author: PRESTON, J.

text:
    Gregg S. SANTOMIERI, Plaintiff-Appellee, v. Charles L. MANGEN, Defendant-Appellant.
    NO. 2-17-05
    Court of Appeals of Ohio, Third District, Auglaize County.
    Date of Decision: April 16, 2018
    Royce A. Link for Appellant
    Jonathan S. Zweizig, Troy, for Appellee
   PRESTON, J.

{¶ 1} Defendant-appellant, Charles L. Mangen ("Mangen"), appeals the February 10, 2017 judgment of the Auglaize County Common Pleas Court awarding plaintiff-appellee, Gregg S. Santomieri ("Santomieri"), $53,334.00 in damages under a promissory note executed between Mangen and Santomieri. For the reasons that follow, we affirm.

{¶ 2} Under the terms of the promissory note, Mangen promised to pay Santomieri a single balloon payment of $40,000 on May 6, 2016. (Plaintiff's Ex. 9). On May 20, 2016, Santomieri filed a complaint seeking enforcement of the amount owed on the past-due promissory note, interest, and attorney fees. (Doc. No. 1). On June 16, 2016, Mangen filed an answer to Santomieri's complaint, two counterclaims for fraudulent representation and breach of contract, and a request for attorney fees. (Doc. No. 10). Mangen answered Santomieri's complaint in part by asserting an affirmative defense of want of consideration for the note. (Id. ). On June 22, 2016, Santomieri filed his answer to Mangen's counterclaims. (Doc. No. 15).

{¶ 3} On January 25, 2017, Mangen filed a motion in limine seeking to exclude text messages and proof of the content of text messages exchanged between Mangen and Santomieri. (Doc. No. 27). On January 31, 2017, Santomieri filed a memorandum in opposition to Mangen's motion in limine. (Doc. No. 32). Also on January 31, 2017, Mangen submitted an additional memorandum in support of his motion in limine. (Doc. No. 35). On February 2, 2017, the trial court denied Mangen's motion in limine. (Doc. No. 37).

{¶ 4} Following a bench trial on February 10, 2017, the trial court issued its judgment awarding Santomieri $53,334.00. (Doc. No. 44).

{¶ 5} On March 1, 2017, Mangen filed a notice of appeal. (Doc. No. 51). He raises four assignments of error. For the sake of clarity, we will begin by addressing his second assignment of error, followed by his first, third, and fourth assignments of error.

Assignment of Error No. II

The trial court erred by finding that adequate consideration existed to support a judgment on the promissory note, because agreeing to do what one is already legally bound to do does not constitute adequate consideration.

{¶ 6} Before ruling on the merits of this appeal, we must first consider whether this court has jurisdiction to hear this appeal. Although neither party raised the issue of whether the trial court's judgment entry is reviewable by this court as a final, appealable order, this is a jurisdictional question which we must raise sua sponte. In re Murray , 52 Ohio St.3d 155, 159-160, 556 N.E.2d 1169 (1990), fn. 2 ; Whitaker-Merrell Co. v. Geupel Constr. Co. , 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972).

{¶ 7} Article IV, Section 3(B)(2), of the Ohio Constitution limits our jurisdiction to the review of final orders.

Grieshop v. Hoyng , 3d Dist. Mercer No. 10-06-27, 2007-Ohio-2861, 2007 WL 1663516, ¶ 15. "A final and appealable order must meet the requirements of R.C. 2505.02(B) and, if applicable, Civ.R. 54(B)." Id. , citing Chef Italiano Corp. v. Kent State Univ. , 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989). Under R.C. 2505.02(B)(1), an order is a final, appealable order if it "affects a substantial right in an action that in effect determines the action and prevents a judgment." A "substantial right" is defined as "a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect." R.C. 2505.02(A)(1). Civ.R. 54(B) is implicated in multi-party or multi-claim litigation. Civ.R. 54(B) provides:

When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the same or separate transactions, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Thus, in an ordinary multi-party or multi-claim case, when a trial court's judgment entry affects a substantial right of some but not all parties or determines some but not all claims pending before the trial court, the absence of a Civ.R. 54(B) certification bars an appellate court from entertaining an appeal of the judgment.

{¶ 8} However, there are occasions where a trial court's judgment may be reviewed as a final appealable order despite the fact that some claims appear to be pending before the trial court and in spite of the absence of Civ.R. 54(B) language. For example, "a judgment in an action which determines a claim in that action and has the effect of rendering moot all other claims in the action as to all other parties to the action is a final appealable order pursuant to R.C. 2505.02, and Civ.R. 54(B) is not applicable to such a judgment." Wise v. Gursky , 66 Ohio St.2d 241, 243, 421 N.E.2d 150 (1981).

{¶ 9} In this case, Mangen filed two counterclaims against Santomieri for fraudulent representation and breach of contract. (Doc. No. 10). In its February 10, 2017 judgment entry, the trial court did not expressly dismiss or dispose of Mangen's counterclaims. However, in rendering judgment in favor of Santomieri, the trial court made factual findings and legal conclusions which are inconsistent with a judgment in favor of Mangen on his counterclaims. Thus, we conclude that the trial court implicitly rejected and mooted Mangen's counterclaims and, as such, the trial court's February 10 judgment is reviewable by this court as a final appealable order. See Brookridge Party Ctr., Inc. v. Fisher Foods, Inc. , 12 Ohio App.3d 130, 135, 468 N.E.2d 63 (8th Dist.1983), fn. 4 ; City of Westlake v. Mascot Petroleum Co., Inc. , 8th Dist. Cuyahoga No. 57508, 1990 WL 48960, *2 (Apr. 19, 1990), fn. 1.

{¶ 10} Having concluded that this court has jurisdiction to hear Mangen's appeal, we turn now to the merits of his second assignment of error. In his second assignment of error, Mangen argues that the trial court erred by concluding that the promissory note is supported by consideration. Specifically, Mangen argues that the consideration identified by the trial court-(1) Mangen receiving the benefit of Santomieri proceeding to close the sale of a parcel of real estate Mangen negotiated to purchase from Santomieri under a written purchase contract and (2) Santomieri's forbearance of litigation concerning the parties' respective rights under that written purchase contract-do not constitute consideration for the note.

{¶ 11} " 'When reviewing a civil appeal from a bench trial, we apply a manifest weight standard of review.' " Lump v. Larson , 3d Dist. Logan No. 8-14-14, 2015-Ohio-469, 2015 WL 509674, ¶ 9, quoting San Allen, Inc. v. Buehrer , 8th Dist. Cuyahoga No. 99786, 2014-Ohio-2071, 11 N.E.3d 739, ¶ 89, citing Revilo Tyluka, L.L.C. v. Simon Roofing & Sheet Metal Corp. , 193 Ohio App.3d 535, 2011-Ohio-1922, 952 N.E.2d 1181, ¶ 5 (8th Dist.). " '[A] civil judgment "supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." ' " Id. , quoting Warnecke v. Chaney , 194 Ohio App.3d 459, 2011-Ohio-3007, 956 N.E.2d 908, ¶ 13 (3d Dist.), quoting C.E. Morris Co. v. Foley Constr. Co. , 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

{¶ 12} " ' "[W]hen reviewing a judgment under a manifest-weight-of-the-evidence standard, a court has an obligation to presume that the findings of the trier of fact are correct." ' " Id. at ¶ 10, quoting Warnecke at ¶ 13, quoting State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. " 'The rationale for this presumption is that the trial court is in the best position to evaluate the evidence by viewing witnesses and observing their demeanor, voice inflection, and gestures.' " Id. , quoting Warnecke at ¶ 13, citing Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). " ' "A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court." ' " Id. , quoting Warnecke at ¶ 13, quoting Seasons Coal Co. at 81, 461 N.E.2d 1273. " ' "A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not." ' " Id. , quoting Warnecke at ¶ 13, quoting Seasons Coal Co. at 81, 461 N.E.2d 1273.

{¶ 13} "A promissory note is defined as 'a written promise to pay a certain sum of money at a future time, unconditionally.' " Morgan v. Mikhail , 10th Dist. Franklin Nos. 08AP-87 and 08AP-88, 2008-Ohio-4598, 2008 WL 4174063, ¶ 66, quoting Burke v. State , 104 Ohio St. 220, 222, 135 N.E. 644 (1922). " 'Generally, the holder of a [promissory note] * * * establishes a prima facie case for payment on a note where the note is placed in evidence and the makers' signature(s) is (are) admitted.' " Gallwitz v. Novel , 5th Dist. Knox No. 10-CA-10, 2011-Ohio-297, 2011 WL 303253, ¶ 23, quoting Dryden v. Dryden , 86 Ohio App.3d 707, 711, 621 N.E.2d 1216 (4th Dist.1993), citing R.C. 1303.36(B). See also Konica Minolta Business Solutions, U.S.A., Inc. v. Allied Office Products, Inc. , 724 F.Supp.2d 861, 872 (S.D.Ohio 2010). A party may defend against having to pay under a promissory note by arguing failure or want of consideration for the note. See W. Ohio Colt Racing Assn. v. Fast , 3d Dist. Mercer No. 10-08-15, 2009-Ohio-1303, 2009 WL 737776, ¶ 13, citing Ohio Loan & Discount Co. v. Tyarks , 173 Ohio St. 564, 568, 184 N.E.2d 374 (1962). See also R.C. 1303.33(B) ("The drawer or maker of an instrument has a defense if the instrument is issued without consideration."). However, " '[t]he law presumes the existence of a consideration for a promissory note, and this presumption continues until it is shown that there was none; and the burden of showing this is on the party attacking the note for want of consideration.' " Gallon v. Scouten , 6th Dist. Lucas No. L-06-1168, 2007-Ohio-2957, 2007 WL 1720774, ¶ 17, quoting Dalrymple v. Wyker , 60 Ohio St. 108, 53 N.E. 713 (1899), paragraph three of the syllabus. "[A] claim of a lack of consideration for [a promissory note] is an affirmative defense which must be proved by a preponderance of the evidence." Sur-Gro Plant Food Co., Inc. v. Morgan , 29 Ohio App.3d 124, 129, 504 N.E.2d 445 (12th Dist.1985), citing Riegert v. Weatherholt , 12th Dist. Butler No. CA82-10-0099, 1983 WL 6321, *4 (Nov. 21, 1983).

