author: KLATT, J.

text:
    CITY OF TOLEDO, Appellee v. CORRECTIONS COMMISSION OF NORTHWEST OHIO, et al., Appellants
    No. L-16-1155
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: December 20, 2017
    Andy Douglas, Adam W. Loukx, Law Director, and John T. Madigan, Toledo, Senior Attorney, for appellee.
    Marc A. Fishel, Columbus, and Melanie Williamson, Washington, for appellants Corrections Commission of Northwest Ohio and the Boards of Commissioners of Defiance County, Fulton County, Henry County, and Williams County.
    Fritz Byers, Toledo, for appellant Lucas County Board of Commissioners.
    Julia R. Bates, Lucas County Prosecuting Attorney, John A. Borell, Kevin A. Pituch, and Evy M. Jarrett, Assistant Prosecuting Attorneys, Toledo, for appellant Lucas County Sheriff John Tharp.
    Melissa M. Purpura, Director of Law, City of Oregon, for amicus curiae city of Oregon.
    Beth A. Tischler, Director of Law, City of Maumee, for amicus curiae city of Maumee.
    Leslie B. Brinning, Director of Law, City of Sylvania, for amicus curiae city of Sylvania.
    Gallon, Takacs, Boissoneault & Schaffer, Co., LPA, and John M. Roca, Toledo, for amici curae International Union of Police Associations, AFL-CIO, CCNO Supervisors Association Local 53, CCNO Corrections Officers Association Local 64 and CCNO Case Managers Association Local 79.
    DECISION AND JUDGMENT
   KLATT, J.

{¶ 1} Defendants-appellants, the Corrections Commission of Northwest Ohio ("Commission"), the Lucas County Board of Commissioners ("Board"), the Lucas County Sheriff ("Sheriff"), and the Boards of Commissioners of Defiance County, Fulton County, Henry County, and Williams County, appeal a judgment entered by the Lucas County Court of Common Pleas in favor of plaintiff-appellee, the City of Toledo. For the following reasons, we affirm that judgment.

{¶ 2} Toledo is the largest municipal corporation within Lucas County, Ohio. Toledo does not own or operate any type of detention facility. Individuals arrested in Toledo, who are denied bail or who are unable to make bail, are confined to the Lucas County Corrections Center ("LCCC"). The Sheriff operates the LCCC and has charge of all individuals confined in it. See R.C. 341.01 ("The sheriff shall have charge of the county jail and all persons confined therein.").

{¶ 3} Generally, if an individual is convicted of a misdemeanor offense by a court located in Toledo, that individual serves any jail sentence imposed at the Corrections Center of Northwest Ohio ("CCNO"). CCNO is the product of agreements between Defiance County, Fulton County, Henry County, Lucas County, Williams County, and the City of Toledo to construct and operate a multicounty-municipal correctional center. CCNO has operated under successive organizational and operational agreements since 1988. In 2011, the five member counties and Toledo entered into the Fourth Amended and Restated Organizational and Operational Agreement for the Corrections Commission of Northwest Ohio's Multicounty-Municipal Correctional Center ("Fourth Agreement").

{¶ 4} Under the Fourth Agreement, the Commission was tasked with the management, maintenance, operation, occupation, repair, and administration of CCNO. The Commission consisted of the sheriff and one member of the board of commissioners from each member county, and the Toledo chief of police and mayor. The Fourth Agreement required the Commission to appoint an executive director, who was in charge of CCNO.

{¶ 5} As mandated by the Fourth Agreement and CCNO's fiscal agent, each member had to remit its share of CCNO's annual operating and capital costs on a quarterly basis. The amount owed by each member depended on the number of beds reserved by the member. Toledo reserved 228 beds, or 35.65 percent of the available beds. Thus, Toledo owed 35.65 percent of CCNO's annual operating and capital costs. Lucas County, which reserved 203 beds, owed 31.84 percent of the annual operating and capital costs.

{¶ 6} The Fourth Agreement permitted the Commission to rent unused beds to members and non-members. The Commission charged a per diem rate for the rental of beds. If a member's unused beds were rented, that member received a credit based on its percentage of total unused bed space available on a monthly basis. The Commission entered that credit on the member's quarterly invoices as an off-set against the member's proportional share of the operating and capital costs.

{¶ 7} Finally, the Fourth Agreement provided that it could be "modified, amended or supplemented in any respect not prohibited by law upon the approval of the modification, amendment or supplement by a two-thirds roll call vote of the Commission representatives and by the governing bodies of at least two-thirds (2/3) of the Members." (Commission's Ex. F, Fourth Agreement, Section 10.) Once approved, the modification, amendment, or supplement would become binding on the Commission and all members.

{¶ 8} In 1998, CCNO's executive director codified the billing rules CCNO used. However, neither the billing rules nor the successive organizational and operational agreements addressed how to divide between Lucas County and Toledo the cost of housing prisoners sentenced to a jail term by a court located in Toledo. In practice, offenders convicted in the Toledo Municipal Court filled beds Toledo paid for, while offenders convicted in the Lucas County Court of Common Pleas filled beds Lucas County paid for. Toledo challenged this practice in 2014.

{¶ 9} Toledo's challenge began because, on October 15, 2014, Toledo's mayor directed the Toledo Police Department to stop charging alleged offenders under the Toledo ordinances if a comparable Revised Code offense existed. This directive constituted a sea change, as the Toledo Police Department had previously charged misdemeanors mostly under Toledo's ordinances. After mandating this change, Toledo's mayor initiated a campaign to alter CCNO's billing practices. Toledo's mayor urged CCNO's executive director to charge Lucas County with the cost of housing all prisoners convicted of a violation of the Revised Code, regardless of which Toledo-based court sentenced the prisoner. Under the rule proposed by Toledo's mayor, Toledo would only have the responsibility of providing for those few prisoners convicted of violating ordinances for which there was no Revised Code equivalent.

{¶ 10} The executive director capitulated. On October 27, 2014, the executive director adopted the rule that, "[i]f the City of Toledo issues a criminal complaint under the Ohio Revised Code versus [the] Toledo Municipal Code[,] that charge is billed to Lucas County." (Commission's Ex. K, CCNO Ohio Billing Rules, Rule 13.) CCNO then began assigning beds based on the type of offense (i.e., an ordinance violation versus a state law violation), instead of the sentencing court (i.e., Toledo Municipal Court versus Lucas County Court of Common Pleas).

{¶ 11} As a result of the rule change, offenders who had once filled Toledo beds began occupying Lucas County beds instead. Lucas County soon developed a need for more beds than the 203 beds that it had reserved. Toledo, on the other hand, had numerous empty beds. CCNO began billing Lucas County thousands of dollars, in addition to its proportional share of costs, for the rental of extra beds. At the same time, CCNO issued credits to Toledo for the rental of its empty beds to Lucas County.

{¶ 12} Lucas County resisted this cost transfer. At that time, an ad hoc committee was drafting the Fifth Amended and Restated Organizational and Operational Agreement for the Corrections Commission of Northwest Ohio's Multicounty-Municipal Correction Center ("Fifth Agreement"). As a result of Lucas County's efforts, the committee added to the draft a section stating:

All Members which are a municipal corporation and operate a municipal court established in Section 1901.02 of the Ohio Revised Code bear the fiscal responsibility for the costs of incarceration of inmates/prisoners originating out of the jurisdiction of their municipal court, regardless of the criminal code for which the prisoner is held or sentenced.

(Commission's Ex. S, Fifth Agreement, Section 7(L).) This section was intended to reimpose on Toledo the obligation to pay the costs for all prisoners sentenced by the Toledo Municipal Court, no matter what the nature of the offense charged.

{¶ 13} At the Commission's May 27, 2015 meeting, the Commission adopted the Fifth Agreement. With the exception of one abstention, all of the five counties' representatives voted in favor of the Fifth Agreement. Toledo's mayor and chief of police cast the only dissenting votes. Subsequently, the boards of commissioners of the five member counties approved the Fifth Agreement. Toledo refused to approve the Fifth Agreement, and its director of finance did not certify that Toledo possessed, or was in the process of collecting, the amount required to meet Toledo's financial obligations under the Fifth Agreement.

{¶ 14} On December 7, 2015, Toledo filed an action against the Commission; the Boards of Commissioners of Defiance County, Fulton County, Henry County, Lucas County, and Williams County; and the Sheriff. Along with other claims, Toledo sought declaratory judgments stating that: (1) Lucas County was responsible for the costs of housing state prisoners, regardless of what authority committed the arrest and what Toledo-based court imposed the sentence, and (2) the Fifth Agreement was not binding on Toledo. The Commission and each of the named Boards of Commissioners filed counterclaims against Toledo.

{¶ 15} The trial court ordered the parties to brief the issues raised by Toledo's claims for declaratory judgment. In its briefing, Toledo argued that it only had a statutory obligation to pay for housing individuals charged and convicted of violations of Toledo's ordinances. Toledo maintained that Lucas County was responsible for the costs of incarcerating those charged and convicted of state law misdemeanors. In response, the Board and Sheriff asserted that the statutory duty to pay for housing prisoners turned on the court that adjudicated the prisoners' cases, not the type of offense. The Board and Sheriff thus contended that Toledo had to pay to house those prisoners under the jurisdiction of the Toledo Municipal Court, while Lucas County had the responsibility to pay for housing prisoners under the jurisdiction of the Lucas County Court of Common Pleas.

{¶ 16} As to its second claim, Toledo argued that it was bound by the Fourth Agreement, but not the Fifth Agreement.

The Commission asserted that Toledo was obligated to perform under the Fifth Agreement, even though Toledo neither adopted it nor certified the availability of funds to meet the payment terms contained in it.

{¶ 17} In a judgment issued June 27, 2016, the trial court granted Toledo summary judgment on each of its claims. The trial court declared that, "where a municipal police department arrests, detains and charges an individual pursuant to a violation of state law, it is the county who is financially responsible for the incarceration of that individual and the accompanying costs associated therewith." (June 27, 2016 Order at 5.) The trial court also declared that the Fifth Agreement did not bind Toledo, and instead, the Fourth Agreement delineated Toledo's contractual rights and responsibilities.

{¶ 18} The Commission, Board, and Sheriff appealed the June 27, 2016 judgment. On appeal, the Commission assigns the following errors:

[1.] The Lucas County Court of Common Pleas erred when it granted Partial Summary Judgment to the City and determined the City was not bound to the Fifth Amended Agreement.
[2.] The Lucas County Court of Common Pleas erred when it granted Partial Summary Judgment to the City and determined that Ohio Revised Code § 307.93 requires unanimous consent of CCNO members to amend its Operating Agreement.

{¶ 19} The Board assigns the following error:

The trial court erred in entering partial summary judgment in favor of Plaintiff-Appellee and against Defendant-Appellant.

