author: BROWN, J.

text:
    CITY OF DUBLIN, Plaintiff-Appellee, v. Karen Michelle R. FRIEDMAN, et al., Defendants-Appellees,
    CHKRS, LLC, Defendant-Appellant.
    No. 16AP-516
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 19, 2017
    On brief: Frost Brown Todd, LLC, Philip K. Hartmann, Columbus, Scott D. Phillips, West Chester, and Yazan S. Ashrawi, Columbus, for City of Dublin. Argued: Yazan S. Ashrawi.
    On brief: Karen Edwards-Smith ; Warner Mendenhall, Akron, for appellant. Argued: Karen Edwards-Smith.
    DECISION
   BROWN, J.

{¶ 1} Defendant-appellant, CHKRS, LLC, appeals from a judgment of the Franklin County Court of Common Pleas, granting the motion of defendant-appellee, Karen Michelle R. Friedman, to withdraw funds deposited by plaintiff-appellee, city of Dublin, and holding that Dublin properly exercised its quick-take condemnation authority. Because (1) CHKRS did not procure on the purchase option pursuant to the lease, (2) CHKRS's challenge to Dublin's exercise of its quick-take authority is moot, and (3) the trial court did not abuse its discretion in denying CHKRS's motion for leave to amend its answer, we affirm.

{¶ 2} On September 30, 2015, Dublin filed a complaint for appropriation of an interest in Friedman's property. Dublin is a municipal corporation, and Friedman is the owner of real property located at 6310 Riverside Drive, Dublin, Ohio. On February 9, 2015, Dublin City Council passed a resolution declaring Dublin's intent to acquire a 0.100-acre permanent easement and a 0.096-acre temporary easement in Friedman's property, "for the public purpose of constructing a roundabout at the intersection of State Route 161 and Riverside Drive and a shared-use path adjacent to Riverside Drive." (Compl., Ex. A.) The easements on Friedman's property concern the shared-use path portion of the project; the description of the permanent easement states that it is a "0.100 ACRE PERMANENT BIKE PATH EASEMENT." (Emphasis sic.) (Compl., Ex. D.) On February 23, 2015, Dublin City Council passed an "emergency" ordinance, authorizing Dublin's law director to "file a petition for appropriation" of Friedman's property. (Compl., Ex. B.)

{¶ 3} Dublin asserted in the complaint that it intended "to take immediate possession of the property interest appropriated." Dublin stated that its independent appraiser found the value of the easements to be $25,080, and that it had deposited the $25,080 "in accordance with Chapter 163 of the Ohio Revised Code and the Ohio Constitution." (Compl., at ¶ 11.)

{¶ 4} After filing the original complaint, Dublin learned that CHKRS had a leasehold interest in the property pursuant to an unrecorded lease with Friedman. Dublin filed an amended complaint on October 21, 2015, adding CHKRS as a defendant to the action.

{¶ 5} On November 20, 2015, Friedman filed an answer to the complaint, denying that Dublin sought the easements "for roadway purposes." Friedman alleged that Dublin sought the easements "solely and only to construct a bike path and sidewalk," and that Dublin did not have the "right to take immediate possession" of the property for such uses. (Friedman Answer at ¶ 8, 11.)

{¶ 6} On November 23, 2015, CHKRS filed an answer alleging Dublin had already taken possession of the property, "taken down numerous trees in the permanent and temporary easement areas," and "destroyed the natural beauty of a rocky ravine." (CHKRS's Answer at ¶ 5.) CHKRS asserted that Dublin's "appropriation of interests in and portions of Defendant's property to improve a public road [were] not necessary." (CHKRS's Answer at ¶ 8.)

{¶ 7} On November 30, 2015, Friedman filed a motion for distribution of the $25,080 deposit. CHKRS filed a brief in response to Friedman's motion for disbursement, noting it had an "interest in the property" and asking the court to "make distribution of the deposit accordingly." (CHKRS's Response at 3.) The court scheduled the matter for a March 4, 2016 pretrial conference.

{¶ 8} On March 9, 2016, the court issued a journal entry regarding the March 4 pretrial conference. The court noted that the conference "was held on the record," and that counsel "for all parties were present, as were representatives of the parties." The court noted that, although both defendants challenged "whether the Project qualifies for 'quick take' treatment under the Ohio Constitution," neither defendant "sought an injunction." (Mar. 9, 2016 Entry at 1.) Friedman and Dublin informed the court they had "agreed upon a final settlement," if the court ruled that the condemnation award belonged to Friedman. (Mar. 9, 2016 Entry at 2.) The court concluded, over CHKRS's objection, that it should "first address which defendant is entitled to the deposit." (Mar. 9, 2016 Entry at 1.)

{¶ 9} The court stated the parties had stipulated to certain "undisputed facts the court may consider in issuing a ruling on the distribution motion, and to the extent necessary on the meaning of ¶ 31 of the lease." The parties "stipulated * * * that CHKRS is current on their rent; and that CHKRS has not exercised the option to purchase." (Mar. 9, 2016 Entry at 2.) Paragraph 31 of the lease, titled "Funds Issued From City of Dublin and/or ODOT," states that "[a]ny monies dispersed by the City of Dublin or ODOT are payable to Karen Michelle Friedman until the Lessee has procured on the purchase option." (CHKRS's Answer, Ex. A ("Lease") at ¶ 31.)

{¶ 10} On March 11, 2016, Friedman filed a brief stating that, as CHKRS had not "procured on its option to purchase the Property," the lease required that "all of the monies associated with Dublin's appropriation must be distributed to Friedman." (Friedman's Brief at 2.)

{¶ 11} CHKRS filed a brief in opposition to Friedman's brief on March 18, 2016, stating that, "on March 7, 2016 CHKRS, LLC exercised the option to purchase the property ." (Emphasis sic.) (CHKRS's Brief in Opposition at 1.) CHKRS asserted that it now had "a contract to purchase the property," and that Friedman could not convey the easements to Dublin, as she had "promised to transfer all of the property to CHKRS upon its exercise of the option." (CHKRS's Brief in Opposition at 1-2.) CHKRS attached the affidavit of Robert G. Smith to its brief, in which Smith averred that he was "a member of CHKRS, LLC" and had "exercised CHKRS, LLC's option to purchase 6310 Riverside Drive." (Smith Aff. at ¶ 1, 2.) A copy of the March 7 e-mail from Smith to Friedman was attached to Smith's affidavit. The e-mail states, "[l]et this serve as 30 day notice per the Lease Agreement * * * that CHKRS, LLC, is exercising its option to purchase said property." (Smith Aff., Ex. 1.)

{¶ 12} On March 31, 2016, CHKRS filed a motion for leave to amend its answer. CHKRS asserted that, as it had "exercised its option to purchase the property," it had counterclaims and cross-claims which "matured after the City filed its amended complaint." (CHKRS's Mot. to Amend Answer at 1.)

{¶ 13} On June 3, 2016, the court issued a journal entry denying CHKRS's motion for leave to amend its answer, granting Friedman's motion to withdraw the deposit, and holding that Dublin properly exercised its quick-take authority. Regarding the motion to withdraw, the court concluded that CHKRS had "not 'procured' the property" pursuant to ¶ 31 of the lease, as "there was never a closing." The court also noted that CHKRS had stipulated at the March 4, 2016 conference "that the Option had never been exercised and more importantly asked for no additional time to consider exercising the Option. (Mar. 4, 2016 Tr. at 19)." (Decision at 9.)

{¶ 14} Regarding the quick-take, the court observed that an agency is entitled to quick-take property to make or repair public roads, and that through the project Dublin was "making or repairing one of the largest and busiest public highway intersections in this County." The court concluded that the shared-use path was a "meaningful appurtenance to the 'ordinary' roadway," as it would enhance "safety for motorists and users of bicycles" by "getting bicycles and other vehicles * * * completely off the motorized vehicle portion" of the road. (Decision at 12.)

{¶ 15} On June 16, 2016, the court issued a final judgment entry reciting its findings from the June 3, 2016 entry. The court noted that, pursuant to the settlement agreement, Dublin had agreed to pay Friedman $47,500 for the easements. The court ordered Dublin to pay Friedman the additional $22,420 after she received the $25,080 deposit, and ordered Friedman to "convey, transfer, and forever grant a 0.100-acre permanent easement and a 0.096-acre temporary easement" to Dublin. The court instructed Dublin to "file a certified copy of this Entry with the [Franklin County] Recorder at Dublin's cost." (Final Jgmt. Entry at 2.) The entry stated that it was "a final, appealable order for which there is no just cause for delay." (Final Jgmt. Entry at 4.)

{¶ 16} CHKRS appeals, assigning the following errors for our review:

[I.] The trial court erred in holding that CHKRS, LLC did not exercise its option to purchase the property under the lease agreement.
[II.] The trial court erred in construing paragraph 31 of the lease between Friedman and CHKRS, LLC so as [to] entitle Friedman to the funds on deposit, to permit her to convey easements to the City, to settle the eminent domain litigation and terminate the case.
[III.] The trial court erred in ruling that the City of Dublin has the authority to utilize the 'quick take' provision of Chapter 163 of [the] Ohio Revised Code to acquire land for a shared use path as the City does not have the power to appropriate property for a shared use path; as it is not appropriating the property for the purpose of making or repairing a road; and as the City Council's resolution authorizing the appropriation did not authorize the City to utilize the "quick take provisions."
[IV.] The trial court erred in denying CHKRS, LLC's motion to amend its answer to incorporate its property interest based on it's [sic] exercise of the purchase option, as CHKRS, LLC now is an equitable owner of the property and has a binding purchase contract.

{¶ 17} Before addressing the assignments of error, we must first address Dublin's motion to dismiss the appeal as moot. Dublin notes that CHKRS never sought a stay of the June 16, 2016 final judgment entry, and never sought an injunction to prevent Dublin from constructing the shared-use path on the property. Dublin had the easements recorded in its name on July 27, 2016. Dublin released all necessary funds to Friedman and, therefore, argues it has satisfied the judgment. Dublin has now completed construction of the entire project. (See Mot. to Dismiss at Ex. A.) As such, Dublin argues that the present appeal is moot.