{¶ 14} We conclude that there is competent, credible evidence supporting the trial court's conclusion that Santomieri is entitled to enforce the promissory note because it is supported by consideration. However, we arrive at this ultimate conclusion for a different reason than relied on by the trial court. See Iams v. DaimlerChrysler Corp. , 174 Ohio App.3d 537, 2007-Ohio-6709, 883 N.E.2d 466, ¶ 60 (3d Dist.) (" 'A judgment by the trial court which is correct, but for a different reason, will be affirmed on appeal as there is no prejudice to the appellant.' "), quoting Bonner v. Bonner , 3d Dist. Union No. 14-05-26, 2005-Ohio-6173, 2005 WL 3111940, ¶ 18.

{¶ 15} It is undisputed that Mangen executed a $40,000 promissory note in favor of Santomieri. (See Feb. 10, 2017 Tr. at 42, 85). Mangen admitted that he signed the promissory note and that he has not paid Santomieri any part of the $40,000. (See id. at 42, 46-47). Therefore, Santomieri established a prima facie case for payment. However, Mangen argued that there was a want of consideration for the note and that, therefore, the note is unenforceable.

{¶ 16} In support of his position, at trial Mangen advanced his version of the circumstances surrounding the execution of the promissory note. According to Mangen, he executed the promissory note in anticipation of receiving a $40,000 loan from Santomieri to finance the purchase of real estate and other goods. (Id. at 44, 52, 54). In other words, Mangen asserted that Santomieri's payment of the $40,000 was the consideration for his promise to pay Santomieri. There is no dispute that Santomieri did not pay Mangen $40,000. (Id. at 115). Thus, Mangen argued that the promissory note is invalid because of a failure of consideration.

There is a difference between a want of consideration and a failure of consideration. Want of consideration is a total lack of any valid consideration * * *. Failure of consideration is the neglect, refusal and failure of one of the * * * parties to do, perform or furnish, * * *, the consideration in substance and in fact agreed upon.

John P. Timmerman Co. v. Hare , 3d Dist. Allen No. 1-03-14, 2003-Ohio-4622, 2003 WL 22039329, ¶ 10, citing Colonial Ins. Co. v. Graw , 102 Ohio App. 430, 438, 129 N.E.2d 491 (8th Dist.1955).

{¶ 17} The trial court rejected Mangen's argument and concluded that Mangen did not demonstrate that there was a failure of consideration for the promissory note. The trial court found that "[Mangen's] allegation that the note was signed in anticipation of a payment of cash from [Santomieri] to him but which he never received is unsupported by any evidence other than his self-serving testimony, and is not believable." (Doc. No. 44).

{¶ 18} After reviewing the record, we conclude that there is competent, credible evidence supporting the conclusion that Mangen did not meet his burden of proving by a preponderance of the evidence that there was a failure of consideration for the promissory note. See Whichard v. Matthews , 8th Dist. Cuyahoga No. 98689, 2013-Ohio-1892, 2013 WL 1932909, ¶ 32-33, 39. On numerous occasions, Santomieri's trial counsel highlighted inconsistencies between Mangen's testimony at trial and Mangen's statements at deposition. (See, e.g. , Feb. 10, 2017 Tr. at 60-65, 153-155). Further, some of the explanations Mangen offered for why he supposedly signed the promissory note were dubious at best:

[Mangen's Counsel]: Why'd you sign the promissory note?
[Mangen]: I thought I was helping [Santomieri] out.
[Mangen's Counsel]: How was it helping him out for him to loan you the forty thousand bucks?
[Mangen]: How's it helping him out? He would get money. He needed cash. He told me he needed cash.

(Id. at 133-134). The trial court was in the best position to assess Mangen's credibility in testifying about his agreement with Santomieri; this court will not cast doubt on the trial court's conclusion that Mangen's testimony was not believable. See Seasons Coal Co. , 10 Ohio St.3d at 80, 461 N.E.2d 1273.

{¶ 19} Moreover, when subjected to cross-examination, Santomieri testified unequivocally that he never agreed to pay Mangen $40,000 to help Mangen purchase a second parcel of real estate:

[Mangen's Counsel]: And you didn't offer to loan him forty thousand dollars ($40,000.00) so he could do both deals.
[Santomieri]: Never.
* * *
[Mangen's Counsel]: He never said to you, "I need forty thousand dollars ($40,000.00) cash to buy the other property because I already backed out of this deal?"
[Santomieri]: No. Never once. Never came out of his mouth. He never asked myself or my wife ever for any money, ever.

(Feb. 10, 2017 Tr. at 95, 112).

{¶ 20} Finally, a series of text messages exchanged between Mangen and Santomieri submitted at trial support the conclusion that Mangen failed to meet his burden of proving that there was a failure of consideration for the promissory note. In the text messages, Mangen admitted that he understood that the due date on the $40,000 promissory note was approaching and that he wished he "had it just lying around." (Plaintiff's Ex. 16). Mangen also detailed his attempts to refinance his house so that he could pay Santomieri. (Id. ). However, Mangen never objected to Santomieri's requests for payment by arguing that Santomieri had not paid the $40,000 purportedly agreed to as consideration for the promissory note. (See id. ). Furthermore, there are no text messages from Mangen in the series asking Santomieri to pay him the $40,000 or questioning why Santomieri had not yet paid. (See Plaintiff's Exs. 15, 16, 17). For his part, Mangen testified that he never sent any communications to Santomieri inquiring about the expected $40,000 payment. (Feb. 10, 2017 Tr. at 54-55).

{¶ 21} For these reasons, the trial court's conclusion that Santomieri is entitled to enforce the promissory note is not against the manifest weight of the evidence.

{¶ 22} Mangen's second assignment of error is overruled.

Assignment of Error No. I

The trial court erred by enforcing an oral agreement rather than a written real estate purchase agreement where the terms of the written purchase agreement were not ambiguous and the terms of the oral agreement directly contradicted the written agreement.

Assignment of Error No. III

The trial court erred by resorting to parol evidence to allow for the modification of an unambiguous written contract, and by allowing for the modification of a written contract without the mutual assent of all parties to the written contract.

Assignment of Error No. IV

The trial court erred by not finding that a waiver or merger by deed occurred when the purchase price under a written real estate purchase agreement was paid at closing in exchange for a deed.

{¶ 23} In his first assignment of error, Mangen argues that by enforcing the promissory note, the trial court ultimately enforced the terms of an oral real estate purchase agreement instead of an unambiguous written agreement covering the same subject matter. In his third assignment of error, Mangen contends that, in enforcing the promissory note, the trial court effectively permitted the modification of an unambiguous written real estate purchase contract through the use of parol evidence and without the assent of all parties to the written agreement. Finally, in his fourth assignment of error, Mangen argues that the trial court erred by enforcing the promissory note because any claim Santomieri had to receiving the $40,000 was waived when Santomieri tendered a deed to real estate he sold to Mangen under a separate written real estate purchase agreement.

{¶ 24} Mangen's first, third, and fourth assignments of error are premised on a faulty understanding of the trial court's judgment. Mangen correctly notes that the trial court found that Santomieri and Mangen initially entered into a verbal agreement for Santomieri to sell Mangen a parcel of real estate for $140,000. (Doc. No. 44). However, Mangen conspicuously omits the fact that the trial court also found that two discrete agreements were ultimately used to accomplish the transaction: a $100,000 written real estate purchase contract between Mangen and his wife, Melissa, and Santomieri and a separate, collateral $40,000 oral agreement between Mangen and Santomieri that was eventually committed to writing in the form of the promissory note. (Id. ). Thus, in enforcing the promissory note against Mangen, the trial court was not enforcing an oral agreement in preference to and in contravention of the clear terms of a written contract; it was enforcing a promissory note in addition to a separate written contract. As such, Mangen's arguments under his first, third, and fourth assignments of error are erroneous.

{¶ 25} Mangen's first, third, and fourth assignments of error are, therefore, overruled.

{¶ 26} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

ZIMMERMAN and SHAW, JJ., concur.

      Shortly after he filed the notice of appeal, Mangen filed for bankruptcy in the United States Bankruptcy Court for the Northern District of Ohio. (See Doc. No. 129). As a result, Mangen's appeal was stayed on April 4, 2017. This court lifted the stay of appeal on November 15, 2017.

      From Mangen's appellate brief, it is unclear whether he raises four assignments of error or five assignments of error. His third assignment of error presents two separate issues which he discusses under different headings in his brief. Given that Mangen consolidated these issues into a single assignment of error and that our overall analysis is the same regardless of whether we treat the two issues as composing a single assignment of error or separate assignments of error, we regard Mangen's brief as raising just four assignments of error.

      The version of events Mangen promoted at trial is at odds with Mangen's original assertion in his counterclaim that he signed the note because he anticipated difficulties in obtaining bank financing for the purchase of Santomieri's property which never materialized. (See Doc. No. 10).


source: Caselaw Access Project

author: KLATT, J.

license: Public Domain

text:
    James W. SLATER, Admr., Plaintiff-Appellee/[Cross-Appellant],
    [Grubb & Associates, LPA, Intervenor-Appellant/Cross-Appellee], v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, Defendant-Appellee/[Cross-Appellee].
    No. 17AP-453
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on April 17, 2018
    On brief: Edward L. Gilbert Co., LPA, and Edward L. Gilbert, Akron, for plaintiff-appellee. Argued: Edward L. Gilbert.
    On brief: Grubb & Associates, LPA, Natalie F. Grubb, Medina, and Mark E. Owens, Cleveland, for intervenor-appellant. Argued: Mark E. Owens.
    DECISION
   KLATT, J.

{¶ 1} Intervenor-appellant, Grubb & Associates, LPA ("Grubb"), appeals a judgment of the Court of Claims of Ohio that awarded Grubb $3,000 in attorney fees. Plaintiff-appellee, James W. Slater, administrator for the estate of Michael Ferrara, Jr. ("the Estate"), cross appeals from the same judgment. For the following reasons, we reverse the trial court's judgment.

