text:
    State v. Lynch
    2018-0629
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


source: Caselaw Access Project

license: Public Domain

text:
    Blisswood Village Homeowners Assn. v. Euclid Community Reinvestment, L.L.C.
    2018-0634
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Blisswood Village Homeowenrs Assn. v. Genesis Real Estate Holdings Group, L.L.C.
    2018-0633
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Blisswood Village Homeowners Assn. v. Genesis Real Estate Holdings Group, L.L.C.
    2018-0635
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Beauchamp v. Petit
    2018-0658
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Bradley
    2018-0669
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Beasley
    2014-0313
    Supreme Court of Ohio.
    July 6, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for appointment of counsel. Motion granted.

Elizabeth Arrick is appointed to represent appellant for the purpose of filing an application for reopening pursuant to S.Ct.Prac.R. 11.06.


text:
    State v. Ross
    2018-0665
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: French, J., dissents.

text:
    State v. Shumway
    2018-0670
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   French, J., dissents.


text:
    State v. Colon
    2018-0671
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Banda
    2018-0683
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: Kennedy, J., dissents.

text:
    Vannucci v. Schneider
    2018-0690
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Kennedy, J., dissents.

DeGenaro, J., not participating.


text:
    State v. Wolf
    2018-0684
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Kudla
    2018-0694
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Fischer, J., dissents and would accept the cause on proposition of law No. I.


author: DeGenaro, J., not participating.

text:
    State v. Harrison
    2018-0704
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    State v. Copley
    2018-0700
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Davis
    2018-0573
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: Fischer, J., not participating.

text:
    State v. Penland
    2018-0575
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Fischer, J., not participating.


text:
    State v. Corti
    2018-0584
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Parker v. ACE Hardware Corp.
    2018-0571
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    JP Morgan Chase Bank, N.A. v. Spears
    2018-0586
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Hill
    2018-0594
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Wilson
    2018-0579
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Dawson
    2018-0590
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State ex rel. Guest v. Husted
    2018-0889
    Supreme Court of Ohio.
    July 10, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   In Mandamus. On relator's motion to expedite case schedule. Motion granted. Respondents shall file their answers no later than Wednesday, July 11, 2018, relator shall file her merit brief and evidence no later than Monday, July 16, 2018, respondents shall file their merit briefs and evidence no later than Wednesday, July 25, 2018, and relator may file a reply brief no later than Wednesday, August 1, 2018.


text:
    Realty Income Properties 24, L.L.C. v. Delaware Cty. Bd. of Revision
    2016-1427
    Supreme Court of Ohio.
    July 9, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   At oral argument before a master commissioner on June 19, 2018, the parties in this case indicated that they have reached a settlement. Within 14 days, the parties shall file either an application for dismissal or a notice of failure of settlement.


text:
    State ex rel. Dunn v. Court of Common Pleas
    2017-1666
    Supreme Court of Ohio.
    July 9, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   Pursuant to R.C. 2710.06(B)(1), the court has been notified that the parties in this case have reached a settlement. The case is returned to the regular docket under S.Ct.Prac.R. 19.01. Within 60 days, appellant shall file an application for dismissal or file a merit brief in accordance with Supreme Court Rules of Practice. This case will be dismissed for want of prosecution if an application for dismissal or merit brief is not filed within 60 days.


text:
    State ex rel. Vonderheide v. Multi-Color Corp.
    2018-0832
    Supreme Court of Ohio.
    July 9, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    The following cases have been referred to mediation under S.Ct.Prac.R. 19.01.


text:
    State ex rel. Beyer v. Autoneum N. Am., Inc.
    2018-0833
    Supreme Court of Ohio.
    July 9, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    The following cases have been referred to mediation under S.Ct.Prac.R. 19.01.


text:
    State ex rel. Nationwide Children's Hosp. v. Indus. Comm.
    2018-0888
    Supreme Court of Ohio.
    July 9, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    The following cases have been referred to mediation under S.Ct.Prac.R. 19.01.


text:
    State ex rel. Seabolt v. State Highway Patrol Retirement Sys.
    2018-0695
    Supreme Court of Ohio.
    July 9, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    The following case has been returned to the regular docket under S.Ct.Prac.R. 19.01. The appellant shall file a brief within 40 days, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07. As provided in S.Ct.Prac.R. 16.07, the court may dismiss the case or take other action if the parties fail to timely file merit briefs.


text:
    State v. Van Hook
    1987-1159
    Supreme Court of Ohio.
    July 6, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's renewed motion for stay of execution. Appellee shall file a response, if any, to the renewed motion for stay of execution no later than 9:00 a.m. on Tuesday, July 10, 2018.


text:
    State v. Hilton
    2018-0697
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Lash.
    2018-0710
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    State v. Flenner
    2018-0732
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion denied.

Kennedy and Fischer, JJ., dissent.


text:
    State v. Ward
    2018-0612
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Bradford
    2018-0733
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State ex rel. Ellis v. Burnside
    2018-0485
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    On appellee's motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    State ex rel. Phillips v. Eppinger
    2018-0749
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Habeas Corpus. Sua sponte, cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    State v. Conley
    2018-0719
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion denied.

Kennedy and DeGenaro, JJ., dissent.


text:
    State ex rel. Staats v. Hartnett
    2018-0580
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On respondents' motions to dismiss. Motions granted. Cause dismissed. Respondent Judge Chryssa N. Hartnett's motion to find relator a vexatious litigator denied.
    O'Donnell, Kennedy, French, and DeWine, JJ., concur.
   O'Connor, C.J., and Fischer and DeGenaro, JJ., concur in granting the motion to dismiss and would grant the motion to find relator a vexatious litigator.


author: O'Donnell, J., dissents.

text:
    Helms v. Thomas
    2018-0731
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for stay relief. Motion denied.

O'Donnell, J., dissents.


text:
    State ex rel. Middlebrook v. Pureval
    2018-0597
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On respondent's motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, DeWine, and DeGenaro, JJ., concur.
   Fischer, J., not participating.


text:
    Rodriquez v. Schmenk
    2018-0657
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On respondent's reply and motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    E.C. v. Rexrode
    2018-0524
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    French, Fischer, and DeGenaro, JJ., dissent.


author: Fischer, J., dissents.

text:
    State v. Harris
    2018-0709
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion denied.

Fischer, J., dissents.


text:
    State v. Fhiaras
    2018-0396
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    Reported at 152 Ohio St.3d 1461, 2017-Ohio-1795, 97 N.E.3d 498. On motion for reconsideration. Motion denied.
   O'Donnell, J., dissents.


text:
    Jacops v. Cuyahoga Cty. Bd. of Revision
    2018-0582
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    PETITIONS TO TRANSFER
    On petition to transfer jurisdiction. Petition denied.
    Kennedy and Fischer, JJ., dissent.


text:
    State v. Van Hook
    1987-1159
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's renewed motion for stay of execution. Motion denied.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    State v. Pablo
    2018-0086
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    Reported at 152 Ohio St.3d 1464, 2018-Ohio-1795, 97 N.E.3d 500. On motion for reconsideration. Motion denied.
    O'Donnell and French, JJ., dissent.


text:
    Wynveen v. Corsaro
    2018-0198
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    Reported at 152 Ohio St.3d 1467, 2017-Ohio-1795, 97 N.E.3d 502. On motion for reconsideration. Motion denied.
   O'Donnell, J., dissents.


text:
    In re A.K.
    2018-0400
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    Reported at 152 Ohio St.3d 1468, 2018-Ohio-1795, 97 NE.3d 502. On motion for reconsideration. Motion denied.
   French, J., dissents.


text:
    State v. Wilks
    2014-1035
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    Reported at --- Ohio St.3d ----, 2018-Ohio-1562, --- N.E.3d ----. On motion for reconsideration. Motion denied.
    Lisa L. Sadler, J., of the Tenth District Court of Appeals, sitting for DeGenaro, J.


text:
    U.S. Bank Natl. Assn. v. Surrey Medwick Acquisition, L.L.C.
    2017-1819
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    Reported at 152 Ohio St.3d 1462, 2018-Ohio-1795, 97 N.E.3d 499. On motion for reconsideration. Motion denied.
   O'Donnell, J., dissents.

