author: M. POWELL, J.

text:
    C.S., Plaintiff, v. J.C., Defendant, and Fayette County Department of Job & Family Services, Appellant, and Fayette County Court of Common Pleas, Juvenile Division, Appellee.
    NO. CA2017-02-003
    Court of Appeals of Ohio, Twelfth District, Fayette County.
    December 4, 2017
    Judkins & Hayes, LLC, John W. Judkins, 303 West Jefferson Street, P.O. Box 33, Greenfield, Ohio 45123, for appellant.
    Mary E. King, 153 East Court Street, P.O. Box 70, Washington C.H., Ohio 43160, for appellee.
    OPINION ON RECONSIDERATION
   M. POWELL, J.

{¶ 1} This matter is before the court on a timely application for reconsideration filed by the Fayette County Department of Job & Family Services ("the Agency") pursuant to App.R. 26(A). The Agency requests that we reconsider our October 2, 2017 judgment entry which dismissed the Agency's appeal of a decision of the Fayette County Court of Common Pleas, Juvenile Division, granting temporary custody of 15-year-old C.S. to the Agency on the ground the appeal was moot. For the reasons that follow, we grant the Agency's application for reconsideration and affirm the juvenile court's decision.

{¶ 2} The Agency's involvement in this matter began in 2012 because of the volatile relationship between then 12-year-old C.S. and her mother ("Mother"). On October 23, 2013, the juvenile court adjudicated C.S. a delinquent child for violating a court order and placed C.S in the legal custody of her aunt ("Aunt"). Aunt lives in Tennessee; Mother lives in Ohio. In October 2016, while retaining legal custody, Aunt returned physical custody of C.S. to Mother. On November 17, 2016, Mother moved the juvenile court for legal custody of C.S. On January 10, 2017, a hearing on the motion was held. Mother and Aunt both testified.

{¶ 3} On January 12, 2017, the juvenile court ordered that C.S. be placed into the temporary custody of the Agency, and scheduled a review hearing for February 16, 2017. By judgment entry filed on February 22, 2017, the juvenile court continued the Agency's temporary custody of C.S. and ordered the Agency to file a case plan and a neglect and dependency case regarding C.S.

{¶ 4} The Agency appealed the juvenile court's January 12, 2017 judgment entry, arguing the juvenile court (1) violated the due process rights of the Agency, the child's parents, and Aunt, (2) failed to find that the grant of temporary custody was in the child's best interest, and (3) failed to make findings regarding reasonable efforts under R.C. 2151.419. In its amicus curiae brief, the juvenile court asserted that "[o]n February 22, 2017, [it] issued a Judgment Entry ordering [the Agency] to immediately file a Neglect/Dependency Complaint. [The Agency] subsequently filed the Neglect/Dependency Complaint and a separate case was initiated involving C.S." The Agency did not file a reply brief.

{¶ 5} On October 2, 2017, this court dismissed the Agency's appeal as follows:

Because temporary custody was continued with the Agency in February 2017, the Agency has presumably complied with the juvenile court's then order to file a neglect/dependency case and case plan regarding C.S., and the Agency is not disputing the juvenile court's assertion that the Agency "subsequently filed the Neglect/Dependency Complaint and a separate case was initiated involving C.S.," the issues presented are no longer "live." State ex rel. Gaylor v. Goodenow , 125 Ohio St.3d 407, 2010-Ohio-1844 [928 N.E.2d 728] (a case is moot when the issues are no longer "live"); In re Mathias , 12th Dist. Madison No. CA93-03-008 [1993 WL 282679], 1993 Ohio App. LEXIS 3690 (July 26, 1993) (a court's function is to render judgment in actual controversies where judgment can be carried into effect). Accordingly, the Agency's appeal is dismissed as moot.

C.S. v. J.C. , 12th Dist. Fayette No. CA2017-02-003 (Oct. 2, 2017) (Accelerated Calendar Judgment Entry).

{¶ 6} In its application for reconsideration, the Agency asserts that notwithstanding the juvenile court's February 22, 2017 judgment entry ordering the Agency to file a neglect/dependency case regarding the child, the "Agency has not filed such an action," and "the Amicus's contention that such an action was filed is simply false." Consequently, because "the issues brought [on] appeal remain 'live,' " the Agency asks this court to reconsider its judgment entry. The juvenile court did not file a response to the Agency's application for reconsideration.

{¶ 7} Given the Agency's foregoing assertion and the juvenile court's failure to file a response to the Agency's application for reconsideration, we find the Agency's application for reconsideration is well-taken. Accordingly, we vacate our October 2, 2017 Accelerated Calendar Judgment Entry, address the four assignments of error raised on appeal by the Agency, and hereby issue the following opinion in replacement of our October 2, 2017 judgment entry.

{¶ 8} Assignment of Error No. 1:

{¶ 9} THE TRIAL COURT ERRED IN AWARDING CUSTODY OF A MINOR CHILD TO THE FAYETTE COUNTY DEPARTMENT OF JOB & FAMILY SERVICES WHERE NO NOTICE WAS GIVEN TO EITHER THE LEGAL CUSTODIAN OR THE CHILD'S PARENTS THAT CUSTODY MIGHT BE GRANTED TO THE FAYETTE COUNTY DEPARTMENT OF JOB & FAMILY SERVICES, AND NO OPPORTUNITY TO BE HEARD ON THE ISSUE OF CUSTODY TO [THE] FAYETTE COUNTY DEPARTMENT OF JOB & FAMILY SERVICES WAS GIVEN TO EITHER THE LEGAL CUSTODIAN OR THE CHILD'S PARENTS.

{¶ 10} The Agency argues the juvenile court's January 12, 2017 decision awarding temporary custody of C.S. to the Agency violated the due process rights of both Mother and Aunt because neither relative was given notice that the juvenile court might take such an action, nor were they given an opportunity to be heard on the issue. However, neither Mother nor Aunt have appealed the juvenile court's decision and claimed any violation of their rights. The Agency may not assert these rights on appeal. The Agency's first assignment of error is accordingly overruled.

{¶ 11} Assignment of Error No. 2:

{¶ 12} THE TRIAL COURT ERRED IN AWARDING CUSTODY OF A MINOR CHILD TO THE FAYETTE COUNTY DEPARTMENT OF JOB & FAMILY SERVICES WHERE NO NOTICE WAS GIVEN TO THE AGENCY OF THE PROCEEDING.

{¶ 13} The Agency argues the juvenile court's grant of temporary custody to the Agency violated its due process rights because the Agency was neither notified of nor present at the hearing on Mother's legal custody motion, was not given notice the juvenile court was considering granting temporary custody to the Agency, and thus had no opportunity to be heard on the issue. The Agency does not cite any case law in support of its argument.