{¶ 18} Courts will not decide moot cases. In re A.G. , 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37 ; Tschantz v. Ferguson , 57 Ohio St.3d 131, 133, 566 N.E.2d 655 (1991). "Actions are moot 'when they are or have become fictitious, colorable, hypothetical, academic or dead. The distinguishing characteristic of such issues is that they involve no actual genuine, live controversy, the decision of which can definitely affect existing legal relations.' " In re L.W. , 168 Ohio App.3d 613, 2006-Ohio-644, 861 N.E.2d 546, ¶ 11 (10th Dist.), quoting Grove City v. Clark , 10th Dist. No. 01AP-1369, 2002-Ohio-4549, 2002 WL 2025334, ¶ 11. A moot case " ' "seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason cannot have any practical legal effect upon a then-existing controversy." ' " Id. , quoting Grove City at ¶ 11, quoting Culver v. Warren , 84 Ohio App. 373, 393, 83 N.E.2d 82 (7th Dist.1948).

{¶ 19} When an appeal involves a construction project, and "the appellant fails to obtain a stay of execution of a trial court's ruling or an injunction pending appeal, and construction commences, the appeal is rendered moot." TP Mechanical Contrs., Inc. v. Franklin Cty. Bd. of Commrs. , 10th Dist. No. 08AP-108, 2008-Ohio-6824, 2008 WL 5381926, ¶ 20, citing Redmon v. Columbus City Council , 10th Dist. No. 05AP-466, 2006-Ohio-2199, 2006 WL 1174506. Additionally, "[i]t is a well-established principle of law that a satisfaction of judgment renders an appeal from such judgment moot." Bob Krihwan Pontiac-GMC Truck, Inc. v. Gen. Motors Corp. , 145 Ohio App.3d 671, 675, 763 N.E.2d 1253 (10th Dist.2001). See also Queensgate Terminals, LLC v. Cincinnati , 1st Dist. No. C-110653, 2013-Ohio-4219, 2013 WL 5436536, ¶ 13.

{¶ 20} "When a case is deemed moot, the defending party is entitled to a dismissal as a matter of right." Lund v. Portsmouth Local Air Agency , 10th Dist. No. 14AP-60, 2014-Ohio-2741, 2014 WL 2895887, ¶ 6, citing United States v. W.T. Grant Co. , 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). The rules regarding mootness apply to appeals. Cincinnati Gas & Elec. Co. v. Pub. Util. Comm. of Ohio , 103 Ohio St.3d 398, 2004-Ohio-5466, 816 N.E.2d 238, ¶ 15.

{¶ 21} However, "[a] cause will become moot only when it becomes impossible for a tribunal to grant meaningful relief, even if it were to rule in favor of the party seeking relief." Joys v. Univ. of Toledo , 10th Dist. No. 96APE08-1040, 1997 WL 217581 (Apr. 29, 1997). See also State ex rel. Gaylor, Inc. v. Goodenow , 125 Ohio St.3d 407, 2010-Ohio-1844, 928 N.E.2d 728, ¶ 11. Thus, to ascertain whether the present appeal is moot, we must determine whether it would be possible to grant CHKRS meaningful relief, if we were to rule in CHKRS's favor.

{¶ 22} CHKRS contends that the appeal is not moot based on R.C. 163.09(B)(2). By way of background, R.C. Chapter 163 "was enacted effective January 1, 1966, to establish uniform eminent domain procedure for all appropriations sought by public and private agencies." Weir v. Wiseman , 2 Ohio St.3d 92, 93-94, 443 N.E.2d 152 (1982). R.C. 163.01(E) defines a property "owner" as "any individual, partnership, association, or corporation having any estate, title, or interest in any real property sought to be appropriated." Accordingly, a tenant is an "owner" of property for purposes of R.C. Chapter 163. See State ex rel. Horwitz v. Court of Common Pleas , 65 Ohio St.3d 323, 326, 603 N.E.2d 1005 (1992) (observing that "[b]y virtue of her leasehold interest, Horwitz [was] a 'property owner' as defined by R.C. 163.01(C)," and that the "General Assembly has already determined that [a lessee] has standing in [an] appropriation proceeding independent of [their lessor's] interests and notwithstanding [their lessor's] apparent acquiescence in the matter"). Id. at 327, 603 N.E.2d 1005.

{¶ 23} R.C. 163.09(B)(1) states that "[w]hen an answer is filed pursuant to section 163.08 of the Revised Code and any of the matters relating to the right to make the appropriation, the inability of the parties to agree, or the necessity for the appropriation are specifically denied in the manner provided in that section, the court shall set a day * * * to hear those matters." R.C. 163.08 provides that the "agency's right to make the appropriation, the inability of the parties to agree, and the necessity for the appropriation shall be resolved by the court in favor of the agency unless such matters are specifically denied in the answer and the facts relied upon in support of such denial are set forth therein."

{¶ 24} R.C. 163.09(B)(2) provides, in relevant part, as follows:

Except as provided in division (B)(3) of this section, an order of the court in favor of the agency on any of the matters or on qualification under section 163.06 of the Revised Code shall not be a final order for purposes of appeal. An order of the court against the agency on any of the matters or on the question of qualification under section 163.06 of the Revised Code shall be a final order for purposes of appeal. If a public agency has taken possession prior to such an order and such an order, after any appeal, is against the agency on any of the matters, the agency shall restore the property to the owner in its original condition or respond in damages, which may include the items set forth in division (A)(2) of section 163.21 of the Revised Code, recoverable by civil action, to which the state consents.

{¶ 25} R.C. 163.21(A)(2) identifies witness fees, attorney fees, and other actual expenses as items a property owner may recover. R.C. 163.06 details the quick-take provisions, which permit "an agency to take immediate possession of property after making a deposit of the assessed value of the property with the court." Village of Octa v. Octa Retail, LLC , 12th Dist. No. CA2007-04-015, 2008-Ohio-4505, 2008 WL 4117083, ¶ 9.

{¶ 26} The Ohio Constitution, Article I, Section 19 provides that, whenever private property "shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury." However, when property is taken "in time of war or other public exigency, * * * or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money." Ohio Constitution, Article I, Section 19. Thus, " '[p]rivate property may be taken for the purpose of making or repairing roads without first either compensating the owner or securing such compensation be made, provided compensation is subsequently determined.' " Village of Octa at ¶ 8, quoting 38 Ohio Jurisprudence 3d, Eminent Domain, Section 246, at 317 (2003).

{¶ 27} The quick-take provision in R.C. 163.06(B) provides that "[a] public agency appropriating property for the purpose of making or repairing roads which shall be open to the public, without charge, * * * may deposit with the court at the time of filing the petition the value of such property appropriated," as determined by the "agency, and * * * thereupon take possession of and enter upon the property appropriated." After the R.C. 163.06 deposit "is made by the public agency," the property owner "may apply to the court to withdraw the deposit, and such withdrawal shall in no way interfere with the action." R.C. 163.06(C). See also R.C. 163.18 (stating that "the court shall hear evidence as to the respective interests of the owners in the property and may make distribution of the deposit or award accordingly"); Pokorny v. Internal. Hod Carriers Bldg. & Common Laborers Union, 38 Ohio St.2d 177, 179, 311 N.E.2d 866 (1974) (holding that "if there is more than one interest or estate in land sought to be appropriated, a bifurcated proceeding is required," whereby " 'the proper method of fixing the value of each interest or estate is to determine the value of the property as a whole, with a later apportionment of the amount awarded among the several owners according to their respective interests' "). Id. , quoting Sowers v. Schaeffer , 155 Ohio St. 454, 99 N.E.2d 313 (1951), paragraph one of the syllabus.

{¶ 28} CHKRS asserts that the last sentence of R.C. 163.09(B)(2) prevents the appeal from being moot, because, if "the right to take the property is reversed on appeal, the City must restore the property or answer in damages." (CHKRS's Brief in Opp. to Mot. to Dismiss at 8.) Indeed, if this court were to rule in CHKRS's favor on the issues presented on appeal, finding that CHKRS did procure on the purchase option, was entitled to receive money from Dublin, and that Dublin did not have a right to quick-take the property, R.C. 163.09(B)(2) provides that Dublin could be ordered to restore the property to its original condition or respond in damages. Although construction of the project is complete, and accordingly Dublin could not now restore the property to its original condition, the ability to award CHKRS's attorney fees and other damages preserves CHKRS's ability to receive meaningful relief in this appeal. Compare State ex rel. Cincinnati Enquirer v. Heath , 121 Ohio St.3d 165, 2009-Ohio-590, 902 N.E.2d 976, ¶ 18 (holding that "a claim for attorney fees in a public-records mandamus action is not rendered moot by the provision of the requested records").

{¶ 29} Dublin asserts that the last sentence " R.C. 163.09(B)(2) is not applicable to [the] present appeal" because "the trial court's decision in Dublin's favor is not a final appealable order." (Dublin's Reply at 3.) Dublin contends that the last sentence of R.C. 163.09(B)(2)"is only applicable to a decision after an appeal by the taking agency against which a court has ruled ," whereas "an order of the court in favor of the agency on matters or qualifications under R.C. 163.06 * * * is 'not a final order for purposes of appeal. ' " (Emphasis sic.) (Dublin Reply at 4.)

{¶ 30} The final appealable order rules in R.C. 163.09(B)(2) concern the time at which a party may appeal the trial court's initial ruling on the right or necessity of the appropriation. Thus, while a "trial court's order in favor of an appropriating agency, entered pursuant to R.C. 163.09(B), is not subject to immediate appellate review," such an order is reviewable "after a jury has assessed compensation and damages and the trial court enters an order, pursuant to R.C. 163.15, which disposes of the whole case." Cincinnati Gas & Electric Co. v. Pope , 54 Ohio St.2d 12, 374 N.E.2d 406 (1978), syllabus. See also Horwitz at 326, 603 N.E.2d 1005 ; Cincinnati v. Dimasi , 1st Dist. No. C-060368, 2006-Ohio-3345, 2006 WL 1791494, ¶ 5. When a court rules in favor of the agency on the preliminary issues of right or necessity, "the court shall set a time for the assessment of compensation by the jury." R.C. 163.09(B)(2). Thus, "the statutory scheme of R.C. Chapter 163 contemplates that the property owner may obtain appellate review only after the preliminary issues are decided," and "a jury assesses compensation." Pope at 17, 374 N.E.2d 406. "The resulting consolidation of issues on appeal thus precludes piecemeal litigation, thereby fostering the conservation of judicial energy." Id.

