author: Gwin, P.J.

text:
    Christopher WENDT, et al., Plaintiffs-Appellants v. Judith DICKERSON, et al., Defendants-Appellees
    No. 2017 AP 08 0024
    Court of Appeals of Ohio, Fifth District, Tuscarawas County.
    DATE OF JUDGMENT ENTRY: March 19, 2018
    DAVID BUTZ, 4775 Munson Street N.W., Box 36963, Canton, OH 44735, For Plaintiffs-Appellants.
    STEVEN ANDERSON, 140 Fair Avenue N.W., Box 1014, New Philadelphia, OH 44663, For Defendants-Appellees.
    JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Earle E. Wise, J.
   Gwin, P.J.

{¶ 1} Appellants appeal the June 2, 2017 and July 14, 2017 judgment entries of the Tuscarawas County Court of Common Pleas.

Facts & Procedural History

{¶ 2} In 1928, John R. Dickerson obtained full ownership interest in approximately 82 acres of real property located in Section 20 of Cadiz Township, in Harrison County. Approximately four years later, John R. Dickerson transferred one-half of the property to his wife, Marjorie I. Dickerson. John and Marjorie Dickerson divorced prior to the transfer. On December 17, 1952, John and Marjorie Dickerson jointly transferred their interest in the property to the Pittsburgh Consolidated Coal Company via a warranty deed; however John and Marjorie each retained a one-half interest in all of the oil and gas and the rights to drill and/or explore said oil and gas associated with the property. John and Marjorie transferred the rights to the property's surface, coal, and all other non-oil and gas minerals. Pursuant to the 1952 transaction, the mineral rights were severed from the surface estate.

{¶ 3} John Dickerson passed away on September 7, 1976. His mineral rights to the property were not included in his estate. Marjorie Dickerson passed away on August 24, 1994. Her estate was not probated at the time of her death. The sole heirs of John and Marjorie Dickerson are: Judith Dickerson, Mary Louise Foster, Elaine Harris, Claire Dickerson, Richard Dickerson, Robert Dickerson, Raymond Dickerson, Constance Clark, Deborah Snelson, Misty Engstrom, Ronald Dickerson, John Dickerson, and Wanda Dickerson ("the Dickersons").

{¶ 4} Pittsburgh Consolidated Coal strip-mined and reclaimed the property. In 1997, Pittsburgh Consolidated Coal sold the property to Neil Porter via a limited warranty deed. In 2006, Neil Porter sold the property to plaintiffs-appellants Christopher and Veronica Wendt ("the Wendts") via a survivorship deed. The deed to the property was recorded on April 21, 2006. The deed was subject to the reservation by, "John R. Dickerson and Marjorie I. Dickerson, their heirs and assigns for all of the oil and gas with the right to drill for in Warranty Deed filed for record December 17, 1952 in Volume 133, page 69, Deed Records."

{¶ 5} From 1952 to 2011, the Dickersons took no action related to their mineral rights to the property. In 2011, the Dickersons gave John L. Dickerson a power of attorney to deal with the inherited mineral rights on behalf of all the Dickerson heirs. On February 28, 2011, the Dickersons recorded two documents with the Harrison County Recorder's Office, each entitled, "Affidavit for Transfer of Real Estate Inherited." Each of the affidavits stated the purpose of the affidavit was to obtain a transfer of the above-described premises to the heirs at law of Marjorie/John Dickerson and lists the names, addresses, and portions inherited by each heir. Each affidavit states it transfers, by inheritance, the "undivided one-half interest in all oil and gas contained in and underlying the hereinafter described premises, together with the right to drill for, operate, produce, and market the same." In May of 2011, the Dickersons signed a lease with Chesapeake Exploration LLC for the mineral rights to the property. Chesapeake recorded the lease on November 2, 2011.

{¶ 6} During 2011, the Wendts also sought to lease their mineral rights to the property. The Wendts signed a mineral lease with Chesapeake in the spring of 2011. The lease failed because of the Dickersons' potential interest in the mineral rights.

{¶ 7} On October 11, 2011, the Wendts published a notification of abandonment in the Steubenville Herald-Star newspaper. On October 21, 2011, the Wendts recorded an affidavit of abandonment with the Harrison County Recorder's Office. The affidavit asserted the Wendts owned all the oil and gas rights by the automatic operation of R.C. 5301.56 and stated the "mineral interest previously owned by holders John and Marjorie Dickerson were deemed abandoned pursuant to O.R.C. 5301.56(B) from 1989 to 2006 and vested in the owner of the surface as of March 22, 1992." The Wendts executed a second lease with Chesapeake on October 31, 2011, but the lease was terminated due to the conflict in the mineral rights.

{¶ 8} On December 9, 2011, the Dickersons recorded two claims to preserve mineral interest regarding any mineral interests inherited from Marjorie and John Dickerson with the Harrison County Recorder's Office.

{¶ 9} On February 9, 2012, the Wendts filed a complaint against the Dickersons and Chesapeake Exploration LLC in the Tuscarawas County Court of Common Pleas. The complaint brought nine causes of action: declaratory judgment, quiet title, injunction, slander of title, unjust enrichment/quantum meruit, trespass, negligence/negligence per se, potential interference with business relationship, and constructive trust. The Wendts requested the trial court rule they were the lawful owners of the mineral rights. The Wendts argued that, pursuant to the 1989 version of the Dormant Mineral Act, the mineral rights merged with the surface estate no later than March 22, 1992. The Dickersons filed a counterclaim alleging slander of title and intentional interference with business relationships.

{¶ 10} The Wendts and Dickersons filed competing motions for summary judgment in December of 2012. The Wendts dismissed Chesapeake as a party defendant on January 8, 2013. The trial court granted the Wendts' motion for summary judgment as it pertained to their claim for declaratory judgment, quiet tile, and injunction. The trial court found the 1989 version of the Ohio Dormant Mineral Act ("ODMA") applied and, as such, the mineral rights merged with the surface estate on March 22, 1992. The Wendts were therefore the owners of the mineral rights underlying the surface estate. The trial court found there were genuine issues of material fact as to the Wendts' remaining claims.

{¶ 11} The trial court held a bench trial on the parties' remaining claims. The Wendts dismissed their claims for unjust enrichment and negligence. On January 15, 2014, the trial court issued its judgment entry that found the Wendts and Dickersons were not entitled to judgment on their remaining claims.

{¶ 12} The Dickersons appealed to this Court and raised two assignments of error. They argued that the trial court erred by finding the 1989 version of the ODMA applied to this case and erred in finding the 1989 ODMA was constitutionally applied. In Wendt v. Dickerson , 5th Dist. Tuscarawas No. 2014 AP 01 0003, 2014-Ohio-4615, 2014 WL 5306667, this Court found the trial court correctly determined the 1989 version of the ODMA applied, the mineral rights automatically vested with the surface owners on March 22, 1992, and that the trial court did not err when it found the 1989 ODMA was constitutionally applied to the Dickersons.

{¶ 13} The Dickersons appealed this Court's decision to the Ohio Supreme Court and asserted three propositions of law: (1) the 2006 version of the ODMA controls the vesting of title in a surface owner who did not make a claim for the mineral interests before the 2006 enactment; (2) the 1989 version of the ODMA did not provide mineral owners with the due process of law required under the state and federal constitution; and (3) the ODMA is not now and never was self-executing. The Ohio Supreme Court accepted the appeal, but held the case pending the resolution of several other cases already accepted by the Supreme Court.

{¶ 14} On September 15, 2016, the Ohio Supreme Court reversed this Court's opinion on the authority of Corban v. Chesapeake Exploration, LLC , 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.2d 1089 and Walker v. Shondrick-Nau , 149 Ohio St.3d 282, 2016-Ohio-5793, 74 N.E.3d 427.

{¶ 15} Once the case was returned to the trial court, the trial court granted the Wendts' leave to file a motion for summary judgment relative to constitutional issues. Accordingly, both the Wendts and Dickersons filed motions for summary judgment and responses.

{¶ 16} The trial court issued a judgment entry on June 2, 2017. The trial court found that, in Corban , the Ohio Supreme Court concluded the 2006 version of the ODMA applies to all claims asserted after June 30, 2006 and that the Wendts did not assert their ODMA claims against the Dickersons until after June 30, 2006. Thus, pursuant to Corban , the 2006 version of the ODMA applies in this case. Further, that, pursuant to the majority opinion in Corban , the General Assembly modified only the method and procedure by which the right is recognized and protected and no vested, substantive right is altered. Accordingly, the Wendts' alleged property rights, including a cause of action, are not vested property rights. The trial court found the application of the 2006 ODMA to the Wendts in this case does not constitute the deprivation of the Wendts' property and is constitutional. The trial court overruled the Wendts' motion for summary judgment.