{¶ 2} While Michael Ferrara, Jr. was imprisoned at the Ross Correctional Institution, another inmate, Logan Murphy, attacked and killed him. Michael Ferrara, Jr.'s parents, Michael Ferrara, Sr. and Louise Ferrara, hired Grubb to open an estate for Michael Ferrara, Jr. and to pursue a wrongful death action against the Ohio Department of Rehabilitation and Correction ("ODRC"). On January 19, 2013, the Ferraras entered into a contingency retainer agreement with Grubb. According to that agreement, Grubb would collect a contingency fee of 35 to 40 percent of any amount the Ferraras recovered from ODRC. If the Ferraras recovered nothing, then they would "not be indebted to [Grubb] for either costs or legal fees." (Intervenor's Ex. A at 2.) The agreement also provided, "Client grants attorney a lien on all claims in which attorney represents client under this agreement. The lien shall cover any sums due and owing to attorney at the termination of attorney's services and will attach to any money or property recovered by client."Id.

{¶ 3} After Grubb secured the Ferraras as clients, a paralegal drafted and submitted a public records request to ODRC seeking records related to Michael Ferrara, Jr. and Murphy, as well as prison policies and personnel. Grubb employees reviewed the records received from ODRC and forwarded a copy of those records to the Ferraras. Additionally, a Grubb associate attorney talked with a prosecutor regarding the criminal case against Murphy. That associate also emailed with a local reporter about articles the reporter wrote about the death of Michael Ferrara, Jr. Grubb employees passed along information and documents uncovered through these communications to the Ferraras. Finally, Grubb engaged a litigation consultant to "evaluate case strengthes [sic]/weaknesses; advise of who to depose, etc." (Intervenor's Ex. H at 7.)

{¶ 4} In September 2014, the Ferraras terminated their attorney-client relationship with Grubb and hired Edward L. Gilbert Co., LPA ("Gilbert") instead. Soon thereafter, Gilbert opened an estate for Michael Ferrara, Jr. and, as attorney for the Estate, filed a wrongful death action against ODRC in the Court of Claims. Six months after commencement of the action, Grubb moved to intervene in order to pursue a charging lien. Representing itself as former counsel for the Estate, Grubb asserted "an attorney's charging lien for fees earned and costs in [its] representation of Plaintiff in this case." (Notice of Attorney's Charging Lien and Mot. to Intervene for Limited Purpose of Pursuing the Attorney's Charging Lien at 1.) By virtue of the charging lien, Grubb sought payment of $6,713.43 in fees and costs, plus 1.5 percent interest, from any judgment or settlement proceeds due to the Estate. The Court of Claims denied Grubb's motion, holding that Grubb had no interest in the action unless and until a judgment or settlement created a fund from which Grubb could collect its fees and costs.

{¶ 5} After extensive discovery, a trial on the wrongful death action began in September 2016. During trial, the parties reached a settlement. Grubb then filed a renewed motion to intervene in order to assert a charging lien. In the motion, Grubb again represented itself as former counsel for the Estate and asserted a charging lien for fees and costs accrued during its representation of the Estate in the wrongful death action.

{¶ 6} In response to Grubb's motion, the Estate pointed out that Grubb had represented the Ferraras, not the Estate. Thus, Grubb had not done any legal work for the Estate and, consequently, could not seek payment from settlement proceeds to be paid to the Estate. The Estate also contended that no enforceable charging lien existed because Grubb had not helped to create the settlement reached between the Estate and ODRC. Grubb did not participate in opening an estate for Michael Ferrara, Jr., nor in initiating or prosecuting the litigation against ODRC. Moreover, in accomplishing those tasks, Gilbert neither relied upon the material and information Grubb had generated during its representation of the Ferraras nor used the litigation consultant Grubb had hired.

{¶ 7} While Grubb's motion to intervene was pending, the Estate and ODRC submitted an executed settlement agreement to the Court of Claims. The parties also submitted a copy of the Cuyahoga County Probate Court's entry approving the settlement and setting the distribution of the settlement funds. In that entry, the probate court ordered payment of $60,000 in attorney fees for the legal services that Slater & Zurz, LLP ("Slater") and Gilbert rendered with respect to the wrongful death action. The probate court also addressed the question of Grubb's charging lien. The "Settlement Distribution Compilation" attached to the entry stated:

Attorney Natalie Grubb of Grubb & Associates has filed an attorney's charging lien for "$6,713.43, plus 1.5% interest per month, per retainer, from September, 2014, totaling $9,520.08" in the Estate's wrongful death litigation in the Ohio Court of Claims. From its attorney fees awarded herein, Slater & Zurz, LLP and Edward L. Gilbert Co., LPA will indemnify and hold the Estate harmless from and pay any fees, costs and expenses finally determined to be owed by the Estate for said charging lien.

The entry reiterated that "Slater & Zurz, LLP and Edward L. Gilbert Co., LPA will indemnify and hold the Estate harmless from and pay any fees, costs and expenses finally determined to be owed by the Estate to Grubb & Associates, LPA." (Entry Approving Settlement and Distribution of Wrongful Death and Survival Claims at 2.)

{¶ 8} The Court of Claims noted the filing of the settlement agreement and scheduled a hearing on the issue of the charging lien in an entry dated December 16, 2016. Approximately one month later, the Court of Claims issued an entry approving and confirming the settlement agreement and dismissing the wrongful death action. The entry also ordered that the settlement warrant of $150,000, made payable to the Estate, be sent to Gilbert.

{¶ 9} At the February 22, 2017 hearing regarding the charging lien, Natalie Grubb testified and introduced documentary evidence. After considering the evidence, the trial court determined that the benefit that Grubb's work conferred upon the settlement outcome did not support its demand for $6,713.43, plus interest. The trial court found, instead, that Grubb was entitled to recover on the basis of quantum meruit the amount of $3,000.

{¶ 10} Grubb now appeals the trial court's judgment, and it assigns the following errors:

[1.] The Trial Court Erred and Abused Its Discretion in Awarding to Intervenor-Appellant Less Than The Fees Owed, As Secured By Its Attorney Charging Lien.
[2.] The Trial Court Erred in Using a Quantum Meruit Analysis to Determine Reasonable Attorney's Fees Owed to Intervenor-Appellant When There Is An Enforceable Attorney Charging Lien Supported By An Express Contract.

{¶ 11} The Estate cross appeals, and it assigns the following errors:

[1.] The Trial Court Did Not Have Subject-Matter Jurisdiction.
[2.] The Trial Court erred when it Granted Grubb's Motion to Intervene.
[3.] The Trial Court erred when it found that Grubb is entitled to recover on the basis of quantum meruit in the amount of $3,000.00 from the settlement proceeds.

{¶ 12} We will begin our review with the Estate's cross appeal. By its first assignment of error, the Estate argues that the trial court lacked subject-matter jurisdiction to determine whether Grubb had an enforceable charging lien and, if so, the amount due to Grubb. We disagree.

{¶ 13} " 'Subject-matter jurisdiction of a court connotes the power to hear and decide a case upon its merits' and 'defines the competency of a court to render a valid judgment in a particular action.' " Cheap Escape Co. v. Haddox, L.L.C. , 120 Ohio St.3d 493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 6, quoting Morrison v. Steiner , 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972). Because a court without subject-matter jurisdiction lacks the power to adjudicate the merits of a case, parties may challenge jurisdiction at any time during the proceedings. Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11. Whether a trial court possessed subject-matter jurisdiction is a question of law, which an appellate court considers de novo. John Roberts Mgt. Co. v. Obetz , 188 Ohio App.3d 362, 2010-Ohio-3382, 935 N.E.2d 493, ¶ 8 (10th Dist.).

{¶ 14} Probate courts are courts of limited jurisdiction and, consequently, they may only exercise that authority granted to them by statute and the Ohio Constitution. In re Guardianship of Hollins , 114 Ohio St.3d 434, 2007-Ohio-4555, 872 N.E.2d 1214, ¶ 11. R.C. 2101.24 delineates the jurisdiction of probate courts. As relevant to this case, that statute states:

[T]he probate court shall have exclusive jurisdiction over a particular subject matter if both of the following apply:
(a) Another section of the Revised Code expressly confers jurisdiction over that subject matter upon the probate court.
(b) No section of the Revised Code expressly confers jurisdiction over that subject matter upon any other court or agency.

R.C. 2101.24(A)(2)(a) and (b). This provision applies to the distribution of proceeds resulting from the settlement of a wrongful death action given the dictates of R.C. 2125.02 and 2125.03.

{¶ 15} Pursuant to R.C. 2125.02(A)(1), "a civil action for wrongful death shall be brought in the name of the personal representative of the decedent for the exclusive benefit" of the decedent's next of kin. The personal representative may settle the wrongful death action only "with the consent of the court making the appointment" of the personal representative. R.C. 2125.02(C). Subsequent to settlement, that same court determines how to distribute the settlement funds. R.C. 2125.03. No other statute expressly confers jurisdiction over the distribution of wrongful death settlement funds to another court or agency.

{¶ 16} As used in R.C. 2125.02 and 2125.03, the term "personal representative" means either the executor or administrator of the decedent's estate. Ramsey v. Neiman , 69 Ohio St.3d 508, 512, 634 N.E.2d 211 (1994). Probate courts appoint executors and administrators. R.C. 2113.01 ; 2113.05; 2113.06. Therefore, the probate court that appointed the personal representative has exclusive jurisdiction to order the distribution of proceeds resulting from the settlement of a wrongful death action. State Bur. of Workers' Comp. v. Mal-Sarkar , 8th Dist. No. 101642, 2015-Ohio-1025, 2015 WL 1255850, ¶ 16 ; Comer v. Bench , 2d Dist. No. 19229, 2003-Ohio-2821, 2003 WL 21267232, ¶ 15 ; see Sup.R. 70(B) and (C) (stating that the probate court "shall retain jurisdiction over the settlement, allocation, and distribution of the [wrongful death and survival] claims," and "[c]ounsel fees shall be subject to approval by the [probate] court").