DeGenaro, J., dissents and would hold the cause for the decision in 2017-1377, Farmers State Bank v. Sponaugle.


text:
    State v. Patterson
    2018-0103
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    Reported at 152 Ohio St.3d 1465, 2018-Ohio-1795, 97 N.E.3d 501. On motion for reconsideration. Motion denied.


text:
    HDV Cleveland, L.L.C. v. Ohio Liquor Control Comm.
    2018-0114
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    Reported at 152 Ohio St.3d 1465, 2018-Ohio-1795, 97 N.E.3d 501. On motion for reconsideration. Motion denied.
    French and DeGenaro, JJ., dissent.
   W. Scott Gwin, J., of the Fifth District Court of Appeals, sitting for O'Donnell, J.


text:
    In re T.W.
    2018-0297
    Supreme Court of Ohio.
    July 11, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    Reported at 152 Ohio St.3d 1482, 2017-Ohio-1990, 98 N.E.3d 295. On motion for reconsideration. Motion denied.
    Kennedy, French, and DeGenaro, JJ., dissent.


author: CYNTHIA WESTCOTT RICE, P.J.

text:
    Edward F. GEMBARSKI, on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. PARTSSOURCE, INC., Defendant-Appellant.
    NO. 2016-P-0077
    Court of Appeals of Ohio, Eleventh District, Portage County.
    Decided December 11, 2017
    Thomas J. Connick, Connick Law, LLC, 25550 Chagrin Blvd., # 101, Beachwood, OH 44122 (For Plaintiff-Appellee).
    Jeffrey J. Wedel, Stephen S. Zashin, and Helena Oroz, Zashin & Rich Co., L.P.A., Ernst & Young Tower, 950 Main Avenue, 4th Floor, Cleveland, OH 44113 (For Defendant-Appellant).
   CYNTHIA WESTCOTT RICE, P.J.

{¶ 1} Appellant, PartsSource, Inc., appeals from the judgment of the Portage County Court of Common Pleas, granting a motion to certify class action filed by appellee, Edward F. Gembarski. At issue is whether a class defined as all current and former employees who earned commissions from the sales of medical equipment and whose earned commissions were subject to rescission if the accounts were not paid within a ninety-day period satisfies the requirements of Civ.R. 23 for certification. We affirm the trial court's judgment.

{¶ 2} On October 1, 2012, appellee filed a class-action complaint for damages against appellee in the Summit County Court of Common Pleas. Appellee filed an answer and the case was transferred to the Portage County Court of Common Pleas by stipulation of the parties. On September 22, 2015, appellee filed a motion to certify class action and a motion to modify/amend class definition. Appellee opposed the motion. On March 31, 2016, the motion to modify/amend class definition was granted On May 2, 2016, appellant filed a brief in opposition to appellee's motion to certify class action and, on June 23, 2016, a class certification hearing was held before the magistrate.

{¶ 3} On September 30, 2016, the magistrate issued findings of fact and conclusions of law. The following are taken from the magistrate's findings:

{¶ 4} "Mr. Gembarski was an Account Representative, i.e., salesman, who sold medical replacement parts. PartsSource is in the business of selling medical equipment replacement parts.

{¶ 5} "Mr. Gembarski was paid by commission only. He did not receive a salary.

{¶ 6} "There were allegedly at least 75 persons who were in the same position as Mr. Gembarski and earned their commissions in the same manner he did. Other employees have placed that number, to their knowledge, at anywhere between 45-65.

{¶ 7} "Commissions are allegedly earned when a part is sold and then delivered to a customer, and then paid to the Account Manager within 30 days therefrom on the next commission statement. Then, that money actually went into the Account Manager's paycheck and allegedly became their personal property.

{¶ 8} "PartsSource allegedly took back the commissions allegedly earned by Plaintiff and the putative class, and that money has never been returned. And this same alleged wrongful taking of the alleged earned commissions happened to Mr. Gembarski as well as approximately 75-120 other Account Managers. Mr. Gembarski has personal knowledge of the list of Account Managers PartsSource regularly sent out advising that they were having their commissions pulled, and whose complaints were exactly the same as Mr. Gembarski's.

{¶ 9} The court certified the class and defined the same as follows: "All current and/or former PartsSource, Inc. Account Managers and/or employees who are or ever have been subject to Defendant PartsSource, Inc.'s policy and wrongful practice of reducing, withholding or deducting, i.e. taking back or 'pulling' earned commissions on sales of medical equipment and/or supplies."

{¶ 10} Appellant filed objections to the magistrate's decision, which were opposed by appellee. Ultimately, the trial court overruled appellant's objections and adopted the magistrate's decision. Appellant now appeals and assigns three errors for our review. Its first assignment of error provides:

{¶ 11} "The trial court abused its discretion by adopting the magistrate's findings, which adopted appellee's proposed findings verbatim, over appellant's objection where the record does not contain competent and credible evidence supporting those findings."

{¶ 12} "A trial court must conduct a rigorous analysis when determining whether to certify a class pursuant to Civ.R. 23 and may grant certification only after finding that all of the requirements of the rule are satisfied; the analysis requires the court to resolve factual disputes relative to each requirement and to find, based upon those determinations, other relevant facts and the applicable legal standard, that the requirement is met." Cullen v. State Farm Mut. Auto. Ins. Co. , 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, paragraph one of the syllabus.

{¶ 13} The Ohio Supreme Court has identified seven prerequisites for maintaining a class action derived from Civ.R. 23 :

{¶ 14} "(1) an identifiable class must exist and the definition of the class must be unambiguous; (2) the named representatives must be members of the class; (3) the class must be so numerous that joinder of all members is impracticable; (4) there must be questions of law or fact common to the class; (5) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; (6) the representative parties must fairly and adequately protect the interests of the class; and (7) one of the three Civ.R. 23(B) requirements must be met." Hamilton v. Ohio Savings Bank , 82 Ohio St.3d 67, 71, 694 N.E.2d 442 (1998).

{¶ 15} Moreover, " Civ.R. 23(B)(3) states that in order to certify a class in an action for damages, two findings must be made by the trial court. First, it must find that questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and second, the court must find that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." In re Consol. Mgte. Satisfaction Cases , 97 Ohio St.3d 465, 2002-Ohio-6720, 780 N.E.2d 556, ¶ 7. "A party seeking certification pursuant to Civ.R. 23 bears the burden of demonstrating by a preponderance of the evidence that the proposed class meets each of the requirements set forth in the rule. Cullen , supra , at paragraph three of the syllabus.

{¶ 16} "A trial judge has broad discretion in determining whether a class action may be maintained and that determination will not be disturbed absent an abuse of discretion." Marks v. C.P.Chem. Co., Inc. , 31 Ohio St.3d 200, 509 N.E.2d 1249 (1987), syllabus. The abuse of discretion standard "applies to the ultimate decision of the trial court, * * * as well as to its determination regarding each requirement of the rule." Cullen , supra , at ¶ 19. Nevertheless, as in a general civil case, where "the burden of persuasion is only by a preponderance of the evidence, * * * evidence must still exist on each element (sufficiency) and the evidence on each element must satisfy the burden of persuasion (weight)." Id. at ¶ 19, citing Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19.

{¶ 17} Under its first assignment of error, appellant contends the trial court erred by adopting, verbatim, appellee's proposed findings of fact and conclusions of law, despite the submission being "replete with verbatim errors, misstated testimony, and other inaccuracies." Appellant incorporates by reference its "forty-two objections, filed with the trial court on October 4, 2016," but, "in interest of brevity," provides illustrative examples of errors in the magistrate's decision.

{¶ 18} First, appellant challenges the magistrate's finding that appellee seeks certification "of a class of Account Managers who sold medical equipment and/or parts for Defendant PartsSource," and, in a footnote, observed that "Account Managers, Sales Representatives and Customer Service Representatives are used, at times, interchangeably herein." Appellant counters that, at the certification hearing, appellee testified that the proposed class included account managers, senior account managers, and strategic account managers, but not product managers. Appellant also notes that Charles Koch, its Chief Administrative Officer, testified that different categories of employees were compensated differently so that the titles were not interchangeable.

{¶ 19} We find the objection fails to identify a recognizable error. The class certified by the trial court includes any of appellant's employees who received commissions from the sale of medical equipment and/or supplies and who were subject to an allegedly improper policy of having earned commissions rescinded. Membership in the class does not depend on job title, responsibilities, or overall compensation package. Moreover, Koch testified by deposition that there were a variety of titles that were applied to salespersons who were, nonetheless, paid by commission.

{¶ 20} Appellant next asserts the magistrate erred when it found that appellee was employed with it through 2011 when, in fact, he was employed through 2012. Appellant acknowledges that the trial court recognized this objection as valid and corrected the error, but counters that if the court had conducted a thorough review of the Magistrate's Decision before adopting it, there would have been no need to raise an objection.

{¶ 21} Appellant also maintains the magistrate erred when it identified appellee as an Account Representative, not acknowledging that he held other positions and/or titles during his employment with it.

{¶ 22} These objections are inconsequential to the ultimate issue of class certification. As such, any error is harmless as a matter of law.

{¶ 23} Next, appellant argues the magistrate erred in finding that at least 75 persons "were in the same position as Mr. Gembarski and earned their commissions in the same manner he did." Appellant counters that appellee testified that he only had personal knowledge of six other employees' compensation plans and, therefore, speculated about the actual number.

