author: Cunningham, Judge.

text:
    Dolly BEATTIE, Plaintiff-Appellant/Cross-Apellee, v. Terrance MCCOY, and State Farm Fire & Casualty Company, Defendants, and OHA Insurance Solutions, Inc., Defendant-Appellee/Cross-Appellant.
    NOS. C-170197 C-170211
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: June 29, 2018
    Bingham Greenebaum Doll LLP, Alex Rodger, Cincinnati, and Daniel J. Donnellon, for Plaintiff-Appellant/Cross-Appellee,
    Roetzel & Andress, LPA, Laura M. Faust, Akron, Chad M. Sizemore and Tyler M. Jolley, Cincinnati, for Defendant-Appellee/Cross-Appellant.
    OPINION.
   Cunningham, Judge.

{¶ 1} In these consolidated appeals, the parties contest whether defendant-appellee and cross-appellant OHA Insurance Solutions, Inc., ("OHAIS") must provide indemnification under a professional-liability insurance policy it issued to defendant Terrance McCoy, a former medical doctor, for harm that he caused to his patient, plaintiff-appellant and cross-appellee Dolly Beattie, during McCoy and Beattie's tumultuous one-year sexual relationship.

{¶ 2} In the appeal numbered C-170197, Beattie challenges the trial court's entry resolving the parties' cross-motions for summary judgment in favor of OHAIS on her claim that under the terms of its professional-liability policy OHAIS had a duty to indemnify because McCoy had harmed Beattie "while performing [a] professional service." And in the appeal numbered C-170211, OHAIS has brought a cross-appeal challenging the trial court's denial of its motion to strike the affidavit of Beattie's expert witness.

{¶ 3} Because the trial court erred in denying OHAIS's motion to strike the challenged affidavit, we reverse its judgment in OHAIS's cross-appeal. Because we find no error in the trial court's entry granting summary judgment for OHAIS on the insurance-coverage issue, we affirm the trial court's judgment challenged in Beattie's appeal.

SEXUAL CONDUCT BY McCOY

{¶ 4} McCoy is a self-described "sex addict" who nonetheless practiced internal medicine from 1993 until October 2012. In 2003, the State Medical Board of Ohio suspended McCoy's license for six month because he had had an affair with a patient.

{¶ 5} McCoy had been Beattie's internist since 1996. He treated her for a variety of medical ailments. In October 2010, she informed McCoy that she was suffering from depression and asked him for help. McCoy referred Beattie to Dr. Janet Stedman, a clinical therapist, for treatment of depression and anxiety. Beattie's first appointment with Dr. Stedman was on October 21, 2010.

{¶ 6} On September 8, 2011, Beattie visited McCoy complaining of pain in her hands, and body aches and swelling. McCoy examined Beattie's back and shoulders. Beattie claims that McCoy then began to rub her shoulders and placed his hands on her breasts, rubbed his groin against her, and exposed himself. Beattie did not stop McCoy's advances and the two kissed.

{¶ 7} After this encounter the two began a tumultuous sexual relationship. Though both were married, they met for sex weekly. McCoy visited Beattie's house when her husband was out of town. Beattie rented motel rooms to have sex with McCoy. They had sex in McCoy's office after hours and on weekends. They exchanged lewd messages, photographs, and video files.

{¶ 8} During the year-long affair, Beattie and McCoy often fought. Beattie threatened to report McCoy's behavior to the state medical board and to McCoy's wife. But she continued her illicit relationship with him. McCoy stated that he had begun the affair to satisfy his sexual addiction, but remained in the affair because he feared being discovered.

{¶ 9} Eventually Beattie filed a complaint with the state medical board. But McCoy convinced her to withdraw her charges. The state medical board continued its own independent investigation, and McCoy was forced to surrender his medical license in 2012 with no opportunity for reinstatement. Beattie ultimately informed McCoy's wife and his employer about their affair.

THE DISPUTE OVER INSURANCE COVERAGE

{¶ 10} During the time of the affair, OHAIS had issued to its insured, McCoy, a "Professional Liability Insurance Policy for Healthcare Professionals." The policy provided, in pertinent part, that:

We will pay claims which the insured becomes legally obligated to pay because of professional services provided or which should have been provided. We will pay only if:
The claim involves an allegation of injury * * * because of professional services provided or which should have been provided or that result from an incident which causes bodily injury * * *.

{¶ 11} The policy defined "professional services" as "medical, surgical, dental, imaging, mental or other health care professional service or treatments * * *; [and the] provision of drugs, health care supplies or appliances."

{¶ 12} Beattie commenced this action in 2016, alleging, inter alia, that McCoy's sexual behavior constituted medical malpractice which had caused her great harm. In the eighth count of her complaint, Beattie also sought a declaration that under the terms of its professional-liability policy OHAIS had a duty to indemnify McCoy because he had damaged Beattie "while performing [a] professional service." OHAIS answered the complaint, and raised its counterclaim against Beattie seeking a declaration that it was not obligated to indemnify McCoy against the claims asserted by Beattie. McCoy requested that OHAIS defend and indemnify him. OHAIS defended McCoy under a strict reservation of rights, but declined any duty to indemnify him.

{¶ 13} During discovery, Beattie identified Stuart Bassman, Ed.D., a clinical psychologist, as her expert witness. Before Dr. Bassman's deposition, he produced reports in which he opined that Beattie had sustained aggravation of her post-traumatic stress disorder ("PTSD"), because of the affair with McCoy. Beattie already suffered from PTSD and other issues, including depression and anxiety, because of prior sexual violence inflicted on her in her youth. In Dr. Bassman's opinion, McCoy should have known that Beattie was vulnerable because of her history, and with that knowledge, he exploited and "revictimized" Beattie by having a sexual relationship with her.

{¶ 14} Based upon the opinions offered in Dr. Bassman's deposition testimony and the report made an exhibit to his testimony, OHAIS moved for summary judgment on its insurance-coverage counterclaim. Beattie also filed a summary-judgment motion on her insurance-coverage claim and opposed OHAIS's motion. Attached to Beattie's motion was an affidavit from Dr. Bassman in which he extensively discussed "transference phenomenon" and his opinion that McCoy failed to manage Beattie's transference properly.

