boundaries.

{¶ 5} The complaint further avers that on or about August 29, 2016, Gary D. Saling ("Saling") of Spilker Surveying conducted a survey of Cochran's real estate for Cochran. Further, that on January 8, 2017, Thomas Wayne Taylor ("Taylor") of East Ohio Surveying conducted a survey of the real estate at issue for appellees. The complaint alleges the surveys are in conflict with regards to a twelve (12) acre area of land located on the eastern border of the Checovich property, the northern border of the Fuchs property, and the western border of the Cochran property.

{¶ 6} The complaint includes two causes of action, trespass and quiet title. Appellees requested the trial court quiet title of the twelve-acre parcel to them and declare them as the true and rightful owners of the twelve-acre parcel of property.

{¶ 7} Cochran filed an answer to the complaint on February 15, 2017. Cochran also filed a counterclaim, alleging trespass and quiet title claims against appellees. Cochran requested the twelve-acre parcel be transferred to him via quiet title.

{¶ 8} On September 14, 2017, Cochran filed a motion for summary judgment. He argued the court should only consider the most senior conveyance from the parent parcel in order to fix the boundary and should not consider an iron pin placed by Neitzelt, as monuments should only be relied upon when deeds have been analyzed and do not resolve the conflict. Cochran urged the court to adopt the "senior rights theory" adopted in other states, including Michigan, Kentucky, and Maryland.

{¶ 9} Appellees filed their own motion for summary judgment on September 15, 2017. Appellees also filed a memorandum contra to Cochran's motion for summary judgment on September 28, 2017. Appellees argued the Saling survey did not consider all relevant items; the monuments in this case are controlling; and the original Neitzelt survey is consistent with the rest of the surveys and with where all properties subject to this action are encompassed. Appellees also asserted that the Saling survey would place a portion of the Fuchs' home on the property of Cochran and that the Fuchs' have been living there full-time since 2000. Further, that the exhibits show there is an old road that borders the properties that was relocated consistent with the current boundaries. In addition to the Saling and Taylor surveys, attached as an exhibit to appellees' motion for summary judgment is the survey of Jack Hamilton ("Hamilton") dated July 24, 1996, that places the twelve (12) acres at issue inside the appellees' property line.

{¶ 10} On September 28, 2017, Cochran submitted a supplemental affidavit of Saling. In the affidavit, Saling states that while his survey does go through the Fuchs' property, it does not place a portion of the Fuchs home on the property of Cochran; rather, it only places a portion of the Fuchs driveway on the Cochran property. On October 5, 2017, appellees filed a notice of correction of factual statements contained in their motion for summary judgment. The notice of correction states the affidavit of Saling, "correctly stated that the Saling survey takes a portion of the Fuchs' driveway," not a portion of their home.

{¶ 11} The trial court issued an entry on October 10, 2017. The trial court found that in construing the language and legal description of the two deeds, it was unable to resolve the conflict based upon the deed descriptions themselves. The trial court found, pursuant to Kennedy v. Rose , 5th Dist. Perry No. 07-CA-00006, 2008-Ohio-3929, 2008 WL 2972642, when boundary line disputes exist between adjacent property owners and the deed descriptions do not resolve the conflict, the dispute must be resolved in accordance with the minimum standards for boundary surveys. The trial court then reviewed the minimum standards for boundary surveys provided by the Ohio State Board of Registration for Professional Engineers and Surveyors encompassed in Ohio Administrative Code Chapter 4733-37, including reviewing the physical monuments. The trial court found Neitzelt placed an iron pin at the boundary line and the pin is dispositive of the issues in the case. Further, that in his survey, Saling relied solely on the language provided in the description of the property in the Cochran deed and did not take into account any of the physical monuments.

{¶ 12} The trial court granted appellees' motion for summary judgment and denied Cochran's motion for summary judgment. The trial court ordered appellees' attorney to submit a proposed entry within fourteen days.

{¶ 13} On October 23, 2017, the trial court issued a judgment entry consistent with its October 10, 2017 entry. The trial court granted appellees' motion for summary judgment and denied Cochran's motion for summary judgment. The trial court declared the disputed twelve acres at issue to be the respective property of the Checovichs' and the Fuchs'. The trial court quieted titled of the twelve acres at issue to appellees and issued a permanent injunction in favor of appellees.

