author: Robb, P.J.

text:
    The NETHERLANDS INSURANCE COMPANY, as Subrogee of Switzerland of Ohio Local School District, Plaintiff-Appellant, v. BSHM ARCHITECTS, INC. et al., Defendants-Appellees.
    No. 18 MO 0001
    Court of Appeals of Ohio, Seventh District, Monroe County.
    Dated: September 12, 2018
    Atty. Jenna L. Mahoney, Nielsen Zehe & Antas, P.C., 55 West Monroe Street, Suite 1800, Chicago, Illinois 60603, Atty. Mark C. Melko, Issac Wiles Burtholder & Teetor, LLC, Two Miranova Place, Suite 700, Columbus, Ohio 43215, for Plaintiff-Appellant and
    Atty. Matthew P. Mullen, Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., 158 North Broadway, New Philadelphia, Ohio 44663 for Defendant/Appellee.
    BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.
    OPINION AND JUDGMENT ENTRY
   Robb, P.J.

{¶ 1} Plaintiff-Appellant The Netherlands Insurance Company, as subrogee of Switzerland of Ohio Local School District appeals, the decision of Monroe County Common Pleas Court granting Defendant-Appellee W.G. Tomko Incorporated's motion for directed verdict after the jury was sworn in but prior to opening statements. Appellant also appeals the trial court's decision denying its motion to amend the complaint. Three issues are raised in this appeal. The first is whether the motion for directed verdict was premature. The second issue is, if it was not premature, did the trial court err in granting the motion. Specifically, was there an independent common law tort cause of action to perform in a workmanlike manner even though there was a contract between the parties. The third issue is whether the trial court abused its discretion in denying the motion to amend the complaint to include a contract cause of action.

{¶ 2} For the reasons expressed below, the motion for directed verdict was premature. However, case law indicates if there was no prejudice, the trial court did not commit error in granting a premature motion for directed verdict. In this instance, there was no prejudice. Case law provides that when the tort and contract are intertwined and there is no independent tort that exists absent the contract, the claim is in contract, not in tort. As explained below, given the facts and the contract, there was no separate independent tort. As to the motion to amend, the trial court did not abused its discretion in denying the motion. The motion was made after the jury was sworn in, tort claims and contract claims require different elements, and more discovery would most likely be needed if the amendment was allowed.

Statement of the Case and Facts

{¶ 3} Switzerland of Ohio Local School District is located in Monroe County, Ohio and is insured by Appellant. The School District operates River High School, also located in Monroe County, Ohio. In 2014, the School District was making improvements to the high school, which included an addition and a roof drain system on the existing building. The School District retained BSHM Architects, Inc., to design the addition, Karpinski Engineering Inc. to provide engineering services, and Appellee to install the roof drain system. The roof drain system was installed on the property and as a result of it being allegedly installed incorrectly water infiltrated the existing gymnasium on July 27, 2014 and caused damage to the gymnasium floor requiring it to be replaced. Appellant made payments in the amount of $135,735.50 for damages sustained to the School District's property.

{¶ 4} On July 27, 2016, Appellant filed a complaint against BSHM Architects, Karpinski Engineering, and Appellee. Negligence was asserted against all defendants. As to Appellee, Appellant specifically claimed Appellee: 1) "Carelessly, negligently, and improperly installed the roof drain system at the Subject Property;" 2) "Carelessly, negligently, and improperly failed to caulk the roof drain and spigot penetrations so as not to cause harm to the Subject Property;" 3) "Failed to perform the roofing services in a workmanlike manner;" and 4) "Otherwise failed to exercise due care under the circumstances." 7/27/16 Complaint.

{¶ 5} All defendants filed answers. 9/13/16 Karpinski and BSHM Answer; 9/21/16 Appellee Answer. Appellee asserted as an affirmative defense that Appellant failed to state a claim upon which relief could be granted. 9/21/16 Appellant Answer.

{¶ 6} After some discovery occurred, Appellant dismissed with prejudice BSHM and Karpinski from the lawsuit. 3/30/17 Stipulation for Dismissal with Prejudice. Appellant's expert concluded the water intrusion was caused by Appellee's failure to properly install the roof drain system. 3/10/17 Plaintiff's Expert Disclosures. The case proceeded against Appellee, and further discovery occurred.

{¶ 7} Trial began on September 25, 2017. After the jury was chosen and sworn in, Appellee moved for a directed verdict claiming Appellant failed to state a claim upon which relief could be granted. Tr. 162. The only claim raised in the complaint was negligence. Appellee asserted it entered into a contract with the School District; it was a contract for Appellee to install the roof drain system. Appellee contends the conduct Appellant uses to form the basis of the negligence claim arose solely out of and under the contract. 9/25/17 Directed Verdict Motion; Tr. 162-164. It asserted when a contract action exists against a defendant, the plaintiff cannot maintain a tort claim based upon the same underlying actions as the breach of contract claim unless the defendant also breached a duty owed independent of the contract. 9/25/17 Directed Verdict Motion; Tr. 164.

{¶ 8} Appellant countered arguing their case is not limited to what was said during voir dire and in the alternative moved to amend the complaint:

Second of all, what our case that's put on is not limited to what Mr. Melko [other attorney for Appellant] said in Voir Dire. So the fact that he was alluding to negligence, in and of itself, doesn't preclude us moving forward.
Lastly, in the event that the Court permits to, we would move to amend our Complaint instanter to include a breach of contract claim.

Tr. 165.

{¶ 9} In response to the request for leave to amend, Appellee argued it would be unfair to grant it because the jury was already sworn in and the trial commenced. Tr. 166. Appellee also asserted it would also have the right to conduct discovery on breach of warranty if the motion to amend was granted. Tr. 166.

{¶ 10} Following a recess, the trial court granted the directed verdict motion. It explained there is no dispute the complaint only asserted a negligence claim and there was a contract between Appellee and the School District. It reasoned:

The basis of Plaintiff's tort claim in that this Defendant failed to adequately perform its services that were controlled under the contract.
The Seventh District has issued more than one ruling that has found that in the State of Ohio, a breach of contract does not create a separate tort claim, including a claim for negligence.
There is no other claim that the Plaintiff had made, setting forth their purported damages that they have incurred as a result of any type of other independent tortious conduct.
Of course, as we all know, the Plaintiff herein is a subrogee of the school district and they stand in the shoes of the school district.
The Court finds that a tort claim would be barred with respect to the school district based on the contract between the school district and Tomko. Therefore, the Plaintiff's negligence claim or tort claim against Tomko is likewise barred.

Tr. 168-169. See also 9/25/17 J.E.

{¶ 11} The trial court also denied the motion to amend the complaint noting the ruling does not "make the case go away because they can re-file." Tr. 169.

{¶ 12} Appellant then filed a motion for new trial. 10/23/17 Motion for New Trial. Appellant argued a new trial should be granted for four reasons. 10/23/17 Motion for New Trial. First, Appellee's directed verdict motion was premature because it was made before opening statements. 10/23/17 Motion for New Trial. Second, Appellee failed to plead the economic loss doctrine as an affirmative defense. 10/23/17 Motion for New Trial. Third, the economic loss doctrine does not bar the negligence claim against Appellee. 10/23/17 Motion for New Trial. Lastly, a tort claim can be maintained despite the existence of contract. 10/23/17 Motion for New Trial.

{¶ 13} Appellee filed a response in opposition asserting the motion for new trial should be denied. 11/2/17 Response in Opposition. It argued the motion was not procedurally made at the wrong time and even if it was, there was no prejudice to Appellant. 11/2/17 Response in Opposition. It further contended the timing argument is waived because it was not raised in response to the directed verdict motion. 11/2/17 Response in Opposition. Appellee further asserted the directed verdict was warranted on its merits. 11/2/17 Response in Opposition. It argued the economic loss rule argument is a red herring; the motion was not brought under the economic loss rule, but rather because the claim was based purely on contractual obligations. 11/2/17 Response in Opposition.

{¶ 14} Further responses were filed by each party. 11/14/17 Appellant's Reply; 11/15/17 Appellee's Sur-Reply.

{¶ 15} The trial court denied the motion for new trial; it agreed with Appellee's arguments. 12/11/17 J.E.

{¶ 16} Appellant timely appealed the trial court's decision granting the directed verdict and denying the motion to amend the pleadings.

First and Second Assignments of Error

"The court of common pleas erred in granting a directed verdict for the defendant because the economic loss doctrine does not bar the plaintiff's negligence claim against the defendant."

"The court of common pleas erred in granting a directed verdict for the defendant because the defendant owed an independent common-law duty to the plaintiff."

{¶ 17} The first and second assignments of error are addressed together due to the commonality of the issues; both address the merits of the directed verdict ruling.

{¶ 18} The rule governing directed verdicts, Civ.R. 50, states:

When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

Civ.R. 50(A)(4).

{¶ 19} "The 'reasonable minds' test mandated by Civ.R. 50(A)(4) requires the court to discern only whether there exists any evidence of substantive probative value that favors the position of the nonmoving party." White v. Leimbach , 131 Ohio St.3d 21, 2011-Ohio-6238, 959 N.E.2d 1033, ¶ 22, quoting Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co. , 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, ¶ 4. " 'A motion for directed verdict * * * does not present factual issues, but a question of law, even though in deciding such a motion, it is necessary to review and consider the evidence.' " Groob v. KeyBank , 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 14, quoting O'Day v. Webb , 29 Ohio St.2d 215, 280 N.E.2d 896 (1972), paragraph three of the syllabus. Since we are presented with a question of law, we apply a de novo standard of review. Cleveland Elec. Illum. Co. v. Pub. Util. Comm. , 76 Ohio St.3d 521, 523, 668 N.E.2d 889 (1996). De novo appellate review requires that the court of appeals independently review the record and afford no deference to the trial court's decision.

{¶ 20} The motion for directed verdict was made and granted after voir dire, but prior to opening statements. As will be explained in the third assignment of error, the motion was premature, but any error associated with the timing of the motion was waived and was harmless error.

{¶ 21} Although the motion was premature, the Ohio Supreme Court's instructions on granting a directed verdict following opening statements is instructive in this scenario. The Ohio Supreme Court has cautioned, "A trial court should exercise great caution in sustaining a motion for a directed verdict on the opening statement of counsel." Brinkmoeller v. Wilson , 41 Ohio St.2d 223, 325 N.E.2d 233 (1975), syllabus. Only when the opening statement demonstrates that the party is completely unable to sustain a cause of action should the court take the matter away from the jury and grant the motion for a directed verdict. Parrish v. Jones , 138 Ohio St.3d 23, 2013-Ohio-5224, 3 N.E.3d 155, paragraph three of the syllabus and ¶ 32.