{¶ 20} The Sheriff assigns the following error:

The Common Pleas Court committed prejudicial error when it granted the City of Toledo's motion for summary judgment and when it denied the Sheriff's motion for summary judgment.

{¶ 21} We will begin our review with the Board's and Sheriff's assignments of error. Both of these assignments of error challenge the trial court's conclusion that, under Ohio law, Lucas County must pay the cost of incarcerating individuals charged with or convicted of state law misdemeanors, regardless of the court that adjudicates those individuals' cases. The Board and Sheriff argue that the trial court's conclusion is wrong because the court ignored R.C. 753.02(A). According to the Board and Sheriff, R.C. 753.02(A) imposes upon Toledo the duty to: (1) operate its own detention facility or contract with Lucas County to house prisoners, and (2) pay for housing all prisoners charged with or convicted of a misdemeanor in the Toledo Municipal Court. In response, Toledo asserts that R.C. 753.02(A) is irrelevant.

{¶ 22} To resolve the parties' dispute, we must construe the language of R.C. 753.02(A). A question of statutory construction presents an issue of law that appellate courts review de novo. Lang v. Dir., Ohio Dept. of Job & Family Servs. , 134 Ohio St.3d 296, 2012-Ohio-5366, 982 N.E.2d 636, ¶ 12. The goal of statutory construction is to ascertain and give effect to the General Assembly's intent. Hulsmeyer v. Hospice of Southwest Ohio, Inc. , 142 Ohio St.3d 236, 2014-Ohio-5511, 29 N.E.3d 903, ¶ 21 ; Summerville v. Forest Park , 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 18. In determining that intent, courts first look to the statutory language and the purpose to be accomplished. Hulsmeyer at ¶ 21. When a statute's meaning is clear and unambiguous, courts apply the statute as written. Summerville at ¶ 18. In such a situation, courts have no basis for resorting to rules of statutory interpretation, as an unambiguous statute is to be applied, not interpreted. Jacobson v. Kaforey , 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 8. If, however, a statute is ambiguous, " 'courts seek to interpret the statutory provision in a manner that most readily furthers the legislative purpose as reflected in the wording used in the legislation.' " State v. Black , 142 Ohio St.3d 332, 2015-Ohio-513, 30 N.E.3d 918, ¶ 38, quoting State ex rel. Toledo Edison Co. v. Clyde , 76 Ohio St.3d 508, 513, 668 N.E.2d 498 (1996). To discern that purpose, courts may consider several factors, including the object sought to be obtained, the legislative history, and the consequences of a particular construction. R.C. 1.49.

{¶ 23} In its entirety, R.C. 753.02(A) states:

The legislative authority of a municipal corporation shall provide by ordinance for sustaining all persons sentenced to or confined in a prison or station house at the expense of the municipal corporation, and in counties where prisons or station houses are in quarters leased from the board of county commissioners, may contract with the board for the care and maintenance of those persons by the sheriff or other person charged with the care and maintenance of county prisoners. On the presentation of bills for food, sustenance, and necessary supplies, to the proper officer, certified by the person whom the legislative authority designates, the officer shall audit the bills under the rules prescribed by the legislative authority, and draw the officer's order on the treasurer of the municipal corporation in favor of the person presenting the bill.

{¶ 24} Initially, we see nothing in the plain language of R.C. 753.02(A) that requires a municipal corporation to either operate its own detention facility or contract with the county for the housing of prisoners. Outside of R.C. 753.02(A), the Revised Code contains multiple statutes governing municipal corporations' ability to establish and operate a detention facility. See R.C. 715.16(A) ("Any municipal corporation may: (A) Establish, erect, maintain, and regulate jails, * * * workhouses, station houses, [and] prisons * * *."); R.C. 717.01(F) ("Each municipal corporation may do any of the following: * * * Construct * * * prisons * * *."); R.C. 753.21(B) (authorizing the legislative authority of a municipal corporation to permit the use of certain types of structures as a minimum security jail). By the repeated use of the word "may," these statutes permit, but do not require, a municipal corporation to found and run a detention facility. See Smucker v. Levin , 113 Ohio St.3d 337, 2007-Ohio-2073, 865 N.E.2d 866, ¶ 14 ' "May" is generally construed to render optional, permissive, or discretionary the provision in which it is embodied.' "). Nothing in R.C. 753.02(A) transforms this statutory authority to establish a municipal detention facility into a statutory mandate. Rather, the only mandate in R.C. 753.02(A) is the provision of payment for the sustenance of certain prisoners.

{¶ 25} Moreover, R.C. 753.02(A) contains no requirement that a municipal corporation contract with the county for the detention of prisoners. If the municipal corporation leases space from the county for a prison or station house, then the municipal corporation "may contract" with the county for the sheriff to care for and maintain the prisoners housed in that space. R.C. 753.02(A). Due to the use of "may," the statute leaves the option to contract to the municipal corporation's discretion. See Smucker at ¶ 14. When the municipal corporation choses to enter such a contract, it must pay the county for the "food, sustenance, and necessary supplies" the sheriff provides to the prisoners. R.C. 753.02(A).

{¶ 26} Given the plain language of R.C. 753.02(A), we reject the Board's and Sheriff's contention that the statute compels a municipal corporation to either operate its own detention facility or contract with the county to house and sustain prisoners. R.C. 753.02(A) does not address the establishment of detention facilities at all, and it permits, but does not require, a municipal corporation to contract with the county. Accordingly, we turn to the question of whether R.C. 753.02(A) requires Toledo to assume the costs of imprisoning individuals charged with or convicted of misdemeanors in the Toledo Municipal Court.

{¶ 27} Indisputably, by the first clause of the first sentence of R.C. 753.02(A), the General Assembly imposes a duty on municipal corporations to pay the cost of sustaining prisoners. The statute, however, is less clear regarding which prisoners municipal corporations must provide sustenance. Pursuant to the plain language of the statute, municipal corporations must pay for sustaining "all persons sentenced to or confined in a prison or station house." R.C. 753.02(A). If we read this language literally, we would necessarily conclude that municipal corporations have to shoulder the expense of sustaining all individuals held in any Ohio prison, including those institutions under the control of the Department of Rehabilitation and Correction. This reading is implausible, and consequently, we must delve further into R.C. 753.02(A) to determine its meaning. See State v. Roberts , 150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d 851, ¶ 47 (" 'It is a cardinal rule of statutory construction that a statute should not be interpreted to yield an absurd result.' "); accord R.C. 1.47(C) (courts must presume that the General Assembly intended a "just and reasonable result" when enacting a statute).

{¶ 28} In order to ascertain the meaning of R.C. 753.02(A), we turn to the history of the statute. The General Assembly first enacted the statutory language that now appears in R.C. 753.02(A) in 1869 as part of a comprehensive act providing for the organization and government of municipal corporations. For our purposes, three sections enacted in 1869 are relevant:

Sec. 215. The council of any city or incorporated village shall have power to erect, establish and maintain a prison and one or more watch or station houses, as shall be necessary; and such prison, watch or station houses shall be under the control of the marshal, or chief of police, under such rules and regulations as the council may prescribe.
Sec. 216. It shall be the duty of the marshal or chief of police to provide all persons confined to such prison, watch or station houses, with necessary food during such confinement, and to see that such places of confinement are kept clean and made comfortable for the inmates thereof.
Sec. 217. The council shall provide, by ordinance, for sustaining all persons sentenced to or confined in such prison at the expense of the corporation; and on the presentation of bills for food, sustenance and necessary supplies to the proper officer, certified to by such person or persons as the council may designate, not exceeding forty cents a day, such officer shall audit the same under such rules and regulations as the council may prescribe, and draw his order on the treasurer of the corporation in favor of the officer presenting such bill.

66 Ohio Laws 185-86.

{¶ 29} This historical context elucidates the meaning of R.C. 753.02(A). Section 217 of the 1869 act required a municipal corporation to pay for sustaining all persons sentenced to or confined in "such prison," i.e., the prison the municipal corporation had the power to erect, establish, and maintain pursuant to Section 215. Thus, the statute, as originally passed, required municipal corporations to pay for the sustenance of prisoners sentenced to or confined in municipal prisons or station houses.

{¶ 30} Although much of the context that surrounded the 1869 statute has fallen away, the language of present-day R.C. 753.02(A) corresponds closely with its predecessor. Moreover, even today, the Revised Code permits municipal corporations to "[e]stablish, erect, maintain, and regulate * * * station houses [and] prisons." R.C. 715.16(A). Given the consistency in the relevant statutory language, we conclude that R.C. 753.02(A) serves the same purpose it served when originally enacted. Thus, R.C. 753.02(A) requires a municipal corporation to pay the expense of sustaining those persons it holds in the prison or station house that it establishes or maintains.

{¶ 31} Our conclusion is strengthened by the two cases that have reviewed R.C. 753.02(A) and determined its meaning. In Univ. Hosps. v. Cleveland , 28 Ohio Misc. 134, 138, 276 N.E.2d 273 (C.P.1971), the Cuyahoga County Court of Common Pleas held that R.C. 753.02"clearly provides that the municipal corporation shall provide for the sustenance of all persons sentenced to or confined in a municipal prison." (Emphasis added.) Likewise, the Ninth District Court of Appeals determined that R.C. 753.02(A) places upon a municipal corporation "the responsibility of furnishing necessities to persons confined in its prison." (Emphasis added.) Akron City Hosp. v. Akron , 9th Dist. No. 12133, 1985 WL 10907 (Oct. 30, 1985).

{¶ 32} Because R.C. 753.02(A) only requires a municipal corporation to pay for the sustenance of prisoners detained in its prison or station house, the statute does not become relevant unless a municipal corporation has a prison or station house. Toledo does not possess a prison or station house. R.C. 753.02(A), therefore, does not impose any financial obligations on Toledo.

{¶ 33} The Board and Sheriff cite multiple cases that they characterize as supporting their argument that Toledo must pay for the care and sustenance of all prisoners charged with or convicted of misdemeanors in the Toledo Municipal Court. These cases, however, conform with our interpretation of R.C. 753.02(A). A decision from this court, St. Vincent Hosp. & Med. Ctr. v. Shatzer , 6th Dist. No. L-85-150, 1986 WL 1304 (Jan. 31, 1986) illustrates this point.

{¶ 34} In Shatzer , a prisoner held in the Norwalk City Jail deliberately set a fire, which seriously burned him. The prisoner received medical treatment at St. Vincent Hospital, and the hospital sued the city seeking payment for the medical services it rendered to the prisoner. After quoting R.C. 753.02(A), this court held that Norwalk was liable for the costs of the prisoner's medical care because it had exerted actual, physical dominion and control over the prisoner at the time of his injury.

