author: Per Curiam.

text:
    STATE of Ohio, Plaintiff-Appellee, v. David FOSTER, Defendant-Appellant.
    NO. C-160337
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: December 29, 2017
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Bryan R. Perkins and Michael K. Allen, Cincinnati, for Defendant-Appellant.
    OPINION.
   Per Curiam.

{¶ 1} Defendant-appellant David Foster appeals from the Hamilton County Common Pleas Court's judgment overruling his "Motion to Vacate, Set-Aside, and Resentence Due to Void Judgment." We affirm the court's judgment as modified, but remand for correction of the sentencing entry.

{¶ 2} Foster was convicted in 2005 of conspiracy, drug possession, and drug trafficking. In his direct appeal, we vacated his sentences and remanded for resentencing in light of the Ohio Supreme Court's decision in State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. State v. Foster , 1st Dist. Hamilton No. C-050378, 2006-Ohio-1567, 2006 WL 825268, appeal not accepted , 110 Ohio St.3d 1439, 2006-Ohio-3862, 852 N.E.2d 188. Then, in his appeal from his 2006 resentencing, we vacated his sentences and remanded for merger consistent with R.C. 2941.25. State v. Foster , 1st Dist. Hamilton No. C-060720 (June 27, 2007), aff'd , 118 Ohio St.3d 265, 2008-Ohio-2542, 888 N.E.2d 411. The trial court resentenced Foster on September 4, 2008, merging the possession and conspiracy charges into the trafficking charge and imposing consecutive prison terms of ten years for trafficking and seven years for the major-drug-offender specification accompanying that charge. We affirmed that conviction on appeal. State v. Foster , 1st Dist. Hamilton No. C-080929 (Aug. 8, 2009), appeal not accepted , 123 Ohio St.3d 1511, 2009-Ohio-6210, 917 N.E.2d 812.

{¶ 3} Foster unsuccessfully challenged his trafficking conviction in postconviction motions filed with the common pleas court in 2006, 2007, 2013, and 2015. See State v. Foster , 1st Dist. Hamilton No. C-130369 (Feb. 26, 2014), appeals not accepted , 139 Ohio St.3d 1419, 2014-Ohio-2487, 10 N.E.3d 738 ; State v. Foster , 1st Dist. Hamilton No. C-070518 (June 11, 2008), appeal not accepted , 119 Ohio St.3d 1488, 2008-Ohio-5273, 894 N.E.2d 1245 ; State v. Foster , 1st Dist. Hamilton Nos. C-060065 and C-060121 (Jan. 10, 2007). In this appeal from the overruling of his 2015 "Motion to Vacate, Set-Aside, and Resentence Due to Void Judgment," he advances two assignments of error.

Early-Release Exclusions

{¶ 4} In his first assignment of error, Foster contends that the common pleas court erred in failing to afford him the relief sought in his motion. The assignment of error is well taken in part.

{¶ 5} In his motion, Foster sought correction of that part of the 2008 judgment of conviction that stated that he was "not eligible for intensive prison program, transitional control, judicial release, or any other early release program and is to serve this sentence in its entirety." He argued that those portions of his sentence were void, because the trial court was not authorized by law to effectively "require him to serve * * * as if it were a mandatory sentence" the seven-year prison term imposed for the major-drug-offender specification, because the court, prematurely and without findings, disapproved transitional control, and because the court acted without statutory authority when it effectively excluded him from eligibility for any present or future early-release program, such as the earned-days-of-credit program under R.C. 2967.193, by expressly declaring him "not eligible" for early release and by ordering him "to serve his prison sentence in its entirety."

{¶ 6} Judgment of conviction not correctable under any statute or criminal rule. Foster did not specify in his postconviction motion a statute or rule under which the relief sought might have been afforded, leaving the common pleas court free to "recast" the motion "into whatever category necessary to identify and establish the criteria by which the motion should be judged." State v. Schlee , 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus. But the motion was not reviewable under the standards provided by R.C. 2953.21 et seq., governing the proceedings upon a petition for postconviction relief, when the motion alleged statutory, rather than constitutional, violations. See R.C. 2953.21(A)(1). The motion was not reviewable under Crim.R. 32.1, as a motion to withdraw a guilty plea, or under Crim.R. 33, as a motion for a new trial, when Foster had been convicted of trafficking following a jury trial, and the motion sought resentencing rather than a new trial. Nor was the motion reviewable under R.C. Chapter 2731 as a petition for a writ of mandamus, under R.C. Chapter 2721 as a declaratory judgment action, or under R.C. Chapter 2725 as a petition for a writ of habeas corpus, when the motion did not satisfy those statutes' procedural requirements. See R.C. 2731.04, 2721.12(A), and 2725.04. And Crim.R. 57(B) did not require the common pleas court to review pursuant to the procedures provided under Civ.R. 60(B) the challenges advanced in the motion, because Foster's judgment of conviction had been reviewable under the procedures provided for a direct appeal. See State v. Smith , 1st Dist. Hamilton, 2016-Ohio-3521, 68 N.E.3d 114, ¶ 19. Accordingly, the postconviction statutes and rules did not confer upon the common pleas court jurisdiction to entertain the challenges advanced in Foster's motion.

{¶ 7} Jurisdiction to correct void portions of the judgment of conviction. But a court always has jurisdiction to correct a void judgment. See State ex rel. Cruzado v. Zaleski , 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. And we conclude that the common pleas court had jurisdiction to correct as void that portion of Foster's judgment of conviction that excluded him from "any * * * early release program" and ordered him "to serve his prison sentence in its entirety."

{¶ 8} In State v. Livingston , 2014-Ohio-1637, 9 N.E.3d 1117 (1st Dist.), the trial court had included the following language in the judgment of conviction entered upon Livingston's guilty plea to voluntary manslaughter: "Pursuant to a plea agreement between the parties, the defendant herein is not eligible for risk reduction, intensive prison programs, earned days of credit, transitional control, judicial release, or any other early release program and is to serve this sentence in its entirety." Id. at ¶ 2. In his direct appeal, Livingston argued that the trial court had lacked the authority to limit his eligibility to earn credit against his prison term under R.C. 2967.193 for participating in approved prison programs. Livingston at ¶ 3. Because the earned-credit statute identified eligible offenders and conferred upon the department of rehabilitation and correction, not the trial court, the authority to determine and award the credit, we concluded that that portion of Livingston's sentence declaring him ineligible for earned days of credit was not authorized by law and was thus subject to review on direct appeal. Id. at ¶ 4-7, citing R.C. 2953.08(D)(1). And we vacated and remanded for correction that portion of his sentence. Id. at ¶ 10.

{¶ 9} Our holding in Livingston was based on principles, recently reaffirmed by the Ohio Supreme Court in State v. Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, that the Ohio General Assembly is vested with the power to define criminal offenses and prescribe punishment, and that the only sentence that a trial court may impose is that authorized by statute. Id. at ¶ 20 and 22, citing Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964), and State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 21-22. See Livingston at ¶ 6. The court in Williams also reaffirmed principles pertinent to our review here of Foster's collateral attacks on his sentence, that a sentence that is not authorized by statute is void and thus reviewable at any time, but a sentence imposed by a trial court with jurisdiction and the statutory authority to act is not rendered void by an error in imposing the sentence and may only be challenged on direct appeal. Williams at ¶ 20-23, citing State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984), Fischer at ¶ 6-7, 21-23 and 30, and State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 28.

{¶ 10} In Livingston , we noted for purposes of contrast that while the General Assembly had provided no role for the judiciary in determining eligibility for earned credit under R.C. 2967.193, it had expressly conferred upon trial courts the authority under R.C. 5120.032(B)(1)(a) to determine eligibility for placement in an intensive prison program and under R.C. 2967.26 to disapprove a transfer into a transitional control program. Livingston at ¶ 7-9. For those same reasons, in the reopened appeal in State v. Brown , 1st Dist. Hamilton No. C-130120, 2016-Ohio-310, 2016 WL 524350, we sustained an assignment of error challenging the trial court's authority to include in Brown's judgment of conviction an earned-credit restriction, but overruled assignments of error challenging restrictions on his eligibility for transitional control and judicial release. Brown at ¶ 13-19. We further note that the version of R.C. 2925.03(C)(6)(g) effective in 2008, when Foster was resentenced, conferred upon the trial court the discretion to impose "an additional mandatory prison term" for Foster's major-drug-offender specification. Because the trial court was authorized by statute to impose upon Foster the seven-year prison term for the major-drug-offender specification and to restrict his eligibility for the intensive prison program, transitional control, and judicial release, those portions of his sentence were not void, and the common pleas court had no jurisdiction to entertain the collateral challenges to them presented in his 2016 motion.

{¶ 11} But the trial court had no statutory authority to declare Foster "not eligible for * * * any other early release program" or to order that he "serve [his] sentence in its entirety." Those parts of his sentence were, therefore, void, and the common pleas court had jurisdiction to review and correct them.

{¶ 12} Accordingly, we sustain in part the first assignment of error.

Merger

{¶ 13} In his second assignment of error, Foster asserts that the 2008 judgment of conviction entered on remand from our 2007 decision in Foster , 1st Dist. Hamilton No. C-060720, is void, because the trial court failed to "clearly indicat[e] which counts were merged as allied offenses of similar import, on which count [Foster] is serving a sentence, and that [he] only has a single conviction." We have no jurisdiction to entertain this challenge in this appeal from the overruling of Foster's 2015 motion, because he did not present this challenge in that motion. See State v. Gipson , 1st Dist. Hamilton Nos. C-960867 and C-960881, 1997 WL 598397 (Sept. 26, 1997).

{¶ 14} Nor was that portion of the 2008 judgment demonstrably void. The judgment plainly shows that the trial court, pursuant to our order on remand, merged the possession and conspiracy charges into the trafficking charge and sentenced Foster for trafficking only, along with that offense's major-drug-offender specification. We said as much in our 2009 decision in Foster's direct appeal, affirming the 2008 judgment of conviction. See Foster , 1st Dist. Hamilton No. C-080929.