{¶ 17} The trial court issued a second judgment entry on July 14, 2017 on counts one, two, and three. The only issue the trial court addressed in this judgment entry was whether the Wendts could establish a claim to mineral rights under the 2006 ODMA. The trial court first found the Wendts' claim fails under the 2006 ODMA because the mineral rights they sought were not legally "dormant" as provided in the 2006 ODMA because they were subject to a "savings event" of R.C. 5301.56(B)(3) during the preceding twenty years, the two affidavits recorded on February 28, 2011 for the transfer of real estate inherited.

{¶ 18} The trial court next found the Wendts' claims fail under the 2006 ODMA because they did not comply with the notice requirement of the 2006 ODMA as there is no evidence in the record the Wendts ever attempted certified mail service or completed certified mail service before they served the Dickersons by publication.

{¶ 19} Finally, the trial court found the Wendts' claims fail in light of the Ohio Supreme Court's case of Dodd v. Croskey , 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147, which held that a mineral-interest holder's claim to preserve filed pursuant to R.C. 5301.56(H)(1)(a) is sufficient to preclude the mineral interest from being deemed abandoned if filed within sixty days after the notice of the surface owner's intent to declare those interests abandoned. The trial court noted that on October 21, 2011, the Wendts recorded an affidavit of abandonment with the Harrison County Recorder's Office and, on October 11, 2011, published a notification of abandonment in the Steubenville Herald-Star newspaper. Further, on December 9, 2011, the Dickersons recorded two claims to preserve mineral interests and thus, the Dickersons properly preserved their mineral rights. The trial court concluded the Wendts had no legal right to invoke the relief sought in Counts one, two, and three under the 2006 ODMA. The trial court denied the Wendts' motion for summary judgment, granted the Dickersons' motion for summary judgment, and found the legal title to the mineral rights at issue quieted in favor of the Dickersons.

{¶ 20} The Wendts filed an appeal of the June 2 and July 14, 2017 judgment entries of the Tuscarawas County Court of Common Pleas and assign the following as error:

{¶ 21} "I. THE TRIAL COURT ERRED WHEN IT HELD THAT THE RIGHTS CONFERRED BY R.C. 5301.56 (IN EFFECT PRIOR TO JUNE 30, 2006) WERE NOT PROPERTY RIGHTS PROTECTED BY THE UNITED STATES CONSTITUTION.

{¶ 22} "II. THE TRIAL COURT ERRED WHEN IT HELD THAT THE SEVERED MINERAL INTEREST AT ISSUE WAS NOT SUBJECT TO JUDICIAL ABANDONMENT UNDER R.C. 5301.56(B) (IN EFFECT JUNE 30, 2006)."

Summary Judgment Standard

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

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

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

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

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

I.

{¶ 27} In their first assignment of error, the Wendts contend the trial court erred when it held the rights conferred by the 1989 version of the ODMA were not property rights protected by the United States Constitution. Specifically, the Wendts argue they are entitled to have the 1989 ODMA conclusive presumption applied to the reservation confirmed in this litigation because this conclusive presumption and related accrued cause of action are property rights under the Fifth and Fourteenth Amendments to the U.S. Constitution, which cannot be taken without due process and constitute a taking. We disagree with appellants.

{¶ 28} First, a majority of the justices in the Corban case did not utilize the "conclusive presumption" analysis in their decision. 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089. While the three justices joining in the majority opinion opined that, "by providing a conclusive presumption that the mineral interest had been abandoned in favor of the surface owner if the holder failed to take timely action to preserve it, the legislature provided an effective method of terminating abandoned mineral rights through a quiet title action" in the 1989 ODMA, a fourth justice concurred in judgment only. Id. Further, a fifth justice concurred the 1989 ODMA was not self-executing, the severed mineral interest cannot revert to the surface owner absent judicial action, and agreed the 2006 version of the ODMA applied to all claims asserted after June 30, 2006, but wrote separately to note her analysis that the 1989 ODMA was ambiguous regarding what was required for a severed mineral interest to be abandoned. Id.

{¶ 29} Second, even if the Ohio Supreme Court did find the 1989 ODMA created a conclusive presumption, pursuant to the majority's rationale in Corban , the General Assembly did not divest a surface holder of a right to abandoned minerals accrued prior to June 30, 2006. Id. The majority in Corban found the 1989 ODMA was not self-executing and did not automatically transfer ownership of dormant mineral rights by operation of law because a surface holder was required to commence a quiet title action seeking a decree that the dormant mineral interest was deemed abandoned, and, at most, the 1989 ODMA created an evidentiary presumption applied in a quiet title action that these rights would vest if certain conditions were not proven by the mineral owner in a quiet title action. Id. Thus, surface holders lost no property right when the ODMA was amended, as under the 2006 ODMA they were not deprived of the right to bring a cause of action for abandonment through a quiet title or declaratory judgment action. Id. Rather, what changed was the procedural process, including statutory notice and recording procedures, by which mineral rights are deemed abandoned and vested in the surface holder. Id ("The General Assembly has not divested the surface holder of a right to abandoned mineral interests that accrued prior to the effective date of H.B. 288, but, rather, it modified only the method and procedure by which the right is recognized and protected").

{¶ 30} The majority further stated, "as this court has recognized, evidentiary rules (such as the conclusive presumption established by the 1989 law) are procedural in nature, and therefore, changing them does not alter a vested substantive right." Id. As explained by the majority in Corban , the Wendts lost, at most, the benefit of a procedural evidentiary presumption, which does not implicate substantive due process concerns. Id. While the Wendts and the dissent in Corban disagree with this characterization and contend the 1989 ODMA created vested rights in certain property owners that cannot be taken away without running afoul of the U.S. Constitution, we, as an appellate court, are bound to follow the law and decisions of the Ohio Supreme Court, unless or until they are reversed or overruled. State v. Lenior , 5th Dist. Delaware No. 10CAA010011, 2010-Ohio-4910, 2010 WL 3921188 ; Phillips v. Phillips , 5th Dist., 2014-Ohio-5439, 25 N.E.3d 371. The Corban decision has not been reversed or overruled and the Wendts did not attempt to appeal the Ohio Supreme Court's decision in Corban to the United States Supreme Court. Accordingly, we are bound by the Corban decision.

{¶ 31} Further, the Ohio Supreme Court also reversed and remanded this case on the authority of its decision in Walker v. Shondrick-Nau , 149 Ohio St.3d 282, 2016-Ohio-5793, 74 N.E.2d 427, and we are also bound by this decision. In Walker , the Ohio Supreme Court reiterated its ruling from Corban and found the issue of whether the 1989 or 2006 ODMA applies "is resolved by Corban " as Corban held the 2006 version of the ODMA applies to all claims after 2006 alleging that the rights to oil, gas, and other minerals automatically vested in the owner of the surface estate prior to the 2006 amendments. Id. Further, that since there was no record of action being taken by the appellant or his predecessor prior to the effective date of the 2006 amendment to have the mineral rights deemed abandoned under the 1989 version of the ODMA, pursuant to Corban , the 2006 version of the act applies. Id.

{¶ 32} Walker filed a petition for a writ of certiorari with the Supreme Court of the United States. In his petition, Walker made the arguments advanced by the Wendts in this case. Walker argued the dormant mineral interest was abandoned and had vested in him on March 22, 1992, pursuant to the 1989 ODMA; that the 1989 ODMA was self-executing; and that the application of the 2006 ODMA to an already abandoned and vested dormant mineral interest was a violation of the due process clause of the federal constitution. In Walker v. Shondrick-Nau , --- U.S. ----, 137 S.Ct. 824, 196 L.Ed.2d 601 (2017), the United States Supreme Court denied Walker's petition for certiorari. Thus, Walker remains the law in Ohio as it has not been reversed or overruled. In this case, the Wendts' claims were not asserted until 2011. Pursuant to Corban and Walker , the trial court did not err in finding the 2006 ODMA applies to this case and in determining the application of the 2006 ODMA against the Wendts does not violate the Due Process Clause of the U.S. Constitution.

{¶ 33} Additionally, in this case, even if the 1989 ODMA did confer upon the Wendts a substantive right in a conclusive evidentiary presumption, the Wendts due process rights were not violated because their property rights never vested. The Ohio Supreme Court has held that a right which is not absolute, "but is dependent for its existence upon the action or inaction of another is not basic or vested, and deprivation thereof does not constitute a deprivation of property" and if there is no deprivation of a vested property right, it is not necessary to discuss the question of due process.

Hatch v. Tipton , 131 Ohio St. 364, 2 N.E.2d 875 (1936). In this case, any property rights the Wendts had never vested, as their action in common pleas court was not filed prior to the effective date of the 2006 ODMA on June 30, 2006, but instead was filed in 2012. Thus, the Wendts' due process rights were not violated because they had, at most, a contingent right that never vested.