{¶ 31} The June 16, 2016 final judgment entry resolved the preliminary issue of Dublin's right to quick-take the property, but also assessed compensation and disposed of the entire case. See Cassady v. Columbus , 31 Ohio App.2d 100, 106, 286 N.E.2d 318 (10th Dist.1972) (noting that the "constitutional right to have a jury fix the compensation for property taken may be waived"). Accordingly, as CHKRS appealed from the final judgment entry disposing of the entire case, and not from the court's ruling on only the preliminary issues, the appeal bar in R.C. 163.09(B)(2) is inapplicable to the present matter.

{¶ 32} Dublin further asserts that "pursuant to R.C. 163.09(B)(3), CHKRS does not have a right to appeal the trial court's order in favor of Dublin in the matters CHKRS denied in its answer," because Dublin appropriated "the property interests for the purpose of making or repairing roads." (Dublin's Reply at 5.) R.C. 163.09(B)(3) provides that an owner does have "a right to an immediate appeal" on the preliminary issues, "if the order of the court is in favor of the agency in any of the matters the owner denied in the answer, unless the agency is appropriating property * * * for the purpose of making or repairing roads which shall be open to the public without charge."

{¶ 33} R.C. 163.09(B)(3), like (B)(2), concerns the time at which a party may appeal a court's ruling on the preliminary issues. R.C. 163.09(B)(3) provides an exception to the general rule of no immediate appeal in (B)(2) when a court rules in favor of the agency on a matter the owner denied in their answer. The rule reverts to the general rule of no immediate appeal when the agency is appropriating the property to make or repair a public road. However, the court's ruling on any preliminary issue is appealable after compensation has been assessed and the court disposes of the entire case. Pope at syllabus.

{¶ 34} Based on the foregoing, Dublin's motion to dismiss the appeal is denied.

{¶ 35} CHKRS's first assignment of error asserts the trial court erred in holding that CHKRS did not exercise its option to purchase the property. CHKRS's second assignment of error asserts the trial court erred by construing ¶ 31 of the lease to permit Friedman to receive the funds on deposit and to convey the easements to Dublin. As these assignments of error both concern the terms of the lease agreement, we address them jointly.

{¶ 36} "Under Ohio law, 'leases are contracts and, as such, are subject to traditional rules governing contract interpretation.' " Plaza Dev. Co. v. W. Cooper Ents., L.L.C. , 2014-Ohio-2418, 12 N.E.3d 506, ¶ 25, quoting Heritage Court LLC v. Merritt , 187 Ohio App.3d 117, 2010-Ohio-1711, 931 N.E.2d 194, ¶ 14 (3d Dist.)"A court's fundamental purpose in interpreting a contract is to 'determine and carry out the intention of the parties.' " Id. , quoting Merritt at ¶ 14. "In determining the intent of the parties, the court must read the contract as a whole and give effect to every part of the contract, if possible." Drs. Kristal & Forche, D.D.S., Inc. v. Erkis , 10th Dist. No. 09AP-06, 2009-Ohio-5671, 2009 WL 3465916, ¶ 23. Common words are presumed to hold their ordinary meaning unless manifest absurdity results, or some other meaning is clearly evidenced from the instrument. Plaza Dev. Co. at ¶ 25.

{¶ 37} "If a contract is clear and unambiguous, then its interpretation is a matter of law and there is no issue of fact to be determined." Inland Refuse Transfer Co. v. Browning-Ferris Industries, Inc. , 15 Ohio St.3d 321, 322, 474 N.E.2d 271 (1984), citing Alexander v. Buckeye Pipeline Co. , 53 Ohio St.2d 241, 374 N.E.2d 146 (1978). "However, if a term cannot be determined from the four corners of a contract, factual determination of intent or reasonableness may be necessary to supply the missing term." Id. , citing Hallet & Davis Piano Co. v. Starr Piano Co. , 85 Ohio St. 196, 97 N.E. 377 (1911).

{¶ 38} CHKRS and Friedman entered into a residential lease with an option to purchase on July 29, 2015; the lease term was from August 1, 2015 to July 31, 2018. CHKRS had to pay a "non-refundable down payment" of $8,500 before taking possession, and the down payment would "be applied towards purchase price of home at the end of the three (3) year lease if lessee chooses to purchase home." (Lease at ¶ 4.)

{¶ 39} Paragraph 30 of the lease, titled "Option to Purchase," states as follows:

A. Lessee shall have the option to purchase said property anytime during the three year lease agreement with a 30 day prior notice to lessor. The purchase price shall be One Hundred Eighty Eight Thousand Dollars ($188,000.00) net to seller. There shall be no prepayment penalty for paying the balance of One Hundred Seventy Nine Thousand Five Hundred Dollars ($179,500.00) net to seller before the end of the three year lease, after due to Lessor at time of procurement.
B. All documents and funds pertaining to the purchase of the Demised Premises shall be deposited in escrow with the Escrow Agent in time to permit the Closing to occur on a date which is not later than thirty (30) days after the Option is exercised.
C. Transfer of Demised Premises shall be by general warranty deed for the premises free and clear of all encumbrances, with any dower rights released, conveying to Lessee or Lessee's nominee fee simple absolute title, free and clear of all liens, conditions, easements, limitations, covenants, reservations, claims, restrictions, and encumbrances whatsoever, except real estate taxes and assessments not then due and payable, zoning and building ordinances and governmental regulations, and those recorded easements, covenants and restrictions existing of record as of the date of this lease. Prior to depositing the deed in escrow, Lessor shall deliver to Lessee a true copy thereof. Lessor shall discharge, at Lessor's sole cost and expense, at or prior to closing, all mortgages, deeds of trusts, financing statements, and other instruments evidencing or securing the repayment of debt, judgment liens and any other liens of a liquidated amount evidencing a monetary obligation.
D. The Escrow Agent shall cause title to the Demised Premises to be searched by the title company, and if and when the title company will issue the above-required evidence of title and escrow agent has received all funds and documents to be deposited hereunder, escrow agent shall cause the deed to be filed for record and the funds to be disbursed.
E. Full and exclusive possession of the Demised Premises shall be delivered by Lessor at Closing.
F. The Lessor shall pay property taxes and keep them in good standing until Lessee's procurement of Option.
G. This lease agreement and its Option to purchase shall be assignable/assumable by the sole permission of Lessor.
H. The title company or bank or landing institution designated by Lessee shall serve as escrow agent for this transaction. This agreement shall serve as escrow instructions, subject to the escrow agent's standard conditions of acceptance to the extent not contrary to any of the terms hereof.

{¶ 40} CHKRS asserts that it "exercised the option to purchase 6310 Riverside Dr. from Friedman on March 7, 2016." (CHKRS's Brief at 13.) However, at the March 4, 2016 status conference, CHKRS stipulated to the following fact: "CHKRS has not exercised the option to purchase." (Mar. 9, 2016 Entry at 2.)

{¶ 41} "A stipulation, once entered into, filed and accepted by the court, is binding upon the parties and is a fact deemed adjudicated for purposes of determining the remaining issues in the case." Whitehall ex rel. Fennessy v. Bambi Motel , 131 Ohio App.3d 734, 742, 723 N.E.2d 633 (10th Dist.1998), citing Horner v. Whitta , 3d Dist. No. 13-93-33, 1994 WL 114881 (Mar. 16, 1994). See also Augaitis v. Reichard , 2d Dist. No. 13693, 1993 WL 239579 (June 28, 1993) (noting that "[a] stipulation of facts eliminates the need for proof of the truth of the statement"). "A party who has agreed to a stipulation cannot unilaterally retract or withdraw from it." Bambi Motel at 742, 723 N.E.2d 633. A party may only withdraw from a stipulation with the "consent of the other party," or "by leave of court upon good cause." DeStephen v. Allstate Ins. Co. , 10th Dist. No. 01AP-1071, 2002 WL 757811 (Apr. 30, 2002) (observing that, as "[n]o where in the record is there any indication that appellants attempted to withdraw or retract their stipulation," the appellants were "bound by their stipulation").

{¶ 42} There is nothing in the record demonstrating that CHKRS sought leave of court or the consent of the parties to permit CHKRS to withdraw or retract its stipulation of fact. Accordingly, CHKRS did not have the authority to unilaterally retract the stipulation, and CHKRS was therefor bound by its stipulation. Thus, the fact that CHKRS had not exercised the option to purchase was a fact deemed adjudicated for purposes of the present action.

{¶ 43} Moreover, even if we were to ignore the stipulation, CHKRS never procured on the purchase option. CHKRS contends that based solely on its March 7, 2016 e-mail it both "exercised its option to purchase the property and has procured on the option to purchase." (CHKRS's Brief at 22.) However, the lease plainly expresses that exercising the option and procuring on the purchase option were different events. See Andover Village Retirement Community v. Cole , 11th Dist. No. 2013-A-0057, 2014-Ohio-4983, 2014 WL 5802674, ¶ 15 (noting that "[g]enerally in interpreting a statute or a contract, we presume that the use of different words indicates an intention that the words possess different meanings").

{¶ 44} To procure means "[t]o obtain (something), esp. by special effort or means," and to "achieve or bring about (a result)." "Procurement" means that "act of getting or obtaining something or of bringing something about." Black's Law Dictionary 1401 (10th Ed.2014). To "exercise" means to "implement the terms of; to execute." Black's at 693.

{¶ 45} "An option is an agreement to keep an offer open for a specified time; it limits the customary power of an offeror to revoke his offer prior to its acceptance." Ritchie v. Cordray , 10 Ohio App.3d 213, 461 N.E.2d 325 (10th Dist.1983), paragraph one of the syllabus. A real estate option is not itself "a contract to buy and sell the property, but only a contract whereby the seller agrees to leave his offer to sell open for a time-certain. Confusion often arises since the option is combined with the main offer to sell and its attendant detailed terms." Id. at 215, 461 N.E.2d 325. Thus, while an option "is already a binding complete contract to leave the offer open," the main offer contained in the option "does not become a contract to buy and sell unless and until its terms are accepted." Id.

{¶ 46} The option specified that CHKRS could purchase the property at any time during the lease term "with a 30 day prior notice to lessor," and that the documents and funds pertaining to the purchase had to be deposited in escrow "in time to permit the Closing to occur on a date which is not later than thirty (30) days after the Option is exercised." (Lease at ¶ 30(A) and (B).) Thus, to exercise the option under the lease, CHKRS had to notify Friedman that CHKRS intended to implement the terms of the purchase option over the 30-day period following such notice.