{¶ 35} Under our interpretation of R.C. 753.02(A), a municipal corporation must pay to sustain the prisoners held in its prison or station house. In Shatzer , we required Norwalk to pay for the medical care of a prisoner because that prisoner was held in Norwalk's jail when he suffered injury. Our conclusion in Shatzer that care is incident to custody is completely consistent with a municipal corporation's duty, under R.C. 753.02(A), to assume the cost of providing sustenance for the prisoners it holds in its prison or station house.

{¶ 36} Finally, the rules of statutory interpretation preclude us from adopting the Board's and Sheriff's interpretation of R.C. 753.02(A). Both the Board and Sheriff construe R.C. 753.02(A) to obligate a municipal corporation to pay the cost of sustaining prisoners charged with or convicted of misdemeanors in the municipal court located in the municipal corporation. However, nothing in the text of R.C. 753.02(A) premises a municipal corporation's payment obligation on the kind of court that adjudicates prisoners' cases. Therefore, to interpret R.C. 753.02(A) as the Board and Sheriff advocate, we would have to add language to the statute. We cannot do this. See In re Application of Columbus S. Power Co. , 147 Ohio St.3d 439, 2016-Ohio-1608, 67 N.E.3d 734, ¶ 49 ("But in construing a statute, we may not add or delete words."); Hulsmeyer , 142 Ohio St.3d 236, 2014-Ohio-5511, 29 N.E.3d 903, at ¶ 23 ("[C]ourt[s] must give effect to the words used, making neither additions nor deletions from words chosen by the General Assembly.").

{¶ 37} In sum, we conclude that R.C. 753.02(A) does not require Toledo to pay for housing prisoners charged with or convicted of misdemeanors in the Toledo Municipal Court. We, therefore, turn our attention to R.C. 1905.35, the statute that Toledo claims resolves how to divide imprisonment costs between it and Lucas County.

{¶ 38} Pursuant to R.C. 1905.35 :

Imprisonment under the ordinances of a municipal corporation shall be in the workhouse or other jail of the municipal corporation. Any municipal corporation not provided with a workhouse, or other jail, may, for the purpose of imprisonment, use the county jail, at the expense of the municipal corporation, until the municipal corporation is provided with a prison, house of correction, or workhouse. Persons so imprisoned in the county jail are under the charge of the sheriff. Such sheriff shall receive and hold such persons in the manner prescribed by the ordinances of the municipal corporation, until such persons are legally discharged.

"Imprisonment," as used in R.C. 1905.35, means "being imprisoned under a sentence imposed for an offense or serving a term of imprisonment, prison term, jail term, term of local incarceration, or other term under a sentence imposed for an offense * * *." R.C. 1.05(A).

{¶ 39} Under the plain language of R.C. 1905.35, a municipal corporation must pay the cost of housing persons convicted of a city ordinance, either by incarcerating those persons in its own detention facility or reimbursing the sheriff for maintaining such persons in the county jail. Moreover, by explicitly requiring municipal corporations to pay for the incarceration of ordinance violators, R.C. 1905.35 implicitly relieves municipal corporations from the obligation to pay for incarcerating state law violators. See Myers v. Toledo , 110 Ohio St.3d 218, 2006-Ohio-4353, 852 N.E.2d 1176, ¶ 24 ("The canon expressio unius est exclusio alterius tells us that the express inclusion of one thing implies the exclusion of the other.").

{¶ 40} As applied to the case at bar, R.C. 1905.35 allocates to Toledo the obligation to pay for imprisoning misdemeanants convicted of ordinance violations. Lucas County, consequently, must pay the costs of imprisoning misdemeanants convicted of state law violations.

{¶ 41} In arguing to the contrary, the Board and Sheriff assert that R.C. 1905.35 does not apply to this case because that statute appears in R.C. Chapter 1905, which is entitled "Mayor's Court." Pointing to R.C. 1905.35's location in the statutory framework, the Board and Sheriff contend that R.C. 1905.35 pertains only when a mayor's court sentences an individual to imprisonment. We disagree.

{¶ 42} If the language of a statute is plain and unambiguous, a court must apply, not interpret, that statute. Jacobson , 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, at ¶ 8. Courts " 'do not have the authority' to dig deeper than the plain meaning of an unambiguous statute 'under the guise of either statutory interpretation or liberal construction.' " Id. , quoting Morgan v. Ohio Adult Parole Auth. , 68 Ohio St.3d 344, 347, 626 N.E.2d 939 (1994). In other words, courts cannot look beyond the language of an unambiguous statute to determine its meaning. See Jones v. Action Coupling & Equip. , 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12 ("When the statutory language is plain and unambiguous, and conveys a clear and definite meaning, we must rely on what the General Assembly has said."). Thus, while the location of a statute in the Revised Code framework may influence the interpretation of an ambiguous statute, such a consideration has no place in the interpretation of an unambiguous statute.

{¶ 43} Here, R.C. 1905.35 is an unambiguous statute that requires a municipal corporation to pay for "[i]mprisonment under the ordinances of [the] municipal corporation." We, therefore, have no cause to go further than the plain language of the statute to determine its meaning. Because that language does not limit the statute's application to imprisonment ordered by a mayor's court, we must reject the Board's and Sheriff's interpretation of R.C. 1905.35.

{¶ 44} R.C. 1905.35, however, only provides a partial answer to whether Toledo or Lucas County must pay for housing prisoners charged with or convicted of a misdemeanor in a Toledo-based court. R.C. 1905.35 addresses postconviction imprisonment; it gives no guidance as to which governmental subdivision must pay for housing pretrial detainees. Fortunately, the Board has provided us with direction. The Board has conceded that, "[w]hen a detainee is housed in the county jail, the sheriff has actual custody, and responsibility for the costs of confinement rests on the County without regard to any statute-ordinance distinction." (Board's Reply Brief at 7.)

{¶ 45} The Board's concession is consistent with the law governing the circumstances present in Lucas County. As we stated above, individuals arrested in Toledo for misdemeanor violations are housed in the LCCC if they are denied bail or cannot pay the bail amount set by the court. The Sheriff has charge of the LCCC and all persons confined there. R.C. 341.01. The Sheriff has the duty to "keep * * * persons [confined in the county jail] safely, attend to the jail, and govern and regulate the jail according to the minimum standards for jails in Ohio promulgated by the department of rehabilitation and correction."Id. Under the standards applying to full-service jails, the Sheriff must provide a minimum level of security, sanitation, food, clothes, bedding, and medical services to LCCC inmates. See Ohio Adm.Code Chapter 5120:1-8. Lucas County, therefore, must bear the cost of providing housing, food, clothes, bedding, and medical care to LCCC prisoners, including pretrial detainees with misdemeanor cases pending before the Toledo Municipal Court. See Shatzer , 6th Dist. No. L-85-150 (Jan. 31, 1986) (ordering the city to pay the cost of medical care provided to a prisoner in the custody of the city jail because " 'care * * * is incident * * * to the custody' "); Akron City Hosp. , 9th Dist. No. 12133 (Oct. 30, 1985) (holding that "[p]rovision of sustenance is a natural corollary to physical custody of the person," and thus, ordering the city to pay for the medical care of a prisoner who fell ill while in the custody of the city corrections facility). In short, Lucas County must pay to maintain all prisoners in the Sheriff's custody.

{¶ 46} As a final matter, we acknowledge that the Board and Sheriff argue that allocating the imprisonment costs as the trial court did contradicts sound public policy. We, however, must leave that argument to the General Assembly to decide. The General Assembly, not the judiciary, resolves public policy issues. Johnson v. Microsoft Corp. , 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 14 ; accord Arbino v. Johnson & Johnson , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 71 ("[T]he General Assembly is charged with making the difficult policy decisions * * * and codifying them into law."). Courts do not second-guess the General Assembly's policy choices. Stetter v. R.J. Corman Derailment Servs., L.L.C. , 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 93. Rather, where the General Assembly has spoken, and in so speaking violated no constitutional provision, the courts must follow and apply the legislature's expression of public policy. Yoder v. Thorpe , 10th Dist. No. 07AP-225, 2007-Ohio-5866, 2007 WL 3197394, ¶ 38.

{¶ 47} In this case, we have followed and applied the relevant statutes to determine which governmental subdivision must pay the cost of imprisoning individuals charged with or convicted of misdemeanors in the Toledo Municipal Court. If the General Assembly wishes to change the law, it is free to do so.

{¶ 48} In sum, we conclude that the trial court did not err in declaring that Lucas County must bear the cost of housing individuals charged with or convicted of state law misdemeanors in Toledo Municipal Court. We note that the trial court also found Lucas County responsible for the "accompanying" or "attendant" costs of housing the relevant prisoners. Those "accompanying" or "attendant" costs are the costs associated with housing prisoners in a detention facility compliant with the minimum standards applicable to full-service jails. See Ohio Adm.Code 5120:1-8. Having found no error in the trial court's first declaration, we overrule the Board's assignment of error and the portion of the Sheriff's assignment of error that relates to that declaration.

{¶ 49} We next turn to the second issue presented in this appeal. By the Commission's first assignment of error and the Sheriff's assignment of error, the Commission and Sheriff argue that the trial court erred in declaring that the Fifth Agreement was not binding on Toledo. We disagree.

{¶ 50} Toledo argues that the Fifth Agreement does not bind it because its director of finance did not certify the availability of funds as required in R.C. 5705.41 and Chapter XIII, Sections 226 and 229, of Toledo's Charter. In relevant part, R.C. 5705.41 states that "[n]o subdivision or taxing unit shall:"

(D) (1) Except as otherwise provided in division (D)(2) of this section and section 5705.44 of the Revised Code, make any contract or give any order involving the expenditure of money unless there is attached thereto a certificate of the fiscal officer of the subdivision that the amount required to meet the obligation or, in the case of a continuing contract to be performed in whole or in part in an ensuing fiscal year, the amount required to meet the obligation in the fiscal year in which the contract is made, has been lawfully apportioned for such purpose and is in the treasury or in process of collection to the credit of an appropriate fund free from any previous encumbrances. * * * Every such contract made without such a certificate shall be void, and no warrant shall be issued in payment of any amount due thereon.

The definition of "subdivision," as used in R.C. 5705.41, encompasses all municipal corporations, including those municipal corporations that have a charter under Article XVIII of the Ohio Constitution. R.C. 5705.01(A) and (B).