{¶ 24} We discern no error in the foregoing. The magistrate's finding fairly reflects appellee's testimony, which was based on complaints he heard from approximately 50 or 60 other salespersons ("100 percent" of them) who had commissions "pulled back." The magistrate also cited the deposition testimony of Daniel Brenner, the Director of Customer Implementation for appellant, who estimated that there were between 45 and 65 persons who sell medical parts for commission at any given time. Koch in his deposition testimony referred to "140 or so sales reps" who had received reduced commissions over a number of years. The magistrate's finding is therefore adequately supported by the record.

{¶ 25} Appellant next contends the magistrate's finding that a salesperson's "money actually went into the Account Manager's paycheck and allegedly became their personal property" is based only on appellee's opinion. We do not agree.

{¶ 26} The magistrate properly conditioned the status of the money that went into a salesperson's paycheck by the use of the qualifying adverb "allegedly." That such money became the salesperson's personal property was not only Gembarski's opinion, but that of Brenner and Koch as well. The point at which a commission is actually earned is, of course, one of the ultimate factual issues to be decided in this case. For the purpose of class certification, the magistrate is not deciding the ultimate issues of the case, but merely describing appellee's theory of recovery. Such analysis is expressly sanctioned by the Ohio Supreme Court. See Stammco, L.L.C. v. United Tel. Co. of Ohio , 136 Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, syllabus. ("At the certification stage in a class-action lawsuit, a trial court must undertake a rigorous analysis, which may include probing the underlying merits of the plaintiff's claim, but only for the purpose of determining whether the plaintiff has satisfied the prerequisites of Civ.R. 23.")

{¶ 27} With respect to appellant's remaining 37 objections, we decline to consider them as they have not been properly raised before this court. "Parties cannot simply incorporate by reference arguments they made to the trial court in their appellate brief." Deutsche Bank Natl. Trust Co. v. Taylor , 9th Dist. Summit No. 28069, 2016-Ohio-7090, 2016 WL 5724200, ¶ 14, fn. 1, citing App.R. 16(A)(7) ("[t]he appellant shall include in its brief * * * [a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review") and App.R. 12(A)(2) ("[t]he court may disregard an assignment of error presented for review if the party raising it * * * fails to argue the assignment separately in the brief, as required under App.R. 16(A)"); see also Kulikowski v. State Farm Mut. Ins. Co. , 8th Dist. Cuyahoga No. 80103, 2002-Ohio-5460, 2002 WL 31260599, ("the Rules of Appellate Procedure do not permit parties to 'incorporate by reference' arguments from other sources.")

{¶ 28} Appellant's first assignment of error lacks merit.

{¶ 29} For its second assignment of error, appellant asserts:

{¶ 30} "The trial court abused its discretion in adopting the magistrate's finding of fact and conclusion of law which by improperly engaging in a merits based inquiry, certifying a proposed class that is unascertainable and ordering PartsSource to ascertain the putative class members."

{¶ 31} "An identifiable class must exist before certification is permissible" and "[t]he definition of the class must be unambiguous." Warner v. Waste Mgt., Inc. , 36 Ohio St.3d 91, 521 N.E.2d 1091 (1988), paragraph two of the syllabus. "[T]he requirement that there be a class will not be deemed satisfied unless the description of it is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member." (Citation omitted.) Hamilton , supra , at 71-72, 694 N.E.2d 442. "Thus, the class definition must be precise enough 'to permit identification within a reasonable effort.' " Id. at 72, 694 N.E.2d 442, quoting Warner , supra , at 96, 521 N.E.2d 1091.

{¶ 32} The magistrate deemed the identifiable class requirement satisfied as the "[c]lass definition identifies all Account Managers who have been subject to the taking back or pulling of alleged earned commissions" and appellant "is able to determine the identity of all Account Managers who had their alleged earned commissions pulled from them."

{¶ 33} Appellant maintains that the defined class is improper because it is conclusory, i.e., it presumes that its "policy or practice" was "wrongful" or even "illegal" and that the retained commissions had been "earned." Appellant further challenges the ascertainability of the class on the grounds that its business records are inadequate to determine which salespersons are members of the class: "While [appellant] can identify employees who earned commissions, as well as employees who had commissions pulled, its business records do not, and could not, show the alleged exposure to any alleged wrongful conduct." We do not agree.

{¶ 34} As noted above, the defining characteristic of the proposed class is that it includes salespersons who have had commissions withheld, regardless of whether, ultimately, the commissions were withheld rightfully or wrongfully. The defined class is not conclusory but properly fixed according to a neutral criterion, i.e., appellant's policy of withholding commissions. Hamilton , supra , at 73, 694 N.E.2d 442 ("where possible [the class] should be defined upon the basis of the manner in which the defendant acted toward an ascertainable group of persons." (Citation omitted.)

{¶ 35} It is important to note that there was evidence before the magistrate that appellant's policy was a uniform policy and, thus, a suitable criterion for defining the class. Jeffrey Dalton, appellant's Chief Operating Officer, testified as follows by deposition:

{¶ 36} Q. The policy of PartsSource to, as [the job description] says, "to reduce the commissions earned" in that paragraph, the policy of PartsSource to reduce the commissions earned for amounts on a[n] invoice that are not collected within 90 days, that is applied uniformly, is it not, to all account managers and sales representatives who sell medical parts on a commission basis?

{¶ 37} A. Yes.

{¶ 38} * * *

{¶ 39} Q. This over 90 policy was instituted unilaterally by PartsSource, correct?

{¶ 40} A. Correct.

{¶ 41} Q. You understand what I mean by the term "unilaterally?"

{¶ 42} A. All account managers.

{¶ 43} Q. Well, that's uniformly. But yeah, it's all account managers.

{¶ 44} Similar testimony was given by Brenner, the Director of Customer Implementation:

{¶ 45} Q. And you said, and I'm quoting you, if the customer does not pay within 90 days you will lose the commission on that sale.

{¶ 46} A. Yes.

{¶ 47} Q. And that's the commission you earned from the previous month or whatever month before * * *[,] correct?

{¶ 48} A. Yes. Yeah, that's-I think you worded that correctly. It sounds right. Yeah.

{¶ 49} Q. And that was a policy across the board for all sales representatives who sold on commission, correct?

{¶ 50} A. As far as I know, yes.

{¶ 51} Appellant also argues that being subject to the withholding policy is not a definite criterion because some commissions were ultimately reinstated to the salespersons, depending on a variety of circumstances in which the customer ultimately paid the invoice. This, plus the fact that different employees had different compensation plans, requires "the trial court to resolve the merits of every putative class member's claim before determining whether the person is a class member."

{¶ 52} These considerations, which more properly apply to the element of commonality, do not compromise the identifiability of the class. "The mere existence of different facts associated with the various members of a proposed class is not by itself a bar to certification of that class." Consol. Mgte. Satisfaction Cases, supra, at ¶ 10 ; see also Hamilton , supra , at 81-82, 694 N.E.2d 442 (" 'a trial court should not dispose of a class certification solely on the basis of disparate damages,' "

particularly "where * * * damages may be calculated by a mathematical formula") (citation omitted); Rimedio v. SummaCare, Inc. , 9th Dist. Summit No. 21828, 2004-Ohio-4971, 2004 WL 2244099, ¶ 21 (affirming the certification of a class comprising all SummaCare providers subject to a ten percent withhold of service fees despite the fact that "some of the physicians were solo practicioners, while some were working for partnerships" and "not all of the physicians signed their contracts at the same time [whereas] some knew of the withholds before signing, while others did not.")

{¶ 53} Finally, appellant contends the magistrate relied on impermissible evidence, i.e., "Disc A," a "spreadsheet that [appellant] produced in response to a discovery response in August 2013 * * * reflect[ing] only commission amounts during a limited period of time that the Company did not reimburse, without any indication of whether customers ultimately paid on those transactions." (Emphasis sic.) Appellant contends that Disc A cannot show whether salespersons who had "earned commissions" rescinded actually received "appropriate reimbursement under the terms of their specific compensation plans" and that appellee impermissibly raised Disc A as evidence in his reply brief in support of class certification.

{¶ 54} We see nothing impermissible about the magistrate's consideration of Disc A. Contrary to appellant's characterization, appellee's use of Disc A is not a "new argument" but evidence duly produced during discovery and introduced into evidence as an attachment to the reply brief prior to the certification hearing, the contents of which were thoroughly discussed in Koch's deposition testimony. The magistrate properly described the contents of Disc A as "the identities of well over one hundred (100) Account Managers who have had their alleged earned commissions pulled and whose money has not been returned to them." There was no claim that Disc A resolved issues of damages or ultimate liability.

{¶ 55} Appellant's second assignment of error lacks merit.