{¶ 47} In contrast, the lease uses the terms "procure" and "procurement" to refer to the event of CHKRS obtaining the property pursuant to the purchase option. CHKRS had to pay the balance of the purchase price to Friedman "at time of procurement," and Friedman was to continue to pay the property taxes "until Lessee's procurement of Option." (Lease at ¶ 30(A) and (F).) Thus, to have "procured on the purchase option" pursuant to ¶ 31 of the lease, CHKRS had to obtain the property pursuant to the purchase option. The purchase option in ¶ 30 detailed the specific steps CHKRS had to take to procure the property through the option.

{¶ 48} The March 7, 2016 e-mail was merely CHKRS's notice to Friedman that CHKRS intended to implement the terms of the purchase option over the following 30-days. However, after sending the e-mail, CHKRS took no steps to implement the terms of the purchase option. The option obligated CHKRS to initially designate the institution that would "serve as escrow agent for this transaction," and to then deposit the $179,500 balance of the purchase price with the escrow agent in time to permit a closing to occur within 30 days of March 7, 2016. (Lease at ¶ 30(H).) There is nothing in the record to demonstrate that CHKRS attempted to comply with these obligations. See Ritchie at 216, 461 N.E.2d 325 (holding that, because the plaintiff "never tendered payment to defendants" pursuant to the option, the "defendants were under no obligation to convey title to a buyer who, even though pressed to close the sale, had given no indication that he could or would pay for the property").

{¶ 49} Accordingly, CHKRS did not procure on the purchase option. As such, pursuant to ¶ 31 of the lease, CHKRS was not eligible to receive money from Dublin.

{¶ 50} Generally, a tenant does have "a property right in the leasehold and, in the absence of an agreement to the contrary, is entitled to compensation if it is appropriated by eminent domain." Carrol Weir Funeral Home v. Miller , 2 Ohio St.2d 189, 191, 207 N.E.2d 747 (1965). However, "there is nothing to prevent the parties from changing their respective rights by agreement." Id. Thus, it is "the agreement of the parties that controls whether the lessee has a compensable property interest in the appropriated property." Cincinnati v. Spangenberg , 35 Ohio App.2d 168, 171, 300 N.E.2d 457 (1st Dist.1973). See also ISHA, Inc. v. Risser , 3d Dist. No. 1-12-47, 2013-Ohio-2149, 2013 WL 2316248, ¶ 42 ; State Rd. Assocs. v. Cuyahoga Falls , 9th Dist. No. 24362, 2009-Ohio-2859, 2009 WL 1682122, ¶ 19. Through ¶ 31 of the lease, Friedman and CHKRS provided that CHKRS, as a lessee, would not have a compensable interest if the property was appropriated by Dublin or Ohio Department of Transportation.

{¶ 51} CHKRS lastly contends that the court erred by "allowing Friedman" to "settle the eminent domain case and voluntarily convey the easements sought to be appropriated," as Friedman had "promised to transfer all of the property to CHKRS." (CHKRS's Brief at 19.) In an eminent domain action, however, "the conveyance [is] not a voluntary one"; as the property owner has "no choice except to convey" and "rely upon the constitutional guaranty that full compensation would be made." Cullen & Vaughn Co. v. Bender Co. , 122 Ohio St. 82, 93, 170 N.E. 633 (1930). Pursuant to the "doctrine of equitable conversion," the compensation "paid for the land taken by the exercise of the power of eminent domain in equity represents the land and is subject to all the rights of persons who had rights in the land." Id. at paragraph four of the syllabus.

{¶ 52} Based on the foregoing, CHKRS's first and second assignments of error are overruled.

{¶ 53} CHKRS's third assignment of error asserts the trial court erred in ruling that Dublin could exercise its quick-take authority to immediately enter the property for the purpose of constructing a shared-use path. See R.C. 4511.01(PPP) (defining a shared-use path as "a bikeway outside the traveled way and physically separated from motorized vehicular traffic by an open space or barrier").

{¶ 54} CHKRS, however, never sought an injunction to halt Dublin's construction on the property. See Branford Village Condominium Unit Owners' Assn. v. Upper Arlington , 12 Ohio App.3d 120, 121, 467 N.E.2d 542 (10th Dist.1983) (observing that, if a defendant cannot deny the agency's right to take the property in the appropriation action, "a separate injunction action may be brought to enjoin an abuse of municipal power"); Cleveland v. Brook Park , 103 Ohio App.3d 275, 280, 659 N.E.2d 342 (8th Dist.1995) (holding that the "Uniform Eminent Domain Act did not change Ohio law recognizing a separate action to enjoin appropriation proceedings"); Bd. of Edn. v. Holding Corp. of Ohio , 29 Ohio App.2d 114, 117, 278 N.E.2d 693 (10th Dist.1971) (noting that, before the enactment of R.C. Chapter 163, "the only issue that could be tried in an appropriation matter was the matter of compensation," as property owners had to "challenge necessity * * * by way of injunction").

{¶ 55} In Worthington v. Carskadon , 18 Ohio St.2d 222, 249 N.E.2d 38 (1969), the city of Worthington used the quick-take provisions to immediately enter the appellants' property to construct a drainage ditch. The Supreme Court of Ohio held that the " 'quick take' by the city, i.e. , an immediate entry and seizure of private property prior to any jury verdict, was illegal and unconstitutional." Id. at 223, 249 N.E.2d 38. The court noted that Ohio Constitution, Article I, Section 19"permits immediate entry in time of public exigency and for the purpose of public roads," while the case before it "involved only a drainage ditch." Id.

{¶ 56} However, the court further concluded that the "illegal seizure [was] a fait accompli , and the right of the city to do so is now moot. It now owns an easement and the illegality of its possession has ceased." Id. at 224, 249 N.E.2d 38. The court noted the "proper remedies for illegal entry upon one's property are criminal trespass and civil damages against the individuals entering, and injunction against the city and its agents." Id. See also Cassady at 104-05, 286 N.E.2d 318 (finding that, although the "Columbus 'quick take' ordinance [was] unconstitutional," this did not "necessitate a reversal of that judgment" as the plaintiffs "did not seek injunctive relief against the city," the sewer line was constructed, and the plaintiffs had accepted "the benefits of the 'quick take' " by withdrawing the funds Columbus deposited); Village of Octa at ¶ 43 (holding that the property owner's R.C. 163.09(B) hearing on remand would be "limited to a determination of whether * * * the amount taken was excessive," because, although the village did an improper quick-take of the property, the property owner "did not file for an injunction" and "the village ha[d] already constructed the newly relocated West Lancaster Road").

{¶ 57} Thus, as CHKRS did not seek an injunction, Dublin completed construction of the project. Moreover, Dublin now owns the easements on the property and has fully compensated Friedman for the easements. CHKRS's failure to procure on the purchase option precludes CHKRS from receiving money dispersed by Dublin. Thus, even if we were to find that Dublin erred in exercising the R.C. 163.06(B) quick-take authority, CHKRS is not eligible to receive damages from Dublin under R.C. 163.09(B)(2). Accordingly, there is no relief that we could grant to CHKRS from Dublin's quick-take of the property. We find no exceptions to the mootness doctrine applicable to this issue. See Rithy Properties v. Cheeseman , 2016-Ohio-1602, 63 N.E.3d 752, ¶ 20.

{¶ 58} Based on the foregoing, we find that our ruling on CHKRS's first two assignments of error renders its third assignment of error moot.

{¶ 59} CHKRS's fourth assignment of error asserts the trial court erred in denying CHKRS's motion for leave to amend its answer. Civ.R. 15(A) provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court shall freely give leave when justice so requires." A trial court's decision to grant or deny leave to amend a pleading is reviewed under an abuse of discretion standard. Farmers Prod. Credit Assn. of Ashland v. Johnson , 24 Ohio St.3d 69, 72, 493 N.E.2d 946 (1986).

{¶ 60} "Prejudice to an opposing party is the most critical factor to be considered in determining whether to grant leave to amend." Simmons v. Am. Pacific Ents., LLC , 164 Ohio App.3d 763, 2005-Ohio-6957, 843 N.E.2d 1271, ¶ 9 (10th Dist.), citing Frayer Seed, Inc. v. Century 21 Fertilizer & Farm Chemicals, Inc. , 51 Ohio App.3d 158, 165, 555 N.E.2d 654 (1988). Timeliness of the request is another factor to consider. Id. R.C. 163.22 obligates a trial court to advance appropriation proceedings "as a matter of immediate public interest and concern," and to hear such cases "at the earliest practicable moment."

{¶ 61} The trial court concluded that "CHKRS's proposed amended Answer would prejudice the other parties," as the "tendered amendment arrived late in the case, and could substantially broaden and complicate the case." The court noted that CHKRS's "legitimate legal rights in this land appropriation case were appropriately protected by its original Answer." (Decision at 6.) R.C. 163.22 obligated the court to hear the case at the earliest practicable moment, and the court concluded that granting CHKRS's late filed motion for leave would complicate and therefore delay the case. As such, we find no abuse of discretion in the court's denial of CHKRS's motion for leave to amend its answer.

{¶ 62} CHKRS's fourth assignment of error is overruled.

{¶ 63} On November 30, 2016, Dublin filed a motion to strike CHKRS's reply brief, asserting that CHKRS impermissibly raised new arguments in its reply brief. The purpose "of a reply brief is to afford the appellant an opportunity to respond to the appellee's brief, not to raise an issue for the first time." Hadden Co., L.P.A. v. Zweier , 10th Dist. No. 15AP-210, 2016-Ohio-2733, 2016 WL 1704308, ¶ 15. See also App.R. 16(C). "A party may not advance new arguments in its reply brief." Clifton Care Ctr. v. Ohio Dept. of Job & Family Servs. , 2013-Ohio-2742, 994 N.E.2d 879, ¶ 13.

{¶ 64} Dublin asserts that CHKRS's reply brief raised new arguments concerning "multiple procedural issues" Dublin failed to comply with before filing its complaint for appropriation. (Dublin's Motion to Strike at 3.) CHKRS asserts that it did raise the procedural issues in its initial brief. In light of our foregoing analysis of the assignments of error, however, the arguments in CHKRS's reply brief regarding Dublin's alleged failure to comply with certain pre-complaint procedures are not dispositive of the case. Because the arguments in CHKRS's reply brief "are not dispositive," they need "not be formally stricken."

Black v. Columbus Sports Network, LLC , 10th Dist. No. 13AP-1025, 2014-Ohio-3607, 2014 WL 4100741, ¶ 12. Dublin's motion to strike is denied.