{¶ 34} The Wendts also argue their Fifth Amendment rights were violated as a taking occurred regarding their property rights when the ODMA was amended in 2006. We disagree. First, there was no federal or state taking when the 2006 ODMA went into effect, as the Ohio Supreme Court held in Corban that the 1989 ODMA did not operate automatically and was not self-executing; "rather, a surface owner seeking to merge those rights with the surface estate under the 1989 law was required to commence a quiet title action seeking a decree that the dormant mineral interest was deemed abandoned." Corban v. Chesapeake Exploration, LLC , 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.2d 1089 ; Darrah v. Baumberger , 7th Dist. Monroe No. 15 MO 0002, 2017-Ohio-8025, 2017 WL 4350989 (denying appellees' argument that vested property rights were created in property owners via the 1989 version of the ODMA and denying the argument that taking those vested rights away constitutes an unconstitutional taking based upon the binding decision of the Ohio Supreme Court in Corban ). Since the Wendts did not commence their suit in common pleas court prior to the effective date of the amended ODMA on June 30, 2006, they never owned any mineral or substantive rights.

{¶ 35} Further, though some courts have concluded that a cause of action is property within the meaning of the Takings Clause, the Ohio Supreme Court has held a statute that is not destructive of vested property rights and merely modifies a remedial right is constitutional and does not violate the Takings Clause. Hatch v. Tipton , 131 Ohio St. 364, 2 N.E.2d 875 (1936) ; see also Greyhound Food Mgmt. Inc. v. City of Dayton , 852 F.2d 866 (6th Cir. 1988) (stating the "Ohio Supreme Court has long held that the constitution bans the passage only of retroactive substantive laws, but not of retroactive remedial laws"). As the Ohio Supreme Court held in Corban , the General Assembly modified only the method and procedure by which the right is recognized and protected. Corban v. Chesapeake Exploration, LLC , 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.2d 1089. Accordingly, the 2006 ODMA merely modifies a remedial right and does not violate the Takings Clause.

{¶ 36} Finally, the U.S. Supreme Court has held, "where courts merely clarify and elaborate property entitlements that were previously unclear, they cannot be said to have taken an established property right." Stop the Beach Renourishment, Inc. v. Florida Dept. of Env. Protection , 560 U.S. 702, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010). "The Takings Clause only protects property rights as they are established under state law, not as they might have been established or ought to have been established." Id. In this case, the Ohio Supreme Court clarified the rights under the ODMA in Corban .

{¶ 37} Based on the foregoing, we find the trial court did not err in holding the 2006 version of the ODMA applies in this case; in finding the rights conferred by the 1989 version of the ODMA were not vested property rights protected by the United States Constitution; and in finding the application of the 2006 ODMA to the Wendts in this case does not constitute the deprivation of the Wendts property or due process and is constitutional. The Wendts' first assignment of error is overruled.

II.

{¶ 38} In their second assignment of error, the Wendts contend the trial court erred when it held the severed mineral interest at issue was not subject to judicial abandonment under the 2006 version of the ODMA. The Wendts argue since they filed an affidavit of abandonment, they served the notice, and because there was a lack of preserving event in the twenty (20) years before the notice, they are entitled to quiet title relief under the 2006 version of the ODMA.

{¶ 39} The parties dispute whether the Wendts fully complied with the 2006 ODMA notice procedures and whether the affidavits for transfer of real estate inherited filed in 2011 qualify as a savings event under R.C. 5301.56(B)(3)(a). The Dickersons argue that the Wendts' notice of abandonment should not have been served by publication or without explaining why service could not have been made by certified mail. The Wendts contend since the Dickersons admit to receiving actual notice of the filing of the notice of abandonment, any service error they made was harmless. The Dickersons contend the affidavits for transfer of real estate inherited were filed eight months prior to the notice of abandonment and they constitute a "title transaction" under R.C. 5301.47(F) and thus qualify as a "savings event" under R.C. 5301.56(B)(3)(a). The Wendts argue the affidavits of real estate inherited were not valid title transactions because they incorrectly describe the next-of-kin. However, we find neither of these issues to be dispositive in this case.

{¶ 40} Even if the Wendts fully complied with the 2006 ODMA notice requirements and even if the affidavits of real estate inherited do not qualify as a savings event under R.C. 5301.56(B)(3)(a), the Wendts' second assignment of error fails in light of several rulings from the Ohio Supreme Court, as the Dickersons timely filed claims to preserve in accordance with R.C. 5301.56(H)(1)(a).

{¶ 41} The Wendts do not dispute the Dickersons timely recorded two Claims to Preserve Mineral Interests with the Harrison County Recorder in response to their notice; they instead argue that they may seek judicial confirmation of the conclusive presumption of abandonment, regardless of the filing of the claims to preserve, as there was no preserving event in the twenty (20) years prior to their serving of the notice. We find this argument fails pursuant to the rulings from the Ohio Supreme Court in Dodd v. Croskey , Walker v. Shondrick-Nau , and Farnsworth v. Burkhart.

{¶ 42} In Dodd v. Croskey , 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147, the Ohio Supreme Court resolved the "question of whether a mineral-interest holder's claim to preserve a mineral interest from being deemed abandoned in accordance with R.C. 5301.56(H)(1)(a) is sufficient to preserve that interest if the claim was filed after notice of the surface owner's intent to declare the mineral interest abandoned and outside the 20-year window immediately preceding that notice" and addressed the "effect of a claim to preserve filed under R.C. 5301.56(H) in the absence of an affidavit describing the occurrence of one of the saving events described in subsections (B)(3)(a) through (f)."

{¶ 43} Like the Wendts in this case, the appellants in Dodd argued that, in order to preclude abandonment, the 2006 ODMA requires evidence that a savings event occurred in the 20-year window prior to the surface owner's notice of intent to declare mineral interests abandoned and thus a mineral interest holder's claim to preserve that is filed after the surface owner's notice does not preclude the mineral rights from being deemed abandoned if no saving event occurred within the preceding twenty years. Id. The Supreme Court reiterated that there are two ways for a mineral interest holder to assert that a mineral interest has not been abandoned after the surface owner files the notice of abandonment: (1) the holder of the mineral interest can file a claim to preserve in accordance with R.C. 5301.56(H)(1)(a) or (2) the holder can file an affidavit that describes a savings event that occurred in the 20 years preceding the notice. Id.

{¶ 44} The Ohio Supreme Court stated, "nothing in the act states that a claim to preserve filed under R.C. 5301.56(H)(1)(a) must refer to a saving event" that occurred within the preceding 20 years. Id. Further, "nor do the notice procedures" in R.C. 5301.56(H)(1)(a) require that the claim to preserve be itself filed in the 20 years preceding notice by the surface owner. Id. The Supreme Court held, "a mineral-interest holder's claim to preserve filed pursuant to R.C. 5301.56(H)(1)(a) is sufficient to preclude the mineral interests from being deemed abandoned if filed within 60 days after notice of the surface owner's intent to declare those interests abandoned." Id.

{¶ 45} The Ohio Supreme Court analyzed the facts of Dodd in light of their holding. The mineral interest holder in Dodd did not file his affidavit in the 20 years preceding the notice of intent to declare the mineral interests abandoned and he did not identify a saving event in the 20 years preceding the notice. Id. However, he did file an affidavit that the Court found, in form and substance, satisfied the requirements for a claim to preserve under R.C. 5301.56(C) and it was filed within the 60 days after the notice by the surface owner. Id. The affidavit outlined the history of transactions affecting the mineral rights underlying the surface property, identified thirty-six people as the current owners of the minerals and oil and gas who did not intend to abandon their rights, and stated these people intended to preserve their rights. Id. The Court found this affidavit sufficient to preserve the interest of the mineral holders. Id.

{¶ 46} The Supreme Court reaffirmed the holding in Dodd in Walker v. Shondrick-Nau , 149 Ohio St.3d 282, 2016-Ohio-5793, 74 N.E.2d 427. Citing Dodd , the Court found a timely affidavit and claim to preserve mineral interests sufficient to prevent the mineral rights from being "deemed abandoned" and prevent the mineral rights from vesting in the surface owner when the affidavit stated the mineral-holder was the owner of the oil, gas, coal, and other minerals in a 1965 deed and he had no intention of abandoning the mineral interests. Id. The Supreme Court stated that "whether a saving event occurred is not an issue that needs to be resolved in this case" because the mineral-holder's "claim to preserve his mineral rights was sufficient under the 2006 version of the act to prevent the mineral rights from being deemed abandoned and vested in the owner of the surface estate." Id.

{¶ 47} The Supreme Court again reiterated its position in its denial of a motion for reconsideration in Farnsworth v. Burkhart , 147 Ohio St.3d 1439, 2016-Ohio-7677, 63 N.E.3d 157. In their motion for reconsideration, the Farnsworth appellants made the same argument as the Wendts in this case, that, under the 2006 version of the ODMA, a conclusive presumption arises once the surface owner serves the notice of abandonment and files the notice of abandonment and that a claim to preserve filed pursuant to R.C. 5301.56(H)(1)(a) does not prevent the conclusive presumption from arising. Id. The Ohio Supreme Court denied the motion for reconsideration. Id ; see also Bayes v. Sylvester , 7th Dist. Mahoning No. 13 MO 0020, 2017-Ohio-4033, 2017 WL 2333196.