{¶ 22} Appellant spends a great deal of time focused on the economic loss doctrine, even though it was not argued to the trial court in response to the directed verdict motion. It also argues there is an independent tort claim. Appellee counters arguing the directed verdict was properly granted because the conduct Appellant uses to form the basis of the negligence claim arose solely out of and under the contract, and thus, an independent tort claim does not exist. Appellee is essentially claiming Appellant failed to state a claim upon which relief could be granted. It further asserts the economic loss doctrine was not raised to the trial court, was not relied on by the trial court in making its decision, and is a red herring.

{¶ 23} These arguments raise two issues. First, whether the claimed inadequate performance is a contract or tort claim. Second, whether the economic loss doctrine is applicable in this situation.

A. Tort v. Contract

{¶ 24} In the complaint the Appellant clearly asserted a negligence claim against Appellee. The complaint contends Appellee: 1) "Carelessly, negligently, and improperly installed the roof drain system at the Subject Property;" 2) "Carelessly, negligently, and improperly failed to caulk the roof drain and spigot penetrations so as not to cause harm to the Subject Property;"

3) "Failed to perform the roofing services in a workmanlike manner;" and 4) "Otherwise failed to exercise due care under the circumstances." 9/27/16 Complaint.

{¶ 25} This claim is premised on one incident, installing the roof drain system. The discovery filings indicate it was Appellant's expert's opinion that Appellee failed to properly install the roof drain system and this is what caused the water to back up in the roof drain system and ultimately caused water to infiltrate the gymnasium and damage the floor.

{¶ 26} Given the claims and Seventh Appellate District case law, the trial court found the claim could only be a breach of contract and not a separate tort claim. Since a breach of contract claim was not pled, the trial court granted the directed verdict for Appellee:

In this case, the Plaintiff claims to have been damaged as a result of Defendant Tomko's actions under the terms of a contract between Tomko and the School District. The work Tomko was to perform for the School District was governed by the contract between the School District and Tomko. The basis of Plaintiff's tort claim is that Defendant Tomko failed to adequately perform its services under the contract. Plaintiff claims that it suffered damages as a direct and proximate result of Tomko's failure to properly install a roof drainage system. This falls under Tomko's obligations under the contract.
There is no claim that Plaintiff's purported damages occurred as a result of some other independent tortious conduct of Defendant Tomko. Thus, Plaintiff's purported damages are only recoverable under a breach of contract claim, which was not plead by Plaintiff in this case.

9/25/17 J.E.

{¶ 27} "In Ohio, a breach of contract does not create a tort claim." Textron Fin. Corp. v. Nationwide Mut. Ins. Co. , 115 Ohio App.3d 137, 151, 684 N.E.2d 1261 (9th Dist.1996). Generally, the existence of a contract precludes a tort claim on the same underlying actions, unless the defendant also breached a duty owed independent of the contract. Raze Internatl., Inc. v. Southeastern Equip. Co. , 2016-Ohio-5700, 69 N.E.3d 1274, ¶ 62 (7th Dist.), citing Lucarell v. Nationwide , 2015-Ohio-5286, 44 N.E.3d 319, ¶ 87 (7th Dist.), rev'd on other grounds, sub nom . Lucarell v. Nationwide Mut. Ins. Co. , 152 Ohio St.3d 453, 2018-Ohio-15, 97 N.E.3d 458, ¶ 32. "However, a tort claim based upon the same actions as those upon which a breach of contract claim is based will exist independently of the contract action if the breaching party also breaches a duty owed separately from that created by the contract." Raze citing Lucarell, 2015-Ohio-5286, 44 N.E.3d 319. "Where the causes of action in tort and contract are 'factually intertwined,' a plaintiff must show that the tort claims derive from the breach of duties that are independent of the contract and that would exist notwithstanding the contract." Stancik v. Deutsche Natl. Bank , 8th Dist. No. 102019, 2015-Ohio-2517, 2015 WL 3899224, ¶ 40, citing Cuthbert v. Trucklease Corp., 10th Dist. No. 03AP-662, 2004-Ohio-4417, 2004 WL 1879023, ¶ 44. See also Wexler v. Jewish Hosp. Assoc. of Cincinnati, 1st Dist. Nos. C-820654 and C-820906, 1983 WL 5281 (Oct. 26, 1983).

{¶ 28} Here, the claims are factually intertwined. However, the complaint alleged the installation of the roof drain system was not performed in a workmanlike manner. Appellant asserts the failure to perform in a workmanlike manner is the independent tort.

{¶ 29} Absent from the contract between the School District and Appellee was an express warranty to perform the work in a workmanlike manner. Exhibit H to the Appellant's Motion for New Trial.

Where there is no express warranty in the contract to perform in a workmanlike manner, there may be an implied warranty to do so. Implied warranties are typically governed by contract law. Yet, there is case law indicating the failure to perform in a workmanlike manner can be a tort claim even though the duty to perform in a workmanlike manner arose from the contract.

{¶ 30} In addressing whether the 4-year tort statute of limitation or the 15-year contract statute of limitation applied to a claim of whether a contractor failed to perform in workmanlike manner, the Tenth Appellate explained the instances when contract law applied and when tort law applied. Cook v. ProBuild Holdings, Inc. , 10th Dist., 2014-Ohio-3518, 17 N.E.3d 1210, ¶ 26. It determined when the alleged failure to perform in a workmanlike manner arises out of the agreements entered between the general contractor and its subcontractors for future construction services the nature of the liability is ex contractu; it is governed by contract law. Id. In reaching this decision the court noted, in general, common law imposes a duty on builders and contractors to perform in a workmanlike manner. Id. at ¶ 19. The Court then discussed two Ohio Supreme Court decisions, Velotta and Kishmarton . Id. at ¶ 19, 21-22.

{¶ 31} In Velotta , the Ohio Supreme Court held, "An action by a vendee against the builder-vendor of a completed residence for damages proximately caused by failure to construct in a workmanlike manner using ordinary care-a duty imposed by law-is an action in tort * * *." Velotta v. Leo Petronzio Landscaping, Inc. , 69 Ohio St.2d 376, 433 N.E.2d 147 (1982), paragraph one of the syllabus. The Velotta Court indicated that while the obligation to perform in a workmanlike manner may arise out of the contract, the cause of action is based on a duty imposed by law and thus, is a tort. Id. at 378, 433 N.E.2d 147. See also Jones v. Centex Homes , 132 Ohio St.3d 1, 2012-Ohio-1001, 967 N.E.2d 1199, syllabus (sale of already constructed new residence). Velotta involved the sale of an already completed residence.

{¶ 32} Years later in Kishmarton , the Ohio Supreme Court was asked to determine whether an alleged violation of a duty to construct a residence in a workmanlike manner arises in contract or tort when the agreement is for the future construction of a residence, not an already constructed residence. The specific issue was whether, when a vendee and vendor-builder enter into an agreement for the future construction of a residence, the vendee's cause of action against the builder for breach of the duty to construct the residence in a workmanlike manner arises in contract or tort. Kishmarton v. William Bailey Constr., Inc. , 93 Ohio St.3d 226, 754 N.E.2d 785 (2001). Noting its earlier decision in Velotta did not address this issue, the Supreme Court held: "Where the vendee and builder-vendor enter into an agreement for the future construction of a residence, the vendee's claim for breach of an implied duty to construct the house in a workmanlike manner arises ex contractu." Id. at paragraph one of the syllabus and 228, 754 N.E.2d 785.

{¶ 33} In reaching this conclusion, the Kishmarton Court considered the nature of the particular agreements in Velotta and in Kishmarton :

In Velotta , the consideration for the purchase price was the structure, a finished product. In this case, "the consideration is the services * * * [to] be performed by the contractor. * * * While the contractor is still required to perform the services in a workmanlike manner, the quality of the product will be governed by the language of the contract itself."
Vistein v. Keeney (1990), 71 Ohio App.3d 92, 105, 593 N.E.2d 52, 61.
The contract governs the warranty of good workmanship; therefore, the warranty of good workmanship arises from the contract. It can hardly be otherwise.

Id. at 228-229, 754 N.E.2d 785.

{¶ 34} Here, the failure to perform in a workmanlike manner arises out of the contract between the School District and Appellee for the future construction of the roof drain system. Although the drain system was completed before discovery of Appellee's alleged improper installation of the drain system, the cost of the project was for the services to be performed. See Hanna v. Groom , 10th Dist. No. 07AP-502, 2008-Ohio-765, 2008 WL 500530, ¶ 21 (Paving contract between the parties. During performance of the contract damage occurred to homeowner's siding. Following completion, homeowner refused to pay in full until the siding was repaired. The court found the damage was governed by contract law because the paving contract was for future services.). Like Kishmarton and Cook, Appellant's claim for allegedly failing to perform in a workmanlike manner is governed by contract law, not tort law because the contract was for future construction. Therefore, the tort claim is precluded because of the existence of a contract.

B. Economic loss doctrine

{¶ 35} The economic-loss doctrine generally prevents recovery in tort damages of purely economic loss. Chemtrol Adhesives, Inc. v. American Manufacturers Mut. Ins. Co. , 42 Ohio St.3d 40, 537 N.E.2d 624 (1989).

" '[T]he well-established general rule is that a plaintiff who has suffered only economic loss due to another's negligence has not been injured in a manner which is legally cognizable or compensable.' " This rule stems from the recognition of a balance between tort law, designed to redress losses suffered by breach of a duty imposed by law to protect societal interests, and contract law, which holds that "parties to a commercial transaction should remain free to govern their own affairs." " 'Tort law is not designed * * * to compensate parties for losses suffered as a result of a breach of duties assumed only by agreement. That type of compensation necessitates an analysis of the damages which were within the contemplation of the parties when framing their agreement. It remains the particular province of the law of contracts.' "

(Internal citations omitted.). Id. at ¶ 6.

{¶ 36} The economic loss doctrine applies to tort claims and presupposes that a tort cause of action exists. The economic loss doctrine is not a means to create an independent tort when there was not one.

{¶ 37} The Eighth Appellate District essentially reached that same conclusion in Stancik . 2015-Ohio-2517 at ¶ 39-41. In Stancik , the Trust moved for summary judgment claiming the negligence claims were barred by the economic loss doctrine. Id. at ¶ 39. The appellate court stated the economic loss doctrine would not bar a viable negligence claim because there was an allegation of physical injury. Id. However, it found the negligence claim was not viable because "the existence of contract action excludes the opportunity to present the same case as a tort claim." Id . quoting Textron , 115 Ohio App.3d at 151, 684 N.E.2d 1261. "When an alleged breach is of a duty that is created by a contract and is 'independent of any duty imposed by law, the cause of action is one of contract, not tort.' " Stancik, quoting Cuthbert , 2004-Ohio-4417 at ¶ 44. In Stancik , the parties' relationship was contractual, and any purported duties and responsibilities of the Trust in maintaining accurate records before initiating foreclosure are related to the contract. Stancik at ¶ 41. "Because Stancik's allegations regarding the Trust's alleged breach of its duties do not encompass any duties independent of their contractual relationship, his negligence claims necessarily fail as a matter of law." Id.