{¶ 14} Due process generally requires notice, a fair opportunity to be heard, and the right to produce testimony. In re Lyons , 12th Dist. Preble No. CA98-11-024, 1999 WL 988819, *2-3 (Nov. 1, 1999). We have held that while a juvenile court must observe some due process requirements, wide latitude is given to the juvenile court in conducting its proceedings. Id. at *3. Similarly, a juvenile court is afforded broad discretion when fashioning procedures to fit each particular case. See id. at *3.

{¶ 15} We find the Agency does not have a right to due process. The Ohio Supreme Court has held that a political subdivision may not assert a denial of due process against the state:

[A] political subdivision may not invoke the protection provided by the Constitution against its own state and is prevented from attacking the constitutionality of state legislation on the grounds that its own rights had been impaired. While there may be occasions where a political subdivision may challenge the constitutionality of state legislation, it is not entitled to rely upon the protections of the Fourteenth Amendment. A political subdivision, such as a school district, receives no protection from the Equal Protection or Due Process Clauses vis-a-vis its creating state.
We are persuaded that a school district is a political subdivision created by the General Assembly and it may not assert any constitutional protections regarding due course of law or due process of law against the state, its creator.

Avon Lake City School Dist. v. Limbach , 35 Ohio St.3d 118, 121-122, 518 N.E.2d 1190 (1988). See also Lawrence Twp., Stark Cty., Ohio, Bd. of Twp. Trustees v. Canal Fulton , 5th Dist. Stark No. 2007 CA 00010, 2007-Ohio-6115, 2007 WL 3408448 (political subdivisions have no cognizable due process claims as they are not "persons" within the meaning of the Due Process Clause); Delaney v. Testa , 128 Ohio St.3d 248, 2011-Ohio-550, 943 N.E.2d 546 (the state does not have right to due process).

{¶ 16} The Agency is an agency of Fayette County which is itself a political subdivision of the state of Ohio. The juvenile court, as a division of the Fayette County Common Pleas Court, is an arm of the state of Ohio exercising the judicial power of the state. See Ohio Constitution, Article IV, Section 1 ("The judicial power of the state is vested in * * * courts of common pleas and divisions thereof"). Consequently, we find that the Agency, as an agency of a political subdivision, does not have a cognizable due process claim.

{¶ 17} Additionally, Juv.R. 13(A) provides that "[p]ending hearing on a complaint, the court may make such temporary orders concerning the custody or care of a child who is the subject of the complaint as the child's interest and welfare may require." Pursuant to R.C. 5153.16(A)(3), one of the duties of a public children services agency ("PCSA") is to "[a]ccept custody of children committed to the public children services agency by a court exercising juvenile jurisdiction." There can be no denial of due process when a juvenile court acts within its jurisdiction and makes an order implicating a statutory duty of a PCSA.

{¶ 18} The record does suggest that the juvenile court's order placing C.S. into the temporary custody of the Agency without prior notice violated the Agency's conception of local norms of interagency courtesy. Whether this is so, violation of such norms is not a violation of procedural due process.

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

{¶ 20} Assignment of Error No. 3:

{¶ 21} THE TRIAL COURT ERRED IN AWARDING CUSTODY OF A MINOR CHILD TO THE FAYETTE COUNTY DEPARTMENT OF JOB & FAMILY SERVICES WHERE IT DID

NOT MAKE AN EXPRESSED FINDING OF FACT THAT SAID GRANT OF CUSTODY WAS IN THE BEST INTERESTS OF THE CHILD.

{¶ 22} The Agency argues the juvenile court erred in awarding temporary custody of C.S. to the Agency because the juvenile court failed to find "by clear and convincing evidence that custody to the Agency was in the best interest of the minor child." In support of its argument, the Agency cites R.C. 2151.414 and In re Arnold , 3d Dist. Allen Nos. 1-04-71 thru 10473, 2005-Ohio-1418, 2005 WL 696844. However, R.C. 2151.414 and In re Arnold are inapplicable as they solely concern permanent custody which is not involved here.

{¶ 23} As stated above, Juv.R. 13(A) allows a juvenile court to "make such temporary orders concerning the custody or care of a child who is the subject of the complaint as the child's interest and welfare may require. " (Emphasis added.) Thus, a juvenile court has authority to grant temporary custody as it deems necessary in light of the child's interest and welfare. See Renz v. Renz , 4th Dist. Athens No. 93 CA 1585, 1995 WL 23365 (Jan. 19, 1995) ; In re Rodriguez , 6th Dist. Ottawa No. OT-87-18, 1988 WL 15667 (Feb. 19, 1988).

{¶ 24} Although not so phrased, the record shows the juvenile court considered the interest and welfare of C.S. when it granted temporary custody to the Agency. The juvenile court adjudicated C.S. a delinquent child in 2013, granted legal custody to Aunt because of Mother's reported inability to handle C.S. any longer, and ordered C.S. to "attend school each and every school day." In granting temporary custody to the Agency in 2017, the juvenile court found that C.S. had "last attended school sometime before Christmas of 2016," "had failed to attend any days of school thus far in 2017," and was not enrolled in E.C.O.T.," and that Mother "ha[d] not shown any ability to handle the child as exhibited by the child's failure to attend school." Thus, the juvenile court properly determined that given Mother's inability or unwillingness to effectively parent C.S., the child's interest and welfare required it to grant temporary custody to the Agency.

{¶ 25} The Agency's third assignment of error is overruled.

{¶ 26} Assignment of Error No. 4:

{¶ 27} THE TRIAL COURT ERRED IN AWARDING CUSTODY OF A MINOR CHILD TO THE FAYETTE COUNTY DEPARTMENT OF JOB & FAMILY SERVICES WHERE THE AGENCY WAS NOT AFFORDED AN OPPORTUNITY TO MAKE REASONABLE EFFORTS TO PREVENT THE REMOVAL, AND THE COURT FAILED TO MAKE A FINDING OF FACT THAT REASONABLE EFFORTS WERE NOT REQUIRED OR WERE NOT POSSIBLE DUE TO EXIGENT CIRCUMSTANCES.

{¶ 28} The Agency argues the juvenile court erred in placing C.S. in the temporary custody of the Agency without making the requisite findings of fact regarding reasonable efforts under R.C. 2151.419.

{¶ 29} A juvenile court that removes a child from the child's home must determine "whether the public children services agency * * * that * * * will be given custody of the child has made reasonable efforts to prevent the removal of the child from the child's home[.]" R.C. 2151.419(A)(1). Conversely, if one of five separate circumstances apply, the juvenile court "shall make a determination that the agency is not required to make reasonable efforts to prevent the removal of the child from the child's home[.]" R.C. 2151.419(A)(2). Pursuant to R.C. 2151.419(B)(1), the juvenile court is required to issue written findings of fact setting forth the reasons supporting its determination under R.C. 2151.419(A)(1) or (2). R.C. 2151.419(A)(2) is not applicable as none of the five circumstances apply here.