{¶ 48} In this case, the Wendts published a notification of abandonment on October 11, 2011 and, on October 21, 2011, recorded an affidavit of abandonment with the Harrison County Recorder's Office. The affidavit stated the mineral interests previously owned by holders John and Marjorie Dickerson were deemed abandoned pursuant to R.C. 5301.56(B) from 1989 to 2006 and vested in the owner of the surface as of March 22, 1992.

{¶ 49} On December 9, 2011, the Dickersons recorded two claims to preserve mineral interest regarding any mineral interests inherited from Marjorie Dickerson and John Dickerson with the Harrison County Recorder's Office. Pursuant to R.C. 5301.56(C), a claim to preserve must: (1) state the nature of the mineral interest claimed and any recording information upon which the claim is based; (2) comply with R.C. 5301.52 ; and (3) state the holder does not intend to abandon, but instead to preserve, the holder's rights in the mineral interest. See also Dodd v. Croskey , 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147.

{¶ 50} R.C. 5301.52 provides the claim should: (1) be in the form of an affidavit; (2) state the nature of the claim being preserved and the names and addresses of the persons for whose benefit the notice is being filed; (3) contain an accurate and full description of all land affected by the notice in particular terms, except that if the claim is founded upon a recorded instrument the description may be the same as in the recorded instrument; (4) state the name of each record owner of the land affected by the notice, together with the recording information of the instrument by which each record owner acquired title to the land; and (5) be made by any person who has knowledge of the relevant facts.

{¶ 51} The claims to preserve in this case are factually analogous to those filed in Dodd and Walker . See also M & H Partnership v. Hines , 7th Dist., 2017-Ohio-923, 86 N.E.3d 780 (finding affidavit constitutes a valid claim to preserve under R.C. 5301.56(H)(1)(a) and therefore no savings event needs to be specified therein); Kross v. Ruff , 7th Dist. Jefferson No. 13 JE 0035, 2017-Ohio-4276, 2017 WL 2569813 (holding affidavit stating the nature of the interest, stating the relevant recording information, complying with R.C. 5301.52, and stating the holder's intent to preserve their interest is sufficient to preserve the mineral-holder's interest pursuant to R.C. 5301.56(H)(1)(a) ); DeVitis v. Draper , 7th Dist., 2017-Ohio-1136, 87 N.E.3d 656 (finding affidavit that specified the nature of the severed mineral interest, pertinent title transactions affecting the interest, the current surface owners, the heirs for whose benefit the notice was being filed, and stated it was made pursuant to the provision of R.C. 5301.52 for the purpose of preserving the royalty interest in oil and gas constitutes a valid claim to preserve pursuant to Dodd and no savings event is needed).

{¶ 52} Here, the claims to preserve are in the form of an affidavit; state the mineral interests claimed; list the recording information upon which the claim is based (1952 deed); list the names and addresses of the persons for whose benefit the notice is being filed as they include a list of the Dickerson heirs and each of their addresses; contain a full and accurate description of the land affected by the notice by including detailed information about each tract of land; state the name of each record owner of the land affected by the notice and the recording information by stating the Wendts are the current record owners of the land, referencing the deed through which the Wendts acquired the land, and including the specific language contained in the surface deed; are made by a person who has knowledge of the relevant facts as they state the person making the claim "has knowledge of the relevant facts set out above"; and state the "claimant, as holder of such minerals, does not intend to abandon same, but, instead, intends to preserve its rights in such interest." Further, the claims to preserve were filed in the county recorder's office. R.C. 5301.56(H)(1). Finally, the Dickersons filed their claims within sixty (60) days from the date the notice was published, as they filed their claims fifty-nine days after the surface owners published the notice. R.C. 5301.56(H)(1). The claims to preserve comply with R.C. 5301.56(C) and R.C. 5301.56(H) and thus preserve the rights of all the mineral-interest holders in the land.

{¶ 53} Accordingly, even if there was no savings or preserving event of record in the twenty (20) years prior to the Wendts' serving of the notice and the Wendts properly served the notice pursuant to the 2006 ODMA, the binding case law of the Ohio Supreme court is controlling in this case such that the Dickersons preserved their rights by filing timely claims to preserve that comply with both R.C. 5301.56(H)(1) and R.C. 5301.56(C). Thus, the trial court did not err when it held the severed mineral interests at issue were not subject to judicial abandonment under R.C. 5301.56 and when it found title to the subject mineral rights in question should be quieted in favor of the Dickersons. The Wendts' second assignment of error is overruled.

{¶ 54} Based on the foregoing, appellants' assignments of error are overruled. The June 2, 2017 and July 14, 2017 judgment entries of the Tuscarawas County Court of Common Pleas are affirmed.

Hoffman, J., and Wise, Earle, J., concur


source: Caselaw Access Project

author: CARR, Presiding Judge.

license: Public Domain

text:
    STATE of Ohio, Appellee v. Jason PANARO, Appellant
    No. 16CA0067-M
    Court of Appeals of Ohio, Ninth District, Medina County.
    Dated: March 19, 2018
    DAVID C. SHELDON, Attorney at Law, for Appellant.
    GREGORY HUBER, J. MATTHEW LANIER, JOHN G. QUILLIN, and MEGAN A. PHILBIN, Prosecuting Attorneys, for Appellee.
    DECISION AND JOURNAL ENTRY
   CARR, Presiding Judge.

{¶ 1} Defendant-Appellant Jason Panaro appeals from the judgment of the Medina Municipal Court. This Court affirms.

I.

{¶ 2} On July 30, 2015, around 1 a.m., Officer Matthew Sandella of the Brunswick Hills Police Department stopped a vehicle driven by Panaro. Following the administration of field sobriety tests, Panaro was arrested and transported to the police station where breathalyzer testing was conducted. A complaint was filed, alleging that Panaro violated R.C. 4511.19(A)(1)(a), R.C. 4511.19(A)(1)(h), and R.C. 4511.39.

{¶ 3} Panaro filed a motion to suppress arguing, inter alia, that the officer lacked reasonable suspicion to stop Panaro's vehicle, the officer lacked reasonable suspicion to further detain Panaro in order to conduct field sobriety testing, and that the field sobriety tests were not conducted in substantial compliance with standardized procedures. Following a hearing on the motion to suppress, the trial court ordered the suppression of the results of two of the field sobriety tests, but otherwise denied the motion to suppress.

{¶ 4} Panaro pleaded no contest to one count of violating R.C. 4511.19(A)(1)(a) and the judgment entry reflects the remaining counts were dismissed. Panaro was thereafter sentenced and has appealed, raising two assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT'S FINDING THAT OFFICER SANDELLA OBSERVED APPELLANT FAIL TO USE HIS TURN SIGNAL AT LEAST 100' BEFORE TURNING LEFT
ONTO GRAFTON ROAD IS NOT SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE. THE OFFICER'S DASH CAM VIDEO SHOW THAT MR. PANARO HAD HIS TURN SIGNAL ON AT LEAST 100' BEFORE TURNING ONTO GRAFTON ROAD, AND THEREFORE DID NOT VIOLATE [ ]R.C. [ ]4511.39.

{¶ 5} Panaro argues in his first assignment of error that the trial court erred in concluding that he failed to use his turn signal on two occasions. First, Panaro asserts that the trial court's finding that Panaro failed to use his turn signal before moving into the turn lane is not supported by the evidence. Second, Panaro argues that the trial court erred in concluding that Panaro failed to put his turn signal on 100 feet prior to turning. Panaro only appears to challenge the trial court's factual findings, not the trial court's application of the law to the facts. Thus, he appears to concede that if either of the trial court's findings is supported by the record, the trial court did not err in finding the officer possessed reasonable suspicion to stop the vehicle.

{¶ 6} A motion to suppress evidence presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. "When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." Id. , citing State v. Mills , 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). Thus, a reviewing court "must accept the trial court's findings of fact if they are supported by competent, credible evidence." Burnside at ¶ 8. "Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id. , citing State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

{¶ 7} "The Fourth Amendment to the United States Constitution and Section 14, Article 1 of the Ohio Constitution proscribe unreasonable searches and seizures. To justify an investigative stop, an officer must point to 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' " State v. Kordich, 9th Dist. Medina No. 15CA0058-M, 2017-Ohio-234, 2017 WL 277536, ¶ 7, quoting Maumee v. Weisner , 87 Ohio St.3d 295, 299, 720 N.E.2d 507 (1999), quoting Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "In evaluating the facts and inferences supporting the stop, a court must consider the totality of the circumstances as 'viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.' " Kordich at ¶ 7, quoting State v. Bobo , 37 Ohio St.3d 177, 179, 524 N.E.2d 489 (1988). "This Court has repeatedly recognized that '[a]n officer may stop a vehicle to investigate a suspected violation of a traffic law.' " Kordich at ¶ 7, quoting State v. Slates , 9th Dist. Summit No. 25019, 2011-Ohio-295, 2011 WL 303246, ¶ 23. "Where an officer has an articulable reasonable suspicion or probable cause to stop a motorist for any criminal violation, including a minor traffic violation, the stop is constitutionally valid[.]" (Internal quotations and citations omitted.) State v. Freeman , 9th Dist. Summit No. 27617, 2015-Ohio-2501, 2015 WL 3883989, ¶ 10.