{¶ 56} Appellant's third assignment of error provides:

{¶ 57} "The trial court abused its discretion in summarily concluding that appellee satisfied Civ.R. 23's seven prerequisites, where the record does not contain competent and credible evidence supporting that conclusion, and where such conclusion is against the manifest weight of the evidence."

{¶ 58} Under its third assignment of error, appellant contends that appellee failed to satisfy Civ.R. 23's remaining prerequisites for class certification. As noted above, the prerequisites are (1) identifiability (which we have previously determined to be adequate); (2) class membership (which, again, we have concluded was met); (3) numerosity; (4) commonality; (5) typicality; (6) adequacy of representation; and (7) one of the three Civ.R. 23(B) requirements must be met. Hamilton , supra.

{¶ 59} With respect to numerosity, appellant claims "Gembarski has never proffered any evidence-based indication of the number of people in the proposed class." For purposes of certification, it is sufficient that the evidence discussed above supports the finding of a class of at least 75 persons. While the "courts have not specified numerical limits for the size of a class action * * * '[i]f the class has more than forty people in it, numerosity is satisfied.' " (Citation omitted.) Warner , supra , at 97, 521 N.E.2d 1091 ; see also Maas v. The Penn Cent. Corp. , 11th Dist. Trumbull No. 2006-T-0067, 2007-Ohio-2055, 2007 WL 1241336, ¶ 53 ("generally, if a proposed class consists of more than forty individuals, numerosity is met.")

{¶ 60} With respect to commonality, appellant contends that appellee's "claims are not susceptible to class-wide determinations." On the contrary, we agree with the magistrate that all class claims arise from "the same nucleus of operative facts surrounding the alleged wrongful withholding, and refusal to return, of alleged earned commissions." That appellant engaged in the alleged conduct is undisputed and constitutes a common nucleus of fact similar to all salespersons affected by it. "Courts generally have given a permissive application to the commonality requirement," construing it "to require a 'common nucleus of operative facts.' " Warner , supra , at paragraph three of the syllabus.

{¶ 61} With respect to typicality, appellant contends appellee's complaint proposed a class of persons subject to "the plan" whereas the class as certified comprises persons subject to a purported "policy and wrongful practice." Appellant, however, cites no authority for the proposition that the certified class must conform to the class proposed in the complaint. Rather, the Ohio Supreme Court has itself on several occasions directed the modification of the class definition to fit the circumstances of the case. See e.g. Warner , supra , at 99, 521 N.E.2d 1091 ("[o]n remand, we direct the trial court to modify the scope of the class, consider the creation of subclasses in this action, bifurcate trials on liability issues, and exclude the individual defendants-appellants from this action until they are given a proper certification hearing."); Baughman v. State Farm Mut. Auto. Ins. Co. , 88 Ohio St.3d 480, 484, 727 N.E.2d 1265 (2000) ("the definition of the class that appellants seek to have certified is hereby modified" to reflect the factual record.)

{¶ 62} Appellant additionally contends that appellee fails to satisfy the typicality and the adequacy requirements because he is "only one of three employees who did not sign an arbitration agreement." Appellant relies on the Ninth Appellate District's decision in Rimedio , supra , where the court held the typicality requirement was not met where the sole class representative had waived his right to arbitration and approximately half of the putative class was subject to arbitration.

{¶ 63} In this case, appellant did not assert the arbitration defense in its answer to the complaint and, indeed, did not assert the defense until after mediation failed and appellee filed his motion for class certification. The magistrate determined that appellant had waived the defense because, after three years of litigation and having notice of the matters at issue in the class action, not the least of which was class certification, it never asserted, let alone sought to pursue, arbitration. The magistrate found appellant's dereliction was manifestly inconsistent with its right to arbitrate and/or assert that right as a defense to the class certification. Under the circumstances, the magistrate's conclusion was not an abuse of discretion.

{¶ 64} The right to arbitrate can be waived. EMCC Inv. Ventures, LLC v. Rowe , 11th Dist. Portage No. 2011-P-0053, 2012-Ohio-4462, 2012 WL 4481332, ¶ 33. " 'When the defendant [files] its answer in [a] suit without demanding arbitration, it, in effect, [agrees] to the waiver.' " Hoffman v. Davidson, 11th Dist. Trumbull No. 3909, 1988 WL 32967, *2 (Mar. 11, 1988), quoting Mills v. Jaguar-Cleveland Motors, Inc., 69 Ohio App.2d 111, 113, 430 N.E.2d 965 (8th Dist.1980). In Hogan v. Cincinnati Fin. Corp., 11th Dist. Trumbull No. 2003-T-0034, 2004-Ohio-3331, 2004 WL 1433605, this court stated:

{¶ 65} "To prove waiver, the opposing party merely needs to show: (1) that the party waiving the right knew of the existing right of arbitration and (2) that the party acted inconsistently with that right. * * * 'Active participation in a lawsuit * * * evidencing an acquiescence to proceeding in a judicial rather than arbitration forum has been found to support a finding of waiver.' Griffith [v. Linton, 130 Ohio App.3d 746, 751, 721 N.E.2d 146 (10th Dist.1998) ]." Hogan , supra , at ¶ 23-24.

{¶ 66} Appellant was aware of its right to assert the arbitration defense from the inception of the underlying class action. After all, a class action cannot proceed without certification of a class and, in his complaint, appellee specified the details, including appellant's alleged misconduct and harm suffered by potential class members, that would be used to qualify the potential putative class members for certification. Although appellee was not a party to the arbitration provision, an issue going to typicality and adequacy, appellant had notice that other potential class members who suffered from the harm alleged in the complaint would be bound by the arbitration clause. We maintain appellant's failure to assert the arbitration defense in its answer, or a supplement thereto, or seek to enforce the right to arbitration at some point prior to its opposition to the certification was fundamentally inconsistent with its right to assert the defense. We therefore conclude the magistrate was not unreasonable in concluding appellant waived the arbitration defense to the typicality and adequacy elements of class certification. Accordingly, we hold the trial court did not abuse its discretion in adopting the magistrate's decision.

{¶ 67} Because we hold the trial court was correct in concluding the arbitration defense was waived, we additionally conclude the typicality requirement was met. To wit, we discern no express conflict between appellee and other class members. See Marks v. C.P. Chemical Co., Inc. 31 Ohio St.3d 200, 202, 509 N.E.2d 1249 (1987). And the allegations arose from a common nucleus of operative facts; namely, appellant's taking account managers' alleged earned commissions and failing to return those commissions to the employees. Similarly, appellee meets the adequacy requirement to the extent his interests are not antagonistic to the other class members. Id. at 203, 509 N.E.2d 1249. In effect, appellee can fairly and adequately protect the interests of the class. Id.

{¶ 68} Finally, appellant contends appellee failed to meet the predominance/superiority requirements of Civ.R. 23. Civ.R. 23(B)(3) states a class action may be maintained if:

{¶ 69} "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

{¶ 70} "(a) the class members' interests in individually controlling the prosecution or defense of separate actions;

{¶ 71} "(b) the extent and nature of any litigation concerning the controversy already begun by or against class members;

{¶ 72} "(c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

{¶ 73} "(d) the likely difficulties in managing a class action."

{¶ 74} Here, the magistrate determined the differences in individual class-member's contracts, as well as potential statute-of-limitations problems with individual claims, were insufficient to undermine the conclusion that there were adequate questions of law and/or fact that predominate the class as a whole. The magistrate further determined the class action was superior to other methods of fair and efficient adjudication of the controversy because (1) no other person within the putative class expressed an interest in separately prosecuting the allegations in this matter; (2) appellee is the only current or former employee to have commenced suit relating to the alleged wrongdoing; (3) appellee sought out the forum in which the case was being prosecuted, without objection, thereby suggesting the concentration of the litigation was desirable; and (4) there would be no significant difficulty in managing the class action because each class member has a claim arising from the same nucleus of operative facts and legal theories-"all of which can be resolved in a single stroke under the class action mechanism." The foregoing findings are reasonable and, as a result, the trial court did not abuse its discretion in adopting the magistrate's decision certifying the class.

{¶ 75} Appellant's final assignment of error is without merit.

{¶ 76} For the reasons discussed in this opinion, the judgment of the Portage County Court of Common Pleas is affirmed.

COLLEEN MARY O'TOOLE, J., concurs with a Concurring Opinion,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

COLLEEN MARY O'TOOLE, J., concurs with a Concurring Opinion.