{¶ 30} We are not persuaded the juvenile court was required to make findings regarding reasonable efforts under R.C. 2151.419(A)(1) or erred in failing to make the findings. The Ohio Supreme Court has held that "[b]y its terms, R.C. 2151.419 applies only [to] * * * adjudicatory, emergency, detention, and temporary-disposition hearings, and dispositional hearings for abused, neglected, or dependent children, all of which occur prior to a decision transferring permanent custody to the state." In re C.F. , 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 41 ; In re B.F. , 6th Dist. Lucas No. L-16-1094, 2017-Ohio-609, 2017 WL 691837. See also In re C.M.C. , 4th Dist. Washington No. 09CA15, 2009-Ohio-4223, 2009 WL 2569376 (finding that the R.C. 2151.419 [A][1] reasonable-efforts requirement does not apply to an unruly dispositional hearing because the issue of abuse, neglect, or dependency is not part of the case). While the juvenile court may have had concerns that C.S. was neglected or dependent when it granted temporary custody to the Agency on January 12, 2017, there were no allegations at the time that C.S. was neglected or dependent, nor had C.S. been adjudicated as such.

{¶ 31} Even if we were to find the juvenile court erred by failing to make the requisite findings under R.C. 2151.419, the error does not constitute reversible error because this court cannot provide an appropriate remedy to the Agency. See In re Milgrim , 8th Dist. Cuyahoga No. 77510, 2001 WL 112123 (Feb. 8, 2001). The juvenile court's February 22, 2017 judgment entry, which continued the Agency's temporary custody, indicates that following the grant of temporary custody to the Agency the month before, the Agency "immediately placed C.S. at One Way Farm," and "[was] working on a joint case plan including C.S. and her brother over whom the Agency has protective supervision." Following the hearing on Mother's motion, Mother was not in contact with the Agency, and Aunt informed the Agency she could not deal with C.S. We note that in its February 2017 judgment entry, the juvenile court made findings of fact regarding reasonable efforts under R.C. 2151.419. Given these circumstances, it would be pointless and would not help the Agency to remand this matter to the juvenile court for it to make findings under R.C. 2151.419 in support of its January 12, 2017 judgment entry.

{¶ 32} The Agency's fourth assignment of error is overruled.

{¶ 33} Judgment affirmed.

HENDRICKSON, P.J. and PIPER, J., concur.

      Pursuant to Juv.R. 2(F), Mother's motion for legal custody of C.S. is a "complaint" as it is "the legal document that sets forth the allegations that form the basis for juvenile court jurisdiction."


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Benjamin HOLLINGER, Defendant-Appellant
    No. 17-CA-15
    Court of Appeals of Ohio, Fifth District, Fairfield County.
    DATE OF JUDGMENT ENTRY: November 15, 2017
   CHRISTOPHER REAMER, 239 West Main Street, 101, Lancaster, OH 43130, For Plaintiff-Appellee.

JAMES MAYER III, 34 South Park Street, Mansfield, OH 44902, For Defendant-Appellant.

JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.

Gwin, P.J., {¶ 1} Appellant Benjamin Hollinger ["Hollinger"] appeals from the September 23, 2016 Order of the Fairfield County Court of Common Pleas overruling his motion to dismiss on double jeopardy grounds.

Facts and Procedural History

{¶ 2} The trial court found the following facts from the September 2, 2016 hearing.

{¶ 3} On July 15, 2016, Hollinger pled guilty to an OVI offense in Mansfield Municipal Court, his third OVI conviction in a six-year period.

{¶ 4} On July 18, 2016, Hollinger was cited at his home in Richland County for OVI because of a call to the Ohio State Highway Patrol at 1:19 p.m. regarding reckless driving and the striking of a mailbox. Hollinger was allowed to remain at home and the call was cleared at 3:07 p.m.

{¶ 5} Shortly thereafter, Hollinger returned to his car and began driving toward Hocking County. On Route 13 near Interstate 70 in Licking County, at approximately 4:24 p.m. the Ohio State Highway Patrol was called to the scene of a hit-skip. A driver at the scene stated, "I got ACDA'd by a blue vehicle." The driver's Chevy Malibu had been crashed into and thereafter struck a utility pole.

{¶ 6} Dwayne E. Bonham witnessed the hit-skip. He had followed Hollinger from Utica, through Licking County to State Route 256 before losing sight of the Hollinger's vehicle.

{¶ 7} At approximately 4:51 p.m., Trooper Myers of the Ohio State Highway Patrol clocked Hollinger's vehicle traveling 86 M.P.H. on State Route 37 near Carroll-Eastern Road in Fairfield County. The Trooper turned to follow Hollinger and in less than a mile from his first sighting, the Trooper found Hollinger involved in a two-vehicle accident. Hollinger was transported to Fairfield Medical Center.

{¶ 8} Because of Hollinger's actions on July 18, 2016, he was charged with OVI in Licking County to which he pled guilty and felony OVI in Fairfield County.

{¶ 9} On May 19, 2016, Hollinger filed a motion to dismiss in the Fairfield County Court of Common Pleas arguing that his actions in Licking and Fairfield Counties were the result of a continuing course of conduct and that the Fairfield County prosecution is barred by the Doctrine of Res Judicata and violates the Double Jeopardy Clause of the Fifth Amendment and Section 10, Article I of the Ohio Constitution.

{¶ 10} A hearing was held on Hollinger's motion on September 2, 2016. By Order filed September 23, 2016, the trial court overruled Hollinger's motion to dismiss. The trial court found that Hollinger's "behavior exhibited a separate animus which resulted in harm that is separate and identifiable." Therefore, the trial court held that Hollinger could be prosecuted for a separate offense of OVI in Fairfield County.

{¶ 11} On November 3, 2016, Hollinger entered a no contest plea to one count of driving while under the influence of alcohol, as a third offense in six years. On February 23, 2017, the trial court placed Hollinger on 5 years of Community Control sanctions and ordered that he serve 180 days in the Fairfield County jail with 174 days of credit.

Assignment of Error

{¶ 12} Hollinger raises one assignment of error,

{¶ 13} "I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS."

Law and Analysis

Standard of Review.

{¶ 14} We apply a de novo standard of review when reviewing the denial of a motion to dismiss an indictment on the grounds of double jeopardy. State v. Anderson , 148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 20.

Legal Standard-Double Jeopardy.

{¶ 15} The Fifth Amendment bars successive prosecutions only if the two offenses for which the defendant is prosecuted are the "same" for double jeopardy purposes. Heath v. Alabama , 474 U.S. 82, 87, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985).