{¶ 15} OHAIS moved to strike Dr. Bassman's affidavit claiming that the affidavit contained opinions that had not been previously disclosed and were inadmissible under Civ.R. 56 and Evid.R. 702 and 705. The trial court held a lengthy hearing on the matter, and on April 10, 2017, denied the motion. The trial court also journalized an entry granting OHAIS's motion for summary judgment on its insurance-coverage counterclaim, and denying Beattie's summary-judgment motion on her declaratory-judgment claim.

{¶ 16} In mid-April, the trial court ruled in favor of Beattie on her medical malpractice claims against McCoy and entered judgment in Beattie's favor in the amount of $867,500.

{¶ 17} Beattie and OHAIS filed timely notices of appeal or cross-appeal from those entries. In the appeal numbered C-170197, Beattie challenges the trial court's entry of summary judgment in favor of OHAIS on insurance coverage. And in the appeal numbered C-170211, OHAIS has brought a cross-appeal challenging the denial of its motion to strike Dr. Bassman's affidavit.

OHAIS's CROSS-APPEAL CHALLENGING DR. BASSMAN'S AFFIDAVIT

{¶ 18} Because Civ.R. 56(C) sets forth an exclusive list of evidentiary materials that a trial court may consider when ruling upon a summary-judgment motion, and because Civ.R. 56(E) confines a court to consider only evidence that would be admissible at trial, we first resolve OHAIS's cross-appeal challenging the admission of Dr. Bassman's affidavit under Civ.R. 56. In the sole assignment of error, in its cross-appeal numbered C-170211, OHAIS argues that the trial court erred when it denied its motion to strike Dr. Bassman's affidavit attached to and offered in support of Beattie's motion for summary judgment on her insurance-coverage claim against OHAIS.

{¶ 19} OHAIS argues that Dr. Bassman identified in his affidavit, for the first time, that Beattie exhibited "transference phenomenon" to support Beattie's contention, in her motion, that McCoy had failed to recognize her positive transference and thus had failed to provide a professional service for that mental condition that included refraining from sex. These failures, Dr. Bassman stated, caused Beattie serious harm and any physician would have taken steps to avoid that harm. OHAIS contends that since Dr. Bassman was not qualified to render these opinions and that he had not demonstrated the reliability of transference phenomenon as applied here, the trial court should have granted its motion to strike the affidavit. We agree.

{¶ 20} Dr. Bassman was deposed extensively in February and early March 2107. His deposition testimony was memorialized in over 250 pages of transcript. A nine-page written report of Dr. Bassman's evaluation of Beattie was attached as an exhibit to his deposition testimony. In his deposition and report, Dr. Bassman did not mention transference phenomenon. Rather he concluded that Beattie suffered from post-traumatic stress disorder. And he opined that Beattie may have engaged in a sexual relationship with McCoy, against her better interests, because of "revictimization." Dr. Bassman related that revicitimization "refers to the fact that * * * women who were physically or sexually abused as children are more likely to be abused as adults."

{¶ 21} Five days after the completion of Dr. Bassman's deposition, Beattie moved for summary judgment on her declaratory-judgment claim, and opposed OHAIS's summary-judgment motion, in part, on the basis of the expert opinions contained in Dr. Bassman's attached affidavit.

{¶ 22} In the affidavit, Dr. Bassman maintained that Beattie exhibited transference phenomenon: when a patient unconsciously projects on an authority figure, like a treating psychologist in a psychotherapeutic relationship, feelings and behaviors associated with significant persons in the patient's life. While OHAIS's own corporate representative had answered a number of questions regarding the transference phenomenon in her deposition conducted the day before Dr. Bassman's second and final deposition, Dr. Bassman had not referred to transference in his deposition or his report.

{¶ 23} In his affidavit, Dr. Bassman noted that Beattie had reported that she had suffered extensive early-life traumas and parental abuse. Dr. Bassman found that Beattie adored McCoy as a devoted and compassionate authority figure who would not exploit her. Thus Beattie "submitted to the authority of her trusted physician," and entered in to a sexual relationship with McCoy as a result of the transference phenomenon.

{¶ 24} Dr. Bassman further opined that "physicians should know about transference as part of their education and training." Finally, Dr. Bassman concluded "it appears that" McCoy, as her treating physician, should have been aware of Beattie's "predisposition toward positive transference" and his failure to refrain from sexual contact with Beattie and his failure to help her recognize the transference phenomenon caused Beattie serious harm, and any physician would have taken steps to avoid that harm.

{¶ 25} Under Civ.R. 56(E), an affidavit must be made on personal knowledge and must "set forth such facts as would be admissible in evidence." Further, the affidavit must "show affirmatively that the affiant is competent to testify to the matters stated in the affidavit." Thus the party offering a witness as an expert has the burden of establishing that the witness is qualified to competently give such testimony. See Tully v. Mahoning Exp. Co. , 161 Ohio St. 457, 119 N.E.2d 831 (1954), paragraph two of the syllabus; see also Wright v. Hamilton , 141 Ohio App.3d 296, 750 N.E.2d 1190 (12th Dist.2001). Here, Dr. Bassman's affidavit containing expert opinion must meet the rules governing the admissibility of those opinions contained in Evid.R. 702, 703, and 705. See Douglass v. Salem Community Hosp. , 153 Ohio App.3d 350, 2003-Ohio-4006, 794 N.E.2d 107, ¶ 21 (7th Dist.) ; see also Smith v. Cincinnati Gas & Elec. Co. , 75 Ohio App.3d 567, 600 N.E.2d 325 (1st Dist.1991). An expert's affidavit that does not meet these requirements is subject to a motion to strike. See Siegel v. LifeCenter Organ Donor Network , 2011-Ohio-6031, 969 N.E.2d 1271, ¶ 43 (1st Dist.) ; see also Wesley v. Walraven , 4th Dist. Washington No. 12CA18, 2013-Ohio-473, 2013 WL 544053, ¶ 21-24. We review a trial court's ruling on a motion to strike for an abuse of discretion. See Siegel at ¶ 43.