{¶ 8} R.C. 4511.39(A) provides in relevant part:

No person shall turn a vehicle or trackless trolley or move right or left upon a highway unless and until such person has exercised due care to ascertain that the movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided.
When required, a signal of intention to turn or move right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle or trackless trolley before turning * * *.

{¶ 9} Officer Sandella was the only witness to testify at the suppression hearing; however, a DVD containing the footage from the cruiser's dash cam was admitted into evidence. Around 1 a.m. on July 30, 2015, Officer Sandella, who was on patrol, was sitting in his marked police cruiser, which was parked on the property of a business on Pearl Road, observing traffic. Officer Sandella noticed a vehicle leaving the Dance Saloon; he would later determine that Panaro was the driver of that vehicle. Prior to Panaro's vehicle entering the roadway, another vehicle passed Officer Sandella and that vehicle briefly followed Panaro's vehicle. Officer Sandella then pulled out, as he decided to follow Panaro's vehicle.

{¶ 10} Officer Sandella testified that he noticed Panaro's vehicle enter the turn lane without using a turn signal and also observed that the vehicle did not have a turn signal on for at least 100 feet prior to turning left at the intersection of Pearl and Grafton Roads. Officer Sandella clarified on cross-examination that it was not until right before Panaro turned into the intersection that he put on his turn signal and that he came almost to a complete stop before entering the intersection. Officer Sandella asserted that, even if the turn signal was on for several seconds, given Panaro's slow speed at the time, the turn signal still was not on for 100 feet prior to the turn. Officer Sandella did not observe any further violations.

{¶ 11} From the DVD, one can see Panaro's vehicle exiting a driveway and turning on to Pearl Road. Prior to Panaro's vehicle entering the roadway, another vehicle passes Officer Sandella's cruiser and briefly follows Panaro's vehicle. Then Officer Sandella pulls out on to Pearl Road and it becomes briefly somewhat difficult to see Panaro's vehicle due to the movement of the cruiser, the distance, the vehicle behind Panaro, and the darkness. However, to the extent Panaro's vehicle can be seen in the process of changing lanes, it does not appear from the video that Panaro uses his turn signal. While Panaro does clearly use his turn signal prior to turning left on Grafton Road, it is not clear from the video at what distance Panaro activates his turn signal.

{¶ 12} The trial court found that Officer Sandella testified that he observed Panaro enter the left turn lane without using a turn signal and also testified that he observed that Panaro failed to use his turn signal 100 feet before turning left. In addition, the trial court viewed the dash cam video and concluded "[i]t [was] clear that [Panaro did] not use his turn signal before moving his car into the center lane or dedicated left turn lane[ ]" and that Panaro had his turn signal on for about 4 seconds but "it is unclear how far from the intersection the Defendant [was] when the turn signal [was] operated." Ultimately, the trial court concluded in its judgment entry, "that the traffic violation involving the failure to properly use a turn signal when changing lanes as shown in the dash cam video and the failure to properly use a turn signal 100 feet prior to making a left hand turn as observed by the officer created a reasonable, articulable suspicions and/or probable cause for the initial detention of Defendant's vehicle."

{¶ 13} From viewing the video alone, this Court cannot say whether Panaro used his turn signal prior to moving into the turn lane, although from what can be seen, it does not appear that Panaro used his turn signal while in the process of changing lanes. Thus, the trial court's statement that the video "[was] clear that [Panaro did] not use his turn signal before moving his car into the center lane or dedicated left turn lane[ ]" is somewhat troubling. (Emphasis added.) However, even assuming that particular factual finding is not supported by the record, given the Officer's testimony (which the trial court clearly found credible), and the video which evidences Panaro not using his turn signal while changing lanes, Panaro has not explained how the trial court's conclusion that Panaro failed to properly use his turn signal when changing lanes is unsupported by the record. See App.R. 16(A)(7). It is not this Court's duty to develop an argument for him. See Cardone v. Cardone , 9th Dist. Summit Nos. 18349, 18673, 1998 WL 224934, *8-9 (May 6, 1998). The video does not contradict the officer's testimony and it would not be unreasonable for the trial court to believe that the police officer's view of the events was at least somewhat different than that captured by the video given the circumstances.

{¶ 14} Nonetheless, even assuming this precise finding was not supported by competent, credible evidence, the trial court's finding that Panaro failed to use his turn signal for 100 feet prior to turning left was supported by competent, credible evidence. See State v. Bramley , 9th Dist. Medina No. 17CA0033-M, 2017-Ohio-8512, 2017 WL 5330003, ¶ 15. From the video, it is impossible to tell how far Panaro was from the intersection when he activated his turn signal. Officer Sandella, however, did testify that while Panaro did use his turn signal when turning, he failed to use it 100 feet prior to turning. The officer further testified that it was not until Panaro was nearly at the intersection that he utilized his turn signal. It is clear that the trial court found Officer Sandella's testimony credible, as the trial court relied on it. As the video does not discredit Officer Sandella's testimony, we cannot say that the trial court's finding is unsupported by the evidence. See Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8.

{¶ 15} Panaro has not contested that if he indeed failed to use his turn signal 100 feet prior to turning left he would have violated the statute. Given that a single suspected traffic violation provides reasonable suspicion for an officer to stop a vehicle, Panaro has not demonstrated that the initial stop violated the constitution. See State v. Freeman , 2015-Ohio-2501, at ¶ 10 ; Kordich , 2017-Ohio-234, at ¶ 7.

{¶ 16} Panaro's first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WERE SUFFICIENT SPECIFIC, ARTICULABLE FACTS CREATING REASONABLE SUSPICION OF OPERATING A VEHICLE UNDER THE INFLUENCE OF ALCOHOL TO JUSTIFY OFFICER SANDELLA'S CONTINUED DETENTION OF THE DRIVER BEYOND THE SCOPE OF THE INITIAL STOP TO PERFORM FIELD SOBRIETY TESTS[.]

{¶ 17} Panaro argues in his second assignment of error that the trial court erred in concluding that the officer possessed the reasonable, articulable suspicion needed to detain Panaro in order to perform field sobriety tests.

{¶ 18} " '[A] police officer does not need probable cause to conduct a field sobriety test; rather, he must simply have a reasonable suspicion of criminal activity.' " State v. High , 9th Dist. Medina No. 17CA0019-M, 2017-Ohio-8264, 2017 WL 4779556, ¶ 8, quoting Slates , 2011-Ohio-295, at ¶ 24. "[R]easonable suspicion exists if an officer can point to specific and articulable facts indicating that [an individual] may be committing a criminal act." (Internal quotations and citations omitted.) High at ¶ 8. The totality of the circumstances is considered when determining whether reasonable suspicion exists. See id.

{¶ 19} After following Panaro for a short time after the turn, Officer Sandella activated his overhead lights. It took Panaro "a little while" to stop, which from the video appears to be approximately 45 seconds. Ultimately, Panaro turned right, without using his turn signal, onto a side street and pulled over. Officer Sandella testified that he asked for Panaro's driver's license and proof of insurance. While Panaro handed over his license, Officer Sandella had to remind Panaro about his insurance card. Officer Sandella detected "an odor of alcohol coming from within the vehicle[.]" Officer Sandella asked Panaro where he was coming from and he replied that he was coming from down the road. Officer Sandella asked him to be more specific and Panaro indicated "the bar[.]" When Officer Sandella asked which bar, Panaro could not remember and stated it was "the titty bar." Officer Sandella asked whether it was the Dance Saloon and Panaro only agreed that it was when Officer Sandella asked whether it was the one with bikini dancers.

{¶ 20} Officer Sandella asked Panaro how much he had to drink and Panaro indicated he had a couple beers. When asked for specifics, Panaro responded that he had three Miller Lites. At that point, Officer Sandella returned to his cruiser, requested assistance, and then had Panaro exit the vehicle to perform field sobriety testing.

{¶ 21} Ultimately, the trial court concluded that Officer Sandella possessed reasonable suspicion of criminal activity authorizing him to further detain Panaro in order to conduct field sobriety testing. The trial court pointed to Panaro's failure to twice properly use a turn signal in a short span of time, the length of time it took Panaro to pull over, the "moderate" odor of alcohol coming from Panaro, and Panaro's admission to alcohol consumption.