{¶ 16} The principle behind the Double Jeopardy Clause " 'is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for the alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' " State v. Roberts , 119 Ohio St.3d 294, 2008-Ohio-3835, 893 N.E.2d 818, ¶ 11, quoting Green v. United States , 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The federal and state constitutions' double jeopardy protection further guards citizens against cumulative punishments for the "same offense." State v. Moss , 69 Ohio St.2d 515, 518, 433 N.E.2d 181 (1982). "[T]he Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter , 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535, 542 (1983). See, also , Moss , 69 Ohio St.2d at 518, 433 N.E.2d at 184-185. In Ohio v. Johnson , 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), the United States Supreme Court stated:

Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, United States v. Wiltberger , 5 Wheat. 76, 93, 5 L.Ed. 37 (1820), the question under the Double Jeopardy Clause whether punishments are 'multiple' is essentially one of legislative intent, see Missouri v. Hunter , 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).

{¶ 17} The Double Jeopardy Clause of the federal constitution "protects only against the imposition of multiple criminal punishments for the same offense, * * * and then only when such occurs in successive proceedings." (Citations omitted.) Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) ; State v. Martello , 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 8.

{¶ 18} In determining whether an accused is being successively prosecuted for the "same offense," the Ohio Supreme Court has adopted the so called "same elements" test articulated in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

State v. Zima , 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶ 18, citing State v. Best , 42 Ohio St.2d 530, 330 N.E.2d 421 (1975), paragraph three of the syllabus.

{¶ 19} Under Blockburger, "the Double Jeopardy Clause * * * prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes unless each statute 'requires proof of a fact which the other does not." State v. Tolbert , 60 Ohio St.3d 89, 90, 573 N.E.2d 617 (1991), quoting Blockburger at 304, 52 S.Ct. 180. "This test focuses upon the elements of the two statutory provisions, not upon the evidence proffered in a given case." State v. Thomas , 61 Ohio St.2d 254, 259, 400 N.E.2d 897 (1980), overruled on other grounds in State v. Crago , 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990), superseded by statute as stated in State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23.

The facts in the case at bar establishes that Hollinger is not being successively prosecuted for the "same offense."

{¶ 20} In the case at bar, Hollinger is not subjected to multiple punishments for the same offense.

{¶ 21} R.C. 2941.25, Multiple counts states:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 22} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Ohio Supreme Court revised its allied-offense jurisprudence,

1. In determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must evaluate three separate factors-the conduct, the animus, and the import.
2. Two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.

Ruff, at syllabus. The Court further explained,

A trial court and the reviewing court on appeal when considering whether there are allied offenses that merge into a single conviction under R.C. 2941.25(A) must first take into account the conduct of the defendant. In other words, how were the offenses committed? If any of the following is true, the offenses cannot merge and the defendant may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance-in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, and (3) the offenses were committed with separate animus or motivation.

{¶ 23} The offenses of OVI in Licking County and OVI in Fairfield County are, under the facts of this case, of dissimilar significance and have separate and identifiable harm. Hollinger contends that he drove but one time. He suggests therefore that he can only be punished one time for driving while under the influence. However, Hollinger's argument centers solely upon the OVI charge. Clearly, Hollinger can be charged and convicted of any other traffic offense that he committed in Fairfield County. Thus, this is not a case where the accused is simply driving under the influence and passing from one jurisdiction into another jurisdiction. In the case at bar, Hollinger was involved in an accident with another vehicle in Licking County. Hollinger voluntarily makes the choice not to stop, but to flee the scene of this accident. Hollinger enters Fairfield County and he continues to drive until he is involved in a two-vehicle accident in Fairfield County.

{¶ 24} Thus, Hollinger's continued driving into Fairfield County after leaving the scene of the accident in Licking County caused separate, identifiable harm, was committed separately and was committed with a separate motivation. Thus under Ruff, Hollinger's act of driving OVI in Licking County was separate and distinct from his act of driving while under the influence in Fairfield County. State v. Carozza , 5th Dist. Ashland No. 14-COA-028, 2015-Ohio-1783, 33 N.E.3d 556.

{¶ 25} Hollinger's sole assignment of error is overruled.

{¶ 26} The judgment of the Fairfield County Court of Common Pleas is affirmed.

Wise, John, J., and Baldwin, J., concur

      Appellant in his brief mistakenly refers to the motion filed May 19, 2016 as a "Motion to Suppress"; however a review of the record establishes that it was in fact a "Motion to Dismiss." See , Docket Entry # 27; T. Sept. 2, 2016 at 4.

      In Carozza, this Court granted Carozza's motion to re-open, and issued a supplemental opinion in the case that was filed June 8, 2015.


author: SEAN C. GALLAGHER, J.: MELODY J. STEWART, J., DISSENTING:

text:
    IN RE: M.W., et al., Minor Children
    [Appeal By Mother]
    No. 105565
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: November 16, 2017
    Mark Stanton, Cuyahoga County Public Defender, By: Erika B. Cunliffe, Assistant Public Defender, 310 Lakeside Avenue, Suite 200, Cleveland, Ohio 44113, Morgan L. Pirc, Assistant Public Defender, 9300 Quincy Avenue, 5th Floor, Cleveland, Ohio 44106, ATTORNEYS FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Anthony R. Beery, Assistant Prosecuting Attorney, C.C.D.C.F.S., 4261 Fulton Parkway, Cleveland, Ohio 44144, ATTORNEYS FOR APPELLEE, C.C.D.C.F.S.
    Troy M. Hough, 21887 Lorain Road, # 306, Cleveland, Ohio 44126, For D.D., Father.
    Richard D. Summers, McDonald Hopkins Co., L.P.A., 600 Superior Avenue, E., Suite 2100, Cleveland, Ohio 44114, Guardian ad litem for Children.
    Susan K. Jankite, 1253 Arlington Road, Lakewood, Ohio 44107, Guardian ad litem for Mother
    BEFORE: S. Gallagher, J., Stewart, P.J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} Appellant mother ("Mother") appeals from the orders awarding permanent custody of her two children, M.W. and D.D., to the Cuyahoga County Division of Children and Family Services ("CCDCFS"). Upon review, we affirm.

{¶ 2} On February 26, 2015, CCDCFS filed a complaint alleging M.W. and D.D. to be neglected and dependent children. Along with the complaint, CCDCFS filed a motion for predispositional temporary custody, which was granted by the court magistrate. The children were placed in the emergency custody of CCDCFS on March 10, 2015.

{¶ 3} A case plan was developed for Mother and the alleged father. The alleged father did not engage in any services or visit with the children during the pendency of the case. The case plan for Mother included parenting classes, domestic violence services, mental health services, and meeting the special needs of the children. The permanency plan was reunification.

{¶ 4} An adjudicatory hearing was held on June 23, 2015. The parents stipulated to an amended complaint, and the magistrate adjudicated the children as dependent. The magistrate's decision was adopted by the trial court.