{¶ 26} In order to comply with Civ.R. 56(E) and Evid.R. 702 and 705, an expert affidavit must set forth the expert's credentials and the facts supporting the expert's opinion which would be admissible into evidence. See Douglass at ¶ 21. An expert's affidavit may not set forth conclusory statements without sufficient supporting facts. See id. at ¶ 28 ; see also Smith , 75 Ohio App.3d at 570, 600 N.E.2d 325.

{¶ 27} Under Evid.R. 702, a witness is qualified to testify as an expert if:

(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; [and]
(C) The witness' testimony is based on reliable scientific, technical, or other specialized information.

{¶ 28} And Evid.R. 705 requires an expert to disclose the facts or data underlying his opinion.

{¶ 29} Here, Dr. Bassman's affidavit does not meet these requirements. First, Dr. Bassman has not established that his opinion was based on "reliable scientific, technical, or other specialized information." See Evid.R. 702(C). Dr. Bassman did not cite to any medical or psychological authority demonstrating that transference phenomenon exists as Dr. Bassman described it in paragraph three of the affidavit, or that Beattie's submission to McCoy was to a reasonable degree of psychological certainty a result of McCoy's "mismanagement" of the transference phenomenon. Dr. Bassman did not identify the basis, either in his training or his experience, for his opinion regarding the reliability of transference phenomenon. Dr. Bassman did not relate his familiarity with transference phenomenon and its reliability in his deposition or the attached report.

{¶ 30} Next, Evid.R. 702(B) requires an expert to testify within the area of his or her expertise. See Metro. Life Ins. Co. v. Tomchik , 134 Ohio App.3d 765, 777, 732 N.E.2d 430 (7th Dist.1999). Here, Dr. Bassman offered an opinion that a physician, like McCoy, specializing in internal medicine should have recognized Beattie's positive transference.

{¶ 31} We note that although Dr. Bassman declared that his curriculum vitae was attached to the affidavit, it was not. Generally a court may strike affidavit paragraphs that refer to a document which was not properly attached. See Douglass , 153 Ohio App.3d 350, 2003-Ohio-4006, 794 N.E.2d 107, at ¶ 22. But Dr. Bassman's curriculum vitae was made an exhibit to his deposition testimony. That document provides that Bassman has a doctorate in Counselor Education, and that he is an experienced, licensed psychologist with a specialty in sexual-related psychological treatment. But the affidavit fails to disclose any specialized knowledge, skill, training, or treating experience regarding transference phenomenon or patients that suffer from it.

{¶ 32} Most importantly, neither his affidavit nor his curriculum vitae disclose whether Dr. Bassman had any experience with regard to what training physicians receive in the diagnosis and treatment of psychological conditions in general, or specifically of transference phenomenon. Thus, Dr. Bassman was not qualified to opine, as he did in paragraph four of the affidavit, that "[p]hysicians should know about transference as part of their training and education." See Schechter v. Ohio State Med. Bd. , 10th Dist. Franklin No. 04AP-1115, 2005-Ohio-4062, 2005 WL 1869733 (affirming the permanent revocation of a psychiatrist's license to practice medicine and noting expert testimony declaring that it can be very difficult to deal appropriately with eroticized transference, and that most psychiatrists never experience eroticized transference in the course of their practice).

{¶ 33} The impact of Dr. Bassman's lack of demonstrated expertise regarding a physician's understanding of transference phenomenon is compounded by the limited information upon which he actually relied in reaching his opinions. While Dr. Bassman acknowledged that "the available information that I have is based upon [Beattie's] self report," he nonetheless concluded that "it appears that as her 'treating physician' [McCoy] was well aware of the patient's vulnerable emotional state * * *." (Emphasis added.) Yet Dr. Bassman admitted in the affidavit that he had not "evaluated" McCoy. Nowhere in his affidavit does Dr. Bassman affirmatively disclose the facts he relied upon in concluding that McCoy was "well aware" of Beattie's condition as required by Evid.R. 705. See Smith , 75 Ohio App.3d at 570, 600 N.E.2d 325. Similarly, in paragraph six of the affidavit, Dr. Bassman concluded that "based upon the available information that I have, Dolly Beattie approached Dr. McCoy with a positive transference." Yet he did not disclose what that available information was as required by Evid.R. 705.

{¶ 34} Applying the requirements of Civ.R. 56(E) and Evid.R. 702 and 705 to Dr. Bassman's affidavit, we find the opinions contained in the affidavit were inadmissible. Dr. Bassman's affidavit failed to establish that transference phenomenon was scientifically or psychologically reliable, or that he was qualified to render an opinion on whether McCoy should have recognized Beattie's transference and thus failed to provide a professional service that a competent physician should have provided. Thus we hold that the denial of the motion was an abuse of discretion. See AAAA Ents., Inc. v. River Place Community Urban Redev. Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 35} OHAIS's assignment of error is sustained.

BEATTIE'S APPEAL CHALLENGING THE DENIAL OF INSURANCE COVERAGE

{¶ 36} In her single assignment of error, in the appeal numbered C-170197, Beattie argues that the trial court erred in granting summary judgment in favor of OHAIS on its counterclaim seeking a declaration that it has no obligation to indemnify McCoy under the professional-liability insurance policy against claims raised by Beattie, and in denying Beattie's own summary-judgment motion on insurance coverage.

{¶ 37} The gravamen of Beattie's argument is that failing to refrain from sex or failing to rebuke Beattie's sexual advances was a part of the professional services that McCoy should have rendered. Thus under the policy's terms, OHAIS was required to indemnify McCoy for his failure to provide those professional services.

{¶ 38} A court is not precluded from granting summary judgment merely because of the complexity or the volume of the factual record. See Gross v. Western-Southern Life Ins. Co. , 85 Ohio App.3d 662, 666-667, 621 N.E.2d 412 (1st Dist.1993) ; see also Southside River-Rail Terminal v. Crum & Forster Underwriters of Ohio , 157 Ohio App.3d 325, 2004-Ohio-2723, 811 N.E.2d 150, ¶ 8 (1st Dist.). That is particularly so where, as here, the parties have each moved for summary judgment.