{¶ 38} That reasoning equally applies here. The duty owed to the School District arose from the contract; the School District and Appellee's relationship was contractual. Thus, any duty to perform the work correctly are related to the contract. The tort claimed is intertwined in the contract and was not independent.

{¶ 39} For those reasons, Appellant's assertion of the economic loss doctrine is a red herring; the trial court found that the contract and the tort claim are intertwined and an independent tort does not survive. The negligence claim fails as a matter of law.

{¶ 40} For the above stated reasons, the first two assignments of error are meritless.

Third Assignment of Error

"The court of common pleas erred in granting a directed verdict for the defendant prior to the plaintiff's opening statement."

{¶ 41} The argument asserted in this assignment of error is the trial court erred in granting the motion for directed verdict prior to opening statements. This is a timing argument; Appellant appears to be arguing a procedural defect in granting the motion at a time not allowed by the rule. Appellee counters, arguing Appellant waived this argument when it did not object to the timing of the motion in its response to the motion for directed verdict. In the alternative, Appellee argues the granting of the motion was premature, but since there was no prejudice to Appellant any error was harmless. It contends there was nothing Appellant could have stated in its opening statement that would have changed the fact that it failed to state a claim upon which relief could be granted.

{¶ 42} Civ.R. 50(A)(1) states:

(1) When Made. A motion for a directed verdict may be made on the opening statement of the opponent, at the close of the opponent's evidence or at the close of all the evidence.

Civ.R. 50(A)(1).

{¶ 43} The language of the rule lists three times when a directed verdict motion may be made - one of which is after the opponent's opening statement. The motion at hand was made prior to the opponent's opening statement.

{¶ 44} Appellate courts have indicated a motion at times different from the ones expressed in Civ.R. 50(A)(1) are improper. The Eighth Appellate District has explained that Civ.R 50(A)(1) and (4) must be read in conjunction with each other and thus, in order for a direct motion to be granted it must be "properly made" and meet the prescriptions in subdivision (1). Sherwin v. Cabana Club Apartments , 70 Ohio App.2d 11, 433 N.E.2d 932 (8th Dist.1980). Thus, if a motion is made at any other time than the ones prescribed by Civ.R. 50(A)(1), the motion is not properly made and should not be entertained. Id. In Sherwin the motion was not properly made because it was made at the close of movant's own evidence. Id. The appellate court reasoned the trial court erred in granting the motion because it precluded the nonmovant from presenting any evidence in support of its affirmative defenses or counterclaim. Id. The appellate court held the granting of the motion at the incorrect time denied the nonmovant the opportunity to defend itself. Id. The Tenth Appellate District has similarly stated "if a trial court directs a verdict for the plaintiff at the close of his own case, the motion is premature and improper."

Biddle v. Mayfield , 10th Dist. No. 85AP-751, 1986 WL 3710 (Mar. 25, 1986), citing Sherwin , at 11, 433 N.E.2d 932. The Twelfth Appellate District has also concluded a motion for directed verdict made after the presentation of the movant's evidence is premature and the trial court's denial of the motion was proper. Stephens v. Vick Express, Inc. , 12th Dist. Nos. CA2002-03-066 and CA2002-03-074, 2003-Ohio-1611, 2003 WL 1689602, ¶ 11-14 (Additionally noting that since the motion was premature, it should not have been entertained by the trial court.).

{¶ 45} Although premature motions should not be entertained, the Eighth and Tenth Appellate districts have indicated the granting of a premature directed verdict motion may result in harmless error. Langford v. Dean , 8th Dist. No. 74854, 1999 WL 777862 (Sept. 30, 1999) ("In this case, the trial court granted the appellee's motion for a directed verdict prior to the commencement of voir dire. Although the trial court was technically incorrect in the timing of its ruling on the appellee's motion, this court has previously held that such a premature ruling on a motion for a directed verdict is harmless error where it is clear that a plaintiff will be unable to establish one or more of the necessary elements for recovery."); King James S. Danford Square Condominium Unit Owner's Ass'n v. Pacer Const. Corp. , 8th Dist. No. 64213, 1993 WL 515623 (Dec. 9, 1993) (Motion for directed verdict was made prior to opening statements. Although the motion was premature, the trial court's granting of the motion was harmless given the facts and pleadings of the case); Walters v. Walters , 10th Dist. No. 82AP-282, 1982 WL 4311 (July 29, 1982) (This case dealt with Civ.R. 41(B), which deals with a nonjury trial, rather than Civ.R. 50(A) which deals with a jury trial. However, the court noted the error associated with granting the premature motion "does not necessarily require reversal of the judgment since it is incumbent upon the appellant to demonstrate prejudice resulting from the error."). These cases are in conformity with the decision in Sherwin , which many courts cite for the proposition that a directed verdict motion is premature and improper. Essentially the Sherwin court held the granting of the improper motion resulted in prejudice given the facts and filings in that case; the nonmovant was foreclosed from the opportunity to defend itself because it was precluded from presenting evidence on its affirmative defenses and counterclaim. Sherwin , at 11, 433 N.E.2d 932.

{¶ 46} In this case, the motion was premature because it was made prior to the opening statements. Due to the timing of the motion the trial court should not have entertained the motion. Yet, there was no prejudice from the trial court's granting of the motion. This is not a case where the nonmovant was the defendant who had additionally filed a counterclaim and asserted affirmative defenses and had yet to present its evidence. This case deals with the claim raised in the complaint. Although we agree with Appellant that neither party was foreclosed to assertions made during voir dire, Appellant was limited to the claim pled in the complaint. As Appellee states, there was nothing Appellant could have stated in its opening statement that would have changed the fact that it failed to state a claim upon which relief could be granted. As explained in the first two assignments of error there was no independent tort claim and the only potential claim was a contract claim, which was not pled. Accordingly, the granting of the motion for directed verdict was correct and no prejudice resulted from prematurely granting the motion.

{¶ 47} Furthermore, the timing of the motion was waived. In addition to finding that a premature motion did not result in prejudice, the Tenth Appellate District has stated that failing to object to the timing of the directed verdict motion waived the argument. Alhamarshah v. Salem , 10th Dist., 2016-Ohio-7668, 73 N.E.3d 1076, ¶ 15 (Motion for directed verdict was made prior to opening statements and determined to result in harmless error because no prejudice resulted from premature motion.).

{¶ 48} In conclusion, there was no objection and there is no showing of prejudice. This assignment of error lacks merit.

Fourth Assignment of Error

"The court of common pleas erred in denying the plaintiff's motion to amend its complaint."

{¶ 49} Appellant moved to amend the complaint to include a contract claim in response to the directed verdict motion. Appellee opposed the motion to amend. The trial court denied the motion to amend.

{¶ 50} Civ.R. 15(A) governs amendment of pleadings and provides when leave must be given to amend the pleadings. In this instance, the only manner in which Appellant could amend the pleadings is if it obtained leave from the court or if Appellee consented in writing to the amendment. Civ.R. 15(A). The rule indicates in granting leave, the trial court "shall freely give leave when justice so requires." Civ.R. 15(A).

{¶ 51} Factors for the trial court to consider include whether the movant makes a prima facie showing of support for the new matters sought to be plead, the timeliness of the motion, and whether the proposed amendment would prejudice the opposing party. Wilmington Steel Prods., Inc. v. Cleveland Elec. Illuminating , 60 Ohio St.3d 120, 573 N.E.2d 622 (1991).

{¶ 52} The determination on whether to grant or deny a motion to amend lies well within the trial court's discretion; an appellate court's review is conducted pursuant to an abuse of discretion standard. Turner v. Cent. Local School Dist. , 85 Ohio St.3d 95, 99, 706 N.E.2d 1261 (1999). An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 53} Appellant asserts pleading a tort claim instead of a contract claim was "nothing more than a pleading technicality." Appellant's Brief. It argues the litigation focused on one set of facts - whether Appellee failed to adequately perform its work. It claims the contract was intended to be introduced at trial.

{¶ 54} Appellee counters asserting Appellant is oversimplifying the error. It asserts an entirely new cause of action with different elements would have resulted from the amendment. The request was made after the jury was empaneled despite being on notice of Appellee's affirmative defense - failure to state a claim upon which relief could be granted. The jury instructions filed with the trial court dealt solely with negligence.

{¶ 55} Given our standard of review, the trial court's decision did not amount to an abuse of discretion. The jury was already empaneled and the complaint clearly set forth only a negligence cause of action; the complaint alleged Appellee owed a duty to exercise reasonable care during the installation of the roof drain system, Appellee negligently performed that duty, and as a direct and proximate result of breaching that duty the School District sustained injuries to its real property. 7/27/16 Complaint. The jury instructions filed with the court were for negligence. Even though the tort claim and contract claim were probably based on the same facts, there are different elements to the causes of action. Also, as the court noted it appears the contract claim could be refiled; it does not appear the statute of limitations on a contract claim has run. Thus, given the timing of the motion and the fact that more discovery may have to occur it was not an abuse of discretion to deny the motion.

{¶ 56} This assignment of error lacks merit.

Conclusion

{¶ 57} The first three assignments of error are without merit; a directed verdict on the negligence claim was warranted and the decision is affirmed. As to the fourth assignment of error, the trial court's denial of the motion to amend the complaint is affirmed; the trial court did not abuse its discretion in denying the motion to amend the complaint.

Donofrio, J., concurs.

Waite, J., concurs.


source: Caselaw Access Project

author: PRESTON, J.

license: Public Domain

text:
    IN RE: L.M., Adjudged Neglected Child.
    [Thomas E. Morrison, Sr. - Appellant]
    [Lola A. Stewart - Appellant]
    In re: T.M., Adjudged Neglected Child.
    [Thomas E. Morrison, Sr. - Appellant]
    [Lola A. Stewart - Appellant]
    In re: L.M.M., Adjudged Neglected Child.
    [Thomas E. Morrison, Sr. - Appellant]
    [Lola A. Stewart - Appellant]
    NO. 3-18-08 NO. 3-18-09 NO. 3-18-10
    Court of Appeals of Ohio, Third District, Crawford County.
    Date of Decision: September 17, 2018
    Brian N. Gernert for Appellants
    Michael J. Wiener for Appellee
   PRESTON, J.