{¶ 15} This court does not have, nor did the common pleas court have, jurisdiction to entertain Foster's merger challenge to the judgment of conviction. Accordingly, we overrule the second assignment of error.

Affirmed as Modified, but Remanded

{¶ 16} Because Foster's sentence was not correctable under any criminal rule or statutory procedure, his 2015 "Motion to Vacate, Set-Aside, and Resentence Due to Void Judgment" was subject to dismissal. Accordingly, upon the authority of App.R. 12(A)(1)(a), we modify the judgment appealed from to reflect the dismissal of the motion. And we affirm the judgment as modified.

{¶ 17} But the common pleas court had jurisdiction to correct those unauthorized portions of his sentence declaring that he was "not eligible for * * * any other early release program" and ordering that he "serve [his] sentence in its entirety." We, therefore, remand this cause for correction of the offending portions of the sentencing entry, in accordance with the law and this opinion.

Judgment accordingly.

Cunningham, P.J., Myers and Miller, JJ.


source: Caselaw Access Project

author: SINGER, J.

license: Public Domain

text:
    BAYVIEW LOAN SERVICING, LLC, Appellee v. Dane M. VASKO, et al., Appellant
    No. WD-17-029
    Court of Appeals of Ohio, Sixth District, Wood County.
    Decided: January 5, 2018
    Phillip Barragate Cleveland, and Ashlyn Heider, Norwood, for appellees.
    Troy L. Moore, Toledo, for appellant.
    DECISION AND JUDGMENT
   SINGER, J.

{¶ 1} This case is before the court on the appeal of appellant, Ballenger & Moore Co., L.P.A., from the March 22, 2017, April 14, 2017 and April 27, 2017 judgments of the Wood County Court of Common Pleas. For the reasons that follow, we affirm the trial court's judgments.

{¶ 2} Appellant sets forth the following assignments of error:

First Assignment of Error: The trial court committed reversible error when it found, as a matter of law as between competing lienholders, that the "effective/priority date" of the modification of a mortgage lien pursuant to Ohio Revised Code § 5301.231 relates back to the same "effective/ priority date" as the original mortgage lien pursuant to Ohio Revised Code § 5301.23.
Second Assignment of Error: The mortgage assignments attached to Plaintiff Bank of America, N.A.'s April 13, 2017 Motion to Substitute party Plaintiff excluded its October 2, 2014 (as recorded) Loan Modification Agreement on the subject property and, therefore, the trial court's April 14, 2017 Order Substituting Plaintiff should be vacated.
Third Assignment of Error: The trial court's April 27, 2017 Final Judgment Entry for Foreclosure exceeded the relief sought by the April 25, 2017 Motion of Substitute Party for Default Judgment and failed to reference, mention, or include (without limitation) Appellant Ballenger & Moore Co., L.P.A.'s October 19, 2012 (as recorded) mortgage on the subject property and Plaintiff Bank of America, N.A.'s October 2, 2014 (as recorded) Loan Modification Agreement on the subject property and, therefore, should be vacated.

Facts

{¶ 3} On February 25, 2008, Dane Vasko executed a promissory note ("the note") in the amount of $157,391.00 in favor of Realty Mortgage Corporation ("Realty") to finance the purchase of property in Millbury, Ohio ("the property"). The loan's interest rate was 5.875 percent and the maturity date was March 1, 2038. The note was secured with a mortgage signed by Vasko. The mortgage was filed on March 4, 2008, with the Wood County Recorder. In addition, an undated allonge was attached to the note, which contained the indorsement "Pay to the Order of" BAC Home Loans Servicing, L.P., fka, Countrywide Home Loans Servicing, L.P. ("BAC"), and was signed by Realty's vice president.

{¶ 4} On June 14, 2010, a complaint in foreclosure was filed by BAC against Vasko and others in Wood County Court of Common Pleas, being case No. 2010CV0565. The case was dismissed without prejudice in May 2011.

{¶ 5} On March 14, 2012, Bank of America, N.A., Successor by Merger to BAC ("BOA"), filed a complaint in foreclosure against Vasko and others in Wood County Court of Common Pleas, being case No. 2012CV0208. In July 2013, summary judgment was granted to BOA. In December 2014, a joint motion to vacate judgment was filed and an order was entered by the court dismissing the complaint without prejudice.

{¶ 6} In August 2012, Vasko executed a Revolving Promissory Note ("revolving note") in the amount of $180,000 in favor of appellant. An Open-End Mortgage on the property was given by Vasko to appellant to secure the revolving note. On October 19, 2012, this mortgage was recorded.

{¶ 7} On September 1, 2014, BOA and Vasko entered into a Loan Modification Agreement ("the Modification") which referenced the note and the mortgage previously recorded on March 4, 2008. The principal amount of the Modification was $141,923.11, the interest rate was 4.625 percent, the new maturity date was August 1, 2044, and the monthly mortgage payments were lowered from $995.63 to $815.92. The Modification was recorded on October 2, 2014.

{¶ 8} In April 2016, BOA filed a complaint for money judgment and foreclosure against Vasko, appellant and others in Wood County Court of Common Pleas, being case No. 2016CV0215. Appellant filed a counterclaim against BOA and sought a declaration that appellant has the first valid lien on the property.

{¶ 9} In January 2017, BOA filed a motion for summary judgment on appellant's counterclaim. Appellant filed a cross-motion for summary judgment. On March 22, 2017, the court granted summary judgment to BOA and found the recording of the Modification did not affect the priority of the original mortgage. In support of its finding, the court relied on Community Action Commt. of Pike Cty., Inc. v. Maynard , 4th Dist. Pike No. 02CA695, 2003-Ohio-4312, 2003 WL 21949715. Appellant appealed; the appeal was dismissed as the judgment was not a final appealable order.

{¶ 10} On April 13, 2017, BOA filed a motion to substitute party plaintiff requesting that Bayview Loan Servicing, LLC ("Bayview") be substituted for BOA. In the motion, BOA represented the mortgage loan was transferred to Bayview, and Bayview is now the holder of the note and mortgage. The trial court granted the motion on April 14, 2017.

{¶ 11} On April 25, 2017, Bayview filed a motion for default judgment against Vasko and his unknown spouse, if any.

{¶ 12} On April 27, 2017, the trial court issued a Final Judgment Entry for Foreclosure which encompassed all matters before the court. The court made numerous finding including: Vasko and his unknown spouse, if any, were in default; the United States of America may have a right, title, interest or claim upon the property; the Treasurer of Wood County, Ohio, was due taxes and assessments on the property; there was due to Bayview on the note $136,341.62 plus interest, and there may be due to Bayview any monies advanced for real estate taxes, insurance and property protection; to secure payment of the note, Vasko executed a mortgage, recorded on March 4, 2008; there was no just reason for delay; and, the property shall be foreclosed and sold and the proceeds distributed first to the Wood County Clerk of Courts, then the Treasurer of Wood County, then Bayview, and any balance to the clerk pending further court order.

{¶ 13} Appellant appealed.

First Assignment of Error

{¶ 14} Appellant contends the trial court erred when it held the "effective/priority date" of the Modification relates back to the same "effective/ priority date" as the original mortgage lien. In support of its position, appellant cites to Panzica Constr. Co. v. Bridgeview Crossing, L.L.C. , 2015-Ohio-3478, 39 N.E.3d 529 (8th Dist.).

{¶ 15} Bayview counters the trial court properly granted summary judgment, as Ohio's law is first in time, first in right. Bayview contends its mortgage was filed four years before appellant's mortgage. Bayview asserts the Modification does not affect its mortgage priority and appellant's junior mortgage position was not prejudiced by the Modification. In support, Bayview cites to Community Action Commt. of Pike Cty., Inc. v. Maynard , 4th Dist. Pike No. 02CA695, 2003-Ohio-4312, 2003 WL 21949715.

{¶ 16} We review a trial court's summary judgment decision on a de novo basis. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, we undertake our own independent examination of the record and make our own determination of whether the moving party is entitled to summary judgment. Dupler v. Mansfield Journal , 64 Ohio St.2d 116, 119-120, 413 N.E.2d 1187 (1980).

{¶ 17} R.C. 5301.231 states in relevant part:

(A) All amendments or supplements of mortgages, or modifications or extensions of mortgages or of the debt secured by mortgages, that have been executed in the manner provided in section 5301.01 of the Revised Code shall be recorded in the office of the county recorder of the county in which the mortgaged premises are situated and shall take effect at the time they are delivered to the recorder for record.

{¶ 18} R.C. 5301.01(A) provides in pertinent part:

A deed, mortgage, land contract as referred to in division (A)(21) of section 317.08 of the Revised Code * * * shall be signed by the grantor, mortgagor, vendor, or lessor in the case of a deed, mortgage, land contract, or lease * * *. The signing shall be acknowledged by the grantor, mortgagor, vendor, or lessor, or by the trustee, before a judge or clerk of a court of record in this state, or a county auditor, county engineer, notary public, or mayor, who shall certify the acknowledgement and subscribe the official's name to the certificate of the acknowledgement.

{¶ 19} R.C. 317.08(A)(21) provides:

The county recorder shall record all instruments in one general record series to be known as the "official records." The county recorder shall record in the official records all of the following instruments that are presented for recording, upon payment of the fees prescribed by law:
Options to purchase real estate, including supplements, modifications, and amendments of the options, but no option of that nature shall be recorded if it does not state a specific day and year of expiration of its validity[.]

{¶ 20} R.C. 5301.23 reads in relevant part:

(A) All properly executed mortgages shall be recorded in the office of the county recorder of the county in which the mortgaged premises are situated and shall take effect at the time they are delivered to the recorder for record. If two or more mortgages pertaining to the same premises are presented for record on the same day, they shall take effect in the order of their presentation. The first mortgage presented shall be the first recorded, and the first mortgage recorded shall have preference.