{¶ 77} I concur with the majority's well-reasoned decision. I write separately simply to point out that the issue of whether appellee satisfies the typicality and adequacy requirements for certifying a class action, since he was not party to an arbitration agreement with appellant, whereas other members of the proposed class were, has been foreclosed by the May 26, 2017 decision in Natl. Labor Relations Bd. v. Alternative Entertainment, Inc. , 858 F.3d 393 (6th Cir.2017), which appellee filed with this court as supplemental authority. In that case, the NLRB sought enforcement of its decision and order regarding James DeCommer, a former technician for Alternative Entertainment, Inc. Id. at 396. DeCommer's employment agreement specifically contained both an arbitration clause, and a waiver of the right to seek relief by way of class action. Id. at 397. In relevant part, the Sixth Circuit found this waiver of DeCommer's right to pursue a class action for employment based relief violated the National Labor Relations Act. Id. at 400-408,. The Sixth Circuit recognized its decision complied with prior decisions by the Seventh and Ninth Circuits, but conflicted with the position taken by the Fifth and Eighth Circuits. Id. at 401.

{¶ 78} Applying Alternative Entertainment, Inc. to this case effectively negates any argument that the arbitration clauses in the balance of the contracts of the proposed class members mean they cannot pursue a class action. Thus, appellee is typical of the class, and adequately represents it, even though he was not subject to arbitration.

{¶ 79} While the Sixth Circuit's decision is not controlling over this court, it is highly persuasive. I think it would be unwise to set up a conflict between the Ohio courts and the federal courts on this issue. That would merely encourage forum shopping.

{¶ 80} I respectfully concur.

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

{¶ 81} I respectfully dissent. The law is well-settled that a named plaintiff fails to satisfy the typicality/adequacy requirement of Civil Rule 23(A)(3) where the members of the putative class he or she seeks to represent are subject to an arbitration agreement to which the named plaintiff is not subject. Rimedio v. SummaCare, Inc. , 9th Dist. Summit No. 21828, 2004-Ohio-4971, 2004 WL 2244099, ¶ 25-27 ; Rimmer v. Citifinancial, Inc. , 2013-Ohio-5732, 6 N.E.3d 621, ¶ 22-25 (8th Dist.) ; also Tan v. Grubhub, Inc. , N.D.Cal. No. 15-cv-05128-JSC, 2016 WL 4721439, *3 (July 19, 2016) (cases cited).

{¶ 82} Gembarski, in contrast to the class he proposes to represent, is not subject to an arbitration agreement. Accordingly, he does not satisfy the typicality/adequacy requirement.

{¶ 83} The majority, however, adopts the lower court's unreasonable position that PartsSource "waived the arbitration defense to the typicality and adequacy elements of class certification." It is difficult to fathom how this is so given that PartsSource raised the issue of arbitration in its Brief in Opposition to Plaintiff's Motion to Modify/Amend Class Definition. The majority concludes, nonetheless, that PartsSource "was aware of its right to assert the arbitration defense from the inception of the underlying class action" and, therefore, its "failure to assert the arbitration defense in its answer, or a supplement thereto, or seek to enforce the right to arbitration at some point prior to its opposition to the certification was fundamentally inconsistent with its right to assert the defense." Supra at ¶66.

{¶ 84} The majority is incorrect to assert that PartsSource should have raised the defense in its answer or "a supplement thereto." The present action was filed by Gembarski as the only proposed class representative. Unlike a majority of the proposed and unnamed class members, Gembarski was not and had never been subject to an arbitration agreement. There is no rational justification for why PartsSource should have raised the defense of binding arbitration at this point in the litigation against a party who is not subject to arbitration. Compare Smith v. Bayer Corp. , 564 U.S. 299, 313, 131 S.Ct. 2368, 180 L.Ed.2d 341 (2011) (it would be a "novel and surely erroneous argument [to suggest] that a nonnamed class member is a party to the class-action litigation before the class is certified ") (citation omitted).

{¶ 85} Preliminarily, it should be noted that, on account of Ohio's "strong public policy in favor of arbitration," the party asserting waiver bears a "heavy burden of proving waiver" which should not be lightly inferred. (Citation omitted.) U.S. Bank Natl. Assn. v. Allen , 2016-Ohio-2766, 52 N.E.3d 1237, ¶ 14 (3d Dist.). To find waiver, the courts generally require that the party possessing the right to arbitrate act inconsistently with that right. EMCC Invest.Ventures, LLC v. Rowe , 11th Dist. Portage No. 2011-P-0053, 2012-Ohio-4462, 2012 WL 4481332, ¶ 34.

{¶ 86} PartsSource has not acted inconsistently with its right to arbitrate. In its Answer, PartsSource denied that Gembarski's action could be maintained as a class action, specifically denying that Gembarski's claims were typical of the proposed class and that he could fairly and adequately protect the class. It would have been premature for PartsSource to plead affirmative defenses that had no relevance to Gembarski's claims, such as the right to arbitrate, considering that Gembarski, as a non-party to the arbitration agreements, could neither have compelled or been compelled to arbitrate. In any event, PartsSource did expressly reserve "the right to plead additional defenses as discovery reveals such defenses to be available."

Morris v. Morris , 189 Ohio App.3d 608, 2010-Ohio-4750, 939 N.E.2d 928, ¶ 32 (10th Dist.) ("an arbitration defense, pursuant to R.C. 2711.02, is not an affirmative defense under Civ.R. 8(C)," and "is not mandated by Civ.R. 8(C) to avoid waiver"); Rimedio , 2004-Ohio-4971, at ¶ 14 ("[a]ppellants could not have waived the right to assert the arbitration clause against the unnamed class members").

{¶ 87} The majority's position is anomalous because the specific issue before the trial court was Gembarski's suitability as a class representative, not whether PartsSource could have potentially raised the arbitration defense against hitherto putative class members.

{¶ 88} This anomaly has been recognized by federal courts addressing similar situations, holding that a proposed class representative lacks standing to even raise the issue of waiver with respect to putative class members. "[F]undamentally, the named plaintiffs lack standing to assert any rights the unnamed putative class members might have to preclude [a defendant] from moving to compel arbitration because the named plaintiffs have no cognizable stake in the outcome of that question." In re Checking Account Overdraft Litigation , 780 F.3d 1031, 1039 (11th Cir.2015).

Absent class certification, there is no justiciable controversy between [a defendant] and the unnamed putative class members. Furthermore, because the unnamed putative class members are not yet before the court, any claims that they might have against [a defendant] necessarily exist only by hypothesis. In the absence of both live claims and cognizable plaintiffs, the District Court's pronouncement purporting to definitively foreclose the arbitration of the hypothetical claims that might be raised in the future by hypothetical plaintiffs cannot be regarded as anything but an impermissible "advisory opinion[ ] on [an] abstract proposition[ ] of law." Hall [v. Beals ], 396 U.S. [45,] 48, 90 S.Ct. [200,] 202 [24 L.Ed.2d 214 (1969) ].

Id. at 1037 ; Conde v. Open Door Marketing, LLC , 223 F.Supp.3d 949, 960 (N.D.Cal.2017) ("[p]laintiffs are not personally affected by the arbitration agreements at issue because they have not signed agreements that contain similar terms," and "therefore have no interest in the enforceability of the arbitration agreement itself, and lack the ability to challenge the agreements on behalf of individuals who did sign such agreements"); Tan , 2016 WL 4721439, at *6 (the named plaintiff "has no standing to challenge the applicability or enforceability of the arbitration and class action waiver provisions * * * because, in light of his decision to opt out, they do not apply to him") (cases cited).

{¶ 89} Contrary to the position of the concurring judge, Natl. Labor Relations Bd. v. Alternative Entertainment, Inc. , 858 F.3d 393 (6th Cir.2017), does not foreclose the issue of whether Gembarski satisfies the typicality and adequacy requirements for class certification. That case held "that an arbitration provision requiring employees covered by the NLRA individually to arbitrate all employment-related claims is not enforceable." Id. at 408. Not only has Gembarski not signed an arbitration agreement, but the arbitration agreements signed by the unnamed putative plaintiffs did not contain provisions requiring that employment-related claims be arbitrated individually. The relevance of Alternative Entertainment is difficult to discern. In any case, by applying the majority's logic, it could be argued that, if the arbitration agreements to which Gembarski was not a party did contain such provisions, PartsSource has waived the right to enforce these hypothetical provisions by not raising the issue in its answer or supplement thereto. With or without class action waiver clauses, Gembarski does not satisfy the typicality and adequacy requirements.

{¶ 90} For the foregoing reasons, I respectfully dissent and would reverse the decision of the court below.

      He attested: "I don't know exactly what [title] we use today, but we started with, we called it a customer sales rep or representative, CSR. As the company grew, it became obvious that the title was a little confusing to our customers, so we made a change to account manager. We may even have senior account managers. It just provided a more significant title for that position as people like Ed [Gembarski], whatever, interacted with our customers.

      Dalton disputed the assertion that the withholding policy was instituted unilaterally.