{¶ 14} Appellant Cochran appeals the judgment entry of the Guernsey County Court of Common Pleas and assigns the following as error:

{¶ 15} "I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEES MICHAEL E. CHECOVICH, ET AL., AND THEREBY QUIETING TITLE TO THE DISPUTED 12 ACRES IN FAVOR OF APPELLEES AND ISSUING A PERMANENT INJUNCTION, BASED ON A REVIEW OF THE PHYSICAL MONUMENTS, RATHER THAN ON THE PRINCIPLE OF SENIOR RIGHTS."

Summary Judgment Standard

{¶ 16} Civil Rule 56(C) provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the evidence or stipulation construed mostly strongly in the party's favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

{¶ 17} A trial court should not enter summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co. , 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc. , 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc. , 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist. 1999).

{¶ 18} When reviewing a trial court's decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc. , 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer , 90 Ohio St.3d 388, 738 N.E.2d 1243 (2000).

{¶ 19} The party moving for summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying the portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the non-moving party's claim. Dresher v. Burt , 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the burden shifts to the non-moving party to set forth specific facts demonstrating a genuine issue of material fact does exist. Id. The non-moving party may not rest upon the allegations and denials in the pleadings, but instead must submit some evidentiary materials showing a genuine dispute over material facts. Henkle v. Henkle , 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

I.

{¶ 20} In his assignment of error, appellant contends the trial court erred in granting summary judgment in favor of appellees. Appellant urges this Court to adopt the theory of "senior rights" as several courts in other states have done. Pursuant to this theory, a later or "junior" grant yields to an earlier "senior" grant. Thus, based on this principle, the Bruner deed controls in this case. Appellant further argues the deed descriptions at issue do resolve the boundary line dispute and are not in conflict. Appellees contends the trial court correctly applied the well-settled law in Ohio. We agree with appellees.

{¶ 21} In this case, we deal with a boundary dispute between adjoining landowners. As this Court has previously stated in Kennedy v. Rose , 5th Dist. Perry No. 07-CA-00006, 2008-Ohio-3929, 2008 WL 2972642, "when boundary line disputes exist between adjacent property owners and the deed descriptions do not resolve the conflict, the dispute must be resolved in accordance with the minimum standards for boundary surveys." The Ohio State Board of Registration for Professional Engineers and Surveyors has established minimum standards for boundary surveys. See Ohio Adm. Code Chapter 4733-37. Ohio Administrative Code 4733-37-01 indicates the rules adopted by the board "are intended to be the basis for all surveys relating to the establishment or retracement of property boundaries in the state of Ohio."

{¶ 22} Pursuant to Ohio Administrative Code 4733-37-02(A),

When the deed description of the subject property and the deed descriptions of adjoining properties do not resolve the unique locations of the corners and lines of the property being surveyed, the surveyor shall consult other sources of information in order to assemble the best possible set of written evidence of every corner and line of the property being surveyed. These sources include, but are not limited to: records of previous surveys, deed descriptions of adjacent properties, records of adjacent highways, railroads and public utility lines; also include subdivision plats, tax maps, topographic maps, aerial photographs, and other sources as may be appropriate.

{¶ 23} Further, Ohio Administrative Code 4733-37-02(B) states, "after all necessary written documents have been analyzed, the survey shall be based on a field investigation of the property. The surveyor shall make a thorough search for physical monuments, analyze evidence of occupation and confer with the owner(s) of the property being surveyed. In addition, the surveyor shall, when necessary, confer with the owner(s) of the adjoining property and take statements."

{¶ 24} Appellant first contends the deeds at issue are not in conflict and thus we need not look to the minimum standards as set forth in well-settled Ohio law. We disagree. The deeds at issue, filed only two days apart and made as a result of surveys from the same surveyor, described the property in a manner that resulted in a two-hundred foot discrepancy. Further, multiple surveys conducted based upon these deeds came to different conclusions as to the location of the boundary line.

Thus, we find the deeds at issue in conflict. Accordingly, the dispute must be resolved in accordance with the minimum standards for boundary surveys.

{¶ 25} As stated by the Ohio Supreme Court, "it is well settled that monuments are of prime importance in settling boundary disputes." Broadsword v. Kauer , 161 Ohio St. 524, 120 N.E.2d 111 (1954). Further, "generally, in determining boundaries, natural and permanent monuments are the most satisfactory evidence and control all other means of description, in the absence of which the following calls are resorted to, and generally in the order stated: first, natural boundaries; second, artificial marks; third, adjacent boundaries; fourth, course and distance * * *." Id.