{¶ 51} Under the plain language of R.C. 5705.41(D)(1), a subdivision generally "cannot enter into a contract that requires spending public money unless the fiscal officer of that subdivision certifies that the entire amount required to satisfy the obligation has been appropriated for that purpose and is available and unencumbered." St. Marys v. Auglaize Cty. Bd. of Commrs. , 115 Ohio St.3d 387, 2007-Ohio-5026, 875 N.E.2d 561, ¶ 49. The failure to attach a certificate as required by R.C. 5705.41(D)(1) is fatal to the validity of the contract. Pincelli v. Ohio Bridge Corp. , 5 Ohio St.2d 41, 213 N.E.2d 356 (1966), paragraph four of the syllabus; NaphCare, Inc. v. Cty. Council Ohio , 9th Dist. No. 24906, 2010-Ohio-4458, 2010 WL 3677401, ¶ 11. The certification requirement is intended " 'to preclude the creation of any valid obligation against the [subdivision] above or beyond the fund previously provided and at hand for such purpose.' " St. Marys at ¶ 49, quoting State v. Kuhner , 107 Ohio St. 406, 413, 140 N.E. 344 (1923).

{¶ 52} The Commission and Sheriff do not contest that the Fifth Agreement lacks a R.C. 5705.41(D)(1) certificate signed by Toledo's director of finance. Instead, the Commission and Sheriff argue that R.C. 5705.41(D)(1) does not apply to contracts between political subdivisions. Because all the parties to the Fifth Agreement are political subdivisions, the Commission and Sheriff contend that the absence of a R.C. 5705.41(D)(1) certificate from Toledo's director of finance does not invalidate that agreement.

{¶ 53} In support of their argument, the Commission and Sheriff cite Bd. of Cty. Commrs. v. Bd. of Twp. Trustees , 3 Ohio App.3d 336, 445 N.E.2d 664 (7th Dist.1981), and two cases following it. In Bd. of Cty. Commrs. , the Board of Trustees of Island Creek Township entered into a contract with the Board of Commissioners of Jefferson County for Jefferson County to service and supply water to Island Creek's fire hydrants. The contract did not include an R.C. 5705.41(D)(1) certificate. Island Creek stopped paying under the contract, and Jefferson County sued it. In response, Island Creek argued that it was not bound by the contract because the contract lacked an R.C. 5705.41(D)(1) certificate. The Seventh District Court of Appeals disagreed, concluding that R.C. 5705.41(D)(1) did not apply when two political subdivisions contract with each other.

{¶ 54} R.C. 5705.41(D)(1) contains two enumerated exceptions; namely, it permits a subdivision to contract without an R.C. 5705.41(D)(1) certificate as "provided in division (D)(2) of [ R.C. 5705.41 ] and [R.C.] 5705.44." Neither R.C. 5705.41(D)(2) nor R.C. 5705.44 exempt contracts between two or more public subdivisions from the operation of R.C. 5705.41(D)(1). The exception created in Bd. of Cty. Commrs. , therefore, has no statutory basis.

{¶ 55} "When a statutory provision imposing a mandatory obligation has specifically enumerated exceptions, a court does not have discretion to create additional exceptions." State v. Vanzandt , 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 15 ; accord State ex rel. Sapp v. Franklin Cty. Ct. of Appeals , 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 26 (when the plain language of a statute does not recognize the exception sought, the court could not add it); State ex rel. Stoll v. Logan Cty. Bd. of Elections , 117 Ohio St.3d 76, 2008-Ohio-333, 881 N.E.2d 1214, ¶ 39 ("But the statute contains no exception, and we cannot add one to its express language."). Here, R.C. 5705.41(D)(1) imposes a mandatory obligation on subdivisions to attach a certificate from its fiscal officer to any contract it makes, with specifically enumerated exceptions. Those enumerated exceptions do not include contracts between two or more public subdivisions. Consequently, in the cases the Commission and Sheriff cite, the courts exceeded the boundaries of their discretion in applying an uncodified exception to the R.C. 5105.41(D)(1) requirement. For this reason, we cannot follow those cases.

{¶ 56} Next, the Sheriff argues that R.C. 307.19 exempts the Fifth Agreement from compliance with R.C. 5105.41(D)(1). R.C. 307.19 states:

Sections 307.14 to 307.19, inclusive, of the Revised Code, do not repeal or abrogate other sections of the Revised Code authorizing contracts or agreements among particular classes of subdivisions, or modify or impair the force of such sections in respect of contracts or agreements entered into under such sections. Nor shall such other sections control or limit the making of agreements under sections 307.14 to 307.19, inclusive, of the Revised Code ; it being intended that such sections shall be applied as fully as though such other sections did not exist.

{¶ 57} Relying on the second sentence of R.C. 307.19, the Sheriff argues that no Revised Code sections, other than R.C. 307.14 to 307.19, control or limit the Fifth Agreement, which the parties made under R.C. 307.15. Thus, the Sheriff contends, the requirements of R.C. 5105.41(D)(1) do not exist as to the Fifth Agreement.

{¶ 58} The Sheriff misreads R.C. 307.19. The "such other sections" that do not control or limit agreements made under R.C. 307.14 to 307.19 are "other sections of the Revised Code authorizing contracts or agreements among particular classes of subdivisions." To reach his interpretation, the Sheriff disregards the limiting phrase "authorizing contracts or agreements among particular classes of subdivisions." The Sheriff interprets R.C. 307.19 as if the "such other sections" that do not control or limit agreements made under R.C. 307.14 to 307.19 were all "other sections of the Revised Code."

{¶ 59} However, in interpreting a statute, courts cannot delete language used in the statute. Cleveland Elec. Illuminating Co. v. Cleveland , 37 Ohio St.3d 50, 524 N.E.2d 441 (1988), paragraph three of the syllabus ("In matters of construction, it is the duty of [a] court to give effect to the words used, not to delete words used or to insert words not used."). Read in its entirety, R.C. 307.19 does not exempt contracts made under R.C. 307.15 from all other Revised Code sections. Instead, R.C. 307.19 only exempts contracts made under R.C. 307.15 from other Revised Code sections "authorizing contracts or agreements among particular classes of subdivisions."

{¶ 60} R.C. 5105.41(D)(1) does not authorize contracts or agreements among particular classes of subdivisions. R.C. 307.19, therefore, does not preclude the application of R.C. 5105.41(D)(1) to the Fifth Agreement.

{¶ 61} In sum, we reject all the reasons the Commission and Sheriff offer for exempting the Fifth Agreement from R.C. 5105.41(D)(1)'s certification requirement. Because Toledo's director of finance did not attach an R.C. 5105.41(D)(1) certificate to the Fifth Agreement, that agreement is invalid and nonbinding as to Toledo.

{¶ 62} As a final matter, we must address the Sheriff's argument that the trial court erred in its interpretation of the interplay between Sections 6 and 8 of the Fourth Agreement. After reviewing the trial court's judgment, we conclude that the trial court engaged in no such interpretation. The trial court merely concluded that Sections 6 and 8 of the Fourth Agreement bound Toledo. Thus, the trial court did not err as the Sheriff has alleged.

{¶ 63} Having concluded that the Fifth Agreement does not bind Toledo, we find no error in the trial court's declaration. Accordingly, we overrule the Commission's first assignment of error and the remainder of the Sheriff's assignment of error.

{¶ 64} By the Commission's second assignment of error, it argues that the trial court erred in determining that the Fifth Agreement was not binding because the parties did not unanimously consent to it. We have concluded that the Fifth Agreement does not bind Toledo for a separate, unrelated reason. The Commission's second assignment of error, therefore, is moot.

{¶ 65} Finally, we turn to Toledo's cross-assignment of error, by which Toledo argues that the trial court erred in ruling that Toledo was not entitled to reimbursement of the payment it made to the Commission at the end of the second quarter of 2016. This cross-assignment of error is not properly before this court.

{¶ 66} Pursuant to App.R. 3(C) :

(1) Cross appeal required. A person who intends to defend a judgment or order against an appeal by an appellant and who also seeks to change the judgment or order or, in the event the judgment or order may be reversed or modified, an interlocutory ruling merged into the judgment or order, shall file a notice of cross appeal within the time allowed by App.R. 4.
(2) Cross appeal and cross-assignment of error not required. A person who intends to defend a judgment or order appealed by an appellant on a ground other than that relied on by the trial court but who does not seek to change the judgment or order is not required to file a notice of cross appeal or to raise a cross-assignment of error.

{¶ 67} Here, by its cross-assignment of error, Toledo seeks to reverse the trial court's ruling that denied it reimbursement. Thus, App.R. 3(C)(1) required Toledo to file a notice of cross appeal. Toledo did not do that. Accordingly, we cannot consider Toledo's argument, and therefore, we dismiss the cross-assignment of error. See Bennett v. Waidelich , 6th Dist. No. F-04-023, 2005-Ohio-2489, 2005 WL 1201024, ¶ 32 (refusing to consider an appellee's argument seeking to reverse the trial court's judgment when the appellee failed to file a notice of cross appeal).

{¶ 68} For the foregoing reasons, we overrule the Commission's first assignment of error, and the Board's and Sheriff's assignments of error. Our ruling on the Commission's first assignment of error renders the Commission's second assignment of error moot, and consequently, we do not rule on it. We affirm the judgment of the Lucas County Court of Common Pleas. Pursuant to App.R. 24, it is ordered that appellants pay the costs of this appeal.

Judgment affirmed.

Lisa L. Sadler, J.

Julia L. Dorrian, J.

CONCUR.

Judges William A. Klatt, Lisa L. Sadler and Julia L. Dorrian, Tenth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.

      A court must order the detention of an individual charged with a crime "[i]f [the] offense is not bailable, if the court denies bail to the accused, or if the accused does not offer sufficient bail." R.C. 2937.32.

      Both the Toledo Municipal Court and the Lucas County Court of Common Pleas are located in Toledo.

      Additionally, offenders sentenced to jail time in the municipal courts of Maumee, Sylvania, and Oregon occupied Lucas County beds. Maumee, Sylvania, and Oregon are all municipal corporations located in Lucas County.

      In its complaint, Toledo defined "state prisoners" as pretrial detainees and sentenced misdemeanants who were charged or sentenced under the Revised Code.

      The Boards of Commissioners of Defiance County, Fulton County, Henry County, and Williams County joined the Commission in its trial court and appellate briefing. For the ease of discussion, we hereinafter will refer to those appellants collectively as "the Commission."

      Although claims remain pending below, the trial court included Civ.R. 54(B) language in its judgment. We, therefore, may review this partial judgment on appeal.

      A "station house" is "[a] building for the temporary detention of offenders, attached to or under the jurisdiction of a police station." Oxford English Dictionary (3d Ed.2012).

      We discuss below the category of prisoners that municipal corporations must pay to sustain.

      This obligation pertains to a municipal corporation regardless of whether it establishes and maintains its own prison or station house, or it leases space from the county in which to establish and maintain a prison or station house.

      We recognize that the effect of our conclusion is that Lucas County has the obligation to pay for housing pretrial detainees charged with any misdemeanor, regardless of whether that misdemeanor is a state law offense or ordinance offense. However, given the assignments of error before us, the only question under our review is whether the trial court erred in imposing on Lucas County the responsibility to pay for imprisoning those alleged to have violated state law . As Toledo did not appeal the trial court's judgment, we expressly decline to rule regarding which governmental subdivision must pay for housing detainees alleged to have violated ordinances .