{¶ 1} Appellants, Lola A. Stewart ("Stewart") and Thomas E. Morrison, Sr. ("Morrison"), appeal the April 4, 2018 decisions of the Crawford County Court of Common Pleas, Juvenile Division, granting permanent custody of their minor children, T.M., L.M., and L.M.M., to Crawford County Job and Family Services (the "agency"). For the reasons that follow, we affirm.

{¶ 2} On April 18, 2017, the agency filed a complaint in case numbers 2175061 and 2175062 alleging T.M. and L.M., respectively, to be neglected children under R.C. 2151.03(A)(2). (Case No. 2175061, Doc. No. 1); (Case No. 2175062, Doc. No. 1). In its complaint, the agency requested that the trial court grant it permanent custody of T.M. and L.M. (Id. ); (Id. ).

{¶ 3} Stewart and Morrison stipulated at a hearing on May 8, 2017 that T.M. and L.M. are neglected children, and the trial court adjudicated them to be neglected children under R.C. 2151.03(A)(2) on June 8, 2018. (Case No. 2175061, Doc. No. 10); (Case No. 2175062, Doc. No. 10). Also at the May 8, 2017 hearing, the trial court granted the agency temporary custody of T.M. and L.M. (Id. ); (Id. ).

{¶ 4} On July 17, 2017, Stewart filed a motion to stay or dismiss the agency's request that the trial court grant it permanent custody of T.M. and L.M. (Case No. 2175061, Doc. No. 11); (Case No. 2175062, Doc. No. 11).

{¶ 5} After a hearing on July 17, 2017, the trial court ordered on August 14, 2017 that T.M. and L.M. remain in the temporary custody of the agency. (Case No. 2175061, Doc. No. 16); (Case No. 2175062, Doc. No. 16).

{¶ 6} At a hearing on September 18, 2017, the agency orally moved to withdraw its request that the trial court grant it permanent custody of T.M. and L.M. and orally requested that the trial court grant it temporary custody of T.M. and L.M. (Case No. 2175061, Doc. No. 21); (Case No. 2175062, Doc. No. 21). As a result of the agency's request, the trial court issued its dispositional entry on October 23, 2017 committing T.M. and L.M. to the temporary custody of the agency under R.C. 2151.353(A)(2)(a). (Id. ); (Id. ).

{¶ 7} The agency submitted its case plans regarding T.M. and L.M. to the trial court on November 29, 2017. (Case No. 2175061, Doc. No. 23); (Case No. 2175062, Doc. No. 23). The trial court approved the case plans on January 25, 2018 and incorporated those plans into its entries. (Case No. 2175061, Doc. No. 26); (Case No. 2175062, Doc. No. 25).

{¶ 8} During the pendency of the cases, Stewart gave birth to L.M.M. in October 2017. (See Case No. 2175181, Doc. No. 1). On December 4, 2017, the agency filed a complaint in case number 2175181 alleging L.M.M. to be a dependent child under R.C. 2151.04(C). (Id. ). In its complaint, the agency requested that the trial court grant it permanent custody of L.M.M. (Id. ). After a shelter-care hearing that same day, the trial court granted the agency temporary custody of L.M.M. (Case No. 2175181, Doc. No. 8).

{¶ 9} Stewart and Morrison stipulated at a hearing on December 22, 2017 that L.M.M. is a dependent child and the trial court adjudicated on January 25, 2018 that L.M.M. is a dependent child under R.C. 2151.04(C). (Case No. 2175181, Doc. No. 16). The trial court ordered that L.M.M. remain in the temporary custody of the agency, approved the agency's case plan regarding L.M.M., which was submitted to the trial court on December 22, 2017, and incorporated the case plan into its entry of adjudication. (Id. ).

{¶ 10} On December 19, 2017, the agency filed motions for permanent custody of T.M. and L.M. (Case No. 2175198, Doc. No. 1); (Case No. 2175199, Doc. No. 1).

{¶ 11} On May 17, 2017, the trial court appointed T.M. and L.M. a Guardian Ad Litem ("GAL"). (Case No. 2175061, Doc. No. 7); (Case No. 2175062, Doc. Nos. 7, 26). The trial court appointed L.M.M. the same GAL on December 4, 2017. (Case No. 2175181, Doc. No. 4). The GAL filed his reports on September 18, 2017 recommending that the trial court award permanent custody of T.M. and L.M. to the agency. (Case No. 2175061, Doc. No. 20); (Case No. 2175062, Doc. No. 20). The GAL filed reports on February 27, 2018 recommending that the trial court award permanent custody of T.M., L.M., and L.M.M. to the agency. (Case No. 2175198, Doc. No. 7); (Case No. 2175199, Doc. No. 7); (Case No. 2175181, Doc. No. 17).

{¶ 12} After a hearing on February 27, 2018, the trial court granted permanent custody of T.M. and L.M. to the agency on April 4, 2018 under R.C. 2151.413. (Case No. 2175198, Doc. No. 8); (Case No. 2175199, Doc. No. 8). Also on April 4, 2018, the trial court issued its dispositional entry granting permanent custody of L.M.M. to the agency under R.C. 2151.353(A)(4). (Case No. 2175181, Doc. No. 18).

{¶ 13} On April 9, 2018, the agency submitted its semi-annual administrative reviews regarding T.M., L.M., and L.M.M., which were accepted by the trial court. (Case No. 2175061, Doc. Nos. 34, 38); (Case No. 2175062, Doc. Nos. 31, 35); (Case No. 2175181, Doc. Nos. 19, 23).

{¶ 14} On May 1, 2018, Stewart and Morrison filed their notices of appeal. They raise one assignment of error for our review.

Assignment of Error

Crawford County Department of Job and Family Services Did Not Act in Good Faith/Make a Good Faith Effort to Reunify Parent and Child/Prevent the Termination of the Parent Child Relationship

{¶ 15} In their assignment of error, Stewart and Morrison argue that the trial court erred in granting permanent custody of T.M., L.M., and L.M.M. to the agency because the agency failed to make a "good faith" effort to reunite them with their children. In particular, Stewart and Morrison contend that the agency failed "to make reasonable modifications to rules, policies, or practices" as required by the Americans with Disabilities Act ("ADA"). (Appellants' Brief at 6).

{¶ 16} The right to raise one's child is a basic and essential right. In re Murray , 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) and Meyer v. Nebraska , 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). "Parents have a 'fundamental liberty interest' in the care, custody, and management of the child." Id. , quoting Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). However, the rights and interests of a natural parent are not absolute. In re Thomas , 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, 2003 WL 22474843, ¶ 7. These rights may be terminated under appropriate circumstances and when the trial court has met all due process requirements. In re Leveck , 3d Dist. Hancock Nos. 5-02-52, 5-02-53, and 5-02-54, 2003-Ohio-1269, 2003 WL 1205082, ¶6.

{¶ 17} When considering a motion for permanent custody of a child, the trial court must comply with the statutory requirements set forth in R.C. 2151.414. See In re C.E. , 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, 2009 WL 3806294, ¶14. R.C. 2151.414(B)(1) establishes a two-part test for courts to apply when determining whether to grant a motion for permanent custody: (1) the trial court must find that one of the circumstances in R.C. 2151.414(B)(1)(a)-(e) apply, and (2) the trial court must find that permanent custody is in the best interest of the child. In re S.G. , 9th Dist. Wayne No. 15AP0005, 2015-Ohio-2306, 2015 WL 3650974, ¶ 10. See also In re Brown , 98 Ohio App.3d 337, 343, 648 N.E.2d 576 (3d Dist. 1994). R.C. 2151.414(B)(1) provides, in relevant part, that a trial court

may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, * * * and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents.

R.C. 2151.414(B)(1)(a). "Specifically concerning R.C. 2151.414(B)(1)(a), '[i]f one or more of the factors enumerated in R.C. 2151.414(E) is found to be present by clear and convincing evidence, the trial court shall find that the child cannot be placed with the parents within a reasonable period of time or should not be placed with the parents.' " In re A.M. , 3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, 2015 WL 4072871, ¶ 13, quoting In re A.F. , 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, 2012 WL 938573, ¶ 54, citing In re Goodwin , 3d Dist. Shelby No. 17-08-12, 2008-Ohio-5399, 2008 WL 4615631, ¶ 23.

{¶ 18} R.C. 2151.414(E) provides, in relevant part:

(E) In determining at a hearing * * * whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing * * * that one or more of the following exist as to each of the child's parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent:
(1) Following the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
* * *
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child[.]

R.C. 2151.414(E)(1), (4).

{¶ 19} " 'If the trial court determines that any provision enumerated in R.C. 2151.414(B)(1) applies,' it must proceed to the second prong of the test, which requires the trial court to 'determine, by clear and convincing evidence, whether granting the agency permanent custody of the child is in the child's best interest.' " In re K.M.S. , 3d Dist. Marion No. 9-15-37, 2017-Ohio-142, 2017 WL 168864, ¶ 23, quoting In re A.F. at ¶ 55, and citing R.C. 2151.414(B)(1). "The best interest determination is based on an analysis of R.C. 2151.414(D)." Id.

{¶ 20} "Under R.C. 2151.414(D)(1), the trial court is required to consider all relevant factors listed in that subdivision, as well as any other relevant factors." Id. at ¶ 24, citing In re H.M. , 3d Dist. Logan Nos. 8-13-11, 8-13-12, and 8-13-14, 2014-Ohio-755, 2014 WL 856394, ¶ 27. The R.C. 2151.414(D)(1) factors include:

(a) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, * * *;
(d) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

R.C. 2151.414(D)(1). "Under this test, the trial court considers the totality of the circumstances when making its best interest determination and no single factor is given greater weight than others by the statute." In re K.M.S. at ¶ 24, citing In re Schaefer , 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56, 857 N.E.2d 532 and In re Z.Y. , 8th Dist. Cuyahoga No. 86293, 2006-Ohio-300, 2006 WL 199012, ¶ 13.