{¶ 39} We have in the past questioned the wisdom of resolving matters seeking declaratory judgment by summary judgment. E.g., Cincinnati v. Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Emps., AFL-CIO , 93 Ohio App.3d 162, 164, 638 N.E.2d 94 (1st Dist.1994). Nonetheless, the parties' election to address the issues by cross-motions for summary judgment demonstrates that both sides believed that there was no genuine issue of material fact in dispute and that the court was free to render a decision on insurance coverage as a matter of law. See Costanzo v. Nationwide Mut. Ins. Co., 161 Ohio App.3d 759, 2005-Ohio-3170, 832 N.E.2d 71, ¶ 10 (1st Dist.) ; see also State ex rel. Scripps Media v. Hunter , 1st Dist. Hamilton No. C-130241, 2013-Ohio-5895, 2013 WL 6988396, ¶ 31.

{¶ 40} A motion for summary judgment shall be granted if the court, upon viewing the inferences to be drawn from the underlying facts set forth in the pleadings, depositions, answers to interrogatories, written admissions, and affidavits in a light most favorable to the party opposing the motion, determines (1) that no genuine issue of material fact remains to be litigated, (2) that the moving party is entitled to judgment as a matter of law, and (3) that the evidence demonstrates that reasonable minds can come to but one conclusion and that conclusion is adverse to the party opposing the motion. See Civ.R. 56(C) ; see also Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).

{¶ 41} The interpretation of clear, unambiguous contract terms is a question of law particularly appropriate for resolution by summary judgment. See Costanzo at ¶ 19. These issues raise only questions of law that we review de novo. See State Farm Fire & Cas. Co. v. Condon , 163 Ohio App.3d 584, 2005-Ohio-5208, 839 N.E.2d 464, ¶ 18 (1st Dist.) ; see also Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.

{¶ 42} When determining coverage, a court examines "the insurance contract as a whole and presume[s] that the intent of the parties is reflected in the language used in the policy." Safeco Ins. Co. v. Fed. Ins. Co. , 1st Dist. Hamilton No. C-070074, 2007-Ohio-7068, 2007 WL 4553690, ¶ 26, citing Westfield v. Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11. When the intent of the parties is evident from the clear and unambiguous language of the policy, a court must enforce the contract as written. See Southside River-Rail Terminal , 157 Ohio App.3d 325, 2004-Ohio-2723, 811 N.E.2d 150, at ¶ 11.

{¶ 43} The resolution of this matter does not rest on a determination of whether McCoy's abhorrent conduct violated the ethical norms of the medical profession or breached a physician's standard of care due to his patient. Sexual conduct with a patient may be a grave breach of both of those obligations. See, e.g., Bunce v. Parkside Lodge of Columbus , 73 Ohio App.3d 253, 254, 596 N.E.2d 1106 (10th Dist.1991). Here, the sole issue for our resolution is whether under the terms of OHAIS's professional-liability insurance policy, McCoy's conduct in failing to refrain from sex or failing to rebuke Beattie's sexual advances was a part of the professional services that McCoy should have rendered.

{¶ 44} Under the natural and commonly accepted meaning of the policy terms, a physician, like McCoy, does not provide a "professional service" by engaging in sexual conduct with a patient. Sexual conduct is not specifically identified as a professional service in the policy. It is so dissimilar from the professional services enumerated in the policy, that no construction of the policy language would support coverage for sexual conduct as a "professional service." McCoy stated that he did not have sex with Beattie to treat any medical or mental condition, rather he did so because of his own personal sex addiction.

{¶ 45} But the express policy language also provides coverage when an "insured becomes legally obligated to pay because of professional services * * * which should have been provided." Beattie maintains that refraining from sexual conduct with Beattie or rebuking her sexual advances was a part of the professional services that McCoy should have rendered. Beattie offered Dr. Bassman's transference opinion to establish that McCoy, as a treating physician, was required as part of his professional services to avoid sexual misconduct with a patient exhibiting positive transference.

{¶ 46} Even without resort to Dr. Bassman's inadmissible opinion, Beattie maintains, as she did at oral argument, that any physician, aware of his patient's transference or not, who fails to refrain from sex or fails to rebuke the sexual advances of a patient that he is treating for a mental condition has failed to provide a professional service that he should have rendered.

{¶ 47} In support of this argument, Beattie urges us to adopt the reasoning of St. Paul Fire & Marine Ins. Co. v. Love , 459 N.W.2d 698, 701-702 (Minn.1990), a transference case, in which the Minnesota Supreme Court held that sexual misconduct that is inextricably related to a therapeutic relationship between a psychologist and his patient, being treated for marital problems and childhood sexual abuse, could fall within the coverage of a therapist's professional-liability insurance policy. The sexual conduct in Love , while "aberrant and unacceptable," was "so related to the treatment contemplated" that it came within the scope of the insurance coverage for professional services provided or withheld.

{¶ 48} We note that no Ohio court has adopted the rationale of Love. And we need not do so today. Even under Love , Beattie cannot demonstrate as a matter of law that McCoy's sexual conduct was inextricably related to the professional services that he provided or withheld. Unlike the licensed therapist in Love , or the psychiatrist in Schechter v. Ohio State Med. Bd. , 10th Dist. Franklin No. 04AP-1115, 2005-Ohio-4062, 2005 WL 1869733, the psychiatric social worker in Chaney v. Dept. of Mental Health , 12th Dist. Clermont No. CA83-08-072, 1984 WL 4364, *2 (Mar. 29, 1984), or the alcoholism-and-drug-abuse counselor in Perkins v. Schneider , 128 Ohio App.3d 121, 122, 713 N.E.2d 1132 (9th Dist.1998), McCoy's therapeutic relationship with Beattie was a limited one.