{¶ 21} In Community Action Commt. of Pike Cty., Inc. v. Maynard , 4th Dist. Pike No. 02CA695, 2003-Ohio-4312, ¶ 11, 2003 WL 21949715, the court observed the original mortgage secured advances up to $ 9,500.00, and the modification of the promissory note altered the original note by granting an extension of the repayment period and reducing the monthly payments.

The court further observed the modification of the note did not provide additional funds nor did it raise the interest rate established in the original note. Id.

{¶ 22} In its analysis, the court rejected the argument that the modification invalidated the original mortgage. Id. at ¶ 10. The court relied on the case of Riegel v. Belt , 119 Ohio St. 369, 164 N.E. 347 (1928), paragraph three of the syllabus, where the Supreme Court of Ohio held:

"The purpose of a mortgage is to secure the payment of a debt. A note described in the condition of a mortgage is only evidence of the debt. No change in the form of the evidence, or the mode or time of payment, not amounting to actual payment of the debt, or an express release, will operate to discharge the mortgage." Id.

The court also cited a treatise which provided "[a]n extension that merely alters the time period for the payment of the obligation generally has no effect on the priority position of the extended mortgage as against intervening junior encumbrances. * * * 4 Powell on Real Property (1997), 37-219, Section 37.31." Id. at ¶ 10. The court then concluded the modification of the note did not invalidate the mortgage, nor did the modification affect the priority of the mortgage. Id. The court found the mortgage had the first and best lien on the property. Id. at ¶ 11.

{¶ 23} Panzica Constr. Co. v. Bridgeview Crossing, L.L.C. , 2015-Ohio-3478, 39 N.E.3d 529, ¶ 9, concerned a lien priority dispute between mechanic's lien holders and a bank with respect to a commercial shopping mall project. The bank had entered into a construction loan agreement with the project property owner and had judgment liens on the subject property. Id. The bank and project property owner also entered into several mortgage modifications because the owner purchased additional property for the project. Id. at ¶ 5. The bank asserted its mortgage had priority over the mechanic's liens. Id. at ¶ 9. The trial court found the mechanic's lien had priority over the bank's mortgage because the modifications added significant property and did not include a construction mortgage covenant. Id. at ¶ 14. On appeal, the bank claimed the trial court erred, inter alia, because its mortgage lien was superior in priority as it arose from a construction mortgage and an open-end mortgage, and the modifications were contemplated by the terms of the original mortgage and related back to the date of the mortgage. Id. at ¶ 15. The appellate court noted R.C. 5301.231 does not define the phrase "shall take effect." Id. at ¶ 48. The court then found "based on our review of similar statutes," the phrase means a modification is invalid as against other creditors until recorded, and the modification's priority is determined as of the date of recording, not the date the original mortgage was recorded. Id.

{¶ 24} Our review of these cases causes us to conclude that we should follow the rationale and holding in Community Action , where the court supported its conclusion with a detailed analysis. In contrast, the court in Panzica did not undertake such an in-depth analysis in reaching its conclusion that the modifications take effect when recorded. Moreover, the fact situation in Community Action is aligned with the facts of this case, as both cases involved a modification of a note where there were no additional funds, the interest rate was not increased, the repayment period was extended and the monthly payments were reduced. Whereas in Panzica , the fact pattern involved a construction loan, several modifications and mechanic's liens.

{¶ 25} We therefore find the recording of the Modification did not affect the priority of the original mortgage. Thus, Bayview's lien has priority over appellant's lien. Accordingly, the trial court did not error when it found, between competing lienholders, the "effective/priority date" of the Modification relates back to the same "effective/ priority date" as the original mortgage. It follows that appellant's first assignment of error is not well-taken.

Second Assignment of Error

{¶ 26} Appellant contends BOA failed to attach the Modification to its motion to substitute party plaintiff, filed on April 13, 2017, so the substitution order should be vacated. Appellant also advances the argument that BOA did not enter into a mortgage assignment directly with Bayview. Instead, appellant submits BOA assigned to HUD BOA's interest in the February 25, 2008 mortgage, and not the Modification. Then, HUD assigned its interest in the February 25, 2008 mortgage, and not the Modification, to Bayview. As such, appellant asserts, "it is not a stretch to characterize" these mortgage assignments "as an effort by BOA to 'launder' its Loan Modification Agreement * * * out of the 'chain-of-title' of the mortgage assigned to * * * Bayview by HUD, not * * *BOA." Based on this, appellant maintains Bayview does not have a right, title and interest in the Modification, upon which the foreclosure action is based. Appellant submits "[s]uch failure to assign Bayview the right, title, and interest in the operative modified mortgage * * * directly impacts * * * the efficacy of the April 27, 2017 Final Judgment * * *."

{¶ 27} Bayview counters the substitution of a party is not a substantive issue and substitution was not required, as the action could have continued in BOA's name. Bayview observes appellant does not dispute that BOA transferred its interest in the note to Bayview, and the transfer of a note acts as an equitable assignment of the mortgage. Thus, Bayview contends the trial court did not abuse it discretion by granting the substitution when there is no dispute that the note was transferred.

{¶ 28} Civ.R. 25(C) provides that a party to whom an interest has been transferred may be substituted in an action in place of the party that previously held the interest. See Boedeker v. Rogers , 140 Ohio App.3d 11, 19-20, 746 N.E.2d 625 (8th Dist.2000). The substitution of a party operates as if the action had been commenced in the successor party's name. Id. ; Civ.R. 17(A). A trial court's decision to allow a substitution of parties is reviewed for an abuse of discretion. Ahlrichs v. Tri-Tex Corp. , 41 Ohio App.3d 207, 210, 534 N.E.2d 1231 (1st Dist.1987). Thus, we will not reverse the trial court's judgment unless it is arbitrary, unconscionable or unreasonable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 29} In order to establish an interest in a note or mortgage, the party can show an assignment of either the note or the mortgage. Fed. Home Loan Mtge. Corp. v. Koch , 11th Dist. Geauga No. 2012-G-3084, 2013-Ohio-4423, ¶ 24, 2013 WL 5532836. One who is not a party to, or a third-party beneficiary of, the assignment of a mortgage, lacks standing to challenge the validity of a mortgage assignment. Bank of Am., N.A. v. Hizer , 6th Dist. Lucas No. L-13-1035, 2013-Ohio-4621, ¶ 22, 2013 WL 5728342. Whether standing exists is a matter of law which we review de novo. Cuyahoga Cty. Bd. of Commrs. v. State , 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 23 ; Bank of Am., N.A. v. Merlo , 11th Dist. Trumbull No. 2012-T-0103, 2013-Ohio-5266, ¶ 9, 2013 WL 6228276.

{¶ 30} Here, appellant challenges both the trial court's order substituting Bayview as a plaintiff as well as the assignment of the mortgage from BOA to Bayview. With respect to the mortgage assignment, appellant was not a party to the mortgage assignment, and has not claimed the status as a third-party beneficiary to the assigned mortgage. As such, appellant does not have standing to challenge the assignment of the mortgage. As to the court's order substituting Bayview as a plaintiff, a review of the record shows the trial court allowed Bayview, as the holder of the note and mortgage, to be substituted for BOA upon its finding that good cause had been shown. We conclude the trial court's decision to grant the motion to substitute party was not arbitrary, unconscionable or unreasonable, and therefore, the trial court did not abuse its discretion. Accordingly, appellant's second assignment of error is not well-taken.

Third Assignment of Error

{¶ 31} Appellant contends the trial court's April 27, 2017 Final Judgment Entry of Foreclosure exceeded the relief sought by Bayview in its April 25, 2017 motion for default judgment and far exceeded the scope of Civ.R. 55. In addition, appellant argues the court's judgment failed to reference or include appellant's mortgage and the Modification and, therefore, should be vacated.

{¶ 32} We review a trial court judgment granting a motion for default using an abuse of discretion standard. Tikaradze v. Kenwood Garden Apts. , 6th Dist. Lucas No. L-11-1217, 2012-Ohio-3735, ¶ 6, 2012 WL 3548204.

{¶ 33} Civ.R. 55(C) provides in relevant part that "a judgment by default is subject to the limitations of Rule 54(C)." In turn, Civ.R. 54(C) states in pertinent part that "[a] judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment."

{¶ 34} Here, in BOA's complaint for money judgment and foreclosure against Vasko, BOA alleged Vasko defaulted under the terms of the note and Modification. BOA sought enforcement of the mortgage as its conditions had been broken, and BOA has the right to foreclose on the property. BOA named defendants, United States of America, appellant and Treasurer of Wood County, Ohio, as parties who may claim an interest in the property.

{¶ 35} A review of the record shows the trial court, in granting the motion for default, awarded Bayview the relief its predecessor sought in the complaint. In its judgment, the trial court set forth "Vasko [was] in default of Answer or other pleading and thereby confesses the allegations of the Complaint to be true." The court further stated "the liens of any parties that have filed an answer asserting a valid and subsisting lien are hereby transferred to proceeds." The court then ordered the distribution of the proceeds to certain parties. We therefore conclude the trial court did not abuse its discretion in rendering its April 27, 2017 judgment. Accordingly, appellant's third assignment of error is not well-taken.

{¶ 36} The judgments of the Wood County Court of Common Pleas are affirmed. Appellant is ordered to pay the costs of this appeal, pursuant to App.R. 24, and the clerk is ordered to serve all parties with notice of this decision.

Judgment affirmed.

Mark L. Pietrykowski, J.

James D. Jensen, J.