{¶ 21} If the trial court makes these statutorily required determinations, a reviewing court will not reverse a trial court's decision unless it is not supported by clear and convincing evidence. In re H.M.K. , 3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, 2013 WL 5447791, ¶ 43, citing In re Meyer , 98 Ohio App.3d 189, 195, 648 N.E.2d 52 (3d Dist. 1994), citing In re Adoption of Holcomb , 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985) and In re Adoption of Lay , 25 Ohio St.3d 41, 42, 495 N.E.2d 9 (1986). "Clear and convincing evidence is that which is sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established." In re S.G. , 2015-Ohio-2306, 2015 WL 3650974, at ¶ 10, citing Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

{¶ 22} Stewart and Morrison do not challenge any of the trial court's findings under R.C. 2151.414. Rather, Stewart and Morrison contend that the trial court erred by granting permanent custody of T.M., L.M., and L.M.M. to the agency after erroneously concluding that the agency made "good faith efforts" toward reunification. (Appellants' Brief at 14). As an initial matter, because the statute "does not require a children services agency to make a 'good faith' effort to reunify children with their parents," we are assuming that Stewart and Morrison are arguing that the trial court erroneously concluded that the agency made "reasonable efforts" toward reunification. In re N.R.S. , 3d Dist. Crawford Nos. 3-17-07, 3-17-08, and 3-17-09, 2018-Ohio-125, 2018 WL 416827, ¶ 21. See also In re C.F. , 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28, 862 N.E.2d 816 ("When the state intervenes to protect a child's health or safety, '[t]he state's efforts to resolve the threat to the child before removing the child or to permit the child to return home after the threat is removed are called "reasonable efforts." ' "), quoting Crossley, Defining Reasonable Efforts: Demystifying the State's Burden Under Federal Child Protection Legislation , 12 B.U.Pub.Int.L.J. 259, 260 (2003).

{¶ 23} No one section of the Revised Code addresses the concept of reasonable efforts. Overall, Ohio's child-welfare laws are designed to care for and protect children, "whenever possible, in a family environment, separating the child from the child's parents only when necessary for the child's welfare or in the interests of public safety." R.C. 2151.01(A). To that end, various sections of the Revised Code refer to the agency's duty to make reasonable efforts to preserve or reunify the family unit.

In re C.F. at ¶ 29. In particular, under R.C. 2151.419, when a trial court

removes a child from the child's home or continues the removal of a child from the child's home, the court shall determine whether the public children services agency * * * has made reasonable efforts to prevent the removal of the child from the child's home, to eliminate the continued removal of the child from the child's home, or to make it possible for the child to return safely home.

R.C. 2151.419(A)(1). The Supreme Court of Ohio "determined that the trial court is not obligated, under R.C. 2151.419, to make a determination that the agency used reasonable efforts to reunify the family at the time of the permanent custody hearing unless the agency has not established that reasonable efforts have been made prior to the hearing." (Emphasis sic.) In re N.R.S. at ¶ 25, citing In re C.F. at ¶ 41, 43 (concluding that the reasonable-efforts determination under R.C. 2151.419 does not apply to permanent-custody motions under R.C. 2151.413 or to hearings on such motions under R.C. 2151.414 ). "According to the Ohio Supreme Court, the trial court is only obligated to make a determination that the agency has made reasonable efforts to reunify the family at 'adjudicatory, emergency, detention, and temporary-disposition hearings, and dispositional hearings for abused, neglected, or dependent children, all of which occur prior to a decision transferring permanent custody to the state.' " In re B.S. , 3d Dist. Allen No. 1-15-44, 2015-Ohio-4805, 2015 WL 7429850, ¶ 36, quoting In re C.F. at ¶ 41.

{¶ 24} In this case, after the agency withdrew its motions for permanent custody regarding T.M. and L.M., the trial court issued dispositional entries committing T.M. and L.M. to the temporary custody of the agency under R.C. 2151.353(A)(2). At that dispositional hearing, the agency submitted its case plans to the trial court for approval. See In re C.F. at ¶ 29 (noting that R.C. 2151.412"requires the agency to prepare and maintain a case plan for children in temporary custody with the goal '[t]o eliminate with all due speed the need for the out-of-home placement so that the child can safely return home' "), quoting R.C. 2151.412. In its dispositional entries, the trial court approved the agency's case plans after concluding, in part, that the agency's case plans "reasonably address correcting the presenting problems." (Case No. 2175061, Doc. No. 26); (Case No. 2175062, Doc. No. 25). The trial court also incorporated the agency's case plans into its dispositional entries. As such, we conclude that the trial court made the appropriate reasonable-efforts finding prior to its hearing on the agency's motion for permanent custody of T.M. and L.M. Thus, the trial court was not required to determine whether the agency used reasonable efforts to reunify T.M. and L.M. with their parents at the permanent-custody hearing. Compare In re N.R.S. at ¶ 26 (concluding that the trial court was not required to make a reasonable-efforts finding in its permanent-custody entry because it made the required finding in a prior adjudicatory/depositional entry).

{¶ 25} Regardless of whether the trial court needed to make the reasonable-efforts finding again, the trial court made the same findings in its entries granting the agency permanent custody of T.M. and L.M. (Case No. 2175198, Doc. No. 8); (Case No. 2175199, Doc. No. 8). See In re B.S. at ¶ 38. Indeed, the trial court detailed the efforts that the agency took toward remedying the conditions preventing reunification. In particular, the trial court discussed the "deplorable home conditions" which led to the removal of the children from the home. (Case No. 2175198, Doc. No. 8); (Case No. 2175199, Doc. No. 8). The trial court noted that "[t]he on-going caseworker testified she repeatedly instructed [Stewart and Morrison] on what needed to be done to remedy the problem." (Id. ); (Id. ). Further, the trial court discussed the efforts of the agency in consulting with "other social service agencies in the area * * * about the provision of [in-home housekeeping] services [and a life-skills coach] and that neither of these were available in this area * * *." (Id. ); (Id. ).

{¶ 26} In the case of L.M.M., because the trial court issued its dispositional entry granting permanent custody of L.M.M. to the agency under R.C. 2151.353(A)(4), the trial court made its reasonable-efforts findings in its shelter-care entry, adjudicatory entry, and dispositional entry. The trial court concluded in its shelter-care entry that "due to the exigent nature of the circumstances all reasonable efforts to work with the child in the home and prevent a removal was [sic] not possible of completion and the surrounding situation and conditions existing present a significant danger to the safety and welfare of the child for which a removal is necessary to protect the child until the adjudication." (Case No. 2175181, Doc. No. 8). In addition to the requirement under R.C. 2151.419(A)(1) that the trial court determine whether the agency made reasonable efforts to preserve or reunify the family unit, R.C. 2151.419(A)(1) further provides:

If the agency removed the child from home during an emergency in which the child could not safely remain at home and the agency did not have prior contact with the child, the court is not prohibited, solely because the agency did not make reasonable efforts during the emergency to prevent the removal of the child, from determining that the agency made those reasonable efforts. In determining whether reasonable efforts were made, the child's health and safety shall be paramount.

Moreover, the trial court adopted and incorporated the agency's case plan, which identified reunification as its goal, into its adjudicatory entry. (See Case No. 2175181, Doc. No. 16). Finally, as we discussed above, the trial court detailed the efforts that the agency took to reunify the family in its dispositional entries granting permanent custody of the children to the agency. (See Case No. 2175181, Doc. No. 18). Accordingly, we conclude that the trial court more than sufficiently made its reasonable-efforts determinations in L.M.M.'s case.

{¶ 27} The trial court's reasonable-efforts findings are supported by clear and convincing evidence. At the February 27, 2018 permanent-custody hearing, Holly Kaple ("Kaple"), who was the Crawford County Children Services's ("CCCS") intake caseworker assigned to the case involving T.M. and L.M., testified that T.M. and L.M. were removed from the home on April 14, 2017 due to the "deplorable" conditions of the home. (Feb. 27, 2018 Tr. at 10-12). According to Kaple, "[t]he home had a strong odor about it. There was a cockroach infestation in the home. There were animals. There were two dogs in the home, and the floors were covered with feces and cockroaches." (Id. at 12). Kaple identified State's Exhibit 6 as the photographs that she took depicting the conditions of the home on April 14, 2017. (Id. at 12-13).

{¶ 28} Next, Brook Rachel ("Rachel"), a caseworker with CCCS, testified that she was assigned to the case involving T.M. and L.M., and L.M.M. after her birth. (Id. at 18-19). According to Rachel, she "would make monthly home visits to their home" and "would do notes throughout the home, and then [she] would also take pictures throughout the home" during her visits. (Id. at 19-20). Rachel identified State's Exhibits 7, 8, and 9 as photographs that she took depicting conditions of the home in July, August, and September 2017, respectively. (Id. at 20-21, 24). Rachel testified that the family moved to a new residence in October 2017. (Id. at 27). Rachel identified State's Exhibit 10 as photographs depicting the condition of the new residence in October 2017. (Id. ). The family again moved in November 2017. (Id. at 29). Rachel identified State's Exhibits 11 and 12 as photographs depicting the conditions of that residence in November and December 2017, respectively. (Id. ).

{¶ 29} According to Rachel, Stewart and Morrison were informed that the residence to which they moved in November 2017 exhibited structural concerns "that would not qualify" as suitable for T.M. and L.M. to be reunited with them. (Id. at 32). Despite that information, Stewart and Morrison "chose to rent this trailer with the structural concerns." (Id. ). After Rachel provided Stewart and Morrison a list of items to "fix" in the residence, Stewart and Morrison again moved in January 2018. (Id. at 36). (See State's Ex. 15). (See also Feb. 27, 2018 Tr. at 40-41). Rachel identified State's Exhibits 13 and 14 as photographs depicting the conditions of that residence in January and February 2018, respectively. (Feb. 27, 2018 Tr. at 36-39, 42-44).

{¶ 30} Rachel testified that she "always told [Stewart and Morrison] to clean the home as if the children were living in the home." (Id. at 35). Rachel also testified that she provided instructions on items that Stewart and Morrison needed to repair to permit reunification. (Id. at 39). Indeed, Rachel identified State's Exhibit 15 as "a home improvement list that [she]

had given to the family" detailing items reflected by State's Exhibits 12 and 13 that needed to be remedied for reunification. (Id. at 40). Despite Rachel's instructions, she continued to observe conditions preventing reunification. (See id. at 35). (See also id. at 44).

{¶ 31} Rachel testified that the agency investigated alternative placements for T.M. and L.M. throughout the agency's "nine open cases with the family." (Id. at 46-47).

{¶ 32} On cross-examination, Rachel testified that she established the family's case plans, which identified reunification as their goal. (Id. at 48). (See Case No. 2175061, Doc. No. 26); (Case No. 2175062, Doc. No. 25); (Case No. 2175181, Doc. No. 16) (See also Feb. 27, 2018 Tr. at 59-60). As part of the case plans, Stewart and Morrison were to work with the Crawford County Board of Developmental Disabilities ("CCBDD"); however, it was discovered that Stewart and Morrison were not eligible for services with that agency. (Feb. 27, 2018 Tr. at 48-49). Rachel testified, "We've had cases like [Stewart and Morrison's], or home condition cases, and we have not yet been able to find any remedy or service that somebody comes in and teaches them how to clean or cleans their home for them." (Id. at 52). (See also id. at 62). Rachel testified that she informed Stewart and Morrison of the availability of monetary assistance to assist them in securing appropriate housing; however, she testified that Stewart and Morrison did not take advantage of that service. (Id. at 57-58).