      "Class actions are governed by Ohio Civ.R. 23. Given the similarity between the rules, federal case law interpreting F.R.C.P. 23 is persuasive when interpreting the Ohio rule." West v. Carfax, Inc. , 11th Dist. Trumbull No. 2008-T-0045, 2009-Ohio-6857, 2009 WL 5064143, ¶ 10.


author: THOMAS R. WRIGHT, J.

text:
    Carol J. ALLEN, a.k.a Carly Allen, Plaintiff-Appellant, v. 5125 PENO, LLC, d.b.a. El Jalapeno, et al., Defendant-Appellee.
    NO. 2016-T-0120
    Court of Appeals of Ohio, Eleventh District, Trumbull County.
    Decided December 11, 2017
    Ilan Wexler, Anzellotti, Sperling, Pazol & Small Co., L.P.A., 21 North Wickliffe Circle, Youngstown, OH 44515, and Richard L. Goodman, Richard L. Goodman Co., L.P.A., 720 Youngstown-Warren Road, Suite E, Niles, OH 44446 (For Plaintiff-Appellant).
    Kirk E. Roman, 50 South Main Street, Suite 502, Akron, OH 44308 (For Defendant-Appellee).
   THOMAS R. WRIGHT, J.

{¶ 1} Appellant, Carol J. Allen, appeals the trial court's decision granting summary judgment in favor of appellee, 5125 Peno, LLC ("Peno"). We affirm.

{¶ 2} In January of 2013, Allen was a patron at appellee's Mexican-style restaurant.

After entering the restaurant and upon walking toward her family's table, Allen slipped and fell on a "grimy, greasy" spot on the floor sustaining injuries. Allen filed suit in January 2015 alleging the restaurant's owner, Peno, was negligent. Following discovery, the trial court granted Peno's motion for summary judgment.

{¶ 3} Allen asserts two assigned errors, which we address collectively:

{¶ 4} "The trial erred in granting summary judgment in favor of Defendant-Appellee, 5125 Peno LLC ('El Jalapeno'), by failing to construe the evidence most strongly in favor of the nonmoving party, Plaintiff-Appellant Carly Allen ('Carly Allen'), when it found that Carly Allen 'failed to prove that Defendant was responsible for the grease on the floor or had any actual or constructive notice of any alleged danger associated with the floor where she slipped.' (T.d. 25, paras. 2, 6, and 7).

{¶ 5} "The trial court erred by granting summary judgment in favor of Defendant-Appellee, 5125 Peno, LLC ('El Jalepeno') if the trial court based its decision in any way upon its finding that Plaintiff-Appellant, Carly Allen ('Carly Allen'), was in any way unable to articulate exactly what caused her fall.' (T.d. 25, paragraphs 2, 4, and 7)."

{¶ 6} Appellate courts review decisions awarding summary judgment de novo. Northeast Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs. , 121 Ohio App.3d 188, 191, 699 N.E.2d 534 (8th Dist.1997). We review the trial court's decision independently and without deference, pursuant to the standards in Civ.R. 56(C). Brown v. Scioto Cty. Bd. of Commrs. , 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Summary judgment is appropriate when (1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion adverse to the nonmoving party. Holliman v. Allstate Ins. Co. , 86 Ohio St.3d 414, 415, 715 N.E.2d 532 (1999). The initial burden is on the moving party to set forth specific facts demonstrating that no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant meets this burden, the burden shifts to the nonmoving party to establish that a genuine issue of material fact exists for trial. Id.

{¶ 7} A "material fact" for summary judgment depends on the type of the claim being litigated. Hoyt, Inc. v. Gordon & Assocs., Inc. , 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995), citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

{¶ 8} In order to establish actionable negligence, a plaintiff must prove the existence of a legal duty, the defendant's breach of that duty, and injury proximately caused by the defendant's breach. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22 (2002).

{¶ 9} Allen was a business invitee at the time she fell. As a business invitee, Peno owed Allen a duty of "ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger. * * * A shopkeeper is not, however, an insurer of the customer's safety." (Citations omitted.) Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203-204, 480 N.E.2d 474 (1985).

{¶ 10} A storeowner has a duty to exercise ordinary care and to protect customers by maintaining the premises in a safe condition. This duty includes warning invitees of latent defects of which it has actual or constructive knowledge. Kornowski v. Chester Props., Inc., 11th Dist. Geauga No. 99-G-2221, 2000 WL 895594. *3 (June 30, 2000) ; Brymer v. Giant Eagle, Inc., 11th Dist. Lake No. 2010-L-134, 2011-Ohio-4022, 2011 WL 3558115, ¶ 10.

{¶ 11} When a business invitee slips and falls as a result of a foreign substance on the floor of a business, the plaintiff has the burden to prove one of three conditions to recover:

{¶ 12} "(a) that the defendant or his agent was responsible for the substance being on the floor; (b) that the defendant knew of the substance on the floor and failed to remove it; or (c) that the substance was on the floor for a long enough period of time so that the defendant should have known about it and removed it. Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 589, 49 N.E.2d 925 ; Orndorff v. Aldi, Inc. (1996), 115 Ohio App.3d 632, 635-36, 685 N.E.2d 1298. See, also, Parras v. Standard Oil Co. (1953), 160 Ohio St. 315, 317, 116 N.E.2d 300." Phares v. Midway Mall Dev. Corp. , 9th Dist. Lorain No. 97CA006814, 1998 WL 208826, *2 ; Brymer , supra , at ¶ 14.

{¶ 13} Here, Allen alleges that Peno is liable because it either created the hazard on the floor or should have known of the hazard and either warned of the danger or remedied it.

{¶ 14} Allen testified to the following:

{¶ 15} "Q. Was there any reason you were in a hurry at the time to get to the table or to eat at all?

{¶ 16} "A. No.

{¶ 17} "Q. Was there anything blocking or obstructing your view of the floor as you walked to the area where you fell?

{¶ 18} "A. No.

{¶ 19} "Q. I mean other people?

{¶ 20} "A. No.

{¶ 21} "Q. Employees or anything like that?

{¶ 22} "A. No.

{¶ 23} "Q. What caused you to fall?

{¶ 24} "A. I believe it was grease of some sort.

{¶ 25} "Q. Do you know?

{¶ 26} "A. Exactly what it was, no. But when I fell, I turned around to see what was on the floor, and I remember doing this with my hands * * *

{¶ 27} "Q. Touching the floor?

{¶ 28} "A. Touching the floor.

{¶ 29} "Q. The tile?

{¶ 30} "A. The tile. It was tile, and I remember it was grimy, greasy.

{¶ 31} "Q. Can you give me an idea at all what the area was in size of this grimy greasy substance which you felt with your hand after you fell?

{¶ 32} "A. * * * I would say 10, 12 inches.

{¶ 33} "Q. Like a 10 or 12 inch circle?

{¶ 34} "A. Yes.

{¶ 35} "Q. Did it have any type of color?

{¶ 36} "A. No.

{¶ 37} "Q. Do you know the substance that you believe caused you to fall, do you know how it got there?

{¶ 38} "A. No, I don't know how it got there.

{¶ 39} "Q. Do you know who caused it or what caused it to get there?

{¶ 40} "A. I don't know anything for sure.

{¶ 41} "Q. Do you know how long it was on the floor where you fell before you fell, this grimy greasy substance?

{¶ 42} "A. No; no."

{¶ 43} Allen's daughter, Ashley Mokros, states in her affidavit that she visited the restaurant on two occasions in the year before her mother's fall and on both prior visits Mokros observed the floors to be greasy and filmy. She does not identify the area in the restaurant that she previously encountered greasy and filmy floors.

{¶ 44} Further, Allen's daughter-in-law, Taylor Rupeka, states in her affidavit that she visited the restaurant on several occasions and that she had slipped two to three times on the floor. She states: "I have previously been a customer of the restaurant of Defendant and have slipped on the surface of the floor between 2 and 3 times prior to Carly [Allen] falling. The floor was not wet but just felt slippery." Rupeka does not give a date or time period when she experienced these slippery floors and does not indicate which part of the restaurant she was in when she slipped.

{¶ 45} Pablo Martinez, the restaurant manager, testified that employees sweep and mop the floor with bleach every morning before opening. Martinez also confirmed that the restaurant always keeps a yellow "wet floor" sign displayed on the floor near the entrance to alert customers of a potentially slippery floor. It is unclear whether Martinez was present when Allen fell.

{¶ 46} We disagree with Allen's argument that she presented evidence that Peno or his agents created the hazard. Contrary to Allen's argument, Martinez did not testify that grease spatters all over the restaurant when fajitas are served. To the contrary, Martinez explained that the restaurant cooks the fajita meat in butter, which does not splatter:

{¶ 47} "Q. How do you cook the meat for the fajitas?

{¶ 48} "A. The grill. You cook the meat first.

{¶ 49} "Q. In a pot? * * *

{¶ 50} "A. No, it's a big grill, like I was talking about * * *.

{¶ 51} " * * *

{¶ 52} "Q. You have to use oil in order to cook the meat a little bit so it doesn't stick?