{¶ 65} Based on the foregoing, we overrule CHKRS's first, second, and fourth assignments of error, and render its third assignment of error moot. Dublin's motion to dismiss the appeal, and motion to strike CHKRS's reply brief are denied. The judgment of the Franklin County Court of Common Pleas is affirmed.

Motions denied; judgment affirmed.

BRUNNER and HORTON, JJ., concur.

      CHKRS did not file a copy of the March 4, 2016 hearing transcript with this court.

      At oral argument before this court, CHKRS's attorney stated that CHKRS "did provide an escrow and title company." However, there is nothing in the record to support counsel's statement. See App.R. 9(A)(1). Regardless, counsel never asserted that CHKRS attempted to deposit the balance of the purchase price in escrow.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Victor R. RODRIGUEZ, Defendant-Appellant.
    No. 17AP-78
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 19, 2017
    On brief: Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for appellee.
    On brief: Jeremy A. Roth, for appellant.
    DECISION
   BROWN, J.

{¶ 1} This is an appeal by defendant-appellant, Victor R. Rodriguez, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following his entry of an " Alford " plea of guilty to attempted gross sexual imposition.

{¶ 2} On April 28, 2015, appellant was indicted on one count of rape, in violation of R.C. 2907.02, and one count of sexual battery, in violation of R.C. 2907.03. Appellant entered a plea of not guilty, and the matter was set for trial before a jury.

{¶ 3} On November 29, 2016, the trial court conducted voir dire proceedings. On November 30, 2016, appellant appeared before the trial court and entered an Alford plea of guilty to the stipulated lesser-included offense to count one, attempted gross sexual imposition, in violation of R.C 2907.05 and 2923.02.

{¶ 4} During the plea proceedings, the trial court inquired of defense counsel as to the "reasons for your client's Alford Plea." (Tr. Vol. I at 7.) In response, defense counsel stated:

Your Honor. * * * We thought that there were some issues that were very triable in this case. I pointed out to [appellant] yesterday after voir dire was called up that I believe that there were several members of the jury who had been victims of potential sexual abuse, specifically, I want to say Juror No. 11 [and] Juror No. 18, * * * and then there was a juror that would have been one of the first people brought up had we excused those people who had sexual assault in their past. Those things gave me pause wherein the * * * Court was not going to get rid of them for cause then we would have to use three of our preemptory challenges on just those individuals. I explained those things to him, told him what the potential risks were if he were to potentially lose at trial. And once his offer was made known to me, I relayed it to him and told him although there are some downsides for him, specifically, the 15-year reporting requirement, that it does not carry mandatory prison time. There's a presumption of community control. And all of those things he should consider seriously. He spoke with his father this morning. And after those discussions, he told me that he would like to resolve the case in this fashion.

(Tr. Vol. I at 7-8.)

{¶ 5} The trial court then engaged in a plea colloquy with appellant. During the colloquy, the court addressed the issue of post-release control, stating in part as follows:

What you also need to understand is that if I were to place you in prison for these offenses, once you're released from prison, you would be subject to what is called post-release control. What that means is the Adult Parole Authority would have supervision over you and they could place certain restrictions on what you can and cannot do. If you would violate the terms of your post-release control, the Adult Parole Authority could actually send you back to prison for a second time even though you would have done all the initial prison term in this case. Your period of supervision under post-release control would be for a maximum of three years. If you were to violate the terms of your post-release control and if you were to be sent back to prison for a second time, that second sentence could be for up to half as long as your initial prison term.

(Tr. Vol. I at 10.)

{¶ 6} During the plea proceedings, the prosecutor gave the following recitation of the facts giving rise to the indictment:

This case happened on August 30, 2014. [A.C.] is the victim in this case. She was celebrating her best friend [D.T.'s] birthday. She went over to [D.T.'s] house. And they began drinking. They then picked up a couple of other friends to go to a club. * * * The defendant is the cousin to [D.T.] And he went with them as well to the club.
There was some sort of argument at the club between the victim in the case and the defendant. And some of the witnesses would say that the defendant was hitting on the victim at the club.
After they left the club, at that point, basically, the victim doesn't remember anything from that point forward until the next morning. She just has a complete blank memory. It's unclear whether someone put something in her drink or she just drank too much. But either way, she doesn't remember anything.
But what we know from the other witnesses * * * is that they go back to [a friend's] house. [A.C.] is very sick throwing up, so they put her in a bed at [the friend's] house. They decide that they're going to go to an after-hours party, but the defendant stays behind. [D.T.] feels comfortable with that because the defendant is her cousin. He's downstairs on the couch. And [A.C.] is upstairs on the bed, basically, unconscious at this point. When the girls come home from the after-hours club, they find the defendant in the bed with [A.C.] She's still unconscious at this point.
She calls her boyfriend to pick her up. She just feels that something is not right. She goes to the hospital and has a rape kit done. They do several swabs which are sent to the lab for DNA testing. There were skin swabs taken from her inner thigh that matched the DNA of the defendant. Those were actually semen swabs. There's an anal swab that matches in terms of YSTR, or male DNA, that is consistent with the Defendant; although, that statistic is much lower than the skin swabs that were done, which is hits at every Loci for the DNA results.
The Defendant is interviewed and indicates to the detective that he did not have any sexual relations with the victim.

(Tr. Vol. I at 14-16.)

{¶ 7} The trial court, upon determining that appellant's plea was voluntary, accepted the guilty plea and found him guilty of attempted gross sexual imposition. The trial court ordered a pre-sentence investigation and set a sentencing hearing date.

{¶ 8} At the close of the plea hearing, the trial court addressed the fact there had been a "physical altercation" between appellant and "the boyfriend" of the complainant outside the courtroom that morning. A deputy sheriff indicated that she had heard yelling in the hallway and that, upon further investigation, observed the "boyfriend * * * standing outside the second set of doors," while appellant "was standing on this side of the first set of doors out there." The deputy sheriff further related: "They continued to yell. And then [appellant] walked up to him, took both hands and pushed on his chest and pushed him backwards." (Tr. Vol. I at 18.) Following that discussion, the trial court revoked appellant's bond.

{¶ 9} During a subsequent bond hearing, held January 3, 2017, the prosecutor noted that "[t]here has been a case filed in municipal court, * * * Case No. 2016-CRB-26969, for assault charges." The trial court indicated it was "not going to change the bond in this matter." (Tr. Vol. II at 4.)

{¶ 10} On January 13, 2017, the trial court conducted a sentencing hearing. During the hearing, the trial court addressed appellant and stated in part:

Mr. Rodriguez, I've considered the principles and purposes of sentencing in your case, as well as all the relevant sentencing factors. As this is a sex offense, there is no presumption one way or the other with respect to probation or prison. While I do note that this is your first felony offense, you do have multiple misdemeanor offenses. And you've been given the opportunity for probation on those. You're currently facing revocation in two of those cases from 2015. While you were on reporting bond in this case, you missed appointments and you picked up two new charges.
This is a serious offense. The details of the case are very concerning. It has had a traumatic impact on the victim in this case. And I note again that despite the fact that you had this case pending and you were on a reporting bond, you incurred charges in two new cases.
It is the Court's opinion that community control would undermine the severity of this case and your actions to date. So I'm going to sentence you to a term of incarceration in ODRC. It is going to be for a period of 11 months. I have a finding of 58 days of jail-time credit. Upon your release from prison, you will be subject to post-release control. It is for a mandatory five years. You are going to be required to register as a Tier 1 sex offender. That is going to be for a period of 15 years. We talked about the terms of that when you pled in this case. Also you have signed the registration form in this matter with respect to those terms. I'm going to waive any fine. I'm going to order that you pay the court costs, but I am going to defer those while you're incarcerated.

(Tr. Vol. III at 6-7.)

{¶ 11} The trial court sentenced appellant by judgment entry filed January 13, 2017, imposing a sentence of 11 months incarceration. The entry stated that appellant "was notified of post-release control" at the time of the plea, and the sentencing entry noted "a period of post-release control of 5 years."

{¶ 12} On appeal, appellant sets forth the following two assignments of error for this court's review:

[I.] The trial court erred when it accepted Appellant's guilty plea as it was not knowing and voluntary due to misstatements of law in violation of Ohio Criminal Rule 11 and of Ohio and the United States Constitutions.
[II.] The trial court erred when it stated that there was no presumption of community control for the charge of a fifth degree felony, and sentenced Appellant to an 11 month term of incarceration.

{¶ 13} Under the first assignment of error, appellant contends that his plea was not made knowingly and voluntarily due to misstatements of law made by the trial court during the plea hearing. Specifically, appellant argues the trial court informed him he would be subject to post-release control for a "maximum of three years" when, in fact, he was subject to a mandatory five-year period of post-release control supervision. Appellant further notes the trial court, during the subsequent sentencing hearing, imposed the correct statutory period of post-release control (i.e., five years) as part of his sentence.

{¶ 14} Crim.R. 11(C)(2) states as follows:

In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

{¶ 15} In deciding whether to accept a guilty plea, a trial court "must determine whether the defendant knowingly, intelligently, and voluntarily entered the plea." State v. Eckler, 4th Dist. No. 09CA878, 2009-Ohio-7064, 2009 WL 5199324, ¶ 48. In reviewing a trial court's acceptance of a guilty plea, a reviewing court " 'examines the totality of the circumstances through a de novo review of the record to ensure that the trial court complied with constitutional and procedural safeguards.' " Id. , quoting State v. Jodziewicz , 4th Dist. No. 98CA667, 1999 WL 266679 (Apr. 16, 1999). Further, "[a]n appellate court's review of a Crim.R. 11(C)(2) colloquy is contingent on whether the defendant complains of either a failure to inform him of a constitutional right or a failure to inform him of a non-constitutional right." State v. Gaspareno, 2016-Ohio-990, 61 N.E.3d 550, ¶ 50. While a trial court is required to strictly comply with Crim.R. 11(C)(2) with respect to constitutional rights, "if the appeal concerns non-constitutional rights, then we review the colloquy to ensure that the trial court substantially complied with Crim.R. 11(C)(2)." (Emphasis sic.) Id.