{¶ 33} On re-direct examination, Rachel testified that of the nine times that T.M. and L.M. were removed from their home, eight were due to "filthy, deplorable home conditions." (Id. at 78). Rachel further testified that, of those eight times, Stewart and Morrison remedied the home conditions after the agency provided them with instructions. (Id. at 78-79). According to Rachel, Stewart and Morrison "failed to implement" those instructions in this case. (Id. at 79). Rachel testified that she explored home-care-services options that were available to assist Stewart and Morrison. (Id. at 79-80).

{¶ 34} The GAL also testified. (Id. at 81). He testified that, even if Stewart and Morrison qualified for services with the CCBDD, that agency does not provide home-care services. (Id. at 87-88).

{¶ 35} Thus, there is clear and convincing evidence supporting the trial court's conclusion that the agency made reasonable efforts toward reunification. Nonetheless, Stewart and Morrison argue that the agency's efforts were not reasonable because it failed "to utilize reasonable modifications" as required by the ADA. (Appellants' Brief at 14). We reject Stewart and Morrison's argument.

{¶ 36} First, Stewart and Morrison failed to allege any violation of the ADA in the trial court. As such, they waived all but plain error on appeal. In re J.C. , 2d Dist. Montgomery No. 25608, 2013-Ohio-3937, 2013 WL 5172764, ¶ 8 ; In re L.B.J. , 4th Dist. Lawrence Nos. 17CA2 and 17CA3, 2017-Ohio-4416, 2017 WL 2651866, ¶ 17, citing Snyder v. Stevens , 4th Dist. Scioto No. 12CA3465, 2012-Ohio-4120, 2012 WL 3893525, ¶ 15. See In re Dailey , 10th Dist. Franklin No. 04AP-1346, 2005-Ohio-2196, 2005 WL 1055783, ¶ 23. " '[I]n appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.' "

Brandon v. Brandon , 3d Dist. Mercer No. 10-08-13, 2009-Ohio-3818, 2009 WL 2356903, ¶ 37, quoting Goldfuss v. Davidson , 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus.

{¶ 37} Even assuming that Stewart and Morrison properly asserted plain error on appeal, their argument does not amount to plain error because "an alleged violation of the ADA is not a defense to a permanent-custody motion." In re J.C. at ¶ 7. See In re L.B.J. at ¶ 18 ("We find no plain error because the failure to comply with the ADA does not serve as a basis for invalidating an award of permanent custody and it cannot be raised as a defense to termination of parental rights."), citing In re Harmon , 4th Dist. Scioto No. 00CA2693, 2000 WL 1424822, *8 (Sept. 25, 2000) ("We do not believe that a failure to comply with the ADA serves as a basis for invalidating an award of permanent custody. Rather, the ADA appears to contemplate a separate procedure for its enforcement."), citing In re Rodriguez , 9th Dist. Wayne No. 98CA007073, 1999 WL 568115, *7-8 (Aug. 4, 1999), and citing In re B.A. , 8th Dist. Cuyahoga No. 104496, 2016-Ohio-7786, 73 N.E.3d 1156, ¶ 7, 10 ("Ohio courts of appeals are generally in agreement that an alleged violation of the ADA does not provide a defense in an action brought to terminate parental rights. * * * [B]ased on numerous holdings across the country, this court takes the position that a violation of the ADA is not a valid defense to a permanent custody action."), In re J.C. at ¶ 7 ("First and foremost, an alleged violation of the ADA is not a defense to a permanent-custody motion. * * * The procedure for enforcing the ADA begins with the filing of a complaint with a designated agency."), In re C.W. , 1st Dist. Hamilton No. C-110342, 2011-Ohio-4756, 2011 WL 4375334, ¶ 41 ("We are persuaded by the Ninth Appellate District's analysis [in In re Rodriguez ], as well as that of other Ohio appellate districts that have addressed the issue, in holding that an alleged violation of the ADA by a public children-services agency may not be asserted as a defense in a permanent-custody action brought by that agency."), and In re D.J. , 12th Dist. Butler No. CA2008-06-142, 2008-Ohio-5424, 2008 WL 4616598, ¶ 11 ("[A]gain we 'decline the invitation to create a new means of enforcement that was not adopted by Congress or included by the attorney general in the regulations adopted to implement the ADA.' "), quoting In re Moore , 12th Dist. Butler No. CA99-09-153, 2000 WL 1252028, *8 (Sept. 5, 2000).

{¶ 38} Therefore, we conclude that the trial court did not err by granting permanent custody of T.M., L.M., and L.M.M. to the agency. Stewart and Morrison's assignment of error is overruled.

{¶ 39} Having found no error prejudicial to the appellants herein in the particulars assigned and argued, we affirm the judgments of the trial court.

Judgments Affirmed

ZIMMERMAN and SHAW, J.J., concur.

      A trial court's consideration of a motion for permanent custody under R.C. 2151.353(A)(4) or 2151.413 involves considering the requirements of R.C. 2151.414.


author: KLATT, J.

text:
    James HASSEY, Appellant-Appellant, v. CITY OF COLUMBUS, Appellee-Appellee.
    No. 17AP-726
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on September 27, 2018
    On brief: Daniel H. Klos, for appellant. Argued: Daniel H. Klos.
    On brief: Zack Klein, City Attorney, and Susan E. Thompson, for appellee. Argued: Susan E. Thompson.
    DECISION
   KLATT, J.

{¶ 1} Appellant, James Hassey, appeals a judgment of the Franklin County Court of Common Pleas affirming the order of the Columbus Civil Service Commission that affirmed the termination of Hassey's employment with the Columbus Department of Public Safety, Division of Police ("Division"). For the following reasons, we affirm the trial court's judgment.

{¶ 2} From July 2002 to June 2014, the Division employed Hassey as a police officer. In September 2013, Hassey's ex-girlfriend, Elde Shepherd, filed a citizen's complaint with the Division's Internal Affairs Bureau ("IAB") regarding Hassey. Shepherd alleged that Hassey engaged in various misconduct, including regularly smoking marijuana. David M. Barrowman, a sergeant with IAB, initiated an investigation into Shepherd's allegations.

{¶ 3} On the morning of September 26, 2013, Barrowman notified Hassey of IAB's investigation and ordered Hassey to report for an IAB interview the next morning. That evening, Hassey called his supervisor and said that he planned to admit to using marijuana during his IAB interview. The Division immediately relieved Hassey from his regular assignment and ordered Hassey to contact the employee assistance program.

{¶ 4} Barrowman interviewed Hassey the next day. During that interview, Hassey stated that he had smoked marijuana approximately three to four times a month for the previous three to five years. Hassey admitted to last smoking marijuana two days before his interview. Hassey's sister periodically gave Hassey small amounts of marijuana. Hassey claimed that he only smoked one or two puffs at a time, and that it took him a week to two weeks to finish a joint. Occasionally, Hassey shared the marijuana he received from his sister with Shepherd.

{¶ 5} Barrowman asked Hassey if he would volunteer to take a drug test. Hassey declined on the advice of his attorney. However, Hassey conceded that if he took the test, the results would be positive for marijuana.

{¶ 6} Based on Hassey's admissions, the Division charged Hassey with violation of Rules of Conduct 1.36 and 1.42(C). Rule 1.36, entitled "Unbecoming Conduct," provides that:

Division personnel shall conduct themselves at all times, both on and off duty, in such a manner as to reflect favorably on the Division. Unbecoming conduct is behavior that implicitly or explicitly dishonors the Division and/or its members, reflects discredit upon the individual as a member of the Division, or impairs the operation or efficiency of the Division or the individual. This includes, but is not limited to, derogatory, discriminatory, or harassing comments, gestures, or insinuations.

(Hassey Ex. 12 at 8.) Rule 1.42(C) states that "Division personnel shall not consume, possess, or purchase illicit/illegal drugs except as required in the line of duty." (Hassey Ex. 12 at 9.) The Division asserted that Hassey violated Rules 1.36 and 1.42(C) by possessing and using marijuana, as well as supplying marijuana to Shepherd for her use.

{¶ 7} On March 20, 2014, the chief of police conducted a disciplinary conference regarding the charges against Hassey. During the conference, Hassey acknowledged that he had violated the Rules of Conduct as charged. Hassey, however, submitted evidence showing that he had undergone an addiction assessment and completed the three educational classes recommended as a result of the assessment. Hassey also assured the chief that he no longer used marijuana.

{¶ 8} Hassey's union representative asked the chief to follow Section 17.9 of the collective bargaining agreement between the city of Columbus and the Fraternal Order of Police, Capital City Lodge No. 9, when disciplining Hassey. That section states:

The City will not discharge a member who tests positive a first time (unless the member tests positive for use of a controlled substance, the use or possession of which in any amount would constitute a felony), provided the member fulfills the obligations set forth in (A) through (F) below. * * * A member * * * who tests positive for any other prohibited substance [other than alcohol] for the first time and who cooperates in fulfilling the obligations set forth in (A) through (F) below may be suspended. The length of such suspension shall be determined on a case-by-case basis, but shall not exceed twenty-four (24) duty hours. This limitation on discipline shall not limit the City in imposing discipline up to and including termination, for gross misconduct that may be coincident with a member's improper drug or alcohol use. A member who tests positive the first time * * * must do the following in order to take advantage of the foregoing limitations on discipline:
(A) Cooperate in an evaluation for chemical dependency by an individual qualified under 49 C.F.R. Part 382 to be a Substance Abuse Professional and provide the City with a copy of the evaluation;
(B) Successfully complete all counseling, treatment or after-care (of up to 12 months) recommended by the Substance Abuse Professional;
(C) Discontinue (and not resume) the use of illegal drugs and misuse of alcohol;
(D) Agree to authorize all persons involved in evaluating, counseling, diagnosing and treating the member, to disclose to the personnel specified in Section 17.13, the member's evaluation, progress, cooperation, drug and alcohol use and successful completion or non-completion of counseling and treatment, and any threat to property or safety involved in the member performing job duties or returning to active duty;
(E) Agree to a return to duty test (which must be negative before the member will be released to return to his/her regular assignment) and submit to follow-up testing, at times determined by the City, up to seven (7) times in a twenty-four (24) month period for violations involving illegal drugs * * * ; and
(F) Agree that during or after this follow-up testing period in (E) above, if the member tests positive again or otherwise violates this Article, the member may properly be terminated.

(Hassey Ex. 1 at 64-65.) Hassey's representative told the chief that Hassey had complied with the (A) through (F) requirements within his control, and he was willing perform the remainder of the requirements.