{¶ 22} Panaro is correct that there was no testimony that there was a "moderate" odor of alcohol coming from Panaro's person. Instead, Officer Sandella's testimony was that there was "an odor of alcohol coming from within the vehicle." The intensity of that odor was not further specified. Nonetheless, even absent this finding, we conclude that, based upon the findings the trial court did make that are supported by the record, the trial court did not err in concluding that Officer Sandella possessed reasonable suspicion to further detain Panaro.

{¶ 23} Here, Panaro was leaving from a bar during the early morning hours after admittedly consuming three beers. In addition, it took him almost a minute to pull over after the officer turned on his overhead lights and he also displayed behavior that could be associated with memory impairment (having difficulty remembering where he was coming from and needing to be asked to provide insurance information twice). Once he was stopped, the officer noticed an odor of alcohol emanating from the vehicle.

{¶ 24} This Court has previously concluded that "[t]he combination of Defendant's bloodshot eyes, a smell of alcohol, and his admission that he had consumed two beers was sufficient to provide [the officer] with reasonable suspicion to detain Defendant to investigate a possible violation of Ohio's laws prohibiting the operation of a motor vehicle while under the influence of alcohol." State v. Tomko , 9th Dist. Summit No. 19253, 1999 WL 1037762, *3-4 (Nov. 3, 1999) ; see also High , 2017-Ohio-8264, at ¶ 14 ("This Court has held that even a mild odor of alcohol can provide reasonable suspicion for field sobriety testing when paired with other factors such as a traffic infraction, bloodshot eyes, and an admission to having consumed two beers."). While here there was no testimony that Panaro had bloodshot eyes, this Court has noted that other factors can be important, including the late hour, Slates , 2011-Ohio-295, at ¶ 25, location, and police officer's observations. See State v. Rogers , 9th Dist. Summit No. 26877, 2014-Ohio-103, 2014 WL 144612, ¶ 13. Considering the totality of the circumstances, we cannot conclude that the trial court erred in concluding that Officer Sandella possessed reasonable suspicion to further detain Panaro.

{¶ 25} Panaro's second assignment of error is overruled.

III.

{¶ 26} Panaro's assignments of error are overruled. The judgment of the Medina Municipal Court is affirmed.

Judgment affirmed.

TEODOSIO, J.

CALLAHAN, J.

CONCUR.


author: KLATT, J.

text:
    William H. EVANS, Jr., Plaintiff-Appellant, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, Defendant-Appellee.
    No. 16AP-767
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 20, 2018
    On brief: William H. Evans, Jr., pro se.
    On brief: Michael DeWine, Attorney General, and Lindsey M. Grant, Columbus, for appellee.
    DECISION
   KLATT, J.

{¶ 1} Plaintiff-appellant, William H. Evans, Jr., appeals from a judgment of the Court of Claims of Ohio in favor of defendant-appellee, Ohio Department of Rehabilitation and Correction ("ODRC") following a bench trial. Because appellant's complaint stated a medical claim and appellant failed to present any evidence establishing the standard of care, breach of the standard of care, and that the breach was the proximate cause of his injury, we affirm.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On July 15, 2015, Evans, an inmate at the Ross Correctional Institution ("RCI"), filed a complaint against ODRC. In the complaint, Evans alleged that he suffers from a number of medical conditions including osteoporosis, Chronic Obstructive Pulmonary Disease ("COPD"), bipolar affective disorder, degenerative disc disease, and scoliosis of the spine, and that he has had a steel hip replacement and a history of fractures. He claimed that ODRC negligently failed to provide care or accommodate his hip replacement and feet problems, negligently cancelled inhalers and pain medication, negligently prescribed blood pressure medication, and negligently changed his medications from "self-carry" to nurse-dispensed requiring him to wait in a "pill call" line.

{¶ 3} Prior to trial, Evans asked that the trial court issue several subpoenas. On February 3, 2016, he filed requests for three subpoenas to be delivered at Ohio State University-Medical Center, 480 Medical Center Drive, Columbus, Ohio 43215 for Laura Phieffer, M.D. (surgeon); Makulic, M.D.; and Dr. Robert Alan Bornstein (vice dean/college of medicine). He also requested a subpoena to be issued to John DesMarais-medical director, Ohio Department of Rehabilitation and Correction, 770 West Broad St., Columbus, Ohio 43222. These witnesses were commanded to attend and give testimony at trial and to produce an "expert report." On March 25, 2016, Evans filed two additional requests for subpoenas. These subpoenas were addressed to Melissa Hawk-nurse practitioner, and Kelli Cardaras-nurse practitioner at RCI, P.O. Box 7010, 16149 SR 104, Chillicothe, Ohio 45601. Hawk and Cardaras were commanded to attend and give testimony at trial and to produce all medical records for Evans from 2005 through 2016.

{¶ 4} The trial court issued the six subpoenas on April 27, 2016. A notice of failure of service was returned for DeMarais as he no longer worked at the address provided by Evans. The returns of service for the Phieffer, Makulic, and Bornstein subpoenas showed that these subpoenas were all delivered by the same deputy sheriff on May 2, 2016 at 8:47 a.m., and indicated "Residential Service Security." According to the returns of service for the Hawk and Cardaras subpoenas, a deputy sheriff served the subpoenas on May 6, 2016 by residential service. ODRC filed a motion to quash the subpoenas duces tecum issued to Hawk, Cardaras, Bornstein, Phieffer, and Makulic.

{¶ 5} On May 11, 2016, Evans requested that the trial court issue two more subpoenas. These were addressed to Gary Mohr-director and John Doe-medical director at Ohio Department of Rehabilitation and Correction, 770 West Broad St., Columbus, Ohio 43222. The witnesses were commanded to attend and give testimony at trial and to produce an "expert report." The returns of service showed that the subpoenas were served on May 13, 2016 at 11:40 a.m. by "Residential Service R(G Mitchell)." ODRC filed a second motion to quash these subpoenas.

{¶ 6} On May 25, 2017, the case proceeded to trial before a magistrate on the issue of liability and was held at RCI. As an initial matter, the magistrate granted ODRC's two motions to quash. Evans testified and submitted four exhibits for admission. ODRC moved for dismissal pursuant to Civ.R. 41(B)(2), arguing that Evans' causes of action arose out of medical care, treatment, or diagnosis and, therefore, constituted a medical claim. ODRC contended that Evans failed to offer the evidence required to support a medical malpractice claim and that it was entitled to judgment.

{¶ 7} The magistrate recommended that the Civ.R. 41(B)(2) motion be granted and that the case be dismissed. He found that medical skill and judgment was necessary to determine the proper course of action to treat Evans' feet and hip replacement and to determine which medicines should be prescribed and how they should be taken. The magistrate rejected the argument that this fell within the "common knowledge" exception. Because the claims focused on the quality of medical care rather than the complete absence of care, the magistrate concluded that Evans had presented a claim for medical malpractice and that he had failed to present any evidence regarding the standard of care or that the breach of the standard of care proximately caused injury to Evans.

{¶ 8} Evans filed objections to the magistrate's decision. He argued that the magistrate erred in quashing the subpoenas because the failure of proper service was the fault of the state and that magistrate erred in refusing to continue the trial. He asserted that delivery of the subpoenas to security personnel did not constitute improper service. Evans also alleged that the exhibits admitted at trial conclusively established medical facts and continued to dispute that his complaint constituted a medical malpractice claim. He argued that because the only defendant was the "State," it could not be a medical malpractice claim but was really a claim in negligence for the violation of R.C. 2921.44(C)(2).

{¶ 9} The trial court denied Evans' objections. It noted that neither a transcript of the May 25, 2017 trial nor an affidavit of evidence was filed within 30 days of the filing of the objections as required by Civ.R. 53(D)(3)(b)(iii). To the extent that Evans raised any factual objections, the trial court accepted the magistrate's factual findings. It agreed with the magistrate that the complaint stated a claim for medical malpractice and that Evans was required to present expert testimony to support his claim. Because Evans failed to do this, the trial court entered judgment in favor of ODRC.

{¶ 10} Evans appeals, assigning the following errors:

[I.] TRIAL COURT ERRED IN FAILING TO APPLY O.R.C.§ 2921.44(C)(2), AS NEGLIGENTLY FAILING TO PROVIDE ADEQUATE MEDICAL ATTENTION, WHERE § 2307.60(A) PROVIDES AS OF RIGHT A CIVIL ACTION FOR VIOLATION OF A CRIMINAL STATUTE.
[II.] TRIAL COURT ERRED IN DESIGNATING THIS ACTION AS A "MEDICAL CLAIM".
[III.] TRIAL COURT ERRED IN FAILING TO RENDER JUDGMENT IN FAVOR OF PLAINTIFF-APPELLANT EVANS AS A MATTER OF LAW.
[IV.] TRIAL COURT ERRED AND VIOLATED DUE PROCESS OF LAW IN FAILING TO EITHER ORDER THAT ALL SUBPOENA'S WERE PROPERLY SERVED FOR TRIAL, AND ORDERING THAT ALL WITNESS'ES ATTEND, OR OTHERWISE TO RESCHEDULE THE TRIAL, VIOLATING THE 14th.AMENDMENT, U.S. CONSTITUTION AND OHIO CONSTITUTION ARTICLE I § 16, VOIDING FUNDAMENTAL FAIRNESS, DUE PROCESS, AND EQUAL PROTECTION OF LAW.