{¶ 16} Thus, in instances where a trial judge has "imperfectly explained nonconstitutional rights such as the right to be informed of the maximum possible penalty and the effect of the plea, a substantial-compliance rule applies." State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31. Under this rule, "a slight deviation from the text of the rule is permissible," and "so long as the totality of the circumstances indicates that 'the defendant subjectively understands the implications of his plea and the rights he is waiving,' the plea may be upheld." Id., quoting State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

{¶ 17} Further, "[w]hen the trial judge does not substantially comply with Crim.R. 11 in regard to a nonconstitutional right, reviewing courts must determine whether the trial court partially complied or failed to comply with the rule." (Emphasis sic.) Id. at ¶ 32. If a trial judge "partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant demonstrates prejudicial effect." Id. The test for prejudicial effect "is 'whether the plea would have otherwise been made.' " Id., quoting Nero at 108, 564 N.E.2d 474.

{¶ 18} In response to appellant's claim that his plea was not knowingly and voluntarily entered, plaintiff-appellee, State of Ohio, argues the record indicates the trial court partially complied with Crim.R. 11, and that appellant cannot demonstrate the necessary prejudice to warrant reversal. In support, the state relies in part on State v. Lang, 8th Dist. No. 92099, 2010-Ohio-433, 2010 WL 457140, a case in which the reviewing court considered the effect of a trial court's failure to properly advise the appellant of post-release control (i.e., by misstating the applicable term of post-release control).

{¶ 19} In Lang, the trial court informed the appellant during the plea colloquy that, upon release, he "may be subject to what we call post release control, which is like parole for a period of up to three years." (Emphasis omitted.) Id. at ¶ 9. Under the facts in Lang, post-release control "was mandatory, not discretionary, and the term was five years." Id. at ¶ 10. On appeal, the appellant argued that his plea was not knowingly and voluntarily entered due to the court's failure to accurately advise him concerning post-release control.

{¶ 20} The reviewing court observed there was "no dispute the trial court was mistaken in advising [the appellant] about postrelease control." Id. Further, the court determined that the trial court failed to substantially comply in failing to advise the appellant that he would be subject to five years of mandatory post-release control instead of three years. Nonetheless, noting that the trial court "partially complied" in advising the appellant of his rights, the court in Lang affirmed the trial court's acceptance of the guilty plea based on lack of prejudice to the appellant. Id. at ¶ 12. Specifically, in reviewing the record, the appellate court found "there was no discussion, question, or comment indicating that postrelease control was of particular concern or import to [the appellant]." Id. at ¶ 14. Rather, the court noted, the appellant was "apprised that if he went to trial and was found guilty on all counts, he could receive a potential sentence in excess of 30 years." Id. Thus, the court found that the "reduction in sentence that the plea offered may be viewed as the probable impetus for entering into the plea." Id.

{¶ 21} In the present case, the record indicates the trial court discussed post-release control with appellant but, similar to the facts in Lang , the court failed to inform him during the plea colloquy that he would be subject to a mandatory five-year term of post-release control. Thus, as in Lang, the record indicates the trial court partially complied with the non-constitutional requirements of Crim.R. 11. The dispositive issue, therefore, is whether appellant has demonstrated prejudice, i.e., whether the plea would have otherwise been made. Clark at ¶ 32.

{¶ 22} Based on a review of the record in this case, we conclude appellant has not demonstrated prejudice as a result of the trial court's partial compliance. As indicated under the facts, prior to entering his guilty plea, counsel for appellant related the basis for appellant's decision to withdraw his not guilty plea and to enter an Alford plea of guilty. Specifically, defense counsel noted he had explained to appellant, following voir dire, that there were "several members of the jury who had been victims of potential sexual abuse," including prospective "Juror No. 11," prospective "Juror No. 18," as well as at least one other individual "who had sexual assault in their past." Defense counsel noted the voir dire proceedings had given him "pause" and concern that the trial court "was not going to get rid of them for cause," which would have required counsel to use "three of our peremptory challenges on just those individuals." Defense counsel further noted that he had explained "those things" to appellant, and the "potential risks * * * if he were to potentially lose at trial." (Tr. Vol. I at 7.) Following "those discussions," appellant informed counsel "he would like to resolve the case in this fashion." (Tr. Vol. I at 7-8.)

{¶ 23} Here, there is nothing in the record to suggest appellant's decision to change his plea was motivated by the fact he believed he would be subject to a three-year period of post-release control as opposed to a mandatory five-year period. Rather, as indicated above, appellant's counsel informed the trial court that appellant's decision to enter the Alford plea of guilty was based on concern that counsel would be required to use three peremptory challenges solely to strike prospective jurors who had revealed, during voir dire, past experiences with sexual abuse. Under such circumstances, appellant has not demonstrated prejudice as a result of the trial court's partial compliance with Crim.R. 11. Lang at ¶ 14. See also State v. Mason, 8th Dist. No. 104533, 2017-Ohio-7065, 2017 WL 3311032, ¶ 44 (quoting with approval Lang and finding that, where there was no evidence in the record that "period of postrelease control 'was of particular concern or import to' " the appellant, trial court's misstatement that post-release term was for three years instead of five did not require court to vacate plea where no showing of prejudice); State v. McMahon, 12th Dist. No. CA2009-06-008, 2010-Ohio-2055, 2010 WL 1851073, ¶ 27 (appellant failed to show he was prejudiced by "misinformation he received in regard to his postrelease control" where no indication post-release control was of particular concern in entering plea).

{¶ 24} Finally, as noted by the state, prior to the plea colloquy, appellant signed a plea form that contained the correct information regarding the term of post-release control (i.e., the form contains a check in a box indicating "Five Years-Mandatory" post-release control), and appellant acknowledged reviewing this form with counsel prior to entering the plea. Based on the record presented, appellant cannot establish prejudice necessary to invalidate his plea; rather, the trial court properly determined appellant knowingly and voluntarily entered his guilty plea. Accordingly, appellant's first assignment of error is not well-taken and is overruled.

{¶ 25} Under the second assignment of error, appellant argues the trial court erred in stating there was no presumption of community control and in sentencing him to an 11-month term of incarceration. Appellant cites the trial court's statement during the sentencing hearing that "there is no presumption one way or the other with respect to probation or prison." (Tr. Vol. III at 6.) According to appellant, there is a presumption of community control applicable to his convictions, but the presumption may be overridden by the factors set forth in R.C. 2929.13(B).

{¶ 26} In response, the state argues that the presumption in favor of community control for a fourth or fifth-degree felony was not applicable in this case because appellant was convicted of a sex offense under R.C. Chapter 2907. We agree.

{¶ 27} R.C. 2929.13(B)(1)(a) states in part: "Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense, the court shall sentence the offender to a community control sanction of at least one year's duration." Thus, R.C. 2929.13(B)(1)(a)"creates a presumption in favor of community control sanctions for crimes meeting certain criteria." State v. Coleman, 8th Dist. No. 98557, 2013-Ohio-1658, 2013 WL 1791376, ¶ 5, citing State v. Lyles, 8th Dist. No. 97524, 2012-Ohio-3362, 2012 WL 3040115, ¶ 10. However, "[t]he presumption of community control is subject to a number of exceptions contained in R.C. 2929.13(B)(1)(b)." State v. Hughes, 12th Dist. No. CA2013-05-081, 2014-Ohio-1320, 2014 WL 1356671, ¶ 12.

{¶ 28} One of those exceptions is set forth under R.C. 2929.13(B)(1)(b)(v), which states in part: "The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense if * * * [t]he offense is a sex offense that is a fourth or fifth degree felony violation of any provision of Chapter 2907. of the Revised Code."

{¶ 29} In the present case, appellant was convicted of a fifth-degree sex offense, i.e., attempted gross sexual imposition, a violation of R.C. Chapter 2907; specifically, R.C. 2907.05. As such, the trial court had discretion to impose a prison term. See State v. Grey, 7th Dist. No. 15 CO 0011, 2016-Ohio-3249, 2016 WL 3078909, ¶ 15 (presumption of community control removed where appellant was convicted of two fifth-degree sex-offense felonies in violation of R.C. 2907.323 and 2907.07 ; "it was within the trial court's discretion to sentence him to a prison term on each of these offenses"). See also State v. Myers, 6th Dist. No. OT-14-010, 2015-Ohio-916, 2015 WL 1125023, ¶ 7 (where appellant was "convicted of a sex offense under Chapter 2907.322, * * * it was within the court's discretion to order a period of incarceration").

{¶ 30} Appellant also contends the trial court did not properly consider the principles and purposes of sentencing in imposing an 11-month sentence. We disagree.

{¶ 31} R.C. 2953.08(G)(2) states:

The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.

{¶ 32} In interpreting the above statutory provision, the Supreme Court of Ohio has held that "appellate courts may not apply the abuse-of-discretion standard in sentencing-term challenges." State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10. Rather, "an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." Id. at ¶ 1. Further, "[a]n appellate court will not find a sentence clearly and convincingly contrary to law where the trial court considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within the permissible statutory range." State v. Ahlers, 12th Dist. No. CA2015-06-100, 2016-Ohio-2890, 2016 WL 2621510, ¶ 8.

{¶ 33} In the present case, appellant's 11-month sentence was within the statutory range for a fifth-degree felony. The trial court's entry of conviction states that the court considered the purposes and principles of sentencing set forth in R.C. 2929.11 and the factors set forth in R.C. 2929.12, and further states the court weighed the factors set forth under R.C. 2929.13 and 2929.14. This court has previously held that "[s]uch language in the judgment entry belies a claim that the trial court failed to consider the purposes and principles of sentencing." State v. Ganguly, 2015-Ohio-845, 29 N.E.3d 375, ¶ 45. Further, during the sentencing hearing, the trial court stated it had "considered the principles and purposes of sentencing in your case, as well as all the relevant sentencing factors." Finally, in making its decision to impose an 11-month sentence, the trial court discussed the "serious" nature of the offense, and the "traumatic impact" it had on the victim. (Tr. Vol. III at 6.) The court also noted that "despite the fact that [appellant] had this case pending and [was] on a reporting bond, [he] incurred charges in two new cases." (Tr. Vol. III at 7.)

{¶ 34} On review, we find appellant's sentence is not clearly and convincingly contrary to law, and that the record supports appellant's sentence. Accordingly, appellant's second assignment of error is overruled.

{¶ 35} Based on the foregoing, appellant's two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.

Judgment affirmed.

DORRIAN, J., concurs.

HORTON, J., concurs in judgment only.