{¶ 49} Since 1996, McCoy had been treating Beattie for a variety of minor medical ailments. When, in October 2010, Beattie informed McCoy that her depression was worsening and asked him for help, McCoy did not enter into an involved "therapeutic alliance" with her. Rather he referred Beattie to Dr. Janet Stedman, a clinical therapist, for treatment of depression and anxiety. Her first appointment with Dr. Stedman was on October 21, 2010, almost exactly one year before McCoy's sexual conduct began. While McCoy continued to prescribe medicine for these conditions, there is nothing in the record to indicate that McCoy engaged in the type of intimate psychological therapy contemplated in Love or in the Ohio cases cited above. McCoy's deposition testimony revealed that he was not aware of traumas in Beattie's childhood or young adult life. And Beattie, rather than being in thrall "to the authority of her trusted physician," threatened throughout the turbulent affair to report McCoy to the state medical board and to reveal their sexual relationship to his wife, and ultimately did so. Thus McCoy's sexual conduct was not inextricably related to the medical or mental professional treatment that Beattie received. Beattie has not established that McCoy's sexual conduct was a consequence of his treatment of her depression and anxiety, and thus his failure to avoid that conduct was a professional service which he should have provided.

{¶ 50} Since OHAIS was entitled to judgment as a matter of law on its claim that it was not obligated to indemnify Beattie for McCoy's failure to provide a professional service, the trial court did not err in granting summary judgment against Beattie. Beattie's assignment of error is overruled.

CONCLUSION

{¶ 51} Because the trial court erred in denying OHAIS's motion to strike Dr. Bassman's affidavit, we reverse its judgment on that motion challenged in OHAIS's cross-appeal numbered C-170211. In light of our resolution of that matter, and having conducted a de novo review of the evidentiary materials properly before the court, we find no error in the trial court's entry granting summary judgment for OHAIS on its insurance-coverage counterclaim. Thus we affirm the judgment in Beattie's appeal numbered C-170197.

Judgment accordingly.

Mock, PJ., and Zayas, J., concur.

      While OHAIS also claimed to appeal from the trial court's entry denying its motion to compel discovery, OHAIS has not argued that matter in its appellate brief. Matters not argued and supported by legal authority and citation to the record are abandoned. See App.R. 12(A)(1)(b) and 16(A).


source: Caselaw Access Project

author: WELBAUM, P.J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. William A. WHITE, Defendant-Appellant
    No. 2017-CA-28
    Court of Appeals of Ohio, Second District, Miami County.
    Rendered June 29, 2018
    PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Prosecuting Attorney, Miami County Prosecutor's Office, 201 West Main Street, Troy, Ohio 45373, Attorney for Plaintiff-Appellee
    WILLIAM A. WHITE, Inmate No. 734-850, Pickaway Correctional Institution, P.O. Box 209, Orient, Ohio 43146, Defendant-Appellant-Pro Se
   WELBAUM, P.J.

{¶ 1} Defendant-appellant, William A. White, appeals pro se from the judgment of the Miami County Court of Common Pleas denying his "Motion for the Return of Property," wherein White requested the return of property seized from his residence pursuant to a search warrant. For the reasons outlined below, the judgment of the trial court will be affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

Facts and Course of Proceedings

{¶ 2} On June 7, 2016, White was indicted for single counts of illegal manufacture of crack cocaine in violation of R.C. 2925.04(A) and possession of cocaine in violation of R.C. 2925.11(A). The indictment included forfeiture specifications for $1,487 in cash and a 2005 Chrysler Pacifica titled in White's name. The charges and specifications were filed after police officers from the City of Troy executed a search warrant at White's residence on April 8, 2016, during which time the officers found cocaine powder, crack cocaine, and cash. Various items of property, including White's Chrysler Pacifica, were seized as evidence during the search. Following the search, the police had White's vehicle towed to Jim's Towing and Recovery ("Jim's Towing") in Miami County where the vehicle was stored during the pendency of the criminal proceedings brought against White.

{¶ 3} The State never instituted an action for the forfeiture of White's seized property. The State also dismissed all the charges against White without prejudice on December 20, 2016. Following the dismissal, on January 5, 2017, White, with the assistance of counsel, filed a "Motion for Release of Property and Waiver of Storage and Tow Fees." In the motion, White explained that although the police had directed Jim's Towing to release White's vehicle to him, the tow yard refused to do so until the towing and storage fees were paid. White argued that since his criminal case was dismissed, he should not be responsible for the towing and storage fees, and he requested the trial court to order the release of his vehicle.

{¶ 4} Approximately one month later, White and the State filed a "Joint Notice of Stipulation of Facts for Release of Property Motion." In the notice, the parties stipulated to the following:

(1) a search warrant was executed at White's residence on April 8, 2016;
(2) a number of items were seized by the police, including White's Chrysler Pacifica;
(3) White is the title owner of the Chrysler Pacifica;
(4) White purchased the Chrysler Pacifica for $5,075 plus $367.58 in taxes and fees;
(5) the police had the Chrysler Pacifica towed to Jim's Towing in Miami County;
(6) the police placed a hold on the Chrysler Pacifica, which prohibited White from recovering the vehicle;
(7) the indictment filed against White was dismissed on December 20, 2016;
(8) the hold on White's vehicle was released following the dismissal of his case;
(9) when White attempted to retrieve his vehicle from the tow yard he was informed that he would have to pay Jim's Towing approximately $6,000;
(10) $6,000 exceeds the value of the Chrysler Pacifica;
(11) White filed a "Motion for Release of Property and Waiver of Storage and Tow Fees" on January 5, 2017; and
(12) the Kelly Blue Book fair market value/trade-in value of the Chrysler Pacifica is between $1,859 and $2,264.

{¶ 5} White thereafter filed a supplemental brief supporting his "Motion for Release of Property and Waiver of Storage and Tow Fees." In the supplemental brief, White again requested the trial court to order the release of his vehicle from Jim's Towing and for him not to be held responsible for the towing and storage fees owed. The State did not file a response in opposition to White's motion.

{¶ 6} After taking the matter under advisement, on February 15, 2017, the trial court issued a written decision denying White's motion. In denying the motion, the trial court found, based on the parties' stipulations, that White's vehicle was seized by the police as evidence in a criminal matter, which was dismissed, and was not seized or held under the court's authority. The trial court also found that the State had not sought forfeiture of the vehicle under R.C. Chapter 2981 and that the vehicle was not impounded pursuant to any chapter under R.C. Title 45. As a result, the trial court found it had no jurisdiction over the right of possession of the vehicle. Rather, the trial court explained that there were other civil remedies available for White to obtain possession of his vehicle against the claim of Jim's Towing.