(Sic passim.)

LEGAL ANALYSIS

{¶ 11} We will begin by addressing the fourth assignment of error which raises a pretrial issue. Evans argues that the trial court erred in granting ODRC's motions to quash the subpoenas and denying his request to continue the trial to secure the witnesses' attendance. He states that some of the witnesses were "treating physicians" and employees of ODRC. He contends that these facts gave him the right to have the witnesses present at trial and subject them to direct examination.

{¶ 12} Generally, an appellate court reviews a trial court's ruling to quash or enforce a subpoena under an abuse-of-discretion standard. Bell v. Nichols , 10th Dist. No. 10AP-1036, 2013-Ohio-2559, 2013 WL 3193682, ¶ 36. Absent an abuse of discretion, an appellate court must affirm a trial court's disposition of discovery issues. Bd. of Clark County Commrs. v. Newberry , 2d Dist. No. 2002-CA-15, 2002-Ohio-6087, 2002 WL 31492319, ¶ 13. The term "abuse of discretion" implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 13} In its motion to quash, ODRC argued that the subpoenas should be quashed because (1) Evans failed to tender the required witness fees and mileage, (2) the subpoenas issued to Hawk and Cardaras were an impermissible substitution for discovery, (3) the subpoenas issued to Phieffer, Bornstein, and Makulic were improper attempts to force uncompensated individuals to create expert reports, and (4) none of the subpoenas were properly served as they were left with security at the witnesses' places of employment. In support of its motion, ODRC attached the affidavit of the investigator for RCI. He stated that the subpoenas for Hawk and Cardaras were left at the front security desk at RCI and that the subpoenas were neither handed nor read to Hawk or Cardaras by the Ross County Sheriff or a deputy sheriff.

{¶ 14} The second motion to quash the subpoenas for Mohr and John Doe raised these same arguments and two additional arguments. ODRC contended that the subpoenas should also be quashed because they were untimely and because the witnesses were not included in Evans' pretrial statement or discovery.

{¶ 15} Evans seemed to acknowledge in his memorandum in opposition that he did not remit any witness fees or mileage. Instead, he contended that witness fees were not required for subpoenas duces tecum and that witness fees should not apply to him as he earns only $6.00 a month.

{¶ 16} Civ.R. 45(B) provides in pertinent part:

Service of a subpoena upon a person named therein shall be made by delivering a copy of the subpoena to the person, by reading it to him or her in person, by leaving it at the person's usual place of residence, or by placing a sealed envelope containing the subpoena in the United States mail as certified or express mail return receipt requested * * *, and by tendering to the person upon demand the fees for one day's attendance and the mileage allowed by law. * * * If the witness being subpoenaed resides outside the county in which the court is located, the fees for one day's attendance and mileage shall be tendered without demand.

{¶ 17} The failure to tender fees renders a subpoena defective. A.O. Smith Corp. v. Perfection Corp. , 10th Dist. No. 03AP-266, 2004-Ohio-4041, 2004 WL 1728615, ¶ 26. A witness cannot be compelled to appear and give testimony if the required fees are not advanced to the witness. Id.

{¶ 18} Evans is correct to the extent that the failure to tender witness fees does not affect the enforceability of the production of documents under the subpoena. Trick v. Scherker , 2d Dist. No. 26461, 2015-Ohio-2972, 2015 WL 4523219, ¶ 19 (the failure to tender fees did not relate to request to produce documents in a subpoena duces tecum). But, a subpoena duces tecum may not be used as a substitute of discovery from a party. Civ.R. 45(A) provides:

A subpoena may not be used to obtain the attendance of a party or the production of documents by a party in discovery. Rather, a party's attendance at a deposition may be obtained only by notice under Civ.R. 30, and documents or electronically stored information may be obtained from a party in discovery only pursuant to Civ.R. 34.

{¶ 19} In this case, Evans requested that Hawk and Cardaras, who were employees at RCI, produce all his medical records and files from 2005 through 2016 that are in the possession of ODRC. This request for documents should have been directed to ODRC pursuant to Civ.R. 34. Furthermore, R.C. 5120.21(C)(2) governs Evans' access to his prison medical records. That section provides:

A separate medical record of every inmate in an institution governed by the department shall be compiled, maintained, and kept apart from and independently of any other record pertaining to the inmate. Upon the signed written request of the inmate to whom the record pertains together with the written request of either a licensed attorney at law or a licensed physician designated by the inmate, the department shall make the inmate's medical record available to the designated attorney or physician. The record may be inspected or copied by the inmate's designated attorney or physician.

There is nothing in the record to indicate that Evans complied with R.C. 5120.21(C)(2).

{¶ 20} With regard to subpoena duces tecum for Phieffer, Makulic, Bornstein, Mohr, and John Doe, medical director at ODRC, Evans requested that these witnesses produce an expert report as defined under Civ.R. 26(B) and Loc.R. 7(E) of the Court of Claims of Ohio, and also to produce all medical records of plaintiff, as in accordance with the "Request for Written Deposition and/or Interrogatories filed and dated in this case for Nov. 03, 2015." A demand to produce documents contemplates the production of documents already in existence, not the creation of new documents. Nothing in Civ.R. 45 authorizes a party to request that a nonparty create a new document or report. In addition, Civ.R. 45(C)(3)(c) provides that a court may quash a subpoena issued to an expert witness if the subpoena

[r]equires disclosure of a fact known or opinion held by an expert not retained or specially employed by any party in anticipation of litigation or preparation for trial as described by Civ.R. 26(B)(5), if the fact or opinion does not describe specific events or occurrences in dispute and results from study by that expert that was not made at the request of any party.

In his pretrial statement, Evans identified only Bornstein as an expert witness. However, there is nothing in the record that indicates that either ODRC or Evans retained him or any of the other witnesses as experts.

{¶ 21} Ultimately, our ability to review this assignment of error is hampered by two factors. First, no written decision on ODRC's motions to quash appears in the record. The magistrate's decision from the trial indicates that he orally granted the motions to quash at the commencement of trial without further explanation. Second, Evans failed to provide a transcript of the trial or an affidavit of evidence.

{¶ 22} Civ.R. 53(D)(3)(b)(iii) requires that a party who objects to a magistrate's decision to provide the trial court with a transcript of the proceeding before the magistrate or an affidavit of evidence. If the objecting party fails to submit either a transcript or affidavit, the trial court must accept the magistrate's factual findings and limit its review to the magistrate's legal conclusion. Ross v. Cockburn , 10th Dist. No. 07AP-967, 2008-Ohio-3522, 2008 WL 2751224, ¶ 5 ; Farmers Mkt. Drive-In Shopping Centers, Inc. v. Magana, 10th Dist. No. 06AP-532, 2007-Ohio-2653, 2007 WL 1560276, ¶ 27-28. As an appellate court, we can only consider whether the trial court correctly applied the law to the facts as set forth in the magistrate's decision. Ross at ¶ 6 ; Magana at ¶ 29.

{¶ 23} Without a transcript, we cannot know the substance of the evidence produced in support of or contrary to the motions to quash or the basis of the magistrate's ruling. We also do not know whether Evans requested a continuance of the trial or the reason the magistrate denied that request. Absent a transcript, we must presume the regularity of the proceedings below and affirm the trial court's decision. Lee v. Ohio Dept. of Job & Family Servs. , 10th Dist. No. 06AP-625, 2006-Ohio-6658, 2006 WL 3703614, ¶ 10, citing Edwards v. Cardwell , 10th Dist. No. 05AP-430, 2005-Ohio-6758, 2005 WL 3484672, ¶ 4-6.

{¶ 24} We therefore overrule the fourth assignment of error.

{¶ 25} In the first assignment of error, Evans argues that the trial court erred when it failed to apply R.C. 2921.44(C)(2) to his case as R.C. 2307.60(A)(1) provides for a civil cause of action for a violation of a criminal statute. Neither the magistrate's decision nor the trial court's judgment entry overruling Evans' objections mention R.C. 2921.44(C)(2) or 2307.60(A)(1). Both the magistrate and trial court concluded that Evans had stated a claim for medical malpractice.

{¶ 26} R.C. 2307.60(A)(1) provides:

Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney's fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.