{¶ 5} Among the allegations stipulated to in the amended complaint were that M.W. was previously adjudicated neglected and dependent because of concerns of domestic violence between Mother and the children's alleged father, that there was a need to ensure that the children receive services to address their developmental delays, and that Mother requires mental health treatment.

{¶ 6} The children were committed to the temporary custody of CCDCFS. On March 1, 2016, the trial court granted a motion for first extension of temporary custody. On June 16, 2016, CCDCFS filed a motion to modify temporary custody to permanent custody. The CCDCFS social worker involved in the case testified that there was still hope that "mom can turn things around * * * and that we can be able to take our motion off the table. It just wasn't able to happen in this case."

{¶ 7} The trial court conducted a hearing on January 24 and 25, 2017. There was no dispute that the children had been in the custody of CCDCFS for 12 or more months of a consecutive 22-month period.

{¶ 8} There was evidence that Mother engaged in case plan services. She completed two parenting classes, engaged in domestic violence services, and engaged in mental health services. However, at the time of the hearing, there was uncertainty as to whether Mother had benefitted from these services.

{¶ 9} There was evidence of a history of domestic violence in the home between Mother and the alleged father of the children, with the alleged father being the aggressor. After Mother's completion of a first domestic violence class, an incident occurred involving Mother and the alleged father, with Mother's oldest child, who is not involved in this case, present in the home. Mother was still actively engaged in domestic violence services at the time of the permanent custody hearing. There was evidence that Mother has maintained a relationship with the alleged father, who is in prison and due to be released in 2018.

{¶ 10} There was testimony concerning the developmental delays and special needs of the children. Both children receive mental health services and occupational therapy, and M.W. also receives speech therapy and physical therapy. The foster mother testified that she takes the children to appointments three to four days a week. The record reflects that the children had bonded with their foster mother. Although the foster mother did not plan to adopt the children, she was ensuring that their special needs were being met. She stated that she expressed to Mother the importance of keeping up with their appointments.

{¶ 11} There was major concern with Mother's level of involvement with the special needs of the children. Despite the recommendation of the social worker and efforts of the foster mother to involve Mother in the children's therapies and appointments, Mother attended only one appointment in two years and was late to that appointment.

{¶ 12} The doctor who performed a psychological evaluation of Mother identified concerns for Mother's parenting style, her lack of insight into why she is involved with CCDCFS, and her history of being in a relationship that involved domestic violence.

{¶ 13} There was testimony that Mother received mental health services at Murtis Taylor, but she was inconsistent in her engagement with these services. There was testimony that Mother was noncompliant with taking medication.

{¶ 14} There was evidence that Mother had obtained stable housing. Mother's visitation with the children had been moved to her home, but the visitation was moved out of the home after the domestic violence incident with the alleged father while her oldest child was in the home. Although certain concerns were expressed with regard to Mother's parenting, there was testimony that Mother's interaction with the children was appropriate and that the children loved their mother and were bonded with her.

{¶ 15} The guardian ad litem for the children made a recommendation for a second extension of temporary custody, though he had recommended permanent custody for the children in his written report. The guardian ad litem indicated Mother had just completed a parenting class and needed time to demonstrate that she had benefitted. Nevertheless, he admitted that Mother's failure to attend all but one of the children's appointments over a two-year period was a "major concern" and opined that Mother was not ready to reunify with the children. Likewise, the social worker testified that the children had been in the custody of the agency since March 2015 and that she did not believe the mother could be reunified with the children within the next two months.

{¶ 16} After considering the testimony presented, the trial court issued a journal entry for each child, journalized February 23, 2017, that terminated all parental rights and awarded permanent custody to CCDCFS. This appeal followed.

{¶ 17} Mother raises one assignment of error for our review, which challenges the trial court's decision to award permanent custody of the children to CCDCFS. Mother claims the trial court's decision is contrary to the evidence presented.

{¶ 18} R.C. 2151.414(B) allows a court to grant permanent custody of a child to a children services agency if, after a hearing, the court determines, by clear and convincing evidence, that permanent custody is in the best interest of the child and that any of the four conditions set forth in R.C. 2151.414(B)(1)(a)-(e) applies. The Supreme Court of Ohio has defined "clear and convincing evidence" as "that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

{¶ 19} There is no dispute that the condition under R.C. 2151.414(B)(1)(d) was met because the children had been in the temporary custody of CCDCFS for 12 or more months of a consecutive 22-month period. Mother challenges the trial court's determination that permanent custody was in the best interest of the children.

{¶ 20} If any of the conditions outlined in R.C. 2151.414(B)(1)(a)-(e) exists, the trial court may proceed to consider whether the grant of permanent custody to the agency is in the best interest of the child. In re J.G. , 8th Dist. Cuyahoga No. 100681, 2014-Ohio-2652, 2014 WL 2809032, ¶ 44. In conducting a best-interest analysis under R.C. 2151.414(D), "[t]he court must consider all of the elements in R.C. 2151.414(D) as well as other relevant factors. There is not one element that is given greater weight than the others pursuant to the statute." In re Schaefer , 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.

{¶ 21} In determining the best interest of a child, R.C. 2151.414(D)(1) directs the trial court to consider "all relevant factors," including, but not limited to the following: (1) the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; (2) the wishes of the child as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child; (3) the custodial history of the child; (4) the child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody; and (5) whether any of the factors set forth in R.C. 2151.414(E)(7) to (11) apply. R.C. 2151.414(D)(1)(a)-(e).

{¶ 22} Here, the trial court considered the evidence presented. Notwithstanding the recommendation of the guardian ad litem, upon considering all the relevant factors pursuant to R.C. 2151.414(D), the court found by clear and convincing evidence that an order of permanent custody is in the best interest of the children.

{¶ 23} The court found that father had neglected the children by failing to regularly visit, communicate with, or support the children; and that his repeated incarceration prevented him from providing care for the children. The court considered Mother's engagement in case plan services, but believed she had failed to benefit from them. The court recognized that Mother had been noncompliant in taking medication as prescribed and that she had failed to consistently attend her counseling. The court also found that "mother has not made reasonable efforts to acquire the needed knowledge to address the [children's] needs" as evidenced by "her failure to attend the speech, hearing and physical therapy sessions that the [children] participated in." Further, the court found that Mother had "demonstrated a lack of commitment towards the [children] by failing to end the relationship with the alleged father where she is the victim of [d]omestic [v]iolence." Although Mother takes issue with the findings of the trial court as being "(1) overstated, (2) wrong or outweighed by alternative factors and concerns," our review reflects that the trial court appropriately considered the relevant factors in determining the best interest of the children and that its findings are largely supported by competent, credible evidence in the record.