{¶ 7} Instead of appealing from the trial court's decision, on August 23, 2017, White filed a pro se "Motion for the Return of Property." In that motion, White sought relief under R.C. Chapter 2981 and requested the trial court to issue an order for the police to return the property seized from his residence on April 8, 2016. White attached an affidavit to the motion listing all the property that he wanted returned, which included his Chrysler Pacifica, two Samsung cell phones, two trays, an iPad, a First Alarm monitor, $1,504 in cash, a Brinks safe, and two lap top computers. White's motion did not address the towing and storage fees for his vehicle nor did it request the trial court to waive the imposition of those fees. White simply argued that the aforementioned property should be returned to him since his criminal case was dismissed.

{¶ 8} On October 17, 2017, the trial court held a hearing on White's "Motion for the Return of Property." Following the hearing, on October 25, 2017, the trial court issued a written decision denying White's motion. In denying the motion, the trial court once again concluded that it did not have jurisdiction over the right of possession of the vehicle since no forfeiture action was ever filed by the State. With regards to the other items of property, the trial court held that although R.C. 2981.11(A)(1) requires lawfully seized property to be kept safely by police, the means of disposal provided in that statute (as described in R.C. 2981.12 and R.C. 2981.13 ) did not apply to White's property because the property was neither unclaimed nor forfeited property. The trial court found that it did not have jurisdiction to grant the release of the property because the City of Troy (as the legal entity overseeing the Troy Police Department) was not a party to the action and that R.C. Chapter 2981 did not provide the trial court with post-conviction jurisdiction to order the release of property or to join other parties.

{¶ 9} White now appeals from the trial court's judgment denying his pro se "Motion for the Return of Property," asserting one assignment of error for review.

Assignment of Error

{¶ 10} White's sole assignment of error is as follows:

THE [TRIAL] COURT ABUSED ITS DISCRETION WHEN IT MADE A RULING THAT WAS CONTRARY TO LAW.

{¶ 11} Under his assignment of error, White contends that the trial court's written decision issued on October 25, 2017, did not conform to the trial court's ruling provided at the October 17, 2017 hearing. Unlike the written decision, White claims the trial court, at the hearing, ordered all of the property he sought in his motion to be returned to him, excluding his vehicle, which the trial court found it lacked jurisdiction to release. In his reply brief, White also argues that because all the charges against him in the underlying criminal matter were dismissed and no forfeiture proceedings were initiated, all of his property, including his vehicle, should be returned to him. White further asks this court to order the State to pay for his vehicle's towing and storage fees.

{¶ 12} Given that White has not fulfilled his duty under App.R. 9(B) to provide a transcript of the October 17, 2017 hearing, we must presume the regularity of the trial court proceedings unless the limited record before us affirmatively demonstrates error. Banks v. Regan , 2d Dist. Montgomery No. 21929, 2008-Ohio-188, 2008 WL 186831, ¶ 2 ; Knapp v. Edwards Laboratories , 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). After a full and thorough review of the available record, we find nothing indicating that the ruling announced by the trial court at the October 17, 2017 hearing was different from the ruling set forth in the written decision of October 25, 2017. As a result, we will presume the regularity of the October 17, 2017 hearing. Therefore, White's claim that the trial court issued different rulings at the hearing and in the corresponding written decision is without merit.

{¶ 13} Also lacking merit is White's claim that the trial court erred in failing to order the return of his vehicle. We note that the portion of White's "Motion for the Return of Property" requesting the release of his vehicle is barred by res judicata because White previously requested such relief in a prior motion and then failed to appeal from the trial court's decision denying the prior motion. See State v. Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16 ("any issue that could have been raised on direct appeal and was not is res judicata and not subject to review in subsequent proceedings"). Accord State v. Woullard , 2d Dist. Montgomery No. 27216, 2017-Ohio-2614, 2017 WL 1592719, ¶ 12. Despite the application of res judicata, the trial court ruled on White's second request for the release of his vehicle and concluded, for a second time, that it did not have jurisdiction over the right of possession of the vehicle.

{¶ 14} Although it was unnecessary for the trial court to rule on the issue a second time, we ultimately agree with the trial court's conclusion. The joint stipulations filed by the parties established that White's vehicle was in the possession of Jim's Towing, a third-party tow yard. The stipulations further established that Jim's Towing would not release the vehicle to White until the towing and storage fees were paid. Although the trial court has jurisdiction over third-party claims to property in forfeiture proceedings, see R.C. 2981.03, no forfeiture proceeding was ever filed in this case.

{¶ 15} In a criminal proceeding, the trial court does not have authority to deprive a third party, such as Jim's Towing, of the possession of property in which it has asserted an interest, as Jim's Towing cannot be afforded an opportunity to assert its rights in a criminal proceeding to which it is not a party. State v. Estep , 4th Dist. Ross No. 94CA2007, 1995 WL 392878, *2-3 (June 26, 1995) ("if the automobile is being held by a third person or entity, such person or entity is not a party to the action below and the court would not have jurisdiction to issue [an order to release the automobile to appellant]"). See also State v. Labriola , 9th Dist. Summit No. 10861, 1983 WL 3973, *2 (Feb. 9, 1983), citing Wacksman v. Harrell , 174 Ohio St. 338, 342, 189 N.E.2d 146 (1963) (a criminal court cannot deprive non-party towing company of property interest, where defendant asked for return of seized property). White's remedy with respect to his vehicle must be in an appropriate civil proceeding. Labriola at *2. Accordingly, the trial court did not err in finding that it lacked jurisdiction to order Jim's Towing to return the vehicle to White.

{¶ 16} We now turn to the other items of property that White requests to have returned. According to White, the other items of property were seized by police during the April 8, 2016 search of his home and are currently in the possession of the police. Other than the affidavit attached to White's "Motion for the Return of Property," there is nothing in the record properly before this court indicating that the police have any of the items White requests to have returned to him. However, given that the trial court addressed the return of the property on the merits, in the interests of judicial economy, we will presume the items are indeed in the possession of the police.