      Sections 226 and 229 of the Toledo Charter are substantively identical to R.C. 5705.01(D)(1). Section 226 of the Toledo Charter requires the same certification as R.C. 5705.01(D)(1), and Section 229 states that all contracts without the necessary certification are void.

      The two cases are Rua v. Shillman , 28 Ohio App.3d 63, 502 N.E.2d 220 (11th Dist.1985), and Sagamore Hills Twp. v. Troutman , 9th Dist. No. 11159, 1984 WL 4148 (Jan. 18, 1984).

      R.C. 5705.41(D)(2) allows boards of county commissioners to "adopt a resolution exempting county purchases of one thousand dollars or less from the requirement of division (D)(1) of this section that a certificate be attached to any contract or order involving the expenditure of money." R.C. 5705.44 provides:
      The certificate required by section 5705.41 of the Revised Code as to money in the treasury shall not be required for contracts on which payments are to be made from the earnings of a publicly operated water works or public utility, but in the case of any such contract made without such certification, no payment shall be made on account thereof, and no claim or demand thereon shall be recoverable, except out of such earnings. That certificate also shall not be required if requiring the certificate makes it impossible for a county board of developmental disabilities to pay the nonfederal share of medicaid expenditures that the county board of is required by sections 5126.059 and 5126.0510 of the Revised Code to pay.
      Additionally, we note that R.C. 5705.412, which governs "qualifying contract[s]" made by school districts, applies to school districts "[n]otwithstanding [R.C.] 5705.41." R.C. 5705.412(B)(1).


source: Caselaw Access Project

license: Public Domain

text:
    Karen J. SUMMERS, as Administratrix of the Estate of Arla Johnson, and Personal Representative, Plaintiff-Appellant, v. LANCIA NURSING HOMES, INC., d/b/a Belmont Manor Nursing Home, et al., Defendants-Appellees.
    NO. 17 BE 0011
    Court of Appeals of Ohio, Seventh District, Belmont County.
    Dated: December 20, 2017
    Atty. Geoffrey C. Brown, Atty. Scott S. Blass, Atty. Tyler Smith, Atty. James B. Stoneking, Bordas & Bordas PLLC, 1358 National Road, Wheeling, West Virginia 26003, For Plaintiff-Appellant.
    Atty. James K. Reuss, Atty. Karen M. Cadieux, Carpenter Lipps & Leland LLP, 280 Plaza, Suite 1300, 280 N. High Street, Columbus, Ohio 43215, Atty. Martin T. Galvin, Atty. Thomas A. Prislipsky, Reminger Co., L.P.A., 101 West Prospect Avenue, Suite 1400, Cleveland, Ohio 44115-1093, For Defendants-Appellees.
   JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite

OPINION

ROBB, P.J.

{¶ 1} Plaintiff-Appellant Karen J. Summers, Administratrix of the Estate of Arla Johnson appeals the decision of Belmont County Common Pleas Court denying her Civ.R. 60(B) motion to vacate the trial court's ruling on her Civ.R. 59 new trial motion.

{¶ 2} This appeal is the third appeal from the underlying case. The first appeal was from a discovery order, which this court determined was not a final appealable order. Summers v. Lancia Nursing Homes, Inc. , 7th Dist. No. 12 BE 0039 (August 30, 2013) J.E. (Summers I ). The second appeal addressed the trial court's denial of the Civ.R. 60(B) motion. Summers v. Lancia Nursing Homes, Inc. , 7 Dist., 2016-Ohio-7935, 76 N.E.3d 653 ( Summers II ). In Summers II , we held the trial court abused its discretion when it failed to hold an evidentiary hearing to determine whether Civ.R. 60(B)(1) and the second prong of the GTE test was met. Thus, the matter was remanded for an evidentiary hearing. Following the evidentiary hearing, the trial court denied the Civ.R. 60(B)(1). The issue now before us is whether the trial court violated the law of the case doctrine and the mandate rule.

{¶ 3} For the reasons expressed below, the trial court did not violate either rule. The trial court's decision is affirmed.

Statement of the Case

{¶ 4} In early 2012, Appellant filed a medical malpractice and wrongful death complaint against Defendants-Appellees Lancia Nursing Homes Inc. d/b/a Belmont Manor Inc. (Appellee Belmont Manor), Dr. Carmel C. Shaw-Nieves, and Dr. Divakar Sydney Bangera. Decedent Arla Johnson was a resident of Appellee Belmont Manor and Appellees Drs. Shaw-Nieves and Bangera were her doctors.

{¶ 5} The case proceeded through discovery. A discovery order was appealed to our court and we determined the order was not a final appealable order. Summers I, August 30, 2013 J.E.

{¶ 6} Trial occurred in April 2015 and the jury returned a defense verdict. 4/28/15 J.E. Following the verdict, Appellant filed a timely Civ.R. 59 motion for a new trial. Appellant did not file a notice of appeal from the judgment entry memorializing the jury verdict because pursuant to App.R. 4(B)(2), the filing of the motion for new trial extended the time to file a notice of appeal. The time for filing a notice of appeal from the jury verdict and the ruling on the new trial motion began to run when the trial court entered the judgment on the motion for new trial. App.R. 4(B)(2).

{¶ 7} Appellees each filed their own motion in opposition to the Civ.R. 59 motion. 7/6/15 Appellee Dr. Bangera's Motion in Opposition; 7/7/15 Appellee Dr. Shaw-Nieves' Motion in Opposition; Appellee Lancia Nursing Homes, Inc., 7/9/15 Appellee Belmont Manor's Motion in Opposition. Appellant filed a combined reply to the motions in opposition. 7/14/15 Reply. Neither Appellant's Civ.R. 59 motion, nor her response in opposition to the motion asked for a hearing on the new trial motion. 6/23/15 Motion; 7/14/15 Reply.

{¶ 8} The trial court decided the new trial request on the briefs and denied Appellant's motion. 7/21/15 J.E. The judgment indicated the clerk of courts was to serve copies on all parties or their attorneys. The docket indicated the clerk served copies by regular mail on July 21, 2015 to James Reuss, Kevin Coleman, Thomas Prislipsky, and Scott Blass, the attorneys for Appellees and Appellant.

{¶ 9} On August 27, 2015, Appellant filed a motion to vacate based on Civ.R. 60(B), Civ.R 58, and the court's inherent authority to vacate judgments. Appellant argued counsel did not receive the denial of the motion for a new trial and discovery of the July 21, 2015 judgment did not occur until August 24, 2015 when Attorney Geoffrey Brown audited his open files. Attached to the motion were affidavits from Attorney Geoffrey Brown and Attorney Scott Blass, attorneys working for Bordas & Bordas, PLLC, the law firm representing Appellant. In his affidavit, Attorney Brown explained he asked Attorneys Stoneking, Smith, and Blass if it would be advisable to request a hearing on the motion for new trial. Attorney Stoneking checked the online docket and discovered the July 21, 2015 order denying the motion for new trial and the clerk's notation that Attorney Blass was served by regular mail. As a result, Attorney Brown talked to Attorney Blass, interviewed his own administrative staff, examined the firm's computer files, and examined the firm's hard copy file to determine if the order was received. Based on his investigation, he determined the firm did not receive the order. Attorney Blass also avowed he did not receive a copy of the order through mail and was unaware of its existence until August 24, 2015.

{¶ 10} Appellee Belmont Manor filed a motion in opposition to the motion to vacate. 9/2/15 Appellee Belmont Manor Motion. Appellees Dr. Bangera and Dr. Shaw-Nieves filed separate motions to join in Appellee Belmont Manor's motion in opposition to relief from judgment. 9/3/15 Appellee Dr. Bangera Joinder Motion; 9/10/15 Appellee Dr. Shaw-Nieves Joinder Motion. The trial court denied the motion to vacate without holding an evidentiary hearing. 9/2/15 J.E.

{¶ 11} Appellant appealed the order arguing the trial court erred in denying Civ.R. 60(B) relief. Summers II , 2016-Ohio-7935, 76 N.E.3d 653. In Summers II , we noted Appellant acknowledged the motion to vacate was not filed for the purpose of asking the trial court to reconsider its ruling, but was filed to enable Appellant to perfect his appeal. The motion to vacate was filed because Appellant's attorneys claimed they did not receive the July 21, 2015 order denying the motion for a new trial. Discovery of the order did not occur until after the 30 day appeal time had expired. Id. at ¶ 16.

{¶ 12} This court held given the circumstances, Civ.R. 60(B) was the proper means to attack the July 21, 2015 judgment. Id. at ¶ 18-28. We then discussed the GTE test and explained the first and third prongs of the test were easily met. Id. at ¶ 29-40. As to the second prong, Appellant asserted counsels' actions constituted excusable neglect. Id. at ¶ 36. We stated given the affidavits from the attorneys, the trial court should have held an evidentiary hearing to determine whether the attorney's excuse for failing to know about the final judgment was excusable neglect. Id. at ¶ 40. Thus, we ultimately determined there was merit with the appeal; the trial court should have sua sponte held an evidentiary hearing since the issue before it was fact specific. Id. at ¶ 40. Accordingly, we remanded the matter to the trial court for an evidentiary hearing. Id. at ¶ 40 -41.

{¶ 13} An evidentiary hearing was held on January 18, 2017. Attorneys Scott Blass and Geoffrey Brown testified. 1/18/17 Tr. Following the hearing, each party filed a post-hearing brief in support of their position. 1/31/17 Appellee Belmont Manor Brief; 2/1/17 Appellant Brief; 2/1/17 Appellee Dr. Shaw-Nieves Brief; 2/1/17 Appellee Dr. Bangera Brief.