      North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).


author: Myers, Judge.

text:
    CITY OF MT. HEALTHY, Plaintiff-Appellee, v. FRATERNAL ORDER OF POLICE, OHIO LABOR COUNCIL, INC., Defendant-Appellant.
    NO. C-170072
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: December 20, 2017
    Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, Scott A. Sollmann and Jonathan T. Deters, Mason, for Plaintiff-Appellee,
    Tonya M. Sapp and Gwen Callender, Columbus, for Defendant-Appellant.
    OPINION.
   Myers, Judge.

{¶ 1} The Fraternal Order of Police, Ohio Labor Council, Inc., ("FOP") has appealed from the trial court's entry vacating an arbitration award that had been entered in its favor against the city of Mt. Healthy.

{¶ 2} On February 16, 2014, Mt. Healthy hired Antwan Sparks as a part-time police officer. Pursuant to the collective bargaining agreement ("CBA") entered into between the FOP on behalf of part-time patrolmen and Mt. Healthy, all newly hired part-time employees were subject to a one-year probationary period.

{¶ 3} On June 30, 2014, Sparks was injured in the line of duty and was assigned to light duty. He returned to duty on August 2, 2014, but was again assigned to light duty on September 22, 2014, where he remained until April 22, 2015. Because of the amount of time that Sparks had spent on light duty, Mt. Healthy Police Chief Vincent Demasi and City Manager Bill Kocher determined that they could not adequately evaluate Sparks's performance and that his probationary period needed to be extended. On January 13, 2015, Kocher spoke with the FOP staff representative regarding extension of Sparks's probationary period. The union representative agreed to the extension. That same day, Demasi delivered a letter to Sparks notifying him about the extension of the probationary period. Because he had not returned to duty, Mt. Healthy did not give him an end date to his probationary period.

{¶ 4} Approximately four months later, on May 14, 2015, Demasi gave Sparks a second letter stating that his probationary period was extended until December 4, 2015. After receiving this letter, Sparks filed a grievance against Mt. Healthy, which proceeded to arbitration. On behalf of Sparks, the FOP argued that the extension of Sparks's probationary period violated the terms of the CBA. The arbitrator did not reach the merits of this argument, but rather sustained Sparks's grievance after finding that the FOP and Mt. Healthy could not extend the probationary period without obtaining consent from Sparks. After concluding that Sparks had successfully completed his probationary period-one year without any extension-the arbitrator ordered that Sparks be returned to duty as a part-time officer.

{¶ 5} Mt. Healthy filed a motion to vacate the arbitrator's award, arguing that the arbitrator had exceeded his powers and had deviated from the essence of the CBA. The FOP filed a memorandum in opposition and requested that the award be confirmed. The trial court granted Mt. Healthy's motion to vacate.

{¶ 6} The FOP has appealed the trial court's entry, arguing in four assignments of error that the trial court erred by: (1) determining that the arbitrator exceeded his powers; (2) determining that the arbitrator imperfectly performed his duties; (3) misapplying the test for overturning an arbitrator's award; and (4) failing to confirm the arbitration award. Because these arguments are related, we address them together.

{¶ 7} Arbitrators have great latitude in issuing a decision, as long as they act within the scope of the contract. Cedar Fair, L.P. v. Falfas , 140 Ohio St.3d 447, 2014-Ohio-3943, 19 N.E.3d 893, ¶ 6. Pursuant to R.C. 2711.10, a trial court may vacate an arbitrator's award only under very limited circumstances, including when the arbitrator has exceeded her or his power. R.C. 2711.10(D). Arbitrators exceed their power when they go beyond their contractual authority to craft a remedy under the law. Falfas at ¶ 7. When an award "draws its essence" from the parties' contract, an arbitrator has acted within her or his authority to craft an award.

Id. But an arbitrator's award departs from the essence of the contract when "(1) the award conflicts with the express terms of the agreement, and/or (2) the award is without rational support or cannot be rationally derived from the terms of the agreement." Id. , quoting Ohio Office of Collective Bargaining v. Ohio Civ. Serv. Emps. Assn., Local 11, AFSCME, AFL-CIO , 59 Ohio St.3d 177, 572 N.E.2d 71 (1991), syllabus.

{¶ 8} Following our review of the record, we hold that the arbitrator's award, based on his finding that the FOP representative and Mt. Healthy could not extend Sparks's probationary period without his personal consent, did not draw its essence from the terms of the CBA. Section 13.7 of the CBA provides that the arbitrator could not make any decision "[c]ontrary to, or inconsistent with, or modifying or varying in any way the terms of this Agreement or applicable laws." Section 1.1 of the CBA provides that the purpose of the agreement is for Mt. Healthy and the FOP, on behalf of the part-time patrolmen, to set forth "the full and complete understandings and agreements between the parties governing wages, hours, terms and conditions of employment for those employees included in the bargaining unit." And section 3.1 of the CBA provides that "[t]he Employer recognizes the Fraternal Order of Police, Ohio Labor Council, Inc. as the sole and exclusive representative for all part-time employees in the bargaining unit."

{¶ 9} The arbitrator's conclusion that the probationary period could not be extended without Sparks's personal consent conflicted with both applicable law and sections 1.1 and 3.1 of the CBA. Under the terms of the CBA, the FOP had sole and exclusive authority to represent all part-time patrolmen in matters concerning the terms and conditions of employment. This included the authority to agree to an extension of the probationary period. The FOP was granted the authority to act on behalf of its members.

{¶ 10} Moreover, the arbitrator's decision was contrary to law. Under agency principles, the union representative, as the "exclusive representative for all part-time employees," acted as Sparks's agent and had the authority to agree to an extension of the probationary period without Sparks's personal consent. See Damon's Missouri, Inc. v. Davis , 63 Ohio St.3d 605, 608, 590 N.E.2d 254 (1992) ("an agent, acting within the scope of his actual authority, expressly or impliedly conferred, can bind the principal").

{¶ 11} Because the arbitrator exceeded his power by fashioning an award that did not draw its essence from the CBA, the trial court did not err in granting Mt. Healthy's motion to vacate the arbitrator's award or in failing to grant the FOP's motion to confirm. The FOP's assignments of error are overruled, and the judgment of the trial court is affirmed.

Judgment affirmed.

Miller, J., concurs separately.

Zayas, P.J., concurs in judgment only.

Miller, J., concurring separately.

{¶ 12} I fully join the well-reasoned majority opinion. I write to state that when a union is the exclusive bargaining agent for a group of employees, it is empowered to make decisions that adversely impact individual employees. "The policy therefore extinguishes the individual employee's power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees. * * * The employee may disagree with many of the union decisions but is bound by them." N.L.R.B. v. Allis-Chalmers Mfg. Co. , 388 U.S. 175, 180, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967).

{¶ 13} Here, the FOP was faced with a choice of agreeing to extend Sparks's probation period or seeing him terminated. It chose the former, keeping him employed. This decision bound Sparks, and is well within " 'the wide latitude that negotiators need for the effective performance of their bargaining responsibilities.' " Linton v. United Parcel Serv. , 15 F.3d 1365, 1369-1370 (6th Cir.1994), quoting Air Line Pilots Assn. v. O'Neill , 499 U.S. 65, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). See Vaca v. Sipes , 386 U.S. 171, 186-187, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) ("The court is free to determine whether the employee is barred by the actions of his union representative * * *."). Accordingly, Sparks's grievance is barred.

Zayas, P.J., concurring in judgment only.

{¶ 14} I agree that the trial court's judgment should be affirmed, but I reach this result for a different reason. I note that our standard of review is de novo. H.C. Nutting Co. v. Midland Atlantic Dev. Co., L.L.C. , 2013-Ohio-5511, 5 N.E.3d 125, ¶ 10 (1st Dist.).

{¶ 15} Sparks was appointed as a voluntary auxiliary part-time police officer on January 13, 2014. On February 16, 2014, he was hired as a part-time police officer with the City of Mt. Healthy. Every part-time officer that joins the Mt. Healthy Police Department is subject to a probationary period of one year. While under the one-year probationary period, a police officer can be terminated at any time and has no right to appeal the termination under the CBA. Accordingly, the extension of Sparks's probationary period, in effect also extended the period of time that he could be terminated without any right to appeal the termination under the CBA.

{¶ 16} Before turning to the issues at hand, it must first be recognized "that collective bargaining agreements are not like other agreements." N.L.R.B. v. Bildisco and Bildisco , 465 U.S. 513, 553, 104 S.Ct. 1188, 79 L.E.2d 482 (1984) (Brennan, J., concurring in part and dissenting in part).

The collective bargaining agreement * * * is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. * * * When most parties enter into contractual relationship they do so voluntarily, in the sense that there is no real compulsion to deal with one another, as opposed to dealing with other parties. This is not true of the labor agreement. The choice is generally not between entering or refusing to enter into a relationship, for that in all probability pre-exists the negotiations. Rather it is between having that relationship governed by an agreed-upon rule of law or leaving each and every matter subject to a temporary resolution dependent solely upon the relative strength, at any given moment, of the contending forces.

(Emphasis added.) United Steelworkers of Am. v. Warrior & Gulf Navigation Co. , 363 U.S. 574, 578-580, 80 S.Ct. 1347, 4 L.E.2d 1409 (1960). Therefore, the representing union and the employer come to the table to bargain and the resulting agreement encompasses all of the terms the parties are to be governed by.

{¶ 17} These principles are embodied in section 1.2 of the CBA in this case:

The parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any matter or subject not removed by law or regulation from the area of collective bargaining, and that the understandings and agreements arrived at by the parties after the exercise of those rights and opportunities are set forth in the Agreement. The provisions of this Agreement constitute the entire Agreement between the parties, and all prior agreements, either oral or written, individual or collective, are hereby cancelled.

{¶ 18} The parties submitted two issues to the arbitrator. The first was whether "the grievance was filed on time to meet the requirements of the contract." The second was whether "the extension of the probationary period for [Sparks was] a violation of the contract." As to the first issue, the arbitrator found that even though Sparks first filed his grievance more than 45 days from his receipt of the January letter, his receipt of the May letter established a "continuing violation" of the CBA, making his May filing of the grievance timely. As to the second issue, the arbitrator found that the FOP and Mt. Healthy could extend the probationary period, but could not do so without Sparks's consent, and therefore ordered that Sparks be reinstated.