{¶ 26} In Sellman , the Tenth District held that where a survey of a parcel of land has been made by a certified surveyor and a plat is made and duly recorded, the boundary lines determined by original monuments will "determine the boundaries of the respective lots irrespective of deviation from the course or distance as set forth in the plat." Sellman v. Schaaf , 26 Ohio App.2d 35, 269 N.E.2d 60 (3rd Dist. 1971) ; Kennedy v. Rose , 5th Dist. Perry No. 07-CA-00006, 2008-Ohio-3929, 2008 WL 2972642 (holding where a survey of a parcel of land has been made by a certified surveyor and a plat is made and duly recorded, the monuments placed or ascertained, and boundary lines established by such monuments in the survey, are thereafter controlling). "In making a resurvey it is the surveyor's duty to relocate the original lines and corners at the places actually established and not to run independent new lines, even though the original lines were full of errors." Sanders v. Webb , 85 Ohio App.3d 674, 621 N.E.2d 420 (1993).

{¶ 27} In this case, the Neitzelt survey, made by a certified surveyor, established the boundaries of the properties via an original monument, an iron pin. The parties do not dispute the iron pin was placed on the boundary line by Neitzelt or that these boundaries have been followed since Neitzelt's original survey. Thus, the boundary lines determined by the original monument, the iron pin, will determine the boundaries of the respective lots and it is the duty of a re-surveyor to relocate the original lines and corners at the places actually established and not to run independent new lines. Both the Taylor and Hamilton resurveys are in line with Ohio Administrative Code Section 4733-37-02, the well-established Ohio case law in Broadsword and Sellman , and our decision in Kennedy .

{¶ 28} Appellant argues since this Court found it was reasonable for the trial court to utilize the Harkness survey in Kennedy v. Rose , 5th Dist. Perry No. 07-CA-00006, 2008-Ohio-3929, 2008 WL 2972642, that the trial court and this Court must utilize the Saling survey in this case because it was the only survey that conforms to the "senior grant" contained in the Bruner deed. However, the Kennedy case was not decided on a "senior rights" theory in which a later or junior grant simply yields to an earlier senior grant. Rather, this Court cited to both the Broadsword and Sellman cases and affirmed the decision of the trial court because we found "the testimony of Charles Harkness established that he conducted his survey in accordance with surveying standards. Harkness researched and utilized other sources of information to determine the intent of the parties in creating the original boundary lines consistent with Ohio Adm. Code 4733-37-02. Furthermore, he relied on feasible monumentation both natural and artificial. Finally, he took into account common property usage in 1949 and the area of the property in question * * *."

{¶ 29} In this case, in his survey, Saling relied solely on the language provided in the description of the property in the Cochran deed. There is no evidence Saling took into account any of the other minimum standards for boundary surveys, including the physical monuments such as the iron pin of Neitzelt, the new road that had been established, or evidence of occupation such as the location of the Fuchs' driveway, a portion of which under his survey would be on Cochran's land. The Taylor survey sets the boundary at the iron pin found at the original corner capped by Neitzelt, as does the survey by Hamilton in 1996, and these surveys are consistent with the description of Neitzelt.

{¶ 30} Additionally, another important fact weighing in favor of appellees is that appellees were in possession of the disputed premises when this controversy arose, when this action was instituted, and they have been in possession of the disputed premises for many years; further, appellees exercised rights of ownership and performed acts of dominion on the disputed premises. The parties do not dispute that the Saling survey would place a portion of the Fuchs' driveway on the Cochran property, or that the Fuchs' have been living there full-time since 2000. Further, there is no dispute there is an old road bordering the properties that was relocated consistent with the boundaries established by the Neitzelt iron pin. See Broadsword v. Kauer , 161 Ohio St. 524, 120 N.E.2d 111 (1954) (finding the fact that the plaintiff was in possession of the real estate, exercising rights of ownership and performing acts of dominion, creates a rebuttable presumption that he was invested with some right or title in the premises).

{¶ 31} Based on the foregoing, we find the trial court did not err in granting summary judgment in favor of appellees and quieting title to the disputed twelve (12) acres in favor of appellees.

{¶ 32} The October 10, 2017 and October 23, 2017 judgment entries of the Guernsey County Court of Common Pleas are affirmed.

Baldwin, J., and Wise, Earle, J., concur