{¶ 17} As previously noted, the trial court held that R.C. Chapter 2981 did not provide it with jurisdiction to order the police to return White's property to him. In reaching this conclusion, the trial court reviewed R.C. 2981.11(A), which provides that:

Any property that has been lost, abandoned, stolen, seized pursuant to a search warrant, or otherwise lawfully seized or forfeited and that is in the custody of a law enforcement agency shall be kept safely by the agency, pending the time it no longer is needed as evidence or for another lawful purpose, and shall be disposed of pursuant to sections 2981.12 and 2981.13 of the Revised Code.

{¶ 18} While R.C. 2981.11(A) sets forth the law enforcement agency's duty to safely keep seized property until it is no longer needed as evidence or for another lawful purpose, it does not provide any clarity on the issue of whether a trial court has authority in a dismissed criminal case to order a law enforcement agency to return seized property when forfeiture has not been pursued. We note that the methods of disposing the property in R.C. 2981.12 and R.C. 2981.13 apply to "unclaimed or forfeited property in the custody of a law enforcement agency" and "property ordered forfeited as contraband, proceeds, or an instrumentality." White's property is neither unclaimed nor forfeited; accordingly, we agree with the trial court's conclusion that the provisions in R.C. 2981.12 and R.C. 2981.13 do not apply to the case at bar.

{¶ 19} Under R.C. 2981.03(A)(4), "a person aggrieved by an alleged unlawful seizure of property may seek relief from the seizure by filing a motion in the appropriate court that shows the person's interest in the property, states why the seizure was unlawful, and requests the property's return." While we have held that R.C. 2981.03(A)(4) encompasses claims for the return of seized property even when the State has not pursued forfeiture, State v. Moreno , 2017-Ohio-479, 85 N.E.3d 238, ¶ 26 (2d Dist.), R.C. 2981.03(A)(4) still does not apply here because White does not allege that his property was unlawfully seized. Accordingly, R.C. 2981.03(A)(4) also does not clarify whether a trial court has authority in a dismissed criminal case to order a law enforcement agency to return seized property when forfeiture has not been pursued.

{¶ 20} We also point out that there is an issue as to whether White's "Motion for the Return of Property" was even properly before the trial court. There is a body of case law indicating that an action in replevin is the appropriate procedure for a defendant to reclaim possession of property seized by police after the defendant has been convicted or when the charges against the defendant have been dismissed. See State v. Young , 5th Dist. Richland No. CA-2810, 1991 WL 87203 (May 3, 1991) (holding that the trial court no longer had jurisdiction to hear defendant's motion for return of property after the defendant was convicted and after the time for appeal had lapsed, and that to reclaim possession of his property, defendant's "proper remedy to was to file an action in replevin, the same way a bailor seeking return of his property would sue a bailee"); State ex rel. Jividen v. Toledo Police Dept. , 112 Ohio App.3d 458, 459, 679 N.E.2d 34 (6th Dist.1996) (holding that the proper remedy for the return of property seized at the time of the defendant's arrest was not mandamus but a replevin action); State ex rel. Green v. Toledo Police Dept. , 6th Dist. Lucas No. L-99-1207, 1999 WL 1102687, *1 (Nov. 18, 1999) (holding that where property seized by police was never tied to any criminal activity and where criminal charges were dismissed against the property's owner, "the proper means for seeking return of that property is through an action in replevin").

{¶ 21} However, in State v. Harris , 10th Dist. Franklin No. 99AP-684, 2000 WL 249161 (Mar. 7, 2000), the Tenth District Court of Appeals concluded that replevin is not the exclusive method for seeking the return of seized property and held that a trial court had authority to rule on a motion for return of property that was filed in the defendant's dismissed criminal case. Id. at *2-3. Like the instant case, there is no indication that formal forfeiture proceedings were ever filed in Harris . The Tenth District in Harris explained that:

A civil action for replevin is one method to seek the return of property wrongfully withheld by the state or other public entity. See, e.g., Folden v. City of Columbus (Nov. 17, 1992), Franklin App. No. 92AP-926[ 1992 WL 344918], unreported; Brooks v. Dayton (1990), 70 Ohio App.3d 722, 591 N.E.2d 1352 ; Clinton v. Leis (1977), 56 Ohio App.2d 30, 381 N.E.2d 344 ; see, also, Weiler v. Department of Liquor Control (May 26, 1994), Franklin App. No. 93API09-1289[ 1994 WL 232248], unreported (conversion action appropriate when state department destroyed wrongfully withheld property). However, a separate civil action is not the exclusive method to obtain such relief.
For example, courts routinely address postconviction motions for the return of property previously seized. See, e.g., State v. Kennedy (1996), 114 Ohio App.3d 221, 683 N.E.2d 33 ; State v. Asmo (Mar. 29, 1988), Franklin App. No. 87AP-746[ 1988 WL 37057], unreported; see, also, State v. Jacobs (1940), 137 Ohio St. 363, 30 N.E.2d 432 (specifically holding that postconviction motion by defendant for the return of seized property was proper under predecessor statute to R.C. 2933.41 ). Courts have also entertained such motions filed in criminal cases even after the criminal charges have been dismissed. See, e.g., City of Akron v. Carlson and Ahlstrom (Mar. 11, 1987), Summit App. No. 12771[ 1987 WL 7932], unreported (motion for return of video game machines and money filed after gambling charges against defendants were dismissed); State v. Kassoff (Aug. 25, 1983), Cuyahoga App. No. 46107[ 1983 WL 4656], unreported (motion for return of video game machine filed after criminal complaint had been dismissed); see, also, State v. Blount (June 12, 1991), Summit App. No. 14898[ 1991 WL 108567], unreported (trial court entertained state's post-dismissal forfeiture petition and defendant's motion for return of property, both filed after criminal charges had been dismissed). In fact, particularly applicable here, one court has even held that the denial of a criminal defendant's post-dismissal motion for return of property because defendant failed to appear at the hearing on that motion collaterally estopped defendant's efforts to recover the seized property in a subsequently filed replevin action. See Johnson v. City of Cleveland (Jan. 14, 1988), Cuyahoga App. No. 53241[ 1988 WL 3749], unreported.
Based upon these authorities, we find that the trial court erred in denying appellant's motion for relief from judgment on the grounds that the underlying motion to return property was not properly before the court . Appellant's second assignment of error is well-taken.