CONCUR.


author: FROELICH, J.

text:
    Kimberly J. NICOLL, et al., Plaintiff-Appellant v. CENTERVILLE CITY SCHOOLS, et al., Defendant-Appellee
    No. 27637
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on January 5, 2018
    THOMAS J. MANNING, Atty. Reg. No. 0059759, P.O. Box 751484, Dayton, Ohio 45475, Attorney for Plaintiff-Appellant.
    RAYMOND H. DECKER, Jr., Atty. Reg. No. 0069208, 600 Vine Street, Suite 412, Cincinnati, Ohio 45202, Attorney for Defendant-Appellee.
   FROELICH, J.

{¶ 1} Kimberly Nicoll appeals from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment to Centerville City Schools on her negligence claim. For the following reasons, the trial court's judgment will be affirmed.

I. Factual and Procedural History

{¶ 2} Nicoll's deposition testimony established the following facts.

{¶ 3} On March 18, 2015, Nicoll took her two daughters, ages 7 and 9, to Centerville High School for Cheer Madness, a three-day event for elementary school students involved in cheerleading. The event is held annually in the high school gymnasium. Nicoll and her children had attended Cheer Madness the year before, and Nicoll testified that she had been to the gym "at least three times." (Nicoll Depo. at 39.) Nicoll and her daughters arrived at Centerville High School at approximately 6:00 p.m. Nicoll testified that the weather was sunny but cool. She wore pants, a sweater, and hiking shoes.

{¶ 4} Upon arriving, Nicoll parked her van in a space at the front of the parking lot, with the front bumper of her vehicle near a curb and sidewalk. To the left of her parked van was an empty accessible parking space. Nicoll exited her van and opened the rear driver's side door for her daughters to get out. She grabbed her daughters' hands, and "headed into the gym with about a hundred other parents and kids that were walking in at the same time." (Id. at 42.)

{¶ 5} Nicoll described the circumstances of her fall, stating:

As I walked up the curb, [my older daughter] stepped on the curb first, I stepped up second, and [my younger daughter] was behind me. I went to take my following step. When I took my following step, my right leg didn't move. It was just-I can't explain it. It just didn't move with me, and I fell forward.

(Id. at 44.) Nicoll stated that she assumed that she had stepped up with her right foot, she took a second step with her left foot, and then fell when she could not move her right foot, which was "stuck." (Id. at 46.) After the fall, Nicoll looked back at her ankle and noticed that the pavement was "cracked and broken apart." (Id. at 46.) Nicoll was initially diagnosed with a broken right ankle, but she has had continuing medical issues related to her ankle.

{¶ 6} On April 1, 2016, Nicoll filed a negligence claim against Centerville City Schools ("CCS") in the common pleas court. Nicoll's husband, Timothy, brought a loss of consortium claim against CCS. Nicoll's complaint also named the Ohio Tort Recovery Unit as a party-defendant, noting that the Ohio Department of Medicaid may have a subrogation claim. CCS and the Ohio Department of Medicaid filed answers, and the parties engaged in discovery, including the taking of Nicoll's deposition.

{¶ 7} On February 8, 2017, CCS moved for summary judgment on Nicoll's negligence claim. CCS acknowledged, for purposes of its motion, that it did not have sovereign immunity for the claim, pursuant to R.C. 2744.02(B). It claimed, however, that the hazard was "open and obvious," negating any duty to warn to Nicoll. Nicoll opposed the motion, claiming that whether the hazard was an open and obvious danger was a matter for the jury and that attendant circumstances-the need to focus on her children and the large crowd-diverted her attention from the curb.

{¶ 8} On May 31, 2017, the trial court granted CCS's motion for summary judgment. The trial court concluded that the condition of the curb and sidewalk where Nicoll fell was an open and obvious hazard, and that no attendant circumstances existed. The trial court certified its decision as immediately appealable, pursuant to Civ.R. 54(B).

{¶ 9} Nicoll appeals from the trial court's judgment.

II. Summary Judgment Standard

{¶ 10} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds, after construing the evidence most strongly in favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc. , 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the initial burden of affirmatively demonstrating that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler , 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

{¶ 11} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the party's pleadings. Dresher at 293, 662 N.E.2d 264 ; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a genuine issue of material fact for trial. Id. " '[A] non-movant's own self-serving assertions, whether made in an affidavit, deposition or interrogatory responses, cannot defeat a well-supported summary judgment when not corroborated by any outside evidence.' " Schlaegel v. Howell , 2015-Ohio-4296, 42 N.E.3d 771, ¶ 23 (2d Dist.), quoting White v. Sears, Roebuck & Co. , 10th Dist. Franklin No. 10AP-294, 2011-Ohio-204, 2011 WL 285824, ¶ 9. Throughout, the evidence must be construed in favor of the nonmoving party. Id.

{¶ 12} We review the trial court's ruling on a motion for summary judgment de novo. Schroeder v. Henness , 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, 2013 WL 3356564, ¶ 42. De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence, without deference to the trial court, to determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond , 2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, 2015 WL 6110247, ¶ 8, citing Brewer v. Cleveland City Schools Bd. of Edn. , 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997).

III. Negligence Claim for Business Invitee

{¶ 13} In order to prevail on a negligence claim, "one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom." Strother v. Hutchinson , 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981) ; Long v. Speedway, L.L.C. , 2d Dist. Montgomery No. 26851, 2016-Ohio-3358, 2016 WL 3219642, ¶ 7. The status of a person who enters the land of another defines the scope of the legal duty owed to that person. Gladon v. Greater Cleveland Reg. Transit Auth. , 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996).

{¶ 14} A business invitee "is one who enters another's land by invitation for a purpose that is beneficial to the owner." Id. With respect to business invitees, an owner's duty is to keep the premises in reasonably safe condition and warn of dangers that are known to the owner. Hill v. Mullins , 88 N.E.3d 575, 2017-Ohio-1302, ¶ 14. Liability only attaches when an owner has "superior knowledge of the particular danger which caused the injury," as an "invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate." Uhl v. Thomas , 12th Dist. Butler No. CA2008-06-131, 2009-Ohio-196, 2009 WL 119844, ¶ 13, citing LaCourse v. Fleitz , 28 Ohio St.3d 209, 210, 503 N.E.2d 159 (1986). It is undisputed that Nicoll was a business invitee.

{¶ 15} However, "if a danger is open and obvious, a property owner owes no duty of care to individuals lawfully on the premises." Armstrong v. Best Buy Co., Inc. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 14. To be open and obvious, a hazard must not be concealed and must be discoverable by ordinary inspection. Larrick v. J.B.T., Ltd. , 2d Dist. Montgomery No. 21692, 2007-Ohio-1509, 2007 WL 949494, ¶ 11, citing Parsons v. Lawson Co. , 57 Ohio App.3d 49, 50-51, 566 N.E.2d 698 (5th Dist.1989). The relevant issue is not whether an individual observes the condition, but whether the condition is capable of being observed. Id. , citing Lydic v. Lowe's Cos., Inc. , 10th Dist. Franklin No. 01AP-1432, 2002-Ohio-5001, 2002 WL 31111820, ¶ 10.

{¶ 16} "Attendant circumstances" may affect the applicability of the open and obvious doctrine. Attendant circumstances have not been and probably cannot be precisely defined, but the term has been held to include any distraction that would come to the attention of a person in the same circumstances and reduce the degree of care an ordinary person would exercise at the time. Speedway , 2d Dist. Montgomery No. 26851, 2016-Ohio-3358, 2016 WL 3219642, at ¶ 10. "Both circumstances contributing to and those reducing the risk of the defect must be considered. The totality of the circumstances of each case must be examined to determine if, as a whole, they create a substantial defect." Stockhauser v. Archdiocese of Cincinnati , 97 Ohio App.3d 29, 33, 646 N.E.2d 198 (2d Dist.1994), citing France v. Parliament Park Townhomes , 2d Dist. Montgomery No. 14264, 1994 WL 151658 (Apr. 27, 1994).

{¶ 17} For attendant circumstances to negate the application of the open and obvious doctrine, they must not only be present, but must create "a greater than normal, and hence substantial, risk of injury." Id. , citing Turner v. Burndale Gardens Co. , 2d Dist. Montgomery No. 12807, 1991 WL 270662 (Dec. 18, 1991). The attendant circumstances must, taken together, divert the attention of the person, significantly enhance the danger of the defect, and contribute to the injury. Id. But attendant circumstances do not include regularly encountered, ordinary, or common circumstances. Meyer v. Dayton , 2016-Ohio-8080, 74 N.E.3d 921, ¶ 19 (2d Dist.), citing Colville v. Meijer Stores Ltd. Partnership , 2d Dist. Miami No. 2011-CA-011, 2012-Ohio-2413, 2012 WL 1964959, ¶ 30. Also, "[a]ttendant circumstances do not include the individual's activity at the time of the fall unless the individual's attention was diverted by an unusual circumstance of the property owner's making." Id. , citing McConnell v. Margello , 10th Dist. Franklin No. 06AP-1235, 2007-Ohio-4860, 2007 WL 2729429, ¶ 17.

{¶ 18} In this case, Nicoll was injured when she stepped from the parking lot asphalt onto the sidewalk in front of her vehicle and the adjacent parking spaces. A photograph of the curb/sidewalk where she fell was attached to her deposition (Defendant's Exhibit 3); the photograph reflected a substantial crack in the curb, which continued across the sidewalk square, perpendicular to the parking lot.

{¶ 19} At the time of her fall, it was sunny and clear. Nicoll was aware that the curb was there, having parked her vehicle along the same curb where she fell; the portion of the curb at issue was located next to the driver's side of her vehicle. When asked if the curb was obstructed by her vehicle's bumper or anything, Nicole responded, "No, it was not obstructed because I remember coming out of the car and walking up the side of the car and stepping." (Nicoll Depo. at 54.) Nicoll indicated that nothing else was obstructing the curb as she walked toward it, and she knew to step up when she reached it.