{¶ 17} Probate courts have broad authority to act with regard to matters within their jurisdiction. State ex rel. Chester Twp. v. Grendell , 147 Ohio St.3d 366, 2016-Ohio-1520, 66 N.E.3d 683, ¶ 24. According to R.C. 2101.24(C), "[t]he probate court has plenary power at law and in equity to dispose fully of any matter that is properly before the court, unless the power is expressly otherwise limited or denied by a section of the Revised Code." Thus, with limited exception, R.C. 2101.24(C) endows probate courts with the authority to take whatever action is necessary to fully adjudicate any matter properly before them. In re Cletus P. McCauley & Mary A. McCauley Irrevocable Trust , 5th Dist. No. 2013CA00237, 2014-Ohio-3489, 2014 WL 3936444, ¶ 43 ; In re Estate of Boone , 190 Ohio App.3d 799, 2010-Ohio-6269, 944 N.E.2d 307, ¶ 37 (7th Dist.) ; Bishop v. Bishop , 188 Ohio App.3d 98, 2010-Ohio-2958, 934 N.E.2d 420, ¶ 12, (4th Dist.).

{¶ 18} Given this plenary power, a probate court exercising its jurisdiction to distribute wrongful death settlement proceeds has the authority to determine the amount of fees and costs, if any, owed to the various attorneys claiming recompense from those proceeds. In re Kinross , 84 Ohio App.3d 335, 340, 616 N.E.2d 1128 (1st Dist.1992) (holding that the probate court had subject-matter jurisdiction over the fee dispute between the different counsel engaged to prosecute a wrongful death action that resulted in settlement). See In re Guardianship of Jadwisiak , 64 Ohio St.3d 176, 593 N.E.2d 1379 (1992), paragraph one of the syllabus ("A probate court, in order to maintain control over any personal injury settlement entered into on behalf of a ward under its protection, has subject matter jurisdiction over the entire amount of settlement funds, which includes attorney fees to be drawn therefrom."); Waterman v. Elk & Elk Co., LPA , 96 Ohio App.3d 772, 776, 645 N.E.2d 1326 (9th Dist.1994) (holding that the probate court tasked with approving the settlement of an action for personal injury to a ward possessed subject-matter jurisdiction to decide the fee dispute between the ward's former and current counsel). In the usual case, such authority is necessary for the probate court to fully distribute the settlement funds. Logically, a probate court cannot determine the specific amounts due to the various claimants without first determining how much is owed to the attorneys seeking payment from the settlement funds.

{¶ 19} In the case at bar, the Cuyahoga County Probate Court, as the court that appointed James W. Slater as administrator, possessed exclusive jurisdiction over the distribution of the settlement proceeds. Exercising its broad authority to accomplish that distribution, the probate court awarded $60,000 in attorney fees to Slater and Gilbert, and required Slater and Gilbert to pay Grubb for the fees and costs owed it under the charging lien. Although the probate court did not determine the validity of Grubb's charging lien or the amount owed to it, the court did not need to do so to completely distribute the settlement proceeds. The probate court relieved itself of the obligation to decide the issues surrounding Grubb's alleged charging lien by lifting the burden of satisfying the charging lien from the Estate and imposing it, instead, on Slater and Gilbert. This shift in responsibility enabled the probate court to allocate every penny of the settlement funds and negate Grubb's claim to direct payment from those funds. Thus, the probate court fully adjudicated the matter before it, even though it did not resolve the issues related to Grubb's alleged charging lien.

{¶ 20} With the probate court's exercise of jurisdiction completed, the Court of Claims had the necessary jurisdiction to address whether Grubb could collect from Slater and Gilbert the fees and costs it sought via a charging lien. Generally, until a judgment is finally executed, a court retains jurisdiction to hear any motion affecting the judgment, including motions seeking enforcement of an alleged charging lien. Fire Protection Resources, Inc. v. Johnson Fire Protection Co. , 72 Ohio App.3d 205, 209, 594 N.E.2d 146 (6th Dist.1991). Here, the Court of Claims retained jurisdiction subsequent to the entry of the probate court's distribution order because it had to approve the settlement and dismiss the wrongful death action. See R.C. 2743.15(A) (requiring "the approval of * * * the court of claims * * * [to] settle or compromise any civil action against the state"); L.C.C.R. 9 (implementing R.C. 2743.15(A) and requiring that, if a settlement does not receive the Court of Claims' approval, the matter must be set for trial). The Court of Claims, therefore, had the jurisdiction to consider the issues raised by Grubb's assertion of a charging lien. Indeed, such issues "should be worked out by application to the court holding the fund, and in which the services were rendered." Olds v. Tucker , 35 Ohio St. 581, 584 (1880). Accordingly, we overrule the Estate's first assignment of error.

{¶ 21} By the Estate's second assignment of error, it argues that the Court of Claims erred in granting Grubb's motion to intervene. We disagree.

{¶ 22} Pursuant to Civ.R. 24(A) :

[u]pon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Appellate courts review a decision granting or denying a motion to intervene for an abuse of discretion. State ex rel. N.G. v. Cuyahoga Cty. Court of Common Pleas , 147 Ohio St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728, ¶ 21.

{¶ 23} No statute of this state provides an unconditional right to intervene to enforce a charging lien. Petty v. Kroger Food & Pharmacy , 165 Ohio App.3d 16, 2005-Ohio-6641, 844 N.E.2d 869, ¶ 9 (10th Dist.). In fact, no Ohio statute addresses charging liens in any respect. Id. ; Snider Interests LLC v. Cannata , 8th Dist. No. 103659, 2017-Ohio-85, 2017 WL 122906, ¶ 19 ; Mancino v. Lakewood , 36 Ohio App.3d 219, 223-24, 523 N.E.2d 332 (8th Dist.1987). Therefore, Grubb had to satisfy the requirements of Civ.R. 24(A)(2) in order to intervene as a matter of right.

{¶ 24} Under Civ.R. 24(A)(2), a moving party must demonstrate: (1) it has an interest relating to the property or transaction that is the subject of the action; (2) it is so situated that the disposition of the action may, as a practical matter, impair or impede its ability to protect its interest; (3) its interest is not adequately represented by the existing parties; and (4) it moved to intervene in a timely manner. Petty at ¶ 8. A court should liberally construe these requirements to permit intervention. Dept. of Adm. Servs. v. State Emp. Relations Bd. , 54 Ohio St.3d 48, 51, 562 N.E.2d 125 (1990).

{¶ 25} In this case, the Estate maintains that Grubb had no interest in the subject matter of the wrongful death action that allowed it to intervene. Grubb claims that it possessed the necessary interest because its charging lien entitled it to a portion of the settlement proceeds. To resolve this argument, we must examine the law regarding charging liens.

{¶ 26} Under Ohio common law, an attorney who obtains a judgment or other monies for his client through his services can assert a charging lien against the fund obtained. Kisling, Nestico & Redick, LLC v. Progressive Max Ins. Co. , 8th Dist. No. 105287, 2017-Ohio-8064, 2017 WL 4423008, ¶ 13 ; Mathews v. E. Pike Local School Dist. Bd. of Edn. , 4th Dist. No. 12CA832, 2013-Ohio-4438, 2013 WL 5532747, ¶ 20 ; Petty at ¶ 11 ; First Bank v. Roslovic & Partners, Inc. , 10th Dist. No. 03AP-332, 2004-Ohio-2717, 2004 WL 1172885, ¶ 41 ; Mancino at 223-24, 523 N.E.2d 332. A charging lien is:

a claim or right to ask for the intervention of the court for [an attorney's] protection, when, having obtained a judgment for his client, he finds that there is a probability of the client depriving him of his interest in the fruits of that judgment. The lien of an attorney upon a judgment is an equitable lien, and is upheld simply upon the theory that his services and skill produced it.

Walcutt v. Huling , 5 Ohio App. 326, 331 (10th Dist.1913), aff'd , 92 Ohio St. 518, 112 N.E. 1087 (1915). By means of a charging lien, "an attorney, by whose labor and at whose expense a judgment has been obtained for his client, [has] an interest in that judgment which the law will regard and protect." Id.

{¶ 27} The Supreme Court of Ohio first addressed charging liens in 1880, when it determined that an attorney promised payment upon a favorable judgment had "such a relation to [the monetary award to the client] by reason of the services rendered in securing it, that a court of equity, in the exercise of its power over the fund, would be fully warranted in directing a reasonable compensation to be paid out of it." Olds , 35 Ohio St. at 583. The Supreme Court elaborated further two years later, stating that:

an attorney may have a claim upon the fruits of a judgment or decree which he has assisted in obtaining, or upon a sum of money which he has collected, and under some circumstances courts will aid him in securing or maintaining such claim. Thus he will be protected in retaining his fee out of money which he has collected for his client.

Diehl v. Friester , 37 Ohio St. 473, 477 (1882). This early precedent culminated with Cohen v. Goldberger , 109 Ohio St. 22, 141 N.E. 656 (1923), where the Supreme Court held that:

[t]he right of an attorney to payment of fees earned in the prosecution of litigation to judgment, though usually denominated a lien, rests on the equity of such attorney to be paid out of the judgment by him obtained, and is upheld on the theory that his services and skill created the fund.

Id. at paragraph one of the syllabus.

{¶ 28} As reflected in these early cases, Ohio courts generally enforced a charging lien against a monetary judgment awarded to a client after an attorney successfully litigated a case on the client's behalf. However, more recent precedent recognizes that a charging lien may also attach to settlement proceeds secured by an attorney's efforts. Ohio Willow Wood Co. v. Alps S., LLC , S.D.Ohio No. 2:04-cv-1223, 2017 WL 4217153 (Sept. 19, 2017) ; Kisling, Nestico & Redick at ¶ 15 ; In re Guardianship of Chambers , 6th Dist. No. S-07-014, 2007-Ohio-6881, 2007 WL 4464962, ¶ 7. Additionally, under the appropriate circumstances, an attorney may recover on a charging lien even if the client discharged the attorney prior to the creation of the fund from which the attorney seeks payment. Ohio Willow Wood Co. ; Filius v. Outdoor Sports Headquarters, Inc. , S.D.Ohio No. C-3-90-358, 1995 WL 1612532 (May 18, 1995) ; Cuyahoga Cty. Bd. of Commrs. v. Maloof Properties Ltd. , 197 Ohio App.3d 712, 2012-Ohio-470, 968 N.E.2d 602, ¶ 17 (8th Dist.).