{¶ 9} Hassey's union representative conceded that Section 17.9 was not directly applicable because Hassey had not tested positive for marijuana. However, the representative asserted that Hassey's admission to marijuana use was analogous to testing positive and, consequently, the discipline imposed for Hassey's misconduct should not exceed a 24-hour suspension.

{¶ 10} After the disciplinary conference, the chief of police found that the facts uncovered during the IAB investigation and the statements Hassey made during the conference sustained the violations of Rules 1.36 and 1.42(C). The chief recommended that the director of public safety suspend Hassey for 240 working hours or 30 working days and terminate Hassey's employment.

{¶ 11} Hassey next appeared at a hearing before the director of public safety. Again, Hassey admitted to the charges against him. Hassey acknowledged that his behavior warranted discipline, but he asked that the director not discharge him. After considering Hassey's testimony and the evidence revealed by the IAB investigation, the director of public safety upheld the chief of police's decision to sustain the charges against Hassey and the recommendation to terminate Hassey's employment. Hassey's termination became effective on June 11, 2014.

{¶ 12} Hassey appealed the director's decision to the Columbus Civil Service Commission ("Commission"). At the hearing before the Commission, Hassey presented evidence regarding the discipline imposed on four other police officers after each had engaged in drug- or alcohol-related misconduct. Each of the four officers received a suspension, rather than termination. Hassey argued that, in light of the lesser discipline received by the four other officers, the director of public safety had punished him too harshly.

{¶ 13} Hassey also asserted that the director of public safety was required to treat him the same as an officer who tested positive for illegal drugs for the first time. Therefore, according to Hassey, the director of public safety could only suspend him for up to 24 hours as provided in Section 17.9 of the CBA.

{¶ 14} The Commission rejected both of Hassey's arguments. In an order issued February 23, 2015, the Commission affirmed the termination of Hassey's employment.

{¶ 15} Hassey then appealed the Commission's order to the trial court. Hassey raised before the trial court the same arguments he had made to the Commission. In a judgment dated September 12, 2017, the trial court affirmed the Commission's order.

{¶ 16} Hassey now appeals the September 12, 2017 judgment to this court, and he assigns the following errors:

1. The Trial Court erred in finding Appellant's exclusive remedy was to file a grievance pursuant to the grievance Section 17.9 of the CBA by the procedure set forth in Article 12 of the CBA.
2. The Trial Court erred in finding Appellant's conduct was not comparable with four other police officers.
3. The Trial Court failed to find that the Appellant was treated unequally, and thus denied Appellant Constitutional Equal Protection.
4. The Court erred when it found it was without jurisdiction to provide Appellant with a remedy because Appellant's sole remedy was under Section 17.9 of the CBA.

{¶ 17} Hassey appealed the Commission's decision affirming the termination of his employment to the trial court pursuant to R.C. 2506.01. In such an appeal, the trial court must determine whether the appealed order "is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record." R.C. 2506.04. The trial court may then "affirm, reverse, vacate, or modify the order * * * or remand the cause" to the Commission "with instructions to enter an order * * * consistent with the findings or opinion" of the trial court. Id.

{¶ 18} The court of appeals' standard of review under R.C. 2506.04 is more limited than the standard the trial court applies. Independence v. Office of the Cuyahoga Cty. Executive , 142 Ohio St.3d 125, 2014-Ohio-4650, ¶ 14, 28 N.E.3d 1182. The court of appeals reviews the trial court's judgment only on questions of law and lacks the extensive power granted to the trial court to weigh the evidence. Id. ; Cleveland Clinic Found. v. Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, ¶ 25, 23 N.E.3d 1161. "In sum, the standard of review for courts of appeals in administrative appeals is designed to strongly favor affirmance. It permits reversal only when the common pleas court errs in its application or interpretation of the law or its decision is unsupported by a preponderance of the evidence as a matter of law." Cleveland Clinic Found. at ¶ 30.

{¶ 19} We will address Hassey's first and fourth assignments of error together as they raise the same error. By his first and fourth assignments of error, Hassey argues that the trial court erred in concluding that it did not have jurisdiction to apply Section 17.9 of the CBA to Hassey. We agree that the trial court erred in its analysis of the jurisdictional issue.

{¶ 20} The trial court exercised jurisdiction over this appeal under R.C. 2506.01(A), which authorizes courts of common pleas to review "every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department, or other division of any political subdivision of the state." This appeal came to the trial court after the Commission affirmed the director of public safety's decision to terminate Hassey's employment. The Commission reviewed Hassey's discharge pursuant to Sections 109 and 149-1 of the Columbus City Charter, which confer jurisdiction on the Commission to hear appeals from police officers who are terminated from employment with the Division. See Columbus City Charter, Section 109 ("Any person in the division of police * * * under the exclusive control of the chief thereof, who is suspended, reduced in rank or dismissed from the department by the director of public safety may appeal from the decision of such officer to the civil service commission * * *."); Columbus City Charter, Section 149-1 ("Except as otherwise provided in this charter any employee of the City of Columbus in the classified service, who is suspended, reduced in rank or compensation or discharged * * * may appeal from such decision or order therefor, to the civil service commission * * *.").

{¶ 21} Based on Sections 109 and 149-1 of the Columbus City Charter and R.C. 2506.01(A), it would seem that the Commission and trial court properly exercised jurisdiction over Hassey's appeal. However, R.C. Chapter 4117, the Public Employees' Collective Bargaining Act, complicates the jurisdictional question. The provisions of R.C. Chapter 4117 prevail over home-rule charters. Cincinnati v. Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Emps., AFL-CIO , 61 Ohio St.3d 658, 662, 576 N.E.2d 745 (1991). Therefore, where a city employee is subject to a collective bargaining agreement, R.C. Chapter 4117-and specifically R.C. 4117.10(A) -tempers the employee's ability to appeal a discharge under the Columbus City Charter.

{¶ 22} According to R.C. 4117.10(A), a collective bargaining agreement between a public employer and a bargaining unit "governs the wages, hours, and terms and conditions of public employment covered by the agreement." Moreover, R.C. 4117.10(A) states that "[i]f the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure." Therefore, pursuant to R.C. 4117.10(A), a collective bargaining agreement controls all matters related to the terms and conditions of employment. Fischer v. Kent State Univ. , 10th Dist. No. 14AP-789, 2015-Ohio-3569, 41 N.E.3d 840, ¶ 18 ; Cerrone v. Univ. of Toledo , 10th Dist. No. 11AP-573, 2012-Ohio-953, 2012 WL 760856, ¶ 6 ; Gudin v. W. Res. Psych. Hosp. , 10th Dist. No. 00AP-912, 2001 WL 664389 (June 14, 2001) ; Oglesby v. Columbus , 10th Dist. No. 00AP-544, 2001 WL 102257 (Feb. 8, 2001). Additionally, if a collective bargaining agreement provides for a grievance procedure culminating in final and binding arbitration, then that procedure provides the exclusive remedy for violations of an employee's employment rights. Fischer at ¶ 18 ; Cerrone at ¶ 8 ; Ryther v. Gahanna , 10th Dist. No. 04AP-1220, 2005-Ohio-2670, 2005 WL 1274212, ¶ 12 ; Gudin ; Oglesby.

{¶ 23} R.C. 4117.10(A), thus, prevents the dual litigation of employment decisions through both arbitration and a separate appeal to a civil service commission. In re Civ. Serv. Charges Against Piper , 142 Ohio App.3d 765, 772, 757 N.E.2d 3 (2d Dist.2001) ; In re Lemley-Wingo , 4th Dist. No. 1622, 1990 WL 127040 (Aug. 22, 1990). Under R.C. 4117.10(A) :

The enforcement of grievances supersedes civil service appeals. * * * If the grievance arbitration process is binding and final, no appeal can be taken to any body. * * * Other bodies are stripped of legal jurisdiction to hear appeals.

Lemley-Wingo , quoting O'Reilly, Ohio Public Employee Collective Bargaining 173 (1984); accord Mun. Constr. Equip. Operators' Labor Council v. Cleveland , 8th Dist. No. 104114, 2016-Ohio-5934, 71 N.E.3d 655, ¶ 12 (" R.C. 4117.10(A) provides that where a collective bargaining agreement contains a grievance process that includes final binding arbitration, a civil service commission or state personnel board does not have jurisdiction to hear an appeal from that decision.").

{¶ 24} The CBA at issue here addresses disciplinary action, including termination. (Hassey Ex. 1 at Section 10.1.) The CBA also incorporates a grievance procedure that concludes with final and binding arbitration. (City Ex. 1 at Section 12.5(E)(3), Brief of Appellee, City of Columbus, Department of Public Safety, Division of Police on the Applicability of Section 17.9 of the CBA). If we confined our review to those two contractual provisions, we would conclude that Hassey could only contest his discharge through the grievance procedure, and neither the Commission nor the trial court had jurisdiction to consider Hassey's appeal.

{¶ 25} However, the CBA also states that "[n]othing in this Grievance Procedure shall deny members any rights available at law to achieve redress of their legal rights, including the right to appeal to another forum." (City Ex. 1 at Section 12.3, Brief of Appellee, City of Columbus, Department of Public Safety, Division of Police on the Applicability of Section 17.9 of the CBA). As we explained above, Sections 109 and 149-1 of the Columbus City Charter give police officers the right to appeal certain employment decisions, including discharge, to the Commission.

Consequently, in Section 12.3, the CBA permits a member to pursue an appeal of the termination of his employment under Sections 109 and 149-1 of the Columbus City Charter, despite the existence of final and binding arbitration. The CBA thus contravenes the part of R.C. 4117.10(A) that limits redress of employment decisions to the grievance procedure if that procedure includes final and binding arbitration.

{¶ 26} The question then arises, "Can a term in a collective bargaining agreement override the law?" For the most part, the answer is "yes." R.C. 4117.10(A), which restricts the remedies available for contesting employment decisions, also sets out the relationship between provisions of a collective bargaining agreement and state or local laws. Streetsboro Edn. Assn. v. Streetsboro City School Dist. Bd. of Edn. , 68 Ohio St.3d 288, 291, 626 N.E.2d 110 (1994). Under R.C. 4117.10(A), if a provision of a collective bargaining agreement conflicts with the law, the provision prevails over the law, except for laws specifically enumerated in the statute. Id. ; State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn. , 71 Ohio St.3d 26, 29, 641 N.E.2d 188 (1994).