{¶ 20} Nicoll contends that the condition of the curb/sidewalk was not open and obvious, noting that she was focused on her children and that she was "not, as a matter of law, required to look constantly downward." App. Brief at 7-8, quoting Texler v. D.O. Summers Cleaners & Shirt Laundry Co. , 81 Ohio St.3d 677, 680-681, 693 N.E.2d 271 (1998) ("This court has held that '[a] pedestrian using a public sidewalk is under a duty to use care reasonably proportioned to the danger likely to be encountered but is not, as a matter of law, required to look constantly downward * * *.' "), quoting Grossnickle v. Germantown , 3 Ohio St.2d 96, 209 N.E.2d 442 (1965), paragraph two of the syllabus.

{¶ 21} The question in this summary judgment decision is not whether Nicoll was herself negligent and contributed to her fall, and neither the trial court's decision nor this opinion suggests that she was. Rather, upon review of Nicoll's deposition testimony and the attached Defendant's Exhibit 3, we find no genuine issue of material fact as to whether the curb where she stepped was open and obvious. The evidentiary materials demonstrate that the curb area was not hidden or concealed, and the condition of the curb and sidewalk was readily discoverable upon ordinary inspection. Although Nicoll was not required to be constantly looking downward while she walked, the evidence presented reflects that a reasonable person would have been able to discover the hazard posed by the curb and sidewalk. Accord Fletcher v. Wal-Mart Stores, Inc. , 9th Dist. Lorain No. 16CA10938, 2017-Ohio-1215, 2017 WL 1236291.

{¶ 22} Nicoll further claims that attendant circumstances, specifically her need to watch her children and the presence of a large crowd, diverted her attention from the condition of the curb and sidewalk. Although the record reflects that a large crowd attended Cheer Madness and that many parents and children were making their way to the Centerville High School gymnasium at the same time, there is nothing to suggest that the crowded environment at the school created a greater than normal risk of injury. Nicoll's injury occurred as she stepped up the curb beside her van, holding her children's hands. There was no evidence that a large group of people (or any person) was walking the same path, obstructing her view of the curb and sidewalk, or that they were engaged in specific conduct that focused her attention away from where she was walking. And assuming that her children's behavior could constitute an attendant circumstance, there was no evidence that her children were doing anything other than walking with her toward the school. In addition, Nicoll had previously been to Cheer Madness and to the Centerville High School gymnasium; she knew where to go and what to expect in terms of attendance at the event.

{¶ 23} In its brief, CCS further argues that summary judgment was appropriate, because the hazardous condition of the sidewalk was a "minor/trivial defect," which was not actionable. CCS states that defects are minor if they are less than two inches in height. The record contains no specific measurements of the width, depth, and/or length of the defect in the curb/sidewalk. And, upon review of the Defendant's Exhibit 3, it is unclear whether the defect was "minor." Regardless, in light of our conclusions that the defect was open and obvious and that no attendant circumstances existed, CCS's argument concerning minor/trivial defects is moot.

{¶ 24} In summary, the trial court did not err in concluding, as a matter of law, that the condition of curb/sidewalk was open and obvious and that the open and obvious doctrine was not negated by attendant circumstances. The trial court thus properly granted summary judgment to CCS.

IV. Conclusion

{¶ 25} The trial court's judgment will be affirmed.

HALL, P.J. and TUCKER, J., concur.


author: Miller, Judge. Zayas, P.J., concurring in part and dissenting in part.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Adam BOWERS, Defendant-Appellant.
    NO. C-160756
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: January 5, 2018
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    The Farrish Law Firm and Michaela M. Stagnaro, Cincinnati, for Defendant-Appellant.
    OPINION.
   Miller, Judge.

{¶ 1} We are presented with two questions. The first requires us to interpret R.C. 2971.03, in conjunction with R.C. 2907.02(B) to determine which sentencing options were available for the trial court's consideration. The second question presents a constitutional issue of whether judicial fact-finding that creates a middle sentencing option violates Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), or Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As to the constitutional issue, because neither the sentencing floor nor ceiling is raised, we hold that it does not. However, we reverse the sentence because the trial court was unaware of the shortest available sentencing option, and remand for resentencing among the three available sentencing options the court may impose: 15 years to life, 25 years to life, or life without parole.

Procedural Posture and Facts

{¶ 2} This is Adam Bowers's second appeal. Following a jury trial, Bowers was convicted of raping a child, in violation of R.C. 2907.02(A)(1)(b), with the accompanying specification that the child was under ten. He was also convicted of gross sexual imposition. In his first appeal, we held that the trial court had applied the wrong sentencing scheme when sentencing Bowers for rape. State v. Bowers , 1st Dist. Hamilton No. C-150024, 2016-Ohio-904, 2016 WL 901119, ¶ 41-42 (" Bowers I "). We therefore reversed his sentence, remanded, and instructed the trial court to sentence Bowers in accordance with R.C. 2907.02(B). Id. at ¶ 42-43. We affirmed the convictions in all other respects.

{¶ 3} On remand, the trial court concluded that it had two sentencing options-25 years to life or life without parole. The 25-years-to-life sentence was available only upon a finding that Bowers had purposely compelled his victim to submit by force or threat of force. See R.C. 2971.03(B)(1)(c). Based on the evidence adduced at trial, but not expressly found by the jury, the trial court imposed a 25-years-to-life sentence.

Analysis

{¶ 4} In his sole assignment of error, Bowers contends that his sentence is contrary to law because the trial court, and not the jury, determined facts necessary to impose the sentence-i.e., that Bowers had purposefully compelled his victim to submit by force or threat of force. Our standard of review is set forth in R.C. 2953.08(G)(2). We will not modify or vacate Bowers's sentence unless we clearly and convincingly find that it is contrary to law. See R.C. 2953.08(G)(2) ; State v. White , 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).

{¶ 5} Bowers claims that, absent the trial court's impermissible finding, his sentence should have been 15 years to life. We agree with Bowers that 15 years to life should have been an available sentence. See R.C. 2971.03(B)(1)(b). However, we also agree with the state that 25 years to life was an available sentence. See R.C. 2971.03(B)(1)(c).

{¶ 6} Statutory Construction. Bowers was convicted of rape of a minor under the age of 13, violating R.C. 2907.02(A)(1)(b). Bowers was also convicted of the accompanying specification that the minor was under ten. Because of the specification, the trial court had the option under R.C. 2907.02(B) of sentencing Bowers to life without parole. Division (B) refers the court to R.C. 2971.03 for lesser sentencing options.

{¶ 7} We previously held that because Bowers was not convicted of a sexually violent predator specification, it was improper to sentence him under R.C. 2971.03(A). Bowers I , 1st Dist. Hamilton No. C-150024, 2016-Ohio-904, 2016 WL 901119, at ¶ 42. Thus, we turn to R.C. 2971.03(B)(1) for the sentencing options in addition to life without parole.

{¶ 8} In pertinent part, R.C. 2971.03(B)(1) provides,

[I]f a person is convicted of or pleads guilty to a violation of division (A)(1)(b) of section 2907.02 of the Revised Code committed on or after January 2, 2007, if division (A) of this section does not apply regarding the person, and if the court does not impose a sentence of life without parole when authorized pursuant to division (B) of section 2907.02 of the Revised Code, the court shall impose upon the person an indefinite prison term consisting of one of the following:
(a) Except as otherwise required in division (B)(1)(b) or (c) of this section, a minimum term of ten years and a maximum term of life imprisonment.
(b) If the victim was less than ten years of age, a minimum term of fifteen years and a maximum of life imprisonment.
(c) If the offender purposely compels the victim to submit by force or threat of force, or if the offender previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of section 2907.02 of the Revised Code * * * or if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, a minimum term of twenty-five years and a maximum of life imprisonment.

{¶ 9} This statute affords three potential alternative sentences to life without parole. First, ten years to life is the default sentencing option. R.C. 2971.03(B)(1)(a). Second, 15 years to life is an available sentence where the victim was less than ten years old. R.C. 2971.03(B)(1)(b). Finally, a sentence of 25 years to life is an option upon a finding that the rape occurred through force or threat of force, the offender previously was convicted of raping a child, or the offender caused serious physical harm to the victim. R.C. 2971.03(B)(1)(c).

{¶ 10} In this case, 15 years to life was available because Bowers's victim was less than ten years old-a fact determined by the jury. See R.C. 2971.03(B)(1)(b). The 15-years-to-life option became the statutory minimum because ten years to life is not available where either sentence in division (B)(1)(b) or (c) is available. R.C. 2971.03(B)(1)(a). Thus, the permissible sentencing floor was 15 years to life, and the ceiling was life without parole.

{¶ 11} As painstakingly detailed in Bowers I , there was ample evidence that Bowers compelled his victim to submit by force. Bowers I , 1st Dist. Hamilton No. C-150024, 2016-Ohio-904, 2016 WL 901119, at ¶ 4-6, 27. Accordingly, 25 years to life was also an available option under the statutory sentencing scheme. R.C. 2971.03(B)(1)(c).

{¶ 12} While subsection (B)(1)(a) explicitly states that a ten-year minimum term is not an option if either 15- or 25-year minimum sentences are available, nothing in the language of the statute precludes a 15-year minimum term where a 25-year minimum term is also available. See State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9 (holding that when construing a statute, the court first examines its plain language and applies the statute as written when the meaning is clear and unambiguous). Moreover, the introductory clause of the sentencing provision states that the trial court shall impose "one of the following"-not the longest sentence, affording the trial court discretion. See R.C. 2971.03(B)(1).

{¶ 13} The dissent reads into this statute a nonexistent requirement that the trial court must impose the greatest of the available options. While the plain language of the statute does not require this, even any arguable ambiguity concerning sentencing options would require an interpretation that both the 15- and 25-year options were available. Pursuant to the rule of lenity, ambiguity in a sentencing statute cannot be interpreted so as to increase a minimum penalty. See State v. Elmore , 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 38 ("The rule of lenity is a principle of statutory construction that provides that a court will not interpret a criminal statute so as to increase the penalty it imposes on a defendant if the intended scope of the statute is ambiguous."). Thus, the availability of the 25-years-to-life option does not automatically remove the 15-years-to-life option.