{¶ 53} "A. Not oil. It's like butter, because oil is like-I don't know. What is it called when you drop the oil?

{¶ 54} "Q. It spatters?

{¶ 55} "A. Spatters all over.

{¶ 56} "Q. The butter spatters?

{¶ 57} "A. Butter doesn't. It cooks perfectly and better taste. Better flavor too."

{¶ 58} Although Allen established that the restaurant serves fajitas, a popular dish, on a hot platter, she surmises but does not present evidence that Peno was responsible for the slippery spot causing her fall. This theory requires inference stacking, which is insufficient to defeat summary judgment. Hughes v. Kroger Co. , 12th Dist. Clermont No. CA2005-10-099, 2006-Ohio-879, 2006 WL 456817, ¶ 7. " '[N]egligence is a fact necessary to be shown; it will not be presumed.' Boles v. Montgomery Ward & Co. (1950), 153 Ohio St. 381, 388, 92 N.E.2d 9. A negligence claim based on conjecture, speculation, or the stacking of inference upon inference cannot succeed. Id." Id.

{¶ 59} Allen likewise failed to come forward with evidence that Peno had constructive notice of the spot on the floor.

{¶ 60} " '[C]onstructive notice requires proof by direct or circumstantial evidence that the store in the exercise of ordinary care had or should have had notice of the condition or foreign substance because of the length of time of its presence on the floor.' Catanzano v. [The Kroger Company , 1st Dist. Hamilton No. C-930761, 1995 WL 8956] at *6, citing Presley v. Norwood (1973), 36 Ohio St.2d 29, 31, 303 N.E.2d 81 ; Hardgrove v. Isaly Dairy Co. (1942), 139 Ohio St. 641, 41 N.E.2d 862 ; J.C. Penny Co. v. Robison (1934), 128 Ohio St. 626, 193 N.E. 401. To demonstrate plaintiff had constructive notice, plaintiff must show that the 'danger had existed for a sufficient length of time reasonable to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care.' [Final National ] Finast Supermarkets at *3. ' "The standard for determining sufficient time to enable the exercise of ordinary care requires evidence of how long the hazard existed." ' Hudspath v. Cafaro Co., 11th Dist. No.2004-A-0073, 2005-Ohio-6911, 2005 WL 3528896, ¶ 10, quoting Combs [v. First National Supermarkets, Inc. , 105 Ohio App.3d 27,] at 30, 663 N.E.2d 669 (8th Dist.1995), citing Anaple v. The Standard Oil Co. (1955), 162 Ohio St. 537, 541, 124 N.E.2d 128." Brymer v. Giant Eagle, Inc., 11th Dist. Lake No. 2010-L-134, 2011-Ohio-4022, 2011 WL 3558115, ¶ 19-20.

{¶ 61} Allen avers based on her experience and her daughter and daughter-in-law's testimony that the floor was perpetually greasy so as to put Peno on constructive notice. However, neither Rupeka nor Mokros described the area in the restaurant where they had previously encountered slippery or greasy floors, and neither identified the slipperiness that they encountered as the same greasy grimy 10 to 12 inch area that caused Allen to slip and fall. Allen testified that she did not know how long the substance had been on the floor before she fell.

{¶ 62} Moreover, she fell upon entering the dining room just beyond the entryway to the restaurant and the hostess' station. And Martinez testified that this area and all the floors in the restaurant are mopped with bleach daily.

{¶ 63} The facts presented in Mokros' and Rupeka's affidavits are too indefinite as to time and location and are insufficiently connected to the night in question to establish that Peno had constructive notice of the greasy spot on which Allen slipped and fell in January 2013 to enable us to conclude that the danger Allen encountered "had existed for a sufficient length of time reasonable to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care." ' " (Citations omitted.) Brymer, supra. There is no evidence as to how long the greasy spot had been on the floor that night before Allen encountered it and fell. The fact that other individuals encountered slippery floors in the restaurant the year before Allen's fall does not establish a want of ordinary care by Peno on the night Allen fell.

{¶ 64} "The record contains no evidence as to how long the [substance] existed on the tile floor before appellant fell. Such evidence is necessary to support an inference that appellees breached a duty of ordinary care to invitees, and the absence of such evidence is fatal to appellant's claim. See McDowell v. Target Corp., Franklin App. No. 04AP-408, 2004-Ohio-7196, 2004 WL 3090182 (affirming summary judgment for premises owner in slip-and-fall case where there was no evidence that the slippery condition was present long enough that defendants should have known about it)." Caravella v. W.-WHI Columbus Northwest Partners , 10th Dist. Franklin No. 05AP-499, 2005-Ohio-6762, 2005 WL 3484604, ¶ 25.

{¶ 65} We agree with the trial court's decision. As the moving party, Peno satisfied its initial burden of identifying the portions of the record demonstrating the absence of a genuine issue of fact on Allen's negligence claims. While Allen produced evidence that she slipped on a greasy grimy substance on the floor of the restaurant, she did not come forward with evidence that the restaurant caused the greasy substance to be on the floor or that it had actual or constructive notice of the substance prior to her fall.

{¶ 66} Accordingly, Allen failed to carry the reciprocal burden setting forth specific facts demonstrating a genuine issue for trial. The trial court properly rendered judgment for Peno, and the trial court's decision is affirmed.

CYNTHIA WESTCOTT RICE., P.J.,

TIMOTHY P. CANNON, J.,

concur.

      While Martinez testified that the restaurant always maintains a yellow "wet floor" sign near the hostess station, and Allen does not dispute the presence of the sign the night she fell, neither party raises the issue of the sign or whether it was adequate to warn Allen. Thus, we do not address.


text:
    STATE of Ohio, Plaintiff-Appellee, v. Douglas M. MAYLE, Jr., Defendant-Appellant.
    NO. 2017-A-0005
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    Decided December 11, 2017
    Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).
    Richard Tadd Pinkston, 103 Fifth Street, S.E., Suite L, Barberton, OH 44203 (For Defendant-Appellant).
   THOMAS R. WRIGHT, J.

{¶ 1} Appellant, Douglas M. Mayle, Jr., appeals revocation of his community control sanctions and imposition of a thirty-month prison term on his conviction for attempted felonious assault. He challenges the trial court's acceptance of his admission to the community control violation and his sentence. We affirm.

{¶ 2} In July 2014, appellant was indicted on one count of felonious assault, a second-degree felony under R.C. 2903.11(A)(1), based upon an allegation that appellant threw a kitchen chair that hit his girlfriend in the chest, injuring her sternum.

{¶ 3} Ultimately, appellant entered an Alford guilty plea to an amended charge of attempted felonious assault, a third-degree felony. The trial court accepted the plea and found appellant guilty.

{¶ 4} A sentencing hearing was later scheduled and held. Speaking on his own behalf, appellant claimed he never intended any harm. He also informed that he was experiencing serious health problems, including liver failure. After appellant's statement, the prosecutor agreed incarceration was not appropriate. The trial court sentenced appellant to two years of community control, placing him on intensive supervision. The court informed appellant that he would be subject to a thirty-month prison term if he violated community control sanctions.

{¶ 5} Approximately fifteen months later, the trial court issued a capias for appellant's arrest on the grounds that he repeatedly violated the terms of community control. Appellant was apprehended and confined in the county jail. His probation officer filed a "violation" complaint, alleging failure to report for over six months.

{¶ 6} A probable cause hearing on the alleged violation was held. After the trial court explained the purpose of a probable cause hearing, appellant stated that he did not wish to challenge the allegation. He asserted that he was not receiving proper medical care in the county jail, and that he needed to be transferred to a state penitentiary as soon as possible to obtain adequate care. Thereafter, appellant consulted off the record with his counsel, who then informed that his client waives the probable cause and final hearing, and enters an admission on the violation.

{¶ 7} After the trial court accepted the admission, appellant's counsel requested a shorter prison term than the thirty-month term referenced when community control sanctions were imposed. While acknowledging that appellant had taken some steps to change his behavior, the trial court imposed a thirty-month prison term finding appellant no longer amenable to community control sanctions, and that a prison term was necessary to satisfy the overriding purposes and principles of felony sentencing.

{¶ 8} Appellant appeals raising:

{¶ 9} "[1.] The trial court erred when it accepted a de facto Alford guilty plea from [appellant] without following the proper procedure laid out in State v. Piacella , 27 Ohio St.2d 92, 271 N.E.2d 852 (1971).

{¶ 10} "[2.] The trial court erred in failing to notify [appellant] that an admission of violating community control at his probable cause hearing would trigger a thirty-month prison sentence under R.C. 2929.15 and R.C. 2929.19 and additionally by failing to refer to R.C. 2929.11 and R.C. 2929.12 at sentencing."