{¶ 14} On February 13, 2017, the trial court denied Civ.R. 60(B) relief. In rendering its ruling, the court stated:

The Plaintiff's case was remanded to this Court for an Evidentiary Hearing in regard to their 60(B) Motion. The Plaintiff's testimony essentially consisted of Attorneys Blass & Brown reiterating their affidavits previously filed with this Court setting forth that they didn't receive a copy of this Court's July 21, 2015 Order. They further testified that neither checked the online docket. Four attorneys from the Bordas & Bordas Law Firm participated in this case. Only one filed a notice of appearance. Attorney Smith failed to file a notice of appearance, even though his office is located in another city (Pittsburgh), thus, removing his office from those receiving notice from the clerk. This Court does not know what the testimony of Attorney Smith and Attorney Stoneking would have revealed in that neither took the stand to testify. Whether they checked the online docket or not and whether they then failed to act was not presented to this Court. Additionally, the testimony revealed that during the month in question, the Bordas Law Firm had an office across the street from the Belmont County Courthouse and therefore could have easily checked the Clerk's docket. Inexplicably, the person or persons responsible for receiving the mail at the Bordas Law Firm were not called as witnesses at the Evidentiary Hearing.
The most troubling testimony involved the procedure the Bordas Law Firm had in place to provide for protection against missing Appellate deadlines. They had no procedure. There was no tickler system, no automatic 30 day calendar check, nothing. In fact, pursuant to testimony at the Evidentiary Hearing, the only reason the four attorneys on the case checked the docket at all was because there was a discussion about whether they should ask for a hearing on their Motion for New Trial. They then stumbled upon this Court's order which had been filed on July 21, 2015 placing them past the Appellate Rule 4(A) 30 day deadline.
Pursuant to Griesmer"the vicissitudes of mail service mandate regular inspection of the electronic docket." None of the four attorneys nor any of their staff did so, or if in fact someone did, no one took action thereafter. Civil Rule 58 does not require receipt of notice, but rather "The failure of any party to receive such notice shall not affect ... the running of the time for appeal." At the time of the Court's July 21, 2015 ruling, no one at the law firm of Bordas & Bordas was tracking the Appellate Rule deadlines in any cases in any manner whatsoever. There was no tickler system, no automatic calendar follow up to protect against missed deadlines. It is telling that since this case, there are at least some individual efforts being made to protect against the missing of Appellate Court deadlines. It was the "carelessness, inattention, or willful disregard of the process of the Court" as set forth in Vanest that resulted in the missed deadline in the case at bar.
This matter was remanded to this Court for Evidentiary Hearing and the weighing of evidence. The same took place on January 18, 2017. The Plaintiff chose what evidence to present and what not to present. This Court finds said evidence to be unconvincing. When taking "into consideration all the surrounding facts and circumstances," to grant Plaintiff's 60(B) motion would "serve as an emasculation of the pleading rules and time limits" as set forth by the Supreme Court in Griffey supra. This Court is not willing to set such a precedent for violation of pleading rules and time limits. Wherefore, after due consideration of the exhibit presented at the hearing herein, the credibility of the witness and the post hearing briefs, this Court hereby denies Plaintiff's Motion for Relief From Judgment Order.

2/13/17 J.E.

{¶ 15} Appellant timely appealed raising one assignment of error.

Assignment of Error

"The trial court erred in denying the plaintiff's motion for relief from judgment under Civ.R. 60(B)."

{¶ 16} Appellant's argument is based on the law of the case doctrine and the mandate rule. Appellant contends the trial court allowed the evidentiary hearing to exceed the scope of our "limited remand" and relied on the information that was beyond the scope to render its ruling.

{¶ 17} The law of the case doctrine "provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels." Nolan v. Nolan , 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). This rule applies to issues previously resolved within the same case. Reid v. Cleveland Police Dept. , 151 Ohio St.3d 243, 2017-Ohio-7527, 87 N.E.3d 1231.

{¶ 18} The appellate mandate rule pertains to "the relationship between appellate and inferior courts, [and] is a jurisdictional bar on the inferior court's authority to reconsider issues that were expressly or impliedly decided in a previous appeal." Fritzgerald v. City of Cleveland Civ. Serv. Commission , 8th Dist. No. 104492, 2017-Ohio-7086, 2017 WL 3310943, ¶ 24, citing Phillips v. Houk , 587 Fed.App. 868, 871 (6th Cir.2014). The Eighth Appellate District further explained:

An appellate mandate works in two ways: it vests the lower court on remand with jurisdiction and it gives the lower court on remand the authority to render judgment consistent with the appellate court's judgment. Under the "mandate rule," a lower court must "carry the mandate of the upper court into execution and not consider the questions which the mandate laid to rest." Sprague v. Ticonic Natl. Bank (1939), 307 U.S. 161, 168, 59 S.Ct. 777 [83 L.Ed. 1184] ; see, also, State ex rel. Cordray v. Marshall , 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, at ¶ 32 * * *. The lower court may, however, rule on issues left open by the mandate. Id. But when the mandate leaves nothing left to decide, the lower court is bound to execute it. Id.

State v. Carlisle , 8th Dist. No. 93266, 2010-Ohio-3407, 2010 WL 2857806, ¶ 16.

{¶ 19} Appellant contends the trial court violated both of these rules when it permitted testimony about the online docket.

{¶ 20} In Summers II , we remanded the case for an evidentiary hearing. Summers II , 2016-Ohio-7935, 76 N.E.3d 653, ¶ 40. We determined the first and third prongs of the GTE test were clearly met; however, as to the second prong, an evidentiary hearing was required. Id. After citing our previous case reviews of when appellate courts have found excusable neglect, we stated:

The facts of this case could be deemed comparable to those situations. In filing the motion for Civ.R. 60(B), Appellant provided affidavits from two attorneys indicating the procedure followed after mail is received at the law firm, and both attorneys avowed they did not receive the notice in the mail. The actions of the attorneys, if believed, do not show a complete disregard for the judicial system. Consequently, Civ.R. 60(B)(1) could be applicable if the affidavits from the attorneys is believed.

Id. at ¶ 39.

{¶ 21} We then specifically stated, "the trial court should have held an evidentiary hearing to determine whether Civ.R. 60(B)(1) was met, i.e. was the attorneys' excuse for failing to file a timely notice of appeal believable." Id. at ¶ 40. Thus, the remand was limited to the issue of excusable neglect. Our decision and direction did not include a limitation that evidence concerning the online docket could not be considered. Accordingly, the trial court did not violate the law of the case or the mandate rule by hearing evidence about the online docket.

{¶ 22} Admittedly, the Eighth District's statement, "the vicissitudes of mail service mandate regular inspection of the electronic docket", made in Griesmer v. Allstate, 8th Dist. No. 91194, 2009-Ohio-725, 2009 WL 406558, ¶ 21 was raised to this court in the briefs in Summers II . Thus, the issue was before this court. In our Summers II opinion, we did not determine whether there is a duty to regularly check the electronic docket nor did we determine what regular inspection means. Accordingly, there is no absolute duty to check the online docket.

{¶ 23} Case law in our district supports this conclusion. The reason we are reluctant to impose such duty is technology is not consistently available across our district. For example, one county in our district does not have an online docket, another county's online docket became available only recently, and a third county's online docket is available but not accessible to this court due to firewalls. Imposing a duty to regularly check the docket in our district would require different degrees of duty depending on the county. Our district is not alone; other multicounty districts have counties with different levels of online accessibility. Furthermore, if there is a duty to check an online docket regularly, then the rule would apply to pro se litigants. See State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas , 123 Ohio St.3d 124, 2009-Ohio-4688, 914 N.E.2d 402, ¶ 1 ; Fuller v. Mengel , 100 Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10 ; Sabouri v. Ohio Dept. of Job & Family Servs. , 145 Ohio App.3d 651, 654, 763 N.E.2d 1238 (2001) ("[P]ro se litigants * * * are held to the same standard as litigants who are represented by counsel."). Although the accessibility to internet is vast there are still residents of Ohio who do not have access to internet.

{¶ 24} Our decision in Summers II did not determine there is a duty to regularly check the online docket in this district. However, that does not mean use or knowledge of the online docket cannot be considered in determining excusable neglect. There may be situations where an online docket checking system could provide evidence of excusable or inexcusable neglect. For instance, if an attorney knew of the online docket in county A and B, and has a system of regularly checking the online docket in county B, but not checking the online docket in county A, then there may be evidence that the attorney's conduct in failing to check the online docket in county A was not excusable neglect. Furthermore, considering the language used in remanding the matter for an evidentiary hearing, this court did not eliminate the allowance of evidence of the online docket.

{¶ 25} Therefore, this court concludes the trial court did not violate the law of the case nor the mandate rule.

{¶ 26} We shall now address Appellant's argument the trial court abused its discretion in denying the motion to vacate. In holding there was no excusable neglect, the court indicated two of the four attorneys working on the case did not testify. Therefore, whether or not they checked the online docket and whether they failed to act was not presented to the court. Also, the person responsible for receiving the mail at the law firm was not called as a witness. The court also stated the testimony indicated the firm had no procedure to protect against missing an appellate deadline. There was no tickler system nor 30 day check. The court stated the only reason the attorneys checked the docket was to discuss if they should ask for a hearing on the motion for new trial. The court then cited the Griesmer case for the duty to check the online docket. The court stated it found the evidence to be "unconvincing" and when taking into consideration all surrounding facts and circumstances, this was not excusable neglect. 2/13/17 J.E.

{¶ 27} The transcript of the hearing does indicate only two of the four attorneys working on the case testified at the hearing; Attorney Tyler Smith and Attorney Jay Stoneking did not testify. Attorneys Smith and Stoneking tried the case to the jury, and worked on and filed the motion for new trial. Attorney Smith's primary office was in Pittsburgh, Pennsylvania, and there was no testimony offered from him on whether he received notice or checked the online docket.

{¶ 28} The person who received the mail also did not testify. Appellant states that person is retired. However, retirement would not prevent the person from testifying.

{¶ 29} Attorney Blass testified the prompting to check the online docket was to see if a hearing was set for the new trial motion. Tr. 10, 15. Attorney Brown testified he internally audits his cases at least every two months, but usually it is every couple weeks. Tr. 51. In doing that audit, Attorney Brown checked this case and sent out an email to the other attorneys on the case asking what needed to be done next. Tr. 52. According to Attorney Brown that prompted Attorney Blass to suggest the online docket be checked to see if anything was set. Tr. 52. That led to the discovery of the July 21, 2015 judgment on August 24, 2015. Tr. 52.

{¶ 30} Upon discovering the order, an investigation ensued as to why this was the first time they had heard of the order. Attorney Brown first checked to see if the clerk had Attorney Blass' name and the correct address, which it did. Tr. 53. Attorney Brown testified about the firm's procedure upon receiving mail. One employee collects the mail, separates it by addressee, and then gives it to the staff of the attorney. Tr. 8. Attorney Blass stated his mail went to his paralegal who scans the mail, saves the electronic copy to the electronic file, and gives the hard copy to him. Tr. 8. The hard copy is date stamped. Tr. 8. Attorney Blass then takes whatever action is needed depending on the content of the correspondence. Tr. 8-9. After that, the hard copy is put in his out box. Tr. 9-10.

{¶ 31} Attorney Blass and Attorney Brown both reviewed the computer file to make sure the order had not come in and been overlooked; the computer file did not show receipt of the order. Tr. 11, 55. Attorney Brown looked through the hard file to see if the order was in there. Tr. 11, 54-55, 56. It was not. Tr. 12, 55, 56. Furthermore, no staff recalled seeing the order. Tr. 12, 56. Attorney Brown also stated he communicated directly to Attorney Stoneking to see if he was aware of the order and he also emailed Attorney Smith to see if he was aware of the order. Tr. 54. Both responded they were not. Tr. 54. Both Attorney Blass and Attorney Brown presumed Attorney Smith did not check the online docket at any time between June 23, 2015 (the date the new trial motion was filed) and August 24, 2015 (the date the July 21, 2015 order was discovered) because given the inquiry he would have told them he did. Tr. 27, 79. Attorney Brown also presumed Attorney Smith's paralegal did not check the online docket. Tr. 80.