(Emphasis added.) Harris , 10th Dist. Franklin No. 2000 WL 249161 at *2. Accord Hicks v. Barberton Police , 9th Dist. Summit No. 23976, 2008-Ohio-2958, 2008 WL 2439814, ¶ 4 ("[r]eplevin may provide a remedy when property has been seized by law enforcement officers and retained after the conclusion of criminal proceedings." (Emphasis added.) ) Contra State v. Hatfield , 10th Dist. Franklin No. 12AP-824, 2013-Ohio-1678, 2013 WL 1790199 (holding that the vehicle for seeking the return of letters seized from the defendant while in jail "is not the filing of a motion under a case number which is attached to a criminal case which is no longer active").

{¶ 22} This court, in State v. Bolton , 2017-Ohio-7263, 97 N.E.3d 37 (2d Dist.), indirectly reached the same conclusion as Harris . In Bolton , the trial court denied the defendant's motion for return of property, which was filed after he was convicted and after he served his sentence. Id. at ¶ 5. Like the instant case, the property at issue was seized from the defendant's residence pursuant to a search warrant and remained in the possession of the police. Id. at ¶ 3. Also like the instant case, the State failed to pursue either criminal or civil forfeiture of the property. Id. at ¶ 13. Instead of holding that the motion for return of property was not properly before the trial court, we reversed the judgment of the trial court and held that "where the statutory requirements for forfeiture have not been met, we have no choice but to reverse the decision of the trial court and remand for further proceedings." Id. at ¶ 17. Although not explicit, this court's holding in Bolton indirectly indicates that the trial court had authority to rule on the motion for return of property. Otherwise, this court would have affirmed the trial court's denial of the motion on the ground that it lacked jurisdiction to rule on the motion. Stare decisis requires this court to adhere to this court's precedent in Bolton , which supports the notion that White's "Motion for the Return of Property" was a viable means to request the return of his property and that the motion was properly before the trial court.

{¶ 23} Although the trial court was correct in that there was nothing in R.C. Chapter 2981 providing it with authority to order the police to return the property in question, there are nevertheless multiple cases indicating that such an order is appropriate under circumstances similar to this case. See State v. Haymond , 5th Dist. Stark No. 2009-CA-00078, 2009-Ohio-6817, 2009 WL 4986322 (ordering the return of seized property upon reversing the trial court's decision overruling defendant's post-conviction motion for return of property on grounds that forfeiture was not properly pursued by the State); State v. Asmo , 10th Dist. Franklin Nos. 87AP-746, 87AP-747, 1988 WL 37057 (Mar. 29, 1988) (affirming the trial court's order for the return of defendant's seized property after finding that the trial court had jurisdiction over the matter); State v. Burrell , 71 Ohio App.3d 507, 594 N.E.2d 1059 (6th Dist.1991) (holding the trial court had jurisdiction to order the return of seized property and that defendant was entitled to have his property returned upon the dismissal of the charges against him). Accordingly, we conclude that, under the specific circumstances of this case, the trial court had authority to order the police to return the requested property to White.

{¶ 24} As for his vehicle's towing and storage fees, White did not raise the issue of who should pay those fees in his "Motion for the Return of Property." Instead, White raised the towing and storage fees issue in a prior motion that was denied by the trial court on February 15, 2017, a decision that White did not appeal.

{¶ 25} "When an appeal is taken from a final judgment, only the judgment appealed from is brought before the appellate court, and upon review, the appellate court will affirm, modify or reverse the judgment appealed from." In re J.L. , 2d Dist. Montgomery No. 26938, 2016-Ohio-5649, 2016 WL 4591379, ¶ 19, citing Troyer v. Goodville Mut. Cas. Co. , 5th Dist. Holmes No. CA-467, 1993 WL 107979, *1 (Apr. 1, 1993), citing In re Kurtzhalz , 141 Ohio St. 432, 48 N.E.2d 657 (1943). Therefore, "an appellate court lacks jurisdiction to review a judgment or order that is not designated in the appellant's notice of appeal." (Citation omitted.) State v. Howard , 2d Dist. Montgomery No. 21678, 2007-Ohio-3582, 2007 WL 2019662, ¶ 10.

{¶ 26} In this case, White appealed from the trial court's October 25, 2017 decision denying his "Motion for the Return of Property." Because White failed to raise the towing and storage fees issue in his "Motion for the Return of Property," the trial court did not rule on that issue when denying his motion. Accordingly, we do not have jurisdiction to review that issue in this appeal, as we only have jurisdiction to review the judgment White appealed from.

{¶ 27} The towing and storage fees issue is also barred by the doctrine of res judicata since White previously sought the same relief in a prior motion that was denied by the trial court, a decision that White could have, but did not appeal. See State v. Carter , 9th Dist. Summit No. 21792, 2004-Ohio-1590, 2004 WL 628178, ¶ 8 ; State v. Goins , 12th Dist. Butler No. CA2004-02-054, 2005-Ohio-828, 2005 WL 459137, ¶ 7.

{¶ 28} For the foregoing reasons, White's sole assignment of error is overruled in part and sustained in part. We sustain White's assignment of error to the extent that the trial court erred in holding that it did not have jurisdiction to order the police to return the property requested in White's affidavit (other than the vehicle). White's assignment of error is overruled in all other respects.

Conclusion

{¶ 29} The judgment of the trial court denying White's "Motion for the Return of Property" is affirmed in part and reversed in part. Specifically, the trial court's judgment that it did not have jurisdiction to order the police to return the property requested in White's affidavit (other than the vehicle) is reversed and that matter is remanded to the trial court for further proceedings consistent with this opinion. The trial court's judgment is affirmed in all other respects.

DONOVAN, J. and FROELICH, J., concur.