{¶ 14} Because the trial court was unaware that 15 years to life was an available option, we reverse Bower's sentence and remand for resentencing. However, this does not fully address the assignment of error because Bowers also argues that the trial court is constitutionally prohibited from making a factual finding to make the 25-years-to-life option available, and that the only options that should be available to the trial court on remand are 15 years to life or life without parole.

{¶ 15} The Statute does not Violate Alleyne or Apprendi. We now consider whether a judge can constitutionally make a factual finding to support the imposition of the middle sentencing option of 25-years-to-life, as occurred below. Specifically, whether sentencing Bowers under R.C. 2971.03(B)(1)(c) without a jury finding of force violates the Sixth Amendment's prohibition against judicial fact-finding in sentencing as set forth in Alleyne , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314, and Apprendi , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435.

{¶ 16} The Sixth Amendment to, and the Due Process Clause of, the United States Constitution guarantee a defendant's right to have a jury determine whether the state has proven each element of a crime beyond a reasonable doubt. Apprendi at 476-477, 120 S.Ct. 2348. This protection is extended to facts that expose a defendant to a sentencing range greater than would be otherwise legally prescribed absent the additional fact. Id. at 490, 120 S.Ct. 2348. Hence, judicial fact-finding that informs sentencing violates the Sixth Amendment only where the fact alters the mandatory minimum or available maximum sentence. Alleyne at 2162-2163 ("The essential point is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime."); Apprendi at 490, 120 S.Ct. 2348, quoting Jones v. United States , 526 U.S. 227, 252-253, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), (Stevens, J. concurring.) (" 'It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.' "); see State v. Willan , 144 Ohio St.3d 94, 2015-Ohio-1475, 41 N.E.3d 366, ¶ 13-15 (explaining Alleyne and Apprendi ); State v. Mavrakis , 9th Dist. Summit No. 27457, 2015-Ohio-4902, 2015 WL 7572381, ¶ 38-39.

{¶ 17} In this case, the judicial finding of "force" under R.C. 2971.03(B)(1)(c) altered neither the mandatory minimum or available maximum sentence. Instead, it allowed the trial court a middle option of 25 years to life. The fact of "force" therefore did not have to be submitted to the jury and proven beyond a reasonable doubt.

{¶ 18} The dissent's reliance upon State v. Louis , 2016-Ohio-7596, 73 N.E.3d 917 (4th Dist.), and State v. Setty , 12th Dist. Clermont Nos. CA2013-06-049 and CA2013-06-050, 2014-Ohio-2340, 2014 WL 2526073, is inapropos. Both addressed judicial findings of fact that increased the available maximum sentence by making life without parole an available sentence. Significant to our analysis is that life without parole was an available sentence without any additional findings of fact. Accordingly, a trial court would be free to consider evidence of force to impose a life without parole sentence. See R.C. 2929.12(B) (in imposing sentence, a court shall consider "relevant factors" to determine whether an offender's conduct is more serious than conduct normally constituting the offense).See also Alleyne at 2163 ("Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial fact finding, does not violate the Sixth Amendment.").

{¶ 19} It would be problematic to conclude that even though a judicial fact-finding of "force" sub silentio is permissible to impose a maximum sentence, an express judicial fact-finding of "force" could not be used to make a lesser sentence available. To hold as the dissent suggests might subject a defendant to the maximum sentence by default where a trial judge decides the statutory minimum isn't sufficient punishment. And had the trial court agreed with the dissent that the middle option wasn't available and imposed life without parole, Bowers would likely be arguing that the middle option should have been available. Situational arguments do not make good law.

Conclusion

{¶ 20} While Bowers's sentence was not constitutionally infirm, we are compelled to reverse his sentence and remand for resentencing because the trial court erroneously believed 15 years to life was not an available sentence. It therefore erred in applying R.C. 2971.03(B)(1). We cannot say that the trial court would not have sentenced Bowers to 15 years to life had the court recognized that option was available. We therefore sustain Bowers's assignment of error, reverse his sentence, and remand for resentencing on the rape conviction based on the three available options.

Judgment reversed and cause remanded.

Deters, J., concurs.

Zayas, P.J., concurs in part, dissents in part.

Zayas, P.J., concurring in part and dissenting in part.

{¶ 21} I concur that the sentence must be vacated and the cause remanded to the trial court for a new sentencing hearing. However, I would reverse the trial court's decision for different reasons than the majority. Unlike the majority, I conclude that the plain language of the statute prohibits a sentence of 25 years to life for the rape of a child under the age of ten. Furthermore, the Sixth Amendment prohibits the trial court from making a factual finding of force to increase the minimum sentence from 15 years to 25 years. Accordingly, I would vacate the sentence and remand the matter to the trial court to resentence Bowers in accordance with R.C. 2907.02(B) and 2971.03(B)(1)(b).

Factual and Procedural Background

{¶ 22} Bowers was charged with and convicted by a jury of raping a child in violation of R.C. 2907.02(A)(1)(b), with the additional specification that the child was under the age of ten pursuant to R.C. 2971.03(B)(1)(b). See Bowers I , 1st Dist. Hamilton No. C-150024, 2016-Ohio-904, at ¶ 38, 2016 WL 901119. Bowers was not charged with or found guilty of purposefully compelling the victim to submit by force or threat of force.

{¶ 23} He was initially sentenced to an indefinite term of 25 years to life, under R.C. 2971.03(A), which only applies when a sexually-violent-predator specification was included in the indictment. Id. at ¶39-41. Because Bowers was not charged with or convicted of a sexually-violent-predator specification, we reversed the sentence and remanded the matter to the trial court with instructions to resentence Bowers in accordance with R.C. 2907.02(B). Id. at ¶43.

{¶ 24} On remand, the trial court imposed an indefinite term of 25 years to life after making a factual finding that Bowers had purposefully compelled the victim to submit by force or threat of force. On appeal, Bowers argues the sentence of 25 years to life is not authorized because he was not charged with or convicted of purposely compelling his victim to submit by force or threat of force.

The Plain Language of the Rape-Sentencing Statutes

{¶ 25} A trial court is authorized to impose a sentence of life without parole pursuant to R.C. 2907.02(B) when the victim is under ten years of age. If the court does not impose a sentence of life without parole, then the court is required to impose a sentence under R.C. 2971.03. Under R.C. 2971.03(B)(1), the court shall impose a minimum term of 15 years and a maximum of life imprisonment, if the victim was less than ten years of age. R.C. 2971.03(B)(1)(b). See State v. Gibson , 2d Dist. Clark No. 2013 CA 112, 2014-Ohio-5573, 2014 WL 7224625, ¶ 13 (explaining that the trial court has three sentencing options for a defendant convicted of raping a child under ten years of age: "1) pursuant to R.C. 2907.02(B), the trial court can impose a sentence of life imprisonment without the possibility of parole; 2) pursuant to R.C. 2971.03(B)(1)(b), the trial court can sentence the defendant to life imprisonment with the possibility of parole after fifteen years; or 3) the trial court can sentence the defendant to an indefinite prison term with a minimum of fifteen years"); State v. Tschudy , 9th Dist. Summit No. 24053, 2008-Ohio-4073, 2008 WL 3413028, ¶ 8 (concluding that when the trial court did not impose a sentence of life without parole for a violation of R.C. 2907.02(A)(1)(b), "the trial court was then mandated to impose an indefinite term of fifteen years to life imprisonment."); State v. Jones , 12th Dist. Brown No. CA2014-09-017, 2015-Ohio-2314, 2015 WL 3671687, ¶ 10-11 (holding that "the statutory range within which appellant could have been sentenced for [rape in violation of R.C. 2907.02(A)(1)(b), with the specification that the victim was less than ten years old at the time of the offense] was either fifteen years to life with the possibility of parole, pursuant to R.C. 2971.03(B)(1)(b), or life without parole, pursuant to R.C. 2907.02(B)"); State v. Statzer , 2016-Ohio-7434, 72 N.E.3d 1202, ¶ 30 (12th Dist.) (vacating a sentence of 18 years to life because the sentencing options for a rape conviction when the victim is under ten years of age are "an indefinite term of 15 years to life in prison, pursuant to R.C. 2971.03(B)(1)(b), or life without parole, pursuant to R.C. 2907.02(B)").

{¶ 26} Under R.C. 2971.03(B)(1)(c), a trial court is required to impose a sentence of 25 years to life for the rape of a child if the offender purposely compelled the victim to submit by force or threat of force, was previously convicted of violating R.C. 2907.02(A)(1)(b), or caused serious physical harm to the victim. See State v. Bulls , 9th Dist. Summit No. 27029, 2015-Ohio-276, 2015 WL 340847, ¶ 27 (explaining that the trial court was authorized to impose a term of 25 years to life because "[t]he jury found that Mr. Bulls violated R.C. 2907.02(A)(1)(b) and, in doing so, compelled T.H. to submit by force or the threat of force").

{¶ 27} Here, there is no dispute that Bowers was not charged with or found guilty of any of the aggravating, factual findings contained in R.C. 2971.03(B)(1)(c). Rather, he was charged with and convicted of the rape of a child under the age of ten. Under the plain language of R.C. 2971.03(B)(1), the mandatory minimum sentence for the rape of a child under ten is 15 years to life. Tschudy at ¶ 8 ; Jones at ¶ 10-11 ; Statzer at ¶ 30. Therefore, the trial court exceeded its statutory authority in sentencing Bowers to 25 years to life absent a conviction that included the aggravated finding of compelling the victim to submit by force or threat of force. See State v. Louis , 2016-Ohio-7596, 73 N.E.3d 917, ¶ 77 (4th Dist.) (concluding that because the jury verdict form contained no specific finding that the victim was less than ten or that the offender used force or threat of force, had a prior conviction, or caused serious physical harm, the sentencing range for the rape of a child under 13 is a minimum term of ten years and a maximum term of life imprisonment).