{¶ 32} When asked if he or his staff put a reminder on the firm's case management online docket or calendar to check for a trial court order following the filing of the new trial motion, Attorney Blass explained:

As a firm, I'm not aware of any procedural mechanism by which we've adopted some type of protocol that we can be on the lookout for orders we don't receive. I mean, no. I can tell you that, you know, the protocol is you once you're advised-once you're informed of a deadline, you make sure it's docketed. I know personally, like Geoff, I make it a habit to review virtually every one of my files every 30 days, because I am responsible for a couple of associates and monitoring their cases. I'll make it through virtually all my cases to make sure, to see if there's anything that needs to be done.
Now, like Geoff I think in this case, I would have done the same thing and said, "This hasn't been set for hearing, we haven't heard anything. Let's see if we can get it moving." And at that point, the online docket was checked.
* * *
No. I'm unaware of any system that would-that when we file a motion, would say okay, we want to do X within 30 days. I mean, when we get an order that says, you know, that's when we enter our actual deadline. I guess the one system that's in place, at least for Geoff and I, and I think others, is just the constant monitoring of all of our files to see what activities are going on in them, to see if-what we can do to help move the case along. In plaintiff's practice, you want to keep your cases moving. But other than that, you know, then that's really not a computer system; that's just I'm at work on Saturday for eight hours, and I'm going through every one of my files to make sure everything is up to date.
* * *
Wasn't a formal protocol in place for someone to actively every two weeks, every three weeks, every 30 days, check the dockets, I mean, of any particular case. Other that, I think I said, reviewing our files and seeing, okay, nothing has happened in this; let's look into it. Let's figure out what we can do to move it along. But not like some alert would come up on your computer saying-although I have those now; I can have my staff run something out. If my associate hasn't addressed a case for 30 days, it will let me know nothing has been done in the file for 30 days, and I'll take a look at it. But other than that, no.

Tr. 26-27, 33-34, 34-35.

{¶ 33} The attorneys stated their actions were reasonable in this case. Tr. 43, 59. Attorney Brown stated it was excusable neglect:

Yes, and I know what you're asking, and yes. In context of that, yes. I think that could we have checked the online docket sooner than we did. And I'll say "we". I'll say I. Could I have checked the online docket sooner than I did? I could have. There was nothing that would have prevented me from doing that. I didn't.
However, the sequencing of events here and the timing is something that I don't think is subject to a hard and fast rule when it comes to electronic dockets. When it comes to those things, I think I've developed a practice where there is a lot of factors. It's what's going on with that particular case at the time. A lot of it has to do with my comfort level and familiarity with that particular clerk's office. So, for example, I practice very infrequently in jurisdictions like Cuyahoga County. Certainly more than Cuyahoga County, but Franklin County is another jurisdiction which has electronic dockets. And in those situations, maybe when you're getting a comfort level at the off-offset of a ca-case, it's a flexible approach.
So is it an attempt by me or our firm to disregard the importance of this? No, it is not.
So yes, I think in that sense, as this is a-it's a mistake. It's a-if you want to talk about the terms of the rule that you're discussing. Excusable neglect, inadvertent mistake, yes, it is.

Tr. 59-60.

{¶ 34} Considering the above, there was a procedure for handling mail, but not necessarily one for checking to see when a final order was issued by a court. Attorney Brown did an internal audit, which is what caught the July 21, 2015 order. In this case, the visiting trial judge was very prompt in ruling on the motion for new trial; the order was issued approximately one week after briefing closed. Tr. 44. The July 21, 2015 order was discovered on August 24, 2015. The Civ.R. 60(B) motion was filed three days later.

{¶ 35} Given the above, the trial court did not abuse its discretion. Although checking the online docket is not mandatory in our district, it is clear Appellant's attorneys knew of the online docket and in other counties checked that docket to keep apprised of cases. Furthermore, a new trial ruling is clearly a final order and it does extend the time for filing an appeal. This is not a situation where a party is blindsided by a final order it was not expecting. A tickler system could have easily been used to check and see if the order was issued. Parties are expected to keep themselves informed on the progress of their case. Moreover, the trial court indicated it did not believe the Attorneys. Appellant did not have Attorney Smith, Attorney Stoneking, and the mail employee testify. The Court found fault in their exclusion and stated, "The Plaintiffs choose what evidence to present and what not to present. This Court finds said evidence to be unconvincing." 2/13/17 J.E. The trial court's reasoning is not unreasonable.

{¶ 36} In conclusion, the law of the case doctrine and the mandate rule were not violated, and the trial court did not abuse its discretion in denying the motion to vacate. The trial court's decision is affirmed.

Donofrio, P.J., concurs.

Waite, J., concurs.


author: PATRICIA ANN BLACKMON, J.:

text:
    CITY OF CLEVELAND, Plaintiff-Appellant v. FRATERNAL ORDER OF POLICE, LODGE 8, Defendant-Appellee
    No. 105648
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 21, 2017
    Barbara A. Langhenry, Director of Law, Cleveland Law Department, William M. Menzalora, Chief Assistant Director of Law, Janeane R. Cappara, Assistant Director of Law, 601 Lakeside Avenue, Room 106, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLANT
    Robert M. Phillips, Joseph D. Mando, Faulkner, Hoffman & Phillips, L.L.P., 20445 Emerald Parkway Dr., Suite 210, Cleveland, Ohio 44135, ATTORNEYS FOR APPELLEE
    BEFORE: Blackmon, J., McCormack, P.J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   PATRICIA ANN BLACKMON, J.:

{¶ 1} The city of Cleveland ("the City") appeals from the trial court's journal entry denying in part and granting in part the City's motion to vacate or modify arbitration award and the Fraternal Order of Police Lodge 8's ("FOP") motion to confirm and enforce arbitration award. The City assigns the following error for our review:

I. The trial court erred to the prejudice of appellant by affirming part of the arbitrator's award because the arbitrator exceeded his powers and also so imperfectly executed them that a mutual, final, and definite award upon the subject matter of the arbitration was not made because he issued an arbitration decision that was arbitrary and capricious, and, thereby, dispensed his own brand of industrial justice.

{¶ 2} Having reviewed the record and pertinent law, we affirm the decision of the trial court. The apposite facts follow.

{¶ 3} On November 29, 2012, over 100 police officers in 58 patrol cars as well as several unmarked police cars were involved in a 23-minute pursuit of a speeding vehicle, which culminated in the shooting deaths of Timothy Russell and Malissa Williams. Two investigations of the incident revealed that 13 Cleveland police officers fired more than 137 bullets into the vehicle, when the pursuit ended in a parking lot in East Cleveland. According to the investigations, Russell and Williams were unarmed. At least 25 of the officers involved in the pursuit, nine of whom fired their weapons, were under the command of Cleveland Police Sergeants Randolph Daley, Patricia Coleman, Brian Chetnik, and Matthew Putnam (collectively "the Grievants"). The investigations determined that, in general, the Grievants failed to supervise their subordinates and failed to comply with various police department policies.

{¶ 4} On June 11, 2013, the City suspended without pay Coleman for 20 days; Daley for 15 days; and Putnam for ten days. On June 13, 2013, the FOP filed grievances pursuant to the collective bargaining agreement ("the CBA") between the City and the FOP on behalf of Coleman, Daley, and Putnam requesting the following relief: that the suspensions be rescinded; that the sergeants be "made whole" for time lost due to the suspensions; that disciplinary records related to the suspensions be removed from the sergeants' files; and that "the division" publicly notify the City's police force that the sergeants have been cleared of the allegations.

{¶ 5} On July 18, 2013, the City suspended Chetnick without pay for ten days. On July 22, 2013, the FOP filed a grievance pursuant to the CBA on behalf of Chetnik, requesting relief identical to that requested for Coleman, Daley, and Putnam.

{¶ 6} On August 7, 2013, the City denied all four grievances, finding that "[m]anagement acted in a proper manner and no clause of the [CBA] was violated." The FOP invoked the arbitration provision of the CBA, and on March 19 and 20, 2014, an arbitrator held hearings on the grievances.

{¶ 7} On May 24, 2015, the arbitrator issued an award finding that the City did not have "just cause" to discipline any of the Grievants. The award revoked Coleman, Daley, Putnam, and Chetnik's suspensions in full and permanently removed "all departmental records of these respective suspensions" from the City's files. On August 18, 2015, the City initiated this case by filing a motion to vacate or modify the arbitration award. In turn, the FOP filed an application to confirm and enforce the arbitration award. On March 14, 2017, the court issued an opinion enforcing the arbitration award in part and vacating the award in part. Specifically, the court granted the City's motion to vacate the award regarding the removal and destruction of the disciplinary records from the Grievants' files and granted the FOP's motion to enforce the award revoking the suspensions.

{¶ 8} Put another way, the court upheld the arbitrator's conclusion that the City did not have just cause to take any disciplinary action against the Grievants. In addition, the court found that the arbitrator lacked authority to purge the Grievants' disciplinary files. It is from this order that the City appeals.

Standard of Review

{¶ 9} Courts review arbitration awards under the limited standard found in R.C. 2711.10, which states, in pertinent part, as follows: "the court of common pleas shall make an order vacating the award * * * if * * * (D) The arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." Generally, an arbitrator has not exceeded his or her authority when an arbitration award "draws its essence" from the underlying contract. Bd. of Edn. of Findlay City School Dist. v. Findlay Edn. Assn. , 49 Ohio St.3d 129, 132, 551 N.E.2d 186 (1990). "An arbitrator's award draws its essence from a collective bargaining agreement when there is a rational nexus between the agreement and the award, and where the award is not arbitrary, capricious or unlawful." Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities v. Mahoning Cty. TMR Education Assn. , 22 Ohio St.3d 80, 84, 488 N.E.2d 872 (1986).

{¶ 10} An appellate court's standard regarding arbitration awards is confined to reviewing the trial court order. Orwell Natural Gas Co. v. PCC Airfoils, L.L.C. , 189 Ohio App.3d 90, 2010-Ohio-3093, 937 N.E.2d 609 (8th Dist.2010). "The substantive merits of the original arbitration award are not reviewable on appeal absent evidence of material mistake or extensive impropriety. A de novo review of the merits of the dispute is not within the contemplation of the statute." (Citation omitted.) Id. at ¶ 8.