{¶ 29} Whether attained by judgment or settlement, a fund must exist for a charging lien to arise. In re Durkay , 9 B.R. 58, 61 (Bankr.N.D.Ohio 1981) ; Texlon Corp. v. Smart Media of Delaware, Inc. , 9th Dist. No. 22543, 2005-Ohio-6223, 2005 WL 3117132, ¶ 7. Under Ohio law, an attorney cannot have a charging lien on a client's cause of action. In re Hronek , 563 F.2d 296, 299 (6th Cir.1977) ; accord Mancino , 36 Ohio App.3d at 224, 523 N.E.2d 332, quoting 6 Ohio Jurisprudence 3d, Attorneys at Law, Section 183 (1978) (stating that " 'before judgment, an attorney has no lien upon or interest in the cause of action' "). Rather, an attorney can only assert a charging lien after a judgment, settlement, or other fund-creating event. Petty , 165 Ohio App.3d 16, 2005-Ohio-6641, 844 N.E.2d 869, at ¶ 13 ; Ruttman v. Flores , 8th Dist. No. 66079, 1994 WL 677539 (Dec. 1, 1994)."Without * * * a judgment or fund, there can be no attorney charging lien, as there is nothing upon which to attach this lien and any argument over the legal aspects of that lien become moot." Telxon Corp. at ¶ 8 ; accord In re Richendollar , Bankr.N.D.Ohio No. 04-70774, 2007 WL 1039065 (Mar. 31, 2007) ("[T]here is no [charging] lien until a fund is created in some manner, whether through judgment, arbitration or settlement, upon which the lien can attach.").

{¶ 30} In the case at bar, the Estate and ODRC orally agreed to settle the wrongful death action in late September 2016. By October 7, 2016, the Estate and ODRC had fully executed a written settlement agreement in which ODRC agreed to pay the Estate $150,000 in return for a release of claims. Grubb filed its renewed motion to intervene two weeks later, on October 21, 2016.

{¶ 31} On the date Grubb moved to intervene, the settlement agreement had yet to receive the approval of the Cuyahoga County Probate Court or the Court of Claims. However, we conclude that the executed settlement agreement sufficiently established the settlement fund for Grubb to assert a charging lien on it. Grubb, therefore, possessed the necessary interest in the wrongful death action to allow it to intervene. Accordingly, we overrule the Estate's second assignment of error.

{¶ 32} By the Estate's third assignment of error, it argues that the trial court erred in awarding Grubb any funds by virtue of the asserted charging lien. We agree. Grubb's charging lien fails for two reasons: (1) it asserted the charging lien against the entirety of the settlement proceeds, rather than just those proceeds awarded to its clients; and (2) it failed to show that its services and skill created the settlement fund.

{¶ 33} Using its discretion, a trial court must decide whether to enforce a charging lien based on the facts and circumstances of the particular case. Galloway v. Galloway , 8th Dist., 2017-Ohio-87, 80 N.E.3d 1225, ¶ 22 ; Kerger & Hartman, LLC v. Ajami , 6th Dist, 2015-Ohio-5157, 54 N.E.3d 682, ¶ 23. A reviewing court will not reverse a trial court's decision to allow recovery under a charging lien unless the trial court abuses its discretion. Galloway at ¶ 22 ; Ajami at ¶ 25.

{¶ 34} Charging liens serve as a means by which an attorney may recover his or her fees and costs from a client or former client. First Bank , 2004-Ohio-2717, at ¶ 41 ("A charging lien in favor of an attorney is a lien upon judgment or other proceeds awarded to a client or former client."); Putnam v. Hogan , 122 Ohio App.3d 351, 354, 701 N.E.2d 774 (10th Dist.1997) ("An attorney may * * * have a special, or charging lien upon a judgment, decree, or award obtained for a client."). Thus, if an attorney lacks an attorney-client relationship with a party awarded a judgment or other monies, an attorney has no basis on which to assert a charging lien on the judgment or monies.

{¶ 35} Here, Grubb sought to impose a charging lien on a settlement fund awarded to the Estate, which Grubb never represented, despite its representations to the contrary. Consequently, at least superficially, Grubb did not have grounds to claim a charging lien on the settlement fund. Grubb, however, contends that it could assert a charging lien on the settlement fund because the Ferraras, its clients, were statutory beneficiaries and ultimately entitled to the settlement proceeds.

{¶ 36} Under Ohio law, the proceeds from a settlement of the wrongful death action are the property of the statutory beneficiaries. State ex rel. Goldberg v. Mahoning Cty. Probate Court , 93 Ohio St.3d 160, 164, 753 N.E.2d 192 (2001) (stating that proceeds from a wrongful death action are "the actual property of the statutory beneficiaries" and are part of the decedent's estate "in a limited or qualified sense only"). Here, therefore, the four statutory beneficiaries-the Ferraras and Michael Ferrara, Jr.'s two brothers-owned the settlement proceeds. Because Grubb had only represented two of the four statutory beneficiaries, it could not assert a charging lien on the entirety of the settlement fund. Such a charging lien cannot exist because it would wrongfully require two non-clients to contribute to the payment of Grubb's fees and costs. Absent an attorney-client relationship with all four statutory beneficiaries or the Estate, Grubb could not recover its fees and costs through a charging lien on the whole settlement fund.

{¶ 37} Grubb's charging lien also fails due to the negligible impact of the legal work it provided. As we explained above, an attorney's right to collect fees and costs through a charging lien "rests on the equity of such attorney to be paid out of the judgment by him obtained, and is upheld on the theory that his services and skill created the fund." Cohen , 109 Ohio St. 22, 141 N.E. 656 at paragraph one of the syllabus. Thus, a court will only exercise its equitable powers to enforce a charging lien if an attorney demonstrates that his services and skill created the fund from which he seeks payment. Petty , 165 Ohio App.3d 16, 2005-Ohio-6641, 844 N.E.2d 869, at ¶ 11 ; First Bank at ¶ 50.

{¶ 38} Importantly, an attorney cannot recover on a charging lien merely because the fund at issue would not exist but for his work. Petty at ¶ 20 ; First Bank at ¶ 50. This court repudiated the "but for" test because "any one participant in a combined legal effort, no matter how remote their contribution, could stretch a 'but for' standard to invoke a charging lien." First Bank at ¶ 50. Instead of adopting the broader "but for" test, we strictly applied the standard set forth in Cohen : whether the attorney created the fund at issue with his service and skills. Id. ; accord Mathews , 2013-Ohio-4438, at ¶ 21 ("Courts have strictly applied the requisites spelled out in the syllabus of Cohen , noting that this interpretation is preferable to a 'but for' test, which would allow even minimal or remote contribution to justify a charging lien."); Maloof Properties , 197 Ohio App.3d 712, 2012-Ohio-470, 968 N.E.2d 602, at ¶ 16 (same).

{¶ 39} Here, Grubb mainly engaged in pre-complaint fact finding and document gathering. Neither Grubb nor the litigation consultant it hired participated in the actual litigation of the wrongful death action. According to Gilbert, nothing Grubb accomplished contributed to the prosecution of the wrongful death action or the negotiation of the settlement. Given the inconsequential nature of Grubb's involvement, we cannot conclude that Grubb created the settlement fund. Therefore, equity does not support allowing Grubb to recover from the settlement fund through the asserted charging lien. Accordingly, we sustain the Estate's third assignment of error.

{¶ 40} By Grubb's two assignments of error, it complains about the amount of attorney fees and costs awarded to it. In sustaining the Estate's third assignment of error, we have determined that the trial court erred in granting Grubb any payment out of the settlement fund. Thus, our ruling on the Estate's third assignment of error renders moot Grubb's assignments of error, and we will not rule upon them.

{¶ 41} For the foregoing reasons, we overrule the Estate's first and second assignments of error, and we sustain the Estate's third assignment of error. Our ruling on the Estate's third assignment of error moots Grubb's two assignments of error. We reverse the judgment of the Court of Claims of Ohio.

Judgment reversed.

SADLER and BRUNNER, JJ., concur.

      The Cuyahoga County Probate Court appointed James W. Slater as administrator for the estate of Michael Ferrara, Jr. on November 14, 2014. The Estate filed the wrongful death action on December 11, 2014.

      Such authority does not extend to resolving fee-sharing disputes, which must be referred to mediation or arbitration. In re Estate of Southard , 192 Ohio App.3d 590, 2011-Ohio-836, 949 N.E.2d 1049, ¶ 25 (10th Dist.).


author: ANITA LASTER MAYS, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Earron Raymond LEE, Defendant-Appellant
    No. 105537
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 19, 2018
    Edward M. Heindel, 400 Terminal Tower, 50 Public Square, Cleveland, Oh 44113, ATTORNEY FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Andrea N. Isabella, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: Laster Mays, J., Keough, P.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   ANITA LASTER MAYS, J.:

{¶ 1} Defendant-appellant Earron Raymond Lee ("Lee") appeals his convictions and asks this court to reverse his convictions and remand to the trial court for further proceedings. We affirm.

{¶ 2} Lee was found guilty of two counts of aggravated robbery, a first-degree felony, in violation of R.C. 2911.01(A)(1) ; four counts of robbery, a second-degree felony, in violation of R.C. 2911.02(A)(1) and (2) ; two counts of robbery, a third-degree felony, in violation of R.C. 2911.02(A)(3) ; one count of kidnapping, a first-degree felony, in violation of R.C. 2905.01(A)(2) ; and two counts of petty theft, a first-degree misdemeanor, in violation of R.C. 2913.02(A)(1). Each count, with the exception of the two petty theft counts, contained a one-and three-year firearm specification. The trial court merged the aggravated robbery and robbery counts, and the state elected to have Lee sentenced on just the aggravated robbery counts. The trial court sentenced Lee to a total of 14-years imprisonment and advised Lee that he would be placed on postrelease control for five years following his prison term.