{¶ 28} Nevertheless, the majority concludes that the trial court may make the finding of force, independent of the jury, to impose a sentence of 25 years to life. In reaching this decision, the majority finds that the judicial fact-finding does not violate the Sixth Amendment because the finding allows a middle sentencing option instead of altering the minimum or maximum sentence imposed. However, under R.C. 2971.03(B)(1), the minimum sentence varies "depending upon (b) the age of the victim, or other aggravating factors found in (c)." Id. at ¶ 76. Thus, the majority fails to recognize that the judicial fact-finding in this case increases the statutory minimum sentence from 15 years to 25 years, in violation of Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

{¶ 29} Although the trial court may impose a maximum sentence of life without parole, if the court chooses not to impose a life sentence under R.C. 2907.02(B), as it did twice in this case, the court "shall impose" an indefinite prison term. R.C. 2971.03(B)(1). Under R.C. 2971.03(B)(1), the court "shall impose" a minimum term of 25 years and a maximum term of life imprisonment if the offender purposely compelled the victim by force or threat of force. R.C. 2971.03(B)(1)(c). The statute does not authorize the trial court to impose a minimum term of 15 years to life if the offender used force. Thus, the majority's claim that the judicial finding of force merely gives the trial court a middle sentencing option ignores the plain language of the statute.

{¶ 30} The majority's desire to give the trial court additional sentencing options is beyond the authority of this court. This court must respect the fact that the authority to make policy decisions was conferred solely on the General Assembly. See Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212. The legislature "is vested with the power to define, classify, and prescribe punishment for offenses committed in Ohio." State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 12. Accordingly, "[j]udges have no inherent power to create sentences," id., and instead "are duty-bound to apply sentencing laws as they are written." State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22, citing Griffin & Katz, Ohio Felony Sentencing Law , Section 1:3, 4, fn. 1 (2008).

{¶ 31} Prior to the enactment of Am.Sub.S.B. No. 260 in January 2007, any offender who was convicted of the rape of a child under ten or the forcible rape of a child automatically received a sentence of life imprisonment. See former R.C. 2907.02(B). After the amendment, the legislature authorized a trial court to impose an indefinite sentence of 15 years to life for the rape of a child under ten and authorized an indefinite sentence of 25 years to life when the offender used force. R.C. 2971.03(B)(1)(b) and (c). Had the legislature intended to give trial courts additional sentencing options, it would have explicitly done so.

Judicial Fact-Finding that Increases the Statutory Minimum Sentence Violates the Sixth Amendment

{¶ 32} As the United States Supreme Court explained, the statutory minimum sentence is the minimum sentence the judge may impose based upon the facts as reflected in the jury verdict. Alleyne , 570 U.S. 99, 133 S.Ct. 2151 at 2157-2158, 2161, 186 L.Ed.2d 314, fn.2 ("Juries must find any facts that increase either the statutory maximum or minimum."). Any "[f]acts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt." Id. at 2158. In Alleyne , the court reviewed a sentencing statute that required a minimum sentence of five years if the offender used or carried a firearm. Id. at 2155. If the offender brandished the firearm, the sentence was increased to a minimum of seven years, and if the firearm were discharged, the sentence was increased to a minimum of ten years. Id. at 2155-2156. The jury verdict form included a finding that Alleyne used or carried a firearm, but did not include an additional finding that Alleyne brandished or discharged the firearm. Id. at 2156. The trial court made the factual finding that Alleyne had brandished the weapon and sentenced Alleyne to seven years on the conviction. Id.

{¶ 33} In reversing the sentence, the Alleyne court found that any "fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed." Id. at 2162. As the court further explained,

But for a finding of brandishing, the penalty is five years to life in prison; with a finding of brandishing, the penalty becomes seven years to life. Just as the maximum of life marks the outer boundary of the range, so seven year marks its floor. * * * The essential point is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime. It must, therefore, be submitted to the jury and found beyond a reasonable doubt.

Id. at 2162-2163. Because the sentencing range based upon the facts found by the jury was five years to life, the finding of brandishment by the court altered the range to seven years to life in violation of Alleyne's Sixth Amendment rights. Id. at 2163-2164.

{¶ 34} Here, the jury found Bowers guilty beyond a reasonable doubt of rape of a child under the age of ten. The minimum sentencing range for Bowers, based upon the facts as found by the jury, is 15 years to life. The aggravated factual finding of force by the court altered the minimum sentence to 25 years to life. Thus the factual finding by the court violated Bowers' Sixth Amendment rights. See Id. See also State v. Setty , 12th Dist. Clermont Nos. CA2013-06-049 and CA201306050, 2014-Ohio-2340, 2014 WL 2526073, ¶ 120-12 1 (holding that the sentence for rape of a child based on the trial court's finding of serious physical harm, and not a jury finding, was contrary to law and in violation of Apprendi ); Louis , 2016-Ohio-7596, 73 N.E.3d 917, at ¶ 79 (concluding that "because the jury did not specifically find Louis had a prior substantially similar rape conviction or caused serious physical harm during or immediately after the rapes, or the victim was less than ten, the trial court could not sentence her to life without parole" pursuant to Alleyne ).

{¶ 35} Applying Alleyne to this case, the result is the same. The jury found that the victim was under the age of ten mandating a minimum penalty of 15 years to life. With a finding of force, the penalty increases to 25 years to life. Thus, the aggravating fact of force produces a higher sentencing range, and must therefore, be submitted to the jury and found beyond a reasonable doubt.

{¶ 36} The majority's reliance on the fact that the trial court may consider statutory factors in imposing a sentence within the statutory range is misguided. It is of no consequence that a trial court may consider "relevant factors," such as evidence of force, to impose a sentence within the proscribed sentencing range. The Alleyne court made it clear that its holding did not disturb discretionary judicial fact-finding when imposing a sentence within the statutory range. Alleyne at 2163. Judges may constitutionally consider "various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute." (Emphasis in original.) Id. , quoting Apprendi , 530 U.S. at 481, 120 S.Ct. 2348, 147 L.Ed.2d 435. Any factual finding that determines or alters the statutory range by increasing either the mandatory minimum or maximum alters the legally proscribed range and must be done by a jury. Id. at 2161, fn. 2.

Conclusion

{¶ 37} Ultimately, statutes must be applied as written. Because Bowers was found guilty by the jury of rape of a child under the age of ten, and the court decided not to impose a sentence of life without parole, the court was required to impose an indefinite sentence of 15 years to life. Allowing the court to engage in judicial fact-finding, that bypasses the jury, to increase the minimum sentence to 25 years to life violates Bowers' Sixth Amendment rights. I therefore respectfully dissent.

{¶ 38} Accordingly, I would sustain the assignment of error, reverse the sentence, and remand the matter to the trial court to resentence Bowers on the rape offense under R.C. 2907.02(B) and R.C. 2971.03(B)(1)(b).

      Bowers was also not charged with a forcible rape in violation of R.C. 2907.02(B).

      R.C. 2907.02(B) states in relevant part: "Except as otherwise provided in this division, * * * an offender under division (A)(1)(b) of this section shall be sentenced to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code. * * * [I]f the victim under division (A)(1)(b) of this section is less than ten years of age, in lieu of sentencing the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, the court may impose upon the offender a term of life without parole."


author: CARR, Judge.

text:
    Sharon W. SEATON, Administrator, Appellee v. CITY OF WILLOUGHBY, et al., Appellant
    No. 28332
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: January 10, 2018
    JAMES A. CLIMER, JOHN T. MCLANDRICH, FRANK H. SCIALDONE, and JOHN D., PINZONE, Attorneys at Law, for Appellant.
    CHRISTIAN PATNO and COLIN R. RAY, Attorneys at Law, for Appellee.
    DECISION AND JOURNAL ENTRY
   CARR, Judge.

{¶ 1} Appellant, the City of Willoughby, appeals the judgment of the Summit County Court of Common Pleas. This Court affirms.

I.

{¶ 2} This matter arises out of the tragic death of Shawn Wilson on June 11, 2012. Wilson was dispatched to work on a paving project through the course of his employment with the Willoughby Street Department. The crew began patching potholes at the bottom of a hill on Strawberry Lane, a residential street in Willoughby. On that particular day, Wilson was operating an asphalt roller known as the Maudlin Brothers Model 1450. When the crew reached the top of the hill, the group of vehicles working on the project inadvertently blockaded the driveway of a resident attempting to access the street. Wilson moved the asphalt roller forward to allow the resident to exit his driveway. Unexpectedly, the roller began to roll down an incline at a high rate of speed. Wilson could not stop the roller as it careened out of control. When he attempted to jump off the machine to safety, he struck his head on the pavement. He subsequently died from his injuries.

{¶ 3} On January 14, 2014, Sharon W. Seaton, as the Administrator of the Estate of Shawn Wilson, filed a complaint against numerous defendants, including the City of Willoughby ("the City"). The complaint contained claims for survivorship and wrongful death. With leave of court, Seaton filed an amended complaint in April 2015. The City filed an answer generally denying the allegations in the complaint and setting forth numerous defenses, including that the City was immune from liability under R.C. 4123.74. While the Seaton's claims against the City endured, the claims against the other defendants were eventually dismissed from the action.

{¶ 4} On January 7, 2016, the City filed a motion for summary judgment arguing that it was entitled to workers compensation immunity under R.C. 4123.74 as to the survivorship and wrongful death claims. The City further maintained that the employer intentional tort exception to immunity was not applicable under the facts of this case. Seaton filed a memorandum in opposition to the motion and the City replied thereto. Seaton was permitted to file a sur-reply brief. The trial court ultimately denied the motion for summary judgment, concluding that there was a question of fact as to whether the City deliberately removed a safety guard from the asphalt roller.