{¶ 19} The city moved the trial court to vacate the arbitrator's award, arguing that the arbitrator's rulings on both issues were in error. The trial court granted the city's motion and vacated the arbitration award in a February 13, 2017 entry. However, that entry did not specify which of the arbitrator's rulings was in error, or if both were in error. In its appellate brief, the FOP argues that the arbitrator's decisions that the two probationary-extension letters constituted a continuing violation and that section 10.1 of the CBA could not be modified absent the consent of the affected employee, were both proper. Appellant's brief at 6, 9-10. Because both issues are addressed in the appellant's brief, I address each in turn.

{¶ 20} As the majority stated, an arbitrator's award can be vacated where "[t]he arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." R.C. 2711.10(D). The city's argument is that the arbitrator exceeded his powers and imperfectly executed them by "fail[ing] to limit his decision to the clear language of the agreement." I agree, and would hold that the arbitrator's decisions on both issues presented improperly modified the terms of the CBA.

{¶ 21} Section 13.7 of the CBA provides that "[t]he arbitrator shall limit his decisions strictly to the interpretation, application, or enforcement to the specific Articles and Sections of this Agreement," and that the arbitrator "shall be without power or authority to make any decision: 1) contrary to, or inconsistent with, or modifying or varying in any way the terms of this Agreement or applicable laws[.]" (Emphasis added.) Ohio Office of Collective Bargaining , 59 Ohio St.3d at 180, 572 N.E.2d 71 ("[An arbitrator] is confined to the interpretation and application of the collective bargaining agreement and * * * is without authority to disregard or modify plain and unambiguous provisions.").

{¶ 22} Regarding whether Sparks's grievance was timely filed, section 13.6 of the CBA provides that "[w]ithin seven (7) calendar days of the incident or knowledge of the incident, but in no case later than forty-five (45) from the actual fact, which gave rise to the grievance, the aggrieved employee shall notify in writing his grievance with his Sergeant [sic] * * *." The city contends that the arbitrator exceeded his authority under the CBA by relying on a "continuing violation" theory to find that the grievance was timely filed. I agree. The CBA sets a clear and unambiguous period for filing a grievance, and does not allow for a "continuing violation." See Fairfield v. Am. Fedn. of State, Cty., and Mun. Emps., Ohio Council 8 , 12th Dist. Butler No. CA2007-11-267, 2008-Ohio-3891, 2008 WL 2955391, ¶ 15 ("The arbitrator's 'continuing violation' determination did not comport with, and in fact defeated, the plain and unambiguous three-day time limitation upon grievances.").

{¶ 23} However, I would find that Sparks filed his grievance within the period provided in the CBA, because the "actual fact, which gave rise to the grievance" did not occur until the city's May letter. While the January letter informed Sparks that his probationary period would be extended, it did not provide an end date for the extension. Sparks was not informed of any final decision regarding the extension until the May letter, and he filed his grievance within seven days of receiving this letter and the onset of the extension of the probationary period. I would hold that the violation did not occur until this final decision was issued, and therefore that the grievance was timely filed.

{¶ 24} Regarding whether a part-time officer's probationary period could be extended, section 10.1 of the CBA provides that "the probationary period shall begin the first day for which the employee receives compensation from the Employer following their Field Training Program and shall continue for a period of one calendar year." (Emphasis added.) This language is plain and unambiguous, and makes the one-year term of a probationary period mandatory. Independence Fire Fighters Assn. v. City of Independence , 121 Ohio App.3d 716, 722, 700 N.E.2d 909 (8th Dist.1997), quoting Detroit Coil v. Internatl. Assn. of Machinists & Aerospace Workers, Lodge No. 82 , 594 F.2d 575, 580 (6th Cir.1979) ("Terms in a collective bargaining agreement shall be given 'their ordinary meaning in the absence of evidence indicating that the parties to the contract intended to expand or otherwise deviate from that meaning.' "); Tonkens v. Tonkens , 1st Dist. Hamilton No. C-76645, 1977 WL 199789, *2 (Sept. 14, 1977) (referring to "shall" as meaning "mandatory" in the context of contract interpretation); Coseriu v. Coseriu , 8th Dist. Cuyahoga No. 74308, 1999 WL 754503, *1 (Sept. 23, 1999) (same). The parties and the arbitrator agreed that there is no provision in the collective bargaining agreement allowing for an extension of a probationary period.

{¶ 25} Furthermore, under section 23.1 of the CBA, if either party seeks to modify the agreement, they must provide notice of their intent "no earlier [than] one hundred and twenty (120) and no later than sixty (60) days prior to the expiration date." See R.C. 4117.14(B). Therefore, any changes to the agreement may only take effect following the agreement's expiration, as section 23.2 provides: "All sections of this Agreement shall remain in full force and effect until a new Agreement is reached." This language is plain and unambiguous, and mandates that modifications must be negotiated no sooner than 120 days prior to the expiration date. This is reinforced by section 23.3 of the CBA, which provides that the CBA may be reopened "for the sole purpose of negotiating a physical fitness program during the term of the agreement."

{¶ 26} In the arbitrator's words, the question was whether the union and the city can "ma[ke] an exception to clear and unambiguous language in the CBA for one individual." The arbitrator himself in addressing this pivotal question stated that he "searched through numerous classics in labor arbitration to help shed light on th[e] question" of whether "the Employer and the Union [are] able to alter the terms of their Contract for an individual member without the consent of that member." He ultimately turned to a law review article "entitled 'Individual Rights in Collective Agreements and Arbitration' by Clyde W. Summers of Yale Law School." 37 N.Y.U.L. Rev. 362 (1962). This article was the sole basis for the arbitrator's determination that the union and employer may make exceptions to a "clear and unambiguous" provision of a collective bargaining agreement for one employee where they have the consent of the affected employee.

{¶ 27} However, this article merely argues that individuals should have standing to "enforce substantive provisions in a collective agreement without being subject to the union's veto." Id. at 380. It does not stand for the proposition that an individual can consent to a one-time exception to a provision in a collective bargaining agreement. I am aware of no authority that would allow such an exception, and the article even recognizes that such exceptions are prohibited: "the individual employee * * * cannot bargain individually to vary the contract or set it aside; he can only demand compliance with its terms." Id. at 396. Moreover, if such an individual accommodation were allowed, this would defeat collective bargaining's purpose of having the employer-employee relationship "governed by an agreed-upon rule of law," and instead "leav[e] each and every matter subject to a temporary resolution dependent solely upon the relative strength, at any given moment, of the contending forces." United Steelworkers of Am. , 363 U.S. at 580, 80 S.Ct. 1347, 4 L.E.2d 1409.

{¶ 28} The majority interprets section 3.1 of the CBA, which recognizes the FOP as the "sole and exclusive representative for all part-time employees," as establishing that the union was Sparks's "agent" in the traditional legal sense of that term, and therefore that the union representative had authority to make decisions that would bind Sparks as the "principal" on any employment matters.

{¶ 29} However, this interpretation is inconsistent with the role of an "exclusive representative" in the context of labor relations, which is narrower than the role of an agent acting on behalf of a principal. Section 3.1 of the CBA provides that the FOP is "the sole and exclusive representative for all part-time employees * * * as set forth in the certification issued by the Ohio State Employment Relations Board. " (Emphasis added.) R.C. 4117.05 explains this "certification" process, and a review of R.C. Chapter 4117 as a whole clarifies that the employees' "exclusive representative" is their representative for the purposes of collective bargaining. See, e.g. , R.C. 4117.01(E) ; R.C. 4117.04 ; R.C. 4117.05. Collective bargaining is the "process by which an employer bargains with its employees collectively through the accredited representative of the employees regarding wages, hours, and working conditions." 51 Corpus Juris Secundum, Labor Relations, Section 192 (2017). See R.C. 4117.01(G).

{¶ 30} Thus, to the extent that an "exclusive representative" in a collective bargaining agreement is an "agent" in the traditional legal sense, it is only as an agent for the entire employee unit in negotiations with the employer, not an agent for each individual employee in every matter related to his or her employment. The authority cited by Judge Miller in his separate concurrence, Allis-Chalmers, 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123, supports this proposition. While Allis-Chalmers does state that "[t]he employee may disagree with many of the union decisions but is bound by them," the Court was in actuality discussing this principle in the context of collective bargaining:

National labor policy has been built on the premise that by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions. * * * Thus only the union may contract the employee's terms and conditions of employment, and provisions for processing his grievances; the union may even bargain away his right to strike during the contract term, and his right to refuse to cross a lawful picket line. The employee may disagree with many of the union decisions but is bound by them. The majority-rule concept is today unquestionably at the center of our federal labor policy. The complete satisfaction of all who are represented is hardly to be expected.

Id. at 180, 87 S.Ct. 2001.

{¶ 31} Accordingly, the arbitrator was correct in finding that section 10.1 of the CBA was clear and unambiguous, and was also correct in finding that the CBA has no provision allowing for a probationary extension. Once the arbitrator determined that there was no ambiguity, he should have enforced the plain language of the agreement. "If the wording of [an] agreement is plain and unambiguous, then no other steps of contract construction can be taken, and the document must be applied as written." Schraff & King Co., L.P.A. v. Casey , 2012-Ohio-5829, 983 N.E.2d 882, ¶ 23 (11th Dist.). The arbitrator "may construe ambiguous language," but "he is without authority to disregard or modify plain and unambiguous provisions." Ohio Office of Collective Bargaining , 59 Ohio St.3d at 180, 572 N.E.2d 71. The arbitrator therefore erred in seeking authority outside of the CBA itself to allow for a probationary period extension, and in finding that the express terms of the CBA could be modified with the consent of the employee.

{¶ 32} The issue before this court is whether the arbitrator exceeded his authority or imperfectly performed his duties. We must find that he did. The arbitrator went beyond the terms of sections 10.1, 13.6, and 13.7, and article 23 of the CBA in applying a "continuing violation" theory, and in finding that an exception could be made for one employee with that employee's consent. His award therefore "conflict[ed] with the express terms" of the CBA, and the trial court's judgment vacating the arbitrator's award was correct.

      Mt. Healthy had argued to the arbitrator that Sparks's grievance was not timely filed. Relying on a continuing-violation theory, the arbitrator concluded that the grievance had been timely filed, and he then proceeded to address the issue concerning the extension of Sparks's probation. In its motion to vacate the arbitrator's award, Mt. Healthy challenged both the arbitrator's findings that the grievance had been timely filed and that Sparks's consent was needed before the probationary period could be extended. While the trial court granted the motion to vacate, it did not specify on which ground its decision was based. In this appeal, we find that the FOP's assignments of error solely challenge the extension of Sparks's probationary period, and not the timeliness of the grievance.