I. Facts

A. Voir Dire

{¶ 3} Lee exercised his right to a jury trial. During voir dire, the state excused one of the African-American jurors. Lee's counsel challenged the state's request and stated, "[s]o, judge, before I get to mine, I'll just make a Batson challenge in the sense that there's two African-American jurors out of 22, and number 12 is African-American." (Tr. 485.) The trial court replied, "[a]ll right. Does the State of Ohio wish to place neutral reasons for excusing juror number 12?" (Tr. 486.) The state answered the trial court by stating,

Yes. It's not his race. It's the fact that as a pastor he's been involved with the criminal justice system before. He's been here for sentencings. He is involved. He's involved at the juvenile detention center. He's an advocate for victims, both victims or defendants. And the fact that he's assisted family members that were accused of crimes.

(Tr. 486.) To which the trial court replied, "Okay. So for those neutral reasons I'll deny the Batson Challenge." (Tr. 486.)

B. Trial

{¶ 4} On May 14, 2016, Liam McDonald ("McDonald"), a pizza delivery driver for Marco's Pizza, testified that he went to deliver a pizza to a Cleveland Heights address. After parking his car and exiting the vehicle, he approached the residence and was confronted by Lee. McDonald asked if Lee ordered a pizza, but Lee did not respond and instead pointed a small gun at McDonald. Two other men approached McDonald and surrounded him. Lee demanded that McDonald get on the ground and hand over his keys and wallet. As McDonald hesitated, Lee pressed the gun to McDonald's head and stated, "someone is going to get popped." (Tr. 532.) McDonald threw his keys, the pizza, and his cell phone on the ground. Lee took the pizza and McDonald's keys and drove away in McDonald's vehicle. No one took his cell phone so McDonald called his boss Gregory Garbaloff ("Garbaloff") to report the incident. Garbaloff called 911. Police officers from the Cleveland Heights Police Department arrived and took McDonald's statement. During a photo array conducted by a blind administrator, McDonald identified one man with 50 percent certainty and Lee with 60 percent certainty.

{¶ 5} On May 18, 2016, Mark Churchill ("Churchill"), a pizza delivery driver for Pizza Hut, testified that he went to deliver a pizza to another Cleveland Heights address. As Churchill approached the residence, Lee confronted him with a gun and told Churchill to "drop everything." (Tr. 793.) Churchill quickly dropped everything in his hands, including the pizza and his car keys. He then ran down the street. Lee pursued Churchill, but stopped after another car turned onto the street. Churchill was able to flag down a police cruiser and explain what happened. The police officer went back to the crime scene.

{¶ 6} Lee's codefendant Bernie Burkhalter III ("Burkhalter") testified at trial that he and Lee planned and executed both robberies. Burkhalter stated that he, Lee, and another man decided to rob a pizza deliveryman. On May 14, 2016, from his cell phone, Lee called the order and then proceeded down the street to wait for the pizzas to arrive. Once McDonald arrived, Lee confronted him with a small, black gun, pointed it at McDonald, and threatened to shoot him. Burkhalter picked up the pizzas and ran back to the house where Lee eventually arrived. Burkhalter testified that on May 18, 2016, he and Lee planned another robbery of a Pizza Hut delivery driver. Lee placed the order on his phone. Lee and Burkhalter approach Churchill, and Lee pointed a gun and told Churchill to drop everything. The deliveryman ran away, and Lee started chasing him. Burkhalter again picked up the pizzas and ran back to the house where he met Lee.

{¶ 7} The three officers that responded to the May 14, 2016 robbery testified. Officer Antoine Danford testified that he located McDonald's stolen, unoccupied vehicle around the corner from the robbery. The keys were still in the ignition, and the vehicles were searched prior to being towed. Officer Trevor Harris testified that he collected fingerprints, DNA swabs, and other evidence from the vehicle. Sergeant Michael D'Amico testified that the fingerprints lifted from the stolen vehicle that belonged to Rashad Patterson, a friend of Lee.

{¶ 8} Officer Jemond Riffe ("Officer Riffe"), the police officer who responded to the May 18, 2016 robbery, testified that he spoke to Churchill, who recounted how he was robbed at gunpoint. Officer Riffe went back to the crime scene and located a receipt for a Pizza Hut delivery order. There was a phone number on the receipt, and Officer Riffe called the number. He heard a voicemail message saying, "This is Earron's phone." (Tr. 747.) Also Detective Michael Reese ("Detective Reese") investigated the phone number and discovered that it was associated with Lee. Detective Reese located Lee's residence, which was in close proximity to both robberies. A search was conducted of Lee's residence, and a fresh Pizza Hut box was located in the basement. A search was conducted at Burkhalter's residence. The police located a pizza warmer bag. Burkhalter's mother voluntarily gave the police two BB guns.

{¶ 9} Lee testified that Burkhalter used Lee's cell phone to order the pizzas, and that he was not involved in the robberies. At the conclusion of the trial, the jury found Lee guilty and he was sentenced to 14 years imprisonment. As a result, he filed this appeal assigning five errors for our review.

I. Lee was denied his right to the effective assistance of counsel as guaranteed by Article I, Section 10 of the Ohio Constitution and the Sixth and Fourteenth Amendments to the United States Constitution;
II. The convictions for the firearm specification were against the manifest weight of the evidence and not supported by sufficient evidence;
III. The convictions for the underlying charges of aggravated robbery, robbery, kidnapping and theft, were against the manifest weight of the evidence and not supported by sufficient evidence due to a lack of identification testimony;
IV. The trial court erred when it overruled Lee's Batson challenge regarding the peremptory challenge of Juror No. 12 ; and
V. The trial court committed plain error when it granted the State's motion for joinder and tried both indictments together.

II. Ineffective Assistance of Counsel

A. Standard of Review

{¶ 10} The Sixth Amendment of the United States Constitution guarantees the right to assistance of counsel because counsel plays an important role in our court system. "Counsel * * * can also deprive a defendant of the right to effective assistance, simply by failing to render adequate 'legal assistance.' " Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), citing Cuyler v. Sullivan , 446 U.S. 335, 345-350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

In order to substantiate a claim of ineffective assistance of counsel, the appellant must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defendant so as to deprive him of a fair trial. State v. Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial scrutiny of defense counsel's performance must be highly deferential. Strickland at 689 [104 S.Ct. 2052]. The defendant has the burden of proving his counsel rendered ineffective assistance. State v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 223. The test is stated in the conjunctive, so the failure to demonstrate either prong is dispositive.

State v. Dennis , 2017-Ohio-4437, 93 N.E.3d 277, ¶ 17.

B. Law and Analysis

{¶ 11} In Lee's first assignment of error, he argues that he was denied his right to effective assistance of counsel because of counsel's failure to object to the joinder of two separate robberies into one trial and counsel also failed to file a motion to suppress an unreliable out-of-court identification.

" 'Decisions on strategy and trial tactics are granted wide latitude of professional judgment, and it is not the duty of a reviewing court to analyze trial counsel's legal tactics and maneuvers.' " State v. Edgerson , 8th Dist. Cuyahoga No. 101283, 2015-Ohio-593 [2015 WL 758992], ¶ 6, quoting State v. Quinones , 8th Dist. Cuyahoga No. 100928, 2014-Ohio-5544 [2014 WL 7186212], ¶ 18 ; see also State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101 ("debatable trial tactics" do not constitute ineffective assistance of counsel). A reviewing court, therefore, "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland at 689 [104 S.Ct. 2052] ; State v. May , 8th Dist. Cuyahoga No. 102482, 2015-Ohio-4275, 49 N.E.3d 736.

State v. Pridgett , 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, 2016 WL 762671, ¶ 36.

{¶ 12} Lee argues that he was prejudiced by the joinder of the two indictments because he was characterized as a person who regularly robs pizza delivery drivers. Crim.R. 8(A) states,

[t]wo or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.

Crim.R. 14 states,

[i]f it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires.

{¶ 13} " 'The law favors joining multiple offenses in a single trial if the requisites of Crim.R. 8(A) are fulfilled. If it appears, however, that the defendant would be prejudiced by the joinder, a trial court may grant a severance under Crim.R. 14.' " Pridgett at ¶ 38, quoting State v. Ferrell , 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, 2014 WL 4924034, ¶ 38. " 'A defendant is not prejudiced by joinder where the joined offenses are "simple and direct, so that a jury is capable of segregating the proof required for each offense.' " " Ferrell at ¶ 39, quoting State v. Wilson , 2d Dist. Montgomery No. 20910, 2005-Ohio-6666, 2005 WL 3446275, quoting State v. Fletcher , 2d Dist. Clark No. 2003-CA-62, 2004-Ohio-4517, 2004 WL 1908336, ¶ 41.

In deciding a claim of ineffective assistance of counsel, we must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington , 466 U.S. 668 at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. "[T]hat is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Citation omitted.) Id. "Trial strategy, including debatable trial tactics, does not constitute ineffective assistance of counsel." State v. Benitez , 8th Dist. Cuyahoga No. 98930, 2013-Ohio-2334 [2013 WL 2470685], ¶ 31, citing State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 111. Indeed, the decision to file a motion for separate trials or to proceed with the joinder of the offenses may be a matter of counsel's trial strategy. Benitez at ¶ 31, citing State v. Bishop , 8th Dist. Cuyahoga No. 53278 [1988 WL 5996, at *3-4], 1988 Ohio App. LEXIS 246, *9 (Jan. 21, 1988).

Id. at ¶ 40.

{¶ 14} Lee's contention that the jurors might view him as an individual that likes to rob pizza deliverymen is without merit. The record reveals that the offenses were of the same or similar character; constituted a common scheme or plan; or was part of a course of criminal conduct. The record also reveals that trial counsel had discussed the motion to sever with Lee and, as a trial tactic, decided against filing the motion.

STATE: Just to clarify. The state has filed a motion for joinder for indictment. I don't know if any ruling has been made on that.
COURT: Yeah. It came up a little earlier. My understanding is there's no objection.
COUNSEL: There's no objection. I have discussed it with my client, and as a strategy we have decided not to oppose that motion.

(Tr. 122-123.)