{¶ 24} Furthermore, the trial court acted within its discretion in choosing not to follow the oral recommendation of the guardian ad litem, who advocated for a second extension of temporary custody. A trial court is not bound to follow a guardian ad litem's recommendation. "Although the trial court was required to consider the guardian's recommendation as well as each of the other statutory best interest factors * * * '[t]he best interest test is a balancing test of several factors and the Supreme Court has stressed that no single factor is controlling.' " In re O.G. , 9th Dist. Lorain No. 12CA010294, 2013-Ohio-744, 2013 WL 792766, ¶ 24, quoting In re C.G. , 9th Dist. Summit Nos. 24097 and 24099, 2008-Ohio-3773, 2008 WL 2906526, ¶ 28. It is evident that a "major concern" in this matter was Mother's failure to attend all but one of the children's appointments over the pendency of the case; and several witnesses, including the guardian ad litem, opined that Mother was not ready to reunify with the children, who had been in temporary custody for nearly two years.

{¶ 25} Although the foster mother was not prepared to adopt the children, the Supreme Court of Ohio has recognized that "the current statutory framework does not expressly require the court to consider [the child's probability of being adopted] in making a best-interest determination, R.C. 2151.414(D)." In re T.R. , 120 Ohio St.3d 136, 2008-Ohio-5219, 896 N.E.2d 1003, ¶ 14. As stated in In re T.R. , "the court is not required to factor adoption possibilities into its analysis, and the agency will be bound to seek adoption for the child if permanent custody is granted[.]" Id. at ¶ 16. There is no doubt that when parental rights are terminated, the goal is to create "a more stable life for the dependent children and to facilitate adoption to foster permanency for children." In re N.B. , 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, 2015 WL 406036, ¶ 67, citing In re Howard , 5th Dist. Tuscarawas No. 85 A10-077, 1986 WL 8644, *2, 1986 Ohio App. LEXIS 7860, *5 (Aug. 1, 1986).

{¶ 26} We reiterate that it is the best interest of a child that is the pivotal factor in a permanency case, and that neglected and/or dependent children are entitled to a stable, secure, nurturing, and permanent home in the near term. In re N.B. , 8th Dist. Cuyahoga No. 105028, 2017-Ohio-1376, 2017 WL 1365573, ¶ 30. Our review of the record shows that the trial court's determination as to each child is supported by clear and convincing evidence and is not against the manifest weight of the evidence in the record. We overrule the assignment of error and affirm the trial court's decisions awarding permanent custody of each child to CCDCFS and terminating Mother's parental rights.

{¶ 27} Judgment affirmed.

FRANK D. CELEBREZZE, JR., J., CONCURS;

MELODY J. STEWART, P.J., DISSENTS WITH SEPARATE DISSENTING OPINION

MELODY J. STEWART, J., DISSENTING:

{¶ 28} I respectfully dissent from the majority decision in this case. The trial court abused its discretion by terminating Mother's parental rights. The evidence does not support a finding that the termination of Mother's parental rights would be in the best interest of the children under the circumstances of this case.

{¶ 29} As the majority notes, R.C. 2151.414(D)(1) sets forth factors for the court to consider when determining whether terminating parental rights is in the best interest of the child. Those factors include the interaction and interrelationship of the child with the parents, siblings, and foster parents; the custodial history of the child; and the child's need for a legally secure permanent placement and whether that placement can be achieved without a grant of permanent custody.

{¶ 30} In this case, Mother engaged in the case plan services and mental health services, she has stable housing, is appropriate with her children, and her children love her and are bonded with her. The primary concerns about Mother maintaining her parental rights center around domestic violence issues with the alleged father and Mother's lack of attendance to her children's mental health, occupational therapy, physical therapy, and speech therapy appointments.

{¶ 31} The alleged father is incarcerated, and at the time of the permanent custody hearing, Mother was still actively engaged in domestic violence services. Furthermore, although the lack of initiative in routinely attending her children's appointments could, admittedly, be seen as demonstrating a lack of commitment to her children, there was no evidence that attending these appointments was required of Mother or a part of her case plan. The children's foster mother is responsible for making sure the children get to their appointments. And, although the foster mother stressed to Mother the importance of keeping up with the appointments, what is not clear is whether Mother understood this expression to mean that it is important to keep up with them now or when/if she gets her children back. To be sure, the evidence shows that Mother was told about the various appointments, but not that her attendance was required. As such, it may not have been clear to Mother that reunification was predicated on her attending the children's appointments while the foster mother was still responsible for taking them.

{¶ 32} Finally, the most salient reason it appears that terminating Mother's parental rights at this time is an abuse of discretion is due to the fact that doing so would not change the children's status. The foster mother is not interested in adopting the children and will continue to foster them. This status can be maintained while mother has clear and specific expectations relayed to her on what is required to maintain her parental rights and get her children back. This is not a case where the parent has not made significant strides toward reunification. And because the children will continue to be well cared for in the foster mother's home, regardless of whether Mother's rights are terminated, extending the opportunity for reunification seems to be in the best interest of the children under the circumstances of this case, while terminating Mother's parental rights does not. I would find, therefore, that the trial court abused its discretion.

      As held in In re T.R. , although R.C. 2151.413(E)"requires a children-services agency seeking permanent custody of a child to update the child's case plan to include adoption plans," the statute "does not require the agency to perform this action before the juvenile court rules on the motion for permanent custody." Id. at ¶ 8.


author: SEAN C. GALLAGHER, J.:

text:
    Mark N. FOURTOUNIS, et al., Plaintiffs-Appellants v. Theologos VERGINIS, et al., Defendants-Appellees
    No. 105349
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: November 16, 2017
    Matthew B. Ameer, Law Offices of Matthew Ameer L.L.C., 326 North Court Street, Medina, Ohio 44256, ATTORNEY FOR APPELLANTS
    David Ross, Holly M. Wilson, Reminger Co., L.P.A., 101 West Prospect Avenue, Suite 1400, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEES
    BEFORE: S. Gallagher, J., Boyle, P.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} Plaintiffs-appellants Mark N. Fourtounis ("Fourtounis"), Nikolas and Marika Fourtounis, Nikolas and Marika Fourtounis Living Trust, and Global Outdoor Solutions appeal (1) the trial court's denial of their motion for default judgment, and (2) the trial court's grant of summary judgment in favor of defendants-appellees Theologos Verginis and Benesch, Friedlander, Coplan, and Aronoff, L.L.P. ("the law firm"). Upon review, we affirm the rulings of the trial court.

Background

{¶ 2} Fourtounis and Evangelos Stamatopoulos were business partners from 2010 until 2012. In the process of unwinding their business relationship, a dispute arose concerning various pieces of business equipment. Fourtounis believed that a settlement agreement signed by Stamatopoulos addressed the disposition of the assets, and Stamatopoulos argued that he was forced to sign the agreement under duress. After being denied access to the business equipment by Fourtounis, Stamatopoulos retained the legal services of attorney Verginis.