{¶ 27} The Supreme Court of Ohio has held that the plain and unambiguous language of the above statute "creates a civil cause of action for damages resulting from any criminal act, unless otherwise prohibited by law." Jacobson v. Kaforey , 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 13. Therefore, it is possible for Evans to raise a violation of R.C. 2921.44(C)(2) as a civil cause of action.

{¶ 28} R.C. 2921.44, the dereliction of duty statute, makes it a misdemeanor of the second degree if an officer, having charge of a detention facility, negligently fails "to provide persons confined in the detention facility with adequate food, clothing, bedding, shelter, and medical attention." R.C. 2921.44(C)(2). It is unclear, however, that Evans actually raised a violation of R.C. 2921.44(C)(2) as a claim. The complaint does not cite either R.C. 2921.44(C)(2) or 2307.60(A)(1) and is consistent with one brought solely on the basis of the common law for medical malpractice.

{¶ 29} Evans states that in later filings he informed the trial court that he was presenting a negligence claim based on the duty owed to him pursuant to R.C. 2921.44(C)(2) to provide adequate medical attention, and not bringing a medical malpractice claim. He also contends that at trial he specifically argued the dereliction of duty statute was applicable. ODRC counters that the trial court based its decision that Evans presented a claim for medical malpractice on the evidence adduced at trial. It also argues that the court was required to look beyond the language used in the complaint and examine the underlying nature of the claims. According to ODRC, Evans' claim concerned the quality of the medical care he received at RCI and that the trial court properly determined it was a cause of action for medical malpractice.

{¶ 30} The complaint does not make it clear that Evans was pursuing a statutory violation claim against ODRC. Also, without a transcript, we do not know whether Evans argued at trial that he was presenting a claim for a violation of R.C. 2921.44(C)(2). We must therefore presume the regularity of the proceedings and that the trial court did not err in failing to apply R.C. 2921.44(C)(2). The first assignment of error is overruled.

{¶ 31} In the second assignment of error, Evans argues that the trial court erred in designating this action as a medical claim. "Medical claim" is defined by R.C. 2305.113(E)(3) which provides, in pertinent part, as follows:

"Medical claim" means any claim that is asserted in any civil action against a physician, podiatrist, hospital, home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home, or residential facility, or against a licensed practical nurse, registered nurse, advanced practice registered nurse, physical therapist, physician assistant, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical technician-paramedic, and that arises out of the medical diagnosis, care, or treatment of any person. "Medical claim" includes the following:
(a) Derivative claims for relief that arise from the plan of care, medical diagnosis, or treatment of a person;
(b) Claims that arise out of the plan of care, medical diagnosis, or treatment of any person and to which either of the following applies:
(i) The claim results from acts or omissions in providing medical care.
(ii) The claim results from the hiring, training, supervision, retention, or termination of caregivers providing medical diagnosis, care, or treatment.

{¶ 32} Evans argues that his claim cannot be a "medical claim" because ODRC is the named defendant, and ODRC is not included in R.C. 2305.113(E)(3) as an entity against whom a medical claim may be brought. He cites Franks v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohio-2048, 958 N.E.2d 1253 (10th Dist.), and Foster v. Ohio Dept. of Rehab. Corr. , 10th Dist. No. 12AP-503, 2013-Ohio-912, 2013 WL 988056, as support that negligence by a prison medical staff sounds in ordinary negligence and does not present a medical claim.

{¶ 33} In Franks , an inmate with physical limitations was moved from a first floor cell to a third floor cell. A nurse refused to provide him with a first floor medical restriction. The inmate then fell down a flight of stairs. We held that "it was premature for the trial court to conclude that appellant has asserted a medical claim" as the pleadings failed to establish that ODRC was one of the enumerated medical providers in R.C. 2305.113(E).

Franks at ¶ 10. We reversed the grant of summary judgment to ODRC.

{¶ 34} In Foster , an inmate claimed that he suffered injury when he fell from the top bunk. He alleged that ODRC personnel had forced him to sleep in a top bunk despite his health conditions. He had been previously issued a temporary lower bunk restriction but a doctor employed by ODRC refused to reissue the restriction when the temporary one expired. We noted that a medical examination as a precondition for a benefit was distinguishable from an examination for purposes of medical diagnosis, care, or treatment. Foster at ¶ 34. Because ODRC failed to provide evidence that the claim involved the medical diagnosis, care, or treatment of Foster, we reversed the grant of summary judgment.

{¶ 35} Unlike Franks or Foster , the magistrate's decision that Evans presented a medical claim was based on the evidence produced at trial and not summary judgment. Also, neither case establishes as a rule that a medical claim may not be brought against ODRC. Although not enumerated in R.C. 2305.113(E) as a medical provider against whom a medical malpractice claim may be brought, ODRC's potential liability to Evans arises out of the alleged negligence of the medical staff at RCI in their medical diagnosis, care, or treatment of Evans. See Foy v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 16AP-723, 2017-Ohio-1065, 2017 WL 1091587, ¶ 23. After hearing the evidence at trial, the magistrate found the claims focused on the quality of the medical treatment provided at RCI. According to the magistrate, Evans acknowledged at trial that he routinely received treatment, but failed to identify any harm suffered due to the inattention of RCI's medical staff. Without a transcript, we must accept the magistrate's findings. Like the trial court, we conclude that Evans presented a claim for medical malpractice.

{¶ 36} Evans also argues that his action is not a medical claim because his complaint alleged a violation of R.C. 2921.44. Assuming arguendo that Evans did raise a civil cause of action for a violation of R.C. 2921.44, the trial court still did not err in designating his action as a medical claim. Evans seems to argue that because he alleged the violation of a statutory duty that negligence per se applied and that his action could not be classified as a medical claim. We disagree. A medical claim involves "any claim" that is asserted in "any civil action" that arises from the plan of care, medical diagnosis, or treatment of a person. Here, Evans allegedly raised R.C. 2921.44(C)(2), which prohibits the negligent failure to provide adequate medical attention to an inmate. In order for the trial court to find that ODRC violated the statute, Evans would have to establish the appropriate plan of care or medical treatment for his various ailments and that the medical staff at RCI negligently failed provide it. This falls squarely within the definition of "medical claim."

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

{¶ 38} In the third assignment of error, Evans argues that the trial court erred in failing to render judgment in his favor. Evans contends that ODRC's admissions pursuant to Civ.R. 36 show that it had violated R.C. 2921.44(C)(2) and established negligence per se.

{¶ 39} In order to recover for medical malpractice, a plaintiff must prove: (1) the existence of a standard of care within the medical community; (2) the defendant's breach of that standard; and (3) proximate cause between the medical evidence and the plaintiff's injuries. Adams v. Kurz , 10th Dist. No. 09AP-1081, 2010-Ohio-2776, 2010 WL 2433118, ¶ 11. A medical malpractice claimant must provide proof of the recognized standard of care in the medical community through expert testimony. Bruni v. Tatsumi , 46 Ohio St.2d 127, 131-32, 346 N.E.2d 673 (1976).

{¶ 40} Evans did not present any expert testimony at trial. Instead, Evans appears to rely on the admissions from ODRC that he entered into evidence. Contrary to his belief, however, the admissions do not establish that ODRC breached the standard of care or that it negligently failed to provide adequate medical attention. In the requests for admissions, Evans asked ODRC to admit that he had certain conditions such as bipolar affective disorder, degenerative disc disease, scoliosis, deformed feet with bilateral fracture history, COPD, artificial hip replacement, and osteoporosis. He also requested admissions that he had been prescribed at various times certain medications such as Rameron, Prozac, Lamictal, Ultram, Neurontin, albuterol, Q-Var, and Atrovent. ODRC did admit that the medical records for Evans included the "phrases" as listed above and that he had been prescribed the medications at various times and that some of the medications had been discontinued by medical personnel. There was no admission, however, that RCI medical personnel failed to treat Evans for any of the conditions or that any of the medications that were discontinued were currently necessary to treat Evans.

{¶ 41} The magistrate found and the trial court agreed that medical skill and judgment was necessary to determine the proper course of treatment for Evans' deformed feet and hip replacement, to determine whether certain medication should or should not have been prescribed to Evans and to determine the appropriate method of ingesting medication for maximum effectiveness. The magistrate rejected any argument that "common knowledge" exception applied to the requirement for expert testimony.

{¶ 42} Because there is no transcript, we are unable to review the magistrate's finding that medical skill and judgment is necessary to treat each of the ailments that is the basis of the complaint and that Evans stated a claim for medical malpractice. We do know that Evans did not present any expert testimony to establish the standard of care, breach of that standard, and proximate cause. Without that expert testimony, Evans failed to prove his claim by a preponderance of the evidence and, therefore, the trial court did not err in rendering judgment for ODRC. The third assignment of error is overruled.

{¶ 43} For the foregoing reasons, the assignments of error are overruled, and we affirm the judgment of the Court of Claims of Ohio.

Judgment affirmed.

TYACK and DORRIAN, JJ., concur.