{¶ 15} After a review of the record, we are not convinced that Lee's trial counsel erred in not filing a motion to sever. Counsel clearly stated that joining the indictments was an element of his trial strategy. Additionally, Lee has not demonstrated that he was prejudiced by counsel's decision. Lee was found not guilty of one of the counts of kidnapping. Therefore, it can be determined that the evidence presented to the jury was simple and direct. The jury was capable of separating the proof required for each offense.

{¶ 16} Lee also contends that he was denied effective assistance of counsel because his trial counsel did not file a motion to suppress what he considers an unreliable out-of-court identification and because a blind administrator did not conduct the photographic line-up.

"[S]ince the decision falls within matters of trial strategy, counsel is not required to file a motion to suppress evidence in every case." State v. Price , 8th Dist. Cuyahoga No. 90308, 2008-Ohio-3454 [2008 WL 2688095], ¶ 19. As a result, trial counsel is not per se ineffective when it fails to file a motion to suppress. State v. Madrigal , 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52 (2000), citing Kimmelman v. Morrison , 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Counsel's failure to file a motion to suppress constitutes ineffective assistance only when the defendant can show that the motion "would have 'had a reasonable probability of success' and affected the outcome of the case." State v. Patterson , 8th Dist. Cuyahoga No. 105265, 2017-Ohio-8318 [99 N.E.3d 970], ¶ 35, quoting State v. Sanchez [, 8th Dist. Cuyahoga No. 103078, 2016-Ohio-3167 [2016 WL 3019644], ¶ 26 ].

State v. Frierson , 2018-Ohio-391, 105 N.E.3d 583, ¶ 17.

{¶ 17} "An out-of-court identification must be suppressed if "the confrontation was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under all the circumstances." Id. at ¶ 18. Lee contends that McDonald's identification was unreliable because he picked out six different people during his identification process. The record reveals that the suggestive nature of McDonald's identification referred to another individual and not Lee. McDonald explained that he chose people with certainty from 50 percent to 70 percent. He also knew that three individuals were involved in the robbery. Five were chosen with 50 percent certainty. One individual was chosen with 70 percent certainty. In fact, McDonald chose Lee as a participant in the robbery with a 60 percent degree of certainty. (Tr. 732.) We therefore do not find that McDonald's identification was unreliable under all the circumstances.

{¶ 18} " R.C. 2933.83(B)(1) provides that a blind administrator must be used for a photo lineup unless impracticable. In the event it is impracticable to use a blind administrator, then the reason for the impracticability must be documented. R.C. 2933.83(B)(2)." State v. Lennon , 8th Dist. Cuyahoga No. 104344, 2017-Ohio-2753, 2017 WL 1957124, ¶ 66. The record reveals that a blind administrator was present during the photographic line-up. Lee has not demonstrated that his counsel's performance was defective or that the motion to suppress had a reasonable probability of success. Lee's assertions are without merit.

{¶ 19} Lee's first assignment of error is overruled.

III. Sufficiency and Manifest Weight of Evidence

A. Standard of Review

{¶ 20} When an appellate court reviews a claim of insufficient evidence, "the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, citing State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. "The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact." State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.

{¶ 21} In reviewing a claim challenging the manifest weight of the evidence, the question to be answered is whether,

"there is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt." (Emphasis sic.) State v. Getsy (1998), 84 Ohio St.3d 180, 193-194, 1998-Ohio-533, 702 N.E.2d 866, citing State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132, syllabus. In conducting this review, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the jury " 'clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229.

{¶ 22} "Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence." State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

Weight of the evidence concerns the inclination of the greater amount of credible evidence , offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief ." (Emphasis added.)

Id. , quoting Black's Law Dictionary 1594 (6th Ed.1990).

{¶ 23} Also,

[w]hen a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a " 'thirteenth juror' " and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs v. Florida , 457 U.S. [31] at 42, 102 S.Ct. [2211] at 2218, 72 L.Ed.2d [652] at 661 [ (1982) ]. See also, State v. Martin , 20 Ohio App. 3d 172, 175, 485 N.E.2d 717, 720-721 (1983). ("The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.").

Thompkins at 387, 678 N.E.2d 541.

B. Law and Analysis

{¶ 24} In Lee's second and third assignments of error, he contends that his convictions for the firearm specifications, aggravated robbery, robbery, kidnapping, and theft were against the manifest weight of the evidence and not supported by sufficient evidence.

The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598 [2009 WL 2186608], ¶ 12. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Thompkins , 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541 (1997).

Pridgett , 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, 2016 WL 762671, at ¶ 15.

{¶ 25} Lee was convicted of two counts of aggravated robbery, in violation of R.C. 2911.01(A)(1) ; four counts of robbery, in violation of R.C. 2911.02(A)(1) and (2) ; two counts of robbery, in violation of R.C. 2911.02(A)(3) ; one count of kidnapping, in violation of R.C. 2905.01(A)(2) ; and two counts of petty theft, a first-degree misdemeanor, in violation of R.C. 2913.02(A)(1). Each felony count contained a one- and three-year firearm specification, in accordance with R.C. 2941.141(A) and 2941.145(A). The statutes read as follows:

(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it.

R.C. 2911.01(A)(1).

(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under the offender's control;
(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;
(3) Use or threaten the immediate use of force against another.

R.C. 2911.02(A)(1), (2), and (3).

(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:
(2) To facilitate the commission of any felony or flight thereafter.

R.C. 2905.01(A)(2).

(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent.

R.C. 2913.02(A)(1).

Imposition of a one-year mandatory prison term upon an offender under division (B)(1)(a)(iii) of section 2929.14 of the Revised Code is precluded unless the indictment, count in the indictment, or information charging the offense specifies that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense. The specification shall be stated at the end of the body of the indictment, count, or information, and shall be in substantially the following form:
"SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The Grand Jurors (or insert the person's or the prosecuting attorney's name when appropriate) further find and specify that (set forth that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense.)"

R.C. 2941.141(A).

Imposition of a three-year mandatory prison term upon an offender under division (B)(1)(a)(ii) of section 2929.14 of the Revised Code is precluded unless the indictment, count in the indictment, or information charging the offense specifies that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense. The specification shall be stated at the end of the body of the indictment, count, or information, and shall be stated in substantially the following form:
"SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The Grand Jurors (or insert the person's or the prosecuting attorney's name when appropriate) further find and specify that (set forth that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense)."

R.C. 2941.145(A)

{¶ 26} First, Lee challenges the sufficiency and weight of the evidence with respect to the firearm specification. He specifically points to the fact that it was not proven beyond a reasonable doubt that Lee possessed a firearm. The police officers never found a firearm, only BB guns. However, the victims testified that Lee stated, when he robbed them, that he had a gun and they saw what looked like a gun. Neither witness could be sure if Lee possessed a real or a fake gun.

The firearm specification is described in R.C. 2941.145, which states in pertinent part: "the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense."

State v. Watkins , 8th Dist. Cuyahoga No. 84288, 2004-Ohio-6908, 2004 WL 2931008, ¶ 12.

{¶ 27} In defining the meaning of the term "firearm," this court uses R.C. 2923.11(B) :

(1) "Firearm" means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. "Firearm" includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable.
(2) When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm.

{¶ 28} Lee argues that there is no evidence that a firearm was used.

The case law interpreting this statute has evolved over the years. Initially, in State v. Gaines , 46 Ohio St.3d 65, 545 N.E.2d 68 (1989), the Ohio Supreme Court held that "prior to imposition of an additional term of three years' actual incarceration for possession of a firearm during the commission of a felony, the state must prove beyond a reasonable doubt that the firearm was operable or could readily have been rendered operable at the time of the offense." Id. , syllabus.
The [c]ourt then modified its ruling in State v. Murphy , 49 Ohio St.3d 206, 551 N.E.2d 932 [1990], when it clarified how the state could prove a firearm specification. Such proof can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. ( State v. Gaines , 46 Ohio St.3d 65, 545 N.E.2d 68 [1989], modified.)" Murphy , syllabus.
More recently, the [c]ourt added circumstantial evidence as a basis for proof: "A firearm enhancement specification can be proven beyond a reasonable doubt by circumstantial evidence. In determining whether an individual was in possession of a firearm and whether the firearm was operable or capable of being readily rendered operable at the time of the offense, the trier of fact may consider all relevant facts and circumstances surrounding the crime, which include any implicit threat made by the individual in control of the firearm . ( State v. Murphy , 49 Ohio St.3d 206, 551 N.E.2d 932 [1990], State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 [1991], and State v. Dixon , 71 Ohio St.3d 608, 646 N.E.2d 453 [1995], followed; R.C. 2923.11 [B][1] and [2], construed and applied.)" State v. Thompkins , 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541 (1997), paragraph one of the syllabus, emphasis added.
The courts have differed in interpreting how much circumstantial evidence is enough to prove the existence of an operable firearm in the commission of a crime. Numerous cases support a conviction if the defendant states he has a gun and will use it, even if no one sees the gun and the gun is never produced at trial and therefore cannot be tested to determine whether it is operable. State v. Jeffers , 143 Ohio App.3d 91, 757 N.E.2d 417 (2001) ; State v. Haskins , 6th Dist. Erie No E-01-016, 2003-Ohio-70 [2003 WL 99572].
Additionally, case law supports conviction when a defendant flashes what appears to be a gun, even if it is never proved to be a gun or to be operable. State v. Dixon , 71 Ohio St.3d 608, 646 N.E.2d 453 (1995) ; State v. Nelson , 2d Dist. Montgomery No. 14775 [1995 WL 491084], 1995 Ohio App. LEXIS 3367 (Aug. 18, 1995). This is so even if the offender never states that he will use the gun if the victim does not comply with his orders; "the implicit threat of brandishing a firearm so as to threaten a victim is sufficient to establish its operability under R.C. 2923.11(B)."
State v. McDade , 11th Dist. Lake No. 97-L-059 [1998 WL 682360, at *13], 1998 Ohio App. LEXIS 4533, at *33 (Sept. 25, 1998).

Watkins , 8th Dist. Cuyahoga No. 84288, 2004-Ohio-6908, 2004 WL 2931008, ¶ 13-17.