{¶ 5} On appeal, the City raises one assignment of error.

II.

ASSIGNMENT OF ERROR

THE LOWER COURT ERRED WHEN IT DENIED THE APPELLANT/CITY OF WILLOUGHBY THE BENEFIT OF IMMUNITY UNDER R.C. CHAPTER 4123.

{¶ 6} In its sole assignment of error, the City contends that the trial court erred when it denied the motion for summary judgment. This Court disagrees.

{¶ 7} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We apply the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. , 13 Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983).

{¶ 8} The procedure set forth in Civ.R. 56"represents a shortcut through the normal litigation process." AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Pursuant to Civ.R. 56(C), summary judgment is proper if:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

{¶ 9} While the moving party bears the initial burden of showing that no genuine issue of material fact exists for trial, once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the party's pleadings. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). Rather, the burden then shifts to the non-moving party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts which show that there is a genuine issue of material fact for trial. Id. at 293, 662 N.E.2d 264. Civ.R. 56(C) designates the "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action," as proper in demonstrating that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. at 292-293, 662 N.E.2d 264. Throughout, the evidence must be construed in favor of the non-moving party. Temple , 50 Ohio St.2d at 327, 364 N.E.2d 267. A disputed fact is material if it impacts the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc. , 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999).

{¶ 10} " R.C. 4123.74 provides immunity to employers from damage liability to employees[.]" Catalano v. Lorain , 161 Ohio App.3d 841, 2005-Ohio-3298, 832 N.E.2d 134, ¶ 11 (9th Dist.). Pursuant to the immunity conferred by R.C. 4123.74, a workers' compensation claim is an employee's exclusive remedy for most workplace injuries. Cincinnati Ins. Co. v. DTJ Ents. , 143 Ohio St.3d 197, 2015-Ohio-843, 36 N.E.3d 122, ¶ 7. "But when an employee seeks damages resulting from an act or omission committed by the employer with the intent to injure, the claim arises outside of the employment relationship, and the workers' compensation system does not preempt the employee's cause of action." Id. at ¶ 7, citing Brady v. Safety-Kleen Corp. , 61 Ohio St.3d 624, 576 N.E.2d 722 (1991), paragraph one of the syllabus. The requirements for employer liability are set forth in R.C. 2745.01, which states:

(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.
(B) As used in this section, "substantially certain" means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.
(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

{¶ 11} The Supreme Court held that, "as used in R.C. 2745.01(C), 'equipment safety guard' means a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment, and the 'deliberate removal' of an equipment safety guard occurs when an employer makes a deliberate decision to lift, push aside, take off, or otherwise eliminate that guard." Hewitt v. L.E. Myers Co. , 134 Ohio St.3d 199, 2012-Ohio-5317, 981 N.E.2d 795, ¶ 2.

{¶ 12} "[A]bsent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee's exclusive remedy is within the workers' compensation system." Houdek v. ThyssenKrupp Materials N.A., Inc. , 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 25. Significantly, however, the Supreme Court of Ohio recently observed that " R.C. 2745.01(C) permits an employee to prove the employer's intent without direct evidence. When the employee is injured as a direct result of the employer's deliberate removal of an equipment safety guard, R.C. 2745.01(C) creates a rebuttable presumption that the employer intended to injure. It is not a separate tort, it merely provides a legally cognizable example of intent to injure." (Internal quotations omitted.) Cincinnati Ins. Co. at ¶ 12, quoting Irondale Indus. Contractors, Inc. v. Virginia Sur. Co., Inc. , 754 F.Supp.2d 927, 933 (N.D.Ohio 2010).

{¶ 13} In its July 12, 2016 journal entry denying the motion for summary judgment, the trial court noted Seaton's contention that Willoughby had removed three separate safety guards, namely (1) the emergency parking brake; (2) the manufacturer's manual for the roller; and (3) the necessary cotter pin master link. The court rejected the notion that either a manufacturer's manual or a master link could qualify as a safety guard. With respect to the parking brake, however, the trial court determined that the parking brake did constitute a safety guard because its primary purpose was to ensure safety by preventing movement when the roller was not in motion. The trial court further concluded that there was, at a minimum, a question of fact regarding whether the City had deliberately disabled the parking brake. In reaching this conclusion, the trial court highlighted admissions by City employees that the parking brake had been modified, as well as additional evidence which tended to show that the modifications effectively disabled the parking brake.

{¶ 14} On appeal, the City maintains that it is immune from liability under R.C. 4123.74. While the City does not challenge the trial court's conclusion that the parking brake qualifies as a safety guard, the City contends that the trial court erred in denying the motion for summary judgment because there is no evidence that the City deliberately removed or disabled the parking brake on the asphalt roller. It follows, argues the City, that the employer intentional tort exception to immunity as articulated in R.C. 2745.01(C) is inapplicable in this case because there is no evidentiary basis to conclude that the City made a deliberate decision to remove a safety guard.

{¶ 15} The parties put forth extensive evidence in support of their summary judgment filings. The deposition testimony of George Trost was critical to the trial court's determination that there was a question of fact on the issue of whether the City disabled the parking break. Trost works as a supervisor for the City where he manages and schedules maintenance and repairs to city vehicles. Before ascending to supervisor, Trost worked as a mechanic for the City for 28 years. After the accident that resulted in Wilson's death, Trost, along with several inspectors from the Ohio Bureau of Worker's Compensation, reviewed the roller at the police department. The City had a practice of inspecting the Maudlin once every 100 hours that it was in use. A reading of the meter on the roller suggested that the roller had been in use for approximately 17 hours since its last inspection. The group tested the parking brake at the police station and discovered that the brake was not tight enough and, thus, not operational. Trost indicated that he had no reason to believe the condition of the parking break at the police station was different than the condition of the parking break at the time of the accident. Trost also did not dispute the finding in the BWC's report that the parking brake was in the "on" position when they inspected it at the police station.

{¶ 16} Trost became aware that the parking break needed to be repaired in 2010, prior to the accident. Trost testified that work was done on the brake "shortly thereafter[.]" When asked if he knew whether the modification in anyway effected the roller's braking system, Trost responded, "No, I do not." When pressed on whether he noticed "any difference in the braking before as opposed to after the modification[,]" Trost simply stated, "Nope." When asked if he disagreed with the BWC investigators who observed that the rust on the rotor was evidence that the brake had not been working for some time, Trost responded, "I'm not sure." While other City employees indicated that they had no issues with the parking brake during the time leading up to the accident, Trost acknowledged that he "couldn't say for sure" the last time the parking brake was operational prior to Wilson's accident.

{¶ 17} Though Trost denied having personal knowledge of additional modifications to the parking brake, he admitted during his deposition testimony that, over the years, several other aspects of the parking braking system had been altered, such as adding an extender to the brake lever, lowering the brake mounting bracket, and cutting away part of the sheet metal that surrounds the calipers. While there were service orders for certain repairs, Trost acknowledged that the record keeping in the garage was "absolutely horrible" prior to Wilson's accident. Trost ultimately conceded that "the brakes and the calipers were substantially modified by the [C]ity from the time that they were received from the manufacturer[.]" Woodrow Wilhelm, who served as a vehicle maintenance supervisor in the City prior to his retirement, testified that the braking system is one of the most important safety devices on the roller. Wilhelm indicated that he would never modify the braking system on the roller without consulting the manufacturer due to the safety concerns. Both Seaton and the City retained experts who rendered competing opinions on the condition of the parking brake, with Seaton's expert stating that the alteration of the brake caliper level effectively disabled the parking brake.

{¶ 18} Viewing the evidence in favor of the nonmoving party, this Court cannot say that the trial court erred in denying the City's motion for summary judgment. While the City points to the Supreme Court's decisions in Pixley v. Pro-Pack Industries, Inc. , 142 Ohio St.3d 203, 2014-Ohio-5460, 28 N.E.3d 1249 and Hewitt , 2012-Ohio-5317, 134 Ohio St.3d 199, 981 N.E.2d 795, in support of the proposition that there must be "a careful and thorough decision to get rid of or eliminate an equipment safety guard[,]" the evidentiary posture in those cases was completely different than the case at bar. Pixley at ¶ 19, quoting Hewitt at ¶ 29. In Pixley , the high court concluded that R.C. 2745.01(C) was inapplicable because there was no evidence that the defendant tampered with the safety guard or did anything that "otherwise caused the [safety guard] to fail." Pixley at ¶ 21. Likewise, in Hewitt , the Supreme Court concluded that the failure to instruct employees to wear protective items and take precautionary measures did not equate to the deliberate removal of a safety guard. Hewitt at ¶ 30. Here, Trost acknowledged that the parking brake was substantially modified by the City. Wilhelm indicated that altering the design of the parking brake without consulting the manufacturer was "dangerous" because those modifications would substantially alter "the safety aspect" of the roller's design. While there was contrasting evidence, including competing statements from experts, regarding the functionality of the parking brake prior to the accident, Seaton presented evidence that the City's modifications disabled the parking brake. Even though the City presented evidence that the roller was used without incident prior to the accident, we are mindful that "[s]imply because people are not injured, maimed or killed every time they encounter a device or procedure is not solely determinative of the question of whether the procedure or device is dangerous or unsafe." Taulbee v. Adience, Inc., BMI Div. , 120 Ohio App.3d 11, 20, 696 N.E.2d 625 (10th Dist.1997), quoting Cook v. Cleveland Elec. Illum. Co. , 102 Ohio App.3d 417, 429-430, 657 N.E.2d 356 (8th Dist.1995). Thus, under these circumstances, where there remains a question of material fact regarding whether the City deliberately removed a safety guard by disabling the parking brake, we cannot say that the trial court erred in denying the City's motion for summary judgment.

{¶ 19} The City's assignment of error is overruled.

III.

{¶ 20} Willoughby's assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

SCHAFER, P.J.

CALLAHAN, J.

CONCUR.