{¶ 11} Under his first assignment, appellant maintains the trial court erred when it accepted his admission. He contends that his admission should be likened to a guilty plea under North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and that his admission should not have been accepted because his sole motive in admitting the violation was to immediately obtain adequate health care at a state prison, not to avoid a jury trial or to obtain a shorter prison term.

{¶ 12} The state argues that Alford is inapplicable and that Crim.R. 32.3 controls.

{¶ 13} Alford applies in limited circumstances to guilty pleas to original charges in an indictment or complaint. We decline to extend it to community control violation hearings. There is ample precedent for the proposition that the rules governing guilty pleas, such as Crim.R. 11(C)(2), do not apply to community control revocation hearings.

{¶ 14} "At the outset we would note that, ' "A community control revocation hearing is not a criminal trial[.]" ' State v. Parsons , 4th Dist. Athens No. 09CA4, 2009-Ohio-7068 [2009 WL 5247440], ¶ 11, quoting State v. Belcher , 4th Dist. Lawrence No. 06CA32, 2007-Ohio-4256 [2007 WL 2356030], at ¶ 12. For that reason, a 'defendant faced with revocation of probation or parole is not afforded the full panoply of rights given to a defendant in a criminal prosecution.' State v. Alexander , 1st Dist. Hamilton No. C-070021, 2007-Ohio-5457 [2007 WL 2965356], at ¶ 7 ; State v. Orr , 11th Dist. Geauga No. 2008-G-2861, 2009-Ohio-5515 [2009 WL 3335343], at ¶ 21 ; State v. Malone , 6th Dist. Lucas No. L-03-1299, 2004-Ohio-5246 [2004 WL 2334162], at ¶ 13-14. More specifically, 'the requirements of Crim.R. 11(C)(2) do not apply to a community-control-violation hearing.' Alexander at ¶ 7 ; Orr at ¶ 21." State v. Brown , 3rd Dist. Logan No. 8-14-04, 2015-Ohio-468 [2015 WL 509668], ¶ 13.

{¶ 15} Revocation of community control is governed by Crim.R. 32.3, providing in part:

{¶ 16} "(A) Hearing. The court shall not impose a prison term for violation of the conditions of a community control sanction or revoke probation except after a hearing at which the defendant shall be present and apprised of the grounds on which action is proposed. The defendant may be admitted for bail pending hearing.

{¶ 17} "(B) Counsel. The defendant shall have the right to be represented by retained counsel and shall be so advised. Where a defendant convicted of a serious offense is unable to obtain counsel, counsel shall be assigned to represent the defendant, unless the defendant after being fully advised of his or her right to assigned counsel, knowingly, intelligently, and voluntarily waives the right to counsel. Where a defendant convicted of a petty offense is unable to obtain counsel, the court may assign counsel to represent the defendant."

{¶ 18} In Brown , supra , the defendant maintained that, as part of the community control revocation hearing, the trial court was obligated to inform him of any potential consequences of admitting a community control violation, and of his right to confront and cross-examine witnesses as mandated under Crim.R. 11. This argument was rejected on the basis that Crim.R. 32.3 does not contain any language requiring such: " Criminal Rule 32.3(A) merely requires a trial court to (1) hold a hearing, (2) where the defendant is present, (3) and apprised of the grounds on which action is proposed. None of the Crim.R. 11(C)(2) requirements are contained within the rule." Brown , 2015-Ohio-486, 28 N.E.3d 81, at ¶ 15 ; State v. Orr , 11th Dist. Geauga No. 2008-G-2861, 2009-Ohio-5515, 2009 WL 3335343. See, also , State v. Patton , 8th Dist. Cuyahoga No. 103737, 2016-Ohio-4867, 68 N.E.3d 273 ; State v. Mullins , 12th Dist. Butler Nos. CA2011-10-195, 2012-Ohio-5005, 2012 WL 5306048 ; State v. Johnson , 6th Dist. Lucas No. L-09-1218, 2010-Ohio-1887, 2010 WL 1730150.

{¶ 19} Without addressing differences between the procedural rules governing pleas and community control revocation hearings, appellant argues applying Alford to community control revocation hearings would be consistent with the Ohio Supreme Court's trend to eliminate informality in such proceedings. In support, he cites: State v. Jackson , 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, holding that, after a finding of a violation has been made, the defendant must be afforded an opportunity for allocution before community control sanctions are terminated and a prison term is imposed; State v. Heinz , 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965, holding that, since the state is a party to a community control revocation hearing, the prosecutor is entitled to proper notice of the proceeding and must be given an opportunity to be heard and; State v. Fraley , 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, holding that, if a defendant's community control sanctions are not terminated as a result of his first violation, the trial court is required to give him notice of the length of the prison term that could be imposed in the event of a second violation.

{¶ 20} Both Jackson and Fraley pertain solely to afforded rights following a determination that a violation was committed. While Heinz characterized a community control revocation hearing as formal and adversarial, it did so in the context of deciding that the state is entitled to fully participate. To this extent, none of the cited opinions support an extension of Alford to community control revocation hearings.

{¶ 21} Before accepting appellant's admission and imposing sentence, the trial court held a hearing, appellant was represented and present, and he was advised of the alleged violation. Crim.R. 32.3 was fully satisfied. His first assignment is without merit.

{¶ 22} Under his second assignment, appellant challenges his prison term. He first argues that the trial court should not have accepted his admission without first informing that he could be sentenced to thirty months, citing Fraley supra.

{¶ 23} Fraley , however, holds that in order for a trial court to impose a prison term for a violation of community control sanctions, it was required to have informed the defendant at the original sentencing hearing or the sentencing hearing held in relation to a prior sanctions violation, of the potential sentence for a future violation. Fraley , 2004-Ohio-7110, 821 N.E.2d 995, at ¶ 18-19. Fraley does not require the trial court to repeat the potential prison term during the violation proceeding resulting in the imposition of a prison term.

{¶ 24} As part of the discussion required before accepting an original guilty plea, the trial court must inform a defendant of the maximum potential penalty. See Crim.R. 11(C)(2)(a). But, as noted, Crim.R. 11(C) does not apply to a revocation proceeding. The trial court simply had no duty to again inform appellant of the potential prison term before accepting his admission or entering sentence.

{¶ 25} Appellant separately asserts that the trial court erred in failing to consider the general purposes and principles of sentencing, R.C. 2929.11, and the sentencing factors for seriousness and recidivism, R.C. 2929.12.

{¶ 26} Before sentencing appellant to prison, the trial court referenced "the overriding purposes and principles of sentencing" without specifically mentioning R.C. 2929.11 or R.C. 2929.12. Furthermore, the sentencing judgment does not reference either statute. That the trial court did not expressly reference the two statutes is not outcome determinative:

{¶ 27} "[W]e have also stated that R.C. 2929.11 and 2929.12 delineate specific factors which a trial court is required to consider as a general guide for imposing a sentence. [ State v. Kirkpatrick , 11th Dist. Trumbull No. 2010-T-0025, 2010-Ohio-6578, 2010 WL 5622074,] at ¶ 41. However, in satisfying this obligation, the trial court does not have a corresponding duty to divulge its analysis of the various factors:

{¶ 28} " 'It is well-settled that R.C. 2929.12 does not require a sentencing court to discuss the statutory criteria on the record or even to state on the record that it has considered them. State v. Chapdelain , 11th Dist. Lake No. 2009-L-166, 2010-Ohio-2683 [2010 WL 2349199], at ¶ 14. In fact, the Court in Kalish noted that where a sentencing court does not memorialize on the record that it considered the factors, a presumption arises that the factors were properly considered. [ Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 2008 WL 4444005], at ¶ 27, f.n. 4. "By implication, as long as there is some indication that the factors were considered, a reviewing court is bound to uphold the sentence." Chapdelaine , supra. ' Id. at ¶ 42.

{¶ 29} "See, also, State v. Tenney , 11th Dist. Ashtabula No. 2009-A-0015, 2010-Ohio-6248, 2010 WL 5289110, at ¶ 14, in which this court concluded that a silent record raises a presumption that the relevant statutory factors were duly considered before the sentencing determination was made." State v. Vargo , 11th Dist. Portage No. 2010-P-0065, 2011-Ohio-6690, 2011 WL 6888685, ¶ 22-24. See, also , State v. Bisson , 11th Dist. Portage No. 2012-P-0050, 2013-Ohio-2141, 2013 WL 2308150.

{¶ 30} The presumption is unrebutted. Appellant had a significant criminal record, including convictions for trafficking in drugs, possession of drugs, assault, domestic violence, theft, forgery, and receiving stolen property. He had also served at least four previous prison terms of six months or more.

{¶ 31} Appellant's sentence is not clearly and convincingly contrary to law. R.C. 2953.08(G)(2). As a result, his second assignment also lacks merit.

{¶ 32} The judgment of the Ashtabula County Court of Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, P.J.,

DIANE V. GRENDELL, J.,

concur.