{¶ 29} The record reveals that Lee flashed what appeared to be a gun during both robberies. In fact, the gun was put to McDonald's head and Lee threatened to shoot him. Lee brandished the gun during the Churchill robbery and ordered him to drop everything. Both McDonald and Churchill believed that Lee had a real gun and behaved in a way that is consistent with them believing that he would discharge that gun. The facts in Watkins are similar to the facts in this case. The victim in Watkins testified that he believed he was being held at gunpoint. "First, the victim does not have to be '100 percent' certain that the unseen object is a gun. Second, the victim's actions in acquiescing to being robbed indicates * * * his belief that he was being held up at gunpoint. Under these circumstances, his inability to actually see the gun is not dispositive." (Citations omitted.) Id at ¶ 23. "The testimony of the victim is sufficient to support the conviction." Id. at ¶ 24. After reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, we determine that the jury did not lose its way and create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Additionally, we find that after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

{¶ 30} Lee's second assigned error is overruled.

{¶ 31} Lee also argues that his other convictions for aggravated robbery, robbery, kidnapping, and theft were not supported by sufficient evidence and were against the manifest weight of the evidence because the two victims were unable to positively identify him with 100 percent certainty.

Although we review credibility when considering the manifest weight of the evidence, we are cognizant that determinations regarding the credibility of witnesses and the weight of the testimony are primarily for the trier of fact. State v. Bradley , 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765 [2012 WL 2355778], ¶ 14, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able "to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony." State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury may take note of any inconsistencies and resolve them accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver , 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958 [2003 WL 723225], ¶ 21, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

State v. Torres , 8th Dist. Cuyahoga No. 99596, 2013-Ohio-5030, 2013 WL 6047869, ¶ 93.

{¶ 32} Although the witnesses were not 100 percent certain when they identified Lee in a photo identification, there was other evidence that led to Lee's conviction. Lee's cell phone number was on the pizza receipt. The police, during their investigation, found a fresh pizza box in Lee's home. Moreover, Burkhalter, Lee's codefendant, testified that he and Lee planned and executed the robbery of McDonald and Churchill. Burkhalter also testified that Lee held the gun.

Thus, after weighing all of the evidence and all reasonable inferences, considering the credibility of witnesses, and determining whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered, we conclude that it did not.

Id. at ¶ 100. Additionally, we find that the evidence was sufficient to support the convictions. Lee's third assignment of error is overruled.

IV. Batson Challenge

{¶ 33} Lee, who is African-American, contends that the trial court erred when it overruled his Batson challenge regarding the peremptory challenge of an African-American juror.

"Whenever a party opposes a peremptory challenge by claiming racial discrimination, the duty of the trial court is to decide whether granting the strike will contaminate jury selection through unconstitutional means. The inquiry, therefore, is whether the trial court's analysis of the contested peremptory strike was sufficient to preserve a constitutionally permissible jury-selection process. A trial court's finding of no discriminatory intent will not be reversed on appeal absent a determination that it was clearly erroneous. The trial court, in supervising voir dire, is best equipped to resolve discrimination claims in jury selection, because those issues turn largely on evaluations of credibility." Martin v. Nguyen , 8th Dist. Cuyahoga No. 84771, 2005-Ohio-1011 [2005 WL 563763], ¶ 9.

State v. Saunders , 2016-Ohio-292, 58 N.E.3d 470 (8th Dist.), ¶ 6.

{¶ 34} Once defense counsel challenges a juror's dismissal based on the juror's race, it is incumbent on the court to conduct a Batson hearing to decide if there was merit to defense counsel's challenge.

"In order to state a prima facie case of purposeful discrimination under Batson v. Kentucky [, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ], an accused must demonstrate: (1) that members of a recognized racial group were peremptorily challenged; and (2) that the facts and circumstances raise an inference that the prosecutor used the peremptory challenge to exclude the jurors on account of their race."

Id. , quoting Martin v. Nguyen , 8th Dist. Cuyahoga No. 84771, 2005-Ohio-1011, 2005 WL 563763, ¶ 6.

{¶ 35} The trial court conducted a Batson hearing and determined that the state did not exclude the juror because of his race.

" 'A trial court's finding of no discriminatory intent will not be reversed on appeal unless clearly erroneous.' State v. Pickens , 141 Ohio St. 3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 64, citing State v. Frazier , 115 Ohio St. 3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 64. This deferential standard arises from the fact that step three of the Batson inquiry turns largely on the evaluation of credibility by the trial court. See State v. Herring , 94 Ohio St.3d 246, 257, 2002-Ohio-796, 762 N.E.2d 940, citing Batson , 476 U.S. at 98, 106 S.Ct. 1712, 90 L.Ed.2d 69."

State v. Pierce , 2017-Ohio-8578, 100 N.E.3d 860, ¶ 28 quoting State v. Murray , 8th Dist. Cuyahoga No. 102779, 2016-Ohio-107, 2016 WL 193497, ¶ 22. After reviewing the record, we do not find that the trial court's decision was erroneous. The state's reason that it dismissed juror number 12 was because the juror was a pastor and had been involved in the criminal justice system as an advocate for victims and defendants. The state's response was as follows:

Yes. It's not his race. It's the fact that as a pastor he's been involved with the criminal justice system before. He's been here for sentencings. He is involved. He's involved at the juvenile detention center. He's an advocate for victims, both victims or defendants. And the fact that he's assisted family members that were accused of crimes.

(Tr. 486.) We find that the trial court did not err in accepting the prosecutor's response as a race-neutral reason for dismissing the juror. We find that Lee has not demonstrated a prima facie case of purposeful discrimination under Batson .

{¶ 36} Lee's fourth assignment of error is overruled.

V. Joinder

A. Standard of Review

{¶ 37} "This court reviews a trial court's decision on joinder for an abuse of discretion. State v. Grimes , 8th Dist. Cuyahoga No. 94827, 2011-Ohio-4406 [2011 WL 3860503], ¶ 15, citing State v. Segines , 8th Dist. Cuyahoga No. 89915, 2008-Ohio-2041 [2008 WL 1903997]." State v. Wilson , 2016-Ohio-2718, 51 N.E.3d 676 (8th Dist.), ¶ 21. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

"An unreasonable decision is one that is unsupported by a sound reasoning process; an arbitrary attitude is an attitude that is without adequate determining principle not governed by any fixed rules or standard; and unconscionable may be defined as affronting the sense of justice, decency, or reasonableness." State v. Hill , 10th Dist. Franklin No. AP-177, 2010-Ohio-6121 [2010 WL 5141707], ¶ 34.

State v. Hollins , 8th Dist. Cuyahoga No. 103864, 2016-Ohio-5521, 2016 WL 4480654, ¶ 17.

B. Law and Analysis

{¶ 38} Lee asserts that the trial court committed plain error when it granted the state's motion for joinder and tried both indictments together. Because his counsel did not object, he has waived all but plain error. Caruso v. Leneghan , 8th Dist. Cuyahoga No. 99582, 2014-Ohio-1824, 2014 WL 1775577, ¶ 70.

Under Crim.R. 52(B), notice of plain error is to be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. In order to find plain error under Crim.R. 52(B), it must be determined that, but for the error, the outcome of the trial clearly would have been otherwise. Id. at paragraph two of the syllabus.

State v. Hughes , 8th Dist. Cuyahoga Nos. 98667 and 98668, 2013-Ohio-1550, 2013 WL 1696076, ¶ 25.

"If it appears that a defendant is prejudiced by joinder of offenses, the defendant may move to sever the charges under Crim.R. 14. Lott , 51 Ohio St.3d at 163, 555 N.E.2d 293. Crim.R. 14, relief from prejudicial joinder, provides, in relevant part:
If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. In ruling on a motion by a defendant for severance, the court shall order the prosecuting attorney to deliver to the court for inspection pursuant to Rule 16(B)(1) any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial."

Wilson at ¶ 39.

{¶ 39} Additionally,

[t]he defendant bears the burden of proving (1) his rights were prejudiced and (2) the trial court abused its discretion in denying severance. State v. Brinkley , 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 29, citing [ State v. ] Torres , 66 Ohio St.2d 340, 343, 421 N.E.2d 1288, at syllabus (1981) ; see also State v. LaMar , 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166 (holding that a trial court's decision to deny severance will be reversed only upon a showing that the trial court abused its discretion).

Wilson at ¶ 40.

{¶ 40} Furthermore,

[i]n State v. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, the Ohio Supreme Court explained that there are two ways that the state may rebut a defendant's claim of prejudicial joinder: "First, if in separate trials the state could introduce evidence of the joined offenses as 'other acts' under Evid.R. 404(B), a defendant cannot claim prejudice from the joinder. State v. Lott , 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). Second, the state can refute prejudice by showing that 'evidence of each crime joined at trial is simple and direct.' Id. " [Diar] at ¶ 96.

Wilson , 2016-Ohio-2718, 51 N.E.3d 676, at ¶ 41.

{¶ 41} However,

[u]nder Crim.R. 8(A), two or more offenses may be charged together if the offenses "are of the same or similar character, * * * or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct." In fact, "[t]he law favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses charged 'are of the same or similar character.' " State v. Lott , 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990), quoting Torres , 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). "Joinder is liberally permitted to conserve judicial resources, reduce the chance of incongruous results in successive trials, and diminish inconvenience to the witnesses." State v. Schaim , 65 Ohio St.3d 51, 58, 1992 Ohio 31, 600 N.E.2d 661 (1992). Accord Torres at 343 [421 N.E.2d 1288].

Wilson at ¶ 24.

{¶ 42} In line with what we have stated in Lee's first assignment of error, we hold that the appellant was not denied effective assistance of counsel and that trial court did not commit plain error in granting the state's motion for joinder. It was determined from the record that it was counsel's trial strategy to have a combined trial of the indictments. Therefore, there would not have been an objection. Also, Lee has not directed us to anything in the record that would show that, but for the error, the outcome of the trial would have been different. We find no manifest miscarriage of justice. The trial court did not err when it granted the state's motion for joinder.

{¶ 43} Lee's fifth assignment of error is overruled.

{¶ 44} Judgment is affirmed.

LARRY A. JONES, SR., J., CONCURS; KATHLEEN ANN KEOUGH, P.J., CONCURS IN JUDGMENT ONLY