Analysis

The Arbitration

{¶ 11} Article II, Section 2 of the CBA states that the City has a right to "(e) Suspend, discipline, demote or discharge for just cause, layoff, transfer, assign, schedule, promote, or retain members * * *."

{¶ 12} Article XX, Sections 1 and 2 of the CBA state that FOP members have a right to present a grievance disputing "the disciplining of an employee." If a grievance is not resolved by the parties, the FOP may submit the matter to arbitration. Article XX, Section 4 states the following:

In the event a grievance goes to arbitration, the arbitrator shall have jurisdiction only over disputes arising out of grievances as to the interpretation and/or application and/or compliance with the provisions of this [CBA], including all disciplinary actions and in reaching his decision, the arbitrator shall have no authority (1) to add or subtract from or modify in any way the provisions of this [CBA]; (2) to pass upon issues governed by law; or (3) to make an award in conflict with law.

{¶ 13} During the arbitration in the case at hand, the City alleged that the Grievants failed to supervise their subordinates and failed to comply with various departmental policies, including "failing to determine the location and actions of all patrol officers assigned to them during the * * * pursuit" and shooting. The City specifically refers to the Grievants' failure to use "communication and tracking resources to evaluate and control" the incident.

{¶ 14} The FOP, on the other hand, argued during arbitration that the City did not have "just cause" to discipline the Grievants, as required by Article II, Section 2, Subsection (e) of the CBA. According to the FOP, none of the Grievants had prior disciplinary action taken against them, and they all "held the understanding that they were dealing with mobile active shooters." The FOP further argued that the Grievants acted according to "custom and practice" regarding a vehicle pursuit, and "[t]he physical assets and/or training available to the [Grievants] on November 29, 2012 were deficient or non-existent * * *."

{¶ 15} The arbitrator concluded that, in some instances, the Grievants did not violate department policy, and that, in other instances, malfeasance occurred but was excused "given the exigent circumstances and chaotic incident and its aftermath."

For these reasons, the arbitrator found that the City lacked just cause to discipline the Grievants.

The City's Arguments on Appeal

{¶ 16} On appeal, the City alleges that the "award is clearly beyond the arbitrator's authority, is beyond the essence of the agreement, and denies the parties the benefit of their agreement." As support for its position, the City compares this case to Fraternal Order of Police, Lodge 8 v. Cleveland , 8th Dist. Cuyahoga No. 102565, 2015-Ohio-4188, 2015 WL 5867410, in which this court affirmed the two-year demotion imposed by an arbitrator regarding Cleveland Police Sergeant Michael Donegan for his role in the same November 29, 2012 pursuit. Donegan held the same departmental rank as the Grievants in the case at hand and was also accused of failing to supervise and violating departmental polices during the pursuit. Therefore, according to the City, under the CBA, it is arbitrary and capricious if the Grievants are not subject to the same or similar discipline as Donegan. However, the discipline resulting from the two arbitrations is quite different: Donegan received a two-year demotion with loss of pay and the Grievants in the instant case received no discipline. This, the City argues, is arbitrary and capricious.

{¶ 17} Furthermore, the City argues that the arbitrator's thought process in finding no just cause for discipline was arbitrary and capricious. For example, the arbitrator found that the "systemic failure" of the Cleveland Police Department during this incident should be applied to police members with rank of lieutenant and above, which does not include the Grievants, who are sergeants. In weighing this "escalating authority" argument, the arbitrator found as follows: "I * * * do not choose to lay 'fault' at the feet of Sgt. Coleman or any of the other sergeants reviewed herein for either their judgment or conduct connected with this approximately twenty-five minute vehicle pursuit and apprehension." According to the City, the arbitration award is ripe with biased statements, and the arbitrator dispensed "his own brand of industrial justice."

{¶ 18} For example, the arbitrator concluded the following:

While the [City] is no doubt rankled by the number of responding units and patrolmen who "self-dispatched" themselves to the chase it cannot by shear will affix blame to the [Grievants] for what [their] responding officers undertook on their own. Had this transpired earlier in the platoon's tour for that night and the [Grievants] went on for, say, two (2) or three (3) hours without knowing the whereabouts of [their] charges or the strength of their self-deployment I'd have a different view.

{¶ 19} In addition, as to whether Cleveland Police Deputy Chief Williams issued a particular order at the scene, the arbitrator noted that "I would have appreciated hearing that from Chief Williams." The arbitrator also noted that the Grievants were subject to "a great deal of public scrutiny and media attention" as a result of this incident. The arbitrator concluded that "I cannot escape a fairly pervasive feeling that these disciplinary decisions were designed to play to a different audience rather than to correct and rehabilitate in the labor-management sense."

The FOP's Arguments on Appeal

{¶ 20} The FOP argues on appeal that there is no basis to vacate the arbitration award, because it draws it essence from the CBA and the arbitrator properly reviewed the parties' arguments, facts, and evidence. According to the FOP, the arbitration award "resolved the precise issues that the [p]arties put before [the arbitrator] in accordance with the CBA * * *."

The FOP further argues that the Donegan arbitration outcome-upholding his demotion under similar circumstances-is "completely irrelevant" to the case at hand. Additionally, the trial court's statement that it "likely would have reached a different result and found that some measure of discipline for just cause existed" "has absolutely no bearing on the propriety of the [award in the instant case] whatsoever."

{¶ 21} Upon review, we find that the arbitrator acted within his authority when revoking the Grievants' suspensions. The arbitration concerned disputes over disciplinary actions, which are expressly authorized in the CBA. Thus, the arbitration award "draws its essence" from the CBA. Furthermore, although it may be hard to reconcile a two-year demotion for one actor and no discipline for other actors, we cannot say that this award is arbitrary or capricious. Arbitrary is defined as "founded on prejudice or preference rather than on reason or fact." Black's Law Dictionary 125 (10th Ed.2014). Additionally, capricious means "contrary to the evidence or established rules of law." Id. The arbitrator in the case at hand wrote a detailed rationalization of why, in his opinion, the City failed to show just cause for suspending each of the Grievants.

Were the arbitrator's decision to be subject to reversal because a reviewing court disagreed with findings of fact or with an interpretation of the contract, arbitration would become only an added proceeding and expense prior to final judicial determination. This would defeat the bargain made by the parties and would defeat as well the strong public policy favoring private settlement of grievance disputes arising from collective bargaining agreements.

Goodyear Tire & Rubber Co. v. Local Union No. 220, United Rubber, Cork, Linoleum & Plastic Workers of Am. , 42 Ohio St.2d 516, 330 N.E.2d 703,706 (1975).

{¶ 22} This court has held that "once a reviewing court determines that the arbitrator's award draws its essence from the parties' contract and is not unlawful, arbitrary or capricious, the reviewing court has no authority to vacate the award pursuant to R.C. 2711.10(D)." Marra Constructors, Inc. v. Cleveland Metroparks Sys. , 82 Ohio App.3d 557, 563, 612 N.E.2d 806 (8th Dist. 1993).

{¶ 23} The City and the FOP voluntarily entered into the CBA, and by doing so, agreed to resolve their disputes via binding arbitration. One of the consequences of this choice is that the City's discretion concerning employee discipline is significantly impacted in that arbitration becomes the forum for dispute resolution.

Contracting parties who agree to submit disputes to an arbitrator for final decision have chosen to bypass the normal litigation process. If parties cannot rely on the arbitrator's decision (if a court may overrule that decision because it perceives a factual or legal error in the decision), the parties have lost the benefit of their bargain. Arbitration, which is intended to avoid litigation, would instead become merely a system of "junior varsity trial courts" offering the losing party complete and rigorous judicial review.

(Citation omitted.) Motor Wheel Corp. v. Goodyear Tire & Rubber Co. , 98 Ohio App.3d 45, 52, 647 N.E.2d 844 (8th Dist.1994).

{¶ 24} We understand the sensitivity of the events that took place on November 29, 2012, and we want to stress that the parties bargained away certain rights when they entered the CBA. As a result, the law limits the court's review of arbitration awards at the appellate level, as well as at the trial court level.

{¶ 25} We do, however, agree with the trial court that the arbitrator had no authority under the CBA to order that the Grievants' files regarding these suspensions be removed. Accordingly, the court did not err by enforcing in part and vacating in part the arbitration award in this case.

Prejudgment Interest

{¶ 26} Although the City does not assign a separate error for this issue, it argues that R.C. 1343.03(C) prohibits an award of prejudgment interest and costs in this case, because the FOP failed "to make a good faith effort to settle the case." R.C. 1343.03(C) states that "If, upon motion of any party to a civil action that is based on tortious conduct * * * and in which the court has rendered a judgment, * * * the court determines at a hearing * * * that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case," the court shall award interest.

{¶ 27} However, when the FOP filed a motion for prejudgment and postjudgment interest, it relied on R.C. 1343.03(A), which states as follows: "when money becomes due * * * upon all judgments, * * * the creditor is entitled to interest at the [statutory] rate * * *."

{¶ 28} In the case at hand, the trial court granted the FOP's motion and awarded the Grievants prejudgment and postjudgment interest at the statutory rate.

{¶ 29} Upon review, we find that R.C. 1343.03(A) authorizes the trial court to grant prejudgment interest in an order confirming an arbitration award. See N. Olmsted v. Internatl. Assn., Local 1267 , 8th Dist. Cuyahoga Nos. 91300, 91301, and 91724, 2009-Ohio-960, 2009 WL 547452, ¶ 48-50 ; Handel's Ents. v. Wood , 7th Dist. Mahoning Nos. 04MA238 and 05MA70, 2005-Ohio-6922, 2005 WL 3536475, ¶ 84 ("we find no error with the common pleas court's grant of prejudgment interest despite the fact that it was not first raised to the arbitration panel").

{¶ 30} Accordingly, the City's first assigned error is overruled.

Frivolous Appeal

{¶ 31} The FOP alleges that this appeal is frivolous in violation of App.R. 23 and Loc. App.R. 23(A) and requests attorney fees and costs. This court may order an appellant to pay an appellee's attorney fees and costs upon a determination that an appeal is frivolous under App.R. 23. An appeal is frivolous if it presents no reasonable question for review. State v. G.D. , 8th Dist. Cuyahoga Nos. 104317 and 104328, 2016-Ohio-8148, 2016 WL 7298513, ¶ 25. The FOP argues that the City has "no good faith basis in law from which to appeal," and as a result, this court "must conclude that the City appealed * * * for one or more improper purpose, including delay in enforcement and harassment."

{¶ 32} We find no merit to the FOP's argument, and the request for App.R. 23 sanctions is denied.

{¶ 33} Judgment affirmed.

TIM McCORMACK, P.J., and MELODY J. STEWART, J., CONCUR

      The first investigation was conducted by the Ohio Bureau of Criminal Investigation and the second by the Cleveland Police Department's critical incident review committee.