{¶ 27} The rights to appeal a discharge through the State Personnel Board of Review or a civil service commission are not laws exempted from the bargaining table under R.C. 4117.10(A). Lemley-Wingo. In other words, the statutory or charter-based right to appeal "is a proper subject for a collective bargaining agreement" and "may be either retained or bargained away by the parties." Fields v. Summit Cty. Executive Branch , 83 Ohio App.3d 68, 73, 613 N.E.2d 1093 (9th Dist.1992). Consequently, even if a collective bargaining agreement includes a grievance procedure that culminates in final and binding arbitration, that agreement may allow an employee to pursue remedies provided by law instead of following the grievance procedure. Davis v. Hocking Cty. Sheriff , 76 Ohio App.3d 843, 847-48, 603 N.E.2d 406 (4th Dist.1992). In such a situation, if the employee elects to invoke his statutory or charter-based right to appeal, the administrative entity with the legal authority to hear the appeal possesses the necessary jurisdiction to determine the matter before it. Id. at 848, 603 N.E.2d 406.

{¶ 28} Here, the CBA permitted Hassey to appeal his discharge to the Commission under Sections 109 and 149-1 of the Columbus City Charter. The Commission, therefore, properly exercised jurisdiction over Hassey's appeal. Pursuant to R.C. 2506.01(A), the trial court properly exercised jurisdiction over Hassey's appeal of the Commission's order.

{¶ 29} The trial court recognized that it possessed jurisdiction to determine Hassey's appeal. It, however, refused to consider one issue: whether the city violated Section 17.9 of the CBA. In so doing, the court stated:

Here, the CBA provides for final and binding arbitration of all grievances. Appellant's exclusive remedy, therefore, for the Division's alleged violation of his rights under Section 17.9 of the CBA, was through the CBA's grievance procedure. Appellant, however, did not file a grievance, and he therefore failed to seek the sole remedy available to him. This Court is without jurisdiction to provide that remedy to Appellant.

(Sept. 12, 2017 Jgmt. at 18.)

{¶ 30} As we explained above, the CBA did not limit Hassey's remedy to the grievance procedure. Rather, the CBA permitted Hassey to appeal the termination of his employment to the Commission, and nothing in the CBA restricted the scope of the Commission's jurisdiction on appeal. Consequently, the Commission (and, on appeal, the trial court) had jurisdiction to enforce Section 17.9 of the CBA and modify Hassey's discipline in accordance with that section.

{¶ 31} Our conclusion in this matter is consistent with prior precedent. In In re Civil Serv. Charges Against Piper , 142 Ohio App.3d 765, 757 N.E.2d 3 (2d Dist.2001), a police officer appealed a 35-day suspension to a civil service commission, which upheld the suspension. The officer then appealed to the court of common pleas. The police officer argued that the city could not discipline him because it had violated the collective bargaining agreement when it failed to institute disciplinary proceedings against him within the time period specified in the agreement. The trial court concluded that it lacked jurisdiction to consider the timing provision in the collective bargaining agreement, and it affirmed the civil service commission's decision. On appeal, the court of appeals held that, where an employee pursues an administrative appeal instead of a grievance, " R.C. 4117.10(A) d[oes] not prohibit [a civil service commission's] jurisdiction to interpret the labor contract in the context of the disciplinary action under consideration." In re Civil Serv. Charges Against Piper at 772, 757 N.E.2d 3. The court of appeals, thus, found that the jurisdiction to review the disciplinary action inherently included the authority to consider the timeliness issue. Id.

{¶ 32} Here, like in In re Civil Serv. Charges Against Piper , the Commission and the trial court had the jurisdiction to review all issues relevant to the discipline imposed, including whether the city complied with the CBA. Accordingly, the trial court erred in concluding that it lacked jurisdiction to consider Hassey's argument that Section 17.9 applied to him and limited the discipline the director of public safety could impose on him.

{¶ 33} Although we have found error, our review is not complete. A reviewing court will not reverse a correct judgment merely because a trial court relied on an erroneous reason as the basis for its determination. Joyce v. Gen. Motors Corp. , 49 Ohio St.3d 93, 96, 551 N.E.2d 172 (1990) ; Reid v. Plainsboro Partners, III , 10th Dist. No. 09AP-442, 2010-Ohio-4373, 2010 WL 3610931, ¶ 20. In other words, "when a trial court has stated an erroneous basis for its judgment, an appellate court must affirm the judgment if it is legally correct on other grounds, that is, it achieves the right result for the wrong reason, because such an error is not prejudicial." Reynolds v. Budzik , 134 Ohio App.3d 844, 846, fn. 3, 732 N.E.2d 485 (6th Dist.1999).

{¶ 34} Here, in addition to advancing the jurisdictional argument, the city argues that Section 17.9 of the CBA simply does not apply to Hassey. We agree.

{¶ 35} "A collective bargaining agreement is a contract, and 'the overriding concern of any court when construing a contract is to ascertain and effectuate the intent of the parties.' " State ex rel. Kabert v. Shaker Heights City School Bd. of Edn. , 78 Ohio St.3d 37, 44, 676 N.E.2d 101 (1997), quoting TRINOVA Corp. v. Pilkington Bros., P.L.C. , 70 Ohio St.3d 271, 276, 638 N.E.2d 572 (1994). The intent of the parties is presumed to reside in the language the parties chose to employ in the contract. Kelly v. Med. Life Ins. Co. , 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph one of the syllabus.

{¶ 36} In Section 17.9, the city promised "not [to] discharge a member who tests positive a first time" and, instead, to discipline a member "who tests positive for [a] prohibited substance for the first time" with a suspension of up to 24 hours if the member fulfills the listed obligations.

(Hassey Ex. 1 at 64-65.) Thus, by its plain language, Section 17.9 only restricts the city's disciplinary options to a 24-hour or shorter suspension when a police officer tests positive for a prohibited substance for the first time. Hassey did not test positive; he instead admitted to long-term marijuana use. Section 17.9, therefore, does not apply to Hassey and he is not entitled to its protection.

{¶ 37} Indeed, on appeal, Hassey concedes that he has no remedy under Section 17.9 because he never tested positive. Hassey, instead, maintains that the trial court should have considered Section 17.9 as evidence of the appropriate level of discipline for his misconduct. We, however, will not consider that argument because Hassey waived it when he did not raise it before the trial court. See Columbus City School Bd. of Edn. v. Franklin Cty. Bd. of Revision , 144 Ohio St.3d 549, 2015-Ohio-4837, 45 N.E.3d 968, ¶ 14, quoting MacConnell v. Ohio Dept. of Commerce , 10th Dist. No. 04AP-433, 2005-Ohio-1960, 2005 WL 995590, ¶ 21 (" 'Generally, a party waives the right to appeal an issue that could have been but was not raised in earlier proceedings.' "). In his trial court briefing, Hassey advocated the more extreme position that he was "entitled to the protection of the CBA at Section 17.9," and the trial court had an obligation:

to identify with clarity that Columbus [p]olice officers who make admissions to first[-]time use of [prohibited] substances * * * and who otherwise meet the criteria of Section 17.9 need not have undergone testing to be afforded the protection and treatment intended by that section.

(June 8, 2015 Brief of Appellant at 62, 63.) Under the plain language of Section 17.9, that argument fails. Accordingly, we sustain Hassey's first and fourth assignments of error, but we conclude that our ruling on those assignments does not justify reversal of the trial court's judgment.

{¶ 38} By Hassey's second assignment of error, he argues that the trial court erred in finding his misconduct distinguishable from the misconduct of four other officers. Hassey contends that, given the similarity of the misconduct at issue, discharge was too harsh a punishment when compared to the lesser discipline received by the four other officers. We agree with the trial court that the significant differences between Hassey's and the other officers' misconduct preclude any comparison between the discipline meted out to the other officers and the discipline Hassey received.

{¶ 39} Before the Commission, Hassey presented evidence regarding four other officers: Nicole Prysock, Ralph Taylor, Andrew Radich, and Joshua Wagner. Prysock was disciplined with a 160-hour suspension because she returned to a high school student a substance believed to be marijuana that she had seized earlier in the day. Taylor received a 64-hour suspension for purchasing and smoking marijuana while off duty. Radich was disciplined with a 56-hour suspension for driving under the influence of alcohol with a loaded handgun in his automobile. The chief of police recommended that Wagner receive a 120-hour suspension for driving under the influence of alcohol with a loaded handgun in his automobile. Wagner, however, retired before the imposition of that discipline.

{¶ 40} After reviewing each of the four officers' misconduct, the trial court concluded that none of the four officers engaged in misconduct similar to Hassey's misconduct. We agree. As the trial court pointed out, each officer violated the Rules of Conduct on one occasion. No evidence established that any of the officers repeatedly violated the Rules of Conduct over a course of years like Hassey. Even more fundamentally, none of the officers did anything like what Hassey did, i.e., none used an illegal substance for years and shared that illegal substance with another.

{¶ 41} On appeal, Hassey argues that, in many respects, his misconduct is less serious than that engaged in by the four other officers. However, this argument only emphasizes the difference between the officers and Hassey and, thus, actually refutes the assertion in the assignment of error that Hassey's misconduct is comparable to the misconduct of the other officers. Hassey also argues that, like him, the other officers exposed the Division to potential negative publicity. While this is true, it does not make the nature of the officers' misconduct the same as Hassey's.

{¶ 42} In sum, we reject Hassey's contention that the trial court erred when it concluded that Hassey was not treated differently from other, similarly situated officers. Accordingly, we overrule Hassey's second assignment of error.

{¶ 43} By Hassey's third assignment of error, he argues that the termination of his employment violated his equal protection rights because he was disciplined more harshly than police officers disciplined pursuant to Section 17.9 of the CBA. Hassey bases this alleged equal protection violation on the "class-of-one" theory. Under that theory, a person may establish an equal protection violation when the state intentionally treats the person differently than those similarly situated without a rational basis for the difference in treatment. Engquist v. Oregon Dept. of Agriculture , 553 U.S. 591, 601, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008).

{¶ 44} Hassey's argument fails for two reasons. First, he did not raise it in the trial court, so it is waived. Columbus City School Bd. of Edn. , 144 Ohio St.3d 549, 2015-Ohio-4837, 45 N.E.3d 968, at ¶ 14. Second, "the class-of-one theory of equal protection has no application in the public employment context." Engquist at 607, 128 S.Ct. 2146. Accordingly, we overrule Hassey's third assignment of error.

{¶ 45} For the foregoing reasons, we overrule Hassey's second and third assignments of error. We sustain Hassey's first and fourth assignments of error but conclude that our ruling on those assignments of error does not warrant reversal of the trial court's judgment. Consequently, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

TYACK and HORTON, JJ., concur.

      Hereinafter, we will refer to the collective bargaining agreement at issue in this case as "the CBA." We will use "collective bargaining agreement" when referring to such agreements generally.