{¶ 3} In June 2012, Verginis filed a verified complaint for replevin along with an emergency motion for possession of property to protect his client's interest in the business equipment. Attached to the motion was an affidavit executed by Stamatopoulos in which he stated his belief that appellants were holding his equipment for ransom, that they were using the equipment for their own personal gain, and that there was reason to believe they would remove the equipment from the jurisdiction of the court. The motion did not mention the settlement agreement.

{¶ 4} After prejudgment possession of the property had been obtained, attorney Verginis withdrew from the representation of Stamatopoulos in March 2013, and the litigation continued with other counsel. The underlying litigation was ultimately concluded in favor of Fourtounis.

{¶ 5} On June 27, 2014, appellants filed a complaint against attorney Verginis and his law firm. The complaint raised six causes of action against appellants that arose from actions that Verginis took while representing Stamatopoulos and Lighting Capital Holdings, L.L.C., in the underlying suit that was filed against Fourtounis.

{¶ 6} Appellees filed a motion to dismiss that was granted by the trial court. On appeal, the dismissal was affirmed as to two causes of action, including a 42 U.S.C. 1983 action and a claim for intentional infliction of emotional distress, and was reversed and remanded on the remaining claims of civil conspiracy, malicious prosecution in a civil proceeding, third-party legal malpractice, and vicarious liability. Fourtounis v. Verginis , 8th Dist. Cuyahoga No. 102025, 2015-Ohio-2518, 2015 WL 3899355 ( Fourtounis I ).

{¶ 7} The case was remanded to the trial court, and a case management conference was held on September 3, 2015, with all parties present. On September 8, 2015, new counsel for Verginis entered a notice of appearance. On October 22, 2015, appellants filed a motion for default judgment. The next day, appellees filed an answer and a brief in opposition to the motion for default judgment. On October 28, 2015, the trial court denied the motion for default judgment and deemed the answer timely filed.

{¶ 8} Following the completion of discovery, appellees filed a motion for summary judgment that was opposed by appellants. The trial court granted summary judgment. The trial court recognized that Verginis testified during his deposition that he was unaware of the existence of the settlement agreement at the time he filed the replevin action. The trial court proceeded to determine that (1) the third-party malpractice claim failed because there is "no evidence Verginis acted with malicious intent while advocating for his clients in the Underlying Case," (2) the malicious prosecution claim failed because there was no evidence to establish Verginis possessed an actual intent to harm appellants during the underlying case and cannot satisfy the malice requirement, (3) appellants conceded their civil conspiracy claim failed as a matter of law, and (4) summary judgment was warranted on the vicarious liability claim. Appellants timely filed this appeal.

Default Judgment

{¶ 9} Under their first assignment of error, appellants challenge the trial court's denial of their motion for default judgment. In this matter, appellants appealed the trial court's ruling on the motion to dismiss. Upon remand, appellants moved for default judgment because an answer had not been timely filed in accordance with Civ.R. 12(A). Appellees responded by filing an answer and a brief in opposition to the motion for default judgment.

{¶ 10} In their brief in opposition, appellees argued that they had diligently defended the lawsuit and that an extension of time was warranted under Civ.R. 6(B) because of excusable neglect. They asserted the answer was delayed due to oversight, noting the lengthy appeal from the ruling on the motion to dismiss, the subsequent remand, and the retention of new counsel. They further advocated for resolving the matter on the merits.

{¶ 11} Civ.R. 55(A) allows for a default judgment when a defendant fails "to plead or otherwise defend" an action in compliance with the Ohio Rules of Civil Procedure. Civ.R. 6(B)(2) allows for a court, in its discretion, to permit a late pleading "upon motion made after the expiration of the specified period * * * where the failure to act was the result of excusable neglect." The discretion granted under Civ.R. 6(B)(2) is not unlimited, and there must be a showing of excusable neglect. Davis v. Immediate Med. Servs ., 80 Ohio St.3d 10, 14-15, 1997-Ohio-363, 684 N.E.2d 292. "A trial court's decision to either grant a default judgment in favor of the moving party, or allow the defending party to file a late answer pursuant to Civ.R. 6(B)(2) upon a finding of excusable neglect, will not be reversed absent an abuse of discretion." Huffer v. Cicero , 107 Ohio App.3d 65, 74, 667 N.E.2d 1031 (4th Dist.1995), citing Miller v. Lint , 62 Ohio St.2d 209, 404 N.E.2d 752 (1980), and McDonald v. Berry , 84 Ohio App.3d 6, 616 N.E.2d 248 (8th Dist.1992).

{¶ 12} "[T]he test for excusable neglect under Civ.R. 6(B)(2) is less stringent than that applied under Civ.R. 60(B)." State ex rel. Lindenschmidt v. Bd. of Commrs. of Butler Cty. , 72 Ohio St.3d 464, 466, 1995-Ohio-49, 650 N.E.2d 1343. The determination must take into consideration all the surrounding facts and circumstances, with the admonition that cases should be decided on their merits, where possible. Id.

{¶ 13} Considering all the surrounding facts and circumstances herein, we find that excusable neglect was demonstrated and that the trial court did not abuse its discretion by deeming the answer timely and denying the motion for default judgment. As discussed above, appellees had vigorously defended the action by filing a motion to dismiss and litigating the appeal. Appellees continued to actively defend and participate in the action upon remand, and retained new counsel, who immediately filed an answer upon the filing of the motion for default judgment. The opposing party was not prejudiced by the delay in pleading, and the circumstances herein reflect an oversight and the absence of willfulness or bad faith. Appellants' first assignment of error is overruled.

Summary Judgment

{¶ 14} Under their second assignment of error, appellants challenge the trial court's decision to grant appellees' motion for summary judgment. Appellate review of summary judgment is de novo, governed by the standard set forth in Civ.R. 56. Argabrite v. Neer , 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 14. Summary judgment is appropriate only when "[1] no genuine issue of material fact remains to be litigated, [2] the moving party is entitled to judgment as a matter of law, and, [3] viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach a conclusion only in favor of the moving party." Id ., citing M.H. v. Cuyahoga Falls , 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12.

{¶ 15} Following the FourtounisI appeal, the case proceeded on the claims of civil conspiracy, malicious prosecution in a civil proceeding, third-party legal malpractice, and vicarious liability. Appellees did not oppose summary judgment on the claim for civil conspiracy and have not challenged that claim herein. They have challenged the trial court's decision to grant summary judgment on the remaining claims.

1. Malicious Civil Prosecution and Third-Party Legal Malpractice

{¶ 16} Initially, we address the contention that the third-party malpractice claim is time-barred. The statute of limitations for a legal malpractice claim is one year after the cause of action accrued. R.C. 2305.11(A). The cause of action accrues when there is a cognizable event by which the plaintiff discovers or should have discovered the injury giving rise to a claim and is put on notice of a need to pursue his possible remedies against the attorney, or when the attorney-client relationship for that particular transaction terminates, whichever occurs later. Zimmie v. Calfee, Halter & Griswold , 43 Ohio St.3d 54, 538 N.E.2d 398 (1989), syllabus.

{¶ 17} Fourtounis argues that the cognizable event occurred at the latest in July 2012 when Verginis brought the settlement agreement to the trial court's attention and argued it was invalid. The record reflects that at a July 6, 2012 emergency hearing, appellants through their former counsel claimed the disputed equipment was subject to a "valid cognovit note * * * as well as a valid settlement agreement" that had been executed by Stamatopoulos and members of the Fourtounis family. In response, Verginis argued at the hearing that the settlement agreement was not valid, stating "the settlement agreement they are relying upon was never signed by Lightning Contracting or Lightning Capital, only Mr. Stamatopoulos." Fourtounis maintains this would have been sufficient to alert a reasonable person that an improper act may have been committed and that further investigation is needed.

{¶ 18} Appellants argue that it was during depositions that were taken in December 2013 and January 2014 in the underlying litigation that they discovered Verginis's purported involvement with and advance knowledge of the settlement agreement before he filed the replevin action and the supporting documents. Therefore, appellants maintain that the complaint, which was filed on June 27, 2014, was filed within the one-year statute of limitations.

{¶ 19} Our review reflects that arguably appellants were not alerted to Verginis's alleged involvement with and prior knowledge of the settlement agreement until the depositions were taken. The statements made at the July 2012 hearing were not suggestive of an improper act by Verginis or a need to investigate a potential third-party legal malpractice claim. Therefore, we are unable to conclude that summary judgment was warranted on the basis of the statute of limitations. Accordingly, we shall review the trial court's determination on the merits of the claim.

{¶ 20} In order to establish a claim of malicious civil prosecution, a plaintiff must establish prior proceedings were initiated or continued with malice and without probable cause, the prior proceedings ended in the injured party's favor, and a seizure of the injured party or his property during the prior proceedings has occurred. Foley v. Univ. of Dayton , 150 Ohio St.3d 252, 2016-Ohio-7591, 81 N.E.3d 398, ¶ 14, citing Trussell v. Gen. Motors Corp ., 53 Ohio St.3d 142, 144, 559 N.E.2d 732 (1990) ; Robb v. Chagrin Lagoons Yacht Club , 75 Ohio St.3d 264, 1996-Ohio-189, 662 N.E.2d 9, syllabus.

{¶ 21} With regard to a third-party legal malpractice claim, under Ohio law, "an attorney may not be held liable by third parties as a result of having performed services on behalf of a client, in good faith, unless the third party is in privity with the client for whom the legal services were performed, or unless the attorney acts with malice." Simon v. Zipperstein , 32 Ohio St.3d 74, 76, 512 N.E.2d 636 (1987), citing Scholler v. Scholler , 10 Ohio St.3d 98, 462 N.E.2d 158 (1984), paragraph one of the syllabus. The third-party legal malpractice claim herein is premised upon the attorney allegedly acting with malice.

{¶ 22} "Malice" is indicative of "the state of mind under which a person intentionally does a wrongful act without a reasonable lawful excuse and with the intent to inflict injury under circumstances that the law will imply an evil intent." Criss v. Springfield Twp ., 56 Ohio St.3d 82, 85, 564 N.E.2d 440 (1990), citing Black's Law Dictionary 956 (6th Ed.1990). "Malice" means "an improper purpose, or any purpose other than the legitimate interest of bringing an offender to justice." Criss at 85, 564 N.E.2d 440, citing Black's , and Keeton, Dobbs, Keeton & Owen, Prosser and Keeton on the Law of Torts , Section 119, 883 (5th Ed.1984).

{¶ 23} Appellants argue that there is a genuine issue of material fact as to whether Verginis acted with malice. It is their position that Verginis knew about the settlement agreement prior to the ex parte filings in the replevin action. During his deposition, Verginis testified unequivocally that he did not know that the settlement agreement existed at the time he filed the ex parte pleadings in the replevin action. He stated that he did not become aware of the settlement agreement until sometime after the replevin action was filed and that he then brought it to the court's attention. Further, the replevin action was supported by Stamatopoulos's sworn affidavit, and Verginis indicated he believed his client was telling the truth.

{¶ 24} Appellants rely upon deposition and trial testimony from the underlying litigation to suggest an inference of knowledge can be established. However, their asserted inference is based on no more than vague testimony and speculation.

{¶ 25} During his deposition in the underlying litigation, Blaise Brucardo, the comptroller for Global Outdoor Solutions, testified that he did not know who was representing Stamatopoulos in March 2012. Although he recalled meeting with Verginis while the settlement agreement was being negotiated and discussing the settlement agreement with Verginis, he testified that he "honestly can't say" who was representing Stamatopoulos in mid-March 2012. Further, although Brucardo indicated he "would think" Verginis was representing Stamatopoulos, he testified he "honestly could not say" when Verginis became involved. Likewise, Stamatopoulos never testified that Verginis represented him in negotiating the settlement. He testified that he did not recall who assisted him in negotiating the settlement. The remainder of the testimony and evidence relied upon by appellants similarly fails to support any reasonable inference of malice. Although appellants claim inferences can be drawn, their argument is purely speculative.

{¶ 26} Construing the evidence most strongly in favor of the nonmoving party, appellants have failed to create a genuine issue of material fact as to whether Verginis knew of the settlement agreement when the replevin action was filed. Ultimately, after reviewing the testimony and exhibits in the record, we agree with the trial court that there is no evidence that Verginis acted with malice. Accordingly, summary judgment was properly granted on the claims of malicious civil prosecution and third-party legal malpractice.

2. Vicarious Liability

{¶ 27} Under Ohio law, "a law firm may be vicariously liable for legal malpractice only when one or more of its principals or associates are liable for legal malpractice." Natl. Union Fire Ins. Co. v. Wuerth , 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, ¶ 26. "The vicarious liability of a law firm and its principals * * * presupposes that a firm principal or employee is liable on one or more claims * * * and considers when the firm itself and each of its principals share in that liability." (Emphasis sic.) Id. at ¶ 25, quoting Restatement of the Law 3d, The Law Governing Lawyers, Section 58, Comment a (2000). Because the vicarious liability claim is derivative of the malicious prosecution and third-party legal malpractice claims against Verginis, appellees are also entitled to summary judgment on the claim for vicarious liability.

{¶ 28} Appellants' second assignment of error is overruled.

{¶ 29} Judgment affirmed.

MARY J. BOYLE, P.J., and LARRY A. JONES, SR., J., CONCUR

      We note that the trial court did not address the statute of limitations argument and decided the merits of the claim.

      We decline to address appellees' arguments regarding collateral estoppel and expert testimony, which were not addressed by the trial court and are not necessary to the disposition of this appeal.